Environmental law in Australia [9th edition.] 9780409341942, 0409341940

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Environmental Law in Australia 9th edition Gerry Bates LLB (Hons), PhD (Birm) Specialist in Environmental Law and Policy LexisNexis Butterworths Australia 2016

LexisNexis AUSTRALIA LexisNexis Butterworths 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au ARGENTINA LexisNexis Argentina, BUENOS AIRES AUSTRIA LexisNexis Verlag ARD Orac GmbH & Co KG, VIENNA BRAZIL LexisNexis Latin America, SAO PAULO CANADA LexisNexis Canada, Markham, ONTARIO CHILE LexisNexis Chile, SANTIAGO CHINA LexisNexis China, BEIJING, SHANGHAI CZECH REPUBLIC Nakladatelství Orac sro, PRAGUE FRANCE LexisNexis SA, PARIS GERMANY LexisNexis Germany, FRANKFURT HONG KONG LexisNexis Hong Kong, HONG KONG HUNGARY HVG-Orac, BUDAPEST INDIA LexisNexis, NEW DELHI ITALY Dott A Giuffrè Editore SpA, MILAN JAPAN LexisNexis Japan KK, TOKYO KOREA LexisNexis, SEOUL MALAYSIA LexisNexis Malaysia Sdn Bhd, PETALING JAYA, SELANGOR NEW ZEALAND LexisNexis, WELLINGTON POLAND Wydawnictwo Prawnicze LexisNexis, WARSAW SINGAPORE LexisNexis, SINGAPORE SOUTH AFRICA LexisNexis Butterworths, DURBAN SWITZERLAND Staempfli Verlag AG, BERNE TAIWAN LexisNexis, TAIWAN UNITED KINGDOM LexisNexis UK, LONDON, EDINBURGH USA LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN:

Bates, G M (Gerard Maxwell). Environmental law in Australia. 9th edition. 9780409341935 (pbk).

Notes: Subjects: Dewey Number:

9780409341942 (ebk). Includes index. Environmental law — Australia. 344.94046

© 2016 Reed International Books Australia Pty Limited trading as LexisNexis. 1st edition, 1983; 2nd edition, 1987; 3rd edition, 1992; 4th edition, 1995; 5th edition, 2002 (reprinted 2005); 6th edition, 2006 (reprinted 2009 (twice)); 7th edition, 2010 (reprinted 2012 (twice)); 8th edition, 2013 (reprinted 2014 and 2015). This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Myriad Pro and Minion Pro. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface Since the eighth edition of this book was published in 2013, legislative reform and government policy initiation in most jurisdictions have continued at an accelerated rate. We have seen the demise of the Clean Energy legislation in favour of the Emissions Reduction package, the roll out of biodiversity offsets across all jurisdictions, new national measures on biosecurity, and a host of new cases and legislative reforms that build on the implementation and interpretation of existing laws. And finally, we also have a new global agreement to limit carbon emissions. Defending the environment through the courts and tribunals has come under scrutiny from some governments, which have tried to wind back the ability of ordinary citizens to question government compliance with environmental laws and test the quality of decision-making. Public interest environmental litigation has been hit by the removal of legal aid and withdrawal of funding from Environmental Defenders Offices. Nevertheless, this will not deter citizens, or the organisations that support them, from questioning the legality or quality of government decision-making. As the cases show, the courts and tribunals will not be distracted by the expressed frustrations of government, or by the loud voices of those that have the ear of government. They will continue, as they always have, to interpret the intent and the substance of environmental laws, and the quality of decision-making under those laws, in an objective and independent manner. Like the stock market, governmental support for environmental regulation waxes and wanes. ‘Green-tape reduction’ is trendy with some governments, but the trend line representing environmental regulation is always clearly upward, as environmental policies and regulation respond to democratic expressions of concern, and the findings and advice of science. Encouragement of voluntary action is always welcome, but it does not necessarily establish a ‘level playing field’. As the consequences of ‘a climate on steroids’ begin to take hold, laws that command and encourage appropriate action to manage development, control pollution, ensure the uptake of renewable sources of energy, and protect biodiversity, will be needed ever more urgently. I fully expect that in the next edition of this book,

I will be able to report on further serious reforms to environmental policies supported by complementary environmental laws. As with previous editions, Environmental Law in Australia will be supported with periodic updates that will try to keep the reader up to date with changes to legislation and significant case law. Thanks to Lachlan, Euan and Annabel for providing the musical background that inspires the continuation of this work.

Gerry Bates Sydney January 2016

Table of Cases References are to paragraph numbers

A Abacus Funds Management v Sunshine Coast Regional Council [2012] QPEC 46 …. 10.36 Abacus Property Group v Ashfield Municipal Council [2009] NSWLEC 1097 …. 10.23 Aberline Associates Pty Ltd v Sutherland Shire Council [2009] NSWLEC 1335 …. 10.23 Able Demolitions & Excavations Pty Ltd v Yarra Ranges Shire Council [2008] VSC 294 …. 16.17 Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1996) 92 LGERA 212 …. 19.30 — v — (1997) 93 LGERA 345 …. 19.30 Acciona Energy Oceania Pty Ltd v Corangamite Shire Council [2008] VCAT 1617 …. 11.58, 17.57 Ackroyd v McKechnie (1986) 66 ALR 287 …. 5.43, 5.45, 14.7 — v Whitehouse [1985] 2 NSWLR 239 …. 22.32 ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 …. 21.6 Adams v Advocate General for Scotland [2002] UKHRR 1189 …. 2.46 ADI Ltd v Hawkesbury City Council (2001) 117 LGERA 117 …. 19.55 AGC (Advances) Ltd v Roads and Traffic Authority of New South Wales (1993) 30 NSWLR 391 …. 11.14 AGC Earthmoving Group Pty Ltd and Shire of Mundaring, Re [2008] WASAT 151 …. 11.76 Agonic Holdings Pty Ltd v Lithgow City Council [2008] NSWLEC 1347 …. 8.78

Ajka Pty Ltd and Australian Fisheries Management Authority [2001] AATA 258 …. 18.46 Al Oshlack v Iron Gates Pty Ltd [1997] NSWLEC 89 …. 14.81 Alanvale Pty Ltd v Southern Rural Water [2010] VCAT 480 …. 8.67, 17.57 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 …. 2.66, 2.67, 7.14, 7.15 Alcock v Commonwealth of Australia [2009] FCA 820 …. 18.48 — v — [2012] FCA 524 …. 18.48 Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17 …. 8.32, 8.33, 17.55 Alec Finlayson Pty Ltd v Armidale City Council (1994) 51 FCR 378; 84 LGERA 225; 123 ALR 155 …. 3.29, 16.25 Alexander v District Council of Robe [2009] SAERDC 4 …. 18.57 — v Yass Valley Council [2011] NSWLEC 148 …. 22.66 Ali v Liverpool City Council [2009] NSWLEC 107 …. 19.55 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 …. 2.67 Allders International Pty Ltd v Commissioner for State Revenue (Victoria) (1996) 140 ALR 189 …. 5.46 Allen v Gulf Oil Refining Ltd [1981] AC 1001 …. 3.44, 3.45 — v United Carpet Mills Pty Ltd [1989] VR 323 …. 20.39, 20.40, 20.79 Alliance to Save Hinchinbrook v Chief Executive, Environmental Protection Agency (2006) 145 LGERA 32; [2006] QSC 84 …. 8.23, 12.62, 17.55, 19.34, 19.35, 22.59 — v Cook [2005] QSC 355 …. 21.36 Alphacell Ltd v Woodward [1972] 2 All ER 475 …. 20.32, 20.43, 20.49 Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 …. 19.30 Alpharma Inc v Council T-70/99 …. 8.74 Altamura v Director of Fisheries Policy, South Australia [2003] SASC 277 …. 18.48

Alumino (Aust) Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (NSW) [1996] NSWLEC 102 …. 8.63 And Jombi and Minister for the Environment and Heritage [2004] AATA 1380 …. 14.5 Anderson v Ballina Shire Council [2006] NSWLEC 76 …. 22.57 — v Director-General, Department of Environment and Climate Change (2008) 163 LGERA 400; [2008] NSWCA 337 …. 7.27, 8.28, 8.39, 8.40, 8.78, 22.57, 22.65 — v Director-General, Department of Environment and Conservation (2006) 144 LGERA 43 …. 8.78, 22.34, 22.57 — v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 …. 22.55, 22.57, 22.70, 22.72 Anderson on behalf of Numbahjing Clan within Bundjalung Nation v NSW Minister for Planning (No 2) (2008) 163 LGERA 132 …. 21.25, 21.29 Andreae v Selfridge & Co Ltd [1937] 3 All ER 255 …. 3.21 Angel and Department of Arts, Heritage and Environment, Re (1986) 9 ALD 113 …. 22.24 Animal Liberation v Conservator of Flora and Fauna (Administrative Review) [2009] ACAT 17 …. 8.25, 8.53 — v — [2014] ACAT 35 …. 14.80 Animal Liberation Ltd v Department of Environment and Conservation [2007] NSWSC 221 …. 19.37 Animals’ Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173 …. 19.35 Annetts v McCann (1990) 170 CLR 596 …. 22.40 Anthony Lagoon Station v Maurice (1987) 74 ALR 77 …. 22.53 Antoniou v Roper (1990) 70 LGRA 351 …. 10.9, 22.40 Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2007) 97 ALD 398; [2007] FCA 1480 …. 6.9, 6.18, 14.25 — v — [2008] FCAFC 3 …. 6.13, 6.15, 6.18, 22.46 Anzbrook Pty Ltd v Minister for the Environment, Heritage and the Arts [2010] FMCA 34 …. 14.5

APP Corp Pty Ltd v City of Perth [2008] WASAT 291 …. 8.53 — v — [2011] WASAT 132 …. 8.53 Architype Australia Pty Ltd v Yarra City Council [2009] VCAT 662 …. 16.45 Argentum Reductions (UK) Ltd, Re [1975] 1 WLR 186 …. 19.38 Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2013] ACTCA 51 …. 19.18, 19.35 — v — [2014] HCA 50 …. 19.28 Armidale City Council v Alec Finlayson Pty Ltd (1999) 104 LGERA 9 …. 3.29, 3.30, 16.25, 16.27 Arnold v Minister Administering Water Management Act 2000 [2008] NSWCA 338 …. 5.22 — v — [2010] HCA 3 …. 2.31, 5.1, 5.22, 5.36 Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607 …. 21.24, 21.40, 22.24 Arora Construction Pty Ltd v Gold Coast City Council [2012] QPEC 52 …. 18.19 Asbestos case (Canada v France) ‘European Communities — Measures Affecting Asbestos and Asbestos-containing Products’, Report, 12 March 2001 …. 4.35 Asher v Melbourne Water (General) [2009] VCAT 1079 …. 1.24 Ashfield Municipal Council v Armstrong [2003] NSWCA 353 …. 9.53 Ashton Coal Operations Pty Ltd v Director-General, Department of Environment, Climate Change and Water (No 3) [2011] NSWLEC 1249 …. 8.40, 8.78 — v Hunter Environment Lobby Inc [2015] NSWCA 358 …. 18.62 Ashworth v Victoria [2003] VSC 194 …. 18.20 Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 …. 7.18 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 …. 22.71, 22.72, 22.74 Atkinson v Newcastle and Gateshead Waterworks Co (1877) 2 Ex D 441 …. 19.8

Attorney-General v Board of Water Supply and Sewerage (1916) 16 SR (NSW) 437 …. 3.26, 19.45 — v Brisbane City Council [1988] 1 Qd R 346 …. 3.26 — v Leeds Corp (1870) 5 Ch App 583 …. 3.27 — v PYA Quarries Ltd [1957] 2 QB 169 …. 3.24 — v Sawtell [1978] 2 NSWLR 200 …. 12.3 Attorney-General (British Columbia) v Attorney-General (Canada) [1914] AC 153 …. 3.6 Attorney-General (NSW) v Stocks & Holdings (Constructors) Pty Ltd (1970) 45 ALJR 9 …. 5.46 Attorney-General (Tas) v Cameron (2007) 152 LGERA 45; [2007] TASSC 22 …. 18.58, 22.32 Attrill v Richmond River Shire Council (1993) 79 LGERA 178 …. 3.40 Austral Fisheries Pty Ltd, Re v Minister for Primary Industries and Energy [1992] FCA 351 …. 2.58 Austral Tee and Stump Services Pty Ltd v Gould [2008] SASC 230 …. 13.12, 20.77, 20.81 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 …. 22.21, 22.73 Australian Catholic University v Minister for Planning and Infrastructure [2013] NSWLEC 174 …. 19.57 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 …. 1.19, 2.63, 5.8, 6.2, 19.2, 19.4, 19.6, 19.9, 19.15, 19.18, 19.28, 19.31, 19.36, 19.54 — v Environment Protection Appeal Board [1983] VR 385 …. 19.22 — v Forestry Commission (1988) 79 ALR 685 …. 22.60 — v Latrobe City Council (2004) 140 LGERA 100 …. 22.59 — v Minister for Planning [2004] VCAT 2029 …. 17.55 — v Minister for Resources (1989) 76 LGRA 200 …. 19.10, 19.31 — v South Australia (1990) 53 SASR 349 …. 19.14, 19.17, 19.18, 19.30 Australian Deer Association Inc v Attorney-General for the State of Victoria [2008] VSC 204 …. 14.75

Australian Federation of Consumer Organizations v Tobacco Institute (1991) 98 ALR 670 …. 21.38 Australian Fisheries Management Authority v Gilmore [2009] FCA 1369 …. 9.21, 18.47 — v Graham [2003] FCA 231 …. 3.11, 7.38, 18.45 — v PW Adams Pty Ltd (1995) 61 FCR 314 …. 7.26, 8.25 — v — [1995] FCA 1765 …. 18.46 — v Su (2009) 176 FCR 95 …. 20.76 Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86 …. 6.2, 22.61, 22.67 Australian Refined Alloys Pty Ltd and Minister for the Environment and Heritage, Re [2003] AATA 247 …. 16.21 Australian Retirement Homes Ltd v Maroondah City Council [2006] VCAT 476 …. 13.32 Australian Salmon case (Canada v Australia) ‘Australia — Measures Affecting Importation of Salmon’, Appellate Body Report, 20 October 1998 …. 4.38, 4.39 Australian Speleological Federation Inc v Minister for Environment & Natural Resources (1994) 84 LGERA 29 …. 22.18, 22.36, 22.40 Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd [2001] SASC 173 …. 16.17 Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 …. 2.41 — v — (No 2) [2005] FCA 1307 …. 2.41 — v — (No 3) [2005] FCA 1308 …. 2.41 Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33 …. 8.33, 21.34 — v — (No 2) [2011] NSWLEC 70 …. 21.34 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 …. 20.96, 20.106 — v — (2001) 113 LGERA 357 …. 20.95 Azriel v New South Wales Land and Housing Corporation [2006] NSWCA 372 …. 22.65

Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63 …. 19.58

B Baarmutha Residents Association Inc v Indigo Shire Council (2005) 142 LGERA 204 …. 22.36, 22.71 Baiada v Waste Recycling and Processing Service New South Wales (1999) 130 LGERA 52 …. 22.64 Bailey v Forestry Commission of New South Wales (1989) 67 LGRA 200 …. 7.14, 11.22, 11.23, 11.26, 11.27, 11.30, 11.88, 22.73, 22.75 Bakrnchev Enterprises Pty Ltd v Maroochy Shire Council [2007] QPEC 117 …. 8.38, 13.32 Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524 …. 3.6, 3.25 Ballina Shire Council v Freeden (2006) 147 LGERA 297 …. 18.15 Ballymont Pty Ltd v Ipswich City Council (2002) 124 LGERA 373 …. 21.23 Bamford v Turnley (1862) 3 B & S 66 …. 3.20, 3.21 Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 142 LGERA 1 …. 3.40, 3.43 — v Hanna [2014] NSWLEC 152 …. 20.92, 20.106, 20.107, 20.113 Bannister v Bowen (1985) 65 ACTR 3 …. 14.36 Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 77 FCR 503; 48 ALD 53 …. 7.26, 8.25, 18.45 Baranov v Lane Cove Council [2001] NSWLEC 292 …. 20.53 Barnes v Maroochy Shire Council [2001] QCA 273 …. 15.26 — v Southern Downs Regional Council (No 2) [2011] QPEC 119 …. 10.36 Barrington — Gloucester — Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197 …. 8.34, 8.53, 9.10, 17.56, 18.66, 22.56, 22.62 Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154 …. 7.18, 9.21, 22.66 Barton Securities Ltd v Warringah Council [2009] NSWLEC 179 …. 22.34 Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and

the Arts [2011] FCA 113 …. 8.39, 14.22, 22.54 — v — [2011] FCAFC 59 …. 2.39, 22.61, 22.68 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 …. 19.10 Bates v Southern Rural Water [2004] VCAT 2045 …. 18.28 Bathurst City Council v PWC Properties (1998) 100 LGERA 383 …. 7.36, 15.76 — v Saban (1985) 58 LGRA 165 …. 3.21 — v — (No 2) (1986) 58 LGRA 201 …. 3.24 Baulkham Hills Shire Council v Domachuk (1988) 66 LGRA 110 …. 3.24, 3.54 — v Hahn (2008) 160 LGERA 157; [2008] NSWLEC 184 …. 21.23 Bayside City Council v Telstra Corp Ltd; Moreland City v Optus Vision Pty Ltd; Warringah Council v Optus Vision Pty Ltd; Hurstville City Council v Telstra Corp Ltd (2004) 133 LGERA 65 …. 5.49 Beaudesert Shire Council Brecevic v Big Boulder Walls Pty Ltd [2003] QPEC 52 …. 20.121 Beaumaris Conservation Society Inc v Bayside City Council [2012] VCAT 1594 …. 13.27 Bechara v Plan Urban Services Pty Ltd (2006) 149 LGERA 41 …. 2.67, 7.10 Beckett v Lyons [1967] Ch 449 …. 3.6 Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 …. 11.88, 11.90 Belmorgan Property Development Pty Ltd v GPT RE Ltd (2007) 153 LGERA 450; [2007] NSWCA 171 …. 10.16, 22.65, 22.77 Belongil Progress Association Inc v Byron Shire Council (1999) 106 LGERA 202 …. 10.9, 22.43 Bentley v BGP Properties Pty Ltd (2005) 139 LGERA 449 …. 14.81, 20.62 — v — (2006) 145 LGERA 234 …. 20.105, 20.106, 20.107 — v Gordon [2005] NSWLEC 695 …. 14.81 — v Shire of Talbot [1990] ELR 005 …. 9.33 Bernstein v Skyviews and General Ltd [1977] EWHC QB 1 …. 3.2

Betland v Environment Protection Authority [2010] NSWLEC 183 …. 7.29, 20.23, 20.100 Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223 …. 10.70 BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 …. 8.25, 8.31, 8.66, 14.93, 14.98, 22.5, 22.59 BHP Coal Pty Ltd v Robertson (2005) 139 LGERA 77 …. 19.17 BHP Ltd v Blacktown City Council (1989) 130 LGERA 1 …. 10.4, 22.60 Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151 …. 2.26, 9.16, 22.18, 22.20 — v — (1996) 63 FCR 567; 135 ALR 128 …. 5.36, 22.20 Big Country Australia Pty Ltd and Shire of Serpentine-Jarrahdale, Re [2006] WASAT 10 …. 13.30 Biotech Dispute, USA v EC ‘European Communities — Measures Affecting the Approval and Marketing of Biotech Products’, Appeal Panel Report, 29 September 2006 …. 4.38 Birri Gubba v Queensland [2003] FCA 276 …. 12.71 Bisogni v Environment Protection Authority [2003] VCAT 362 …. 20.4 Black v Ku-ring-gai Council [2008] NSWLEC 1501 …. 13.45 Blackburn v Attorney-General [1971] 1 WLR 1037 …. 4.10 Blacktown City Council v Pace (2002) 121 LGERA 432 …. 20.49 — v Penatrators Pty Ltd [2013] NSWLEC 169 …. 21.15 Blair v Deakin (1882) 57 LJ 522 …. 3.27 Blue Mountains Conservation Society Inc v Delta Electricity [2009] NSWLEC 150 …. 21.37 — v — (No 2) [2009] NSWLEC 193 …. 21.37 — v — (No 3) [2011] NSWLEC 145 …. 15.36, 21.16, 21.17 — v Director General of National Parks and Wildlife (2) (2004) 133 LGERA 406 …. 2.65, 7.22, 8.25 Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (2008) 157 LGERA 428; [2008] FCA 399 …. 6.52, 6.60, 6.62, 8.35, 19.44, 22.61, 22.62

— v — [2008] FCA 8 …. 2.39, 6.9, 6.11, 19.44 — v Port of Melbourne Corporation [2005] VSC 305 …. 21.15 Bluhme, Re C-67-97 …. 8.74 BMG Resources Ltd v Beaconsfield Municipal Council [1988] Tas R 142 …. 5.46 Bobolas v Waverley Council [2012] NSWCA 126 …. 20.7 Bodney v Westralia Airports Corporation Pty Ltd (2000) 111 LGERA 268 …. 2.8 Boerkamp v The Honourable Matthew Guy [2014] VSC 167 …. 19.26 Bojanich and Western Australian Planning Commission [2006] WASAT 315 …. 17.57 Bon Accord Pty Ltd v Brisbane City Council [2008] QPEC 119 …. 11.42, 22.73 Bone v Mothershaw [2003] 2 Qd R 600 …. 2.22, 2.28, 13.3 Bonfoal Pty Ltd v Botany Bay City Council (1999) 105 LGERA 190 …. 11.88 Bonnici v Ku-ring-gai Municipal Council (2001) 121 LGERA 29 …. 3.27 Bonser v La Macchia (1969) 122 CLR 177 …. 5.29, 5.31 Booth v Bosworth [2000] FCA 1878 …. 19.44, 21.11 — v — (2001) 114 FCR 39; [2001] FCA 1453 …. 6.15, 7.11, 12.14, 18.5, 19.44, 21.7 — v Frippery Pty Ltd [2006] QCA 74 …. 20.83 — v — [2007] QPEC 99 …. 14.46, 14.50, 20.84 — v — [2008] QPEC 122 …. 20.121 — v Yardley [2006] QPEC 116 …. 14.50, 21.10, 21.15 — v — [2006] QPEC 119 …. 14.46 — v — (2008) 160 LGERA 352 …. 20.121 Boral Resources (Country) Pty Ltd v Clarence Valley Council [2009] NSWLEC 81 …. 11.19 Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157 …. 22.4

— v Minister for Planning (2006) 148 LGERA 251 …. 11.90 — v Minister of State for Transport and Regional Development (1996) 90 LGERA 81 …. 21.9 — v Pet Carriers International Pty Ltd [2013] NSWLEC 147 …. 22.39 — v Premier Customs Services Pty Ltd [2009] NSWCA 226 …. 9.1, 22.64 — v Ralansaab Pty Ltd [2010] NSWLEC 225 …. 10.16, 20.59 — v Saab Corp Pty Ltd [2011] NSWCA 308 …. 10.16 Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453; 79 LGERA 241; 109 ALR 321; 66 ALJR 821 …. 5.46, 5.51, 6.24, 11.22, 11.31 Bow v Blacktown City Council [2008] NSWLEC 21 …. 14.85 Bowden v Break O’Day Council (2008) 162 LGERA 49 …. 10.2, 21.4, 22.55 Boyce v Paddington Borough Council [1903] 1 Ch 109 …. 19.9, 19.10, 19.44 Bradford v Robinson Rentals [1967] 1 All ER 267 …. 3.29 Bradto Pty Ltd v Victoria; Tymbook Pty Ltd v Victoria [2006] VSCA 89 …. 21.9 Brambles Australia Ltd v Environment Protection Authority [1999] VCAT 2176 …. 19.22, 19.27 Brazil — Retreaded Tyres, Brazil — Measures Affecting Imports of Retreaded Tyres, WTO Doc WT/DS332/AB/R, AB-2007-4 …. 4.36 Breen v Williams [1996] HCA 57 …. 2.61 Brennan-Kuss and others v Dietman [2014] SASC 28 …. 14.53 Bridgetown Greenbushes-Friends of the Forest Inc v Department of Conservation & Land Management (1997) 18 WAR 102; 93 LGERA 436 …. 8.64, 21.9 — v Executive Director of the Department of Conservation & Land Management (1997) 94 LGERA 380 …. 8.56, 8.68, 9.21, 12.67, 21.18, 22.34, 22.61 Brighton Council v Compost Tasmania Pty Ltd (2000) 109 LGERA 190 …. 22.39 Brinkworth v Dendy [2007] SASC 120 …. 13.12 — v Fischer [2008] SAERDC 33 …. 20.106

Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 …. 5.46 Broad Henry v Director-General of the Department of Environment and Conservation (2007) 159 LGERA 172; [2007] NSWLEC 722 …. 7.27, 22.34 Broadwater Action Group Inc v Richmond Valley Council (No 2) (2003) 129 LGERA 401 …. 22.9 Brodie v Singleton [2001] HCA 29 …. 3.40 Bromley London Borough Council v Greater London Council [1983] AC 768 …. 22.71 Bropho v Western Australia [1990] HCA 24 …. 2.7 Brown v Environment Protection Authority & North Broken Hill Ltd (No 2) (1992) 78 LGERA 119 …. 11.23, 15.33, 15.56, 15.71, 21.2, 21.4, 21.40 — v Forestry Tasmania (No 4) (2006) 152 LGERA 146; [2006] FCA 1729 …. 6.7, 6.17, 6.38, 9.10, 18.74 — v Gosford City Council [2006] NSWLEC 56 …. 19.54 — v Mornington Peninsula Shire Council (2004) 140 LGERA 11 …. 21.23 — v Randwick City Council [2011] NSWLEC 172 …. 22.27 Brunsdon v The Council of the City of Wagga Wagga [2003] NSWLEC 168 …. 8.67 Brunswick Valley Sports Association Inc v Byron Shire Council [2006] NSWLEC 71 …. 21.13 BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 …. 7.11, 8.66, 11.25, 11.35 — v — [2007] NSWLEC 229 …. 13.46 BTG Planning v Blacktown City Council [2008] NSWLEC 1500 …. 13.46 Budd v Northern Midlands Council [2008] TASSC 62 …. 15.28 Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 …. 21.25 Building Recyclers Investments Pty Ltd v Marrickville Council (2003) 131 LGERA 413 …. 11.19 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Ltd [2013] NSWLEC 48 …. 2.34, 8.29, 8.82, 11.101, 11.105, 13.36, 13.61, 17.56, 18.59

Bungendore Residents Group Inc v Palerang Council (No 3) [2007] NSWLEC 251 …. 22.47 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42 …. 3.29, 20.52 Burns v Queensland and Croton [2006] QCA 235 …. 13.3 Burtenshaw v Dunn [2010] QLC 70 …. 8.67 Burwood Council v Doueihi [2013] NSWLEC 196 …. 20.107 Butler Excavations Pty Ltd v Ballarat City Council [2010] VCAT 57 …. 12.72 Buttsworth v Director-General of the Department of Land and Water Conservation (2003) 127 LGERA 170 …. 20.5 Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111 …. 6.69, 6.70, 8.66, 13.35, 13.46, 22.56, 22.79 — v — (No 2) [2012] FCA 403 …. 6.16, 6.46, 6.67, 6.69, 9.10, 15.131 Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1; 96 LGERA 1 …. 19.30, 19.36 Byron Shire Businesses for the Future Inc v Byron Shire Council (1994) 83 LGERA 59 …. 21.41 — v — (1994) 84 LGERA 434; [1994] NSWLEC 159 …. 11.14, 11.30, 14.95, 22.75 Byron Shire Council v Fletcher (2005) 143 LGERA 155 …. 20.103 — v — [2008] NSWLEC 296 …. 13.32 — v Vaughan [2009] NSWLEC 88 …. 3.45, 17.49, 17.51 Byron Ventilink Pty Ltd v Byron Shire Council (2005) 142 LGERA 215 …. 2.57, 8.49

C Cabbabe v Baw Baw Shire Council [2001] VCAT 747 …. 8.67 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 …. 22.46 Caloundra City Council v Pelican Links Pty Ltd [2004] QPEC 52 …. 13.24 Caltex Australia Petroleum Pty Ltd v Charben Haulage Pty Ltd [2005] FCAFC 271 …. 16.25, 16.26

Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118 …. 20.66, 20.67, 20.69 Cambridge Water Co v Eastern Counties Leather Co [1994] 1 All ER 53 …. 3.5 Camden Council v Runko (2006) 147 LGERA 214 …. 20.112 Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 …. 20.23, 20.107 — v Lake Macquarie City Council (2000) 107 LGERA 308 …. 13.34 — v Nambucca Shire Council (1997) 95 LGERA 268 …. 10.24 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; 82 LGERA 21 …. 6.73, 20.107, 20.113, 20.114 Canada Bay City Council v Bird (2003) 124 LGERA 303 …. 13.34 Canal Rocks Pty Ltd and Shire of Busselton, Re [2006] WASAT 211 …. 12.72 Candy v Christensen [2007] QCA 114 …. 14.46 — v Thompson [2005] QCA 382 …. 14.46 Cantarella Bros Pty Ltd v City of Ryde Council (2003) 131 LGERA 190 …. 15.91, 20.7 Canterbury City Council v Saad (2000) 112 LGERA 107 …. 20.39 — v — (2001) 112 LGERA 429 …. 13.33 Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317 …. 22.44 Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294 …. 10.16, 19.39, 22.36 Cape York Land Council Aboriginal Corporation v Boyland [2000] QCA 202 …. 7.21 Capital Airports Group Pty Ltd v Director General, New South Wales Department of Planning (No 2) [2011] NSWLEC 83 …. 11.90, 22.66 Carbon v Palos Verdes Estates Pty Ltd [1990] ELR 179 …. 15.21 Cardoso v Greater Bendigo City Council (Red Dot) [2006] VCAT 2043 …. 19.23, 19.27 Carmody v Brancourts Nominees Pty Ltd (2002) 124 LGERA 136 …. 20.65

Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2009] NSWLEC 165 …. 21.37 — v — [2010] NSWCA 353 …. 21.30 — v — (No 2) [2010] NSWLEC 1 …. 22.49 — v — (No 3) [2010] NSWLEC 59 …. 21.30, 21.31, 21.33 — v — (No 4) [2010] NSWLEC 91 …. 22.24 Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 117 …. 21.9 — v — [2002] NSWLEC 216 …. 21.9 — v Stockland Development Pty Ltd (No 4) (2004) 135 LGERA 68 …. 10.9, 22.34 Carrington v Minister for Planning (1986) 26 APA 372 …. 11.58 Carstens v Pittwater Council (1999) 111 LGERA 1; [1999] NSWLEC 249 …. 7.28, 8.31, 11.24, 11.25, 14.84, 14.94, 22.59 Carter v Wall [2002] NSWLEC 124 …. 12.76 Caruso v Sydney Water Corporation [2008] NSWLEC 320 …. 13.46 Casa v City of Ryde Council [2009] NSWLEC 212 …. 22.75 Castle v Southern Rural Water [2008] VCAT 2440 …. 8.67 Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164 …. 22.40 Castlemaine Tooheys Ltd v South Australia (1986) 67 ALR 553 …. 21.7, 21.10 — Ltd v — (1990) 169 CLR 436 …. 5.44, 5.45 Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65 …. 10.27, 22.39 Caversham Property Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 173 …. 13.39 Celledoni v Johnstone Shire Council [2008] QPEC 104 …. 11.42 Central Queensland Speleological Society Inc v Central Queensland Cement Pty Ltd (No 1) [1989] 2 Qd R 512 …. 14.47, 19.14, 19.30, 21.40 Central West Environment Council Inc v Orange City Council (2003) 128 LGERA 169 …. 11.26, 14.94, 22.61, 22.64 Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 ….

22.65 Cessnock City Council v Quintaz Pty Ltd; Cessnock City Council v McCudden [2010] NSWLEC 3 …. 20.96, 20.113 Challen v McLeod Country Golf Club [2004] QCA 358 …. 3.19 Challenger Listed Investments Ltd v Valuer General (No 2) [2015] NSWLEC 60 …. 16.26 Chambers v Maclean Shire Council (2003) 126 LGERA 7 …. 22.48 Chapman v Hearse (1961) 106 CLR 112 …. 3.29 Chappel v Hart (1998) 195 CLR 232 …. 3.36 Charalambous v Ku-ring-gai Council (2007) 155 LGERA 352 …. 10.9, 10.25, 22.45 Charles and Howard Pty Ltd v Redland Shire Council (2007) 159 LGERA 349 …. 17.57 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 …. 22.46 Cheltenham Park Residents Association Inc v City of Charles Sturt [2011] SAERDC 33 …. 13.33 — v Minister for Urban Development and Planning [2009] SASC 303 …. 22.77 — v — [2010] SASC 93 …. 9.58, 19.33, 22.27 Cherry Tree Wind Farm Pty Ltd v Mitchell Shire Council (Red Dot) [2013] VCAT 1939 …. 17.57 Chesol Pty Ltd v Logan City Council [2007] QPEC 1 …. 8.37 Chief Executive of the Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 …. 11.90, 20.39, 20.43, 20.56, 20.92, 20.104 — v Bombala Investments Pty Ltd [2013] NSWLEC 185 …. 13.21, 20.93, 20.94, 20.104, 20.105, 20.106, 20.110 — v Fish (No 2) [2014] NSWLEC 67 …. 20.123 — v Humphries [2013] NSWLEC 213 …. 17.58 — v Kyluk Pty Ltd (No 3) [2012] NSWLEC 56 …. 8.29, 14.81 — v Lani [2012] NSWLEC 115 …. 20.113

Chief Executive of the Office of Environment and Heritage Department of Premier and Cabinet v Powell [2012] NSWLEC 129 …. 13.17 Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 …. 18.62 Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195 …. 21.22 — v — (No 2) [2011] WASC 315 …. 13.30, 20.122 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 …. 20.16 Christian Outreach Centre v Toowoomba Regional Council and HSBG Pty Ltd [2012] QPEC 29 …. 22.75 Ciccarello v City of Charles Sturt [2010] SAERDC 49 …. 10.70, 22.7 Circelli v Agnidla Pty Ltd [2008] SAERDC 34 …. 20.107, 20.112 — v Mulhern’s Waste Oil Removal [2009] SAERDC 17 …. 20.113 — v Southcorp Wines Pty Ltd [2000] SAERDC 80 …. 20.24 Citizens Airport Environment Association Inc v Maritime Services Board (1993) 114 ALR 473; 79 LGERA 254 …. 2.39, 6.24, 11.31, 21.16, 21.26, 21.34, 21.35, 21.41 City of Adelaide v Environment Protection Authority [2005] SASC 221 …. 16.1 City of Altona v Environment Protection Authority (1985) 16 APA 470 …. 19.22 City of Armadale v Merrick [2014] WASCA 125 …. 7.9, 16.18 City of Botany Bay v New South Wales Land and Housing Corporation [2010] NSWLEC 160 …. 11.22, 11.87 City of Botany Bay Council v Minister for Transport and Regional Development (1999) 106 LGERA 287 …. 22.73 City of Burnside v Prestige Wholesale Pty Ltd [2005] SASC 195 …. 13.33 City of Footscray v Maize Products Pty Ltd (1943) 67 CLR 301 …. 3.27 City of Joondalup, Re; Ex parte Mullaloo Progress Association Inc (2003) 132 LGERA 243 …. 22.64

City of Marion v Paior [2013] SASCFC 77 …. 2.65 City of Mitcham v Ansaar [2006] SASC 78 …. 13.32 — v MOL Pty Ltd (2003) 127 LGERA 145 …. 22.67 City of Norwood, Payneham and St Peters v ETSA Utilities [2008] SASC 114 …. 13.10 City of West Torrens v Maria Kyros [2009] SAERDC 13 …. 20.112 Clarence City Council v South Hobart Investment Pty Ltd (2007) 152 LGERA 24 …. 22.40 Clark v Cook Shire Council [2007] QCA 139 …. 22.73 — v Ryan (1960) 103 CLR 486 …. 8.58 Clark and Australian Fisheries Management Authority, Re [2006] AATA 597 …. 18.45 Cleveland Power Pty Ltd v Redlands City Council [2013] QPEC 17 …. 21.23, 21.33 Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 …. 22.57 Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 114 …. 22.77 — v — (1999) 106 LGERA 243 …. 10.27 Coast Protection Board v Carramatta Holdings Pty Ltd [2015] SASCFC 64 …. 20.13 Coastal Estates Pty Ltd v Bass Coast Shire Council [2010] VCAT 1807 …. 22.42 Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136 …. 7.14, 7.33, 8.37, 11.29, 11.68, 11.70, 15.70, 21.20 Coco v R (1994) 179 CLR 427 …. 2.28 Coe v Gordon [1983] 1 NSWLR 419 …. 19.8 Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11 …. 11.35, 22.57 — v Minister for Planning and Infrastructure [2012] NSWLEC 4 …. 22.56 Cohen v City of Perth (2000) 112 LGERA 234; [2000] WASC 306 …. 3.37,

21.6 Cole v Whitfield (1988) 78 ALR 42 …. 5.42, 5.45 Coleman v Gray (1994) 133 ALR 328 …. 9.16 Comer v Murphy Oil No 1: 05-CV-436 (SD Miss 18 April 2006) …. 17.52 Commercial Radio Coffs Harbour v Fuller (1986) 60 LGRA 68 …. 5.50 Commission v Greece C-342/07 …. 4.46 — v Italian Republic C-173/05 …. 8.74 Commissioners of Soil and Land Conservation v Nabarlek Nominees Pty Ltd (2002) 120 LGERA 43 …. 20.6 Commonwealth v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25 …. 2.11 — v Bogle (1953) 89 CLR 229 …. 5.53 — v Cigamatic Pty Ltd (1962) 108 CLR 372 …. 5.53 — v Randwick City Council [2001] NSWLEC 79 …. 14.84 — v Western Australia (1999) 196 CLR 392 …. 5.46 — v Yarmirr [2001] HCA 56; 184 AJR 113 …. 2.11, 2.12 Commonwealth of Australia v Tasmania (1983) 158 CLR 1; 46 ALR 625; [1983] HCA 21 …. 1.19, 2.38, 4.44, 5.4, 5.11, 5.12, 5.13, 5.15, 5.16, 5.17, 5.28, 5.34, 5.36, 5.49, 6.2, 9.10, 22.53 — v WMC Resources Ltd (1998) 194 CLR 1; 152 ALR 1; [1998] HCA 8 …. 2.19, 2.30, 3.3, 4.25, 5.32, 5.33, 5.34 Community Association DP 270253 v Woollahra Municipal Council [2015] NSWCA 80 …. 22.10 — v — (No 2) [2014] NSWLEC 8 …. 22.10 Concerned Citizens of Canberra v Chief Planning Executive (Planning and Land Authority) [2014] ACTSC 165 …. 19.20 Concord, North Sydney, Woollahra & Manly Councils v Optus Networks Pty Ltd (1996) 90 LGERA 232 …. 22.60 Connecticut v American Electric Power 406 F Supp 2d 265 (SDNY) 2005 …. 3.24, 17.52 Connell v Santos NSW Pty Ltd [2014] NSWLEC 1 …. 18.65, 20.104, 20.107,

20.113 Conservation Council of South Australia v Development Assessment Committee and Tuna Boat Owners Association (No 2) [1999] SAERDC 86 …. 8.65, 8.70 — v — (No 3) [2000] SAERDC 67 …. 4.39, 8.65 Cook v Pasminco Ltd (2000) 111 LGERA 406 …. 19.51 Cooney v Ku-ring-gai Municipal Council (1963) 114 CLR 582 …. 19.45 Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 …. 13.32 — v ICI Australia Operations Pty Ltd (1987) 64 LGRA 58 …. 20.40, 20.43, 20.78 Corfu Channel Case (United Kingdom v Albania) (1949) ICJ Reports 4 …. 4.15 Corkill v Forestry Commission of New South Wales (Unreported, LEC (NSW), No 40208, 29 October 1990) …. 21.13 — v — (1990) 71 LGRA 116 …. 21.9 — v — (No 2) (1991) 73 LGRA 126 …. 14.38 Cornell v Town of East Fremantle (2003) 131 LGERA 20 …. 2.24 Corowa v Geographe Point Pty Ltd (2007) 154 LGERA 117; [2007] NSWLEC 121 …. 10.20, 11.25, 11.26, 11.35, 14.94, 14.98, 22.27, 22.28, 22.47, 22.78 — v Queensland (2006) 149 LGERA 1 …. 5.48, 5.51 Corporate Affairs Commission v ASC Timber Pty Ltd [1989] 18 NSWLR 577 …. 3.9 Corporation of the City of Adelaide v BFR Pty Ltd [2014] SAERDC 37 …. 10.37 — v City of Salisbury (1998) 100 LGERA 160 …. 22.32 Corporation of the City of Enfield v Development Assessment Commission (2000) 106 LGERA 419 …. 7.36, 10.9, 15.76, 22.46, 22.48 Council of Camden v Runko [2006] NSWLEC 486 …. 20.116 — v Tax (2004) 137 LGERA 368 …. 13.33, 20.107 Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 …. 22.71

Council of the City of Greater Taree v Wells [2010] NSWCA 147 …. 3.37 Council of the City of Shoalhaven v Wilson [2015] NSWLEC 93 …. 13.34 Council of the City of Sydney v Base Backpackers Pty Ltd [2015] NSWLEC 63 …. 22.10 Country Energy v Williams (2005) 141 LGERA 426; [2005] NSWCA 318 …. 8.28, 22.34, 22.79 CPC (UK) Ltd v National Rivers Authority [1995] Env LR 131 …. 20.32 CPT Manager Ltd v Central Highlands Regional Council [2010] QCA 183 …. 22.47 Craig v South Australia (1995) 184 CLR 163 …. 22.78 Cranbrook School v Woollahra Council (2006) 146 LGERA 313; [2006] NSWCA 155 …. 7.14, 7.15 Cranky Rock Road Action Group Inc v Cowra Shire Council (2005) 143 LGERA 356 …. 10.14 — v — (2006) 150 LGERA 81; [2006] NSWCA 339 …. 10.14, 10.20, 11.38, 14.94, 22.47, 22.78 Crowther v Brisbane City Council [2010] QCA 348 …. 19.41 — v — [2002] QPEC 79 …. 15.29 — v — [2008] QPEC 79 …. 15.29 — v — [2009] QPEC 31 …. 15.29, 20.121 — v Queensland (2006) 148 LGERA 220; [2006] QCA 308 …. 20.121, 21.6, 21.16 CSA Architects Pty Limited v Woollahra Council [2009] NSWLEC 1054 …. 8.52 CSR Ltd v Caboolture Shire Council [2001] QPELR 398 …. 8.71, 8.74 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2010] NSWCA 214 …. 7.51 — v — [2011] HCA 27 …. 3.9, 3.13 Currareva Partnership v Welford [2000] QSC 098 …. 2.58 Currey v Hargraves [2007] NSWLEC 471 …. 22.71 — v Sutherland Shire Council (1998) 100 LGERA 365 …. 22.48, 22.64

D Dal Piva v Jakobovic [2002] SASC 209 …. 13.12, 20.96 — v Maynard (2000) 112 LGERA 165 …. 13.12, 20.96 Daletta Pty Ltd v District Council of the Copper Coast [2007] SAERDC 2 …. 18.57 Dalimen Pty Ltd v Director-General, Department of Infrastructure, Planning and Natural Resources [2005] NSWLEC 204 …. 13.21 D’Anastasi v Environment Protection Authority [2011] NSWCA 1 …. 20.29 Danube Dam case (1997) ICJ Reports 7 …. 4.16, 4.19, 4.21 Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 …. 11.19 Darlinghurst Residents’ Association v Elarosa Investments Pty Ltd (1992) 75 LGRA 214 …. 21.26, 21.33, 21.41 Dates v Minister for Environment, Heritage and the Arts (No 2) [2010] FCA 256 …. 22.72 David Kettle Consulting Pty Ltd v Gosford City Council [2008] NSWLEC 1385 …. 8.53 Davis v Commonwealth (1988) 63 ALJR 35 …. 5.27 — v Gosford City Council [2014] NSWCA 343 …. 10.15, 10.19 Davis and Bird v City of Mitcham [2010] SAERDC 48 …. 13.8 Day v Pinglen (1981) 148 CLR 289; 34 ALR 545 …. 3.21, 19.10, 19.11 DC Consolidated Investments Pty Ltd v Maroondah City Council [2011] VSC 634 …. 13.27 De Brett Investments Pty Ltd and Australian Fisheries Management Authority [2004] AATA 704 …. 8.57, 18.46 De Lacey v Kagara Pty Ltd (2009) 30 QLCR 57; [2009] QLC 77 …. 8.21, 8.65, 8.74 De Tournouer v Department of Natural Resources and Water [2009] QLAC 0006 …. 22.7 DeAngelis v Pepping [2014] NSWLEC 108 …. 2.57, 22.40, 22.78 Deepcliffe Pty Ltd v Council of the City of Gold Coast [2001] QCA 342 ….

3.25 DeLa Harpe v East Gippsland Shire Council (2005) 144 LGERA 132 …. 13.27 Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263 …. 21.35 — v — [2010] NSWCA 264 …. 21.37 Denison v Townsville City Council [2006] QPEC 118 …. 8.68 Dennis v Ministry of Defence [2003] Env LR 34 …. 2.46 Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15 …. 13.16, 13.19 — v Sommerville; Department of Environment and Climate Change v Ianna [2009] NSWLEC 194 …. 14.81 Department of Planning and Infrastructure v Aston Coal 2 Pty Ltd [2013] NSWLEC 188 …. 2.39 Development Assessment Commission v 3GIS Pty Ltd [2007] 154 LGERA 72 …. 5.50 — v A & V Contractors Pty Ltd [2011] SASCFC 21 …. 8.38 DG Robertson Holdings Pty Ltd v Douglas Shire Council [2000] QPELR 428 …. 10.36 Dietman v Feast [2015] SASC 148 …. 14.53 — v Karpany [2012] SASCFC 53 …. 2.11, 2.13 Dighton v South Australia [2000] SASC 194 …. 18.49 Dilatte v MacTiernan [2002] WASCA 100 …. 22.32 Director of Public Prosecutions v SA Water Corporation [2004] SAERDC 36 …. 15.29 — v Transadelaide [2004] SAERDC 92 …. 15.27, 20.24, 20.96 Director-General, Dept of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182 …. 13.17 — v Hudson [2009] NSWLEC 4 …. 13.17, 20.29, 20.114 — v — (No 2) [2015] NSWLEC 110 …. 13.17, 20.92 — v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232 …. 13.19, 20.55, 20.56, 20.57

— v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 …. 8.29, 13.17, 20.110 — v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73 …. 13.16, 13.17 — v — (No 3) [2010] NSWLEC 135 …. 20.31 — v — (No 4) [2011] NSWLEC 119 …. 13.17, 20.106 — v Wilton [2008] NSWLEC 297 …. 18.76, 20.114 Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102 …. 7.29, 20.108 — v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102 …. 13.17 — v Linklater [2011] NSWLEC 30 …. 13.17 — v Venn [2011] NSWLEC 118 …. 7.27, 8.29, 14.81, 14.83, 21.16, 21.17 — v Vin Heffernan Pty Ltd [2010] NSWLEC 200 …. 13.17 — v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 …. 13.16, 13.19 Director-General, Department of Industry and Investment NSW v Mato Investments Pty Ltd [2014] NSWCCA 132 …. 7.36, 22.43, 22.44 Director-General, Department of Land and Water Conservation v Bailey (2003) 128 LGERA 1 …. 11.18, 13.20 — v — (2003) 136 LGERA 242 …. 7.14, 13.19, 20.31 — v Jackson (2003) 125 LGERA 304 …. 13.20 — v Nunkeri Pastoral Pty Ltd (1998) 98 LGERA 139 …. 13.16 — v Orlando Farms Pty Ltd (1998) 99 LGERA 101 …. 13.16, 20.107 — v Pye [1998] NSWLEC 292; LEC 50128-9 of 1997 …. 13.16, 20.31 — v Rial (1998) 99 LGERA 130 …. 13.16, 20.96, 20.107 Director-General, Department of Planning v Epacris Pty Ltd (2006) 147 LGERA 372; [2006] NSWLEC 306 …. 1.24, 20.28, 22.11 Director-General, New South Wales Department of Industry and Investment v Mato Investments Pty Ltd (No 4) [2011] NSWLEC 227 …. 14.81 Director-General of National Parks and Wildlife Service v Barry John Mobbs [1996] NSWLEC 225 …. 14.38 Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 …. 14.81, 20.114

Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No 2) [2011] NSWLEC 149 …. 20.114 Director-General of the Department of Land and Water Conservation v Greentree [2002] NSWLEC 102 …. 20.64 — v Greentree (2003) 131 LGERA 234 …. 20.39, 20.51, 20.62 — v Prime Grain Pty Ltd (2002) 124 LGERA 233 …. 20.5 District Council of Kingscote v Kangaroo Island Eco Action Incorporated (1996) 67 SASR 410 …. 7.17 Dixon and Australian Fisheries Management Authority and Executive Director of Fisheries Western Australia and Northern Territory of Australia [2000] AATA 442 …. 8.74, 18.46 DLW GmbH v Winnington Networks Ltd [2012] EWHC 10 …. 5.36 Dodd & Dodd Group Pty Ltd v Minister for Sustainability Environment, Water, Population and Communities [2010] AATA 957 …. 16.21 Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53 …. 22.75 Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 …. 3.20, 3.21 Donnelly v Capricornia Prospecting Pty Ltd (1999) 102 LGERA 310 …. 21.41 — v Solomon Islands Mining NL (2002) 121 LGERA 264 …. 14.81, 21.5 Donohue v Australian Fisheries Management Authority [2000] FCA 901 …. 2.58 Dorrestijn v South Australian Planning Commission (1984) 56 ALR 295; 59 ALJR 105 …. 9.53, 13.9 Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 …. 19.55 Drake-Brockman v Minister for Planning (2007) 158 LGERA 349; [2007] NSWLEC 490 …. 8.35, 8.52, 10.61, 11.87, 17.55, 22.1, 22.47, 22.62 — v — (No 2) [2007] NSWLEC 718 …. 21.29 Draycott Pty Ltd v Minister for Environment and Conservation [2007] SASC 463 …. 18.28 Drewitt v Resource Management and Planning Appeal Tribunal (No 2) (2008) 161 LGERA 321 …. 19.20 Dridan v Kent [2004] SASC 100 …. 12.76, 13.12

Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 …. 11.30, 14.95 — v Roads and Traffic Authority of New South Wales (1989) 67 LGRA 155 …. 11.22, 11.25, 11.29 Dual Gas Pty Ltd v Environment Protection Authority [2012] VCAT 308 …. 8.68, 17.55, 19.10, 19.22, 19.24, 19.33 Dubler Group Pty Ltd v Ku-ring-gai Municipal Council (2004) 133 LGERA 438 …. 2.70, 22.74 Dubois v Rockhampton Regional Council [2014] QCA 215 …. 20.123 Dunstan v R [1948] VLR 269 …. 3.21 Durable Building Products Pty Ltd v Sutherland Shire Council (2000) 111 LGERA 106 …. 5.46, 5.51 Durham Holdings Pty Ltd v New South Wales [2001] HCA 7 …. 2.28

E East Melbourne Group Inc v Minister for Planning [2005] VSC 242 …. 22.17, 22.73 — v — [2008] VSCA 217 …. 8.38, 22.22, 22.58, 22.74 Eastern Waste Management Incorporated v City of Tea Tree Gully (1996) 92 LGERA 1 …. 15.76 Eastlakes Golf Club v Botany Bay City Council [2006] NSWLEC 343 …. 11.28 Ebner v Official Trustee (2000) 176 ALR 644 …. 22.40 Eclipse Resources Pty Ltd v Department of Environment and Conservation [2010] WASC 360 …. 15.76 Eco-action Kangaroo Island Inc v Kangaroo Island Council [2012] SAERDC 14 …. 10.38 Edwards, Re; Ex parte Pearls Pty Ltd [2003] WASCA 148 …. 21.20, 22.74 Edwards v Sutherland Shire Council [2006] NSWLEC 128 …. 16.36 Egan v Glenelg Shire Council (Red Dot) [2005] VCAT 2700 …. 21.16 Electricity Commission of New South Wales v Environment Protection Authority (1992) 28 NSWLR 494 …. 7.9, 15.20, 15.21, 15.25, 20.81 Electro Optic Systems Pty Ltd v New South Wales [2014] ACTCA 45 …. 3.37,

3.43 Elliott v Brisbane City Council (2002) QPELR 425 …. 8.56 Ellison v Warringah Shire Council (1985) 55 LGRA 1 …. 21.12 Ellul v Shire of Melton (1989) 41 APA 193 …. 19.23 Embrey v Owen (1851) 6 Exch 353 …. 3.6 Enfield City Corporation v Development Assessment Commission (1997) 69 SASR 99 …. 10.38 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365 …. 21.23, 21.26, 21.33, 21.34 Entrad v Maroochy Shire Council (1979) 39 LGRA 200 …. 7.19 Environment Agency (Formerly National Rivers Authority) v Empress Car Company (Abertillery) Ltd [1999] 2 AC 22 …. 20.34 Environment Centre Northern Territory (NT) Inc v Minister for Land Resource Management [2015] NTSC 30 …. 22.3 Environment East Gippsland Inc v VicForests [2009] VSC 386 …. 8.45, 8.49 — v — [2010] VSC 335 …. 2.56, 8.45, 8.49, 8.66, 8.67, 8.71, 9.21, 9.26, 14.76, 18.69, 19.22, 19.33 Environment Protection Authority v Aaron Plant Hire and Earthmoving Pty Ltd (2000) 108 LGERA 300 …. 20.93 — v Aircare Narrabri Pty Ltd (1997) 99 LGERA 1 …. 20.30, 20.45 — v Alcobell Pty Ltd, Environment Protection Authority [2015] NSWLEC 123 …. 20.96 — v Ampol Ltd (1993) 81 LGERA 433 …. 20.47, 20.48 — v — (1994) 82 LGERA 247 …. 15.36, 20.48 — v — (1995) 85 LGERA 443 …. 20.93 — v — [1995] NSWLEC 16 …. 20.72 — v Anning (1998) 100 LGERA 354 …. 20.45, 20.47 — v — [1998] NSWLEC 135 …. 16.16 — v Arenco Pty Ltd [2006] NSWLEC 244 …. 20.116 — v Ashmore [2014] NSWLEC 136 …. 16.18, 20.112

— v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502 …. 20.81 — v — (1992) 76 LGRA 67 …. 20.93 — v — (No 2) (1993) 78 LGERA 373 …. 20.33, 20.39, 20.40, 20.43, 20.71 — v Australian Pacific Oil Company Pty Ltd [2003] NSWLEC 279 …. 20.62 — v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739 …. 16.18 — v Ballina Shire Council (2006) 148 LGERA 278 …. 2.52, 7.30, 7.37, 20.101, 20.102, 20.105, 20.106 — v Barlow (unreported, LEC (NSW), 23 April 1993) …. 20.30 — v Barnes [2006] NSWCCA 246 …. 20.107 — v BHP Steel (AIS) Pty Ltd (1996) 89 LGERA 358 …. 20.95 — v — (2004) 132 LGERA 213; [2004] NSWLEC 37 …. 15.45, 20.109 — v Big Island Mining Pty Ltd [2014] NSWLEC 131 …. 15.102 — v BlueScope Steel (AIS) Pty Ltd [2004] NSWLEC 400 …. 20.102 — v BMG Environmental Group Pty Ltd [2012] NSWLEC 69 …. 20.107 — v Boral Resources (NSW) Pty Ltd (2002) 123 LGERA 279 …. 20.93 — v Brazel [2002] NSWLEC 7 …. 20.77 — v — (No 2) [2002] NSWLEC 26 …. 15.25 — v Brir Pty Ltd (1995) 85 LGERA 450 …. 20.93 — v Broken Hill Pty Ltd (unreported, LEC (NSW), 15 April 1994) …. 20.75 — v Brown and Hatton Rural Pty Ltd (1992) 77 LGRA 383 …. 20.30, 20.81 — v Bulga Coal Management Pty Ltd [2014] NSWLEC 5 …. 15.37 — v — (No 2) [2014] NSWLEC 70 …. 20.124 — v Byron Shire Council [2002] NSWLEC 128 …. 20.116 — v — [2003] NSWLEC 207 …. 20.116 — v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; 82 LGERA 51 …. 15.84, 20.66 — v Capdate Pty Ltd (1993) 78 LGERA 349 …. 20.93 — v Centennial Newstan Pty Ltd [2010] NSWLEC 211 …. 20.116 — v Chillana Pty Ltd [2010] NSWLEC 255 …. 20.116

— v Cleary Bros (Bombo) Pty Ltd (1996) 92 LGERA 101 …. 15.76 — v Coggins (2003) 126 LGERA 219 …. 20.116 — v Collex Pty Ltd (2001) 115 LGERA 337 …. 2.52, 20.39, 20.102 — v Condon [2013] NSWSC 777 …. 22.51 — v Dubbo City Council (1994) 82 LGERA 361 …. 20.34 — v Ecolab (2002) 122 LGERA 269 …. 20.107 — v Fernando (2003) 129 LGERA 416 …. 20.61 — v Fletcher (2001) 114 LGERA 187 …. 20.80 — v Forestry Commission of New South Wales [2013] NSWLEC 101 …. 8.52, 8.53 — v Foxman Environmental Development Services [2015] NSWLEC 105 …. 16.17, 16.18, 20.49, 20.56 — v Fulton Hogan Pty Ltd (2008) 163 LGERA 345 …. 20.110 — v Gardner (unreported, LEC (NSW), Lloyd J, 14 August and 7 November 1997) …. 20.98 — v — [1997] NSWLEC 212 …. 20.107 — v Genkem Pty Ltd (1993) 79 LGERA 47 …. 20.33, 20.75 — v Gosford City Council (1997) 95 LGERA 338 …. 20.93 — v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289 …. 20.77, 20.80, 20.81 — v — [2005] NSWLEC 206 …. 20.116 — v Graham [2003] NSWLEC 408 …. 20.6 — v Great Southern Energy (1999) 110 LGERA 254 …. 20.93, 20.107 — v Hanna [2010] NSWLEC 98 …. 20.107 — v — [2013] NSWLEC 41 …. 20.123 — v Hardt (2006) 148 LGERA 61; [2006] NSWLEC 438 …. 16.17, 20.39, 20.77, 20.80 — v Hargraves [2002] NSWLEC 113 …. 20.29 — v Hochtief AG [2006] NSWLEC 200 …. 2.52, 20.102, 20.107 — v — [2007] NSWLEC 177 …. 20.109

— v Hopley (2003) 129 LGERA 329 …. 20.51 — v HTT Huntley Heritage Pty Ltd (2003) 125 LGERA 332 …. 15.76, 20.22 — v Hunter (2003) 124 LGERA 73 …. 20.107, 20.116 — v Integral Energy Australia Pty Ltd (2006) 146 LGERA 140 …. 20.101, 20.105 — v Johnson and Johnson Pacific Pty Ltd (2001) 114 LGERA 169 …. 20.107 — v Laison [2015] NSWLEC 89 …. 20.112 — v Land and Environment Court of New South Wales [2004] NSWCA 50 …. 21.20 — v Le Dome Pty Ltd (2002) 125 LGERA 121 …. 20.107 — v Leaway Pty Ltd [2006] NSWLEC 44 …. 16.6 — v Lithgow City Council [2007] NSWLEC 695 …. 15.48, 20.110 — v Mark Peters [2006] NSWLEC 465 …. 20.29 — v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 …. 20.52, 20.53 — v McMurty (unreported, Court of Petty Sessions, WA, Michelides M, 9 March 1995) …. 20.60 — v Mid Coast County Council (2003) 136 LGERA 233 …. 20.101 — v Middle Harbour Constructions Pty Ltd [2002] NSWCCA 123 …. 20.95 — v Milpharma Pty Ltd [1994] NSWLEC 189 …. 20.79 — v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 …. 20.106, 20.116 — v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 …. 20.49, 20.51, 20.52, 20.53, 2.71 — v Munters Pty Ltd (1998) 98 LGERA 279 …. 15.21, 20.53 — v N (1992) 26 NSWLR 352 …. 20.36, 20.39, 20.45, 20.47, 20.71 — v Norco Co-operative Ltd (2000) 108 LGERA 137 …. 2.52, 20.102, 20.113 — v Obaid [2005] NWLEC 171 …. 20.116 — v Orica Australia Pty Ltd [2014] NSWLEC 103 …. 7.21, 15.102, 20.92, 20.102, 20.104, 20.105, 20.106, 20.107, 20.109, 20.113, 20.116

— v Pal [2009] NSWLEC 35 …. 16.17, 20.116 — v — (No 2) [2009] NSWLEC 60 …. 20.116 — v Pannowitz [2005] NSWLEC 175 …. 16.18, 20.116 — v — [2006] NSWLEC 219 …. 20.64 — v — (No 2) (2006) 153 LGERA 126 …. 20.121 — v Perry (2004) 135 LGERA 431; [2004] NSWLEC 715 …. 16.17, 20.60 — v Peters (2006) 153 LGERA 238 …. 15.76 — v Pioneer Road Services Pty Ltd (1995) 86 LGERA 52 …. 20.107 — v Port Kembla Copper Pty Ltd (2001) 115 LGERA 391 …. 2.52, 20.102 — v Port Stephens Council [2011] NSWLEC 209 …. 20.101 — v Queanbeyan City Council [2010] NSWLEC 237 …. 15.63 — v Ramsey Food Processing Pty Ltd (2003) 125 LGERA 369 …. 20.107 — v — (No 2) [2010] NSWLEC 175 …. 20.116 — v — (No 4) [2011] NSWLEC 246 …. 20.123 — v Rashleigh [2005] ACTCA 42 …. 2.30, 18.20 — v Reederei Suderelbe GmbH & Co Schiffarhts Kg (RSS) (unreported, Melbourne Magistrates’ Court, 20 December 2005) …. 15.126 — v Rethmann Australia Environmental Services Pty Ltd (2003) 131 LGERA 422 …. 20.51, 20.107 — v Richardson; Environment Protection Authority v Behnfeld [2002] NSWLEC 205 …. 16.18 — v Ross [2009] NSWLEC 36 …. 20.92 — v Shannongrove Pty Ltd [2010] NSWLEC 162 …. 2.57, 16.18 — v — (No 2) [2012] NSWLEC 202 …. 20.92 — v Shell Refining (Aust) Pty Ltd (1994) 82 LGERA 298 …. 20.75 — v Shoalhaven Starches Pty Ltd [2006] NSWLEC 685 …. 20.116 — v Simsmetal Ltd (1990) 70 LGRA 312 …. 20.6 — v Snowy Hydro Ltd (2008) 162 LGERA 273 …. 20.105, 20.106, 20.107, 20.110 — v Snowy Mountains Engineering Corp Ltd (1994) 83 LGERA 51 …. 20.30,

20.53 — v Softwood Holdings Ltd (2000) 110 LGERA 87 …. 2.52, 20.102 — v State of New South Wales (Dept of Environment, Climate Change and Water) [2010] NSWLEC 67 …. 20.72, 20.101, 20.106 — v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114 …. 20.106, 20.109 — v Sydney Water Corporation Ltd (1999) 102 LGERA 232 …. 20.93, 20.101 — v Taylor (1995) 130 LGERA 144 …. 20.22, 20.77 — v Taylor Woodrow (Aust) Pty Ltd (1997) 101 LGERA 226 …. 20.34, 20.52, 20.71 — v — (No 2) (1997) 97 LGERA 368 …. 20.93 — v Tenterfield Shire Council (2000) 112 LGERA 173 …. 20.101 — v Terrace Earthmoving Pty Ltd and Page [2012] NSWLEC 216 …. 16.16 — v TransGrid [2003] NSWLEC 18 …. 13.22 — v Truegain Pty Ltd (No 4) [2014] NSWLEC 179 …. 20.96, 20.107 — v Tyco Water Pty Ltd (2005) 142 LGERA 241; [2005] NSWLEC 453 …. 1.24, 20.106, 20.110 — v Unomedical Pty Ltd (No 3) [2010] NSWLEC 198 …. 20.79, 20.80, 20.81 — v — (No 4) [2011] NSWLEC 131 …. 20.106 — v Vicary Corporation Pty Ltd (1997) 96 LGERA 46 …. 20.93 — v Virotec International Ltd (2001) 122 LGERA 118 …. 20.72 — v Waight (2003) 125 LGERA 399 …. 20.22 — v — (No 3) [2001] NSWLEC 126 …. 20.116 — v Warringah Golf Club [2003] NSWLEC 140 …. 20.47, 20.63 — v — (No 2) (2003) 129 LGERA 211 …. 20.95, 20.116 — v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 …. 8.84, 20.23, 20.96, 20.106, 20.109, 20.116 — v Water Board (1993) 79 LGERA 103 …. 20.39, 20.40, 20.43 — v White (1996) 92 LGERA 264 …. 20.116 Environmental and Earth Sciences Pty Ltd v Environment Protection Authority (1999) 103 LGERA 434 …. 20.77

Environmental Protection Authority, Re; Ex parte Chapple (1995) 89 LGERA 310 …. 10.42, 11.68, 11.70 Environmental Protection Authority, Re; Ex parte Sandbourne Holdings Pty Ltd [2002] WASCA 75 …. 11.70 Ernst v EnCana Corp [2014] ABQB 672 …. 18.65 Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 …. 10.9 Esposito v Commonwealth of Australia [2014] FCA 1440 …. 5.34 Esso Petroleum Co Ltd v Southport Corp Co Ltd [1956] AC 218; [1955] 3 All ER 864 …. 3.19, 3.24 Ethyl Corp v EPA 426 US 941 (1976) …. 1.21 European Bank Ltd v Evans of Robb Evans & Associates (2010) 264 ALR 1; [2010] HCA 6 …. 21.11 Evangelista v Development Assessment Commission (2004) 136 LGERA 180 …. 10.2 — v — [2004] SAERDC 30 …. 16.16 Evans v Forestry Commission of New South Wales (1982) 48 LGRA 266 …. 11.23 — v Maclean Shire Council (2003) 138 LGERA 229 …. 11.18 — v — [2004] NSWLEC 89 …. 22.9

F F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) (2007) 158 LGERA 250; [2007] NSWLEC 537 …. 8.31, 8.78, 11.86, 11.87, 21.17, 22.40, 22.41, 22.42, 22.65, 22.79 F v R (1983) 33 SASR 189 …. 3.29 Fabcot Pty Limited v Byron Shire Council [2010] NSWLEC 1013 …. 8.52 Fairfield City Council v Adams (No 2) [2010] NSWLEC 45 …. 21.22 — v Florence Flowers Pty Ltd [2006] NSWLEC 707 …. 15.24 — v N & S Olivieri Pty Ltd [2003] NSWCA 41 …. 10.25 Falkenberg v Minister for Environment and Conservation [2011] SAERDC 52 …. 7.29

Fanirata Pty Ltd v Logan City Council [2013] QPEC 55 …. 21.39 Fanna v Leavy; Rue v Leavy [2005] QCA 378 …. 14.46 Farquhar v Colac Otway Shire Council [2007] VCAT 61 …. 18.78 FastBuck$ v Dudley Pastoral Co Pty Ltd (No 2) (2002) 120 LGERA 80 …. 22.9 Fejo v Northern Territory of Australia (1998) 156 ALR 721 …. 2.8 Fell v Can Recycling (SA) Pty Ltd (2003) 133 LGERA 18; [2003] SASC 358 …. 7.13, 16.8 Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 …. 7.17 Fergusson v Stevenson (1951) 84 CLR 421 …. 5.44, 14.7 Field v South Australian Soccer Association [1953] SASR 224 …. 3.21 Figtree Reserve Pty Ltd v Goulburn Mulwaree Shire Council [2013] NSWLEC 65 …. 10.70, 22.26, 22.79 Filipowski v Dayton Corporation (2004) 138 LGERA 150 …. 20.112 — v Fratelli D’Amato (2000) 108 LGERA 88; [2000] NSWLEC 50 …. 15.126, 20.54 — v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 …. 15.126 — v Island Maritime Ltd (2006) 153 LGERA 1 …. 20.112 — v Schiffsbeteiligungsges mbh & Co KG; Filipowski v Kleemann (2004) 134 LGERA 48 …. 20.112 — v Thorneloe (2000) 112 LGERA 184 …. 20.107 Fischer and Australian Fisheries Management Authority, Re; Tapley and Australian Fisheries Management Authority, Re (2005) 41 AAR 417; [2005] AATA 936 …. 18.44, 18.46 Fisheries Jurisdiction Case: Spain v Canada (1998) ICJ Reports 432 …. 4.23 Fitzgerald v Firbank [1897] 2 Ch 96 …. 3.19, 3.21 Flynn v Whitehouse (1989) 68 LGRA 275 …. 3.16 Foley v Padley (1984) 154 CLR 349 …. 22.53 Forbes Shire Council v AG Australia Holdings Ltd [2007] NSWSC 847 …. 16.29

— v Pace (2002) 124 LGERA 37 …. 3.41 Ford Motor Co v Environment Protection Authority (1989) 37 APAD 314 …. 15.76 Forestry Commission of New South Wales v Corkill (1991) 73 LGRA 247 …. 14.38, 21.16 Forestry Tasmania v Brown (2007) 158 LGERA 191; [2007] FCAFC 186 …. 2.39, 6.7, 6.17, 6.38, 9.10, 18.75 Forgall Pty Ltd v Chief Executive of the Office of Environment and Heritage [2012] NSWLEC 1219 …. 13.18, 13.21 Forman v Australian Capital Territory Planning and Land Authority [2013] ACTSC 167 …. 10.40, 22.44, 22.78 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 …. 19.9 Fosters Group Ltd v Mornington Peninsula Shire Council [2010] VCAT 104 …. 10.28 Fox v Brisbane City Council (2003) 127 LGERA 390 …. 10.2, 10.34 Fraser Island Defenders Organisation Ltd v Hervey Bay Town Council [1983] 2 Qd R 72 …. 19.13, 19.18 Frayne v City of Burnside [2010] SAERDC 28 …. 13.33 Friends of Castle Hill Association Inc v Queensland Heritage Council (1993) 81 LGERA 346 …. 2.39, 19.4, 19.18 Friends of Elliston and Environment Conservation Inc v South Australia [2007] SASC 19 …. 22.70 Friends of Hinchinbrook Society Inc v Minister for Environment [1997] FCA 55 …. 19.43, 22.22, 22.73, 22.77 — v — (No 2) (1997) 93 LGERA 249 …. 22.74 — v — (No 5) (1998) 99 LGERA 140 …. 21.27 — v Minister for the Environment (No 3) (1997) 95 LGERA 229 …. 9.74, 12.16, 19.43, 22.73, 22.77 Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113 …. 21.30, 21.41 — v — (No 2) [2015] NSWLEC 76 …. 22.61, 22.79 Friends of Mallacoota Inc v Minister of Planning and Minister for

Environment and Climate Change [2010] VSC 222 …. 11.58, 18.57, 22.36 Friends of South West Rocks Inc v Machro Pty Ltd (2004) 136 LGERA 198 …. 9.45, 10.9, 11.14, 11.35, 22.64 Friends of the Wildlife Reserves Inc v Darebin City Council [2005] VCAT 137 …. 19.23, 19.27 Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 …. 9.55 Frydman v Port Phillip City Council [2012] VCAT 1838 …. 17.59 Fullerton Cove Residents Action Group Inc v Dart Energy Ltd [2012] NSWLEC 207 …. 18.66 — v — [2013] NSWLEC 38 …. 22.47

G Gagarimabu v Broken Hill Pty Co Ltd [2001] VSC 304 …. 4.2 Gales Holdings Pty Ltd v Tweed Shire Council (1999) 110 LGERA 235 …. 11.21, 22.47 — v — [2006] NSWLEC 85 …. 3.22, 8.66, 11.35 — v — [2006] NSWLEC 212 …. 14.94 — v — [2008] NSWLEC 209 …. 3.22, 13.51, 14.98 — v — [2011] NSWSC 1128 …. 3.20, 3.21, 3.22, 3.38, 3.43 — v — [2013] NSWCA 382 …. 3.21, 3.22, 3.43 Gallo v Chief Executive, Dept of Environment and Resource Management [2012] QLC 0015 …. 8.38, 8.53 Gard v Gibsons Ltd [2004] TASSC 108 …. 15.29 — v Pivot Acquaculture (2003) 131 LGERA 197 …. 15.29, 15.60, 20.81 Garners Beach Habitat Action Group Inc v Cassowary Coast Regional Council (No 2) [2010] QPEC 140 …. 8.53, 13.24 Garrett v Freeman (No 2) (2006) 145 LGERA 459 …. 20.81 — v — (No 4) [2007] NSWLEC 389 …. 14.81, 20.59 — v — (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 …. 14.82, 20.55, 20.59, 20.107, 20.116

— v Langmead [2006] NSWLEC 627 …. 14.81 — v Williams (2006) 160 LGERA 115 …. 20.23, 20.105, 20.106, 20.110 — v — (2007) 151 LGERA 92 …. 20.117, 20.118 Garrett on behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492 …. 14.38 Gatacre v Soil Conservation Service (NSW) (1992) 78 LGERA 379 …. 13.33, 20.39, 20.52 Gate v City of Fremantle (1986) 23 APAD 366 …. 19.10 Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 …. 22.46 Geelong Community for Good Life Inc v Environment Protection Authority (EPA) (2008) 159 LGERA 438; [2008] VSC 185 …. 7.33, 22.34, 22.36 — v Greater Geelong City Council [2008] VCAT 1687 …. 19.23, 19.27 Geelong Regional Commission v Barrabool Shire Council (1984) 14 APAD 258 …. 19.10, 19.22 Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173 …. 13.46, 13.50, 14.98 — v — [2008] NSWLEC 254 …. 8.52, 13.36, 13.46, 13.50 GHD Pty Ltd v Palerang Council [2009] NSWLEC 1342 …. 8.46 Giles v Baw Baw Shire Council [2009] VCAT 61 …. 8.68 Gilmore and Australian Fisheries Management Authority, Re [2005] AATA 943 …. 18.45 Giorganni v R [1985] HCA 29 …. 20.64 Gippsland Coastal Board v South Gippsland Shire Council (No 2) [2008] VCAT 187 …. 18.57 — v — (No 2) [2008] VCAT 1545 …. 8.67, 17.57 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 …. 13.33, 13.34, 20.23, 20.105, 20.106, 20.110, 20.111, 20.113 Giuffrida v Manningham City Council [2005] VCAT 571 …. 22.73 Glaser v Poole (No 2) [2010] NSWLEC 232 …. 21.34 Glendinning Minto Pty Ltd v Gosford City Council [2010] NSWLEC 1151 ….

13.48, 13.49, 13.54 Glenella Estates Pty Ltd v Mackay Regional Council [2010] QPEC 132 …. 8.78, 9.25 Glengyle Proprietors Pty Ltd v Minister for Environment and Conservation [2009] SASC 376 …. 18.28 Gold Coast City Council v Fawkes Pty Ltd [2007] QCA 444 …. 11.43 — v Satellite & Wireless Pty Ltd [2014] FCAFC 51 …. 5.52 Goldberg v Waverley Council [2007] NSWLEC 259 …. 11.87 Golden v Coffs Harbour City Council (1991) 72 LGRA 104 …. 11.88 Gordon Plath of the Department of Environment and Climate Change v Fish; Gordon Plath v Orogen Pty Ltd [2010] NSWLEC 144 …. 14.82, 20.115 Gordon Plath of the Department of Environment, Climate Change and Water v Lithgow City Council [2011] NSWLEC 8 …. 14.82 Gosford City Council v Brand [2006] NSWLEC 422 …. 22.11 — v Forrester [2010] NSWLEC 49 …. 13.34 GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 …. 22.64 Grafton Dell Pty Ltd v Ballarat City Council [2012] VCAT 1241 …. 12.72 Graham Barclay Oysters Pty Ltd v Ryan (2000) 109 LGERA 1 …. 3.29, 3.33 — v — (2002) 125 LGERA 1; [2002] HCA 54 …. 3.29, 3.34, 19.51 Grant v Downs (1976) 135 CLR 674 …. 15.85, 20.68 — v Kiama Municipal Council [2006] NSWLEC 70 …. 22.10 Gray v Macquarie Generation [2010] NSWLEC 34 …. 17.41, 17.44 — v Minister for Planning (2006) 152 LGERA 258; [2006] NSWLEC 720 …. 8.77, 11.87, 11.88, 11.90, 17.55, 22.62 Graymarshall Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2010] NSWLEC 54 …. 7.23, 20.66 Great Barrier Reef Marine Park Authority v Indian Pacific Pearls Pty Ltd (2004) 135 LGERA 401 …. 12.19, 22.57 Great Lakes Council v Lani (2007) 158 LGERA 1 …. 21.2, 21.16, 21.17, 21.22, 21.27, 22.14

Great Southern Managers Australia Ltd v Baw Baw Shire Council [2008] VCAT 375 …. 18.78 Great Southern Property Managers Pty Ltd v Colac-Otway Shire Council (2005) 144 LGERA 247 …. 10.2 — v — [2006] VCAT 706 …. 18.78 Greater Dandenong City Council v SITA Australia Pty Ltd [2006] VCAT 1361 …. 16.15 Greek Orthodox Community of St George Brisbane v Brisbane City Council [2011] QPEC 139 …. 10.36 Green and Australian Fisheries Management Authority, Re [2004] AATA 426 …. 18.46 Green and Australian Fisheries Management Authority, Re [2008] AATA 1074 …. 8.67, 18.46 Green v Minister for Climate Change, Environment and Water [2008] NSWLEC 48 …. 18.26 Greendene Development Corp Pty Ltd v Environmental Protection Authority (2003) 28 WAR 107; 134 LGERA 228; [2003] WASCA 242 …. 10.42, 11.68, 11.70, 11.73, 22.26, 22.29 Greenpeace Australia Ltd v Redbank Power Co Pty Ltd (1994) 86 LGERA 143 …. 8.64, 22.67 — v — [1994] NSWLEC 178 …. 2.70, 17.39 Greenpeace Australia Pacific Ltd v Chief Executive Officer of the Australian Radiation Protection and Nuclear Safety Agency (2002) 125 LGERA 233 …. 22.59 Greenpeace New Zealand Inc v Minister of Fisheries (unreported, High Court of New Zealand, 27 November 1995) …. 8.64 Greentree v Director-General of the Department of Land and Water Conservation [2002] NSWLEC 53 …. 20.5 — v Minister for the Environment and Heritage (2005) 143 LGERA 1; [2005] FCAFC 128 …. 4.44, 6.18, 12.23, 20.16, 20.114 Greenwood v Warringah Council [2013] NSWLEC 1119 …. 8.52 — v — Council [2013] NSWLEC 223 …. 22.4, 22.23 Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20 ….

2.10 Grishin v Conservator of Flora and Fauna [1998] ACTAAT 250 …. 12.44 Grunseth v Resource Planning and Development Commission [2008] TASSC 35 …. 9.49 Guerra v Italy (1998) 26 EHRR 357 …. 2.45 Gunns Ltd v Marr [2005] VSC 251 …. 2.42 — v — [2008] VSC 464 …. 2.42 — v — (No 2) [2006] VSC 329 …. 2.42 — v — (No 3) [2006] VSC 386 …. 2.42 Guthega Development Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (NSW) (Blue Cow Case) (1986) 7 NSWLR 353; 61 LGRA 401 …. 10.16, 11.22, 11.23, 11.86, 11.87, 22.38 Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140 …. 11.100, 22.41

H H and A van Beelan v Kingborough Council [2010] TASRMPAT 245 …. 13.42 Haddon v Lynch [1911] VLR 230 …. 3.21 Haggarty & Morrison Pty Ltd v New South Wales (1995) 98 LGERA 226 …. 2.70, 12.42, 22.18 Hakim v Waterways Authority of New South Wales (2006) 149 LGERA 415 …. 20.5 Hall v Beckenham Council (1949) 1 KB 716 …. 3.20 Hallett v City of Port Phillip [2015] VSC 313 …. 22.32 Halsey v Esso Petroleum [1961] 2 All ER 145 …. 3.21 Hamilton v Sutherland Shire Council [2012] NSWLEC 1015 …. 8.66, 8.68 Hancock Coal Pty Ltd v Kelly (No 4) [2014] QLC 012 …. 2.72, 8.21, 8.60, 11.49, 17.56 Hand and Minister for the Environment, Heritage and the Arts [2008] AATA 893 …. 14.5

Hansen v City of Melbourne (1977) 7 VPA 1 …. 19.10 Hanwood Pastoral Co Pty Ltd v Director-General, Department of Natural Resources (2005) 144 LGERA 139 …. 9.4, 18.15 Harden Bergia Pty Ltd v Baulkham Hills Shire Council (2002) 125 LGERA 273 …. 7.13 Harders & Harders v City of Port Lincoln [2002] SAERDC 117 …. 10.38 Hardie Holdings Pty Ltd v Director-General Department of Natural Resources (2007) 151 LGERA 373 …. 20.28, 22.70 Harding v Brisbane City Council [2008] QPEC 75 …. 10.70 Hardt v Environment Protection Authority (2007) 156 LGERA 337; [2007] NSWCCA 338 …. 16.17, 20.49, 20.50, 20.110 Harkness v Woodhead [1950] SASR 54 …. 3.21 Harmer and Western Australian Planning Commission [2012] WASAT 142 …. 13.30 Harper v Minister for Sea Fisheries (1989) 168 CLR 314; 88 ALR 38; 63 ALJR 687; [1989] HCA 47 …. 3.7, 3.8, 3.9, 5.30, 5.40, 5.41, 7.38, 18.47 Harris v Carnegie’s Pty Ltd [1917] VLR 95 …. 3.21 — v Harrison [2014] NSWCCA 84 …. 20.111 — v Scenic Rim Regional Council [2014] QPEC 16 …. 22.56 Harrison v Baring (No 2) [2012] NSWLEC 145 …. 20.102 — v Harris [2013] NSWLEC 105 …. 20.107 — v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 …. 7.15 Harvey v Minister Administering the Water Management Act 2000; Tubbo v Same (2008) 160 LGERA 50; [2008] NSWLEC 165 …. 8.31, 8.45, 18.26, 22.36, 22.40, 22.64 Hasan v Moreland City Council [2005] VCAT 1931 …. 8.68 Hastings Municipal Council v Mineral Deposits Ltd [1981] 1 NSWLR 310 …. 11.17 Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274 …. 9.52, 9.73, 22.47 — v — (No 3) [2010] NSWCA 39 …. 21.28, 21.30

Hatton v UK (2003) 37 EHRR 28 …. 2.45 Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217 …. 8.34, 8.77, 17.55, 17.59, 22.27, 22.30 Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Ltd [2008] NSWLEC 138 …. 13.32 — v Sammut (2000) 111 LGERA 208 …. 10.9, 22.34 He Kaw Teh v R (1985) 157 CLR 523 …. 20.36, 20.71, 20.76, 20.77 Heavenly Queen Temple Society Inc v Maribyrnong City Council [2005] VCAT 875 …. 8.68, 16.45 Helman v Byron Shire Council (1995) 87 LGERA 349 …. 11.19, 11.87, 11.88, 22.43 Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 …. 5.40, 5.41 Hemming v Droulias (2000) 107 LGERA 354 …. 20.96 Henderson v Corporation of the City of Adelaide (No 2) [2012] FCA 9 …. 14.18 — v Hickling [2010] NSWLEC 213 …. 21.9 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 …. 21.16, 21.17 — v Minister for Planning [2009] NSWLEC 185 …. 10.62 — v — (No 3) [2010] NSWLEC 155 …. 21.31, 21.33 Hill v Higgins [2012] NSWSC 270 …. 3.19, 3.20, 3.21 — v Woollahra Municipal Council (2003) 127 LGERA 7 …. 22.20, 22.64 Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59 …. 7.18 Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd [2012] NSWLEC 45 …. 20.77, 20.79 — v Mouawad [2014] NSWLEC 59 …. 22.39 — v Suciu [2009] NSWLEC 145 …. 16.17 Hinset Pty Ltd v Lane Cove Council [2011] NSWLEC 120 …. 22.11 Histollo Pty Ltd v Director-General of National Parks and Wildlife Service

(1998) 103 LGERA 355 …. 20.50 Histpark Pty Ltd v Maroochy Shire Council (2002) QPELR 134 …. 8.68 Hobart City Council v Budd [2008] TASSC 68 …. 15.25 Hockitt Pastoral Co Pty Ltd v Great Lakes Shire Council [2007] NSWLEC 514 …. 14.98 Hodgens v Gunn; Ex parte Hodgens (1989) 68 LGRA 395 …. 22.32 Hoffie v Brisbane City Council [2013] QPEC 41 …. 22.9 Holcim (Aust) Pty Ltd v Indigo Shire Council [2012] VCAT 640 …. 12.72 Holeywell v Clarence City Council [1994] ELR 163 …. 19.17 Holmes v Director-General, Department of Infrastructure, Planning and Natural Resources (2005) 139 LGERA 102 …. 14.81, 20.5 Holroyd City Council v Abouantoun t/as AKA Demolition and Tipping (2003) 140 LGERA 250 …. 20.110 — v Skyton Developments Pty Ltd (2002) 119 LGERA 225 …. 20.77 Homemaker Hub Pty Ltd v Strathfield Council [2009] NSWLEC 74 …. 19.58 Homeworld Ballina Pty Ltd v Ballina Shire Council [2010] NSWCA 65 …. 9.49 Honeywell Ltd and Commissioner for Land and Planning, Re [2000] ACTAAT 28 …. 10.2 Hooper v Port Stephens Council (No 3) [2010] NSWLEC 178 …. 21.31 Hornsby Council v Roads and Traffic Authority (NSW) (1997) NSWCA 40577/94 …. 2.52 Hornsby Shire Council v Porter (1990) 70 LGRA 175 …. 22.44 — v Vitone Developments Pty Ltd (2003) 132 LGERA 122; [2003] NSWLEC 272 …. 11.35, 14.84, 14.94, 20.39 Horta v Commonwealth (1994) 181 CLR 183 …. 4.3, 4.44 Hoser v Department of Sustainability and Environment [2012] VCAT 264 …. 14.56 — v — [2014] VSCA 206 …. 14.56 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 …. 22.40 Houghton v Bond [2010] VSC 193 …. 13.27

House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44 …. 9.53 Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 …. 11.88 — v — [2010] NSWSC 1312 …. 3.20 — v — [2011] NSWCA 349 …. 10.15, 10.16, 11.88, 22.27 — v — (No 3) [2012] NSWLEC 43 …. 21.6 Hub Action Group Inc v Minister for Planning (2008) 161 LGERA 136; [2008] NSWLEC 116 …. 2.71, 7.36, 8.40, 8.43, 8.48, 8.78, 9.38, 17.57, 18.78, 22.47, 22.49 Hudak v Waverley Municipal Council (1990) 70 LGRA 130 …. 9.53 Hudson v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 92 …. 22.39 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2004] FCA 1510 …. 19.44 — v — [2005] FCA 664 …. 4.27, 19.44 — v — [2006] FCAFC 116 …. 4.27, 19.44 — v — [2008] FCA 3 …. 2.38, 4.27, 4.41 — v — [2008] FCA 36 …. 2.38, 4.27, 4.41 — v — [2015] FCA 1275 …. 4.27 — v Minister for the Environment and Heritage (2003) 126 FCR 205; [2003] FCA 64 …. 6.14, 14.19 — v National Parks and Wildlife Service [2000] NSWADT 133 …. 14.38 Humane Society International and Minister for the Environment and Heritage [2006] AATA 298 …. 8.57 Hume v Launceston City Council (unreported, Resource Management and Planning Appeal Tribunal (Tas), No 3166/96) …. 20.7 Humphrey & Edwards Architects Pty Ltd v Council of the City of Sydney [2008] NSWLEC 329 …. 19.58 Hunnam v Evans (2003) 129 LGERA 106 …. 22.65 Hunter v Minister for Planning [2012] WASC 247 …. 22.70 Hunter Community Environment Centre Inc v Minister for Planning [2012]

NSWLEC 195 …. 8.77, 17.55, 17.56, 17.59 Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169 …. 10.2 Hunter Ecologically Sustainable Employment Group Inc v HEZ Pty Ltd (2003) 129 LGERA 344 …. 21.41 Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221 …. 8.34, 8.38, 8.68, 8.77, 17.56 — v Minister for Planning and Infrastructure (No 4) [2014] NSWLEC 200 …. 18.62 Hunter Resources Ltd v Melville (1988) 164 CLR 234 …. 22.44 Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378 …. 13.55 Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 …. 22.56 Hutchison 3G Australia Pty Ltd v City of Mitcham (2006) 145 LGERA 386; [2006] HCA 12 …. 5.50 Hymix Industries Pty Ltd v Alberton Investments Pty Ltd [2001] QCA 334 …. 11.44 Hynes Urban Planners Pty Ltd v Hawkesbury City Council (2003) 123 LGERA 312 …. 7.13, 11.18

I ICM Agriculture Pty Ltd v Commonwealth (2009) 170 LGERA 373; [2009] HCA 51 …. 2.22, 2.31, 5.22, 5.36, 5.37, 18.22, 18.32 Idonz Pty Ltd v National Capital Development Commission (1985) 58 LGRA 99 …. 10.9 Ikic v Evans (1989) 7 BCL 114 …. 3.20 Ikonomidis Reid Pty Ltd v Whittlesea City Council [2010] VCAT 1344 …. 13.27 Ilic v City of Adelaide [2010] SASC 139 …. 2.70, 2.71, 22.18, 22.75 Impress (Worcester) Ltd v Rees [1971] 2 All ER 357 …. 20.34 Indian Council for Enviro-Legal Action v Union of India (1996) 3 Supreme

Court Cases 212 …. 2.45 ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104 …. 19.28, 19.54 Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68 …. 10.15 Ingram, Re [1951] VLR 424 …. 12.3 INL Group Ltd v Director-General of the New South Wales Department of Planning [2011] NSWLEC 256 …. 22.66 International Fund for Animal Welfare (Australia) Pty Ltd and Minister for Environment and Heritage [2005] AATA 1210 …. 14.5 Ironstone Community Action Group Inc v NSW Minister for Planning and Duralie Coal Pty Ltd [2011] NSWLEC 195 …. 8.52, 13.51, 13.54 Irwin v Meander Valley Council (2007) 157 LGERA 347 …. 22.40 Isbester v Knox City Council [2015] HCA 20 …. 22.40

J Jacra Nominees Pty Ltd v Surf Coast Shire Council [2007] VCAT 1190 …. 22.73 Jarasius v Forestry Commission of New South Wales (No 1) (1988) 71 LGRA 79; ELR 0104 …. 6.48, 11.14, 11.23, 11.26, 11.27, 11.29, 11.30, 11.87, 11.88, 21.6, 21.13 Javanmard v City of Burnside [2012] SAERDC 39 …. 13.33 Jeffman Pty Ltd and Lawrence Dry Cleaners Pty Ltd v Environment Protection Authority of New South Wales, Sydney Water Corporation and Douglas and Hilary Hutchinson [2011] NSWLEC 89 …. 20.4 Jelinek v Shire of Alexandra [1990] ELR 029 …. 19.23 Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board [2010] NSWCA 146 …. 2.61 John Brown Lenton & Co Pty Ltd v Minister for Urban Affairs and Planning (1999) 106 LGERA 150 …. 22.43 John Williams Neighbourhood Group Inc v Minister for Planning [2011] NSWLEC 100 …. 21.31, 21.41 Johnson v Johnson (2000) 201 CLR 488 …. 22.40

— v Kent (1975) 132 CLR 164 …. 19.45, 19.47 Johnson Trading Industries Pty Ltd v Port Pirie Regional Council [2007] SAERDC 42 …. 17.57 Joly Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCA 133 …. 13.20, 20.5 Jones v Glenorchy City Council (2006) 145 LGERA 76; [2006] TASSC 27 …. 15.25, 20.22, 20.23 — v Llanrwst Urban District Council [1911] 1 Ch 393 …. 3.19 — v Lysaght (Aust) Ltd (1983) 51 LGRA 90 …. 20.33 — v Queensland [2001] FCA 756 …. 12.14 JPR Legal Pty Ltd v Marrickville Council [2009] NSWLEC 156 …. 22.17 Justice and Australian Fisheries Management Authority and Department of Fisheries Western Australia, Re [2002] AATA 49 …. 18.46

K Kangaroo Point East Association Inc v Balkin [1995] 2 Qd R 135 …. 5.46 Kangaroo Point Residents Association v Brisbane City Council [2009] QPEC 33 …. 10.70 Kapiris v Macedon Ranges Shire Council [2012] VCAT 1969 …. 22.9 Kari and Ghossayn Pty Ltd v Sutherland Shire Council (2006) 150 LGERA 231 …. 20.111, 22.39 Karpany v Dietman [2013] HCA 47 …. 2.13 Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337; 72 ALJR 722 …. 5.28, 8.8 Katoomba Gospel Trust v Blue Mountains City Council (1993) 130 LGERA 266 …. 7.15, 10.3 Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195 …. 19.58 Keam v Bass Coast SC [2013] VCAT 1647 …. 13.27 Keech v Western Lands Commissioner (2003) 132 LGERA 23 …. 8.26, 9.14, 13.64 Kelly v Kelly (1990) 92 ALR 74; 64 ALJR 234 …. 2.33

— v Mosman Municipal Council [2010] NSWCA 370 …. 19.53, 21.44 — v R [2004] HCA 12 …. 7.9 Kelvedon Pty Ltd v Shire of Northam [2011] WASC 288 …. 19.10 Kempark Pty Ltd v New South Wales [1998] NSWLEC 205 …. 16.25 Kempsey Shire Council v Slade [2015] NSWLEC 135 …. 20.32 Kennedy v Director-General, Department of Environment and Conservation [2006] NSWLEC 456 …. 22.55, 22.57 — v — (No 2) [2007] NSWLEC 271 …. 21.27 — v Director-General, National Parks and Wildlife Service (No 2) (2002) 122 LGERA 84 …. 21.27, 21.33 — v New South Wales Minister for Planning [2010] NSWLEC 129 …. 8.33, 8.34 — v — [2010] NSWLEC 177 …. 21.13 — v — [2010] NSWLEC 240 …. 22.66 — v Stockland Development Pty Ltd (No 2) [2011] NSWLEC 10 …. 21.41, 21.42 — v — (No 3) [2011] NSWLEC 249 …. 21.30 Kent v Cavanagh (1973) 1 ACTR 43 …. 19.47 — v Johnson (1973) 21 FLR 177 …. 2.52 — v Minister for Works [1973] 2 ACTR 1 …. 3.21 Kenway & Smith v Cohen [2010] QDC 236 …. 13.26 Keough v Burnside City Corporation (1992) 75 LGRA 163 …. 12.74 Kerfoot Developments Pty Ltd v Albury City Council [2011] NSWLEC 154 …. 14.97 Keristar Pty Ltd v Maroochy Shire Council [2003] QPEC 64 …. 18.78 Khreich v Holroyd City Council [2015] NSWLEC 1360 …. 13.34 Khuu & Lee Pty Ltd v Corporation of the City of Adelaide [2011] SASCFC 70 …. 22.17 Kiao v West (1985) 159 CLR 550 …. 22.36 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277

…. 22.55, 22.56, 22.57, 22.64, 22.79 — v — (2007) 150 LGERA 333 …. 21.33 King v Bathurst Regional Council [2006] NSWLEC 505 …. 22.75 — v Gousettis (1986) 60 LGRA 116 …. 19.8 — v Great Lakes Shire Council [1986] 58 LGRA 366 …. 10.16, 22.68 — v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Ltd v Minister for Planning [2010] NSWLEC 1102 …. 8.68, 9.73, 17.57, 18.19 King Cole Hobart Properties Pty Ltd v Planning Appeal Board (1992) 77 LGRA 92 …. 19.17 Kingscote District Council v Kangaroo Island Eco Action Inc (No 1) (1996) 92 LGERA 117 …. 9.22, 13.10, 22.43 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 …. 22.27, 22.30 Kivi v Forestry Commission of New South Wales (1982) 47 LGRA 38 …. 11.23, 11.27 Klein v R (1989) 39 A Crim R 332 …. 14.4 Kraemers v Attorney-General (Tas) [1966] Tas SR 113 …. 3.20 Krajniw v Brisbane City Council [2008] QPEC 80 …. 13.24 — v — [2010] QPEC 33 …. 14.46 — v — [2011] FCA 563 …. 6.13 Krulow v Glamorgan Spring Bay Council [2013] TASSC 33 …. 21.4 Ku-ring-gai Council v Minister for Planning (NSW) (No 2) [2008] NSWLEC 276 …. 21.32 — v Sydney West Joint Regional Planning Panel (No 2) [2010] NSWLEC 270 …. 10.70 Ku-ring-gai Municipal Council v Beaini (2001) 112 LGERA 397 …. 13.34

L L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225 …. 3.29

L’Estrange v Brisbane Gas Co [1928] St R Qd 180 …. 3.21 Lac Lanoux Arbitration, Spain v France (1957) 12 RIAA 285 …. 4.15 Lacey v City of Burnside [2009] SASC 136 …. 13.33 Lainson v Sutherland Shire Council (1998) 108 LGERA 1 …. 22.40 Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225; [2003] NSWCA 313 …. 10.9, 10.26, 10.50, 13.44 Lakshmanan v City of Norwood [2010] SASCFC 15 …. 22.57 Lamason v Australian Fisheries Management Authority [2009] FCA 245 …. 9.16, 18.43, 18.44 Lamattina v Gould [2009] SASC 130 …. 13.12 Land Oberösterreich und Österreich v Commission T-366/03 …. 8.74 Landon-Lane v Minister for Economic Development and Tourism and Premier of Tasmania [2009] TASSC 50 …. 22.29 Lane Cove Council v Minister for Urban Affairs and Planning (2005) 140 LGERA 185 …. 9.48 Lansen v Minister for Environment and Heritage [2008] FCA 903 …. 6.27, 6.32, 6.60, 6.67, 6.70, 19.44, 22.64 — v — [2008] FCAFC 189 …. 6.70, 22.46 — v — (No 3) (2008) 162 LGERA 258 …. 21.27 Latitude Fisheries Pty Ltd v Australian Fisheries Management Authority [2002] FCA 416 …. 18.45, 18.46 Latoudis v Casey (1990) 170 CLR 534 …. 21.23 Lawrence v Kempsey Shire Council (1995) 87 LGERA 49 …. 3.39 Lawrence, Re; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549; 84 LGERA 113 …. 15.91, 20.6, 21.18, 22.44 Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts [2008] FCA 588 …. 19.44 — v — (2009) 165 LGERA 203; [2009] FCA 330 …. 7.36, 8.66, 8.71 — v — (2009) 178 FCR 385; [2009] FCAFC 114 …. 2.39, 6.71, 8.53, 8.66 Leacth v Director General of National Parks and Wildlife Service [1993] NSWLEC 191 …. 8.25

— v National Parks and Wildlife Service & Shoalhaven City Council (1993) 81 LGERA 270 …. 4.45, 8.62, 8.66, 8.67, 8.84, 10.71, 11.87, 22.59 Lee v Commonwealth of Australia [2014] FCA 432 …. 5.36 Leichhardt Council v Geitonia Pty Ltd (No 6) [2015] NSWLEC 51 …. 20.55 — v Telstra Corporation (2005) 139 LGERA 62 …. 5.52 Leichhardt Municipal Council v Maritime Services Board of New South Wales (1985) 57 LGRA 169 …. 11.30 — v Minister for Planning (1992) 77 LGRA 402 …. 9.39 — v — (1992) 78 LGERA 306 …. 22.35, 22.43 Leonard v Southern Rural Water [2007] VCAT 1562 …. 18.28 Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 …. 22.29 Lewani Springs Resort Pty Ltd v Gold Coast City Council [2010] QCA 145 …. 22.43, 22.44 Life of the Land v Brinegar 414 US 1052 (1973) …. 11.97 Lilywhite v Trimmer [1867] 16 LT 318 …. 3.21 Linaker v Greater Geelong City Council [2010] VCAT 1806 …. 19.10, 19.22 Lincoln Minerals Ltd v Minister for Sustainability, Environment and Conservation [2014] SAERDC 33 …. 7.12 Lindner & Whetstone v Regional Council of Goyder [2005] SAERDC 115 …. 18.28 — v — (No 2) [2006] SAERDC 67 …. 8.67, 17.57 Lismore City Council v Ihalainen [2013] NSWLEC 149 …. 22.32 Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 …. 22.40, 22.44 Liverpool City Council v Cauchi (2005) 145 LGERA 1 …. 22.32 — v Roads & Traffic Authority & Interlink Roads Pty Ltd (1991) 74 LGRA 265 …. 11.14, 21.6, 21.16 Loader v Moreton Bay Regional Council [2013] QCA 269 …. 22.21, 22.23, 22.79 Logan-Bald Partnership v Byron Shire Council (2002) 123 LGERA 225 …. 7.13, 11.18 Lomas v Peek [1947] 2 All ER 574 …. 20.49

Long v Hornsby Shire Council [2007] NSWLEC 267 …. 10.26 Lopez Ostra v Spain (1994) 20 EHRR 277 …. 2.45 Lord v Hiscock (1980) 47 LGRA 168 …. 19.10 Lorne Country Club Inc v Surf Coast Shire Council [2004] VCAT 260 …. 13.38 Love v Victoria [2009] VSC 215 …. 22.70 Lowden v Shire of Kilmore (1989) 41 APA 319 …. 19.23 Lowy v Land and Environment Court of New South Wales [2002] NSWCA 353 …. 21.20 LPD Property Pty Ltd v Moreland City Council [2011] VCAT 65 …. 19.42 Lucy v OCC Holdings Pty Ltd (2008)157 LGERA 279 …. 7.36 Lyons v Sutherland Shire Council (2000) 110 LGERA 441 …. 22.73, 22.77

M MC Mehta v Kamal Nath (1987) 4 SCC 463 …. 21.19 Mabo v Queensland (No 2) (1992) 175 CLR 1 …. 2.8, 2.10, 2.11, 3.2, 4.44 Macarthur Wind Farm Pty Ltd v Moyne Shire Council [2006] VCAT 1423 …. 17.46, 17.57 Macedon Ranges Shire Council v Thompson [2009] VSCA 209 …. 21.34 Mackenzie Architects International Pty Limited v Ku-ring-gai Council [2015] NSWLEC 1353 …. 13.51 Mackenzie Intermoodal Pty Ltd v Lawson (2003) 127 LGERA 219 …. 10.9 Maclaine Watson v Department of Trade and Industry [1989] 3 All ER 523 …. 4.41 Macquarie Generation v Hodgson [2011] NSWCA 424 …. 3.45, 17.44 MacTiernan, Re; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264 …. 22.70 MacTiernan, Re; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138; 141 LGERA 106 …. 19.19, 19.33, 21.18, 21.20, 22.40 Maddingley Brown Coal Pty Ltd v Environment Protection Authority [2013] VSC 582 …. 7.14, 7.21, 16.16, 22.32, 22.49

Magee v Boroondara City Council [2011] VSC 78 …. 22.40, 22.41 Maitland City Council v Anambah Homes Pty Ltd (2005) 147 LGERA 234 …. 22.27, 22.45, 22.52, 22.53 Majury v Sunbeam Corp Ltd [1974] 1 NSWLR 659 …. 20.32, 20.33, 20.43 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 …. 22.11 Malliate v Sharpe [2001] NSWSC 1057 …. 3.21 Malone v Laskey [1907] 2 KB 141 …. 3.11 Manchester Corp v Farnworth [1930] AC 171 …. 3.44 Mandalong Progress Association Inc v Minister for Planning (2003) 126 LGERA 408 …. 10.16 Manly Council v Horizon Habitats Pty Limited [2015] NSWLEC 15 …. 14.98 — v Hortis (2001) 113 LGERA 321 …. 22.64 — v Leech [2015] NSWLEC 149 …. 20.32 Manotik v Warringah Council [2008] NSWLEC 1463 …. 10.23 Manwelland Pty Ltd v Dames & Moore Pty Ltd [2000] QSC 432 …. 16.45 — v — [2001] QCA 436 …. 16.45 March v Stramare (1991) 171 CLR 506 …. 3.36 Marcic v Thames Water Utilities Ltd [2004] 2 AC 42 …. 3.43 Margarula v Minister for Environment (1999) 103 LGERA 240 …. 22.20 Maritime Services Board of New South Wales v Citizens Airport Environment Association Inc (NSW Court of Appeal, 23 December 1992, unreported) …. 21.35 Maroochy Shire Council v Barns [2002] QPEC 25 …. 21.5 Marrangaroo East Pty Ltd v Blayney Shire Council [2011] NSWLEC 245 …. 10.14 Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145 …. 22.70, 22.71 Marsh v Baxter [2014] WASC 187 …. 3.31 Martin v New South Wales Minister for Mineral and Forest Resources [2011] NSWLEC 38 …. 21.30

Mason v Greater Geelong City Council [2013] VCAT 2057 …. 2.72 — v Tritton (1994) 34 NSWLR 572 …. 2.11 Massachusetts v Environmental Protection Agency 127 S Ct 1438 (2007) …. 17.42 Massie v Brisbane City Council [2007] QCA 159 …. 22.74 Masterbuilt Pty Ltd v Hornsby Shire Council [2005] NSWLEC 212 …. 10.26 Matic v Mid-Western Regional Council (No 3) [2009] NSWLEC 1220 …. 22.10 Maule v Liporoni (2002) 122 LGERA 140 …. 22.46 Maurici v Chief Commissioner of State Revenue (2001) 114 LGERA 376 …. 22.9 Maxwell v Hornsby Council (2002) 121 LGERA 186 …. 7.13 May v Redland Shire Council [2009] QPEC 106 …. 13.32 MBF Sealink Pty Ltd v Matthews (1993) 80 LGERA 437 …. 19.17 MC Metha v Kamal Nath (1997) 1 SCC 388 …. 2.45 MC Property Investments Pty Ltd v Sunshine Coast Regional Council (No 2) [2013] QPEC 39 …. 22.9 MCC Energy Pty Ltd v Wyong Shire Council (2006) 149 LGERA 59; [2006] NSWLEC 581 …. 10.14, 22.47, 22.72 McCallum v Sandercock [2011] NSWLEC 175 …. 15.24, 19.39, 21.2 McClure v Mayor and Councillors of the City of Stirling (No 3) [2009] WASC 247 …. 21.25 McConnell Dowell Contractors (Aust) Pty Ltd v Environment Protection Authority (2000) 131 LGERA 234 …. 20.51 McCubbin v Environment Protection Authority (1986) 20 APA 381 …. 19.11, 19.22 McDonald v Moorabool Shire Council [2005] VCAT 1764 …. 8.67 McEachern v Minister for Energy and Resources, and Ports [2001] VSC 506 …. 18.49 McFadzean v Construction Forestry and Mining Energy Union [2007] VSCA 289 …. 2.40, 3.21

McGill v Bass Coast Shire Council [2007] VCAT 1028 …. 9.38 McGinn v Ashfield Council [2011] NSWLEC 105 …. 21.26, 21.32, 21.33 McGovern v Ku-ring-gai Council (2007) 153 LGERA 308; [2007] NSWLEC 22 …. 22.40, 22.70 — v — [2008] NSWCA 209 …. 10.19, 11.35, 11.88 McKell v Rider (1908) 5 CLR 480 …. 3.21 McKenna v British Aluminium [2002] Env LR 30 …. 2.46 McKenzie v McKenzie [1970] 3 WLR 472 …. 19.53 McLaren v Lewis (No 2) [2011] NSWLEC 176 …. 21.23 MD Bleasel v Kingborough Council [2007] TASRMPAT 124 …. 8.67 Mead v Whisson [2006] SASC 69 …. 14.35 Meander Valley Council v Resource Management and Planning Appeal Tribunal [2013] TASSC 42 …. 7.36 Medway v Minister for Planning (1993) 80 LGERA 121 …. 22.36 Mees v Roads Corporation (2003) 128 FCR 418; [2003] FCA 306 …. 6.7, 19.44, 21.8 Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 143 LGERA 319; [2006] NSWCA 31 …. 3.21, 3.43 Melville v Craig Nowlan & Associates Pty Ltd (2002) 119 LGERA 186 …. 21.41 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 …. 2.2, 2.9 Meriton Apartments Pty Ltd v Council of City of Sydney [2010] NSWLEC 64 …. 10.50 — v — [2011] NSWCA 17 …. 13.45 — v — (No 2) [2010] NSWLEC 63 …. 22.10 — v Ku-ring-gai Council (2006) 152 LGERA 301 …. 10.26 — v Sutherland Shire Council [2006] NSWLEC 139 …. 10.3 Merman Pty Ltd v Parker, Minister for Minerals & Energy [1987] WAR 159 …. 22.34 Metgasco Limited v Minister for Resources and Energy [2015] NSWSC 453

…. 22.60 Metroll Victoria Pty Ltd v Wyndham City Council (2007) 152 LGERA 437 …. 21.15 Metropolitan Manila Development Authority v Concerned Residents of Manila Bay G. R. Nos. 171947-48, 18 December 2008 …. 21.19 Metropolitan Property Group v Moreland CC [2011] VCAT 1285 …. 8.53 Michael, Re; Ex parte WMC Resources Ltd (2003) 134 LGERA 246 …. 22.45 Michael Hesse Associates Pty Ltd v Parramatta City Council (2003) 131 LGERA 390 …. 8.48 Michael Suttor Pty Ltd v Woollahra Municipal Council [2009] NSWLEC 1256 …. 19.58 Michelmore v Minister for Environment and Conservation (2004) 137 LGERA 306 …. 9.21 Michos v Council of the City of Botany Bay [2012] NSWSC 625 …. 3.21, 3.23 Micklyn Investments Pty Ltd v Diggers Australia Pty Ltd [2006] SAERDC 76 …. 16.43 Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290; 81 LGERA 104 …. 3.40, 3.43 Mid Western Community Action Group Inc v Mid-Western Regional Council [2007] NSWLEC 411 …. 22.55 Mildura Rural City Council v Minister for Major Projects (2006) 144 LGERA 335 …. 22.42 Millmerran Shire Council v Smith (No 2) [2008] QPEC 113 …. 21.23 Milne v Minister for Planning (No 2) [2007] NSWLEC 66 …. 11.29 Miltonbrook Managements Pty Ltd v Shellharbour City Council (2004) 134 LGERA 1 …. 11.18 Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulation [2014] WASC 468 …. 22.79 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48 …. 2.67 — v — [2009] NSWCA 352 …. 22.27 Minister Administering the Ports Corporatisation and Waterways

Management Act 1995 v Hakim [2005] NSWLEC 92 …. 20.71 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 …. 8.39, 8.82, 22.38, 22.57, 22.59, 22.67, 22.72, 22.73, 22.77 Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274; 75 ALR 218 …. 22.18, 22.33, 22.38 Minister for Immigration and Citizenship v Szjss [2010] HCA 48 …. 22.66 Minister for Immigration and Ethnic Affairs v Baker (1997) 24 AAR 457 …. 22.63 — v Teoh (1995) 183 CLR 273 …. 4.3, 4.43, 8.8, 22.34 — v Wu Shang Liang (1996) 185 CLR 259 …. 22.17 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Lam (2003) 214 CLR 1 …. 22.34 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 …. 22.64 Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224 …. 2.64, 8.29, 8.31, 8.32, 8.33, 8.34, 8.36, 8.37, 8.77, 17.55, 22.28, 22.49, 22.57, 22.62, 22.65, 22.66, 22.79 — v — (No 2) [2008] NSWCA 334 …. 21.29, 21.33 Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 112 ALR 211 …. 9.16, 18.5, 18.44, 22.74 Minister for Resources, Re; Ex parte Cazaly Iron Pty Ltd (2007) 34 WAR 403 …. 22.58 Minister for Sustainability, Environment, Water, Population and Communities v De Bono [2012] FCA 643 …. 14.18 Minister for the Environment, Re; Ex parte Elwood (2007) 154 LGERA 366; [2007] WASCA 137 …. 10.42, 11.68, 11.76, 22.70 Minister for the Environment v Karstens [2015] FCA 649 …. 12.30 — v Lucky S Fishing Pty Ltd [2015] FCA 10 …. 12.30 Minister for the Environment and Conservation v Simes (2007) 98 SASR 481; 153 LGERA 225; [2007] SASC 248 …. 7.32, 9.21, 18.28, 22.58 Minister for the Environment & Heritage v Greentree (No 2) [2004] FCA 741 …. 6.46

— v — (No 3) (2004) 136 LGERA 89; [2004] FCA 1317 …. 6.73, 12.23, 20.16, 20.114 — v Queensland Conservation Council Inc (2004) 134 LGERA 272; [2004] FCAFC 190 …. 2.67, 4.44, 6.15, 6.17, 7.11, 7.14, 7.15, 19.44, 22.75 — v Warne [2007] FCA 599 …. 12.30, 20.17 — v Wilson [2004] FCA 6 …. 12.30, 20.16, 20.17 Minister for the Environment, Heritage and the Arts v Lamattina [2009] FCA 753 …. 13.12, 13.62, 14.18, 20.17, 20.97 — v PGP Developments Pty Ltd [2010] FCA 58 …. 6.19, 6.46, 6.73, 20.17 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 …. 7.18, 7.28, 9.39, 9.48, 11.87, 22.53 Minister of State for Conservation and Land Management and the Environment, Re; Ex parte West Australian Field and Game Association Inc (1992) 78 LGERA 81 …. 14.59, 22.18 Minnici v Warringah Council [2009] NSWLEC 1098 …. 10.23 Minors Oposa v Secretary of the Department of Environment and Natural Resources (1994) 33 ILM 173 …. 2.45 Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA 349 …. 10.9, 10.16, 22.55 Mitchell v Vella (1999) 101 LGERA 333 …. 22.64 MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 6) [2011] NSWSC 1613 …. 3.46, 10.70 Momentum Architects Pty Ltd v Hornsby Shire Council (2002) 123 LGERA 207 …. 7.13, 11.18 Moolarben Coal Mines Pty Ltd v Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division); Moolarben Coal Mines Pty Ltd v Director-General of the Department Trade and Investment, Regional Infrastructure and Services [2011] NSWLEC 191 …. 22.71 Mooney v Maroondah City Council (2006) 147 LGERA 409 …. 13.32 Moore River Co Pty Ltd and Western Australian Planning Commission [2007] WASAT 98 …. 13.32, 18.58 More and Water and Rivers Commission [2006] WASAT 112 …. 18.28

Moreno Gómez v Spain ECHR 4143/02 …. 2.45 Morris v Department of Environment and Climate Change [2008] NSWLEC 309 …. 14.38 Morrison v Che Mat (1997) 95 LGERA 213 …. 20.107 — v Peacock (2002) 123 LGERA 127; [2002] HCA 44 …. 4.44, 15.114 — v Peers (1995) 87 LGERA 39 …. 20.41, 20.93 — v Valle (1995) 87 LGERA 278 …. 20.41 Morrison Design Partnership Pty Ltd v North Sydney Council and DirectorGeneral of the Department of Planning (2007) 159 LGERA 361 …. 19.55, 19.56 Morsink v LaTrobe City Council (2005) 142 LGERA 134 …. 13.32 Mortimer v District Council of Streaky Bay [2014] SADC 75 …. 3.46 Moses v Western Australia [2007] FCAFC 78 …. 2.12 Mosman Church of England Preparatory School v Warringah Council [2009] NSWLEC 1190 …. 8.52, 10.23 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 29 …. 10.27 Motorplex (Australia) Pty Ltd v Port Stephens Council [2007] NSWLEC 74 …. 14.84 — v — (No 2) [2007] NSWLEC 770 …. 21.42 — v — (No 3) [2008] NSWLEC 1280 …. 13.50 Mouawad v Hills Shire Council [2013] NSWLEC 165 …. 20.62, 20.65, 20.107 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 …. 3.29 MOX Plant case (Ireland v United Kingdom) (Interim Measures) Order 41 ILM 405 (2002) …. 4.18 Mt Mercer Wind Farm Pty Ltd v Moorabool Shire Council [2011] VCAT 836 …. 13.27 Mudie v Gainriver Pty Ltd (No 2) (2002) 124 LGERA 393; [2002] QCA 546 …. 21.23, 22.9 Muldrock v R [2011] HCA 39 …. 20.103 Mulhern’s Waste Oil Removal Pty Ltd v Circelli [2009] SASC 353 …. 20.107

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Environment (unreported, NSWLEC, 19 June 1992) …. 11.23 — v — (1992) 130 LGERA 443 …. 12.67, 22.64, 22.75 National Rivers Authority v Yorkshire Water Service Ltd [1995] 1 All ER 225 …. 20.34 National Trust of Australia (NSW) v Heritage Council of New South Wales [1999] NSWLEC 104 …. 19.54 National Trust of Australia (NT) v Minister for Lands, Planning and Environment (1997) 98 LGERA 258 …. 19.15, 19.35 National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592 …. 19.22, 19.35 National Trust of Victoria v VCAT [2010] VSC 430 …. 10.29 Nature Conservation Council of New South Wales Inc and Minister for Environment and Water Resources, Re [2007] AATA 1876 …. 14.6, 18.42 Nature Conservation Council of New South Wales Inc v Minister Administering the Water Management Act 2000 (2005) 137 LGERA 320; [2005] NSWCA 9 …. 18.25, 18.27, 22.79 — v Minister for Sustainable Natural Resources (2004) 133 LGERA 168 …. 22.74 Naylor v Ku-ring-gai Council [2008] NSWLEC 1380 …. 19.55 Nelson v Burwood Municipal Council (1991) 75 LGRA 39 …. 10.9, 22.44 Neowarra v Western Australia [2003] FCA 1402 …. 2.11 Nettheim v Minister for Planning (unreported, LEC (NSW), Nos 40086 and 40139, 28 September 1988) …. 21.13, 21.26 New South Wales v Commonwealth (1975) 8 ALR 1 …. 5.29, 12.58 New South Wales Sugar Milling Co-op v Environment Protection Authority (1992) 75 LGRA 320 …. 20.47 Newbury District Council v Secretary of State for the Environment [1981] AC 578 …. 7.36 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48 …. 7.49, 8.53, 11.25, 11.26, 11.27, 11.28, 11.35, 13.51, 13.54 — v — (No 2) [2010] NSWLEC 104 …. 8.52, 13.51

Newcastle City Council v Pace Farm Egg Products Pty Ltd [No 2] [2005] NSWLEC 241 …. 15.25 — v Pepperwood Ridge Pty Ltd (2004) 132 LGERA 388 …. 13.32, 20.109 — v Wescombe [2009] NSWCA 265 …. 21.22 Newcastle Port Corporation v RN Dredging BV [2013] NSWLEC 217 …. 15.102, 20.92, 20.96 Newcastle Port Corporation trading as Port Authority of New South Wales v Dudgeon; Newcastle Port Corporation trading as Port Authority of New South Wales v Svitzer Australia Pty Limited [2015] NSWLEC 139 …. 15.102 Newchurch v Minister for Aboriginal Affairs and Reconciliation [2010] SASC 245 …. 22.44 Newcrest Mining (WA) Ltd v BHP Minerals Ltd & Commonwealth (1997) 147 ALR 42 …. 4.44, 5.32, 5.34 Ngo v Fairfield City Council [2009] NSWCCA 241 …. 20.111 Nicholls v Director-General, National Parks and Wildlife Service (1994) 84 LGERA 397 …. 8.63, 8.64 — v Ely Beet Sugar Factory [1931] 2 Ch 84 …. 3.19, 3.21 Nillumbik Shire Council v Potter [2010] VCAT 669 …. 13.32 Nixon v Tynemouth Sanitary Authority (1888) 52 JP 504 …. 3.27 No 2 Pitt St Pty Ltd v Wodonga Rural City Council (1999) 107 LGERA 141 …. 19.11 No Ship Action Group Inc and Minister for Sustainability, Environment, Water, Population and Communities, Re [2010] AATA 702 …. 15.137 Noble v Cowra Shire Council (2003) 129 LGERA 120 …. 22.64 Noor Al Houda Islamic College Pty Ltd v Bankstown Airport Ltd [2005] NSWSC 20 …. 3.30, 16.26 Norbis v Norbis (1986) 161 CLR 513 …. 22.74 Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc (1996) 98 LGERA 335 …. 22.43, 22.60 North Coast Environment Council v Minister for Resources (1994) 85 LGERA 270 …. 19.5, 19.16, 19.30, 19.32, 19.37

North Queensland Conservation Council v Executive Director, Queensland Parks and Wildlife Service [2000] QSC 172 …. 19.37 — v Great Barrier Reef Marine Park Authority [2000] AATA 925 …. 12.18 North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 …. 11.24 — v MOkaichael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; 97 LGERA 433 …. 10.27 — v Moline (No 2) [2008] NSWLEC 169 …. 20.52 Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2007] SAERDC 50 …. 13.32 — v — [2008] SASC 57 …. 17.55, 17.57, 18.57 Northcompass Inc v Hornsby Shire Council [1996] NSWLEC 213 …. 8.67 Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419 …. 6.13, 6.15, 22.46, 22.47, 22.49, 22.56 — v — [2014] FCA 216 …. 21.27 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 …. 20.52 Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24; [2008] HCA 29 …. 2.15, 3.8 Northwest Residential Pty Ltd v Minister for Planning [2009] NSWLEC 1065 …. 10.3, 14.91, 14.98 Norvill v Chapman (1995) 133 ALR 226 …. 22.44, 22.77 — v Stokes (2006) 153 LGERA 278 …. 20.30 Notaras v Waverley Council [2007] NSWCA 333 …. 22.65 Novara Crescent Pty Ltd v Sutherland Shire Council (2004) 136 LGERA 135 …. 13.34 NSW Land and Housing Corp v Campbelltown City Council (2002) 126 LGERA 348 …. 10.6, 11.35, 11.88, 14.98, 22.64 Nuclear Tests case (Australia v France) (1973) ICJ Reports 99 …. 4.17, 4.19, 4.24 Nuclear Tests case (New Zealand v France) (1974) ICJ Reports 253 …. 4.17, 4.19, 4.24

O

Oberon Council v Australian Game Meats Pty Ltd [2002] NSWLEC 96 …. 20.4, 20.6 Ogle v Strickland (1987) 71 ALR 41 …. 19.15, 19.38 O’Halloran and Australian Fisheries Management Authority, Re [2002] AATA 160 …. 18.45 Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 …. 20.120 Olbers Co Ltd v Commonwealth of Australia [2004] FCAFC 262 …. 20.120 — v — [2005] HCA Trans 228 …. 4.26, 20.120 Olofsson v Minister for Primary Industries [2011] NSWLEC 137 …. 21.37 Onesteel Manufacturing Pty Ltd v Environment Protection Authority (2005) 92 SASR 67 …. 19.57 — v Whyalla Red Dust Action Group Inc (2006) 145 LGERA 415 …. 19.36 Onus v Alcoa of Australia Ltd (1981) 36 ALR 425 …. 19.1, 19.4, 19.7, 19.8, 19.9, 19.15, 19.20 Oposa v Secretary of State of the Department of Environment and Natural Resources (1994) 33 ILM 193 …. 8.76 Optus Networks Pty Ltd v Rockdale City Council (Optus) (2005) 130 LGERA 429 …. 10.16 Oshlack v Iron Gates Pty Ltd (1997) 130 LGERA 189 …. 10.16 — v — (No 2) (1997) 95 LGERA 55 …. 21.38 — v Richmond River Council (1998) 96 LGERA 173; [1998] HCA 11 …. 21.23, 21.25, 21.27, 21.29, 21.33, 22.9 — v Richmond River Shire Council (1993) 82 LGERA 222 …. 7.11, 11.26 — v — (1994) 82 LGERA 236 …. 21.26 — v Rous Water [2011] NSWLEC 73 …. 10.18, 11.21, 11.23 — v — (No 2) [2012] NSWLEC 111 …. 10.18 Ostrowski v Palmer [2004] HCA 30 …. 20.80, 20.81 Outback Leather Pty Ltd v Director-General, National Parks and Wildlife Service (1996) 92 LGERA 319 …. 2.70, 22.18 Overland Corner Station Pty Ltd v Gould [2010] SASC 61 …. 13.10 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (Wagon

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P Packham v Minister for Environment (1993) 80 LGERA 205 …. 7.21, 12.74, 22.53 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 …. 22.21 Page v Manningham City Council [2010] VSC 267 …. 20.3 Pallaras v Downer EDI Works Pty Ltd [2008] SAERDC 72 …. 15.27, 20.107 Palos Verdes Estates Pty Ltd v Carbon (1991) 72 LGRA 414 …. 15.21, 15.26 Paltridge v District Council of Grant [2011] SAERDC 23 …. 8.56, 17.57 Pape v Federal Commissioner of Taxation [2009] HCA 23 …. 5.27 Paric v John Holland Constructions (1978) 62 ALR 85 …. 8.58 Parker v Minister for Sustainability, Environment, Water, Population and Communities [2011] FCA 1325 …. 14.5 — v — (2012) 205 FCR 415; [2012] FCAFC 94 …. 8.67, 14.5, 22.17 Parkes v Byron Shire Council [2004] NSWLEC 92 …. 17.57 Parks and Playgrounds Movement Inc v Newcastle City Council (2010) 179 LGERA 346; [2010] NSWLEC 231 …. 7.16, 7.19, 8.40, 11.21, 11.22, 21.30, 21.32, 21.33, 22.49 Parramatta City Council v Hale (1982) 47 LGRA 319 …. 10.16, 20.44, 22.57, 22.63, 22.64, 22.68, 22.79 Partland v City of St Kilda (1989) 41 APA 178 …. 19.23 Paterson v Minister for the Environment and Heritage [2004] FMCA 924 …. 19.44 Path Line Australia Pty Ltd v Environment Protection Authority [2002] SASC 37 …. 11.60, 11.65

Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 …. 21.6 Paul v Goulburn Murray Rural Water Corporation [2009] VCAT 970 …. 19.27 Peden Pty Ltd v Bortolazzo [2006] QCA 350 …. 3.20 Pennings v Selby (1997) 94 LGERA 1 …. 12.55 — v Vlak [2005] WASC 107 …. 14.61 Pennington v McGovern (1987) 45 SASR 27 …. 2.33 Penrith City Council v Re-Gen Industries Pty Ltd (2000) 107 LGERA 331 …. 13.32, 20.93, 20.96 People of the State of California v General Motors Corp (2007) WL 2726871 (N D Cal) …. 3.24 Perder Investments Pty Ltd v Elmer (1991) 23 ALD 545 …. 22.76 — v Lightowler (1990) 101 ALR 151 …. 22.76 Perorad Care Pty Ltd v Frankston City Council (2004) 140 LGERA 112 …. 22.3 Perre v Apand (1999) 198 CLR 180 …. 3.31 Perry v Attorney-General (NT) [2014] NTSC 17 …. 2.65 — v Hepburn Shire Council (2007) 154 LGERA 182; [2007] VCAT 1309 …. 9.38, 17.56 Pfeiler v Native Vegetation Council [2012] SASC 105 …. 22.30 Pfizer v European Commission T-13/99 …. 8.74 Phelps v Development Consent Authority [2012] NTCA 02 …. 10.3, 22.55 — v Western Mining Corporation Ltd (1978) 20 ALR 183 …. 19.38 Phillips v Greater Shepparton City Council (Red Dot) [2005] VCAT 653 …. 21.16 — v Hepburn Shire Council [2009] VCAT 351 …. 22.73 Phosphate Co-operative Co of Australia Ltd v Environment Protection Authority (1977) 138 CLR 134 …. 15.22, 15.70, 15.71 Phosphate Resources Ltd v Minister for the Environment, Heritage and the

Arts (No 2) (2008) 162 LGERA 154 …. 6.61, 6.62, 14.18, 22.22, 22.60, 22.64, 22.77 Pidun v Dac & Struck & Minister of Agriculture, Food & Fisheries [2004] SAERDC 10 …. 8.53 Pipi Holdings Pty Ltd v City of Caloundra (2000) 111 LGERA 117 …. 22.42 Pitt v Environment Resources and Development Court (1995) 66 SASR 274 …. 19.57 Pittwater Council v A1 Professional Tree Recycling Pty Ltd [2008] NSWLEC 325 …. 22.11 — v Minister for Planning [2011] NSWLEC 162 …. 22.56, 22.56 — v Scahill [2009] NSWLEC 12 …. 13.34 Piva v Brinkworth (1992) 59 SASR 92 …. 13.12, 20.96 Plath v Chaffey [2009] NSWLEC 196 …. 14.38 — v Fletcher [2007] NSWLEC 596 …. 14.81 — v Glover [2010] NSWLEC 119 …. 12.76 — v Hunter Valley Property Management Pty Limited [2010] NSWLEC 264 …. 8.29 — v Knox [2007] NSWLEC 670 …. 12.76 — v O’Neill [2007] NSWLEC 553 …. 20.118 — v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 …. 7.29, 8.29, 14.81, 20.100, 20.106 — v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 …. 12.76 Plumb v Penrith City Council [2002] NSWLEC 223 …. 7.11, 11.25, 11.26, 11.35, 14.84 — v — (2003) 126 LGERA 109 …. 21.33 Pole v Stonnington City Council [1999] VCAT 13 …. 10.70 Port MacDonnell Professional Fisherman’s Association Inc v South Australia (1989) 88 ALR 12 …. 5.30 Port Stephens Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226 …. 7.12 — v Sansom (2007) 156 LGERA 125 …. 22.9, 22.10

— v SS and LM Johnston Pty Ltd (2007) 152 LGERA 193 …. 13.1, 13.20, 13.32 Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 …. 8.31, 8.63 Port Stephens Shire Council v Booth (2005) 148 LGERA 351 …. 3.43 — v Tellamist Pty Ltd (2004) 135 LGERA 98 …. 3.19, 21.21 Power v Sarina Shire Council [1999] QPEC 56 …. 18.78 Premier Building and Consulting Pty Ltd v Spotless Group Ltd [2007] VSC 377 …. 3.36, 16.25, 16.26, 16.43 Pride of Derby Angling Association v British Celanese Ltd [1952] 1 All ER 1326 …. 3.27 — v — [1953] Ch 149 …. 3.19, 3.21, 3.53 Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 …. 11.14, 11.87, 11.89 — v — (1984) 53 LGRA 160 …. 11.87, 11.88, 11.106 Printz v Glenelg Shire Council [2010] VCAT 1975 …. 17.57 Proctor v Melton Shire Council [2003] VCAT 1520 …. 19.27 Professional Fishers Association Inc v Minister for Fisheries (2002) 120 LGERA 61 …. 11.23, 22.47 Progress & Securities Building Pty Ltd v Burwood Council (No 2) (2008) 158 LGERA 102 …. 10.48 Progress & Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236 …. 10.27 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 …. 7.12, 22.79 Proprietors of Strata Plan No 14198 v Cowell (1991) Aust Torts Reports 81083 …. 3.20 Protean (Holdings) Ltd v Environment Protection Authority [1977] VR 51 …. 2.32, 15.76 Proudman v Dayman (1941) 67 CLR 536 …. 20.76 Providence Projects Pty Ltd v Gosford City Council (2006) 147 LGERA 274; [2006] NSWLEC 52 …. 8.66, 8.71, 14.98 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 ….

22.21 Pulp Mills case (Argentina v Uruguay) [2006] ICJ Reports 113 …. 4.16, 4.21 Pumpa v Goulburn-Murray Rural Water Corporation [2010] VSC 169 …. 3.46 Puntoriero v Water Administration Ministerial Corp (1999) 104 LGERA 419 …. 3.29, 3.30, 3.41, 3.42 Pupfan Pty Ltd v South Australia (2003) 131 LGERA 1; [2003] SASC 283 …. 11.60, 11.62

Q Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64 …. 20.123 Queensland v Commonwealth (1988) 77 ALR 291; 62 ALJR 143 …. 2.70, 5.14, 21.10 — v — (1989) 167 CLR 232 …. 22.18 Queensland Conservation Council Inc v Minister for Environment and Heritage [2003] FCA 1463 …. 19.44 — v Xstrata Coal Queensland Pty Ltd (2007) 155 LGERA 322; [2007] QCA 338 …. 17.55, 22.39 Queensland Construction Materials Pty Ltd v Redland City Council [2010] QCA 182 …. 10.34 — v — [2010] QCA 248 …. 21.25 Queensland Heritage Council v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (2000) 110 LGERA 193 …. 5.46, 5.47 Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248 …. 3.21 Quinn v Regional Council of Goyder [2010] SAERDC 63 …. 17.57

R R v Amoedo and Dominguez (2006) 4 DCLR (NSW) 305 …. 20.120 — v (Beer (t/as Hammer Trout Farm) v Hampshire Farmers’ Markets Ltd [2004] 1 WLR 233 …. 22.17 — v Boyle (District Court of Queensland, 17 December 2004) …. 20.99 — v Caltex Tanker Co (Aust) (unreported, County Court, Victoria, O’Shea J,

18 June 1993) …. 20.41 — v Carroll [2008] NSWCCA 218 …. 20.105 — v Chief Constable of Sussex; Ex parte International Trader’s Ferry Ltd [1998] UKHL 40 …. 22.72 — v City of Salisbury; Ex parte Burns Philp (1986) 60 LGRA 40 …. 19.11, 19.23 — v City of Sault Ste Marie (1978) 85 DLR (3d) 161 …. 20.71 — v Crabbe (1985) 156 CLR 464 …. 20.46 — v Davis; Ex parte Calvary Hospital Hobart Inc (1999) 103 LGERA 169 …. 22.38 — v Dempsey [2002] QCA 45 …. 20.98, 20.106 — v District Council of Berri (1984) 51 LGRA 409 …. 22.63 — v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 …. 22.27, 22.30 — v Mattrim Marine (District Court of Queensland, 20 June 2005) …. 15.126 — v Mayor of London ex parte Westminster City Council [2002] EWHC 2440 …. 2.46 — v Milford Haven Port Authority [2000] All ER (D) 352 …. 20.39 — v Moore [2001] QCA 431 …. 15.27, 15.28, 20.61, 20.99, 20.105, 20.113 — v Murphy (1990) 71 LGRA 1; 64 ALJR 593 …. 7.14, 11.1 — v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213 …. 22.35 — v Phillips (1970) 125 CLR 93 …. 5.48 — v Resource Management and Planning Appeal Tribunal; Ex parte North West Rendering Pty Ltd (2005) 138 LGERA 412 …. 21.20, 22.55 — v Resource Planning and Development Commission; Ex parte Aquatas Pty Ltd (1998) 100 LGERA 1 …. 8.45 — v Robison (1992) 62 A Crim R 374 …. 14.4 — v Ryan Benjamin Castle (Bone J, Local Court, Moruya, 8 July 2011) …. 20.82 — v Schembera [2008] QCA 266 …. 20.6, 20.88, 20.107 — v Secretary of State for Trade and Industry; Ex parte Duddridge [1996] 2

CMLR 361 …. 8.64 — v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 …. 22.63 — v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 …. 22.17 — v Ward; Ex parte Brambles Holdings Ltd (1983) 34 SASR 269 …. 19.21 — v West Coast Council; Ex parte Strahan Motor Inn (1995) 87 LGERA 383 …. 22.42 R (on the application of Edwards) v Environment Agency (No 2) [2007] Env LR 9 …. 22.35 R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] Env LR 29 …. 22.34, 22.35 R and S Krulow v Glamorgan Spring Bay Council [2011] TASRMPAT 147 …. 20.4, 22.49 Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPEC 26 …. 17.57, 18.56 Rainbow Warrior (New Zealand v France) (1990) 82 ILR 500 …. 4.5 Rajendran v Tonkin [2004] VSCA 43 …. 22.60 Rajski v Computer Manufacturers and Design Pty Ltd (1983) 2 NSWLR 443 …. 21.42 Ramholdt v Planning Panels Victoria (2004) 140 LGERA 273 …. 22.40 Randwick City Council v Fuller (1996) 90 LGERA 380 …. 21.6 Randwick Municipal Council v Henderson (1930) 10 LGR 18 …. 3.21 — v Manousaki (1988) 66 LGRA 330 …. 10.16, 22.67 — v Woodward (1983) 50 LGRA 55 …. 11.14 Rao v Canterbury City Council (2000) 112 LGERA 360 …. 13.33 Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88 …. 10.9, 22.40 Rashleigh v Environment Protection Authority (2005) 138 LGERA 310; [2005] ACTSC 18 …. 2.30, 2.31, 8.25 Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791 …. 22.11 Ray Taylor Investments Pty Ltd v Kingborough Council [2012] TASRMPAT 014 …. 13.42

Read v Croydon Corporation [1938] 4 All ER 631 …. 19.8 Redland Shire Council v Bushcliff Pty Ltd (1996) 93 LGERA 107 …. 22.20 Reed v Qcoal Sonoma Pty Ltd [2014] QLAC 8 …. 22.9 Reef Cove Resort Pty Ltd v Cairns City Council [2007] QPEC 77 …. 11.43, 13.24, 18.56 Reeve v Hume City Council [2009] VCAT 65 …. 13.27, 13.38, 13.52 Reformulated Gasoline case (Brazil v USA) 35 ILM 603 (1996) …. 4.33, 4.36 Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 …. 22.40 Regional Land Development Corporation No 1 Pty Ltd v Banana Shire Council [2009] QCA 140 …. 22.47 Registrar, Environment, Resources & Development Court v Wandel (No 2) [2014] SAERDC 13 …. 20.122 Reid’s Farms Pty Ltd v Murray Shire Council [2009] NSWLEC 171 …. 21.41 Rentiers Pty Ltd v Native Vegetation Authority (1990) 71 LGRA 266 …. 13.13 RES Southern Cross v Minister for Planning and Taralga Landscape Guardians Inc [2008] NSWLEC 1333 …. 11.88 Reservilt Pty Ltd v Maroochy Shire Council (2002) 123 LGERA 233 …. 11.42 Residential Tenancies Tribunal of NSW, Re; Ex parte Defence Housing Authority (1997) 71 ALJR 1254 …. 5.53 Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; [2006] NSWCA 323 …. 7.13, 10.20, 11.18, 11.19, 14.94, 21.34, 22.47, 22.78 Resourceco Pty Ltd v Environment Protection Authority [2007] SAERDC 31 …. 16.16 — v Harvey (2006) 154 LGERA 37 …. 20.110 — v — [2007] SASC 38 …. 20.106 Richard G Bejah Insurance & Financial Services Pty Ltd v Manning [2002] TASSC 36 …. 18.58, 22.55 Richardson v Forestry Commission (1987) 73 ALR 589 …. 21.7, 21.10 — v — [1988] HCA 10 …. 5.12, 5.15 Richmond River Council v Oshlack (1996) 91 LGERA 99 …. 21.25

Richter v Risby [1987] Tas R 36 …. 2.40 Ridge v Midland Railway Co (1888) 53 JP 55 …. 3.21 Rivers SOS Inc v Minister for Planning (2009) 178 LGERA 347; [2009] NSWLEC 213 …. 13.54, 22.34, 22.56 Roach v Pittwater Council [2007] NSWLEC 607 …. 13.53, 14.98 Robert v City of Canada Bay Council [2008] NSWLEC 1406 …. 10.48 Roberts v Blue Mountains City Council [2012] NSWLEC 2 …. 10.16 Robinson v Western Australian Museum (1977) 138 CLR 327 …. 19.3, 19.7 Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 …. 3.15, 3.20, 3.21 Rochford RDC v Port of London Authority [1914] 2 KB 916 …. 20.49 Rockhampton Regional Council v GKI Resort Pty Ltd [2013] QPEC 40 …. 10.36 Roe v Director General, Dept of Environment and Conservation (WA) [2011] WASCA 57 …. 10.42, 11.69 Ron C Dunkley & Associates v Blue Mountains City Council [2009] NSWLEC 1396 …. 10.23 Ronchi v Wellington Shire Council [2009] VCAT 1206 …. 17.57 Rosemount Estates Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 1 …. 7.28 Ross, Re (1913) 23 LCC 52 …. 13.63 Ross v State Rail Authority (NSW) (Unreported, LEC (NSW), No 40200, 1987) …. 21.13 Rosser v New South Wales Department of Primary Industries (2008) 157 LGERA 418 …. 20.65 Rouse v Minister of Fisheries [2003] NSWSC 700 …. 18.49 Rowe v Lindner [2006] SASC 176 …. 7.18, 7.29, 8.23, 8.39, 8.56, 9.4, 9.42, 18.15, 22.67 — v — (No 2) [2007] SASC 189 …. 8.66, 8.71 Rowley v Caloundra City Council [2008] QPEC 99 …. 13.32 Royal Automobile Club of Australia v Sydney City Council (1991) 74 LGRA

121 …. 7.18 Rozen v Macedon Ranges Shire Council [2007] VCAT 1814 …. 8.68 — v — [2009] VCAT 2746 …. 8.57, 8.67, 18.19 — v — [2010] VSC 583 …. 8.66, 8.71, 9.69, 22.57 Rue & Fanna v Leavy [2005] QDC 110 …. 14.46 Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106 …. 13.19 Rundle v Tweed Shire Council (unreported, LEC (NSW), 30 March 1989, No 40241) …. 21.13 — v — (1989) 68 LGRA 308 …. 11.22 Rushcutters Investments Pty Ltd v Water Board of New South Wales (1989) 68 LGRA 128 …. 3.16 Russell v Pennings (2001) 113 LGERA 216 …. 14.61 Ryan v Great Lakes Council; Graham Barclay Oysters Pty Ltd v Ryan (1999) 102 LGERA 123; [2002] HCA 54 …. 3.29, 3.32, 15.30, 19.51 Ryde City Council v Calleija (1998) 99 LGERA 360 …. 20.96 — v Echt (2000) 107 LGERA 317 …. 22.73

S Saeed v Minister for Immigration and Citizenship [2010] HCA 23 …. 2.67, 7.13 Salmal Constructions Pty Ltd v Richards (1998) 99 LGERA 423 …. 22.59 Sames v District Council of Mount Barker (2004) 132 LGERA 187 …. 9.30 Sampi v Western Australia [2005] FCA 777 …. 2.11 Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council (2006) 153 LGERA 355 …. 10.26, 10.47, 10.48, 10.51, 11.36, 13.45 Save Little Beach Manly Foreshore Inc v Manly Council [2013] NSWLEC 155 …. 21.30, 21.40, 21.39, 21.41, 21.42 Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207 …. 21.10, 21.14, 22.66 Save Our Street Inc v Settree (2006) 149 LGERA 30; [2006] NSWLEC 570 ….

2.66, 7.12, 22.71, 22.72 Save the Ridge Inc v Australian Capital Territory (2004) 133 LGERA 188 …. 7.18, 19.37 — v Commonwealth (2005) 142 LGERA 18; [2005] FCAFC 203 …. 5.50, 6.6, 6.7 — v National Capital Authority (2004) 134 LGERA 300 …. 7.18 Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1996) 92 LGERA 283 …. 22.53 — v — (1997) 95 LGERA 33 …. 9.48, 22.18, 22.31, 22.34, 22.50 — v — (1998) 105 LGERA 254 …. 21.27, 21.33 Schaap v Tasmanian Water and Sewerage Corporation (North West Region) Pty Ltd [2013] TASSC 17 …. 7.18 Schadband v Murrindindi Shire Council [2005] VCAT 1039 …. 19.27 Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 …. 11.14, 11.87, 11.88 Scharer v New South Wales [2001] NSWCA 360 …. 12.74 Schinkel v Bass Coast Shire Council [2009] VCAT 2644 …. 19.27 Schneiders v Queensland [2001] FCA 553 …. 12.14, 21.10 Schwarzenberg v Commonwealth [2009] VCC 1513 …. 14.5 Schwennesen v Minister for Environment and Resource Management [2010] QSC 81 …. 2.58 Scott-Whitehead v National Coal Board (1987) 53 P&CR 263 …. 3.29 Scriven v Sargent [2014] QCA 133 …. 2.22 Scurr v Brisbane City Council (No 5) (1973) 133 CLR 242; 28 LGRA 50 …. 7.54, 10.9, 22.44 Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 …. 2.59 Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2014] FCA 117 …. 8.68, 18.41, 22.17, 22.26, 22.61 Seaton v Mosman Municipal Council (1996) 93 LGERA 1 …. 21.17

Secretary of Dept of Primary Industry v Collins (1992) 106 ALR 351 …. 9.21 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1997] AC 1014 …. 22.72 Seljanovski v Sutherland Shire Council [2003] NSWLEC 234 …. 9.73 Severn Shire Council v Water Resources Commission (1982) 47 LGRA 257 …. 11.17 Sgualdino v Woodlands Enterprises Pty Ltd [2009] QPEC 30 …. 11.42 Shannon v Dalby Town Council [2004] QPEC 62 …. 8.68 Shannon Pacific v Minister for Planning [2007] NSWLEC 669 …. 10.3 Sharpe v Town of Vincent [2010] WASC 391 …. 22.67 Sharples v Minister for Local Government [2008] NSWLEC 67 …. 21.41, 21.42 — v — [2008] NSWLEC 328 …. 22.64 — v — [2010] NSWCA 36 …. 22.79 SHCAG Pty Ltd v Hume Coal Pty Ltd [2015] NSWLEC 122 …. 18.19 — v Minister for Planning and Infrastructure [2013] NSWLEC 1032 …. 8.66 Sheehan v State Rail Authority (NSW) [2009] NSWCA 261 …. 7.15 Shellharbour City Council v Minister for Planning [2011] NSWCA 195 …. 22.11 Sherras v De Rutzen [1895] 1 QB 918 …. 20.22 Shire of Augusta-Margaret River v Gray [2005] WASCA 227 …. 19.28, 19.57 Shire of Brookton v Water Corporation (2003) 133 LGERA 119 …. 3.35 Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 …. 21.9 — v South Coast Concrete Crushing and Recycling Pty Ltd [2010] NSWLEC 80 …. 21.30 Shrimp/Turtle case 33 ILM 118 (1999) …. 4.5, 4.34, 4.36 Sidhom v Robinson (2007) 154 LGERA 169 …. 20.112 Sidney Harrison Pty Ltd v City of Tea Tree Gully (No 2) (2001) 112 LGERA 327 …. 22.22, 22.52

Sierra Club v Morton 405 US 727 (1972) …. 2.47 Silva v Ku-ring-gai Council [2009] NSWLEC 1060 …. 18.18 Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60 …. 14.98 Simes v Minister for Environment and Conservation [2004] SASC 84 …. 2.28 Simmons v Esk Shire Council [2006] QPEC 101 …. 8.67 Simpson v Ballarat City Council [2012] VCAT 133 …. 7.21 — v — [2012] VCAT 1399 …. 8.57, 8.67 — v Department of Environment and Conservation [2011] WASC 206 …. 14.60 — v Office of Environment and Heritage [2014] NSWLEC 34 …. 14.39, 20.107 — v Wakool Shire Council [2012] NSWLEC 163 …. 10.9 Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473; 5 ALR 513 …. 19.17, 19.44, 21.18 — v Murphyores Inc Pty Ltd [1978] Qd R 239 …. 19.18 Sinnathamby v Purcell [2002] QPEC 65 …. 21.23 Sisters Wind Farm Pty Ltd v Moyne Shire Council [2010] VCAT 719 …. 17.57, 18.19 — v Moyne Shire Council [2012] VSC 324 …. 22.7 SITA Australia Pty Ltd v Greater Dandenong City Council (2007) 150 LGERA 266; [2007] VCAT 156 …. 7.17, 16.17 SJ Connelly CPP Pty Ltd v Ballina Shire Council [2010] NSWLEC 128 …. 11.18 Skye Environmental Services Pty Ltd v Frankston City Council [2004] VCAT 682 …. 8.67 Slack-Smith v Director General Department of Land and Water Conservation (2003) 132 LGERA 1 …. 15.91, 20.5 SLS Property Group Pty Ltd v Townsville City Council [2009] QCA 380 …. 22.47 SM Wicks v Tasman Council and Peacock Darcey & Anderson Pty Ltd; G Cousins v Tasman Council and Peacock Darcey & Anderson Pty Ltd; P

Leishman-Fenerty v Tasman Council and Peacock Darcey & Anderson Pty Ltd [2008] TASRMPAT 117 …. 18.58 Small v Woollahra Municipal Council [2008] NSWLEC 1239 …. 10.23 Smith v Hobsons Bay City Council [2010] VCAT 668 …. 2.46 Smith and West Australian Development Corporation, Re; Ex parte Rundle (1991) 5 WAR 295 …. 19.3 Smyth v Nambucca Shire Council (1999) 105 LGERA 65 …. 14.95 Smythe v Shire of Arapiles (1984) 16 APA 85 …. 3.20, 3.24, 3.54 Snowy Hydro Ltd v Metroll Victoria Pty Ltd [2007] VSC 188 …. 21.15 Snowy River Alliance Inc v Water Administration Ministerial Corporation [2011] NSWSC 652 …. 21.31 — v — (No 2) [2011] NSWSC 1132 …. 21.31, 21.33 Sol Theo v Caboolture Shire Council (2001) QPELR 101 …. 8.57 Somerville v Dalby (1990) 69 LGRA 422 …. 22.34 Sorell Council v Tasmania (2004) 134 LGERA 59; [2004] TASSC 46 …. 9.41, 11.81 South Australia v O’Shea (1987) 163 CLR 378 …. 22.17, 22.38 — v Simionato [2005] SASC 412 …. 3.21, 3.35 — v Slipper (2004) 137 LGERA 374 …. 22.38, 22.40, 22.70 — v Tanner (1989) 166 CLR 161; [1989] HCA 3 …. 9.16, 22.53 South Australian Potato Company Pty Ltd v Minister for Sustainability, Environment and Conservation (No 2) [2014] SAERDC 50 …. 7.32 South Australian River Fishery Association v State of South Australia [2003] SASC 174 …. 2.33, 3.3 — v — [2003] SASC 174 …. 2.33 South East Forest Rescue Inc v Bega Valley Shire Council [2011] NSWLEC 250 …. 8.27, 22.64, 22.77 South East Water Ltd v Transpacific Cleanaway Pty Ltd [2010] VSC 46 …. 3.46 South Sydney City Council v Paliflex Pty Ltd (2003) 129 LGERA 384 …. 5.46 Southern Bluefin Tuna cases Australia and New Zealand v Japan 39 ILM 1359

(2000) …. 4.23, 4.36 Southern Cross Marine Culture Pty Ltd v Sorell Council [2006] TASRMPAT 250 …. 18.58 Southern Properties (WA) Pty Ltd v Executive Director, Department of Conservation and Land Management [2012] WASCA 79 …. 3.37 Southon v Beaumont [2008] NSWLEC 12 …. 20.5 — v Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292 …. 20.124 Southport Corporation v Esso Petroleum Co Ltd [1954] 2 All ER 561 …. 3.19 South-West Forest Defence Foundation Inc v Department of Conservation and Land Management (No 2) (1998) 72 ALJR 1008; [1998] HCA 35 …. 2.39, 21.25, 21.27 — v Lands and Forest Commission (1995) 86 LGERA 365 …. 11.70, 12.67, 21.20 Spencer v Australian Capital Territory [2007] NSWSC 303 …. 3.20 — v Commonwealth of Australia [2008] FCA 1256 …. 5.22, 5.35, 5.59, 13.4, 17.46 — v — [2009] FCAFC 38 …. 5.35, 13.4 — v — (2010) 241 CLR 118 …. 5.35, 13.4 — v — [2015] FCA 754 …. 5.34, 5.37, 13.4 — v New South Wales Minister for Climate Change, Environment and Water [2008] NSWSC 1059 …. 2.22, 13.4 Spreitzer v R (1991) 58 A Crim R 114 …. 14.4 Springer v Woollahra Municipal Council (2000) 108 LGERA 392 …. 9.43 Springhall v Kirner [1988] VR 159 …. 2.32 St Helen’s Area Landcare and Coastcare Group Inc v Break O’Day Council (2007) 151 LGERA 421; [2007] TASSC 15 …. 7.13, 8.56, 9.40, 18.58, 22.59 St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642 …. 3.21 Stanton Dahl Architects v Penrith City Council [2009] NSWLEC 1204 …. 13.46 Starkey v South Australia [2011] SASCFC 164 …. 21.17, 21.18, 21.20, 22.35

Start v Pyrenees Shire Council [2006] VCAT 2599 …. 9.38 State Administrative Tribunal, Re; Ex parte McCourt [2007] WASCA 125 …. 19.54 State of North Carolina v Tennessee Valley Authority 615 F3d 291 (4th Cir 2010) …. 17.52 State of Victoria v Commonwealth of Australia (1996) 187 CLR 416 …. 5.13 State Planning Commission (WA) and Beggs; Ex parte Helena Valley/Boya Association Inc (1990) 2 WAR 422 …. 19.10 State Pollution Control Commission v Australian Iron & Steel Ltd (1992) 74 LGRA 387 …. 20.52 — v Blue Mountains City Council (1991) 72 LGRA 345 …. 20.71, 20.72 — v — (No 2) (1991) 73 LGRA 337 …. 20.51 — v Broken Hill Pty Co Ltd (No 1) (1991) 74 LGRA 351 …. 20.85 — v Bulli Trotting Club (1983) 51 LGRA 336 …. 15.93 — v Caltex Refining Co Pty Ltd (1991) 72 LGRA 212 …. 20.66 — v Hunt (1990) 72 LGRA 316 …. 20.71 — v Kelly R V (1991) 5 ACSR 607 …. 20.72, 20.88 — v New South Wales Sugar Milling Co-operative Ltd (1991) 73 LGRA 86 …. 20.71 State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721 …. 20.77, 20.78 Stephen Garrett v Dennis Charles Williams [2006] NSWLEC 785 …. 14.81 Stewart v City of Belmont [2013] WASC 366 …. 22.46 Stockdale v Alesios [1999] VSCA 128 …. 18.48 Stockwell v Victoria [2001] VSC 497 …. 3.20 Stonnington City Council v Blue Emporium Pty Ltd [2003] VCAT 1954 …. 21.15 — v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505 …. 10.70, 10.71 Stow v Mineral Holdings (1977) 14 ALR 497 …. 19.4 Strasburger Enterprises (Properties) Pty Ltd v Gold Coast City Council [2009]

QPEC 103 …. 11.54 Sunbay Developments Pty Ltd and Shire of Kalamund, Re (2006) 150 LGERA 116 …. 10.9 Sunshine Coast Regional Council v Parklands Blue Metal Pty Ltd [2015] QCA 91 …. 2.70 Sustainable Fishing and Tourism Inc v Minister for Fisheries (2000) 106 LGERA 322 …. 11.23, 22.47 Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 …. 10.4 Sweetwater Action Group Inc v Minister for Planning [2011] NSWLEC 106 …. 16.30, 22.60 Swift Australia Pty Ltd v Director of Environment Protection Authority [2011] TASRMPAT 064 …. 20.4 Sydney City Council v Paul Dainty Corp Pty Ltd [1984] 3 NSWLR 104 …. 7.19 Symons Nominees Pty Ltd v Roads and Traffic Authority of New South Wales [1991] Aust Torts Rep 68,675 …. 3.44 Szulc v Chief Executive Officer, Department of Environment and Conservation (No 4) [2012] WASCA 143 …. 13.30

T Taip v East Gippsland Shire Council [2010] VCAT 1222 …. 17.57 Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59 …. 2.71, 8.78, 9.38, 17.39, 17.56, 17.57 Tarkine National Coalition Incorporated v Alex Schaap Supreme Court of Tasmania file 49/2014 …. 19.33 — v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694 …. 6.64 — v Minister for the Environment [2014] FCA 468 …. 6.21, 6.27, 6.62, 6.68, 8.54 — v — [2015] FCAFC 89 …. 6.62 Tasmanian Aboriginal Centre Inc v Secretary, Department of Primary Industries, Parks, Water and Environment [2014] FCA 1443 …. 21.10 Tasmanian Conservation Trust Inc v Minister for Resources (No 2) (1995) 85

LGERA 296 …. 6.2, 19.32 — v Minister for Resources & Gunns (No 2) (1996) 90 LGERA 106 …. 6.2, 6.15, 22.20 — v Tasmania (2000) 109 LGERA 219 …. 7.21, 9.18, 12.67 Tasmanian Heritage Council v Cita Property Group Pty Ltd [2010] TASSC 68 …. 22.79 Tasmanian Water and Sewerage Corporation (Northern Region) Pty Ltd v Tasmanian Planning Commission Administering the National Parks & Wildlife Act 1974 (NSW) (Blue Cow case) [2013] TASSC 15 …. 22.34, 22.37 Tasmanian Wilderness Society Inc v Fraser (1982) 153 CLR 270; 42 ALR 51 …. 5.12, 6.2, 19.13 Tatarelli v Cicolella [2007] SASC 265 …. 20.112 Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509; 1 All ER 1159 …. 3.24, 3.25 Tauschke v East Gippsland Shire Council [2009] VCAT 2231 …. 17.57 Taylor v Lanyon [2006] QDC 321 …. 20.112 — v Port Macquarie-Hastings Council [2010] NSWLEC 113 …. 13.47 Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806 …. 21.9, 21.10, 21.13, 21.15 Telstra Corporation v Hepburn Shire Council [2005] VCAT 1099 …. 9.38 — v Hornsby Shire Council (2006) 146 LGERA 10; [2006] NSWLEC 133 …. 4.45, 8.29, 8.31, 8.56, 8.57, 8.59, 8.66, 8.68, 8.71, 8.73, 8.74, 11.29 — v Pine Rivers Shire Council [2001] QPELR 350 …. 8.65, 8.74 Telstra Corp Ltd and Shire of Murray [2009] WASAT 117 …. 8.66, 8.71 Teoh v Hunters Hill Council [2008] NSWLEC 263 …. 17.56 — v — (No 3) [2009] NSWLEC 121 …. 21.26 Terminals Pty Ltd v Greater Geelong City Council [2005] VCAT 1988 …. 8.68 — v — [2011] VCAT 1209 …. 10.70 Terminate Tulla v Environment Protection Authority [2007] VCAT 2332 …. 21.6, 21.16

Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 …. 22.67 Terranora Group Management Pty Ltd v Director-General, Office of Environment and Heritage [2013] NSWLEC 198 …. 13.21, 20.5, 22.49 Terry Street Pty Ltd v Leichhardt Municipal Council [2007] NSWLEC 131 …. 16.28 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 …. 20.55, 20.56 Tetley v Chitty [1986] 1 All ER 663 …. 3.21 Tetra Pak Manufacturing v Challenger Life Nominees [2013] NSWSC 349 …. 16.26 Thackeray v Shire of South Gippsland [2001] VCAT 739 …. 17.57 — v — [2001] VCAT 922 …. 11.58 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 156 LGERA 150 …. 22.9, 22.10 Thiess Services Pty Ltd v Mirvac Queensland Pty Ltd [2005] QSC 364 …. 16.36 — v — [2006] QCA 50 …. 16.36 Thirteenth Beach Coast Watch Inc v Environment Protection Authority [2009] VSC 53 …. 15.88, 17.56, 19.22, 19.25 Thompson v Johnson & Johnson Pty Ltd [1991] 2 VR 449 …. 3.29 — v Smiths Shiprepairers (North Shields) Ltd [1984] 1 All ER 881 …. 3.29 Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 …. 19.10 Thorneloe v Filipowski (2001) 116 LGERA 56 …. 20.112 Thornton v Adelaide Hills Council (2006) 151 LGERA 1 …. 1.24, 11.3, 14.98 Tickner v Bropho (1993) 114 ALR 409 …. 22.74 Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 …. 20.39, 20.51, 20.52 Tiger Plains Pastoral Co Pty Ltd v Mid Murray Council [2009] SAERDC 5 …. 13.8 Timbarra Protection Coalition Inc v Ross Mining NL (1998) 98 LGERA 211 …. 21.27, 21.33

— v — (1999) 46 NSWLR 55; 102 LGERA 52 …. 11.35, 14.94, 22.46, 22.47 Timbs v Shoalhaven City Council (2004) 132 LGERA 397 …. 3.35 Tinda Creek Spiritual and Environment Centre v Baulkham Hills Shire Council (1998) 100 LGERA 432 …. 21.41 Tipping v Eckersley (1855) 2 Kay & J 264 …. 3.21 Toner Design Pty Ltd v Newcastle City Council [2013] NSWCA 410 …. 11.18 Tonkin v Cooma-Monaro Shire Council (2006) 145 LGERA 48 …. 20.4, 20.7 Town of Mosman Park v Dalden Properties Pty Ltd (1986) 60 LGRA 9 …. 12.2 Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 55 LGRA 176 …. 22.67 Town Watch Inc v Grafton City Council (1997) 93 LGERA 401 …. 21.40 Townsville Port Authority v Max Locke, Registrar of Titles [2004] QCA 294 …. 3.9 Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96 …. 15.84, 20.66 Trail Smelter Arbitration (US v Canada) (1939) 33 AJIL 182 …. 4.15, 4.17, 4.19, 4.28 — v — (1941) 35 AJIL 716 …. 4.28 Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229 …. 22.72 Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133; [1999] NSWCA 196 …. 11.22, 11.32, 22.31, 22.36, 22.56 Transurban City Link Ltd v Allan (1999) 105 LGERA 427 …. 19.10 Traspunt No 4 Pty Ltd v Moreton Bay Regional Council [2012] QPEC 70 …. 13.25, 14.89 Tremain v Pike [1969] 3 All ER 1303 …. 3.29 Trives v Hornsby Shire Council [2015] NSWCA 158 …. 22.30 Tru Energy Renewable Developments Pty Ltd v Regional Council of Goyder [2014] SAERDC 48 …. 17.57 Trustees of the Sisters of the Good Samaritan v Warringah Council [2011]

NSWLEC 1181 …. 14.97 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 …. 19.2, 19.3 Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 …. 18.26, 22.74 Tucker v Fraser [1974] Qd R 147 …. 20.43, 20.76 Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 …. 22.59, 22.79 Tuna Boat Owners Association of SA Inc v Development Assessment Commission [2000] SASC 238 …. 8.46, 8.65 Tuna/Dolphin 1 (Mexico v USA) 30 ILM 1594 (1991) …. 4.32 Tuna/Dolphin II 33 ILM 839 (1994) …. 4.32 Tuna/Dolphin III …. 4.37 Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84 …. 13.21, 13.60 Tutton v Walter [1986] 3 WLR 797 …. 3.31 Twist v Randwick Municipal Council (1976) 136 CLR 106 …. 22.40

U Ulan Coal Mines Ltd v Minister for Planning and Moolarben Coal Mines Pty Ltd (2008) 160 LGERA 20; [2008] NSWLEC 185 …. 8.53, 22.56 — v Minister for Mineral Resources (2008) 161 LGERA 391 …. 7.12 UnChain St Kilda Inc v Port Phillip City Council [2009] VCAT 833 …. 22.73 Undervan Holdings Pty Ltd and Western Australian Planning Commission [2012] WASAT 49 …. 13.30 Unimin Pty Ltd v Commonwealth (1974) 22 FLR 299 …. 3.9 United States v Students Challenging Regulatory Agency Procedure (SCRAP) 412 US 669 (1973) …. 11.100 United States — Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WTO Doc WT/DS381/R (US-Tuna III) 2011 …. 4.37 University of Melbourne v Minister for Planning [2011] VCAT 469 …. 8.38

Upper Hunter Timbers Pty Ltd v Forestry Commission of New South Wales [2001] NSWCA 64 …. 11.23 Urgenda Foundation v Dutch Government (Dutch Climate Case) C/09/456689 / HA ZA 13-1396 (2015) …. 2.46

V Valherie v Strata Corporation No 1841 [2004] SASC 170 …. 3.21 Valiant Timber and Hardware Co Pty Ltd v Blacktown City Council (2005) 144 LGERA 33 …. 10.26 Valley Watch Inc v Minister for Planning (1994) 82 LGERA 209 …. 22.38 Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108 …. 2.6, 2.56, 3.21, 3.39, 3.44 Vanmeld Pty Ltd v Fairfield City Council (1992) 75 LGRA 374 …. 9.53, 9.54 — v — (1999) 101 LGERA 297 …. 22.31, 22.40, 22.43 Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 366 …. 9.54, 11.23, 18.55 Vaw (Kurri Kurri) Pty Ltd v Scientific Committee (2002) 122 LGERA 231 …. 14.84 — v — (2003) 128 LGERA 419 …. 14.84, 14.87, 22.64 Vellore Citizens’ Welfare Forum v Union of India (1996) 5 Supreme Court Cases 647 …. 2.45 Ventana Pty Ltd v Federal Airports Corporation & Fairways Group Pty Ltd (1997) 95 LGERA 58 …. 5.46 Vic Roads v Nillumbik Shire Council [2002] VCAT 1003 …. 11.58 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 …. 3.21 Viento Property Ltd and Western Australian Planning Commission [2009] WASAT 229 …. 19.28 Villawood Properties Pty Ltd v Greater Bendigo City Council [2005] VCAT 2703 …. 10.49 — v — (2005) 146 LGERA 117 …. 13.36, 13.38 Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council (No 2)

[2010] NSWLEC 252 …. 21.34 Vitality Care Pty Ltd v Director-General, Dept of Natural Resources [2006] NSWLEC 506 …. 9.4 Von Hartel v Macedon Ranges Shire Council [2014] VSC 215 …. 2.65, 10.70 Vorrasi v Adelaide City Council [2010] SASC 25 …. 22.57

W WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260 …. 14.61, 14.62, 14.98 Wagner v Transpacific Industries Pty Ltd [2008] SAERDC 66 …. 15.28 Wait and Australian Fisheries Management Authority, Re (2002) AATA 159 …. 18.45 Wakool Shire Council v Garrision Cattle Feeders Pty Ltd [2010] NSWLEC 199 …. 20.65 Walden v Hensler [1986] 2 Qd R 490 …. 14.66 — v — (1987) 163 CLR 561 …. 2.13, 3.6 Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water (No 2) [2009] NSWLEC 177 …. 20.28 Wall v Doyle [2008] QPEC 23 …. 14.46, 14.50, 20.12 Wall, Director-General of the Environmental Protection Agency v Douglas Shire Council [2008] QCA 56 …. 18.56 Walsh v Ervin [1952] VLR 361 …. 3.25 — v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 …. 22.17, 22.49, 22.62, 22.65, 22.66 — v Stay and Play Australia Ltd; Ex parte Walsh [1992] 1 Qd R 321 …. 12.19 Walter v Selfe (1851) 4 De G & Sm 315; [1851] Eng R 335 …. 3.20 Ward v Williams (1955) 92 CLR 496 …. 15.91, 20.7 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 …. 8.33, 8.82 Warragamba Winery Pty Ltd v New South Wales (No 9) [2012] NSWSC 701 …. 3.43

Warren, Re (1990) 20 ALD 729 …. 9.21 Warren v ELCOM (NSW) (1990) 130 LGERA 565 …. 22.77 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335; 63 LGRA 361 …. 9.53, 21.6 Water Administration Ministerial Corp v Auburn Council [2000] NSWLEC 76 …. 9.74, 18.19 — v Mills (1999) 110 LGERA 371 …. 22.52 Water Corporation v Chief Executive Officer of The Department of Environment [2006] WASC 256 …. 13.30 Wattleup Road Development Co Pty Ltd and Western Australian Planning Commission [2011] WASAT 160 …. 8.67 — v — [2015] WASCA 104 …. 22.17 WC & AC Morin Pty Ltd v Queensland Fisheries Management Authority [2000] QSC 169 …. 18.49 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 …. 10.24, 22.61, 22.64, 22.65, 22.72 Webb v Chung [2002] NSWLEC 135 …. 20.112 Webster v Caboolture Shire Council [2008] QPEC 82 …. 10.3 Weeroona Holdings Pty Ltd v Environment Protection Authority [2013] SAERDC 41 …. 2.59, 16.38 Wellfare v Sutherland Shire Council (1983) 49 LGRA 395 …. 11.17 Wellington v Surfcoast Shire Council (includes Summary) (Red Dot) [2011] VCAT 2317 …. 21.16 Wentworth v Woollahra Municipal Council (No 3) (1985) 59 ALJR 36 …. 19.45 West Australian Field and Game Association v Minister of State for Conservation and Land Management and Environment (1992) 8 WAR 64 …. 19.3 Western Australia v Bropho (1991) 74 LGRA 156 …. 22.38 — v Commonwealth (1995) 183 CLR 373 …. 2.10 — v Ward (2002) 191 ALR 1 …. 2.13, 2.14 Western Australian Land Authority (Landcorp) v Minister for Sustainability,

Environment, Water, Population and Communities [2012] FCA 226 …. 6.11, 22.2, 22.38 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 137 LGERA 232; [2004] HCA 63 …. 7.36, 10.9, 15.76, 22.75 Western Districts Developments Pty Ltd v Baulkham Hills Shire Council [2009] NSWCA 283 …. 3.30, 17.53 Western Sydney Conservation Alliance v Penrith City Council [2011] NSWLEC 244 …. 14.91 Westfield Ltd v Commissioner for Land Planning [2004] ACTSC 49 …. 19.11 Westlink Pty Ltd atf Westlink Industrial Trust v Lockyer Valley Regional Council (No 4) [2013] QPEC 35 …. 10.3 Weston Aluminium Pty Ltd v Environment Protection Authority (2006) 148 LGERA 439 …. 7.12 — v — (2007) 156 LGERA 283; [2007] HCA 50 …. 7.17 Whaling in the Antarctic: Australia v Japan (2014) 31 EPLJ 459 …. 4.27 Wherry v KB Hutcherson Pty Ltd (1987) Aust Torts Reports 80-107 …. 3.21 White v Patterson [2009] QCA 320 …. 12.19 — and Australian Fisheries Management Authority (2005) AATA 174 …. 18.45 Whitehouse v Remme (1988) 64 LGRA 375 …. 21.6 Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 8) [2011] FCA 175 …. 21.25 — v — (No 9) [2011] FCA 661 …. 21.24, 21.25 Wik Peoples v Queensland (1996) 187 CLR 1 …. 2.8 Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175 …. 2.39, 6.9, 6.11, 9.10, 18.73, 19.44, 21.27, 21.33, 22.40, 22.70 Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307 …. 22.40, 22.43, 22.45 Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage [2006] FCA 736 …. 6.18, 17.37, 17.55

Wildlife Protection Association of Australia Inc and Minister for the Environment, Heritage and the Arts, Re [2008] AATA 717 …. 8.53, 14.6 Wilkie v Blacktown City Council (2002) 121 LGERA 444 …. 20.50 Williams v Commonwealth [2012] HCA 23 …. 5.27 — v — [2014] HCA 23 …. 5.27 — v Director-General, Department of Environment and Conservation [2004] NSWLEC 613 …. 22.40, 22.44 — v — (2005) 138 LGERA 442 …. 22.34, 22.37 — v Director General of National Parks and Wildlife Service [2002] NSWLEC 235 …. 21.9 — v Homestake Australia Ltd (2002) 119 LGERA 55; [2002] NSWLEC 5 …. 21.9, 22.11 — v — [2002] NSWLEC 155 …. 21.9 — v Minister for Planning [2009] NSWLEC 5 …. 11.88, 22.64, 22.66 — v — (No 2) [2011] NSWLEC 62 …. 8.34 — v Pardoe (2003) 132 LGERA 54 …. 21.41 Willoughby City Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422 …. 10.27 — v Minister Administering the National Parks & Wildlife Act (1992) 78 LGERA 19 …. 2.52, 7.21, 12.74 — v Revelas (2004) 140 LGERA 348 …. 20.80 — v Transport Infrastructure Development Corporation (No 2) [2008] NSWLEC 238 …. 22.11 Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 …. 7.13 Window v Phosphate Co-operative Co of Aust Ltd [1983] 2 VR 287 …. 20.32, 20.33 Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299 …. 10.27 Wingecarribee Shire Council v O’Shanassy (No 6) [2015] NSWLEC 138 …. 10.4, 13.32 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 …. 22.21

Winkworth v McCallum (No 2) [2008] SAERDC 80 …. 14.52 Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 …. 10.9, 21.17, 22.55 Wiseowl Investments Pty Ltd and Shire of Busselton [2010] WASAT 150 …. 8.56, 8.74 Witheyman v Simpson [2009] QCA 388 …. 13.24 WJ Manning and The Friends of Four Mile Creek Bushcare Group Inc v Break O’Day Council and Morris Nunn & Associates obo R Bejah [2006] TASRMPAT 26 …. 18.58 Wollongong City Council v Australian Iron and Steel Pty Ltd [1988] NSWLEC 67 …. 16.16 — v Ensile Pty Ltd; Wollongong City Council v Hogarth (No 2) [2008] NSWLEC 146 …. 22.11 — v Richardson (1989) 67 LGRA 423 …. 3.24 Woo v Campbelltown City Council [2008] SAERDC 25 …. 8.68 Wood v Sutcliffe (1851) 2 Sim NS 163 …. 3.27 Woollahra Municipal Council v Minister for Environment (1991) 23 NSWLR 710 …. 7.21, 7.22, 12.74, 22.53 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; 136 LGERA 288 …. 22.30, 22.52 Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 …. 5.48 WRF Property Pty Ltd v Armidale Dumaresq Council [2003] NSWLEC 223 …. 16.43 Wright & Romeyko v Corporation of City of West Torrens (1996) 91 LGERA 197 …. 20.50 Wygiren v Kiama Municipal Council [2008] NSWLEC 1233 …. 8.40 Wyong Shire Council v Hughes (2000) 106 LGERA 228 …. 20.66 — v MCC Energy Pty Ltd [2005] NSWCA 86 …. 22.72, 22.77 — v Shirt (1980) 60 LGRA 106 …. 3.37

X Xstrata Coal Qld Pty Ltd, Re [2007] QLRT 33 …. 17.56

Xstrata Coal Qld Pty Ltd v Friends of the Earth, Brisbane Co-Op Ltd [2012] QLC 13 …. 2.72, 8.77, 11.49, 17.56 — v — [2012] QLC 13 …. 8.53, 8.56, 8.65, 8.74

Y Yallingup Residents Association Inc v State Administrative Tribunal (2006) 148 LGERA 132 …. 10.70, 22.40 Yanner v Eaton (1999) 105 LGERA 71 …. 2.13, 2.14, 3.8 Yarra Ranges Shire Council v Australian Native Landscapes [2008] VCAT 2342 …. 16.15 Yates Security Services Pty Ltd v Keating (1990) 98 ALR 68 …. 19.12 York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983] 1 NSWLR 391 …. 3.24, 3.44 Young v Bankier Distillery; Almhirst v Spencer (1884) 14 LTOS 433 …. 3.21 — v Corporation of City of Whyalla [2009] SASC 314 …. 16.16 — v Environment Protection Authority [2009] VCAT 564 …. 19.58 — v Northern Territory (1992) 107 FLR 264 …. 3.29 Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670 …. 6.10, 6.18, 19.44 Yu Feng Pty Ltd v Chief Executive, Queensland Department of Local Government and Planning (1998) 99 LGERA 122 …. 19.11

Z Zapirain and Minister for the Environment, Heritage and the Arts [2008] AATA 1047 …. 14.5 Zhang v Canterbury City Council (2001) 115 LGERA 373 …. 22.63, 22.65

Table of Statutes References are to paragraph numbers

Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 …. 5.28, 18.68, 22.44 ss 23A–23C …. 18.68 Aboriginal Land Rights (Northern Territory) Act 1976 …. 2.15 Acts Interpretation Act 1901 s 15AA …. 2.65 s 15AB …. 7.15 s 15AB(2)(d) …. 4.44 Administrative Appeals Tribunal Act 1975 …. 2.72 Pt 4 Div 3 …. 22.13 Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) …. 19.16, 19.28, 19.31, 19.32, 19.43, 22.19, 22.20, 22.21 s 3(4) …. 19.20 s 5 …. 19.4, 19.15, 19.31 s 16 …. 22.19 Sch 1 …. 22.19 Agricultural and Veterinary Chemicals (Administration) Act 1992 s 69C …. 15.135 Agricultural and Veterinary Chemicals (Administration) Regulations 1995 reg 1.3 …. 15.135 reg 3.05 …. 15.135 Airports Act 1996 …. 5.51, 7.19

Airports (Environment Protection) Regulations 1997 …. 5.51 Antarctic Marine Living Resources Conservation Act 1981 …. 5.12 Antarctic Mining Prohibition Act 1991 …. 5.5, 5.12 Antarctic Treaty (Environment Protection) Act 1980 …. 5.12, 7.19, Pt D.8, 12.33, 14.10 s 7C …. 14.10 s 10 …. 14.10 s 10(1)(c) …. 14.10 s 19A …. 12.33 s 19B …. 12.33 Antarctic Treaty (Environment Protection) (Environmental Impact Assessment) Regulations 1993 cl 8 …. 9.72 Arts, Environment and Territories Legislation Amendment Act 1992 …. 5.22 Atomic Energy Act 1953 …. 15.130, 15.131, 18.67 Australian and Overseas Telecommunications Corporation Act 1991 s 33 …. 5.47 Australian Capital Territory (Self-Government) Act 1988 …. 5.39 s 22 …. 5.1 Sch 4 …. 5.1 Australian Heritage Council Act 2003 …. 5.63 s 30 …. 19.12 Australian Maritime Safety Authority Act 1990 s 48 …. 15.121 Australian Nuclear Science and Technology Organisation Act 1987 …. 18.67 s 4 …. 18.67 s 7A …. 5.51 Australian Radiation and Protection and Nuclear Safety Act 1998 ….

15.131 Biosecurity Act 2015 …. 4.39, 5.5, 5.12, 5.45, 14.8, 14.9, 15.139 Ch 3 …. 5.45, 14.8 Ch 5 …. 4.39 Ch 6 …. 4.39, 5.45, 14.8 s 5 …. 4.39, 5.45, 14.8 s 24 …. 5.5 s 25 …. 4.39, 5.45 s 26 …. 4.39, 5.45 s 28 …. 5.45 s 166 …. 4.39, 5.45, 14.8 s 270 …. 15.139 ss 271–28 …. 15.139 ss 285–290 …. 15.139 ss 291–296 …. 15.139 s 298 …. 15.139 s 299 …. 15.139 s 302 …. 15.139 s 303 …. 15.139 s 304 …. 15.139 s 305 …. 15.139 Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015 Sch 1 …. 4.39 Clean Energy Act 2011 …. 5.12, 5.24 Clean Energy (Fuel Tax Legislation Amendment) Act 2011 …. 5.23 Coastal Waters (Northern Territory Powers) Act 1980 …. 5.29 Coastal Waters (Northern Territory Title) Act 1980 …. 5.29 Coastal Waters (State Powers) Act 1980 …. 5.29, 5.31

Coastal Waters (State Title) Act 1980 …. 5.29 s 4(3) …. 12.18 Code of Practice for the Near-Surface Disposal of Radioactive Waste in Australia 1992 …. 15.132 Code of Practice on Radiation Protection and Radioactive Waste Management in Mining and Mineral Processing 2005 …. 15.132 cl 2.3.1 …. 15.132 cl 3.4.5 …. 15.132 cl 3.8 …. 15.132 Commonwealth of Australia Constitution Act 1901 …. 2.28, 2.45, 2.46, 2.60, 4.44, 5.1, 5.2, 5.3, 5.27, 5.39, 18.48 s 51 …. 5.1, 5.3, 5.6, 5.31 s 51(i) …. 5.3, 5.4, 5.8, 14.2 s 51(ii) …. 5.3, 5.21 s 51(vi) …. 5.38 s 51(ix) …. 5.3 s 51(x) …. 5.3, 5.29, 5.31 s 51(xi) …. 5.38 s 51(xv) …. 5.38 s 51(xx) …. 5.3, 5.16, 5.17, 5.19 s 51(xxvi) …. 5.3, 5.28 s 51(xxix) …. 5.3, 5.11 s 51(xxx) …. 5.38 s 51(xxxi) …. 2.28, 2.30, 5.32, 5.35, 5.36, 18.48 s 51(xxxvi) …. 5.36 s 51(xxxvii) …. 5.38 s 51(xxxviii) …. 5.30 s 51(xxxix) …. 5.38 s 52 …. 5.2, 5.39, 5.46, 5.48, 5.53

s 81 …. 5.27 ss 81–83 …. 5.21 s 90 …. 5.2, 5.39, 5.40, 5.43 s 92 …. 4.40, 5.10, 5.39, 5.42, 5.43, 5.45, 14.3, 14.7 s 96 …. 5.5, 5.21, 5.22, 5.36 s 100 …. 5.1 s 109 …. 2.10, 5.3, 5.8, 5.39, 5.49, 5.53, 7.19 s 122 …. 5.5 Commonwealth Places (Application of Laws) Act 1970 …. 5.48, 15.15 s 4 …. 5.48 s 4(2)(a) …. 5.46 s 4(3) …. 5.48 ss 12–15 …. 5.46 Commonwealth Places (Application of Laws) Regulation 2014 …. 5.48 Comprehensive Nuclear Test-Ban Treaty Act 1998 …. 5.38 Corporations Act 2001 s 180 …. 20.71 s 731 …. 20.71 Criminal Code Act 1995 …. 20.58, 20.71, 20.76 Div 5 …. 20.44 Div 9 …. 20.76 Div 10 …. 20.76 Pt 5.3 …. 2.40 s 5.2 …. 20.37 s 5.5 …. 12.19 s 12.2 …. 20.58 s 12.3 …. 20.58, 20.71 s 12.3(2) …. 20.58

s 12.4 …. 20.58 s 12.5 …. 20.71, 20.85 s 12.5(2) …. 20.73 Customs Act 1901 …. 5.4, 14.6 Customs (Prohibited Exports) Regulations 1958 …. 5.4, 14.6 Sch 3 …. 14.6 Sch 3A …. 14.6 Sch 4 …. 14.6 Customs (Prohibited Import) Regulation …. 14.6 Customs Tariff Amendment Act (No 2) 2002 …. 5.23 Customs Tariff Amendment (Product Stewardship for Waste Oil) Act 2000 …. 5.23 Defence Act 1903 s 122A …. 5.51 Endangered Species Protection Act 1992 (ESPA) …. 14.3 s 27 …. 8.37 Sch 1 …. 14.15 Sch 2 …. 14.15 Sch 3 …. 14.16, 14.24 Energy Efficiency Opportunities Act 2006 …. 5.20 Energy Grants and Other Legislation Amendment (Ethanol and Biodiesel) Act 2015 …. 5.23 Energy Grants (Cleaner Fuels) Scheme Act 2004 …. 5.23, 15.1 Environment (Financial Assistance) Act 1977 …. 5.22 Environment (Impact of Proposals) Act 1974 (EPIP Act) …. 9.10, 11.57 Environment Protection (Alligator Rivers Region) Act 1978 …. 18.68 ss 5–5B …. 18.68 Environment Protection and Biodiversity Conservation Act 1999 (EPBCA) …. 2.38, 4.28, 4.44, 5.5, 5.12, 5.28, 5.30, 5.37, 5.65, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.14, 6.16, 6.17, 6.19, 6.21, 6.24, 6.25, 6.27, 6.32, 6.33, 6.34, 6.38,

6.40, 6.43, 6.46, 6.48, 6.62, 6.74, 6.75, 7.4, 7.11, 7.35, 8.37, 8.66, 9.23, 9.28, 9.63, 11.1, 11.4, Pt D.3, Pt D.6, 12.8, 13.12, 13.35, 13.37, 13.62, 14.3, 14.6, 14.12, 14.15, 14.18, 14.20, 14.22, 14.23, 14.28, 14.29, 14.36, 15.131, 18.5, 18.41, 18.65, 18.66, 18.68, 19.18, 19.43, 19.44, 20.8, 20.13, 20.14, 20.19, 20.87, 21.8, 22.2, 22.54 Ch 4 …. 6.23 Ch 5A …. 6.5 Ch 5B …. 6.5, 18.41 Ch 6 …. 5.65 Div 3 …. 6.5 Pt 3 …. 6.13, 6.18, 6.19, 6.28, 6.35, 6.42, 6.45, 6.46, 6.47, 6.62, 6.69, 6.73, 12.61, 22.54 Pt 3 Div 1 Subdiv E …. 15.130, 15.131 Pt 4A …. 11.47 Pt 7 Div 3 …. 22.2 Pt 8 …. 6.28 Pt 9 …. 6.28, 6.35, 6.37, 6.43, 6.49, 8.47, 12.17, 12.24 Pt 10 …. 6.39, 18.41 Pt 10 Div 2 …. 6.44 Pt 13 …. 6.5, 18.41 Pt 13 Div 3 …. 6.5, 7.7 Pt 13 Div 4 …. 6.5 Pt 13A …. 5.8, 6.5, 14.4, 14.5, 18.41 Pt 15 …. 7.35 Pt 15 Div 1A …. 6.5 Pt 15 Div 3A …. 6.5 s 2A …. 6.49 s 3 …. 7.22, 12.31 s 3A …. 6.62, 8.19, 8.35, 8.79 s 6 …. 12.59

s 5(5) …. 6.5 s 9 …. 7.19 s 10 …. 5.7, 5.50, 6.24, 7.19 ss 11–25 …. 6.8 s 12 …. 6.15, 6.19, 12.14 s 12(3) …. 12.12 s 13 …. 6.5 s 13(1) …. 12.12 s 13(2) …. 12.12 s 14 …. 5.14, 12.11 s 14(1) …. 12.12 s 14(2)–(4) …. 12.12 s 14(6) …. 12.13 s 14(7) …. 12.13 s 15 …. 12.13 s 15A …. 12.14 s 15B …. 6.5, 6.14 s 15C …. 6.14 s 16 …. 12.23 s 16(1) …. 20.114 s 17 …. 6.5 s 17(1) …. 12.22 s 17(2) …. 12.22 s 17A …. 12.22 s 17A(2)–(4) …. 12.22 s 17A(6) …. 12.22 s 17A(7) …. 12.22 s 17B …. 12.23

s 18 …. 6.5, 14.18, 20.14 s 18A …. 14.19, 20.14, 20.39 s 18A(4) …. 14.19 s 19 …. 14.20 s 19(3)(b) …. 14.20 s 20 …. 6.5, 12.61, 14.28 s 20(2)(c) …. 14.20 s 20A …. 14.28 s 20A(4)(c) …. 14.20 s 21 …. 12.61, 15.131 ss 21–22A …. 15.131, 18.68 s 22 …. 6.5, 15.131, 18.68 s 22A …. 15.131 s 24 …. 4.27, 6.5, 12.26, 12.57, 12.58 s 24B …. 6.5 s 24C …. 6.5 s 24D …. 6.5 s 24E …. 6.5 s 25(1) …. 6.30 s 25A …. 6.8 s 25A(1) …. 6.5 s 25AA …. 6.8, 6.16 ss 26–27 …. 6.8 s 27 …. 6.5, 12.59 s 28 …. 6.6, 6.8 s 28(3) …. 6.46 s 28(4) …. 6.46 s 28(5) …. 6.46

s 28A …. 6.8 s 28AA …. 6.8 s 28AB …. 6.8, 6.16 s 29 …. 12.60 ss 29–31 …. 6.46 s 32 …. 6.46 s 32(c) …. 6.49 s 33 …. 6.35, 6.42, 6.46, 6.49, 7.35, 12.16, 12.23 s 33(2) …. 6.49 s 33(3) …. 6.35 s 33(4)–(8) …. 6.35 s 34 …. 6.35 s 34A …. 6.36 s 34B …. 12.16 ss 34B–34E …. 6.36 s 34C …. 12.23 s 35 …. 6.35 s 37 …. 6.46, 12.60 ss 37–37L …. 6.36 s 37A …. 6.43, 6.46 s 37M …. 6.37, 6.43, 6.46 s 38 …. 6.38, 11.2, 18.72, 18.74, 18.75 ss 38–42 …. 6.38, 6.46 ss 40–42 …. 18.72 s 42 …. 11.2, 12.61 s 43 …. 6.46, 12.18, 12.61 s 43A …. 6.46 s 43B …. 6.46

s 44 …. 6.26, 6.27 s 45 …. 6.26 s 46 …. 6.28, 6.42, 12.17, 12.24, 12.61 s 47 …. 6.32, 12.61 s 47(4) …. 6.32, 6.60 s 48 …. 6.26, 12.61 s 48A(1) …. 6.28 s 48A(2) …. 6.28 s 48A(3) …. 6.28 s 49 …. 6.26 s 49A …. 6.30 s 50 …. 6.26 ss 51–54 …. 6.30 s 54 …. 12.61 s 55 …. 6.30, 12.61 s 56 …. 6.30, 12.61 s 57 …. 12.61 ss 57–64 …. 6.31 s 65 …. 6.31 s 65A …. 6.31 s 67 …. 6.8, 6.13, 6.19, 6.22 s 67A …. 6.8 s 68 …. 6.9, 11.6 s 68A …. 6.9 s 69 …. 6.9, 11.6 s 70 …. 6.9, 11.6 s 71 …. 6.9, 11.6 s 72(3) …. 6.43

s 74(1) …. 6.12 s 74(1A) …. 6.12 s 74(1B) …. 6.12 s 74(2) …. 6.12 s 74(3) …. 6.12, 6.19, 11.6 s 74(3A) …. 6.12 s 74(3B) …. 6.12 s 74A …. 6.7, 6.10, 11.6 s 74AA …. 6.11, 11.11 s 74B …. 6.19 s 74C …. 6.19 s 74D …. 6.19 s 75 …. 6.13, 6.15, 6.18, 11.8 s 75(1) …. 6.13 s 75(2) …. 6.19 s 75(2)(b) …. 14.20 s 75(3)–(7) …. 6.22 s 76 …. 6.19 s 77(1) …. 6.22 s 77(1)(b) …. 6.22 s 77(2) …. 6.22 s 77(4) …. 6.22 s 77A …. 6.19, 6.46 s 78 …. 6.11, 6.20 s 78(5)–(7) …. 6.22 ss 78A–78C …. 6.10 s 79 …. 6.20 s 82 …. 6.21, 6.28, 6.47

s 83 …. 6.28, 6.32, 6.46 s 84 …. 6.37, 6.46, 11.2 s 84(3) …. 6.37, 6.60 s 86 …. 6.50 s 87 …. 6.42, 7.35, 8.47, 9.23 s 87(1) …. 6.47 s 87(2) …. 6.50 s 87(3) …. 6.50 s 87(4) …. 6.52, 6.60 s 87(4A) …. 6.53 s 87(5) …. 6.54 s 87(6) …. 6.50 s 88 …. 6.50, 6.51 s 88(4) …. 6.51 s 88(5) …. 6.51 s 89 …. 6.51 s 91 …. 6.51 s 91(2) …. 6.51 s 93(2) …. 6.53 s 93(3)(a) …. 6.53 s 93(3)(b) …. 6.53 s 93(4) …. 6.53 s 93(5) …. 6.53 s 95 …. 6.54 s 95A …. 6.54 s 95B(1) …. 6.54 s 95B(2) …. 6.54 s 95C …. 6.54

s 96A …. 11.13 s 96A(1) …. 6.55 s 96A(3) …. 6.55 s 96A(4) …. 6.55 s 96B …. 6.55 s 97 …. 6.55 s 97(3) …. 6.47, 6.55 s 97(3)(b) …. 6.55 s 97(5) …. 6.55 s 98(1) …. 6.55 s 98(3) …. 6.55 s 99 …. 6.55, 12.39 s 100 …. 6.55 s 101A …. 11.13 ss 102–105 …. 6.56 s 102(3) …. 6.47 s 107 …. 11.12 s 107(1) …. 6.57 s 107(3)–(5) …. 6.57 s 107(4) …. 6.47 s 108 …. 6.57 s 109 …. 6.57, 14.36 s 110 …. 6.57 s 111A …. 13.42 s 111S …. 13.42 s 122 …. 6.57 s 130 …. 6.60, 6.61 s 130(1) …. 6.61, 22.54

s 130(1B) …. 6.60 s 130(2) …. 6.60 s 130(3) …. 6.60 s 130(4) …. 6.60 s 130(5) …. 6.60 s 131(1)(a) …. 6.60 s 131(2)(b) …. 6.60 s 131A …. 6.60 s 131AA …. 6.60 s 131AA(7) …. 22.40 s 132 …. 6.60 s 132A …. 6.60 s 133 …. 6.60, 22.54 s 134 …. 6.60, 6.62, 6.67 s 134(1) …. 15.131 s 134(2) …. 6.69, 15.131 s 134(3) …. 6.70, 15.131 s 134(3)(d)–(f) …. 6.72, 11.94 s 134(3)(e) …. 15.131 s 134(3)(f) …. 15.131 s 134(3)(g) …. 15.131 s 134(4) …. 6.70 s 134(4)(a) …. 6.67, 6.68, 6.70, 22.46 s 134(5) …. 6.70 s 136 …. 6.62, 8.21, 8.35, 11.14 ss 136–140A …. 6.62 s 136(2–4) …. 6.62 s 136(5) …. 6.62, 7.33

s 137 …. 12.16 ss 137–140 …. 6.64 ss 137–140A …. 6.69 s 139(1) …. 6.64 s 139(1)(b) …. 14.22 s 140A …. 18.68 s 142 …. 6.73 s 142A …. 6.73 s 142A(3) …. 6.73 s 142B …. 6.73 ss 143–145A …. 6.65 s 146 …. 6.41, 6.42, 6.59, 7.35, 9.19, 9.23 ss 146A–146M …. 6.42 s 146B …. 6.43 s 146D …. 6.43 ss 146F–146M …. 6.43 s 146M …. 18.68 s 148 …. 9.19 s 153 …. 6.44 s 156 …. 6.51 s 156A …. 6.11 s 156B …. 6.11 s 156D …. 6.11 s 158 …. 6.46 s 158A …. 6.19, 6.60 ss 159–164 …. 6.46, 6.58 s 166 …. 6.59 s 167 …. 6.59

s 168 …. 6.59 s 169 …. 6.59 s 170 …. 6.59 s 170C …. 6.9 s 170C(3) …. 6.9 s 172 …. 12.10 s 173 …. 12.10 s 176 …. 6.43, 9.63, 12.9 s 177 …. 9.63 s 178 …. 14.12 s 178(2) …. 14.14 s 178(4) …. 14.14 s 179 …. 14.12 s 180 …. 14.12 s 181 …. 14.13 s 181(3) …. 14.14 s 181(4) …. 14.14 s 182 …. 14.13 s 183 …. 14.16 ss 184–187 …. 14.14 s 186(2) …. 14.14 s 187(2) …. 14.14 s 188 …. 14.16 s 188(3) …. 14.16 s 188(4) …. 14.16 s 189 …. 14.14, 14.16 s 190 …. 14.14 s 192 …. 14.14

s 193 …. 141.14 s 194 …. 14.17 s 194C …. 14.17 s 194D …. 14.17 s 194E …. 14.17 s 194E(1) …. 14.17 ss 194G–194J …. 14.17 ss 194K–194M …. 14.17 s 194N …. 14.17 s 194P …. 14.17 s 194Q …. 14.17 s 195 …. 14.19 ss 196–196E …. 14.19, 20.42 s 196B …. 14.18 s 196F …. 14.18 s 197 …. 14.20 s 199 …. 14.20 s 200 …. 14.20 ss 200–207 …. 14.20 s 201 …. 14.20 s 207A …. 14.21 s 207B …. 14.21 s 207C …. 14.21 s 209 …. Pt D.7, 14.28 s 210 …. 14.28 s 211 …. 14.18 ss 211–211E …. 14.28, 20.42 ss 211–211F …. 14.30

s 211F …. 14.18 s 212 …. 14.28 s 213 …. 14.28 s 214 …. 14.28 ss 215–222 …. 14.28 s 224 …. 14.29 s 225 …. 4.27, 6.6, 14.29 s 226 …. 4.27, 14.29 s 227 …. 14.29 s 228A …. 14.29 ss 229–229D …. 14.19 ss 229–232 …. 4.27 ss 229–244 …. 14.29 ss 229A–229C …. 20.42 s 231(aa)(ii) …. 14.29 s 231(h) …. 14.29 s 236 …. 4.27, 14.29 s 245 …. 14.29 s 246 …. 14.29 ss 249–252 …. 14.30 ss 253–265 …. 14.30 ss 254–254F …. 14.30 s 254 …. 14.18, 20.42 s 254A …. 20.42 s 254F …. 14.18 s 266B(2) …. 6.64, 14.14 s 268 …. 14.23, 14.24 s 269 …. 9.20, 14.23, 14.24

s 269AA …. 14.22 s 269A …. 14.22 s 269A(3) …. 14.22 s 269A(4) …. 14.22 s 269A(5) …. 14.22 s 269A(7) …. 14.22 s 270 …. 14.22 s 270(1) …. 14.22 s 270A(1) …. 14.24 s 270A(2) …. 14.24 s 270A(3)–(7) …. 14.24 s 270A(8) …. 14.24 s 270A(9) …. 14.24 s 270B …. 14.24 s 271 …. 14.24 s 271(1) …. 14.22, 14.24 s 272 …. 14.32 s 273(4) …. 14.24 s 273(5) …. 14.24 ss 274–284 …. 14.24 s 277 …. 14.22 s 279 …. 14.23 s 280 …. 14.23 s 283A …. 14.25 s 285 …. 9.20, 14.22, 14.31 s 286 …. 9.21, 14.31 ss 287–298 …. 14.31 s 287(1) …. 14.31

s 288 …. 14.32 s 299 …. 14.31 s 301A …. 14.32 s 303A …. 14.20 s 303CC …. 14.5 s 303CD …. 14.5 s 303CG …. 14.5, 22.3 s 303DA …. 14.5 s 303DD …. 14.5 s 303DG …. 14.5 s 303EC …. 14.5 s 303EC(3) …. 14.6 s 303EC(5) …. 14.6 ss 303ED–303EJ s 303EK …. 14.5 s 303EN …. 14.5 ss 303FA–303FU …. 14.5 ss 303FN–303FP …. 14.6 s 303FN(3) …. 18.41 s 303GB …. 14.5 s 303GN …. 14.5 s 303GP …. 14.5 s 304 …. 12.39 s 305 …. 6.43, 7.47, 12.39 s 305(2) …. 12.39 s 305(3) …. 12.39 s 305(6) …. 12.39 s 306 …. 12.39

s 306A …. 6.37, 6.43, 12.39 s 306A(2) …. 12.39 s 307 …. 7.46, 12.39 s 307A …. 12.39 s 308 …. 12.39 s 308(4)–(8) …. 12.39 s 309 …. 12.39 s 310 …. 12.39 ss 311–312 …. 12.39 s 314 …. 12.12 s 314(3) …. 12.12 s 315 …. 12.13 s 316(1) …. 12.17 s 316(3) …. 9.17, 12.17 s 316(4) …. 12.17 s 316(6) …. 12.17 s 316(7) …. 12.17 s 318 …. 9.21, 12.17 s 319 …. 12.17 s 320 …. 12.17 s 321 …. 12.17 s 321(2) …. 12.17 s 322 …. 12.17 s 323 …. 9.17, 12.17 s 324 …. 12.17 ss 324A–324ZC …. 12.38 s 324X(2) …. 12.38 s 324ZB …. 5.27

s 326 …. 12.22 s 326(3) …. 12.22 s 327 …. 12.22 ss 328–336 …. 12.24 s 328(3) …. 9.17 s 330 …. 9.21 s 335 …. 12.24 s 337 …. 6.5, 12.25 s 338 …. 9.17, 12.25 s 339 …. 12.25 s 340 …. 9.17, 12.25 s 341 …. 12.25 s 341C …. 12.35 s 341D …. 12.35, 12.36 s 341G …. 12.35 s 341H …. 12.35 s 341J …. 12.35 s 341JA …. 12.35 s 341JB …. 12.35 s 341JC …. 12.35 s 341JD …. 12.35 s 341JE …. 12.35 s 341JF …. 12.35 s 341JG …. 12.35 s 341JG(4) …. 12.35 s 341JH …. 12.35 s 341JI …. 12.35 ss 341JK–341JO …. 12.35

s 341JP …. 12.35 s 341JQ …. 12.35 s 341JR …. 12.35 s 341L …. 12.35 s 341M …. 12.35 s 341S …. 12.36 s 341V …. 12.36 ss 341Z–341ZB …. 12.36 s 341ZC …. 12.36 s 341ZD …. 12.36 s 341ZE …. 12.36 s 341ZF …. 12.36 s 341ZG …. 5.27 s 344 …. 12.26, 12.57 s 344(2) …. 12.26 s 345 …. 12.26 s 345A …. 12.26, 12.27 ss 346–347 …. 12.27 s 348 …. 9.17, 12.29, 12.57 s 349 …. 12.27 ss 350–352 …. 12.26 s 350(7) …. 12.27 s 350(6) …. 12.27 s 351 …. 12.26 s 351(6) …. 12.26 s 352 …. 12.27 s 354 …. 12.30 s 354(1) …. 12.30

s 354(1)(a) …. 12.30 s 354(1)(f) …. 12.30 s 354(2) …. 12.31 s 354(4) …. 12.33 s 354(8) …. 12.32 s 354A …. 12.32 s 355 …. 12.32, 12.33, 12.69 s 355(5) …. 12.33 s 355A …. 12.32, 12.33 s 355A(4) …. 12.32 s 357 …. 12.31 s 358 …. 12.27 s 359 …. 12.34 s 359A …. 12.34 s 359B …. 12.31 s 360 …. 12.30, 12.31 s 360(6) …. 12.33 s 362 …. 12.31 s 363 …. 12.31 s 364 …. 12.31 s 366 …. 9.17, 12.28 s 367 …. 12.29 s 367(1)(i) …. 12.17 s 367(3) …. 9.17, 12.29 s 368 …. 12.29 s 368(3) …. 12.29 s 368(4) …. 12.29 s 369 …. 12.31

s 370 …. 12.29 s 371 …. 12.29 s 373 …. 12.29 ss 374–383 …. 12.28 ss 374–390A …. 12.28 s 376 …. 12.28 ss 384–390A …. 5.28, 12.34 s 387 …. 12.33, 12.69, 18.62 s 390 …. 12.29 s 390C …. 12.40 s 390D …. 12.40 s 390E …. 12.40 s 390H …. 12.40 s 390J …. 12.40 ss 390K–390R …. 12.37 ss 390SD–390SF …. 18.41 s 391 …. 6.55, 6.63, 8.66 s 458 …. 6.72 s 459 …. 6.72 s 460 …. 6.72 s 461 …. 6.72 s 464 …. 14.26, 20.4 s 464(4) …. 14.26 s 465 …. 14.26 s 466 …. 14.26 ss 467–469 …. 14.26 s 468 …. 22.2 s 469 …. 22.2

s 470(1) …. 14.27 s 470(2) …. 14.27 s 470(3) …. 14.27 s 471 …. 14.27 s 472 …. 14.27 s 473 …. 14.27 s 474 …. 14.26 s 475 …. 21.2, 21.7, 21.18 s 475(2) …. 21.5 s 475(3) …. 21.5 s 475(4) …. 21.6 s 475(6) …. 19.43, 19.44 s 476 …. 12.39, 21.7 s 478 …. 21.15 s 479(1) …. 21.5 s 479(2) …. 21.6 s 480 …. 21.18 s 480A …. 12.15 ss 480A–480C …. 20.13 s 480D …. 20.8 s 480E …. 20.8 s 480J …. 20.8 s 480K …. 20.8 s 480L …. 20.8 s 480M …. 20.8 s 480N …. 20.8 s 481 …. 6.73, 20.14 ss 481–486D …. 20.14

s 481(2)–(3) …. 6.73 s 481(3) …. 20.16 s 483 …. 6.73 s 485 …. 6.73 s 486A …. 6.73, 20.14 s 486B …. 6.73, 20.14 s 486C …. 6.73, 20.14 s 486D …. 6.73, 20.14 s 486DA …. 20.19 s 486DB …. 20.19 s 487 …. 19.5, 21.2 s 489 …. 6.50 s 490 …. 6.73, 21.8 s 491 …. 6.73 s 493 …. 20.59 s 494 …. 20.87 s 495 …. 20.59, 20.87 s 496 …. 14.28 s 496C …. 14.19 s 499(3) …. 6.50 s 498 …. 6.73 s 500 …. 3.54, 21.21 s 502 …. 14.14 s 503 …. 14.14 s 516B …. 7.30 s 517A …. 6.46, 14.20 s 523 …. 6.7 s 524 …. 6.7

s 524A …. 6.7 s 525 …. 6.6, 6.26, 12.41 s 527E …. 2.67, 6.16, 7.11 s 527E(1) …. 6.16 s 527E(2) …. 6.16 s 528 …. 6.49, 12.41, 14.5, 14.13 Environment Protection and Biodiversity Conservation Regulations 2000 …. 6.25, 6.50, 6.55, 11.4, 14.22, 14.24, 14.85 cl 7.01 …. 14.14 cl 7.02 …. 14.14 cl 7.09 …. 14.21 cl 7.12 …. 14.24 Div 7.2 …. 14.17 Pt 2 …. 6.58 Pt 3 …. 6.27 Pt 4 …. 6.9 Pt 8 …. 14.29 Pt 8A …. 12.41 Pt 9A …. 14.5 Pt 12 …. 12.32, 12.40 reg 2.10 …. 6.14 reg 2A.01 …. 6.35 reg 2A.03 …. 6.36 reg 2B.01 …. 6.28, 12.17, 12.38 reg 3.06 …. 6.27 reg 4 …. 6.46 reg 4.03 …. 6.10 reg 4A.01 …. 6.10 regs 5.01–5.03 …. 6.50

reg 5.02 …. 6.56 reg 5.03A …. 6.53 reg 5.04 …. 6.55 reg 7.11 …. 14.22 reg 8A.03 …. 12.41 reg 8A.03(3) …. 12.41 reg 8A.03(4) …. 12.41 reg 8A.04 …. 12.41 reg 8A.06 …. 12.41 reg 8A.07 …. 12.41 reg 8A.08 …. 12.41 reg 8A.10 …. 12.41 reg 8A.11 …. 12.41 reg 8A.14 …. 12.41 reg 8A.15 …. 12.41 reg 8A.16 …. 12.41 reg 10.03A …. 12.35 reg 10.03H …. 12.27 reg 11.08 …. 12.34 reg 12.08 …. 12.34 reg 13.02 …. 12.40 Sch 1 …. 6.27 Sch 2 …. 6.10 Sch 3 Pt 1 …. 6.50 Sch 4 …. 6.55, 6.56, 11.9, 11.43 Sch 5 …. 12.17 Sch 5A …. 12.38 Sch 5B …. 12.38

Sch 6 …. 12.23 Sch 7 …. 12.25 Sch 7A …. 12.36 Sch 7B …. 12.36 Sch 7C …. 12.36 Sch 8 …. 12.29 Sch 9 …. 12.34 Environment Protection (Impact of Proposals) Act 1974 …. 4.46, 5.8, 6.2, 6.3, 6.7, 6.25, 6.46, 14.3, 19.18 s 5 …. 6.2 Environment Protection (Northern Territory Supreme Court) Act …. 15.63, 18.68 s 3 …. 18.68 s 4 …. 18.68 Environment Protection Nuclear Codes Act 1978 …. 5.5 Environment Protection (Sea Dumping) Act 1981 …. 4.26, 5.5, 5.12, 15.114, 15.138 s 9 …. 5.30 s 19 …. 15.137 Environmental Reform (Consequential Provisions) Act 1999 …. 6.46 Evidence Act 1995 s 138 …. 22.11 Excise Tariff Amendment (Ethanol and Biodiesel) Act 2015 …. 5.23 Excise Tariff Amendment (Product Stewardship for Waste Oil) Act 2000 …. 5.23 Federal Airports Corporation Act 1986 …. 11.22 Federal Airports Regulations 1992 …. 5.51 Federal Court of Australia Act 1976 Pt IVA …. 3.32, 19.50, 19.51 s 33C …. 19.50

s 33D …. 19.50 s 43 …. 21.23 Federal Court Rules O 73 …. 3.32 Financial Framework (Supplementary Powers) Regulations 1997 Sch 1AA …. 5.27 Fisheries Act 1952 …. 5.31 Fisheries Management Act 1991 …. 4.26, 5.31, 5.38 Pt 3 …. 7.38, 18.47 s 3 …. 9.19, 18.9, 18.44 s 3(1) …. 18.45 s 4 …. 18.9 s 13 …. 7.7, 18.9, 18.43 s 15 …. 18.43 s 15A …. 18.43 s 16 …. 18.9, 18.44 s 17 …. 7.35, 9.20, 18.43 s 17(5) …. 9.19, 18.43 s 17(5AA) …. 18.43 s 17(6) …. 9.19 s 17(6D) …. 9.19, 18.43 s 17(9) …. 9.17, 18.44 s 17(10) …. 9.21 s 22(3)(e) …. 2.26, 18.48 s 29(3) …. 18.47 s 31(10) …. 18.47 s 32(5)(e) …. 2.26 s 34 …. 18.47

s 48 …. 3.11 ss 61–81 …. 18.43 s 84(1)(ga)–(gd) …. 20.120 s 106 …. 20.120 s 106A …. 20.120 s 106AA …. 20.120 s 106AAA …. 20.120 Fisheries Management Act 1994 s 3 …. 7.26, 8.25 Fisheries Management Amendment (Supertrawler) Regulation 2015 …. 18.41 Fisheries Management Regulations 1992 …. 18.41 reg 4D …. 18.41 Great Barrier Reef Marine Park Act 1975 (GBRMPA) …. 5.38, 6.46, 12.18, 15.130 Pt II …. 12.18 Pt III …. 12.18 Pt V …. 15.130 s 2A …. 12.18 s 3AA …. 12.18 s 3AB …. 12.18 ss 3A–37A …. 12.18 s 5(1)(g) …. 5.38 s 30 …. 12.18 s 31 …. 12.18 s 32 …. 12.18 s 34 …. 12.18 s 35 …. 12.18 s 35A …. 12.18

s 38 …. 12.18 ss 38A–38D …. 12.19 s 38AA …. 15.130 s 38AB …. 15.130 s 38CA …. 12.19 s 38DD …. 15.130 s 38EE …. 15.130 s 38J …. 12.19 s 38N …. 12.19 s 39 …. 12.18 ss 39A–39U …. 12.19 ss 39W–39Y …. 12.18 s 39Z …. 12.18 s 39ZD …. 12.18 ss 59A–59M …. 12.20, 15.130 s 59F …. 12.20 ss 61A–61C …. 12.20 Great Barrier Reef Marine Park (Aquaculture) Regulations 2000 …. 12.19 cl 9 …. 12.19 Great Barrier Reef Marine Park (Environmental Management Charge — Excise) Act 1993 …. 12.19 Great Barrier Reef Marine Park (Environmental Management Charge — General) Act 1993 …. 12.19 Great Barrier Reef Marine Park Regulations 1983 …. 12.19 Pt 2 …. 12.18 reg 88RA …. 12.19 reg 88ZVA …. 12.19 Hazardous Waste (Regulation of Exports and Imports) Act 1989 …. 5.5, 5.12, 16.21

s 3 …. 16.21 s 4 …. 16.21 s 4A …. 16.21 s 4E …. 16.21 s 4F …. 16.21 s 4G …. 16.21 s 13C …. 16.21 s 17 …. 16.21 s 18A …. 16.21 s 18A(1) …. 16.20 s 18A(3) …. 16.20 s 18A(4) …. 16.20 s 34 …. 16.23, 16.24 s 35 …. 16.24 s 35A …. 16.24 s 36 …. 16.24 s 36(1)(a) …. 16.24 s 36(1)(b) …. 16.24 s 36(2) …. 16.24 s 37(1)(a) …. 16.24 s 37(1)(b) …. 16.24 s 37(2) …. 16.24 s 39 …. 16.24 s 39(1) …. 16.23 s 40 …. 16.24 s 40A …. 16.24 s 59 …. 20.59 Hazardous Waste (Regulation of Exports and Imports) (Waigani Convention) Regulations 1999 …. 16.22

s 4C …. 16.22 s 17(6) …. 16.22 s 17(7) …. 16.22 s 17A(5) …. 16.22 Historic Shipwrecks Act 1976 …. 5.5, 5.12 Illegal Logging Prohibition Act 2012 …. 18.76 s 7 …. 18.76 s 8 …. 18.76 s 9 …. 18.76 s 12 …. 18.76 s 14 …. 18.76 s 15 …. 18.76 s 18 …. 18.76 Illegal Logging Prohibition Regulations 2012 Pt 2 …. 18.76 Pt 4 …. 18.76 Sch 1 …. 18.76 Sch 2 …. 18.76 Industrial Chemicals (Notification and Assessment) Act 1989 …. 15.135 Pt 5A …. 15.135 s 3(a) …. 15.135 Income Tax Assessment Act 1997 …. 5.25 Div 31 …. 5.23 Subdiv 30–DB …. 5.23 Subdiv 30–E …. 5.23 Pts 3–50 …. 5.26 s 30.55 …. 5.23 s 40.755 …. 5.25

s 40.760 …. 5.25 s 43.20(5) …. 5.26 Intergovernmental Agreement on the Environment 1992 …. 5.64, 5.65, 8.15, 9.72, 15.2, 15.14 art 2.5.2 …. 4.10, 5.11 s 2.2 …. 5.65 s 3.3 …. 5.64 s 3.4 …. 5.64 s 3.5.2 …. 8.76 s 3.5.4 …. 8.83 Sch 2 …. 9.72 Sch 4 s 26 …. 15.4 Sch 5 …. 5.64 Sch 6 …. 5.64 Kyoto Protocol and Carbon Credits (Carbon Farming Initiative) Act 2011 …. 17.46 Lands Acquisition Act 1989 s 24(1)(a) …. 22.70 s 42 …. 22.70 Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 …. 5.12, 5.15 Minerals Resource Rent Tax Act 2012 …. 5.23 ss 225.1–225.25 …. 5.23 Motor Vehicles Standards Act 1989 …. 15.4 s 5 …. 15.4 s 7 …. 15.4 s 8 …. 15.4 Murray–Darling Basin Act 1993 …. 18.31 Murray–Darling Basin Agreement …. 5.22

Mutual Recognition Act 1992 …. 7.6, 16.12 s 3 …. 7.6 s 10 …. 7.6 s 11 …. 7.6 Sch 2 …. 7.6 National Environment Protection (Air Toxics) Measure 2004 …. 15.6, 15.12 National Environment Protection (Ambient Air Quality) Measure 1998 …. 15.6, 15.7 National Environment Protection (Assessment of Site Contamination) Measure 1999 …. 15.6, 15.8 cl 15 …. 15.8 National Environment Protection Council Act 1994 …. 15.3 Pt 4 …. 15.15 Pt 5 …. 15.15 s 6(1) …. 15.4 s 7 (1) …. 15.14 s 7 (2) …. 15.14, 15.15 s 11 …. 15.15 s 14(1) …. 15.4 s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6, 15.15 s 18 …. 15.6 s 19 …. 15.6 s 21 …. 15.6 s 23 …. 15.16 s 24 …. 15.16 s 28(1) …. 15.6

Sch …. 5.65 National Environment Protection (Diesel Vehicle Emissions) Measure 2001 …. 15.6, 15.11 National Environment Protection Measures (Implementation) Act 1998 …. 5.46 Pt 2 …. 15.15 Pt 3 …. 15.15 s 9 …. 15.15 ss 12–15 …. 5.46 National Environment Protection (Movement of Controlled Waste between States and Territories) Measure 1998 …. 15.6 cl 5 …. 15.9 cl 8 …. 15.9 cl 9 …. 15.9 Sch 1 …. 15.9 Sch 2 …. 15.9 National Environment Protection (National Pollutant Inventory) Measure 1998 …. 15.6, 15.10 cl 7 …. 15.10 National Environment Protection (Used Packaging Materials) Measure 2011 …. 15.6, 15.13, 16.10 cl 3 …. 16.10 cl 7 …. 16.10 cl 9 …. 15.13, 16.10 cl 10 …. 15.13 Pt 4 …. 16.10 National Greenhouse and Energy Reporting Act 2007 (NGERA) …. 5.12, 5.20, 20.11 s 4 …. 5.5 s 5 …. 5.7

ss 29–38 …. 20.14 s 45 …. 20.19 s 46 …. 20.19 National Parks and Wildlife Conservation Act 1975 …. 5.34 National Road Commission Act 1991 …. 15.4 National Water Commission Act 2004 …. 5.36 National Water Resources (Financial Assistance) Act 1978 …. 5.22 Native Title Act 1993 …. 2.10, 2.13 s 24MD(2)(b) …. 2.10 s 211 …. 2.13, 12.34 Natural Heritage Trust of Australia Act 1997 …. 5.5, 5.22, 5.27, 5.35 ss 10–14 …. 5.27 s 15 …. 5.27 ss 15–17 …. 5.22 s 16 …. 5.27 s 17 …. 5.27 s 19 …. 5.27 s 20 …. 5.27 Natural Resources Management (Financial Assistance) Act 1992 …. 5.22, 5.35, 13.4 Norfolk Island Act 1979 …. 5.1 Northern Territory (Self-Government) Act 1978 …. 5.39 s 35 …. 5.1 Northern Territory (Self-Government) Regulations 1978 reg 14 …. 5.1 Nuclear Non-Proliferation (Safeguards) Act 1987 …. 18.67 Offshore Minerals Act 1994 …. 4.26, 5.30 s 3 …. 5.30 s 118 …. 18.59

s 177 …. 18.59 s 254 …. 18.59 s 304 …. 18.59 Offshore Petroleum Act 2006 …. 5.32 Offshore Petroleum and Greenhouse Gas Storage Act 2006 …. 4.26, 4.28, 5.5, 5.30, 15.127 Pt 6.9 …. 17.34 s 5 …. 5.30 s 21 …. 17.34 s 28 …. 17.34 s 29 …. 17.34 s 98 …. 17.33 s 135 …. 17.33 ss 192–208 …. 17.34 ss 312–315 …. 17.34 ss 318–354 …. 17.33 ss 355–401 …. 17.33 s 370 …. 17.34 ss 376–378 …. 17.34 ss 379–382 …. 17.34 s 392 …. 17.34 ss 402–410 …. 17.33 ss 411–421 …. 17.33 ss 422–425 …. 17.33 s 453 …. 17.34 s 464 …. 17.34 s 571 …. 17.34 s 571A …. 17.34 ss 572A–572F …. 15.127

ss 585–590A …. 15.127 Sch 4 …. 5.23 Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 …. 17.34 Pt 2 …. 17.34 reg 3 …. 17.34 regs 6–8 …. 17.34 reg 10A …. 17.34 Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Act 2003 …. 5.23 Offshore Petroleum and the Environment Protection and Biodiversity Conservation Act 1999 …. 6.15 Ozone Protection Act 1989 …. 15.133 Ozone Protection and Synthetic Greenhouse Gas Legislation Amendment Act 1989 …. 15.133 Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 …. 5.5, 5.12, 15.133, 16.6 s 3 …. 15.133 s 13(9) …. 15.133 s 41(3) …. 15.133 Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 …. 15.133 Petroleum (Australia–Indonesia Zone of Cooperation) Act 1990 …. 4.25, 5.32 Petroleum Resource Rent Tax Assessment Act 1987 …. 5.23 Petroleum (Submerged Lands) Act 1967 …. 2.30 Petroleum (Timor Sea Treaty) Act 2003 …. 4.25 Product Grants and Benefits Administration Regulations 2000 …. 5.23 Product Stewardship Act 2011 …. 2.53, 5.12, 5.24, 5.63, 7.5, 15.13, 16.11, 16.13 Pts 2–4 …. 16.13

Pt 3 …. 16.14 s 3 …. 16.13 s 4 …. 16.14 s 4(3) …. 5.9 s 9 …. 7.19 s 13 …. 16.14 s 19(1) …. 16.14 s 19(2) …. 16.14 s 19(3A) …. 16.11 s 21 …. 16.14 s 21(3) …. 16.14 s 22 …. 16.14 s 27 …. 16.14 s 37(1) …. 16.13 s 37(2) …. 16.13 Product Stewardship (Oil) Act 2000 …. 5.23 Product Stewardship (Televisions and Computers) Regulations 2011 …. 5.24, 16.14 Pt 5 …. 16.14 reg 1.03 …. 16.14 reg 1.04 …. 16.14 regs 2.01–2.03 …. 16.14 reg 3.01 …. 16.14 reg 3.02 …. 16.14 reg 3.03 …. 16.14 reg 3.04 …. 16.14 reg 3.05 …. 16.14 reg 3.06 …. 16.14 Protection of the Sea (Civil Liability) Act 1981 …. 5.12, 15.114

Pt II …. 15.126 s 9 …. 15.121 s 21 …. 15.122 s 22 …. 15.122 s 22A …. 15.122 Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 …. 15.129 s 3 …. 15.129 s 6 …. 15.129 s 8 …. 15.129 s 9 …. 15.129 Protection of the Sea (Oil Pollution Compensation Fund) Act 1993 …. 15.114 s 31(1) …. 15.122 s 46A …. 15.123 s 46E …. 15.123 s 46F …. 15.124 s 46G …. 15.124 s 46J …. 15.123 s 46K …. 15.123 s 46L …. 15.123 ss 46M–46Q …. 15.123 ss 46S–46U …. 15.123 s 46V …. 15.123 s 46W …. 15.123 Protection of the Sea (Powers of Intervention) Act 1981 …. 5.12, 15.114, 15.119 ss 8–11 …. 15.119 s 8(2)(a) …. 15.119 s 9(2)(a) …. 15.119

s 10(3)(a) …. 15.119 Protection of the Sea (Prevention of Pollution from Ships) Act 1983 …. 4.26, 5.5, 5.12 15.114, 15.115, 15.116, 15.126, 15.128 Pt II …. 15.117 Pt III …. 15.117 Pt IIID …. 15.128 s 3(3) …. 4.44 s 6 …. 15.126 s 9 …. 5.30, 15.126, 20.41 s 9(1B)(b)(i) …. 15.126 s 10 …. 15.126 s 26A …. 15.128 s 26AB …. 15.128 s 26B …. 15.128 s 26BC …. 15.128 s 26D(1)–(5) …. 15.128 s 26D(5)–(7) …. 15.128 s 26DAA …. 15.128 s 26F …. 15.128 s 26FA …. 15.128 s 26FB …. 15.128 s 26FC …. 15.128 s 26FD …. 15.128 s 26FE …. 15.128 s 27A …. 15.120 s 28 …. 20.59 Protection of the Sea (Shipping Levy) Act 1981 s 4 …. 15.121 s 5 …. 15.121

Quarantine Act 1908 …. 4.39, 14.7, 14.8 s 4 …. 14.8 ss 11C–11E …. 14.8 ss 52–55A …. 14.8 Racial Discrimination Act 1975 …. 2.10 Regional Forest Agreements Act 2002 …. 5.7, 6.38, 9.28 s 6 …. 11.2, 18.72 Renewable Energy (Electricity) Act 2000 …. 5.5 Resource Assessment Commission Act 1989 s 8 …. 8.16 River Murray Water Agreement Act 1983 …. 5.22 Seas and Submerged Lands Act 1973 …. 5.12, 5.29 s 16 …. 5.30 Soil Conservation (Financial Assistance) Act 1986 …. 5.22 South Pacific Nuclear Free Zone Treaty Act 1986 …. 5.38, 15.131, 18.67 s 4(1) …. 15.131 ss 8–13 …. 15.131 States Grants (Air Quality Monitoring) Act 1976 …. 5.22 States Grants Nature Conservation Act 1974 …. 5.22 States Grants (Water Resources Measurement) Act 1970 …. 5.22 Statute of the International Court of Justice …. 4.14, 4.19 art 38(1) …. 4.9 Tasmanian Native Forestry Agreement Act 1979 …. 5.22 Telecommunications Act 1997 …. 6.46 s 9 …. 5.52 s 10 …. 5.52 s 11 …. 5.52 s 15 …. 5.52

s 17 …. 5.52 s 18 …. 5.52 s 27 …. 5.52 s 28 …. 5.52 s 37 …. 5.52 s 44 …. 5.49 s 50 …. 5.52 s 51 …. 5.52 s 55 …. 5.52 Sch 3 …. 5.52 Sch 3 cl 28 …. 6.46 Torres Strait Fisheries Act 1984 …. 4.25 Torres Strait Treaty 1978 …. 4.25 Trade Practices Act 1974 …. 2.41, 3.32, 3.34, 6.73 s 45D …. 2.41 s 45DB …. 2.41 s 51AA …. 2.41 Urban and Regional Development (Financial Assistance) Act 1974 …. 5.22 Wastes (Regulation of Exports and Imports) Act 1989 …. 5.8 Water Act 2007 …. 5.6, 5.7, 5.12, 5.38, 7.57, 18.29, 18.31, 18.33, 20.11 Pt 2 Div 4 …. 2.26 Pt 2A …. 18.34 Pt 2AA …. 18.36 Pt 6 …. 18.33 s 4 …. 18.33, 18.35 s 6 …. 18.33 s 9 …. 5.6, 5.38 s 9A …. 5.6, 5.38

s 18H …. 5.22 s 20 …. 18.34 s 21 …. 18.34 s 21(5) …. 18.34 s 54 …. 18.35 s 55 …. 18.35 s 56 …. 18.35 ss 63–70 …. 18.35 ss 74–86 …. 18.36 s 86AA(3) …. 18.36 s 86AD …. 18.36 s 86A(1) …. 18.34 s 86A(2) …. 18.34 s 105(2) …. 18.33 s 105(3) …. 18.33 s 105(4) …. 18.33 s 105(5) …. 18.33 ss 146–154 …. 20.14 s 163 …. 20.19 s 164 …. 20.19 s 169 …. 20.91 Sch 1 …. 18.33 Sch 3 …. 18.36 Sch 3 cl 3 …. 18.36 Sch 3 cl 4 …. 18.36 Sch 3 cl 6 …. 18.36 Sch 3A …. 18.22, 18.36 Sch 3A Pt 2 …. 18.36

Water Efficiency Labelling and Standards Act 2005 …. 18.38 s 8 …. 5.7, 18.38 s 11 …. 5.7 s 18 …. 18.38 ss 26–33 …. 18.38 s 34 …. 18.38 s 35 …. 18.38 Wildlife Protection (Regulation of Exports and Imports) Act 1982 …. 14.4 World Heritage Properties Conservation Act 1983 …. 5.14, 5.49, 12.11, 19.43 s 8 …. 5.28 s 9 …. 5.13, 5.28 s 9(1) …. 5.13 s 9(1)(a)–(g) …. 5.13, 5.15 s 9(1)(h) …. 5.13 s 9(2) …. 5.13 s 11 …. 5.28 s 13 …. 8.37 s 16 …. 5.15

Australian Capital Territory Administrative Decisions (Judicial Review) Act 1989 …. 22.19 s 4A …. 19.20 ss 5–7 …. 22.20 ss 13–15 …. 22.21 Australian Capital Territory Environmental Offsets Policy 2015 …. 13.42 Building Act 2004 s 143 …. 8.49 Civil and Administrative Tribunal Act 2008 …. 2.72, 10.70

s 22Q …. 15.88 s 67A …. 15.88 s 68 …. 15.88 Crimes Act 1900 s 394 …. 15.96 Development Act 2007 …. 13.15 Domestic Animals Act 2000 s 81 …. 14.36 Enforcement of Public Interests Ordinance 1973 …. 19.47 Environment Protection Act 1997 Dictionary …. 15.27, 15.28, 15.29 Pt VI …. 15.43 Pt VII …. 15.43 Pt IX …. 15.43 s 2(1)(b) …. 16.3 s 3 …. 15.25, 15.26 s 3D …. 8.21 s 4 …. 15.24, 15.25, 15.26, 16.25 s 5 …. 15.24 s 8(2) …. 15.26 s 9 …. 3.16 s 13 …. 15.4 s 14 …. 15.4 s 15 …. 15.6, 15.99 s 16 …. 15.6 s 17 …. 15.4 s 18 …. 15.4 ss 19–21 …. 15.61

s 20 …. 15.4 s 21A …. 16.26 s 21B …. 16.26 s 22 …. 3.50, 15.35 s 22(2) …. 15.35 s 22(3) …. 3.50, 15.6 s 23 …. 15.37 s 24 …. 15.39 ss 24–30 …. 15.38 s 25 …. 15.40 s 27(1) …. 15.4 ss 28–32 …. 15.38 s 30 …. 15.38 s 30A …. 15.93 ss 31–33 …. 15.41 s 31(4) …. 15.93 s 33 …. 15.36, 15.42 s 34 …. 15.72 s 35 …. 15.72 s 36 …. 15.38, 15.72 s 37 …. 15.38 ss 38–41 …. 15.74 s 38(1) …. 15.43 s 39(c)(i) …. 15.41 s 42 …. 15.59, 15.111 ss 42–45 …. 15.59 s 42(2) …. 15.59 s 43 …. 15.59

s 43(1) …. 15.111 s 44 …. 15.111 s 45 …. 3.50, 15.111 s 46(b) …. 15.47 s 48 …. 15.48, 15.61 s 51 …. 15.75 s 51(a)(ii) …. 15.46 s 52 …. 15.62, 15.79 s 55 …. 15.79 s 57 …. 15.62 s 58 …. 15.62 s 59 …. 15.61 s 60 …. 15.64 ss 60–65 …. 15.57, 15.63 s 61 …. 15.66 s 61(c) …. 15.39 s 63 …. 15.63, 15.79 s 63(1)(a)(i) …. 15.79 s 63(1)(a)(ii) …. 15.79 s 63(2) …. 15.79 s 63(3) …. 15.79 s 66 …. 15.79 s 67 …. 15.64 s 68 …. 15.43 ss 68–72 …. 15.46 s 69 …. 15.46 s 71 …. 15.46 s 71(3) …. 15.48

s 74 …. 15.80, 20.69 s 75 …. 15.87 s 76 …. 15.81 s 77 …. 15.81 s 78 …. 15.86 s 78(1) …. 15.88 s 78(8) …. 15.86 s 79 …. 15.88 ss 80–84 …. 15.101 ss 85–91 …. 15.77 s 88 …. 15.77 s 89 …. 15.77 s 90 …. 15.77 s 91C(8) …. 15.111 s 91D(4) …. 15.111 s 92 …. 15.60 s 125 …. 15.91 ss 125–126 …. 15.91 s 126 …. 15.91, 15.111 s 127(1) …. 15.113 s 127(1)(a) …. 15.113 s 127(1)(b) …. 15.113 s 127(2) …. 21.2 s 128 …. 15.113 s 128(1) …. 15.113 s 128(1)(c) …. 15.113 s 128(1)(d) …. 15.113 s 128(1)(e) …. 15.113

s 131(b) …. 21.13 s 134 …. 15.111 ss 135–136B …. 15.88 s 135(r)–(u) …. 15.47 s 135(5) …. 15.88 s 136B …. 16.46 s 137 …. 15.104 ss 137–141 …. 15.26 s 138 …. 15.104 s 139 …. 15.104 s 141 …. 15.104 s 142 …. 15.104 s 143 …. 3.50 s 146 …. 20.54 s 146(6) …. 20.54 s 147 …. 20.59 s 147(2)(a) …. 20.86 s 149 …. 15.57 s 153 …. 20.71 s 153(1) …. 20.86 s 153(2) …. 20.74 s 154 …. 20.81 s 155 …. 20.39, 20.42 s 157(1) …. 15.112 s 157(1)(a) …. 15.112 s 157(1)(b) …. 15.112 s 157(1)(c) …. 15.112 s 157(1)(d)(i) …. 15.112

s 157(1)(d)(ii) …. 15.112 s 159A …. 15.10 Sch 1 …. 15.59, 15.111, 16.17 Sch 3 …. 15.88, 16.46 Environmentally Hazardous Chemicals Act 1985 s 34 …. 15.77 Fisheries Act 2000 s 3 …. 8.28 Heritage Act 2004 …. 10.41 s 3 …. 8.30 ss 62–64 …. 20.4 s 69 …. 20.13 s 70 …. 20.13 Human Rights Act 2004 …. 2.46 Human Rights Commission Act 2005 …. 2.46 National Environment Protection Council Act 1994 …. 15.3 s 5(1) …. 15.4 s 6(1) …. 15.4 s 13(1) …. 15.4 s 13(3) …. 15.4 s 14 …. 15.4 s 14(3) …. 15.4 Nature Conservation Act 1980 ss 73–82 …. 13.33 Nature Conservation Act 2014 …. 14.36 Ch 2 …. 14.36 Ch 3 …. 14.36 Ch 7 …. 14.36

Ch 9 …. 12.76 Ch 11 s 262 …. 14.36 Ch 12 s 310 …. 14.36 Dictionary …. 14.79 Pt 4.5 …. 14.79 Pt 5.3 …. 14.36 Pt 8.3 …. 12.67 Pt 9.4 …. 13.15 Pt 11.2 …. 14.80 Pt 14.1 s 331 …. 14.36 s 6 …. 14.36 s 9 …. 14.36 s 10 …. 14.36 s 11 …. 14.36 s 12 …. 14.36 s 13 …. 14.36 s 14 …. 14.36 s 15 …. 14.36 s 16 …. 14.36 s 17 …. 14.36 s 18 …. 14.36 s 19 …. 14.36 s 23 …. 14.36 s 48 …. 14.36 s 61 …. 14.36 s 64 …. 14.79 s 70 …. 14.79 s 81 …. 14.79

s 86 …. 14.79 s 91 …. 14.79 s 98 …. 14.36 s 100(a)(B)(iii) …. 14.79 s 100B …. 14.79 s 101 …. 14.36 s 101(3)(d) …. 14.79 s 107 …. 14.79 s 109 …. 14.36 s 111 …. 14.36 s 112(1) …. 14.36 s 112(2) …. 14.36 s 112(3) …. 14.36 s 113 …. 14.36 s 117 …. 14.36 s 117(a) …. 14.36 s 124 …. 14.36 s 153 …. 14.36 s 157 …. 14.36 s 169 …. 13.15 s 176 …. 12.73 s 179 …. 12.67 s 229 …. 12.76 s 233 …. 13.15 s 234 …. 13.15 ss 235–240 …. 13.15 s 238(4) …. 13.15 s 241 …. 12.76, 13.15

s 242 …. 13.15 s 250 …. 12.76 s 252 …. 13.15 s 253 …. 12.69 s 254 …. 12.69 ss 256–258 …. 14.36 s 317 …. 14.79 s 318 …. 14.79 s 331 …. 14.81 s 332 …. 14.81 s 336 …. 14.81 Planning and Development Act 2007 …. 9.7, 10.2, 10.40, 11.4, 11.55 Dictionary …. 10.40, 10.41 Pt 6A …. 13.42 Pt 8.1 …. 10.40 Pt 8.2 …. 10.40 Pt 8.3 …. 10.40 Pt 10.4 …. 12.67 s 7 …. 10.2 s 7(1) …. 11.55 s 49 …. 9.1, 10.39 s 50 …. 9.33 s 50A …. 10.40 s 52 …. 9.62 s 54 …. 10.8 s 54(1) …. 10.40 s 54(3) …. 10.40 s 55 …. 10.8

s 62(2) …. 9.62 ss 69–72 …. 11.54 ss 74–87 …. 11.54 ss 87A–105 …. 11.54 s 96(1) …. 11.54 ss 99–101 …. 9.62 s 112(3) …. 10.40 s 113(1) …. 10.2, 10.40 s 114(1) …. 10.40 s 115 …. 10.40 s 116 …. 10.41 s 119 …. 10.41 s 119(2) …. 8.54 s 119(3) …. 8.54 s 120 …. 10.41 s 120(c) …. 10.40 s 120(f) …. 8.54 s 121 …. 10.40 s 122(2)(c) …. 11.55 s 123 …. 10.40, 11.55 s 124 …. 10.40, 11.8 s 124A …. 10.40, 11.8, 11.55, 13.42 s 125 …. 10.40 s 127 …. 10.40, 11.55 s 128(1) …. 10.41 s 128(1)(b)(vi) …. 10.40 s 128(2) …. 10.41 s 128(3) …. 10.41

s 129 …. 10.40, 10.41, 11.56 s 129(d) …. 10.40 s 130 …. 10.40 s 132 …. 10.40 s 136 …. 10.5 ss 138AA–138AD …. 10.40 s 138AA(2) …. 11.55 s 138AB(4) …. 10.40 s 138A(2) …. 10.40 s 147A …. 10.40 ss 147A–149 …. 14.79 s 148 …. 10.6 s 149 …. 10.6 s 151 …. 10.6 s 156 …. 10.40 s 156(6) …. 10.40 s 157 …. 10.40 s 158 …. 10.40 ss 158–161 …. 10.58 s 158(1A) …. 10.40 s 158A …. 10.40 s 158B …. 10.40 s 159 …. 10.40 s 159(2) …. 10.40 s 165 …. 10.41 s 165(2)(d) …. 10.40 s 165(3)(l) …. 10.47 s 165(4) …. 10.41

ss 170–174 …. 10.41 s 191 …. 10.70 s 191(1)–(3) …. 10.69 s 193(5)(b) …. 10.69 s 193(7) …. 10.69 s 209 …. 11.56 s 210 …. 11.55 s 211 …. 11.55 s 211(1) …. 10.40 ss 212–215 …. 11.9, 11.56 s 213 …. 11.99 s 213(2) …. 11.56 s 216 …. 11.13, 11.56 ss 217–220 …. 11.56 s 219 …. 10.40 ss 221–223 …. 11.56 s 224 …. 11.56 s 225 …. 11.56 s 225A …. 11.14 s 226 …. 11.56 s 227 …. 11.56 ss 228–233 …. 11.12, 11.56 s 315 …. 12.44 s 316 …. 12.44 s 317 …. 12.44 s 317(2) …. 12.67 s 319 …. 12.73 s 323 …. 12.67

s 407 …. 10.70 s 408 …. 10.70 s 408(1) …. 10.70 s 408(2) …. 10.41 s 409 …. 10.70 s 409(3) …. 10.70 s 410 …. 10.70 Sch 1 …. 10.5, 10.70, 19.5, 19.23 Sch 1 column 5 …. 10.70 Sch 3 …. 12.44, 12.67 Sch 4 …. 10.40, 11.55 Planning and Development Regulations 2008 …. 10.2 reg 28 …. 10.40 reg 29 …. 10.41 reg 50 …. 11.13 reg 50A …. 11.55 reg 54 …. 11.56 reg 55 …. 11.99 reg 350 …. 10.70 reg 351 …. 10.70 Plastic Shopping Bags Ban Act 2010 …. 16.12 s 6 …. 16.12 s 7 …. 16.12 Radiation Protection Act 2006 …. 15.131 s 12 …. 15.131 Tree Protection Act 2005 …. 10.2, 13.33 s 3 …. 8.30 Waste Minimisation Act 2001 …. 16.10

Div 2.1 …. 15.46 s 6 …. 8.27 Water Efficiency Labelling and Standards Acts 2015 …. 18.38 Water Quality Environment Protection Policy 2008 …. 15.24 Water Resources Act 2007 …. 2.30, 18.29

New South Wales Aboriginal Land Rights Act 1983 …. 14.64 Pt 4A …. 14.64 s 47 …. 14.64 s 48 …. 14.64 s 117(2) …. 14.64 Access Licence Dealings Principles Order 2004 …. 18.29 Biosecurity Act 2015 …. 3.46, 14.40 s 6 …. 3.46 s 15 …. 14.40 Botany and Randwick Sites Development Act 1982 …. 10.67 Catchment Management Authorities Act 2003 …. 7.57, 14.97 s 20 …. 9.42 Civil Liability Act 2002 …. 3.30, 3.37 s 5 …. 3.38 s 5A …. 3.38 s 5B(1) …. 3.37 s 5D …. 3.36 s 40 …. 3.38 s 42 …. 3.37, 17.51 s 43 …. 3.37 s 43A …. 3.38 Civil Procedure Act 2005

s 11 …. 21.29 s 58 …. 21.37 s 60 …. 21.37 Clean Air Act 1961 s 14 …. 20.33 Clean Waters Act 1970 …. 2.6, 15.20, 20.51, 20.66 s 5 …. 20.51 s 29(2)(a) …. 20.66 Coastal Protection Act 1979 …. 3.45, 17.49, 17.51, 18.52, 18.54, 18.55 Pt 4C …. 3.45 s 3 …. 18.53 s 4 …. 18.54 s 6 …. 18.55 s 12 …. 18.56 s 13 …. 18.56 ss 37–47 …. 18.54 s 37A …. 18.54 s 54A …. 18.54 s 55 …. 18.54 ss 55A–55L …. 18.54 s 55K …. 18.54 s 55M …. 18.55 s 55O …. 18.55 ss 55O–55ZH …. 18.55 s 55P …. 18.55 s 55R …. 18.55 s 55VC …. 18.55 s 55W …. 18.55

s 55ZA …. 18.55 s 55ZB …. 18.55 s 55ZC …. 18.55 s 56A …. 18.55 Coastal Protection Regulation 2011 Pt 3 …. 18.55 reg 5 …. 18.54 reg 6 …. 18.54 Constitution Act 1902 …. 5.39 Contaminated Land Management Act 1997 …. 16.30 Ch 7 Pt 8 …. 16.47 s 4 …. 15.26 s 5 …. 16.25 s 6 …. 16.35 s 7 …. 16.35 s 10 …. 16.34 s 11 …. 16.34, 16.35 s 12 …. 16.34 s 13 …. 16.35 s 14 …. 20.4 ss 14–16 …. 16.35 s 17 …. 15.81, 16.36, 20.4 s 28 …. 16.36 ss 48–53 …. 16.44 s 53B …. 16.30, 16.45 s 53B(3) …. 16.45 s 54 …. 16.44 s 59 …. 16.36

s 60 …. 16.34 s 60(3) …. 16.34 s 60(5) …. 16.34 s 60(9) …. 16.34 s 61 …. 15.88, 16.35, 16.47, 20.4 s 62 …. 16.47 s 520 …. 16.47 Sch 2 …. 16.47 Conveyancing Act 1919 …. 17.51 s 88AB …. 3.9, 3.10 s 89 …. 7.51 Crimes Act 1900 s 556A …. 20.93 Crimes (Sentencing Procedure) Act 1999 …. 20.93, 20.117 s 3A …. 20.92 s 5 …. 20.98 s 10 …. 20.112 s 21A(2)(g) …. 20.107 s 21A(3) …. 20.106 Criminal Procedure Act 1986 s 257C …. 20.124 s 257D …. 20.124 Crown Lands Act 1989 …. 9.7, 9.12, 12.61 Pt 4 Div 3 …. 3.9 s 11 …. 9.12 s 12 …. 7.26 ss 31–34 …. 9.12 s 35 …. 9.12

s 85 …. 9.12 s 91 …. 9.12 s 112 …. 7.35 s 135 …. 12.2 s 140 …. 13.63 Crown Lands (Continued Tenures) Act 1989 …. 13.64 Sch 6 …. 13.64 Crown Lands (Continued Tenures) Regulations Sch 2 cl 14 …. 13.64 Cumberland Oval Act 1981 …. 10.67 Electricity Supply Act 1995 …. 13.21 Div 2A …. 13.21 Pt 8A …. 4.42 s 48 …. 13.21 s 53C …. 13.21 Electricity Supply (Safety and Network Management) Regulation 2014 reg 36 …. 13.21 reg 37 …. 13.21 Endangered Fauna (Interim Protection) Act 1991 …. 14.38 Energy and Utilities Administration Act 1987 Pt 6A …. 18.39 s 34A …. 18.39 s 34Q(1) …. 18.39 s 34S …. 18.39 s 34V(3) …. 18.39 Environmental Planning and Assessment Act 1979 (EPAA) …. 2.55, 2.63, 5.51, 7.28, 8.31, 9.12, 10.2, 10.13, 11.4, 11.22, 12.61, 13.20, 13.21, 13.43, 13.44, 13.53, 13.57, 14.38, 14.94, 15.61, 15.89, 16.29, 18.40, 18.54, 18.55, 18.56, 18.62, 19.39, 20.59, 21.12, 21.33, 21.36, 22.28, 22.48, 22.78

Pt 3A …. 11.33, 13.54 Pt 4 …. 10.8, 10.18, 10.21, 10.61, 10.70, 11.16, 11.21, 11.22, 11.34, 11.35, 11.37, 11.39, 13.16, 13.59 Pt 4 Div 2 …. 10.9 Pt 4 Div 4.1 …. 11.16, 11.33 Pt 4 Div 5 …. 10.22, 18.13 Pt 4 Div 10 …. 11.23 Pt 5 …. 6.34, 9.29, 10.8, 10.18, 10.61, 11.2, 11.16, 11.21, 11.22, 11.23, 11.30, 11.31, 11.34, 11.37, 11.38, 11.40, 13.59, 18.66, 18.76, 22.47, 22.64 Pt 5 Div 5 …. 11.2, 11.23, 18.47 Pt 5.1 …. 11.16, 11.33 Pt 5A …. 9.33, 18.9 s 4 …. 10.2, 10.18, 11.29, 19.23 s 4(1) …. 9.44, 10.19 s 4(6) …. 9.44 s 4(6A) …. 9.44 s 5 …. 7.28, 9.1, 11.90, 14.38, 21.30 s 5(a)(i) …. 18.78 s 5A …. 10.15, 10.19, 11.22, 11.24, 11.36, 14.94 s 5A(2)(b) …. 11.27 s 5A(2)(c) …. 11.27 s 5A(2)(d)(ii) …. 11.27 s 5B …. 10.17, 10.19 s 5D …. 10.19 s 6 …. 9.33 s 7 …. 10.5 s 23D …. 11.12, 11.99 s 23D(1)(b) …. 11.34

s 23D(1)(b)(iv) …. 11.32 s 23D(1)(c) …. 10.13 s 23G …. 10.13 s 26 …. 9.38, 9.55, 10.2, 15.38 s 28 …. 3.9, 7.51, 13.57 s 29 …. 11.17 s 29A …. 10.9 s 32 …. 14.41 s 33A …. 9.49 s 33B …. 9.49 s 34A …. 9.4, 9.48, 9.49 s 35 …. 22.40 s 36 …. 9.43, 15.38 s 37 …. 9.39, 15.38 s 37B …. 18.54 s 38 …. 9.39, 9.44, 9.48, 10.9 s 39 …. 15.38 s 45 …. 14.40 s 51 …. 15.38 s 51A …. 15.38 s 54 …. 9.48 s 56 …. 14.40 s 56(3) …. 9.49 s 57 …. 9.49, 9.55, 14.41 s 58I …. 14.41 s 59 …. 9.55 s 69 …. 15.38 s 70 …. 14.40, 15.38

s 71 …. 14.41 s 72 …. 15.38 s 73 …. 9.2 s 73A …. 9.49 s 75X …. 22.28 s 76(2) …. 10.8 s 76(3) …. 10.5, 10.8 s 76A …. 9.40, 10.5 s 76A(5) …. 10.8 s 76B …. 10.5 s 78A(8) …. 14.94, 14.96 s 78A(8)(a) …. 10.19, 11.16 s 78A(8)(b) …. 10.19, 11.16, 11.28, 11.35 s 78A(8A) …. 11.34 s 79 …. 11.39 s 79(1) …. 10.9 s 79(5) …. 10.9, 11.39 s 79A …. 10.9 s 79B …. 10.5, 14.95, 18.14 s 79B(3) …. 10.20, 11.36 s 79B(4) …. 10.20 s 79B(5) …. 10.20 s 79B(8A) …. 10.20, 13.48 s 79B(8B) …. 10.20, 13.48 s 79C …. 7.28, 8.31, 10.10, 10.11, 10.12, 10.13, 10.14, 10.15, 10.16, 10.18, 10.23, 10.24, 10.27, 11.34, 14.97 s 79C(1) …. 10.19 s 79C(2) …. 10.16 s 79C(4) …. 10.16

s 80 …. 10.16 s 80(3) …. 10.16, 10.24 s 80(7) …. 11.14 s 80(10)(b) …. 11.39 s 80A …. 10.16, 13.45 s 80A(2) …. 10.16 s 80A(4) …. 10.23 s 80A(6) …. 10.23 ss 82A–82D …. 10.69, 22.2 s 84A …. 10.5 s 89 …. 10.7 s 89C …. 11.33 s 89C(2) …. 10.61 s 89C(3) …. 10.61, 11.33 s 89D …. 10.62, 11.34 s 89E(2) …. 10.5, 10.62, 11.33 s 89E(3) …. 10.5, 10.62, 11.33 s 89E(5) …. 11.33 s 89F …. 10.9, 11.34 s 89H …. 11.34 s 89I …. 11.37 s 89J …. 11.33 s 89J(1)(e) …. 10.21 s 89K …. 11.33 s 90(2) …. 10.22 s 91 …. 10.22, 18.13 s 91A(2) …. 10.22 s 91A(3) …. 10.22

s 91A(4) …. 10.6, 10.22 s 93(2) …. 10.22 s 93A …. 10.6, 10.22 s 93F …. 9.30, 10.47, 13.44 ss 93F–93L …. 10.48 s 93F(2)(f) …. 10.47, 10.48, 10.25, 10.26, 10.50 s 93F(3)(g) …. 13.44, 13.55 s 93I(3) …. 13.45 s 94 …. 8.84, 13.44, 13.45 s 94(1) …. 10.25 s 94(3) …. 10.25 s 94(3)(b) …. 10.25 s 94(4) …. 10.25 s 94(5)(a) …. 10.25 s 94(5)(b) …. 10.25 s 94A(1) …. 10.26 s 94A(2) …. 10.26 s 94A(2A) …. 10.26 s 94A(3) …. 10.26 s 94B …. 10.25 s 94E …. 10.25, 10.26 s 94EA …. 10.25 s 94EAA …. 10.25 s 94EB …. 10.25 s 94EC …. 10.25 s 96 …. 10.27, 10.63, 10.69 s 96(1) …. 10.27 s 96(1A) …. 10.27

s 96(2)(a) …. 10.27 s 96(2)(b) …. 10.27 s 96(2)(c) …. 10.27 s 96(2)(d) …. 10.27 s 96(3) …. 10.27 s 96(5) …. 10.27 s 96AA …. 10.27, 10.69 s 96AB …. 10.69 s 97 …. 10.48, 10.70, 19.4, 22.26 s 97(7) …. 10.70, 11.34, 11.105 s 98 …. 10.70, 14.38, 19.4, 19.5 s 98(5) …. 10.70, 11.34, 11.105 s 100 …. 14.38 s 101 …. 14.38 s 102 …. 10.9, 14.38 s 103 …. 14.40 s 104A …. 22.40 s 107(3) …. 9.53 s 109 …. 9.53 s 109(3) …. 9.53 s 110 …. 9.54, 10.18, 11.21, 11.22, 11.31 s 110(1) …. 11.16, 11.21 s 110A …. 10.18, 11.16, 11.31 s 110B(1)(a) …. 11.16 s 110B(1)(b) …. 11.16 s 110C …. 11.37 s 110E …. 11.21 s 110E(a) …. 11.32

s 111 …. 10.18, 11.21, 11.22, 11.89 s 111(1) …. 11.22 s 112 …. 10.18, 11.6, 11.8, 11.21, 11.22, 11.28, 14.40 s 112(1) …. 11.16 s 112(1)(d) …. 11.32 s 112(1B) …. 11.16, 11.28, 11.37 s 112(4) …. 11.28 s 112A …. 11.32, 11.37 s 112B …. 11.37, 18.7, 18.14 ss 112B–112E …. 11.32 s 112B(2) …. 11.37 s 112C …. 11.37, 14.95, 18.7, 18.14 s 112C(2) …. 11.37 s 112D …. 11.37, 14.95 s 112E …. 11.37 s 113 …. 11.32 s 113(1) …. 11.40 s 113(2) …. 11.40 s 113(3) …. 11.40 s 113(5) …. 11.14, 11.32, 11.40 s 113(6) …. 11.40 s 113(8) …. 11.40 s 114 …. 11.12, 11.14, 11.32, 11.40 s 115A …. 11.16, 14.41 s 115J(2) …. 18.47 s 115U …. 11.33 s 115U(2) …. 10.61 s 115U(3) …. 10.61

s 115U(3)(b) …. 10.61 s 115U(4) …. 10.61, 11.33 s 115U(6) …. 10.62 s 115U(7) …. 10.62 s 115V …. 10.62, 11.33 s 115W …. 10.62, 11.34 s 115X …. 10.62 s 115Y …. 10.62, 11.34 s 115Y(2) …. 11.34 s 115Z …. 10.9, 10.62, 11.34 s 115Z(6) …. 11.34 s 115ZA …. 10.62, 11.14 s 115ZB …. 10.62, 11.14 s 115ZC …. 10.62, 11.14 s 115ZD …. 10.62 s 115ZE …. 10.62 ss 115ZF–115ZH …. 10.62 s 115ZG …. 11.33 s 115ZG(1)(e) …. 10.21 s 115ZH …. 11.33 s 115ZJ(1) …. 22.26 s 115ZJ(2) …. 10.62 s 115ZK …. 10.70, 11.14 s 115ZL(1) …. 10.62 s 115ZL(2) …. 10.62 s 116B …. 11.20 s 116C …. 11.20 s 117 …. 9.47, 14.41

s 118 …. 10.13, 14.41 s 118AA …. 10.13 s 118AB …. 10.13 s 121B …. 20.4 s 121ZK …. 20.4 ss 122A–122D …. 11.34, 11.94 ss 122A–122F …. 10.63 s 122B …. 11.34 s 122C …. 7.30 s 122D …. 11.34 s 123 …. 11.30, 19.5, 19.39, 21.2 s 125 …. 10.16 s 131 …. 14.41 s 145A …. 16.25, 16.29 s 145B …. 16.29 s 145B(2) …. 16.30 s 145B(3) …. 3.43, 16.29 s 145C …. 16.29 s 149 …. 16.30 s 149(6) …. 3.43 s 231 …. 10.13 Sch 1 …. 18.47 Sch 1A …. 18.47 Sch 4 …. 10.8 Sch 5 …. 10.8, 11.33 Environmental Planning and Assessment Regulation 2000 …. 2.55, 10.2 cl 8F(1) …. 18.62 cl 8F(1)(c) …. 18.62

cl 8N …. 14.96 cl 27 …. 10.25 cll 77–81 …. 10.9 cll 82–85B …. 10.9 cll 86–91 …. 10.9 cl 92 …. 10.17 cl 95 …. 10.24 cl 115 …. 10.27 cl 116 …. 10.27 cl 118 …. 10.27 cl 119 …. 10.27 cl 228 …. 11.24 Pt 4 …. 10.25 Pt 6 Divs 5–7 …. 10.9 Pt 10 …. 10.62 reg 2(1)(f) …. 11.34 reg 6 …. 10.9 reg 25 …. 11.6 reg 51 …. 18.40 reg 54 …. 11.6 reg 67 …. 11.6 reg 81 …. 11.39 reg 85A …. 11.34, 11.38 reg 85B …. 11.34 reg 95 …. 10.16 reg 97A …. 18.40 reg 136D …. 18.40 reg 164A …. 18.40

reg 192(3) …. 11.38 reg 196 …. 11.34 reg 226 …. 11.20 reg 228 …. 11.4 reg 243 …. 11.32, 11.40 reg 268R …. 11.34 Sch 1 …. 10.13, 11.6 Sch 1 Pt 1 …. 10.10 Sch 1 reg 2(1)(e) …. 11.34 Sch 1 reg 2A …. 18.40 Sch 2 …. 11.9, 11.13, 11.34, 11.38 Sch 2 cl 7(1)(f) …. 8.54 Sch 2 Pt 3 …. 11.13 Sch 2 reg 3(8) …. 11.38 Sch 2 reg 4 …. 11.33 Sch 2 reg 5 …. 11.38 Sch 2 regs 5–7 …. 11.38 Sch 2 reg 7(2) …. 11.38 Sch 2 reg 7(3) …. 11.38 Sch 3 …. 7.13, 11.8, 11.16 Sch 3 cl 15 …. 16.43 Sch 3 Pt 1 cl 19 …. 11.18 Sch 3 Pt 2 cl 35 …. 11.19 Sch 3 Pt 2 cl 36 …. 11.19 Environmental Trust Act 1998 s 15 …. 16.36 s 16 …. 16.36 Environmentally Hazardous Chemicals Act 1985 …. 16.15

ss 36A–36J …. 15.81 Evidence Act 1995 s 141(1) …. 20.31 Fauna Protection Act 1948 s 19 …. 5.44 Filming Approval Act 2004 s 5 …. 7.22 Fines Act 1996 s 6 …. 20.116 Fisheries Management Act 1994 …. 11.16, 13.20, 14.37, 14.86, 19.62 Pt 2 …. 18.43 Pt 3 …. 7.39, 18.47 Pt 7 …. 18.9 Pt 7 Div 2 …. 18.9 Pt 7A …. 18.9 s 3 …. 18.9 s 7D …. 9.17 s 7E …. 18.18 s 8 …. 11.23 s 30(2) …. 18.9 s 34O …. 2.19 s 57 …. 18.43 s 71 …. 18.47 s 104 …. 18.47 s 115 …. 18.48 s 192 …. 12.67 s 193 …. 12.67 s 197A …. 12.67

s 205 …. 12.76, 20.65 s 220D …. 14.79 s 220F …. 14.79 s 220G …. 14.79 s 220H …. 14.79 s 220N …. 14.79 s 220O …. 14.86 s 220P …. 14.79 s 220Q …. 14.79 s 220T …. 10.19 s 220V …. 14.79 ss 220ZA–220ZG …. 14.81 s 220ZD …. 14.81 s 220ZI …. 14.79 s 220ZJ …. 14.79 s 220ZP …. 14.79, 14.90 s 220ZS …. 14.79 s 220ZT …. 14.79 s 220ZU …. 14.79 s 220ZV …. 14.79 s 220ZZ …. 14.80 s 221A …. 14.80 s 221B …. 11.31 ss 221I–221U …. 14.83 s 221IE …. 14.80 ss 221J–221N …. 14.94 s 279 …. 20.65 Schs 4–6 …. 14.79

Forestry Act 1916 …. 3.39, 12.69 s 25A …. 12.69 Forestry Act 2012 …. 14.41, 19.37 Pt 5A …. 9.29, 18.76 Pt 5B …. 9.29, 18.76 s 16 …. 12.66 s 18 …. 12.66, 18.76 s 18(2) …. 12.66 s 19 …. 12.66 s 21 …. 18.76 s 25 …. 12.66 s 44 …. 12.66, 14.41 s 59(1)(c) …. 12.66 s 59(2) …. 12.66 s 59(2)(b) …. 12.66, 14.41 s 69B …. 18.76 s 69B(1) …. 9.29 s 69B(2) …. 9.29, 18.76 s 69B(3) …. 9.29 s 69C …. 18.76 s 69L …. 18.76 s 69O …. 18.76 s 69S …. 20.11 s 69V …. 9.29 s 69W …. 11.23 ss 69W–69Z …. 9.29 s 69ZA …. 19.37, 22.25 Forestry and National Park Estate Act 1998 …. 12.45, 12.69

Pt 4 …. 12.70 s 36 …. 11.2, 11.21, 18.76 s 37 …. 18.76 Sch 1 …. 12.45 Sch 2 …. 12.45 Freedom of Information Act 1989 …. 22.24 Heritage Act 1977 s 136 …. 20.4 s 161 …. 20.8 Interpretation Act 1987 s 6 …. 7.14 s 33 …. 2.65, 7.21, 7.27 s 34 …. 2.66, 7.15 s 34(2)(d) …. 4.44 Land Acquisition (Just Terms Compensation) Act 1991 …. 2.28 Land and Environment Court Act 1979 …. 2.72, 21.36 s 17(d) …. 10.70 s 20 …. 19.39 s 23 …. 21.4 s 34 …. 22.13 s 38(2) …. 19.55 s 39(2) …. 10.48, 13.45 s 39(4) …. 8.31 s 39(6) …. 13.48, 13.49 s 39A …. 19.56, 22.3 s 64 …. 19.54 s 69 …. 21.23 Land and Environment Court Rules 2007

r 3.7 …. 22.10 r 3.7(3) …. 22.10 r 3.8 …. 22.13 r 4.2 …. 21.37 r 4.2(1) …. 21.23 r 4.2(2) …. 21.42 r 4.2(3) …. 21.13 r 4.3 …. 22.23, 22.49 r 12 …. 22.11 Local Government Act 1993 …. 2.44, 10.9, 10.17 s 7 …. 2.44 s 68 …. 10.17 s 89 …. 2.44, 10.17 s 124 …. 3.54 s 125 …. 3.24, 3.54, 15.96 ss 731–733 …. 20.81 s 733 …. 3.38, 3.40, 3.43, 17.51 s 733(2) …. 18.56 s 733(3)(b) …. 18.56 s 733(3)(f) …. 18.56 s 733(3)(f2–f6) …. 18.56 s 733(3)(f3–f6) …. 17.51 s 733(3)(f6) …. 3.45 s 733(4) …. 3.43 s 733(5) …. 3.43 Local Government (Approvals) Amendment (Sewage Management) Regulation 1998 …. 3.33 Local Land Services Act 2013 …. 9.64 Pt 4 Div 1 …. 9.64

Pt 4 Div 2 …. 9.64 s 3 …. 9.64 s 14 …. 9.64 s 29 …. 9.64 s 29(1)(e) …. 9.64 Marine Estate Management Act 2014 …. 12.59 s 7 …. 12.59 s 8 …. 12.59 s 22 …. 12.59 s 23 …. 12.59 s 23(4) …. 12.59 s 32 …. 12.59 s 33 …. 12.59 s 34 …. 12.59 s 35 …. 12.59 s 36 …. 12.59 s 79 …. 12.59 Marine Pollution Act 1987 …. 15.114 s 8 …. 20.41 s 8(1) …. 15.126 s 18 …. 20.54 Marine Pollution Act 2012 …. 7.19, 15.114 ss 12–17 …. 15.126 ss 18–25 …. 20.41 s 19 …. 7.19 ss 32–41 …. 20.41 s 48 …. 20.41 s 49 …. 20.41

ss 56–59 …. 20.41 ss 63–66 …. 20.41 Marine Pollution Regulation 2014 …. 15.114 Mining Act 1992 s 127 …. 2.19 s 237 …. 18.6, 18.59 s 238 …. 18.6, 18.59 s 239 …. 18.59 ss 240–240D …. 18.59 s 246N …. 18.60 s 246P …. 7.30 s 378ZE …. 18.60 s 379 …. 9.6 s 379AA …. 9.6 s 380A …. 8.31 Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 s 3 …. 2.39 Mining Regulation 2010 cl 62 …. 5.41 cl 63 …. 5.41 Sch 6 …. 5.41 National Environment Protection Council (NSW) Act 1995 …. 15.3 s 6(1) …. 15.4 s 14(1) …. 15.4 s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6 s 18 …. 15.6

s 19 …. 15.6 s 21 …. 15.6 s 28(1) …. 15.6 National Parks and Wildlife Act 1974 (NPWA) …. 12.45, 12.61, 12.69, 13.21, 14.37, 14.38, 14.41, 14.64, 14.82, 21.22, 22.53 Pt 4A …. 12.68 Pt 6A …. 20.4 Pt 8A …. 13.21 s 2A …. 7.27, 8.78 s 2A(2) …. 7.26, 8.28 s 2A(3) …. 7.22 s 5 …. 14.37 s 30A …. 12.45 s 30B …. 12.45 s 30C …. 12.45 s 30D …. 12.45 s 30E …. 12.45 ss 30E–30K …. 12.45 s 30J …. 12.45 s 33 …. 7.52 s 39 …. 12.75 s 39(3) …. 12.75 s 39(4) …. 12.75 s 41 …. 12.69, 18.5, 18.62 s 41(1) …. 12.69 s 54 …. 12.69, 18.62 s 58 …. 12.75 s 58F …. 12.73 s 58O …. 12.69, 18.62

s 58S …. 12.73 s 61 …. 12.46 s 61(4) …. 12.46 s 61A …. 12.46 s 64 …. 12.69, 18.62 ss 69A–69KA …. 12.47 s 69B …. 7.47 s 69B(1A) …. 7.47 s 70 …. 12.76 s 71 …. 12.76 s 72 …. 12.67 s 72(2) …. 9.17, 12.73 s 72(2a) …. 12.73 s 72(4) …. 9.17 s 75 …. 9.20, 12.67 s 75(5) …. 12.73 s 81(3a) …. 12.73 s 86 …. 11.90 s 90 …. 7.27, 8.78, 22.57 ss 91AA–91FF …. 14.42 s 91A …. 20.4 ss 91A–91I …. 12.47, 14.42 ss 91J–91T …. 12.76 s 97 …. 3.8 s 99(3) …. 14.38 s 118A …. 14.81 ss 118A–118E …. 14.81 s 118A(3)(b) …. 14.98

s 118D …. 14.81, 14.82, 20.115, 21.5 s 118D(b)(i) …. 14.98 s 120 …. 11.31 s 132C …. 11.31 ss 145–148 …. 12.42 s 151 …. 12.73 s 152 …. 12.73 s 153 …. 12.74 s 175B …. 20.59 s 205(1)(c) …. 14.82 Sch 11 …. 14.37 Sch 13 …. 14.41 Sch 14 …. 12.68 National Parks and Wildlife Act 1994 s 90 …. 20.117 s 194 …. 20.93 National Parks and Wildlife Regulation 2009 …. 14.64 regs 72–75 …. 14.64 National Parks Estate Act 1998 …. 19.39 National Trust of Australia Act 1990 s 25 …. 7.47 Native Vegetation Act 2003 (NVA) …. 5.34, 5.35, 9.24, 9.64, 10.21, 13.4, 13.16, 13.17, 13.21, 13.43, 13.44, 13.56, 13.57, 18.15 Pt 4 …. 7.42, 7.48, 13.21 s 5 …. 10.21 s 5(1)(c) …. 13.56 s 6 …. 10.21 s 7 …. 10.21 s 8 …. 13.21

ss 8–10 …. 13.56 s 9 …. 13.18, 13.21 s 9(1)(h) …. 13.21 s 11 …. 13.18 s 12 …. 7.48, 10.21, 18.15 ss 12–14 …. 13.21 s 12(1) …. 13.17 s 12(1)(b) …. 10.21 s 13 …. 10.21 s 14 …. 9.4, 10.6, 10.21 ss 18–24 …. 10.21 s 19 …. 13.18 s 20 …. 13.17 s 22 …. 13.18 s 24 …. 13.18 s 25 …. 7.19 s 25(f) …. 10.21 ss 26–32 …. 10.21 s 27 …. 7.47, 9.64 s 28(d) …. 9.64 s 29 …. 13.56 s 29(2) …. 13.21 s 31 …. 7.46 s 35 …. 20.28 s 36 …. 7.23, 20.28, 20.66 s 37 …. 20.4 s 38 …. 13.21, 20.4 s 41 …. 21.2

Sch 1 …. 10.21 Sch 1 Pt 3 …. 13.56 Sch 3 …. 10.21 Native Vegetation Conservation Act 1997 (NVCA) …. 6.46, 10.21, 13.16, 13.17, 13.18, 21.22 s 4(1) …. 13.17 s 5(4) …. 13.18 s 6 …. 13.17 s 12 …. 20.114 s 13 …. 13.16 s 15 …. 7.35 s 21(2) …. 20.114 s 44 …. 13.16 Native Vegetation Regulation 2013 Pt 4 …. 13.21 Pt 5 …. 13.21 Pt 6 …. 13.18 Pt 6 Div 3 …. 13.19 reg 3 …. 13.56 reg 18 …. 13.21 reg 18(1)(b) …. 13.21 reg 19 …. 13.21 reg 20 …. 13.19 reg 22 …. 13.21 reg 22(4) …. 13.21 reg 62 …. 13.18 Natural Resources Commission Act 2003 …. 9.64 s 13 …. 2.36 s 126B …. 14.97

s 126C …. 14.97 Nature Conservation Trust Act 2001 s 7 …. 12.47 Non-Indigenous Animals Act 1987 …. 2.47 Noxious Weeds Act 1993 …. 20.7 Offshore Minerals Act 1999 s 38A …. 18.62 s 38B(1) …. 18.59 s 38B(2) …. 18.59 Olympic Co-Ordination Authority Act 1995 …. 10.68 Ozone Protection Act 1989 …. 15.133 Pesticides Act 1999 s 69(3) …. 15.41 Petroleum (Offshore) Act 1982 …. 18.59 Petroleum (Onshore) Act 1991 s 6 …. 9.6 s 24A …. 8.31 s 75 …. 18.59 Plantations and Reafforestation Act 1999 …. 13.20 s 15 …. 14.94 Pollution Control Act 1970 s 17 …. 20.33 s 17d(1) …. 20.33 Prevention of Cruelty to Animals Act 1979 …. 19.37 Protection of the Environment Administration Act 1991 Pt 3 …. 18.76 Pt 4 …. 18.76 Pt 6 …. 18.76

s 6 …. 7.22 s 6(2) …. 8.19, 8.56 s 6(2)(a) …. 8.62 s 6(10)(a) …. 22.63 s 12A …. 11.23, 11.31 ss 13–15 …. 18.76 Protection of the Environment Operations Act 1997 …. 7.19, 11.33, 15.60, 15.109, 15.113, 16.15, 17.41, 20.19, 20.26, 20.48 Ch 5 Pt 5.2 …. 15.109, 20.26 Ch 5 Pt 5.3 …. 20.26 Ch 7 …. 20.28 Ch 8 Pt 8.2 …. 15.109 Ch 8 Pt 8.2 Div 4 …. 15.113 Dictionary …. 15.20, 15.24, 15.25, 15.109, 16.15, 16.16, 17.41, 20.35 Pt 2 …. 16.43 Pt 5.6A …. 16.18 Pt 9.3 …. 7.45, 15.43 Pt 9.3A …. 7.45, 15.43 Pt 9.3B …. 7.43, 7.45, 15.18, 15.43 Pt 9.3C …. 15.43 Pt 9.4 …. 15.43 s 3(a) …. 22.63 s 4 …. 20.69 s 5 …. 15.59 s 6 …. 15.30 s 6(2) …. 15.60 s 6(4) …. 15.60 s 7 …. 7.19 s 7(3) …. 7.19

s 9 …. 15.53 ss 10–41 …. 15.38 s 11(3) …. 15.15 s 11(4) …. 15.38 s 11(4)(e) …. 16.2 s 13 …. 22.63 s 13(1)(d) …. 15.15 ss 14–24 …. 15.40 s 22(1) …. 15.15 s 22(3) …. 15.40 s 27 …. 15.40 s 28 …. 15.39 ss 29–32 …. 15.39 s 35 …. 15.38 s 35(d) …. 15.40 s 38 …. 15.40 s 41 …. 15.40 s 43 …. 15.59 s 43(d) …. 15.59 s 44 …. 15.58 s 45 …. 15.63, 15.66, 22.63 s 45(a) …. 15.39 s 45(d) …. 15.71 s 47 …. 15.58 ss 47–49 …. 15.59, 15.111 s 50 …. 15.61 s 51 …. 15.61 s 54 …. 15.64

s 58 …. 15.63 s 58(6) …. 15.61 s 59E …. 15.110 s 63 …. 15.75 s 64(1) …. 15.111 s 64(2) …. 15.111 ss 65–76 …. 15.75 s 66 …. 15.65 ss 66–68 …. 15.75 s 66(4) …. 15.65 s 66(5) …. 15.65, 15.75 s 67 …. 7.30, 15.43, 15.81 s 67AA …. 15.110 s 68 …. 15.43, 15.46 s 69 …. 15.43 s 69(d) …. 15.43 s 70 …. 15.43, 15.77 s 75 …. 16.18 s 75(1) …. 16.2 s 75(2) …. 15.46, 16.2 s 76 …. 16.2, 16.18 s 77 …. 15.62 s 78 …. 11.33, 15.61, 15.62 s 78(5) …. 15.61 s 79 …. 15.79 ss 79–83 …. 15.63 s 79(1) …. 15.79 s 79(5) …. 15.63

s 79(5)(b) …. 15.79 s 79(5)(f) …. 15.79 s 80 …. 15.79 s 80(1) …. 15.79 s 81(1) …. 15.79 s 82 …. 15.63 s 82(1) …. 15.79 s 83 …. 15.79 s 84 …. 15.89 s 88 …. 16.6 ss 89–113 …. 15.91 s 90 …. 15.91, 20.4 s 91 …. 15.91 ss 91–94 …. 20.4 s 91(2) …. 15.101 s 91(4) …. 15.92 s 91(5) …. 15.92 s 92 …. 15.91 s 93 …. 15.91, 15.101 s 93(4) …. 15.92 s 95 …. 15.91 s 96 …. 15.91 s 96(3) …. 15.91 s 97 …. 15.92, 15.111 s 101 …. 15.91 s 102 …. 15.92, 15.111 s 104 …. 15.92 ss 104–107 …. 15.98

ss 105–107 …. 20.7 s 107(4) …. 15.98 s 114 …. 15.109 s 114(1) …. 15.109 s 114(2) …. 15.109 s 114(3) …. 15.109 s 115 …. 15.26, 15.109, 20.47 ss 115–117 …. 20.43, 20.45 s 115(1)(b) …. 20.51 s 116 …. 15.109 s 116(1)(b) …. 20.51 s 116(2) …. 20.63 s 117 …. 15.109 s 118 …. 20.71 s 120 …. 7.9, 15.36, 15.109, 20.31, 20.35, 20.49 s 120(1) …. 20.43 s 120(2) …. 20.43 s 120(3) …. 20.43 s 121 …. 20.81 s 121(1) …. 20.31 s 122 …. 15.59, 20.31, 20.81 s 133 …. 15.93 ss 133–135 …. 15.93 s 134 …. 15.93 s 143 …. 16.18, 20.26 s 144 …. 16.17, 20.26, 20.65 s 144(1) …. 20.49 s 147 …. 15.28, 15.65

s 147(1)(b) …. 15.28 s 148 …. 15.37, 15.65 s 148(2) …. 15.37 s 151 …. 15.37 s 152 …. 15.37 ss 153A–153F …. 15.37 s 161 …. 15.93 s 162 …. 15.93 s 168 …. 20.64 s 169 …. 20.59, 20.86 s 169(1) …. 20.35 s 169(2) …. 20.59 s 169(4) …. 20.55, 20.57 s 172 …. 15.80, 20.69 s 173 …. 15.87 ss 174–176 …. 15.81 s 174(3)(e) …. 15.86 s 178 …. 15.83 s 179 …. 15.83 s 180 …. 15.85 s 181 …. 15.85 ss 181–183 …. 20.69 s 182 …. 15.85 s 193 …. 20.29 s 214(1) …. 20.26 s 216(6) …. 20.26 s 217(2) …. 20.25 s 218A …. 20.25

s 219 …. 15.113, 19.41, 21.3 s 222 …. 15.109 ss 222–229 …. 20.9 s 230 …. 15.113 ss 230–231 …. 21.5 ss 230–240 …. 15.98 s 231 …. 15.98, 15.113 ss 232–235 …. 15.113 s 238(1) …. 15.111 s 241 …. 20.93 s 243 …. 15.112 s 244(2) …. 15.112 s 245 …. 15.99, 15.112, 20.116 s 246 …. 3.54, 15.98, 20.10, 20.116, 21.21 s 246(1)(a) …. 15.112 s 246(1)(b) …. 15.112 s 247 …. 3.54, 15.98, 20.10, 20.116, 21.21 s 247(1)(a) …. 15.112 s 247(1)(b) …. 15.112 s 248 …. 20.30 s 249 …. 15.113, 20.116, 20.119, 21.21 s 250 …. 20.116 s 250(1)(a) …. 15.112 s 250(1)(b) …. 15.112 s 250(1)(c) …. 15.112 s 252 …. 19.39, 21.2 s 252(1) …. 15.113 s 252(2) …. 15.113

s 252(6) …. 21.4 s 252(7) …. 21.4 s 253 …. 19.39, 21.2 s 253(4) …. 21.4 s 253(5) …. 21.4 s 253A …. 15.99, 20.19 s 256 …. 20.31 s 257 …. 20.30, 20.54 s 261 …. 20.30 s 262 …. 20.30 ss 263–283 …. 15.93 s 264 …. 15.93 s 268 …. 15.24, 15.93 s 269 …. 15.24 s 270 …. 15.93 s 276 …. 15.24, 15.93 s 277 …. 15.24 s 278 …. 15.93 ss 284–286 …. 15.78 ss 287–292 …. 15.88 s 287(3) …. 15.62 s 289 …. 20.4 ss 293–295X …. 15.72 ss 295A–295L …. 15.72 s 295B …. 15.73 ss 295M–295X …. 15.72 s 295O …. 15.74 s 295Y …. 15.82

s 295Z …. 15.82 ss 296–307 …. 15.77 s 299 …. 15.77 s 300 …. 15.77 ss 302–303 …. 15.77 s 303(8) …. 15.77 s 305 …. 15.77 s 308 …. 15.61 s 309 …. 15.61 s 318 …. 15.59 s 319A …. 15.92 s 322 …. 3.16 s 323 …. 2.56 s 323(2) …. 16.2 Sch 1 …. 15.59, 16.15 Sch 1 Pt 1 cl 15 …. 16.43 Sch 1 Pt 1 cl 15A …. 16.43 Sch 1 Pt 3 …. 16.15 Sch 2 cl 5A …. 16.2 Sch 3 …. 18.7 Protection of the Environment Operations (Clean Air) Regulation 2010 …. 15.24 Protection of the Environment Operations (General) Regulation 1998 …. 8.84 Protection of the Environment Operations (General) Regulation 2009 cl 60 …. 15.43 regs 13–35 …. 15.72 regs 42–45 …. 15.72 Sch 5 …. 15.24

Sch 6 …. 15.109 Protection of the Environment Operations (Hunter River Salinity Trading Scheme) Regulation 2002 …. 15.73 Protection of the Environment Operations (Noise Control) Regulation 2008 cl 13 …. 15.24 Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2008 …. 16.25 Protection of the Environment Operations (Waste) Regulation 2005 cl 3A …. 16.15 cl 3B …. 16.15 cl 46J …. 16.10 cl 46K …. 16.10 Pt 2 …. 5.23 Pt 3 …. 16.18 Pt 4 …. 16.15 Pt 5 …. 16.15 Pt 5A …. 16.2 reg 46B …. 16.1 reg 46C …. 16.1 reg 47 …. 16.17 reg 48 …. 16.18 reg 49 …. 16.18 Protection of the Environment Operations (Waste) Regulation 2014 …. 16.33 cl 6 …. 16.15 cl 6 …. 16.15 cl 92 …. 16.15 cl 113 …. 16.15 Pt 2 …. 16.6

Pt 8 …. 16.10 reg 92 …. 16.3 Protection of the Environment (Underground Petroleum Storage Systems) Regulation 2014 …. 16.30 Radiation Control Act 1990 …. 15.131 s 7 …. 15.131 s 8 …. 15.131 Rivers and Foreshores Improvement Act 1948 Pt 3A …. 13.20 Roads Act 1993 s 88 …. 7.16, 7.17, 7.19, 11.21, 13.20, 21.33 Rural Fires Act 1997 …. 13.20 s 3(d) …. 13.20 s 9(3) …. 13.20 s 96 …. 11.31 s 100C …. 13.20 s 100P …. 13.21 s 100R …. 13.21 s 128 …. 3.43 Soil Conservation Act 1938 s 15A …. 18.77 s 17 …. 18.77 s 18 …. 18.77 s 21C …. 20.52 Species Conservation Act 1997 …. 13.20 State Environmental Planning (Permissible Mining) Act 1996 …. 10.53 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 …. 18.40 State Environmental Planning Policy (Mining, Petroleum Production and

Extractive Industries) 2007 …. 18.62, 18.66 cl 14 …. 17.55, 17.56 cl 17B …. 18.66 cl 17H(4) …. 18.66 Pt 4AA …. 9.65, 18.66 reg 7 …. 7.17 s 12AA(3) …. 8.39 s 12AA(4) …. 8.39 s 14(2) …. 8.77 s 17B …. 9.65 s 17H …. 9.65 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (Resource Significance) 2013 …. 18.59 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (Significance of Resource) 2015 …. 18.59 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 …. 8.47 State Owned Corporations Act 1989 s 37A(4) …. 11.16 s 37A(5) …. 11.16 Subordination Legislation Act 1989 …. 15.40 Supreme Court Act 1970 s 76(1) …. 19.45 Supreme Court Rules 1970 Pt 39 r 1 …. 22.11 r 28.7 …. 21.13 Sydney Harbour Foreshore Authority Act 1998 s 12 …. 10.68

s 15 …. 10.68 Sydney Harbour Tunnel (Private Joint Venture) Act 1987 s 8(2) …. 10.66 Sydney Water Catchment Management Act 1998 s 53 …. 18.7 Threatened Species Conservation Act 1995 …. 7.29, 9.24, 10.17, 10.20, 11.16, 11.35, 11.36, 11.37, 14.38, 14.85, 14.86, 14.97, 18.62 Pt 5 …. 14.92 Pt 7 Div 1 …. 20.4 Pt 7 Div 5 …. 11.2 Pt 7AA …. 11.2 Pt 7A …. 3.10, 13.57 s 4(1) …. 10.19 s 5B …. 11.36 ss 10–14 …. 14.79 s 14(4) …. 11.37 s 17(1) …. 14.79 s 18 …. 14.79 s 21(1A) …. 14.86 s 21(3) …. 14.86 s 22 …. 14.87 ss 26–36 …. 14.79 s 27 …. 14.86 s 28 …. 14.86 s 37 …. 14.79 s 38 …. 14.79 s 40 …. 14.89 s 44 …. 14.89 s 47 …. 10.19, 14.89

s 48 …. 14.89 s 50 …. 7.32, 14.79 s 56 …. 9.20, 14.79 s 65 …. 14.79, 14.90 s 66 …. 14.90 s 69 …. 7.32, 14.79 ss 69–73 …. 7.29, 14.79 s 74 …. 9.20, 14.79 ss 77A–77C …. 11.36 s 77C …. 11.36 s 79B(4) …. 11.36 s 79B(5) …. 11.36 s 79B(6) …. 11.36 s 79B(7) …. 11.36 s 83 …. 14.90 s 86 …. 14.79 ss 86–90 …. 7.29, 14.79 s 90A …. 14.92 ss 90A–90E …. 14.79, 14.92 s 91 …. 7.32 s 94 …. 14.79 s 97 …. 14.79 s 99 …. 11.31 s 106 …. 22.3 ss 109–113 …. 11.35 s 110 …. 10.19, 11.35, 11.38 s 110(4) …. 11.99 s 111 …. 11.13, 11.38

s 111(4) …. 11.35 s 113 …. 11.35, 11.99 s 113B …. 11.31 ss 114–120 …. 14.83 ss 121–126 …. 7.48 s 126B …. 14.97 ss 126B–126N …. 8.47, 14.97 ss 126B–126O …. 9.24 s 126C …. 14.97 s 126D …. 11.37, 14.97 s 126I …. 11.37, 14.97 s 126N …. 14.95 s 127A …. 13.57 s 127B …. 6.33 s 127G …. 13.57 s 127J …. 13.57 s 127K …. 13.57 s 127L …. 13.57 s 127N …. 13.57 s 127P …. 13.57 s 127S …. 13.57 s 127U …. 13.57 ss 127V–127Y …. 13.57 ss 127Z–127ZC …. 13.57 s 127ZK …. 13.58 s 127ZL(3) …. 13.58 s 127ZL(4) …. 13.58 s 127ZM …. 13.58

s 127ZN …. 13.59 s 127ZO …. 11.37, 13.59 s 127ZP …. 11.37 s 127ZZ …. 13.58 s 127ZZG …. 13.59 s 127ZZI …. 11.99 s 127ZZN …. 7.30 Sch 1 …. 10.19 Schs 1–3 …. 14.79 Sch 1A …. 10.19 Sch 2 …. 10.19 Sch 3 …. 14.87 Threatened Species Conservation (Biobanking) Regulation 2008 regs 3–10 …. 13.57 Threatened Species Conservation Regulations 2010 Pt 2 …. 14.79 Trees (Disputes Between Neighbours) Act 2006 …. 3.15 Pt 2A …. 3.15 s 5 …. 3.15 Uniform Civil Procedure Rules 2005 …. 21.22, 21.45 Pt 40 r 40.6 …. 21.22 Pt 40 Div 2 r 40.6(2) …. 21.22 r 1.7 …. 21.29 r 42(1) …. 21.29 s 42.4 …. 21.37 r 42.21(1)(e) …. 21.42 r 50.8 …. 21.42 r 51.50 …. 21.42

r 59.11 …. 21.42 Sch 2 …. 21.29 Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 …. 15.131, 18.68 Walsh Bay Development (Special Provisions) Act 1999 …. 10.68 Waste Avoidance and Resource Recovery Act 2001 …. 16.2 s 3 …. 16.1 s 4 …. 16.15 s 12 …. 16.1 s 15 …. 7.5, 16.5 ss 15–18 …. 16.7 s 15(3) …. 16.5 s 17 …. 16.7 Waste Avoidance and Resource Recovery Strategy 2006 …. 16.1 Water Act 1912 …. 5.36, 13.20, 19.27, 19.39 Water Administration Act 1986 s 11 …. 9.74 s 19 …. 3.41 Water Administration Act 2000 …. 3.42 Water Board (Corporatisation) Act 1994 Ch 3 …. 7.38 s 3 …. 7.31 s 22 …. 22.63 Water (Commonwealth Powers) Acts 2008 …. 18.33 Water Efficiency Labelling and Standards Acts 2005 …. 18.38 Water Industry Competition Act 2006 s 7 …. 18.40 s 41 …. 18.40 Water Management Act 2000 …. 5.36, 9.64, 9.73, 11.2, 13.20, 18.18

Pt 3 …. 7.35 s 3 …. 9.1, 18.20 s 5 …. 9.73, 18.18 s 6 …. 18.25 s 7(3) …. 18.24 s 8 …. 7.39 s 8(1)(a) …. 18.23 s 8(1A) …. 18.23 s 8(2) …. 18.23, 18.25 s 8(4) …. 18.23 ss 8B–8E …. 18.23 s 9 …. 9.73, 18.18 s 9(1)(b) …. 22.70 s 9(2) …. 18.25 ss 11–15 …. 18.25 s 17 …. 18.25 s 18 …. 18.25 s 20 …. 18.24 s 20(1) …. 18.25 ss 22–24 …. 18.25 s 23 …. 9.73, 18.18 ss 25–27 …. 18.25 s 26 …. 9.73, 18.18 ss 28–30 …. 18.25 s 29 …. 9.73, 18.18 ss 31–33 …. 18.25 s 34 …. 9.64, 18.7, 18.15, 18.25 s 34(1)(f) …. 18.7

s 38 …. 9.20 s 39 …. 9.20 s 41 …. 18.25 s 41(2) …. 18.25 s 49A …. 18.22 s 50 …. 18.25 s 52 …. 3.14 ss 52–54 …. 18.20 s 56 …. 18.23 s 57 …. 18.29 s 58 …. 18.29 s 58(3) …. 18.29 s 63 …. 18.29 s 71M …. 3.11 s 71Z …. 18.29 s 79 …. 2.26 ss 86–87A …. 18.29 s 87 …. 2.26 s 87AA …. 2.26 s 87A …. 2.26 s 89 …. 18.23 s 96 …. 18.29 s 392 …. 3.8, 9.6, 18.20 s 393 …. 3.14, 18.20 s 398 …. 3.42 Water Management (General) Regulations 2004 reg 33 …. 18.29 Water NSW Act 2014

Pt 4 …. 9.64 s 6 …. 9.63 s 7 …. 9.64 Water Savings Order 2005 reg 5 …. 18.39 Sch 1 …. 18.39 Sch 2 …. 18.39 Western Lands Act 1901 …. 13.64 s 2 …. 8.26 s 2(e) …. 8.26 s 2A …. 9.12 s 18D …. 13.64 s 18D(1)(d) …. 9.14 s 18DB …. 13.64 Sch B …. 9.12 Western Land Regulations 1992 …. 13.64 Wilderness Act 1987 …. 12.45 s 6(1) …. 12.46 s 6(2) …. 12.46 s 7 …. 12.46 s 8 …. 12.46 ss 16–19 …. 12.73

Northern Territory Aboriginal Land Rights (Northern Territory) Act 1976 s 71 …. 12.34 Civil and Administrative Tribunal Act 2014 …. 2.72 Crown Lands Act 1992 …. 9.7 s 37(1)(h) …. 13.65

s 37(2) …. 14.65 s 79(9)(g) …. 13.65 s 102 …. 13.65 Environment Protection (Beverage Containers and Plastic Bags) Act 2011 …. 7.6, 16.9, 16.12 s 51 …. 16.12 s 52 …. 16.12 s 57 …. 16.12 Environment Protection (Beverage Containers and Plastic Bags) Regulations 2011 …. 16.9 Environmental Assessment Act 1982 …. 10.46, 11.4, 11.57 s 3 …. 11.57 s 4 …. 11.57 s 7 …. 11.6 s 10 …. 11.12 Environmental Offences and Penalties Act 1996 …. 15.105 s 6 …. 15.111 s 7 …. 15.111 Fire and Emergencies Act 1996 s 9 …. 7.16 Fisheries Act 1988 …. 2.15, 14.65 s 15 …. 15.93 Marine Pollution Act 1999 …. 15.114 s 14 …. 15.126 McArthur River Project Agreement Ratification Act 1992 …. 10.65, 15.78 Mining Act 1980 s 176A …. 18.59 National Environment Protection Council (NT) Act 1994 …. 15.3 s 4 …. 15.25

s 6(1) …. 15.4 s 14 …. 15.37 s 14(1) …. 15.4 s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6 s 18 …. 15.6 s 19 …. 15.6 s 21 …. 15.6 s 28(1) …. 15.6 Parks and Reserves (Framework for the Future) Act 2003 …. 12.50 s 3 …. 12.50 s 8 …. 12.50 s 10(1) …. 12.50 s 16 …. 12.50 Schs 1–5 …. 12.50 Pastoral Land Act 1992 …. 9.7 s 38(2) …. 14.65 Petroleum Act s 15 …. 18.59 Planning Act 1992 …. 13.65 s 3 …. 10.2 s 4 …. 9.33, 13.65 s 7 …. 9.61 s 8 …. 9.61 s 38(1)(k) …. 13.65 s 38(1)(m) …. 13.65 s 39 …. 13.65

ss 111–116 …. 10.70 Planning Act 1999 …. 10.2 Pt 7A …. 10.46 s 9 …. 10.46 s 9(1)(a) …. 10.3 s 26 …. 10.46 s 32 …. 10.46 s 38(2) …. 10.3 s 42 …. 10.3 s 46(3) …. 10.10 s 47A …. 10.9 s 50A(2)(b) …. 10.46 s 50B …. 10.46 s 50C …. 10.46 s 51 …. 10.10, 10.45 s 52 …. 10.46 s 52(3) …. 10.3 s 57A …. 10.46 s 57B …. 10.46 s 117 …. 19.5, 19.23 Planning Regulations 2000 …. 10.2 reg 6 …. 10.9 reg 8A …. 10.9 reg 8B …. 10.9 Protection of the Environment (Waste) Regulation 2005 Pt 5B …. 15.13 Radiation Protection Act 2004 …. 15.130 s 11 …. 15.131

Summary Offences Act 1923 s 5 …. 15.24, 15.96 s 53A …. 15.96 s 53B …. 15.96 s 53D …. 15.24 Territory Parks and Wildlife Conservation Act 1976 …. 12.50, 12.67 Pt III …. 12.68 s 9 …. 14.43 s 11 …. 12.50 s 12 …. 12.50 s 14 …. 12.73 s 17 …. 12.69, 12.75 s 18 …. 12.67 ss 25AA–25AR …. 12.50 s 25A …. 12.50 s 25F …. 14.43 s 25G …. 14.43 s 26A …. 14.79 s 28 …. 14.43 s 29 …. 14.43 s 30 …. 14.79 s 31 …. 14.43 s 35 …. 12.68 s 36 …. 12.68 ss 37–42 …. 14.79 ss 42–44 …. 7.36 s 43 …. 14.43 ss 44–46 …. 14.43

ss 47–51 …. 14.43 ss 52–54 …. 14.43 ss 55–63 …. 14.43 s 66 …. 14.43 s 67 …. 14.43 s 67A …. 14.43 s 67B …. 14.43 s 73 …. 12.68, 14.65 s 74 …. 12.50 s 74A …. 12.50 s 93 …. 14.65 s 122 …. 14.65 Territory Parks and Wildlife Conservation Regulations cl 2 …. 14.43 cl 3 …. 14.43 Sch 1 …. 14.43 Trans-Tasman Mutual Recognition (Temporary Exemption for Beverage Containers) Regulations 2011 …. 7.6, 16.9 Trans-Tasman Mutual Recognition (Temporary Exemption for Prohibited Plastic Bags) Regulations 2011 …. 7.6, 16.12 Waste Management and Pollution Control Act 1998 …. 10.46, 15.105 Pt 6 …. 15.43 Pt 7 …. 15.43 Pt 8 …. 15.43 s 4 …. 15.26, 15.29, 15.33 ss 4–7 …. 15.105 s 4(1) …. 20.69 s 4(2) …. 15.28 s 9 …. 15.61

s 12 …. 15.35 s 12(2) …. 15.35 s 12(3) …. 15.36 s 13 …. 15.36, 15.42 ss 15–29 …. 15.38 s 16 …. 15.38 s 17(2) …. 15.38 s 18 …. 15.38 s 19 …. 15.40 s 20 …. 15.40 s 22 …. 15.15 s 23 …. 15.15 s 26(1) …. 15.63 s 27 …. 15.40 s 28 …. 15.40 s 29 …. 15.88 s 30 …. 15.59, 15.88, 15.111 s 30(2) …. 15.57 s 31 …. 15.59 s 32 …. 15.66 s 32(1)(b) …. 15.39 s 32(1)(h) …. 15.33 s 32(2) …. 15.61 s 33 …. 15.66 s 34 …. 15.63 s 35 …. 15.75 s 35(2) …. 15.39 s 35(3) …. 15.75

s 36 …. 15.77 s 36(3) …. 15.77 s 36(4) …. 15.77 s 39(1) …. 15.111 s 39(2) …. 15.111 s 40 …. 15.62 s 41 …. 15.57, 15.62 s 43(3) …. 15.79 s 45 …. 15.63, 15.79 s 45(1) …. 15.79 s 45(1)(d) …. 15.79 s 46 …. 15.64 s 47 …. 15.80, 20.69 s 48 …. 15.81 s 49 …. 15.81 s 54 …. 15.85 s 55 …. 15.43 s 56 …. 15.46 s 57 …. 15.47 s 58 …. 15.46, 15.81 s 59 …. 15.46 s 60(1)(c) …. 15.33 s 61 …. 15.46 s 62 …. 15.48 s 63 …. 15.48 s 63(3) …. 15.62 s 66(1) …. 15.43 ss 67–69 …. 15.88

ss 77–82 …. 15.93, 16.43 s 79(1)(d) …. 16.46 s 80(1) …. 15.111 s 80(2) …. 15.111 s 83 …. 20.39 s 83(1) …. 15.105 s 84 …. 20.81 s 90(1) …. 15.71 s 91 …. 20.59 s 91(2)(d) …. 20.86 s 93(3) …. 15.63 s 97 …. 15.101, 15.112 s 97(a)(i) …. 15.112 s 97(a)(ii) …. 15.112 s 97(c) …. 15.112 s 108(1)(k)–(n) …. 15.48 s 108(1)(p) …. 16.46 s 108(1)(q) …. 16.46 s 117 …. 16.2 s 118 …. 15.78 Sch 1 …. 15.61 Sch 2 …. 15.59, 15.111 Sch 2 Pt 1 …. 15.57 Water Act 1992 …. 18.29 s 4 …. 15.59 s 16 …. 20.49 s 17(1) …. 3.16 s 62 …. 15.59

s 63(1) …. 15.59 s 63(2) …. 15.75 s 65 …. 15.59 s 73 …. 10.46, 15.38 s 77 …. 15.75 s 90(1) …. 15.66 s 91 …. 15.66 s 92 …. 15.64 s 95 …. 15.61 Water Efficiency Labelling and Standards Acts 2014 …. 18.38 Water Regulations 1992 reg 17 …. 15.61

Queensland Aboriginal Cultural Heritage Act 2003 s 23 …. 3.51 s 28 …. 3.52 Aboriginal Land Act 1991 s 2.03 …. 14.67 Acquisition of Land Act 1967 …. 2.28 Animal Care and Protection Act 2001 s 11 …. 3.51 s 17 …. 3.51 Animals Protection Act 1925 s 11(4) …. 22.31 Biodiscovery Act 2004 …. Pt D.6 s 3 …. Pt D.6 Civil Liability Act 2003 …. 3.37 Dictionary Sch 2 …. 3.38

s 4 …. 3.38 s 9 …. 3.37 s 11 …. 3.36 s 34 …. 3.38 s 35 …. 3.37 s 36 …. 3.37, 3.38 Clean Coal Technology Special Agreement Act 2007 …. 10.65 s 2 …. 10.65 Coastal Protection and Management Act 1995 …. 17.35, 18.56 s 4 …. 18.56 s 15 …. 18.52 s 20 …. 18.56 s 21 …. 18.56 s 34 …. 18.56 s 54 …. 18.56 s 59 …. 18.56 s 70 …. 18.56 s 75 …. 18.56 s 100A …. 18.56 s 103 …. 18.56 s 104 …. 18.56 s 106 …. 18.56 Coastal Protection and Management Regulation 2003 reg 4A …. 18.56 Coastal Protection State Planning Regulatory Provision 2013 …. 18.56 Pt 3 …. 18.56 Constitution Act 1867 …. 5.39 Contaminated Land Act 1991

ss 40–42 …. 15.88 Criminal Code 1899 s 22 …. 14.66 s 23 …. 20.76 s 24 …. 13.26, 20.76 Environmental Offsets Act 2014 …. 13.38 s 7(2) …. 13.38 s 8 …. 13.38 s 9 …. 13.38 s 10 …. 13.38 s 11 …. 13.38 s 14(1) …. 13.38 s 18 …. 13.38 s 18(4) …. 13.38 s 23 …. 13.38 s 25 …. 13.38 s 26 …. 13.38 s 30 …. 13.38 s 84 …. 13.38 Environmental Protection Act 1994 …. 2.72, 9.57, 11.4, 11.41, 11.54, 15.43, 16.3, 16.47, 18.59, 18.65, 20.23, 20.26, 20.61, 20.76 Ch 4 Pt 9 …. 15.64 Ch 4 Pt 11 …. 15.63 Ch 4A …. 12.21 Ch 5 …. 18.7, 18.62 Ch 5 Pt 6 Div 6 …. 15.61 Ch 5 Pt 9A …. 18.61 Ch 5A …. 11.54, 18.62 Ch 5A Pt 5 …. 15.63

Ch 5A Pt 6 …. 15.63 Ch 7 Pt 2 …. 18.61 Dictionary …. 11.54, 16.36, 20.45 s 5 …. 7.24 s 8(2) …. 15.25 s 9 …. 15.25, 15.26 s 10 …. 15.25 s 11 …. 15.25 s 13 …. 16.3 ss 14–17A …. 15.26 s 14(1) …. 15.26 s 15 …. 15.29 s 16 …. 15.28 s 17 …. 15.28 s 18 …. 10.33, 11.54, 15.59 s 19 …. 11.54, 15.59 s 19A …. 11.54 s 20 …. 7.19 s 21 …. 15.29, 15.33 s 21(2) …. 15.33 s 24(3) …. 15.36 ss 26–34 …. 15.38 s 27 …. 15.38 s 27(2)(e) …. 16.2 s 28 …. 15.38 s 33 …. 15.40 s 34 …. 15.38 s 37 …. 18.61

s 37(1) …. 11.54 s 37(2) …. 11.54 s 37(3) …. 11.54 s 40 …. 11.54 ss 40ZT–50ZX …. 15.78 ss 41–46 …. 11.13 ss 41–60 …. 11.54 s 43 …. 15.15 s 44 …. 22.63 s 49A …. 11.54 s 50 …. 11.54 s 54(2)(3) …. 15.64 s 56A …. 11.54 s 56AA …. 11.54 s 56B …. 11.54 ss 57–59 …. 11.54 s 60 …. 11.54 s 73B …. 15.19 s 73B(3)(a)(iii) …. 11.94 s 73C …. 10.32 s 75 …. 11.54, 12.21, 15.59 s 76 …. 12.21 ss 77–82 …. 12.21 s 81(c) …. 15.46 ss 83–87 …. 12.21 s 87A …. 11.54, 12.21 ss 87A–105 …. 12.21 s 89 …. 22.63

s 107 …. 11.54, 15.59 ss 108–111 …. 11.54 s 110 …. 22.63 s 121 …. 15.59 s 122 …. 15.59 s 123 …. 15.59 s 150 …. 15.59 s 162 …. 11.8 s 170 …. 15.59 s 171 …. 15.59 s 189 …. 15.61 s 201 …. 15.62, 15.79 s 203 …. 15.75 ss 203–210 …. 15.66 ss 204–206 …. 15.75 s 206 …. 18.65 s 207 …. 15.65 s 208 …. 15.65 s 254 …. 15.61 s 255 …. 15.61 s 257 …. 15.79 s 278 …. 15.63 s 280 …. 18.61 s 292 …. 15.43, 15.77 s 298 …. 15.77 s 310E …. 11.8 s 310F …. 15.61 ss 310F–310Q …. 11.54

s 310G …. 15.61 s 310V …. 11.8 s 318E …. 15.40 s 319 …. 15.35 s 319(2) …. 15.35 ss 320–320G …. 15.37 s 321 …. 15.81, 15.82 ss 321–323 …. 20.69 s 322 …. 15.81 ss 322–326A …. 15.80 s 323 …. 15.81 s 326B …. 15.82 s 330 …. 15.43, 15.81 ss 330–357 …. 15.46 s 331 …. 15.33, 15.35, 15.46 s 333 …. 15.47 s 338 …. 15.46 s 346 …. 15.48 s 347 …. 15.48 s 349 …. 15.43, 15.46 s 350 …. 15.86 ss 350–357 …. 15.48 s 351 …. 15.86 s 351(1) …. 15.48 s 351(2) …. 15.48 s 355 …. 15.48 s 356 …. 15.48 s 358 …. 15.91, 20.4

s 359 …. 15.33, 15.92 s 360 …. 15.91 s 361 …. 15.92 s 361(1) …. 15.111 s 361(2) …. 15.111 s 363B …. 12.21, 20.H ss 363B–363D …. 15.91 s 363C …. 15.92 s 363D …. 15.91 s 363E …. 15.92 s 363H …. 15.91, 20.4 s 363I …. 15.92 s 363N …. 15.91. 15.92 s 371 …. 16.37 s 372 …. 16.37 s 374 …. 16.37 ss 376–389 …. 16.37 s 381 …. 16.44 ss 381–389 …. 16.45 ss 390–400 …. 16.37 s 391 …. 16.37 s 395 …. 16.44 ss 395–400 …. 16.45 s 401 …. 15.43 ss 401–419 …. 16.37 s 410 …. 16.44 s 413(2) …. 16.33 s 417 …. 16.33

s 424 …. 16.43 s 425 …. 16.43 ss 426–427 …. 15.59, 15.111 s 430 …. 15.106, 15.111 s 431(4) …. 15.111 s 432 …. 15.46 s 432(1) …. 15.112 s 432(2) …. 15.112 s 434 …. 16.37 s 435A …. 15.76 s 436 …. 20.81 ss 437–440 …. 15.26 s 437(1) …. 15.106 s 437(2) …. 15.106 s 437(3) …. 15.106 s 438 …. 15.106 s 438(3) …. 15.106 s 439 …. 15.106 s 440 …. 15.106 s 440(3) …. 15.106 ss 440A–440J …. 16.18 ss 440R–440ZC …. 15.24 s 443 …. 15.25 s 467 …. 15.101 s 490(7) …. 20.30 s 490(8) …. 20.30 s 492 …. 20.54 s 492(2) …. 20.59

s 492(3) …. 20.54 s 493 …. 20.61 s 493(4)(a) …. 20.86, 20.88 s 493(4)(b) …. 20.86 s 493A …. 15.106 s 493A(3) …. 15.36 s 493A(3)(b) …. 15.42 s 493A(4) …. 15.36 s 493A(5) …. 15.42 s 494 …. 20.26 s 494(2) …. 20.26 s 497 …. 20.26 s 501(1) …. 15.112 s 501(2) …. 15.112 s 502 …. 15.99 s 502(1) …. 15.112 s 502(2) …. 15.112 s 502(2)(a) …. 15.112 s 502(2)(b) …. 15.112 s 502(2)(c) …. 15.112 s 502(2)(d) …. 15.113 s 502(2)(e) …. 15.112 s 502(3) …. 15.112 s 502(4) …. 15.112 s 502(7) …. 15.112, 15.113 s 502A …. 15.112 s 503 …. 20.30 s 503(2) …. 15.112

s 505 …. 19.4, 19.37, 19.41, 20.12, 21.5 s 505(1) …. 15.113 s 505(1)(a) …. 15.113 s 505(1)(b) …. 15.113 s 505(1)(c) …. 15.113 s 505(1)(d) …. 15.113 s 505(2) …. 15.113, 21.2 s 505(2)(a)(ii) …. 19.37 s 505(3) …. 15.113 s 505(4) …. 15.113, 21.13 s 505(5) …. 15.113 s 505(6)(a)(i) …. 15.113 s 505(12) …. 15.111 s 507 …. 19.5, 19.40, 20.12 s 511(4) …. 15.111 s 519 …. 20.4 s 520 …. 15.88, 19.4, 19.20 s 522 …. 15.89 s 523 …. 15.48 s 526 …. 15.61 s 535 …. 15.89 s 540 …. 15.61 s 540A …. 11.54 s 542 …. 11.54 s 547 …. 15.54 s 548 …. 2.56, 15.41 s 567 …. 15.87 s 608 …. 15.43

Sch 1 …. 15.26 Sch 2 …. 15.48, 20.4 Sch 2 item 37 …. 16.15 Sch 3 …. 8.21, 11.54, 16.15, 16.37 Sch 4 …. 15.33, 15.38, 15.39, 15.66, 15.71, 15.92, 15.106, 16.32, 22.63 Environmental Protection Act 2004 s 126 …. 18.65 Environmental Protection (Air) Policy 2008 …. 15.24 Sch 1 …. 15.38 Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 …. 15.18 Environmental Protection (Noise) Policy 2008 s 9 …. 15.24 Environmental Protection Regulation 2008 Ch 3 …. 15.59 Ch 5 Pt 3 …. 15.24 Ch 6 …. 15.10 Ch 7 Div 1 …. 15.30 Ch 7 Div 2 …. 15.30 cll 14–25 …. 15.59 cl 65 Sch 7 Pt 2 …. 16.15 Pt 9 …. 16.18 reg 9 …. 11.54 reg 22F …. 12.21 reg 24AA …. 18.65 reg 51(1)(c) …. 15.57 reg 78 …. 15.24 s 17 …. 11.54 ss 22B–22E …. 12.21

ss 24A–32 …. 12.21 Sch 2 …. 11.54, 15.59 Sch 2E …. 16.18 Sch 2F …. 16.18 Sch 7 …. 16.15 Environmental Protection (Waste Management) Regulation 2000 Pt 6A …. 16.15 Environmental Protection (Water) Policy 2009 …. 15.24 Sch 1 …. 15.38 Fauna Conservation Act 1974 …. 14.47 s 54 …. 14.66 s 64 …. 5.43 Fisheries Act 1994 …. 12.62 Pt 5 …. 12.62 Pt 6 …. 18.9 s 3 …. 18.9 s 42A …. 18.48 ss 120–125 …. 12.62 s 125 …. 15.93 Forestry Act 1959 …. 13.25 s 34A …. 12.66 ss 34C–34E …. 12.66 s 61J(5) …. 3.10 s 61K …. 17.46 Freedom of Information Act 1992 …. 22.24 Geothermal Energy Act 2010 …. 11.49 s 10 …. 18.62 s 28 …. 9.6

Greenhouse Gas Storage Act 2009 …. 11.49 Integrated Planning Act 1997 …. 9.36, 9.41, 10.2, 10.3, 11.42 s 1.3.5 …. 11.48 s 2.2.1 …. 9.2 s 4.1.21 …. 21.4 s 232 …. 11.42 s 238 …. 11.42 s 314 …. 11.42 s 701 …. 11.42 Integrated Resort Development Act 1987 …. 10.54 Judicial Review Act 1991 …. 11.51, 22.19 Pt 4 …. 22.21 s 7 …. 19.20 s 20 …. 19.4 ss 20–24 …. 22.20 s 26 …. 22.26 s 49 …. 21.23, 21.37 s 50 …. 21.23 Justices Act 1886 s 5 …. 20.26 Land Act 1994 …. 9.7 s 198A …. 13.67 s 198B …. 13.67 s 199 …. 3.51, 13.6, 13.66, 18.77 s 203 …. 13.66 s 214 …. 3.52, 13.66, 18.77 Mineral Resources Act 1989 …. 2.72, 11.49 Pt 7 …. 3.9

s 8 …. 3.8, 9.6 s 235(3) …. 2.72 s 319 …. 18.62 s 319A …. 18.62 s 383 …. 18.5 s 383(3) …. 18.62 Sch 2 …. 12.69 Minerals and Energy Resources (Common Provisions) Act 2014 …. 18.65 s 3(c) …. 18.65 s 9 …. 18.65 Mount Isa Mines Limited Agreement Act 1985 …. 10.65 National Environment Protection Council (Qld) Act 1994 …. 15.3 s 6(1) …. 15.4 s 14(1) …. 15.4 s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6 s 18 …. 15.6 s 19 …. 15.6 s 21 …. 15.6 s 28(1) …. 15.6 Nature Conservation Act 1992 …. 2.13, 12.42, 12.48, 12.66, 12.67, 14.45, 14.48, 14.66, 14.67 Dictionary …. 12.48, 14.44, 14.46, 14.47, 14.49 Pt 4A …. 12.66 s 5 …. 12.48 s 5(d) …. 14.45 s 5(e) …. 14.45 s 6 …. 12.48

s 7 …. 3.8 s 8 …. 12.48, 14.45 s 9 …. 12.48 s 11 …. 12.48 s 12 …. 14.90 s 13 …. 12.48, 14.49, 14.79 s 16 …. 12.49 s 17 …. 12.49 ss 17–19 …. 14.67 s 18 …. 12.49 s 19 …. 12.49 s 19A …. 12.49 s 20 …. 12.49 s 21 …. 3.16, 12.49 s 22 …. 12.49 s 23 …. 12.49 s 24 …. 12.49 s 24(3) …. 3.50 s 25 …. 12.49 s 26 …. 12.49 s 27 …. 12.60, 12.69, 18.62 s 29 …. 7.51 s 29(1) …. 13.38 s 34 …. 12.75 ss 36–38 …. 12.49 s 39 …. 12.42 s 40 …. 12.42 s 41 …. 12.42

ss 42AG–42AP …. 12.68 s 45 …. 7.47 s 46 …. 13.38 s 49 …. 12.2 s 56 …. 3.8 s 61 …. 2.13 s 62 …. 2.13, 12.71, 14.46 s 67 …. 12.75 s 68 …. 12.48 s 70A …. 12.66 s 70F …. 12.66 s 70I …. 12.66, 12.70 ss 70J–70O …. 12.66 s 70QA …. 12.69 s 71 …. 14.44 s 72 …. 14.45 s 72(3) …. 14.45 s 73 …. 14.45, 14.90 ss 73–75 …. 14.45 ss 76–79 …. 14.79 ss 76–80 …. 14.44 s 81 …. 7.36, 14.44 s 82 …. 14.44 s 83 …. 3.8, 14.46 ss 83–87 …. 2.13 s 84 …. 3.8, 14.46 s 85 …. 14.46 s 88 …. 14.46

s 88(3) …. 20.83 s 88(3)(a) …. 20.83 s 89 …. 14.46 s 90 …. 14.81 s 93 …. 14.67 s 93(2) …. 14.67 s 93(3) …. 14.67 s 93(4) …. 14.67 s 97 …. 14.49, 14.81 s 102 …. 12.67, 20.4 s 103 …. 14.90 ss 104–109 …. 12.67 ss 112–116 …. 14.45 s 117 …. 9.17 ss 118–126 …. 14.45 s 123 …. 14.79 s 125 …. 12.73 s 126 …. 12.75 s 168 …. 12.76 s 169 …. 12.76 s 173A …. 20.13 s 173D …. 20.13 s 173F …. 20.13 s 173I …. 12.76, 20.13 s 319 …. 3.50 s 358 …. 3.50 s 493A(3) …. 3.50 s 494A(4) …. 3.50

Nature Conservation Amendment Act 2004 …. 18.59 Nature Conservation (Protected Areas Management) Regulation 2006 …. 12.49 Nature Conservation (Wildlife) Regulation 2006 …. 14.45 reg 14 …. 14.79 reg 14(i) …. 14.79 reg 19 …. 14.79 reg 19(i) …. 14.79 reg 29(k) …. 14.79 Schs 1–3 …. 14.79 Sch 5 …. 14.79 Nature Conservation (Wildlife Management) Regulation 2006 …. 14.45 Offshore Minerals Act 1998 …. 18.59 Petroleum Act 1923 …. 18.59 s 4 …. 18.59 s 80J …. 18.59 Petroleum and Gas (Production and Safety) Regulation 2004 …. 18.65 s 35 …. 18.65 s 35A(3)(d) …. 18.65 s 46A(3)(h) …. 18.65 Planning Act 1999 s 75A …. 13.31 Planning Regulation 2009 reg 5 …. 9.49 Police Powers and Responsibilities Act 2008 Pt 3 Div 1 …. 15.96 Pt 3 Div 2 …. 15.96 Pollution of Waters by Oil Act 1973 s 9 …. 20.76

Queensland Heritage Act 1992 …. 5.47, 7.46 s 58 …. 20.4 s 66 …. 20.8 Radiation Safety Act 1999 …. 15.131 s 17 …. 15.131 Recreation Areas Management Act 2006 …. 12.49 s 4 …. 12.49 s 6 …. 12.49 s 7 …. 12.49 Regional Planning Interests Act 2014 …. 9.65, 12.49 Pt 2 Div 2 …. 12.49 Pt 3 …. 12.49 Pt 4 …. 9.65 s 7 …. 9.65 s 10 …. 9.65 s 11 …. 9.65, 12.49 s 19 …. 9.65 s 27 …. 9.65 s 28 …. 9.65 s 59 …. 9.65 Regional Planning Interests Regulations 2014 Pt 3 …. 9.65 reg 4 …. 12.49 regs 7–10 …. 12.49 Sch 2 …. 9.65 Rundle Oil Shale Agreement Act 1980 …. 10.65, 15.78 Sanctuary Cove Resort Act 1985 …. 10.67 Soil Conservation Act 1986

Pt 4 …. 18.77 s 10 …. 18.77 State Development and Public Works Organisation Act 1971 (SDPWOA) …. 9.35, 10.33, 10.53, 10.60, 11.4, 11.41, 11.45, 13.25 Pt 4 Div 4 …. 10.33 s 13 …. 11.51 s 25 …. 11.45 s 26 …. 10.53, 10.60, 11.6, 11.8 s 26(1) …. 11.45 s 26(1)(b) …. 11.46 s 26(2) …. 11.46 s 26(3) …. 11.46 s 27 …. 10.60, 11.8, 11.45 s 27(2) …. 11.45 s 27AA …. 10.60, 11.45 s 27AB …. 11.46 s 27AC …. 11.46 s 27AD …. 11.45 s 27A …. 11.46 s 29 …. 11.6, 11.8, 11.46 s 30 …. 11.46 s 31 …. 11.46 ss 32–34 …. 11.46 s 32(4) …. 11.46 ss 34A–34C …. 11.46 s 34D …. 11.46 s 34E–34L …. 11.46 s 35A …. 11.46 s 35C …. 11.46

s 35E …. 11.46 s 35F …. 11.46 s 35G …. 11.46 s 35H …. 11.46 ss 35I–35L …. 11.46 s 35K …. 11.46 s 35L …. 11.46 ss 36–42A …. 11.48 s 37 …. 11.48 s 39 …. 11.48 s 39(4) …. 11.48 ss 44–46 …. 11.49 s 45 …. 11.46 s 47A …. 11.49 s 47C …. 11.46 s 49B …. 11.46 ss 49D–49G …. 11.49 s 49E …. 11.46 s 49G …. 11.46 ss 50–54 …. 11.50 s 52 …. 11.50 s 54 …. 11.50 s 54B …. 11.50 s 54C …. 11.50 s 54D …. 11.50 s 54E …. 11.50 s 54G …. 11.50 s 55 …. 10.53

s 57 …. 10.53 s 67 …. 10.53 s 76A …. 11.51 s 76D …. 11.52 s 76E(1) …. 11.51 s 76E(2) …. 11.51 s 76E(4) …. 11.51 s 76EA …. 11.51 s 76F …. 11.51 s 76G …. 11.51 s 76H …. 11.51 s 76I …. 11.52 s 76I(6) …. 11.52 s 76I(7) …. 11.52 s 76J …. 11.52 s 76J(7) …. 11.52 s 76J(8) …. 11.52 s 76J(9) …. 11.52 s 76K …. 11.52 s 76L …. 11.52 s 76M …. 11.52 s 76M(4) …. 11.52 s 76N …. 11.52 s 76N(d) …. 11.52 s 76N(e) …. 11.52 s 76O …. 11.52 s 76O(2) …. 11.52 s 76O(3) …. 11.52

s 76O(4A) …. 11.52 s 76O(5–7) …. 11.52 s 76P …. 11.52 s 76P(2) …. 11.52 s 76P(3) …. 11.52 s 76Q …. 11.52 s 76R …. 11.52 s 76S …. 11.53 s 76T(1) …. 11.53 s 76T(2) …. 11.53 s 76V …. 11.52 s 76W …. 11.51 State Development and Public Works Organisation Regulation 2010 reg 26A …. 11.47 reg 35 …. 11.46 Sch 1 …. 11.46 Sch 1AA …. 11.47 Strategic Cropping Land Act 2011 …. 9.65, 18.78 Sustainable Development Act 1999 …. 18.56 Sustainable Planning Act 2009 …. 7.22, 7.26, 9.36, 9.48, 10.2, 10.6, 10.33, 11.4, 11.41, 11.54, 13.25, 15.19, 16.32, 18.56, 21.40 Ch 7 Pt 1 …. 2.72 Ch 7 Pt 2 …. 22.2 Pt 8 …. 9.25 s 3 …. 9.1 ss 3–5 …. 7.22, 7.26 s 4 …. 9.36, 10.34 s 5 …. 9.36, 10.34 s 5(2) …. 8.56

s 5(3) …. 9.36 s 7 …. 10.2 s 8 …. 8.19, 8.37 s 10 …. 10.2, 10.33 s 14 …. 9.35 s 17(1) …. 9.41 s 19 …. 9.43 s 22 …. 9.44 s 24 …. 9.41 s 26(3) …. 9.41 s 28 …. 9.46 s 38 …. 9.57 s 40 …. 9.44 s 41 …. 9.41 s 42 …. 9.41 s 43 …. 9.43 s 50 …. 9.39, 9.49 s 51 …. 9.41 s 57 …. 9.48, 22.43 s 80 …. 9.41 s 88 …. 9.57 s 89(2) …. 9.57 s 102 …. 9.41 s 105 …. 9.57 s 109 …. 9.41 s 119 …. 9.49, 22.43 ss 125–130 …. 9.49 s 147 …. 22.43

s 194 …. 22.43 s 230 …. 10.33 s 231(2) …. 10.2, 10.32 s 232 …. 10.34 s 232(1) …. 11.46 s 232(1)(a) …. 10.32 s 232(1)(b) …. 10.32 s 232(1)(c) …. 10.32 s 232(2) …. 10.32 s 232(3) …. 10.32 s 233 …. 10.34 s 233(2) …. 10.34 s 233(3) …. 10.34 s 233(4) …. 10.34 s 235 …. 10.32 ss 235–238 …. 10.5 s 236(1) …. 10.32 s 236(2) …. 10.5, 10.32 s 237(1) …. 10.32 s 237(2) …. 10.5, 10.32 s 238 …. 10.32 s 239 …. 10.32 s 246 …. 11.43 s 250 …. 10.6 ss 250–252 …. 10.33 s 251 …. 10.6 s 257(1) …. 10.33 s 257(2) …. 10.33

s 257(3) …. 10.33 s 260 …. 10.34, 11.43 s 261 …. 10.34, 11.43 s 266 …. 10.34 s 267 …. 10.34 s 269 …. 10.34 ss 270–293 …. 10.34 s 272 …. 11.43 s 276 …. 11.43 s 278 …. 11.6, 11.43 s 278 …. 10.34 s 287 …. 10.6 s 290 …. 10.35 s 292 …. 10.6 ss 294–307 …. 11.43 s 295 …. 10.35 s 295(1)(a) …. 10.35 s 296 …. 10.35 s 305(2) …. 10.35 s 305(3) …. 10.35 s 313 …. 10.34, 11.42 ss 313–317 …. 10.35 s 314 …. 11.42, 11.43 s 324 …. 10.36, 11.44 s 325(4) …. 10.6 s 326 …. 10.36, 11.44 s 326(1)(b) …. 9.41 s 367 …. 10.36

s 369(1) …. 10.36 s 378 …. 10.36 s 393 …. 10.32 ss 417–419 …. 10.60 ss 423–433 …. 10.60 s 424 …. 10.36 s 427 …. 10.60 s 427(5) …. 10.60 s 440 …. 10.34, 10.36 s 456 …. 21.23 s 457 …. 22.9 s 461 …. 10.70, 19.4 s 462 …. 10.70 s 463 …. 10.70 s 469 …. 19.54 s 482 …. 22.3 s 485 …. 22.3 s 491 …. 22.13 s 495 …. 22.7 s 528 …. 10.2 s 574 …. 10.8, 10.32 s 575 …. 10.32 s 578 …. 10.32 s 588 …. 20.4 s 590 …. 20.4, 20.25 s 597 …. 19.40 s 598 …. 19.48 s 600 …. 19.48

s 601 …. 19.40, 20.12 s 602 …. 19.48 s 607 …. 19.48 ss 681–685 …. 9.53 s 687 …. 9.53 s 688 …. 11.42, 11.43 ss 688–700 …. 10.36 s 690 …. 11.6, 11.13, 11.43 s 691 …. 11.43 s 692 …. 11.43 s 694 …. 11.43 s 695 …. 11.43 s 696 …. 11.43 s 697 …. 11.43 ss 697–700 …. 11.14 s 698 …. 11.43 s 699 …. 11.43 s 700 …. 11.43 Sch 1 …. 10.32 Sch 1 item 3 …. 13.25 Sch 3 …. 9.44, 10.8, 10.32, 10.33, 10.34, 10.35, 10.36, 16.32 Sch 3 Pt 1 Column 2 …. 10.32 Sch 24 …. 10.33 Sustainable Planning Regulation 2009 …. 10.2 reg 5 …. 9.49 reg 32 …. 11.6, 11.8, 11.42 regs 32–39 …. 10.36 reg 33 …. 11.42

reg 34 …. 11.9, 11.43 reg 37 …. 11.43 s 9(1)(a) …. 10.32 s 9(1)(b) …. 10.32 s 11 …. 10.34 s 18 …. 10.32 s 19 …. 10.32 Sch 3 …. 10.5, 10.6, 11.8, 11.42, 11.43 Sch 3 Pt 2 …. 10.32 Sch 5 …. 10.8, 10.34, 11.42 Sch 6 …. 10.34 Sch 7 …. 10.6, 10.33, 10.34, 11.43, 18.14 Sch 18 …. 10.32 Sch 19 …. 10.32 Sch 24 …. 11.8 Toowong Railway Station Development Project Act 1985 …. 10.67 Torres Strait Islander Cultural Heritage Act 2003 s 23 …. 3.51 s 28 …. 3.52 Torres Strait Islander Land Act 1991 s 2.02 …. 14.67 Transport Operations (Marine Pollution) Act 1995 …. 15.114 s 26(1) …. 15.126 Transport Operations (Road Use Management — Vehicle Standards and Safety) Regulation 2010 Sch 1 Pt 9 …. 15.24 Tweed River Entrance Sand Bypassing Project Agreement Act 1998 s 6 …. 7.19 Vegetation Management Act 1999 …. 5.55, 10.6, 10.33, 13.23, 13.24, 13.25

Dictionary …. 13.25 Pt 2 Div 5B …. 13.24 Pt 2 Div 6 …. 10.33 Pt 3 Div 8 …. 20.28 s 3 …. 13.24 s 3(2) …. 13.24 s 3(2)(e) …. 13.24 s 4 …. 13.25 s 7 …. 13.24 s 8 …. 13.25 s 8(b) …. 13.24 s 10 …. 13.25 s 11–15 …. 13.25 ss 16–18 …. 13.25 s 19 …. 13.25 ss 19E–19G …. 13.25 s 19F …. 13.38 s 19H …. 13.25 s 19N …. 13.25 s 19O …. 13.25 ss 19O–19R …. 13.25 s 19P …. 13.25 s 19Q …. 13.25 ss 19S–19X …. 13.25 s 19W …. 13.25 ss 19Y–19ZG …. 13.25 s 20 …. 13.25 s 20A …. 13.24

ss 20AA–20AJ …. 13.24 s 20AK …. 13.24 ss 20AL–20AO …. 13.24 s 20B …. 13.24 s 20BA …. 13.24 ss 20C–20H …. 13.24 s 20M …. 13.24 s 20W …. 13.24 s 20X …. 13.24 s 21 …. 13.25 s 22 …. 13.25 s 22A …. 11.46, 13.25 s 22A(2)(a) …. 11.46 s 22DAC …. 13.25 s 22DE …. 13.25 s 22DG …. 13.35 s 22DK …. 13.36 s 22E–22L …. 13.25 ss 22LA–22LC …. 13.24 s 33O …. 13.25 s 54A …. 20.4 s 54B …. 20.4 s 55 …. 13.26 s 57 …. 13.23, 13.24 s 62 …. 13.26 s 67B …. 13.26 s 70A …. 13.25 Vegetation Management (Regrowth Clearing Moratorium) Act 2009 …. 13.23

Vegetation Management Regulation 2012 reg 5 …. 13.25 reg 6 …. 13.25 reg 11 …. 13.25 Schs 1–3 …. 13.24 Sch 4 …. 13.25 Sch 5 …. 13.25 Sch 6 …. 13.25 Waste Reduction and Recycling Act 2011 Ch 2 …. 16.3 Ch 6 …. 16.2, 16.3 Ch 7 …. 16.3 Ch 8 …. 16.2, 16.3 s 3 …. 16.3 s 4 …. 16.3 s 4(2) …. 16.3 s 9 …. 16.1, 16.3 s 10 …. 16.3 s 11 …. 16.3 s 12 …. 16.3 s 13 …. 16.3 s 15(2) …. 16.2 s 61 …. 16.3 s 62 …. 16.3 s 63 …. 16.3 s 67 …. 16.3 s 156 …. 16.3 s 271 …. 16.10

Water Act 2000 …. 2.72, 18.29 Ch 3 …. 18.18 s 206(1)(b) …. 2.72 s 882 …. 22.9 Water (Commonwealth Powers) Acts 2008 …. 18.33 Water Resources Act 1989 s 4 …. 7.33, 15.93 s 40 …. 15.93 s 46 …. 7.33 Wild Rivers Act 2005 …. 12.49, 12.72 s 3 …. 12.49 ss 7–18 …. 12.49 ss 41–44 …. 12.72

South Australia Aboriginal Heritage Act 1988 s 6 …. 22.35 s 23 …. 22.35, 22.44 Acts Interpretation Act 1915 s 22 …. 2.65 Adelaide Dolphin Sanctuary Act 2005 s 32 …. 3.51 s 37 …. 3.52 Adelaide Railway Station Development Act 1984 …. 10.67 Australian Formula One Grand Prix Act 1984 …. 10.67 Beverage Container Act 1975 …. 5.44, 16.8 Botanic Gardens and State Herbarium Act 1978 s 13(1) …. 12.2 Coast Protection Act 1972 …. 18.57

s 19 …. 18.57 s 20 …. 18.57 s 21 …. 18.57 Coast Protection Regulations 2015 reg 4 …. 18.57 Constitution Act 1934 …. 5.39 Criminal Law (Sentencing) Act 1988 s 9D …. 20.119 s 11(1)(a)(iv) …. 20.98 s 16 …. 20.112 Crown Lands Act 1929 …. 9.7, 13.67 s 249C(1) …. 13.67 Crown Land Management Act 2009 …. 13.67 s 5 …. 13.67 s 8 …. 13.68 s 35 …. 13.67 s 49 …. 13.67 Sch 1 …. 13.67 Development Act 1993 …. 3.46, 8.38, 9.34, 9.37, 10.2, 10.38, 11.4, 11.67, 13.10, 13.33, 22.52 s 3 …. 9.37, 9.58 s 3(a) …. 9.1 s 4 …. 10.2, 10.37, 11.60, 13.33 s 4(4) …. 11.63 s 4(5) …. 11.64 s 4(6) …. 11.64 s 4(9) …. 11.65 s 6 …. 10.2 s 6(2) …. 11.59

s 7(1) …. 9.34 s 8(1) …. 11.59 s 8(2) …. 11.59 s 8A …. 11.59 ss 8B–8G …. 11.59 s 8C(1)(b)(ii) …. 11.59 s 9 …. 11.59 s 10 …. 11.99 s 11 …. 11.99 s 22 …. 9.37, 9.41 s 22(8) …. 9.41 s 22(10) …. 9.41 s 23 …. 9.37, 9.58 ss 24–27 …. 9.49 s 25 …. 10.38 s 25(7)(d) …. 9.49 s 25(8)(b)(ii) …. 9.49 s 25(9)(b) …. 9.49 s 26(5a)(b) …. 9.49 s 26(5b)(b) …. 9.49 s 26(11) …. 9.49 s 26(d)(ii) …. 9.49 s 32 …. 10.5 s 35 …. 10.5, 22.48 s 36 …. 10.37 s 37 …. 10.38, 18.57 s 38 …. 10.9, 10.70, 15.59 s 38(1) …. 10.37

s 38(2)(a) …. 10.37 s 38(2)(b) …. 10.37 s 38(2)(c) …. 10.37 s 38(2a) …. 10.9, 10.37, 10.38 s 38(3) …. 10.37 s 38(3)–(5) …. 10.37 s 38(3)(a) …. 10.9 s 38(6)–(18) …. 10.37 s 46 …. 10.57, 11.6, 11.60, 11.67 ss 46–46D …. 11.63 s 46(1)(a) …. 11.62 s 46(1a) …. 10.57 s 46(2) …. 11.63 s 46(6) …. 11.63 s 46(7) …. 11.65 ss 46(7)–(15) …. 10.57 s 46(10) …. 11.65 s 46(11) …. 11.65 s 46(13) …. 11.65 ss 46B–46D …. 10.57, 11.66 s 46B(4) …. 11.13 s 46B(5)(a) …. 11.66 s 46B(5)(b) …. 11.66 s 46B(8) …. 11.66 s 46B(9) …. 11.66 s 46B(10) …. 11.66 s 46C(5)(a) …. 11.66 s 46C(5)(b) …. 11.66

s 46C(8) …. 11.66 s 46C(9) …. 11.66 s 46C(10) …. 11.66 s 46D(5)(a) …. 11.66 s 46D(5)(b) …. 11.66 s 46D(7) …. 11.66 s 46D(8) …. 11.66 s 46D(9) …. 11.66 s 47 …. 11.93 s 48 …. 10.57 s 48(4) …. 11.11 s 48(5)(da) …. 3.52 s 48(5)(db) …. 3.52 s 48(5)(dc) …. 3.52 s 48(7) …. 11.93 s 48C(1)(a) …. 11.66 s 48C(1)(b) …. 11.66 s 48C(2) …. 11.66 s 48D(2) …. 11.66 s 48E …. 11.60 s 49 …. 9.34, 10.7, 11.60 s 49(7a) …. 11.65 s 49A …. 11.60 s 49A(7a) …. 11.65 s 54A …. 13.33 s 54B …. 13.33 s 57 …. 9.30, 10.38, 10.47 s 57A …. 10.47

s 74 …. 10.37 s 75(4) …. 11.67 s 75(4a) …. 11.67 s 75A …. 11.67 s 84 …. 20.4 s 85 …. 20.13 s 86(1)(d)(ii) …. 20.4 Sch 22 …. 11.8 Development Control Regulations 1982 Sch 3 …. 13.10 Development Regulations 1993 …. 8.65 cl 6A …. 10.37 cl 32 …. 10.70 cll 33–42 …. 10.9 reg 63 …. 11.65 regs 63D–63F …. 11.63 reg 69B …. 11.65 Sch 2 …. 11.61 Sch 3 …. 11.61 Sch 8 …. 11.65 Sch 9 …. 10.9, 10.70 Sch 9 para 2(1)(f) …. 22.52 Sch 20 …. 11.65 Sch 22 …. 10.37, 10.70, 11.62 Development Regulations 2008 …. 10.2 reg 6A …. 10.2, 13.33 reg 24 …. 10.38 reg 25 …. 10.38

reg 32 …. 10.37 Sch 8 cl 10 …. 10.38 Sch 8 cl 11 …. 10.38 Sch 8 Table 2 …. 18.57 Sch 9 …. 10.37 Sch 21 …. 10.38 Sch 22 …. 10.38 Electricity Act 1996 s 47 …. 7.19 ss 55B–55L …. 7.19 s 55N …. 7.19 Electricity (Principles of Vegetation Clearance) Regulations 1996 …. 13.10 Electricity (Principles of Vegetation Clearance) Regulations 2010 …. 7.20 Environment Health Act 1987 s 21 …. 15.93 Environment Protection Act 1993 …. 7.24, 10.37, 10.38, 15.67 Pt 5 …. 15.38 Pt 6 Div 5 …. 15.43 Pt 8 Div 2 …. 16.8 s 3 …. 15.25, 15.29, 16.15, 20.35 s 3(1) …. 16.15 s 5 …. 15.26 s 5(4) …. 15.28 s 5(5) …. 15.25 s 5B …. 16.25, 16.38 s 7 …. 7.19 s 8 …. 3.16 s 10 …. 7.24

s 10(1)(b) …. 22.63 s 10(1)(b)(i)(a) …. 16.2 s 11 …. 10.38 s 23A …. 16.39 s 25 …. 3.50, 15.35 s 25(2) …. 15.35 s 25(3) …. 3.50, 15.36 s 25(4) …. 3.50, 15.36 s 27 …. 15.38 s 27(2)(a) …. 15.39 s 28 …. 15.40 ss 28–30 …. 15.38 s 28(2) …. 15.38 s 28(9) …. 15.40 s 28A …. 15.15 s 29 …. 15.40, 16.10 s 30 …. 15.40 s 31 …. 15.40 s 33 …. 10.37 s 34 …. 15.38 s 34(1) …. 15.111 s 34(2) …. 15.111 s 35 …. 15.57, 15.58 s 35(1) …. 10.38 s 35(2) …. 10.38 s 36 …. 15.59, 15.111 s 37 …. 15.78 s 39 …. 15.61

s 43 …. 15.62 s 44 …. 15.46, 15.47 s 45 …. 15.75 ss 45–47 …. 15.63 s 45(5) …. 15.111 s 47 …. 15.66, 22.63 s 47(2)–(4) …. 15.67 s 49(3) …. 15.64 s 51 …. 15.43, 15.77 ss 51–54 …. 15.74 s 51(5) …. 15.77 s 52 …. 15.43, 15.81, 15.82 s 52(2) …. 20.69 s 52(3) …. 15.82 s 52A …. 15.43 s 54 …. 15.43, 15.46 s 54A …. 10.37 s 54B …. 10.37 s 54C …. 15.58 s 55 …. 15.63 s 55(1) …. 15.79 s 55(1)(b) …. 15.79 s 55(1)(c) …. 15.79 s 56 …. 15.79 s 57 …. 10.38, 15.67, 22.63 s 58 …. 15.86 s 58(6) …. 15.88 s 59 …. 15.74, 16.38

s 59(1) …. 15.43 s 60 …. 15.74, 16.38 s 64 …. 15.61 ss 68–71 …. 15.59, 15.75 s 68(4) …. 16.8 s 69C …. 7.13, 16.8 s 71 …. 7.13 s 74 …. 15.59 s 75 …. 15.59, 15.78 s 78 …. 15.78 s 79 …. 15.107, 20.24, 20.35 s 79(1) …. 15.107 s 79(2) …. 15.107 s 79(3) …. 15.107 s 80 …. 15.107, 20.35 s 80(1) …. 15.107 s 80(2) …. 15.107 s 80(3) …. 15.107 s 81 …. 15.107 s 82 …. 15.107, 20.35 s 83 …. 15.37 s 83A …. 16.38 s 84 …. 20.81 s 91B …. 16.39 s 91C …. 16.39 s 91D …. 16.39 s 91I …. 16.39 s 93 …. 15.91, 15.93, 15.101

ss 93–95 …. 20.4 s 93(2) …. 15.91 s 93(8) …. 15.92, 15.111 s 93A …. 15.91, 15.111 s 94 …. 15.98 s 95 …. 15.98 s 96(5) …. 15.111 s 99 …. 15.91 s 99–103 …. 20.4 s 99(8) …. 15.111 s 101 …. 20.7 s 103C(1) …. 16.38 s 103C(2) …. 16.38 s 103C(3) …. 16.38 s 103D …. 16.38 s 103H …. 16.38, 20.4 s 103H(2)(g) …. 16.45 s 103I …. 16.38 s 103J …. 16.38 s 103J(2)(j) …. 16.45 s 103K …. 16.38 s 103N …. 16.38 ss 103U–103W …. 16.44 s 103X …. 16.44 s 103Z(4) …. 16.45 s 103ZA …. 16.45 s 103ZB …. 20.35 s 104 …. 16.43, 19.36

s 104(1) …. 15.113 s 104(1)(a) …. 15.113 s 104(2) …. 15.113 s 104(7) …. 19.41 s 104(7)(a) …. 15.113 s 104(7)(b) …. 15.113 s 104(7)(c) …. 15.113 s 104(8) …. 15.113, 19.41 s 104A …. 20.15 s 105 …. 15.101 s 106 …. 15.88 s 106(1)(d) …. 16.47, 20.4 s 106(3)(a) …. 16.47 s 106(4) …. 16.47 s 107 …. 15.89 s 107(3) …. 16.47 s 109 …. 15.61 s 112 …. 15.54 s 113 …. 16.6 s 119 …. 20.35 s 124 …. 20.81, 20.91 s 124(1) …. 20.70, 20.86 s 124(3) …. 20.73, 20.81 s 126 …. 20.39, 20.42 s 127 …. 20.35, 20.57 s 127(1)(b) …. 20.54 s 127(2) …. 20.54 s 129 …. 20.59

s 129(1)(a) …. 20.86 s 129(2) …. 20.59 s 133 …. 20.116 s 133(1) …. 15.112 s 133(1)(a) …. 15.112 s 133(1)(b) …. 15.112 s 133(1)(c) …. 15.112 s 133(1)(d)(i) …. 15.112 s 133(1)(d)(ii) …. 15.112 s 133(1a) …. 15.113 s 139(5) …. 20.30 Sch 1 …. 10.37, 10.38, 11.65, 11.66, 15.57, 15.59 Sch 1 Pt A …. 15.59, 16.15 Sch 1 Pt A item 4 …. 16.15 Sch 1 Pt B …. 16.15 Sch 2 cl 5 …. 15.38 Environment Protection (General) Regulations 1994 reg 10 …. 15.61 Environment Protection (Motor Vehicle Fuel Quality) Policy 2002 …. 15.24 Environment Protection Regulation 2009 Pt 5 Div 2 …. 16.44 Pt 6 …. 16.6 reg 21 …. 15.63 reg 30 …. 15.72 reg 32 …. 15.72 regs 35–38 …. 15.74 reg 50 …. 16.38 reg 51 …. 16.38

reg 67 …. 16.47 Sch 3 …. 16.38 Environment Protection (Used Packaging Materials) Policy 2007 …. 16.10 Environment Protection (Waste to Resources) Policy 2010 …. 16.1 Environment Protection (Water Quality) Policy 2003 …. 15.24 Environment, Resources and Development Court Act 1993 …. 2.72 s 7(4) …. 20.24 s 8 …. 20.24 s 16 …. 22.13 s 17 …. 22.3 s 17(1) …. 19.56 s 17(2) …. 19.56 s 17(4) …. 22.9 s 17(4a) …. 22.9 s 17(5) …. 19.54 s 27 …. 22.11 s 28 …. 21.4 s 28A …. 21.4, 21.5 s 28B …. 22.13 s 28C …. 21.4 s 29 …. 21.23 s 44 …. 21.23 Environmental Protection (Noise) Policy 2007 cl 3 …. 15.24 cl 12 …. 15.24 Fire and Emergency Services Act 2005 …. 7.19 s 5 …. 7.19 Fisheries Management Act 2007 …. 2.13, 12.63, 14.53

s 4 …. 12.63 s 7 …. 12.63 s 7(1)(a) …. 9.1 s 8 …. 12.63 s 8(2) …. 12.63 s 8(3) …. 12.63 s 9 …. 12.63 s 43 …. 18.43, 18.44 s 50 …. 18.47 Forest Property Act 2000 s 12 …. 3.10 Forestry Act 1950 …. 14.54 s 3(1)(b) …. 12.66 s 9 …. 12.66 s 9A …. 12.66 Freedom of Information Act 1991 …. 22.24 Golden Grove (Indenture Ratification) Act 1984 …. 10.65 Heritage Act 1978 …. 13.10 Heritage Places Act 1993 …. 12.51 Pt 6 …. 7.47 s 25 …. 12.51 s 26 …. 12.51 s 30 …. 20.4 s 31 …. 20.4 ss 32–35 …. 12.51 s 38 …. 20.8 Land Acquisition Act 1969 …. 2.28, 18.48 Local Government Act 1934

s 235 …. 16.16 s 666b …. 3.21 Local Government Act 1999 …. 3.46 s 254 …. 3.54 Marine Parks Act 2007 …. 12.63 s 4 …. 12.63 s 5 …. 12.63 s 10 …. 12.63 ss 11–16 …. 12.63 s 12 …. 12.63 s 21 …. 2.26 s 37 …. 3.51 s 37(4) …. 3.52 MFP Development Act 1992 …. 10.67 Mining Act 1971 …. 11.67, 18.61 s 10B …. 18.59 s 16 …. 9.6 s 60 …. 18.59 ss 70A–70H …. 18.60 s 73H …. 18.59 Mining Act 1991 s 70A …. 18.61 s 70B …. 18.61 s 70E …. 18.59 s 70F …. 18.59 s 74A …. 18.59 s 74AA …. 18.59 Mining Regulations 2011

regs 65–68 …. 18.60 reg 67 …. 18.60 National Environment Protection Council (SA) Act 1995 …. 15.3 s 6(1) …. 15.4 s 14(1) …. 15.4 s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6 s 18 …. 15.6 s 19 …. 15.6 s 21 …. 15.6 s 28(1) …. 15.6 National Parks and Wildlife Act 1972 …. 12.51, 12.68, 13.67, 14.51, 14.54 s 3 …. 14.53, 14.55 s 3(2) …. 12.51 s 5 …. 14.51 s 25 …. 12.69 s 26 …. 12.51, 12.73 ss 27–34A …. 12.51 s 28 …. 12.51, 12.69 s 29 …. 12.51 s 30 …. 12.51 s 32 …. 12.73 s 33 …. 12.51 s 34A …. 12.51 s 38 …. 12.67 s 40 …. 9.21, 12.73 s 43 …. 12.69

ss 43D–43L …. 12.68 s 44 …. 7.52 s 45 …. 14.53, 14.54 ss 47–49 …. 14.54 s 48 …. 14.54 s 51 …. 14.52 s 52 …. 14.52 s 53 …. 14.52 s 53A …. 14.52 s 54 …. 14.53 s 55 …. 13.67 s 56 …. 13.67 s 57 …. 13.67 ss 58–60 …. 14.53 s 58(4) …. 14.52 ss 60B–60F …. 14.52 s 60BA …. 14.52 s 60G …. 14.52 ss 60G–60L …. 14.52 s 60J …. 14.52 s 65 …. 14.53 s 66 …. 14.53 s 67 …. 14.53 s 68 …. 14.52 s 68A …. 14.53 ss 68C–68E …. 14.68 s 72(2)(2)(b) …. 14.53 s 75A …. 14.51

s 95 …. 14.50 s 95(2) …. 14.50 s 168 …. 14.50 s 169 …. 14.50 s 173D …. 14.50 s 173D(2) …. 14.50 s 173F …. 14.50 s 173I …. 14.50 Schs 3–6 …. 12.51 Schs 7–9 …. 14.51, 14.54, 14.79 Sch 10 …. 14.51 National Parks and Wildlife (Hunting) Regulations 1996 …. 14.52, 14.53 National Parks and Wildlife (Kangaroo Harvesting) Regulations 2003 …. 14.52 National Parks and Wildlife (Wildlife) Regulations 2001 Sch 3 …. 14.52 Sch 6 …. 14.52 Sch 7 …. 14.52 Native Vegetation Act 1991 …. 13.10, 13.11, 13.12, 13.13, 13.33, 14.51 s 3(1)(l) …. 7.35 s 4 …. 13.10 s 6 …. 13.10 s 8 …. 13.12 s 14 …. 13.12 s 14(3) …. 13.21 s 21 …. 13.12 s 21(6) …. 13.41 s 23 …. 7.47, 7.48, 13.10 s 23B …. 7.46

s 23E …. 13.11 s 23F …. 13.11 s 23H …. 13.11 s 23I …. 13.11 s 24 …. 2.18, 13.10, 13.11 s 25 …. 2.18, 13.10, 13.11 s 25A …. 13.41 s 26 …. 9.22 s 26(3) …. 13.12 s 26(4) …. 13.12 s 27 …. 13.10 s 27(2)–(4) …. 13.12 s 28(3) …. 13.10 s 29 …. 7.36, 13.10 s 29(1)(b) …. 13.10 s 29(4) …. 13.10 s 29(4a) …. 13.41 s 29(11)(d) …. 13.41 s 30 …. 13.10 s 31E(1) …. 13.13 s 31E(9) …. 13.13 s 31F …. 13.13 s 40 …. 13.12 s 57 …. 13.10 Sch 1 …. 13.10 Native Vegetation Conservation Act 1985 …. 2.20 Native Vegetation Management Act 1985 …. 13.10 Native Vegetation Regulations 1991

cl 3 …. 9.22 Native Vegetation Regulations 2003 reg 5 …. 13.10, 13.41 Natural Resources Management Act 2004 …. 7.24, 7.29, 9.66, 14.51, 18.29, 18.61, 18.77, 20.13 Ch 7 …. 11.2 s 8 …. 7.24 s 9 …. 3.51, 7.29, 9.66, 18.77 s 9(1) …. 18.18 s 9(2)(g) …. 9.73, 18.18 s 9(3) …. 3.52 s 9(4) …. 3.52 s 9(6) …. 3.52 s 9(7) …. 3.52 s 21 …. 2.19 s 30(2) …. 9.66 s 54(2) …. 9.66 s 74 …. 9.66 ss 74–76 …. 9.66 s 76 …. 9.66 s 78 …. 9.66 s 79 …. 9.42 s 82 …. 9.66 s 90 …. 9.66 s 122 …. 9.42, 9.66, 18.77 s 147 …. 9.66 s 152 …. 9.21 s 179 …. 14.52 s 182 …. 2.53

s 193 …. 12.76, 18.77, 20.4 s 201 …. 20.13 s 205 …. 7.47, 18.77 s 205(5) …. 7.46 s 205(7) …. 7.46 Offshore Minerals Act 2000 …. 11.67 s 196 …. 2.19 Opal Mining Act 1995 …. 11.67 Pastoral Land Management and Conservation Act 1989 …. 7.29, 13.68 s 3 …. 13.68 s 4 …. 13.68 s 7 …. 7.29, 9.14, 13.68 s 22(1)(b) …. 9.14 s 41 …. 7.35, 13.68 s 57 …. 13.68 Petroleum Act 1940 …. 11.67 Petroleum and Geothermal Energy Act 2000 …. 18.65 s 5 …. 9.6 Petroleum and Geothermal Energy Regulations 2000 Pt 3 …. 18.60 Petroleum and Geothermal Energy Regulations 2013 …. 18.65 Petroleum (Submerged Lands) Act 1982 …. 11.67 Planning Act 1982 s 53 …. 19.17 Protection of Marine Waters (Prevention of Pollution from Ships) Act 1987 …. 15.114 s 8(1) …. 15.126 Radiation Protection and Control Act 1982 …. 15.131 Recreational Greenways Act 2000 …. 9.30

River Murray Act 2003 …. 10.38 s 23 …. 3.51 s 26 …. 3.52 Roxby Downs (Indenture Ratification) Act 1982 …. 10.65, 18.68 Soil Conservation and Land Care Act 1989 s 13 …. 7.48 s 38 …. 20.4 Summary Offences Act 1953 s 53 …. 15.96 Water (Commonwealth Powers) Acts 2008 …. 18.33 Water Efficiency Labelling and Standards Acts 2013 …. 18.38 Water Resources Act 1997 s 6(2)(a) …. 7.25 s 141 …. 7.25 Wilderness Protection Act 1992 s 22 …. 12.51 s 22(6) …. 12.51 s 23 …. 12.51 s 25 …. 12.51 s 33(6) …. 12.51 Zero Waste SA Act 2004 …. 16.2

Tasmania Aboriginal Lands Act 1995 …. 14.69 Animal Welfare Act 1993 s 6 …. 3.51 Constitution Act 1934 …. 5.39 Criminal Code Act 1924 s 13 …. 20.76

s 14 …. 20.76 Crown Lands Act 1986 …. 9.7 Environmental Management and Pollution Control Act 1994 …. 11.4, 11.81, 11.83 s 3 …. 10.45 s 3(1) …. 11.77, 20.69 s 8 …. 7.22 s 9(2) …. 7.19 s 10 …. 3.16 s 16 …. 11.78 s 23A …. 3.50 s 23A(3) …. 3.50 s 23A(4) …. 3.50 s 24 …. 11.77 ss 24–26 …. 10.45 s 24(1) …. 10.45, 11.6 s 25 …. 10.45, 11.78 s 25(1) …. 11.6 s 25A …. 10.45, 11.80 s 26 …. 11.6, 11.78 s 27 …. 10.45 s 27(1) …. 11.6 s 27(2) …. 11.6 s 27(2)–(4) …. 11.77 s 27(7) …. 11.95 s 28(2) …. 16.2 s 28(4)(c) …. 16.2 s 44 …. 20.4 s 48(1) …. 19.20

s 55 …. 20.73 s 55(1) …. 20.86 s 55A …. 20.81 s 57 …. 20.39 s 58 …. 20.57 s 58(1)(b) …. 20.54 s 58(2) …. 20.54 s 60 …. 20.59 s 60(1)(a) …. 20.86 s 74(1) …. 11.77 s 74(3)–(5) …. 11.13 s 74(6) …. 11.80 s 74(7) …. 11.80 s 74A(2) …. 16.25 s 74A(3) …. 16.25 s 74B …. 16.40 ss 74C–74G …. 16.40 ss 74E–74G …. 16.40 s 74G …. 16.40 s 74O …. 16.40, 16.47 s 74O(2) …. 16.47 s 74O(3)–(5) …. 16.47 s 74P …. 16.40 Sch 1 …. 7.24, 10.45 Sch 1 cl 3 …. 16.2 Sch 2 …. 10.45, 11.8, 11.78 Environment Protection Policy (Noise) 2009 cll 6–8 …. 15.24

Pt 4 …. 15.24 Pt 5 …. 15.24 Environmental Management and Pollution Control Act 1994 Pt 3 …. 15.43 Pt 7 Div 1A …. 15.38 s 3 …. 15.25, 15.59, 15.66 s 4 …. 15.33 s 5 …. 15.25, 15.26 s 5(2)(a) …. 15.29 s 5(3) …. 15.28 s 5(5) …. 15.25 s 5A …. 15.28 s 5B …. 15.80 s 20A …. 15.35 s 22 …. 15.61 s 23A …. 15.35 s 23A(3) …. 15.36 ss 24–26 …. 15.59 s 24(1) …. 15.59 s 25 …. 15.59 ss 25–27 …. 15.59 s 25(3) …. 15.66 s 25(6) …. 15.75 ss 27A–27K …. 15.59 s 28 …. 15.74 s 28(1) …. 15.43 s 29 …. 15.54, 15.74 s 30 …. 15.81

s 31 …. 15.86 s 32 …. 15.37 s 33 …. 15.37 s 34 …. 15.101 ss 35–36 …. 15.77 s 36 …. 15.77 s 37 …. 15.43, 15.46 ss 37–42A …. 15.46 s 38 …. 15.33, 15.46 s 39 …. 15.81 s 40 …. 15.48 ss 40–41 …. 15.48 s 41(3) …. 15.88 s 42 …. 15.48 s 42(2) …. 15.112 s 44 …. 15.91, 15.93 s 44(3) …. 15.91 s 44(6) …. 15.88 s 45(3) …. 15.92, 15.111 s 46 …. 15.98 s 46(5)(b) …. 15.98 s 47 …. 15.98 s 50 …. 15.107 s 50(1) …. 15.107 s 50(2) …. 15.107 s 50(3) …. 15.107 s 51 …. 15.107 s 51(1) …. 15.107

s 51(2) …. 15.107 s 51(3) …. 15.107 s 51A …. 15.25 s 53 …. 15.107 s 53(1) …. 15.107 s 53(2) …. 15.24, 15.107 s 53(3) …. 15.24, 15.29 s 53(4) …. 15.107 s 55 …. 15.36 s 59 …. 15.62 s 63 …. 15.99 s 63(1) …. 15.112 s 63(1)(a) …. 15.112 s 63(1)(b) …. 15.112 s 63(1)(c) …. 15.112 s 63(1)(d)(i) …. 15.112 s 63(1)(d)(ii) …. 15.112 s 74 …. 15.66 s 76 …. 15.59 s 77 …. 15.59 s 78 …. 15.111 s 79 …. 15.111 s 80 …. 15.59 ss 86–87 …. 15.63 ss 96A–96O …. 15.38 s 96D(1) …. 15.38 s 199 …. 15.93 Sch 2 …. 15.59

Environmental Management and Pollution Control Act 1994 (Distributed Atmospheric Emissions) Regulations 2007 …. 15.24 Environmental Management and Pollution Control (Environmental Infringement Notices) Regulations 2006 Sch 2 Pt 1 Div 2 …. 15.24 Environmental Management and Pollution Control (Underground Petroleum Storage Systems) Regulations 2010 …. 16.25, 16.33 Environmental Management and Pollution Control (Waste Management) Regulations 2000 reg 10 …. 16.17 reg 12 …. 16.17, 16.18 reg 12A …. 16.18 reg 12B …. 16.18 Fire Service Act 1979 s 29 …. 7.16 s 66(12) …. 7.16 Florentine Valley Paper Industry Act 1935 …. 10.65 Forest Management Act 2013 s 15 …. 8.21, 8.30 Sch 3 …. 12.66 Forest Practices Code …. 2.24 Forestry Act 1920 s 20 …. 12.66 s 22B …. 12.66 Forestry Rights Registration Act 1990 s 5 …. 3.10 Freedom of Information Act 1991 …. 22.24 Gordon River Hydro-electric Power Development Act 1982 …. 5.49 Hellyer Mine Agreement Ratification Act 1987 …. 10.65, 15.78 Historic Cultural Heritage Act 1995

s 57 …. 20.4 s 74 …. 20.8 Huon Valley Pulp and Paper Act 1959 …. 10.65 International Hotel Development Act 1985 …. 10.67 Judicial Review Act 2000 …. 22.19 Pt 5 …. 22.21 s 7 …. 19.20 ss 17–21 …. 22.20 Land Acquisition Act 1993 …. 2.28 Land Use Planning and Approvals Act 1993 …. 10.2, 11.77, 13.42 Pt 3 Div 2A …. 10.45, 11.80 Pt 5 …. 10.47 s 3 …. 10.2 s 4 …. 9.33 s 8 …. 7.24 s 13C …. 9.40 s 20 …. 9.60 s 20(3)–(6) …. 9.53 s 25(4) …. 15.78 s 27(4) …. 15.78 s 38 …. 9.49 s 51 …. 10.45 s 54 …. 9.37 s 60C …. 11.82 s 60C(4)–(7) …. 11.82 s 60C(8) …. 11.82 s 60C(9) …. 11.82 s 60D …. 11.82

s 60D(4) …. 11.82 s 60E …. 11.82 s 60F …. 11.82 s 60G …. 11.82 s 60G(5) …. 11.82 s 60G(6) …. 11.82 s 60H(2) …. 11.82 s 60H(4)(a) …. 11.82 s 60J …. 11.82 s 60K(1) …. 11.83 s 60K(2) …. 11.83 s 60K(3) …. 11.83 s 60K(5) …. 11.83 s 60L …. 11.83 s 60L(8) …. 11.83 s 60L(9) …. 11.83 s 60M …. 11.82 s 60N …. 11.84 s 60N(5) …. 11.84 s 60N(6) …. 11.84 s 60N(7) …. 11.84 s 60N(8) …. 11.84 s 60O …. 11.84 s 60O(5) …. 11.84 s 60P …. 11.84 s 60Q …. 11.84 s 60R …. 11.84 s 60R(4) …. 11.84

s 60R(5) …. 11.84 s 60S …. 11.85 s 60T …. 11.82, 11.85 s 60T(4) …. 11.85 s 60T(6) …. 11.85 s 60U …. 11.85 s 60U(5) …. 11.85 s 60V …. 11.85 s 60W …. 11.85 s 60X …. 11.85 s 60Y …. 11.85 s 61 …. 10.70 s 63(2) …. 15.38 s 64 …. 19.17, 21.4 s 71 …. 9.30 Sch 1 …. 9.60, 11.85 Land Use Planning and Approvals Regulations 2014 …. 10.2 reg 4 …. 9.49 Living Marine Resources Management Act 1995 …. 12.64, 14.55, 15.93 s 104 …. 12.64 s 105 …. 12.64 ss 106–112 …. 12.64 ss 118–124 …. 12.64 Local Government Act 1962 s 733d(3c)(b)(i) …. 19.17 Local Government Act 1993 s 200(1) …. 15.96 s 203 …. 15.96

Major Infrastructure Development Approvals Act 1999 …. 10.53, 10.59, 18.62 s 16 …. 10.59 s 20(5) …. 10.59 Marine Farming Planning Act 1995 …. 11.81 s 21(g)(a) …. 9.41 s 23 …. 11.81 Mineral Resources Development Act 1995 s 75(3)(f) …. 18.59 National Environment Protection Council (Tas) Act 1995 …. 15.3 s 6(1) …. 15.4 s 14(1) …. 15.4 s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6 s 18 …. 15.6 s 19 …. 15.6 s 21 …. 15.6 s 28(1) …. 15.6 National Parks and Reserved Land Regulations 2009 reg 4 …. 12.76 National Parks and Reserves Management Act 2002 …. 12.52 s 16 …. 12.52 s 19 …. 12.67 s 19(6)–(8) …. 12.70 s 19(13) …. 12.70 s 20 …. 12.67 s 23 …. 12.67 s 25 …. 12.52

s 27 …. 12.69, 12.73 ss 33–47 …. 12.52 s 35 …. 12.75 Sch 1 …. 12.69 National Parks and Wildlife Act 1970 s 21 …. 9.18 Sch 4 …. 9.18 National Trust Act 2006 s 19 …. 7.47 Natural Resources Management Act 2002 …. 9.67 Nature Conservation Act 2002 …. 12.52, 12.66, 14.55, 14.69 s 27 …. 14.55 s 29 …. 14.55 s 30 …. 14.55 s 32 …. 14.55 s 34 …. 7.47 s 40 …. 7.47 s 41 …. 2.24 s 41A …. 2.24 s 73 …. 14.69 s 135 …. 14.46 Sch 1 …. 12.52 Northern Pulp Mill Agreement Act 1988 …. 10.65, 15.78 Petroleum (Submerged Lands) (Management of Environment) Regulations 2012 Pt 2 …. 18.60 Planning and Approvals Act 1993 s 64 …. 19.4 Plastic Shopping Bags Ban Act 2013 …. 16.2

s 3 …. 16.12 s 4 …. 16.12 Pollution of Waters by Oil and Noxious Substances Act 1987 …. 15.114 s 8(1) …. 15.126 Public Land (Administration and Forests) Act 1991 …. 9.11 s 14 …. 9.11 Radiation Protection Act 2005 …. 15.131 s 8 …. 15.131 Resource Management and Planning Tribunal Act 1993 …. 2.72 s 14 …. 22.3 s 16(1)(c) …. 19.55 s 16(1)(d) …. 22.39 s 16A …. 22.13 s 16A …. 22.13 s 22(1) …. 19.55 s 28 …. 21.23, 22.10 s 28(1) …. 22.9 Resource Planning and Development Commission Act 1997 …. 9.11 Sea Fisheries Regulations 1962 …. 5.42 Silicon Development Act 1986 …. 10.67 State Coastal Policy Validation Act 2003 s 5 …. 18.58 State Policies and Projects Act 1993 …. 9.41, 10.45, 11.79, 16.10 s 4 …. 9.33 s 5 …. 15.38 s 11 …. 15.40 ss 11–14 …. 15.38 s 12 …. 15.40

s 13 …. 9.41 s 13(1) …. 9.43 s 13C(b) …. 18.58 s 14 …. 15.38 s 16 …. 11.6 ss 16–28 …. 10.59 s 18 …. 11.79 s 18(2) …. 11.6, 11.78 s 18B …. 11.79 s 19(2) …. 11.11 s 20 …. 11.12, 11.79 s 20(1) …. 11.78 s 20(3) …. 11.13, 11.79 s 21(1) …. 11.80 s 22 …. 11.80 s 23 …. 11.80 s 25 …. 11.81 s 26 …. 11.80 s 26A …. 11.80 s 74 …. 11.79 s 74(2) …. 11.79 State Policy on Water Quality Management 1997 …. 15.24 Tasmanian Planning Commission Act 1997 …. 9.11 Tasmanian Regional Forest Agreement …. 6.38, 6.46 s 68 …. 6.38, 18.74, 18.75 Threatened Species Protection Act 1995 ss 13–22 …. 14.79 s 15 …. 14.79

s 16 …. 14.79 s 23 …. 14.79 s 25 …. 9.20, 14.79, 14.90 s 27 …. 9.20, 14.79 s 32 …. 20.4 Schs 3–5 …. 14.79 Water Efficiency Labelling and Standards Acts 2013 …. 18.38 Water Management Act 1999 …. 18.29 s 7 …. 9.6 s 270 …. 19.4 Wildlife (General) Regulations 2010 …. 14.55 cl 24 …. 14.55 cll 35–40 …. 14.55 cl 40 …. 14.55 cl 50–54 …. 14.55 Schs 1–7A …. 14.55 Workplace (Protection from Protesters) Act 2014 …. 2.42 s 6 …. 2.42 s 17 …. 2.42

Victoria Administrative Decisions Act 1978 s 11 …. 19.3 Alcoa (Portland Aluminium Smelter) Act 1980 …. 10.65, 15.78 Alpine Resorts Act 1983 …. 12.53 s 19 …. 12.53 Alpine Resorts (Management) Act 1997 …. 10.68, 12.53 Catchment and Land Protection Act 1994 …. 7.29, 9.69, 13.28, 14.56 Pt 3A …. 14.58

s 3 …. 7.10 s 4 …. 7.29 s 9 …. 9.69 s 12 …. 9.69 s 20 …. 3.51, 7.29, 18.77 s 21 …. 7.22, 7.29 s 22 …. 7.22 ss 23–36 …. 7.35 s 24 …. 7.33, 13.28 s 25 …. 9.69 s 26 …. 9.69 s 30 …. 13.28 s 31 …. 9.69 s 32 …. 9.69 s 33 …. 18.77 ss 33–36 …. 13.28 s 37 …. 3.52, 13.28, 18.77 ss 37–47 …. 20.4 s 38 …. 13.28 s 47A …. 18.77 Charter of Human Rights and Responsibilities Act 2006 …. 2.46 Civil and Administrative Tribunal Act 1998 …. 2.72 s 5 …. 19.24, 19.27 s 51A …. 22.2 s 60 …. 19.56, 19.58 s 83 …. 22.13 s 84 …. 22.13 s 88 …. 22.13

ss 88–93 …. 22.13 s 89 …. 22.13 s 94 …. 22.11 s 109 …. 22.9 s 123 …. 21.4 s 123(5) …. 21.13 s 124 …. 21.4 Sch 3 …. 22.11 Climate Change Act 2010 Pt 4 …. 17.46 s 14 …. 17.55 s 24 …. 17.46 Sch 1 …. 17.55 Coastal Management Act 1995 …. 18.57 Pt 3 …. 18.57 s 3 …. 18.57 s 8 …. 18.57 s 37 …. 18.57 Code of Practice for Timber Production 2007 …. 2.56, 8.45, 8.49, 9.26 Commissioner for Environmental Sustainability Act 2003 …. 8.20 s 3 …. 8.20 s 7 …. 8.20 s 8 …. 8.20 s 18 …. 8.20 Conservation, Forests and Lands Act 1987 …. 8.45, 8.49, 9.25, 12.54, 14.74 Pt 2 …. 12.53 Pt 5 …. 18.76 s 32 …. 9.25

ss 68–82 …. 12.54 s 69 …. 7.48, 10.49, 13.56, 18.77 s 70 …. 7.48 s 97 …. 12.76 s 98 …. 12.76 Conservation Trust Act 1973 s 3A …. 7.47 Constitution Act 1975 …. 5.39 Crown Land (Reserves) Act 1978 …. 9.33 Eastlink Project Act 2004 …. 10.65 Environment Effects Act 1978 …. 9.56, 11.4, 11.58 s 2 …. 11.58 s 3 …. 11.6, 11.8 s 4 …. 11.58 s 4(1) …. 11.6, 11.11 s 6 …. 11.58 s 6(2) …. 11.11 s 8 …. 10.28 s 8(2) …. 11.6, 11.11, 11.58 s 8(4) …. 11.6 s 9(1) …. 11.12 s 60(1)(e) …. 10.28 s 60(1)(f) …. 10.28 s 60(1A) …. 10.28 s 60(1B) …. 10.28 Environment Protection Act 1970 …. 7.48, 11.58, 15.17, 15.22, 15.113, 16.10, 19.22, 19.27, 20.19, 20.26, 20.33, 21.4, 21.5 Pt III Div 1A …. 15.43 Pt III Div 1B …. 15.43

Pt III Div 4A …. 15.43 Pt IX …. 16.2 Pt IX Div 1A …. 7.48, 15.43, 15.50 Pt IX Div 2AA …. 15.43 Pt IX Div 2AD …. 15.43 Pt IX Div 2B …. 15.43 Pt IX Div 3 …. 5.23 Pt IX Div 4 …. 15.43 s 1B …. 8.20 ss 1B–1L …. 7.33 s 1G …. 16.5 s 1H …. 16.5 s 1I …. 16.1 s 4 …. 15.22, 15.26, 15.59, 20.6 s 4(1) …. 15.43, 15.83, 20.69 ss 16–19 …. 15.38 s 16(1) …. 15.38 s 16A …. 16.4 ss 16A–19 …. 16.1 s 17A(1) …. 15.15 s 17A(2) …. 15.38 s 18(1) …. 15.38 s 18A(2) …. 15.40 s 18AF …. 15.49 s 18B …. 15.40 s 18C …. 15.40 s 18D(5) …. 15.40 s 18E …. 16.4

s 19 …. 15.40 s 19AA …. 15.72 s 19AB …. 15.72 s 19AD …. 15.49 ss 19AD–19AK …. 15.49, 15.83 s 19AF …. 15.80, 15.83 s 19AG …. 15.49 s 19AI(4) …. 15.49 s 19A …. 15.59 ss 19A–19D …. 15.61 ss 19A–19G …. 15.57 s 19B …. 15.61, 15.66 s 19B(4)–(4C) …. 15.61 s 19C …. 15.62, 15.63 s 19CA …. 15.79 ss 19D–19G …. 15.57 s 20 …. 15.59, 15.61, 15.63, 16.15 s 20(6)(a) …. 15.76 s 20(8)(ca)–(h) …. 15.61 s 20(9)(a)(i) …. 15.79 s 20(9)(a)(ii) …. 15.79 s 20A …. 15.61, 15.63, 15.66 s 20B …. 15.61 s 20C …. 15.38, 15.39, 15.66, 22.63 s 20C(3) …. 15.68 s 20C(4)–(5) …. 15.68 s 21 …. 15.75, 15.77 s 21(f) …. 15.76

s 23 …. 15.61 s 23A …. 15.79 s 24A …. 16.6 s 25 …. 15.64 s 26 …. 15.62, 15.76 s 26A …. 15.41 ss 26A–26E …. 15.57, 15.74 s 26B …. 15.41, 22.63 s 27(1) …. 15.111 s 27(1A) …. 15.111 s 27(2) …. 15.111 s 28 …. 15.93, 15.94 s 28B …. 15.93, 15.94, 20.4 s 28B(5) …. 15.111 s 30A …. 15.101 s 30B …. 20.81 s 30D(3) …. 15.111 s 31 …. 15.93, 15.94, 20.4 s 31A …. 15.77, 15.93, 20.4 s 31A(7) …. 15.111 s 31A(8) …. 15.111 s 31B …. 15.93, 20.4 s 31B(6) …. 15.111 s 31C …. 15.45, 15.46, 15.81, 15.83, 16.4 s 31C(1) …. 16.4 ss 32–37A …. 15.88 s 32(5) …. 19.22 s 32(5)(b) …. 19.22

s 33B …. 15.88 s 33B(1) …. 19.24, 19.25 s 35(2) …. 7.19 s 38 …. 15.38 s 39(1) …. 15.20, 15.22, 15.110, 20.40 s 40 …. 15.38 s 41(1) …. 15.20, 15.22 s 44 …. 15.38 s 45(1) …. 15.20, 15.22 ss 45A–45ZL …. 16.18 s 46 …. 15.24, 15.38 s 47 …. 15.93 s 47A …. 15.93 ss 48–48D …. 15.24 s 48A …. 15.93 s 48AB …. 15.93 s 48B …. 15.93 s 48C …. 15.93 s 49A …. 16.4 s 49AA …. 16.4 s 49AC …. 16.4 s 49AD …. 15.50, 16.4 s 49AE …. 16.4 s 49AF …. 16.4 s 49AG …. 16.4 s 49AH …. 15.50, 16.4 s 49AK …. 16.4 s 49AN …. 16.4

s 49AO …. 16.4 s 49AP …. 16.4 ss 49L–49S …. 15.38, 16.1 s 49R …. 15.43 ss 50–50CA …. 16.4 ss 50B–50BI …. 16.1 s 50BH …. 16.4 s 50BI …. 15.43 ss 50R–50RE …. 15.38, 16.1 s 50RE …. 15.43 ss 50S–50XC …. 16.6 ss 50SA–50SAB …. 16.4 s 51(a) …. 15.55 ss 51A–51G …. 15.45 s 51F …. 15.45 s 53 …. 15.75 ss 53–53G …. 16.18 ss 53A–53E …. 15.59 s 53B …. 15.77, 16.18 s 53C …. 16.18 s 53D …. 15.61, 16.18 s 53F …. 16.18 s 53G …. 15.62 s 53I …. 15.59 ss 53R–53ZE …. 15.81 s 53V …. 15.26 s 54 …. 15.75 s 54B …. 15.75

s 55 …. 20.28 s 55A …. 15.93 s 57 …. 15.87 s 57A …. 16.31 s 57AA …. 15.83 s 57AA(3) …. 15.83 s 57AA(4) …. 15.83 s 57AA(6) …. 15.83 s 59 …. 20.25 s 59AB …. 20.30 s 59E …. 20.26 s 60A …. 15.95 s 62 …. 20.7 s 62A …. 16.43, 20.6, 20.7 s 62A(3) …. 15.111 s 62B …. 20.7 s 62C …. 20.30 s 63 …. 20.54 s 63B …. 20.9 s 64 …. 15.99 s 64A …. 15.113, 21.4, 21.5 s 65(1) …. 3.16 s 65A(2) …. 15.112 s 65A(4) …. 15.112 s 66 …. 20.7 s 66B …. 20.59 s 66B(1A)(b) …. 20.86 s 66B(1A)(c) …. 20.86

s 66B(4) …. 20.59 s 66C …. 20.30 s 67AC …. 20.116 s 67AC(1) …. 15.112 s 67AC(2) …. 15.112 s 67AC(2)(a) …. 15.112 s 67AC(2)(b) …. 15.112 s 67AC(2)(c) …. 15.112 s 67AC(2)(d) …. 15.81 s 67B(1) …. 15.77 s 67C(2) …. 15.77 s 67D …. 15.99, 20.19 s 67D(4) …. 15.100, 20.20 s 67D(6) …. 15.100 s 67E …. 15.100, 20.19 s 67G …. 15.99 s 69D …. 20.29 s 70 …. 15.81 s 71(2B) …. 15.78 s 72 …. 15.41 s 107B …. 15.88 Sch 2 …. 16.6 Environment Protection (Distribution of Landfill Levy) Regulations 2002 …. 16.6 Environment Protection (Industrial Waste Resource) Regulations 2009 …. 16.15 Pt 2 …. 16.15 Pt 3 …. 16.18 Pt 4 …. 16.18

Pt 5 …. 16.15 reg 5(1) …. 16.16 regs 7–9 …. 16.1 reg 10 …. 16.15 reg 11 …. 16.15 reg 15 …. 16.18 Sch 1 …. 16.15 Sch 2 …. 16.15 Environment Protection (Residential Noise) Regulations 2008 …. 15.24 Environment Protection (Scheduled Premises and Exemptions) Regulations 2007 …. 15.57, 15.59 Environment Protection (Ships’ Ballast Water) Regulations 2006 …. 15.24, 16.18 Fisheries Act 1995 …. 12.65, 14.75, 18.48 Pt 10 …. 2.19, 2.26 s 3 …. 18.9 s 10 …. 3.8 s 28 …. 7.33 s 28(5) …. 12.65 s 42 …. 7.33 s 56 …. 18.47 s 64 …. 18.49 s 68 …. 15.93 ss 69–73 …. 18.9 ss 69–89 …. 7.33 s 88 …. 12.65, 18.9 s 88(2) …. 12.65 s 89 …. 12.65, 18.5, 18.9 s 153B …. 18.48

Flora and Fauna Guarantee Act 1988 …. 2.56, 9.26, 14.56, 14.57, 14.73, 14.91 s 3 …. 14.74 s 4 …. 14.74 s 4(1)(f) …. 14.74 s 4(1)(g) …. 14.74 s 4(2) …. 14.74 s 5 …. 14.74 s 10 …. 14.75 s 11(1) …. 14.75 s 11(3) …. 14.75 s 12 …. 14.75 s 17 …. 14.76 s 19 …. 14.76 s 20 …. 14.76 ss 21–23 …. 14.76 s 26 …. 14.77, 20.4 s 32 …. 14.77 s 35 …. 14.77 s 36 …. 14.77 s 39 …. 14.77 s 40 …. 14.77 ss 41–41B …. 14.77 s 43 …. 14.77 s 44 …. 14.77 s 45 …. 14.57 s 46 …. 14.57 s 47 …. 14.57 s 47(2) …. 14.57

s 48(4) …. 14.57 s 48(5) …. 14.57 s 49 …. 14.57 s 51 …. 14.57 s 52 …. 14.75 s 53 …. 14.75 s 61 …. 14.78 s 62 …. 14.78 Sch 1 …. 14.74, 14.75 Sch 2 …. 14.75 Flora and Fauna Guarantee Regulations 2001 Sch 1 …. 14.75 Sch 2 …. 14.75 Forests Act 1958 s 22 …. 18.76 s 42(6) …. 12.66 s 50 …. 7.52, 12.66 ss 58–60 …. 12.66 Forests (Laminex Industries Agreement) Act 1989 …. 10.65 Forests (SEAS Sapfor Ltd Agreement) Act 1993 …. 10.65 Forests (Victree Forests Agreement) Act 1989 …. 10.65 Freedom of Information Act 1982 …. 22.24 Health Act 1958 Pt III …. 3.54 Heritage Act 1995 …. 10.49 Pt 4 Div 2 …. 7.47 s 85 …. 10.49 s 86 …. 7.47, 10.49

s 161 …. 20.4 Heritage Rivers Act 1992 …. 12.53, 12.72, 13.29 s 10 …. 12.72, 13.28 ss 10–13 …. 13.28 s 12 …. 12.72, 13.28 s 15 …. 12.72 s 16 …. 12.72 Sch 1 …. 12.53 Sch 2 …. 12.53 Schs 3–5 …. 13.29 Interpretation of Legislation Act 1984 s 35 …. 7.15, 7.21 s 35(a) …. 2.65 s 35(b) …. 4.44 Land Acquisition and Compensation Act 1986 …. 2.28 Land Act 1958 …. 9.7 Land Conservation Council Act 1970 s 5(1)(a) …. 9.10 Local Government Act 1989 ss 181A–181E …. 10.49 Major Transport Projects Facilitation Act 2009 …. 11.4 Mineral Resources (Sustainable Development) Act 1990 Pt 7 …. 18.59 s 2A …. 18.59 s 6 …. 18.62 s 6(3) …. 18.62 s 7 …. 18.62 s 9 …. 9.6

s 26 …. 18.59 s 41A …. 18.59 s 78 …. 9.14 s 79 …. 18.59 Sch 3 …. 18.62 Mineral Resources (Sustainable Development) (Extractive Industries) Regulations 2010 cl 17 …. 5.41 cl 18 …. 5.41 Sch 3 …. 5.41 National Environment Protection Council (Vic) Act 1995 …. 15.3 s 6(1) …. 15.4 s 14(1) …. 15.4 s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6 s 18 …. 15.6 s 19 …. 15.6 s 21 …. 15.6 s 28(1) …. 15.6 National Parks Act 1975 …. 12.53, 12.65 Pt III …. 12.53 s 17 …. 12.53, 12.67 ss 17–25 …. 12.69, 12.73 s 17A …. 12.53 s 18 …. 12.53, 12.67 s 21B …. 12.53 s 25A …. 12.75 s 26A …. 12.75

s 28 …. 12.72 Sch 2 …. 12.53 Sch 2A …. 12.53 Sch 2B …. 12.53 Sch 3 …. 12.53 Sch 5 …. 12.53 Sch 6 …. 12.53 National Parks (Marine National Parks and Marine Sanctuaries) Act 2002 …. 18.48 National Parks Regulations 2013 …. 12.53 Nuclear Activities (Prohibitions) Act 1983 …. 15.131, 18.68 Parks Victoria Act 1998 …. 12.53 s 16A …. 12.53 Petroleum Act 1998 s 137 …. 18.62 Petroleum Regulations 2011 regs 8–12 …. 18.60 Pipelines Regulations 2007 Pt 7 …. 18.60 Planning and Environment Act 1987 …. 2.65, 8.38, 10.2, 10.28, 10.30, 10.31, 10.56, 10.70, 11.58, 17.57, 19.42 Pt 1A …. 9.39 Pt 3 Div 2 …. 9.49 Pt 3A …. 9.44 Pt 3C …. 9.44 Pt 3D …. 9.44 Pt 4 Div 1 …. 10.9 Pt 4AA …. 11.99 Pt 8 …. 10.56

s 3 …. 10.2 s 4 …. 9.1, 9.39 s 4(1)(a) …. 9.1 s 4A …. 9.44 s 6 …. 9.55 s 6(1)(a) …. 9.1 s 6(4) …. 9.53 s 7(4) …. 9.43 s 8 …. 9.49, 10.30 s 8A …. 9.49, 10.30 s 9 …. 9.49, 10.30 s 12(2)(a) …. 16.25 s 12(2)(b) …. 9.56 s 12B …. 9.2 s 13 …. 10.29 s 16 …. 9.33 s 46 …. 9.33 s 47 …. 10.2 s 51 …. 10.9 s 52(1)(a) …. 10.29, 19.23 s 52(1)(d) …. 10.29 s 52(1A) …. 10.29 s 52(2A) …. 10.29 s 52(2B) …. 10.29 s 52(3) …. 10.29 s 52(4) …. 10.29 s 55 …. 10.6 s 56 …. 10.6

s 57 …. 10.9 s 57(1) …. 10.30, 19.26 s 57(2) …. 10.30 s 59 …. 9.49 s 60(1) …. 9.39, 10.31 s 60(1)(d) …. 10.6 s 60(1)(e) …. 10.10, 10.11 s 61(3) …. 10.6 s 62(6) …. 10.49 s 77 …. 19.4 ss 77–81 …. 10.70 s 80 …. 19.4 s 81 …. 19.4 s 82 …. 10.70, 19.23, 19.42, 19.58 s 82AA …. 10.70 s 82B …. 10.70, 19.23 s 83(2) …. 19.58 s 83A …. 19.58 s 83A(2) …. 19.58 s 84B …. 10.70 s 84B(1)(h) …. 10.49 s 89 …. 19.23 s 95 …. 9.33 s 96B(1)(a) …. 10.30 s 96C …. 10.30 s 96C(1)(c) …. 10.30 s 97B …. 10.56 s 97B(1) …. 10.31

s 97E(1)–(3) …. 10.31 s 97E(5) …. 10.31 s 97F(1) …. 10.31 s 97M …. 10.31 s 114 …. 19.40, 20.12 s 117 …. 19.23 s 119 …. 20.12 s 125 …. 19.40 s 126 …. 10.2, 13.27 s 173 …. 10.47, 10.49 s 174 …. 9.30, 10.47 s 175 …. 10.49 s 180 …. 10.49 s 184(1) …. 10.49 s 201F …. 10.56 ss 201G–201Q …. 10.56 Planning and Environment Regulations 2015 …. 10.2 reg 41(1)(k) …. 10.30 reg 42 …. 10.30 Pollution of Waters by Oil and Noxious Substances Act 1986 …. 15.114 s 8(1) …. 15.126 Pollution of Waters by Oil and Noxious Substances Regulations 2012 …. 15.114 Protection Act 1970 s 34 …. 20.4 s 35 …. 20.4 Public Health and Wellbeing Act 2008 Pt 6 Div 1 …. 15.96 s 58(3) …. 15.96

s 58(4) …. 15.96 s 62(3)–(4) …. 15.96 Radiation Act 2005 …. 15.131 Road Management Act 2004 Sch 3 cl 10 …. 7.19 Sentencing Act 1991 s 5(4) …. 20.98 s 7 …. 20.93 s 76 …. 20.93 s 109 …. 20.26 s 112(2) …. 20.26 State Environment Protection Policy (Prevention and Management of Contamination of Land) 2002 …. 16.29, 16.30, 16.31 cl 14 …. 16.31 cl 14(2) …. 16.31 cl 14(3) …. 16.31 cl 32 …. 16.25, 16.28, 16.31 s 6 …. 16.28 s 7 …. 16.28 s 8 …. 16.28 s 9 …. 16.28 s 10 …. 16.28 s 12 …. 16.28 s 14 …. 16.28 s 14(b) …. 16.28 s 15 …. 16.28 s 16 …. 16.28 s 17 …. 16.28 s 18 …. 16.28

s 19 …. 16.28 State Environment Protection Policy (Groundwaters of Victoria) 1997 …. 15.24 State Environment Protection Policy (Waters of Victoria) 1988 …. 15.24 State Environment Protection Policy (Waters of Victoria) 2003 …. 15.38 State Environmental (Cockburn Sound) Policy 2005 …. 15.24 Sustainability Victoria Act 2005 s 4 …. 8.20 s 6 …. 7.22 Sustainable Forests (Timber) Act 2004 …. 9.21, 20.19 Pt 8A …. 20.19 s 1 …. 9.1 s 5 …. 8.20, 9.1 s 5(4)(b) …. 8.56 s 6 …. 18.76 s 27 …. 2.19 s 40 …. 18.76 s 44 …. 18.76 s 46 …. 18.76 Traditional Owner Settlement Act 2010 …. 14.70 s 80 …. 14.70 ss 82–90 …. 14.70 Transport Integration Act 2010 …. 17.59 s 10 …. 17.59 s 19 …. 8.56 Victorian Environmental Assessment Council Act 2001 s 6 …. 9.10 Waste Management Policy (Ships’ Ballast Water) 2004 …. 15.24 Waste Management Policy (Siting, Design and Management of Landfills)

2004 …. 16.1 Waste Management Policy (Solid Fuel Heating) 2004 …. 16.1 Waste Management Policy (Used Packaging Materials) 2010 …. 16.1, 16.10 Water Act 1989 …. 9.69, 17.57, 18.29 s 7 …. 9.6 s 8 …. 3.14 s 8(7) …. 3.14 s 15(1)(c) …. 3.54, 21.21 s 32A(11) …. 9.69 s 40 …. 7.33 s 157 …. 3.46 s 213 …. 7.31 Water (Commonwealth Powers) Acts 2008 …. 18.33 Water Efficiency Labelling and Standards Acts 2005 …. 18.38 Wildlife Act 1975 …. 12.53, 12.54, 14.56 s 3 …. 14.56 s 7A …. 14.56 s 12 …. 12.54 s 14 …. 7.52, 12.54 s 15(2) …. 12.54 s 20 …. 14.56 ss 22–28K …. 14.56 ss 25A–25F …. 14.56 s 28A(1)(e) …. 14.70 s 28G(2)(c) …. 14.70 ss 32–34 …. 12.54 s 33 …. 12.54 s 35 …. 14.56

s 43 …. 14.56 s 44 …. 14.56 s 47 …. 14.56 s 47A …. 14.56 s 50 …. 14.7, 14.56 s 58 …. 14.56 s 73 …. 12.54 s 86 …. 14.56 s 86A …. 14.56 Wildlife (Game) Regulations 2012 …. 14.56 Wildlife Regulations 2013 …. 14.56 Wildlife (Sate Game Reserves) Regulations 2014 …. 14.56 Wrongs Act 1958 s 51 …. 3.36

Western Australia Aboriginal Affairs Planning Authority Act 1972 s 4 …. 14.71 Acts Amendment (Game Birds Protection) Act 1992 …. 14.59 Agriculture and Related Resources Protection Act 1976 …. 14.60, 14.61 s 6 …. 14.61 s 6(6) …. 14.61 Alumina Refinery (Worsley) Agreement Amendment Act 1978 …. 10.66, 15.78 Broken Hill Proprietary Steel Industry Agreement Act 1952 …. 10.66 Carbon Rights Act 2003 s 6 …. 3.10 Civil Liability Act 2002 …. 3.37 s 5W …. 3.37

Conservation and Land Management Act 1984 …. 12.55, 12.66 Pt 2 Div 3 …. 12.66 s 4 …. 12.75 s 6 …. 12.55 s 7 …. 12.55 s 13A …. 12.66 s 13C …. 12.66 s 13D …. 12.66 s 16 …. 7.48 ss 26A–26H …. 12.66 s 45 …. 12.55 s 53 …. 7.35, 12.67 s 54 …. 12.66, 12.67 ss 54–56 …. 9.17 s 55 …. 7.35, 12.66 s 56 …. 9.17, 12.67 s 57 …. 12.67 s 58 …. 12.67 s 62 …. 12.55 s 62(1)(da) …. 12.66 s 62(2) …. 12.55 s 62A …. 12.66 s 101C …. 12.76 Constitution Act 1889 …. 5.39 Contaminated Sites Act 2003 s 3(2) …. 16.33, 16.42 s 4 …. 16.25 s 11 …. 16.41

ss 13–18 …. 16.41 ss 19–21 …. 16.26 s 23 …. 16.41 ss 24–27 …. 16.41 s 27(2a) …. 16.41 s 27(2b) …. 16.41 s 27(3) …. 16.41 s 28 …. 16.41 s 29 …. 16.41 s 31 …. 16.41 s 32 …. 16.41 s 33 …. 16.41 s 34 …. 16.41 ss 36–39 …. 16.41 s 40 …. 16.41, 16.47 ss 41–52 …. 16.42 s 44 …. 16.42 s 49 …. 16.42 s 50 …. 16.41 s 51 …. 16.42 s 55(6) …. 16.47 s 58(6) …. 16.33 s 59 …. 16.33 s 62 …. 16.36 s 63 …. 16.36 s 64 …. 16.41 s 65 …. 16.41 s 67 …. 16.47

ss 69–72 …. 16.44 s 73 …. 16.42, 16.45 s 77(1) …. 16.47 Sch 1 …. 16.41 Contaminated Sites Regulations 2006 Pt 9 …. 16.44 reg 5 …. 16.25 regs 7–12 …. 16.26 reg 26 …. 16.41 reg 28 …. 16.41 reg 31 …. 16.42 reg 32 …. 16.42 Sch 3 …. 16.44 Criminal Code Act Compilation Act 1913 s 23 …. 20.76 s 24 …. 20.76 Environmental Protection Act 1986 …. 3.37, 7.33, 10.42, 10.66, 11.4, 13.30, 13.39, 15.21, 15.70, 16.10 cl 12 …. 10.66 Pt III …. 15.38 Pt IV …. 11.68 Pt V …. 20.49, 20.76 Pt VA …. 15.43 Pt VIIA …. 16.6 s 3 …. 7.14, 10.42, 16.42 s 3(1) …. 11.70, 15.25, 15.108, 16.33 s 3(3) …. 15.24 s 3A …. 15.21, 15.26 s 3A(2)(a) …. 15.26

s 4 …. 11.70 s 4A(1) …. 8.56 s 5 …. 7.19 s 6 …. 15.78 s 16(e) …. 9.1 s 26 …. 15.38, 15.40 s 27 …. 15.40 s 33 …. 11.72, 15.38 s 34 …. 15.40 s 36 …. 15.40 s 37 …. 15.38 s 37A …. 15.15 s 37B(2) …. 11.68 s 38 …. 10.42, 11.8, 11.69 s 38(1) …. 10.42, 11.6 s 38(2) …. 10.42, 11.6 s 38(4) …. 11.71 s 38(5) …. 11.6, 11.71 s 38(5a) …. 11.6 s 38(5c) …. 11.6 s 38(5e) …. 11.6 s 38A …. 11.6, 11.71 s 39 …. 11.6 s 39A(1)(b) …. 11.73 s 39A(2) …. 11.71 s 39B …. 11.2 s 39B(1) …. 11.72 s 39B(4) …. 11.72

s 40(2)(c) …. 11.12, 11.76 s 40(4) …. 11.75 s 40(6)(b) …. 11.75 s 40B …. 11.71 s 41 …. 11.69, 11.71 s 41(2)(d) …. 11.11 s 41A …. 11.71 s 43A …. 11.71 s 44 …. 11.14, 11.75 s 44(3) …. 11.72 s 45 …. 11.72 ss 45–45B …. 11.75 s 45(5) …. 11.70 s 45C …. 11.76 s 46 …. 11.93, 11.94 s 48 …. 11.94, 15.111 s 48C(1)(a) …. 9.59 s 48I …. 10.42 s 48I(2) …. 10.42 s 48I(3)(c) …. 10.42 s 49 …. 20.48 s 49(2) …. 15.24 s 50 …. 16.15 ss 50A–50D …. 15.26 s 50A(1) …. 15.108 s 50A(2) …. 15.108 s 50B(1) …. 15.108 s 50B(2) …. 15.108

s 50C …. 15.108 s 51(a) …. 15.55 s 51(b) …. 15.35 ss 51A–51T …. 13.30 s 51B …. 13.30 s 51C …. 13.30 s 51D …. 13.30 s 51E(1) …. 11.69 s 51E(5) …. 11.69 s 51F …. 11.69 s 51O(2) …. 13.30 s 51O(3) …. 13.30 s 51Q …. 13.30 s 51S …. 13.30, 20.12 s 51S(5) …. 13.30 s 51S(6) …. 13.30 ss 52–55 …. 15.57 s 53 …. 15.111 s 54(2)(b) …. 15.61 s 54(3) …. 15.66 s 54(4) …. 15.66 s 56 …. 15.59 s 57(2)(a) …. 15.68 s 57(2)(b) …. 15.61 s 57(3) …. 15.66 s 57(3)(b) …. 15.68 s 57(4) …. 15.66 s 58 …. 15.111

s 59 …. 15.63 s 59(1)(a)(i) …. 15.79 s 59A …. 15.79 s 60 …. 15.39 s 60(1) …. 15.66 s 60(2) …. 15.68 s 60(3) …. 15.68 s 61(2) …. 15.64 s 62 …. 15.75 s 62A …. 15.43 s 62A(1)(o) …. 20.69 s 62A(1)(p) …. 20.69 s 62A(1)(q) …. 16.2 s 63 …. 15.62 s 64 …. 15.64 s 65 …. 15.91, 15.93, 20.4 ss 65–68 …. 15.97 s 65(1) …. 15.93 s 65(1a) …. 15.43 s 65(2) …. 20.6 s 68A …. 15.91, 20.4 s 69 …. 15.93, 15.97, 20.4, 21.4 s 70 …. 15.61, 20.4 s 71 …. 15.93, 15.97 s 71(5) …. 15.112 s 72 …. 15.37 s 73 …. 15.92, 15.93 s 73A …. 15.91, 20.4

s 74 …. 20.81 ss 74–74B …. 15.108 ss 74–75 …. 15.101 s 74(1) …. 20.81 s 74(1)(a) …. 20.85 s 74A …. 20.81 s 74B …. 20.81 s 75 …. 20.81 s 75(1) …. 15.101 s 79 …. 15.24 s 81 …. 15.93 ss 86A–86G …. 15.77 s 86C …. 15.77 s 86G …. 15.77 s 99Q …. 15.108 s 99T …. 15.112 s 99U …. 15.112 s 99X(1) …. 15.112 s 99X(5) …. 15.112 s 99X(6) …. 15.112 s 99Y(1)(a) …. 15.112 s 99Z …. 15.113 s 99ZA …. 15.112 s 99ZA(1)(a) …. 15.112 s 99ZA(1)(b) …. 15.112 s 99ZA(1)(c) …. 15.112 s 99ZA(4) …. 15.112 s 100(1) …. 11.95

s 100(2) …. 11.95 s 101 …. 11.95 ss 102–104 …. 15.88 s 102(3) …. 15.88 s 102(4) …. 15.89 s 103(1)(a) …. 20.4 s 103(2) …. 15.88 s 103(3) …. 15.89 s 104(2) …. 15.89 s 114(1) …. 20.25 s 115 …. 20.30 s 118 …. 20.60 s 118(1) …. 20.59 s 118(1)(b)(i) …. 20.86 s 122A …. 15.41 s 481 …. 11.6 Sch 1 …. 15.108 Sch 2 …. 15.59 Sch 5 …. 13.30 Sch 6 …. 13.30 Environmental Protection (Clearing of Native Vegetation) Regulations 2004 reg 5 …. 13.30 Environmental Protection (Controlled Waste) Regulations 2004 reg 2 …. 16.15 Environmental Protection (NEPM-UPM) Regulations 2013 …. 16.10 Environmental Protection (Noise) Regulations 1997 regs 5–7 …. 15.24 reg 9 …. 15.24

regs 11–16 …. 15.24 reg 18 …. 15.24 Environmental Protection Regulations 1987 reg 2C …. 11.6, 11.68, 11.71 reg 23(1)(b) …. 16.3 Environmental Protection Regulations 2007 reg 4 Sch 1 …. 15.57 Fish Resources Management Act 1994 …. 2.59 s 68 …. 18.47 s 140 …. 18.47 Fisheries Act 1905 s 26A …. 15.93 Fisheries Adjustment Schemes Act 1987 s 14G …. 2.19 Fishing and Related Industries Compensation (Marine Reserves) Act 1997 …. 2.26, 18.48 Freedom of Information Act 1992 …. 22.24 Heritage of Western Australia Act 1990 …. 10.42, 10.43 s 3 …. 10.43 s 4(3) …. 10.43 s 5 …. 10.43 s 29 …. 7.47 s 46 …. 10.43 s 47 …. 10.43 s 51 …. 10.43 s 59 …. 20.4 s 78 …. 10.43 Iron Ore Beneficiation (BHP) Act 1996 cl 9 …. 10.66

Iron Ore (FMG Chichester Pty Ltd) Agreement Act 2006 …. 10.65 Iron Ore (Hope Downs) Agreement Act 1992 cl 39 …. 10.66 Iron Ore (Marillana Creek) Agreement Act 1991 …. 10.65, 15.78 Iron Ore (Yandicoogina) Agreement Act 1996 cl 13 …. 10.66 Land Administration Act 1997 …. 9.7 Pt 4 …. 12.55 s 42 …. 12.55 Mineral Sands (Allied Eneabba) Agreement Amendment Act 1988 …. 10.66 Mineral Sands (Cooljarloo) Mining and Processing Act 1988 …. 10.66 cl …. 10.66 Mining Act 1978 …. 13.39 s 26 …. 18.62 s 63AA …. 18.59 s 70O …. 18.60 s 74(1)(ca)(i) …. 18.60 s 82(1)(ga) …. 18.60 s 82A(2)(a) …. 18.60 s 84AA …. 18.60 Mining Act 1978 ss 23–24A …. 18.62 Mining Rehabilitation Fund Act 2012 …. 18.60 s 11 …. 18.60 National Environment Protection Council (WA) Act 1996 …. 15.3 s 1J …. 15.18 s 6(1) …. 15.4 s 14(1) …. 15.4

s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6 s 18 …. 15.6 s 19 …. 15.6 s 19AA …. 15.18 s 19AB …. 15.18 s 21 …. 15.6 s 28(1) …. 15.6 National Trust of Australia Act 1964 s 21A …. 7.47 Natural Gas (Canning Basin Joint Venture) Agreement Act 2013 …. 10.65 Nickel Refinery (BHP Billiton Nickel West Pty Ltd) (Termination of Agreements) Agreement Act 2008 …. 10.65 North-West Gas Development (Woodside) Act 1979 …. 10.65 Petroleum and Geothermal Energy Resources (Environment) Regulations 2012 …. 18.65 Pt 2 …. 18.60 Pt 4 …. 18.60 reg 9 …. 18.65 reg 15(9) …. 18.65 Petroleum Pipelines Act 1969 s 10 …. 18.59 Petroleum Pipelines (Environment) Regulations 2012 Pt 2 …. 18.60 Pt 4 …. 18.60 Petroleum (Submerged Lands) (Environment) Regulations 2012 Pt 2 …. 18.60 Pt 4 …. 18.60

Planning and Development Act 2005 …. 9.35, 9.59, 10.2, 13.39, 18.58, 19.28, 19.54 s 4 …. 10.2 s 4(1) …. 10.42 s 4(3) …. 9.43 s 5 …. 9.35 s 6 …. 9.35 s 25 …. 9.59 s 27(b) …. 9.59 s 32 …. 9.59 s 39 …. 9.59 s 48D …. 9.59 s 48F …. 9.59 s 48J …. 9.59 s 69 …. 10.44 s 77 …. 18.58 s 82 …. 9.59 s 84 …. 9.49 s 116 …. 18.58 s 119 …. 10.44 s 121 …. 10.44 s 124(1) …. 9.59 s 133 …. 9.35 s 135 …. 16.33 s 138AA …. 11.6 s 138AB …. 11.6 s 162 …. 9.40, 10.2, 10.42 s 163 …. 10.42, 10.43 s 195 …. 10.44

s 216 …. 19.20, 20.12 s 217 …. 20.4 s 222 …. 10.43 s 236 …. 10.70 s 242 …. 10.70, 19.20, 19.28, 19.54 s 243 …. 19.56 s 246 …. 10.70, 10.71 s 254 …. 10.70 s 256(1) …. 10.44 Sch 1 …. 18.58 Sch 7 cl 4(2) …. 10.44 Planning and Development (Development Assessment Panels) Regulations 2011 …. 10.42 Planning and Development Regulations 2009 …. 10.2 Pollution of Waters by Oil and Noxious Substances Act 1987 …. 15.114 s 8(1) …. 15.126 Public Works Act 1902 …. 9.35 s 4 …. 9.35 Radiation Safety Act 1975 …. 15.131 Rights in Water and Irrigation Act 1914 …. 18.29 Soil and Land Conservation Act 1945 …. 13.30 Pt IVA …. 18.77 s 22 …. 18.77 s 26 …. 18.77 ss 30A–30F …. 13.30 s 32 …. 13.30, 18.77, 20.4 State Administrative Tribunal Act 2004 …. 2.72, 19.28 s 37 …. 19.54 s 37(1) …. 19.54

s 38 …. 19.56 s 64 …. 22.11 s 87 …. 22.9 s 87(1) …. 22.9 s 90 …. 21.4 s 91 …. 21.4 Swan and Canning Rivers Management Act 2006 …. 9.46 Town Planning and Development Act 1928 …. 9.59 cl 11 …. 9.59 cl 11A …. 9.59 Sch 1 …. 9.59 Waste Avoidance and Resource Recovery Act 2007 …. 16.2 ss 45–47 …. 16.5, 16.7 Waste Avoidance and Resource Recovery Levy Regulations 2008 reg 5(1)(b) …. 16.2 Water Efficiency Labelling and Standards Acts 2006 …. 18.38 Western Mining Corporation Limited (Throssell Range) Agreement Act 1985 cl 37 …. 10.66 Wildlife Conservation Act 1950 …. 14.59, 14.61, 14.71 s 6 …. 14.59 s 6(2) …. 14.59 s 12D …. 12.73 s 14 …. 14.59 s 14(2) …. 14.59 s 14(2)(ba) …. 14.59 s 15 …. 14.60 s 15A …. 14.59 s 16 …. 14.60

s 16A …. 14.60 s 17 …. 14.60 s 17A …. 14.60 s 23 …. 14.71 s 23B …. 14.61 s 23C …. 14.61 s 23D …. 14.61 s 23E …. 14.61 s 23F …. 14.79 s 23F(2) …. 14.61 s 23F(4) …. 14.61 s 23F(6) …. 14.61 s 23F(8) …. 14.61 Wildlife Conservation Regulations 1970 Pt 2 …. 14.60 Wood Processing (Wesbeam) Agreement Act 2002 …. 10.65

China Constitution of the People’s Republic of China s 26 …. 2.45

International Aarhus Convention 1998 …. 2.46, 4.20 Agenda 21 …. 8.7, 8.9, 8.10, 8.13 Ch 8 …. 8.9 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 …. 5.12, 14.28 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 …. 5.12, Pt D.7, 14.28

Antarctic Treaty 1959 …. 4.27, 5.12 art IX …. Pt D.8 Australia–Indonesia Zone of Cooperation Treaty 1982 …. 4.25 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal …. 5.12, 16.20 Annex IV s A …. 16.20 art 10(1) …. 16.22 art 11 …. 16.20, 16.21, 16.22 Basel Convention on the Trade or Transportation of Hazardous Waste across International Borders …. 4.30 China (China–Australia Migratory Bird Agreement: CAMBA) …. Pt D.7 Convention for the Conservation of Antarctic Seals …. 5.12 Convention for the Protection of the Natural Resources and Environment of the South Pacific Region …. 15.136 Convention on Biological Diversity 1992 …. 4.4, 4.10, 4.13, 4.24, 4.30, 5.12, 6.30, 8.7, Pt D.2 art 1 …. 4.16 art 2 …. Pt D.5 art 8 …. Pt D.2 art 10 …. Pt D.6 art 15 …. Pt D.6 art 16 …. 4.16 art 20 …. 4.16, 4.30, 4.31, 4.32, 4.36 art 20(b) …. 4.32, 4.35, 4.36 art 20(g) …. 4.32, 4.36 art 26 …. 4.21 art 27 …. 4.22, 4.23 Preamble …. 4.16, 12.68 Convention on International Trade in Endangered Species …. 4.5, 4.11, 4.30, 5.12, 14.2, 14.5

Convention on Intervention on the High Seas in Cases of Oil Pollution Casualties 1969 …. 5.12 Convention on the Conservation of Antarctic Marine Living Resources …. 5.12 Convention on the Conservation of Migratory Species of Wild Animals 1979 …. 5.12, Pt D.7, 14.28 Appendix I …. Pt D.7 Appendix II …. Pt D.7 Convention on the Continental Shelf …. 5.12 Convention on the Prevention of Marine Pollution by the Dumping of Wastes and Other Matter …. 15.136 Convention on the Territorial Sea and the Contiguous Zone …. 5.12 Convention on Wetlands of International Importance 1971 …. 4.44, 5.12 art 2 …. 12.22 Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region (the Waigani Convention) 1995 …. 16.22, 16.24 Convention to Combat Desertification …. 5.12 European Convention on Human Rights …. 2.46, 17.36 art 2 …. 17.36 art 8 …. 2.45, 17.36 art 13 …. 2.45 Intergovernmental Agreement on the Environment 1992 …. 6.25, 6.46 s 1.5 …. 6.48 Sch 3 …. 6.25 Sch 3 cl 1 …. 6.25 Sch 3 cl 5 …. 6.48 International Convention for the Prevention of Pollution from Ships 1973 …. 4.21, 4.24, 5.12, 15.114, 15.115, 15.116, 15.118, 15.120 International Convention for the Regulation of Whaling 1946 …. 4.5, 4.27

art VIII …. 4.20, 4.27 art IX …. 4.21 International Convention on Civil Liability for Oil Pollution Damage 1981 …. 4.24, 5.12, 15.121, 15.124 International Convention on Conservation of Nature in the South Pacific …. Pt D.8 International Convention on Liability and Compensation for the Carriage of Hazardous and Noxious Substances by Sea …. 15.125 International Convention on the Control of Harmful Anti-fouling Systems on Ships 2001 …. 15.129 International Convention on the Protection of the World’s Natural and Cultural Heritage 1972 …. 4.12, 4.44, 5.4, 5.11, 5.12, 5.15, 12.11 art 11 …. 12.12 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969 …. 15.119 Kyoto Protocol to the United Nations Framework Convention on Climate Change …. 4.3, 4.10, 4.11, 4.12, 4.16, 4.43, 5.12, 17.45 art 3 …. 4.8 art 3.3 …. 4.8 art 4 …. 4.8 art 4 (3–5) …. 4.16 art 11 …. 4.8 Montevideo Convention on the Rights and Duties of States 1933 art 1 …. 4.25 Montreal Protocol on Substances that Deplete the Ozone Layer 1987 …. 4.16, 15.133 Oil Fund Convention …. 15.124 art 3(1) …. 15.122 Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1992 …. 15.123, 15.125

art 4(2) …. 15.124 art 10 …. 15.123 art 11 …. 15.123 art 18 …. 15.123 Protocol on Environment Protection 1991 …. 4.27, 5.12 Protocol on Environmental Protection to the Antarctic Treaty …. 5.12 Protocol relating to Intervention on the High Seas in relation to Pollution by Substances other than Oil …. 5.12 Republic of Korea–Australia Migratory Birds Agreement …. 5.12, Pt D.7, 14.28 Rio Declaration …. 8.7, 8.8, 8.9 Principle 2 …. 4.18 Principle 3 …. 8.8 Principle 4 …. 8.8 Principle 7 …. 4.18 Principle 8 …. 8.8 Principle 11 …. 8.8 Principle 15 …. 8.8 Principle 16 …. 8.8 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade 1998 …. 15.135 South Pacific Nuclear Free Zone Treaty art 1(c) …. 15.131 Stockholm Convention on Persistent Organic Pollutants 2001 …. 15.135 Stockholm Declaration …. 8.2 Principle 2 …. 8.2 Principle 21 …. 4.15, 4.17, 4.18 Timor Sea Treaty 2002 …. 4.25 United Nations Conference on the Human Environment 1972 …. 8.2

art 21 …. 4.15 United Nations Convention on the Law of the Sea 1982 …. 4.11, 4.18, 4.22, 4.23, 4.25, 4.26, 5.12, 15.114 Pt XI …. 4.23 Pt XII …. 4.15 Pt XV …. 4.23, 4.25 Annex V …. 4.22 Annex VI …. 4.23 Annex VII …. 4.23 Annex VIII …. 4.23 art 2 …. 4.25 art 3 …. 4.25 art 5 …. 4.25 arts 6–16 …. 4.25 art 33 …. 4.25 art 52 …. 15.120 arts 55–57 …. 4.25 art 61 …. 4.26 art 62 …. 4.26 art 65 …. 4.26 art 74 …. 4.25 art 76 …. 4.26 art 77 …. 4.26 art 193 …. 4.25 art 207 …. 15.1 art 207(4) …. 15.1 art 213 …. 15.1 art 218 …. 15.20 art 220 …. 15.20

art 221 …. 15.119 art 284 …. 4.22 art 287 …. 4.23 s 30 …. 5.12 United Nations Framework Convention on Climate Change 1992 …. 4.4, 4.13, 4.21, 4.24, 4.30, 5.12, 8.7, 15.133, 17.36 art 2 …. 4.16 art 3.4 …. 17.45 art 4(1)(j) …. 4.21 art 10 …. 4.21 art 14 …. 4.22, 4.23 art 24 …. 4.13 Vienna Convention for the Protection of the Ozone Layer 1985 …. 4.30, 5.12, 15.133 Vienna Convention on the Law of Treaties 1969 …. 4.13 art 18 …. 4.10 art 31 …. 4.13, 4.44 World Trade Organisation Agreement on Sanitary and Photosanitary Measures …. 5.12, 5.45 s 5 …. 5.12 World Trade Organization Agreement 1994 …. 4.23

Netherlands Constitution of the Kingdom of Netherlands 2008 art 21 …. 2.46, 17.36

New Zealand New Zealand National Development Act 1979 …. 10.52 Protection of the Environment Operations Act 1997 s 252 …. 15.24 s 253 …. 15.24

Resource Management Act 1991 …. 20.118

Philippines Constitution of the Philippines 1987 art II s 16 …. 2.45

South Africa Constitution of the Republic of South Africa 1996 …. 2.45 s 26 …. 2.45

United Kingdom Clean Air Act 1956 …. 1.8 Gulf Oil Refining Act 1965 …. 3.44 Human Rights Act 1998 …. 2.46 Public Health Act 1936 …. 1.8 Rivers (Prevention of Pollution) Act 1876 …. 1.8 Territorial Waters Jurisdiction Act 1878 …. 5.29 Well-being of Future Generations (Wales) Act 2015 …. 8.41

United States of America Clean Air Act …. 17.42 Environmental Quality Act 1970 …. 1.12 National Environmental Policy Act 1969 …. 1.12, 4.46 National Environmental Policy Act 1970 …. 11.97

Table of Contents Detailed Table of Contents Preface Table of Cases Table of Statutes

Part A

The Development of Environmental Law: Institutions, Influences and Instruments

Chapter 1

The Growth of Environmental Law

Chapter 2

Environmental Law: The Social and Legal Context

Chapter 3

Environment Protection and the Common Law

Chapter 4

International Environmental Law

Part B

Implementation of Environmental Law

Chapter 5

Federal Governance and Environment Protection

Chapter 6

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA)

Chapter 7

Environmental Legislation: Purpose, Structure and Content

Chapter 8

Ecologically Sustainable Development: The Template for Environmental Management

Part C

Environmental Assessment: Strategic and Project-based

Chapter 9

Strategic Environmental Planning

Chapter 10

Development Control

Chapter 11

Part D

Environmental Impact Assessment

Protection of Biodiversity

Chapter 12

Protected Areas

Chapter 13

Native Vegetation

Chapter 14

Native Wildlife and Threatened Species

Part E

Environmental Management: Protecting Natural Assets and Environmental Values

Chapter 15

Pollution Control

Chapter 16

Waste and Contaminated Lands

Chapter 17

Energy and Climate Change

Chapter 18

Management of Natural Resources

Part F

Environmental Litigation: Enforcement and Accountability

Chapter 19

Standing in Environmental Litigation

Chapter 20

Enforcement of Environmental Laws: Remedies for Regulators

Chapter 21

Civil Enforcement: Remedies for Citizens

Chapter 22

Challenging Environmental Decision-making

Index

Detailed Table of Contents Preface Table of Cases Table of Statutes

Part A

The Development of Environmental Law: Institutions, Influences and Instruments

Overview

Chapter 1

The Growth of Environmental Law

Introduction A role for lawyers and the courts The development of environmental law

Chapter 2

Environmental Law: The Social and Legal Context

Introduction Governance and law The doctrine of the separation of powers The Crown Native title Aboriginal land rights Overcoming private rights: the vexed question of compensation Compensation for environmental restrictions Compensation for acquisitions of property The social context: framing environmental policy The influence of science Non-government organisations (NGOs)

Tortious actions against environmentalists and protesters The media Local government Environmental rights as human rights Rights of nature: ethics and environmental law The public trust Translating environmental policy into environmental law Legislation and legal instruments The role of the judiciary Interpreting environmental legislation Statutory aids to construction Using principles of common law in dispute resolution Merits review Matters of policy Specialist environmental courts and tribunals

Chapter 3

Environment Protection and the Common Law

Introduction The importance of property Ownership and management of natural resources Creation of proprietary and permissive interests The effect of environmental legislation on common law rights Common law actions Nuisance and trespass Nuisance Public nuisance Multiple nuisances Negligence The defence of statutory authority

Statutory schemes for liability Common law remedies Alternatives to common law actions

Chapter 4

International Environmental Law

Introduction Sources of international environmental law International conventions/treaties International custom General principles of international law Judicial decisions and the teachings of publicists Compliance and enforcement The sovereignty of nations Global trade and environment protection The influence of international law in Australia

Part B

Implementation of Environmental Law

Overview

Chapter 5

Federal Governance and Environment Protection

Introduction Commonwealth legislative powers in respect of the environment The trade and commerce power External affairs The corporations power Financial powers Special purpose grants Taxation Federal spending powers People of any race Coastal waters

Fisheries Acquisition of property on ‘just terms’ Other heads of power State legislative powers in respect of the environment The Constitution s 90 The Constitution s 92 Commonwealth places The Constitution s 109 The implied nationhood power The COAG agreement Cooperative federalism National policies and strategies Ministerial councils The Inter-Governmental Agreement on the Environment

Chapter 6

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA)

Introduction Application of the Act Actions The referrals process Consultation Significant impact The minister’s decision The assessment process Federal–state cooperative arrangements Bilateral agreements Ministerial declarations Regional Forest Agreements

Strategic assessments Controlled actions Environmental assessment of actions Assessment of Commonwealth actions that are not controlled actions Assessment by agreement with a state or territory of actions that are not controlled actions The approvals process Criteria for decision-making under the Act Conditions of approval Monitoring and Enforcement

Chapter 7

Environmental Legislation: Purpose, Structure and Content

Introduction The purpose of environmental law The effect of National Competition Policy Mutual recognition The structure of environmental law Definitions in environmental law Different legislative regimes may apply to the same activity The objects of legislation Statutory functions Instruments of environmental management Strategic or forward planning Project evaluation and licensing Licences, property rights and market-based approaches Market-based instruments Property agreements and covenants Creating protected areas

Public participation in environmental management Whole-of-government approaches to environmental management Conclusion

Chapter 8

Ecologically Sustainable Development: The Template for Environmental Management

Introduction The world conservation strategy Sustainable development as a global ideal ESD in Australia ESD as a legal concept Process or outcome? ESD in decision-making ‘In accordance with’ ‘Applying’ ESD The ‘public interest’ ‘Balancing’ is an executive function (subject to judicial review) Practical application of the principles of ESD Why sustainability? Is becoming ‘sustainable’ too expensive? Sustainability in decision-making A ‘whole-of-government’ approach to decision-making Tools for implementing sustainability in decision-making Strategic planning Strategic environmental assessment Project design Codes, guidelines and standards Standards need to reflect government policies Green Certification Schemes

Translating sustainability into conditions of consent Adaptive management as a condition of development consent Environmental assessment — projects Government procurement The precautionary principle Threats of serious or irreversible environmental damage The precautionary principle in practice The burden of proof Caution and prevention Intergenerational equity Conservation of biological diversity and ecological integrity Improved valuation, pricing and incentive mechanisms Conclusion

Part C

Environmental Assessment: Strategic and Project-based

Overview

Chapter 9

Strategic Environmental Planning

Introduction Allocating Crown land and resources Crown land Crown resources Environmental and resource management plans Codes of practice and guidelines Resource agreements Property agreements Environmental planning Environmental planning instruments State and regional environmental planning

Local environmental planning Environmental considerations in land use planning Integrated strategic planning National strategies and policies Strategic planning and project control

Chapter 10

Development Control

Introduction Development control in environmental planning legislation General scheme of development control Assessing the environmental impacts of development New South Wales Victoria Queensland South Australia Australian Capital Territory Western Australia Tasmania Northern Territory Planning agreements Offsets Integrated assessment for major projects Special development legislation Appeals

Chapter 11

Environmental Impact Assessment

Introduction Determination of need for EIA Interim protection pending EIS Inquiries

EIA Content The role of EIS in decision-making State-based EIA New South Wales Queensland Australian Capital Territory Northern Territory Victoria South Australia Western Australia Tasmania Adequacy of EIA Review of environmental aspects of proposals Appeals against EIA requirements Common criticisms of EIA Preparation of the EIS by the proponent EIA comes too late in the decision-making process Public participation Time and cost factors Post-decision monitoring and management Conclusion

Part D

Protection of Biodiversity

Overview International obligations for protecting habitat Domestic approaches Species approach to biodiversity conservation The legislative approach to biodiversity conservation

Chapter 12

Protected Areas

Introduction Commonwealth protected areas Bioregional planning Inventories of Commonwealth land World heritage The Great Barrier Reef Ramsar wetlands Biosphere reserves Commonwealth reserves Commonwealth heritage places Overseas places of historic significance to Australia National heritage places Conservation agreements Conservation zones Access to biological resources in Commonwealth areas State and territory protected areas Introduction Australian Capital Territory New South Wales Queensland Northern Territory South Australia Tasmania Victoria Western Australia Marine and aquatic reserves Forest reserves Management of reserves

Offences and enforcement

Chapter 13

Native Vegetation

Introduction Regulatory controls South Australia Australian Capital Territory New South Wales Queensland Victoria Western Australia Planning provisions Trees Offsets for Clearance of Native Vegetation Offsets are a ‘last resort’ Offsets under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) Crown leases

Chapter 14

Native Wildlife and Threatened Species

Introduction Commonwealth responsibilities Trade in wildlife and endangered species Interstate trade in wildlife Quarantine and biosecurity Commonwealth fisheries and marine areas The Antarctic Treaty (Environment Protection) Act 1980 (Cth) Threatened species and communities Migratory species Cetaceans

Listed marine species Wildlife conservation plans Eradication and control of non-native species State and territory legislation Introduction Native wildlife Australian Capital Territory New South Wales Northern Territory Queensland South Australia Tasmania Victoria Western Australia Exemptions for the preservation of traditional Aboriginal customs Threatened species Flora and Fauna Guarantee Act 1988 (Vic) Other states Identification of threatened species Nominations for listing Listing of threatened species, populations and ecological communities and key threatening processes Critical habitat Recovery and threat abatement plans Biodiversity and land use planning Species impact statements (NSW) Biodiversity certification of planning instruments (NSW) Evaluating applications for development

Part E

Environmental Management: Protecting Natural Assets and Environmental Values

Overview

Chapter 15

Pollution Control

Part A: Pollution from land-based sources Introduction National policies for management of pollution National Environment Protection Council (Environment Protection and Heritage Council) National Environment Protection Measures Implementation of national measures Enforcement of national measures State legislation Modern approaches to pollution control Defining pollution Environmental harm Managing pollution: strategic approaches Translating strategies into action Industry plans, programs, systems and schemes: an overview Review of decisions Enforcement Part B: Marine pollution from marine-based sources MARPOL Rights of intervention Enforcement Responsibility and liability for damage Supplementary Fund Criminal liability

Offshore Petroleum Sewage, garbage, harmful substances and air pollution Radiation Ozone-depleting substances Other hazardous substances Dumping at sea Ballast water

Chapter 16

Waste and Contaminated Lands

Part A: Waste management Introduction Waste minimisation and resource recovery Product stewardship and extended producer responsibility Product stewardship Waste activities, facilities and transport International movement of hazardous substances and waste Imported waste Remediation or mitigation of damage Part B: Contaminated land Introduction Planning controls Assessing, reporting and managing contamination Site audits Appeals

Chapter 17

Energy and Climate Change

Introduction The Climate Change Convention and the Kyoto Protocol Eligible emissions reduction activities Domestic legislative initiatives

National Greenhouse and Energy Reporting Act 2007 (Cth) (NGERA) The Carbon Farming Initiative (CFI) Energy Energy efficiency Demand side management Carbon capture and storage Planning for climate change Climate litigation Are greenhouse gases ‘pollution’ under existing law? Climate change and impacts on property rights How might common law remedies be used in climate-induced litigation? Judicial review of decision-making where climate change is a ‘relevant factor’ Climate change in merits appeals Climate change in criminal prosecutions Conclusion

Chapter 18

Management of Natural Resources

Introduction Environmental management of natural resources The planning system as the traditional focus for natural resources management Cumulative impacts Water resources The Living Murray Water efficiency Fisheries Coastal protection Mining and petroleum

Coal seam gas (CSG) Nuclear energy Forests Soil conservation

Part F

Environmental Litigation: Enforcement and Accountability

Overview

Chapter 19

Standing in Environmental Litigation

Introduction The traditional approach Property and economic interests Social and cultural interests Statutory rights and entitlements Standing granted by legislation Modification and expansion of the standing rules Reappraisal by the courts Statutory relaxation of the standing rules Action by or with the consent of the Attorney-General Class and representative actions Taking part in proceedings Action by a ‘friend of a parry’ Intervenors Joining parties to the proceedings

Chapter 20

Enforcement of Environmental Laws: Remedies for Regulators

Introduction Administrative remedies Administrative orders for environment protection

Other administrative action Civil remedies Enforcement orders Civil penalty provisions Enforceable undertakings Criminal enforcement Introduction Investigation and proof of offences Causation Classification of offences Offences involving mens rea Vicarious liability Corporate environmental crime Vicarious liability of directors and managers for offences committed by the corporation Liability as an accessory Double jeopardy Privileges against self-incrimination and exposure to penalties Defences Due diligence Honest and reasonable mistake of fact Other statutory defences Corporate defences Sentencing General approach to sentencing Additional sentencing options

Chapter 21 Introduction

Civil Enforcement: Remedies for Citizens

Civil enforcement Criminal proceedings Civil remedies Injunctions Interlocutory injunctions Declaration Prerogative writs Damages Orders for restoration or remediation Costs in civil litigation What is ‘public interest’ litigation? Indemnity costs Protective costs orders Security for costs Legal aid and pro bono assistance

Chapter 22

Challenging Environmental Decision-making

Introduction Internal review or reconsideration Merits appeals Costs in merits appeals Evidence and expert witnesses Alternative dispute resolution Judicial review Reasons for decisions Legislative denial of judicial review (‘privative clauses’) Natural justice or procedural fairness Other procedural irregularities Want or excess of power

Certainty in decision-making Relevant and irrelevant considerations Improper purposes and ulterior motives Manifest unreasonableness Dealing with government policy Delegation of decision-making Effect of a finding of invalidity Index

[page 1]

PART A The Development of Environmental Law: Institutions, Influences and Instruments Overview Pt A.1 Unlike many legal disciplines, which often have a history going back hundreds of years, the development of environmental law in Australia has been concentrated effectively into the last 40 years. Before this, although there was case law and legislation that dealt with ‘the environment’ this tended to be from the point of view of protecting the property and health of citizens rather than from a desire to protect or manage the environment per se. Only in recent decades has the realisation fully developed that environmental management and protection is important for its own sake, not just for anthropocentric reasons; although of course human relationships with the environment are still vitally important. This period of development has been quite remarkable. Hundreds of pieces of legislation and thousands of court and tribunal cases testify to the fact that this discipline has been maturing at a pace unequalled by any other. The sheer volume of material is daunting; and many legal practitioners and academics now prefer not simply to specialise in ‘environmental law’, but in subsets of environmental law such as climate and energy, water, pollution and waste, and environmental planning. Like any [page 2] legal discipline, however, environmental law has developed, and continues to develop, in the context of the social, economic and legal structures of the society it serves. Environmental law is the outcome of environmental policies; and

environmental policies reflect, and sometimes give leadership to, the aspirations of society as a whole. Without broad-based community support (or at any rate in the absence of strong opposition), environmental laws, like any other laws, are unlikely to survive. The development of environmental policies and laws is also influenced by our legal traditions, particularly those inherited from the common law; and also by our ‘place in the world’ and the obligations we have accepted under international treaties as part of a global community. Part A is an introduction to all these social, legal and international influences.

[page 3]

Chapter 1 The Growth of Environmental Law Introduction 1.1 Concern for the environment is not new,1 though environmental law, as a discipline, is barely 40 years old. The influences that shape modern environmental policies, and thus environmental laws, of course reach much further back, as governments today try to grapple with the inheritance left to us by past generations that had less understanding of the effects of their activities on the life support systems of the planet. Contemporary environmental law has been shaped, and is still being shaped, not only by the need to address new environmental threats as they are identified, but also by the accumulated wisdom of governance and law that has moulded our society, and our approaches to fresh challenges, over hundreds of years. Responding to environmental problems often demands a steep learning curve, and environmental law is therefore very much an area of law that is dynamic and innovative in its attempts to implement and give meaning to contemporary government environmental policies. One thing, however, appears certain: no one now questions the need for environmental laws, even though the content and application of those laws may often become a matter for vigorous public debate. 1.2 It is now well recognised that degradation of the natural environment not only adversely affects the biological diversity of the earth, but also impacts adversely on the human environment, by lowering the quality of life, by affecting the economy, and by impacting on health. This book is about the laws that require impacts of decision-making on the natural environment to be identified, evaluated and taken into account by government regulators; and require all citizens, including corporations and governments, to comply with environmental laws and instruments of management properly created under those laws. 1.3 As we shall see, environmental law is mainly a product of legislation.

The law, however, does not exist in a vacuum; it takes its shape from the fundamental aspirations and values of our society, and the traditional interests and expectations on which our society is built. Our society, and therefore our laws, reflect Western democratic values and capitalist philosophies, which inevitably influence the choice and development of government environmental policies and thus the scope and content of environmental law. This is discussed further in Chapter 2. [page 4] 1.4 It may seem axiomatic to describe environmental law as that body of law that is concerned with ‘the environment’.2 In common parlance, however, there are a number of environments that are the subject of government policy initiation and decision-making; and since statute law is really a reflection of government policy, environmental law in reality is not so much about blanket protection of ‘the environment’, as about enabling decisions to be made that reflect a balance, or, better, an integration, between the different environments that are the concern of government. These environments include: the natural environment, the built or urban environment, the cultural environment, and the economic, social, health and work environments. Inevitably, these environments overlap, and so environmental laws may serve more than one function. Pollution, for example, may affect human health as well as the natural environment, and so pollution law carries the objective of protecting both human health and the natural environment, within a context of best practice management that reflects the economic and technological realities of putting control measures into place. 1.5 Environmental planning seeks to promote economic and social goals as well as the protection of the natural and cultural heritage. Strategic planning of land use therefore attempts to balance the need for economic development with the need to provide places to live and work that allow for the maintenance of a reasonable standard of environmental quality and the protection of significant environmental features. Laws governing land degradation and clearance of native vegetation reflect concerns not only about the disappearance of biodiversity but also about the economic effects of soil erosion and salinity on rural landholdings and thus the national economy. Even laws concerned with the protection of threatened species of plants and animals fail to give blanket protection, building into decision-making consideration of the social and economic impacts of preservation. And perhaps the most obvious example of all: emissions of greenhouse gases are

not regulated by pollution laws but their diminution is encouraged by a suite of clean energy legislation that relies on economic incentives to be effective. This approach is not surprising given that the central lynchpin around which environmental management throughout the globe revolves – the concept of sustainable development – is itself defined in terms of the integration of environmental and economic factors in decision-making: see Chapter 8. 1.6 Environmental law in Australia is therefore all about making sure that impacts on the natural environment are identified and taken into account in decision-making. Environmental law provides government regulators, and also private citizens and corporations, the tools with which to pursue and achieve this objective, often indicating what criteria must be considered in carrying out this process, and allowing decisions to be tested in specialist environmental courts or tribunals. Thus, environmental law is largely about enabling and guiding decision-making rather than commanding proscriptive outcomes. It rarely seeks to prioritise environmental criteria, instead providing structures for decision-making which recognise and give full credit to [page 5] environmental values, but within which sustainable outcomes for all ‘environments’ may be pursued. 1.7 Environmental law draws its content and its inspiration from many other branches of the law, but it also influences and develops those other disciplines.3 For example, corporate liability for environmental harm reflects well-understood notions of corporate law, but extends liability considerably beyond that developed by traditional corporate law. Real property transactions cannot be safely undertaken without recourse to the law relating to contaminated sites. In fact, no corporate or commercial lawyer could purport to effectively advise clients today without a fundamental appreciation of the impact of environmental laws. Many challenges to environmental decision-making rely on well-established principles of administrative law, and environmental cases enrich and develop this area of the law.4 Environmental law is also inevitably tied up with local government and constitutional law, with the making of contracts, with trade, planning and development, and the use of natural resources. Environmental law then is more than just a collection of legal principles drawn from existing sources. Environmental problems frequently demand novel policy, and therefore

innovative legal solutions; and in this way environmental law is also assisting, and often leading, the development and refinement of established legal approaches to new social challenges and readjusted community values. 1.8 Although most modern environmental law is, at best, hardly four decades old,5 and usually much less than that, environmental law is not solely a product of the twentieth and twenty-first centuries. The courts of common law were dealing with complaints about pollution as early as the fourteenth century, and anti-pollution legislation was on the statute book by the late fourteenth century. Initially, both judicial activity (which reached a peak in the nineteenth century, reacting to the impacts of the Industrial Revolution) and legislative action reflected more a direct response to particular public health problems than any general concern about environmental quality. For example, the earliest ‘environmental’ statute appears to be 12 Ric 2c 13 in 1388, prohibiting the throwing of dung and other filth into rivers and ditches close to any towns or villages. The Bill of Sewers,6 enacted in 1531, empowered the Crown to issue commissions to keep sewers, trenches and ditches cleansed and deal with land drainage, flood prevention and coastal erosion. Persons throwing dung into the River Thames in the sixteenth century were liable to a penalty of one hundred shillings.7 Even as late as 1875, water pollution problems in England were still being dealt with under the great Public Health Act of that year. Indeed, only the sensitive noses of nineteenth-century members of parliament, who could not bear to take tea on [page 6] the terraces of the Houses of Parliament at Westminster due to the appalling stench coming from the River Thames, finally secured the passing of the Rivers (Prevention of Pollution) Act 1876 (UK). Public health considerations also lay behind the passing of the comprehensive air pollution regulations contained in the Clean Air Act 1956 (UK). In the winter of 1952, over 2000 Londoners had died as a result of exposure to smog. Previously, ‘smoke nuisances’ had been dealt with under the Public Health Act 1936 (UK). 1.9 This piecemeal type of development was reflected in early Australian legislation,8 with pollution being treated at first as a nuisance incidental to public health and local government functions. Only in the late 1960s and early 1970s was more comprehensive pollution control legislation enacted, together with other environmental protection and conservation legislation. Increased legislative activity was encouraged and assisted by a more organised, focused and insistent movement towards preservation and protection of the natural

environment that had gained momentum in the early 1960s. It seems to have originated in the United Kingdom and in the United States at virtually the same time, though there was an immediate worldwide reaction among developed nations, and the movement quickly spread to Australia and New Zealand. 1.10 It is difficult now to understand why this focus of attention has been so comparatively recent. Certainly, environmental problems have been pressing for serious attention at least since the dawning of the great age of the Industrial Revolution, although Australia has been affected less in this respect than other more highly industrialised and overpopulated nations of the Western world. Perhaps the post-revolution preoccupation with economic growth (and depression) and the war years, together with long working hours and less opportunity for travel, left people with little knowledge of, or little inclination towards, aesthetic or environmental values. Amateur environmentalists and naturalists might have been uneasy with the degrading effects on habitats and species that they were witnessing, but they were yet to be formed into meaningful lobby groups that could exert pressure on governments. Then again, it is only comparatively recently that certain health risks inherent in various types of pollutants, as well as the economic and social risks of, for example, loss of biodiversity, land degradation, and now climate change, have been discovered and widely publicised. 1.11 Prosperity and stability did not return to the common law world until the economic ravages of the war years had been repaired by commerce and industry. This in turn led to a higher standard of living with a general reduction in working hours and more free time and opportunity to enjoy and speculate on the pleasures and values of natural amenities. A return to a full peace-time economy and expansion in commerce and industry due to fresh technological developments, however, inevitably led to increased exploitation of natural resources and increased pollution from new manufacturing processes. Scientific investigation began to produce hard facts and figures about the disappearance of natural resources, and about the effects [page 7] of pollution on the environment. Recreational interest groups such as anglers were already aware of the effects that pollution could have on their amenities, but now more ‘environmentalists’ were beginning to organise themselves into conservation bodies that began to grow uneasy about maintaining and improving environmental quality.9 The process seems to have been one of ‘creeping awareness’. Books such as

Rachel Carson’s Silent Spring10 helped to publicise the results of serious research into environmental problems and were instrumental in exposing issues and placing them before the general public. Some popular music groups and singers of the day even built their reputations and careers on the ‘environmental religion’ they preached to their followers.11 The media began to take an interest and suddenly people were confronted with pollution and other evidence of environmental degradation in their own living rooms. The general public began to realise that increased technological and industrial development not only brought distinct material advantages, but also had unwelcome side-effects that had not previously been publicised. Ordinary people, therefore, became better acquainted with terms such as ‘pollution’, ‘environment’ and ‘conservation’. They talked about the issues involved and began to take more than just a passing interest in the outcome. 1.12 In the United Kingdom, the government of the day reacted by creating a Department of the Environment to initiate, coordinate and administer government policy on environmental matters. Early in 1970, a Royal Commission on Environmental Pollution was also appointed ‘to advise on matters, both national and international, concerning the pollution of the environment; on the adequacy of research in this field; and the future possibilities of danger to the environment’.12 The commission acted as a sort of ‘environmental watch-dog’, reporting every year on the progress that had been made in specific areas and warning of problems still to be dealt with. In the United States, Congress passed the National Environmental Policy Act 1969 (US). This required that, in future, a full assessment should be made of the environmental impact of all proposed developments involving federal agencies, and provided for the creation of an independent Council for Environmental Quality to assist and advise the President on all environmentally significant proposals. The following year, the Environmental Quality Act 1970 (US) also created the Office of Environmental Quality to assist federal agencies in carrying out their functions where environmental matters were concerned. [page 8] In Australia, the Commonwealth and state governments responded in the early 1970s with pollution control and other environmental coordination and protection legislation. An Australian Environment Council was created to coordinate Commonwealth and state activities relating to environmental matters. Internationally, environmental issues came to occupy the attention of all the great multinational assemblies and many internationally agreed

measures have been translated into domestic legislation to fulfil international legal obligations.13 1.13 The environmental movement must therefore rank as one of the great social revolutions of history. On the other hand, the suddenness with which environmental affairs were swept into the limelight, and the challenges that a new set of values made to established institutional and legal structures, also led to significant political and social tensions, created by the competition between differing sets of values and conflicting community expectations. The 1960s and 1970s were, in many respects, a time of conflict in which new, but widely held, values were struggling for recognition and expression. Former Chief Justice of the High Court and past president of the ACF,14 Sir Garfield Barwick, put it this way:15 The problem, like so many with which humans are faced from time to time, involves an intelligent balance, achieved by the use of knowledge, reason and wisdom: that balance will be found in the use, which though affecting a not undue change and not more than an acceptable modification of the environment, yet results in the proper maintenance of resources and environment for the benefit of another generation. But by the very expression of the problem in that way the difficulties of deciding what is undue and what is unacceptable readily emerge. There are, in most cases, two sides of the argument, much to be said pro and con. The solution must be the result of calm and objective consideration, however strongly opinions may be held and expressed, and however much emotion or intensity of feeling may have been aroused.

1.14 Certainly, environmental protection in those days proved to be an emotive subject; the reasons are not hard to discern. The Foreword to the Western Australian Environmental Protection Authority’s Annual Report for 1979–80 explained why: One problem that confronts both environmental agencies and those in the community who are particularly concerned with conservation issues is not so much the major isolated development, but rather the case of slow but continuous environmental degradation or loss of valuable natural resources. An environment is rarely destroyed or a conservation reserve lost in one fell swoop, more often it is due to a slow process of attrition. Each incremental loss or degradation may be minor in itself but cumulatively they add up to an unacceptable sacrifice. Examples are to be found everywhere: the excision of a small

[page 9] piece of a national park for mining or agriculture, the first subdivision in a scenic rural landscape that sets the pattern for more, the polluting discharge which is insignificant by itself, but which taken with others destroys the ecosystem, or the freeway that follows the river shore. A very good case can be made for each when it is considered in isolation, and the costs and benefits are examined only in relation to that one case. The financial advantages may often be seen to outweigh the environmental damage or loss, particularly as the latter is often hard to quantify. Yet no-one, apart from a few extremists, would be prepared to accept open slather for mining, to have all our rivers fringed with freeways or to see our forests whittled away. Expediency is the main enemy of conservation and must be fought if we are to preserve the best of our environment for future generations. Because an environment once lost is very hard to recover

and because of the insidious nature of incremental environmental damage, some concerned conservationists take a very hard line on development, seeing it as the thin edge of the wedge and tending to find fault with every proposal that comes forward. As a reaction, there are some who support development virtually regardless of environmental cost and who tend to write down legitimate concern as being trivial and unimportant in their continuous quest for growth. The battles that develop between those holding these two sets of extreme views confuse the issue, and assist the cause of neither sensitive developments nor sensible conservation.

1.15 In most countries, the responsibility for environmental degradation was laid squarely at the feet of industry. There is no doubt, of course, that for years manufacturing concerns had treated air and water as a sort of natural conveyor belt to carry away all kinds of harmful effluents that could have been disposed of in less ‘convenient’ or more expensive ways. But prior to the ‘environmental revolution’, there was no pressure on them to do otherwise. As the former Administrator of the United States Environmental Protection Agency said:16 The search for scapegoats may be inevitable but their discovery rarely results in enlightened policy. In America, the focusing on industry as the ultimate scapegoat resulted in all suggestions for legislation being judged on whether they were ‘tough’ or ‘weak’ against the foe. This often distracted us from the only relevant judgmental question which was whether the suggestions were wise.

Professor Sandford Clark also pointed out that the task of government was not to protect each conflicting interest from adversity, but to strike a balance between conflicting interests:17 Compromise is inevitable. Not all objectives can be obtained. The credibility of the conservation movement in the eyes of government — and, consequently, its effectiveness — is endangered by failure of some conservationists to acknowledge this reality. The utter intractability of some adherents to the movement immediately puts them out of sympathy with the politician to whom compromise is, necessarily, a way of life.

1.16 Nevertheless, the environment movement was gaining traction and ‘mainstream’ Australia was beginning to sympathise more with the values being [page 10] espoused. Environmentalists began to think more about how the law could assist in resolving environmental disputes. Political protest and lobbying continued unabated during the 1980s, particularly over issues such as the logging of rainforests, protection of wilderness and effective control of water pollution; but environmental lobby groups also began to target the courts in a bid to use legal structures to publicise the issues and, inevitably, to expose weaknesses in legal responses and press for reform. Environmental issues began to interest the legal profession; the possibilities for court-based

resolution of disputes began to be explored, and judges were forced to confront interests and values that had to date been largely unexplored in the courtroom. Subsequent exposure of the inability of the law, tied to traditional notions of common law values, to respond to ‘new wave’ environmental concerns ultimately convinced law-makers to take matters into their own hands — and modern environmental law was born.

A role for lawyers and the courts 1.17 The world of environmental management and protection is a multidisciplinary one populated by biologists, zoologists, architects, archaeologists, botanists, planners, landscape architects, chemists, economists, geographers, geologists, engineers and consultants in general, together with the representatives of a whole host of other disciplines, and, of course, politicians. Passively, the law may simply reflect the solutions worked out by interaction between these other disciplines. But lawyers increasingly have a more active role to play, and courts and tribunals, as protectors of the public interest and as forums for the weighing up of conflicting arguments, may legitimately help to ensure that controversial recommendations and decisions are based on an objective assessment of all the relevant evidence. United States consumer advocate Ralph Nader once wrote that ‘the emergence of environmental law in practising law firms has been stifled because lawyers are traditionally engaged to uphold the very established interests that may prove anathema to environmental considerations’.18 He also accused lawyers of adopting a ‘stagnant, unimaginative posture’ to environmental actions and pointed out that lawyers are a rather cautious breed and they do not like to take on new kinds of cases with which the law is not readily familiar. European commentator Ludwig Kramer has also said: ‘[E]nvironmental lawyers are first of all lawyers and thus share all the virtues and deficiencies of this social class — upper middle class, some social prestige, seldom in top positions, more frequently acting as advisors or men in the background, indirect power, trained to justify or to assess decisions that were taken by others’,19 and more recently he has criticised environmental lawyers for deserting their grass roots base and becoming too close to ‘the establishment’.20 1.18 That environmental issues are a matter of legitimate and expanding concern for lawyers, however, would not be questioned today. Indeed, most

sizeable law firms would boast environmental law sections, and medium sized firms are likely to have [page 11] specialist environmental lawyers. A growing number of solicitors and barristers also specialise in environmental law, and some of these are now finding their way onto court benches.21 As environmental laws continue to expand in response to policymaking that reflects new scientific findings and readjustment of community values, decisions that affect environmental values become more carefully scrutinised and inevitably the need for environmental legal advice and representation becomes more widely and actively sought. 1.19 The need for lawyers to become involved in environmental protection has been confirmed over the years by some of the most highly respected members of the judiciary. Lord Wilberforce said in 1969 that ‘Australia is the place where on the whole man leads a more balanced and sane existence than anywhere else and where the environment, though it has suffered some losses, is still more generally intact than in any comparable area’. But he also warned that ‘these particular values have no automatic or built-in right to survival’ and that ‘lawyers would be failing the community if they did not play a part in their preservation’. Lord Justice Scarman (as he then was) also referred to the ‘challenge of the environment’22 and pointed out that if the law and lawyers were to retain a relevant role in environmental protection, then they must find some meaningful way to regulate harmful activities rather than leave it to some specialist administrative agency remote from legal control. In New Zealand, Justice Cooke said that ‘from time to time a case comes up when there is a choice of the path the law should follow. I would claim that when confronted with such a choice, most judges and magistrates today are willing to give full weight to any relevant environmental considerations’.23 In Canada, Judge Johnson remarked that for a judge not to be concerned about environmental preservation and damage ‘would be the same as being against motherhood’.24 In the United States, the late Justice Douglas was a noted environmental law campaigner. Tobriner and Willemsen stated: For generations of conservationists Justice Douglas served as our spokesman on the Supreme Court. Douglas led the court to recognise that the public interest in land and its uses goes beyond the traditional considerations of economics, safety and morality.25

Justice Murphy to some extent tried to do the same in the High Court of Australia.26 1.20 The advent of specialist environmental courts and tribunals in Australia, and increasing familiarity with environmental issues in mainstream

courts, has also encouraged a new wave of judges to expand the boundaries of the law to encompass environmental concerns. The dramatic change in attitude in the Federal Court within the space of one decade to the standing of litigants representing environmental concerns is [page 12] testimony to the ability of judges to adapt to new public expectations.27 Of the specialist courts, the Land and Environment Court of New South Wales, the first of its type, has led from the front in the development of the new environmental law,28 and judges of the ilk of former Chief Judge Jerrold Cripps and, more recently, Justice Paul Stein,29 have left an indelible mark on the interpretation and application of new legal and policy concepts in decision-making such as the requirements for environmental impact assessment (EIA)30 and application of the precautionary principle.31 The foundations secured by these earlier visionaries are now being built on by the current Chief Justice, Brian Preston, who has gained remarkable traction in a comparatively short space of time with pressing issues such as the application of principles of ecologically sustainable development (ESD)32 and principles of sentencing33 in environmental cases, as well as modernising the structures and procedures of the court.34 Similar reforms to processes and procedures that enliven proceedings in the court have been undertaken in the Queensland Planning and Environment Court. Specialist planning and environment divisions of tribunals, such as the Victorian Civil and Administrative Tribunal (VCAT), have also been successfully grappling with important issues such as the practical implementation of principles of sustainable development, and responses to climate change. In fact, as will become apparent throughout this book, environmental cases are now being brought before courts and tribunals in all jurisdictions, at all levels. The specialist courts and tribunals are discussed further at 2.72. 1.21 There are, of course, critics who are opposed to a heavy judicial involvement in environmental decision-making. They would say that lawyers are not equipped to decide many of the issues involved, which might require technical or scientific evaluation, and that the value of the adversarial system of legal procedures becomes less reliable as the facts become more numerous and complex.35 Noted Australian jurist Justice Michael Kirby, a retired High Court judge, has said that ‘one of the basic problems is that the adversary system focuses on victory rather than truth. But an even more fundamental problem may be that the experience of lawyers, and their education, is such as to make the detailed understanding of the language of science and technology uncongenial or even impossible’.36

[page 13] In this quest for victory, there may be a temptation to try to discredit scientific witnesses who can, at best, only give qualified answers to difficult predictions, while at the very least the adversarial nature of legalistic inquiry often appears harsh and unnecessarily aggressive to the scientific community.37 The ability of the court to evaluate complex scientific evidence is made more difficult because scientific witnesses cannot directly question each other but have to conduct their case through only partly comprehending lawyers, leading to the possibility that bad science may be accepted as proven fact.38 Another judge has argued that ‘substantive review of mathematical and scientific evidence by technically illiterate judges is dangerously unreliable’ and that judges should therefore concentrate their efforts on strengthening administrative procedures.39 1.22 On the other hand, ‘notwithstanding the fact that most lawyers are not scientists and have some limitations in the development and understanding of scientific and technical data, they do have a significant role relative to scientists. That is, the effective organisation of extensive quantities of data, and its logical arrangement, in a manner consistent with evidentiary requirements, so as to ensure a party’s case is put forward to its best advantage’. As Sax has pointed out, the courts are frequently called on to decide cases in which the evidence of technical experts is crucial to the outcome.40 If environmental decision-making was to be left solely to the executive, then there would be no means of testing the quality or legality of decisions made. Arguably, the possibility of legal or merits41 review of environmental decisions by an independent umpire should strengthen the quality of decision-making. Judge Oakes, an American circuit judge, once commented that:42 … while a court may never understand a specific problem as well as a scientist or EPA administrator, such depth of understanding is not necessary to decide the lesser question whether an agency has acted arbitrarily or capriciously. When, as is so often the case in environmental litigation, briefs are submitted by three sides — agency, industry and public interest group — no judge genuinely interested in the issue can fail to get a modicum of education adequate for the problem at hand. In the end, much depends upon the conscientiousness or ability of the individual judge, just as much depends, at other levels in the system, upon the individual traits of agency officials or laboratory scientists. When experts talk only to each other, they tend to forget for whom the decisions are being made. When they are forced to explain their decisions in terms a judge can understand, it is more likely that the public also will understand. This, then, is a key benefit from generalist court review: it makes environmental decisions more comprehensible to those who must ultimately pay the costs of implementation.

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1.23 The marriage of science and law — the one traditionally an investigative discipline, the other adversarial — is not easy.43 The fact is, however, that the public is increasingly demanding more transparent and accountable decision-making, which translates into better access, both in terms of the right to participate and the right to challenge. Rising levels of education, and the demise of ‘authoritarian tradition’ in Australian education, has led to increased demands for consultation and participation and an expectation that progressive laws will not only be enacted by governments, but also that the administrative machinery to carry out those laws and test or enforce them, even against governments, will be provided. Agitation for such rights, and for access to information from government files, has slowly unveiled the mask of secrecy that used to surround so much bureaucratic endeavour, and thus made it easier to challenge governmental decisionmaking. Administrators and politicians have thus come to see the wisdom in consultation before an important decision is taken, rather than suffer embarrassment and criticism afterwards. However, they are also increasingly realising the value of giving objectors their ‘day in court’ as a final and independent resolution to disputed decisions. Denying the possibility of appeal to an independent umpire can tend to lengthen a dispute in the political arena and cause unnecessary anxiety and delay for all parties. Specialist appeals bodies, and sometimes commissions of inquiry, are therefore being asked more and more to judge the merits of particular development issues in which scientific and technical evidence is playing an increasingly important part in the proceedings. And this task is likely to escalate as concepts of sustainability become crucial to decision-making. 1.24 Lawyers representing clients before such courts will be required, therefore, to gain some command of scientific concepts and methodologies in order to grapple with notions of sustainability. For example, the scientific evidence that may be vital to establishing the sustainability or otherwise of a particular proposal, such as the logging of native forests, offsetting the impacts on biodiversity from a disputed project, or long-term effects of pollution loads on aquatic ecosystems, may be dependent on the establishment of long-term ecological monitoring programs.44 Computer modelling is thus being used to shorten such time frames; and also to supply information where none is currently available, and to make predictions based on known45 and — in the case of climate change impacts — constantly emerging or revised data. One of the downsides to traditional rights of property in our common law system is that vital on-the-ground research cannot be carried out on private

property without the consent of the landowner. Regulators’ powers to demand entry to private land is triggered only by the suspicion that a contravention of a statute may have taken place, [page 15] not by the desire to do research.46 Consequently, extrapolations from known evidence, gathered predictably on public land, may sometimes be used to fill in the gaps in knowledge. Using scientific data gathered in the short term, computers are being used to predict outcomes in the long term. Of course, the accuracy of these models depends entirely on the adequacy of the database used to feed them. Where this base is limited, computer models incorporate various assumptions. This combination of short-term data gathering plus the use of assumptions affects the ultimate predictions quite considerably, so that computer models developed for similar purposes may not agree with one another or indeed may not accord with what actually happens in ‘real life’. This is why, for example, there is so much argument over the true nature of the ‘greenhouse effect’. As the court said in Thornton v Adelaide Hills Council (2006) 151 LGERA 1 at 9: … the Court in many instances in the past has relied on the results obtained from the use of scientific models to assist it in the assessment of environmental impacts. Nevertheless it acknowledges that models are a theoretical construction of the real world and that they have limitations. There is a need, therefore, to ensure that the model is relevant and respected as a tool, and the inputs fairly represent the operational and environmental conditions that would exist if the facility in question was commissioned.

Lawyers, as well as policymakers, need to understand the bases of scientific theory and the limitations of computer predictions. Indeed, in applying the precautionary principle47 it would seem to be crucial. 1.25 Both lawyers and scientists also need to understand the reasons for the differing standards of probability applied by the different disciplines. In law, the criminal burden of proof is ‘beyond reasonable doubt’; however, in civil cases, a lower standard of proof applies — ‘on the balance of probabilities’. This contrasts with the generally accepted scientific criterion for probability that is based on a 95 per cent confidence level in an animal or human study. Jeffery has argued48 that the higher standards of proof are not appropriate at tribunal level: In contrast to the goals of both science in the pursuit of scientific knowledge or truth, and society in the interests of justice, the decision-maker in the environmental context is faced with the immediate task of deciding whether to approve or reject a proposal. In doing so he or she must come to terms with the technological state of the art as presented by expert witnesses, while at the same time evaluating the social and economic considerations which frequently reflect conflicting community and societal concerns. Often the question is not whether the proposal is

the ‘best possible’ solution to a particular problem, but rather is it ‘environmentally acceptable’ or ‘suitable’ taking into account the much broader range of criteria which must be fully canvassed and considered?

[page 16] 1.26 Christie49 has also pointed out that the law tends to perpetuate a common misconception ‘that the scientific method implies exactness and certainty’ — something that scientific research often cannot deliver, thus making it impossible to fulfil legal expectations that science can allocate responsibility or blame. Both lawyers and politicians, however, need to keep abreast of science. Scientific discoveries and the application of that knowledge are changing the world about us at an extraordinary pace and in ways that are not always easy to predict in terms of environmental impact. For example, research into the genetic manipulation of organisms has now progressed to the stage where intentional releases into the environment have been taking place. Scientific knowledge about ozone depletion and climate change continues to increase and, in some respects, change. The environmental and economic values ascribed to biodiversity and integrated ecosystems continue to be discovered or refined. Lawyers, as much as politicians, need to keep up to date with scientific and technical progress in order to assimilate and use the latest information, techniques and processes for the benefit of their clients and constituents. 1.27 Despite the problems, the advantages of courts and tribunals as fora for evaluating arguments and balancing conflicting interests should not be overlooked. They are politically unbiased and free of such influences; independent of the administration, whose job it is to translate policy into action; and staffed by judges and commissioners who are experienced in evaluating conflicting arguments or who bring a wealth of professional experience to the issue, and whose decisions are largely respected. And, above all, such fora should enable citizens to be heard and ensure that their views are taken into account in the ultimate decision-making processes. The courts can thus ensure that a decision is reached objectively, fairly and honestly, taking into account relevant factors and excluding irrelevant ones, and make sure that a reasonable conclusion is justified by all the available evidence. 1.28 The tendency today is to recognise and accept that there is a legitimate role for the courts to play in reviewing environmental decision-making, and, at least in a number of jurisdictions, that specialist environmental courts are better placed to undertake this task.50 In asserting this as a proper role for

courts and tribunals, however, it must not be overlooked that there are certain impediments still within legal processes that must be overcome if the law is to provide any significant assistance to the development of ESD; for example, in some jurisdictions, the problem of finding someone who has the ‘standing’ or right to bring an action.51 The cost of funding such actions is also a real hurdle to litigation.52 One welcome development in the courts to try to reduce costs, particularly in merits appeals, has been the introduction of alternative dispute resolution. Encouraging the [page 17] parties to mediate to resolve disputes, before the necessity for a formal hearing is forced on them, undoubtedly assists the parties to understand better each other’s points of view and may significantly reduce the time and costs of formal court action. Judges and court officials have undertaken formal courses in mediation techniques to try to assist parties reach such resolution, with significant success. Nevertheless, the availability of merits appeals is dictated by legislation, which in turn is dictated by government policy, and it remains true that significant areas of government decision-making are not subject to appeals on the merits by interested parties other than applicants and must be challenged, if at all, by an application for judicial review.53 1.29 The emergence of specialist environmental courts and tribunals in Australia also marks the proliferation of environmental legislation and decision-making in recent years. Along with this has come increased corporate awareness, responsibility and regulation with respect to environmental issues, the better organisation of community groups, and greater opportunities for public participation in environmental planning and natural resources management. As a result, environmental issues have increasingly found their way into solicitors’ offices and barristers’ chambers, and from there into the courts and tribunals, where either the legality or the merits of decision-making has been able to be tested. 1.30 Similar opportunities for ‘public interest’ litigation in the United States spawned a concerted effort from the lawyers to find suitable techniques, procedures and funding by which litigation could be developed and encouraged.54 These techniques included: law firms taking on public interest litigation operating as non-profit-making charitable organisations to whom gifts of money are tax-deductible (the Sierra Club Legal Defense Fund, Natural Resources Defense Council and Environmental Defense Fund operate this way); limitation of fees by traditional law firms for taking on public

interest cases; the support of no or low profit margin public interest cases by traditional commercial work in law firms; and the creation of associate groups of lawyers interested in undertaking public interest cases so as to provide a central ‘clearing house’ to direct environmental and other cases to lawyers where the work could not have been taken on by private law firms on a prepaying basis (either for financial reasons, or because representation of such clients might cause embarrassment to a firm’s traditional clientele). Australian legal firms have also responded by taking on suitable public interest cases for reduced fees or on a no-win, no-fee basis, though much public interest environmental law work is directed to the Environmental Defender’s Office (EDO).55 The EDO is an independent community legal centre specialising in public interest environmental law, staffed by qualified lawyers, and funded mainly through sponsorship, and government and community grants and individual donations. Some of the most important and significant cases in Australian environmental litigation have progressed through the involvement of EDOs. EDOs also produce [page 18] informative publications on different aspects of environmental law and the legal system; and run conferences, seminars and workshops, often at a local community level. The Productivity Commission report on Access to Justice Arrangements (2014) confirms that while court action may be seen as the central focus of the justice system, community legal education, legal information (including self-help kits) and minor advice help to better equip people to use the law effectively.56 Funding for all EDOs, however, is often difficult and uncertain, particularly since the EDOs may seek to litigate against the very governments that provide them with funding. The federal government, for example, initially made it a condition that EDOs should not use federal funding directly to support litigation, but use that source of their funding to engage in community education, dissemination of information and responses to government initiatives and other submissions. Since 2014, however, all federal funding to EDOs has been cut entirely. In New South Wales legal aid used to be a significant source of funding for running public interest environmental cases, but this has been withdrawn since 2013. As a backlash to the New South Wales EDO’s involvement in assisting community groups, including farmers, to resist the coal seam gas industry, the New South Wales government then slashed EDO funding through the Law Society’s Public Purpose Fund,

threatening the very existence of the EDO in New South Wales. A classic case of ‘shoot the messenger’ rather than ‘listen to the message’. The Productivity Commission, on the contrary, has argued that there are strong grounds for the legal assistance sector to receive funding to undertake strategic advocacy, law reform and public interest litigation, including in relation to environmental matters.57 1.31 A further barrier to the involvement of more lawyers, argued by Boer, is the restrictive Code of Legal Ethics, which recognises only a duty to the client and the court. Boer argues:58 The reliance on the relatively narrow code of legal ethics may have been valid a decade ago, but … it is no longer valid today. The concept of sustainable development and what it implies in economic, political and ecological terms, demands that all of us should consider the broader implications and effects of our work … if professional groups working in the environmental field, including lawyers, are to take the injunctions of Our Common Future seriously, there would appear to be a case, and strong case, for the development of a broad code of ethics which incorporates not only the usual obligations, but includes an obligation to the ‘environment’ itself.

Boer then goes on to suggest how a code of ethics incorporating the concept of sustainable development can be applied to and by lawyers working in both the public and private sectors, and in educational institutions, and concludes: [page 19] It is only by continuing to challenge the accepted paradigms of the development ethos (ie, that ethos which does not take into account the philosophy of sustainability), by whatever ethical and legal means available, that lawyers will be able to extend the boundaries of environmental law in order to ensure that the principles of sustainable development are expressed in the legal realm, which will in turn have significant effects in the economic, political and finally the ecological realm. In short, what I am arguing is that there is a role for environmental law in formalising and implementing the vital links between ecology and economics – and that it is the role of the environmental lawyer to ensure that this occurs.

1.32 It is not just domestic lawyers who have a role to play in environmental protection, of course. The increasing realisation that environmental problems are of global origin and that all nations must pursue common goals and strategies to reverse the decline ‘will require the skills of international lawyers, first bringing problems into clear focus and then translating good intentions into coherent measures of concerted action’.59 The resulting law enshrined in international treaties inevitably percolates through to influence or direct Australian national policy and law.60 1.33 In addition to new causes of action created by legislation, lawyers have also become much more involved in ‘preventative legal medicine’; assisting

corporations to meet their legal obligations, for example, through the introduction of environmental management systems (EMS) and environmental auditing.61 In recent times, those very firms that are engaged by what Nader called ‘established interests’ are also likely to have lawyers specialising in this branch of the law, imparting advice on compliance with regulatory standards and avoidance of exposure to liability under the new environmental laws.62 1.34 Courses in environmental law, at undergraduate and postgraduate level, are now being taught in most universities, and not just in law schools, but increasingly in environmental science, engineering and other disciplines. There is an Australian Centre for Environmental Law (ACEL at ANU),63 an Australian Centre for Climate and Environmental Law (ACCEL at the University of Sydney)64 and a Centre for Climate Law and Policy (CCLP at ANU).65 There is an Environmental Law Reporter, a Queensland Environmental Practice Reporter, a Local Government and Environmental Reports of Australia series of law reports, an Environmental and Planning Law Journal, Local Government Law Journal, and The Australasian Journal of Natural Resources Law [page 20] and Policy; and environmental law associations have been established in every state and territory and at a national level.66 Truly, this discipline, environmental law, has surely come of age.67

The development of environmental law 1.35 After several decades of environmental legal development, how then can we measure success? And where to next? It is important to remember that merely looking at the words of legislation does not give a true indication about how the legislation is implemented and enforced and therefore how successful it is. Neither does a successful legal challenge to a project necessarily mean that that project will not go ahead. Apart from the fact that an ‘unlawful’ project can always be redesigned and presented again for approval, parliaments can always legislate to overcome the effect of ‘inconvenient’ court-based decision-making, whether on the merits or in law. As we shall see, considerable discretion is built into Australian environmental law; the true measure of success therefore can only be distilled by evidence taken directly from what is happening out there in ‘the environment’.

Ryan,68 for example, has warned that we cannot measure success in terms of volumes of legislation, prosecutions undertaken or orders issued. Perhaps the most obvious way to measure success lies in analysis of State of the Environment Reports (SOEs) that are required by legislation in most states and at Commonwealth level to be published every three to five years.69 Although such documents generally use data that is out of date when published, and are often incomplete, reliant as they are on governmental goodwill to release the necessary information, they do provide some measure of progress. Taken over a period of years, they can indicate gains, losses and trends, and help to inform government policies and priorities. These would indicate, for example, some improvements in air and water quality over the years, but continuing losses of native vegetation and biological diversity. Clearly, just ‘having’ law is not enough; everyone must be vigilant about implementation and enforcement issues, and about driving the policy agenda that leads to the creation of environmental laws. [page 21] As we shall see throughout this book, considerable challenges still remain in devising appropriate responses (legal and otherwise) to environmental problems, and in dealing with environmental issues in an integrated and coordinated manner. But thanks to education at all levels, more and more people are rising to these challenges. It is still an exciting time to be an environmental legal practitioner, student, academic or commentator.

1.

For an excellent account of the history of environmental concern in Australia see Bonyhady, The Colonial Earth, The Miegunyah Press, Melbourne University Press, Melbourne, 2000.

2.

For definitions of ‘environment’, see Chapter 2.

3.

See Preston, The Environment and its Influence on the Law. Available on the NSW LEC website at .

4.

See Preston, ‘Administrative Law in an Environmental Context: An Update’ (2007) 15 AJ Admin L 11.

5.

For an interesting and comprehensive account of the growth of environmental law in New South Wales, see Ryan, ‘Did We? Should We? Revisiting the 70s’ Environmental Law Challenge in NSW’ (2001) 18 EPLJ 561.

6.

23 Hen 8c 5.

7.

27 Hen 8c 18.

8.

The development of environmental awareness, and legislative responses, in Australia is set out in Preston, ‘Environmental Law 1927–2007: Retrospect and Prospect’ (2007) 81 ALJ 616.

9.

In the United Kingdom, the Anglers’ Co-operative Association was formed in 1948 by a barrister expressly for the purpose of taking legal action to combat the increasing pollution of Britain’s waterways. Since that time, it has handled well over 1000 cases with a very high success rate,

including 12 or so court cases. 10. Houghton Mifflin Co, Boston, 1962, republished 2002. 11. For example, Midnight Oil and Redgum. The ex-lead singer of Midnight Oil, Peter Garrett (who has legal qualifications), has served as president of the Australian Conservation Foundation (ACF), and was the Federal Minister for the Environment in the Rudd Labor government. 12. See . 13. See further Chapter 5. Lord Wilberforce commented in ‘The Law; Prose and Poetry’ (1969) 43 ALJ 414 at 419, that there is all the difference in the world between the sort of general, humanistic resolutions, in which international bodies are so prolific ‘and a tight document prepared by lawyers in well-thought out and practical terms’. 14. Since then, Murray Wilcox QC (now Justice Wilcox), Hal Wootten (formerly Justice Wootten) and Peter Garrett, Midnight Oil’s ex-lead singer and previous federal Environment Minister, who has legal qualifications, have taken on this role. 15. ‘Problems in Conservation’ [1975] 1 UNSWLJ 317. 16. D Ruckelshaus, ‘The Australian Government’s Role’, paper presented at the Seminar on Environmental Law, AGPS, Canberra, 1974, pp 7–8. 17. ‘Conservation and Government: Towards an Understanding of Roles’ (1974) 5 Search 241. 18. Landau and Rheingold, Environmental Law Handbook, Ballantine, New York, 1971, ‘Introduction’. 19. Kramer, ‘Open Society, its Lawyers and its Environment’ (1989) Journal of Environmental Law 1 at 1–9. 20. Kramer, ‘The European Experience: Half-time Environmental Lawyers’ (2001) 18 EPLJ 249. 21. The current Chief Justice of the Land and Environment Court of NSW, Justice Brian Preston, for example, first built up a practice as a barrister specialising in environmental law. 22. ‘English Law: The New Dimension’, Pt IV, The Challenge of the Environment, Stevens, London, 1974. 23. ‘The Concept of Environmental Law — The New Zealand Law — An Overview’ [1975] NZLJ 631. 24. ‘The Role of the Courts in Environmental Law’ (1982) 25 Crim LJ 304. 25. ‘In Memoriam William O Douglas’ (1980) 8 Ecol LQ 405. 26. See his judgments in Australian Conservation Foundation v Commonwealth (1980) 28 ALR 257 discussed in Chapter 19; and Commonwealth v Tasmania (1983) 46 ALR 625 discussed in Chapter 5. 27. See Chapter 19. 28. See Justice Bignold, ‘NSW Land and Environment Court — its Contribution to Australia’s Development of Environmental Law’ (2001) 18 EPLJ 256. 29. See Preston, ‘Jurisprudence on ecologically sustainable development: Paul Stein’s contribution’ (2012) 29 EPLJ 3. 30. See Chapter 11. 31. See Chapter 8. 32. See Chapter 8. 33. See Chapter 20. 34. The operation of the court is governed now by its Statement of Purpose, a type of self-imposed quality standard: see .

35. See C W Pincus, ‘Alternative Dispute Resolution’ (1988) Australian Law News 20. 36. Kirby, ‘The Future of the Judiciary’ cited in Stewart, ‘Environmental Risk Assessment: The Divergent Methodologies of Economists, Lawyers and Scientists’ (1993) 10 EPLJ 10 at 13. 37. See Stewart, note 36 above, at 12. 38. Christie, ‘Toxic Tort Disputes: Proof of Causation and the Courts’ (1992) 9 EPLJ 302. 39. Bazelon J in Ethyl Corp v EPA (1976) 426 US 941 cited in Oakes, ‘The Judicial Role in Environmental Law’ (1977) 52 NYULR 498. 40. Sax, ‘Defending the Environment’, Vintage Books, New York, p 69. 41. See Chapter 22. 42. ‘The Judicial Role in Environmental Law’ (1977) 52 NYULR 498 at 512–14. 43. Fisher, ‘Science, the Environment and the Law in New Zealand’ (1984) 1 EPLJ 295. 44. The much-publicised Wesley Vale pulp mill in Tasmania, for example, failed because without at least a 12-month study into wind and wave patterns in Bass Strait, the behaviour of toxic effluents discharged from the mill could not confidently be predicted. 45. See, for example, Asher v Melbourne Water (General) [2009] VCAT 1079 (computer modelling to predict water storage levels depending on different stream flow scenarios); Environment Protection Authority v Tyco Water Pty Ltd [2005] NSWLEC 453 (predictions of quantities of discharges of polluting matter). 46. See Director-General, Department of Planning v Epacris Pty Ltd (2006) 147 LGERA 372. 47. See Chapter 8. 48. ‘The Appropriateness of Dealing with Scientific Evidence in the Adversarial Arena’ (1986) 3 EPLJ 313 at 315. 49. Christie, ‘Toxic Tort Disputes: Proof of Causation and the Courts’ (1992) 9 EPLJ 302 at 313. 50. The advantages of specialist courts over courts of more general jurisdiction are set out by Preston, ‘Operating an Environment Court: The Experience of the Land and Environment Court of New South Wales’ (2008) 25 EPLJ 385. 51. See Chapter 19. 52. See Chapter 21. 53. See further Chapter 22. 54. See Macbeth, ‘The Response of the Bar to Environmental Law in the United States’ (1975) 1 Earth LJ 5. 55. See . 56. Overview, page 2. Available at . 57. Access to Justice Arrangements Report (2014), page 2. 58. Boer, ‘Our Common Future; the Report of the World Commission on Environment and Development: Implications for Environmental Law’, paper delivered to the International Bar Association, 1989, pp 15–16. 59. Sir Ninian Stephen, ‘The Growth of International Environmental Law’ (1991) EPLJ 183, 185. 60. See Chapter 5. 61. There are various types of environmental audit, but they commonly cover compliance with existing regulations, impact prediction, and testing, verification and adjustment or improvement of management systems. Increased penalties for poor environmental management and pollution have

led to fresh incentives for the evaluation and improvement of environmental management techniques: see Buckley, ‘Environmental Audit: Review and Guidelines’ (1990) 7 EPLJ 127. 62. See Chapters 20–21. 63. See . 64. See . 65. See . 66. Further details can be obtained from the National Environmental Law Association, . NELA publishes the National Environmental Law Review quarterly. There is also an Environment and Planning Law Association of NSW: ; while state law societies usually have an environmental law section. 67. Fisher et al, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 JEL 213 at 214 state, ‘According to environmental law scholars, environmental law as an academic discipline has spent the last 20 years coming of age. The maturing of it as a scholarly enterprise has been eagerly awaited and predicted but adulthood has never arrived. Environmental law scholars still perceive that the best is yet to come. The stubborn persistence of this perception of enduring immaturity signifies the need for environmental lawyers to take a harder look at, and talk more about, what they do, how they do it and why they do it’. 68. Ryan, ‘Did We? Should We? Revisiting the 70s’ Environmental Law Challenge in NSW’ (2001) 18 EPLJ 561. 69. See .

[page 23]

Chapter 2 Environmental Law: The Social and Legal Context Introduction 2.1 The purpose of this chapter is to explore the influences that impact on the making, implementation and interpretation of environmental law. ‘Social context’ includes political and economic influences. Matters that impact on policymakers encompass both legal and non-legal sources. Legal influences come from the existing rules and principles of common law and international law, while non-legal influences include the social context in which the law operates and which it is intended to serve. The making of environmental policy is also influenced by the findings and advice that emanate from scientific investigation and analysis of environmental issues, and by lobbying from non-government organisations such as environmental and business groups. Environmental policy is often a heady mixture of all of these, often competing, influences.

Governance and law 2.2 In Australia, as throughout the rest of the world, the development of the law is inevitably shaped by the system of governance adopted by our nation. Our Western style of government — capitalist parliamentary democracy — was inherited from our British forebears, and consequently our legal system reflects our desire to protect the social values associated with this form of government. As the High Court of Australia commented in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 at [49]: Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone’s words, ‘socially derivative and non-autonomous’. As Professor Honoré has pointed out, it is axiomatic that ‘all laws are laws of a society or group’. Or as was said earlier, in Paton’s Jurisprudence, ‘law is but a

result of all the forces that go to make society’. Law and custom arise out of and, in important respects, go to define a particular society. In this context, ‘society’ is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs.

After settlement, Australia inherited the existing common law and legislation of the United Kingdom. The common law is that body of law declared and developed by the courts of law over centuries; legislation, also known as statute law, is the law embodied [page 24] in an Act of Parliament. Both forms of law exist side by side, unless and until an Act of Parliament abolishes or modifies the common law.1 2.3 The purpose of the common law is first and foremost to recognise and protect interests in private property, particularly, for the purposes of this book, land and the natural resources that may be found on land. In our common law system, the Crown is the source of all title to land. Sovereignty2 over land in Australia was originally claimed on behalf of the British Crown, and settlers in Australia therefore derived their title to land from the Crown. Throughout the centuries, the monarch has traditionally rewarded loyal subjects (indeed, ‘bought’ their allegiance) by grants of land, which in feudal times represented the most important access to wealth, status and power. Since feudal society was effectively under the control of those who owned land, namely the Crown and nobility, it was they who created the courts and appointed the judges. It should be no surprise to learn therefore that the common law was shaped principally to protect the interests of private landowners. For centuries, the acquisition of land has been relied on not only as a form of economic and political protection for the landowner’s family, but also as a means of developing, shaping and sometimes protecting the local environment. In the modern day, ownership and possession of land and natural resources remains a primary source of wealth and influence. The attitude of the common law to the superior rights of the private landowner is not therefore hard to understand. ‘For environment a traditional lawyer reads property. Establish ownership or possession and the armoury of the English legal cupboard is yours to command.’3 2.4 When framing environmental policy, and translating that policy into law, it is frequently necessary to confront the long-held notion that ownership of land carries with it the right of the landowner to do whatever he or she wishes on that land. This expectation developed because the common law approach placed no constraints on the right of the landowner to develop the land and access natural resources upon it. Because the principal source of

wealth and power in society related to the value of the land, the common law saw no need to regulate the private landowner, who could be trusted to look after the value of the land precisely because their own interests depended upon it. So long as the landowner did not unreasonably interfere with their neighbour, then they were free to do whatever they wished on their own land. Environmental legislation has been introduced precisely because of the inability or reluctance of the common law to effectively recognise the environmental values of land,4 as distinct from its property values. Rights to develop land, access natural [page 25] resources or clear land of native vegetation, for example, are all now constrained by legislative initiatives that have no corollary at common law. Understanding the common law is therefore an essential prerequisite to understanding environmental law. The common law is explained in Chapter 3.

The doctrine of the separation of powers 2.5 Effective parliamentary democracy depends on a separation of functions between the powers of the legislature (parliament); the executive or administration (government agencies); and the judiciary (the courts). Entrust all functions to one entity and you end up with a dictatorship! In our system of governance, therefore, parliament makes the law, the executive implements the law, and the judiciary enforces the law. Although some positions (such as a member of parliament who is also a minister) have a foot in two camps, the functions of that person in each case are clearly defined. Application of the doctrine thus ensures that the law is administered and enforced by entities other than those who made it. This assists to deliver two important principles of democratic governance — transparency and accountability — that are the foundations for proceedings for judicial review of administrative decisionmaking, described in Chapter 22. 2.6 A good example of the doctrine at work is the case of Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108, where a defence to a charge of committing a nuisance5 by polluting a landowner’s source of domestic water supply, which relied on a licence for the disputed activity being given by the New South Wales Environment Protection Authority (EPA), was summarily dismissed by the court. The plaintiff had a right in law to take water for domestic purposes.6 The doctrine of the

separation of powers means that only the legislative arm of government (that is, parliament) can create, modify or remove legal rights. The EPA, as part of the executive, had no power to effectively take away Mrs Van Son’s legal right to take water by the simple expedient of issuing a licence. A licence is an executive tool of management, not a law.7 Only a statute could effectively have taken away Mrs Van Son’s legal rights.8 [page 26] This means in practice that the holder of an executive licence that confers, for example, a right to develop or emit pollution into the environment, cannot do so without due regard to other people who might be affected by the activities carried out under the licence. Unless common law rights have been modified by statute, then the licence will have no impact on them. The extent to which a law affects established legal rights is a matter of interpretation for the judiciary.9

The Crown 2.7 The Crown is an important institution in Australian law. Ownership and possession of all land and natural resources in Australia (subject to native title)10 derives from the Crown, and title to land and resources that have not been transferred to private owners remains vested in the Crown. The Crown, as a concept, is really the embodiment of the people and institutions of democratic governance of a state or of the Commonwealth, as represented formally by the Governor-General of Australia and governors of the states. The Crown therefore is not the same as government. The government effectively looks after and manages Crown resources on behalf of the people, through the departments and agencies of government; for example, those that manage forests and national parks, allocate water and other natural resources, and control pollution. Governments come and go but the Crown, as an institution and holder of property, remains inviolate. Most, if not all, environmental legislation is expressed to bind the Crown, which means that the institutions of government must comply with environmental laws. This is necessary, first, because in law the Crown is not bound by legislation unless specifically or by necessary intent the Crown is so bound;11 second, because if the Crown were not bound it would leave vast areas of Australia outside the regime of environmental control and management devised for private landholders and, as a matter of policy, it is

essential that the Crown is bound by the same rules (though not necessarily in the same way). Today there is, therefore, little argument about whether the Crown is bound by environmental legislation; there is, however, much argument about whether the Commonwealth Crown should be bound by state legislation.12

Native title 2.8 Until the decision of the High Court of Australia in Mabo v Queensland (No 2) (1992) 175 CLR 1, it had always been assumed that, under the common law of England as received into Australia, the Crown enjoyed absolute ownership of all lands in the colony, and that therefore all rights to land were derived from the Crown. This notion had been built on the assumption that, when settled, Australia was [page 27] effectively terra nullius; that is, the land belonged to no one — a questionable fiction recognised under international law that was widely used by British colonialists to deny the existence of Indigenous peoples, their social structures and their laws and customs. The High Court in Mabo rejected terra nullius as a basis for denying Aboriginal entitlement to land at common law, and held that a form of native title could survive colonisation until extinguished by an exercise of sovereign power by the Crown. In other words, on settlement, the Crown did not necessarily acquire full beneficial title to land, but did acquire radical title; that is, the ability, by subsequent acts of sovereign power, to extinguish native beneficial entitlements.13 Extinguishment would occur by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title; for example, by a grant of freehold title to others,14 or by dedicating or reserving the land for other uses such as roads and other public works, or by legislation that showed a clear intention to affect native title rights and interests.15 Where such a declaration, appropriation or use was still consistent with the continuing concurrent enjoyment of native title over the land, however (for example, reservation as a national park or grant of grazing leases), then native title would not be extinguished.16 2.9 The extent of rights of native title will be ascertained according to the laws and customs of the Indigenous people who make a claim. Native title can be extinguished if the clan or group ceases to acknowledge those laws or

customs from which title is derived. On the other hand, the traditional rights and interests that may be recognised are not necessarily frozen in time; customs and laws may grow or change, but still represent a continuation of traditional activities.17 2.10 Mabo naturally sparked a great deal of political and legal debate, particularly in relation to the legal validity of past Crown grants of title and permits to access land and natural resources; the entitlement of Aborigines and Torres Strait Islanders to receive compensation for interferences with their enjoyment of their traditional lands; the management of natural resources; and mechanisms for determining the existence and extent of rights of native title.18 The Commonwealth government responded to Mabo by enacting the Native Title Act 1993 (Cth).19 The main objects of the Act are to: recognise and protect native title; [page 28] establish a mechanism for deterring mining claims for native title; and validate past acts such as grants of title and permits that may have been invalid because granted without regard to the existence of native title rights, and therefore potentially infringing the Racial Discrimination Act 1975 (Cth).20 2.11 Any finding of the continuing existence of native title is significant to environmental law because of the different regimes that may be applied to the management of the land and its natural resources by Aboriginal landholders.21 Indeed, it has been held subsequent to Mabo that native title to natural resources can exist independently of any connection to land.22 Where native title rights to harvest living natural resources are upheld, the extent of this right is not, however, likely to extend to commercial harvesting and sale; either because the native title holders did not traditionally engage in commercial practices,23 or because, if they did, the right has been abrogated by statute. In Commonwealth v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25 at [87], the court reiterated that: ‘The right to take fish for commercial purposes cannot survive the enactment of laws which prohibit the unlicensed taking of fish for commercial purposes.’24 Such rights are likely to be restricted to the enjoyment of ceremonial and subsistence usages.25

2.12 The onus is on a native title claimant to prove the claim — not an easy task, since exercise of the claimed rights must be shown to have continued without interruption, and without extinguishment by the Crown, up to the present day. As the Full Court of the Federal Court said in Moses v Western Australia [2007] FCAFC 78 at [292], quoting the primary judge: The issue is whether the communities in occupation of the claim areas or part of them at sovereignty have maintained a connection with the land or waters by observing, as far as practicable, traditional laws and acknowledging traditional customs of their predecessors. This will be examined by taking the rights and interests earlier found to be presently exercised and considering in the case of each one whether such right or interest was exercised by that community at sovereignty.

[page 29] Because of the extent to which the Crown has ‘interfered’ in land and natural resources management over decades, it is notoriously difficult to establish continuing native title, particularly exclusive title. In Commonwealth v Yarmirr [2001] HCA 56; 184 AJR 113,26 for example, the applicants claimed native title over the sea and seabed surrounding Croker Island. The extent of the rights claimed extended to controlling access to tidal waters by others for fishing and hunting and the management of natural resources in the area. The court held that, although native title rights could be recognised in offshore areas, and although there was ample evidence of a continuing exercise of traditional rights in the waters in question, the claim essentially applied to Aboriginal people, and that claims to exercise exclusive rights to natural resources could not be upheld as against white people, who did not generally understand what the customs required, and who had, therefore, not been prevented from passing through the area. The right to control natural resources depended on the right to control access; and when this claim failed, so must the claim in respect of exclusive management. In any case, the recognition of exclusive rights was also prevented by international obligations to permit the passage of ships; by common law rights of public navigation and fishing; and by regulation of commercial fisheries by legislation. 2.13 The question as to what extent legislative control of natural resources might extinguish native title rights to traditional hunting and gathering27 was raised in Yanner v Eaton (1999) 105 LGERA 71. The appellant, whose claims had been denied in earlier proceedings in the Court of Appeal in Queensland, had used a traditional form of harpoon to catch two juvenile estuarine

crocodiles in the Gulf of Carpentaria area of Queensland. Under relevant Queensland law, it was an offence to take such animals without a permit, which the appellant did not have. That same legislation declared that all fauna was to be regarded as the property of the Crown. The respondent asserted that this meant that the Crown gained full beneficial ownership of fauna in Queensland, and that therefore any existing native rights to fauna must have been extinguished. On appeal, the High Court carefully assessed what was meant by this statutory declaration in favour of the Crown, a majority concluding that the true purpose of the regulation had been to establish a royalty regime, not to take property over wild animals for all purposes.28 Those rights were less than the rights of full beneficial, or absolute, ownership; the claimed right had not been extinguished and was subsequently protected by the Native Title Act.29 This legislation has since been replaced with the Nature Conservation Act 1992 (Qld), which declares that property in natural and cultural resources in protected areas30 and in protected animals and plants31 lies with the State. [page 30] The Native Title Act 1993 (Cth) s 211 provides that a law that ‘prohibits or restricts persons’ from fishing or gathering ‘other than in accordance with a licence, permit or other instrument granted or issued to them under the law’ does not prohibit or restrict the pursuit of that activity in certain conditions where native title exists.32 In Dietman v Karpany [2012] SASCFC 53, a majority of the Full Court of the Supreme Court of South Australia held that a native title right to fish had been extinguished by a statutory right to take fish subject to restrictions on the taking of undersized fish. The substantive effect of this legislation was to place all persons, including Indigenous persons, under the regime created by the statute.33 However, in the High Court, Karpany v Dietman [2013] HCA 47, this finding was reversed, the court holding that the relevant legislation, the Fisheries Management Act 2007 (SA), did not prohibit or restrict the applicants, as native title holders, from gathering or fishing for abalone in the waters concerned where they did so for the purpose of satisfying their personal, domestic or non-commercial communal needs, and in exercise or enjoyment of their native title rights and interests. Traditional hunting and gathering, and use of natural resources for ceremonial pursuits, is in any case often preserved by legislation.34 The High Court also declared in Western Australia v Ward (2002) 191 ALR 1 at 113 that:

… unlike the fauna legislation considered in Yanner v Eaton, the vesting of property in minerals was no mere fiction expressing the importance of the power to preserve and exploit these resources. Vesting of property and minerals was the conversion of the radical title to land which was taken at sovereignty to full domain over the substances in question no matter whether the substances were on or under alienated or unalienated land.

In this instance, therefore, native title claims were held to be defeated. 2.14 Although native title claims are difficult to make out, because the Crown has extended its control over all but the most remote parts of Australia, and extended its reach over most aspects of natural resources management, a surprising number have been held to succeed or partly succeed.35 And neither is litigation the only way to establish native entitlements; many are determined by mutual agreement, even after litigation, as in Ward. It is clear, however, that even if native title to resources can be made out, this will not prohibit appropriate management control over those resources; regulation is not inconsistent with title. As the High Court said in Yanner v Eaton (at 83): … regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists. No doubt, of course, regulation may shade into prohibition36 and the line between the two may be difficult to discern.

[page 31] Native title rights are not likely therefore to inhibit decision-making about appropriate management; although of course the participation of, and discourse with, native peoples in developing policy and before making important decisions is a vitally important, and often legally required, precondition to management planning.37 Indeed, initiatives for joint management of land and natural resources that involve significant Aboriginal cultural heritage38 are likely to be far more effective in the long run than relying on native title claims to deliver exclusive control. Indigenous land use agreements (ILUAs), for example, can be negotiated and registered separately to any native title claim, covering such topics as Aboriginal agreements to development, compensation and how Aboriginal interests will coexist with others.39

Aboriginal land rights 2.15 Native title is not the only way in which native peoples may gain access, particularly exclusive access, to natural resources. Grants in fee simple made under Aboriginal land rights legislation may also have this effect. In

Northern Territory v Arnhem Land Aboriginal Trust (2008) 236 CLR 24, the High Court held that a grant in fee simple made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) conferred a right to exclude from the inter-tidal zone within the boundaries of the grant other persons, including those holding licences to fish granted under the Fisheries Act 1988 (NT). This led to a process of negotiated agreement with the Northern Territory government about access to those waters and their management.40

Overcoming private rights: the vexed question of compensation 2.16 The governmental approach to environmental management and protection has had to be applied in the context of a social system, supported by the common law that placed few restrictions on the exploitation of natural resources by private landowners. Environmental legislation, of course, now effectively makes natural resources management the business also of government, with a consequent potential to restrict access to, and impose management requirements on, the economic use and development of those resources. [page 32] Naturally, there are bound to be tensions between the previously unregulated private interests and government regulators acting in the public interest, tensions that often manifest themselves in demands for no regulation and deregulation or, failing that, compensation. Translating environmental policy into environmental law, however, inevitably means overcoming rules of common law that landowners should be free to exercise their proprietary rights within the boundaries of their own properties. While some intrusions into private rights have been successfully made without compensation, most notably in the areas of land use or environmental planning and pollution control, it remains true that the most significant environmental problems facing Australia today have also proved to be the hardest for governments to tackle because they force regulators to confront the traditional rights of private landowners; and trying to effect change without compensation is politically very difficult. 2.17 Town and country or urban planning succeeded because it addressed significant social rather than environmental problems; reforms reflecting increased environmental concerns were grafted on later. However, attempts to curb degradation and destruction of natural resources on private land — for

example, clearance of native vegetation, land degradation, salinity and loss of biodiversity — have historically proved difficult to devise, implement and enforce. As will be discussed in Chapter 3, water and fisheries reforms have also had to grapple with the difficulties inherent in modifying or removing common law rights and statutory entitlements that over the years had come to be regarded as de facto property rights. The creation of entitlements to water that carry all the hallmarks of a right of property, and separation of these from rights of property in land, under the National Water Initiative (NWI),41 was necessary to overcome the common law rule that licences are not transferable (see 3.16 and following), and also to deliver water management reform that would not be strangled by arguments about compensation for lost opportunities. 2.18 Since many of today’s environmental problems have been caused by the decisions of the past, when landowners and resource users were often encouraged to exploit and manage resources in ways that have now proved to be unwise, or at least unsustainable, many see strong equitable arguments in the proposition that society as a whole should bear the financial penalties associated with change rather than that individuals should be asked to shoulder alone this heavy burden on behalf of society as a whole.42 The argument that, since the functioning of a capitalist society is effectively based on the economic value of property rights, including statutory entitlements, any adverse dealing with those rights should be compensated, carries a very strong political message, if not a legal one. So, for example, when the South Australian government in the 1980s wished to limit the clearing of native vegetation throughout the state it found that it could not do so politically — although it could do so legally — without paying [page 33] out tens of millions of dollars in compensation for lost opportunities. This legislative entitlement was replaced in 1991 with an arrangement stipulating that financial assistance should be linked to entering into a heritage agreement that provides for management of native vegetation or other natural resources on the land.43 Compensation for clearance restrictions has been expressly rejected in other states, although it surfaced again in Queensland when the Queensland government called on the Commonwealth to compensate Queensland farmers for the restrictions placed on them, effectively holding up the implementation of clearing controls for quite a long time.44

2.19 Another argument in favour of compensation is that without such security, private interests may be less willing to take risks; for example, in conducting exploration for minerals and gas deposits,45 or investing in infrastructure for delivery of water or for commercial fishing. For this reason legislation commonly provides limited compensation where rights of exploration or extraction have to be suspended or removed,46 but not usually where they simply expire.47

Compensation for environmental restrictions 2.20 Acquisitions of property are compensable by law: see 2.28. However, if mere restrictions on land use were compensable then it would become either very expensive, or practically impossible, to implement policies and laws for environmental management. As Gray has said, ‘The progress of civilised society would effectively grind to a halt if every minor regulatory act of the state provoked an immediate entitlement to some carefully calculated cash indemnity for the affected landowner’.48 Most commentators agree that, in general, governments should not provide financial assistance to resource users to meet the costs of environmental compliance.49 Environmental compliance should be part of the normal costs of ‘doing business’. Compensation for regulatory restrictions is sometimes justified, however, on grounds of equity, to encourage efficient investment, or to enable transition to new standards of environmental care. It may be argued then that in such cases compensation [page 34] should only be offered for a transitional period as an equitable means of bringing about a rapid and irreversible transition from unacceptable to more preferred management practices.50 The South Australian example in relation to clearance of native vegetation, given above, can be viewed in this light: automatic compensation terminated with the repeal of the Native Vegetation Conservation Act 1985 (SA). 2.21 Another important consideration is that if irreversible losses are to be avoided, landowners need positive incentives to manage wisely. If, for example, farmers discover that remnant vegetation on their property contains a rare or endangered ecosystem, then they may have a strong financial incentive to fail either to report it or act to protect it.51 The Productivity

Commission warned in 200452 that legislation banning clearance of native vegetation had serious design flaws that could lead to ineffective and inequitable outcomes, and policies that did not engage landholders would ultimately fail. Economic incentives, rather than regulation and compensation, applied through property agreements, for example, may redress the balance.53 2.22 Governments have also introduced structural adjustment schemes to more directly ‘compensate’ landowners for environmental restrictions, although such schemes have no legal imperative to provide ‘just terms’ compensation. In ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51, which concerned New South Wales legislation that had effectively reduced the plaintiff’s water entitlement by replacing an existing bore licence with an aquifer access licence, underpinned by an offer for ‘structural adjustment’, it was conceded in evidence that the structural adjustment payment would not be equivalent to ‘just terms’ compensation. In Spencer v New South Wales Minister for Climate Change, Environment and Water [2008] NSWSC 1059, the plaintiff had been offered a structural adjustment payment to purchase his property, which was affected by restrictions on clearance of native vegetation. Spencer sought an order to declare the offer invalid, because, among other reasons, the offer was manifestly unreasonable. The court held that the offer for the property, being based on market value, was adequate. The plaintiff’s claim was, in reality, that the offer did not adequately compensate for the loss of business opportunities brought about by the restrictions on clearance of native vegetation. The court did, however, make some caustic comments about the nature of the statutory scheme: The ‘unfairness’ in this case is that government has legislated in a way that renders the otherwise legitimate activities of Mr Spencer to be such that they are no longer viable as a business. Having done so, government then offers to purchase the property at a value that is necessarily less than the value that could be obtained if the prohibitions were not in force. If one takes an overall approach, there is no doubt that Mr Spencer is

[page 35] under a special disadvantage. The special disadvantage arises from the combined effect of valid legislation promulgated by the legislature that, by other legislation, provides for a compensation or assistance package to farmers, affected by the first legislative scheme, on a basis which does not provide compensation for the effect of the first legislative scheme.54

Rothman J then went on to make some more general comments about the impact of environmental restrictions, imposed in the ‘public interest’ on

private individuals, and whether those individuals should be expected to carry the burden of that public interest without adequate compensation: … the overall effect of the different pieces of legislation seems grossly unfair and unconscionable. … it is an extremely disheartening and sad occasion that a person, whose life and resources have been placed into rural property for the purposes of conducting a grazing and farming business, has been required to resort to this action. … Governments, not courts, make judgments about political policy relating to what, within reason, is for the benefit of the community. Mr Spencer does not dispute that the objects of the conservation policies adopted in the agreement between the Commonwealth and New South Wales are, at one level, for the benefit of the community. The Federal and State Governments have entered into a scheme to improve the environment and, in so doing, improve the lot of other rural and other proprietors. Nevertheless, they have done so at the expense of Mr Spencer. While all members of society must accept that there will be restrictions on their activities for the ‘greater good of society’, when those restrictions prevent or prohibit a business activity that was hitherto legitimate, because of the area in which it is operating, and assistance is offered which does not fully compensate for the restrictions imposed, society is asking Mr Spencer, and people in his position, to pay for its benefit. Nothing in the foregoing is intended as a criticism of either the current State or current Federal Government. These schemes were implemented by previous Governments both Federal and State, with bipartisan support. Nevertheless, it is a most unfortunate aspect of the operation of the scheme that a person in Mr Spencer’s position is effectively denied proper compensation for the restrictions imposed upon him by a scheme implemented for the public good. As earlier stated, ultimately that is a matter for government.55

2.23 Although regulation still remains the backbone of policy responses to environmental issues, it is being increasingly recognised that a combination of voluntary and regulatory techniques that encompasses both inducements and coercion is probably the optimal mix for balancing both private and public interests.56 As Gray [page 36] says, in the end the debate about compensation boils down to the question: ‘Just how minutely may government “control land without buying it”?’57 2.24 Where land management unreasonably interferes with others, it is easier to resist calls for compensation. Many planning decisions taken in the broad public interest, for example, affect private rights without compensation;58 and restrictions on emissions of polluting effluent are not compensated under the law because the common law has never recognised any right of one private landowner to unreasonably interfere with the property rights of another. However, where rights of natural resources management that do not affect other landowners are modified, restricted or removed, then claims for compensation are more difficult to resist. It could be argued that the public should be expected to pay for the future denial of existing rights currently being exercised in a lawful manner.

In Tasmania, for example, landowners who are refused certification for a forest practices plan because of anticipated effects on threatened species, or where the plan is conditional on protection of threatened species or threatened native vegetation communities, may apply for compensation; but the landowner is not entitled to compensation unless ‘the relevant conservation determination has the effect of requiring the landowner to exercise a higher duty of care for the conservation of natural and cultural values on the relevant land than is required under the Forest Practices Code’.59 In other words, this provision satisfies the principle that compensation should only be payable where a landowner is expected to do more than is normally required. On the other hand, it might also be argued that protection of threatened species and ecosystems is a normal condition of ‘doing business’ that should not be viewed as imposing abnormal standards of care and therefore should not be compensable. 2.25 The real problem with creating expectations that any intrusion into common law or statutory rights in the pursuit of environmental policies will be compensated is that governments will not be able, or will not want, to make sufficient money available to fund the environmental program and therefore the objectives will not be realised. 2.26 The political necessity to provide compensation can, of course, also lead to parliaments, as well as courts, reinterpreting existing rights in order to accord compensation in circumstances where otherwise it might not be strictly available. A licence or permit is not a right of property, and therefore revocation should not attract compensation.60 The Fishing and Related Industries Compensation (Marine Reserves) Act 1997 (WA), however, which provides compensation for modification or loss of ‘authorisations’, includes many examples of licences and permits within [page 37] the term authorisation.61 This reflects the perceived political necessity of attaching rights of compensation to withdrawal of entitlements that would not otherwise be compensable. To avoid arguments about whether compensation for modification or removal of ‘licences’ is payable, legislation may also expressly deny such relief.62 The tendency of modern resources legislation to create entitlements as a form of property does, however, force legislatures to consider the issue of compensation carefully before committing to particular policy outcomes, and to address the circumstances in which compensation will or will not be payable directly in the body of the legislation63 rather than leave it to the courts to interpret later.

2.27 The psychological and political attachment to compensation appears to have been overcome, however, at least as regards lost opportunities. For example, except in Queensland, recent restrictions on clearance of native vegetation have been introduced without schemes for compensation, and restrictions on development of listed heritage properties do not attract compensation. In place of provision for compensation have come schemes for financial assistance for resource maintenance and works. So, for example, property owners may now apply for government grants for undertaking land management and protection or heritage restoration, claim various forms of tax and rate relief, and enter into property agreements and covenants with financial benefits attached.64 The Commonwealth government has been keen to fuel the voluntary approach to natural heritage conservation by making millions of dollars available from the partial sale of Telstra to fund natural resources and heritage restoration and management projects through the auspices of the Natural Heritage Trust, and, more recently, through Caring for Our Country and the National Landcare Programme.65 Market-based, or economic, instruments providing for financial assistance are likely to prove far more attractive in designing future government policy than purely compensatory approaches.

Compensation for acquisitions of property 2.28 The courts adopt a presumption in interpreting statutes that parliament does not intend to modify or remove property rights without clear words or necessary intendment. Private rights are not abrogated by a statute unless the intention to do so is clearly stated.66 It was said by Kirby J in the High Court in Durham Holdings Pty Ltd v New South Wales (2001) HCA 7 at [28] that such a presumption rested on [page 38] the imputed aspiration of the law to attain, and not to deny, basic precepts of justice; though, like any presumption, this can be rebutted by clear words to the contrary.67 The Commonwealth Constitution clearly stipulates that laws of the Commonwealth that effect an acquisition of property must do so on just terms.68 This provision is discussed in greater detail at 5.32. Although state legislation generally provides for compensation for acquisitions of land and interests in land,69 it may not provide for just terms compensation for acquisition of other forms of property;70 and as there is no common law right

that would support such a claim,71 rights to compensation will therefore depend upon either statutory construction or voluntary payments by governments implementing policy initiatives such as schemes for ‘structural adjustment’. 2.29 In the absence of any other statutory intent, the first task in establishing a claim for compensation is to characterise the nature of the entitlement being ‘acquired’ as property. The concept of property denotes a sense of permanence and security,72 by contrast to a permit or licence that is revocable at any time. The legislative description of the entitlement, however, is not conclusive; the court will seek to discover the true nature of the arrangement rather than the title given to it. A characterisation or description of the nature of an entitlement granted under legislation as a ‘licence’, therefore, may not be conclusive of the legal nature of the interest actually granted. 2.30 In Commonwealth v WMC Resources Ltd [1998] HCA 8, for example, the High Court interpreted, from the nature of the rights given, that petroleum exploration permits granted under the Petroleum (Submerged Lands) Act 1967 (Cth) had all the hallmarks of a right of property. The question then was whether they had been ‘acquired’, thus triggering rights to compensation: see 5.32–5.33. In Rashleigh v Environment Protection Authority (2005) 138 LGERA 310, the Supreme Court of the Australian Capital Territory held that the refusal of an application for a licence to take water from underneath the plaintiff’s land amounted to an acquisition of ‘property’. Sterilisation of those rights effectively meant that the territory’s rights in the water were freed from the appellant’s rights to take that water from his own land, and therefore there had been an acquisition entitling the plaintiff to compensation. On appeal, Environment Protection Authority v Rashleigh [2005] ACTCA 42, the Court of Appeal, reversing this decision, said at [11]: ‘On a careful review of the authorities it seems to us that, at common law, an owner or lessee of land, while they have a right to access water flowing below that land, does not have property in [page 39] that water’; and also (at [18]) that: ‘the regulatory regime established by the Water Resources Act requiring a landowner to obtain a licence to operate a bore to extract groundwater would not amount to an acquisition of property, even if the nature of the landowner’s right to the water was proprietary’. In other words, a restriction imposed by a regulatory regime, in this case a

licensing regime, would not amount to an ‘acquisition’ even if a licence were refused.73 2.31 The approach of the Australian Capital Territory Court of Appeal in Rashleigh has effectively been confirmed by the High Court in ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51.74 In this case, the majority of the court held that a reduction in volumes of water allocated by aquifer licences, which had replaced old-style bore licences, did not amount to an acquisition of property. There can be no acquisition unless some identifiable and measurable advantage is derived by another from or in consequence of the replacement of the plaintiffs’ licences or reduction of their entitlements. The plaintiffs’ rights under the bore licences did not ‘return’ to the state upon cancellation of those licences. The state gained no larger or different right. Three justices, however, did accept that the licences that were cancelled were a species of property and therefore capable of being ‘acquired’; while Heydon J, dissenting, held that indeed the licences had created property rights that had been acquired without just terms compensation, which could not be delivered by the ‘structural adjustment payments’ that had been offered. Three other justices concluded that, in the circumstances, it was not necessary (because there had been no acquisition anyway) to determine whether the bore licences ‘were of such an insubstantial character as to be no more than interests deafeasible by operation of the legislation which called them into existence’ per French CJ, Gummow and Crennan JJ at [80]. 2.32 The corollary to all this is that unless procedures for compensating a modification or removal of rights are included in a statute, then the courts may prefer either a construction that does not allow those rights to be unduly affected, or a construction that characterises those ‘rights’ as proprietary in nature so that statutory provisions providing for compensation can be applied. In other words, legislative provisions enabling public authorities to invade or erode existing rights and privileges should be construed strictly in favour of the individual.75 The courts often see themselves as providing essential protection to the rights of the individual against over-zealous use of governmental powers. 2.33 In South Australian River Fishery Association v State of South Australia [2003] SASC 174, the Supreme Court held, at first instance, that fishermen who were effectively banned from certain fisheries contrary to a previous agreement and the licensing regime that governed those fisheries, were entitled to reasonable notice of such restrictions and adequate compensation. The minister had offered ‘ex gratia’

[page 40] compensation, but this had been rejected as inadequate. The court interpreted the history of dealings in the fishery, including conferment of a power of transfer and the open-ended nature of the interests granted, as indicative of an approach by government that supported the treatment of those licences as designed to give security to the stakeholders, and therefore more in the nature of a conferment of interests in property rather than mere licences. On appeal,76 this decision was reversed. As Doyle CJ said (at [65]) the primary judge appeared ‘to have treated the licence and rights pursuant to the licence as analogous to property rights under the general law’. His Honour continued (at [75]), that, however, while: I do not dispute that the licence and associated rights may be regarded as a valuable form of property: see Kelly v Kelly (1990) 64 ALJR 234 and (1990) 92 ALR 74; Pennington v McGovern (1987) 45 SASR 27, [86] it is difficult to see why the same reasoning (that the scheme of arrangement had created permanent rights) would not apply to a licence in any scheme in which licences are renewable and transferable, and in which the licence gives the right to carry on a business for profit. The licence holder in any such scheme, or a person who purchases a licence in such a scheme, is in the same position as the licence holders in respect of the fishery. Any such licensee holds a licence which has a value that reflects the ability to earn income with the licence, and the ability to sell the licence. I cannot see why the introduction of transferability gives rise to an implication of permanence, or why someone who enters a scheme in which licences are transferable should be able to argue that such an implication should be drawn.

In other words, no ‘property’ had been acquired, and no statutory intent could be found that would entitle the holders of these essentially permissive rights to claim compensation. Whether property has been ‘acquired’ is discussed at 5.32.

The social context: framing environmental policy 2.34 In essence, environmental law is the almost inevitable result of determining environmental policy; the one follows the other almost as inevitably as night follows day. The reason for this is simply that if government wishes environmental policies to be enforceable, then they must be translated into environmental law. Government has no legal power other than that conferred on it by law; so if environmental policy is to be implemented and enforced then government regulators and managers must be given powers by law to do whatever is necessary to carry out the purposes of the governmental scheme. Governments can, of course, rely on persuasion,

economic or ‘market-based’ incentives and voluntary behaviour, rather than regulation, to deliver environmental policy;77 but when enforceability is an issue (which it always is), environmental policy must be translated into environmental law. [page 41] Gaining a ‘legal licence’ to operate, though, by conferral of a government approval of some sort, may not necessarily result in acceptance of a project or activity by the wider community (a ‘social licence’) that encapsulates society’s broader expectations. It has been said that society’s expectations in relation to use of land and other natural resources is the achievement of environmental and social justice, in three senses: distributive justice (sharing benefits and burdens); procedural justice (how decisions are made) and justice as recognition (who is valued and given respect and recognition).78 Traditional economic analyses may be deficient in adequately recognising issues of equity and distributive justice, as well as failing to acknowledge non-market values of natural resources.79 It is also clear that traditional economic values struggle to capture values that have no immediate social utility or are ‘intrinsic’ values; although at the very least the ‘value’ of the environment must be at least as much as the total ‘economic value’.80

The influence of science 2.35 Of all the influences that determine environmental policy, none is more compelling than science. Science is everywhere in environmental policy formulation and legal responses. Without it there would be no Convention on Climate Change or Kyoto Protocol; fresh outbursts of ozone depleting substances would still be attacking the ozone layer; hazardous substances would be freely available for use and disposal; pollution would be far more prevalent; and threats to biodiversity would remain unrecognised. Ever since Rachel Carson81 discovered the flow-on effects of pesticide contamination to higher levels in the food chain, science has been informing and influencing environmental policy and decision-making. 2.36 Research science can be divided basically into three classes. The first is research that is undertaken for its own sake, either because an environmental problem is suspected or acknowledged, and the causes and remedies need to be identified;82 the second is research that is required to fulfil government priorities for action, which may be informed by the first type of research, or

may need to be undertaken to deliver government policy agendas, such as natural resources management reforms;83 the third [page 42] is research connected with regulatory enforcement, such as analysis of water samples to determine the presence of pollutants in unauthorised concentrations.84 As Macrory has said, ‘scientific understanding will remain an essential underpinning for most types of environmental standards’.85 The first two are examples of proactive research; the third is essentially reactive, though all can end up influencing policy reform processes. Science is also important in providing evidence in legal cases. Parties to civil enforcement actions,86 arguing merits appeals,87 and conducting or defending prosecutions,88 often call scientists as ‘expert witnesses’. Indeed, the court itself may appoint expert witnesses.89 Naturally, the evidence of experts will be instrumental, decisive even, in reaching conclusions about environmental disputes. The influence of science is also particularly obvious in the implementation of a number of important strategies for natural resources management and decision-making: determining triggers for the application of the precautionary principle;90 determining the status of native wildlife as ‘threatened’;91 assessing mitigation measures to reduce impacts of development on biodiversity;92 providing the factual basis for predictions of environmental impact in EISs;93 and determining suitable standards for pollution regulation and control.94 2.37 Scientific advice, of course, is also very important for informing international policy and legal development. Both governmental and independent organisations of scientists engage in the provision of such advice. The Intergovernmental Oceanographic Commission (IOC) is an example of a United Nations sponsored organisation (specifically UNESCO),95 and so is the Intergovernmental Panel on Climate Change (IPCC).96 The International Council for Science97 is an example of a non-government organisation that has worked with international agencies addressing climate change. The Wentworth Group of Concerned Scientists is one organisation that acknowledges the contributions that science can make to public debates about environmental policy.98 [page 43]

Non-government organisations (NGOs) 2.38 The role of non-government environmental organisations (NGOs) is important to the creation and enforcement of domestic law, and of particular significance in the creation of international environmental law. Apart from the lobbying influence that NGOs exert in the international arena, NGOs may be permitted observer status at important international negotiations (for example, those on whaling or climate change), and may thus take the opportunity to lobby delegates to take particular positions. NGOs also take part in the creation of environmental laws; the most important in this regard is the World Conservation Union (IUCN or International Union for the Conservation of Nature),99 which has cooperated with international agencies in work, for example, on the Convention on Biological Diversity and other international treaties. The IUCN, also has a Commission on Environmental Law,100 which boasts a worldwide membership of environmental lawyers.101 Within Australia, NGOs perform important functions in raising community awareness and putting political pressure on governments in relation to policy formulation, implementation and enforcement.102 For example, the international campaign organised by the Wilderness Society in the early 1980s, over the proposed Gordon-below-Franklin dam in Tasmania, in which over 1000 protesters were arrested at the site of the proposed dam, convinced the then federal government led by Bob Hawke to enact legislation outlawing construction of the dam.103 Thirty years later the ‘power of protest’ is being shown again by the success of the Lock the Gate Alliance in opposition to coal seam gas and coal mining,104 which has succeeded in gaining a moratorium on new approvals and forced the New South Wales government to put forward a draft strategic land use proposal105 to try to accommodate the interests of both miners and protesters. 2.39 NGOs are frequently formed to fight specific issues, and in this role lobby governments and even initiate legal action; for example, over the extension of the runway at Sydney Airport;106 about logging operations in local forests;107 deepening a shipping channel in Port Phillip Bay;108 the removal of bats from the botanic gardens [page 44] in Sydney;109 a pulp mill in northern Tasmania;110 and local heritage issues.111 NGOs are now taking on the responsibility for lobbying in respect of policy on climate change, and undertaking court-based challenges to projects that have implications for climate change.112 NGOs are frequently asked to make

submissions on government policy proposals, sit on advisory committees, and respond to all sorts of invitations to make presentations about all manner of issues, which often seriously compromises the resources that these organisations have to respond to all these ‘initiatives’ without some assistance with funding, and leads to the well-understood problem of ‘burn out’ of key personnel. Nevertheless, community, as well as government, expectations of NGOs have seen recognition in the courts in the redefining of rules of standing that now take into account the legitimacy of NGOs seeking to enforce issues of public environmental concern. A few decades ago they would have been denied access to the courts as groups that had a ‘mere intellectual or emotional’ interest.113 NGOs contemplating legal action often use the services of the Environmental Defenders Office,114 a public interest law firm, to give advice, represent them, find willing lawyers who might give ‘pro bono’ assistance, or secure litigation funding from Legal Aid.115 Recently, EDOs have been targeted by reductions in government funding; a policy that ignores the advice of its own Productivity Commission, which recommends that there are strong grounds for the legal assistance sector to receive funding to undertake strategic advocacy, law reform and public interest litigation, including in relation to environmental matters.116. Business groups may also form ‘NGOs’, for the purpose of lobbying for particular outcomes for particular business or industry sectors. Restrictions on political donations attempt to ‘level the playing field’ with respect to this form of influence on policymaking117 and thereby avoid such lobbying degenerating into essentially corrupt activity.118

Tortious actions against environmentalists and protesters 2.40 Landowners and others with rights to exploit natural resources frequently attract protest action, to which they are entitled to respond by using tortious actions such as trespass. Nevertheless, a right of peaceful protest is widely regarded as a [page 45] fundamental freedom, or human right, and protest action119 has been an important form of environmental activism for environmentalists and other community groups over the last 40 years. The Franklin Blockade in Tasmania during the summer of 1982–83, during which some 1100 people were arrested

in protest action against the proposed Gordon-below-Franklin hydro-electric scheme, which would have flooded an area of World Heritage significance, is the most famous example; but there have been many others, ranging from interfering with logging or construction works to influencing shareholders or consumers. Legal issues surrounding direct activism frequently turn on whether environmental protesters, or sometimes those who seek to remove them,120 have committed criminal offences, and the targets of direct action frequently ask for police protection and urge courts to impose restrictive bail conditions that limit the chance of the protester returning to the protest site. While the legalities of protest action must be dispassionately evaluated by the courts, courts are also wary of the democratic implications of stifling traditional freedoms, such as rights of peaceful protest. The criminal law has not proved to be a significant deterrent to peaceful protest, because even where prosecutions are successful, penalties tend to be fairly low. Pursuit of costs in successful prosecutions may prove to be a greater deterrent. 2.41 Industries at risk of protest action have sometimes turned their attention to civil claims for damages against protesters, threatening actions ranging from economic loss to defamation. The purpose of such actions is undoubtedly to cause such stress to those being sued that they will take no further part in protest action, and to act as a deterrent to others. A successful legal outcome appears secondary.121 One example is the action brought in 2004 by Australian Wool Innovation against PETA, People for the Ethical Treatment of Animals, who were trying to persuade international retailers not to buy Australian wool: see Australian Wool Innovation Ltd v Newkirk [2005] FCA 290. The case alleged contraventions of s 45D (secondary boycotts for the purpose of causing substantial loss or damage) and s 45DB (boycotts affecting trade or commerce) of the Trade Practices Act 1974 (Cth); unconscionable conduct in contravention of s 51AA of the Act; the tort of conspiracy, and the tort of intimidation. After the respondents unsuccessfully sought to have the case [page 46] dismissed,122 the court found that prima facie breaches of the Trade Practices Act had been established.123 2.42 The most well-known example of legal action being taken against protesters is probably the Gunns 20 litigation, the case instigated by Gunns Ltd in 2004 against 20 organisations and individuals including Senator Bob

Brown and the Wilderness Society over the campaign against old-growth woodchipping in Tasmania: see Gunns Ltd v Marr [2005] VSC 251. The litigation claimed damages, including aggravated and exemplary damages, injunctions and costs for disruption of the plaintiffs’ businesses, allegedly caused by various tortious actions of the respondents. The torts relied on included interference with trade or business by unlawful means, wrongful interference with contractual relations, conspiracy to injure and defamation. After various revisions to the statements of claim,124 and refusals by the court to make documents under the control of the respondents available to the plaintiffs,125 the proceedings against many of the original respondents were discontinued, and the litigation has finally been brought to a close with the timber company agreeing to settle with the last four of the so-called ‘Gunns 20’.126 Both the PETA and the Gunns litigation seem to have had, as their main purpose, an intention to tie up the respondents in lengthy litigation, with consequent threats to their financial resources. Even where a party is successful in defending litigation, substantial costs will often be incurred that are rarely all recoverable from the losing party. Clearly, the hope is that such action could result not only in a form of punishment to the protesters, but also hit their financial resources and provide a deterrent to others contemplating similar protest actions. Whether organisations that use such tactics win any points for public relations is debatable. Tasmania, a jurisdiction that a long history of protest activity, has now enacted a remarkable and controversial Workplace (Protection from Protesters) Act 2014 (Tas). This Act, which is principally designed to reduce protest activities in relation to forestry and mining, stipulates fines for hindering or obstructing protected business premises of up to $10,000 for individuals, or up to four years imprisonment for protesters who commit a further offence.127

The media 2.43 The prime function of the media is to disseminate information, although there is no doubt that it also engages in setting, or influencing, public opinion. The extent to which either of these functions relies on objective fact is often debatable; though the media is as essential to public fact finding about environmental issues, domestically and globally, as law reporting is to finding out about the law. Universal journalism

[page 47] values are said to encapsulate the pursuit of truth, the valuing of objectivity, the principle of fairness and the practice of accuracy.128 It is not the function of this book to enter into a debate about whether these values are always apparent in media reporting. It has to be acknowledged, however, that without media exposure, NGOs would be less effective; community concerns about so many environmental issues would not have eventuated; and environmental policies and laws may well not have been devised.

Local government 2.44 Australia has over 550 local councils, the larger ones containing a population base that is larger than some of the states and territories.129 The importance of local government as a major influence on sustainable environmental management was recognised at the Earth Summit in 1992 by the inclusion of a chapter (Ch 28) on local government in the action plan Agenda 21: Because so many of the problems and solutions … have their roots in local activities, the participation and cooperation of local authorities will be a determining factor in fulfilling their objectives. Local authorities construct, operate and maintain economic, social and environmental infrastructure, oversee planning processes, establish local environmental policies and regulations, and assist in implementing national and subnational environmental policies. As the level of governance closest to the people, they play a vital role in educating, mobilising and responding to the public to promote sustainable development.

It was recommended in Agenda 21 that each local authority should develop its own ‘Agenda 21’ through consultation and consensus, and some Australian local government authorities (in general, the more well resourced) have responded to this challenge. When the Australian Local Government Association signed the IGAE in 1992, it also committed itself to pursuing the principles of ecologically sustainable development (ESD) through its decisionmaking processes.130 Legislation such as the Local Government Act 1993 (NSW) has since made this a mandatory requirement for all local government functions.131 The legitimacy of the role being played by local government in environmental management is recognised by the federal government,132 other commentators,133 and of course by the Australian Local Government Association.134 Local government has undergone a rapid transformation from being regarded simply as a works authority

[page 48] dealing with roads, rubbish and sewers, to an active and equal participant in the development and delivery of environmental management programs (EMPs), though funding to implement programs remains a contentious issue.135 Much of the legislation in this book is implemented, on a day-bybasis, by local government, either alone or in conjunction with state authorities.

Environmental rights as human rights 2.45 In some countries environmental protection is delivered more through human rights provisions in national constitutions than by specific legislation.136 The concept of constitutionally guaranteed human rights often extends to preservation of environmental quality. For example, the Constitution of the Republic of South Africa 1996 states that everyone has a right to an environment that is not harmful to their health or wellbeing, and that securing sustainable development, promoting conservation, and preventing pollution, are central to this right.137 The Constitution of the Philippines refers to protecting people’s rights to ‘a balanced and healthful ecology in accord with the rhythm and harmony of nature’.138 In Minors Oposa v Secretary of the Department of Environment and Natural Resources,139 this right was extended to as yet unborn generations that might suffer in consequence of unlawful logging operations. In India,140 the Supreme Court has declared that both the precautionary and the polluter pays principles are part of the law of India by reference to the constitutional mandate to protect and improve the environment.141 Remedies against pollution are often sought by reference to fundamental human rights.142 The European Court of Human Rights has also found that environmental degradation may constitute breaches of provisions of the European Convention on [page 49] Human Rights art 8 that declares respect for family and private life. Breaches143 of the Convention have been found, for example, in cases involving the impacts of fumes and contamination on nearby residents of a waste treatment plant;144 failure to inform local people about potential risks from a nearby chemical plant;145 airport noise;146 and road noise and vandalism.147

2.46 Australia, of course, in common with its United Kingdom ancestral heritage, does not have a Constitution that addresses human rights. The Constitution of Australia is a vehicle for delivering the infrastructure of federal government, not a document that guarantees fundamental rights and expectations. Fundamental rights and freedoms in this country are guaranteed more through the values inherent and practised in our parliamentary system of democracy, and through specific provisions of legislation — for example, conferring rights of public participation in environmental decision-making — than through any formal written constitutional guarantee or ‘Bill of Rights’. The United Kingdom, in fact, as a member of the European Union, has had to enact the Human Rights Act 1998, making the European Convention on Human Rights directly enforceable in British courts.148 A complaint about noise pollution from low flying aircraft has been upheld under the ‘respect for family’ provision of this legislation.149 In Australia, the Australian Capital Territory150 and Victorian151 governments have enacted human rights legislation that could conceivably borrow from some of the concepts adopted by interpretation of the European human rights provisions. In Smith v Hobsons Bay City Council [2010] VCAT 668, VCAT was asked to consider whether a condition of a planning permit requiring screening to prevent the applicant overlooking a neighbour, in the context of a planning scheme that [page 50] contained objectives, standards and guidelines about overlooking, was incompatible with the Victorian Charter of Human Rights and Responsibilities. The tribunal determined that any decision that properly considered all relevant planning considerations would represent a reasonable, proportionate and justifiable limitation on the right not to have privacy, family or home arbitrarily interfered with and would not be in breach of the Charter. The tribunal further expressed the view that it would be a rare and exceptional case where a planning scheme provision was not Charter compatible. The fact that such rights are not expressed in written form, of course, could lead to governmental excesses, though the courts are particularly vigilant in protecting the rights and freedoms traditionally associated with our unique style of parliamentary democracy. This protection manifests itself, for example, in court-based rules about procedures and standards for government decision-making, which include rights to be informed and rights to be allowed to make representations when legitimate interests and expectations are about

to be affected.152 Many environmental ‘rights’, such as freedom from unreasonable levels of pollution, are also delivered by the day-to-day administration of legislation. Rights to participation, information and access to justice (‘environmental democracy’) are seen as fundamental human rights at an international level,153 and environmental law in Australia delivers on these to a greater or lesser extent in all jurisdictions.154 The idea that human rights should include environmental rights may be given some impetus by the Dutch case of Urgenda Foundation v Dutch Government (Dutch Climate Case) C/09/456689 / HA ZA 13-1396 (2015).155 Article 21 of the Dutch Constitution imposes a duty of care on the State relating to the liveability of the country and the protection and improvement of the living environment. This provision does not stipulate precisely how this duty of care should be exercised. The court said that in order to determine the scope of the State’s duty of care and the discretionary powers in this respect that it was entitled to exercise, the court would consider also the objectives and principles of international and European climate policy. The answer to the question whether or not the State was taking sufficient mitigation measures against climate change in responding to this duty depended on many factors, with two aspects having particular relevance. In the first place, said the court, it had to be assessed whether there was ‘unlawful hazardous negligence’ on the part of the State. Second, the State’s discretionary power was relevant in assessing the government’s actions. The State clearly [page 51] has the discretion to determine how to fulfil its duty of care, but this is not unlimited: the State’s care may not be below standard. In the event, the court upheld the plaintiff’s claims, and required the government to take more effective climate action to reduce the Netherlands’ share in global emissions. This is the first time that a court has required a State to take precautions against climate change. Although compelling, however, this case should be treated with caution in other jurisdictions since it clearly turned upon aspects of the Dutch constitution and associated concepts of the duty of care.

Rights of nature: ethics and environmental law 2.47 Many people would agree that the natural world has an intrinsic right to exist and to evolve, a right entirely separate from its practical or potential use to the human species. In translating this ethic into environmental law, it has been suggested that this should result in rights for elements of the natural

world to bring court-based actions for protection, suitably represented by a ‘guardian’ who would bring proceedings on behalf of the natural entity.156 Such a concept found some support from Douglas J in the celebrated case of Sierra Club v Morton,157 but since then the idea has gone nowhere in practical terms. What has happened, however, is the increasing ability of NGO ‘guardians’ to gain access to the courts in their own right, through reform of the rules of ‘standing’, to challenge decisions and activities that might impact on the natural world.158 There is no doubt, however, that ethical values affect government policymaking, and environmental values are held in broad regard by society in Australia just as they are in most parts of the world. Ethical public values commonly fuel, for example, attitudes to animal cruelty,159 illustrated starkly by the acrimonious debate on battery hen farming,160 whaling161 and export of live animals,162 and the level at which environmental standards for performance are set;163 ‘environmental and social values, in particular, are not necessarily preformed or fixed but for many people emerge out of debate, discussion, and challenge as they encounter new facts, insights and judgments contributed by others’.164 Ethical values help to explain, for example, why, in terms of legislation, non-native wildlife is not accorded the same protection as native wildlife;165 [page 52] and why threatened species of native wildlife are accorded more protection than non- threatened species.166 2.48 The search for public values is commonly undertaken in Australia through mechanisms for public consultation, either mandated by legislation or voluntarily undertaken by government regulators, particularly in relation to ‘forward’ or strategic planning, as well as project-based consultation.167 Ultimately, however, balancing different values is a matter for politics.168 The courts too, though it is not their business to make policy, cannot remain immune from public expectations. Recognition of these public values or expectations has been responsible for the courts adopting a rather more conciliatory approach to demands for access to courts by NGOs in recent years;169 has been responsible for the uptake of principles of sustainable development in court-based consideration of disputes;170 and is to some extent reflected in increases in penalties awarded for infringements of environmental legislation.171 2.49 The Chief Justice of the Land and Environment Court of New South Wales has identified various aspects of regulation and access to justice that

could support a more ecocentric approach to law and policy:172 for example, the inclusion of intrinsic environmental values in the statutory objects of legislation; ensuring that these are relevant considerations in decisionmaking; making persons who wish to exploit or harm the environment carry the burden of proof; identifying environmental outcomes or standards that are not to be compromised or are to be achieved; and adopting procedures, standards and remedies that facilitate access to and deliver justice.

The public trust 2.50 Some commentators maintain that environmental decision-making and sustainable resource allocations should be subject to the principles of stewardship espoused by the doctrine of the public trust.173 Stewardship is a notion often aired in relation to management responsibilities of private landowners; the public trust as a doctrine, however, focuses on government responsibilities for proper management of public natural resources. The idea of the public trust is not new. It was developed in the law of the Roman Empire and bears a very close resemblance to our own conceptual ideals of public rights in the maintenance of environmental quality. The theory is really very simple: that natural resources such as rivers, the seashore, air, and wilderness areas are the common property of humankind, to be held by the Crown or government ‘in trust’ [page 53] for the common benefit and use of the public generally. This principle has partly survived the development of Anglo-Australian common law through the recognition of public rights over the seashore and tidal waters and, to a more limited extent, in the establishment of public parks and the protection of wildlife. However, the doctrine as a recognisably enforceable principle of law is really limited to the United States. 2.51 Professor Joseph Sax says that the idea of a public trusteeship rests on three related principles.174 First, that certain interests — like the air and the sea — have such importance to the citizenry as a whole that it would be unwise to make them the subject of private ownership. Second, that they partake so much of the bounty of nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status. And, finally, that it is a principal purpose of government to promote the

interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit. The adoption of such a principle in Australia would mean that individual state governments would not be able to sell off or lease Crown land, or license developments on that land, for purely private gain, unless it could be shown that some observable public benefit would ensue from the project, and that such benefit would more than adequately compensate for any notable diminution of previous public uses in that area. The acceptance of the public trust doctrine does not, of course, mean that no development on public lands can ever be carried out. It would be very unusual if any government-backed schemes could be shown to be totally bereft of public benefit. The trust doctrine simply demands a balance between what will be gained and what will be lost. Governments may claim to make such judgments already, of course, but acceptance of the public trust idea does at least give citizens the right to challenge governmental decisions affecting that trusteeship in a court of law. What is more, since common resources are treated as assets that belong equally to every citizen, then any individual, as ‘beneficiary’ under the trust principle, will have standing to enforce the trust.175 Particularly important has been the recognition, under this doctrine, that recreational and aesthetic interests are just as worthy of protection as more traditional economic and property rights. 2.52 In Australia, Meyer176 has described the doctrine as ‘submerged’, or ‘sleeping’, identifying a number of cases in which the language employed by the courts has been similar to the definition of public trust rights in the United States. Direct recognition of the doctrine has not, however, been forthcoming. It was rejected, for example, by Smithers J in Kent v Johnson (1973) 21 FLR 177. Counsel had argued in that case that there was a public trust in the Black Mountain reserve, Canberra, arising out of the declaration of that reserve as a public park, and as a result the government was bound to maintain the environmental quality of the area. The erection of a tower on [page 54] the hillside would injuriously affect the reserve and surrounding area. Smithers J, in summarily dismissing this contention, simply said, ‘I do not think there is any such trust or obligation upon the defendants arising out of the declaration of the reserve as a public park …’. The doctrine was revisited in Willoughby City Council v Minister Administering the National Parks & Wildlife Act (1992) 78 LGERA 19, where

the court accepted that there was a ‘public trust’ to protect and preserve national parks and use legislative powers to fulfil the statutory purposes of reservation. By 1997, Mason P in the New South Wales Court of Appeal was confident enough to declare that the concept had ‘belatedly re-emerged’,177 although experience since suggests this may have been a little optimistic. The doctrine has gained more traction in other Commonwealth countries.178 However, in a case involving unlawful pollution of waters in New South Wales it has been commented that a statutory licence to pollute cannot be regarded as merely a contract between the regulator and the licensee, because to do so would offend the notion of ‘public trust’ on which a licensee operates.179 This line of authority must now be doubted, however, following the preference expressed by Preston J in Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278 that describing a breach of a licence condition as breach of a public trust adds nothing to the characterisation or seriousness of the offence and there is no need to graft such a concept onto the nature of the statutory scheme. 2.53 The notion of government stewardship of resources, however, even if accepted in principle as a policy of management, has not really crystallised into an enforceable legal obligation. Neither has stewardship really gathered momentum as a notion in conferring obligations on private operators, although the increasingly accepted concept of ‘extended producer responsibility’ or ‘product stewardship’180 for product development is beginning to result in specific legal obligations based on stewardship.181 A related concept is the notion of a legal ‘duty of care’ for the environment or for biodiversity — a responsibility that can be met not by imposing legal obligations directly, but through the adoption of codes of practice and land management agreements, and through the issue of administrative orders to carry out positive action to treat the causes of environmental degradation.182 Imposition of more specific [page 55] affirmative duties on landowners, either directly imposed by legislation, for example to control noxious species,183 or arising out of relationships entered into by the landowner, such as negotiation of a property agreement,184 biodiversity offset185 or carbon trading arrangement,186 will also introduce notions of a ‘duty of care’ for the environmental assets the subject of such obligations.

Translating environmental policy into environmental law 2.54 Modern environmental law making is influenced by principles of construction, content and interpretation that reflect the inherent wisdom built up over centuries of practical application of legal concepts and principles in legal disciplines that have no obvious connection with environmental issues. In turn, the application and interpretation of environmental laws is also extending concepts devised by those other disciplines, confirming the flexibility of the law to respond to the demands of modern environmental problem-solving and reflect community expectations that the law will indeed measure up to the policy agenda. This book is replete with examples that demonstrate how the making and interpretation of environmental laws is influenced by constitutional law, torts, administrative law and criminal law in particular; and how in turn environmental law is influencing the further development of those disciplines.187 The task of translating environmental policy into environmental law falls to parliaments, responding to executive government initiatives and political bargaining, while the task of interpreting the meaning of legislative enactments is entrusted to the judiciary.

Legislation and legal instruments 2.55 In environmental law, statutes are used primarily to create government regulators, where none previously existed; create specialist courts or tribunals to hear environmental cases; give powers to government agencies to regulate activities that may impact on the environment and to manage natural resources; and provide for means of public participation, which includes responding to proposed plans, projects and activities, enforcing the law, and disputing environmental decision-making. Statutes also commonly authorise government agencies to create further rules that will assist them to carry out their functions, in the form of regulations or other types of ‘statutory instruments’; for example, instruments of management such as environmental planning or protection policies, which may well have a status as legal instruments, despite the somewhat misleading term ‘policy’.188 In addition [page 56] to legal instruments, government agencies may also publish guidelines,

practice notes, codes of practice and other advice, which may have to be interpreted to gauge their legal effects. A statute therefore provides a framework of legal principles; the detail is often fleshed out by regulations, other subordinate rules and non-legal advice statements. For example, in New South Wales, environmental planning is governed by the regime contained in the Environmental Planning and Assessment Act 1979 (NSW) (EPAA). This statute contains the fundamental principles that govern strategic environmental planning, development control and environmental assessment in the utilisation of land and other natural resources. Much of the practical detail of the statutory scheme and its administration is, however, contained in the Environmental Planning and Assessment Regulation (latest version 2000), several dozen state environmental planning policies (SEPPs), and over a hundred local environmental plans (LEPs), all of which also have the force of law. In addition, there are development control plans, planning guidelines and practice notes. Therefore, when considering questions of environmental planning one must consider not only the Act, but also the regulations and environmental planning instruments (EPIs) created under the authority of the parent statute, as well as non-legal yet practical advice that will assist in the interpretation and application of the legal components of the regime. 2.56 Although guidelines, codes of practice, practice and advisory notes, and most types of policies are generally not sources of law, there are exceptions and all environmental legislation must be carefully scrutinised to understand the legal status of the instruments being created. For example, although in Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108 a forestry code of practice was held by the court to be ‘aspirational’ — in other words, not a legal instrument — nevertheless codes of practice may be recognised as legal instruments in circumstances dictated by legislation, such as where they are deliberately recognised by government agencies and accorded formal status as legislative instruments.189 In Victoria, the Code of Practice for Timber Production 2007 mandates the production of forest management plans to set out detailed prescriptions for the conservation of native forest fauna, and mandates compliance with measures specified in action statements made under the Flora and Fauna Guarantee Act 1988 (Vic). It also requires the precautionary principle to be applied to decision-making. Clearly, this Code is intended to have legal, not just aspirational, effect.190, 2.57 Guidelines would generally be regarded as advisory only191. However, in Byron Ventilink Pty Ltd v Byron Shire Council (2005) 142 LGERA 215,

heritage guidelines were interpreted by the court as imposing mandatory requirements by virtue of [page 57] being linked to a ministerial authorisation.192 Where ‘policies’ set out standards for compliance, then clearly those aspects of the policy create enforceable obligations; for example, State Environment Protection Policies in Victoria.193 2.58 Executive orders194 and plans of management195 are also likely to be regarded as legislative in character. In Schwennesen v Minister for Environment and Resource Management [2010] QSC 81 at [35], the court opined that in determining whether an instrument is legislative or administrative in character, oversight by parliament, in the form of tabling and capacity for disallowance, is a strong indicator that a decision is legislative in character; though an absence of such a procedure is not fatal to its characterisation as legislative. The clear lesson here is that the description of an executive initiative is not a real indication of its status as a source of environmental law. 2.59 Once an instrument is characterised as executive, however, rather than judicial, it is not subsidiary legislation and therefore not reviewable by the courts. For example, in Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66, the Supreme Court of Western Australia ruled that exemption instruments, made by the Minister under the Fish Resources Management Act 1994 (WA) that allowed for a baiting program for white sharks to commence, were executive instruments not legislative, and therefore did not need to be published in the Government Gazette. It is important to note that where statutory duties are imposed by legislation on persons carrying out activities that are subject to regulatory control, then a party will not be able to contract out of such obligations by attempting to transfer them to other parties.196

The role of the judiciary 2.60 Where a dispute arises about how to interpret a piece of legislation, the issue can only be finally determined by referring it to a court for resolution. It is part of the doctrine of the separation of powers that an independent judiciary should determine questions of law, not the body that made the law.

One of the ramifications of Australia having a federal system of governance is that there exist two court hierarchies: one federal and one state. Federal courts deal with issues arising out of federal, or Commonwealth, law, while state courts deal with issues arising out of state law. The High Court of Australia, however, operates in both jurisdictions. In addition to hearing federal matters regarding interpretation of the Constitution, the court is also the ultimate court of appeal for all disputes, under [page 58] both federal and state law. Until 1986, there was an additional avenue of appeal to the Privy Council in London, which was traditionally the ultimate court of appeal for disputes from Britain’s external territories and colonies. This has now been abolished in all jurisdictions. The judiciary, of course, also applies principles of common law. It is important to appreciate at the outset that the body of law that is contained in the common law is not necessarily displaced or extinguished by an environmental statute; the statute has to be interpreted to gauge its effect on the common law. Frequently, an environmental statute will make no impact on the common law; but equally, it may effectively change centuries of legal tradition.197 2.61 Judge-made law depends on a system of ‘precedent’ whereby a superior court of law declares a certain principle of law to apply to a particular situation. All ‘inferior’ courts within that jurisdiction are then bound by the declaration of law made by the superior court. Courts will also generally bind themselves to a principle of law, at least until that principle can no longer be considered applicable, or just or fair in a given situation.198 Courts can ‘distinguish’ previous judgments by claiming that the circumstances in which an earlier authority was determined do not, or should not, apply to the instant case. In this way, judges continually refine the law and keep it up to date with modern social expectations.199 A decision of the High Court of Australia is the highest judicial pronouncement on a matter of law within Australia, and a decision of that court must be followed by all inferior courts within Australia unless a judgment can somehow be ‘distinguished’. 2.62 The system of precedent depends heavily on accurate reporting of judgments; after all, if decisions of judges are not officially reported, how would anyone know what is the law? There are a number of official (state and federal) and independent commercial law reporting services. In

environmental law, the Local Government and Environmental Reports of Australia (LGERA), published by Thomson Reuters, is the most useful because it contains relevant cases from all jurisdictions. In environmental law, the contributions of the judiciary are initiated through interpretation of statutes, application of principles of judicial review, and use of other common law principles that are relevant to enforcement and dispute resolution.

Interpreting environmental legislation 2.63 Environmental law is mostly legislation, which must be interpreted by the courts if any dispute arises. For example, the Environmental Planning and Assessment [page 59] Act 1979 (NSW) provides that an environmental impact statement (EIS) must accompany all projects that are either designated developments, or ‘activities likely to significantly affect the environment’. The regime provides a list of designated developments, but does not provide any indication as to what are ‘activities likely to significantly affect the environment’. Accordingly, in disputed cases, it has been the judges of the New South Wales Land and Environment Court and the Court of Appeal (NSWLEC) that have been called on to give some practical meaning to the words of this inherently ambiguous phrase.200 Legislation frequently defines the meaning of important words and phrases. But equally, it often does not. Where the legislation itself does not give any indication how words and phrases are to be interpreted, then the courts will generally fall back on familiar common law concepts in order to interpret legislation. Courts will assume, unless there is clear indication to the contrary, that if concepts understood at common law are not altered in any way by a statute, then parliament must have intended that the statute should be interpreted in accordance with principles of common law. So, for example, in interpreting statutory provisions that allow ‘persons aggrieved’ to undertake court challenges to federal decision-making, courts have traditionally interpreted such phrases as meaning persons who have common law interests to protect — in other words, property and economic interests — and who would therefore be ‘aggrieved’ if these recognisable legal interests were to be adversely affected. This has led to persons who could only

display an environmental interest in proceedings being described in one High Court case as persons who had an ‘intellectual or emotional interest’ in the subject matter, but unfortunately not a legal one.201 Only in the last decade or two have courts started to move out of this often inflexible mindset to encompass interests that would not be recognised at common law, such as environmental interests.202 This is an indication that courts really do try to keep up to date with legitimate community expectations. 2.64 In interpreting legislation, judges may be influenced by their own individual dispositions, and personal view of their role as a judge. This explains why judges may be either conservative or reformist in their outlook, and strict or liberal in their interpretations, giving rise to different judicial opinions about what was intended by a particular statutory provision. For example, a number of recent cases appear to have redefined the roles of decision-makers in using principles of sustainable development.203 In one case, Minister for Planning v Walker [2008] NSWCA 224, however, the New South Wales Court of Appeal reversed a Land and Environment Court (LEC) decision because it thought the LEC might have been a bit quick on the uptake of community expectations about climate change issues, though admitted that the situation might be different just two years later. [page 60]

Statutory aids to construction 2.65 Environmental statutes usually provide guidance as to their purpose and intent in a section at the beginning of the statute, referred to generally as an ‘objects clause’. This can assist not only judges, but also members of the public, and indeed the regulators themselves, to understand, in general terms, why the statute has been enacted and what it seeks to achieve. Indeed, legislation throughout Australia generally requires courts to prefer interpretations of statutes that promote the objects of legislation to those that do not. For example, the Interpretation Act 1987 (NSW) s 33 states: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

Similar provisions apply in other jurisdictions.204 A good example of how the objects of legislation can influence an interpretation of statutory powers and responsibilities under that legislation is Blue Mountains Conservation

Society Inc v Director-General of National Parks and Wildlife (2) (2004) 133 LGERA 406, where the court interpreted the objects of wilderness preservation as being inconsistent with an approval granted by the minister to use a wilderness area for filming a fictional movie. Again, in Von Hartel v Macedon Ranges Shire Council [2014] VSC 215 the Supreme Court of Victoria stressed that, consistently with the objectives of the Planning and Environment Act 1987 (Vic), a provision in a planning scheme that limits participation in land use decision-making should be narrowly construed.205 2.66 Although a grammatical or literal approach will usually be enough to discern the intent of legislation,206 where judges cannot readily discern the ordinary meaning of a provision in a statute, they may enlist the help of external aids, such as ministerial second reading speeches, international conventions. The Interpretation Act 1987 (NSW) s 34 provides: Use of extrinsic material in the interpretation of Acts and statutory rules (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

[page 61] (b) to determine the meaning of the provision: (i)

if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

This provision effectively means that judges may only refer to such extrinsic material if a provision is so ambiguous or obscure that discerning the true intent would be assisted by reference to such external aids. If the meaning that would otherwise be attributed to the statutory text — which may require consideration of the context including the general purpose and policy of a provision — is plain, extrinsic material cannot alter it. It is only when the meaning of the text is doubtful that consideration of extrinsic material might be of assistance.207 2.67 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue

(2009) 239 CLR 27 at [47], French CJ explained the process of statutory interpretation as follows: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

While commenting on the use of ministerial second reading speeches to help interpret the purpose of legislation, the High Court warned in Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [32] that ‘the words of the Minister must not be substituted for the text of the law’. The ‘clear meaning of the text’ may be obtained, of course, from a dictionary definition. In Minister for the Environment and Heritage v Queensland Conservation Council (2004) 134 LGERA 272, for example, the Federal Court of Appeal, in interpreting the meaning of the word ‘impact’, adopted the ordinary English meaning contained in the Oxford English Dictionary to determine the extent of the minister’s obligations in relation to environmental impacts from the construction of a dam.208 In Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48 at [2]–[4], Kirby J took a more liberal approach to interpretation, although the rest of the court took a more literalist approach: This ‘literal’ or ‘grammatical’ approach to interpreting statutory texts has gradually given way to an appreciation that legal interpretation is a more complex task. Whilst the starting point in interpretation must still always be the text, it is now appreciated that

[page 62] context and purpose are also vitally important. Further, this approach is not limited to cases where the text appears on its face to be ambiguous. A sub-species of this context and purpose rule is a principle of interpretation that arises where a contested text appears in a statute that has an apparently beneficial or remedial purpose. Where different literal interpretations of such a text appear to be available to the decision-maker, it is valid, and sometimes helpful, to identify the beneficial or remedial purpose discerned. The decision-maker should then endeavour (so far as the text allows) to adopt a construction that advances that purpose in preference to one that would frustrate or diminish the attainment of the apparently intended benefits and reforms. This beneficial or remedial reading principle is by no means new. It simply re-expresses, in the current age of enlarged legislation, a very old canon of interpretation that enjoins decisionmakers to address the ‘mischief’ perceived in the legislation. This is in contrast to upholding an interpretation that results in the legislation misfiring and missing its obviously intended mark.

Similarly, reference to external documents, for example planning

instruments, may be necessary to interpret the real meaning of governmental approvals such as development consents. 209 Definitions and concepts in environmental law are often deliberately cast widely (even vaguely) in order to allow government managers the flexibility to decide what is important and which tools to use to address particular issues. The meaning of such provisions is often referred to the courts for resolution; some examples are set out at 6.9.

Using principles of common law in dispute resolution 2.68 Although the common law has no direct role to play in environmental management (see Chapter 3) principles of common law frequently play a part in enforcement and resolution of disputes. Principles of judicial review — that is, the ability of a court to apply judicial standards for public sector decisionmaking (see Chapter 22) — have arisen through the traditional role of the courts in keeping government accountable and answerable for the powers entrusted to it by the legislature. Civil remedies for breaches of statutory obligations (see Chapter 21) encompass traditional common law remedies such as the injunction. Principles of criminal enforcement (see Chapter 20) have also been developed by the common law.

Merits review 2.69 Statutory interpretation and applying principles of common law are not the only functions of judges in environmental dispute resolution. Unlike ‘ordinary’ courts, the specialist environmental courts and tribunals, discussed at 2.72, also have what is known as a merits review or merits appeal function. Whereas ‘judicial review’ looks at whether an exercise of statutory power by government was exercised lawfully, merits review looks not at the lawfulness of the activity but its ‘merits’; that is, whether the decision is justifiable and acceptable, or even simply ‘good’ or ‘bad’. In exercising merits review, a court or tribunal is not undertaking legal interpretation or enforcement; [page 63] it is reassessing the decision made by the original decision-maker and considering whether to change it. Challenging environmental decisionmaking by judicial and merits review is discussed more fully in Chapter 22.

Matters of policy 2.70 One thing judges must be careful not to do, however, is make policy under the guise of legal interpretation or merits review. Policymaking is the domain of elected representatives of the people, not judges. Questions about the use and maintenance of natural resources, for example, often throw up difficult policy issues about sharing, exploitation and protection, and courts have consistently refused to be drawn into disputes about allocation and management of resources in the guise of judicial review.210 The role of the judge in such a dispute is to interpret what the legislature has decreed and the extent of the powers it has granted to others to make such decisions, not to impose policy solutions of the judge’s own making on the parties to the dispute. In merits appeals, although there is undoubtedly more flexibility given to a court or tribunal to make decisions that may impact more on policy, judges still have to be wary of the policy impacts of the decisions they may make. The determination of merits appeals must still be undertaken in the context and in light of the statutory and policy background, as set out by legislation and in relevant planning documents.211 For example, in one of the first cases to challenge a project because of anticipated greenhouse gas emissions, Greenpeace Australia Ltd v Redbank Power Co Pty Ltd [1994] NSWLEC 178, Pearlman CJ said of coal-fired thermal power stations: … whether they should be prohibited is, of course, a matter of government policy and it is not for the Court to impose such a prohibition. It is for state and national governments to take into account the competing economic and environmental issues raised by the enhanced greenhouse effect and to set policy in the light of those issues.

2.71 More recently, the current Chief Judge of the LEC has reiterated that: … courts have no function directly requiring societal adaptation to climate change or mitigation of its impacts; courts are not legislative rule-makers or general administrative policy-makers. Any role courts may play in relation to climate change will be indirect and as a consequence of exercising functions that are vested in them to adjudicate disputes before them.212

[page 64] In Ilic v City of Adelaide [2010] SASC 139, for example, the South Australian Supreme Court reiterated that a strategic planning instrument is not open to judicial review on grounds that the views of the decision-making authority as to the best way in which to facilitate sustainable development and protection of the environment are objectively mistaken. These are matters of evaluative social judgment that reflect matters of policy not law.

Nevertheless, the increasing recognition in state and local environmental planning and other strategic instruments of principles of sustainability sets a policy scenario that arguably allows courts more freedom to push the boundaries of concepts of sustainability in merits appeals, while recognising the relevant statutory and policy frameworks within which the discussion must take place.213 The only restraint on the court’s ability to canvass such issues is the availability of merits appeals, particularly for objectors to proposals.214

Specialist environmental courts and tribunals 2.72 One welcome feature of modern environmental law is the establishment of specialist environmental courts and tribunals, or divisions of tribunals, to hear disputes.215 The extent of jurisdiction of these bodies, however, varies widely throughout Australia. In some jurisdictions, specialist courts hear all forms of action,216 others only have merits appeals functions,217 while others hear both merits appeals and civil enforcement applications but have no criminal jurisdiction.218 The Land and Environment Court of New South Wales219 is staffed by Supreme Court judges; the Queensland Planning [page 65] and Environment Court and the South Australian Environment, Resources and Development Court (ERD Court)220 by District Court judges. All specialist courts and tribunals are staffed by lawyers but also by specialist commissioners or assessors, who hear merits appeals — experts in disciplines relevant to the issues dealt with by the court, such as planning, engineering and science disciplines. Preston221 has set out 10 advantages of a specialist environmental court: (1) having a comprehensive, integrated jurisdiction to deal with environmental matters by way of merits appeals, judicial review, criminal and civil enforcement; (2) bringing together in the one court, lawyers and non-legal specialists that creates a synergy for exchange of ideas; a ‘centre of excellence’; (3) facilitating inter-disciplinary decision-making by officers of the court with relevant expertise; (4) developing a specialised knowledge of environmental law and appreciation of environmental issues;

(5) enabling a holistic approach to be adopted to resolution of environmental matters; (6) developing innovative practice and procedure that facilitates access to justice; (7) being better positioned to develop innovative remedies and solutions to environmental problems; (8) having more opportunity to develop a coherent and consistent body of precedent and environmental jurisprudence; (9) being better positioned to deal with complex environmental cases; achieving efficiencies and reducing the costs of litigation; and (10) relieving backlog in other courts by removing environmental cases. To these advantages might be added the possibility of the court operating, as does the LEC, as a ‘multi-door courthouse’; that is, a dispute resolution centre offering intake services together with an array of dispute resolution processes under one roof to match the appropriate dispute resolution process to the particular dispute.222 These processes for dispute resolution encompass alternatives to formal court-based hearings and adjudication such as conciliation, mediation and neutral evaluation.223 Specialist courts and tribunals created by legislation are of course dependent upon, and limited by, their statutory jurisdiction. The hearing of a planning matter, for [page 66] example, before a specialist tribunal cannot become a forum for addressing all issues of social or community concern. Such tribunals are not investigative bodies, nor is it their job to set environmental or public health standards.224 On the other hand, restricting the jurisdiction of a specialist tribunal or court to a particular area of resource or environmental activity can result in that body being unable to take a holistic view of a matter brought before it. For example, the jurisdiction of the Queensland Land Court in relation to mining activities encompasses the Mineral Resources Act (MRA) and Environmental Protection Act 1994 (Qld) (EPA). In Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth — Brisbane Co-Op Ltd & Ors, and Department of Environment and Resource Management (2012) 33 QLCR 79 at [606-607] the Court opined: … jurisdiction under the MRA and the EPA to make recommendations for the project is effectively confined to the ‘mining activities’ or activities authorised under the MRA. As a

consequence of s.235(3) of the MRA, the Court has no jurisdiction or power to make recommendations in relation to activities involving the extraction or diversion of water. These activities will be authorised under another Act, namely, the Water Act.

It appears to me that this is an undesirable dichotomy in the Land Court’s jurisdiction and powers. The effect of the legislation is that two separate assessment and objection processes are established, one under the MRA/EPA and the other under the Water Act. Ultimately the Land Court hears any objections under the Water Act so there is a duplication of process. Further, those objectors who wish to protect their relevant interests under all three statutes are required to participate in two potentially extensive and expensive processes. It is possible, also, that inconsistent decisions may result. This is obviously undesirable for the effective administration of justice and the public interest generally. Dealing with the same constraint in Hancock Coal Pty Ltd v Kelly (No 4) [2014] QLC 012 at [117] and [121] the Court remarked: In my view, s 235(3) of the MRA must be strictly applied. It applies to circumstances where mining involves the taking and using of water, including the diversion of a watercourse, and perhaps, arguable, the diversion of underground water, but not to the interference with the flow of underground water under s 206(1)(b) of the Water Act. … It would appear nonsensical for this Court, as part of these proceedings, to be permitted to consider the question of, and consequences which flow from, interference with groundwater, but not consider any aspect or consequence which arises from the taking or diversion of groundwater.

Most of the cases referred to in this book have been determined by specialist environmental courts and tribunals.

1.

Where rules of common law conflict with statute law, then statute law will prevail. The reason for this is that in a constitutional democracy, statute law is enacted by a parliament composed of democratically elected members. By contrast, judges are appointed by government, not elected by the people. It is therefore logical that statute law should be regarded as the superior or sovereign form of law. The common law is discussed in Chapter 2.

2.

On the concept of sovereignty, see 4.25.

3.

Lord Scarman, ‘English Law: The New Dimension’, Pt IV, The Challenge of the Environment, Stevens, London, 1974, p 59.

4.

Environmental, or ‘non-market’ values are hard to grasp for traditional economics, upon which rights in property are founded. It has been argued that valuing the benefits and services that nature provides (ecosystem services) must depend on scientific analysis; see Productivity Commission, Staff Working Paper ‘Environmental Policy Analysis: A Guide to Non-Market Valuation’, (2014). Available at .

5.

For further discussion of the action in nuisance, see Chapter 3.

6.

This is a right that exists as an incident of ownership of land, either at common law or, more likely

today, by virtue of statutory conferment. For further discussion on rights in water, see 11.14. 7.

Although it may of course have a legal effect within the statutory scheme of management that creates licensing as an operational tool in regulating the environmental effects of controlled activities. The most common effect of holding, and operating within the terms of, a licence, is that the licence creates a statutory defence to a charge of committing an offence that would otherwise be committed if the licence had not been issued. In Van Son, for example, the licence provided the Forestry Commission with a defence to the statutory offence of committing water pollution under the (repealed) Clean Waters Act 1970 (NSW).

8.

A statute could, of course, declare that the issue of a licence would have the effect of limiting other common law or statutory rights; but since this would effectively give the executive power to modify laws, it is never likely to happen in a democracy that adheres to the doctrine of the separation of powers as a fundamental guiding principle of law making.

9.

See 2.60.

10. See 2.8. 11. Bropho v Western Australia [1990] HCA 24. 12. See 5.46 and following. 13. See generally Rogers, ‘The Emerging Concept of Radical Title in Australia: Implications for Environmental Management’ (1995) 12 EPLJ 183. 14. See Fejo v Northern Territory of Australia (1998) 156 ALR 721. 15. See Bodney v Westralia Airports Corporation Pty Ltd (2000) 111 LGERA 268. 16. See Wik Peoples v Queensland (1996) 187 CLR 1. 17. See Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58. 18. A selection of the voluminous commentary on this case includes: Nettheim (1993) 16 UNSWLJ 97; Crommelin (1993) 67 Law Inst J 809; Lumb (1993) 14 Qld Lawyer 15. 19. Declared constitutionally valid in Western Australia v Commonwealth (1995) 183 CLR 373. Consequently, legislation enacted by the Parliament of Western Australia that conferred rights that were less secure than ordinary communal or native title rights, was inconsistent with the Racial Discrimination Act 1975 (Cth) and therefore subject to the Constitution s 109: see Chapter 5. 20. The Native Title Act 1993 (Cth) s 24MD(2)(b) provides for the extinguishment of native title on just terms, so long as conditions are met that clearly seek to avoid racial discrimination: see Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20. 21. See Strelein, ‘Indigenous People and Protected Landscapes in Western Australia’ (1993) 10 EPLJ 380; Selnes, ‘Aboriginal Land Rights in Queensland and their Impact on Natural Resources’ (1993) 10 EPLJ 423; Lane, Brown and Chase, ‘Land and Resource Planning under Native Title: Towards an Initial Model’ (1997) 14 EPLJ 249; Tehan, ‘Indigenous Peoples, Access to Land and Negotiated Agreements: Experiences and Post-Mabo Possibilities for Environmental Management’ (1997) 14 EPLJ 114; Craig, ‘Native Title and Environmental Planning: Indigenous Land Use Agreements’ (2000) 17 EPLJ 440; Dorsett and Godden, ‘The Interaction of Planning Law and Native Title’ (2000) 17 EPLJ 374. 22. Mason v Tritton (1994) 34 NSWLR 572; Commonwealth v Yarmirr [2001] HCA 56; 184 AJR 113. 23. For example, Mason v Tritton (1994) 34 NSWLR 572. 24. See also Neowarra v Western Australia [2003] FCA 1402. See also Dietman v Karpany [2012] SASCFC 53, in which a majority of the court held that native title rights to fish had been effectively extinguished by a statutory scheme to prevent the taking of undersized fish. 25. See, for example, Sampi v Western Australia [2005] FCA 777 at [1146]–[1147].

26. And see Secher, ‘The Crown’s Radical Title and Native Title: Lessons from the Sea Part One — The Position before Yarmirr’ (2011) 35(2) MULR 523; ‘Part Two — Yarmirr and Beyond’ (2011) 35(3) MULR 1099. 27. See also English, ‘Terrestrial Hunting and Gathering by Aboriginal People in New South Wales: An Assessment of Law and Policy’ (1997) 14 EPLJ 437; Meyers, ‘Native Title Rights in Natural Resources: A Comparative Perspective of Common Law Jurisprudence’ (2002) 19 EPLJ 245. 28. In Walden v Hensler (1987) 163 CLR 561, the argument that an offence against the licensing provisions of this Act amounted to an offence against ‘property’ had also been rejected by the High Court. 29. The Native Title Act s 211 relevantly provides for preservation of certain native title rights and interests. 30. Nature Conservation Act 1992 (Qld) ss 61 and 62. 31. Nature Conservation Act 1992 (Qld) ss 83–87. 32. Karpany v Dietman [2013] HCA 47 at [2]. 33. Note, however, the dissenting judgment of Blue J that applied Yanner v Eaton. 34. See 14.64. 35. For further information about Native Title determinations see . 36. Extinguishment, by contrast to restriction, of a native title right may raise rights to compensation: see note 20 above. 37. See also Sneddon, ‘Aboriginal objections to development and mining activities on the grounds of adverse impacts to sites of spiritual significance: Australian judicial and quasi-judicial responses’ (2012) 29 EPLJ 217. 38. See, for example, Baird and Lenehan, ‘The Process in NSW Leading to Joint Management of Aboriginal Owned Land and the Register of Aboriginal Owners’ (2002) 19 EPLJ 277; Power, ‘Joint Management at Uluru-Kata Tjuta National Park’ (2002) 19 EPLJ 284; Godden, ‘Indigenous Heritage and the Environment: “Legal Categories are Only One Way of Imagining the Real”’ (2002) 19 EPLJ 258; Havemann et al, ‘Traditional Use of Marine Resources Agreements and Dugong Hunting in the Great Barrier Reef World Heritage Area’ (2005) 22 EPLJ 258. 39. For further information about ILUAs see . 40. For detailed commentary on this case see Labowitch, ‘Integration and Reconciliation of Social, Legal and Environmental Interests under Indigenous Land Rights Sea Claims’ (2010) 27 EPLJ 189. 41. See . 42. See Shepherd and Martin, ‘The Multiple Meanings and Practical Problems with Making a Duty of Care Work for Stewardship in Agriculture’ (2009) 6 Macquarie Journal of International and Comparative Environmental Law 191. 43. Native Vegetation Act 1991 (SA) ss 24 and 25. On heritage agreements, see 7.46 and following. 44. See further 13.24. 45. See Commonwealth v WMC Resources Ltd [1998] HCA 8. 46. See, for example, Offshore Minerals Act 2000 (SA) s 196; Natural Resources Management Act 2004 (SA) s 21; Fisheries Act 995 (Vic) Pt 10; Fisheries Management Act 1994 (NSW) s 34O; Mining Act 1992 (NSW) s 127; Fisheries Adjustment Schemes Act 1987 (WA) s 14G. 47. For example, Sustainable Forests (Timber) Act 2004 (Vic) s 27.

48. ‘Can Environmental Regulation Constitute a Taking of Property at Common Law?’ (2007) 24 EPLJ 161 at 164. 49. For example, Binning and Young, ‘Motivating People: Using Management Agreements to Conserve Remnant Vegetation’, Report prepared for the National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Research Report One, Canberra, 1997; Hajkowicz and Young, ‘An Economic Analysis of Cost Sharing Assessment for Dryland Salinity Management: A Case Study of the Lower Eyre Peninsula in South Australia’, Report to the South Australian Department of Primary Industry and Resources, CSIRO Land and Water, South Australia, 2000. 50. See Productivity Commission, ‘A Duty of Care for the Protection of Biodiversity on Land’, Canberra, May 2001. 51. Bowers, Incentives and Mechanisms for Conserving Biodiversity: Observations and Issues, CSIRO Division of Wildlife and Ecology, Canberra, 1994, p 13. 52. ‘Impacts of Native Vegetation and Biodiversity Regulations’, Report No 29, Australian Government, 2004. 53. See Farrier, ‘Regulation of Rural Land Use: Coercion or Consensus?’ (1990–91) 2 Current Issues in Criminal Justice 95. And on property agreements, see 7.46 and following. 54. At [63] and [64]. 55. And see Bone v Mothershaw [2003] 2 Qd R 600 (no right to be compensated for native vegetation clearance restrictions imposed by a local authority); applied in Scriven v Sargent [2014] QCA 133. 56. See Gunningham et al, ‘Reimbursing the Future: An Evaluation of Motivational, Voluntary, Pricebased, Property Right and Regulatory Incentives for the Conservation of Biodiversity’, Biodiversity Series Paper No 9, Department of the Environment, Sport and Territories, Canberra, 1996; Gunningham and Grabosky, Smart Regulation: Designing Environmental Policy, Oxford University Press, Oxford, 1998, Ch 5; see also Curran, ‘The Conservation of Biological Diversity on Private Property in NSW’ (2000) 17 EPLJ 34. And on market-based instruments, see 7.40 and following. 57. ‘Can Environmental Regulation Constitute a Taking of Property at Common Law?’ (2007) 24 EPLJ 161 at 163. 58. Although in Western Australia, the curious concept of injurious affection, that is, diminution of land values as a result of planning decisions, in this case a heritage scheme, does seem to survive: see Cornell v Town of East Fremantle (2003) 131 LGERA 20. 59. Nature Conservation Act 2002 (Tas) ss 41 and 41A. 60. Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151. For further discussion about the nature of property rights, see Chapter 3. 61. See also Marine Parks Act 2007 (SA) s 21; Fisheries Act 1995 (Vic) Pt 10. 62. For example, Fisheries Management Act 1991 (Cth) ss 22(3)(e) (fishing ‘rights’) and 32(5)(e) (‘licence’); Water Management Act 2000 (NSW) s 87. 63. See, for example, Water Act 2007 (Cth) Pt 2 Div 4; Water Management Act 2000 (NSW) ss 79, 87, 87A and 87AA. 64. See 7.46. 65. . 66. Coco v R (1994) 179 CLR 427 per Mason CJ, Brennan, Gaudron and McHugh JJ at 437. 67. Durham Holdings Pty Ltd v New South Wales [2001] HCA 7; Simes v Minister for Environment and Conservation [2004] SASC 84.

68. Commonwealth of Australia Constitution Act s 51(xxxi). 69. See, for example, Land Acquisition (Just Terms Compensation) Act 1991 (NSW); Land Acquisition and Compensation Act 1986 (Vic); Acquisition of Land Act 1967 (Qld); Land Acquisition Act 1969 (SA); Land Acquisition Act 1993 (Tas). 70. Durham Holdings Pty Ltd v New South Wales [2001] HCA 7 (compensation for acquisitions of coal capped; no right to additional compensation). 71. Durham Holdings Pty Ltd v New South Wales [2001] HCA 7; Bone v Mothershaw [2003] 2 Qd R 600. 72. See Mckenzie, ‘Water Rights in NSW: Properly Property?’ (2009) 31(3) Sydney Law Review 443. 73. And in relation to the Commonwealth Constitution s 51(xxxi), see 5.32 and following. 74. This case has been subsequently followed in Arnold v Minister Administering Water Management Act 2000 [2010] HCA 3. For a full analysis of the ICM case see Fisher, ‘Water law, the High Court and techniques of judicial reasoning’ (2010) 27 EPLJ 85. 75. See per Gillard J in Protean (Holdings) Ltd v Environment Protection Authority [1977] VR 51 at 56; Springhall v Kirner [1988] VR 159. 76. South Australian River Fishery Association v State of South Australia [2003] SASC 174; (2003) 126 LGERA 122 (SASCFC). 77. Though voluntary initiatives, even backed by financial incentives, rarely deliver successful outcomes in the longer term; see Gunningham et al, Smart Regulation: Designing Environmental Policy, OUP, Oxford, 1998. On market-based instruments, see further 7.40 and following. 78. See Preston ‘The Adequacy of the Law in Satisfying Society’s Expectations for Major Projects’ (2015) 32 EPLJ 182. 79. Preston, ‘The Adequacy of the Law in Satisfying Society’s Expectations for Major Projects’ (2015) 32 EPLJ 182 at p 192. And see Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure [2013] NSWLEC 48 at [485–491]. See also Productivity Commission, Staff Working Paper ‘Environmental Policy Analysis: A Guide to Non-Market Valuation’, (2014). Available at . 80. See Preston ‘Economic Valuation of the Environment’ (2015) 32 EPLJ 301. 81. Rachel Carson, Silent Spring, Houghton Mifflin Co, Boston, 1962, republished 2002. 82. Examples would be research into greenhouse gases or the causes of incremental loss of coral on the Great Barrier Reef. 83. For example, the new New South Wales Natural Resources Commission is required by law to recommend statewide targets and standards for natural resources management and undertake audits of the effectiveness of the implementation of catchment action plans in achieving compliance with those standards and targets: Natural Resources Commission Act 2003 (NSW) s 13. 84. Criminal enforcement is discussed in Chapter 20. Since breaches of environmental laws can often only be established by scientific evidence, the role of science is vital to successful criminal prosecution: see, for example, Jenkins, ‘Experience with Environmental Forensic Science in Environmental Protection Act Enforcement Proceedings in Western Australia’ (2001) 18 EPLJ 469. 85. Macrory, ‘Standards, Legitimacy and the Law — The New Environmental Agenda’ (2001) 18 EPLJ 242, 244. 86. See Chapters 21–22. 87. See 22.6. 88. See Chapter 20.

89. See further 22.6. 90. See 8.58 and following. 91. Such a status will depend either on a scientific determination or the provision of scientific advice: see Chapter 13. 92. See Chapter 14. 93. See Chapter 11. 94. See Chapter 15. 95. . 96. . 97. . 98. . 99. . 100. See . 101. See . 102. For example, in the face of federal government unwillingness to enforce prohibitions on whaling embodied in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA), the Humane Society International undertook its own enforcement action: see Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3; FCA 36; and for further commentary, see 4.11. 103. And on the Tasmanian Dam case, see 5.4 and following. 104. . 105. ‘Strategic Planning’. 106. Maritime Services Board of New South Wales v Citizens Airport Environment Association Inc (NSW Court of Appeal, 23 December 1992, unreported). 107. South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35; (1998) 72 ALJR 1008; Forestry Tasmania v Brown [2007] FCAFC 186. 108. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8. 109. Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59. 110. Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175; Lawyers for Forests Inc v Minister for the Environment Heritage and the Arts [2009] FCAFC 114. 111. Friends of Castle Hill Association Inc v Queensland Heritage Council (1993) 81 LGERA 346. 112. See Chapter 18. 113. See further Chapter 19. 114. See . 115. See 19.29. 116. Productivity Commission ‘Access to Justice Arrangements’ 2014. Available at . 117. See, for example, Director-General, Department of Planning and Infrastructure v Aston Coal 2 Pty Ltd [2013] NSWLEC 188.

118. See Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 s 3. 119. Protest is not a ‘terrorist act’ within the meaning of the Commonwealth Criminal Code Pt 5.3, so long as it is not intended to cause serious physical harm or death to a person, endanger life, or create a serious risk to the health or safety of the public or a section of the public. It remains to be seen how this latter provision in particular might be interpreted. 120. In Richter v Risby [1987] Tas R 36, a protester who was forcibly removed from a protest against logging brought charges of assault against the directors of the company involved. In McFadzean v Construction Forestry and Mining Energy Union [2007] VSCA 289, protesters who were prevented from leaving the site of a forestry protest by loggers subsequently sued in public nuisance and false imprisonment. 121. Such actions are often described as SLAPP suits: strategic litigation against public participation. See Walters, Slapping on the Writs: Defamation, Developers and Community Activism, UNSW Press, Sydney, 2003; Walters, ‘Let the People Speak’ (2005) 16 Current Issues in Criminal Justice 340; White, ‘Stifling Environmental Dissent: On SLAPPs and Gunns’ (2005) 30(6) Alternative Law Journal 268; Preston, ‘Participation from the Deep Freeze: “Chilling” by SLAPP Suits’ (2014) 31 EPLJ 47. 122. Australian Wool Innovation Ltd v Newkirk (No 2) [2005] FCA 1307. 123. Australian Wool Innovation Ltd v Newkirk (No 3) [2005] FCA 1308. 124. Gunns Ltd v Marr (No 2) [2006] VSC 329; Gunns Ltd v Marr (No 3) [2006] VSC 386. 125. Gunns Ltd v Marr [2008] VSC 464. 126. See . 127. Workplace (Protection from Protesters) Act 2014 (Tas) ss 6 and 17. 128. See . 129. See the Australian Local Government Association website at . 130. Local government responsibilities and interests are specifically referred to in cl 2.4: see Turnbull, ‘Local Government and the Inter Governmental Agreement on the Environment — How Does Local Government Implement the Grand Vision?’ (1992) 2 AELN 21. 131. For example, Local Government Act 1993 (NSW) ss 7 and 89. 132. TASQUE, ‘The Role of Local Government in Environmental Management’, University of Tasmania, March 1992. 133. See Mitchell and Brown, ‘Local Government: A Social Resource for Environmental Control’ (1991) 8 EPLJ 41; Berry, ‘Local Government Perspective on Managing Climate Change’ (1994) 1 AELN 33. 134. See . 135. For some indications of expenditure by local governments on environmental management, see Environmental Expenditure, Local Government, Australia 2002–2003, ABS, Canberra, 2004. The data does not appear to have been updated. See also Meares and Bates, ‘Options for Funding: Environmental Compliance Programs in NSW’ (2010) 16 LGLJ 32. 136. See generally Brandl and Bungert, ‘Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad’ (1992) 16 Harvard Environmental Law Review 1; Thornton and Tromans, ‘Human Rights and Environmental Wrongs’ (1999) Journal of Environmental Law Vol II, No 1 at 3. 137. Constitution s 26; and see Glazewski, ‘The Environment, Human Rights and a New South African Constitution’ (1991) 7 SAJHR 167 and ‘The Environment and the New Interim Constitution’ (1994) 1 SAJELP 1; Winstanley, ‘Entrenching Environmental Protection in the New Constitution’ (1995) 2 SAJELP 85. See also Constitution of the People’s Republic of China s 26; and Wang Xi and

Blomquist, ‘The Developing Environmental Law and Policy of the People’s Republic of China: An Introduction and Appraisal’ (1992) 5 Georgetown International Environmental Law Review 25. 138. Constitution of the Philippines 1987 art II s 16. 139. (1994) 33 ILM 173. 140. See generally Anderson, ‘Environmental Protection in India’ in Boyle and Anderson (eds), Human Rights Approaches to Environmental Protection, Clarendon, Oxford, 1996. 141. Vellore Citizens’ Welfare Forum v Union of India (1996) 5 Supreme Court Cases 647; MC Metha v Kamal Nath (1997) 1 SCC 388. For further discussion on principles of sustainable development, see Chapter 8. 142. Indian Council for Enviro-Legal Action v Union of India (1996) 3 Supreme Court Cases 212. 143. Article 13 of the Convention stipulates that everyone whose rights and freedoms as set out in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. 144. Lopez Ostra v Spain (1994) 20 EHRR 277 (not acceptable to reject request for information about effects of pollution on basis that the State did not have relevant information). 145. Guerra v Italy (1998) 26 EHRR 357. 146. Hatton v UK (2003) 37 EHRR 28 (night flights to and from Heathrow; no violation of art 8 but a violation of art 13). 147. Moreno Gómez v Spain ECHR 4143/02 (failure to deal with vandalism and noise leading to health problems; breach of art 8). 148. Standing under the Human Rights Act depends on the applicant being a ‘victim’, which effectively blocks ‘representative’ actions: see, for example, Adams v Advocate General for Scotland [2002] UKHRR 1189 (hunting association challenging ban on fox hunting denied standing; not all members affected); R v Mayor of London ex parte Westminster City Council [2002] EWHC 2440 (challenge to London congestion charge; local council not a ‘victim’). 149. Dennis v Ministry of Defence [2003] Env LR 34 (award of £950,000 in compensation). In this case, a claim in nuisance was blocked by legislation. However, in McKenna v British Aluminium [2002] Env LR 30, the British High Court postulated that the rules about who could bring a private law action in nuisance might need to be modified to accord with human rights protection. 150. Human Rights Act 2004 (ACT); Human Rights Commission Act 2005 (ACT). 151. Charter of Human Rights and Responsibilities Act 2006 (Vic). 152. See further Chapter 22. 153. See the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). The former Secretary-General to the United Nations, Kofi Annan, has remarked that the Aarhus Convention ‘is the most ambitious venture in the area of environmental democracy so far taken under the auspices of the United Nations’: see further . See also EC Directive 2003/4 Access to Environmental Information (provides basic rights of access to environmental information held by public authorities in member states); EC Proposal for a Directive on Access to Justice in Environmental Matters (2003). 154. See Dwyer and Preston, ‘Striving for Best Practice in Environmental Governance and Justice: Reporting on the Inaugural Environmental Democracy Index for Australia’ (2015) 32 EPLJ 202. 155. See . 156. Stone, ‘Should Trees Have Standing? — Toward Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review 450.

157. (1972) 405 US 727. 158. See Chapter 19. 159. See, for example, Smith, ‘What Price a Wedgetail Eagle? An Examination of Penalties Imposed for Harming Protected Species’ (2004) 21 EPLJ 445; Thiriet, ‘Out of the Too Hard Basket — Traditional Hunting and Animal Welfare’ (2007) 24 EPLJ 59; ‘In the Spotlight — the Welfare of Introduced Wild Animals in Australia’ (2007) 24 EPLJ 417 and responses at (2008) 25 EPLJ 157 and 160. 160. See Akers and Bagaric, ‘No Absence of Malice Towards the Gallus’ (2001) 18 EPLJ 505. 161. See further 4.27. 162. . 163. See Macrory, ‘Standards, Legitimacy and the Law — The New Environmental Agenda’ (2001) 18 EPLJ 242. 164. UK Royal Commission on Environmental Pollution, ‘Setting Environmental Standards’, Cm 4053 (1998) at 5.48. 165. For example, Non-Indigenous Animals Act 1987 (NSW). 166. See Chapter 14. 167. See Chapter 8. 168. See, for example, Grant and Papadakis, ‘Transforming Environmental Governance in a “Laggard” State’ (2004) 21 EPLJ 144. 169. See 17.19 and following. 170. See 7.36 and following. 171. See 18.74 and following. 172. ‘Internalising Ecocentrism in Environmental Law’ (2011) available on the LEC website at . See also Williams, ‘Wild Law in Australia: Practice and Possibilities’ (2013) 30 EPLJ 259. 173. Bonyhady, ‘A Usable Past: The Public Trust in Australia’ (1995) 12 EPLJ 329. 174. Sax, Defending the Environment: A Strategy for Citizen Action, Vintage Books, New York, 1972, p 165; see also Sax, ‘Liberating the Public Trust Doctrine from its Historical Shackles’ (1980) 14 U Cal LR 185. 175. The issue of standing is discussed more fully in Chapter 19. 176. ‘Divining Common Law Standards for Environmental Protection’ (1994) 11 EPLJ 289. 177. Hornsby Council v Roads and Traffic Authority (NSW) (1997) NSWCA 40577/94, cited in Bonyhady, ‘An Australian Public Trust’ in Dovers (ed), Environmental History and Policy: Still Settling Australia, Oxford University Press, Melbourne, 2000, pp 258, 271. 178. See Preston, ‘The Role of the Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific’ (2005) 9 APJEL 109, 203. 179. Per Bignold J in Environment Protection Authority v Softwood Holdings Ltd (2000) 110 LGERA 87; see also Environment Protection Authority v Norco Co-operative Ltd (2000) 108 LGERA 137; Environment Protection Authority v Port Kembla Copper Pty Ltd (2001) 115 LGERA 391; Environment Protection Authority v Collex Pty Ltd (2001) 115 LGERA 337; Environment Protection Authority v Hochtief AG [2006] NSWLEC 200. 180. See Chapter 16. 181. Product Stewardship Act 2011 (Cth).

182. For further discussion on property agreements, see 7.46; and on the use of administrative orders, see 20.4. 183. For example, Natural Resources Management Act 2004 (SA) s 182. 184. See 7.46. 185. See Chapter 13. 186. See Chapter 18. 187. See, in particular, Preston, ‘The Environment and Its Influence on the Law’ (2008) 82 ALJ 180; ‘Administrative Law in an Environmental Context: An Update’ (2007) 15 AJ Admin L 11. 188. See 9.35 and following. 189. See, for example, Environmental Protection Act 1994 (Qld) s 548; Protection of the Environment Operations Act 1997 (NSW) s 323 (‘regulations may adopt any document (including for example a code of practice) as in force from time to time’). 190. See Environment East Gippsland Inc v VicForests [2010] VSC 335; MyEnvironment Inc v VicForests [2012] VSC 91; [2013] VSCA 356. 191. See, for example, DeAngelis v Pepping [2014] NSWLEC 108 (guide to preparing local environmental plans issued by NSW Department of Planning held to be advisory only). 192. Guidelines, like regulations, cannot be used to qualify definitions contained in an Act unless there is a provision in the Act enabling that to happen: see Environment Protection Authority v Shannongrove Pty Ltd [2010] NSWLEC 162. 193. . 194. Donohue v Australian Fisheries Management Authority [2000] FCA 901 (order prohibiting longline fishing). 195. Re Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy [1992] FCA 351 (fisheries management plan); Currareva Partnership v Welford [2000] QSC 098 (water resource plan). 196. See, for example, Weeroona Holdings Pty Ltd v Environment Protection Authority [2013] SAERDC 41 (contaminated site remediation order). 197. For example, abolition of common law riparian rights to water; see further 3.14. 198. An intermediate appellate court (state court of appeal) is entitled to depart from its earlier authority when that authority is ‘plainly’ or ‘clearly’ wrong: see Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board [2010] NSWCA 146. 199. Such steps can be taken only when it can be seen that the new rule or principle has been derived logically or analogically from other legal principles, rules and institutions; see Breen v Williams [1996] HCA 57 at [47]. 200. See 11.24. 201. Australian Conservation Foundation v Commonwealth [1980] HCA 53; and see 19.2 and following. 202. See Chapter 19. 203. See further Chapter 8. 204. See, for example, Acts Interpretation Act 1901 (Cth) s 15AA; Interpretation of Legislation Act 1984 (Vic) s 35(a); Acts Interpretation Act 1915 (SA) s 22. And see Perry v Attorney-General (NT) [2014] NTSC 17. 205. See also City of Marion v Paior [2013] SASCFC 77 (purpose of legislation to provide for public participation in planning process relevant to interpreting the standing of the applicant). 206. Save Our Street Inc v Settree (2006) 149 LGERA 30.

207. Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41; 239 CLR 27 at [52]. 208. The legislature subsequently redefined the term ‘impact’: see Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 527E. See also Bechara v Plan Urban Services Ltd (2006) 149 LGERA 41 (‘minimal’ means ‘very small’ or ‘negligible’). 209. See Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103. 210. For example, Outback Leather Pty Ltd v Director-General, National Parks and Wildlife Service (1996) 92 LGERA 319 (kangaroo culling); Haggarty & Morrison Pty Ltd v New South Wales (1995) 98 LGERA 226 (cessation of logging and creation of a national park); Queensland v Commonwealth (1988) 62 ALJR 143 (not for the court to question the bona fides of legislative acceptance of world heritage values of Queensland rainforests); Dubler Group v Ku-ring-gai Municipal Council (2004) 133 LGERA 438 (minister’s opinion on matters of planning significance); Ilic v City of Adelaide [2010] SASC 139 (minister’s opinion on local heritage values). 211. See, for example, Sunshine Coast Regional Council v Parklands Blue Metal Pty Ltd [2015] QCA 91. 212. Preston, ‘Climate Change Litigation in the Land and Environment Court of New South Wales and Other Courts’, 20 August 2009; available on the LEC website at . 213. See, for example, Hub Action Group Inc v Minister for Planning and Orange City Council [2008] NSWLEC 116 (waste minimisation and sustainability of prime pasture and cropping land); Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59 (renewable energy). 214. See 22.2 and following. 215. The relevant bodies are: the Commonwealth Administrative Appeals Tribunal (Administrative Appeals Tribunal Act 1975 (Cth)); in the Australian Capital Territory, the Civil and Administrative Tribunal (Civil and Administrative Tribunal Act 2008 (ACT)); in New South Wales, the Land and Environment Court (Land and Environment Court Act 1979 (NSW)); and see also Stein J, ‘The Role of the New South Wales Land and Environment Court in the Emergence of Public Interest Environmental Law’ (1996) 13 EPLJ 179; Stewart, ‘Effects of the Land and Environment Court’ (1999) 16 EPLJ 482; Northern Territory, the Northern Territory Civil and Administrative Tribunal (Northern Territory Civil and Administrative Tribunal Act 2014 (NT); Queensland, the Planning and Environment Court (Sustainable Planning Act 2009 (Qld) Ch 7 Pt 1); South Australia, the Environment Resources and Development Court (Environment, Resources and Development Court Act 1993 (SA)); Tasmania, the Resource Management and Planning Appeal Tribunal (Resource Management and Planning Tribunal Act 1993 (Tas)); Victoria, the VCAT (Civil and Administrative Tribunal Act 1998 (Vic)); and in Western Australia, the State Administrative Tribunal (State Administrative Tribunal Act 2004 (WA)). 216. For example, the New South Wales Land and Environment Court (Land and Environment Court Act 1979 (NSW)). 217. For example, the Commonwealth Administrative Appeals Tribunal (Administrative Appeals Tribunal Act 1975 (Cth)). 218. For example, the Tasmanian Resource Management and Planning Appeal Tribunal (Resource Management and Planning Appeal Tribunal Act 1993 (Tas)). 219. . 220. . 221. ‘Operating an Environment Court: The Experience of the Land and Environment Court of New South Wales’ (2008) 25 EPLJ 385. See also Preston, ‘Operating an Environment Court: The Experience of the Land and Environment Court of New South Wales and 12 Benefits of Judicial Specialisation in Environmental Law’ (2011), available on the LEC website at . 222. See Preston, ‘The Land and Environment Court of New South Wales: Moving Towards a MultiDoor Courthouse’ (2008) 19 ADRJ 72 and 144. 223. Preston, ‘Operating an Environment Court: The Experience of the Land and Environment Court of New South Wales’ (2008) 25 EPLJ 385 at 391–2; and see further 20.8. 224. See Mason v Greater Geelong City Council [2013] VCAT 2057.

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Chapter 3 Environment Protection and the Common Law Introduction 3.1 Environmental law is a product of legislation, not a creature of common law. So why is the common law important to a book about environmental law? There are five reasons. First, common law rules survive unless amended by statute. To be effective, environmental legislation has to recognise and, if necessary, overcome common law rules. In order to understand what legislation is trying to achieve — and why — it is also necessary to understand those aspects of the common law that the legislation is seeking to overcome; or, as lawyers might say, the ‘mischief’ that the legislation is seeking to remedy. Neither can the operation of legislation be properly understood without appreciating the common law rules that survive and underpin, or are relevant to, the operation of the statutory scheme. Second, principles of common law underpin and protect fundamental social structures. Environmental policy, and therefore environmental law, has to work within a framework that recognises and respects fundamental principles of capitalist democracy, such as respect for private property and individual rights and freedoms. Third, common law remedies are important. They may be used by private landowners to protect their own environments from damage and interference. They may also be used to protect individual rights against bureaucratic excesses of power, and as a response to breaches of environmental legislation. Fourth, interpretation of statutes may be dependent on concepts developed at common law. Where statutes do not explain terms used in the legislation, then courts may turn to principles of common law to interpret them. Lastly, where persons, their property or their businesses are affected by environmental degradation caused by someone else, then the only way to gain compensation for such harm is to take a common law action seeking damages.

These recurrent themes surface in all chapters of this book.

The importance of property 3.2 As noted in Chapter 2, Australia inherited a common law system of governance. The purpose of the common law has always been to reflect and protect the fundamental nature of our society — a capitalist parliamentary democracy. Recognition of rights over ‘property’ is fundamental to this capitalist social structure; indeed, the legal fiction that was exposed by the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1, that Australia was terra nullius at the time of invasion because it had [page 68] no civilised or recognisable form of government, was based largely on an absence in Aboriginal communities of any formal or delineated recognition of rights over property.1 The common law therefore sees the environment more as an ‘ecosystem’ of property entitlements to land, among which the concept of ‘ownership’ is paramount. Land is owned either by private individuals or organisations or by the Crown.2 The owner can deal with that property in any way the landowner chooses, and if the landowner chooses not to look after the ‘environment’ then that is the landowner’s right. Only where a landowner’s activities on, or neglect of, the land begin to impinge on neighbouring landowners would the common law take any notice of what was happening to the environment, and only then to protect neighbouring property rights, not to protect the environment per se. At common law the proprietary rights of a landowner extend cujus est solum, ejus est usque ad coelum et ad inferos — up to the sky and down to the centre of the earth,3 though the courts have since placed limitations on this doctrine that restrict the exercise of such rights to reasonable limits.4 Those who have the best possessory right to land (and the best of all, of course, is ownership) can also control access to, and exploitation and management of, resources on that land. The only restriction on the exercise of such rights at common law is the presence of neighbouring landowners, who have similar rights to use and enjoy their property without unreasonable interference.5 Environmental restrictions imposed by legislation, of course, cut across these common law rights; for example, depriving landowners of ownership of minerals beneath the surface, and restricting their ability to conduct activities, such as clearance of native vegetation, on their land that would have been

unimpeded at common law. Centuries of legal and cultural tradition that support the pre-eminence of the rights of private landowners cannot, however, be easily overcome, and consequently such historic and traditional rights still have a considerable influence on the development of environmental policy and therefore of environmental law in the present day. 3.3 The pre-eminence of property in the common law scheme begs the question, of course, ‘what is property?’.6 Property can be ‘real’ (land) or ‘personal’ (movable or intellectual property (IP)). Environmental law is more influenced by rights attached to land and natural resources. Basically, property in land is recognised by the rights it confers: rights to enjoy, use, protect and transfer land and its natural resources; exclude or restrict access to that land; and grant access rights that are either proprietary in nature, for example, leases and profits à prendre (rights to take resources), or non[page 69] proprietary, that is, of a personal nature, such as licences or ‘permissive’ rights.7 These property rights of the private landowner are still the backbone of our social structure, because they provide a measure of security8 in a capitalist system, although the extent to which they can be exercised without due regard to the environmental and social consequences has been gradually whittled away by statutory intervention seeking a balance between the right of the private landowner to develop or use land, and protection of the wider public interest in the maintenance of environmental quality.9 3.4 Rights to develop land and to exploit the natural resources of land are now generally controlled by legislation,10 but the right to decide how to manage the land has, until recently, been largely unfettered. Yet the management of land is crucial to its ability to sustain long-term productive activity as well as protect natural ecosystems. For example, a farm is used for agricultural and pastoral purposes, but the way in which it is used will have a significant effect not only on productivity but also on the environment. The clearing of native vegetation, use of chemical fertilisers, application of pesticides and herbicides, and failure to attend to erosion and salinity problems may all have a marked environmental effect on that property, on watercourses that flow through it, and on the biodiversity that inhabits it, as well as on neighbouring land. Yet the right of the private landowner to effect such significant environmental changes is regarded as sacrosanct at common law — at least until the rights of use and enjoyment of a neighbouring landowner are adversely affected. As Lord Scarman once remarked,11 at common law, ‘a bad landowner cannot be prevented from doing irreparable

harm to his own and surrounding environments, and since that environment happens to be part and parcel of that of the rest of us, we ought all to be concerned with its wise and sensitive management’. 3.5 Inevitably, the evolving necessity to manage natural resources in a more sustainable manner is leading to more and greater restrictions on the ability of private landowners to do exactly as they wish on their own land. However, this increasing regulation is not of course being led by the common law; it is the reaction of government policy and legislation which realises that, left to common law devices for managing natural resources, sustainable outcomes simply cannot be progressed, let alone achieved. In order to understand environmental legislation, therefore, it is essential to understand the common law, and the ‘mischief’ in the common law that [page 70] legislation is trying to overcome. As Lord Goff acknowledged in Cambridge Water Co v Eastern Counties Leather Co [1994] 1 All ER 53 at 76: … public bodies … are taking significant steps towards the establishment of legislation which will promote the protection of the environment … given that so much well informed and carefully structured legislation is now being put in place for this purpose, there is less need for the courts to develop a common law principle to achieve the same end and indeed it may well be undesirable that they should do so.

But the point, of course, is that this ‘carefully structured legislation’ will reflect the necessity to integrate environmental policy and environmental law within an existing social structure that relies heavily on concepts of property as the bedrock of economic activity. The success of environmental legislation will be measured, therefore, largely by its ability to effectively respond to, and deal with, the cultural and political pressures exerted by the actual or perceived rights that attach to land and other natural resources.

Ownership and management of natural resources 3.6 At common law, the ownership of land generally carries with it the right to exploit the natural resources found on that land. The common law recognised, however, that some natural resources could not, or should not, be owned by anyone. While acknowledging that an owner of land should be allowed to also own static natural resources found on that land, such as vegetation, forests and minerals, the common law would not extend such rights to movable resources such as air, water12 fish and other wildlife13 — although the owner had a right to take such resources into possession, and,

indeed, by dint of the ability to control access to that land as a right inherent in the concept of ownership, the best access to those resources. The reason why only static natural resources were capable of being owned by a landholder lies in the practical impossibilities inherent in ‘owning’ resources that, by their very nature, are going to move and pass naturally from one property to another. For example, if a landowner were to own the wildlife found at any particular point of time on the land, and that wildlife then passed onto an adjoining property, imagine the arguments that might ensue between neighbours, resulting in many possible acts of trespass onto land to regain ‘lost’ resources. The impossibility of ‘owning’ air or flowing water becomes even more obvious, although of course both the common law and legislation have invented ways to manage access to water resources.14 Nevertheless, because the landowner can, as a right of ownership, exclude others from the land, the owner is in the best position to take such resources into possession. Once they are possessed, a person can then enforce this right of possession against the whole world because there is no one else with a better right of possession; that is, ownership of the resource. The common law, however, imposed no regime of management on private landowners: a landowner was free to exploit and degrade the [page 71] resources on the land so long as the use and enjoyment of neighbouring property was not unreasonably affected.15 The common law also denied private ownership of certain resources because it was in the public interest to do so:16 for example, the seashore,17 and the sea for navigation and fisheries.18 Once again, however, the common law imposed no regime of management on the use of such resources. Any of these resources could lawfully be used by anyone, even to the extent of depleting or destroying the nature or values of the asset — the so-called ‘tragedy of the commons’.19 3.7 The common law principle of unrestricted rights of access to natural resources, however, clearly could not survive the pressures of both recreational and commercial exploitation. In the face of heightened public and governmental concern about the continuing depletion and degradation of natural resources, made possible by the technological advances introduced by the Industrial Revolution, governments everywhere were ultimately forced to step in to modify or overrule common law rights by legislation to ensure the sustainability of those resources.20 As Brennan J remarked in Harper v Minister for Sea Fisheries (1989) 168 CLR 314 at 329, 330:

… the public right of fishing in tidal waters is not limited by the need to preserve the capacity of a fishery to sustain itself. The management of a fishery to prevent its depletion by the public must be provided for, if at all, by statute …

And because the common law right of fishing in the sea and in tidal navigable rivers is a public not a proprietary right, it is freely amenable to abrogation or regulation by legislation. 3.8 Government has progressively moved, therefore, to vest control of natural resources in the Crown,21 in order to facilitate ease of management. It is common now for water, mineral resources, fisheries and other biodiversity to be vested in and controlled by the Crown.22 Allocation of natural resources to commercial and individual interests [page 72] under these statutory regimes bears all the hallmarks of what would have been the creation of a common law profit à prendre if allocated by a private landowner.23 As the government on behalf of the Crown now controls management of these public resources, the public only has common law rights to access natural resources to the extent that government has not abrogated them.24 This allows government instrumentalities to impose management regimes that control allocation of resources, set out the conditions under which utilisation will occur, and manage environmental impacts. The objects of legislation under which these powers are exercised frequently state that the sustainability of the resource is a key feature of decision-making.25

Creation of proprietary and permissive interests 3.9 A landowner can create a variety of subordinate legal interests that allow others to enjoy access to, or possession of, land and natural resources. These interests may have the security of being a form of property (proprietary interests), or they may simply be permissive in nature. Proprietary interests include leases, easements, covenants and profits à prendre. A lease gives possession of the land to the lessee. It is commonly used in legislation to confer rights to extract minerals,26 or to confer exclusive possession to land for grazing or other pastoral or agricultural purposes.27 A covenant is a burden on one parcel of land taken for the benefit of neighbouring land. It has commonly been employed as a device in subdivisions of land to protect vendors against unsuitable uses by purchasers

of adjacent land.28 Unlike a contract, which is a personal legally binding arrangement between the parties who enter into the agreement, a covenant attaches to the land, which then takes the benefits and burdens of the covenant. Covenants therefore are capable of binding future owners of that land who were not parties to the original agreement. The introduction of environmental planning legislation has made the creation of covenants to protect private property largely, but not entirely,29 otiose. Indeed, covenants may obstruct the implementation of modern planning policies, in which case they can usually [page 73] be suspended in relation to affected development under the statutory scheme.30 The concept of a covenant, and also a contract, however, has been borrowed by legislation in creating property management agreements or conservation covenants, albeit without importing the technical difficulties that beset the operation of common law covenants.31 Easements are rights that may be exercised for the benefit of one property over a neighbouring property. A right of way is a common form of easement. When coupled with a right to take resources from land, a profit à prendre (right to take) may be created. This grants to the holder of the profit not only rights of access over the land but the right also to remove a resource, such as timber, fish, turf or sand.32 Modern statutory licences or entitlements that allow the holder of the entitlement to secure access to public resources such as water and fisheries may be viewed as statutory versions of a profit à prendre.33 3.10 Legislation has also created other forms of property rights previously unknown to the common law; for example, biodiversity credits created under a biobanking agreement for offsetting the impacts of development, particularly on threatened species;34 and the right of carbon sequestration,35 the process by which a tree or forest absorbs carbon dioxide from the earth’s atmosphere.36 A carbon sequestration right37 is a type of profit à prendre38 that may be conferred separately from the ownership of the trees, allowing the owner a right to storage of carbon in the trees; and, as a property right, the ability to use or sell on the benefits of the carbon sequestration, perhaps under a scheme for offsetting carbon emissions under an emissions trading scheme, either domestic or international.39 [page 74] Permissive ‘rights’, or licences, do not have the security attached to a right in property; they may be revoked at any time, though if coupled with a

contract, revocation of the licence may trigger a claim for breach of contract. A licence is a personal arrangement between the person who grants the licence (the licensor) and the grantee (licensee); it cannot therefore be transferred to anyone else. Licences are used extensively in statutory schemes for environmental management, though modern licences may not bear all the characteristics of a common law licence. Statutory licences, sometimes referred to as rights of access or statutory entitlements, for example, are commonly transferable.40 3.11 To someone contemplating making an arrangement with a landowner or resource manager about access to natural resources, the type of legal interest that enables access to those resources is obviously important. The person negotiating for access to a private or public resource will want security and therefore a right of property; the grantor may want the flexibility of being able to manage and control access by way of a licence. Allocations of statutory rights to water and fisheries, for example, have traditionally been by way of licences. It is very difficult, however, to plan for commercial operations, or even to maintain a viable way of life, if access to the resources that underpin investment can be taken away at any time. A licensee also has no rights against third parties, so could not protect the subject matter of the licence against interference by others.41 The lack of transferability of a licence is also problematic if, for example, a landowner not using a water entitlement wishes to transfer the right to a neighbour;42 or a fisherman wants to retire from the industry and transfer his fishing right to another operator. Gradually, both regulators and the regulated community began to treat such licences as de facto property entitlements, in effect turning a blind eye to informal transfers of entitlements43 and thus placing a price on the value of the licence at any particular point in time. Eventually, government policy had to recognise the inevitable; modern legislation creates transferable entitlements to resources that bear more of the characteristics of proprietary than permissive rights.44 One of the conditions on which federal funding would be delivered to the states under the National Water Initiative (NWI), in fact, was the separation of rights in water from the ownership of the land, thus making water a tradeable commodity.45 This could never have happened under a common law licensing regime. [page 75]

The effect of environmental legislation on

common law rights 3.12 Legislation has clearly borrowed from common law concepts in crafting statutory regimes for environmental management. Aided by an appreciation of principles of common law, it then becomes easier to understand what the legislation is trying to achieve, and why and how it is doing it in the manner set out in the legislation. Often, however, the exact effect of legislation on principles of law as they would be understood at common law is not so obvious. The normal rule of statutory interpretation is that principles of common law are not affected by legislation except by express or implied statutory amendment. In other words, the common law survives unless and until it is amended or repealed by legislation.46 3.13 Legislation may deem it necessary to modify common law rules to give effect to the policies underlying statutory schemes; but interpretation of statutory schemes that modify private rights will seek to go no further than is necessary for implementing the clear intent and purpose of the legislation.47 3.14 Occasionally, only abolition of common law rules will serve the statutory scheme. In New South Wales, for example, common law rules about the standing of a person to address a court have been simply abolished; any person has the right to take action to remedy or restrain breaches of environmental laws.48 Abolition of the common law rules has been based on contemporary social concerns that environmental laws, enacted in the ‘public interest’, should be able to be enforced by anyone irrespective of whether they have recognised common law interests to protect. Another example is the doctrine of riparian rights at common law; that is, the right of a landowner whose land abuts a natural watercourse to access water for domestic purposes. Riparian rights formed from common law principles of water entitlements that are based on a European climate do not sit well with the realities of water management under Australian climatic conditions. Most jurisdictions have abolished this right49 only to replace it with a very similar, but more clearly defined, statutory entitlement,50 thus giving more certainty to the overall statutory scheme for water management.51 3.15 A more recent example, which goes to the heart of urban and suburban ‘property rights’, is the Trees (Disputes Between Neighbours) Act 2006 (NSW), the purposes of which are to enable the Land and Environment Court to make orders to remedy, restrain or prevent damage to property or to prevent injury to any person by a tree

[page 76] that is situated on adjoining land.52 This function would normally be undertaken by the common law action in nuisance,53 which has now been abolished for the purposes of resolving disputes over damage caused by trees.54 The policy behind this is to afford disgruntled neighbours a more effective way of resolving an increasing number of disputes about trees than seeking redress in the Supreme Court, which is the traditional way to resolve a nuisance. This Act does not, however, have any effect on common law actions in negligence or trespass seeking to remedy injuries caused by trees.55 3.16 The right to seek common law remedies has also been modified by the granting of statutory exemptions to government administrators conducting difficult tasks of environmental management.56 In addition, of course, all environmental statutes will, to some extent, ‘modify’ the common law ‘rights’ of private landowners to conduct activities on their land that do not unreasonably interfere with neighbouring landowners; after all, this is the basic intent of environmental legislation, and the subject matter of much of this book. On the other hand, the availability and use of common law actions to remedy environmental harm may exert an influence on environmental outcomes that is consistent with governmental policy to protect and manage the environment. For this reason, environmental legislation not only frequently and deliberately preserves common law rights indirectly, by dint of not modifying or otherwise affecting them,57 but also may expressly preserve rights to take common law actions, providing specifically that civil rights and remedies are not to be limited by the provisions of the legislation. Common law remedies to compensate for damage caused by pollution, for example, would be considered complementary to statutory schemes for managing pollution.58 [page 77]

Common law actions 3.17 The common law does not regard, and never has regarded, harm to the environment per se to be worthy of a remedy at common law. True, the common law action in nuisance59 may compensate a landowner for damage to the environment, but this is because the common law views this as an infringement of the landowner’s property rights, rather than as a breach of any duty to protect the environment. Common law actions are, of course,

essentially reactive, not proactive. They are designed more to compensate victims of harm for the wrong they have suffered, although, in so doing, some deterrence factor may be achieved.60 The common law may remedy any acts that cause injury or harm to property, or unreasonably interfere with the enjoyment of land. These remedies are usually sought through actions in nuisance or trespass — forms of ‘tort’ or civil wrong for which damages to compensate for any loss or injury, and an injunction to put a stop to such unlawful activities, may be claimed.61 Since the focus of these common law actions is the protection of private rights, not environmental protection, the common law is of limited assistance in controlling environmental damage. The landowner’s ability to protect his or her own environment may, however, even if only accidentally, result in the protection of the wider environment. 3.18 Modern environmental legislation may also allow claims for compensation for damage caused by an act of pollution to be tacked on to a successful criminal prosecution,62 thus obviating the need in some cases to use the common law to recover damages. This procedure, however, is practically only of use if the regulatory authority successfully undertakes a criminal prosecution of the offender.

Nuisance and trespass 3.19 Rights in land and natural resources are protected at common law from unlawful interference mainly by actions in nuisance and trespass. A trespass is a direct intentional interference with land or property; for example, by way of some polluting deposit placed directly on it, such as the dumping of waste63 or direct spraying with toxic chemicals. A nuisance is an indirect interference with a person’s land or enjoyment of it, such as by way of noise, smells and other forms of air or waterborne pollution. So, for example, pollution emanating from outside the boundaries of the subject land and flowing down to it or drifting over it will generally be regarded as a nuisance rather [page 78] than a trespass.64 Nuisance may be classed as private or public, depending on whether individual landholders or the public at large are affected. Since the courts seem to have traditionally regarded polluting interferences, at least, as something ‘analogous to’65 or ‘in the nature of’66 a nuisance or

trespass, the technical distinctions between these forms of action matter little for our purposes. However, the development and use of the actions in nuisance and trespass as remedies for any interference with property rights still strongly influence the lawyer’s view of common law environmental rights in the present day. It is often convenient, or even necessary, for a plaintiff relying on these forms of action to prove a case, to show that in similar circumstances, respondents have previously been held liable for committing a nuisance or a trespass.67 A trespass, theoretically, is actionable without proof of harm; in nuisance, actual damage or at least interference with the use and enjoyment of land must be proved. Practically, however, the common law will not issue a remedy unless some sensible interference or material harm has actually occurred or is threatened.68 In any case, landowners are unlikely to take legal action for environmental harm unless some harm has occurred or is threatened, and since most environmental harm is likely to occur indirectly, most actions at common law will be based in nuisance.

Nuisance 3.20 A nuisance has been said to be ‘an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions’ of the community.69 In other words, an objective test will be applied based upon whether ‘a person of ordinary habits and sensibilities in the plaintiff’s position and circumstance would regard the interference with the enjoyment of the land as unreasonable’,70 allowing for a bit of ‘give and take’.71 Unlike an action in negligence, [page 79] which provides a remedy for personal injury or economic loss,72 to succeed in nuisance73 it is not necessary to prove that the respondent was under any legal duty to take care;74 but as in negligence, knowledge or foresight of the risk of harm is required. The plaintiff must, however, have suffered injury or damage to an interest in land as an owner or leaseholder of that land.75 The wrongdoer does not have to actually be the occupier of the premises from which the nuisance emanates; it is enough that such person is vested with management and control of the premises.76 A person who acquires land following the commission of a nuisance will only be liable, however, if the

nuisance is continued or adopted.77 If a person knows or ought to know of the nuisance and the real risk of reasonably foreseeable consequential damage to another, then an obligation arises to take such positive action as a reasonable person in that position and under those circumstances would consider necessary to eliminate the nuisance. In Stockwell v Victoria [2001] VSC 497, Gillard J concluded that the State of Victoria, through its employees, had committed a nuisance to the plaintiff by allowing feral wild dogs to move from its land onto the plaintiff’s land and kill his sheep. The activity that constituted the nuisance, with knowledge of its existence or circumstances, was allowed to continue by the occupier, who failed to take reasonable steps to eradicate it: Once a defendant occupier knows or is presumed to know of the hazards on his land, and if as a reasonable man he could foresee that the defect or condition if not remedied may cause damage to his or her neighbour’s land, a ‘measured duty of care’ arises.78

3.21 Generally, there will be no liability in nuisance unless the act complained of produces some ‘sensible’ or ‘material’ injury79 or affects the reasonable enjoyment80 [page 80] of property. For example, the pouring of heated water into a stream is an act of pollution,81 but in the legal sense there can be no liability unless the quality of the water also deteriorates sufficiently to cause harm — for example, by rendering the water unfit for human or animal consumption,82 by driving away or killing off fish or other marine life83 — or by hampering any other lawful pursuit that makes use of the water. Similarly, the emission of smoke and fumes,84 noise,85 vibration,86 sewage,87 drainage water or stormwater88 and other forms of pollution, or invasion by tree roots89 will not constitute an actionable nuisance at common law unless it can be proved that they are actually harmful to the plaintiff’s property,90 or in some way affect the reasonable enjoyment of it.91 Aesthetic or visual pollution, however, is difficult to remedy. The common law does not recognise any right to the maintenance of a view,92 to freedom from being overlooked,93 or from being exposed to unsightly accumulations of scrap or rubbish94 or an unkempt or overgrown garden.95 Resort to statutory planning controls may, however, provide an appropriate remedy.96 Although the court will not remedy merely trivial nuisances,97 the courts in practice will interpret the concept of triviality in favour of landowners. For example, it has been

[page 81] held that the loss of one night’s sleep through excessive noise is not trivial.98 However, where an action in nuisance is based on a substantial interference with the plaintiff’s enjoyment of land, for example by noise or fumes, rather than by physical damage to it, then it is clear that the reasonableness of the activity will govern liability.99 Whether an activity is reasonable will depend on various factors, such as the locality in which the alleged nuisance takes place, its duration, the potential for harm, and the character and extent of harm.100 Where actual damage to property is caused, however, then reasonableness is not such an important issue.101 3.22 In Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128; [2013] NSWCA 382, a nuisance action in respect of polluted stormwater runoff onto the plaintiff’s land from the defendant’s kerbs, gutters, roads and pipes, raised an interesting complication when the plaintiff also claimed that the subsequent ponding of the water would be likely to establish suitable habitat for a threatened species of froglet (the Wallum Froglet), and that the plaintiff would lose that portion of the land for development and bear the burden of being required to maintain it. Runoff onto the land had been increasing for a number of years.102 The existing development consent contained conditions relating to the production of a management plan for the froglet and consequent monitoring and reporting.103 In essence, the respondent claimed that the plaintiff’s case was a right to be free of a protected species; that such a right was not a right incidental to the ownership of property that was known to the common law, and therefore not subject to a claim in nuisance. Neither should such a right be acknowledged by extension of common law principles, for then there would clearly be an incoherence between the existence of a legislative framework for the preservation of threatened species and the existence of a right, protected by the law of nuisance, to be free of the presence of protected species on one’s land. The plaintiff claimed in response that it was merely seeking protection of its right to the enjoyment of the land. The land was inundated with untreated stormwater so that it could not enjoy it, a consequence of which was the establishment of the Wallum Froglet habitat that would otherwise not have been established because the land would have been free of the water and the consequence of ephemeral ponding. The plaintiff did, however, claim that damages for the nuisance should include costs relating to maintenance of the froglet habitat as well as diminution in the value of its land. The court accepted that the plaintiff’s claim was that the defendant’s conduct had

[page 82] caused an increase in stormwater runoff on its land that had caused an unreasonable interference with the enjoyment of its land, irrespective of the presence of the froglets, and therefore did not deal directly with the question of whether the froglets themselves could be regarded as a nuisance. The court held that the nuisance had been proved, but rejected the claim that damages should extend to the value of the land that would be quarantined by the froglets as the evidence established that the froglets were there prior to the nuisance arising and therefore were not a consequence of the nuisance. The plaintiff was, however, entitled to recover some of the additional costs of treating or improving the quality of the stormwater so as to accommodate the froglets. Subsequently, the Court of Appeal agreed that the council was liable in nuisance for directing a flow of stormwater runoff onto the plaintiff’s land, and agreed that the claim for diminution in the value of the land because of the requirement to provide and maintain a habitat for the froglets must fail; but rejected the claim for the cost of water treatment measures. The Court said that while there was a causal connection between the diminution and the conduct complained about, this was not reasonably foreseeable as a consequence of that conduct. 3.23 Interestingly, in Dimitrios Michos v Council of the City of Botany Bay [2012] NSWSC 625, heritage listing of fig trees was not seen as a reason why a claim in nuisance from encroaching tree roots should not succeed, although the argument raised in Gales about protective status under legislation was not directly raised. Although in Dimitrios the court awarded damages and a mandatory injunction for installation of a root barrier, presumably no court order that would result in harm being done to the trees, such as cutting the roots or even removing them, would be effective without the heritage listing being revoked.

Public nuisance 3.24 A public nuisance is some activity that materially affects the reasonable comfort and convenience of a class of people sufficient to be described as a section of the ‘public’;104 for example, emissions of pollution that represent a danger to the health and welfare of citizens. In Baulkham Hills Shire Council v Domachuk (1988) 66 LGRA 110, such a nuisance (in this case odour and flies emanating from a compost heap used for commercial

mushroom growing) was described as a nuisance that is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings to put a stop to it, but that responsibility should be taken on by the community at large. Deposits or discharges of waste matter – for example water, dust or effluvia emanating from trade premises,105 and unclean, unsafe and infested premises106 — may be regarded as public nuisances. [page 83] Pollution of the air or excessive noise in a particular district may also be actionable as public nuisances.107 Such nuisances also commonly arise in relation to interferences on the highway or in relation to public rights of navigation; for example, interference by oil pollution.108 In the United States it has been optimistically, though as yet unsuccessfully, postulated that energy corporations and vehicle manufacturers should be liable in public nuisance for emissions of greenhouse gases.109 The grounds on which such an action may be brought are often identical or very similar to those on which a plea of private nuisance might be based; but the advantage of the action in public nuisance is that, not being limited to infringements of private rights, it is unfettered by notions of possession of land or other proprietary interests, and thus anyone who is affected may complain. The complainant need have no interest in land at all; though frequently, of course, those most affected happen also to be private landowners who could bring an action for private nuisance. Another advantage of the action in public nuisance is that, whereas a private nuisance generally involves some degree of repetition, an isolated act may amount to a public nuisance. 3.25 To complain of a public nuisance, however, plaintiffs must be affected in some way over and above the rest of the public generally. They must show they have suffered some special damage peculiar to themselves by reason of the interference with the public right.110 In Tate & Lyle Industries v Greater London Council [1983] 1 All ER 1159, for example, the plaintiff’s jetty suffered from siltation caused by the council’s dredging works higher upstream. The siltation also caused interference with public rights of navigation on the river through the blocking of various channels. The court held that the plaintiffs had clearly suffered special damage by the commission of this public nuisance. In Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524, the court held open the possibility that pollution of waters which caused the death of fish, thus interfering with the public right to catch those fish, could constitute an

actionable public nuisance; but held that there was no authority to suggest that the deposit of material into waters ‘in such a way that it does not adversely interfere with marine life and is not demonstrated to impede the navigation of the bay by boats amounts to a public nuisance’. In this case, the defendant mining company had formed a sand dune abutting Moreton Bay. Part of the dune slipped into the water carrying with it a large volume of trees, root masses and other vegetation. The plaintiffs were commercial fishermen licensed to take prawns by way of nets. The slippage caused a great deal of damage to the plaintiffs’ nets to such an extent that fishing eventually became uneconomical and the value of lost catches was considerable. [page 84] The plaintiffs claimed they had suffered special loss over and above the public generally by reason of the damage to their nets and the economic loss occasioned by their inability to continue fishing. Ambrose J, however, held that a statutory licence to take fish in a particular way was no different to the right of any other member of the public to catch fish without using nets. In neither case did the right granted involve a further right to have the fishing grounds kept clear of the deposit of the sort of material caused by the slippage in issue. Neither could it be said, in any case, that the deposit of material in fishing grounds that made it more difficult to catch fish interfered with a right of a public nature so as to constitute a public nuisance. 3.26 If a person cannot establish some special interest in order to sue for a public nuisance, then the only way of initiating legal action is by asking the Attorney-General, as guardian of the public interest, to take proceedings, or to grant permission to the plaintiffs to proceed on their own behalf. Since the Attorney-General is also, however, an elected member of the government, proceedings against government agencies are unlikely to be supported very often.111

Multiple nuisances 3.27 To have any chance of success in an action for nuisance, the plaintiff must establish that the interference complained of arose as a result of the respondent’s activities. If the nuisance would have arisen despite the respondent’s activities, then the respondent cannot be held liable.112 The respondent must be shown either to be responsible for the nuisance, or responsible for significant extension of an existing nuisance. This can create

problems in situations involving multiple sources of a nuisance; for example, multiple polluters all emitting the same sort of pollution. The plaintiff has to show that, but for the respondent’s activity, the plaintiff would not have suffered harm. The respondent may claim that the same damage would have occurred to the plaintiff despite the respondent’s activities, because of the nuisances already emanating from other sources. This excuse may, of course, avail each polluter in turn. This form of defence has not impressed the courts. It has accordingly been held that it is no defence to a nuisance action for pollution to prove that the environment was already polluted from another source,113 or that the respondent’s individual actions were not the sole cause of the nuisance.114 In Bonnici v Ku-ring-gai Municipal Council (2001) 121 LGERA 29, for example, the court held that where there is more than one contributor to a nuisance then all are individually liable, even though each contribution [page 85] on its own would be insufficient to ground an action in nuisance.115 A successful action may then force the dischargers to negotiate among themselves to reduce the pollution load to acceptable limits.116

Negligence 3.28 Whereas actions in trespass and nuisance remedy interferences with property rights, the action in negligence is generally used to take action for personal injury and economic loss. In essence, the law of negligence stipulates certain standards of conduct to which people ought to conform in their relationships to one another. These standards may govern potential impacts on the person, property or economic wellbeing of another. Although such impacts may arise out of conduct that adversely affects the environment, for example pollution of a watercourse, it is the harm to personal interests that is actionable at common law, not the harm to the environment itself. Liability in negligence basically depends on whether the respondent owed a duty of care to the person affected, whether a reasonable standard of care had been employed in carrying out or omitting to carry out the activity in question, and whether the damage caused was reasonably foreseeable as a result of that activity or omission. 3.29 The basis of the tort of negligence is that all persons owe a duty of care

to avoid harm to others who might reasonably be foreseen as likely to be affected if activities are carried out, or not carried out, negligently.117 The standard of care expected is one that is reasonable in the circumstances, which means that the more hazardous an undertaking, the higher might be the standard of care required. Indeed, where ultra-hazardous activities are being carried out, the standard of care required may amount almost to a guarantee that no harm will result, which effectively means that if harm does occur then the standard of care cannot have been met.118 Failure to take action, for example failure to warn of environmental dangers such as the risk of contamination of a water supply,119 or of residential land,120 or failure of a [page 86] statutory authority to supply information required for planning purposes,121 may also ground liability in negligence if personal or economic harm results from such failure. In assessing whether the requisite standard of care has been met, evidence of industry practice will be relevant but not conclusive. The courts will not effectively delegate the task of deciding what is a reasonable standard of care to industry or professional groups.122 Indeed, the general practice itself may be shown to be negligent; for example, where industry practice does not keep abreast of increased awareness of dangers and the introduction of new technology that might lessen the risks.123 In determining whether the harm occasioned by an act was foreseeable, so long as the harm suffered is of a type or class of harm that is reasonably foreseeable, it does not matter that the particular harm which eventuates, or precise set of circumstances leading to the harm, was not foreseeable.124 For example, if bodily harm of some kind was foreseeable as a possible consequence of a breach of duty, the defendant will be liable for the actual bodily harm that ensues, no matter how unusual that harm might be, so long as that kind of harm was foreseeable.125 However, if, for example, damage by fouling from an act of pollution is foreseeable, but not damage by fire when the pollutant ignites, then the resulting harm as a result of fire would not be actionable.126 A duty of care then, does not apply to harm that is not of a type or kind that is reasonably foreseeable. 3.30 Loss or damage from negligent acts or omissions that cause environmental harm would generally be expected to take the form of financial loss or personal injury. Decisions of statutory or government authorities are

susceptible to this risk. An example of economic injury is Puntoriero v Water Administration Ministerial Corp (1999) 104 LGERA 419. Potato farmers whose crops had been destroyed by the deliberate addition of chemicals to water used for irrigation, in a bid to tackle infestation of the waterway by bluegreen algae, successfully sued the respondents for their financial loss. The respondents had statutory authority to take or approve such action, but not the authority to carry it out negligently. Contaminated sites127 also have the ability to raise issues of negligence. In Armidale City Council v Alec Finlayson Pty Ltd (1999) 104 LGERA 9, the council was found to have been negligent in giving approval [page 87] for a subdivision over land that was later proved to be contaminated, and damages amounting to several million dollars were ultimately awarded by the High Court.128 In Western Districts Developments Pty Ltd v Baulkham Hills Shire Council [2009] NSWCA 283, the court stressed that whether a public authority is subject to a common law duty of care in carrying out its functions depends, among other things, on the legislation containing the statutory powers or duties. Where statutory provisions require an authority to be satisfied about certain things before exercising a power, and the power is exercised without being so satisfied, then this may indicate want of reasonable care, and potential liability for economic loss to persons who are vulnerable, such as prospective purchasers of subdivided lots. It is not reasonable to require prospective purchasers to take steps to check whether a council has improperly exercised a statutory power. This finding has implications, for example for approval of subdivisions in coastal zones that are potentially subject to impacts from climate change, where consent authorities are directed by legislation to be satisfied about certain matters before giving consent. It should be noted, however, that in this case no defence was argued under the Civil Liability Act 2002 (NSW) (see 3.38), which could weigh on any future argument that cites this case as a precedent in any action against a public authority. 3.31 Economic loss may also, of course, be caused by the negligence of neighbouring landowners as well as by the actions of bureaucracy. In Perre v Apand (1999) 198 CLR 180, a South Australian farmer successfully claimed damages from a neighbour whose negligent conduct had allowed potato wilt to spread onto the plaintiff’s land, denying his ability to sell into the lucrative Western Australian market.129 Also, in Tutton v Walter [1986] 3 WLR 797,

the death of the plaintiff’s bees through spraying of insecticides by a neighbour was held actionable in negligence. 3.32 An example of personal injury arising out of environmental pollution is Ryan v Great Lakes Council (1999) 102 LGERA 123; [2002] HCA 54. Ryan’s case provides a good illustration of the difficulties inherent in determining whether a common law duty of care arises out of the conferment of statutory responsibilities; and, if so, what are the applicable standards for meeting that duty, and how is it decided whether those standards have in fact been met. Early in 1997 there was a surge of reported cases of the Hepatitis A virus (HAV) in New South Wales. Subsequent investigation by a New South Wales Government Task Force attributed 444 of these cases to the consumption of oysters grown in Wallis Lake, on the northern coast. One of the HAV sufferers, Mr Ryan, brought an action in [page 88] negligence in the Federal Court on behalf of himself and nearly 200 other persons130 who had consumed contaminated oysters. The plaintiff also alleged various breaches of the Trade Practices Act 1974 (Cth) relating to the sale of goods of unmerchantable or unsuitable quality. The respondents to this action were the local Great Lakes Council, the state of New South Wales, and the growers and distributors of the oysters. It was established in evidence that oysters grown in the lake had the capacity to collect and concentrate viruses, including HAV. These viruses were present in sewage effluent emitted from several points around the lake. Although the exact source or sources of the contamination could not be precisely identified, contamination of the oysters consumed by Mr Ryan and others had been caused by pollution from these point sources. The depuration system required by the state regulator (the Health Department) was one method used to reduce the presence of human viruses in oysters but it would not remove them completely. This served to underline the necessity for an effective water quality management and monitoring program. Council was aware of deficiencies in the sewerage systems of areas surrounding the lake and its catchment. In particular, council officers were aware of the health significance of septic tank pollution, and of the potential for spread of disease. Council officers were also aware that lack of proper management and maintenance of septic tank systems was resulting in pollution. Significantly, however, council officers had given up investigating complaints of septic tank pollution because of lack of support and direction

from council. By the time of the outbreak of HAV, it appeared that council had got as far as resolving that issues of effluent treatment and disposal should be addressed, but that no concrete action had been taken. 3.33 At first instance the judge, Wilcox J, concluded that all the respondents were aware or ought to have been aware, of the risks to oyster consumers of faecal contamination of the lake, and all had, in various ways, been negligent. Mr Ryan was awarded $30,000 in compensation plus legal costs. All other parties represented by Mr Ryan (184 of them) were, subject to proof of damage, also entitled to be compensated. Appeals against these findings to the Full Court by the State of New South Wales and the growers and harvesters of the oysters were subsequently dismissed; the appeal by the council, however, was successful, a majority of the Full Court131 concluding that, although it was foreseeable that lack of effective action on the part of council might lead to contamination of the water and a danger to consumers of oysters, this did not in itself establish that council was under an actionable duty to take such action. To impose a duty of care on council would be to expose it to potentially unlimited liability on behalf of an indeterminate class of persons (the public generally), since [page 89] council had no control over the numbers of oysters grown and sold. The court held that a duty to take affirmative action in these circumstances should not be imposed on a statutory authority in favour of the public at large; this would be neither fair, nor just nor reasonable. As Lindgren J explained:132 … it would not be an incremental development but a major change of direction in the law if we were to hold that the council owed an actionable duty of care to the oyster consuming public in the circumstances of this case … [I]n my view it is for the High Court, not this court, to take the step of recognising a liability in these circumstances.

In any case, said the court, even if there were a duty of care owed by council to the consumers of oysters, failure to take all steps that were reasonably open to it to minimise faecal contamination of the lake had not been shown to have caused the respondent’s illness. By contrast, the statutory powers vested in the state, specifically with respect to the cultivation of oysters and public health, were clearly for the protection of members of the public who might be consumers of oysters,133 and the failure to carry out those duties properly could foreseeably have caused the injuries that had in fact occurred. 3.34 This interpretation of state liability was, however, subsequently

overruled by the High Court,134 which denied that the State had any duty to consumers that would enable a consumer harmed by eating the oysters to sue for personal injury. The policy was clearly one of self-regulation; the State had not assumed any control over the risks even if it did have powers to act. In the event, the State of New South Wales, which had powers to regulate the oyster growing industry as well as water quality, and indeed did exercise some powers of regulation, was therefore held not to be legally accountable to consumers for the defects in the regulatory scheme. This left the oyster growers to unsuccessfully defend the charges brought in negligence and under the Trade Practices Act. 3.35 Assumption of control can be a crucial issue in grounding liability on government authorities. In Timbs v Shoalhaven City Council (2004) 132 LGERA 397, a council officer who refused consent for tree removal effectively made the council liable for the subsequent death of an occupier when the tree fell on the premises. The crucial issue seems to have been that when the officer took it upon himself to give advice about the safety of the tree, he assumed control of the risk; and that with further consideration, the risk would have become apparent. Similarly, in Shire of Brookton v Water Corporation (2003) 133 LGERA 119, a council was held liable for the consequences of fire escaping from a tip site after an employee had attempted [page 90] to extinguish it, while in South Australia v Simionato [2005] SASC 412, liability in negligence was upheld for plantings of trees and shrubs that took away moisture from the plaintiff’s land that led to damage to the plaintiff’s property. 3.36 The question of control over threats arising from climate change, such as the vulnerability of beachfront landowners and resultant council works to protect against or rehabilitate damage, has also been postulated as one way in which actions in negligence might arise in climate change litigation,135 although the conferment of statutory immunities from such possible liability is likely to be a preferred policy response.136 Of course, success in negligence cases depends on establishing a connection between cause and effect — in other words, proving that the injury was caused by the activity in question — and this is difficult in climate change litigation.137 The question of causation is not necessarily a scientific or philosophical one; however, the particular act or omission that is called into question must be able to be fairly and properly considered a cause, if not necessarily the sole cause,138 of the resultant harm.139 The longer the gap between cause and

effect, or the more incremental the onset of harm, the more difficult it may be to establish causation. This is particularly the case with effects that occur from cumulative impacts or fail to show up for a considerable period of time; scientific evidence becomes increasingly important, therefore, in linking the cause with the effect.140 This might be especially problematic for tort-based climate change litigation.141 3.37 Recent legislative reforms in some jurisdictions have tried, to some extent, to put the brake on any potential liability of public authorities, including councils,142 [page 91] although this legislation seems clearly to be more directed to personal injury claims. The legislation begins by stating that:143 A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

It has been held that this provision effectively restates the common law position outlined in Wyong Shire Council v Shirt (1980) 60 LGRA 106.144 On public authority liability the legislation continues:145 The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies: (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

And for proceedings based on a breach of statutory duty, or wrongful exercise of or failure to carry out a statutory function:146 … an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable that no public or other authority

having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

In Southern Properties (WA) Pty Ltd v Executive Director, Department of Conservation and Land Management [2012] WASCA 79, in which the plaintiffs were claiming damage caused to wine grapes caused by prescribed burning in forests under [page 92] the control of the respondent, the court held that, although statutory duties or powers must be exercised with reasonable care, where, as here, there was no other reasonable method by which the respondents could carry out their statutory duties, and given that the alleged damage had been caused not by the escape of fire, but by secondary smoke effects, the plaintiffs could not succeed. A duty of care would not arise if it might undermine the effectiveness of duties imposed by statute. It was clear from the legislation that conferred duties of prescribed burning that this function was of paramount importance and that the objective of minimising smoke from such burning was subsidiary to the primary objective. 3.38 In New South Wales, similar provisions apply to an exercise of a ‘special statutory power’.147 Since these provisions are expressed to apply to ‘civil liability in tort’,148 ‘claim for damages for harm resulting from negligence’149 or ‘any civil claim for damages for harm’150 where ‘harm’ includes damage to property and economic loss,151 then clearly there is room for judicial expansion of this protection. In Queensland, however, the principles of liability apply only to a duty of care or breach of statutory duty,152 which may suggest that actions in nuisance or trespass are not covered, whereas in New South Wales the provision about ‘special statutory powers’153 applies to ‘proceedings for civil liability’, with no mention of any ‘duty of care’.154 The potential for tort-based climate change litigation, at least in negligence, may be ultimately snuffed out by this or similar statutory exclusions.155

The defence of statutory authority 3.39 With the advent of modern planning and pollution control legislation, activities that would otherwise cause a nuisance at common law are more likely to be conducted in areas zoned by local government for that purpose, and licensed by local government or the relevant environment protection authority (EPA). The general

[page 93] rule is that the mere issue of a permit for development or a licence to emit pollution, and adherence to the conditions of that licence, will not automatically provide a defence to an action at common law. This is because the issue of a licence is an act of executive, not parliamentary, governance, and only parliaments, not bureaucrats, can modify or repeal legal entitlements. This is part of that fundamental principle of democracy referred to in Chapter 2 as the doctrine of the separation of powers. So, whereas compliance with a licence might be a defence under statutory schemes for environmental management, this will cut no ice at common law unless the common law rights have been modified or removed by statute. For example, in Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108, the Forestry Commission was held liable to a downstream landowner for siltation caused by logging operations that detrimentally affected the quality of the water lawfully used by the plaintiff for domestic purposes; while in Lawrence v Kempsey Shire Council (1995) 87 LGERA 49, the plaintiff successfully recovered damages for degradation to his land caused by invasions of nutrient enriched sewerage emanating from the defendant’s sewage treatment works. Both these activities had been licensed by the New South Wales EPA, and in Van Son the Forestry Commission was logging under its own statutory authority, the Forestry Act 1916. However, neither such statutory authority nor the issue of agency licences could extend to nor excuse an unreasonable performance of the permitted activities at common law. In neither of these cases was the statutory authority to log, or to issue licences or approvals, interpreted as allowing the commission of a common law nuisance. Legislation could, of course, because it is superior to the common law in cases of conflict, authorise the commission of common law nuisances and also negligence in the carrying out of licensed or other permitted activities. Persons and public authorities are not immune from actions in nuisance and negligence simply because they are purporting to exercise public statutory functions. However, with the imposition of greater statutory responsibilities on the providers of public services and managers of public resources, parliaments have shown more willingness to exempt statutory authorities from the consequences of their own actions — usually so long as the activities complained of were done ‘in good faith’ in the pursuit of their statutory functions. 3.40 The courts’ attitude to such ‘exemption clauses’ is to treat them

strictly, because they affect common law rights, and as a general rule of statutory interpretation, the courts take the view that common law rights should not be affected, unless by clear or necessary and unambiguous statutory intent. In Brodie v Singleton [2001] HCA 29, a majority of the High Court said at [97]: Statutory provisions which permit public authorities to engage in what otherwise would be tortious or otherwise legally wrongful conduct are disfavoured; they are ‘strictly’, even ‘jealously’, construed.

For example, the Local Government Act 1993 (NSW) s 733 provides that a council will not incur liability in respect of anything done or omitted to be done in good faith by council insofar as it relates to flooding. In Bankstown City Council v Alamdo [page 94] Holdings Pty Ltd (2005) 142 LGERA 1, the High Court held that the phrase ‘not incur any liability’ also operated to exclude liability for injunctive relief, as well as damages, for future possible occurrences arising out of whatever had been done or been omitted to be done.156 The court also approved the interpretation of ‘good faith’ by the Full Court of the Federal Court in Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290 at 468–9: (a) it is unlikely ‘good faith’ will be established merely from evidence that the party relying on the defence acted honestly and without malice; and (b) for the defence to be made out there should be evidence that a real attempt was made to do properly the very thing for which immunity is sought: this may involve following an established system, or set of procedures.

Effectively, therefore, the clause attempts to oust liability in nuisance and negligence for both past and future conduct. 3.41 In Forbes Shire Council v Pace (2002) 124 LGERA 37, the plaintiff’s land had been inundated by flooding from a council-controlled sewage treatment plant, causing damage to crops and fencing that allowed cattle access to contaminated grass. The court held that the clause only extended immunity to the true effects of flooding, not to effects caused by the toxic nature of the discharge. In any event, the court also found that council’s attempts to prevent such occurrences by construction of levee banks had lacked real effort and therefore the requirement that it should have acted in good faith had not been made out.157 In Puntoriero v Water Administration Ministerial Corp (1999) 104 LGERA

419, a clause contained in the Water Administration Act 1986 (NSW) s 19 that exempted the corporation from any action for loss or damage ‘suffered as a consequence of the exercise of a function’ of the corporation was held not to excuse the negligence of the respondent in consenting to the addition of chemicals to water used for irrigation by the plaintiffs, leading to the destruction of their potato crops. The plaintiffs had not been warned of the introduction of the chemicals and continued to irrigate, with disastrous consequences. A majority of the High Court held that this exemption did not operate to excuse all positive acts of the corporation, only those that in the exercise of the corporation’s functions would necessarily involve interferences with persons or their property. The function of supplying water was not such a function; it was more in the nature of a contractual arrangement between the parties. In such a case, general words of immunity should be read down ‘so that they do not apply to functions of an ordinary character performed by the respondent and which are done pursuant to agreements with the consent of private citizens’.158 In any case, the harm had arisen because of a failure to warn the plaintiffs of a danger of which the corporation knew or ought to have known; and that the failure to warn constituted a separate tortious omission, [page 95] rather than being regarded as bound up with the exercise of functions to which the exclusion clause could have applied. 3.42 Puntoriero is a case that displays quite vividly the difficulties facing regulators managing natural resources in circumstances where there is still a deficiency of scientific understanding or appreciation of risk, or at least a reluctance by governments to respond to it — in this case a complex problem of catchment and water management. Climate change will raise the same sort of problems and potential for legal liabilities.159 At its most simple, though, policymakers have a choice: either to excuse the negligence of statutory authorities fulfilling difficult and complex natural resource management (NRM) roles, in circumstances where they may need to ‘experiment’ with responses and methodology, and thus force parties who, through no fault of their own, suffer harm, to bear the loss; or recognise the entitlements of affected parties to claim compensation, if not through the courts, then through a statutorily constructed compensation scheme. Is there any reason why innocent private parties should bear the full brunt of all the risks associated with implementation of public policy? One effect of Punteriero was later nullified by statutory amendment to the

Water Administration Act 2000 (NSW) to cover ‘omissions’ as well as actions;160 but there is still no statutory scheme for compensation for potential harm that might be occasioned to innocent parties, such as the Punterieros, from negligent decision-making by government authorities in the future. 3.43 The breadth of these exclusion clauses, covering acts and omissions and held now to exclude liability for past and future harm, brings into focus the importance of the concept of ‘good faith’. ‘Good faith’ requires a real attempt to discharge the required function; ‘honest endeavour’ rather than ‘honest ineptitude’.161 The legislation may itself indicate that compliance with a guideline or manual will be evidence of good faith;162 but in the absence of such a statement, or relevant compliance, then the court will have to judge this from the circumstances. For example, in Port Stephens Shire Council v Booth (2005) 148 LGERA 351, it was held that a local council that had misled purchasers of land about noise impacts in a resort close to a Royal Australian Air Force base were not allowed to rely on the exemption contained in the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 149(6) for advice ‘provided in good faith’ in a planning certificate. There was [page 96] not a casual act of negligence here, but a systemic failure due to inadequate council practices and council therefore was not entitled to rely on the ‘good faith’ defence. While in Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 143 LGERA 319, where the council tried to rely on the exemption contained in the Local Government Act 1993 (NSW) s 733, discussed above, the New South Wales Court of Appeal held that where the respondent had created the state of affairs that had resulted in a nuisance to the plaintiff (discharge of drainage water onto the plaintiff’s land), then the council’s failure to remedy the situation because of ‘budgetary constraints’ could not readily provide justification on good faith grounds. The court distinguished this from the situation that existed in Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 142 LGERA 1, where the drainage system had become inadequate over time and the High Court had held that without negligence on its part the council was not liable for the nuisance.163 3.44 The defence of statutory authority need not be expressly conferred. The courts have been willing to read it into statutes by implication, having regard to the nature of the functions to be performed by the statutory authority. For example, in Allen v Gulf Oil Refining Ltd [1981] AC 1001, the

respondents had been authorised by statute (the Gulf Oil Refining Act 1965 (UK)) to construct a refinery and associated works. The appellants alleged that the operation of the refinery caused foul odours, vibration and noise; the respondents claimed statutory authority. The Act itself contained no provision expressly exempting Gulf Oil from liability for nuisance in the conduct of its operations. The House of Lords held, however, that the intention of the legislature, in authorising the construction and operation of the refinery, must have been to confer:164 … immunity against proceedings for any nuisance which could be shown … to be the inevitable result of erecting a refinery upon the site … to the extent that the environment has been changed from that of a peaceful unpolluted countryside to an industrial complex … Parliament must be taken to have authorised it.

It is clear, however, that the nuisance must be an inevitable result of the authorised activities;165 and ‘the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense’.166 Harm may be regarded as [page 97] inevitable if the work causing the harm was reasonably necessary, properly performed, and there was no reasonable way of avoiding the harm.167 3.45 Reliance upon a statutory immunity for nuisance will also not extend to negligently carrying out the activity, ‘that word here being used in a special sense so as to require the undertaker, as a condition of obtaining immunity from action, to carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons’.168 The operation of a coal-fired power station that emits large quantities of smoke and gases and thereby causes a nuisance to neighbouring landowners could be said to fall within the implied immunity in nuisance, so long as the station was not being operated in a ‘negligent’ manner.169 The concept of implied immunity could also be applied to the amendments to the Coastal Protection Act 1979 (NSW) that provide for ‘emergency coastal protection works’ to protect private properties from beach erosion or damage to buildings.170 In Byron Shire Council v Vaughan; Vaughan v Byron Shire Council [2009] NSWLEC 88, liability in nuisance for causing damaging impacts on neighbouring properties from allowing temporary protection of a beachside property was alluded to as a distinct possibility. The subsequent amendments to the Coastal Protection Act limit such emergency works to 12

months’ duration; however, in the event that nuisance is caused to neighbouring landowners as a result of the use of this dispensation, an implied immunity might be subsequently argued.171

Statutory schemes for liability 3.46 Another approach is to create a form of statutory liability for nuisance or negligence and thereby capture all the elements of liability within the statutory scheme, thereby displacing common law principles of liability. For example, the Water Act 1989 (Vic) s 157 creates a statutory claim for intentional or negligent conduct in relation to a flow of water that causes damage to property or persons, or causes economic loss. It has been held that this provision does not require that the damage be referable only to the flow of the water as opposed to its chemical composition; and that a case could be brought where the damage was caused by a flow that increased salinity levels in land and water and a consequent fall in production.172 The Biosecurity Act 2015 (NSW) denies civil liability based on a contravention of a provision of the Act, [page 98] although compliance with the Act does not show that a civil obligation otherwise owed has not been breached.173 A statutory scheme may also assist a respondent to defend a charge of negligence. In MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 6) [2011] NSWSC 1613, while accepting that a planning officer assessing an application for development consent owed a duty to the applicant to progress the application in accordance with the statutory scheme, the right to lodge an appeal was considered to be a significant factor in refusing claims of misfeasance in public office (deliberately setting out to cause harm) and negligence lodged against a local council for delays in determining an application for development consent. Similarly, it was said in Mortimer v District Council of Streaky Bay [2014] SADC 75, that the scheme of the Development Act 1993 (SA) and Local Government Act 1999 (SA) was to oust common law liability in negligence for erroneous planning decisions, and that any remedies were limited to those prescribed in the legislation. 3.47 A broader manifestation of this approach is the suggestion that the common law concept of a duty of care should be extended to statutory responsibilities for the environment and natural resources management.174 The common law does not recognise, and never has recognised, of course,

that a duty of care might be owed to the environment per se.175 The introduction of such a duty was recommended by the Industry (now Productivity) Commission to counteract the prevailing tendency of legislation to concentrate more on ‘command and control’ regulation rather than prescribing broad outcomes and conferring appropriate discretionary powers on how to achieve them. According to the commission, introduction of a duty of care would require that individuals who could influence a risk of harm to the environment should take ‘reasonable and practical’ steps to prevent such harm. The duty would be supported, to the maximum extent possible, by voluntary standards, and mandatory standards only where absolutely necessary. This would effectively place greater reliance on self-regulation, with voluntary standards set by reference to codes of practice and environmental management systems (EMS), to demonstrate compliance with the duty. 3.48 Response to the recommendation for an all-encompassing duty of care to be introduced into legislation has been mixed. While most commentators accept the philosophy, many are nervous about how such a concept could be translated into legislation.176 A number of agencies, however, called for the duty of care to be made explicit in law. For example, the Sustainable Land and Water Resource Management [page 99] Committee recommended that a statutory duty of care should apply to harm that might be caused to both those who are living at present, and those yet to be born.177 This is a reflection of the principle of sustainable development known as intergenerational equity.178 If a statutory duty of care were to be introduced, the committee proposed that resource users who employed practices inconsistent with a duty of care would have to be responsible for making good any damage incurred as a result of their actions, be those damages on- or off-site. 3.49 In relation to ecologically sustainable development (ESD), Gardner179 has suggested that the proposed duty of care should be subject to the objectives of ESD, expressed as the objects of the legislation. The duty to take reasonable and practicable measures could then only be fulfilled if the principles of ESD were also met. Where the precautionary principle was triggered, then reasonable and practicable measures would need to comply with this principle. Gardner did, however, advocate an approach to regulatory instruments

similar to that adopted by the Productivity Commission — that is, performance-based planning for natural resources management rather than prescription, together with the introduction of a wide range of management tools from which managers could pick the most appropriate for achieving the objectives of the legislation. This is an approach that has also been strongly supported by other commentators.180 3.50 A limited statutory duty of care has already found its way into some pollution control legislation, where it may operate as a defence to a charge of unlawful pollution; or failure to comply with the duty may justify the service of administrative orders for clean-up or remediation. For example, the Environmental Protection Act 1994 (Qld) s 319 introduces a ‘general environmental duty’: A person must not carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all reasonable and practicable measures to prevent or minimise the harm.181

A breach of the duty will not, however, of itself, constitute neither a criminal offence under the Act nor give rise to a civil right or remedy.182 The main response to a breach [page 100] will be administrative — the issue of an environmental protection order to secure compliance.183 Compliance with the duty, however, in carrying out activities that are otherwise lawful apart from this Act, will constitute a defence to breaches of the Act;184 and compliance with the duty may be shown by compliance with approved codes of practice, or relevant policies or authorisations.185 3.51 Introduction of a more positive duty on land managers for management of natural resources has also been postulated as a means of encouraging sustainable land management.186 Such a legal duty has now begun to appear in legislation that governs management of natural resources. The Land Act 1994 (Qld) s 199, for example, lists a number of positive measures that occupiers of Crown land must take to comply with the duty of care. An occupier must take ‘all reasonable steps’ to: (a) avoid causing or contributing to land salinity that (i)

reduces its productivity; or

(ii) damages any other land; (b) conserve soil; (c) conserve water resources;

(d) protect riparian vegetation; (e) maintain pastures dominated by perennial and productive species; (f)

maintain native grassland free of encroachment from woody vegetation;

(g) manage any declared pest; (h) conserve biodiversity.

These provisions, of course, apply to lessees and others in occupation of Crown land;187 they do not apply to private land management. Other legislation is, however, beginning to apply similar duties to management of private natural resources,188 associated waterways,189 cultural heritage190 and to animals.191 The Natural Resources Management Act 2004 (SA) s 9 provides: (1) A person must act reasonably in relation to the management of natural resources within the state.

[page 101] (2) In determining what is reasonable for the purposes of subsection (1), regard must be had, amongst other things, to the objects of this Act, and to – (a) the need to act responsibly in relation to the management of natural resources, and the potential impact of a failure to comply with the relevant duty; and (b) any environmental, social, economic or practical implications, including any relevant assessment of costs and benefits associated with a particular course of action, the financial implications of various measures or options, and the current state of technical and scientific knowledge; and (c) any degrees of risk that may be involved; and (d) the nature, extent and duration of any harm; and (e) the extent to which a person is responsible for the management of natural resources; and (f)

the significance of the natural resources, including in relation to the environment and to the economy of the state (if relevant); and

(g) the extent to which an act or activity may have a cumulative effect on any natural resources; and (h) any pre-existing circumstance, and the state or condition of the natural resources.

3.52 However, like the pollution control legislation cited above, legislation that imposes such duties on land managers also makes it clear that breach of the duty will not, on account of that breach alone, be subject to any criminal or civil legal enforcement.192 The duty of care is to be implemented basically by way of administrative orders for management or action plans, and environment protection or reparation orders, including orders made by an appropriate court or tribunal.193 For example, under the Land Act 1994 (Qld)

s 214, the minister may give a lessee or licensee of Crown land a written notice to take remedial action if the lessee or licensee is using the lease or licence: (a) beyond its capability for sustainable production; and (b) in a way not fulfilling the lessee or licensee’s responsibility for a duty of care for the land; and (c) in a way likely to cause, or has caused, permanent or serious land degradation.

A person will not be in breach of the duty, of course, if compliance with some existing management or licensing regime can be demonstrated;194 and may offer as a defence compliance with a best practice method or standard or applicable guidelines.195 The effect of development on the ability to carry out a general duty of care may also become a mandated relevant consideration that a planning authority must consider before issuing a development consent.196 [page 102]

Common law remedies 3.53 Plaintiffs in common law actions based on nuisance, trespass or negligence, generally seek damages as compensation for their losses, and, to prevent continuation or re-emergence of the contested activity, an injunction to restrain future conduct. Although an issue of an injunction lies within the discretion of the court,197 it was stated by Lord Evershed MR in Pride of Derby Angling Association v British Celanese Ltd [1953] Ch 149 at 181: It is, I think, well settled that if A proves that his proprietary rights are being wrongfully interfered with by B, and that B intends to continue his wrong, then A is prima facie entitled to an injunction and he will be deprived of that remedy only if special circumstances exist, including the circumstance that damages are an adequate remedy for the wrong that he has suffered.

Where an activity may continue to cause harm until a court hearing resolves the issue, a plaintiff may seek an interim or interlocutory injunction to bring about an immediate cessation of the contested activity until a hearing can be scheduled; however, this may be subject to a requirement that the plaintiff give an undertaking to pay damages to the respondent for the respondent’s losses should the plaintiff not be successful in the final court hearing. Since these common law remedies, apart from damages, are available also to plaintiffs seeking civil enforcement of statutory breaches of

environmental laws, more detailed discussion of these remedies will be found in Chapter 21.

Alternatives to common law actions 3.54 Where a person is seeking damages as compensation for personal or economic losses or damage to property, there is really no alternative to a common law action. Occasionally, but unusually, legislation may allow a civil claim to be raised in or engrafted onto criminal proceedings,198 but this will of course depend on criminal proceedings being commenced, usually by a government regulator. Even more unusually, legislation may establish a right to make a civil claim irrespective of whether a contravention was a criminal offence or contravened a civil penalty provision.199 Where cessation of the activity is the primary motivating factor, however, then an action for nuisance is probably the least effective option, at least until other avenues have been exhausted. For example, where the harm being suffered is due to some polluting interference then it is likely also to be a contravention of legislation that prohibits unlicensed pollution, in which case a report to the appropriate regulatory authority (state or local authority) may well trigger the desired action. Where a nuisance is being suffered as a result of licensed emissions, of course, the regulatory authority may still be willing to review [page 103] the conditions of the licence, although in this case the plaintiff may ultimately have to resort to an action in nuisance. Unless a nuisance is being caused by a local government body, abatement of private nuisances by neighbouring landowners may also be effectively achieved by the issue of orders or notices issued by local councils under powers contained in local government legislation. These may include, for example, powers to serve notices for the prevention or repair of environmental damage being caused by drainage works, obstruction of watercourses, or by reason of the flow of water across land; and to remove and dispose of waste.200 Where public, rather than private, nuisance is the issue it should not be forgotten that local councils usually also have extensive powers to abate or order the abatement of public or ‘statutory’ nuisances.201

1.

For further discussion about native title, see 2.8.

2.

For a discussion of the ‘Crown’, see 2.7.

3.

See generally Bradbrook, ‘The Relevance of the Cujus Est Solum Doctrine to the Surface Landowner’s Claims to Natural Resources Located Above and Beneath the Land’ (1988) 11 Adel LR 462.

4.

For example, in Bernstein v Skyviews and General Ltd [1977] EWHC QB 1, it was held that the action in trespass was limited to the height at which it was contemplated that an owner might be expected to make use of the airspace as a natural incident of the use of his or her land. For further discussion of trespass and other common law actions, see 3.19 and following.

5.

See 3.18 and following.

6.

See the useful article by Fisher, ‘Rights of Property in Water: Confusion or Clarity’ (2004) 21 EPLJ 200.

7.

And see Macguire and Phillips, ‘The Role of Property Law in Environmental Management: An Examination of Environmental Markets’ (2011) 28 EPLJ 215 at 223. As to compensation for acquisitions of ‘property’, see 2.16.

8.

This may be how non-proprietary interests such as licences may be distinguished from property, though the lines are considerably blurred: see Commonwealth v WMC Resources Ltd (1998) 152 ALR 1 and South Australian River Fishery Association v South Australia [2003] SASC 174; (2003) 126 LGERA 122 (SASCFC), discussed at 2.21.

9.

See Sax, ‘Some Thoughts on the Decline of Private Property’ (1983) 58 Wash LR 481; Boer and James (eds), Property Rights and Environment Protection, Environment Institute of Australia, Canberra, 1990.

10. See Ryan, ‘Freedom of Property — An Urban Planning Perspective’ (1988) 11 UNSWLJ 48. 11. ‘English Law: The New Dimension’, Pt IV, The Challenge of the Environment, Stevens, London, 1974, p 59. 12. Embrey v Owen (1851) 6 Exch 353. 13. See Walden v Hensler (1987) 163 CLR 561. 14. See further Chapter 17. 15. See 2.13 and following. 16. See generally Walrut, ‘The Public Rights to Use the Sea and Rivers’ (2003) 20 EPLJ 423. 17. Beckett v Lyons [1967] Ch 449. 18. Attorney-General (British Columbia) v Attorney-General (Canada) [1914] AC 153; Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524. 19. See Hardin, ‘The Tragedy of the Commons’ (1968) Science, 162, 1243–8, reproduced at . 20. The transition from ‘common property’ to ‘public property’ occurs at this time: see Yandle, ‘Resource Economics: A Property Rights Perspective’ (1983) 5 JELP 1. A right of common is one conferred on members of a group who have common access to the exclusion of everyone else; a public right is available to any member of the public. Scarcity is the catalyst for government intervention, converting the right from one of common to a public right that can be controlled by government on behalf of the public. The allocation of rights to use that public resource may then create rights in the licence holder analogous to rights of private property in that others may be excluded. 21. For further discussion of the concept of the Crown, see 2.7. 22. See, for example, Fisheries Act 1995 (Vic) s 10; Water Management Act 2000 (NSW) s 392; National Parks and Wildlife Act 1974 (NSW) (NPWA) s 97; Nature Conservation Act 1992 (Qld) ss 7, 56, 83 and 84; Mineral Resources Act 1989 (Qld) s 8. The Fisheries Act 1995 (Vic) s 10 even

goes so far as to boldly assert that the Crown ‘owns all wild fish and other fauna and flora found in Victorian waters’. The precise nature of the control asserted by the Crown in relation to fauna in Queensland was comprehensively considered by the High Court in Yanner v Eaton (1999) 105 LGERA 71, discussed at 2.13. See also Fisher, ‘Rights of Property in Water: Confusion or Clarity’ (2004) 21 EPLJ 200. 23. Harper v Minister for Sea Fisheries (1989) 168 CLR 314 at 335. 24. On the ability of a fisheries law to confer rights of access to licence holders in respect of waters within the boundaries of a fee simple held by an Aboriginal land trust, see Northern Territory v Arnhem Land Aboriginal Land Trust [2008] HCA 29. 25. See 7.21. 26. For example, Mineral Resources Act 1989 (Qld) Pt 7 (mining leases). 27. For example, Crown Lands Act 1989 (NSW) Pt 4 Div 3. 28. See Tooher, ‘Restrictive Covenants and Public Planning Legislation’ (1992) 9 EPLJ 63. 29. See, for example, Townsville Port Authority v Max Locke, Registrar of Titles [2004] QCA 294 (attempt to create covenants to guard against possible future nuisance claims arising from interference with amenity in a harbour development). 30. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 28. And see Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27, in which a planning instrument that purported to suspend the effect of a restrictive covenant was declared to be of no effect because the procedural steps necessary to do that had not all been complied with. 31. See 7.46. 32. See, for example, Unimin Pty Ltd v Commonwealth (1974) 22 FLR 299; Corporate Affairs Commission v ASC Timber Pty Ltd [1989] 18 NSWLR 577. 33. Harper v Minister of Sea Fisheries (1989) 168 CLR 314 per Brennan J at 335; Conveyancing Act 1919 (NSW) s 88AB (forestry right deemed to be a profit à prendre). 34. Threatened Species Conservation Act 1995 (NSW) Pt 7A; and see further 13.58. 35. See O’Connor et al, ‘From Rights to Responsibilities: Reconceptualising Carbon Sequestration Rights in Australia’ (2013) 30 EPLJ 403. 36. It has been argued that interactions between the various traditional and statutory property interests may create legal complexities that do not efficiently account for the interconnected network of private and public rights; see Martin et al, ‘Environmental Property Rights in Australia: Constructing a New Tower of Babel’ (2013) 30 EPLJ 531. 37. See Hepburn, ‘Carbon Rights as New Property: The Benefits of Statutory Verification’ (2009) 31(2) Sydney Law Review 239. 38. Conveyancing Act 1919 (NSW) s 88AB; Forestry Act 1959 (Qld) s 61J(5); Forest Property Act 2000 (SA) s 12 (registered forest property agreement); Forestry Rights Registration Act 1990 (Tas) s 5; Carbon Rights Act 2003 (WA) s 6 (registered carbon agreement). 39. See Parry, ‘A Property Law Perspective on the Current Australian Carbon Sequestration Laws, and the Green Paper Model’ (2010) 36(1) Monash University Law Review 321. And see further Chapter 18. 40. For further discussion on the nature of statutory entitlements, see 7.38 and following. 41. See Malone v Laskey [1907] 2 KB 141. 42. See Bond and Farrier, ‘Transferable Water Allocations; Property Right or Shimmering Mirage?’ (1996) 13 EPLJ 213.

43. See Australian Fisheries Management Authority v Graham [2003] FCA 231. 44. See, for example, Fisheries Management Act 1991 (Cth) s 48; Water Management Act 2000 (NSW) s 71M. 45. For further discussion on access to water, see Chapter 17. And see Pye, ‘Water Trading Along the Murray: A South Australian Perspective’ (2006) 23 EPLJ 131; Mckenzie, ‘Water Rights in NSW: Properly Property?’ (2009) 31(3) Sydney Law Review 443. 46. See 2.54. 47. See, for example, Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27 (powers to remove private restrictive covenants to implement public planning purposes). 48. See further 19.37 and following. 49. For example, Water Management Act 2000 (NSW) s 393; Water Act 1989 (Vic) s 8(7). 50. For example, Water Management Act 2000 (NSW) s 52; Water Act 1989 (Vic) s 8. 51. For further discussion about access to water, see 17.20 and following. 52. The jurisdiction of the New South Wales Land and Environment Court (NSWLEC) also extends under Pt 2A of the Act to resolving neighbour disputes about high hedges that block sunlight or views on neighbouring properties. The court must be satisfied that the applicant for relief has made a reasonable effort to resolve the matter with the owner of the land on which the hedge is situated. To support enforcement of court orders in respect of high hedges, local councils may recover costs of trimming or removing any trees plus a prescribed administration fee. 53. See 3.19 and following. 54. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 5. The definition of ‘tree’ in the Act is more restrictive than the common law concept. The tenor of the Act is also to base liability on ‘fault’; just because a tree falls over this does not mean that the respondent is automatically liable for the damage it causes. Remedies under the Act are more restrictive than the common law; damage to property would be actionable but not economic loss: see Robson v Leischke [2008] NSWLEC 152. 55. Robson v Leischke (2008) 159 LGERA 280. A claim in trespass or negligence would have to be taken to the Supreme Court. On the remedies of nuisance, trespass and negligence, see 3.18 and following. 56. See 3.40 and following. 57. See, for example, Rushcutters Investments Pty Ltd v Water Board of New South Wales (1989) 68 LGRA 128; Flynn v Whitehouse (1989) 68 LGRA 275. 58. For example, Environment Protection Act 1997 (ACT) s 9; Protection of the Environment Operations Act 1997 (NSW) s 322; Water Act 1992 (NT) s 17(1); Environmental Protection Act 1994 (Qld) s 21; Environment Protection Act 1993 (SA) s 8; Environmental Management and Pollution Control Act 1994 (Tas) s 10; Environment Protection Act 1970 (Vic) s 65(1). In the Northern Territory, legislation expressly provides a statutory defence to common law actions for licence holders who are complying with the terms of that licence; however, this is not usual. As explained in Chapter 2 (see 2.5), such a provision essentially risks contradicting fundamental principles of the doctrine of the separation of powers. Frequently, the provisions of environmental legislation are also expressed to take precedence over inconsistent provisions in any other legislation (see [7.16]), which means that enactments that preserve the right to take common law actions would be effective in those circumstances despite any attempts to remove them in other legislation. 59. See 3.19 and following. 60. See generally Cane, ‘Are Environmental Harms Special?’ (2001) 13 JEL 3.

61. For discussion on the nature of civil remedies, see further Chapter 21. 62. See further Chapter 20. 63. For example, Hill v Higgins [2012] NSWSC 270 (minor encroachment of retaining wall and deposit of bricks). 64. Southport Corporation v Esso Petroleum Co Ltd [1954] 2 All ER 561 (CA); Esso Petroleum v Southport Corp Co Ltd [1956] AC 218 (HL); Pride of Derby Angling Association v British Celanese Ltd [1953] Ch 149; but compare Jones v Llanrwst Urban District Council [1911] 1 Ch 393 where material deposited on land by the normal flow of a river was held to constitute a trespass. For a more unusual form of nuisance, see Wilks, ‘Private Nuisance from Errant Golf Balls’ (1999) 16 EPLJ 149, and for a case of nuisance from errant golf balls, see Challen v The McLeod Country Golf Club [2004] QCA 358. 65. Fitzgerald v Firbank [1897] 2 Ch 96 at 97. 66. Nicholls v Ely Beet Sugar Factory [1931] 2 Ch 84 at 87. 67. As Williams and Hepple, Foundations of the Law of Tort, Butterworths, London, 1976, p 35 said, ‘if the facts on which the plaintiff’s claim is founded cannot be fitted into any of the old forms of action, one is on the way to saying that the plaintiff has no remedy’. 68. For example, in Port Stephens Shire Council v Tellamist Pty Ltd (2004) 135 LGERA 98, which concerned a case of trespass involving removal of trees, the court indicated that unless some diminution of the value of the land had occurred as a result of the unlawful trespass, then only nominal damages would be awarded. 69. Walter v Selfe [1851] EngR 335; (1851) 4 De G & Sm 315 at 322; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 at 486. 70. Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128 at 295. 71. Bamford v Turnley (1862) 3 B & S 66 at 83–4; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 at 487. See also Hill v Higgins [2012] NSWSC 270. 72. See 3.29 and following. 73. Fleming, Law of Torts, Butterworths, Sydney, 1987 once, rather optimistically, described the law of nuisance as ‘the common law’s contribution to environmental protection’. 74. Kraemers v Attorney-General (Tas) [1966] Tas SR 113 at 125; Smythe v Shire of Arapiles (1984) 16 APA 85. 75. See Hoxton Park Residents’ Action Group Inc v Liverpool City Council [2010] NSWSC 1312 (incorporated association not owning or leasing land in vicinity of claimed nuisance denied standing to pursue claim). 76. Hall v Beckenham Council (1949) 1 KB 716. This does not, however, generally make a landlord liable for nuisance caused by tenants unless the landlord expressly authorises the nuisance or it is close to certain when the landlord enters into the lease that a nuisance will ensue: see Peden Pty Ltd v Bortolazzo [2006] QCA 350. 77. An occupier may adopt a nuisance, for example, by making use of the object that constitutes the nuisance: Ikic v Evans (1989) 7 BCL 114. In Proprietors of Strata Plan No 14198 v Cowell (1991) Aust Torts Reports 81-083, it was held that a person who acquires land after trees have been planted on that land is not liable for nuisance caused by the roots of the trees unless the nuisance is adopted or continued. 78. Per Gillard J at [243]. See also Spencer v Australian Capital Territory [2007] NSWSC 303; Robson v Leischke [2008] NSWLEC 152. 79. Young v Bankier Distillery; Almhirst v Spencer (1884) 14 LTOS 433; Ridge v Midland Railway Co (1888) 53 JP 55; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482; Harkess v Woodhead

[1950] SASR 54. 80. McKell v Rider (1908) 5 CLR 480; Field v South Australian Soccer Association [1953] SASR 224; Pride of Derby Angling Association v British Celanese Ltd [1953] Ch 149. 81. Tipping v Eckersley (1855) 2 Kay & J 264. 82. Lillywhite v Trimmer (1867) 16 LT 318. 83. Fitzgerald v Firbank [1897] 2 Ch 96; Pride of Derby Angling Association v British Celanese Ltd [1953] Ch 149; Nicholls v Ely Beet Sugar Factory [1931] 2 Ch 84. 84. Halsey v Esso Petroleum [1961] 2 All ER 145; Bamford v Turnley (1862) 3 B & S 66; McKell v Rider (1908) 5 CLR 480; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482. 85. Field v South Australian Soccer Association [1953] SASR 224; Randwick Municipal Council v Henderson (1930) 10 LGR 18; Haddon v Lynch [1911] VLR 230; Halsey v Esso Petroleum, note 84 above. Landlords may also be liable for noise caused by tenants, where as a necessary and natural consequence of giving consent, express or implied, to the use of land, a noise nuisance would result: Tetley v Chitty [1986] 1 All ER 663 (land leased by local authority for go-kart racing). 86. Halsey v Esso Petroleum, note 84 above. 87. Pride of Derby Angling Association v British Celanese Ltd [1953] Ch 149. 88. Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31; Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128. See also Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248. 89. Robson v Leischke [2008] NSWLEC 152; Malliate v Sharpe [2001] NSWSC 1057; Dimitrios Michos v Council of the City of Botany Bay [2012] NSWSC 625; Valherie v Strata Corporation No 1841 [2004] SASC 170. See also South Australia v Simionato [2005] SASC 412. 90. St Helens Smelting Co v Tipping (1865) 11 HL Cas 642. 91. McKell v Rider (1908) 5 CLR 480; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482; Halsey v Esso Petroleum [1961] 2 All ER 145; Harkness v Woodhead [1950] SASR 54; Munro v Southern Dairies Ltd [1955] VLR 332; Field v South Australian Soccer Association [1953] SASR 224. 92. Day v Pinglen (1981) 34 ALR 545; Kent v Minister for Works [1973] 2 ACTR 1; see also Gillespie, ‘Private Nuisance as a Means of Protecting Views from Obstruction’ (1989) 6 EPLJ 94. 93. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479. 94. Bathurst City Council v Saban (No 2) (1985) 58 LGRA 201. Local government legislation, however, may give local councils powers to deal with unsightly land or structures: see, for example, Local Government Act 1934 (SA) s 666b. 95. Hill v Higgins [2012] NSWSC 270. 96. See further Chapter 10. 97. Ridge v Midland Railway Co (1888) 53 JP 55. 98. Munro v Southern Dairies Ltd [1955] VLR 332 at 335 per Scholl J quoting with approval Greene MR in Andreae v Selfridge & Co Ltd [1937] 3 All ER 255 at 261. 99. Halsey v Esso Petroleum [1961] 2 All ER 145; Dunstan v King [1948] VLR 269; Harkness v Woodhead [1950] SASR 54; Wherry v KB Hutcherson Pty Ltd (1987) Aust Torts Reports 80-107; McFadzean v Construction Forestry and Mining Energy Union [2007] VSCA 289. 100. Dunstan v R [1948] VLR 269; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482; Munro v Southern Dairies Ltd [1955] VLR 332; Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108. 101. Halsey v Esso Petroleum [1961] 2 All ER 145; L’Estrange v Brisbane Gas Co [1928] St R Qd 180; St

Helens Smelting Co v Tipping (1865) 11 HL Case 642; Harris v Carnegie’s Pty Ltd [1917] VLR 95. 102. See Gales Holdings Pty Ltd v Tweed Shire Council [2006] NSWLEC 85. 103. See Gales Holdings Pty Ltd v Tweed Shire Council [2008] NSWLEC 209. 104. Local Government Act 1993 (NSW) s 125. This definition reflects the common law definition of public nuisance. 105. Smythe v Shire of Arapiles (1984) 16 APA 85. 106. Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201; Wollongong City Council v Richardson (1989) 67 LGRA 423. 107. Attorney-General v PYA Quarries Ltd [1957] 2 QB 169. 108. Southport Corporation v Esso Petroleum Co Ltd [1954] 2 All ER 561 (CA); Esso Petroleum v Southport Corp Co Ltd [1956] AC 218 (HL); Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617; Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509; York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983] 1 NSWLR 391. 109. Connecticut v American Electric Power 406 F Supp 2d 265 (SDNY) 2005; People of the State of California v General Motors Corp (2007) WL 2726871 (N D Cal). Both cases were dismissed as raising issues that were not justiciable; emissions of carbon dioxide raised complex matters of policy that were for governments, not the courts, to resolve. 110. Walsh v Ervin [1952] VLR 361; Deepcliffe Pty Ltd v Council of the City of Gold Coast [2001] QCA 342. 111. Such actions were not uncommon in the United Kingdom, particularly in the nineteenth century, but the Attorney-General in Britain performs a non-political role. One example of this sort of action in Australia is Attorney-General v Board of Water Supply and Sewerage (1916) 16 SR (NSW) 437, in which an injunction was issued on behalf of the Attorney-General of New South Wales against a sewage farm for emitting offensive and unhealthy odours; see also Attorney-General v Brisbane City Council [1988] 1 Qd R 346. 112. Nalder v Commissioner for Railways [1983] 1 Qd R 620. 113. Attorney-General v Leeds Corp (1870) 5 Ch App 583; Wood v Sutcliffe (1851) 2 Sim NS 163. 114. Nixon v Tynemouth Sanitary Authority (1888) 52 JP 504; Blair v Deakin (1882) 57 LJ 522; City of Footscray v Maize Products Pty Ltd (1943) 67 CLR 301 at 312. 115. Pride of Derby Angling Association v British Celanese Ltd [1952] 1 All ER 1326. 116. See Ogus and Richardson, ‘Economics and the Environment: A Study of Private Nuisance’ (1977) CLJ 284 at 301. 117. It is notoriously difficult, however, to conceptualise or predict when exactly one person will owe a duty of care to another. High Court judges have applied differing tests to determine the existence of such a duty. In Ryan v Great Lakes Council; Graham Barclay Oysters Pty Ltd v Ryan, discussed at 3.33–3.35, the concept of ‘control’ over the identified risks of harm was an important factor. See also Swanton and McDonald, ‘Liability in Negligence for Pure Economic Loss’ (2000) 74 ALJ 17. 118. Burnie Port Authority v General Jones Pty Ltd (1994) 120 ALR 42. 119. Scott-Whitehead v National Coal Board (1987) 53 P & CR 263; Puntoriero v Water Administration Ministerial Corp (1999) 104 LGERA 419 (failure of water supply authority to warn of chemical additives introduced to combat blue-green algal contamination). Brunton, ‘Beach Pollution in Sydney: The Legal Issues’ (1991) 8 EPLJ 232 at 239 has suggested that statutory authorities responsible for sewage discharges could also breach duties of care owed to local communities by, for example, failing to reveal the health risks of bathing at beaches affected by pollution.

Alec Finlayson Pty Ltd v Armidale City Council (1994) 84 LGERA 225; Armidale City Council v Alec 120. Finlayson Pty Ltd (1999) 104 LGERA 9 (failure of local authority to consider economic risks consequent on approving residential development on contaminated land). 121. L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225. 122. F v R (1983) 33 SASR 189 per King CJ at 194; see also Thompson v Johnson & Johnson Pty Ltd [1991] 2 VR 449 at 494; Young v Northern Territory (1992) 107 FLR 264 at 271. 123. Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] 1 All ER 881 (employers failing to provide employees with adequate protection against noise). 124. Chapman v Hearse (1961) 106 CLR 112; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383. 125. Determining the kind of harm that is foreseeable is not, of course, always an easy task. For example, in Tremain v Pike [1969] 3 All ER 1303, a farmhand contracted a rare disease through coming into contact with rat’s urine. The court held that although other types of complications might be foreseen as a result of contact with rats, this injury was not of a kind that could be foreseen. On the other hand, in Bradford v Robinson Rentals [1967] 1 All ER 267, an employee who suffered frostbite was able to recover since foreseeable injuries were said to encompass cold and chilblains. 126. The Wagon Mound (No 1) [1961] AC 388; The Wagon Mound (No 2) [1967] 1 AC 617. 127. See further Chapter 16. 128. See also Noor Al Houda Islamic College Pty Ltd v Bankstown Airport Ltd [2005] NSWSC 20. 129. See also Marsh v Baxter [2014] WASC 187 (unsuccessful actions in nuisance and negligence for financial injury asserted by an organic farmer against his neighbour, who lawfully worked his land to plant and harvest a genetically modified vegetable seed crop). The court concluded that Baxter could not be held responsible just for growing a GM crop in a conventional way; that wind blowing some swathes of canola onto Marsh’s property was not intentional, and that Baxter was not to be held responsible as a broadacre farmer merely for growing a lawful GM crop and choosing an entirely orthodox harvesting method. 130. An action (generally referred to as a class or representative action) may be brought by one member of a class of persons on behalf of all members of the class who have suffered similar harm from the same wrong. Essentially, the class action is a procedure that will assist the court, where there are numerous plaintiffs, in establishing the legal liability of the respondent, after which each party must establish the nature and extent of their own harm to claim a remedy; see, for example, Federal Court of Australia Act 1976 Pt 4A; Federal Court Rules Order 73. 131. Graham Barclay Oysters Pty Ltd v Ryan (2000) 109 LGERA 1. 132. Graham Barclay Oysters Pty Ltd v Ryan (2000) 109 LGERA 1 at 110. 133. Responses by the New South Wales government following this outbreak included the passage of the Local Government (Approvals) Amendment Regulation 1998, under which performance standards for sewage management are specified and approval is required for the operation as well as the installation of sewage systems. See also ‘On-site Sewage Management for Single Households’, Environment and Health Protection Guidelines, New South Wales Government, 1998; and Local Government Circulars 98/28 and 98/60. 134. Graham Barclay Oysters Pty Ltd v Ryan (2002) 125 LGERA 1. 135. McDonald, ‘A Risky Climate for Decision-making: The Liability of Development Authorities for Climate Change Impacts’ (2007) 24 EPLJ 405 at 413. 136. See 3.40. 137. See 18.45. 138. It will suffice that the respondent made a ‘material contribution’ to the causation of the harm: March v Stramare (1991) 171 CLR 506; Chappel v Hart (1998) 195 CLR 232. Note, however, the

uncertain effect of statutory introductions of concepts of causation in ‘civil liability’ legislation, discussed briefly at 3.38–3.39; for example, Civil Liability Act 2002 (NSW) s 5D; Civil Liability Act 2003 (Qld) s 11; Wrongs Act 1958 (Vic) s 51. 139. Chappel v Hart (1998) 195 CLR 232. 140. See, for example, Premier Building and Consulting Pty Ltd v Spotless Group Ltd [2007] VSC 377. See also Cashman, ‘Torts’, in Bonyhady (ed), Environmental Protection and Legal Change, Federation Press, Sydney, 1992, p 125; ‘Toxic Tort Disputes: Proof of Causation and the Courts’ (1992) 9 EPLJ 302 at 312; Fowler, ‘A Comparative Analysis of Liability for Environmental Damage’ (1990) 7 EPLJ 271 at 275–6. 141. See Grossman, ‘Warming Up to a Not-so-radical Idea: Tort Based Climate Change Litigation’ (2003) 28 Columbia Journal of Environmental Law 1; Kerr, Tort Based Climate Change Litigation in Australia, paper presented at the Climate Change Litigation Forum, London, March 2002; Lipmand and Stokes, ‘Shifting Sands: The Implications of Climate Change and a Changing Coastline for Private Interests and Public Authorities in Relation to Waterfront Land’ (2003) 20 EPLJ 406; McDonald, ‘A Risky Climate for Decision-making: The Liability of Development Authorities for Climate Change Impacts’ (2007) 24 EPLJ 405. 142. For example, Civil Liability Act 2002 (NSW); Civil Liability Act 2003 (Qld). 143. Civil Liability Act 2002 NSW s 5B(1); Civil Liability Act 2003 (Qld) s 9. 144. Council of the City of Greater Taree v Wells [2010] NSWCA 147. 145. Civil Liability Act 2002 (NSW) s 42; Civil Liability Act 2003 (Qld) s 35; Civil Liability Act 2002 (WA) s 5W. In Cohen v City of Perth [2000] WASCA 306, the plaintiff succeeded in establishing breach of a statutory duty not to cause noise pollution. The relevant provisions under the Environmental Protection Act 1986 (WA) were held to be for the benefit of individuals, not just the general public. This case however pre-dates the Civil Liability Act 2002 (WA). 146. Civil Liability Act 2002 (NSW) s 43; Civil Liability Act 2003 (Qld) s 36. And see Electro Optic Systems Pty Ltd v New South Wales [2014] ACTCA 45 (no liability for escape of fire ignited by lighting strike in national park). 147. Civil Liability Act 2002 (NSW) s 43A. A ‘special statutory power’ is a power: (a) that is conferred by or under a statute; and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority (s 2). 148. Civil Liability Act 2002 (NSW) s 40. 149. Civil Liability Act 2002 (NSW) s 5A. 150. Civil Liability Act 2003 (Qld) s 4. 151. Civil Liability Act 2002 (NSW) s 5; Civil Liability Act 2003 (Qld) Dictionary Sch 2. 152. Although the Civil Liability Act 2003 (Qld) s 36 does not specifically refer in the text to breach of duty the title of the section refers to breach of statutory duty. On the other hand, the text refers to a function and a function includes a power (s 34). 153. Civil Liability Act 2002 (NSW) s 43A. 154. In Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128, the court was prepared to assume that the provisions of s 43A applied to claims in nuisance, even though the tenor of the legislation was clearly directed to claims in negligence; but rejected the council’s claim to be able to rely on this defence on the basis of unreasonable conduct. 155. See Chapter 18; and McDonald, ‘A Risky Climate for Decision-making: The Liability of Development Authorities for Climate Change Impacts’ (2007) 24 EPLJ 405 at 413–4. The Local Government Act 1993 (NSW) s 733, discussed at 3.41, extends also to ‘the likelihood of any land in the coastal zone being affected by a coastline hazard’. ‘Good faith’ may be demonstrated by

compliance with a manual relating to the management of the coastline. 156. See Attrill v Richmond River Shire Council (1993) 79 LGERA 178. 157. See 3.44. 158. Per McHugh J at [37]. 159. See Chapter 18. 160. Water Management Act 2000 (NSW) s 398. 161. Lack of good faith cannot be equated with either negligence or dishonesty. In relation to negligence, this is, of course, what such an exclusion clause is endeavouring to excuse. Good faith does, however, involve more than honest ineptitude; Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382. It involves acting honestly without any ulterior motive: see Mid-Density Development Pty Ltd v Rockdale Municipal Council (1993) 81 LGERA 104; or diligently, conscientiously or reasonably; Electro Optic Systems Pty Ltd v New South Wales [2014] ACTCA 45. There must be a real attempt to exercise a relevant power; Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382. 162. For example, Local Government Act 1993 (NSW) s 733(4), (5) (a manual relating to the management of flood liable land, or relating to the management of the coastline); Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 145B(3) (contaminated land planning guidelines). 163. The defence of good faith was also rejected in Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128. See also Marcic v Thames Water Utilities Ltd [2004] 2 AC 42. A similar exclusion clause in the Rural Fires Act 1997 (NSW) s 128, however, was successful in excluding liability in relation to the escape of bushfires that had been caused by a lightning strike with resultant destruction of property: Warragamba Winery Pty Ltd v New South Wales (No 9) [2012] NSWSC 701. 164. Per Lord Wilberforce at 1014. 165. York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983] 1 NSWLR 391; Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108. 166. Manchester Corp v Farnworth [1930] AC 171 at 183 per Viscount Dunedin. 167. Symons Nominees Pty Ltd v Roads and Traffic Authority of New South Wales [1991] Aust Torts Rep ¶68,675. 168. Allen v Gulf Oil Refining Ltd [1981] AC 1001 per Lord Wilberforce at 1011. 169. This issue was raised in Macquarie Generation v Hodgson [2011] NSWCA 424 in relation to emissions of carbon dioxide, though no actionable nuisance was alleged in this case. 170. Coastal Protection Act 1979 (NSW) Pt 4C. 171. Local councils are protected from liability in the event that a landowner negligently places or maintains authorised emergency coastal protection works: Local Government Act 1993 (NSW) s 733(3)(f6). 172. Pumpa v Goulburn-Murray Rural Water Corporation [2010] VSC 169. See also South East Water Ltd v Transpacific Cleanaway Pty Ltd [2010] VSC 46. 173. Biosecurity Act 2015 (NSW) s 6. 174. Industry Commission, A Full Repairing Lease: Inquiry into Ecologically Sustainable Land Management, Report No 60, 1998. Available at . 175. See 3.18. 176. For example, an Agriculture, Fisheries, Forests Australia (AFFA) Discussion Paper entitled

‘Managing Natural Resources in Rural Australia for a Sustainable Future’, Canberra, 1999, commented, at p 553, that ‘while the statutory duty of care may not be practical, a broader concept of duty of care should be embraced by all members of society’. See also Gardner, ‘The Duty of Care for Sustainable Land Management’ (1998) 5 Australasian Journal of Natural Resources Law and Policy 29; ‘The Administrative Framework of Land and Water Management in Australia’ (1999) 16 EPLJ 212. 177. Sustainable Land and Water Resource Management Committee (SLAWRMC), Discussion Paper, ‘Principles for Shared Investment to Achieve Sustainable Natural Resource Management Practices’, Canberra, 1999. 178. See further 8.77. 179. Gardner, note 173 above. ‘The Administrative Framework of Land and Water Management in Australia’ (1999) 16 EPLJ 212. 180. See Gunningham et al, ‘Reimbursing the Future’, Biodiversity Series, Paper No 9, Department of Environment, Sport and Territories, Canberra, 1996; Productivity Commission, ‘A Duty of Care for the Protection of Biodiversity on Land’, Canberra, May 2001. 181. See also Environment Protection Act 1993 (SA) s 25; Environment Protection Act 1997 (ACT) s 22; Environmental Management and Pollution Control Act 1994 (Tas) s 23A (couched in positive terms — ‘A person must take such steps as are practicable or reasonable to prevent or minimise environmental harm or environmental nuisance caused, or likely to be caused, by an activity conducted by that person’). 182. Environmental Protection Act 1994 (Qld) s 24(3); Environment Protection Act 1997 (ACT) s 22(3); Environment Protection Act 1993 (SA) s 25(4); Environmental Management and Pollution Control Act 1994 (Tas) s 23A(3). 183. Environmental Protection Act 1994 (Qld) s 358; Environment Protection Act 1997 (ACT) s 45; Environment Protection Act 1993 (SA) s 25(4); Environmental Management and Pollution Control Act 1994 (Tas) s 23A(3). For further explanation of the nature of administrative orders, see 20.4 and following. 184. Environmental Protection Act 1994 (Qld) s 493A(3); Environment Protection Act 1997 (ACT) s 143. 185. Environmental Protection Act 1994 (Qld) s 494A(4); Environment Protection Act 1993 (SA) s 25(3); Environmental Management and Pollution Control Act 1994 (Tas) s 23A(4). 186. Productivity Commission, ‘A Duty of Care for the Protection of Biodiversity on Land’, Canberra, May 2001. 187. See also Marine Parks Act 2007 (SA) s 37 (Crown waters); Adelaide Dolphin Sanctuary Act 2005 (SA) s 32. 188. For example, Catchment and Land Protection Act 1994 (Vic) s 20 (duties to avoid causing land degradation; but also to conserve soil, protect water resources and prevent spread of weeds and pest animals). 189. River Murray Act 2003 (SA) s 23. 190. Aboriginal Cultural Heritage Act 2003 (Qld) s 23; Torres Strait Islander Cultural Heritage Act 2003 (Qld) s 23. 191. Animal Care and Protection Act 2001 (Qld) s 17 (the Act makes no distinction between wild and domestic animals. For the definition of ‘animal’, see s 11); Animal Welfare Act 1993 (Tas) s 6. 192. Natural Resources Management Act 2004 (SA) s 9(4). 193. Catchment and Land Protection Act 1994 (Vic) s 37 (land management notices); Natural Resources Management Act 2004 (SA) s 9(6); Marine Parks Act 2007 (SA) s 37(4); River Murray Act 2003

(SA) s 26; Adelaide Dolphin Sanctuary Act 2005 (SA) s 37. 194. Natural Resources Management Act 2004 (SA) s 9(3). 195. Natural Resources Management Act 2004 (SA) s 9(7); Aboriginal Cultural Heritage Act 2003 (Qld) s 28; Torres Strait Islander Cultural Heritage Act 2003 (Qld) s 28. 196. See Development Act 1993 (SA) s 48(5)(da), (db), (dc). 197. See 21.5 and following. 198. For example, Protection of the Environment Operations Act 1997 (NSW) ss 246 and 247; Water Act 1989 (Vic) s 15(1)(c). 199. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 500. On civil penalties, see 20.14. 200. For example, Local Government Act 1993 (NSW) s 124. 201. For example, Local Government Act 1993 (NSW) s 125; Health Act 1958 (Vic) Pt III; Local Government Act 1999 (SA) s 254. Also see, for example, Smythe v Shire of Arapiles (1984) 16 APA 85; Baulkham Hills Shire Council v Domachuk (1988) 66 LGRA 110.

[page 105]

Chapter 4 International Environmental Law Introduction 4.1 ‘No man is an island’ said John Donne1 and in this day and age, neither is any nation, no matter what its geographical characteristics. No nation on Earth can ignore the emergence of global environmental issues such as destruction of ecosystems and biodiversity and, of course, global warming. 4.2 The main difference between domestic law and international law is that the participants in international law (except for human rights cases) are countries (referred to as ‘states’) rather than individuals or corporations. In other words, international law is about the rights and obligations of nations to each other, rather than about the rights and obligations of individual legal personalities. There is some movement to expand the rights of individuals in international environmental law, particularly with regard to access to information, to participation in decision-making, and, importantly, to justice and human rights,2 and non-government organisations also have recognised roles,3 but essentially international law is still very much about relationships between nations. This form of international law is referred to as ‘public international law’, to distinguish it from that body of law known as ‘private international law’, which governs the international relations of individuals and corporations with one another. In law schools, private international law is often referred to as ‘comparative law’. An example of the operation of private international law in Australia was the action by citizens of Papua New Guinea brought in Australian courts against the Australian-based corporation BHP for damage by pollution arising out of goldmining operations at Ok Tedi.4 Public international law has characteristics that are quite different from those of domestic or municipal law. In municipal law the sources and content of the law are usually well defined, and the administrative and regulatory

institutions usually have clear and enforceable powers. The sources and content of international law are more variable and often more difficult to discern. [page 106] 4.3 Engagement of countries, particularly developing nations, in agreeing to international laws is, of course, also quite different to domestic legal engagement, where citizens effectively have no choice but to comply with the law. Various techniques or principles of engagement have therefore been adopted in international law, including the principle of common but differentiated responsibilities (a good example of which is the Kyoto Protocol5), and the provision of funding, technological support and capacity building.6 The other major difference, from a domestic perspective, lies in who makes and enforces international laws. Australian parliaments make, and the courts enforce, domestic law; but the Australian federal government, not the parliament or the courts, decides whether it will enter into an international agreement or comply with an international obligation. The government may be answerable to the international community for its conduct in this regard, but international law will have no direct force in this country until enacted into domestic law by Australian parliaments.7 A breach of an international obligation is not, for that reason alone, enforceable in Australian courts.8 4.4 The development of international environmental law focuses squarely on the United Nations,9 and in particular upon the United Nations Environment Program (UNEP),10 although there are other players with specific functions. UNEP has been responsible, for example, for drafting the Conventions on Climate Change11 and Biological Diversity,12 as well as giving assistance to states in the provision of scientific advice and in developing appropriate infrastructure for the delivery of environmental law.13 Other important international organisations allocated specific responsibilities include the Commission on Sustainable Development,14 the United Nations Development Program (technical and investment assistance),15 the World Bank, which operates the Global Environment Facility (financial assistance to developing nations for implementation of biodiversity and climate change convention responsibilities)16 and has made consideration of environmental assessment (EA) a formal requirement for all its operations,17 and the United Nations Economic, Scientific and Cultural [page 107]

Organisation (UNESCO),18 which has the carriage of World Heritage. The work of the Organisation for Economic Co-operation and Development (OECD) in promoting market-based instruments and policy approaches, for example polluter pays, may also significantly impact on environmental policy development and therefore environmental law. In our region, the South Pacific Regional Environment Program (SPREP)19 is quite active. 4.5 A major non-government organisation (NGO) is the International Union for the Conservation of Nature (IUCN),20 which has a unique mix of governmental and non-governmental members, a Commission on Environmental Law and an environmental law program, which has worked with UNEP in drawing up draft environmental treaties or other policy and legal instruments, and was influential in the adoption of the Convention on International Trade in Endangered Species (CITES). NGOs21 were also formally involved in drawing up the 1998 Aarhus Convention on environmental democracy. NGOs may also be accorded ‘observer’ status at meetings of the parties under some conventions, such as the 1946 Whaling Convention and CITES. NGOs also have an important role in monitoring compliance. In our region, the activities of Greenpeace22 in relation to marine pollution and the ‘Sea Shepherd’ in relation to whaling are well known. TRAFFIC,23 working in close cooperation with the Secretariat of CITES, monitors and polices international trade under CITES. In the Shrimp/Turtle case,24 environmental NGOs were allowed, as a matter of discretion, to make representations to the World Trade Organization (WTO) about that case. 4.6 The making of international agreements (variously referred to as treaties or conventions) may be compared with the making of legislation in a domestic law setting. There is, however, no World Parliament or World Government to introduce and consider draft legislation, as there is in domestic law. International conventions are initiated by concerned countries, or groups of countries, or by United Nations organisations such as UNEP, in response to global concerns. The ‘parliament’ is effectively the community of nations; however, unlike domestic parliaments, participants who do not agree can simply opt out of any agreement and avoid the obligations enshrined in it (although not necessarily obligations set out by principles of international law more generally).25 International agreements are effectively made and enforced by and against the parties to that agreement. International law, however, is not just contained in treaties, though these are the most easily recognisable and discernible manifestations of law, particularly environmental law. International law is contained also in general principles and the

[page 108] customary behaviour of nations, which are often less easy to detect and determine with precision. Law that comes from these sources is not so much ‘made’, like treaties, but ‘matures’, often following a long debate about whether a principle really is or is not law! The International Court of Justice (ICJ)26 may be ultimately called on to pronounce upon this question.

Sources of international environmental law27 4.7 The sources of international environmental law are the same as for those of international law more generally. However, it is important at the outset to appreciate that international law sources are less clear and more obtuse than sources of law in domestic legal systems such as legislation and case law. Sources of international law may be generally divided into ‘hard’ and ‘soft’ law. The most obvious example of ‘hard’ law is an international treaty or convention. There are, however, other principles of international law, accepted as law because the international community recognises that these principles have evolved into law through customary acceptance, or because they are general principles that should be accepted by civilised nations. The ICJ, located in The Hague, may declare such principles as ‘international law’. 4.8 ‘Soft’ law comprises principles (such as principles of sustainable development)28 that are gaining increasing recognition and acceptance within the international community, but could not yet be said to have attained hard law status. Frequent reference to such principles, for example in international treaties, and adherence to such principles by the international community of nations, may well eventually convert soft law into hard law; but the boundaries are at best rather hazy. A good example of hard law in the making, as it were, may be the precautionary principle.29 The frequent use of this principle in treaties30 may indicate customary acceptance of its international legal status by many nations. Other ‘soft law’ principles commonly referred to in international treaties are the principles of common but differentiated responsibilities, and assistance to developing nations to implement treaty obligations.31 ‘Soft law’ may also be used as a substitute for ‘hard law’ where international negotiations cannot agree on binding principles. For example, the Non-

binding Authoritative Statement of Principles on Forests, concluded at the Rio Conference in 199232 in the absence of agreement about a global convention, arguably serves only [page 109] to highlight the absence of any consensus on binding principles of law in this highly politicised area of natural resources management. 4.9 The traditional sources of ‘hard’ international law are contained in the Statute of the ICJ art 38(1), which provides that in deciding on disputes before the court, judges are to rely on the following: international conventions or treaties; international custom; general principles of law recognised by civilised nations; and judicial decisions and the teachings of the most highly qualified publicists. These sources of law govern nations in their relationships with each other. They do not of course bind individuals nor can they be used by individuals to demand the compliance of nations with international law, although in a domestic law setting they may be used to interpret domestic law or may otherwise influence domestic decision-making.33

International conventions/treaties 4.10 International conventions or treaties are the most common and straightforward of the various sources of international law. These are, in essence, agreements reached by nation states to regulate particular activities. They may involve a number of states (multilateral agreements) or as few as two (bilateral agreements). International conventions are usually concluded at conferences convened by international organisations. They tend to be reactive, rather than proactive, though some precautionary measures do, for example, creep into some treaties, such as the Kyoto Protocol, and the Biosafety Protocol, negotiated under the Convention on Biological Diversity, which deals with imports and exports of living modified organisms and potential risks to the environment. The subject matter of international agreements represents a negotiated outcome between all interested parties. Once agreement is reached, the international organisation adopts the text of the agreement and the particular convention is opened for signature and ratification. Nations become bound by

the terms of a particular convention, not by signature, but rather by the act of ratification; signature merely represents an intention to be bound, and in theory obliges the signatory nation to act in conformity with the principles of that treaty.34 The procedure for ratification is one that is determined by each contracting nation, depending on its own political system. In Australia, it is the federal government of the day, rather than parliament, which makes the decision to ratify a treaty,35 after consultation with the states.36 Nations become bound by the terms [page 110] of a treaty only when the act of ratification has been completed and the instrument of ratification has been deposited with the appropriate international organisation, usually the organisation that convened the diplomatic conference. 4.11 A treaty will come into force when a stated number of ratifications have been received, or when details about essential provisions are agreed. The Kyoto Protocol to the UNFCCC, for example, required that at least 55 parties to the Convention must have ratified the Protocol, and these ratifications had to represent at least 55 per cent of the total carbon dioxide emissions of ‘Annex 1’ parties (essentially developed nations) in 1990. Despite the fact that by 2004, 124 parties had ratified the Protocol, it had not entered into force because the ratifications represented only 44 per cent of Annex 1 emissions; both the United States and Russia had yet to ratify the Protocol. Finally, Russia ratified the Protocol, which was brought into force in February 2005. The United Nations Convention on the Law of the Sea 1982 (UNCLOS) took a further 12 years to come into effect, due to extended negotiations about access to deep seabed resources. Although a nation that does not ratify an international agreement cannot be directly bound by it, it may become indirectly affected. For example, the CITES places restrictions on imports of endangered species and their products on signatories to the Convention. Import restrictions may, of course, affect the entry into a nation of exports from non-signatories to the Convention. The provisions of CITES may also conflict with principles of ‘free trade’ sought to be relied on by non-signatories.37 4.12 Environmental treaties are more likely to be ‘framework’ treaties. The ‘framework’ treaty is more commonly used where nations that are basically comfortable with the general intent, or framework, of a treaty, fail to agree about the detailed specific provisions. A framework treaty therefore concludes the general principles to which the parties agree to be bound, but leaves open

to further negotiation precise details that have yet to be agreed. Further agreement on details will then be outlined in a protocol. A good example is the 1992 UNFCCC and the subsequent 1997 Kyoto Protocol. By contrast, the 1972 International Convention on the Protection of the World’s Natural and Cultural Heritage (the World Heritage Convention) contains detailed principles that regulate the conduct of the parties without the necessity to meet again to thrash out the binding nature of those obligations. 4.13 Nations can sometimes be exempted from certain treaty obligations through the concept of reservations. This allows nations that have difficulty with certain obligations in a treaty to specifically opt out of those provisions while still accepting the remainder of the obligations contained in the convention. The alternative, of course, is that a nation may simply decline to ratify a particular treaty. The Vienna Convention on the Law of Treaties explicitly allows for reservations, unless a particular treaty specifically disallows them. Both the Convention on Biological Diversity and the Framework Convention on Climate Change,38 for example, refuse to allow for reservations. [page 111] The inability to enter a reservation may lead some countries to enter interpretive declarations that explain their understanding of particular provisions of a treaty. In effect, they are saying that they are prepared to respect the provision so long as it is interpreted in line with their expectations. The legal status of these declarations is uncertain; they may have political appeal, but it is unlikely that a legal document, such as a treaty, could survive if every country was allowed to put its own spin on the same provision. Since the primary rule for interpretation of a treaty is that the objects and purposes of that treaty should govern interpretation,39 then it is likely that a state seeking to establish a contrary interpretation will bear the onus of proving that.

International custom 4.14 International custom, or customary law, is the second of the sources of international law provided for in the Statute of the ICJ. Indeed, until the late nineteenth century, international custom was the most common source of international law. International custom is, essentially, unwritten but generally accepted international practice on a particular matter.40 Before a custom can

reach this status, there are two important criteria that must be satisfied: state practice and opinio juris. 4.15 State practice really means both widespread and consistent practice. State practice cannot be proven merely by isolated occurrences involving only a handful of nations on a few occasions. State practice can, for example, be discerned from elements of state law; from consistent practice in relation to the negotiation of treaties and acceptance of obligations; and from diplomatic and ministerial representations and opinions. The concept of ‘good neighbourliness’, for example, which postulates that even when a nation is acting within its legal rights it should take account of the rights and interests of its neighbours, is widely regarded as a customary rule. It was referred to by the Arbitral Tribunal in the Lac Lanoux Arbitration (Spain v France),41 which involved the proposed diversion by France of a river flowing into Spain: ‘France is entitled to exercise her rights; she cannot ignore the Spanish interests. Spain is entitled to demand that her rights be respected and that her interests be taken into consideration.’ Treaties often formally define and develop customary rules. For example, several examples of international custom can be found in UNCLOS; in particular, the provisions relating to sovereign rights over the territorial sea and the protection of the marine environment (Pt 12). Many of these provisions had become law well before the Convention came into force. The frequent reference to Principle 21 of the Stockholm Declaration42 in the text of treaties is a good example of treaties continuing to build [page 112] on the principle that nations should not use their sovereign rights to inflict harm on other nations.43 4.16 Opinio juris is the mental element that must, in addition to state practice, be present. Opinio juris translates as a sense of legal obligation that nations should behave in the particular way reflected by the state practice. This may be displayed by formally expressed beliefs and opinions, and acceptance of treaty obligations. For example, the principle of ‘common but differentiated responsibility’44 could be viewed as customary law because of the widespread acceptance of this principle, and its regular inclusion in treaties. This principle, which first appeared in 1987 in the Montreal Protocol on Substances that Deplete the Ozone Layer, and later of course in the Kyoto Protocol, acknowledges, in effect, that because of their historic contributions to environmental degradation, developed nations should take much of the responsibility for ameliorative measures. This has translated in practice to

delaying phase-out periods for developing nations; for example, in relation to ozone-depleting substances; delaying the setting of time-weighted targets for emissions of greenhouse gases under the Kyoto Protocol; and requiring developed nations to provide financial and technological support to developing nations to realise treaty goals.45 Other examples of the application of customary law can be seen at work in the Danube Dam case (the Gabcikovo-Najgymaros Project),46 which was a dispute brought to the ICJ by Hungary, which was complaining about the actions of Slovakia in diverting the waters of the Danube River to a power project, taking 80–90 per cent of the water flow. In determining that the actions of Slovakia were unlawful in international law without the consent of Hungary, the ICJ relied on Hungary’s status as a lower riparian nation to an equitable and reasonable share of the flow of water — a principle of customary international law. The court also asserted that the parties were under a continuing duty to monitor and control environmental risks according to current standards. This is an illustration of the principle of customary law that a nation must act diligently in controlling risks to its neighbours that might result from operations carried out in its own territory. Another possible customary international rule, also referred to in this case, is the principle of prevention — a nation’s obligation to prevent damage to the environment, including within its own jurisdiction, and reduce and control activities that might threaten such damage. The court said:47 … in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage.

[page 113] In the Pulp Mills case (Argentina v Uruguay) the ICJ confirmed that ‘the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory’.48 This principle also appears in a broad range of environmental treaties.49 Naturally, a nation that persistently objects to a particular principle cannot be bound by it as customary law. For example, the United States has consistently objected to any notion that there is any such principle as the ‘right to development’. Conversely, a failure to object may severely restrict a state from denying adherence in future to a commonly endorsed principle.

General principles of international law

4.17 The third source of international law set out in the Statute of the ICJ is ‘general principles of international law recognised by civilized nations’. General principles of law should not be confused with general principles of policy or strategy, such as the Rio Declaration on sustainable development,50 which contains a number of fundamental principles that should govern international conduct. It is possible that some of these may, in time, ‘harden’ into rules of law (for example, the precautionary principle), but if so they are more likely to do so because of customary adherence. General principles of municipal law may help in identifying general principles of international law. One general principle that may be said to permeate legal relationships in both domestic and international arenas is the principle of good faith. The ICJ relied on this principle in the Nuclear Tests cases (Australia v France; New Zealand v France),51 for example, when holding France bound to unilateral statements it had made about stopping atmospheric nuclear tests. The recognition in most legal systems that a person damaged by the activities of another might be entitled to compensation also finds recognition in the rule, frequently referred to as Principle 21 of the Stockholm Declaration, and applied in the Trail Smelter Arbitration (US v Canada),52 that one country should not use its sovereign right to conduct activities within its own borders as an excuse or justification for inflicting harm on a neighbouring country. In domestic law, of course, this would be referred to as a ‘nuisance’.53 In practice, the development of international legal principles does reflect, to some degree, commonly accepted principles of domestic law, such as reparation for unlawful damage. 4.18 It is possible to discern general principles of international environmental law from the content of international agreements and endorsement by frequent reference [page 114] and support in practice. The principle of sovereign control over natural resources, but a corresponding obligation not to cause environmental damage to neighbouring states, as reflected in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, would be an obvious example. The principles of sustainable development, precaution, prevention and polluter pays have arguably attained such a status. Other general principles include cooperation or ‘good-neighbourliness’ and common but differentiated responsibility (Principle 7 of the Rio Declaration).

The duty to cooperate has been said, for example, to be a fundamental principle in the prevention of pollution of the marine environment under not only UNCLOS but also general international law.54 The principle that developed and developing nations, while they might have the same (common) objectives, should accept different responsibilities for taking action on environmental issues, most obviously surfaces in the commitments demanded under the Convention on Climate Change and the Kyoto Protocol.55

Judicial decisions and the teachings of publicists 4.19 The Statute of the ICJ provides that as a subsidiary means of determination of decisions the court is to have regard to judicial decisions of domestic courts and tribunals and the teachings of the most highly qualified jurists; that is, eminent writers and commentators. The writings of eminent jurists are occasionally cited with approval in domestic courts, and may be persuasive in international tribunals,56 though international judicial authorities rarely specifically rely on them.

Compliance and enforcement 4.20 Enforcing legal obligations in international law is naturally more complex than in domestic law. There is no world environmental regulator to take countries to court and prosecute them, while the pursuit and application of civil remedies naturally tends to get tied up with international political relations. In essence, compliance with international agreements and other sources of international law lasts for as long as the participants decide; and the incentives for compliance often have more to do with international politics than with international legal responsibility. The attitude of Japan and other pro-whaling nations towards international bans on whaling is a classic example; the international community in effect allows the bans to be breached by a transparent exemption called ‘scientific research’.57 Acceptance of treaty provisions, and consequently compliance, also tends to be easier where a nation has no particular economic interest in the subject matter of the treaty. For example, few nations have any interest now in capturing whales or producing ozone-depleting substances. To some degree, the international community recognises that existing agreements need to be made more effective, and higher levels [page 115]

of compliance must be sought.58 Nevertheless, it is possible to claim compensation for environmental harm. In 1991, a United Nations Compensation Commission was established to determine claims in respect of Iraq’s unlawful invasion of Kuwait, and substantial claims for purely environmental damage have been awarded.59 4.21 Regular monitoring of international obligations may of course prevent breaches occurring. The Danube Dam and Pulp Mills decisions reaffirmed the principle of customary international law that environmental risks to neighbouring countries should be monitored and controlled, according to contemporary standards. Where treaties are concluded, sometimes an active secretariat or meetings of the parties may undertake an inspection or monitoring role, and devise procedures for prevention of incidents. The International Whaling Commission (IWC), for example, conducts extensive scientific review of permits issued for the taking of whales by member nations.60 The International Maritime Organization61 has been responsible for developing the certificates that are required under the International Convention for the Prevention of Pollution from Ships (MARPOL)62 to be carried on board ships to show that they have been inspected and have met the required standards for seaworthiness. Another form of monitoring is the requirement specified in many conventions that member states should submit regular reports on progress towards implementation, and advice about enforcement, to the convention secretariat or the conference of the parties.63 The collection and dissemination of information may be entrusted to a specialist body, such as the Subsidiary Body for Implementation established under the Framework Convention on Climate Change.64 Prevention may also be built into detailed standard setting as a mandatory aspect of an international agreement. MARPOL, for example, sets standards of seaworthiness for vessels that can only be met through proper construction; and requires installation of pollution prevention equipment to specified standards. 4.22 When breaches are detected, there are likely to be a number of stages through which compliance will be sought. The first is to try to get the transgressor to recognise its non-compliance and remedy it, through a process of ‘negotiation’.65 This, of course, is a ‘soft’ option through which it is hoped that the stability of, and respect for, [page 116]

the regime as a whole can be restored. Such a remedy may be attempted by (but is not restricted to) a conference of the parties; that is, a conference of the parties that have ratified a treaty under which it is claimed a breach has occurred. Breaches of international whaling regulations are traditionally handled in this way. More formal dispute resolution processes may involve an international organisation to whom a matter is referred for mediation or settlement. Mediation involves bringing the parties together to attempt a voluntary settlement; the mediator has no power to order resolution of the dispute. By contrast, judicial settlement represents a solution that is binding on the parties. Conciliation is a sort of ‘halfway house’, where the conciliator can suggest solutions to, but not impose them on, the parties. Conciliation is frequently employed as a method of dispute resolution in multilateral treaties; for example, UNCLOS.66 4.23 Binding arbitration is one form of binding settlement; the other is recourse to the ICJ. Treaties frequently give a range of options for binding settlement,67 and commonly establish a panel or tribunal to hear disputes in place of, or in addition to, the ICJ. The World Trade Organization Agreement 1994, for example, establishes its own specialist panel, an appeal body, and arbitration procedures for resolution of disputes, a number of which have involved trade and environment issues.68 UNCLOS gives the option of referring a dispute, depending on the elections made by a party,69 to an arbitral or special arbitral tribunal,70 the International Tribunal for the Law of the Sea71 or the ICJ. The Law of the Sea Tribunal heard the Southern Bluefin Tuna cases, Australia and New Zealand v Japan 39 ILM 1359 (2000), in which the tribunal prescribed provisional measures outlawing experimental fishing programs for stocks of tuna, based on a ‘precautionary approach’. Reference to the ICJ is usually a settlement procedure of ‘last resort’, particularly under treaties; indeed, the jurisdiction of the ICJ depends on agreement of all parties.72 Agencies of the United Nations can, however, ask the ICJ to deliver Advisory Opinions;73 perhaps more could be made of this potential for developing principles of international environmental law. [page 117] 4.24 Where, by comparison to environmental harm that is caused to a sovereign entity, harm to the ‘global commons’ occurs outside the sovereign jurisdiction of any particular nation, such as on the high seas or to the global

climate, the question arises whether such harm is actionable and, if so, by whom. In such a case it is possible that the ICJ will recognise the collective interests of all nations and therefore recognise the right of any nation (at least one that has ratified a relevant treaty) to seek to have an action declared unlawful. Weight is lent to this expectation by the way that modern treaties such as the Biodiversity and Climate Change Conventions refer to global resources, such as biodiversity, air quality and climate, as the ‘common concern of humankind’.74 In the Nuclear Tests cases (Australia v France; New Zealand v France),75 Australia and New Zealand argued before the ICJ that they had a right to bring a claim because France owed a general obligation to all nations to be free from nuclear testing, or that France was in general violation of the freedom of the high seas. Although this argument did not find majority support, there was some minority support for the concept of a right to bring an action on behalf of the international community, based on substantive obligations to the international community.76 This does not necessarily mean, however, that states that have not themselves suffered damage could demand actual reparation of the harm; it may be that the ‘remedy’ of the court in such an instance could be limited merely to a declaration that a breach has been committed, leaving it to diplomatic efforts to encourage remediation of that breach. Clearly, enforcement of international obligations is much more problematic than comparable domestic obligations. Some treaties do, however, provide for reparation for environmental damage. The MARPOL Conventions,77 for example, provide for strict liability and compensation funds financed by shippers.78

The sovereignty of nations 4.25 Sovereignty is important, because it is recognition by other nations of the right of a state79 to exercise exclusive legal control over the landmass of, airspace above and waters adjacent to, its territory. Sovereignty also entitles a country to exclusive [page 118] access to, and management of, its natural resources, with due regard to environment protection. UNCLOS art 193 states: ‘States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment’. Areas that fall outside the sovereign jurisdiction of any country,

such as the ‘high seas’, outer space and Antarctica, are often referred to as the ‘global commons’ or the common heritage of humankind. Management of natural resources in these areas must be by way of international treaties. The extent of sovereign control over waters adjacent to a state, as well as rules relating to commercial exploitation of natural resources in such waters, are set out in UNCLOS.80 The sovereignty of a nation extends to such coastal waters around the nation’s landmass as form the ‘territorial sea’, measured from the baseline. The breadth of this territorial sea may not exceed 12 nautical miles. The normal baseline is the low water mark,81 though geographical circumstances may mean that other methods have to be employed to calculate the baseline.82 A coastal nation may also protect against potential invasion of its sovereign territory through an additional contiguous zone, extending a further 12 nautical miles, or 24 miles from the baseline. The purpose of this zone is to prevent infringement of customs, fiscal, immigration or sanitary laws within sovereign territory or the territorial sea.83 This could be used, for example, to apprehend goods of quarantine concern. In addition, the Convention84 recognises the right of a coastal nation to claim an exclusive economic zone (EEZ) stretching to 200 nautical miles from the baseline, within which it can exercise exclusive rights to exploitation and conservation of natural resources, such as fisheries and deposits of minerals and petroleum, and conduct activities for the production of energy; for example, from gas production and wind and tidal power. Where the EEZ of different nations overlap, access should be determined by bilateral agreements,85 though if agreement cannot be reached, the dispute resolution process outlined in UNCLOS Pt XV may be brought into play.86 4.26 Australia has declared an EEZ and uses it to manage access to fisheries,87 minerals and petroleum.88 Access to offshore natural resources is also extended further by the acknowledgment in UNCLOS art 77 that a coastal state may exercise sovereign [page 119] rights over the continental shelf for the purpose of exploring and exploiting its natural resources, including mineral and other non-living resources and sedentary species of living resources. The continental shelf is the natural prolongation of the land territory of a nation to the outer edge of the shelf or 200 nautical miles from the baseline, whichever is greater.89 Australia’s continental shelf extends further, in some areas, than the EEZ.90 Australia also uses its territorial and EEZ rights for purposes of

environment protection under UNCLOS and other more specific treaties, such as those that govern dumping of oil and other wastes at sea.91 Rules of international law even allow pursuit and capture of vessels on the high seas that have been involved in illegal operations in Australian waters; and Australia has used such powers to apprehend and forfeit a foreign vessel proved to have been unlawfully taking the scarce Patagonian Toothfish.92 UNCLOS states that the management of living resources in the EEZ should promote maximum utilisation and aim to achieve maximum sustainable yield.93 The maximum sustainable yield of a species may, of course, be set at zero, depending on environmental and economic factors; it is recognised that marine mammals in particular may be managed in a stricter way than fisheries.94 4.27 Australia has declared an Australian Whale Sanctuary95 and prohibited the killing, injuring and taking of cetaceans either within the sanctuary or outside it.96 Foreign whaling vessels need permission to enter an Australian port.97 The agreement reached under the International Convention for the Regulation of Whaling, of course, recognises the right of whaling nations, particularly Japan and Iceland, to issue permits to take specified species and quantities of whales for ‘scientific research’.98 Nevertheless, domestic law is paramount in Australia. In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116, the Full Court of the Federal Court allowed the appellants to serve papers on a [page 120] Japanese company claiming breaches of the domestic prohibitions on whaling within the Australian Whaling Sanctuary,99 overruling the earlier decision of the Federal Court to refuse leave on the basis it might trigger a diplomatic incident.100 The plaintiff’s attempts to serve the papers, however, failed because the Japanese government refused to serve the respondent company, arguing it did not recognise Australia’s assertion of jurisdiction over the Antarctic waters in which the incident had occurred. After the plaintiff was allowed by the court to serve papers by post and personal service, the Federal Court finally heard the matter, in the absence of the respondent, and ruled Japanese whaling to be unlawful in Australian Antarctic waters, according to national law, and issued an injunction to restrain it.101 Recently, fines totalling $1 million have been imposed for contempt of court in relation to this court order.102 Enforcement, of course, may be practically, or at least diplomatically, impossible.103

In relation to whaling in the Antarctic, the ICJ, in a separate action, ruled in favour of Australia’s argument that Japan’s whaling program was not in fact designed and carried out for scientific research purposes (as permitted under the International Convention for the Regulation of Whaling 1946), and ordered that Japan must revoke current whaling permits and refrain from issuing any more.104 At its recent annual meeting, the IWC passed a resolution, proposed by New Zealand and supported by Australia, giving the IWC’s Scientific Committee a greater role in issuing scientific permits and determining whether proposed research programs meet the criteria set down by the ICJ. 4.28 While a country might have exclusive powers within its own borders, however, this does not entitle it to use its sovereign powers so as to impact adversely on the sovereign territory of another nation. In the Trail Smelter Arbitration (US v Canada),105 in which the United States sued Canada for polluting emissions of sulphur emanating from a smelter in Canada that were impacting on the environment in the United States, the Arbitral Panel said: ‘no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence’. Australia, of course, is lucky enough not to have common territorial borders with any other nation; though in so far as the [page 121] use of its territory is capable of causing harm outside its borders (for example, through deep seabed exploration for oil and the possibility of a blow-out)106 Australia must still be mindful of these international obligations. 4.29 The concept of sovereignty explains how other countries recognise Australia’s legal right to control the territory within its borders; however, it has no bearing on how Australia decides to allocate or delegate that authority among various levels of government. The conferment of legal powers on states and territories is a matter entirely for Australia to determine. In international law, therefore, the Commonwealth of Australia is recognised as the sovereign legal entity, exercising control over Australia’s landmass and coastal waters. Australia’s internal arrangements for power sharing with the states are not the concern of international law.107

Global trade and environment protection

4.30 Environment protection and exhaustion of natural resources are issues that cut across the global principle that world trade should basically be ‘free’ and without constraints.108 World trade rules are administered by the WTO, and the principal treaty is the General Agreement on Tariffs and Trade (the GATT). Since multilateral environment protection treaties, such as the Convention on Biological Diversity, the Framework Convention on Climate Change, the Vienna Convention on the Protection of the Ozone Layer, the Basel Convention on the Trade or Transportation of Hazardous Waste across International Borders and the CITES, naturally attempt to curb world trade in certain products, or impose discriminatory burdens on certain countries,109 then the WTO has to factor environment protection into implementation and enforcement of its rules on global trade. One outcome of the 1994 Uruguay Round of Multilateral Trade Negotiations was the creation of a new Committee on Trade and Environment (CTE). The CTE is obviously aware and mindful of the potential of multilateral environmental conventions to conflict with GATT rules, particularly by violating the principle of non-discrimination or by allowing discrimination between domestic and imported products, but so far no formal disputes have surfaced over trade issues arising under these Conventions. If they did, it is likely that the solution would be to apply the principle lex specialis — a principle of international law that if all parties to a treaty conclude a more specialised treaty, the provisions of the latter prevail over those of the former; in other words, the provisions of specialised environment protection treaties would prevail over inconsistent provisions of the GATT. Trade discrimination against countries that have [page 122] not ratified the ‘offending’ environmental treaty, however, would probably be dealt with under the dispute resolution procedures of the GATT, applying art 20. 4.31 GATT art 20 contains an exemption couched in the following terms: Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: … (b) necessary to protect human, animal or plant life or health; … (f)

imposed for the protection of national treasures of artistic, historic or archaeological value;

(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption …

Countries that claim this exemption tend to be viewed with suspicion in case their motives are trade related (favouring their own producers) rather than based legitimately on resource management, and the Disputes Resolution Panels of the WTO have had to determine a number of cases in which the use of art 20 has been challenged by other affected parties. In the process, the panels have gradually become more acquainted with environmental realities, and this has started to reflect in their determinations, in which they have begun to lay down rules on which parties can legitimately take action under art 20. 4.32 In Tuna/Dolphin 1 (Mexico v USA),110 the United States imposed prohibitions on imports of yellow-fin tuna and tuna products originating from Mexico, concerned about dolphin mortalities that occurred during the process of capture. The panel held that these import restrictions could not be justified under art 20. In relation to art 20(b), even if this allowed the United States to react to events outside its own jurisdiction, the United States had not shown that the measures were necessary or that it had exhausted all reasonable options for resolving the matter in a manner that was compatible with the GATT. In addition, art 20(g) could not be applied extrajurisdictionally; the restriction on taking measures only in conjunction with domestic measures clearly showed that the United States could only control production or consumption of exhaustible natural resources that were actually under its jurisdiction. However, even if that were wrong, the US conditions in any event had not been aimed primarily at the conservation of dolphins. Further, the GATT obliged the United States to treat tuna products from Mexico no less favourably than tuna products from it. The method of capture of the tuna could have no relevance to the obligation with respect to the treatment of the product. These findings illustrated a restrictive interpretation of the purpose of the art 20 exemptions, and called into question the ability of the GATT resolution process [page 123] to handle the environmental consequences of ‘free trade’. Tuna/Dolphin II111 was an action brought by the European community, among others, to challenge the US embargo on banned tuna imports from ‘intermediary nations’; that is, imports of prohibited tuna products coming via a third party nation rather than directly imported from the producer. The importance of this case lies in the more detailed analysis given by the panel to the purpose and meaning of the art 20 exemptions. First, the panel accepted that a policy

to conserve dolphins was a policy to conserve an exhaustible natural resource; second, that such a policy could apply to resources that were not presently depleted. In other words, a precautionary approach could be justified. Third, and contrary to the first panel ruling, the panel accepted that the exhaustible natural resource could be located outside the jurisdiction of the country taking the trade-related measure. Fourth, however, in relation to the requirement that the trade-related measures must be aimed primarily at the conservation of the exhaustible natural resource, the panel concluded that the primary aim of the measure was to force other countries to change or adopt policies and practices related to tuna capture, and that this primary aim was not justifiable under art 20. Both the direct embargo and the intermediate nations’ embargos were unlawful for this reason. Arguably, this decision on the policy basis of the embargo could make it virtually impossible for any country to unilaterally apply trade-related restrictions relying on art 20. Perhaps this was the result the panel wished to convey — encouraging parties with disparities in environmental policies to resolve trade-related disputes within the overall framework of the GATT rather than by resort to art 20. Certainly, it appeared worried about the ability of nations to react unilaterally to issues of resource conservation by developing trade-weighted responses. Interestingly, following agreement between the United States, Mexico and other nations to phase out by 1994 the use of ‘dolphin-unfriendly’ nets, the United States lifted its embargo. An international Agreement on the International Dolphin Conservation Program was also concluded in 1999 and further amended in 2009.112 Arguably, this might not have occurred without the unilateral action taken by the United States, which had been trying for 20 years to reach agreement on this matter. The Tuna/Dolphin Cases I and II were determined before the current WTO regime,113 and in the event these decisions have been overtaken by subsequent decisions of the WTO Appellate Body.114 4.33 The Reformulated Gasoline case115 (Brazil v USA) challenged the US Gasoline Rule, a regulation introduced to provide for environmental standards for gasoline [page 124] production and sale. The Rule imposed statutory baselines on imported fuel, but allowed US producers to establish their own baselines. The argument by the United States in favour of the uniform baseline imposed on foreign

entities was difficulties in administrative verification of individual baselines. The Appeal Panel held that clean air was an exhaustible natural resource that could be depleted, but there was no direct connection between the less favourable treatment of imported gasoline and the goal of improving air quality. The measure was not therefore primarily aimed at conservation of the natural resource. On appeal from the Appeal Panel to the Appellate Body, the Appellate Body ruled that the panel had erred in concentrating on the less favourable treatment of importers; the correct test was whether the measure itself was primarily for conservation. Second, the measure need only reasonably relate to the ends sought, such as to have a substantial relationship with conservation, not be ‘necessary’, as the panel had said in previous rulings. The Gasoline Rule was primarily aimed at conservation and introduced evenhanded treatment of both domestic and foreign entities; however, the Rule failed the test of exploring whether alternative measures were open to the United States to pursue its goals. The Appellate Body did not accept that administrative difficulties forced the conclusion that a uniform standard on foreign entities was necessary; neither had the United States attempted to reach cooperative arrangements with foreign governments. 4.34 The ruling of the Appellate Body about attempting to reach cooperative arrangements on environmental concerns before taking unilateral trade-related measures to resolve such concerns, surfaced again in the Shrimp/Turtle cases.116 This action concerned import restrictions placed by the United States on shrimp and shrimp products from four Asian nations because of concerns about the incidental capture of endangered sea turtles. The United States justified its extra-territorial approach by reference to the fact that the sea turtles were recognised as endangered in international law. The United States, however, had made no effort to negotiate with the complainants prior to the import ban. The Appellate Body accepted that the turtles were exhaustible natural resources, and that considerations of ‘sustainable development’ could inform provisional justification for extra-territorial jurisdiction. It was apparent, however, that the United States was placing embargos on imports of shrimps caught by acceptable means but in waters of nations that had not been ‘certified’ as compliant. It was not acceptable, said the Appellate Body, for one nation to use an economic embargo to require other nations to adopt similar regulatory measures without taking into consideration the different conditions that might exist in other member nations. Moreover, the fact that the United States had made no attempt to negotiate with the complainants, or

seek alternative courses of action, clearly indicated discriminatory treatment of the complainants. The United States subsequently revised its approach to accept a complementary, if not identical, regulatory regime and entered into negotiations with the complainants. [page 125] Malaysia subsequently argued that the United States should not only negotiate but conclude an agreement before entering into unilateral trade restrictions. The Appellate Body held that serious, good faith negotiations were enough; the requirement for a concluded agreement would effectively allow a nation to impose an individual veto on a trade-related restriction. Further, that since the revised US guidelines now enabled the United States to take into account the different circumstances of individual nations, the US measures were now valid (although of course the application of those measures to individual nations may still raise questions of unjustifiable discrimination). 4.35 Article 20(b) has since been held by the Appellate Body to justify French bans on asbestos and products containing asbestos: the Asbestos case (Canada v France).117 Importantly, the Appellate Body said that in evaluating scientific evidence used to determine whether such a ban was justified, it was not required that a decision should be taken on the preponderance of the evidence; rather, it was enough that the member had relied, in good faith, on respected and qualified scientific sources even if the opinions of those sources represented a divergence from the accepted majority view. 4.36 Articles 20(b) and 20(g) may well be used to justify measures aimed at the reduction of greenhouse gases. The admission by the Appeal Panel in the Reformulated Gasoline case that ‘clean air’ is an exhaustible natural resource, coupled with the reasoning in the Tuna and Shrimp cases, suggests that appropriate measures designed to protect exhaustible natural resources from the impacts of climate change would be justifiable under art 20.118 In Brazil — Retreaded Tyres,119 a case in which the European Union challenged an import ban by Brazil on retreaded tyres, the Appeal Body admitted that global environmental problems might need to be tackled with a multiplicity of interacting measures, of which trade restrictions could be part. The Appellate Body also upheld the initial panel’s finding that the import ban was provisionally justified as ‘necessary’ within the meaning of art 20(b). The panel ‘weighed and balanced’ the contribution of the import ban to its stated objective, taking into account the importance of the underlying interests or values. The Appeal Body also agreed with the panel that none of the less trade-

restrictive alternatives suggested by the European Communities constituted ‘reasonably available’ alternatives. In the event, however, the Appellate Body upheld the European Union’s complaint that Brazil could not use art 20 to ban imports of retreaded tyres, because the measure would be applied in an arbitrary and unjustified manner and constitute a disguised discriminatory restriction on international trade. Nevertheless, these findings suggest that the more important the goal, the more likely it is that the level of protection to achieve that goal will be accepted, and the more likely it is that less trade restrictive alternatives will be rejected as not being able to achieve the projected goal. Importantly, however, if a trade restrictive measure displays [page 126] no obvious environmental advantages over a non-restrictive alternative, it may not survive the test of being non-discriminatory.120 4.37 The coming into effect of the WTO in 1995 also brought with it, as well as the GATT, the Agreement on Technical Barriers to Trade (TBT Agreement), which entered into force in 1995. This Agreement applies to ‘technical regulations’ that lay down production methods or characteristics, compliance with which is mandatory, including packaging and labelling of products. Technical regulations should ensure that imported products are treated no less favourably than domestic or any other imported products, and should not be adopted or applied with a view to placing obstacles in the way of international trade. In Tuna/Dolphin III,121 Mexico complained about US labelling requirements for ‘dolphin safe’ tuna. The United States argued that the ‘dolphin safe’ label was not mandatory to enter the US market, but by a majority the panel rejected this, arguing that the regime was in effect mandatory because the label could only be used if certain conditions were met. The contrary argument that such a requirement is necessary for labelling schemes to prevent non-compliant products using the scheme was seized upon by the dissenting panellist. The practical effect of this decision is difficult to predict, though it does raise doubts whether many eco-labelling schemes would survive the test applied by the panel.122 4.38 Health and safety measures with the potential to impact on traderelated issues are dealt with in the WTO Agreement on Sanitary and Photosanitary Measures (SPS Agreement).123 The Agreement requires members to provide scientific justification, based on risk assessment, for trade

restrictions that are based on grounds of health and safety, and to apply such measures only to the extent they are necessary. The Beef Hormones case124 arose out of a European Communities ban on imports of meat or meat products from cattle fed with certain hormones to promote growth. The Appellate Body ruled that the burden fell on the complainants to prove a prima facie inconsistency with the SPS Agreement, but that adoption of a standard higher than the international standard demanded a risk assessment. The SPS measure could be based on a divergent minority view. However, the EC risk assessment in this case did not support the import prohibition; the scientific evaluation was of too general a nature. Failure to conduct a proper risk assessment was also the central feature of the Australian Salmon case (Canada v Australia),125 which arose out of a ban by Australia [page 127] on the importation of salmon products from Canada, on the basis that importation of Canadian salmon could result in the establishment of exotic diseases in Australia. The Australian decision was rejected by the Appellate Body because it was not based on a proper risk assessment and was more trade restrictive than necessary to achieve SPS protection. A risk assessment should not only evaluate the possibility that an exotic disease might enter the country and spread, but also the likelihood of that happening. A similar conclusion was reached in the Biotech Dispute, USA v EC126 in which European moratoria on biotechnology approvals was held by the Appeal Panel not to be based on proper risk assessment. 4.39 Australia, of course, is vitally concerned to repel imports of any description that might threaten the Australian environment. The Quarantine Act 1908 (Cth) (now repealed) enabled the Australian Quarantine Inspection Service (AQIS) to restrict imports into Australia of biodiversity and biodiversity products if compelling scientific evidence suggested there might be a serious risk to the environment. The risk was to be measured by an import risk analysis (IRA). The Australian Salmon case demonstrates, however, how unilateral action taken by Australia can result in international repercussions based on the GATT.127 This fear surfaced again in ‘Australia — Measures Affecting the Importation of Apples from New Zealand’, 128 in which the IRA produced by Australia to justify detailed restrictions on importation of New Zealand apples, based on possible infection with pests and diseases, including fire blight, was held to be inconsistent with various provisions of the SPS. The IRA

conclusions were not objectively based on the scientific evidence because they overestimated or exaggerated certain risks and consequences. The Quarantine Act has now been replaced with the Biosecurity Act 2015 (Cth).129 This Act deals with managing biosecurity risks from pests130 and diseases that may be in goods, vehicles or on premises. The Act confers extensive powers on biosecurity officers to assess the level of biosecurity risk associated with goods, and to monitor, respond to and control those risks.131 The Act also provides a mechanism for prohibiting certain [page 128] goods from being brought or imported into Australian territory, either absolutely or subject to conditions, and includes provisions dealing with biosecurity IRA and import permits. A biosecurity IRA is an evaluation of the level of biosecurity risk associated with particular goods, or a particular class of goods, that may be imported, or are proposed to be imported, into Australian territory, including the identification of conditions that must be met to manage the level of biosecurity risk associated with the goods, to a level that achieves the appropriate level of protection (ALOP) for Australia.132 The ALOP is a high level of sanitary and phytosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero, in accordance with Australia’s rights and obligations under the SPS Agreement.133 Where tradeable commodities are not, or are only incidentally, involved, then environmental restrictions are more easily justified. For example, after many years of concern, the international community has concluded a treaty addressing the threat posed by introduction of marine pests in the ballast water of visiting vessels.134 Australia ratified this treaty in 2005 and has been developing National Ballast Water Management Arrangements135 to manage the risks posed by such operations. Management and control over ballast water is now governed by Ch 5 of the Biosecurity Act 2015 (Cth). Australia also has an Australian Weeds Strategy,136 partly designed to prevent the introduction and movement of plant species that are invasive under Australian climatic conditions. 4.40 The recognition that principles of ‘free trade’ should not be allowed to result in unjustifiable, or unsustainable, impacts on exhaustible natural resources, or compromise appropriate standards relating to health and safety, is also part of the approach to the principle of ‘free trade’ embodied in the Australian Constitution s 92.137 In the end, the central issue, in both international and domestic law, is whether trade-related restrictions genuinely address crucial issues of natural resources management or whether they are

indeed designed to apply disguised protectionist measures to domestic interests.

The influence of international law in Australia 4.41 International law and policy exert a strong influence on the development of both domestic environmental policy and domestic law,138 including the resolution of disputes, but they have no automatic application in Australia. Domestic law prevails in this country.139 While Australia remains answerable to the international community [page 129] about its own performance under treaties Australia has ratified, and is subject generally to international customary law and general principles of law, the domestic law of Australia is determined by our own parliaments. To be effective in this country, therefore, international law must be translated into Australian law by domestic legislators,140 federal and state. The majority of federal environmental legislation, in fact, reflects the content of international agreements; there is very little federal environmental law that does not spring from international obligations. The table set out at 5.12 shows the treatybased sources of Commonwealth legislation, the detail of which is discussed in following chapters. 4.42 State parliaments may also take a cue from international developments. New South Wales, for example, was the first jurisdiction in Australia to legislate a response to climate change.141 As noted at 2.46 the Australian Capital Territory and Victoria have legislated for human rights, while principles of sustainable development appear in legislation in every jurisdiction.142 States also frequently enact ‘mirror’ legislation to carry out federal legal responsibilities under international conventions by agreement with the Commonwealth. This is particularly the case in relation to the Commonwealth’s international responsibilities to control pollution and dumping in coastal waters.143 4.43 Not all international obligations or matters of concern, however, find their way into domestic law. Climate change and management of greenhouse gases are a good example; it has taken a long time for some of the substance of international policy approaches and legal obligations to appear in legislation in Australia.144 Where domestic law does not reflect international obligations,

it is quite clear that the substance of those international legal obligations simply is not enforceable in Australian courts.145 The fact that Australia has, however, ratified an international treaty, even if it has not enacted its provisions into domestic law, may give citizens, absent any contradictory legislative or executive intent, a ‘legitimate expectation’ that the treaty provisions will be applied; and if they are not to be applied a person affected may be entitled at least to be informed and allowed to make representations on their own behalf.146 Decisions by Australia as to whether it will comply with international environmental policy reflect, of course, domestic politics; and this may well conflict with the desire to be seen internationally as a solid environmental performer that has a legitimate and respected role in helping to develop future international environmental policy. The international community tends to shun non-performers and those who lack commitment, and their influence in the international arena tends to diminish. However, on the other hand, the international community does not elect Australian [page 130] governments, so international policy may have to be made with one eye on what is happening ‘back home’. The differing attitudes of the Howard and Rudd governments to ratification of the Kyoto Protocol is a good example of such political considerations in action. Whereas Howard preferred to be influenced by domestic considerations, refusing to ratify the Protocol because of the absence of reciprocal undertakings by some developing nations, Rudd openly embraced ratification. 4.44 Australian courts, however, are prepared to interpret domestic legislation, and even the Constitution, in a way that fulfils Australia’s international legal responsibilities; indeed, where there is a choice, courts would prefer such a construction.147 Domestic interpretation legislation also confirms the relevance of treaties that are mentioned in legislation to the interpretation of that legislation.148 For example, in Commonwealth of Australia v Tasmania (1983) 46 ALR 625 (the Tasmanian Dam case), the High Court of Australia looked to the World Heritage Convention to explain the powers conferred on the federal Environment Minister by domestic legislation designed to prohibit construction of the Gordon-below-Franklin dam in south-west Tasmania. In Greentree v Minister for the Environment and Heritage (2005) 143 LGERA 1, the Federal Court looked to the RAMSAR Convention on Wetlands of International Importance to interpret requirements for specifying the boundaries of such a wetland, so as to

determine whether in fact there had been a breach of domestic legal requirements that any area within a Ramsar wetland should not be cleared without ministerial consent, in accordance with the requirements of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA). The approach adopted by the Full Court of the Federal Court in Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 also stressed that construction of the EPBCA should be informed by the international conventions it was intended to implement, but that such an approach would have to give way to any contrary indications in the legislation itself. It is not unlawful in this country for domestic law to breach an international convention.149 In fact, domestic legislation implementing the provisions of international treaties sometimes stipulates that, unless a contrary intention appears, expressions used in legislation bear the same meaning as in the relevant treaties.150 And since the Vienna Convention on the Law of Treaties 1969 art 31 declares that a treaty ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’ then ‘treaties should be interpreted in a more liberal manner than that ordinarily adopted by a court construing exclusively domestic legislation’.151 Courts may also look to international law in developing [page 131] the common law, particularly where rules of international law express universal or fundamental human rights.152 4.45 A court or tribunal might also be influenced by principles of international law and policy even in the absence of any direct recognition in the particular domestic law in front of it. For example, in Leatch v National Parks & Wildlife Service & Shoalhaven City Council (NSW) (1993) 81 LGERA 270, the Land and Environment Court of New South Wales accepted the legitimacy of the precautionary principle, as a means of decision-making, even though the legislation in question neither referred to the principle nor required such an approach (but it did not forbid it). Stein J said that the principle was accepted in international law, recognised and supported throughout Australia, and was, moreover, a principle of common sense; and the fact that the legislation he was dealing with did not advert to it did not mean he could not consider or apply it. Since then, legislation throughout Australia has accepted the legitimacy of principles of sustainable development to inform decision-making, and the courts are being asked more frequently to

pronounce on the boundaries and the expectations inherent in this legislative intent.153 Principles of sustainable development also influence courts and tribunals in determining merits appeals that raise global issues such as climate change and renewable energy; some examples are given in Chapters 8–22. In Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 at 35–50, the court sought guidance from international sources to more precisely define the role of, and process for applying, the precautionary principle in a merits review.154 4.46 Policy development in Australia may also be influenced by the law and policy of other nations. In the early years, environmental law was undoubtedly influenced by both British and American sources. Pollution laws introduced in the 1960s and 1970s clearly drew on British law.155 Equally as obvious, the federal regime for environmental impact assessment (EIA)156 introduced in the Environment Protection (Impact of Proposals) Act 1974 (Cth) was influenced heavily by the US National Environmental Policy Act 1969 (NEPA). Today, the influence is more squarely focused on Europe. As a ‘federation’ of some 27 independent sovereign nations, environmental policy determined by the European Union carries enormous weight. The Australian federal government’s proposals for a (now defunct) Carbon Pollution Reduction Scheme (CPRS),157 which included an emissions trading scheme, and linked proposals for renewable energy targets (RETs) and energy efficiency, were heavily influenced by the experience gained in Europe as the first block of countries to implement carbon [page 132] trading,158 renewable energy159 and energy efficiency schemes.160 The growing demand for extended producer responsibility (EPR) or product stewardship schemes161 is also fuelled by European directives162 that place responsibility for dealing with ‘end-of-life’ products firmly on designers, producers and distributors of those products. Equally, of course, Australia may also be said to have led the world in the implementation of principles of sustainable development163 and in the creation of specialist environmental courts.164 Clearly, experience and learning is not just a one-way street.

1.

John Donne (1572–1631), Devotions Upon Emergent Occasions, Meditation XVII.

2.

See 4.30 and following.

3.

See 4.5.

4.

Gagarimabu v Broken Hill Pty Co Ltd [2001] VSC 304 (the case was eventually settled by BHP). And see Kaye, ‘Transnational Environmental Litigation’ (2007) 24 EPLJ 35.

5.

Discussed in Chapter 18.

6.

See 4.7 and following.

7.

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

8.

Horta v Commonwealth (1994) 181 CLR 183.

9.

See .

10. See . 11. See . 12. See . 13. Sands et al, Principles of International Environmental Law, Cambridge University Press, Cambridge, 2012, p 60. 14. See . 15. See . 16. On the GEF, see . 17. Operational Policy OP/BP 4.1 ‘Environmental Assessment’. Prototype Carbon Fund (PCF) and Global Environmental Facility (GEF) co-financed projects are also subject to the provisions of OP/BP 4.01. See also Gray, ‘International Environmental Impact Assessment’ (2000) Colorado Journal of International Law and Policy 83. 18. On the GEF, see . 19. See . 20. See . 21. On NGOs generally, see 2.27. 22. In Rainbow Warrior (New Zealand v France) (1990) 82 ILR 500, France was ordered to pay US$7 million in compensation for sinking a Greenpeace vessel in Auckland Harbour. 23. See . 24. See 4.36 and following. 25. See 4.14 and following. 26. See . 27. For detailed coverage, refer to one of the following excellent text books on all aspects of international environmental law: Birnie, Boyle and Redgwell, International Law and the Environment, Oxford University Press, New York, 2009; Fabra, MacKenzie, Sands and Peel, Principles of International Environmental Law, Cambridge University Press, Cambridge, 2012. 28. See further Chapter 8. 29. See further Chapter 8. 30. For example, United Nations Framework Convention (UNFCCC) on Climate Change art 3.3. 31. For example, UNFCCC arts 3, 4 and 11. 32. See further Chapter 8. 33. See 4.43 and following. 34. Vienna Convention 1969 art 18.

35.

This is also the position in the United Kingdom: see Blackburn v Attorney-General [1971] 1 WLR 1037.

36. Consultation on international treaty making by the Commonwealth with the states was one of the cornerstones of the Intergovernmental Agreement on the Environment 1992 (IGAE): see art 2.5.2. And on the IGAE generally, see 5.64. See also Trick or Treaty? Commonwealth Power to Make and Implement Treaties, Report by the Senate Legal and Constitutional References Committee, November 1995. 37. See further 4.32 and following. 38. Article 24. 39. Vienna Convention 1969 art 31. 40. The respected but non-binding International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2000) attempts to codify customary rules. 41. (1957) 12 RIAA 285. See also the Corfu Channel Case (United Kingdom v Albania) (1949) ICJ Reports 4. 42. Declaration of the United Nations Conference on the Human Environment 1972 art 21: ‘States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.’ 43. See also the Trail Smelter Arbitration (USA v Canada), mentioned at 4.17. 44. That is, that all nations have similar responsibility for environment protection, but cannot deliver on that responsibility in the same way. This principle enables developing nations to accept principles of responsibility without the corresponding obligations to do as much about fulfilling them as developed nations. 45. For example, Framework Convention on Climate Change art 4 (3–5); Convention on Biological Diversity arts 16 and 20. 46. (1997) ICJ Reports 7. 47. (1997) ICJ Reports 7 at 78 [140]. 48. [2006] ICJ Reports 113 at [101]. 49. For example, Framework Convention on Climate Change art 2; Convention on Biological Diversity Preamble and art 1. 50. See 8.7 and following. 51. (1973) ICJ Reports 99 and 135; (1974) ICJ Reports 253 and 457. 52. (1939) 33 AJIL 182. 53. See 4.20 and following. 54. The MOX Plant case (Ireland v United Kingdom) (Interim Measures) Order 41 ILM 405 (2002). 55. See further Chapter 18. 56. See, for example, the Trail Smelter case at 4.17; and the judgments of Judge Weeramantry in the Danube and Nuclear Test cases at 4.16 and 4.17. 57. International Whaling Convention 1946 art VIII. 58. See ‘Programme for the Development and Periodic Review of Environmental Law for the First Decade of the Twenty First Century’, adopted by the UNEP Governing Council in 2001. Conferment of ‘environmental democracy’ under the Aarhus Convention (see 4.5) can also lead to

international obligations becoming indirectly taken up and enforced in domestic law. 59. See Sands, ‘Compensation for Environmental Damage from the 1991 Gulf War’ 35(6) Environmental Policy and Law 244. 60. See . 61. See . 62. See 15.115 and following. 63. For example, Convention on Biological Diversity art 26; International Convention for the Regulation of Whaling art IX; Framework Convention on Climate Change art 4(1)(j). 64. Article 10. 65. For example, Framework Convention on Climate Change art 14; Convention on Biological Diversity art 27. 66. UNCLOS art 284; Annex V. 67. Convention on Biological Diversity art 27; Framework Convention on Climate Change art 14; UNCLOS art 287. 68. See 4.32 and following. 69. UNCLOS art 287. 70. UNCLOS Annex VII and Annex VIII. 71. UNCLOS Pts XI and XV; Annex VI. 72. For example, UNCLOS art 287; Convention on Biological Diversity art 27; Framework Convention on Climate Change art 14. This limit on the jurisdiction of the ICJ is illustrated by the Fisheries Jurisdiction Case: Spain v Canada (1998) ICJ Reports 432, where Canada effectively refused to allow the ICJ to hear the case. On the other hand, in 2014 the Court was able to go ahead and determine the dispute between Australia and Japan over whaling in the Antarctic; see . 73. For example, the request by the UN General Assembly for an Advisory Opinion on the ‘Legality of the Threat or Use of Nuclear Weapons’ (1996) 35 ILM 809 and 1343. 74. Convention on Biological Diversity Preamble; Framework Convention on Climate Change Preamble. 75. (1973) ICJ Reports 99 and 135; (1974) ICJ Reports 253 and 457. 76. In the Behring Fur Seals Arbitration (1898) 1 Moore’s Int Arbitration Awards 755, the United States also claimed to be acting for the benefit of mankind in asserting a right to challenge the taking of fur seals outside US territorial limits. The claim was rejected, although it did spawn future agreements and ultimately a binding treaty. 77. International Convention for the Prevention of Pollution from Ships 1973 and International Convention on Civil Liability for Oil Pollution Damage 1981. 78. Many changes to MARPOL over the years have been fuelled by reactions to maritime disasters; for some references to these, and their impact on the development of MARPOL, see ‘The Origins of IMO’ (2012) at . For further discussion on the provisions of these Conventions, see 15.115 and following. 79. To be recognised as a state, a country must have (a) a permanent population; (b) a defined territory; (c) a government; (d) a capacity to enter into relations with other states: Montevideo Convention on the Rights and Duties of States 1933 art 1. 80. UNCLOS arts 2 and 3. 81. UNCLOS art 5.

82. UNCLOS arts 6–16. 83. UNCLOS art 33. 84. UNCLOS arts 55–57. 85. See, for example, Torres Strait Fisheries Act 1984 (Cth) based on the Torres Strait Treaty 1978 between Australia and Papua New Guinea. See also the Petroleum (Timor Sea Treaty) Act 2003 (Cth), establishing a Joint Petroleum Development Area, based on the Timor Sea Treaty 2002; and Petroleum (Australia–Indonesia Zone of Cooperation) Act 1990, based on the Australia–Indonesia Zone of Cooperation Treaty 1982. See also Commonwealth of Australia v WMC Resources Ltd (1998) 194 CLR 1 discussed at 5.31. 86. UNCLOS art 74. 87. Fisheries Management Act 1991 (Cth). 88. Offshore Minerals Act 1994 (Cth); Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). 89. Subject to the restriction that this may never exceed 350 nautical miles from the baseline; or 100 nautical miles beyond the 2500 metre isobath (the line connecting the depth of 2500 metres); UNCLOS art 76. 90. For a map delineating Australia’s maritime zones, see . 91. Environment Protection (Sea Dumping) Act 1981 (Cth); Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth). 92. See Olbers Co Ltd v Commonwealth of Australia [2004] FCAFC 262; and Gullett, ‘Developments in Australian Fisheries Law: Setting the Law of the Sea Convention Adrift’ (2004) 21 EPLJ 169. Otherwise, legal powers, for example, to protect marine biodiversity in areas outside national jurisdiction, are problematic: see Pecot, ‘The Conservation of Marine Biological Diversity in Areas Beyond National Jurisdiction’ (2005) 22 EPLJ 459. 93. UNCLOS arts 61 and 62. 94. UNCLOS art 65. 95. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 225. The sanctuary comprises all Commonwealth marine areas (s 24) including the EEZ, and coastal waters managed by the states or territories, subject to their agreement (prescribed waters, s 226). 96. See Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 229–232. 97. See Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 236. 98. Article VIII. For information on current permits, see . 99. See also McGrath, ‘The Japanese Whaling Case’ (2005) 22 EPLJ 250; McGrath, ‘Japanese Whaling Case Appeal Succeeds’ (2006) 23 EPLJ 333. 100. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664. 101. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3; Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 36. See also McGrath, ‘Injunction Granted in Japanese Whaling Case’ (2008) 25 EPLJ 77. 102. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2015] FCA 1275. 103. Enforcement is not assisted, of course, by the fact that no claims of sovereignty to any part of Antarctica or the waters that surround it are recognised in international law. Antarctica is part of the ‘global commons’, managed under the Antarctic Treaty 1959 and Protocol on Environment Protection 1991.

104. Whaling in the Antarctic: Australia v Japan. Available at . And see Stephens, ‘After the Storm: The Whaling in the Antarctic Case and the Australian Whale Sanctuary’ (2014) 31 EPLJ 459. 105. (1939) 33 AJIL 182; (1941) 35 AJIL 716. 106. See Wulf, ‘Offshore Petroleum and the Environment Protection and Biodiversity Conservation Act 1999 (Cth): Consideration of “All Adverse Impacts”’ (2005) 22 EPLJ 296. 107. See generally Rothwell and Kaye, ‘A Legal Framework for Integrated Oceans and Coastal Management in Australia’ (2001) 18 EPLJ 278; and on ‘cooperative federalism’, see 5.54 and following. 108. See generally Fijalkowski and Cameron (eds), Trade and the Environment: Bridging the Gap, Earthscan, London, 1998. 109. For example, by requiring parties to these agreements to apply more restrictive trade provisions against non-parties than to fellow-signatories. 110. 30 ILM 1594 (1991). 111. 33 ILM 839 (1994). 112. See . 113. For the 1994 ‘Decision on Trade and Environment’, part of the agreement to establish the WTO, see . 114. The latest finding on this long-running dispute concludes that the United States has not brought its dolphin-safe labelling regime for tuna products into conformity with the recommendations and rulings of the Dispute Settlement Body; see . 115. 35 ILM 603 (1996). 116. 33 ILM 118 (1999), ‘United States — Import Prohibition on Certain Shrimp and Shrimp Products’, Report of the Appellate Body, 22 October 2001. 117. ‘European Communities — Measures Affecting Asbestos and Asbestos-containing Products’, Report, 12 March 2001. 118. And see Tran, ‘Using GATT, Art XX to Justify Climate Change Measures in Claims under the WTO Agreements’ (2010) 27 EPLJ 346. 119. Brazil — Measures Affecting Imports of Retreaded Tyres, WTO Doc WT/DS332/AB/R, AB-2007-4. 120. See Kruse, ‘Climate Change Regulation in Australia: Addressing Leakage and International Competitiveness Consistently with the Law of the WTO’ (2011) 28 EPLJ 297. 121. United States — Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WTO Doc WT/DS381/R (US-Tuna III) 2011. 122. See Tran, ‘Just Another Fish in the Sea? The WTO Panel decision in US-Tuna III’ (2012) 29 EPLJ 45. 123. 33 ILM 28 (1994). 124. ‘EC — Measures Concerning Meat and Meat Products (Hormones)’, Report of the Appellate Body, 16 January 1998. 125. ‘Australia — Measures Affecting Importation of Salmon’, Appellate Body Report, 20 October 1998. For discussion of similar issues, see also ‘Japan — Measures Affecting Agricultural Products’, Appellate Body Report, 22 February 1999. 126. ‘European Communities — Measures Affecting the Approval and Marketing of Biotech Products’, Appeal Panel Report, 29 September 2006. For a note on this case, see McDonald, ‘Look While You

Leap: The WTO Biotech Dispute Panel Report’ (2006) 23 EPLJ 417. 127. In Conservation Council of South Australia v Development Assessment Committee (No 3), the rejection of a tuna farming venture by the Environment, Resources and Development Court (ERD Court) in South Australia, because of fears that importation of pilchards as feedstock might result in the introduction of exotic diseases, to the detriment of the local environment, was subsequently overruled by the South Australian government. 128. Report of the Panel, WT/DS367/R, 9 August 2010; Report of the Appellate Body, WT/DS367/AB/R, 29 November 2010. 129. Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015 Sch 1. 130. Except in an emergency, the Act applies to pests (a) if the pest is capable of: (i)

infesting humans, animals or plants; or

(ii) acting as a vector for a disease; or (iii) causing disease in any other way; or (b) the pest is an invasive pest; Biosecurity Act 2015 (Cth) ss 25 and 26. 131. Biosecurity Act 2015 (Cth) Ch 6. 132. Biosecurity Act 2015 (Cth) s 166. 133. Biosecurity Act 2015 (Cth) s 5. 134. International Convention for the Control and Management of Ships’ Ballast Water and Sediments. 135. See . 136. See . 137. See 5.42. 138. See Sir A Mason, ‘The Influence of International and Transnational Law on Australian Municipal Law’ in G Lindell (ed), The Mason Papers, Federation Press, Sydney, 2007, pp 269–73. 139. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3; Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 36; FCA 36. 140. This is also the position in the United Kingdom: see Maclaine Watson v Department of Trade and Industry [1989] 3 All ER 523 at 545. 141. Electricity Supply Act 1995 Pt 8A (reduction of greenhouse emissions); and see further 18.39. 142. See Chapter 8. 143. See Chapter 16. 144. See further Chapter 18. 145. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. 146. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. 147. Newcrest Mining (WA) Ltd v Commonwealth of Australia (1997) 147 ALR 42. See, however, 2.57 on the use of statutory aids to construction. 148. For example, Interpretation Act 1987 (NSW) s 34(2)(d); Acts Interpretation Act 1901 (Cth) s 15AB(2)(d); Interpretation of Legislation Act 1984 (Vic) s 35(b) (any matter or document that is relevant). 149. Horta v Commonwealth (1994) 181 CLR 183. 150. For example, Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) s 3(3).

151. Morrison v Peacock [2002] HCA 44 at [16]. 152. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J. 153. See Chapters 8 and 22. 154. See 8.73. 155. See Chapter 15. 156. See Chapter 11. 157. See Chapter 18. 158. See, for example, Directives on Monitoring and Reporting of Greenhouse Gas Emissions (EC 2004/180); (EC 2005/166); Directives Setting up an Emissions Trading Scheme (EC 2003/87) (binding guidelines setting out how industrial plants involved in the EU emissions trading scheme should measure and report their releases of greenhouse gases); (EC 2004/101) (allows firms involved in the EU emission trading scheme to gain extra carbon credits by funding abatement projects outside the EU). 159. See, for example, Directives on Energy from Renewable Resources (EC 2001/77) and Biofuels (EC 2003/30). 160. See, for example, Directives on Energy Performance of Buildings (EC 2002/91); Energy End-use Efficiency (EC 2006/32); Eco-design Requirements for Energy-using Products (EC 2005/32); Energy Efficiency Labelling Programmes for Office Equipment (EC Regulation 2001/2422) and Dishwashers (EC 97/17); Commission v Greece C-342/07 (failure to fulfil obligations under Directive 2002/91/EC on the energy performance of buildings). 161. See Chapter 16. 162. See, for example, EC Directives on Packaging Waste (94/62); End of Life Vehicles (2000/53) and Waste Electrical and Electronic Equipment (2002/96). 163. See Chapter 8. 164. See 2.72.

[page 133]

PART B Implementation of Environmental Law Overview Pt B.1 Law making in Australia is vested in a federal and different state and territory parliaments. Whereas state and territory parliaments have jurisdiction to enact laws only within their state or territory boundaries, the federal parliament has jurisdiction to pass laws anywhere within the recognised territory of Australia — a recognition that is conferred by the international community in accordance with fundamental principles of ‘sovereignty’. This means that potentially state and federal parliaments may enact laws with respect to the same subject matter. In order to avoid duplication and conflict between the federal and state jurisdictions, one of the primary tasks of governments has been to determine the relationship between them in respect of environmental management and protection. Although the basis of this relationship was settled some 20 years ago, to the effect that the federal government would take on legal responsibilities largely for domestic environmental issues that raised international implications, nevertheless new challenges such as the crisis facing the Murray–Darling Basin, climate change, and the uptake of principles of product stewardship, necessitate regular reappraisals of this relationship. Pt B.2 In Part B of the book we also look at some of the fundamental legal principles that govern the structure and content of environmental legislation. These are common to all jurisdictions; and while environmental legislation may differ markedly in its detail between different jurisdictions and from one piece of legislation to another, the concepts and principles on which the legislation is based are fundamentally the [page 134]

same, allowing for some quite obvious cross-fertilisation of ideas in legislation and in decisions by courts and tribunals in different jurisdictions. The concept of ecologically sustainable development (ESD) has become the main focus of environmental and natural resource management (NRM) policies, and therefore the primary objective of environmental legislation, commanding decision-making at all levels of government. Courts and tribunals have had to grasp the legal concept of ESD and give it some meaning in challenges based not only upon legal duties to consider or apply ESD, but also in merits appeals where the practical application of the principles of ESD can be teased out and used effectively to assess the potential impacts of projects and activities, and impose conditions that seek to achieve sustainable outcomes.

[page 135]

Chapter 5 Federal Governance and Environment Protection Introduction 5.1 Australia is a federation of six states and two territories that have created a national federal (Commonwealth) parliament and delegated to it power to make laws for the peace, order and good government of the Commonwealth.1 Including the Commonwealth there are nine central governments in Australia, all with law-making powers; and then, of course, there is local government and Australia’s external territories.2 In general, it may be said that legal responsibility for land use decision-making and natural resources management (NRM), and hence environmental management and protection, has traditionally lain with state and territory governments.3 The Commonwealth has no direct legislative powers in relation to the environment because in 1900, at the time the Commonwealth Constitution Act was passed, environmental protection was not an issue that occupied the minds of the legislators. As Crawford has remarked, ‘The drafters of the Constitution would have emphasised the immensity of the continent, the difficulties in “overcoming” it, rather than the fragility of many of its ecosystems or the problems in managing it once it had been overcome’;4 and since then proposals to insert an ‘environmental’ head of power into the Constitution via referendum have not been pursued.5 The only provision in the Constitution indirectly relating to the environment is section 100, which protects the rights of states and their residents to the reasonable use of the waters of rivers for conservation or irrigation against any laws of trade or commerce that might abridge them. This provision has never been applied successfully as a limit on Commonwealth power so its true potential remains unclear.6 In Arnold v Minister Administering Water Management Act 2000 [2010] HCA 3, s 100

[page 136] was held not to extend to underground waters in aquifers. The High Court commented that artesian water would not have been within the contemporary understanding of the concept of waters in rivers at the time of drafting the Constitution.7 On the other hand, powers that the Commonwealth does possess may be validly exercised for environmental reasons. The Commonwealth also remains legally responsible for its own land situated in the states and territories, vast marine areas and the conduct of its own administration. In the self-governing territories — the Australian Capital Territory, the Northern Territory and Norfolk Island — ministers have been granted executive authority in respect of environmental protection and conservation,8 and the territory legislative assemblies have power to enact their own laws with respect to those matters over which they have been granted executive authority. However, this arrangement is of political rather than legal effect; the legislation does not, and arguably could not, detract from the Commonwealth’s overall sovereign legislative authority over those territories.9 5.2 In general, it may be said that the states can legislate on all matters not specifically reserved to the Commonwealth by the Constitution. Since the only matters over which the Commonwealth has exclusive jurisdiction, in fact, are listed in s 52 (which relates basically to Commonwealth places and territories and the Commonwealth public service) and s 90 (the power to levy duties of customs and excise), power to deal with most environmental issues is effectively conferred concurrently on both the Commonwealth and the states, rather than on one level of government or the other.10 This means that for any particular issue, two sets of legislative controls may apply; for example, where threatened species are listed both under Commonwealth and state laws, any proposals that might significantly impact on them will need to comply with both state and federal requirements.11 To avoid unnecessary duplication of effort, however, the Commonwealth may effectively delegate environmental assessment (EA) processes to a state to undertake on behalf of the Commonwealth.12 [page 137]

Commonwealth legislative powers in respect of the environment

5.3 While the states can effectively legislate on almost anything within their borders, except those matters reserved exclusively to the Commonwealth, the Commonwealth cannot legislate outside the scope of the authority vested in it by the Constitution.13 Commonwealth powers to legislate are set out in the Constitution s 51, and in the event that Commonwealth legislation made in pursuance of one of these ‘heads of power’ conflicts with existing or future state legislation, Commonwealth legislation will prevail: Constitution s 109.14 There is no direct or explicit power in s 51 to enact laws for the environment, but this has not proved to be a restraint on Commonwealth powers to legislate in this area. The principal powers that may be used to promote environmental objectives include those relating to trade and commerce (s 51(i)); trading, financial and foreign corporations (s 51(xx)); and ‘external affairs’ (s 51(xxix)). Other powers such as finance and taxation (s 51(ii)), ‘people of any race’ (s 51(xxvi)), quarantine (s 51(ix)) and fisheries (s 51(x)) can all be used to justify environmental regulation. 5.4 These powers are of two types: purposive and non-purposive. A purposive power is one that only allows laws to be made specifically to further the object of the power. The external affairs power is of this type; laws based on this power must reflect an appropriate means of giving effect to specific matters of international concern.15 In the Tasmanian Dam case (Commonwealth v Tasmania (1983) 46 ALR 625), for example, laws that prohibited a wide range of activities in a world heritage area were interpreted as being inconsistent with the object of the World Heritage Convention, which was to enable decisions to be made that promoted world heritage values, but did not automatically require the prohibition of certain activities in world heritage areas. Laws that gave the minister power to prohibit such activities were, however, held to be an appropriate way of carrying out the purpose of the Convention. Non-purposive powers, on the other hand, allow the law to seek to further objects that are not specifically relevant to the power on which the law is based. Trade and commerce, corporations and taxation powers are of this type. This means that environmental restrictions or prohibitions that flow from laws relying on one of these heads of power will themselves be valid so long as the primary law can itself be classified as constitutionally valid. The purpose of the legislation (environmental protection) is irrelevant so long as the law actually rests on an available head of power. For example, in Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1, power to prohibit the export of mineral sands from Fraser Island for reasons including

environmental considerations, embodied in regulations16 made under legislation17 [page 138] based on the trade and commerce power, were held by the High Court to have been validly made, even though environmental restrictions are not in themselves matters of trade and commerce. Stephen J, speaking for the majority, said (at 12): In those instances in which the legislative power of the Commonwealth is granted in purposive terms … it is necessary, in determining constitutional validity, to have regard to purpose and this applies no less to administrative acts than to legislation. … But where the source of power is found in non-purposive subject matter, as in s 51 (i.) the same problem does not present itself. Thus once legislation addresses itself to the subject matter of the prohibition of exports, central to the trade and commerce power, a regulation implementing that prohibition will inherently be within subject matter; so also will be an administrative decision relaxing, or failing to relax, that prohibition in a particular case; so long as that is the nature of the decision it will be within power. … The source is trade and commerce with other countries and the stream, of legislation, regulation and administrative decision, flows from it and concerns one and the same subject matter, all within constitutional power. The administrative decision whether or not to relax a prohibition against the export of goods will necessarily be made in the light of considerations affecting the mind of the administrator; but whatever their nature the consequence will necessarily be expressed in terms of trade and commerce, consisting of the approval or rejection of an application to relax the prohibition on exports. It will therefore fall within constitutional power. The considerations in the light of which the decision is made may not themselves relate to matters of trade and commerce but that will not deprive the decision which they induce of its inherent constitutionality for the decision will be directly on the subject matter of exportation and the considerations actuating that decision will not detract from the character which its subject matter confers on it.

In other words, in exercising its powers under a non-purposive head of power, the Commonwealth is entitled to act for environmental reasons alone, even though the head of power used to justify the action may be, for example, trade and commerce. 5.5 In practice, Commonwealth environmental legislation often relies on various heads of power.18 Examples include the Environment Protection and Biodiversity Conservation Act 1999 (EPBCA) (external affairs, Commonwealth places); Environment Protection Nuclear Codes Act 1978 (Cth) (trade and commerce, corporations, and defence); Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) (external affairs, corporations); Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) (external affairs, corporations); and Antarctic Mining Prohibition Act 1991 (Cth) (external affairs, corporations). The National Greenhouse and Energy Reporting Act 2007 (Cth) (NGERA) is expressed to rely on the corporations, census and statistics, external affairs and incidental matters

powers (s 4); the Renewable Energy (Electricity) Act 2000 (Cth) is clearly directed at corporations; while ‘offshore’ legislation such as the Environment Protection (Sea Dumping) Act 1981 (Cth), Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth), Historic Shipwrecks Act 1976 (Cth) and Offshore Petroleum and [page 139] Greenhouse Gas Storage Act 2006 (Cth), may rely either on the external affairs power, or simply on the sovereign power of Australia to control its own offshore territory: Constitution s 122. The Biosecurity Act 2015 (Cth) lists the quarantine, external affairs, trade and commerce, fisheries, aliens, corporations, Territories, postal, sickness benefits and census and statistics powers.19 Legislation authorising Commonwealth financial assistance to the states for environmental purposes, such as the Natural Heritage Trust of Australia Act 1997 (Cth), may rely for validity on the Constitution s 96, which enables loans and specific purpose grants to be made to the states. Another power that the Commonwealth may seek to rely on is the uncertain ‘nationhood’ power,20 which may support, for example, legislation directed at environmental research. 5.6 The ability of the Commonwealth to rely on the enumerated s 51 powers to attract to itself authority to enact environmental legislation or impose environmental conditions on a wide-ranging set of activities has been actively challenged in the High Court on a number of occasions and, as a result, more recently enacted statutes in particular have been careful to express themselves as relying on as wide a range of s 51 powers as possible, so that if one particular power fails to attract validity, another might.21 For example, the Water Act 2007 (Cth) cites no less than nine different bases for the validity of the Act plus different heads of validity for various provisions within it.22 Since the heads of power in s 51 are not mutually exclusive, any one or more may be used to attract an exercise of federal legislative power. In other words, federal legislation frequently hedges its bets. From the Commonwealth’s point of view, the ability to rely on a wide range of powers has been useful in fending off constitutional challenges to environmental legislation; while from the states’ view, the irony is that legal challenges initiated by them to Commonwealth involvement in environmental issues has served only to enable the High Court to define or redefine the extent of Commonwealth–state powers in favour of the Commonwealth, thus not only upsetting a long-held notion that legislative

capacity in respect of environmental affairs rests primarily with the states, but also supporting the inevitable conclusion that Commonwealth power to legislate on environmental issues is not constitutionally restrained. 5.7 Legislative power does not, however, necessarily equate to, or translate into, political will; there are very good reasons, both practical and political, why the Commonwealth would not wish to ‘cover the field’ with environmental regulation. Since the heady days of constitutional challenges in the 1980s, and with the cooperation of the states and territories, a great deal of effort has gone into redefining the Commonwealth legislative role in relation to the environment. Consequently, attention [page 140] has been diverted away from potential constitutional challenges towards nationally agreed approaches to managing environmental issues.23 Indeed, more recent federal legislation may cite the fact that it incorporates a national cooperative approach,24 or provide that the federal law does not affect the concurrent operation of state laws.25 On the other hand, it may operate deliberately to the exclusion of state laws; however, this is usually with the agreement of the states.26 Nevertheless, realisation and recognition of the extent of Commonwealth power to legislate on environmental issues undoubtedly provides a solid basis of power on which to enter into and conduct negotiations with the states on national environmental policy.

The trade and commerce power 5.8 The Constitution s 51(i) allows the Commonwealth to make laws with respect to ‘trade and commerce with other countries and among the states’. This is significant for environmental objectives since most resource development — forestry, mining, agriculture and fisheries — as well as manufacturing enterprise is carried on for the purposes of overseas and interstate trade. This power enables the Commonwealth to require that export and import approvals be obtained for goods leaving and entering Australia,27 and has been interpreted as enabling, therefore, the Commonwealth to issue approvals conditional on environmental factors or refuse approvals altogether for environmental reasons. For example, in Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1, the High Court upheld the Commonwealth’s decision to refuse to grant export approval for mineral sands from Fraser Island on environmental and social grounds; while in Australian Conservation Foundation Inc v Commonwealth (1980) 28 ALR 257,

it was accepted that the Commonwealth could apply EA procedures under the (now repealed) Environment Protection (Impact of Proposals) Act 1974 (Cth) to a tourist development in Queensland for which foreign investment had been sought. 5.9 Using this power, the Commonwealth could also reach back through the production process by regulating methods of production of goods destined for interstate trade or export, so as to ensure compliance with desirable environmental standards. Products that are not designed, manufactured or produced in an environmentally friendly manner could be prohibited from interstate trade or export. Such an exercise of power is unlikely to be defeated by the argument that at the time of production such goods could not be identified as destined for interstate trade or export. The existence of such a power would help to balance out any lack of power [page 141] under the corporations power with respect to non-trading corporations. Lindell foresees a possible restriction to the use of this power — ‘the possible irrelevance of the environment to the subject matter of the commerce power, may continue to pose an obstacle to the use of the power to directly28 control mining or the production of goods even when they are carried on for export’ — but this potential problem is unlikely to prove critical because of the breadth of the corporations power (see 5.16), which extends to intrastate as well as export activities.29 The trade and corporations powers could, for example, be used to support Commonwealth legislation introducing the concept of ‘extended producer responsibility’ (EPR) or ‘product stewardship’; that is, continuing legal responsibility for goods that become obsolete or are no longer wanted by the consumer and which would otherwise be discarded and treated as waste.30 5.10 With respect to interstate trade, it had been considered for many years that the Constitution s 92, which guarantees freedom of interstate trade and commerce, effectively acted as a brake on too wide an interpretation of the trade and commerce power. Federal environmental regulations made under the trade and commerce power are not likely to contravene s 92,31 but state regulation remains susceptible.32

External affairs 5.11 Unlike some countries, international treaties are not ratified by the Commonwealth parliament but by the Commonwealth government, although

before ratification the Commonwealth will voluntarily consult with the states.33 Ratification marks the formal acceptance of the terms of a treaty by Australia. The effect is that Australia thus takes on international obligations under the treaty, and becomes subject to whatever enforcement mechanisms are embodied in the treaty; however, ratification has no direct effect on domestic law within Australia.34 For the terms of a treaty to be binding within Australia, the Commonwealth has to give effect to the treaty by enacting domestic legislation. The Constitution s 51(xxix) authorises the Commonwealth parliament to enact laws relating to ‘external affairs’. Most Commonwealth environmental legislation has been enacted, in fact, to give effect to [page 142] the terms of international conventions: see Table 5.1. Not surprisingly, developments in international law have a significant impact on the development of environmental policy and law within Australia.35 The Tasmanian Dam case (Commonwealth v Tasmania (1983) 46 ALR 625)36 determined that the Commonwealth may validly enact domestic legislation in relation to ‘external affairs’ if the subject matter of the legislation is of ‘international concern’, that is, it has the capacity to affect the country’s relations with other nations;37 or if, in an appropriate manner, it implements the purposes of any international treaty or agreement. Where legislation relies on the implementation of a treaty then no independent requirement of ‘international concern’ is necessary. In this case, the validity of Commonwealth legislation designed to prevent the Tasmanian government from constructing a dam on the Gordon River in the south-west Tasmanian wilderness was upheld in so far as prohibitions contained in the legislation were appropriate to the Commonwealth carrying out its international obligations under the Convention for the Protection of the World Cultural and Natural Heritage (the World Heritage Convention).38 5.12 A matter will naturally be of international concern if it forms the subject matter of an international agreement, but it is possible, even in the absence of any treaty, that domestic legislation simply reflecting ‘international concern’ may be validly enacted, although the ‘bona fides’ of such legislation may possibly need to be more carefully scrutinised to make sure that the purported reliance on the external affairs power is not merely a device to attract power to the Commonwealth to legislate on a particular issue.39 Former Attorney-General, Senator Gareth Evans, denied that the outcome of the Tasmanian Dam case could encourage the federal government to embark

on a program of treaty initiation and implementation in order to attract domestic constitutional power in areas otherwise outside its jurisdiction.40 Nevertheless, the [page 143] Commonwealth has continued to legislate to reflect the content of international agreements. As Crawford has remarked:41 … [external affairs] is likely to continue to prove a major source of power with respect to environmental management … given the growth of treaty making, and other international activity, on such matters as global warming, deforestation, acid rain and the depletion of the ozone layer.

It has been argued, however, that a treaty that is purely aspirational in nature, and imposes no legally binding obligations on the parties, such the Climate Change Convention, would not support use of the external affairs power to justify domestic legislation by reference to the treaty.42 The necessity for such an expressly stated obligation seems to have been denied by the majority of the High Court in the Tasmanian Dam case; though, as it happened, the treaty in question, the World Heritage Convention, does seem to oblige parties to the Convention to take action to protect property of ‘outstanding universal value’ situated on its territory. This obligation was later successfully argued in the High Court in Richardson v Forestry Commission [1988] HCA 10 (the Tasmanian Forests case),43 to entitle the Commonwealth under the external affairs power to pass legislation44 providing interim protection of an area pending inquiry into whether that area exhibited qualities that would justify its nomination for world heritage listing. As Mason CJ and Brennan J remarked at [33]: If part of an area might possess world heritage characteristics and if that part might be damaged unless the area is protected by legislative measures to preserve that part, a failure to take those measures involves a risk that the Convention obligation will not be discharged. It is only by taking those measures that the risk of failing to discharge the Convention obligation can be avoided. As the external affairs power is a plenary power, it extends to support a law calculated to discharge not only Australia’s known obligations but also Australia’s reasonably apprehended obligations.

[page 144] Table 5.1 below indicates the various treaties on which Commonwealth legislation relies, or partly relies, for constitutional validity: Table 5.1 Application of external affairs power Commonwealth Act

International Treaty

Seas and Submerged Lands Act 1973 Convention on the Territorial Sea and the Contiguous Zone; Convention on the Continental Shelf Historic Shipwrecks Act 1976 Agreement between the Netherlands and Australia concerning old Dutch shipwrecks Antarctic Treaty (Environment Protocol on Environmental Protection) Act 1980 Protection to the Antarctic Treaty; Convention for the Conservation of Antarctic Seals Antarctic Marine Living Resources Convention on the Conservation of Conservation Act 1981 Antarctic Marine Living Resources Environment Protection (Sea Convention on Civil Liability for Oil Dumping) Act 1981 Pollution Damage Protection of the Sea (Civil Liability) Convention on Civil Liability for Oil Act 1981 Pollution Damage Protection of the Sea (Powers of Convention relating to Intervention Intervention) Act 1981 on the High Seas in Cases of Oil Pollution Casualties; Protocol relating to Intervention on the High Seas in relation to Pollution by Substances other than Oil Protection of the Sea (Prevention of Convention for the Prevention of Pollution from Ships) Act 1983 Pollution from Ships Hazardous Waste (Regulation of Basel Convention on the Control of Exports and Imports) Act 1989 Transboundary Movements of Hazardous Wastes and their Disposal Ozone Protection and Synthetic Vienna Convention for the Greenhouse Gas Management Act Protection of the Ozone Layer 1989 Antarctic Mining Prohibition Act Antarctic Treaty 1959; Protocol on 1991 Environmental Protection 1991 Environment Protection and Convention on the World Cultural Biodiversity Conservation Act 1999 and Natural Heritage; Convention on the Conservation of Migratory Species of Wild Animals; RAMSAR Convention on Wetlands of International Importance; Convention on International Trade in

Endangered Species [page 145] Commonwealth Act National Greenhouse and Energy Reporting Act 2007 Water Act 2007

Clean Energy Act 2011 (now repealed) Product Stewardship Act 2011

Biosecurity Act 2015

International Treaty United Nations Framework Convention on Climate Change; Kyoto Protocol Convention on Biological Diversity; Convention on the Conservation of Migratory Species of Wild Animals; RAMSAR Convention on Wetlands of International Importance; Convention to Combat Desertification; Bilateral agreements with China, Japan and Korea with respect to migratory birds (CAMBA, JAMBA, ROKAMBA) United Nations Framework Convention on Climate Change; Kyoto Protocol Objects include to contribute to Australia meeting its international obligations (not specified) and to reducing the amount of greenhouse gases emitted WTO Agreement on Sanitary and Photosanitary Measures (SPS Agreement); United Nations Convention on the Law of the Sea (UNCLOS)45

5.13 Where the implementation of an international treaty is relied on for the constitutional legitimacy of environment protection legislation, the content of that legislation must reflect appropriate means of, and be adapted to, implementing treaty obligations.46 The test for conformity is whether the legislation is conducive to the performance of the obligation imposed by the Convention. For example, specific prohibitions on road construction in world heritage areas would not be valid because they might not be appropriate to the management of all world heritage areas. They might, for example, preclude the creation of access for fire management, which would be an integral part of

the management of some world heritage properties. On the other hand, a provision that allowed the minister to outlaw road construction as part of [page 146] the management priorities for a world heritage area would be valid because such a restriction would be focused on and restricted to the management of a particular area.47 In fact, in the Tasmanian Dam case, the whole of s 9 of the (now repealed) World Heritage Properties Conservation Act 1983 (Cth) (the World Heritage Act), except for ss 9(1)(h) and 9(2), was struck out by the High Court because it purported to prohibit specific activities (for example, the carrying out of excavation and mining works, destruction of trees, use of explosives, and others) that it would not be necessary, in all cases, to prohibit in order to achieve the objectives of the Treaty. Such ‘blanket’ prohibitions could not be justified. This, however, could be contrasted with the power given in s 9(1)(h) to prescribe specific acts in relation to particular property that it would be unlawful to do or carry out without ministerial authority. This power to prescribe is clearly not a ‘blanket’ prohibition, but a power that is linked to specific threats to particular identified property, although the acts so prescribed may, and indeed did, encompass such activities as those covered by s 9(1)(a)–(g). The World Heritage Act s 9(1) was subsequently amended to take into account the views expressed by the High Court. 5.14 The Act was also amended to include, within the definition of identified property in respect of which protective action could be taken, property that was the subject of any inquiry into its cultural or natural heritage, including properties that, although not yet inscribed on the World Heritage Register, had been nominated for listing.48 This enabled the Commonwealth to take action against the threat of continued logging of the Lemonthyme and Southern Forests in Tasmania before the inquiry was complete, by including those forests as identified property under the World Heritage Act. But another prime motivation for moving so quickly was to ensure that North Queensland rainforests, which had also been nominated for world heritage listing, were adequately protected in the interim. Consequently, the Commonwealth sought to invoke restrictions on specified activities within the wet tropical rainforests of north-east Australia. This action was challenged by the Queensland government in Queensland v Commonwealth (1988) 62 ALJR 143, on the basis that inclusion of the

property on the World Heritage Register was not conclusive of its status as ‘natural heritage’ under the World Heritage Act, and that such status could not be ascribed merely by a legislative or executive assertion to that effect. This claim failed, the court holding that such a listing was conclusive of the status of the area and of Australia’s international obligations to protect it. 5.15 The question of bona fides was raised again in the Tasmanian Forests case,49 but the High Court stressed that, in the absence of any evidence to the contrary, the presumption would be that the Commonwealth had acted in good faith (at 295–6): In making provision for the establishment of the Commission of Inquiry and for the regime of interim protection of the protected area, Parliament has made a legislative

[page 147] judgment about the situation and the Convention obligation that may be proved to exist. It is not for us to impugn the bona fides of that judgment. It is enough that the legislative judgment could reasonably be made or that there is a reasonable basis for making it.

Evidence had been placed before the court that parts of the protected area were indeed likely to fulfil the world heritage qualities of ‘outstanding universal value’. The appropriateness of the provisions of the relevant Act (the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth)) was then called into question. First, it was argued that the terms of reference of the inquiry were broader than was justified by the World Heritage Convention in that the commission was charged also with evaluating the forest industry in Tasmania to establish whether there were viable economic alternatives to exploitation of the disputed forests. Not surprisingly, the court held that it was clearly relevant for the Commonwealth to be informed as to the economic consequences of any action taken to fulfil its responsibilities under the Convention. Second, it was argued that the protective provisions of the World Heritage Act s 16, which purported to prohibit such destructive activities as tree-felling, excavation and road construction in the area, were invalid on the same basis that s 9(1)(a)–(g) had been invalidated in the Tasmanian Dam case. The court held, however, that this time the prohibitions were valid, because they were both more circumscribed than in the Tasmanian Dam case, and applied only in the particular protected area. Further, s 16 of the Act instructed the minister, in deciding whether to give consent to the activities listed in s 16, to have regard only to Australia’s international obligations under the Convention. The introduction of the

consent provision and instruction in relation to it clearly helped to convince the court that the minister was not entitled to refuse consent unless it was necessary to secure protection of the heritage values of the area, and thus that the prohibitions contained in s 16 were appropriate to Australia’s obligations under the Convention. Further, although some of the activities sought to be prohibited were of so trivial a nature as hardly to constitute a risk of damage to the world heritage values of the area, while others (such as fire-breaks) might be of positive benefit, the legislation was still a means for effectuating a desired end that was within power.

The corporations power 5.16 The Constitution s 51(xx) empowers the Commonwealth to legislate with respect to ‘foreign corporations, and trading or financial corporations’. The Tasmanian Dam case clarified certain important aspects of this power in relation to trading corporations. First of all, a corporation is a ‘trading’ corporation if a substantial part of its activities are trading activities. Applying this test in the Tasmanian Dam case, the Tasmanian Hydro-Electric Commission was found to be a trading corporation, because one of the principal functions of the commission was the sale of electricity. 5.17 Further, it is also clear since the Tasmanian Dam case that the power under s 51(xx) is not confined to regulating the trading activities of trading corporations. Non-trading activities may also be regulated so long as they are being carried out for the purpose of engaging in trading activities. In the Tasmanian Dam case, this [page 148] interpretation gave the Commonwealth power to prohibit the construction of a dam and associated works, which although not in themselves trading activities, were to be undertaken pursuant to engaging in a trading activity, namely the sale of electricity. Whether the Commonwealth may regulate any activity of trading corporations is more problematic; three members of the court in the Tasmanian Dam case thought it could.50 5.18 The scope of this power is therefore very significant. As (later Justice) Wilcox pointed out:51 Almost all significant development in this country is carried out by trading corporations, either on their own account or on behalf of natural persons or governments. If, as now seems clear, the Commonwealth may regulate their activities, in so far as they are ‘for the purposes of’ trade, then it has a wide scope for environmental control.

It would, for example, be possible for the Commonwealth to enact endangered species legislation in which it regulated the activities of corporations in relation to habitat. It would be possible to impose pollution controls upon corporations carrying on trading activities. It would be possible to prohibit trading corporations adversely affecting items on the Register of the National Estate. It would be possible to regulate the conduct of corporations in relation to the supply in the course of trade of no-deposit beverage containers. The list is almost endless.

Zines agreed:52 [T]he clear result of the case is that the Commonwealth may regulate and control all acts of trading and financial corporations done for the purposes of trade. This includes all, or practically all, manufacture, mining or agriculture performed by these corporations.

5.19 Since this interpretation of the corporations power delivers to the Commonwealth enormous influence over the activities of domestic trading corporations, it is obviously pertinent to ask whether the application of this power could be avoided in any way. Crawford has remarked:53 It might perhaps be possible to organise one’s way out … of s 51(xx), for example, by having the actual process of mining etc which was deleterious to the environment performed by a corporation which did not sell the items, made no profit, but simply transferred them to another corporation which did sell them. But that would undoubtedly be a related corporation, whose profit motive could be attributed to the transferor, so that such devices are unlikely to be successful.

5.20 Since the prospects of deliberate avoidance are probably remote, however,54 the corporations power would seem potentially to be a very influential tool in [page 149] fostering more ‘environmentally friendly’ corporate behaviour. A good example of the possibilities would be the more recent action by the Commonwealth to take initial first steps to respond to the problems caused by climate change.55 The Energy Efficiency Opportunities Act 2006 (Cth) places obligations on corporations that trigger a certain threshold of energy use, to register, supply information, carry out energy efficiency opportunities assessments, and submit an assessment plan for approval. The NGERA requires corporations that meet threshold emissions of greenhouse gases to register, supply information and submit reports about energy production and consumption; greenhouse gas projects; and reductions, removals and offsets of greenhouse gas emissions.

Financial powers 5.21 The Commonwealth enjoys a number of powers relating to finance

that are or may be used for the purpose of promoting environmental measures: special purpose grants and loans (s 96), taxation (s 51(ii)) and federal spending powers (ss 81–83).

Special purpose grants 5.22 Under the Constitution s 96, the Commonwealth may grant financial assistance and make loans to the states.56 This enables the Commonwealth not only to make special grants for environmental purposes, but also to make environmental conditions part of a loan or grant.57 For example, the Commonwealth has made it part of an arrangement with New South Wales that Commonwealth grants would be provided for water reforms so long as that State implemented water sharing plans.58 Acting under this power, the Commonwealth has also provided funds for: soil, water and air quality conservation projects — States Grants (Air Quality Monitoring) Act 1976 (Cth) (now repealed);59 States Grants (Water Resources Measurement) Act 1970 (Cth) (now repealed); River Murray Water Agreement [page 150] Act 1983 (Cth) (now repealed);60 National Water Resources (Financial Assistance) Act 1978 (Cth) (now repealed); Soil Conservation (Financial Assistance) Act 1986 (Cth) (now repealed). The latter two have been superseded by the Natural Resources Management (Financial Assistance) Act 1992 (Cth); conservation and protection of the national estate — Urban and Regional Development (Financial Assistance) Act 1974 (Cth); the fulfilment of parks management programs and acquisition of land for nature conservation programs — States Grants Nature Conservation Act 1974 (Cth); Environment (Financial Assistance) Act 1977 (Cth). Both have been repealed in favour of the comprehensive funding arrangements developed under the Natural Heritage Trust of Australia Act 1997; and61 environment protection, NRM and sustainable agriculture62 — Natural Heritage Trust of Australia Act 1997.

Taxation

5.23 The Commonwealth’s power to make laws with respect to taxation encompasses income tax, customs and excise, and any other taxes, such as levies, that might be lawfully imposed by the federal government. The taxation power may be also be used to encourage non-revenue raising purposes; and as such ‘would support a wide range of initiatives designed to compel compliance with environmental standards and goals’.63 Such taxes could be used, for example, to encourage environmentally friendly products, processes and activities; and discourage environmentally harmful practices,64 a policy that is supported and advocated in the Commonwealth’s own discussion paper on ecologically sustainable development (ESD).65 An example of a direct tax aimed at encouraging environmentally responsible behaviour is the Clean Energy (Fuel Tax Legislation Amendment) Act 2011 (now repealed), the stated purpose of which was to provide an effective carbon price on business through the operation of the fuel tax system. Direct taxes can also be applied to extraction of natural resources; for example, the petroleum resource rent tax imposed on the profits generated from petroleum projects under the Petroleum Resource Rent Tax Assessment Act 1987 (Cth); and the minerals resource rent tax applied to the profits from certain coal and iron ore operations under the Minerals Resource Rent Tax Act 2012 (Cth) (now repealed); as well as royalties imposed on production of petroleum under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) Sch 4. [page 151] An example of a direct concession for rewarding environmentally friendly activity is the tax deductions or capital gains concessions that are available for donations of heritage property, making environmental gifts and to reward entry into heritage agreements.66 Gifts to specified ‘environment recipients’ (private environmental organisations) are also tax deductible;67 as are gifts to other environmental organisations whose principal purpose is the protection and enhancement of the natural environment, or of a significant aspect of the natural environment; or the provision of information or education, or the carrying on of research, about the natural environment.68 Examples of levies that have been introduced to fund environmental outcomes include the Commonwealth’s product stewardship oil levy, imposed on producers and importers of oil to offset the costs of benefits paid to oil recyclers as an incentive to undertake increased re-refining and reuse of used oil;69 the environment plan levy, imposed on offshore title holders under the Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Act 2003 (Cth); and the rehabilitation offset provided under the Minerals Resource Rent Tax Act 2012 (Cth) ss 225.1–225.25 (now repealed). The states

may also apply levies; for example, on landfill operations designed to divert waste away from landfill and into reuse and recycling.70 The tax system can also be used to offset charges imposed by other legislation that could discourage the uptake of environmentally sustainable activities. For example, the stated purpose of the Energy Grants (Cleaner Fuels) Scheme Act 2004 (Cth) (now repealed) was to fully offset any excise duty or customs duty payable in relation to the manufacture or importation of a number of renewable and cleaner burning fuels.71 5.24 Although ‘taxes’ appear in various forms, including direct taxes, levies, fees and duties, these should not be confused with the sorts of ‘market-based’ approaches discussed at 7.40. A tax is essentially directed by government not by market forces. The carbon pricing mechanism introduced under the (now repealed) Clean Energy Act 2011 (Cth), referred to by some as a ‘carbon tax’, was a type of hybrid, operating from July 2012 as a tax by reason of the initial price of a unit of carbon being set by the government, but then set to move in 2015 to an emissions trading scheme that [page 152] would be dictated by market forces.72 A hybrid approach is also being taken to the co-regulatory recycling scheme for televisions, computers, printers and computer products introduced under the Product Stewardship Act 2011 (Cth) and Product Stewardship (Televisions and Computers) Regulations 2011. Industry will fund and implement the scheme to meet outcomes determined by government; the alternative to a co-regulatory scheme could be mandatory taxation imposed by a levy, as in the case of the oil producers. 5.25 Australian tax law tends to encourage rather than mandate the adoption of environmentally acceptable behaviour. Under the Income Tax Assessment Act 1997 (Cth), expenditure incurred for the sole or dominant purpose of carrying on an eligible ‘environmental protection activity’ (EPA) is generally deductible.73 Eligible activities include preventing, combating or rectifying pollution, and treating, cleaning up, removing or storing waste. 5.26 Capital works deductions are also available for ‘environment protection earthworks’, which are capital works that are constructed as part of carrying out an EPA.74 Other examples of tax-deductible expenditure would include costs incurred in undertaking environmental audits; costs associated with complying with the licensing requirements of state regulatory authorities; works undertaken for water conservation and management; prevention of soil erosion; tree planting and protection of remnant vegetation;

carbon offsetting;75 whole farm planning; fencing; removal of pests and weeds; and soil improvement. Depreciation on pollution control technology and other environmentally friendly items is also allowable.76 Tax treatment for expenditure on landcare operations and using land for permanent conservation purposes however is more uncertain.77 Conversely, of course, taxation imposts or concessions can lead to pernicious taxation outcomes that reward environmentally harmful activities. Concessional taxation of company cars through the fringe benefits scheme has been targeted as needing reform,78 and landfill levies may contribute to illegal dumping activity. The government-commissioned Henry Review79 of the taxation system recommended that government should continue to monitor tax concessions aimed at supporting environmental outcomes with a view to replacing them with targeted [page 153] spending programs, but otherwise had little to say about environmental taxes except in relation to carbon pollution.80

Federal spending powers 5.27 The ability of the federal government to spend money for purposes that are incidental to the legislative powers of parliament is not in question.81 It was also thought, until recently, that Commonwealth spending powers were not in any case restricted, and that the Commonwealth was free to spend money on any project it chose.82 This would have enabled the Commonwealth to pursue environmental objectives otherwise than by specific purpose grants to the states.83 But two decisions of the High Court have now changed this assumption, limiting the Commonwealth spending power to subjects over which it has legislative power.84 Most federal spending on environmental initiatives should not be affected by this.85 For example, it has always been accepted that the Commonwealth could engage in scientific research through the CSIRO. Federal spending on environmental good works has also taken place under the auspices of the Natural Heritage Trust Reserve, which received $1.35 billion from the partial privatisation of Telstra and subsequent ongoing funding.86 The Natural Heritage Trust of Australia Act 1997 was the vehicle through which individuals, organisations and states could be granted financial assistance87 for purposes that included specified projects88 — the National Vegetation Initiative; the Murray–Darling 2001

Project; the National Land and Water Resources Audit; the National Reserve System (NRS); and the Coasts and Clean Seas Initiative, as well as environmental protection;89 supporting sustainable agriculture;90 and NRM.91 The Natural Heritage Trust itself, together with a number of other funding initiatives, was replaced, from July 2008, by a new program, Caring for Our Country, which itself has now been replaced by the National Landcare Program, which currently has four strategic objectives: sustainable landscape management; sustainable management of natural resources by farmers and [page 154] fishers; community participation and education in sustainable resource management; and restoration and rehabilitation of the natural environment.92 The Clean Energy legislation package (now substantially repealed)93 also relied heavily on federal spending initiatives; for example, by providing assistance to emissions-intensive and trade-exposed industries through the Jobs and Competitiveness Program, and to electricity generators to ensure energy security; and helping households to meet the anticipated price rises in the use of energy. It has now been doubted, however, whether one part of the package that remains, the Carbon Farming Initiative (CFI) that governs the purchase of non-Kyoto eligible CFI credits, is referable to any head of legislative power, which could leave it open to legal challenge.94

People of any race 5.28 The Constitution s 51(xxvi) grants to the Commonwealth a power to make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’. The World Heritage Properties Conservation Act 1983 (Cth) ss 8 and 11 relied on this power to provide protection for Aboriginal sites, relics or artefacts that would be threatened by the proposed Gordon-below-Franklin power scheme in Tasmania. Section 11 prohibited much the same works as those prohibited under s 9; however, unlike most of s 9, s 11 was only applied to specific sites of some particular significance to Aboriginal people. In that event, a majority in the Tasmanian Dam case held s 11 to be a ‘special’ law within the meaning of s 51(xxvi). In reaching this conclusion, two important issues were clarified: first, that a law could still be a ‘special’ law even though it applied to all Australians and not just Aborigines; and second, that a law with respect to the cultural heritage of a people is a law

with respect to the people of that race. ‘Special’ is a reference to the differential operation of a law on the people of a particular race.95 This head of power has been relied on in the enactment of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and justifies parts of the EPBCA that, for example, apply to Commonwealth reserves in the Kakadu and Uluru regions.96 [page 155]

Coastal waters 5.29 In the Seas and Submerged Lands Act 1973 (Cth), the Commonwealth claimed sovereignty over the territorial sea of Australia to the exclusion of the states. This declaration conforms with the position in international law (see 4.25), and was upheld as constitutionally valid by the High Court of Australia in New South Wales v Commonwealth (1975) 8 ALR 1. The ‘territorial sea’ was interpreted by the High Court in Bonser v La Macchia (1969) 122 CLR 177 to mean the seas described in the Territorial Waters Jurisdiction Act 1878 (UK), the legislation that applied to the former colonies at the time of Federation, and which described the territorial sea as ‘any part of the open sea within one marine league of the coast measured from low-water mark’. A marine league approximates to three geographical miles. Such a finding also reflected the common law position before Federation; the jurisdiction of the colonies at common law ended at the low water mark, and the declaration of a territorial sea in the UK Act was interpreted as being taken for the benefit of the United Kingdom, not for the benefit of colonial territories.97 In other words, the states have never been entitled to a territorial sea, either at common law or in international law. So far as fisheries are concerned, this position is of course modified by the Commonwealth Constitution s 51(x), which gives jurisdiction to the Commonwealth to make laws for fisheries in Australian waters beyond territorial limits, thus allowing coastal states and territories to manage fisheries resources within territorial limits, at least to the extent that the exercise of some other constitutional head of power by the Commonwealth does not affect such a right.98 Since the effect of the decision in New South Wales v Commonwealth (1975) 8 ALR 1 meant that the states effectively had no ‘coastal waters’ and therefore (apart from fisheries) no rights to access natural resources, the states and territories immediately set about trying to

limit the effect of the High Court’s decision. A declaration of sovereignty in favour of the Commonwealth does not, of course, preclude the Commonwealth and the states from agreeing to some other working arrangement, and following the High Court decision, the states negotiated with the Commonwealth for conferment of powers over coastal waters. This resulted in an agreement (the Offshore Constitutional Settlement) in 1979, whereby proprietary rights in, and legislative powers over, the seabed and its resources within a three nautical mile limit of the states were conferred on all states and the Northern Territory. This agreement was enshrined in legislation in 1980.99 5.30 The legislation does not, apparently, affect the rights of sovereignty of the Commonwealth since declarations of sovereignty in the Seas and Submerged Lands Act have not been revoked. Section 16 of that Act now merely states that the coastal waters legislation is not to be regarded as inconsistent with the Seas and Submerged Lands Act. The states can thus now manage and reap the benefits of petroleum and [page 156] minerals exploration100 of the seabed within their ‘territorial waters’, license other activities within this territory (such as fishing), and also enact their own environment protection legislation to apply to those waters. The federal government has not, however, given up power also to legislate with respect to the coastal zone: the State Powers Acts specifically reserve to the Commonwealth power to make laws for those waters that will prevail over state laws in the event of any inconsistency. The federal government has made it clear, for example, that, by reason of its international obligations in coastal waters, it will apply federal marine pollution legislation to coastal waters in the absence of complementary and adequate state controls.101 The constitutional basis on which the coastal waters legislation rests has been a matter of some conjecture among commentators,102 though most seem to agree that it could all be repealed by the Commonwealth without reference to the states.103 It seems to depend on the Constitution s 51(xxxviii), which allows the Commonwealth to make laws at the request or with the concurrence of the states in respect of matters that could, at the time of the establishment of the Constitution, only be legislated for by the Parliament of the United Kingdom or the Federal Council of Australasia. The validity of the Offshore Constitutional Settlement has been subsequently upheld by the High Court in Port MacDonnell Professional Fisherman’s Association Inc v South

Australia (1989) 88 ALR 12 and recognised in Harper v Minister for Sea Fisheries (1989) 88 ALR 38.

Fisheries 5.31 The Constitution s 51(x) grants legislative power to the Commonwealth with respect to fisheries outside ‘territorial limits’, which, for the purpose of determining jurisdiction between the Commonwealth and the states, is to be interpreted as equivalent to the Imperial ‘territorial sea’ of three nautical miles from the low water mark.104 The states’ right to manage fisheries within this ‘territorial sea’ was recognised [page 157] in the (now repealed) Fisheries Act 1952 (Cth) and its successor, the Fisheries Management Act 1991 (Cth). The exclusion of the Commonwealth from exercising jurisdiction over coastal fisheries does not, of course, mean that the Commonwealth and state governments cannot make joint or exclusive arrangements for managing fisheries, particularly those that migrate between Commonwealth and state waters or those that are found principally within one marine area or jurisdiction. In practice, there are many such arrangements, whereby the states may gain management powers over fisheries beyond the outer limits of the coastal waters of a state by agreement with the Commonwealth,105 while joint management arrangements may be made for state or Commonwealth fisheries.106 Neither is the Commonwealth in fact prohibited from legislating for fisheries within state waters if it so desires. The Commonwealth could not use the fisheries head of power to do this, but it could, for example, use its external affairs or trade and commerce powers. The heads of power in s 51 are not exclusive; any one or more may be used to justify federal legislation.107

Acquisition of property on ‘just terms’ 5.32 The Commonwealth parliament has power to make laws with respect to the acquisition of property for any purpose for which it has power to make laws, although such acquisition must be on ‘just terms’ (s 51(xxxi)); in other words, compensation must be paid. In Newcrest Mining (WA) Ltd v BHP Minerals Ltd & Commonwealth (1997) 147 ALR 42 at 149, Kirby J, in the High Court, remarked that this provision was a protection against ‘arbitrary and uncompensated deprivation of property’. The concept of ‘property’ was

discussed in Chapter 3, particularly in relation to the distinction between property and permissive ‘rights’ such as licences. The term ‘acquisition of property’ must, however, be viewed as a ‘compound conception’ involving a number of elements:108 the law must affect property rights; there must be an acquisition, not just a mere sterilisation, extinguishment, deprivation, modification or restriction; the law must be characterised as one ‘with respect to’ the acquisition of property; and lastly it must provide for ‘just terms’. The compound nature of this provision had to be applied, for example, in Commonwealth of Australia v Western Mining Corp Resources Ltd [1998] HCA 8, where the respondent had been granted a statutory permit to explore for petroleum in an area then the subject of a dispute between Australia and Indonesia over rights of sovereignty. The dispute was eventually settled by agreement between the two nations and the Petroleum (Australia–Indonesia Zone of Cooperation) Act 1990 (Cth) was enacted to give effect to the agreement. The provisions of this Act effectively abrogated rights of exploration conferred under the earlier permit, and the respondents claimed [page 158] compensation for the considerable expenditure that had been outlaid in exploring the permit area. The High Court interpreted the conferment of the permit as conferring a right of property that had subsequently been extinguished. As Kirby J said at [222]: The scheme of the Act envisages that an applicant, which has held a permit to explore for petroleum, may secure a petroleum lease and, upon discovery of petroleum, a production licence. So long as the statutory conditions are fulfilled, this is a matter of entitlement, not of administrative discretion. The need for enforceable entitlements is obvious enough. Few corporations engaged in the chancy business of petroleum exploration at sea would invest the large amounts of capital required (and submit to the binding conditions of the permits, leases and licences) if, upon the discovery of petroleum, the governmental grantors could simply thank the venturers for their efforts and either retain the benefits for themselves or assign those benefits to others. The quid pro quo for the investment and obligations envisaged by PSLA and inherent in exploration for petroleum on the Australian continental shelf was the enforceable legal assurance that the rights of the venturers would be protected and could be enforced under the law of Australia.109

5.33 Compensation, however, is only payable if property is ‘acquired’, and extinguishment or sterilisation of a right of property does not necessarily amount to an acquisition. In Mutual Pools Pty Ltd v Commonwealth (1994) 179 CLR 155, Deane and Gaudron JJ remarked that to constitute an acquisition there must be an obtaining of at least some identifiable benefit or advantage relating to the ownership or use of the property. Mere sterilisation of a particular land use does not necessarily amount to an acquisition. In

Commonwealth of Australia v Western Mining Corp Resources Ltd [1998] HCA 8, the property right conferred by the permitting arrangements described above arose out of the statutory scheme, and the continued existence of the right depended on continuing statutory support. Such rights would be capable of effecting an acquisition if transferred to a third party; however, the provisions of the legislation extinguishing such rights did not, in this case, have such an effect. Brennan CJ said at [17]: Where a law of the Commonwealth creates or authorises the creation of a right, a statutory modification or extinguishment of the right effects its acquisition if, but only if, it modifies or extinguishes a reciprocal liability to which the party acquiring the right was subject … But where a law of the Commonwealth creates or authorises the creation of a right that does not impose on the Commonwealth a reciprocal liability, the mere extinguishment of the right effects no acquisition of the right by the Commonwealth. The Commonwealth’s position remains unchanged by the extinguishment.

A majority of the court agreed therefore that, in this case (at [24]): … the statutory modification or extinguishment of a permit or an interest in a permit is not an acquisition of property by the Commonwealth, for the Commonwealth was under no liability reciprocal to the permit or interest and acquires no benefit by the modification or extinguishment.

[page 159] 5.34 In Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 46 ALR 625, Tasmania argued that because the Commonwealth had passed legislation forbidding the construction of a hydro-electric dam in an area of high conservation value in western Tasmania, the Commonwealth had thereby ‘acquired’ the property and compensation was therefore payable. The High Court, rejecting this argument, pointed out that sterilising this particular form of land use did not thereby prohibit other uses to which the property might be put and the Commonwealth had not effectively acquired the property. In Newcrest Mining (WA) Ltd v BHP Minerals Ltd & Commonwealth (1997) 147 ALR 42, however, the effective termination of a right to mine was considered to be an acquisition of property. The case concerned mining leases over Crown land at Coronation Hill in the Northern Territory. Subsequent to the issue of the leases that land was added to the Kakadu National Park. Under the National Parks and Wildlife Conservation Act 1975 (Cth), mining was prohibited. The lessees claimed that the Commonwealth had therefore effectively acquired the leases, an argument that was accepted by a majority of the High Court. Although this case has been criticised on the basis that it fails to take account of the public interest in the sterilisation of the property

interest, it is nevertheless consistent with the finding in Tasmanian Dam. In Newcrest, there was no other form of land use open to the plaintiff following the sterilisation of that particular form of land use. Effectively, therefore, the Commonwealth had acquired the property, the benefit passing to the Commonwealth being the unexpired term of the mining leases. The law which sterilised Newcrest’s right under its mining lease to carry on ‘operations for the recovery of minerals’ on land vested in the Commonwealth was … a law for the acquisition of property because it extinguished the liability of the Commonwealth to have those minerals extracted from its land and thereby enhanced the property of the Commonwealth.110

By contrast, in Spencer v Commonwealth of Australia [2015] FCA 754 at [4], the plaintiff’s claim that his property had been ‘acquired’ by a refusal to consent to clearing under the Native Vegetation Act 2003 (NSW) (NVA) was dismissed by the Federal Court. Mortimer J held that, even though there was what could be characterised as a ‘sterilisation’ or a ‘taking’ because the farm was no longer commercially viable as a result of the impact of the State’s native vegetation laws, there was no acquisition by the State nor by any other person of an interest or benefit of a proprietary nature in the bundle of rights Mr Spencer held in his farm.111 5.35 In previous litigation involving Mr Spencer it had been argued that s 51(xxxi) could be triggered if Commonwealth financial assistance legislation subsequently is used to enable a state government to acquire property otherwise than on just terms. In Spencer v Commonwealth of Australia [2008] FCA 1256, the plaintiff claimed that the Native Vegetation Act 2003 (NSW) (NVA), under which the plaintiff had been prohibited from clearing his land without consent, thereby deprived him of any ability to reasonably use the land or enjoy the benefits of the usual incidents of ownership, [page 160] including continuing enjoyment of previous improvements made to the property, sale of timber rights, potential eco-service agreements and carbon rights that might accrue in relation to that vegetation; and that as New South Wales had only been able to enact such legislation because of financial arrangements made under intergovernmental agreements and Commonwealth financial assistance legislation, the Commonwealth was thereby effectively sanctioning or complicit in the acquisition of those rights without paying just compensation.112 The benefit that accrued to the Commonwealth out of this arrangement was the ability to meet Australia’s international legal obligations to reduce greenhouse gas emissions under the Kyoto Protocol.

In rejecting the claim as having no reasonable prospects of success Emmett J did, however, say (at [120]) that ‘it may be arguable that an agreement between the Commonwealth and a State will be invalid if, as a condition of accepting a grant of financial assistance, the State agrees to acquire property otherwise than on just terms’ and later (at [152]) ‘if any of the InterGovernmental Agreements effected or authorised an acquisition of property otherwise than on just terms, and that agreement was only authorised by either of the Commonwealth Statutes,113 it may be arguable that that intergovernmental agreement was invalid or inoperative, to the extent that it effected or authorised such an acquisition’. The court ultimately concluded, however, that since the Commonwealth legislation in question did not authorise expressly, or by necessary intention, the making of any agreements with a state requiring the state to acquire property on unjust terms as a condition of receiving a grant of financial assistance from the Commonwealth, the legislation could not therefore be fairly characterised as a law with respect to the acquisition of property within the Constitution s 51(xxxi). Furthermore (at [171]), ‘there is no apparent connection between the provision of funds by the Commonwealth to New South Wales pursuant to either of the Commonwealth Statutes, on the one hand, and the refusal by officers of New South Wales to grant development consent under the State Statutes for the clearing of native vegetation, on the other hand’.114 An appeal to the Full Court was then dismissed by that court also on the basis that the plaintiff had no reasonable prospects of success.115 This decision was subsequently overruled by the High Court largely on the basis that, although admitting Spencer’s case was not strong, a new case that had been heard in the High Court since the original application had been determined, and that might shed further light on the issue, should be considered.116 [page 161] 5.36 This case was ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51, in which the plaintiff had claimed that New South Wales legislation that had effectively reduced his water entitlement by replacing an existing bore licence with an aquifer access licence, underpinned by an offer for ‘structural adjustment’, partly using moneys provided by the Commonwealth under the National Water Commission Act 2004 (Cth), was an acquisition on less than ‘just terms’. It was conceded in evidence that the structural adjustment payment would not be equivalent to ‘just terms’ compensation. The legislation under which the plaintiff’s entitlement had been reduced was directed by

national water reforms under the National Water Initiative (NWI), which provided for some Commonwealth funding to encourage the uptake of the national reforms. The High Court confirmed (at [46]) that ‘the legislative power of the Commonwealth conferred by s 96 (see 5.22) and s 51(xxxvi) does not extend to the grant of financial assistance to a State on terms and conditions requiring the State to acquire property on other than just terms’ However, in this case, even if it was accepted that the bore licences that were cancelled were a species of property (because the entitlements that were attached to the licences could be traded or used as security117), the replacement of the plaintiff’s bore licences did not constitute an acquisition of property within the meaning of s 51(xxxi). The court confirmed that in order to constitute an ‘acquisition’ either the Commonwealth or another party must obtain an entitlement to possession and control of the plaintiff’s property; or at least that government action must sterilise the plaintiff’s interest while at the same time providing a correlative proprietary benefit either to the Commonwealth or another party. In this case, the only party that could have benefited from the change in water entitlements was the State of New South Wales, but there was no measurable advantage accruing to the state that could have triggered the possible application of s 51(xxxi). The amount of water that the State could permit to be extracted was bounded only by the physical state and capacity of the aquifer, and such policy constraints as the State chose to apply. Neither the existence, nor the replacement or cancellation, of particular licences altered what was under the control of the State or could be made the subject of a licence to extract. If, as was hoped or expected, the amount of water in the aquifer would thereafter increase (or be reduced more slowly) the State would continue to control that resource. But any increase in the water in the ground would give the State no new, larger,

[page 162] or enhanced ‘interest in property, however slight or insubstantial’,118 whether as a result of the cancellation of the plaintiffs’ bore licences or otherwise.119

This finding seems to be consistent with the earlier finding in Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 that cancellation of entitlements under a fisheries management plan did not effect an acquisition because statutory entitlements to fish, even if regarded as property, were inherently susceptible to modification or extinguishment depending on amendments to the plan, and neither the Commonwealth nor any other party obtained any correlative proprietary benefit. The ICM case, of course, was concerned with old-style bore licences conferred under the Water

Act 1912 (NSW), not with the replacement aquifer licences issued under the later Water Management Act 2000 (NSW), the precise classification of which as ‘property’ susceptible to ‘acquisition’ has yet to be commented upon by the court.120 5.37 Interestingly, as Macintosh and Wilkinson121 point out, former Federal Court judge Murray Wilcox had forecast in the early 1990s that as legislative controls on land increased, there would be more pressure on courts to determine whether ‘acquisitions’ had occurred; they also note that various members of the High Court had since made statements ‘that are consistent with the conclusion that federal laws that regulate the use of natural resources, such as the EPBCA, can bring about an acquisition of property … it is arguable that if the EPBCA prevented a farmer from clearing land for grazing, and there was no other commercial use to which the land could reasonably be put, it will affect an acquisition of property’.122 The High Court decision in Spencer left it open to Mr Spencer to pursue his claims in the Federal Court, though the reasoning of the majority adopted in ICM suggested his prospects of success were not great; and [page 163] in the event, Spencer’s claims were ultimately dismissed by the Federal Court; Spencer v Commonwealth of Australia [2015] FCA 754.

Other heads of power 5.38 The defence power contained in the Constitution s 51(vi) could enable the Commonwealth to control the mining and sale of uranium, and address the security implications of environmentally hazardous activities of other nations; although since this is a purposive power, ostensible use of the power should be directed more to military outcomes than environment protection. The Great Barrier Reef Marine Park Act 1975 (Cth) (GBRMPA)123 partly relies on the census and statistics power (s 51(xi)). The Water Act 2007 (Cth) also relies on this power, as well as the weights and measures power (s 51(xv)), ‘matters incidental to the execution of any power vested by the Constitution in the Parliament’ (s 51(xxxix)), and the ‘referral power’ (s 51(xxxvii)), matters referred to the parliament of the Commonwealth by the parliament or parliaments of any state or states.124 The power under s 51(xxx), the relations of the Commonwealth with the islands of the Pacific, justifies for example the South Pacific Nuclear Free

Zone Treaty Act 1986 (Cth) and the Comprehensive Nuclear Test-Ban Treaty Act 1998 (Cth), as well as certain provisions of the Fisheries Management Act 1991 (Cth) that recognise the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America.

State legislative powers in respect of the environment 5.39 The states retain the law-making power they enjoyed at the time of Federation to legislate for ‘peace, order and good government’,125 subject only to the limitations imposed by the Constitution. The most important restrictions on state legislative power are: s 52, which confers exclusive jurisdiction on the Commonwealth to legislate for Commonwealth places and the Commonwealth public service; s 90, which confers exclusive jurisdiction on the Commonwealth in respect of laws relating to customs, duties and excise; s 92, trade within the Commonwealth to be ‘free’; and s 109, which declares the supremacy of Commonwealth law in the event of an inconsistency with state law. In addition, there is also the possibility of an implied nationhood power to legislate in respect of matters peculiar to the Commonwealth in its role as the central sovereign government of the nation. [page 164]

The Constitution s 90 5.40 The states’ ability to pursue environmental goals through taxation measures is significantly restricted by the Constitution s 90, which prohibits the states from raising taxes by way of excise. An excise was described by Mason J in Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 as embracing ‘all taxes on, or in respect of, a step in the production, manufacture, sale or distribution of goods’. In this case, a ‘pipeline operation fee’ imposed on Bass Strait oil producers by the Victorian government was struck down by the High Court because it amounted, in essence, to an illegal excise, despite the fact that the fee was not linked to the quantity of

production — previously thought to be significant in distinguishing an excise from other forms of taxation — but was rather a flat fee of $10 million per annum. Consequently, attempts to promote ‘environmentally friendly’ behaviour through the imposition of charges and fees (such as taxes on the use of non-recyclable or non-biodegradable materials) could be challenged, and any attempt to disguise such taxes as, for example, licence fees are unlikely to survive judicial scrutiny. Significantly, however, a state government-imposed royalty for the right to exploit a public resource (in this case an abalone fishery) was held not to be an excise in Harper v Minister for Sea Fisheries (1989) 63 ALJR 687, even though the amount of royalty was proportionate to the total value of the catch. Brennan J described the purpose of the regulation imposing the royalty thus:126 The public right of fishing in tidal waters is not limited by the need to preserve the capacity of a fishery to sustain itself. The management of a fishery to prevent its depletion by the public must be provided for, if at all, by statute … The Regulations thus control the exploitation of a finite resource in order to preserve its existence. They seek to achieve this end by imposing a general prohibition on exploitation followed by the grant of licences for the taking of limited quantities of abalone. The only compensation, if compensation it be, derived by the public for loss of the right of fishing for abalone consists in the amounts required to be paid by holders to obtain abalone licences under the Regulations.

5.41 The most important reason for distinguishing this royalty from an illegal tax was the discernible relationship between the amount paid and the value of the privilege conferred by the licence, and in discerning that relationship: ‘It is significant that abalone constitute a finite but renewable resource which cannot be subjected to unrestricted commercial exploitation without endangering its continued existence’.127 Without such a relationship, however, such fees run the risk of being regarded as mere taxation measures: ‘What is otherwise a tax is not converted into something else merely because it serves the purpose of conserving a natural public resource’.128 The crucial element, then, in distinguishing a legitimate fee from an illegitimate tax imposed on the exploitation of public resources is clearly the value of the price paid to extract the resource; the royalty is the commercial price paid to acquire the resource. [page 165] Royalties imposed on the production of minerals, for example, clearly exact a fee for access to public resources.129 In Hematite, the pipeline fee was simply a tax imposed on the use of the pipeline; it did not give rights of access to the resource. Using Harper as precedent, it could also be argued that state-

imposed charges on polluting emissions into the air and watercourses and onto land, which reflect ‘value’ by comparison with the alternative costs of pollution prevention, would be a legitimate ‘royalty’ for use of a public resource. States, of course, can also provide financial incentives for environmentally friendly behaviour within the limits of their own revenue raising powers; indeed, provision of economic or market-based incentive schemes for environmentally responsible behaviour is becoming one of the cornerstones of modern approaches to sustainable environmental management.130

The Constitution s 92 5.42 The Constitution s 92 guarantees freedom of interstate trade and commerce. This does not mean, however, that no interstate trade may ever be restricted for environmental reasons. The decision of the High Court in Cole v Whitfield (1988) 78 ALR 42 confirmed that so long as a law is not protectionist and discriminatory, legitimate measures for conservation of natural resources will not offend s 92.131 The case revolved around a consignment of crayfish from South Australia to a marine farm in Tasmania. By virtue of the Sea Fisheries Regulations 1962 (Tas) the crayfish were, by Tasmanian standards, undersized. The question before the High Court was whether the Tasmanian regulations were in breach of the Constitution s 92. The court concluded that they were not. The Regulations applied to all produce indiscriminately, both to local and interstate trade, and to crayfish caught in Tasmanian waters as well as those imported into the state. So, although the regulations were undoubtedly a burden on interstate trade and commerce in crayfish, they did not introduce any discriminatory protectionism favouring Tasmanian produce:132 Furthermore, the object of the prohibitions, in conjunction with the prohibition against catching undersized crayfish, is to assist in the protection and conservation of an important and valuable natural resource, the stock of Tasmanian crayfish. Although the legislation operates in this way to protect the Tasmanian crayfish industry, it is not a form of protection that gives Tasmanian crayfish production or intrastate trade and commerce a competitive or market advantage over imported crayfish or the trade in such crayfish.

[page 166] The purpose of conservation is therefore likely to be regarded as prima facie nondiscriminatory; at least so long as any resultant prohibitions are, as in this case, necessary to achieve the conservation objective. However, where they go further than necessary they may be deemed to be protectionist.

5.43 In Ackroyd v McKechnie (1986) 66 ALR 287,133 the interstate movement of sulphur-crested cockatoos was held to be protected by virtue of s 92 despite the fact that, contrary to the Fauna Conservation Act 1974 (Qld) s 64, no permits had been obtained from either the buyer in Queensland or the vendor in Sydney, as required by that Act. The High Court held that the existence of a discretion to grant a licence or permit by way of exemption from a general prohibition was not enough to save the provision from invalidity under s 92. It was admitted, however, by Gibbs CJ (at 291), that there might be exceptions permitted where reasonable restrictions had to be imposed, say, on grounds of public health, dangerous goods or diseased animals or plants. A prohibition on the movement of cockatoos was not justified, however, on the basis of the preservation of cockatoos. Wild cockatoos were abundant and the number of cockatoos sold commercially was a minuscule fraction of the wild stocks, so that there could be no suggestion that the trade would endanger the species. This presumably leaves it open to argue, in appropriate cases, that restrictions on interstate trade can be applied legitimately on conservation grounds so long as such restrictions go ‘no further than is necessary for legitimate regulatory or conservational purposes’: at 294 per Deane J. 5.44 An attempt to exempt prohibitions on the interstate sale of kangaroo and wallaby skins under the Fauna Protection Act 1948 (NSW) s 19 also failed for similar reasons in the earlier case of Fergusson v Stevenson (1951) 84 CLR 421, the court declining to hold that they should not be regarded as legitimate articles of trade and commerce. In Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436, an amendment to the Beverage Container Act 1975 (SA), which imposed a higher level of compulsory deposit on beer contained in non-refillable bottles than in refillable bottles (15 cents compared to 4 cents) and obliged retailers selling non-refillable bottles to accept empty returns and pay the refund whether or not they sold the original item, as a means of encouraging the use of reusable bottles and the recycling of ‘one trip’ containers, was struck down by the High Court because it concluded that the real aim was to protect state beer producers against a particular producer from interstate (Bond Brewing). 5.45 Even accepting that ‘the legislature had rational and legitimate grounds for apprehending that the sale of beer in non-refillable bottles generates or contributes to the litter problem and decreases the state’s finite energy resources’ the burdens imposed on the non-refillable bottles went beyond what was necessary to adequately address these issues. ‘[L]egislative measures which are appropriate and adapted to the resolution of those

problems would be consistent with s 92 so long as any burden imposed on interstate trade was incidental and not disproportionate to their [page 167] achievement’.134 It is, therefore, obviously important for states wishing and willing to encourage more environmentally friendly products and processes to avoid any hint of protectionism or discrimination in the drawing and implementation of legislation purporting to regulate aspects of production. Alternatively, if a law is clearly discriminatory, it may still not breach s 92 if it can be shown to be appropriate and adapted to the pursuit or advancement of a legitimate and competing public interest concern.135 The recognition, hinted at in Ackroyd v McKechnie, that it would be foolhardy to guarantee free trade to goods or articles that may pose risks to human health or the environment, is reflected in the provisions of the quarantine and biosecurity regulations (see 4.40–42). The Biosecurity Act 2015 (Cth) deals with managing biosecurity risks from pests136 and diseases that may be in goods, vehicles or on premises. Although a power or function conferred by the Act must not be exercised or performed in such a way as to contravene s 92 of the Constitution,137 Nevertheless the Act confers extensive powers on biosecurity officers to assess the level of biosecurity risk associated with goods, and to monitor, respond to and control those risks.138 The Act also provides a mechanism for prohibiting certain goods from being brought or imported into Australian territory, either absolutely or subject to conditions, and includes provisions dealing with biosecurity import risk analyses and import permits.139

Commonwealth places 5.46 Under the Constitution s 52, the Commonwealth has exclusive power to legislate in respect of Commonwealth places; for example, Commonwealth reserved [page 168] areas, airports and defence establishments. In other words, the only laws that may be validly enacted in respect of a Commonwealth place are federal laws.140 State environmental and planning laws, therefore, do not apply to Commonwealth places unless Commonwealth legislation expressly provides for such application,141 or unless the Commonwealth voluntarily acquiesces to state laws. This also means that state laws will not necessarily automatically

apply following disposal of Commonwealth property: some further action at state level, such as rezoning under state planning legislation, may be required to apply state laws to these places.142 Subsequent purchasers or lessees or licensees of Commonwealth places may also enjoy the same privileges and immunities as the Commonwealth from application of state laws, until land is unequivocally brought under state control;143 for example, lessees on federal airport land.144 5.47 In Queensland Heritage Council v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (2000) 110 LGERA 193, for example, the Queensland Court of Appeal determined that the Australian and Overseas Telecommunications Corporation Act 1991 (Cth) s 33 operated so as to deny the application of the Queensland Heritage Act 1992 to a church building; and consequently the proposed demolition of that building without approval under that Act could not be prevented by the plaintiff. Although an opportunity to effectively list the building under the Act, and thus to control its demolition, would have arisen when ownership of the property passed from the Australian and Overseas Telecommunications Corporation to the respondents, this in fact had not been done. The heritage legislation did not automatically resume its application to the building once it ceased to be a Commonwealth place. This principle, of course, does not affect the ability of the Commonwealth itself to control the future use and development of Commonwealth places through the terms (for example, covenants) on which a property is sold or otherwise transferred. [page 169] 5.48 The Commonwealth Places (Application of Laws) Act 1970 (Cth), which makes provision for the application of some state laws to Commonwealth places,145 is not generally regarded as including environment protection and planning laws.146 Since under s 52 a Commonwealth place includes one acquired by the Commonwealth for public purposes, then a law that attempts to restrict or control Commonwealth activities in relation to carrying out public purposes is not likely to be ‘applied’. Distinguish this from a law that merely regulates conduct on that place but does not otherwise restrict the use of the place. The Application of Laws Act was intended to overcome the effect of two High Court decisions147 that suggested that state criminal laws and New South Wales building regulations could not be applied to such places. None of these matters restrict the use of the place as opposed to conduct on it. The Application of Laws Act s 4(3) distinguishes laws having

a connection with that place. In other words, state laws that attempt to restrict or control Commonwealth activities in relation to the use of that place for public purposes, for example by planning or environmental restrictions, are ousted by s 4(3). Application of criminal laws and health and building standards are not necessarily restrictive of the place as opposed to conduct on it. While planning restrictions, or those imposed by contaminated lands legislation, may undoubtedly seek to restrict the use of a place for public purposes, mere qualitative standards, such as pollution controls, may be argued not to. The effect of this Commonwealth immunity, however, means that the environmental effects of Commonwealth activity in Commonwealth places cannot be legally controlled by state environment protection and planning legislation unless the Commonwealth subjects itself to such control.148

The Constitution s 109 5.49 The Commonwealth can avoid the application of state laws by operation of the Constitution s 109, which provides that to the extent of any inconsistencies between federal and state legislation, Commonwealth law will prevail.149 A good example of the operation of this rule is to be seen through the conflict in Tasmania over the proposed Gordon-below-Franklin power scheme. The Tasmanian parliament authorised work to begin on this project by enacting the Gordon River Hydro-electric Power Development Act 1982 (Tas). The site chosen for the dam, however, lay in an area of national and world heritage significance. To stop the scheme going ahead, [page 170] the federal Labor government enacted the World Heritage Properties Conservation Act 1983 (Cth) and passed regulations pursuant to the Act, effectively prohibiting any construction work in the area from proceeding without the consent of the appropriate federal minister. The High Court of Australia ultimately upheld the validity of the Commonwealth Act in Commonwealth v Tasmania (1983) 46 ALR 625: the Constitution s 109 therefore operated, and the Tasmanian Act ceased to have any effect. 5.50 Commonwealth law will often affect discrete areas of an activity rather than attempt to take over the whole, leaving areas where both Commonwealth

and state law will apply in harmony. In such a case, therefore, authority to carry out an activity granted under Commonwealth law cannot simply ignore the application of state law to that activity.150 Indeed, Commonwealth legislation may itself make this clear. For example, the EPBCA s 10 expressly declares that the Act is not intended to exclude or limit the concurrent operation of any law of a state or territory except so far as a contrary intention appears. 5.51 Sometimes, however, the clear intent of Commonwealth law is to ‘cover the field’, and constitute a comprehensive code for regulation of an activity, leaving no room for the application of state laws. Australian Defence Industries Ltd (ADI), for example, is exempted from state laws that relate to the environmental consequences of the use of land or premises.151 Similar exemptions have been given to the Australian Nuclear Science and Technology Organisation (ANSTO).152 In Botany Municipal Council v Federal Airports Corporation (1992) 109 ALR 321, it was held that the EA provisions of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) did not apply to the Federal Airports Corporation, which was authorised by Commonwealth legislation and regulations to construct a third runway at Sydney Airport. The Federal Airports Regulations 1992 (Cth) expressly authorised works associated with construction of the runway ‘in spite of’ any state laws relating to EA.153 The provisions of the later Airports Act 1996 (Cth) and associated Airports (Environment Protection) Regulations 1997 (Cth) also clearly attempt to establish a comprehensive regime for managing development on airport land and thus leave no room for the application of New South Wales environmental planning and Aboriginal heritage protection laws, despite the absence of equivalent controls in the federal legislation.154 [page 171] 5.52 Commonwealth legislation may also effectively exempt private or statutory corporations from the effect of state laws. For example, the Telecommunications Act 1997 (Cth) Sch 3 exempts many activities from state planning, EA and heritage laws,155 including EA requirements,156 and sets up its own regime for assessing and meeting environmental impacts by way of a ministerial Code.157 Interestingly, in some circumstances, overhead lines may be required to be removed, and there must be a review of options for placing facilities underground as part of a coordinated program of placing other structures underground.158 Carriers are also instructed to give notice to landowners before clearing vegetation159 or conducting activities on ‘sensitive’

land;160 to take all reasonable steps to protect the environment and public roads161 and to restore land;162 and to make ‘reasonable efforts’ to enter into agreements with public utilities with respect to the manner of engaging in activities.163 Effectively, therefore, any of these licensed carriers may access land for laying telecommunications cables or erecting structures, often immune from the application of state planning and environmental protection laws. Although state laws have ostensibly been replaced by a Code and by explicit statutory instructions in the 1997 Act, the Environment and Natural Resources Committee of the Victorian parliament previously identified numerous problems with the Code approach under previous legislation and the degree of compliance by carriers.164 Excessive removal of vegetation has been identified as a common problem.165

The implied nationhood power 5.53 In relation to Commonwealth activities outside a Commonwealth place, which therefore are not bound by the Constitution s 52, and assuming that s 109 also does not apply, then the Commonwealth is subject to state laws of general application.166 The High Court has developed a doctrine of implied immunity of the Commonwealth from state laws.167 Arguably, however, this has more to do with enabling the Commonwealth to perform its functions as a national government rather [page 172] than allowing the Commonwealth to ride roughshod over state laws.168 There is still much uncertainty over the legitimacy and breadth of this immunity; nevertheless, the revisitation of this doctrine by the High Court in Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority (1997) 71 ALJR 1254, and the rejection in that case of any doctrine of general immunity of the Commonwealth from state law (by contrast to the specific constitutional immunities enumerated above), at least in respect of executive functions the Commonwealth chooses to enter into (in this case, residential tenancy agreements), may suggest that outside the protection offered by the Constitution, Commonwealth immunities from state law are not as broad as once thought. For example, the Residential Tenancies case did prompt the Australian Government Solicitor to remark that state laws imposing pollution controls on activities are probably capable of binding the Commonwealth,169

an area that many state governments had previously believed to be beyond them.

The COAG agreement 5.54 Not surprisingly, the immunity of the Commonwealth from state environmental laws has been a major source of conflict between the Commonwealth and states. In November 1997, the Council of Australian Governments (COAG) drew up a draft agreement that, besides defining the extent of Commonwealth responsibilities and interests in the environment, contained provisions for the recognition by the Commonwealth of the importance of complying with state environmental laws. The agreement contains a commitment by the Commonwealth to subject itself to state environmental laws. However, this commitment will apply only to those Commonwealth departments, agencies and statutory authorities that are required by the Commonwealth to comply, or elect to comply, with state environmental and planning laws.170 All non-Commonwealth tenants and persons undertaking activities on Commonwealth land, and all Commonwealth Government Business Enterprises (GBEs), non-GBE companies, statutory authorities whose primary functions are commercial, and business units, will be subject to state laws.171 Certain matters will also be exempt from compliance on grounds of national interest; these include aircraft noise and emissions.172 Where a Commonwealth department, agency or statutory authority is not bound to comply with state environment and planning laws, then [page 173] the Commonwealth will ensure that at least they will operate and secure approvals in accordance with Commonwealth measures that are at least equivalent to the environment and planning laws of the state in which the Commonwealth activity or property is located, and that the Commonwealth will endeavour to adopt standards of ‘best practice’ in managing its environmental responsibilities.173 It was recognised that implementation of this agreement might require further legislative action; the parties agreed to ‘seek to legislate’ within two years of the signing of the agreement.174 This, of course, did not happen, and there have since been no further developments in respect of this commitment. Commonwealth compliance with state law may still depend therefore on Commonwealth agreement; and a number of states are currently in dispute

with the Commonwealth over compliance issues, most notably in relation to contaminated sites, an issue about which there is no specific Commonwealth law to apply to Commonwealth places.

Cooperative federalism 5.55 The recognition flowing from decisions of the High Court in the 1980s that Commonwealth powers in respect of the environment may well be more extensive than previously realised has led the federal government to suggest, and the states to acknowledge, that a cooperative approach to environmental issues might be more politically expedient. On the one hand, the Commonwealth wants (indeed, has international obligations) to pursue urgent national strategies for environmental protection and NRM, but would rather not come into direct conflict with the states; while, on the other hand, states that have traditionally had control over land use and environmental matters realise that if they do not respond to the Commonwealth’s concerns they risk being bypassed by expanding federal power if conflict ensues. It is in the interests of both state and federal governments, therefore, to try to work out cooperative solutions to environmental problems wherever possible.175 The traditional ‘states’ rights’ opposition to Commonwealth ‘interference’ in land use and environmental issues in the states has given way to the realisation that significant environmental issues really need to be dealt with on a national basis. For example, the then Premier of New South Wales, Mr Greiner, said in April 1990 that in many areas:176 … the states must defer to the Federal Government on strategies which contribute to the minimisation of global and national environmental problems. I firmly believe that we must reconsider our narrow obsession with ‘State rights’ … on many of the issues which face us on the environment, such an approach is both inappropriate and out of step with the nature of the task.

[page 174] The Premier was, however, careful also to point out that the Commonwealth had to assume corresponding financial responsibility. This was later to be an issue on which Queensland and the Commonwealth fought bitterly over the introduction of native vegetation clearance controls — Queensland demanding that the Commonwealth compensate landowners who were to be denied clearing ‘rights’, the Commonwealth equally as adamant that it was Queensland’s responsibility. The coming into force of this much-needed legislation, the Vegetation Management Act 1999 (Qld),177 was consequently delayed while the two governments squabbled. Nevertheless,

Commonwealth funding initiatives have indeed driven the implementation of many national environmental policies.178 5.56 From the Commonwealth’s point of view, the resolution of controversial resource issues by the High Court was neither appropriate nor politically acceptable. Litigation was time-consuming and expensive and, in any case, even if the Commonwealth was able to successfully assert its undoubtedly superior constitutional powers over state resources, those resources still had to be managed. In this respect, the states held the upper hand, since the Commonwealth had neither the institutional structure nor the desire to become an environmental manager of state natural resources. The election of the Howard government in 1996 foreshadowed a different approach to environmental protection by the Commonwealth than that pursued in the 1980s.

National policies and strategies 5.57 The impact of the different approach adopted in the 1990s and continued throughout the new millennium (cooperative federalism)179 is most noticeably marked not only by an absence of constitutional legal challenges but also by the cooperative development of national strategies and policies on a wide variety of matters of national environmental concern. The Commonwealth role under cooperative federalism is, first, to encourage and coordinate national approaches to environmental issues, relying on the fact that if the states and territories help to produce such strategies, they are likely to regard themselves as having greater ownership of them and are therefore more likely to implement them; and, second, to provide the ‘funding carrot’, promising to financially assist the states with implementation of agreed strategies. Consequently, a great deal of effort has gone into the production of national policies and strategies, with varying degrees of success. Some of the more important initiatives include: the National Forest Policy Statement;180 the Australian Weeds Strategy;181 the National Strategy for Ecologically [page 175] Sustainable Development;182 Australia’s Biodiversity Conservation Strategy;183 the National Action Plan for Salinity and Water Quality (now replaced by the National Landcare Program);184 the National Strategy for the Management of Coastal Acid Sulfate Soils;185 the National Programme of Action for the Protection of the Marine Environment from Land-based

Activities;186 Australia’s Native Vegetation Framework;187 the National Strategy and Action Plan for the role of Australia’s Botanic Gardens in Adapting to Climate Change;188 the Renewable Energy Target Scheme;189 the Strategy for Australia’s NRS 2009–2030;190 the National Waste Policy;191 the National Strategy on Energy Efficiency;192 and the National Climate Resilience and Adaptation Strategy.193 5.58 The development of national strategies suffers, of course, from the expected criticisms that: they are slow to be developed; they are too much affected by political considerations; they represent a lowest common denominator approach to NRM; and they are strong on motherhood statements of concern but come up short on positive action. On the other hand, the advantages are seen to be that: national, uniform approaches to national problems can be agreed on; there is nothing to prevent any party introducing policies or legislation that seek to go further than the agreed strategy; all policy and legal initiatives are in any case subject to political influences at any level of government; they form a strategic policy framework within which each party can take positive action that fully recognises the political, economic and social circumstances of that party; and they provide funding mechanisms for implementation. 5.59 The implementation of national strategies and policies is generally encouraged by the possibility of attracting Commonwealth funding; for example, through the [page 176] auspices of the Caring for Our Country initiative, now replaced by the National Landcare Programme.194 Prior to this, funding was provided from the Natural Heritage Trust Reserve. The Commonwealth Auditor-General indicated in a report in 1996–97 that the Commonwealth was unable to indicate in any detail the outcomes that had been achieved from NRM and environmental funding programs such as Landcare, Save the Bush, One Billion Trees and other programs.195 This suggested a general absence of

targeted outcomes and requirements for monitoring the effectiveness of such policies and projects, and a lack of performance standards on which an evaluation of effectiveness might be based. Following this strong criticism, the Commonwealth eventually launched an updated version of the Natural Heritage Trust (NHT2), which adopted a more integrated regional and local approach to spending initiatives with built-in targets and monitoring and evaluation criteria. A subsequent audit of NHT2 and the National Action Plan on Salinity and Water Quality (the NAP)196 showed that, although there had been clear improvement by adopting a regional approach for delivery, the quality and measurability of targets in regional plans was still a matter of concern; and that a lack of validated data and failure to agree on performance indicators still made it difficult to assess whether levels of financial input into, and output from, funded projects were achieving their stated objectives. The Caring for Our Country initiative, and now the National Landcare Programme, clearly articulate that the Australian Government is committed to demonstrating and accounting for intermediate and long-term outcomes and improvements from its natural resource management (NRM) investments. Monitoring and reporting on progress and improvement is an essential element of effective programme management. Funding for environmental initiatives may also be delivered through National Partnership Agreements, which are designed to reward states for the delivery of specified reform outputs or projects; for example, in relation to water and energy efficiency.197

Ministerial councils 5.60 Consultative processes between the Commonwealth and the states are formalised through ministerial councils, standing committees of senior officials, and specialist and ad hoc committees of various kinds. The then prime minister’s statement on the environment in July 1989 emphasised the role of ministerial councils in the development, for example, of national minimum environmental standards for air, water and noise quality, and that ‘commonly agreed environmental processes and [page 177] guidelines, where possible, will better achieve the objectives of the Commonwealth, states, industry, workers and the community’.198

5.61 COAG is the forum where the prime minister and state and territory premiers meet to discuss national issues and determine national policies.199 These can extend to environmental issues, particularly now that climate change and water are occupying so much political attention at a national level.200 The Inter-governmental Agreement on Murray–Darling Basin Reform (2008),201 for example, came out of this process, as well as current initiatives on energy efficiency and renewable energy targets (RETs).202 One current theme is a sustainable Australia, which aims to ensure sufficient resources are available for Australia’s population into the future and encompasses national water reforms and improved energy efficiency of buildings.203 5.62 Ministerial councils are generally comprised of state and federal ministers, supported by standing committees of officials nominated by the respective ministers that act in an advisory role to the councils, and that are themselves supported by a number of specialist subcommittees that provide information and advice on a wide variety of topics relevant to the work of the councils. As a cooperative and information-sharing arrangement, these ministerial councils have great potential to formulate and secure the adoption of longterm and wide-ranging national environment policies and their ability to do so is constrained only by political factors. One of the primary constraints is the COAG requirement for Best Practice Regulation, which requires that proposals emanating from ministerial councils run the gauntlet of the Office of Best Practice Regulation (OBPR)204 and that regulatory proposals be supported by cost–benefit analysis contained within a regulatory impact statement. Without this, the approval of COAG for ministerial council regulatory proposals is very difficult to secure. For example, proposals for the introduction of an EPR scheme (product stewardship) for e-waste were held up for a considerable period of time by this mechanism.205 5.63 The ministerial councils most relevant to environmental management were the Standing Council on Environment and Water (SCEW), which incorporated the National Environment Protection Council (NEPC),206 and the Standing Council on [page 178] Primary Industries (SCoPI). SCEW subsumed the former Environment Protection and Heritage Council (EPHC), and SCoPI subsumed the former Natural Resource Management Ministerial Council (NRMMC) and the Primary Industries Ministerial Council (PIMC). In 2013 the 22 existing

councils were abolished, including SCEW and SCoPI, and replaced by eight new councils, none of which specifically cover environment and natural resources.207 It must be assumed therefore that environment will henceforth be a primary focus of COAG itself rather than a ministerial council. Outside the formal COAG process, ministerial forums may be established for specific purposes, such as the cooperative management of the Great Barrier Reef,208 the development of NEPMs,209 and the Murray–Darling Basin210 Environment ministers have also agreed to meet on an ad hoc basis to progress national measures for environmental reform.211 Non-ministerial authorities are another important aspect of cooperative federalism. These generally take the form of national consultative committees comprised of officials and technical experts in specific subject areas for research purposes, for the provision of information and advice to governments, and for determining environmental and health protection standards for the use of products and equipment within Australia.212 The National Health and Medical Research Council (NHMRC)213 is a longestablished organisation of this type that, among other things, has been responsible for the development of recommended air pollution standards and assessment of pesticides. Another such organisation, which was first formed in 1917, is the Murray–Darling Basin Authority (MDBA),214 which regulates the cooperative use of the waters of the Murray River between the five interested riparian states and the Commonwealth. The Australian Pesticides and Veterinary Medicines Authority is responsible for regulating permission to use agricultural chemicals,215 while the National Industrial Chemicals Notification and Assessment Scheme performs a similar role with respect to the approval of industrial chemicals for use within Australia.216 There is also an Australian Radiation Protection and Nuclear Safety Agency,217 and a Threatened Species Scientific Committee that advises the minister on listings under the EPBCA.218 The Australian Heritage Council (AHC), established under the Australian Heritage Council Act 2003 (Cth), advises the minister on conserving and protecting places included, [page 179] or being considered for inclusion, in the National Heritage List or Commonwealth Heritage List, kept under the EPBCA. The Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC)219 advises government on the impact that coal seam gas and large coal mining development may have on Australia’s water resources, while the Product Stewardship Advisory Group220 advises the Environment

Minister about the development of a list of products proposed to be considered for some form of accreditation or regulation under the Product Stewardship Act 2011.

The Inter-Governmental Agreement on the Environment 5.64 A special Premiers’ Conference held in October 1990 endorsed a cooperative approach to environmental issues, in order to give greater certainty to government and business decision-making while at the same time pursuing better environmental protection. The statement issuing from the conference identified a national approach to environmental impact assessment (EIA), air and water quality standards, and control of genetically engineered organisms, as well as the development of improved processes for the assessment of forest resources as being of particular importance, although biodiversity and climate change were also flagged.221 This process resulted in the formation of an Inter-Governmental Agreement on the Environment (IGAE) in 1992 by which the Commonwealth, states, territories and local government agreed to integrate environmental considerations into government decision-making at all levels and pursue the principles of ESD.222 The parties also recognised that ‘strong, growing and diversified economies (committed to the principles of ESD) can enhance the capacity for environmental protection’.223 To achieve these objectives the parties committed themselves to: ensuring that environmental issues associated with a proposed project, program or policy would be taken into consideration in the decisionmaking process; ensuring that there would be a proper examination of matters which significantly affect the environment; and ensuring that measures adopted should be cost-effective and not be disproportionate to the significance of the environmental problems being addressed.224 5.65 Although the IGAE recognised that the states have primary responsibility for environmental management within their jurisdiction, it also recognised the legitimate [page 180]

role of the Commonwealth in respect of national environmental issues.225 Before committing itself to any international agreements, however, the Commonwealth undertook to consult with the states. Where the Commonwealth and the states both had an interest in a matter of environmental concern, then each party could approve or accredit the practices, procedures and processes of the other. To avoid duplication of effort and unnecessary expense and political friction, the parties would then give ‘full faith and credit’ to the results or outcomes of such practices, procedures and processes as a basis for decision-making when exercising their own responsibilities. This did not mean that one party must be bound by the decisions taken by the other, merely that the parties would respect the validity of each other’s information gathering and other evaluation processes. Each party could quite legitimately come to different conclusions using the same processes. By agreement, the parties could make provision for how unforeseen circumstances or flawed executions are taken into account; and this process would not preclude other factors from being taken into account in addition to those given full faith and credit. It is clear that the IGAE was not intended to constitute a binding legal document so much as a statement of intent or aspiration — a ‘political compact’. These aspirations were, however, reflected in two pieces of Commonwealth legislation: the National Environment Protection Council Act 1994226 and the EPBCA. The EPBCA is considered in detail in Chapter 6.

1.

Commonwealth of Australia Constitution Act s 51.

2.

These are Ashmore and Cartier Islands, Christmas Island, Cocos (Keeling) Islands, Coral Sea Islands, Heard and McDonald Islands, Lord Howe Island, Macquarie Island, and Norfolk Island. Australia also claims the Australian Antarctic Territory, but this is not formally recognised in international law; on ‘sovereignty’, see further 4.25.

3.

See generally Cristoff, ‘Degreening Government in the Garden State: Environment Policy Under the Kennett Government’ (1998) 15 EPLJ 10.

4.

Crawford, ‘The Constitution’, in Bonyhady (ed), Environmental Protection and Legal Change, Federation Press, Sydney, 1992.

5.

The proposal was ultimately rejected by the Constitutional Commission, AGPS, 1988, despite widespread support from environmental groups and the National Environmental Law Association.

6.

See Pillai and Williams, ‘Commonwealth Power and Environmental Management: Constitutional Questions Revisited’ (2015) 32 EPLJ 395, 405.

7.

Webster and Williams, ‘Can the High Court save the Murray River?’ (2012) 29 EPLJ 281 at 290 suggest that this provision should be viewed more as a limitation on Commonwealth power than a wider guarantee of states’ rights to water. Such an interpretation may also restrict the role of the High Court in adjudicating interstate river disputes: see Preston-Samson, ‘Navigating Muddy

Waters: Does the High Court Have a Role in Adjudicating Interstate River Disputes?’ (2012) 29 EPLJ 373. More broadly, see also Kildea and Williams, ‘The Constitution and the Management of Water in Australia’s Rivers’ (2010) 32(4) Sydney Law Review 595. 8.

Northern Territory (Self-Government) Regulations 1978 reg 14, promulgated under the authority of the Northern Territory (Self-Government) Act 1978 s 35; Australian Capital Territory (SelfGovernment) Act 1988 s 22 and Sch 4; Norfolk Island Act 1979.

9.

See Crawford, ‘The Constitution and the Environment’ (1991) 13 Syd LR 11 at 16.

10. See generally Crommelin, ‘Commonwealth Involvement in Environment Policy: Past, Present and Future’ (1987) 4 EPLJ 101. 11. See Chapter 14. 12. See Chapter 11. 13. See Pillai and Williams, ‘Commonwealth Power and Environmental Management: Constitutional Questions Revisited’ (2015) 32 EPLJ 395. 14. See further 5.49. 15. See 5.11. 16. Customs (Prohibited Exports) Regulations 1958 (Cth). 17. Customs Act 1901 (Cth). 18. See generally Crawford, note 9 above; Lindell, ‘Scope of the Commonwealth’s Environmental Powers and Responsibilities’ in Leadbeter et al (eds), Environmental Outlook No 3: Law and Policy, Federation Press, Sydney, 1999, p 107. 19. Biosecurity Act 2015 (Cth) s 24. 20. See Lindell, ‘Scope of the Commonwealth’s Environmental Powers and Responsibilities’ in Leadbeter, Gunningham and Boer (eds), Environmental Outlook No 3: Law and Policy, Federation Press, Sydney, 1999, p 123. 21. See Crawford, note 9 above, at 27. 22. Water Act 2007 (Cth) ss 9 and 9A. And see Rothwell, ‘International Law and the Murray–Darling Basin Plan’ (2012) 29 EPLJ 268. 23. See 5.55. 24. For example, Water Efficiency Labelling and Standards Act 2005 (Cth) s 8. Other examples of ‘cooperative’ approaches to the passage of Commonwealth legislation would be the Regional Forest Agreements Act 2002 (Cth), and provisions of the Water Act 2007 (Cth) that relate to the Murray– Darling Basin Agreement. 25. For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 10; Water Efficiency and Labelling Standards Act 2005 (Cth) s 11. 26. For example, National Greenhouse and Energy Reporting Act 2007 (Cth) (NGERA) s 5. 27. See, for example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) Pt 13A; Hazardous Wastes (Regulation of Exports and Imports) Act 1989 (Cth). 28. Direct control would raise the possibility of using the Constitution s 109 to override any inconsistent state laws. The Commonwealth can always use indirect controls to limit exports, as shown, for example, by Murphyores. 29. Lindell, see note 20 above, p 112. 30. See Chapter 16. The Product Stewardship Act 2011 (Cth) cites meeting ‘international obligations’ and ‘reducing greenhouse gases’ as objects of the Act, without further elucidation: see s 4(3).

31. The Commonwealth is less likely to pursue protectionist policies that favour particular states. 32. See 5.42. 33. Intergovernmental Agreement on the Environment 1992 art 2.5.2. 34. That is, the substantive provisions of a treaty are not binding within Australia. Ratification may, however, create ‘legitimate expectations’ that decision-making will comply with the treaty; and in this case may lead to a procedural right to be informed should the decision-maker determine not to make the decision in compliance with the treaty. The implications of this approach are considered further in Blay and Piotrowicz, ‘The Teoh Case: Implications for Environmental Law in Australia’ (1996) 13 EPLJ 40; Pearson, ‘Incorporating ESD Principles in Land Use Decision-making: Some Issues after Teoh’ (1996) 13 EPLJ 47. For indirect influences of international policies and laws on Australian law, see 4.41. 35. See generally Fisher, ‘The Impact of International Law Upon the Australian Environmental Legal System’ (1999) 16 EPLJ 372. 36. For commentary, see Goldring, ‘Dams or Floodgates’ (1983) 8 LSB 156; Wilcox, ‘The Dam Case — Implications for the Future’ (1983) 11 Habitat 32; Sornarajah (ed), The South-West Dam Dispute: The Legal and Political Issues, University of Tasmania, Hobart, 1983; Lane, ‘The Federal Parliament’s External Affairs Power: The Tasmanian Dam Case’ (1983) 57 ALJ 554; Bates, ‘The Tasmanian Dam Case and its Significance in Environmental Law’ (1984) 2 EPLJ 325. 37. For commentary on whether the Commonwealth would be able to rely on the external affairs power to meet Australia’s commitments under the Rio Declaration on sustainable development, see Marlin, ‘The External Affairs Power and Environmental Protection in Australia’ (1996) 24 FLRev 71. 38. For a perceptive political commentary of the Tasmanian Dam case and subsequent disputes over world heritage issues, see Davis, ‘Federal–State Tensions in Australian Environmental Management: The World Heritage Issue’ (1989) 6 EPLJ 66; Tighe, ‘Environmental Values, Legalism and Judicial Rationality: The Tasmanian Dam Case and its Broader Political Significance’ (1987) 4 EPLJ 134. For an accounting perspective, see Burritt and Gibson, ‘Who Controls World Heritage Listed Assets?’ (1993) 10 EPLJ 278; and also Suter, ‘Shark Bay, Western Australia: A Case Study of a UNESCO World Heritage Listing’ (1994) 112 EPLJ 31. 39. See Lindell, note 20 above, p 119. 40. Evans, ‘The Federal Government and Environmental Law’ (1984) 2 EPLJ 325; Crawford, note 9 above, at 23 agrees. Where the obligations of a treaty ratified by Australia have not been translated into domestic law, then no private citizen can enforce any breach of purely international obligations: see Tasmanian Wilderness Society Inc v Fraser (1982) 153 CLR 270. 41. Crawford, ‘The Constitution and the Environment’, unpublished paper delivered to a workshop on ‘Our Common Future’, Faculty of Law, University of Tasmania, July 1990, p 17. 42. See Pillai and Williams, ‘Commonwealth Power and Environmental Management: Constitutional Questions Revisited’ (2015) 32 EPLJ 395, 397. By contrast, of course, the Kyoto Protocol does impose legally binding obligations. 43. See generally Tsamenyi and Bedding, ‘The World Heritage Convention in the High Court: A Commentary on the Tasmanian Forests Case’ (1988) 5 EPLJ 232; Tsamenyi, Bedding and Wall, ‘Determining the World Heritage Values of the Lemonthyme and Southern Forests: Lessons from the Helsham Inquiry’ (1989) 6 EPLJ 79. 44. Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (the Helsham Inquiry). 45. Certain provisions of the Act are expressed to be consistent with the WTO Sanitary and Photosanitary Agreement (s 5); and the Act does not apply to the extent that its application would be inconsistent with the exercise of rights of foreign aircraft or vessels, in accordance with UNCLOS (s 30).

46. Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 46 ALR 625; State of Victoria v Commonwealth of Australia (1996) 187 CLR 416. This power of implementation is not confined to obligations set out in the Treaty but may extend to carrying out recommendations adopted by the Treaty parties so long as those recommendations are an appropriate way of carrying out obligations under the Convention: see State of Victoria v Commonwealth of Australia (1996) 187 CLR 416 at 509. 47. Commonwealth v Tasmania, note 46 above. 48. See Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 14. 49. Richardson v Forestry Commission [1988] HCA 10. 50. See Mason J at 147; Murphy J at 179; and Deane J at 269. This conclusion is also supported by Crawford, note 9 above, at 25. 51. Wilcox, ‘The Dam Case — Implications for the Future’ (1983) 11 Habitat 32 at 33. 52. ‘The Powers of the States and the Commonwealth to Protect Heritage’, unpublished paper delivered to the National Environmental Law Association Conference, Hobart, 1985, p 18. 53. Crawford, note 9 above, at 25. 54. Indeed governments have been busy corporatising government enterprises; for example, with respect to water services. ‘Trading’ also does not denote necessarily making a profit; not-for-profit corporations can still be trading corporations. Whether this power would extend to regulating the activities of local government corporations, however, is still an open question, although Queensland has in fact legislated to remove the corporate status of most local governments; see Pillai and Williams, ‘Commonwealth Power and Environmental Management: Constitutional Questions Revisited’ (2015) 32 EPLJ 395, 401-403. 55. These issues are dealt with in greater detail in Chapter 18. 56. A grant under s 96 is valid even if the funds are to be used by a state to acquire property other than on just terms: Arnold v Minister Administering Water Management Act 2000 [2008] NSWCA 338. See, however, Spencer v Commonwealth [2008] FCA 1256, discussed at 5.35, in relation to the argument that if such funds are provided as a result of an intergovernmental agreement or under legislation in circumstances that return a benefit to the Commonwealth, that just terms compensation may be payable. 57. The Tasmanian Native Forestry Agreement Act 1979 (Cth), which provides financial assistance to Tasmania to establish eucalypt plantations, for example, refers also to re(af)forestation and rehabilitation. 58. These arrangements were considered in ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51 and Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3. 59. Now repealed by the Arts, Environment and Territories Legislation Amendment Act 1992 (Cth). 60. Superseded now by the Murray–Darling Basin Agreement and the Living Murray Initiative (defined in the Water Act 2007 (Cth) s 18H as the Intergovernmental Agreement on Addressing Water Over-allocation and Achieving Environmental Objectives in the Murray–Darling Basin). 61. See further 5.27. For a useful survey of the history of implementation of the National Heritage Trust, see Spencer v Commonwealth [2008] FCA 1256. 62. These terms are defined in ss 15–17. 63. Pillai and Williams, ‘Commonwealth Power and Environmental Management: Constitutional Questions Revisited’ (2015) 32 EPLJ 395, 404. 64. See Bubna-Litic and Leeuw, ‘Can Our Taxation System Support “New” Sustainable Industries: The Argument for Ecotaxes’ (1999) 16 EPLJ 140.

65. See further 8.15 and following. 66. Income Tax Assessment Act 1997 (Cth) Subdiv 30-DB. See also Div 31 (conservation covenants). 67. Income Tax Assessment Act 1997 (Cth) s 30.55. 68. Income Tax Assessment Act 1997 (Cth) Subdiv 30-E. 69. Product Stewardship (Oil) Act 2000 (Cth); Excise Tariff Amendment (Product Stewardship for Waste Oil) Act 2000 (Cth); Customs Tariff Amendment (Product Stewardship for Waste Oil) Act 2000 (Cth); Customs Tariff Amendment Act (No 2) 2002 (Cth). The Product Grants and Benefits Administration Regulations 2000 (Cth) set out specific criteria that must be met by a recycler wishing to claim benefits. 70. For example, Protection of the Environment Operations (Waste) Regulation 2005 (NSW) Pt 2; Environment Protection Act 1970 (Vic) Pt 9 Div 3. 71. The Energy Grants and Other Legislation Amendment (Ethanol and Biodiesel) Act 2015 (Cth) abolishes this exemption; while the Excise Tariff Amendment (Ethanol and Biodiesel) Act 2015 (Cth) reduces the rates of excise duty for domestically manufactured fuel ethanol and biodiesel to nil for one year from 1 July 2015, followed by incremental increases in duty for domestically manufactured fuel ethanol and biodiesel annually until 2020. 72. See Simmons, ‘Why Nothing in this World Is Certain Except Death and (Environmental) Taxes’ (2011) 28 EPLJ 368. 73. Income Tax Assessment Act 1997 (Cth) ss 40.755 and 40.760. 74. Income Tax Assessment Act 1997 (Cth) s 43.20(5). 75. Income Tax Assessment Act 1997 (Cth) Pt 3-50. 76. Income Tax Ruling IT 2685. 77. See ‘Trust for Nature Shining a Light on Law and Markets in Private Land Conservation: Insights and Issues from Victorian Landowners’ (2014). Available at . 78. See Black, ‘Fringe Benefits Tax and the Company Car: Aligning the Tax with Environmental Policy’ (2008) 25 EPLJ 182. 79. Henry et al, ‘Australia’s Future Tax System — Report to the Treasurer’, Canberra, 2009. 80. See recommendations 58–60. 81. Constitution s 81; Davis v Commonwealth (1988) 63 ALJR 35. For an example in relation to Commonwealth and national heritage, see Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 324ZB and 341ZG. 82. See Crawford, note 9 above, at 17. 83. See 5.23. 84. Pape v Federal Commissioner of Taxation [2009] HCA 23; Williams v Commonwealth [2012] HCA 23; Williams v Commonwealth [2014] HCA 23; and see Pillai and Williams, ‘Commonwealth Power and Environmental Management: Constitutional Questions Revisited’ (2015) 32 EPLJ 395, 406. 85. And in any case new limitations on Federal spending powers still leave it open to the Commonwealth to pursue its environmental objectives through direct purpose grants (see 5.23). 86. See . 87. Sections 19 and 20. 88. Sections 10–14 describe the primary objectives of these projects.

89. Defined in s 15. 90. Defined in s 16. 91. Defined in s 17. 92. See . 93. See further Chapter 18. The Henry Review, referred to at 5.26 above, recommended that industry assistance schemes should be regarded as transitional and ultimately phased out: see recommendations 58, 59. 94. Although expenditure on environmental projects is authorised under the Financial Framework (Supplementary Powers) Regulations 1997 Sch 1AA, the mere fact that expenditure is authorised by legislation is not enough if that legislation cannot be justified under any referable head of power under the Constitution; see Pillai and Williams, ‘Commonwealth Power and Environmental Management: Constitutional Questions Revisited’ (2015) 32 EPLJ 395. 95. Kartinyeri v Commonwealth (1998) 195 CLR 337. Such a law may also be either for the benefit or the detriment of a race. 96. Sections 384–390A. 97. New South Wales v Commonwealth (1975) 8 ALR 1; Bonser v La Macchia (1969) 122 CLR 177. 98. See 5.31. 99. Coastal Waters (State Title) Act 1980 (Cth); Coastal Waters (State Powers) Act 1980 (Cth); Coastal Waters (Northern Territory Title) Act 1980 (Cth); Coastal Waters (Northern Territory Powers) Act 1980 (Cth). 100. The licensing regimes that apply to the exploration for, and recovery of, minerals and petroleum in offshore areas are contained in the Offshore Minerals Act 1994 (Cth) and the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). One of the basic principles in relation to offshore minerals and petroleum under the Settlement is that the Commonwealth, the states and the Northern Territory should try to maintain, as far as practicable, common principles, rules and practices in regulating and controlling the exploration for, and exploitation of, these natural resources: Offshore Minerals Act 1994 (Cth) s 3; Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 5. See also Wulf, ‘Offshore Petroleum and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EBCA); Consideration of “All Adverse Impacts”’ (2005) 22 EPLJ 296. 101. Environment Protection (Sea Dumping) Act 1981 s 9; Protection of the Sea (Prevention of Pollution from Ships) Act 1983 s 9. 102. Sawer, in the House of Representatives First Report on the Inquiry into Hazardous Chemicals, Parl Papers 104, 1982; App VII, p 78; Booker, ‘Section 51(38) of the Constitution’ (1981) 4 UNSWLJ 91; Crommelin, ‘Offshore Mining and Petroleum — Constitutional Issues’ (1981) 3 AMPLJ 191; Lumb, ‘Section 51(xxxviii) of the Commonwealth Constitution’ (1981) 55 ALJ 328; Crawford, ‘Constitutional Issues Relating to Environmental Management’, unpublished paper delivered to a workshop on Industry and Environmental Law, Adelaide University School of Law, May 1984. 103. See note 102 above, except Crommelin. 104. Bonser v La Macchia (1969) 122 CLR 177. 105. Coastal Waters (State Powers) Act 1980 (Cth) s 5(c). 106. Fisheries Management Act 1991 (Cth). 107. See also Walrut, ‘The Legislative Powers of the Commonwealth and States Affecting Aquaculture’ (2002) 19 EPLJ 415. 108. See Macintosh and Cunliffe, ‘The Significance of ICM in the Evolution of s 51(xxxi)’ (2012) 29

EPLJ 297 at 299. 109. Similar considerations underlie the conferment of property rights under the Offshore Petroleum Act 2006 (Cth); see Edwards, ‘Interactions Between Petroleum Operations and Carbon Capture and Storage Operations’ (2009) 26 EPLJ 152 at 155. 110. Commonwealth v WMC Resources Ltd [1998] HCA 8 at [17] per Brennan CJ. 111. See also Esposito v Commonwealth of Australia [2014] FCA 1440. 112. The statement of claim is set out in full in Spencer v Commonwealth of Australia [2009] FCAFC 38 at [6]. 113. The Natural Heritage Trust of Australia Act 1997 (Cth) and the Natural Resources Management (Financial Assistance) Act 1992 (Cth). Such a condition might not be formally set out in the agreement, but could arise out of negotiations conducted and arrangements agreed to by different levels of government: see Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [31]. 114. On rights to compensation generally, see 2.20. 115. Spencer v Commonwealth of Australia [2009] FCAFC 38. 116. Spencer v Commonwealth of Australia (2010) 241 CLR 118. For commentary on this case, see Lloyd, ‘Compulsory Acquisition and Informal Agreements: Spencer v Commonwealth’ (2011) 33(1) Sydney Law Review 137. See also Bell, ‘Tree Clearing, Hunger Strikes and Kyoto Targets — The Need for a Middle Ground’ (2011) 28 EPLJ 201. 117. Four justices were ready to accept this point; three had doubts but found that they did not need to decide it, so as Fisher, ‘Water Law, the High Court and Techniques of Judicial Reasoning’ (2010) 27 EPLJ 85 at 92 remarks, the status of statutory water entitlements as ‘property’ remains somewhat equivocal. In Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3, a case involving the same set of provisions as, but decided after, the ICM case, Gummow and Crennan JJ also remarked (at [55]) ‘the appellants had no common law right to the extraction and use of groundwater for irrigation. They had the right (or, more accurately, the liberty) to do so given by their bore licences’. Note that one of the fundamental purposes of water reforms under the NWI was to enable trading and confer security in water entitlements: . Trading and security are hallmarks of ‘property’: see further 3.3. 118. Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 at 145 per Mason J. 119. Per Hayne, Kiefel and Bell JJ at [153]. Haydon J dissented; for an analysis of the reasoning, see Fisher, note 117 above. And for an analogous case involving a reduction in water entitlements under the Basin Plan see Lee v Commonwealth of Australia [2014] FCA 432. It has been argued that this leaves open the possibility that reducing and reallocating water entitlements to meet new government targets could provide an advantage to government and therefore represent an acquisition: see Maguire and Phillips, ‘The Role of Property Law: An Examination of Environmental Markets’ (2011) 28 EPLJ 215 at 228. It may also be argued, of course, that tradeable statutory rights such as carbon units as well as water, fisheries and offshore petroleum entitlements are now more likely to be regarded as extinguishable without the necessity to provide just terms compensation: see Macintosh and Cunliffe, ‘The Significance of ICM in the Evolution of s 51(xxxi)’ (2012) 29 EPLJ 297 at 315. Note that in a recent case before the English High Court, an emissions trading credit was treated as property: Armstrong DLW GmbH v Winnington Networks Ltd [2012] EWHC 10 (Ch). 120. A point made by Gray, ‘The Legal Framework for Water Trading in the Murray–Darling Basin’ (2012) 29 EPLJ 328 at 342. 121. ‘Evaluating the Success or Failure of the EPBC Act; A Response to McGrath’ (2007) 24 EPLJ 81 at 82. This commentary was responding to assertions made by McGrath, ‘Swirls in the Stream of Australian Environmental Law; Debate on the EPBC Act’ (2006) 23 EPLJ 165 that the Environment

Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) could not generally be characterised as a law with respect to the acquisition of property. McGrath’s article was itself a response to an earlier article by Macintosh and Wilkinson, ‘EPBC Act: The Case for Reform’ (2005) 10(1) AJNRLP 139, which discussed this point. 122. See (2007) 24 EPLJ 81, note 102 above, at 83. For discussion of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA), see Chapter 6. 123. Section 5(1)(g). 124. Sections 9 and 9A. 125. Constitution Acts 1902 (NSW); 1867 (Qld); 1934 (SA); 1934 (Tas); 1975 (Vic); 1889 (WA); Australian Capital Territory (Self-Government) Act 1988 (Cth); Northern Territory (SelfGovernment) Act 1978 (Cth). 126. (1989) 63 ALJR 687 at 691. 127. (1989) 63 ALJR 687 per Dawson, Toohey and McHugh JJ at 693. 128. See note 127 above. 129. For example, Mining Regulation 2010 (NSW) cll 62 and 63; Sch 6; Mineral Resources (Sustainable Development) (Extractive Industries) Regulations 2010 (Vic) cll 17 and 18; Sch 3. And for royalty rates in New South Wales, for example, see . 130. See further 7.40 and following. 131. See Lane, ‘The Present Test for Invalidity under Section 92 of the Constitution’ (1988) 62 ALJ 604; Taberner and Lee, ‘Section 92 and the Environment’ (1991) 65 ALJ 266. 132. (1988) 78 ALR at 67. 133. For an enlightened discussion of this case and of the whole issue of interstate trade in wildlife, see Preston, ‘Section 92 and Interstate Trade in Wildlife: A Moral Question’ (1987) 4 EPLJ 175. 134. (1990) 169 CLR 436 at 473. 135. Cole v Whitfield (1988) 78 ALR 42; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436. A claim by South Australia that Victorian trading rules for water breached s 92 as being protectionist and not appropriate and adapted to a non-protectionist purpose, was settled before the claim was brought to court; see Webster and Williams, ‘Can the High Court save the Murray River?’ (2012) 29 EPLJ 281 at 289–90. 136. Except in an emergency, the Act applies to pests (a) if the pest is capable of: (i)

infesting humans, animals or plants; or

(ii) acting as a vector for a disease; or (iii) causing disease in any other way; or (b) the pest is an invasive pest; Biosecurity Act 2015 (Cth) ss 25 and 26. 137. Biosecurity Act 2015 (Cth) s 28. 138. Biosecurity Act 2015 (Cth) Ch 6. 139. Biosecurity Act 2015 (Cth) Ch 3. A Biosecurity Import Risk Analysis is an evaluation of the level of biosecurity risk associated with particular goods, or a particular class of goods, that may be imported, or are proposed to be imported, into Australian territory, including the identification of conditions that must be met to manage the level of biosecurity risk associated with the goods, to a level that achieves the appropriate level of protection (ALOP) for Australia; Biosecurity Act 2015 (Cth) s 166. The ALOP is a high level of sanitary and phytosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero, in accordance with Australia’s rights and obligations under the World Trade Organization Agreement on Sanitary and Photosanitary

Measures (SPS Agreement); Biosecurity Act 2015 (Cth) s 5. On the SPS Agreement see 4.40. 140. Allders International Pty Ltd v Commissioner for State Revenue (Victoria) (1996) 140 ALR 189. This is so even if the Commonwealth place is leased to another entity for commercial purposes. 141. Constitution s 52; Commonwealth Places (Application of Laws) Act 1970 s 4(2)(a); Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453; Ventana Pty Ltd v Federal Airports Corporation & Fairways Group Pty Ltd (1997) 95 LGERA 58; Commonwealth v Western Australia (1999) 196 CLR 392; Durable Building Products Pty Ltd v Sutherland Shire Council (2000) 111 LGERA 106; Heritage Council (Qld) v Corp of Trustees of Roman Catholic Archdiocese of Brisbane (2000) 110 LGERA 193; South Sydney City Council v Paliflex Pty Ltd (2003) 129 LGERA 384. The National Environment Protection Measures (Implementation) Act 1998 makes provision for the possible application of state laws to enable the objects of National Environment Protection Measures (NEPMs) to be achieved: see ss 12–15. 142. When the Commonwealth disposes of such land it ceases to be a Commonwealth place. This does not mean, however, that local planning schemes will automatically apply to the land. To apply to such a place, a planning scheme may need to be specifically amended to provide for compliance once the property has been disposed of: Attorney-General (NSW) v Stocks & Holdings (Constructors) Pty Ltd (1970) 45 ALJR 9; Kangaroo Point East Association Inc v Balkin [1995] 2 Qd R 135. 143. Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143; BMG Resources Ltd v Beaconsfield Municipal Council [1988] Tas R 142; Kangaroo Point East Association Inc v Balkin [1995] 2 Qd R 135. 144. Ventana v FAC (1997) 95 LGERA 58. 145. For example, airports; see Commonwealth Places (Application of Laws) Regulation 2014. 146. State laws can only apply to Commonwealth places if s 4 of this Act renders them ‘applied laws’. Only if state environmental laws are ‘applied laws’ would a state court have jurisdiction to apply state environmental laws: see, for example, Corowa v Queensland (2006) 149 LGERA 1. 147. Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89; R v Phillips (1970) 125 CLR 93. 148. See the provisions of the COAG Agreement at 5.54. 149. In Bayside City Council v Telstra Corp Ltd; Moreland City Council v Optus Vision Pty Ltd; Warringah Council v Optus Vision Pty Ltd; Hurstville City Council v Telstra Corp Ltd (2004) 133 LGERA 65, for example, s 109 applied to defeat levies that were imposed on the telecommunications carrier by state laws, which the High Court deemed discriminatory and which conflicted with the clear provisions of the Telecommunications Act 1997 (Cth) s 44. 150. Commercial Radio Coffs Harbour v Fuller (1986) 60 LGRA 68; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 (both federal and territory approval requirements applied to a road project); Development Assessment Commission v 3GIS Pty Ltd [2007] 154 LGERA 72 (application of state development laws to telecommunications facilities); although even where state and federal laws operate concurrently, ‘the constitutional paramountcy of federal law is a contextual consideration that informs the resolution of the contested issues of interpretation’: see Hutchison 3G Australia Pty Ltd v City of Mitcham [2006] HCA 12; (2006) 145 LGERA 386. 151. Defence Act 1903 (Cth) s 122A. 152. Australian Nuclear Science and Technology Organisation Act 1987 s 7A. 153. See also Durable Building Products Pty Ltd v Sutherland Shire Council, note 141 above. 154. Corowa v Queensland (2006) 149 LGERA 1. 155. Schedule 3, s 37; see, for example, Leichhardt Council v Telstra Corporation (2005) 139 LGERA 62; Gold Coast City Council v Satellite & Wireless Pty Ltd [2014] FCAFC 51.

156. Schedule 3, s 28. 157. Schedule 3, ss 15, 27, 28 and 55. And see Lee, ‘Public Engagement and the Installation of Wireless Facilities Exempt from Local Planning Requirements’ (2007) 13 LGLJ 131. 158. Schedule 3, ss 50 and 51. 159. Schedule 3, s 18. 160. Schedule 3, s 17. 161. Schedule 3, s 10. 162. Schedule 3, s 9. 163. Schedule 3, s 11. 164. ‘The Environmental Impact of Commonwealth Activities and Places in Victoria’, Parliament of Victoria, 1994, p 77. 165. See note 165 above, p 102. 166. Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority (1997) 71 ALJR 1254. 167. Commonwealth v Bogle (1953) 89 CLR 229; Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372. 168. Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority (1997) 71 ALJR 1254. A majority of the court held that, while the Commonwealth is immune from state laws that purport to modify the nature of executive power vested in the Commonwealth Crown (its ‘capacities’, rights, powers, privileges and immunities), it was not immune from legislation that merely sought to regulate activities entered into by the Commonwealth in exercise of those capacities. In this case, state legislation that purported to affect the Commonwealth as a landlord was held to apply to the Commonwealth. In the context of environmental regulation, the distinction may be particularly elusive. 169. Legal Briefing, ‘The Commonwealth’s Implied Constitutional Immunity from State Law’ No 36, 30 August 1997; and see Bradbury, ‘Federal Immunity and Compliance’, unpublished paper delivered to the National Environmental Law Association Conference, Canberra, May 1998. 170. COAG, Heads of Agreement, November 1997, Attachment 3, cl 2(c), (d). 171. Heads of Agreement, Attachment 3, cl 2(a), (b). 172. Heads of Agreement, Attachment 3, cl 4. 173. Heads of Agreement, Attachment 3, cl 3. A similar commitment is made for exemptions: cl 5. 174. Heads of Agreement, Attachment 3, cl 6. 175. On world heritage issues, see Davis, ‘Federal–State Tensions in Australian Environmental Management: The World Heritage Issues’ (1989) 6 EPLJ 66. 176. Greiner, ‘The New Environmentalism: A Conservative Perspective’, paper released by the NSW Premier’s Office, Sydney, 22 April 1990, p 6. 177. See Kehoe, ‘Land Clearing in Queensland’ (2006) 23 EPLJ 148. 178. See 5.57. 179. For an interesting review of how ‘cooperative federalism’ has worked in the United States in respect of environment protection and comparisons with the Australian situation, see Battle, ‘Environmental Law and Cooperative Federalism in the United States’ (1985) 2 EPLJ 302. 180. See . 181. See . 182. See . 183. See . 184. See . 185. See . 186. See . 187. See . 188. See . 189. See . 190. See . 191. See . 192. See . 193. See . 194. See . 195. ‘Commonwealth Natural Resource and Management Programs’, Auditor-General Performance Audit, Report No 36, AGPS, 1996–97. For a useful survey of the history of implementation of the NHT and National Action Plan on Salinity and Water Quality, see Spencer v Commonwealth [2008] FCA 1256. 196. Regional Delivery Model for the Natural Heritage Trust and the National Action Plan for Salinity and Water Quality, Auditor-General Performance Audit, Report No 21, AGPS, 2007–08. 197. See . 198. Hawke, Towards a Closer Partnership, speech delivered at the National Press Club, Canberra, July 1990, p 3. 199. See . 200. See . 201. See Chapter 18. 202. See Chapter 17. 203. See . 204. See . 205. See further Chapter 16. And for further commentary on the political context in which these requirements are set, see Dovers, ‘Precautionary Policy Assessment for Sustainability’, in Fisher et al (eds), Implementing the Precautionary Principle: Perspectives and Prospects, Edward Elgar, Cheltenham, 2006. 206. See . The functions of the NEPC are to make NEPMs and to assess and report on the implementation and effectiveness of NEPMs in participating jurisdictions. See further 15.2 and following. 207. See . 208. See . 209. See 15.2.

210. See . 211. See . 212. For a full list of councils and consultative committees relevant to the work of the federal Department of Sustainability, Environment, Water, Population and Communities, see . 213. See . 214. See . 215. See . 216. See . 217. See . 218. For discussion on threatened species, see Chapter 14. 219. See . 220. See . 221. IGAE Schs 5 and 6. 222. The agreement is set out in the Schedule to the National Environment Protection Council Act 1994 (Cth). 223. IGAE s 3.3. 224. IGAE s 3.4. The parties then go on to commit themselves to the four principles of sustainable development, discussed further in Chapter 8. 225. Section 2.2. These are expressed to relate to foreign policy and international obligations, environmental effects reaching beyond one state or into the marine environment, and facilitating the development of national environmental standards and guidelines. 226. See further 15.2 and following.

[page 181]

Chapter 6 The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) Introduction 6.1 This chapter analyses in some detail the Commonwealth’s principal piece of environmental legislation. There are four parts to this: 1.

the application of the Act;

2.

the referrals process;

3.

the assessment process;

4.

the approvals process.

Other aspects of the Environment Protection and Biodiversity Conservation Act 1999 (EPBCA), such as recognition of protected areas and threatened and migratory species, are dealt with in future chapters.

Application of the Act 6.2 The EPBCA1 is the outcome of a decade of debate about what ought to be the Commonwealth’s legitimate legal role in environment protection. Prior to this, it was never entirely certain what legal responsibilities the Commonwealth might adopt, and Commonwealth interest in an issue might only surface in the context of a dispute about resource use and consequent assertion of Commonwealth legislative power; for example, the Tasmanian Dam case discussed at 5.11. The EPBCA replaces the environmental assessment (EA) provisions of the

former Environment (Impact of Proposals) Act 1974 (Cth) (EPIP Act), under which [page 182] Commonwealth EA of projects had been conducted for nearly 25 years.2 The EPIP Act was not without its problems3 and a number of significant court challenges were made in relation to decisions taken under it. This Act and its administrative procedures effectively extended to all projects that were to be undertaken by a Commonwealth government department or authority,4 or which required Commonwealth approval or finance. First, these encompassed works or projects undertaken by Commonwealth departments and authorities, for example, defence projects, railways, national highways, airports, postal and telecommunication facilities and developments on Commonwealth land. Second, grants to state governments for specific programs, such as road projects and international standard sporting facilities, and third, proposals that required Commonwealth approval, usually in relation to the export of primary products, such as minerals or woodchips, or the application of foreign investment to a project, such as a tourist facility. The procedures, however, only applied to action undertaken by or on behalf of the Commonwealth, not to projects proposed by other entities, such as private corporations seeking Commonwealth approvals. In addition, the proposal also had to affect the environment to a significant extent5 and this was a matter that had to be determined by the Commonwealth authority or minister responsible for the proposed action (referred to as the ‘Action Minister’), not by the Environment Minister. Not surprisingly, this aspect of the procedures came under heavy criticism. It was the duty of the Action Minister to refer a ‘proposed action’ (that is, a matter referred to in s 5 of the Act) to the Department of Arts, Sport, Environment, Tourism and Territories (DASETT) and to designate the person or authority that would be responsible for undertaking the development (the ‘proponent’ of the action).6 The procedures also came to be regarded by the Commonwealth as imposing unnecessarily stringent requirements for EA on extensions of projects, particularly forestry operations, that had already been assessed in the past, and for which the Commonwealth considered there would be no significant additional impacts.7 [page 183] 6.3 The EPBCA8 retains the concept of significant environmental impact, but places the responsibility for determining this with the environment minister. The EPBCA also, unlike the EPIP Act, categorically defines the

environmental issues in which the Commonwealth is interested in conducting assessments before issuing Commonwealth approvals (matters of national significance and Commonwealth areas and activities).9 It also introduces procedures for strategic assessment of policies, plans and programs, as well as actions. 6.4 The EPBCA operates concurrently with state and territory legislation, which means that in addition to state or territory approvals for projects and activities, a proponent may also need to gain Commonwealth approvals. Commonwealth initiatives to reduce ‘green tape’,10 however, seek to streamline this process as much as possible by accrediting state and territory EAs for Commonwealth purposes.11 6.5 The EPBCA concentrates on those ‘matters of national environmental significance’ first flagged in the COAG Agreement 1997, and augmented as required, namely: those that may have significant impact on declared world heritage properties;12 those that may have a significant impact on a national heritage place (added in 2003);13 those that may have significant impact on declared Ramsar wetlands;14 [page 184] those that may have significant impact on listed threatened species or endangered communities;15 those that may have significant impact on listed migratory species;16 nuclear actions17 that may have significant impact on the environment; actions in Commonwealth marine areas18 that may have a significant impact on the environment; actions within the Great Barrier Reef Marine Park that may have a significant impact on the environment (added in 2009);19 protection of water resources from coal seam gas development and large coal mining development (added in 2013);20 and actions, prescribed by the regulations, that are of national environmental significance.21 The Act also applies to:

actions on Commonwealth land22 that may have significant impact on the environment; actions taken outside Commonwealth land that may have significant impact on the environment on Commonwealth land; actions taken by the Commonwealth that may have a significant impact on the environment both within and without the Australian jurisdiction;23 international trade in wildlife;24 listed marine species;25 whales and cetaceans;26 declared commercial fishing activities;27 biosphere reserves;28 and overseas places of historic significance to Australia.29 [page 185] 6.6 The tenor of the Act indicates that outside Commonwealth land and marine areas,30 the Commonwealth will only be interested in actions that might affect matters of national environmental significance, as described above, or that are conducted by Commonwealth agencies.31 Apart from national heritage, and large coalmines and coal seam gas, these ‘matters of national environmental significance’ represent legal responsibilities that the Commonwealth already has under international law by reason of its ratification of international conventions.32 It is certainly arguable that the national government should have had a clearer and a broader vision of what are matters of national environmental significance.33 Land clearing, for example, is inescapably linked to loss of biodiversity, salinity and water quality — issues that are recognised by all Australian governments as of immediate and significant national concern. Climate change has also escaped specific recognition, although for a number of years there has been agitation to insert a ‘greenhouse trigger’ into the Act. In October 2008, the federal government announced a review of the EPBCA, which, among other things, would consider the appropriateness of current matters of national environmental significance. The Report emanating from this review, released late in 2009,34 made a number of recommendations about matters of national environmental significance, particularly in relation to ecosystems and vulnerable ecological communities, and also suggested an interim greenhouse trigger. While in-principle support

was been given to some of the recommendations affecting biodiversity, the greenhouse trigger has been rejected.35

Actions 6.7 The processes under the Act are triggered by certain types of action. An action is defined as including (s 523): a project; a development; an undertaking; an activity or series of activities; and an alteration of any of these. [page 186] In Mees v Roads Corporation [2003] FCA 306, a Victorian government referral of a proposed freeway project was found by the court to have been misleading, because it sought to effectively break the project into constituent parts (actions) that alone might not trigger the Act. The justification for this was that the only certain part of the project for which the government wished to seek approval at that stage was the part actually referred. Nevertheless, the court found that not to refer the totality of the envisaged project offended the purpose of the controlling provisions, which were to enable the minister to make a sound judgment on the potential significance of the environmental effects of the entire project. Subsequently, the Act has been amended to provide that if the minister receives a referral in relation to a proposal to take an action, and the minister is satisfied the action that is the subject of the referral is a component of a larger action that is proposed but not referred, the minister may decide to not accept the referral.36 Logging operations to be conducted over a period of time could, for example, fall within the contemplation of this provision.37 A decision by a government authority to authorise another person to take an action,38 or provision of government funding for an action,39 is not itself to be regarded as an action. Previously, under the legislation that preceded the EPBCA, the Environment Protection (Impact of Proposals) Act 1974 (Cth), Commonwealth involvement was often at the mercy of indirect triggers such as Commonwealth financial involvement in a project or the necessity to gain a Commonwealth approval, where environmental issues might have been of

merely local, rather than national, significance. The uncertainties of such an approach, and the unnecessary duplication of effort that often followed the separate EAs and approvals processes required by both Commonwealth and state agencies, should not occur under the EPBCA, because this qualification of the term ‘action’ effectively removes those triggers. 6.8 Actions that, if undertaken without approval under the Act, would be prohibited are known as ‘controlled actions’.40 A person must not take a controlled action unless approved under the Act.41 Prohibited actions are those that would or would be likely to have significant impacts on matters of national environmental significance,42 or which might significantly impact on the environment on Commonwealth land,43 or outside Commonwealth land (whether inside or outside Australia) if conducted by [page 187] a Commonwealth agency,44 unless otherwise approved by the minister or exempted from needing approval.45 Clearly, then, the test of ‘significant impact’ is the key to determining the question whether an action is a controlled action.46

The referrals process 6.9 A proponent of an action that is, or the person thinks may be, a controlled action must refer the proposal to the federal minister for a decision whether or not the action is a controlled action.47 Likewise, an action that a person thinks is not a controlled action may be referred to the minister.48 A state or territory, or Commonwealth, authority that has administrative responsibilities relating to an action being taken by another person may also refer it to the minister to determine whether or not it is a controlled action.49 The minister may also request a referral from a person or state or territory authority.50 A referral may be subsequently withdrawn before the minister makes a decision on the proposal referred and an alternative referral made.51 In Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8, Heerey J said (at [21]–[22]): It is likely that the Act was drafted on the assumption that it would be preferable that proposed actions be referred at an early stage in their development in order that proposals could evolve in a direction that is positive for the environment. If a proposed action can be referred when its details are still being formulated, the Department (the Minister’s advisers) can play a role in the development of the proposal having regard to the principles and objectives of the Act. Referral at an early stage permits, amongst other things, early identification of possible impacts on relevant

environmental matters and allows the opportunity to address and possibly avoid those impacts as the proposal is developed. The function of the referral step is not to fix in stone all the details of a proposed ‘action’ for the subsequent approval process. Rather, this mechanism results in the proposal either being brought within the Environment Act assessment and approval regime, or being exempted from the requirements of assessment and approval under the Act.

[page 188] In Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2007) 97 ALD 398 at [70], Stone J described the scheme of the Act as providing: … an initial clearing house so that actions that are likely to have a significant impact on the environment are properly assessed and those that do not fall into that category may be identified in a timely way and not impeded.

The referral mechanism operates as a kind of triage system. It is not the function of the triage nurse to make a detailed diagnosis, let alone prescribe treatment. 6.10 Referrals must include the information stipulated in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Sch 2.52 This may include, for example, a detailed description of the proposal, the nature and extent of likely impacts and a description of the important features of the project area and affected areas. As mentioned above, a referral may also be rejected by the minister if it is, in fact, a component of a larger action the person proposes to take.53 In Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670, a referral by the Victorian Department of Sustainability and Environment for construction of a proposed desalination plant that mentioned, but omitted details of, preliminary investigation works that were to be undertaken to obtain information for the purpose of project design, location and EA, was challenged by the plaintiffs. These ‘preliminary works’ had not been specified in the referral because they were adjudged by the Department as not likely to have any significant effects on matters of national environmental significance. The plaintiffs claimed, inter alia, that the ‘preliminary works’ were a component of the project and could not simply be omitted from the referral; and should have been formally included in the subsequent decision by the minister’s delegate that the action was a controlled action. Heerey J concluded that, not having been referred, these matters were not part of the action that had been referred and therefore no decision about them had in fact been made by the minister’s delegate that could be challenged.

6.11 An amendment to the Act now allows any person to request the minister to reconsider the decision whether an action is a controlled action and which provisions are the controlling provisions,54 although the minister has limited grounds on which to revoke the original decision.55 It will be an offence to undertake an action where a referral has not been effectively determined.56 A proponent may apply for a variation of a proposal after the initial referral,57 though the minister cannot accept such a variation unless satisfied that the character of the [page 189] varied proposal is substantially the same as the character of the original proposal.58 The function of the referral process is not to ‘fix in stone all the details of a proposed action for the subsequent approval process’.59 A referral of an action that is then withdrawn can be re-referred.60

Consultation 6.12 After receiving referral of a proposal, the environment minister must invite other appropriate Commonwealth ministers to provide information that may be relevant to determining whether the action is a controlled action.61 The appropriate state or territory minister must also be contacted if the environment minister thinks the proposed action may have an impact on matters that are protected as being of national environmental significance.62 Members of the public must also be invited, via the internet, to comment on whether the action is a controlled action.63

Significant impact 6.13 A referral will be made, or requested, of course, because of the likelihood that the proposal will have a significant impact on the environment. The term ‘significant’ properly operates as a limitation to exclude impacts that are minor or negligible.64 The task of determining whether an action might have a ‘significant impact’ is entrusted to the minister, taking into account matters prescribed by the Act.65 The question of significance, however, is not expressed as a matter of objective fact that must exist before the minister can decide whether an action is a controlled action (a ‘pre-condition’); this question is for subjective determination by the minister.66 In Anvil Hill Project Watch Association Inc v Minister for the

Environment and Water Resources [2008] FCAFC 3 the Court said (at [25– 26]): In the present case, the language of s 75(1) of the Act and the related provisions referred to by the appellant does not require any objective factual determination as a condition precedent to the exercise of the power of the Minister to make a decision under s 75(1). There are no references to expressions such as ‘Where there is a significant impact, the Minister may …’, or ‘If there is likely to be a significant impact, the Minister may …’ or even ‘Where there are grounds on which the Minister can consider whether there is likely to be a significant impact, the Minister may …’, each of which may suggest the existence of a condition precedent to the exercise of the power by the Minister.

[page 190] Section 75(1) of the Act imposes a duty on the Minister to decide whether a proposed action is a controlled action. In making this decision, the Minister must take into account the elements of a controlled action as defined by s 67, which in turn involves a determination whether the proposed action would be prohibited by a provision of Part 3 of the Act, including those provisions which give rise to what the appellant asserts is the condition precedent of s 75(1). The determination of this latter question involves a duty to determine whether there would be a prohibition under Part 3 of the Act which applies to the proposed action because the action has, will have or is likely to have a significant impact on a relevant aspect of the environment. The duty to make this determination is assigned to the Minister. It is not given to a court or tribunal, and is not expressed as an objective matter. As a result, the performance of this duty is not properly to be regarded as a condition precedent to the exercise of the power in s 75(1).

6.14 The Commonwealth has also published guidelines on how to determine ‘significant impacts’ both generally and in relation to specific elements of the environment, particularly species and ecosystems. These administrative guidelines for determining significant impacts cover both matters of national environmental significance and impacts on Commonwealth land and by Commonwealth agencies.67 Specialist guidelines relate to particular species, such as flying foxes and quolls; specific habitats, such as littoral rainforests and temperate grasslands; and specific activities, such as offshore seismic operations, offshore aquaculture, wind farms, and large coalmines and coal seam gas. The guidelines indicate the breadth of matters that must be considered; for example, the sensitivity of the receiving environment, direct and indirect and on-site and off-site impacts, and the degree of knowledge and understanding about the possible impacts. In reality, the guidelines merely state criteria to which the minister will have reference in determining whether an activity is a controlled activity. The guidelines have no impact on the legal interpretation of the minister’s responsibilities.68 The Regulations also declare that grazing of domestic stock within the Australian Alps National Parks and Reserves has a significant impact on the national heritage values of that place,69 thus triggering the offence and approvals provisions of ss 15B and 15C of the Act.

6.15 The test of significance, however, obviously gives a large measure of discretion to the minister in deciding whether or not to trigger the EA processes under the Act.70 [page 191] Not surprisingly, therefore, the Federal Court has been called on to interpret the scope of these responsibilities. ‘Likely’ has been interpreted as meaning a real or not remote chance or ‘possibility’; and ‘significant impact’ as an impact that is ‘important, notable or of consequence having regard to its context or intensity’. 71 In Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 134 LGERA 272 (the Nathan Dam case),72 the issue was whether the proposed construction and operation of a dam several hundred kilometres upstream from the Great Barrier Reef World Heritage Area, could be said to be likely to have a significant impact on the world heritage values of the reef. If it could, then action could not be taken without the approval of the federal Environment Minister.73 In determining whether this proposal was such an activity (a ‘controlled action’), the minister had to consider all adverse impacts.74 The minister determined that the dam itself did not pose any threat of significant impact on the reef; he ignored, however, the potential impacts by persons irrigating land using water from the dam because those were not impacts from the construction or operation of the dam. One of the purposes of dam construction, however, was to make water available to irrigators; and the adverse impacts that could flow from them could include threats from discharges of water contaminated by pesticides and other agricultural pollutants. The court held that the minister had misconstrued his statutory duty, by adopting a narrow interpretation of what were likely significant impacts. The term ‘impact’ meant the influence or effect of an action, and could readily include the indirect consequences of an action and impacts occasioned by persons other than the proponent, and that were not within the control of the proponent. So long as the minister properly understood and applied this concept, whether a particular impact was ‘adverse’ was a matter of fact for the minister to determine. In this case, however, the minister had clearly misunderstood the nature of his duty. The impacts that the minister should have considered included not just the immediate impacts stemming from construction of the dam, but all consequences that could be predicted to follow its construction and operation.75 In agreeing with the objectors that the minister had misconstrued his role, and should have considered indirect as

well as direct impacts of dam construction, the Federal Court made an important contribution to environmental decision-making: that the responsibility to consider adverse environmental impacts should not be narrowly construed, an interpretation that accords with reality if not political expediency. [page 192] 6.16 It seems, however, that such an interpretation was practically inconvenient; the EPBCA has more recently redefined ‘impact’ to limit indirect or ‘secondary’ consequences of actions to consequences that are more directly linked to the primary action.76 While not specifically limiting cumulative impacts, it must be established that the action is a substantial cause of an indirect consequence.77 Further, where an action is taken by another person as a consequence of the primary action, but not taken at the direction or request of the person undertaking the primary action, consequential events or circumstances are only impacts if the primary action facilitates to a major extent the secondary action; and both the secondary action and the consequential events or circumstances are within the contemplation of the primary person or a reasonably foreseeable consequence of the secondary action.78 6.17 The Nathan Dam case was subsequently followed in Brown v Forestry Tasmania (No 4) [2006] FCA 1729, where Marshall J concluded that Forestry Tasmania’s forestry operations in the Wielangta forests were subject to the threatened species provisions of the EPBCA because of the existence of the rare wedge-tailed eagle, and not protected by the exemption for actions taken under a Regional Forest Agreement (RFA)79 because the agreement did not adequately protect the eagle. The potential for ‘significant impact’ was raised by evidence of poor management practices by Forestry Tasmania. An action, though potentially insignificant by itself, might, in the overall scheme for management, contribute to a significant cumulative impact. This decision was overruled on appeal to the Full Court, the court construing the legal obligations under the EPBCA to be satisfied by the declaration of a reserve to protect threatened species.80 6.18 The mining, transportation and burning of coal has also raised claims that such projects should be declared to be controlled actions. In Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage [2006] FCA 736, however, Dowsett J agreed with the process of assessment adopted by the minister’s delegate that concluded there would be no significant impact on matters protected by Pt 3

from such activities. Similarly, in Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2007] FCA 1480; [2008] FCAFC 3, it was held that the construction and operation of an open cut coalmine was not a controlled action; potential impacts on matters protected by Pt 3 were uncertain and conjectural. And in Your Water Your Say Inc v Minister for Environment, Heritage and the Arts [2008] FCA 670, greenhouse gas issues consequent on a proposal for a desalination plant were held not to be impacts that by law were [page 193] required to be considered under s 75; though in any case these had been considered. Clearly, the problem these cases have is proving that the action in question can be shown to have any significant impact on a national environmental significance (MNES) through some speculative effect on global climate.81 Whether there has been a ‘significant impact’ does not depend on the environment in question being ‘natural’ or ‘pristine’ prior to the activities that are called into question.82

The minister’s decision 6.19 Once a referral has been received by the minister, then subject to any requests by the minister for further information,83 the minister must decide, after taking into account public submissions,84 whether the action that is the subject of a proposal referred to the minister is a controlled action; and if so which provisions of Pt 3 (if any) are ‘controlling provisions’85 for the action. In making this decision, all adverse impacts must be considered; beneficial impacts must not be considered.86 If, within 20 business days after the minister receives the referral, the minister considers, on the basis of the information in the referral, that it is clear that the action would have unacceptable impacts on a matter protected by a provision of Pt 3, the minister may inform the person proposing to take the action that the action is clearly unacceptable.87 If the proponent requests the minister to reconsider this decision, then public notice inviting comments on the proposal must be given.88 If the minister determines that an action is not a controlled action, it will not trigger the assessment and approvals processes under the EPBCA. Normally, a controlled action would proceed to assessment; though the

minister can find that a proposed action is not a controlled action on the basis that it will proceed in a particular manner and therefore not trigger the controlling provisions that might otherwise apply.89 So long as the action proceeds on the basis set out in the notice of the minister’s decision it will not be deemed a controlled action. [page 194] 6.20 The minister has a limited power to vary or substitute a decision based on the availability of substantial new information or change in circumstances.90 Ministerial power is equally limited where there is a request by a state or territory minister to reconsider a proposal to be undertaken in the state or territory, where the person proposing to take the action did not refer it with a statement that the person thought the action was a controlled action.91 6.21 If the action is determined to be a controlled action, ‘relevant impacts’, including past, future and probable impacts, must be assessed by one of the methods laid down in the Act.92 However, this provision does not require the minister, either expressly or by necessary implication, to have regard to the cumulative impacts of the proposal together with other existing and nominated projects. There is no express statutory requirement anywhere in the EPBCA that the minister should have regard to the cumulative impacts of each nominated project.93

Notice of and reasons for the decision 6.22 Notice of the decision must be given to the person proposing to take the action, the proponent (if different) and, if it is a matter of national environmental significance, the appropriate state or territory minister.94 If the decision is that the action is a controlled action, then the notice must specify the relevant controlling provisions;95 that is, the provisions that prohibit the controlling action from being undertaken without approval.96 A person given a notice may request reasons for the decision within 28 days.97 Notice of a decision must also be published in accordance with the regulations.98 However, as the requirement to provide reasons only seems to apply to a person who ‘has been given the notice’, arguably this may exclude members of the public who receive notice via publication. If the minister determines that the action is a controlled action, a person must be designated as proponent of the action.99

The assessment process 6.23 Assessment of controlled actions takes place under Chapter 4 of the EPBCA.

Federal–state cooperative arrangements 6.24 Any particular project that is a controlled action100 under the EPBCA will have the potential to attract both state and federal EA requirements, if approvals must [page 195] be obtained from both levels of government. While, in the event of conflict, federal controls will clearly prevail over any inconsistent state requirements with respect to the same aspects of the proposal, by virtue of the superior constitutional status of federal legislation,101 government policy is clearly to approach EA of such proposals in a cooperative and non-duplicatory manner.102 6.25 The Inter-Governmental Agreement on the Environment (IGAE),103 which came into effect in May 1992, stated the desirability of establishing ‘certainty about the application, procedures and function of the environmental impact assessment (EIA) process, to improve the consistency of the approach applied by all levels of government, to avoid duplication of process where more than one government or level of government is involved and interested in the subject matter of an assessment and to avoid delays in the process’.104 It was agreed that processes for EIA should be based on a number of key principles. These included the applicability of EIA to both private and public sector proposals, clear guidance on the types of proposals likely to attract EIA, levels of assessment to be appropriate to the environmental significance and potential public interest, adequate public participation and disclosure of information, and developing environmental monitoring and management programs.105 Even before the IGAE, however, it was increasingly common practice for the Commonwealth not to require an EIS if satisfied that the assessment process to be undertaken by a state or territory government would effectively address Commonwealth concerns.106 These informal bilateral arrangements between the Commonwealth and the states have now been formalised by the provisions of the EPBCA, which enable the Commonwealth to provide for

accreditation of state or territory processes for EA (assessment bilaterals).107 Standards for drawing up assessment bilaterals are set out in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth). Assessment bilaterals have now been concluded with all states and territories.108 [page 196]

Bilateral agreements 6.26 A bilateral agreement109 is an agreement concluded between the Commonwealth and a state or territory that provides for accreditation of state or territory processes for EA or approval of actions, or in some other way protects the environment or promotes conservation and the ecologically sustainable use of natural resources (such as through a management plan).110 An agreement will not have effect in Commonwealth areas,111 or in relation to actions by the Commonwealth or Commonwealth agencies, unless expressly provided for in the agreement;112 and in any case, an agreement will not have any effect in relation to certain national parks.113 Essentially, then, a bilateral agreement enables the Commonwealth to accredit state processes for assessing and approving actions that may significantly impact on matters of national environmental significance. Bilateral agreements can either relate to the EIA assessment process alone (‘assessment bilaterals’) or can go further and actually endorse the state approvals processes following assessment (‘approval bilaterals’). Commonwealth processes may be similarly accredited by ministerial declarations.114 6.27 The purpose of an agreement is generally to minimise duplication of EA and approval processes that may be required under both state and federal law, while at the same time securing effective processes for the EA and approval of actions that might affect the environment.115 Through the conclusion of an agreement, the Commonwealth can withdraw from assessment processes it might otherwise have to undertake, satisfied that state processes for EA of actions in which the Commonwealth has an interest will meet appropriate standards. These standards or other criteria for concluding such an agreement may be prescribed by regulation.116 The intent is that the level of protection afforded by state processes must be at least equal to that provided by Commonwealth processes. A bilateral agreement may also declare that actions assessed in a specified manner by a state or territory will not need further assessment under the EPBCA so long as the assessment itself includes impacts on matters protected under the Act, and the specified manner of assessment meets the criteria set out in the Regulations.117 All

states and territories have finalised such agreements.118 Where a proposal referred under the EPBCA is assessed by a state or territory agency, the agency must provide an assessment report for the benefit of the Commonwealth minister that contains enough information about the [page 197] relevant impacts of the proposed action to enable the Commonwealth minister to make an informed decision whether or not to approve the taking of the action under the EPBCA.119 6.28 An approval bilateral may declare that actions approved by a state or territory will not need approval under the EPBCA Pt 9, but only if such approval has been given in accordance with a management plan in force under state or territory law and accredited by the Commonwealth minister for the purposes of the agreement.120 Before accrediting a management plan,121 the minister must be satisfied that both the plan and the law under which it is in force meet the criteria prescribed in the Regulations;122 that there will be adequate assessment of impacts of actions approved under the plan on matters protected by the EPBCA Pt 3; and that no unacceptable or unsustainable impacts on such matters will occur. An agreement must require a state to act in accordance with the accredited management plan, and not to approve actions inconsistent with it. All agreements that exempt actions undertaken under accredited management plans must include an undertaking by the states that environmental impacts on matters not covered by Pt 3 (that is, not of national environmental significance) will be assessed to the greatest extent practicable if taken by a corporation, taken for purposes of trade and commerce, taken to give effect to the international obligations of Australia, or taken in the territory.123 A similar undertaking is required for impacts, except ‘relevant impacts’,124 that such actions undertaken under accredited EA processes will have on the environment.125 Without such undertakings, the agreement will not have effect.126 6.29 Accreditation of a management plan is subject to disallowance in the federal parliament. The New South Wales management plan for the Sydney Opera House is the only plan to date that has been accredited under this provision.127 6.30 Draft agreements must be published for public consultation, and the minister must have considered the role and interests of Indigenous Australians in promoting conservation and the ecologically sustainable use of natural resources, taking into

[page 198] account Australia’s obligations under the Convention on Biological Diversity 1992.128 Agreements must also not be inconsistent with international obligations in relation to world heritage, Ramsar wetlands, and threatened and migratory species, and must promote management of national heritage places in accordance with national heritage management principles.129 Agreements relating to nuclear action, or action prescribed under s 25(1),130 that involve trade and commerce, either internationally or domestically between the states, must not give preference to any state over another.131 6.31 The Act also makes provision for the suspension and cancellation of agreements as a result of contraventions or non-compliance.132 An agreement will cease to have effect after five years, or earlier if provided for in the agreement.133 The parties may also agree to revoke it. 6.32 An action to be taken in a state or territory that is of a class declared by a bilateral agreement134 not to need assessment under these provisions, will be exempt if the action has been assessed in a manner specified in the agreement.135 Where, because of the existence of a bilateral agreement, assessment of an action will not be conducted under the EPBCA, but will still need the Commonwealth minister’s approval, the agreement must provide for the minister to receive a report including, or accompanied by, enough information about the relevant impacts of the action to let the minister make an informed decision whether or not to approve the action.136

Streamlined environmental assessments and approvals 6.33 Recently, proposals to further delegate decision-making powers to the states and territories have been proposed by the Commonwealth.137 To reduce time and costs for businesses, and duplication of conditions under dual sets of approvals, the Commonwealth intends to make more use of accreditation of state policies. The intention seems to be to use the revised NSW bilateral agreement on EA138 as the benchmark for further development. Under the revised bilateral, three New South Wales offsets policies have been accredited.139 This means that proponents who meet the criteria for proceeding under these offsets policies, or the revised bilateral [page 199] agreement more generally, will no longer need to engage with the EPBCA process. Where proponents still need to refer a proposal to the

Commonwealth, then a draft conditions policy140 is intended to streamline the process and reduce duplication of conditions between state and Commonwealth approvals. 6.34 The Commonwealth has also declared its intention to conclude agreements with the states on ‘approval bilaterals’; a ‘one-stop shop’ for environmental approvals that will accredit each state planning system to create a single EA and approval process for matters of MNES. The move towards a ‘one project, one assessment, one decision’ framework for environmental decision-making was one of the chief recommendations of the Productivity Commission in its Research Report ‘Major Project Development Assessment Processes’ (2013).141 Not surprisingly, this policy has attracted widespread criticism because the Commonwealth is effectively giving up its final veto over projects that will significantly impact on MNES. Nevertheless, the policy is proceeding. In October 2015 the Commonwealth announced it had delegated federal EA and approval powers to NSW Roads and Maritime Services (RMS) for certain projects under the EPBCA. This means that RMS will now self-assess and self-approve its own impacts on nationally threatened and migratory species for ‘small-scale’ activities under Pt 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA), without needing to refer such activities to the federal environment minister.

Ministerial declarations 6.35 The minister may declare that actions of specified classes that have been approved by the Commonwealth or a Commonwealth agency, in accordance with accredited management arrangements or accredited authorisation processes, do not require approval under Pt 9.142 The minister may only accredit management arrangements and authorisation processes if satisfied that they meet criteria prescribed by regulations,143 and that adequate assessment of actions that might impact on matters protected under Pt 3144 and approved in accordance with the plan have been, or will be, undertaken; and that those actions will not have unacceptable or unsustainable impacts on those matters.145 A proposed accreditation may be disallowed by either house of the federal parliament.146 A declaration may also be revoked by the minister.147 [page 200] 6.36 A declaration may only be made if it accords with the objects of the Act and meets the requirements prescribed by regulations.148 Declarations

and accreditations may only be made in respect of a world heritage property, national and Commonwealth heritage places, a Ramsar wetland, threatened species or ecological communities, or migratory species protected under the Act, if it is not inconsistent with Australia’s obligations under the relevant conventions; and will promote management of the properties, or promote the survival or enhance the conservation status of the species or communities, in accordance with the appropriate Australian management principles, recovery plan or threat abatement plan.149 These provisions are equivalent to the prerequisites for entering into a bilateral agreement in respect of these matters. Similar provisions are made for declarations in respect of actions to be taken under a specified bioregional plan.150 There are no current declarations in force. 6.37 An action of a class declared by the minister not to require assessment will also be exempt if the Commonwealth or Commonwealth agency assesses the action in a manner specified in a declaration.151 The minister may only make such a declaration if satisfied that assessment in the specified manner will include assessment of impacts the action may have on each matter protected by the controlling provisions, the specified manner of assessment meets any standards prescribed by regulations and, if the action requires approval, that the minister will receive enough information about the relevant impacts to enable an informed decision on whether to approve the taking of the action.152 There are currently no ministerial declarations for Australian government processes. Actions included in a class of actions declared in a conservation agreement ‘not to need approval under Pt 9’ are exempt from this process.153

Regional Forest Agreements 6.38 Operations undertaken in accordance with a Regional Forest Agreement (RFA)154 that are not in a world heritage area or Ramsar wetland are excluded from the assessment and approvals processes under the EPBCA.155 In Brown v Forestry Tasmania (No 4) (2006) 152 LGERA 146, the Federal Court interpreted the obligation to ‘protect’ priority species (rare and threatened species) contained in the Tasmanian RFA s 68 as remaining unfulfilled and that forestry operations in the area had not been, and may not be, carried out therefore in accordance with the RFA. Accordingly, logging operations, as actions within the meaning of the EPBCA, were not exempted by the provisions of s 38 of the Act. Subsequent to this decision the RFA s 68 was

[page 201] amended to state that the parties agreed that relevant management strategies in place protected rare and threatened species and communities. On appeal, the Full Court reversed the original decision (Forestry Tasmania v Brown (2007) 158 LGERA 191), the court holding that the amended version of the RFA s 68 was admissible on appeal and that in any case the new s 68 was merely clarification of the true meaning of the original clause; that the Agreement in effect afforded protection to priority species; and that the new s 68 did not deprive the Agreement of its character as a RFA, even if the original s 68 agreed to protect, whereas the new version agreed that protection was being effected through the management prescriptions already in place. Since the Tasmanian RFA was a RFA as defined by s 38 of the Act, it was therefore exempted from the EPBCA process and the court did not deem it necessary therefore to deal with the dispute raised in the lower court about the actual degree of protection afforded by the management prescriptions in the RFA to the species that were the subject of the original proceedings.156

Strategic assessments 6.39 It is commented in Chapter 9 that, theoretically, if the impact of government plans and policies is assessed at the outset, then the cumulative impacts of actions carried out under such plans can also be identified and assessed. Assessment of particular activities conducted under such plans need not then be as rigorous as might otherwise be the case, or need not be undertaken at all. Strategic assessment may, therefore, be viewed as potentially more efficient in assessing the generic characteristics of many different activities conducted under plans. Strategic assessments have the potential to improve certainty, reduce ‘green tape’ and costs and achieve better biodiversity outcomes through earlier and more strategic retention and enhancement of conservation areas.157 On the other hand, particular activities, which would otherwise need to be assessed on a project specific basis, should only be exempted from assessment if a strategic assessment has clearly already factored in such proposals in carrying out the strategic assessment. 6.40 The EPBCA allows the minister to agree with persons responsible for the adoption or implementation of plans, policies and programs, that strategic assessment should be made of the relevant impacts of actions that are controlled actions158 or would be if not otherwise exempted. Agreements may

also cover, at the request of a state or territory, other impacts (that is, not relevant impacts) in a state or territory. [page 202] 6.41 An agreement has to make provision for a number of factors:159 preparation of draft terms of reference for a report on likely impacts; opportunity for public comment on the draft terms of reference for a period of at least 28 days; finalisation of the terms of reference by the minister; preparation of a draft report on likely impacts; opportunity for public comment on the draft report for a period of at least 28 days; finalisation of the report and submission to the minister; making of recommendations by the minister to the person responsible for the policy, plan or program; and endorsement of the policy, plan or program by the minister, if satisfied that the report adequately addresses the impacts to which the agreement relates. 6.42 The outcomes of a strategic assessment will be used by the minister to determine the appropriate assessment approach for each individual action under a plan, policy or program.160 Endorsement of a strategic assessment process will give the minister the option of demanding a less onerous form of EA for an action carried out under such instruments.161 Endorsement of a policy, plan or program embodied in a management plan also allows the minister to declare, or make a bilateral agreement declaring, that actions approved in accordance with the management plan will not need approval under Pt 3 of the Act, although a range of criteria must be applied before making such a decision.162 6.43 The EPBCA now makes specific provision for the minister to approve the taking of an action or class of actions in accordance with an endorsed policy, plan or program without the need for further EA and approval;163 although conditions may still be applied, and the minister is still subject to the criteria stipulated for approving an action set out in the Act.164 The Act also makes provision for bioregional plans for Commonwealth areas and, with the cooperation of states and territories, for bioregions not

wholly within Commonwealth areas.165 Actions taken in accordance with a bioregional plan may not need approval under Pt 9 of the Act.166 On private land, the making of a conservation agreement with the Commonwealth may have a similar effect.167 [page 203] 6.44 Specific provision is made by the Act for the strategic assessment of Commonwealth fisheries.168 Actions that are subsequently taken under an accredited management plan for a fishery will not need further approval and will not therefore require EA.169

Controlled actions 6.45 Commonwealth EA applies to controlled actions;170 that is, those actions for which approval is required under Pt 3 of the Act.171

Controlled actions that are exempt from these provisions 6.46 Actions that would otherwise trigger the requirements for assessment and approval under the EPBCA (controlled actions) do not need assessment and approval if: conducted in accordance with a bilateral agreement that accredits a state management arrangement or authorisation process (first foreshadowed in the IGAE);172 undertaken in accordance with a ministerial declaration that accredits a Commonwealth management arrangement or authorisation process;173 undertaken in accordance with the zoning provisions of the Great Barrier Reef Marine Park Act 1975 (Cth) (GBRMPA);174 they are forestry operations undertaken in accordance with the RFAs process that are not part of a world heritage property or Ramsar wetland;175 the action is authorised by a facility installation permit issued under the Telecommunications Act 1997 (Cth);176 they are a lawful continuation of a use occurring immediately before commencement of the Act;177 or an action specifically authorised by Commonwealth, state or territory law before commencement of the Act that needed no further environmental authorisation to enable that action to be lawfully undertaken.178

[page 204] In Minister for Environment and Heritage v Greentree (No 2) [2004] FCA 741, in which a wheat farmer was sued under the Act for clearing part of a Ramsar wetland without authorisation, various agricultural pursuits, including clearing, were held to have satisfied the test of being uses that could be lawfully carried out under state planning laws. However, since the clearing itself had not obtained all relevant state authorisations, specifically under the Native Vegetation Conservation Act 1997 (NSW) (NVCA), the defence fell apart on this aspect of the test; the clearing was not therefore exempt from control under the EPBCA:179 they are exempted by the minister on the basis of national interest, defence or security or a national emergency;180 they are actions of a Commonwealth agency or employee that have been authorised by a government decision on which the minister’s advice has been sought;181 they are actions or a class of actions to be undertaken by a Commonwealth agency that have been declared by the minister not to need approval, where the minister is satisfied that the Commonwealth agency will comply with state or territory environment protection laws when undertaking the action or class of actions to which the declaration applies;182 they are actions that, if taken in a particular manner specified by the minister, would not have a significant impact and therefore would not fall within a controlling provision of the Act;183 they are actions declared by the minister not to need approval because the taking of the action is in accordance with a bioregional plan;184 and the action is included in a class of actions declared in a conservation agreement not to require approval.185 The reason for many of these exemptions is that some form of strategic assessment will usually be required before such an arrangement can be made. Therefore, such assessment will, theoretically, have adequately addressed the likely environmental impacts of such actions. [page 205] The minister may also apply an exemption to impacts on threatened species and communities and migratory species if satisfied the species has been introduced into the area covered by the exemption for the purpose of

contributing to its conservation; and that the impacts are incidental to, and not the purpose of, carrying out the activities.186

Environmental assessment of actions 6.47 If an action has been determined to be a controlled action, and it is not otherwise exempted from the EA processes, then the minister must choose one of the following methods of assessing the relevant impacts:187 an accredited assessment process; an assessment on referral information; an assessment on preliminary documentation; a public environment report (PER); an EIS; or a public inquiry. The relevant impacts are the impacts that the action may have on the matters protected by each provision of Pt 3 designated as a controlling provision for the action;188 in other words, those matters that the minister has determined warrant protection. The purpose of this is to focus Commonwealth attention on impacts on matters of national environmental significance. The Commonwealth will not assess all the impacts of an action unless so requested by a state.189

Controlled actions that are exempt from environmental assessment 6.48 Bilateral agreements for environmental assessment Proposed activities may fall within the jurisdiction of both Commonwealth and EIA requirements. In this event, cooperative arrangements entered into between the respective governments190 may recognise the legitimacy of each other’s assessment processes and thus the Commonwealth may be prepared to exempt a proposal from EA under the EPBCA to the extent that the activity will be satisfactorily assessed under state procedures. The Commonwealth minister will, however, still retain the [page 206] right to approve the activity for Commonwealth purposes. Bilateral agreements are discussed at 6.26.

6.49 Ministerial declarations The minister may declare that actions of specified classes that have been approved by the Commonwealth or specified Commonwealth agency, in accordance with an accredited management arrangement or an accredited authorisation process, do not require approval under Pt 9.191 Ministerial declarations are discussed further at 6.35.

Deciding on the appropriate method of assessment 6.50 The minister cannot decide on an appropriate approach until prescribed information has been received in the prescribed way from the proponent or person proposing to take the action.192 The information that must be provided, and how it must be provided, is set out in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth).193 Information is required, for example, about alternatives to the proposed action, techniques that will be used to mitigate adverse impacts and the environmental record of the proponent.194 If the action is to be taken in a state or territory and the controlling provision for the action is of national environmental significance, then the minister must consult with the appropriate state or territory minister before making a decision.195 Before making a decision the minister must consider:196 information given in referral of the proposal; other relevant information about the impacts; for example, information contained in strategic assessments; information provided by state and territory ministers; matters prescribed by the regulations; and guidelines setting out criteria for deciding what approach should be used. 6.51 The minister may also request more information before making a decision.197 A decision on which assessment approach to use must be made within 20 business days198 of deciding the action is a controlled action, or of receiving further information199 [page 207] about a referred proposal,200 unless the minister selects a different approach to that suggested by a state or territory minister. The minister and the proponent may also agree on an extended period201 and the period may be extended if the minister requests further information from the proponent.202

Once the decision is made, notice must be given to the proponent and appropriate state or territory minister if applicable and published in accordance with the Regulations.203 If the minister has determined that an accredited assessment process is to be used, the notices must specify the process.204 6.52 Assessment by accredited assessment process This option enables the minister to accredit, on a case-by-case basis, state or Commonwealth assessment processes for actions not covered by bilateral agreements or ministerial declarations. Such a process can only be accredited if it is to be carried out under a law of the Commonwealth, a state or territory, the process and the law meet any standards prescribed by the Regulations, relevant impacts will be adequately assessed and a report will be prepared that enables the minister to make an informed decision about whether to approve the action.205 6.53 Assessment on referral information The minister may choose this method of assessment only if the action meets the criteria prescribed in the Regulations.206 The secretary must then prepare a draft recommendation report advising whether the activity should be approved and, if so, any conditions that should be attached.207 The draft report will be published on the internet and the public invited to make comments within 10 business days.208 The report will then be finalised,209 and given to the minister together with copies of comments received.210 6.54 Assessment on preliminary documentation This approach may be chosen only if the minister is satisfied that this approach will enable him or her to make an informed decision whether or not to approve the taking of the action.211 If the minister has determined that this is the appropriate approach, then the designated proponent must be directed to publish, in accordance with the regulations specified, information given to the minister, and invite comments on that information or the action.212 The minister must be given a copy and summary of any comments [page 208] received,213 plus a document setting out information previously given to the minister, with any changes or additions needed to take account of the public comment.214 The secretary will then give to the minister a report relating to the action within 20 business days after receiving the relevant documentation.215

6.55 Public environment reports (PER) Where the minister decides that this should be the appropriate form of assessment to address the relevant impacts of the action, then written guidelines for the content of the draft report must be prepared within 20 days.216 The guidelines may comprise standard or tailored guidelines.217 The minister may invite anyone to comment on a draft of tailored guidelines.218 These guidelines should ensure that the report will enable the minister to make an informed decision whether or not to approve the proposal.219 They may also require information to be included about other impacts (for example, not relevant impacts) that have been requested by a state or territory minister to assist decision-making in relation to actions to be taken for purposes of trade or commerce, or to give effect to Australia’s international obligations.220 The purpose of this is to ensure that if a state or territory wishes to accredit the Commonwealth PER process, all environmental impacts that are relevant to state responsibilities can also be addressed.221 The designated proponent must then prepare a draft report about relevant and other impacts, obtain the minister’s approval (based on compliance with the guidelines) to advertise for public comment, and give the minister a copy of the comments received.222 The minister must specify not less than 20 business days for public comment.223 The designated proponent will then finalise the draft report, taking account of comments, and furnish the minister with the final report.224 Once accepted, the report must be published. Within 20 business days of the minister accepting the finalised report, the secretary will then furnish the minister with a report relating to the action.225 This too will be publicly available except for parts that relate to commercial confidentiality, Commonwealth security or advice to the minister. The matters to be addressed by a PER are prescribed by the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth).226 These include a detailed description of the proposed action, likely relevant impacts (including those that are likely to be unknown, unpredictable or irreversible), the likely effectiveness of [page 209] proposed safeguards and mitigation measures, and the environmental record of the proponent. This suggests a precautionary approach to decisionmaking;227 indeed, an approach that is required under s 391 of the Act. 6.56 Environmental impact statements (EIS) Where the minister determines that the submission of an EIS should be the preferred approach for assessing the environmental impacts of the proposal, then the minister and

the proponent will be required to adopt the same procedures as those required for preparation of a PER,228 and include the same information.229 6.57 Public inquiries Where the minister decides that the relevant impacts of a proposal should be addressed by an inquiry, then commissioners will be appointed to conduct the inquiry and report to the minister.230 The minister must specify the terms of reference for the inquiry, including relevant and other impacts.231 The terms of reference will be published, along with information given to the minister before the decision to appoint an inquiry is made (or alternatively notice that a draft PER or EIS has already been published).232 The commission may determine its own procedures,233 but unless in the public interest not to do so, hearings, submissions and evidence would normally be conducted in public or made publicly available.234 The report will be published.235

Assessment of Commonwealth actions that are not controlled actions 6.58 Where a Commonwealth agency or employee is considering authorising certain types of actions that may have a significant impact on the environment, but that are not controlled actions, the minister must be informed of the proposal.236 The minister may also request a referral. The types of actions specified are provision of foreign aid (the impact may be anywhere in the world), managing aircraft operations in airspace, adopting or implementing a major development plan for an airport and any other action prescribed by regulation. The EA provisions described in this chapter will then apply to consideration of the authorisation as if it were a controlled action, except that the minister will not be approving the authorisation, merely giving advice to the agency or employee. After considering the minister’s [page 210] advice, a report must be given to the minister indicating what action has been taken in relation to the minister’s advice, and, if effect was not given to some parts of that advice, why not.

Assessment by agreement with a state or territory of actions that are not controlled actions

6.59 The Commonwealth and state and territory ministers may make agreements for either strategic or action-based assessments (that do not relate to controlled actions)237 that relate to the activities of corporations, activities of trade or commerce, or implementation of external affairs obligations, in a state or territory.238 The agreement may specify either that assessment on preliminary documentation, by a PER, EIS or inquiry, is to apply to an action,239 or that strategic assessment is to be undertaken. The Commonwealth minister will then give a copy of the assessment or inquiry report240 to the state or territory minister and make recommendations relating to the action.241

The approvals process 6.60 Within 30 business days242 of receiving an assessment report or 20 days for an assessment on referral information or 40 business days following an inquiry report (or longer if the minister determines that more time is required to consider the comments of another minister,243 or has requested further information),244 the minister must decide whether to approve the taking of the controlled action.245 For approval purposes, an assessment report246 will include not only reports following the procedures for EAs described above,247 but also assessments conducted under bilateral agreements248 or specified in a declaration by the minister.249 [page 211] Before making a decision whether or not to approve the action, and on what conditions,250 the minister must invite any other minister who the minister believes has administrative responsibilities relating to the proposed action to comment on economic and social matters relating to the action.251 The minister must also invite comments from the person proposing to take action and the designated proponent;252 and may invite comments from the general public253 and seek advice from state ministers about methods that have been used to assess impacts on other matters.254

Criteria for decision-making under the Act 6.61 The minister must decide whether or not to approve, for the purposes of each controlling provision for a controlled action, the taking of the action.255 In Phosphate Resources Ltd v Minister for Environment, Heritage and Arts (No 2) (2008) 162 LGERA 154, it was held that the minister’s

obligation under s 130 was to decide whether or not to refuse approval for each of the controlling provisions, not just some of them; and that this error was not severable from the remainder of the decision because it was the scheme of the Act that the matter of approval or disapproval had to be resolved explicitly for each of the controlling provisions. 6.62 The minister must also consider256 matters relevant257 to any environmental values the minister determined needed to be protected under Pt 3 when deciding the action was a controlled action, and economic and social matters.258 This includes the consequences of the proposed action; though there is no obligation to take account of the consequences of any other action, present or anticipated. There is [page 212] no obligation to consider the cumulative impacts of the proposal.259 In considering these particular matters, the minister must take into account a wide range of other matters, including assessment reports, other relevant advice and comments and the principles of ESD.260 In Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) (2008) 162 LGERA 154, the minister’s decision refusing approval for an action was set aside for failure to take into account the EIS produced by the proponent. 6.63 For a wide range of decisions, the minister is also instructed to take account of261 the precautionary principle ‘to the extent that he or she can do so consistently with the other provisions of this Act’. These decisions include:262 whether an action is a controlled action; whether to approve the taking of an action; whether or not to grant permits of various kinds; and whether to make, adopt or vary various management and conservation plans, and recovery and threat abatement plans.263 6.64 For decisions involving protected areas, species and ecosystems, the Act specifies additional matters that must be taken into account, including matters relevant to international treaties and management.264 For example, in making a decision to approve an action that is likely to have a significant impact on a listed threatened species, the minister must have regard to any approved conservation advice for the species.265 In Tarkine National Coalition Incorporated v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694, this requirement was held to be such an

important feature of the scheme of the Act that it had to be directly considered and oblique references to the content of such advice would not suffice. It was irrelevant that most of the material in the advice was before the minister in other documents.266 [page 213] 6.65 The minister is also empowered to vary, suspend and revoke approvals, generally because of contravention of approvals, or the occurrence or likelihood of significant impacts that were not previously identified in the assessment process.267 6.66 These decision-making functions are amenable to scrutiny under principles of judicial review, which are described in Chapter 22.

Conditions of approval 6.67 In considering whether to grant approval for a proposed action, the minister may attach conditions to the approval.268 In deciding whether to attach a condition, the minister ‘must consider … any relevant conditions that have been imposed, or the Minister considers are likely to be imposed, under a law of a State …’.269 A failure by the minister to comply with this stipulation may render any resulting decision invalid.270 In Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2012] FCA 403 at [132] the court accepted that the ‘law’ referred to was a law of a state that was in force at the time at which the minister made the decision. 6.68 In Tarkine National Coalition Incorporated v Minister for the Environment [2014] FCA 468 the question arose whether the minister was bound to have regard to conditions imposed following a state tribunal hearing, but after the Commonwealth minister had made his decision. The court held the Minister was not required to take into account conditions that had neither been imposed nor framed at the date of his decision. The court said (at [53]): In my view s 134(4)(a) requires the Minister to have regard to conditions which have been imposed under State law and to conditions which have been framed but have yet to be imposed. In the case of conditions falling within the latter category the obligation will only arise if the Minister considers, on the material available to him or her, that it is likely that the process for imposition will be perfected under State law.

The court noted that the minister had rejected advice to await the tribunal’s decision prior to making his own decision. It seems therefore that the relevant provisions of the Act allow the minister to avoid any legal obligation to take

into account conditions that might be drafted by a state appeal body by the simple expedient of making his own decision before the appeal body makes its decision. 6.69 If the minister decides to issue a conditional approval, conditions must be necessary or convenient for protecting a matter, or protecting from the action any matter, protected by a provision of Pt 3 for which the approval has effect, or repairing or mitigating damage to such matters.271 The minister must also not act inconsistently with Australia’s international obligations for world heritage, Ramsar wetlands [page 214] and threatened and migratory species, or approve actions with respect to certain nuclear installations.272 6.70 Conditions may also specifically include requirements for deposits of security such as bonds; guarantees or cash deposits; insurance; periodic environmental auditing, monitoring, compliance with other Commonwealth, state or territory authorisations or other instruments; or specified industry standards or codes of practice; and implementation of management plans.273 In deciding whether to attach conditions to an approval, the minister must consider any relevant conditions already imposed under other laws,274 information provided by the proponent or person proposing to take the action275 and the desirability of ensuring that the condition represents a costeffective means of achieving the object of the condition.276 6.71 In essence the Act gives to the decision-maker broad powers ‘to deal with a residual risk from unexpected trends or events … imposed in accordance with the precautionary principle for the purpose of guarding against them by resort to monitoring and management’.277

Environmental audits 6.72 Conditions attached to approvals may require an environmental audit of the action to be carried out periodically by a person who can be regarded as being independent from any person whose taking of the action is approved; require the preparation, submission for approval by the minister, and implementation of a plan for managing the impacts of the approved action; and require specified environmental monitoring or testing to be carried out.278 Suspected contravention, or likely contravention, of an approval, or any indication that impacts are likely to be significantly greater than indicated in

the information available to the minister when the approval was granted, may be met by a demand that the holder of the licence conduct an environmental audit. The purpose of such an audit would be, generally, to evaluate the risks to the environment resulting from the [page 215] activities and an assessment of the holder’s capacity to comply with the approval.279 An independent environmental auditor must carry out the audit.280

Contravention of approvals 6.73 Contravention of conditions of an approval will attract civil penalties.281 To recover an amount, the minister may make application to the Federal Court within six years of the contravention for an order requiring the wrongdoer to pay the penalty.282 The court may determine the appropriate penalty, up to the relevant amount specified for the provision, after having had regard to all relevant matters. These include the nature and extent of the contravention and the loss or damage suffered, the circumstances of the contravention, and whether the person has previously engaged in similar conduct.283 Failure to obtain an approval, where one might be required, may also result in civil penalties being imposed. In Minister for Environment and Heritage v Greentree (No 3) (2004) 136 LGERA 89, penalties of $150,000 and $300,000 were imposed on two persons who contravened the Act by clearing part of a listed Ramsar wetland without permission. Sackville J indicated that in determining penalties under these provisions, reference to the similar concept in use under the Trade Practices Act 1974 (Cth) was appropriate; as well as the principles enunciated in relation to sentencing in criminal proceedings in Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 82 LGERA 21.284 A contravention of a civil penalty provision is not an offence.285 However, it will be an offence to recklessly contravene the conditions of an approval, and that contravention results or will result in a significant impact on the matter protected under Pt 3.286 No particular mental intent is required in relation to the impact; that is, the offence is one of strict liability.287 However, recklessness as to that fact is also a separate offence.288 Although a person may be subject to both civil and criminal proceedings for substantially the same conduct, the person cannot be made liable for a civil

penalty if criminal proceedings have commenced or if that person has already been convicted.289 [page 216] However, a person may subsequently be convicted after being made subject to a pecuniary penalty.290 Contraventions may also be publicised.291

Decision-making in practice 6.74 The latest report292 on the operation of the EPBCA for the period July 2011–June 2012 indicates that 412 new referrals were made under the Act. Of these, 132 were eventually determined to be controlled actions requiring assessment and approval under the Act, while a further 94 could proceed without approval if taken in a particular manner. One hundred and fifty-one referrals were determined not to be for controlled actions; and 75 actions were approved with conditions attached. Thirty-five per cent of referrals were determined to need EA.

Monitoring and Enforcement 6.75 Enforcement of conditional approvals issued under the EPBCA by the federal Environment Department has been criticised by the Commonwealth Auditor-General:293 … nearly 14 years after the enactment of the EPBC Act, Environment is yet to establish mature administrative arrangements to effectively discharge its regulatory responsibilities in relation to approved controlled actions. As a consequence, the assurance that the department has regarding proponents’ compliance with action approval conditions, which are designed to address the risks posed to MNES, is limited. In particular, Environment is not well placed to demonstrate that it is effectively targeting its compliance monitoring activities to the areas of greatest risk. The department is yet to: establish an effective compliance intelligence capability to collect, store and analyse compliance intelligence; and identify an appropriate set of MNES risk factors (such as the compliance history of proponents) against which approved controlled actions can be assessed and ranked. The absence of a sound risk-based approach has meant that compliance monitoring undertaken by the department has, generally, been insufficient to provide an appropriate level of assurance of proponents’ ongoing compliance with their conditions of approval. In terms of proponents’ obligations to submit material to the department, there were numerous plans and compliance returns found to be overdue for submission, with generally poor evidence retained demonstrating the department’s appropriate assessment of submitted plans and returns, particularly for assessments completed prior to 2013. The increasing workload on compliance monitoring staff over time has resulted in Environment adopting a generally passive approach to monitoring proponents’ compliance with most approval conditions. As a consequence, the department has limited awareness of the progress of many approved controlled actions and the elevated risks to MNES that may result

during particular stages of an action (for example, during ground clearance and construction). Environment has recently established

[page 217] a compliance monitoring strategy that has been designed to coordinate its various compliance activities. Environment’s passive approach has also been evident in its approach to the management of non-compliance. In many cases, instances of proponent non-compliance (mostly of a technical nature—such as, a missed deadline to submit a management plan) were either not identified by staff, or were identified but not referred for assessment and possible enforcement action. The failure to appropriately respond to identified non-compliance can: impact on the effectiveness of environmental safeguards; risk environmental damage; jeopardise the department’s ability to take future enforcement action; and harm the public’s confidence in the regulator. Also, in the absence of appropriate procedures, the department’s investigations into reported noncompliance with approval conditions were conducted inconsistently. Although documentation retained by Environment evidenced the enforcement decisions taken, there is scope to improve the department’s documentation of the reasons for decisions, including the consideration of relevant factors and the consistency of enforcement responses over time. The extent of the shortcomings in, and challenges facing, Environment’s regulation of approved controlled actions — particularly in relation to compliance monitoring — does not instil confidence that the environmental protection measures considered necessary as part of the approval of controlled actions have received sufficient oversight over an extended period of time. In this regard, Environment is working to improve its internal performance reporting arrangements to provide greater visibility of the compliance monitoring function to senior departmental managers. While Environment dedicated additional resources in 2007 to monitor and enforce EPBC Act compliance, effective arrangements to administer its regulatory responsibilities are yet to be established.294

The Department has since committed to improving its compliance and enforcement activities.295

1.

See generally McGrath, ‘Key Concepts of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)’ (2005) 22 EPLJ 20. See also Campbell, ‘Governance, Responsibility and the Market: Neo-liberalism and Aspects of the EPBCA’ (1999) 16 EPLJ 290; Ogle, ‘The EPBCA: How Workable Is It?’ (2000) 17 EPLJ 468; Scanlon and Dyson, ‘Will Practice Hinder Principle? Implementing the EPBC Act’ (2001) 18 EPLJ 14; Chapple, ‘The Environment Protection and Biodiversity Conservation Act 1999 (Cth); One Year Later’ (2001) 18 EPLJ 523; McGrath, ‘Applying the EPBCA: A Case Study of the Naturelink Cableway’ (2001/2) 7 (33) QEPR 123; McIntosh, ‘Why the EPBCA’s Referral, Assessment and Approval Process is Failing to Achieve its Environmental Objectives’ (2004) 21 EPLJ 288.

2.

The provisions of the Environment (Impact of Proposals) Act 1974 (Cth) (EPIP Act) were discussed in the 4th ed of this work, p 146 and following.

3.

See generally Fowler, ‘Environmental Impact Assessment: What Role for the Commonwealth? An Overview’ (1996) 13 EPLJ 246; Mould, ‘The Proposed Environment Protection and Biodiversity Conservation Act: The Role of the Commonwealth in Environmental Impact Assessment’ (1998) 15 EPLJ 275.

4.

Such a definition included the Reserve Bank (Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 at 521 per Gibbs J), but not the Loan Council (Tasmanian

Wilderness Society v Fraser (1981) 153 CLR 270). 5.

Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86. This additional requirement was derived from the prefatory words of the Environment Protection (Impact of Proposals) Act 1974 (Cth) s 5, which provide that: ‘The object of this Act is to ensure, to the greatest extent practicable, that matters affecting the environment to a significant extent are fully examined and taken into account’.

6.

Administrative Procedures, at 1.2.

7.

See Tasmanian Conservation Trust Inc v Minister for Resources (1995) 85 LGERA 296; Tasmanian Conservation Trust Inc v Minister for Resources (No 2) (1996) 90 LGERA 106. See also McDonald and Munchenberg, ‘Public Interest Environmental Litigation: Chipping Away at Procedural Obstacles’ (1995) 12 EPLJ 140; Munchenberg, ‘Amendments to Commonwealth EIA Procedures’ (1995) 12 EPLJ 235; Fleming, ‘Commonwealth Assessment of Forest Operations After Gunns (No 2)’ (1996) 13 EPLJ 309.

8.

See generally Macintosh, ‘Why the Environment Protection and Biodiversity Conservation Act’s Referral, Assessment and Approval Process is Failing to Achieve its Environmental Objectives’ (2004) 21 EPLJ 288; McGrath, ‘Key Concepts of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)’ (2005) 22 EPLJ 20; Macintosh and Wilkinson, ‘EPBC Act: A Five Year Assessment’, Australia Institute, Discussion Paper No 81, Canberra, 2005; McGrath, ‘Swirls in the Stream of Australian Environmental Law: Debate on the EPBC Act’ (2006) 23 EPLJ 165 and response by Macintosh and Wilkinson (2007) 24 EPLJ 81; Baird, ‘Public Interest Litigation and the Environment Protection and Biodiversity Conservation Act’ (2008) 25 EPLJ 410.

9.

See 6.5 and following.

10. See Parliamentary Standing Committee on the Environment ‘Streamlining Environmental Legislation: Inquiry into Streamlining Environmental Regulation, ‘Green Tape’, and One Stop Shops’, available at ; and the National Review of Environmental Regulation, which focuses on identifying unworkable, contradictory or incompatible regulation and seeking opportunities to harmonise and simplify regulations: see . 11. See 6.24. 12. See s 13. 13. Section 15B. National heritage became a matter of national environmental significance under the Act on 1 January 2004. The new system provides for the establishment of the National Heritage List, a Commonwealth Heritage List and a list of overseas places of historic significance to Australia; and protection of Australian government-owned or managed heritage places, including the development of heritage strategies and management plans: Pt 15 Divs 1A, 3A, Ch 5A. For places included in the National Heritage List, see ; for the Commonwealth Heritage List go to ; and for overseas places of historic significance to Australia go to . 14. See s 17. 15. Section 18. 16. Section 20. 17. See s 22. 18. See s 24. 19. Sections 24B and 24C. 20. Sections 24D and 24E.

21. Section 25A(1). 22. Defined in s 27 to exclude Commonwealth marine areas. 23. See s 5(5). 24. Part 13A. 25. Part 13 div 4. 26. Part 13, div 3. 27. Chapter 5B. 28. Section 337. 29. Chapter 5A. 30. Effectively, this means Commonwealth land, marine areas including the Australian Whale Sanctuary (Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 225) (that is, excluding coastal waters — see 5.29), and external territories (excluding Norfolk Island). Territory land in the Australian Capital Territory is also excluded: see s 525. 31. Section 28; and see Save the Ridge Inc v Commonwealth (2005) 142 LGERA 18 (action of National Capital Planning Authority could be an action for the purposes of s 28). 32. See Table 5.1 at 5.12. 33. See Gumley, ‘Calls for New Matters of National Environmental Significance’, National Environmental Law Review, Autumn 2005, at 43. 34. See . And see also Tridgell ‘Evaluating the Effectiveness of the Environment Protection and Biodiversity Conservation Act 1999 (Cth): 2008–2012’ (2013) 30 EPLJ 245. 35. The government’s response to the Review report may be accessed at . 36. Section 74A. 37. See Brown v Forestry Tasmania (No 4) [2006] FCA 1729. 38. Section 524. Section 524 not only excludes the final operative decision from the Act, but also decisions and related deliberative processes that might be made or undertaken in the course of reaching the final decision; see Save the Ridge Inc v Commonwealth (2005) 142 LGERA 18 (FCAFC). In Forestry Tasmania v Brown [2007] FCAFC 186, the question was raised, but not decided, whether a governmental grant of a right to enter Crown land to conduct logging operations was such an authorisation. 39. Section 524A. 40. Section 67. The prohibiting provisions are designated ‘controlling provisions’. 41. Section 67A. 42. Sections 11–25. The regulations may provide that a specified action is taken to be an action to which a specified regulatory provision (offence or civil penalty provision) applies: ss 25A and 28AA. Note, however, that liability for actions depends upon whether the significant impact results from a primary action or a secondary action that is not authorised by the primary actor: ss 25AA and 28AB. 43. Sections 26–27. 44. Section 28. 45. These provisions must be reviewed every five years: s 28A. 46. This is discussed further at 6.13.

47. Section 68. For the applicability of this provision to actions to be undertaken under a contract, subcontract or other arrangement, see s 68A. Requirements for referrals are set out in the Environment Protection and Biodiversity Conservation Regulations 2000 Pt 4. 48. Section 68. 49. Sections 69 and 71. 50. Section 70. Failure to comply with such a request would effectively mean that a person would not receive approval to conduct the activity, and if the activity were found to be a controlled activity, the person conducting the activity would be liable to pecuniary penalties and injunctive action. 51. Section 170C. Although the minister must publish notice of the withdrawal of the referral (s 170C(3)), failure to do so will not affect the validity of the referral: Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources [2007] FCA 1178; FCAFC 175. 52. Regulation 4.03. 53. Section 74A. 54. Sections 78A–78C; reg 4A.01. And see Western Australian Land Authority (Landcorp) v Minister for Sustainability, Environment, Water, Population and Communities [2012] FCA 226 (reconsideration of impacts of proposal on threatened species). 55. Section 78. 56. Section 74AA. 57. Section 156A. 58. Sections 156B and 156D. 59. Per Heerey J in Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 at [22]. 60. Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178 at [91]; [2007] FCAFC 175. 61. Section 74(1), (1A), (1B). 62. Section 74(2). 63. Section 74(3); this is subject to commercial-in-confidence exclusions: s 74(3A), (3B). 64. Krajniw v Brisbane City Council [2011] FCA 563 at [10]; Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419 at [92]. 65. Sections 67 and 75. 66. For further discussion on this issue, see 22.46. 67. Available at . 68. Departmental guidelines that purported to exempt farmers holding state permits to shoot flying foxes (a listed threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA)) were declared illegal in Humane Society International v Minister for Environment and Heritage (2003) 126 FCR 205, and the minister had to cause the guidelines to be amended. 69. Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) reg 2.10. The Australian Alps National Parks and Reserves were included in the National Heritage List by an instrument published in Gazette No. S237 on 7 November 2008. 70. This is not a precondition to making a valid decision, or jurisdictional fact, and is therefore not subject to objective review by the court: Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2008] FCAFC 3.

71. Booth v Bosworth (2001) 114 FCR 39 at 64; Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419 at [91–92]. 72. Fisher, ‘Dams, Irrigation and World Heritage Areas: The Nathan Dam Case’ (2004) 21 EPLJ 85; McGrath, ‘Minister Appeals Nathan Dam Case’ (2004) 21 EPLJ 90; Fisher, ‘The Meaning of Impacts: The Nathan Dam Case on Appeal’ (2004) 21 EPLJ 325. 73. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 12. 74. Section 75. 75. See also Tasmanian Conservation Trust Inc v Minister for Resources (No 2) (1996) 90 LGERA 106. The flow-on effects that the Nathan Dam Case might have on offshore petroleum and liquefied natural gas extraction are examined in Wulf, ‘Offshore Petroleum and the Environment Protection and Biodiversity Conservation Act 1999 (Cth): Consideration of “All Adverse Impacts”’ (2005) 22 EPLJ 296. 76. Section 527E. By contrast, in Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2012] FCA 403, the court held that the respondent did not have to consider the impacts the expansion of a uranium mine would have on the environment due to the export of uranium because the obligations of the minister extended only to the environment within Australia. Another effect of the creation of primary and secondary impacts is to limit liability for actions taken by third parties. A party taking the primary action will not be liable for impacts caused by a secondary action not taken at the direction or request of the primary actor: ss 25AA and 28AB. 77. Section 527E(1). 78. Section 527E(2). 79. See 6.38. 80. Forestry Tasmania v Brown [2007] FCAFC 186. 81. For further discussion of ‘climate litigation’ see also 17.36. 82. Greentree v Minister for Environment and Heritage [2005] FCAFC 128 at 48 per Kiefel J. 83. Section 76. 84. Section 74(3). 85. A controlling provision is a provision of the Act that prohibits the taking of an action (a controlled action) without approval: s 67. For example, s 12 of the Act prohibits an activity that will have a significant impact on world heritage values and has not been approved by the minister. This will be a controlling provision if the minister subjects such an action to assessment to determine whether it will have a significant impact and thus deem it to be a controlled action. 86. Section 75(2). Neither will this decision or an approval be affected by subsequent listings or changes to boundaries of areas: s 158A. 87. Sections 74B and 74C. 88. Section 74D. 89. Section 77A; and see Minister for the Environment, Heritage and the Arts v PGP Developments Pty Ltd [2010] FCA 58. 90. Section 78; and see 11.32. 91. Section 79. 92. Section 82; and see [6.47] for the relevant approaches. 93. Tarkine National Coalition Incorporated v Minister for the Environment [2014] FCA 468. 94. Section 77(1).

95. Section 77(2). 96. Section 67. 97. Section 77(4). 98. Section 77(1)(b). 99. Sections 75(3)–(7) and 78(5)–(7). 100. See 6. 45. 101. Botany Municipal Council v Federal Airports Corporation (1992) 109 ALR 321; Citizens Airport Environment Association Inc v Maritime Services Board (1993) 114 ALR 473; and see further 5.49 and following. 102. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 10 specifically declares that this Act ‘is not intended to exclude or limit the concurrent operation of any law of a State or Territory, except so far as the contrary intention appears’. 103. See 5.64. 104. Schedule 3 cl 1. 105. See also the Australian and New Zealand Environment and Conservation Council (ANZECC) Report, A National Approach to Environmental Impact Assessment in Australia, October, 1991. This report formed the basis of ANZECC’s input to the IGAE and became the foundation for Sch 3. 106. Paragraph 3.1.2 of the Administrative Procedures under the Environment (Impact of Proposals) Act 1974 (Cth) (EPIP Act) allowed for this. See also Administrative Review Council, Review of Commonwealth EIA Decisions, Discussion Paper, AGPS, 1993. 107. See 6.26. 108. See . 109. See McGrath, ‘Bilateral Agreements — Are They Enforceable?’ (2000) 17 EPLJ 485; Raff, ‘EPBCA and the Draft Bilateral Agreement with the State of Victoria’ (2000) 17 EPLJ 369. 110. Sections 44, 45, 48 and 50. 111. Defined in s 525 as including, for example, Commonwealth land and marine areas but excluding those marine areas vested in the states and the Northern Territory as a result of the Offshore Constitutional Settlement. 112. Section 49. 113. Booderee, Kakadu and Ulura-Kata Tjuta National Parks. 114. See 6.35. 115. Section 44. 116. Environment Protection and Biodiversity Conservation Regulations 2000 Pt 3. 117. Environment Protection and Biodiversity Conservation Regulations 2000 reg 3.06; Sch 1. 118. See . 119. Failure to comply with this provision does not necessarily mean that any subsequent decision should be set aside for invalidity. There is nothing in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) that would support such a conclusion; it is in any case always open to the minister to correct any deficiencies by seeking and obtaining additional information; Lansen v Minister for Environment and Heritage [2008] FCA 903; Tarkine National Coalition Incorporated v Minister for the Environment [2014] FCA 468. 120. Section 46.

121. Section 46. 122. For criteria applying to management plans for world heritage properties and national heritage places, see the Environment Protection and Biodiversity Conservation Regulations 2000 reg 2B.01. 123. Section 48A(2). 124. Assessment of relevant impacts, that is, those impacts on matters protected under Pt 3 of the Act, is not required if a bilateral agreement declares that actions of certain classes need not be assessed under Pt 8: see ss 82 and 83. 125. Section 48A(3). 126. Section 48A(1). 127. See . 128. Section 49A. 129. Sections 51–54. 130. Actions that relate to matters of national environmental significance prohibited by regulation unless otherwise approved. 131. Sections 55 and 56. 132. Sections 57–64. 133. Sections 65 and 65A. 134. Section 47. 135. Section 83. 136. Section 47(4). And on the grounds on which a minister might reject such a report, see Lansen v Minister for Environment and Heritage [2008] FCA 903. 137. For discussion of these proposals see ‘Australian Environmental Law Digest’ (newsletter of the National Environmental Law Association) August 2014. 138. Available at . 139. NSW Biodiversity Offsets Policy for Major Projects, Office of Environment and Heritage 2014; Fisheries NSW Policy and Guidelines for Fish Habitat Conservation and Management (Department of Trade and Investment, Regional Infrastructure and Services 2013; Rules established under section 127B of the Threatened Species Conservation Act 1995 (NSW) (‘Biobanking assessment methodology’). 140. Available at . 141. Available at . 142. Section 33. 143. To date, the only criteria specified are criteria for accreditation of management arrangements for Commonwealth managed fisheries: Environment Protection and Biodiversity Conservation Regulations 2000 reg 2A.01. 144. These are outlined in s 34. 145. Section 33(3). 146. Section 33(4)–(8). 147. Section 35.

148. Section 34A. 149. Sections 34B–34E. 150. Sections 37–37L. Requirements for a declaration are set out in the Environment Protection and Biodiversity Conservation Regulations 2000 reg 2A.03. 151. Section 84. 152. Section 84(3). 153. Sections 37M and 306A. On conservation agreements, see 12.38. 154. Defined in the Regional Forest Agreements Act 2002 (Cth). 155. Sections 38–42. 156. See also Church, ‘Fauna v Forestry: The Wielangta Forest Litigation (2009) 28(1) University of Tasmania Law Review 125. 157. For example, the urban development of land in Melbourne’s growth corridors is covered by a ‘strategic approval’ under Pt 10 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA). At time of writing, the development of some ‘precincts’ within the growth corridors has been finally approved, while some precincts still require final approval following submission of plans for management of biodiversity; see . 158. On controlled actions, see 6.45. 159. Section 146. For examples of strategic assessment agreements, see . 160. Section 87. 161. Methods of assessment are discussed at 6.47. 162. Sections 33, 46, 146 and 146A–146M. 163. Sections 146B and 146D. 164. Sections 146F–146M; and see 6.60. 165. Section 176. 166. Section 37A. 167. Sections 37M, 305 and 306A. 168. Part 10 Div 2. 169. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 153. 170. The term ‘action’ is discussed at 6.7. 171. See 6.60. 172. Sections 29–31 and 83. 173. Sections 32, 33 and 84. 174. Section 43. 175. Sections 38–42. The RFA process was subject to EA under the Environment (Impact of Proposals) Act 1974 (Cth) (EPIP Act), a process continued by the Environmental Reform (Consequential Provisions) Act 1999 (Cth). See further 6.38. 176. Schedule 3 cl 28. 177. Section 43A. This provision was raised (although found not relevant to the outcome of the proceedings) in Buzzacott v Minister for Sustainability, Environment, Water, Population and

Communities (No 2) [2012] FCA 403, where the applicant failed in a challenge to a decision allowing an expansion of the Olympic Dam copper, uranium, gold and silver mine. 178. Section 43B. 179. Desilting of an irrigation channel was, however, exempted under this provision. 180. Sections 28(3) and 158. The term ‘national interest’ is not defined but would presumably include defence, security and national emergency concerns. 181. Sections 159–164. Commonwealth agencies and employees must refer proposals in respect of certain actions to the environment minister that may have a significant impact on a MNES. These actions are: providing foreign aid; managing aircraft operations in airspace; adopting or implementing a major development plan for an airport; and any action that is set out in regulations for this purpose. Some actions authorised by permits under other Commonwealth legislation are set out in reg 4 of the Regulations. 182. Section 28(4), (5). 183. Section 77A. The initial referral may suggest alternatives: s 72(3). Failure to comply with the terms of the ‘particular manner’ notice may expose the applicant to civil penalties: see Minister for the Environment, Heritage and the Arts v PGP Developments Pty Ltd [2010] FCA 58 (failure to comply with requirements for sediment lagoons to protect Great Barrier Reef). 184. Sections 37 and 37A. 185. Section 37M. On conservation agreements, see 12.38. 186. Section 517A. 187. Section 87(1). 188. Section 82. 189. See ss 97(3), 102(3) and 107(4). 190. The Intergovernmental Agreement on the Environment 1992 Sch 3 cl 5 (signed by the Commonwealth, all states and territories, and the Local Government Association) provides for approval or accreditation of EIA processes. Where such approval or accreditation has been given the parties agree to give full faith and credit to the results of these processes when exercising their own responsibilities. However, this does not preclude the parties from taking into account factors not dealt with by those processes or from responding to unforeseen circumstances or flawed executions: see Intergovernmental Agreement on the Environment 1992 s 1.5 and Jarasius v Forestry Commission of New South Wales (No 1) (1988) 71 LGRA 79 (NSWLEC) (Commonwealth requirements for export of wood products did not meet stricter New South Wales requirements). 191. Section 33. A management arrangement must be ‘in operation’ under a law of the Commonwealth; an authorisation process must be ‘set out’ in a law of the Commonwealth under which actions are authorised: ss 2A, 32(c), 33(2) and 528. A management arrangement includes a management plan, regime or policy: s 528. 192. Sections 86 and 88. It is an offence to provide false or misleading information in order to secure an approval: s 489. A person in breach of s 489 may also be taken to have caused environmental damage as a result: see s 499(3). 193. Regulations 5.01–5.03. 194. Schedule 3 Pt 1. 195. Section 87(2). 196. Section 87(3), (6). 197. Section 89. 198. See s 156.

199. Section 89. 200. Section 88. 201. Section 88(5). 202. Sections 88(4) and 89. 203. Section 91. 204. Section 91(2). 205. Section 87(4); and see Blue Wedges Inc v Minister for Environment, Heritage and the Arts (2008) 157 LGERA 428. 206. Section 87(4A); reg 5.03A. 207. Section 93(2). 208. Section 93(a), (b). 209. Section 93(4). 210. Section 93(5). 211. Section 87(5). 212. Sections 95 and 95A. 213. Section 95B(1). 214. Section 95B(2). 215. Section 95C. 216. Section 96A(1), (4). 217. Sections 96B and 97. 218. Section 97(5). 219. Section 96A(3). 220. Section 97(3). 221. Section 97(3)(b). 222. Section 98(1). 223. Section 98(3). 224. Section 99. 225. Section 100. 226. Regulation 5.04, Sch 4. 227. Fisher, ‘Environmental Impact Assessment in Queensland’ (2001) 18 EPLJ 109 at 114, has remarked that ‘(m)uch weight is, therefore, placed upon the scientific and technological integrity of the information provided by these processes’. 228. Sections 102–105. 229. Regulation 5.02, Sch 4. 230. Section 107(1). 231. Section 107(3)–(5). Other impacts are those requested by a state or territory; see commentary on the PER at 6.55. 232. Section 108. 233. Section 109.

234. Section 110. 235. Section 122. 236. Sections 159–164. The Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Pt 6 prescribes what information is required to be submitted to the minister. Broadly, these encompass all details of the proposed action and any known likely impacts in the identified area. 237. Section 167. 238. Section 166. However, an agreement in fact may make provision for assessment in relation to any action in a territory. 239. Section 168. 240. Including a report provided to the minister under an agreement for strategic assessment under s 146. 241. Sections 169 and 170. 242. Section 130(1B). This period commences on the first business day after the day the minister receives the report. 243. Section 130(3) and (4). 244. Sections 130(5) and 132. A decision whether or not to request further information depends not on an objective assessment of the sufficiency of the information available to the minister but on the minister’s subjective assessment as to whether he or she has sufficient information to make an informed decision: Blue Wedges Inc v Minister for Environment, Heritage and the Arts (2008) 157 LGERA 428. And on the grounds on which the minister may call for further information, see Lansen v Minister for Environment and Heritage [2008] FCA 903 at [119]. 245. Section 130. An approval will not be affected by subsequent listings or changes to boundaries of areas: s 158A. 246. Section 130(2). 247. Section 87(4). 248. Section 47(4). 249. Section 84(3). 250. Sections 133 and 134. 251. Section 131(1)(a); the minister is entitled to rely on the recommendation of his or her department not to inform other ministers: Blue Wedges Inc v Minister for Environment, Heritage and the Arts (2008) 157 LGERA 428. The Environment Minister may consider these comments consistently with the principles of ecologically sustainable development (ESD); section 131(2)(b). In practice, if there is disagreement between ministers about a proposed approval, then the matter will be taken to the Prime Minister or Cabinet. 252. Section 131AA. 253. Section 131A. 254. Section 132A. 255. Section 130(1). 256. In considering whether to issue an approval, and on what conditions, the minister is specifically forbidden to consider any matters not required or permitted by the provisions of ss 136–140A and 136(5). This instruction will not presumably conflict with the requirements of s 134 that also require consideration of certain factors in deciding whether to attach a condition to an approval. 257. In Blue Wedges Inc v Minister for Environment, Heritage and the Arts (2008) 157 LGERA 428, which involved an approval for dredging in Port Phillip Bay in Victoria, the impacts of

maintenance dredging, impacts of oil spills and removal and disposal of toxic sediment were considered not to be relevant matters; but in any case even if they were, the minister had considered them. 258. Section 136. It is the minister’s function to determine which matters are relevant to the protected matters. There is no predetermined list of such matters; the section does not say, for example, ‘all matters relevant’ or ‘the matters relevant’: see Blue Wedges Inc v Minister for Environment, Heritage and the Arts (2008) 157 LGERA 428. 259. Tarkine National Coalition Incorporated v Minister for the Environment [2014] FCA 468; [2015] FCAFC 89. 260. Section 136(2–4). Principles of ecologically sustainable development are defined in s 3A; and see Chapter 8. 261. For discussion on the meaning of this obligation, see 22.63. 262. Section 391. 263. See Chapter 14. 264. Sections 137–140. 265. Section 139(1). ‘Approved conservation advice’ is: (a) statement that sets out: (i)

the grounds on which the species or community is eligible to be included in the category in which it is listed; and

(ii) the main factors that are the cause of it being so eligible; and (b) either: (i)

information about what could appropriately be done to stop the decline of, or support the recovery of, the species or community; or

(ii) a statement to the effect that there is nothing that could appropriately be done to stop the decline of, or support the recovery of, the species or community; s 266B(2). 266. For a case-note on this case see 30 National Environmental Law Review Issue 2013:3. 267. Sections 143–145A. 268. Section 134. 269. Section 134(4)(a). 270. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [32]. 271. Section 134(2). This power is of broad application, and extends to encompass significant additions or variations to the approved action, including ‘adaptive management’; see Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2012] FCA 403 at [58]; affirmed [2013] FCAFC 111. 272. Sections 137–140A. 273. Section 134(3). 274. Section 134(4)(a). In Lansen v Minister for Environment and Heritage [2008] FCA 903, it was held that adverting to a press release about conditions imposed on an approval by another state or territory did not fulfil the statutory duty to ‘consider any relevant conditions’ in s 134(4)(a) of the Act. In Lansen v Minister for Environment and Heritage [2008] FCAFC 189, a majority of the court made a declaration that the minister’s decision was therefore invalid and issued an order of certiorari to quash the decision. However, this requirement in s 134(4)(a) does not extend to

existing licences and approvals where the proposed action involves reliance on those licences or approvals. The conditions referred to are the conditions imposed on the action for which approval is sought; Buzzacott v Minister for Sustainability, Environment, Water, Populations and Communities [2013] FCAFC 111. 275. Failure to consider this information will not invalidate a decision: s 134(5). 276. Section 134(4). 277. Lawyers for Forests Inc v Minister for the Environment, Heritage and Arts (2009) 178 FCR 385 at [47]. 278. Section 134(3)(d)–(f). Three compliance audits were completed in 2009: see . 279. Section 458. 280. Section 459. Failure to deal with a matter directed by the minister, failure to take into account relevant documentation, concealment of information, and providing false or misleading statements in an audit report are all criminal offences, the latter three punishable by imprisonment for up to six months: ss 460 and 461. 281. Section 142. And see further Chapter 20. It is an offence to provide false or misleading information in response to a condition of an approval, or to an authorised officer: ss 490 and 491. 282. Sections 481 and 485. 283. Section 481(2)–(3). 284. See also Minister for the Environment, Heritage and the Arts v PGP Developments Pty Ltd [2010] FCA 58; and on civil penalties, see further Chapter 20. 285. Section 483. 286. Section 142A. 287. Section 142B. 288. Section 142A(3). 289. Sections 486A and 486B. 290. Section 486C. In this case there is a limitation on production of evidence in criminal proceedings that has already been used in civil penalty proceedings: s 486D. 291. Section 498. 292. See . 293. The Auditor-General Audit Report No.43 2013–14 Performance Audit: Managing Compliance with Environment Protection and Biodiversity Conservation Act 1999 Conditions of Approval. 294. The Auditor-General Audit Report Summary [14–18]. 295. Response available at . To view the current compliance and enforcement policy go to .

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Chapter 7 Environmental Legislation: Purpose, Structure and Content Introduction 7.1 The scope and content of environmental law falls largely within that category that lawyers term ‘public law’: law that is intended to reflect the wider public interest rather than merely the concerns of private individuals. The administrative structure, as well as the substantive provisions, of environmental law, are also contained in legislation because only specific legislation can effectively create and authorise government regulatory authorities and personnel to implement and enforce the law.1 Regulators have no inherent powers to do anything; their powers derive entirely from statutes. Environmental law is thus invariably tied up with the functions of the regulatory authorities. The function of the courts is to interpret these statutes and make sure that regulators only act within the boundaries of the legal authority conferred on them. The courts have traditionally kept a close eye on exercises of power by government authorities, imposing on decision-making standards of conduct that the courts assume parliament intended when those powers were conferred. This supervisory role of the courts, known in law as judicial review of administrative action, is not unique to environmental law, though decisionmaking under a wide range of environmental legislation has enriched this area of administrative law. Decisions of regulators may also sometimes be tested through appeals on the merits of decision-making to specialist environmental courts or administrative tribunals; that is, whether the decision was appropriate rather than whether it was lawful. Judicial review and merits appeals are dealt with further in Chapter 22. The purpose of this chapter is to consider how environmental policy is translated into law, and how regulators are empowered and instructed to implement policy directions and initiatives.

The purpose of environmental law 7.2 The purpose of law is to protect the social values enshrined in society and give legal effect to the policies of government. The dominant social value espoused by our [page 220] system of government is capitalism, so it is no surprise to find that law and policy relating to environmental management traditionally supports the economic utilisation of natural resources. This concentration on rights of exploitation, however, has meant that the law initially developed with little sense of environmental values, and with little appreciation of the necessity for sustainable management of land and other natural resources. Environmental law in Australia is therefore primarily legislation that is designed to give expression to the policies of government in relation to the sustainable management of all forms of natural resources. 7.3 Modern environmental law has the following priorities: to set up government regulatory structures for environmental management that apply to both private and public sectors. These include the creation of regulatory authorities, such as environment protection and resource management authorities, and the creation of specialist courts and tribunals to hear both merits appeals and enforce the law; to enable members of the public, in varying degrees, to take part in strategic planning and project evaluation that determines the use and management of resources and the environmental effects of exploitation. Requirements and procedures for public consultation are usually set out in legislation and accompanying regulations, although consultation may also occur as a result of political rather than legal influences; to invest in government regulators’ powers to determine how to manage natural resources and provide them with appropriate tools of management that enable them to control environmentally significant activities and encourage optimal environmental management. This toolkit commonly includes the ability to develop strategic policies and plans, determine standards, issue licences, and implement and enforce the law. It is supplemented, importantly, by the ability to offer economic or marketbased incentives to encourage better performance or the adoption of alternative strategies towards environmental objectives. Regulators may also need to take a ‘risk management’ approach, directing effort and funding to

priorities marked by assessments of where the greatest risks and most significant consequences lie.2 The implementation and extent of such powers may be to some extent guided by both the stated or implied objects of the legislation and by specified criteria for decision-making contained within it; to require persons proposing to carry on environmentally significant activities to seek permission from government regulators. Depending on the activity for which permission is sought, the permitting authority may be either the central government (for example, permits to emit pollution or access public fisheries), or local government (for example, development consent). Often, a number of permits for an activity are required from different regulatory authorities for different aspects of a proposal; [page 221] to require activities of potential environmental significance to be assessed before permission can be granted. This usually involves initial assessment to determine the environmental significance of a proposal, together with more detailed assessment of proposals declared or found to be of major environmental significance; to provide that non-compliance with the law will attract a range of administrative, criminal and civil sanctions, and to enable regulators and, to a more limited extent, members of the public, to enforce the law. Regulators may use administrative remedies, such as clean-up or stop orders, as well as institute both civil and criminal enforcement proceedings. Members of the public may be empowered also to commence civil and sometimes criminal proceedings to enforce breaches or threatened breaches of the law, against government, private individuals and corporations; and to enable the merits, rather than the legality, of decisions of government regulators to be challenged by members of the public. This right is normally accorded to persons seeking government licences, and to persons on whom administrative notices are served; however, so far as objectors to licence applications are concerned, such rights are generally restricted to the more significant proposals for development, though sometimes may extend to other activities of environmental significance, such as potential harm to threatened species.

The effect of National Competition Policy

7.4 Environmental law inevitably is intended to restrict and place conditional limitations on access to public natural resources, and to limit what the owners of private assets may do in relation to the use and exploitation of those assets. In other words, environmental regulation cuts across National Competition Policy,3 the stated aims of which are to deliver improved economic efficiency including the removal of regulatory impediments to productivity. The practical effect of the policy, as it impacts on environmental law, is to subject environmental regulation to intense scrutiny to determine whether it unduly restricts competition or otherwise compromises the aims of the policy. The Competition Principles Agreement4 states that the ‘guiding principle’ is that: … legislation should not restrict competition unless it can be demonstrated: (a) the benefits of the restriction to the community as a whole outweigh the costs; and (b) the objectives of the legislation can only be achieved by restricting competition.

When evaluating the benefits, costs and merits of policies or courses of action, legislation and policies relating to ecologically sustainable development (ESD), social welfare and equity, and efficient allocation of resources are all relevant considerations.5 [page 222] To date, National Competition Policy has impacted more on the processes adopted by regulation than the substance of it. Unnecessary duplication of regulatory controls for environmental assessment (EA) under federal and state law, for example, have largely, if lately, been addressed by bilateral agreements concluded under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA).6 Integrated processes for assessment of applications for development consent and approvals to access public natural resources have also been introduced in all jurisdictions.7 However, the content or substance of environmental controls does not seem to have been much affected. The benefits of, and need for, environmental regulation can usually be shown to outweigh the costs of implementation. 7.5 The danger, however, exists that outside the traditional concerns of environmental regulation, innovative and ground-breaking environmental policy initiatives could be suppressed because they are seen to be interfering in issues traditionally left to ‘the market’ to determine. A good example is product stewardship or extended producer responsibility (EPR),8 in which producers and suppliers take full responsibility for the reuse, recycling or disposal of their products after the product has effectively become no longer useful to consumers. Traditionally, it has been left to the market to design,

produce and market goods, passing on the costs to consumers and society to find alternative uses for, or dispose of, deceased products. Product stewardship effectively influences the design of products by making manufacturers think about how they are going to deal with a product for which they must now take full life-cycle responsibility. Not surprisingly, this novel form of market intervention has met resistance, not least when proposed regulation comes up for compulsory scrutiny as an impediment to competition.9 Nevertheless, product stewardship has survived regulatory review to become an integral part of the National Waste Strategy and legislated for by the Product Stewardship Act 2011 (Cth).10

Mutual recognition 7.6 The purpose of the Mutual Recognition Act 1992 (Cth) is ‘promoting the goal of freedom of movement of goods and service providers in a national market in Australia’.11 Basically, the principle of mutual recognition is that goods produced in one state should be able to be sold in another state without having to comply with differing standards for quality, performance or packaging.12 State-based environmental [page 223] regulation, for example the sort of EPR scheme discussed above, is capable of offending such principles, though the legislation explicitly states that laws directed at ‘minimising or regulating environmental pollution’ are exempted.13 So, for example, are laws relating to biodiversity protection, and other ‘environmental’ regulations,14 including compulsory deposits on beverage containers (a form of product stewardship scheme) operating in South Australia.15 The Northern Territory has also recently legislated to exempt a law dealing with beverage containers and plastic bags from the provisions of mutual recognition,16 but whether this will be covered by the exemptions remains uncertain. In practice, principles of mutual recognition do not seem to unduly impact on environmental regulation, although once again such principles will be taken into account in regulatory reviews.

The structure of environmental law 7.7 There are several hundred statutes in Australia that may be described as environmental legislation, governing a wide range of concerns and activities.

Yet the fundamental structure and content of environmental legislation is very similar, in all jurisdictions. The legislative scheme for environmental management may be broadly described as generally prohibiting any environmentally harmful activities that may have been permitted at common law, but then setting up an administrative scheme for the issue of licences to permit such activities under conditions. In other words, environmental law essentially restricts rather than totally prohibits environmentally damaging activities. There are not many activities for which it is not possible to apply for a licence, but there are some that are totally prohibited; for example, killing whales17 and fishing with driftnets.18 7.8 Environmental legislation commonly incorporates all or a combination of the following: a definitions or interpretation section (sometimes called a ‘dictionary’) defining key terms or concepts in the legislation. This is important because environmental legal terms often do not bear their normal, everyday meanings; a statement signifying to what extent the legislation may affect or interact with other legislation; a statement that the Crown is bound by the legislation; [page 224] a statement that the legislation is not to affect the availability of civil (common law) remedies; a statement of the objectives of the legislation; a statement of the objectives of the statutory authorities created by or operating under the legislation; a statement of the functions of those statutory authorities; functions include both powers conferred on those authorities and duties imposed on them; provisions that identify relevant criteria that govern the exercise of specific functions, such as a requirement that in the exercise of its functions an authority is to have regard to stipulated instruments of management or stipulated criteria, such as the principles of ESD; provisions that require or empower the creation of instruments of management or control by statutory authorities such as policies, plans,

guidelines, notices, negotiated agreements, protected areas and conditional licensing; provisions that spell out public rights to be involved in both strategic planning and project evaluation, ranging from rights to make submissions through to rights to enforce breaches by court-based action and question the merits of decision-making; and provisions for enforcement of the legislation. These include administrative orders issued by regulatory authorities, as well as court-based prosecutions and civil remedies.

Definitions in environmental law 7.9 Definitions are important because they set the context within which regulatory functions are carried out, and indicate to both regulators and the regulated community, as well as members of the public, the extent to which the regulatory net may be cast. The High Court has said that when construing a statute where a definition applies, the proper course is to read the words of the definition into the substantive enactment and then construe the substantive enactment.19 As a rule, concepts in environmental law are described very broadly. This is deliberate, the legislature preferring to embrace any activity that may require regulation and leaving it to the discretion of the regulators to decide to what extent an activity should be controlled, rather than see an activity that should be regulated fall foul of an overly technical definition. For example, the Protection of the Environment Operations Act 1997 (NSW) s 120 states baldly that it is an offence to pollute waters. There are two terms here that need interpreting: ‘pollute’ and ‘waters’. ‘Waters’ are defined to include both natural and artificial watercourses; ‘pollute’ is not specifically defined, but ‘water pollution’ is defined as a change in the physical, chemical or biological condition of waters. [page 225] In Electricity Commission (NSW) v Environment Protection Authority (1992) 28 NSWLR 494, the Court of Appeal acknowledged that, although these definitions were technically wide enough to capture such everyday activities as pouring chlorine into a domestic swimming pool, broad definitions like this had to be read in a common-sense fashion, according to the intention of parliament. This is an obligation, of course, that rebounds not

just on the courts but also on regulators implementing and enforcing legislation. 7.10 Sometimes the breadth of environmental definitions may surprise because they do not always bear their expected lay meanings; for example, who would expect fauna to be included in the definition of ‘land’? However, when talking of the protection of the natural resources of catchments, this makes sense.20 The golden rule therefore in interpreting a word or phrase in environmental legislation is to first check whether the statute defines the term. If it does not then, second, consider whether the term is intended to bear its ordinary, everyday meaning. The term may be explained by reference to an acceptable dictionary such as the Oxford English or Macquarie, both of which are endorsed by court practice.21 Third, if a dictionary definition does not assist in explaining the meaning of a word or phrase in context, then it is likely that common law concepts will be applied and that the word or phrase will be presumed to refer to concepts well understood at common law.22 7.11 Where the legislation does not define a word or phrase, then the court will adopt the ordinary everyday meaning, unless there is good reason why it should not. For example, many pieces of legislation in Australia use ‘significance’ as a trigger for various procedural requirements, such as the necessity to supply an environmental impact statement (EIS) for a proposed development that is ‘likely to significantly affect the environment’. In Oshlack v Richmond River Council (1993) 82 LGERA 222, Stein J (as he then was) said: A body of law has developed in relation to the interpretation … of the meaning of ‘likely’ and ‘significantly’ … ‘likely’ has been held to mean a ‘real chance or possibility’ and ‘significantly’ to mean ‘important’, ‘notable’, ‘weighty’ or ‘more than ordinary’.23

In Booth v Bosworth (2001) 114 FCR 39, Branson J defined ‘significant impact’ under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) as an impact that is ‘important, notable or of consequence having regard to its context or intensity’. In Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 134 LGERA 272, the Full Federal Court had to interpret the meaning of the ‘effects’ of ‘adverse impacts’ on matters for which the federal government was legally responsible under the EPBCA. The court held that ‘impacts’24 could readily [page 226] include the indirect consequences of acts done by persons other than the principal actor, while an ‘effect’ was anything sufficiently close to the action if,

without straining the language, it could be said that it was a consequence of the action. 7.12 In most cases, the grammatical meaning of a provision will give effect to the purpose of the legislation,25 but subject to the qualification that no legislation pursues its purposes at all costs.26 A grammatical or literal approach will therefore be the starting point for interpretation,27 but may be abandoned where such an interpretation does not conform to the legislative intent ascertained from the provisions of the statute as a whole.28 In the New South Wales Court of Appeal decision in Weston Aluminium Pty Ltd v Environment Protection Authority (2006) 148 LGERA 439, it was held, for example, that a literal approach could give way to a purposive approach where otherwise the result might be to subvert the legislative policy underlying the statutory scheme. Such subversion might result from an incomplete picture about how different statutes relate to one another, a problem quite prevalent in environmental law, with its variety of statutory regimes conferring different powers and responsibilities on different government agencies.29 On the other hand, where legislation has a multiplicity of purposes (economic, environmental, social), which may embrace many potentially conflicting objectives (such as timber production vis-à-vis conservation of biodiversity), the court will try to construe from the language used where the intended balance lies; and that is unlikely to support a construction that would promote the achievement of one single purpose above all others.30 7.13 The objective intention31 of the legislation is what the courts are trying to ascertain, and this may depend on the context. The concept of ‘significance’, for example, is not an abstract concept; it is a matter for judgment in the context of circumstances.32 A good example of context is the oscillating opinion of the Land and Environment Court in New South Wales whether a ‘designated development’33 included in the Environmental Planning and Assessment Regulation 2000 (NSW) [page 227] Sch 3 loses its character as designated if it only forms part of a greater development or was not the main purpose of the development in respect of which the application for development consent had been made.34 The Court of Appeal has finally held that it would be contrary to the intent of the legislation to deprive the development of such a categorisation in such circumstances.35 In Fell v Can Recycling (SA) Pty Ltd (2003) 133 LGERA 18, the question arose whether the South Australian controls over beverage containers36

applied to containers sold outside the state. The legislation provided that a collection depot had to accept delivery of empty containers provided the appropriate markings were displayed on the container. The court held that adopting a literal interpretation to this regulation that would include containers sold outside the state would not produce an absurdity in the context of the objects of the Act. Clearly, government disagreed, subsequently amending the legislation to make it an offence to claim a refund on containers not purchased within South Australia or a jurisdiction having comparable legislation.37 7.14 A strict grammatical approach to interpretation may not properly give effect to the purpose or object of the Act. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.38 A piece of legislation must be read as a whole and its provisions should be interpreted in a manner that enables them to operate consistently.39 Courts throughout Australia are likely therefore to abandon a literal rule to interpretation if applying such an approach would produce absurd, ambiguous or aberrant consequences, in particular having regard to the objects of the legislation.40 In environmental cases this is more likely to happen by applying an inappropriately narrow approach to definitions that, as explained above, are generally widely cast in environmental law. Definitions have to be read in context.41 For example, the meaning of the term ‘environment’ may itself be ambiguous. Courts have consistently adopted an approach to responsibilities in respect of the [page 228] environment that reject any narrow interpretation, particularly one that would limit environmental considerations to the site of a proposed activity rather than the wider environment.42 By contrast, in Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) LGERA 136, the court was faced with a definition of ‘environment’ that included ‘social surroundings’, which in turn encompassed economic surroundings.43 In preparing a report for the minister on the effects of dredging in Cockburn Sound, the Environmental Protection Authority (EPA) included an analysis of economic effects on the local workforce of curtailing dredging operations. In the event, the court held that private commercial interests were not within the purview of the legislation, and the EPA had acted improperly in including such factors in its report. In this instance a narrow interpretation furthered an

object of the legislation, which was to ensure that the minister received impartial advice on environmental impacts. 7.15 As explained in Chapter 2, if the meaning of a statutory provision is ambiguous or obscure then an Interpretation Act may give the courts powers to refer to extrinsic material; that is, material not contained within the statute itself.44 The material to which reference may be had would include parliamentary proceedings, official reports and international conventions that are relevant to interpreting the provision. In practice, judges like to interpret statutes by reference only to the statute itself;45 however, when the meaning of a text is doubtful, these external aids may become available.46 Strict rules about construing statutes do not necessarily apply to other instruments of management, such as planning instruments, which are not set out with strict adherence to legal formality and drafting. For example, in Katoomba Gospel Trust v Blue Mountains City Council (1993) 130 LGERA 266, the court said that in construing the provisions of a local environmental plan, interpretation should be approached with a view to achieving a practical outcome that was consistent with a reasonable interpretation using a common-sense approach. It has also been held that planning instruments should be interpreted wherever possible consistently with the language and purpose of all the provisions of such instruments.47 [page 229]

Different legislative regimes may apply to the same activity 7.16 The rapid growth of environmental law clearly raises the potential for an exercise of statutory powers under legislation that requires no or minimal consideration of environmental factors to come into conflict with the ability of an environmental regulator to apply instruments of management under other legislation that does enable protection. Although in law there is no inherent conflict in having numerous pieces of legislation apply to the same activity, questions may arise about how the various statutory provisions are intended to operate. Management powers of public authorities, particularly those contained in older legislation, may conflict with environmental protection constraints imposed under more recent enactments. For example, the power of road authorities and statutory undertakers to remove vegetation may conflict with

the powers of wildlife or other authorities to protect remnant native vegetation, protected plant species or ecosystems.48 Likewise, the powers of energy or fire authorities to ‘do all things necessary or convenient to be done for or in connection with or incidental to the performance of their statutory functions’, or in the exercise of statutory powers such as acting to secure health and safety by removing or burning off vegetation,49 could be interpreted to effectively override statutory powers to restrict damage to native vegetation or control pollution.50 7.17 This can obviously lead to problems where a provision for conservation or protection comes up against a provision allowing damage or destruction. However, such an approach could also mean that where a number of statutory authorities are given powers to control and license activities, without any legislative indication of priority, any one of them may effectively veto a project or activity. Many proposals for development, for example, require licensing not only from the appropriate local government authority, but also from state regulators such as environment protection and wildlife authorities (emissions of pollution and impacts on threatened species); and mining may not be able to go ahead without development consent first being issued.51 The starting point must be ‘the presumption that … laws made by the one legislature are intended to work together’.52 Since, in the absence of any particular statutory instruction, no particular licensing regime takes precedence over another, then if one licensing authority refuses a licence for its particular sphere of activity, this may effectively put an end to the project despite the fact that all other necessary licences may have been obtained — at least until a [page 230] successful outcome in a merits appeal orders amendment of conflicting licensing provisions.53 So, for example, general powers to remove vegetation for management purposes54 could be construed as being constrained by specific powers to protect,55 in the sense, not that there is a conflict between regimes, but that the legal requirements of all control authorities must be complied with. Thus, the conservation objective may effectively be used to exercise a power of veto over the proposed activity.56 Such an interpretation will be assisted where the environment protection provision is the later in time. However, even if in fact it is earlier in time, the courts can regard parliament as having been aware of

the earlier provisions and as not intending, therefore, to legislate so as to produce a conflict. On the other hand, a particular licensing regime may in fact forbid the issue of a licence under that regime, unless and until consent has been granted under some other licensing regime. For example, in New South Wales an environment protection licence for ‘controlled development’ cannot be issued unless development consent has been granted.57 7.18 In the absence of clear statutory guidance as to priority, the courts favour an interpretation that treats each piece of legislation as laying down simply another layer of control.58 There is a strong presumption that the legislature does not intend to contradict itself, so the courts will favour an interpretation that does not lead to conflict but allows legislation to operate in parallel. For example, in Rowe v Lindner [2006] SASC 176, the Full Court of the South Australian Supreme Court held that where two statutory regimes each dealt with the sustainability of water resources, a decision-maker should give adequate consideration to the extent to which the provisions of each regime comprehensively dealt with the protection of those resources, in the light of the overall objects of each regime, when assessing applications for development consent. Failure to do so might result in the decision-maker giving insufficient regard to the relevant objectives of one regime by favouring treatment of the application under the other regime. A similar issue arose in Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154, where the Victorian Civil and Administrative Tribunal was found to have given preferential treatment to a planning policy of limiting landfills without adequate regard to a State Environmental Protection Policy and the principle of Best Practice Environmental Management (BPEM). In Schaap v Tasmanian Water and [page 231] Sewerage Corporation (North West Region) Pty Ltd [2013] TASSC 17, the court held that there was no direct inconsistency between the pollution and dangerous goods legislation; the two statutes had different objectives and were intended to operate concurrently. This approach applies as much to potential conflicts between Commonwealth and state law59 as it does within a state jurisdiction.60 Only in the event of irreconcilable conflict will the courts have to determine the hierarchy of provisions and which must give way to the other. In the event, the court may have to reason that a Commonwealth law will override a state law,61 or that a later statutory provision must be intended to override an

earlier one,62 or that an explicit statutory power must be intended to have priority over a general provision.63 7.19 Where parliament wishes to give some indication as to how a piece of legislation will interact with other legislation, various techniques may be employed to deal with potential divisions of responsibility. For example: The legislation may simply exempt from its control, activities carried out under other statutory regimes; for example, controls on clearance of native vegetation may not apply to a wide range of activities permitted and carried out under other statutory regimes.64 The legislation may state that its provisions are in addition to and are not intended to derogate from provisions in other legislation. In New South Wales, for example, the Marine Pollution Act 2012 (NSW) is to be read and construed as being in addition to, and not in derogation of, any other law of the State.65 Similarly, the Fire and Emergency Services Act 2005 (SA) states that the provisions of that Act do not limit or derogate from the provisions of any other Act.66 Generally, Commonwealth laws, although they prevail to the extent of any inconsistency with state laws, by virtue of the Commonwealth Constitution s 109, will be expressed as not intended to exclude the operation of any law of a State or Territory, to the extent that that law is capable of operating concurrently with the Commonwealth law or to the extent that a contrary intention appears.67 The legislation may state that its provisions prevail to the extent of any inconsistencies in other legislation. Sometimes, environmental legislation is quite [page 232] explicit that it will take priority; for example, in relation to pollution control and ‘environmental harm’.68 The Marine Pollution Act 2012 (NSW) for example prevails, to the extent of any inconsistency, over provisions of the Protection of the Environment Operations Act 1997 (NSW) in its application to State waters.69 Where two or more pieces of legislation make similar statements, then a logical approach is that the later in time will prevail in the event of inconsistencies. This is because, in enacting the later piece of legislation, the legislature must be presumed to have been aware of the earlier piece of legislation, though obviously such an approach will depend upon the proper construction of the legislation in question. The legislation may state that its provisions are to apply notwithstanding any other law to the contrary, or despite the provisions of any other Act or

law.70 Powers connected with public safety and removal of hazards may be accorded such superiority; for example, the power under the Roads Act 1993 (NSW) s 88 to fell trees or other vegetation applies ‘despite any other Act or law to the contrary’, if necessary to carry out roadworks or remove a traffic hazard. In Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231 at [99], the court held that: … the words in s 88 ‘despite any other Act or law to the contrary’ suggest that s 88 exhaustively states the planning condition of power which it confers and is not subject to any other statutory planning requirements or restrictions. In that respect, s 88 contrasts starkly with cl 10 Sch 3 of the Road Management Act 2004 (Vic) which in an almost identical context expressly provides that it is subject to any other statutory requirements or restrictions.

Where two conflicting pieces of legislation both state that they apply despite any other law to the contrary, this dilemma may be resolved on the basis that an Act or law which prescribes additional conditions to the exercise of a power encroaches on its subject matter and is therefore an ‘Act or law to the contrary’.71 Legislation may accept that disputes may occur, particularly between public authorities having different interests in the use of land and other natural resources, and provide a dispute resolution procedure; for example, with respect to clearance of native vegetation around public power lines,72 or with respect to works to be conducted on public lands.73 [page 233] 7.20 In practice, given the wide range of legitimate legal interests in natural resources management and environment protection, statutory authorities responsible for the administration of legislation may have to cooperate in working out procedural arrangements so that they can all exercise their statutory powers and responsibilities in a satisfactory manner without undue conflict. This is often achieved by an interdepartmental memorandum of understanding (which may not be publicly available); less formally by regular meetings of chief executive officers of the relevant government authorities; or more formally by specifying the nature of the relationship in Regulations.74

The objects of legislation 7.21 It has become increasingly common for modern environment protection and natural resources legislation to specify the objects of the legislation. This effectively indicates to regulators and the regulated community, and interested observers, the general scope and purpose of the

legislation. The effect of this is not just cosmetic. Interpretation Acts throughout Australia commonly state that in the interpretation of a provision of legislation, a construction that would promote the purpose or object underlying the legislation shall be preferred to a construction that would not promote that purpose or object.75 Defining the objects of legislation is therefore more than simply an exercise in expressing the intent of the policy embodied in the legislation; it may guide the parameters of the exercise of legal powers under the legislation.76 For example, a proper understanding of the purpose of creating an offence is usually assisted by consideration of the objects of the legislation that creates it.77 This is so whether or not the objects are expressed in an objects clause or simply divined from the content of the Act and associated regulations or other legal instruments.78 The objects of legislation may therefore be a constraint on the exercise of statutory powers, in so far as they assist in the interpretation of those statutory powers. 7.22 It is common drafting technique now to specify the objects of legislation in an objects clause. Objects of legislation may be, and often are, expressed simply in terms that declare the objects of the legislation or statutory authorities created [page 234] by the legislation,79 but may go further and bind those authorities or individual decision-makers in some way to carrying out the principles expressed in such clauses.80 The specific functions under the legislation that further these objects may therefore be so intricately linked to or interrelated with the overarching principles embodied in an objects clause within the framework of the legislation, that a decision which does not pursue or seek to achieve those overall objectives might be declared legally invalid. For example, in Blue Mountains Conservation Society Inc v Director General of National Parks and Wildlife Service (2004) 133 LGERA 406, a ministerial approval for filming within a wilderness area of a national park was held invalid because the approval did not promote any management purpose or objective of park management; indeed, by excluding the public while filming was in progress, an objective of the park was effectively denied.81 It is important to appreciate in cases like this that the motives of the minister in allowing the activity are not relevant; the only question is whether the legislation confers the legal authority to make the decision.82 The National Parks and Wildlife Act 1974 (NSW) now states (s 2A(3)):

In carrying out functions under this Act, the Minister, the Director-General and the Service are to give effect to the following: (a) the objects of this Act, (b) the public interest in the protection of the values for which land is reserved under this Act and the appropriate management of those lands.

In Queensland, advancing the purpose of the Sustainable Planning Act 2009 (Qld) (seeking to achieve ecological sustainability) is a duty required of decision-makers.83 7.23 Interpreting the objects and purpose of legislation may also convince courts that common law rules or principles that would otherwise survive unless clearly abrogated by the legislation, must give way to the general purposive intent. In Graymarshall Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2010] NSWLEC 54, which concerned an order under the Native Vegetation Act 2003 (NSW) s 36 to produce information, the court held that a corporation could not resist such an order on the basis of a common law privilege against exposure to penalties. The general rule of statutory construction that a provision will be presumed not to abrogate common law rights in the absence of clear legislative intent was, said the judge, now considered to be of ‘minimal weight’, at least where the objective purpose and intent of the legislation justified such a departure. Similarly, common law rules of [page 235] natural justice or procedural fairness may be modified by the provisions of legislation that provide a clear purposive intent to do so: see 22.36. 7.24 Where objects are specified in legislation, then the most common instruction to statutory authorities exercising specific functions is that they should ‘have regard’ to them, or take them ‘into consideration’ or ‘into account’, in making decisions or exercising functions. Objects, however, sometimes go further than a mere statement of general intent to suggest some sort of responsibility to pursue or fulfil or, as above, give effect to, those objectives. For example, in South Australia, the requirement under the Environment Protection Act 199384 and the Natural Resources Management Act 200485 is that the minister, the court and all other bodies and persons concerned in the administration of the legislation ‘must have regard to, and seek to further’, the objects of the Act. In Queensland, the statutory requirement appears slightly stronger: a

person on whom functions or powers are conferred must perform those functions or exercise those powers ‘in the way that best achieves the object of this Act’.86 Tasmania’s Resource Management and Planning System contains perhaps an even stronger direction:87 It is the obligation of any person on whom a function is imposed or a power is conferred under this Act to perform the function or exercise the power in such a manner as to further the objectives set out in Schedule 1.

The objectives set out in Sch 1 include the promotion of sustainable development,88 as defined. The exact nature of this statutory obligation has not yet been legally confirmed. It would, however, seem to impose duties on decision-makers more onerous than the duty simply to ‘have regard to’ or ‘seek to further’ those statutory objectives. 7.25 The South Australian Water Resources Act 1997 s 6(2)(a) contains a clause requiring all administrators under the legislation to ‘act consistently with’ the object of the legislation. It has been commented that:89 … … a requirement to ‘act consistently with’ the Object, coupled with civil remedies available to ‘uninterested’ third parties (s 141) could be seen as a limiting factor in the scope of administrative discretion, increasing the risk of challenge of administrative decisions, and possibly engendering a corresponding lethargy in the bureaucracy. However, such a provision contributes significantly to the degree of accountability and transparency in decision-making under the Act.

[page 236] 7.26 Under the Fisheries Management Act 1994 (Cth) s 3, ‘the following objectives must be pursued by the minister in the administration of this Act and by the Australian Fisheries Management Authority (AFMA) in the performance of its functions’. The emphasis of the objectives is on efficient and cost-effective fisheries management and preserving the sustainability of fisheries resources. In Australian Fisheries Management Authority v P W Adams Pty Ltd (1995) 61 FCR 314, the Federal Court stated that these objectives were not so nebulous as to be incapable of sensible application, and that failure to pursue an objective would amount to a breach of duty. In Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 48 ALD 53, Drummond J added that the duty to pursue objectives impliedly amounted to an obligation to seek to achieve them. It is clear, however, that the weight or emphasis to be given to each objective lies within the power of the decision-maker, subject to the application of principles of judicial review.90 The Sustainable Planning Act 2009 (Qld) has a similar purpose that

imposes obligations on entities performing functions or exercising powers under the Act to ‘seek to achieve ecological sustainability’.91 In New South Wales, perhaps the strongest provisions in relation to the objects of legislation are contained in the Crown Lands Act 1989 (NSW) s 12, which states that the minister is ‘responsible for achieving the objects of this Act’; and in the National Parks and Wildlife Act 1974 (NSW) s 2A(2), which states that the objects of the Act ‘are to be achieved by applying the principles of ecologically sustainable development’. 7.27 Since legislation never tells us how to actually measure pursuit or achievement then it is up to the courts to give some practical meaning to such concepts. For example, principles of intergenerational equity92 have been held to be a relevant consideration in evaluating an application for consent to destroy or damage Aboriginal objects under the National Parks and Wildlife Act 1974 (NSW) s 90; the New South Wales Court of Appeal commenting that the objects clause in s 2A, above, ‘appears to be complementary to s 33 of the Interpretation Act 1987 which states that in the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule shall be preferred to a construction that would not promote that purpose or object’.93 In DirectorGeneral, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118 at [330], the court said that ‘an order to remedy a breach of the Parks Act should seek to achieve the objects of the Parks Act by applying the principles of ESD, including the polluter pays principle’. [page 237] The difficulties in enforcing such statutory instructions as legally binding duties should not be underestimated.94 However, it is at least arguable that instructions that require decision-makers to ‘seek to further’, ‘pursue’, ‘give effect to’ or ‘achieve’ objectives may be regarded as imposing stricter or more focused duties of compliance or achievement than a mere instruction to ‘have regard to’ those objectives. 7.28 Although criteria for decision-making are often indicated by the legislation (see 7.23), equally they are often not. To the extent to which criteria for making particular decisions are spelt out in legislation, then these may be referred broadly back to the objects of the legislation, though there may be no formal link. For example, in Carstens v Pittwater Council (1999) 111 LGERA 1, the Land and Environment Court determined that a mandatory requirement to have regard to the ‘public interest’ in the Environmental Planning and Assessment Act 1979 (NSW) s 79C must include

regard to the objects of the Act in s 5, which included principles of sustainable development; moreover, it was in the public interest that the objects should be given effect to (not just considered). The extent to which principles of ESD must be considered, and used, in decision-making is discussed in Chapter 8. On the other hand, specific powers conferred on decision-makers by legislation may also be interpreted to override more broadly expressed objectives. For example, in Rosemount Estates Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 1, the Land and Environment Court of New South Wales held unlawful a declaration of a state environmental planning policy by the minister, on the basis that it had not countenanced public opinion and had therefore not complied with the objects of the Environmental Planning and Assessment Act 1979 (NSW). The Court of Appeal95 reversed this decision because of the inclusion in the Act of specific powers that enabled the minister to effectively override the general object of public participation. 7.29 Duties cast on individuals to do or refrain from doing specific things may also be referable back to the general objects of the legislation. For example, the Catchment and Land Protection Act 1994 (Vic) contains clearly defined duties on both landowners and the secretary of the relevant government department to take all reasonable steps to avoid or to do specified things, which clearly, although not expressly stated, are referable back to the objects of the legislation contained in s 4, which encompass basically the sustainable and productive management of land and water resources on a catchment-wide basis.96 Similar duties are cast on lessees under the Pastoral Land Management and Conservation Act 1989 (SA),97 while under the Natural Resources Management Act 2004 (SA) ‘a person must act reasonably in relation to the management of [page 238] natural resources within the State’.98 The Threatened Species Conservation Act 1995 (NSW)99 casts limited duties on ministers and public authorities to take appropriate action to implement recovery plans and threat abatement plans, which are central to the objectives of protecting listed threatened species. Contravening the objects of the Act may also be a factor in sentencing following the successful prosecution of a criminal offence.100 7.30 The extent to which decision-making is guided or constrained by the objects of environmental legislation varies enormously between different

statutes and between jurisdictions. It is also apparent that legislation usually makes little attempt to incorporate performance standards for evaluating the success of policies, programs and decision-making as measured against the objectives of the legislation, and fails generally to require monitoring of the effects of such decision-making. While such evaluation may, of course, occur as part of a statutory instruction to review legislative initiatives and policies after a defined period of operation,101 and while the success or otherwise of policy design and assessment may be measured, to some extent, by environment protection authorities as part of the normal processes of selfevaluation, and by state of the environment reporting,102 the lack of focused legislative direction in this regard serves to emphasise the discretionary nature of decision-making in environmental law. The closest legislation probably comes to requiring monitoring of the environmental effects of decisionmaking is in granting discretionary power to decision-makers to incorporate monitoring or environmental auditing as a condition of a licence.103

Statutory functions 7.31 Functions encapsulate powers, authorities and duties.104 Regulators and the authorised officers of statutory authorities are given many and varied functions to perform in furtherance of statutory schemes for environmental management. [page 239] Statements of the statutory functions of authorities created by the legislation,105 like statements of objects, may indicate the boundaries of decision-making authority.

Mandatory or directory? 7.32 Statutory functions may be regarded as either mandatory or directory (discretionary). Statutory duties are commonly marked by such phrases in legislation as ‘the authority must’ or ‘shall’; discretions are often granted by use of the term ‘may’. For example, public authorities in New South Wales must have regard to the existence of critical habitat, and must not make decisions inconsistent with the provisions of a recovery plan.106 Statutory instructions which indicate that authorities ‘are’ to do various things may also be taken to be duties imposed on them. For example, public authorities in New South Wales are to take action to implement recovery plans.107 On the other hand, the Director-General of National Parks and Wildlife in New

South Wales may grant a licence to take threatened species,108 thus indicating a clear statutory intent to confer a discretion rather than a duty. The conferment of a duty imposes an obligation on an authority to perform that duty in accordance with any statutory instructions. These instructions may require certain factors to be taken into account, and may be guided by the framework established by the general objects of the legislation, but within that framework usually give the authority discretion to determine how best to perform the particular duty. Powers give discretion to the authority to determine whether action needs to be taken, or how best to perform a duty — they do not impose a duty to take action. More problematic are those provisions that empower the decision-maker to take an action if ‘in the opinion of’ the decision-maker (usually a minister) taking the action is necessary or beneficial for the purposes for which the power is given. Even though, for example, a minister ‘may’ take an action, if, ‘in the opinion of’ the minister, it is necessary to take the action’; in the context of the purposes of the legislation for which the action may be taken, if the minister forms the requisite opinion it may be interpreted that the minister is then under a legal duty to exercise the power and take the action.109 Decision-making under statutory schemes is subject to principles of ‘judicial review’ to determine whether duties or powers have been exercised in a manner that conforms with legal standards for decision-making.110 [page 240]

Criteria for the exercise of statutory functions 7.33 Criteria for decision-making under legislative powers are commonly expressed by way of directions to decision-makers contained in the legislation or accompanying regulations. Criteria may be of general application, in that they apply to all decision-making functions; or they may be specifically drawn up for particular purposes within the statutory scheme. One of the most common generic criteria for decision-making in environmental law would be the requirement to have regard to the principles of ESD.111 Generic criteria for decision-making, like general objectives, are unlikely to be interpreted as creating specific rights enforceable by individuals, though they may inform the legality of the exercise of particular statutory functions.112 It is, however, common for legislation to require decision-makers to apply specific criteria to the exercise of particular powers; for example, in relation to allocating rights,113 the content of management plans,114 licensing115 and

declaring protected areas.116 In New South Wales, the so-called ‘seven-part test’ has gained some notoriety as a management tool for assessing the significance of impacts of proposals on threatened species and ecosystems.117 Legislation may also expressly (though unusually) prohibit the consideration of factors other than those indicated by the legislation. For example, decision-makers may be restricted to environmental or nature conservation matters when making certain determinations, thus excluding economic, social or other factors.118 Requirements in legislation that decision-makers should ‘have regard to’ or ‘consider’ stipulated criteria are subject to principles of judicial review.119 [page 241]

Instruments of environmental management 7.34 An important purpose of legislative schemes for environmental management is to confer powers on regulatory authorities to create and use a wide range of management tools, relevant to the particular context and situation. Some of these tools may be mandated by the legislation, such as instruments of strategic management and EA of projects and activities; others are discretionary, and may be employed if and when the government regulator judges them appropriate; for example, licences to access natural resources or emit pollution, and market-based incentives such as offsets, tradeable permits and negotiated agreements or covenants.

Strategic or forward planning 7.35 If projects and activities that may have significant impacts on the environment are not to be made in a vacuum — that is, on an ad hoc basis with no thought given to any purposes or strategy that might lie behind such decision-making, or the context within which an approval will operate, or the cumulative effects of such approvals — then regulating decision-making by reference to some forward-thinking criteria is vital. This is the purpose of strategic planning: to place consideration of individual proposals within some legitimate framework that provides objectives for decision-making and a context within which proposals can be properly evaluated. Falling within this concept of forward planning are environmental planning policies and plans, environment protection policies (EPPs), planning for catchment and natural

resources management, and land or conservation management agreements or covenants with individual landowners. Environmental planning commonly encompasses state, local and sometimes regional policies or plans. The purpose of this tiered structure is to recognise that planning functions are commonly undertaken by a variety of central and local government entities, and to ensure that consistent planning controls are coordinated and integrated throughout the state. Environmental planning traditionally regulates development, but may also, for example, be used to control destruction of native vegetation,120 manage the impacts of exploitation of natural resources such as water, fisheries and forests,121 and guide the management of parks and reserves.122 Environment protection policies have similar functions in ensuring a coordinated statewide approach to important environmental management functions, commonly pollution and waste.123 It is usual for legislation to prohibit licensing or other approvals of activities that are not in accordance with the relevant management plan. [page 242] A strategic planning approach may also justify removal of regulatory burdens on individual projects that fall within the approach contemplated by the strategy. For example, in New South Wales processes for project evaluation of impacts on threatened species will not apply if the project is being carried out within a planning framework that has already taken a strategic approach to protection and management of threatened species.124 Under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), if the impacts of a controlled action have been already assessed under a strategic plan, policy or program, then the minister may take a less onerous approach to EA of an individual action, or indeed may declare that such actions do not need approval at all.125 Strategic environmental planning is discussed in more detail in Chapter 9.

Project evaluation and licensing 7.36 It is common in all natural resources management and environmental protection legislation to allow a competent authority to permit by licence activities that the legislation would otherwise make unlawful.126 The authority may then impose conditions under which activities may be carried out. Any breach of a licence, or carrying on an activity without a licence where one is required, is regarded as a criminal offence. The regulatory authorities

generally also have powers to modify, suspend and cancel licences where the proper management of the resource makes that necessary. Licensing is the backbone of environmental law. Licences are commonly required, for example, to develop land,127 emit pollution,128 take native and endangered wildlife,129 take commercial quantities of water and fish,130 and remove significant quantities of native vegetation.131 As a matter of law, conditions of licences must fairly and reasonably relate to the permitted activity (for example, be imposed for a proper planning or environment protection purpose),132 and be certain in their application and operation.133 It has, for example, been doubted whether a condition of developing a waste facility could encompass implementation of a waste minimisation strategy [page 243] in the relevant local government areas.134 No matter how desirable or justifiable such a condition might be, it does not necessarily have any particular nexus with the specific proposal seeking consent. Conditions must be fair and reasonable in the circumstances of the particular case.135 The permit and conditions are not two separate things; they are two separate components of a single process that are inextricably linked.136 Notice of consent must also accurately state the conditions upon which development consent has been granted; the notice operates as a precondition to the consent being operative.137 7.37 Before a licence can be issued, however, some form of assessment of environmental impacts must be made. Environmental assessment is almost universally required, not only in strategic planning138 of the type outlined above, but also in project evaluation to inform the decision-maker responsible for issuing a licence. Environmental assessment may take place at a number of levels, with varying degrees of detail; the responsibility for choosing an appropriate level of assessment for a particular project lies with the decisionmaker responsible for determining the application.139 It is said that ‘riskbased’ approaches can provide a defensible rationale for decision-making that allows the regulator to adjust the regulatory approach to different facilities in a clear, consistent and transparent way.140 The issue of a licence effectively provides a defence to conduct what might otherwise constitute a breach of the statutory scheme under which the licence is issued. However, a licence cannot affect common law rights or other statutory rights. Only legislation, not an administrative act such as granting a licence, can modify or remove other legal rights.141

It has been said that licence conditions that require regular monitoring of performance are an important part of a precautionary and adaptive management approach.142 [page 244]

Licences, property rights and market-based approaches 7.38 A statutory licence is a legal arrangement between the person entitled to utilise a resource and the statutory authority empowered to control access to that resource or to regulate a particular activity. Licensees are apt to view their entitlements under a statutory licence as conferring on them rights more akin to property than permissive interests. For example, a licensee with a right to take water to irrigate land, naturally is likely to regard that water entitlement as something that gives value to the property and may therefore agitate to have it regarded as effectively annexed to the property, or even to be able to sell the entitlement to a neighbour separate from the title to the property.143 Similarly, a person granted a licence to take commercial quantities of fish may wish to regard that entitlement as able to be traded quite separately from its attachment to any particular fishing boat or person.144 As indicated in Chapter 3, in effect, this is what modern water and fisheries licences now do: provide licence holders with a type of limited property right.145 In Harper v Minister of Sea Fisheries [1989] HCA 47 at [2], Mason, Deane and Gaudron JJ described the statutory fishing licence as: an entitlement of a new kind created as part of a system for preserving a limited public natural resource in a society which is coming to recognise that, in so far as such resources are concerned, to fail to protect may destroy, and to preserve the right of everyone to take what he or she will may eventually deprive that right of all content.

7.39 Another reason often given for conferment of limited forms of property rights on licence holders is that public regulation alone is not likely to generate enough incentive on the part of licensees to properly manage the resource, while private, unregulated control has proved not to be enough in the past to ensure sustainable management in the face of ignorance or wilful malpractice. A return to some form of private ownership of public resources, underpinned by strong statutory management requirements, is argued as having the potential to give much-needed incentives to the exploiters of natural resources to take more responsibility for, and interest in, the

sustainable use and management of those resources. For example, fishermen may now be given not just a licence to take commercial quantities of fish from public fisheries, but a tradeable share in the value of that fishery.146 Tradability, in fact, is seen as the prime incentive that will ensure that scarce resources are put to their best and most economic use. This policy, however, also recognises that ‘the market’ cannot go it alone in providing acceptable EPPs, and economic incentives will need to be underpinned by regulatory instruments that provide for appropriate natural resources management. For example, water trading is [page 245] underpinned by the necessity to determine ‘environmental flows’; that is, minimum requirements for maintaining aquatic ecosystems.147 Carbon emissions trading is dependent on eligible carbon abatement.148 The creation of new forms of property rights is therefore invariably subject to strong regulatory powers for management, including that the transfer of such property interests may require permission from the regulator.

Market-based instruments 7.40 In practice, it is essential that regulators have access to the widest possible range of management tools from which they can select the appropriate response to any particular problem. The introduction of ‘improved valuation, pricing and incentive mechanisms’ is one of the cornerstones of ESD, both internationally and in domestic law and policy.149 The trading mechanisms devised under the Kyoto Protocol are a good example of this concept finding expression in international policy for reduction of greenhouse gases in the atmosphere.150 Domestic legislation often does little more than adopt a regulatory regime based on prohibition, licensing and enforcement — traditional ‘command and control’ regulation. Modern environmental and natural resources legislation, however, focuses more on complementing regulatory approaches with economic incentives, to encourage licensees and others to go ‘beyond compliance’ to voluntarily continue to improve their environmental performance, and to achieve outcomes for environmental management that might not otherwise be attainable under a strict regulatory scenario.151 The real disadvantage of concentrating purely on licensing regimes to manage the environment is that licences offer no real incentives to do better

than the licence allows, unless other incentives are at work. Market-based approaches are promoted as having the capacity to allocate resources in a cost-effective manner while still maintaining environmental quality. It is arguable, however, whether ‘the market’ alone can really drive sustainable allocation of resources without a strong regulatory underpinning. Government forays into devising economic instruments for environmental management add to, rather than detract from, the tools available to regulators. 7.41 Economic incentives can introduce both a ‘sticks’ approach — that is, penalise certain behaviour — as well as provide ‘carrots’ for better performance. An example of a sticks approach, which in a sense revalues environmental resources and introduces both pricing and incentive mechanisms, would be load-based licensing for pollution, described at 15.72. In essence, the more toxic a pollution load on the environment, the more the polluter will be required to pay for rights of emission. The incentive here is to clean up the pollution load, or emit less, in order to reduce the fees payable. [page 246] An example of the carrots approach is the provision of funding for private landowners as an incentive to enter into property agreements and covenants: see 7.46. 7.42 Currently, the most commonly used incentive-based approach is the property agreement or conservation covenant. However, modern environment policy is introducing others;152 for example, tradeable permits, environmental and biodiversity offsets (the ability to offset environmental or biodiversity ‘losses’ against benefits elsewhere), and property planning that once endorsed by government delivers less regulation for desired economic activities (for example, in clearance of native vegetation).153 Encouragement and promotion of more sustainable use of resources is the declared intent of a number of more recent policy initiatives, including water154 and carbon trading,155 and energy efficiency schemes.156 7.43 A tradeable emissions scheme has been operating successfully for some years with respect to saline emissions into the Hunter River in New South Wales,157 while ‘cap and trade’ become a central feature of efforts to tackle emissions of greenhouse gases under the (now repealed) clean energy legislation. Green offsets158 may also been used in devising responses to management of pollution. More controversially, they are also being used to manage impacts on biodiversity from clearing of native vegetation associated with urban and

coastal development, and broad-scale agricultural pursuits.159 The risk is that if biodiversity and ecosystems are not valued appropriately, there may be inadequate appreciation of the values that may be lost in using offset schemes.160 7.44 Environmental services161 — for example, the services provided by trees and forests to filtration of rain water, prevention of soil erosion, carbon sequestration and provision of ecosystems — may be encouraged by government incentives such as EcoTender162 in Victoria, which pays landholders to manage land and water resources, mainly by retention and rehabilitation of native vegetation, in ways that provide environmental improvements. [page 247] A good example of reducing the regulatory burden consequent on the uptake of environmental incentives is the scheme in New South Wales for exempting clearance of native vegetation from processes associated with assessment of impacts on threatened species if a property management plan has been approved by the appropriate regulator.163 7.45 Such incentive-based approaches must be supported by legislation because they involve regulatory power and that can only be conferred by statute; however, they may not be specifically or easily identified in legislation. General concepts such as offsets may be identified more by reference to government policy documents and by general powers in legislation that enable regulators to impose whatever conditions on licences they believe are suitable for managing environmental impacts,164 though it is becoming more common to specify in legislation the sorts of market-based instruments that may be used.165

Property agreements and covenants 7.46 A property agreement or covenant166 is an arrangement between a landowner and a regulator whereby, in return for some financial or regulatory incentive, the landowner agrees to carry out on the property activities for environmental management that deliver the objectives of the regulator. The difference between an agreement and a covenant is basically that a covenant will bind future owners of the land to performing the terms of the covenant, while an agreement will only bind the original parties. From an environmental viewpoint, therefore, covenants are advantageous because

long-term protection will not simply depend on the identity of the landowner.167 This strict distinction is not, however, always honoured by the terminology adopted by statutory schemes, which must be scrutinised carefully to see whether they bind future purchasers. Indications that this is the intention are displayed, for example, by provisions which provide that the agreement ‘runs with the land’ or that successors of the burdened party will be bound by the agreement,168 and provisions that provide for registration of the arrangement on the title to the property;169 this would not be necessary if the arrangement were a purely personal one. Neither can such agreements [page 248] be said to faithfully reflect common law concepts of a contractual arrangement, although agreements are generally legally binding.170 7.47 Property agreements are usually made between a landowner and the appropriate regulator; for example, minister,171 heritage council,172 national parks and wildlife service,173 or catchment management authority.174 However, National Trusts, local councils and conservation bodies may also be empowered by legislation to enter into covenants with private landowners to restrict the future use and development of land so as to preserve features of natural or cultural heritage.175 7.48 While such arrangements are now a common feature of many statutory schemes for protection of natural and cultural resources, the concept itself has been borrowed from, and the structure heavily influenced by, the common law.176 Indeed, one of the purposes of legislative schemes is to avoid the restrictions inherent in the common law, particularly the rule that positive obligations, or burdens, of management could not be created by way of common law covenants. In practice, statutory property agreements, howsoever described,177 are used extensively by regulators to achieve ‘win–win’ natural resources management or heritage protection outcomes, where both regulator and regulated achieve their objectives or receive benefits under such schemes. Although some form of government financial assistance for property management, for example by way of direct grants or relief from rates and taxes, is often a primary motivation for landowners entering into such arrangements, the ‘carrot’ may also include relief from regulatory requirements. In New South Wales, for example, clearing under an approved Property

Vegetation Plan will exempt the landowner and successors in title from any requirement to obtain development consent for such activities.178 Sustainability covenants under the Environment Protection Act 1970 (Vic),179 which encourage efficiency in the [page 249] use of resources and reduction of ecological impacts, go even further in fostering partnerships for environmental innovation between regulator and regulated, linked more to industry and businesses than property.180 The advantages of entering into such agreements are said to include:181 improved long-term sustainability and increased profitability of individual companies and whole industries; reduced potential for restrictions imposed by regulation; opportunity for competitive advantage through product and service differentiation on the basis of environmental characteristics; potential use of a covenant to overcome environmentally based trade barriers; and statutory recognition of environmental leadership in efforts to achieve resource use efficiencies and to reduce the ecological impacts of commercial activities. 7.49 Some local councils are also beginning to experiment with the use of these covenants for environmental protection by including them in conditions of development consent; for example, for the production of and compliance with biodiversity or habitat management plans, and to protect areas from unnecessary vegetation clearing and other activities that may impact on environmental assets. In Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48, for example, it was accepted that a registered public positive covenant was appropriate to secure the performance of requirements under a Biodiversity Management Plan. 7.50 Another innovative use of property agreements in New South Wales has been in the context of court proceedings, as a vehicle to persuade landowners to protect native vegetation following breaches of clearance controls, in the expectation that the court would recognise the adoption of the voluntary agreement as a form of recompense for the illegal clearing; in other words, treat the entry into the agreement as a mitigating factor, and thus impose lighter penalties for the breach.182 7.51 Covenants are subject to modification or removal, either under the statute under which they are created (for example, by agreement between the parties), by exercise of powers under general property legislation where a covenant has effectively become redundant or obsolete, or the continued

existence of the covenant is impeding reasonable use of the burdened land without securing any practical benefits;183 or under planning legislation, where a covenant prevents the application of desirable planning controls or development.184 Although covenants imposed to protect environmental values would generally seek to restrict development, since protection of those values [page 250] is recognised as a legitimate planning consideration then it is envisaged that, although conflict could arise, environmental values would be dealt with sympathetically in such an application for discharge or modification of a covenant.

Creating protected areas 7.52 Reserving land for biodiversity and ecosystems conservation, and for heritage protection, is a common device for conservation and management, which can be either permanent or temporary depending on management imperatives. Reservations are commonly authorised, for example, under national parks, wildlife, forestry, Crown lands, heritage and fisheries legislation.185 Such reservations normally cover only public land, unless agreement can be reached with a private landowner.186 For privately owned land, conservation or property agreements, discussed above, are likely to achieve a more satisfactory negotiated solution. Management plans are generally required to be prepared and implemented following reservation.187

Public participation in environmental management 7.53 If governments have learned anything over the years,188 it is that allowing the public to participate in policymaking before decisions are taken can save a lot of political anguish later on. It is also likely to be more productive of agency resources to involve the public before significant decisions are made, rather than spend time and energy afterwards fighting numerous bushfires and amending decisions. Consequently, Australian environmental legislation is quite generous in the ability it gives for ordinary members of the public as well as specific users and interest groups to participate in strategic policy development. Today, virtually no important policies for natural resources management are put into place without wide

distribution of policy proposals, extensive advertising for public submissions, and often public hearings. Indeed, legislation often demands it. The right to engage in legal challenges to decision-making, and to question the quality of decisions by way of merits appeals, also gives important opportunities for public participation once decisions have been made.189 7.54 The courts traditionally protect opportunities for public participation quite jealously. Procedural irregularities of any significance are likely to lead to a decision being declared invalid.190 As early as 1973, the High Court stressed in Scurr v Brisbane City Council (1973) 133 CLR 242 that provisions enabling public participation not only avail the general public but equally importantly are also a means of heightening the quality of decision-making by exposing decision-makers to additional information and viewpoints to which they might otherwise not have had regard. [page 251] As decision-making becomes increasingly focused, however, on particular proposals for development or utilisation of resources, so opportunities for public involvement become increasingly channelled towards a formal challenge of the licensing of such proposals in a court or tribunal setting. As this channelling takes place, so the opportunities for participation become more restricted. Opportunities for participation in strategic planning and EA of applications for development are detailed in Chapters 9–11; and opportunities for engaging in enforcement processes and merits appeals are discussed in Chapters 19–22.

Whole-of-government approaches to environmental management 7.55 A major and perhaps the most significant difficulty faced by government managers of natural resources today is the tendency of governments still to react to perceived problems rather than plan ahead in a comprehensive, coordinated and integrated way. For example, when pollution was identified as a problem, governments responded by creating a regulator and giving it statutory powers to control pollution. The same reaction has been apparent in responses to protection of wildlife and management of natural resources such as water, fisheries, minerals and forests. The result has been a plethora of legislation concentrating on specific environmental problems and management of specific resources, coupled with the creation of

numerous agencies of government responsible for administering that legislation. 7.56 In reality, however, most environmental problems and resource management issues fall across, and sometimes outside, the jurisdictions of a number of government agencies, and solutions that call for whole-ofgovernment responses have been traditionally difficult to achieve because of the splintered way in which government administration has allocated legal responsibilities, budgets and human and other resources. The result is that although an agency such as an EPA is often viewed by the general public as having, because of its title, the ability to protect the environment, the reality is that no single government agency has that capacity. Yet modern natural resources management issues, such as catchment protection, water allocation and fisheries management, inevitably demand at least a coordinated response from government based on a recognition that many of the influences that impact on the problem fall outside the jurisdiction of any one agency to manage. For example, commercial fisheries in coastal waters or estuaries may be managed by state fisheries authorities, but many of the influences that impact on those fisheries — for example, subdivision and development of land adjacent to waters, agricultural pursuits impacting on water quality, and road and bridge building across waterways — lie outside the jurisdictional authority of fisheries officers. Estuaries are inevitably affected by activities that take place higher up the catchment: activities that are managed by local and state authorities responsible for activities as diverse as road and bridge construction, forestry, public works, irrigation, sewerage, water allocation, agriculture, subdivision and all forms of development. [page 252] Effectively managing a catchment therefore demands at the very least a whole-of-government coordinated approach that has traditionally been lacking in our jurisdictional-based schemes for natural resources management. Similarly, allocation of environmental responsibilities by drawing lines on maps, which is the way local government responsibilities are conferred, will not work either. A geographic approach to allocation of responsibilities fails to recognise how ecosystems actually perform. 7.57 The greatest challenge facing governments in the years ahead will undoubtedly be to devise institutional arrangements that can deliver timely and effective whole-of-government approaches to the pressing environmental problems of today, such as loss of native vegetation and biodiversity, stressed inland waterways and estuaries, dryland salinity, and diffuse sources of

pollution — not to mention climate change. Many of these issues require coordinated and integrated approaches, involving federal and state governments, to determine national not just state-based approaches. There are welcome signs that governments are now starting to take up this challenge. At a national level, the national policies and strategies referred to in Chapter 5191 acknowledge the need for coordinated responses to issues of real national significance. The revised Murray–Darling Basin Agreement192 is a good example of the recognition that management of significant resources must be carried out in a coordinated and integrated fashion involving affected riparian states and the Commonwealth. At state level, the creation, for example, of catchment management authorities193 in New South Wales, the membership of which is based on expertise rather than stakeholder interests, signposts a new approach to integrated management of land, water and biological resources in that state.194 Other states have also been moving towards more integrated approaches to natural resources management. These initiatives are discussed in more detail in Chapter 9.

Conclusion 7.58 It is clear that environmental legislation confers wide powers on decision-makers to manage natural resources. On the one hand, the conferment of wide discretion assists managers to choose the right management tools and approaches to apply to a given situation or problem; but, on the other hand, failure to prescribe on outcomes, set performance standards, focus decision-making on stipulated objectives [page 253] and criteria, or require monitoring of performance, can lead to failures in management regimes that would not accord with the expressed objects of the legislation. In this regard, the influence of competing political considerations becomes all too apparent. While it is inevitable that such considerations will shape environmental management policies, arguably these influences should be applied more in policy development than in the implementation of legislation once enacted. The reality is, however, that by building into legislation a wide measure of discretion, decision-makers are not only allowed to choose the appropriate tools for the job, but also may in effect decide, or be required by political

direction, to minimise or abandon efforts directed towards the sustainable management of natural resources. 7.59 In analysing the strengths and weaknesses of environmental legislation in Australia, it may be helpful to bear in mind the principles and guidelines endorsed in 1995 by the Council of Australian Governments (COAG) for the development of national standards and regulations. These principles and guidelines, which have relevance to the design of environmental management legislation, stipulate that: An assessment of a proposed standard requires an adequate evaluation of its economic and social costs and benefits. Such an evaluation is best conducted prior to the design and implementation of the standard. Mandated standards are most likely to be efficient where the management of the environmental risks does not vary greatly. If they do, the hazard is best tackled by a code of practice. There is a direct link between the achievement of the standard and the reduction in the risk of environmental damage. As far as practicable, mandated standards should be expressed in broad outcomes, in preference to processes, outputs or technical requirements. Measurable and audited standards are more easily enforced. Those that cannot be enforced discredit the regime. Ultimately, achieving beneficial environmental results comes down to a comprehension that social and economic expectations cannot be realised without a demonstrable commitment to BPEM. This should be the objective of a whole-of-government approach to managing the environment and natural resources of Australia.

1.

For suggested models concerning the most effective environmental laws, see Preston, ‘Some Elements of Effective Environmental Laws’ (1987) 4 EPLJ 280.

2.

And see Lindsay and Riebl, ‘Risk-based Regulation in Environmental Governance’ (2013) 30 EPLJ 452; Godden et al, ‘Law, Governance and Risk: Deconstructing the Public–Private Divide in Climate Change Adaptation’ [2013] UNSWLawJl 11.

3.

See .

4.

See . These principles are to be applied to local as well as central governments: cl 7.

5.

Competition Principles Agreement cl 1(3).

6.

See Chapter 6.

7.

See generally Chapters 9–10.

8.

An ‘extended producer responsibility scheme’ is a scheme for giving effect to an environmental policy in which the producer’s responsibility for a product (including physical or financial responsibility) is extended to the post-consumer stage of the product’s life cycle: Waste Avoidance and Resource Recovery Act 2001 (NSW) s 15. And see further 16.5.

9.

See, for example, Productivity Commission, Waste Management, Report No 38, 2006, available at .

10. See further 16.5. 11. Section 3. 12. See s 10. 13. Section 11. 14. Schedule 2. 15. For further discussion on this scheme, see 16.8. 16. The Trans-Tasman Mutual Recognition (Temporary Exemption for Prohibited Plastic Bags) Regulations 2011 (NT) and the Trans-Tasman Mutual Recognition (Temporary Exemption for Beverage Containers) Regulations 2011 (NT) purport to exempt the Environment Protection (Beverage Containers and Plastic Bags) Act 2011 (NT) from the operation of the Mutual Recognition Act 1992 (Cth). 17. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) Pt 13 Div 3. 18. Fisheries Management Act 1991 (Cth) s 13. 19. Kelly v The Queen [2004] HCA 12. See also City of Armadale v Merrick [2014] WASCA 125. 20. Catchment and Land Protection Act 1994 (Vic) s 3. 21. See, for example, Bechara v Plan Urban Services (2006) 149 LGERA 41. 22. For example, the phrase ‘person aggrieved’; see further Chapter 19. 23. See also Plumb v Penrith City Council [2002] NSWLEC 223; BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210. 24. The meaning of ‘impact’ in the Act was subsequently amended; see now Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 527E. 25. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Save Our Street Inc v Settree (2006) 149 LGERA 30; Lincoln Minerals Ltd v Minister for Sustainability, Environment and Conservation [2014] SAERDC 33. 26. Save Our Street Inc v Settree (2006) 149 LGERA 30. 27. Port Stephens Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226. 28. Ulan Coal Mines v Minister for Mineral Resources (2008) 161 LGERA 391. 29. See further 7.16. 30. MyEnvironment Inc v VicForests [2013] VSCA 356. 31. The objective intention means the intention as manifested by the words of the statute. It does not mean the subjective intention of parliamentarians or ministers, even if expressed in a second reading speech: Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [31]–[33]; Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12]. And see Spigelman CJ, The Intolerable Wrestle: Developments in Statutory Interpretation, keynote address to the Australasian Conference of Planning and Environmental Courts and Tribunals, 1 September 2010, available on the New South Wales Supreme Court website at . 32. St Helen’s Area Landcare and Coastcare Group Inc v Break O’Day Council [2007] TASSC 15. 33. Categorisation of a development as ‘designated’ triggers a requirement for lodgment of an EIS with the application for development consent, and also raises third party appeal rights: see further 11.17. 34. For example, whether a sewage treatment plant loses its character as designated if it is only incidental to or services a larger development. In Maxwell v Hornsby Council (2002) 121 LGERA 186, Pain J held that such circumstances would not deprive the development of its essential characterisation as ‘designated’. This interpretation was not followed in subsequent decisions of the LEC: see Momentum Architects Pty Ltd v Hornsby Shire Council (2002) 123 LGERA 207; LoganBald Partnership v Byron Shire Council (2002) 123 LGERA 225; Harden Bergia Pty Ltd v Baulkham Hills Shire Council (2002) 125 LGERA 273; Hynes Urban Planners Pty Ltd v Hawkesbury City Council (2003) 123 LGERA 312 (where Pain J changed her opinion based upon the views expressed in the cases above). The Court of Appeal ruling in Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360 effectively restores the opinion of Pain J expressed in Maxwell. 35. Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360. 36. Environment Protection Act 1993 (SA) s 71; and see 16.7. 37. Environment Protection Act 1993 (SA) s 69C. 38. Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [108]– [109]. 39. Maddingley Brown Coal Pty Ltd v Environment Protection Authority [2013] VSC 582. 40. Director General of Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242. 41. See, for example, Interpretation Act 1987 (NSW) s 6; Cranbrook School v Woollahra Council [2006] NSWCA 155. 42. R v Murphy (1990) 64 ALJR 593 (HC) overruling the earlier judgment in the Supreme Court of Queensland (1989) 64 LGRA 286; Bailey v Forestry Commission of New South Wales (1989) 67 LGRA 200; Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 134 LGERA 272. 43. Environmental Protection Act 1986 (WA) s 3. 44. For example, Acts Interpretation Act 1901 (Cth) s 15AB; Interpretation Act 1987 (NSW) s 34; Interpretation of Legislation Act 1984 (Vic) s 35. 45. See, for example, Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 134 LGERA 272. It has been said that statements of intention as to the meaning of words by ministers in a second reading speech, let alone other statements in parliamentary speeches, are rarely, if ever, capable of assisting in the ascertainment of the meaning of a provision: Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 at [12]; Sheehan v State Rail Authority (NSW) [2009] NSWCA 261 at [40]. 46. Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41. 47. Cranbrook School v Woollahra Council (2006) 146 LGERA 313. 48. For example, Roads Act 1993 (NSW) s 88; see Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231. 49. For example, Fire and Emergencies Act 1996 (NT) s 9; Fire Service Act 1979 (Tas) s 29. 50. For example, Fire Service Act 1979 (Tas) s 66(12).

51. State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW) reg 7. 52. Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at [49]. 53. See, for example, SITA Australia Pty Ltd v Greater Dandenong City Council (2007) 150 LGERA 266 (amendment of planning permit to allow activities permitted under an environment protection licence). 54. For example, Roads Act 1993 (NSW) s 88. 55. For example, under threatened species conservation legislation: see Chapter 14. 56. See, for example, District Council of Kingscote v Kangaroo Island Eco Action Incorporated (1996) 67 SASR 410. 57. See Weston Aluminium Pty Ltd v Environment Protection Authority [2007] HCA 50; (2007)156 LGERA 283. 58. Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538; Royal Automobile Club of Australia v Sydney City Council (1991) 74 LGRA 121; Schaap v Tasmanian Water and Sewerage Corporation (North West Region) Pty Ltd [2013] TASSC 17. 59. See 5.46 and following. 60. See Save the Ridge Inc v ACT (2003) 133 LGERA 188; (2004) 134 LGERA 300. 61. See 5.49. 62. Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 at [100]. 63. See, for example, Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31. 64. For example, Native Vegetation Act 2003 (NSW) (NVA) s 25; Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 9 (Airports Act 1996 (Cth); and Antarctic Treaty (Environment Protection) Act 1980 (not affected). 65. Marine Pollution Act 2012 (NSW) s 9. 66. Section 5. 67. For example, Product Stewardship Act 2011 s 9; Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 10. 68. Pollution control legislation usually prevails over the provisions of other legislation except as specified; see, for example, Protection of the Environment Operations Act 1997 (NSW) s 7; Environmental Protection Act 1994 (Qld) s 20; Environment Protection Act 1993 (SA) s 7; Environment Protection Act 1970 (Vic) s 35(2); Environmental Protection Act 1986 (WA) s 5; Environmental Management and Pollution Control Act 1994 (Tas) s 9(2); and Entrad v Maroochy Shire Council (1979) 39 LGRA 200; Sydney City Council v Paul Dainty Corp Pty Ltd [1984] 3 NSWLR 104. 69. Protection of the Environment Operations Act 1997 (NSW) s 7(3). 70. Tweed River Entrance Sand Bypassing Project Agreement Act 1998 (Qld) s 6. 71. Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231 at [109]. 72. Electricity Act 1996 (SA) ss 55B–55L and 55N. 73. Electricity Act 1996 (SA) s 47. 74. For example, Electricity (Principles of Vegetation Clearance) Regulations 2010 (SA). 75. For example, Interpretation Act 1987 (NSW) s 33; Interpretation of Legislation Act 1984 (Vic) s 35. This principle extends also to subordinate instruments (see MyEnvironment Inc v VicForests [2012]

VSC 91) and has also been said to extend to a Ministerial Guideline: see Simpson v Ballarat City Council [2012] VCAT 133. 76. See Woollahra Municipal Council v Minister for Environment (1991) 23 NSWLR 710; Tasmanian Conservation Trust Inc v Tasmania (2000) 109 LGERA 219; Cape York Land Council Aboriginal Corporation v Boyland [2000] QCA 202, discussed in Fisher, ‘Considerations, Principles and Objectives in Environmental Management in Australia’ (2000) 17 EPLJ 487 at 497. See also Rohde, ‘The Objects Clause in Environmental Legislation’ (1995) 12 EPLJ 80–81. 77. Environment Protection Authority v Orica Australia Pty Ltd [2014] NSWLEC 103. 78. Woollahra Municipal Council v Minister for Environment (1991) 23 NSWLR 710; Willoughby City Council v Minister (1992) 78 LGERA 19; Packham v Minister for Environment (1993) 80 LGERA 205; see also Cape York Land Council Aboriginal Corporation v Boyland [2000] QCA 202; Maddingley Brown Coal Pty Ltd v Environment Protection Authority [2013] VSC 582. 79. For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 3; Protection of the Environment Administration Act 1991 (NSW) s 6 (EPA); Sustainability Victoria Act 2005 (Vic) s 6. 80. For example, Environmental Management and Pollution Control Act 1994 (Tas) s 8; Catchment and Land Protection Act 1994 (Vic) ss 21 and 22; Sustainable Planning Act 2009 (Qld) ss 3–5. 81. However, under the subsequently enacted Filming Approval Act 2004 (NSW) s 5, approval for filming in designated areas, which includes wilderness areas, no longer requires development consent, although provisions for EA still apply. 82. See also Woollahra Municipal Council v Minister for Environment (1991) 23 NSWLR 710. 83. Sustainable Planning Act 2009 (Qld) ss 3–5. 84. Environment Protection Act 1993 (SA) s 10. 85. Natural Resources Management Act 2004 (SA) s 8. 86. Environmental Protection Act 1994 (Qld) s 5. 87. Land Use Planning and Approvals Act 1993 (Tas) s 8. 88. See Chapter 8. 89. Dyson, ‘The Water Resources Bill 1996’ (1997) 14 EPLJ 305. 90. See Chapter 22. 91. Sustainable Planning Act 2009 (Qld) ss 3–5. 92. See 7.39 and following. 93. Anderson v Director-General, Department of Environment and Climate Change (2008) 163 LGERA 400 at [16]. See also Broad Henry v Director-General of the Department of Environment and Conservation [2007] NSWLEC 722. 94. Fisher has pointed out that the courts are generally uncomfortable with a ‘purposive’ approach to legislation, preferring traditional prescriptive approaches: see ‘Considerations, Principles and Objectives in Environmental Management in Australia’ (2000) 17 EPLJ 487. 95. Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31. 96. Sections 20 and 21. 97. Pastoral Land Management and Conservation Act 1989 (SA) s 7. 98. Natural Resources Management Act 2004 (SA) s 9. The existence of this duty will influence decision-making under the Act in the sense that regard must be had to compliance with the duty: see Rowe v Lindner [2006] SASC 176; Falkenberg v Minister for Environment and Conservation [2011] SAERDC 52. See also Shepheard and Martin, ‘The Multiple Meanings and Practical

Problems with Making a Duty of Care Work for Stewardship in Agriculture’ (2009) 6 Macquarie Journal of International and Comparative Environmental Law 191. 99. Sections 69–73 and 86–90. 100. For example, Plath v Rawson [2009] NSWLEC 178; Betland v Environment Protection Authority [2010] NSWLEC 183; Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102. 101. For example, Threatened Species Conservation Act 1995 (NSW) s 127ZZN (biobanking scheme to be reviewed two years after biobanking methodology comes into operation). 102. For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 516B. 103. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 122C; Mining Act 1992 (NSW) s 246P; Protection of the Environment Operations Act 1997 (NSW) s 67. It has been said that licence conditions that require regular monitoring of performance are an important part of a precautionary and adaptive management approach: see Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278. 104. For example, Water Board (Corporatisation) Act 1994 (NSW) s 3. 105. See, for example, Water Act 1989 (Vic) s 213 (ministerial functions in relation to water management schemes). 106. Threatened Species Conservation Act 1995 (NSW) ss 50 and 69. 107. Threatened Species Conservation Act 1995 (NSW) s 69. 108. Threatened Species Conservation Act 1995 (NSW) s 91. 109. See South Australian Potato Company Pty Ltd v Minister for Sustainability, Environment and Conservation (No 2) [2014] SAERDC 50 (duty to exercise power to vary a water allocation to prevent the allocation being inconsistent, or seriously at variance, with the relevant water plan). See also Minister for Environment and Conservation v Simes (2007) 98 SASR 481 (duty to refuse water licence for similar reasons). 110. See Chapter 22. 111. See 7.23 and following. 112. In Geelong Community for Good Life Inc v Environment Protection Authority (2008) 159 LGERA 438, general declarations of statutory principles upon which, presumably, policy direction and decision-making should be based (Environment Protection Act 1970 (Vic) ss 1B–L), were held not to enliven a claim for application of the rules of natural justice or a legitimate expectation on behalf of individuals: see 22.31 and following. General principles of approach, like general objectives, may need to be balanced against each other in the context of focused decision-making, making it difficult to regard the treatment of any particular principle in isolation as enlivening a possibility for the application of principles of judicial review: see further Chapter 22. 113. Water Act 1989 (Vic) s 40. 114. Fisheries Act 1995 (Vic) s 28; Catchment and Land Protection Act 1994 (Vic) s 24. 115. Fisheries Act 1995 (Vic) s 42; Water Resources Act 1989 (Qld) ss 4 and 46. 116. Fisheries Act 1995 (Vic) ss 69–89. 117. See 14.95. 118. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 136(5); Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136 (EPA restricted to consideration of environmental factors; not allowed to take into account economic and political considerations); and see Bache, Bailey and Evans, ‘Interpreting the

Environmental Protection Act 1986 (WA): Social Impacts and the Environment Redefined’ (1996) 13 EPLJ 487. 119. See 22.63 and following. 120. For example, Native Vegetation Conservation Act 1997 (NSW) (NVCA) s 15. 121. For example, Fisheries Management Act 1991 (Cth) s 17; Crown Lands Act 1989 (NSW) s 112; Water Management Act 2000 (NSW) Pt 3; Pastoral Land Management and Conservation Act 1989 (SA) s 41; Catchment and Land Protection Act 1994 (Vic) ss 23–36; Native Vegetation Regulations 1991 (SA) s 3(1)(l); Conservation and Land Management Act 1984 (WA) ss 53 and 55. 122. For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) Pt 15. 123. See Chapters 15–16. 124. See 14.99. 125. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 33, 87 and 146. 126. For example, Native Vegetation Act 1991 (SA) s 29; Territory Parks and Wildlife Conservation Act 1976 (NT) ss 42–44; Nature Conservation Act 1992 (Qld) s 81. 127. See Chapter 10. 128. See Chapter 15. 129. See Chapter 14. 130. See Chapter 18. 131. See Chapter 13. 132. Pursuit of principles of ESD, for example, would be seen to be a legitimate planning purpose: see further Chapter 8. 133. Newbury District Council v Secretary of State for the Environment [1981] AC 578; Bathurst City Council v PWC Properties (1998) 100 LGERA 383; Enfield City v Development Assessment Commission (2000) 106 LGERA 419; Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; Lucy v OCC Holdings Pty Ltd (2008) 157 LGERA 279. In Lucy, Robin DCJ remarked (at 25) that the court should be extremely careful about declaring invalid conditions commonly encountered in development approvals since the whole system might become unworkable without them. 134. Hub Action Group Inc v Minister for Planning (2008) 161 LGERA 136. 135. Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 137 LGERA 232; Hub Action Group Inc v Minister for Planning (2008) 161 LGERA 136 at [125]. 136. Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts [2009] FCA 330; Meander Valley Council v Resource Management and Planning Appeal Tribunal [2013] TASSC 42. 137. Director-General, Department of Industry and Investment NSW v Mato Investments Pty Ltd [2014] NSWCCA 132. 138. See Chapter 9. 139. See Chapters 10–11. 140. See Roach ‘Can “Risk-based” Regulation Help Increase Public Confidence in the Environment Protection Authority? An Evaluation of New south Wales Environmental Licensing Reforms’ (2015) 32 EPLJ 346 at 349. Risk-based regulation relies on a risk assessment of an activity that then triggers appropriate risk management, in line with priorities that target achievement of the greatest environmental benefit at lowest overall cost; see Roach at 348.

141. See Chapter 2. 142. Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278. 143. See Farrier and Bond, ‘Transferable Water Allocations — Property Right or Shimmering Mirage?’ (1996) 13 EPLJ 213. 144. See Australian Fisheries Management Authority v Graham [2003] FCA 231. 145. See, for example, Fisheries Management Act 1991 (Cth) Pt 3 (statutory fishing rights); Water Management Act 2000 (NSW) Ch 3 (access licences). 146. See, for example, Fisheries Management Act 1994 (NSW) Pt 3 (commercial share management fisheries). 147. See, for example, Water Management Act 2000 (NSW) s 8. 148. See 17.22. 149. See 8.69. 150. See Chapter 17. 151. For an excellent review of possibilities and practice, see Gunningham and Grabosky, Smart Regulation: Designing Environmental Policy, Clarendon Press, Oxford, 1998. 152. See generally Williams, ‘Use of Transferable Development Rights as a Growth Management Tool’ (2004) 21 EPLJ 105. 153. See, for example, the concept of property vegetation plans (PVPs) under the Native Vegetation Act 2003 (NSW) (NVA) Pt 4. 154. See Fisher, ‘Markets, Water Rights and Sustainable Development’ (2006) 23 EPLJ 100; Pye, ‘Water Trading along the Murray: A South Australian Perspective’ (2006) 23 EPLJ 131; and for further discussion of water entitlements, see Chapter 18. 155. See 17.27. 156. See 17.31. 157. See 15.73. 158. Protection of the Environment Operations Act 1997 (NSW) Pt 9.3B. 159. See 13.36 and following. 160. See, for example, Boyd et al, ‘Compensation for Lost Ecosystem Services: The Need for Benefitbased Transfer Ratios and Restoration Criteria’ (2001) 20 Stanford Env LJ 393. 161. See generally Heal et al, ‘Protecting Natural Capital Through Ecosystem Service Districts’ (2001) 20 Stanford Env LJ 333, and other articles on this topic in vol 20(2) of this journal. 162. Go to . 163. See 13.21. 164. For example, biodiversity offsets as conditions of development consent: see 13.36 and following. 165. For example, Protection of the Environment Operations Act 1997 (NSW) Pt 9.3 (economic measures); Pt 9.3A (tradeable emission schemes); Pt 9.3B (green offsets). 166. See generally Danne, ‘Voluntary Environmental Agreements in Australia: An Analysis of Statutory and Non-statutory Frameworks for the Implementation of Voluntary Environmental Agreements in Australia’ (2003) 20 EPLJ 287; Fitzsimons, ‘Private Protected Areas? Assessing the Suitability for Incorporating Conservation Agreements Over Private Land into the National Reserve System: A Case Study of Victoria’ (2006) 23 EPLJ 365. 167. The enforceability of heritage agreements has, however, been questioned: see Rohde, ‘Heritage

Agreements: Does the Queensland Heritage Act 1992 Remove Common Law Obstacles to Enforcement’ (1993) 10 EPLJ 341. 168. For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 307; Natural Resources Management Act 2004 (SA) s 205(5), (7); Native Vegetation Act 2003 (NSW) (NVA) s 31. 169. For example, Natural Resources Management Act 2004 (SA) s 205(5), (7); Native Vegetation Act 1991 (SA) s 23B; Native Vegetation Act 2003 (NSW) (NVA) s 31. 170. See Peden, ‘Conservation Agreements — Contracts or Not?’ (2008) 25 EPLJ 136. 171. For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 305; Nature Conservation Act 1992 (Qld) s 45; Nature Conservation Act 2002 (Tas) ss 34 and 40; Natural Resources Management Act 2004 (SA) s 205; Native Vegetation Act 1991 (SA) s 23. 172. For example, Heritage Places Act 1993 (SA) Pt 6; Heritage Act 1995 (Vic) Pt 4 Div 2; Heritage of Western Australia Act 1990 (WA) s 29. 173. For example, National Parks and Wildlife Act 1974 (NSW) (NPWA) s 69B. 174. Native Vegetation Act 2003 (NSW) (NVA) s 27 (where authority delegated by the minister). 175. For example, National Trust Acts (Tas) s 19; (WA) s 21A; Conservation Trust Act 1973 (Vic) s 3A; Heritage Act 1995 (Vic) s 86; National Trust of Australia (NSW) Act 1990 s 25; National Parks and Wildlife Act 1974 (NSW) (NPWA) s 69B(1A). 176. See 3.9. 177. See, for example, Conservation and Land Management Act 1984 (WA) s 16; Conservation, Forests and Lands Act 1987 (Vic) s 69, 70; Native Vegetation Act 1991 (SA) s 23; Soil Conservation and Land Care Act 1989 (SA) s 13; Threatened Species Conservation Act 1995 (NSW) ss 121–126. These covenants may be variously described as heritage agreements, land management agreements, conservation covenants, PVPs etc. 178. Native Vegetation Act 2003 (NSW) (NVA) s 12 and Pt 4. 179. Environment Protection Act 1970 (Vic) Pt IX Div 1A. ‘Sustainability covenants are an instrument that can add to the options provided by the other statutory tools within the Act, by providing an opportunity to focus on issues such as product design and broad ranging business, social and environmental considerations, as opposed to a sole concentration on traditional point source management’: EPA Victoria, . 180. To access details of current covenants, go to . 181. See . 182. See 20.107. 183. For example, Conveyancing Act 1919 (NSW) s 89. 184. For example, in New South Wales, under the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 28, to enable development to proceed under an environmental planning instrument or development consent, any covenant may be declared by an environmental planning instrument not to apply to that development or shall apply as modified by that instrument. For a discussion about the application of s 28 to a private covenant, see Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2010] NSWCA 214. 185. For example, National Parks and Wildlife Act 1974 (NSW) s 33; Forests Act 1958 (Vic) s 50; Nature Conservation Act 1992 (Qld) s 29. 186. For example, Wildlife Act 1975 (Vic) s 14; National Parks and Wildlife Act 1972 (SA) s 44. 187. See 12.27.

188. And see Thorpe, ‘Public Participation in Planning: Lessons from the Green Bans’ (2013) 30 EPLJ 93. 189. See 22.3 and following. 190. See Chapter 22. 191. See 5.55 and following. 192. Water Act 2007 (Cth); and for further discussion, see 18.32. 193. Catchment Management Authorities Act 2003 (NSW). 194. See generally Farrier, ‘Fragmented Law in Fragmented Landscapes: The Slow Evolution of Integrated Natural Resources Management Legislation in NSW’ (2002) 19 EPLJ 89; Ho-Shon, ‘Integrated Natural Resources Management in Aquaculture: Realities and Possibilities’ (2003) 20 EPLJ 223; Allen, ‘Heritage Rivers — Protection for Freshwater Resources in a Flurry of Natural Resource Management Reforms’ (2004) 21 EPLJ 329; Allen, ‘Legislation for ICM: Advancing Water Resources Sustainability?’ (2005) 22 EPLJ 96; see also Wentworth Group of Concerned Scientists, ‘Blueprint for a National Water Plan’, WWF, 2003; see .

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Chapter 8 Ecologically Sustainable Development: The Template for Environmental Management Introduction 8.1 The concept of sustainable development, or ecologically sustainable development (ESD) as it is known in Australia, is the central pivot around which all governmental decision-making is increasingly being required to revolve. In recent years, not only environmental and natural resource management (NRM) agencies have been directed to have regard to ESD in decision-making, but the reach of ESD has also been extended to all manner of government agencies that previously would have been under no express directions to have regard to environmental considerations in exercising their statutory functions. The importance of ESD to the development of environmental policy and law therefore can hardly be overstated.

The world conservation strategy 8.2 The starting point for global interest in a sustainable future was the United Nations Conference on the Human Environment in 1972, which formulated an action plan for international cooperation on environmental problems and produced the Stockholm Declaration — 26 principles relating to the preservation and enhancement of the human environment.1 Principle 2 stated that: The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.

The World Conservation Strategy, published by the International Union for the Conservation of Nature (IUCN) in 19802 asserted that any sound sustainable legislative strategy should include specific legislation aimed at achieving the objectives [page 256] of conservation by providing for both the sustainable utilisation and the protection of living resources and of their support systems. Comprehensive conservation legislation should provide for the planning of land and water uses and should regulate both direct impacts on the resource, such as exploitation and habitat removal, and indirect ones, such as pollution or introduction of exotic species. In addition, it should include requirements to undertake ecosystem evaluation, environmental assessments (EAs), and like mechanisms to ensure the incorporation of ecological considerations into policymaking. The law should also provide for the participation of citizens in the elaboration of policies, for the provision of sufficient information for participation to be effective, and for legal recourse to implement these rights. 8.3 In response to, and based on, the World Conservation Strategy, a National Conservation Strategy for Australia was drawn up in 1983.3 It had three major objectives: (1) to maintain ecological systems that are essential to the continuation of life on earth; for example, the recycling of nutrients and natural cleansing of waters; (2) to maintain genetic diversity (the range of genetic features found in living organisms) so as to preserve the natural vigour of plant and animal species on which depend the cultivation of domestic crops and animals and scientific and technical advances; and (3) to ensure the sustainable use of ecosystems and plant and animal species, which sustain agrarian communities as well as major industries. Most states subsequently drew up their own conservation strategies. Implementation of these strategies, however, was subsequently overtaken by the impetus generated by the notion of sustainable development.

Sustainable development as a global ideal 8.4 ‘Sustainable development’ has been defined by the Report of the World Commission on Environment and Development (WCED), Our Common

Future (commonly referred to as the Brundtland Report), as development that meets the needs of present generations while not compromising the ability of future generations to also meet their needs. Another way of putting it is to imagine living off the interest generated by our natural resources while preserving the capital base. The WCED, chaired by the Prime Minister of Norway, Ms Gro Brundtland, and established by the United Nations in 1983, was asked to bring forward proposals for long-term environmental strategies for achieving sustainable development by the year 2000 and beyond, and recommend ways in which the international community of nations could cooperate and take action to achieve that objective. The report was ultimately written in a positive light, but served notice that global strategies for change were required: This Commission believes that people can build a future that is more prosperous, more just, and more secure. Our Report, Our Common Future, is not a prediction of ever

[page 257] increasing environmental decay, poverty, and hardship in an ever more polluted world among ever decreasing resources. We see instead the possibility of a new era of economic growth, one that must be based on policies that sustain and expand the environmental resource base. And we believe such growth to be absolutely essential to relieve the great poverty that is deepening in much of the developing world. But the Commission’s hope for the future is conditional on decisive political action now to begin managing environmental resources to ensure both sustainable human progress and human survival.

8.5 At the heart of the problems of environmental degradation are two major causes: a dramatically increasing world population, and powerful technological advances that enable over-exploitation of the world’s resources. The report repeatedly emphasises that environment and development must no longer be regarded as separate concerns, but that they are interlocked, and if sustainability is to be achieved, institutional reform will have to follow: The integrated and interdependent nature of the new challenges and issues contrasts sharply with the nature of the institutions that exist today. These institutions tend to be independent, fragmented and working to relatively narrow mandates with closed decision[-making] processes. Those responsible for managing natural resources and protecting the environment are institutionally separated from those responsible for managing the economy. The real world of interlocked economic and ecological systems will not change; the policies and institutions concerned must.

Although the concept of sustainability is not easy to articulate, and even more difficult to implement in practice, as Boer succinctly points out:4 … [t]he concept of sustainable use of the earth’s resources is an ancient one. Without the principle of sustainability as a way of life, humans would not have survived into the twentieth

century. With the advent of industrialisation and colonisation, both external and internal, indigenous subsistence lifestyles have been in steep decline. In many countries, colonial powers have effectively destroyed sustainable practices and imposed regimes of land use and agricultural management unsuitable for the culture, the climate and the ecosystem, leading to land degradation and the depletion of natural resources. The principle of sustainability remains the same today, but technology has extended the carrying capacity of local and global environments to a vast extent; however, the limits to growth seem clearly to have been reached in many countries.

8.6 Although the Brundtland Report clearly intended sustainability to be a vehicle for integrating economic development and ecological integrity, the sentiments inherent in it, while being largely accepted by governments worldwide, have not escaped criticism. Measures that gain broad intergovernmental support are often suspect because they have in them ‘something for everyone’, a feature that enables the less ideologically motivated to pay lip service to the concept while denying the reality of the need to take any concrete action to put principles into practice. For example, it was said that the term ‘sustainable development’, ‘has become a convenient and attractive euphemism for a range of diverging political and economic agendas that have changed very little [page 258] in the wake of the Brundtland Report’,5 and which confuse ‘development’ with ‘growth’ and ‘use’ as if the term was intended to refer only to sustainable economic development. For this reason it has been suggested that the concept of a ‘sustainable society’ might be more appropriate.6 On the other hand, vagueness can be an advantage if it can bring all sections of society to some common ground about the overall desirability of treading the path of sustainability. The task then is to make it work. 8.7 The imperative to develop policies and mechanisms for sustainable development in a world that is still continuing to destroy natural resources at unprecedented levels, surfaced again at the United Nations Conference on Environment and Development (UNCED), the ‘Earth Summit’ in Rio de Janeiro in June 1992. This global conference brought together over 170 governments and thousands of delegates, as well as large numbers of nongovernmental organisations that held their own conference in tandem with the main event. Four main formal documents emerged from the conference: the Rio Declaration (a statement of general principles); Agenda 21 (an action plan); and two conventions, Climate Change7 and Biological Diversity.8 A Statement of Principles on Forests was also agreed on. 8.8 The Rio Declaration sets out 27 principles to guide the international community in achieving sustainable development. For example:

regard must be had to the environmental needs of future as well as present generations (Principle 3); environment protection must be an integral part of development (Principle 4); unsustainable patterns of production and consumption must be reduced (Principle 8); and effective environmental laws must be enacted (Principle 11). Other important principles to be recognised include: the precautionary principle (Principle 15); and the polluter pays principle (Principle 16). As a consensus document, of course, it is bound to have weaknesses; however, the fact that governments have accepted it, and that principles of sustainability now appear in many international agreements, paves the way for the eventual incorporation of many of the principles into customary international law.9 The status of ESD as an [page 259] emerging norm of customary international law is important in Australia, since the High Court has confirmed that, unless there is a clear legislative direction to the contrary, domestic legislation will be interpreted and applied in conformity with customary international law.10 8.9 Agenda 21 is an agreed action plan comprising some 40 chapters over 500 pages in length and described as ‘a blueprint for action in all areas relating to the sustainable development of the planet, from now until the 21st century’. Agenda 21 provides mechanisms in the form of policies, plans, programs and guidelines for national governments, by which to implement the principles contained in the Rio Declaration. To advance the agenda, the plan embraces, for example, the adoption of environmentally sound technology; the provision of financial resources to developing countries; developing database information systems for planning and monitoring; and progressing new institutional and legal arrangements. Chapter 8 of Agenda 21 is concerned with the practicalities of integrating environment and development issues in decision-making, particularly with regard to the use of environmental law and policy and economic instruments. 8.10 A United Nations Commission on Sustainable Development (CSD),11 of which Australia is a founding member, was established in 1993 to

progressively oversee the implementation of Agenda 21; and many nations, including Australia, have now committed themselves to reporting regularly to the commission on their efforts in achieving sustainable development.12 Two groups of experts have also been established in areas regarded as critical by developing countries, in particular to the successful implementation of Agenda 21: new and additional financial resources, and transfer of environmentally sound technology.13 The divide between rich and poor, and inequalities in the distribution of power and resources, are seen as the major obstacles to achieving global sustainability. Accordingly, the WCED Report recommended that economic growth in lower income countries was an essential part of achieving sustainable development.14 8.11 As much as anything, UNCED was about changing attitudes to development and environment issues so that the necessity for an integrated solution to the many problems could be realised and accepted, and mechanisms for implementing ESD then could be devised. It was also about making individual nation states realise that legal concepts such as the sovereignty of nations might have to be revised, since [page 260] environmental and resource degradation does not respect state borders. Former Australian Ambassador for the Environment, Sir Ninian Stephen, once remarked:15 The concept of the absolute sovereignty of states will have to make concessions as never before in face of today’s emerging environmental crisis. There will have to be a high degree of willing subordination of national sovereignty in favour of the common good of all nations. Australia, as a signatory to the principles and conventions developed at UNCED, has a responsibility to diffuse the message of ESD throughout all three levels of government — national, state and local.

8.12 Although ‘the uninspired follow up “Earth Summit II” or “Rio + 5” in New York in June 1997, illustrated a certain backlash from the ambiguous agenda of five years earlier’, ‘nonetheless, the concept of ESD has steadily become a part of everyday language, if not everyday policy and decisionmaking’.16 Social inequity, poverty and burgeoning global debt, as well as failures to deliver on technology transfer and capacity building, were identified as major hurdles to the progress of principles of sustainability. The World Summit on Sustainable Development 2002, marking the tenth anniversary of UNCED, and held in Johannesburg, focused on relief of poverty, water, sanitation, and sustainable energy, and in general reaffirmed the international commitment to progressing the principles of sustainable development.17 It also added a third pillar to the concept of sustainable

development — that of social as well as environmental and economic integration — noting (at [2]) that efforts needed to be taken to: … promote the integration of the three components of sustainable development — economic development, social development and environmental protection — as interdependent and mutually reinforcing pillars. Poverty eradication, changing unsustainable patterns of production and consumption and protecting and managing the natural resource base of economic and social development are overarching objectives of, and essential requirements for, sustainable development.

Beyond that, it was generally long on aspiration but short on specific action to be taken. 8.13 Rio+20 (Earth Summit 2012 or Rio 2012) was the third international conference on sustainable development aimed at reconciling conflicting economic and environmental goals. The two main themes of this conference were how to build a green economy to achieve sustainable development and lift people out of poverty, and how to improve international coordination for sustainable development by building an institutional framework. A nonbinding document ‘The Future We Want’ reaffirmed political commitments to Agenda 21 and the progression of the ideals of sustainable development. A commitment was also made to ‘Sustainable Development [page 261] Goals’, a set of measurable targets for achieving sustainability. Other commitments cover the role of ‘environmental services’ being taken into account in measuring a nation’s gross domestic product (GDP), an indicator of economic growth, wealth and standard of living; the need to return the living natural resources of the oceans to sustainable levels; a commitment to phase out subsidies on fossil fuels; and the recognition that fundamental changes in patterns of production and consumption must be encouraged.18 In terms of future legal action on sustainability, reference to UNEP’s Montevideo Programme is probably a more useful indicator of trends and possibilities. The aim of this program is to provide a long-term, strategic guidance plan for UNEP in the field of environmental law.19 The third phase of the program, covering the first decade of the twenty-first century, included ‘innovative approaches to environmental law’ that encompassed the assessment and use of various market-based instruments, including emissions trading and natural resource taxes, promotion of environmentally responsible corporate and institutional behaviour, and appropriate valuation of ecosystem services. The fourth phase (2010–20) concentrates on such issues as interaction of environmental law and environmental protection with other areas of international and domestic law in six areas: human rights; trade and

investment; military activities and security issues; conservation and management of sustainable resources, particularly biodiversity; pollution of waters and the atmosphere; and poverty, equity and social justice.20 The UN General Assembly has recently formally endorsed the sustainable development goals for 2030. The 17 goals, which have 169 associated targets, include environmental goals dealing with issues such as energy, water, climate change, biodiversity and the marine environment.21

ESD in Australia 8.14 Australia has fully embraced the concept of sustainable development through both policy initiatives22 and legislative reform. Over the last 25 years, federal and state governments have introduced a broad range of discussion papers and policy initiatives designed to identify and implement sustainable development, and both federal and state legislation has been vigorously amended to make ESD a fundamental objective of legislative schemes for environmental and natural resources management. [page 262] 8.15 The process began in June 1990 by the release of Commonwealth government discussion papers on ESD.23 Responses to this paper were then used by the Sustainable Development Subcommittee of the Structural Adjustment Committee of Federal Cabinet to finalise the paper for use as a guide for the various working groups that were set up on issues such as air, water and land degradation, biological diversity and climate change. Working groups also dealt specifically with resource-based issues such as forestry, mining, agriculture, fisheries, energy, transport and tourism.24 The outcome of this process was the finalisation of a National Strategy for Ecologically Sustainable Development (NSESD), endorsed by each state and territory government in December 1992,25 by which it was agreed that the future development of all relevant policies and programs, particularly in key industry sectors that utilise natural resources and are national in character, should take place within the framework of the NSESD and the Intergovernmental Agreement on the Environment (IGAE) 1992.26 8.16 The Australian government’s reference to ‘ecologically sustainable development’ was thought to emphasise the necessary integration of economy and environment pursued by WCED:27 Ecologically sustainable development means using, conserving and enhancing the community’s

resources so that ecological resources, on which life depends, are maintained and the total quality of life, now and in the future can be increased.

The NSESD was, however, expressed to be subject to budgetary priorities and constraints in individual jurisdictions. In an attempt to integrate economic and environmental issues into decision-making and provide a basis for qualitative research, the federal government established a Resource Assessment Commission (RAC) in 1989. Until its demise in 1993, the RAC attempted to integrate economic and environmental factors into decision-making on complex and contentious resource issues such as forestry, mining in the Kakadu conservation zone in the Northern Territory, and coastal protection. In any inquiry, the RAC was required to take into account the various uses that could be made of a [page 263] resource and then consider the environmental, cultural, social, industry, economic and other values involved in those uses, and make an assessment of losses and benefits involved in the various alternative uses to which the resource might be put.28 8.17 Since the demise of the RAC, there has been a concerted effort by the Australian federal government to establish its role as the coordinator of national strategies for environmental and natural resources management, implementation of which depends on principles of cooperative federalism. This was explained in more detail in Chapter 5. To a large extent, though, the work of the RAC has been continued, largely, though not always, outside the formal inquiry processes, by the Productivity Commission, which either initiates its own investigations or responds to Commonwealth initiated projects. The commission has produced a number of reports on various environmental and natural resource-based issues, including, for example, reports on sustainable land management,29 implementation of principles of ESD by Commonwealth government agencies,30 waste,31 and impacts of native vegetation and biodiversity regulations.32 The commission has also published a number of research papers on environmental issues; for example, biodiversity33 and market-based incentives.34

ESD as a legal concept 8.18 ESD has become the most important legislated criteria for environmental management, not just as an object of legislation, but as a

mandated consideration for environmental decision-making. Statutory requirements to ‘have regard to’ ESD when making decisions appear not just in environmental legislation, but perhaps more importantly in legislation conferring discretionary powers on a wide range of government agencies to take or approve activities that might impact adversely on the environment and natural resources. [page 264] Although legal definitions of the concept of ESD differ between federal and state legislation, most are fundamentally based on the definition of ESD agreed to by the Commonwealth, states and local government, and embodied in the NSESD and the IGAE. This definition states, in summary: Ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs … the precautionary principle; intergenerational equity; conservation of biological diversity and ecological integrity; and improved valuation, pricing and incentive mechanisms.

The focus on the four stipulated means of achieving ESD does not reflect all of the principles commonly referred to as the components of sustainable development at an international level.35 These principles, however, are clearly not intended to be exclusive and other principles may be required to be considered in order to meet defined statutory objectives. For example, much of the legislation described in this book would require decision-makers also to build into their processes of decision-making public participation, access to information and to justice, the polluter pays principle, and the application of environmental impact assessment (EIA), all of which are regarded as important components of sustainable development at an international level, and which are generally key features also of environmental legislation in Australia. 8.19 New South Wales has quite consciously adhered to the NSESD definition,36 while at the same time developing policies and legislation that incorporate other principles of sustainable development. Other jurisdictions have used the NSESD definition as a foundation, building in references also to social and economic objectives, short- and long-term decision-making, and global considerations. For example, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 3A emphasises that ‘decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations’. The Sustainable Planning Act 2009 (Qld) s 8 refers to ecological sustainability as:

… a balance that integrates — (a) protection of ecological processes and natural systems at local, regional, State and wider levels; and (b) economic development; and (c) maintenance of the cultural, economic, physical and social wellbeing of people and communities.

[page 265] 8.20 The concept of ESD, however, is still developing, and possibly maturing. Answering the question ‘what is sustainable development?’, legislation in Victoria states:37 (1) Ecologically sustainable development is development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends. (2) The objectives of ecologically sustainable development are — (a) to enhance individual and community well-being and welfare by following a path of economic development that safeguards the welfare of future generations; (b) to provide for equity within and between generations; (c) to protect biological diversity and maintain essential ecological processes and lifesupport systems.

It then continues: … in the administration of this Act the following are to be considered as guiding principles — (a) that decision making processes should effectively integrate both long-term and short-term economic, environmental, social and equity considerations; (b) 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; (c) the need to consider the global dimension of environmental impacts of actions and policies; (d) the need to develop a strong, growing and diversified economy which can enhance the capacity for environment protection; (e) the need to maintain and enhance international competitiveness in an environmentally sound manner; (f)

the need to adopt cost effective and flexible policy instruments such as improved valuation, pricing and incentive mechanisms;

(g) the need to facilitate community involvement in decisions and actions on issues that affect the community.

This sort of definition clearly emphasises the need for decision-making that adopts the broadest possible worldview in a quest for the integrated recognition and pursuit of quality of life outcomes. It does, however, have to be translated into real-life decision-making. In Victoria, an object of the Commissioner for Environmental Sustainability is to encourage decision-

making that facilitates ESD.38 Another function is to audit ‘the organisational structure, policies, practices, processes and procedures for implementing environmental management, including systems for designating responsibility for and allocating resources to, environmental management’,39 and make recommendations to government about setting and achieving appropriate [page 266] environmental standards and targets.40 Assuming the government is committed to the pursuit of ESD then this suggests at least some means of gradually improving public authority decision-making to more truly reflect ESD principles. More recently, the Environment Protection Act 1970 (Vic) s 1B warns that effective integration requires that the measures adopted should be cost-effective and in proportion to the significance of the environmental problems being addressed. 8.21 Legal definitions of ESD are, however, problematic because: the concepts and principles are expressed in often vague and ambiguous language, making interpretation difficult; they fail to give guidance to decision-makers about the practical implementation of principles of ESD; they do not prioritise ESD in decision-making; they tend to treat sustainability as part of a procedure for, rather than as a focus or an outcome of, decision-making; there tends to be little accountability for pursuing or achieving sustainable outcomes; and there are few requirements in legislation for actually monitoring the sustainability of outcomes. His Honour Justice Paul Stein has summed up some of the difficulties thus:41 … the inclusion of the principles in Australian legislation has been largely confined to objectives of statutes or agencies without any real guidance to decision-makers as to whether and how to apply the core principles or what weight to give them. Moreover, some of the principles contain vague statements, some might call them aspirations, as well as ambiguities, inconsistencies and uncertainties. Difficulties of interpretation and application are manifest. There is even discussion on whether the principles are merely guiding or whether they are also operational. In these circumstances, who can blame the courts for proceeding, like the precautionary principle, with a degree of caution?

A common drafting technique in legislation is to specify ESD as one of a

number of objectives of the legislation, or of regulatory authorities, or as one of a number of features to which decision-makers should have regard. This technique was discussed in Chapter 7. In Queensland, for example, ESD is one of the ‘standard criteria’ for decision-making.42 Sometimes principles of ESD command decision-making without ESD actually being referred to;43 or the term ‘sustainable management’ may be used.44 [page 267] Frequently, these objectives or decision-making criteria encompass both ESD and economic and social considerations. It could be argued that legislation that defines ESD as the effective integration of environmental and economic factors in decision-making, but then requires decision-makers also to have regard to ‘other factors’ such as social and economic factors, effectively gives a ‘double weighting’ to social and economic factors. For example, the EPBCA s 136 instructs the minister, when deciding whether to approve an action, to consider, among other things, economic and social matters; and in considering ‘those matters’ to ‘take into account’ the principles of ESD. Yet the definition of ESD in the Act already refers to the integration of environmental, social and economic considerations.45

Process or outcome? 8.22 If ESD is to be pursued seriously, however, then surely this should be the paramount object of legislation. It should be the outcome that decisionmakers strive to achieve, not part of a process that simply requires ESD to be considered on the way through to making a decision; and decision-makers should therefore be instructed to do more than simply ‘have regard to’ it. It is difficult, therefore, to resist the criticism of current drafting approaches that, by including ESD as one of a number of objectives of the legislation, or as one of a number of features to which regard should be had by decision-makers, it has missed the point that ESD is not a factor to be balanced against other considerations — ESD is the balance between (or rather integration of) development and environmental imperatives. Any ‘balancing’ process should be undertaken in order to reach or achieve ESD, not to assess the relative priority of ESD to other factors. ESD should stand alone as the object of the legislation. 8.23 In our Western democratic, capitalist system of government, it is arguable that political values are already weighted towards economic and social issues, and although environmental values are important, the prevailing

assumption is that development and growth should be allowed to proceed unless there are clearly proven reasons for limiting it. Legislation that includes environmental values as equally relevant considerations in decision-making may fail to acknowledge the potentially inherent bias in institutional decisionmaking towards economic and social values. If such a bias exists, then arguably environment protection is not even being optimised, let alone maximised. Nevertheless, the increasing familiarity with the principles of ESD does seem to be affecting institutional decision-making, including that of courts and tribunals. Although treatment of principles of ESD may still be arguable as a mandated legal standard for decision-making, such considerations do not really deter decision-makers from applying principles of ESD if they wish. It would be a brave court or tribunal that would declare principles of ESD legally irrelevant to decision-making.46 Only if the making of a decision supposedly supported by principles of ESD could be said to be so [page 268] unreasonable that no reasonable decision-maker could, on the evidence, have made such a decision might the use of principles of ESD be said to fail judicial standards for decision-making.47

ESD in decision-making 8.24 There are five general propositions that may be stated about ESD in decision-making: (1) That just because legislation does not refer to ESD, that does not mean that ESD is irrelevant to decision-making. (2) Where ESD is referred to in the objects of legislation, the exercise of decision-making powers under other provisions of the legislation may be constrained by, and broadly referable back to, those objects. (3) Legislation may refer to requirements that impliedly must, or may, trigger consideration of principles of ESD. (4) ESD may be stipulated as a specific consideration in, or matter for, decision-making. (5) Where ESD is considered in decision-making, it is open to the decisionmaker to weigh or ‘balance’ the priorities so as to achieve an optimal result that accords with the intention of the legislation under which the

power is exercised. Just because legislation does not refer to ESD, that does not mean that ESD is irrelevant to decision-making. In any jurisdiction, the majority of legislation does not refer to ESD so this principle is a good place to start in analysing the practical usefulness of ESD. 8.25 The emergence of the concept of sustainable development as a global ideal, and its acceptance in Australia as a fundamental consideration in designing environmental policies, clearly establishes ESD as a not irrelevant factor in decision-making that may be considered and applied whenever it is relevant to do so. This proposition was established in the earliest case on ESD Leatch v Director General of National Parks and Wildlife Service [1993] NSWLEC 191, where the precautionary principle was applied to a development that threatened the habitat of an endangered frog despite the fact that the legislation under which the decision was taken did not refer to ESD. Stein J held that applying the precautionary principle to this development was clearly consistent with the scope, purpose and content of the legislation. In the Australian Capital Territory, the Supreme Court in Rashleigh v Environment Protection Authority [2005] ACTSC 18 at [28] referred to a decision made by the Administrative Appeals Tribunal in earlier proceedings that ‘the adoption of the precautionary principle is also supported by its inclusion in the WRMP 1999; the Guidelines; its adoption as a matter of current government policy (as set out in 2003–04 Budget Paper No 3); the strategic principles of the Territory Plan and the Integrated Catchment Management Framework adopted by the government [page 269] for the Territory’. And in Animal Liberation v Conservator of Flora and Fauna (Administrative Review) [2009] ACAT 17 the relevance of the precautionary principle was admitted by the Tribunal in determining an appeal against the issue of a licence for culling of kangaroos in the Australian Capital Territory. It is also arguable that the adoption of sustainability policies by government also enlivens the powers of decision-makers to consider principles of ESD. Indeed, such an approach may be required. In BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [93] McClellan J said: As foreshadowed in the Inter-Governmental Agreement on the Environment, a National Strategy for Ecologically Sustainable Development was developed with the co-operation of Commonwealth, State and local government (the ‘ecologically sustainable development strategy’). As with the Inter-Governmental Agreement on the Environment, the endorsement by the Local Government Association of the ‘ecologically sustainable development strategy’ does

not legally bind local government authorities to observe the terms of the strategy, but a proper exercise of their powers would mean that local government authorities (and the Court on appeal) would apply the ‘ecologically sustainable development strategy’ unless there were cogent reasons to depart from the policy.

Such an approach would be complementary to the requirements set out in the Acts interpretation legislation referred to in Chapter 2 that an interpretation which would best achieve the purpose of the Act is to be preferred to any other interpretation. The specific functions under the legislation that further these objectives might then be so intricately linked to, or interrelated with, the overarching principles embodied in the objects within the framework of the legislation, that a decision that does not pursue or seek to achieve those overall objectives might be declared legally invalid. For example, in Blue Mountains Conservation Society Inc v Director General National Parks and Wildlife (2004) 133 LGERA 406, a ministerial approval for filming within a wilderness area of a national park was held invalid because the approval did not promote any management purpose or objective of park management; indeed, by excluding the public while filming was in progress, an objective of the park was effectively denied. Under the Fisheries Management Act 1994 (Cth) s 3, ‘the following objectives must be pursued by the minister in the administration of this Act and by AFMA in the performance of its functions’. The emphasis of the objectives is on efficient and cost-effective fisheries management and preserving the sustainability of fisheries resources. In Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314, the Federal Court stressed that these objectives were not so nebulous as to be incapable of sensible application, and that failure to pursue an objective would amount to a breach of duty. In Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 48 ALD 53, Drummond J added that the duty to pursue objectives impliedly amounted to an obligation to seek to achieve them.

‘In accordance with’ 8.26 In Keech v Western Lands Commissioner (2003) 132 LGERA 23, where the legislation in question, the Western Lands Act 1901 (NSW) s 2(e), states, as an object [page 270] of the Act, to ensure that the relevant land ‘is used in accordance with the principles of ecologically sustainable development’, Talbot J held that the fulfilment of the objectives (which also included social and economic as well

as environmental objectives) must guide the actions of the commissioner; and that the economic hardship potentially faced by the applicants as a result of the commissioner’s decision to revoke a cultivation permit did not outweigh the potential impact on the environment from the continuation of the activities permitted by the permit. He said (at [50]: The Court recognises that one of the objects of the Western Lands Act stated in s 2 is to promote the social, economic and environmental interests of the Western Division. The fulfilment of that objective is not achieved by taking one or other of the nominated interests and addressing it without regard to the other interests.

Where the ‘balance’ lies in addressing these requirements is however clearly for the decision-maker to determine (see 8.35 below) 8.27 The Waste Minimisation Act 2001 (ACT) s 6 goes further still, stating that ‘the objects of this Act are to be achieved in accordance with the principles of ecologically sustainable development’. Mandated requirements to achieve statutory objectives, let alone in accordance with principles of ESD, are not a common feature of legislation. Although this statutory instruction is that achievement of the objectives of the Act should be ‘in accordance with’ rather than by ‘applying’ principles of ESD (see below), both these statutory instructions are clearly stronger than merely requiring decision-makers to ‘consider’ ESD, which is a common drafting technique.48 How much stronger is debatable. It could be argued that an instruction to ‘achieve in accordance with’ is in fact stronger even than ‘achieve by applying’. Applying principles of ESD would not necessarily result in an achievement of the objects of the Act that was necessarily in accordance with principles of ESD.

‘Applying’ ESD 8.28 The National Parks and Wildlife Act 1974 (NSW) (NPWA) s 2A(2)49 states that the objects of the Act ‘are to be achieved by applying the principles of ecologically sustainable development’. In Anderson v Director-General, Department of Environment and Climate Change [2008] NSWCA 337, a case involving interference with Aboriginal cultural heritage, the New South Wales Court of Appeal accepted that intergenerational equity was a relevant consideration for the decision-maker in the context of this statutory instruction. Applying principles of ESD effectively means however striking a balance between developmental and environmental objectives.50 8.29 More recently, in Director-General, Department of Environment,

Climate Change and Water v Venn [2011] NSWLEC 118 at [329-330], the Court has said that [page 271] ‘an order to remedy a breach of the Parks Act should seek to achieve the objects of the Parks Act by applying the principles of ecologically sustainable development, including the polluter pays principle’. Another, and perhaps simpler approach, to defining a legal duty whenever ESD is mentioned in the objects of legislation is that set out by Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 at [121], where he stated that the principles of ESD: ‘… are to be applied when decisions are being made under any legislative enactment or instrument which adopts the principles’. Although the intention to adopt principles of ESD may be garnered from an objects clause in the legislation, arguably it need not be; the adoption of ESD could be interpreted from the scope and purpose of the legislation. Although this approach has not yet been confirmed by a court, the seed has been sown in Minister for Planning v Walker [2008] NSWCA 224 where Hodgson JA said (at [39]): In my opinion, it is a condition of validity that the Minister consider the public interest. Although that requirement is not explicitly stated in the EPA Act, it is so central to the task of a Minister fulfilling functions under a statute like the EPA Act that, in my opinion, it goes without saying. Any attempt to exercise powers in which a Minister did not have regard to the public interest could not, in my opinion, be a bona fide attempt to exercise his or her powers.

And further (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, and thus become capable of avoiding decisions.

And in Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48 at [59] it was confirmed that ESD, as an aspect of the public interest, may be taken into account whenever issues relevant to principles of ESD arise. The objects of the legislation will also influence sentencing considerations where a defendant’s actions in committing an offence by taking a prohibited action without first obtaining the necessary approval undermines the legislative objectives of the regulatory scheme by impeding the achievement of ESD.51

8.30 Many pieces of legislation refer to the term ‘sustainable’ otherwise than in the context of ‘sustainable development’. For example, an object of the Heritage Act 2004 (ACT) s 3 is to achieve the greatest sustainable benefit to the community from places and objects consistent with the conservation of their heritage significance. The Forest Management Act 2013 (Tas) s 15 states that the forest manager must perform [page 272] its functions in a manner that is consistent with the principles of forest management set out in the Forest Practices Code, as a contribution to the sustainable management of Tasmania’s forests. Some legislation, and instruments of management developed under legislation, also use a ‘triple bottom line’ approach, referring to environmental, economic and social values. For example, one of the objects of the Tree Protection Act 2005 (ACT) in s 3 is to protect ‘urban forest values’ defined as the amenity and economic and environmental benefits derived from the urban forest and the associated tree canopy cover. To inform decision-making under all this legislation there would seem to be little doubt that principles of ESD would be a relevant consideration; and certainly not irrelevant, in the sense discussed at 8.24 (1) above.

The ‘public interest’ 8.31 Legislation commonly makes the ‘public interest’ a mandatory or discretionary52 consideration for decision-makers. Having regard to the subject matter, scope and purpose of the legislation, particularly where the objects encompass principles of ESD, this could enliven the duty to have regard to ESD in decision-making where the principles are relevant to determination of the issue. This has certainly been the approach of the New South Wales Land and Environment Court (NSWLEC) in relation to the statutory directive in the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 79C to ‘take into consideration such of the following matters as are of relevance’, including ‘(e) the public interest’.53 This approach is enlivened by the requirement in the Land and Environment Court Act 1979 (NSW) s 39(4) that in hearing a merit appeal, the court itself must have regard to the ‘public interest’. It would be curious if the court on appeal were instructed to have regard to a matter that the original decision-maker was not. The issue, however, is likely to be not so much whether the original decisionmaker was able to have regard to the matter, but whether the decision-maker

should have had regard to it or, indeed, should have used or applied it. It has been said, for example, that the public interest criterion enables the decisionmaker to range widely across environmental and socio-economic impacts of proposals, and that the extent of such wide-ranging inquiry, if not proscribed by the legislation, is for the decision-maker to determine.54 In Minister for Planning v Walker (2008) 161 LGERA 423, the New South Wales Court of Appeal said that the requirement to have regard to the public interest was a central feature of decision-making under statutes such as the Environmental Planning [page 273] and Assessment Act 1979 (NSW), even if not expressed directly in the legislation. This requirement, however, operates at a high level of generality, and does not of itself require that regard be had to any particular aspect of the public interest, such as principles of ESD, absent any other requirement in the statute. ESD was but one of many objects of the Act, some of which might have no relevance to many decisions. Hodgson J went on to say, however (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.

8.32 In Walker the Court of Appeal in fact had set aside the Land and Environment decision confirming the relevance of ESD to decision-making. In Aldous v Greater Taree City Council [2009] NSWLEC 17 at [28], Biscoe J interpreted this as a matter of timing: As I understand it, if the … approval in Walker had not been given in 2006 but at some later time, there would be a strong prospect that failure to consider the principles of ESD would avoid the decision because of a growing public perception that ESD is plainly an element of the public interest. It appears that the burgeoning global ESD and climate change scientific and legal developments prior to the 2006 concept plan approval, which I surveyed in my judgment in Walker, were insufficient to persuade the majority of the Court of Appeal, as they had persuaded me, that that time was at hand when the 2006 … approval was given. Earlier Preston J, the Chief Judge of this Court, had said in his article, ‘The Role of the Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific’ (2005) 9 Asia Pacific Journal of Environmental Law 109 at 211: ‘It is clear that the time for sustainable development has come, and it is essential that individual judges and national judiciaries seize the opportunity’.

In Aldous, Biscoe J held that while the local council was obliged to consider ESD, in the context of climate change induced coastal erosion, as a ‘public interest’ consideration under the EPAA s 79C, it had properly done so in this case.

8.33 In Kennedy v New South Wales Minister for Planning [2010] NSWLEC 129 at [32], Biscoe J confirmed his interpretation of the Court of Appeal decision in Walker: … the Court of Appeal supported much of my reasoning and conclusions, as I discussed in Aldous v Greater Taree City Council [2009] NSWLEC 17, 167 LGERA 13 at [25]–[32]. The Court of Appeal held that it is mandatory that the Minister consider the public interest when determining a concept plan approval …55 The majority (the third member of the court expressing no opinion) held: (a) if the … approval had not been given in 2006 but at some later time, there would be a strong prospect that failure to consider the principles of ecologically sustainable development would invalidate the decision because of a growing public perception that ecologically sustainable development is plainly an element of the public interest: at [56];

[page 274] (b) the Minister had failed to consider the principles of ecologically sustainable development. Such consideration in relation to this project would have required consideration of longterm threats of serious or irreversible environmental damage, not inhibited by lack of full scientific certainty, and this almost inevitably would have involved consideration of the effect of climate change flood risk: at [60]; (c) it was surprising and disturbing that the Director-General’s report to the Minister did not address this aspect of ecologically sustainable development and that the Minister did not postpone his decision until he had a report that did: at [62].

In Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33, it was argued that two project approvals were invalid because the minister had failed to consider, or adequately consider, the principles of ESD as an element of the public interest. Biscoe J said (at [241]– [243]): The requirement to consider ESD principles cannot be an invitation to the court on judicial review to consider the merits of the decision, or to hold decisions invalid merely because in the court’s view insufficient weight was given to the principles, or because in the court’s view incorrect results were reached in light of the principles. Having regard to the statutory terms of the precautionary principle and the principle of intergenerational equity set out earlier, it can be said that those principles of ESD need only be taken into account to the extent that there is some material environmental issue, risk or consequence — actual or potential — relevant to the issue being determined. As such environmental issues, risks or consequences do not necessarily stop at the boundaries of the land the subject of the application, the principles must be considered in the environment in which the land exists. The decision-maker is then required to consider the substance of the matters referred to in the ESD principles with respect to the actual or potential issues, risks or consequences. The requirement is not satisfied by mere reference, recitation or lip service to ESD principles. Nor will it fail to be satisfied merely because the labels of ESD principles were not employed if the decision-maker nevertheless considered the substance in relation to such matters; for example, where the decision-maker considered the possible long-term environmental consequences, and did so uninhibited by lack of full scientific certainty.

In Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105, the Court of Appeal confirmed that the public interest embraces ESD where it is necessary to consider the environmental impact of a project. 8.34 To summarise: (1) A statement in legislation that a decision-maker must consider the ‘public interest’ does not necessarily include an obligation to consider ESD. (2) However, in most cases, given the all-embracing nature of ‘sustainable development’, ‘public interest’ is likely to include ESD as a mandatory relevant consideration. (3) Where the decision-maker needs to consider ESD, this obligation operates at a level of generality that does not require the decision-maker to consciously address each of the principles of ESD. (4) A failure to address the substance of such principles may, however, reveal a failure to effectively consider ESD and therefore a failure to consider the ‘public interest’. [page 275] In practice, the increasing familiarity of decision-makers with these judicial principles seems to be having the desired effect in directing decision-making to principles of ESD; consequently, it is becoming more difficult to succeed in legal challenges based upon the failure of the decision-maker to have regard to principles of ESD.56 8.35 Where legislation instructs decision-makers to ‘consider’ ESD, and the concept of ESD is further teased out to include stipulated principles, the question arises whether a ‘global’ approach to considering ESD would suffice to carry out the legal obligation; or whether this could only be achieved by considering each of the enumerated principles, which in totality would carry out the obligation to ‘consider’ ESD. In Blue Wedges Inc v Minister for Environment, Heritage and the Arts (2008) 157 LGERA 428, it was held that the minister did not need to take into account each of the principles of ESD referred to in s 3A of the Act when considering each of the economic or social matters referred to in the EPBCA s 136. Some of the principles referred to in s 3A were not applicable to social matters, and the obligation of the minister would be satisfied by a ‘global’ approach; that is, considering the matters together rather than separately and

independently. Similarly, in Drake-Brockman v Minister for Planning (2007) 158 LGERA 349 at [132], Jagot J said: ‘The breadth of the unifying theme of ecologically sustainable development explains the ubiquity of the concept in development decisions and discloses the level of generality at which it is capable of operating’. In this case, it was held that, assuming the minister was under some obligation to consider principles of ESD, nevertheless the statutory obligation did not operate at the level of particularity claimed by the applicant — that is, so as to require a quantitative analysis of greenhouse gas emissions — although the minister or director-general of planning might dictate that outcome. 8.36 However, in Minister for Planning v Walker (2008) 161 LGERA 423, the New South Wales Court of Appeal said (obiter) that if it was considered mandatory to consider principles of ESD, then although that consideration would not require explicit formulation of issues in terms of the various principles and programs specified in definitions of ESD, the consideration would require that the substance of those matters referred to in those principles and programs be addressed. In Walker, which concerned a proposal for development that could be subject to flooding, this would have involved almost inevitably some consideration of the effect of climate change flood risk. [page 276] 8.37 The conclusion in Walker reveals an important principle: that requirements to ‘consider’ principles of ESD may be given more explicit and practical meaning in planning instruments, requirements for EA of projects and activities, consideration of applications to develop and use natural resources, and imposition of conditions on approvals. The practical application of principles of ESD is discussed at 8.24. The true objective of ESD is integration not environmental dominance over other social and economic issues. Only in very rare instances are decisionmakers specifically required to have regard only to environmental considerations when making decisions.57 ESD introduces the notion of integrating economic and environmental factors, though arguably in decisionmaking this will become a balancing exercise where, as inevitably happens, the fulfilment of both objectives cannot be maximised.58 This point is perhaps recognised in the Sustainable Planning Act 2009 (Qld) s 8, which defines ecological sustainability as: … a balance that integrates—

protection of ecological processes and natural systems at local, regional, State and wider (a) levels; and (b) economic development; and (c) maintenance of the cultural, economic, physical and social wellbeing of people and communities. [Emphasis added]

In Chesol Pty Ltd v Logan City Council [2007] QPEC 1, Rackemann DCJ said (at [87]): It should be noted that the ‘balance’ which is referred to is a balance which relates to each of the limbs in subparagraphs (a) to (c) inclusive (the ecological, economic and social limbs). Further, the balance is not one which prioritises one limb over the other, but rather one which ‘integrates’ each of the limbs. Ecological sustainability, as defined, is as much about economic development and the maintenance of the cultural, economic, physical and social wellbeing of peoples and communities as it is about the protection of ecological processes and natural systems.

8.38 Clearly, arguments will then be presented in merits appeals over where the balance might lie.59 In Hunter Environment Lobby Inc v Minister for Planning [2011] [page 277] NSWLEC 221 at [22], Pain J also acknowledged that considering ESD principles requires the balancing of environmental, economic and social factors; and in Victoria, the Court of Appeal has also interpreted various provisions in the Planning and Environment Act 1987 (Vic) as revealing ‘the intention that the balancing of competing factors to produce a net community benefit and sustainable development is integral to the policy supporting the Act and, therefore, integral to the Minister’s exercise of discretion’.60 In other words, there are bound to be trade-offs between the oftencompeting components of ESD. ESD attempts to maximise the combined total of economic, social and environmental values of resource use, but to do this some of the elements that make up these values may have to be traded one against the other. Application of ESD may therefore be said to pursue optimal protection of environmental values rather than maximum protection. In Development Assessment Commission v A & V Contractors Pty Ltd [2011] SASCFC 21 at [78], the South Australian Full Court acknowledged that, under the Development Act 1993 (SA), ‘the statutory objectives of development plans, and the assessments of proposed developments made against them, is to advance the social and economic interests of the community by ecologically sustainable development which optimises the habitat of its citizens’.

‘Balancing’ is an executive function (subject to judicial review) 8.39 Determination of priorities and weighting in individual decisions is for the decision-maker to determine.61 Only where the decision-maker has, in a legal sense, given cursory or inadequate attention to a relevant consideration;62 or applied unreasonable weighting, on the evidence, to particular relevant considerations, would such a decision be challengeable in law;63 although such a decision may also raise issues that may be challenged on the merits, where the legislation allows for merit review.64 In practice, deciding between competing priorities may involve value judgments applied by whoever is making the decision. In such circumstances, carefully thought out guidelines or policies might be useful in assisting decision-makers to understand the priorities of government and how values should be weighed, so long as these reflect the legal context. This rarely happens; one reason is because flexibility in decision-making is considered important in order that the decision-maker can respond to the circumstances of each individual case. Another is that value statements can cause [page 278] controversy where the stated values do not accord with those of certain sections of the community. For example, a short-lived amendment to the planning system in NSW sought to prioritise the economic effects of mining over all other priorities:65 In determining whether to grant consent to the proposed development, the significance of the resource is to be the consent authority’s principal consideration under this Part. Accordingly, the weight to be given by the consent authority to any other matter for consideration under this Part is to be proportionate to the importance of that other matter in comparison with the significance of the resource.

Not surprisingly, this was controversial and the amendment was soon repealed. Would prioritising the achievement of ESD in decision-making as an outcome rather than a process be less controversial? 8.40 One obvious area where differing objectives can come into conflict is the planning and management of land for bushfire mitigation risk, where value judgments about management and protection of biodiversity in the context of threats to life, property and economic interests may have to be made. In this case codes and guidelines may give some priority to certain values. For example, the Planning for Bushfire Risk Mitigation General Code66 in the Australian Capital Territory incorporates assessment using the

Australian Standard For Risk Management AS/NZS 4360 and AS 3959, which also deals with biodiversity conservation, in so far as that is possible commensurate with risk mitigation. The general approach of a court in interpreting statutory provisions that trigger conflicts between risk management and biodiversity protection would also be to accord priority to protection of public health and safety and removal of hazards.67 Another example might be where a strategic management plan sets out criteria for sustainability, or criteria for addressing and balancing competing land uses, with no particular statement about priorities. When not all of the criteria can be fully met in approving an application for a proposal, then the decision-maker will have to apply a value judgment, guided perhaps by the overall intent of the plan, to determine whether inconsistency with one of the criterion may be so important that the proposal cannot be approved.68 In Hub Action Group Inc v Minister for Planning [2008] NSWLEC 116, for example, the Court concluded (at [71]): In this case, while adoption of a waste minimisation strategy and operation of a waste disposal facility with a resource recovery facility is beneficial in promoting sustainability, by such means as encouraging more efficient use of resources, reducing unnecessary resource consumption, improving resource recovery and reducing waste generation, by siting the waste disposal facility on prime crop and pasture land, the proposed development impedes achieving sustainability by adversely affecting the long-term use, for sustained agricultural production, of that land.

[page 279] Value judgments frequently have to be made about the acceptable level of impacts.69 In Anderson v Director-General, Department of Environment and Climate Change [2008] NSWCA 337, Tobias JA, in the NSW Court of Appeal, said (at [85]) that: … it is difficult to see how inter-generational equity … can be properly considered without the assessment of the archaeological and cultural significance of the Aboriginal objects on the one hand and the cumulative effect or impact which their destruction may have on the other.

However, … inter-generational equity requires an evaluative judgment as to these matters for otherwise … all Aboriginal objects found on land must be conserved for the benefit of future generations of the traditional custodians of that land. That cannot be so.

Applying the precautionary principle, or at least a precautionary approach, to potential impacts on Aboriginal heritage might, however, be an appropriate response.70

Practical application of the principles of ESD Why sustainability? 8.41 Although this may seem a self-evident question, and the short answer is because legal and/or policy imperatives demand it, searching for the reasons that underpin the policy directives helps to pinpoint what is expected of decision-makers when addressing principles of ESD; at least if an ‘outcomesbased’ approach is considered desirable or required. Responsibility for future generations is, of course, a central tenet of the notion of ‘sustainability’. The meaning of ‘sustainable development’ is, however, notoriously difficult to grasp with any degree of precision or certainty. Most people would have a vague idea, or feeling, what it means but they would be unable to articulate it with any confidence. The desirability of pursuing sustainability would be generally justified as a way of improving the quality of life of both present and future generations. ‘Quality’ would be made up of a mixture of economic, social and environmental influences, the importance of which would vary according to the priority given to each of these elements by the individual; although recognition of the legitimacy of each factor would enhance the value of the others. The search for ‘quality’ also recognises the inherent weakness in relying on GDP as a measure of the health of a community, region or nation. ‘Standard of living’ is not the same as ‘quality of life’. Accordingly it has been proposed that a ‘genuine progress indicator’ (GPI), factoring in environmental data such as losses from pollution, should [page 280] be used to supplement the GDP in order to produce a more realistic appraisal of the health and wealth of a community or nation. In other words, GPI is effectively ‘net domestic product’, which could fall to zero where social and environmental losses equal economic gains. A GPI has been developed in the US state of Maryland using 26 different indicators (7 economic, 9 environmental and 10 social).71 The State of Vermont has since legislated for the use of a GPI.72 By contrast to the concept of ‘sustainable development’, the notion of looking after our children and grandchildren is more ‘understandable’ or ‘inclusive’, and may help to define more easily what is meant by ‘sustainable development’; providing perhaps a ‘launch pad’ for discussion about how to put notions of sustainability into practice.

Focusing on the needs of future generations may be a good way to generate public acceptance of, and action on, sustainability. Educating for a sustainable future, for example, has been for some time the focus of a nationally agreed approach in Australia to education about environmental sustainability.73 Perhaps also for this reason, some bodies originally set up to pursue sustainable development, have, more recently, been talking more about sustainable futures. The Australian National Sustainability Council’s Annual Report 2013 for example was entitled ‘Conversations with the Future’.74 In its introduction to the report, the National Sustainability Council states that: Decisions and actions taken over the next 10 years will determine whether the next generation of Australians is the first in recent history to be worse-off than their parents and grandparents, or whether they are able to enjoy economic prosperity and stability, environmental amenity and function, and social cohesion that are comparable to — or better than — those we inherited … The Council considers this first report as a starting point that seeks to stimulate and provide evidence for a conversation between Australians on Australia’s future and our collective wellbeing.

The notions of ‘sustainability’ are all gathered here, but set in the context of intergenerational equity. Wales, in the United Kingdom, changed the title of its ‘Sustainable Development Bill’ to the ‘Future Generations Bill’. The working title of the Bill was changed to help communicate its purpose and foster better engagement between organisations on how legislation would be used to ensure that the decisions of today are better for the long term.75 Engaging with communities about the future for their children and grandchildren may well help to explain and justify the necessity to enliven decision-making that pursues strategies for sustainability as an optimal outcome following a process for engaging with strategic and project ‘triple bottom line’ assessment. [page 281]

Is becoming ‘sustainable’ too expensive? 8.42 One view commonly pedalled by conservative commentators is that becoming ‘green’ or being ‘sustainable’ is too expensive, increasing the costs of doing business beyond what might be deemed acceptable. There are two issues here: the costs of designing a ‘sustainable’ project and the costs of not doing so. Whether costs are ‘acceptable’ is a view based on a ‘business as usual’ model and moving more towards sustainability outcomes without doubt will challenge a ‘business as usual’ approach. Evaluation of ‘costs’ will

also depend on commonly applied standards of cost–benefit analysis and reduction of the components of ‘sustainability’ to monetary values. Ascribing monetary values to some components of ESD is of course difficult. How does one value, for example, a tree, maintaining standards for water quality, or delivery of services that provide ‘quality of life’ rather than just a ‘standard of living’, as measured by the GDP? These components of ESD display ‘values’ that are not easily reduced to monetary standards, but are nevertheless vitally important to the wellbeing of both individuals and society as a whole. This is acknowledged, for example, by the reference in the Australian Capital Territory Triple Bottom Line Assessment Framework to a ‘sense of wellbeing’.76 Moving more towards sustainability does require a change in mind-set that accepts that a rigid application of the principles of traditional cost–benefit analysis will not reveal the ‘true’ costs of a proposal. It is also a fact, of course, that designing projects with sustainability parameters in mind may well have cost benefits for many businesses; for example, production of waste or excessive use of water or energy is a cost to business that can be reduced by giving more attention to sustainability initiatives in designing a project or retro-fitting.77 While initial capital costs may be more expensive than the ‘business as usual’ option, once the ‘payback’ period is achieved ongoing operating costs may well become much cheaper than the alternative. This principle has clearly been recognised, for example, in the Australian Capital Territory through the establishment of the Carbon Neutral Government Loan Fund,78 which encourages, among other initiatives: retrofitting energy-efficient lighting and/or control systems throughout an office, facility, streetlights; improving heating and cooling equipment; installing smart energy management systems; installing solar hot water systems; introducing cogeneration technology; and replacing inefficient equipment such as refrigerators or freezers. [page 282] Energy efficiency projects funded through this initiative would be expected to have a payback period of less than three years. Nevertheless, it has to be acknowledged that pursuing sustainable outcomes in the long term may involve committing to upfront costs that exceed the

alternative ‘business as usual’ model. Policies that promote sustainability have to be underpinned by standards that seek to achieve the purpose of the policy. The standards however must be developed with at least a weather-eye open to the costs of compliance with the standards. If costs of compliance are too high then the standards are not likely to be met; compliance may suffer, or projects may fail, and the purposes of the policy may not be realised. On the other hand, watering down standards for compliance to reflect the cheapest compliance costs is also unlikely to deliver the purpose of the policy. For example, requiring energy saving devices to be installed in new housing may appear to conflict initially with the principle of providing cheaper housing. To counteract such an argument decision-makers need to accept that the new ‘business as usual’ model is one that pursues sustainable long-term outcomes; and that ‘cheap’ is a monetary value that reflects neither quality, consistency nor longevity; or takes into account other values recognised by the concept of sustainability. Sanctioning a race to a lowest common denominator or minimum standard, based on lowest possible costs, is not likely to deliver the outcomes sought by sustainability polices. Failure to build into a project components of sustainability may also trigger other impacts associated with externalisation of the true costs of doing business so that costs fall on the public purse rather than being met by the proponent or operator. A good example is the generation of packaging and other types of solid waste that will ultimately go to landfill. Failure to properly calculate costs of ongoing maintenance of approved projects, and clearly ascribing responsibility for meeting those costs, is another example. Traditional economics cannot be the only driver of the ‘affordability’ of measures to promote ‘sustainable’ outcomes. Once one factors into decisionmaking values that are not easily reduced to money, then failure to implement objectives for achieving sustainable outcomes may well become more ‘expensive’ in the longer term than the ‘business as usual’ option. Promotion of sustainability outcomes in decision-making needs to become the new ‘business as usual’ model.

Sustainability in decision-making 8.43 Requirements on decision-makers to consider or apply principles of ESD, or to achieve statutory objectives ‘in accordance with’ principles of ESD, may be given more explicit and practical meaning in planning instruments, requirements for EA of projects and activities, consideration of applications to develop and use natural resources, and imposition of conditions on approvals.

As Preston J remarked in Hub Action Group Inc v Minister for Planning (2008) 161 LGERA 136 at [2]: In order to achieve sustainability … hortatory statements of principle and aspirational goals are insufficient; the grand strategy must be translated into action. This involves not only institutionalizing the principles of ecologically sustainable development in policies and laws, but also ensuring that functions under those policies and laws are exercised

[page 283] in a way so as to promote and implement the principles of ecologically sustainable development. This involves good governance.

Thinking about sustainability frequently raises the following issues: (1) Is this product designed to last longer (war on in-built obsolescence)? (2) Are the components of this product re-usable/recyclable? (3) Is this product ‘green’ or ‘organic’? (4) Does this activity rely on artificial or natural inputs? (5) Does this activity perpetuate or seek to address ‘unsustainable’ behaviour? (6) Does the design of this building or product maximise the use of infinite natural resources rather than finite natural resources? (7) Does adopting a ‘sustainable’ approach increase the costs of doing business? Determining that an activity, product or building is ‘sustainable’ is not an easy task. In particular, principles of sustainability require us to question the life-cycle costs of the product, materials or activity. And this may involve value judgments about where the ‘balance’ may be drawn when some parts of the life cycle do not appear so sustainable. For example, ethanol is held out to be a partly suitable replacement for petroleum for use in internal combustion engines. Ethanol is derived from fermentation of sugar. Growing sugar cane to produce ethanol for use as a source of alternative energy has implications for the use of land for food production. Where does the balance lie? Or if petrol-driven engines are to be partly replaced by electric vehicles, how is that electricity produced? From renewable or non-renewable resources? When collecting e-waste for ‘recycling’ does it matter that this waste is then shipped off to China for treatment? To help answer the question whether a proposed activity or a product is really ‘sustainable’ we first have to address the criteria by which we are going

to evaluate ‘sustainability’. These criteria may be encapsulated, for example, in strategic plans and by the use of benchmarks or standards for procurement, development or project design.

A ‘whole-of-government’ approach to decisionmaking 8.44 A strategic approach to implementation of principles of ESD must be enlivened by a ‘whole-of-government’ approach that recognises that decisionmaking by individual agencies of government will have cumulative and operational impacts on sustainability outcomes across government as a whole. A whole-of-government approach cannot maximise opportunities for ‘sustainable’ decision-making unless all government decision-makers (agencies and individuals) are ‘reading from the same page’ or ‘speaking the same language’ when it comes to acknowledging the meaning and purpose of ESD in decision-making. Coordinating decision-making to pursue, and be directed by, a whole-ofgovernment approach is not so easy if relevant diverse agencies across government do not share a common and accepted understanding about what decision-making for sustainability involves. Most governments lack cohesive organisational structures for sustainability. [page 284] A whole-of-government approach may help to maximise, rather than simply optimise, sustainability values in decision-making if taken across a broad enough landscape. To achieve this, decision-makers need to reach agreement about the way they will approach questions of sustainability. The following suggested framework for thinking about sustainability in decisionmaking is derived from suggestions made by the Chief Justice of the New South Wales Land and Environment Court, Brian Preston, at a seminar in Canberra on 14 February 2014. This draws on the court’s experiences in evaluating and implementing sustainability criteria in decision-making: (1) What is ESD? This needs to acknowledge that ESD is not just a process to be gone through in reaching a decision, but is an intended outcome of decision-making. Care should be taken to also ensure that decision-making does not become ‘formulaic’, ticking the boxes of criteria to be considered, or triple bottom lines to be assessed, rather than being purpose or objective driven. (2) What are our objectives in making this decision? What are the component parts of the decision that will achieve the overall objective of sustainable decision-making? This may involve, for example, meeting certain thresholds for water quality, emissions of greenhouse

gases, and use of ‘green’ building products. (3) How can the various principles of ESD (precaution, inter- and intra-generational equity, internalisation of costs, biodiversity conservation is fundamental and so on) help us to achieve these objectives? (4) Does the decision involve a polycentric problem? Striving towards sustainability as an outcome of decision-making may well trigger cumulative impacts, so that reaching a decision about one particular objective of decision-making may well trigger other issues that need to be considered. For example, seeking to conserve biodiversity in relation to future land releases may impact on the principle of intra-generational equity by making it harder for government to provide affordable housing. The apparent resolution of one issue may well require the decision-maker(s) to go back and review the impacts of that proposed decision on other identified issues of sustainability. Identifying all the potential impacts of decision-making ‘up front’ is obviously important and emphasises the need for whole-ofgovernment consideration of proposals at a level appropriate to the perceived or possible impacts. A decision-maker that sees the need to refer such a proposal to other government agencies may only reach such a conclusion if that decision-maker is ‘reading from the same script’ as other government entities. Ultimately, decision-making that optimises the approach to all the relevant issues may be based on government policies and strategies; or perceived and negotiated values. (5) What level of analysis do we need to address these issues? Are we looking at sustainability within the borders of the Australian Capital Territory, or further afield, even globally? The approach to this question may well be assisted by the availability of easily referenced data on the issues involved; for example, by reference to standards such as those for ‘green’ buildings or energy and water saving products. (6) Where do we draw the boundaries? There will be ‘downstream’ impacts and also potential benefits of decision-making. For example, ‘in-filling’ in established Canberra suburbs will have potentially beneficial effects on preservation of ‘greenfield’ sites, but potentially negative impacts because of strains and stresses on community relations and provision of community services. Should calculations of greenhouse emissions, or savings, for particular activities in the Australian Capital

[page 285] Territory also take into account the possible impacts on greenhouse emissions outside the Australian Capital Territory, even globally? (7) What values are involved? How do we measure what is ‘valuable’? For example, statements about ESD ascribe no particular priorities to the various principles of ESD, beyond stating that biodiversity conservation should be ‘fundamental’ to decision-making. Whether this is an expression of priority is open to conjecture. Government policies and legislation frequently appear to ‘value’ threatened native wildlife and ecosystems more highly than non-threatened species and ecosystems. Values may also be identified in government strategies, but not reflected in particular projects. Values may have to be prioritised and optimised for particular projects or activities. For example, if a particular proposal with a capital expenditure of say $30 million, and generating regular employment, will need to remove 25 per cent of a threatened ecosystem, at what point does the ecosystem become too ‘valuable’ to be lost, weighed against the competing economic and social advantages of the project? Such value judgments cannot be legitimately made unless decision-makers are in agreement about what the relevant values are, and how to measure them, even if there is some disagreement when it comes to optimising those values for use in a particular project or activity. (8) A recognition that EIAs are project specific and generally poor on cumulative impacts and

alternatives. EAs drawn up by a proponent of a proposed project or activity need to be rigorously assessed by the decision-maker(s) to address these issues. Conditions of consent should also reflect the information contained in, and the evaluation of, the EIS; in other words, there should be a clear correlation between what has been assessed and what has been approved. (9) Costs need to be internalised otherwise the true costs of a decision will impact on society as a whole. For example, failure to insist that products meet ‘end-of-life’ disposal criteria inevitably places costs of disposal on the general population. Decision-making that allows development to take place in certain areas may well have downstream impact costs on provision of public facilities such as schools and other community facilities. In the end, cost-sharing arrangements may be worked out between public–private parties or public– public entities; but the true costs need to be evaluated ‘up front’ to enable this to occur in a transparent and informed way. (10) Where the impacts of decision-making are uncertain, use of the precautionary principle may assist a principled approach to decision-making. Where the precautionary principle is triggered, threatened environmental impacts are assumed to be actual (unless the proponent shows otherwise) and prevention, mitigation or compensation measures should be implemented. The fundamental approach should be, first, to avoid possibly significant impacts; if this is not entirely possible, mitigate those impacts; and, only as a last resort, consider compensating or offsetting those impacts. Avoidance, mitigation and compensation measures may be written into conditions of consent. Where there is uncertainty or imperfect knowledge, steps should be taken to reduce these. For example, conditions of consent may also require further research to be conducted, such as collection of baseline data, so as to reduce or clarify the perceived uncertainties; and should require regular monitoring of impacts (to judge whether intuitions or predictions were correct); reporting of monitoring results; establishment of evaluation criteria against which the results of monitoring can be assessed to judge whether the

[page 286] objectives of the conditions are being fulfilled (‘performance criteria’); and powers to require changes to operating conditions to meet the outcome-based approval (‘adaptive management’). An approval may establish a ‘step wise’ approach in which a licence holder may not proceed to the next stage of a project until the preceding stage has been satisfactorily evaluated by the decision-maker for compliance with the outcome-based objectives of the consent. (11) After making assumptions and proposing measures for the prevention, mitigation and compensation of environmental impacts, the acceptability of the project or activity and its environmental impacts, needs to be evaluated. There also needs to be a weighing against all other factors, the economic, social and other environmental factors. (12) A clear understanding of what has been approved. Decisions should lock in value judgements that have been made earlier in the decision-making process. Conditions of approval should be clear, certain and enforceable. They should reflect what has been assessed and evaluated, and not be so general that the expected outcomes are unclear, even if there is some flexibility in the means of achievement. Outcome-based conditions should establish a clear understanding that approval only extends to the project or activity that has the stated impact. Criteria for acceptable impacts should establish a benchmark for compliance with such conditions. Any deviation from the approved impacts may need to be re-evaluated and ‘adaptive management’ employed. (13) Sustainable decision-making also involves ‘meta-adaptive management’. Decision-makers can learn from implementation of earlier approvals (such as information and knowledge on

biodiversity presence, behaviour, response and success of mitigation measures) to provide feedback for future decision-making regarding the next approval and assess the cumulative impacts of all prior approvals. (14) If the measures proposed or agreed upon cannot achieve stipulated objectives and outcomes then the application should be refused.

Tools for implementing sustainability in decision-making This section will consider the implementation of principles of ESD in decision-making: (1) in both strategic and project planning; and (2) in circumstances where ESD is used both as a ‘global response’ and where specific principles of ESD are used in making decisions.

Strategic planning 8.45 Strategic planning and NRM policies and plans can introduce strategic directions or relevant criteria that will guide or direct practical approaches to sustainability in planning for impacts on the use of land and other natural resources. Water management plans, for example, may be directed to sustainable use.79 In Victoria, the Code of Practice for Timber Production 2007, published under the Conservation, Forests and Lands Act 1987 (Vic), has been interpreted as imposing a mandatory [page 287] obligation on VicForests to apply the precautionary principle when planning logging operations in state forests.80 8.46 Environmental planning instruments (EPIs) and associated structure plans can also promote sustainable management and utilisation of natural resources, and require application of principles of ESD, thus empowering decision-makers to refuse applications for development consent or other authorisations that do not promote such principles, or impose conditions directed towards sustainable outcomes.81 This empowerment of course stretches to courts and tribunals hearing merits appeals, where they effectively ‘stand in the shoes’ of the original decision-maker.82 In Tuna Boat Owners Association of SA Inc v Development Assessment Commission [2000] SASC 238 at [27]–[29], the Supreme Court acknowledged that the Environment,

Resources and Development Court (ERD Court) could exercise such a power because ‘as the longer term consequences of the proposed development are not known, it is appropriate to require measures that will avert adverse environmental impacts that might emerge’. Like any other strategic approach of course these strategies will need to be translated into practical requirements for evaluation of projects and activities. Information gained from early strategic planning should percolate down into decision-making processes. Strategic planning is important because: it helps to ‘trickle down’ the meaning of the legislative context into strategic plans that give more focused attention to the individual components of sustainability in real-life planning; and it provides a bridge between the legislative objectives and evaluation of individual projects, providing a firmer footing for imposition of conditions on development to achieve the planned objectives. Strategic objectives do however have to be translated into more specific requirements for project design.

Strategic environmental assessment 8.47 Strategic environmental assessment (SEA), as a ‘regional’ approach, has clear advantages over EA on a project-by-project basis. Not only will an EA be conducted over a much wider area than that encompassed by a single project, thus enabling a [page 288] more integrated assessment of potential cumulative impacts; but such an approach may also obviate the necessity for a raft of individual EAs, triggered every time an application for development consent is lodged. For example, in New South Wales an environmental planning instrument may become ‘biodiversity certified’ if, as a result of strategic assessment of biodiversity values, the minister is satisfied that the instrument will lead to maintenance or improvement of biodiversity values.83 The practical effect of this is to remove procedural and substantive requirements for obtaining development consent that would otherwise be triggered by potential impacts on biodiversity; for example, the necessity to lodge a species impact statement (SIS) where threatened species and ecosystems might be involved. The Commonwealth EPBCA also enables the minister to take a less onerous approach to

assessment of environmental impacts of individual actions if those actions have already been assessed as part of a strategic policy, plan or program.84 These advantages are recognised, for example, in the Gungahlin Final Strategic Biodiversity Plan 2013, (at page 7):85 Firstly, the Plan if approved, will streamline the process for the rest of development in Gungahlin, by removing the requirements for further assessment of individual developments under the EPBC Act. Development would be able to proceed without additional costs and uncertainty improving land supply and affordability while achieving strategic benefits to the management of MNES and biodiversity in Gungahlin. Secondly, the Plan would result in the establishment and management of a consolidated offset package rather than numerous small offsets which would typically be the result of multiple, ad hoc assessments through the referral process and possible subsequent approval under Part 9 of the EPBC Act. The establishment of small offsets on an ‘as required’ basis does not guarantee results or improvement to values at a landscape scale. Smaller scale offsets are also accompanied by greater administrative costs which are typically passed onto consumers resulting in an increased cost to housing and associated development without an equivalent gain. The establishment of a large, consolidated addition to the existing reserve system, with an associated financial component targeted at improving offset values would help to achieve environmental outcomes at a landscape scale while minimising the inefficiencies experienced through the smaller scale, site-by-site approach.

In summary, the strategic assessment of development has clear benefits over the alternative of numerous smaller release areas, including the potential to: minimise delays of individual referrals and economic impacts of delaying land release; reduce inefficiencies caused by site-by-site implementation of offsets; [page 289] achieve environmental outcomes for affected MNES and biodiversity conservation in general at a landscape scale; and enable consideration of the Australian Capital Territory’s history of protecting MNES, as relevant to Gungahlin where significant areas have been withdrawn from potential development and permanently protected for conservation. The Gungahlin plan was developed in the context of a strategy for land releases that had been developed in the 1970s. In a sense the economic and social parameters had been set and environmental considerations then had to be continuously fed into the land release proposals to avoid, mitigate and offset environmental impacts. In other words, considerations of sustainability were shaped by the proposal. It is arguable, however, that to properly inform

sustainability outcomes, strategies for ecosystems and biodiversity protection, and fire management, need to be the first strategies adopted prior to any decisions being made to release land. Otherwise proposals for consuming uses (that produce profits) tend to foreclose non-consuming uses (that do not produce profits). Another advantage of such an approach is that preserving pockets of threatened species in isolated developments, which tends not to demonstrate great ecological integrity, and is expensive to manage, can be replaced by a more integrated plan for ecosystems management. Future land release programs have an opportunity to do the sustainability planning upfront; developing a biodiversity and fire management strategy before feeding in triple bottom line data to identify suitable sites that offer the best possible outcomes, given the imperatives to provide affordable housing options within reasonable commuting distance while avoiding and mitigating impacts on biodiversity. The Objectives of the Indicative Land Release Programs 2015–2019,86 however, stress mostly the economic and social development of the territory, including ‘contributing to the vision’ of sustainable development. This does not suggest a fully integrated whole-ofgovernment strategic approach.

Project design 8.48 In Hub Action Group Inc v Minister for Planning (2008) 161 LGERA 136, Preston J remarked (at [3]) that implementing sustainability requires that the principles of ESD ‘inform project design, including the nature, scope, extent, life and other features of a proposed development and its location’. In this case an application for the construction and operation of a waste disposal and recycling facility was rejected on appeal because by siting the facility on prime agricultural land the development would impede sustainability by adversely affecting the long-term use of the land for sustained agricultural production. Project evaluation also required consideration of the effects of the proposed use of resources on the sustainable use of other resources. So although operating a waste facility in accordance with principles of waste minimisation and recycling might encourage more efficient [page 290] use of resources,87 siting the facility on prime agricultural land would compromise the ability of future generations to use and enjoy that land and its

qualities to the same degree as the present generation — the principle of intergenerational equity (see 8.74).

Codes, guidelines and standards 8.49 Setting out practical approaches to delivering sustainable outcomes may be progressed by way of mandatory codes,88 establishing clear standards for project design,89 or by voluntary guidelines,90 with in-built benefits for compliance. Codes and guidelines may set standards or benchmarks for measuring sustainability; for example, that emissions of greenhouse gases should be below stated thresholds; that a certain proportion of a product should be re-usable and/or recyclable; or that the use of water or energy should be constrained within stated limits. The UK Code for Sustainable Homes91 states that: In the short-term, Code compliance is voluntary but home builders are encouraged to follow Code principles set out in this publication because the Government is considering making assessment under Code standards mandatory in the future.

Compliance with higher levels of the Code are still voluntary, but compliance is being steadily made mandatory by ‘step-change’ increases set out in the building regulations. Design categories within the Code cover: (1) Energy and CO2 Emissions — Operational Energy and resulting emissions of carbon dioxide to the atmosphere (different minimum standards that must be met at each level of the Code). (2) Water — Internal and external water-saving measures specified (minimum standards that must be met at each level of the Code). [page 291] (3) Materials — The sourcing and environmental impact of materials used to build the home (minimum standards present). (4) Surface Water Run-off — Management of surface water run-off from the development and flood risk (minimum standards present). (5) Waste — Storage for recyclable waste and compost, and care taken to reduce, reuse and recycle construction materials (minimum standards present). (6) Pollution — The use of insulation materials and heating systems that do

not add to global warming. (7) Health and Wellbeing — Provision of good daylight quality, sound insulation, private space, accessibility and adaptability (minimum standards present for Code Level 6 only). (8) Management — A Home User Guide, designing in security, and reducing the impact of construction. (9) Ecology — Protection and enhancement of the ecology of the area and efficient use of building land. Government-sponsored codes trigger innovations in private enterprise and industry associations that seek to deliver, or better, the standards required by the codes.92 For example, it is claimed that the BREEAM (BRE Environmental Assessment Method) is the leading and most widely used EA method for buildings. It sets the standard for best practice in sustainable design, and has become the de facto measure used to describe a building’s environmental performance.93 Codes often use declared standards to pinpoint particular aspects of a project or activity. There are, for example, international standards for meeting sustainability parameters in building construction,94 for energy efficiency in residential dwellings and small commercial buildings,95 and for environmental and energy management generally.96 The Building Code of Australia requires (section J) reference to AS/NZS 4859 (materials for the thermal insulation of buildings), AS 2047 (windows in buildings), AS/NZS 3500 (plumbing and drainage), AS 3823 (performance of electrical appliances) and AS 1668 (use of ventilation and air-conditioning). Both the Building Code and the Plumbing Code have regulatory status in Australia. Compliance with guidelines may be made mandatory, giving a guideline more the effect of regulation, as discussed in Chapter 2.97 For example, s 143 of the Building Act 2004 (ACT) states: [page 292] Sustainability guidelines (1) The Minister must make guidelines (the sustainability guidelines) for the sustainable use of materials for building. (2) A builder must not use a building material in contravention of the sustainability guidelines.

Examples 1

The sustainability guidelines may prohibit the use of rainforest timber for new buildings or repairs other than repairs to things that already consist mainly of rainforest timber. If the

guidelines did this, a builder could use rainforest timber to repair window frames made of rainforest timber, but could not put in an extension containing rainforest timber. 2

The sustainability guidelines may allow the demolition of a building containing material from an unsustainable industry, eg rainforest timber. If the guidelines did this, a builder could demolish such a building without contravening the sustainability guidelines.

Standards need to reflect government policies 8.50 Standards for project design, whether contained in codes or otherwise, should clearly reflect and promote the preferred outcomes of government policies. Focusing on the stated outcomes of policies that underpin the production of standards should help to give purpose and definition to the standards. If this is not the case then there may appear to be an apparent mismatch between the aim of the policy and the standards expected to deliver it. Sometimes this is not the fault of the standards, which may have to tread a cautious line between ‘raising the bar’ on project design, and the technical realities and costs of so doing. Policies can be created in a ‘vacuum’ where pursuit of preferred outcomes is lauded without any practical acknowledgment of the means of achievement. One way of ‘bridging the gap’ between a policy and standard setting for individual projects is an ‘implementation plan’ or ‘action plan’. This may, for example, stipulate general performance standards and evaluation criteria for certain types of projects that require more ‘in-depth’ consideration of the practical considerations inherent in delivering the aims of the policy, including time–frames over which certain aspects of the policy may be achievable. On the other hand, neither policies nor action plans should be expected to descend to the level of individual project design. This means that there is usually a discretion built into the production of standards that recognises the practicalities of delivering the aims of the policies on which they rest. Too conservative an approach to costs and technical achievement may however fail to deliver the move away from ‘business as usual’ implicitly demanded by the policy. Whatever the stance taken by the standards setter, however, it should be made quite clear that the standards are based on the apparent dictates of the policies that underpin them, and new standards should be guided by this principle. It helps of course if the policy is itself underpinned by legislated objectives.98 This gives the policy a credence and probable longevity that may be lacking in policies

[page 293] that have no obvious connection with legislative initiatives, and this link may enable standards-setters to be rather more innovative and progressive in their approach. The objectives of declared government policies also need to be equally clear in focusing on the expected or preferred outcomes of those policies. Lack of clarity about the outcomes that are to be pursued by the policy understandably leads to hesitation and confusion in the mind of the standards-setter when addressing the likely implications that the production of the standards will have on the regulated community. Furthermore, reference of current and proposed new standards to all government agencies that might, or whose clients might, be affected by them should become the norm of standard-setting. A review of current standards, as well as referral of proposed new standards, to ascertain to what extent they reflect current government policies, and any action or implementation plans, should help to integrate standard-setting within the context of whole-ofgovernment strategic decision-making. In other words, standard-setting should become a whole-of-government exercise, not just left to the agency that develops, or has carriage of, those standards.

Green Certification Schemes 8.51 Green certification schemes can be useful for determining whether the body awarding the certification believes that materials or products are more ‘sustainable’, at least where the assessment methodology is clearly explained. This may help in assessing, and setting conditions for approval of, projects and activities. To be reliable and avoid ‘greenwashing’, certification schemes should incorporate thorough life-cycle analysis and independent verification by a reputable third party. For example, the Green Building Council of Australia assesses various other certification schemes for compliance with its own standards for ‘green star’ rating in respect of environmental design and construction of buildings and communities.99 Some of the more reputable certification schemes internationally include Green Seal,100 Ecologo,101 Compostable Logo102 and Green Guard.103

Translating sustainability into conditions of consent 8.52 One of the best ways of demonstrating approaches to real-life decision-making involving project design that incorporates principles of

sustainability is to look at recorded cases involving merits review. At this point, final conditions of consent will have incorporated information and advice received from: (1) the proponent of the project; (2) submitters or objectors; (3) any relevant environmental assessment; [page 294] (4) referral agencies; and (5) the original decision-maker. Since conditions of consent are often detailed and lengthy, they will not be set out at length, but the references set out below are examples that can be easily accessed and that demonstrate real-life decision-making undertaken by the Land and Environment Court of NSW after identifying and taking into account all relevant factors. In an urban setting, for example, extensive and detailed environmental consent conditions can be reviewed in the following cases: CSA Architects Pty Limited v Woollahra Council [2009] NSWLEC 1054 and Mosman Church of England Preparatory School v Warringah Council [2009] NSWLEC 1190 (demolition and/or erection of a building); and Fabcot Pty Limited v Byron Shire Council [2010] NSWLEC 1013 (conditions of consent for an on-site sewage management system). In Drake-Brockman v Minister for Planning (2007) 158 LGERA 349, the requirement that the proposal should demonstrate initiatives relative to ESD translated into specific consideration at the approval stage of public transport issues, standards for water use, wastewater reuse and energy consumption, and greenhouse gas emissions ratings. In Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101, conditions for project design required by a court order as a response to an offence involving an endangered ecological community (EEC) were set out as follows (Annexure A): The objective of this project is to develop and assess mechanisms to reduce or remove the risk of harm to the EEC in the course of forestry operations on State forest estate. The project aims to do this by removing or reducing uncertainty and ambiguity through improved identification on the ground by accurate spatial mapping of its occurrence where possible, or by the targeted application of field identification guidelines where mapping is not feasible.

1.

Diagnostic characteristics for the Endangered Ecological Community will be identified based on a review of the Scientific Committee determinations, and the advice of independent and suitably qualified botanical/ecological experts.

2.

A map will be produced for the Endangered Ecological Community where it occurs on State forest estate.

3.

Mapping will be done using ADS-40 high resolution imagery projected in a three dimensional GIS environment using specialised computer hardware (based on Maguire et al 2012) at an operationally practical scale based at the best available resolution.

4.

The imagery will be interpreted by specialist mappers, field validation and existing vegetation sample plots will be used to support the interpretation. The mapping will be coordinated by the EPA Forestry Section.

5.

If for some reason mapping is not possible the project will produce an accurate and reliable field identification guideline to allow for the identification of the Endangered Ecological Community on the ground during harvest planning, compartment mark-up ahead of the logging operation, and in compliance audits by the EPA.

[page 295] 6.

The accuracy of the map and its effectiveness to address the project objectives will be considered through a review process to be conducted as the last step of the project …104

Failure in an application for development consent to specify with sufficient certainty all design and operational aspects of a proposal may well lead to a refusal of consent; for example, Greenwood v Warringah Council [2013] NSWLEC 1119 (refusal of consent for expansion of landfill and waste recovery operation because of insufficient detail about essential matters such as exiting site contamination and remediation works, soil and water management investigations and plans, a stormwater management plan, a revegetation and rehabilitation management plan with detailed landscaping species and distances from stockpiles so as to minimise bushfire risk, weed removal and revegetation of embankments adjoining the natural bushland, a traffic management plan and a comprehensive operational plan). An alternative view postulates that issues of sustainable design, such as energy efficiency and waste management, are more appropriately considered at the building approval stage, rather than at the development assessment and approval stage. For example, a building approval would be accompanied by an energy efficiency rating that takes into account the materials and internal fittings used in construction. However, if the purpose of sustainability policy is to drive consideration of such issues at the earliest possible opportunity in the design of a project, then it is arguable that such considerations should not be deferred until a later stage of the approval process. One important function of conditional consents, often omitted, is to build into the consent process a ‘feedback loop’ to inform the decision-maker

whether conditions are working to encourage the outcomes sought by the consent. This has two advantages: the decision-maker can learn from the process, which will have advantages for future projects; and the operational environment of the current consent can be modified if provisions for ‘adaptive management’ are included as conditions of consent.

Adaptive management as a condition of development consent 8.53 One of the most effective ways in which caution or precaution can be used in real-life decision-making is to impose on development conditions for adaptive management; specifically, to require ongoing monitoring, assessment and regulation of impacts from risks or changes in the operating environment. Adaptive management enables a response to changes over time. By contrast, traditional decision-making would issue a development consent fixed at a particular point in time that would take no account of future changes in the operating environment; or indeed whether predictions made in an EA, on which consent might be based, prove accurate. Identifying and setting appropriate performance standards, [page 296] and monitoring and evaluating performance against such standards, is an essential feature of such an ‘adaptive management’ approach. Effectively this means that both the operator carrying out an activity and the regulatory agency that approved it will no longer be able to regard a case as ‘closed’ once a development consent or other relevant approval has issued. Both the licensed operator and the regulator will have ongoing duties to monitor the environmental outcomes of the licensed activity and respond effectively to risks and changes to the environment impacted by the activity. Conditions for adaptive management can also effectively establish ‘hold points’ that require the achievement of stipulated threshold standards before moving to the next step of a project. This is particularly valuable for projects that will be completed in stages over a number of years. For example, conditions of consent may require that after each step of a project, the operator and regulatory agency will re-assess the potential impact of the project, to ascertain whether environmental conditions are still appropriate; and deal with practical problems encountered, such as difficulties in

implementing conditions, effectiveness and budgetary constraints. This assessment will be used to assess the need for modifications to the project design and outcomes. In Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101 for example the conditions of consent required that: … after each step of the project, all involved parties will assess the project tracking, including problems encountered, resourcing, budgetary constraints and so forth. This assessment will be used to assess the need for modifications to the project design and outcomes. Any changes to the project scope will be agreed and formalised between all involved parties.

Identifying, setting, monitoring and evaluating performance standards is an essential feature of such an approach. In Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48, Preston CJ emphasised (at [148]) that: Adaptive management is a concept which is frequently invoked but less often implemented in practice. Adaptive management is not a ‘suck it and see’, trial and error approach to management, but it is an iterative approach involving explicit testing of the achievement of defined goals. Through feedback to the management process, the management procedures are changed in steps until monitoring shows that the desired outcome is obtained. The monitoring program has to be designed so that there is statistical confidence in the outcome. In adaptive management the goal to be achieved is set, so there is no uncertainty as to the outcome and conditions requiring adaptive management do not lack certainty, but rather they establish a regime which would permit changes, within defined parameters, to the way the outcome is achieved.

In this case, conditions were put in place to cover the possibility that hitherto unknown cave-dwelling stygofauna and troglofauna, which might be adversely impacted by blasting and quarrying operations, might be found on the subject site. Preston CJ also said (at [162]: Prudence would also suggest that some margin for error should be retained until all the consequences of the decision to proceed with the development plan, programme or project

[page 297] are known. This allows for potential errors in risk assessment and cost–benefit analysis. Potential errors are weighted in favour of environmental protection. Weighting the risk of error in favour of the environment is to safeguard ecological space or environmental room for manoeuvre … One means of retaining a margin for error is to implement a step-wise or adaptive management approach, whereby uncertainties are acknowledged and the area affected by the development plan, programme or project is expanded as the extent of uncertainty is reduced …

An adaptive management approach might involve the following core elements:

… monitoring of impacts of management or decisions based on agreed indicators; promoting research, to reduce key uncertainties; ensuring periodic evaluation of the outcomes of implementation, drawing of lessons, and review of adjustment, as necessary of the measures or decisions adopted; and establishing an efficient and effective compliance system: see ‘Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management’, in Appendix A to R Cooney and B Dickson (eds), Biodiversity and the Precautionary Principle, Risk and Uncertainty in Conservation and Sustainable Use, Earthscan, 2005 p 304, Guideline 12.

For example,105 in Ulan Coal Mines Ltd v Minister for Planning and Moolarben Coal Mines Pty Ltd [2008] NSWLEC 185, a condition on the approval for a coalmine — that the scale of mining operations should be adjusted to match available water supply — was held to be an appropriate precautionary and adaptive management response to dealing with residual uncertainties about future water supply. Similarly, in Wildlife Protection Association of Australia Inc and Minister for the Environment, Heritage and the Arts, Re [2008] AATA 717, the tribunal required that a plan for kangaroo culling should incorporate a trigger that would require the suspension of the harvest in any zone where departmental officers had reason to believe that the population within that zone had declined by 30 per cent (or 34 per cent in the case of red kangaroos).106 In Lawyers for Forests Inc v Minister for the Environment Heritage and the Arts [2009] FCAFC 114, it was argued that risks to the marine environment from the effluent of a proposed pulp mill should be met by application of the precautionary principle. In upholding the minister’s decision to approve the proposal, the Full Court said (at [47]): Although on the evidence no significant impacts were likely, the conditions were designed to deal with a residual risk from unexpected trends or events, and were imposed in accordance with the precautionary principle for the purpose of guarding against them by resort to monitoring and management.

[page 298] In Barrington — Gloucester — Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197, the court found that the Planning Assessment Commission (PAC) had accepted that it was: … implicit in the Department’s recommendation for approval, that it is possible to develop the gas field by adaptive management, using modern geological, hydrogeological and drilling techniques, with acceptable minimisation of risks. The proponent has proposed, and the Department’s conditions of approval require, the progressive development of the preliminary conceptual hydrogeological model supporting the application into a fully operational numerical model. This model will be based on the results of the more extensive drilling and geological testing which will accompany the gas field development. It will be an important tool in adaptive management. Since this development will be a complex task requiring the DG’s approval, the

Commission has included a requirement in the conditions of approval that the model be peer reviewed to assist the Department and relevant agencies in their assessment of the model, its outputs and its application in adaptive management. The conditions of approval also require extensive monitoring of groundwaters and surface waters for quantity and quality through the life of the project in order to continually assess any adverse or non-planned environmental impacts. ‘Hold Point’ conditions are specified in the approval conditions, should any such impacts become apparent, with the ‘Hold Points’ being established using risk analysis. These are important measures to ensure adaptive management action is initiated early enough to avoid any adverse impacts arising from unanticipated geological faults encountered during development of the gas field.

Conditions of development consent can also require covenants to protect sensitive ecological habitat and/or environmental management plans as a means of addressing and managing future risks.107 The uncertainties associated with how climate change will affect the environmental impacts of projects could be said to make adaptive management imperative.

Environmental assessment — projects 8.54 Instructions to consider ESD when designing a project or activity may be incorporated into the requirements for EA of a proposal. For example, in NSW the planning regulations require:108 … the reasons justifying the carrying out of the development, activity or infrastructure in the manner proposed, having regard to biophysical, economic and social considerations, including the principles of ecologically sustainable development.

One of the dangers of leaving considerations of sustainability to be applied at the project-specific stage is that the cumulative impacts of many similar decisions may be ignored when assessing the impacts of a particular proposal — the ‘death of a thousand cuts’ scenario. While an isolated decision may not, in itself, be particularly significant, [page 299] the combined effect of many similar decisions may very well prove unsustainable when assessed as a whole. For example, the cumulative impact of many isolated decisions is one of the reasons why hundreds of species of biodiversity and ecological communities are now on threatened species lists around the country. There is nothing as unsustainable as potential extinction. Remarkably, it has been held that decision-making under the EPBCA has no particular obligation to consider cumulative impacts.109 Some state legislation,

however, clearly does include such an obligation, at least at the stage of preparing an EA.110 Arguably, since a decision-making authority may effectively determine the content of an EIS, and may ask the applicant for further information about a proposal, these provisions enable the decision-maker to require, for example, that building design incorporate ESD initiatives, covering matters such as choice of building materials, water and energy efficiency, ventilation and lighting, and heating and cooling; and indicate how ongoing adaptive management of the project may be progressed. Referral entities also have powers to advance such considerations, particularly if the decision-maker may not approve a proposal against the advice of the referral entity except in restricted circumstances;111 or not at all.112

Government procurement 8.55 Government procurement policies can also adopt a strategic approach to encouraging sustainability. The National Green Leasing Policy (NGLP)113, for example, has been adopted by the Commonwealth, state and territory governments to leverage their position as major tenants of buildings to improve the environmental performance of buildings and lower greenhouse gas emissions. As occupiers of up to 30 per cent of commercial office space across Australia, such a procurement policy is bound to have a significant effect on the office market. In a standard commercial lease, obligations on both parties are generally fixed for the term of the lease. By contrast, targets in green leases must generally be maintained, or improved, over the term of the lease. These obligations are commonly to be shared by the parties. Much will depend upon the age of the building services in allocating responsibilities. The next step in ‘greening’ office buildings is to give more attention to improving the efficiency and sustainability of existing buildings, which make up the vast majority of commercial office buildings in Australia. Adopting green leasing policies should encourage greater awareness of sustainability issues when refurbishing and upgrading existing buildings. Retrofitting existing buildings also provides an opportunity to consider moving towards zero greenhouse gas emissions. The Zero Carbon Existing Buildings Plan114 [page 300]

claims that this can be achieved through a planned energy efficiency retrofit of the existing building stock, onsite renewable energy generation and electrifying current gas appliances.

The precautionary principle 8.56 The precautionary principle, as it is conceived in Australia,115 states: … where 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.

The principle is triggered therefore by the satisfaction of two conditions precedent: first, a threat of serious or irreversible environmental damage; and second, a lack of scientific certainty as to that damage.116 Unless these conditions precedent are present, the precautionary principle need not be applied,117 although a cautious, or precautionary, approach may nevertheless be employed so as to reduce the risk below the threshold that might trigger application of the precautionary principle.118 In the application of the precautionary principle, public and private decisions should be guided by: (a) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and (b) an assessment of the risk-weighted consequences of various options.119 [page 301] The principle has, not surprisingly, been described as ‘vague’ and ‘fuzzy’ because it does not define precaution or indicate how much precaution should be taken.120 It is therefore notoriously difficult to apply as a legal standard rather than as an approach to decision-making on the merits. Both the scientific and legal communities have attempted to grapple with the concept in order to try to give it some clearer, and practical, meaning.121

Threats of serious or irreversible environmental damage 8.57 The trigger for application of the precautionary principle is a threat of serious or irreversible environmental damage. Whether such a threat is real will depend on scientific evaluation. The requirement for a ‘threat’ might

exclude situations where environmental damage is a theoretical but highly unlikely possibility.122 Determining a threat may also mean assessing cumulative impacts.123 Opinions will not only differ on the nature and magnitude of possible damage, but also whether such damage is a threat, and if it is whether it could be described as either serious or irreversible.124 In Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133, Preston CJ said at [132]: [page 302] … the assessment of whether the threats are serious or irreversible will be enhanced by broadening the range of professional expertise consulted and seeking and taking into account the views of relevant stakeholders and rightholders. The former is important because of the inter-disciplinary nature of the questions involved. The latter is important because different judgments, values and cultural perceptions of risk, threat and required action play a role in the assessment process.

8.58 The law will treat a person as a credible expert witness if that person is an expert in the field of expertise and the opinion given by that witness is based on fact.125 Scientific witnesses may hotly dispute what is a fact. Inevitably, science will be called on to supply evidence (or testify to the lack of it) to support the application of the precautionary principle. Applying the precautionary principle to disputes is likely to change the focus of adjudicators to concentrating not so much on the weight of existing evidence but on the limits of scientific knowledge.126 Evaluation of possible damage as a threat will also depend on perceptions of risk, and this itself is an inexact science.127

Lack of full scientific certainty 8.59 Full scientific certainty is probably an unattainable goal.128 However, ‘once it is accepted that the threshold is something less than full scientific certainty, the question becomes how much less? Or turning the question around, how much scientific uncertainty need there be as to the threat of environmental damage before the second condition precedent to trigger application of the precautionary principle is fulfilled?’129 8.60 Traditionally, a civil action in law will be successful if it can be proved on the balance of probabilities that the respondent was responsible for the harm caused. Scientific certainty, however, requires higher standards of proof. The generally accepted scientific criterion for probability is based on a 95 per cent confidence level in an animal or human study.130 Scientists often point out that the law tends to perpetuate a common

misconception that the scientific method implies exactness and certainty — something that scientific research often cannot deliver, thus making it impossible to fulfil legal expectations [page 303] to which science can allocate responsibility or blame.131 This suggests that lack of full scientific certainty is likely to be the norm rather than the exception. In a survey conducted by Muirden and Bailey,132 the authors reported that ‘all ecology experts considered the court’s misunderstanding of the concept of uncertainty to be one of the most important reasons why fair trials could be compromised’; and that the adversarial system of conducting proceedings was in large part to blame: ‘experts following the scientific approach see the need to explain all uncertainty in their findings; lawyers see this as an opportunity to discount that evidence in cross-examination, if it may benefit their case’.133 On the other hand, disagreement among experts may be a good reason why a court or tribunal hearing a case should apply a precautionary approach.134 8.61 The precautionary principle as defined gives no clear guidance as to what degree of proof is required before application of the principle is triggered. As a scientific standard, of course, a more than 5 per cent uncertainty rating theoretically would trigger application of the principle. Applying this test of proof to application of the precautionary principle is appropriate in circumstances where the possibility of serious or irreversible environmental damage is legitimately raised. It would mean that the test would only not be applied if it could be demonstrated beyond reasonable doubt that there was no such possibility of harm. This would bring the legal and scientific standards of proof closer together. Nevertheless, this concept has to be translated into a workable and practical standard that is capable of administrative and judicial application. 8.62 In Leatch v National Parks & Wildlife Service & Shoalhaven City Council (1993) 81 LGERA 270 at 282, after considering the definition of the precautionary principle in the Protection of the Environment Administration Act 1991 (NSW) s 6(2)(a), Stein J concluded that it was: … directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious.

[page 304] In this case, the principle was applied in a merits appeal to refuse a licence

to take or kill an endangered frog in the context of a development proposal for a link road. Stein J held that the evidence in this case left in doubt key questions as to the population, habitat and behavioural characteristics of the giant burrowing frog and so he was ‘unable to conclude with any degree of certainty that a licence to “take or kill” the species should be granted’.135 8.63 In a subsequent case, however, Nicholls v Director-General, National Parks and Wildlife Service (1994) 84 LGERA 397 at 419, Talbot J made it clear that although applying the precautionary principle was a permissible approach in situations of evidential uncertainty, it was not (in its application to that case) a binding principle of law, and ‘while it may be framed appropriately for the purpose of a political aspiration, its implementation as a legal standard could have the potential to create interminable forensic argument. Taken literally in practice it might prove to be unworkable’. Talbot J noted that while such a cautious approach was ‘axiomatic, in dealing with environmental assessment’ the scientific evidence adduced in this case enabled the court to make an informed decision.136 Subsequently, however, in Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 at [54]-[55], Talbot J, while acknowledging that ‘since the publication of my judgment in Nicholls v Director-General, National Parks and Wildlife Service (1994) 84 LGERA 397, the precautionary principle, as a consequence of its formal adoption by various statutes, has become more than a “political aspiration”’ concluded that ‘in the present case there is no real threat of irreversible environmental damage but nevertheless the decision-making process needs to take account of appropriate measures to prevent environmental degradation. Such an approach is axiomatic to the proper consideration of any environmental issue’. 8.64 The ‘cautious approach’ was also endorsed by Pearlman J in Greenpeace Australia Ltd v Redbank Power Co Pty Ltd (1994) 86 LGERA 143, in which Greenpeace urged that application of the precautionary principle should lead the court to refuse development consent for a power station because air emissions would exacerbate the greenhouse effect. Pearlman J responded that ‘application of the precautionary principle dictates that a cautious approach should be adopted in evaluating the various relevant factors in determining whether or not to grant consent; it does not require that the greenhouse issue should outweigh all other issues’.137 Neither the Framework Convention on Climate Change, the National Greenhouse Response Strategy nor the IGAE prohibited

[page 305] energy development that would emit greenhouse gases. It was therefore appropriate that the weighting to be given to these various factors should be determined by those given statutory authority to decide those questions. It was ‘a matter of government policy and it is not for the court to impose such a prohibition’.138 Although Pearlman J, like Talbot J in Nicholls, indicated general agreement with Stein J that a cautious approach was appropriate, Pearlman J appeared to place this cautious approach in the context of the application of the precautionary principle. The distinction between the approach adopted by Talbot J and the remarks of Pearlman J may be explained by the fact that Talbot J concluded that he was not dealing with a situation of scientific uncertainty, while Pearlman J clearly was, but the weight of evidence signalled a minor degree or enhancement of risk and therefore application of the principle was not considered to influence the outcome in the sense that an approval that would have otherwise been granted should be refused. 8.65 In Conservation Council of South Australia v Development Assessment Committee and Tuna Boat Owners Association (No 2) [1999] SAERDC 86, where development of a tuna farm was rejected because of uncertainty over the possible environmental impact of frozen pilchards imported as a food source,139 the ERD Court of South Australia said (at 22): There would appear to be general agreement among the authors of articles on the precautionary principle that it was developed in response to the recognition, based upon observation, that the environment could not assimilate all the consequences of activities impacting upon it. Implicit in this recognition is an acknowledgment that science and the scientific method have limitations. Because of the limitations, it is unlikely that the full consequences of the impact of a particular act or activity upon the environment can be known in advance. The scientific process involves deriving knowledge from the testing of a hypothesis. A number of biases have been identified in the process, giving rise to comments such as ‘the normal process of scientific reasoning is not as logically water-tight as one might imagine’ (David Fisk, ‘Environmental Science and Environmental Law’ 10 J Env L 3 (1998)). The scientific method does not necessarily give the quality of certainty to the opinion or assessment of a scientist. Indeed, one writer has suggested that a scientific opinion might be best evaluated for reliability by testing it against seven types of uncertainty he identified as being likely to be found in any scientific assessment or opinion, namely conceptual uncertainty, measurement uncertainty, sampling uncertainty, mathematical modelling

[page 306] uncertainty, causal uncertainty, testing uncertainty and communicative and cognitive uncertainty (P Brad Limpert, ‘Beyond the Rule in Mohan: A New Model for Assessing the Reliability of Scientific Evidence’ 54 Univ Toronto L Rev (1998)). Thus, the inherent uncertainty or bias in the scientific method combined with (generally speaking) a perennial lack of resources and a consequential lack of data to assist scientists, leads inevitably to the conclusion that there is

likely to be an incomplete understanding of the full extent of the environmental impacts of any particular act or activity proposed. That prospect, supported by empirical observations gathered world-wide, led to the development of the precautionary principle as a commonsense approach to avoid or minimise serious or irreversible harm to the environment.

In Queensland, both the Planning and Environment Court and the Land Court have also endorsed the cautious, or a precautionary, approach, in the absence of, or to avoid, any circumstances that might trigger the precautionary principle.140

The precautionary principle in practice 8.66 In BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399, a case in which a subdivision proposal was refused by the court because of unacceptable impacts on important wetlands, bushland and threatened species, McClellan J said that where there is a lack of scientific certainty, the precautionary principle must be utilised. As Stein J said in Leatch, this will mean that the decision-maker must approach the matter with caution but will also require the decision-maker to avoid, where practicable, serious or irreversible damage to the environment. McClellan J further went on to say in Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 at 178, that the statutory recognition of the precautionary principle has made it ‘… a central element in decision making process and cannot be confined. It is not merely a political aspiration but must be applied when decisions are being made under the Water Management Act and any other Act which adopts the principles’;141 and that the minister was required to be informed by the principle when deciding to make a water management plan.142 In BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210, the question confronting Pain J was whether the precautionary principle had application to a situation where no final decision was being made as to whether development consent ought be granted, but rather a step in the assessment process was being considered; namely, whether a SIS was required. Following the lead given [page 307] by McLellan J and the ERD Court of South Australia, her Honour concluded that the principle was ‘not merely confined to the final decision as to whether development consent, a licence or approval ought be granted. Rather,

decision-makers must consider the precautionary principle whenever decisions are being made under an Act that adopts the precautionary principle as is the case here’. Under the EPBCA, the minister must have regard to the precautionary principle in making a wide range of decisions, but only to the extent the minister can do so consistently with other provisions of the Act.143 It has been held that this provision is intended to authorise measures to prevent environmental degradation where there are threats of serious or irreversible environmental damage even though the minister lacks full scientific certainty.144 Provisions imposed, for example, might lawfully require monitoring and management to account for the possibility of residual risks from unexpected trends or events.145 This concept has to be translated, of course, into a workable and practical standard that is capable of administrative and judicial application. For example, in SHCAG Pty Ltd v Minister for Planning and Infrastructure [2013] NSWLEC 1032, an appeal against a decision allowing the continued operation of a colliery, the court said (at [89–90]): We are satisfied that the precautionary principle is activated as the risk of significant environmental harm currently remains uncertain, based on the evidence before us, as the proposal may result in the following: 1.

the dewatering of the Hawkesbury Sandstone groundwater aquifer, which would change its ecology and may prevent future access to bore water for irrigation purposes; and/or

2.

an adverse impact on the health of the Wingecarribee River by discharging pollutants in the water discharged from the mine.

In Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133, Preston J made a careful analysis of how the precautionary principle should be applied in practice:146 (a) the application of the precautionary principle and the concomitant need to take appropriate precautionary measures is triggered by the satisfaction of two conditions precedent; first, a threat of serious or irreversible environmental

[page 308] damage; and second, a lack of scientific certainty as to that damage (at [128]). These conditions are cumulative. Once both of these conditions or thresholds are satisfied, precautionary measures should be taken to avert the anticipated threat of environmental damage, but they should be proportionate (at [128]); (b) it is not necessary that serious or irreversible environmental damage has actually occurred, it is the threat of such damage that is required. Moreover, the environmental damage threatened must attain the threshold of being serious or irreversible (at [129]). If there is no threat of serious or irreversible environmental damage, or if there is no (or no considerable) scientific uncertainty, the precautionary principle will not apply (at [130]–[149]);

(c) if the two conditions precedent or thresholds are satisfied, the precautionary principle will be activated. At this point there is a shifting of the evidentiary burden of proof and a decision maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the development (at [150]–[155]); (d) the precautionary principle permits the taking of preventative measures without having to wait until the reality and seriousness of the threats become fully known (the concept of preventative anticipation) (at [156]); (e) the precautionary principle should not be used to try to avoid all risks. A zero risk precautionary standard is inappropriate. Similarly the precautionary principle cannot be based on a purely hypothetical approach to the risk, founded on mere conjecture which has not been scientifically verified (at [157]–[160]); (f)

the type and level of precautionary measures that will be appropriate will depend on the combined effect of the degree of seriousness and irreversibility of the threat and the degree of uncertainty. The more significant and more uncertain the threat, the greater degree of precaution required. Some margin for error should be retained until all of the consequences of the decision to proceed with a development are known. One means of retaining a margin for error is to implement a step-wise or adaptive management approach, whereby uncertainties are acknowledged and the area affected by the development is expanded as the extent of the uncertainty is reduced (at [161]–[165]);

(g) the precautionary principle embraces a concept of proportionality. That is to say measures should not go beyond what is appropriate and necessary in order to achieve the objectives in question. Where there is a choice between several appropriate measures, recourse should be had to the least onerous measure. A reasonable balance must be struck between the stringency of the precautionary measures, which may have associated financial, livelihood and opportunity costs, and the seriousness and irreversibility of the potential threat (at [166]–[178]); (h) the precautionary principle, where triggered, does not necessarily prohibit the carrying out of development until full scientific certainty is attained. Were it otherwise it would result in a ‘paralysing bias’ in favour of the status quo and would ban ‘the very steps that it requires’ (at [179]–[181]); and (i)

the precautionary principle is but one of the set of principles of ESD. It should not be viewed in isolation but rather as part of the package of ESD principles (at [182]–[183]).

A good example of translating this approach into practical decision-making is Hamilton v Sutherland Shire Council [2012] NSWLEC 1015, in which the commissioner [page 309] had to determine whether a particular tree should be pruned or removed as a hazard in circumstances where the tree was also habitat for native wildlife (at [65–73]): The application of the principle and therefore the need to take precautionary measures requires two conditions to be satisfied: a threat of serious or irreversible environmental damage, and scientific uncertainty of the damage [128]. At [130], threats to be considered may be direct, indirect, incremental, cumulative, and or the

result of other actions. At [131] factors to be considered in assessing the seriousness of a threat are listed; at [132]–[135] the assessment process requires appropriate scientific input. At [138] Preston CJ states: The precautionary principle does not apply, and precautionary measures cannot be taken, to regulate a threat of negligible environmental damage … In regards to the applicability of the first test to the matter before me, while it may be argued by some that the removal of one dead tree with perhaps only one hollow is negligible or at least not serious or irreversible environmental damage, it could also be argued that it is a serious threat when the cumulative impacts are considered. The impact of urban development on remnant bushland is often described as ‘death by a thousand cuts’. Often, most at risk are large old trees that may be perceived as posing a risk to safety. As hollow formation takes many years, it is often only in these older trees that hollows are found. The listing of ‘loss of hollow-bearing trees’ and ‘removal of dead wood and dead trees’ as key threatening processes under the TSC Act, significantly elevates the importance of retaining dead trees with hollows wherever possible. The many references in SSDCP to the need to retain hollow-bearing trees indicate to me that council considers the removal of such trees to be a serious threat to local biodiversity and to the success of its Greenweb strategy. Therefore, I find that there is a threat of serious environmental harm and thus the second test of ‘full scientific certainty’ must be considered. Returning to Telstra, ‘a lack of full scientific certainty’ is considered at [140]–[149]. Questions to be considered include: the sufficiency of any evidence; the level of uncertainty — perhaps due to methodology; the potential to reduce the uncertainty within a reasonable time frame; and the level of certainty required in the context of the magnitude of the environmental damage. In the matter before me, it has to be said that neither party has established, with any modicum of certainty, that the hollow is used by native fauna, or indeed if it is capable of being used, as no aerial inspections have been undertaken nor have any targeted surveys been carried out. Similarly, it has not been adequately established if there are any other hollows present that cannot be observed from the ground. The applicant assumes that the trunk has a high proportion of sound wood that would limit the formation of future hollows, but there is no evidence of this. While there are reports of incidental sightings of birds and a perhaps a possum, this evidence cannot be verified and therefore cannot be relied on. The applicant proposes the installation of nest boxes in other trees. As each species that nests in hollows has very specific spatial requirements, the appropriate selection and positioning of nest boxes requires some specialist knowledge as to the species likely to be displaced from the tree to be removed. While some assumptions may be made from desktop searches of wildlife databases, the spatial scale of those resources may be less applicable to local areas of bushland and may be limited to listed species and not the broader range of fauna that may require protection now to avoid eventual listing.

[page 310] On this basis, there is clearly insufficient evidence to determine whether the removal of the tree will result in the loss of current habitat for an unknown number of species. In this regard I find Mr Fraser’s conclusions (given at [17]) to be focussed on ‘significant’ habitat and ‘significant’ species rather than the broader consideration of ‘habitat’. Because of the methodology, that is, a limited ground level inspection, the level of uncertainty is high. I consider that the potential to reduce the level of uncertainty within a reasonable time frame exists if the dangerous limbs are removed and the targeted survey recommended by the parties’ ecologists is implemented. The results of the survey would not only inform a decision to keep or remove the trunk but, anticipating that it may eventually be removed on safety grounds, it would also inform the appropriate choice and location of nest boxes. As I find that the two conditions or threshold tests are satisfied, the precautionary principle is

activated.

8.67 In merits appeals, as Stein J said in Leatch, adopting and applying a precautionary approach is hardly likely to be legally ‘irrelevant’ to decisionmaking; and courts and tribunals throughout Australia hearing merits appeals, and sometimes legal challenges to decision-making, have been prepared to apply, or endorse the application of, the precautionary principle to either refuse an application for consent, or add conditions to a consent. Examples include Northcompass Inc v Hornsby Shire Council [1996] NSWLEC 213 (scientific uncertainty about the environmental impact of a proposed bioremediation plant for the treatment of green waste); Cabbabe v Baw Baw Shire Council [2001] VCAT 747, Skye Environmental Services Pty Ltd v Frankston City Council [2004] VCAT 682 and McDonald v Moorabool Shire Council [2005] VCAT 1764 (threats to potable water quality); Brunsdon v The Council of the City of Wagga Wagga [2003] NSWLEC 168 (concerns about odour, waste and effects of increased rainfall on a proposed piggery); Simmons v Esk Shire Council [2006] QPEC 101 (threats to water quality and odour); Lindner v Regional Council of Goyder (No 2) [2006] SAERDC 67 (impacts on natural water resources from overuse); MD Bleasel v Kingborough Council [2007] TASRMPAT 124 (effects of floating pontoon on environmentally sensitive coastal zone); Green and Australian Fisheries Management Authority [2008] AATA 1074 (refusal to depart from precautionary approach outlined in fisheries management policy); Castle v Southern Rural Water [2008] VCAT 2440 and Alanvale Pty Ltd v Southern Rural Water [2010] VCAT 480 (uncertainties over impacts on groundwater); Gippsland Coastal Board v South Gippsland Shire Council (No 2) [2008] VCAT 1545 and Myers v South Gippsland Shire Council [2009] VCAT 1022 (severity of storm events coupled with rising sea levels created a reasonably foreseeable risk of inundation of the subject land); Rozen v Macedon Ranges Shire Council [2009] VCAT 2746 and Simpson v Ballarat City Council [2012] VCAT 1399 (threats to potable water supplies); Environment East Gippsland Inc v VicForests [2010] VSC 335 (refusal to allow logging of native forests until further surveys done to establish presence or otherwise of various threatened species); Burtenshaw v Dunn [2010] QLC 70 (mining leases each subject to a special condition that no chemicals must be used in the processing and separation of the mined material in order to prevent contamination of water supplies); Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2011] WASAT 160 (refusal of subdivision unless and until adequate air quality monitoring for potential [page 311]

dust impacts completed and reviewed) and Parker v Minister for Sustainability, Environment, Water, Population and Communities [2012] FCAFC 94 (refusal to allow importation of a certain species of cat). 8.68 It is clear, however, that in using the precautionary principle in this way the response should be proportionate to the risk,147 and that ‘the precautionary principle, where triggered, does not necessarily prohibit the carrying out of a development plan, program or project until full scientific certainty is attained’.148 Neither does it involve placing an onus upon the applicant to extinguish, with absolute certainty, the risk of environmental harm,149 or indeed dictate any particular course of action.150 It has however been said that ‘the principle requires decision-makers to be accountable and justify their reasons for a decision, based on science and a bona fide exploration of the possibilities of alternative actions’.151 On the other hand, in the face of material supporting a conclusion of uncertainty, it may well be appropriate to prohibit specified actions pending further consultation or reference to other expert advice.152 It is also clear, however, that the precautionary principle is often raised in cases in which it is probably not appropriate; in other words, it is being used by many applicants as a generic reason for asking for refusal of consent, and consequently being rejected for that reason.153 The concept of ‘caution’ rather than ‘precaution’ is probably more apposite for these cases.154 The precautionary principle is not just a project-based tool. It can, and perhaps should much more often, be used as a tool in drawing up strategic assessments. [page 312]

The burden of proof 8.69 In law, the burden of proving a case generally falls on the applicant or plaintiff, the person who, for example, is alleging that a licence should or should not be granted for an activity. In environmental cases, this has generally translated into a requirement that if a proponent of development has received approval from a regulatory authority to proceed with a proposal, anyone challenging that ‘right’ must prove why the licence should be refused, or why additional conditions should be imposed. In other words, the burden of proof falls on the objector to show why the development should not proceed in accordance with the licence. The introduction of the precautionary

principle suggests a fundamental shift in the ‘burden of proof’ associated with the granting of consent. 8.70 As a legal test, application of the precautionary principle would require an objector to a proposal to bring forward legitimate scientific evidence that raised the possibility of serious or irreversible environmental harm. The proponent would then be required to disprove that possibility beyond reasonable doubt, or at least indicate how the threat would be managed in order to convince the decision-maker to allow the activity to proceed. This approach means that application of the precautionary principle effectively reverses the normal burden of proof from an objector to the proponent of an activity. In Conservation Council of South Australia v Development Assessment Committee and Tuna Boat Owners Association (No 2) [1999] SAERDC 86, the ERD Court of South Australia expressed the view (at [24]) that: … it cannot be the case that the appellant must prove that the development will threaten serious or irreversible environmental damage … Because of the inherent uncertainty in a scientific opinion, an appellant is unlikely to be able to show that a particular development would be likely to result in serious or irreversible damage to the environment.

Once an appellant had established a likelihood or possibility that serious or irreversible environmental harm might occur, then (at [25]): … the proponent would have to satisfy the burden of proof by evidence as to the likely consequences of the proposal, including scientific evidence (with its limitations), evidence as to the proposed management regime and measures, and evidence to assist the court in the assessment of the risk-weighted consequences of the proposal.

8.71 In Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 at [150]–[152], Preston CJ put forward a similar approach: If each of the two conditions precedent or thresholds are satisfied — that is, there is a threat of serious or irreversible environmental damage and there is the requisite degree of scientific uncertainty — the precautionary principle will be activated. At this point, there is a shifting of an evidentiary burden of proof. A decision-maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the economic or other development plan, programme or project …

[page 313] The rationale for requiring this shift of the burden of proof is to ensure preventative anticipation; to act before scientific certainty of cause and effect is established. It may be too late, or too difficult and costly, to change a course of action once it is proven to be harmful. The preference is to prevent environmental damage, rather than remediate it. The benefit of the doubt is given to environmental protection when there is scientific uncertainty. To avoid environmental harm, it is better to err on the side of caution …

The function of the precautionary principle is, therefore, to require the decision-maker to assume that there is, or will be, a serious or irreversible threat of environmental damage and to take this into account, notwithstanding that there is a degree of scientific uncertainty about whether the threat really exists.155

Applying a cautious or precautionary approach to environmental risks might suggest that, in any case, the burden should be on the proponent to establish that potential risks have been evaluated and managed in the design of a proposal. In CSR Ltd v Caboolture Shire Council [2001] QPELR 398, Quirk DCJ said about the precautionary principle: This statement of principle does not, as I read it, depart in any important way from the approach which this court has taken conventionally with such matters prior to the statements becoming part of the legislation. It has generally been held that the appellant faces a burden of establishing, on the balance of probabilities, that when a particular activity might pose a risk of environmental harm, those risks have been evaluated and measures intended to provide protection from environmental harm are feasible and likely to be put in place.

8.72 To a criminal lawyer, accustomed to seeing cases decided on proof of innocence or guilt, which depends on the evidence satisfying a theoretical standard, the reversal of the onus of proof would be significant. However, in the context of governmental decision-making lawfully determined by exercise of discretion, this theoretical reversal of the burden assumes much less significance. This is because, as explained above, the precautionary principle is but one factor to which the decision-maker must have regard. Legislation does not require the principle to be the determinative factor in decision-making. Only where a failure to satisfy such a burden is palpably ignored by a decision-maker might the reversal of the burden assume greater significance, because then it will not be the merits of a decision taken in lawful exercise of power that are under scrutiny, but the very legality of the decision which is called in question.156 [page 314] 8.73 In Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133, Preston J made a careful analysis of how the precautionary principle should be applied in practice: (a) the application of the precautionary principle and the concomitant need to take appropriate precautionary measures is triggered by the satisfaction of two conditions precedent; first, a threat of serious or irreversible environmental damage; and second, a lack of scientific certainty as to that damage (at [128]). These conditions are cumulative. Once both of these conditions or thresholds are satisfied, precautionary measures should be taken to avert the anticipated threat of environmental damage, but they should be proportionate (at [128]); (b) it is not necessary that serious or irreversible environmental damage has actually occurred, it is the threat of such damage that is required. Moreover, the environmental damage threatened must attain the threshold of being serious or irreversible (at [129]). If there is no

threat of serious or irreversible environmental damage, or if there is no (or no considerable) scientific uncertainty, the precautionary principle will not apply (at [130]–[149]); (c) if the two conditions precedent or thresholds are satisfied, the precautionary principle will be activated. At this point there is a shifting of the evidentiary burden of proof and a decision maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the development (at [150]–[155]); (d) the precautionary principle permits the taking of preventative measures without having to wait until the reality and seriousness of the threats become fully known (the concept of preventative anticipation) (at [156]); (e) the precautionary principle should not be used to try to avoid all risks. A zero risk precautionary standard is inappropriate. Similarly the precautionary principle cannot be based on a purely hypothetical approach to the risk, founded on mere conjecture which has not been scientifically verified (at [157]–[160]); (f)

the type and level of precautionary measures that will be appropriate will depend on the combined effect of the degree of seriousness and irreversibility of the threat and the degree of uncertainty. The more significant and more uncertain the threat, the greater degree of precaution required. Some margin for error should be retained until all of the consequences of the decision to proceed with a development are known. One means of retaining a margin for error is to implement a step-wise or adaptive management approach, whereby uncertainties are acknowledged and the area affected by the development is expanded as the extent of the uncertainty is reduced (at [161]–[165]);

(g) the precautionary principle embraces a concept of proportionality. That is to say, measures should not go beyond what is appropriate and necessary in order to achieve the objectives in question. Where there is a choice between several appropriate measures, recourse should be had to the least onerous measure. A reasonable balance must be struck between the stringency of the precautionary measures, which may have associated financial, livelihood and opportunity costs, and the seriousness and irreversibility of the potential threat (at [166]–[178]); (h) the precautionary principle, where triggered, does not necessarily prohibit the carrying out of development until full scientific certainty is attained. Were it

[page 315] otherwise it would result in a ‘paralysing bias’ in favour of the status quo and would ban ‘the very steps that it requires’ (at [179]–[181]); and (i)

the precautionary principle is but one of the set of principles of ESD. It should not be viewed in isolation but rather as part of the package of ESD principles (at [182]–[183]).

Caution and prevention 8.74 The precautionary principle is theoretically triggered by a threat of serious or irreversible harm. Below that threshold it is nevertheless, as a number of cases have established, ‘axiomatic’ that a cautionary approach should be adopted in dealing with environmental risks.157 In Dixon and Australian Fisheries Management Authority and Executive Director of Fisheries

Western Australia and Northern Territory of Australia [2000] AATA 242, the tribunal suggested that Australian Fisheries Management Authority (AFMA) could use a precautionary approach even if the threshold was not met, at least so long as AFMA was pursuing other mandated statutory objectives. While triggering the threshold might require a precautionary approach, failure to trigger the threshold did not necessarily mean the principle could not be used. And if, as the court said in CSR Limited v Caboolture Shire Council [2001] QPELR 398, this statement of principle does not depart in any important way from the approach that the court has taken conventionally with such matters, does the distinction between a cautionary or precautionary approach, and the precautionary principle per se, serve any worthwhile purpose, particularly where environmental risks are subject to evaluation in project design and conditions of consent that require monitoring and adaptive management? In Queensland, for example, both the Planning and Environment Court and the Land Court have endorsed the cautious, or a precautionary, approach, in the absence of, or to avoid, any circumstances that might trigger the precautionary principle.158 In other words, exercising caution in all plans and projects that might impact on the environment would help to prevent unnecessary or avoidable adverse impacts (a preventative approach). The distinction between precaution and prevention is essentially that prevention will apply to known, likely or anticipated risks, while precaution is applied to potential, uncertain or hypothetical risks. Both approaches would seem vital to proper assessment of actual or potential environmental impacts. Anticipation and prevention of environmental harm (a proactive, preventative response) would seem to be better than any attempt after the event to make amends (a reactive response). For example, requiring policies, plans and projects to run the gauntlet of EA before being approved would be a cautionary approach that allows for assessment and evaluation of potential environmental impacts before they occur; and [page 316] enables prevention or mitigation of harm ahead of it occurring. A proactive approach would include a risk-based assessment to identify direct and indirect impacts, and their consequences, that would result from any proposed action. By its very nature, a preventative approach must also take into account possible cumulative impacts, a feature not very well expressed in existing environmental laws. Should a preventative approach be made a legal requirement for the

development of all policies, plans and projects? Is the precautionary principle still a useful tool to employ in this regard; or, given that the precautionary principle has a high trigger point, are concepts of caution and prevention a better way to instil a more proactive assessment of all potential environmental impacts of policies, plans and projects? In the approach to the precautionary principle in Europe there is no mention of ‘serious or irreversible harm’; the principle is a risk management tool,159 the core concepts of which are risk, damage and proportionality.160 On the other hand, the principle has been activated largely in cases involving risks to human health rather than the environment.161 It has been more difficult to persuade the European Court of Justice to apply the principle in ‘environmental’ litigation, though the arguments mostly have not been strong.162 In responses to risks, the Europeans distinguish more between prevention and precaution. The distinction is essentially that prevention will apply to known, likely or anticipated risks, while precaution is applied to potential, uncertain or hypothetical risks.163 Although the origin of the concept of the precautionary principle, the German concept of vorsorge, merges concepts of prevention and precaution, German case law nevertheless seems to have accepted this distinction.164 In Australia, the distinction between a cautionary and precautionary approach is necessary only because of the threshold of ‘serious or irreversible harm’. A cautionary approach is in fact consistent with both a preventive and a precautionary approach. In Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 at [156], Preston CJ acknowledged that the precautionary principle ‘permits the taking of preventative measures without having to wait until the reality and seriousness of the threats become fully known’. Would it be more useful for practical decision-making if prevention and precaution were to replace reliance on caution and precaution? Or at least if legislation and policy emphasised the need for a cautionary approach that triggers a response in decision-making that is appropriate and proportionate to the likelihood of the [page 317] risk eventuating and the severity of the impact if it does? An ascertainable, though uncertain, risk of ‘serious or irreversible harm’ would then simply be met by an appropriate risk-weighted response. Would prevention and precaution have more to offer decision-makers in practical responses to environmental risk-taking than caution and precaution?

Intergenerational equity 8.75 The principle of intergenerational equity is inextricably linked with sustainable development. The principle provides that current generations hold the environment in trust for the benefit of future generations. There exists a moral and ethical obligation to hand over to subsequent generations a stock of environmental wealth comparable to that which was handed on to us by our forebears. Obviously, it is not possible to absolutely identify the needs of future generations, but what we probably can be confident of are those needs that are based in access to biological resources, particularly in terms of safety and survival. 8.76 One way of thinking about this is that we should try to use the interest produced by our assets while keeping the capital intact, or that ‘the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations’.165 The proposed theory of intergenerational equity postulates that all countries have an intergenerational obligation to future generations as a class, regardless of nationality. This is necessary because the condition of the planet will have a profound impact on the welfare of our descendants. There is increasing recognition that while we may be able to maximise the welfare of a few immediate successors, we will be able to do so only at the expense of our more remote descendants, who will inherit a despoiled nature and environment. Our planet is finite, and we are becoming increasingly interdependent in using it. Our rapid technological growth ensures that this dependence will increase. Thus our concern for our own country must, as we extend our concerns into longer time horizons and broader geographic scales, focus on protecting the planetary quality of our natural and cultural environment. This means that, even to protect our own future nationals, we must co-operate in the conservation of natural and cultural resources for all future generations.166

In the Philippines case of Minors Oposa v Secretary of State of the Department of Environment and Natural Resources,167 the plaintiffs successfully convinced the Supreme Court to grant standing to the plaintiffs to represent themselves and the interests of future unborn citizens, claiming that the issue of forest licences contravened a provision of the Constitution that guaranteed a public right to a balanced and healthful ecology. [page 318] 8.77 This principle is of particular relevance when considering applications for projects that might exacerbate the effects of climate change; for example, by the release of greenhouse gases. In Gray v Minister for Planning [2006] NSWLEC 720, the applicant successfully challenged the failure of the decision-maker to address scope 3 emissions of greenhouse gases (emissions

resulting from burning coal) in considering an application for approval of a large coalmine.168 The precautionary principle and intergenerational equity were cited as elements of ESD of particular relevance to this decision. While the court’s finding in this case that ESD was a mandatory consideration was later overruled in Minister for Planning v Walker (2008) 161 LGERA 423, the subsequent application of the principles espoused in Walker would seem to support the finding that the substance of these principles of ESD should have been considered as relevant elements of the ‘public interest’;169 and in any case the requirement to consider ‘downstream emissions’ was subsequently embodied as a legal requirement in the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW) s 14(2). Consequently, detailed requirements for analysis of impacts of proposals by emissions of greenhouse gases are generally prescribed as mandatory considerations for EA of all relevant projects; in which case challenges to projects based upon greenhouse emissions, to the extent that they cannot be challenged in law under normal processes of judicial review,170 are likely to concentrate more upon the conditions under which such projects should proceed.171 8.78 Intergenerational equity is also clearly a factor in considering applications for development that might impact on heritage, particularly Aboriginal heritage. For example, it was said in Anderson v Director-General, Department of Environment and Conservation (2006) 144 LGERA 43, that failure to have regard to the significance of Aboriginal objects in a case where an application had been made for the destruction of those objects would be an infringement of the principle of intergenerational equity, and that was a relevant consideration before issuing a consent. Following this case, the respondent requested the applicant to provide further assessment of the cumulative impact of development in the area on Aboriginal sites. In a subsequent case, following the respondent’s analysis of these matters and grant of consent, Anderson v Director-General, Department of Environment and Climate Change (2008) 163 LGERA 400, the New South Wales Court of Appeal accepted that [page 319] intergenerational equity was a relevant consideration for the decision-maker where the legislative context of the decision-making required that the objects of the NPWA, expressed in s 2A, were ‘to be achieved by applying the principles of ecologically sustainable development’.172 Tobias JS said (at [85]) that ‘it is difficult to see how inter-generational equity … can be properly

considered without the assessment of the archaeological and cultural significance of the Aboriginal objects on the one hand and the cumulative effect or impact which their destruction may have on the other’. However, ‘inter-generational equity requires an evaluative judgment as to these matters for otherwise … all Aboriginal objects found on land must be conserved for the benefit of future generations of the traditional custodians of that land. That cannot be so’. In the event, the respondent was held to have properly evaluated these matters before giving consent under s 90 of the Act to destruction of, or damage to, Aboriginal objects.173 In F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) (2007) 158 LGERA 250 at [60], Biscoe J also remarked that environmental impact statements (EIS) and heritage impact statements both served the principle of intergenerational equity. ‘Once a heritage listed building is demolished it is lost forever to future generations. A photograph of it in an archive is but a reminder of what once was.’ The concept of intergenerational equity also clearly influenced Preston J in determining merits appeals that have encouraged the adoption of alternative sources of energy (Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59) and protected prime agricultural land from development (Hub Action Group Inc v Minister for Planning [2008] NSWLEC 116).174 8.79 Interestingly, the concept of intragenerational equity, that is, questions of equity within the present generation, is not addressed in much legislation that introduces concepts of ESD into Australian law, although arguably the reference to ‘equitable considerations’ in the EPBCA s 3A is intended to encompass this principle, while the Victorian legislation referred to at 8.20 does specifically include this principle.

Conservation of biological diversity and ecological integrity 8.80 The foreword to the Global Biodiversity 3 report (2010) makes the point that ‘to tackle the root causes of biodiversity loss, we must give it higher priority in all areas [page 320] of decision-making and in all economic sectors … conserving biodiversity

cannot be an afterthought once other objectives are addressed — it is the foundation on which many of these objectives are built. We need a new vision for biological diversity for a healthy planet and a sustainable future for humankind’.175 8.81 In the definition of ESD adopted in Australia, conservation of biological diversity is expressed to be a ‘fundamental consideration’ in decision-making. Whether this means that it should be given priority weighting against other factors that influence decision-making is unclear. In Australia: State of the Environment Report 1996 it is remarked that ‘the relationships between ESD and the protection of biodiversity are not well understood and it is widely assumed that, once a human activity appears sustainable, biodiversity will be protected’.176 8.82 On the other hand, the report also recognises that ‘use of new management strategies, particularly ecologically sustainable development and the precautionary principle, if implemented, would enable this country to provide world leadership for the wise use of natural resources for future generations’.177 The object of legislation should be to enable and require these management strategies to be employed. Under the current definition of ESD in Australian policy and legislation, although biodiversity protection is a ‘fundamental consideration’ in decision-making, it is only one of a number of principles the implementation of which ‘can’ achieve ESD. In other words, the definition of ESD does not make biodiversity conservation a necessary component of ESD. Instructions to decision-makers to ‘consider’ or ‘have regard to’ ESD can be legitimately carried out by a ‘global’ approach without necessarily focusing on any particular principle of ESD, at least so long as the substance of those principles is considered.178 Where a number of factors are mandated for consideration without any statutory indication as to the priority or weight to be accorded to the various factors, then the relevance of each of those factors is a question of fact for the decision-maker to determine.179 In the context of any particular decision, therefore, if protection of biodiversity is, at the most, accorded a weighting by the legislation only equal to other factors to which consideration must be given, then the due weight to be accorded to biodiversity protection, after proper consideration by the decision-maker, may legitimately be determined to be nil. Only if this weighting of relevant factors was not reasonably open to a decision-maker on the evidence, would the courts regard such a decision as possibly unlawful.180 In other words, despite protection of biodiversity being described as a

fundamental consideration, within the boundaries of their legal authority, decision-makers are able to lawfully make decisions that impact significantly and adversely on biodiversity. [page 321] It is clear, however, that use of the precautionary principle may address impacts on biodiversity in decision-making, particularly where threatened species are involved. Equally clear from perusing grounds of appeal in relation to development consents is that biodiversity may be given short shrift by decision-makers anxious to promote development. In particular ‘ecological integrity’ rarely gets assessed and ‘threatening processes’ receive scant acknowledgment. In practice, impacts on biodiversity are likely to trigger some of the most controversial arguments about value judgments in decisionmaking, and some of the most detailed assessments by courts and tribunals in merits review of such decisions.181 Use of the precautionary principle to address potential impacts on biodiversity is welcome;182 however, without more attention being given to this aspect of sustainability in decision-making, the list of threatened species is likely to continue to grow, with the consequent problems for management that listing then entails.183

Improved valuation, pricing and incentive mechanisms 8.83 This principle means that environmental factors should be included in the valuation of assets and services such as: polluter pays; that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement; the users of goods and services should pay prices based on the full life-cycle costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any wastes; and environmental goals, having been established, should be pursued in the most cost-effective way, by establishing incentive structures, including market mechanisms, which enable those best placed to maximise benefits and/or minimise costs to develop their own solutions and responses to environmental problems.184 This principle is based on the policy that if the real value of natural

resources is reflected in the costs of using those resources, then resources will be sustainably used and managed and not wasted. This, of course, begs the question whether we can value environmental assets, and on what basis we should do so. This will be a difficult task, given that different people will assess assets according to different value judgments that reflect economic, social, aesthetic and cultural, as well as environmental values.185 8.84 In Leatch v National Parks & Wildlife Service & Shoalhaven City Council (1993) 81 LGERA 270 at [285–286] Stein J was confronted with the argument that a [page 322] proposed road was justified on social and economic grounds. An alternative route had been considered by council but had been rejected on the basis of traditional cost–benefit analysis. Stein J referred to this as ‘narrow, purely economic balancing’ that had ignored environmental factors. Council argued that inclusion of environmental values was neither usual nor required in Australia. Stein J found: ‘the latter comment hard to accept. There are a number of environmental economic models which factor environmental values into cost/benefit analysis. Surely an approach which attempts to integrate economic and environmental factors is preferable’. Such an approach is advanced, for example, by requiring internalisation of costs for containment of pollution and dealing with waste;186 that is, the ‘polluter pays’;187 and particularly by principles of stewardship or extended producer responsibility (EPR).188 Re-evaluation of the functions and availability of water resources can result in new approaches and attitudes to decision-making that promote the more sustainable use of those resources.189 Incorporation of this principle in environmental legislation may be seen, for example, through the introduction of load-based licensing for emissions of pollution, which sets fees by reference to the actual or potential impact on the environment of the effluent discharged, rather than by simple reference to volumes discharged;190 by provisions that allow planning authorities to seek to restrain the burden on public facilities of approving private development by requiring the proponent to provide works, services or facilities;191 by the establishment of incentive-based schemes for voluntary land management or conservation agreements with private landholders;192 and by market-based approaches to emissions trading, offsets, ecosystem services agreements and other initiatives referred to in Chapter 7 and discussed in more detail in other chapters of this book. Broad-based policy initiatives such as the official

recognition of property rights in water and fisheries management also incorporate some of these principles.193

Conclusion 8.85 Clearly, the principles of ESD are intended to influence governmental and therefore corporate and individual decision-making. However, as principles, they tell [page 323] us little about how to translate the concepts into practical action; that is, something that must be considered in the context of every individual proposal. The principles do seem, however, to imply a preventative, or cautionary, approach to decision-making that stresses the necessity, or desirability, of minimising or avoiding adverse environmental impacts. As familiarity with these principles grows, and as experience in the practical application of concepts of sustainability is gained, then generic approaches, responses and techniques that might be applied to individual decisionmaking, such as focused EA and adaptive management, become more utilised. In helping to hone such approaches, courts and tribunals have played an important role, not just by reviewing the legality and merits of individual decisions, but by setting ‘benchmarks’ for future decision-making.194

1.

Available at .

2.

World Conservation Strategy: Living Resource Conservation for Sustainable Development, IUCN, Gland, 1980.

3.

National Conservation Strategy for Australia: Living Resource Conservation for Sustainable Development, AGPS, Canberra, 1983.

4.

‘Implementing Sustainability’ (1992) 14 Delhi LR 1 at 4–5.

5.

Eckersley, ‘The Concept of Sustainable Development’ in Behrens and Tsamenyi (eds), Our Common Future, Law School, University of Tasmania, 1991, p 46.

6.

Caring for the Earth: A Strategy for Sustainable Living, IUCN, 1991.

7.

Australia ratified this Convention in December 1992.

8.

The Convention entered into force on 29 December 1993 following the 30th ratification. Australia is among those nations that have formally ratified the treaty.

9.

It is generally acknowledged that the starting point for international environmental law was the 26 principles for environmental preservation laid down in the Stockholm Declaration: see Boer, ‘Implementing Sustainability’ (1992) 14 Delhi LR 1 at 24. On the incorporation of the precautionary principle into international agreements, see de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules, OUP, Oxford, 2002, Ch 3, p 94 and following. See also Sands, ‘Environmental Protection in the Twenty-first Century: Sustainable Development and International Law’ in Vig et al (eds), The Global Environment: Institutions, Law and Policy, CQ Press, Washington, 1999, pp 116–37. And for further discussion on principles of international customary law, see 4.14.

10. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Kartinyeri v Commonwealth of Australia (1998) 72 ALJR 722. See also Sir Anthony Mason, ‘The Influence of International and Transnational Law on Australian Municipal Law’ (1996) 7 Public Law Review 20 included also in Lindell (ed), The Mason Papers, Federation Press, Sydney, 2007, pp 269–73; MacIntyre and Mosedale, ‘The Precautionary Principle as a Norm of Customary International Law’ (1998) 9 J Env L 221. 11. See . 12. Australia’s national reports are available at . 13. Townsend, ‘The International Transfer of Environmental Technology’ (1993) 10 EPLJ 164. 14. Report of the WCED, Our Common Future, p 72ff. 15. Stephen, ‘The Growth of International Environmental Law’ (1991) 8 EPLJ 183 at 185. 16. Stein and Mahony, ‘Incorporating Sustainability Principles in Legislation’, in Leadbeter, Gunningham and Boer (eds), Environmental Outlook No 3, Federation Press, Sydney, 1999, p 58. 17. See . The Johannesburg Plan of Implementation can be viewed at . 18. See also Horn, ‘“Sustainable Development” — Mere Rhetoric or Realistic Objective?’ (2011) 30(1) University of Tasmania Law Review 119. 19. See . 20. For a mid-term review of this programme see . 21. See http://www.un.org/sustainabledevelopment/summit/ and . 22. For a useful critique, see Dovers, Environment and Sustainability Policy, Federation Press, Sydney, 2005. 23. Ecologically Sustainable Development (discussion paper), AGPS, Canberra, 1990. See also Our Country, Our Future, AGPS, Canberra, 1989 (statement by Prime Minister Bob Hawke); Australian International Development Assistance Bureau, Ecologically Sustainable Development in International Development Cooperation, An Interim Policy Statement, AGPS, Canberra, 1990; Ecologically Sustainable Development Steering Committee, Draft National Strategy for Ecologically Sustainable Development, AGPS, Canberra, 1992; National Strategy for Ecologically Sustainable Development, AGPS, Canberra, 1992. 24. See Ecologically Sustainable Development Working Groups, Final Reports on Agriculture, Energy Production, Energy Use, Fisheries, Forest Uses, Manufacturing, Mining, Tourism and Transport, AGPS, Canberra, 1991 (these comprehensive and well-researched reports contain a wide variety of recommendations, some quite innovative and far-sighted). 25. At the same time the National Greenhouse Response Strategy and the National Forest Policy Statement were also endorsed by the Council of Australian Governments (COAG). The implementation of ESD also encompasses a National Strategy for the Conservation of Australia’s Biological Diversity (see Chapter 12) and a National Waste Minimisation and Recycling Strategy (see Chapter 16). 26. See 5.57 and following. 27. Commonwealth Government, Ecologically Sustainable Development, Commonwealth Discussion Paper, AGPS, Canberra, 1990. 28. Resource Assessment Commission Act 1989 (Cth) s 8. 29. Industry Commission, A Full Repairing Lease: Inquiry into Ecologically Sustainable Land Management, Report No 60, 1998. Available at . 30. Productivity Commission, Implementation of Ecologically Sustainable Development by Commonwealth Departments and Agencies, Report No 5, 1999. Available at . 31. Productivity Commission, Waste Generation and Resource Efficiency, 2006. Available at . 32. Productivity Commission, Impact of Native Vegetation and Biodiversity Regulations, Report No 29, 2004. Available at . 33. Productivity Commission, Constraints on Private Conservation of Biodiversity, Research Paper, 2001. Available at ; Harnessing Private Sector Conservation of Biodiversity, Research Paper, 2001, available at ; Cost Sharing for Biodiversity Conservation: A Conceptual Framework, Staff Research Paper, 2001, available at . See also Assessing Environmental Regulatory Arrangements for Aquaculture, Research Paper, 2004, available at . 34. Productivity Commission, Creating Markets for Ecosystem Services, Staff Research Paper, 2002. Available at . 35. These are set out in the Rio Declaration on Environment and Development 1992. Available at: . 36. Protection of the Environment Administration Act 1991 s 6(2). 37. Commissioner for Environmental Sustainability Act 2003 (Vic); Sustainability Victoria Act 2005

(Vic) s 4; Sustainable Forests (Timber) Act 2004 (Vic) s 5. 38. Section 7. 39. Section 3 definition, ‘environmental management system’. 40. Sections 8 and 18. 41. ‘Are Decision-makers too Cautious with the Precautionary Principle?’ (2000) 17 EPLJ 3. 42. Environmental Protection Act 1994 (Qld) Sch 3. And see De Lacey & Anor v Kagara Pty Ltd (2009) 30 QLCR 57; Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (No 4) [2014] QLC 12. 43. For example, Environment Protection Act 1997 (ACT) s 3D. 44. For example, Forest Management Act 2013 (Tas) s 15 (The forest manager must perform its functions in a manner that is consistent with the principles of forest management set out in the Forest Practices Code, as a contribution to the sustainable management of Tasmania’s forests). 45. See 8.19. 46. Though the suggestion has been made: see Alliance to Save Hinchinbrook v Environmental Protection Agency (2006) 145 LGERA 32. 47. See Rowe v Lindner [2006] SASC 176 (undue weight given to the precautionary principle). And see further 22.68. 48. See, for example, South East Forest Rescue Inc v Bega Valley Shire Council [2011] NSWLEC 250 where a development consent was struck out by the Court for failure to consider principles of ESD. 49. See also Fisheries Act 2000 (ACT) s 3 (object of the Act is to manage sustainably the fisheries of the Australian Capital Territory by applying the principles of ESD). 50. See Country Energy v Williams [2005] NSWCA 318 (this obligation does not preclude the granting of consent for the destruction of objects of Aboriginal heritage). 51. Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]; Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15]–[19]; Plath v Hunter Valley Property Management Pty Limited [2010] NSWLEC 264; Chief Executive Office of Environment and Heritage v Kyluk Pty Limited (No 3) [2012] NSWLEC 56. 52. For example, Mining Act 1992 (NSW) s 380A (public interest is a relevant ground for making certain decisions about mining rights). Similarly Petroleum (Onshore) Act 1991 (NSW) s 24A. 53. Carstens v Pittwater Council (1999) 111 LGERA 1; BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426; Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; F & D Bonaccorso Pty Ltd v City of Canada Bay Council (2007) 158 LGERA 250. 54. Harvey v Minister Administering Water Management Act 2000 (2008) 160 LGERA 50. The requirement to have regard to the public interest does not encompass a requirement to have regard to submissions about particular impacts on the financial position of individuals. 55. The ‘concept plan’ has subsequently been removed from the legislation governing approvals for major projects: see further 11.79. 56. See, for example, Williams v Minister for Planning (No 2) [2011] NSWLEC 62, where the court held that the approach adopted in Kennedy would encompass the application of the precautionary principle and intergenerational equity to impacts on Aboriginal heritage in the context of modification of an approval for a gold mine, although in this case the duty was held to have been adequately carried out. And on the application of Walker and Kennedy to projects raising climate change as a consideration, see also Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221; Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister

for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217. In relation to impacts on groundwater from mining for coal seam gas, see Barrington — Gloucester — Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197. In all these cases challenges based upon failure to consider, or adequately consider, principles of ESD failed on the evidence. 57. Such clauses were contained in the Endangered Species Protection Act 1992 (Cth) (ESPA) s 27 and the World Heritage Properties Conservation Act 1983 (Cth) s 13; though both these provisions have been repealed by the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA), which now requires the minister not to act inconsistently with international obligations and recognised management principles in making decisions: see ss 137–140. See also Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136 (EPA restricted to consideration of environmental factors — not allowed to take into account economic and political considerations). 58. ‘No objective or principle should predominate over the others. A balanced approach is required that takes into account all these objectives and principles to pursue the goal of ESD’: National Strategy on Ecologically Sustainable Development 1992, p 2. 59. See, for example, Bakrnchev Enterprises Pty Ltd v Maroochy Shire Council [2007] QPEC 117; Gallo and Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 0015. 60. East Melbourne Group Inc v Minister for Planning [2008] VSCA 217. See also The University of Melbourne v Minister for Planning [2011] VCAT 469. 61. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113. 62. Anderson v Director-General DECC (2008) 163 LGERA 400, 421; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113. 63. For example, Rowe v Lindner [2006] SASC 176 (undue weight given to the precautionary principle). 64. Environmental decision-making may be challenged by seeking judicial review and merits review. Judicial review considers the legality of the decision under challenge. Stated broadly, it is the obligation of a decision-maker to consider all relevant issues before making a decision. The decision should reasonably reflect the evidence gathered. A merits review considers whether the decision was appropriate and acceptable, not whether it was lawful. 65. Proposed amendment to State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 s 12AA(3), (4). 66. Available at . 67. For example, Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231. 68. See, for example, Wygiren v Kiama Municipal Council [2008] NSWLEC 1233. 69. Applying the precautionary principle, or at least a precautionary approach, to potential impacts on Aboriginal heritage therefore might be an appropriate response: see, for example, Ashton Coal Operations Pty Limited v Director-General, Department of Environment, Climate Change and Water (No 3) [2011] NSWLEC 1249. 70. See, for example, Ashton Coal Operations Pty Limited v Director-General, Department of Environment, Climate Change and Water (No 3) [2011] NSWLEC 1249. 71. See . 72. See . 73. See .

74. See . 75. The Bill passed into law as the Well-being of Future Generations (Wales) Act) 2015. 76. Triple Bottom Line Assessment Framework for the ACT Government, July 2012, at page 21. Available at . 77. For some examples in the Australian Capital Territory, see . 78. See . 79. See Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11; Harvey v Minister Administering Water Management Act 2000 (2008) 160 LGERA 50. 80. Environment East Gippsland Inc v VicForests [2009] VSC 386; Environment East Gippsland Inc v VicForests [2010] VSC 335. See also R v Resource Planning and Development Commission; Ex parte Aquatas Pty Ltd (1998) 100 LGERA 1, where Cox J in the Supreme Court of Tasmania held that requirements in the Tasmanian State Coastal Policy that the precautionary principle should be applied to certain developments, could be satisfied by the commission, which had insufficient information to determine what protective measures might be required in a local planning scheme in relation to marine farming enterprises, empowering a local planning authority to impose conditions on licences. 81. For example, by requiring offices and public buildings to incorporate design features that promote ESD; see ESD Design Guide for Office and Public Buildings. Available at . 82. See, for example, GHD Pty Ltd v Palerang Council [2009] NSWLEC 1342; and for discussion of the important distinction between the role of courts and tribunals in merits review vis-à-vis judicial review, see Chapter 22. 83. Threatened Species Conservation Act 1995 (NSW) ss 126B–126N. Certification has, for example, been bestowed on the State Environmental Planning Policy (Sydney Region Growth Centres) 2006. 84. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 87. 85. See . 86. See . 87. See also Michael Hesse Associates Pty Ltd v Parramatta City Council (2003) 131 LGERA 390 (adaptive reuse of a building by recycling materials and consequently preserving energy and resources not the only consideration). 88. See, for example, the Queensland Development Code: Sustainable Buildings . In Victoria, the Code of Practice for Timber Production 2007, published under the Conservation, Forests and Lands Act 1987 (Vic), has been interpreted as imposing a mandatory obligation on VicForests to apply the precautionary principle when planning logging operations in state forests; Environment East Gippsland Inc v VicForests [2009] VSC 386; Environment East Gippsland Inc v VicForests [2010] VSC 335. 89. See, for example, the BASIX Code for energy and water efficiency of certain buildings in New South Wales: . 90. See, for example, the ESD Design Guide for Office and Public Buildings: ; Queensland

Sustainable Buildings Guideline: . Although guidelines would normally not impose mandatory standards, statutory interpretation may reveal that was indeed the intent of the legislature; see Byron Ventilink Pty Ltd v Byron Shire Council (2005) 142 LGERA 215 (heritage guidelines mandatory). 91. Available at . See also the Code for Sustainable Homes: Cost Review. Available at . 92. See, for example, the French Haute Qualité Environnementale, ; and the LEED scheme in the USA and Canada, . 93. See . See also Green Building Council of Australia, . 94. SO/TS 21929–1:2006 Sustainability in Building Construction–Sustainability Indicators; ISO 21930:2007 Sustainability in Building Construction–Environmental Declaration of Building Products. 95. ISO 13153:2012, Framework of the design process for energy saving single family residential and small commercial buildings. 96. ISO 14001, ISO 50001. 97. See 2.55. 98. And see Bancroft and Gardner, ‘Opportunities and Obligations for Residential Developers to Undertake Wastewater Recycling and Stormwater Capture: A Western Australian Perspective’ (2015) 32 EPLJ 372. 99. See . And for a development in Canberra based on the green star rating system, see . 100. See . 101. See . 102. See . 103. See . 104. Detailed conditions of consent for the management of ecosystems and biodiversity can also be found in Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254; Ironstone Community Action Group Inc v NSW Minister for Planning and Duralie Coal Pty Ltd [2011] NSWLEC 195 (including noise and dust management); and Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (No 2) [2010] NSWLEC 104. 105. See also, for example, David Kettle Consulting Pty Ltd v Gosford City Council [2008] NSWLEC 1385 (trial period to allow for monitoring of extraction of groundwater for a bottling plant); Pidun v Dac & Struck & Minister of Agriculture, Food & Fisheries [2004] SAERDC 10 (impact of oyster farm on seagrass communities); APP Corp Pty Ltd v City of Perth [2008] WASAT 291 and [2011] WASAT 132 (monitoring of effects of rooftop wind generators); Xstrata Coal Qld Pty Ltd v Friends of the Earth, Brisbane Co-Op Ltd [2012] QLC 13 (monitoring regime for deep aquifers); Gallo v Chief Executive, Dept of Environment and Resource Management [2012] QLC 015 (conditions for monitoring and managing a water licence). 106. Kangaroo culling has also been held to be a precautionary approach to protecting other threatened species: Animal Liberation v Conservator of Flora and Fauna (Administrative Review) [2009] ACAT 17.

For example, Garners Beach Habitat Action Group Inc v Cassowary Coast Regional Council (No 2) 107. [2010] QPEC 140; Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48; Metropolitan Property Group v Moreland CC [2011] VCAT 1285. 108. Environmental Planning and Assessment Regulation 2000 (NSW) Sch 2 cl 7(1)(f). 109. See Tarkine National Coalition Inc v Minister for the Environment [2014] FCA 468. 110. For example, Planning and Development Act 2007 (ACT) s 120(f). 111. For example, Planning and Development Act 2007 (ACT) s 119(2). 112. Planning and Development Act 2007 (ACT) s 119(3). 113. See . 114. See . 115. See, for example, Protection of the Environment Administration Act 1991 (NSW) s 6(2); Sustainable Planning Act 2009 (Qld) s 5(2); Sustainable Forests (Timber) Act s 5(4)(b). And see generally Peel, The Precautionary Principle in Practice, Federation Press, Sydney, 2005; Preston, ‘Ecologically Sustainable Development in the Courts in Australia and Asia’ LEC website , 28 August 2006. 116. Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 per Preston CJ at [128]. 117. See, for example, Paltridge v District Council of Grant [2011] SAERDC 23 (no scientific evidence about serious health impacts from wind farms); Elliott v Brisbane City Council (2002) QPELR 425; St Helen’s Area Landcare and Coastcare Group Inc v Break O’Day Council [2007] TASSC 15. 118. See, for example, Wiseowl Investments Pty Ltd and Shire of Busselton [2010] WASAT 150; Xstrata Coal Qld Pty Ltd v Friends of the Earth, Brisbane Co-Op Ltd [2012] QLC 13; MyEnvironment Inc v VicForests [2012] VSC 91. 119. For example, Protection of the Environment Administration Act 1991 (NSW) s 6(2); Transport Integration Act 2010 (Vic) s 19; Environmental Protection Act 1986 (WA) s 4A(1) (this phrase does not appear to have gained traction in either Queensland, South Australia or Tasmania). The term ‘risk-weighted consequences’ has been expressed to mean ‘an attempt to undertake a semiquantitative analysis, and determine the likelihood of irreparable damage or an undesired or adverse outcome arising from a particular development or activity’: see the Glossary to the Draft National Strategy for Ecologically Sustainable Development: A Discussion Paper, The Ecologically Sustainable Development Steering Committee, AGPS, June 1992. A decision-maker that gives undue weight to the precautionary principle, without adequately assessing other relevant evidence, may be challenged under principles of judicial review: see Rowe v Lindner [2006] SASC 176. And on ‘due weight’, see 22.67. 120. See, for example, O’Riordan and Cameron (eds), Interpreting the Precautionary Principle, Earthscan, London, 1994; Hughes, ‘The Status of the Precautionary Principle in Law’ (1995) Journal of Environmental Law 224; Gullett, ‘Environmental Protection and the Precautionary Principle: A Response to Scientific Uncertainty in Environmental Management’ (1997) 14 EPLJ 52. In Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 94 LGERA 380 at 432, Templeman J distinguished the precautionary approach required by a forest licence from the precautionary principle, but referred to the lack of guidance offered by the licence condition as to the steps to be taken to comply with this provision; and commented that in any case such an approach did not generally dictate one specific course of action to the exclusion of others. 121. See generally Deville and Harding (eds), Applying the Precautionary Principle, Federation Press, Sydney, 1997; Barton, ‘The Status of the Precautionary Principle in Australia: Its Emergence in

Legislation and as a Common Law Doctrine’ (1998) 22 Harvard Environmental Law Review 509; Cameron, ‘The Precautionary Principle — Core Meaning, Constitutional Framework and Procedures for Implementation’, paper presented at the Precautionary Principle Conference, Institute of Environmental Studies, University of New South Wales, September 1993; Estcourt, ‘The Precautionary Principle, the Coast and Temwood Holdings’ (2014) 31 EPLJ 288; Dwyer and Taylor, ‘Moving from Consideration to Application: The Uptake of Principles of Ecologically Sustainable Development in Environmental Decision-making in New South Wales’ (2013) 30 EPLJ 185. 122. Sol Theo as Trustee for the Solon Theo Family Trust v Caboolture Shire Council [2001] QPELR 101 at 109 per McLauchlan DCJ. 123. For example, the cumulative impact of waste water and septic tank systems on water quality in open potable water supply catchments resulting from increased dwelling density: see Rozen v Macedon Ranges Shire Council [2009] VCAT 2746; Simpson v Ballarat City Council [2012] VCAT 1399. 124. See generally the factors suggested by Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 at [131] based on suggestions by Deville and Harding, Applying the Precautionary Principle, Federation Press, Sydney, 1997; de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules, Oxford University Press, Oxford, 2005, pp 163–5. See also World Commission on the Ethics of Scientific Knowledge and Technology, The Precautionary Principle, UNESCO, Paris, 2005. And for practical application, see, for example, De Brett Investments Pty Ltd and Australian Fisheries Management Authority [2004] AATA 704; Humane Society International and Minister for the Environment and Heritage [2006] AATA 298. 125. Clark v Ryan (1960) 103 CLR 486; Paric v John Holland Constructions (1978) 62 ALR 85; and see Preston, ‘Science and the Law: Evaluating Evidentiary Reliability’, paper presented to the Australasian Conference of Planning and Environment Courts and Tribunals, September 2002. And on expert witnesses in merits review, see 22.11. 126. Christie, ‘The Role of Law and Science in the Resolution of Disputes Over Factual Evidence’ (1991) 8 EPLJ 200 at 201. 127. See ‘Uncertainty, Risk and the Precautionary Principle’, in Harding (ed), Environmental Decisionmaking, Federation Press, Sydney, 1998. 128. Barton, ‘The Status of the Precautionary Principle in Australia: Its Emergence in Legislation and as a Common Law Doctrine’ (1998) 22 Harvard Environmental Law Review 509 at 518; and see Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 at [143]. 129. Per Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 at [145]; and see the analysis following at 8.66. 130. See Christie, note 76 above, at 202. Jeffery, ‘The Appropriateness of Dealing with Scientific Evidence in the Adversarial Arena’ (1986) 3 EPLJ 313. 131. For example, Christie, ‘Toxic Tort Disputes: Proof of Causation and the Courts’ (1992) 9 EPLJ 302 at 313; Fisk, ‘Environmental Science and Environmental Law’ (1998) 10 J Env L 3; ‘Uncertainty, Risk and the Precautionary Principle’ in Harding (ed), Environmental Decision-making, Federation Press, Sydney, 1998. One commentator has suggested that because scientific method does not necessarily give the quality of certainty to the opinion or assessment of a scientist, that a scientific opinion might be best evaluated for reliability by testing it against seven types of uncertainty likely to be found in any scientific assessment or opinion, namely conceptual uncertainty, measurement uncertainty, sampling uncertainty, mathematical modelling uncertainty, causal uncertainty, testing uncertainty and communicative and cognitive uncertainty: see Limpert, ‘Beyond the Rule in Mohan: A New Model for Assessing the Reliability of Scientific Evidence’ (1998) 54 Univ Toronto L Rev 65. 132. ‘Presenting Scientific Evidence in Environmental Court Cases: How Science and Law Meet’ (2008) 25 EPLJ 425 at 429.

133. See note 82 above, at 439. 134. See Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (No 4) [2014] QLC 12 (although in this case it is open to interpretation whether the court was applying the precautionary principle or a precautionary (cautious) approach). 135. The significance of this decision has been well analysed by Preston CJ in ‘Jurisprudence on Ecologically Sustainable Development; Paul Stein’s contribution’ (2012) 29 EPLJ 3. 136. See also Alumino (Aust) Pty Ltd v Minister administering the Environmental Planning and Assessment Act 1979 (NSW) [1996] NSWLEC 102. 137. (1994) 86 LGERA 143 at 154. See also Gallen J in Greenpeace New Zealand Inc v Minister of Fisheries (unreported, High Court of New Zealand, 27 November 1995); and Mascher, ‘Taking a Precautionary Approach: Fisheries Management in New Zealand’ (1997) 14 EPLJ 70. A similar approach was taken in the United Kingdom in R v Secretary of State for Trade and Industry; Ex parte Duddridge [1996] 2 CMLR 361; and also in Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Management (1997) 18 WAR 102 and 126. 138. (1994) 86 LGERA 143 at 153. 139. [1999] SAERDC 86. The court indicated that an adaptive management approach, implemented by way of licence conditions to achieve ESD, which could be varied in response to new knowledge, was one means by which the development could proceed in an ecologically sustainable manner. However, shortly after the judgment of the court was delivered in December 1999, temporary development authorisations were granted to enable the development of the tuna farms to proceed, under an amendment to the Development Regulations 1993 (SA). The decision of the court was also later set aside by the South Australian Court of Appeal in Tuna Boat Owners Association of SA Inc v Development Assessment Commission [2000] SASC 238, on grounds not associated with the court’s treatment of ESD principles, and the case remitted to the court. In Conservation Council of SA v DAC & Tuna Boat Owners Association (No 3) [2000] SAERDC 67, the court subsequently reaffirmed its intent to set aside the initial consents. 140. Telstra Corporation Ltd v Pine Rivers Shire Council [2001] QPELR 350 per Newton DCJ at 381; De Lacey v Kagara Pty Ltd [2009] QLC 77 (requirement to conduct further baseline studies in respect of threatened bat and plant species). The court remarked that ‘an often overlooked aspect of objections hearings before the Land Court relate to whether or not the Precautionary Principle is relevant’; Xstrata Coal Qld Pty Ltd v Friends of the Earth, Brisbane Co-Op Ltd [2012] QLC 13. 141. See also Providence Projects Pty Ltd v Gosford City Council [2006] NSWLEC 52; Gales Holdings Pty Ltd v Tweed Shire Council [2006] NSWLEC 85. 142. Water allocations are one area where the precautionary principle might be expected to be applied; see Roberts and Gardner, ‘Challenges for the Management of Water Resources in Western Australia: A Legal Response to Findings of the Public Sector Performance Report 2003’ (2005) 22 EPLJ 40. 143. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 391. 144. Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2009] FCAFC 114; Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111 at [193]. 145. Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2009] FCAFC 114 at [47]. 146. This analysis in Telstra has also been applied in Victoria; see Rozen v Macedon Ranges Shire Council [2010] VSC 583; Environment East Gippsland Inc v VicForests [2010] VSC 335 at [188] and [203]–[211], and in Western Australia; see, for example, Telstra Corporation Ltd and Shire of Murray [2009] WASAT 117 at [64]. It has also been cited with approval by the Federal Court in Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts (2009) 165 LGERA 203 at

[89]; and by the South Australian Supreme Court in Rowe v Lindner (No 2) [2007] SASC 189 at [60]. 147. Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 at [166]–[178]. See also Hamilton v Sutherland Shire Council [2012] NSWLEC 1015 (retaining the trunk of a tree as a habitat for wildlife while allowing pruning of the branches to address the possibility of limbs falling onto an adjoining property); Dual Gas Pty Ltd v Environment Protection Authority [2012] VCAT 308 at [214]. See also Trenorden, ‘Judicial Review and the Principles of Ecologically Sustainable Development: Where Are We Going?’ Australian Environmental Law Digest, December 2014. 148. Per Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 at [179]. See also Heavenly Queen Temple Society Inc v Maribyrnong City Council [2005] VCAT 875; Hasan v Moreland City Council [2005] VCAT 1931; Rozen v Macedon Ranges Shire Council [2007] VCAT 1814; King v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Ltd v Minister for Planning [2010] NSWLEC 1102; Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221. 149. Histpark Pty Ltd v Maroochy Shire Council (2002) QPELR 134 per Robertson DCJ at 141; Shannon v Dalby Town Council [2004] QPEC 62 per Wilson DCJ at [28]; Dual Gas Pty Ltd v Environment Protection Authority [2012] VCAT 308 at [214]. 150. Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 94 LGERA 380 per Templeman J at 432. 151. Woolaston and Hamman, ‘The Operation of the Precautionary Principle in Australian Environmental Law: An Examination of the Western Australian White Shark Drum Line Program’ (2015) 32 EPLJ 327 at 339. 152. Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2014] FCA 117 (defined commercial fishing activities prohibited pending reference to expert panel). 153. See, for example, Terminals Pty Ltd v Greater Geelong City Council [2005] VCAT 1988; Giles v Baw Baw Shire Council [2009] VCAT 61; Denison v Townsville City Council [2006] QPEC 118; Woo v Campbelltown City Council [2008] SAERDC 25. 154. Though see the discussion at 8.74. 155. And see the authorities cited at [152] in support; see also Providence Projects Pty Ltd v Gosford City Council [2006] NSWLEC 52. This analysis in Telstra has also been applied in Victoria: see Rozen v Macedon Ranges Shire Council [2010] VSC 583; Environment East Gippsland Inc v VicForests [2010] VSC 335 at [188] and [203]–[211]; and in Western Australia, see, for example, Telstra Corporation Ltd and Shire of Murray [2009] WASAT 117 at [64]. It has also been cited with approval by the Federal Court in Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts (2009) 165 LGERA 203 at [89]; and by the South Australian Supreme Court in Rowe v Lindner (No 2) [2007] SASC 189 at [60]. See also Parry, ‘Ecologically Sustainable Development in Western Australian Planning Cases’ (2009) 26 EPLJ 375. 156. For further explanation, see Chapter 22. 157. See, for example, Wiseowl Investments Pty Ltd and Shire of Busselton [2010] WASAT 150; Xstrata Coal Qld Pty Ltd v Friends of the Earth, Brisbane Co-Op Ltd [2012] QLC 13; MyEnvironment Inc v VicForests [2012] VSC 91. 158. Telstra Corporation Limited v Pine Rivers Shire Council [2001] QPELR 350 per Newton DCJ at 381; De Lacey v Kagara Pty Ltd [2009] QLC 77 (requirement to conduct further base-line studies in respect of threatened bat and plant species). The court remarked that ‘An often overlooked aspect of objections hearings before the Land Court relate to whether or not the Precautionary Principle is relevant’; Xstrata Coal Qld Pty Ltd v Friends of the Earth, Brisbane Co-Op Ltd [2012] QLC 13. 159. Communication from the Commission on the Precautionary Principle COM (2000) 1.

160. See de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules, OUP, Oxford, 2002, Ch 3, pp 92–3. 161. Pfizer v European Commission T-13/99 (banning antibiotics as additives in animal foodstuffs supported by interpretation of precautionary principle); Alpharma Inc v Council T-70/99. 162. See Land Oberösterreich und Österreich v Commission T-366/03 (ban on genetically modified crops not supported by application of precautionary principle); Commission v Italian Republic C-173/05 (environmental tax on methane gas; defence based on precautionary principle failed); though occasionally the court does uphold member action based on a precautionary approach: see, for example, Bluhme, Re C-67-97 (prohibition on import of a particular type of bee justified to protect endemic species). 163. See de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules, OUP, Oxford, 2002, Ch 3, p 91. 164. De Sadeleer, above, at p 125. 165. Inter-Governmental Agreement on the Environment (1992) s 3.5.2; and for further discussion on the IGAE, see 5.64. 166. E Brown Weiss, In Fairness to Future Generations, United Nations University, Tokyo, and Transnational Publishers, New York, 1989, pp 26–7. Also see E Brown Weiss, ‘Intergenerational Equity: A Legal Framework for Global Environmental Change’ in E Brown Weiss (ed), Environmental Change and International Law: New Challenges and Dimensions, UN University Press, 1992, p 385. 167. (1994) 33 ILM 173. 168. By contrast, in Xstrata Coal Queensland Pty Ltd v Friends of the Earth — Brisbane Co-Op Ltd (2012) 33 QLCR 79 greenhouse gas emissions from the transportation and use of coal (scope 3 emissions) were declared to be outside the jurisdiction of the court to consider, based on interpretation of the term ‘operations’ in the relevant legislation conferring jurisdiction on the court. 169. See 8.31. 170. See, for example, Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217; Hunter Community Environment Centre Inc v Minister for Planning [2012] NSWLEC 195. In both cases, legal challenges to the adequacy of the required assessment failed. See further 18.65; and for general principles of judicial review, see Chapter 22. 171. See, for example, Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221. And see further 18.66. 172. Applying the precautionary principle, or at least a precautionary approach, to potential impacts on Aboriginal heritage therefore might be an appropriate response: see, for example, Ashton Coal Operations Pty Limited v Director-General, Department of Environment, Climate Change and Water (No 3) [2011] NSWLEC 1249. 173. The evaluation of the significance of the site and its cultural heritage was a matter of ‘irreconcilable’ differences within the Aboriginal community; for a summary of the report, see [40] and following. 174. Fragmentation and loss of sustainable agricultural land was also the focus of an appeal in Agonic Holdings Pty Ltd v Lithgow City Council [2008] NSWLEC 1347. See also Glenella Estates Pty Ltd v Mackay Regional Council [2010] QPEC 132 (need for residential development did not override the need to protect good quality agricultural land). 175. Global Biodiversity Outlook 3, see . 176. AGPS, 1996, 4–40.

AGPS, 1996, 4–55. On the relationship between protection of biodiversity and the precautionary 177. principle, see Sperling, ‘If Caution Really Mattered’ (1999) 16 EPLJ 425. 178. See 8.35. 179. Minister for Aboriginal Affairs v Peko Wallsend Pty Ltd (1986) 162 CLR 24 at 41; and see further 22.67. 180. Minister for Aboriginal Affairs v Peko Wallsend Pty Ltd (1986) 162 CLR 24; and see 22.54 and following. 181. See, for example, Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48; upheld by the NSW Court of Appeal [2014] NSWCA 105. 182. See also Cooney and Dickson (eds), Biodiversity and the Precautionary Principle, Risk and Uncertainty in Conservation and Sustainable Use, Earthscan, London, 2005. 183. See further Chapter 14. 184. IGAE s 3.5.4. 185. See Beder, ‘What is the Environment Worth?’, The Nature of Sustainable Development, Scribe Publications, Melbourne, 1993. 186. See Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 at [230]; and also Preston, ‘Ecologically Sustainable Development in the Context of Contaminated Land’ (2008) 25 EPLJ 164. 187. See Preston, ‘Sustainable Development in the Courts: The Polluter Pays Principle’, available at , 7 April 2009. 188. See 16.5 and following. 189. See the examples given by Preston in ‘Water and Ecologically Sustainable Development in the Courts’ available at , 17 October 2008. 190. For example, Protection of the Environment Operations (General) Regulation 1998 (NSW); and see further 15.72. 191. For example Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 94. 192. See 7.46. 193. See 7.38. 194. And see Preston CJ, ‘Leadership by the courts in achieving sustainability’ (2010) 27 EPLJ 321.

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PART C Environmental Assessment: Strategic and Project-based Overview Pt C.1 Arguably the most important environmental legislation in each jurisdiction is that which governs environmental planning and development. This is because development can trigger significant adverse and cumulative environmental impacts; so unless projects are properly planned at the outset, subjected to rigorous environmental assessment (EA), and then, if they do go ahead, have reasonably strict operating conditions imposed upon them, decision-making can hardly be said to be encouraging the uptake of ‘sustainable’ development. Authority to carry out development may be granted at either central or local government level; and the sheer number of proposals for development that are dealt with by central and local governments on a day-to-day basis have the potential to expose not only local environments, but also species of biodiversity, in unconnected locations, to the realities of the ‘death of a thousand cuts’; that is, the cumulative impacts of sequential poor decisionmaking. For this reason strategic environmental planning is vital to identify the parameters within which development may occur. Then, at the projectspecific stage, a rigorous EA process is necessary to identify potentially significant impacts and make sure that these are adequately considered, and responded to, in evaluating an application for development consent. Importantly, [page 326] the issue of a consent should not mean that so long as the conditions of that consent are adhered to, no further thought need be given to environmental impacts. Changing climatic and other influences will mean that the

environmental effects of longer term projects will need to be monitored and operating conditions may need to be modified to respond to unpredicted or excessive impacts.

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Chapter 9 Strategic Environmental Planning Introduction 9.1 Planning is the antithesis of chaos. The common law had no concept of public planning, though private owners could effectively ‘plan’ in a limited way by the use of restrictive covenants.1 Imagine what would happen, however, if restrictions on ‘development’ and access to natural resources were to be solely managed by legislative schemes that required approvals for significant impacts on land and other resources, but introduced no framework within which applications and approvals should be considered. Any principles on which an approval was issued would likely last only until the next application was determined. The alternative to strategic planning is, of course, totally ad hoc decision-making — decisions that are not made according to any plan but made simply according to influences and attitudes that prevail at the time. Planning introduces order, a measure of certainty and security, and a principled framework against which applications to carry out development of land and access natural resources may be assessed.2 It is no surprise then that the objects of environmental planning legislation frequently refer to the ‘promotion and co-ordination of the orderly and economic use and development of land’.3 Likewise, planning for management of land and other natural resources such as water, fisheries and forests stresses the need to introduce order and avoid over-exploitation by managing in a sustainable manner.4 The content of strategic environmental planning [page 328] instruments will reflect in more precise detail the broad objectives of the legislation under which they are made, including, for example, carrying out statutory instructions to give effect to principles of sustainability.5 9.2 Strategic planning then may be broadly described as planning for the

future, creating policy documents that outline the future intentions of the regulator or responsible authority in managing a resource. Such intentions may, for example, govern the future use and development of land in an urban or rural area, or provide for the rules that govern exploitation and conservation of specific resources such as fisheries, forests, water or nature reserves. Strategic planning provides a backdrop or blueprint that governs the conduct of those who seek to manage or have powers to permit the exploitation of a resource. Since environmental planning is an ongoing process, such a plan will have a finite life; indeed, there will probably be legal obligations to have it reviewed on a regular basis.6 Objectives may need to be reconsidered; lessons gleaned from experience; time frames shifted; and extent of exploitation reviewed. While it is in force, however, the plan will provide the vision and the ground rules for management, and the context in which applications to carry out particular activities and projects will be evaluated. 9.3 Strategic environmental planning, then, for the purposes of this chapter,7 describes the preparation of plans and policies at state, regional and local levels, in respect of particular natural resources such as land, water, forests and fisheries. It has been said that: … a strategic viewpoint lies at the heart of land use planning. In recent years, there have been numerous attempts to define strategic planning for urban and regional matters. Although diverse, and often abstruse, they do have common threads: a long term generalized vision; coordination of decision-making; integration of programs across agencies; and arrangements whereby agreed directions can be changed with relative ease.8

[page 329] 9.4 Management of natural resources other than land generally takes place outside the land use planning framework, though there may be links with land use planning processes in the form of mandatory procedures for consultation with or concurrence by resource management agencies in consideration of development of strategic plans and consideration of applications for development consent.9 This is particularly the case where impacts on threatened species may be predicted.10 Applications for permits to conduct activities under resource management legislation may also be directed to be evaluated through the land use planning regime.11 The integration of land use planning controls with the management or allocation of natural resources such as native vegetation or water can, however, be problematic, giving rise to questions about how the different regimes were intended to be integrated and the nature of the relationship between them, and calling ultimately on the courts to resolve problems of interpretation.12 9.5 One theory of strategic planning is that if impacts on resources are

considered and accounted for at the outset, then subsequent developments or projects may not need such rigorous evaluation as might otherwise be required. Recent legislative initiatives in New South Wales for ‘biodiversity certification’ of environmental planning instruments (EPIs) depend on such theory, but are likely to be controversial. This is discussed further in Chapter 13. Development controls, and procedures for the assessment of the environmental impacts of development, consequent on the application of strategic planning instruments are dealt with in Chapter 10, environmental impact assessment (EIA) as a formal process is discussed in Chapter 11, and management of natural resources is considered in Chapter 18.

Allocating Crown land and resources 9.6 The Crown (see 2.7) has taken control of, and manages, not only the resources of Crown or public land, but also certain natural resources that occur on or under, or pass through, private property, such as minerals,13 petroleum and geothermal energy,14 and [page 330] water,15 as well as sea fisheries, which occur in Commonwealth sovereign areas and are subject to constitutional limitations in favour of the states: see 5.31.

Crown land 9.7 Disputes over allocation of land and other natural resources commonly occur in respect of Crown land. Crown land is land that has not otherwise been ‘alienated’ or, in other words, transferred to private ownership. More specifically, it is a term that may also be used to indicate that the land has not also been vested in other agencies of government such as national parks and forests agencies. Each state has enacted legislation indicating how public lands may be alienated and managed.16 The Commonwealth has no direct powers of control over Crown land in a state, unless it is Commonwealth land, although it does, of course, have constitutional powers by which it might influence the use and management of state lands. These were discussed in Chapter 5.

9.8 The uses to which Crown land will be put are effectively determined by government policy. The kinds of competing claims to which Crown land is subject include resource extraction (minerals, petroleum, fisheries and forests); residential and industrial development; agricultural and pastoral pursuits; irrigation schemes; public utility development, such as hydro-electric and other energy schemes, public buildings, roads, bridges, sewage treatment plants, ports and harbours, as well as conservation through the declaration of national parks and other reserves, and Aboriginal land and native title claims. On the development side, Crown land may be vested in some state instrumentality for carrying out public projects, such as hydro-electric or forestry development; or concessions may be granted by lease, licence or statutory grant for private commercial purposes that are likely to provide significant employment opportunities, income or export earnings, such as through pastoral activities, mining, forestry development or marine farming. On the conservation side, Crown land may be protected within the boundaries of a national or other park or reserve.17 Management and use of Crown lands should be carried out according to the objects for which the resource is dedicated.18 9.9 In the past, the economic exploitation of Crown land was always considered desirable, subject to the negotiation of satisfactory agreements. Today, however, the development and exploitation of resources is no longer an automatic or unquestionable process. The public interest in ‘development’ has to be balanced and justified against the environmental effects of that development and against alternative uses to which resources [page 331] may be put. Ultimately, development may be permitted, subject to environmental safeguards; but, nevertheless, it is as permissible to argue for the preservation of the environment in its natural state as it is to press for development. Significant increases in recent years in the amount of land set aside for national parks and other reserves, and in the public use of such areas, together with increasing knowledge about the interrelationship of ecosystems and biodiversity and the promotion of ‘ecologically sustainable development, testify to a growing need to conserve aesthetically, biologically and culturally important features in their natural environments. 9.10 There have been, and indeed continue to be, notable and longrunning disputes over the use of Crown land; for example, logging of native forests,19 the construction of hydro-electric dams20 and mining.21 Governments, which manage Crown land and control the allocation of

resources, adopt various methods of determining such disputes or deciding how to allocate resources. The first is purely political: resources will be allocated and justified on economic grounds by the amount of investment a proposal will generate and the number of jobs it will create.22 The second is to refer the proposal to a specially constituted inquiry;23 the third is to refer the issue for advice to a body already in existence that has as part of its statutory charter responsibility for researching and giving advice on the allocation, use and management of natural resources.24 Political decisions can then be analysed in the context of the findings and recommendations of such inquiries. The Land Conservation Council of Victoria, for example, was for many years charged with advising the minister ‘with respect to the use of the public land in order to provide for the balanced use of land in Victoria’.25 The council was initially replaced with the Environment Conservation Council, with similar objectives. This body has in turn been replaced by the Victorian Environmental Assessment Council, whose functions include to ‘carry out investigations that are [page 332] requested by the minister on matters relating to the protection and ecologically sustainable management of the environment and natural resources of public land’.26 9.11 In Tasmania, a state that has attracted more than its fair share of protracted and bitterly fought disputes over resource allocation, but that has also been subject to a large degree of ad hoc decision-making in the absence of any basic fundamental policy directives, attempts have also been made to rationalise consideration of resource allocation. The Tasmanian Planning Commission Act 1997 (Tas) entrusts the TPC, among other things, with the assessment of public land use issues referred by the minister.27 The commission, and its predecessors the Public Land Use Commission28 and Resource Planning and Development Commission,29 have, for example, conducted inquiries into, and made recommendations on, land classification and management tasks associated with the Regional Forest Agreement process, classification of Crown lands, based on the Protected Area Categories System of the International Union for Conservation of Nature and Natural Resources (IUCN), and, more recently, into the proposed northern Tasmania pulp mill.30 9.12 Occasionally, legislation may also require strategic planning before Crown land is alienated or before particular uses are permitted, to determine the most suitable uses to which the land may be put. In New South Wales, the

Crown Lands Act 198931 requires that appropriate uses of land must be assessed prior to any decision to sell or lease the land.32 Section 11 requires that certain principles of land management be observed and taken into account in any assessment.33 These include: that environmental protection principles should govern management; that natural resources should be conserved and used sustainably; and that public use and enjoyment be encouraged. The Act then prescribes a series of steps by which land capability and suitable and preferred uses may be identified,34 though the Act does not appear to bind the minister to such uses nor prohibit future changes of use. Future development on the land will, however, be subject to the provisions of the Environmental Planning and Assessment Act 1979 (NSW). 9.13 Once the use of public lands has been determined, management plans may be drawn up both to facilitate that use and to avoid detrimental environmental impacts. A decision to commit Crown land to some particular public purpose, such as a recreation area or park, may also, of course, involve a transfer of management and [page 333] control functions to another agency that, by virtue of its own statutory powers, may be instructed to draw up management plans.35 Management plans are a particularly valuable tool for controlling access to exploitable natural resources such as fisheries, forests and water, as well as for protecting the environmental values of national parks and other reserved areas.36 9.14 The ability of the Crown to continue to influence the management of lands is also assisted, of course, by the leasing of Crown land, or licensing of activities on it, in preference to its alienation. The Crown, through such agreements, may then require occupiers of Crown land to carry out specific beneficial land management practices, such as preserving native vegetation, protecting the land from erosion and overstocking, and remediation or rehabilitation.37 In Keech v Western Lands Commissioner (2003) 132 LGERA 23, the commissioner had responded to breaches of clearing requirements by revoking the lessee’s cultivation permit on grounds of ecologically sustainable development (ESD). The Land and Environment Court held that the issue of economic hardship did not outweigh the potential environmental impact and the revocation had been justified.

Crown resources 9.15 Environmental management of natural resources under the control of

the Crown, whether on or under Crown land, in the oceans or within the boundaries of private property, is commonly undertaken through the production of an environmental management plan or similar; or through a process of drawing up agreements for the management of resources, particularly where different parties, or even different governments, have competing or legitimate interests in the management of those resources, such as the forestry estate. Strategic assessment can even percolate down to individual whole-of-farm planning, prior to negotiation of a land management agreement, property vegetation plan or similar.38 Strategic assessment will then inform, and often constrain, subsequent licensing processes that permit development or exploitation of those resources. Projectspecific management of natural resources is discussed in Chapter 18.

Environmental and resource management plans 9.16 Environmental or resource management plans are required by legislation for the environmental management of most natural resources that are vested in government regulators, and also sometimes for resources that are not directly vested [page 334] in government authorities, but for which government has powers and responsibilities of management; for example, preservation of native vegetation.39 Plans may be broadly divided into strategic planning for management of a resource (national parks and reserves, biodiversity, forests, fisheries, and water), and plans imposed on specific projects for environmental management in the conduct of a particular activity (minerals, gas, geothermal energy, petroleum).40 The contents of such plans will include provisions, where necessary, that encourage sustainable use, such as quotas on the taking of fish, water and native timbers, as well as provisions that seek to protect or manage the impact of resource extraction on the surrounding and wider environment; for example, through regulating the means of exploitation and controlling pollution from such operations. This chapter is concerned more with strategic planning than project-specific planning for extraction of Crown resources, which is discussed in more detail in Chapter 18. Plans must comply with objective legal standards for decision-making, particularly relevance and reasonableness.41 For example, a plan that

introduced unreasonable, capricious or irrational provisions would be unlikely to survive a legal challenge because the legislation that authorised the preparation of the plan would be unlikely to be interpreted as authorising the inclusion of such provisions. In Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 112 ALR 211, for example, a plan of management for a fishery was declared void because the formula for allocating catch quotas under the plan produced anomalies that were capricious or unfair on operators. The plan was thus so unreasonable that it could not be justified on any reasonable ground.42 9.17 As a form of delegated instrument, management plans must also reflect and accord with the objects of the legislation under which they are prepared,43 and often the legislation will indicate general criteria that must be taken into account or included in the preparation of such plans. For example, a plan of management for a world heritage area,44 Ramsar wetland,45 biosphere reserve46 or Commonwealth reserve47 must not [page 335] be inconsistent with the stipulated management principles. In New South Wales, a plan of management for a park or reserved area ‘shall contain a written scheme of the operations which it is proposed to undertake therein or in relation thereto to carry out the purpose and objects of this Act’.48 Regard must then be had to a variety of objectives that reflect the purpose of the reservation.49 In Queensland, management plans for reserves must be consistent with the management principles specified for the particular class of reserve.50 Western Australia is similar, setting out the outcomes of management for which the plan must be prepared.51 9.18 The National Parks and Wildlife Act 1970 (Tas) (NPWA) s 21 (now repealed) indicated that a management plan for reserved lands was to specify the purposes for which the land was reserved, the management objectives for the reserved land, taken from those defined in Sch 4 to the Act, and the manner in which those objectives were to be achieved. In Tasmanian Conservation Trust Inc v Tasmania (2000) 109 LGERA 219, Underwood J in the Supreme Court of Tasmania held that, although the Act did not expressly forbid the inclusion in a management plan of objectives that were not listed in the schedule, nevertheless, from a reading of the relevant provisions, that was the intention of parliament. In other words, the Act itself proscribed the relevant objectives of management for the particular class of reserve, and these had to be fulfilled by the management plan. The only discretion that lay with

the National Parks and Wildlife Service drawing up the plan was to choose which of the objectives were relevant to that particular plan. 9.19 A plan of management for a Commonwealth fishery must set out the objectives of the plan of management; measures by which the objectives are to be attained; and performance criteria against which the measures taken may be assessed.52 A plan may, for example, determine methods by which the fishing capacity of a fishery are to be measured, by reference, for example, to a particular area; a particular species, type or quantity of fish; a particular kind, size or quantity of fishing equipment; a particular number of boats; a particular period of fishing, or any combination of these. A plan may also formulate procedures to be followed for selecting persons to whom fishing concessions are to be granted, and specify the kind and quantity of equipment that may be used in the fishery.53 In pursuance of the objects of the legislation (which include ‘ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ESD, in particular the need to have regard to the impact of fishing [page 336] activities on non-target species and the marine environment’),54 a management plan must also contain measures directed at reducing to a minimum the incidental catch of fish not taken under and in accordance with that plan, and the incidental catch of other species.55 9.20 Wildlife conservation plans,56 and plans that relate directly to the protection and management of threatened species, such as recovery plans and threat abatement plans,57 are also clear examples of a strategic planning approach being put into effect to try to provide for the future survival of native biodiversity. More ambitious are the bioregional plans that can be implemented by joint agreement of the Commonwealth and a state or territory to achieve objectives relating to biodiversity and other values in relation to areas that are not wholly within one jurisdiction. Frequently, draft plans will also be, or must be, released for public comment.58 9.21 While plans are in force, regulators as well as the regulated are usually instructed to act in accordance or consistently with the plan.59 In other words, the resource must be managed in accordance with the plan;60 otherwise, there would be little point in drawing up a plan. For example, in Environment East Gippsland Inc v VicForests [2010] VSC 335, it was held that timber harvesting

under the Sustainable Forests (Timber) Act 2004 (Vic) had to be in accordance with management guidelines specified in relevant forest management plans published by the Department of Sustainability and Environment or its predecessors. The court awarded an injunction to the applicants that prohibited logging except in accordance with the relevant management plans.61 A decision to allocate natural resources, such as water or fisheries entitlements, that are not consistent with relevant management plans may be declared invalid.62 [page 337] 9.22 Failure to comply with a management plan may result in the commission of a criminal offence. For example, in South Australia, clearance of native vegetation may be unlawful unless done in accordance with a management plan.63 Plans may, for example, make provision for roadside clearance of vegetation, recognising what Debelle J described in Kingscote District Council v Kangaroo Island Eco Action Inc (No 1) (1996) 92 LGERA 117 at 122, as ‘the tension between the preservation of native vegetation and the undertaking of proper steps at a reasonable cost to manage roads in the council area (which must include making the roads safe)’. Plans include reference to types of vegetation along roadsides and desired methods of clearance; but as, in effect, they are a series of guidelines that do not set out absolute standards or specifications, they should be interpreted ‘in the light of practical considerations rather than by meticulous measurement’.64 In other words, substantial, rather than absolute, compliance with a plan was enough. Such a judgment would, of course, depend on an interpretation of the status given to the terms of a management plan by the legislation under which it was prepared. 9.23 Strategic assessment at the plan-making stage may also help to ease the passage of future development proposals or activities through the development approval process. After all, if the forward planning process has been sufficiently rigorous with respect to protection of environmental values, including cumulative impacts,65 and responsive also to community aspirations and ideals, then subsequent proposals should already have been at least partly assessed and prove less controversial. Care taken at the strategic planning stage may thus save a great deal of time when assessing particular development proposals. This philosophy is apparent, for example, in the EPBCA, which enables the minister to agree in writing with a person responsible for the adoption or implementation of a policy, plan or program that an assessment be made of

the relevant impacts of actions taken under the policy, plan or program.66 If these relevant impacts are assessed under such an agreement, the minister may decide on a less onerous approach for an assessment relating to an individual action under the policy, plan or program.67 Similarly, if the minister endorses a policy, plan or program embodied in an accredited management plan, he or she may declare, or make a bilateral agreement declaring, that actions approved in accordance with the management plan do not need separate approval under the processes otherwise described under the Act.68 The clear intent here is to encourage detailed and thoughtful strategic planning so that assessment of future actions undertaken under such plans will not prove as time-consuming nor, often, as controversial as in the past. 9.24 Recent amendments to the Threatened Species Conservation Act 1995 (NSW) also make provision for ‘Biodiversity Certification’ of environmental planning [page 338] instruments. Such certification can obviate the necessity to apply for separate approvals under the threatened species legislation and the Native Vegetation Act 2003 (NSW).69

Codes of practice and guidelines 9.25 Codes of practice may contain elements of strategic planning as well as practical guidance on how to conduct permitted activities. For example, a code of practice under the Conservation, Forests and Lands Act 1987 (Vic) may specify conservation practices for land management, including management practices for avoiding or minimising soil deterioration, erosion and salination; eradication and control procedures for pest plants and pest animals; procedures for tree-growing to improve the amenity and productivity of private land; and forest practices.70 The Queensland Planning Provisions 2009 (standard planning scheme provisions) Pt 8 makes provision for a standard suite of overlay schemes; for example, for good quality agricultural land, flood and inundation management, acid sulphate soils, coastal management and biodiversity. The good quality agricultural land overlay code, for example, seeks to conserve good quality agricultural land and protect it from incompatible uses, unless there is an overriding need for other uses. In Glenella Estates Pty Ltd v Mackay Regional Council [2010] QPEC 132, the court said there is an overriding need if the community’s interests which are served by the proposal can be seen to

outweigh the community’s interests in preserving the land. Need does not mean pressing need, critical need, widespread desire or anything of that nature. In context, the need must be of a nature or dimension to override the case of preserving good quality agricultural land; and in this case the need for future residential land did not overcome the identified conflict with the agricultural quality objectives. 9.26 In Victoria, guidelines have been prepared; for example, for the development of wind energy71 and for developments in potable water catchments.72 The Code of Practice for Timber Production 2007 mandates the production of forest management plans to set out detailed prescriptions for the conservation of native forest fauna, and mandates compliance with measures specified in action statements made under the Flora and Fauna Guarantee Act 1988 (Vic). It also requires, as a matter of law, the precautionary principle to be applied to decision-making.73 [page 339] Codes of practice and guidelines are also commonplace in the management of pollution, where once again they help to advise on how to put measures in place for managing effluent, waste or runoff.74 These are described further at 15.41.

Resource agreements 9.27 Agreements for the management of natural resources75 may be made between governments, between different agencies of government, or between government and private landowners.76 9.28 The Regional Forest Agreements (RFA) process provides for strategic assessment of forestry resources throughout Australia. RFAs are agreements between the Commonwealth and state governments that essentially provide a blueprint for the management of forests for a period of 20 years.77 The RFA process arose out of Australia’s National Forest Policy 1992, which, after years of bitter division over the future management of forestry resources for both conservation and exploitation, attempted to set out broad conservation and industry goals for the management of Australia’s forests. To implement the national policy, governments agreed to provide protection for forest areas that, after assessment, were required for a comprehensive, adequate and representative (CAR) forest reserve system,78 and to manage the whole forest estate, both within and outside reserves, in an ecologically

sustainable manner. RFAs are based on scientific CARs of the environment, heritage, social and economic uses, and values of the forests. Essentially, this is a strategic planning process, although these requirements are not embodied in legislation. RFA operations are not then subject either to Commonwealth export controls or the provisions of the EPBCA.79 9.29 In New South Wales, forest agreements80 may also be made between those ministers who have statutory interests in stipulated forest regions (ministers for environment and primary industries), in order to provide a basis for integrated [page 340] forestry operations; that is, integration of the regulatory regimes for environmental planning and assessment, protection of the environment and threatened species conservation.81 A forest agreement may only be made in respect of a region that has been the subject of a regional forest assessment carried out by or on behalf of the Natural Resources Commission.82 Any such assessment must include an assessment of environment and heritage values (including Indigenous heritage); economic and social values; ecologically sustainable forest management; and timber resources.83 Separate approvals under the relevant legislation for integrated forestry operations will not be required once an integrated operation is approved;84 though breaches of licence conditions consequent upon such approvals may expose a party to offences for which the licence provides a defence; for example, damage to critical habitat of threatened species or water pollution.85

Property agreements 9.30 Agreements concluded between government agencies and private landowners may enhance or enable strategic approaches to natural resources management. These appear in various forms as planning agreements, heritage agreements, conservation agreements and property agreements. Such agreements may bind the land that is ‘burdened’ with the agreement, thus binding future owners to the content of the agreement: see further 7.46 and following.86 For example, in Victoria, planning agreements may provide for: (a) the prohibition, restriction or regulation of the use or development of land; (b) the conditions subject to which land may be used or developed for

specified purposes; and (c) any matter intended to achieve or advance the objectives of planning in Victoria or the objectives of the local planning scheme.87 In South Australia, the minister, a local council or, with ministerial approval, a greenway authority,88 may enter into an agreement relating to the development, management, preservation or conservation of land.89 Conservation or enhancement of the natural environment may also be the purpose of a planning agreement in New South Wales.90 [page 341]

Environmental planning 9.31 The framework for land use or environmental planning is the most important general means for managing the environmental impacts of development, particularly at a state or local strategic or development specific level, because planning controls cut across all aspects of environmental management, influencing, for example, land degradation, biodiversity protection, pollution control, conservation of native vegetation and water quality. It is also the framework within which members of the public often get their best chance to influence strategic planning at state and local levels, as well as the ability to comment on, and sometimes to appeal, applications for development.91 9.32 Although state legislation is far from consistent, public participation in planning processes may occur at various levels, such as: responding to draft planning, environment protection or environmental management policies; making representations on development applications and environmental impact studies; and appealing development consents and approvals to exploit natural resources to specially constituted courts or tribunals. In general, it may be said, however, that there are more opportunities for public participation in strategic planning processes, such as the development of policies and plans, and in responding to development proposals, rather than in challenging the merits of individual decisions once made, where ‘third party’ rights are often quite limited or, indeed, non-existent.92

9.33 Environmental planning legislation controls the development and use of private land, and generally applies also to Crown development, though not necessarily in the same way. Usually the legislation makes it clear that the Crown either is or is not bound, or at least is not bound to the extent of any inconsistencies that might arise between planning and other enactments relating to Crown land.93 The Crown is certainly bound in New South Wales,94 Tasmania95 and the Northern Territory;96 although in New South Wales activities to be carried out by the Crown are subject to different procedures to those that govern private development.97 [page 342] In Victoria, the Planning and Environment Act 1987 s 16 states that planning schemes are binding on ministers, government departments, public authorities and municipal councils; and s 95 makes special provision for ministers and government departments seeking permits for development in accordance with a planning scheme, so presumably the Crown is effectively bound.98 Similarly, in the Australian Capital Territory, the territory, the executive, a minister or territory authority must not do any act or approve an act that is inconsistent with the Territory Plan.99 9.34 In South Australia, the Development Act 1993 ‘applies throughout the state’.100 Procedures for Crown development are specifically set out in s 49. It is clear, however, that a local council cannot enforce the provisions of its development control plan against the Crown, although it is entitled to be notified and may make known its views to the Development Assessment Commission, which will assess the proposal and report to the minister, who will make the final determination. If council expresses opposition to the development approved by the minister, or the development is seriously at variance with the local development plan, or any prescribed codes or standards, then the minister must lay a report before the parliament. The legislation does not, however, state that parliament can reject the approval given by the minister; parliament would have to enact legislation to do this. 9.35 In Queensland, the Crown is generally bound, though this provision does not apply to the functions and powers of the Coordinator-General for Environmental Assessment under the State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA).101 In Western Australia, although the Crown is generally bound by the provisions of the Planning and Development Act 2005 (WA), the Act does not restrict the ability of government, including local government, to undertake, construct or provide

any public work or take land for such purposes;102 and neither do controls over development and subdivision apply generally to Crown land.103

Environmental planning instruments 9.36 The objects of strategic environmental planning are delivered through the creation of EPIs. Legislation may specifically direct that the objects of the legislation are to be advanced or pursued in any functions undertaken,104 which would include preparation of strategic planning instruments. In Queensland, for example, the Sustainable Planning Act 2009 (Qld)105 goes further than simply expressing the objects of the legislation. Where a function or power is conferred on an entity, [page 343] the entity is instructed to perform the function or exercise the power in a way that advances the purposes of the Act.106 Advancing the purposes of the Act includes: (a) ensuring decision-making processes: (i)

are accountable, coordinated and efficient;

(ii) take account of short- and long-term environmental effects of development at local, regional, state and wider levels, including, for example, the effects of development on climate change; (iii) apply the precautionary principle; (iv) seek to provide for equity between present and future generations; (b) ensuring the sustainable use of renewable natural resources and the prudent use of non-renewable natural resources by, for example, considering alternatives to the use of non-renewable natural resources; and (c) avoiding, if practicable, or otherwise lessening, adverse environmental effects of development.107 9.37 Tasmania’s Resource Management and Planning System contains similar basic instructions.108 In South Australia, the provisions of a development plan should seek to promote the objectives of the Planning Strategy, which in turn are to reflect the objectives of the Development Act 1993 (SA).109 9.38 In New South Wales, the content of an environmental planning

instrument may include: (a) protecting, improving or utilising, to the best advantage, the environment … (e) protecting or preserving trees or vegetation, (e1) protecting and conserving native animals and plants, including threatened species, populations and ecological communities, and their habitats, (f)

controlling any act, matter or thing for or with respect to which provision may be made under paragraph (a) or (e) …

(1A) An environmental planning instrument may also make provision for or with respect to protecting and conserving vulnerable ecological communities.110

Arguably, such provisions enable planning authorities to express in EPIs more detailed requirements than may be proscribed by the legislation under which they are authorised. So long as the planning instrument does not stray ‘beyond power’ — that is, beyond the scope of the power under which the instrument is authorised — then the requirements of the instrument will be valid in law.111 An environmental planning instrument could, for example, give more meaning to concepts of ESD [page 344] than the broad objectives set out in the legislation under which the instrument is produced by requiring consideration of the benefits of renewable energy generation and the contribution of a proposal to reducing emissions of greenhouse gases,112 by seeking to protect productive agricultural land,113 and by more precise conditions designed to protect natural, cultural and scientific values.114 9.39 Generally speaking, strategic planning takes place at three different levels: state, regional and local. These dimensions may be contained within the one planning document or published separately. For example, the framework for state planning policy in Victoria115 or Queensland116 may be found attached to each local planning scheme. In New South Wales, on the other hand, the objectives of the legislation are to be achieved through the preparation and publication of separate environmental planning instruments (EPIs), state environmental planning policies (SEPPs) and local environmental plans (LEPs).117 Jurisdiction, and thus the responsibilities and powers of planning authorities, however, tend to follow local government boundaries and central government administrative arrangements rather than natural environmental boundaries, such as catchments, thus ensuring that strategic planning for regional environmental protection and natural resource management (NRM) has often been of limited effectiveness.118 With a new emphasis on whole-of-

government or integrated natural resources management, however, this is beginning to change.119 [page 345] 9.40 Although EPIs would normally be intended to be legal instruments, in the sense that they may impose mandatory and enforceable criteria and processes on decision-making,120 this is not always the case and the legislation must be scrutinised to determine the exact nature of these instruments. For example, in St Helen’s Area Landcare and Coastcare Group Inc v Break O’Day Council (2007) 151 LGERA 421, the Tasmanian Coastal Policy was held to be more in the nature of a statement of policies, rather than a regulatory instrument. This was because nowhere in the policy was any indication that the provisions of the policy were to be applied by local councils when determining planning applications. The policy expressed desired outcomes rather than mandatory considerations applying to any particular processes. 9.41 Other states may attach a greater or lesser degree of legal status to EPIs. In Queensland, a state planning policy is a legal instrument that ‘has effect throughout the state unless the policy states otherwise’.121 Other planning instruments122 also have the force of law. A decision on an application for development must not ‘conflict with the planning scheme, unless, amongst other things, there are sufficient grounds to justify the decision despite the conflict’.123 This suggests a certain measure of discretion in the application of planning schemes — an issue that has been the subject of court proceedings on more than one occasion under the previous legislation.124 In South Australia,125 a Planning Strategy for development within the state ‘may incorporate documents, plans, policy statements, proposals and other material designed to facilitate strategic planning and coordinated action on a statewide, regional or local level’.126 The legislation makes it clear, however, that the Planning Strategy is not a legal document; rather, it is ‘an expression of policy formed after consultation within government and within the community and does not affect rights or liabilities’.127 The Planning Strategy, therefore, will not prevail over any inconsistencies in local or regional development plans.128 On the other hand, in Tasmania, Sustainable Development Policies made under the State Policies and Projects Act 1993 clearly prevail over inconsistencies in local planning schemes and other stated plans.129 [page 346]

9.42 The interrelationship of EPIs with plans for natural resources management under the more recent natural resources management legislation, discussed at 9.63 and following, is often not entirely clear. Although authorities must generally have regard to such plans when making resource management plans,130 the relationship between them is not directly engaged, and the courts have occasionally been called on to determine the precise relationship between the different regimes when decision-making under one regime appears to conflict with the requirements of another.131 9.43 EPIs commonly seek to achieve their objectives by introducing requirements for development consent for projects and activities; by prohibiting certain types of development; by requiring EIA for certain categories of development; and by requiring ministerial concurrence in relation to specified projects and activities. These issues are discussed in the following chapters. Inconsistency between instruments is generally dealt with by according priority to state plans and policies over local plans.132

State and regional environmental planning 9.44 State and regional planning instruments may appear as state policies,133 or regional strategies may be separately formulated.134 The statutory planning authority for state policies is usually the minister. State policies enable the government to address planning issues of state and regional135 significance, not only for the implementation of social and economic objectives, but also for matters of environmental significance:136 the protection of important natural features and areas such as coastlines;137 the [page 347] management of particular natural resources, such as water,138 and native vegetation;139 dealing with particular environmental problems such as contaminated lands;140 or protecting particular ecosystems, such as wetlands141 and rainforests,142 or even individual species and their habitats, such as koalas.143 In Victoria, ‘to assist in providing a consistent and co-ordinated framework for planning schemes in Victoria, the minister may prepare and approve standard planning provisions to be called the Victoria Planning Provisions’ (VPP).144 The state section of every local planning scheme now introduces principles relating to protection of catchments, salinity, conservation of native fauna and flora, coastal areas, and heritage, with more particular provisions

aimed at conservation of native vegetation. There are separate regional strategies for particular areas.145 9.45 The advantage of a state or regional plan is that implementation of the government’s objectives is not left to the discretion of individual planning authorities (local councils), which might vary in their commitment to the objectives of plans and apply a diverse range of different approaches and standards to their realisation.146 Statewide or regional planning enables the government to coordinate a response to a particular matter of environmental concern and require a uniform and consistent approach from state and local government, applying common standards throughout the state. Local planning authorities may retain some discretion over proposed development, but in exercising that discretion they will be required to apply the criteria and procedures stipulated in the state plan. The expectation here is ‘that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable use and development of land’.147 [page 348] 9.46 Regional planning is traditionally the planning of land use, generally by reference to a combination of neighbouring local government boundaries rather than by reference to natural features. It is often used to plan for the purpose of integrating land use planning with the provision of infrastructure and delivery of social services, but can be used to integrate traditional land use and NRM strategies into a harmonious whole-of-government planning regime for a particular region of a state. For example, it has been said of the ambitious South East Queensland Regional Plan148 that ‘one of the desired regional outcomes of the Plan is a healthy and diverse regional landscape where key environmental, natural resource and rural production areas are protected, enhanced, used sustainably and adaptively managed’.149 Regional planning can also be used to adopt a bioregional, rather than a jurisdictional, approach to management of natural resources,150 but in general this has not been the case, although there are signs that the need for a more strategic catchment or regionally based approach for managing natural resources is starting to be appreciated.151 9.47 Another form of environmental planning policy may be introduced in New South Wales through the powers of the minister under the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 117 to issue directions to councils that, in preparing a draft local environmental plan,

provisions must be included that will give effect to such policies or objectives as are specified in the direction. This power has been used, for example, to require many coastal councils to give effect to the New South Wales Coastal Policy 1997. 9.48 The ability of the public to participate in the preparation of state and regional planning instruments varies, because in general, unlike in the preparation of local schemes, public participation is generally not guaranteed by the legislation,152 although the relevant authority, usually the minister, may be given powers to consult153 and in practice will often do so. However, there are times when public consultation may not be appropriate; for example, when introducing legal measures to control the clearance of native vegetation, where experience has shown that prior consultation over draft proposals may well lead to accelerated rates of clearing before the laws [page 349] are introduced.154 Consultation with other government agencies, particularly those concerned with protection of threatened species, may, however, be required.155

Local environmental planning 9.49 Detailed planning schemes or local environmental plans guide land use and development at local government level. A local council or other relevant planning authority156 prepares local environmental plans, subject generally to direction and/or approval by the state planning authority, which for this purpose may be the minister.157 Draft plans are usually made available for public consultation;158 and consultation may also have to be undertaken with other government agencies, particularly those responsible for protection of threatened species.159 The process of public consultation by exhibition of a draft plan may lead to invalidity if the material presented would be misleading to a reasonable reader. ‘Misleading’ may be demonstrated by the fact that the document requires accompanying explanatory material that is not exhibited and that a decision not to exhibit that material is manifestly unreasonable. Where a local plan is being amended, however, a person is assumed to be able to understand the interrelated nature of the documentation placed on public exhibition, and it is not ‘misleading’ if all the relevant documentation needed to understand those relationships is placed on exhibition.160

[page 350] 9.50 Local plans indicate what sort of activities will be permitted or restricted in certain areas, and on what general conditions. They usually do this by ‘zoning’ land; that is, indicating its suitability for particular uses, prohibiting inconsistent uses and granting discretions to the local planning authority to decide in other cases whether a proposed development or use of land may or may not be inconsistent with the purpose of the zoning. For example, common broad zoning provisions would identify residential and industrial areas in which activities common to one would be prohibited in the other. This is not only to protect residences from nuisances occasioned by industrial development, but also to protect industry from increasing complaints arising out of encroaching residential development. Inevitably, problems arise where incompatible uses begin to encroach on each other. This happens not only where the boundaries of different zones meet, but also may arise through the exercise of discretions vested in the local authority to approve certain discretionary uses in a particular zone; for example, quarry development or poultry farms in areas zoned ‘rural/residential’. The potential impact on local amenity must be met by the imposition of suitable conditions on the planning permit. 9.51 Zoning can also recognise the desirability of protecting natural and cultural features such as coastlines,161 heritage areas, scenic features such as foreshores, and important ecological habitats, particularly where central government controls do not already apply to such features in the form of statutory requirements introduced by other legislation, or special procedures for assessment of applications for development required by state environmental planning policies (SEPPs). 9.52 Local plans set the ground rules for proposed development. As legal instruments, their provisions have to be followed in determining applications for development. Failure to apply the mandatory requirements of EPIs may lead to any consent being declared invalid.162 Development control is considered further in Chapter 10.

Existing uses 9.53 The introduction of a local planning scheme does not, of course, automatically mean that all non-conforming uses of land within the area covered by the scheme have to cease or close down. A scheme must take account of existing uses, so that where the zoning of land changes, with the result that certain uses that were previously permitted are no longer

considered acceptable, only future, not existing, operations are affected. Existing non-conforming uses are generally allowed to continue by legislation until they determine naturally or are abandoned,163 but they are not allowed [page 351] to expand, intensify or otherwise significantly increase the scope of their operations.164 The use for which protection is sought as an existing use must be identifiable as the use commenced lawfully, which can be determined by asking what, according to ordinary terminology, was the appropriate designation of the use of the premises at the material date.165 Existing use rights are more in the nature of a privilege than a right,166 and the onus is on the person claiming existing use rights to justify their claim.167 These ‘existing use’ provisions may be extremely inconvenient to broadscale environmental policy planning. For example, the South Australian government first tried to control the wholesale clearance of native vegetation in that state by including within the term ‘development’ for which a permit was required, native vegetation clearance on rural land. The High Court held, however, in Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105, that such clearance was protected as an ‘existing use’.168 Subsequently, the South Australian government, by legislative intervention, set up a separate permitting authority to control native vegetation clearance.169 9.54 ‘Existing use’ only applies, however, to environmental planning processes and not to other environmental permitting authorities, such as those responsible for pollution control, or to EA procedures. Non-conforming uses, therefore, have to comply with the permitting requirements of other control agencies or additional EA requirements,170 and the incompatibility of an existing use with other neighbouring developments may indeed make compliance more difficult or lead to the imposition of stricter conditions. Sometimes the requirements of the environmental protection authorities may, therefore, effectively deny an existing use the right to continue. [page 352]

Environmental considerations in land use planning 9.55 As already indicated, the permissible content of EPIs is very broadly articulated by the legislation, and extends to all manner of environmental considerations.171 In New South Wales, it used to be compulsory to prepare

an environmental study before drawing up a local environmental plan; however, this provision has been repealed. In its place is a requirement that the relevant planning authority must prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making it. The plan will need to go out for community consultation172 before being signed off by the minister;173 and the plan as approved must not be significantly different from the plan as exhibited. In Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128, the court set aside a local environmental plan because the plan as approved differed in significant respects from the draft plan that had been exhibited, most notably in its treatment of biodiversity. 9.56 In Victoria, when preparing a scheme, planning authorities are directed to take into account significant effects that the scheme might have on the environment.174 Otherwise, the procedures for ensuring consideration of environmental factors are uncertain, although planning scheme amendments are frequently exhibited together with EIAs prepared under the Environment Effects Act 1978 (Vic).175 9.57 In Queensland, key elements of regional planning schemes are that they should, among other things, identify the environmental, economic and cultural resources to be preserved, maintained or developed;176 and of local plans that they should identify strategic outcomes for the planning scheme area and include measures that facilitate that outcome.177 Interestingly, the inclusion of performance indicators to assess the achievement of the desired environmental outcomes, which were required under the repealed legislation, are not specifically mentioned in the new legislation. Core matters for planning schemes include ‘valuable features’, which are defined as, whether terrestrial or aquatic: (a) resources or areas that are of ecological significance, including, for example, habitats, wildlife corridors, buffer zones, places supporting biological diversity or resilience, and features contributing to the quality of air, water (including catchments or recharge areas) and soil; (b) areas contributing significantly to amenity, including, for example, areas of high scenic value, physical features that form significant visual backdrops or that frame or define places or localities, and attractive built environments; [page 353] (c) areas or places of cultural heritage significance, including, for example,

areas or places of Indigenous cultural significance, or aesthetic, architectural, historical, scientific, social or technological significance, to the present generation or past or future generations; and (d) resources or areas of economic value, including, for example, extractive deposits, fishery resources, forestry resources, water resources, sources of renewable and non-renewable energy, and good-quality agricultural land.178 Temporary local planning instruments may be made where there is a significant risk of serious environmental harm, within the meaning of the Environmental Protection Act 1994, or serious adverse cultural, economic or social conditions occurring in the planning scheme area, and the delay involved in using normal processes to amend the planning scheme would increase the risk.179 9.58 In South Australia, development plans are to ‘facilitate sustainable development and the protection of the environment’ and ‘to encourage the management of the natural and constructed environment in an ecologically sustainable manner’;180 and may set out or include planning or development objectives or principles relating to such matters and ‘the management or conservation of land, buildings, heritage places and heritage areas’, and designate trees and groups of trees as significant trees.181 Development plans are to promote the overall Planning Strategy. Plans and the Strategy serve as guidelines against which any proposed development is to be assessed. The minister, in approving such plans, must routinely assess and give weight to competing interests such as benefits, opportunities lost, cost and resources.182 9.59 In Western Australia, statements of planning policy that were formulated under the repealed Town Planning and Development Act 1928 (WA) will continue in force until replaced by state planning policies prepared under the Planning and Development Act 2005 (WA).183 The former Act listed matters that might be dealt with in town planning schemes, including conservation of the natural features of an area and preservation of trees.184 However, since this Act was formulated well before more modern provisions for incorporating environmental protection objectives in planning instruments, local planning authorities were offered no further guidance by legislation. The current legislation simply states that relevant to the preparation of a state planning policy are ‘conservation of natural or cultural resources for social, economic, environmental, ecological and scientific purposes’.185 Environmental review [page 354]

appears to be discretionary in relation to state planning policies,186 but is mandatory in relation to regional and local planning schemes.187 The requirement for an environmental review is triggered by the Environmental Protection Authority (EPA) acting under the Environmental Protection Act 1986 (WA) s 48C(1)(a). This provision allows the EPA to ‘require the responsible authority, if it wishes that scheme to proceed, to undertake an environmental review of that scheme and report on it to the Authority, and issue to the responsible authority instructions concerning the scope and content of that environmental review’. The EPA will then report to the minister on the environmental factors relevant to the scheme and make such recommendations, including conditions to which the scheme should be subject, as it sees fit.188 Any disputes between the environment and planning ministers over the necessity for or content of instructions or advice, compliance with directions, or the need for conditions to be attached to the planning scheme, may ultimately be referred to the Governor for resolution.189 9.60 In Tasmania, planning schemes must (1) seek to further the objectives of the resource management and planning system as a whole, as well as the objectives of the legislation; (2) must be prepared in accordance with state policies; and (3) may make provision for the conservation and protection of any land.190 The objectives include: the promotion of sustainable use and development; maintenance of ecological processes and genetic diversity; conservation of heritage; and generally, to ensure that effects on the environment are considered.191 9.61 The Northern Territory Planning Scheme includes land use objectives, which are statements of policy in respect of the use or development of land.192 9.62 In the Australian Capital Territory, the statement of strategic directions in the Territory Plan may contain planning principles, including principles for sustainable development. The function of the statement of strategic directions is, among other things, to guide EISs, planning reports and SEAs.193 Major land use initiatives or variations to the Territory Plan may be subjected to SEA.194

Integrated strategic planning 9.63 Integrated strategic planning that combines traditional environmental

planning with natural resources management (NRM) is developing from the recognition that dividing natural resources and environmental values into different pigeon-holes for administrative purposes and allocating legal responsibilities for management to state [page 355] and local government authorities under different legislative regimes that often have no connection the one with the other, fails to recognise the reality that the environment is an integrated unit where different facets that make up the whole depend upon each other. Developing effective policy for NRM, however, must also engage with social, economic and political considerations; in other words, ecological and governance issues must come together in a way that is effective, efficient and fair to all stakeholders, including the environment itself.195 Attempts to introduce integrated NRM are beginning to emerge through catchment-based and other regional and statewide approaches to NRM. The EPBCA, for example, recognises the potential for bioregional planning, enabling, but not requiring, the minister to prepare bioregional plans for Commonwealth areas and, in cooperation with other states or territories, for bioregions that extend also outside Commonwealth areas.196 The public is to be consulted on the draft plan, which may include provisions about the components of biodiversity, their distribution and conservation status; important economic and social values; and priorities, strategies and actions to achieve the specified objectives. 9.64 Regional environmental planning is particularly recognised in catchment-based approaches to protection of natural resources. The principal objectives of Water NSW, for example, include the management of catchment areas and catchment infrastructure so as to promote water quality, the protection of public health and public safety, and the protection of the environment; and where its activities affect the environment, to conduct its operations in compliance with the principles of ESD.197 The Act makes provision for particular management arrangements for declared catchment areas and special and controlled areas to enhance protection and management of such areas and protect water quality.198 Additionally, under the Water Management Act 2000 (NSW), a management plan for a water management area may contain a number of environmental protection provisions controlling development.199 More ambitious plans for integrated management of natural resources in New South Wales are now in place under the Natural Resources Commission

Act 2003, Local Land Services Act 2013 and Native Vegetation Act 2003 (NVA). The combined effect of this legislation is that a Natural Resources Commission200 recommends to the government statewide standards and targets for natural resources management, which extend to water, native vegetation, salinity, soil, biodiversity, coastal protection, [page 356] forestry, and some marine environment issues. Although not specifically stated in the legislation,201 it seems that once approved, it is the job of Local Land Services202 to prepare a state strategic plan to implement the statewide standards and targets, and provide and facilitate education and training in connection with NRM.203 Local boards will develop local strategic plans.204 The stated objects of the Local Land Services Act 2013 (NSW) include (s 3): (e) to ensure the proper management of natural resources in the social, economic and environmental interests of the State, (f)

to apply sound scientific knowledge to achieve a fully functioning and productive landscape,

(g) to encourage collaboration and shared responsibility by involving communities, industries and non-government organisations in making the best use of local knowledge and expertise in relation to the provision of local land services, (h) to establish mechanisms for the charging of rates, levies and contributions on landholders and fees for services, (i)

to provide a framework for financial assistance and incentives to landholders, including, but not limited to, incentives that promote land and biodiversity conservation.

Functions of local boards include to communicate, consult and engage with the community in developing plans and in respect of the delivery of programs and services by Local Land Services in the eleven regions established under the Act.205 Approvals of property vegetation plans (PVPs), which may be delegated by the minister to Local Land Services, under the Native Vegetation Act 2003 (NSW), that enable consent to be obtained for land clearing, must have regard to any relevant provisions of local strategic plans made under the Local Land Services Act 2013 (NSW).206 The content of a PVP may include proposals to enable landholders to obtain financial incentives for the management of natural resources, being proposals relating to the carrying out or funding of native vegetation management activities by Local Land Services or other bodies.207 9.65 Community opposition to coal seam gas mining and projected impacts on aquifers, agricultural and rural/residential land in New South Wales has also recently triggered the formation of a Strategic Regional Land Use Policy to protect strategic agricultural land, including viticulture and equine pursuits.208 The Policy will be

[page 357] implemented by Strategic Regional Land Use Plans209 for each region, and other related initiatives such as the Aquifer Interference Policy210 and Code of Practice for Coal Seam Gas.211 The Aquifer Policy is a mandatory consideration when assessing applications for mining development on strategic agricultural land.212 Development consent cannot be granted for mining on strategic agricultural land without the provision of a ‘gateway certificate’ which states that, in the opinion of the ‘Gateway Panel’, the application meets the specified criteria for protection of the values of such land.213 Priority agricultural areas and strategic cropping land have also become the focus of new initiatives in Queensland, again partly fuelled by the prospects of increased coal seam gas exploration.214 Strategic cropping areas, previously protected under the Strategic Cropping Land Act 2011 (Qld) (now repealed), and priority agricultural areas, have become areas of regional interest under the Regional Planning Interests Act 2014 (Qld), which inter alia aims to protect the productivity of land that is highly suitable for cropping and highly productive agriculture for future generations by managing the impacts of development and requiring approvals for activities that might impact on the attributes or values of such areas,.215 This Act also extends similar controls to strategic environmental areas, such as Fraser Island and Hinchinbrook.216 9.66 South Australia has a State Natural Resource Management Plan that sets policies, goals, priorities and strategies to promote integrated and ecologically sustainable use of natural resources.217 The Natural Resources Management Act 2004 (SA) also establishes a Natural Resource Management (NRM) Council and eight Regional Natural Resource Management Boards, whose responsibilities include delivery of state and regional NRM plans and water allocation plans.218 On the ground, development and implementation of regional plans seems to be delegated to NRM groups established by the boards. [page 358] Both boards and groups have general powers to ‘provide for the care, control, management, conservation or preservation of any natural resource’,219 and boards may carry out works and require private landowners who fail their statutory duty of care for resource management220 to prepare and implement action plans. It is not entirely clear, from the legislation, just how the provisions of NRM plans will be carried out, and how they will relate to other instruments of management developed under existing though

complementary legislation such as the Pastoral Land Management and Conservation Act 1989.221 The legislation does state, however, that a regional NRM board may implement a plan, with ministerial consent;222 and that a plan may confer discretionary powers.223 By contrast, a water allocation plan, prepared also by a regional NRM board,224 clearly is relevant to the issue of water licences.225 9.67 Regional strategies for natural resources management are also provided for under the Natural Resources Management Act 2002 (Tas). 9.68 Western Australia appears to concentrate upon building integrated management approaches through internal government coordination and interaction, and through interaction between stakeholders led by a NRM Leaders Group representing six regional NRM organisations.226 These bodies do not have a statutory base. 9.69 Victoria has had a Catchment Management Council and Catchment Management Authorities for more nearly 20 years.227 The council primarily provides policy advice;228 the authorities prepare regional catchment strategies and special area plans and coordinate and monitor their implementation.229 Strategies and plans, however, do not appear to be legally binding,230 although they must be taken into account in exercising functions relating to land management;231 and CMAs do have management powers under the Water Act 1989 (Vic) and management plans approved under that Act are legally binding.232 It appears that regional catchment strategies approved under the Catchment and Land Protection Act 1994 are intended to be implemented through other plans or strategies, including regional vegetation plans, regional drainage plans, regional development plans, catchment action plans, landcare [page 359] plans, and management plans for roadsides, soil, salinity, water quality and nutrients, floodplains, heritage rivers, river frontages and waterways.233 Although Victoria appears to have embraced the principles of integrated catchment management, legislative reform appears to lag behind the practice.234

National strategies and policies 9.70 Reference was made in Chapter 5 to the role of the federal government in helping to encourage and draw up national strategies and

policies with respect to national resources management and environmental issues, such as oceans, the coastline, biodiversity, climate change, weeds and salinity. Although not legal instruments, these documents nevertheless set out principles for environmental management that may be regarded as a strategic approach to management, to be subsequently taken up by state legislation or policies. Such strategies frequently stress the necessity for integrated management of natural resources.235 National Environment Protection Measures (NEPMs), described in more detail at 15.4, may be enforced through their adoption as state EPPs.

Cumulative impacts 9.71 One of the criticisms of EA processes that centre on the evaluation of particular developments or activities, or even more strategic or forward planning processes, is that the cumulative impact of decision-making on natural resources is frequently overlooked. For example, while the environmental impact of a single decision may be assessed, what about the cumulative impact of dozens, or hundreds, or even thousands of similar decisions?236 9.72 This failure of strategic planning was recognised by the InterGovernmental Agreement on the Environment 1992 (IGAE), under which the parties agreed that policy, legislative and administrative frameworks to determine the permissibility of land use, resource use or development proposals should provide for the assessment of the regional cumulative impacts of a series of developments and not simply the consideration of individual development.237 It would be no surprise to learn that the cumulative impacts of activities in Antarctica are of particular concern,238 but elsewhere, there is in fact little reference in legislation to cumulative impact assessment. 9.73 One exception is the Water Management Act 2000 (NSW), which requires that the Act should be administered in accordance with the water management principles outlined in the Act.239 These principles include that ‘the cumulative impacts [page 360] of water management licences and approvals and other activities on water sources and their dependent ecosystems, should be considered and minimised’.240 Another is in South Australia, where fulfilment of the general statutory duty to act reasonably in relation to the management of natural

resources within the state may depend, among other things, on the extent to which an act or activity may have a cumulative effect on any natural resources.241 The necessity for cumulative impact assessment does, however, appear to be recognised often by EPIs, particularly local plans. For example, it may be relevant to evaluate the cumulative impact of development on catchments242 and groundwater, 243 or cumulative impacts of incremental development of wind farms.244 9.74 Failure to specify cumulative impacts as a necessary component of decision-making does not, of course, mean that such impacts could not be taken into account: cumulative impacts are unlikely to be regarded as irrelevant considerations.245 But specific inclusion of such considerations would, of course, help to focus attention on this aspect of SEA and indeed make it a mandatory relevant consideration in decision-making.246

Strategic planning and project control 9.75 It will have become apparent by now that one of the primary purposes of strategic environmental planning is to set the parameters for future development control and resource allocation. Development control is the subject of Chapter 10; EIA of proposals for development is dealt with in Chapter 11; protecting and managing impacts on biodiversity in Chapters 12–14; management of natural resources is discussed in Chapter 18; pollution control and waste management in Chapters 15–16; and coping with climate change in Chapter 17.

1.

See 3.9.

2.

The ability of a decision-maker to reject the policy underlying a strategic planning instrument would be antithetical to the fundamental objective of promoting consistency in decision-making – that individual decisions should be consistent with the overall plan: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226.

3.

Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 5. See also, for example, Planning and Environment Act 1987 (Vic) s 4(1)(a); Development Act 1993 (SA) s 3(a). See also Bradbury, ‘Reality or Rhetoric: The Implementation of Ecologically Sustainable Development in the NSW Environmental Planning System’ (1997) 3 LGLJ 86.

4.

For example, Sustainable Planning Act 2009 (Qld) s 3 (the purpose of this Act is to seek to achieve ecological sustainability by: (a) managing the process by which development takes place, including ensuring the process is accountable, effective and efficient, and delivers sustainable outcomes; and (b) managing the effects of development on the environment, including managing the use of

premises; and (c) continuing the coordination and integration of planning at the local, regional and state levels); Fisheries Management Act 2007 (SA) s 7(1)(a); Sustainable Forests (Timber) Act 2004 (Vic) ss 1 and 5; Water Management Act 2000 (NSW) s 3. In Western Australia the EPA gives ‘strategic advice’ though this tends to be linked to specific projects or activities; Environmental Protection Act 1987 s 16(e). For current advice, see . 5.

For example, Planning and Development Act 2007 (ACT) s 49; Sustainable Planning Act 2009 (Qld) s 3; Planning and Environment Act 1987 (Vic) ss 4 and 6(1)(a).

6.

For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 73; Planning and Environment Act 1987 (Vic) s 12B; Integrated Planning Act 1997 (Qld) s 2.2.1.

7.

Buckley, ‘Strategic Environmental Assessment’ (1997) 14 EPLJ 174, identifies a number of types of strategic environmental assessment (SEA): policy, issue-based, geographical, temporal, technological, sectoral and generic-project. Applying environmental assessment (EA) to proposals for legislation, as well as to the application of government policy initiatives, is not a feature of legislation and takes place, if at all, through internal government assessment. Clearly, however, the policies of government agencies that regulate the use and extraction of natural resources, as well as government policies in general, such as those that create economic subsidies for petroleum or fertiliser, can conflict with those of environment protection agencies; and so arguably there should be more SEA of government policies, plans and proposals: see generally Marsden, ‘Applying EIA to Legislative Proposals: Practical Solutions to Advance ESD in Commonwealth and State PolicyMaking’ (1997) 14 EPLJ 159.

8.

Hutchings, ‘Strategic Land Use Planning: Experiments in Legislation and Governance’ (2006) 23 EPLJ 426.

9.

See further Chapter 10.

10. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 34A. 11. For example, Native Vegetation Act 2003 (NSW) s 14. 12. See Hanwood Pastoral Co Pty Ltd v Director-General, Dept of Natural Resources (2005) 144 LGERA 139; Rowe v Lindner [2006] SASC 176; Vitality Care Pty Ltd v Director-General, Dept of Natural Resources [2006] NSWLEC 506. 13. The Crown has always had a ‘prerogative right’ to gold and silver, which is preserved, for example, in the Mining Act 1992 (NSW) s 379. Section 379AA of this Act also declares Crown ownership in uranium. Other states assert more extensive control; for example, Mineral Resources Act 1989 (Qld) s 8 (Crown’s property in minerals); Mining Act 1971 (SA) s 16 (property in all minerals is vested in the Crown); Mineral Resources (Sustainable Development) Act 1990 (Vic) s 9 (Crown owns all minerals). 14. For example, Petroleum (Onshore) Act 1991 (NSW) s 6 (petroleum, helium and carbon dioxide is the property of the Crown); Geothermal Energy Act 2010 (Qld) s 28 (geothermal energy the property of the state); Petroleum and Geothermal Energy Act 2000 (SA) s 5 (property in petroleum and other regulated resources, such as geothermal energy, is vested in the Crown). 15. For example, Water Management Act 2000 (NSW) s 392 (state’s water rights); Water Act 1989 (Vic) s 7 (Crown’s rights to water); Water Management Act 1999 (Tas) s 7 (all rights to taking of water vested in the Crown). 16. Planning and Development Act 2007 (ACT); Crown Lands Act 1989 (NSW); Crown Lands Act 1992 (NT); Pastoral Land Act 1992 (NT); Land Act 1994 (Qld); Crown Lands Act 1929 (SA); Crown Lands Act 1986 (Tas); Land Act 1958 (Vic); Land Administration Act 1997 (WA). 17. See Chapter 12. 18. See further 7.21.

19.

See Brown v Forestry Tasmania (No 4) [2006] FCA 1729; Forestry Tasmania v Brown [2007] FCAFC 186; and on the Regional Forests Agreement process, see 16.68 and see generally Barlett, ‘Regional Forest Agreements — A Policy, Legislative and Planning Framework to Achieve Sustainable Forest Management in Australia’ (1999) 16 EPLJ 328. See also Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178; FCAFC 175 (forestry operations in connection with proposed pulp mill).

20. See Commonwealth v Tasmania (1983) 46 ALR 625 (the Tasmanian Dam case) discussed at 5.11. 21. See Bonyhady, Places Worth Keeping, Federation Press, Sydney, 1992; and, for example, Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2012] FCA 403 (challenge to extension to Olympic Dam copper, uranium, gold and silver mine); Barrington — Gloucester — Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197 (challenge to the issue of an exploration licence for coal seam gas). 22. This may be accompanied by the conclusion of negotiated ‘franchise’ agreements and passage of special legislation authorising the allocation: see 10.64 and following. 23. For example, the Fraser Island Inquiry and Ranger Uranium inquiries constituted under the (now repealed) Environment (Impact of Proposals) Act 1974 (EPIP Act), and the Helsham Inquiry into the World Heritage Values of the Lemonthyme and Southern Forests in Tasmania. 24. Such as the now defunct Commonwealth Resource Assessment Commission, the Commonwealth Productivity Commission, the Victorian Environmental Assessment Council or the Tasmanian Planning Commission (TPC). 25. Land Conservation Council Act 1970 (Vic) s 5(1)(a). 26. Victorian Environmental Assessment Council Act 2001 s 6. For information about investigations, see . 27. Public Land (Administration and Forests) Act 1991 (Tas) s 14. 28. Established under the Public Land (Administration and Forests) Act 1991 (Tas). 29. Established under the Resource Planning and Development Commission Act 1997 (now the Tasmanian Planning Commission Act 1997). 30. For current assessments and reviews, see . 31. The use and management of Crown lands is currently under review; see . 32. These provisions do not apply to land in the Western District: Western Lands Act 1901 s 2A and Sch B. 33. Though the minister may deal with the land without assessment if this in the public interest so long as the management principles are taken into account: ss 35, 85 and 91. 34. Sections 31–34. 35. See 9.16. 36. See also Chapters 12–18. 37. For example, Western Lands Act 1901 (NSW) s 18D (1)(d); Pastoral Land Management and Conservation Act 1989 (SA) ss 7 and 22(1)(b); Mineral Resources (Sustainable Development) Act 1990 (Vic) s 78. It is not so long ago that lessees of Crown land were required to effect ‘improvements’ by clearing the land of vegetation. On the history of pastoral leases, see Holmes, ‘Pastoral Lease Tenures as Policy Instruments, 1847–1997’ in Dovers (ed), Environmental History and Policy: Still Settling Australia, Oxford University Press, Melbourne, 2000. 38. See further 7.46 and 9.26 and following. 39. See further Chapter 13.

40. For further detail see Chapter 18. 41. See further Chapter 22. 42. See also Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151; Lamason v Australian Fisheries Management Authority [2009] FCA 245 at [183]: ‘the question of validity in the present case is whether the determination of the Management Plan goes beyond what could reasonably be adopted for the purpose of allocating statutory fishing rights in the Fishery and promoting the economic efficiency of the Fishery, it not being enough that the Court itself might think that the Plan as amended inexpedient or misguided: see South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 at 168’. This and other grounds of action for challenging administrative decisions are discussed in Chapter 22. Following the declaration of invalidity in Austral Fisheries, charges brought against operators for infringements of fishing quotas were also dismissed: see Coleman v Gray (1994) 133 ALR 328. 43. For example, Fisheries Management Act 1991 (Cth) s 17(9); Fisheries Management Act 1994 (NSW) s 7D; Conservation and Land Management Act 1984 (WA) s 56. 44. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 316(3) and 323. 45. Sections 328(3) and 323. 46. Sections 338 and 340. 47. Sections 348, 366 and 367(3). 48. National Parks and Wildlife Act 1974 (NSW) (NPWA) s 72(2). 49. Section 72(4). 50. Nature Conservation Act 1992 (Qld) s 117. 51. Conservation and Land Management Act 1984 (WA) ss 54–56. 52. Fisheries Management Act 1991 s 17(5). The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 148 also requires that before the Australian Fisheries Management Authority (AFMA) determines a plan of management for a fishery, the authority must make an agreement with the Environment Minister under s 146 for assessment of the relevant impacts of actions under the plan, and consider any recommendations made by the minister under the agreement. 53. Section 17(6). 54. Section 3. 55. Section 17(6D). 56. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 285. 57. For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 269; Threatened Species Conservation Act 1995 (NSW) ss 56 and 74; Threatened Species Protection Act 1995 (Tas) ss 25 and 27. 58. For example, Fisheries Management Act 1991 (Cth) s 17; National Parks and Wildlife Act 1974 (NSW) (NPWA) s 75; Water Management Act 2000 (NSW) ss 38 and 39. 59. For example, Fisheries Management Act 1991 (Cth) s 17(10); and see Secretary of Dept of Primary Industry v Collins (1992) 106 ALR 351; Re Naga (1990) 20 ALD 697; Re Warren (1990) 20 ALD 729; EPBCA ss 318 and 330; or at least take ‘all reasonable steps’ to act in accordance with a plan: see, for example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 286; Natural Resources Management Act 2004 (SA) s 152; and see Minister for Environment and Conservation v Simes (2007) 153 LGERA 225. 60. For example, National Parks and Wildlife Act 1972 (SA) (NPWA) s 40; Bridgetown-Greenbushes

Friends of the Forest Inc v Executive Director of the Department of Conservation & Land Management (1997) 94 LGERA 380; Michelmore v Minister for Environment and Conservation (2004) 137 LGERA 306. 61. See also MyEnvironment Inc v VicForests [2012] VSC 91; Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154 (planning and siting of landfills must comply with the provisions of each relevant regional waste management plan and any solid industrial waste management plan). 62. For example, Minister for Environment and Conservation v Simes (2007) 153 LGERA 225; Australian Fisheries Management Authority v Gilmore [2009] FCA 1369. 63. Native Vegetation Act 1991 (SA) s 26; Native Vegetation Regulations 1991 (SA) cl 3. 64. 92 LGERA 117 at 126. 65. See 9.71. 66. Section 146. 67. Section 87. 68. Section 146. 69. Threatened Species Conservation Act 1995 (NSW) ss 126B–126O. On biodiversity certification, see further 13.99. 70. Section 32. 71. See Department of Planning and Community Development, Victoria, Policy and Planning Guidelines for Development of Wind Energy Facilities in Victoria, 2015. Available at . 72. Department of Sustainability and Environment, Victoria, Guidelines for Planning Permit Applications in Open, Potable Water Supply Catchment Areas, 2012. Available at . 73. See Environment East Gippsland Inc v VicForests [2010] VSC 335; MyEnvironment Inc v VicForests [2012] VSC 91; [2013] VSCA 356 74. For example, Urban Stormwater Best Practice Environmental Management Guidelines (BPMEG), CSIRO, 1999. 75. See generally Foley, ‘Negotiating Resource Agreements: Lessons from ILUAs’ (2002) 19 EPLJ 267. 76. For property-specific agreements with landowners, see 7.46 and following. 77. See . And for further commentary on RFAs, see 18.68 and following. 78. The purpose of the national reserve system (NRS) is to safeguard biodiversity, old growth, wilderness and other natural and cultural values of forests. ‘CAR’ is defined as follows. Comprehensive: includes the full range of forest communities recognised by an agreed scientific classification at appropriate hierarchical levels. Adequate: the maintenance of the ecological viability and integrity of populations, species and communities. Representative: those sample areas of the forest that are selected for inclusion in the reserves should reasonably reflect the biotic diversity of the communities. The following criteria were applied to establish the reserve system: ‘15% of the distribution of each forest ecosystem that existed prior to Europeans arriving in Australia; 60% or more of existing old growth forest; 90%, or more, of high quality wilderness. Forest values are to be protected through codes of practice and other management standards in those areas’. 79. Regional Forest Agreements Act 2002 (Cth); and on the EPBCA and RFAs, see 6.38. 80. Forestry Act 2012 (NSW) Pt 5A.

81. Forestry Act 2012 (NSW) Pt 5B. 82. Forestry Act 2012 (NSW) s 69B(1). An assessment may include an environmental impact statement (EIS) or other environmental studies completed under Environmental Planning and Assessment Act 1979 (NSW) (EPAA) Pt 5; Forestry Act 20102 (NSW) s 69B(3). 83. Forestry Act 2012 (NSW) s 69B(2). 84. Forestry Act 2012 (NSW) ss 69W–69Z. 85. See Forestry Act 2012 (NSW) s 69V. 86. And on planning agreements, see further 10.47. 87. Planning and Environment Act 1987 (Vic) s 174; see also Land Use Planning and Approvals Act 1993 (Tas) s 71. 88. A greenway is land set aside as a trail for use by members of the public and visitors for recreational walking, cycling, horse riding, skating or a similar purpose under the Recreational Greenways Act 2000 (SA). 89. Development Act 1993 (SA) s 57; see also Sames v District Council of Mount Barker (2004) 132 LGERA 187. 90. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 93F. 91. See generally Cox, ‘Statutory Planning for Conservation’ (1993) 10 EPLJ 205. 92. See 10.69. 93. For example, the Planning and Environment Act 1987 (Vic) s 46 provides that where land has been reserved under the Crown Land (Reserves) Act 1978 a planning scheme otherwise applying to that general area does not apply to the reserved land to the extent of any inconsistency between the two sets of controls until such a reservation has been revoked. 94. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 6. 95. Land Use Planning and Approvals Act 1993 (Tas) s 4; State Policies and Projects Act 1993 (Tas) s 4. 96. Planning Act 1992 (NT) s 4. 97. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) Pt 5A. 98. This is borne out by the decision in Bentley v Shire of Talbot [1990] ELR 005. 99. Planning and Development Act 2007 (ACT) s 50. 100. Section 7(1). 101. Sustainable Planning Act 2009 (Qld) s 14. 102. Planning and Development Act 2005 (WA) ss 5 and 6. ‘Public works’ are defined in s 4 to mean works governed by the Public Works Act 1902 (WA). 103. Planning and Development Act 2005 (WA) s 133. 104. On ‘objects clauses’, see 7.21 and following. 105. This Act replaces the Integrated Planning Act 1997 (Qld). The process and changes are discussed by England, ‘From Revolution to Evolution: Two Decades of Planning in Queensland’ (2010) 27 EPLJ 53. 106. Section 4. 107. Section 5. ‘Natural resources’ includes biological, energy, extractive, land and water resources that are important to economic development because of their contribution to employment generation and wealth creation: s 5(3). 108. Land Use Planning and Approvals Act 1993 (Tas) s 54.

109. Development Act 1993 (SA) ss 3, 22 and 23. 110. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 26. 111. On ‘want of power’, see Chapter 22.45. 112. See Perry v Hepburn Shire Council (2007) 154 LGERA 182; Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59. 113. See McGill v Bass Coast Shire Council [2007] VCAT 1028; Start v Pyrenees Shire Council [2006] VCAT 2599; Hub Action Group Inc v Minister for Planning [2008] NSWLEC 116. 114. See Telstra Corp v Hepburn Shire Council [2005] VCAT 1099. 115. The Victoria Planning Provisions (VPP) (Planning and Environment Act 1987 (Vic) Pt 1A) effectively set a template for the construction of local planning schemes, requiring the adoption of mandatory provisions and allowing for the insertion of relevant state-standard overlays (such as the native vegetation overlay) to support local planning policies. The purpose of the VPP is to further the objects of the Act (s 4) by providing a consistent and coordinated framework for planning schemes across Victoria. The VPP are given meaning by a State Planning Policy Framework (SPFF), which includes provisions, for example, relating to environmental and landscape values (cl 12), environmental risks (cl 13) and NRM (cl 14). Both the objects of the Act and planning schemes are mandatory considerations in considering an application for development consent: s 60(1). See also Bryant and Eccles, ‘The New Planning Schemes for Victoria’ (1998) 4 LGLJ 194. 116. Sustainable Planning Act 2009 (Qld) s 50 (standard provisions). 117. EPIs may be made by the Governor where the minister is of the opinion that the subject matter is of state or regional environmental planning significance: Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 37. The minister has wide discretion in the public notification of proposed EPIs and seeking public submissions: s 38. And on public consultation in relation to repealed but similar provisions of this legislation, see Leichhardt Municipal Council v Minister for Planning (1992) 77 LGRA 402; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31. 118. See, for example, Nearn, ‘Urban Bushland Protection through Planning Controls in New South Wales’ (1995) 12 EPLJ 318; Pearson, ‘Planning and Land Use Decision-making at State and Local Level: The Look-at-me-now Headland Ocean Outfall’ (1995) 12 EPLJ 221. 119. See 9.63 and following. 120. For example, in relation to approvals for ‘development’; see, for example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 76A; Planning and Development Act 2005 (WA) s 162; Land Use Planning and Approvals Act 1993 (Tas) s 13C. And see further 7.31 and following. 121. Sustainable Planning Act 2009 (Qld) ss 41 and 42. 122. Sustainable Planning Act 2009 (Qld) ss 17(1), 24, 51, 80, 102 and 109. A regional plan prevails over other planning instruments: s 26(3). And for commentary on planning policies, regional plans and planning schemes, see England, ‘IPA Planning Schemes: Is There a Difference?’ (2006) 23 EPLJ 81. 123. Sustainable Planning Act 2009 (Qld) s 326(1)(b). 124. See England, ‘Judicial Interpretation of Planning Schemes under the Integrated Planning Act 1997 (Qld): The More Things Change …’ (2005) 22 EPLJ 281. 125. See generally Hutchings, ‘Strategic Land Use Planning: Experiments in Legislation and Governance’ (2006) 23 EPLJ 426. 126. Section 22. 127. Section 22(8).

128. Section 22(10). 129. Section 13. See also Marine Farming Planning Act 1995 (Tas) s 21(g)(a) and Sorell Council v Tasmania (2004) 134 LGERA 59. 130. For example, Catchment Management Act 2003 (NSW) s 20; Natural Resources Management Act 2004 (SA) ss 79 and 122. 131. See, for example, Rowe v Lindner [2006] SASC 176; and see further 7.24 and following. 132. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 36; Sustainable Planning Act 2009 (Qld) ss 19 and 43; State Policies and Projects Act 1993 (Tas) s 13(1); Planning and Environment Act 1987 (Vic) s 7(4) (state standard provisions prevail over local provisions); Planning and Development Act 2005 (WA) ss 4(3) and 124(1) (provisions of region planning scheme prevail over provisions of local planning scheme). ‘Inconsistency’ may become a matter for judicial review: see, for example, Springer v Woollahra Municipal Council (2000) 108 LGERA 392. 133. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 38. 134. For example, Planning and Environment Act 1987 (Vic) Pts 3A, 3C and 3D. 135. A region may be any area declared by the minister to be a region, unless otherwise prescribed (Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 4(1), (6), (6A)), though commonly regions would cover more than one municipal area, including adjacent waters; for example, Sustainable Planning Act 2009 (Qld) s 22. 136. For example, Sustainable Planning Act 2009 (Qld) s 40, Sch 3 (minister may make a planning instrument about matters of state interest (a ‘state planning policy’), meaning: (a) an interest that, in the Minister’s opinion, affects an economic or environmental interest of the State or a part of the State, including sustainable development; or (b) an interest in ensuring there is an efficient, effective and accountable planning and development assessment system). 137. For example, NSW Coastal Policy 1997; Qld State Planning Policy 1/00: Planning and Management of Coastal Development Involving Acid Sulfate Soils. 138. For example, State Policy on Water Quality Management (Tas). 139. For example, SEPP 46 in New South Wales: Protection and Management of Native Vegetation (now repealed). 140. For example, SEPP 55 in New South Wales: Remediation of Land. 141. For example, SEPP 14 in New South Wales: Coastal Wetlands. The policy identifies over 1300 wetlands of high natural value. Land clearing, levee construction and drainage or filling in such areas may only be carried out with the consent of the local council and the agreement of the Director of Planning. Such development also requires an EIS to be lodged with the development application. 142. For example, SEPP 26 in New South Wales: Littoral Rainforests, aims to protect this distinct type of rainforest located in coastal areas. The policy requires that the likely effects of developments proposed in these rainforest areas are subject to formal EIA. The policy applies to the ‘core’ areas of littoral rainforest as well as a 100-metre wide ‘buffer’ zone surrounding those core areas. 143. For example, SEPP 44 in New South Wales: Koala Habitat Protection, applies to more than 100 local government areas within the known geographic range of koalas. Local councils cannot approve development proposals in an area affected by the policy, without first undertaking an investigation of core koala habitat: see also Qld State Planning Policy 1/97: Conservation of Koalas in the Koala Coast, and Supporting Planning Guidelines. 144. Planning and Environment Act 1987 (Vic) s 4A.

145. Planning and Environment Act 1987 (Vic) Pts 3A, 3C and 3D. 146. See, for example, Friends of South West Rocks Inc v Machro Pty Ltd (2004) 136 LGERA 198. 147. Introduction to the Victorian State Planning Policy Framework. 148. See . 149. See Fisher, ‘The South-East Queensland Regional Plan — A New Planning Approach for Queensland’ (2005) 22 EPLJ 89. Key elements for a regional plan include ‘key regional environmental, economic and cultural resources and the way those resources are to be preserved, maintained or developed’: Sustainable Planning Act 2009 (Qld) s 28. 150. See 12.9. 151. See, for example, Swan and Canning Rivers Management Act 2006 (WA); see also 9.63 and following. 152. See Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA; Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33; Lane Cove Council v Minister for Urban Affairs and Planning (2005) 140 LGERA 185; Brunton, Taberner and Mather, ‘The Development of Public Participation in Environmental Protection and Planning Law in Australia’ (1996) 13 EPLJ 260. In Queensland, under the Sustainable Planning Act 2009 (Qld), substantial compliance with the procedures for making or amending state planning instruments (s 57) will suffice so long as public rights to become aware of, and comment upon, such instruments are not adversely affected. 153. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 38. 154. For example, SEPP 46 in New South Wales was introduced without prior publicity because of the experience in South Australia prior to the passage of native vegetation clearance controls in that state. 155. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 34A. 156. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 54; Planning and Environment Act 1987 (Vic) ss 8, 8A and 9. 157. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 59; Development Act 1993 (SA) ss 24–27; Sustainable Planning Act 2009 (Qld) ss 125–130. In New South Wales, the intent is to ‘standardise’ EPIs, particularly local environmental plans: ss 33A and 33B; and see Standard Instrument (Local Environmental Plans) Order 2006, NSW Government Gazette, No 42, 31 March 2006, p 1879. In Queensland, ‘standard planning scheme provisions’ are designed to ‘advance the purpose of this Act by providing for (i) a consistent structure for planning schemes; and (ii) standard provisions for implementing integrated planning at the local level’: Sustainable Planning Act 2009 (Qld) s 50. 158. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 57 (although the minister may determine that community consultation is not required for minor or inconsequential amendments or where no significant adverse impact on the environment or adjoining land will be occasioned: ss 56(3) and 73A); Planning and Environment Act 1987 (Vic) Pt 3 Div 2. In Queensland, the procedure for making or amending a planning scheme or planning scheme policy is contained in the document called ‘Statutory guideline 01/12 Making and amending local planning instruments’, 16 January 2012; Sustainable Planning Regulation 2009 (Qld) reg 5. Substantial compliance with this guideline will suffice so long as public rights to become aware of, and make submissions about, such instruments are not adversely affected: Sustainable Planning Act 2009 (Qld) s 119; Development Act 1993 (SA) ss 25(7)(d), (8)(b)(ii), 9(b) (council amendments); 26(d)(ii), 26(5a)(b), (5b)(b), (11) (minister’s amendments); Land Use Planning and Approvals Act 1993 (Tas) s 38; Land Use Planning and Approvals Regulations 2014 (Tas) reg 4. Failure to comply with the prescribed advertising requirements does not render the amendment a

nullity: Grunseth v Resource Planning and Development Commission [2008] TASSC 35; Planning and Development Act 2005 (WA) s 84. 159. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 34A. 160. Homeworld Ballina Pty Ltd v Ballina Shire Council [2010] NSWCA 65. 161. See Knox and Francis, ‘A Review of the Effectiveness of Environmental Protection Zones in Four Coastal Local Government Areas’ (1997) 2 LGLJ 134. 162. See Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274. 163. In some jurisdictions, there are statutory provisions imposing a time after which an existing use is presumed to have been discontinued if the use actually ceases, which may be 12 months, or two years; for example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 107(3) and 109(3) (presumption that a use is abandoned if it actually ceases to be used for a continuous period of 12 months); Planning and Environment Act 1987 (Vic) s 6(4). See also Hudak v Waverley Municipal Council (1990) 70 LGRA 130 (subjective intention of owner to resume use is not enough of itself to rebut the presumption of abandonment). 164. See, for example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 109; Sustainable Planning Act 2009 (Qld) ss 681–685 and 687; Land Use Planning and Approvals Act 1993 (Tas) s 20(3)–(6); and see Ashfield Municipal Council v Armstrong [2003] NSWCA 353 (development of land for the purposes of a residential flat building and car park that utilised the subterranean space beneath that land constituted an intensification of the existing lawful use); Kennedy, ‘The Future of Existing Use Rights in Victoria’ (1995) 12 EPLJ 400. 165. See House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44 at [36] per Mason P (it is the development consent that sets the boundaries of the authority to use the land, not the actual or more limited use of the land by a predecessor in title). 166. Vanmeld Pty Ltd v Fairfield City Council (1992) 75 LGRA 374. 167. Warringah Shire Council v Sedevic (1987) 63 LGRA 361. 168. This will not necessarily be the position in other states: see Farrier, ‘The Planning System as a Vehicle for the Regulation of Broadacre Agricultural Land Clearing’ (1991) 18 MULR 24. 169. See further 13.9 and following. 170. For example, in Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 366, an EIA was held to be required of a mining operation under the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 110, because it fell within the definition of ‘activity’ in that section, despite the fact that development approval was not required because the proposed operation fell within existing use provisions; see also Vanmeld Pty Ltd v Fairfield City Council (1992) 75 LGRA 374 (licence refused for occupation of caravan site because land prone to flooding despite existing use protection). 171. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 26; Planning and Environment Act 1987 (Vic) s 6. 172. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 57. 173. Section 59. 174. Planning and Environment Act 1987 (Vic) s 12(2)(b). 175. See further 11.58. 176. Sustainable Planning Act 2009 (Qld) s 38. 177. Sustainable Planning Act 2009 (Qld) s 88. 178. Section 89(2). 179. Sustainable Planning Act 2009 (Qld) s 105.

180. Development Act 1993 (SA) s 3. 181. Section 23. On ‘significant trees’, see further 13.34. 182. And nothing in the Act or the Planning Strategy expressly requires the minister to give consideration to whole of catchment flood mitigation in considering whether to approve a proposed development plan: Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning [2010] SASC 93. 183. Planning and Development Act 2005 (WA) s 25. 184. Schedule 1 cll 11 and 11A. 185. Planning and Development Act 2005 (WA) s 27(b). 186. Planning and Development Act 2005 (WA) s 32. 187. Planning and Development Act 2005 (WA) ss 39 and 82. 188. Environmental Protection Act 1986 (WA) s 48D. 189. Environmental Protection Act 1986 (WA) ss 48F and 48J. 190. Land Use Planning and Approvals Act 1993 s 20. 191. Schedule 1. 192. Planning Act 1992 (NT) ss 7 and 8. 193. Planning and Development Act 2007 (ACT) s 52. 194. Planning and Development Act 2007 (ACT) ss 99–101. The minister may also require SEA of a draft plan variation under s 62(2). 195. See Martin and Gunningham, ‘Leading Reform of Natural Resource Management Law: Core Principles’ (2011) 28 EPLJ 137. The difficulties in achieving consensus outcomes are well demonstrated by the controversy over implementing proposed reforms to water access in the Murray–Darling Basin: see Martin and Gunningham, above, at 154. See also Bonyhady, ‘Putting the Environment First?’ (2012) 29 EPLJ 316. Water sharing in the states has also generated a number of actions for judicial review of decision-making, most of it unsuccessful: see further 18.26. 196. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 176 and 177. 197. Water NSW Act 2014 (NSW) s 6 198. Section 7, Pt 4. 199. Section 34. 200. See . 201. The Local Land Services website seems to adopt the Natural Resources Commission ‘Standard for Quality Natural Resource Management’ (2005), the intent of which is to improve the consistency of practice, based on an adaptive management approach; and designed to apply to NRM at all scales including at the state, regional or catchment, local and property levels; see . 202. See . 203. Local Land Services Act 2013 (NSW) s 14; Pt 4 Div 1. 204. Section 29; Pt 4 Div 2. 205. Section 29(1)(e). 206. Native Vegetation Act 2003 (NSW) s 27; and on property vegetation plans (PVPs), see 12.21. 207. Section 28(d).

208. See . 209. For further detailed commentary, see Owens, ‘Strategic Regional Land Use Plans: Presenting the Future for Coal Seam Gas Projects in New South Wales?’ (2012) 29 EPLJ 113; Poisel, ‘Coal Seam Gas Exploration and Production in New South Wales: The Case for Better Strategic Planning and More Stringent Regulation’ (2012) 29 EPLJ 129. 210. See . 211. See . 212. State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 Pt 4AA. 213. Sections 17B and 17H, Pt 4AA. 214. See generally Swayne, ‘Regulating Coal Seam Gas in Queensland: Lessons in an Adaptive Environmental Management Approach?’ (2012) 29 EPLJ 163. 215. Regional Planning Interests Act 2014 (Qld) ss 7, 10, 19, 27, 28 and 59; Pt 4 (mitigation measures). Criteria for assessing and managing impacts are set out in the Regional Planning Interests Regulations 2014 (Qld) Sch 2. 216. Regional Planning Interests Act 2014 (Qld) ss 11, 19, 27 and 28; Pt 4 (mitigation measures): Regional Planning Interests Regulations 2014 (Qld) Pt 3, Sch 2. 217. Natural Resources Management Act 2004 (SA) s 74. 218. Natural Resources Management Act 2004 (SA) ss 74–76. Regional and water allocation plans must be preceded by a ‘concept statement’: s 78. 219. Sections 30(2) and 54(2). 220. Section 9: ‘a person must act reasonably in relation to the management of natural resources within the state’. 221. Section 122 seems to suggest that orders to prepare action plans under the NRM Act are subservient to actions required to be undertaken under other legislation. 222. Natural Resources Management Act 2004 (SA) s 82. 223. Natural Resources Management Act 2004 (SA) s 90. 224. Natural Resources Management Act 2004 (SA) s 76. 225. Natural Resources Management Act 2004 (SA) s 147. 226. See . 227. Established under the Catchment and Land Protection Act 1994 (Vic). 228. Section 9. 229. Section 12. 230. Catchment and Land Protection Act 1994 (Vic) ss 25 and 31. Strategies may be incorporated in planning schemes or environment protection policies (EPPs); plans will need to be incorporated in a planning scheme to become effective. 231. Sections 26 and 32. 232. Water Act 1989 (Vic) s 32A(11). 233. See Rozen v Macedon Ranges Shire Council [2010] VSC 583. 234. See Nelson, ‘Legislation for ICM: Advancing Water Resources Sustainability?’ (2005) 22 EPLJ 96. 235. See Rothwell and Kaye, ‘A Legal Framework for Integrated Oceans and Coastal Management in Australia’ (2001) 18 EPLJ 278.

236. See Nevill, ‘Managing the Cumulative Effects of Incremental Development in Freshwater Resources’ (2004) 21 EPLJ 85. 237. IGAE Sch 2. 238. Antarctic Treaty (Environment Protection) (Environmental Impact Assessment) Regulations 1993 cl 8. 239. Water Management Act 2000 (NSW) s 9. 240. See Water Management Act 2000 (NSW) s 5. Cumulative impacts of uses and activities that have adverse impacts are also core provisions for management of water use, drainage, and other activities: see, for example, ss 23, 26 and 29. This does not mean, however, that any particular performance standards are specified by the legislation. 241. Natural Resources Management Act 2004 (SA) s 9(2)(g). 242. For example, Tweed Local Environmental Plan 2000 (NSW) cl 5.5; (development within the coastal zone to ensure that decisions in relation to new development consider the broader and cumulative impacts on the catchment). And see Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274; Seljanovski v Sutherland Shire Council [2003] NSWLEC 234 (application for a jetty refused because an approval was likely to lead to subsequent applications from up to 25 other properties that, if approved, would result in adverse environmental impacts). 243. Blayney Local Environmental Plan 2012 cl 6.4. 244. ‘National Wind Farm Development Guidelines — Draft’, Environment Protection and Heritage Council 2010. See also King v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Ltd v Minister for Planning [2010] NSWLEC 1102 (possible cumulative impacts of noise, visual impact, shadow flicker and possible night lighting of the turbines plus the intrusion of overhead transmission lines). 245. See, for example, Friends of Hinchinbrook Society Inc v Minister for the Environment (No 3) (1997) 95 LGERA 229. 246. See, for example, Water Administration Ministerial Corp v Auburn Council [2000] NSWLEC 76 (the Water Administration Act 1986 s 11 obliged the corporation to consider the cumulative impact of its decisions on water and water systems and related natural resources).

[page 361]

Chapter 10 Development Control Introduction 10.1 It has already been emphasised that government and local government licensing of projects and activities that are likely to have environmental impacts is the cornerstone of environmental management and therefore of environmental law. The strategic planning instruments discussed in Chapter 9 provide the context and framework within which decisions about permitting and refusing proposals to develop land and exploit natural resources can be made without decision-making descending into unprincipled chaos. This chapter is about assessing the environmental impacts of development in considering applications for development consent under the environmental planning legislation. The objectives set out in environmental planning instruments (EPIs) set the ground rules for development control. Similarly, the objectives of environmental management plans constrain the exploitation and use of natural resources. This is discussed further in Chapter 18.

Development control in environmental planning legislation 10.2 ‘Development’ is commonly defined in planning legislation1 as encompassing building and other works on land,2 a change of use of land, demolition and [page 362] subdivision;3 and may include any other type of activity described by an environmental planning instrument for the purpose of environment protection,4 clearing of native vegetation,5 works that could affect heritage

items,6 damage to significant trees,7 and displays of signs and advertising material.8 It is important to appreciate, therefore, that development is not just about construction; it may include material changes to the use9 of land and activities10 that do not involve any construction or operations whatsoever. It is generally an offence to carry out development without consent where consent is required.11 10.3 Consideration of applications for development must take place within the framework set forward in EPIs: see 9.36 and following. In general, it may be said that state EPIs provide guidance and flexibility regarding the achievement of statewide planning objectives and do not create inflexible regimes of control. For example, where an LEP required that a development consent be consistent with the objectives of the plan, this did not require a positive finding of compatibility; rather, it meant not incompatible or inconsistent. Planning instruments should not be interpreted as if they were statutes; they should be interpreted with the intent of providing a practical outcome consistent with a reasonable interpretation using a commonsense approach.12 Consequently, the application of state policies to development [page 363] applications must be judged in the context of each particular application.13 In Queensland, for example, it has been held that where a potential conflict exists between a strategic planning instrument and a development proposal, a court must interpret the planning instrument purposively to determine the extent of any conflict. A statutory direction that an approval must not compromise a desired environmental outcome or conflict with a planning scheme unless justified, gives primacy to environmental outcomes, including outcomes in the local area as well as statewide or higher level outcomes.14 In New South Wales, state environmental planning policies (SEPPs) that seek to protect particular environmental features, such as SEPP 14 (coastal wetlands), SEPP 19 (native bushland within areas designated public open space),15 SEPP 26 (littoral rainforest), SEPP 44 (koalas), and SEPP 71 (coastal protection), all impose additional assessment or consent requirements on activities that might impact on those areas of environmental concern. Applications for development may therefore be refused because of the likelihood of significant impacts on such natural resources that cannot be overcome in the proposal put forward for consideration.16 10.4 Development is also constrained by the zoning provisions of local plans, which direct proposals to the most appropriate locations within a municipality where the desired activity may be carried on. The mere fact that

an application is zoned correctly does not, of course, mean that there is an entitlement as of right to carry out the development; the decision-maker must still determine whether it is appropriate.17 It will be no excuse to commencing development without consent, where consent should have been obtained, that the development is in any event within the permitted zoning. As Hasluck J said in Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81, it would be misguided to allow unauthorised developments to proceed with scarcely any censure simply because they were thought to be compatible with the relevant zoning, as this would reduce requirements for development consent to the level of a mere formality. Significant penalties may be imposed on persons who undertake development work without gaining necessary consents.18 [page 364]

General scheme of development control 10.5 Under the relevant planning scheme, development may be classified variously as ‘permitted’, ‘development that does not need consent’ or ‘exempt’,19 ‘complying development’,20 ‘prohibited’21 or ‘development that needs consent’.22 In Queensland, all development is exempt unless falling into a category that requires assessment.23 A development permit is only required for assessable development.24 Development may also be categorised as ‘state significant’, in which case it will generally be referred to the appropriate minister for evaluation by state, rather than local, authorities.25 10.6 The general scheme of development control is that anyone wishing to undertake development that requires consent must apply to the relevant planning authority, usually the local authority or minister for planning, or permission to undertake that development. Some activities specified under other legislation, such as clearance of native vegetation,26 may also require development consent under the environmental planning legislation. Before the development can proceed, applications may then be required to be referred to other government agencies, either for concurrence27 with the development proposal or for advice28 in relation to it. Many proposals for development [page 365] will also require the issue of licences for other aspects of the proposal; for example, in addition to development consent, a development proposal might need separate licences to clear native vegetation, affect threatened species,

emit pollution, or impact on heritage areas. These issues are dealt with in subsequent chapters. Effectively, other licensing agencies may therefore be able to veto a proposal by refusing to issue a licence for aspects of the proposal controlled by them.29 10.7 Crown development (development proposals put forward by government agencies) are subject generally to the same provisions for assessment of development, but not necessarily in the same way; for example, in New South Wales, an application for development consent may not be refused, or conditions placed upon it, except with ministerial or other relevant agency consent.30 In South Australia, a development proposal by a state agency will be referred to the Development Assessment Commission and a decision made by the minister.31 Major projects of state or regional significance may also be subjected to different processes for evaluating applications, usually by being referred to the minister for integrated assessment: see 10.52 and following.32 10.8 Just because a development does not need planning consent does not mean, however, that environmental assessment (EA) will not be relevant. For example, in New South Wales, although development consent may not be required under the Environmental Planning and Assessment Act 1979 (EPAA) Pt 4, EA may still have to be carried out under Pt 5.33 Exempt development may also be restricted to development that has perceived minimal environmental impact,34 and even then may exclude certain types of environmental features, such as wilderness or the critical habitat of endangered species.35 Sometimes an environmental planning instrument may also provide that a development that would otherwise require consent can be addressed by specified predetermined development standards36 or a code37 rather than by applying the usual procedures for determining a development application. [page 366] 10.9 If the proposal is one that the permitting authority does have power to refuse, the authority will generally be required to advertise the application38 and, after due consideration of any public submissions39 prompted by the advertisement, make a decision whether to permit the development (with conditions),40 or refuse it.41 These requirements may, however, be restricted to the more significant categories of development; for example, in New South Wales, to designated development, state significant development and other advertised development.42 In South Australia, developments are divided into categories 1, 2, 2A and 3.43 General public notification of proposals only

applies to category 3 developments; limited notice of category 2 and 2A proposals is given to owners and occupiers of adjoining or adjacent land, and other prescribed persons, but no notification at all is given of category 1 applications.44 Apart from any such rights granted by legislation, the general position is that there are no rights to public notification of a development application unless an environmental [page 367] planning instrument extends such rights,45 although many local government and sometimes state government authorities do in fact make a practice of giving informal notice to adjoining landholders or relevant stakeholders, a practice that can in fact crystallise into a legal right to receive notice and make representations under rules of law relating to natural justice.46 Failure to comply with public notice procedures, or failure to give adequate details about the proposal sufficient to alert members of the public to the substantive provisions of the proposal, may result in the process being declared legally invalid.47 Similarly, failure to give adequate consideration to objections, or in any other way subverting the statutory intent, may lead to the ultimate determination being set aside.48

Assessing the environmental impacts of development 10.10 In making a decision about an application for development consent, environmental factors are of prime concern. Applications for development consent must contain prescribed information that includes assessment of projected environmental impacts.49 The determining authority (and this includes a court or tribunal hearing a merits appeal) is usually directed by the legislation to take into account environmental factors when considering the application,50 so the starting point for evaluating environmental impacts must be the proponent’s own assessment. Environmental considerations will, therefore, influence decision-making on the merits of the application at both the initial approval and later appeal stages. 10.11 Proposals that are likely to involve significant environmental effects may be required to undergo a formal process of environmental impact assessment (EIA). This is discussed in Chapter 11. For applications that are

not required to produce a formal environmental impact statement (EIS) following EIA, the decision-maker will [page 368] still have to demonstrate that appropriate consideration has been given to the impact the development will have on the environment.51

New South Wales 10.12 In New South Wales, where an environmental planning instrument requires that consent be obtained for development, the consent authority is directed by the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 79C to have regard to, among other things, ‘the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality’. This rather bald provision masks a significant responsibility that rests with a consent authority in determining applications for development. 10.13 In order to comply with the requirements of s 79C, the consent authority52 will need to understand the proposal.53 This means that the applicant will have to furnish the consent authority with enough information to enable it to evaluate the proposal. The Environmental Planning and Assessment Regulation 2000 (NSW) (EPAR) Sch 1 lists the requirements for information that must be contained in an application for development consent. For the more significant development, that is designated or state significant development,54 an environmental impact statement (EIS) will furnish the necessary information. For development that does not fall into either of these two categories, then a statement of environmental effects (SEE) must accompany the application, which must include information about: (a) the environmental impacts of the development; (b) how the environmental impacts of the development have been identified; and (c) what steps are to be taken to protect the environment or to lessen the expected harm to the environment. This, at least, should provide a starting point for evaluation of the proposal. 10.14 Failure to include a SEE with an application does not, however, automatically invalidate the application or any subsequent consent.55 Unlike the requirements for

[page 369] EISs and species impact statements (SISs),56 where failure to lodge a statement with the application will lead to automatic invalidity because the provision of such a statement is a precondition to determining the application, the requirement that a SEE should accompany an application has been interpreted as not leading to automatic invalidity, because in the event that a SEE is not presented to the consent authority it is nevertheless empowered to ask for further information or to simply reject the application. In Cranky Rock Road Action Group Inc v Cowra Shire Council (2006) 150 LGERA 81, the New South Wales Court of Appeal said that if the consent authority considered that it had enough information to properly carry out its statutory obligations and determine the application without the provision of a SEE, then there was no logical reason why consent should not be granted.57 It would be curious if the consent authority decided not to reject the application, on the basis that it had enough information to determine it, but then the application was declared nevertheless to be automatically invalid. 10.15 In order to comply with the requirements of s 79C, a consent authority will need to consider, for example, the effect of the proposal on water resources, biodiversity, threatened species, soil conservation and waste disposal, and its potential to create pollution. Section 5A of the Act58 also stipulates that to comply with s 79C in respect of consideration of impacts on threatened species (in determining whether there may be a significant effect59 on threatened species, populations or ecological communities, or their habitats), various factors must be taken into account; for example, whether critical habitat will be affected, or the life cycle of a species disrupted. Impacts on the built, and the social and economic, environment in the locality will also be relevant: the visual impact of the proposal, effect on neighbours, traffic considerations and so on — all those things that go to make up the ‘amenity’60 or quality of life in a neighbourhood.61 The New South Wales Court of Appeal has also stressed that in order to properly consider environmental impacts under s 79C, impacts that are a likely consequence of the development need to be considered even though these may result from an activity that is not in itself the subject of the development application. Section 79C should not be read down so as to exclude [page 370] environmental impacts that have been or are likely to be considered in relation to a separate development application.62 10.16 An application may then be refused or conditions63 imposed on a

grant of consent so as to take account of these matters.64 The requirements of s 79C are mandatory, and failure to consider any of the mandated factors, in a reasonable manner, may result in any consequent permission being declared invalid.65 For example, in King v Great Lakes Shire Council [1986] 58 LGRA 366, a development consent was held to be void because the council had failed to adequately address the consequences of sewage disposal in a highly sensitive environmental area, and the Land and Environment Court held that its obligations under the EPAA had, therefore, not been discharged.66 Neither is it permissible for consent to be given which defers important and significant matters of environmental consideration for later determination; this may result in the conditions being so uncertain, or the development ultimately being so different from that approved, that the consent as a whole will be deemed invalid.67 Although s 79C requires that the considerations listed must be taken into account in determining an application, the relevance of each of those factors to the application, and therefore the appropriate weight to be given to each of them, is a question of fact for the decision-maker to determine.68 [page 371] 10.17 Other provisions of the EPAA also require that consent authorities, in exercising their functions, must have regard to the register of critical habitat kept under the Threatened Species Conservation Act 1995 (NSW),69 and a consent authority that lies within the area covered by the New South Wales Coastal Policy 1997 must also take into account the provisions of that policy.70 Before granting approval to conduct some particular activity associated with development, such as sewerage, water supply or stormwater drainage work on land,71 councils are also directed by the Local Government Act 1993 (NSW) to take into account the principles of ecologically sustainable development, protection of the environment, and any items of cultural and heritage significance that might be affected.72 10.18 Where an environmental planning instrument does not require development consent, because, for example, the project is permissible without consent, or it is an activity73 to be carried out or approved by a public authority,74 then the provisions of s 79C will not apply. Instead, the ‘determining authority’75 must comply with the provisions of s 111 to ‘examine and take into account to the fullest extent possible76 all matters affecting or likely to affect the environment by reason of that activity’, including effects on protected and threatened wildlife and wilderness areas.

An activity that is ‘likely to significantly affect the environment’ is then required to undergo formal environmental impact assessment (EIA).77 This is discussed more fully in Chapter 11.

Development requiring a species impact statement 10.19 A development application in respect of development on land that is, or is a part of, critical habitat,78 or is likely to significantly affect threatened species, [page 372] populations or ecological communities79 or their habitats, must be accompanied by a SIS.80 In deciding whether there is likely to be a significant effect, the criteria set out in s 5A must be considered (the ‘seven-part test’). In Davis v Gosford City Council [2014] NSWCA 343 at [86]–[91], the Court of Appeal said that s 5A only applies in deciding ‘whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats’. The Act uses this statutory formulation for three purposes: first, to decide whether a SIS needs to be prepared; second, as a head of consideration; and third, to decide whether there needs to be consultation with or the concurrence of a public authority. Section 5A provides matters that must be taken into account in deciding whether the statutory formulation is satisfied for these purposes. An effect on threatened species, populations or ecological communities, or their habitats, that is not likely to be a significant effect, is not an irrelevant matter for evaluation under s 79C(1). 10.20 An application for development consent may not be granted without the concurrence of the Director-General of the Department of Environment, Climate Change and Water or, if a minister is the consent authority, unless the minister has consulted with the minister administering the Threatened Species Conservation Act 1995 (NSW); although the minister administering the Threatened Species Conservation Act may elect to act in place of the Director-General or review and amend any recommendations that the Director-General proposes to make, or any advice that the Director-General proposes to offer.81 The decision as to whether or not a SIS is required is of such importance to the statutory scheme that it has been interpreted as an essential pre-condition to exercising the power to determine a development consent (a jurisdictional fact).82

Consent to clear native vegetation 10.21 Vegetation may only be cleared in accordance with the Native Vegetation Act 2003 (NSW) (NVA), which requires development consent to clear83 native [page 373] vegetation.84 The procedure for obtaining development consent is that prescribed in the EPAA Pt 4,85 but the minister administering the Native Vegetation Act becomes the consent authority.86 These provisions do not apply to urban areas and other land specified in the Act;87 to clearing carried out as part of designated development that has been approved under the EPAA;88 to state significant development or state significant infrastructure;89 to clearing carried out in accordance with a property vegetation plan;90 and to clearing that is permitted without development consent or that occurs as part of some other permitted activity.91 Restrictions on clearance of native vegetation are considered in more detail in Chapter 13.

Integrated development 10.22 Integrated development is development that requires development consent under the EPAA and one or more specified approvals under other regulatory regimes.92 Where the consent authority is considering an application for integrated development, the consent authority must obtain from each relevant approval body the general terms of any approval it proposes to grant in relation to the development.93 Where an approval body decides that it will not grant approval, the consent authority must refuse consent.94 Where the consent authority and relevant approval bodies propose to approve the development, the development consent must be consistent with the general terms of other proposed approvals.95 The consent authority may, however, impose any condition that the approval body may lawfully impose.96 Likewise, any conditions imposed on the approval by the approval body must be consistent with the development consent.97 [page 374]

Conditions of consent 10.23 The power to impose conditions is generally referable to the matters the consent authority must consider under s 79C of the Act.98 A condition may be expressed in terms of one or more express outcomes or objectives that

the development, or an aspect of it, must achieve and may set criteria against which to assess achievement.99 Section 80A(6) of the Act also allows a consent authority to impose a condition for the provision of security for completing of any public work (such as environmental controls) required in connection with the consent. Examples of matters for which councils have taken environmental security bonds include: silt and sediment control, to ensure that there is no transmission of soil or other material off-site and onto a public road or into a drainage system;100 security against damage to adjoining council property;101 an infrastructure works bond, for completing any public work, including stormwater, drainage and environmental controls, required in connection with the consent;102 and a bond taken as security for public place and environmental damage.103 The validity of conditions may be challenged by judicial review (see Chapter 22), and the imposition of conditions may be disputed in merits appeals: see 10.69.

Deferred commencement consent 10.24 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 condition (a ‘deferred commencement consent’).104 The ability to grant deferred development consent does not overcome the necessity, at the time the consent is granted, to properly consider the matters referred to in s 79C of the Act and to finally determine the development application.105

Developer contributions 10.25 A consent authority may impose a condition on a development consent requiring the applicant for the development to dedicate land or make a monetary contribution where the development will or is likely to require the provision of, or increase the demand for, public amenities and public services provided by a council [page 375] within the area (a ‘s 94 contribution’).106 Such a condition may only be imposed if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the minister).107 The condition may require the developer to:

(a) pay a monetary contribution or dedicate land free of cost, or both;108 or (b) pay a monetary contribution towards the recoupment of the cost to the consent authority for any public amenities or public services it has provided within the area, at any time, in preparation for or to facilitate development,109 provided the development subject to the condition will benefit from the provision of those public amenities or public services.110 The consent authority may accept the dedication of land in part or full satisfaction of this condition.111 With respect to either type of condition, the developer may provide a material public benefit in lieu of dedicating land or making a monetary contribution.112 10.26 In Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313, the Court of Appeal accepted that a requirement to pay a contribution to enable the acquisition of a conservation corridor was validly imposed under these provisions.113 Other purposes for which s 94 contributions may be levied include tree planting;114 bushland and environmental works;115 and park acquisition and embellishment.116 As an alternative, but not in addition, to imposing a contribution condition as described above, a consent authority may impose a condition to the development consent requiring the applicant to pay a levy of the percentage, authorised by a contributions plan, of the proposed cost of carrying out the development (a ‘fixed [page 376] development consent levy’).117 A fixed development consent levy contribution must be applied towards the provision, extension or augmentation of public amenities or public services (or towards recouping the cost of their provision, extension or augmentation) but the application of the money is subject to any relevant provisions of the contributions plan.118 The minister may direct a consent authority in regard to the public amenities and public services for which a contribution may or may not be imposed, the things which may or may not be regarded as material public benefit and to the method for calculating, or the maximum amount of, monetary contributions or levy contributions.119

Modification of consent 10.27 On application by the developer or any person entitled to act on a consent, a consent authority may modify its development consent.120

Modifications of a minor nature, such as a mis-description or miscalculation, may readily be made.121 However, if the proposed modification is more than minor, the consent authority must consider whether it is of minimal environmental impact. If the consent authority is satisfied that it is, and that the development as modified is substantially the same development as the development for which consent was originally granted, it may modify the consent.122 If the consent authority is not satisfied that the proposed modification is of minimal environmental impact it may only modify the consent if: (a) it is satisfied that the development as modified is substantially the same development as the development for which consent was originally granted;123 (b) it gives notice and considers submissions if it is required to do so by a development control plan or the regulations;124 (c) it has regard to the relevant matters of the EPAA s 79C;125 (d) it consults with the relevant minister, public authority or approval body if the development is subject to a condition imposed as a requirement of concurrence, or is integrated development;126 and [page 377] (e) the concurrence or consultation requirements for development that is on critical habitat or that is likely to significantly affect a threatened species, population or ecological community or its habitat, are complied with as if the proposed modification were an application for development consent; and where a biobanking statement has been issued, a new biobanking statement has been issued or the consent authority is satisfied that the modification will have no impact on biodiversity values.127 An application will be refused where it is a disguised appeal by the developer seeking to avoid the burdens of the consent after having accepted its benefit.128 A consent authority may also, on application, modify a development consent granted by the Land and Environment Court on appeal.129

Victoria 10.28 In Victoria, under the Planning and Environment Act 1987, local planning authorities must consider ‘any significant effects which the

responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development’,130 and also significant economic and social effects, including the number of objectors to the proposal131; and may, if circumstances require, also consider environment protection policies (EPPs) as well as any strategic plans, policy statements, codes and guidelines, though there is no particular guidance about how to do this. Nevertheless, environmental factors clearly figure prominently in decision-making, as testified by the subject matter of appeals from planning decisions to the Victorian Civil and Administrative Tribunal (VCAT).132 Where the minister administering the Planning and Environment Act 1987 (Vic) advises that an environment effects statement under the Environment Effects Act 1978 (Vic) is required for the proposed development or use, no decision can be made and no work133 can proceed until the minister makes his or her assessment of the environmental effects of the proposal.134 [page 378]

Notification of permit applications 10.29 The responsible authority135 must give notice of an application for a planning permit (unless it requires the applicant to give notice)136 to owners and occupiers of land adjoining the subject land, unless the responsible authority is satisfied that the grant of a permit would not cause material detriment to any person.137 If required by the responsible authority, notice must also be given to any other person who may suffer material detriment as a consequence of the grant of the permit.138 The responsible authority may give any further notice that it considers appropriate regarding an application that is likely to be of interest or concern to the community.139 Notice is not required where a planning scheme has exempted a specific class of application from any or all of the notification requirements;140 or the responsible authority refuses the application.141 10.30 Where an application is made for both a permit and for the amendment of a planning scheme (a ‘combined application’) it is the planning authority142 that must give the requisite statutory notice of both the proposed amendment and the permit application.143 In this case, the range of persons who must be notified is broader than for an application for a permit only, and includes the minister administering the Planning and Environment Act 1987 (Vic) and other prescribed entities.144 The notices must include information concerning the making of submissions by members of the public.145

Any person who may be affected by the grant of a development permit may object to the grant by giving the responsible authority a written statement containing reasons for the person’s objection and stating how he or she would be affected by the grant.146

Minister’s call-in power 10.31 Before a responsible authority makes its decision on an application for a permit, the minister administering the Planning and Environment Act 1987 (Vic) (the Act) may direct the responsible authority to refer the application to him or [page 379] her if it appears to the minister that the application raises a major issue of policy and that the determination of the application may have a substantial effect on the achievement or development of planning objectives, the use or development to which the application relates is also required to be considered by the minister under another Act, and that consideration would be facilitated by the referral of the application to the minister.147 Objections and submissions received in relation to the application must be referred to a panel, which must hold a hearing at which any person who made an objection or submission, or any other person affected, must be heard.148 After considering any report of the panel, the planning scheme and any prescribed statutory matters,149 the minister may determine the application.150 Decisions in regard to a permit called in by the minister are not subject to review by VCAT.151

Queensland 10.32 In Queensland,152 all development is exempt development153 unless it is assessable,154 self-assessable,155 or prohibited development,156 or development requiring compliance assessment.157 A development permit is only necessary for [page 380] assessable development.158 A compliance permit is required for development requiring compliance assessment.159

Integrated Development Assessment System

10.33 The Integrated Development Assessment System (IDAS)160 integrates decision-making for development approvals under the Sustainable Planning Act 2009 (Qld) with decision-making for activities under other laws. For example, a development that is declared to be a significant project under the State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) is subject to some of the stages of IDAS,161 as is a development involving clearing of native vegetation under the Vegetation Management Act 1999 (Qld);162 and a material change of use of premises for an environmentally relevant activity (an ERA),163 other than an ERA specified in the Act.164 IDAS development applications specified in the regulations must be referred to other agencies for advice or concurrence.165 The IDAS has several stages:166 (a) the application stage; (b) the information and referral stage; (c) the notification stage; (d) the decision stage; and (e) the compliance stage. However, not all of these stages, nor all the parts of a stage, will apply to every development application.167 [page 381]

Assessable development 10.34 A regulation may require impact or code assessment, or both impact and code assessment, for assessable development.168 Code assessment means the assessment of development by the assessment manager169 against the relevant state regulatory provisions, plans, schemes and other planning instruments; the common material;170 relevant development approvals and lawful uses of the adjacent premises; any referral agency responses; and the purposes of any instrument containing an applicable code.171 ‘Impact assessment’ means the assessment of the environmental effects of proposed development, and the ways of dealing with those effects.172 Since entities exercising functions under the Act are instructed to advance, or at least have regard to, the purposes of the Act, which includes taking account of environmental effects, avoiding adverse environmental effects of development, and ensuring sustainable or prudent use of natural resources,173 then the relevant decision-maker will need to gather information about the

environmental effects of the proposal. Applications for development approval are to be made to the prescribed assessment manager.174 The assessment manager can ask the applicant for further information, but strangely the applicant can actually refuse to supply the information and instead request that the assessment proceed without it.175 [page 382] There are separate procedures for obtaining information where referral coordination is required.176

Notification stage 10.35 The notification stage177 applies to any part of a development application that requires impact assessment, even if other parts of the application only require code assessment or a concurrence agency advises the assessment manager that it requires the application to be refused.178 The notification stage gives a person an opportunity to make submissions179 that must be taken into account before an application is decided, and the opportunity to secure a right of appeal to the Planning and Environment Court about the assessment manager’s decision.180 The assessment manager may proceed to assess the application even if all the stipulated requirements have not been complied with, so long as the assessment manager is satisfied that public awareness of the existence and nature of the application or opportunities for the public to make submissions have not been adversely affected or restricted.181

Assessment of the application 10.36 The assessment process must have regard to a number of factors, including applicable EPIs, relevant codes and all the material received by way of request and public submissions.182 The subsequent decision of the assessment manager must be based on the assessments that have been carried out, apply concurrence agency requirements, and must be consistent with state planning regulatory provisions,183 although the duty with respect to advancing the purposes of the Act could be interpreted as an overriding obligation.184 An application may be called in by the minister for the minister to assess and decide, if the assessment manager has not decided the application and the development involves a state interest.185 The assessment manager’s decision may conflict with a relevant planning instrument, against which code or impact assessment must be

[page 383] carried out, only if the conflict is necessary to ensure the decision complies with a state planning regulatory provision, or there are sufficient grounds to justify the decision, or the conflict arises between two instruments of the same type, or two or more aspects of any one instrument, and the conflict best achieves the purposes of the instruments.186 A condition may be subsequently changed or cancelled by the entity that has jurisdiction for the condition, but only on grounds specified in other legislation, if the entity is satisfied that change is necessary.187 Otherwise, a person may apply to the responsible entity188 for a permissible change189 to a development approval.190 A permissible change is a change to the approval that would not result in a substantially different development, or would not require referral to additional concurrence agencies, or be likely to cause a person to make a submission objecting to the proposed change.191 Non-compliance with the procedural requirements of the Act may be dealt with in the way the court considers appropriate.192

South Australia 10.37 In South Australia, development must be categorised under development plans or a regulation as either a category 1 or category 2 development; any development not so assigned is deemed a category 3 development.193 The categorisation of development determines whether or not public notice is required.194 Categorisation also determines rights to make representations and rights to appeal against decisions made in regard to development authorisations.195 [page 384] The matters against which a development must be assessed do not specifically include environmental factors,196 although there are specific provisions that govern tree-damaging activities to significant trees.197 Consideration of environmental factors will, therefore, largely be determined by assessment against the relevant development plan. Prescribed activities of environmental significance are, however, required to be licensed under the Environment Protection Act 1993 (SA).198 These approximate to designated developments in other states,199 and, as such, may be required to undergo formal EIA.200 A development proposal cannot be categorised as category 1201 if that development involves, or is for the purposes of, a prescribed activity of

environmental significance.202 An advertisement or advertising hoarding that ‘disfigures the natural beauty of a locality’ may be required to be removed notwithstanding that development authorisation had previously been granted.203

Prescribed activities 10.38 A person must not carry out works for the construction or alteration of a building or structure for use for a prescribed activity of environmental significance,204 or the installation or alteration of any plant or equipment for use for a prescribed activity of environmental significance, without the authority of a works approval issued under the Environment Protection Act 1993 (SA).205 A works approval is not required if a licence has been issued under this Act, or development authorisation is required under the Development Act 1993 (SA).206 A relevant authority must refer an application for development authorisation involving an activity of environmental significance to the Environment Protection Authority (EPA),207 and the relevant authority cannot consent to or approve the development without having regard to the response of the EPA.208 Where the development involves, or is for the purpose of, an activity of major environmental significance, or for development within a River Murray Protection Area under the [page 385] River Murray Act 2003 (SA), the relevant authority must also refer the development application to the EPA. However, in this case, the EPA may direct the relevant authority to refuse the application or impose any conditions that the EPA thinks fit and the relevant authority must comply with the direction.209 Where an application for development authorisation is referred to the EPA, the EPA must, in determining whether or not to concur in the granting of the application for development authorisation, or whether to direct the refusal of the application or direct the imposition of conditions of any development authorisation, have regard to, and seek to further, the objects of the Act and have regard to the general environmental duty and any relevant EPPs.210

Australian Capital Territory 10.39 To the extent that ‘the Territory Plan must give effect to its object in

a way that gives effect to sustainability principles’, decision-making about development might be expected to be guided by these principles.211

Assessment tracks 10.40 For assessment purposes, an application for development, which is not exempt or prohibited, may be placed in a code track, a merit track or an impact track. The assessment tracks, from minimum to maximum, are: (a) code track; (b) merit track; (c) impact track.212 A development table for a zone must set out the minimum assessment track that applies to each development proposal that is not exempt development.213 Unless the relevant development table specifies otherwise, the impact track will be applied.214 The impact track will also apply to proposals set out in the Planning and Development Act 2007 (ACT) Sch 4 (unless otherwise exempted because they are not environmentally significant)215 and certain other proposals; for example, where the Commonwealth minister responsible for administering the EPBCA advises the minister that the proposed development is a controlled action under the EPBCA, but does not require assessment under that Act because a bilateral agreement between [page 386] the Commonwealth and the territory allows the proposal to be assessed under the Planning and Development Act 2008 (ACT).216 Applications for development in the impact track must include a completed EIS unless otherwise exempted from this requirement.217 The minister may exempt a development application from a requirement to include an EIS if satisfied that the expected environmental impact of the development proposal has already been sufficiently addressed by another study, whether or not the study relates to the particular development proposal.218 The Australian Capital Territory Planning and Land Authority is the relevant authority for determining applications unless it has been directed by the minister to refer the application to the minister for determination,219 in which case the minister may decide to consider the application or refer it back to the authority.220 The minister may direct the authority to refer the application if, in the minister’s opinion, the application raises a major policy issue; the application seeks approval for a development that may have a substantial effect on the achievement or development of objectives of the Territory Plan; or the approval or refusal of the application would provide a substantial public benefit.221 If the planning and land authority is satisfied that a proposed development

is likely to have a significant adverse environmental impact on a protected matter, the authority must refer the development application to the conservator of flora and fauna for advice, including advice about suitable offsets.222 If the conservator’s assessment is that the proposed development is likely to have a significant adverse environmental impact on a protected matter, advice about suitable offsets must be included. Development approval must not be given unless the development proposal is consistent with the conservator’s advice.223 Before the [page 387] authority decides an application, the minister may require it to be referred; however, the minister must not consider a referred application unless satisfied that the level of community consultation carried out by the proponent of the development proposal is sufficient to allow the minister to form an opinion.224 Where the minister is not so satisfied then the application may be referred back to the planning and land authority for further action and decision; or the minister may direct the authority to extend the public notification period and/or ask the proponent to give the authority stated further information in relation to the development application.225 Anyone may make a written representation about a development application that has been publicly notified.226 Public notification is only required for applications in the merit track and the impact track.227 A representation about a development application may relate to how the development proposed in the application meets, or does not meet, any finding or recommendation of the EIS for the development, but must not relate to the adequacy of the EIS.228 The decision-maker must consider each representation received by the authority.229 10.41 Development approval must be given for a development proposal on application if the proposal is in the code track and complies with the relevant rules.230 A code track proposal must not be approved subject to a condition unless the condition is prescribed by regulation.231 The regulations232 prescribe a number of conditions, including that stated action be taken to manage the impact of the development, whether on or off the development site; for example, for storing and disposing of waste, managing hazardous material, protecting trees, and minimising erosion. A bond may also be required for securing performance against the conditions of the approval. For a development proposal in the merit track, the decision-maker must

consider the prescribed criteria before making a decision, including the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.233 For applications for development in the impact track, the decision-maker must consider the same issues for which consideration is required in the merit track, plus the relevant EIS and the conclusions of any inquiry about the EIS and the offsets [page 388] policy.234 Development approval cannot be granted unless an EIS has been completed, or exempted; and unless also the proposal is consistent with the statement of strategic directions, any land management agreement for the land, and, if the proposed development will affect a registered tree, declared site or protected matter, the advice of the conservator of flora and fauna or Commonwealth, as appropriate, in relation to the application.235 Also, the minister must not approve a development if the approval would be inconsistent with advice given by the conservator as a result of a referral involving a protected matter unless the minister is satisfied that:236 (a) the approval is consistent with the offsets policy; and (b) the approval would provide a substantial public benefit. Also, development approval must not be given for a development proposal in the impact track if approval would be inconsistent with any advice given by an entity to which the application was referred, unless the person approving the application is satisfied that a number of prescribed matters have been considered and the decision is consistent with the objects of the Territory Plan.237 Conditions of approvals for both merit and impact track development may include, for example, requirements to manage on-site and off-site impacts, including any adverse environmental impacts, of the development, a requirement to enter into a bond for performance of the conditions, and, in relation to a place registered, or nominated for provisional registration, a requirement to enter into a heritage agreement under the Heritage Act 2004 (ACT).238 Notice of decisions on development applications must be given to all interested parties.239 If the notice is given to a person who may apply to the Australian Capital Territory Civil and Administrative Tribunal (ACAT) for review of the decision to which it relates, the notice must be a reviewable decision notice.240

Western Australia 10.42 In Western Australia, an application for development approval must be made where the development is of a kind referred to in a planning scheme241 or an interim development order242 as development that must not proceed without an approval;243 or the development is to take place on land that comprises a place registered by the Heritage Council under the Heritage of Western Australia Act 1990 (WA).244 For development applications valued between $2 million and $10 million ($20 million [page 389] in Perth) applicants may choose to have their proposal dealt with by a Development Assessment Panel rather than local government.245 When an application comes to the notice of a responsible authority and the development proposal appears likely, if implemented, to have a significant effect on the environment, the responsible authority must determine whether or not the environmental issues raised by the application were previously assessed in any assessment of the relevant planning scheme under the Environmental Protection Act 1986 (WA).246 If the environmental issues raised by the application were assessed in any assessment of the scheme, and the proposal complies with the assessed scheme and conditions of the scheme, the responsible authority need not refer it to the Environmental Protection Authority (the authority). Otherwise, the proposal must be referred to the authority.247 Where a proposal, other than a proposal under an assessed scheme, is implemented and is likely to have a significant effect on the environment, it may be referred to the Authority by the proponent, the minister or any other person.248 A proposal includes a project, plan, program, policy, operation, undertaking or development or change in land use, but does not include a planning scheme.249

Compliance with heritage legislation 10.43 The Register of Heritage Places is created and maintained under the Heritage of Western Australia Act 1990 (WA) (the Act) to identify and conserve places of significance to the state’s cultural heritage.250 The Act establishes the Heritage Council, which provides advice to the Minister for Heritage on the entry of places into the register.251 Where a place entered on the register forms part of land that is to be the subject of development, an application for development approval must be

made to the responsible authority in the case of land subject to a local planning scheme or local [page 390] interim development order; or, in any other case, to the Western Australian Planning Commission.252 Any person who carries out, or causes or permits to be carried out, a development on such land without approval or in contravention of any condition imposed, commits an offence.253 Any development proposal that may affect a place on the register must also be referred to the Heritage Council for consideration.254

Consent to clear native vegetation 10.44 Planning schemes may contain provisions relating to the conservation of the natural environment of the scheme area, including the protection of natural resources, the preservation of trees, vegetation and other flora and fauna, the maintenance of ecological processes and genetic diversity, and sustainable use or development of land,255 and thus impose requirements for development approval for activities such as the removal of vegetation. In addition, the Western Australian Planning Commission (the commission) may recommend to the minister that for the purpose of advancing the planning, development and use of any land within a part of the state to which a region planning scheme applies, the minister should introduce an improvement plan for the land, and the plan may include, for example, provisions with regard to land clearing.256 The commission may develop land that is the subject of an improvement plan that it has acquired and may enter agreements with owners of land the subject of an improvement plan in relation to a range of matters such as planning, rehabilitation and the clearing of land.257

Tasmania 10.45 In Tasmania, all developments are categorised by legislation as level 1, 2 or 3.258 Level 1 activities may be determined by the local authority but in doing so must further the objects of the legislation.259 These include, among other things, the promotion of sustainable use and development.260 The Director of Environmental Management may, however, require category 1 developments to be referred by the local planning authority to the Board of Environmental Management and Pollution Control for EA.261 Applications for level 2 activities must be referred to the board,262 unless they are merely

ancillary to an existing level 2 use and will not cause serious or material environmental harm.263 Where a proposal seeking a combined planning [page 391] scheme amendment and permit is referred to the board,264 it may request further information in order to undertake EA.265 Level 3 activities will undergo integrated assessment under the State Policies and Projects Act 1993 (Tas).266

Northern Territory 10.46 The development provisions of the Planning Scheme will control development in the Northern Territory.267 The minister may also intervene via interim development control orders, although no development can be permitted by this device that would otherwise be unlawful under the development provisions of the Planning Scheme; otherwise, however, such an order prevails over any inconsistencies in the Planning Scheme.268 In considering development applications, consent authorities are directed to have regard to environment protection objectives within the meaning of the Waste Management and Pollution Control Act 1998 (NT); any potential impact on natural, social, cultural or heritage values, any beneficial uses, quality standards, criteria, or objectives, that are declared under the Water Act 1992 (NT) s 73; and any public environmental report, or EIS, prepared or required under the Environmental Assessment Act 1982 (NT).269 The development consent authority must not consent to a proposed development if, in its opinion, the proposed development is contrary to a land use objective; and neither the authority nor the minister may consent to the proposed development if it is contrary to the development provisions or an interim development control order.270 Where a proposed development may have a significant impact on the natural environment, it may be declared ‘significant development’, 271 in which case the minister may request a Significant Development Report from the Planning Commission272 before either determining the application or referring it back to the Development Consent Authority.273

Planning agreements 10.47 A planning agreement274 is a voluntary agreement concluded between a developer and the consent authority under which the developer

may agree to provide material public benefits or pay monetary contributions for public purposes275 or [page 392] otherwise achieve or advance the purposes of the planning regime.276 The existence or offer of a planning agreement is a relevant consideration in evaluating applications for development, either by the consent authority or on appeal. A planning agreement voluntarily offered by a proponent can be made a condition of development consent, so long as the content of the condition is otherwise within the power of the consent authority. A public or planning purpose could include the conservation or enhancement of the natural environment.277 Purchasing land for conservation purposes, perhaps to provide for an offset, could fall within the definition of public services or public amenities.278 Conditions of development consent for activities in relation to heritage places may also require the applicant to enter into a heritage agreement for conservation of the heritage significance of a place.279 10.48 In New South Wales, for example, voluntary planning agreements (VPA) may be entered into between a consent authority and a developer who has sought a change to an environmental planning instrument or has made, or proposes to make, a development application.280 A planning agreement is a voluntary agreement under which the developer may agree to provide material public benefits or pay monetary contributions for public purposes or otherwise achieve or advance the purposes of the planning regime. Two of the relevant public purposes listed in the Act are ‘the monitoring of the planning impacts of development, and ‘the conservation or enhancement of the natural environment’. A public or planning purpose could, for example, include the conservation or enhancement of the natural environment and monitoring the planning impacts of development,281 and provision of access to the foreshore.282 Purchasing land for conservation purposes, perhaps to provide for an offset,283 could also fall within the definition of public services or public amenities.284 10.49 In Victoria, a condition of development consent may require that the applicant enter an agreement to control the use or development of the land the subject of the [page 393] application (a ‘section 173 agreement’).285 A section 173 agreement must not require or allow anything to be done that would breach a planning scheme or

a permit.286 A section 173 agreement, other than an agreement with a minister, may include a condition that the owner must provide a bond or guarantee that will be forfeited if the owner fails to fulfil his or her obligations arising from the agreement to the satisfaction of the responsible authority.287 The owner of land for which a section 173 agreement is proposed may apply to the Victorian Civil and Administrative Tribunal (VCAT) for an amendment of the proposed agreement, if it is a condition under a planning scheme or a permit that the owner must enter an agreement and he or she objects to any of the provisions of the agreement.288 A section 173 agreement must be taken into account by VCAT in determining any application for review.289 Agreements restricting the use of private land may be made under other environmental legislation.290 Covenants under the Heritage Act 1995 (Vic) between the owner of a registered place or land on which the registered place is situated and the Heritage Council or the National Trust may also bind the owner.291

Offsets 10.50 An offset is a device for allowing a development to proceed that might otherwise be refused consent, or that might enable environmental conditions to be placed on a grant of consent for permitted development. An offset could be required as a result of a planning agreement entered into by a proponent (see 9.47 above) and made a condition of development consent; or it could conceivably be required where statutory provisions allow the consent authority to specify a condition of consent requiring dedication of land free of cost or payments of monetary contributions where the development might require or increase the demand for public services and public amenities.292 For example, in Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225, such a condition was imposed requiring payment of moneys for ‘conservation land requirements’, more specifically to provide [page 394] for a vegetation corridor; although in the event the condition was later struck out in a merits appeal on the basis of lack of perceived demand. 10.51 In Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council (2006) 153 LGERA 355, it was said that an offset under a planning agreement

might be appropriate where a proposed development implemented all available prevention and mitigation measures, was justified, and where the development might otherwise proceed without an offset. Offsets for native vegetation or biodiversity loss are discussed in more detail at 13.36 and following.

Integrated assessment for major projects 10.52 Often referred to, particularly by opponents, as ‘fast-track’, this is a legislative device to provide a streamlined assessment and approval process for developments of particular economic or other significance for the state.293 It aims to avoid the delays inherent in any system of control where a number of permits must be sought for various features of, or undertakings associated with, a project. Large projects often involve a number of licensing agencies. Apart from local council planning requirements, pollution control and various resource management, agencies may all have to license various aspects of the proposal. Fast-track may be initiated either by devising special procedures for integrating consideration of the various licensing agencies, set out in generic legislation, by the use of ministerial call-in powers, or by using special development legislation. In this part of the world, ‘fast-track’ first appeared in the New Zealand National Development Act 1979, which applied to projects of ‘national importance’, by empowering the Governor-in-Council, after a planning inquiry, to issue all relevant permits normally required for the proposal. In practice, however, application of the legislation proved to be so controversial that the Act has since been repealed. 10.53 Fast-track has not, until recently, proved to be so attractive to Australian governments, which have in general preferred the project-byproject approach to facilitating major economic development. Nevertheless, there are some older examples of fast-track. In Queensland, under the SDPWOA, significant development may be ‘fast-tracked’ by having all relevant permit applications referred to the Coordinator-General for environmental coordination.294 Proposals for the development of mineral or energy resources that will be of major economic significance may also be referred to the Coordinator-General.295 [page 395] Fast-tracking of mining projects has also occurred in New South Wales;296

and may be facilitated in Tasmania under the Major Infrastructure Development Approvals Act 1999 (Tas). 10.54 The Queensland government’s assessment of the importance of the tourism industry to the Queensland economy has also led to the passage of the Integrated Resort Development Act 1987 (Qld)297 to provide for accelerated government approvals of large-scale private tourist development proposals. Projects favoured with this process will enjoy freedom from local controls and from objection and appeal processes by vesting processing of applications in the minister and approval in the Governor-in-Council. The minister appears to have complete freedom to decide what projects will be handled in this way and whether they are appropriate or not. 10.55 Other governments have established special units within the government bureaucracy rather than special legislation to facilitate the assessment of major projects and speed up the process of permit approval. The Commonwealth, for example, has a Major Project Facilitation Program298 administered within the Department of Infrastructure and Regional Development. 10.56 Today, capital investment and employment opportunities are likely to be major reasons for applying ‘fast-track’ procedures, though major development proposed in environmentally sensitive areas of state significance may also be the trigger point.299 Most states envisage the use of ministerial ‘call-in’ powers and powers to declare state significant development to deal with major projects. For example, in Victoria, the minister may call in a project where the application raises a major issue of policy and determination of the application may have a substantial effect on the achievement or development of planning objectives.300 The matter will then be referred to a panel constituted for the purpose under the Planning and Environment Act 1987 (Vic)301 before the minister makes a final determination on the application.302 The minister may also declare a development or proposed development to be of state or regional significance,303 which will in turn trigger the conferment of various powers such as compulsory acquisition, road closures, and removal of easements or other restrictions.304 10.57 In South Australia, the minister may effectively refer a major project to the Development Assessment Commission if of the opinion that a declaration [page 396] is appropriate or necessary for the proper assessment of development, or a

project of major environmental, social or economic importance.305 A project may be considered to be of major environmental, social or economic importance because of the cumulative impacts of the proposal with other projects.306 The Development Assessment Commission will formulate requirements for EA of the proposal.307 A decision whether to grant development authorisation for such a project will be made by the Governor, after considering a range of stipulated criteria.308 10.58 In the Australian Capital Territory, the minister may call in and determine an application to the planning and land authority if the application raises a major policy issue or the application seeks approval for a development that may have a substantial effect on the achievement or development of the object of the Territory Plan.309 10.59 In Tasmania, the minister may recommend to the Governor the making of an order that a project of state significance should be referred to the Resource Planning and Development Commission for assessment — a special development approval process that includes rights of public participation (although appeal rights are removed).310 To qualify, a project must demonstrate that it possesses at least two attributes; these include, apart from economic considerations, ‘significant impact on the environment’.311 Environmental impact alone will not suffice, while economic impact will. An integrated assessment, however, must seek to further the sustainable development objectives of the resource management and planning system, and be undertaken in accordance with state policies.312 Major infrastructure projects may be declared under the provisions of the Major Infrastructure Development Approvals Act 1999 (Tas). 10.60 In Queensland, the minister may give directions to assessment managers about matters of state interest;313 or call in a development that affects a state interest,314 so that the minister then becomes the consent authority.315 Projects may also be declared to be ‘significant’ by the Coordinator-General under the SDPWOA,316 because of potential environmental, economic or other impacts.317 A proponent may apply for such a declaration, or the Coordinator-General may make a declaration on his or her [page 397] own initiative.318 Environmental assessment under this Act is discussed in more detail at 11.45. 10.61 In New South Wales, ‘fast-tracking’ for major projects has often been

controversial, and the rules have recently been, once more, amended, although the assessment process will still promote a unified scheme for assessing major infrastructure and significant development.319 State significant development may be declared by a state environmental planning policy.320 The minister may also declare specified development on specified land to be state significant development, but only if the minister has obtained and made publicly available advice from the PAC about the state or regional planning significance of the development.321 The State Environmental Planning Policy (State and Regional Development) 2011 states that development is declared to be state significant development if the development is, by the operation of an environmental planning instrument, not permissible without development consent under Pt 4 of the Act, and the development is specified in Sch 1 or 2 of the SEPP.322 A state environmental planning policy may also declare a development, or any class or description of development, that a state environmental planning policy permits to be carried out without development consent under Pt 4, to be state significant infrastructure.323 The minister may declare specified development on specified land to be state significant infrastructure by means of a state environmental planning policy or by an order of the minister that amends a state environmental planning policy for that purpose.324 State significant infrastructure also includes other development that is an activity for which the proponent is also the determining authority and that, in the opinion of the proponent, would require an EIS to be obtained under the Environmental Planning and Assessment Act 1979 (NSW) Pt 5.325 10.62 The carrying out of major infrastructure projects is also assisted by the provisions of State Environmental Planning Policy (Infrastructure) 2007 (NSW), the purpose of which is to facilitate the effective delivery of infrastructure across the state, among other things by identifying the EA category into which different types of infrastructure and services development fall (including identifying certain [page 398] development of minimal environmental impact as exempt development).326 The Policy provides for a range of classes of development, development that is permitted with and without consent, and identifies development that is exempt, complying or prohibited. Where development is declared to be both state significant development and state significant infrastructure, the designation as state significant

development will prevail unless the declaration of state significant infrastructure relates to specified infrastructure on specified land, in which case the declaration of state significant infrastructure prevails.327 Any state significant infrastructure may also be declared to be critical state significant infrastructure if it is of a category that, in the opinion of the minister, is essential for the state for economic, environmental or social reasons.328 The minister is the consent authority for state significant development.329 Consent may not be granted if the development is wholly (but not partly) prohibited by an environmental planning instrument.330 A person is not to carry out development that is state significant infrastructure without ministerial approval.331 Environmental assessment of proposals for state significant development and infrastructure is discussed further at 11.33. 10.63 Although ‘fast-tracking’ often proves to be controversial, the reality is that governments will always wish to retain some power to ‘call in’ and deal with major development projects. Integrated assessment of complex projects is probably better carried out at state level than by local government because state agencies generally have more resources to handle the EA of such projects. The ability to monitor and assess the carrying out, and impacts, of such projects, however, may well be the feature of such approvals that ultimately impacts on community acceptance. To this end, conditions for monitoring and adaptive management may be crucial features of such consents. For example, one significant power that the minister does have in New South Wales is the ability to place conditions on approval that require monitoring and environmental auditing of major projects, both for compliance with conditions and to [page 399] assess environmental impacts.332 On the other hand, the legislation appears to be silent as to what the minister might do about monitoring that reveals adverse environmental impacts not previously predicted that do not amount to a breach of the conditions on which the consent was granted; although powers to modify a consent are set out generally in the EPAA s 96.

Special development legislation 10.64 Another way for governments to facilitate major development projects is by persuading parliament to enact special legislation for such projects. Many long-term developments have been authorised by this process, particularly where government wishes to make contractual arrangements with

a developer guaranteeing capital investment and employment in return for a supply of resources and infrastructure.

Indenture or franchise agreements 10.65 ‘Indenture’ or ‘franchise’ agreements are contractual arrangements concluded between the government and the proponent of major development and given force of law by a special Act of Parliament. In return for the developer agreeing to undertake and finance the project, the state government usually contracts to give exclusive resource rights (land, water, minerals or forests) and agrees to contribute to the costs of supplying the necessary infrastructure to support the project (roads, railways, harbour facilities, energy and so on). Such techniques are generally used to support multihundred million dollar minerals and gas recovery and processing projects,333 develop timber resources,334 construct toll roads,335 and facilitate urban redevelopment projects.336 They have also been used to encourage investment in new ‘green’ technology.337 The danger, as Fowler observes, is ‘that projects of major environmental [page 400] significance consistently will fall outside of environmental control systems, so that environmental protection will become a matter of ad hoc arrangements between governments and the relevant developers’.338 10.66 Many of the older franchise arrangements contain little in the way of environmental controls, and may indeed exempt the venturer from normal controls or liability,339 but modern franchise agreements either require compliance with existing environmental measures,340 or incorporate their own environmental management regimes, which may in fact be superior to the general regime of environmental control stipulated by the planning or other legislation, particularly in terms of monitoring the effectiveness of environmental measures applied to the project,341 a failing common to many projects assessed for environmental impacts.342 Many of the older agreements have also since been modified so as to introduce new environmental parameters.343 Each individual agreement must be scrutinised to determine the extent to which it overrides or replaces existing planning and environmental controls.

Project-oriented special development legislation 10.67 Project-oriented legislation is used to give parliamentary authorisation to specific projects that do not, unlike ‘franchise’ development,

involve any contractual arrangements between proponent and government, or at least none that need to be ratified by parliament. Special development legislation is generally characterised by making a minister the approval authority, and by curtailing formal consent and EA processes and rights of appeal that would exist under other legislation to which the proposal would otherwise be subject. Most states have made quite extensive use of this category of ‘special’ legislation to sanction (mainly) urban development and redevelopment projects: for example, international hotels;344 recreational and sporting complexes or projects;345 and large commercial, office block, shopping and other urban redevelopment projects.346 [page 401] Industrial developments may also occasionally receive favourable treatment in this manner rather than by the conclusion of a franchise agreement.347 10.68 Development and redevelopment, particularly of urban areas, but also, for example, of snowfields,348 or the site of the Sydney Olympic Games,349 may also be achieved by vesting control of the area in a specially appointed management authority to oversee particular development projects.350 The authority will then effectively become the consent authority, and normal processes for development approval, including EA and appeal rights, will be replaced by special procedures identified under the legislation.351 Once again, use of this technique will often raise public disquiet about the adequacy of attention to the environmental impacts of the favoured developments.

Appeals 10.69 Applicants for development consent, and objectors to development applications, are often allowed to appeal the decisions of planning authorities to specialist courts or tribunals. Since these are ‘merits’ appeals, the decision of the appeal body on the merits of the application is final, though points of law that arise during such an appeal may be appealed to a court of law. Before going to a specialist court or tribunal, however, an aggrieved party may sometimes be able to request an internal review or reconsideration of the decision. For example, in New South Wales, an applicant for development consent that is not designated or integrated development, may request a local council to review its decision on the application, and even include amendments to the original application to be considered on review, so long as

the development, as amended, is still substantially the same development as the development described in the original application.352 A review may also be requested where a council has determined that a development application is to be rejected and not determined. An applicant for the modification of a development consent on grounds that the minor modification will have minimal environmental impact may also request the council to review a determination made by the council.353 In the Australian Capital Territory, where the ACT Planning and Land Authority has approved subject to a condition or refused a development application, other than in the code track, the applicant may apply to the authority to reconsider its decision.354 Notice must be given to anyone who made a representation about the original [page 402] application, allowing the person reasonable time (not shorter than two weeks) to make a representation on the reconsideration application, and consider any representation made within the time allowed.355 Someone other than the original decision-maker must reconsider the decision.356 10.70 Generally, the original applicant for a permit always has a right of appeal,357 but appeal rights in favour of objectors are more restricted. In New South Wales, a person who has made a submission objecting to the development (an ‘objector’) has a right of appeal on the merits against the grant of consent to designated development, including designated development that is integrated development and state significant development that would otherwise be designated development.358 There is no right of appeal by an applicant or objector if the development has been the subject of a public hearing before the PAC.359 There is are no merits reviews for State Significant Infrastructure; and there is no right of third party appeal, except with ministerial approval, in relation to critical state infrastructure projects.360 In Victoria, a person who has objected to the grant of a permit may apply to the VCAT for review of the decision. Although a planning scheme can exempt decisions from review, it has been held that, consistent with the objects of the Planning and Environment Act 1987 (Vic), such provisions should be construed narrowly.361 [page 403] In addition, any person who is affected may apply to the tribunal for leave to

apply for review of a decision to grant a permit in any case in which objections to the application were made, and after hearing the relevant parties, the tribunal may grant leave if it believes it would be just and fair in the circumstances to do so.362 The Tribunal is instructed to take into account a broad range of matters in determining an appeal. 363 In Queensland,364 a person who made a submission about an application (a ‘submitter’) has limited appeal rights in relation to the assessment manager’s decision and referral agency’s response.365 In South Australia, only objectors in respect of ‘category 3’ developments can appeal to the Environment, Resources and Development Court (ERD Court).366 In Western Australia, it appears that rights of appeal for both applicants and objectors depend on whether a planning scheme confers, or is taken to confer, appeal rights; or whether some other law does so.367 A person with a sufficient interest, however, may be allowed by the State Administrative Tribunal368 to make submissions in an applicant initiated appeal;369 indeed, it is well established that a person ought to be joined as a party to proceedings if an order might be made that would affect that [page 404] person’s rights.370 In Tasmania, any person who made representations in respect of a permit application is entitled to appeal to the Resource Management and Planning Appeal Tribunal.371 In the Northern Territory, only applicants may appeal to the Lands and Mining Tribunal.372 In the Australian Capital Territory, an eligible entity for a reviewable decision may apply to the Australian Capital Territory Civil and Administrative Tribunal for review of the decision.373 Persons seeking review who are not the original applicant have 20 working days following notice of the decision to lodge an appeal.374 A decision of the minister on a development application may not be questioned in legal proceedings other than a proceeding begun not later than 28 days after the date of the decision.375 10.71 Environmental issues figure prominently in planning appeals, and in fact some of the most significant court cases have been merits based. The first time that any court has applied the precautionary principle to deny an application for development, for example, was in a merits appeal.376 Such rights of appeal are important not only because they give both applicants and objectors a chance to have a decision assessed by an independent and objective umpire, but also because once the appeal is heard and determined, the decision is final: there are no further rights of appeal.377 In a legal challenge to a decision, if successful, the matter will be returned to the original

decision-maker for reconsideration according to law; the court does not make the final decision. But in a merits appeal, the court or tribunal is the final arbiter, and the parties can finally say with certainty what is the outcome of that challenge. Much of the case law referred to in this book stems from merits review, particularly by objectors.378 [page 405] Significant examples of merits appeals are reported in publications such as the Environmental Law Reporter (ELR),379 and Queensland Environment and Planning Reports (QEPR),380 as well as the Local Government and Environment Reports of Australia (LGERA), and can be accessed through the Australian Legal Information Institute (Austlii),381 though they can also be accessed through the courts or tribunals themselves.382 Merits appeals also figure prominently; for example, in decision-making about sustainable development (see Chapter 9); biodiversity (see Chapter 13) and impacts of climate change (see Chapter 17). More case law is referred to in these chapters.

1.

The relevant legislation and regulations are: Environmental Planning and Assessment Act 1979 (NSW) (EPAA); Environmental Planning and Assessment Regulation 2000 (NSW); Planning and Environment Act 1987 (Vic); Planning and Environment Regulations 2015 (Vic); Planning and Development Act 2005 (WA); Planning and Development Regulations 2009 (WA); Planning and Development Act 2007 (ACT); Planning and Development Regulations 2008 (ACT); Planning Act 1999 (NT); Planning Regulations 2000 (NT); Land Use Planning and Approvals Act 1993 (Tas); Land Use Planning and Approvals Regulations 2014 (Tas); Development Act 1993 (SA); Development Regulations 2008 (SA); Sustainable Planning Act 2009 (Qld); Sustainable Planning Regulation 2009 (Qld). The Queensland regime replaces the Integrated Planning Act 1997 (Qld). See also England, ‘From Revolution to Evolution: Two Decades of Planning in Queensland’ (2010) 27 EPLJ 53.

2.

The definition of ‘works’ may include removal of vegetation or topsoil: see, for example, Planning and Environment Act 1987 s 3. Carrying out a ‘work’, however, would not normally encompass activities associated with the ordinary and normal pursuit of existing land uses; there must be a degree of scale or intensity, judged in the context of the site, that takes the activity beyond the ordinary uses of land: Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169. This might exclude, for example, minor land clearing, ploughing, planting, dumping of material and spraying with herbicides; although obviously it will be a matter of degree, and may depend on whether the changes brought about are substantial: see, for example, Great Southern Property Managers Pty Ltd v Colac-Otway Shire Council (2005) 144 LGERA 247 (significant ploughing, ripping or mounding may constitute ‘works’); Bowden v Break O’Day Council (2008) 162 LGERA 49 (scraping soil with a bulldozer and piling up removed vegetation, resulting in substantial interference with plants growing in a sensitive zone, held to be ‘works’).

3.

Planning and Development Act 2007 (ACT) s 7; Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 4; Planning Act 1992 (NT) s 3; Sustainable Planning Act 2009 (Qld) s 7; Development Act 1993 (SA) ss 4 and 6; Land Use Planning and Approvals Act 1993 (Tas) s 3; Planning and Environment Act 1987 (Vic) s 3; Planning and Development Act 2005 (WA) s 4.

4.

Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 4 and 26.

5.

Planning Act 1992 (NT) s 3; Sustainable Planning Act 2009 (Qld) s 10 (‘operational work’).

6.

Development Act 1993 (SA) s 4; Planning and Development Act 2005 (WA) s 4.

7.

Development Act 1993 (SA) s 4. ‘Regulated tree’; Development Regulations 2008 (SA) reg 6A. And see Re Honeywell Ltd and Commissioner for Land and Planning [2000] ACTAAT 28 (removal of trees — in this case three poplar trees — may affect the landscape so as to constitute a development). In the Australian Capital Territory, protected trees are managed under a different regime, the Tree Protection Act 2005 (ACT).

8.

Planning and Development Act 2007 (ACT) s 7; Land Use Planning and Approvals Act 1993 (Tas) s 3; Planning Act 1987 (Vic) s 3.

9.

For some of the difficulties that might arise in connection with this term, see Fox v Brisbane City Council (2003) 127 LGERA 390.

10. For example, in South Australia, activities of environmental significance, such as landfill, that are required to be licensed by the EPA: Evangelista v Development Assessment Commission (2004) 136 LGERA 180. 11. For example, Planning and Development Act 2007 (ACT) s 113(1); Sustainable Planning Act 2009 (Qld) s 528; Planning and Environment Act 1987 (Vic) s 126. 12. Per Talbot J in Katoomba Gospel Trust v Blue Mountains City Council (1993) 130 LGERA 266; see also Edgar, ‘Standard Deviation? The Problematic Pre-condition to SEPP 1’ (2002) 19 EPLJ 226. In the Northern Territory, the minister may issue an ‘exceptional development permit’ where the use or development would not otherwise be lawful under the relevant planning scheme: Planning Act 1999 (NT) ss 38(2) and 42. The authority may consent to a development proposal even if the proposed development is contrary to a planning scheme provision that includes statements of policy regarding the use or development of land if it notifies the minister in writing, and either the minister gives written approval for the consent, or after 14 days the minister has neither approved nor refused to approve the development: ss 9(1)(a) and 52(3). As to whether the imposition of a restrictive covenant might justify a subdivision involving clearance of native vegetation that would otherwise be contrary to the Northern Territory planning scheme, see Phelps v Development Consent Authority [2012] NTCA 02. 13. See England, ‘Judicial Interpretation of Planning Schemes under the Integrated Planning Act 1997 (Qld): The More Things Change …’ (2005) 22 EPLJ 281. 14. See Webster v Caboolture Shire Council [2008] QPEC 82; Westlink Pty Ltd atf Westlink Industrial Trust v Lockyer Valley Regional Council & Ors (No 4) [2013] QPEC 35. 15. See Nearn, ‘Urban Bushland Protection Through Planning Controls in New South Wales’ (1995) 12 EPLJ 318. 16. See, for example, Meriton Apartments Pty Ltd v Sutherland Shire Council [2006] NSWLEC 139 (SEPP 19); Shannon Pacific v Minister for Planning [2007] NSWLEC 669 (SEPP 14); Northwest Residential Pty Ltd v Minister for Planning [2009] NSWLEC 1065 (SEPP 44). 17. See, for example, BHP Ltd v Blacktown City Council (1989) 130 LGERA 1. 18. See, for example, Wingecarribee Shire Council v O’Shanassy (No 6) [2015] NSWLEC 138 (fine of $93,500 plus costs for carrying out earthworks that destroyed trees and native vegetation). 19. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 76; State Environmental Planning Policy (Major Development) 2005 (NSW) Schs 7 and 8. Exempt development does not apply to development that may impact on sensitive environmental features such as critical habitat or wilderness areas: s 76(3); Planning and Development Act 2007 (ACT) Sch 1.

For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 84A; State 20. Environmental Planning Policy (Major Development) 2005 (NSW) Sch 9; Development Act 1993 (SA) s 35. 21. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 76B (although state significant development that is partly, but not wholly, prohibited by an environmental planning instrument may be declared to be one for which the proponent must gain the minister’s approval before the project may be carried out: s 89E(2), (3)); Planning and Development Act 2007 (ACT) s 136. 22. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 76A; Planning and Development Act 2005 (WA) s 162; Planning and Environment Act 1987 (Vic) s 47; Development Act 1993 (SA) s 32. 23. Sustainable Planning Act 2009 (Qld) s 231(2). 24. Sustainable Planning Act 2009 (Qld) ss 235–238. Assessable development is set out in the Sustainable Planning Regulation 2009 (Qld) Sch 3 or otherwise declared under a planning scheme. Although not needing a development permit, other types of development may need a compliance permit or compliance with a code: see Sustainable Planning Act 2009 (Qld) ss 236(2) and 237(2). 25. See 10.52. 26. For example, Vegetation Management Act 1999 (Qld); vegetation removal on freehold and other land is assessable development under the Sustainable Planning Act 2009 (Qld) unless otherwise exempted; Sustainable Planning Regulation 2009 (Qld) Sch 3; Native Vegetation Act 2003 (NSW) (NVA) s 14. 27. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 79B (concurrence of Director-General of National Parks where development may impact on threatened species or their habitats); Sustainable Planning Act 2009 (Qld) ss 251 and 287 (‘concurrence agency’). Concurrence agencies are set out in the Sustainable Planning Regulation 2009 (Qld) Sch 7; Planning and Environment Act 1987 (Vic) s 61(3) (coastal Crown land). In NSW Land and Housing Corp v Campbelltown City Council (2002) 126 LGERA 348, Bignold J remarked that the power of an appellate body to determine an appeal despite lack of concurrence should not be exercised lightly; the concurrence should not be lightly ignored or bypassed using this power. 28. For example, Planning and Development Act 2007 (ACT) ss 148 and 149 (though approval should be generally consistent with the referral agency advice: s 151); Sustainable Planning Act 1999 (Qld) ss 250, and 292 (‘advice agencies’). Advice agencies are set out in the Sustainable Planning Regulation 2009 (Qld) Sch 7; Planning and Environment Act 1987 (Vic) ss 55 and 56 (responsible authority must consider referral agency comments: s 60(1)(d)). 29. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 91A(4) (if approval authority refuses to issue licence, consent authority cannot issue development consent). An approval authority may also be a concurrence authority: s 93A; Sustainable Planning Act 1999 (Qld) s 325(4). (If a concurrence agency’s response requires the application to be refused, the assessment manager must refuse it.) 30. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 89. 31. Development Act 1993 (SA) s 49. 32. See also Preston, ‘The Adequacy of the Law in Satisfying Society’s Expectations for Major Projects’ (2015) 32 EPLJ 182. 33. See 11.16. 34. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 76(2). 35. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 76(3). 36. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 76A(5) (complying

development); see also State Environmental Planning Policy No 60 — Exempt and Complying Development Schs 4 and 5. 37. For example, Planning and Development Act 2007 (ACT) ss 54 and 55; Sustainable Planning Act 2009 (Qld) s 574 (self-assessable development must comply with code), Sch 3 (‘code’); Sustainable Planning Regulation 2009 (Qld) Sch 5. 38. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 79(1), 79(5), 79A, 89F and 115Z; Environmental Planning and Assessment Regulation 2000 (NSW) cll 77–81 (designated development), 82–85B (state significant development) and 86–91 (other advertised development). As to when public notice is given, see Environmental Planning and Assessment Regulation 2000 (NSW) reg 6; Development Act 1993 (SA) s 38; Planning and Environment Act 1987 (Vic) ss 51 and 57; Planning Regulations 2000 (NT) reg 6 (for certain developments set out in Planning Act 1999 (NT) s 47A and Planning Regulations 2000 (NT) reg 8A there is no requirement for public notice; however, persons prescribed by reg 8B must be privately notified). 39. Submissions or representations may have to comply with the requirements of regulations; for example, be in a form required by law. Failure to comply will not necessarily deprive the representations of lawful authority; they just may not be given much weight: see, for example, Mackenzie Intermoodal Pty Ltd v Lawson (2003) 127 LGERA 219. 40. Conditions must be imposed for a planning purpose and fairly and reasonably relate to the permitted development: City of Enfield v Development Assessment Commission (2000) 106 LGERA 419; Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225; Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; Re Sunbay Developments Pty Ltd and Shire of Kalamunda (2006) 150 LGERA 116; Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 at [45]; and see Roberts, ‘Legality of Planning Conditions’ (1995) 12 EPLJ 78. Conditions must also be within the scope of power granted by the legislation, and be certain in their operation: see, for example, Charalambous v Ku-ring-gai Council (2007) 155 LGERA 352 (imposition of bond for tree protection outside the scope for which bonds might be imposed under the legislation). Invalid conditions may be severed from the rest of the permission so long as that does not fundamentally affect the nature of the consent: see, for example, Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508. And on the question of severability, see further 22.78. 41. See generally, for example, Planning and Environment Act 1987 (Vic) Pt 4 Div 1; Development Regulations 1993 (SA) cll 33–42; Environmental Planning and Assessment Act 1979 (NSW) (EPAA) Pt 4 Div 2. A condition of a planning approval is tantamount to a refusal if it significantly alters the subject development in respect of which the application was made: Mison v Randwick Municipal Council (1991) 23 NSWLR 734. 42. Environmental Planning and Assessment Regulation 2000 (NSW) Pt 6 Divs 5–7. 43. Section 38. 44. Category 1 and 2 developments are listed in the Development Regulations 1993 (SA) Sch 9. Category 3 developments are any development that is not a category 1 or 2. A development that is or is for the purposes of a prescribed activity of environmental significance cannot be classified as category 1: Development Act 1993 (SA) s 38(2a). 45. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 29A; and see Idonz Pty Ltd v National Capital Development Commission (1985) 58 LGRA 99; Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88. 46. Nelson v Burwood Municipal Council (1991) 75 LGRA 39; Hawkesbury City Council v Sammut (2000) 111 LGERA 208; Carriage v Stockland Development Pty Ltd (No 4) (2004) 135 LGERA 68. And see further 22.31. After the introduction of the Local Government Act 1993 (NSW), councils in New South Wales have been able to formalise these notification practices by adopting a Local Approvals Policy under this Act. In South Australia, notice to adjacent landowners about category

1 development is prohibited under the terms of the Development Act 1993 (SA) s 38(3)(a). 47. Scurr v Brisbane City Council (No 5) (1973) 28 LGRA 50; Antoniou v Roper (1990) 70 LGRA 351; Belongil Progress Association Inc v Byron Shire Council (1999) 106 LGERA 202; Simpson v Wakool Shire Council [2012] NSWLEC 163. And see further 22.43. Note, however, that legislation may save certain consents from the strict consequences of non-compliance by limiting those provisions in the Act that are to be regarded as mandatory; for example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 102. 48. See, for example, Friends of South West Rocks v Machro Pty Ltd (2004) 136 LGERA 198 (adverting to public objections not necessarily ‘considering’ them). And see further 22.63. 49. For example, Environmental Planning and Assessment Regulation 2000 (NSW) (EPAA) Sch 1 Pt 1; Planning Act 1999 (NT) s 46(3). 50. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 79C; Planning Act 1999 (NT) s 51; Planning and Environment Act 1987 (Vic) s 60(1)(e). 51. For example, Planning and Environment Act 1987 (Vic) s 60(1)(e); Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 79C. 52. Besides a council or the minister, this can also encompass a joint regional planning panel (ss 23G, 118); a planning administrator or planning assessment panel (ss 118, 118AA, 118AB); and the Planning Assessment Commission (PAC) (s 23D(1)(c)). See also Craig et al, ‘A Comment on the Proposed Environmental Planning and Assessment Amendment Bill 2008’ (2008) 14 LGLJ 35; Ghanem, ‘Amendments to the New South Wales Planning System — Sidelining the Community’ (2008) 14 LGLJ 140; Kiely, ‘The Effects of the Recent Amendments to the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) on the Role of Local Government’ (2009) 14 LGLJ 186. 53. A council may constitute a panel of experts (an independent hearing and assessment panel) to assess any aspect of a development application and report back to council, and indeed must do so if required by an environmental planning instrument: Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 23I. 54. See 11.33. 55. MCC Energy Pty Ltd v Wyong Shire Council (2006) 149 LGERA 59; Cranky Rock Road Action Group Inc v Cowra Shire Council (2006) 150 LGERA 81. Though where it is lodged with an application it then becomes a ‘relevant consideration’ under s 79C: see Marrangaroo East Pty Ltd v Blayney Shire Council [2011] NSWLEC 245 at [50]. 56. See 10.19. 57. See also Cranky Rock Road Action Group Inc v Cowra Shire Council (2005) 143 LGERA 356; MCC Energy Pty Ltd v Wyong Shire Council (2006) 149 LGERA 59. 58. Section 5A has three purposes; to decide whether a SIS needs to be prepared; as a head of consideration; and to decide whether there needs to be consultation with or concurrence of a public authority; Davis v Gosford City Council [2014] NSWCA 343. 59. Effects on threatened species are still a relevant matter for consideration under s 79C, and can still ground a refusal of development consent, even where those effects are not found to be ‘significant’; Davis v Gosford City Council [2014] NSWCA 343. 60. See also Hutchins, ‘Perceived Amenity: A View from South Australia’ (2002) 19 EPLJ 325. 61. Where a fundamental incompatibility between a proposed development and existing activities on neighbouring property (in this case a proposed residential subdivision and a poultry processing facility) cannot be resolved by appropriate conditions, then consent should be refused: Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68. 62. Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349.

Interestingly, it has been held that improvement to the amenity of an area immediately adjacent to 63. a development is a proper subject for a condition of a development consent: Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308. In this case, a condition that required the replacement of aboveground electricity and communication cables adjacent to the development as well as the placement of cables underground in respect of the development itself was held to be a valid condition. See also Botany Bay City Council v Ralansaab Pty Ltd [2010] NSWLEC 225; Optus Networks Pty Ltd v Rockdale City Council (Optus) (2005) 130 LGERA 429 at [37]. 64. Sections 80 and 80A. Breach of conditions may lead to civil enforcement: see, for example, Oshlack v Iron Gates Pty Ltd (1997) 130 LGERA 189; Mandalong Progress Association Inc v Minister for Planning (2003) 126 LGERA 408; and can also constitute a criminal offence: Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 125. 65. See Parramatta City Council v Hale (1982) 47 LGRA 319; Guthega Development Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (NSW) (Blue Cow case) (1986) 7 NSWLR 353. 66. See also, for example, Belmorgan Property Development Pty Ltd v GPT RE Ltd [2007] NSWCA 171; Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349. 67. Mison v Randwick Municipal Council (1991) 73 LGRA 349. This, however, now has to be read in conjunction with the EPAA s 80(3), which allows a development consent to be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations (see EPAA Regulation 2000 reg 95), as to any matter specified in the condition (deferred development consent). This is potentially of quite wide ambit: see Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294. See also Belmorgan Property Development Pty Ltd v GPT RE Ltd [2007] NSWCA 171. A development consent will lapse if the condition is not fulfilled: see, for example, Roberts v Blue Mountains City Council [2012] NSWLEC 2. Section 80A(2) of the Act also provides that a consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority. See, for example, Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 (condition requiring amended plan for minimising clearance of native vegetation). 68. Subject to normal principles of judicial review: see 22.67. Randwick Municipal Council v Manousaki (1988) 66 LGRA 330; Parramatta City Council v Hale (1982) 47 LGRA 319. One qualification to this is when a development complies with non-discretionary development standards: see s 79C(2). Another is where a component, process or design relating to the development is duly accredited: see s 79C(4). 69. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 5B. 70. Environmental Planning and Assessment Regulation 2000 (NSW) cl 92. 71. Section 68. 72. Section 89. 73. The term ‘activity’ is defined in s 110 in a similar way to the term ‘development’ in s 4. If development consent is required or has been obtained under Pt 4 of the Act (which encompasses s 79C), then it cannot be an ‘activity’ covered by the provisions of Pt 5 of the Act. 74. Defined in s 4 to include, for example, government departments and statutory state-owned corporations. 75. The authority responsible for giving the approval or undertaking the activity: ss 110 and 110A. 76. ‘To the fullest extent possible’ is to be construed as meaning ‘to the fullest extent reasonably possible’: Oshlack v Rous Water (No 2) [2012] NSWLEC 111. 77. The ‘determining authority’ will decide this question. A decision that an activity is not likely to

significantly affect the environment is reviewable as a matter of law: see further 11.24 and following. It has been held that a proposal to introduce fluoride to water supplies in New South Wales may fall within the ambit of ss 111 and 112, at least where the relevant authority has merely received approval, rather than been directed, to fluoridate water supplies: Oshlack v Rous Water [2011] NSWLEC 73. 78. For the meaning of ‘critical habitat’, see Threatened Species Conservation Act 1995 (NSW) s 4(1): Fisheries Management Act 1994 (NSW) s 220T; Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 4(1). Each planning authority exercising functions under the Act must also have regard to the register of critical habitat declared by the minister under the Threatened Species Conservation Act 1995 (NSW) s 47 and the Fisheries Management Act 1994 (NSW) s 220T; EPAA s 5B. 79. Lists of species are set out in the Threatened Species Conservation Act 1995 (NSW) Schs 1, 1A and 2. Note that a reference to a threatened species, population or ecological community for the purposes of s 78A(8)(a) does not include a vulnerable ecological community; though this does not affect the application of the Act to any threatened species or endangered population that forms part of a vulnerable ecological community: s 5D. 80. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 78A(8)(b). The contents of a SIS are prescribed in the Threatened Species Conservation Act 1995 (NSW) s 110. Substantial compliance with these requirements will suffice: see McGovern v Ku-ring-gai Council [2008] NSWCA 209. 81. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 79B(3), (4). Before deciding whether to grant concurrence, the criteria set out in s 79B(5) must be considered. Concurrence may also be granted conditional on specified voluntary action being undertaken: s 79B(8A), (8B). 82. Cranky Rock Road Action Group v Cowra Shire Council (2006) 150 LGERA 81 (CA); Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; Corowa v Geographe Point Pty Ltd (2007) 154 LGERA 117. And on jurisdictional fact, see further 22.46. 83. ‘Clearing native vegetation’ is defined in Native Vegetation Act 2003 (NSW) (NVA) s 7; ‘native vegetation’ is defined in s 6. 84. Native Vegetation Act 2003 (NSW) (NVA) s 12. Note: these provisions also apply to state protected land, defined under the (repealed) Native Conservation Act 1997 (NSW). These provisions remain in force until a state environmental planning policy otherwise provides: Native Vegetation Act 2003 (NSW) (NVA) Sch 3, item 4. 85. Native Vegetation Act 2003 (NSW) (NVA) s 14. 86. Native Vegetation Act 2003 (NSW) (NVA) s 13. 87. Native Vegetation Act 2003 (NSW) (NVA) s 5, Sch 1. 88. Native Vegetation Act 2003 (NSW) (NVA) s 25(f). 89. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 89J(1)(e) and 115ZG(1)(e). 90. Native Vegetation Act 2003 (NSW) (NVA) ss 12(1)(b) and 26–32. 91. Native Vegetation Act 2003 (NSW) (NVA) ss 18–24. 92. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 91. Part 4 Div 5 does not apply to Crown development: s 90(2). 93. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 91A(2). 94. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 91A(4). 95. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 91A(3). Where the approval body is also required to grant concurrence before a consent authority may grant a development

consent, the granting of the general terms of its approval is taken to also grant the concurrence provided that the matters to be considered in granting the general terms of its approval are the same as those required to be considered in deciding whether or not to grant the concurrence: s 93A. 96. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 91A(3). 97. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 93(2). 98. See 10.12. 99. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 80A(4). This may, for example, justify a consent authority imposing levies as a condition of development consent for ongoing maintenance of a conservation area: see Ron C Dunkley & Associates v Blue Mountains City Council [2009] NSWLEC 1396. 100. Manotik v Warringah Council [2008] NSWLEC 1463; Mosman Church of England Preparatory School v Warringah Council [2009] NSWLEC 1190; Minnici v Warringah Council [2009] NSWLEC 1098. 101. For example, Abacus Property Group v Ashfield Municipal Council [2009] NSWLEC 1097. 102. Small v Woollahra Municipal Council [2008] NSWLEC 1239. 103. Aberline Associates Pty Ltd v Sutherland Shire Council [2009] NSWLEC 1335. 104. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 80(3). The consent must comply with Environmental Planning and Assessment Regulation 2000 (NSW) cl 95. 105. Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 275–6; Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at [93] per Giles JA. 106. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 94(1). Provisions relating to development contributions are set out in Environmental Planning and Assessment Regulation 2000 (NSW) Pt 4. Section 94 is the exclusive source of power to impose conditions requiring monetary contributions: see Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41; Charalambous v Ku-ring-gai Council (2007) 155 LGERA 352. 107. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 94B. A contributions plan is made by councils in accordance with any directions issued by the minister (ss 94E and 94EA); and contain the particulars specified in the Environmental Planning and Assessment Regulation 2000 (NSW) cl 27. The minister may direct a council to approve, amend or repeal a contributions plan in the time and manner specified in the direction: Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 94EAA. Particular provisions apply for a contributions plan for complying development: s 94EC. Judicial notice is to be taken of a contributions plan: s 94EB. 108. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 94(1). 109. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 94(3). Such a condition may be imposed only to require a reasonable contribution towards recoupment of the cost concerned: s 94(4). 110. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 94(3)(b). 111. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 94(5)(a). 112. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 94(5)(b). 113. See also Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council (2006) 153 LGERA 355. 114. Valiant Timber and Hardware Co Pty Ltd v Blacktown City Council (2005) 144 LGERA 33. 115. Long v Hornsby Shire Council [2007] NSWLEC 267; Masterbuilt Pty Ltd v Hornsby Shire Council [2005] NSWLEC 212. 116. Meriton Apartments Pty Ltd v Ku-ring-gai Council (2006) 152 LGERA 301.

117. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 94A(1), (2), (2A). 118. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 94A(3). 119. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 94E. 120. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 96; Environmental Planning and Assessment Regulation 2000 (NSW) cll 115 and 116. 121. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 96(1). 122. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 96(1A). 123. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 96(2)(a). See, for example, Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 29. 124. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 96(2)(c), (2)(d); Environmental Planning and Assessment Regulation 2000 (NSW) cll 118 and 119. 125. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 96(3). See also North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; 97 LGERA 433; Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243. 126. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 96(2)(b). The minister, public authority or approval body has the power to veto the modification: s 96(2)(b). 127. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 96(5). As to biobanking, see 13.58. 128. Progress & Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236. See also Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; Willoughby City Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422; Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299. 129. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 96AA. 130. Section 60(1)(e). 131. Sections 60(1)(f) and 60(1B). 132. See 10.69. For an example of a development (extension of a winery and restaurant) that was refused permission because of incompatibility with the Mornington Peninsula ‘Green Wedge’ Zone, see Fosters Group Ltd v Mornington Peninsula Shire Council [2010] VCAT 104. 133. Section 60(1A). 134. The Environment Effects Act 1978 (Vic) applies to proposals, whether or not they require approval under the Planning and Environment Act 1987 (Vic), which could have a significant effect on the environment and for which the minister advises that an environment effects statement is required: Environment Effects Act 1978 (Vic) s 8. See further 11.58. 135. For the meaning of ‘responsible authority’, see Planning and Environment Act 1987 (Vic) s 13. 136. Where the notice is to be given by the applicant, the time period and sufficiency of notice are provided for in Planning and Environment Act 1987 (Vic) s 52(2A), (2B) respectively. 137. Planning and Environment Act 1987 (Vic) s 52(1)(a). 138. Planning and Environment Act 1987 (Vic) s 52(1)(d). 139. Planning and Environment Act 1987 (Vic) s 52(3). 140. Planning and Environment Act 1987 (Vic) s 52(4). See, for example, National Trust of Victoria v VCAT [2010] VSC 430. 141. Planning and Environment Act 1987 (Vic) s 52(1A). 142. For the definition of ‘planning authority’, see Planning and Environment Act 1987 (Vic) ss 8

(minister), 8A (municipal councils) and 9 (authorised ministers and authorities). 143. Planning and Environment Act 1987 (Vic) s 96C. 144. Planning and Environment Act 1987 (Vic) s 96C(1)(c); Planning and Environment Regulations 2015 (Vic) reg 42. 145. Planning and Environment Act 1987 (Vic) s 96B(1)(a); Planning and Environment Regulations 2015 (Vic) reg 41(1)(k) 146. Planning and Environment Act 1987 (Vic) s 57(1), (2). 147. Planning and Environment Act 1987 (Vic) s 97B(1). 148. Planning and Environment Act 1987 (Vic) s 97E(1)–(3). The minister does not have to establish a panel if there was no requirement for notification of the application: s 97E(5). 149. Under Planning and Environment Act 1987 (Vic) s 60. 150. Planning and Environment Act 1987 (Vic) s 97F(1). 151. Planning and Environment Act 1987 (Vic) s 97M. 152. See England, ‘From Revolution to Evolution: Two Decades of Planning in Queensland’ (2010) 27 EPLJ 53. 153. Sustainable Planning Act 2009 (Qld) s 231(2), Sch 3 (definition of ‘exempt development’). 154. ‘Assessable development’ means development specified in the Sustainable Planning Regulation 2009 (Qld) Sch 3 Pt 1 Column 2, Sustainable Planning Act 2009 (Qld) s 232(1)(c), Sustainable Planning Regulation 2009 (Qld) s 9(1)(a), or development declared under a state planning regulatory provision, planning scheme or certain other planning instruments to be assessable development: Sustainable Planning Act 2009 (Qld) Dictionary. A regulation may require code or impact assessment, or both, for assessable development: Sustainable Planning Act 2009 (Qld) s 232(3). 155. ‘Self-assessable development’ means development specified in the Sustainable Planning Regulation 2009 (Qld) Sch 3 Pt 2, Sustainable Planning Act 2009 (Qld) s 232(1)(a), Sustainable Planning Regulation 2009 (Qld) s 9(1)(b), or development declared under a state planning regulatory provision, planning scheme or certain other planning instruments to be self-assessable development: Sustainable Planning Act 2009 (Qld) Dictionary. 156. ‘Prohibited development’ means development set out in Sustainable Planning Act 2009 (Qld) Sch 1; or development declared under a state planning regulatory provision, planning scheme or certain other planning instruments to be prohibited development: Sustainable Planning Act 2009 (Qld) Sch 3. 157. ‘Development requiring compliance assessment’ means development specified in Schs 18 (particular development) and 19 (subdivision plans) of the Sustainable Planning Regulation 2009 (Qld), Sustainable Planning Act 2009 (Qld) s 232(1)(b), Sustainable Planning Regulation 2009 (Qld) ss 18, 19, or certain development declared to be development requiring compliance assessment by regulation: Sustainable Planning Act 2009 (Qld) s 232(2). 158. Sustainable Planning Act 2009 (Qld) ss 235, 236(1), 237(1), 238 and 578 (offence to carry out assessable development without a permit). However, self-assessable development must comply with applicable codes: ss 236(2) and 574 (offence to carry out self-assessable development in contravention of applicable codes). 159. Sustainable Planning Act 2009 (Qld) ss 237(2) and 575 (offence to carry out development without a compliance permit). An application or request for compliance assessment cannot be made for development if the development is prohibited development: s 239. The purpose of the compliance stage is to allow for development, or a document or work relating to development, to be assessed for compliance with, for example, a planning instrument or condition of approval: s 393.

160. Sustainable Planning Act 2009 (Qld) s 230. 161. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) Pt 4 Div 4. 162. Vegetation Management Act 1999 (Qld) Pt 2 Div 6; Sustainable Planning Act 2009 (Qld) Schs 3 and 24. 163. For the definition of ‘environmentally relevant activity’, see Environmental Protection Act 1994 (Qld) s 18. 164. Sustainable Planning Act 2009 (Qld) s 10 (‘material change of use, of premises’). 165. Sustainable Planning Act 2009 (Qld) ss 250–252; Sustainable Planning Regulation 2009 (Qld) Sch 7. 166. Sustainable Planning Act 2009 (Qld) s 257(1). 167. Sustainable Planning Act 2009 (Qld) s 257(2). For development requiring compliance assessment only, the compliance stage is the only stage that applies to the development: s 257(3). 168. Sustainable Planning Act 2009 (Qld) ss 232 and 233. 169. The assessment manager for particular classes of development is prescribed in the Sustainable Planning Regulation 2009 (Qld) Sch 6. 170. ‘Common material’, for a development application, includes all the material about the application the assessment manager has received in the first 3 stages of IDAS, including concurrence agency requirements, advice agency recommendations and contents of submissions that have been accepted by the assessment manager: Sustainable Planning Act 1999 (Qld) Sch 3. 171. Sustainable Planning Act 1999 (Qld) s 313, Sch 3. Applicable codes for assessing particular development are set out in the Sustainable Planning Regulation 2009 (Qld) s 11, Sch 5. See also Fox v Brisbane City Council (2003) 127 LGERA 390. Where the Regulation requires code assessment, a planning scheme (a ‘scheme’) or temporary local planning instrument (a ‘temporary instrument’) cannot require impact assessment instead of code assessment for the development and, to the extent the scheme or temporary instrument is inconsistent with the Regulation, the scheme or temporary instrument is of no effect: Sustainable Planning Act 2009 (Qld) s 233(3), (4). To the extent a planning scheme or temporary local planning instrument is inconsistent with a regulation because the planning scheme or temporary local planning instrument states development is selfassessable but the regulation states the development is assessable, codes in the planning scheme or temporary local planning instrument for the development are not applicable codes, but must be complied with: Sustainable Planning Act 2009 (Qld) s 233(2). 172. Sustainable Planning Act 2009 (Qld) Sch 3. 173. Sections 4 and 5. 174. Section 260. Assessment managers for different types of applications are prescribed in the Sustainable Planning Regulation 2009 (Qld) Sch 6. An application will be ‘properly made’ where it complies with the requirements set out in s 260: see s 261. The assessment manager may only proceed through the process of assessing the application where it is ‘properly made’: see ss 266, 267 and 269. And on ‘properly made application’, see Queensland Construction Materials Pty Ltd v Redland City Council [2010] QCA 182 (determined under equivalent provisions of the repealed Act). Where an application not ‘properly made’ comes before the court, the court may deal with the matter in whatever way the court considers appropriate: s 440. 175. Section 278. 176. Sections 270–293. Referral and concurrence agencies and their jurisdictions are set out in the Sustainable Planning Regulation 1999 (Qld) Sch 7. 177. The start of the notification stage depends upon whether an information request has been made: see Sustainable Planning Act 2009 (Qld) s 296.

178. Sustainable Planning Act 2009 (Qld) s 295. 179. Although the Sustainable Planning Act 2009 (Qld) defines a ‘properly made submission’ (Sch 3), which the assessment manager must accept (s 305(2)), the assessment manager may also decide to accept a submission that is not ‘properly made’: s 305(3). 180. Sustainable Planning Act 2009 (Qld) s 295(1)(a). 181. Sustainable Planning Act 2009 (Qld) s 290. 182. Sections 313–317, Sch 3 (‘common material’). 183. Sections 324 and 326; and see Greek Orthodox Community of St George Brisbane v Brisbane City Council [2011] QPEC 139. 184. An EIS is only required under this Act if the development also falls within the Commonwealth jurisdiction under the EPBCA and the chief executive decides that an EIS is required: ss 688–700; Sustainable Planning Regulation 1999 (Qld) regs 32–39; and see further 11.42. See also Fisher, ‘Environmental Impact Assessment in Queensland’ (2001) 18 EPLJ 109. 185. Sustainable Planning Act 2009 (Qld) s 424. 186. Sustainable Planning Act 2009 (Qld) s 326. And see Barnes v Southern Downs Regional Council (No 2) [2011] QPEC 119 (conflict with cultural heritage values; application refused); Abacus Funds Management v Sunshine Coast Regional Council [2012] QPEC 46 (conflict with management of environmentally sensitive areas; application refused). 187. Sustainable Planning Act 2009 (Qld) s 378. For example, a condition could be changed because of an environmental offence committed by an operator; or because development approval was issued on the basis of miscalculations about the quantity or quality of contaminants to be emitted: see Environmental Protection Act 1994 (Qld) s 73C. 188. The responsible entity is the entity that imposed the condition: either the assessment manager, a concurrence agency, the minister or the court: Sustainable Planning Act 2009 (Qld) s 369(1), Sch 3. 189. ‘Permissible change’ is defined in Sustainable Planning Act 2009 (Qld) s 367. 190. Sustainable Planning Act 2009 (Qld) s 369(1). For an example of a change in conditions, see DG Robertson Holdings Pty Ltd v Douglas Shire Council [2000] QPELR 428 (amendment of landscaping and bonding conditions). 191. Sustainable Planning Act 2009 (Qld) s 367. 192. Sustainable Planning Act 2009 (Qld) s 440; and see Rockhampton Regional Council v GKI Resort Pty Ltd [2013] QPEC 40. 193. Development Act 1993 (SA) s 38(1), (2)(a), (c). The regulations may also assign a form of development to category 2A, and this will prevail to the extent of any assignment provided by a development plan: s 38(2)(b). Various forms of development are assigned to categories under Development Regulations 2008 (SA) s 32, Sch 9 (note, no category 2A development has yet been specified). And see Corporation of the City of Adelaide v BFR Pty Ltd [2014] SAERDC 37. 194. Development Act 1993 (SA) s 38(3)–(5). 195. Development Act 1993 (SA) s 38(6)–(18). 196. Section 33. 197. Sections 54A and 54B. Significant trees are defined in Development Act 1993 (SA) s 4 and the Development Regulations 1993 (SA) cl 6A. And see Corporation of the City of Adelaide v BFR Pty Ltd [2014] SAERDC 37. Developer contributions may also be required to be paid into an urban trees fund: s 50B. 198. Section 36. 199. See the Development Regulations 1993 Sch 22 and the EPA Act Sch 1.

200. See further 11.60. 201. No notice is to be given to owners of adjacent land: see Development Act 1993 (SA) s 38(3). 202. Section 38(2a). 203. Section 74. 204. For a list of prescribed activities of environmental and major environmental significance, see Development Regulations 2008 (SA) Schs 21 and 22. The assignment of a form of development to category 1 cannot extend to a particular development if that development involves, or is for the purposes of, a prescribed activity of environmental significance: Development Act 1993 (SA) s 38(2a). 205. Environment Protection Act 1993 (SA) s 35(1). 206. Environment Protection Act 1993 (SA) s 35(2). 207. Established under Environment Protection Act 1993 (SA) s 11. 208. Development Act 1993 (SA) s 37; Development Regulations 2008 (SA) reg 24, Sch 8 cl 10. See also Development Regulations 2008 (SA) Sch 21 (list of prescribed activities of environmental significance). 209. Development Act 1993 (SA) s 37; Development Regulations 2008 (SA) regs 24, 25, Sch 8 cl 11. See also Development Regulations 2008 (SA) Sch 22 (list of prescribed activities of major environmental significance): Enfield City Council v Development Assessment Commission (1997) 69 SASR 99. See also Environment Protection Act 1993 (SA) Sch 1. 210. Development Act 1993 (SA) s 57. For the definition of ‘general environmental duty’, see s 25. See, for example, Harders & Harders v City of Port Lincoln [2002] SAERDC 117 (noise impacts); and see also Eco-action Kangaroo Island Inc v Kangaroo Island Council [2012] SAERDC 14 (role of EPA spent once a helicopter has taken off from a launching pad and reached cruising height). 211. Planning and Development Act 2007 (ACT) s 49. 212. Planning and Development Act 2007 (ACT) s 54(3). For exempt and prohibited development, see s 112(3). Provisions for resolving inconsistencies between different applicable codes are set out in s 115. 213. Planning and Development Act 2007 (ACT) ss 54(1) and 114(1), Dictionary (‘development table’). 214. Planning and Development Act 2007 (ACT) s 132. 215. Planning and Development Act 2007 (ACT) ss 138AA–138AD. 216. Planning and Development Act 2007 (ACT) ss 123, 124, 125 and 132. Note that for certain proposals mentioned in Sch 4, a proponent may apply for an environmental significance opinion from a relevant agency that the proposal is not likely to have a significant adverse environmental impact; or will not have such an impact if the development satisfies certain conditions: ss 138A(2) and 138AB(4). If a conditional environmental significance opinion has been given for a development, the development approval must include a condition that the development comply with the condition in the environmental significance opinion; s 165 (2) (d). A successful application will take the proposal out of the impact track unless other criteria listed in s 123 apply. ‘Significant adverse environmental impact’ is defined in s 124A. The process in relation to such an opinion is set out at ss 138AA–138AD. 217. Planning and Development Act 2007 (ACT) s 127. The requirements for EIS are set out in Pts 8.1 and 8.2. The minister may also establish an inquiry panel to inquire about the EIS and report back to the minister: Pt 8.3. 218. Planning and Development Act 2007 (ACT) s 211(1). Criteria for exemption are set out in the Planning and Development Regulation 2008 (ACT) s 50A.

Planning and Development Act 2007 (ACT) ss 113(1) and 158. The minister must not give a 219. direction in relation to an application for a development proposal in the code track; Planning and Development Act 2007 (ACT) s 158(1A). 220. Planning and Development Act 2007 (ACT) s 159. 221. Planning and Development Act 2007 (ACT) s 159(2). 222. Section 147A. 223. Section 128 (1) (b) (vi). 224. Planning and Development Act 2007 (ACT) ss 158 and 158A. 225. Planning and Development Act 2007 (ACT) s 158B. 226. Planning and Development Act 2007 (ACT) ss 156 and 157; Planning and Development Regulation 2008 reg 28. 227. Planning and Development Act 2007 (ACT) ss 121 and 130. 228. Planning and Development Act 2007 (ACT) s 156(6). Comments on a draft EIS may be made under s 219. 229. Planning and Development Act 2007 (ACT) ss 120(c) and 129(d). To the extent that representations are not ‘considered’ by the decision-maker, any subsequent approval may be set aside; see Forman v Australian Capital Territory Planning and Land Authority [2013] ACTSC 167. 230. Planning and Development Act 2007 (ACT) s 116. ‘Relevant rules’ means the rules that apply to the proposal in each relevant code: Dictionary. 231. Planning and Development Act 2007 (ACT) s 165(4). 232. Planning and Development Regulation 2008 reg 29. 233. Planning and Development Act 2007 (ACT) s 120. Development approval must not be given unless the proposal is consistent with the relevant code, and other matters set out in s 119. 234. Planning and Development Act 2007 (ACT) s 129. 235. Planning and Development Act 2007 (ACT) s 128(1). 236. Planning and Development Act 2007 (ACT) s 128(2). 237. Planning and Development Act 2007 (ACT) s 128(3). The matters for consideration are any applicable guidelines; all reasonable development options and design solutions; and any realistic alternative to the proposed development, or relevant aspects of it. 238. Planning and Development Act 2007 (ACT) s 165. 239. Planning and Development Act 2007 (ACT) ss 170–174. 240. Planning and Development Act 2007 (ACT) s 408(2). 241. Planning and Development Act 2005 (WA) s 4(1) (definition of ‘planning scheme’). 242. Planning and Development Act 2005 (WA) s 4(1) (definition of ‘interim development order’). 243. Planning and Development Act 2005 (WA) s 162. 244. Planning and Development Act 2005 (WA) s 163. 245. Planning and Development (Development Assessment Panels) Regulations 2011 (WA). 246. Environmental Protection Act 1986 (WA) ss 3 (‘responsible authority’, 48I(1). 247. Environmental Protection Act 1986 (WA) s 48I(2), (3)(c). When required, the application must be referred under ss 38 and 48I(3)(c). 248. Environmental Protection Act 1986 (WA) s 38(1), (2). For the meaning of ‘significant effect on the

environment’, see Re Environmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310 (must cause some change in the environment; does not include proposals that aim to preserve the environment in its current state). See also Greendene Development Corporation Pty Ltd v Environmental Protection Authority [2003] WASCA 242; Re Minister for Environment; Ex parte Elwood [2007] WASCA 137; Roe v Director General, Dept of Environment and Conservation (WA) [2011] WASCA 57. 249. Environmental Protection Act 1986 (WA) s 3 (definition of ‘proposal’). As to the EIA process under the Environmental Protection Act 1986 (WA), see 11.68. 250. The Register is established under Heritage of Western Australia Act 1990 (WA) s 46. See also s 4(3) (objects of the Act). ‘Cultural heritage’ means places of aesthetic, historic, scientific or social significance: s 3. ‘Place’ includes areas of land sufficiently identified and incorporating any works or buildings situated there, any relevant contents and such of their immediate surroundings, or land beneath the place, as is required for the purposes of conservation: s 3. 251. Heritage of Western Australia Act 1990 (WA) ss 47 and 51. The Heritage Council of Western Australia is established by s 5. 252. Planning and Development Act 2005 (WA) s 163. 253. Planning and Development Act 2005 (WA) s 222. 254. Heritage of Western Australia Act 1990 (WA) s 78. 255. Planning and Development Act 2005 (WA) ss 69 and 256(1), Sch 7 cl 4(2). 256. Planning and Development Act 2005 (WA) s 119. 257. Planning and Development Act 2005 (WA) s 121. Acquisition of land the subject of an improvement plan by the commission is in accordance with s 195. 258. Environmental Management and Pollution Control Act 1994 (Tas) ss 3, 24–26, Sch 2. 259. Land Use Planning and Approvals Act 1993 (Tas) s 51. 260. Schedule 1. 261. Section 24(1). 262. This also includes level 2 activities that do need a planning permit: s 27. 263. Section 25. On environmental harm, see 15.26. 264. Land Use Planning and Approvals Act 1993 (Tas) Pt 3 Div 2A. 265. Section 25A. 266. See 10.59. 267. Planning Act 1999 (NT) ss 9 and 26. 268. Planning Act 1999 (NT) s 32. 269. Planning Act 1999 (NT) s 51. 270. Planning Act 1999 (NT) s 52. 271. Planning Act 1999 (NT) s 50A(2)(b). 272. Established under Planning Act 1999 (NT) Pt 7A. 273. Planning Act 1999 (NT) ss 50B and 50C. See also ss 57A and 57B (reasons for determination). 274. See Liaros, ‘Planning Agreements: Towards Better Integration of Land-use Planning with Infrastructure Planning’ (2004) 10 LGLJ 73. 275. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 93F. 276. For example, Planning and Environment Act 1987 (Vic) ss 173 and 174; Development Act 1993

(SA) ss 57 and 57A; Land Use Planning and Approvals Act 1993 (Tas) Pt 5. 277. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 93F(2)(f); Development Act 1993 (SA) s 57. 278. Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council (2006) 153 LGERA 355. 279. Planning and Development Act 2007 (ACT) s 165(3)(l). 280. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 93F–93L. In Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council (2006) 153 LGERA 355 at [44], Jagot J held that if a developer offers during the hearing of an appeal under the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 97 to enter into a planning agreement, under the Land and Environment Court Act 1979 (NSW) s 39(2), the court may exercise the functions of the consent authority to impose a condition in terms of the offer. The court cannot, however, require a consent authority to enter into such an agreement: Progress & Securities Building Pty Ltd v Burwood Council (No 2) (2008) 158 LGERA 102. 281. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 93F(2)(f). 282. Robert v City of Canada Bay Council [2008] NSWLEC 1406. 283. See 13.36. 284. Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council (2006) 153 LGERA 355. 285. Planning and Environment Act 1987 (Vic) ss 62(6) and 173. For example, offset plans for removal of native vegetation may become subject to such an agreement as a condition of development consent: see Villawood Properties Pty Ltd v Greater Bendigo City Council [2005] VCAT 2703. 286. Planning and Environment Act 1987 (Vic) s 180. 287. Planning and Environment Act 1987 (Vic) s 175. 288. Planning and Environment Act 1987 (Vic) s 184(1). 289. Planning and Environment Act 1987 (Vic) s 84B(1)(h). 290. For example, agreements under Conservation, Forests and Lands Act 1987 (Vic) s 69. 291. Heritage Act 1995 (Vic) ss 85 and 86. See also Local Government Act 1989 (Vic) ss 181A–181E (environmental upgrade agreements). 292. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 94. The determination of s 94 contributions pursuant to a contributions plan is a complex exercise involving consideration of numerous matters, none of which are specified in the Act. The provision of reasons by the decision-maker for adopting a particular approach is sufficient to discharge the obligation to act ‘reasonably’: see Meriton Apartments Pty Ltd v Council of City of Sydney [2010] NSWLEC 64. 293. See Williams ‘The Course of Statutory Planning System Reform and Fast-tracking Development’ (2014) 31 EPLJ 439. See also Productivity Commission ‘Major Project Development Assessment Processes’ Research Report (2013), which made a number of recommendations for improving major development assessment and approval processes. 294. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 26. And on EA under these procedures, see 11.45. 295. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) ss 55, 57 and 67. 296. SEPP 45 — Permissibility of Mining; and see Pearson and Lipman, ‘Fast-tracking Mining Projects in NSW: State Environmental Planning (Permissible Mining) Act 1996’ (1996) 13 EPLJ 402. 297. See commentary by Fogg (1987) 4 EPLJ 309. 298. See .

299. For example, State Environmental Planning Policy (Major Development) 2005 (NSW) Schs 1 and 2. 300. Planning and Environment Act 1987 (Vic) s 97B. The main purpose of this appears to be to enable land acquisition and removal of certain impediments to the project. 301. The panel process is set out in Pt 8 of the Act. 302. See Bryant, ‘Ministerial Encroachment on the Decision-making Processes Under the Planning and Environment Act 1987 (Vic)’ (1996) 1 LGLJ 217. 303. Section 201F. 304. Sections 201G–201Q. 305. Development Act 1993 (SA) s 46. 306. Development Act 1993 (SA) s 46(1a). 307. Development Act 1993 (SA) s 46(7)–(15). The commission may require assessment in the form of an EIS or other level of formal review: ss 46B–46D; and see 11.60. 308. Section 48. 309. Planning and Development Act 2007 (ACT) ss 158–161. 310. State Policies and Projects Act 1993 (Tas) ss 16–28. 311. Section 16. 312. Section 20(5). ‘Integrated assessment’ means a consideration of environmental, social, economic and community issues relevant to that project and such other issues as may be prescribed: s 16. 313. Sustainable Planning Act 2009 (Qld) ss 417–419. 314. Sustainable Planning Act 2009 (Qld) ss 423–433. 315. Section 427. The minister’s decision may not be appealed: s 427(5). 316. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 26. 317. Section 27. 318. Section 27AA. 319. See Drake-Brockman v Minister for Planning (2007) 158 LGERA 349. 320. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 89C(2). 321. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 89C(3). 322. State and Environmental Planning Policy (State and Regional Development) 2011 reg 8, Schs 1 and 2. 323. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 115U(2), (3). State Environmental Planning Policy (State and Regional Development) 2011 reg 14 specifies developments listed in Sch 3 of the Policy for this purpose. Note: State Environmental Planning Policy (Infrastructure) 2007 and State Environmental Planning Policy (Major Development) 2005 both identify particular development that may be carried out without development consent. 324. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 115U(4). State Environmental Planning Policy (State and Regional Development) 2011 reg 15 specifies developments listed in Sch 4 of the Policy for this purpose. 325. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 115U(3)(b). 326. Regulation 2(d). 327. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 115U(6), (7).

328. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 115V. 329. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 89D. 330. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 89E(2), (3). And see Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185. 331. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 115W. A proponent may apply for approval (s 115X), or submit a staged infrastructure application: ss 115ZD and 115ZE. Requirements for EA, and the submission of an EIS will be notified by the Director-General: ss 115Y and 115Z. The public availability of an EIS is a mandatory requirement (s 115ZJ(2)) and various documents must be made publicly available: s 115ZL(1). The Director-General will prepare a report for the minister (s 115ZA), following which the minister may approve or disapprove of the proposal: s 115ZB. The proponent is entitled to reasons for a decision: s 115ZL(2). Conditions of approval may require biodiversity offsets: s 115ZC. Note that once development is declared to be state significant infrastructure, other parts of the Act, and approvals provisions of other legislation, either cease to apply to, or must be applied consistently with, the declaration: ss 115ZF–115ZH. Procedures and requirements applying to state significant infrastructure are set out in Environmental Planning and Assessment Regulation 2000 (NSW) Pt 10. 332. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 122A–122F. 333. For example, Rundle Oil Shale Agreement Act 1980 (Qld); Mount Isa Mines Limited Agreement Act 1985 (Qld); McArthur River Project Agreement Ratification Act 1992 (NT); Alcoa (Portland Aluminium Smelter) Act 1980 (Vic); Roxby Downs (Indenture Ratification) Act 1982 (SA); Hellyer Mine Agreement Ratification Act 1987 (Tas); Iron Ore (Marillana Creek) Agreement Act 1991 (WA); North-West Gas Development (Woodside) Act 1979 (WA); Iron Ore (FMG Chichester Pty Ltd) Agreement Act 2006 (WA); Nickel Refinery (BHP Billiton Nickel West Pty Ltd) (Termination of Agreements) Agreement Act 2008 (WA); Natural Gas (Canning Basin Joint Venture) Agreement Act 2013. 334. Timber concession rights in Tasmania have been traditionally granted by means of primitive types of franchise agreement that contain no environmental protection measures: see, for example, Florentine Valley Paper Industry Act 1935 (Tas); Huon Valley Pulp and Paper Act 1959 (Tas). The proposed Wesley Vale pulp mill project would also have involved a franchise agreement: Northern Pulp Mill Agreement Act 1988 (Tas). In Victoria, softwood plantations have been developed in this way, subject to existing codes of practice and rehabilitation works: Forests (Laminex Industries Agreement) Act 1989 (Vic); Forests (Victree Forests Agreement) Act 1989 (Vic); Forests (SEAS Sapfor Ltd Agreement) Act 1993 (Vic). See also Wood Processing (Wesbeam) Agreement Act 2002 (WA). 335. Eastlink Project Act 2004 (Vic). 336. For example, Golden Grove (Indenture Ratification) Act 1984 (SA), though many such projects are in fact still facilitated by special legislation without the conclusion of franchise agreements ratified by legislation. 337. Clean Coal Technology Special Agreement Act 2007 (Qld) (object is to accelerate the development, demonstration and widespread implementation, and use of clean coal technology by encouraging collaborative investment, by the state and the coal industry, in research, development and demonstration: s 2). 338. ‘Environmental Law and its Administration in Australia’ (1984) 1 EPLJ 10 at 32. 339. See, for example, Broken Hill Proprietary Steel Industry Agreement Act 1952 (WA). 340. For example, Western Mining Corporation Limited (Throssell Range) Agreement Act 1985 (WA) cl 37; Iron Ore Beneficiation (BHP) Act 1996 (WA) cl 9; Iron Ore (Yandicoogina) Agreement 1996 (WA) cl 13; Sydney Harbour Tunnel (Private Joint Venture) Act 1987 (NSW) s 8(2). 341. For example, the Mineral Sands (Cooljarloo) Mining and Processing Act 1988 (WA) makes it clear

in cl 9 that the project is subject to the provisions of the Environmental Protection Act 1986 (WA), together with added monitoring and reporting responsibilities introduced by cl 12. See also Iron Ore (Hope Downs) Agreement Act 1992 (WA) cl 39. 342. See further 11.108. 343. For example, Alumina Refinery (Worsley) Agreement Amendment Act 1978 (WA); Mineral Sands (Allied Eneabba) Agreement Amendment Act 1988 (WA). 344. Adelaide Railway Station Development Act 1984 (SA); International Hotel Development Act 1985 (Tas). 345. Cumberland Oval Act 1981 (NSW); Sanctuary Cove Resort Act 1985 (Qld); Australian Formula One Grand Prix Act 1984 (SA). 346. Botany and Randwick Sites Development Act 1982 (NSW); Toowong Railway Station Development Project Act 1985 (Qld); MFP Development Act 1992 (SA). 347. Silicon Development Act 1986 (Tas). 348. Alpine Resorts (Management) Act 1997 (Vic). 349. Olympic Co-Ordination Authority Act 1995 (NSW). 350. For example, the functions of the Sydney Harbour Foreshore Authority are to protect and enhance the natural and cultural heritage of the foreshore. In carrying out its functions, the authority is to take into consideration, where relevant, principles of ESD: Sydney Harbour Foreshore Authority Act 1998 (NSW) ss 12 and 15. 351. For example, Walsh Bay Development (Special Provisions) Act 1999 (NSW), although special provision is made for heritage considerations. 352. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 82A–82D. 353. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 96, 96AA and 96AB. 354. Planning and Development Act 2007 (ACT) s 191(1)–(3). 355. Planning and Development Act 2007 (ACT) s 193(5)(b). 356. Planning and Development Act 2007 (ACT) s 193(7). 357. See, for example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 97; Sustainable Planning Act 2009 (Qld) s 461; Development Act 1993 (SA) s 38; Development Regulations 1993 (SA) cl 32; Schs 9 and 22; Land Use Planning and Approvals Act 1993 (Tas) s 61; Planning and Environment Act 1987 (Vic) ss 77–81 and 82AA; Planning and Development Act 2005 (WA) ss 236 and 254; Planning and Development Act 2007 (ACT) s 408. An applicant in the Australian Capital Territory may also apply for reconsideration of the original decision: s 191. Applicants may, however, be restricted in respect of the circumstances in which appeals may be lodged: see Ciccarello v City of Charles Sturt [2010] SAERDC 49. Also, the right of an applicant to appeal may not extend to a successor in title to the original applicant. The applicant entitled to institute an appeal is usually the person or entity who lodged the development application with the consent authority: see Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223. Time limits for lodging an appeal may exclude any power in a court or tribunal to extend that period; see Figtree Reserve Pty Ltd v Goulburn Mulwaree Shire Council [2013] NSWLEC 65. Interestingly, the right to lodge an appeal was also considered to be a significant factor in refusing claims of misfeasance in public office and negligence lodged against a local council for delays in determining an application for development consent: see MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 6) [2011] NSWSC 1613. 358. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 98; Land and Environment Court Act 1979 (NSW) s 17(d). A local council has standing to object to the grant of development consent by a joint regional panel: Ku-ring-gai Council v Sydney West Joint Regional Planning Panel

(No 2) [2010] NSWLEC 270. And see O’Mara, ‘Environmental Impact Assessment and Objector Appeals under Part 4 of the Environmental Planning and Assessment Act 1979 (NSW)’ (2004) 9 LGLJ 143; Pearson and Williams, ‘The New South Wales Planning Reforms: Undermining External Merits Review of Land-use Decision-making?’ (2009) 26 EPLJ 19. 359. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 97(7) and 98(5). 360. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 115ZK. 361. Planning and Environment Act 1987 (Vic) s 82; and see Von Hartel v Macedon Ranges Shire Council [2014] VSC 215. For a person to object to the grant of a permit by a responsible authority, that person must be an individual or natural person or corporate body recognised by law, and an appeal to VCAT by an unincorporated association of people is therefore incompetent: Pole v Stonnington City Council [1999] VCAT 13. However, a representative of an unincorporated association may be allowed to make a submission but may not call or cross-examine witnesses: see, for example, Terminals Pty Ltd v Greater Geelong City Council [2011] VCAT 1209. And see Eccles, ‘Development Control and Third Party Rights under the New Planning Schemes in Victoria’ (1999) 4 LGLJ 124; Bryant et al, ‘Victorian Civil and Administrative Tribunal (VCAT): Implication for Planning Appeals’ (1998) 4 LGLJ 68. 362. Section 82B. Again, however, this is subject to a planning scheme exemption. 363. Planning and Environment Act 1987 (Vic) s 84B. The raw numbers of objectors, denoting extensive community opposition to an application, is not, by itself, a relevant matter unless supported by submissions about the detrimental impact on the community of approving the application; see Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505. 364. See McDermott, ‘Effective Environmental Dispute Resolution in Queensland: Commentary and Critiques from the Planning and Environment Court’ (2013) 30 EPLJ 150; Judge Rackemann, ‘Environmental Dispute Resolution-lessons from the States’ (2013) 30 EPLJ 329. 365. Sustainable Planning Act 2009 (Qld) ss 462 and 463. An objector will not lose a right to appeal by reason only of a minor or technical mistake in the process of lodging a submission: see Harding v Brisbane City Council [2008] QPEC 75. However, where a failure to comply with process results in an incompetent appeal unless the court allows an extension of time, then the consequences of allowing such an extension on both applicant and objector must be weighed in the balance: see Kangaroo Point Residents Association v Brisbane City Council [2009] QPEC 33. 366. Development Act 1993 (SA) s 38. 367. Planning and Development Act 2005 (WA) s 236. The minister has power to direct the tribunal to submit a matter to the minister for his or her determination if the minister considers the application raises issues of such state or regional importance that it would be appropriate for the application to be determined by the minister: s 246. 368. See McNab, ‘Marginal Improvements in the West: New Approaches to Managing Complex Environmental and Planning Cases in the State Administrative Tribunal of Western Australia’ (2014) 31 EPLJ 300. 369. Planning and Development Act 2005 (WA) s 242. And see Flint and Bowman, ‘The Review of Planning Decisions in the New State Administrative Tribunal (WA)’ (2005) 10 LGLJ 185; Parry, ‘Ecologically Sustainable Development in Western Australian Planning Cases’ (2009) 26 EPLJ 375. 370. Yallingup Residents Association Inc v State Administrative Tribunal (2006) 148 LGERA 132. 371. Land Use Planning and Approvals Act 1993 (Tas) s 61; and see Figg, ‘Protecting Third Party Rights of Appeal, Protecting the Environment: A Tasmanian Case Study’ (2014) 31 EPLJ 210. 372. Planning Act 1992 (NT) ss 111–116. 373. Planning and Development Act 2007 (ACT) s 408(1). ‘Eligible entities’ for ‘reviewable decision’ are

listed in Sch 1, columns 2 and 4, subject to exclusions relating to decisions about the ‘public interest’(s 407); and decisions listed in the regulations that are exempt from ‘third-party’ review: Planning and Development Regulation 2008 (ACT) regs 350 and 351. If a decision-maker makes a reviewable decision, the decision-maker must give a reviewable decision notice to each eligible entity and each ‘interested entity’ for the decision: Planning and Development Act 2007 (ACT) s 407. ‘Interested entities’ are listed in Sch 1 column 5. Reviews by ACAT are conducted under the Civil and Administrative Tribunal Act 2008 (ACT). 374. Planning and Development Act 2007 (ACT) s 409; this period may not be extended by ACAT: s 409(3). 375. Planning and Development Act 2007 (ACT) s 410. 376. Leatch v National Parks & Wildlife Service & Shoalhaven City Council (1993) 81 LGERA 270. 377. For further discussion about the nature of merits appeals, see 22.3. And see Edgar, ‘Participation and Responsiveness in Merits Review of Polycentric Decisions: A Comparison of Development Assessment Appeals’ (2010) 27 EPLJ 36, in which the author concludes that whereas the New South Wales Land and Environment Court (NSWLEC) adopts an adversarial process to merits review, VCAT adopts an inquisitorial approach. 378. Note, however, that merely gathering together a significant number of objections that denote extensive community opposition to an application, does not make that automatically a relevant matter for consideration; the objections have to actually say something about the impact of the proposal; see Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505. 379. See . 380. See . 381. See . 382. Land and Environment Court of New South Wales at ; VCAT at ; ERD Court at ; Planning and Environment Court (Qld) at ; Resource Management and Planning Appeal Tribunal (Tas) at ; the ACT Civil and Administrative Tribunal (ACAT) at ; Federal Administrative Appeals Tribunal (AAT) at ; State Administrative Tribunal (WA) at . The minister may call in an application made to the State Administrative Tribunal if the minister considers that the application raises issues of such state or regional importance that it would be appropriate for the application to be determined by the minister: Planning and Development Act 2005 (WA) s 246.

[page 407]

Chapter 11 Environmental Impact Assessment Introduction 11.1 Environmental impact assessment (EIA) is a systematic process for the examination and evaluation of the environmental effects of proposed activities that are considered likely to significantly affect the environment.1 Possible environmental impacts can, therefore, be identified and, if the proposal is allowed to proceed, mitigated. Ideally, EIA should also include an assessment of possible alternatives to the proposal, monitoring of predicted and actual impacts, and auditing for determining compliance with conditions attached to an approval.2 At the very least, it should provide decision-makers with enough information to formulate conditions of development consent, which might include conditions for monitoring and adaptive management as the project progresses.3 As indicated in Chapter 9, environmental assessment (EA) is a feature of all levels of strategic environmental planning and management. Ideally, in pursuance of ecologically sustainable development (ESD), such strategic environmental assessment (SEA) should also govern the preparation of all government plans, programs and policies.4 Reference to EIA, however, is generally made in the context of specific development projects or activities governed by the environmental planning legislation [page 408] discussed in Chapter 10, or sometimes by environmental protection legislation; for example, under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA). This chapter concentrates on statebased EIA. EA under the EPBCA is discussed in Chapter 6. 11.2 EA obviously takes place in determining applications for permits to exploit natural resources and emit pollution; however, when undertaken outside the process of considering applications for development consent,

these forms of assessment are not usually formally designated in law as EIA,5 although the same type of detailed analysis of potential environmental impacts will usually be undertaken before permits can be issued. Decisions about allocation and use of natural resources may, however, escape the strict procedural requirements for involving the public that attach to formal EIA processes; the legislation under which decisions are taken will have to be scrutinised to determine the exact nature of the decision-making process. Sometimes, where strategic assessment involving the public has been undertaken, decision-making that conforms to a management or other strategic plan will not attract further public EA at the project stage.6 Water management planning, for example, should involve extensive environmental planning for protection of aquatic ecosystems; each allocation subsequently made under water sharing arrangements need not therefore attract further processes for EIA.7 Likewise, SEA of forests under the Regional Forest Agreement (RFA) process means that forest projects operating under an RFA do not have to undergo further assessment and approval under the EPBCA.8 In New South Wales, once an environmental planning instrument is ‘biodiversity certified’, then a species impact assessment of development occurring under such a plan will not be required.9 11.3 The purpose of EIA is the production of an environmental impact statement (EIS), or similar, which is used to inform decision-makers and, usually, the general public, about the predicted outcomes (environmental, social and economic) of a proposal and what will be done to manage environmental effects.10 EIA is commonly applied to applications for development approval that raise significant potential for environmental harm, and to activities that do not require development approval, [page 409] but which might, nevertheless, have significant environmental impacts. Below this threshold, EA of projects and activities will still take place, albeit at a lower level of assessment: see Chapter 10. An EIS, or similar, will give the decision-maker the factual basis on which to consider whether the potential environmental impacts of a proposal justify the approval, modification or rejection of a particular proposal. 11.4 Although EIA can be required merely as a matter of government policy, the tendency has been to give statutory recognition to the process. Fowler11 has conveniently summarised the advantages and disadvantages of the legislative versus administrative systems. He concludes that bureaucrats tend to favour the administrative model, because it allows them more

flexibility and discretion. Proponents and public interest groups favour the legislative model, the former because the rules and procedures are clearly set out for all to follow and thus the scope for administrative discretion is reduced, and the latter because public participation in the process can be guaranteed. Developers want to know what environmental responsibilities they have to meet so they can predict the cost of the operation or undertake preliminary feasibility studies and avoid undue delays in the administrative process. Public interest or conservation groups want to be assured that their fears or concerns are being addressed and they will have a chance to respond. While accepting that every EIA is different in the factors that may need to be assessed, the legislative model provides the only way of writing definite obligations and procedures into the assessment process. EIA requirements have been developed most often in environmental planning12 or environment protection13 legislation, although separate legislation dealing exclusively with this subject exists in the Northern Territory14 and Victoria.15 Procedural requirements for assessing the need for, and preparation and evaluation of, environmental impact statements may be spelt out in the legislation or may be contained in regulations, administrative procedures and guidelines.16 [page 410] The legal status of EIA requirements may depend on the type of instrument in which the requirements are outlined. Regulations are promulgated as legal instruments under the relevant legislation, while guidelines generally are not. Regulations thus impose legally binding requirements for carrying out EIA. Guidelines, on the other hand, are usually intended to provide informal advice and guidance on policy and procedural matters. Guidelines may, however, be given enhanced legal status by being incorporated in regulations governing the assessment of the likely impact of activities on the environment.17 11.5 EIA generally incorporates most, if not all, of the following procedural steps: a referral of an activity of potential environmental significance to a decisionmaker for a decision as to the need for an EIS or some alternative form of documentation; a screening decision as to the need for an EIS or other documentation, based either on whether the proposed activity is likely to significantly affect the environment, or whether the proposed activity is on a list of activities for which an EIS is stipulated;

a scoping procedure by which the range of matters required to be addressed in an EIS is defined in some detail with reference to the circumstances surrounding the particular proposed activity; consultation with relevant government agencies and with the public, usually connected to an obligation to revise the draft EIS so as to respond to comments received; a review of the final EIS by the assessing authority, which usually results in recommendations being made to the decision-maker for the development or activity about whether the proposal should be given consent and on what conditions; and monitoring of the proposal, which involves requirements that operate after an activity has commenced so as to measure the accuracy of predictions made in an EIS and promote adaptive management.

Determination of need for EIA 11.6 In jurisdictions where the need for EIA is dependent upon an opinion being formed by the decision-maker as to the significance of the proposal, the determination of the need for EIA can only be made where there has been a prior referral of a proposed activity to the relevant assessing authority. The referral may be made by the proponent of a proposed activity, some other interested person or by a government authority [page 411] responsible for approving some aspect of the proposed activity. Most jurisdictions allow for both voluntary referrals18 and directed19 referrals.20 In New South Wales, Queensland, South Australia, Victoria and Western Australia, where EIAs may be automatically triggered if a proposed activity is of a certain type or falls within a certain class of proposal,21 a decision on the need for an EIS may be assisted by statutory powers to request or that require information to be supplied.22 [page 412] 11.7 The procedure for determining the need for EIA is similar in all jurisdictions. In order to detect whether a proposal should undergo EIA, decision-making authorities usually require a prospective developer (the proponent) to file a ‘notice of intent’ or preliminary advice outlining the proposal. The authority may then seek further information (screening) in

order to determine whether the proposal falls within a statutory list of designated or scheduled activities for which an EIS is mandatory, or whether the proposal is ‘likely to significantly affect the environment’. An activity may need to be assessed and approved at both Commonwealth and state levels, although bilateral arrangements between Commonwealth and state agencies generally avoid duplication of effort.23 11.8 The types of industries and activities that may be specifically targeted for EIA at state level include, for example, sewage treatment works, chemical plants, tanneries, breweries, marinas, animal feedlots, abattoirs, landfill sites, steelworks, timber, pulp and paper mills, mines and quarries.24 These categories of designated or scheduled development have frequently been included because of their potential to cause harm to the environment, usually by pollution, thus excluding projects that may have significant environmental impacts such as roads, large-scale tourist development and clearance of native vegetation.25 Consequently, there is a second category of activities for which formal EIAs may be required: those that are considered to be capable of creating significant environmental impacts.26 In this category of case, there is obviously more potential for the exercise of discretion in determining whether an activity might have ‘significant’ environmental effects, although guidelines for determining significance are usually available to explain the approach of the decision-maker.27 The level of EA applied to different activities may vary according to the anticipated severity of predicted environmental impacts. [page 413] 11.9 The range of matters to be addressed by EIAs will then be determined by any specified requirements or criteria set out by the relevant legislation or regulations;28 and by ‘scoping’29 for the full range of issues relevant to the proposal, which may involve public participation in commenting upon draft terms of reference.30 The proponent will then produce a draft EIS or similar, depending on what level of assessment is determined to be appropriate, for consideration by the decision-maker, other government agencies and the public. Following representations received from all these sources, the draft statement will be revised by the proponent and the final document will be used by the consent authority to assess the development application and either to refuse it or, more likely, to draw up conditions of approval. 11.10 A final component of the EIA process that has been relatively underutilised in Australian jurisdictions is monitoring and evaluation. This involves making a comparison between predicted and actual impacts, after an activity has commenced, in order to measure the accuracy of predictions made during

the EIA process. Where appropriate, conditions originally applied to an activity may be then varied in view of the results of monitoring (adaptive management). Monitoring also serves the secondary purpose of helping to ensure that the proponent complies with conditions imposed by the decisionmaker as part of the approval for the activity.

Interim protection pending EIS 11.11 Since the purpose of EIS is that development should not take place without appropriate assessment before approvals are granted, the timing of referral and triggering mechanisms usually ensures that the environment is not affected by a proposal pending the process of EIA. Most jurisdictions also provide expressly that action on a proposal cannot proceed further until completion of EIA requirements.31 As part of the decision-making process, it may constitute an offence to undertake a controlled activity while EA is still ongoing.32

Inquiries 11.12 Some jurisdictions make provision for projects of major significance to undergo a public inquiry or review process rather than, or in addition to, the usual EIA procedures.33 The report of an inquiry will not be binding on decision-makers; like the [page 414] EIS, it will be a factor to be considered in decision-making.34 The decision to order an inquiry is conferred on the minister administering the EIA procedures.

EIA Content 11.13 EIA content is determined by the issue of directions, often referred to as guidelines, requirements or terms of reference, which specify the scope of the assessment to be prepared in each case. In addition, judicial standards for the adequacy of the assessment also govern the content.35 In most jurisdictions, broad guidelines for the required content of EIAs are provided by the relevant legislation, regulations or administrative procedures. These guidelines are intended to identify the relevant environment that might

be affected, what sort of effects might be expected, the standards and safeguards that are proposed, monitoring and management programs, and whether any alternatives are available. While these requirements assist in determining whether a particular assessment is adequate in the legal sense, the practice in all jurisdictions is to provide specific directions on a case-by-case basis with respect to the matters required to be addressed in an EIA.36 This usually requires consultation between the proponent and the determining authority, and sometimes other referral agencies and the general public. Regulations or administrative procedures may contain general directions regarding the format and layout of an EA.37

The role of EIS in decision-making 11.14 An EIA does not introduce an environmental ‘veto’ power into administrative decision-making. It is a means of ensuring that environmental considerations receive equal weight in the decision-making process along with the social and economic advantages of a proposal. [page 415] When the Commonwealth’s Environment Protection (Impact of Proposals) Act was enacted in 1974 (now replaced by the EPBCA), the then Minister for Environment and Conservation, Dr Moss Cass, said this of the legislation: It will not grant me the exclusive power of veto over proposals or policies. It will not force developers to abandon environmentally unsound objectives. It will not ensure that the government makes environmentally sensible decisions. It will not give individual citizens the power to stop bad projects or to set conditions for moderate ones. The legislation will, instead, enable me to gather extensive information on specific proposals. It will force developers to include environmental impact in their planning. It will present the government with comprehensive information about environmental impact as an aid to decision making. And it will enable the public to argue a case publicly, to have the case published, and to force governments to justify their decisions.38

An EIS, or evaluation report on a completed EIS,39 is a guide to decisionmaking, not a compelling, authoritative or enforceable document. Predictions or undertakings made in an EIS do not create legally enforceable obligations against the proponent.40 The EIS and any assessment report is intended merely to alert the decision-maker and the public to inherent problems in carrying out, or not carrying out, the proposal.41 The decision-maker is not bound to follow any particular recommendations in the assessment report, or to adopt advice from any other source. Generally, though, there exists a statutory obligation to ensure that the report and accompanying

documentation is taken into account when deciding whether to approve, or concur with, a project or activity.42 Failure to give adequate consideration to matters set out in an EIS, or failure to evaluate matters that should have been set out in an EIS, but were not, which are relevant to the proposal, may lead to any subsequent decision to approve the proposal being declared to be unlawful.43 [page 416]

State-based EIA 11.15 All states have legislated for EIA, though the precise requirements differ markedly from state to state. New South Wales has the most detailed, and most judicially scrutinised, scheme.

New South Wales 11.16 An applicant for development consent44 or proponent of an activity45 must prepare an EIS if the proposed development either falls within the category of ‘designated development’ under the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) Pt 446 or the development falls within Pt 5 (activities not requiring consent under Pt 4) and is an ‘activity’ that is ‘likely to significantly affect the environment’.47 Where the environment likely to be significantly affected is that of an endangered species or ecological community,48 a species impact statement (SIS) must also accompany the application.49 EA must also be undertaken, on a case-by-case basis, for projects declared by the minister to be state significant development under Pt 4 Div 4.1; and state significant infrastructure under Pt 5.1.

Designated development 11.17 There are two ways of declaring designated development under the Act. Either an environmental planning instrument50 or regulations made under the Act may contain provisions declaring any class or description of development (whether by reference to the type, purpose or location of development or otherwise) to be designated development. The Environmental Planning and Assessment Regulations 2000 (NSW) Sch 3 declares a wide range of activities to be designated development, including, for example, numerous kinds of chemical industries with high pollution potential,

[page 417] extractive industries,51 marinas,52 intensive animal industries and fish farms, pulp and paper works and landfills. Most categories are designated either by the size of the activity (designated development only above a certain threshold) or proximity to sensitive environments (for example, natural waterbodies or wetlands). No clear distinction is made between public and private development by Sch 3, but it is apparent from the list that most designated developments would be undertaken in practice by private entities. 11.18 Because the relevant activities that constitute designated development are prescribed by legislation, there is usually very little argument about whether an EIS might be required. It might occasionally, however, be a matter for interpretation as to whether a particular activity falls within the description of a particular designated development.53 In this case, the proper way to determine the issue is to apply a test of characterisation; that is, ask what is the purpose of the development, in order to ascertain whether this is a dominant purpose or merely ancillary to some other purpose. For example, a sewerage works might fall within the definition of designated development; but can a sewerage works that is incidental to a subdivision proposal still be characterised as designated development? Such a question can only be answered by a purposive approach to construction of the relevant statutory provisions, which attempts to ascertain the intention of parliament. The New South Wales Court of Appeal has held that developments characterised as designated do not lose such characterisation merely because they are part of a larger project or are not the main purpose of the development, as long as they are not an ‘insignificant’ part.54 11.19 In considering whether development that involves additions or alterations to existing or approved development is itself ‘designated development’, the regulations direct that development will not be designated if, in the opinion of the consent authority, the additions or alterations will not significantly increase the environmental [page 418] impact of the total development; and mandate that certain factors must be taken into consideration in reaching this conclusion.55 In Boral Resources (Country) Pty Ltd v Clarence Valley Council [2009] NSWLEC 81, the court held that the formation of an opinion under these provisions was a precondition to the exercise of power to grant development consent; and that failure to impose relevant conditions of consent, in the absence of any other

evidence to the contrary, meant that the necessary conclusions could not have been formed based on the factors referred to in the regulations. Where a development is designated, and not supported by an EIS, then the application is ineffective and council has no power to deal with it.56

Crown development 11.20 The Crown and other prescribed persons57 enjoy a special position in relation to any application for environmental planning consent made by them, including such activities as are declared to be ‘designated developments’. The consent authority cannot refuse its consent to the application except with the written approval of the minister, nor impose a condition on its consent except with the written approval of the minister or the applicant.58

Activity 11.21 Part 5 of the Act (‘Environmental Assessment’) applies to any ‘activity’59 that is a prescribed activity, an activity of a prescribed kind60 or an activity that is likely to significantly affect the environment. The term ‘activity’ is defined similarly to the term ‘development’ in Pt 4, except that it excludes, among other things, any act, matter or thing for which development consent is required or has been obtained under Pt 4; or any act, matter or thing that is prohibited under an environmental planning instrument, as well as certain other exempt and excluded development.61 [page 419] 11.22 Section 111 of the Act requires determining authorities62 to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of those activities.63 In Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231, Biscoe J said (at [158]): Section 111(1) can scarcely be read literally and without some modification of its terms. For example, the phrase ‘to the fullest extent possible’ would present an insoluble problem to a determining authority in discharging the almost limitless burden imposed by the word ‘possible’, particularly having regard to the very wide definition of ‘environment’ (in s 5A). Accordingly, the mandatory duty under s 111 is to be applied reasonably and with practicability.64 The duty is to consider to the fullest extent reasonably practicable, matters that will or are likely to affect the environment. The duty to consider under s 111 is not restricted to any time frame; hence, matters affecting or likely to affect the environment that first come to the attention of a determining authority after it had first commenced to carry out an activity could not be ignored on that account. The above analysis is largely drawn from Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1987) 7 NSWLR 353 at

366–368 (CA); and Transport Action Group against Motorways v Roads and Traffic Authority [1999] NSWCA 196 at [68]–[71].

Where an activity is likely to significantly affect the environment, a determining authority cannot carry out the activity, or grant an approval in relation to the activity, unless it has obtained or been furnished with, and has examined and considered, an EIS in respect of that activity.65 The effect of these provisions therefore is to apply Pt 5 of the Act to any development that does not require consent under Pt 4, and in particular to require an EIS where the development is likely to significantly affect the environment. [page 420] 11.23 A wide range of ‘activities’ has been captured by these provisions; for example, the grant of a lease over a portion of a national park to facilitate a tourist development,66 and a decision to reopen a four-wheel-drive track within a national park.67 Forestry operations being undertaken by private parties on Crown land under licence from the Forestry Commission of New South Wales have been held to fall within Pt 5 of the Act.68 So have determinations by the Minister for Fisheries of applications for commercial fishing licences,69 and approvals to fluoridate local water supplies.70 Renewals of environment protection licences by the Environment Protection Authority (EPA) have been specifically excluded.71 Where a development is being undertaken by virtue of existing use rights72 conferred by Pt 4 Div 10 of the Act, it will constitute an ‘activity’ within the meaning of Pt 5, provided some other type of approval is required from a determining authority.73

Likely to significantly affect the environment 11.24 A wide range of considerations is likely to be relevant to any determination of the potential significance of an activity. While some assistance for decision-makers, proponents and interested members of the public may be derived from criteria prescribed by legislation or publicly available guidelines and planning circulars,74 the discretionary nature of this test has also inevitably been questioned in legal proceedings, thus enabling the courts to pronounce on how this obligation should be [page 421] approached. However, the reasons exposing the basis of such a decision, while

they must be adequate, should not be examined in an ‘overly critical or pernickety way’, or by construing words too narrowly.75 11.25 Matters to be considered in evaluating ‘significance’ are set out in the Regulations.76 The Act also introduces additional factors that must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats.77 Where factors are prescribed in this way, to assist decision-making and inform all parties, it is very unlikely that these will be regarded as an exclusive list of factors to be considered, and that no other factors may be deemed relevant. Generally, the statutory list is a mandatory indication of what must be considered in determining relevance. However, in the context of any particular determination, other factors not listed may also become relevant in the circumstances of that case.78 As has been remarked in the Land and Environment Court: … bearing in mind the infinite number of possible ‘activities’ which may be sought to be carried out in a myriad of different environments, it is difficult if not impossible to be precise about what may be considered as a significant effect.79

11.26 First, it has been said that the term ‘likely’ means a ‘real chance’ or ‘possibility’, but does not require a finding that a possible consequence is more probable than not.80 A ‘mere possibility’, however, is not enough.81 Second, the court has offered the view that a significant effect must be an important or notable effect on the environment, something that is weighty or more than ordinary.82 For example, although the Land and Environment Court has held that the presence [page 422] of existing impacts in the area of a proposed activity must be taken into account in determining whether a new activity will significantly affect the environment, it has qualified this by stating that impacts which, when considered alone, might appear ‘significant’, should be discounted if they have only a marginal impact on the relevant existing environment.83 To be considered significant, the anticipated new impacts must further exacerbate the existing situation.84 11.27 On the other hand, the relevant area to be considered in terms of significant impacts may extend beyond the site of the proposed activity and directly adjacent areas to include the whole undertaking of which the site is a part, particularly where there may be cumulative or continuing effects.85 This is acknowledged, for example, in the seven-part test for evaluating significant

effects on threatened species and ecosystems.86 However, the focus should be foremost on the area within which an activity is to be undertaken, together with adjoining areas. In Bailey v Forestry Commission of New South Wales (1989) 67 LGRA 200,87 the commission argued, pursuant to the findings above, that the relevant environment for the purposes of applying the significance test to forestry operations, should, therefore, be the whole of the forest or woodchip supply area, which took in a large part (300,000 hectares) of the state forests of south-eastern New South Wales. The significance of this argument was that the areas in which logging was being challenged had either been selectively logged in the past, or were largely unlogged, while the wider area suggested by the commission had been extensively logged. The commission argued that, taken in context, because the wider area of forest had already been extensively logged, further logging of the relatively small areas under consideration could not possibly have a significant effect. The court rejected this submission. It was not reasonably open to the commission to argue that logging would not significantly affect the environment since (in Jarasius) it would be replacing native old growth forest with regenerated forest, or (in Bailey) would be likely to result in soil erosion. Controlled burning, both before and after logging, should also be subject to an EIA because it would cause erosion and reduce the diversity of plants and animals. If the commission’s argument had been accepted, then the court would effectively have had to apply the EIA process to a fully logged environment. The court held that it is not reasonably open to a proponent to extend the scope of the relevant environment simply to diminish the significance of the likely impacts within the site area. [page 423] 11.28 To try to reduce the significance of ‘likely impacts’, a proponent may offer or suggest ameliorative measures to be built into the proposal. This is acceptable so long as the ameliorative measures are offered as part of the application for consent and not added on as conditions of consent. In Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48, Preston CJ said (at [83]): … the description of the development the subject of the development application is not restricted to the nature, extent and other features of the development but can also include ameliorative measures to prevent, mitigate, remedy or offset impacts of the development. However, in order to be able to be considered in answering the inquiry of likely impact, the ameliorative measures must be proposed as part of the development application. Ameliorative measures not proposed as part of the development application, but which are imposed afterwards, as conditions of consent … are not able to be considered in answering the inquiry as

to likely impact. This is because the inquiry required … focuses on the development and its likely impact before the determination of the application and not afterwards.88

11.29 Whether the relevant ‘environment’ may also include economic, social and other factors is also a matter to be determined, initially, by the definition of this term in the relevant legislation. In New South Wales, where ‘environment’ is defined in the EPAA s 4 to include ‘all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings’, economic and social impacts have been considered relevant.89 In Western Australia, the court has interpreted the term ‘surroundings’ in a different legislative context as not including extraneous commercial factors such as alternative sites for the extraction of resources and employment opportunities. The court also found that by attempting to find political solutions in order to balance environmental and economic factors, the EPA had exceeded its statutory functions.90

Decision not to require an EIS 11.30 A determination by the decision-making authority not to require EIA prior to making a decision to approve a proposal may be subject to legal challenge through the [page 424] principles of judicial review91 by ‘any person’.92 This is because the question of whether a development may significantly affect the environment, or whether it falls within a class of developments that require an EIA, is a threshold test for the application of procedures required by law, not simply a matter of fact.93 The test the court will apply is to ask whether the decision not to require an EIA was ‘manifestly unreasonable’; that is, so unreasonable that no reasonable decision-maker, on the evidence, would have reached such a conclusion. Or, to put it another way, whether the decision was ‘reasonably open’ to the relevant authority to conclude that the proposed activity, if implemented, would not significantly affect the environment. This test has since been applied in a number of cases that have been brought to challenge decisions not to require an EIA pursuant to the provisions of Pt 5 of the Act.94

Determining authority 11.31 The scope of Pt 5 is also affected by the definition of ‘determining authority’ in s 110 of the Act. This term is stated to mean ‘a minister or public authority by or on whose behalf the activity is to be carried out or any minister or public authority whose approval is required in order to enable the

activity to be carried out’. This provision does not apply to Commonwealth authorities,95 nor to some state authorities exercising functions under other legislation.96 Where there is more than one determining authority for an activity, the minister may declare one to be the nominated determining authority in relation to the activity.97 11.32 An EIS must be publicly exhibited, and the determining authority must consider submissions before making a decision whether to carry out the project.98 An assessment report must then be publicly released commenting on the EIS, submissions and any other findings, recommendations or advice given by other parties about the project,99 including full particulars of the decision.100 The determining [page 425] authority may modify, or require modification of, the activity to eliminate or reduce detrimental environmental impacts, or impose conditions for such purpose, without the necessity for further EA.101

State significant development and infrastructure 11.33 The Environmental Planning and Assessment Act 1979 (NSW) (EPAA) Pt 3A, under which state significant projects were formally assessed, has been repealed and replaced with a new system to assess major development projects of state significance.102 The new regime includes two separate pathways known as state significant development (SSD)103 and state significant infrastructure (SSI).104 A State Environmental Planning Policy (State and Regional Development) 2011 has been enacted to identify the types of development that will fall into either category.105 Basically, state significant development comprises categories of designated development that operate at higher thresholds and therefore are likely to have greater environmental impacts and enhanced economic significance. The minister may also declare specified development on specified land to be SSD, but only if the minister has obtained and made publicly available advice from the PAC about the state or regional planning significance of the development.106 The minister may not grant development consent to SSD if it is wholly (but not partly) prohibited by an environmental planning instrument.107 The process for a state significant project (SSD or SSI) is an integrated one where the Director-General coordinates EA of the proposal and only one approval issues. Other relevant public authorities that have separate licensing functions in respect of the project will be consulted by the Director-General so

that they may indicate their requirements for the environmental assessment process.108 Public authorities that may still issue approvals for aspects of a project cannot refuse those approvals if they are [page 426] necessary for carrying out an SSD or SSI authorised by a development consent; and the approval must be consistent with the development consent.109 11.34 SSD and infrastructure will be assessed and evaluated by the Department of Planning and Infrastructure. The Minister for Planning is the consent authority (though in respect of SSD this function may be delegated to the Planning Assessment Commission, the Director-General of Planning (DG), or any public authority).110 An application for SSD and SSI must be accompanied by an EIS,111 which will then be placed on public exhibition for comment.112 However, before preparing an EIS the proponent must obtain the DG’s environmental assessment requirements (DGRs) for the project, which will be set after consultation with other relevant public authorities.113 The applicant may then be required to provide a response to issues raised in those submissions.114 The public is entitled to see the DG’s requirements for EA, submissions made in response to the EIS, and the DG’s evaluation report advising the minister.115 In evaluating an application for an SSD, in order to make a decision, s 79C of the Act applies equally to state significant development as it does to any other Pt 4 application.116 The minister or DG may also refer an application for a SSD or SSI to the Planning Assessment Commission (PAC) for advice or review or to hold a public hearing in relation to the application.117 Where the PAC has held a public hearing in respect of a proposed SSD then no applicant or objector merits appeals are available in relation to the subsequent decision of the minister.118 The minister has determined that a proposal for a SSD will be referred to the PAC if a SSD proposal is not supported by the relevant local council(s), or the department has received more than 25 public [page 427] objections.119 Since a referral to the PAC for a public hearing knocks out both applicant and objector appeals, this is a convenient way of avoiding subsequent merits review of controversial decisions. Applicant and objector appeals are not available for SSI; and applications for judicial review are not available for critical SSI.120 One welcome addition to the process for dealing with SSD and SSI is the

express power given to the minister to require, by conditions of approval or subsequent notice, monitoring and environmental auditing,121 at any time, even after consent has been given for the project.122 Such a power is not available to consent or determining authorities under Pts 4 and 5.

Critical habitat and threatened species 11.35 Additional requirements apply in respect of proposed developments and activities that include critical habitat or are likely to significantly affect threatened species.123 Mandatory criteria for assessing ‘significance’ are contained in s 5A (the ‘seven-part test’).124 An application under Pt 4 of the Act in respect of development on land that is, or is part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities,125 or their habitats, must be accompanied by a species impact statement (SIS),126 unless the DirectorGeneral is satisfied that [page 428] the impact of the activity concerned will be trivial or negligible.127 The submission of a SIS is considered, like the submission of an EIS, to be an essential precondition to the decision-maker exercising its power to determine the application; and any attempt to grant development consent in the absence of a SIS will make the consent invalid.128 11.36 In considering applications for development, as well as exercising other functions, a planning authority must have regard to the register of critical habitat kept by the Director-General under the Threatened Species Conservation Act 1995 (NSW).129 Development consent may not then be granted without the concurrence of the Director-General of National Parks and Wildlife130 or, if a minister is the consent authority, unless the minister administering the Threatened Species Conservation Act has been consulted.131 The Act specifies mandatory considerations for the DirectorGeneral or minister in determining whether concurrence should be given.132 In Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council (2006) 153 LGERA 355 at [55], the court described as ‘curious’, in the light of these mandatory considerations, that the departmental approach was that the consent authority alone had to assess whether the development and associated vegetation loss were justified. As the court said, the Director-General had an important role to exercise in the assessment process, including whether vegetation loss was justified.

11.37 For Pt 5 activities, a determining authority may not grant approval for or carry out activities on land that is critical habitat or likely to significantly affect threatened species, populations or ecological communities, or their habitats, unless a SIS, or an EIS that contains a SIS, has been prepared in accordance with the Threatened Species Conservation Act.133 Determining authorities exercising their functions under Pt 5 [page 429] must have regard to the register of critical habitat134 and to recovery plans and threat abatement plans.135 Where a minister is the determining authority for a threatening activity, the minister administering the Threatened Species Conservation Act must be consulted.136 The minister may be provided with the recommendations of the Director-General of National Parks and Wildlife. Then, if those recommendations are not accepted, the minister must state reasons why they were not accepted.137 If a minister is not the determining authority, then the concurrence of the Director-General or minister administering the Threatened Species Conservation Act is required.138 The Act requires that, in exercising their consultation and concurrence functions, certain criteria must be taken into account by the Director-General and the minister. These are similar to the criteria that planning authorities must consider under Pt 4.139 Requirements relating to the submission of a SIS under both Pts 4 and 5 of the EPAA, and related consultation and concurrence provisions, do not apply where consent is sought under an environmental planning instrument (EPI) that has been biodiversity certified,140 or where a biobanking statement has been issued.141 For projects determined under the provisions for State Significant Development (SSD) and State Significant Infrastructure (SSI), assessment of which is dependent on the requirements issued by the DirectorGeneral rather than any prescribed matters, the minister may nevertheless issue consents requiring participation in the biobanking scheme.142

Content of EIA 11.38 In addition to the general requirements listed in the Regulation as to form and content of an EIS,143 the contents of the assessment for designated, SSD, SSI and [page 430] Pt 5 projects will be governed by the Director-General’s assessment requirements.144 Failure to prepare an EIS in accordance with the statutory

requirements may lead to the invalidity of any subsequent decision taken in relation to the application.145 The content of a SIS is quite specific as to the information required for assessing predicted impacts on threatened species and populations and ecological communities,146 but is also subject to the requirements of the Director-General of National Parks and Wildlife.147

Public review of the EIS 11.39 For designated development under Pt 4 of the Act, the public is entitled to make submissions following mandatory public exhibition of an EIS.148 A submission by way of objection must set out the grounds of the objection.149 The consent authority must forward all public submissions to the Director-General,150 unless the Director-General has waived this provision.151 11.40 Public notification of the making of an EIS or SIS,152 prepared in relation to an activity subject to Pt 5 of the Act, is mandatory.153 Any person may make submissions to the determining authority, and copies of those submissions must be forwarded to the Director-General154 who may subsequently review the EIS and public submissions, and then make a report with recommendations to the determining authority.155 This report must be made public.156 Where the Planning Assessment Commission is to carry out the review and make findings and recommendations, the minister will furnish advice to the determining authority about whether ‘environmental grounds’ would or would not preclude the carrying out of the proposal.157 [page 431] The process for public consultation on projects of state significance has been explained at 11.33

Queensland 11.41 In Queensland,158 EIA takes place both under the planning system, represented by the Sustainable Planning Act 2009 (Qld) (SPA) and also the State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA), and the system for environmental management introduced by the Environmental Protection Act 1994 (Qld) (EPA).

EIA under the planning system

11.42 Under the SPA, EIA does not depend on a discretionary analysis of the potential significance of impacts. The requirement for impact assessment or an environmental impact statement (EIS) is part of the Integrated Development Assessment System (IDAS) established by the former Integrated Planning Act 1997 (Qld) and continued under this Act.159 IDAS is discussed in greater detail at 10.33. Since only assessable development requires a development permit,160 then EIA only applies to assessable development. The assessment may be either by code assessment or impact assessment, or both, as declared by a regulation, a planning scheme161 or other instrument.162 Impact assessment means the assessment, other than code assessment,163 of the environmental effects of proposed development and the ways of dealing with those effects.164 The requirement for an EIS applies only to certain [page 432] types of development prescribed by regulation.165 The Regulation prescribes that only a development that is being assessed under the Commonwealth EPBCA by an accredited assessment process or under a bilateral agreement166 that, in addition, the chief executive determines should be assessed in this way, will be subject to the EIS process.167 11.43 To enable assessment of the application,168 the proponent will give the proposal to the assessment manager and relevant referral agencies.169 The assessment manager170 and each concurrence agency may seek information from the applicant.171 Interestingly, the applicant may determine not to supply part or any of the information requested, in which case the assessment will be undertaken without it.172 This, of course, may impact significantly on the effectiveness and quality of the assessment, and on the ability of the public to respond to the proposal. If the application does require impact assessment, then the public will be given an opportunity to make submissions about the application.173 These submissions, together with the information received from the applicant, and other relevant matters stipulated by the Act,174 will then be used as the basis for impact assessment.175 A proponent of the development to which the EIS process applies176 must apply to the chief executive for terms of reference for the EIS.177 In determining the draft terms of reference178 the chief executive must consult with relevant entities,179 though public consultation is discretionary after considering relevant prescribed criteria.180 Once draft terms have been determined, public notice of the draft terms must be publicly notified and the

public allowed to make written comments about them.181 After taking into account any comments received, the terms will be finalised.182 [page 433] The Regulation also requires that a draft EIS must include the matters mentioned in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Sch 4.183 Public notice of a draft EIS must be given and 30 business days allowed for public submissions.184 After considering all relevant information including public and relevant entity submissions the chief executive may accept the EIS or ask for it to be amended.185 The chief executive will then prepare an assessment report186 that addresses the required criteria187 and hand the report together with the EIS and all submissions to the proponent, assessment manager, referral agencies, and other relevant entities.188 11.44 Ultimately, the final decision made by the assessment manager should not conflict with state planning regulatory provisions or other relevant instruments; unless, in the latter case, this is necessary and can be justified on a range of criteria.189 As Brown and Nitz remark, ‘(I)ntegration of environmental and social information in decision-making will be highly dependent on the skills and commitment of the Assessment Manager and on the quality of the planning scheme’.190 Failure to apply conditions to a project that reflect advice contained in, or extrapolated from, an EIA may amount to a reviewable error of law.191

EIA under the State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) 11.45 Projects that are declared by the Coordinator-General to be ‘coordinated projects’ because of, inter alia, their ‘environmental significance’,192 because of potential environmental, economic or other impacts,193 may be subjected to a more formal process for EIA.194 A proponent may apply for such a declaration, or the Coordinator-General may make a declaration on his or her own initiative.195 As in other jurisdictions where ‘significance’ is a trigger, this, coupled with the fact [page 434] that an EIS is not necessarily mandatory even if the project is declared ‘significant’ (see 11.51 below), leaves a fair measure of discretion in the hands of the Coordinator-General. Unlike other jurisdictions, however, principles of

judicial review are expressed not to apply to decisions of the CoordinatorGeneral under these provisions.196 11.46 An application by a proponent must include an ‘initial advice statement’,197 to provide detailed information about the proposal. This would then enable the Coordinator-General to determine whether to declare the project ‘significant’.198 If the Coordinator-General considers that an EIS should be prepared, the proponent will be informed, the public advised and public comments on the draft terms of reference will be invited and considered.199 The Coordinator-General, however, may make a declaration that an EIS is not required only if satisfied appropriate EA under another Act will be carried out in relation to the project; and the Coordinator-General must not make such a declaration if undertaking the project will result in broad-scale clearing for agricultural purposes.200 To assist in the preparation of the EIS, the Coordinator-General may refer information about the proposal to other entities and ask them for advice and information.201 The EIS will then be prepared by the proponent,202 to the satisfaction of the Coordinator-General, and released for public comment.203 After considering public submissions and other relevant material, the Coordinator-General will make a decision as to whether the draft EIS is to be the final EIS; and if not may ask for additional information about the environmental effects of the project.204 When the draft EIS is accepted as the final EIS, the Coordinator-General will prepare a report evaluating the EIS, stating any conditions, or making recommendations, that will be [page 435] imposed on, or should be required of, the project205 and make the report public.206 Proposed changes must be notified for further EA;207 though the necessity for further public consultation will be at the discretion of the Coordinator-General.208 Criteria for evaluating the proposed changes are set out in the Act;209 and a ‘change report’ must be provided to the proponent and publicly released.210 A lower level of EA, an impact assessment report (IAR) is available where the Coordinator-General is satisfied that the environmental effects of the project do not, having regard to their scale and extent, require assessment through the EIS process.211 Processes for preparing, submitting, evaluating, accepting and publicising an IAR are similar to those required for an EIS.212 11.47 Where the project is to be assessed under the terms of a bilateral agreement or the assessment provisions of the Commonwealth EPBCA, then

the process must comply with Part 4A of the Act. In particular, the EIS must address the matters specified in the regulations.213 This will enable the process to comply with Commonwealth requirements for EA. 11.48 If the project requires development approval, and is either for a material change of use214 or requires impact assessment under the SPA, the Coordinator-General effectively becomes the concurrence agency for the project,215 and may require that the assessment manager refuses the application for development or that certain conditions be placed on it.216 The application can only be refused, however, if the Coordinator-General is satisfied that there are environmental effects in relation to the development that cannot be adequately addressed.217 11.49 If the project involves a proposed lease under the Mineral Resources Act 1989 (Qld), the Coordinator-General’s report may state conditions that must be imposed on the lease. These requirements will override any inconsistency in any [page 436] other conditions attached to the lease,218 except for native title issues.219 Likewise, if the project involves a proposed greenhouse gas injection and storage lease under the Greenhouse Gas Storage Act 2009 (Qld) or proposed geothermal production lease under the Geothermal Energy Act 2010 (Qld) the Coordinator-General’s report may state conditions,220 though this part of the Act is silent about conflicting conditions. 11.50 Where EIA is required under an Act other than the SPA or EPA, an EIS prepared under the SDPWOA is to be taken to satisfy the requirements of that other legislation.221 In this event, the Coordinator-General may only recommend that approval should be refused or conditions imposed.222 This report must then, however, be taken into consideration by the entity giving approval for the project.223 Where there is no other relevant approval the Coordinator-General’s report for the EIS for the project may impose conditions for the undertaking of the project and nominate an entity that is to have jurisdiction for any condition.224 Such conditions are then taken to have been imposed under relevant provisions of the IPA and EPA.225 11.51 Prescribed projects To enable the Coordinator-General to facilitate the undertaking of prescribed projects of economic, environmental or social significance to the state or a region, and to promote the use of voluntary environmental agreements, the minister may declare certain projects to be prescribed projects, including those declared to be significant projects.226 In

deciding to declare a project to be a prescribed project, the minister may have regard to, among other things, the public interest; whether a voluntary environmental agreement is likely to be entered into in relation to the undertaking of the project; and other relevant matters.227 If the minister considers the undertaking of the project is critical or essential for the state for economic, environmental or social reasons, the minister may also declare the project to be a critical infrastructure project.228 [page 437] If the minister intends to declare a project with a capital investment value of not more than $50 million to be a prescribed project, before making the declaration, the minister must give each interested person for the project a written notice that, among other things, states the grounds on which the minister considers the project should be declared a prescribed project and invites the person to give the minister a submission about the proposed declaration.229 Prescribed entities have a duty to cooperate with the Coordinator-General in giving information, documents or other assistance the Coordinator-General requires to assess matters relating to a prescribed project.230 11.52 The Coordinator-General may issue a ‘progression notice’ to a decision-maker requiring the decision-maker to undertake administrative processes required to complete a process, in relation to a prescribed project, required to be undertaken under a law of the state, including, for example, a process in a stage of IDAS (‘prescribed process’).231 The Coordinator-General may also issue a written notice to a decisionmaker for a prescribed decision, requiring the decision-maker to make the decision within the period stated in the notice (a ‘notice to decide’).232 If the prescribed decision relates to an application for a development approval, the notice to decide may be given to the decision-maker only after the decision stage for the application begins.233 With the approval of the minister, the Coordinator-General may give to the decision-maker and applicant for a prescribed decision or a prescribed process a written notice (a ‘step in notice’) advising the decision-maker and applicant that the Coordinator-General is to make an assessment and a decision about the prescribed decision or process.234 The step in notice may be given after a progression notice [page 438] or notice to decide has been issued, or after a prescribed decision is made,

within prescribed periods.235 When the Coordinator-General issues a step in notice, the CoordinatorGeneral becomes the decision-maker for the prescribed decision or process, and must consider a number of matters, including the criteria, if any, for making the prescribed decision under the relevant law for the decision or process.236 The Coordinator-General may then make the decision or undertake the process; send back the decision or process, with or without conditions, to the decision-maker under the relevant law for the decision or process; or otherwise confirm or amend the decision or cancel the decision and substitute a new decision.237 Conditions that may be imposed include conditions requiring the applicant to carry out an activity or works that prevent, control or mitigate detrimental environmental effects that may arise because of the undertaking of the prescribed project; or restore or enhance aspects of the environment that may be affected by the undertaking of the prescribed project to which the decision relates.238 No appeals are possible from the decision of the Coordinator-General.239 11.53 Voluntary agreements The Coordinator-General may also, with the approval of the minister, enter into a voluntary environmental agreement with an applicant for a prescribed decision, or the applicant and another person, about preventing, controlling or mitigating detrimental environmental effects of a prescribed project; or conserving, maintaining, rehabilitating or enhancing aspects of the environment.240 An agreement attaches to the land, and may, for example, provide for financial and technical assistance, and prohibit or restrict certain uses of the land.241 [page 439]

EIA under the Environmental Protection Act 1994 11.54 Applications for approval under the EPA are required for ‘environmentally relevant activities’ (ERAs),242 defined as243 an agricultural ERA;244 a resource activity245 and an activity prescribed by regulation that may release contaminants into the environment that may cause environmental harm.246 Before an environmental authority can be issued for an ERA that is mining or another resource activity; or where an EIS is required for the project under another Commonwealth or state Act,247 and it has been decided or required that this part applies to the preparation of the EIS, or the activity is subject to voluntary preparation of an EIS, then an EIS under this Act is necessary for completion of the assessment process.248 The purpose of the EIS is expressed to be not only to assess the potential

adverse and beneficial environmental, economic and social impacts of the project; and management, monitoring, planning and other measures proposed to minimise any adverse environmental impacts; but also to assist in the preparation of an environmental management plan for the ‘project’,249 a term that is defined also to include a plan or a policy.250 The steps in the process are broadly similar to those that apply under the SDPWOA. This includes public notification of the draft terms of reference, and public scrutiny of the EIS, although, of course, the evaluation of the draft EIS and public comments in this instance will be prepared by the EPA.251 Where the chief executive decides to reject the draft EIS, before it goes out for public notification, the proponent has a choice of resubmitting it, with changes;252 or asking [page 440] the minister for a review.253 Where the chief executive is not satisfied about the adequacy of responses to public submissions, the EIS may be refused permission to proceed; and once again the proponent may then choose either to resubmit it, with alterations, or ask the minister to review the refusal.254 In preparing the assessment report255 addressing the adequacy of the EIS and any management plan for the project, and making recommendations about the suitability of the project and conditions of approval,256 the chief executive must also take into consideration the ‘standard criteria’257 that are specified in Sch 3 of the Act. These are quite extensive and include, for example, the precautionary principle, best practice environmental management (BPEM), and the public interest.258 If an EIS is not otherwise required for the project, the proponent may nevertheless apply to voluntarily submit an EIS.259 Presumably, a proponent would do this if it would assist the project through the approval process. In order to protect the quality of waters entering the Great Barrier Reef, the Act also imposes restrictions on agricultural activities, particularly in relation to over-fertilisation.260 Agricultural ERAs must have an accredited Environmental Risk Management Plan (ERMP) for sugar cane growing or cattle grazing in circumstances prescribed by the Act.261

Australian Capital Territory 11.55 The Planning and Development Act 2007 (ACT) stipulates that an

application for development in the ‘impact track’262 must include an EIS263 unless the application is exempted by the minister.264 The impact track applies to a development proposal, among other things, if the relevant development table states that the impact track applies; if the proposal is of a kind mentioned in Sch 4,265 unless the impact is considered not likely to ‘significant’ adverse environmental impacts;266 if the minister [page 441] so declares it; or if the development would be assessable under the EPBCA but does not require assessment under that Act because of the presence of a bilateral agreement between the Commonwealth and the Australian Capital Territory.267 11.56 Where an application is made to the planning and land authority to carry out development for which an EIS is required, the authority must identify the matters that are to be addressed by the EIS and prepare a written notice of its requirements (the scoping document).268 The proponent will then prepare a draft EIS,269 which will be made available for public consultation and comment.270 One welcome innovation is the power of the authority to direct the proponent to engage a consultant who satisfies criteria selected by the minister to prepare the EIS.271 The EIS will then be revised by the proponent272 and, after the authority is satisfied that the EIS sufficiently addresses the matters raised in the scoping document,273 the EIS will be given to the appropriate minister,274 who may establish an inquiry panel to consider the EIS275 or present it to the Legislative Assembly;276 otherwise, the EIS process is complete.277 In considering an application for development following completion of an EIS, a wide range of considerations must be taken into account, including, of course, the EIS, assessment report and public representations.278

Northern Territory 11.57 The Environmental Assessment Act 1982 (NT) is very similar to the (repealed) Environment Protection (Impact of Proposals) Act 1974 (Cth). An EIS or PER is required for a ‘proposed action’279 that, in the opinion of the minister, could reasonably be considered to be capable of having a significant effect on the environment.280 The procedures for conducting EIA are spelt out in the Administrative Procedures 1984 (NT).281 The procedures contemplate both voluntary and directed referrals of proposals for assessment.282 No

particular criteria are specified to direct the discretion of the minister to call for either an EIS or PER. [page 442] Draft guidelines for the assessment will be prepared by the environment protection division after consultation with relevant advisory bodies, after which they will be released for public comment, and then forwarded to the minister for approval.283 The general content of an EIS or PER is specified in the Administrative Procedures.284 The EIS will then be sent out for departmental and public review,285 although the document or parts of it may be withheld from public review following objections by the proponent.286 The EIS or PER will then be revised by the proponent287 and the final EIS will be used by the minister to make recommendations in respect of the statement.288 This assessment report will be made public.289 While a proposed action is being executed, or after the proposed action has been executed, NT EPA may review and assess the environmental aspects of the proposed action, including, in particular, the effectiveness of the safeguards or standards for the protection of the environment adopted or applied, and the accuracy of the forecasts of the environmental effects of the proposed action. The EPA will then inform the minister of the results of the review and may make comments, suggestions or recommendations concerning safeguards or standards for the protection of the environment in relation to the proposed action and for any future similar proposed actions.290

Victoria 11.58 In Victoria, the Environment Effects Act 1978 (Vic) simply states that an environment effects statement (EES) must be submitted by the proponent to the minister in respect of all public works proposals291 that are declared by the minister as capable of having significant effects292 on the environment.293 Assessment of environment effects is not restricted to solely physical effects, but may incorporate reference to economic and social effects. Although the Act does not define ‘environment’ there is no indication that it would exclude such considerations; and indeed reference to the provisions of [page 443] the legislation and accompanying guidelines suggests that such considerations would be encapsulated within the statutory scheme.294 The minister also may determine that an assessment is necessary, without

any prior referral having been required.295 The referral or assessment of private development proposals, however, cannot be compelled by the minister, but can be by certain other parties. Section 8 of the Act provides that where any person or body is required by any Act or law to make a decision that could have a significant effect on the environment, the person or body required to make the decision may and shall, if so requested by the minister responsible for the administration of the Act or law, seek the advice and assistance of the minister administering the Environment Effects Act.296 If the minister advises the person or body that an environment effects statement should be prepared, the works shall be deemed to be works to which this Act applies.297 In practice, where the minister considers that because of the low to moderate level of potential impact of the project on the environment, the opportunity for mitigation of this impact, the extent of investigation and consultation already undertaken, and the potential for further consideration through the planning process, the ultimate decision may be that an EES is not be required.298 The minister may be satisfied that the planning process will adequately address impacts,299 but may, nevertheless, in deciding that an EES is not required, place qualifications on the denial that certain impacts will be dealt with satisfactorily in the planning process; and these concerns may then guide the decision-maker, including the Victorian Civil and Administrative Tribunal (VCAT).300 [page 444] 11.59 The guidelines require public advertisement of a draft outline of the proposed contents of an EES (referred to as ‘draft scoping requirements’) and allow a period of at least 15 business days for public comments.301 The guidelines also contain detailed information about the content of an EES and the information that is necessary to ensure the adequacy of an EES for public exhibition.302 An EES must be placed on public exhibition for a period of 20– 30 business days, though the minister may alter this period,303 after which the proponent must either amend the EES or rebut criticism of it.304 The minister must then advise the decision-maker on the environmental ramifications of the project and any conditions that should be attached to an approval.305 Relevant decision-makers are required to consider the minister’s assessment; in fact, the minister may direct that no decision should be made until the minister gives advice,306 although the minister’s recommendations are not binding on the decision-maker.307

South Australia 11.60 In South Australia,308 the Development Act 1993 (SA) s 46 empowers the minister to require an EIS for any proposed development or project of major social, economic or environmental importance (‘major development’).309 The EA requirements may be applied to developments needing approval under the Development Act, to projects that require authorisation under other legislation, to Crown development and public infrastructure,310 and to development for the provision of electricity infrastructure.311 11.61 The term ‘development’ is defined by the Development Act s 4 to include building work; a change in the use of land; the division of an allotment; the construction of roads except by the Crown, a council or other public authority; the creation of fortifications; prescribed mining operations; certain acts in relation to state and local heritage places; tree-damaging activities in relation to significant trees; and any act or activity declared by regulation312 to be development. There is no definition of the term ‘project’; however, the guidelines state that the term ‘project’ refers to any proposal [page 445] that involves activities that are not included in the definition of ‘development’.313 The guidelines also give examples of factors that may trigger assessment. 11.62 A development or project may be considered to be of major environmental, social or economic importance due to the fact that the cumulative effect of the development or project, when considered in conjunction with any other development, project or activity already being undertaken or carried on, or proposed to be undertaken or carried on, at or within the vicinity of the relevant site, gives rise to issues of major environmental, social or economic importance.314 The Development Regulations 1993 Sch 22 prescribes certain activities as ‘activities of major environmental significance’. Since the term ‘significance’ is being used as a synonym for ‘importance’, then such activities should be regarded as being of major environmental importance.315 11.63 Where a development or project is declared to be subject to the EIA process, the proponent will need to lodge with the minister an application or project proposal.316 Assessment will be by either an environmental impact statement (EIS), public environmental report (PER) or development report (DR).317

An EIS would include a detailed description and analysis of a wide range of issues relevant to a development or project, and incorporate significant information to assist in an assessment of environmental, social or economic effects associated with the development or project and the means by which those effects can be managed.318 11.64 A PER is a report on a development or project that includes a detailed description and analysis of a limited number of issues, and a description and analysis of other issues relevant to the development or project; or a description and analysis of a wide range of issues relevant to the development or project where a considerable amount of relevant information is already generally available, and incorporates information to assist in an assessment of environmental, social or economic effects associated with the development or project and the means by which those effects can be managed.319 A DR is a report that includes a description and analysis of general issues relevant to a development and the means by which those issues can be addressed.320 [page 446] 11.65 In considering which level of assessment to apply to a development or a project the Development Assessment Commission must take into account the criteria prescribed in the Regulations.321 The EIA process will be carried out by the Development Assessment Commission,322 which will prepare guidelines for the development or project, after consultation with prescribed entities.323 Where a prescribed activity of environmental significance is involved (defined in Environment Protection Act 1993 (SA) Sch 1), then consultation with the EPA is required.324 The guidelines are advertised by the minister as being available for public inspection.325 11.66 Broad requirements for the content of an EIS, PER and DR are set out in the legislation.326 Public review of an EIS and PER for a period not less than 30 business days; and DR (15 business days) is obligatory.327 An EIS, PER and DR must also be given to a range of relevant entities, including local councils, and to such other authorities or bodies as the minister thinks fit.328 The EIA will not be considered to be complete until the proponent has provided a written response to matters raised in public and agency submissions;329 though preparation of a response to a DR is discretionary.330

The general content of the subsequent assessment report, which must be made public,331 is set out in the legislation.332 The minister may also require a person who is undertaking, or who has the benefit of, such a development or project to carry out specified tests and monitoring relevant to the development or project, and to make specified reports to the minister on the results of the tests and monitoring; or to comply with the requirements of an audit program specified by the minister to the satisfaction of the minister.333 The minister may also, after giving notice, cause such tests and monitoring to be carried out.334 [page 447] A person must comply with the notice and provide reasonable assistance to facilitate the testing or monitoring specified in the notice.335 11.67 Special provision is made in relation to mining operations by the Development Act Pt 8. Various mining production tenements that may be granted under the Mining Act 1971 (SA), Opal Mining Act 1995 (SA), the Petroleum Act 1940 (SA), the Petroleum (Submerged Lands) Act 1982 (SA) and the Offshore Minerals Act 2000 (SA) may be required by the minister administering the Development Act 1993 (SA) or the minister administering the relevant mining legislation to undergo EIA where operations to be conducted in pursuance of a mining production tenement are of major social, economic or environmental importance.336 The minister may only exercise the powers otherwise conferred on the Development Assessment Commission in relation to public environmental reports if the minister considers that the outcome of the environment impact assessment processes under the relevant Mining Act will not be equivalent (or superior) to the outcome that can be achieved if a public environmental report is prepared; and if the appropriate authority and the minister cannot agree in a specific case on an exercise of powers under this Act in relation to public environmental reports then the matter must be referred to the Governor.337

Western Australia 11.68 In Western Australia, EIA applies to ‘significant proposals’338 and ‘strategic proposals’. A significant proposal means a proposal likely, if implemented, to have a significant effect on the environment.339 The term ‘significant effect’ would not encompass a proposal that aims to preserve the

environment in its existing state or the adoption of which would facilitate no more than could be done under existing legislation.340 A proposal is a strategic proposal if and to the extent to which it identifies a future proposal that will be a significant proposal; or future proposals likely, if implemented in combination with each other, to have a significant effect on the environment.341 [page 448] 11.69 In Roe v Director General, Dept of Environment and Conservation for the State of Western Australia [2011] WASCA 57, the question arose whether a permit granted to Woodside Petroleum to clear not more than 25 ha of native vegetation for the purpose of onshore geotechnical and hydrological investigations, undertaken for the purpose of planning the possible development of a liquefied natural gas project, was unlawful. The Environmental Protection Act 1986 (WA) s 51F relevantly provided that: (1) If an application for a clearing permit made under s 51E(1) is related to a proposal which has been referred to the Authority under s 38, the CEO shall not perform any duty imposed on the CEO by s 51E(5): (a) while any decision-making authority is precluded by s 41 from making any decision which could have the effect of causing or allowing that proposal to be implemented.

The Minister for State Development referred the gas project under s 38 of the Act and the EPA categorised it as a strategic proposal. The plaintiff claimed that the proposal should have been referred to the EPA as a significant proposal; and that the clearing permit was invalid by reason of s 51F. The court held that the EPA’s characterisation of the proposal as a strategic proposal was correct. The proposal that had been referred was essentially a proposal that would enable the identification of an area to be designated and set aside for possible use as a multi-user gas hub precinct at some time in the future. The proposal to designate an area of land for possible future use as a precinct, and to investigate the environmental impact of such a use, was not a proposal that, if implemented, would be likely to have a significant effect on the environment. In any case, even if a ‘significant’ proposal had been referred to the EPA, the court said that a sensible and purposive construction of s 51F required the clearing permit to be related to a proposal that had been referred to the EPA in such a way that the grant of the permit could have the effect of causing or allowing the proposal to be implemented, before the constraint imposed by the section applied. On the hypothetical assumption that there was a significant proposal before the EPA for the construction of a multi-user gas processing precinct, the grant of the clearing permit sought by Woodside could not have had the effect of causing or allowing that proposal to be implemented, and would not therefore have

been relevantly ‘related to’ such a proposal to enliven the constraint imposed by s 51F. 11.70 The term ‘proposal’342 is defined by the Environmental Protection Act 1986 (WA) s 3(1) to mean a ‘project, plan,343 program,344 policy, operation, undertaking or development or change in land use, or amendment of any of the foregoing, but does not include scheme’. A draft proposal may be a proposal for this purpose but a plan that is no more than a recommendation may not be sufficiently well developed to [page 449] be termed a proposal.345 As the Act expressly binds the Crown,346 it is clear that both public and private development fall within its terms. 11.71 While a proposal is being assessed, the authority may consent to the proponent changing the proposal without a revised proposal being referred to the authority under this Part, if the authority considers that the change is unlikely to significantly increase any impact that the proposal may have on the environment.347 Approvals (including clearing permits, works approvals and licences) are also able to be granted for projects that are being assessed by the EPA so long as the EPA has consented to the approvals being issued. Previously, approvals could not be issued until the assessment had been completed. The Act provides that referrals for a determination as to the need for EIA must be made where a proposal appears likely, if implemented, to have a significant effect on the environment,348 or is a proposal of a prescribed class.349 A proposal may also be referred if it appears to the minister that there is public concern about the likely effect of the proposal, if implemented, on the environment.350 The EPA is required to assess the need for a proponent to undertake an ‘environmental review’ based on information submitted in or with the referral,351 or derived from the authority’s own investigations.352 A decision-making authority cannot make a decision that would allow a proposal to be implemented on a referred application until the EPA has decided whether it will require EA.353 11.72 The proponent may request the EPA to declare a referred proposal as a ‘derived proposal’.354 The authority must declare the referred proposal to be a ‘derived proposal’ if it considers that: (a) the referred proposal was identified in a strategic proposal that has already been assessed (the ‘strategic proposal’); and (b) after a report on the strategic proposal was published under s 44(3), it

was agreed or decided under s 45 that the referred proposal could be implemented, or could be implemented subject to conditions and procedures agreed or decided under that section.355 [page 450] The authority, however, may refuse to declare the referred proposal to be a derived proposal if it considers that: (a) environmental issues raised by the proposal were not adequately assessed when the strategic proposal was assessed; (b) there is significant new or additional information that justifies the reassessment of the issues raised by the proposal; or (c) there has been a significant change in the relevant environmental factors since the strategic proposal was assessed.356 11.73 The proponent must be informed within 28 days whether or not the EPA intends to assess the proposal,357 although this does not mean that should this provision not be complied with the proposal could not therefore be assessed. Such a conclusion would effectively preclude the EPA from assessing a proposal that might have far-reaching consequences, which could not have been the intention of the legislature.358 11.74 The primary purpose of EIA for the proponent is to demonstrate how the proposal, including mitigation and any offsets of the potential impacts, can meet the EPA’s environmental objectives. 359 11.75 There are two levels of assessment: assessment on proponent information (API) or public environmental report (PER).360 Public review is at the discretion of the EPA.361 Assessment by API will not involve further public comment and may not require any additional documentation to be prepared.362 It will be applied where the acceptability or unacceptability of a project is apparent at the referral stage. If further documents are required, the EPA will first issue scoping guidelines to the proponent. Assessment by PER will apply where further public comment and/or substantial new assessment is needed.363 This will involve a 4- to 12-week public comment period depending on the complexity of the proposal. PER assessment will normally require an Environmental Scoping Document (ESD), to be prepared by the EPA in more simple cases, and the proponent in other cases, which will not normally be open to public comment; and then a PER prepared in accordance with principles of ESD, which is then advertised

for public comment. A PER document will need to address ‘cumulative impacts’, defined to include the environmental impacts of reasonably foreseeable future proposals, and will also usually need to include draft environmental [page 451] management plans. The EPA will summarise the public submissions and inform the proponent, who may be required to respond to submissions.364 The EPA may seek comment from proponents and key decision-making agencies (but not the public) on the desirability and practicality of proposed conditions before publishing its report.365 The EPA must then prepare an assessment report for the minister that includes recommendations for implementation of the proposal.366 These provisions also apply to strategic assessments and derived proposals.367 Strategic assessments will normally be set at the level of PER. There will no longer be any right for the public or a proponent to appeal a decision that a proposal is a derived proposal which has already been assessed under a strategic proposal and therefore does not need further assessment. 11.76 Changes to a proposal after the minister has issued a statement that the proposal may be implemented may only be made where the minister considers that the changes are unlikely to have a significant detrimental effect on the environment that is different from or additional to the effect of the original proposal.368 The authority may initiate a public inquiry, with the approval of the minister, to assist in the assessment of a proposal that is very complex and of intense public interest or such other reason determined by the authority.369 There are no appeal rights against a decision of the EPA not to assess a proposal or against a decision of the authority as to the level of assessment of a proposal.370

Tasmania 11.77 In Tasmania, any environmentally relevant activity (an activity that may cause environmental harm)371 to be undertaken by the public or private sector372 may be subject to formal EIA. Level 1 activities (those activities for which a permit is required under the Land Use Planning and Approvals Act 1993 (Tas), but excluding level 2 and level 3 activities),373 will not be required to undertake formal assessment, unless the director, EPA requires the

proposal to be referred to the Board of the Environment Protection Authority and the board determines that an assessment must be [page 452] undertaken.374 The director has similar powers to require referral to the board of any other proposed environmentally relevant activity for which a permit is not required, and assessment must be undertaken unless the board determines that the activity will not result in environmental harm.375 11.78 Level 2 activities (those activities listed in the Environmental Management and Pollution Control Act 1994 (Tas) Sch 2) will undergo assessment, unless the board determines that it does not need to assess the activity, or unless the application is for a use or development that is ancillary to an existing level 2 activity and that no serious or material environmental harm is likely to result from the proposal.376 Level 3 activities are projects of state significance declared under the State Policies and Projects Act 1993 (Tas) s 18(2). Level 3 activities may be required to undertake an ‘integrated assessment’ under s 20(1) of that Act.377 An order for integrated assessment can be made where a project possesses at least two of a number of attributes specified in the Environmental Management and Pollution Control Act 1994 (Tas) s 16, including significant capital investment, significant consequential economic impacts, significant impact on the environment and significant infrastructure requirements. 11.79 The Minister for Environment determines terms of reference for integrated assessment of projects of state significance.378 The content of other assessments is determined by consultation between the proponent, the assessing authority and the Director of Public Health.379 Consultation with the public at this stage is not specifically provided for and lies within the discretion of the assessing authority. The level of assessment that may be required is to be appropriate to the degree of significance of the proposed environmentally relevant activity to the environment and the likely public interest in the proposal.380 With respect to any integrated assessment required under the State Policies and Projects Act 1993 (Tas) for projects of state significance,381 the Tasmanian Planning Commission (TPC) must undertake the required assessment in accordance with such directions as may be given by the minister and approved by parliament.382 11.80 In relation to environmentally relevant activities, the legislation requires that an opportunity for public consultation be provided before

assessment is complete.383 It obliges an assessing authority to publicly disclose all information relating to [page 453] environmental impacts, except where there is a legitimate commercial, national security or environmental reason for confidentiality.384 Otherwise, the precise nature of the public consultation procedures is entirely discretionary. For major projects undergoing integrated assessment, a public exhibition period of not less than 28 days is required.385 The project must also be referred to the local council in which the project is located and to all government agencies that have an interest in the project.386 The TPC must report to the Minister advising on whether the project should proceed and on what conditions.387 11.81 There is no provision for revision of an EIS prepared for an environmentally relevant activity under the Environmental Management and Pollution Control Act 1994 (Tas), but in relation to major projects undergoing integrated assessment, the TPC may modify a draft report to take into account public comments, and submit the modified report to another round of public review.388 Environmental impact statements are also required for the preparation of marine farming development plans under the Marine Farming Planning Act 1995 (Tas).389

Projects of regional significance 11.82 A project is eligible to be declared to be a project of regional significance390 if the project is of regional planning significance,391 requires high-level assessment392 or the project would have a significant environmental impact. A project may be proposed by a person or a planning authority; and is to be accompanied by a statement of intent for the project containing prescribed information and such other information, as requested by the minister, that is reasonably necessary to enable the minister to determine whether or not to declare a project to be a project of regional significance.393 [page 454] The Tasmanian Planning Commission (TPC) must issue guidelines, not inconsistent with the Act, as to the matters to which the minister must have regard in determining whether to declare a project to be a project of regional significance.394 A person must not undertake on land a use or development

that forms part of a project of regional significance on the land, except under and in accordance with a special permit.395 11.83 Where a project is declared to be a project of regional significance, the project must be referred to the director, EPA, including the statement of intent and any other information requested by the minister.396 The director must then determine whether to refer the project to the Board of the Environment Protection Authority to undertake an EIA of the project under the provisions of the Environmental Management and Pollution Control Act 1994 (Tas).397 On completion of an EIA, the board must inform the Development Assessment Panel whether it requires any conditions or restrictions to be contained in any special permit that may be granted in relation to the project; or whether it is directing the panel to refuse to grant a special permit in relation to the project, and the reasons for its decision.398 11.84 Following a declaration of a project as a project of regional significance, the panel must issue guidelines for the assessment of the project that state the matters to be addressed in the project impact statement in relation to the project, and to which the panel must have regard in assessing whether to grant a special permit in relation to the project.399 The proponent must then provide to the panel a project impact statement in relation to the project that addresses the matters set out in the assessment guidelines.400 If the board is undertaking an EIS, the project statement must also be provided to the director,401 together with any further information requested of prescribed persons and entities by the panel to enable it to make a decision about whether to issue a special permit, with conditions or restrictions.402 The proposal, together with the assessment guidelines and project impact statement, must then be placed on public exhibition for a prescribed period to allow the public and prescribed persons and entities to make [page 455] representations to the panel about the project.403 After the period of public exhibition ends, the panel must hold hearings about the project; although a hearing may be dispensed with if, after examining the representations received, the panel is satisfied that all the representations are in support of the project; or the panel has consulted with a person who made the representation and that person has advised the panel in writing that he or she does not wish to attend a hearing.404 11.85 After the end of the consultation period, and following EIA, if any,

the panel may decide, within the prescribed periods, and after considering any representations received in relation to the project and other prescribed matters, whether to grant or refuse a special permit.405 Prescribed persons and entities, and persons who made representations about the project, are entitled to receive notice about any proposed conditions or restrictions on a special permit; and may object to the panel about the proposed conditions or restrictions, and suggest any other conditions or restrictions that the person thinks ought to be specified on the proposed special permit.406 As soon as practicable after a special permit is granted in relation to a project, the TPC must, in consultation with the relevant planning authority, amend any planning scheme (other than an interim planning scheme) or any special planning order that applies to the land on which the project is to be situated, so as to remove any inconsistency between the permit and the planning scheme or special planning order.407

Adequacy of EIA 11.86 Since the purpose of EIA is to adequately inform decision-making, a decision that relies on an inadequate EA may be declared to be legally of no effect. The standing of a complainant to challenge the adequacy of EIA, and grounds on which to engage in a review of any aspect of the EA process, are discussed in Chapters 19–21. Whether EIA is adequate will depend on, first, compliance with any requirements spelt out by the legislation and regulations that govern the content of EIA, and second, whether all relevant factors, including those identified by legislation, have [page 456] been dealt with in a reasonable manner. Whether an EIS meets mandatory legislative requirements is a matter of substance rather than form.408 11.87 The judicial standard for preparation of an EIS was set early on by Cripps J, in Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402. An EIS will meet the standards imposed by legislation if it is comprehensive in its treatment of the subject matter, objective in its approach, and alerts decision-makers and others to the effect of the activity on the environment and the consequences to the community inherent in carrying out or not carrying out the activity.409 To do this, the EIS must be sufficiently specific to direct a reasonably intelligent and informed mind to

the possible or potential environmental consequences of carrying out or not carrying out the activity. It must be written in understandable language and contain material that would alert laypersons and specialists to problems inherent in carrying out the activity.410 The standard, however, is not one of absolute perfection.411 There must be imported into the statutory obligation a concept of reasonableness and practicality.412 The fact that an EIS does not explore every avenue advocated by experts or cover every possible alternative, but only sets out what the proponent considers feasible, will not necessarily invalidate it.413 An EIS does not fail to comply with the statutory requirements simply because the proposal could be seen as part of a wider activity that the EIS fails to consider, so long as the proposal formulated in the EIS is not thereby a sham, as being in effect a cover for a quite different type of development.414 For example, the failure of an EIS to consider the effects of logging activities in an area was not a ground for rejecting an EIS based on a proposal to carry out road-making activities and associated [page 457] works.415 Any proposal to log, of course, could itself be subject to the EIS process at a later date. 11.88 Whether an EIS is adequate to assess site-specific impacts or whether a broader approach is sufficient is a question of fact in every case.416 However, consideration of a development application will almost invariably involve consideration of matters external to the development site; for example, consideration of noise and vibration problems likely to be caused to residents along a railway line by coal trains passing along the line to and from a coal loader.417 Further, in considering feasible alternatives to the project, a proponent is not required to indicate alternatives that are feasible in fact, but which are either not known to the proponent or which are bona fide regarded by the proponent as quite unfeasible.418 Substantial compliance without being over technical or astute to find fault is the appropriate test.419 Changes to a proposal after exhibition of an EIS but before final approval has been given will not invalidate the legitimacy of the EIS unless the changes result in a completely different proposal.420 11.89 Although the Prineas case went ultimately to the Court of Appeal for a resolution, it is the comments of Cripps J in the Land and Environment

Court,421 supported by the Court of Appeal, which have become the oft-cited benchmark against which to test the legality of an EIS: An obvious purpose of the environmental impact statement is to bring matters to the attention of members of the public, the Department of Environment and Planning and to the determining authority in order that the environmental consequences of a proposed activity can be properly understood. In order to secure these objects the environmental impact statement must be sufficiently specific to direct a reasonably intelligent and informed mind to the possible or potential environmental

[page 458] consequences of the carrying out or not carrying out of that activity. It should be written in understandable language and should contain material which would alert lay persons and specialists to problems inherent in the carrying out of the activity. I do not think the obligation in s 111, that is, to take into account ‘to the fullest extent possible all matters affecting or likely to affect the environment’ imposes on a determining authority when preparing an environmental impact statement a standard of absolute perfection or a standard of compliance measured by no consideration other than whether it is possible in fact to carry out the investigation. I do not think the legislature directed determining authorities to ignore such matters as money, time, manpower, etc. In my opinion, there must be imported into the statutory obligation a concept of reasonableness. Clearly enough, the legislature wished to eliminate the possibility of a superficial, subjective or non-informative environmental impact statement and any statement meeting that description would not comply with the provisions of the Act, with the result that any final decision would be a nullity. But, in my opinion, provided an environmental impact statement is comprehensive in its treatment of the subject matter, objective in its approach and meets the requirement that it alerts the decision maker and members of the public and the Department of Environment and Planning to the effect of the activity on the environment and the consequences to the community inherent in the carrying out or not carrying out of the activity, it meets the standards imposed by the regulations. The fact that the environmental impact statement does not cover every topic and explore every avenue advocated by experts does not necessarily invalidate it or require a finding that it does not substantially comply with the statute and the regulations. In matters of scientific assessment it must be doubtful whether an environmental impact statement, as a matter of practical reality, would ever address every aspect of the problem. There will be always some expert prepared to deny adequacy of treatment to it and to point to its shortcomings or deficiencies … I am prepared to express the opinion, however, that had the environmental impact statement failed substantially to comply with the regulations, that relevantly would have been a breach of the Act. It was conceded that if no environmental impact statement were prepared, that would be a breach of the Act. I can see no difference in principle between the failure to prepare an environmental impact statement at all and the failure to prepare one which substantially complies.

11.90 It seems, however, that the test of substantial compliance can still be satisfied even though an EIS wrongly omits material required by the regulation. In Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86, Bignold J held that, despite an EIS having omitted to consider noise and vibration problems as required by the regulation, the omission was not so significant in relation to the content of the EIS, and the function of the EIS in the decision-making process, as to invalidate the whole of the EIS:

‘(V)iewed globally the EIS passes the test of substantial compliance’.422 Similar considerations have been held to apply to the requirements of the DirectorGeneral in relation to content of an EIS.423 [page 459] Preston’s424 attempt to draw out of the existing case law some guide as to what the courts may or may not regard as adequate in an EIS still provides a useful ‘check-list’ of factors to be considered: First, and most importantly, the omission must be examined to determine whether it renders nugatory the purposes of the Act. In respect of environmental impact assessment, the purposes include: those specified in s 5 of the Environmental Planning and Assessment Act; assisting the consent or determining authority to fulfil its task of making a fully informed and well-considered decision by having before it the relevant facts and circumstances and views of the public who are opposed to the proposed project; and providing members of the public with the opportunity to exercise their statutory rights of objection and appeal. Second, in order to achieve the purposes of the Act, the EIS should: be sufficiently specific to direct a reasonable, intelligent and informed mind to the possible or potential environmental consequences of the carrying out or not carrying out of the proposed development or activity; be written in understandable language; be comprehensive, although not necessarily exhaustive, in its treatment of the subject matter and contain sufficient information to alert lay persons and specialists to problems inherent in the carrying out of the proposed development or activity; be complete on its face, that is to say, the full body of knowledge which is needed to make a decision or which is necessary for the public to comment, must be contained within the statement; be objective, but not necessarily subjectively impartial; and fully explain its analysis and reasoning.

It can be seen from the above summary that the courts have taken what may be termed a ‘broad-brush’ approach to the question of adequacy; that is, once the EIS has passed the first test by including each of the mandated matters, the courts have broadened their focus to look at the statement as a whole in order to apply the second test. The courts will not be overly concerned by omissions of particular facts or details providing there is overall compliance with the above guides. Failure to draw up an adequate EIS may also lead ultimately to an offence being committed because of reliance on inadequate evaluations in the EIS. For example, in Chief Executive of the Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 an EIS prepared for and reviewed by Ausgrid

mistakenly stated that relevant works were not expected to impact on any Aboriginal objects. An Aboriginal rock carving was subsequently damaged by a contractor employed by Ausgrid who was unaware of the presence of the rock carving. Ausgrid was subsequently successfully prosecuted for an offence of harming or desecrating an Aboriginal object, contrary to s 86 of the National Parks and Wildlife Act 1974 (NSW) (NPWA). [page 460]

Review of environmental aspects of proposals 11.91 In some jurisdictions, a proponent is under a statutory obligation to keep the environmental aspects of a proposal under constant review in case further EIA, or modification of consent conditions on a current EIS is required. Review may take place during the developmental phase of a project. Monitoring of environmental impacts and accuracy of forecasts may also be required once the proposal is complete or operating. While other jurisdictions have not made legislative provision for monitoring of environmental aspects of proposals, monitoring may be included as a condition of development consent. 11.92 The Northern Territory procedures require a proponent to keep under review environmental aspects of proposals that were not required to submit an EIS or PER. If these appear likely to be materially different from those originally expected, the proponent must inform the minister or department and, if the proposed action has not been completed, the minister will then determine whether more formal assessment is necessary.425 Where a proposed action has been completed, the department is empowered to review and assess environmental aspects, in particular the effectiveness of safeguards or standards applied and the accuracy of forecasts.426 11.93 In South Australia, review of a proposal may lead to amendment of an EIS. If the amendment to the EIS would significantly affect the original proposal, a further period of public review might result in amendment of the assessment report, and, once that report has been amended, a third period of public review.427 More commonly, review and monitoring may lead to modification of a proposal by way of changes to the conditions under which the proposal is permitted to operate or proceed.428 11.94 In Western Australia, monitoring is intended to identify non-

compliance with project approvals,429 as well as the suitability of conditions that have been imposed. The Minister for Environment may order a review of conditions, following which conditions may be changed, or a new EIA process required.430 Monitoring and auditing may also be included as a condition on approvals.431 Major projects that undergo integrated assessment also frequently have monitoring included as part of the conditions under which the project is allowed to proceed.432 [page 461] Environment protection legislation also generally permits the conditions under which a project or activity is proceeding to be changed if circumstances require.433

Appeals against EIA requirements 11.95 Except in Western Australia and Tasmania, there are no general rights to appeal a decision to require or not to require an EIA. In Western Australia, appeals lie to the Minister for Environment against decisions of the EPA not to assess a proposal, against decisions relating to the level of assessment, and against the content of, and recommendations contained in, the assessment report.434 The minister may remit the proposal to the EPA for reassessment.435 In Tasmania, rights of appeal are limited to decisions of the Board of Environmental Management in respect of assessment of level 2 activities that do not require a planning permit.436

Common criticisms of EIA 11.96 During the 40 or so years for which government regulatory agencies have been using EIA techniques to evaluate foreseeable environmental impacts of development, certain issues with the process have come to light.437 This was inevitable given that proponents, responsible authorities and objectors all had to learn to live with and use EIA techniques. While it was the feeling of many commentators some 10 to 20 years ago that the content and quality of EIA had not improved much during the previous 20 years, and that major deficiencies in the process still remained,438 it is arguable now that constant practice has at least led to clear acceptance and recognition of the need for EIA, and achieved, for the most part, recognisable standards for implementing the EIA process. Space does not permit an exhaustive

discussion of issues or solutions here, but an outline of the sorts of issues that have commonly arisen is certainly warranted.

Preparation of the EIS by the proponent 11.97 One of the most oft-repeated criticisms made of the EIA process is that the EIA documentation will be prepared by, or on behalf of, persons having the greatest stake in the acceptance of the proposal. If the proponent does not prepare the statement, then that responsibility will be delegated to a firm of engineering or environmental consultants who would naturally be expected to assess the environmental impact of [page 462] the proposal in terms that would reflect as favourably as possible the interests of their clients.439 It is claimed that this relationship will inevitably lead to aspects of a project that are detrimental to the environment being omitted or glossed over by superficial study and glib assurances. Forty years ago, Douglas J denounced this practice in Life of the Land v Brinegar (1973) 414 US 1052: It seems to me a total frustration of the entire purpose of NEPA440 to entrust evaluation of the environmental factors to a firm with a multi-million dollar stake in the approval of this project. NEPA embodies the belated national recognition that we have been ‘brought to the brink’ by myopic pursuit of technological progress and by a decision-making mechanism resting largely on the advice of vested interest groups. We have listened as the manufacturing-industrial complex advised us on the desirability of fueling ‘progress’ by stripping our land and using our rivers, lakes and atmosphere as technological sewers. We have allowed commercial recreational interests to determine the advisability of ‘developing’ our dwindling wilderness. Those who measure national advancement by GNP and the Dow Jones industrial average are not advocates of the interests of mountains, forests, streams, rivers, oceans and coral beds or of the wildlife that inhabit them or the people who enjoy them. They are not useful when it comes to appraising the values of an unspoiled meadow or glacier or reef … [T]he final say on these environmental matters should not be under the direct or indirect control of those who plan to make millions out of their destruction.

11.98 Since then, of course, proponents, consultants and assessors have built up a greater body of experience in undertaking environmental assessments, but problems remain. Stewart,441 for example, pointed out: … [the] relationship between the scientist as an environmental consultant and the developer can be a major cause for concern. The duty of scientists is to be objective in the presentation of facts. Nevertheless, the old adage that ‘he who pays the piper calls the tune’ has some relevance. The brief which the consultant is given may severely limit the scope of a technical investigation and editing of the subsequent report may alter its thrust. Prominent consulting firms often subcontract to specialists, such as ecologists, who actually conduct the field studies. Successive drafts of a report may pass through many hands, and the final version may reach conclusions

which were not those of the person who did the original work in the field. Such dilution of responsibility is contrary to normal scientific practice.

This criticism has some validity. Coupled with the tendency not to publish the results of investigations or other data that are regarded as confidential to a client, it has mitigated not only against the establishment of some sort of tradition or precedent [page 463] governing the conduct of consultants, but also much duplication of effort. Data that could have been made publicly available has been suppressed because it has been gathered in the course of private investigation. Further, accreditation of consultants that undertake EIA is still not a feature of legislation in Australia so quality control is not exercised by government. An exception is the requirement in the Australian Capital Territory that the Planning and Land Authority must be satisfied that a person engaged as a consultant holds relevant professional qualifications in relation to the preparation of environmental impact statements and has experience in the preparation of environmental impact statements, or at least the capacity to prepare them.442 11.99 Such criticisms demonstrate that adequate scoping of the issues to be addressed by an EA is vital. They show that there must be adequate and recognised standards of professionalism applied to assessments, which must include monitoring the results, and that data which is gathered for the purpose, or in the course, of gaining governmental approvals for projects should be regarded as public property, unless the proponent can make out a case for confidentiality. If the proponent is not to prepare the EIS, however, then what are the alternatives? A statutorily appointed, independent agency? Consultants appointed by the assessing agency but paid for by the proponent? A list of accredited consultants from which the proponent may choose? Formby has argued that: [W]hen a proposal is contentious, important and complex, it is too much to expect the proponent-based EIS to produce a satisfactory result. The proponent’s perspective will be too biased, and made more so by the surrounding conflict, to present an adequate review of the complexities of the issues and the alternatives. In such cases a public environmental inquiry can better clarify the issues and present recommendations.443

While public inquiries tend to have gone out of favour, referral to independent panels or commissions has certainly become a feature of significant or controversial projects.444

[page 464] It is of course arguable that since it is the proponent’s scheme that is being assessed, and the proponent is paying for it, then the proponent should at least be able to choose who is to undertake the assessment. This does point, of course, to the necessity then for a strong, well-resourced and professionally competent bureaucracy to evaluate the report to ensure that the statement prepared is balanced, honest and reasonable. Resourcing is certainly a prime reason why deflecting proposals for major development to integrated assessment by a state agency may be argued to be preferable to leaving projects to be assessed by local government; resources available to state agencies are unlikely to be matched by individual local councils. Professionalism, experience and expertise are also arguments that support the importance of public, as well as agency, appraisal of a draft report, with ultimate recourse to a specialist tribunal that may judge the adequacy of any EIS honestly disputed on reasonable grounds.

EIA comes too late in the decision-making process 11.100 The criticism has been made that one of the limitations of the EIA process is that EA often commences after too many decisions have already been made. Douglas J first described this in United States v Students Challenging Regulatory Agency Procedure (SCRAP) (1973) 412 US 669 at 714, as the practice of authorities ‘to decide first what they want to do and then prepare an impact statement as an “apologia” for what they have done’. While attitudes to EA have improved over the years, there is no doubt that there is still a great temptation for some proponents to undertake and complete economic and technical feasibility studies first without spending money to ascertain what the environmental impacts might be, in the hope that local and state decision-making authorities, and politicians, will be drawn into support by the economic aspects of the proposal. There is still a tendency, albeit dwindling, to regard environmental requirements as an unwelcome addition to the costs of a project, to be postponed for as long as possible, rather than as an inherent feature of the project, evaluation of which must be commenced as soon as the project is a serious proposition. The ‘EIS hurdle’ approach, in fact, sometimes backfires on proponents who find that, in order to meet environmental criteria, a complete technical and thus economic reappraisal of the project becomes necessary. The problem is further compounded by government agencies or ministers that are only too

willing to give wholehearted support to a project in principle following only economic and technical evaluation.445 The pressure is then on the environmental protection assessment authority not to delay the project too much by making ‘unreasonable’ demands. Nevertheless, it is also clear that, in recent years, assessment of environmental impacts has been introduced at much earlier stages of policymaking and planning through more use being made of strategic assessment before projects are put forward; and that EA is being more closely aligned with management of natural resources, not just development on land. Nevertheless, perhaps inevitably, EIS reports put forward by proponents use a variety [page 465] of economic modelling techniques to ‘sell’ their projects while minimising predictions of potential environmental impacts. 11.101 Economic tools for project assessment such as cost–benefit or benefit–cost analysis (CBA or BCA), input–output modelling (IO) and computable general equilibrium modelling (CGE) are well known to traditional economists. Non-market valuation methods, such as choice modelling, are also sometimes used. EIA frequently predicts economic benefits of proposals using these tools; but in practice, most stakeholders analysing an EIS within a limited timeframe neither have the expertise nor the time to interpret them. In Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48 the Land and Environment Court of NSW analysed the economic modelling conducted on behalf of the respondents and accepted by government and concluded (at [450–453]): For the reasons which follow, I am not satisfied that the economic analyses provided on behalf of Warkworth support the conclusion urged by both Warkworth and the Minister, namely that the economic benefits of the Project outweigh the environmental, social and other costs. The IO analysis is a limited form of economic analysis, assessing the incremental difference in economic impacts between approving or disapproving the extension of the Warkworth mine. The deficiencies in the data and assumptions used affect the reliability of the conclusions as to the net economic benefits of approval. More fundamentally, however, the IO analysis does not assist in weighting the economic factors relative to the various environmental and social factors, or in balancing the economic, social and environmental factors. The weighting and balancing of the relevant matters to be considered are essential tasks for an approval authority when exercising its statutory power to determine a project application. The BCA, and the Choice Modelling on which the BCA depends, are also deficient. They do not consider all of the relevant matters that need to be considered by an approval authority in determining a project application, the relevant matters at the level of particularity required, or in accordance with the factual findings and inferences I have made in relation to the relevant

matters. The Choice Modelling study, which provides the values for the non-market benefits and costs, was deficient in limiting the survey respondents to residents of New South Wales, and providing inaccurate, indiscriminate and uninformative information to survey respondents which affected their choices and values. The BCA also cannot displace the tasks of the approval authority to weight and balance all of the relevant matters so as to determine whether the preferable decision is to approve or disapprove of the project application. At best, the two forms of economic analysis provided, the BCA and the IO, provide some information about some of the relevant matters that are to be considered in the ultimate task of weighting and balancing in determining whether or not the Project should be approved.

This proposal had been granted development consent by the New South Wales Planning Assessment Commission. The criticisms levelled at the economic assessment by the court go beyond mere differences of opinion; they highlight the legal obligations of a decision-maker in evaluating the economic data. [page 466] 11.102 It is also important, where alternative sites or methods of production are feasible, that EIA begins before the proponent is committed to one particular site or method of operation, otherwise this makes a nonsense of any direction to consider alternatives. On the other hand, the proponent must be allowed to choose a preferred site or mode of operation and evaluate it, without being required to assess in equal detail every possible option. A reasonable balance has to be struck when considering alternatives and, here again, this points to the need for independent judicial or quasi-judicial assessment in the event of dispute.

Public participation 11.103 EIA procedures that do not give sufficient weight to the principle and value of public comment risk suspicion and hostility towards their activities and decisions.446 Both proponents and opponents of projects are, however, guilty of playing the ‘numbers’ game. Opponents frequently produce stereotyped ‘objections’ for mass distribution and encourage supporters to send them to the assessing authority. Proponents are apt to refer disparagingly to the small number of objectors, dismissing them as ‘minority groups’ or ‘greenies’. In truth, the number of submissions in respect of an application is quite irrelevant. It is the quality of argument that counts, or ought to count. 11.104 If public representation is to be encouraged, and is to be meaningful, the quality of information supplied about a project is crucial. EIA cannot work properly where adequate short- and long-term research projects are not undertaken or encouraged by government agencies into the

environmental effects of the activities they are supposed to be regulating. Neither can a bureaucratic hold on, or monopoly of, information be allowed to frustrate full and frank public disclosure of knowledge already held, but which agencies are unwilling to release.447 11.105 It is equally important that submissions made by the public should be seen to be taken into account in the decision-making process, and that public rights and expectations so created may be protected if necessary by recourse to a tribunal or court of law. Where the necessity to conduct EA of development proposals is recognised by legislatures as an integral part of moving towards a process of ESD,448 those vitally interested in ensuring that environmental assessments are objectively and honestly carried out should not be denied the right to test that issue before an independent and impartial umpire. This right of review becomes increasingly important in the face of criticism that governments are finding themselves increasingly unable to say [page 467] ‘no’ to projects where time and money have been expended by proponents, with the result that the EIA process is becoming simply a review as to how to minimise environmental effects rather than to consider whether the project is desirable or warranted.449 Yet in New South Wales all appeal rights are removed where SSD is sent to PAC for a public hearing.450 The theory that, having had a public hearing, another before a court is not necessary, is a hollow excuse for locking out public review of government decision-making. The nature of a hearing before the PAC is vitally different to a hearing before a court of law.451 Participation in the form of comment on a draft EIS is of only limited value: by that time both proponents and regulators may have become effectively locked into various aspects of the proposal. 11.106 Another important aspect of public participation is that, if the desire to seek public comment is genuine, and not, as is sometimes, token, then the EIA documentation must be arranged and written in a reasonably intelligible form and style.452 Many EIA reports are unnecessarily longwinded and repetitive, and often seek to dazzle the reader with science in order to discourage any adverse ‘uninformed’ public comment. Technical detail is, of course, necessary for the proper evaluation of most projects, but there would seem to be no reason why the technical details could not be better explained, or, failing that, why a shorter, more concise statement could not be issued for public comment, with technical and scientific data included as a separate document or appendix. It is seldom the case that the longer and more

verbose a statement, the more exhaustive it will be of the proponents’ obligations. Nor is it likely to proffer a sounder justification for proceeding with the project.

Time and cost factors 11.107 A common criticism from proponents of development projects is that preparation of an EIS delays implementation of the project, and delays, as well as EIA, cost money. This criticism may, in part, stem from an unstated desire to return to a situation where EIA was unheard of, and an unwillingness to accept that EA is as much a part of project development as economic and technical assessment. Since the alternative may be to subject the environment and people to quite unacceptable risk of harm, then time spent in environmental evaluation is not wasted. It is impossible, of course, to say how long the EIA process should take. The obvious answer is that it should take as long as is necessary to adequately evaluate foreseeable environmental [page 468] impacts. This process should not be subject to hurried assessment simply because EIA was not undertaken sufficiently early in the process. Neither is it acceptable to speed up the process by curtailing public review or agency assessment. Delays, of course, are most often occasioned not in the EIA process itself but in any political decision-making that may follow. In general, however, it would be true to say that the EIA process for a major development would take at least a year, and quite probably two to three years, to complete, simply because to predict environmental impacts adequately, tests may need to be conducted through the full range of climatic and seasonal variations; and data and potential impacts may have to be debated back and forth between the proponent and all interested government agencies. However, where environmental investigations run parallel with technical and economic assessment, there is no reason why this period should be considered a delay at all. The moral is that close cooperation with the assessment agencies from the earliest investigations will ensure the smooth passage of the project through the EIA process.

Post-decision monitoring and management 11.108 One of the failures of most EIA systems relates to a lack of post-

decision monitoring to assess whether controls are adequate or predictions correct. Only in Western Australia has post-EIA monitoring traditionally been accorded any notable priority, though elsewhere some monitoring may take place through agencies with a specific interest in the operation of the development, such as pollution control authorities. The introduction of formal reporting and auditing mechanisms under the EPBCA453 does seem to be having a positive effect and may provide a lead for other jurisdictions. It is essential that the government authority that grants consent to a project must not only be able to monitor compliance with conditions of that consent, but also be able to monitor whether compliance is in fact achieving the desired results, and be prepared to modify consents if necessary to achieve those results or indeed to react to unforeseen events (adaptive management). Only public complaint or criticism may eventually bring to the attention of decision-makers problems that have arisen after the event, and evidence of these problems may then be used in future assessments to argue for the imposition of different or stricter controls. Yet monitoring of predictions is obviously essential if anything is to be learned from the EIA process and if mistakes are to be identified and avoided. This was recognised long ago,454 but it has taken a long time for ‘adaptive management’ to be formally recognised and written into project approvals.455 [page 469] Monitoring and auditing is not a common feature of legislative requirements for development; but it is becoming more a feature of conditions of consent, though implementation and enforcement of these conditions will still demand significant agency resources.456

Conclusion 11.109 While no one would dare to suggest that EIA as a science can guarantee absolutely that all the environmental effects of a project will be identified, evaluated, catalogued, monitored and dealt with, and while no one can guarantee the competency of those who undertake the preparation and assessment of EIA, effective procedures can undoubtedly minimise the risk of an inadequately prepared EIS. An effective EIA system should encourage professional competency in the preparation, assessment, reporting, storage and retrieval of data. It should maximise the ability to receive input from as many sources as possible, display a genuine commitment to public participation, provide an avenue for redress of inadequately prepared

statements, and enable modification of proposals that, through appropriate processes for monitoring and assessment of predictions and impacts, do not appear to be delivering sustainable outcomes. The progress of projects from conception to fruition and operation will be assisted if local communities and interest groups are adequately consulted at the earliest stages of a project and kept informed as the project progresses and commences operations. Failure to consult and involve invariably results in anger, frustration and resentment. This in turn will make it more difficult to adequately communicate as the project progresses457 and during its operation. It is true that while a proper consultative process may result in heightened opposition to a project, opposition based on information is legitimate, while support based on ignorance is not.

1.

Subject to any provisions set out in legislation, in its ordinary meaning, ‘environment’ signifies that which surrounds, and has long been understood to include ‘the conditions under which any person or thing lives’: see R v Murphy (1990) 71 LGRA 1 at 6–7, per Mason CJ, Brennan, Deane, Gaudron, McHugh JJ. The term environment is discussed further at 7.14.

2.

See ANZECC discussion paper, ‘A National Approach to Environmental Impact Assessment’, AGPS, October, 1991. See also ‘Principles of Environmental Assessment Best Practice’, International Association for Impact Assessment ().

3.

See generally Raff, ‘Ten Principles of Quality in Environmental Impact Assessment’ (1997) 14 EPLJ 207. For the theory and practice of EIA see particularly Elliot and Thomas, Environmental Impact Assessment in Australia, 5th ed, Federation Press, Sydney, 2009; and Thomas Murfitt, Environmental Management: Processes and Practices for Australia, 2nd ed, Federation Press, Sydney, 2011.

4.

See Marsden ‘Strategic Environmental Assessment in Australian Land-use Planning’ (2013) 30 EPLJ 422. Note also the criticism directed by Stewart in ‘Environmental Risk Assessment: The Divergent Methodologies of Economists, Lawyers and Scientists’ (1993) 10 EPLJ 10, that environmental assessment is applied to development control but not to the environmental management of large tracts of agricultural land where the environmental consequences of ‘development’ can be far more significant. Protection of good-quality agricultural land has since become a matter for strategic policy development: see 9.65. Strategic environmental assessment of planning schemes and in the preparation of environmental management plans was discussed in Chapter 9.

5.

Though in New South Wales fisheries activities have been formally captured by EIA processes under the planning legislation: Environmental Planning and Assessment Act 1979 (NSW) (EPAA) Pt 5 Div 5.

6.

For example, Threatened Species Conservation Act 1995 (NSW) Pt 7AA (biodiversity certification of planning instruments); and see further 14.98, Forestry and National Park Estate Act 1998 (NSW) s 36 (exclusion of Pt 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA), environmental assessment); Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 84; Environmental Protection Act 1986 (WA) s 39B.

7.

Water Management Act 2000 (NSW); Natural Resources Management Act 2004 (SA) Ch 7.

8.

Environmental assessment processes under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) will not apply to forestry operations undertaken under a Regional Forest Agreement (except for world heritage or international wetlands): EPBCA ss 38 and 42; Regional Forest Agreements Act 2002 (Cth) s 6.

9.

Threatened Species Conservation Act 1995 (NSW) Pt 7 Div 5; and see further 14.98.

10. Though note the caution expressed in Thornton v Adelaide Hills Council (2006) 151 LGERA 1 about the use of scientific modelling to predict environmental impacts. 11. Fowler, ‘Legislative Bases for Environmental Impact Assessment’ (1985) 2 EPLJ 200. 12. Planning and Development Act 2007 (ACT); Environmental Planning and Assessment Act 1979 (NSW) (EPAA); Sustainable Planning Act 2009 (Qld); State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA); Development Act 1993 (SA). 13. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA); Environmental Protection Act 1994 (Qld); Environmental Protection Act 1986 (WA); Environmental Management and Pollution Control Act 1994 (Tas). 14. Environmental Assessment Act 1982 (NT).

15. Environment Effects Act 1978 (Vic). 16. For example, Environment Protection and Biodiversity Conservation Regulations 2000 (Cth); EPBCA Policy Statement: Significant Impact Guidelines: Matters of National Environmental Significance (2009); EPBCA Policy Statement: Significant Impact Guidelines: Actions On, or Impacting Upon, Commonwealth Land and Actions by Commonwealth Agencies (2010); Dept of Environment and Heritage Protection (Qld), The Environmental Impact Statement (EIS) Process for Level 1 Mining Projects (2012); Planning SA, Guide to the Assessment of Major Developments or Projects (2002); Planning SA, Guide to the Assessment of Crown Development and Public Infrastructure (2002); Department of Primary Industries and Water (Tas), Environmental Impact Assessment: A Guide for Level 2 Activities; General Guidelines for the Preparation of a Development Proposal and Environmental Management Plan for Level 2 Activities (2005); Department of Sustainability and Environment (Vic), Ministerial Guidelines for Assessment of Environmental Effects under the Environmental Effects Act 1978 (2006); Minister for Planning (Vic), Major Transport Projects Facilitation Act 2009: Project Proposal Guidelines (2010); Environmental Protection Authority (WA), EIA Administrative Procedures (2012); Guidance Statements for the Assessment of Environmental Factors (WA) . 17. Environmental Planning and Assessment Regulation 2000 (NSW) s 228. 18. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 68 (proponents), 69 (state or territory), 71 (Commonwealth agency); Environmental Assessment Administrative Procedures 1984 (NT) cll 4 and 6 (designation by the authority responsible for a proposed action of a proponent, who is then required to supply information to the minister) (made under Environmental Assessment Act 1982 (NT) s 7); Environment Effects Act 1978 (Vic) s 8 (referral to the minister by any person or body required by any Act or law to make a decision that could have a significant effect on the environment); Environmental Protection Act 1986 (WA) s 38(1), (2) (proposal may be referred to the Environmental Protection Authority by the proponent, any person except for a proposal under an assessed scheme) or the Minister for the Environment (decision-making authorities involved with a proposal shall refer a proposal if they consider it likely to have a significant effect on the environment or is of a prescribed class). If the environmental issues raised by a proposal were assessed in any assessment of an assessed scheme under the Act, and the proposal complies with the assessed scheme and any conditions to which the assessed scheme is subject, then the responsible authority need not refer the proposal to the authority: s 48I. In the Australian Capital Territory, a proponent may apply to the relevant agency for an environmental significance opinion that the proposal should be assessed in the merit track rather than the impact track: Planning and Development Act 2005 (ACT) s 138AA. 19. In Western Australia, there is also a unique provision for the maintenance of a public register of all referrals that are made to the Environmental Protection Authority: Environmental Protection Act 1986 (WA) s 39. All referrals under the Commonwealth legislation are required to be published on the internet: Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 74(3). 20. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 70 and 74A; Environmental Assessment Administrative Procedures 1984 (NT) cl 7 (minister may call for a report where one has not been submitted and the minister is of the opinion that the matter may be a proposed action); Sustainable Planning Act 2009 (Qld) s 690 (a proponent of development to which the requirements apply, as set out in the Sustainable Planning Regulation 2009 (Qld) reg 32, must apply to the chief executive for terms of reference for an EIS); Environmental Management and Pollution Control Act 1994 (Tas) ss 24(1) and 27(2) (director may require referral of level 1 activities, and level 2 activities that do not require planning permission), ss 25(1), 27(1) (level 2 activities that require planning permission must be referred to board), 26 (level 3 activities may be required to undergo integrated assessment under State Policies and Projects Act 1993 (Tas) ss 16 and 18(2)); Environment Effects Act 1978 (Vic) s 8(2), (4) (minister may direct any decision-maker

to refer a decision that may have significant effect on the environment for advice of the minister); Environmental Protection Act 1986 (WA) s 38(5), (5a), (5c), (5e) (Environmental Protection Authority may require a proponent or relevant decision-making authority to refer an environmentally significant proposal that has come to the notice of the authority but that has not been referred to). 21. See Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 78A(8)(a) (designated development), s 112; State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) ss 26 and 29 (declaration of significant project); Development Act 1993 (SA) s 46 (major development or project); Environment Effects Act 1978 (Vic) ss 3 and 4(1) (public works); Environmental Protection Act 1986 (WA) s 38(5) (proposal of a prescribed class). The Environmental Protection Regulations 1987 (WA) reg 2C states that a discharge of waste, or emission of noise, odour or electromagnetic radiation, into the environment is a proposal of a prescribed class. 22. For example, Environmental Planning and Assessment Regulation 2000 (NSW) regs 25, 54, 60 and 67, Sch 1; Sustainable Planning Act 2009 (Qld) s 278; Environmental Protection Act 1986 (WA) s 38A; Planning and Development Act 2005 (ACT) s 138AB. 23. See 5.73. 24. See, for example, Environmental Planning and Assessment Regulation 2000 (NSW) Sch 3; Development Act 1993 (SA) Sch 22; Environmental Management and Pollution Control Act 1994 (Tas) Sch 2. 25. Though see Sustainable Planning Regulation 2009 (Qld) Schs 3 and 24 (native vegetation clearance assessable development). 26. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 75 (controlled action); Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 112; Planning and Development Act 2007 (ACT) s 124; Environmental Protection Act 1986 (WA) s 38; Environment Effects Act 1978 (Vic) s 3; Environmental Protection Act 1994 (Qld) ss 162, 310E and 310V; State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) ss 26, 27, 29 (significant projects for which EIS required); Sustainable Planning Regulation 2009 (Qld) reg 33. 27. The Planning and Development Act 2007 (ACT) s 124A, unusually, gives a statutory definition of ‘significance’. An adverse environmental impact is ‘significant’ if: (a) the environmental function, system, value or entity that might be adversely impacted by a proposed development is significant; or (b) the cumulative or incremental effect of a proposed development might contribute to a substantial adverse impact on an environmental function, system, value or entity. In deciding whether an adverse environmental impact is ‘significant’, the following matters must be taken into account: (a) the kind, size, frequency, intensity, scope and length of time of the impact; (b) the sensitivity, resilience and rarity of the environmental function, system, value or entity likely to be affected. See also Environmental Impact Assessment Administrative Guidelines 2010 (WA) Pt 7 (concept of significance). 28. For example, Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Sch 4; Environmental Planning and Assessment Regulation 2000 (NSW) Sch 2. 29. For example, Planning and Development Act 2007 (ACT) ss 212–215. 30. For example, Sustainable Planning Regulation 2009 (Qld) reg 34.

For example, Development Act 1993 (SA) s 48(4); State Policies and Projects Act 1993 (Tas) s 31. 19(2); Environment Effects Act 1978 (Vic) ss 4(1), 6(2) and 8(2); Environmental Protection Act 1986 (WA) s 41(2)(d). 32. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 74AA. 33. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 107; Planning and Development Act (ACT) ss 228–233; Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 23D (functions of Planning Assessment Commission (PAC)); Environmental Assessment Act 1982 (NT) s 10; State Policies and Projects Act 1993 (Tas) s 20; Environment Effects Act 1978 (Vic) s 9(1); Department of Sustainability and Environment (Vic), Ministerial Guidelines for Assessment of Environmental Effects under the Environmental Effects Act 1978, Melbourne, 2006, p 25; Environmental Protection Act 1986 (WA) s 40(2)(c). 34. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 107; Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 114; Environmental Assessment Act 1982 (NT) s 10; State Policies and Projects Act 1993 (Tas) s 20(3); Environment Effects Act 1978 (Vic) s 9(1); Environmental Protection Act 1986 (WA) s 40(2)(c). 35. See also 11.86. 36. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 96A and 101A; Planning and Development Act 2007 (ACT) s 216; Environmental Planning and Assessment Regulation 2000 (NSW) Sch 2; Threatened Species Conservation Act 1995 (NSW) s 111; Environmental Assessment Administrative Procedures 1984 (NT) cl 8(2)(a); Sustainable Planning Act 2009 (Qld) s 690; Environmental Protection Act 1994 (Qld) ss 41–46; Coordinator-General, Premier’s Department, Impact Assessment in Queensland — Policies and Administrative Arrangements, Brisbane, 1987, at 3.3; Development Act 1993 (SA) s 46B(4); Environmental Management and Pollution Control Act 1994 (Tas) s 74(3)–(5); State Policies and Projects Act 1993 (Tas) s 20(3); Department of Sustainability and Environment (Vic), Ministerial Guidelines for Assessment of Environmental Effects under the Environmental Effects Act 1978, Melbourne, 2006, pp 14–20; Environmental Impact Assessment Administrative Procedures 2010 (WA) Pt 5. 37. For example, Planning and Development Regulation 2008 (ACT) reg 50; Environmental Planning and Assessment Regulation 2000 (NSW) Sch 2 Pt 3. 38. Parliamentary Hansard, House of Representatives, 26 November 1974, p 4082. 39. An evaluation or assessment report is usually required where the minister is the consent authority and the EIS is being assessed by a government department or other appointed body: see, for example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 113(5), 114 and 115ZA; Environmental Protection Act 1986 (WA) s 44. It may also be required of any assessing authority or decision-maker: see, for example, Planning and Development Act 2007 (ACT) s 225A; Sustainable Planning Act 2009 (Qld) ss 697–700. 40. AGC (Advances) Ltd v Roads and Traffic Authority of New South Wales (1993) 30 NSWLR 391 per Priestley JA at 397, per Cripps JA at 399. 41. Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 at 417–18 per Cripps J; Randwick Municipal Council v Woodward (1983) 50 LGRA 55; Jarasius v Forestry Commission of New South Wales (No 1) (1988) 71 LGRA 79 at 96, 98–9 per Hemmings J; Liverpool City Council v Roads and Traffic Authority of New South Wales (1991) 74 LGRA 265 at 278 per Cripps J; Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 32 per Pearlman J. 42. For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 136; Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 80(7). 43. See, for example, Byron Shire Businesses for the Future Inc v Byron Shire Council (1994) 84 LGERA 434; Friends of South West Rocks Inc v Machro Pty Ltd (2004) 136 LGERA 198. 44. See 10.12.

45. Under Pt 5, the person proposing to carry out the activity: s 110(1). A determining authority (that is, the minister or public authority whose approval is required to carry out the activity or by whom or on whose behalf the activity is to carried out (s 110(1)) may also be the proponent of an activity. For example, the Forestry Commission s 110B(1)(a)), or as otherwise declared: s 110B(1)(b). In this case, the minister administering the EPA Act will become the determining authority instead of the proponent and the activity may not be carried out until approved by the minister: s 115A. Similar provision is made for state-owned corporations: State Owned Corporations Act 1989 (NSW) s 37A(4), (5). Where there is more than one possible determining authority, the minister may nominate one to be the determining authority: s 110A. 46. Section 78A(8)(a). 47. Section 112(1). 48. As defined in the Threatened Species Conservation Act 1995 (NSW) and Fisheries Management Act 1994 (NSW). 49. EPA Act ss 78A(8)(b) and 112(1B). These requirements, which thus apply to both Pt 4 developments and Pt 5 activities, are discussed further at 11.35. 50. Section 29. In practice, State Environmental Planning Policies (see 9.44) frequently declare various types of development to be designated development, but only rarely does this occur in local environmental plans. For an exception, see Severn Shire Council v Water Resources Commission (1982) 47 LGRA 257. 51. See, for example, Hastings Municipal Council v Mineral Deposits Ltd [1981] 1 NSWLR 310 (proposal to sand-mine two areas over which mineral leases were held required application for consent, accompanied by an environmental impact statement). 52. See, for example, Wellfare v Sutherland Shire Council (1983) 49 LGRA 395 (proposal for approval of a 10-berth addition to an existing 53-berth marina constituted ‘designated development’). 53. For example, because it is claimed the activity itself is not covered by the schedule; or because it is covered but is only ancillary to a use that is not covered: see Director-General of the Department of Land and Water Conservation v Bailey (2003) 128 LGERA 1; Evans v Maclean Shire Council (2003) 138 LGERA 229; Miltonbrook Managements Pty Ltd v Shellharbour City Council (2004) 134 LGERA 1; Toner Design Pty Ltd v Newcastle City Council [2013] NSWCA 410 (proposed treatment and storage of contaminated soil not ancillary to unit development). In SJ Connelly CPP Pty Ltd v Ballina Shire Council [2010] NSWLEC 128, the court held that one-off deposition of material at a nominated location that does not involve any form of processing of material is not ‘designated development’ within the meaning of EPAA Regulation 2000 Sch 3 Pt 1 cl 19 ‘extractive industries’. An ‘industry’ denotes commercial activities carried on by industrial processes — a concept that carries with it a notion of continuity of process not a ‘one-off’ application. 54. Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; effectively overruling the Land and Environment Court decisions in Momentum Architects Pty Ltd v Hornsby Shire Council (2002) 123 LGERA 207; Logan-Bald Partnership v Byron Shire Council (2002) 123 LGERA 225; Hynes Urban Planners Pty Ltd v Hawkesbury City Council (2003) 123 LGERA 312. 55. Environmental Planning and Assessment Regulation 2000 (NSW) Sch 3 Pt 2 cll 35 and 36. See also Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48. 56. Helman v Byron Shire Council (1995) 87 LGERA 349; Building Recyclers Investments Pty Ltd v Marrickville Council (2003) 131 LGERA 413; Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360. See Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48. 57. As to ‘prescribed persons’, see s 116B and Environmental Planning and Assessment Regulation 2000 (NSW) reg 226; includes a public authority (but not a council), public utility, university or

TAFE institution. 58. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 116C. 59. Characterisation of a proposal as an activity is a jurisdictional fact (see 22.44); Gales Holdings Pty Ltd v Tweed Shire Council (1999) 110 LGERA 235. 60. Section 110. No prescribed activity or activity of a prescribed kind has been declared under the Act. 61. Sections 110(1) and 110E. Part 5 may also be excluded by the provisions of other legislation, either expressly, for example Forestry and National Park Estate Act 1998 (NSW) s 36; or impliedly, for example Roads Act 1993 (NSW) s 88: see Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231. In Oshlack v Rous Water [2011] NSWLEC 73, Biscoe J distinguished his own judgment in Parks and Playgrounds, which involved an approval to carry out tree lopping under the Roads Act 1993 (NSW) s 88, from a direction in this case requiring fluoridation of a local water supply. Biscoe J held that although s 111 would, as in Parks and Playgrounds, apply to the issue of an approval, and also to a direction, in this case, s 112 (requirement for EIA) was not applicable where a direction had been given. 62. Defined in s 110 as a minister or public authority by or on whose behalf the activity is or is to be carried out or whose approval is required in order to enable the activity to be carried out. In Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453; 66 ALJR 821; 79 LGERA 241; 109 ALR 321, the High Court held that the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) applied only to authorities and ministers of New South Wales and not to Commonwealth authorities or ministers. Part 5 of the Act did not apply to the Federal Airports Corporation, an authority of the Commonwealth established by the Federal Airports Corporation Act 1986 (Cth). In a subsequent decision arising out of the same project (the Sydney airport third runway), a majority of the Court of Appeal of New South Wales considered that the Maritime Services Board of New South Wales was not a ‘determining authority’ by virtue of it obtaining a benefit from dredging work undertaken by the Federal Airports Corporation. The work was not being carried out ‘on behalf of’ the board within the meaning of s 110. 63. This obligation arises irrespective of whether an environmental impact assessment has been required by the determining authority: see Drummoyne Municipal Council v Roads and Traffic Authority of New South Wales (1989) 67 LGRA 155; Bailey v Forestry Commission of New South Wales (1989) 67 LGRA 200; Rundle v Tweed Shire Council (1989) 68 LGRA 308. 64. See also City of Botany Bay v New South Wales Land and Housing Corporation [2010] NSWLEC 160. 65. Section 112. ‘Consideration’ must comply with the legal standards discussed at 22.54 and following. 66. Guthega Development Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353; 61 LGRA 401 (CA). 67. National Parks Association of New South Wales v Minister for the Environment (unreported, NSWLEC, 19 June 1992). 68. Evans v Forestry Commission of New South Wales (1982) 48 LGRA 266; Kivi v Forestry Commission of New South Wales (1982) 47 LGRA 38; Bailey v Forestry Commission of New South Wales (1989) 67 LGRA 200; Jarasius v Forestry Commission of New South Wales (No 1) (1988) 71 LGRA 79. Failure to comply with Pt 5 can lead to breach of contract in respect of any logging agreements that have been concluded with private operators: see Upper Hunter Timbers Pty Ltd v Forestry Commission of New South Wales [2001] NSWCA 64. Note however that Pt 5 does not now apply to integrated forestry operations approved under the Forestry Act 2012 (NSW): see s 69W. 69. Sustainable Fishing and Tourism Inc v Minister for Fisheries (2000) 106 LGERA 322. The environmental assessment of fishing activities is now governed by the EPAA Pt 5 Div 5. In Professional Fishers Association Inc v Minister for Fisheries (2002) 120 LGERA 61, it was held that a

notice of closure of a commercial fishery issued under the Fisheries Management Act 1994 (NSW) s 8 did not fall within the terms of the EPAA Pt 5 Div 5. 70. Oshlack v Rous Water [2011] NSWLEC 73. 71. Protection of the Environment Administration Act 1991 (NSW) s 12A. The inclusion of s 12A rendered moot an appeal on this point to the New South Wales Court of Appeal against the decision of the Land and Environment Court in Brown v Environment Protection Authority & North Broken Hill Ltd (No 2) (1992) 78 LGERA 119, where Pearlman J held that a licensed discharge of waste from a pulp and paper mill into a river was not an ‘activity’ for the purposes of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) Pt 5. 72. See 8.53. 73. See Vaughan-Taylor v David Mitchell-Melcamn Pty Ltd and Minister for Minerals and Energy (1991) 73 LGRA 366. 74. For planning system circulars see . 75. Per Kirby ACJ in North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442. Adopted by Lloyd J in Carstens v Pittwater Council (1999) 111 LGERA 1 at 24. 76. Environmental Planning and Assessment Regulations 2000 cl 228. 77. Section 5A. This seven-part test includes whether critical habitat will be affected, whether the proposal is a threatening process, whether the life cycles of species are likely to be disrupted to such an extent as to threaten their viability, and whether known habitats are likely to be isolated or removed. Note that a positive answer to any one or more of these seven factors does not necessarily mean that there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats; and equally does not preclude a negative answer to this question: Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 at [61]; Plumb v Penrith City Council [2002] NSWLEC 223 at [36]; Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 at [83]; Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48 at [86]. 78. Plumb v Penrith City Council [2002] NSWLEC 223 at [37]; BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 at [12]; Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121 at [52]. 79. Drummoyne Municipal Council v Roads and Traffic Authority of New South Wales (1989) 67 LGRA 155 at 163 per Stein J. 80. Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 at 233; Plumb v Penrith City Council [2002] NSWLEC 223 at [22(1)]; Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121 at [52]; Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48 at [84]. 81. Central West Environment Council Inc v Orange City Council (2003) 128 LGERA 169. 82. Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 at 233; Plumb v Penrith City Council [2002] NSWLEC 223 at [22(1)]; Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121 at [52]; Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 at [78]. 83. Jarasius v Forestry Commission of New South Wales (No 1) (1988) 71 LGRA 79; Bailey v Forestry Commission of New South Wales (1989) 67 LGRA 200. 84. Jarasius v Forestry Commission of New South Wales (No 1) (1988) 71 LGRA 79 (NSWLEC), Hemmings J at 94; Bailey v Forestry Commission of New South Wales (1989) 67 LGRA 200 (NSWLEC), Hemmings J at 212. 85. Kivi v Forestry Commission of New South Wales (1982) 47 LGRA 37.

Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 5A(2)(b) (viable local 86. population); 5A(2)(c) (local occurrence); 5A(2)(d)(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). And see, for example, Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48. 87. For a discussion of this case, see Boer, ‘Forestry Commission Brought to Heel’ (1988) 5 EPLJ 165. 88. See also Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38. Although these cases were concerned with whether a species impact statement should have been produced under s 78A(8)(b) of the Act, this principle is equally applicable to activities under s 112: see s 112(1B), 112(4). Ideally, the proponent should incorporate ameliorative measures into the proposal as environmental assessment progresses: see Eastlakes Golf Club v Botany Bay City Council [2006] NSWLEC 343. 89. Jarasius v Forestry Commission of New South Wales (No 1) (1988) 71 LGRA 79 at 92; Drummoyne Municipal Council v Roads and Traffic Authority of New South Wales (1989) 67 LGRA 155; Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10 at [190]–[208]; Milne v Minister for Planning (No 2) [2007] NSWLEC 66 at [22]–[29]. It is questionable, however, whether an activity that has only a minor impact on the natural environment but significant social or economic effects would require an environmental impact statement: see Preston, ‘The Environmental Impact Statement Threshold Test: When is an Activity Likely to Significantly Affect the Environment?’ (1990) 7 EPLJ 147 at 158. 90. Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136. 91. See further Chapter 22. 92. Section 123. 93. See further 22.44. 94. See, for example, Leichhardt Municipal Council v Maritime Services Board of New South Wales (1985) 57 LGRA 169; Jarasius v Forestry Commission of New South Wales (No 1) (1988) 71 LGRA 79; Bailey v Forestry Commission of New South Wales (1989) 67 LGRA 200; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186; Byron Shire Businesses for the Future Inc v Byron Council [1994] NSWLEC 159. 95. Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453; Citizens Airport Environment Association Inc v Maritime Services Board (1993) 114 ALR 473. 96. Protection of the Environment Administration Act 1991 (NSW) s 12A; Threatened Species Conservation Act 1995 (NSW) ss 99 and 113B; Fisheries Management Act 1994 (NSW) s 221B; National Parks and Wildlife Act 1974 (NSW) (NPWA) ss 120 and 132C; Rural Fires Act 1997 (NSW) s 96. 97. Section 110A. 98. Section 113. 99. For consultation and concurrence requirements, see ss 112B–112E. Determining authorities must also have regard to recovery plans and threat abatement plans: s 112A. The minister may request the PAC to review environmental aspects of the proposal (ss 23D(1)(b)(iv) and 112(1)(d)) and its findings must be taken into account: s 114. The minister may also give advice: s 114. 100. Section 113(5); Environmental Planning and Assessment Regulation 2000 reg 243. 101. Sections 112(4) and 110E(a). A modification is effectively any change that falls short of a radical transformation of the original proposal: Transport Action Group Against Motorways v Roads and Traffic Authority (1999) 104 LGERA 133; [1999] NSWCA 196. Even though a modification may trigger a new detrimental effect, further assessment will not be required so long as the modification

reduces the environmental impact overall. 102. Guidelines and fact sheets on the new processes may be viewed on the Department of Planning website at . See also Preston, ‘The Adequacy of the Law in Satisfying Society’s Expectations for Major Projects’ (2015) 32 EPLJ 182. 103. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) Pt 4 Div 4.1. 104. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) Pt 5.1. 105. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 89C and 115U; State Environmental Planning Policy (State and Regional Development) 2011 (NSW) Schs 1–4. State significant infrastructure may also be declared to be critical state significant infrastructure: s 115V, Sch 5. 106. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 89C(3). The minister may also amend a state environmental planning policy to declare specified development on specified land to be state significant infrastructure: s 115U(4). A project may be declared to be a SSD, for example, not only by reason of its size, capital investment or employment opportunities, but because it is development that is located in an environmentally sensitive area of state significance. 107. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 89E(2), (3). Although an environmental planning instrument may be initiated for the purpose of permitting the development to be carried out: s 89E(5). 108. Environmental Planning and Assessment Regulation 2000 Sch 2 reg 4. 109. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 89K and 115ZH. Note that this provision does not apply to subsequent renewals of licences, which can therefore be subsequently amended; or, in the case of an environment protection licence issued under the Protection of the Environment Operations Act 1997 (NSW), this provision does not apply to the licence after the first review period (within five years: see s 78). Some approvals are also stated not to be required at all for SSD and SSI: see Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 89J and 115ZG. 110. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 89D, 115W and 115ZB. The list of delegations is available at . 111. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 115Y(2); Environmental Planning and Assessment Regulation 2000 (NSW) Sch 1 reg 2(1)(e). A separate species impact statement is not required for SSD: reg 2(1)(f). 112. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 89F and 115Z. 113. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 78A(8A) and 115Y. For general requirements, including contents, of an EIS, see Environmental Planning and Assessment Regulation 2000 (NSW) Sch 2. 114. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 115Z(6); Environmental Planning and Assessment Regulation 2000 reg 85A. 115. Environmental Planning and Assessment Regulation 2000 (NSW) regs 85B and 196. 116. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 89H. In relation to s 79C, see 10.12 and following. 117. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 23D(1)(b); Environmental Planning and Assessment Regulation 2000 reg 268R. 118. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 97(7) and 98(5). 119. See .

120. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 115ZK. 121. Sections 122A–122D. ‘Monitoring’ of a project is the monitoring of the carrying out of the project to provide data on compliance with the approval of the project or on the project’s environmental impact. Requirements for such conditions are set out in s 122D: (2) For the purposes of this Division, an ‘environmental audit’ of a project is a periodic or particular documented evaluation of an approved project to provide information to the proponent of the project and to the persons administering this Act on compliance with the approval of the project or on the project’s environmental management or impact. 122. Section 122B. 123. See ‘Threatened Species Assessment Guidelines: The Assessment of Significance’, available at . 124. This is not exclusive; other relevant considerations may be suggested by the circumstances: Plumb v Penrith City Council [2002] NSWLEC 223 at [37]; Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121 at [52]. For example, cumulative impacts for a number of factors may be relevant: BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210. Neither is the test of significance made out or not made out by finding that only one of the seven mandatory considerations actually applies: Plumb v Penrith City Council [2002] NSWLEC 223; Gales Holdings Pty Ltd v Tweed Shire Council [2006] NSWLEC 85; Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 at [83]; Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48 at [86]. 125. Before an ecological community can be found to exist, there must be a collection of relevant species in a particular area, which interact to sustain the community. Accordingly, the obligation to obtain an SIS does not exist in relation to an ecological community that is merely ‘prospective’: Hornsby Shire Council v Vitone Developments Pty Ltd (2003) 132 LGERA 122. 126. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 78A(8)(b); Threatened Species Conservation Act 1995 ss 109–113. Persons preparing species impact statements may need to be accredited by the Director-General: Threatened Species Conservation Act 1995 (NSW) (EPAA) s 113. A planning application cannot be formally ‘made’ until an SIS is lodged: Friends of South West Rocks Inc v Machro Pty Ltd (2004) 136 LGERA 198. The content of an SIS is set out in the Threatened Species Conservation Act 1995 (NSW) s 110; substantial compliance with these requirements will suffice: New South Wales Land and Housing Corporation v Campbelltown City Council (2002) 126 LGERA 348; McGovern v Ku-ring-gai Council [2008] NSWCA 209. 127. Threatened Species Conservation Act 1975 (NSW) s 111(4). 128. Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11. 129. Section 5B. 130. Sections 77A–77C. The minister administering the Threatened Species Act may elect to act in place of the Director-General or review and amend any recommendations made by the DirectorGeneral: s 79B(4). The consent minister may reject the recommendations, but must state publicly reasons for not accepting them: s 79B(6), (7). 131. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 79B(3). The matters to be considered by the Director-General or minister administering the Threatened Species Conservation Act 1995 as concurrence authority are set out in s 77C. 132. Section 79B(5). Apart from factors that are relevant to the likely effects on threatened species, and the principles of ESD, the criteria also include the likely social and economic consequences of granting or of not granting concurrence. 133. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 112(1B).

134. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 110C. 135. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 112A. 136. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 112B. Matters that must be considered by the minister administering the Threatened Species Conservation Act 1995 when consulted (and by the Director-General when consulted by the minister) are set out in s 112E. 137. Section 112B(2). 138. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 112C. If the minister elects to take the place of the Director-General, recommendations must be sought from the DirectorGeneral. If the minister decides not to accept those recommendations, the minister must make known the reasons: s 112C(2). 139. Sections 112D and 112E: that is, apart from impacts on threatened species, the principles of ESD and likely social and economic consequences. 140. Threatened Species Conservation Act 1995 (NSW) s 126I; a similar provision applies to certification of the native vegetation reform package with the effect that development consent of native vegetation clearing will not require preparation of an SIS: s 126D; NVA s 14(4); and for further discussion on biodiversity and native vegetation certification, see 14.98. 141. Threatened Species Conservation Act 1995 (NSW) ss 127ZO and 127ZP; and for further discussion on biobanking, see 12.64. 142. Sections 89I and 115ZC. 143. Environmental Planning and Assessment Regulation 2000 (NSW) Sch 2 regs 5–7. Schedule 2 requires, among other things, that the reasons justifying the carrying out of the development or activity in the manner proposed, should have regard to biophysical, economic and social considerations, including the principles of ESD. 144. Environmental Planning and Assessment Regulation 2000 (NSW) Sch 2 regs 5, 7(2), (3). 145. Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339. The ‘responsible person’ must ensure that an environmental impact statement complies with any environmental assessment requirements: Environmental Planning and Assessment Regulation 2000 (NSW) Sch 2 reg 3(8); note also the power of the DG to request ‘further particulars’ (for example, reg 192(3)) and to force the proponent to respond to submissions received (for example, reg 85A), before evaluating the proposal. 146. Threatened Species Conservation Act 1995 (NSW) s 110. As with an EIS, failure to prepare an SIS in accordance with the statutory requirements may lead to the invalidity of any subsequent decision taken in relation to the application: Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339. 147. Threatened Species Conservation Act 1995 (NSW) s 111. 148. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 79. 149. Section 79(5). 150. Environmental Planning and Assessment Regulation 2000 (NSW) reg 81. 151. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 80(10)(b). 152. Section 113(8). 153. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 113(1). 154. Section 113(2), (3). 155. Section 113(5). 156. Section 113(6).

157. Section 114. All aspects of this process including advice received from the PAC must be included in the determining authority’s public report on the proposed activity: Environmental Planning and Assessment Regulation 2000 (NSW) reg 243. 158. See generally McDonald, ‘One Step Forward, Two Steps Back: Environmental Impact Assessment Reform Proposals in Queensland’ (1995) 12 EPLJ 367; Warnken and Buckley, ‘Coastal Tourism Development as a Testbed for EIA Triggers: Outcomes Under Mandatory and Discretionary EIA Frameworks’ (1996) 13 EPLJ 239; England, ‘Toolbox or Tightrope: The Status of Environmental Protection in Queensland’s Integrated Planning Act’ (1999) 16 EPLJ 124; Brown and Nitz, ‘Where Have All the EIAs Gone?’ (2000) 17 EPLJ 89; Young and Gray, ‘The Validity of Queensland Environmental Conditions’ (2000) 17 EPLJ 536; Fisher, ‘Environmental Impact Assessment in Queensland’ (2001) 18 EPLJ 109. 159. Sections 314 (impact assessment) and 701 (EIS). 160. Section 238. Assessable development is set out in the Sustainable Planning Regulation 2009 (Qld) Sch 3. 161. See, for example, Celledoni v Johnstone Shire Council [2008] QPEC 104. 162. Section 232. 163. ‘Code assessment’ means the assessment of development by the assessment manager against the common material, applicable codes and other relevant criteria set out in s 313. Applicable codes are set out in the Regulation Sch 5. ‘Common material’ means all the material about the application the assessment manager has received in the first three stages of IDAS, including any concurrence agency requirements, advice agency recommendations, contents of submissions that have been accepted by the assessment manager, and, the approval: Sch 3. It has been held by a majority of the Queensland Court of Appeal in Reservilt Pty Ltd v Maroochy Shire Council (2002) 123 LGERA 233, that in respect of code development the assessment manager must allow the application unless satisfied that compliance with the code could not be achieved by imposing conditions. Since impact assessment confers more public rights with respect to submissions and appeals, disgruntled members of the public may assert that a development should have been subjected to impact rather than code assessment: see, for example, Bon Accord Pty Ltd v Brisbane City Council [2008] QPEC 119; Sgualdino v Woodlands Enterprises Pty Ltd [2009] QPEC 30. 164. By reference to the relevant criteria specified in s 314. 165. Section 688. 166. See 5.73. 167. Regulation 32. Criteria that govern the decision of the chief executive are set out in reg 33. 168. Sections 260 and 261. On what is a ‘properly made application’, see Gold Coast City Council v Fawkes Pty Ltd [2007] QCA 444. 169. Sections 260 and 272. The jurisdiction of referral agencies, indicating whether they are concurrence or advice agencies, is set out in the Regulation Sch 7; and see Reef Cove Resort Pty Ltd v Cairns City Council [2007] QPEC 077. 170. See s 246. 171. Section 276. 172. Section 278. 173. Sections 294–307. 174. Section 314. 175. Schedule 3 ‘common material’. 176. Section 688.

177. Section 690. 178. Section 692. 179. Section 700. 180. Regulation 34. The criteria for public notification are: (a) the complexity of the matters mentioned in the application for terms of reference for the EIS; and (b) the likely level of public interest in the draft terms of reference. 181. Section 691. 182. Section 692. 183. Regulation 37. 184. Sections 694 and 695. 185. Section 696. 186. Sections 697 and 699. 187. Section 698. These are: (a) the terms of reference for the EIS; (b) the EIS; (c) all properly made submissions and any other submissions accepted by the chief executive; and (d) any other material the chief executive considers is relevant to preparing the report. 188. Section 700. 189. Sections 324 and 326. 190. Brown and Nitz, ‘Where Have All the EIAs Gone?’ (2000) 17 EPLJ 89 at 97. 191. Hymix Industries Pty Ltd v Alberton Investments Pty Ltd [2001] QCA 334; failure to impose the condition is an error of law if the Planning and Environment Court, acting reasonably, must have imposed the condition. 192. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) ss 26(1) and 27(2). 193. Section 27. 194. The Coordinator-General’s role is expressed to be to ‘coordinate departments of the Government and local bodies throughout the State in activities directed towards ensuring that in any development proper account is taken of the environmental effects’: s 25. 195. Section 27AA. 196. Section 27AD. 197. Section 27AB. 198. Sections 27(a) and 27AC. A declaration lapses generally two years after terms of reference for the EIS are finalised (s 32(4)); or after four years where no EIS is required (s 27A). 199. Sections 29 and 30. 200. Section 26(2). A project results in broad-scale clearing for agricultural purposes if: (a) undertaking the project will result in the clearing of vegetation that, other than for the making of the declaration, would involve assessable development prescribed under the Sustainable Planning Act 2009 (Qld) s 232(1) that is operational work that is the clearing of native vegetation; and (b) the Coordinator-General is satisfied the clearing is not for a relevant purpose under the Vegetation Management Act 1999 (Qld) s 22A, other than subs (2)(a) of that section; State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 26(3). 201. Section 31.

202. The required content of the EIS is set out in the State Development and Public Works Organisation Regulation 2010 (Qld) reg 35, Sch 1. 203. Sections 32–34. 204. Sections 34A–34C. A report generally lapses three years starting the day after the report is prepared: s 35A. 205. Including conditions that should be attached to an environmental authority and other relevant mining approvals; ss 45, 47C, 49B, 49E and 49G. 206. Section 34D. 207. Sections 35C, 35E and 35F. 208. Section 35G. 209. Section 35H. 210. Sections 35I–35L. The Coordinator-General’s report for the EIS for the project and the Coordinator-General’s change report both have effect for the project. However, if the reports conflict, the Coordinator-General’s change report prevails to the extent of the inconsistency: s 35K. The Coordinator-General’s change report lapses on the lapsing, under s 35A, of the CoordinatorGeneral’s report for the EIS for the project: s 35L. 211. Section 26(1)(b). 212. Sections 34E–34L. 213. State Development and Public Works Organisation Regulation 2010 (Qld) reg 26A, Sch 1AA. 214. IPA s 1.3.5 (definition of ‘material change of use’). For wild river areas, referral agency conditions will prevail if there is any inconsistency between those and conditions set by the CoordinatorGeneral’s report: s 37A. 215. Sections 36–42A. 216. Section 39. 217. Section 39(4). 218. Sections 44–46. 219. Section 47A. In Xstrata Coal Queensland Pty Ltd v Friends of the Earth – Brisbane Co-Op Ltd (2012) 33 QLCR 79 at [45-47], supported in Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (No 4) [2014] QLC 12 at [77–79] the Land Court interpreted the provision about ‘inconsistency’ as allowing the Court to exercise power under the EPA to recommend conditions for a draft EA dealing with the same subject matter as conditions imposed by the Coordinator-General, provided that the Court’s recommended conditions did not contradict or lack harmony with the Coordinator-General’s conditions. 220. Sections 49D–49G. 221. Sections 50–54. 222. Section 52. 223. Section 54. 224. Section 54B. 225. Sections 54C, 54D and 54E; the Planning and Environment Court has limited powers to make a declaration about compliance with imposed conditions for the undertaking of a project: s 54G. 226. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) ss 76A and 76E(1). A declaration ends on the day prescribed in s 76F. 227. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 76E(2).

228. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 76E(4). Note, the application of the Judicial Review Act 1991 (Qld) is limited in relation to critical infrastructure projects: State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 76W. 229. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 76EA. 230. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 76G. The Coordinator-General may also seek further information: s 76H. Relevant entities are prescribed in s 13. 231. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 76D (definition of ‘prescribed process’), s 76I. Before giving a progression notice for a prescribed process the Coordinator-General must have regard to the requirements, if any, under the relevant law for the undertaking of the process which, subject to these provisions, continues to apply: s 76I(6), (7). 232. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 76J. Before giving a notice to decide for a prescribed decision, other than an application for a development approval, the Coordinator-General must have regard to the requirements, if any, under the relevant law for the decision about public notification of information or other matters in relation to the decision. Subject to these provisions, the relevant law for the prescribed decision continues to apply to the making of the decision: s 76J(8), (9). 233. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 76J(7). 234. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 76K. The decision-maker must give all reasonable information and other material required by the Coordinator-General; and, if so requested, a report assessing matters stated in the notice and making recommendations in relation thereto: s 76M. Note, if, in making an assessment about a prescribed decision or process, the Coordinator-General obtains from another entity advice or services the Coordinator-General considers necessary to make the assessment, the CoordinatorGeneral may recover from the applicant as a debt the reasonable cost of obtaining the advice or services: s 76V. 235. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 76L. 236. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 76N. If the prescribed decision or process relates to an application for a development approval, the assessment manager and each concurrence agency for the application is taken to be an advice agency for the application until the Coordinator-General makes a decision: s 76N(d). If an appeal was made or a review was started in relation to the prescribed decision or process under the relevant law for the decision or process, the appeal or review is of no further effect: s 76N(e). 237. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 76O. 238. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 76O(2), (3). Where the relevant local government recommends imposing a condition, that condition must be imposed: ss 76M(4) and 76O(4A). Entities that are to have jurisdiction for the conditions may be prescribed by the Coordinator-General: s 76O(5–7). 239. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 76P. Conditions and other prescribed decisions for a prescribed project imposed or made by the original decisionmaker must be consistent with the Coordinator-General’s decision: s 76P(2), (3). Notice must be given to prescribed entities (s 76Q), and a report tabled in the Legislative Assembly: s 76R. 240. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) ss 76S and 76T(2). 241. State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA) s 76T(1). 242. An approval to carry on an ERA granted under the EPA is not relevantly, however, a ‘development approval’ referred to in the Sustainable Planning Act 2009 (Qld). The only source for such an ‘approval’ is the EPA: see Strasburger Enterprises (Properties) Pty Ltd v Gold Coast City Council [2009] QPEC 103.

243. Environmental Protection Act 1994 s 18. 244. Defined as commercial sugar cane growing; or cattle grazing carried out on an agricultural property of more than 2000 ha that is carried out in certain priority catchments; s 75. For the purposes of environmental risk management plans (ERMP), this definition has an extended meaning set out in s 87A. On ERMP see text accompanying note 262. 245. A resource activity is an activity that involves: (a) a geothermal activity; or (b) a GHG storage activity; or (c) a mining activity; or (d) a petroleum activity; s 107. Relevant terms in this definition are further defined in ss 108–111. See also s 19A (ancillary activities). 246. Section 19. Prescribed activities are set out in the Environmental Protection Regulation 2008 (Qld) s 17, Sch 2. 247. Otherwise, an EIS under this Act can not be used for making a decision under the Planning Act, other than a decision in relation to a mining or resource project; s 37(2). 248. Sections 37(1) and 60. 249. Section 40. 250. Section 37(3). 251. Sections 41–60. Any decision by the chief executive to refuse to allow a submitted EIS to further proceed through the process may be appealed to the minister: ss 56A and 56B. Procedures for consideration of an application for an environmental authorisation for a Ch 5A activity for which an EIS has been required are set out in ss 310F–310Q. 252. Section 49A. 253. Section 50. 254. Sections 56A, 56AA and 56B. 255. This is available for public perusal; see ss 540A and 542. 256. See Young and Gray, ‘The Validity of Queensland Environmental Conditions’ (2000) 17 EPLJ 536. 257. Sections 57–59. Prescribed matters for the environmental assessment report are set out in the Environmental Protection Regulation 2008 (Qld) reg 9. 258. Dictionary ‘standard criteria’. 259. Sections 69–72. 260. Sections 74–87. 261. Sections 87A–105. The ERMP content requirements may be complied with in any number of documents or by incorporating the provisions of other documents into the ERMP; section 96(1). 262. Section 122(2)(c); ‘development’ is defined in s 7(1). 263. Sections 127 and 210. 264. Section 211. Criteria for exemption are set out in the Planning and Development Regulation 2008 (ACT) s 50A. 265. Section 123. 266. Defined in section 124A. For certain proposals mentioned in Sch 4, a proponent may apply for an environmental significance opinion from a relevant agency that the proposal is not likely to have a significant adverse environmental impact; s 138AA (2).

267. Section 123. 268. Sections 212–215. The matters that must be included in a scoping document are set out in the Planning and Development Regulation 2008 reg 54. 269. Section 216. 270. Sections 217–220. 271. Section 213(2). 272. Sections 221–223. 273. Section 224. 274. Section 225. 275. Sections 228–233. 276. Section 227. 277. Sections 209 and 226. 278. Section 129. 279. Defined in ss 3 and 4. 280. Section 4. 281. Modified procedures apply for proposals assessed under a bilateral agreement concluded between the Northern Territory and the Commonwealth: Environmental Assessment Administrative Procedures 1984 (NT) cll 3A, 10A, 11A and 16. 282. Environmental Assessment Administrative Procedures 1984 (NT) cll 4 and 6 (designation of proponent, who is then required to supply information to the minister); cl 7 (NT EPA may call for a report where one has not been submitted and the EPA is of the opinion that the matter may be a proposed action). 283. Administrative Procedures cl 8(2)(3); Department of Lands, Planning and Environment (NT), A Guide to the Environmental Impact Assessment Process in the Northern Territory, 1996. 284. Clause 8. 285. Administrative Procedures cl 9. 286. Clauses 10(2) and 11. 287. Clauses 11(3) and 12. 288. Clause 14. 289. Clause 14(3A). 290. Clause 15. 291. Defined in s 2 to mean ‘works undertaken or proposed to be undertaken … by or on behalf of the Crown or for public statutory bodies but does not include works undertaken by or on behalf of municipal councils’. 292. Criteria for assessing ‘significance’ are set out in Ministerial Guidelines for Assessment of Environmental Effects under the Environmental Effects Act 1978, Melbourne, 2006, p 6. The guidelines indicate what information should be provided by a proponent or decision-maker when referring a project to the minister: pp 8, 9. The matters for consideration by the minister in determining the need for an EES are set out in the guidelines: p 10. 293. Section 4. 294. See Friends of Mallacoota Inc v Minister of Planning and Minister for Environment and Climate Change [2010] VSC 222.

295. Section 6. 296. This would include the Victorian Civil and Administrative Tribunal (VCAT) hearing an appeal: see Carrington v Minister for Planning (1986) 26 APA 372. The Victorian Planning Appeal Board could refer the question of the need for an EES to the minister when hearing a planning appeal or an appeal from a licensing decision of the EPA under the Environment Protection Act 1970 (Vic). However, only extremely rare circumstances would make such a referral necessary and the board must consider, among other things, whether any environmental effects statement would advance the consideration of the particular issues before it. It must also consider any possible unreasonable inconvenience or delay that might arise and that might unfairly disadvantage a party to the appeal. The criteria for referral are set out in the guidelines: p 7. The power vested in the minister under s 6 to call for a report or statement where one has not been submitted relates only to public works, not to works that may be deemed to be works to which the Act applies by virtue of s 8 of the Act. 297. Section 8(2). This does not apply to decisions made under the Planning and Environment Act 1987 (Vic) except: (a) a decision to adopt a planning scheme or an amendment to a planning scheme; and (b) a decision to grant or refuse a permit. 298. See Vic Roads v Nillumbik Shire Council [2002] VCAT 1003. However, in view of the potential environmental impacts, the minister requested the council to consult with DNRE and to consider measures to ensure a no net loss outcome, and requirements for mitigation measures to reduce the impact on flora and fauna. 299. See, for example, Acciona Energy Oceania Pty Ltd v Corangamite Shire Council [2008] VCAT 1617 (Policy and planning guidelines for development of wind energy facilities in Victoria offered a suitable mechanism to assess potential environmental effects). 300. See Thackeray v Shire of South Gippsland [2001] VCAT 922. 301. Guidelines p 13. 302. Guidelines pp 14–21. 303. Guidelines pp 23–25. 304. Guidelines p 9. 305. Section 8(1), (2). 306. Section 8A. The process for making a determination is set out in ss 8B–8G. The minister may also cause an inquiry to be held into the environmental effects of any works or proposed works: s 9. 307. Sections 6(2) and 8C(1)(b)(ii). 308. See generally Leadbeter et al, ‘Recent Trends and Developments in South Australian Environmental Law’ in Environmental Outlook No 3: Law and Policy, Federation Press, Sydney, 1999, Ch 11. 309. Such a decision is protected from judicial review by s 48E; and see Pupfan Pty Ltd v South Australia [2003] SASC 283; though this provision is unlikely to exclude judicial review where a decisionmaker is acting in excess of jurisdiction: see Path Line Australia Pty Ltd v Environment Protection Authority [2002] SASC 37 at [19]. 310. Section 49. 311. Section 49A. 312. Development Regulations 1993 (SA) Schs 2 and 3. 313. Planning SA, Guide to the Assessment of Major Developments or Projects, 2002, p 10. 314. Section 46(1)(a). 315. Pupfan Pty Ltd v South Australia (2003) 131 LGERA 1 at [50] per Debelle J. The ability of the minister to make a declaration that a development is of such importance depends on an exercise of

opinion not a jurisdictional fact. On jurisdictional fact, see 22.44. 316. Development Act 1993 (SA) s 46(6). Such a declaration cannot be made, however, in respect of a development lawfully commenced by substantial work on the site before publication of the notice: s 46(2). 317. Sections 46–46D. Procedural requirements for each of these options are contained in the Development Regulations 1993 regs 63D–63F. 318. Section 4(4). 319. Section 4(5). 320. Section 4(6). 321. Section 4(9); Development Regulations 1993 reg 63. 322. See Planning SA, Assessment Processes for Proposals Declared Major Developments, 2007. 323. Section 46(7), (11). 324. Section 46(10); Development Regulations 1993 (SA) Sch 20. Referrals to other entities are governed by ss 49(7a) and 49A(7a) of the Act and reg 69B and Sch 8 of the Regulations. Where an EPA licence is also required, then the terms of the licence should not be inconsistent with the development authorisation: Path Line Australia Pty Ltd v Environment Protection Authority [2002] SASC 37. 325. Section 46(13). 326. Sections 46B–46D. 327. Development Act 1993 (SA) ss 46B(5)(b), 46C(5)(b) and 46D(5)(b). 328. Development Act 1993 (SA) ss 46B(5)(a), 46C(5)(a) and 46D(5)(a). Referral to the Environment Protection Authority is required where the development or project involves, or is for the purposes of, a prescribed activity of environmental significance as defined in the Environment Protection Act 1993 (SA) Sch 1. 329. Sections 46B(8) and 46C(8). 330. Section 46D(7). 331. Sections 46B(10), 46C(10) and 46D(9). 332. Sections 46B(9), 46C(9) and 46D(8). 333. Section 48C(1)(a). 334. Section 48C(1)(b). The minister may recover reasonable costs incurred: s 48D(2). 335. Section 48C(2). 336. Section 75(4). Note that proposed mining operations on a mining tenement; and proposed development associated with the mining operations, may still be dealt with under s 46; s 75A. 337. Section 75(4a). 338. The legislative scheme relating to significant proposals is also intended to apply to revised proposals: Re Minister for the Environment: Ex parte Elwood [2007] WASCA 137. 339. Part IV; Environmental Protection Regulations 1987 (WA) reg 2C. See also Environmental Impact Assessment Administrative Procedures 2012 (WA) Pt 7 (concept of significance). 340. Re Environmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310 (FC WA). A proposal to zone land (which merely classifies it for future use) cannot be said to be likely to have a significant effect on the environment: Kennedy J at 311. ‘Environment’ must be identified by relationship to a place. Factors such as loss of employment opportunities and alternative sources of supply of a resource are not factors relevant to a consideration of significant effects on the

environment: Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136 (FC WA). See also Greendene Development Corp Pty Ltd v Environmental Protection Authority [2003] WASCA 242; Re Minister for the Environment: Ex parte Elwood [2007] WASCA 137. 341. Section 37B(2). 342. A proposal remains a proposal after the publication of a ministerial statement under s 45(5) and during the course of its implementation: Greendene Development Corp Pty Ltd v Environmental Protection Authority (2003) 28 WAR 107 at [31]–[43]. 343. For example, a management plan for a state forest: South West Forests Defence Foundation (Inc) v Lands and Forests Commission (1995) 86 LGERA 365 (FC WA); plan of subdivision: Re Environmental Protection Authority; Ex parte Sandbourne Holdings Pty Ltd [2002] WASCA 75; Greendene Development Corp Pty Ltd v Environmental Protection Authority [2003] WASCA 242. 344. For example, dredging and management programs: Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136 (FC WA). 345. Re Environmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310 (FC WA) per Pidgeon J at 322. A management plan for a state forest may be deemed a proposal: South West Forests Defence Foundation (Inc) v Lands and Forests Commission (1995) 86 LGERA 365 (FC WA). 346. Section 4. 347. Section 43A. 348. This concept may be applied at various points in the process, when the authority decides to require assessment, and the level of assessment to be applied: see Environmental Impact Assessment Administrative Procedures 2010 (WA). 349. Section 38(5); reg 2C. 350. Section 38(4). 351. Section 38A. 352. Section 39A(2). 353. Section 41. This provision only applies in relation to a strategic proposal, to the extent to which the strategic proposal is itself a significant proposal; s 40B. Similar provisions apply to any other person; s 41A. 354. Section 39B(1). 355. Section 33. 356. Section 39B(4). 357. Section 39A(1)(b). 358. Greendene Development Corp Pty Ltd v Environmental Protection Authority (2003) 134 LGERA 228. 359. Environmental Impact Assessment Administrative Procedures 2012 Pt 10. The EPA has a guideline on the environmental factors and objectives available on its website at . 360. The assessment process is set out in the Environmental Impact Assessment Administrative Procedures 2012. Available at . 361. Environmental Protection Act 1986 (WA) s 40(4). 362. Environmental Impact Assessment Administrative Procedures 2012 Pt 10.1, Sch 1. 363. Environmental Impact Assessment Administrative Procedures 2012 Pt 10.2, Sch 2. 364. Environmental Protection Act 1986 (WA) s 40(6)(b).

365. Environmental Impact Assessment Administrative Procedures 2012 Pt 16. 366. Environmental Protection Act 1986 (WA) ss 44 and 45–45B; Environmental Impact Assessment Administrative Procedures 2012 Pt.15. 367. Environmental Impact Assessment Administrative Procedures 2012 Pt 11. 368. Section 45C and Environmental Impact Assessment Administrative Procedures 2012 Pt 19. The minister is not obliged to exercise the power of approval under s 45C with procedural fairness to persons, other than the proponent, whose interests might be adversely affected by its exercise: Re Minister for the Environment; Ex parte Elwood [2007] WASCA 137. 369. Environmental Protection Act 1986 (WA) s 40(2)(c). 370. The authority, and the minister, may decline to subject a proposal to formal EIA if satisfied that the planning process will adequately consider and deal with environmental issues, although advice may also be given: see, for example, AGC Earthmoving Group Pty Ltd and Shire of Mundaring [2008] WASAT 151. 371. Environmental Management and Pollution Control Act 1994 (Tas) s 3(1). 372. Environmental Management and Pollution Control Act 1994 (Tas) s 74(1). 373. Environmental Management and Pollution Control Act 1994 (Tas) s 3(1). 374. Environmental Management and Pollution Control Act 1994 (Tas) s 24. 375. Environmental Management and Pollution Control Act 1994 (Tas) s 27(2)–(4). 376. Environmental Management and Pollution Control Act 1994 (Tas) s 25. 377. Environmental Management and Pollution Control Act 1994 (Tas) s 26. 378. State Policies and Projects Act 1993 (Tas) s 20(3). 379. Section 74. 380. Section 74(2). 381. Declared under State Policies and Projects Act 1993 (Tas) ss 18 and 18B. 382. State Policies and Projects Act 1993 (Tas) s 20. 383. Environmental Management and Pollution Control Act 1994 s 74(6), except for applications for joint planning scheme amendments and permit applications, where other procedures apply: see Land Use Planning and Approvals Act 1993 Pt 3 Div 2A; Environmental Management and Pollution Control Act 1994 s 25A. 384. Environmental Management and Pollution Control Act 1994 s 74(7). 385. State Policies and Projects Act 1993 (Tas) ss 22 and 23. 386. State Policies and Projects Act 1993 (Tas) s 21(1). 387. State Policies and Projects Act 1993 (Tas) ss 26 and 26A. 388. State Policies and Projects Act 1993 (Tas) s 25. 389. Section 23; and see Sorell Council v Tasmania [2004] TASSC 46. 390. Land Use Planning and Approvals Act 1993 (Tas) s 60C. A declaration may be made under s 60G and revoked at any time: s 60J. A project may be declared to be a project of regional significance even though a use or development proposed to form part of the project is prohibited under a planning scheme (s 60C(9)), though note the exclusions in s 60C(8). For projects on specified land, the consent or notification of prescribed persons or entities is required: ss 60C(4)–(7) and 60D(4). 391. A project is only of regional planning significance if, in the opinion of the minister, the project would make a significant economic or social contribution to a region; or the project is of a scale that would be likely to significantly affect the provision of infrastructure, including social

infrastructure, in the region. 392. A project only requires high-level assessment if, in the opinion of the minister, the project is of such a scale or complexity, or has such characteristics, that the planning authority that would be required under this Act to assess an application for an ordinary permit in relation to the project is unlikely to have the capability or the resources to adequately perform the assessment. 393. Land Use Planning and Approvals Act 1993 (Tas) ss 60D and 60F. When a proposal is made and notified, any application for a permit (an ‘ordinary permit’) that is currently under consideration, must not be determined by the planning authority unless and until a decision is made to refuse to declare the project to be a project of regional significance: s 60E. An application for an ordinary permit is taken to have been withdrawn on the day a declaration is made: s 60H(4)(a). 394. Land Use Planning and Approvals Act 1993 (Tas) s 60G(5), (6). 395. Land Use Planning and Approvals Act 1993 (Tas) s 60H(2). A special permit is issued by a Development Assessment Panel under s 60T. A Development Assessment Panel is constituted for this purpose under s 60M. 396. Land Use Planning and Approvals Act 1993 (Tas) s 60K(1), (2). 397. Land Use Planning and Approvals Act 1993 (Tas) ss 60K(3) and 60L. The director will be taken to have referred the project for environmental assessment unless otherwise advised: s 60K(5). 398. Land Use Planning and Approvals Act 1993 (Tas) s 60L(8), (9). 399. Land Use Planning and Approvals Act 1993 (Tas) s 60N. Before determining the guidelines the panel must consult prescribed entities and have regard to prescribed planning instruments: s 60N(5), (6). The guidelines are to include any guidance issued to the panel by the EPA Board: s 60N(7), (8). 400. Land Use Planning and Approvals Act 1993 (Tas) s 60O. 401. Land Use Planning and Approvals Act 1993 (Tas) s 60O(5). 402. Land Use Planning and Approvals Act 1993 (Tas) s 60P. 403. Land Use Planning and Approvals Act 1993 (Tas) ss 60Q and 60R. Note: there is no provision for exhibition of the environmental impact assessment, although guidelines given by the board will be incorporated into the guidelines for the project assessment under s 60N(7), (8). 404. Land Use Planning and Approvals Act 1993 (Tas) s 60R(4), (5). 405. Land Use Planning and Approvals Act 1993 (Tas) ss 60S, 60T and 60U. Before granting a permit the panel must be satisfied of the matters prescribed in s 60T(4), including that the grant of the permit will further the objectives of the Resource Management and Planning System of Tasmania set out in Sch 1. Reasons for the decision must be given to the proponent, and provided on request to other persons: s 60T(6). The conditions that may be imposed on a special permit include, but are not limited to, a condition that all reasonable steps must be taken to enter into an agreement in respect of a use or development forming all or part of the project to which the permit relates: s 60U(5). The permit takes effect on a date specified in s 60W. Provisions for amendment, revocation and correction of special permits are set out in s 60X. 406. Land Use Planning and Approvals Act 1993 (Tas) s 60V. 407. Land Use Planning and Approvals Act 1993 (Tas) s 60Y. 408. Guthega Development Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353 (CA). Similar principles apply to heritage impact statements, both of which serve the principle of intergenerational equity: F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) (2007) 158 LGERA 250. 409. Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 at 417–18 per Cripps J. A similar standard has been adopted for the preparation of a heritage impact statement required

under a local environmental plan: F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537. 410. Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 at 417–18; Jarasius v Forestry Commission of New South Wales (No 1) (1988) 71 LGRA 79 at 96, 98–9; Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 32. 411. Gray v Minister for Planning [2006] NSWLEC 720 at [150]; Drake-Brockman v Minister for Planning [2007] NSWLEC 490 at [91]. 412. Leatch v Director-General of National Parks and Wildlife (1993) 81 LGERA 270 at 280; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 93; Goldberg v Waverley Council [2007] NSWLEC 259 at [19]; City of Botany Bay v New South Wales Land and Housing Corporation [2010] NSWLEC 160 at [84]. 413. Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 at 417 per Cripps J; Prineas v Forestry Commission of New South Wales (1984) 53 LGRA 160 at 164; Guthega Development Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353; Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 31; Helman v Byron Shire Council (1995) 87 LGERA 349 at 356–7. 414. Prineas v Forestry Commission of New South Wales (1984) 53 LGRA 160. 415. Prineas v Forestry Commission of New South Wales (1984) 53 LGRA 160. 416. Bailey v Forestry Commission of New South Wales (1989) 67 LGRA 200; Jarasius v Forestry Commission of New South Wales (No 1) (1988) 71 LGRA 79. 417. Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86. See also Gray v Minister for Planning [2006] NSWLEC 720; Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242; Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349. 418. Prineas v Forestry Commission of New South Wales (1984) 53 LGRA 160. 419. Helman v Byron Shire Council (1995) 87 LGERA 349 at 356 per Handley JA; see also Bonfoal Pty Ltd v Botany Bay City Council (1999) 105 LGERA 190; New South Wales Land and Housing Corporation v Campbelltown City Council (2002) 126 LGERA 348; McGovern v Ku-ring-gai Council [2008] NSWCA 209. 420. Golden v Coffs Harbour City Council (1991) 72 LGRA 104 at 108; Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 32. Note that the procedures described in this section for compliance with DG’s requirements, and consultation, will inevitably lead to modifications of the EIS before final approval. Formal modification to consent conditions of an approval can be undertaken under Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 96, subject to the threshold test of whether the modified development would be substantially the same development as that to which the original approval was given: see, for example, RES Southern Cross v Minister for Planning and Taralga Landscape Guardians Inc [2008] NSWLEC 1333; Williams v Minister for Planning [2009] NSWLEC 5. 421. (1983) 49 LGRA 402 at 417–18. 422. Per Bignold J at 110; see also Gray v Minister for Planning [2006] NSWLEC 720; Capital Airport Group Pty Ltd v Director-General of the New South Wales Department of Planning (No 2) [2011] NSWLEC 83. 423. Botany Bay City Council v Minister for Planning (2006) 148 LGERA 251. 424. Preston, ‘Adequacy of Environmental Impact Statements in New South Wales’ (1986) 3 EPLJ 194. 425. Environmental Assessment Administrative Procedures (NT) 1984 cl 9. 426. Environmental Assessment Administrative Procedures (NT) 1984 cl 15.

427. Development Act 1993 (SA) s 47. 428. Development Act 1993 (SA) s 48(7); Environmental Protection Act 1986 (WA) s 46. 429. Environmental Protection Act 1986 (WA) s 48. 430. Environmental Protection Act 1986 (WA) s 46. 431. For example, Environmental Protection Act 1994 (Qld) s 73B(3)(a)(iii); Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 134(3)(d)–(f). 432. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 122A–122D; and see further 9.52 and following. 433. See Chapter 15. 434. Environmental Protection Act 1986 (WA) s 100(1), (2). 435. Environmental Protection Act 1986 (WA) s 101. 436. Environmental Management and Pollution Control Act 1994 (Tas) s 27(7). 437. For a more scientific perspective on what this experience has taught us, see Elliott and Thomas, Environmental Impact Assessment in Australia, 5th ed, Federation Press, Sydney, 2009, Ch 10. 438. See Smith, ‘The Role of Assessment of Environmental Effects under the Resource Management Act 1991’ (1996) 13 EPLJ 82; Raff, ‘Ten Principles of Quality in Environmental Impact Assessment’ (1997) 14 EPLJ 207; Malone, ‘Environmental Impact Monitoring’ (1997) 14 EPLJ 222; Marsden and Dovers (eds), Strategic Environmental Assessment in Australasia, Federation Press, Sydney, 2002. For a useful review of the EIA process from a more scientific perspective, see Harding (ed), Environmental Decision-making, Federation Press, Sydney, 1998, Ch 7. 439. Bonyhady, Places Worth Keeping, Allen & Unwin, Sydney, 1993, p 35, also points out that not only are consultants employed by the developer ‘but they also often belong to engineering companies eager to secure much more valuable construction contracts for the projects which they have assessed’. 440. The National Environmental Policy Act 1970 (US). 441. ‘Environmental Risk Assessment: The Divergent Methodologies of Economists, Lawyers and Scientists’ (1993) 10 EPLJ 10 at 14. 442. Planning and Development Act 2007 (ACT) s 213; Planning and Development Regulation 2008 (ACT) reg 55. Note, however, that this provision applies where the authority has itself instructed the proponent to engage a consultant; it does not seem to apply where the proponent has voluntarily engaged a consultant. The Threatened Species Conservation Act 1995 (NSW) s 110(4) requires that a species impact statement must include details of the qualifications and experience in threatened species conservation of the person preparing the statement and of any other person who has conducted research or investigations relied on in preparing the statement. Suitably qualified persons may be accredited (s 113), though a system of accreditation has never been formally introduced. See also s 127ZZI (accreditation of persons as conservation brokers for the purpose of the biobanking scheme). 443. Formby, ‘EIA and the Tasmanian Woodchip Controversy’ (1987) 4 EPLJ 191 at 198. 444. For example, in New South Wales, the Planning Assessment Commission, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 23D; in Victoria, development assessment committees, Planning and Environment Act 1987 Pt 4AA; in South Australia, the Development Assessment Commission, Development Act 1993 (SA) ss 10 and 11. 445. For a graphic illustration, see Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140. 446. Best practice principles for public participation in EIA have been drawn up by the International

Association for Impact Assessment, available at . 447. See Formby, note 618 above, at 200–1. 448. The goals and principles of EIA have been outlined by a Working Group of Experts on Environmental Law of the United Nations Environment Programme. For further discussion, see Bonine, ‘Environmental Impact Assessment: Principles Developed’ (1987) 17(1) Environmental Policy and Law 5–9, 36–7; Fookes, ‘A Comparison of Environmental Impact Assessment in South Australia and Proposed United Nations Environment Programme Goals and Principles’ (1987) 4 EPLJ 204; Morris, ‘In the Evolution of Environmental Impact Assessment: A Time of Change for Australia’ (1987) 4 EPLJ 295. 449. This feeling is compounded by the introduction of offsetting, particularly for biodiversity values: see further 13.36 and following. 450. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 97(7) (applicants) and 98(5) (objectors). 451. The NSW Land and Environment Court has upheld appeals against decisions of the PAC based on insufficient analysis of the data and failure to properly consider all relevant considerations; for example, Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48. 452. See Prineas v Forestry Commission of New South Wales (1984) 53 LGRA 160. 453. Discussed at 6.72. 454. O’Riordan, ‘Environmental Assessment in British Columbia’ (1986) 2 Northwest Environmental Journal 63 at 71; Buckley, ‘Environmental Audit: Review and Guidelines’ (1990) 7 EPLJ 127; ‘Adequacy of Current Legislative and Institutional Frameworks for Environmental Impact Audit in Australia’ (1990) 7 EPLJ 142. Some examples of actual audits are contained in Buckley, ‘Precision in Environmental Impact Prediction’, Centre for Resource and Environmental Studies, ANU, Canberra, 1989. 455. See 8.52. 456. See Bates and Meares, ‘Options for Funding: Environmental Compliance Programs in New South Wales’ (2010) 16 LGLJ 32. 457. See Johnson, ‘Environmental Impact Assessment and Community Perceptions’ (1991) 24 Impact 1.

[page 471]

PART D Protection of Biodiversity Overview Pt D.1 The geographical isolation of Australia has encouraged the evolution of unique, and often rare, species of flora and fauna. The conservation and protection of that wildlife is important for ecological, ethical, educational, recreational, humanitarian, scientific and economic reasons. Yet in Australia, as throughout the rest of the world, many wildlife species are threatened with forced adaptation or extinction. Adaptation and extinction, of course, are part of the process of natural selection. A species may become extinct when it fails to adapt to changing climatic conditions or when better adapted competitors rise up and displace it. Human destruction of habitat and exploitation of the products of biodiversity, however, have already accelerated the rate of forced adaptation or extinction quite unnaturally; and now biodiversity faces arguably the most significant threat, global climate change. Pt D.2 Biological diversity provides genetic resources and opportunities for improved food and medicine production; renewable resources such as fuel, building materials and clothing; and the variation of ecosystems produce oxygen, recycle nutrients, control pests and diseases, pollinate crops, regulate water quality and exercise climate control.1 Wildlife is also a significant contributor to our cultural heritage and aesthetic appreciation of the world around us. But quite apart from their utilitarian value to [page 472] humans, it can be argued that as fellow creatures sharing the resources of the earth, wildlife has an intrinsic right to survive and evolve. Human exploitation of resources, therefore, needs to take account of the needs of the myriad other life forms that also depend on natural resources for their survival. These principles were enshrined in the Convention on Biological Diversity, finalised

at the Earth Summit in 1992, which recognises the ‘intrinsic value of biological diversity’ and the ‘importance of biological diversity for evolution and for maintaining life sustaining systems of the biosphere’.2 The Convention stresses the importance of conserving ecosystems, not merely protecting species, in order to achieve the objects of the Convention.3 Pt D.3 Australia, in fact, has an unenviable record of habitat destruction and species extinction. In just two centuries since Europeans arrived in Australia, half the forests have been cleared, more than half our arid and semiarid lands degraded, and half (that is, 20) of all the mammal species that have become extinct worldwide in the last 200 years have been in Australia. Ecological communities such as temperate grasslands have also dwindled to near extinction.4 Losses also include 75 per cent of all rainforest and 60 per cent of wetlands in southern and eastern Australia.5 Although it is possible to identify particular activities or processes that threaten biodiversity, such as creeping urbanisation, clearance of native vegetation, grazing, altered bushfire regimes and predation or invasion of habitats by feral animals and plants (‘environmental biosecurity’),6 environmental indicators suggest that fundamental changes to landscapes, and the failure to effectively manage natural ecosystems such as catchments, also impact adversely on biodiversity.7 More sophisticated integration of biodiversity management into management of natural resources is needed, and a landscape-based approach adopting adaptive management.8 This is problematic for policy and legislative responses, which historically do not grapple well with solutions that require an integrated or whole-ofgovernment approach, or focus more on processes rather than outcomes.9 Cultural ties to past practices that cause biodiversity loss are also hard to break, while new pressures are emerging. [page 473] Pressures on Australia’s terrestrial biodiversity have been operating over long periods of time and have a legacy (often called an ‘extinction debt’) that will continue for decades to come, even with remedial action. While clearing has been one of the main pressures, it is likely that climate change and urban development, infrastructure, and water extraction will soon dominate.10

The Commonwealth State of the Environment Report 1996 identified loss of biodiversity as Australia’s most serious environmental problem, but pointed out that we do not have the data or scientific understanding to predict whether current patterns of change to the natural environment are sustainable. The Commonwealth State of the Environment Report 2001 reported that many threatening processes identified in the 1996 Report, such

as salinity, changing hydrological conditions, land clearing, invasive species and fragmentation of ecosystems, still persisted; and that only four other countries in the world exceeded the rate of land clearance occasioned in Australia in 1999.11 The 2006 report still offered a gloomy prognosis: Australia’s most vulnerable ecosystems have been the first to suffer massive biodiversity decline but this does not mean that other systems will not follow. It is only a question of how long it will be before pressures will overwhelm the resilience of the remaining ecosystems.12

The 2011 Report does not find any better prospects: Despite promising investment by all jurisdictions in addressing the main pressures on biodiversity, state of the environment reports around the nation continue to conclude that the decline in biodiversity is not being arrested or reversed. Most pressures on biodiversity that arise directly or indirectly from human activities appear to still be strong and those that have declined, such as land clearing, continue to have legacy effects that will continue for years or decades.13

A report14 to the Natural Resource Management Ministerial Council in 2005 on a national approach to biodiversity decline suggested that a fresh approach was needed, and that this should focus on three system-wide threats to biodiversity: drivers of loss of habitat values and decline in ecosystem function; spread of invasive pests, weeds and diseases; and impacts of climate change on biodiversity. A companion report15 on decline in marine biodiversity in 2008 suggested a focus on five areas of concern: climate change, resource use, land-based impacts, marine biosecurity and marine pollution. [page 474] Pt D.4 National efforts to protect biodiversity are supposed to reflect the initiatives contained in the National Strategy for the Conservation of Australia’s Biological Diversity, first produced in 1996. A review of the strategy in 2001 concluded that it needed to be more focused and targeted. Consequently, national objectives and targets for biodiversity conservation for the period 2001–05 were introduced to augment the National Strategy, though take-up across jurisdictions was patchy. In 2006, a review16 of the strategy to determine how it aligned with relevant state and territory strategies, natural resource management policies and other approaches, concluded that below the level of overarching goals, state and territory strategies varied considerably in focus, emphasis, strategic objectives and implementation programs. The National Strategy for the period 2010–30 focuses on three key priorities for action: engaging all Australians; building ecosystem resilience in a changing climate; and delivering measurable results.17 Each of the priorities for action is supported by sub-priorities, outcomes, measurable targets and

actions that collectively provide a strategic focus for action. Attaining the objectives will also engage complementary strategies, particularly the National Framework for the Management and Monitoring of Australia’s Native Vegetation;18 Australian Weeds Strategy;19 Australian Pest Animal Strategy;20 and Australia’s Strategy for the National Reserve System (NRS) 2009–2030.21 For the purposes of Part D, an introduction to policy and legislative approaches to protecting and managing biodiversity may be divided into those that concentrate on protecting habitat (the ecosystems approach) and those that concentrate on protection of species (the species approach). This is more to do with historical approaches to designing legislation around the creation of reserves and protection of species rather than logic; obviously, species are not going to survive long without adequate habitat. More modern approaches to native vegetation clearance and protection of threatened species of course challenge this classification by demanding a more integrated approach. Chapter 12 discusses management of biodiversity in protected areas, Chapter 13 focuses on native vegetation, and Chapter 14 deals with native and threatened species. Protection of biodiversity from pollution is also discussed in Chapter 15, impacts of climate change in Chapter 17, and management of natural resources impacting on biodiversity in Chapter 18.

International obligations for protecting habitat Pt D.5 It may seem obvious but there is little point in seeking to protect individual species of flora and fauna if the habitats in which they exist are not also preserved. The Rio Declaration on Environment and Development, concluded at the Earth Summit in 1992, and endorsed by Australia, commits the signatories (Principle 7) to [page 475] conserving, protecting and restoring the health and integrity of the earth’s ecosystems. An ecosystems approach22 to conservation and management therefore emphasises preservation of habitat as integral to the survival of species, and forms the basis of the concept of protection of biological diversity23 enshrined in the Convention on Biological Diversity. This Convention obliges Australia and other signatory nations to both in situ24 and ex situ25 means of protecting biological diversity and promoting the recovery of threatened species and degraded ecosystems. Pt D.6 The Convention also stresses that access to, and use of, components

of biological diversity26 must be conducted on a sustainable basis.27 As Blay and Piotrowicz note: … the most significant proportion of the Earth’s biodiversity is located in the tropics, in the developing world where, out of economic necessity, states frequently engage in unsustainable exploitation of resources and/or their natural habitat. On the other hand the developed countries have the technology and expertise to exploit commercially the genetic resources and also provide financial assistance.28

Consequently, the Convention introduced a range of measures to address the economic problems faced by developing countries in maintaining biodiversity, including technology transfer, recognition of sovereignty over natural resources, regulating access to genetic resources29 and providing financial resources and mechanisms.30 Interestingly, Queensland relied on these provisions of the Convention to enact the Biodiscovery Act 2004 (Qld), which seeks, among other things, to encourage limited access to native biological resources in Queensland, the development of ‘value added biodiscovery’, fair and equitable sharing arrangements, and sustainable use.31 [page 476] Principles of the Biodiversity Convention are introduced into Australian domestic legislation by the terms of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA)32 and by various pieces of state legislation.33 Pt D.7 Australia is also a party to a number of Conventions that relate specifically to migratory wildlife. The 1979 Convention on Migratory Species (the Bonn Convention)34 has as its objective the conservation and effective management of migratory species. The Convention provides for conservation of species that during their life cycle range across national boundaries. In particular, the Convention requires concerted action by all nations that exercise jurisdiction over any part of the range of a particular species. The Convention provides a framework within which nations can cooperate in undertaking scientific research, restoring habitats and removing impediments to the migration of species. The Convention creates different rules for species classified in either Appendix I or Appendix II. Appendix I covers migratory species that are endangered, that is, that are in danger of extinction throughout all, or a significant portion, of their range. Parties that are ‘range nations’ of Appendix I must comply with the following mandatory obligations: (1) endeavour to conserve and restore habitats;

(2) prevent or minimise adverse effects of activities that seriously impede or prevent the migration of species; and (3) prevent, reduce or control factors that are endangering or likely to further endanger the species. Species that have an ‘unfavourable conservation status’ and require international agreements for conservation and maintenance, as well as those that have a conservation status that would significantly benefit from international cooperation, are listed in Appendix 2 of the Convention. An unfavourable conservation status includes a failure to maintain itself as a valuable component of an ecosystem; reduction in range; and insufficient habitat to maintain itself in the long term. The EPBCA is also the primary vehicle for fulfilment of these obligations in Australia.35 As a consequence of agreements with Japan (Japan–Australia Migratory Bird Agreement: JAMBA),36 China (China–Australia Migratory Bird Agreement: CAMBA)37 and Korea (Republic of Korea–Australia Migratory Birds Agreement: ROKAMBA)38 the list of migratory species kept under the EPBCA s 209 also includes [page 477] birds listed in these agreements.39 The agreements recognise the importance of establishing ‘sanctuaries and other facilities’ for the management and protection of migratory birds and birds in danger of extinction,40 in addition to controls over taking, importing and exporting of listed species. Pt D.8 Other ecosystems-based agreements encompass the Pacific and Antarctica. The Convention on Conservation of Nature in the South Pacific (Apia Convention)41 commits Australia to establish protected areas to safeguard representative samples of natural ecosystems. The Antarctic Treaty 1959 art IX obliged Australia to take certain measures to conserve Antarctic flora and fauna, and this has now been provided for by the creation of specially protected areas and sites of special scientific interest under the Antarctic Treaty (Environment Protection) Act 1980 (Cth).42

Domestic approaches Pt D.9 At a domestic level, the Inter-Governmental Agreement on the Environment (IGAE) recognises that the ‘protection and sound management

of natural habitats is of fundamental importance’ to biodiversity protection; and commits Commonwealth, state and local governments to a national approach for the conservation, protection and management of native species, and a national approach to rare, vulnerable and endangered species.43 Every state and territory, as well as the Commonwealth, has reserved areas of land for protection of biological diversity, though the objects of such reservation often also include public recreation and enjoyment. The reservation of such areas may take place under the authority of legislation; or reserves may be created by legislation. Such areas are variously described as national or marine parks, nature reserves, wilderness areas, wildlife reserves, or given some other classification such as forestry reserves or special areas. The purpose of each category of reserve is spelt out by the legislation. The scheme of the legislation is to enable the authority in whom the reserve is vested (a national parks and wildlife service or similar) to manage such areas in accordance with the objects of the reservation. These objects generally have to be reflected in the preparation of a management plan for the area. Native wildlife is protected in such reserves. Outside reserves, ecosystems protection will depend on a variety of approaches, which include the use of: native vegetation clearance controls; state, regional and local environmental planning instruments; planning controls for development that require an assessment of the environmental impacts of development, including effects on native wildlife; threatened species legislation; [page 478] the negotiation of property agreements with private landowners; imposition of land management practices on private landholders by public authorities, aimed at arresting and repairing land degradation; and integration of biodiversity considerations into the management and decision-making practices of agencies operating under a wide range of legislation that authorise decisions to be made that might impact on the sustainable use and development of natural resources.

Species approach to biodiversity conservation Pt D.10 Even though the NRS of Australia boasts an extensive range of

some 10,000 national parks and other protected areas comprising just under 18 per cent of the area of the country,44 this is not adequate for the overall protection of biodiversity, particularly since large areas of reserved land are subject to mixed uses rather than simply conservation. The main feature of a species approach to protecting biodiversity, rather than simply a reserves approach, is that it protects biodiversity that is not found in conservation reserves or land subject to property agreements. The protection of individual species of wildlife may be combined with an ecosystems approach to focus on the underlying causes of species loss in a way that reflects the interconnectedness of species within their ecosystems. Such an integrated approach is highly desirable, and reflected in modern approaches to management of native vegetation and threatened species. The ‘pure’ species approach, however, is recognised at the international level through, for example, fisheries agreements,45 prohibitions on whaling,46 and restrictions on taking and trading in endangered species.47 At a domestic level, the species approach is represented by legislative protection, to varying degrees, of native species both within the boundaries of declared reserves and outside; and by restrictions on what would otherwise be the common law rights of private landowners to take into possession fauna and flora found on their land. Such restrictions are commonly embodied in national parks and wildlife legislation in all jurisdictions, supplemented by endangered species legislation and import and export controls. Outside reserves, most native species of fauna are protected wherever found, although exemptions apply to some dangerous or invasive pest species, and licences may also be issued for the taking or killing of most native species, in prescribed circumstances. Native plants are generally less well protected; they remain vulnerable to destruction unless specifically listed as a protected species or subject to clearance controls on native vegetation. [page 479]

The legislative approach to biodiversity conservation Pt D.11 From the perspective of evaluating legal mechanisms for biodiversity conservation in Australia, legislation may be broadly divided into three categories: (1) that which is designed specifically to protect biodiversity (for example,

national parks and wildlife and threatened species legislation); (2) that which, although not solely designed to protect biodiversity, has significant application to biodiversity protection (for example, that applying to environmental planning and development control); and (3) legislation that is not designed to protect biodiversity but the application of which may adversely affect biodiversity. This category may contain some provisions relating to biodiversity protection (for example, energy and fires legislation); and may well include requirements to take into account ecologically sustainable development (ESD). The significance of such categorisation is to confirm that biodiversity protection is affected by, and in fact relies on, discretionary exercises of power by virtually every statutory or government authority in Australia; and that responsibility for biodiversity protection is legally divided among, or conferred on, many of these authorities, creating a complex regulatory web that is often uncertain in its application, inefficient in its approach, and ineffectual in adequately protecting biodiversity. Neither the legislation, nor apparently government policy, displays any real coordinated or integrated approach to management of biodiversity; legislative functions appear to have been conferred on government agencies in an ad hoc manner without any clear strategic direction for promoting biodiversity conservation.48 Pt D.12 It is also obvious that the exercise of a wide range of lawful activities, as well as unlawful ones, may impact adversely on biodiversity; and that, except for legislation that is specifically directed to protection of biodiversity, the statutory authority to undertake such activities usually requires either no consideration of effects on biodiversity, or at the most requires decision-makers only to ‘have regard’ generally to environmental impacts or principles of ESD, of which protection of biodiversity is one. Much of this legislation also fails to specify any criteria by which such consideration should be guided. In reality, therefore, it is not so much the nature of legislation that determines its impact on biodiversity, as the application of that legislation without regard for, or in ignorance or disregard of, its potential to adversely impact on biodiversity; and the absence of definitive criteria for the assessment and management of impacts on biodiversity. Many legislative powers can be exercised in a way that will minimise rather than exacerbate impacts on biodiversity; however, there are usually no specific legislative requirements to command such an approach.

1.

See, for example, ‘Biological Diversity Advisory Committee, A National Strategy for the Conservation of Australia’s Biological Diversity — Draft for Public Comment’, AGPS, 1992; Ecologically Sustainable Development Working Group — Intersectoral Issues Report, AGPS, 1992. And on valuing biodiversity see also Martin, ‘The Law and Economics of Feral Extermination: Legal and Economic Answers to Eradicating the Cane Toad’ (2015) 32 EPLJ 115, 121.

2.

Preamble first and second recitals. The Convention entered into force in December 1993.

3.

Particularly art 8. See also Dixon, ‘Protection of Endangered Species — How Will Australia Cope?’ (1994) 11 EPLJ 6.

4.

Endangered Species Advisory Committee, An Australian National Strategy for the Conservation of Australian Species and Communities Threatened with Extinction, ANPWS, 1992, p 4.

5.

Trewin, ‘Measuring Australia’s Progress’, Australian Bureau of Statistics, 2006, p 216.

6.

See .

7.

Saunders, Margules and Hill, ‘Environmental Indicators for National State of the Environment Reporting: Biodiversity’, Environment Australia, Canberra, 1998. Other indicators have been developed for estuaries and the sea; the land; and inland waters.

8.

Australia State of the Environment 2006, Ch 5. Available at . This approach is supported by a later report, Assessment of Australia’s Terrestrial Biodiversity 2008, available at .

9.

On the ‘failure of government’ see Ritchie et al, ‘Continental-scale Governance Failure Will Hasten Loss of Australia’s Biodiversity’, 27 Conservation Biology 1133 (2013); Clement et al, ‘Authority, Responsibility and Process in Australian Biodiversity Policy’ (2015) 32 EPLJ 91.

10. Australia State of the Environment 2006, Ch 5, note 8 above. 11. In 2001, the Commonwealth government declared land clearance as a key threatening process under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA). 12. Australia State of the Environment 2006, Ch 5, note 8 above. 13. Available at . 14. ‘A National Approach to Biodiversity Decline’. Available at . 15. ‘A National Approach to Addressing Marine Biodiversity Decline’. Available at . 16. ‘Biodiversity: Managing a National Asset’. Available at . 17. Available at . 18. Available at . 19. Available at . 20. Available at . 21. Available at . 22. Convention on Biological Diversity 1992 art 2 defines an ecosystem as ‘a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit’. 23. The ‘variability among living organisms from all sources including, among other things, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are a part; this

includes diversity within species, between species and of ecosystems’: Convention on Biological Diversity art 2 definition of ‘biological diversity’. 24. Conditions where genetic resources exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties: Convention art 2. 25. The conservation of components of biological diversity outside their natural habitats: Convention art 2. 26. Categories for biodiversity components important for conservation and sustainable use are listed in Annex 1 — ecosystems and habitats; species and communities; and described genomes and genes. 27. Articles 10 and 15. 28. Blay and Piotrowicz, ‘Biodiversity and Conservation in the Twenty-first Century: A Critique of the Earth Summit 1992’ (1993) 10 EPLJ 450 at 452; see also Commins, ‘Biodiversity — Legal Implications for Australia’ (1993) 10 EPLJ 486. 29. See Lawson, ‘Implementing an Objective of the Convention on Biological Diversity — Intellectual Property, Access to Genetic Resources and Benefit Sharing in Australia’ (2005) 22 EPLJ 130. See also Agius, ‘Biodiversity Credits: Creating Missing Markets for Biodiversity’ (2001) 18 EPLJ 481; Sheehan and Small, ‘Biota and the Problem of Property’ (2005) 22 EPLJ 158. 30. See further . 31. Section 3. And on accessing biological resources in Commonwealth areas, see 12.40. 32. See 12.8 and following. 33. See 12.41 and following. 34. See . 35. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 209. Migratory species are not listed in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) itself but may be found at . 36. Available at . 37. Available at . 38. See . 39. See . 40. Agreements art 5. 41. Available at . 42. And see Fallon and Kriwoken, ‘Environmental Impact Assessment under the Protocol on Environment Protection to the Antarctic Treaty and Australian Legislation’ (2005) 2(1) MqJICEL 67. 43. IGAE Sch 9. 44. See . 45. For example, Convention for the Conservation of Southern Bluefin Tuna. And on the functions of the Commission under this convention, see . 46. See 4.25. 47. See 14.73 and following. 48. Dawson argues that this may be due to an unreasonable reliance on science to provide clear, objective goals for biodiversity conservation as the foundation for law and policy: see ‘Analysing

the Goals of Biodiversity Conservation: Scientific, Policy and Legal Perspectives’ (2004) 21 EPLJ 6.

[page 481]

Chapter 12 Protected Areas Introduction 12.1 The ecosystems approach to biodiversity protection is furthered by a vast network of reserves of various descriptions located throughout Commonwealth and state and territory land and marine areas; and by protection of ecosystems located on private land through the use of property or conservation agreements. Outside these reserves and conservation areas, protection of biodiversity habitat relies more on native vegetation clearance controls, threatened species legislation and application of planning controls. 12.2 Most reserves are on public land, although legislation does allow, and may indeed encourage, reserves to be created on private land by agreement with landowners.1 As a last resort, land may be compulsorily declared to be a reserve or even compulsorily acquired for public purposes, which includes the creation of reserves and biodiversity conservation,2 though this is not a likely or a favoured option. The reservation and protection of small areas of land for recreational, aesthetic and educational purposes through the creation of local parks and other reserves,3 botanical gardens,4 and the preservation of historic sites, has been a welcome feature of many otherwise mundane and uninteresting city and urban environments in Australia. Such reservations have commonly taken place under local government or Crown lands legislation. The preservation of representative samples of natural habitats and wild flora and fauna has also been possible, to some extent, through both this and resourcebased legislation such as the forestry and fisheries legislation. Reservations of larger areas of land for national parks and other types of reserves, or reservations for particular ‘protective’ purposes such as natural ecosystems are, however, commonly created under specialist national parks and wildlife legislation, which set up their own administrative structures for carrying out protective and management functions.

[page 482] 12.3 The benefits to the public of reservations for such purposes are probably self-evident. Holland J remarked in Attorney-General v Sawtell [1978] 2 NSWLR 200 at 212, that: … one of the explanations for the intensified interest of large numbers of the public in wildlife and preserved natural areas offered by the evidence is the pressures on modern human beings of their artificially created environment and the crowding caused by population growth making more and more attractive, access to wilderness areas, national parks and nature reserves which, by affording relief and distraction from such pressures, promotes our mental health and well being.

The preservation of wildlife has also been judicially recognised as tending to ‘promote humane feelings and to improve public morality’.5 12.4 The Convention on Biological Diversity obliges Australia and other signatory nations to establish systems of protected areas where special measures need to be taken to conserve biological diversity and promote the recovery of threatened species and degraded ecosystems. Conservation by reservation alone, however, is not a complete answer. The Brundtland Report on sustainable development6 recommended an ‘anticipate and prevent’ approach: … development patterns must be altered to make them more compatible with the preservation of the extremely valuable biological diversity of the planet. Altering economic and land use patterns seems to be the best long-term approach to ensuring the survival of wild species and their ecosystems.7

If land management were always complementary to biodiversity protection, then arguably reserves would not be necessary; that day, however, is a long way off. 12.5 The procedures for acquiring land for use as a national park or other reserve depend on the purpose of the acquisition; that is, what type of reserve it is intended to proclaim. The procedures for reservation, as well as the varieties of reserve that may be created, differ in each state.8 Generally speaking, a specific Act of Parliament either creates reserves, or legislation may authorise the proclamation by the government of areas of land as reserves. The latter method is the most favoured. Areas of land within parks or reserves may also be classified according to their special qualities or desirable uses and the purposes of reservation will be reflected in the management policies applicable to those areas. Some types of reserve are totally protected for the purpose of the reservation. Others may be managed as multiple-use areas, subject to

[page 483] such conditions as befit their reserve status. Development in most protected areas is restricted, if not completely prohibited.9 12.6 Commonwealth power to declare and manage reserved areas10 is, in practice, restricted to Commonwealth land, Commonwealth marine areas, the Australian External Territories and six national parks,11 including Kakadu and Uluru (Ayers Rock) National Parks in the Northern Territory, which are leased from traditional Aboriginal owners and managed on a joint basis. The states have primary responsibility for declarations of reserves within state boundaries, although the Commonwealth, through its constitutional powers, does have considerable ability to protect or regulate state lands and resources for conservation purposes.12 It can also offer financial inducements and assistance for conservation projects through the provisions of the Caring for Our Country and related programs.13 Commonwealth and state governments also cooperate through joint management structures for reserved areas of world heritage significance such as the Great Barrier Reef, the wilderness of south-west Tasmania and the rainforests of Northern Queensland. 12.7 This cooperative approach is furthered by the establishment of the National Reserve System (NRS),14 which represents the collective efforts of the states, territories and federal government, and non-government organisations, to achieve an Australian system of protected areas for conservation of native biodiversity. The NRS, which boasts around 9500 protected areas covering 13.4 per cent of the continent (over 100,000,000 hectares), is designed to support the ongoing development of a comprehensive, adequate and representative (CAR)15 protected area system across Australia. The CAR system, which is the scientific underpinning for the NRS, was instrumental in establishing criteria for the evaluation of conservation values of forest areas for use in the Regional Forests Agreement process.16 All jurisdictions are also working towards establishing a similar structure based on CAR scientific analysis for a National Representative System of Marine Protected Areas (NRSMPA).17 The NRSMPA currently covers some 3,000,000 square kilometres of ocean, 60 reserves covering about a third of Commonwealth waters. In addition, [page 484] there is a growing network of, at present, some 70 Indigenous Protected Areas

covering 65 million hectares, managed by Indigenous communities for conservation.18

Commonwealth protected areas 12.8 The provisions of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) now govern the declaration and management of various types of protected area managed by the Commonwealth.

Bioregional planning 12.9 The development of a comprehensive, adequate and representative (CAR) NRS rests on a bioregional framework. A bioregion is an area comprising a whole ecosystem or several interconnected ecosystems, characterised by landforms, vegetation cover, human culture and history. Such areas may be geographically separate from one another. For example, particular ecosystems may be found in widely dispersed forest or marine areas. The advantage of bioregional planning is that conservation of ecosystems can be based on a broad appreciation of their range rather than geographically limited to particular areas. The EPBCA specifically enables (though does not require) the minister to prepare, or cooperate in the preparation of, bioregional plans.19 A bioregional plan will provide the ‘blueprint’ for the sustainable management of natural resources within a bioregion. The Interim Biogeographic Regionalisation for Australia (IBRA)20 divides Australia into 89 large biographically distinct bioregions and 419 sub-regions for the purposes of bioregional planning. In building the NRS, priority is being given to under-represented bioregions that have less than 10 per cent of their remaining area protected in reserves.

Inventories of Commonwealth land 12.10 The original provisions of the EPBCA required the minister to prepare, within five years, inventories that identified and stated the abundance of listed threatened species and ecological communities, listed migratory species and listed marine species on Commonwealth land. This obligation has been reduced to a ‘may prepare’.21 Similar obligations were

imposed in relation to such species, as well as cetaceans, in Commonwealth marine areas, within a time frame of 10 years; again, this is now reduced to ‘may prepare a survey’.22 Such research should help to identify areas of Commonwealth land or marine areas for future protection. [page 485]

World heritage 12.11 Australia currently has 41 properties23 on the list of world heritage kept under the auspices of the International Convention on the Protection of the World’s Natural and Cultural Heritage 1972 (the World Heritage Convention). These are a mixture of natural and colonial heritage areas. To enable domestic laws to apply to the management of world heritage properties, declarations must be made under the EPBCA s 14. The provisions of this Act replace those of the World Heritage Properties Conservation Act 1983 (Cth), first enacted specifically to give the Commonwealth legal power to save the Franklin River and surrounding environment in Tasmania from being adversely affected by the construction of a hydro-electric dam authorised by the Tasmanian government. The dam project was finally stopped when the Tasmanian government was unsuccessful in persuading the High Court that the legislation was unconstitutional.24 12.12 Under the EPBCA, any property included in the World Heritage List25 is a declared world heritage property, so long as it remains on the list.26 In addition, a property not yet on the list may be declared world heritage if the property has been submitted by the Commonwealth to the World Heritage Committee under art 11 of the Convention, or if the minister is satisfied that the property has, or is likely to have, world heritage values27 and some or all of those values are under threat.28 Except where such threats are imminent, the minister must consult with the states before making such a declaration. However, the validity of a declaration is not affected by a failure to comply with this requirement.29 Where a submission includes property in a state or territory or any area occupied or owned by another person, then the minister must be satisfied that the Commonwealth has used ‘its best endeavours’ to reach agreement on the submission and management arrangements for the property before the submission can be made.30 12.13 A declaration in respect of an unlisted property is to be limited to such a period as is considered by the minister to be adequate to allow the World Heritage Committee to decide on a nomination, or to enable the

Commonwealth to determine whether to submit a nomination.31 In the latter case, a declaration made because potential [page 486] world heritage values are under threat cannot, in any case, exceed 12 months.32 If the World Heritage Committee de-lists a property33, or if the Commonwealth withdraws a nomination or decides that a property should not be submitted, does not have world heritage values, or those values are not under threat, then the declaration must be revoked.34 Public notice of all submissions, inclusions, restrictions, withdrawals and exclusions must be included in the Commonwealth Gazette.35 12.14 It is an offence to take any action that results, will result or is likely to result, in a significant impact on the world heritage values of a declared world heritage property, unless otherwise authorised.36 A person is also liable to a civil penalty for taking such action, including taking action that is likely to have such an impact.37 In Booth v Bosworth [2001] FCA 1453, the Federal Court upheld a complaint against the respondent who was operating electric grids that were killing spectacled flying foxes on private land within the Wet Tropics World Heritage Area. The court concluded that the flying foxes contributed to the world heritage values of the area and that continued use of such devices for killing them was likely to lead to a significant impact.38 By contrast, an application for an injunction to restrain the culling of dingoes on Fraser Island, because of aggressive behaviour towards visitors, was rejected in Schneiders v Queensland [2001] FCA 553 and Jones v Queensland [2001] FCA 756. 12.15 In addition to civil and criminal penalties, offenders may also be subject to the issue of a remediation order to mitigate or repair damage to the environment caused by a contravention of the Act.39 For example, in February 2008, the federal minister issued such a remediation order requiring property owners to make good, damage caused by unauthorised land clearing that posed a risk to the Great Barrier Reef World Heritage Area by exposing marine waters to increased soil run-off and sediment build-up. 12.16 In deciding whether to grant permission to such activities, the minister is instructed not to act inconsistently with Australia’s obligations under the World Heritage Convention.40 Similarly, in declaring that an action does not need approval, because it has been approved under a prior accredited authorisation process or [page 487]

management arrangement operating under Commonwealth law,41 the minister must be satisfied that the declaration is not inconsistent with Australia’s world heritage obligations; and that a declaration will promote management according to principles of world heritage management.42

Management plans 12.17 Plans must be prepared by the minister for all world heritage properties that are entirely within Commonwealth areas.43 In the states and territories, the Commonwealth and its agencies have a responsibility for declared world heritage properties to take all reasonable steps to ensure that powers and functions in relation to properties are exercised in a way that is not inconsistent with the Convention, world heritage management principles or a management plan.44 Where a property is partly outside a Commonwealth area, and in a state or territory, and that property is included in the World Heritage List, then the Commonwealth must use its ‘best endeavours’ to ensure that an appropriate plan is prepared and implemented in cooperation with the state or territory.45 State management plans and authorisation processes for world heritage properties may be accredited under bilateral agreements and may allow for the declaration of actions that do not then need approval under Pt 9 of the Act.46 Criteria for accreditation of plans are set out in the Regulations.47 Plans must not be inconsistent with Australia’s obligations under the World Heritage Convention, or with Australian world heritage management principles,48 which are set out in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Sch 5.49 The Commonwealth and its agencies are instructed not to contravene a plan.50 Financial assistance may be given to any person or a state or territory for protection or conservation of declared world heritage properties.51 [page 488]

The Great Barrier Reef 12.18 The Great Barrier Reef is probably Australia’s best-known natural feature and world heritage property. The Queensland government declared the Great Barrier Reef a marine park area (not specifically a park) in 1974. However, the possibility of oil drilling on the reef, coupled with the national and international significance of the area, led to a Commonwealth interdepartmental investigation into the resource and conservation aspects of management of the reef. The culmination of this research was the enactment of the Great Barrier Reef Marine Park Act 1975 (Cth) (GBRMPA), which is

not affected by the passage of legislation pursuant to the offshore constitutional settlement.52 Although the reef, as a world heritage property, would ordinarily fall within the provisions of the EPBCA, a person taking an action in the area of the reef does not need approval under the EPBCA if that action is being taken in accordance with provisions of management under the GBRMPA.53 The GBRMPA is administered by the Great Barrier Reef Marine Park Authority,54 which is responsible for management of the park.55 Plans of management may be prepared for areas of the park and for species and ecological communities.56 In preparing the plan the authority must have regard to the world heritage values of the park and the precautionary principle.57 The plan must not be inconsistent with zoning plans.58 No operations for the recovery of minerals may be conducted in the marine park, except for scientific purposes.59 Other activities are controlled by a zoning plan.60 Before preparing a zoning plan in respect of an area, the authority must determine principles relating to the preparation of the proposed plan that outline the environmental, economic and social objectives of the plan;61 prepare a statement of the environmental, economic and social values of the area to be covered by the plan;62 and have regard to other criteria specified by the Act, including, for example, IUCN reserve management principles, relevant state legislation and any matters protected under the EPBCA.63 Plans may regulate activities according to the designation of the [page 489] zone; for example, as scientific research, preservation, remote natural and various types of special management areas.64 12.19 Where a zoning plan provides that the permission of the authority is required for entry or other purposes, such as fishing or mariculture,65 the Regulations govern the process for applications and requirements for carrying out such activities.66 It is an offence to enter or use zones for other than permitted purposes,67 or to intentionally or negligently use or enter a zone for the purpose of fishing where that fishing activity is not permitted under the relevant zoning plan.68 In White v Patterson [2009] QCA 320, a commercial fisherman who had neither properly functioning instruments of navigation nor the skill to use them was convicted under this provision. His conduct exhibited such a degree of negligence and such a high risk, said the court, that it properly fell within the standards set by the Commonwealth Criminal Code s 5.5 for conduct constituting negligence and merited punishment for the offence.69

The dumping of spoil from dredging in the GBRMPA has been the subject of some contentious debate in relation to the proposed expansion of a coal terminal at Abbot Point.70 An approval in 2014 allowing up to 3 million tonnes of spoil to be dumped has now been wound back to no more than 15,000 tonnes.71 It is also an offence to intentionally or negligently discharge waste without permission, other than under certain conditions.72 There are also specific prohibitions on the unlicensed discharge of aquaculture waste into the ‘controlled area’, as defined under the Great Barrier Reef Marine Park (Aquaculture) Regulations 2000 (Cth),73 except under certain conditions. These restrictions and offences may be enforced by means of an injunction by the authority or ‘any person whose interests have been, are or would be affected by the conduct’.74 12.20 Recognition of the dangers to the reef from oil spills has led to the imposition of a scheme of compulsory pilotage on regulated vessels navigating in the compulsory [page 490] pilotage area of the Great Barrier Reef region.75 Exemptions may only be granted if the minister decides that navigating with a pilot would not improve environmental protection or pose a threat to the environment because the vessel was likely to remain stationary or in a limited area.76 The minister has extensive powers to prevent, mitigate or repair damage and remove structures, where reasonable grounds for suspecting an offence has been committed are in evidence, and to recover costs where a person has been convicted.77 12.21 In Queensland, there are special provisions designed to reduce the impact of agricultural activities on the quality of water entering the Great Barrier Reef.78 The restrictions apply to commercial sugar cane growing and cattle grazing, carried out in designated areas.79 The legislation requires that applications of fertiliser must comply with statutory conditions, including being in accordance with an accredited Environmental Risk Management Plan (ERMP).80 Non-compliance with an accredited ERMP may be the subject of a direction notice.81 Criteria for setting conditions of environmental authorities for various types of environmentally sensitive areas are also set out in the Regulations.82

Ramsar wetlands 12.22 A Ramsar wetland is an area of wetland designated by the Commonwealth under the Convention on Wetlands of International Importance art 2, especially as Waterfowl Habitat 1971 (the RAMSAR Convention),83 and included on the List of Wetlands kept under that Convention.84 The minister may also declare a specified wetland to be a declared Ramsar wetland if satisfied that the wetland is, or is likely to be, of international significance because of its ecology, botany, zoology, limnology or hydrology, and the ecological character of the wetland is under threat.85 Except where such threats are imminent, the minister must consult the states before making such a declaration, and attempt to reach cooperative arrangements for designation [page 491] and management of the wetlands.86 However, the validity of a declaration or status of a wetland is not affected by a failure to comply with these requirements.87 A declaration must not last longer than 12 months, but may expire sooner if the Commonwealth can determine within that period whether the wetland is of international significance and designate it under the Ramsar Convention.88 A declaration must be revoked if the wetland is determined not to be of international significance, or no longer under threat.89 Public notice of all submissions, inclusions, restrictions, withdrawals and exclusions must be included in the Commonwealth Gazette.90 Australia currently has 65 listed Ramsar sites covering around 8 million hectares.91 12.23 It is an offence to take an action that results or will result in a significant impact on the ecological character of a declared Ramsar wetland, unless otherwise authorised.92 A person is also liable to a civil penalty for taking such action, including taking action that is likely to have such an impact.93 In Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317, civil penalties totalling $450,000 ($150,000 for the individual, and $300,000 for a corporate offence) were imposed by the Federal Court on the respondent wheat farmer for unlawful clearance of part of a Ramsar wetland.94 In declaring that an action does not need approval, because it has been approved under a prior accredited authorisation process or management arrangement operating under Commonwealth law,95 the minister must be satisfied that the declaration is not inconsistent with Australia’s RAMSAR

Convention obligations; and that a declaration will promote management according to principles of Ramsar wetland management.96

Management plans 12.24 The requirements for making, implementing and complying with management plans for Ramsar wetlands, both within and outside Commonwealth areas, are similar to those applying to world heritage properties.97 State management plans and authorisation processes for Ramsar wetlands may be accredited under bilateral agreements and may allow for the declaration of actions that do not then need approval under the EPBCA Pt 9.98 Unlike world heritage properties, no criteria for [page 492] accreditation of plans are set out in the Regulations. Australian Ramsar management principles are, however, set out in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Sch 6.99

Biosphere reserves 12.25 A biosphere reserve is an area designated for inclusion in the World Network of Biosphere Reserves under the UNESCO100 Man and the Biosphere Program.101 This program is designed to support relationships between people and their environment; and the reserves are part of a global network for research and demonstration of the goals of sustainable development. A biosphere reserve includes one or more protected areas and surrounding lands that are managed to combine both conservation and sustainable use of natural resources.102 Currently, there are 14 of these reserves in Australia. The minister may make and implement a plan for a reserve within a Commonwealth area, and cooperate with a state or territory in implementing a plan103 that is consistent with Australian biosphere management principles, as set out in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Sch 7.104 The Commonwealth may provide financial assistance for management of reserves.105 The Commonwealth and its agencies are also instructed to take reasonable steps to exercise their functions in a way that is not inconsistent with the management principles or a management plan.106

Commonwealth reserves 12.26 Commonwealth reserves may be declared over areas of land or sea that are owned or leased by the Commonwealth, that are in a Commonwealth marine area,107 or that are outside Australia but in relation to which Australia has international obligations relating to biodiversity or heritage.108 Land may be acquired by the Commonwealth for this purpose, but if the land is already dedicated or reserved for conservation purposes under state or territory law, then the consent of that state or territory is required.109 [page 493] An intention to proclaim a reserve must be publicly advertised, comments considered by the director, and a report forwarded to the minister.110 Proclamations may be revoked or altered in accordance with the EPBCA.111 12.27 A reservation must identify the limits of the reserve and assign it an IUCN classification as one of the following:112 (1) a strict nature reserve — contains outstanding or representative ecosystems, geological or physiological features or species, and managed mainly for science; (2) a wilderness area113 — consists of a large area that is unmodified, or only slightly modified, by modern or colonial society, retains its natural character, and does not contain permanent or significant habitation. Managed for wilderness values; (3) a national park — an area in natural condition, managed mainly for ecosystem conservation and public recreation; (4) a natural monument or feature — contains a specific natural feature, or natural and cultural feature, of outstanding value because of its rarity, representativeness, aesthetic quality or cultural significance. Managed mainly for conservation of specific natural features; (5) a habitat/species management area — contains habitat for one or more species. Managed mainly for conservation; (6) a protected landscape/seascape — an area of land, with or without sea, where the interaction of people and nature over time has given the area a distinct character with significant aesthetic, cultural or ecological value. Managed mainly for conservation and recreation; or (7) a managed resource protected area — contains natural systems largely unmodified by modern or colonial technology. Managed mainly for

sustainable use of natural ecosystems. When a reserve is declared, a usage right held by the Commonwealth vests in the director.114 A usage right is an estate or a legal or equitable charge, power, privilege, authority, licence or permit.115 A usage right may be surrendered or changed without affecting the status of the reserve.116 When status as a reserve is revoked, then a usage [page 494] right held by the director vests in the Commonwealth, unless the right is a lease of Indigenous people’s land, in which case the right ceases to exist.117 Currently, there are 65 Commonwealth protected areas.118 These comprise six Commonwealth National Parks, 58 Commonwealth Marine Reserves and the Australian Botanic Gardens.

Management of reserves 12.28 A management plan must be prepared for reserved areas either by the director, or, if a board has been appointed, by the board in conjunction with the director.119 The minister must establish a board for any reserve that is wholly or partly on Indigenous people’s land, if the local land council or traditional owners agree.120 The board’s role is to make management plans and decisions in conjunction with the director.121 A majority of board members must be Indigenous people nominated by traditional owners.122 12.29 Australian IUCN reserve management principles for each management category have been prescribed by the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Sch 8.123 A plan must not be inconsistent with these principles.124 The EPBCA also mandates the considerations that must be taken into account in preparation of a management plan125 and the content of a management plan.126 A proposal to prepare a draft plan and the draft plan itself must be publicly advertised and comments duly considered.127 A management plan must be approved by the minister, but only if the reserve board agrees.128 The maximum life for a management plan is seven years.129 12.30 The Act also specifies that certain activities may only be carried out in accordance with a management plan. These include taking native species, and carrying out building and other works, and undertaking commercial activities.130 For example, in Minister for the Environment and Heritage v Wilson [2004] FCA 6, the respondent set a net in the Great Australian Bight Marine Park and caught a shark, contrary to EPBCA s 354(1). The respondent

knew that he was close to the border of the park and knew there was a risk that his vessel might drift into the park, but did not know that in [page 495] fact his vessel had done so. The maximum penalty under this provision is $55,000; the respondent was ordered to pay a pecuniary penalty of $12,500. In Minister for Environment and Heritage v Warne [2007] FCA 599, the respondent was the skipper of a vessel that carried out commercial fishing within the boundaries of a reserve contrary to EPBCA s 354(1)(a) and (f). While inside the boundaries, the vessel took a species of fish classified as a native species under the EPBCA. The respondent was ordered to pay a pecuniary penalty of $25,000. In Minister for the Environment v Karstens [2015] FCA 649 the defendant was fined $45,000 for conducting commercial hand-lining activities within a Commonwealth marine reserve and restrained for re-entering the area for five years.131 12.31 The director must give effect to a management plan and the Commonwealth and its agencies must not act inconsistently with a plan.132 The Act makes provision for resolving disputes between Indigenous land councils or reserve boards and the director over implementation of management plans,133 and between the director and reserve boards over the content of a management plan.134 In the absence of a management plan, the director must manage the reserve in accordance with the IUCN reserve management principles135 (although prior existing uses may be permitted subject to these principles),136 and may undertake activities relating to protection of the reserve and biodiversity, management and scientific research.137 However, in a wilderness area these may only be carried out if the Proclamation specifies them.138 12.32 Activities that are controlled or may be authorised in Commonwealth reserves are prescribed in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Pt 12. These include, for example, regulation of both commercial and recreational fishing, damaging or defacing features, taking flora and fauna into a reserve, and adventure activities. Taking any unauthorised action in a Commonwealth reserve that results in the injury or death, or trading in, native species, or damage to heritage, is an offence of strict liability.139 12.33 Mining operations may only be carried on in Commonwealth reserves if approved by the Governor-General and carried on in accordance

with a management plan.140 Mining is generally prohibited in Kakadu National Park141 and in Antarctica.142 [page 496] 12.34 Usage rights in relation to land or seabed that existed immediately before reservation, however, will not be affected by a reservation, although such rights may be extended or renewed only with the consent of the minister.143 There are also savings for the traditional use of reserved areas by Indigenous persons for non-commercial hunting and food gathering, and ceremonial and religious purposes. However, these provisions will be affected by regulations made for the purpose of conserving biodiversity that expressly affect the traditional use of the area.144 There are also special rules that apply to the Kakadu region,145 the Uluru region,146 and the Jervis Bay Territory, providing in particular for extra involvement of Indigenous people in planning processes, planning for townships, and regulating mining and other activities in the Kakadu National Park.147

Commonwealth heritage places 12.35 Commonwealth locations, areas and regions of natural, cultural or Indigenous heritage significance (including those outside the Australian jurisdiction owned or leased by the Commonwealth),148 may be nominated by a person for inclusion on the Commonwealth Heritage List.149 Working on a 12-month cycle (which generally begins once the minister has determined which places should be assessed), the minister will ask for nominations.150 The nominations will then be referred to the Australian Heritage Council (AHC).151 Since the minister may only include places on the list that the minister is satisfied contain Commonwealth heritage values,152 nominations should take this into account at the outset. The AHC will then advise the minister of a list of places (proposed [page 497] priority assessment list) it believes are eligible for and should be assessed for listing.153 The minister will finalise the list, which will then be advertised for public comment.154 The AHC then reassesses the proposed listings in the light of public comments and the reactions of owners or occupiers of places that are considered to have Commonwealth heritage values, and gives its assessments to the minister,155 who then makes the final determination

whether places should be listed.156 Places that are under threat may be subjected to an emergency assessment and listing process.157 Within 12 months of listing, the minister must then make a decision whether any place listed under this process should continue on the list.158 The Act also makes provision for removal of places from the list.159

Management plans 12.36 Commonwealth agencies must make management plans and strategies to identify, protect and manage the heritage values160 of Commonwealth heritage places that they own or control.161 Criteria for management plans162 and agency strategies,163 and Commonwealth heritage management principles,164 are prescribed by the Regulations. The Commonwealth and Commonwealth agencies must not allow contravention of those plans.165 A Commonwealth agency is instructed not to take an action that is likely to have an adverse impact on the heritage values of a Commonwealth heritage place, unless there is no feasible and prudent alternative and that all measures that can reasonably be taken to mitigate the impact of the action on those values are taken.166 This includes obligations for protecting heritage values on sale or lease of the property.167 There are currently 396 places on the Commonwealth Heritage List, though most have been nominated for cultural heritage reasons (for example, defence establishments, lighthouses, residences and post offices), not for biodiversity protection.

Overseas places of historic significance to Australia 12.37 The purpose of this inclusion is so that Australia can recognise and celebrate those overseas places of outstanding historic significance to the development of [page 498] the nation in a way that is respectful of the rights and sovereignty of other nations.168 There are currently three places on this list, including Anzac Cove and the Kokoda track.

National heritage places 12.38 Similar provisions and processes for assessment and listing are in place under the EPBCA for the National Heritage List as govern

Commonwealth Heritage Places.169 The differences relate mainly to places of national heritage that are controlled by the states and territories, not by Commonwealth agencies. In this event (which, of course, would be the majority of places) the Commonwealth must ‘use its best endeavours’ to ensure a management plan,170 that is not inconsistent with the National Heritage Management Principles,171 is prepared and implemented in cooperation with the state or territory.172 Criteria for accreditation of management plans are similar to those set out for world heritage properties.173 Currently, there are only 24 properties on the National Heritage List, all protecting cultural and Indigenous rather than biodiversity values.

Conservation agreements 12.39 Conservation agreements174 may be made with any person for the purpose of enhancing the conservation of biodiversity outside Commonwealth reserves.175 An agreement must result in a ‘net benefit’176 to the conservation of biodiversity and not be inconsistent with a recovery plan, threat abatement plan, or wildlife conservation plan.177 Before entering into such an agreement the minister must take into account certain provisions of the Biodiversity Convention, as well as the National Strategy for the Conservation of Australia’s Biological Diversity.178 The content of a conservation agreement is not prescribed, but examples of the general content of such agreements are contained in the legislation.179 Agreements may be made for purposes of remediation or mitigation where a breach of the Act may have occurred;180 and may give approval to actions that would otherwise need approval under the Act.181 [page 499] Conservation agreements are binding not only on the person who entered into the agreement but also on successors to any interest of such a person.182 Agreements may be varied or terminated by agreement between the persons bound by the agreement or as otherwise specified in the agreement.183 Agreements may also be varied or terminated unilaterally by the minister, without compensation, if they are not achieving the purpose for which they were made.184 Lists of conservation agreements in force must be made publicly available with details of the agreement, unless publication of such details might result in harm to biodiversity or would disclose matters that are commercial-in-confidence.185 Seventeen agreements are currently listed.186

Conservation zones 12.40 The purpose of a conservation zone is to provide for the protection of biodiversity, other natural features and heritage, while they are being assessed for inclusion in a Commonwealth reserve.187 Regulation of activities in conservation zones is prescribed by the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) reg 13.02, which applies many of the same controls as apply to Commonwealth reserves, as set out in Pt 12,188 though prior usage rights will generally be protected.189 Conservation zones have been declared for the Coral Sea and the Tunami Desert in the Northern Territory.

Access to biological resources in Commonwealth areas 12.41 Access to biological resources (which includes genetic resources, organisms, parts of organisms, populations and any other biotic component of an ecosystem with actual or potential use or value for humanity),190 for both commercial or non-commercial purposes, in Commonwealth areas,191 is regulated by the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Pt 8A. ‘Access’ means the taking of biological resources of native species for research and development on any genetic resources, or biochemical compounds, comprising or contained in the biological resources;192 and will not therefore include most activities carried out by Indigenous peoples, or activities such as fishing for commerce or recreation, collecting [page 500] broodstock for aquaculture; harvesting wildflowers; taking wild animals or plants for food; collecting peat or firewood; taking essential oils from wild plants; collecting plant reproductive material for propagation; or commercial forestry.193 A permit is required for access,194 plus, for commercial purposes, a benefitsharing agreement195 concluded with the ‘access provider’.196 A benefitsharing agreement must provide for reasonable benefit-sharing arrangements, including protection for, recognition of and valuing of any Indigenous people’s knowledge to be used.197 Agreements with native titleholders are subject to ‘informed consent’ provisions.198 An application for access must be assessed by public notice if the minister believes, on reasonable grounds, that

the proposed access to biological resources is likely to have more than negligible environmental impact.199

State and territory protected areas Introduction 12.42 The vast majority of land acquired for parks and reserves in the states and territories is Crown land. Parks and reserves on Crown land are either recommended by the relevant minister, and proclaimed by the Governor for such purposes, subject in some cases to parliamentary approval, or national parks may be declared by legislation, as, for example, in Victoria. A decision to declare a protected area is not one that is likely to be examinable by judicial review, as it is essentially a matter of public policy.200 Withdrawal of land from use as a national park may also require parliamentary approval. Although legislation invariably allows for the possibility that privately owned lands may be acquired by compulsory acquisition, in practice, agreement by way of a voluntary conservation or property agreement or covenant, or by gift, lease, or dedication for conservation purposes, is the favoured method of securing private land.201 [page 501] 12.43 The objects of reservation are much the same in all states and territories: the protection of flora and fauna and natural features; the provision of recreational facilities; and for educational, scientific and research purposes. The administrative structure is also very similar. The legislation is administered by a director or similar within a national parks and wildlife service or similar authority. The director may be instructed by the relevant minister who is advised by some sort of general or site-specific advisory committee composed of interested members of relevant government departments and authorities, conservationists, scientists and other members of the public. The functions of the authority generally include: the initiation of policy planning in existing parks and reserves; advice on the acquisition of new areas;

the facilitation of research and public education programs; the control of development within parks; the protection of the natural features of the area and its wildlife; and management of public access. Regulations that assist the carrying out of these functions may be made by the Governor. These commonly include provisions for the regulation of conduct within parks, the setting of fees for access, the provision of permits for the taking of flora and fauna, the use of vehicles, the prohibition of nuisances and the control of grazing by domestic animals. These regulations, and the provisions of the legislation in general, are enforced by authorised officers, who are commonly known as rangers or wardens. Such officers have wide powers of arrest, seizure and detention, of persons and property, so long as they act on reasonable grounds. Rangers and other officers are usually given identification cards that they may be asked to produce before exercising any of their powers.

Australian Capital Territory 12.44 Public land may be reserved by the Territory Plan, for a variety of conservation purposes, including national parks, nature reserves and wilderness areas.202 The purpose of these reservations may be determined by the management objectives.203 The objectives for national parks and nature reserves are exactly the same; that is, to conserve the natural environment and provide for public recreation, education and research.204 Wilderness areas extend these objectives to minimal disturbance and provision for solitude.205 [page 502]

New South Wales 12.45 Land may be reserved in New South Wales under the National Parks and Wildlife Act 1974 (NSW) (NPWA) for a wide variety of purposes, including the creation of national parks, state conservation areas and nature reserves.206 The purpose of reservations for each category is spelt out in the legislation.207 The purpose of reserving land as a national park, for example, is ‘to identify, protect and conserve 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’.208 The purpose of a nature reserve is ‘to identify, protect and conserve areas containing outstanding, unique or representative ecosystems, species, communities or natural phenomena’.209 The creation of national parks and nature reserves from land that was formerly Crown lands or state forest, has also been declared under the Forestry and National Park Estate Act 1998 (NSW).210 12.46 The identification, declaration and management of wilderness is undertaken under the provisions of the Wilderness Act 1987 (NSW). Declarations of wilderness areas may be made in respect of any land reserved or dedicated under the NPWA or the subject of a wilderness protection or conservation agreement under the Wilderness Act.211 An area of land may not be identified as wilderness unless the director is of the opinion that: (a) the area is, together with its plant and animal communities, in a state that has not been substantially modified by humans and their works or is capable of being restored to such a state; (b) the area is of a sufficient size to make its maintenance in such a state feasible; and (c) the area is capable of providing opportunities for solitude and appropriate self-reliant recreation.212 Rivers that run through any lands reserved under the NPWA may also be declared wild rivers.213 12.47 Conservation agreements may be entered into with private landholders that may become binding on successors in title and may provide financial or other assistance to the landowner.214 The Nature Conservation Trust is also empowered to [page 503] generate a ‘revolving fund scheme’ that allows the trust to purchase land and arrange for a covenant to protect heritage values, before selling or leasing that land.215 Where areas of land have significant natural values, but have not yet been reserved, temporary protection may be afforded by an interim protection order.216 These may only last for up to two years, which should be long enough to determine whether formal reservation is necessary or can be achieved.

Queensland 12.48 The Nature Conservation Act 1992 (Qld)217 declares that the object of nature218 conservation219 is to be achieved by an integrated and comprehensive conservation strategy220 that involves protection of areas representative of biological diversity,221 natural features and wilderness,222 protection of the biological diversity of native wildlife and its habitat, ecologically sustainable use223 of protected wildlife, and community education and consultation.224 Protected wildlife is to be managed, among other things, by conserving critical habitat.225 12.49 ‘Protected areas’ in Queensland are defined by reference to their management objectives.226 National parks are to provide permanent preservation of the area’s natural condition and protect cultural and natural resources and values. Any use of the area must be nature based and ecologically sustainable.227 National parks (recovery) are to provide for restoration of the conservation values of the park, with a view to its ultimate dedication as a national park.228 National parks (scientific) are to protect exceptional scientific values and biological diversity while allowing for controlled scientific study and monitoring of the natural resources of the area.229 National parks (Aboriginal land) [page 504] and national parks (Torres Strait Islander land) are to protect Aboriginal tradition and Torres Strait Islander custom.230 Conservation parks231 are similar to national parks, except that they provide for ‘conservation’ rather than ‘preservation’ and ‘protection’. They contemplate commercial use, on a sustainable basis, of the area’s natural resources, particularly by fishing and grazing. Resources reserves are to protect cultural and natural resources ‘if appropriate’ and provide for controlled use while maintaining the area in a predominantly natural condition.232 Nature refuges conserve significant natural resources and allow for controlled use while taking into account the interests of landholders.233 Coordinated conservation areas are to conserve natural and cultural values by coordinated management with landholders while also taking into account the maintenance of landholders’ interests and commercial, recreational and educational values.234 Wilderness areas are to protect and restore wilderness values and capacity

for evolution while providing opportunities for solitude and appropriate selfreliant recreational and spiritual activities.235 World heritage management areas protect internationally outstanding cultural and natural resources and biological diversity for transmission to future generations.236 International agreement areas maintain areas of importance to nature conservation that are of international concern and conserve native wildlife habitat while providing for the interests of landholders to be taken into account.237 Recreation areas may be declared under the Recreation Areas Management Act 2006 (Qld).238 The objectives of this Act are, among other things, to integrate and improve recreational planning and management, taking into account recreation, conservation, commercial and other relevant values.239 Declarations of Wild River Areas used to be made under the provisions of the Wild Rivers Act 2005 (Qld).240 The purpose of this Act was to preserve the natural values of rivers that had all, or almost all, of their natural values intact.241 This Act has now been repealed, and wild river declarations replaced by ‘strategic environmental areas’ under the Regional Planning Interests Act 2014 (Qld). Strategic environmental areas are areas that contain one or more environmental attributes, as identified under a regional [page 505] plan or regulation.242 To undertake development in such areas, a proponent must hold a regional interests development approval243 unless otherwise exempted.244

Northern Territory 12.50 Under the Territory Parks and Wildlife Conservation Act 1976 (NT), areas of land may be set aside for the preservation of natural features and wildlife as parks, reserves, or sanctuaries.245 Areas will be managed by the Parks and Wildlife Commission, established under the Parks and Wildlife Commission Act. Agreements for the protection and conservation of wildlife and natural features may be entered into with private landowners for whom financial assistance may be made available.246 The purpose of the intriguingly named Parks and Reserves (Framework for the Future) Act 2003 was to ‘provide a framework for negotiations between the territory and the traditional Aboriginal owners of certain parks and reserves for the establishment,

maintenance and management of a comprehensive system of parks and reserves’.247 The powers given to the chief minister under this Act included the conclusion of Indigenous land agreements, joint management arrangements, and conferment of freehold title and creation of leases in respect of parklands.248 The powers of the chief minister expired in February 2005,249 and the provisions of this Act have since been incorporated in the Territory Parks and Wildlife Conservation Act 1976 (NT).250

South Australia 12.51 Protected areas may be declared under the National Parks and Wildlife Act 1972 (SA), either by the statute itself (constituted reserves) or by proclamation.251 Protected areas that are constituted are listed in Schs 3–6 of the Act. Otherwise, protected areas may be established by proclamation. National parks may be proclaimed in respect of Crown land that the Governor ‘considers to be of national significance by reason of the wildlife or natural features of those lands’.252 Conservation parks are those that ought to be protected or preserved for the purpose of conserving any wildlife or the natural or historic features of those lands.253 Regional [page 506] reserves are declared for similar purposes but, at the same time, permit utilisation of the natural resources of that land.254 Wilderness protection areas and wilderness protection zones are areas of Crown or, by permission, private land,255 that meet the wilderness criteria256 to a sufficient extent to justify protection as, or restoration to, wilderness, or enable buffer zones or boundaries to be adopted to enable wilderness protection.257 To protect human life or wildlife, any portion of a wilderness protection area or zone may be declared a prohibited area;258 and certain activities are prohibited without permission.259 Heritage agreements may also be made with private landowners under the Heritage Places Act 1993 (SA).260 State Heritage Places listed under this Act may be designated and protected as places of geological, paleontological, archaeological or speleological significance.261

Tasmania

12.52 Under the Nature Conservation Act 2002 (Tas), public land may be reserved in a number of categories, which include national parks, state reserves, nature reserves, game reserves, conservation areas, nature recreation areas, regional reserves, and private sanctuaries and nature reserves.262 The criteria governing such classifications are set out in Sch 1 of the Act. Management agreements and conservation covenants may also be entered into with private landowners.263 Management is implemented under the National Parks and Reserves Management Act 2002 (Tas).

Victoria 12.53 In Victoria, under the National Parks Act 1975 (Vic), reserved areas are specified by the Act and classified as national parks, state parks, wilderness parks and other parks.264 Wilderness zones and remote and natural areas may also be designated.265 [page 507] Although there are no definitions as such, the differences appear to be inherent in the management objectives imposed on the secretary266 under Pt III of the Act. Parks Victoria was established under the Parks Victoria Act 1998 (Vic) to provide management services to government inter alia for management of reserves; and the secretary may enter into an agreement with this body for management purposes.267 Special provision has also been made for the development and management of alpine areas. A declaration of any Crown land (other than a national park) as an alpine resort may be made by the Governor-in-Council under the Alpine Resorts Act 1983 (Vic), with respect to any places specified in the Schedule to the Act.268 Management of alpine areas is then undertaken by management committees under the Alpine Resorts (Management) Act 1997 (Vic). The Heritage Rivers Act 1992 (Vic) also allows for the declaration of heritage river areas and natural catchment areas for particular parts of rivers and river catchments that have significant natural, scenic, recreational or cultural attributes. Areas so declared are listed in Schs 1 and 2 of the Act. Wildlife reserves of various types may also be created under the Wildlife Act 1975 (Vic). State wildlife reserves may be created by private gift where the secretary, with the minister’s approval, accepts a parcel of land from a donor who wishes it to be set aside for wildlife preservation or propagation or the

preservation of wildlife habitats.269 These reserves may be further classified, for example, as state game reserves or faunal reserves, among others.270 Nature reserves are those areas of public land set aside for other purposes but management of which is entrusted to the secretary.271 12.54 In addition to wildlife and nature reserves, the Governor-in-Council, on the recommendation of the minister, may also declare wildlife management cooperative areas, prohibited areas and wildlife sanctuaries.272 Prohibited areas may only be declared in relation to Crown lands and are designed to protect the habitats of specified species of wildlife.273 Entry to such areas is prohibited without permission. Land Management Co-operative Agreements may also be made under the Conservation, Forests and Lands Act 1987 (Vic) with private landowners, relating to the preservation, conservation and management of land, and to encourage them to follow good land management practices.274 Part of the land covered by such an agreement may become a flora and fauna sanctuary, in which case it will be managed under the [page 508] Wildlife Act 1975.275 Agreements may be expressed to be binding on successors in title, and may entitle the landowner to financial assistance and rate relief.

Western Australia 12.55 The reservation of land for public purposes is authorised under the Land Administration Act 1997 (WA) Pt 4.276 Class A reserves are reserved for purposes specified by order.277 They may be reserved as national parks, conservation parks or nature reserves, within the meaning of the Conservation and Land Management Act 1984 (WA).278 Reserves are managed by the Conservation Commission, either alone or jointly with some other body.279 Land vested in the commission may then be further classified by the minister as, for example, wilderness, prohibited, limited access, temporary control,280 or recreation areas or such other class of area as is considered necessary to give effect to the objects of the Act.281

Marine and aquatic reserves 12.56 The development and monitoring of marine and coastal reserves is

one of the key recommendations of the Conference of the Parties of the Biodiversity Convention.282 The National Representative System of Marine Protected Areas (NRSMPA),283 and consequential management plans, came into operation in July 2013, covering nearly 40 per cent of the Commonwealth marine area. The NRSMPA does not however apply to marine areas where mining and gas exploration leases have been granted, such as off the coast of Western Australia. Many of the protected areas are also zoned for multiple uses. The Australian State of the Environment Report 2011 concludes that: … [i]n the absence of a system of national marine standards for ecosystems and biodiversity, or an integrated framework of national marine management that could be used to apply such standards, the marine environment is destined to be continually rebalanced in a downward direction.284

[page 509] 12.57 Commonwealth reserves (see 12.25) may be declared285 over Commonwealth marine areas.286 Australian IUCN reserve management principles287 are prescribed in the Regulations.288 12.58 Although the Commonwealth has constitutional sovereignty over coastal waters,289 the terms of the offshore constitutional settlement between the Commonwealth and the states effectively means that Commonwealth reserves will be declared from three to 200 nautical miles from the Australian coastline,290 while the states may declare marine reserves within an area three nautical miles from the coastline. State marine reserves may be declared in the same way as terrestrial reserves or they may be declared under fisheries or other specific legislation. 12.59 In New South Wales, marine parks and aquatic reserves291 may be proclaimed or declared under the provisions of the Marine Estate Management Act 2014 (NSW),292 though the consent of landowners (public and private) is required for any land to be included in a declaration.293 A declaration of a marine park over the same area as an aquatic reserve will revoke a declaration of an aquatic reserve.294 12.60 A declaration of a marine park will not affect any existing aquaculture permit or lease, though the permit or lease may not be extended or renewed unless the regulations provide that aquaculture is permissible in the relevant area.295 A declaration of an aquatic reserve is not affected by existing interests.296 12.61 A marine estate management strategy must set the vision and

priorities for the marine estate;297 and periodic threat and risk assessment must be carried out.298 Management plans must be prepared for each marine park; and may be prepared [page 510] for aquatic reserves.299 Management rules may also be set out in regulations.300 Management rules and plans must be taken into account by consent authorities evaluating applications for development consent under the Environmental Planning and Assessment Act 1979 (NSW) (EPAA).301 12.62 In Queensland, marine reserves may be declared under the Marine Parks Act 2004 (Qld),302 and then divided into zones for particular purposes and managed accordingly.303 A Great Barrier Reef Coast Marine Park is administered by Queensland under this Act. In Alliance to Save Hinchinbrook v Chief Executive, Environmental Protection Agency [2006] QSC 84, which concerned an application to build breakwaters that would intrude into the park, the respondent seemed to admit (at [55]) the danger of ‘incremental creep’ by acknowledging that ‘the amenity of the area was already diminished by reason of the well established and visually intrusive facilities of the Port Hinchinbrook development’, and apparently using this as some justification for allowing further development with possible adverse impacts. Under the Fisheries Act 1994 (Qld), areas may also be declared to be fish habitat areas, in which marine plants will be protected, works controlled, and restoration of habitat adversely affected by pollution may be required.304 Management and restoration of these areas may be governed by management plans.305 12.63 In South Australia, marine parks may be established under the Marine Parks Act 2007 (SA)306 and divided into zones and special purpose areas307 for management.308 Management of marine parks is to be governed by the management plan.309 Aquatic reserves may also be created under the Fisheries Management Act 2007 (SA) ‘to protect, manage, use and develop the aquatic resources of the State in a manner that is consistent with ecologically sustainable development’ (ESD).310 [page 511] 12.64 In Tasmania, marine resources protected areas may be declared under the Living Marine Resources Management Act 1995 (Tas),311 subject to prior preparation and public exhibition of a draft management plan.312 Habitat protection plans may also be prepared, for example, for the protection

of spawning areas.313 Rules may also be made by the minister that, for example, prohibit or regulate fishing in such areas.314 12.65 In Victoria, fisheries reserves may be created under the Fisheries Act 1995 (Vic) over areas not otherwise reserved under the National Parks Act 1975 (Vic).315 A reserve may, for example, be declared because it is critical habitat or because it is a spawning area.316 A committee of management may manage the reserve317 and a management plan must be prepared.318 12.66 In Western Australia, the Conservation and Land Management Act 1984 (WA), makes provision for the creation of marine nature reserves, marine parks and marine management areas.319 A reservation of a marine nature reserve shall be for the conservation and restoration of the natural environment and protection, care and study of indigenous flora and fauna.320 Commercial and recreational fishing are not allowed without permission in these reserves.321 By contrast, in a marine park, recreational and commercial activities that are consistent with those same objects are permitted and further classification of parts as, for example, sanctuaries or recreation areas will emphasise the management objects of the various zones. Marine management areas are essentially multiple use areas, reserved for the purpose of managing and protecting the marine environment so that they may be used for conservation, recreational, scientific and commercial purposes.322

Forest reserves Power to reserve parts of public forests for nature conservation, which would otherwise be available for commercial logging operations, is common of forestry and sometimes other legislation in most states.323 In such cases, management is usually [page 512] undertaken by the forestry authorities, but preparation of management plans may be a joint task with the appropriate conservation authority,324 or will at least be governed by conservation principles.325 In New South Wales any area of state forest (other than a flora reserve) may be declared to be a special management zone if the minister is satisfied that the area has special conservation value.326 The prohibition or restriction of forestry operations in such a zone is intended to protect its special conservation value.327 In Queensland, reservations may be made under the Nature Conservation

Act 1992 of any state forests, timber reserves or Land Act reserves for interim protection of areas that it is intended to convert to protected area status as soon as possible.328 The reserve must then be managed to protect biodiversity values, though existing interests, such as agriculture, grazing and mining, may continue.329 The objectives of managing state forests, even where not part of a conservation reserve, generally recognise the importance of forests as habitat for wildlife and require conservation to be an important consideration for forest management. 330 However, outside reserved or special management areas, such objectives will usually be subject to the requirements of normal forestry operations.331 For further discussion on forests see 18.68.

Management of reserves 12.67 The purpose for and conditions on which land is acquired and classified will be reflected in the management policies of the relevant authorities. Management objectives for protected areas will be determined by the categorisation of the reserve. Legislation will generally specify management objectives for each classification,332 [page 513] but otherwise the management authority may do so.333 These objectives will then be reflected in a management plan for the reserve. This plan will be the basic strategic planning tool334 for the protected area and will govern the exercise of discretion of the managing authority.335 The preparation of management plans is usually a statutory obligation and the procedures to be followed are indicated by the legislation.336 Draft management plans are usually published for public review and comment before the final version is approved.337 12.68 It is now widely recognised that the cultural interests of Aboriginal and Torres Strait Islander peoples in protected areas must also be respected and reflected in management policies.338 Further, the effective and sustainable management of land and resources is greatly enhanced by combining Aboriginal knowledge with bureaucratic objectives. Indeed: … when the traditional custodians are removed from the land, the existing biodiversity deteriorates … Aboriginal people do not perceive the need to isolate land for the special purpose of protection. The existing diversity of species and ecosystems in Australia is the result of continued Aboriginal management practices in accordance with their Law. While it is

documented that the initial impact of Aboriginal people on the biological diversity of the continent was significant, the newcomers forged a balance between use and sustainability that colonising cultures are yet to understand.339

Statutory provisions for co-management agreements have, for example, been made under the Nature Conservation Act 1992 (Qld)340 and the Territory Parks and Wildlife [page 514] Conservation Act (NT).341 In the Northern Territory, traditional Aboriginal owners of reserved areas are recognised as joint management partners, that is, jointly responsible for management of parks and reserves.342 Co-management through agreements with Aboriginal groups is also a declared objective of the National Parks and Wildlife Act 1972 (SA).343 The National Parks and Wildlife Act 1974 (NSW) (NPWA) Pt 4A recognises land that is of cultural significance to Aboriginal people, and provides for the vesting of that land in an Aboriginal land council with subsequent lease-back arrangements to the minister and dedication as a protected area.344

Development in reserved areas 12.69 In the past, land set aside for national parks and other reserves has tended to be Crown land not otherwise required for agriculture, mining, forestry or other commercial purposes. Today, a reserved area is just as likely to include resources capable of economic exploitation. In general, it may be said that development in protected areas is restricted, but not totally prohibited, except for activities that may be incompatible with the purpose of the reservation, such as forestry operations, mining and agriculture. If not totally prohibited, activities may be effectively prohibited by requiring parliamentary, rather than ministerial or regulatory, approval. For example, under the National Parks and Wildlife Act 1974 (NSW) (NPWA), it is unlawful to prospect for or to mine minerals in national parks, nature reserves and historic sites without express parliamentary approval.345 Mining operations (which may now also include greenhouse gas storage)346 are, in fact, often totally prohibited in a wide range of protected areas,347 but otherwise, reserves are often managed for multiple uses (conservation and exploitation), which means that management plans may allow for mining, forestry and other operations.348 A declaration of a reserved area may itself outline permissible and impermissible activities, and stipulate licensing obligations.349 [page 515]

One way to allow for future mining operations is to limit the extent of the reservation to the surface only. For example, under the Forestry Act 1916 (NSW), a dedication of land as a flora reserve may be limited so as to exclude any land lying below the surface of the land dedicated at a depth greater than a depth specified in the notice dedicating the land.350 This means that while the surface of the land may be protected as a flora reserve, the land beneath may still be used for extracting minerals or for other purposes. 12.70 One problem that multiple use brings, of course, is the possibility that two or more government authorities may be responsible for management of the area; for example, a national parks and wildlife authority and a mining or forestry department. The management of reserves can also clash with commercial interests that operate within such reserves; for example, commercial fishing in marine reserves. This may trigger a need for statutory interpretation to determine the relationship between different management regimes. One way to cope with this potential is for the legislation to specify that the agreement of another interested party, be it a public authority or private landowner, will be required before a plan can become effective.351 It can also be specified that where there is a clash of management interests, the provisions of a specific plan, for example for forests management,352 will prevail. A slightly more controversial approach is for parliament to enact special legislation that applies to the management of specific areas, in which the responsibilities of the interested parties are detailed. This is the approach adopted, for example, by the Forestry and National Park Estate Act 1998 (NSW). According to the Act, once an agreement about management of forest areas has been concluded between ministers representing forestry, environment protection and conservation objectives, regulatory regimes for environmental planning and assessment, for the protection of the environment and for threatened species conservation will be governed by the terms of this Act rather than the terms of other legislation.353 12.71 A more controversial approach still is for a management authority to simply ignore the problem and not seek to enforce the provisions of its own regime in disputed areas. For example, in Birri Gubba v Queensland [2003] FCA 276 at [51], Drummond J in the Federal Court referred to a national parks regulator ‘turning a blind eye’ to commercial fishing in national parks for a considerable period of time: The undisputed evidence of Griggs, Porter and Souter also establishes that, for many years, fishermen, including commercial fishermen like Griggs and Porter, have fished waters within

national parks. I do not think it possible to infer, in the face of this evidence, that the national parks authorities charged with enforcing (s 62 of the Nature

[page 516] Conservation Act 1992 (Qld) (NCA)) have remained, since 1994, in a state of ignorance about what Griggs, Porter and Souter say are quite widespread and regular activities by commercial fishermen. Though at least since the coming into force of s 62 of the NCA, there has been in place what the State contends is a prohibition against that activity, a prohibition reinforced by criminal sanctions, there is no suggestion in the material before me that there has been a single prosecution of a fisherman claiming the right to fish national park waters by force of a fisheries licence, which on its face gives him that right. The entire absence, so far as the evidence before me reveals, of any action by the EPA to enforce s 62 the NCA over the past eight years against licence holders commercially fishing in national parks against the background of Souter’s evidence and the views expressed by the Minister responsible for the administration of the NCA in the Queensland Parliament as to just what fishing should be permitted within national parks suggests that a deliberate policy of non-enforcement of s 62 against commercial fishermen has to date been adopted, at least by the EPA.

12.72 Determining priorities for management will really depend, however, on how important are the conservation imperatives, and in appropriate cases these may be given precedence. For example, in Victoria, under the Heritage Rivers Act 1992 (Vic), constructions that impede or divert water flow must be approved in heritage river areas. Cattle are not allowed in specified reserves;354 and timber harvesting is prohibited in designated areas.355 In natural catchment areas, a significant range of land and water uses is prohibited. These include clearing of indigenous flora, timber harvesting, mining, grazing, discharge of effluent, introduction of non-indigenous fauna, construction of water works and use of powered watercraft.356 These restrictions prevail over inconsistent provisions in other legislation and govern managing authorities’ responsibilities under the Act.357 Similarly, in Queensland, a declaration under the Wild Rivers Act 2005 (Qld) will introduce further planning considerations into the evaluation applications for development that might impact on wild river areas.358 Proposed development that is adjacent to a protected area will need to be managed to take account of potential impacts on the reserved area and its amenity values.359 12.73 Permitted development in protected areas is generally of two sorts: development of tourist facilities and the provision of services for visitors, and construction works undertaken by regulatory authorities. Both types of development should have in common the furtherance of the objects of protected area management and are, therefore, permitted in all states subject to control by the appropriate authority. Such development, [page 517]

however, usually has to be provided for in the management plan for the reserve. The plan itself will have to reflect the management principles or objectives of the reservation.360 In New South Wales, for example, the minister may grant leases or licences for the purpose of providing tourist facilities in parks and historic sites, including the erection of hotels, and for other purposes compatible with the use of such areas consistent with any management plan currently in force.361 The director may also grant licences for the carrying on of any ‘trades, businesses or occupations’ within a national park.362 12.74 It has been pointed out by the court on several occasions, however, that the exercise of this type of power is constrained by the nature, purpose and scope of the Act under which it is derived, and could, therefore, only be used to promote activities related or ancillary to the use, protection and enjoyment of the reserved area.363 Accordingly, in Woollahra Municipal Council v Minister for Environment (1991) 23 NSWLR 710, the use of part of a national park to conduct the operations of a private college could not be brought within the ambit of the minister’s powers merely by reason of the fact that the activity would produce funds that could be used to improve facilities in the park. Similarly, in Packham v Minister for Environment (1993) 80 LGERA 205, a grant of a licence for vehicular access to private landlocked property through a national park, in exchange for a fee and a land transfer, was essentially for private purposes.364 Any incidental benefits to the national park did not alter the fundamental character of the grant. In Willoughby City Council v Minister Administering the National Parks & Wildlife Act (1992) 78 LGERA 19, a lease of land on the foreshore of Sydney Harbour to facilitate private catering functions was also held to be beyond the powers conferred by the Act because it did not promote the use of the national park for purposes of public recreation; while in Blue Mountains Conservation Society Inc v Director-General of National Parks and Wildlife (2004) 133 LGERA 406, consent to commercial filming and associated activities in a zone of a national park dedicated to wilderness protection was also held to be beyond the powers of the minister. 12.75 New reservations, of course, often catch within the boundaries of the reserve various economic enterprises that were operating before the reservation was made. Like planning scheme amendments that suddenly change the status of activities from permitted to non-conforming uses, it is not possible simply to bring all such operations to an immediate halt. The usual way of dealing with existing interests is to provide that

[page 518] they are not to be affected by the reservation. However, they may not be renewed or extended without permission,365 unless they are major resource developments, such as mining, forestry or fisheries operations, that may continue to be unaffected by the reservation.366 Sometimes, however, the purposes of reservation are so imperative that existing interests may be prohibited or at least seriously restricted. In this event claims for compensation may be hard to resist.367

Offences and enforcement 12.76 Offences and penalties, particularly with regard to conduct in reserved areas and the protection of natural features and wildlife from harmful activities, are usually prescribed by legislation or are the subject of regulations passed under the authority of the relevant Act.368 Offenders may be subject to remediation orders as well as criminal prosecution.369 For example, in Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202, the defendant was penalised $73,000 for damaging vegetation by harvesting trees in a national park.370 In addition to any other penalty imposed,371 a person convicted of an offence may also be required to pay compensation for any damage caused,372 or as a contribution towards rehabilitation or restoration.373 In Carter v Wall [2002] NSWLEC 124, for example, the defendant had removed around 3000 mangrove trees from a protected area in contravention of the Fisheries Management Act 1994 (NSW) s 205. After considering mitigating circumstances, the court imposed a fine of $10,000 and ordered the defendant to fence the area to enable natural regeneration protected from incursion by stock and maintain the fencing for five years. Harm to reserved areas may also occur because of activities conducted outside the reserve. For example, in Plath v Knox [2007] NSWLEC 670, the defendant was fined $13,200 for damaging vegetation in a national park by allowing pesticide from an aerial spraying operation to drift into the park. 12.77 General principles of criminal enforcement are outlined in Chapter 20 and civil enforcement in Chapter 21. Challenging environmental decision-making is covered in Chapter 22.

1.

See 7.46; and on Commonwealth agreements, see 12.38.

2.

For example, Crown Lands Act 1989 (NSW) s 135 (compulsory acquisition); Nature Conservation Act 1992 (Qld) s 49 (compulsory declaration); see also 12.41.

3.

Any attempt by local authorities in whom reserved land is vested to impose and enforce unreasonable restrictions in respect of public reserves, however, may be resisted: see Town of Mosman Park v Dalden Properties Pty Ltd (1986) 60 LGRA 9.

4.

Botanical gardens may play an increasingly important role in the conservation of plant biological diversity in the same way as zoological gardens may be used to procreate endangered species of fauna. This broader recognition is beginning to be reflected in legislation: see, for example, Botanic Gardens and State Herbarium Act 1978 (SA) s 13(1), where the functions of the board include ‘conservation of the natural environment’.

5.

Re Ingram [1951] VLR 424.

6.

Our Common Future: see further 8.4 and following.

7.

Article 8, Agenda 21, Ch 15; the ‘action plan’ emerging from the Earth Summit details further steps to be taken. For Australian action, see Biological Diversity Advisory Committee, A National Strategy for the Conservation of Australia’s Biological Diversity, AGPS, Canberra, 1992; Endangered Species Advisory Committee, An Australian National Strategy for the Conservation of Australian Species and Communities Threatened with Extinction, AGPS, Canberra, 1992.

8.

See 12.41 and following.

9.

See 12.65 and following.

10. See 12.8 and following. 11. See . 12. See generally Chapter 5. 13. See 5.21 and following. 14. See . For Australia’s strategy for the NRS 2009– 30, go to . 15. Comprehensive: the inclusion in the National Reserve System (NRS) of examples of regional-scale ecosystems in each bioregion. Adequate: the inclusion of sufficient levels of each ecosystem within the protected area network to provide ecological viability and to maintain the integrity of populations, species and communities. Representative: the inclusion of areas at a finer scale, to encompass the variability of habitat within ecosystems: see . 16. See 16.68. 17. See . 18. See . 19. Section 176. 20. See . Australia is working towards a target of 10 per cent of bioregions to be part of the NRS. 21. Section 172. 22. Section 173. None of the obligations imposed by the Act in respect of Commonwealth areas are affected by lack of such an inventory. 23. See . 24. See 5.11.

On the application of this Convention, see Haigh, ‘World Heritage — Principle and Practice: A 25. Case for Change’ (2000) 17 EPLJ 199; Haigh, ‘Australian World Heritage, the Constitution and International Law’ (2005) 22 EPLJ 385; Connolly, ‘Can the World Heritage Convention Be Adequately Implemented in Australia without Australia Becoming a Party to the Intangible Heritage Convention?’ (2007) 24 EPLJ 198; Marsden, ‘Australian World Heritage in danger’ (2014) 31 EPLJ 192. 26. Section 13(1). 27. Described as the natural heritage and cultural heritage contained in the property: s 12(3). A property may, of course, exhibit only natural or cultural heritage values, not both. 28. Sections 13(2) and 14(1). 29. Section 14(2)–(4). 30. Section 314. Again, the submission or status of a property is not affected by a failure to comply with this provision: s 314(3). 31. Section 14(6). 32. Section 14(7). 33. On 23 June 2014, the World Heritage Committee unanimously rejected the Australian Government’s request to amend the boundaries of the Tasmanian Wilderness World Heritage Area to exclude approximately 74,000 hectares of forest. The decision is available at . The Technical Evaluation report by the International Union for the Conservation of Nature (IUCN), an expert body advising the World Heritage Committee, is available at . 34. Section 15. 35. Section 315. 36. Section 15A. 37. Section 12. 38. For an analysis of this case, see McGrath, ‘The Flying Fox Case’ (2001) 18 EPLJ 540. 39. Section 480A. 40. Section 137. See also Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 95 LGERA 229. 41. Section 33. 42. Section 34B. 43. Section 316(1). This does not apply to a property already in a Commonwealth reserve: s 316(6). In that case, the management plan for the reserve must take into account Australia’s obligations under the World Heritage Convention: s 367(1)(i). There are also exclusions for Heard Island and McDonald Islands: s 316(7). Plans are reviewable every five years: s 319. 44. Section 322. 45. Sections 320 and 321. See also Corbett, McDonald and Lane, ‘Not All World Heritage Areas Are Created Equal: World Heritage Area Management in Australia’ (1996) 13 EPLJ 461; Corbett and Lane, ‘The Willandra Lakes Region World Heritage Property: A Planning Phoenix?’ (1997) 14 EPLJ 416; Lane, ‘The Importance of Planning Context: The Wet Tropics Case’ (1997) 14 EPLJ 368; Marshall and Moore, ‘Tragedy of the Commons and the Neglect of Science: Planning and Management in the Shark Bay World Heritage Area’ (2000) 17 EPLJ 126; Stevenson, ‘Time for a New Regime for Fraser Island?’ (2000) 17 EPLJ 569; Bassett, ‘Reefs, Recreation and Regulation: Addressing Tourism Pressures at the Ningaloo Coast World Heritage Site’ (2012) 29 EPLJ 239. 46. Section 46.

47. Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) reg 2B.01. 48. Sections 316(3), (4) and 321(2). 49. Section 323. 50. Section 318. 51. Section 324. 52. Coastal Waters (State Title) Act 1980 (Cth) s 4(3). 53. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 43; Great Barrier Reef Marine Park Act 1975 (Cth) (GBRMPA) s 39. And see Baxter, ‘Legal Protection for the Great Barrier Reef World Heritage Area’ (2006) 3(1) MqJICEL 67. 54. Parts 2 and 3. 55. The area of the park is prescribed in ss 30 and 31. The objectives, including ‘ecologically sustainable use’, are set out in ss 2A, 3AA and 3AB. 56. Sections 39W–39Y. 57. Section 39Z. 58. Section 39ZD. 59. Section 38. 60. Sections 3A–37A. The objectives of zoning are set out in s 32; and see North Queensland Conservation Council v Great Barrier Reef Marine Park Authority [2000] AATA 925. 61. Section 34. 62. Section 35. 63. Section 35A. 64. Great Barrier Reef Marine Park Regulations 1983 (Cth) Pt 2. 65. Where the zoning provides for ‘reasonable general use’, reasonable means reasonable in all the circumstances having regard to the purpose of the Act; and the history of use in an area may make a use that would otherwise not be reasonable, reasonable in the circumstances: Great Barrier Reef Marine Park Authority v Indian Pacific Pearls Pty Ltd (2004) 135 LGERA 401. 66. Great Barrier Reef Marine Park Regulations 1983 (Cth). Environmental management charges may be imposed on the grant or transfer of permits: see ss 39A–39U; Great Barrier Reef Marine Park (Environmental Management Charge — Excise) Act 1993 (Cth); Great Barrier Reef Marine Park (Environmental Management Charge — General) Act 1993 (Cth). 67. Sections 38A–38D. In Walsh v Stay and Play Australia Ltd; Ex parte Walsh [1992] 1 Qd R 321, the provision of boat transport for tourists was held to be the provision of tourist facilities that needed permission under the Regulations. 68. Section 38CA. 69. Chesterman J remarked at [53] that the magistrate’s fine of $6000 appeared ‘modest’. 70. See . 71. Great Barrier Reef Marine Park Regulations 1983 regs 88RA and 88ZVA. 72. Section 38J. 73. Clause 9. 74. Section 38N. 75. Sections 59A–59M. See also Grose, ‘Oil Spills, Tourism and the Great Barrier Reef: An Unpalatable

Mix’ (1994) 11 EPLJ 395. 76. Section 59F. 77. Sections 61A–61C. 78. Environmental Protection Act 1994 (Qld) Ch 4A. 79. Environmental Protection Act 1994 (Qld) ss 75, 76 and 87A. 80. Environmental Protection Act 1994 (Qld) ss 77–82. The prescribed methodology for calculating optimum fertiliser applications, and for soil testing, is described in the Environmental Protection Regulation 2008 (Qld) ss 22B–22E. Relevant records describing, for example, details of fertiliser and chemical applications, soil testing, and how the methodology has been applied to work out optimum applications must be kept and produced when required: Environmental Protection Act 1994 (Qld) ss 83–87; Environmental Protection Regulation 2008 (Qld) reg 22F. Requirements about the form, content and accreditation of ERMPs are set out in Environmental Protection Act 1994 (Qld) ss 87A–105. 81. Environmental Protection Act 1994 (Qld) s 363B. 82. Environmental Protection Regulation 2008 (Qld) ss 24A–32. 83. See generally Comino, ‘The Ramsar Convention in Australia — Improving the Implementation Framework’ (1997) 14 EPLJ 89. 84. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 17(1). 85. Sections 17(2) and 17A. 86. Section 326. 87. Sections 17A(2)–(4) and 326(3). 88. Section 17A(6). 89. Section 17A(7). 90. Section 327. 91. See . 92. Section 17B. 93. Section 16. 94. The Full Court of the Federal Court ultimately dismissed the appeal: see Greentree v Minister for the Environment and Heritage [2005] FCAFC 128; and the note by McGrath at (2005) 22 EPLJ 325. 95. Section 33. 96. Section 34C. 97. Sections 328–336. 98. Section 46. 99. Section 335. 100. United Nations Educational, Scientific and Cultural Organization. 101. Section 337. 102. See . 103. Section 338. 104. Sections 338 and 340. 105. Section 341. 106. Section 339.

107. Defined in s 24 to include areas for which the Commonwealth has control in international law, but excluding state and Northern Territory waters and coastal waters given over to state control. 108. Sections 344, 345 and 345A. 109. Section 344(2). These provisions do not apply to land within both the Uluru-Kata Tjuta National Park and the Alligator Rivers region. 110. Section 351. This does not apply to a declaration of an area in the Kakadu region: subs 6. 111. Sections 350–352. 112. Sections 346–347; Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) reg 10.03H, see also . The IUCN is the World Conservation Union: see . See also IUCN Guidelines for applying protected area management categories. 113. In the absence of a management plan for this category, the proclamation of the reserve may regulate activities to be carried out by the director in this zone. These activities include taking native species, carrying out works, erecting buildings, and commercial activities: s 349. 114. Section 345A. 115. Section 350(7). 116. Section 350(6). The director, however, is instructed not to sell or otherwise dispose of a usage right, except under certain conditions: s 358. 117. Section 352. 118. See . 119. Section 366. 120. Sections 374–383. 121. Section 376. 122. Sections 374–390A. 123. Section 348. 124. Section 367(3). 125. Section 368(3), (4). 126. Section 367. 127. Section 368. 128. Section 370. There are extra requirements for the Kakadu region, the Uluru region and Jervis Bay Territory: s 390. A plan may also be disallowed by either House of the Commonwealth Parliament: s 371. 129. Section 373. 130. Section 354. A civil penalty of 500 penalty units for an individual and 5000 units for a corporation applies. In a wilderness area, these and other acts are totally prohibited, unless carried out by the director: s 360. 131. See also Minister for the Environment v Lucky S Fishing Pty Ltd [2015] FCA 10. 132. Section 362. 133. Sections 363 and 364. 134. Section 369. 135. Section 357.

136. Section 359B. 137. Section 354(2), except in the Kakadu region, Uluru region, or Jervis Bay Territory: s 3. 138. Section 360. 139. Sections 354A and 355A; an action may be authorised by a management plan: ss 354(8), 355 and 355A(4). 140. Sections 355 and 355A. 141. Section 387. 142. The provision of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) with respect to management are subject to the provisions of the Antarctic Treaty (Environment) Protection Act 1980 (Cth): Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 354(4), 355(5) and 360(6). Mining is prohibited in Antarctica under the provisions of the Antarctic Treaty (Environment) Protection Act 1980 (Cth) ss 19A and 19B. 143. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 359. Application of state or territory law to such a right will not be affected. Neither does this provision apply to mineral rights in Kakadu National Park. 144. Section 359A; Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) reg 12.08. Note also that such activities do not need approval if conducted under provisions in certain other legislation; for example, Native Title Act 1993 (Cth) s 211; Aboriginal Land Rights (Northern Territory) Act 1976 s 71. 145. Transportation, pipeline and power-line routes through Kakadu are prescribed in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Sch 9. 146. See Power, ‘Joint Management at Uluru-Kata Tjuta National Park’ (2002) 19 EPLJ 284. 147. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 384–390A; Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) reg 11.08. 148. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 341C. 149. See . 150. Sections 341G and 341H. 151. Section 341J. 152. Sections 341C and 341D. Commonwealth heritage criteria for assessing values are set out in Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) reg 10.03A. In making an assessment about a potential listing, the Australian Heritage Council must not consider any matter that does not relate to the question whether the place meets any of the Commonwealth heritage criteria: s 341JG(4). 153. Sections 341JA, 341JB and 341JC. 154. Sections 341JD, 341JE and 341JF. 155. Sections 341JG and 341JH. Provision is also made for coordination of any assessment being undertaken by the Threatened Species Scientific Committee that might be relevant to the heritage listing process: ss 341JQ and 341JR. 156. Section 341JI. 157. Sections 341JK–341JO. 158. Section 341JP. 159. Sections 341L and 341M. 160. Commonwealth heritage values are those attributes that satisfy the criteria for listing: s 341D.

161. Sections 341S and 341Z–341ZB. 162. Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Sch 7A. 163. Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Sch 7C. 164. Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Sch 7B. 165. Section 341V. 166. Sections 341ZC, 341ZD and 341ZF. 167. Section 341ZE. 168. Sections 390K–390R; and see . 169. Sections 324A–324ZC. 170. Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Sch 5A. 171. Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Sch 5B. 172. Section 324X(2). 173. Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) reg 2B.01. 174. See . 175. Sections 304 and 305. Agreements must be consistent with Commonwealth, state and territory laws, and not give preference to a state within the meaning of the Constitution s 99: ss 311–312. 176. Regulations may prescribe the matters to be considered in analysing this: s 305(3). No regulations are currently in force. 177. Section 305(2). 178. Section 305(6). 179. Section 306. These clearly envisage that restrictions may be placed on land for conservation purposes and the possibility that financial assistance may be provided by the Commonwealth. 180. Section 307A. 181. Section 306A; approvals may only be given for actions that are not likely to have a significant impact on the protected matter: s 306A(2). 182. Section 307. A conservation agreement may be enforced by any party bound by the agreement, by application to the Federal Court for an injunction: s 476. 183. Section 308. 184. Section 308(4)–(8). 185. Sections 309 and 310. 186. See . On the use of Natural Heritage Trust funding to purchase a private reserve, see Fitzsimons and Westcott, ‘Policy Implications of the Transfer of Ownership of Scotia Sanctuary for the National Reserve System in Australia’ (2002) 19 EPLJ 329. See also, ‘The Role and Contribution of Private Land in Victoria to Biodiversity Conservation and the Protected Area System’ (2001) 8 AJEM 142. 187. Sections 390C, 390D and 390J. 188. Section 390E. 189. Section 390H. 190. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 528. 191. Defined in Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 525. 192. Regulation 8A.03.

193. Regulation 8A.03(3), (4). 194. Regulations 8A.06, 8A.11 and 8A.14. 195. Regulation 8A.07. 196. Regulation 8A.04; basically the Commonwealth, a Commonwealth agency or Indigenous owners or native titleholders. And see Labowitch, ‘Marine Bioprospecting in Australia: International Regimes and National Governance’ (2011) 28 EPLJ 159. 197. Regulation 8A.08; and see Chapman, ‘The Role, Use of and Requirement for Traditional Ecological Knowledge in Bioprospecting and Biobanking Biodiversity Conservation Schemes’ (2008) 25 EPLJ 196. 198. Regulation 8A.10. 199. Regulations 8A.15 and 8A.16. 200. See Haggarty v New South Wales (1995) 98 LGERA 226. 201. For example, National Parks and Wildlife Act 1974 (NSW) (NPWA) ss 145–148. Under the Nature Conservation Act 1992 (Qld), nature refuges, coordinated conservation areas and wilderness areas may be declared by the minister (ss 39 and 40), but in all cases, the minister is to give notice of the proposal to landholders and attempt to conclude a conservation agreement with them: ss 40 and 41. If agreement cannot be reached with landholders, then the Governor-in-Council may, nevertheless, proceed to declare an area as a nature refuge if the minister considers the area is, or includes an area, of major interest or a critical habitat. 202. Planning and Development Act 2007 (ACT) s 315. 203. Planning and Development Act 2007 (ACT) ss 316 and 317. 204. On taking horses, as non-native animals, into a reserved area, see Grishin v Conservator of Flora and Fauna [1998] ACTAAT 250. 205. Planning and Development Act 2007 (ACT) Sch 3 (management objectives for public land). 206. The range of reservations possible is set out in National Parks and Wildlife Act 1974 (NSW) (NPWA) s 30A. The types of land that may be reserved are set out in s 30B. Concurrence of other relevant ministers is required for all reservation categories: see ss 30C and 30D. 207. National Parks and Wildlife Act 1974 (NSW) (NPWA) ss 30E–30K. 208. National Parks and Wildlife Act 1974 (NSW) (NPWA) s 30E. 209. National Parks and Wildlife Act 1974 (NSW) (NPWA) s 30J. 210. Schedules 1 and 2. 211. Wilderness Act 1987 (NSW) s 8. Proposals for identification or a declaration of wilderness may be made by any person: s 7. 212. Wilderness Act 1987 (NSW) s 6(1). In forming an opinion, the director may consider ‘any relevant circumstance’ including such matters as are referred to in s 6(2). 213. Sections 61 and 61A. The purpose of such a declaration is set out in s 61(4). 214. Sections 69A–69KA. 215. Nature Conservation Trust Act 2001 (NSW); and for the meaning of ‘revolving fund scheme’, see s 7. 216. Sections 91(A)–91(I). 217. See generally McDonald and Buckley, ‘The Taking Offence and Lawful Activity Defence Under the Nature Conservation Act 1992 (Qld)’ (1993) 10 EPLJ 198. 218. Defined, among other things, as including ecosystems and their constituent parts, characteristics of

places that contribute to biological diversity and integrity and natural dynamic processes: s 8. 219. Defined as the protection and maintenance of nature while allowing for its ecologically sustainable use: s 9. 220. Section 5. 221. Defined as the natural diversity of native wildlife together with the environmental conditions necessary for their survival including regional, ecosystem, species and genetic diversity: s 10. 222. Defined as being of sufficient size to enable long-term protection of natural systems and biological diversity, substantially undisturbed by modern society and remote at its core from points of mechanised access and other evidence of society: see Dictionary to the Act. 223. Defined as the use of wildlife or areas within their capacity to sustain natural processes while maintaining life-support systems and ensuring intergenerational equity: s 11. 224. Section 6. 225. Section 68. ‘Critical habitat’ is defined in s 13. 226. General management requirements, and provisions about permits, are contained in the Nature Conservation (Protected Areas Management) Regulation 2006 (Qld). 227. Nature Conservation Act 1992 (Qld) s 17. 228. Section 19A. 229. Section 16. 230. Sections 18 and 19. For dedication procedures, see ss 36–38. 231. Section 20. 232. Section 21. 233. Section 22. 234. Section 23. 235. Section 24. 236. Section 25. 237. Section 26. 238. Sections 6 and 7. 239. Section 4. 240. Sections 7–18. 241. Section 3. 242. Regional Planning Interests Act 2014 (Qld) s 11. Areas are prescribed in the Regional Planning Interests Regulation 2014 (Qld) reg 4, and the environmental attributes for these areas set out in regs 7–10. 243. Regional Planning Interests Act 2014 (Qld) Pt 3. 244. Regional Planning Interests Act 2014 (Qld) Pt 2 Div 2. 245. Sections 11, 12 and 25A. 246. Territory Parks and Wildlife Conservation Act 1976 (NT) ss 74 and 74A. 247. Section 3. 248. Section 8, and Schs 1–5. 249. Sections 10(1) and 16.

250. Sections 25AA–25AR. 251. Sections 27–34A. Regional reserves may only be proclaimed: s 34A. 252. Section 28. 253. Sections 29 and 30. 254. Section 34A. 255. With consent, the rights of parties under indentures and indenture Acts may also be overridden: Wilderness Protection Act 1992 (SA) s 23. 256. The criteria are that the land and its ecosystems must not have been affected, or at least only to a minor extent, by modern technology, and must not have been seriously affected by exotic animals, plants or other exotic organisms: s 3(2). 257. Wilderness Protection Act 1992 (SA) s 22. Before making such a recommendation, the minister must engage in extensive consultation: s 22(6). The distinction between a wilderness protection area and a wilderness protection zone is not spelt out in the Act, but it seems that the purpose of a zone designation will be to allow mining interests to continue: see ss 25 and 33(6). 258. National Parks and Wildlife Act 1972 (SA) s 33. 259. National Parks and Wildlife Act 1972 (SA) s 26. 260. Sections 32–35. 261. Sections 25 and 26. 262. Section 16. 263. Sections 25 and 33–47. 264. National Parks Act 1975 (Vic) ss 17, 17A and 18, Schs 2, 2A, 2B and 3. Activities in parks are regulated under the National Parks Regulations 2013 (Vic) 265. Sections 21B and 22A, Schs 5 and 6. 266. The secretary is the body corporate established under the Conservation, Forests and Lands Act 1987 (Vic) Pt 2. 267. Section 16A. 268. Section 19. 269. Section 12. 270. Section 15(2). 271. Section 14. 272. Sections 32–34. 273. Section 33. 274. Sections 68–82. 275. Section 73. 276. Section 41. 277. Section 42. 278. Section 45; Conservation and Land Management Act 1984 (WA) s 6. 279. Sections 6 and 7. 280. A temporary control area may only be declared for purposes of public safety or protection of flora and fauna: s 62(2). 281. Conservation and Land Management Act 1984 (WA) s 62; see also Pennings v Selby (1997) 94

LGERA 1. 282. COP (Conference of the Parties) 2 Decision II/10. And see IUCN Guidelines for Marine Protected Areas (1999). 283. See . 284. At page 441. 285. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 344. For example, Environment Protection and Biodiversity Conservation (Commonwealth Marine Reserves) Proclamation 2013 (Cth), available at . 286. Defined in Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 24; effectively three to 200 nautical miles from the coastline. 287. Required under s 348. 288. Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Sch 8. See also ‘Australian IUCN Reserve Management Principles for Commonwealth Marine Protected Areas’, . 289. New South Wales v Commonwealth (1975) 8 ALR 1; see also 5.29 and following. 290. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 24 (definition of ‘Commonwealth marine area’). 291. The purposes of these reserves are spelled out in ss 22 and 33. 292. Sections 23 and 34. The ‘marine estate’ is defined in Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 6. Marine reserves are managed by the Marine Estates Management Authority: ss 7 and 8. And see Hickie, ‘Managing Recreation, Conservation and Economy: A Critical Appraisal of the New South Wales Marine Parks Amendment Act 2008’ (2009) 26 EPLJ 61. 293. Sections 23(4), 35. If the owner cannot be found after diligent inquiry, a proclamation or declaration may be made without consent: ss 32, 36 and 79. 294. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 27. 295. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 29. 296. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 37. 297. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) Pt 3. 298. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 20 and 21. 299. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 47. The content of management plans is set out in Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 48. 300. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 42 and 43. If an area within a marine park or aquatic reserve is subject to a plan of management under the National Parks and Wildlife Act 1974 (NSW) or the Crown Lands Act 1989 (NSW), the management rules for the park or reserve prevail over the plan of management to the extent of any inconsistency; Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 46. 301. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 55 and 56. Mining is prohibited in all parks and reserves except in specified circumstances; Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 54. Other specified activities may also be prohibited from time to time; Environment Protection and Biodiversity Conservation

Act 1999 (Cth) (EPBCA) s 57. 302. Sections 8 and 20. 303. Marine Parks Act 2004 (Qld) Pt 3. 304. Sections 120–125. 305. Part 5. 306. Section 10. 307. Section 5; in which specified activities, which would otherwise be prohibited or restricted as a consequence of the zoning of the area, will be permitted under the terms of a management plan. 308. Sections 4 and 11–16. 309. Section 12. 310. Sections 4 and 7. The objects of the Act are to ‘to protect and conserve marine biological diversity and marine habitats by declaring and providing for the management of a comprehensive, adequate and representative system of marine parks’, and ‘allowing ecologically sustainable development’: s 8. The meaning of ESD, and principles of ESD, are set out in s 8(2), (3). Any person concerned in the administration of the Act must act consistently with, and seek to further, the objects of the Act: s 9. 311. Section 105. 312. Sections 106–112. 313. Sections 118–124. 314. Section 104. 315. Fisheries Act 1995 (Vic) s 88. 316. Section 88(2). 317. Section 89. 318. Sections 28(5) and 89. 319. Part 2 Div 3. Management of marine reserves is vested in the Marine Parks and Reserves Authority: ss 26A–26H. 320. Section 13A. 321. Sections 13A and 13D. 322. Section 13C. 323. For example, Forestry Act 2012 (NSW) s 16 (flora reserves); Forestry Act 1950 (SA) ss 3(1)(b), 9 and 9A (native forest reserves); Forest Management Act 2013 (Tas) Sch 3 (reserves previously reserved under Forestry Act 1920 (Tas) ss 20 and 22B (now repealed) to be henceforth reserved under Nature Conservation Act 2002 (Tas); Forests Act 1958 (Vic) ss 42(6) (places of beauty and public interest), 50 (various categories of parks and reserves) and 58–60 (protected forests); Nature Conservation Act 1982 (Qld) Pt 4A (forest reserves); Forestry Act 1959 (Qld) ss 34A and 34C–34E (feature protection areas, state forest parks and scientific areas); Conservation and Land Management Act 1984 (WA) ss 62(1)(da) and 62A (forest conservation area). The management plan will indicate whether indigenous state forests and timber reserves are being reserved for conservation purposes: Conservation and Land Management Act 1984 (WA) s 55. 324. For example, Conservation and Land Management Act 1984 (WA) s 54. 325. For example, Nature Conservation Act 1992 (Qld) s 70I; Forestry Act 2012 (NSW) ss 25, 44 and 59(2)(b). In NSW, for each flora reserve, a detailed scheme (a ‘working plan’) of the operations to be carried out on or in relation to the reserve, must be prepared by the Forestry Corporation. The

object of any such scheme is to be the preservation of native flora on the flora reserve; Forestry Act 2012 s 25. 326. Forest Act 2012 (NSW) s 18. 327. Forest Act 2012 (NSW) ss 18(2) and 19. 328. Sections 70A and 70J–70O. 329. Sections 70F and 70I. 330. For example, Forestry Act 2012 (NSW) s 59(1)(c) (conservation of fauna one of the objectives of forest management). 331. Forest Act 2012 (NSW) s 59(2). 332. For example, Planning and Development Act 2007 (ACT) Sch 3. In Tasmanian Conservation Trust Inc v Tasmania (2000) 109 LGERA 219, management objectives were interpreted by the Supreme Court of Tasmania to be exclusive. That is, the Act impliedly forbade the inclusion in a management plan of objectives not listed in the Act. 333. For example, Planning and Development Act 2007 (ACT) s 317(2), though the management objectives set out in Sch 3 will prevail; Conservation and Land Management Act 1984 (WA) s 56. 334. See Chapter 9. 335. See Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director of Department of Conservation & Land Management (1997) 94 LGERA 380. 336. For example, National Parks and Wildlife Act 1974 (NSW) (NPWA) s 72; Fisheries Management Act 1994 (NSW) ss 192, 193 and 197A; Nature Conservation Act 1992 (Qld) s 102; National Parks and Wildlife Act 1972 (SA) s 38; National Parks Act 1975 (Vic) ss 17 and 18; Conservation and Land Management Act 1984 (WA) ss 53 and 54; National Parks and Reserves Management Act 2002 (Tas) ss 19 and 20; Planning and Development Act 2007 (ACT) Pt 10.4; Nature Conservation Act 2014 (ACT) Pt 8.3 (reserve management plans). Failure to prepare such a plan may involve a breach of the Act: see National Parks Association of New South Wales v Minister for the Environment (1992) 130 LGERA 443. See also South-West Forest Defence Foundation Inc v Lands and Forest Commission (1995) 86 LGERA 365. 337. Planning and Development Act 2007 (ACT) s 323; Nature Conservation Act 2014 (ACT) s 179; National Parks and Wildlife Act 1974 (NSW) (NPWA) s 75; Territory Parks and Wildlife Conservation Act 1976 (NT) s 18; Nature Conservation Act 1992 (Qld) ss 104–109; National Parks and Wildlife Act 1972 (SA) s 38; Conservation and Land Management Act 1984 (WA) ss 57 and 58; National Parks and Reserves Management Act 2002 (Tas) s 23. 338. Recognition of the interests of Indigenous peoples was central to the UNCED conference in Rio (see 8.7 and following) and references are spread throughout Agenda 21. See also Convention on Biodiversity 1992, Preamble, p 2. 339. Strelein, ‘Indigenous Peoples and Protected Landscapes in Western Australia’ (1993) 10 EPLJ 380 at 382. See also Chapman, ‘The Role, Use of and Requirement for Traditional Ecological Knowledge in Bioprospecting and Biobanking Biodiversity Conservation Schemes’ (2008) 25 EPLJ 196. 340. Sections 42AG–42AP. 341. Sections 35, 36 and 73. 342. See Pt III of the Act. 343. Sections 43D–43L. 344. Lands of cultural significance are listed in Sch 14 of the Act; see also Baird and Lenehan, ‘The Process in NSW Leading to Joint Management of Aboriginal Owned Land and the Register of

Aboriginal Owners’ (2002) 19 EPLJ 277. 345. Sections 41 and 54. 346. Nature Conservation Act 1992 (Qld) ss 27 and 70QA. 347. For example, Kakadu; see Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 387; National Parks and Wildlife Act 1974 (NSW) (NPWA) ss 41(1), 54, 58O and 64; Nature Conservation Act 1992 (Qld) s 27; Mineral Resources Act 1989 (Qld) Dictionary (definitions of ‘land’ and ‘protected area’); National Parks and Wildlife Act 1972 (SA) ss 25, 28 and 43; National Parks Act 1975 (Vic) ss 17–25. 348. For example, mining operations may be carried out in Commonwealth reserves under the terms of a management plan: see Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 355; Territory Parks and Wildlife Conservation Act 1976 (NT) s 17; National Parks and Reserves Management Act 2002 (Tas) s 27. Management objectives for conservation areas and regional reserves in Tasmania include controlled use of natural resources, including special species timber harvesting; National Parks and Reserves Management Act 2002 (Tas) Sch 1 items 5 and 7. 349. For example, in the Australian Capital Territory the minister may declare an area in a reserve to be a resource protection area. A declaration must state the purpose of the declaration, including a description of the environmental harm that the declaration is intended to reduce. In deciding whether to make a resource protection area declaration, the minister must consider the purpose for which the area was reserved in the territory plan; and the planning and development management objectives for the area; Nature Conservation Act 2014 (ACT) ss 253 and 254. 350. Section 25A. 351. For example, National Parks and Reserves Management Act 2002 (Tas) s 19(6)–(8). 352. For example, National Parks and Reserves Management Act 2002 (Tas) s 19(13); Nature Conservation Act 1992 (Qld) s 70I. 353. See Pt 4 (integrated forestry operations approval). 354. National Parks Act 1975 (Vic) s 28. 355. Section 10. 356. Section 12. 357. Section 15. There is a saving for managing authorities acting in an emergency: s 16. 358. Sections 41–44. 359. See, for example, Re Canal Rocks Pty Ltd and Shire of Busselton [2006] WASAT 211 (amenity values of adjacent national park); Holcim (Aust) Pty Ltd v Indigo Shire Council [2012] VCAT 640 (quarrying operations adjacent to national park could be acceptably managed); Butler Excavations Pty Ltd v Ballarat City Council [2010] VCAT 57 (permit refused because of inadequate consideration of environmental requirements of adjacent swamp) and Grafton Dell Pty Ltd v Ballarat City Council [2012] VCAT 1241 (stormwater discharged to swamp must be monitored to ensure that beneficial uses are adequately protected). 360. Planning and Development Act 2007 (ACT) s 319; Nature Conservation Act 2014 (ACT) s 176; National Parks and Wildlife Act 1974 (NSW) (NPWA) ss 58F, 58S, 72(2), (2a), 75a(5) and 81(3a); Wilderness Act 1987 (NSW) ss 16–19; Territory Parks and Wildlife Conservation Act 1976 (NT) s 14; Nature Conservation Act 1992 (Qld) s 125; Marine Parks Act 1982 (Qld) s 23; National Parks and Wildlife Act 1972 (SA) ss 26, 32 and 40; National Parks and Reserves Management Act 2002 (Tas) s 27; National Parks Act 1975 (Vic) ss 17–25; Wildlife Conservation Act 1950 (WA) s 12D. 361. National Parks and Wildlife Act 1974 (NSW) (NPWA) s 151. 362. National Parks and Wildlife Act 1974 (NSW) (NPWA) s 152. 363. Similar conclusions were reached in Keough v Burnside City Corporation (1992) 75 LGRA 163, in

South Australia, where the power of a local authority to improve park lands was held not to extend to use of the land for rubbish and waste disposal. 364. The minister may grant easements over land in reserved areas for the purposes of providing access: s 153. And see Scharer v New South Wales [2001] NSWCA 360. 365. For example, National Parks and Wildlife Act 1974 (NSW) (NPWA) ss 39 and 58; Nature Conservation Act 1992 (Qld) s 34; National Parks and Reserves Management Act 2002 (Tas) s 35; National Parks Act 1975 (Vic) ss 25A and 26A. 366. National Parks and Wildlife Act 1974 (NSW) (NPWA) ss 39(3), (4) and 58; Territory Parks and Wildlife Conservation Act 1976 (NT) s 17; Conservation and Land Management Act 1984 (WA) s 4. 367. For example, Nature Conservation Act 1992 (Qld) ss 67 and 126. 368. For example, National Parks and Wildlife Act 1974 (NSW) (NPWA) ss 70 and 71; Nature Conservation Act 2014 (ACT) Ch 9; Conservation and Land Management Act 1984 (WA) s 101C; National Parks and Reserved Land Regulations 2009 (Tas) reg 4. 369. For example, National Parks and Wildlife Act 1974 (NSW) (NPWA) ss 91J–91T; Nature Conservation Act 2014 (ACT) ss 229, 241 and 250. And see also 20.11. 370. See also Plath v Glover [2010] NSWLEC 119 (unlawful harvesting of seed from a reserve). 371. For example, in Dridan v Kent [2004] SASC 100, the offender was fined $9000 for deliberately clearing native vegetation from a Crown reserve. 372. For example, Conservation, Forests and Lands Act 1987 (Vic) ss 97 and 98; Nature Conservation Act 1992 (Qld) s 173I; Natural Resources Management Act 2004 (SA) s 193. 373. For example, Nature Conservation Act 1992 (Qld) ss 168 and 169.

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Chapter 13 Native Vegetation Introduction 13.1 Loss of native vegetation, and consequently habitat for a wide range of biodiversity, is arguably one of Australia’s most significant examples of environmental mismanagement. Depletion and destruction of native vegetation is a primary driver of land degradation, salinity and declining water quality, and is the biggest cause of biodiversity loss. While broad scale land clearing for agriculture and urban development is a critical threat, the loss caused by clearing is compounded by the degradation of remnant bush through unsustainable grazing pressure, insect attack, disease, weeds, rising water tables, salinity, inappropriate fire management, unsustainable firewood gathering and neglect.1

The native vegetation outcomes sought in the national Native Vegetation Framework2 are to: increase the national extent and connectivity of native vegetation; maintain and improve the condition and function of native vegetation; maximise the native vegetation benefits of ecosystem service markets; build capacity to understand, value and manage native vegetation; and advance the engagement and inclusion of Indigenous peoples in management of native vegetation. Regulatory control over land clearance is, however, a state rather than a federal responsibility. Native vegetation legislation concentrates predominantly on broad-scale land clearance in rural areas. Clearance of native vegetation may also be prescribed as ‘development’ by planning schemes and policies, and regulated by the development control legislation described in Chapter 10.3 [page 520]

Farrier emphasises the necessity to concentrate on effective management, not just regulation:4 Planning systems have typically been negative in their orientation. They have focused on the control of development. Even where development consent is given, there has been a reluctance to impose conditions which require continuing supervision and enforcement once the development is up and running, and there is certainly no tradition requiring developers to conduct ongoing management planning exercises. If, on the other hand, development consent is refused, there is no longer any lever available to ensure that the undeveloped resource is properly managed. The retention of native vegetation by the imposition of negative controls is only part of the story. These areas must also be managed to keep down weeds and pests and to control wildfires. They may need to be fenced to keep off domestic stock. It is one thing for governments to restrict land use without offering anything in exchange. If, however, we want landowners not simply to forego development but to manage the land in a positive fashion for purposes which offer no immediate economic return to them, we must provide inducements, for reasons of practical necessity if not consideration of equity. It is at this point that regulation through the planning system, or any more specialised regulatory regime, needs to be supplemented by provision for heritage or conservation agreements in which landholders commit themselves to manage the land in an appropriate manner.5

13.2 Legislation, however, has been quite slow to address these issues where they arise on private land, because the remedies require direct interference with traditional property rights and land management practices.6 Given the nature of the evidence that land clearance is the natural precursor to all other forms of degradation, Bradsen once described the Australian record on native vegetation clearance as a matter of ‘national shame’. He warned that a ‘tree planting program without adequate protection and management of existing vegetation is something in which governments can take no pride’.7 Since then a great deal of progress has been made in devising, implementing and enforcing regulatory controls over land clearing. 13.3 Regulation alone, however, is not a complete answer to the problems triggered by losses of native vegetation, and this has encouraged a search for alternative approaches that reward both landowners and communities for conserving native vegetation. The Productivity Commission warned in 20048 that legislation banning clearance of native vegetation had serious design flaws that could lead to ineffective [page 521] and inequitable outcomes, and policies that failed to engage landholders would ultimately fail. It has to be admitted that prohibiting clearing on land to protect vulnerable ecosystems often comes at a cost to private landowners that is not generally compensated by the public purse.9 One form of engagement is, of course, the provision of adequate compensation for opportunities foregone because of restrictions imposed by clearance controls.10

13.4 Although compensation has never been a formal feature of the New South Wales approach to land clearing, described at 13.16, by agreement between the Commonwealth and New South Wales, there is in place a scheme, the ‘Farmer Exit Assistance Program’, for the funding by the Commonwealth of a financial assistance package, operated by New South Wales, for the purchase of properties and/or provision of financial assistance to landowners affected by the operation of the Native Vegetation Act 2003 (NSW) (NVA).11 This scheme has since been subjected to rigorous judicial review. In Spencer v Commonwealth [2008] FCA 1256, it was argued that the NVA, under which the plaintiff had been prohibited from clearing his land without consent, thereby deprived him of any ability to reasonably use the land or enjoy the benefits of the usual incidents of ownership, including continuing enjoyment of previous improvements made to the property, sale of timber rights, potential eco-service agreements and carbon rights that might eventually accrue in relation to that vegetation; and that as New South Wales had only been able to enact such legislation because of Commonwealth financial assistance, the Commonwealth was thereby attempting to effectively acquire those rights without paying just compensation. The claim was rejected in the Federal Court; this action did not directly impugn the failure of the NVA to provide compensation, and an appeal to the Full Court of the Federal Court was subsequently dismissed.12 The New South Wales government had in fact offered Mr Spencer funding under the Commonwealth financial assistance package. In Spencer v New South Wales Minister for Climate Change, Environment and Water [2008] NSWSC 1059, the plaintiff sought an order to declare the offer invalid, among other reasons, because the offer was manifestly unreasonable. The court held that the offer for the property, being based on market value, was adequate. The plaintiff’s claim was that, in reality, the offer did not adequately compensate for the loss of business opportunities brought about by the restrictions on clearance of native vegetation. [page 522] 13.5 Although regulation still remains the backbone of the policy response, it is being increasingly recognised that a combination of voluntary and regulatory techniques that encompasses both inducements and coercion is probably the optimal mix for balancing both private and public interests.13 The provision of information and education, and encouragement of voluntary action, complement coercive sanctions for breaches of regulation. However,

in recent years much more use of property or land management agreements has been made to encourage the take-up of schemes to reduce clearing. Government tendering for services linked to retention of native vegetation is another approach, typified by the BushTender system in Victoria,14 an auction-based approach under which landholders competitively tender for contracts to protect and improve their native vegetation. Successful bids are those that offer the best value for money, with successful landholders receiving periodic payments for their management actions under agreements signed with the regulator. These actions are based on management commitments over and above those required by current legislation. Perhaps more controversially, offset schemes have also been devised to complement regulation: see 13.39. 13.6 Another regulatory approach that has been suggested is to build into legislation that governs land management practices, including clearing, a duty of care for the protection of biodiversity.15 Such a duty would need to be carefully spelt out, perhaps by incorporation into a code of practice for particular activities such as land clearance, or by way of a property agreement. Such a duty has, for example, been incorporated into the management of Crown land in Queensland.16 13.7 Another interesting idea to have surfaced in recent years is the creation of a scheme for awarding biodiversity credits,17 rather in the same way as industry might be awarded carbon credits for reducing emissions of greenhouse gases. The foundation of such a scheme would be the creation of a new form of property right that landowners could sell for reward. Credits are generated by those who conserve biodiversity values on their land. These values are then placed under protection by property agreements and covenants. The credits can then be sold into a common pool, where they are purchased by those who have a legal obligation, or voluntary incentive, to buy them. [page 523] A necessity to purchase credits might arise, for example, as a condition of clearing land for development — an ‘offset’ arrangement.18 The BushBroker scheme in Victoria19 is an example of this type of approach, underpinning offset arrangements in that state. 13.8 The fact is, however, that most of the decisions that threaten biodiversity are made every day by local councils, and also ministers, determining applications for development. Local decision-making may well be directed or influenced by state and regional planning instruments,20 but

‘because many of the processes contributing to urban biodiversity loss take place at the local scale and are often the result of piecemeal decision-making by the consent authority, they must therefore be addressed more adequately by local policy’.21 The ‘death of a thousand cuts’ is, however, nowhere more evident in environmental management than in our attitudes to the expendability of biodiversity in favour of economic development. And even though legislation exhorts us to regard protection of biodiversity as ‘fundamental’ to decisionmaking,22 state of the environment reporting,23 and ongoing listing of species as ‘threatened’,24 still seems to point to the fact that we are finding it difficult to take care of biodiversity in decision-making processes. Perverse incentives for development or that discourage conservation, which arise from local government rating regimes, have also been targeted as needing reform.25

Regulatory controls South Australia 13.9 The first comprehensive attempt at controlling clearance of native vegetation took place in South Australia in the mid-1980s. Through the continuing and wholesale clearance of land for agriculture, the state was being rapidly denuded of its little remaining native vegetation, posing crucial questions not only in respect of soil erosion and loss of long-term fertility, but also with regard to the rapid loss of biodiversity through destruction of habitat. The problem was tackled by making clearance of any [page 524] native shrubs, plants or trees, ‘development’ for which a permit was required under the planning legislation.26 Local farmers and graziers, however, contended that the ‘existing use’ provisions of the planning legislation applied to land clearance for farming purposes. The High Court, by a majority of 3:2, ultimately agreed with this argument in Dorrestijn v South Australian Planning Commission (1984) 56 ALR 295. Farrier27 has commented that existing use should not be about the protection of ‘expectations’ and that ‘[i]n Dorrestijn, a majority of the High Court, under cover of a principle of statutory interpretation, upheld a concept of private property which is by no means inevitable or immutable. It may well be out of step with the current

needs of society’. Nevertheless, the decision forced the South Australian government to consider other avenues for regulating land clearance. 13.10 The government then hinted that it might repeal the existing use provisions. However, as this would have removed one of the basic building blocks of planning control, the idea was quickly abandoned. Instead, legislation was enacted to specifically control land clearance: the Native Vegetation Management Act 1985 (SA). Under the Act, native vegetation could only be cleared with the consent of the Native Vegetation Authority, with minor exceptions. Acceptance of the legislation was only achieved, however, by the insertion of provisions for compensation where clearance was refused. Eligibility for payments was linked to the heritage agreement scheme first established under the Heritage Act 1978 (SA). This agreement introduced financial incentives to induce landholders to retain native vegetation on their properties, and tied the resultant agreements to the land so as to bind successors in title. Although compensation has now been abolished,28 the heritage agreement scheme has been retained under the successor to the 1985 legislation, the Native Vegetation Act 1991 (SA) (NVA).29 Owners of land subject to heritage agreements may apply to the Native Vegetation Council for financial or other assistance to manage the land and its flora and fauna.30 Management may include restrictions on land use, provision for specific works and development of management plans.31 Land management agreements may also be entered into under the Development Act 1993 (SA), either by the minister or a local council, with private landowners for management, preservation or conservation of land.32 [page 525] The objects of the NVA33 include the conservation, protection and enhancement of the native vegetation, in particular, remnant native vegetation, in order to prevent further reduction of biological diversity and land degradation; loss of quantity and quality of native vegetation; and loss of critical habitat. The provision of incentives and assistance to landowners, and re-establishment of native vegetation in cleared areas, are also important objectives.34 ‘To clear’ includes to cause or permit ‘clearance’, and ‘clearance’ includes, besides the killing or destruction of native indigenous vegetation, the severing of branches, burning, removal or any other substantial damage, including damage caused by drainage or flooding of land.35 A broad range of exemptions from the necessity to obtain consent for clearing is set out in the

Act and Regulations,36 including for purposes incidental to consents granted under other legislation, grazing and other agricultural pursuits,37 trackmaking, clearance under electricity lines,38 and fire prevention and control,39 though management plans often have to be approved by the council for exempt clearing. Where consent is required, an application to clear must be accompanied by a native vegetation management plan prepared in accordance with the guidelines; and either (i) information that establishes that the planting and maintenance of native vegetation on the land after clearance or on adjacent land in accordance with the native vegetation management plan will, after allowing for the loss of the vegetation to be cleared, result in a significant environmental benefit; or (ii) information that establishes that it is not possible for the applicant to provide a significant environmental benefit in the manner referred to in (i).40 In deciding whether to consent to an application to clear, the council must have regard to the principles of clearance of native vegetation (set out in Sch 1) balanced against the legitimate business interests of primary producers, and the applicant’s desire to facilitate the management of other native vegetation.41 The council must not make a decision that is seriously at variance with those principles,42 although this may be permissible where only isolated plants are concerned, where the applicant is in the business of primary production and to not allow the clearance would put the applicant to unreasonable expense in carrying on that business or would result [page 526] in an unreasonable reduction of potential income from that business.43 Conditions of consent may require establishment, nurturing and protection of vegetation, or a requirement to enter into a heritage agreement.44 13.11 A landowner who wishes to revegetate land or gain recognition for revegetation that has already occurred may seek approval from the council.45 If, in the opinion of the council after having regard to Regional Biodiversity Plans prepared by the minister, and associated pre-European vegetation mapping, that apply in the vicinity of the relevant land, the value of the native vegetation that has been established on land or proposed for revegetation is, or will be, sufficient to warrant application of the controls against clearance under the Act, it may make a declaration in relation to the vegetation or approve the proposal.46 The Act is not entirely clear about what effect such a declaration or approval might have; though it may be noted on the title of the

property,47 and financial assistance may be provided for establishment of native vegetation on land.48 13.12 It is an offence49 to clear native vegetation without the consent of the Native Vegetation Council,50 for which a fine can be imposed up to a maximum of $100,000 or a penalty calculated at a prescribed rate per hectare, whichever is greater.51 The deterrence aspect of the criminal sanctions was emphasised by the Supreme Court of South Australia in Dal Piva v Maynard (2000) 112 LGERA 165, where a fine of $100 imposed by a magistrate was said by the court to be manifestly inadequate, and changed on appeal to a fine of $17,000.52 In Lamattina v Gould [2009] SASC 130, the Supreme [page 527] Court held that a magistrate’s fines in total of $68,000 for a corporate offender and $51,000 for an individual, in relation to unlawfully clearing around 350 hectares of land, were not disproportionately excessive.53 It is a defence to a charge under the Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.54 13.13 Breaches of the Act may also be enforced by directions given by authorised officers,55 or by civil proceedings in the Environment, Resources and Development Court (ERD Court) by the Native Vegetation Council or other party with interests in land that might be affected; and, in the case of a breach of a heritage agreement, by a party to the agreement.56 The court may, among other things, require the respondent to ‘make good the breach’ in a manner, and within a period, specified by the court. Where a conviction has been secured in criminal proceedings, then the council must initiate civil proceedings to require the offender to make good the breach. Where a contravention is established, the ERD Court: … must direct the respondent (a) to remove the buildings, works or vegetation that have been erected, undertaken or planted on the land since the clearance occurred; and (b) establish vegetation consisting of plants of a species specified in the order in such numbers and on such parts of the cleared land as is specified in the order; and (c) nurture, protect and maintain the plants until they are fully established or for such period as is specified in the order.

The court can also give such other directions as it thinks fit. The requirement to revegetate the cleared land seems to have removed the discretion of the court under the previous legislation, subsequently exercised in Rentiers Pty Ltd v Native Vegetation Authority (1990) 71 LGRA 266, to impose terms to make good the contravention by requiring an undertaking to

replant on an alternative site, rather than the site from which the vegetation was removed. This case was legitimately criticised on the basis [page 528] that the exercise of such a discretion effectively rewarded the guilty party by enabling him to profit from the wrongdoing. 13.14 Other states have since followed the lead established by South Australia, either with specific legislation, or by introducing clearing controls into the state section of planning schemes.

Australian Capital Territory 13.15 In the Australian Capital Territory, offences57 relating to unlawful clearing58 of native vegetation apply to native vegetation areas59 in reserves declared under the Planning and Development Act 2007 (ACT).60 The court has broad powers to order mitigation, remediation and publication of the offence.61

New South Wales 13.16 New South Wales has tried a number of different approaches in its bid to reduce clearing, both lawful and unlawful, throughout that state. First came State Environmental Planning Policy 46, under which a number of successful prosecutions were launched for illegal clearance;62 then the Native Vegetation Conservation Act 1997 (NSW) (NVCA); and finally the NVA. The strategic approach to clearance through the preparation of Regional Vegetation Management Plans under the NVCA has now been abandoned under the NVA in favour of a more hands-on approach with individual property owners, directed by strategic planning carried out by the Natural Resources Commission and regional Catchment Management Authorities.63 The NVA now prohibits clearing without development consent or in the absence of a property vegetation plan (PVP).64 Section 44 of the Act also ascribes legal responsibility for unlawful clearing to the landowner, unless it is established that the clearing was carried out by another person that the landowner did not cause or permit to carry out the clearing. To cause [page 529] clearing does not involve the same sort of control that would be necessary to

establish vicarious liability for the acts of an independent contractor: see 20.45 and following. Where clearing by a third party arises as a natural consequence of the conduct of the landowner, then the landowner has caused the clearing.65 13.17 The former NVCA basically failed because the wide range of definitions, exclusions and exemptions written into the Act made it very difficult to determine, first, whether the legislation applied in any given circumstances, and, second, whether, if the Act did apply, the particular proposed activity was exempted or not. Partly for these reasons, and partly perhaps for political considerations more to do with the difficulties inherent in enforcing environmental policy against private landowners, enforcement of the Act was decidedly patchy, although there were some notable successes.66 Enforcement under the new NVA appears to be more committed;67 and though the Act does not entirely escape difficulties of definition, it has obviously made some attempts at clarification. For example, the definition of ‘native vegetation’ covers trees, understorey plants, groundcover and plants occurring in a wetland.68 The vegetation must also be indigenous; in other words, it must have existed in New South Wales before European settlement.69 In Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73, the defendant, through its contractor, was found guilty of clearing native vegetation [page 530] contrary to the NVA s 12(1). Pepper J interpreted (at [112]) ‘vegetation’ as including both dead and alive vegetation: … a definition of the term ‘vegetation’ which includes both dead and living vegetation achieves greater harmony with an expansive statutory conceptualisation of ‘native vegetation’ which includes the entire plant community from groundcover up.

‘Groundcover’ is simply defined as any type of herbaceous vegetation; however, groundcover is only regarded as native vegetation if it occurs in an area where the vegetation comprises less than 50 per cent of indigenous species, and not less than 10 per cent of the area is covered with vegetation, dead or alive. The regulations will indicate how to calculate those percentages.70 13.18 ‘Clearing’ native vegetation did not, under the NVCA, include ‘sustainable grazing’, which was defined as the level of grazing that, in the opinion of the Director-General, the vegetation concerned was capable of

supporting without resulting in a substantial long-term modification of the structure and composition of the vegetation.71 This exclusion has been reworded in the NVA; it now states ‘sustainable grazing that is not likely to result in the substantial long-term decline in the structure and composition of native vegetation is permitted’,72 although whether this adds anything to the previous definition is debatable. Other exclusions still remain that may create definitional difficulties; for example, the exclusion relating to ‘routine agricultural management’;73 and definitions of ‘remnant native vegetation’ and ‘regrowth’.74 Clearing of regrowth that is not protected regrowth is permitted, subject to any contrary indication in a PVP.75 13.19 Some ‘low risk’ clearing is now categorised as ‘routine agricultural management’ and may be carried out without approval if the clearing complies with self-assessable clearing codes.76 At present, three codes that cover thinning native vegetation, clearing isolated paddock trees in a cultivated area, and clearing invasive native species, are available. 77 Clearing is also excluded from assessment if carried out for conservation purposes or in accordance with a ministerial policy designed to improve longterm environmental outcomes.78 [page 531] The onus of establishing the defence that clearing was only ‘regrowth’ has been held to lie with the defendant, on the balance of probabilities.79 The approach under the previous, now repealed, legislation, outlined in Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242, under which the prosecutor bore the onus of negativing beyond reasonable doubt the ‘regrowth’ exemption, does not therefore apply under the NVA. The onus under the NVA lies on the defendant to prove on the balance of probabilities that the exemption applies; the prosecutor can also seek to negative that defence on the balance of probabilities, but that does not shift the onus to the prosecutor.80 The problems of interpretation inherent in the practical application of these definitions are obvious. However, they do indicate the political difficulties that confront policymakers in devising suitable balances between the obvious need to reduce clearance of native vegetation and the wish of landowners to use the full productive capacity of their land and manage weeds. 13.20 In addition, various types of clearing authorised under other legislation are also excluded from the NVA, for example: clearing carried out in accordance with a bushfire management plan under

the Rural Fires Act 1995 (NSW);81 clearing carried out in accordance with a property management plan under the Threatened Species Conservation Act 1997 (NSW); clearing that is, or is part of, designated development within the meaning of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA);82 clearing authorised under the Fisheries Management Act 1994 (NSW); clearing for plantations permitted under the Plantations and Reafforestation Act 1999 (NSW); clearing under the Roads Act 1993 (NSW) s 88 (removal or lopping on roadsides for safety purposes) or authorised by consent under that Act; clearing carried out in accordance with a permit under the Rivers and Foreshores Improvement Act 1948 (NSW) Pt 3A; and clearing carried out in accordance with a licence, permit, authority or approval under the Water Act 1912 (NSW) or Water Management Act 2000 (NSW). [page 532] The fact that a local environment plan permits agricultural use of the land without consent does not, however, override the need for specific consent under the NVA prior to clearing native vegetation.83 13.21 The real problem with exemptions is that clearing authorised under these other statutory powers is rarely constrained by the sorts of environmental considerations that underlie the objects of the NVA. Nor is it subject to the detailed evaluation required under the NVA, nor any requirements for consultation with the regulator of the NVA. Sometimes, other public authorities, such as local authorities and the Rural Fires Service,84 are under an obligation to have regard to the principles of ESD in carrying out their statutory functions, but this is all. Bush fire hazard reduction work may be carried out on land despite any requirement for an approval, consent or other authorisation under the NVA or any other legislation if: (a) the work is carried out in accordance with a bush fire risk management plan that applies to the land; (b) there is a bush fire hazard reduction certificate in force in respect of the work and the work is carried out in accordance with any conditions specified in the certificate; and

(c) the work is carried out in accordance with the provisions of any bush fire code85 applying to the land specified in the certificate.86 If a certificate is not obtained, or clearing exceeds that authorised by the certificate, necessary consents that would otherwise apply will be enlivened.87 Clearing trees and other vegetation in a native vegetation clearing entitlement area,88 within 10 metres (trees) and 50 metres (other native vegetation) of certain residential, ‘high risk’89 and farm buildings, is also exempt from approvals if carried out under the 10/50 Vegetation Clearing Code of Practice.90 Amendments to the Electricity Supply Act 1995 (NSW) also now allow electricity network operators to require landowners to carry out bush fire risk mitigation works on [page 533] their land that include trimming or removal of trees or vegetation.91 Directions under this provision prevail over any requirement for approvals or assessment under the NVA or EPAA, which effectively allows a network operator to set aside important provisions for protection of native vegetation without, apparently, any requirements for accredited experts to actually assess whether the content of the direction is reasonable.92 Arguably, the most interesting aspect of the NVA, from the point of view of strategic planning, is the introduction of a right for landowners to submit PVPs for approval by the minister.93 A plan may propose, for example, offsets that would allow broad-scale clearing to be undertaken that would otherwise be likely to be refused.94 The effect of an approved plan will be to effectively oust requirements for development consent for clearing95 and provide a defence to any charges of harming threatened species or ecological communities that could be brought under the National Parks and Wildlife Act 1974 (NSW) (NPWA).96 Approval for broad-scale clearing (which means clearing of any remnant native vegetation or protected regrowth),97 or approval of a PVP that proposes it, must not be granted unless it improves or maintains environmental outcomes.98 Environmental outcomes assessment methodology for determining environmental outcomes will be applied for the purpose of assessing environmental impacts.99 One welcome addition to this process is the requirement that development consent for broad-scale clearing cannot be granted unless an accredited expert has also assessed and certified that in the accredited expert’s opinion the proposed clearing will improve or

maintain environmental outcomes.100 Clearing for private native forestry (PNF) will be taken to be clearing that will improve or maintain environmental outcomes if it is carried out in accordance with the PNF code of practice.101 Apart from any response to unlawful clearing, a remediation notice may be issued to a landowner where the clearing of native vegetation on any land has caused, or is [page 534] likely to cause, on or in the vicinity of the land, any soil erosion, land degradation or siltation of any river or lake, or any adverse effect on the environment.102 In Terranora Group Management Pty Ltd v Director-General Office of Environment & Heritage [2013] NSWLEC 198, supported in Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84 the Land and Environment Court held that, because this power to make directions is aimed at remediation of the adverse impacts of the unlawful clearing, the order could extend to land other than land directly impacted by the clearing. The Court said that remediation is often best achieved by permitting and promoting natural regeneration, and that remedial work should be carried out in areas likely to provide the greatest conservation gain. 13.22 Where clearing does not specifically infringe native vegetation, wildlife or planning controls, it may trigger an offence of water pollution.103

Queensland 13.23 Queensland enacted the Vegetation Management Act 1999 (Qld),104 although the Queensland government was threatening not to apply the legislation unless the Commonwealth met demands from private landowners for compensation.105 This gave a window of opportunity of nearly a year between assent and commencement for clearance — not surprisingly, a ‘peak period’ for clearing.106 Later, clearing of endangered regrowth vegetation and riparian regrowth in nominated areas was restricted under a moratorium for a period of three to six months while the state consulted with stakeholders about the optimum way to regulate clearing of regrowth vegetation: see 13.26.107 Under the Act, compensation can be claimed from the state where a person incurs loss or expense in complying with requirements of the legislation or because of the exercise of powers under the Act.108 Compensation was

effectively provided through a $150 million structural readjustment package, to ‘reduce the impact’ of the legislation.109 It has been suggested that a more satisfactory approach could incorporate a carbon sequestration scheme under which landowners could be paid for protecting native vegetation.110 Compensation provisions are unusual in modern environmental [page 535] legislation, but this just illustrates once again how politically difficult the introduction of these sorts of controls over private land can be. 13.24 The objects of the Act include the preservation of remnant regional ecosystems,111 the maintenance of ecological processes, the maintenance and increase of biodiversity, reductions of greenhouse gas emissions, and sustainable land use.112 This is largely to be achieved through area management plans,113 clearing controls, codes of practice for development under the planning system (assessment of applications for clearance of vegetation), phasing out of broad-scale clearing of remnant vegetation by 31 December 2006,114 and, interestingly, a framework for decision-making that applies the precautionary principle.115 Entities on whom powers are conferred under the Act are instructed to exercise their functions in a way that advances the purposes of the Act.116 The Act does not affect the ability of local government to also control vegetation clearance.117 13.25 Vegetation is baldly described as any native tree or native plant, excluding grass or non-woody herbage; a plant within a grassland regional ecosystem prescribed under the Regulations;118 and mangroves.119 The minister is instructed to prepare a state policy on management of native vegetation on freehold land that includes outcomes for vegetation management and actions proposed to achieve the outcomes; and special considerations for significant community projects.120 The minister must also prepare regional vegetation management codes, not inconsistent with the state policy, which then become applicable codes for clearing under the planning system.121 The minister [page 536] may also make a code for clearing regulated regrowth vegetation (the regrowth vegetation code), which must be given effect by regulation.122 Under the code, a person who proposes clearing regulated regrowth vegetation on land (a clearing area) must give notice to the chief executive of the intent to do so.123 Areas that fall within identified criteria124 may be declared to be of high

nature conservation value or vulnerable to land degradation.125 Clearing may then be regulated by a code (declared area code); otherwise, the regional vegetation management code will be the applicable code for the area.126 The Act adds the requirement that a property vegetation management plan must accompany a development application for vegetation clearing under the Sustainable Planning Act 2009 (Qld).127 Development applications for clearing must be for ‘relevant purposes’, 128 which include, for example, a project declared to be a significant project under the State Development and Public Works Organisation Act 1971 (Qld); pest control; firebreaks and fences; thinning; clearing of encroachment; extractive industry, clearing of regrowth in certain circumstances; necessary environmental clearing;129 high value agriculture clearing,130 and irrigated high value agriculture clearing.131 For broad-scale clearing, the Act allows for the possibility of an allocation for particular regions and holding of ballots to decide the priority in which applications included in [page 537] the ballot will be assessed against the regional codes for receiving part of the clearing allocation for the region until the allocation is exhausted.132 Like NSW, Queensland has now introduced the concept of self-assessable codes for clearing for a range of ‘low risk’ purposes.133 Clearing under a code becomes self-assessable development under the Sustainable Planning Act 1999 (Qld).134 13.26 A person reasonably suspected of committing a vegetation clearing offence135 may be served with a compliance notice indicating how the matter may be rectified.136 Any contravention of the notice may be met by reasonable action on the part of an authorised officer to prevent the contravention, and by prosecution.

Victoria 13.27 In Victoria, the objectives of the native vegetation standard overlay of the Victorian Planning Provisions (VPPs), which apply to every local planning scheme in Victoria, are to, first, avoid removal of native vegetation; second, if removal cannot be avoided, to minimise the impact; and third, to offset the loss of native vegetation in a manner that makes a contribution to Victoria’s biodiversity that is equivalent to the contribution made by the native vegetation to be removed.137 The overall objective being sought by

these provisions is ‘no net loss’. A permit is required to destroy, lop or remove any vegetation, unless otherwise exempted.138 The application139 must address the matters set out for the appropriate pathway; low, moderate or high risk.140 [page 538] Applications for low-risk vegetation clearance may be evaluated without onground assessment and it will not be necessary to show attempts to avoid or minimise. Medium and high-risk proposals are subject to a more rigorous assessment process that focuses on minimising losses, whether the native vegetation makes a significant contribution to Victoria’s biodiversity and appropriate offsets. These provisions do not apply to areas where a native vegetation precinct plan has been included in the relevant planning scheme,141 though similar processes apply for assessing the impact of applications to destroy or lop any native vegetation. The concept of ‘no net loss’ has replaced the standard of ‘net gain’ applied under previous policies. Despite that, the influence of the approach to conservation of native vegetation displayed in VPP 52.17, as described by Member Potts in Reeve v Hume City Council [2009] VCAT 65 at [85]–[87], seems still relevant: It is my conclusion that with the various amendments to Clause 52.17, there has been a shift in the priority to be given to native vegetation values and the outcomes being sought by state policy, particularly the NVMF.142 The shift is toward the conservation of native vegetation and first two steps of avoiding and minimising losses, but more particularly to avoiding losses. In recognising such a shift, the starting point in contemplating a subdivision (or development) proposal should be to ask the question why such vegetation should be lost rather than how can the loss be offset. The proper approach is to consider first the native vegetation’s conservation significance and any associated biodiversity values. Only then should the form of the proposal be prepared. The zoning of the land is not the starting point. More particularly in respect to this proceeding, the residential 1 zone is not to be interpreted as carrying an overriding or automatic expectation that subdivision, with all its subsequent consequences for loss of native vegetation, can or should occur. In contemplating options for future development potential of this site, the findings set out in these reasons should be borne in mind. Within the framework of Clause 52.17 and the associated objectives of the NVMF, the presence of native vegetation with High and Very High conservation significance is a constraint on development that has to be recognised. Conventional subdivision that would result in a substantive loss of the highly significant native vegetation is not the answer. The native vegetation requires recognition of its conservation significance and biodiversity values with appropriate management through use of reserves nominally in public ownership.143

[page 539]

13.28 Other permitted overlays, such as the Environmental Significance Overlay144 and Vegetation Protection Overlay,145 also allow local authorities to impose tighter controls on particular areas or significant trees or treelines — for example, alongside roadside reserves — in addition to the controls specified in VPP 52.17. The focus of the Catchment and Land Protection Act 1994 (Vic) is more on land degradation and controlling pests and weeds, although clearing that causes land degradation could be addressed under this Act. For example, special area plans may be developed that identify ‘land management issues’ and may identify the necessity for land use conditions that relate to the management of those areas to be imposed on landowners.146 Regional catchment strategies might also be expected to address land degradation caused by clearing.147 Land management notices addressed to landowners may prohibit or regulate land use or land management practices.148 13.29 Activities that may lead to degradation in particular parts of rivers and river catchments may also be regulated under the Heritage Rivers Act 1992 (Vic).149 Specific land and water uses — for example, timber harvesting and water diversions — may be restricted or prohibited in such areas.150

Western Australia 13.30 In Western Australia, the general thrust of the Soil and Land Conservation Act 1945 (WA)151 extends to the removal or deterioration of natural or introduced vegetation and the protection of natural vegetation. District committees advise the commissioner on such matters and report on methods of land utilisation and management, or degradation, within their own land conservation districts. Whenever land degradation is occurring, or is likely to occur, because of any agricultural or pastoral practices, clearing, destruction of trees, shrubs, plants or grasses, failure to control soil erosion, or salinity or flooding, the commissioner may serve a soil conservation notice on the owner or occupier of the land specifying what needs to be done to prevent the degradation.152 Conservation covenants and agreements may also be used to set land aside for the protection and management of vegetation.153 More focused controls have been introduced under the Environmental Protection Act 1986 (WA) (EPA).154 These provisions are intended to provide an overarching legislative scheme for the protection of native vegetation; and a clearing permit [page 540]

obtained under some other legislation does not relieve a person of the requirement to obtain, in addition, a permit under the EPA. It may be necessary therefore for a person to obtain more than one permit in order to clear native vegetation in some areas.155 Unauthorised clearing156 is an offence.157 Clearing is only authorised if done in accordance with a clearing permit; is of a kind set out in Sch 6 of the Act, which indicates a wide range of circumstances in which a permit is not required, including clearing undertaken for purposes approved under other legislation; or is of a prescribed kind158 and not done in an environmentally sensitive area.159 In considering an application for a clearing permit,160 regard must be had to the clearing principles set out in Sch 5 of the Act.161 A decision cannot be made that is seriously at variance with those principles unless there is ‘good reason for doing so’,162 in which case reasons must be published.163 The Supreme Court may issue ‘clearing injunctions’ to restrain contraventions of the Act.164

Planning provisions 13.31 Protection of native vegetation in all states is also commonly furthered through planning controls, particularly in relation to urban development that is not caught up by broad-scale clearance restrictions. Indeed, there is considerable scope for state and local government to initiate policies for biodiversity protection through both strategic planning instruments and development controls.165 For example, in New South Wales, state environmental planning policies (SEPPs), in relation to coastal [page 541] wetlands (Policy No 14) and littoral rainforests (Policy No 26), require consent to be obtained before land clearance and disturbance to native flora can take place. SEPP 44 (koala habitat protection) states that before a council may grant consent to carry out development on land that is core koala habitat, there must be a plan of management prepared for that land.166 In the Northern Territory, a person must not develop land by the clearing of native vegetation except in accordance with a planning scheme, interim development control order or a permit. Any one or more of the following persons may be prosecuted for illegal clearance: (a) an owner of the land; (b) an occupier of the land; (c) a person apparently in charge of the clearing of native vegetation on the land. In a prosecution of a person for an offence of illegal clearing it is not a defence that the person had no knowledge of the

requirements of a planning scheme, interim development control order or permit relating to the clearing of native vegetation on the land.167 13.32 Land clearing may also be regulated as ‘development’ by local environmental plans (LEPs) or planning schemes,168 which effectively requires that removal of trees and other native vegetation may only be carried out with development consent,169 unless there is an immediate risk of personal injury or damage to property170 or the activity is otherwise exempted from being required to obtain consent; for example, because the clearing will have minimal environmental impact.171 Retention of native vegetation to support coastal dunes and foreshores is also likely to become more important as the potential impacts of climate change impress themselves more on coastal planning.172 [page 542]

Trees 13.33 Protection of trees can be made the subject of conditions of any development consent, a breach of which is likely to be treated as an offence of strict liability.173 In South Australia, the requirement under the Development Act 1993 (SA) to obtain approval for a tree-damaging activity174 in relation to a regulated or a significant tree175 applies despite the fact that the activity may be permitted under the Native Vegetation Act 1991 (SA).176 Significant trees, such as those with important heritage qualities, may also be protected individually through heritage listings or some other form of registration.177 13.34 Local councils may also use their powers under local government legislation to issue local orders or by-laws, often known as ‘tree preservation orders’. These seek to preserve trees in reserved areas and significant trees by prohibiting their removal without permission, unless prescribed conditions are met; for example, the trees are under certain size limits or too close to homes.178 The inclusion of tree preservation in the zoning provisions of a LEP or planning scheme will also direct attention to protection of trees in the development process; and proposals that do not reasonably further this objective may be refused on this ground.179 It should not be assumed, for example, that just because a tree is dead it should be allowed to be removed. Dead trees may carry hollows that may provide nesting sites for native species.180 Failure to comply with a tree preservation order may also be prosecuted as an offence of strict liability.181

[page 543]

Offsets for Clearance of Native Vegetation 13.35 An offset is basically any works or other action that makes reparation for losses of native vegetation; or, more specifically, an agreement to carry out works or activities to conserve, enhance, maintain, monitor or rehabilitate an area of vegetation.182 More controversially, offsets may make financial compensation as part of an offset arrangement (generally up to 10 per cent of the offset investment for research or education programs). There are basically three avenues through which offsets may be negotiated: by way of a planning agreement between a developer and the consent authority;183 by conditions of development consent;184 or through conditions of approval for clearance of native vegetation where that does not require development consent but requires some other form of approval.185 13.36 Offsets are intuitively contentious, for obvious reasons: first, what is certain is that native vegetation will be destroyed on the development site; second, although the offset site must generally be maintained ‘in perpetuity’ for offset management,186 this may be inherently insecure;187 third, where there is no current proposal to develop, or threat to, the offset site, it may in any case never be affected, with or without being designated as an offset site, in which case there will effectively be loss without real gain; fourth, it is virtually impossible to offset both qualitative and quantitative proportional values from one site to another, even if ratios of say 6:1, 10:1 or whatever are applied to the offset — that is, that for every hectare of land cleared, six or 10 hectares of offsets must be provided. 13.37 Opponents claim that ‘offsetting, while innovative in its technical aspects, is a limited, economic rationalist response to the core development/environment dilemma. It does not help to establish or entrench society’s values with respect to biodiversity’.188 Opponents also argue that given the scientific uncertainties surrounding this approach, biodiversity retention would be much better than trying to recreate habitat — ‘restoration ecology’.189 ‘The claim that overall biodiversity values can be [page 544] maintained or improved in a system based on gradually eroding the stock of

patches of remnant vegetation has a rhetorical element and is counterintuitive.’190 Nevertheless every jurisdiction now has offsets policies that broadly implement the proposition that offsets should only be considered as a ‘last resort’ for otherwise supportable projects after avoidance and minimisation of impacts on biodiversity have first been considered; but biodiversity offsetting practice across Australia is still inconsistent, complex and confusing.191 The oft-held suspicion is that the concept of ‘last resort’ frequently gives way to slack regulatory control that allows offsets to be built into a proposal at the outset, producing no more than symbolic and hollow attempts to curb biodiversity decline.192 This legitimate concern must be allayed by the rules applied to offsetting and by decision-makers, including the specialist courts and tribunals that have, it must be said, generally applied rigorous standards to offset schemes. In New South Wales, however, scrutiny by the Land and Environment Court of offsets conditions on major projects can be avoided by the minister referring proposals to the Planning Assessment Commission (PAC) for a public hearing.193 13.38 In Victoria, if a permit to remove native vegetation is granted, an offset that makes an equivalent contribution to Victoria’s biodiversity will be required. Offset requirements are determined in accordance with the ‘Permitted clearing of native vegetation: Biodiversity assessment guidelines’ (2013).194 The previous policy that offsetting must produce a ‘net gain’ has however been replaced by a policy of ‘no net loss’, which must be regarded as a more relaxed standard.195 Permit holders seeking offsets can request searches of the BushBroker database for native vegetation credits that match their requirements, and then purchase sufficient credits to satisfy the required offset.196 Some commentators, however, point out the inadequacies of attempting to manage vegetation and interrelated ecosystems on a site-specific basis, rather than by adopting broader ‘landscape’, or [page 545] strategic regional, approaches, such as by use of regional vegetation plans and native vegetation precinct plans.197 Queensland has also developed an Environmental Offsets Policy198 that, similar to Victoria, requires that impacts from development must first be avoided and minimised before offsets should be considered. The Environmental Offsets Act 2014 (Qld) defines an offset as ‘an activity

undertaken to counterbalance a significant residual impact of a prescribed activity on a prescribed environmental matter’.199 The main purpose of offsets seems to be to deliver a satisfactory ‘conservation outcome’.200 A conservation outcome is achieved by an environmental offset for a prescribed activity for a prescribed environmental matter if the offset is selected, designed and managed to maintain the viability of the matter.201 An administering agency may impose an offset condition only if satisfied that all reasonable on-site mitigation measures for the prescribed activity have been, or will be, undertaken.202 An offset may be in the nature of, or include, a financial settlement;203 though determined amounts must be in accordance with the Offsets Policy.204 Where an environmental offset agreement is concluded with a relevant agency, a landowner may apply to have the land declared to be an environmental offsets protection area, which will bind future owners of the land.205 Legally secured offset areas may also be declared under the provisions of other legislation.206 13.39 In Western Australia, environmental offsets are most often applied to proposals that are subject to environmental impact assessment (EIA) and as a condition of approvals for clearing native vegetation under the Environmental Protection Act 1986 (WA); but may also be considered in relation to proposed developments under [page 546] the Planning and Development Act 2005 (WA),207 and mining proposals under the Mining Act 1978 (WA).208 As in other jurisdictions, environmental offsets, which are focused on strategic outcomes and applied in the context of adaptive management, will only be considered after avoidance and mitigation options have been pursued. 13.40 There are two categories of environmental offsets. Direct offsets are actions designed to provide for on-ground improvement, rehabilitation and conservation of habitat; for example, by land acquisition, restoration, revegetation and rehabilitation of natural areas outside the project area. Indirect offsets are actions aimed at improving scientific or community understanding and awareness of environmental values that are affected by a development or activity. These actions are designed to result in positive conservation outcomes and may include research to improve the management and protection of existing conservation areas or contributions to state government initiatives, policies or strategic funds. 13.41 In South Australia, the legislation does not directly refer to offsets, though as a condition of consent an offset would normally be required.

However, the council may give its consent to the clearance of native vegetation that is seriously at variance with the principles of clearance of native vegetation if the council has adopted guidelines that apply to the region where the native vegetation is situated; and the council is satisfied that a significant environmental benefit, which outweighs the value of retaining the vegetation, is to be achieved through the imposition of conditions and the taking of other action by the applicant; and the particular circumstances justify the giving of consent.209 For clearing authorised on the grounds of unreasonable expense to primary producers, it appears that an offset may be delivered by way of a contribution to the Native Vegetation Fund to establish or regenerate native vegetation on land that is within the same region of the state as the relevant land.210 The clearance of vegetation that is authorised under the Native Vegetation Regulation 2003 reg 5 must either deliver a significant environmental benefit or a payment must be made into the fund. A person may also gain credit for achieving an environmental benefit that exceeds the value of the minimum benefit needed to offset the loss of the cleared vegetation; and that credit may be applied to the environmental benefit required to be achieved or compensation deemed payable.211 13.42 In Tasmania, as part of the development assessment process, a ‘natural values assessment’ produced by an applicant for consent may suggest biodiversity offsets for impacts to threatened species and native vegetation communities.212 An offset is only available after the avoid/mitigate hierarchy has been applied. The offset can be created [page 547] by way of conservation measures or management activities; for example, improved conservation status of a site, restoration or re-vegetation, and research or surveys.213 Direct offsets are preferred, but indirect offsets may be allowed. Some local councils policy seems to be to achieve ‘net gain’ from the use of offsets.214 In the Australian Capital Territory offsets may be applied for significant adverse environmental impacts on protected matters.215 Offsets must be consistent with the Australian Capital Territory Environmental Offsets Policy (2015).216 13.43 In New South Wales, the distinction between rural (Native Vegetation Act 2003 (NSW) (NVA)) and urban/coastal (Environmental Planning and Assessment Act 1979 (NSW) (EPAA)) offsets is made clearer by the nature of the legislative schemes, although this does not necessarily make for a more focused response to urban and rural clearing. Farrier et al

comment that the NVA ‘makes a real attempt to grapple with the issue of biodiversity conservation’; while, by contrast, the EPAA is, in this regard, ‘disjointed, haphazard and confused, unable to escape the planning system’s traditional addiction to unsustainable development’.217 13.44 Offsets for clearing under the NVA are focused upon the need for an approved PVP see 13.63. Offsets for clearing under the EPAA218 can be required as a result of a voluntary planning agreement (VPA) entered into by a proponent and made a condition of development consent;219 or could be required where statutory provisions allow the consent authority to specify a condition of consent requiring dedication of land free of cost, or payments of monetary contributions, where the development might require or increase the demand for public services and public amenities.220 For example, in Lake [page 548] Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225, such a condition was imposed requiring payment of moneys for ‘conservation land requirements’, more specifically to provide for a vegetation corridor; although in the event the condition was later struck out in a merits appeal on the basis of lack of perceived demand. 13.45 In Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council (2006) 153 LGERA 355, it was said that an offset under a planning agreement221 might be appropriate where a proposed development implemented all available prevention and mitigation measures was justified, and where the development might otherwise proceed without an offset; although in this case the offset was rejected as not based on sound ecological principles, and there was ‘meagre evidence’ to the effect that better alternative sites were unavailable, indicating a strict and comprehensive approach would be required to support any claim for an offset. The court also thought, though did not decide, that it would not have the power to require the applicants to pay a monetary contribution in relation to acquisition of compensatory land in the absence of an offer to enter into a planning agreement; that is, the general power under the EPAA s 80A to impose conditions of consent would not justify such a condition. In fact, it is now well established that the only source of power authorising the imposition of a condition on a development consent requiring the payment of a monetary contribution is to be found in the EPAA s 94.222 13.46 In Gerroa Environment Protection Society Inc v Minister for Planning

and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173 at [116]–[134] and Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254, Preston CJ allowed an offset for vegetation clearing by way of planning agreement by reference to the following criteria:223 (a) Restoration of the values lost from clearing is feasible or the vegetation proposed for clearing is unlikely to persist: The loss of native vegetation is not an optimal situation but, balancing the other relevant matters, the removal of the vegetation can be accepted. (b) Clearing the vegetation does not constitute an immediate risk to a species, population or ecological process. (c) There is adaptive management. (d) Offsets should provide values for periods commensurate with impacts from clearing: Offsets should be secured over time frames that can span changes in land ownership and tenure. The planning agreement must provide for the implementation of [page 549] compensatory planting, protection of the vegetated conservation area (including existing vegetated areas to be conserved and the compensatory planting areas) in perpetuity, implementation of a Landscape and Rehabilitation Management Plan, and insurance of the conservation area against the impact of fire or vandalism. (e) There must be adequate compliance: The efficacy of offsets is dependent upon adequate compliance. This requirement can be satisfied by the conditions of approval, including the requirements of a VPA, landscape and rehabilitation management plan, landscape and rehabilitation bond, environmental management plan, environmental monitoring program, incident reporting, annual reporting, independent environmental audit and community consultative committee. Where ‘like for like’ offsetting cannot be achieved, ratios of loss to offset are likely to be much higher than 1:1. The appropriate amount of offset will depend on the nature, size and location of the vegetation in question. In Gerroa, for example, the offset was closer to 20:1;224 while in Caruso v Sydney Water Corporation [2008] NSWLEC 320 (a valuation case), a ratio of 6:1 was accepted as appropriate; and in Stanton Dahl Architects v Penrith City Council [2009] NSWLEC 1204 at [166], a ratio of 1:9.2 was deemed acceptable for the endangered Cumberland Plain Land Snail.225 In Buzzacott v Minister for

Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111 an offset plan providing at a minimum a ration of 8:1 was deemed lawful; though the judgment did not deal directly with the criteria on which this assessment had been based. 13.47 In Taylor v Port Macquarie-Hastings Council [2010] NSWLEC 113 at [43] (also a valuation case), the remark was made that: … if the whole of the Land were to be cleared, mitigation measures could comprise offset [compensatory] planting regimes on other land. [It was] acknowledged that the governmental rule of thumb accepted by the RTA [Roads and Traffic Authority] was between 5 and 20 times the area taken by the works, depending on the rarity of the particular vegetation. [It was] accepted that that would not mitigate the impact on the wildlife corridor but proposed that that could be mitigated by strengthening other areas of the corridor, by buying and planting out other areas of the corridor or through arrangements with the property owners.

[page 550] 13.48 The recent development by the New South Wales Department of Environment, Climate Change and Water (now the Office of Environment and Heritage (OEH)) of assessment methodology to support the application of biobanking (see 13.64) may now be used to test the adequacy of vegetation offsets offered up to support applications for development to local councils: Glendinning Minto Pty Ltd v Gosford City Council [2010] NSWLEC 1151. This case also brings into sharp relief the concurrence powers that can be exercised by OEH in respect of proposed development impacting upon biodiversity and assessment of possible offsets to gain such concurrence: see 10.19 and 14.96. Under the EPAA s 79B(8A), (8B), the concurrence of OEH can be conditional upon a ‘voluntary action’ that will significantly benefit threatened species, such as securing the protection of land for conservation purposes. Under the Land and Environment Court Act 1979 (NSW) s 39(6), the New South Wales Land and Environment Court (NSWLEC) can determine merits appeals about suitable offsets in the absence of such concurrence; but nevertheless would take into accounts comments received from OEH. 13.49 In Glendinning, the court directed that the offset proposal should be referred to the department for guidance. Comments received back from the department, which had run the offset proposal against the biobanking methodology, then caused a revised offset plan to be prepared. In the end, however, Commissioner Tuor was not convinced, commenting (at [86]): The offset proposal is not in a form which I am satisfied meets the benchmark of improving and maintaining biodiversity values [as would be required under the biobanking rules226 though not specifically by the EPAA]. In each of the offset proposals there is a shortfall in the number of woodland offset credits [as would be calculated under the biobanking criteria]. This is

understandable given that the majority of the vegetation to be disturbed for which an offset is required is woodland. However, this shortfall requires that a degree of discretion be exercised to ensure that the benchmark of improving and maintaining biodiversity values is met. … the assumptions utilised in the offset proposals differ from those used by DECCW.227 While under s 39(6) of the LEC Act the Court can grant consent without the concurrence of DECCW. However, given its stated concerns, the different assumptions and the questions in relation to the adequacy of the offset package, I find that it is inappropriate for me to do so in the absence of support from DECCW or clear expert evidence which addresses its concerns. The use of the biobanking assessment methodology is relatively new and complex. It is important that it is implemented in a rigorous manner and in this regard, the concerns of DECCW are relevant.

13.50 The ‘maintain or improve’ test adopted in this case is interesting because, apart from the fact that it does not appear in the EPAA, a previous case had adopted a different test. In Motorplex v Port Stephens Council (No 3) [2008] NSWLEC 1280, the court said that the cardinal principle of offsetting should be ‘no net loss’, and that offsets will only contribute to no net loss if the parameters adopted in Gerroa Environment [page 551] Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173 at [116]–[134] and Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254 were adopted: see 13.53 below. Whether the application of these principles allows offsets from a development in one council area to be proposed in another council area is problematic. Such an approach would have clear implications for enforceability: the consent authority would have no clear powers to enforce conditions of development consent in the jurisdiction of another planning authority. Whether this could be overcome by agreement between the two affected councils remains a moot point. Further advice may need to be sought where such a proposal becomes an operational possibility. 13.51 Offsets may also be applied as conditions to development consents — for example, for subdivisions228 or for mining or quarrying operations — where the court has referred to ‘gains’ to biodiversity rather than ‘no net loss’. In Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48, the court proposed, taking into account the precautionary principle, to extend an offset from 0.2 ha of land to 6 ha. In the event, this 6 ha became effectively 66 ha. As the court explained (Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd (No 2) [2010] NSWLEC 104 at [12]): The final conditions also ensure adequate offset is provided for damage caused to the White Box endangered ecological community by the proposed development. The offset is not merely the

supplementary 6ha area to be included in the extended Project Site. It also includes the longterm conservation of the vegetation on all of the Project Site not directly to be quarried or used for ancillary works and uses (54ha) as well as, after quarrying operations have finished, the rehabilitation and conservation of the areas damaged and used for quarrying operations (6ha). The long-term conservation of the White Box endangered ecological community on the combined area of 66ha will be required by the final conditions of consent … I am satisfied that there will be gains in the conservation of biodiversity of sufficient magnitude in these total offset areas to compensate for the loss of vegetation during quarrying operations.229

‘Net gain’ may be a test required by a LEP, in which case this will be the test applied by the court in any merits appeal.230

Offsets are a ‘last resort’ 13.52 Opponents to offset schemes argue that given the scientific uncertainties surrounding this approach, biodiversity retention would be much better than trying to recreate habitat (‘restoration ecology’). ‘The claim that overall biodiversity values can be maintained or improved in a system based on gradually eroding the stock of [page 552] patches of remnant vegetation has a rhetorical element and is counterintuitive.’231 In other words, offsets should be considered only as a last resort, an approach that has now been adopted by all offsets policies. In Reeve v Hume City Council [2009] VCAT 65, for example, the tribunal said: [T]he starting point when contemplating a subdivision (or development) proposal, should be to ask the question why such vegetation should be lost rather than how can the loss be offset. The latter approach has more often than not been adopted for infill urban subdivisions and developments. More particularly, the zoning of the land is not the starting point in considering the suitability of a subdivision proposal. The proposition that a residential zoning carries with it an overriding or automatic expectation that conventional subdivision can or should occur, with all its subsequent consequences for loss of native vegetation, is not accepted. What is called for on such land is innovation that enables the retention of significant native vegetation on the land.

13.53 A similar approach was adopted by the Land and Environment Court in Roach v Pittwater Council [2007] NSWLEC 607 at [33]: The applicant made an offer to enter into a planning agreement with Council under the Environmental Planning and Assessment Act 1979 for an offset arrangement to compensate for the loss of that part of the rainforest its experts agreed would be lost on the site. The agreement would endow funds of $100,000 in a trust for … maintenance and environmental management … In this case the council would not agree to an offset because it was proposed, really, as a justification for destruction of LRF (littoral rainforest). The real purpose of an offset where it has been used by other Authorities has been as a tool to get a managed result … This proposal destroys the ‘heart’ and most of the LRF, it is only the perimeter that is said to be preserved … There is no replacement or regeneration of the lost LRF possible, its micro-climate, soil, water

supply, exposure and topographical requirements are so specialised one cannot just expand the LRF … or, go out and plant a new LRF in the same way one can find new sites for and plant other forms of bushland. In tacit recognition of this the applicant has offered to condition the endowment to allow council to spend offset funds on other LRF areas. Once again this belies the fact that the subject LRF is destroyed and there is a net loss to the existing reserves of endangered ecological community LRF in the region.

13.54 The minister has also adopted such an approach in determining proposals for offsets under the (now repealed) EPAA Pt 3A ‘by preventing, mitigating, remediating and, only as a last resort, providing suitable offsets to compensate for any residual impacts not dealt with by the other mechanisms’.232 So long as such an approach is maintained it should effectively deal with the tendency of developers to try to minimise environmental impacts by offering up offsets as a means of claiming that a project will therefore have minimal environmental consequences; even if offset strategies are proposed in the EIA that accompanies an application for development consent and subsequently used as a starting point for [page 553] consideration of offsets.233 In Glendinning Minto Pty Ltd v Gosford City Council [2010] NSWLEC 1151 at [88], the NSWLEC said that ‘the offset proposal is a fundamental consideration in determining whether the development has acceptable ecological impacts and is not a matter, which is ancillary to the development that can be dealt with by conditions’. It is clear from this approach that a project must be considered on its merits before the question of offsets can become relevant. 13.55 Failure to carry out the terms of a planning agreement can be secured by a bond, guarantee or other ‘suitable means’.234 In Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378, the New South Wales Court of Appeal remarked that: … the use of the general expression ‘suitable means’ in s 93F(3)(g) of the EPA Act reflects the very wide range of obligations that a planning agreement may impose on a developer and the variety of mechanisms for enforcement of those obligations that may be ‘suitable’. For example, the 2010 Agreement obliged the Land Owner to transfer ‘Conservation Offset Lands’ to the Minister: Sch 5, Table 2. If the Land Owner failed to transfer the Lands, the Agreement stated that it consented to the Minister compulsorily acquiring the whole or any part of the Conservation Offset Lands for $1.00: Sch 4, par 2.4. It was not suggested that this enforcement mechanism was not a ‘suitable means’ of enforcement, notwithstanding that consent to compulsory acquisition for a nominal sum does not appear to have significant characteristics in common with a bond or guarantee.

13.56 PVPs235 that propose clearing in rural areas under the NVA236 may propose offsets237 to support the clearing potential. In particular, a plan that proposes broadscale clearing may need offsets because the minister may not approve such a plan unless the clearing concerned will ‘improve or maintain’ environmental outcomes.238 A PVP is essentially an agreement negotiated between Local Land Services and a landholder that establishes areas on the land for clearing, offsets and incentives.239 The Environmental Outcomes Assessment Methodology240 provides a methodology for assessing and determining whether proposed broad-scale clearing will improve [page 554] or maintain environmental outcomes; offsets therefore are specifically linked to this requirement.241 13.57 By contrast, the Biodiversity Banking and Offsets Scheme (BioBanking), set out in the Threatened Species Conservation Act 1995 (NSW) Pt 7A is intended to address the clearing of native vegetation for urban development.242 The practical effect of the issue of a biobanking statement in relation to a particular development by the Director-General of National Parks and Wildlife is that the development is taken not to significantly affect threatened species, populations or ecological communities, or their habitats, and as such is not subject to the concurrence of the Director-General of National Parks and Wildlife, which would otherwise be required under the EPAA (see 10.19); although the concurrence of the Director-General of Planning to the issue of the biobanking statement for development that would otherwise require concurrence may be required under a state environmental planning policy. The biobanking scheme has the following key elements:243 (a) the establishment of biobank sites on land by means of biobanking agreements entered into between the minister and the owners of the lands concerned.244 Certain land is excluded from being considered as a biobank site; for example, land already subject to an offset under a PVP approved under the NVA; subject to consent requirements under the EPAA; or because uses of the land are inconsistent with biodiversity conservation.245 An agreement runs with the land246 and will have effect ‘in perpetuity’ unless terminated by agreement or otherwise under the Act.247 The minister may order rectification of any breach of an agreement;248 and any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of a biobanking agreement;249

[page 555] (b) the creation of biodiversity credits in respect of management actions carried out or proposed to be carried out on or in respect of biobank sites that improve biodiversity values;250 (c) a system that enables those biodiversity credits, once created and registered, to be traded (including by being purchased by developers) and used as an offset against the impact of proposed development on biodiversity values;251 and (d) the establishment of a biobanking assessment methodology252 for the purpose of determining both the number of biodiversity credits that may be created in respect of management actions or proposed management actions and the number of biodiversity credits that must be retired in connection with a development to offset the impact of the development and ensure that it improves or maintains biodiversity values. 13.58 A person who requires an offset253 for a development proposal may apply to the Director-General for a biobanking statement in respect of that proposal.254 A statement must be refused if the proposal does not maintain or improve biodiversity values;255 and may be refused if the application does not sufficiently address the Biobanking Assessment Methodology (2014),256 or if, in the opinion of the Director-General, the applicant has not demonstrated that all cost-effective on-site measures to minimise any negative impact of the development on biodiversity values are being or will be carried out.257 Planning concurrence may also be required in circumstances described in a State Environmental Planning Policy.258 One of the prime considerations in issuing biobanking statements will be to convince the public that an offset is not being used to reward ongoing ‘poor performance’.259 One way of doing this is to set regulated minimum offset ratios rather than allow flexible negotiated standards to dominate.260 The New South Wales biobanking scheme attempts to do this by making the provision [page 556] of offsets dependent on the BioBanking Assessment Methodology, which is applied by an accredited consultant. 13.59 One effect of the issue of a statement is that it will no longer be necessary for the development to comply with the threatened species protection measures provided for by the EPAA Pts 4 and 5, in particular the requirement to produce a SIS.261 The developer, however, may be required to purchase and retire sufficient biodiversity credits under the offset scheme to

ensure that the impact of the development on biodiversity values is offset, and may have to take other on-site measures to minimise any negative impact on biodiversity values.262 A landowner, applicant or holder of a biodiversity credit who is dissatisfied with a decision about registration of a biobank site or credit arrangements may appeal to the court.263 13.60 It is rather too early to tell whether the win–win objectives of offsetting are being met.264 Certainly, in the short term a developer who purchases offset credits will be able to progress a proposal for development; in the longer term, the time frame of perpetuity sets a difficult benchmark for analysis of success for conservation of biodiversity values. A review of the Biobanking Scheme has found that the scheme has been effective, but expresses concerns about supply, costs and time delays; and recommends the provision of a standardised, consistent and scientific approach to measuring biodiversity impacts at development sites, and biodiversity gains at offset sites.265 Conditions of approval that require monitoring and adaptive management of outcomes will help.266 The concept and structure of offset schemes has, however, received detailed scrutiny. Proponents point out that many developments required to be offset would be approved anyway without offset schemes being in place, in the absence of such provisions; and that ecosystems that are degenerating, for example because they are not large enough to be self-sustaining, would disappear anyway in time, so the chance to protect an offset site should not be missed, especially considering that offset sites may themselves come under future development pressures. 13.61 In Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Ltd [2013] NSWLEC 48 at [147– 152] Preston CJ laid down a legitimate approach to offsetting that may well become the benchmark for decision-making in all jurisdictions: 1.

The strategies for managing the adverse impacts of a project on biological diversity are, in order of priority of action, avoidance, mitigation and offsets. Avoidance and mitigation measures should be the primary strategies for managing the potential adverse impacts of a project. Avoidance and mitigation measures directly reduce

[page 557] the scale and intensity of the potential impacts of a project. Offsets are then used to address the impacts that remain after avoidance and mitigation measures have been put in place (see ‘Principles for the Use of Biodiversity Offsets in NSW’, Office of Environment and Heritage (TB vol 7, p 4117)). 2.

The first strategy is to endeavour to avoid the potential impacts of a project. Avoidance of impacts may be achieved through planning and assessment of the project including suitable site selection and project design. An example would be modifying the project to avoid an area of biodiversity value, such as an endangered ecological community or habitats of

threatened species or populations. 3.

If after implementing all reasonable avoidance measures, there are remaining impacts, the next strategy is to undertake mitigation of the remaining impacts. Examples are implementing measures to prevent or reduce offsite impacts on areas of biodiversity value, such as edge effects, weed invasion, altered fire frequency or altered hydrological regimes.

4.

If after all reasonable avoidance and mitigation measures have been implemented, there are still residual impacts, offsets can then be considered. Offsets do not reduce the likely impacts of a project, but rather compensate for the residual impacts. An offsets package can involve direct offsets or other compensatory measures. Direct offsets are actions which provide a measurable conservation gain for the affected components of biological diversity, such as endangered species, populations or ecological communities. Conservation gain is the benefit that a direct offset delivers to the affected component, which maintains or increases its viability or reduces any threats of damage, destruction or extinction.

5.

Other compensatory measures are actions that do not directly offset the impacts on the components of biological diversity but are expected to lead to benefits for the affected components. An example would be undertaking or funding the undertaking of research programs relating to the affected components of biological diversity.

This approach precludes applicants for development consent simply building in an offset as part of project design; an offset really should be a ‘last resort’ after all other avoidance and preventative measures have been applied.

Offsets under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) 13.62 The EPBCA does not directly apply to native vegetation; however, it does apply to threatened species and ecosystems, and clearing of native vegetation may significantly impact on these matters of national environmental significance.267 Although the term ‘offset’ does not appear in the EPBCA, there is an EPBC Act Offsets Policy (2012).268 The policy defines an offset as a measure that compensates for the residual impacts of an action on the environment, after avoidance and mitigation measures are taken. It is to be considered generally at the environmental [page 558] assessment (EA) stage of a proposal so that it can then inform any subsequent decision to approve or not to approve a proposed action. In determining whether an offset is a suitable option, a risk-based approach incorporating the precautionary principle must be applied. Offsets must directly contribute to the ongoing viability of the protected matter impacted by the proposed action, and deliver an overall conservation outcome that improves or maintains the viability of the protected matter as

compared to what is likely to have occurred under the status quo — that is, if neither the action nor the offset had taken place. Offsets must also deliver a ‘conservation gain’ for the impacted protected matter, which must be new, or additional to what is already required by a duty of care or by any environmental planning laws at any level of government. Direct offsets must be a minimum of 90 per cent of the total offset requirement.269 The remaining offset requirement (up to a maximum of 10 per cent) may be made up by ‘other compensatory measures’. Deviation from the 90 per cent direct offset requirement will only be considered in limited circumstances. The policy also introduces the concept of ‘advanced offsets’, described as a supply of offsets for potential future use, transfer or sale, established before any impact is undertaken. While an advanced offset can reduce an overall future offset requirement, it should not influence whether or not an action referred under the EPBCA will be determined to be acceptable.

Crown leases 13.63 It is ironic that the clearing of land, which has been so much a part of the ‘taming’ of Australia for generations and encouraged through government subsidies and tax concessions,270 is now being actively discouraged as the causes of biodiversity loss and land degradation are becoming more generally recognised and better understood. Rather than being required to remove trees and vegetation to effect ‘improvements’271 to Crown pastoral, grazing and other leases, lessees are now required to obtain permission to clear vegetation and are instructed to avoid degradation. 13.64 In New South Wales, interests covered by the Crown Lands (Continued Tenures) Act 1989 (NSW) are instructed not to degrade the land.272 Clearance of leased land by tree-felling and vegetation preservation in the Western Division is regulated by requiring that permission be granted under the Western Lands Act 1901 (NSW).273 [page 559] In Keech v Western Lands Commissioner (2003) 132 LGERA 23, the court upheld the commissioner’s right to revoke a cultivation permit for breaches of clearance controls that threatened sustainable management. 13.65 In the Northern Territory, the expressed object of the Pastoral Land Act 1992 (NT) is to provide a form of tenure of Crown land that facilitates sustainable use of pastoral leases while maintaining their economic

viability.274 All pastoral leases are made subject to a condition that all reasonable measures are to be taken to conserve and protect features of environmental, cultural, heritage or ecological significance.275 The right to take timber and trees from Crown land and pastoral leases is reserved to the Crown and the destruction of trees without a permit is prohibited.276 13.66 In Queensland, all Crown leases, licences and permits are subject to a duty of care for the land, which includes conserving biodiversity, protecting riparian vegetation and maintaining native grassland free from encroachment by woody vegetation.277 Conditions of occupation may include provisions relating to sustainability, care and protection of the land,278 and these issues may be tackled by issue of a remedial action notice if necessary.279 If a lease contains a reservation for a future conservation area, the land must be managed in accordance with the stipulated management principles, which are: (a) that any use of their natural resources for agriculture or grazing is to be ecologically sustainable; (b) that they are to be maintained predominantly in their natural condition; and (c) that their significant cultural and natural resources are to be protected.280 13.67 In South Australia, under the Crown Lands Act 1929 (SA), notwithstanding any provision to the contrary in any lease or agreement, clearance of vegetation was not to be regarded as a required stipulation.281 This Act has now been repealed,282 but the new Crown Land Management Act 2009 (SA) confirms that the minister may waive compliance with conditions of a lease or licence.283 All exercises of discretion under this Act have to give due regard to the principles of Crown land management, which include ecologically sustainable land management.284 Provisions of the National Parks and Wildlife Act 1972 (SA) may also be declared to apply to specified Crown land for up to two years, although a notice making such a declaration cannot be applied [page 560] to land occupied by others.285 The minister is also instructed, to the extent allowed by available financial resources, to carry out work for the conservation, protection and rehabilitation of unalienated Crown land.286 Remediation notices may also be served on persons who have caused or contributed to a condition on or of the land that requires remediation.287 13.68 Pastoral leases, for the pasturing of stock,288 are dealt with separately289 under the Pastoral Land Management and Conservation Act 1989 (SA). The objects of this Act are, among other things, to ‘ensure that all pastoral land in the state is well managed and utilised prudently so that its

renewable resources are maintained and its yield sustained’, as well as to prevent degradation to land and indigenous plant and animal life and ensure rehabilitation.290 Pastoral lessees have a duty under the Act to carry out good land management practices, prevent degradation and, within the limits of financial resources, improve the condition of the land.291 Where ‘land has, from any cause, been damaged, or is likely to suffer damage or deteriorate, and that in order to prevent, arrest or minimise damage to or deterioration of the land, or to rehabilitate the land’ it is necessary that action be taken, then a lessee may be required to submit a property plan detailing the proposed management of the land over a specified period.292 It is an offence to damage pastoral land, and pollute water or damage living trees or bushes thereon without lawful authority.293

1.

See .

2.

Australia’s Native Vegetation Framework 2012 Available at .

3.

See, for example, Port Stephens Council v SS and LM Johnston Pty Ltd (2007) 152 LGERA 193. See also 12.35 and following.

4.

Farrier, ‘Vegetation Conservation: The Planning System as a Vehicle for the Regulation of Broadacre Agricultural Land Clearing’ (1991) 18 MULR 26 at 59.

5.

See also Farrier, ‘Regulation of Rural Land Use: Coercion or Consensus?’ (1990–91) 2 Current Issues in Criminal Justice 95 on land management and property agreements.

6.

See Bonyhady, ‘Property Rights’ in Bonyhady (ed), Environmental Protection and Legal Change, Federation Press, Sydney, 1992, p 41 and following; see also Gillespie, ‘Common Property, Private Property and Equity: Clash of Values and the Quest to Preserve Biodiversity’ (1995) 12 EPLJ 388.

7.

Bradsen, ‘Perspectives on Land Conservation’ (1991) 8 EPLJ 16 at 17.

8.

Productivity Commission, Impacts of Native Vegetation and Biodiversity Regulations, Report No 29, Australian Government, 2004. See also Australian Government Response to the Senate Committee on Finance and Public Administration — Native Vegetation Laws, Greenhouse Gas Abatement and Climate Change Measures (2012). Available at .

9.

See, for example, Bone v Mothershaw [2003] 2 Qd R 600; Burns v Queensland and Croton [2006] QCA 235.

10. See, for example, Queensland Vegetation Management Framework Financial Assistance for Farm Businesses Exit Assistance Guidelines, 2004. 11. The Commonwealth legislation giving effect to this agreement are the Natural Resources Management (Financial Assistance) Act 1992 (Cth) and the Natural Heritage Trust of Australia Act 1997 (Cth). 12. Spencer v Commonwealth [2009] FCAFC 38. Following certain other decisions of the High Court on compensation related issues, the High Court remitted Spencer on appeal back to the Federal Court: see Spencer v Commonwealth (2010) 241 CLR 118. This appeal was subsequently dismissed; Spencer v Commonwealth of Australia [2015] FCA 754. For further discussion on this case, see 2.22

and 5.35. 13. See Gunningham et al, ‘Reimbursing the Future: An Evaluation of Motivational, Voluntary, Pricebased, Property Right and Regulatory Incentives for the Conservation of Biodiversity’, Biodiversity Series Paper No 9, Department of the Environment, Sport and Territories, Canberra, 1996; Gunningham and Grabosky, Smart Regulation: Designing Environmental Policy, Oxford University Press, Oxford, 1998, Ch 5; see also Curran, ‘The Conservation of Biological Diversity on Private Property in NSW’ (2000) 17 EPLJ 34. 14. See . 15. See Industry Commission, ‘A Full Repairing Lease: Inquiry into Ecologically Sustainable Land Management’, Report No 60, ACPS, Canberra, 1998; Gardner, ‘The Duty of Care for Sustainable Land Management’ (1998) 5 AJNRLP 29; Bates, A Duty of Care for the Protection of Biodiversity on Land, Report to the Productivity Commission, AusInfo, Canberra, 2001. 16. Land Act 1994 (Qld) s 199. 17. For a useful summary, see Agius, ‘Biodiversity Credits: Creating the Missing Markets for Biodiversity’ (2001) 18 EPLJ 481. 18. For a more detailed discussion of offsets, see 13.39 and following. 19. See . 20. See Chapter 9. 21. Taylor and Ives, ‘Legislative and Policy Challenges for the Protection of Biodiversity and Bushland Habitats: An Evidence-based Approach’ (2009) 26 EPLJ 35 at 37. And see, for example, Tiger Plains Pastoral Co Pty Ltd v Mid Murray Council [2009] SAERDC 5 (agricultural use consistent with retention of native vegetation but not proposed subdivision); Davis and Bird v City of Mitcham [2010] SAERDC 48 (refusal of consent to subdivision because of potential impacts on remnant vegetation). 22. One of the pillars of ecologically sustainable development (ESD): see Chapter 8. 23. See, for example, Australia State of the Environment, 2006, Ch 5 available at ; State of the Environment 2009 (NSW), Ch 7, available at . 24. See 14.12 and following. 25. See Kelly and Stoianoff, ‘Biodiversity Conservation, Local Government Finance and Differential Rates: The Good, the Bad and the Potentially Attractive’ (2009) 26 EPLJ 5. 26. Development Control Regulations 1982 (SA) Sch 3. This only served to accelerate the rate of destruction as landowners began clearing in order to avoid forthcoming restrictions: see Fowler, ‘Vegetation Clearance Controls in South Australia: A Change of Course’ (1986) 3 EPLJ 48 at 50. 27. ‘Vegetation Conservation: The Planning System as a Vehicle for the Regulation of Broadacre Agricultural Land Clearing’ (1991) 18 MULR 26 at 40. 28. By February 1991, about 240,000 hectares had been protected by heritage agreements with a total compensation bill of $41 million: see Bonyhady, note 6 above, p 66. 29. Section 23. 30. Section 24. Section 25 requires the council to prepare guidelines for assistance. 31. Sections 23A and 23B. Substantial compliance with the provisions of a management plan will be required: see Kingscote District Council v Kangaroo Island Eco Action Inc (1996) 92 LGERA 117.

32. Section 57. 33. The Act applies throughout the state but some areas are exempted; for example, metropolitan Adelaide: s 4. 34. Section 6. 35. Section 3. 36. Section 27; Native Vegetation Regulations 2003 (SA) reg 5. There are restrictions on the use of these exemptions: see reg 6. 37. Overland Corner Station Pty Ltd v Gould [2010] SASC 61 (defence of maintaining existing fences rejected). 38. See also Electricity (Principles of Vegetation Clearance) Regulations 1996 (SA); and City of Norwood, Payneham and St Peters v ETSA Utilities [2008] SASC 114. 39. Regulation 5A. 40. Section 28(3). 41. Section 29. 42. Section 29(1)(b). 43. Section 29(4). 44. Section 30. 45. Sections 23E and 23F. 46. Section 23H. 47. Section 23I. 48. Section 24. Guidelines about financial assistance and management must be prepared: s 25. 49. A prosecution alleging numerous acts of unlawful clearing that make up one continuous offence will not be duplicitous unless the clearing was not the result of one activity conducted over a period of time: see Brinkworth v Dendy [2007] SASC 120. 50. Sections 26 and 27. The council cannot give consent to clear vegetation that comprises or forms part of a stratum of native vegetation that is substantially intact unless in the opinion of the council the ‘harvesting’ will not result in any lasting damage to the plants comprising the vegetation, lead to significant soil damage or erosion, or result in any long-term loss of biodiversity: s 27(2)–(4). Membership of the council is listed in s 8 and its functions outlined in s 14. Fees from applications to clear and penalties imposed are directed into a Native Vegetation Fund for research and native vegetation re-establishment programs: s 21. 51. This means that the amount per hectare by which the cleared land has increased in value as a result of the commission of the offence (excluding any consideration that re-establishment of native vegetation may be ordered in civil proceedings), or $2500, whichever is the greater: s 26(3), (4). In Piva v Brinkworth (1992) 59 SASR 92, a case determined under the repealed legislation, the court held that in respect of the imposition of monetary penalties, the deterrent aspect was paramount even though mitigating factors could be taken into consideration, and the overall penalty must be appropriate to the offence even if it was arrived at by calculating individual units. In this case, monetary penalties were imposed at the rate of $150 per hectare for 189 hectares (a total of $28,350) and $600 per hectare for the remaining 21 hectares (a total of $12,670). 52. See also Dal Piva v Jakobovic [2002] SASC 209 (fine of $600 increased to $1200); Dridan v Kent [2004] SASC 100 (fine of $4500 increased on appeal to $9000). 53. The clearing also had a significant effect on the habitat of the red-tailed black cockatoo, a listed threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) (see 13.12 and following). In a prosecution for this offence, Mansfield J in the

Federal Court imposed a civil pecuniary penalty of $220,000 on the corporation; Minister for the Environment, Heritage and the Arts v Lamattina [2009] FCA 753. 54. Section 40. The ‘reasonable care’ requirement, like the common law defence of ‘honest and reasonable mistake’ (see 20.76), will be difficult to make out: see, for example, Austral Tree and Stump Services Pty Ltd v Gould [2008] SASC 230. 55. Where an officer has reasonable grounds on which to believe that a person has breached the Act, or is likely to breach the Act, the officer may direct the person to refrain from the act, and if the breach is a minor breach direct the person to make good the breach in a manner, and within a period, specified by the officer. The officer may also take such urgent action as is required or is, in the opinion of the authorised officer, desirable because of any situation arising from the breach or likely breach: Native Vegetation Act 1991 (SA) s 31E(1). This power cannot be used if it appears the breach occurred more than 12 months before the direction is given: s 31E(9). 56. Sections 31 and 31A. An applicant may be required to give security for costs or an undertaking for damages: s 31F. 57. Nature Conservation Act 2014 (ACT) ss 235–240. It is a defence if the defendant proves that the defendant took all reasonable steps to avoid committing the offence; Nature Conservation Act 2014 (ACT) s 238(4); or if the defendant committed the act under some form of approval or plan; Nature Conservation Act 2014 (ACT) s 252. 58. Nature Conservation Act 2014 (ACT) s 234. 59. Nature Conservation Act 2014 (ACT) s 233. 60. Nature Conservation Act 2014 (ACT) s 169 (definition of ‘reserve’), Pt 9.4. 61. Nature Conservation Act 2014 (ACT) ss 241 and 242. 62. See, for example, Director-General, Department of Land and Water Conservation v Orlando Farms Pty Ltd (1998) 99 LGERA 101; Director-General, Department of Land and Water Conservation v Rial (1998) 99 LGERA 130; Director-General, Department of Land and Water Conservation v Nunkeri Pastoral Pty Ltd (1998) 98 LGERA 139; Director-General, Department of Land and Water Conservation v Pye (1998) LEC 50128-9 of 1997. See also Baird, Lee and Lloyd, ‘State Environmental Planning Policy No 46 — Protection and Management of Native Vegetation’ (1998) 15 EPLJ 127. 63. For further commentary about this structure, see 9.64. 64. Sections 12–14. Applications for development consent will be undertaken under the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) Pt 4, but the minister responsible for administration of the Native Vegetation Act 2003 (NSW) (NVA) will be the consent authority: Native Vegetation Act 2003 (NSW) (NVA) s 13. 65. Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15. See also Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73; Director-General, Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229. 66. See Bartel, ‘Compliance and Complicity: An Assessment of the Success of Land Clearance Legislation in New South Wales’ (2003) 20 EPLJ 116. 67. On principles of sentencing, see Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137 (fine imposed of $160,000 for unlawfully clearing around 200 hectares of land); Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182 at [52] (judicial notice could be taken of longstanding difficulties for government in managing uncontrolled native vegetation clearances in New South Wales); DirectorGeneral, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; DirectorGeneral, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 ($400,000 fine for unlawful clearance of 486 hectares later reduced to $318,750); Director-General,

Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119 ($200,000 fine for unlawful clearance of 23 hectares); Chief Executive Office of Environment and Heritage Department of Premier and Cabinet v Powell [2012] NSWLEC 129 ($120,000 fine including discount for plea of guilty for partially clearing 65 hectares of land). See also Director-General, Department of Environment, Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102; Director-General, Department of Environment, Climate Change and Water v Vin Heffernan Pty Ltd [2010] NSWLEC 200; Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30. 68. Native Vegetation Conservation Act 1997 (NSW) (NVCA) s 6. Tree includes a sapling or a shrub, or scrub: s 4(1). Wetland includes any shallow body of water (such as a marsh, billabong, swamp or sedgeland) that is inundated cyclically, intermittently or permanently with water, and vegetated with wetland plant communities: s 4(1). 69. Native Vegetation Act 2003 (NSW) (NVA) s 6. 70. Native Vegetation Act 2003 (NSW) (NVA) s 20; Native Vegetation Regulation 2013 (NSW) reg 62. 71. Native Vegetation Conservation Act 1997 (NSW) (NVCA) s 5(4). 72. Section 24. 73. Sections 11, 22 and Regulation Pt 6. On-line management tools for helping landowners understand whether they need approvals are available at . 74. Section 9. 75. Section 19. To establish this defence it seems that the applicant must prove that each and every plant comprising the cleared vegetation area must have been regrowth: Forgall Pty Ltd v Chief Executive of the Office of Environment and Heritage [2012] NSWLEC 1219 at [78]. 76. Native Vegetation Regulation 2013 (NSW) Pt 6 Div 3. 77. See . 78. Native Vegetation Regulation 2013 (NSW) reg 20. 79. Director-General, Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229; Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106. 80. Director-General, Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15; Director-General, Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 at [102]. 81. See Port Stephens Council v SS and LM Johnston Pty Ltd (2007) 152 LGERA 193. 82. In Director-General, Department of Land and Water Conservation v Jackson (2003) 125 LGERA 304, it was said that in order for clearing to be ‘part of’ designated development, something more was required than that the clearing be incidental to carrying out the development. See also DirectorGeneral, Department of Land and Water Conservation v Bailey (2003) 128 LGERA 1. 83. Joly Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCA 133. 84. For example, Rural Fires Act 1997 (NSW) ss 3(d) and 9(3). 85. See the Bushfire Environmental Assessment Code. Available at . 86. Rural Fires Act 1997 (NSW) s 100C. 87. See Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013]

NSWLEC 185 (clearing undertaken not in accordance with certificate leading to criminal penalties for unlawful impacts on threatened species). 88. These areas are defined on maps and an on-line tool enables landowners to check whether their land falls within such an area, such clearing may be carried out on property that is located up to 350 metres from bushland. 89. Such as childcare centres and hospitals; see Rural Fires Act 1997 (NSW) s 100P. 90. Rural Fires Act 1997 (NSW) ss 100P and 100R. The Code is available at . 91. Electricity Supply Act 1995 (NSW) Pt.5, Div 2A; ss 48 and 53C. 92. A distributor may only remove or trim trees in accordance with a tree management plan; Electricity Supply (Safety and Network Management) Regulation 2014 regs 36 and 37 93. Native Vegetation Act 2003 (NSW) (NVA) Pt 4. 94. Regulation s 9(1)(h). On offsets, see further 13.39 and following. 95. Sections 12–14. For the effect of ‘biodiversity certification’ of the native vegetation reforms on requirements relating to species impact statements (SIS) to accompany an application for consent, see 13.99. 96. NPWS Pt 8A. For further commentary on this, see 14.83. 97. Sections 8 and 9. 98. Section 29(2); Regulation 18. 99. Native Vegetation Regulation 2013 (NSW) Pt 4. 100. Native Vegetation Regulation 2013 (NSW) regs 18(1)(b) and 19. 101. Approval of a PNF PVP that proposes broad-scale clearing cannot be granted unless the PVP adopts the PNF code of practice, and provides for the clearing to be carried out in accordance with the PNF code of practice; Native Vegetation Regulation 2013 (NSW) Pt 5; reg 22. Although such clearing may in any case be granted by development consent: reg 22(4). Once again, though, development consent for broad-scale clearing is not to be granted by the minister unless the clearing concerned will improve or maintain environmental outcomes: Native Vegetation Act 2003 (NSW) (NVA) s 14(3). For supporting information on the application of the Native Vegetation Act 2003 (NSW) (NVA) to PNF, go to . 102. Section 38; and see Dalimen Pty Ltd v Director-General, Department of Infrastructure, Planning and Natural Resources [2005] NSWLEC 204; Forgall Pty Ltd v Chief Executive of the Office of Environment and Heritage [2012] NSWLEC 1219. 103. See Environment Protection Authority v TransGrid [2003] NSWLEC 18. 104. For an analysis in chronological form of this legislation, see Kehoe, ‘Environmental Law Making in Queensland: The Vegetation Management Act 1999 (Qld)’ (2009) 26 EPLJ 392. See also McGrath, ‘End of Broadscale Clearing in Queensland’ (2007) 24 EPLJ 5. 105. See Bredhauer, ‘Can’t See the Scrub for the Trees’ (2004) 21 EPLJ 44; and subsequent correspondence at (2004) 21 EPLJ 165. 106. Kehoe, note 87 above, at 399. 107. Vegetation Management (Regrowth Clearing Moratorium) Act 2009 (Qld). 108. Section 57. 109. Kehoe, note 87 above, at 404. 110. See Bredhauer, ‘Tree Clearing in Western Queensland — A Cost Benefit Analysis of Carbon Sequestration’ (2000) 17 EPLJ 383.

111. These may be of three types: endangered, of concern, and not of concern, as declared by regulations: ss 8(b) and 22LA–22LC; Vegetation Management Regulation 2012 (Qld) Schs 1–3. Applicable areas are shown on certified maps: s 20A. Other maps identify, for example, remnant and regrowth vegetation areas: ss 20AA–20AJ. A property map of assessable vegetation (PMAV) (ss 20AK and 20B), divides land into four different categories according to criteria specified in ss 20AL–20AO and 20BA. A landowner may apply for the making of a PMAV: ss 20C–20H. For commentary on the difficulties of ‘navigating the statutory maze’ to determine what is assessable development, see Krajniw v Brisbane City Council [2008] QPEC 80 at [41] per Rackemann DCJ; and see also Witheyman v Simpson [2009] QCA 388. 112. Section 3. 113. Vegetation Management Act 1999 (Qld) Pt 2 Div 5B, under which a landowner must give notice to the chief executive of intent to clear: ss 20W and 20X. Plans may be submitted for approval by landowners or organisations involved in land management in the area: s 20M. 114. Section 3(2)(e). This provision has not been updated. 115. Section 3(2). 116. Section 4. 117. Section 7. For example, conditions of consent that reasonably relate to a permitted development may restrict or prohibit clearing: see, for example, Caloundra City Council v Pelican Links Pty Ltd [2004] QPEC 52. Appropriate conditions can also minimise vegetation loss and associated impacts: see, for example, Reef Cove Resort Pty Ltd v Cairns City Council [2007] QPEC 77. A proposed development that is designed to avoid or minimise loss of vegetation is more likely to be acceptable: see Garners Beach Habitat Action Group Inc v Cassowary Coast Regional Council (No 2) [2010] QPEC 140. 118. Vegetation Management Regulation 2012 (Qld) Schs 4 and 5. 119. Section 8. 120. Section 10. 121. Sections 11–15 and 20. Four regional codes have been approved under the Vegetation Management Regulation 2012 (Qld) reg 5. The minister may also approve a code applying to native forest practice (ss 19O–19R), and a special clearing code for a special indigenous purpose: s 19N. Codes are taken to be codes for the purpose of the Integrated Development Assessment System (IDAS): s 20. 122. The ‘Regrowth vegetation code — On freehold and indigenous land and leasehold land for agriculture and grazing — version 2’ is approved under the Vegetation Management Regulation 2012 (Qld) reg 6. 123. Vegetation Management Act 1999 (Qld) ss 19S–19X; although it does not appear that the chief executive has to endorse the clearing or can prevent it specifically under these provisions. It is an offence, however, to clear regulated regrowth otherwise than in accordance with the Code (s 19W) unless the clearing is otherwise authorised by the chief executive: ss 19Y–19ZG. 124. Section 19. 125. Sections 16–18. An owner of land may request that such a declaration be made so long as a management plan is submitted with the request: ss 19E–19G. 126. Section 19H. 127. Sections 21 and 22; Vegetation Management Regulation 2012 (Qld) reg 11. Provisions for ‘deemed approvals’ under the Planning Act do not apply to applications for clearing under the VMA: s 330; and see Traspunt No 4 Pty Ltd v Moreton Bay Regional Council [2012] QPEC 70. 128. Sections 22A and 22DE; Sustainable Planning Act 1999 (Qld) Sch 1 item 3. Certain clearing on

forestry land may be taken to be approved under the Forestry Act 1959; Vegetation Management Act 1999 (Qld) s 70A; Vegetation Management Regulation 2012 (Qld) Sch 6. 129. Defined as (a) to restore the ecological and environmental condition of land; or (b) divert existing natural channels in a way that replicates the existing form of the natural channels; or (c) prepare for the likelihood of a natural disaster; or (d) remove contaminants from land; Vegetation Management Act 1999 (Qld) Dictionary. 130. Clearing carried out to establish, cultivate and harvest crops, other than clearing for grazing activities or plantation forestry; Vegetation Management Act 1999 (Qld) Dictionary. Various criteria must be applied to determine whether the clearing has this status; s 22DAC. 131. Clearing carried out to establish, cultivate and harvest crops, or pasture, other than clearing for plantation forestry, that will be supplied with water by artificial means; Dictionary. Various criteria must be applied to determine whether the clearing has this status; s 22DAC. 132. Sections 22E–22L. 133. Sections 19O and 19P. 134. Section 19Q. 135. Interestingly, the defence of honest and reasonable mistake of fact, which would otherwise be available under the Criminal Code s 24, is taken away by the Vegetation Management Act 1999 (Qld) s 67B; and see Kenway & Smith v Cohen [2010] QDC 236. 136. Section 55. The notice may be appealed to a Magistrates Court: s 62. 137. Victoria Planning Provision (VPP) 52.17 Native Vegetation; and see . Offset requirements are set out at VPP 52.17.6. On offsets, see further 13.39. 138. VPP 52.17-2. Exemptions are set out in 52.17-7, covering, for example, designated areas, and particular circumstances, such as clearance in the course of rural activities (see Houghton v Bond [2010] VSC 193), greenhouse gas sequestration, grazing by domestic stock, utility service provision, and construction and use of buildings; or if the vegetation is otherwise deemed unsafe by a qualified arborist or to the satisfaction of the responsible authority: see, for example, DeLa Harpe v East Gippsland Shire Council (2005) 144 LGERA 132. Offences may be enforced under the Planning and Environment Act 1987 (Vic) s 126: see, for example, DC Consolidated Investments Pty Ltd v Maroondah City Council [2011] VSC 634 (fine of $40,000 for poisoning 33 trees with an assessed value of over $146,000 not manifestly excessive). 139. An application to remove, destroy or lop native vegetation must be classified as one of the following risk-based pathways: low, moderate or high, as defined in the Permitted clearing of native vegetation — Biodiversity assessment guidelines, Department of Environment and Primary Industries, 2013, available at ; VPP 52.17.2, 52.17.3 For each pathway, mandatory biodiversity considerations must be applied before making a decision; VPP 52.17.5 140. VPP 52.17-3. Risk is determined by the ‘extent risk’ (area of vegetation being removed) and ‘location risk’ (from an online location risk map). For access to guidelines, practice notes and other literature, go to ; and see also the sources identified by Webb, ‘Victoria’s Native Vegetation Framework — Achieving “Net Gain” at the Urban Growth Boundary?’ (2009) 26 EPLJ 236 at 240. 141. See VPP 52.16 available at . This VPP has the same overall objective of ‘no net loss’. 142. Note, the NVMF (Native Vegetation Management Framework) has been repealed and replaced by the Permitted clearing of native vegetation — Biodiversity assessment guidelines.

Where the vegetation is not of such high conservation value, then the resolution of the issue may 143. come down to a ‘policy balance’ between retention of native vegetation and competing interests, though offsets must be provided according to the principle of ‘net gain’: see, for example, Ikonomidis Reid Pty Ltd v Whittlesea City Council [2010] VCAT 1344; Mt Mercer Wind Farm Pty Ltd v Moorabool Shire Council [2011] VCAT 836; Beaumaris Conservation Society Inc v Bayside City Council [2012] VCAT 1594; Keam v Bass Coast SC [2013] VCAT 1647. Note, however, these cases were determined before amendments to VPP 52.17 replaced the concept of ‘net gain’ with ‘no net loss’. 144. VPP 42.01. 145. VPP 42.02. 146. Sections 30 and 33–36. 147. Section 24. 148. Sections 37 and 38. 149. Sections 10 and 12. 150. Sections 10–13; Schs 3–5. 151. For an analysis of the Western Australian approach, see Gardner, ‘A Consensus System of Planning and Management for Land Conservation: A Grassroots Solution to a National Problem’ (1989) 6 EPLJ 249. 152. Section 32. 153. Sections 30A–30F. 154. Sections 51A–51T. The relationship between this Act and the Soil and Land Conservation Act 1945 (WA) is set out in s 51D. 155. See Water Corporation v Chief Executive Officer of The Department of Environment [2006] WASC 256. 156. Defined in s 51A. 157. Section 51C. 158. These are set out in Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) reg 5. They encompass limited clearing of up to five hectares, for example, to construct a building, to provide fencing and farm materials, and construct pathways. And see, for example, Harmer and Western Australian Planning Commission [2012] WASAT 142. 159. Section 51C; environmentally sensitive areas are set out in Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) reg 6 and declared under s 51B. 160. Activities that are exempt are set out in Sch 6. These include a wide range of activities authorised under other legislation. 161. Section 51O(2). 162. Section 51O(3). Impacts on remnant vegetation can be managed by suitable conditions of consent that incorporate an environmental management plan: see, for example, Re Big Country Australia Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 10; Undervan Holdings Pty Ltd and Western Australian Planning Commission [2012] WASAT 49. 163. Sections 51O(3) and 51Q. 164. Section 51S. In an application for an interim injunction, the court is not to require an undertaking for damages: s 51S(5), (6). In Chief Executive Officer, Department of Environment and Conservation v Szulc (No 2) [2011] WASC 315, the defendant was sentenced to 15 months’ imprisonment on charges of contravening a clearing injunction, being contempt of court. An appeal to the Court of Appeal was subsequently dismissed: Szulc v Chief Executive Officer, Department of Environment

and Conservation (No 4) [2012] WASCA 143. 165. See Kelly and Farrier, ‘Local Government and Biodiversity Conservation in New South Wales’ (1997) 13 EPLJ 374. See also Nearn, ‘Urban Bushland Protection Through Planning Controls in New South Wales’ (1995) 12 EPLJ 318. 166. Clause 9. 167. Planning Act 1999 (NT) s 75A. 168. For example, Bakrnchev Enterprises Pty Ltd v Maroochy Shire Council [2007] QPEC 117 (special management area); Rowley v Caloundra City Council [2008] QPEC 99 (significant vegetation); May v Redland Shire Council [2009] QPEC 106 (special protection area); City of Mitcham v Ansaar [2006] SASC 78 (objectives of residential foothills zone). 169. In Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 and Penrith City Council v Re-Gen Industries Pty Ltd (2000) 107 LGERA 331, the court emphasised that offences that contravened such controls were not to be regarded as merely trivial or technical. See also Newcastle City Council v Pepperwood Ridge Pty Ltd (2004) 132 LGERA 388 (fine of $80,000 less discount of 15 per cent for illegal tree removal involving gross negligence); Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Ltd [2008] NSWLEC 138; Byron Shire Council v Fletcher [2008] NSWLEC 296; Wingecarribee Shire Council v O’Shanassy (No 6) [2015] NSWLEC 138 (fine of $93,500 plus costs for carrying out earthworks that destroyed trees and native vegetation). 170. See Australian Retirement Homes Ltd v Maroondah City Council [2006] VCAT 476; Mooney v Maroondah City Council (2006) 147 LGERA 409. 171. In Port Stephens Council v SS and LM Johnston Pty Ltd (2007) 152 LGERA 193, where the LEP exempted clearing having ‘minimal environmental impact’ from development consent, the court held that the council bore the burden of proving that the clearing was not exempt. See also Morsink v LaTrobe City Council (2005) 142 LGERA 134 (exemption from clearing controls for ‘farm structure’). Exemptions from permit regimes for clearance under planning provisions may also be made for bushfire hazard reduction. Whether the motive for clearance must be hazard reduction, or whether the motive may be for some other purpose, and clearance without a permit nevertheless lawful so long as the objectives of bushfire hazard reduction are achieved, may become a question of statutory interpretation for a court or tribunal: see Nillumbik Shire Council v Potter [2010] VCAT 669. 172. See, for example, Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2007] SAERDC 50; Moore River Co Pty Ltd and Western Australian Planning Commission [2007] WASAT 98 (impacts on 173. Causing trees to be felled in breach of a licence was held, in Gatacre v Soil Conservation Service (NSW) (1992) 78 LGERA 379, to be an offence of strict liability. See also Rao v Canterbury City Council (2000) 112 LGERA 360; Canterbury City Council v Saad (2001) 112 LGERA 429; Council of Camden v Tax (2004) 137 LGERA 368; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189. On strict liability, see further 20.40 and following. 174. Defined in s 4. 175. Regulated and significant trees may be identified by reference to the Development Regulations 2008 (SA) reg 6A. Significant trees may also be identified by a local Development Plan: s 4. And on application of these provisions, see, for example, Lacey v City of Burnside [2009] SASC 136; Frayne v City of Burnside [2010] SAERDC 28; Cheltenham Park Residents Association Inc v City of Charles Sturt [2011] SAERDC 33; Javanmard v City of Burnside [2012] SAERDC 39. 176. Development Act 1993 (SA) s 54B. Exemptions apply to an urgent necessity to protect persons or buildings: s 54A. And see City of Burnside v Prestige Wholesale Pty Ltd [2005] SASC 195. 177. For example, Tree Protection Act 2005 (ACT). In the Australian Capital Territory, offences of unlawful clearing apply only in reserved areas: Nature Conservation Act 1980 (ACT) ss 73–82.

178. See also Ku-ring-gai Municipal Council v Beaini (2001) 112 LGERA 397; Cameron v Lake Macquarie City Council (2000) 107 LGERA 308; Canada Bay City Council v Bird (2003) 124 LGERA 303. 179. Novara Crescent Pty Ltd v Sutherland Shire Council (2004) 136 LGERA 135. 180. See, for example, Khreich v Holroyd City Council [2015] NSWLEC 1360. 181. See, for example, Canada Bay City Council v Bird (2003) 124 LGERA 303; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; Council of the City of Shoalhaven v Wilson [2015] NSWLEC 93. A defence to cutting down a tree in breach of a tree preservation order may be that the tree was dangerous. The onus is on the defendant to establish that this state was established in relation to the whole tree, not just a part of it; and before cutting down the tree. ‘Dangerous’ means, unless otherwise defined ‘full of danger or risk; causing danger; perilous; hazardous; unsafe’: see Gosford City Council v Forrester [2010] NSWLEC 49. And on principles of sentencing in such cases, see Pittwater Council v Scahill [2009] NSWLEC 12. 182. Vegetation Management Act 1999 (Qld) s 22DG. 183. See 10.47. 184. See 10.50. 185. See 13.9 and following. Offsets may also be required under this category where an approval is needed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA); see for example Buzzacott v Minister for Sustainability, Environment, Water, Populations and Communities [2013] FCAFC 111. 186. For example, Vegetation Management Act 1999 (Qld) s 22DK (offset remains in effect until the offset ends under its terms); Villawood Properties Pty Ltd v Greater Bendigo City Council (2005) 146 LGERA 117 (offsets need to be secure and ongoing); Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254. 187. For example, failure to dedicate an offset site in perpetuity, even though this is a condition of approval; see Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Ltd after Infrastructure [2013] NSWLEC 48 at [80–83], [139]. 188. Robinson, ‘Strategic Planning for Biodiversity in NSW’ (2009) 26 EPLJ 213 at 235. 189. See Connolly and Fallding, note 197 below, at 145. 190. Robinson, ‘Strategic Planning for Biodiversity in NSW’ (2009) 26 EPLJ 213 at 221. 191. Fallding ‘Biodiversity Offsets: Practice and Promise’ (2014) 31 EPLJ 11. It has also been argued that the Commonwealth offsets policy does not adequately cater for differences in terrestrial vis-à-vis marine ecosystems; see Bell et al ‘Legal Frameworks for Unique Ecosystems – How Can the EPBCA Act Offsets Policy Address the Impact of Development on Seagrass?’ (2014) 31 EPLJ 34. 192. See Norris, ‘Seeking Balance: The Promise and Reality of Biodiversity Offsetting’ (2014) 31 EPLJ 137. 193. See Walsh, ‘The Future of Land and Environment Court Oversight of Major Project Offsets’ (2014) 31 EPLJ 397. 194. Available at . The ‘Native Vegetation Gain Scoring Manual’ (2013) sets out the rules regarding site eligibility, offset security and how gain from an offset is calculated; see . 195. In Lorne Country Club Inc v Surf Coast Shire Council [2004] VCAT 260 at [20], for example, the tribunal described the net gain approach as ‘a line in the sand so far as native vegetation in Victoria is concerned. It is intended that from now on native vegetation is to be controlled and managed in

such a way that individual losses are always compensated for by an overall, net gain’. See also Villawood Properties Pty Ltd v Greater Bendigo City Council (2005) 146 LGERA 117; Reeve v Hume City Council [2009] VCAT 65. 196. For further information, go to . 197. See Webb, ‘Victoria’s Native Vegetation Framework — Achieving “Net Gain” at the Urban Growth Boundary?’ (2009) 26 EPLJ 236. See also Connolly and Fallding, ‘Biocertification of Local Environmental Plans — Promise and Reality’ (2009) 26 EPLJ 128, 143; Robinson, ‘Strategic Planning for Biodiversity in NSW’ (2009) 26 EPLJ 213. 198. Available at . 199. Environmental Offsets Act 2014 (Qld) s 7(2). A prescribed activity is one for which an offset may be offered under another Act or regulation; Environmental Offsets Act 2014 (Qld) s 9. ‘Significant residual impact’ is defined as generally a significant adverse impact, whether direct or indirect, of a prescribed activity on all or part of a prescribed environmental matter that is likely to remain, (whether temporarily or permanently) despite on-site mitigation measures for the prescribed activity; Environmental Offsets Act 2014 (Qld) s 8. Prescribed environmental matters may be of national, state or local significance; Environmental Offsets Act 2014 (Qld) s 10. 200. See, for example, Environmental Offsets Act 2014 (Qld) s 18(4) (offset delivery plan must describe how an environmental offset will be undertaken and the conservation outcome will be achieved); Environmental Offsets Act 2014 (Qld) s 25 (impacts on legally secured offsets area); Environmental Offsets Act 2014 (Qld) s 84 (object of offset account). See also Offsets Policy 1.3(3); 2.2.1. 201. Environmental Offsets Act 2014 (Qld) s 11. 202. Environmental Offsets Act 2014 (Qld) s 14(1). 203. Environmental Offsets Act 2014 (Qld) s 18. 204. Environmental Offsets Act 2014 (Qld) s 23; Offsets Policy 2.3.2. 205. Environmental Offsets Act 2014 (Qld) ss 26 and 30. 206. For example, Vegetation Management Act 1999 (Qld) s 19F; Nature Conservation Act 1992 (Qld) ss 29(1) and 46. 207. See Caversham Property Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 173. 208. Available at . See also WA Environmental Offsets Guidelines (2014). Available at . 209. Native Vegetation Act 1991 (SA) s 29(4a). 210. Sections 21(6) and 29(11)(d). 211. Native Vegetation Act 1991 (SA) s 25A. 212. See ‘Guidelines for Natural Values Assessments: Reporting on the Impact of Proposed Developments on Natural Values and Providing Recommendations for Mitigating those Impacts’ (2009). Available at . 213. In H and A van Beelan v Kingborough Council [2010] TASRMPAT 245, an offset by way of a monetary contribution levied according to a council biodiversity offset policy was held not to be authorised by the Land Use Planning and Approvals Act 1993 (Tas) and was therefore unlawful. A condition of development consent reasonably imposed for a planning purpose could however have the same result: see Ray Taylor Investments Pty Ltd v Kingborough Council [2012] TASRMPAT 014 (offset payment into council’s tree preservation fund). 214. See ‘Guidelines for the use of Biodiversity Offsets in the Local Planning Approval Process’ (2013) available at . 215. Planning and Development Act 2005 (ACT) Pt 6A. ‘Significant adverse environmental impact’ is defined in s 124A. ‘Protected matters’ are matters protected under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) or as declared; Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 111A. 216. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 111S. The policy is available at . 217. Farrier, Kelly and Langdon, ‘Biodiversity Offsets and Native Vegetation Clearance in New South Wales: The Rural/Urban Divide in the Pursuit of Ecologically Sustainable Development’ (2007) 24 EPLJ 427 at 428. 218. Principles for offsets are set out at .htm. See also ‘NSW Biodiversity Offsets Policy for Major Projects’ (2014). Available at . 219. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 93F. 220. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 94. 221. Note, however, that ‘while the Court has power pursuant to s 39(2) of the Land and Environment Court Act 1979 and s 93I(3) of the EPA Act requiring a planning agreement to be entered into by the applicant as a condition of a development consent, it does not mean that the Court has the power to require a planning authority i.e. the council to enter into such a planning agreement’: Black v Ku-ring-gai Council [2008] NSWLEC 1501 at [43]. 222. Meriton Apartments Pty Ltd v Council of the City of Sydney [2011] NSWCA 17. 223. Adapted from an article by Gibbons and Lindenmayer, ‘Offsets for Land Clearing: No Net Loss or the Tail Wagging the Dog?’ (2007) 8(1) Ecological Management and Restoration 26. 224. Solomon, ‘Security for Biodiversity Offsets in New South Wales’ (2011) 28 EPLJ 92 at 100 argues that it is unlikely that a proponent would agree to such strict conditions were it not for the oversight of the Chief Justice. 225. By contrast, in BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2007] NSWLEC 229, an offset proposal was deemed inadequate to protect the Snail. A revised proposal came before the court in BTG Planning v Blacktown City Council [2008] NSWLEC 1500, where the court observed: ‘The application of the Precautionary Principle requires that we do not approve the proposal merely in the hope that the revegetation offset and the translocation of the Snail will succeed. However, if we conclude that approval would be justified (after balancing environmental against other considerations) even in the certain knowledge that the revegetation offset and the translocation of the Snail will not be successful, then such approval is consistent with the Precautionary Principle. This does not mean that revegetation and translocation should not be required as a condition of consent. Although we are not certain of their success, to try and fail is better than to never try at all.’ It could be argued of course that, in the light of such uncertainty, it was always open to the court to reject the proposal, as it had done earlier. 226. See 13.58. 227. Department of Environment, Climate Change and Water, as it then was. 228. See Gales Holdings Pty Ltd v Tweed Shire Council [2008] NSWLEC 209. 229. See also Ironstone Community Action Group Inc v New South Wales Minister for Planning and Duralie Coal Pty Ltd [2011] NSWLEC 195 at [17]. 230. See, for example, Mackenzie Architects International Pty Limited v Ku-ring-gai Council [2015] NSWLEC 1353.

231. Robinson, ‘Strategic Planning for Biodiversity in NSW’ (2009) 26 EPLJ 213 at 221. 232. Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213 at [132]. 233. See, for example, Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48; Ironstone Community Action Group Inc v New South Wales Minister for Planning and Duralie Coal Pty Ltd [2011] NSWLEC 195. 234. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 93F(3)(g). 235. PVPs may also be entered into in Victoria under the Conservation, Forests and Lands Act 1987 (Vic) s 69. 236. Urban areas identified in Sch 1 Pt 3 are excluded from the operation of the Act: s 5(1)(c). 237. Described by the Native Vegetation Regulation 2013 (NSW) reg 3 as ‘any natural resource management action or work required by a PVP for the purpose of ensuring that broadscale clearing proposed by the PVP improves or maintains environmental outcomes’. 238. Section 29. Broad-scale clearing means the clearing of any remnant native vegetation or protected regrowth: ss 8–10. 239. See . 240. NSW Government Gazette, 2 March 2007. 241. For a more detailed assessment about how the methodology is applied, see Farrier et al, note 217 above, at 430 and following. 242. See . 243. Section 127A. 244. A biobanking agreement is a regulatory instrument, as defined in the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 28, which allows an environmental planning instrument to suspend the operation of a regulatory instrument for the purpose of enabling development to be carried out. A suspension, however, needs the concurrence of the minister administering that regulatory instrument; and under the biobanking scheme the minister may not give concurrence unless the proposal would not negatively impact on the biodiversity values protected by the agreement, whether by use of offsets or otherwise: see s 127P. An agreement may, however, be varied or terminated if biodiversity values are threatened to be adversely affected by a mining activity or petroleum title: ss 127S and 127U. To date, 14 agreements have been negotiated: see . 245. Threatened Species Conservation (Biobanking) Regulation 2008 (NSW) reg 11. 246. Section 127J. 247. Section 127G. 248. Section 127N. 249. Section 127L. 250. Sections 127V–127Y. 251. Sections 127Z–127ZC. Payments are made initially into the Biobanking Trust Fund. 252. Threatened Species Conservation (Biobanking) Regulation 2008 (NSW) regs 3–10. 253. Prospective purchasers of biodiversity credits (which may include not just developers but conservation associations for example) may publicise their requirements on the public register kept for this purpose: Threatened Species Conservation Act 1995 (NSW) s 127ZZ. To view the register go to . 254. Section 127ZK.

255. Section 127ZL(3). 256. Available at . 257. Section 127ZL(4). For a considered critique on ‘cost-effective measures’ see Robinson, ‘Strategic Planning for Biodiversity in NSW’ (2009) 26 EPLJ 213 at 221 and following. As Robinson points out (at 223), cost-effectiveness is a dubious criterion when considering the public interest elements of retaining biodiversity onsite: ‘it is inconsistent with principles of ecologically sustainable development (ESD), it permits lowest common denominator standards for on-site conservation, and … it does not take into account the potential for error’. 258. Section 127ZM. 259. See Connolly and Fallding, ‘Biocertification of Local Environmental Plans — Promise and Reality’ (2009) 26 EPLJ 128 at 143. 260. Connolly and Fallding, note 197 above. 261. Section 127ZO; and see 13.97. 262. Section 127ZN. 263. Section 127ZZG. 264. At the end of July 2014, 10 biobanking statements had been issued and 29 biobanking agreements approved. Almost 5000 hectares of native vegetation has been set aside under biobanking agreements to be managed in perpetuity for conservation purposes. 265. Biobanking scheme: ‘Statutory Review Report’ (2014). Available at . 266. See, for example, Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84. And on adaptive management see 8.52. 267. See, for example, Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753 (pecuniary penalty of $220,000 for unlawfully clearing native vegetation that could significantly impact on an endangered cockatoo). And on ‘matters of national environmental significance’, see 5.68 and following. 268. Available at . 269. The concept of ‘direct’ and ‘indirect’ offsets appears to be similar to that enunciated in the Western Australian offsets policy: see 13.46. 270. See Holmes, ‘Pastoral Lease Tenures as Policy Instruments’, in Dovers (ed), Environmental History and Policy: Still Settling Australia, Oxford University Press, Melbourne, 2000, Ch 10, p 212. 271. See generally Farrier, note 5 above, at 100. In Re Ross (1913) 23 LCC 52, ringbarking trees was held to be an ‘improvement’. The Crown Lands Act 1989 (NSW) s 140 now empowers the minister to remove conditions requiring improvements or any others likely to have a detrimental effect on the environment. 272. Schedule 6; and Crown Lands (Continued Tenures) Regulations (NSW) Sch 2 cl 14. 273. Sections 18D and 18DB; and Western Lands Regulation 1992 (NSW). See further Farrier, note 5 above, at 109. 274. Section 4. 275. Section 39. 276. Crown Lands Act 1992 (NT) ss 37(1)(h) and 102. By-laws may also prevent damage to trees in recreation reserves: s 79(9)(g); Pastoral Land Act 1992 (NT) s 38(1)(k), (m). 277. Land Act 1994 (Qld) s 199. See also Shepheard and Martin, ‘The Multiple Meanings and Practical

Problems with Making a Duty of Care Work for Stewardship in Agriculture’ (2009) 6 Macquarie Journal of International and Comparative Environmental Law 191. 278. Section 203. 279. Section 214. 280. Sections 198A and 198B. 281. Section 249C(1). 282. Crown Land Management Act 2009 (SA) Sch 1. 283. Sections 35 and 49. 284. Section 5. 285. Section 55. 286. Section 56. 287. Section 57. 288. Section 3. 289. The Crown Land Management Act 2009 (SA) does not generally apply to pastoral leases: s 8. 290. Pastoral Land Management and Conservation Act 1989 (SA) s 4. 291. Section 7. 292. Section 41. 293. Section 57.

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Chapter 14 Native Wildlife and Threatened Species Introduction 14.1 The species approach to protection of native wildlife has been mainly regulatory in nature, prohibiting, without a licence or other authority, the taking of, and dealing with, native species of fauna and flora, and attaching stricter controls to species identified as threatened. Where threatened species are concerned, the species approach is integrated with an ecosystems approach.

Commonwealth responsibilities Trade in wildlife and endangered species 14.2 Two of the main contributors to wildlife vulnerability are habitat destruction and trade,1 legal as well as illegal, in live wildlife and wildlife products. The uniqueness of Australia’s wildlife has encouraged a highly lucrative, and often illegal, export trade in many species of native animals. International concern at similar operations in many other parts of the world led, in 1973, to agreement for a Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). This Convention has since been ratified by Australia. The species that are subject to the protective measures of the Convention are listed in the Appendices.2 Appendix I concerns species threatened with extinction of which there are over 70 listed from Australia. Trade in these species may only be authorised in exceptional circumstances such as, for example, to establish a strictly

controlled nucleus of a breeding colony. Appendix II lists all those species that, although not in any immediate danger of extinction, may become so unless trade in them is strictly regulated. This category also lists other species that need to be subject to regulation, in order that trade in other Appendix II species may be brought under effective control. Appendix III lists all those species that parties to the Convention identify as being subject to regulation within the country’s own jurisdiction, but that need the cooperation of other parties to effectively regulate their exploitation. [page 562] The Commonwealth has authority, under the Constitution s 51(1), to regulate trade between Australia and other countries. As indicated in Chapter 5, this includes the power to control imports and exports of wildlife and wildlife products. One of the problems inherent in strict protection and regulation of trade and other dealings in native wildlife is that a protective status can actually make that wildlife more valuable to would-be traders. 14.3 In 1976, the House of Representatives Standing Committee on Environment and Conservation (HRSC) reported that Australia’s strict controls over the export of fauna and the demand overseas for many unique Australian species had created a strong incentive for smuggling.3 Further, effective control over the movement of fauna interstate was hampered by the provisions of the Constitution s 92,4 which guarantees the free movement of native wildlife within Australia as articles of trade and commerce. The HRSC also pointed out the enormous problems facing customs officials, not just in surveillance at international ports and airports, but in patrolling remote stretches of coastline, particularly in the sparsely populated northern areas of Australia. In these areas, light aircraft and ships are used by highly organised syndicates to remove consignments of fauna to convenient points abroad. The HRSC, therefore, recommended some relaxation in the Commonwealth government’s export policies in relation to non-endangered species and approved institutions. At the same time, it reaffirmed the necessity to achieve uniform and adequate state legislation and to encourage the introduction of Commonwealth and state legislation for the protection of all rare and endangered species. It also pointed out that the federal government should increase the use of its environmental impact assessment (EIA) procedures in relation to projects that threaten the habitats of rare and endangered fauna. These proposals were subsequently taken up by amendments to the Environment Protection (Impact of Proposals) Act 1974 (Cth) (now repealed), consequent on the enactment of the Endangered

Species Protection Act 1992 (Cth) (now repealed), and continued under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA). 14.4 The Australian government has sought to implement the terms and spirit of CITES through the comprehensive provisions of the EPBCA Pt 13A (international movement of wildlife specimens), which replaces the now repealed Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Cth). Under that Act, the courts seemed to be generally aware of the need to deter offenders from importing and exporting protected wildlife without a permit.5 [page 563] 14.5 A report by the Australian Institute of Criminology gives some updated figures on prosecutions up to 2008–2009, and statistics for illegal imports and exports detected by Australian customs between 2004–2008.6 As the report states, information about the extent of illegal trade is ‘sketchy’, but: … an important facilitator of the illegal trade is the Internet, although apparently no regular scrutiny of Internet wildlife sales is undertaken in Australia. As a one-stop shop for popular, distinctive and rare species, the Internet is a more reliable guarantor of sale anonymity. To what extent the Internet contributes to the overall illegal trade is impossible to quantify but the scale of items available is large, both in quantity as well as species representation.

The Department of Environment Annual Report for 2014–157 reports that as at August 2015, 858 seizure and caution notices had been issued by Australian enforcement agencies for suspected breaches of Part 13A of the EPBCA for the import and/or possession of specimens, including specimens listed under CITES. Of these 858 seizure and caution notices, 369 seizures resulted in a total of 9566 specimens being seized. Five prosecutions reported were all in relation to fisheries matters. The provisions of the EPBCA make it an offence to export or import CITES specimens8 or regulated native specimens9 without a permit.10 There are detailed criteria, including restrictions, which must be applied by the minister before a permit is granted.11 Concepts related to permit criteria are set out by the legislation in relation to each purpose for which a permit may be sought;12 and conditions set out for each [page 564] category in the Regulations.13 Under s 303EC of the Act, the minister may amend the list of permitted live imports of wildlife. In Parker v Minister for Sustainability, Environment, Water, Population and

Communities [2011] FCA 1325, upheld on appeal to the Full Court in Parker v Minister for Sustainability, Environment, Water, Population and Communities [2012] FCAFC 94, cat breeders challenged an amendment by the minister to provide for the exclusion of a certain species of cat. The Federal Court held, in dismissing the appeal, that the only specified limits on the exercise of the power to include, or exclude, an item on the list are procedural and not substantive. The procedural constraints are limited to processes designed to place information before the minister for the obvious purpose of promoting an informed decision. 14.6 There are two distinct forms of information gathering envisaged. The first is consultation, which is dealt with by s 303EC(3). The second is the consideration of a report or a review that is dealt with by s 303EC(5) in combination with the provisions of ss 303ED–303EJ. An analysis of those provisions demonstrated, said the court, that the sufficiency, quality or adequacy of the information that the EPBCA envisages the minister may consider prior to including an item on the list, is a matter largely left to the discretion of the minister. The extent of any consultation that may be engaged in is also left to the minister to determine. The requirements for the consideration by the minister of a report or review are more prescriptive but, apart from identifying in broad terms the nature of the assessment required, the provisions say little or nothing of the adequacy, quality or sufficiency of the information to be considered. These are matters left to be controlled by the minister. Exports of specimens for commercial purposes may be undertaken in accordance with an approved wildlife trade operation, or approved or accredited wildlife trade management plan, declared by the minister after prescribed criteria have been considered.14 Some restrictions on trade in wildlife and wildlife products are also contained in the Customs (Prohibited Import) Regulations (Cth) and Customs (Prohibited Export) Regulations (Cth), made pursuant to the Customs Act 1901 (Cth).15 [page 565] The proposed new ‘Australian Animal Welfare Standards and Guidelines for Exhibited Animals’ is intended to create improved and nationally consistent rules for the care and management of animals kept for exhibition purposes at facilities such as zoos, wildlife parks, aquariums and museums with live animal exhibits.16

Interstate trade in wildlife 14.7 Protection of native wildlife within Australia is theoretically restricted by the provisions of the Constitution s 92, which guarantees freedom of trade between the states. Wildlife has been treated as a legitimate article of trade or commerce. A general prohibition on trade, even if coupled with an ability to permit trade, will not save a provision from being declared invalid because of s 92.17 It is, however, arguable that restrictions on interstate trade can legitimately be applied for conservation reasons, so long as such restrictions go ‘no further than is necessary for legitimate regulatory or conservational purposes’.18

Quarantine and biosecurity 14.8 The Quarantine Act 1908 (Cth) enables the Australian Quarantine Inspection Service (AQIS) to seize and destroy animals and plants, and take measures to control the spread of pests and diseases that could cause significant damage to animals, plants and other aspects of the environment.19 Before making a decision that is likely to result in a significant risk of harm to the environment, the Director of Quarantine must request advice from the Environment Minister as to the effectiveness of the risk assessment process in assessing the risk of harm to the environment.20 Criteria for assessment of risk from vertebrate and plant imports have been developed.21 Animals and plants are subject to examination before being released into Australia.22 The Biosecurity Act 2015 (Cth) deals with managing biosecurity risks from pests23 and diseases that may be in goods, vehicles or on premises. The Act confers extensive powers on biosecurity officers to assess the level of biosecurity risk associated with [page 566] goods, and to monitor, respond to and control those risks.24 The Act also provides a mechanism for prohibiting certain goods from being brought or imported into Australian territory, either absolutely or subject to conditions, and includes provisions dealing with biosecurity import risk analyses and import permits.25 The problem, of course, is that there is a strong international bias in favour of free trade, and environmental restrictions are apt to be seen as disguised attempts at protectionism by countries that employ them.26 This has been underlined, for example, by the controversy surrounding the restrictions on

importation of salmon from Canada. This was ostensibly to protect the Tasmanian salmon industry, but the failure by Australia to apply rigorous scientific analysis to the ban led to the decision being overturned on appeal to the World Trade Organization (WTO) Appeal Panel.27

Commonwealth fisheries and marine areas 14.9 Biodiversity concerns in relation to Commonwealth fisheries, apart from the capture of the fish themselves, which is discussed in more detail at 18.41, centre mainly on the problem of bycatch and discarding.28 The problem of the introduction of pests, or invasive species, into marine areas by discharges of ballast water from visiting vessels is addressed under the Biosecurity Act 2015 (Cth), discussed at 15.139.

The Antarctic Treaty (Environment Protection) Act 1980 (Cth) 14.10 Under the Antarctic Treaty (Environment Protection) Act 1980 (Cth) the minister may declare certain species of native mammals, birds or plants, to be specially protected, so long as they are specified in Annex 2 to the Madrid Protocol.29 It is an offence to cause injury to, or interference with, any native mammal, invertebrate, bird or plant, or to introduce non-indigenous wildlife, unless in accordance with the terms of a permit.30 Permits will only be issued for scientific or educational purposes, and only if the balance of the natural ecological systems of the [page 567] area will be maintained.31 Permits to take specially protected species may only be issued for some compelling scientific purpose, so long as this does not jeopardise the survival of that species or the balance of the natural ecological systems of the area.32

Threatened species and communities 14.11 Much of the domestic statutory activity, at both federal and state level, has stemmed from cooperative efforts with overseas countries and international organisations in response to international expressions of

concern at the vulnerability of certain classes or species of wildlife. Zoological gardens recognise their responsibility to try to preserve and procreate threatened species. It is, however, unfortunate that these establishments may turn out to be the last resting place for many species of wildlife if global exploitation of wildlife and their habitats is not arrested. 14.12 Under the EPBCA, threatened species are divided into the following categories:33 extinct; extinct in the wild; critically endangered; endangered; vulnerable; or conservation dependent. These categories are consistent with the International Union for the Conservation of Nature (IUCN) Red List.34 14.13 An ecological community is an assemblage of native species35 that inhabits a particular area in nature and meets any criteria stipulated by regulation.36 Threatened ecological communities may be either:37 critically endangered; endangered; or vulnerable. 14.14 Further criteria for listing both threatened species and ecological communities are set out in the Regulations.38 While a species or ecological community remains listed, the minister must keep ‘approved conservation advice’ that sets out the grounds [page 568] on which, and main factors that cause, the species or community to be eligible to be included in the category in which it is listed; and either information about what could appropriately be done to stop the decline, or support the recovery, of the species or community; or a statement to the effect that there is nothing that could appropriately be done to stop such decline, or support the recovery, of the species or community.39

Statutory lists

14.15 Lists of both threatened species and threatened ecological communities, as first established, contained only those species and communities included in the Endangered Species Protection Act 1992 (Cth) (ESPA) Schs 1 and 2 (now repealed) immediately before the commencement of the EPBCA.40 Following that, the lists may be varied41 and amended,42 after considering advice from the Scientific Committee.43 However, the minister is instructed not to consider any matter not related to the eligibility of the species or community for listing or the survival of the species or community.44 This would exclude, for example, economic considerations from any decision to amend a list, but of course those considerations may be taken into account later in making or adopting a recovery plan or threat abatement plan.45 14.16 The minister must also establish a list of key threatening processes, based on the list in the ESPA Sch 3.46 A threatening process is one that threatens the survival, abundance or evolutionary development of a native species or ecological community.47 A threatening process is eligible to be treated as a key threatening process if: (a) it could cause a native species or an ecological community to become eligible for listing in any category, other than conservation dependent; or (b) it could cause a listed threatened species or a listed threatened ecological community to become eligible to be listed in another category representing a higher degree of endangerment; or (c) it adversely affects two or more listed threatened species (other than conservation dependent species) or two or more listed threatened ecological communities.48 Key threatening processes that have been listed include invasive species such as the European red fox, cane toad, feral rabbits and pigs and unmanaged goats; unintended bycatch from commercial fishing operations; and land clearance.49 [page 569]

Nominations for lists 14.17 Any person may nominate50 species, ecological communities or threatening processes for inclusion on these publicly available51 lists.52 Prior to nominations being invited,53 the minister may determine one or more conservation themes that the minister considers should be given priority in relation to the assessment period54 (12-month cycle).55 Nominations will be given to the Scientific Committee for assessment, and the committee will then give to the minister a list of items it thinks should be assessed.56 The minister will then finalise the list and public comments will be invited.57 The Scientific

Committee assesses the items in the finalised list and gives the assessment to the minister,58 following which the minister makes a decision on listing.59

Offences 14.18 A person may not take any action that has, will have or is likely to have, a significant impact on a listed threatened species or endangered community without approval.60 Civil penalties range from 5000 penalty units (currently $550,000) in the case of individuals to 50,000 penalty units (currently $5,500,000) in the case of corporations.61 Aggravated offences apply to dugong and some species of turtles.62 Aggravated offences may attract penalties of up to 3000 penalty units and two years imprisonment, or both. 63 Although clearing of native vegetation is not, per se, a matter of national environmental significance under the EPBCA so as to trigger Commonwealth responsibilities directly, clearance may have a significant impact on a listed threatened ecological community or species and so come within the power of the Commonwealth to control.64 In Minister for the Environment, Heritage and the Arts v Lamattina [2009] FCA 753, for example, the respondent was ordered to pay a pecuniary penalty of $220,000 for [page 570] unlawfully clearing native vegetation, an action that was likely to have a significant impact on an endangered cockatoo. And in Minister for Sustainability, Environment, Water, Population and Communities v De Bono [2012] FCA 643, the respondent was ordered to pay a pecuniary penalty of $150,000 for clearing, ploughing and rock removal that had a significant impact on a threatened ecological community. The respondent was also required to enter into a five-year management plan. 14.19 Such actions taken against listed threatened species or threatened ecological communities may also attract criminal penalties, punishable by a fine of up to 420 penalty units and imprisonment for up to seven years for individuals, and 2100 penalty units for corporations.65 Actions taken in contravention of these latter provisions may also result in the landholder of the land on which the action was taken being guilty of the same offence and liable to the same penalties.66 It will also be an offence of strict liability to kill, injure, take and so on, any listed threatened species (except conservation dependent species) or threatened ecological community in a Commonwealth area.67 Penalties vary from a maximum fine of 500 penalty units to a

maximum fine of 1000 penalty units and a term of imprisonment of up to two years.

Approvals 14.20 Prohibited actions may be authorised by an approval68 or an exemption,69 or otherwise as provided under the Act;70 for example, if the action may make some contribution to the conservation of a species.71 Whether what would otherwise amount to a ‘controlled action’ requiring approval can be reinterpreted as not being a controlled action if offsets are offered72 is a debatable point. The interpretation of state planning legislation usually confirms that a proposal must be assessed as it is, and not on the basis of conditions that would be imposed; for example, requiring offsets.73 However, the EPBCA indicates that requirements about approvals for threatened and migratory species do not apply if the minister believes an action would be taken in [page 571] a manner specified and the action is taken in that manner.74 On the other hand, in determining whether an action is a controlled action, the minister must not consider any beneficial impacts the action might have.75 Despite this provision, there are clear examples of offsets being used to support a ‘particular manner’ decision.76 ‘The lack of a formal structure for bio-offset arrangements undoubtedly renders it more difficult to achieve some of the ecological, economic and administrative efficiencies for which [bio-offset banking schemes] are designed.’77 Prohibited actions may also be authorised for other compelling reasons, such as humane action or to prevent a risk to human health.78 The permit process is open to public consultation.79

Critical habitat 14.21 Habitat that is critical to the survival of a listed threatened species or ecological community may be listed as ‘critical habitat’.80 In identifying such habitat, the sort of information that may be used by the minister is set out in the Regulations.81 It will be a strict liability offence, punishable by a maximum fine of 1000 penalty units and imprisonment for up to two years, to take any action on Commonwealth land knowing that it will significantly damage critical habitat.82 When a Commonwealth agency executes a contract for the sale or lease of land, covenants must be included to protect critical habitat,

and ‘reasonable steps’ taken to make sure that the covenant binds successors in title to the buyer or lessee.83

Recovery plans 14.22 A recovery plan provides for the research and management actions necessary to stop the decline, and support the recovery, of listed threatened species and ecological communities so that chances of long-term survival in nature are maximised.84 The Act requires that the minister must decide whether to have a recovery plan for each listed threatened species (except one that is conservation dependent)85 or ecological [page 572] community within 90 days of the species being listed.86 If a recovery plan is deemed necessary, then it must come into force within three years, unless extended.87 Before making a plan, the minister must consult the states or territories in which the species or community occurs, consider advice from the Scientific Committee and publicly advertise the proposed plan and consider comments from persons who respond.88 The content of the plan is prescribed by the Act and in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth).89 The minister may also adopt an existing state plan, whether in force or not, so long as there has been adequate consultation, the Scientific Committee has been consulted and the content corresponds to that required under the EPBCA.90 The Act requires the minister not to act ‘inconsistently’ with a recovery plan.91 The Federal Court has held that this does not prohibit the minister from acting inconsistently with a draft recovery plan.92 14.23 A plan must be reviewed at least every five years, and may be varied on the same terms as is required for making a new plan.93 A variation of a joint state–territory–federal plan by a state or territory has no effect for the purposes of the EPBCA, unless approved by the minister after consultation.94 The Commonwealth must implement recovery plans in Commonwealth areas and seek the cooperation of states and territories for implementation outside Commonwealth areas.95 A Commonwealth agency is instructed not to take any action that contravenes a recovery plan.96

Threat abatement plans 14.24 A threat abatement plan provides for the research, management and other actions necessary to reduce the key threatening processes97 to acceptable levels in order to maximise the chances of long-term survival in nature of

native species and ecological communities threatened by those processes.98 The requirements to consider having a threat abatement plan, and the prescribed general content of a plan, are similar [page 573] to those required of a recovery plan, including the necessity to state criteria against which the achievement of the objectives is to be measured.99 The necessity to include other information is prescribed in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth).100 Unlike a recovery plan, however, the minister may only decide to have a plan if this is considered to be a feasible, effective and efficient way to abate the threatening process.101 A decision whether or not to have such a plan must be made within 90 days of the listing of a threatening process or within five years of a previous decision not to have such a plan.102 Reasons for a decision must be published.103 Where the minister decides to have a threat abatement plan, then the plan must be made and be in force within three years of that decision.104 14.25 The same provisions about consultation on and publication of proposals and plans, adoption, review and variation of plans, and implementation of plans, apply to threat abatement plans as apply to recovery plans.105 In addition, a plan may be revoked, together with reasons for this decision.106 Interestingly, there is nothing in the provisions concerning key threatening processes or threat abatement plans that oblige the minister to take into account listings of key threatening processes when deciding whether an action is a controlled action.107

Conservation orders 14.26 The minister may make a conservation order prohibiting, restricting or requiring specified activities in Commonwealth areas,108 if the minister reasonably believes that such an order is necessary to protect listed threatened species or listed threatened ecological communities.109 The minister must also be satisfied that an order is justified, having regard to social and economic considerations that are consistent with the principles of ecologically sustainable development (ESD).110 Before making an order, the minister must consult with the secretary, affected Commonwealth agencies, and any other Commonwealth agency the minister thinks appropriate, unless, in the [page 574] case of the agencies, delay in making the order would result in significant,

irreparable damage to such species or communities.111 An order must be reviewed at least every five years. Before revoking or varying an order, the minister must be satisfied that the order is no longer needed or that the order as varied will adequately protect those species the order was intended to protect.112 Decisions concerning the making and review of conservation orders must be publicised, and persons who may be affected informed of their right to apply, within 28 days, for reconsideration of the decision by the minister.113 14.27 It is an offence to ‘take an action reckless as to whether the action contravenes a conservation order’.114 A person contemplating an action that may contravene an order is able to seek the minister’s advice. If that person acts in accordance with advice provided by the minister, after consultation with the secretary, that the order would not be contravened, then there will be no contravention.115 Such advice, if given by a delegate rather than the minister personally, may be reviewed by the Administrative Appeals Tribunal.116 These are unusual provisions, first, because they place the minister effectively in the situation of providing legal advice about the likelihood that a criminal offence may be committed by taking a particular action; and, second, that such a decision, if made by a delegate, may be appealed to a tribunal that generally acts as a surrogate decision-maker on the merits of administrative decisions, not as an appellate body on questions of law.

Migratory species 14.28 Under the terms of the EPBCA, a list of migratory species must be established that comprises species currently listed under various international agreements.117 These are the Convention on the Conservation of Migratory Species of Wild Animals 1979 (the Bonn Convention), 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 1986 (the CAMBA Agreement), 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 (the JAMBA Agreement), and the Republic of Korea–Australia Migratory Birds Agreement (ROKAMBA). Similar offence118 and approval119 provisions apply to listed migratory species as apply to listed threatened species.

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Cetaceans 14.29 The EPBCA establishes an Australian Whale Sanctuary120 that encompasses the Commonwealth waters of the exclusive economic zone, prescribed coastal waters121 of a state or the Northern Territory, and marine or tidal areas inside the baseline of an external territory.122 The minister may make a declaration effectively recognising that state or territory law adequately protects cetaceans in coastal waters.123 Similar offences and approvals processes as are applied to threatened species and ecological communities apply also to the taking and so on of cetaceans, both within and outside the boundaries of the Australian Whale Sanctuary.124 Foreign whaling vessels also require a permit to enter an Australian port.125 The minister may accredit plans of management that take all reasonable steps to ensure that cetaceans are not injured as a result of fishing and are not likely to adversely affect the conservation status of a species of cetacean.126 Except for listed threatened species of cetacean, such a plan will effectively exempt actions taken under it from the offence provisions of the legislation.127 Regulations governing the interaction of humans with cetaceans (for example, whale watching) are prescribed in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Pt 8.

Listed marine species 14.30 After initial listing of marine species, the list128 may be modified so as to include species whose long-term conservation needs to be ensured, and which occur in a Commonwealth marine area.129 Similar penalty and approvals provisions apply to the taking, killing, injuring or trading of listed marine species as apply to the taking of cetaceans.130 Offences against dugong and certain turtles are to be treated [page 576] as ‘aggravated offences’ and subjected to heavier penalties; fines of up to 3000 penalty units and imprisonment for up to two years.131

Wildlife conservation plans

14.31 Wildlife conservation plans may be made for the protection, conservation and management of listed migratory species, listed marine species, cetaceans and conservation dependent species.132 Similar requirements about consultation, cooperation, content and variation apply to the making of these plans as apply to the making and adoption of recovery plans.133 A wildlife conservation plan will cease to have effect if a recovery plan comes into force for the relevant species.134 Commonwealth agencies are instructed to take all reasonable steps to act in accordance with such a plan.135

Eradication and control of non-native species 14.32 Where a recovery plan, threat abatement plan or wildlife conservation plan includes the proposed eradication of a non-native species that is threatened in a country in which its native habitat occurs, the Commonwealth must offer to provide stock of the species to that country before eradication proceeds.136 Regulations may prescribe species that might threaten biodiversity in Australia and regulate the introduction and treatment of such species.137

State and territory legislation Introduction 14.33 Every state and territory has legislation that prohibits or controls, under licence, the taking of most species of native Australian fauna and flora on all Crown and privately owned lands throughout Australia. The general scheme of the legislation is to protect virtually all forms of native wildlife — that is, wildlife that is indigenous to Australia, was introduced by Aboriginal people before 1788, or is a periodic or occasional migrant to Australia — by regulating the circumstances in which they may be taken, killed, possessed, sold and otherwise dealt with. Some native species may be wholly protected. Others, such as game species, may be protected subject to culling requirements, or only during certain close [page 577] seasons. In any event, all aspects of wildlife hunting and dealing are controlled by the appropriate wildlife services through a licensing system.

The legislation also regulates the methods by which wildlife may be taken, and prohibits the use of certain substances and equipment. Enforcement is the responsibility of the wildlife services and their rangers, who enjoy wide powers of search, investigation, arrest and seizure. In general, wildlife, especially unprotected species, enjoy a greater measure of protection inside a protected area such as a national park, where the taking of even common species is usually totally prohibited, except in game reserves where game species may be taken during ‘open’ seasons. Reference to animals or fauna in general includes references to carcasses, skins or eggs of animals. 14.34 State legislation always extends protective measures to mammals and birds, but is not uniform in including other classes of creatures such as reptiles, fish, or invertebrate animals. Definitions in legislation, therefore, have to be closely scrutinised to determine what exactly falls within the protection of the legislation. After this initial division, those animals which fall within the statutory definitions are then generally classified as either unprotected or protected. Unprotected species may include ‘noxious’ pests or simply those which exist in large numbers. Protected species may be partially protected during the breeding season (for example, game species) or totally protected at all times (many native and rare, threatened or endangered species). Protected species may sometimes also become ‘locally unprotected’ in certain areas of a state, or at certain times of the year. 14.35 The methods by which animals may be taken or killed are strictly controlled and almost invariably a licence issued by the appropriate wildlife authority is required to take, kill or deal with protected species. Returns made by licence holders help the authorities to keep a check on populations and the distribution of particular species. Many of these matters are also controlled by regulations made under the authority of the parent statute. Marine mammals are sometimes singled out by legislation for specific protection. Offences against taking protected flora may, of course, occur in circumstances where native vegetation is unlawfully removed, exposing the offender to prosecution under both regimes.138

Native wildlife Australian Capital Territory 14.36 The purpose of the Nature Conservation Act 2014 (ACT) is to

protect, conserve and enhance biodiversity, 139 including native species140 and ecological [page 578] communities;141 but still uses the terms ‘native species’,142 ‘animals’ and ‘plants’.143 ‘Animal’ includes any vertebrate species, other than humans, and includes fish and invertebrate species that either have special protection status or are protected native species.144 ‘Conservation’ means the protection and maintenance of nature while allowing for its ecologically sustainable use.145 The Conservator of Wildlife146 must prepare a draft nature conservation strategy for public consultation and approval by the minister.147 The strategy must contain proposals about the protection, management and conservation of native species indigenous to the Australian Capital Territory and significant ecosystems; include detail strategies to address actual and potential impacts of climate change; and include anything required to be included by a conservator guideline.148 Protected native species are divided into: (a) restricted trade;149 (b) rare;150 (c) data deficient;151 and (d) any other category prescribed by regulation.152 In addition, ‘special protection status’ may be conferred on members of a species of native animal or plant where they are a threatened species or threatened or migratory species listed under the EPBCA.153 [page 579] A native species conservation plan may be prepared for any native species for which it is considered appropriate to make such a plan.154 A range of offences are prescribed for both native animals and plants, including to engage in any conduct that causes the death of any native animal;155 and taking, selling, importing, exporting, injuring or damaging any native plant or animal156 — unless the conduct constituting the offence is otherwise authorised under a nature conservation licence157 or other authority, controlled native species management plan,158 management agreement159 or activities declaration.160 The conservator may issue a wide range of directions, including conservation directions to occupiers of land where the conservator reasonably believes that there is conduct that the occupier may engage in that may threaten a native species, community or

habitat; or could engage in that would promote the protection or conservation of the native species, community or habitat.161 To protect native wildlife from cats, if the minister is satisfied that cats in an area are a serious threat to native flora or fauna, the minister may declare the area to be an area where cats must be confined to their keeper’s or carer’s premises at all times or during stated times.162

New South Wales Fauna 14.37 Under the National Parks and Wildlife Act 1974 (NSW) (NPWA), the term ‘animal’ includes both vertebrate and invertebrate creatures, but not fish within the meaning of the Fisheries Management Act 1994 (NSW), other than amphibians or aquatic or amphibious mammals or aquatic or amphibious reptiles.163 ‘Fauna’ means [page 580] any mammal, bird, reptile or amphibian.164 Any species not listed as ‘unprotected’ in Sch 11 of the Act is automatically ‘protected’.165 14.38 It is an offence to harm any protected fauna, without a licence,166 unless essential to the carrying out of development permitted under the Environmental Planning and Assessment Act 1979 (NSW) (EPAA)167 or in other specified circumstances.168 ‘Harm’ ‘includes hunt, shoot, poison, net, snare, spear, pursue, capture, trap, injure or kill, but does not include harm by changing the habitat of an animal’.169 The Act formerly used the term ‘take’ as well, and this included to ‘disturb’. In Corkhill v Forestry Commission (NSW) (1991) 73 LGRA 126, the Land and Environment Court held that ‘disturb’ included indirect action as well as direct physical injury. It covered modifications to habitat that threatened fauna by adversely affecting essential feeding and breeding patterns, which would lead either immediately or over time to a reduced population. The Court of Appeal ultimately found that the Forestry Commission could legitimately issue licences to take protected fauna, but it could not extend this to endangered fauna.170 It was, therefore, an offence, even with the issue of a licence under the Forestry Act 1916 (NSW), to take such fauna by logging and, therefore disturbing, their habitat.171 This decision, understandably, threw the logging industry and the Forestry Commission into near panic. Following Corkhill, although the definition of ‘take’ in the NPWA was amended to specifically include ‘significant

modification of the habitat of the fauna which is likely to adversely affect its essential behavioural patterns’,172 the logging industry was protected from the licensing requirements of the national parks legislation in relation to endangered fauna. At the same time, the government drew up legislation to protect threatened species. With the passage of the Threatened Species Conservation Act 1995 (NSW), the term ‘take’ has been dropped from the NPWA and changing the habitat of an animal has been specifically excluded from the term ‘harm’. [page 581] 14.39 It is also an offence to possess, buy, sell, import or export any protected fauna without being licensed, unless the animal is progeny of lawfully obtained fauna, or is incapable of fending for itself in its natural habitat, and the Director of National Parks has been informed of the fact of possession and any instructions have been complied with.173 The director or other authorised officer may give directions to persons who are in possession of protected fauna concerning the welfare of those animals.174 14.40 It is an offence to harm fauna for purposes of sale, except for unprotected species such as foxes or rabbits.175 It is an offence to harm any animal within a protected area without being licensed, except in circumstances specified by the legislation.176 It is not, however, an offence to kill a snake, even within a reserve, so long as there are reasonable grounds for believing that, at that time, the snake constituted a danger to persons or property.177 Animals that are not indigenous to Australia may be classified under the Biosecurity Act 2015 (NSW) as pests posing a threat to the environment or public health and subject to risk-based decision-making in relation to biosecurity under the extensive provisions of this Act.178

Flora 14.41 The NPWA prohibits the picking or possessing of protected native plants, except under licence or other authority, or by or with the consent of the owner or occupier of private land, or Aboriginal land, on which the plant is growing.179 Protected native plants are listed in Sch 13 of the Act. Sales of protected native plants are similarly controlled by licence.180 Stricter restrictions apply to protected areas. All native plants are protected in some areas, while in others no plant, flower, vegetation or timber of any description may be removed, injured or destroyed.181 Licences may be issued authorising the picking of specified protected native plants182 and to occupiers of private

land for the growing of protected native plants for sale.183 The DirectorGeneral may require a flora plan of management to be prepared for any commercial activity relating to a species or group of species of protected native plant if the activity has the potential to affect adversely the conservation of the species or group.184 [page 582] In flora reserves, licences issued under the Forestry Act 2012 (NSW) are subject to various prohibitions or restrictions.185 The functions of a land manager of a flora reserve include to exercise functions in a manner that is not inconsistent with the use of flora reserves for the preservation of native flora, and in accordance with the working plan for the flora reserve.186

Stop orders 14.42 Where any action is likely to significantly affect protected fauna, native plants or their environment, a stop-work order effective for 40 days, unless extended, may be issued.187 The minister also has wide powers to make interim protection orders which may last for up to two years.188

Northern Territory 14.43 The Northern Territory adopts the IUCN classifications for wildlife.189 ‘Wildlife’ essentially means all indigenous animals and plants, migratory species and those introduced by Aboriginal people before 1788.190 Protected wildlife comprises all wildlife within protected areas, indigenous invertebrates and others described in the Regulations.191 The killing or dealing with protected wildlife will need permission.192 Any taking or interference with protected wildlife may only be done under permit, which itself must be consistent with management objectives.193 Taking or interfering with unprotected wildlife for commercial purposes will also require a permit.194 Management of wildlife must be appropriate to its classification, and principles of management include conservation of biodiversity, survival of wildlife within their natural habitat and sustainable use of wildlife.195 Declarations may be made for feral animals.196 Non-indigenous invertebrates are automatically regarded as prohibited entrants, unless listed in the Regulations as not prohibited.197 It is an offence to take, kill or possess any animal, plant or fish in freshwater in any sanctuary, unless authorised under the Act to do so.198

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Queensland 14.44 In Queensland, wildlife includes any taxon or species of animal or plant, including viruses and unicellular organisms.199 Wildlife may be classified as ‘protected’,200 ‘prohibited’201 and ‘international’.202 Protected wildlife means native wildlife which under the Act is prescribed as presumed extinct, endangered, vulnerable, rare, near threatened or least concern.203 A ‘protected animal’ or ‘protected plant’ means an animal or plant prescribed under the Act as threatened, rare, near threatened or least concern wildlife. It excludes processed products made or derived from a protected plant or animal, which is so declared under a conservation plan or regulation not to fall within the definition.204 14.45 The Nature Conservation Act 1992 (Qld) explicitly adopts an ecosystems approach to wildlife protection. It declares that the overall object of nature205 conservation shall be achieved, among other things, by protection of the biological diversity of wildlife and its habitat and that the use of protected wildlife and areas must be ecologically sustainable.206 Wildlife is to be managed in accordance with prescribed management principles, the declared management intent prescribed by regulation207 and any conservation plan.208 Management principles will depend on the classification of the wildlife.209 The declared management intent must contain a statement of the significance of the wildlife to nature and its value, proposed management intent and principles relating to any proposed taking or use of the wildlife.210 Protected wildlife is to be managed so as to ensure its survival and natural development in the wild and to conserve its biological diversity by dealing with threatening processes,211 conserving critical habitat and ensuring any use of the wildlife is ecologically sustainable.212 Conservation plans may be prepared for any native wildlife or required of persons applying [page 584] for licences, for example, to deal with protected wildlife.213 Such plans need to be consistent with the management principles applying to the wildlife before they can take effect. 14.46 All protected plants (except on private land)214 and animals215 are made the property of the state until lawfully taken. It is an offence to take, use or keep a protected animal;216 take a protected plant,217 without

authorisation218 or under a conservation plan,219 or unavoidably in the course of a lawful activity; and interfere with the natural resources of protected areas,220 a term which includes wildlife.221 In Booth v Yardley [2006] QPEC 119, for example, the respondent was ordered to dismantle an electric grid system constructed for the purpose of electrocuting flying foxes, unless the taking of flying foxes by this means was specifically authorised under s 88 of the Act.222 14.47 ‘Take’ in relation to an animal223 includes to kill, injure or harm, pursue, lure, dredge or bring ashore or aboard a boat. It also includes gather, dig up, fell, remove or injure a plant, or attempt to do any of these things.224 ‘Interfere with’ includes damage, destroy and dig up. In Central Queensland Speleological Society v Central Queensland Cement Pty Ltd [1989] 2 Qd R 512, it was argued that blowing up a known over-wintering site for protected ghost bats would amount to an unlawful ‘taking’ under the previous legislation, the Fauna Conservation Act 1974 (Qld). Thomas J commented that destruction of nests could be prohibited under the Act, but to obtain an injunction there must be some evidence that an actual creature would be ‘damaged’ or ‘disturbed’. He said it was not enough that destruction of nesting sites would probably damage descendants of living bats nor that living bats might be damaged. By contrast, De Jersey J held that since no bats were currently living in the cave, destruction at that time could not injure, destroy or damage any bat. An animal returning to a previously [page 585] abandoned nest site to find it no longer available would not be disturbed within the meaning of the Act. 14.48 The term ‘disturb’ is not used in the new Act, but arguably the terms ‘injure’ and ‘harm’ in the new legislation could cover the word ‘damage’, and ‘interfere with’225 could encompass ‘disturb’. However, ‘interfering with’ rock that forms roosting and nesting sites, according to the Queensland bat case, may not be interfering with the wildlife in any event. The net effect, therefore, of the new statutory definitions may be to leave a hiatus in which it may be possible to destroy habitat that could be used by protected wildlife, if it cannot be proved that the wildlife is actually in occupation of the habitat at that particular time.226 14.49 On the other hand, there are other mechanisms under the Act by which this hiatus may be repaired in some circumstances. ‘Critical habitat’ may encompass areas of land considered essential for the conservation of protected wildlife even though not presently occupied by the wildlife.227 Areas

of major interest are those that contain natural resources of significant nature conservation value.228 Taking or interfering with native wildlife, other than protected wildlife, in an area identified under a conservation plan as including critical habitat, or an area of major interest, is an offence unless authorised under the conservation plan or a licence or other authority.229 14.50 A person convicted of an offence of taking protected wildlife is liable to an additional penalty equal to twice the conservation value of the species.230 In addition, and at the behest of ‘a person’,231 the court may issue enforcement orders,232 including interim enforcement orders,233 requiring cessation of unlawful activities and rehabilitation or restoration of a critical habitat, cultural or natural resource or protected area.234 [page 586]

South Australia Fauna 14.51 Under the National Parks and Wildlife Act 1972 (SA), ‘animal’ includes any species of animal.235 However, ‘protected animals’ are only indigenous and migratory birds, mammals and reptiles, unless otherwise declared by regulation or in Schs 7–9 of the Act (endangered, vulnerable and rare species).236 The definition does not include those species listed in Sch 10 as, or declared by regulation to be, unprotected. Restrictions imposed under the National Parks and Wildlife Act 1972 (SA) are subject to lawful activities carried out under the provisions of other enactments, especially the Native Vegetation Act 1991 (SA) and Natural Resources Management Act 2004 (SA).237 14.52 The wilful or negligent taking of any protected animal is prohibited without a permit.238 It is also an offence to interfere with, harass or molest a protected animal;239 to keep, possess, import, export and sell protected animals without a permit,240 unless the species is exempted from these requirements;241 and to release certain species in specified areas.242 Trial farming of protected species may also be conducted under permit.243 The harvesting (killing in the wild or capturing in the wild and then killing, in order to sell the carcass or otherwise use it) of protected animals244 may also be authorised under a plan of management, even in reserves.245 The minister may, however, declare open seasons for protected animals of specified species, except endangered species. In that case, it shall not be unlawful to take such

animals in accordance with the terms and conditions of the notice.246 Such a notice cannot apply to any reserve, or wilderness protection area or zone, and must expressly relate to a game reserve if it is intended to include it within the authority of the declaration. 14.53 It is also permitted to kill (but not sell) an Australian magpie or poisonous reptile in circumstances where it is attacking, or has attacked, someone, or to kill any poisonous [page 587] reptile that is likely to attack someone, is in dangerous proximity to any person, or is, or has been, in such proximity to a person as to cause reasonable anxiety to that person.247 The use of poison to take protected animals also requires a permit. There is, however, a defence of good faith where the poison was used to destroy vermin and reasonable precautions were taken to avoid endangering any protected animals.248 There are also restrictions on the sorts of devices that may be used to take animals.249 The hunting of animals (except for vermin) is prohibited, except under licence, though no permit is required to destroy any animal that is endangering human life, or any animal that is not a protected animal which is causing damage to crops or property.250 No animal may be taken in a sanctuary without a permit, unless not a protected species and taken with the authority of the landowner.251 Under the Fisheries Act 2007 (SA) it is an offence to purchase, possess or sell an aquatic resource of a protected species.252 Registered owners of registered boats are liable for offences committed on board, but of course the offence must first be proved according to normal principles of criminal liability.253

Flora 14.54 Under the National Parks and Wildlife Act 1972 (SA), native plants may be further classified as endangered, vulnerable or rare.254 It is an offence to take or possess any native plant on any reserved land, including a forest reserve, or other Crown land, and native plants of prescribed species on private land, without a permit.255 The sale or gift of native plants of prescribed species, other than in accordance with a licence granted pursuant to the Forestry Act 1950 (SA), is also prohibited.256 Native plants may not be taken in a sanctuary without a permit.257

Tasmania 14.55 The Nature Conservation Act 2002 (Tas) defines ‘wildlife’ as including any living creature, apart from stock, dogs, cats, farmed animals and fish.258 The Wildlife (General) Regulations 2010 (Tas) classify wildlife as specially protected; protected; protected that may be bought, sold or held without a permit; partly protected; [page 588] restricted; restricted (special purpose); domestic; and controlled.259 Some forms of invertebrates, as well as vertebrates, are listed. Protected plants may also be prescribed by the Wildlife Regulations,260 but at the time of writing there were none listed. Any other form of wildlife may be regarded as unprotected. Permits may be granted for taking all forms of wildlife and plants, subject to certain restrictions,261 and dealing with specially protected, protected, partly protected and restricted (special purpose) wildlife.262 Otherwise, it is generally an offence, except in specified circumstances, to take or deal with specially protected, protected, partly protected or restricted (special purpose) wildlife.263 The hunting and taking of particular species of wildlife, such as wallabies, possums, deer, wild duck and mutton-birds, is also controlled by the Regulations.264 It is forbidden to bring into the state without lawful authority certain animals such as foxes and dingoes.265 Protected fish may be declared under the Living Marine Resources Management Act 1995 (Tas).266

Victoria Fauna 14.56 The Wildlife Act 1975 (Vic) defines ‘wildlife’ as including all indigenous vertebrates that are indigenous to Australia, some non-native game species, and terrestrial invertebrate animals that are listed under the Flora and Fauna Guarantee Act 1988.267 All wildlife is protected wildlife except for pest animals within the meaning of the Catchment and Land Protection Act 1994, and others as specified by order.268 Protected wildlife that is causing damage to property or crops may be declared to be locally unprotected.269 The minister may also issue a closure notice at any time that

prohibits absolutely or regulates the taking, destroying or hunting of any particular kind of wildlife in any area.270 It is an offence to take, destroy or wilfully disturb any wildlife in a state wildlife reserve, except a game reserve or wildlife sanctuary, without licence or authorisation.271 Likewise, it is an offence to hunt, take, destroy or otherwise deal with protected wildlife [page 589] wherever they are found, or, if game, during a close season, without permission,272 and to import or export wildlife without permission.273 Licences may be suspended or cancelled where a person is shown to have breached the conditions of the licence or committed an offence.274

Flora 14.57 Under the Flora and Fauna Guarantee Act 1988 (Vic), any flora, even non-indigenous species, may be declared to be protected flora.275 It is an offence to take, trade in, keep, move or process protected flora without a permit.276 A permit may not be issued if this would threaten conservation of the flora.277 It is, however, a defence to the taking of protected flora to show that the flora was taken accidentally and reasonable care was exercised. It is similarly a defence, where the flora was taken from private land other than land that is the critical habitat of the flora, that the person taking the flora was the landowner or leaseholder, or someone authorised by those persons to take flora, and that it was not taken for purposes of sale.278 It is also an offence to release any prescribed flora into the wild without a permit.279 A permit may be issued to take listed flora for purposes of control where that flora is a serious cause of injury to property, crops, stock or other listed flora.280 The provisions of this Act prevail over any other authority to take flora granted under any other Act, although activities authorised under this Act will not override prohibitions contained in other Acts.281

Roadside weed and pest animal management 14.58 Under the Catchment and Land Protection Act 1994 (Vic) Pt 3A declared municipal districts must prepare a roadside weed and pest animal management plan that sets out a program of measures to eradicate, as far as possible, all regionally prohibited weeds and pests, and protect the infrastructure and environmental value of roadsides.

Western Australia Fauna282 14.59 Under the Wildlife Conservation Act 1950 (WA), ‘fauna’ includes any indigenous animal or periodic migrant, and ‘animal’ means any living thing that is [page 590] not a human being or a plant.283 Other animals may also be included as ‘fauna’ by notice of the minister.284 All fauna is protected, except for those species declared by the minister to be ‘unprotected’.285 However, certain fauna may not be protected in open seasons, in certain parts of the state, or may be only protected for a certain period of time.286 The minister may also declare any species of fauna to be ‘wholly protected’ because it is likely to become extinct, is rare or is otherwise in need of special protection.287 The minister may declare open and close seasons and regulate the taking and disposal of fauna as considered advisable, except for ducks, geese and quail, which may not be taken for purposes of sport or recreation.288 14.60 It is an offence to take or possess any protected fauna, except in accordance with the conditions of a licence or other authority.289 It is also an offence to possess any illegally taken skins or carcasses of any protected species, or to deal with the skins of any fauna that are not tagged as required under the Act, unless lawfully taken and processed for sale in accordance with a processor’s licence or exemption.290 The breeding for business or gain, import or export, sale and processing of any fauna is prohibited unless under the authority of a licence.291 This section similarly prohibits the release, or keeping for release, of animals in any part of the state where that species is not normally found in the wild. It also forbids the import or keeping of any animal whose habits or nature might, in the opinion of the minister, become or threaten to become injurious to fauna. Otherwise, noxious species are controlled under the provisions of the Agriculture and Related Resources Protection Act 1976 (WA). [page 591]

Flora 14.61 Under the Wildlife Conservation Act 1950 (WA), ‘flora’ includes all plant life native to the state,292 and any other non-native species declared by

the minister to be flora for the purposes of the Act, except those noxious species included within the provisions of the Agriculture and Related Resources Protection Act 1976 (WA).293 The minister may then declare any species of flora to be protected flora, either throughout the state or in such parts as are specified.294 Otherwise, the wilful taking295 of protected flora on Crown land without a licence is prohibited. This is unless the taking occurred as an ‘unavoidable incident or consequence’ in the performance of any right, power or duty under any Act, or under an agreement to which the state is a party that has been ratified by an Act.296 The taking of protected plants on private land requires the consent of the owner or occupier, though a similar defence applies.297 No such lawfully taken plants may be sold, however, unless a commercial producer’s licence or nurseryman’s licence has first been obtained. The flora is then identified by tags or as otherwise specified. An applicant for a licence, unless already convicted of any offence against the Act, is entitled to be issued with that licence. At the same time, the minister may impose such conditions relating to the conservation of protected flora as is thought fit.298 Licences to take protected flora on Crown land may be granted for scientific or commercial purposes.299 The sale of any protected flora is prohibited, except in accordance with the terms of a licence, or unless the flora has been unlawfully sold and forthwith, after the purchase, the purchaser made a record of the quantity and description of the flora purchased, and the date on which, and the person from whom, it was purchased. This record must be retained for 12 months and produced on demand to a wildlife officer.300 14.62 Where the minister is of opinion that any class or description of protected flora is likely to become extinct or is rare or otherwise in need of special protection, that class or description of flora may be declared to be rare flora.301 Under this declaration, no plant may be taken, even under licence or with the consent of the [page 592] landowner, unless the further consent of the minister is obtained.302 Where, however, an owner or occupier of private land who has been refused consent to take rare flora, satisfies the minister that he or she will suffer loss of use or enjoyment of the land by reason of that refusal, then the owner is entitled to compensation for up to five years. An application to take rare flora on the land for purposes to which the compensation relates may not thereafter be refused by the minister.303

Exemptions for the preservation of traditional Aboriginal customs 14.63 Indigenous peoples often rely for subsistence on their traditional ability to harvest wildlife for food. This need has to be recognised and balanced against both conservation and commercial objectives.304 Special provision is made by most biodiversity legislation to allow Aboriginal inhabitants the right to continue to take and kill otherwise protected wildlife in the furtherance of native customs relating to the hunting and gathering of traditional food sources.305 14.64 In New South Wales,306 special provision for Aborigines to enter into agreements to access private land for hunting, fishing or gathering, is made under the Aboriginal Land Rights Act 1983 (NSW).307 Such rights, however, are subject to the provisions of other legislation, such as the NPWA, although under that Act, prohibitions on taking native plants do not apply in their entirety to land dedicated as Aboriginal land under Pt 4A of that Act.308 Limited exemptions for hunting fauna and taking native plants for domestic purposes are also specified in the National Parks and Wildlife Regulation 2009 (NSW).309 14.65 In the Northern Territory, provisions with respect to protected animals do not operate so as to prevent Aborigines from continuing their traditional uses of land and water for hunting for food (but not for sale), and for ceremonial and religious purposes, unless specifically restricted by regulations made for the purpose [page 593] of conserving wildlife in the area.310 Leases of Crown land and pastoral leases are also subject to reservations in favour of Aboriginal inhabitants who ordinarily reside on or who by Aboriginal tradition are entitled to use or occupy leased land to, subject to other laws, take wild animals and vegetable matter for food or ceremonial purposes.311 The Conservation Commission is also empowered to enter into agreements with an Aboriginal land council relating to schemes for the protection and conservation of wildlife, and the protection of the natural features of Aboriginal land.312 Subject to other laws, the Fisheries Act 1988 (NT) also does not limit the right of Aborigines who have traditionally used the resources of an area of land or water in a traditional manner from continuing to use those resources in that area in that manner.313

14.66 In Queensland, until the passage of the Nature Conservation Act 1992 (Qld), the state did not appear to make any exception for traditional Aboriginal customs. This situation led to some adverse comment in the High Court in Walden v Hensler [1986] 2 Qd R 490. Under the Fauna Conservation Act 1974 (Qld) s 54 (now repealed), it was an offence to take fauna without a permit. The defendant, an Aborigine, shot a bush turkey in pursuance of what was claimed to be a ‘traditional right’, believing that he had the right to do so and that no offence was being committed. As an exception to the general rule that ignorance of the law is no defence, the Criminal Code s 22 allowed a defence of ‘honest claim of right’. At first instance, the court held that it was not sufficient to establish the defence that the defendant honestly believed that he was entitled to do what he had done. Neither was a claim to immunity from a statute a claim of right. The High Court held that, technically, the defence had not been made out, but that the penalty should be set aside and the defendant discharged. The minority thought the claim of right had been made out, but agreed in any case with the course of action adopted by the majority. Brennan J remarked: To deprive an Aboriginal without his knowledge of his traditional right to hunt for bush tucker for his family on his own country and then to convict and punish him for doing what Aborigines had previously been encouraged to do would be an intolerable injustice. It adds the insult of criminal conviction and punishment to the injustice of expropriation of traditional rights. It can and should be avoided by discharging the appellant absolutely.

14.67 The Nature Conservation Act 1992 (Qld)314 now allows any Aborigine or Torres Strait Islander to take, use or keep protected wildlife ‘under Aboriginal tradition315 or Islander custom’.316 This ‘right’, however, does not apply to protected [page 594] wildlife in protected areas317 and is to yield to any contrary provisions of a conservation plan expressly directed at such rights.318 It will, consequently, be an offence to disregard the provisions of such a plan.319 The policy of the legislation, therefore, is clearly to favour the aims of conservation over traditional rights where the two might come into conflict.320 14.68 In South Australia, it is not illegal for Aborigines to take protected animals or native plants, except for prescribed species, outside reserves or, subject to proclamation, within certain reserves, if taken for food or solely for cultural purposes of Aboriginal origin.321 14.69 In Tasmania, it is stated that nothing in the Nature Conservation Act 2002 (Tas) precludes an Aboriginal cultural activity by an Aboriginal person

on Aboriginal land, within the meaning of the Aboriginal Lands Act 1995 (Tas), so long as that activity is, in the opinion of the minister, not likely to have a detrimental effect on fauna and flora.322 ‘Aboriginal cultural activity’ is defined to mean the activity of hunting, fishing or gathering undertaken by an Aboriginal person for his or her personal use, based on Aboriginal custom of Tasmania as passed down to that Aboriginal person. 14.70 In Victoria, an authorisation is required before wildlife may be taken for Aboriginal cultural purposes,323 although an ‘authorisation order’ may be granted to a specified class for such purposes.324 The Traditional Owner Settlement Act 2010 (Vic) allows the minister to enter into a natural resource agreement with a traditional owner group entity,325 following which various authorisations in respect of natural resources may be conferred, not only in respect of traditional purposes but also in respect of commercial purposes specified in the agreement.326 14.71 The Wildlife Conservation Act 1950 (WA) contains an exemption for persons of Aboriginal descent, as defined by the Aboriginal Affairs Planning Authority Act 1972 (WA) s 4. The Act authorises the taking of fauna and flora by Aborigines on Crown land that does not form part of a nature reserve or sanctuary, subject to the consent of any occupier, in such numbers as are sufficient only for food for themselves and their families.327 This provision does not authorise the sale of any animals taken, but the conservator may issue a certificate to any person authorising the sale of skins of kangaroos that have been lawfully taken under this provision. The operation of this exemption may, however, be suspended or otherwise restricted by the Governor where [page 595] satisfied that the provisions of the section are being abused, or that any species of fauna is likely to become unduly depleted.

Threatened species 14.72 The legislative approach to management of threatened species, which tends, in theory at least, to single out particular species and ecological communities and their habitat for enhanced protection, has received a fair amount of analysis and critique.328 As a matter of policy, such an approach may be seen as taking positive action to restore the status of species under threat. It may, however, be seen as

placing undue emphasis on particular species and ecosystems, while at the same time devaluing the status of biodiversity that is not currently so classified. It does seem clear that without proper attention to conservation of biodiversity that is not currently classified as formally ‘threatened’, many more species could be invested with that status in the years ahead, throwing further strain on the resources available for dealing with threatened species.

Flora and Fauna Guarantee Act 1988 (Vic) 14.73 The first comprehensive piece of legislation in Australia to adopt the habitat approach to species conservation was the Flora and Fauna Guarantee Act 1988 (Vic). In the initial stages of the operation of the Act, it was reported, however, that lack of resources for its implementation had limited its application, and that a number of significant powers had not been used.329 14.74 The objectives of the Act are that Victoria’s flora and fauna can ‘survive, flourish and retain their potential for evolutionary development in the wild’. Also, that potentially threatening processes are properly managed so ‘that any use of flora and fauna by humans is sustainable’ and that ‘the genetic diversity of flora and fauna is maintained’.330 To further the objects of the Act, private landowners are encouraged to enter into a land management cooperative agreement under the Conservation Forests and Land Act 1987 (Vic), and local communities are encouraged in the education [page 596] and conservation of native flora and fauna.331 Public authorities are instructed to have regard to the flora and fauna conservation and management objectives.332 The Act applies to any animal or plant life that is indigenous to Victoria, in any stage of biological development, and includes fish and invertebrates.333 Wildlife that constitutes a serious threat to human welfare may, however, be excluded from the Act.334 14.75 The Act provides for a list to be drawn up of species and communities of wildlife that are threatened and another of potentially threatening processes.335 In Australian Deer Association Inc v AttorneyGeneral for the State of Victoria [2008] VSC 204, a challenge to the listing of a potentially threatening process, namely ‘reduction in biodiversity of native vegetation by Sambar (Cervus Unicolor)’, was rejected by the court. The listing does not necessarily have to reflect the precise terms either of the

nomination or of the preliminary recommendation. In Australian Deer Association Inc v Attorney-General for the State of Victoria at [52], the court emphasised: … the central role of the Committee as the filter between receipt of a nomination and making a final recommendation. It is apparent that in performing this role the Committee brings its expertise to bear in arriving at a formulation of a recommendation based upon the nomination. It may occur, and it did in this case, that the ultimate formulation of that found in the final recommendation differs in some respects from the Nomination, and from the preliminary recommendation. The fact of such differences reflected no more than the consequence of the performance of its role by the Committee.

Flora and fauna, including fish,336 are eligible for listing if ‘in a demonstrable state of decline which is likely to result in extinction or if it is significantly prone to future threats which are likely to result in extinction’.337 Nominations may be made by any person.338 The criteria for determining eligibility for listing are set out in the Flora and Fauna Guarantee Regulations 2001 (Vic) Sch 1. A potentially threatening process may be listed ‘if, in the absence of appropriate management, it poses or has the potential to pose a significant threat to the survival or evolution of a range of flora and fauna’.339 Unusually, this list currently contains a number of specific human-induced threats, such as the use of lead shot for hunting waterfowl, loss of hollow-bearing trees from native forests and grazing by cattle in alpine areas. In addition, there are more general [page 597] threats occasioned by mistreatment of rivers and streams; for example, by pollution, alteration to natural flow regimes and temperature changes. 14.76 A flora and fauna guarantee strategy is to be prepared340 and action statements drawn up for listed species of flora and fauna and potentially threatening processes.341 Habitats may be identified as critical to the survival of any species of flora and fauna342 and management plans may (but not must) be prepared for any species or potentially threatening process, taking into consideration social and economic matters.343 It is here where the commitment to reducing the human-induced threatening processes may be measured. 14.77 Critical habitats may be protected by means of an interim conservation order made by the minister. Before doing so, however, the minister must also consider the social and economic consequences of making the order.344 Such an order lasts for two years unless repealed sooner.345 Both activities within or on a critical habitat, or activities taking place outside such

habitat that are likely to detrimentally affect a critical habitat, may be controlled by notice.346 Permits may be granted, however, for particular uses that do not have significant effects.347 Interim conservation orders prevail over local planning schemes,348 though both the merits of an order, and its legality, are subject to review by the Victorian Civil and Administrative Tribunal.349 Persons who suffer financial loss ‘as a natural, direct, and reasonable consequence’ of the making of an interim conservation order, or compliance with a notice, are entitled to compensation.350 Before an interim conservation order expires, all reasonable steps must be taken for the purpose of ensuring the long-term conservation of the species or critical habitats in respect of which the order was made.351 14.78 Where a person is convicted of an offence under this Act that involves the destruction of or damage to flora, fauna or a critical habitat, the court may order that person, in addition to any other penalty, to carry out restoration work and/or pay compensation.352 [page 598]

Other states 14.79 Legislation in other states adopts approaches that are similar to those contained in the Commonwealth and Victorian legislation, singling out endangered and threatened species, populations and ecological communities of wildlife for selective treatment.353 Any person may nominate a species or community for listing.354 Eligibility for listing in various categories may be set out in the legislation and by regulations.355 A scientific committee either determines356 or advises the minister357 on listing. A listing may, or will, trigger the necessity to prepare a strategic recovery plan.358 Habitat critical or essential to the survival or conservation359 of endangered or listed species may or must be identified360 to inform the planning process, and the specific threats to the survival of the species will be identified; listing of threatening processes may or will trigger the necessity to draw up a threat abatement plan.361 The sheer number of listings waiting to be dealt with, however, may mean that priorities in relation to recovery and threat abatement may have to be determined.362 Lists of threatened species and communities, and threatening processes, may be included in schedules to the legislation363 or otherwise declared and notified in the [page 599]

Government Gazette364 or by regulation.365 Provision may also be made for emergency listings for endangered species.366 Public authorities will be under various obligations to implement recovery and threat abatement plans,367 to have regard to plans and declarations of critical habitat,368 or not to act inconsistently with or do anything that conflicts with a plan, in carrying out their own functions,369 although this may still not preclude a departure from a plan.370 Planning authorities, in particular, may need to consider whether threatened species may be affected by any grant of planning permission.371 An environmental or species impact statement (SIS) may then have to be prepared and considered, and the relevant wildlife authorities consulted, before development consent can be given.372 14.80 The criteria that must be taken into account before a licence or other authority can be granted are usually spelt out by the legislation.373 Where the legislation requires the licensing authority to take into account whether the issue of a licence would authorise action that could significantly affect threatened species or their habitats, the criteria and processes for determining significance may also be spelt out in the legislation, assisted by guidelines.374 Sometimes, effectively managing a threatened ecosystem may mean having to restrain or cull other native wildlife, such as kangaroos — a difficult balancing act.375 14.81 Any unlawful taking of, interference with or harm to threatened species or critical habitat without a licence, or in contravention of the terms of a licence,376 [page 600] will generally be met by the imposition of criminal sanctions;377 by an administrative order378 requiring remediation or rehabilitation; or by civil enforcement proceedings.379 In Stephen Garrett v Dennis Charles Williams [2006] NSWLEC 785, for example, the court imposed an aggregate fine of $180,000 for unlawfully picking plants that were part of an endangered ecological community. In Plath v Rawson [2009] NSWLEC 178, where unlawful clearing of land had resulted in a high degree of environmental harm because of the significant extent of the clearing, and the defendant had acted in reckless disregard of advice that endangered and threatened species were present and could not be lawfully cleared without consent and had failed to express any contrition or remorse for carrying out the offence, an aggregate fine of $135,000 was imposed and the defendant was required to pay the prosecutor’s costs of some $300,000.380 14.82 Local councils also have to be mindful that their roadworks may

impact on protected plants. In Gordon Plath of the Department of Environment, Climate Change and Water v Lithgow City Council [2011] NSWLEC 8, the council was found guilty of two charges of picking threatened species of plants, listed as endangered, in connection with carrying out council roadworks.381 The court ordered that a penalty of $105,000 should be used by the Derelict Mines Program to assist in site rehabilitation at an oil shale quarry site. The council was also ordered to publish a notice of the conviction in the local newspaper. [page 601] Consultants also have to be wary of the existence of threatened species and make sure that any advice they give to their principal makes adequate reference to such species. In Gordon Plath of the Department of Environment and Climate Change v Fish; Gordon Plath of the Department of Environment and Climate Change v Orogen Pty Ltd [2010] NSWLEC 144, the defendants were convicted under the NPWA s 118D in that, as consultants assisting in the preparation of an application for development consent, they failed to advise the developer that damaging koala habitat was unlawful under the NPWA. The developer subsequently cleared the vegetation based on the advice of the defendants. Both defendants pleaded guilty and were convicted. Pain J imposed fines totalling $15,000 ($5000 Fish; $10,000 Oregon) plus prosecutor’s costs amounting to $105,000, which the defendants agreed to equally share. Both defendants were also ordered, pursuant to the NPWA s 205(1)(c), to conduct mapping in specific parts of the koala habitat and to publicise the offence. 14.83 In determining effective remediation for breaches the court may order a defendant to engage and pay for a qualified professional to assess the damage that has been caused and prepare a remediation action plan. The matter may then return to the court to determine any further orders that should be made to remedy the breach and environmental harm caused.382 Potential harm to threatened species and critical habitat from development or other activities not otherwise formally approved can be met by the issue of a stop-work order or interim protection order for a limited period, in order that consideration may be given to eligibility for listing and protection.383

Identification of threatened species 14.84 Threatened species legislation places no fundamental duty on any person or authority to identify and list threatened species covered by the

legislation. An independent scientific committee may be available to make recommendations for, or actually to determine whether, a listing should be made, and to keep those lists under review. However, there are no statutory duties either to reveal information that discloses that a species is in fact ‘threatened’, or to identify such species, or in fact to trigger the process of listing. It has been suggested that the focus of this approach on individual species and the habitat of individual species, combined with the likelihood that established concepts such as the listing and protection of endangered species will prevail over ‘indeterminate concepts’ such as the identification and protection of ecological communities, means that the legislation is not likely to be implemented to its fullest extent.384 The concept of ‘ecological community’ at least has been clarified by the decision in Vaw (Kurri Kurri) [page 602] Pty Ltd v Scientific Committee (2002) 122 LGERA 231; (2003) 128 LGERA 419, in which the New South Wales Court of Appeal accepted the advice of the Scientific Committee about how to determine the existence of such a community; in particular, the rejection of any notion that there has to be a minimum number of species present in order to constitute an ecological community.385 It is clear, however, that when assessing whether such a community actually occurs on land, then there must be a sufficient number of species to conclude that the community does in fact exist,386 though not all species need to be or can be found on each and every site. The absence of one species, even an identified canopy species, is not determinative, particularly where the intent of a listing is to ‘collectively cover all remaining native vegetation on the coastal floodplains of New South Wales’.387 14.85 Identification of ecological communities has also exposed the lack of harmony between Commonwealth listing processes under the EPBCA and the Threatened Species Conservation Act 1995 (NSW). In Murlan Consulting Pty Ltd v Ku-ring-gai Council [2007] NSWLEC 374, differences in the definition of ‘ecological community’ for Blue Gum High Forest between the two regimes allowed the proponent to argue that the community in question was not critically endangered and should be accorded a lower standard of protection, a submission that was rejected by the court. It is not in fact uncommon for different experts to come to totally different conclusions about the identification, ecological value and long-term viability of ecological communities.388 Then again: … in dealing with the nexus between development and sustainability, the questions that

frequently arise in addressing environmental impacts are what bushland should we keep, why should it be retained and if so, how much should be preserved in order to retain integrity and viability? These are extremely difficult questions, to which there is no single, perfect or correct answer. The underlying objectives of providing terrestrial and aquatic habitat have been researched poorly with respect to policy, particularly in urban areas …389

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Nominations for listing 14.86 Most scientific committees have limited powers to make recommendations other than listing. By contrast, the powers of the Fisheries Scientific Committee, under the Fisheries Management Act 1994 (NSW), appear more broadly based. They enable the Scientific Committee to recommend other specific measures that could be taken to protect an unlisted species, population or ecological community, such as fishing closures, prohibitions on the taking of specified species of fish, and prohibitions on the taking of specified species of fish for sale.390 Under the Threatened Species Conservation Act 1995 (NSW), the Scientific Committee may reject a nomination made by a member of the public that is not accompanied by the information prescribed by the regulations or because further information requested by the Scientific Committee is not provided.391 Although the Scientific Committee may seek advice and assistance from other persons in respect of such nominations, the ability to do this may depend on financial resources. There is no obligation on the Scientific Committee to assist in the process of determining the status of a nomination made by a member of the public. It is arguable, therefore, that the Act relies too heavily on the scientific information resource-gathering capacities of the public to support a nomination. This problem could be overcome if the criteria for making a provisional listing392 were extended to cover a situation where a member of the public had made a nomination that could reasonably be regarded as likely to lead to a listing, but more evidence was needed to confirm the status of the nomination. Such an approach would be consistent with the application of the precautionary principle in decision-making. On the other hand, it has been argued that as any person can make a nomination, this implies that detailed scientific information would not be expected in a nomination.393

Listing of threatened species, populations and

ecological communities and key threatening processes 14.87 Criticisms of the listing processes inevitably centre on failures to list, the tardiness with which listing occurs, and the apparent reluctance or inability to add to lists.394 In Vaw (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 128 LGERA 419, the criticism, by contrast, was centred on a listing for an ecological community that the plaintiff claimed the committee had no lawful authority to make. In rejecting the claim, the New South Wales Court of Appeal did, however, point out that listings had to be legally certain, in order to inform a citizen whether or not a specific location fell within the listing. A restatement of the statutory formula governing eligibility for listing would not satisfy the legal requirement to give reasons, although in this case [page 604] the breach by the committee in this regard did not invalidate its decision. Subsequent statutory amendments have in fact relieved the committee of the duty to give reasons in a newspaper advertisement; reasons can be found in the actual determination.395 14.88 Failure to list key threatening processes may be seen as a significant omission. Many of the processes that threaten biodiversity are undeniably of human origin, yet to list a human process such as logging or development or removal of native vegetation as a threatening process, and thereby trigger the obligation to prepare a threat abatement plan, is often politically unpalatable. For this reason, for a long time only threatening processes involving predation or invasion by feral animals such as foxes, cats and cane toads396 were listed. Some human activities have since been listed; for example, clearance of native vegetation, bush-rock removal, anthropogenic climate change, and alteration of habitat following subsidence due to longwall mining.397 Of course, the subsequent development of threat abatement plans is still subject to political decision-making that may reject recommended plans on social and economic grounds.398 Criticism also centres around the eligibility criteria for addition to lists, which focus on the ‘likeliness’ of an effect. This caused one critique to remark that such a requirement leaves ‘little room for error’. This is because endangered species are more susceptible to random events that, by definition, are ‘unlikely’. Species may become extinct despite not being scientifically ‘likely’ to do so.399

Critical habitat 14.89 Smith notes that the criteria for identification of critical habitat (and thus the basis for a declaration) is ‘inherently circular’:400 ‘… since the principal cause of biodiversity loss is habitat destruction or fragmentation it is simply irrational to link declarations of critical habitat only to endangered species’.401 He also notes that the New South Wales legislation fails to require that critical habitat must be declared if failure to do so would result in extinction.402 One of the real problems with declarations of critical habitat, however, is the fact that the decision to list critical habitat is often made by the minister,403 not by an independent scientific committee. Also, in New South Wales, the process of declaration imposes a duty on the Director-General and the minister to consider ‘social [page 605] and economic’ factors before a declaration is either recommended or made.404 The minister is also instructed to ‘consider whether, consistent with the principles of ESD, the recommendation might be amended to avoid or lessen any adverse consequences of the making of a declaration of critical habitat’.405 Clearly, therefore, political considerations will inevitably weigh heavily on the decision-making process.406 In New South Wales, there have been just four declarations of critical habitat.407 If protection of biodiversity is to be of fundamental importance, then the listing of critical habitat cannot be left for determination by social and economic factors. Habitat is either critical to the survival of species or it is not, and scientific criteria must determine this. In Queensland, the critical habitat of protected wildlife is to be identified and conserved ‘to the greatest possible extent’.408 What is ‘possible’ is always going to be affected by political considerations.

Recovery and threat abatement plans 14.90 The necessity to prepare a recovery plan, action plan or threat abatement plan will follow automatically from a listing of an endangered or vulnerable species or key threatening process in New South Wales and the Australian Capital Territory, and may follow the listing of any threatened species in Tasmania. The obligation to prepare a threat abatement plan follows automatically from the listing of a key threatening process. In

Queensland, an interim conservation order may provide for the prohibition or control of a specified threatening process.409 In New South Wales and Tasmania, the minister may refuse to approve recovery, and, in New South Wales, threat abatement plans, because of the likely social or economic consequences.410 In New South Wales, the minister may also approve a recovery plan in a form not recommended by the Director-General, though in this event reasons for the departure from the recommendation have to be stated.411 Provisions that emphasise economic and social considerations in decisions concerning recovery plans may well limit the effectiveness of such plans. 14.91 Mahony notes that, having exercised the discretion to prepare a threat abatement plan, there is no obligation to implement such plans.412 Further, they are [page 606] only a factor to be taken into account in decision-making processes.413 There is no requirement to ensure that recovery or threat abatement plans are incorporated into environmental planning instruments (EPIs). She also notes that the Victorian experience, under the Flora and Fauna Guarantee Act 1988 (Vic), has been to focus on preparation of plans for individual species rather than concentrating on threatening processes common to a number of species. 14.92 In New South Wales, the long lead times and expense involved in preparing recovery plans for over 850 listed species has made the process of recovery planning effectively unworkable, and forced the government to prepare a Threatened Species Priorities Action Statement.414 The statement must:415 (a) set out recovery and threat abatement strategies to be adopted for promoting the recovery of each threatened species, population and ecological community to a position of viability in nature and for managing each key threatening process; (b) establish relative priorities for the implementation of recovery and threat abatement strategies; (c) establish performance indicators to facilitate reporting on achievements in implementing recovery and threat abatement strategies and their effectiveness; (d) contain a status report on each threatened species, where information is available; and

(e) set out clear timetables for recovery and threat abatement planning and achievement. The statement416 essentially prioritises recovery and threat abatement planning by reference to 34 particular recovery and threat abatement strategies. The statement then prioritises actions under those strategies, broadly into high, medium and low, with each of these categories also split into three levels of priority. Species that have been prioritised (31 recovery plans and five threat abatement plans) are set out in the statement.417

Biodiversity and land use planning 14.93 This chapter is mainly about managing native biodiversity and protecting it from unlawful interference. This objective, however, cannot effectively be met unless biodiversity is also a fundamentally important consideration in land use planning and development control. Unless protection of biodiversity is linked with planning and development,418 then the regulatory authorities responsible for biodiversity [page 607] management and protection are fighting a losing battle. EPIs, and zoning provisions in those instruments that regulate development, are the first ‘filter’ for biodiversity protection; though the downside of this of course is the expectation that land zoned for development ought to be developed, even though little in the way of biodiversity assessment has been undertaken.419 In BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 at 262, this influence was acknowledged by McClelland J: ‘the more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects’. Piecemeal spot rezoning has contributed significantly to biodiversity decline in New South Wales.420 Strategic planning, by the preparation of EPIs, is discussed in greater detail in Chapter 9.

Species impact statements (NSW) 14.94 The EPAA handles possible impacts on threatened species from applications for development by setting out a number of criteria that must be taken into account to determine whether a development proposal or activity

may have a ‘significant effect’ on threatened species,421 and thus trigger the necessity to prepare a species impact statement (SIS) and lodge it with the application.422 This has become known as the ‘seven- (formerly eight-) part test’. It was held in Carstens v Pittwater Council (1999) 111 LGERA 1, that a decision, based on consideration of this test, that a proposed removal of trees to facilitate development would not have a significant effect on a threatened species, was a finding of fact that should not be subjected to overly critical or pernickety judicial review. It is clear, however, following the decision of the Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52, that a decision whether or not an SIS is required is so essential to the legislative scheme for protection of threatened species, that the circumstances supporting this, that is, the significance of the potential effects, will be treated in law as a question of jurisdictional fact. This means that the existence of the prerequisite circumstances is, under the legislation, an essential preliminary condition for the exercise of the power to determine whether an SIS is required, and may, therefore, be reviewed by the court.423 The consent [page 608] authority’s opinion about this is not determinative. On the other hand, in applying a listing to a particular proposal, it would be wrong to identify the presence of a listed ecological community irrespective of the extent of active regeneration that might bring it to life; in other words, the requirements to produce an SIS would not apply in a situation where the existence of a threatened ecological community is merely prospective.424 14.95 Neither can a consent authority avoid the necessity to require and consider an SIS through the use of conditions of consent that attempt to ameliorate any significant effect on threatened species. It is the activity itself that must be assessed, not the activity as altered by conditions of approval.425 Where an SIS is required, then the concurrence of either the DirectorGeneral or the minister is required to the final issue of development consent.426 Even though concurrence can involve trade-offs for offsets or conservation agreements,427 a site-by-site approach, however, still has the potential to miss opportunities to deal with cumulative impacts or integration between authorities and jurisdictions.428 14.96 These provisions do not apply to applications for state significant development, where impacts on threatened species will be integrated into the Director-General’s requirements for EIA.429 And although the minister

cannot override prohibitions in EPIs that involve ‘environmentally sensitive areas of state significance’, or ‘sensitive coastal locations’,430 these do not automatically include threatened ecological communities.431 And even restrictions on the minister’s power to overrule prohibitions in Local Environmental Plans (LEPs) if those provisions concern land of ‘high biodiversity significance’ are not specifically linked to threatened ecosystems.432 [page 609]

Biodiversity certification of planning instruments (NSW) 14.97 Amendments to the Threatened Species Conservation Act 1995 (NSW) (TSCA) obviate the necessity to prepare a SIS in circumstances where strategic planning incorporated in a legislative process or local environmental plan has already assessed likely impacts of vegetation clearance on threatened species and the proposal falls within the biodiversity planning considerations already undertaken. The TSCA433 now allows the minister to grant ‘biodiversity certification’ to EPIs434 and the ‘native vegetation reform package’435 if satisfied that the instrument, in combination with other measures, would lead to maintenance or improvement of biodiversity values. The practical effect of certification is to remove procedural and substantive requirements relating to development consent for clearance of native vegetation, including requirements for concurrence and preparation of an SIS.436 These provisions have, however, been described as ‘mechanistic’ rather than purporting to preclude all consideration of impacts on threatened species under the more general provisions of the EPAA s 79C.437 Such provisions rely heavily on the theory that comprehensive strategic planning (a ‘landscape approach’) can remove the necessity for compliance with detailed ‘site-by-site’ requirements so long as the proposal fits squarely within the contemplation of the strategic plan. The disadvantage of site-by-site approaches, of course, is that evaluation of development proposals relies wholly on sufficient and adequate information every time consent is sought to pick up the potential for significant impacts. The difficulty with a landscape or strategic approach that will need to be addressed is the ability to maintain or improve biodiversity values over time.438

Evaluating applications for development 14.98 It is generally a defence to a charge of harming protected or threatened species or ecological communities that the act constituting the alleged offence was authorised for the carrying out of development in accordance with a development consent.439 This means that prior evaluation of potential impacts of development on [page 610] biodiversity is essential to pursuing the objectives of biodiversity management and protection. Statutory instructions to give consideration to ‘environmental impacts’ effectively enliven consideration of impacts on biodiversity: see Chapter 10. Where threatened species are concerned, then of course a precautionary approach to granting development consent would be justified.440 After all, if a precautionary approach is not taken to possibly adverse effects on threatened species, then it is difficult to see where the precautionary approach would be applied. For example, where expert evidence differs markedly as to the distribution of species over the development site, the scientific uncertainty should be resolved by assuming a wide distribution.441 And as McClellan CJ showed in BGP Properties v Lake Macquarie City Council (2004) 138 LGERA 237, judicious use of the precautionary principle to test development applications that might impact on threatened species and communities can also be used to weed out unacceptable proposals.442 Such a process may also lead to, if not the outright refusal of a development application,443 at least the revision of conditions of consent444 including requirements for adaptive management and offsets,445 provision of a habitat management plan,446 or insistence on providing buffers, riparian zones or corridors to encourage wildlife movements.447 Provision of offsets might also be a strong consideration in balancing development against loss of native vegetation.448 Biodiversity offsets in relation to removal of native vegetation are discussed further at 13.36. 14.99 More detailed commentary on the use of the precautionary approach and other principles of ESD is provided in Chapter 8; strategic planning is discussed in Chapter 9; development assessment in Chapters 10 and 11; and standards for ‘considering’ relevant matters in decision-making processes in Chapter 22.

1.

For government information about international and domestic trade in wildlife, go to .

2.

See .

3.

See HRSC, Trafficking in Fauna in Australia, AGPS, Canberra, 1976.

4.

See 5.42.

5.

In R v Robison (1992) 62 A Crim R 374, the applicant was fined $3000 in respect of offences related to the attempted export of the eggs of native birds without a permit. The judge agreed with Lee J in Klein v R (1989) 39 A Crim R 332 that offenders must expect substantial sentences of imprisonment, because if wildlife was to be protected word must spread that jail will be the usual result for importing or exporting protected species without a permit. The court, however, held that although the offences were serious and capable of attracting a custodial sentence, nevertheless they were ‘victimless’ in terms of human suffering and no cruelty had been made apparent. Although protected, the specimens were not rare in Australia, and the defendant had not enhanced their possibility of extinction. The defendant had already served a period of imprisonment in distressed circumstances and imposition of a custodial sentence would probably have triggered the discretionary release of the defendant in any event. In Spreitzer v R (1991) 58 A Crim R 114, however, where the offender was convicted of importing parrots, not just their eggs, without a permit, the court agreed that in view of the potential for harm to Australian wildlife, only a period of imprisonment was appropriate.

6.

Illegal Trade in Fauna and Flora and Harms to Biodiversity, available at .

7.

.

8.

Sections 303CC and 303CD. CITES specimens are defined in s 528 by reference to species listed in CITES.

9.

Sections 303DD and 303EK. Regulated native specimens are specimens that are, or are derived from, a native animal or a native plant, and are not listed native exempt species: s 303DA.

10. It is also an offence to export or import a live animal in a manner that subjects the animal to cruel treatment, where the offender is reckless as to whether the animal is subjected to cruel treatment: s 303GP. On the forfeiture of unlawfully imported specimens (s 303GN), see Schwarzenberg v Commonwealth [2009] VCC 1513. 11. Sections 303CG, 303DG and 303EN; and on importing a product derived from a CITES species, see And Jombi and Minister for the Environment and Heritage [2004] AATA 1380. Note, however, that, even if the minister is not satisfied about prescribed matters, a permit may still be granted if ‘exceptional circumstances’ justify it: s 303GB. And see Hand and Minister for the Environment, Heritage and the Arts [2008] AATA 893; Zapirain and Minister for the Environment, Heritage and the Arts [2008] AATA 1047. 12. Sections 303FA–303FU. Purposes are broadly commercial and non-commercial, ranging from import of household pets or research to approved breeding programs and wildlife trade operations. On the importation of elephants for conservation breeding and propagation, see The International Fund for Animal Welfare (Australia) Pty Ltd and Minister for Environment and Heritage [2005] AATA 1210. Allars, ‘To Breed or to Exhibit?: The Asian Elephants Case and Reasons for Regulatory Failure’ (2007) 24 EPLJ 329 has suggested that the EPBCA fails to make provision for compliance with CITES by neglecting to consider the purposes of the importers of wildlife, in this case whether the purpose of the import was primarily commercial (for exhibition) or noncommercial (captive breeding). And on whether a destination for an application to export certain specimens of fish was ‘appropriate and acceptable’, see Anzbrook Pty Ltd v Minister for the Environment, Heritage and the Arts [2010] FMCA 34.

13. Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Pt 9A. 14. Sections 303FN–303FP. On the effect of an ‘approved wildlife trade operation’ on the future of grey nurse sharks, see Nature Conservation Council of NSW Inc and Minister for Environment and Water Resources [2007] AATA 1876. And on approved wildlife management plan, see Wildlife Protection Association of Australia Inc and Minister for the Environment, Heritage and the Arts, Re [2008] AATA 717. 15. Export regulations Schs 3 and 4; import regulations Sch 3A. 16. See . 17. See Ackroyd v McKechnie (1986) 66 ALR 287; Fergusson v Stevenson (1951) 84 CLR 421; see also Preston, ‘Section 92 and Interstate Trade in Wildlife: A Moral Question’ (1987) 4 EPLJ 175. 18. Per Deane J in Ackroyd v McKechnie (1986) 66 ALR 287 at 294; see also Wildlife Act 1975 (Vic) s 50. And see further 5.42 and following. 19. Section 4. See generally Gray, ‘Aquatic Imports in Australia: Quarantine, International Trade, and Environmental Protection’ (2000) 17 EPLJ 241. Also on the phytosanitary exception, see McDonald, ‘How Do You Like Them Apples? The WTO and Quarantine Restrictions’ (2004) 21 EPLJ 176. 20. Sections 11C–11E. 21. See generally Sharp, ‘Review of Australia’s National Environmental Impact Assessment Processes in the Control of Alien Species in Order to Prevent Biodiversity Loss’ (1999) 16 EPLJ 92. 22. Sections 52–55A. 23. Except in an emergency, the Act applies to pests (a) if the pest is capable of: (i)

infesting humans, animals or plants; or

(ii) acting as a vector for a disease; or (iii) causing disease in any other way; or (b) the pest is an invasive pest: ss 25 and 26. 24. Biosecurity Act 2015 (Cth) Ch 6. 25. Biosecurity Act 2015 (Cth) Ch 3. A Biosecurity Import Risk Analysis is an evaluation of the level of biosecurity risk associated with particular goods, or a particular class of goods, that may be imported, or are proposed to be imported, into Australian territory, including the identification of conditions that must be met to manage the level of biosecurity risk associated with the goods, to a level that achieves the appropriate level of protection (ALOP) for Australia; Biosecurity Act 2015 (Cth) s 166. The ALOP is a high level of sanitary and phytosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero, in accordance with Australia’s rights and obligations under the World Trade Organisation Agreement on Sanitary and Photosanitary Measures (SPS Agreement); Biosecurity Act 2015 (Cth) s 5. On the SPS Agreement see 4.40. 26. See generally Hardcastle, ‘Australian GATT-inconsistent Trade Measures under Multilateral Environmental Agreements’ (1998) 15 EPLJ 199. 27. See further 4.41. 28. See . See also Gullett, ‘Enforcing Bycatch Reduction in Trawl Fisheries: Legislating for the Use of Turtle Excluder Devices’ (2003) 20 EPLJ 195; Bache, ‘Current Australian Policy on Marine Wildlife Bycatch’ (2005) 22 EPLJ 212. 29. Section 7C. 30. Section 19.

31. Section 10. 32. Section 10(1)(c). 33. Section 178. Criteria for listing are set out in s 179. Criteria for the listing of marine fish may be varied by regulation: s 180. 34. See . 35. Defined in s 528 as including indigenous species, periodic or occasional visitors, and species present in Australia before 1400. 36. Section 528. 37. Section 181. Criteria for listing are set out in s 182. Lists are available at . 38. Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) cll 7.01 and 7.02. 39. Section 266B. 40. Sections 178(2) and 181(3). Native species that pose a serious threat to human health may be excluded: s 193. 41. Sections 178(4) and 181(4). 42. Sections 184–187. 43. Sections 189 and 190. Advice is not required for transfer of a species listed as extinct to another category: s 192. The Threatened Species Scientific Committee is established under ss 502 and 503. 44. Sections 186(2) and 187(2). 45. See 14.23 and following. 46. Sections 183 and 188. Amendment is subject to considering advice from the Scientific Committee: s 189. 47. Section 188(3). 48. Section 188(4). 49. The full list of key threatening processes is available at . 50. For procedures and requirements for nomination, see the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Div 7.2. 51. Section 194. 52. Section 194E. 53. Section 194E(1). 54. Section 194C. 55. Section 194D. 56. Sections 194G–194J. 57. Sections 194K–194M. 58. Sections 194N and 194P. 59. Section 194Q. 60. Guidelines and fact sheets on ‘significance’ for a range of species and ecological communities are available at . And on the application of the guideline (fact sheet) on Farming and Nationally Protected Grey Box Woodlands and Grasslands, see Henderson v Corporation of the City of Adelaide (No 2) [2012] FCA 9.

61. Section 18. 62. Sections 196F, 211F and 254F. 63. For example, ss 196B, 211 and 254. 64. See, for example, Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) (2008) 162 LGERA 154. 65. Section 18A. These provisions do not apply to extinct or conservation dependent species or vulnerable ecological communities: s 18A(4). In Humane Society International Inc v Minister for the Environment and Heritage [2003] FCA 64, guidelines that purported to exempt persons who were in possession of certain state permits to take two species of flying fox from the need to seek approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA), were declared to be unlawful by the Federal Court. 66. Section 496C. The landholder must have been reckless as to whether the contravention would occur; was in a position to influence the conduct of the actor in relation to the contravention at the time when the contravention occurred; and failed to take all reasonable steps to prevent the contravention. 67. Sections 196–196E. Listed threatened cetaceans are not covered by these provisions: s 195. Similar prohibitions, however, apply to all cetaceans (not just listed species) under ss 229–229D. 68. Sections 19 and 200–207 (permits). 69. Section 303A. An exemption may only be issued if it is in the national interest, which includes defence and security issues and national emergencies. 70. Section 19. 71. Section 517A. 72. On offsets generally, see further 13.39. 73. And on the possibility of offsets being used as a condition of consent, see 10.50. 74. Sections 19(3)(b), 20(2)(c) and 20A(4)(c). 75. Section 75(2)(b). 76. See the examples given in Nelson and Sharman, ‘More Than Tilting at Windmills: A Bird’s Eye View of a Bio-offsets Scheme under the EPBC Act’ (2007) 24 EPLJ 17 at 25 and following. See also Macintosh, ‘Why the Environment Protection and Biodiversity Conservation Act’s Referral, Assessment and Approval Process is Failing to Achieve its Environmental Objectives’ (2004) 21 EPLJ 288 at 303 suggesting that this approach may be unlawful. 77. Nelson and Sharman, note 76 above, at 26. 78. Sections 19 and 197. The taking and so on of a species or community that is not otherwise authorised, but is not an offence, must be notified to the secretary: s 199. 79. Sections 200 and 201. 80. Section 207A. 81. Clause 7.09. 82. Section 207B. 83. Section 207C. 84. Section 270(1). Recovery plans may be viewed at . 85. Wildlife conservation plans may be made for such species: Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 285; and see further 14.32.

86. Section 269AA. 87. Section 269A. The plan may need to be made jointly with a state or territory: s 269A(3). The required content of a plan is set out in s 270. 88. Sections 269A(5) and 274–277. 89. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 269A(4) and 270 (importantly, these specify criteria against which the achievement of the objectives is to be measured); reg 7.11. 90. Sections 269A(7) and 277. 91. Section 139(1)(b). 92. Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113. 93. Section 279. 94. Section 280. 95. Section 269. 96. Section 268. 97. On the threat posed by bycatch in the fishing industry, see Evans and Bache, ‘Bycatch of Endangered Species: Jurisdiction and the Management of Fishing Activities’ (1997) 14 EPLJ 468. Threat Abatement Plans are available at . 98. Section 271(1). Threat abatement plans may be viewed at . 99. Section 271. 100. Clause 7.12. 101. Section 270A(2). 102. Section 270A(1). Except for those processes already included in the Endangered Species Protection Act 1992 (Cth) (ESPA) Sch 3, before making a decision, the minister must consult Commonwealth agencies, states and territories that might be affected by or interested in the abatement of the process, and the Scientific Committee: s 270A(3)–(7), (9). 103. Section 270A(8). 104. Section 273(4) and (5). 105. Sections 268, 269, 270B, 271 and 274–284. 106. Section 283A. 107. Per Stone J in Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2007] FCA 1480 at [49] (in this case the effect of greenhouse emissions, as a key threatening process, from a proposed coalmine on a listed ecological community. In the event, the decision-maker was found, however, to have considered such issues). 108. Assistance may be available to enable compliance with the provisions of an order: s 474. 109. Section 464. 110. Sections 464 and 465. 111. Section 464(4). 112. Section 466. 113. Sections 467–469.

114. Section 470(1). 115. Sections 470(2), (3) and 471. 116. Sections 472 and 473. 117. Section 209. The list may be viewed at . 118. Sections 20, 20A, 211–211E, 213, 214 and 496. 119. Sections 212 and 215–222. Cetaceans and listed threatened species are excluded from these provisions: s 210. 120. A specified area in the Australian Whale Sanctuary may be declared to be an important cetacean habitat area: s 228A. The effect of such a declaration appears to be that whale watching will not be permitted in such areas: s 231(aa)(ii). 121. Defined in s 227. 122. Sections 225 and 226. 123. Section 228. 124. Sections 229–244. Outside the outer limits of the sanctuary, however, Australia only has jurisdiction over its own citizens and permanent residents, corporations and vessels and so on: see s 224. An unlawfully taken whale vests in the Commonwealth: s 246. For a case discussing the practical impossibility of legal enforcement against Japanese whaling in Australian Antarctic waters, see the string of cases brought by Humane Society International against Kyodo Senpaku Kaisha Ltd discussed further at 4.27; and commentary by McGrath at (2005) 22 EPLJ 250. See also Pecot, ‘The Conservation of Marine Biological Diversity in Areas Beyond National Jurisdiction’ (2005) 22 EPLJ 459. 125. Section 236. 126. Section 245. 127. Section 231(h). 128. The list may be viewed at . 129. Sections 249–252. 130. Sections 253–265. 131. Sections ss 254–254F. Similar provisions apply to dugongs and turtles that are listed migratory species (ss 211–211F) or listed threatened species (ss 196–196F). 132. Sections 285 and 287(1). 133. Sections 285 and 287–298. 134. Section 299. 135. Section 286. 136. Sections 272 and 288. 137. Section 301A and see also Arcioni, ‘What’s in a Name? The Changing Definition of Weeds in Australia’ (2004) 21 EPLJ 450; Thiriet, ‘In the Spotlight — The Welfare of Introduced Wild Animals in Australia’ (2007) 24 EPLJ 417; response by Saunders and Sharp at (2008) 25 EPLJ 157; and reply by Thiriet at (2008) 25 EPLJ 160. 138. See, for example, Mead v Whisson [2006] SASC 69. 139. Nature Conservation Act 2014 (ACT) s 6. ‘Biodiversity’ is defined in Nature Conservation Act 2014 (ACT) s 19. 140. ‘Native species’ is defined in Nature Conservation Act 2014 (ACT) s 16. ‘Species’ is defined in

Nature Conservation Act 2014 (ACT) ss 15 and 18. 141. Defined in Nature Conservation Act 2014 (ACT) ss 17 and 18. 142. Defined in Nature Conservation Act 2014 (ACT) s 16. 143. ‘Plant’ and ‘native plant’ are defined in ss 13 and 14. 144. Nature Conservation Act 2014 (ACT) s 11. Special protection status is accorded to native species that are listed threatened or migratory species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA); see s 109. ‘Native animal’ is defined in s 12. ‘Threatened native species’ is defined in s 61. 145. Section 10. ‘Nature’ is defined in s 9. 146. Administration is set out in Chapter 2. 147. Chapter 3. 148. Section 48. ‘Conservator guidelines’ indicate how the conservator is to exercise the conservator’s functions under this Act: s 23. 149. A native species is eligible to be included in the restricted trade category in the protected native species list if unrestricted trade in the species is likely to have a negative impact on populations of the species in the wild; s 112(1). 150. A native species is eligible to be included in the rare category in the protected native species list if: (a) it is not a threatened native species; (b) it does not have special protection status; and (c) it is rare in the Australian Capital Territory: s 112(2). 151. A native species is eligible to be included in the data deficient category in the protected native species list if there is insufficient information about the species in the ACT for the species to be eligible to be: (a) a threatened native species; or (b) included in any other category in the protected native species list: s 112(3). 152. Section 111. At time of writing no other categories have been prescribed. Criteria for inclusion on the list of protected native species must be developed by the minister, based on scientific matters and having regard to conservation of the species: s 113. 153. Section 109. The conservator may make a native species conservation plan for a species that has special protection status: s 117(a). The conservator must make an action plan for regular migratory species: s 101. ‘Regular migratory species’ means a listed migratory species that regularly occurs in the ACT: s 98. 154. Section 117; Pt 5.3. If a native species conservation plan is in force for a native species on stated land, the conservator, and lessee or custodian of the land, must take reasonable steps to implement the plan: s 124. 155. Section 130; and see also Bannister v Bowen (1985) 65 ACTR 3. 156. Pt 6.1. 157. See s 262, Ch 11. 158. See Ch 7. A controlled native species may be so declared if that species is having an unacceptable impact on an environmental, social or economic asset: s 157. 159. A ‘management agreement’ means an agreement between the conservator and an agency, in relation to public land or unleased territory land, that sets out standards and conditions for avoiding or minimising any conflict with the management objectives for the land which may arise

as a result of the agency’s activities; and does not conflict with a development approval given under the Planning and Development Act 2007 (ACT): s 310, Ch 12 160. Section 153. An activities declaration may be made if the Conservator reasonably believes that a certain activity, if carried out in a reserve, may have a negative impact on the reserve. The activity (‘restricted’ or ‘prohibited’ activity) may then either be prohibited or carried out only if stated directions or requirements are complied with: ss 256–258. 161. Section 331; Pt 14.1. 162. Domestic Animals Act 2000 (ACT) s 81. 163. Section 5. 164. Section 5. 165. Section 5. 166. On the use of freedom of information legislation to gain access to details of licences, see Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133. 167. Section 98; and see Garrett on behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492 (fine of $9000 for causing the death of approximately 27 welcome swallows and injuring a further 51). The maximum fine for this offence was a paltry $11,000 plus $1100 for each animal harmed and imprisonment for up to six months. See also Morris v Department of Environment and Climate Change [2008] NSWLEC 309 (aggregate fine of $10,000 imposed by a magistrate for unlawful taking of 128 kangaroos not considered excessive); Plath v Chaffey [2009] NSWLEC 196 (offender sentenced to 80 hours of community service for taking eggs of protected species). And see Smith, ‘What Price a Wedge-tailed Eagle? An Examination of Penalties Imposed for Harming Protected Species’ (2004) 21 EPLJ 445. 168. Section 100. 169. Section 5. 170. Forestry Commission of New South Wales v Corkhill (1991) 73 LGRA 247. 171. National Parks and Wildlife Act 1974 (NSW) (NPWA) s 99(3); and see Director-General of National Parks and Wildlife Service v Barry John Mobbs [1996] NSWLEC 225. 172. Endangered Fauna (Interim Protection) Act 1991 (NSW). 173. Sections 101 and 106. And see Simpson v Office of Environment and Heritage [2014] NSWLEC 34 (fine of $6000 for an offence of possessing a protected reptile against a maximum penalty of $11,000; fines of $5000 for importing/exporting protected reptiles against a maximum of $11,000). 174. Section 102. 175. Section 103. 176. For example, ss 45, 56 and 70. 177. Section 112. 178. ‘Pest’ is defined in s 15. Regulations may declare ‘pests’ (there are no regulations at time of writing). 179. Section 117. 180. Section 118. 181. For example, ss 57, 58I and 71. 182. Section 131. 183. Section 132. 184. Section 115A. 185. Forestry Act 2012 (NSW) s 44.

186. Forestry Act 2012 (NSW) s 59(2)(b). 187. Sections 91AA–91FF. 188. Sections 91A–91I. 189. Territory Parks and Wildlife Conservation Act 1976 (NT) ss 28 and 29; Territory Parks and Wildlife Conservation Regulations cl 2. 190. Section 9. 191. Territory Parks and Wildlife Conservation Act 1976 (NT) s 43; Territory Parks and Wildlife Conservation Regulations cl 3. 192. Sections 44–46. 193. Sections 55–63 and 66. 194. Section 67. 195. Section 31. 196. Sections 47–51 and 67A. 197. Sections 52–54 and 67B; Territory Parks and Wildlife Conservation Regulations Sch 1. 198. Sections 25F and 25G. 199. Nature Conservation Act 1992 (Qld) Dictionary. 200. Section 71. 201. Section 82. 202. Section 81. 203. Sections 76–80. 204. Dictionary. 205. Nature includes ecosystems and their constituent parts, natural dynamic processes, natural resources, and characteristics of places that contribute to biological diversity and integrity or their intrinsic or scientific value: s 8. 206. Section 5(d), (e). 207. Declared management intent for all categories of wildlife are set out in the Nature Conservation (Wildlife) Regulation 2006 (Qld). 208. Section 72. See, for example, Nature Conservation (Protected Plants) Conservation Plan 2000; Nature Conservation (Koala) Conservation Plan 2006; Nature Conservation (Estuarine Crocodile) Conservation Plan 2007; Nature Conservation (Whales and Dolphins) Conservation Plan 2000. 209. Sections 73–75. 210. Section 72(3). 211. Paradoxically, and in contrast to the Commonwealth, the cane toad is not a declared pest; see Martin, ‘The Law and Economics of Feral Extermination: Legal and Economic Answers to Eradicating the Cane Toad’ (2015) 32 EPLJ 115. 212. Section 73. 213. Sections 112–116 and 118–126. 214. Section 84. 215. Sections 83 and 85. 216. Section 88. This applies despite the fact that the only reason the animal survives is because of the care given to it by an unlicensed person: see Candy v Thompson [2005] QCA 382. See also Candy v

Christensen [2007] QCA 114. This provision applies to private freehold land and is sufficient to override any common law rights in respect of the taking of animals whether they were domestic or wild: Fanna v Leavy; Rue v Leavy [2005] QCA 378. In Rue & Fanna v Leavy [2005] QDC 110, the defendants had been fined $12,000 each, in lieu of two months’ imprisonment, for taking protected birds in the context of fish farming activities. 217. Section 89. Offences may be met with regrowth and replanting orders that include conditions about maintenance to specified heights and density: see Wall v Doyle [2008] QPEC 23. 218. Classes of licences, permits and authorities for taking, keeping and using protected animals and plants, and detailed management requirements are set out in the Nature Conservation (Wildlife Management) Regulation 2006 (Qld). 219. See Nature Conservation (Protected Plants) Conservation Plan 2000; and Krajniw v Brisbane City Council [2010] QPEC 33. 220. Section 62. 221. Nature Conservation Act 1992 (Qld) Dictionary. 222. It is no defence to claim that the wildlife was taken in the pursuit of other lawful activities not directed towards the taking of that wildlife: Booth v Frippery Pty Ltd [2007] QPEC 99. 223. Nature Conservation Act 1992 (Qld) Dictionary. 224. Nature Conservation Act 1992 (Qld) Dictionary. 225. This offence only applies to protected areas and areas identified under a conservation plan as including critical habitat or areas of major interest. 226. Note the criticisms raised by McDonald and Buckley in, ‘The Taking Offence and Lawful Activity Defence under the Nature Conservation Act 1992 (Qld): When is Habitat Disturbance a Taking?’ (1993) 10 EPLJ 198 at 200. 227. Section 13. 228. Nature Conservation Act 1992 (Qld) Dictionary. 229. Section 97. 230. Section 169. The conservation value ‘is an expression in monetary terms of the State’s conservation concern for the wildlife’: s 95(2). The conservation value is also payable on the lawful taking and so on of protected wildlife: s 95. 231. Section 173D; effectively ‘any person’ because the person does not have to show that any rights of that person have been infringed: s 173D(2). And see, for example, Booth v Yardley [2006] QPEC 116; Booth v Frippery Pty Ltd [2007] QPEC 99. 232. Section 173F. 233. See Booth v Yardley [2006] QPEC 116. 234. Sections 168 and 173I; and see Wall v Doyle [2008] QPEC 23. 235. Section 5. 236. Section 5. Schedules 7–9 are also restricted to mammals, birds, reptiles, amphibians and plants. 237. Section 75A. 238. Sections 51 and 53. Applicants for permits may ask the South Australian National Parks and Wildlife Council to review the minister’s decision and make recommendations to the minister: s 53A. 239. Section 68. 240. Sections 58–60. Classes of permit that describe the various entitlements are set out in the National

Parks and Wildlife (Wildlife) Regulations 2001 (SA) Sch 3. One only of certain prescribed species may be kept without contravening this provision; these species are listed in Sch 6. 241. Section 58(4). For prescribed species, see National Parks and Wildlife (Wildlife) Regulations 2001 (SA) Sch 7. 242. Natural Resources Management Act 2004 (SA) s 179; and see Winkworth v McCallum (No 2) [2008] SAERDC 80. 243. Sections 60B–60F. Species available for trial farming may be declared by regulation: s 60BA. 244. Sections 60G and 60J refer to species of kangaroo, though other harvestable species may be declared by regulation. See also National Parks and Wildlife (Kangaroo Harvesting) Regulations 2003 (SA). 245. Sections 60G–60L. 246. Section 52; and see National Parks and Wildlife (Hunting) Regulations 1996 (SA). 247. Section 54. 248. Section 65. 249. Sections 66 and 67. 250. Section 68A; and see National Parks and Wildlife (Hunting) Regulations 1996 (SA). 251. Section 45. 252. Section 72 (2)(b). Aquatic resource means fish or plants: s 3. Protected species are declared by regulation. And see Brennan-Kuss and others v Dietman [2014] SASC 28 (provision only applies to sale or possession of aquatic resources taken in South Australian waters after the species became protected). 253. See Dietman v Feast [2015] SASC 148. 254. Schedules 7–9. 255. Sections 47–49. 256. Section 48. 257. Section 45. 258. Section 3. 259. Schedules 1–7A. 260. Nature Conservation Act 2002 (Tas) s 27. 261. Section 29. Open seasons may be declared for taking partly protected wildlife: s 30. 262. Regulations cll 24 and 40. 263. Regulations cll 35–40. 264. Regulations cll 50–54. 265. Section 32. 266. Section 135. 267. Section 3. 268. Section 3. 269. Section 7A. 270. Sections 86 and 86A. 271. Sections 20, 22–28K and 35. The various types of licences that may be sought are set out in the Wildlife Regulations 2013 (Vic). Activities in state game reserves are governed by the Wildlife (Sate

Game Reserves) Regulations 2014 (Vic). 272. Sections 43, 44, 47, 47A and 58. See also Wildlife (Game) Regulations 2012 (Vic). 273. Section 50. 274. Sections 25A–25F; and see Hoser v The Department of Sustainability and Environment [2012] VCAT 264; [2014] VSCA 206. 275. Sections 45 and 46. 276. Section 47. 277. Section 48(4). 278. Section 47(2). 279. Section 49. 280. Section 48(5). 281. Section 51. 282. See McDonald et al, ‘Legal Protection of Fauna Habitat in Western Australia’ (2003) 20 EPLJ 95. 283. Section 6. 284. Section 6(2). 285. Section 14. 286. Sections 14(2) and 15A. 287. Section 14(2)(ba). 288. Section 15A. Previous to this amendment (the Acts Amendment (Game Birds Protection) Act 1992 (WA)), the Supreme Court held in Re Minister; Ex parte West Australian Field and Game Association Inc (1992) 78 LGERA 81, that in changing government policy on duck shooting from one of declaring a limited open season to total protection, the minister was entitled to act on a policy of absolute protection since this was consistent with the purposes of the Act. The complainants had no legitimate expectation to be consulted arising out of previous practice and the minister had no obligation either to declare an open season or consider whether one should have been allowed. 289. Sections 15, 16 and 16A. Different types of licence are specified in the Wildlife Conservation Regulations 1970 (WA) Pt 2. In relation to an offence of unlawful possession of protected fauna contrary to s 16A(1), the Supreme Court has said that the offence does not depend upon the precise identification of the particular species involved; it was enough for the prosecution to prove that the wildlife (in this case reptiles) were indigenous to Australia. That could be done by proving that they fell into a broader class of reptiles that were indigenous to Australia; that is to say, whatever their precise species, that they are native animals: Simpson v Department of Environment and Conservation [2011] WASC 206. 290. Section 17A. 291. Section 17. 292. But not apparently dead timber; ‘given that the legislature specifically saw fit to include the carcass of animals within the definition of “fauna” but not to expressly include dead plants within the definition of “flora”, it seems clear enough that the legislature did not intend to include dead plants within the definition of “flora”’: Pennings v Vlak [2005] WASC 107 at [59] per Jenkins J. 293. Section 6. 294. Section 6(6). 295. Taking includes unauthorised clearing, burning, picking or grazing; and see WA Developments Pty

Ltd and Western Australian Planning Commission [2008] WASAT 260. 296. Sections 23B and 23C. In Russell v Pennings (2001) 113 LGERA 216, the clearing of a vehicle access track on Crown land was held to constitute a wilful taking contrary to this provision, and the clearing could not be claimed to be an ‘unavoidable incident’ of survey work. 297. Section 23D. 298. Section 23E. 299. Section 23C. 300. Section 23E. 301. Section 23F(2). 302. Section 23F(4), (6). In WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260, the tribunal upheld the validity of a condition imposed on a planning consent for a subdivision that all populations of a rare orchid should be located within one lot. The tribunal indicated that it thought it appropriate to apply the precautionary principle. 303. Section 23F(8). 304. See Bergin, ‘International Law and Indigenous Marine Rights: The Evolving Framework’ (1993) 10 EPLJ 438; Strelein, ‘Indigenous People and Protected Landscapes in Western Australia’ (1993) 10 EPLJ 380; Selnes, ‘Aboriginal Land Rights in Queensland and their Impact on Natural Resources’ (1993) 10 EPLJ 423; Chapman, ‘The Role, Use of and Requirement for Traditional Ecological Knowledge in Bioprospecting and Biobanking Biodiversity Conservation Schemes’ (2008) 25 EPLJ 196. 305. And on the animal welfare issues associated with hunting by both Indigenous and non-Indigenous peoples, see Thiriet, ‘Out of the “Too Hard Basket” — Traditional Hunting and Animal Welfare’ (2007) 24 EPLJ 59. 306. See generally English, ‘Terrestrial Hunting and Gathering by Aboriginal People in New South Wales’ (1997) 14 EPLJ 437. 307. Sections 47 and 48. 308. Section 117(2). 309. Regulations 72–75. 310. Territory Parks and Wildlife Conservation Act 1976 (NT) s 122. 311. Crown Lands Act 1992 (NT) s 37(2); Pastoral Land Act 1992 (NT) s 38(2). 312. Section 73. 313. Section 93. 314. Section 93. 315. Defined in the Aboriginal Land Act 1991 (Qld) s 2.03. 316. Defined in the Torres Strait Islander Land Act 1991 (Qld) s 2.02. 317. Section 93(4). 318. Section 93(2). 319. Section 93(3). 320. Although National Parks (Aboriginal Land) and National Parks (Torres Strait Islander Land) are to be managed as far as practicable in ways that are consistent with traditions and customs, again the primary management principle is that they shall be managed as national parks: see ss 17–19. 321. National Parks and Wildlife Act 1972 (SA) ss 68C–68E.

322. Section 73. 323. Wildlife Act 1950 (Vic) s 28A(1)(e). 324. Section 28G(2)(c). 325. Traditional Owner Settlement Act 2010 (Vic) s 80. 326. Traditional Owner Settlement Act 2010 (Vic) ss 82–90. 327. Section 23. 328. Smith, ‘Skinning Cats, Putting Tigers in Tanks and Bringing Up Baby: A Critique of the Threatened Species Conservation Act 1995 (NSW)’ (1997) 14 EPLJ 17; Kelly, ‘New Mandates for Protecting Threatened Species in New South Wales’ (1996) Local Government Law Journal 78; Mahony, ‘Efficacy of the “Threatening Processes” Provisions in the Threatened Species Conservation Act 1995 (NSW): Bush-rock Removal and the Endangered Broad-headed Snake’ (1997) 14 EPLJ 3; Report of the Joint Select Committee (JSC) Upon the Threatened Species Conservation Act 1995, Parliament of New South Wales, December 1997; Kelly and Prest, ‘Implementation of Threatened Species Law by Local Government in New South Wales’ (2000) 17 EPLJ 584; Mamouney, ‘Should Local Government be Responsible for Biodiversity Management?’ (2000) 17 EPLJ 138; Preston and Adam, ‘Describing and Listing Threatened Ecological Communities under the Threatened Species Conservation Act 1995 (NSW)’ (2004) 21 EPLJ 250 at 372; Riddell, ‘A Crumbling Wall: The Threatened Species Conservation Act 10 Years On’ (2005) 22 EPLJ 446. 329. See Edmonds and Giddings, ‘Guaranteeing the Survival and Evolution of Endangered Species: An Analysis of the Flora and Fauna Guarantee Act (Vic)’ (1992) 9 EPLJ 421. See also Young, ‘At the Crossroads: Protective Mechanisms for Victoria’s Biodiversity’ (1998) 15 EPLJ 190. 330. Section 4. 331. Section 4(1)(f), (g). 332. Section 4(2). 333. Section 3 (‘fauna’, ‘flora’). 334. Section 5, Sch 1 (for example, human disease organisms). 335. Section 10. A potentially threatening process is eligible for listing if, in the absence of appropriate management, it poses or has the potential to pose a significant threat to the survival or evolutionary development of a range of flora or fauna: s 11(3). 336. Sections 52 and 53. The provisions of this Act prevail over the operation of the Fisheries Act 1995 (Vic). 337. Section 11(1). For lists, see Schs 1 and 2. 338. Section 12. Information that must be provided with a nomination is set out in the Flora and Fauna Guarantee Regulations 2001 (Vic) Sch 2. 339. Section 11(3). 340. Section 17. 341. Section 19. And on the application of action statements to management of commercial native public forests, see Environment East Gippsland Inc v VicForests [2010] VSC 335; MyEnvironment Inc v VicForests [2012] VSC 91. 342. Section 20. 343. Sections 21–23. 344. Section 26. 345. Section 32.

346. Sections 35 and 36. 347. Section 40. 348. Section 39. 349. Sections 41–41B. 350. Section 43. 351. Section 44. 352. Sections 61 and 62; an award of compensation must take account of the cost of any restoration work required to be carried out. 353. For the position in Western Australia, which has no specifically targeted legislation, see 14.61. 354. Threatened Species Conservation Act 1995 (NSW) s 18; Fisheries Management Act 1994 (NSW) s 220H; Threatened Species Protection Act 1995 (Tas) s 16; National Parks and Wildlife Act 1972 (SA) Schs 7–9; Nature Conservation Act 2014 (ACT) s 81. 355. Threatened Species Conservation Act 1995 (NSW) ss 10–14; Threatened Species Conservation Regulations 2010 (NSW) Pt 2; Fisheries Management Act 1994 (NSW) s 220F; Threatened Species Protection Act 1995 (Tas) s 15; Nature Conservation Act 2014 (ACT) ss 64 and 70; Nature Conservation Act 1992 (Qld) ss 76–79; Nature Conservation (Wildlife) Regulation 2006 (Qld) Schs 1–3 and 5. 356. Threatened Species Conservation Act 1995 (NSW) s 17(1). 357. Fisheries Management Act 1994 (NSW) s 220G; Threatened Species Protection Act 1995 (Tas) ss 13–22; Nature Conservation Act 2014 (ACT) s 86; Territory Parks and Wildlife Conservation Act s 30. 358. Threatened Species Conservation Act 1995 (NSW) s 56; Fisheries Management Act 1994 (NSW) s 220ZI; Threatened Species Protection Act 1995 (Tas) s 25; Nature Conservation Act 2014 (ACT) Pt 4.5 (‘action plans’); Nature Conservation (Wildlife) Regulation 2006 (Qld) regs 14 and 19 (endangered and vulnerable wildlife) ‘to the extent practicable’. In NSW the plan must be approved by the Minister; Threatened Species Conservation Act 1995 (NSW) s 65; Fisheries Management Act 1994 (NSW) s 220ZP. 359. Threatened Species Conservation Act 1995 (NSW) s 37; Fisheries Management Act 1994 (NSW) s 220P; Nature Conservation Act 1992 (Qld) s 13. 360. Threatened Species Conservation Act 1995 (NSW) s 38; Fisheries Management Act 1994 (NSW) s 220Q; Threatened Species Protection Act 1995 (Tas) s 23; Territory Parks and Wildlife Conservation Act ss 37–42 (essential habitat); Nature Conservation (Wildlife) Regulation 2006 (Qld) regs 14(i), 19(i) and 29(k); Nature Conservation Act 2014 (ACT) ss 100B and 101(3)(d), Dictionary (‘relevant species’). 361. Threatened Species Conservation Act 1995 (NSW) s 74; Fisheries Management Act 1994 (NSW) s 220ZJ; Threatened Species Protection Act 1995 (Tas) s 27; Nature Conservation Act 2014 (ACT) s 100(a)(B)(iii). 362. Threatened Species Conservation Act 1995 (NSW) ss 90A–90E (priorities action statement). 363. Threatened Species Conservation Act 1995 (NSW) Schs 1–3; Fisheries Management Act 1994 (NSW) s 220D Schs 4–6; Threatened Species Protection Act 1995 (Tas) Schs 3–5. 364. Wildlife Conservation Act 1950 (WA) s 23F; Nature Conservation Act 2014 (ACT) s 91 (‘notifiable instrument’). 365. Territory Parks and Wildlife Conservation Act 2006 (NT) s 26A. 366. Threatened Species Conservation Act 1995 (NSW) ss 26–36; Fisheries Management Act 1994 (NSW) s 220N.

367. Threatened Species Conservation Act 1995 (NSW) ss 69 and 86; Fisheries Management Act 1994 (NSW) ss 220ZS and 220ZT; Nature Conservation Act 2014 (ACT) s 107. 368. Threatened Species Conservation Act 1995 (NSW) s 50; Fisheries Management Act 1994 (NSW) s 220V. 369. Nature Conservation Act 1992 (Qld) s 123. 370. Threatened Species Conservation Act 1995 (NSW) ss 69–73 and 86–90; Fisheries Management Act 1994 (NSW) ss 220ZU and 220ZV. 371. For example, Nature Conservation Act 2014 (ACT) ss 317 and 318; Planning and Development Act 2007 (ACT) ss 147A–149. And see Kelly and Prest, ‘Implementation of Threatened Species Law by Local Government in New South Wales’ (2000) 17 EPLJ 584. 372. See generally Chapter 10. And on SISs in New South Wales, see 14.94. 373. Threatened Species Conservation Act 1995 (NSW) s 97; Fisheries Management Act 1994 (NSW) ss 221A and 221IE; Nature Conservation Act 2014 (ACT) Pt 11.2. 374. Threatened Species Conservation Act 1995 (NSW) s 94; Fisheries Management Act 1994 (NSW) s 220ZZ; DECC, Threatened species assessment guidelines: The assessment of significance (2007). 375. Animal Liberation Act v Conservator Of Flora And Fauna (Administrative Review) [2014] ACAT 35. 376. National Parks and Wildlife Act 1974 (NSW) (NPWA) ss 118A–118E. The defence contained in s 118D that the act was essential for carrying out development permitted by a development consent issued under the Environmental Planning and Assessment Act 1979 (NSW) (EPAA), will not be available where the activity was carried out in contravention of the conditions of that consent: Donnelly v Solomon Islands Mining NL (2002) 121 LGERA 264. Neither will it be available where there is non-compliance with the requirements for the issue of development consent: see Garrett v Freeman (No 4) [2007] NSWLEC 389 (construction of road through habitat of endangered species without consideration ‘to the fullest extent’ of environmental impacts). 377. For example, National Parks and Wildlife Act 1974 (NSW) (NPWA) s 118A; Nature Conservation Act 1992 (Qld) ss 90 and 97; Fisheries Management Act 1994 (NSW) ss 220ZA–220ZG. Bentley v BGP Properties Pty Ltd (2005) 139 LGERA 449; Garrett v Langmead [2006] NSWLEC 627; Bentley v Gordon [2005] NSWLEC 695. For a useful survey of principles of sentencing, see Chief Executive Office of Environment and Heritage v Kyluk Pty Ltd (No 3) [2012] NSWLEC 56. Where an element of the offence is the knowledge of the defendant, then this may present more problems for the prosecution than relying on an offence of strict liability; for example, Fisheries Management Act 1994 (NSW) s 220ZD, even where a presumption of knowledge is expressed to apply in certain circumstances: see Director-General, New South Wales Department of Industry and Investment v Mato Investments Pty Ltd (No 4) [2011] NSWLEC 227. 378. Nature Conservation Act 2014 (ACT) ss 331 and 332. Administrative orders may be issued under principles discussed at 20.4. In Holmes v Director General of the Department of Infrastructure Planning and Natural Resources (2005) 139 LGERA 102, a notice for remedial work was declared unlawful because it was couched in prohibitive terms; the legislation contemplated only that work could be required to be carried out in positive terms. 379. For example, Nature Conservation Act 2014 (ACT) s 336. And see Al Oshlack v Iron Gates Pty Ltd [1997] NSWLEC 89; Donnelly v Solomon Islands Mining NL (2002) 121 LGERA 264; DirectorGeneral, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118. 380. See also Plath v Fletcher [2007] NSWLEC 596 (fine of $46,000 for picking 32 trees that were part of an endangered ecological community); Department of Environment and Climate Change v Sommerville; Department of Environment and Climate Change v Ianna [2009] NSWLEC 194; Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 (early plea of guilty coupled with agreement for remediation entitled the offender to a 33 per

cent discount on sentence). 381. See also Garrett v Freeman (No 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1. 382. See Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118. 383. Threatened Species Conservation Act 1995 (NSW) ss 114–120; Fisheries Management Act 1994 (NSW) ss 22I–22U; Threatened Species Protection Act 1995 (Tas) ss 32–43; Nature Conservation Act 1992 (Qld) ss 101–109. 384. Smith, note 328 above, at 19; Preston and Adam, note 328 above. 385. For a fuller explanation, see Preston and Adam, note 328 above, at 256 and following. See also Murlan Consulting Pty Ltd v Ku-ring-gai Council [2007] NSWLEC 374. 386. See Carstens v Pittwater Council (1999) 111 LGERA 1 (34 out of 44 characteristic species present on the land was enough to constitute an ecological community); Commonwealth v Randwick City Council [2001] NSWLEC 79 (seven out of 46 characteristic species not enough); Plumb v Penrith City Council [2002] NSWLEC 223; Hornsby Shire Council v Vitone Pty Ltd [2003] NSWLEC 272 (modifications to and degradation of the site reducing the number of characteristic species to about 50 per cent, plus possibility of further domination by exotics, led the court to conclude no ecological community was present). 387. Motorplex (Australia) Pty Ltd v Port Stephens Council [2007] NSWLEC 74. 388. See, for example, Bow v Blacktown City Council [2008] NSWLEC 21. See also Taylor and Ives, ‘Legislative and Policy Challenges for the Protection of Biodiversity and Bushland Habitats: An Evidence-based Approach’ (2009) 26 EPLJ 35 at 40 and following. 389. Taylor and Ives, note 388 above, at 42. 390. Section 220O. 391. Section 21(3). The Natural Resources Commission and the minister may also give advice to the Scientific Committee concerning priorities for the consideration of nominations, taking into account statewide issues of concern in biodiversity conservation: s 21(1A). 392. Sections 27 and 28. 393. Preston and Adam, note 328 above, at 383 and following. 394. Mahony, note 414 below, at 10, 18. 395. TSCA s 22. 396. See Martin, ‘The Law and Economics of Feral Extermination: Legal and Economic Answers to Eradicating the Cane Toad’ (2015) 32 EPLJ 115. 397. Threatened Species Conservation Act 1995 (NSW) Sch 3. 398. See 14.90. 399. Smith, ‘Skinning Cats, Putting Tigers in Tanks and Bringing up Baby: A Critique of the Threatened Species Conservation Act 1995 (NSW)’ (1997) 14 EPLJ 17 at 26. 400. Smith, note 399 above, at 20. Mahony, ‘Efficacy of the “Threatening Processes” Provisions in the Threatened Species Conservation Act 1995 (NSW)’ (1997) 14 EPLJ 3 at 4, also notes that the lack of definition of critical habitat means ‘it is not clear therefore whether (critical habitat) is the area required for bare survival or should allow for the flourishing and evolution of the species’. 401. Smith, note 399 above, at 29. 402. Smith, note 399 above, at 26. Smith notes that the US legislation does include such a provision. 403. Threatened Species Conservation Act 1995 (NSW) s 47.

404. Threatened Species Conservation Act 1995 (NSW) ss 40 and 44. 405. Threatened Species Conservation Act 1995 (NSW) s 44. 406. Sections 40 and 44. 407. See . The process for publication of a declaration is described in s 48. 408. Nature Conservation Act 1992 (Qld) s 73. The concept of ‘critical habitat’ is not, however, to be restricted only to habitat that is registered: see Traspunt No 4 Pty Ltd v Moreton Bay Regional Council [2012] QPEC 70. 409. Nature Conservation Act 1992 (Qld) s 103. A ‘threatening process’ is defined in s 12. 410. Threatened Species Conservation Act 1995 (NSW) ss 65 and 83; Fisheries Management Act 1994 (NSW) s 220ZP; Threatened Species Protection Act 1995 (Tas) s 25. 411. Threatened Species Conservation Act 1995 (NSW) s 66. 412. Mahony, ‘Efficacy of the “Threatening Processes” Provisions in the Threatened Species Conservation Act 1995 (NSW)’ (1997) 14 EPLJ 3 at 8, 9. 413. Mahony, note 412 above, at 10. Though the existence of such plans would be expected to influence decision-making on proposals for development: see, for example, Northwest Residential Pty Ltd v Minister for Planning [2009] NSWLEC 1065; Western Sydney Conservation Alliance v Penrith City Council [2011] NSWLEC 244. 414. Threatened Species Conservation Act 1995 (NSW) ss 90A–90E. 415. Section 90A. 416. See . 417. See Pt 5. 418. For further discussion in relation to development control and environmental assessment (EA) processes in relation to threatened species, including requirements for consultation and concurrence, see Chapters 10–11. 419. See Robinson, ‘Strategic Planning for Biodiversity in NSW’ (2009) 26 EPLJ 213 at 214 and following; Webb, ‘Victoria’s Native Vegetation Framework — Achieving “Net Gain” at the Urban Growth Boundary?’ (2009) 26 EPLJ 236 at 245. See also Farrier et al, ‘Biodiversity Offsets and Native Vegetation Clearance in New South Wales: The Rural/Urban Divide in Pursuit of Ecologically Sustainable Development’ (2007) 24 EPLJ 427 at 432 and following point to the lack of uniformity and consistency between Local Environmental Plans (LEPs), and the ‘inherent bias’, encouraged by zoning, in favour of development in urban areas regardless of whether or not development is ecologically sustainable. 420. Robinson, note 419, at 215 and following; Farrier et al, note 419 at 435. 421. Section 5A. 422. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 78A(8); Fisheries Management Act 1994 (NSW) ss 221J–221N; Plantations and Reafforestation Act 1999 (NSW) s 15. 423. See also Gales Holdings Pty Ltd v Tweed Shire Council [2006] NSWLEC 212; Cranky Rock Road Action Group v Cowra Shire Council (2006) 150 LGERA 81 (CA); RAID Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; Corowa v Geographe Point Pty Ltd (2007) 154 LGERA 117. And on jurisdictional fact, see further 22.45. 424. Hornsby Shire Council v Vitone Developments Pty Ltd (2003) 132 LGERA 122. In Central West Environment Council v Orange City Council (2003) 128 LGERA 169, it was also pointed out that the mere possibility rather than likelihood of a significant effect was not enough to trigger the

requirement to produce a SIS; but query now the possible application of the precautionary principle: see 8.54 and following. 425. Drummoyne Municipal Council v Maritime Service Board (1991) 72 LGRA 186; Byron Shire Businesses for the Future Inc v Byron Council (1994) 84 LGERA 434; Smyth v Nambucca Shire Council (1999) 105 LGERA 65. See also Kelly and Prest, ‘Implementation of Threatened Species Law by Local Government in New South Wales’ (2000) 17 EPLJ 584 at 597. 426. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 79B, 112C and 112D. 427. Threatened Species Conservation Act 1995 (NSW) s 126N. 428. See Connolly and Fallding, ‘Biocertification of Local Environmental Plans — Promise and Reality’ (2009) 26 EPLJ 128 at 130–1. 429. Environmental Planning and Assessment Act (NSW) (EPAA) s 78A(8); and see Chapter 10. 430. Environmental Planning and Assessment Regulation 2000 (NSW) cl 8N. 431. See Farrier et al, ‘Biodiversity Offsets and Native Vegetation Clearance in New South Wales’ (2007) 24 EPLJ 427 at 437. 432. See Farrier et al, note 431 above, at 436. 433. Sections 126B–126N. 434. Certification has to date been bestowed only on the State Environmental Planning Policy (Sydney Region Growth Centres) 2006: see . Offsetting was a major plank for the grant of biodiversity certification: see Robinson, note 419 above, at 220. See also Farrier et al, note 431 above, at 446, on the draft Growth Centres Conservation Plan, expressing doubts that it could improve or maintain biodiversity values in the face of significant scientific and economic uncertainty. The Wagga Wagga LEP has also been submitted for biocertification. 435. Catchment Management Authorities Act 2003 (NSW) and the Natural Resources Commission Act 2003 (NSW) ss 126B and 126C. Certification has been granted: see New South Wales Government Gazette No 142 of 25 November 2005 p 9809; and No 97 Special Supplement of 1 August 2007, p 5338 (private native forestry). 436. Sections 126D and 126I. 437. See Kerfoot Developments Pty Ltd v Albury City Council [2011] NSWLEC 154; see also Trustees of the Sisters of the Good Samaritan v Warringah Council [2011] NSWLEC 1181. 438. See also Robinson, note 419 above, at 225 and following. 439. National Parks and Wildlife Act 1974 (NSW) (NPWA) ss 118A(3)(b) and 118D(b)(i); and see Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121. 440. See 8.54 and following; and also WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260. 441. Providence Projects Pty Ltd v Gosford City Council (2006) 147 LGERA 274. See also Northwest Residential Pty Ltd v Minister for Planning [2009] NSWLEC 1065 (cautious approach to retention of trees comprising koala habitat). 442. See also New South Wales Land and Housing Corp v Campbelltown City Council (2002) 126 LGERA 348; Providence Projects Pty Ltd v Gosford City Council (2006) 147 LGERA 274. And note the caution expressed in Thornton v Adelaide Hills Council (2006) 151 LGERA 1 to the use of scientific modelling to predict environmental impacts. 443. See, for example, Roach v Pittwater Council [2007] NSWLEC 607. 444. See, for example, Gales Holdings Pty Ltd v Tweed Shire Council [2008] NSWLEC 209. In Manly Council v Horizon Habitats Pty Limited [2015] NSWLEC 15 the defendant was fined $40,000 by the

NSW Land and Environment Court after breaching a development consent that prohibited work in the habitat of the endangered Little Penguin. 445. Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173. 446. Hockitt Pastoral Co Pty Ltd v Great Lakes Shire Council [2007] NSWLEC 514. 447. For example, Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60; Gerroa Environmental Protection Society Inc v Minister for Planning [2008] NSWLEC 173. 448. For example, Gerroa Environmental Protection Society Inc v Minister for Planning [2008] NSWLEC 173.

[page 611]

PART E Environmental Management: Protecting Natural Assets and Environmental Values Overview Pt E.1 This part of the book considers how the concepts and principles discussed in the preceding parts feed into environmental laws that govern the management of natural resources, particularly water, fisheries, forests, mining and petroleum, soils and coastal assets. This part also looks at the management of pollution, waste and contaminated sites and addresses the challenges created by climate change and the need to reassess how we produce and use energy. Many proposals for the use and development of natural resources will go through the planning processes described in Part C. This part of the book adds value to such processes by concentrating upon the additional, and often integrated, regulatory controls that apply to particular resources and particular types of impact.

[page 613]

Chapter 15 Pollution Control There are two parts to this chapter. Part A: Pollution from land-based sources; Part B: Pollution from marine-based sources, which are subject to international obligations.1

PART A: POLLUTION FROM LAND-BASED SOURCES Introduction 15.1 This part is about the way in which regulatory authorities control land-based sources of pollution. Pollution from marine-based sources is dealt with in Part B. Day-to-day management of land-based pollution is very much a state and local government responsibility. The Commonwealth assists by using its financial powers to encourage appropriate policy implementation,2 and by coordinating the development of national policies for some pollutants and activities. It also has direct legal responsibility for its international obligations in relation to both marine and land-based sources3 of marine pollution, import and export of hazardous wastes, ozone-depleting substances and other hazardous chemicals, and greenhouse gases. However, management is often, in any case, delegated to the states, which have established infrastructure to implement the necessary controls. The Commonwealth is really only actively involved in managing pollution generated by its own authorities in relation to its own land and activities, such as airports, defence establishments and naval vessels; controlling imports and exports of wastes and hazardous substances; and addressing measures for reducing carbon pollution and generating fiscal incentives for clean energy generation and demand management. Waste management is discussed further in Chapter 16. The apparent, though questionable, ability of the Commonwealth to pollute neighbouring states without being held legally accountable, for example, through incidents involving Commonwealth dockyards or leakage from

contaminated sites, has been a source of much frustration for the states; this has been discussed at 5.46. [page 614]

National policies for management of pollution 15.2 In 1992, the Commonwealth, state and territory governments, as well as local government, signed an accord detailing their agreed approach to the introduction and implementation of major environmental policies. The circumstances surrounding the negotiation of this accord, known as the InterGovernmental Agreement on the Environment (IGAE), were discussed at 5.54. The IGAE sought to establish a process by which Commonwealth, state and local governments could work together in the initiation and implementation of national approaches to environmental protection. Two important initiatives resulting from the IGAE were the establishment of a National Environment Protection Council and the introduction of National Environment Protection Measures.

National Environment Protection Council (Environment Protection and Heritage Council) 15.3 To facilitate a more uniform approach to pollution control throughout Australia, the IGAE proposed the establishment of a new ministerial council to be known as the National Environment Protection Council (NEPC). In keeping with the philosophy of the IGAE, it was envisaged that the new body would play a cooperative rather than a supranational role. The National Environment Protection Council Act 1994 (Cth) (NEPC Act), was passed to facilitate the establishment of the NEPC.4 Complementary legislation was enacted by all states.5 Western Australia withdrew from the Agreement in 1994, but has since decided to renew its participation, with the result that all jurisdictions are represented on the council. The Act is designed to ensure that equivalent environment protection is enjoyed throughout Australia. It seeks to prevent ‘forum shopping’ by

industry by eliminating jurisdictional variations in environment protection measures. The main function of the NEPC is to produce National Environment Protection Measures (NEPMs). [page 615]

National Environment Protection Measures 15.4 The NEPC is responsible for formulating NEPMs.6 NEPMs may take the form of standards, goals, guidelines or protocols.7 According to the IGAE,8 standards are mandatory while guidelines, goals and protocols are not. However, this aspect is not specifically dealt with in the legislation. Consistent with the IGAE, NEPMs can only be made in relation to specific matters. These are: ambient air quality; ambient marine, estuarine and fresh water quality; the protection of amenity in relation to noise (but only if differences in environmental requirements relating to noise would have an adverse effect on national markets for goods and services); general guidelines for the assessment of site contamination; environmental impacts associated with hazardous wastes; the reuse and recycling of used materials; and motor vehicle noise and emissions.9 15.5 It is clear that the council’s jurisdiction is confined to ‘ambient’ measures. This means that the council has no responsibility for regulating ‘point-source’ pollution. Consequently, it will have no direct regulatory control over industry or individuals. Setting appropriate standards will be left to state governments. This may result in divergent standards among the states. 15.6 The council must give advance notice of its intention to make a draft NEPM.10 Draft measures and an impact statement must then be prepared and exhibited for [page 616] public comment.11 The proposed measures must take into account a range of factors, including the impact statement and submissions received on the

draft.12 Promulgation of a NEPM requires a two-thirds majority of council members.13 The final measure must be tabled in the Commonwealth parliament and can be disallowed by either House.14 The following NEPMs have so far been agreed upon:15 (1) National Environment Protection (Ambient Air Quality) Measure; (2) National Environment Protection (Assessment of Site Contamination) Measure; (3) National Environment Protection (Movement of Controlled Waste between States and Territories) Measure; (4) National Environment Protection (National Pollutant Inventory) Measure; (5) National Environment Protection (Air Toxics) Measure; (6) National Environment Protection (Diesel Vehicle Emissions) Measure; and (7) National Environment Protection (Used Packaging Materials) Measure.

Ambient air quality16 15.7 The goal of this measure is expressed to be to achieve specified ambient standards within 10 years, for six particular pollutants: carbon monoxide; nitrogen dioxide; photochemical oxidants (as ozone); sulfur dioxide; lead; and particles. The measure establishes monitoring and reporting protocols for assessing performance and compliance. In April 2014, ministers signalled their intention to vary this NEPM to establish a more stringent reporting standard for particle pollution (PM2.5 and PM10).17

Assessment of site contamination18 15.8 The object of this measure is to establish a nationally consistent

approach to the assessment of site contamination. The purpose of site assessment is to determine [page 617] whether site contamination poses an actual or potential risk to human health and the environment, either on or off the site, of sufficient magnitude to warrant remediation appropriate to the current or proposed land use.19 Recommended processes for assessment are detailed in the measure.

Movement of controlled waste between states and territories20 15.9 This measure ensures that controlled wastes that are to be transported between states and territories are properly identified, transported and handled in ways that are consistent with environmentally sound practices. Controlled wastes are defined in the measure as having certain constituents and characteristics.21 This NEPM provides a national framework for developing and integrating: (a) tracking systems that provide information to assist agencies and emergency services, and ensure that controlled wastes are directed to and reach appropriate facilities; (b) prior notification systems that provide participating states and territories with access to information, to assess the appropriateness of proposed movements of controlled wastes in terms of transportation and a facility selection process; and (c) the licensing and regulation of generators, transporters and facilities so that tracking and notification functions are compatible with participating state and territory requirements.22

The National Pollutant Inventory23 15.10 The National Pollutant Inventory (NPI) requires industry to report details of discharges of initially 36 and now 93 toxic substances that are emitted into the environment. This information is then made available to the public as part of a ‘Community Right to Know’ program. The inventory does the following: identifies the reporting list of substances; outlines the selection criteria for recommending amendments to the reporting list;

identifies substances and thresholds prescribed for reporting purposes; states the desired environmental outcomes of the measure; draws up the protocols for furnishing information; and suggests guidelines, for example, for amending the reporting list, confidentiality, enforcement and access by the public. [page 618] The purpose of the database is to: (a) provide information to enhance and facilitate policy formulation and decision-making for environmental planning and management; (b) provide publicly accessible and available information, on a geographic basis, about specified emissions to the environment, including those of a hazardous nature or involving significant impact; and (c) promote and assist with the facilitation of waste minimisation and cleaner production programs for industry, government and the community.24 The scheme of the measure is that industrial facilities using more than a specified amount of the chemicals listed on the NPI reporting list are required to estimate and report emissions of these substances annually. Facilities are not to be required to report their emissions for the NPI until a handbook25 has been prepared that relates to the sector in which they work. Over 3000 facilities currently report NPI emissions. Government will estimate emissions from facilities using less than the specified amount of the listed chemicals. Government will also estimate emissions arising from everyday activities, such as emissions from motor vehicles and lawn mowers.

Diesel vehicle emissions26 15.11 The purpose of this measure is to facilitate compliance with inservice emissions standards for diesel vehicles developed in conjunction with the National Road Transport Commission.

Air toxics27 15.12 The purpose of this measure is to provide a framework for monitoring, assessing and reporting on certain hazardous compounds that include:

volatile and semi-volatile organic compounds; polycyclic aromatic hydrocarbons; heavy metals; and aldehydes. Like other NEPMs, the measure does not directly regulate emissions, but concentrates on analysis of data obtained from ‘hot-spots’ where cumulative impacts from different sources may give rise to elevated levels of these compounds. [page 619]

Used packaging materials 15.13 The goal of this measure is to reduce environmental degradation arising from the disposal of used packaging and to conserve virgin materials through the encouragement of reuse and recycling of used packaging materials. The NEPM builds on the voluntary National Packaging Covenant, which is an agreement entered into by government and industry participants in the packaging chain. It is based on the principles of product stewardship and shared responsibility. Product stewardship imposes an obligation on all those who benefit from production to assume a share of responsibility for a product over its life cycle. The covenant, which covers consumer packaging and household paper, commits the signatories to continuous improvement in the recovery and reprocessing of used packaging materials. As the covenant includes a voluntary system of industry self-regulation, an important feature of the NEPM is to ensure that industry signatories do not suffer any competitive disadvantage as a result of fulfilling their commitments under the covenant. Each participating jurisdiction is to introduce statutory measures to ensure this.28 Each jurisdiction must also introduce offences carrying substantial financial penalties for brand owners who fail to comply with their obligations under the measure.29 As a result of substantial criticism over industry compliance with the covenant, and the inability of the NEPM to force compliance with measures that were widely considered to be inadequate anyway, this NEPM was revised in 2005, and again in 2011, to supposedly make industry more accountable for delivering results.30 The subsequent development of a national product stewardship scheme for televisions and computers, under the Product Stewardship Act 2011 (Cth), has brought packaging measures under renewed scrutiny, which, together

with legislated principles of product stewardship in other states, may be interpreted as representing direct dissatisfaction with the progress of the voluntary implementation of reasonable measures by not only packagers but product designers, wholesalers and retailers of a range of consumer products. Product stewardship is discussed further at 16.5.

Implementation of national measures 15.14 The IGAE requires the Commonwealth and states to develop legislation to implement the NEPM in the states. It was intended that the measures adopted by the council would apply with immediate effect as a valid law in each jurisdiction. The enabling legislation has not taken this approach. The Commonwealth legislation provides that it is the responsibility of each state and the Commonwealth to implement an NEPM in respect of activities in that [page 620] jurisdiction.31 It also seems that the state in question will have sole responsibility for the enforcement of these measures.32 The upshot of this is that each state is given a good deal of discretion as to how and when it implements the national measures. 15.15 Victoria provides that NEPMs may be implemented through state environment protection policies, or state policies (EPPs) may be amended to ensure consistency with NEPMs.33 Queensland and South Australia provide for the immediate incorporation of NEPMs into state law as EPPs.34 New South Wales simply provides that a state protection of the environment policy may be made for the purpose of implementing an NEPM.35 In the Northern Territory, implementation of an NEPM lies within the discretion of the minister and the administrator.36 In Western Australia, the minister may, by declaration, implement an NEPM as an approved environmental policy with the force of law.37 Rather than developing its own regime, the Commonwealth proposed to adopt and be bound by state legislation.38 However, since the Commonwealth is basically not bound by state environmental laws (see 5.49,39 this meant that legislation or formal arrangements would be necessary if state laws implementing NEPMs were to apply to Commonwealth activities.40 The National Environment Protection Measures (Implementation) Act 1998 (Cth) now effectively allows the Environment Minister to apply those state laws to

the activities of the Commonwealth or Commonwealth authorities in the Commonwealth or other places.41 Alternatively, the Environment Minister can declare that some other Commonwealth regime for the implementation of the NEPM, in relation to that activity, will achieve the environmental outcomes specified in the NEPM.42 If NEPMs are not implemented by ministerial declaration, they can be implemented by regulations43 or by an environmental management plan44 following the conduct of an environmental audit. [page 621]

Enforcement of national measures 15.16 The national legislation has no mechanism to ensure that the states cooperate and comply with measures that have been adopted, other than a duty to submit an annual report to the council on the ‘implementation and effectiveness of national environment protection measures’.45 These reports, together with a similar report from the council, are required to be tabled in the Commonwealth parliament.46 It is uncertain whether the measures will be binding on a participating jurisdiction so as to ground a right of action by another state or even an individual to secure compliance with an environment protection measure. Fowler47 concludes on this aspect: It may be that the NEPMs create rights and liabilities as between the members of NEPC at the very least, given their status as disallowable instruments. The distinction here is that whilst NEPMs may not directly impose obligations on the community, they may create obligations as between the members of NEPC, who are obliged by legislation to implement them.

Since the NEPC will be a cooperative arrangement in the true sense of the word, there is no risk that states will lose control over local decision-making, since implementation and enforcement is firmly in the hands of state governments.

State legislation Modern approaches to pollution control 15.17 The first phase of pollution control policy, developed in Australia in the 1960s and 1970s, basically followed the pattern in the United Kingdom. Legislation concentrated separately on the different environmental media of

land, water, air and noise, except for Victoria, which enacted a comprehensive Environment Protection Act in 1970 that still remains the basis of that state’s response to pollution control. The central feature of this early legislation was a concentration on regulation to achieve the objectives of the legislation. This was to be furthered by the introduction of a licensing system for major polluters that specified maximum concentrations or volumes for emissions, backed by criminal sanctions for breaches of the legislation. This regulatory approach, frequently referred to as ‘command and control’, has been regularly criticised for concentrating too much on process rather than on environmental outcomes, and for failing to provide adequate incentives for upgrade and improvement.48 [page 622] The command and control system also required the regulator to expend a large proportion of its resources on policing, investigation and enforcement. A tight regulatory system will not work well unless it is closely monitored and enforced. However, it was argued that giving incentives to industry to introduce and monitor their own improvements would reduce the administrative burden on regulatory authorities and lead to desired environmental improvements.49 Both regulatory and incentive-based approaches, however, have also been criticised for their lack of public participation in policy design and implementation. Calls for ‘new environmental governance’ seek to go beyond traditional forms of participation ‘by giving citizens and non-government stakeholders roles in public decisions and enforcement that have traditionally been reserved for bureaucracies’; for example, by developing environmental regulatory standards and producing and monitoring individual pollution permits.50 Practical effect has been given to this type of participation through the development of environment improvement plans, particularly in Victoria: see 15.44 and following. 15.18 Today, regulation remains the backbone of current regimes for pollution control in Australia. However, modern approaches recognise, first, that integration of approaches to environmental management of different segments of the environment (land, air, water) will lead to best practicable environmental outcomes;51 second, that pollution control must be integrated with land use planning and other regulatory systems;52 and third, that economic or market-based incentives must be employed as a major policy initiative to supplement regulation in achieving improved standards of

pollution control. This is particularly important in addressing diffuse sources of pollution, such as runoff into rivers and estuaries from agricultural operations and stormwater overflows from built environments, and in managing impacts from small and medium-sized enterprises that are not required to be licensed. Pollution regulation was initially devised to capture fixed sources of pollution (from pipes and chimneys) created by major industrial operations;53 diffuse sources54 and myriad small businesses are more difficult to regulate and demand more innovative approaches.55 [page 623] There is thus now more flexibility in regulatory regimes and an increased capacity for industry to determine its own preferences for achieving the objectives of the regulators. There is more concentration on moving away from ‘end of pipe’ solutions, which focus more on the effect of emissions on the receiving environment, to tracking back up the pipe to regulate the processes that produce pollution. New policy initiatives provide industry with economic incentives to make ‘front end’ improvements to reduce emissions — for example, load-based licensing56 — coupled with more flexible options to achieve overall environmental improvements; for example, tradeable emissions,57 bubble licensing58 and offset schemes.59 At the same time, such concessions still demand a strong regulatory underpinning to discourage abuse of the system and adequately punish and deter those who would thwart the objectives of the regulatory scheme. As a result, greatly increased penalties for contravention of the legislation and its instruments of management, coupled with extended corporate liability, are also key features of modern legislation.60 15.19 This new policy approach to pollution control encompasses a range of management tools, detailed below. All of them are designed to reflect, ultimately, a commitment to the effective implementation of the principles of ecologically sustainable development (ESD), particularly the principle that decrees that polluters should pay for the real costs of their impacts on the environment.61 It should also be noted that legislation governing land use planning and development, and the associated law on environmental impact assessment (EIA) (see Chapters 9–11) play a significant part in the management of environmental pollution and waste. Development consent, preceded by environmental assessment (EA), is often required under relevant planning laws for activities that involve the creation of waste or that may pollute the environment.62

[page 624]

Defining pollution 15.20 The terms ‘pollution’, ‘pollute’ and ‘pollutant’ are defined differently in each piece of legislation. Whether defined at length63 or in succinct, general terms,64 the basic aim is to include anything that may cause a detrimental change in the quality of the surrounding environment, affect the safety or health of human beings, or harm wildlife.65 In many cases, in fact, statutory definitions appear so widely cast that it is difficult to envisage anything that is excluded from the definition. This means that the courts may be called on to give sensible meaning to the intent of the legislature. For example, under the (now repealed) Clean Waters Act 1970 (NSW), the extremely wide definition of pollute included to change ‘the physical, chemical or biological condition of the waters’ or ‘to make the waters unclean, noxious, poisonous, or impure’. A similar definition of water pollution has been included in the current legislation in New South Wales, the Protection of the Environment Operations Act 1997.66 In Electricity Commission (New South Wales) v Environment Protection Authority (1992) 28 NSWLR 494, the court stressed that this definition of pollute had to be applied in a common-sense fashion; for example, the condition of the water67 of a domestic swimming pool treated with chlorine did not relevantly change every time chlorine was added. However, although it might be a strange interpretation of the legislation if a person could not add chlorine to his or her own swimming pool, it might not be so strange if the legislation prohibited that person adding chlorine to a neighbour’s pool.68 15.21 In Western Australia, under the Environmental Protection Act 1986 (WA), the term ‘pollution’ includes the ‘direct or indirect alteration of the environment … to its detriment or degradation’.69 It was held, at first instance, in Carbon v Palos Verdes Estates Pty Ltd [1990] ELR 179, that this definition was not confined to permanent damage and that the removal of top soil and clearance of vegetation in connection with track making fell within the definition of pollution. This decision, however, was reversed on appeal. The Supreme Court decided that the term ‘pollution’ should bear its ordinary meaning of physically impure, foul or filthy, thereby making the legislation [page 625] capable of ‘sensible operation’:70 Palos Verdes Estates Pty Ltd v Carbon (1991) 72 LGRA 414. Malcolm CJ remarked (at 427–8):

Read without giving any meaning to pollution other than the literal meaning of the words in the definition any alteration to the environment by the discharge of carbon monoxide, hydrocarbons, cutting a lawn, pruning roses or picking flowers could be construed as a detriment to the environment. The clearing of any housing block to create access, lay water and electricity connections, make sand pad or cut down trees and vegetation would have the same consequence … It is possible to read the definition of pollution … in such a way that any direct or indirect alteration to the environment, however limited or transitory, which involves any loss or damage to the environment constitutes pollution. Thus, not only would it include the activities already mentioned, but it would extend to driving a motor vehicle, lighting a fire, burning rubbish or any one of myriad activities undertaken in daily life. It is difficult to accept that this is what Parliament intended. One would not have thought that Parliament intentionally would create a situation where substantial members of the population would unknowingly commit offences in the ordinary course of their daily lives.71

15.22 Similar sentiments were echoed by Aickin J in Phosphate Cooperative Co of Australia Ltd v Environment Protection Authority (1977) 138 CLR 134 at 146–7, about the definition of ‘waste’72 in the Environment Protection Act 1970 (Vic), which ‘is so wide that to smoke, or perhaps even to breathe, would appear to be to emit matter into the environment so as to cause an alteration in the immediately surrounding portion of the environment. To water one’s garden or to drive a car would equally be to discharge waste as defined and would require a licence from the Authority’. Aickin J also considered that to spray a fruit tree in a suburban garden would constitute pollution and that ‘air from a domestic heating system … appears to be a pollutant’. 15.23 It is clear, however, that although technically many everyday activities may be categorised as pollution, both the regulatory authorities and the courts will take a common-sense approach in directing resources at important rather than trivial sources of environmental harm. 15.24 As a legal definition, of course, pollution may also be recognised by accepted sampling techniques that show up concentrations of particular substances in excess of standards laid down as acceptable by regulatory instruments, such as regulations,73 [page 626] EPPs,74 or licence conditions.75 In the Australian Capital Territory, for example, it is specifically provided that things referred to in the definition of ‘pollution’ shall be taken to cause environmental harm if the measure of a pollutant entering the environment exceeds the prescribed measure, or the pollutant is a prescribed pollutant.76 It is not always possible, however, to define pollution by reference to fixed regulatory standards. Noise and smells, in particular, may only become actionable pollutants when they are offensive, excessive, objectionable or unreasonable.77 In Western Australia, for example,

noise may be deemed to be unreasonable if it contravenes prescribed conditions or circumstances, but otherwise depends initially on the opinion of an authorised officer, or more than three occupiers affected by the noise, or less than three in certain circumstances so long as the complaint is not ‘frivolous, vexatious or unreasonable’.78 These standards may vary according to the nature, frequency, duration and locality of the emissions.79 [page 627] 15.25 Environment protection legislation in Queensland, South Australia, Tasmania and the Australian Capital Territory, stipulates that a pollutant or contaminant may be gas, liquid, solid, odour, an organism, energy, or a combination of these.80 In these jurisdictions, to pollute81 includes to deposit or disturb, as well as discharge or emit, and to cause or fail to prevent pollutants being deposited, disturbed or escaping. The legislation also stipulates that environmental harm is caused by pollution whether that harm results from the pollution alone or from the combined effects of the pollution and other factors, and whether the harm is a direct or indirect result of the pollution.82 In New South Wales and some other jurisdictions, the offence of polluting waters may even be committed without actually polluting waters!83 Western Australia84 defines pollution in terms of emissions; and emissions may be a discharge of waste; emission of noise, odour or electromagnetic radiation; or transmission of electromagnetic radiation. This definition emphasises that actionable (unlawful) pollution is tied up with emissions from premises into the surrounding environment; emissions onto premises that do not escape from those premises tend [page 628] to be regulated by occupational health and safety legislation or by contaminated lands legislation.85

Environmental harm 15.26 In some states, liability for pollution is categorised by reference to the degree of environmental harm caused, or likely to be caused, by the pollution. Environmental harm may be described as any direct or indirect alteration of or impact on the environment that has an adverse effect on or degrades the environment, or an environmental value,86 of whatever degree or duration.87 Theoretically, this definition could encompass activities other than pollution,

such as land clearing, although as the Palos Verdes case (see 15.21) tends to suggest, at least where other regimes of control are in place, the concept of environmental harm is likely to be limited to regulation of polluting activities.88 Nevertheless, Western Australia has legislated to effectively reverse the decision in Palos Verdes by defining ‘environmental harm’ to include harm to the environment involving removal or destruction of, or damage to, native vegetation or the habitat of native vegetation or indigenous aquatic or terrestrial animals.89 Legislation in these jurisdictions generally makes it an offence to cause environmental harm by emissions of pollution.90 By contrast, New South Wales deals with environmental harm more by reference to particular offences where the seriousness of the offence is categorised by the state of mind of the offender; for example, wilfully or negligently disposing of waste in a manner that harms or is likely to harm the environment.91 Victoria uses the concept of ‘harm’ more to justify environmental auditing.92 In the Australian Capital Territory, the Northern Territory, Queensland, South Australia, Tasmania and Western Australia,93 environmental harm is categorised in the following way, discussed below. [page 629]

Serious environmental harm 15.27 This involves actual or potential adverse effects on the health or safety of human beings, or on the environment94 or (in the Northern Territory and Queensland) to environmental values, which is of high impact or on a wide scale or (in the Northern Territory, Queensland and Western Australia) irreversible; or results in loss or property damage or clean-up or prevention costs, which exceed the threshold amount ($50,000 in Queensland and South Australia); five times the threshold amount ($20,000) in Western Australia; 10 times the threshold amount ($5000) in Tasmania; or, in the Northern Territory, as prescribed. The threshold amount may be amended by regulation. In the Australian Capital Territory, it means environmental harm that is very significant or becomes so, significant harm to an area of high conservation value (also Western Australia), or harm that results in loss or damage to property or requires remedial action to the value of more than $50,000.95

Material environmental harm 15.28 This involves an environmental nuisance (except in Queensland and

Western Australia) of high impact or on a wide scale; an adverse effect on the safety or health of humans, or on the environment96 or (in Queensland and Western Australia) an environmental value, which is not negligible or (in the Northern Territory, Queensland and Western Australia) trivial; or loss or property damage, or prevention or restoration costs, which exceeds the threshold amount by up to 10 times (effectively $5000 to $50,000); or (in Western Australia) exceeds the threshold amount of $20,000; or (in the Northern Territory) as prescribed. In New South Wales, the term ‘material harm’ is similarly defined, although this is relevant only to the duty to notify pollution incidents. The threshold amount is in excess of $10,000.97 In the Australian Capital Territory, material environmental harm is defined as environmental harm that is significant or becomes so; that is, to an area of high conservation value, other than harm that is trivial or negligible; or that results in loss or damage to property or requires necessary remedial action to a value of more than $5000.98 Loss includes reasonable costs and expenses incurred in taking all reasonable and practicable measures to prevent or mitigate harm and make good resulting environmental damage.99 [page 630]

Environmental nuisance 15.29 This is the emission of a pollutant that unreasonably interferes with, or is likely to unreasonably interfere with, a person’s enjoyment of the environment or an environmental value, caused by aerosols, fumes, light, noise, odour, particles or smoke, or an unhealthy, offensive or unsightly condition because of pollution or contamination or some other prescribed manner.100

Managing pollution: strategic approaches 15.30 Responsibility for managing pollution in each state and territory rests with both central and local government authorities. The division of responsibility is generally determined by statutory listing of those industries and activities that fall within the responsibility of central government, leaving the rest to management by local government.101 It must be recognised, however, that other authorities frequently have control over processes and activities that might cause pollution to become an environmental problem or health risk. This is well demonstrated, for example,

by the case of Ryan v Great Lakes Council; Graham Barclay Oysters Pty Ltd v Ryan (1999) 102 LGERA 123; [2002] HCA 54 discussed at 3.33. In this case, a build-up of toxic concentrations of pollutants in oysters occurred because of the changes to the surrounding environment occasioned over a long period of time. This reflected practices that fell within the jurisdiction of, and were often authorised by, agencies of government other than the environment protection authority. 15.31 The trend in environmental management is towards closer integration of planning and environmental controls. Integrated assessment of land use and environmental issues is preferable because it is more efficient in terms of time, expense and resources. In addition, it is likely to lead to better identification and consideration of important environmental values. Although environmental planning and environment protection (pollution) licences may be issued by different authorities, applications for development that necessitate the grant of both types of licence commonly will proceed through an integrated process of consideration by the different regulators. In other words, where integrated assessment exists, the applicant only has to make one application, rather than make separate applications to different regulators.102 Permission for each regulated aspect of the activity, however, must still be forthcoming from the appropriate regulator. [page 631] 15.32 In addition to the principal legislation described in this chapter, miscellaneous provisions in other legislation, administered by different authorities, may also prohibit acts of pollution. For example, this may occur under legislation designed to protect water quality or fisheries.103 The focus of this chapter, however, is on the principal legislation administered by the environment protection authorities, because this is where the primary controls may be found. Modern pollution control legislation adopts a mix of regulatory controls and economic incentives to manage pollution and pursue environmental improvements. The main features of current policy approaches are detailed below.

Best practice environmental management 15.33 Environment protection authorities (the pollution control regulators) would like to be able to adopt a ‘zero tolerance’ approach to pollution, but the practicalities of cost versus outcomes means that policy is directed more by principles such as best available techniques economically

achievable (BATEA) when defining the obligations of polluters to effectively manage their emissions. Best practice environmental management (BPEM) may thus be described as the environmental management of an activity that achieves ongoing minimisation of environmental harm through cost-effective measures assessed against measures currently used nationally and internationally for that activity.104 In other words, it is setting a balance between the cost of achieving desirable environmental quality standards and the risk of environmental harm arising from the activities under consideration. Adoption of BPEM by pollution control authorities as a regulatory standard required of industry is largely a matter of policy.105 However, it may be stated as a fundamental concept of the legislation and adopted as a criterion for decision-making.106 BPEM naturally introduces some flexibility into negotiations between regulators and industry on the measures to be adopted for pollution control. This is an approach that is in line with current policy to encourage industry to work out its own solutions for maximum environmental performance coupled with economic efficiency. BPEM may be usefully applied in the preparation of an environmental management program (EMP) or plan,107 in determining licence applications108 or before issuing environment protection [page 632] orders.109 In determining what is the BPEM for any particular activity, regard must be had, for example, to the strategic planning being adopted; administrative systems put into effect; product and design processes; public consultation; and waste prevention, treatment and disposal.110 15.34 What exactly BPEM is for any particular industry, or any particular sector of an industry, will depend, in practice, on international research into the sort of management practices that are both environmentally effective and economically achievable. From an industry perspective, if there are no internationally acclaimed benchmarks and standards for best practice, setting appropriate standards is probably best done in collaboration with all the stakeholders. A helpful starting point would be to examine appropriate existing industry best practice codes and guidelines, both domestic and international, to identify basic features that might be usefully incorporated in a particular industry approach. Existing regulatory quality standards for emissions of pollutants will, of course, have to be complied with. However, any code of practice should ideally seek to go beyond mere compliance to build in a process for continual

improvement and revision of current practices. A code that merely seeks to reflect current regulatory standards is unlikely to generate much stakeholder enthusiasm, although it can provide useful guidance for avoiding legal liability. The concept of BPEM, however, really implies continual monitoring of performance, and implementation of new measures as appropriate, in order to keep pace with technological advances, rather than minimum regulatory requirements. Documented policy commitments to BPEM may be realised, for example, through: codes of practice and associated guidelines;111 industry agreements and plans;112 or environment protection and waste minimisation policies.113 The legal status of such instruments depends on how BPEM is translated into a positive commitment.

General environmental duty 15.35 Legislation in Queensland, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory stipulates that a person must not undertake an activity that pollutes or might pollute the environment unless that person takes all reasonable and practicable measures to prevent or minimise environmental harm.114 [page 633] In determining whether a person has complied with this duty, or what action needs to be taken to comply with this duty, regard must be had to the nature of the pollution, the sensitivity of the receiving environment, financial implications, the current state of technical knowledge, and the likelihood of the success of the proposed measures.115 In Tasmania, a local council ‘must also use its best endeavours to prevent or control acts or omissions that cause or are capable of causing pollution’.116 In Queensland, a transitional environmental program must state the environmental protection commitments the applicant proposes for the activities to protect or enhance the environmental values under BPEM.117 15.36 Failure to comply with the duty does not, of itself, give rise to civil or criminal liability.118 However, compliance may be enforced by issuing an environment protection order119 or by applying to a court or tribunal for a civil or criminal remedy to restrain breaches of the legislation.120 It will be a

defence to criminal proceedings alleging failure to comply with this duty, to prove that the pollution was covered by the terms of an environment protection policy, licence or other authorisation;121 or that the unlawful act was carried out in pursuance of a lawful activity and in compliance with the general environmental duty.122 It may also be a defence to a charge of unlawfully causing environmental harm that the defendant complied with the general environmental duty by observing an approved code of practice,123 or in some other way.124 Although the legislation in New South Wales does not specifically refer to a general duty, it has been held that implicit in the words ‘a person who pollutes any waters is guilty of an offence’ in the Protection of the Environment Operations Act 1997 (NSW) s 120, is the imposition of a duty or obligation not to pollute waters. It is not necessary for the legislature to expressly state that a person must not pollute waters to create a duty or obligation sufficient to enliven the civil enforcement proceedings of the Act.125 [page 634]

Reporting pollution 15.37 Most states require that persons undertaking activities in the course of which environmental harm occurs or pollution is released by accident, malfunction or emergency, must report incidents to the regulatory authority as soon as is reasonably practicable;126 within 24 hours of the person becoming aware of it;127 or, in New South Wales, immediately the person carrying on the activity becomes aware of it.128 Failure to do so will constitute an offence. To meet this obligation, industries would be expected to have an efficient management system that can quickly convey advice from employees about an unauthorised emission to higher level management.129 In New South Wales and Queensland, for example, there is a specific duty cast on employers and occupiers to take all reasonable steps to ensure that employees and agents report to them incidents and relevant information; and employees and agents are also under a specific duty to report incidents to employers.130

Environment protection policies 15.38 Environment protection policies (EPP) generally specify environmental pollution objectives and strategies for achieving those objectives. These may include the imposition of pollution standards, principles of waste management, matters for consideration in granting

environmental approvals, and management of cumulative impacts.131 In Victoria, policies are designed to provide a basis for maintaining [page 635] environmental quality and informing planning and licensing functions.132 They may apply generally or be limited in application by reference to specific factors. They may apply differently in different circumstances, and provide for the adoption of specific control measures for receiving mediums of air, water or land, wherever situated throughout a state; or for waste management.133 Policies may also deal with environmental quality in specific geographic areas,134 and encompass technologies and processes, and particular industries, activities and practices.135 They may be legally binding, particularly where they stipulate environmental standards,136 so that emissions or activities must be consistent with state policies and contravention may be an offence.137 They may also be advisory only, as when dealing with desirable environmental management practices.138 In Tasmania, the policy itself will stipulate how it is to be implemented and enforced.139 15.39 The content of policies that are not legally binding, as in New South Wales, may, however, be effectively enforced through regulations; conditions attached to environment protection licences and development consents; and environment [page 636] protection orders. Policies also provide a framework for regulatory authorities to which regard must be had in making decisions under the legislation,140 and may indeed have to be taken into account by other authorities exercising functions under other legislation.141 Such a direction would be consistent with overall policy objectives to move towards integrated environmental management. 15.40 Policies are usually produced in draft form for public consultation before coming into effect142 and may be treated as subordinate legislation so that they are subject to disallowance by parliament.143 Provision may also be made for giving immediate effect to a policy that is necessary for the proper administration of the legislation pending public review.144 Environmental protection policies may be required to be reviewed within a set period of time after coming into force.145

Codes of practice and guidelines 15.41 Codes of practice may be developed by particular industry sectors146

or by the regulatory authorities.147 They generally appear in the form of industry codes for best practice, directed to particular industries or activities, and may be supported by more detailed guidelines that advise on how to apply the code so as to achieve [page 637] BPEM. Codes and guidelines generally are not legal instruments, and, therefore, are not legally enforceable. Sometimes, however, a code developed by a regulator may be given the status of subsidiary legislation;148 compliance with a guideline may be mandatory,149 or compliance with a code of practice developed by industry and approved by the regulator may be made part of a legislative scheme, particularly in order to demonstrate how compliance with the general environmental duty may be achieved.150 Codes, standards and other documents published by specified bodies may also be incorporated or referred to in codes published by regulators,151 EPPs152 or environmental protection agreements.153 In this event, the codes may also become legally binding if the instrument containing the code is itself legally binding. Adherence to a code could also be made a condition of a licence, breach of which would have legal consequences. The existence of, and compliance with, a code, could also conceivably assist a licensee to claim accredited licensee status in Victoria.154 15.42 From an enforcement perspective, compliance with a code of practice may be useful as a defence to a charge of causing unlawful environmental harm or pollution, or breach of the general environmental duty. In Queensland, the Australian Capital Territory and the Northern Territory, it is a defence to a charge of unlawfully causing environmental harm to show that the general environmental duty was complied with by observing a relevant code of practice.155 Failure to comply with this code may be treated by the regulator as evidence of failure to comply with the duty and, therefore, expose an operator to enforcement through the issue of environment protection orders.156

Translating strategies into action Industry plans, programs, systems and schemes: an overview 15.43 In all jurisdictions, the environmental protection legislation makes

provision for a variety of environmental management measures that may be applied to specific industry sectors and specific operators, in order to translate general strategic [page 638] approaches to managing pollution into action ‘on the ground’, aimed at pursuing pollution control objectives.157 These measures are variously described as plans,158 programs,159 systems,160 or schemes.161 [page 639] The contents of the measures may include goals and objectives to be achieved;162 indicators, criteria or methods to be used in measuring pollution or environmental harm;163 and the consequences of failure to comply with a plan or program.164 These measures are usually implemented by way of regulations, conditions of licences, or by order of the relevant environment protection authority, though they may also be made by agreement between a regulated operator and the regulator.165

Environmental management and improvement programs and plans 15.44 Environmental plans and agreements effectively translate broad policy requirements for activities of environmental significance, which might be contained, for example, in EPPs, best practice management guidelines or codes of practice, to specific regulatory action for particular industry sectors. Although environmental improvement programs (EIPs) can take a number of forms, they all have the same overarching goal — namely, to accomplish continuous corporate environmental improvement — and they all seek to achieve this goal through three interrelated regulatory techniques: processbased, collaborative and informational regulation.166 15.45 To translate broad-based policies into operational requirements, the preparation of an EMP or EIP may be imposed as a mandatory requirement by a regulatory authority, either on industry sectors or targeted operators; or may be undertaken voluntarily. In Victoria, for example, environment improvement plans167 may be applied to particular industries on a statewide basis rather than to particular premises.168 Any premises operating in an industry covered by such a program may be required to conduct and publish the results of an environmental audit. Voluntary participants that enter into an environment improvement plan will be exempt from

[page 640] the audit requirements. Industry waste reduction agreements may also be entered into with any person or industry association or may be required by the EPA.169 Breaches of agreements may attract a notice of compliance.170 The incentive for the conclusion of these types of agreements is generally the threat of regulatory action to reduce waste streams if voluntary industry activity does not achieve significant waste reduction targets. As part of an EMS, an EMP or EIP may be of use in defending a charge of causing unlawful environmental harm or pollution, and may be taken into account in sentencing.171 15.46 Environmental waste reduction or management plans may require a licence holder to detail how the licensed activity will be carried out in order to achieve strategic environmental outcomes.172 An environmental improvement or management program may also be required by the regulatory authority where existing activities do not demonstrate compliance with regulatory standards for point source pollution and compliance is not immediately practicable.173 Such a program may be required, for example, where environmental auditing or monitoring reveals that an industry is having problems complying with regulatory requirements or is causing environmental harm, or the regulatory authority wishes to provide for transition to a new regulatory standard. The polluter will be required, either by written notice or by a condition of an environmental authorisation, to undertake specified action within a specific period, to achieve compliance with the Act, the general environmental duty, any applicable EPPs, or regulatory standards.174 The content of a proposed program will need to take into account the principle of BPEM and the risk of environmental harm emanating from the activity,175 and other [page 641] stipulated criteria.176 A plan is likely to include requirements, for example, that specify upgrades to plant and equipment, involvement of the community, and monitoring and auditing of compliance. The plan may stipulate stakeholder consultation and collaboration; and ensure that the community has sufficient information to take part in the process.177 Poor performing industries may be invited to enter into an EIP as an alternative to mandatory audits or other forms of mandatory compliance.178 15.47 Plans or programs may also be required, or submitted voluntarily,179

to underpin applications to carry out proposed activities or continue to carry out existing activities. For example, in South Australia, a person applying for an environmental authorisation or exemption may lodge a proposed environmental improvement program with the application. This proposed program will demonstrate how and within what time frame compliance will be achieved, or indicate action to be taken that goes beyond standards required by or under the Act.180 In the Australian Capital Territory, a person who is conducting or proposing to conduct an activity may submit a plan for accreditation. Provision is then made for the issue of a special environmental authorisation for the carrying out of that activity.181 In the Northern Territory, a person may submit a draft plan detailing proposals for future compliance, and that plan will then not be admissible in criminal proceedings for offences against the provisions specified in the plan.182 15.48 Draft programs may be made available for public consultation.183 The requirement to submit a plan, and approval or rejection, may be subject to appeal.184 In Queensland, prospective purchasers of a business to which a transitional environmental program applies, may rescind the contract of purchase prior to sale if they have not been informed, by written notice, of the existence of the program.185 [page 642] Contravention of any requirement imposed by an environment improvement program may be a criminal offence.186 However, in Queensland, where a program is voluntarily submitted following an event that has caused or threatened environmental harm which constitutes an offence under the Act, immunity from prosecution187 may be granted pending consideration of the draft program. The program notice and supporting information may become privileged so that they may not be used in legal proceedings against the person submitting them.188 In the Northern Territory, a person is also immune from prosecution if complying with a plan in relation to an offence against a provision specified in the plan.189 Once entered into, the terms of an EMP prevail notwithstanding the provisions of a licence or environment protection policy.190 15.49 Victoria has recently introduced the concept of a NEIP,191 described by Gunningham et al as ‘a truly “second generation” instrument’ that ‘not only abandons command and control in favour of collaboration and community-based decision-making, but also specifically engages with diffuse

and complex environmental problems at a neighbourhood geographic scale’.192 Unlike an EIP, which focuses on point source pollution problems, a NEIP focuses on diffuse pollution. Although the legislation is not particularly helpful in describing the nature of such a plan, the minister’s second reading speech indicates that the purpose is ‘to enable those contributing to and those affected by local environmental problems to come together in a constructive forum’ where they can ‘agree on the environmental priority issues for the neighbourhood’ and devise a plan to address them in a practical manner.193 Although the emphasis is on voluntary submissions, a plan can be directed by the EPA where applicable intervention criteria194 [page 643] are met.195 It has been predicted, however, that this type of collaborative scheme ‘in the longer term … is unlikely to sustain effective collaborative organization’.196 This has been put down to lack of organisational capacity and slow progress in delivering outcomes, leading to difficulties in maintaining stakeholder interest.197 15.50 Another innovative concept introduced in Victoria is the sustainability covenant: ‘sustainability covenants are an instrument that can add to the options provided by the other statutory tools within the Act, by providing an opportunity to focus on issues such as product design and broad-ranging business, social and environmental considerations, as opposed to a sole concentration on traditional point source management’.198 The EPA may enter into such a covenant with an industry if the covenant is, or is likely to be, effective in increasing the resource use efficiency, or reducing the ecological impact, of the industry. This could encourage, for example, product stewardship approaches to resource use. Benefits to industry may clearly be offered as an inducement to enter into such a covenant, though these are not spelt out in the legislation, and inducements appear to depend more on a desire by participants to be regarded as leaders in promoting sustainability objectives, including efficient use of resources, and reducing the ecological impact of products and services. Such an approach may also, of course, be a practical investment that promotes economic returns and public recognition. A covenant may also be sought where the Governor declares that an industry has the potential to have a significant impact on the environment,199 in which case the EPA may require a statement of ecological impact irrespective of whether there is a covenant in place. The statement may then be used by the EPA to require the sorts of action that might otherwise be taken under a covenant.200

Environmental management systems (EMSs) 15.51 An EMS201 is essentially a corporate system for pollution prevention that informs management and employees at all levels of an organisation how to approach their pollution prevention responsibilities. It establishes chains of communication within the organisation so that prompt and effective responses can be made if anything [page 644] does go wrong. Corporations commonly try to fulfil their pollution prevention regulatory requirements through the adoption of an internationally recognised standard of management that is designed to avoid pollution problems, or at least, if accidents occur, demonstrate their commitment to due diligence. The establishment of an EMS is not a regulatory requirement. It is a voluntary response by industry to enable corporate polluters to meet their regulatory objectives and legal responsibilities. Having an EMS in place is not the same as the legal defence of due diligence, but it may go some way to establishing a certain level of commitment that may influence a regulator’s attitude to prosecution, and influence sentencing when an offence has been proved.202 15.52 Standards Australia has adopted the International Standard Organisation’s 14000 series as the standard for EMSs in Australia. This aims to provide a holistic, strategic approach to an organisation’s environmental policy, plans and actions, by specifying generic requirements for an EMS and auditing procedures that can demonstrate compliance with the required standards of performance.203

Environmental standards 15.53 The setting of environmental standards204 has been vital to achieving improved environmental performance and will continue to play a major role. More than three decades ago, two Senate select committees on air and water pollution205 accepted the need to conform as closely as possible to commonly agreed national standards. There are two important reasons why such an approach was deemed necessary. First, pollution is not confined by state boundaries. Pollution is carried from one state to another by wind and water. Thus, the alleviation of any particular problem may depend on cooperation between two or more state governments and/or the Commonwealth. Second, the application of uniform standards throughout Australia helps to prevent

trade advantages accruing to states, or industries operating in any particular state. Without such standards, certain industries might be tempted to set up operations in one particular state simply because its discharge consent standards are lower than those in other states. A uniform discharge policy, therefore, helps not only to prevent cutthroat interstate competition to attract industry, but also prevents the creation of ‘pollution havens’ in any part of the Commonwealth. 15.54 Ambient emission standards are based on preserving desired environmental quality levels of air or water. Standards may be adjusted up or down as background levels deteriorate or improve. If concentrations of any particular substance threaten to deteriorate to too high a level, then the competent regulatory authority may have to [page 645] take further action to protect ambient quality levels. This may be done by, for example, imposing more restrictive conditions on existing and future licence holders, or by not allowing any new emissions into an airshed or water catchment area until background levels stabilise. Background levels of environmental quality on which ambient standards may be based, may be set by reference to continual monitoring regimes established by the pollution control authorities, and state of the environment reporting. This latter is a process of investigation of ambient environmental quality that, if carried out on a regular basis, will chart the improvement or deterioration in the quality of the surrounding environment continually over the years.206 15.55 Emission standards prescribe maximum permitted concentrations of particular substances, emanating from fixed emission points, which may be released into the environment in given volumes or concentrations over given periods of time. These standards may apply to all discharges, irrespective of the existing qualities of the environment into which they are released. They may also be set according to the desired quality of the receiving environment. Failure to comply with prescribed standards for emissions will constitute an offence,207 usually as a breach of the conditions of a licence or environmental authorisation, or for ‘causing’ or ‘permitting’ pollution.208 15.56 As a matter of practice, standards reflect, or should reflect, the principle of BPEM. There would be little point in setting emission standards that fall short of world’s best practice where this is economically achievable. Equally, it would be unrealistic to impose standards that could not be

achieved by modern technology, or that would impose unrealistic financial burdens out of all proportion to the improvement in environmental quality that could be expected of the measure. In Brown v Environment Protection Authority & North Broken Hill Ltd (No 2) (1992) 78 LGERA 119, it was acknowledged that the New South Wales EPA had adopted a policy of setting standards according to ‘prosecutable reality’. This is the standard at which compliance can be achieved and enforced, rather than the standard that could be set with only environmental parameters in mind but that is not realisable and consequently not enforceable.

Works approvals 15.57 The idea of licensing polluting discharges to comply with certain set standards has meant that pollution control authorities have traditionally only been able to regulate the quality of effluent discharged from premises, rather than specify how it should be treated. Works approvals enable regulatory authorities to stipulate what equipment or technical requirements will have to be provided to meet prescribed effluent discharge standards, before new works are constructed, new plant installed, changes made to the methods of operation of licensed premises, alterations made to [page 646] the type of fuel and materials used, and products produced, on the premises or where new or increased emissions might result.209 Following completion of approved works, premises will still have to obtain any necessary pollution control licences to operate. A works approval merely permits construction, installation or changes to proceed. It does not permit discharges to be made. In the Australian Capital Territory, the authority is merely entitled to be informed about proposed modifications to prescribed equipment and works,210 although this would then give it a basis on which to review an environmental authorisation.211 15.58 In practice, works approval is becoming integrated with pollution licensing. In New South Wales and South Australia, licensing for ‘scheduled development work’ or approvals for installation of plant and equipment, are integrated with licensing or environmental authorisations for regulated activities.212 In other states, the use of regulatory mechanisms such as EPPs, environmental management and improvement programs, and the requirements of BPEM would be expected to give regulatory authorities the ability to negotiate on the use of technology and infrastructure to minimise pollution. At the same time it would allow industry the flexibility to determine

how to meet or surpass the required standards, commensurate with economic efficiency. Exercise of the power to vary, suspend or cancel licences may be the ultimate sanction.

Licensing 15.59 Licensing based on the prior determination of environmental quality standards is still the core of environmental protection strategies. Activities of environmental significance may not be undertaken without a licence or environmental authorisation.213 Before determining an application, some form of environmental [page 647] assessment will be undertaken by the approving authority,214 which is likely in any case to draw upon any EA carried out for the purpose of obtaining development consent for the project.215 The sorts of activities and industries that need a licence or authorisation are spelt out within the legislation or regulations made.216 Activities may be identified in the legislation by reference to particular industries, processes or activities; for example, intensive livestock production, chemical plants, mining, and waste transport and disposal.217 Generally, legislation stipulates a level of production or activity below which licensing will not be required.218 Activities may also simply be characterised initially according to their potential to cause environmental harm, followed by administrative determination, or identified by regulation, that any particular activity should require an authorisation.219 Those activities that require a licence or authorisation may also need a different form of approval dependent on their purpose or potential for harm. Increasing interest in ‘risk assessment’ means that each application for an environmental approval will be assessed proportionate to the level of environmental risk displayed by the proposal. Some applications may require a different or higher level of assessment than others.220 [page 648] Many applications for lower risk licences may either be automatically granted approval, subject to ‘standard conditions’, if they meet prescribed criteria;221 or be delegated to local authorities to deal with, although there may be a residual call-in power granted to the environment protection agency to enable a decision on licensing to be removed from a local authority so that the decision can be taken at agency level.222 15.60 In New South Wales, the local authority is identified as the

appropriate regulatory authority for non-scheduled activities in its area, except for activities in relation to environment protection licensing under the Protection of the Environment Operations Act 1997 (NSW) (which will be undertaken by the EPA), premises occupied by, or activities carried on by, public authorities, and matters for which a public authority is declared to be the appropriate regulatory authority.223 In practice, licensing is only undertaken for scheduled premises and activities regulated by the EPA, not for non-scheduled activities managed by local authorities. In the Australian Capital Territory, licensing functions can be called in by the minister for ministerial determination.224 Compliance with a licence provides protection from what might otherwise be statutory offences of pollution,225 but not necessarily from common law actions.226 15.61 Applications for licences and works approvals must generally be publicly advertised227 and referred to appropriate government agencies or other interested parties.228 An authority may decide to call a conference of all interested parties to assist in licence determinations.229 In Queensland, a party may ask the Land Court to conduct mediation.230 In New South Wales, public consultation is required only for the review, [page 649] not the issue, of licences. Review must be undertaken at least every five years.231 Public consultation is also required where a proposed variation of a licence will authorise a significant increase in the environmental impact of the activity and the proposal has not been subject to EA and public consultation under the Environmental Planning and Assessment Act 1979 (NSW) (EPAA).232 The integration of licensing functions with development control approvals under the EPAA effectively means that in respect of those developments which need such approvals, licensing may be scrutinised through the provisions for public participation under the EPAA.233 Registers of authorisations, orders, incidents and civil and criminal proceedings may be required to be kept for public perusal.234 15.62 Where the responsible authority fails to determine an application for a licence within the statutory time limits, the application may be deemed to be refused235 or, unusually, granted.236 Unless specified in the licence, a licence is usually valid indefinitely;237 however, there may be a stipulated period within which the licence must be reviewed.238 15.63 Licences may be granted, amended, revoked, suspended or cancelled generally at the discretion of the licensing authority, if necessary taking into

account stipulated criteria.239 In practice, revocations and suspensions will generally occur only [page 650] where persistent breaches of the regulatory requirements have been identified, and the polluter is not willing to comply or enter into an agreement with the regulatory authority to improve performance, or on other specified grounds.240 An example of this is where the holder has made false or misleading representations in order to obtain the licence, or has been convicted of a major pollution offence.241 15.64 Since it is primarily the premises that are licensed rather than the occupier, licences may generally be transferred to new operators, with the consent of the regulatory authority. Once again, any stipulated criteria must be taken into account.242 15.65 Compliance with licence conditions may be displayed through conditions relating to monitoring and reporting, statements of compliance and by requiring an audit.243 Reporting requirements may extend not only to an obligation to report incidents of pollution or unauthorised emissions,244 but also to the certification requirement that is imposed on licence holders to certify compliance with all regulatory requirements on a regular, at least annual, basis; and to identify any conditions that have not been complied with, together with reasons for any failures and details of any action taken to mitigate the effects of failure and prevent recurrence.245 15.66 Relevant considerations in licensing In exercising licensing functions, the relevant authority may be directed to have regard to various relevant matters. These include furthering the objects of the legislation, including ESD, and the general environmental duty, the BPEM for that activity, the suitability of the applicant to hold [page 651] such an authority, EPPs, EAs, improvement programs or performance agreements, public submissions, and the details of authorisations given under other legislation.246 15.67 In South Australia, the EPA cannot, except in limited circumstances where it believes the applicant is not fit to hold an authorisation, refuse a licence where the applicant has already been granted works approval or development authorisation for prescribed activities of environmental significance under the Development Act 1993 (SA).247 This is because

applications for development authorisations for such activities have to be referred to the EPA, under the Development Act 1993 (SA), and the EPA may direct the application be refused or impose conditions. In determining such applications, the EPA is directed to have regard to and seek to further the objects of the Environment Protection Act 1993 (SA), the general environmental duty and relevant environmental protection policies.248 15.68 In Western Australia, an application must be rejected if conditions of works approval have not been satisfactorily completed;249 however, the application must be approved if the conditions of works approval have been fulfilled.250 Neither a works approval nor a licence application may be approved if this would be inconsistent with an environmental protection policy.251 Where an environment protection policy is amended so as to require the imposition of standards more severe than currently provided for in existing licences, then the regulatory authority may, or must, amend licences so as to be consistent with the environment protection policy.252 Conversely, more stringent conditions than those required under an environment protection policy may be imposed if local conditions require a higher level of protection or the pollution control technology needed to achieve more stringent standards is commonly available in the industry.253 15.69 Applications must be determined solely on environmental grounds, unless consideration of other factors is authorised by the legislation. General policy [page 652] considerations, such as the economic impacts of standard setting, might be expected to have been dealt with before individual applications for licences are assessed; however, this is a matter of statutory interpretation. 15.70 The nature of the relationship between policy setting and licence determinations in Victoria was discussed in Phosphate Co-operative Co of Australia Ltd v Environment Protection Authority (1977) 138 CLR 134. The High Court held that neither the EPA, nor the Environment Protection Appeal Board, could take other than environmental considerations into account in determining the conditions to be attached to a licence to discharge polluting waste. Neither the economic consequences to the applicant or the general public, nor the public utility of the applicant’s operations, were valid considerations. Applications for licences had to be determined solely on environmental grounds. Similarly, in Coastal Waters Alliance of Western Australia v Environmental

Protection Authority (1996) 90 LGERA 136,254 the Supreme Court of Western Australia held that the EPA had exceeded its statutory authority in taking into account economic loss and extraneous commercial considerations in an attempt to find a political or commercial compromise to the anticipated environmental effects of a proposal to mine shell sand resources. The EPA had submitted a report to the minister, who was the determining authority, and to the extent that the minister’s decision relied on the EPA report his decision was unlawful. Compromise positions were for the relevant ministers themselves to determine, with the assistance of other advisers. The relevant provisions of the Environmental Protection Act 1986 (WA) did not authorise the EPA to engage in such a task. 15.71 This approach suggests that economic and other relevant factors may initially be taken into account in order to work out overall environmental quality objectives. However, once those objectives and the methods by which they will be attained have been determined, only those environmental objectives may be applied to individual licence applications. The ‘slightly disturbing spectre’255 of the Phosphate decision — that if environmental considerations are the only relevant factors to be taken into account in the determination of licence applications, then conditions may be attached to licences without any regard to the technical or financial resources of the applicant — should be met in the modern application of pollution control policy by the governing principle of BPEM256 and statutory criteria that include the public interest257 and ‘practical measures’258 as a relevant consideration. For example, it has been recognised in New South Wales that environment protection licences may set emission limits based on what might [page 653] be realistically achievable rather than optimal standards for environment protection, so long as such determinations entail consideration of environmental impacts and practical measures.259 15.72 Economic incentives Some ways in which economic measures260 may be built into the licensing process include the adoption of load-based licensing; by allowing industry to engage in emissions trading;261 by issuing ‘bubble’ licences;262 by allowing green offset schemes263 to be implemented; and by charging separate fees for environmental management264 and water reuse.265 Load-based licensing is a classic example of the ‘polluter pays’ principle in action — setting fees for licences that reflect the impact of the actual emissions on the surrounding environment rather than simply calculating fees based on administrative costs or the volume of emissions

produced, which may not account for their actual toxicity.266 Legislation in some states authorises the regulator to engage actively in these types of incentive-based programs.267 15.73 A tradeable emissions scheme is a scheme that creates a market for the trading of entitlements to emit pollution, and sets out the rights and duties of participants, including regulators, in the scheme.268 The purpose is to encourage regulatory goals to be met in the most cost-effective way by permitting the regulated community to determine the lowest-cost pollution abatement opportunities available to them. For such a scheme to work, polluters must be emitting the same type of pollution. Such a scheme has been operating successfully in the Hunter region for a number of years, where the participants — energy producers and coalmines — effectively emit the same type of pollution, that is, saline solutions.269 15.74 A green offset is action taken outside a development site to reduce pollution. Effectively, it may enable projects that cannot satisfactorily reduce pollution on-site to go off-site to generate acceptable environmental impacts.270 Any such scheme must be underpinned by stringent quality standards that ensure that an offset does not reward [page 654] poor performance or result in compromised standards. Impacts must also be offset on a ‘like for like’ basis. Another form of incentive is to ‘accredit’ reliable operators with incentives such as fee reductions and reduced administrative intervention.271 Similar incentives may be delivered through environmental agreements, which commit regulated enterprises to environmental improvements in return for financial incentives. In South Australia, for example, the regulatory authority may enter into an environment performance agreement with any party binding that party to undertake programs of any kind directed towards protection, restoration or enhancement of the environment; or binding the authority to provide financial or other assistance of any kind.272 15.75 Licence conditions Regulatory authorities have general powers to impose conditions on licences.273 Certain conditions may, in fact, be required or stipulated under the legislative scheme.274 In New South Wales, examples of specific licence conditions are given by the legislation, although these are not intended to be exclusive.275 Conditions may include not just compliance with environmental standards, but require the preparation of an environmental management plan, monitoring program and commission or

implementation of an environmental audit.276 In New South Wales, licence holders may also be specifically required to certify compliance with licence conditions or, if there have been breaches, indicate what mitigating or remedial [page 655] action has been taken.277 Such statements are, like mandatory environmental audits,278 available for use by the regulatory authorities in enforcement proceedings.279 15.76 Licensing authorities are given wide discretions in the determination of licence applications, but that does not mean that their powers are unfettered. It is an accepted canon of statutory interpretation that the conferment on an authority of a power to impose conditions, for example, ‘as it thinks fit’,280 does not confer unlimited discretion on the decision-maker. Conditions imposed must reasonably relate to the development or use for which the licence is issued and be reasonably certain in their application.281 Conditions that are merely extraneous to the purposes for which a licence is sought, or unclear in their application, may be struck down by a court or tribunal.282 It is also important that conditions attached to licences are reasonably certain in operation and in expression283 so that both the licensee and the licensing authority know whether any particular conduct is being carried out in accordance with the licence conditions.284 It is an offence to contravene the conditions of a licence,285 or to falsify records or documents kept or required to be submitted by licence conditions.286 15.77 Financial assurances The issuance of an environmental authorisation or licence may be made conditional on the lodgment of a financial assurance, for example, a bond, bank guarantee, policy of insurance, specified pecuniary sum, or other appropriate form of security, in order to guarantee compliance with regulatory [page 656] requirements.287 This requirement is usually only imposed when there is a significant risk of harm or a past history of contravention.288 The assurance required will be based on a reasonable estimate of the costs and expenses of remediation should the relevant work be required.289 The assurance will be available for use by the regulatory authority to cover clean-up costs should the polluter not comply with the conditions under which the assurance may be

discharged; that is, by complying with the legislation generally or any remediation or clean-up notice which that be issued.290 Should the assurance not cover entirely the reasonable costs of remediation, then the regulatory authority may be able to use statutory powers in relation to clean-up to recover costs.291

Exemptions 15.78 Some states allow for the possibility that specified activities may be exempted from specific provisions of the legislation.292 In practice, such a power is rarely exercised today; but might, for example, be applied where a detailed provision of a regulation unwittingly captures an operation it was not really intended to cover, possibly pending amendment of the regulation. The general exemption power is complemented by legislative powers to deal with emergencies293 and by powers to effectively allow breaches of regulatory standards and licence conditions to continue, subject to an [page 657] environmental management plan being prepared and implemented.294 Projects of particular economic significance to a state may be exempted from the application of the legislation entirely. In this case, a specific regime for pollution control and monitoring would be expected to be part of the government/industry agreement that allows the activity to proceed.295

Surrender, revocation, and suspension of licences 15.79 A licence, works approval, permit or other authorisation remains in force until it is revoked, suspended or surrendered.296 A licence may be revoked or suspended at the discretion of the regulatory authority,297 or for various reasons, including a breach of a condition;298 where the licence holder is convicted of an environmental offence;299 or if serious or material environmental harm occurs or is a risk.300 A holder of a licence may seek the surrender of the licence.301

Environmental monitoring and auditing 15.80 Pollution control legislation generally describes an environmental audit as an assessment of, investigation into, or evaluation of the sources, causes and extent of environmental harm. It also identifies the need for alteration of management practices or an EMP to guard against or rectify such harm.302 Environmental auditing [page 658]

enables industry not only to comply with legal requirements, but also, by reducing pollution and energy requirements, often helps companies become more efficient and thereby reduce costs. As part of environmental due diligence,303 audits can identify environmental risks associated with corporate activity, assess existing compliance and recommend strategies to improve compliance and remove risk. Auditing is an integral part of EMSs, such as the generic ISO 14001.304 15.81 Mandatory audits may be required by regulatory authorities where breaches of environmental authorisations, EPPs, EMPs or administrative orders are detected, likely, or reasonably suspected.305 Audits may then be used to require preparation of an EMP to achieve compliance with regulatory requirements. They also form the basis for issue of an environment protection order, amendment of licence conditions or other specified action.306 15.82 In New South Wales, the EPA, either on its own initiative or as directed by the minister, may undertake an environmental monitoring program to monitor the impact on the environment and human health of activities or works authorised or controlled by licences.307 In Queensland, if an event or activity has caused environmental harm, an environmental investigation may be required.308 Audits and investigations are collectively referred to as ‘environmental evaluations’.309 [page 659] In South Australia, an environmental audit and compliance program may be used to evaluate the performance of licensees with poor records of compliance.310 It can identify changes to management, production and other processes that will improve performance.311 15.83 In Victoria, the EPA is empowered to amend licences so as to require an audit to be carried out, and to publish the results at the end of that audit. This power is used principally where there has been a failure to participate in an industry-wide Environment Improvement Plan.312 An essential prerequisite for the use of such power, however, is a declaration by the Governor applying this provision to the specific industry. The Industrial Waste Management (Waste Minimisation) Policy also allows the EPA to direct occupiers of industrial premises that generate prescribed wastes to undertake an audit. A site audit may be required as part of the sale of industrial properties in order to identify the presence of contamination and assess whether clean-up is required prior to the site being committed to other uses.313 Auditors may not issue a certificate of audit if they are of the opinion

that environmental impairment exists or is likely to arise.314 An audit may also be requested to determine whether the beneficial uses of a particular segment of the environment are being protected.315 This may then result in either a directed or voluntary proposal for the development of a neighbourhood environment improvement plan.316 Mandatory audits, unlike voluntary audits (see 15.84 below) will not attract protection, which means that material disclosed by such audits may be used by the regulatory authorities in proceedings connected with the administration or enforcement of the legislation.317 15.84 Confidentiality of audit documents The main difficulty with the widespread use of compulsory audits is that the use of heavy criminal sanctions as a deterrent may force firms to protect their own interests by adopting an approach based on minimal cooperation with regulators and the revelation of as little information as possible. Since enhanced corporate performance leading to better environmental outcomes is clearly the purpose of audit requirements, regulatory authorities are keen to encourage voluntary environmental auditing as an increasing part of corporate culture. [page 660] However, the outcome of the High Court’s decision in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477,318 coupled with that of the Federal Court in Trade Practices Commission v Abbco Ice works Pty Ltd (1994) 52 FCR 96, was to the effect that corporations neither enjoy a privilege against self-incrimination, nor a privilege against selfexposure to a penalty.319 This clearly has serious implications for government policy that encourages the conduct of voluntary environmental audits. If a company voluntarily undertakes an audit that reveals deficiencies in environmental management that might be used to support a prosecution or other form of enforcement action, and those audit documents are likely to be seized by the prosecuting authority, then this will clearly discourage the carrying out of voluntary audits. 15.85 Corporations may turn to legal professional privilege to protect confidentiality in audit documents. This privilege attaches to communications made in confidence between a client and legal adviser for the sole purpose of obtaining legal advice or for use in litigation, existing or anticipated: Grant v Downs (1976) 135 CLR 674. The document must have come into existence for the sole purpose of obtaining legal advice. Privilege cannot be claimed for documents that were merely given to the lawyer in order to provide advice if they did not come into existence for that purpose. Clearly, audit reports and

the results of investigations will seldom satisfy this test. Only communications in documents may be privileged, not the facts contained therein.320 Steps have been taken, therefore, to protect voluntary environmental audits by precluding their seizure and use as evidence in any subsequent legal proceedings.321 Victoria has a stated policy to respect the confidentiality of audit documents that disclose corporate non-compliance and not use them as evidence in legal proceedings.322 In New South Wales, documents prepared for the sole purpose of a voluntary environmental audit323 are protected documents. This means that they may not be [page 661] obtained by any regulatory authority or used in evidence against any person in any proceedings connected with the administration or enforcement of the environment protection legislation.324 Such protection ceases if the person relying on protection uses any part of the documents in administration or enforcement proceedings, except to establish that it is a protected document.325 In the Northern Territory, unless an accused attempts to rely on them, the results of a voluntary audit are not admissible as evidence in criminal proceedings.326 15.86 In South Australia, the Australian Capital Territory and Tasmania, a person contemplating undertaking a voluntary audit may apply to the regulatory authority for protection.327 Such protection may be limited by conditions that restrict the kinds of information which may be included in the report, and specify how the report is to be compiled. In Tasmania and the Australian Capital Territory, the regulatory authority may also require a copy of the audit report to be provided to it.328 This is a sensible inclusion because if the enforcement authority cannot request a copy of the audit, how can it know what problems identified in the audit need to be addressed? In that case, why would the authority ever consent to statutory protection for the audit? Issuing protection for audit documents does not, of course, relieve the applicant of its duty to comply with conditions of environmental authorisations,329 which may require reporting the results of an environmental audit and compliance program.330 The Australian Capital Territory legislation also specifically provides that a grant of protection does not prevent the EPA from serving an environment protection order in relation to a matter addressed in the audit report. Since otherwise the service of such an order may be interpreted as ‘proceedings for

enforcement’, other regulatory authorities may have to exclude this possibility by way of conditions attached to the grant of protection. In Queensland, corporations will be protected from prosecution only in relation to the giving of a ‘program notice’ about an act or omission that constitutes an offence.331 In this event, the notice and any documents, such as audit reports, submitted to the regulatory authority are not admissible in evidence for a prosecution (but are admissible for an enforcement action). In return for protection, the program notice must declare an intent to prepare a transitional environmental program.332 [page 662] Note, however, that although audit reports themselves may be protected from disclosure, if information contained therein reveals evidence of regulatory breaches that would constitute an offence, and that evidence can be gathered otherwise than by reference to the audit documents, then the regulatory authority may still be able to prosecute for those breaches. Clearly, such a decision to prosecute will involve a balancing by the regulatory authority of the gains to be made from prosecution against the advantages of pursuing a voluntary approach to compliance. 15.87 Accreditation of environmental auditors As a relatively new discipline, the quality of environmental auditing may be expected to vary widely. Yet, on the conduct and results of an environmental audit may rest not only a favourable environmental outcome, but also the allocation of considerable financial resources by a corporation in order to meet the demands of legal compliance. Most states require auditors undertaking environmental audits to be accredited or otherwise have qualifications prescribed by regulation.333

Review of decisions 15.88 Applicants for environmental authorisations, such as pollution control licences and works approvals, and persons served with environment protection notices, for example, requiring clean-up, are generally entitled to appeal to a competent appeal body334 against a refusal of an application, the service of a notice or against the conditions of an authorisation or notice.335 Other interested persons are not generally entitled to seek review, even though they may have been entitled to peruse applications and lodge submissions. Some jurisdictions, however, do confer limited rights of appeal on

objectors. In Tasmania, any person may make representations about a draft environmental improvement program and follow that up with an appeal to the tribunal.336 In the [page 663] Australian Capital Territory, any person whose ‘interests are affected’ by the decision may seek review.337 In Western Australia, a person other than an applicant or licence holder ‘who disagrees’ with the requirements of (but not apparently the grant or issue of) a licence, works approval or pollution abatement notice may lodge an appeal with the minister.338 In Victoria, third parties may appeal against the issue of works approvals and against the issue of licences, where no works approval has been obtained. The grounds of appeal are that the interests of the complainant would be unreasonably and adversely affected, or that the discharge would infringe a state environment protection policy, industrial waste management policy or emission standard, or would cause pollution or an environmental hazard.339 In New South Wales, third parties may only challenge the issue of a licence through the appeal provisions under the EPAA, in respect of designated development.340 15.89 Lodging an appeal does not generally affect the operation of the decision or order appealed against or prevent action being taken to implement it, unless, perhaps, that appeal is in regard to a revocation, suspension or variation of a licence.341 However, a court may have power to stay or otherwise affect implementation of a decision if necessary, having regard to the environmental consequences, the interests of persons affected and the need to secure the effectiveness of the appeal.342 This form of appeal is conducted by way of a review of the merits of the original determination. This means that the appeal body may rehear the application and determine the matter afresh.343 Proceedings for judicial review of a determination based on some legal irregularity proceed under different provisions.344

Enforcement 15.90 Enforcement of the requirements of legislation or regulatory authorities encompasses administrative, civil and criminal sanctions. Because these forms of enforcement are common to all environmental legislation, they

are discussed in greater detail in Chapters 20–21.345 Principles relevant to pollution control are outlined below. [page 664]

Environment protection orders 15.91 Environment protection orders or notices346 are used to secure compliance with the terms of the legislation, including the general environmental duty; to order compliance with instruments issued under the environment protection legislation such as EPPs, environmental licences or authorisations and EMPs; to abate environmental nuisances; and to order remediation or clean-up.347 The order would generally be expected to specify its purpose, the environmental harm to which the order is directed, and any specific measures required,348 generally after consultation with the polluter. The overriding legal requirements in relation to administrative orders and notices are that the requirements specified should reasonably relate to the particular activity in respect of which the order is issued; that the requirements should be sufficiently certain to enable compliance; and that the requirements of the order should not be more demanding than the existing law.349 15.92 Before issuing a notice, the regulatory authorities would be expected to have taken into account a range of environmental management principles, stated criteria and regulatory instruments such as policies, standards and best practice.350 It is an offence to fail to comply with an environment protection order;351 and ultimately regulatory authorities may be empowered to undertake any necessary work and recover costs from the person served with the order.352 [page 665] A person who complies with an order, but who is not the actual polluter, may also be entitled to recover costs against the polluter.353 Holders of environmental authorisations or licences may have been required to lodge a financial assurance as a condition of licensing and in that event the assurance will be available to fund clean-up costs incurred by the regulatory authority.

Abatement notices and orders 15.93 An abatement notice or order is directed to the cessation or modification of activities that are causing pollution. Generally, the environment protection order fulfils this function. However, in New South Wales there are also separate provisions dealing with the issue of orders,

notices or directions in respect of fires in the open air,354 noise,355 and service or repair of motor vehicles.356 Abatement notices and orders may be directed to the prevention of excessive or offensive noise,357 air emissions358 and waste discharges.359 They may require the emission to cease or be reduced, compliance with relevant standards, performance of prescribed works, installation of specified equipment, cessation of certain activities, plant or equipment to be rendered inoperable, or other measures as specified.360 15.94 In Victoria, an abatement notice may be served on licensees who are complying with the conditions of their licence but where the collective impact of their emissions on the receiving environment is excessive.361 The EPA may order municipalities and other public bodies that are guilty of breaches of licence conditions not to make further connections or issue building or other permits that would increase the load [page 666] on the waste discharge system. It may also order them to cease discharging waste altogether if it is likely to become a danger to public health.362 Where waste discharged into a sewage works does not comply with prescribed standards, and is a significant factor in the sewerage authority’s failure to meet its licence conditions, the EPA may serve an abatement order on the occupier of premises from which the waste is being discharged.363 15.95 The existence of abatement notices and orders affecting land may be discovered by intending occupiers because the occupier of affected premises must inform intending occupiers of the existence of such a notice, and of steps taken to comply with it. Otherwise, a previous occupier may be liable to reimburse the reasonable costs of a new occupier in meeting the requirements of such a notice.364 15.96 Local authorities, as regulatory authorities under pollution control legislation, may also be able to issue environment protection and abatement orders. In addition, they usually have powers under local government legislation to issue similar orders requiring cessation of public nuisance type activities and other forms of pollution.365 15.97 In Western Australia, pollution abatement notices must also be registered on the title to the land and notice given to successors in title. While such a notice remains effective, subdivision or amalgamation of the land affected may not proceed.366 Failure to comply with a pollution abatement notice may be followed by a ministerial ‘stop order’ if conditions ‘seriously detrimental to the environment or dangerous to human life or health’ may

occur.367 Specific activities may be targeted for special enforcement measures. ‘Environmental protection directions’ may be issued prohibiting or regulating the carrying on of any specified activity or industry in any specified part of the state.368 [page 667]

Remediation 15.98 The environment protection or abatement order is generally the vehicle through which remediation is directed. In South Australia and Tasmania, orders may be registered so as to bind future owners and occupiers of the land to which the order relates.369 In that event, the order will operate as the basis for a charge on the land and thus secure payment to the authority of costs and expenses incurred in the event of non-compliance with the order.370 These expenses will be incurred where the authority has to take action itself to carry out the order.371 In New South Wales, charges may be created by registration of a costs recovery notice in respect of costs and expenses associated with failure to comply with the notice.372 They may also be created by court-based action for an offence against the legislation where there is an application for a restraining order.373 15.99 Statutory rights to remediation may also be grafted onto a successful criminal prosecution. Modern pollution control legislation allows the court to order a defendant convicted of a criminal offence to take specified steps to prevent and mitigate any harm to, or rehabilitate, restore or make good, any resulting environmental damage caused by the commission of the offence.374

Enforceable undertakings 15.100 In New South Wales and Victoria, the regulatory authority may seek an enforceable undertaking from a person who has committed an offence against the legislation.375 Compliance with the terms of an undertaking generally means that the regulatory authority will not prosecute the offence,376 but should the undertaking be dishonoured, the undertaking may be enforced by court action.377 Undertakings are discussed in greater detail at 20.18. [page 668]

Emergency powers 15.101 In most jurisdictions, the minister has statutory powers to issue directions in an emergency to prevent or minimise environmental harm,

protect human life and prevent damage to property.378 Authorised officers, and the regulatory authorities generally, may also have wide powers to take action.379 Such action may also be conferred generally by powers to initiate clean-up or undertake other forms of administrative action.380 Directions may generally authorise conduct or activities that would otherwise constitute a breach of the legislation. In the Australian Capital Territory, the provisions of an emergency plan may cover foreseeable occurrences.381

Criminal sanctions 15.102 Principles of criminal enforcement are explained in detail in Chapter 20. The important points to note about criminal liability for pollution offences are: Enforcement policy adopts the key principle of ESD that the ‘polluter should pay’; that is, that those who generate waste or pollution should pay the real costs of avoidance, containment and abatement.382 Most offences are strict liability offences. This means that evidence that the offender had a particular state of mind at the time the offence was committed is not relevant to liability. The offender is liable for committing the act that constitutes the offence. Evidence of a guilty mind, by way of intentional, reckless or negligent conduct, will enable the regulator to prosecute for a higher level offence, for which monetary penalties are set at a higher maximum, and the possibility of imprisonment is introduced. Corporations may be liable for the acts and state of mind of both employees and independent contractors. Maximum fines for corporate offences are always higher, commonly up to four times the amount set for individual offenders. Corporate managers can be made personally liable for offences committed by the corporation. Regulators have a discretion as to when and who to prosecute, and the basis on which this discretion is likely to be exercised is often explained in publicly available guidelines. Courts are generally given a wide range of penalties they can use apart from fines and imprisonment, extending, for example, to orders for remediation, publicising the offence, and community service. [page 669]

Corporations committing acts of pollution that are reasonably significant, or potentially significant, may expect fines in the region these days of $100,000 in addition to any other orders and costs, even after discounts for cooperation and timely clean-up.383 Offences in relation to marine pollution generally attract higher penalties because legislation specifies higher maximum penalties.384 Principles of sentencing demand an even-handed approach. A wide range of considerations are taken into account in sentencing, including the effects of the offence on the environment and the actions and subsequent remorse of the offender.

Offence of causing environmental harm 15.103 In the Australian Capital Territory, the Northern Territory, Queensland, South Australia, Tasmania and Western Australia,385 the environment protection legislation creates offences specifically for causing environmental harm independently from any offence provisions for causing environmental harm as the consequence of a breach of a licence or other control provisions. The highest penalties are for causing serious environmental harm (often including imprisonment as an alternative or in addition to a pecuniary penalty), with lower penalties for causing material environmental harm and still lower penalties for causing environmental harm or an environmental nuisance. Offences involving wilfulness, recklessness, knowledge or negligence in each category are subject to the highest penalties; offences not involving any particular state of mind (strict liability offences) have the lowest penalty provisions in any particular category. 15.104 In the Australian Capital Territory, penalties for the offence of causing environmental harm are provided for in a three-tiered structure. Knowingly or recklessly polluting the environment causing serious environmental harm carries a higher penalty than negligently polluting the environment and causing serious environmental harm, with the lowest penalty applying to the offence of polluting the environment and causing serious environmental harm.386 A similarly tiered structure applies to the offence of polluting the environment causing material environmental harm, and to the offence of polluting the environment causing environmental harm.387 [page 670] It is also an offence to cause an environmental nuisance,388 or to cause or allow a pollutant or the source of a pollutant to be placed in a position as a

result of which the pollutant may reasonably be expected to cause environmental harm.389 15.105 In the Northern Territory, the Environmental Offences and Penalties Act 1996 (NT) sets out a four-tiered penalty structure with the highest penalties imposed for a level 1 environmental offence and decreasingly less severe penalties for level 2, level 3 and level 4 environmental offences.390 Environmental offences are classified under the Waste Management and Pollution Control Act 1998 (NT); for example, it is an environmental offence level 1 for a person to intentionally pollute the environment, where serious environmental harm results, and he or she knows, or ought reasonably be expected to know, that serious environmental harm or material environmental harm will or may result from the pollution.391 15.106 In Queensland, the environment protection legislation imposes higher penalties for the offence of causing unlawful serious environmental harm wilfully than for the offence of causing unlawful serious environmental harm where there is no wilfulness on the part of the offender.392 Similarly, the penalties for the offence of causing unlawful material environmental harm or unlawful environmental nuisance are higher where the harm, or nuisance, is caused wilfully than where there is no intent on the part of the offender.393 Where a person is not found guilty of an offence of causing serious environmental harm the court may, in the alternative, find the person guilty of the offence of causing material environmental harm.394 In a proceeding for an offence requiring an element of wilfulness on the part of the defendant, it is open to the court to find the defendant guilty of the lesser offence, if the court is not satisfied as to the existence of wilfulness.395 15.107 In South Australia and Tasmania, the environment protection legislation contains a three-tiered structure for offences of causing environmental harm.396 The most heavily penalised offence is the offence of causing serious environmental [page 671] harm by polluting the environment intentionally or recklessly and with knowledge that serious environmental harm will or might result.397 A lower penalty is imposed where a person, by polluting the environment, causes serious environmental harm.398 The offence of causing material environmental harm by polluting the environment intentionally or recklessly and with the knowledge that material environmental harm will or might result, carries a lower penalty than the offence of intentionally causing serious

environmental harm,399 and a still lower penalty where the material harm is caused without intent.400 The lowest penalties are imposed for the offence of causing an environmental nuisance by polluting the environment intentionally or recklessly and with the knowledge that an environmental nuisance will or might result.401 In Tasmania, where a person is charged with an offence of intentionally or recklessly causing serious environmental harm, or intentionally or recklessly causing material environmental harm, the court may find the person guilty of the correspondingly lower penalty of causing the harm without intent.402 In South Australia, where a person is charged with causing serious environmental harm, the court may find the defendant guilty of causing material environmental harm.403 15.108 In Western Australia, causing or allowing serious environmental harm or material environmental harm to occur intentionally or with criminal negligence is an offence.404 It is also an offence to cause or allow serious or material environmental harm.405 Where the charge is for the offence of causing or allowing serious environmental harm the legislation also provides for an alternative conviction under the material harm offences.406 Penalties for offences are arranged under a three-tier structure.407 [page 672] 15.109 In New South Wales, offences under the Protection of the Environment Operations Act 1997 (NSW) are also classified in tiers; however, the classification is not dependent on the degree of environmental harm as that term is used in other jurisdictions.408 Tier 1 offences409 are offences of wilfully or negligently: (1) disposing of waste;410 (2) causing any substance to leak, spill or otherwise escape (whether or not from a container);411 or (3) causing any controlled substance (within the meaning of the Ozone Protection Act 1989 (NSW)) to be emitted into the atmosphere in contravention of the regulations under that legislation,412 in a manner that harms or is likely to harm the environment. All other offences are tier 2 offences,413 which do not expressly require proof of harm to the environment; for example, causing or permitting waters to be polluted or polluting waters.414 Tier 3 offences415 are tier 2 offences that are prescribed by regulation as being capable of being dealt with by way of a penalty infringement notice.416

15.110 There is no tiered structure for pollution offences under the Environment Protection Act 1970 (Vic) s 39(1). As in other jurisdictions, the Act contains discrete offences for air, water, land and waste; and in addition if the court, on conviction of a person for any of these offences, is satisfied that the offence was committed intentionally, it may impose a higher penalty.417 It is an indictable offence for a person to intentionally, recklessly or negligently pollute the environment or intentionally, recklessly or negligently cause or permit an environmental hazard that results in serious environmental damage or a substantial risk of serious environmental damage.418 [page 673]

General offences 15.111 In general, failure to comply with statutory instructions, or the requirements of the regulators, is always a criminal offence that is potentially enforceable. For example, in all jurisdictions, it is an offence to breach a licence, a permit or an environmental or other authority issued under the environment protection legislation; or to conduct specified activities without a valid authorisation or licence419 and to contravene a condition of an authorisation or licence.420 It may also be an offence to contravene EPPs;421 orders;422 notices;423 directions;424 or environmental programs.425 [page 674]

Court orders 15.112 In all jurisdictions, courts have a wide variety of remedies available to them that go beyond the traditional remedies of fines, jail terms and community service orders.426 For example, a court may order a person to: take specified action to remedy or mitigate the environmental harm or prevent further environmental harm;427 carry out specified action for the restoration or enhancement of the environment;428 take specified action to publicise the contravention;429 or pay such an amount as is determined by the court: –

for any reasonable costs and expenses incurred in taking action to remedy or mitigate the environmental harm or prevent further harm;430 or

–

for any injury, loss or damage to property or for costs reasonably

incurred by the person in taking action to prevent or mitigate such injury, loss or damage.431 [page 675] 15.113 In some jurisdictions, a regulatory authority432 or a person433 may make an application to the court for a restraining order.434 If a court is satisfied that a person has contravened or is contravening the environmental protection legislation or there is a likelihood that an offence will be committed unless restrained, then the court may make a restraining order to:435 (1) remedy or restrain an offence;436 (2) restrain a person from continuing to commit an offence;437 or (3) restrain a person from committing the threatened or anticipated offence.438 In Victoria, the regulatory authority may apply to the court for an injunction to restrain a person from contravening the Environment Protection Act 1970 (Vic) (the Act) or compelling a person to comply with the Act or any condition of an approval, licence, permit or notice whether or not proceedings for an offence against the Act have commenced.439 In New South Wales, any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the Protection of the Environment Operations Act 1997 (NSW).440 A court may also be empowered to order an offender to pay an additional penalty of an amount the court is satisfied represents the amount of any monetary benefits acquired by, or accrued to, the offender, as a result of the commission of the offence.441 [page 676]

PART B: MARINE POLLUTION FROM MARINE-BASED SOURCES 15.114 Sources of marine pollution that emanate, not from adjoining land but sources in or on the oceans, are commonly attributed to ships and other vessels and oil rigs. Globally, although some 80 per cent of marine pollution has its origins in land-based operations,442 marine pollution from ships and rigs provide some of the more spectacular and publicised incidents. The Convention for the Prevention of Pollution from Ships and the London

Dumping Convention are the two most significant treaties governing pollution from ships and other sources to which Australia is a party. The United Nations Convention on the Law of the Sea (UNCLOS) is also important for establishing general principles about liability and enforcement. Commonwealth legislation that implements treaty obligations includes the Protection of the Sea (Prevention of Pollution from Ships) Act 1983; Protection of the Sea (Powers of Intervention) Act 1981; Protection of the Sea (Civil Liability) Act 1981; Environment Protection (Sea Dumping) Act 1981; and Protection of the Sea (Oil Pollution Compensation Fund) Act 1993. All states have passed mirror legislation so that they may carry out Commonwealth international responsibilities under these conventions;443 this was a condition of the Offshore Constitutional Settlement: see 5.29 and following. In Morrison v Peacock (2002) 123 LGERA 127, the High Court, in rejecting a defence against a charge of oil pollution brought under the Marine Pollution Act 1987 (NSW) indicated that the context, objects and purpose, as well as the written text, of the MARPOL Convention were all relevant in construing the domestic law and that ‘treaties should be interpreted in a more liberal manner than that ordinarily adopted by a court construing exclusively domestic legislation’.444

MARPOL 15.115 The Convention for the Prevention of Pollution from Ships (generally referred to as MARPOL) was drawn up in the 1970s. Although some parts of it (annexes) took a long time to be adopted or enter into force, all parts of MARPOL are now effective in Australia.445 [page 677] 15.116 MARPOL regulates all forms of ship-based pollution, including, obviously, oil; but extending also to noxious liquids, packaged harmful substances, sewage, garbage and air pollution. Annexes 1 and 2, which regulate oil and chemical pollution, bind all parties. Since the parties that have ratified this Convention account for well over 90 per cent of merchant tonnage that sails the oceans of the world, coverage is obviously excellent; although since parties are not bound by amendments they have not accepted, the extent of their obligations may differ. Participation in the other annexes, governing noxious liquids, hazardous wastes, sewage, garbage and air

pollution, varies widely because these annexes are optional not mandatory. Australia, in fact, has adopted these annexes and the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth), and associated marine orders,446 provides for their implementation. 15.117 In relation to its mandatory provisions, MARPOL introduces the following measures designed to prevent marine pollution: new construction standards for new vessels; technical measures for storage and handling of pollutants; certification of vessels that comply with MARPOL standards; requirements for record keeping; control over transfer operations; periodic inspections of vessels to monitor compliance or confirm violations; prohibitions on discharges at sea, except for small quantities of oil discharged more than 50 miles from land, and that are not otherwise prohibited; prohibitions on any discharges into ‘special’ areas — basically enclosed and semi-enclosed seas, including the Mediterranean, North Sea and Antarctic; requiring waste management plans for vessels; placing emphasis on flag states to monitor compliance and prosecute breaches; allowing port states extensive powers of certification and inspection; and requiring the detention in port of defective vessels. These provisions are enacted in the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) Pts II and III and related state legislation. 15.118 A flag state is a country in whose jurisdiction a vessel is registered or whose flag it is entitled to fly. Vessels may fly flags that have no connection with the nationality of the ship’s crew and owners; but once registered in that country, the vessel effectively takes on the nationality of that country. It is the flag state therefore that has jurisdiction over the vessel, and that has international responsibility for enforcing MARPOL. A port state is a country into whose port the ship sails. Port states may

inspect vessels and detain those that violate MARPOL. A port state should inform the flag state of violations. [page 678]

Rights of intervention 15.119 Coastal states may take action even outside their territorial seas and exclusive economic zone (EEZ) to protect their coastlines and marine areas from oil pollution damage. The combination of UNCLOS art 221 and the 1969 Convention on Intervention on the High Seas in Cases of Oil Pollution Casualties, basically permits a coastal state to take whatever reasonable and proportionate measures are necessary on the high seas for limiting actual or reasonably apprehended damage to that state or its interests, including the economic interests of those who may be affected, natural resources and wildlife.447 These measures include the taking of action or the issuing of directions to Australian ships, ships on the high seas, ships in Australia’s internal or coastal waters, or foreign ships in connection with pollution breaches.448 This could include detaining or sinking a distressed vessel.449

Enforcement 15.120 States have powers under international law to regulate the conditions under which vessels enter their internal and territorial waters. These are part of the sovereign territory of a country, and national laws can therefore be applied to coastal waters, subject to the right of innocent passage through territorial waters that is guaranteed by UNCLOS art 52 and enjoyed by vessels of all nations. In designated environmentally sensitive areas, special precautions may have to be taken in exercising this right, but it cannot be denied. The Great Barrier Reef, for example, has been such an area since 1990; compulsory pilotage is required through certain areas of the reef.450 UNCLOS arts 218 and 220 also deal with the powers of countries to take enforcement action against polluters in the territorial seas, in the EEZ, and on the high seas. The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) s 27A uses the powers contained in art 220 to lay down the rights of the Australian Maritime Authority to detain and escort back to port, foreign vessels in territorial waters that are reasonably suspected of being in violation of MARPOL requirements. This right extends to the exclusive economic zone in circumstances where Australian territorial waters or natural

resources may be under threat of ‘major damage’. Article 218 even allows a port state to enforce violations wherever they take place, which would cover the high seas; although in this case, the flag state may insist on pre-empting this right.

Responsibility and liability for damage 15.121 The Convention on Civil Liability for Oil Pollution Damage governs claims for compensation arising out of oil pollution damage. These claims will be brought in [page 679] the courts of the country in which the damage occurs.451 Liability extends to the EEZ of the injured party, and claims can also be made for preventative measures taken to minimise damage as well as for actual loss. Pollution damage has been interpreted widely to cover not only clean-up and prevention, but also losses suffered by those who rely on the coast and marine areas and their assets for their livelihood, such as fishermen and hoteliers. Under the 1992 Protocol to the Convention, damage to the environment is also recoverable, but limited to reasonable costs of reinstatement. Unless otherwise exempted, ships of 24 metres or more in length which are in an Australian port are liable to pay a levy, provided that they are carrying at least 10 tonnes of oil in bulk.452 The levy goes towards a national marine plan.453 15.122 Basically, the owner of a vessel, which will be required to carry insurance, will carry liability. The shipowner will be liable, unless damage was deliberately caused by a third party or ‘act of God’.454 The owner, however, can limit liability based on a formula calculated on the tonnage of the ship, and an overall limit of around $125 million under more recent protocols, not all of which may have been ratified by state parties; thus lower limits may apply. Where claims for compensation exceed this limited liability, then the difference may be drawn from the International Oil Pollution Compensation Fund, a fund created by levies on oil importers in developed nations, including Australia.455 The fund may also be called on where the shipowner’s insurance is inadequate, and even where no liability under the Convention arises; except where the source of pollution is unidentified, thus leaving claimants potentially denied compensation in these circumstances. Compensation is limited to quantifiable measures taken to prevent or minimise pollution damage caused on Australia’s territory.456

The amount of compensation available from this fund amounts to some $1.4 billion.

Supplementary Fund 15.123 The purpose of the Supplementary Fund is to provide compensation to a person who has established a claim for compensation for certain oil pollution damage, but who has not been able to obtain full and adequate compensation from [page 680] the International Oil Pollution Compensation Fund because the damage does or may exceed the compensation limit for the Fund.457 The obligation to contribute money to the Supplementary Fund falls upon persons who receive more than 150,000 tons of oil in Australian ports and terminals.458 Payable contributions may be recovered as a debt payable to the Commonwealth, and a late payment penalty may be imposed.459 It is an offence for any person to fail to keep and retain proper records, or give information and returns to the AMSA, that are relevant to ascertaining a person’s liability to make contributions to the Supplementary Fund, if the regulations so provide.460 15.124 Claims for compensation are governed by the provisions of the 2003 Protocol to the Convention on Civil Liability for Oil Pollution Damage, adopted as having the force of law in the Commonwealth.461 Basically, the Protocol limits the aggregate amount of compensation payable in respect of any one incident to a total sum of 750 million units, taking into account the amount of compensation actually paid under the 1992 Liability Convention and the 1992 Fund Convention.462 Claims may be lodged with the Federal Court, or a Supreme Court of a state or territory.463 15.125 The 1996 Convention on Liability and Compensation for the Carriage of Hazardous and Noxious Substances by Sea governs losses that arise from carriage, not of oil, but other hazardous or noxious substances. The rules governing compensation are similar to those contained in the 1992 Protocol of the Oil Compensation Convention.

Criminal liability 15.126 Federal and state legislation make it an offence to unlawfully464

discharge oil or oily mixtures and untreated sewage into the marine environment.465 Both the owner [page 681] and master of the vessel are liable for this offence, which is one of strict liability466 for which a maximum penalty of $500,000 for an individual and $10 million for a corporate owner may be applied.467 In practice, although fines may be significant,468 clean-up costs are likely to far outweigh the criminal penalties imposed. For example, in the ‘Laura D’Amato’ case, Filipowski v Frateilli D’Amato [2000] NSWLEC 50, the owners were fined A$510,000 and the chief officer A$110,000 in respect of a spill of 294,000 litres; however, clean-up and port authority costs amounted to some $4.9 million.

Offshore Petroleum 15.127 The environment protection provisions of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) are discussed at 17.32. If there is an escape of petroleum in relation to a petroleum activity, the titleholder is required to do the following in any offshore area: (a) eliminate or control the escape; (b) clean up the escaped petroleum and remediate any resulting damage to the environment; and (c) carry out environmental monitoring of the impact of the escape on the environment. Failing this, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) may carry out the necessary actions and seek reimbursement from the titleholder.469 Remedial directions may be issued to petroleum titleholders or former petroleum titleholders about the following matters: (a) the removal of property; (b) the plugging or closing off of wells; (c) the conservation and protection of natural resources; and (d) the making good of damage to the seabed or subsoil.470 [page 682]

Sewage, garbage, harmful substances and air pollution 15.128 Under the provisions of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth), it is an offence to discharge sewage from a ship into the sea;471 although it is not an offence if untreated sewage is discharged at least 12 nautical miles from the nearest coastline, or beyond a three-mile limit if the sewage is treated using an Annex IV approved system or, if the vessel has a holding tank, it is discharged at a prescribed rate.472 Sewage may be required to be discharged at a reception facility.473 Similar provisions apply to disposal of garbage.474 In addition, however, larger vessels are required to keep on board a shipboard waste management plan475 and a garbage record book,476 and display appropriate placards alerting crew and passengers about disposal requirements.477 Jettisoning packaged harmful substances478 into the sea is also prohibited.479 Prevention of air pollution from ships is managed by applying strict criteria to the sulphur content of fuel oil; and by controlling fuel oil quality from suppliers.480

Anti-fouling systems 15.129 The Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 (Cth) (the Act) gives effect to Australia’s obligations under the International Convention on the Control of Harmful Anti-fouling Systems on Ships 2001481 (the Convention) to control the release of organotin compounds that act as biocides in the anti-fouling systems of ships (‘harmful anti-fouling compounds’ or ‘HAFCs’).482 The Act contains prohibitions on the application of HAFCs to ships483 and bans ships that do not comply with the anti-fouling requirements from entering or remaining in ports, shipyards and offshore terminals (‘shipping facilities’).484 [page 683]

Great Barrier Reef 15.130 Special legislation has been enacted to protect the Great Barrier Reef from pollution. The Great Barrier Reef Marine Park Act 1975 (Cth) (GBRMPA) regulates pollution through the absolute prohibition on certain polluting activities and a licensing system in special zoning areas.485 Mining

and geological storage operations are strictly controlled,486 waste disposal is strictly regulated487 and compulsory pilotage has been introduced for passage through the Great Barrier Reef.488

Radiation 15.131 All jurisdictions regulate radioactive substances.489 The Commonwealth legislation generally focuses on regulating nuclear installations, nuclear facilities and nuclear waste,490 nuclear explosive devices491 and uranium mining,492 while the state and territory legislation concentrates on the control of manufacture and end-use, although some jurisdictions also prohibit the installation of nuclear facilities.493 Approval for the taking of nuclear actions that are likely to have a significant environmental impact is required under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA).494 In Buzzacott v Minister for Sustainability, [page 684] Environment, Water, Population and Communities (No 2) [2012] FCA 403, the applicant challenged a decision of the minister to approve with conditions the expansion of the Olympic Dam copper, uranium, gold and silver mine and processing plant, and associated infrastructure, in South Australia and the Northern Territory. The basis of the complaint was that the decision left so much of the proposal comprising the approved action to be defined by proposed plans and studies, yet to be prepared or undertaken, that this was an unlawful exercise of the powers vested in the minister. The conditions were so uncertain that the minister could not have satisfied himself that the project should be approved. The court held (at [43]–[44]) that: … the extent or degree of certainty required in conditions for a lawful exercise of power depends very much on the statutory context. The statutory context here has two important features. First, the Act may apply to very substantial developments which may be carried out over a very long period of time. The proposed action … is an example. … Secondly, and almost certainly reflecting the first factor, the Act contains a wide power to impose conditions. The Minister may attach a condition to an approval if he or she is satisfied that the condition is ‘necessary or convenient’ to achieve the purposes identified …

And further (at [58]): It cannot be doubted that the power to impose conditions under the EPBC Act is a very wide one. The Minister may attach a condition to an approval if he or she is satisfied that it is ‘necessary or convenient’ to do so within subsections 134(1) and (2). The breadth of the power can be seen from the terms of subsection 134(3) which sets out examples of the types of

conditions which may be imposed. Paragraph (e) authorises a condition for the preparation, approval and implementation of a plan for managing the impacts of the approved action. The concept of management is a very wide one and includes matters such as monitoring and testing, reporting, preventative measures and remedial action. One thing seems to me to be clear and that is that the power is broad enough to encompass significant additions or variations to the approved action. Paragraph (f) authorises conditions requiring specified environmental monitoring or testing to be carried out. This power recognises that there are always risks to the environment, particularly with major developments, and that conditions or circumstances change and the operation of an approved action needs to recognise the risks and changing conditions and circumstances and adapt to them. Paragraph (g) authorises conditions which require compliance with a specified industry standard or code of practice. I do not think it exceeds the bounds of matters of which I can take judicial notice to note that industry standards and codes of practice often include requirements expressed in terms of results to be achieved rather than closely defined criteria.

The conditions of approval were sufficiently certain to enable the applicant to know what it had to do. Legislation casts general duties on persons who deal with a regulated radiation source to ensure that no harm results to the environment from the use of that source.495 [page 685]

Uranium mining 15.132 Under the Commonwealth Code of Practice on Radiation Protection and Radioactive Waste Management in Mining and Mineral Processing 2005, the operator of a facility or mine for the mining of uranium must comply with the Radiation Management Plan for the mine or facility.496 The purpose of the plan is to control the exposure of employees and members of the public to radiation by the inclusion of measures that are relevant to the degree of risk.

Ozone-depleting substances 15.133 The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) gives effect to the Vienna Convention for the Protection of the Ozone Layer (Vienna Convention) 1985, the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) 1987 and the Framework Convention on Climate Change.497 The Act introduces a range of controls on the manufacture, export, import and use of ozone-depleting substances and products that contain or use such substances.498 The Act also bans trade in certain ozone-depleting substances with non-Montreal Protocol countries.499

Regulations under the Act introduce regulatory requirements relating to the import, export, manufacture and disposal of scheduled substances, refrigeration and air-conditioning, methyl bromide, and fire protection.500 15.134 The national environment protection measure for ambient air quality (see 15.7) also sets standards, goals, monitoring and reporting protocols for six common pollutants: carbon monoxide, nitrogen dioxide, photochemical oxidants (as ozone), sulfur dioxide, lead and particles as PM 2.5 and PM10. [page 686]

Other hazardous substances 15.135 Australia is also a signatory to international agreements that control pollution through the imposition of prohibitions on the import, manufacture, use and export of certain other hazardous chemicals, such as persistent organic pollutants, and domestic legislation has been enacted to give effect to these international agreements.501 One of the express objects of the Industrial Chemicals (Notification and Assessment) Act 1989 (Cth) is also expressed to be to give effect to Australia’s obligations under international agreements relating to the regulation of chemicals.502

Dumping at sea 15.136 Dumping is described by the Convention on the Prevention of Marine Pollution by the Dumping of Wastes and Other Matter (the London Dumping Convention) as ‘the deliberate disposal at sea of wastes or other matter’. The purpose of this treaty is to prohibit all dumping and incineration of wastes at sea, whether from land-based or marine sources, unless there are simply no alternatives and the dumping is not harmful to the environment; the onus is on the dumper to prove this. The Convention is primarily aimed at disposal of human-made structures such as redundant ships, aircraft and oil platforms; creation of artificial reefs; and also the disposal of radioactive wastes, which is currently the subject of a moratorium on dumping under this Convention but banned by many regional agreements.503 Dumping at sea of permitted matter can still occur, but needs to be licensed by the relevant national authorities. The Waste Assessment Guidelines 1997, however, make it clear that permits should not be given if there are feasible

alternatives for reusing, recycling or other forms of treatment. Licensing is the responsibility of the state where the waste is loaded; though since a vessel may be regarded as a floating piece of sovereign territory, the flag state will also be able to regulate waste dumping under national laws. UNCLOS basically allows coastal states to apply licensing regulations under the Sea Dumping Convention to all territorial waters, the EEZ and the continental shelf. 15.137 In Re No Ship Action Group Inc and Minister for Sustainability, Environment, Water, Population and Communities [2010] AATA 702, the Commonwealth Administrative Appeals Tribunal heard an appeal about a permit granted to [page 687] New South Wales under the Environment Protection (Sea Dumping) Act 1981 (Cth) s 19 to enable the scuttling and placement of the decommissioned frigate HMAS Adelaide as an artificial reef off Avoca Beach near Terrigal in New South Wales. The No Ship Action Group Inc had sought review of the decision to grant the permit. The case against the artificial reef proposal was based principally upon concerns relating to potential harmful effects from red lead-based paint in the ship and copper based anti-fouling on the hull. The tribunal determined to allow the scuttling of the ship to proceed, but to vary the decision by imposing additional conditions to avoid possible harmful impacts on human health and the marine environment. 15.138 Enforcement of sea dumping depends largely on coastal states; and, on the high seas, on the flag state. No agreement has yet been reached on liability for damage. The Environment Protection (Sea Dumping) Act 1981 (Cth) has passed the provisions of the Convention into law in Australia.

Ballast water 15.139 Dumping of ballast water from vessels is now controlled under the Biosecurity Act 2015 (Cth). Under this Act it is an offence to discharge ballast water or sediment in Australian seas unless otherwise exempted under the Act.504 The Act envisages a scheme, to be introduced by regulation, for requiring Australian vessels to have approved ballast water management plans and certification to that effect;505 and requiring all vessels to keep records about ballast water operations.506 An authorised officer may direct a vessel not to discharge ballast water if satisfied that the vessel poses an unacceptable biosecurity risk or if persons on board are not familiar with, or have not

implemented, essential shipboard procedures outlined in the ballast water management plan.507

1.

For further and more detailed discussion of the law in these areas, see Bates, Pollution Control and Waste Disposal, in Halsbury’s Laws of Australia, LexisNexis, Sydney; White, Australasian Marine Pollution Laws, 2nd ed, Federation Press, Sydney, 2007.

2.

For example, Energy Grants (Cleaner Fuels) Scheme Act 2004 (Cth).

3.

The obligation to prevent, reduce and control pollution from land-based sources is encapsulated in the Law of the Sea Convention arts 207 and 213 (enforcement); though there are no particular global standards that need to be implemented. ‘Capacity’ and ‘need for economic development’ gives flexibility to parties in addressing appropriate standards; Law of the Sea Convention art 207(4). And see Orgill, ‘The Pernicious Problem of “Pointy” Pollution: An Assessment of the International and Australian Legal Regimes for Controlling Point-source, Land-based Marine Pollution’ (2015) 32 EPLJ 361.

4.

See .

5.

National Environment Protection Council Act 1994 (ACT); National Environment Protection Council (NSW) Act 1995 (NSW); National Environment Protection Council (NT) Act 1994 (NT); National Environment Protection Council (Qld) Act 1994 (Qld); National Environment Protection Council (SA) Act 1995 (SA); National Environment Protection Council (Tas) Act 1995 (Tas); National Environment Protection Council (Vic) Act 1995 (Vic); National Environment Protection Council (WA) Act 1996 (WA).

6.

National Environment Protection Council Act 1994 (ACT) s 14, except Environment Protection Act 1997 (ACT) s 13.

7.

A national environment protection standard is a standard consisting of quantifiable characteristics of the environment against which environmental quality can be assessed. A national environment protection goal is a goal that relates to desired environmental outcomes and that guides the formulation of strategies for the management of human activities that may affect the environment. A national environment protection guideline is a guideline that gives guidance on possible means for achieving environmental outcomes. A national environment protection protocol is a protocol that relates to the process to be followed in measuring environmental characteristics to determine whether a particular standard is being met or achieved or the extent of the difference between the measured characteristic of the environment and a particular standard or a particular goal: National Environment Protection Council Acts (NEPC Acts) ss 6(1) and 14(3), except National Environment Protection Council Act 1994 (ACT) ss 5(1) and 13(3).

8.

Schedule 4 s 26.

9.

Noise and emission standards for motor vehicles may only be developed in conjunction with the National Road Transport Commission and determined in accordance with the National Road Commission Act 1991 (Cth) and the Motor Vehicles Standards Act 1989 (Cth): National Environment Protection Council Acts s 14(1), except National Environment Protection Council Act 1994 (ACT) s 13(1). This latter Act empowers the Federal Minister for Transport to set air emission limits and noise standards for motor vehicles: ss 5, 7 and 8.

10. NEPC Acts s 16, except Environment Protection Act 1997 (ACT) s 15. 11. NEPC Acts s 17, except Environment Protection Act 1997 (ACT) s 16. 12. NEPC Acts ss 15, 18 and 19, except Environment Protection Act 1997 (ACT) ss 14, 17 and 18. 13. NEPC Acts s 28(1), except Environment Protection Act 1997 (ACT) s 27 (1). 14. NEPC Acts s 21, except Environment Protection Act 1997 (ACT) s 20. 15. To view the content of these measures, go to . And for an assessment of the implementation and effectiveness of NEPMs by jurisdiction, see . 16. NEPC June 1998. 17. See . 18. NEPC December 1999. 19. Clause 15. 20. NEPC June 1998. Wastes that are, or may be, excluded, are detailed in cll 8 and 9. 21. Schedules 1 and 2. 22. Clause 5. 23. See . Research by Chakroborty and Green, ‘Australia’s First National Level Quantitative Environmental Justice Assessment of Industrial Air Pollution’ 2014, Environ.Res.Lett 9(4), available at http://iopscience.iop.org/1748-9326/9/4/044010/>, which is based on emissions recorded under the NPI, suggests that air pollution is worst in areas of lower educational and social status. See also Sullivan, ‘The NEPM for the National Pollutant Inventory: Legal, Technical and Policy Issues’ (1999) 16 EPLJ 365; and see, for example, Environmental Protection Regulations 2008 (Qld) Ch 6; Environment Protection Act 1997 (ACT) s 159A. 24. NPI cl 7. 25. Industry handbooks provide advice or guidance on the information that an occupier of a facility is required to provide or retain for NPI reporting purposes. Emission estimation technique (EET) manuals are provided for that type of facility. Currently, a large number of EET manuals are available for different industry sectors: for a full list, see . 26. National Environment Protection (Diesel Vehicle Emissions) Measure 2001. 27. National Environment Protection (Air Toxics) Measure 2004. 28. NEPM cl 9. See, for example, Protection of the Environment (Waste) Regulation 2005 (NSW) Pt 5B. 29. Clause 10. 30. The latest version is the National Environment Protection (Used Packaging Materials) Measure 2011. Available at . 31. National Environment Protection Council Act 1994 (Cth) s 7(1). 32. National Environment Protection Council Act 1994 (Cth) s 7(2). 33. Environment Protection Act 1970 (Vic) s 17A(1). 34. Environmental Protection Act 1994 (Qld) s 43; Environment Protection Act 1993 (SA) s 28A. 35. Protection of the Environment Operations Act 1997 (NSW) s 11(3). A direction may be made by the minister for this purpose: s 22(1). In preparing a draft policy the Environment Protection Authority (EPA) must have regard to such NEPMs as the EPA considers relevant: s 13(1)(d). 36. Waste Management and Pollution Control Act 1998 (NT) ss 22 and 23. 37. Environmental Protection Act 1986 (WA) s 37A. 38. See National Environment Protection Council Act 1994 (Cth) s 7(2). 39. State and territory laws implementing NEPMs do not apply to the activities of the Commonwealth or Commonwealth authorities, either of their own force or because of the Commonwealth Places (Application of Laws) Act 1970 (Cth), except to the extent that they are applied under the provisions of the National Environment Protection Measures (Implementation) Act 1998 (Cth): see s 9.

40.

See R Fowler, ‘Law and Policy Aspects of National Standardisation’ (1995) Second Environmental Outlook Conference, Adelaide, at 16–18.

41. National Environment Protection Measures (Implementation) Act 1998 (Cth) Pts 2 and 3. 42. See National Environment Protection Council Act 1994 (Cth) ss 11 and 16. 43. See National Environment Protection Council Act 1994 (Cth) Pt 4. 44. See National Environment Protection Council Act 1994 (Cth) Pt 5. 45. See National Environment Protection Council Act 1994 (Cth) s 23. 46. See National Environment Protection Council Act 1994 (Cth) s 24. 47. See Fowler, note 40 above, at 18. 48. See, for example, Richardson, Ogus and Burrows, Policing Pollution, Clarendon Press, Oxford, 1982; Farrier, ‘Criminal Law and Pollution Control: The Failure of the Environmental Offences and Penalties Act 1989’ (NSW) (1990) 14 Crim LJ 317; Franklin, ‘Environmental Pollution Control: The Limits of the Criminal Law’ (1990) Current Issues in Criminal Justice 81; Chappell and Norberry, ‘Determining Polluters: The Search for Effective Strategies’ (1990) 13(1) UNSWLJ 97; Richardson, ‘Environmental Regulation Through Financial Institutions: New Pathways for Disseminating Environmental Policy’ (2002) 19 EPLJ 58. 49. See, for example, Brereton, ‘Self-regulation of Environmental and Social Performance in the Australian Mining Industry’ (2003) 20 EPLJ 261. 50. See Holley, ‘Public Participation, Environmental Law and New Governance: Lessons for Designing Inclusive and Representative Participatory Processes’ (2010) 27 EPLJ 360 at 362. 51. Environment Protection Act 1970 (Vic) s 1J. 52. See Chapter 9. Though note the recent dismantling in Queensland of a high level of integration of environmental approvals with development assessment under the Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 (Qld). And see England, ‘Regulatory Obesity, the Newman Diet and Outcomes for Planning Law in Queensland’ (2015) 32 EPLJ 60. 53. Traditionally, emissions of greenhouse gases (principally carbon dioxide from energy production) have not been regulated as pollutants and therefore are not dealt with in this chapter. Emissions of greenhouse gases are discussed further in Chapter 17. 54. See Gordon, ‘Innovative Economic Mechanisms for Addressing Agricultural Non-point Source Water Pollution’ (2005) 22 EPLJ 55. See also NSW Diffuse Source Water Pollution Strategy, available at . 55. On the topic of designing environmental policy to cope with current and future challenges, see the excellent books: Gunningham and Grabosky, Smart Regulation, Clarendon Press, Oxford, 1998; and Gunningham and Sinclair, Leaders and Laggards: Next Generation Environmental Regulation, Greenleaf Publishing, Sheffield, UK, 2002. See also Gunningham and Sinclair, ‘Regulating Water Pollution from Light Industry: Lessons from the Swan-Canning’ (2005) 22 EPLJ 328; Watson, ‘The New Regulatory Challenge: Designing Optimal Environmental Regulation for Small to Medium Sized Enterprises’ (2005) 22 EPLJ 350. See also Nelson, ‘Regulating Nonpoint Source Pollution in the US: A Regulatory Theory Approach to Lessons and Research Paths for Australia’ (2011) 35(2) University of Western Australia Law Review 340. 56. See, for example, . 57. See, for example, ; Environment Protection Act 1970 (Vic) s 19AB. 58. See .

Environment Protection Act 1970 (Vic) s 19AA; Protection of the Environment Operations Act 59. 1997 (NSW) Part 9.3B 60. See Chapter 20. 61. And see Preston, ‘Sustainable Development in the Courts: The Polluter Pays Principle’ (2009) 26 EPLJ 257. 62. For example, in Queensland, although a development approval is granted under the Sustainable Planning Act 2009 (Qld) and may have conditions imposed on it under that Act, where the development application is for an environmentally relevant activity, particular conditions, such as remediation and rehabilitation conditions, or a requirement to prepare a site management plan, may, or must, be imposed upon the development approval: Environmental Protection Act 1994 (Qld) s 73B. 63. For example, Protection of the Environment Operations Act 1997 (NSW) Dictionary: ‘water pollution’ ‘offensive noise’, ‘offensive odour’. 64. For example, in New South Wales, ‘pollution’ means water, air, noise or land pollution. In Protection of the Environment Operations Act 1997 (NSW) Dictionary, ‘land pollution’ means the degradation of land because of the disposal of waste on the land; ‘air pollution’ means the emission into the air of any air impurity; and ‘noise pollution’ means the emission of offensive noise. 65. Environment Protection Act 1970 (Vic) ss 39(1) (water), 41(1) (air) and 45(1) (land); Protection of the Environment Operations Act 1997 (NSW) Dictionary: ‘water pollution’. 66. Protection of the Environment Operations Act 1997 (NSW) Dictionary. See also the definition of ‘waters’. 67. The term ‘waters’ was interpreted to include an artificially constructed cooling pond built on privately owned land. See now Protection of the Environment Operation Act 1997 (NSW) Dictionary: ‘waters’, which includes water stored in artificial works. 68. Per Gleeson CJ at 498–9. 69. Environmental Protection Act 1986 (WA) s 3A. 70. Although in Environment Protection Authority v Munters Pty Ltd (1998) 98 LGERA 279, the New South Wales Land and Environment Court regarded this approach as ‘reading down’ the definition in New South Wales and preferred the ‘common-sense’ approach adopted in Electricity Commission (New South Wales) v Environment Protection Authority: see 15.20. 71. Note, however, that the effect of Palos Verdes in respect of ‘environmental harm’ in Western Australia, has been effectively reversed by defining ‘environmental harm’ to include (s 3A): (a) harm to the environment involving removal or destruction of, or damage to — (i)

native vegetation; or

(ii) the habitat of native vegetation or indigenous aquatic or terrestrial animals. 72. ‘Waste’ includes any substance that causes an alteration in the environment; discarded or unwanted matter, and any other substances as prescribed: Environment Protection Act 1970 (Vic) ss 4, 39(1), 41(1) and 45(1). 73. For example, Protection of the Environment Operations (General) Regulation 2009 (NSW) Sch 5 contains a list of prescribed matter for the definition of water pollution. See also Protection of the Environment Operations (Clean Air) Regulation 2010 (NSW); Environmental Protection Regulation 2008 (Qld) reg 78 (prescribed standard for particular offences in relation to air contamination); Transport Operations (Road Use Management — Vehicle Standards and Safety) Regulation 2010 (Qld) Sch 1 Pt 9 (emissions from motor vehicles); Environment Protection (Ships’ Ballast Water) Regulations 2006 (Vic); Environmental Management and Pollution Control Act 1994 (Distributed Atmospheric Emissions) Regulations 2007 (Tas).

74. For example, Water Quality Environment Protection Policy 2008 (ACT); Environmental Protection (Water) Policy 2009 (Qld); Environmental Protection (Air) Policy 2008 (Qld); Environment Protection (Water Quality) Policy 2003 (SA); Environment Protection (Motor Vehicle Fuel Quality) Policy 2002 (SA); State Policy on Water Quality Management 1997 (Tas); State Environment Protection Policy (Waters of Victoria) 1988 (Vic); State Environment Protection Policy (Groundwaters of Victoria) 1997 (Vic); Waste Management Policy (Ships’ Ballast Water) 2004 (Vic); State Environmental (Cockburn Sound) Policy 2005 (WA). 75. See, for example, Fairfield City Council v Florence Flowers Pty Ltd [2006] NSWLEC 707. 76. Environment Protection Act 1997 (ACT) s 5. See also, for example, Protection of the Environment Operations Act 1997 (NSW) Dictionary; ‘water pollution’. 77. For example, Protection of the Environment Operation Act 1997 (NSW) Dictionary: ‘noise pollution’; Environment Protection Act 1997 (ACT) s 4 (‘environmental nuisance’); Environment Protection Act 1970 (Vic) ss 46 and 48–48D; Environmental Protection Act 1986 (WA) s 49(2). 78. Environmental Protection Act 1986 (WA) ss 3(3) and 79. A finding that a quarry emits offensive noise and causes noise pollution is not necessarily sufficient to ground relief under either ss 252 or 253 of the Protection of the Environment Operations Act 1997 (NSW) (civil enforcement). In determining whether relief should be granted, it was relevant that the existence of the quarry, with its attendant noise, predated the purchase by the applicant of her property and the construction of her residence. ‘The quarry generated noise then as it does now. This is because, to put it in overly trite terms, noise is an inherent aspect of its operation’: McCallum v Sandercock [2011] NSWLEC 175. 79. For example, Protection of the Environment Operations Act 1997 (NSW) ss 268, 269, 276 and 277, Dictionary (definition of ‘offensive noise’); Protection of the Environment Operations (Noise Control) Regulation 2008 (NSW) cl 13; Environmental Protection Act 1994 (Qld) ss 440R–440ZC (controls regarding audible noise from building work, noise from air conditioners, refrigeration equipment and a range of other sources); Environmental Protection Regulation 2008 (Qld) Ch 5 Pt 3; Environmental Protection (Noise) Policy 2008 (Qld) s 9 (characteristic of the noise is a matter for consideration in determining certain applications under planning or environmental protection law); Environment Protection (Noise) Policy 2007 (SA) cll 3 (definition of ‘noise source’) and 12 (noise affected premises); Environmental Management and Pollution Control Act 1994 (Tas) s 53(2), 53(3) (unreasonable noise); Environmental Management and Pollution Control (Environmental Infringement Notices) Regulations 2006 (Tas) Sch 2 Pt 1 Div 2 (prescribed unreasonable noise); Environment Protection Policy (Noise) 2009 (Tas) cll 6–8, Pts 4 and 5; Environment Protection (Residential Noise) Regulations 2008 (Vic); State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No N-1 1989 (Vic); State Environment Protection Policy (Control of Music Noise from Public Premises) No N-2 1989 (Vic); Environmental Protection Act 1986 (WA) ss 3(3) (definition of ‘unreasonable noise’) and 79 (unreasonable noise); Environmental Protection (Noise) Regulations 1997 (WA) regs 5–7 (unreasonable noise), 9 (intrusive or dominant noise), 11–16 and 18. In the Northern Territory, causing ‘undue noise’ may be remedied under the Summary Offences Act 1923 (NT) by the issue of a noise abatement order: s 53D. ‘Undue noise’ means any noise that causes unreasonable distress, annoyance or irritation to any person by reason of its level or character or the time at which it is made: s 5. 80. Environmental Protection Act 1994 (Qld) s 11 (‘contaminant’); Environment Protection Act 1993 (SA) s 3; Environment Management and Pollution Control Act 1994 (Tas) s 3; Environment Protection Act 1997 (ACT) s 3, (‘pollutant’). See also Waste Management and Pollution Control Act 1998 (NT) s 4. 81. Environment Protection Act 1993 (SA) s 3; Environment Management and Pollution Control Act 1994 (Tas) s 3; Environment Protection Act 1997 (ACT) s 4. Queensland simply defines ‘contamination’ as the release of a contaminant into the environment: Environmental Protection Act 1994 (Qld) s 10. Contaminant is defined in s 11. See also Electricity Commission (New South

Wales) v Environment Protection Authority (1992) 28 NSWLR 494. 82. Environmental Protection Act 1994 (Qld) s 8(2); Environment Protection Act 1993 (SA) s 5(5); Environment Management and Pollution Control Act 1994 (Tas) s 5(5). 83. ‘Water pollution’ includes ‘placing any matter (whether solid, liquid or gaseous) in a position where … (ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters’: Protection of the Environment Operations Act 1997 (NSW) Dictionary. And see, for example, Environment Protection Authority v Brazel (No 2) [2002] NSWLEC 26 (pesticide placed in a position where it fell, descended or percolated into a street gutter and a culvert under the road and thence into waters); Newcastle City Council v Pace Farm Egg Products Pty Ltd [No 2] [2005] NSWLEC 241 (offence of placing egg waste in a position where it was likely to fall, descend, or be washed into waters). See also, for example, Environmental Protection Act 1994 (Qld) s 443 (a person must not cause or allow a contaminant to be placed in a position where it could reasonably be expected to cause serious or material environmental harm or environmental nuisance); Environmental Management and Pollution Control Act 1994 (Tas) s 51A; and see Jones v Glenorchy City Council [2006] TASSC 27; Hobart City Council v Budd [2008] TASSC 68. 84. Environmental Protection Act 1986 (WA) s 3(1). 85. See 16.25 and following. 86. Environmental Protection Act 1986 (WA) s 3A. 87. Protection of the Environment Operations Act 1997 (NSW) Dictionary: ‘harm’; Environment Protection Act 1997 (ACT) s 4 (‘environmental harm’), s 8(2) (environmental harm resulting solely from appearance and siting of artificial structures); Contaminated Land Management Act 1997 (NSW) s 4 (‘harm’); Environment Protection Act 1993 (SA) s 5; Environment Management and Pollution Control Act 1994 (Tas) s 5; Environmental Protection Act 1994 (Qld) ss 9 and 14(1); Waste Management and Pollution Control Act 1998 (NT) s 4. 88. See, however, the Queensland case of Barnes v Maroochy Shire Council [2001] QCA 273 that suggests that the concept could be applied to the unlawful felling of trees. 89. Environmental Protection Act 1986 (WA) s 3A(2)(a). And on native vegetation, see further Chapter 13. 90. For example, Environmental Protection Act 1994 (Qld) ss 437–440. 91. Protection of the Environment Operations Act 1997 (NSW) s 115. 92. Environment Protection Act 1970 (Vic) ss 4 and 53V. And on environmental auditing, see 15.80. 93. See Environmental Protection Act 1994 (Qld) ss 14–17A, Sch 1; Environment Protection Act 1993 (SA) s 5; Environment Management and Pollution Control Act 1994 (Tas) s 5; Environment Protection Act 1997 (ACT) ss 3 and 137–141; Environmental Protection Act 1986 (WA) ss 50A– 50D; Waste Management and Pollution Control Act 1998 (NT) s 4. 94. See, for example, Director of Public Prosecutions v Transadelaide [2004] SAERDC 92; Pallaras v Downer EDI Works Pty Ltd [2008] SAERDC 72; R v Moore [2001] QCA 431. 95. Environment Protection Act 1997 (ACT) Dictionary. 96. See, for example, Wagner v Transpacific Industries Pty Ltd [2008] SAERDC 66; R v Moore [2001] QCA 431; Budd v Northern Midlands Council [2008] TASSC 62; and for an example in the Northern Territory see . 97. Protection of the Environment Operations Act 1997 (NSW) s 147. 98. Environment Protection Act 1997 (ACT) Dictionary. 99. Environmental Protection Act 1994 (Qld) ss 16 and 17; Environment Protection Act 1993 (SA) s 5(4); Environment Management and Pollution Control Act 1994 (Tas) ss 5(3) and 5A; Protection

of the Environment Operations Act 1997 (NSW) s 147(1)(b); Waste Management and Pollution Control Act 1998 (NT) s 4(2). 100. Environmental Protection Act 1994 (Qld) s 15; Environment Protection Act 1993 (SA) s 3; Environment Management and Pollution Control Act 1994 (Tas) ss 5(2)(a) and 53(3) (noise); Environment Protection Act 1997 (ACT) Dictionary; Waste Management and Pollution Control Act 1998 (NT) s 4. And see, for example, Crowther v Queensland [2002] QPEC 79; DPP v SA Water Corporation [2004] SAERDC 36; Gard v Pivot Acquaculture (2003) 131 LGERA 197; Gard v Gibsons Ltd [2004] TASSC 108; Crowther v Queensland [2008] QPEC 79; Crowther v Queensland [2009] QPEC 31. 101. For example, Environmental Protection Regulation (Qld) Ch 7 Divs 1 and 2; Protection of the Environment Operations Act 1997 (NSW) s 6 (appropriate regulatory authority). 102. See, for example, 10.26 and 10.22. Integrated assessment is particularly appropriate in the case of State significant development; see 10.52. 103. See Chapter 18. 104. Environmental Protection Act 1994 (Qld) s 21, Sch 4 (‘standard criteria’); Environment Management and Pollution Control Act 1994 (Tas) s 4; Waste Management and Pollution Control Act 1998 (NT) s 4. 105. In Brown v Environment Protection Authority & North Broken Hill Ltd (No 2) (1992) 78 LGERA 119, for example, it was acknowledged that the New South Wales EPA had adopted a policy of setting standards according to ‘prosecutable reality’. This is the standard at which compliance can be achieved and enforced, rather than the standard that could be set with only environmental parameters in mind but that is not realisable and consequently not enforceable. The court accepted that BATEA meant the best technology already in use or available commercially. 106. Environmental Protection Act 1994 (Qld) s 21, Sch 4 (‘standard criteria’); Environment Management and Pollution Control Act 1994 (Tas) s 4. 107. Environmental Protection Act 1994 (Qld) s 331; Environment Management and Pollution Control Act 1994 (Tas) s 38; Waste Management and Pollution Control Act 1998 (NT) s 60(1)(c). 108. For example, Environmental Protection Act 1994 (Qld) Sch 4 (standard criteria); Waste Management and Pollution Control Act 1998 (NT) s 32(1)(h). 109. Environmental Protection Act 1994 (Qld) s 359. 110. Environmental Protection Act 1994 (Qld) s 21(2). 111. See 15.41. 112. See 15.43. 113. See 15.38. 114. Environmental Protection Act 1994 (Qld) s 319; Environment Protection Act 1993 (SA) s 25; Environmental Management and Pollution Control Act 1994 (Tas) s 23A; Environment Protection Act 1997 (ACT) s 22; Waste Management and Pollution Control Act 1998 (NT) s 12. See also Environmental Protection Act 1986 (WA) s 51(b). 115. Environmental Protection Act 1994 (Qld) s 319(2); Environment Protection Act 1993 (SA) s 25(2); Environment Protection Act 1997 (ACT) s 22(2); Waste Management and Pollution Control Act 1998 (NT) s 12(2). The Australian Capital Territory legislation provides that regard shall first be had, and greater weight shall be given, to the risk of the harm involved in conducting the activity. 116. Environmental Management and Pollution Control Act 1994 (Tas) s 20A. 117. Environmental Protection Act 1994 (Qld) s 331. 118. Environment Protection Act 1993 (SA) s 25(4); Environmental Management and Pollution Control

Act 1994 (Tas) s 23A(3); Environment Protection Act 1997 (ACT) s 22(3); Waste Management and Pollution Control Act 1998 (NT) s 12(3). The Environmental Protection Act 1994 (Qld) s 24(3) refers only to civil liability but arguably a similar position with regard to criminal liability may be inferred from the scheme of the legislation. 119. Waste Management and Pollution Control Act 1998 (NT) s 12(3). 120. Environment Protection Act 1993 (SA) s 25(4). 121. Environment Protection Act 1993 (SA) s 25(3); Environmental Management and Pollution Control Act 1994 (Tas) s 55A. 122. Environmental Protection Act 1994 (Qld) s 493A(3). 123. Environmental Protection Act 1994 (Qld) s 493A(4); Environmental Management and Pollution Control Act 1994 (Tas) s 55A; Environment Protection Act 1997 (ACT) s 33; Waste Management and Pollution Control Act 1998 (NT) s 13. 124. Environmental Management and Pollution Control Act 1994 (Tas) s 55A. 125. Blue Mountains Conservation Society Inc v Delta Electricity (No 3) [2011] NSWLEC 145. See also Environment Protection Authority v Ampol Ltd (1994) 82 LGERA 247, where the court appeared to impose a similar duty to avoid or minimise environmental harm, gleaned from the intent and purpose of the legislation. See also the defence of due diligence discussed at 20.71. 126. Environment Protection Act 1993 (SA) s 83; Environment Management and Pollution Control Act 1994 (Tas) ss 32 and 33; Environmental Protection Act 1986 (WA) s 72; Environment Protection Act 1997 (ACT) s 23; Waste Management and Pollution Control Act 1998 (NT) s 14. And see Environment Protection Authority v Bulga Coal Management Pty Ltd [2014] NSWLEC 5 (onus on prosecutor to prove awareness of pollution incident causing or threatening material environmental harm). 127. Environmental Protection Act 1994 (Qld) ss 320–320G. 128. Protection of the Environment Operations Act 1997 (NSW) s 148(2). 129. On environmental management systems (EMSs), see 15.52. 130. Protection of the Environment Operations Act 1997 (NSW) ss 148 and 151. The maximum penalty in New South Wales for failing to report a pollution incident is now $2 million for corporations and $500,000 for individuals: s 152. All licence holders must also prepare and implement pollution incident response plans: ss 153A–153F. 131. Protection of the Environment Operations Act 1997 (NSW) ss 10–41; Environmental Protection Act 1994 (Qld) ss 26–34; Environment Protection Act 1993 (SA) s 27, Sch 2 cl 5; Environment Protection Act 1970 (Vic) ss 16–19; Environmental Protection Act 1986 (WA) ss 26 and 37; Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 26, 39, 51, 51A, 69, 70 and 72; Environmental Management and Pollution Control Act 1994 (Tas) ss 96A–96O; State Policies and Projects Act 1993 (Tas) ss 5 and 11–14; Environment Protection Act 1997 (ACT) ss 24–30; Waste Management and Pollution Control Act 1998 (NT) ss 15–29 (environment protection objectives); Water Act 1992 (NT) s 73 (standards and so on declared under this legislation are environment protection objectives: Waste Management and Pollution Control Act 1998 (NT) s 18). And see Cox, ‘Environmental Protection Policies in Western Australia: Establishing Statutory Environmental Objectives for Land Managers’ (1994) 11 EPLJ 307. 132. Environment Protection Act 1970 (Vic) ss 18(1) and 20C. In Victoria, however, if the EPA intends to incorporate into an EPP any new measure that is stricter than an existing NEPM it must consult the NEPC: EPA s 17A(2). 133. Environment Protection Act 1970 (Vic) ss 49L–49S (solid industrial waste management plans), 50R–50RE (regional waste management plans); Environmental Protection (Air) Policy 2008 (Qld) Sch 1.

134. Protection of the Environment Operations Act 1997 (NSW) ss 11(4) and 35; Environment Protection Act 1993 (SA) Pt 5; Environmental Protection Act 1986 (WA) Pt 3; Environment Protection Act 1970 (Vic) s 16(1); Environmental Protection (Water) Policy 2009 (Qld) Sch 1. 135. Protection of the Environment Operations Act 1997 (NSW) s 11(4); Environmental Protection Act 1994 (Qld) ss 27 and 28; Environmental Management and Pollution Control Act 1994 Pt 7 Div 1A; Waste Management and Pollution Control Act 1998 (NT) s 16. 136. For example, State Environment Protection Policy (Waters of Victoria) 2003 (Vic); State Environment Protection Policy (Air Quality Management) 2002 (Vic). 137. Environmental Protection Act 1994 (Qld) Sch 4 (standard criteria); Environment Protection Act 1993 (SA) ss 28(2) and 34; Environment Protection Act 1970 (Vic) ss 38, 40, 44 and 46; Environmental Protection Act 1986 (WA) s 33; State Policies and Projects Act 1993 (Tas) s 14; Land Use Planning and Approvals Act 1993 (Tas) s 63(2); Waste Management and Pollution Control Act 1998 (NT) s 17(2). In New South Wales, policies may not create offences for contravention of the policy (s 36), but judicial notice must be taken of them: Protection of the Environment Operations Act 1997 (NSW) s 37. Policies are enforceable in any event in the same way that planning schemes are enforceable; that is, permission for development may be refused or conditioned by reference to policies or planning schemes. The binding nature of policies on the regulatory authority, however, may be more problematic in the absence of statutory directions that the authority is to apply the provisions of such policies: see Environmental Protection Act 1994 (Qld) s 34 (administering authority must give effect to the policy); Environment Protection Act 1993 (SA) ss 28–30; State Policies and Projects Act 1993 (Tas) s 11. Reference to the fact that the legislation binds the Crown and the statutory objectives of the legislation may assist. 138. Environment Protection Act 1997 (ACT) s 30 (all policies to be regarded as of an administrative rather than a legislative character). Management practices themselves may become the subject of mechanisms, detailed below in this chapter, to achieve compliance with regulatory standards or ongoing improvement in environmental management. In New South Wales, policies cannot create offences for contravention of the policy, but policies must be taken into account by decisionmakers and judicial notice must be given to them: Protection of the Environment Operations Act 1997 ss 28–32, 36 and 37. 139. Environmental Management and Pollution Control Act 1994 (Tas) s 96D(1). 140. Protection of the Environment Operations Act 1997 (NSW) ss 28 and 45(a); Environmental Protection Act 1994 (Qld) Sch 4 (standard criteria); Environment Protection Act 1993 (SA) s 27(2) (a); Environment Protection Act 1970 (Vic) s 20C; Environment Protection Act 1997 (ACT) ss 24 and 61(c); Environmental Protection Act 1986 (WA) s 60 (works approvals and licences must be consistent with approved policies); Waste Management and Pollution Control Act 1998 (NT) ss 32(1)(b) and 35(2). 141. Protection of the Environment Operations Act 1997 (NSW) ss 29–32. 142. Protection of the Environment Operations Act 1997 (NSW) ss 14–24 and 38; Environment Protection Act 1993 (SA) ss 28 and 29; Environment Protection Act 1970 (Vic) s 18A(2); Environmental Protection Act 1986 (WA) ss 26 and 27; Environment Protection Act 1997 (ACT) s 25; Waste Management and Pollution Control Act 1998 (NT) ss 19, 20, 27 and 28. In Victoria, a policy impact assessment on a draft policy must also be prepared: Environment Protection Act 1970 ss 18A(2) and 18C. 143. Environmental Protection Act 1994 (Qld) s 33; Environment Protection Act 1993 (SA) s 30; State Policies and Projects Act 1993 (Tas) s 11; Environment Protection Act 1970 (Vic) s 18D(5); Environmental Protection Act 1986 (WA) s 34. In New South Wales, a policy is not a statutory rule and is not therefore subject to the Subordinate Legislation Act 1989: Protection of the Environment Operations Act 1997 s 41. 144. Protection of the Environment Operations Act 1997 (NSW) ss 22(3) and 27; Environment

Protection Act 1993 (SA) s 31; State Policies and Projects Act 1993 (Tas) s 12; Environment Protection Act 1970 (Vic) s 18B. 145. Environment Protection Act 1993 (SA) s 28(9); Environment Protection Act 1970 (Vic) s 19 (10 years); Environmental Protection Act 1986 (WA) s 36. 146. For example, the Australian Plastics and Chemicals Industry Association, ‘Responsible Care’ program ; Australian Minerals Industry ‘Framework for Sustainable Development’, building upon the ‘Code for Environmental Management’ 1996 . 147. For example, Environmental Protection Act 1986 (WA) s 122A. The Victorian EPA, for example, has published guidance publications in relation to a number of environmental impacts on matters such as water, noise and waste; see . 148. Environmental Protection Act 1986 (WA) s 122A. 149. Environmental Protection Act 1994 (Qld) s 548. 150. Environmental Protection Act 1994 (Qld) s 318E; Environment Protection Act 1997 (ACT) ss 31– 33. And for approved industry codes of practice in Queensland, see . 151. For example, Pesticides Act 1999 (NSW) s 69(3). 152. Protection of the Environment Operations Act 1997 (NSW) s 35(d); Environment Protection Act 1970 (Vic) s 72. 153. Environment Protection Act 1997 (ACT) s 39(c)(i). 154. Environment Protection Act 1970 (Vic) ss 26A and 26B. 155. Environmental Protection Act 1994 (Qld) s 493A(3)(b), 493A(5); Environment Protection Act 1997 (ACT) s 33; Waste Management and Pollution Control Act 1998 (NT) s 13. 156. On environment protection orders, see 15.91. 157. Environment Protection Act 1997 (ACT) Pts VI (economic measures), VII (environmental protection agreements) and IX (environmental protection); Waste Management and Pollution Control Act 1998 (NT) Pts 6 (environmental audits), 7 (compliance plans) and 8 (performance agreements); Protection of the Environment Operations Act 1997 (NSW) Pts 9.3 (economic measures), 9.3A (tradeable emission schemes), 9.3B (green offsets), 9.4 (financial assurances), ss 67, 69 and 70 (conditions of licences may implement or relate to schemes for economic measures; and require mandatory environmental audits and financial assurances); Environmental Protection Act 1994 (Qld) s 330 (transitional environmental programs), s 292 (financial assurances); Environment Protection Act 1993 (SA) Pt 6 Div 5 (special conditions attached to environmental authorisation may include an environmental improvement program (s 54); financial assurance to secure compliance with the Act (s 51); tests, monitoring or audits (s 52); conditions requiring closure and post-closure plans (s 52A)); Environmental Management and Pollution Control Act 1994 (Tas) Pt 3 (environmental management); Environment Protection Act 1970 (Vic) s 4(1) (EMS), Pt III Div 1A (economic measures including tradeable emission schemes) and Pt III Div 1B (neighbourhood environment improvement plans (NEIPs)); Environmental Protection Act 1986 (WA) s 62A (condition of works approval and licences may include audit and monitoring requirements and compliance with EMSs, environmental management plans and environmental improvement plans); see also Environmental Protection Act 1986 (WA) Pt VA (financial assurances). 158. For example, Environment Protection Act 1997 (ACT) ss 68 (environmental improvement plan) and 81 (emergency plan); Waste Management and Pollution Control Act 1998 (NT) s 55 (compliance plan); Environmental Protection Act 1994 (Qld) s 608 (environmental management plans). See also Environmental Protection Act 1994 (Qld) s 401 (site management plan is used to manage the environmental harm that may be caused by a hazardous contaminant to the

contaminated land, by applying conditions on the use or development of, or activities carried out on, the land for which the particulars are recorded in the environmental management register); Environment Protection Act 1970 (Vic) Pt III Divs 1B (NEIPs) and 4A (environment and resource efficiency plans); see also Pt IX Divs 2AA (solid industrial waste management plans), 2AD (Metropolitan Waste and Resource Recovery Strategic Plan) and 2B (regional waste management plans); Environmental Protection Act 1986 (WA) s 65(1a) (plan for the prevention, control or abatement of an emission, pollution or environmental harm). 159. Protection of the Environment Operations Act 1997 (NSW) s 68 (the conditions of a licence may require the licensee to develop and submit to the appropriate regulatory authority a pollution reduction program). Conditions of licences may also require environmental monitoring programs: s 69(d), Pt 9.3C. In Queensland, South Australia and Tasmania, the legislation provides that an EMP, or transitional environmental program, is a specific program that, when approved, achieves compliance with the legislation for the matters dealt with by the program by reducing environmental harm or detailing the transition to an environmental standard: Environmental Protection Act 1994 (Qld) s 330; Environment Protection Act 1993 (SA) s 54 (environment improvement program); Environmental Management and Pollution Control Act 1994 (Tas) s 37 (environmental improvement program). 160. Environment Protection Act 1970 (Vic) s 4(1) (EMS is the organisational structure, policies, practices, processes and procedures for implementing environmental management, including systems for designating responsibility for and allocating resources to, environmental management). 161. Protection of the Environment Operations Act 1997 (NSW) Pts 9.3 (schemes for economic measures), 9.3A (tradeable emission schemes), 9.3B (green offset schemes) and s 69 (schemes for economic measures and environmental monitoring programs may be implemented by conditions of a licence). 162. In Queensland, for example, the holder of an approval for a transitional environmental program must achieve full compliance with the Environmental Protection Act 1994 (Qld) for the matters dealt with by the program at the end of the period over which the program is carried out: Environmental Protection Act 1994 (Qld) s 349. 163. For example, Protection of the Environment Operations (General) Regulation 2009 (NSW) cl 60 (methodology for testing for matter in waters). 164. For example, Environment Protection Act 1970 (Vic) ss 49R, 50BI and 50RE (refusal to issue works approval for facilities that are inconsistent with, or do not observe, a plan). Legislation generally also specifies that failure to comply with a measure will be a criminal offence. 165. For example, Environment Protection Act 1997 (ACT) s 38(1) (environmental protection agreement); Waste Management and Pollution Control Act 1998 (NT) s 66(1) (performance agreement); Environment Protection Act 1993 (SA) s 59(1) (environment performance agreement); Environmental Management and Pollution Control Act 1994 (Tas) s 28(1) (environmental agreement). In Victoria, sustainability covenants, climate covenants and industry waste reduction agreements are provided for under the waste control provisions of the Environment Protection Act 1970 (Vic) Pt IX Divs 1A and 4. 166. Holley and Gunningham, ‘Environment Improvement Plans: Facilitative Regulation in Practice’ (2006) 23 EPLJ 448 at 450. 167. See Holley and Gunningham, ‘Environment Improvement Plans: Facilitative Regulation in Practice’ (2006) 23 EPLJ 448; and see also Holley, ‘Aging Gracefully? Examining the Conditions for Sustaining Successful Collaboration in Environmental Law and Governance’ (2009) 26 EPLJ 457 at 477. 168. Environment Protection Act 1970 (Vic) s 31C. 169. Environment Protection Act 1970 (Vic) ss 51A–51G.

170. Environment Protection Act 1970 (Vic) s 51F. 171. See 20.92 and following; and, for example, Environment Protection Authority v BHP Steel (AIS) Pty Ltd [2004] NSWLEC 37. 172. Protection of the Environment Operations Act 1997 (NSW) s 75(2); Waste Minimisation Act 2001 (ACT) Div 2.1. 173. Protection of the Environment Operations Act 1997 (NSW) s 68 (pollution studies and reduction programs); Environmental Protection Act 1994 (Qld) ss 330–357 (transitional environmental program; it is an offence to contravene such a program: s 432); Environment Protection Act 1970 (Vic) s 31C; Environment Protection Act 1993 (SA) s 54; Environment Management and Pollution Control Act 1994 (Tas) ss 37–42A; Environment Protection Act 1970 (Vic) s 31C; Environment Protection Act 1997 (ACT) ss 68–72; Waste Management and Pollution Control Act 1998 (NT) ss 58 (minister), 59 (court) and 61 (compliance plans). 174. Environmental Protection Act 1994 (Qld) s 349; Environment Protection Act 1993 (SA) ss 44 and 54; Environment Management and Pollution Control Act 1994 (Tas) s 37; Environment Protection Act 1997 (ACT) ss 51(a)(ii), 69 and 71; Waste Management and Pollution Control Act 1998 (NT) s 56; Environment Protection Act 1970 (Vic) s 31C. On BPEM, see 15.33. 175. Environmental Protection Act 1994 (Qld) s 331; Environment Management and Pollution Control Act 1994 (Tas) s 38; Waste Management and Pollution Control Act 1998 (NT) s 60. In Queensland, performance indicators must also be specified: Environmental Protection Act 1994 s 81(c). 176. Environmental Protection Act 1994 (Qld) s 338. 177. See Holley and Gunningham, ‘Environment Improvement Plans: Facilitative Regulation in Practice’ (2006) 23 EPLJ 448 at 450–1; although sustaining a high level of stakeholder involvement over time is likely to be difficult, particularly as issues get resolved: see above at 457. 178. See Holley, ‘Public Participation, Environmental Law and New Governance: Lessons for Designing Inclusive and Representative Participatory Processes’ (2010) 27 EPLJ 360 at 371, in relation to the power under the Environment Protection Act 1970 (Vic) s 31C. 179. Environmental Protection Act 1994 (Qld) s 333. 180. Environment Protection Act 1993 (SA) s 44. 181. Environment Protection Act 1997 (ACT) s 46(b). 182. Waste Management and Pollution Control Act 1998 (NT) s 57. 183. Environmental Protection Act 1994 (Qld) s 335; Environment Management and Pollution Control Act 1994 (Tas) ss 40 and 41. In the Australian Capital Territory, a plan that forms part of an application for an environmental authorisation may become public through the public consultation process relating to that application: Environment Protection Act 1997 (ACT) s 48. 184. Environmental Protection Act 1994 (Qld) s 523, Sch 2; Environment Management and Pollution Control Act 1994 (Tas) ss 40–41; Environment Protection Act 1997 (ACT) s 135(r)–(u); Waste Management and Pollution Control Act 1998 (NT) s 108(1)(k)–(n). 185. Environmental Protection Act 1994 (Qld) s 347. 186. Environment Management and Pollution Control Act 1994 (Tas) s 42; Environment Protection Act 1997 (ACT) s 71(3); Waste Management and Pollution Control Act 1998 (NT) s 63. Plans required by notice of variation to a condition of a licence may be enforced as a breach of a licence condition: see, for example, Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695. 187. Environmental Protection Act 1994 (Qld) ss 350–357. The Planning and Environment Court may set aside an immunity from prosecution if the court is satisfied that the event was done wilfully with the intention of relying on the immunity afforded by the program notice, or if the nature and extent of environmental harm make it inappropriate to allow such immunity to be granted: ss 355

and 356. 188. Environmental Protection Act 1994 (Qld) s 351(1). Information obtained by the regulatory authority consequent on submission of the program notice, however, is not privileged: s 351(2). 189. Waste Management and Pollution Control Act 1998 (NT) s 62. 190. Environmental Protection Act 1994 (Qld) s 346; Environment Management and Pollution Control Act 1994 (Tas) s 42. 191. Environment Protection Act 1970 (Vic) ss 19AD–19AK. 192. Gunningham et al, ‘Neighbourhood Environment Improvement Plans: Community Empowerment, Voluntary Collaboration and Legislative Design’ (2007) 24 EPLJ 125. 193. Gunningham, note 195 below, at 128. And for further explanation, see Holley, ‘Public Participation, Environmental Law and New Governance: Lessons for Designing Inclusive and Representative participatory processes’ (2010) 27 EPLJ 360 at 370. 194. Environment Protection Act 1970 (Vic) s 19AD. 195. Environment Protection Act 1970 (Vic) ss 18AF and 19AG. The requirement that the EPA must publish notice of its approval of a plan in the Government Gazette (s 19AI(4)) is said by Gunningham (note 193 above) to be intended to bind the participants in law to the provisions of the plan. 196. Holley, ‘Aging Gracefully? Examining the Conditions for Sustaining Successful Collaboration in Environmental Law and Governance’ (2009) 26 EPLJ 457 at 477. 197. Holley, note 196 above. 198. Environment Protection Act 1970 (Vic) Pt IX Div 1A. And see . 199. Section 49AD. 200. Section 49AH. 201. An EMS may be described as a self-regulating, self-correcting approach to environmental improvement that is based on established principles of total quality management and continuous improvement: see Gunningham and Sinclair, ‘Environmental Management Systems, Regulation and the Pulp Industry: ISO 14001 in Practice’ (1999) 16 EPLJ 5; see also Sullivan, ‘Environmental Management Systems: Theory, Practice and Implications for Law and Policy’ (2001) 18 EPLJ 594. 202. See 20.92 and following. 203. For more information, go to . 204. An environment protection standard may be defined as a standard that consists of identifiable or quantifiable characteristics of the environment against which environmental quality can be assessed: Protection of the Environment Operations Act 1997 (NSW) s 9. This is consistent with the definition given in the IGAE. 205. AGPS, Canberra, 1969–70. 206. Environmental Protection Act 1994 (Qld) s 547; Environment Protection Act 1993 (SA) s 112; State Policies and Projects Act 1993 (Tas) s 29. 207. For example, Environmental Protection Act 1986 (WA) s 51(a). 208. See Chapter 20. 209. Environment Protection Act 1997 (ACT) s 149 (holders of environmental authorisations to supply details of proposed changes); Environmental Protection Regulation 2008 (Qld) reg 51(1)(c) (requirement to consider the nature and management of, including the use and availability of

technology relating to, the processes being, or to be, used in carrying out an activity); Environment Protection Act 1993 (SA) s 35, Sch 1; Waste Management and Pollution Control Act 1998 (NT) ss 30(2) and 41, Sch 2 Pt 1; Environment Protection Act 1970 (Vic) ss 19A–19G; Environment Protection (Scheduled Premises and Exemptions) Regulations 2007 (Vic); Environmental Protection Act 1986 (WA) ss 52–55; Environmental Protection Regulations 1987 (WA) reg 4 Sch 1. In Victoria, the necessity to obtain works approval will be removed where the works are already the subject of a research, development and demonstration approval (Environment Protection Act 1970 (Vic) ss 19D–19G); and may be avoided where the licensee is accredited under the accredited licensing concept: Environment Protection Act 1970 (Vic) ss 26A–26E. 210. Environment Protection Act 1997 (ACT) s 149. 211. Environment Protection Act 1997 (ACT) ss 60–65. 212. Protection of the Environment Operations Act 1997 (NSW) ss 44 and 47; Environment Protection Act 1993 (SA) ss 35 and 54C. 213. Protection of the Environment Operations Act 1997 (NSW) ss 47–49; Environment Protection Act 1997 (ACT) ss 42–45; Waste Management and Pollution Control Act 1998 (NT) s 30; Water Act 1992 (NT) ss 4 (‘waste’), 62, 65; Environmental Protection Act 1994 (Qld) ss 426–427; Environment Protection Act 1993 (SA) ss 36 and 68–71 (approved beverage containers), 75 (environmental authorisation may be an exemption), Sch 1 Pt A (prescribed activities of environmental significance); Environment Management and Pollution Control Act 1994 (Tas) ss 25–27, 76, 77 and 80, Sch 2; Environment Protection Act 1970 (Vic) ss 19A, 20, 53A–53E and 53I; Environmental Protection Act 1986 (WA) ss 52, 53 and 56. 214. For example, Environmental Protection Act 1994 (Qld) Ch 3. 215. This means that the process for EA under the environmental legislation may be varied if relevant information has already been collated under the planning legislation; see for example Environmental Protection Act 1994 (Qld s 150. And on EA and EIA see Chapters 10–11. 216. Protection of the Environment Operations Act 1997 (NSW) Sch 1; Environment Protection Act 1997 (ACT) s 42, Sch 1; Environmental Protection Regulation 2008 (Qld) Ch 3, Sch 2; Environment Protection Act 1993 (SA) ss 36 and 74 (prescribed substances), Sch 1; Environment Management and Pollution Control Act 1994 (Tas) s 3 (controlled substance), Sch 2; Waste Management and Pollution Control Act 1998 (NT) Sch 2; Environment Protection Act 1970 (Vic) s 4 (ozone depleting substances). 217. For example, Protection of the Environment Operations Act 1997 (NSW) Sch 1; Environmental Protection Regulation 2008 (Qld) Ch 3, Sch 2. 218. Protection of the Environment Operations Act 1997 (NSW) s 5, Sch 1; Environmental Protection Regulation 2008 (Qld) Ch 3, Sch 2; Environment Protection Act 1997 (ACT) Sch 1; Water Act 1992 (NT) s 63(1); Environment Management and Pollution Control Act 1994 (Tas) Sch 2. 219. Protection of the Environment Operations Act 1997 (NSW) ss 43(d) and 122 (non-scheduled activities to control water pollution); Environment Protection Act 1997 (ACT) s 43; Environmental Protection Regulation 2008 (Qld) Ch 3, Sch 2; Environment Protection Act 1993 (SA) s 36, Sch 1; Environment Protection Act 1970 (Vic) s 20; Environment Protection (Scheduled Premises and Exemptions) Regulations 2007 (Vic); Environmental Protection Act 1986 (WA) s 56, Sch 2 (subject matter of regulations). In Queensland, authorisations are required for ‘environmentally relevant activities’ (ERA) which are: (1) an agricultural ERA as defined under Environmental Protection Act 1994 (Qld) s 75; (2) a resource activity as defined under Environmental Protection Act 1994 (Qld) s 107; (3) an activity prescribed under Environmental Protection Act 1994 (Qld) s 19 as an environmentally relevant activity: s 18; and see Environmental Protection Regulation 2008 (Qld) cll 14–25.

220. Protection of the Environment Operations Act 1997 (NSW) s 43 (types of licences); Environment Protection Act 1997 (ACT) ss 42(2) (environmental protection agreement as an alternative to an authorisation for certain activities), 46 (different types of authorisation); Environmental Protection Act 1994 (Qld) s 121 (types of applications); Environmental Protection Regulation 2008 (Qld) Sch 2; Environment Management and Pollution Control Act 1994 (Tas) ss 3, 24–26 and 27A–27K (classes of assessment); Waste Management and Pollution Control Act 1998 (NT) s 31 (different types of licences); Development Act 1993 (SA) s 38. In the Environmental Management and Pollution Control Act 1994 (Tas) (EMPCA), local authorities deal with level 1 activities unless called in by the Director of Environmental Management: s 24(1). Level 2 activities, listed in Sch 2, must be referred to the director for assessment: see EMPCA s 25. The level of assessment is governed by the class of assessment assigned to the activity: EMPCA ss 27A–27K. In the Australian Capital Territory, an environmental protection agreement may be used as an alternative to licensing for certain activities: Environment Protection Act 1997 (ACT) s 42(2). 221. Environmental Protection Act 1994 (Qld) ss 122, 123, 170 and 171. The risk here of course is that this allows applicants to self-assess their own proposals, and any failure to meet the standard conditions will not be picked up, if at all, until the proposal is up and running. 222. Protection of the Environment Operations Act 1997 (NSW) s 318; EMPCA s 24(1). 223. Protection of the Environment Operations Act 1997 (NSW) s 6(2) and (4). 224. Environment Protection Act 1997 (ACT) s 92. 225. See, for example, Gard v Pivot Acquaculture (2003) 131 LGERA 197. 226. See Chapter 3. 227. Environment Protection Act 1997 (ACT) ss 48 and 59 (notice of outcome of review of authorisation); Environmental Protection Act 1994 (Qld) Ch 5 Pt 6 Div 6; ss 254, 255, 310F and 310G; Environment Protection Act 1993 (SA) s 39 (except applications for exemptions or applications for a licence to conduct a waste transport business); Environment Protection Act 1970 (Vic) ss 19B, 20 and 20A. 228. Environment Protection Act 1993 (SA) s 64; Environment Protection (General) Regulations 1994 (SA) reg 10; Environment Protection Act 1970 (Vic) ss 19B(4)–(4C) and 20(8)(ca)–(h); Environmental Protection Act 1986 (WA) ss 54(2)(b) and 57(2)(b); Waste Management and Pollution Control Act 1998 (NT) s 32(2). 229. Environment Protection Act 1970 (Vic) ss 19A–19D and 20B. 230. Environmental Protection Act 1994 (Qld) ss 189 and 526. 231. Protection of the Environment Operations Act 1997 (NSW) s 78. Failure to comply with the public consultation requirements cannot be the subject of proceedings under the Act: s 78(5). In the Australian Capital Territory, only notice of the outcome of a review is required to be publicly advertised: Environment Protection Act 1997 (ACT) s 59. Unlike New South Wales, however, public consultation is required for the initial authorisation: Environment Protection Act 1997 (ACT) s 48. 232. Protection of the Environment Operations Act 1997 (NSW) s 58(6). 233. Such developments are known as ‘controlled development’: Protection of the Environment Operations Act 1997 (NSW) ss 50 and 51. In most states, developments of environmental significance may also be required to undergo a public process of EIA, which may also lead to public scrutiny of proposals for pollution control: see Chapter 11. 234. Protection of the Environment Operations Act 1997 (NSW) ss 308 and 309; Waste Management and Pollution Control Act 1998 (NT) s 9, Sch 1; Water Act 1992 (NT) s 95; Water Regulations 1992 (NT) reg 17; Environmental Protection Act 1994 (Qld) s 540; Environment Protection Act 1993 (SA) s 109; Environment Management and Pollution Control Act 1994 (Tas) s 22; Environment Protection Act 1970 (Vic) ss 23 and 53D; Environmental Protection Act 1986 (WA) s 70;

Environment Protection Act 1997 (ACT) ss 19–21. 235. Protection of the Environment Operations Act 1997 (NSW) s 287(3). 236. Land Use Planning and Approvals Act 1993 (Tas) s 59. 237. Protection of the Environment Operations Act 1997 (NSW) s 77; Environment Protection Act 1997 (ACT) s 52; Water Act 1992 (NT) s 63(3); Environmental Protection Act 1994 (Qld) s 201; Environment Protection Act 1993 (SA) s 43; Environment Protection Act 1970 (Vic) ss 19C, 26 and 53G; Environmental Protection Act 1986 (WA) s 63. In the Northern Territory, an environment protection approval expires when an environment protection licence comes into force, or as specified in the approval. The duration of a licence is stipulated in the licence: Waste Management and Pollution Control Act 1998 (NT) ss 40 and 41. 238. Protection of the Environment Operations Act 1997 (NSW) s 78; Environment Protection Act 1997 (ACT) ss 57 and 58. 239. Protection of the Environment Operations Act 1997 (NSW) ss 45, 58 and 79–83; Environment Protection Act 1997 (ACT) ss 60–65; Environmental Protection Act 1994 (Qld) Ch 4 Pt 11; Ch 5A Pts 5 and 6; Environment Protection Act 1993 (SA) ss 45–47; Environment Protection Regulation 2009 (SA) reg 21; Environment Management and Pollution Control Act 1994 (Tas) ss 86–87; Environment Protection Act 1970 (Vic) ss 19C, 20 and 20A; Environmental Protection Act 1986 (WA) s 59; Waste Management and Pollution Control Act 1998 (NT) ss 34 and 45. A refusal to entertain an application for, or issue, a licence (rather than a refusal of an application for a licence) does not equate to a representation by the EPA that pollution emissions would therefore be permissible: Environment Protection Authority v Queanbeyan City Council [2010] NSWLEC 237. 240. Environment Protection Act 1997 (ACT) s 63; Protection of the Environment Operations Act 1997 (NSW) s 79(5); Waste Management and Pollution Control Act 1998 (NT) s 26(1); Environment Protection Act 1993 (SA) s 55; Waste Management and Pollution Control Act 1998 (NT) s 45. In the Northern Territory, orders made under the Environment Protection (Northern Territory Supreme Court) Act 1978 (Cth) may require the variation, suspension or revocation of a licence issued under the Water Act to achieve compliance with such orders: Water Act 1992 (NT) s 93(3). 241. Protection of the Environment Operations Act 1997 (NSW) s 82 (suspension or revocation of licence by the minister); Environmental Protection Act 1994 (Qld) s 278. 242. Protection of the Environment Operations Act 1997 (NSW) s 54; Waste Management and Pollution Control Act 1998 (NT) s 46; Water Act 1992 (NT) s 92 (transfer automatically effected on transfer of interest in land); Environmental Protection Act 1994 (Qld) Ch 4 Pt 9; Environment Protection Act 1993 (SA) s 49(3); Environmental Protection Act 1986 (WA) ss 61(2) and 64; Environment Protection Act 1970 (Vic) s 25. In Queensland, failure of a vendor to inform a purchaser of a licensed business of the necessity to apply for a transfer of the licence is a ground for rescission of the contract of sale prior to settlement: s 54(2)(3). In the Australian Capital Territory, transfer could presumably be applied for by way of an application for variation under s 60; see also s 67 (notice of permanent cessation of activity by holder of authorisation). 243. For example, Environmental Protection Act 1994 (Qld) ss 207 and 208; and on audits, see 15.80. 244. For example, Protection of the Environment Operations Act 1997 (NSW) ss 147 and 148. 245. Protection of the Environment Operations Act 1997 (NSW) s 66. There are heavy penalties for submitting false or misleading certificates, information or statements: s 66(4), (5). 246. Protection of the Environment Operations Act 1997 (NSW) s 45; Environment Protection Act 1997 (ACT) s 61; Environmental Protection Act 1994 (Qld) ss 203–210; Sch 4 (standard criteria); Environment Protection Act 1993 (SA) s 47; Waste Management and Pollution Control Act 1998 (NT) ss 32 and 33; Water Act 1992 (NT) ss 90(1) and 91 (licences may not be issued where to do so would contravene a water sharing agreement with a state); Environment Management and Pollution Control Act 1994 (Tas) ss 3, 25(3) and 74 (assessment of applications must be in

accordance with principles of EIA); Environment Protection Act 1970 (Vic) ss 19B, 20A, 20C; Environmental Protection Act 1986 (WA) ss 54(3) and (4), 57(3) and (4), 60(1). It has been pointed out that where there are no specific requirements to consider the impact of pollution on marine environments and fisheries, then this may not be adequately addressed; see Orgill, ‘The Pernicious Problem of “Pointy” Pollution: An Assessment of the International and Australian Legal Regimes for Controlling Point-source, Land-based Marine Pollution’ (2015) 32 EPLJ 361, 369. 247. Environment Protection Act 1993 (SA) s 47(2)–(4). 248. Section 57. 249. Environmental Protection Act 1986 (WA) s 57(2)(a). 250. Section 57(3)(b). 251. Section 60(2). 252. Environment Protection Act 1970 (Vic) s 20C(4)–(5); Environmental Protection Act 1986 (WA) s 60(3). 253. Environment Protection Act 1970 (Vic) s 20C(3); Environmental Protection Act 1986 (WA) s 60(3). 254. See Gardner, ‘“Environmental Factors”, The Western Australian EPA’s Response to the Coastal Waters Case’ (1997) 14 EPLJ 141; Bache, Bailey and Evans, ‘Interpreting the Environmental Protection Act 1986 (WA): Social Impacts and the Environment Redefined’ (1996) 13 EPLJ 487. 255. Fowler (1978) Adel LR 311 at 312. 256. See 15.33. 257. Environmental Protection Act 1994 (Qld) Sch 4 (standard criteria); Waste Management and Pollution Control Act 1998 (NT) s 90(1) (‘other relevant considerations’). 258. Protection of the Environment Operations Act 1997 (NSW) s 45(d). 259. Brown v Environment Protection Authority & North Broken Hill Ltd (No 2) (1992) 78 LGERA 119. 260. And on market-based incentives, see further 7.40 and following. 261. Protection of the Environment Operations Act 1997 (NSW) ss 295A–295L; Environment Protection Act 1970 (Vic) s 19AB; Environment Protection Act 1997 (ACT) s 36. 262. One licence that covers a number of discharge points on different premises run by the same operator ; Environment Protection Act 1997 (ACT) s 35. 263. Protection of the Environment Operations Act 1997 (NSW) ss 295M–295X. 264. Environment Protection Regulations 2009 (SA) reg 30. 265. Environment Protection Regulations 2009 (SA) reg 32 (calculated by reference to the amount of wastewater discharged to the marine environment). 266. Protection of the Environment Operations (General) Regulation 2009 (NSW) regs 13–35 and 42– 45; ; Environment Protection Regulations 2009 (SA) reg 31. 267. Protection of the Environment Operations Act 1997 (NSW) ss 293–295X; Environment Protection Act 1970 (Vic) s 19AA; Environment Protection Act 1997 (ACT) s 34. 268. Protection of the Environment Operations Act 1997 (NSW) s 295B. 269. Protection of the Environment Operations (Hunter River Salinity Trading Scheme) Regulation 2002 (NSW); . 270. A green offset scheme is a scheme established for any or all of the following purposes:

(a)

to carry out a specified program for the restoration or enhancement of the environment that is related to a licensed activity;

(b) to prevent, control, abate, mitigate or otherwise offset any harm to the environment arising (wholly or partly) from any licensed activity; (c) to make good any environmental damage arising (wholly or partly) from a licensed activity. Protection of the Environment Operations Act 1997 (NSW) s 295O. See also Environment Protection Act 1970 (Vic) s 19AA. 271. Environment Protection Act 1970 (Vic) ss 26A–26E; Environment Protection Regulations 2009 (SA) regs 35–38. 272. Environment Protection Act 1993 (SA) ss 59 and 60. See also Environment Protection Act 1997 (ACT) ss 38–41 (environmental protection agreements); Environmental Management and Pollution Control Act 1994 (Tas) ss 28 and 29 (environmental agreements). 273. Protection of the Environment Operations Act 1997 (NSW) s 63; Environment Protection Act 1997 (ACT) s 51; Waste Management and Pollution Control Act 1998 (NT) s 35; Water Act 1992 (NT) ss 63(2) and 77; Environmental Protection Act 1994 (Qld) s 203; Environment Protection Act 1993 (SA) s 45; Environment Management and Pollution Control Act 1994 (Tas) s 25(6); Environment Protection Act 1970 (Vic) s 21; Environmental Protection Act 1986 (WA) s 62. 274. Environmental Protection Act 1994 (Qld) ss 204–206; Environment Protection Act 1993 (SA) ss 68–71 (conditions under which approved beverage containers may be distributed throughout state). 275. Protection of the Environment Operations Act 1997 (NSW) ss 65–76. Specific conditions include monitoring and certification, mandatory environmental audits, pollution studies and reduction programs, tradeable emission schemes and other economic incentives, financial assurances, remediation works, insurance cover, and positive covenants and waste matters. 276. Protection of the Environment Operations Act 1997 (NSW) ss 66–68; Environment Protection Act 1997 (ACT) s 51; Environment Protection Act 1993 (SA) ss 45 and 51–54; Environment Management and Pollution Control Act 1994 (Tas) s 25(6); Environment Protection Act 1970 (Vic) ss 21, 53, 54 and 54B; Environmental Protection Act 1986 (WA) s 62; Waste Management and Pollution Control Act 1998 (NT) s 35(3). An environmental audit and compliance program may be used to assess the performance of the holder of an authorisation in endeavouring to achieve compliance following contraventions of the legislation. 277. Protection of the Environment Operations Act 1997 (NSW) s 66. 278. See 15.81. 279. Protection of the Environment Operations Act 1997 (NSW) s 66(5). 280. Environment Protection Act 1970 (Vic) ss 20(6)(a) and 21(f). 281. Bathurst City Council v PWC Properties (1998) 100 LGERA 383; Corporation of the City of Enfield v Development Assessment Commission (2000) 106 LGERA 419; Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63. 282. Protean (Holdings) Ltd v Environment Protection Authority [1977] VR 51. See also the case notes at (1977) ALJ 146; 6 Adel LR 311. Applied in Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd (1996) 92 LGERA 101; see also Eastern Waste Management Incorporated v City of Tea Tree Gully (1996) 92 LGERA 1 (condition imposed by EPA not to store, treat or dispose of waste after expiration of local authority development consent deemed unnecessary or undesirable in attempting to reflect what was thought to be authorised by the planning consent); Eclipse Resources Pty Ltd v Department of Environment and Conservation [2010] WASC 360 (licensing decision could be challenged on basis of irrationality or unreasonableness and relief given in the form of certiorari or mandamus).

283. Similar considerations apply to environment protection orders such as clean-up notices: see 20.4 and following. 284. Ford Motor Co v Environment Protection Authority (1989) 37 APAD 314 (condition that ‘no particulate matter shall be discharged which might reasonably be expected to be detrimental to any beneficial use of the environment’ was held invalid because the licensee could never know whether it might be in breach of the condition). 285. Environmental Protection Act 1994 (Qld) s 435A; Environment Protection Authority v HTT Huntley Heritage Pty Ltd (2003) 125 LGERA 332. 286. See Environment Protection Authority v Peters (2006) 153 LGERA 238. 287. Protection of the Environment Operations Act 1997 (NSW) ss 70 and 296–307; Environmentally Hazardous Chemicals Act 1985 (NSW) s 34; Environment Protection Act 1997 (ACT) ss 85–91; Environmental Protection Act 1994 (Qld) s 292; Environment Protection Act 1993 (SA) s 51; Environmental Protection Act 1986 (WA) ss 86A–86G; Environment Management and Pollution Control Act 1994 (Tas) ss 35–36; Waste Management and Pollution Control Act 1998 (NT) s 36; Environment Protection Act 1970 (Vic) ss 21, 31A and 53B. In Victoria, the assurance may be secured by letters of credit, certificates of title, or any other form of security deemed appropriate by the EPA: Environment Protection Act 1970 (Vic) s 67B(1). See also Macinante, ‘Debt Financing Issues in Environmental Regulation’ (1997) 14 EPLJ 456. 288. Protection of the Environment Operations Act 1997 (NSW) s 299; Waste Management and Pollution Control Act 1998 (NT) s 36(3); Environmental Protection Act 1986 (WA) s 86C. 289. Protection of the Environment Operations Act 1997 (NSW) s 300; Waste Management and Pollution Control Act 1998 (NT) s 36(4). 290. Protection of the Environment Operations Act 1997 (NSW) ss 302–303; Environment Protection Act 1997 (ACT) ss 88 and 89; Environmental Protection Act 1994 (Qld) ss 292 and 298; Environment Protection Act 1993 (SA) s 51(5); Environment Management and Pollution Control Act 1994 (Tas) s 36; Environment Protection Act 1970 (Vic) s 67C(2). For remediation and cleanup notices, see 20.4 and following. In New South Wales, it is specifically provided that the regulatory authority will not be liable for anything done by it or under its supervision when acting under such powers; liability will borne by the licence holder: Protection of the Environment Operations Act 1997 s 305. 291. See 20.4 and following. The regulatory authority may be specifically empowered to recover the difference between the reasonable costs and expenses of remediation and the realised assurance: Protection of the Environment Operations Act 1997 (NSW) s 303(8); Environment Protection Act 1997 (ACT) s 90; Environmental Protection Act 1986 (WA) s 86G. 292. Protection of the Environment Operations Act 1997 (NSW) ss 284–286; Environment Protection Act 1970 (Vic) s 71(2B); Environmental Protection Act 1994 (Qld) ss 40ZT–40ZX; Environment Protection Act 1993 (SA) ss 37, 75, 78 (an exemption is one type of environmental authorisation) and 114 (ministerial approval for waste disposal operations established by EPA deemed to constitute compliance with Act); Environmental Protection Act 1986 (WA) s 6; Waste Management and Pollution Control Act 1998 (NT) s 118; Land Use Planning and Approvals Act 1993 (Tas) ss 25(4) and 27(4). 293. See 15.101. 294. See 15.44. 295. See, for example, Alumina Refinery (Worsley) Agreement Amendment Act 1978 (WA); Northern Pulp Mill Agreement Act 1988 (Tas); Hellyer Mine Agreement Ratification Act 1987 (Tas); Alcoa (Portland Aluminium Smelter) Act 1980 (Vic); Rundle Oil Shale Agreement Act 1980 (Qld); McArthur River Project Agreement Ratification Act 1992 (NT); Iron Ore (Marillana Creek) Agreement Act 1991 (WA).

296. Environment Protection Act 1997 (ACT) ss 52, 55, 63, 66; Waste Management and Pollution Control Act 1998 (NT) s 45; Protection of the Environment Operations Act 1997 (NSW) ss 79(1), 80(1), 81(1) and 82(1); Environmental Protection Act 1994 (Qld) s 201; Environment Protection Act 1993 (SA) s 55(1); Environment Protection Act 1970 (Vic) ss 19CA and 26; Environmental Protection Act 1986 (WA) s 59A. 297. For example, Protection of the Environment Operations Act 1997 (NSW) s 79. 298. Environment Protection Act 1997 (ACT) s 63(1)(a)(i), 63(2); Waste Management and Pollution Control Act 1998 (NT) s 45(1); Protection of the Environment Operations Act 1997 (NSW) s 79(5) (b); Environment Protection Act 1993 (SA) s 55(1)(b); Environment Protection Act 1970 (Vic) s 20(9)(a)(i), 20(9)(a)(ii); Environmental Protection Act 1986 (WA) s 59(1)(a)(i). 299. Environment Protection Act 1997 (ACT) s 63(3) (applicant’s environmental record is a matter to be taken into account in deciding whether to cancel environmental authorisation); Protection of the Environment Operations Act 1997 (NSW) s 79(5)(f) (applicant no longer a ‘fit and proper person’ as defined in s 83); Environment Protection Act 1993 (SA) s 55(1)(c). 300. Environment Protection Act 1997 (ACT) s 63(1)(a)(ii); Waste Management and Pollution Control Act 1998 (NT) s 45(1)(d). 301. Environment Protection Act 1997 (ACT) s 66; Waste Management and Pollution Control Act 1998 (NT) s 43(3); Protection of the Environment Operations Act 1997 (NSW) s 80; Environment Protection Act 1993 (SA) s 56; Environment Protection Act 1970 (Vic) s 23A; Environmental Protection Act 1986 (WA) s 59A(2)(e). In Queensland, see generally Environmental Protection Act 1994 (Qld) s 257. 302. Environmental Protection Act 1994 (Qld) ss 322–326A; Environment Protection Act 1970 (Vic) s 19AF (impetus for direction to prepare Neighbourhood Environmental Improvement Plan); Environment Protection Act 1997 (ACT) s 74; Environment Management and Pollution Control Act 1994 (Tas) s 5B; Waste Management and Pollution Control Act 1998 (NT) s 47; see also Protection of the Environment Operations Act 1997 (NSW) s 172. In respect of professional evaluation of the audit industry, see Gunningham, ‘Environmental Auditing: Who Audits the Auditors’ (1993) 10 EPLJ 229; Fisher, ‘Legal Pitfalls for Environmental Consultants’ (1997) 14 EPLJ 282; see also Sullivan, ‘Environmental Management Systems: Theory, Practice and Implications for Law and Policy’ (2001) 18 EPLJ 594. 303. See 20.71 and following. 304. See 15.51. 305. Environmental Protection Act 1994 (Qld) ss 322 and 323; Environment Management and Pollution Control Act 1994 (Tas) s 30; Environment Protection Act 1997 (ACT) s 76; Protection of the Environment Operations Act 1997 (NSW) ss 67 and 174–176; Contaminated Land Management Act 1997 (NSW) s 17 (investigation order for contaminated land); Environmentally Hazardous Chemicals Act 1985 (NSW) ss 36A–36J; Environment Protection Act 1970 (Vic) ss 53R–53ZE, 67AC(2)(d) (court) and 70 (authority); Waste Management and Pollution Control Act 1998 (NT) ss 48 (CEO) and 49 (court). 306. Environmental Protection Act 1994 (Qld) ss 321 and 330 (transitional environmental program); Environment Protection Act 1993 (SA) s 52; Environment Management and Pollution Control Act 1994 (Tas) s 39; Environment Protection Act 1997 (ACT) s 77; Waste Management and Pollution Control Act 1998 (NT) s 58 (compliance plan); Protection of the Environment Operations Act 1997 (NSW) s 179; Contaminated Land Act 1997 (NSW) s 23 (remediation order). In Victoria, the EPA is empowered to amend licences so as to require an audit to be carried out, and to publish the results at the end of that audit. This power is used principally where there has been a failure to participate in an industry Environmental Improvement Plan under the Environment Protection Act 1970 (Vic) s 31C. See also Industrial Waste Management (Waste Minimisation) Policy, which allows the EPA to direct occupiers of industrial premises that generate prescribed wastes to

undertake an audit. 307. Protection of the Environment Operations Act 1997 (NSW) s 295Y. Specified licence holders may be required to contribute towards the costs of such programs: s 295Z. 308. Environmental Protection Act 1994 (Qld) s 326B. 309. Environmental Protection Act 1994 (Qld) s 321. 310. Such requirements can only be imposed on holders of an environmental authorisation who have contravened the Act on more than one occasion and where the imposition of such conditions is justified in view of the nature, number or frequency of such contraventions: Environment Protection Act 1993 (SA) s 52(3). 311. Environment Protection Act 1993 (SA) s 52. 312. Environment Protection Act 1970 (Vic) s 31C. 313. Environment Protection Act 1970 (Vic) ss 4(1) and 57AA. In preparing a report, auditors must have regard to EPA guidelines, relevant state policies and beneficial uses of that segment of the environment: s 57AA(3). 314. Environment Protection Act 1970 (Vic) s 57AA(4). Auditors who submit false or misleading information or issue a false or misleading audit are guilty of a criminal offence: s 57AA(6). 315. Environment Protection Act 1970 (Vic) s 19AF. 316. Environment Protection Act 1970 (Vic) ss 19AD–19AK. 317. Protection of the Environment Operations Act 1997 (NSW) ss 178 and 179. 318. McDonald, ‘Corporate Confidentiality after Caltex: How Safe Is Your Audit?’ (1994) 11 EPLJ 193. See also Gunningham and Prest, ‘Environmental Audit as a Regulatory Strategy: Prospects and Reform’ [1993] 15 Syd LR 492; Low, ‘How Green Is My Company? An Examination of Curial and Statutory Processes Protecting Environmental Audits from Disclosure’ (1997) 14 EPLJ 473. 319. See Puls, ‘Corporate Privilege — Do Directors Really Have a Right to Silence Since Caltex and Abbco Iceworks?’ (1996) 13 EPLJ 364. 320. See also Mann, ‘Internal Environmental Audits: Can Legal Professional Privilege be Claimed? (1991) 8 EPLJ 193; Buckley, ‘Environmental Audit and Legal Professional Privilege’ (1991) 8 EPLJ 338. A device that has been used to ensure protection for documentation arising from a compliance audit is to draw up an agency agreement between the auditor and the client appointing the auditors as agents of the client for the purpose of carrying out the audit and instructing a solicitor to advise the client of the client’s legal position. McDonald, ‘Corporate Confidentiality after Caltex: How Safe Is Your Audit?’ (1994) 11 EPLJ 193 at 198, points out that this device will only succeed where the consultant is acting as the alter ego of the corporation and that auditors will rarely fall into this category. Similar difficulties arise where the audit is commissioned by a solicitor for the purposes of providing legal advice, since the auditor is unlikely to be acting as the alter ego of the solicitor: see above at 199. 321. See Bowman, ‘New Legislative Protection of Voluntary Environmental Audits: Incentive or Indictment?’ (1999) 27 ABLR 391. 322. Enforcement Policy, EPA Victoria, 2007. 323. Protection of the Environment Operations Act 1997 (NSW) s 180. 324. Protection of the Environment Operations Act 1997 (NSW) ss 181 and 182. 325. Protection of the Environment Operations Act 1997 (NSW) s 183. 326. Waste Management and Pollution Control Act 1998 (NT) s 54. 327. Environment Protection Act 1993 (SA) s 58; Environment Management and Pollution Control Act 1994 (Tas) s 31; Environment Protection Act 1997 (ACT) s 78.

328. Protection of the Environment Operations Act 1997 (NSW) s 174(3)(e). 329. Environment Protection Act 1997 (ACT) s 78(8). 330. Environment Protection Act 1993 (SA) s 58(6). 331. Environmental Protection Act 1994 (Qld) s 351. 332. Environmental Protection Act 1994 (Qld) s 350. 333. Environment Protection Act 1970 (Vic) s 57; Environment Protection Act 1997 (ACT) s 75; Waste Management and Pollution Control Act 1998 (NT) ss 67–69; Protection of the Environment Operations Act 1997 (NSW) s 173; Environmental Protection Act 1994 (Qld) s 567. 334. The competent appeal bodies are the Administrative Appeals Tribunal (Cth), ACT Civil and Administrative Tribunal (ACT), Victorian Civil and Administrative Tribunal (Vic); the minister (NT and WA, assisted by an ‘appeals convenor’, Environmental Protection Act 1986 (WA) s 107B); Land and Environment Court (NSW); Planning and Environment Court and Land Court (Qld); Environment, Resources and Development Court (SA) (ERD Court); Resource Management and Planning Appeal Tribunal (Tas). And see also 2.72. 335. Protection of the Environment Operations Act 1997 (NSW) ss 287–292; Contaminated Land Management Act 1997 (NSW) s 61; Environment Protection Act 1997 (ACT) ss 135–136B, Sch 3 (the minister or premier settles disputes between the EPA and a local authority: s 78(1); disputes arising in connection with an industry waste reduction plan or regional waste plan may be determined by an independent facilitator: s 79); Civil and Administrative Tribunal Act 2008 (ACT) ss 22Q, 67A and 68; Waste Management and Pollution Control Act 1998 (NT) ss 29 and 30; Environmental Protection Act 1994 (Qld) s 520; Contaminated Land Act 1991 (Qld) ss 40–42; Environment Protection Act 1993 (SA) s 106; Environment Management and Pollution Control Act 1994 (Tas) ss 41(3) and 44(6); Environment Protection Act 1970 (Vic) ss 32–37A; Environmental Protection Act 1986 (WA) ss 102–104. 336. Environment Management and Pollution Control Act 1994 (Tas) s 41(3). 337. Environment Protection Act 1997 (ACT) s 135(5) (‘eligible person’). 338. Environmental Protection Act 1986 (WA) ss 102(3) and 103(2). 339. Environment Protection Act 1970 (Vic) s 33B; and see Thirteenth Beach Coast Watch Inc v Environment Protection Authority [2009] VSC 53. 340. See 10.70. 341. Environment Protection Act 1993 (SA) s 107; Environmental Protection Act 1986 (WA) ss 102(4), 103(3) and 104(2); Protection of the Environment Operations Act 1997 (NSW) s 84. 342. Environmental Protection Act 1994 (Qld) ss 522 and 535; Environment Protection Act 1993 (SA) s 107. 343. See further 22.3 and following. 344. See further 22.17 and following. 345. And see Hartley, ‘Are Criminal Penalties the Most Effective Sanction for Offences Under Pt V of the Environmental Protection Act 1986 (WA)?’ (2004) 21 EPLJ 312; and on using the Australian experience to reform the law in the United Kingdom, see Abbot, ‘The Enforcement of Pollution Control Laws in England and Wales: A Case for Reform?’ (2005) 22 EPLJ 68. 346. See also 20.4 and following. 347. Environmental Protection Act 1994 (Qld) ss 358 (environmental protection order), 363B–363D (directions notice requiring a person to remedy a contravention), 363H (clean-up notice) and 363N (cost recovery); Environment Management and Pollution Control Act 1994 (Tas) s 44; Environment Protection Act 1997 (ACT) ss 125–126; Protection of the Environment Operations

Act 1997 (NSW) ss 89–113; Environment Protection Act 1993 (SA) ss 93, 93A and 99; Environmental Protection Act 1986 (WA) s 65. In New South Wales, orders are of three types: clean-up notices, prevention notices and prohibition notices: s 90. Clean-up directions may be given orally: s 93. Prevention notices may be issued where an activity is being or has been carried on in an ‘environmentally unsatisfactory manner’, which is defined to cover contravention of the law and licence conditions, activities likely to cause pollution, and failure to adopt good environmental practice: ss 95 and 96. Prohibition notices may be issued by the minister where an activity is causing or likely to cause harm to the environment, injury to public health or discomfort or inconvenience to persons not associated with the activity: s 101. Western Australia also has prevention notices (s 73A) and closure notices (s 68A). 348. Environmental Protection Act 1994 (Qld) ss 360, 363D and 363H; Environment Management and Pollution Control Act 1994 (Tas) s 44(3); Environment Protection Act 1997 (ACT) s 125; Protection of the Environment Operations Act 1997 (NSW) ss 91, 92, 96 and 101. Examples of preventive measures are given in Protection of the Environment Operations Act 1997 (NSW) s 96(3); Environment Protection Act 1993 (SA) s 93(2). 349. Ward v Williams (1955) 92 CLR 496; Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 84 LGERA 113; Slack-Smith v Director General Department of Land and Water Conservation (2003) 132 LGERA 1; Cantarella Bros Pty Ltd v City of Ryde Council (2003) 131 LGERA 190. 350. Environmental Protection Act 1994 (Qld) ss 359 and 363C, Sch 4 (‘standard criteria’). 351. Protection of the Environment Operations Act 1997 (NSW) ss 91(5), 93(4), 97 and 102 (notices must be complied with irrespective of whether time limits set for their operation have expired: s 319A); Environmental Protection Act 1994 (Qld) ss 361, 363E and 363I; SA, s 93(8); Tas, s 45(3); Environment Protection Act 1997 (ACT) s 126. 352. Protection of the Environment Operations Act 1997 (NSW) s 104; Environmental Protection Act 1994 (Qld) s 363N. In Western Australia, it appears that an authorised officer can deal with pollution in accordance with the requirements of s 73 whether or not an order has been issued. 353. Protection of the Environment Operations Act 1997 (NSW) s 91(4). 354. Protection of the Environment Operations Act 1997 (NSW) ss 133–135. 355. Protection of the Environment Operations Act 1997 (NSW) ss 263–283; Environment Protection Act 1970 (Vic) s 31A. 356. Protection of the Environment Operations Act 1997 (NSW) ss 161 and 162. 357. Protection of the Environment Operations Act 1997 (NSW) ss 264 and 276; Local Government Act 1993 (Tas) s 199; Environment Protection Act 1970 (Vic) ss 47, 47A, 48A, 48AB, 48B, 48C and 55A; Environmental Protection Act 1986 (WA) ss 65 and 81. In State Pollution Control Commission v Bulli Trotting Club (1983) 51 LGRA 336, it was held that such a notice is largely anticipatory in effect and that its validity does not depend on the existence of an offensive emission at the time the notice is issued. 358. Protection of the Environment Operations Act 1997 (NSW) ss 133–135 (fires in the open air) and 161–162 (motor vehicles). 359. Waste Management and Pollution Control Act 1998 (NT) ss 77–82; Environment Protection Act 1970 (Vic) ss 28 and 28B; Environmental Protection Act 1986 (WA) ss 65(1) and 73; Water Resources Act 1989 (Qld) s 4.40; Public and Environmental Health Act 1987 (SA) s 21. 360. Protection of the Environment Operations Act 1997 (NSW) ss 133, 134, 264, 268, 270, 276 and 278; Environment Protection Act 1997 (ACT) ss 30A and 31(4); Waste Management and Pollution Control Act 1998 (NT) ss 77–82; Environment Protection Act 1993 (SA) s 93; Environment Management and Pollution Control Act 1994 (Tas) s 44; Environment Protection Act 1970 (Vic) ss 28, 28B, 31, 31A, 31B, 47 and 47A; Environmental Protection Act 1986 (WA) ss 65, 69, 71 and 73; Fisheries Act 1968 (Vic) s 68; Fisheries Act 1988 (NT) s 15; Fisheries Act 1994 (Qld) s 125; Living

Marine Resources Management Act 1995 (Tas) ss 136 and 137; Fisheries Act 1905 (WA) s 26A. In Victoria, the minor works notice comes into force immediately on service of the notice by the EPA, subject to any period of time allowed for compliance, while a pollution abatement notice will not take effect until 30 days after service, or such longer period of time as is specified. 361. Environment Protection Act 1970 (Vic) s 31. 362. Environment Protection Act 1970 (Vic) s 28. 363. Environment Protection Act 1970 (Vic) s 28B. 364. Environment Protection Act 1970 (Vic) s 60A. 365. For example, Crimes Act 1900 (ACT) s 394 (noise abatement directions issued by police officer); Summary Offences Act 1923 (NT) ss 5 (definition of ‘undue noise’), 53A and 53B (noise abatement direction may be issued by a police officer where undue noise is being emitted); Local Government Act 1993 (NSW) s 125 (council powers to order a person to abate a public nuisance); Police Powers and Responsibilities Act 2000 (Qld) Pt 3 Divs 1 (police officer may issue noise abatement direction) and 2 (police officer may issue noise abatement order); Summary Offences Act 1953 (SA) s 54 (police officer has power to issue noise abatement direction where excessive noise emitted from vehicle); Local Government Act 1993 (Tas) ss 200(1) (nuisance abatement notice may be served by council) 203 (nuisance abatement orders); Public Health and Wellbeing Act 2008 (Vic) Pt 6 Div 1 (councils have powers to issue notices to abate a nuisance: s 62(3)–(4). ‘Nuisance’ is broadly defined: Public Health and Wellbeing Act 2008 (Vic) s 58(3), (4)). 366. Environmental Protection Act 1986 (WA) ss 65–68. 367. Environmental Protection Act 1986 (WA) s 69. 368. Environmental Protection Act 1986 (WA) s 71. 369. Environment Protection Act 1993 (SA) s 94; Environment Management and Pollution Control Act 1994 (Tas) s 46. 370. Environment Protection Act 1993 (SA) s 95; Environment Management and Pollution Control Act 1994 (Tas) s 46(5)(b). 371. Environment Protection Act 1993 (SA) s 95; Environment Management and Pollution Control Act 1994 (Tas) s 47. 372. Protection of the Environment Operations Act 1997 (NSW) ss 104–107. This charge is subject to existing charges or encumbrances: s 107(4). 373. Protection of the Environment Operations Act 1997 (NSW) ss 230–240, 246 and 247. A restraining order is an order of the court directing that property of the defendant is not to be disposed of or otherwise dealt with except as specified in the order: s 231. 374. Environmental Protection Act 1994 (Qld) s 502 Environment Management and Pollution Control Act 1994 (Tas) s 63; Environment Protection Act 1970 (Vic) s 64; Protection of the Environment Operations Act 1997 (NSW) s 245; Environment Protection Act 1997 (ACT) s 15. And see further 20.116. 375. Protection of the Environment Operations Act 1997 (NSW) s 253A; Environment Protection Act 1970 (Vic) s 67D (the EPA must maintain a register of undertakings: s 67G). 376. Environment Protection Act 1970 (Vic) s 67D(4), (6). 377. Protection of the Environment Operations Act 1997 (NSW) s 253A(3), 253A(4); Environment Protection Act 1970 (Vic) s 67E. 378. Waste Management and Pollution Control Act 1998 (NT) s 97; Environment Protection Act 1993 (SA) s 105; Environment Management and Pollution Control Act 1994 (Tas) s 34; Environmental Protection Act 1986 (WA) s 75(1).

Protection of the Environment Operations Act 1997 (NSW) ss 91(2) and 93; Environmental 379. Protection Act 1994 (Qld) s 467; Environment Protection Act 1993 (SA) s 93; Waste Management and Pollution Control Act 1998 (NT) s 97; Environmental Protection Act 1986 (WA) ss 74–75; Environment Protection Act 1970 (Vic) s 30A. 380. See 20.4 and following. 381. Environment Protection Act 1997 (ACT) ss 80–84. 382. See Preston, ‘Sustainable Development Law in the Courts: The Polluter Pays Principle’ (2009) 26 EPLJ 257. 383. See, for example, Environment Protection Authority v Orica Australia Pty Ltd [2014] NSWLEC 103 — 110 (fine of $768,000 for seven proven offences); Department of Environment Regulation v Brownes Food Operations Pty Ltd, available at ; (mining company fined $120,000 for offences of water pollution); Environment Protection Authority v Big Island Mining Pty Ltd [2014] NSWLEC 131 (environmental services order for $103.000 plus costs of $93,000 for offence of water pollution from a goldmine). 384. See, for example, Newcastle Port Corporation v RN Dredging BV [2013] NSWLEC 217 at [69] ($150,000 fine for an offence of low criminality but high culpability); Newcastle Port Corporation trading as Port Authority of New South Wales v Dudgeon; Newcastle Port Corporation trading as Port Authority of New South Wales v Svitzer Australia Pty Limited [2015] NSWLEC 139 ($600,000 for offence of discharging oil into state waters). 385. For the definitions of ‘environmental harm’ ‘material environmental harm’ and ‘serious environmental harm’, see 15.26 and following. 386. Environment Protection Act 1997 (ACT) s 137. 387. Environment Protection Act 1997 (ACT) ss 138 and 139. 388. Environment Protection Act 1997 (ACT) s 141. 389. Environment Protection Act 1997 (ACT) s 142. 390. Environmental Offences and Penalties Act 1996 (NT) ss 4–7. 391. Waste Management and Pollution Control Act 1998 (NT) s 83(1). 392. Environmental Protection Act 1994 (Qld) s 437(1) (wilfully and unlawfully causing serious environmental harm), 437(2) (unlawfully causing serious environmental harm). For the definition of ‘unlawful environmental harm’ see Environmental Protection Act 1994 (Qld) s 493A. Under the Environmental Protection Act 1994 (Qld), for offences other than the environmental harm offences, penalties are generally higher where the offence occurs as the result of wilful behaviour on the part of the defendant than for the same offence committed without intention; for example, s 430 (contravention of a condition of an environmental authority). ‘Wilfully’ means: (1) intentionally; (2) recklessly, or (3) with gross negligence: Sch 4. 393. Environmental Protection Act 1994 (Qld) ss 438 and 440. 394. Environmental Protection Act 1994 (Qld) s 439. 395. Environmental Protection Act 1994 (Qld) ss 437(3), 438(3) and 440(3). 396. Environment Protection Act 1993 (SA) ss 79, 80 and 82; Environmental Management and Pollution Control Act 1994 (Tas) ss 50, 51 and 53. 397. Environment Protection Act 1993 (SA) s 79(1); Environmental Management and Pollution Control

Act 1994 (Tas) s 50(1). 398. Environment Protection Act 1993 (SA) s 79(2); Environmental Management and Pollution Control Act 1994 (Tas) s 50(2). 399. Environment Protection Act 1993 (SA) s 80(1); Environmental Management and Pollution Control Act 1994 (Tas) s 51(1). 400. Environment Protection Act 1993 (SA) s 80(2); Environmental Management and Pollution Control Act 1994 (Tas) s 51(2). 401. Environment Protection Act 1993 (SA) s 82; Environmental Management and Pollution Control Act 1994 (Tas) s 53(1). In Tasmania, there is also a lesser offence of merely causing an environmental nuisance: s 53(2). 402. Environment Protection Act 1993 (SA) ss 79(3) (serious environmental harm), 80(3) (material environmental harm); Environmental Management and Pollution Control Act 1994 (Tas) ss 50(3) (serious environmental harm) and 51(3) (material environmental harm). Additionally, in Tasmania, an alternative verdict is available where the element of intent is not established in relation to an offence of environmental nuisance: s 53(4). 403. Environment Protection Act 1993 (SA) s 81. 404. Environmental Protection Act 1986 (WA) ss 50A(1) (serious environmental harm) and 50B(1) (material environmental harm). 405. Environmental Protection Act 1986 (WA) ss 50A(2) (serious environmental harm) and 50B(2) (material environmental harm). Some defences are set out in ss 74–74B. 406. Environmental Protection Act 1986 (WA) s 50C. 407. Environmental Protection Act 1986 (WA) s 99Q, Sch 1. ‘Tier 1 offence’, ‘Tier 2 offence’ and ‘Tier 3 offence’ are defined in s 3(1). 408. Protection of the Environment Operations Act 1997 (NSW) s 114. 409. Tier 1 offences are the offences under Protection of the Environment Operations Act 1997 (NSW) Ch 5 Pt 5.2: s 114(1). 410. Protection of the Environment Operations Act 1997 (NSW) s 115. 411. Protection of the Environment Operations Act 1997 (NSW) s 116. 412. Protection of the Environment Operations Act 1997 (NSW) s 117. 413. Tier 2 offences are all offences under the Protection of the Environment Operations Act 1997 (NSW) or the regulations, other than Tier 1 offences: Protection of the Environment Operations Act 1997 (NSW) s 114(2). 414. Protection of the Environment Operations Act 1997 (NSW) s 120. Note, however, that the definition of ‘harm to the environment’ includes any direct or indirect alteration of the environment that has the effect of degrading the environment, and includes ‘any act or omission that results in pollution’ (Protection of the Environment Operations Act 1997 (NSW) Dictionary (definition of ‘harm to the environment’)). 415. Protection of the Environment Operations Act 1997 (NSW) s 114(3), Ch 8 Pt 8.2. For the prescribed Tier 3 offences see Protection of the Environment Operations Act 1997 (NSW) s 222; Protection of the Environment Operations (General) Regulation 2009 (NSW) Sch 6. 416. Protection of the Environment Operations Act 1997 (NSW) ss 114(3) and 222; Protection of the Environment Operations (General) Regulation 2009 (NSW) Sch 6. Penalties are within a range up to $7500 for individuals and $15,000 for corporations. 417. Protection of the Environment Operations Act 1997 (NSW) s 67AA. 418. Protection of the Environment Operations Act 1997 (NSW) s 59E.

419. Environment Protection Act 1997 (ACT) ss 42, 43(1) and 44, Sch 1; Waste Management and Pollution Control Act 1998 (NT) s 30 (level 4 offence), Sch 2; Environmental Offences and Penalties Act 1996 (NT) s 7; Protection of the Environment Operations Act 1997 (NSW) ss 47–49; Environmental Protection Act 1994 (Qld) ss 426–427; Environment Protection Act 1993 (SA) s 36; Environmental Management and Pollution Control Act 1994 (Tas) s 79; Environment Protection Act 1970 (Vic) s 27(1), (1A); Environmental Protection Act 1986 (WA) s 53. 420. Environment Protection Act 1997 (ACT) s 45; Waste Management and Pollution Control Act 1998 (NT) s 39(1) (intentionally) (level 3 offence), 39(2) (level 4 offence); Environmental Offences and Penalties Act 1996 (NT) ss 6, 7; Protection of the Environment Operations Act 1997 (NSW) s 64(1); Environmental Protection Act 1994 (Qld) s 430; Environment Protection Act 1993 (SA) s 45(5); Environmental Management and Pollution Control Act 1994 (Tas) s 78; Environment Protection Act 1970 (Vic) s 27(2); Environmental Protection Act 1986 (WA) s 58. In New South Wales, the holder of the licence does not commit an offence if he or she establishes that: (a) the contravention of the condition was caused by another person; (b) that other person was not associated with the holder at the time the condition was contravened; and (c) the holder took all reasonable steps to prevent the contravention of the condition: Protection of the Environment Operations Act 1997 (NSW) s 64(2). For a similar defence in Queensland, see Environmental Protection Act 1994 (Qld) s 431(4). 421. Environment Protection Act 1993 (SA) s 34(1) (intentionally or recklessly) and 34(2) (refers only to mandatory provisions of EPPs). 422. Environment Protection Act 1997 (ACT) ss 91C(8) (order to assess whether land contaminated), 91D(4), (9) (order to remediate land), 126 (environment protection order) and 134 (information discovery order); Protection of the Environment Operations Act 1997 (NSW) s 238(1) (restraining order); Environmental Protection Act 1994 (Qld) ss 361(1) (wilfully contravene an environment protection order), 361(2) (contravene an environment protection order), 505(12) (restraining order) and 511(4) (enforcement order); Environment Protection Act 1993 (SA) ss 93(8) (environment protection order) and 93A (environment protection order to cease activity), 96(5) (information discovery order) and 99(8) (clean-up order); Environment Protection Act 1970 (Vic) s 30D(3) (notifiable chemical order); Environmental Protection Act 1986 (WA) s 48 (orders for control of implementation of proposals). 423. Waste Management and Pollution Control Act 1998 (NT) s 80(1) (intentionally contravene pollution abatement notice) (level 3 offence), 80(2) (contravene pollution abatement notice) (level 4 offence); Environmental Offences and Penalties Act 1996 (NT) ss 6 and 7; Protection of the Environment Operations Act 1997 (NSW) ss 97 (prevention notice), 102 (prohibition notice); Environmental Management and Pollution Control Act 1994 (Tas) s 45(3) (environmental protection notice); Environment Protection Act 1970 (Vic) ss 28B(5) (abatement notice), 31A(7) (pollution abatement notice), 31B(6) (minor works pollution abatement notice) and 62A(3) (notice to clean-up pollution). Note also Environment Protection Act 1970 (Vic) s 31A(8) (certain notices under previous provisions deemed to be pollution abatement notices). 424. Environmental Protection Act 1986 (WA) s 71(5). 425. Environmental Protection Act 1994 (Qld) s 432(1) (wilfully), 432(2); Environmental Management and Pollution Control Act 1994 (Tas) s 42(2). 426. Environment Protection Act 1997 (ACT) s 157(1); Waste Management and Pollution Control Act 1998 (NT) s 97; Protection of the Environment Operations Act 1997 (NSW) ss 243 and 244(2); Environmental Protection Act 1994 (Qld) ss 501(2), 502(2) and 503(2); Environment Protection Act 1993 (SA) s 133(1); Environmental Management and Pollution Control Act 1994 (Tas) s 63(1); Environment Protection Act 1970 (Vic) ss 67AC(1) and 67AC(2); Environmental Protection Act 1986 (WA) ss 99T, 99U and 99ZA. 427. Environment Protection Act 1997 (ACT) s 157(1)(a); Waste Management and Pollution Control Act 1998 (NT) s 97(a)(i), (a)(ii); Protection of the Environment Operations Act 1997 (NSW) s 245;

Environmental Protection Act 1994 (Qld) s 502(2)(a), (7); Environment Protection Act 1993 (SA) s 133(1)(a); Environmental Management and Pollution Control Act 1994 (Tas) s 63(1)(a); Environmental Protection Act 1986 (WA) s 99X(1). 428. Environment Protection Act 1997 (ACT) s 157(1)(b); Protection of the Environment Operations Act 1997 (NSW) s 250(1)(c); Environmental Protection Act 1994 (Qld) s 502(2)(b), (7) (public benefit order); Environment Protection Act 1993 (SA) s 133(1)(b); Environmental Management and Pollution Control Act 1994 (Tas) s 63(1)(b); Environment Protection Act 1970 (Vic) s 67AC(2) (c); Environmental Protection Act 1986 (WA) s 99ZA(1)(c). 429. Environment Protection Act 1997 (ACT) s 157(1)(c); Waste Management and Pollution Control Act 1998 (NT) s 97(c); Protection of the Environment Operations Act 1997 (NSW) s 250(1)(a), (1) (b); Environmental Protection Act 1994 (Qld) s 502(2)(e), (7) (notification report). The court may also make an education order, requiring the person against whom it is made to conduct a stated advertising or education campaign to promote compliance with the Act: Environmental Protection Act 1994 (Qld) s 502(2)(c), 502(7); Environment Protection Act 1993 (SA) s 133(1)(c); Environmental Management and Pollution Control Act 1994 (Tas) s 63(1)(c); Environment Protection Act 1970 (Vic) s 67AC(2)(a), (b); Environmental Protection Act 1986 (WA) s 99ZA(1) (a), (b), (4). 430. Environment Protection Act 1997 (ACT) s 157(1)(d)(i); Protection of the Environment Operations Act 1997 (NSW) ss 246(1)(a) and 247(1)(a); Environmental Protection Act 1994 (Qld) ss 501(1) and 502A; Environment Protection Act 1993 (SA) s 133(1)(d)(i); Environmental Management and Pollution Control Act 1994 (Tas) s 63(1)(d)(i); Environmental Protection Act 1986 (WA) ss 99X(5), (6) and 99Y(1)(a). 431. Environment Protection Act 1997 (ACT) s 157(1)(d)(ii); Protection of the Environment Operations Act 1997 (NSW) ss 246(1)(b) and 247(1)(b); Environmental Protection Act 1994 (Qld) s 502(1), (3), (4); Environment Protection Act 1993 (SA) s 133(1)(d)(ii); Environmental Management and Pollution Control Act 1994 (Tas) s 63(1)(d)(ii); Environment Protection Act 1970 (Vic) s 65A(2), (4); Environmental Protection Act 1986 (WA) s 99Y(1)(a). 432. Environment Protection Act 1997 (ACT) s 127(1)(a); Protection of the Environment Operations Act 1997 (NSW) s 230; Environmental Protection Act 1994 (Qld) s 505(1)(b); Environment Protection Act 1993 (SA) s 104(1), (7)(a) (an application is made to the ERD Court). 433. Environment Protection Act 1997 (ACT) s 127(1)(b) (with leave of the court); Protection of the Environment Operations Act 1997 (NSW) s 219 (with leave of the court); Environmental Protection Act 1994 (Qld) s 505(1)(a) (the minister), (1)(c) (person whose interests are affected by the subject matter of the proceedings), (1)(d), (2), (3), (4) (someone else with leave of the court); Environment Protection Act 1993 (SA) s 104(1) (an application is made to the ERD Court), (7)(b) (whose interests are affected by the subject matter of the proceedings), (7)(c), (8) (with leave of the court). 434. Environment Protection Act 1997 (ACT) ss 127(1) and 128; Protection of the Environment Operations Act 1997 (NSW) ss 232–235; Environmental Protection Act 1994 (Qld) s 505(1); Environment Protection Act 1993 (SA) s 104(1)(a) (an application is made to the ERD Court). In New South Wales, a restraining order is an order of a court directing that any property of an offender is not to be disposed of, or otherwise dealt with, by the offender except in a manner and in such circumstances as are specified in the order: Protection of the Environment Operations Act 1997 (NSW) s 231; see generally Ch 8 Pt 8.2 Div 4. 435. Environment Protection Act 1997 (ACT) s 128(1); Environmental Protection Act 1994 (Qld) s 505(5); Environment Protection Act 1993 (SA) s 104(2). 436. Environment Protection Act 1997 (ACT) s 128(1)(c); Environmental Protection Act 1994 (Qld) s 505(6)(a)(i); Environment Protection Act 1993 (SA) s 104(1)(a). 437. Environment Protection Act 1997 (ACT) s 128(1)(d); Environment Protection Act 1993 (SA) s

104(1)(a). 438. Environment Protection Act 1997 (ACT) s 128(1)(e); Environmental Protection Act 1994 (Qld) s 505(6)(a)(i); Environment Protection Act 1993 (SA) s 104(1)(a). 439. Environment Protection Act 1970 (Vic) s 64A. 440. Protection of the Environment Operations Act 1997 (NSW) s 252(1), (2). 441. Protection of the Environment Operations Act 1997 (NSW) s 249; Environmental Protection Act 1994 (Qld) s 502(2)(d), (7) (monetary benefits order); Environment Protection Act 1993 (SA) s 133(1a); Environmental Protection Act 1986 (WA) s 99Z. 442. According to UNESCO; see . 443. Marine Pollution Act 2012 (NSW); Marine Pollution Regulation 2014 (NSW); Pollution of Waters by Oil and Noxious Substances Act 1986 (Vic); Pollution of Waters by Oil and Noxious Substances Regulations 2012 (Vic); Protection of Marine Waters (Prevention of Pollution from Ships) Act 1987 (SA); Transport Operations (Marine Pollution) Act 1995 (Qld); Pollution of Waters by Oil and Noxious Substances Act 1987 (Tas); Pollution of Waters by Oil and Noxious Substances Act 1987 (WA); Marine Pollution Act 1999 (NT). 444. For a note on this case, see Walker, ‘Quiet Achievements’ (2003) 20 EPLJ 12. 445. Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) and ‘mirror’ State legislation; see note 443. 446. Marine orders are a form of delegated legislation, similar to regulations. A full list of marine orders is available at . 447. See Protection of the Sea (Powers of Intervention) Act 1981 (Cth). 448. Protection of the Sea (Powers of Intervention) Act 1981 (Cth) ss 8–11. 449. Protection of the Sea (Powers of Intervention) Act 1981 (Cth) ss 8(2)(a), 9(2)(a) and 10(3)(a). 450. On this aspect, see White, ‘Navigational Rights in Sensitive Marine Environments: The Great Barrier Reef’ in Bateman and Rothwell (eds), Navigation Rights and Freedoms and the New Law of the Sea, Kluwer, 2000. 451. In Australia, claims may be brought in state supreme courts: Protection of the Sea (Civil Liability) Act 1981 (Cth) s 9. 452. Protection of the Sea (Shipping Levy) Act 1981 (Cth) s 5. The Protection of the Sea (Shipping Levy Collection) Act 1981 (Cth) is incorporated in, and must be read as one with, the Protection of the Sea (Shipping Levy) Act 1981 (Cth): Protection of the Sea (Shipping Levy) Act 1981 (Cth) s 4. 453. See Australian Maritime Safety Authority Act 1990 (Cth) s 48. 454. The Protection of the Sea (Civil Liability) Act 1981 (Cth) s 22A allows the Australian Maritime Safety Authority (AMSA) to recover costs and expenses in relation to prevention and mitigation of oil pollution damage from the owner or master of the vessel or any person who caused the discharge. Any amount of compensation for expenses and liabilities incurred by AMSA is a charge on the ship (s 21), which may be detained pending satisfactory arrangements for payment of the debt: s 22. 455. See the Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 (Cth). 456. Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 (Cth) s 31(1); Oil Fund Convention, as amended, art 3(1). 457. Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 (Cth) s 46A. Provision for a Supplementary Fund implements the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1992 done at London on 16 May 2003. The text of the 2003 Protocol is set out in Australian Treaty Series (2005)

ATNIF 21. 458. Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 (Cth) s 46J, adopting art 10 of the 2003 Protocol as part of the law of the Commonwealth. The amount of those contributions, and time for payment, is determined by arts 11 and 18 of the 2003 Protocol: ss 46K and 46L. 459. Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 (Cth) ss 46M–46Q. 460. Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 (Cth) ss 46S–46U. For rules relating to treatment of partnerships and unincorporated associations, see ss 46V and 46W. There are currently no regulations. 461. Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 (Cth) s 46E. 462. 2003 Protocol art 4(2)(a). 463. Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 (Cth) s 46F. The Supplementary Fund may also intervene in proceedings for compensation arising under the Protection of the Sea (Civil Liability) Act 1981 (Cth) Pt II; Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 (Cth) s 46G. 464. Discharges may be permitted under prescribed conditions or in circumstances involving emergencies; for example, the discharge occurred in compliance with conditions of discharge relating to the place, rate and ratio (to cargo) of discharge. 465. Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) ss 9 (prohibition on discharge of oil or oily mixture (subject to various exceptions)) and 10 (prohibition on discharge from an Australian ship of an oil residue into the sea). The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) applies both within and outside Australia and extends to every external territory and to the exclusive economic zone: s 6. Particular provisions of the Act may not apply where there is a relevant state or territory law applying: see, for example, Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) s 9(1B)(b)(i). And see Marine Pollution Act 1999 (NT) s 14; Marine Pollution Act 2012 (NSW) s 12–17; Transport Operations (Marine Pollution) Act 1995 (Qld) s 26(1); Protection of Marine Waters (Prevention of Pollution from Ships) Act 1987 (SA) s 8(1); Pollution of Waters by Oil and Noxious Substances Act 1987 (Tas) s 8(1); Pollution of Waters by Oil and Noxious Substances Act 1986 (Vic) s 8(1); Pollution of Waters by Oil and Noxious Substances Act 1987 (WA) s 8(1). 466. For an explanation of strict liability, see 20.40 and following. And on principles of sentencing see, for example, Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104. 467. Marine Pollution Act 1987 (NSW) s 8(1). 468. See, for example, R v Mattrim Marine (District Court of Queensland, 20 June 2005), where the owners were fined A$180,000 in respect of a spill of 9300 litres; Environment Protection Authority v Reederei Suderelbe GmbH & Co Schiffarhts Kg (RSS) (unreported, Melbourne Magistrates’ Court, 20 December 2005) where the owners were fined over $1,000,000 and the master $20,000 in respect of a spill of 230 tonnes of contaminated ballast water. 469. Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) ss 572A–F. 470. Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) ss 585–590A. 471. Sections 26D(1)–(5) and 26BC (Antarctic Area). 472. Section 26D(5)–(7). 473. Section 26DAA. 474. Sections 26F and 26FE. 475. Section 26FC.

476. Sections 26FA and 26FB. 477. Section 26FD. 478. Section 26A. 479. Sections 26AB and 26B. 480. Part IIID. 481. International Convention on the Control of Harmful Anti-fouling Systems on Ships (London, 5 October 2001); [2002] ATNIF 18. 482. ‘Organotin compound’, ‘biocide’ and ‘anti-fouling system’ have the definitions given in the Convention: Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 (Cth) s 3. The Act applies to every external territory and extends to acts, omissions, matters and things outside Australia (unless the contrary intention appears): s 6. ‘Ship’ has the same meaning as in the International Convention on the Control of Harmful Anti-fouling Systems on Ships (London, 5 October 2001); [2002] ATNIF 18 art 2, but does not include a ship that is being used for noncommercial purposes by the Commonwealth, a state or a territory; or the government of a foreign country. 483. Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 (Cth) s 8. 484. Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 (Cth) s 9. 485. See generally Great Barrier Reef Marine Park Act 1975 (Cth) (GBRMPA) Pt V 486. Great Barrier Reef Marine Park Act 1975 (Cth) (GBRMPA) ss 38AA and 38AB. 487. See, for example, Great Barrier Reef Marine Park Act 1975 (Cth) (GBRMPA) ss 38DD and 38EE. 488. Great Barrier Reef Marine Park Act 1975 (Cth) (GBRMPA) ss 59A–59M. 489. South Pacific Nuclear Free Zone Treaty Act 1986 (Cth); Australian Radiation Protection and Nuclear Safety Act 1998 (Cth); Atomic Energy Act 1953 (Cth); Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) Pt 3 Div 1 Subdiv E (approvals for nuclear actions); Radiation Protection Act 2006 (ACT); Radiation Protection Act 2004 (NT); Radiation Control Act 1990 (NSW); Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (NSW); Radiation Safety Act 1999 (Qld); Radiation Protection and Control Act 1982 (SA); Radiation Protection Act 2005 (Tas); Radiation Act 2005 (Vic); Radiation Safety Act 1975 (WA). 490. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) Pt 3 Div 1 Subdiv E. 491. South Pacific Nuclear Free Zone Treaty Act 1986 (Cth) ss 8–13. As to the meaning of ‘nuclear explosive device’, see s 4(1); South Pacific Nuclear Free Zone Treaty (Rarotonga, 6 August 1985); Aust TS 1986 No 32 art 1(c). 492. Atomic Energy Act 1953 (Cth); Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 21 and 22A. ‘Nuclear action’ is defined in s 22 as: (a) establishing or significantly modifying a nuclear installation; (b) transporting spent nuclear fuel or radioactive waste products arising from reprocessing; (c) establishing or significantly modifying a facility for storing radioactive waste products arising from reprocessing; (d) mining or milling uranium ore; (e) establishing or significantly modifying a large-scale disposal facility for radioactive waste; (f)

de-commissioning or rehabilitating any facility or area in which an activity described in paragraph (a), (b), (c), (d) or (e) has been undertaken;

(g) any other action prescribed by the regulations.

Processes for EA and approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) are set out in Chapter 6. 493. Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (NSW); Nuclear Activities (Prohibitions) Act 1983 (Vic). 494. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 21–22A. 495. For example, Radiation Protection Act 2006 (ACT) s 12; Radiation Protection Act 2004 (NT) s 11; Radiation Control Act 1990 (NSW) ss 7 and 8; Radiation Safety Act 1999 (Qld) s 17; Radiation Protection Act 2005 (Tas) s 8. 496. The Code of Practice on Radiation Protection and Radioactive Waste Management in Mining and Mineral Processing 2005 cl 3.8. The Code applies to the mining and processing of ores for the production of uranium or thorium concentrates, and the separation of heavy minerals from mineral sands ore (cl 2.3.1) and to the management and disposal of radioactive wastes (including on-site disposal of tailings and other bulk waste, operational wastes, contaminated clothing, plant or equipment, and residues arising from clean-up: cl 3.4.5). The Code also provides that the Code of Practice for the Near-Surface Disposal of Radioactive Waste in Australia 1992 (Cth) may provide an alternative disposal regime: cl 3.4.5. 497. Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth). The preceding legislation was the Ozone Protection Act 1989 (Cth) (repealed), which was amended (including being renamed) by Ozone Protection and Synthetic Greenhouse Gas Legislation Amendment Act 2003 (Cth). 498. Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) s 3. The Act uses the term ‘scheduled substances’ to describe ozone depleting substances and synthetic greenhouse gases: s 13(9). These are identical to the ‘controlled substances’ that are referred to in the Montreal Protocol. 499. ‘Non-Montreal Protocol’ countries are defined in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) s 41(3). 500. Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (Cth). These regulations largely replace state and territory schemes, though some state legislation has been retained for certain purposes: see, for example, Ozone Protection Act 1989 (NSW) (there are no regulations, however, under this Act). 501. See Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth) s 69C; Agricultural and Veterinary Chemicals (Administration) Regulations 1995 (Cth) regs 1.3 (definition), 3.05 (prescribed agreements are: Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam Convention) 1998) (given force in Industrial Chemicals (Notification and Assessment) Act 1989 (Cth) Pt 5A), and the Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention) 2001. 502. Industrial Chemicals (Notification and Assessment) Act 1989 (Cth) s 3(a). See Pt 5A, which provides for the meeting of certain obligations of Australia under the Rotterdam Convention by imposing duties on the director regarding the exchange of information on industrial chemicals. 503. Including the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (SPREP), and its Protocol on dumping, to which Australia is a party. 504. Biosecurity Act 2015 (Cth) ss 270 and 298. Exceptions are set out in ss 271–284 and 299. 505. Biosecurity Act 2015 (Cth) ss 285–290. 506. Biosecurity Act 2015 (Cth) ss 291–296. 507. Biosecurity Act 2015 (Cth) s 302. The Act also confers powers to give directions about movement of the vessel; Biosecurity Act 2015 (Cth) ss 303 and 304. It is an offence to contravene a direction; Biosecurity Act 2015 (Cth) s 305.

[page 689]

Chapter 16 Waste and Contaminated Lands There are two parts to this chapter: Part A Waste Management, including international obligations relating to hazardous wastes; and Part B Contaminated Lands

PART A: WASTE MANAGEMENT Introduction 16.1 All pollution can be regarded as waste; and the emission into the environment, transport and disposal of waste is governed by the legislation discussed in Chapter 15. Today, however, government policy is, rightly, to regard waste as something that need not be created in the first place, or at least as a resource that can be recovered and reused or recycled rather than dumped onto land or emitted into air or water. The modern tendency is to view problems of waste management as essentially problems in efficient resource management, which require joint government, community and industry effort to resolve.1 In developing policy and regulatory approaches,2 legislation generally requires that resource management options for ‘waste’ are to be considered in the following order:3 (1) avoidance of unnecessary resource consumption; (2) resource recovery (including reuse, reprocessing, recycling and energy recovery); and (3) treatment, containment and disposal. [page 690] For example, in Victoria, producers of prescribed industrial waste are required to assess processes that produce or have the potential to produce prescribed industrial waste against prescribed tests to discover whether there are opportunities for avoidance, reduction, reuse or recycling, or treatment or

reprocessing.4 In New South Wales, the EPA may issue guidelines establishing waste and sustainability improvement standards to be met by local councils in relation to the use, recovery, recycling, processing and disposal of waste, and improvements in environmental sustainability practices and services.5

Waste minimisation and resource recovery 16.2 In all jurisdictions, waste reduction measures such as reuse and recycling of materials are provided for in the environment protection and waste legislation and the regulations and policies made under that legislation.6 Strategic directions may be implemented by statewide, regional and local resource recovery policies, and applied by regulatory controls to premises and activities, for example, through waste management plans, required as a condition of a licensed operation.7 16.3 Specific legislative regimes may also guide the implementation of such objectives. In Queensland, for example, the objects of waste avoidance, waste [page 691] minimisation and resource recovery8 are to be guided by the waste and resource management hierarchy9 and the waste management principles;10 and assisted by the preparation of a state waste management strategy,11 and strategic planning by both state and local government for waste reduction and recycling.12 Provision is made by the legislation for the creation, at waste disposal sites, of separate resource recovery areas, limited to the following operations: (1) storing waste for transport to another place for reprocessing or recycling; (2) sorting waste to extract resources for transport to another place for reprocessing or recycling; (3) an activity that is ancillary to sorting of waste; and (4) another activity prescribed under a regulation.13 The advantage of this is that the resource recovery area is not subject to the levies that would otherwise normally be applied to the waste disposal site.14 A resource may also be approved for beneficial use, such as reuse or recycling.15 A resource so approved is not then ‘waste’ as defined under the Environmental Protection Act 1994 (Qld) and so will not be subject to the regimes applying to ‘waste’ under that Act, unless delivered to a levyable waste disposal site or otherwise dealt with unlawfully, such as by dumping.16

[page 692] Other jurisdictions may also exempt ‘waste’ that is to be used for resource recovery from the normal regulatory controls that would otherwise apply to waste.17 16.4 In Victoria, waste minimisation is encouraged through statewide and regional resource recovery plans18 and the adoption of a wide range of industry-specific plans and activities. An industry may also be specified in an order as being subject to declared environment improvement plans,19 and these plans may make specific reference to waste policies that the industry must adhere to.20 The legislation also provides for the creation of agreements between the EPA and industry, known as sustainability covenants, under which the industry agrees to increase the efficiency with which the person or body uses resources to produce products or services, and to reduce the ecological impact of those products or services and of the processes by which they are produced.21 An industry may be declared by the Governor-in-Council, on the recommendation of the EPA, as an industry with potential to have a significant impact on the environment.22 Where a declaration and a covenant are in force, any industry member who is not a signatory to the covenant may be required by the EPA to produce a statement of ecological impact.23 Ecological impact statements may also be required of an industry member where no covenant is in force but a declaration has been made.24 Where a statement of ecological impact is presented stating: (a) that an enterprise or process is a significant user of resources and that the resource use efficiency of the enterprise or process can be improved; or (b) that an enterprise or process has, or the products or services produced by an enterprise or process have, major actual or potential ecological impacts and that those impacts can be reduced, the EPA may require that specific plans, or [page 693] practices or audits or other action be taken to address major inefficiencies or impacts.25 It is an offence to fail to comply with a request from the EPA to prepare an ecological impact statement or undertake the measures of redress required by the EPA.26 The EPA must keep a list of sustainability covenants to which it is a signatory and of ecological impact statements.27 The EPA may also undertake audits to:28

(a) assess the ecological impact of an industry or part of an industry; (b) assess product stewardship approaches; and (c) determine where resource use efficiencies may be gained and where ecological impacts may be reduced. Metropolitan councils must perform their waste management functions in a manner that is consistent with the relevant strategic plan.29 The legislation provides expressly for the declaration of the waste management policy to be observed with respect to any aspect of the management of waste in Victoria, including with respect to:30 (1) the generation, storage, reprocessing, treatment, transport, containment and disposal, and generally the handling, of waste; (2) the procedures to be implemented in the recycling, recovery, reclamation and reuse of waste and the use of recycled substances; (3) the methods by which specified substances are to be disposed of; (4) the routes and methods by which waste is to be transported; (5) the location of treatment and disposal plants; (6) the allocation of responsibility for waste management operations and disposal; and (7) the use and disposal of notifiable chemicals. Encouragement for the diversion of recoverable waste away from landfill is given by providing for rebates of the normal landfill levies that would otherwise apply were the waste to be disposed of at landfill.31

Product stewardship and extended producer responsibility 16.5 Avoidance of unnecessary resource consumption can be encouraged by the adoption of extended producer responsibility (EPR) and product stewardship schemes. An ‘extended producer responsibility scheme’ is a scheme for giving effect to an environmental policy in which the producer’s and supplier’s responsibility for a product (which includes any substance), including physical or financial responsibility, [page 694]

is extended to the post-consumer stage of the product’s life cycle.32 In other words, producers33 of goods and services will remain legally responsible for their products throughout the life cycle of those products,34 which includes dealing with the ‘dead’ product. Any such scheme will include the concept of ‘product stewardship’; that is, producers and users of goods and services have a shared responsibility with government to manage environmental impacts throughout the life cycle of the goods and services, from the extraction of virgin materials, to manufacturing and consumption, and through to and including ultimate disposal and post-disposal consequences.35 16.6 The policy behind EPR is that making producers and suppliers responsible for their waste products will drive product design and packaging to create fewer waste components and more reuse and recycling. Alternatives to EPR, for example prohibiting creation and sale of products,36 or regulating directly for reuse and recycling, are not at present seen to be viable policy options. An EPR scheme will of course only be effective in conjunction with realistic charges for waste disposal that make avoiding the creation of waste cheaper than the costs of disposing of it. Increasing charges to dispose of waste at landfill is one means of adjusting the costs of waste treatment and disposal to make reuse and recycling commercially viable.37 For example, under the Protection of the Environment Operations (Waste) Regulation 2014 (NSW) Pt 2, certain scheduled waste facilities are charged a waste levy for each tonne of waste received at a landfill. Landfills that recycle received waste may claim a refund of the levy when the product leaves their premises. Deductions from the levy can be claimed when waste is transported from a waste facility to another place for lawful reuse, or to another facility for lawful recycling, processing, recovery or disposal, or where waste is used for an approved purpose. Approved purposes can include applications to land, for example composts,38 and use of waste as fuel.39 [page 695] 16.7 In New South Wales, legislation also provides for voluntary EPR schemes for products identified in a priority statement.40 The minister may regulate to implement such a scheme if satisfied, among other things, that there is no effective voluntary scheme in place.41 This scheme, however, appears to have been wound back in order to concentrate more upon the implementation of the national scheme for product stewardship: see 16.13. Provision is also made in Western Australia for voluntary product stewardship schemes; and the possible enforced application of extended producer responsibility.42

In the Australian Capital Territory, the Waste Strategy 2011–2543 states (at page 28) that: Price signals are an important mechanism to influence people’s behaviour. Landfill charges create a disincentive to send waste to landfill while drop-off facilities that are free or charge nominal fees for specific types of recyclable waste (for example, garden waste, paper cardboard and other recyclables, oil, batteries, and in the future, e-waste) will encourage people to sort and deliver waste to these facilities. The aim of future landfill and facility charging will be to encourage resource recovery and discourage waste being dumped or going to landfill. Regulation can also complement price signals, for example the banning of televisions, computers and other recyclable wastes from going to landfill.

Beverage containers 16.8 Until recently, the only mandated EPR scheme running in Australia was the scheme for beverage containers prescribed in South Australia under the Environment Protection Act 1993 (SA),44 by comparison to Europe, where a number of mandatory schemes are in place covering vehicles,45 electrical equipment46 and packaging47 waste. The South Australian scheme, which has been running uninterrupted since the original Beverage Container Act 1975 (SA), provides that beverage containers sold in the state must be approved and display approved markings indicating that the containers are returnable to retailers or a collection depot, depending on the type of container, for a refund. An application for approval may be refused if the container material, labelling or refund marking is considered unsuitable for recycling, reuse or other disposal, or there is no ongoing, effective and appropriate waste management arrangement in place in relation to the class of containers.48 Sale or supply of certain containers is prohibited. Following the decision of the Full Court in Fell v Can Recycling (SA) [page 696] Pty Ltd [2003] SASC 358, to the effect that refunds had to be made irrespective of whether the containers presented had been sold within or outside the state, the Act now provides that it is an offence to attempt to claim a refund for containers sold outside South Australia or a jurisdiction having equivalent legislation.49 16.9 The Northern Territory has also enacted legislation, similar to South Australia’s, to introduce a ‘cash for containers’ scheme.50 The Environment Protection (Beverage Containers and Plastic Bags) Act 2011 (NT) establishes a container deposit scheme (CDS) that prohibits the supply in the Northern

Territory of regulated containers unless they are approved containers. The CDS provides that empty approved containers can be delivered to approved collection depots for a refund of the refund amount for the containers; and imposes conditions on approvals to ensure the reuse, recycling or other appropriate disposal of returned containers. The CDS does not require beverage retailers either to accept delivery of empty containers or to pay the refund amount in exchange for delivered containers; though a beverage retailer may, however, obtain a collection approval to operate a collection depot (for example, a reverse vending machine) at the retailer’s premises for the payment of refund amounts. New South Wales has announced that it intends to introduce a container deposit scheme to begin operation in 2017.51

Used packaging materials 16.10 In all jurisdictions there is provision for the control of waste in the form of used packaging materials as defined in the National Environment Protection (Used Packaging Materials) Measure 2011 (the Australian Packaging Covenant).52 [page 697] Under the Australian Packaging Covenant, brand owners53 of products participate in a national scheme intended to recover, reuse and recycle used consumer packaging materials.54 A state regulatory basis for the Australian Packaging Covenant is aimed at ensuring that signatories to the Australian Packaging Covenant are not competitively disadvantaged in the marketplace by fulfilling their commitments under the Australian Packaging Covenant.55 This also allows regulatory authorities to, for example, set targets for recovery of material used in packaging products; and to implement a review of packaging design.56 The Australian Packaging Covenant includes methods for collecting and reporting relevant data, designed to enable participating jurisdictions to assess the achievement of the desired environmental outcomes of the Australian Packaging Covenant; and requires them to report annually to the National Environment Protection Council on progress against the goal of the national environment protection measure.57 16.11 The Product Stewardship Act 2011 (Cth) requires that 12 months’ notice be given of any proposal to regulate a class of products under that Act.58 Such a notice has been given in relation to packaging, which might, in the future, result in the Covenant being brought under the control of that Act as a co-regulatory scheme or approved voluntary scheme.59

Plastic bags 16.12 The Australian Capital Territory, the Northern Territory and Tasmania have enacted legislation60 that prohibits retailers supplying plastic bags61 to customers for the purpose of carrying goods bought from that retailer.62 [page 698]

Product stewardship 16.13 Product stewardship may be said to be an approach to reducing the environmental and other impacts of products by encouraging or requiring manufacturers, importers, distributors and other persons to take responsibility for those products.63 Product stewardship has traditionally been encouraged through voluntary schemes such as the Australian Packaging Covenant. Recently, however, a national scheme for product stewardship has been introduced by the Product Stewardship Act 2011 (Cth).64 This Act makes provision for mandatory, co-regulatory and voluntary action.65 Mandatory product stewardship places a legal obligation on parties to take specified actions in relation to a product.66 The action must relate to: (a) avoiding generating waste from products; (b) reducing or eliminating the amount of waste from products to be disposed of; (c) reducing or eliminating hazardous substances in products and in waste from products; (d) managing waste from products as a resource; and (e) ensuring that products and waste from products are reused, recycled, recovered, treated and disposed of in a safe, scientific and environmentally sound way.67 These requirements may, for example, encompass the labelling of products, making arrangements for recycling products at end of life, or requiring a deposit and refund scheme to be applied to a product. 16.14 Co-regulatory product stewardship schemes are delivered by industry and regulated by the Australian government.68 The exact requirements (for example, where there is a requirement to meet a certain recycling target) and details of the activities to be carried out by a scheme operator will be detailed separately in regulations for each scheme.69 A person

becomes a liable party in relation to a class of products if the person has at any time manufactured, imported, distributed or used a product in that class in Australia.70 The intended outcomes from such a scheme mirror the intended outcomes for a mandatory scheme.71 Following a decision by all Australian environment ministers in 2009, televisions and computers are the first products to be regulated under the legislation. The Product Stewardship (Televisions and Computers) Amendment Regulations 2011 (No 1) (Cth) subjects these products to a coregulatory arrangement under the National Television [page 699] and Computer Recycling Scheme commencing from 2014–15. The Regulations do not apply to computers manufactured in Australia;72 and also only apply to constitutional corporations who manufacture in, or import into, Australia a specified number of units: 5000 televisions, 5000 computers or printers, or 15,000 units of computer products.73 The Regulations expresses its desired outcomes in terms of recycling and material recovery targets, and reasonable access to collection services, to enable this to be achieved.74 The material recovery target is set at 90 per cent of the products in a class of products, based on weight.75 The Regulations also deal with data collection, record keeping and reporting.76 Before regulations are made specifying liable parties for the purposes of either co-regulatory or mandatory product stewardship, or accrediting a voluntary arrangement, the minister must be satisfied that the objects of the Act will be met, and that certain criteria will be satisfied.77 The majority of schemes, however, are likely to be voluntary schemes accredited under the legislation. To be accredited, applicant organisations must meet specific requirements that ensure they carry out their activities in a transparent and accountable manner, and show that they can actually achieve what they claim.78 A voluntary product stewardship scheme for end-of-life tyres was introduced in 2014.79

Waste activities, facilities and transport 16.15 The purpose of product stewardship and other reuse and recycling schemes is to avoid the production of ‘waste’. Waste is generally defined as encompassing any discarded, rejected, unwanted, surplus or abandoned substance.80 Importantly, a

[page 700] substance is not precluded from being classified as ‘waste’ merely because it may be processed, recycled, reused or recovered;81 though resource recovery may be encouraged by limiting the breadth of the definition or by providing for exemptions for materials that may be safely reused.82 Definitions of ‘waste’ then generally further define categories of waste for the purposes of specific regulation83 — for example, into putrescible and non-putrescible, liquid, solid, or hazardous84 — and then into even more tightly defined categories such as clinical,85 building and demolition, green waste,86 waste tyres87 and wood waste.88 Classifications of waste89 will direct appropriate forms of management, including licensing, including approved reuse.90 [page 701] 16.16 Definitions of waste, because of their potential complexity and impacts, can give rise to problems of statutory interpretation. For example, in Environment Protection Authority v Anning [1998] NSWLEC 135, the defendant escaped conviction for dumping used tyres on land because the offence required disposal of a substance that was waste; and the court concluded that tyres, although relevantly made up of substances, were not, in themselves, a substance.91 Questions often arise whether a particular byproduct from an operation that may have a further use is ‘waste’.92 For example, demolition material intended for clean fill has been argued (unsuccessfully) not to be waste; the legislation in question was interpreted as not making any distinction between waste and fill.93 On the other hand, the transport of broken bricks and tiles for the purpose of building a road has been held not to enliven the offence of unlawfully transporting ‘waste’. The materials were not waste because the material had a value in addition to the fees the transporter could earn from transportation; there was a demand for such materials.94 Modern definitions that effectively capture reusable or recyclable materials but then exempt approved uses tend to head off such challenges, but not always. In Resourceco Pty Ltd v Environment Protection Authority [2007] SAERDC 31 at [34], the court commented: … the definition recognises that at some point waste material might cease to be waste. That point is when the material or a component thereof has changed its character, through the processed being sold and thus becoming wanted, or through being recycled, reprocessed, recovered or purified.

In this case, the defendant had been charged with unlawfully accepting waste on land without an environmental authorisation. The defendant

claimed that residual waste from the processing of building and demolition waste was not waste but essentially clean fill. The court made a distinction between material that had been captured for reuse and was in the process of being recycled, as waste that had changed its character and was no longer waste, and material that without further processing was useless and destined for landfill. An intention to further process the material to recover useful components was insufficient to result in a change of character from waste. In Victoria, ‘prescribed industrial waste’ is defined as “any industrial waste … other than industrial waste … that … has a direct beneficial use and has been consigned for that use”’.95 In Maddingley Brown Coal Pty Ltd v Environment Protection Authority [2013] VSC 582 contaminated soil excavated at one site and used, with regulatory approval, [page 702] at another site, was held to be a beneficial reuse; but not one actually consigned for that use, the interpretation of which involved consideration of the use for which the delivery had been made rather than the use to which the delivered item had been put. The facts established that the purpose of the consignment had been identified as ‘landfill’, whereas the actual use to which the consignment had been put had been for building a firewall. 16.17 Environment protection legislation regulates the development and operation of waste activities and facilities and transport of waste to such facilities. Facilities are generally any premises used for the storage, treatment, processing, sorting or disposal of waste.96 Waste activities and facilities that trigger certain thresholds97 are subject to licensing requirements;98 and, of course, as potentially significant development, may be subject to rigorous planning controls.99 It is an offence to use land for the purposes of a waste facility without lawful authority.100 In Hardt v Environment Protection Authority (2007) 156 LGERA 337, the New South Wales Court of Appeal held that to commit the offence of permitting land to be used as a waste facility, it was not necessary that the defendant understood the legal definitions of ‘waste’ and ‘waste facility’. It was enough that the accused understood that he was engaged in the physical activity of storage on land; and that awareness of the physical actions of storage carried with it an awareness that the premises would be used as a waste facility. In other words, the prosecutor was not required to demonstrate that the use of the land was for the purpose of a waste facility, merely that, in the circumstances, there was such a use.101

[page 703] 16.18 The legislation also usually introduces provisions designed to ensure the safe storage and transport of wastes;102 and may require records to be kept of movements of waste from consignors, transporters and receivers, so that those movements can be tracked at any point in time.103 It is usually an offence to transport waste to a place that cannot lawfully be used as a waste facility.104 Specific provisions may apply to ‘littering’105 and to the discharge of ballast water from ships.106 The conditions of a licence may stipulate requirements relating to the creation, collection, storage, handling, transportation, treatment, processing, recovery, recycling, reuse or disposal of waste; maintenance of containers and vehicles; preparation and compliance with an environmental waste management plan; and post-closure requirements for waste facilities.107 Breach of the conditions of a licence, for example by handling waste not authorised by the licence, may trigger a criminal prosecution.108

International movement of hazardous substances and waste 16.19 Developed industrialised countries have a bad record of seeking to export their hazardous wastes to developing nations for disposal. Globally, this has proved to be a matter of real conflict, with many developing nations seeking to ban the practice. Countries of the European Union are now, for example, under regional arrangements, [page 704] banned from exporting to countries in the Pacific, Caribbean and Africa that are parties to this agreement. 16.20 The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (the Basel Convention) does not yet ban this practice globally, but it does ban the export of an agreed list of hazardous material from OECD countries (including Australia) that is designed for treatment in non-OECD countries.109 The Convention requires parties basically to treat or manage their own waste; and transboundary movement of wastes will only be allowed if the state of export does not have the technical capacity and the necessary facilities to dispose of the wastes in an

environmentally sound and efficient manner,110 or the wastes in question are required as a raw material for recycling or recovery industries in the state of import. For the Convention to apply, the following circumstances must be satisfied: the hazardous substance must be intended for final disposal;111 the Convention does not apply therefore to movements of industrial and agricultural chemicals intended for use (note, however, the existence of the 1998 Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade); and a state party must define the waste as hazardous, either in the annexes to the Convention, or in domestic law as notified to the Convention Secretariat. 16.21 This Convention is implemented in Australia through the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth). Section 17 of this Act allows the minister to grant an import or export permit (a Basel permit) if satisfied that dealing with the hazardous waste112 concerned in accordance with the import proposals or export proposals would be consistent with the environmentally sound [page 705] management113 of the hazardous waste; that a country to which export is proposed has given written consent to the grant of the permit, and that the hazardous waste will be allowed to be transported through any country through which the waste is proposed to be transported; and that the applicant is a suitable person to be granted a Basel permit. The minister may decide not to grant the permit if the minister thinks that it would not be in the public interest; or that there is another way in which the hazardous waste could be satisfactorily dealt with, including disposal within Australia. In Re Australian Refined Alloys Pty Ltd and Minister for the Environment and Heritage [2003] AATA 247, the Commonwealth Administrative Appeals Tribunal held, in relation to the public interest criterion, that (at [100]): Section 13C of the Act provides for regulations to be made to give effect to Article 11 (of the Basel Convention) arrangements. The OECD decision of 30 March 1992 is such an arrangement. Article 11 recognises that Parties may enter into agreements or arrangements for the transboundary movement of hazardous wastes provided such movements are compatible with the environmentally sound management of hazardous wastes. The object of the 1989 Act stated in s 3 is to regulate the export, import and transit of hazardous waste to ensure that it is managed in an environmentally sound manner so that human beings and the environment, both within and outside Australia, are protected from the harmful effects of the waste.

The aims of the Act are to give effect to the Basel Convention and Article 11 agreements and arrangements. Thus, it is clear to the tribunal that the legislation requires that ‘the public interest’ be seen in a broader context than just the Australian public interest, notwithstanding the Minister’s submissions above. That context permits the interests of human beings and the environment of neighbouring countries who may be affected by a decision to be taken into account, in addition to relevant Australian interests.

In Dodd & Dodd Group Pty Ltd v Minister for Sustainability, Environment, Water, Population and Communities [2010] AATA 957, the tribunal also affirmed the minister’s decision to refuse a licence to export used lead acid batteries (ULABs). The tribunal stressed that the applicant’s own, and the broader industry’s, commercial interests were clearly outweighed by Australia’s obligations under the Basel Convention and the associated public interest in developing recycling facilities in Australia for ULABs generated in Australia. 16.22 The Convention to ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region (the Waigani Convention) was adopted in 1995. Both Australia and New Zealand are parties to the Waigani Convention, which is an agreement under the Basel Convention art 11 [page 706] (regulations that give effect to an arrangement which is a bilateral or regional agreement regarding transboundary movements of hazardous waste). In the Preamble to the Waigani Convention, the parties resolve ‘to regulate and facilitate the environmentally sound management’ of hazardous wastes. Article 10(1) states that the parties: … shall cooperate with one another, non-Parties and relevant regional and international organisations, to facilitate the availability of adequate treatment and disposal facilities and to improve and achieve the environmentally sound management of hazardous wastes.

The Hazardous Waste (Regulation of Exports and Imports) (Waigani Convention) Regulations 1999 (Cth) give effect to the Waigani Convention ‘except so far as that the Convention relates to radioactive wastes’. The minister may issue ‘special permits’ for import, export and transit of hazardous wastes under this Convention.114 Movements of hazardous wastes can, of course, still occur: between developing nations, from developing to developed nations, and even vice versa if the amendment on bans from OECD countries has not been accepted by the participants. On the other hand, countries may notify other participants under the Convention of import bans.

The minister must not grant a Basel import, export or transit permit if the minister is satisfied that the grant could result in hazardous waste being brought into Antarctica.115 Neither must the minister grant a Basel import or export permit authorising the import of hazardous waste from or the export of hazardous waste to a foreign country that is not a party to the Basel Convention.116

Imported waste 16.23 If a person imports hazardous waste without a permit or ministerial order,117 or in breach of permit conditions, the minister may order the waste to be dealt with in a specified way, including export.118

Remediation or mitigation of damage 16.24 The 1999 Protocol to the Basel Convention on Liability and Compensation addresses the issue of harm that arises through the illegal transboundary movement and disposal of waste. Generators, exporters, importers and dealers of waste may all be liable at various parts of the trading cycle. The compensation fund is financed by voluntary contributions from state parties. Additional fault-based liability may also be targeted at any person whose failure to comply with national laws implementing the Convention, or whose intentional or negligent conduct, causes damage. [page 707] If a person has imported, exported or carried out a transit proposal in relation to hazardous waste in contravention of the Commonwealth legislation,119 and the minister is satisfied that this has resulted in significant injury or damage to human beings or the environment, the person may be required to take steps to remedy or mitigate the damage.120 The minister must not order the person to pay compensation.121 If a person fails to comply with a ministerial order requiring some action to be taken122 the minister may arrange for the necessary measures to be undertaken.123 The Commonwealth may then recover an amount equal to the costs of carrying out the action as a debt in a court of competent jurisdiction.124

PART B: CONTAMINATED LANDS

Introduction 16.25 Contaminated land may be defined as ‘land in, on or under which any substance is present at a concentration above the concentration at which the substance is normally present in, on or under (respectively) land in the same locality, being a presence that presents a risk of harm to human health or any other aspect of the environment’.125 Contaminated land is land that has been contaminated by past industrial, agricultural or commercial practices, not by present activities. Pollution laws (Chapter 15) are applied to currently operating businesses and ongoing activities; contaminated lands legislation applies to historical legacies left over from past activities on the land.126 Common land uses that may cause contamination include service stations, cattle dips, tanneries, wood treatment sites, landfills, fuel storage and refuse tips.127 [page 708] 16.26 Land contamination is not only a potentially serious source of pollution of the environment, and a potential health risk, but also a major issue in development of land and conveyancing, where the value of an investment may be badly affected once contamination is discovered,128 and rehabilitation costs can be prohibitive.129 Most states keep a public register of contaminated sites and make records available.130 Usually, the original polluter has disappeared from the scene and the land is owned by someone entirely unconnected with the activities that left the land contaminated. This raises difficult policy issues. The current owner or occupier of the contaminated land is unlikely to be at fault but is nevertheless saddled with the problem. On the other hand, the original polluter may not have been at fault either; contamination may have happened quite lawfully, reflecting the state of science and social values at the time. The question then arises: does the contamination need cleaning up; and if so, who should pay?131 Disputes can also arise about which party is liable for clean-up costs following sale or lease of a contaminated site; and this may depend upon the conditions of the contract that governs the transfer.132

Planning controls 16.27 The policy response takes the view that unless there are significant risks to the environment or public health, then the market can be left to deal with the problem of contaminated sites. The value of the land will reflect the

costs of clean-up, and that will be but one, although likely a major, factor to take into account in deciding whether to invest in a proposal to redevelop the land. If there is an economic incentive for clean-up, usually to convert land to a higher use such as residential subdivision, then the costs of clean-up will be factored into the costs of doing business. [page 709] This depends of course on whether the contamination has been identified prior to purchase and before obtaining development consent. In Armidale City Council v Alec Finlayson Pty Ltd (1999) 104 LGERA 9, the council was found negligent in giving approval for subdivision over a contaminated site, and damages amounting to several million dollars were awarded to the developer by the High Court. This has resulted in much greater focus being now given to identifying contaminated sites before planning powers are exercised. 16.28 In New South Wales, for example, the purpose of SEPP 55 — Remediation of Land is to ensure that land is not zoned, or development consent granted, unless the planning authority has considered risks of contamination and either dismissed them, ascertained that the contamination will not affect the proposed zoning or use, or, if it will, that remediation will render the land suitable for the proposed zoning or use.133 Land that has to be subjected to such consideration, apart from known investigation areas, includes land with a history of land use that suggests potential for contamination134 and land earmarked for proposed uses that could be affected by contamination, including residential, educational, recreational and childcare. The applicant for rezoning or development consent may be asked to undertake preliminary investigations and furnish a report to the planning authority. If warranted, the authority may then require a more detailed investigation.135 Remediation work is categorised as either category 1, which may be undertaken only with the consent of the consent authority;136 and category 2, which may be undertaken without such consent.137 The consent authority must not refuse development consent for category 1 remediation work unless the authority is satisfied that there would be a more significant risk of harm to human health or some other aspect of the environment from carrying out the work than there would be from the use of the land concerned (in the absence of the work) for any purpose for which it may lawfully be used.138 All remediation work [page 710]

must be carried out in accordance with the Guidelines,139 and the relevant authority must be informed when works have been completed.140 16.29 Compliance with SEPP 55 and the Guidelines should protect a local authority from legal liability in respect of its exercise of planning functions in relation to contaminated lands.141 The Environmental Planning and Assessment Act 1979 (NSW) (EPAA) now provides that a planning authority does not incur any liability in respect of anything done or omitted to be done in good faith by the authority in duly exercising any planning function of the authority in so far as it relates to contaminated land (including the likelihood of land being contaminated land) or to the nature or extent of contamination of land.142 And without limiting any other circumstance in which a planning authority may have acted in good faith, a planning authority is (unless the contrary is proved) taken to have acted in good faith if the thing was done or omitted to be done substantially in accordance with the contaminated land planning guidelines.143 16.30 Planning functions include the preparation or making of an environmental planning instrument, the processing and determination of a development application, and the furnishing of advice in a certificate under the EPAA s 149.144 In practice, before a purchaser commits to purchase land, advice will be sought from the local authority about any matters that may, or might in future, affect the land. In New South Wales, this is known as a s 149 certificate. The Contaminated Land Management Act 1997 (NSW) stipulates that for the purposes of a s 149 certificate, the following matters must be specified: (a) that the land to which the certificate relates is significantly contaminated land; (b) that the land to which the certificate relates is subject to a management order; (c) that the land to which the certificate relates is the subject of an approved voluntary management proposal; (d) that the land to which the certificate relates is subject to an ongoing maintenance order; and (e) that the land to which the certificate relates is the subject of a site audit statement.145 [page 711] Where contamination is threatening to migrate from the site, or is actually

moving off-site, creating significant environmental problems, then the market cannot necessarily be relied on to provide the solution; sterner measures may be required, including further regulatory intervention.146 16.31 In Victoria, a state environment protection policy (SEPP) applies to potentially contaminated land;147 that is, land used or known to have been used for industry, mining or the storage of chemicals.148 The SEPP requires that in making any amendments to a planning scheme that would allow potentially contaminated land to be used for a childcare centre, pre-school, primary school or residential uses (‘sensitive uses’), the planning authority must satisfy itself that the land will be suitable for the use. To this end, the planning authority must obtain an environmental audit certificate.149 The amended planning scheme must itself include a requirement that an environmental audit certificate is obtained before any sensitive use commences, or before any building work or other works are carried out.150 16.32 Once land is known to be contaminated then further planning provisions will apply. For example, in Queensland, where the administering authority serves a remediation notice requiring a site management plan and the site management plan is approved, the administering authority151 must record the details of the plan in the environmental management register.152 A local government must not, under an approval or other authority under the Sustainable Planning Act 2009 (Qld) or any other Act, allow the use or development of, or an activity to be carried out on, land in a way that contravenes a site management plan for the land.153 The EPA is a ‘concurrence agency’154 for a material change of use of premises or the reconfiguring of a lot involving contaminated land that is deemed ‘assessable development’ under a local government planning scheme,155 if the land is on the environmental management or contaminated land register. [page 712] 16.33 In Western Australia, if land is registered on the contaminated sites register,156 the Western Australian Planning Commission must not approve the subdivision of that land, or the amalgamation of that land with any other land;157 and a responsible authority158 must not grant approval under a planning scheme for any proposed development of that land, without seeking, and taking into account, the advice of the chief executive officer as to the suitability of the land for the subdivision, amalgamation or development. In New South Wales and Tasmania, specific regulatory requirements now apply to the commissioning and de-commissioning of underground petroleum storage systems.159

Assessing, reporting and managing contamination 16.34 Effectively, the powers of regulatory authorities to intervene and require clean-up depend on whether the contamination is significant enough, in terms of environmental or human health impacts, to warrant intervention.160 In New South Wales, a person whose activities have contaminated land, and an owner of land that has been contaminated (whether before or during the owner’s ownership of the land), must notify the appropriate regulator that the land has been so contaminated, as soon as practicable after the person becomes aware or ought reasonably to be aware161 of the contamination.162 This obligation only applies, however, in the limited circumstances prescribed in the section or by regulation, including that the contamination may foreseeably migrate onto neighbouring land or enter the surrounding environment.163 Preliminary investigation orders may then be served on relevant persons connected with the contamination or the land to investigate the nature and extent of possible contamination.164 16.35 If the regulator has reason to believe that land is contaminated and that the contamination is significant enough to warrant intervention, then it may declare the land to be significantly contaminated land.165 Responsibility for the contamination may devolve on persons in a variety of ways;166 though in determining who will be served with a management order to manage the contamination,167 the EPA is instructed to [page 713] choose an ‘appropriate person’ from among the range of interested persons in the following order:168 (a) a person who is responsible for significant contamination of the land (whether or not there may be other persons who are also responsible); (b) an owner of the land (whether or not the person is responsible for contamination of the land); (c) a notional owner169 of the land (whether or not the person is responsible for contamination of the land). The issue of management orders may be appealed to the Land and Environment Court.170

16.36 The EPA may decide not to issue a mandatory management order where a voluntary proposal is submitted and accepted by the EPA.171 The issue or acceptance of management orders may also trigger the issue of ongoing maintenance orders.172 Any relevant action taken by the EPA must be reported to the relevant local authority, which has duties to disclose relevant information in any request for a s 149 certificate.173 Service of a management order174 on a person who was not responsible for the contamination could, of course, be seen to work an injustice. Parliament has chosen to deal with this, not by exempting landowners from responsibility on grounds of unfairness or equity, but by enabling ‘innocent’ landowners to make an application to the publicly funded Environmental Trust for assistance with clean-up costs.175 A recent audit report 176 by the New South Wales Auditor-General identified long delays in the assessment of the extent of contamination of sites reported to the EPA; and found that the EPA lacked the management controls to ensure that all significantly contaminated sites were actively monitored and key milestones for remediation were [page 714] met. Government authorities in control of contaminated land also displayed varying degrees of responsibility for reporting and management. 16.37 In Queensland, the obligation to notify applies to hazardous contaminants177 and extends to notifiable activities178 being carried out on land.179 If satisfied that the land is contaminated or being used for a notifiable activity, the administering authority180 may then place the land on an environmental management register.181 As in New South Wales, the trigger for site investigation and remediation is the potential for serious or material environmental harm or public exposure.182 Interestingly, however, local government may be required to remedy ahead of the owner of land in circumstances specified in the Act; basically, if local government gave approval for a use that it should have been aware would cause contamination.183 A site management plan may then be used to manage the environmental harm that might be caused by the hazardous contaminant by applying conditions to the use or development of the land.184 16.38 In South Australia,185 notification of site contamination is required if it affects or threatens underground water.186 The trigger for issue187 of a site assessment188 or site remediation189 order is the satisfaction of the regulatory

authority that such an order is necessary; though the definition of ‘site contamination’ as ‘not trivial’ in relation to potential human or environmental impacts190 places the exercise of this discretion in context. As in other states, an approved voluntary site contamination assessment191 [page 715] or site remediation192 proposal may head off a mandatory order. Wideranging contamination may result in the declaration of a special management area,193 for which the regulatory authority may seek to conclude environment performance agreements194 to investigate the extent of contamination and devise a program for remediation. 16.39 In the Australian Capital Territory, the trigger for mandatory reporting of contamination is a significant risk of harm to human health or a risk of material or serious environmental harm.195 These criteria also guide the regulatory authority in determining the risk of harm196 prior to ordering site assessment or remediation.197 16.40 In Tasmania, the trigger for notification is a reasonable belief that an area of land is or is likely to be a contaminated site.198 Similar criteria will guide the director in making a decision whether to issue an investigation, remediation or site management notice.199 Notices may be served on persons who reasonably should have suspected the land was contaminated.200 16.41 In Western Australia, there is a duty to report a site that is known or suspected to be contaminated.201 Sites will be classified according to the degree of contamination and actual or proposed uses.202 Remediation will only be required if a site is classified as requiring remediation.203 Responsibility for remediation204 will devolve on the polluter or a person who has changed or proposes to change the use of the land, thus requiring remediation, before a landowner may become responsible.205 A landowner will not be responsible for remediation where the contaminant has migrated from another site; in this case, the owner of the site from which the contamination has migrated will be responsible for both sites.206 A person may also be exempted from remediation [page 716] by a determination of the Contaminated Sites Committee.207 Directors of insolvent corporations that would otherwise be responsible for remediation may become personally responsible for the remediation if so determined by the committee.208 Failing conferment of any other responsibility for remediation, the State

will generally become liable.209 A clean-up notice will set out the requirements to be complied with to remediate a site in the event that appropriate action is not otherwise being taken.210 16.42 The Act also provides for the issue of hazard abatement and investigation notices.211 A hazard abatement notice can be issued where a site is contaminated and there is an immediate and serious risk of harm to human health, the environment or any environmental value.212 An investigation notice may be issued where appropriate action to investigate, monitor or assess a site is not being, or has not been, taken.213 The issue of a notice obliges the person on whom it is binding to engage an auditor to report on the actions taken to comply with the requirements of the notice.214 Mandatory audit reports can also be requested in a wide variety of circumstances relating to investigation, monitoring and remediation.215 16.43 Clean-up of contaminated land may also be ordered under similar provisions as those that apply to clean-up of pollution incidents.216 The removal, transportation and treatment of contaminated soils and other waste is also generally governed by the pollution management legislation.217

Site audits 16.44 To fulfil statutory duties in respect of contaminated land, including voluntary management proposals, or to determine whether land is in fact significantly [page 717] contaminated, or to validate clean-up and remediation activities, an owner of land may have to employ the services of a professional — a site auditor. To be recognised as a competent site auditor for the purposes of the legislation, an auditor must display no conflicts of interest,218 and must be accredited.219 16.45 After completing a site audit, the auditor must prepare a report;220 or prepare a report that justifies the findings that will be made in a site audit statement.221 Site audit reports or statements must be sent to the EPA and relevant local authority.222 Such statements may provide a basis, of course, for determining a development application. In the event that development consent is later granted, regular auditing may be made a condition of development consent. In this case, it has been said that conditions in respect of auditing must be reasonably proportionate to the extent of the contamination,223 and costs of auditing balanced against reasonable use of the

land.224 Inadequate, incompetent or misleading professional advice about remediation can, of course, have significant financial and legal consequences; provisions for accreditation may help to lessen the risk, but not remove it entirely.225

Appeals 16.46 Appeals on the merits are available for a wide range of decisions in relation to contaminated land. In the Australian Capital Territory, appeals may be made to the Civil and Administrative Tribunal for a review of a decision of the EPA excluding, or refusing to exclude, a document or part of a document from public inspection (including remediation orders), refusing to remove an entry from the contaminated land register, making an order to conduct an assessment or to remediate, being required to conduct an environmental audit of contaminated land and other decisions related to contaminated land.226 [page 718] In the Northern Territory, a person may apply for a review of a decision to issue a pollution abatement notice227 or the decision to amend such a notice.228 Pollution abatement notices may be issued for a range of matters including requiring remediation of polluted land.229 16.47 In New South Wales, a person who is the subject of a management order may appeal to the Land and Environment Court (the court) against that order, generally within 21 days after the date of the service of the order on the person.230 The court may confirm or revoke an order, and, if revoking an order, may make any order that the Environment Protection Authority had the power to make.231 In Queensland, a range of decisions concerning contaminated land made under the Environmental Protection Act 1994 (Qld) may be appealed by a dissatisfied person232 to the Planning and Environment Court, including, for example, a decision that the land is contaminated or a decision concerning the particulars of the land to be included on the environmental management or contaminated land registers.233 In South Australia, a person to whom an environment protection order, information discovery order, clean-up order, site contamination assessment order or site remediation order has been issued may appeal to the Environment, Resources and Development Court against the order or any

variation of the order, generally within 14 days after the order is issued or the variation made.234 The court may vary or revoke an order,235 and make any consequential or ancillary order or direction, or impose any condition, that it considers necessary or expedient.236 In Tasmania, a person on whom a notice has been served may appeal to the Environmental Management and Planning Appeals Tribunal.237 Unless otherwise agreed with the director, the notice must be carried out pending a decision on the appeal,238 but in the event that the appeal is upheld compensation may be payable.239 [page 719] In Western Australia, a party aggrieved by a decision of the Contaminated Sites Committee (the committee) regarding responsibility for remediation240 or the recovery of costs for remediation,241 or the refusal of the committee to grant an exemption certificate,242 may appeal to the Supreme Court on a question of law within 21 days after the notice or certificate was given.243

1.

Although as Davis et al, ‘The Impact of Queensland’s Regulatory Waste Management Framework on the Uptake of Regional Synergies’ (2009) 26 EPLJ 49 rightly point out, minor regulatory barriers and financial disincentives may discourage the uptake of strategies designed to recover resources. On this point, see also City of Adelaide v Environment Protection Authority [2005] SASC 221 (whether licence to operate waste depot included authorisation to conduct recycling activities).

2.

Waste Avoidance and Resource Recovery Act 2001 (NSW) s 12 (state waste strategy); Waste Avoidance and Resource Recovery Strategy 2006 (NSW); Environment Protection (Waste to Resources) Policy 2010 (SA); Environment Protection Act 1970 (Vic) ss 49L–49S (solid industrial waste management plans), 50B–50BI (Metropolitan Waste and Resource Recovery Strategic Plan) and 50R–50RE (regional waste management plans); Waste Management Policy (Siting, Design and Management of Landfills) 2004 (Vic); Waste Management Policy (Solid Fuel Heating) 2004 (Vic); Waste Management Policy (Used Packaging Materials) 2010 (Vic).

3.

Waste Avoidance and Resource Recovery Act 2001 (NSW) s 3; Environment Protection Act 1970 (Vic) ss 1I and 16A–19; Waste Reduction and Recycling Act 2011 (Qld) s 9.

4.

Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) regs 7–9.

5.

Protection of the Environment Operations (Waste) Regulation 2005 (NSW) reg 46B. Compliance with the guidelines will entitle a council to apply for waste and sustainability improvement payments: reg 46C.

6.

Waste Management and Pollution Control Act 1998 (NT) s 117; Protection of the Environment Operations Act 1997 (NSW) ss 11(4)(e) and 323(2), Sch 2 cl 5A; Waste Avoidance and Resource Recovery Act 2001 (NSW); Protection of the Environment (Waste) Regulation 2005 (NSW) Pt 5A (waste and sustainability improvement scheme); Environmental Protection Act 1994 (Qld) s 27(2) (e); Waste Reduction and Recycling Act 2011 (Qld) s 15(2), Ch 6 (waste reduction and recycling strategies for state and local government entities), Ch 8 (approvals for beneficial uses of resources rather than disposal); Environment Protection Act 1993 (SA) s 10(1)(b)(i)(a); Zero Waste SA Act 2004 (SA); Environmental Management and Pollution Control Act 1994 (Tas) s 28(4)(c), Sch 1 cl 3; Environment Protection Act 1970 (Vic) Pt IX; Environmental Protection Act 1986 (WA) s 62A(1)

(q); Waste Avoidance and Resource Recovery Act 2007 (WA); Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA) reg 5(1)(b). 7.

For example, the conditions of an environment protection licence under the Protection of the Environment Operations Act 1997 (NSW) may require the licence holder to provide the appropriate regulatory authority with information relating to the creation, collection, storage, handling, transportation, treatment, processing, recovery, recycling, reuse or disposal of waste (s 75(1)), and may also require the holder to prepare an environmental waste management plan: s 75(2). The environmental waste management plan must set out the manner in which the holder proposes to carry out the activity or work authorised or controlled by the licence in order to achieve the required environmental outcomes, and may include a closure plan: s 75(2). A closure plan is a plan that addresses issues including the closing, stabilising or rehabilitating of the premises and the time frame for doing so, and provides for a post-closure monitoring and maintenance program, and identifies any proposed future uses of the premises: s 76. See also, for example, Environmental Management and Pollution Control Act 1994 (Tas) s 28(2); Environment Protection Act 1970 (Vic) Pt IX; Environmental Protection Act 1986 (WA) s 62A(1)(q).

8.

Waste Reduction and Recycling Act 2011 (Qld) s 3.

9.

Waste Reduction and Recycling Act 2011 (Qld) ss 4 and 9. The hierarchy is: (a) avoid unnecessary resource consumption; (b) reduce waste generation and disposal; (c) reuse waste resources without further manufacturing; (d) recycle waste resources to make the same or different products; (e) recover waste resources, including the recovery of energy; (f)

treat waste before disposal, including reducing the hazardous nature of waste; and

(g) dispose of waste only if there is no viable alternative. 10. Waste Reduction and Recycling Act 2011 (Qld) s 4(2). The principles are: (1) the polluter pays principle (defined in s 10 that all costs associated with the management of waste should be borne by the persons who generated the waste); (2) the user pays principle (defined in s 11 that all costs associated with the use of a resource should be included in the prices of the goods and services (including government services) that result from the use); (3) the proximity principle (defined in s 12 that waste and recovered resources should be managed as close to the source of generation as possible); and (4) the product stewardship principle (defined in s 13 that there is a shared responsibility between all persons who are involved in the life cycle of a product for managing the environmental, social and economic impact of the product). 11. Waste Reduction and Recycling Act 2011 (Qld) Ch 2. 12. Waste Reduction and Recycling Act 2011 (Qld) Ch 6. Reporting by local government, planning entities and state entities on waste reduction and recycling plans, and waste recovery and disposal, is provided for in Ch 7. 13. Waste Reduction and Recycling Act 2011 (Qld) ss 61 and 62. 14. Waste Reduction and Recycling Act 2011 (Qld) s 63. Offences relating to contraventions of resource recovery areas requirements are set out in s 67. 15. Waste Reduction and Recycling Act 2011 (Qld) s 156, Ch 8. 16. Environmental Protection Act 1994 (Qld) s 13.

17. For example, Protection of the Environment Operations (Waste) Regulation 2014 (NSW) reg 92, Environmental Protection Regulations 1987 (WA) reg 23(1)(b); Environment Protection Act 1997 (ACT) s 2(1)(b). 18. The Victorian Waste and Resource Recovery Infrastructure Planning Framework is set out in the Environment Protection Act 1970 (Vic) ss 50–50CA. See also Statewide Waste and Resource Recovery Infrastructure Plan (Vic), available at . See also ‘Getting Full Value: The Victorian Waste and Resource Recovery Policy (2013), available at . This Policy was developed in response to a Victorian Auditor General’s Office audit report in December 2011 (‘Municipal Solid Waste Management’, available at ), which found that ineffective planning and leadership has resulted in lack of coordination and limited progress in reducing municipal waste. 19. Environment Protection Act 1970 (Vic) s 31C(1). 20. Environment Protection Act 1970 (Vic) s 31C. 21. Environment Protection Act 1970 (Vic) ss 49AA and 49AC. 22. Environment Protection Act 1970 (Vic) s 49AD. The statutory procedure leading to such a declaration is provided for in s 49AE. 23. Environment Protection Act 1970 (Vic) s 49AF. See also s 49AK (how ecological impact statements are to be prepared, including complying with guidelines) and s 49AN (guidelines for ecological impact statements). 24. Environment Protection Act 1970 (Vic) s 49AG. 25. Environment Protection Act 1970 (Vic) s 49AH. 26. Environment Protection Act 1970 (Vic) s 49A. 27. Environment Protection Act 1970 (Vic) s 49AP. 28. Environment Protection Act 1970 (Vic) s 49AO. 29. Environment Protection Act 1970 (Vic) s 50BH. 30. Environment Protection Act 1970 (Vic) s 16A. See also s 18E (saving of former industrial waste management policies). 31. Environment Protection Act 1970 (Vic) ss 50SA–50SAB. 32. Waste Avoidance and Resource Recovery Act 2001 (NSW) s 15. This scheme has to date operated on a non-regulatory basis. Provision is also made in Western Australia for voluntary product stewardship schemes; and the possible enforced application of extended producer responsibility: see Waste Avoidance and Resource Recovery Act 2007 (WA) ss 45–47. 33. This may include suppliers: Waste Avoidance and Resource Recovery Act 2001 (NSW) s 15(3). 34. Environment Protection Act 1970 (Vic) s 1G. 35. Waste Avoidance and Resource Recovery Act 2001 (NSW) s 15; Environment Protection Act 1970 (Vic) s 1H. 36. The elimination of ozone producing substances is a rare example of a complete prohibition on the manufacture, sale and use of a product: see Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth). 37. Protection of the Environment Operations Act 1997 (NSW) s 88. See also Environment Protection Authority v Leaway Pty Ltd [2006] NSWLEC 44. See also Environment Protection Act 1970 (Vic) s 24A (environment protection levy), ss 50S–50XC, Sch 2 (landfill levy), Environment Protection (Distribution of Landfill Levy) Regulations 2002; and on landfill levies and charges in Victoria, see

; Environment Protection Act 1993 (SA) s 113 (waste depot levy); Environment Protection Regulations 2009 (SA) Pt 6; Environmental Protection Act 1986 (WA) Pt VIIA (landfill levy). 38. See DECCW, Resource Recovery Exemptions (Land Application) Guidelines. 39. See DECCW, Guidance Note: Assessment of Non-Standard Fuels. 40. Waste Avoidance and Resource Recovery Act 2001 (NSW) ss 15–18. The latest Priority Statement appears to have be 2010: see . 41. Waste Avoidance and Resource Recovery Act 2001 (NSW) s 17. 42. See Waste Avoidance and Resource Recovery Act 2007 (WA) ss 45–47. 43. Available at . 44. Environment Protection Act 1993 (SA) Pt 8 Div 2. 45. EC Directive on End of Life Vehicles 2000/53. 46. EC Directive on Waste Electrical and Electronic Equipment 2002/96. 47. EC Directive on Packaging Waste 94/62. 48. Environment Protection Act 1993 (SA) s 68(4). 49. Environment Protection Act 1993 (SA) s 69C. Although this section allows a container to be presented for refund in South Australia if sold within a jurisdiction with corresponding laws, there are in fact no such jurisdictions at present. 50. Environment Protection (Beverage Containers and Plastic Bags) Act 2011 (NT); Environment Protection (Beverage Containers and Plastic Bags) Regulations 2011 (NT). Details of the administrative arrangements may be accessed at . The Trans-Tasman Mutual Recognition (Temporary Exemption for Beverage Containers) Regulations 2011 (NT) purports to exempt the Environment Protection (Beverage Containers and Plastic Bags) Act 2011 (NT) from the operation of the Mutual Recognition Act 1992 (Cth). 51. See . 52. The Australian Packaging Covenant replaces the Covenant that has been in place since 2005 (and before that 1999), but has retrospective effect to 2005: cl 2. In the Australian Capital Territory, the National Environment Protection Measure (NEPM) is implemented by an Industry Waste Reduction Plan under the Waste Minimisation Act 2001 (ACT). In the Northern Territory, the NEPM is implemented by the Litter Abatement and Resource Recovery Strategy 2003 (NT). In New South Wales, the NEPM is implemented by the Protection of the Environment Operations (Waste) Regulation 2014 (NSW) Pt 8. In Queensland, the NEPM may be implemented by regulations made under the Waste Reduction and Recycling Act 2011 (Qld) (s 271) and the Waste Reduction and Recycling Strategy. In South Australia, the NEPM was implemented by the Environment Protection (Used Packaging Materials) Policy 2007 (SA), under the Environment Protection Act 1993 (SA). This Policy expired in 2010; though NEPMs in any case automatically become Environment Protection Policies under that Act: s 29. In Tasmania, the NEPM is implemented as a State Policy under the State Policies and Projects Act 1993 (Tas). In Victoria, the NEPM is implemented by the Waste Management Policy (Used Packaging Materials) 2010 (Vic), under the Environment Protection Act 1970 (Vic). In Western Australia, the NEPM is implemented by the Environmental Protection (NEPM-UPM) Regulations 2013 (WA) under the Environmental Protection Act 1986 (WA). 53. Defined in National Environment Protection (Used Packaging Materials) Measure 2011 (the Covenant) cl 3. Retailers who supply plastic bags to customers are taken to be brand owners for the purpose of this Covenant.

54. National Environment Protection (Used Packaging Materials) Measure 2011 cl 7. 55. National Environment Protection (Used Packaging Materials) Measure 2011 cl 9. 56. For example, Protection of the Environment Operations (Waste) Regulation 2005 (NSW) cll 46J and 46K. A waste action plan will detail how compliance with targets, from baseline data, will be met: cl 46L. 57. National Environment Protection (Used Packaging Materials) Measure 2011 Pt 4. 58. Product Stewardship Act 2011 (Cth) s 19(3A). 59. See . And on the Product Stewardship Act 2011 (Cth), see further 16.13. 60. Plastic Shopping Bags Ban Act 2010 (ACT); Environment Protection (Beverage Containers and Plastic Bags) Act 2011 (NT); Plastic Shopping Bags Ban Act 2013 (Tas). This legislation also prohibits certain types of plastic bags; Environment Protection (Beverage Containers and Plastic Bags) Regulations 2011 (NT). The Trans-Tasman Mutual Recognition (Temporary Exemption for Prohibited Plastic Bags) Regulations 2011(NT) purports to exempt the Environment Protection (Beverage Containers and Plastic Bags) Act 2011 (NT) from the operation of the Mutual Recognition Act 1992 (Cth). 61. For the definition of ‘plastic shopping bag’, see Plastic Shopping Bags Ban Acts 2010 (ACT) s 6; 2013 (Tas) s 3. For the definition of ‘prohibited plastic bag’, see Environment Protection (Beverage Containers and Plastic Bags) Act 2011 (NT) ss 51 and 52. 62. Plastic Shopping Bags Ban Acts 2010 (ACT) s 7; 2013 (Tas) s 4; Environment Protection (Beverage Containers and Plastic Bags) Act 2011 (NT) s 57. 63. Product Stewardship Act 2011 (Cth) s 3. 64. See Lipman and Ind, ‘The e-waste Dilemma: Are International Measures and Product Stewardship Schemes a Solution?’ (2014) 31 EPLJ 223. 65. Product Stewardship Act 2011 (Cth) Pts 2–4. 66. Product Stewardship Act 2011 (Cth) s 37(1). 67. Product Stewardship Act 2011 (Cth) s 37(2). 68. Product Stewardship Act 2011 (Cth) Pt 3. 69. Product Stewardship Act 2011 (Cth) s 19(1). 70. Product Stewardship Act 2011 (Cth) s 19(2). 71. Product Stewardship Act 2011 (Cth) s 21(3). 72. Product Stewardship (Televisions and Computers) Amendment Regulations 2011 (No 1) (Cth) reg 1.4. ‘Manufacture’ includes assembling the product: reg 1.3. 73. Product Stewardship (Televisions and Computers) Amendment Regulations 2011 (No 1) (Cth) regs 2.01–2.03. 74. Product Stewardship (Televisions and Computers) Amendment Regulations 2011 (No 1) (Cth) reg 3.01. Different types of collection services are identified in reg 3.02. The meaning of ‘reasonable access’ is also defined in reg 3.03. The methodology for working out recycling targets is set out in cl 3.04 and how these targets might be met in reg 3.05. 75. Product Stewardship (Televisions and Computers) Amendment Regulations 2011 (No 1) (Cth) reg 3.06. ‘Material recovery target’ is defined in reg 1.03 to mean the proportion of products in a class of products to be sent after recycling for processing into useable materials in a particular financial year, as worked out under reg 3.06. 76. Product Stewardship (Televisions and Computers) Amendment Regulations 2011 (No 1) (Cth) Pt

5. 77. Product Stewardship Act 2011 (Cth) ss 4, 21, 22 and 27. The product stewardship criteria are satisfied in relation to a class of products if: (a) the products in the class are in a national market; and (b) at least one of the following applies in relation to the products in the class: (i)

the products contain hazardous substances,

(ii) there is the potential to significantly increase the conservation of materials used in the products, or the recovery of resources (including materials and energy) from waste from the products, and (iii) there is the potential to significantly reduce the impact that the products have on the environment, or that substances in the products have on the environment, or on the health or safety of human beings. 78. Product Stewardship Act 2011 (Cth) s 13. 79. See . 80. Waste Avoidance and Resource Recovery Act 2001 (NSW) s 4; Protection of the Environment Operations Act 1997 (NSW) Dictionary ‘waste’; Environment Protection Act 1993 (SA) s 3. 81. Waste Avoidance and Resource Recovery Act 2001 (NSW) s 4; Protection of the Environment Operations Act 1997 (NSW) Dictionary ‘waste’; Protection of the Environment Operations (Waste) Regulation 2014 cl 6. 82. For example, Protection of the Environment Operations (Waste) Regulation 2014 cl 92 (application of waste to land); Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) Pt 5 (exempt secondary beneficial reuse); Environmental Protection Regulation 2008 (Qld) cl 65 Sch 7 Pt 2. 83. For example, Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) Pt 2, Sch 1. 84. For example, Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) Sch 2; On the meaning of ‘hazardous’, see Greater Dandenong City Council v SITA Australia Pty Ltd [2006] VCAT 1361. 85. For example, Protection of the Environment Operations (Waste) Regulation 2014 cll 6 and 113. 86. On odour problems from green waste management and composting, see Yarra Ranges Shire Council v Australian Native Landscapes [2008] VCAT 2342. 87. For example, Waste Classification Guidelines (NSW), p 5 (‘special waste’). 88. For example, Protection of the Environment Operations Act 1997 (NSW) Sch 1 Pt 3. See also Waste Classification Guidelines (NSW) . 89. For example, in New South Wales, ‘scheduled activities’ are distinguished from ‘non-scheduled activities’ (Protection of the Environment Operations Act 1997 (NSW) Dictionary (definitions)) and Sch 1 lists scheduled activities (which include a wide range of waste activities including transport, processing, storage and disposal. Waste classifications are set out in Sch 1 Pt 3. The Protection of the Environment (Waste) Regulation 2005 (NSW) also adds to the definition of ‘waste’: see cll 3A and 3B. There is also a separate legislative regime for the control of chemical waste as defined under the Environmentally Hazardous Chemicals Act 1985 (NSW). In Queensland, ‘general waste’ is distinguished from ‘regulated waste’ (Environmental Protection Regulation 2008 (Qld) Sch 7 and ‘regulated waste’ is a ‘notifiable activity’: Environmental Protection Act 1994 (Qld) Sch 3 (definition ‘notifiable activity’ and Sch 2 item 37 (definition of ‘regulated waste’)). In South Australia, wastes that come within the definition of ‘prescribed

activities of environmental significance’, including ‘listed wastes’ (see Environment Protection Act 1993 (SA) s 3(1), Sch 1 Pt B), are distinguished from other wastes that do not come within this description: Sch 1 Pt A (specifically covers waste and waste disposal but excludes wastes from domestic and other activities unless the wastes produced in those activities are listed wastes: Sch 1 Pt A item 4). In Victoria, general prescribed wastes are distinguished from industrial wastes: Environment Protection Act 1970 (Vic) s 20; Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic). In Western Australia, discharged waste that is likely to cause harm to the environment (Environmental Protection Act 1986 (WA) s 50), clinical waste and controlled waste (Environmental Protection (Controlled Waste) Regulations 2004 (WA) reg 2 (definitions of ‘clinical waste’ and ‘controlled waste’)) are subject to regulatory control. 90. For example, Protection of the Environment Operations (Waste) Regulation 2005 Pt 4 (special wastes), Pt 5 (application of waste to land); Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) regs 10 and 11 (management by classification of hazard), Pt 5 (exempt secondary beneficial reuse); Environmental Protection (Waste Management) Regulation 2000 (Qld) Pt 6A (beneficial use). 91. Current definitions of ‘waste’ cure this ‘loophole’; see Protection of the Environment Operations Act 1997 (NSW) Dictionary ‘waste’. 92. For example, Wollongong City Council v Australian Iron and Steel Pty Ltd [1988] NSWLEC 67 (blast furnace slag). 93. Evangelista v Development Assessment Commission [2004] SAERDC 30. In Young v Corporation of City of Whyalla [2009] SASC 314, a vessel was held to be ‘rubbish’ for the purposes of the Local Government Act 1999 (SA) s 235. The offence of ‘depositing rubbish’ had been made out by the action of the appellant in mooring the vessel in such a position that it would inevitably come to rest on rocks in a public place upon the receding of the tide. 94. Environment Protection Authority v Terrace Earthmoving Pty Ltd and Page [2012] NSWLEC 216. 95. Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) reg 5(1). 96. Protection of the Environment Operations Act 1997 (NSW) Dictionary ‘waste facility’. And on ‘storage and treatment’, see Able Demolitions & Excavations Pty Ltd v Yarra Ranges Shire Council [2008] VSC 294. 97. Trying to avoid a threshold by attempting to divide an operation into different constituent parts, none of which would trigger the threshold, is not likely to succeed if the separate applications can be viewed as one conjoined operation: see Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd [2001] SASC 173. 98. Protection of the Environment Operations Act 1997 (NSW) Sch 1. Operators of commercial landfill sites that are not required to be licensed, because they do not trigger licensing requirements, may nevertheless be required to state their presence to the regulatory authority and identify their location; and may be required to supply information in respect of the site; for example, Protection of the Environment (Waste) Regulation 2005 (NSW) reg 47; Environmental Management and Pollution Control (Waste Management) Regulations 2000 (Tas) regs 10 and 12. 99. See, for example, SEPP 48 — Major Putrescible Landfill Sites (NSW); SEPP 33 — Hazardous and Offensive Development, (NSW). On the relationship between the environment protection and planning regimes in Victoria, see SITA Australia Pty Ltd v Greater Dandenong City Council [2007] VCAT 156. 100. Protection of the Environment Operations Act 1997 (NSW) s 144; Environment Protection Authority v Hardt (2006) 148 LGERA 61; [2006] NSWLEC 438. A place cannot be lawfully used for a particular purpose if it does not have lawful authority required for that use. A site cannot therefore be ‘lawfully’ used as a waste facility if it does not have requisite development consent: Hills Shire Council v Suciu [2009] NSWLEC 145.

101. See also Environment Protection Authority v Perry [2004] NSWLEC 715; Environment Protection Authority v Pal [2009] NSWLEC 35 (defendant ordered to undertake 450 hours community service and fined $45,000 plus costs); Environment Protection Authority v Foxman Environmental Development Services [2015] NSWLEC 105. 102. Protection of the Environment (Waste) Regulation 2005 (NSW) regs 48 and 49; Environment Protection Act 1970 (Vic) ss 53–53G; Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) Pts 3 and 4; Environmental Protection Regulation 2008 (Qld) Pt 9. 103. Protection of the Environment (Waste) Regulation 2005 (NSW) Pt 3; Environment Protection Act 1970 (Vic) s 53C; Environmental Protection Regulation 2008 (Qld) Schs 2E and 2F. Falsifying records is an offence; see, for example, Environment Protection Authority v Ashmore [2014] NSWLEC 136. 104. For example, Protection of the Environment Operations Act 1997 (NSW) s 143; Environment Protection Act 1970 (Vic) ss 53B and 53D; and see, for example, Environment Protection Authority v Richardson; Environment Protection Authority v Behnfeld [2002] NSWLEC 205; Environment Protection Authority v Pannowitz [2005] NSWLEC 175; Environment Protection Authority v Foxman Environmental Development Services [2015] NSWLEC 105. The relevant consideration for the offence of unlawfully transporting waste is whether, at the time the liquid (in this case) was loaded into the transport facility, it was an unwanted or surplus substance. Its categorisation at the time it was later deposited is immaterial: Environment Protection Authority v Shannongrove Pty Ltd [2010] NSWLEC 162. 105. Protection of the Environment Operations Act 1997 (NSW) Pt 5.6A; Environment Protection Act 1970 (Vic) ss 45A–45ZL; Environmental Protection Act 1994 (Qld) ss 440A–440J. An offence of ‘littering’ may be made out where a person deposits rubbish in an area of a waste disposal facility that is not intended for that class of rubbish; see City of Armadale v Merrick [2014] WASCA 125. 106. Environment Protection (Ships’ Ballast Water) Regulations 2006 (Vic). 107. For example, Protection of the Environment Operations Act 1997 (NSW) ss 75 and 76; Environment Protection Act 1970 (Vic) s 53F; Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) reg 15; Environmental Management and Pollution Control (Waste Management) Regulations 2000 (Tas) regs 12 and 12A. 108. For example, Environment Protection Authority v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739; Environmental Management and Pollution Control (Waste Management) Regulations 2000 (Tas) reg 12B. 109. On 30 March 1992, the Council of the Organisation for Economic Co-operation and Development (OECD) concluded an arrangement or agreement under the Basel Convention art 11 in the form of a decision requiring that member countries ‘control transfrontier movements of wastes destined for recovery operations within the OECD area’. Australia and New Zealand are both members of the OECD. 110. See also Technical Guidelines for environmentally sound management . 111. Note that the minister must not grant a Basel export permit if the applicant proposes that the hazardous waste will be disposed of by a method that is within the scope of Section A of Annex IV to the Basel Convention, unless there are ‘exceptional circumstances’ (s 18A(4)); Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) s 18A(1). Even then, the minister may not issue a permit if he or she is satisfied that carrying out the export proposals would be inconsistent with the environmentally sound management of the hazardous waste: s 18A(3). Methods set out in Annex IV Section A of the Basel Convention include: deposit into or onto land (for example, landfill etc), land treatment, deep injection, surface impoundment, specially engineered landfill, release into a body of water other than a sea or ocean, release into seas or oceans including seabed insertion, incineration on land, incineration at sea, and permanent storage. These methods also

encompass biological treatment, physico-chemical treatment, blending or mixing of materials prior to disposal by any of the methods in Annex IV Section A, as well as storage pending such disposal. 112. Defined in Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) s 4, as extended by ss 4A and 4F for particular circumstances relating to classifications by foreign countries. Exclusions from the definition are set out in s 4G. 113. Taking all practicable steps to ensure that the waste is managed in a manner that will protect human health, and the environment, against the adverse effects that may result from the waste: s 4E. Note also the limitation in s 18A concerning disposal by specified methods, which the minister may only approve in ‘exceptional circumstances’. 114. Hazardous Waste (Regulation of Exports and Imports) (Waigani Convention) Regulations 1999 (Cth) s 4C. 115. Hazardous Waste (Regulation of Exports and Imports) (Waigani Convention) Regulations 1999 (Cth) ss 17(6) and 17A(5). 116. Hazardous Waste (Regulation of Exports and Imports) (Waigani Convention) Regulations 1999 (Cth) s 17(6), (7). 117. Unlawful import of waste constitutes a contravention of Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) s 39(1). 118. Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) s 34. 119. This relates specifically to contraventions of Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) ss 39, 40 and 40A: Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) s 36(1)(a). 120. Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) s 36(1)(b). 121. Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) s 36(2). 122. Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) s 37(1)(a). This relates specifically to orders under ss 34, 35, 35A and 36. 123. Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) s 37(1)(b). 124. Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) s 37(2). 125. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 145A; Contaminated Land Management Act 1997 (NSW) s 5; Environment Protection Act 1993 (SA) s 5B (potential human or environmental harm not trivial); Environment Protection Act 1997 (ACT) s 4; Environmental Management and Pollution Control Act 1994 (Tas) s 74A(2), (3); Contaminated Sites Act 2003 (WA) s 4; Contaminated Sites Regulations 2006 (WA) reg 5 (sites, land and water that are not contaminated). The State Environment Protection Policy (Prevention and Management of Contamination of Land) 2002 (Vic) cl 32 defines ‘potentially contaminated land’ as land used or known to have been used for industry, mining, or the storage of chemicals, gas, wastes or liquid fuels (if not ancillary to another use of land) as defined in Minister’s Direction No 1 as amended from time to time under the Planning and Environment Act 1987 (Vic) s 12(2)(a). 126. An attempt by an owner of land to have the lessee clean up the site of an old tick dip under the guise of an order restraining pollution failed in Kempark Pty Ltd v New South Wales [1998] NSWLEC 205. 127. Alec Finlayson Pty Ltd v Armidale City Council (1994) 51 FCR 378; 84 LGERA 225; 123 ALR 155 (affirmed Armidale City Council v Alec Finlayson Pty Ltd (1999) 104 LGERA 9 (contamination from treatment of timber); Caltex Australia Petroleum Pty Ltd v Charben Haulage Pty Ltd [2005] FCAFC 271 (contamination from service station); Premier Building and Consulting Pty Ltd v Spotless Group Ltd [2007] VSC 377. In New South Wales and Tasmania, specific regulatory requirements now apply to the commissioning and de-commissioning of underground petroleum storage systems: Protection of the Environment Operations (Underground Petroleum Storage

Systems) Regulation 2008 (NSW); Environmental Management and Pollution Control (Underground Petroleum Storage Systems) Regulations 2010 (Tas). 128. See, for example, Noor Al Houda Islamic College Pty Ltd v Bankstown Airport Ltd [2005] NSWSC 20 (lease of contaminated site for school; action in negligence); Challenger Listed Investments Ltd v Valuer General (No 2) [2015] NSWLEC 60 (level of contamination at a site must be considered by the Valuer-General when calculating the site value for the purpose of imposing rates). 129. See, for example, Caltex Australia Petroleum Pty Ltd v Charben Haulage Pty Ltd [2005] FCAFC 271 (negligence about extent of contamination and remediation of old service station site); Premier Building and Consulting Pty Ltd v Spotless Group Ltd [2007] VSC 377 (pollution of groundwater and effects on neighbouring land; actions in nuisance and negligence, and costs of remediation). 130. For a comprehensive survey, which displayed weaknesses in the approaches to identification and communication of timely and relevant information, see Deegan and Ji, ‘Finding Information about Contaminated Sites: There Has to Be a Better Way!’ (2008) 25 EPLJ 284. See also, for example, Environment Protection Act 1997 (ACT) ss 21A and 21B; Contaminated Sites Act 2003 (WA) ss 19–21; Contaminated Sites Regulations 2006 (WA) regs 7–12. 131. See Brandon, ‘A Model Law for Site Contamination: Key Features and Challenges in a Developing Country Context’ (2015) 32 EPLJ 409. 132. For example, Tetra Pak Manufacturing v Challenger Life Nominees [2013] NSWSC 349. 133. See also State Environment Protection Policy (Prevention and Management of Contamination of Land) 2002 (Vic); Potentially Contaminated Land: General Practice Note (DSE Vic). 134. See Department of Planning, Managing Land Contamination: Planning Guidelines — SEPP 55 Remediation of Land, Table 1. 135. SEPP 55 ss 6 and 7. In Terry Street Pty Ltd v Leichhardt Municipal Council [2007] NSWLEC 131, for example, the court held that a prudent and precautionary approach to redevelopment was appropriate; and that there should be regular audits for fitness of use. 136. SEPP 55 s 10. Category 1 remediation work is defined as remediation work that is, for example, required to carry out designated development, likely to have a significant effect on a critical habitat or a threatened species, population or ecological community, or to be carried out in an area or zone designated for coastal protection or conservation or heritage conservation: s 9. 137. SEPP 55 s 8. Category 2 works are any not defined as category 1 (s 14); though may, if the applicant chooses, be made ancillary to designated development: s 15. Certain category 1 works are treated as category 2 works; for example, in relation to tick dips or remediation allowable under another SEPP: s 14(b) (though for relationship of this SEPP to other EPIs, see s 19). Although category 2 works do not need consent, the relevant local council or Western Lands Commissioner must be informed of any proposal to carry out such works: s 16. 138. SEPP 55 s 12. 139. SEPP 55 s 17. 140. SEPP 55 ss 17 and 18. 141. Though this protection will not, of course, extend to decisions of councils made prior to these provisions coming into effect: see, for example, Forbes Shire Council v AG Australia Holdings Ltd [2007] NSWSC 847. 142. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 145A and 145B. 143. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 145B(3) and 145C. 144. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 145B(2). In Sweetwater Action Group Inc v Minister for Planning [2011] NSWLEC 106, the court set aside a decision of the minister to approve a rezoning plan and promulgate an amending SEPP to enable a town centre

development because the minister had failed to comply with the requirements of SEPP 55. The minister had not been provided with the findings of any preliminary investigation on site contamination. 145. The Contaminated Land Management Act 1997 (NSW) s 53B requires site auditors to furnish local authorities with copies of site audit statements relating to site audits for the purposes of statutory requirements; and see further 16.44. 146. Regulation can also attempt to forestall future contamination problems by targeting specific activities and imposing design and management standards: see, for example, Protection of the Environment (Underground Petroleum Storage Systems) Regulation 2014 (NSW). 147. State Environment Protection Policy (Prevention and Management of Contamination of Land) 2002 (Vic). See also Livingstone, ‘Culpability Versus Liability: Is the Polluter Ultimately Liable for Cleaning up Groundwater Contamination in Victoria?’ (2013) 30 EPLJ 74. 148. State Environment Protection Policy (Prevention and Management of Contamination of Land) 2002 (Vic) cl 32 (definition of potentially contaminated land). 149. State Environment Protection Policy (Prevention and Management of Contamination of Land) 2002 (Vic) cl 14. The audit is made under Environment Protection Act 1970 (Vic) s 57A. As to environmental audits, see 15.80 and following. 150. State Environment Protection Policy (Prevention and Management of Contamination of Land) 2002 (Vic) cl 14(2), (3). 151. Environmental Protection Act 1994 (Qld) Sch 4 (definition of ‘administering authority’). 152. Environmental Protection Act 1994 (Qld) s 413(2). 153. Environmental Protection Act 1994 (Qld) s 417. 154. For concurrence agency, see Sustainable Planning Act 2009 (Qld) Sch 3. 155. Sustainable Planning Act 2009 (Qld) Sch 3. 156. Contaminated Sites Act 2003 (WA) s 58(6). See also s 59 for entities that must be informed regarding the registration of contaminated sites as soon as those sites are registered. 157. These approvals are made under Planning and Development Act 2005 (WA) s 135. 158. ‘Responsible authority’ is defined in Environmental Protection Act 1986 (WA) s 3(1); Contaminated Sites Act 2003 (WA) s 3(2). 159. Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014 (NSW); Environmental Management and Pollution Control (Underground Petroleum Storage Systems) Regulations 2010 (Tas). 160. Contaminated Land Management Act 1997 (NSW) ss 11 and 12. 161. Contaminated Land Management Act 1997 (NSW) s 60(5), (9). 162. Contaminated Land Management Act 1997 (NSW) s 60. 163. Contaminated Land Management Act 1997 (NSW) s 60(3). 164. Contaminated Land Management Act 1997 (NSW) s 10. 165. Contaminated Land Management Act 1997 (NSW) s 11. 166. Contaminated Land Management Act 1997 (NSW) s 6. 167. Contaminated Land Management Act 1997 (NSW) ss 14–16. 168. Contaminated Land Management Act 1997 (NSW) s 13. 169. Generally, a notional owner is a mortgagee in possession of the land or who has a vested interest with respect to the land: Contaminated Land Management Act 1997 (NSW) s 7.

170. Contaminated Land Management Act 1997 (NSW) s 61. 171. Contaminated Land Management Act 1997 (NSW) s 17. 172. Contaminated Land Management Act 1997 (NSW) s 28. 173. Contaminated Land Management Act 1997 (NSW) s 59. See also Contaminated Sites Act 2003 (WA) ss 62 and 63 (request for certificate of contamination audit) and 68 (disclosure to potential owners before change of ownership). 174. Interpretation of a contract for remediation may be referable to a management plan: see Thiess Services Pty Ltd v Mirvac Queensland Pty Ltd [2005] QSC 364; [2006] QCA 50. 175. Environmental Trust Act 1998 (NSW) ss 15 and 16. Although the maximum amount that the trust can expend for pollution clean-up costs in any one financial year is $0.5 million (s 16(3)), it seems that other grants for clean-up of contaminated sites may be made under s 15. In 2008 and 2009, $2.5 million was expended on contaminated sites; see also . For a case where an owner sought to have a local authority compulsorily acquire land that could conceivably become subject to intervention under the CLMA, see Edwards v Sutherland Shire Council [2006] NSWLEC 128. 176. ‘Managing Contaminated Sites’ (2014). Available at . 177. Hazardous contaminant means a contaminant, other than an item of explosive ordnance, that, if improperly treated, stored, disposed of or otherwise managed, is likely to cause serious or material environmental harm because of (a) its quantity, concentration, acute or chronic toxic effects, carcinogenicity, teratogenicity, mutagenicity, corrosiveness, explosiveness, radioactivity or flammability; or (b) its physical, chemical or infectious characteristics: Environmental Protection Act 1994 (Qld) Dictionary. 178. Notifiable activities are listed in Environmental Protection Act 1994 (Qld) Sch 3. 179. Environmental Protection Act 1994 (Qld) ss 371 and 372. 180. Local government or the chief executive; Dictionary. 181. Environmental Protection Act 1994 (Qld) ss 371 and 374. 182. Environmental Protection Act 1994 (Qld) ss 376–389 (investigation) and 390–400 (remediation). 183. Environmental Protection Act 1994 (Qld) s 391. 184. Environmental Protection Act 1994 (Qld) ss 401–419. It is an offence to contravene a site management plan: s 434. 185. See Leadbeter, ‘Site Contamination Requirements under the Environment Protection Act 1993 (SA) — An Analysis of their Nature and Effect’ (2013) 30 EPLJ 106. 186. Environment Protection Act 1993 (SA) s 83A. 187. In the case of a suspicion that the land might be contaminated, the appropriate person is the owner of the site: Environment Protection Act 1993 (SA) s 103C(2). If the authority is satisfied that the site is contaminated, then the appropriate person is the person who caused the contamination; and only if it is not practicable to issue an order to that person, the owner of the site in specified circumstances: s 103C(1). ‘Practicable’ is defined in s 103C(3). ‘Causing’ site contamination is defined in s 103D and Environment Protection Regulation 2009 (SA) reg 51. 188. Environment Protection Act 1993 (SA) s 103H. 189. Environment Protection Act 1993 (SA) s 103J. And see Weeroona Holdings Pty Ltd v Environment Protection Authority [2013] SAERDC 41 (‘appropriate person to receive order’). 190. Environment Protection Act 1993 (SA) s 5B. The Environment Protection Regulations 2009 (SA) reg 50 and Sch 3 also specify potentially contaminating activities.

191. Environment Protection Act 1993 (SA) s 103I. 192. Environment Protection Act 1993 (SA) s 103K. 193. Environment Protection Act 1993 (SA) s 103N. 194. Environment Protection Act 1993 (SA) ss 59 and 60. 195. Environment Protection Act 1997 (ACT) s 23A. 196. Environment Protection Act 1997 (ACT) s 91B. 197. Environment Protection Act 1997 (ACT) ss 91C and 91D. The choice of appropriate person to be served with an order is similar to New South Wales: s 91I. 198. Environmental Management and Pollution Control Act 1994 (Tas) s 74B. 199. Environmental Management and Pollution Control Act 1994 (Tas) ss 74C–74G and 74P. A site management notice is to require safe management of the contaminated site and the pollutant that is polluting it: s 74G. Appeals lie to the tribunal: s 74O. 200. Environmental Management and Pollution Control Act 1994 (Tas) ss 74E–74G. 201. Contaminated Sites Act 2003 (WA) s 11. 202. Contaminated Sites Act 2003 (WA) ss 13–18, Sch 1. 203. Contaminated Sites Act 2003 (WA) s 23. 204. The Contaminated Sites Committee (ss 33 and 34) makes decisions about who is responsible for remediation: Contaminated Sites Act 2003 (WA) ss 36–39. The committee has to take into account prescribed facts and circumstances before making such a decision: Contaminated Sites Regulations 2006 (WA) regs 26 and 28. An appeal lies to the tribunal from such a determination: s 40. An exemption certificate may be obtained in circumstances specified in ss 64 and 65 to the effect that a person is not responsible for remediation. 205. Contaminated Sites Act 2003 (WA) ss 24–27. Mortgagees in possession can request that responsibility for remediation be transferred to the state: s 31. 206. Contaminated Sites Act 2003 (WA) s 27(2a), (2b). 207. Contaminated Sites Act 2003 (WA) s 27(3). 208. Contaminated Sites Act 2003 (WA) s 28. 209. Contaminated Sites Act 2003 (WA) ss 29 and 32. 210. Contaminated Sites Act 2003 (WA) s 50. 211. Contaminated Sites Act 2003 (WA) ss 41–52. 212. Contaminated Sites Act 2003 (WA) s 51. ‘Environmental value’ bears the same meaning as in the Environmental Protection Act 1986 (WA) s 3 ‘a beneficial use or an ecosystem health condition’: Contaminated Sites Act 2003 (WA) s 3(2). 213. Contaminated Sites Act 2003 (WA) s 49. 214. Contaminated Sites Act 2003 (WA) s 44. 215. Contaminated Sites Regulations 2006 (WA) reg 31. A report must meet the requirements set out in s 73 of the Act and reg 32 of the Regulations, including reasons for conclusions and, where relevant, make recommendations for classification of the site. 216. Environment Protection Act 1970 (Vic) s 62A; and see Premier Building and Consulting Pty Ltd v Spotless Group Ltd [2007] VSC 377; Waste Management and Pollution Control Act (NT) ss 77–82; Environment Protection Act 1993 (SA) s 104. Also see, for example, Micklyn Investments Pty Ltd v Diggers Australia Pty Ltd [2006] SAERDC 76 (clean-up of groundwater pollution emanating from underground storage tanks).

217. Protection of the Environment Operations Act 1997 (NSW) Sch 1 Pt 1 cll 15 and 15A; Pt 2. Environmental Planning and Assessment Regulation 2000 (NSW) Sch 3 cl 15 (contaminated soil treatment works are ‘designated development’); Environmental Protection Act 1994 (Qld) ss 424 and 425. And on the interpretation of contaminated soil treatment works, see WRF Property Pty Ltd v Armidale Dumaresq Council [2003] NSWLEC 223. 218. Contaminated Land Management Act 1997 (NSW) s 54; Environment Protection Act 1993 (SA) s 103X. 219. Contaminated Land Management Act 1997 (NSW) ss 48–53; Environmental Protection Act 1994 (Qld) ss 381, 395 and 410; Environment Protection Act 1993 (SA) ss 103U–103W; Environment Protection Regulations 2009 (SA) Pt 5 Div 2; Contaminated Sites Act 2003 (WA) ss 69–72; Contaminated Sites Regulations 2006 (WA) Pt 9, Sch 3 (code of conduct for auditors). 220. Environmental Protection Act 1994 (Qld) ss 381–389 (investigation report), 395–400 (validation report); Environment Protection Act 1993 (SA) ss 103H(2)(g) and 103J(2)(j) (site contamination audit report); Contaminated Sites Act 2003 (WA) s 73. 221. Contaminated Land Management Act 1997 (NSW) s 53B. In South Australia, a site contamination auditor or consultant must, in any written report that the auditor or consultant prepares in relation to a site, clearly qualify any statement of the auditor’s or consultant’s opinion as to the existence of site contamination at the site by specifying the land uses that were taken into account in forming that opinion: Environment Protection Act 1993 (SA) s 103ZA. 222. Contaminated Land Management Act 1997 (NSW) s 53B(3); Environment Protection Act 1993 (SA) s 103Z(4); Environment Protection Regulations 2009 (SA) reg 67. 223. Heavenly Queen Temple Society Inc v Maribyrnong City Council [2005] VCAT 875. 224. Architype Australia Pty Ltd v Yarra City Council [2009] VCAT 662. 225. See, for example, Manwelland Pty Ltd v Dames & Moore Pty Ltd [2000] QSC 432; [2001] QCA 436. 226. Environment Protection Act 1997 (ACT) s 136B, Sch 3. 227. Waste Management and Pollution Control Act 1998 (NT) s 108(1)(p). 228. Waste Management and Pollution Control Act 1998 (NT) s 108(1)(q). 229. Waste Management and Pollution Control Act 1998 (NT) s 79(1)(d). 230. Contaminated Land Management Act 1997 (NSW) s 61. 231. Contaminated Land Management Act 1997 (NSW) s 62. 232. For the definition of dissatisfied person, see Contaminated Land Management Act 1997 (NSW) s 520. 233. Decisions regarding contaminated land are made under Contaminated Land Management Act 1997 (NSW) Ch 7 Pt 8. Decisions that may be appealed to the Planning and Environment Court are indicated by Sch 2 original decisions. 234. Environment Protection Act 1993 (SA) s 106(1)(d), (3)(a), (4). 235. Environment Protection Act 1993 (SA) s 107(3). 236. Environment Protection Act 1993 (SA) s 108(1)(c). 237. Environmental Management and Pollution Control Act 1994 (Tas) s 74O. 238. Environmental Management and Pollution Control Act 1994 (Tas) s 74O(2). 239. Environmental Management and Pollution Control Act 1994 (Tas) s 74O(3)–(5). 240. Under a notice given by the Committee under Contaminated Sites Act 2003(WA) s 40. 241. Under a notice given under Contaminated Sites Act 2003 (WA) s 55(6).

242.

Under Contaminated Sites Act 2003 (WA) s 67 (an exemption certificate specifies the extent to which a person is not responsible for remediation in certain circumstances).

243. Contaminated Sites Act 2003 (WA) s 77(1).

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Chapter 17 Energy and Climate Change Introduction 17.1 Climate change offers the ideal scenario for consideration of most, if not all, of the legal concepts that have underpinned this book: the possibility of using common law remedies (Chapter 3); the Australian response to climate change inevitably being affected by international policy and law (Chapter 4); issues about whether sovereignty really has to take a backward step to effectively deal with the problem, and emphasising the need for federal and state governments to work in harmony to project Australia’s position (Chapter 5); of course, the ultimate in considerations of ecologically sustainable development (Chapter 8); government decision-making on future energy requirements and sources of energy being questioned via principles of judicial review and through merits appeals (Chapter 22); climate change considerations affecting strategic planning, integrated management of natural resources, and the environmental assessment of proposed developments (Chapters 9–12); the impacts on biodiversity demand policies aimed at protection as well as adaptation (Chapters 13–14); and greenhouse gases of course being categorised as pollution (Chapter 15). 17.2 The approach taken in this chapter is to review the legal and policy responses to anticipated climate change. As was indicated at the beginning of this book, creation of policy and law responds to science and to public concern and public interest. Law, and usually policy, accepts the preponderance of evidence to prove a case. Although there are undoubtedly climate ‘sceptics’ abroad, the weight of scientific evidence suggests overwhelmingly that climate change is real, that it is caused by the release of ‘greenhouse’ gases, and that human activities are a primary cause of global warming.1 Predicted impacts on Australia include vulnerability of native species and

ecosystems such as the Great Barrier Reef;2 stresses on water resources including prolonged periods [page 722] of drought; increased unpredictability of natural events such as storms and cyclones; and vulnerability of agricultural areas to changing rainfall patterns.3 As economist Professor Ross Garnaut said in his report to the federal government,4 there is no rational choice but to accept on a balance of probabilities that mainstream science is right in pointing to the high risks from unmitigated climate change. In other words, taking action on climate change is a risk reduction strategy. 17.3 Given the impacts that are predicted to occur from widespread global warming, socioeconomic as well as environmental, it is not surprising that economists as well as environmentalists are demanding that governments take strong action to reduce greenhouse gas emissions. Corporate Australia is also being urged to take a leading role in voluntary reduction of greenhouse emissions.5 The 2007 Stern Review6 in the United Kingdom, conducted by the respected former World Bank Chief Economist Sir Nicholas Stern, dubbed climate change as ‘the greatest and widest ranging market failure ever seen’ and predicted that the costs of not taking action would far outweigh in the longer term the costs of taking action now to address the human causes of global warming. Stern recommended putting a price on carbon as well as tackling deforestation and increasing carbon finance to developing countries. In Australia, the Garnaut Review7 reflected the Stern Review findings that ‘business as usual’ was not an option, and that the costs of taking urgent action would become more expensive the longer action was delayed. In the event, the costs of the measures recommended by Garnaut were predicted to amount to between 0.1 and 0.2 per cent of annual economic growth to 2020. Responses to climate change in Australia, at a national level, rely more on incentives than regulation. Attempts to put a price on carbon, through the passage of the Clean Energy legislation by the Labor Government, have been wound back by the Liberal government, which has now repealed much of the clean energy package, and reduced the renewable energy target (RET) from 41,000 gigawatt-hour (GWh) to 33,000 GWh by 2020. At a practical level, responses to climate change can be seen through the evaluation of applications for development consent, and policies of local government to retreat from areas threatened by sea level rise. These issues are considered later in this chapter.

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The Climate Change Convention and the Kyoto Protocol 17.4 The starting point for discussion, however, must be the international obligations Australia has now assumed under the Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC). The UNFCCC, to which Australia has always been party despite its delay in ratifying the Protocol, adopts the precautionary principle as a guiding principle for all signatories. This alone should be enough to persuade the sceptics that, in the absence of reasonable evidence that global warming is not real, or at least is not caused by human activities, action should be taken to deliver the objectives of the Convention irrespective of individual beliefs. The UNFCCC also goes on to refer to the necessity to enact effective domestic legislation; to take climate change into account in undertaking environmental assessment of proposed activities; and of course to urge developed nations to take the lead in reducing emissions of greenhouse gases. 17.5 The Kyoto Protocol requires parties to account for emissions of greenhouse gases8 (the ‘greenhouse gas inventory’) from four particular sources: energy, waste, industrial processes and agriculture.9 In addition, parties must also account for land use, land use change and forestry activities ((LULUCF): art 3.3); specifically, deforestation, afforestation and reforestation.10 The Protocol commits 38 industrialised nations (Annex B parties) to reducing emissions of greenhouse gases to an average of 5 per cent below 1990 levels during the period 2008–12. Revised, longer term targets for successive periods failed to be agreed at the Convention of the Parties (COP 15) meeting in Copenhagen in December 2009; but this is hardly surprising, since it took some eight years for the Kyoto Protocol to come into effect, and even then the United States failed to agree. To put targets in perspective, the United Kingdom has committed to reducing greenhouse gas emissions to at least 80 per cent below 1990 levels by 2050,11 as compared with its allotted target of 12.5 per cent of the European Union’s 8 per cent target for the period 2008–12. Economies in transition may use a baseline year other than 1990; while developing nations are not yet required to commit to any targets, though they remain bound to the objectives of UNFCCC and must report emissions and steps being taken to comply with UNFCCC. The different obligations placed on developed nations

compared to developing nations, of course reflects the principle of ‘common but differentiated responsibility’12 referred to in Chapter 4. By the end of January 2010, 55 countries, including developing nations, representing 78 per cent of global emissions, had voluntarily agreed to reducing emissions by 2020. [page 724] 17.6 Targets for reducing or limiting emissions are expressed as levels of allowed emissions, or ‘assigned amounts’. The allowed emissions are then divided into ‘assigned amount units’ (AAUs). In calculating emissions reductions and removals, activities relating to land use, land use change and forestry activities13 may be included; though parties may also elect to include vegetation management, including halting broad-scale land clearing (a concession won by Australia), and grazing and cropland management.14 Developing a legal basis for reducing emissions from deforestation and degradation (RED(D)),15 particularly in tropical rainforests, was, as expected, a key issue at the UNFCCC COP 15 meeting in Copenhagen, where it was determined that funds should be immediately mobilised for this purpose. Parties were also be expected to implement policies on energy efficiency, alternative forms of energy, sustainable agriculture and transport, and environmentally sound technologies. At Copenhagen (2009), a Technology Mechanism was established to accelerate progress in developing technologies for mitigation and adaptation. Calculation of emissions and reductions must adopt methodologies acceptable to the IPCC. After the Kyoto commitment period came to an end (2012), the unit holdings for each Annex B party would be compared with the party’s emissions over the commitment period in order to assess whether it had complied with its emission target under the Kyoto Protocol. 17.7 At the 16th Conference of the Parties in Cancun (the Cancun Agreements), in December 2010, the parties agreed to a number of fresh innovations,16 including a green climate fund to support projects, programs, policies and other activities in developing countries; a new Technology Mechanism to facilitate enhanced action on technology development and transfer to support action on mitigation and adaptation; and an Adaptation Framework, to enhance action on adaptation, including through international cooperation and enhanced action to reduce vulnerability and build resilience in developing countries. 17.8 At COP 17, held in Durban in 2011,17 governments decided that the Kyoto Protocol would move into a second commitment period in 2013, in a

seamless transition from the end of the second commitment period in 2012. All developed country governments and 48 developing countries affirmed their emission reduction pledges up to 2020. [page 725] A major outcome of COP 17 was the establishment of the Durban Platform for Enhanced Action, which indicated a pathway to negotiate a new universal emission reduction agreement by 2015, to come into effect by 2020. At the COP 18 meeting in Qatar in December 2012, a timetable to achieve the new reduction agreement was endorsed; and the parties also agreed that the Kyoto Protocol would be extended for a further period of eight years from 2013. The parties also agreed on support mechanisms for developing countries, including a registry that will record developing country mitigation actions that seek recognition or financial support. At COP 21, held in Paris in December 2015, a significant global agreement to limit global warming to less than 2 degrees Celsius, compared to preindustrial levels, was finally reached by the parties. This agreement will become legally binding if confirmed by at least 55 countries, which together represent at least 55 per cent of global greenhouse emissions.18 The agreement calls for zero net anthropogenic greenhouse gas emissions to be reached during the second half of the twenty-first century. The agreement also agrees to pursue a global warming target of 1.5 per cent, which would mean reaching a target of zero net emissions sometime in the first half of the twenty-first century.

Eligible emissions reduction activities 17.9 Emission reduction targets may be achieved not only by limiting or reducing emissions of greenhouse gases, but also by using agreed marketbased mechanisms, essentially offsets: emissions trading (the ‘carbon market’: art 17), joint implementation (art 6) and the Clean Development Mechanism (CDM) (art 12). To participate in these mechanisms, parties must meet prescribed criteria, including the ability to estimate emissions and removal of greenhouse gases within their own territory, and track the creation and removal of the various components of the trading or offsets schemes. 17.10 Clean Development Mechanism (CDM) allows industrialised nations to invest in emissions reduction activities in developing nations and thereby earn certified emission reduction (CER) credits. Each credit is equivalent to

one tonne of carbon dioxide, which can then be offset against the target of the nation gaining the credit. To qualify to earn credits, a project must be shown to create verifiable and measurable reductions over and above what would otherwise have occurred without the project. 17.11 Joint implementation is where a developed nation invests in an emissions reducing project in another developed nation. The project must, again, be additional to what might otherwise have occurred without the investment. To gain emission reduction units the project must be supplemental to domestic activities designed to [page 726] achieve an emissions reduction target. No particular proportion of emissions reduction through domestic activity is specified by the Protocol; but parties to the Protocol must provide enough information to the secretariat to demonstrate that their use of these mechanisms is supplemental to domestic action aimed at reducing emissions. 17.12 Emissions trading can occur where a party does not use all of its allowable emissions. It may trade the excess with other nations who are exceeding their allowed emissions: this is the ‘carbon market’ in which carbon is traded like any other tradeable commodity. The trading scheme also provides for trading in other calculable and trackable units: (a) a removal unit (RMU) calculated by reference to land use, land use change and forestry activities; (b) an emission reduction unit (ERU) generated by a joint implementation project; and (c) a CER generated from a CDM project activity. Trading in units is tracked and recorded through two types of registry: national registries kept by the 38 nations, including Australia,19 that may trade allowed emissions; and the CDM registry for issuing CDM credits and distributing them to national registries. Each registry is linked to the International Transaction Log (ITL), which verifies the legitimacy of trades under the Protocol and may require registries to terminate transactions found to be in breach of the rules. 17.13 The way it works, under a cap and trade system, is that regulated industries that might otherwise exceed their allowable current and future emissions may purchase emissions reductions from others in lieu of reducing their own emissions. Emissions can be calculated by placing meters at regulated facilities. Trading emissions has been going on in Europe for some

time. Offset credits can also be purchased from emissions-reducing projects in developing countries, authorised under the United Nations CDM. The difficulty with authorising trades of this sort, of course, is that the commodity being traded — carbon — manifests no physical form; it is an invisible substance, the value of which lies solely in its absence. Claims about emissions reductions also depend on future as well as present conduct. Crucially, the ability to create offset credits depends on the concept of ‘additionality’; that is, that the emissions reduction project would not have happened without the capital to be generated by selling carbon credits. This is usually done by seeking to prove that the project would make no economic sense without the CDM to support it. 17.14 The United Nations has somehow to be satisfied then not only that the project is dependent on, and would not have happened in any case without, the CDM, but that claimed emissions reductions are possible and real. To validate project claims, potential emissions reductions, and later verify that in fact emissions have occurred, the UN has certified some three dozen private entities worldwide as Designated Operational Entities (DOEs).20 It is the job of the DOEs to test the claims of emissions reducers seeking to sell offset credits to regulated facilities. Potential sellers of credits contact a DOE to have their project assessed. Buyers of credits only receive them after [page 727] a DOE verifies that the project is legitimate within the context of ‘additionality’, and that promised reductions have actually occurred. Only at this stage does the credit become a CER so as to enable emitters to use them against their caps. A lot therefore depends on the DOEs, and on UN capacity to audit the DOEs. Credits, once issued, are not revocable even if subsequently found to be based on faulty assumptions or inadequate reviews. If faulty credits are allowed to be calculated towards emissions reductions, then of course this would call into question the actual size of claimed emissions reductions, striking at the heart of global emissions reductions targets. Another potential weakness, of course, is that the DOE is employed by the project developer, not by an independent UN body.

Domestic legislative initiatives

17.15 It must be appreciated at the outset that, at present in Australia, emissions of greenhouse gases are neither prohibited nor restricted.21 Legislation requires only that emissions above certain thresholds should be reported. A mechanism to price each tonne of carbon emitted above those thresholds, introduced by the Rudd Labor government, has been repealed by the current Liberal government. Nevertheless, carbon pricing is still seen by many as the most effective way of reducing greenhouse gas emissions.22 Complementary legislation introduces incentives for the use of sources of renewable energy, and the more efficient use of energy. Climate change has in fact been historically the least regulated area of environmental policy. The previous Howard Liberal government not only refused to ratify the Kyoto Protocol, but also based its reaction to what appeared to be a grudging recognition of the mounting evidence about climate change on a purely policy driven response, relying on voluntary corporate action to drive fundamental change.23 The justification for this approach was based partly on the argument that since Australia contributes just 1.5 per cent to global emissions of greenhouse gases,24 policy responses in Australia should not go ‘overboard’, risking disproportionate impacts on an economy heavily reliant on coal mining to fuel production of energy and produce income from exports. 17.16 State responses to the perceived lack of action by the Howard government were to introduce policy and legislative instruments of their own, particularly in relation to energy efficiency, renewable energy targets and a proposed national emissions trading scheme. South Australia even set a legislated emissions reduction target of 60 per cent by 205025 and, to the extent that it could in the absence of a national approach, empowered the minister to progress action towards this target, [page 728] including increasing the generation and consumption of renewable energy.26 While the South Australian legislation has since been repealed, legislation in Victoria and the Australian Capital Territory remains current; although emission targets have now been repealed in Victoria. 27 17.17 However, although the Australian government eventually ratified the Kyoto Protocol,28 domestic legislation still had to run the gauntlet of a sceptical Senate and opposition Liberal Party, some of whom had doubts about whether climate change exists at all, and many of whom were in any case doubtful about whether the Rudd government’s approach, based on an emissions trading scheme, was the right response to the problem. Many

members of federal parliament, in the wake of the supposed ‘failure’ of the Copenhagen meeting of global leaders in December 2009,29 did not want to commit Australia to what they argued might be unilateral and unnecessarily costly domestic initiatives. 17.18 The upshot of all this was the subsequent abandonment by the Gillard government of the Rudd government’s Carbon Pollution Reduction Scheme (CPRS)30 in favour of a new policy (the Clean Energy Package) based upon the surrender of a permit for each tonne of carbon dioxide equivalent released into the atmosphere (a good example of the ‘polluter pays’ principle in action). The central plank of the package was the hotly contested carbon pricing mechanism, designed to encourage the uptake of sources of clean energy to steadily replace reliance on energy production based essentially on coal and petroleum. The mechanism placed a monetary value on [page 729] each tonne of carbon emitted into the atmosphere by liable entities (dubbed a ‘carbon tax’ by the incoming Liberal government). 17.19 Although the long-range target was that 100 per cent of eligible emissions permits would be auctioned, transitional arrangements to protect exposed industries would see a high percentage of permits allocated without auctioning in the early years of the scheme. In addition, compensation for emissions-intensive industries, to allow transition to the scheme, was also a significant feature of the final package. The price of permits was capped progressively for the first three years; agriculture, which was not covered by the scheme as an emitter, would be able to benefit from delivering carbon offsets; and Kyoto compliant offsets, as described above, as well as other international offsets, would be recognised in later stages of the scheme. Methodologies for estimating greenhouse gas emissions, and for record keeping and reporting, were as set out in the National Greenhouse and Energy Reporting Act 2007 (Cth): see 17.21. Development of national, rather than individual state, targets is of course the only really feasible, efficient and effective approach to take. The plan that replaces the previous federal government’s Clean Energy Package is the Direct Action Plan,31 which relies on grants from an Emissions Reduction Fund to provide incentives for emissions reduction across the Australian economy. The Direct Action Plan is given legislative authority under the provisions of the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) Pt 2A. Various types of projects are eligible for funding through this initiative,32

including the capture of fugitive emissions from coalmines, alternative treatments for organic waste and reforestation. Registered projects33 may bid at a ‘reverse auction’ (one in which the supplier bids to supply services at a designated price) to enter into a carbon abatement contract with the Clean Energy Regulator to provide a stated quantity of Australian Carbon Credit Units (ACCUs), at a price determined by the price bid at the auction. The Clean Energy Regulator runs auctions to select bidders, who promise to achieve the most significant and effective emissions reductions at the best possible price.34 To receive ACCUs the project must be audited regularly to confirm emissions reductions. ACCUs may be bought as offsets for businesses wishing to voluntarily reduce their carbon emissions or achieve carbon neutrality under the National Carbon Offset Standard 2015.35 [page 730] Registered projects are placed on a public register by the Clean Energy Regulator.36 The Register can be used by buyers looking for possible sources of Australian carbon credit units; or for people wishing to buy land that has a sequestration offsets project attached to it, so that they can factor into the sale price the potential costs and benefits of the project. 17.20 Under the Kyoto Protocol, Australia is required to restrict annual emissions of greenhouse gases to within 108 per cent of 1990 levels between 2008–12.37 The government has now set a target for emissions of 26 to 28 per cent below 2005 levels by 2030.38 This replaces the previous target to reduce emissions to 5 per cent below 2000 levels by 2020.

National Greenhouse and Energy Reporting Act 2007 (Cth) (NGERA) 17.21 Preparation for the now abandoned CPRS began with legislated requirements for reporting greenhouse emissions under the National Greenhouse and Energy Reporting Act 2007 (Cth) (NGERA) and National Greenhouse and Energy Reporting Regulations 2008 (Cth), and this legislation has remained central to the policy approaches under both Labor and Liberal governments under the NGERA, corporations that emit greenhouse gases or consume or produce energy in excess of stated thresholds39 must register40 and report their emissions, including any offsets for emissions, and energy production and consumption on an annual basis.41 Estimating emissions is done by reference to accepted methodology

detailed in the National Greenhouse and Energy Reporting (Measurement) Determination 2008, as amended.42 Failure to comply with the Act may attract civil and criminal penalties, with provision also for enforceable undertakings.43 Submitting false or misleading information, for example about emissions, to the regulator may attract criminal penalties under the Commonwealth Criminal Code Div 137;44 and significant powers to audit persons and corporations are contained in the NGERA.45

The Carbon Farming Initiative (CFI) 17.22 The CFI,46 passed into law under the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth), and supported by the Carbon Credits (Carbon Farming Initiative) Rule 2015 [page 731] (Cth), is a carbon offset scheme that allows farmers, foresters and other land managers47 (who are not otherwise liable for their carbon emissions) to create Australian carbon credit units48 by carrying out carbon storage and pollution reduction activities on their land.49 Projects that sequester carbon from the atmosphere and store it in living biomass, dead organic matter or soil are known as ‘sequestration offsets projects’.50 Projects that avoid releases of greenhouse gases into the atmosphere by containing carbon in living biomass, dead organic matter or soil are known as ‘emissions avoidance offset projects’.51 Carbon credits earned by such projects (‘eligible offsets projects’ as declared by the Clean Energy Regulator52) can be sold under the carbon pricing mechanism, and eventually sold to overseas buyers and for use in voluntary markets.53 Carbon credits initially issue to the proponent for an eligible offsets project who holds the relevant carbon sequestration right, but thereafter the credits can be traded in the market separately from the property right. Although a voluntary scheme, the CFI has the potential to significantly assist Australia to meet Kyoto mitigation targets, as well as contribute to more sustainable land management practices. 17.23 The CFI legislation establishes a mechanism to approve methodologies for implementing and monitoring specific abatement activities under the scheme,54 and to monitor and measure greenhouse gas abatement. Methodologies must also comply with the Offsets Integrity Standards.55 Such methodologies may encompass, for example, management of methane from livestock; sequestration56 of carbon by forests and soil management; and landfill gas recovery.57 Proposed offsets projects must also satisfy other

scheme eligibility requirements, including and not being on a ‘negative list’ of activities that are excluded from the scheme because of, for example, [page 732] potential impacts on water availability, biodiversity or agricultural productivity.58 A public register of offset projects must be kept by the Clean Energy Regulator.59 17.24 To support investment and trading in offset projects, sequestration in trees, vegetation and soils must have a degree of ‘permanence’; that is, that the sequestration will be maintained for the effective life of the investment. To enable monitoring and maintenance, and in order to verify the continuing availability of the sequestration that has been traded, the holder of the carbon sequestration right will need access to the land on which the right has been created. Since neither the CFI nor state legislation addresses this point, it is likely that holders of carbon sequestration rights will need to make access arrangements directly with relevant landholders. The risk that sequestration will become ‘unavailable’, either because of natural disasters or because landholders later refuse access or destroy the source of the sequestration, is addressed in the CFI through a number of measures, including allocating credits only to 95 per cent of the calculated sequestration in order to form a ‘reversal buffer’.60 A ‘significant reversal’ of carbon sequestered may also impose an obligation to relinquish credits.61 Failure to comply with a relinquishment requirement may trigger penalty provisions62 and lead to a declaration of a ‘carbon maintenance area’ over the relevant land that prohibits the landowner and any other person from engaging in conduct that results in a reduction below the ‘benchmark sequestration level’63 (the number of tonnes of carbon sequestered in the project area at the time when a carbon maintenance obligation is imposed64).

Energy 17.25 A large majority of Australia’s greenhouse gas emissions come from the energy sector; and emissions from stationary energy sources; for example, power stations, represent over half the total emissions from energy sources. Given that the Kyoto Protocol urges the parties to research, develop and use renewable forms of energy (art 2), it might be expected that this would be a primary focus for management of energy demand and supply in Australia.65 The Renewable Energy (Electricity) Act 2000 (Cth) introduced a

Mandatory Renewable Energy Target (MRET)66 that required energy wholesalers to buy an [page 733] increasing proportion of their energy from renewable energy sources (at least until 2010) and surrender renewable energy certificates (RECs) created by power generators attesting to that fact. The target was initially a modest 2 per cent over the 10 per cent already existing as a result of previous investment in hydro-electric schemes built in Tasmania and New South Wales over the past 60 years. Under the Rudd and Gillard governments, the target rose to 20 per cent renewable energy by 2020. Since the federal government has no specific powers for land use planning and development control, achieving this target will of course depend heavily on state-based policies and planning systems for development of sources of renewable energy. Further energy production from development of wind farms is controversial in local communities, and thus subject to legal challenges and merits appeals.67 The RET has been regularly criticised by conservative forces for artificially raising the cost of electricity. In 2014, the government released the report of an independent panel on the review of the RET.68 The review found that the RET is a high cost approach to reducing emissions because it promotes activity in renewable energy ahead of alternative, lower cost options for reducing emissions that exist elsewhere in the economy. Subsequently, the government agreed with the Labor opposition to reduce the RET for 2030 to 33,000 GWh (down from 41,000 GWh). The government claims this means that by 2020 about 23.5 per cent of Australia’s electricity generation will be from renewable sources.69 17.26 From 1 January 2011, the RET has operated as two parts: the Largescale Renewable Energy Target (LRET), and the Small-scale Renewable Energy Scheme (SRES).70 The LRET encourages the deployment of large-scale renewable energy projects such as wind farms, commercial solar and geothermal; while the SRES supports the installation of small-scale systems, including solar panels and solar water heaters. The bulk of the RET will be delivered by LRET projects. The scheme of the legislation is that accredited power stations, generating electricity, create Large-scale Generation Certificates71 when they generate power using eligible renewable energy sources72 that exceed a baseline calculated on 1997 levels.73

Certificates may also be created by small generation units74 and solar water heaters installed after 1 April 2001.75 Entities making [page 734] some form of wholesale acquisition of electricity76 are then required to acquire enough certificates to satisfy their own individual targets, which are calculated with reference to the renewable power percentage (RPP)77 set for any given year based on their projected market share of consumption.78 RECs, which are transferable79 and therefore conceivably may be traded, are to be surrendered to the Clean Energy Regulator.80 Where an entity discloses a shortfall between the number of certificates surrendered and its liability, then the shortfall will either be carried forward, if less than 10 per cent of the entity’s total liability; or a charge will be imposed.81 Emissions-intensive trade-exposed activities gain partial exemptions in relation to shortfalls charges.82 As a result of the Renewable Energy (Electricity) Amendment (Exemptions for EITE Activities) Regulation 2015 (Cth), amending the provisions of the Renewable Energy (Electricity) Regulations 2001 (Cth), a 100 per cent exemption has now been granted for emissions-intensive trade-exposed activities (set out in Sch 6 of the Regulations) from all costs associated with the RET scheme. 17.27 SRES Small-scale Technology Certificates83 (STCs) can be created by solar water heaters and small generation units and sold through a ‘clearing house’ established under the Act.84 There is no cap on the number of STCs that can be created. When there is a shortage of supply in the clearing house, the regulator will be empowered to create small-scale RECs. Small-scale technology shortfall charges85 are generated similarly to large-scale charges; that is, by reference to a liable entity’s relevant acquisitions86 of electricity, its partial exemptions, the number of small-scale technology certificates it surrenders and the small-scale technology percentage.87 17.28 Some jurisdictions also provide for ‘feed-in’ tariffs from small-scale renewable energy generators. For example, amendments to the Electricity Feed-In (Renewable Energy Premium) Act 2008 (ACT) now allow mediumsized solar schemes to access the Australian Capital Territory’s feed-in tariff. Groups of small generators, for example [page 735] householders working together, will now be able to invest in collaborative solar power projects, up to 200 kW.88 Some jurisdictions retain the right to pursue more ambitious greenhouse

abatement and renewable energy targets. For example, under the Climate Change and Greenhouse Gas Reduction Act 2010 (ACT) the Australian Capital Territory has opted for a 90 per cent renewable energy target to be achieved by 2020. 17.29 The uptake of renewable energy is also being encouraged by the development of a national ‘GreenPower’ scheme, which essentially allows consumers, for a premium, to choose to have their power supplied from renewable energy sources. This is not a statutorily regulated scheme; however, to gain acceptance products do have to be rigorously accredited and audited.89 A recent report by the Climate Council90 has suggested that the electricity sector should commence an active transition to low carbon alternatives as soon as possible, to minimise risks and costs. Alternative energy options could take a decade or more to plan, approve and build.

Energy efficiency 17.30 Tackling emissions of greenhouse gases produced by the energy sector need not wholly rely on moving towards sources of renewable energy. Being more efficient with the use of energy is an approach that can be implemented immediately. Requirements for energy efficiency can be built into codes and standards; some examples are given in the chapter on sustainable development — see 8.48. The Energy Efficiency Opportunities Act 2006 (Cth) (now repealed) required businesses using above a stated threshold of energy per year91 to reassess their opportunities for energy efficiency92 and report publicly on their assessments.93 Every five years they had to submit assessment plans94 that contained deadlines95 for action on the assessed opportunities.96 The obvious weakness in this scheme was the lack of any obligation to actually take the measures that had been identified. No legislative scheme is in place following the repeal of this Act; though there are various sources of advice offered by government to businesses and households seeking to use energy more efficiently.97 The Building Energy Efficiency Disclosure Act 2010 (Cth) requires owners and tenants of large commercial office buildings to declare the energy efficiency of those [page 736] buildings before selling or leasing the building. The owner or tenant of a

building subject to this scheme must register a building energy efficiency certificate (BEEC) before it offers to sell or lease or invites offers to purchase or lease the building. Prospective purchasers and lessees have a right to require the owner or tenant to provide them with a copy of the BEEC. Any advertisements for the sale or lease of the building must contain the energy efficiency rating of the building. The maximum penalty for not having a registered BEEC or not providing an energy efficiency rating in an advertisement is $110,000. This scheme complements the NGERA scheme (see 17.21), which imposes obligations on owners, facility managers and tenants, depending on who is in a position to control energy consumption in respect of a particular building. The Victorian Energy Efficiency Target (VEET) scheme is a Victorianbased energy reduction scheme providing incentives to businesses and individuals to install energy efficient devices.98 The scheme is administered under the Victorian Energy Efficiency Target Act 2007 and the Victorian Energy Efficiency Target Regulations 2008. Under the scheme, accredited businesses can offer discounts and special offers on selected energy saving products and appliances installed at homes, businesses or other nonresidential premises. The bigger the greenhouse gas reduction, the bigger the potential saving. The targets for the VEET scheme for the next five years (2016 to 2020) are claimed to be able to deliver 30.2 million tonnes of greenhouse gas emissions savings.99 In the Australian Capital Territory the Energy Efficiency (Cost of Living) Improvement Act 2012 requires the minister to determine targets for greenhouse gas emissions to be achieved by authorised energy retailers.100 The minister may determine eligible activities that are intended to reduce the consumption of energy.101 Retailers must achieve their energy savings obligations otherwise shortfall penalties may be payable.102 Energy efficiency requirements may be required under the Building Act 2004 (ACT) or the Building Code, prescribed by regulation, that requires building work to comply with stated energy efficiency requirements. 103

Demand side management 17.31 Strategies for decreasing demand for energy and water can also be activated by ‘demand side management’;104 that is, encouraging consumers to reduce consumption. [page 737]

This is the thinking, for example, behind the requirement in New South Wales that state agencies and other entities and local councils as prescribed in Schs 1 and 2 of the Energy Savings Order 2005 (NSW) (‘designated energy users’),105 and also significant water users, certain local councils and others as prescribed, must prepare energy and water saving action plans106 under the Energy and Utilities Administration Act 1987 (NSW) Pt 6A. Although the plans are subject to approval by the minister,107 there is no requirement that they have to be implemented unless a regulation specifies it.108 Active steps to encourage energy efficient building design109 are also being promoted under the New South Wales State Environmental Planning Policy, Building Sustainability Index (BASIX),110 which requires certain types of new housing111 to meet a target of reducing greenhouse gas emissions and water use by 40 per cent in comparison to average housing of the same type. Applications for development of such housing must submit a BASIX certificate along with the application for development consent.112

Carbon capture and storage 17.32 Carbon capture and storage (CCS)113 may assist Australia to reach its reduced emissions targets for greenhouse gases while it works out ways to disentangle itself from the nation’s reliance on fossil fuels.114 CCS refers to the technological ability to capture carbon dioxide emissions from power stations and other industrial processes and to store it for long periods of time in underground geological formations. Australia is paving the way for the eventual storage of carbon in deep seabed geological formations (geosequestration),115 such as depleted oil and gas wells, and possibly other formations such as unusable coal seams, by the enactment of amendments to the [page 738] Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) and the introduction of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth). This establishes a regulatory structure for capture and storage of carbon dioxide and other greenhouse gas substances116 within the Commonwealth’s offshore jurisdiction; that is, from the three nautical mile limit outwards.117 Complementary state legislation will apply within the three nautical mile limit, as well as to onshore118 carbon capture and storage.119 Whether this regulatory regime would meet the

standards demanded by the international Clean Development Mechanism is debatable.120 17.33 ‘Prospecting’ for suitable sites for injection and storage will be allowed through the issue of either a greenhouse gas assessment permit, which lasts for six years or three years after renewal; a greenhouse gas search authority,121 which lasts only for a maximum of 180 days; or a greenhouse gas research consent.122 Exploration rights may also be granted by the conditions of a petroleum exploration permit123 or a petroleum retention lease.124 A greenhouse gas holding lease125 enables a lessee who might be able to inject and permanently store a greenhouse gas substance into an identified greenhouse gas storage formation within 15 years to retain tenure over an area while arrangements are put into place. A greenhouse gas injection licence126 authorises the licensee to carry out operations for the injection and permanent storage of greenhouse gas substances in the licence area, so long as the greenhouse gas substance is injected into, or permanently stored in, an identified greenhouse gas storage formation. A greenhouse gas special authority127 authorises operations in the area identified in the authority. 17.34 Where a greenhouse gas assessment permit, greenhouse gas holding lease, greenhouse gas injection licence, petroleum retention lease or petroleum production licence is in force, and the holder believes that a part of a geological formation in the permit or lease area is an eligible greenhouse gas storage formation — in other [page 739] words, a suitable site for injection and storage128— the minister may declare it to be an identified greenhouse gas storage formation,129 which effectively gives the permit or leaseholder the possibility of proceeding with a storage project. Construction of an infrastructure facility will also need an infrastructure licence.130 There are no particular provisions in the Act for environmental assessment of proposals for injection and storage before approval is given (‘significant risk’ to petroleum operations seems to be of more concern);131 though the minister may give directions for managing risk,132 monitoring the behaviour of greenhouse gas substances in storage formations,133 and dealing with ‘serious situations’134 as they arise. It is also an offence to dispose of other waste in conjunction with an injection of greenhouse gas substances.135 The Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009, however, contain further requirements for environment

protection; including the overall objective that petroleum and greenhouse gas storage activities should be carried out in a manner consistent with the principles of ecologically sustainable development; and also carried out in accordance with an environmental plan that contains appropriate environmental performance objectives and standards, and measurement criteria for determining whether the objectives and standards have been met.136 The environmental plan137 has a similar function to an environmental impact assessment for an onshore project (see Chapter 12), although the plan, once accepted, will have greater operational relevance, given that it is an offence to carry out an activity without an approved plan in place.138 Recent amendments to the petroleum regime allow the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) inspectors extensive powers to monitor compliance with ‘petroleum environmental laws’, which means the provisions of this Act to the extent to which they relate to offshore petroleum environmental management139 in relation to Commonwealth waters, and any requirement made under a provision of the Act to the same extent.140 To allow an inspection to occur, a ‘do not disturb’ notice may be issued to the titleholder if considered reasonably necessary to allow the inspection, examination or measurement of, or the conducting of tests, in relation to premises or plant, substance or thing.141 Following a petroleum environmental inspection in relation to a petroleum title, NOPSEMA must [page 740] send a report containing conclusions and recommendations to the title holder, who is then required to inform NOPSEMA of any action proposed to be taken in response to such conclusions or recommendations.142 Interestingly, there appears to be no power for NOPSEMA to actually issue an order specifically to enforce its recommendations, though remedial directions may be issued to petroleum or greenhouse gas titleholders or former petroleum titleholders about the following matters: (a) the removal of property; (b) the plugging or closing off of wells; (c) the conservation and protection of natural resources; (d) the making good of damage to the seabed or subsoil.143 Financial assurances or insurance may be required for such purposes. 144 However, a NOPSEMA inspector may issue a mandatory environmental improvement notice to a titleholder that concerns a contravention, or

likely contravention, of a petroleum environmental law where there is a significant threat to the environment;145 and also issue a prohibition notice if satisfied on reasonable grounds that an immediate and significant threat to the environment is apparent and it is reasonably necessary to issue the notice in order to remove the threat.146 The uptake of CCS globally, and in Australia, has not been great;147 just a dozen projects worldwide, though a large project off the coast of Western Australia (the Gorgon project) that would result in the capture and storage of 120 million tonnes of carbon dioxide into a saline aquifer underground is due to begin in 2016.148

Planning for climate change 17.35 Strategic land use planning,149 described in Chapter 9, is the most obvious vehicle through which planning for anticipated climate change can be effected, particularly for predicted sea level rise. Both statewide coastal planning,150 and local [page 741] land use plans, can earmark areas of particular risk that are vulnerable to sea level rise, and determine policies that will apply; for example, planned retreat (the strategic abandonment of land and structures), avoidance (locating new development away from areas at risk), accommodation (introducing new building and design features to manage the risk) and protection. Working out policies to adapt to climate change will involve not only strategic land use planning, of course, but also planning for greater use of sources of renewable energy,151 water resources, impacts from bushfires and biodiversity management.152 Managing activities that will generate greenhouse gases, such as coal mining, may also involve planning under the mining as well as land use planning and environment protection legislation, potentially creating a rather fragmented approach to the regulation of this industry.153

Climate litigation 17.36 The impetus for climate litigation154 is building, not just within Australia but internationally. In June 2015, a Dutch court upheld a challenge brought by a conservation organisation, Urgenda, on behalf of more than 800

citizens, arguing that the Dutch government had failed in its duty of care to protect citizens from foreseeable danger by failing to curb emissions of greenhouse gases. The plaintiffs argued that the government: (a) had an international obligation to abide by the ‘no-harm’ principle in international law; (b) had international obligations under its ratification of the United Nations Framework Convention on Climate Change; (c) that the government was in breach of article 21 of the Dutch Constitution, which states that ‘[i]t shall be the concern of the authorities to keep the country habitable and to protect and improve the environment’; and (d) the government was in breach of articles 2 and 8 of the European Convention on Human Rights, respectively providing a right to life and a right to respect for private and family life. [page 742] The court was satisfied that a duty of care was owed, that the government had a responsibility to act, and could not defend the inadequacy of its actions on the basis of inaction at an international level. The court ordered the government to cut its greenhouse gas emissions by at least 25 per cent by 2020.155 Although it is tempting to try to translate this case into an Australian context, reliance on the Dutch constitution and the European Convention on Human Rights signals that there can be no direct comparison. 17.37 In Australia, climate litigation is taking shape through merits appeals and judicial review, with the possibility of common law claims to come. Such actions are going to present court and tribunal members with arguments based on science as well as law that have hitherto likely been outside their individual or collective experience. Nevertheless, the passage below by Dowsett J emphasises the traditional role of the court as an evaluator of conflicting evidence. I have proceeded on the basis that greenhouse gas emissions consequent upon the burning of coal mined in one of these projects might arguably cause an impact upon a protected matter (under the EPBCA), which impact could be said to be an impact of the proposed action. I have adopted this approach because it appears to have been the approach adopted by Mr Flanigan (on behalf of the Minister). However I am far from satisfied that the burning of coal at some unidentified place in the world, the production of greenhouse gases from such combustion, its contribution towards global warming and the impact of global warming upon a protected matter, can be so described. The applicant’s concern is the possibility that at some unspecified

future time, protected matters in Australia will be adversely and significantly affected by climate change of unidentified magnitude, such climate change having been caused by levels of greenhouse gases (derived from all sources) in the atmosphere. There has been no suggestion that the mining, transportation or burning of coal from either proposed mine would directly affect any such protected matter, nor was there any attempt to identify the extent (if any) to which emissions from such mining, transportation and burning might aggravate the greenhouse gas problem. The applicant’s case is really based upon the assertion that greenhouse gas emission is bad, and that the Australian government should do whatever it can to stop it including, one assumes, banning new coal mines in Australia.156

Although it is tempting to label the judge a ‘climate sceptic’, the fact is that to be successful in court a litigant must adduce evidence to support his or her contentions in a civil matter on the balance of probabilities. This passage reveals the serious hurdles that confront any litigant in attempting to link ‘cause and effect’ in climate change litigation. 17.38 Litigation157 about climate-induced impacts may eventually show up in common law actions aimed at greenhouse gas producers, or, more likely, regulators, [page 743] including local authorities. Signs are, however, that government decisionmaking authorities are likely to be protected from climate litigation by statutory provisions that exclude liability where decisions are taken in ‘good faith’; see 14.47. At the moment, the most fruitful areas of litigation are undoubtedly judicial review and merits appeals of decision-making that have implications for climate-related issues. In fact, many of the topics covered in this book can be applied to the resolution of legal disputes about climate change; and engagement of the law with issues relating to climate change may well influence or affect future government policy. 17.39 There are a number of significant hurdles to address when contemplating climate change litigation: (1) Evidence of causation; for example, how do you prove that emissions from Australian coal-fired power stations or other significant sources of emissions have, or will have, a definable impact on the Australian environment or private interests? Even if the judge is not a climate change sceptic, court cases still turn on evidence. (2) To convince the court or tribunal that this is not a matter of policy best left to government and therefore ‘non-justiciable’. In practice, a litigant’s chances are improved if the case turns on measurable responses to concrete projects or particular decisions, rather than invites the court to determine in effect government policy by laying down requirements for

development that cannot be met except by a radical change of approach.158 (3) To target the person or organisation responsible for the claimed climateinduced impact. This is a significant issue in potential common law litigation, where litigation would have to prove not only that the impact is climate-induced, but also that the respondent being sued is legally responsible for the climate-induced impact. Not surprisingly, litigants in the United States are first cab off the rank with common law actions, though none have yet fully succeeded. Such a response does, however, coincide with threats by low-lying countries to sue the developed world in international law for reparation for their climate-induced losses. 17.40 Issues relating to climate change also provide a useful way of thinking about how the fundamental concepts and principles of law discussed in this book may be applied in practice to developing environmental policy and triggering environmental litigation.159 It is probably useful to keep in mind, when looking at litigation, that it may be undertaken either for the purpose of remedying past actions, or for questioning future conduct and decision-making. It is also important to bear in mind that, although litigation might be employed to question the legality or merits of specific plans or projects, courts themselves are not policymakers, and they ‘have no function directly [page 744] requiring societal adaptation to climate change or mitigation of its impacts’.160 Further discussion on the legal principles underpinning the actions and cases identified in this section can be found in Chapters 3 (the common law), 8 (ecologically sustainable development) and 22 (challenging environmental decision-making).

Are greenhouse gases ‘pollution’ under existing law? 17.41 The very title of the Rudd government’s proposed legislative response — the Carbon Pollution Reduction Scheme — suggested that carbon is already acknowledged as a pollutant.161 But what of its status under existing law? If emissions of greenhouse gases already fall within the definitions of ‘pollution’ referred to in Chapter 15, then theoretically they can be controlled under existing legislation. There seems little doubt in fact that such emissions

are pollution. For example, under the Protection of the Environment Operations Act 1997 (NSW) ‘air pollution’ means the emission into the air of any air impurity; and the term ‘air impurity’ includes ‘gases’.162 In addition, ‘waste’ includes any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment.163 Arguably, emissions of greenhouse gases are emissions of both ‘waste’ and ‘air impurities’; although in Gray v Macquarie Generation [2010] NSWLEC 34, an argument that emissions of greenhouse gases from burning coal were ‘waste’ was held by the court as unlikely to succeed. 17.42 In a hint perhaps of things to come, Australian lawyers164 seized on a decision of the US Supreme Court in Massachusetts v Environmental Protection Agency 127 S Ct 1438 (2007) to the effect that carbon dioxide and other greenhouse gases were indeed ‘air pollutants’ as defined in the US Clean Air Act and that the EPA had abdicated its responsibilities by failing to consider regulating such emissions. Caution needs to be exercised, however; the responsibilities of the US EPA cannot be directly translated into the responsibilities of regulators in Australian law, which relies much more heavily on conferment of discretions than mandatory responsibilities. Pollution control in Australia is also more of a state responsibility than federal. Nevertheless, the decision in Massachusetts does lend credence to the concept that emissions of greenhouse gases can be managed under existing regulation. So why is this not happening? What are the legal responsibilities of government regulators such [page 745] as environment protection authorities that are charged with statutory responsibilities for controlling pollution? The answer, of course, lies partly in the necessity to take a national perspective on greenhouse pollution and partly on the impossibility of ‘retrofitting’ major greenhouse gas emitters to meet whatever emission standards might be developed. 17.43 The simple fact is that when state regulators were devising plans to manage ‘pollution’, no one realised that what we now call greenhouse gases needed to be regulated. Trying to turn back the clock to now devise appropriate emission standards for existing facilities, and enforce them, is just not a practical proposition. Hence, other strategies, as described in the first part of this chapter, are being adopted; not least the conferment of regulatory

responsibility on the federal government to manage greenhouse-related issues. 17.44 Nevertheless, this has not deterred climate activists from seeking to push the boundaries of legal responsibility for emissions of greenhouse gases from existing facilities. In Macquarie Generation v Hodgson [2011] NSWCA 424, a quarry was the holder of a licence that authorised generation of electricity from burning coal. The licence did not include any express conditions covering emissions of carbon dioxide or monitoring of carbon dioxide emissions, but the plaintiffs submitted that these could be read in by implication. In the Land and Environment Court (Gray v Macquarie Generation [2010] NSWLEC 34), the judge had held that it was reasonably arguable that the authority conferred by the licence was subject to an implied limitation or condition preventing the quarry emitting carbon dioxide in excess of the level it could achieve by exercising reasonable care for the interests of other persons and/or the environment. The Court of Appeal said, to the contrary, that such an implied condition would contradict the licence; and that it was necessary to imply a term permitting the generator to emit carbon dioxide because a licence to burn coal would otherwise be ineffective. Although a licence could neither expressly, nor by implication, condone the commission of a nuisance (see 3.40), no nuisance had in fact been alleged in this case. Handley AJA said (at [64]): The licence may not authorise the creation of a nuisance but this would not depend on quantitative limitations on production, consumption, or emissions but on proof of the nuisance. The fact, if it be the fact, that the licence would not authorise a nuisance cannot matter if there is no nuisance.

The approach to limiting emissions of greenhouse gases from future installations, however, is very much a live issue. This is engaged mainly through actions based on merits appeals and judicial review: see 17.57 and following.

Climate change and impacts on property rights 17.45 The Kyoto Protocol allows activities relating to LULUCF to be included when calculating emissions and emission reductions. This means that sequestration of carbon by trees and vegetation (biosequestration) may be used to calculate Australia’s net greenhouse gas reductions. Activities of landholders therefore that amount, under the Protocol, to afforestation, deforestation or reafforestation, may be used to meet

[page 746] Australia’s greenhouse reduction targets. The Protocol165 also enables a party to include sequestration of carbon in agricultural soils. Methodologies for calculating carbon storage in soils are being progressed under the Carbon Farming Initiative: see 17.22. 17.46 When regular carbon trading becomes a reality in Australia, the common law concept of ‘property rights’ will have to be manipulated to confer security on the ‘property’ that is being traded166— in other words, the carbon sequestered by vegetation and soils, or sequestered by carbon capture and storage, where there are still significant uncertainties about property rights.167 Sequestered carbon as a right of property separate to the trees, vegetation or soils that sequester the carbon would not be a property right known to the common law; so to underpin, or grant security for, the tradability of the sequestered carbon a new species of property right will need to be created by legislation. The states have therefore legislated168 to recognise carbon sequestered in vegetation and, in Queensland and Victoria, soils,169 as a form of property right. The nature of the property right being created is in the nature of (though not directly attributable to) what the common law would recognise as a ‘profit à prendre’.170 This is only the starting point, of course, for contemplating how trading carbon under the Kyoto Protocol and Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) will mesh with this legislation, and indeed the general laws of contract.171 A requirement for creating recognised and tradeable carbon credits (personal property) under the CFI is the separation of property rights in sequestered carbon from the trees and the land that supports it (real property); though since the state legislation was enacted prior to the passage of the Commonwealth legislation it is not yet entirely clear how it will work in practice. In any case, only the Queensland and Victorian legislation as yet support soil sequestration. To give security to potential investors in carbon credits, the CFI must ensure that the project proponent is held responsible for maintaining the sequestration of the carbon; in other words, that the trees, vegetation or soils in which the carbon is sequestered continue to fulfil the expectation on which the investment was based. In order to carry out these responsibilities, the proponent will need to have access to the land on which the sequestered carbon lies. Such rights are not directly conferred by the state legislation, so the holder of the carbon sequestration right must acquire them by negotiating agreements or covenants about [page 747]

land access with the relevant landholder. Unless such agreements are in place then it is unlikely that the Clean Energy Regulator will be able to declare a sequestration project to be an eligible offsets project under the CFI. Decisions taken in anticipation of climate change may, of course, impact on other projects and activities.172 Where such decision-making affects property rights, could an ‘acquisition’ triggering a right to compensation be effected? Could restrictions on the ability to use native vegetation in effect amount to an acquisition of a right to create eligible carbon credits under the CFI?173 Or does the opportunity to create and trade such carbon credits open up new possibilities for economic use of land that is otherwise subject to native vegetation restrictions?

How might common law remedies be used in climate-induced litigation? 17.47 As we saw in Chapter 3, common law remedies may effectively be used to compensate landowners and others for environmentally induced damage to their property, person or legitimate economic interests. Could these concepts extend to climate-induced damage? Who would a landowner sue for compensation or other orders? Can ‘cause and effect’ be established? The chances of common law actions being successful certainly increase where there is an identifiable loss to an identifiable plaintiff caused by an identifiable respondent. Vague claims — for example, that ‘producers of fossil fuels’ or ‘vehicle manufacturers’ should be legally liable for climate-induced impacts to large classes of ‘the public’, or some such variation on this174 — are not likely to gain traction in Australian courts. But where concrete action or decisionmaking creates identifiable impacts to an identifiable plaintiff, then the story might be different. 17.48 The problem besets coastal councils175 in particular, and rather than waiting to see what might eventuate from predicted tidal surges and rising water levels, some local councils are adopting a policy of ‘planned retreat’; by buying up waterfront properties as they come to market, but, importantly, also establishing setbacks176 for development near, and refusing to allow further development in, potentially affected areas (or at least insisting that such developments should be only temporary and movable); and by refusing to allow landowners to protect their own properties by constructing walls and [page 748]

other works to keep the sea at bay.177 In turn, councils may then become common law litigants, seeking injunctions to prevent landholders from contravening local planning controls by ‘going it alone’ without consent. 17.49 This latter circumstance arose in Byron Shire Council v Vaughan [2009] NSWLEC 88, where the respondent landowner had caused rocks to be deposited on his property to protect it from encroachment and damage by the ocean. The council had adopted a policy of ‘planned retreat’ under which development was to be relocatable so that as erosion moved landward, development could be removed, and possibly relocated, rather than being prevented at all times. Although the court was prepared to issue an interim injunction to prevent the respondent taking any more ameliorative measures without planning consent, since the respondent alleged that works for which the council had given itself planning consent had failed to prevent damage to the respondent’s property, further actions in nuisance or negligence might be expected. Partly in response to the controversies raised by the Vaughan case, the New South Wales parliament introduced reforms to the Coastal Protection Act 1979 (NSW) that now allow landowners to protect their properties from coastal erosion, under strict conditions: see 18.55. 17.50 On the other hand, a local authority that does approve works designed to resist the impact of changes to coastal environments in order to protect private property or public amenity, may also find itself sued by landowners on whom the consequences of such works have impacted. For example, many restorative or preventative works, such as building rock walls and replacing sand, may, if poorly conceived or designed, end up exacerbating the problem they were designed to fix by simply transferring the impact from the properties they were trying to protect to properties further away. 17.51 The question then arises if such actions by disgruntled landowners suing local councils for nuisance or negligence become a distinct possibility, whether parliaments might intervene to protect councils from such liability. In the Vaughan type of case, a common law action in nuisance might be complicated by the fact that the Conveyancing Act 1919 (NSW) prohibits the law of nuisance being used to claim support from adjoining land (in Vaughan’s case, council land). Civil liability legislation might also impact on claims for negligence against public authorities where a duty of care in civil torts litigation must be interpreted in the context of the general principles about responsibilities and functions outlined in the legislation.178 And, of course, statutory exemptions might also be used or concocted to

govern these specific situations. For example, there is an existing exemption for local councils in New South Wales making decisions about ‘flood liable’ land and land in the coastal [page 749] zone so long as they act in ‘good faith’;179 and these immunities have recently been extended to: (a) the failure to upgrade flood mitigation works or coastal management works in response to projected or actual impacts of climate change; (b) the failure to undertake action to enforce the removal of illegal or unauthorised structures that results in erosion of a beach or land adjacent to a beach; (c) the provision of information relating to climate change or sea level rise; and (d) anything done or omitted to be done regarding the negligent placement or maintenance by a landowner of emergency coastal protection works authorised under the Coastal Protection Act 1979 (NSW).180 Where ‘property rights’ are at stake, it is hardly conceivable that the legislature would not react to any strong possibility that state and local government authorities might be open to indeterminate liability for damages based on climate-induced common law claims. 17.52 Note that the possibility of bringing common law claims is, however, possible in the absence of such protective devices; and possibilities are being actively explored, again in US courts, although so far unsuccessfully. In Connecticut v American Electric Power 406 F Supp 2d 265 (SDNY) 2005, a claim in public nuisance was initially dismissed on the ground that, as a policy decision, emissions from power companies were non-justiciable. This finding based on justiciability was later struck down,181 opening up the case to a hearing on the issue. A similar finding on non-justiciability in Comer v Murphy Oil No 1: 05-CV-436 (SD Miss 18 April 2006) was also struck down on appeal.182 More recently, however, prospects for using laws of nuisance in climate litigation have been dealt a blow by the refusal of the 4th US Circuit Court of Appeals panel to entertain the notion, upheld in the lower court, that emissions from power plants constituted a public nuisance. The court stressed essentially that such matters raised issues of policy that courts were not competent to determine.183 17.53 The New South Wales Court of Appeal decision in Western Districts

Developments Pty Ltd v Baulkham Hills Shire Council [2009] NSWCA 283 (see 3.31), however, has possible implications for common law actions in negligence concerning approval of subdivisions in coastal zones that are potentially subject to impacts from climate change. Where statutory provisions require an authority to be satisfied about certain matters (for example, the potential for climate-induced inundation) before exercising a power, and the power is exercised without being so satisfied, then this may indicate want of reasonable care, and potential liability for economic loss through an action in negligence to persons who are vulnerable, such as prospective purchasers of subdivided lots. [page 750] 17.54 It is not only government and local government that may be susceptible to common law claims of course; operators of wind farms in particular have to be mindful of the laws of nuisance.184 Although appropriate planning conditions should be set with a view to avoiding nuisance to neighbouring landowners, as discussed in Chapter 3 a licence to operate does not of course carry any immunity from common law claims. Common law claims could also conceivably arise from leakage from carbon capture and storage projects.185

Judicial review of decision-making where climate change is a ‘relevant factor’ 17.55 Decision-makers may be challenged for failing to take into account ‘relevant factors’. The issue of what goes to make up ‘relevant factors’ is explored in 22.57 It is hard to imagine these days that climate considerations would not be relevant to most institutional decision-making; and legal challenges based on the adequacy of consideration of climate-related impacts on decision-making can be expected to increase in direct proportion to the failure of decision-makers to make it clear how such considerations have been addressed. Statutory instructions to directly consider emissions of greenhouse gases in decision-making,186 or to take account of the principles of ESD,187 the ‘public interest’188 or to take into account generally environmental impacts,189 would all go to requiring climate change impacts to be adequately considered. One of the more obvious triggers for consideration of climate change impacts is any proposal to subdivide or develop land in the coastal zone.190 Impacts of climate change would clearly be a relevant consideration for a

decision-maker and support a decision to refuse such an application.191 Climate change considerations would also [page 751] be expected to weigh heavily in any decision to approve future sources of energy production, particularly new, or extensions to existing, coalmines,192 or power stations reliant on burning coal.193 Once the relevant material has been adequately considered, however, weighting the decision-making in response to all the relevant considerations is a task entrusted to the decisionmaker with which a court on review will be reluctant to interfere.194 Reliance by a decision-maker on material that doubts the existence of climate change could also give rise to proceedings for judicial review on grounds of natural justice where parties entitled to be consulted before the decision is made have not been given a chance to make submissions on that material.195

Climate change in merits appeals 17.56 Although the availability of merits appeals is more constrained by contrast with opportunities for judicial review, especially for third party objectors,196 where merits appeals are available then climate change might be expected to figure strongly in grounds for appeal. This is particularly the case where consideration of greenhouse gas emissions is a mandatory requirement for the environmental assessment of a proposed development or activity.197 Climate impacts are also a quintessential example of intergenerational equity, and might be expected to influence decision-making particularly in relation to development of both traditional and renewable198 sources of energy. Emissions of greenhouse gases may have to be built into cost–benefit analyses [page 752] of proposals and evaluated as an external cost.199 Merits appeals on approvals and operating conditions of new or extended coalmines will concentrate also on likely emissions and their contribution to global warming,200 including claims that offsets should be required as a condition of operation.201 The problem in this regard is, however, likely to be that outlined by the Land Court in Xstrata Coal Queensland Pty Ltd v Friends of the Earth – Brisbane Co-Op Ltd [2012] QLC 13 at [601] and [605]: The principles of ESD form part of the ‘standard criteria’ defined in Schedule 4 of the EPA, which the Court must consider under s.223 of the EPA. The reference in the ESD principles to ‘the global dimensions of environmental impacts of actions and policies’ appears to allow the Court to take into account the global impacts of the project. But whilst the FoE argue that limiting the consideration of GHG emissions to the extraction of the coal would be inconsistent

with this principle of ESD, it is my view that the Court can only be concerned with the global impacts of the ‘mining activities’ which are the subject of the environmental authority application before the Court — that is, the physical activities of winning and extracting the coal that may be authorised under the MRA. … Stopping the project will not result in any, or any substantial, difference in the levels of GHGs in the atmosphere. If the project proceeds, the evidence indicates that it will have a comparatively minor adverse impact on the environment in terms of its GHG emissions. In the circumstances, I do not consider that the climate change issue outweighs all other issues so as to justify a recommendation under the EPA that the EA be refused.

And in Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (No 4) [2014] QLC 12 the court remarked (at [231]): I can sympathise with the position of the objectors who see GHG emissions rising, and the likely adverse climate change consequences that will flow should nothing be done to alter the course that the world is heading down. I have no reason to doubt the eminent expert evidence that was presented in this case to that effect. However, I must on the evidence of this case determine that it is the demand for coal-fired electricity, and not the supply of coal from coal mines, which is at the heart of the problem.

17.57 Development in the coastal zone202 might also be expected to attract a fair amount of scrutiny and, increasingly, be refused both by consent authorities and, on appeal, by courts and tribunals;203 or at least required either to relocate to areas [page 753] less prone to tidal inundation204 or be required to incorporate measures to deal with potential impacts.205 A precautionary approach to development in the coastal zone is increasingly likely to be applied, and proposals that cannot address potential impacts with sufficient clarity and certainty are likely to be rejected. For example, in Victoria, the Victorian Civil and Administrative Tribunal (VCAT) continues to endorse a policy of requiring preparation of a coastal hazard vulnerability assessment, in appropriate cases, even for smallscale development, where the costs might be quite prohibitive. State policy makes it quite clear that the wider risks and consequences for the community involved in such proposals are the primary consideration justifying the imposition of such a condition.206 In Taip v East Gippsland Shire Council [2010] VCAT 1222, the tribunal also refused permission for the construction of four dwellings that would be subject to risks from potential impacts of climate change by sea level rise. The proposal failed to satisfy the purposes of planning for intergenerational equity, sustainable, fair and socially responsible development consistent with the objectives of the Planning and Environment Act 1987 (Vic), and the state planning policy framework and Victorian Coastal Strategy 2008.

The construction of wind farms as a source of renewable energy is, to some, a two-edged sword. While undoubtedly a source of ‘green’ energy, wind farms may also have unsightly (although this is a matter of subjective opinion) impacts on areas of natural beauty, and threaten to create noise and other operational impacts, such as deaths of birds colliding with the rotors; as well as economic impacts, such as discouraging tourism207 and affecting agricultural pursuits;208 and possible health effects. In Cherry Tree Wind Farm Pty Ltd v Mitchell Shire Council (Red dot) [2013] VCAT 1939 the tribunal, however, found that there is no published scientific evidence to directly link wind turbines with adverse health effects. Similarly, in Tru Energy Renewable Developments Pty Ltd v Regional Council of Goyder & Ors [2014] SAERDC 48, the court was critical of the respondent’s health experts, holding that the experts’ testimony did not contain any evidence of a causal link between the operation of wind turbines and the potential health problems that were alleged by the respondents. The court also held that, while [page 754] objections to a wind farm’s visual impact might be understandable in a rural setting, nevertheless wind farms were a desirable form of development and the benefits outweighed the negative visual impacts. Predicted noise emissions from the turbines were expected to be within levels established in a 2009 South Australian Guideline. On the other hand, of course, such developments are likely also to bring other economic benefits. Acknowledging the tensions that are likely to be generated by wind farm proposals, the Environment Protection and Heritage Council has issued draft guidelines for national wind farm development209 that ‘aim to give greater transparency and consistency to this process by clearly outlining the key principles and issues for consideration by the relevant authority’210 when dealing with applications for development consent. In general, it may be said that the tendency in decision-making on wind farms has determined that the perceived impacts can be overcome (except perhaps for visual impacts that rely on ‘the eye of the beholder’211) by appropriate operating conditions;212 if necessary they can even be overcome by allowing local disgruntled neighbours to call for purchase of their property by the operator if nuisances become severe.213 Nevertheless, proposals for development of sources of renewable energy should not automatically demand approval, no matter where they are sited; they still need to be judged on their own merits, and in appropriate cases development consent may be

refused.214 Agricultural land and the availability of water resources are forecast to be impacted by changing rainfall patterns due to climate change, so preservation of prime agricultural land might also be seen as a response to considerations of intergenerational equity.215 Impacts of climate change on available water resources might also be expected to influence decisions on proposed development that might reveal significant potential to impact adversely on available water supplies.216 For example, uncertainty about the effects of climate change on the availability of water supply convinced VCAT to refuse permission to extract groundwater for agricultural irrigation in Alanvale Pty Ltd v Southern Rural Water [2010] VCAT 480. [page 755] Applying the precautionary principle in the context of climate variability and available water resources, the tribunal concluded that the licence application fell outside the sustainability objectives of the Water Act 1989 (Vic).

Climate change in criminal prosecutions 17.58 Although it is not unlawful per se to release greenhouse gases into the atmosphere, courts may recognise that unlawful behaviour, such as clearance of native vegetation without a permit, may in fact result in releases of greenhouse gases and this may be considered a factor in contributing to environmental harm.217

Conclusion 17.59 Litigation about the impacts of climate change will undoubtedly show up in all manner of ways in the years ahead. Courts and tribunals will, however, be wary about the prospect of ‘climate change’ being used as a template for opposition to all and any kind of development. While a precautionary approach to decision-making that might involve climateinduced impacts is undoubtedly appropriate, what this means in practice is that decision-makers should go about their tasks with an eye to showing, if challenged, that the issue has been considered in decision-making and potential impacts have been addressed. In practice, one way to do this is to require as an integral part of the development assessment process, a comprehensive greenhouse gas assessment, compiled in accordance with approved methodology,218 and to include as conditions of consent emissions reduction and offset measures, and

conditions for monitoring and adaptive management.219 Where relevant, proposals should also integrate sustainable transport options.220 Courts and tribunals are not policymakers; however, in the years ahead they are going to influence quite significantly legislators and policymakers by the approaches they will take to litigation involving climate-related claims.

1.

The role of the Intergovernmental Panel on Climate Change (IPCC) is to assess the scientific evidence that underpins predictions about, and assesses causes of, climate change. The latest (fifth, 2014) Assessment Report may be accessed at . The report predicts widespread increases in extreme weather patterns, population displacement and impacts on food security. Mitigation and adaptation can help reduce impacts and enable societies and the natural environment to adapt to climate change. Mitigation options are available in every major sector. Mitigation can be more cost-effective, if using an integrated approach that combines measures to reduce energy use and the green-house gas intensity of end-use sectors, decarbonise energy supply, reduce net emissions and enhance carbon sinks in land-based sectors. On mitigation see the IPCC Report (2014) available at .

2.

And see McGrath, ‘Setting Climate Change Targets to Protect the Great Barrier Reef’ (2007) 24 EPLJ 182.

3.

IPCC, ‘Climate Change 2007: Impacts, Adaptation and Vulnerability’, Ch 11. To access the report, go to .

4.

Garnaut Climate Change Review, Final Review, September 2008, p xvii. Available at .

5.

See Shearing, ‘Raising the Boardroom Temperature? Climate Change and Shareholder Activism in Australia’ (2012) 29 EPLJ 479. See also Bowman, ‘The Role of the Banking Industry in Facilitating Climate Change Mitigation and the Transition to a Low-carbon Global Economy’ (2010) 27 EPLJ 448.

6.

‘The Economics of Climate Change’, accessible at .

7.

Accessible at ; and see Macintosh, ‘The Garnaut Review’s Targets and Trajectories: A Critique’ (2009) 26 EPLJ 88.

8.

Listed in the Protocol Annex A.

9.

See Protocol Annex A.

10. Reductions in land clearing have helped Australia to offset emissions, but this of course is not likely to contribute to a continuing offset reduction. Australia’s National Inventory Report 2013, which contains national greenhouse gas emission estimates for 1990–2013, is available at . 11. UK Renewable Energy Strategy 2009, p 26. 12. And see Lyster, ‘Common but Differentiated? Australia’s Response to Global Climate Change’ (2004) 16 Georgetown International Law Review 561. 13. The rate of build-up of carbon dioxide in the atmosphere can be reduced by accumulating carbon in vegetation and soils. Any process that removes a greenhouse gas from the atmosphere is referred to as a ‘sink’. Australia’s submission may be viewed at . 14. These may be counted in the first commitment period 2008–12 so long as they have begun since 1990.

15. See Lyster, ‘The New Frontier of Climate Law: Reducing Emissions from Deforestation (and Degradation)’ (2009) 26 EPLJ 417. 16. See . 17. The Report is available at . And see Hill ‘UN climate change conference in Durban: Outcomes and future of the Kyoto Protocol’ (2011) 7 MqJICEL 92. 18. In November 2014, the United States and China both announced significant climate change commitments. The United States and China account for one-third of global greenhouse gas emissions The United States introduced a new target to cut greenhouse gas emissions to 26–28 per cent of 2005 levels by 2025. China has announced plans to peak CO2 emissions by 2030 and to increase the share of non-fossil fuel energy to 20 per cent by 2030. 19. For information on the Australian National Registry for Emissions Units, go to . 20. See . 21. Though climate law is widely predicted to become the ‘new frontier’ of environmental law. See generally Bonyhady and Christoff (eds), Climate Law in Australia, Federation Press, Sydney, 2007. 22. See Bubna-Litic, ‘Carbon Pricing and Renewable Energy Innovation: A Comparison of Australian, British and Canadian Carbon Pricing Policies’ (2014) 31 EPLJ 368. 23. See Sullivan, ‘Greenhouse Challenge Plus: A New Departure or More of the Same?’ (2006) 23 EPLJ 60. 24. National Greenhouse Gas Inventory 2006. Information on the inventory and quarterly updates are available at . 25. Climate Change and Greenhouse Emissions Reduction Act 2007 (SA) s 5 (now repealed). 26. Related targets included increasing the proportion of renewable energy generated and consumed by 20 per cent by 2014: s 5(2). 27. The Australian Capital Territory parliament legislated for a principal target of zero net emissions by 2060 and a number of intermediate targets, as well as renewable energy and energy efficiency targets. The legislation also requires the minister, ‘to the greatest extent practicable’ to apply the principle of intergenerational equity in the exercise of the minister’s functions: Climate Change and Greenhouse Gas Reduction Act 2010 (ACT). The Climate Change Act 2010 (Vic) established a statewide emissions target for greenhouse gases of 20 per cent below year 2000 emissions by 2020 (since repealed). It also creates new forms of proprietary rights for forestry and soil carbon sequestration, and requires relevant decision-makers to have regard to the impacts of climate change when engaged in decision-making. There are also requirements on corporations that contribute to greenhouse gas emissions to meet certain standards and targets. 28. And see Leary, ‘From Bali to Poznan: An Assessment of Australia’s Response to Climate Change in 2008’ (2009) 26 EPLJ 190; McGrath, ‘Australia’s Draft Climate Laws’ (2009) 26 EPLJ 267. 29. The 15th Conference of the Parties to the UN Convention on Climate Change; information currently available at . 30. And see, for example, Bubna-Litic, ‘Climate Change and Corporate Social Responsibility: The Intersection of Corporate and Environmental Law’ (2007) 24 EPLJ 253; Lyster, ‘Chasing Down the Climate Change Footprint of the Private and Public Sectors: Forces Converge’ (2007) 24 EPLJ 281 and 450; Livingstone, ‘Who Will Be Liable for Australia’s Solution to Pollution? An Analysis of the Scope of Businesses’ Liability under the Carbon Pollution Reduction Scheme’ (2009) 26 EPLJ 292; Deane, ‘A New Legal Avenue for Pricing GHG Emissions? To Trade or to Tax?’ (2011) 28 EPLJ 111; Zeller, ‘Carbon Reduction Schemes and the Energy Sector: A Bottom up Approach?’ (2011) 28 EPLJ 332. The CPRS did not directly engage transport; on this see Cordes-Holland, ‘Climate

Change, Light-duty Motor Vehicles and the Stern Review: Environmental Law and Policy Measures to Reduce Passenger CO2 Emissions’ (2007) 24 EPLJ 382. 31. Available at . The regulator for the Fund is the Clean Energy Regulator: . 32. See . 33. For a project to be registered it must meet all eligibility criteria and involve activities that achieve emissions reductions consistent with an approved method; Carbon Credits (Carbon Farming Initiative) Act 2011(Cth) s 27. Registered projects are placed on a public register by the Clean Energy Regulator; Carbon Credits (Carbon Farming Initiative) Act 2011 s 167. 34. The latest auction (November 2015) reveals that the average price per tonne of abatement is currently $12.25, down from April 2015 when it was $13.95; see . 35. Available at . 36. Carbon Credits (Carbon Farming Initiative) Act 2011 s 167. 37. Details about what Australia is doing to meet its emissions commitments is contained in Australia’s second biennial report (2015). Available at . 38. See . 39. Section 13. 40. Sections 12–18B. 41. Sections 19–22XA. 42. For the latest (2015) version go to . 43. Sections 29–48. 44. As set out in the schedule to the Criminal Code Act 1995 (Cth). 45. National Greenhouse and Energy Reporting Act 2007 (Cth) ss 73–75A. 46. See Macintosh and Waugh, ‘An Introduction to the Carbon Farming Initiative: Key Principles and Concepts’ (2012) 29 EPLJ 439; French ‘“Greenbacks” Versus Green Credits: Has the Carbon Farming Initiative Got the Balance Right?’ (2013) 30 EPLJ 434. 47. And see O’Donnell, ‘Native Title — A Right to Burn and Fire the Land? Savanna Burning and the Carbon Farming Initiative in Northern Australia’ (2013) 30 EPLJ 220. 48. Section 11. 49. Sections 16–18; Pt 3. 50. Section 54. 51. Section 53. 52. Section 27. Before a project can be declared an eligible offsets project the ‘project proponent’ must hold a carbon sequestration right for the area, conferred under state law. See Conveyancing Act 1919 (NSW) s 87A; Forestry Act 1959 (Qld) ss 61K and 61M; Land Title Act 1994 (Qld) s 97N; Forest Property Act 2000 (SA) ss 3A and 5; Forestry Rights Registration Act 1990 (Tas) s 3; Climate Change Act 2010 (Vic) ss 3A–3D (definitions), Pt 4; Carbon Rights Act 2003 (WA) s 8(1). 53. See Chan, ‘Eligible Carbon Claims in the Voluntary Carbon Market’ (2011) 28 EPLJ 9. Voluntarily offsetting carbon emissions may be seen as a green marketing tool by businesses, enticing consumers to prefer their products over others that do not offset carbon generation.

54. Part 9. The Carbon Credits (Carbon Farming Initiative) (Sequestering Carbon in Soils in Grazing Systems) Methodology Determination 2014 sets out rules for implementing and monitoring projects that sequester carbon in grazing land soils. The methodology obliges those seeking to create carbon credits to explain the management actions they will take to store carbon in soils; and allows existing actions to generate credits, provided new actions are also involved. 55. Section 133. 56. Carbon maintenance obligations under sequestration offsets may be enforced by the regulator: ss 96–104. 57. Sections 53 and 54. 58. Section 56. 59. Section 167. 60. Section 16. 61. Sections 89–91; ‘significant reversal’ is defined in the Carbon Credits (Carbon Farming Initiative) Rule 2015 (Cth) rules 81 and 82. 62. Sections 179 and 180. 63. See Pt 8. 64. Section 97(8). 65. And see Tranter, ‘Two Towers: A Comparison of the Regulatory Regimes Which Affect New Electricity Transmission Lines and Wind Farms in Queensland’ (2006) 23 EPLJ 351; Lyster, ‘The Australian Carbon Pollution Reduction Scheme: What Role for Complementary Emission Reduction Regulatory Measures?’ (2008) 14(2) UNSWLJ 31. 66. See Blustein, ‘Towards Low Emissions in the Electricity Generation Sector: Creating a Coherent Legal Model for Australia’ (2011) 28 EPLJ 77. 67. See 17.58 and following. And see also Caripis and Kallies, ‘Planning Away Victoria’s Renewable Energy Future? Resolving the Tension between the Local and Global in Windfarm Developments’ (2012) 29 EPLJ 415. 68. See . 69. See . 70. See further . 71. Section 17C. 72. These are set out in s 17 of the Act and Regulations regs 6–10. Excluded is native forest biomass, important for biodiversity conservation. 73. Section 18; Renewable Energy (Electricity) Regulations 2001 (Cth) Sch 3. 74. Defined in the Regulations reg 3(2). See also Bradbrook, ‘Solar Access Law: 30 Years on’ (2010) 27 EPLJ 5. 75. Sections 21–23F; Regulations regs 19–21C, Sch 4. 76. Sections 31 and 35. 77. The RPP is set out in the Renewable Energy (Electricity) Regulations 2001 (Cth) reg 23. It must be based on required additional GWh (gigawatt hours) for each year, as stated in s 40. This of course reflects the target, and may need to be adjusted from year to year to take account of what is happening in the market. For example, the required additional GWh for 2009 is 8100: s 40. The RPP for 2009 is 3.64 per cent. An entity that purchases 100,000 MWh of electricity will need to acquire and surrender 100,000 × 3.64, or 3640 certificates. If the RPP is not set by the Regulations, there is a default mechanism for calculating the RPP set out in s 39(2) of the Act.

78. Part 4. 79. Section 27. 80. Sections 28A, 29, 44 and 95. 81. Sections 35–53A. 82. Sections 38A–38C and 46A–46F. And see Anderson, ‘Carbon Pollution Reduction Scheme: Impact on the Mining and Energy Industries’ (2008) 14(2) UNSWLJ 61. 83. Sections 20B and 23AB. 84. Part 2A. 85. The small-scale technology shortfall charge is imposed by the Renewable Energy (Electricity) (Small-scale Technology Shortfall Charge) Act 2010 (Cth). 86. See s 31. 87. See s 34A. 88. See also Electricity Act 1996 (SA) ss 36C–36E. 89. See . 90. Australia’s Electricity Sector: Ageing, Inefficient and Unprepared. Available at . 91. Section 10. 92. Section 20. 93. Sections 21–23. 94. Sections 15–19. 95. Section 18. 96. Sections 288–317. 97. See, for example, . 98. See . For discussion on one aspect of this scheme see Gialamas, ‘Contracting for Energy Efficiency under the VEET Scheme’. Available at . 99. See . 100. Energy Efficiency (Cost of Living) Improvement Act 2012 ss 7–9. 101. Energy Efficiency (Cost of Living) Improvement Act 2012 s 11. 102. Energy Efficiency (Cost of Living) Improvement Act 2012 Pt 3. 103. Building Act 2004 (ACT) s 139C; and see Building (General) Regulation 2008 (ACT) reg 44AA. 104. And see Kearney, ‘Market-based Policies for Demand Side Energy Efficiency: A Comparison of the New South Wales Greenhouse Gas Abatement Scheme and the United Kingdom’s Energy Efficiency Commitment’ (2006) 23 EPLJ 113. 105. Section 34B. 106. Sections 34Q–34V. 107. Section 34S. 108. Section 34V(3). 109. And see Prentice, ‘Energy Efficiency or Energy Wasted? The Record of Australian and Swedish Law to Improve Energy Efficiency in the Buildings Sector’ (2013) 30 EPLJ 236.

110. SEPP (Building Sustainability index: BASIX) 2004 (NSW); and see Thorpe and Graham, ‘Green Buildings — Are Codes, Standards and Targets Sufficient Drivers of Sustainability in New South Wales?’ (2009) 26 EPLJ 486. 111. ‘BASIX affected development’: see Environmental Planning and Assessment Regulation 2000 (NSW) reg 3. 112. Environmental Planning and Assessment Regulation 2000 (NSW) reg 164A, Sch 1. 113. See Swayne and Phillips, ‘Legal Liability for Carbon Capture and Storage in Australia: Where Should the Losses Fall?’ (2012) 29 EPLJ 189. The authors conclude (at 215) that there is ‘significant uncertainty surrounding the ownership of the sequestered carbon dioxide and pore space, particularly during injection and prior to site closure … (and) associated with the transfer of liability to the State’. 114. See Dwyer, ‘Emerging Legislative Regimes for Regulating Carbon Capture and Storage Activities in Australia: To What Extent Do They Facilitate Access to Procedural Justice?’ (2015) 32 EPLJ 3. 115. See Warburton et al, ‘Geosequestration Law in Australia’ in Bonyhady and Christoff (eds), Climate Law in Australia, Federation Press, Sydney, 2007. And on the possibility of ‘fertilising’ the oceans to achieve carbon sequestration, see Rayfuse, ‘Drowning Our Sorrows to Secure a Carbon Free Future? Some International Legal Considerations Relating to Sequestering Carbon by Fertilising the Oceans’ (2008) 14(2) UNSWLJ 54. 116. Section 7. 117. The Offshore Constitutional Settlement (see 5.29) gives control of coastal waters within the threemile limit to the states. 118. For detailed commentary on state onshore regimes see Dwyer, ‘Emerging Legislative Regimes for Regulating Carbon Capture and Storage Activities in Australia: To What Extent Do They Facilitate Access to Procedural Justice?’ (2015) 32 EPLJ 3, 19. 119. Greenhouse Gas Storage Act 2009 (Qld); Offshore Petroleum and Greenhouse Gas Storage Act 2010 (Vic) (which virtually mirrors the Commonwealth Act); Greenhouse Gas Geological Sequestration Act 2008 (Vic); Geothermal Energy Act 2010 (Qld); Petroleum and Geothermal Energy Act 2000 (SA). The Barrow Island Act 2003 (WA) facilitates the Gorgon project. Other states and territories have no specific CCS legislation. 120. See Thorpe, ‘Too Little, Too Soon? An Assessment of Australian Carbon Capture and Storage Legislation against the New Standards Set for the Clean Development Mechanism’ (2012) 3 Climate Law 139. 121. Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) ss 402–410. 122. Sections 422–425. 123. Section 98. 124. Section 135. 125. Sections 318–354. 126. Sections 355–401. 127. Sections 411–421. 128. Section 21. 129. Sections 312–315. 130. Sections 192–208. 131. See ss 28, 29, 370 and 392; and see Edwards, ‘Interactions between Petroleum Operations and Carbon Capture and Storage Operations in Australian Offshore Waters’ (2009) 26 EPLJ 152.

132. Sections 376–378. 133. Section 464. 134. Sections 379–382. 135. Section 453. 136. Regulations 3 and 10A. 137. See Pt 2. 138. Regulations 6–8. 139. See Pt 6.9. 140. Section 602J and Sch 2A. 141. Schedule 2A, ss 10 and 11. 142. Schedule 2A, s 13. 143. Sections 585–598. 144. Sections 571 and 571A. 145. Sections 11C and 11D. 146. Sections 11A and 11B. 147. See Dwyer, ‘Emerging Legislative Regimes for Regulating Carbon Capture and Storage Activities in Australia: To What Extent Do They Facilitate Access to Procedural Justice?’ (2015) 32 EPLJ 3, 8–9. 148. See . Interestingly this project was commenced in anticipation of a ‘carbon tax’. 149. And see Ghanem and Ruddock, ‘Are New South Wales’ Planning Laws Climate-change Ready?’ (2011) 28 EPLJ 17. 150. For example, Coastal Protection and Management Act 1995 (Qld); ‘Queensland Coastal Plan’, Queensland Government, 2012. And see Bell, ‘Planning for Climate Change and Sea Level Rise — Queensland’s New Coastal Plan’ (2012) 29 EPLJ 61. See also Victoria’s Coastal Strategy and Ministerial Direction No 13 and General Practice Note, ‘Managing Coastal Hazards and the Coastal Impacts of Climate Change’. See also De Wit and Webb, ‘Planning for Coastal Climate Change in Victoria’ (2010) 27 EPLJ 23. In New South Wales, see, ‘NSW Coastal Planning Guideline: Adapting to Sea Level Rise’, New South Wales Government, 2010. In Western Australia, the State Planning Policy 2.6 State Coastal Planning is undergoing review; and see also ‘Sea Level Rise in Western Australia; Application to Coastal Planning’, Western Australia Government, 2010; England ‘Too Much Too Soon? On the Rise and Fall of Australia’s Coastal Climate Change Law’ (2013) 30 EPLJ 390; Foerster et al, ‘Transferable Lessons for Climate Change Adaptation Planning? Managing Bushfire and Coastal Climate Hazards in Australia’ (2013) 30 EPLJ 469. And for coastal planning and protection generally, see 18.49 and following. 151. See Wawryk, ‘Legislating for Offshore Wind Energy in South Australia’ (2011) 28 EPLJ 265; Newman, ‘Creating the Power for Renewal: Evaluation of New South Wales’ Renewable Energy Planning Law Changes and Suggestions for Further Reform’ (2012) 29 EPLJ 498. 152. See, for example, ‘Government Action Plan for the Climate Change Adaptation Framework in South Australia’, South Australia Government, 2012; ‘Adapting to Climate Change in Tasmania Issues Paper’, Government of Tasmania, 2012. 153. See Christensen et al, ‘Regulating Greenhouse Gas Emissions from Coal Mining Activities in the Context of Climate Change’ (2011) 28 EPLJ 381. 154. And see Osofsky et al, ‘The Role of Litigation in Multilevel Climate Change Governance: Possibilities for a Lower Carbon Future?’ (2013) 30 EPLJ 303.

155. Available at . 156. Per Dowsett J in Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage [2006] FCA 736 at [72]. 157. See generally Peel, ‘The Role of Climate Change Litigation in Australia’s Response to Global Warming’ (2007) 24 EPLJ 90; Preston, ‘Climate Change Litigation’ (2009) 26 EPLJ 169. 158. Compare, for example, Greenpeace Australia Ltd v Redbank Power Company Pty Ltd [1994] NSWLEC 178 and Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59. 159. Litigation threatens of course to erupt not just at a domestic level but in international fora: see, for example, Horn, ‘Is Litigation an Effective Weapon for Pacific Island Nations in the War Against Climate Change?’ (2009) 12(1) APJEL 169. 160. See Preston, ‘Climate Change Litigation in the Land and Environment Court of New South Wales and Other Courts’, LEC NSW, 20 August 2009. Available on the LEC website at . 161. The US EPA has also classified carbon as a health hazard, paving the way for greater regulatory action to limit emissions (announced on the eve of COP 15, Copenhagen, December 2009). And see Fisher, ‘The Statutory Relevance of Greenhouse Gas Emissions in Environmental Regulation’ (2007) 24 EPLJ 210. 162. Dictionary. 163. Protection of the Environment Operations Act 1997 (NSW) Dictionary. 164. See Fisher, ‘The Response of the United States Supreme Court to Global Warming: Injury in Fact or Conjecture’ (2007) 24 EPLJ 241; Baird, ‘Arresting Climate Change through Incremental Steps: Massachusetts v Environmental Protection Agency’ (2007) 24 EPLJ 245. 165. Article 3.4. 166. And see Hepburn, ‘Carbon Rights as New Property: The Benefits of Statutory Verification’ (2009) 39 Syd L Rev 271; Parry, ‘A Property Law Perspective on the Current Australian Carbon Sequestration Laws and the Green Paper Model’ (2010) 36 Mon LR 321; Macguire and Phillips, ‘The Role of Property in Environmental Management: An Examination of Environmental Markets’ (2011) 28 EPLJ 215; Cuskelly, ‘Legal Frameworks for Regulating Biosequestration in Australia’ (2011) 28 EPLJ 348. 167. See Swayne and Phillips, ‘Legal Liability for Carbon Capture and Storage in Australia: Where Should the Losses Fall?’ (2012) 29 EPLJ 189. 168. See note 85 above. 169. Forestry Act 1959 (Qld) s 61K; Climate Change Act 2010 (Vic) Pt 4 (soil carbon right means an exclusive right to the economic benefits of carbon sequestered underground, excluding carbon stored within plants: s 24). 170. See Chapter 3. 171. And see Durrant, ‘Legal Issues in Biosequestration: Carbon Sinks, Carbon Rights and Carbon Trading’ (2008) 14(2) UNSWLJ 47. 172. See, for example, Macarthur Wind Farm Pty Ltd v Moyne Shire Council [2006] VCAT 1423. 173. See Spencer v Commonwealth [2008] FCA 1256; and for commentary on this case, see 5.35. 174. And see Hunter and Salzman, ‘Negligence in the Air: The Duty of Care in Climate Change Litigation’ (2007) 155 UPennLR 1741. 175. See Lipman and Stokes, ‘Shifting Sands: The Implications of Climate Change and a Changing

Coastline for Private Interests and Public Authorities in Relation to Waterfront Land’ (2003) 20 EPLJ 406; McDonald, ‘The Adaptation Imperative: Managing the Legal Risks of Climate Change Impacts’ in Bonyhady and Christoff, Climate Law in Australia, Federation Press, Sydney, 2007, p 124; McDonald, ‘A Risky Climate for Decision-making: The Liability of Development Authorities for Climate Change Impacts’ (2007) 24 EPLJ 405; Environmental Defender’s Office (NSW), Coastal Councils and Planning for Climate Change, Sydney Coastal Councils Group, 2008. 176. See, for example, State Coastal Planning Policy 2.6 (WA) Sch 1 D.3. 177. It has been suggested that landowners have a common law right to protect their land from the sea; see Coleman, ‘Coastal Protection and Climate Change’ (2010) 84 ALJ 421; though for a contrary view see Corkhill, ‘Claimed Property Right Does Not Hold Water’ (2013) 87 ALJ 49. 178. Civil Liability Act 2002 (NSW) s 42; and see also 3.38. 179. Local Government Act 1993 (NSW) s 733; and for further discussion on exemption clauses, see 3.40 and following. 180. Local Government Act 1993 (NSW) s 733(3)(f3–f6). 181. US Court of Appeals for the Second Circuit 21/09/2009. 182. US Court of Appeals for the Fifth Circuit 16/10/2009. 183. State of North Carolina v Tennessee Valley Authority 615 F3d 291 (4th Cir 2010). 184. See Crossley, ‘Private Nuisance: An Ill Wind in Wind Energy Projects’ (2011) 19(2) Torts LJ 135. 185. See Swayne and Phillips, ‘Legal Liability for Carbon Capture and Storage in Australia: Where Should the Losses Fall?’ (2012) 29 EPLJ 189. 186. For example, Climate Change Act 2010 (Vic) s 14, sch 1. On the interpretation of this obligation, see Dual Gas Pty Ltd v Environment Protection Authority [2012] VCAT 308 at [243] (tribunal should have regard to s 14 in considering the objectors’ grounds of review, but within the limits of those grounds. Section 14 does not create a separate broader ground of objection). See also State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW) cl 14. 187. Gray v Minister for Planning [2006] NSWLEC 720; Alliance to Save Hinchinbrook v Environmental Protection Agency (2006) 145 LGERA 32 (Qld SC); and see England, ‘Doing the Groundwork: State, Local and Judicial Contributions to Climate Change Law in Australia’ (2008) 25 EPLJ 360. 188. Gray v Minister for Planning [2006] NSWLEC 720; Drake-Brockman v Minister for Planning [2007] NSWLEC 490; Minister for Planning v Walker [2008] NSWCA 22; Aldous v Greater Taree City Council [2009] NSWLEC 17. 189. Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage [2006] FCA 736; and see Ruddock, ‘The Bowen Basin Coal Mines Case: Climate Law in the Federal Court’ in Bonyhady and Christoff (eds), Climate Law in Australia, Federation Press, Sydney, 2007, p 173. 190. For example, Minister for Planning v Walker [2008] NSWCA 2; and see Ghanem et al, ‘Are Our Laws Responding to the Challenges Posed to Our Coasts by Climate Change?’ (2008) 14(2) UNSWLJ 40; de Wit and Webb, ‘Planning for Coastal Climate Change in Victoria’ (2010) 27 EPLJ 23. 191. Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2008] SASC 57. 192. Australian Conservation Foundation v Minister for Planning [2004] VCAT 2029; Wildlife Preservation Society of Queensland v Minister for the Environment and Heritage [2006] FCA 736; Gray v Minister for Planning [2006] NSWLEC 720; Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd [2007] QCA 338. And see Berger, ‘Hazelwood: A New Lease on Life for a Greenhouse Dinosaur’ in Bonyhady and Christoff (eds), Climate Law in Australia, Federation

Press, Sydney, 2007, p 161; Farrier, ‘The Limits of Judicial Review: Anvil Hill in the Land and Environment Court’ in Bonyhady and Christoff (eds), Climate Law in Australia, above, p 189; McGrath, ‘The Xstrata Case: Phyrric Victory or Harbinger?’ in Bonyhady and Christoff (eds), Climate Law in Australia, above, p 214; McGrath, ‘Regulating Greenhouse Gas Emissions from Australian Coal Mines’ (2008) 25 EPLJ 240. 193. Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217; Hunter Community Environment Centre Inc v Minister for Planning [2012] NSWLEC 195; Dual Gas Pty Ltd v Environment Protection Authority [2012] VCAT 308. 194. For example, Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217. 195. Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd [2007] QCA 338. 196. Thirteenth Beach Coast Watch Inc v Environment Protection Authority [2009] VSC 53. 197. For example, State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW) cl 14; and see Hunter Community Environment Centre Inc v Minister for Planning [2012] NSWLEC 195; Barrington — Gloucester — Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197. 198. See, for example, Prest, ‘The Bald Hills Wind Farm Debacle’ in Bonyhady and Christoff (eds), Climate Law in Australia, Federation Press, Sydney, 2007, p 230; Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59; Perry v Hepburn Shire Council [2007] VCAT 1309; Teoh v Hunters Hill Council [2008] NSWLEC 263 (solar access for energy generation); Jones, ‘Global or Local Interests? The Significance of the Taralga Wind Farm Case’ in Bonyhady and Christoff (eds), Climate Law in Australia, above, p 262. 199. See, for example, Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48 at [464]. 200. Re Xstrata Coal Queensland Pty Ltd [2007] QLRT 33. 201. Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221. In this case the court held that a condition requiring an offset for Scope 1 (direct) emissions would be legally valid; see [101]. 202. See, for example, State Coastal Management Plan (Qld) s 2.2 (coast to be managed for ‘natural fluctuations’ including those from climate change); Victorian Planning Provision cl 15.08-1 (planning for sea rise of not less than 0.8 metres by the year 2100); Tauschke v East Gippsland Shire Council [2009] VCAT 2231 (since the introduction of cl 15.08 there is a much higher planning imperative to address potential coastal hazard and impacts of climate change). 203. Parkes v Byron Shire Council [2004] NSWLEC 92; Gippsland Coastal Board v South Gippsland Shire Council (No 2) [2008] VCAT 1545; Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2008] SASC 57, affirming the decision of the Environment, Resources and Development Court to refuse such a development; Rainbow Shores P/L v Gympie Regional Council [2013] QPEC 26. And see Watson ‘Practical Precautions, Reasonable Responses: How South Australia’s Planning Regime Adapts to the Coastal Impacts of Climate Change’ (2015) 32 EPLJ 256. 204. Charles and Howard Pty Ltd v Redland Shire Council (2007) 159 LGERA 349. 205. Johnson Trading Industries Pty Ltd v Port Pirie Regional Council [2007] SAERDC 42 (raising floor levels). 206. See Department of Planning and Community Development (Vic), Managing Coastal Hazards and the Coastal Impacts of Climate Change General Practice Note, December 2008; and see Myers v South Gippsland Shire Council [2009] VCAT 1022 (coastal hazard vulnerability assessment required before decision on coastal subdivision); Owen v Casey City Council [2009] VCAT 1946; Myers v South Gippsland Shire Council (No 2) [2009] VCAT 2414 (precautionary approach

required; application rejected); Ronchi v Wellington Shire Council [2009] VCAT 1206; Printz v Glenelg Shire Council [2010] VCAT 1975. 207. For example, The Sisters Wind Farm Pty Ltd v Moyne Shire Council [2010] VCAT 719. 208. For example, Macarthur Wind Farm Pty Ltd v Moyne Shire Council [2006] VCAT 1423; Acciona Energy Oceania Pty Ltd v Corangamite Shire Council [2008] VCAT 1617. 209. See ‘National Wind Farm Development Guidelines — Draft’, Environment Protection and Heritage Council, 2010. 210. Guidelines at 1.1. 211. In Paltridge v District Council of Grant [2011] SAERDC 23, while other issues could be overcome, visual amenity remained the sole ground for refusal of the project. 212. For example, Thackeray v Shire of South Gippsland [2001] VCAT 739; Macarthur Wind Farm Pty Ltd v Moyne Shire Council [2006] VCAT 1423; Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59; Quinn v Regional Council of Goyder [2010] SAERDC 63; King v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Ltd v Minister for Planning [2010] NSWLEC 1102. 213. Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59. 214. For example, The Sisters Wind Farm Pty Ltd v Moyne Shire Council [2010] VCAT 719; Paltridge v District Council of Grant [2011] SAERDC 23 (impacts on visual amenity to an unacceptable degree). 215. Hub Action Group Inc v Minister for Planning [2008] NSWLEC 116. And on legislative initiatives to protect prime agricultural land, see further 9.65. 216. For example, Bojanich and Western Australian Planning Commission [2006] WASAT 315; Lindner & Whetstone v Regional Council of Goyder (No 2) [2006] SAERDC 67. 217. See, for example, Chief Executive of the Office of Environment and Heritage v Humphries [2013] NSWLEC 213 at [28]. 218. See, for example, Hunter Community Environment Centre Inc v Minister for Planning [2012] NSWLEC 195. 219. See, for example, Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217; Hunter Community Environment Centre Inc v Minister for Planning [2012] NSWLEC 195. 220. For example, the objectives of the Transport Integration Act 2010 (Vic) are that the transport system should actively contribute to environmental sustainability by, inter alia, promoting forms of transport that have the least impacts on the natural environment and reduce transport-related greenhouses gases: s 10. See also Frydman v Port Phillip City Council [2012] VCAT 1838.

[page 757]

Chapter 18 Management of Natural Resources Introduction 18.1 At common law, a landowner was under no obligation to manage natural resources in a sustainable manner. So long as the exploitation of natural resources on private land did not unreasonably interfere with neighbours, landowners were free to exploit their resources without interference from the law. ‘Public’ resources such as sea fisheries were also open to broad-scale exploitation without restriction. The need for government to take control over management of natural resources to prevent unsustainable harvesting and promote recovery was explained in Chapter 3. 18.2 Once government had vested control of natural resources in state agencies, then it had to think about longer term planning to ensure the sustainable use and management of exploitable resources. Strategic planning for the use of natural resources is discussed in Chapter 9. It was stressed there that policy and legislation is beginning to understand the need for integrated management of resources, but the fact is that individual resources are still managed largely by reference to state-based resource-specific legislation. The only truly integrated national legislative scheme for natural resource management is the Murray–Darling Agreement.1 18.3 Consideration must also be given, of course, to those who earn a living from the utilisation of natural resources. Large amounts of capital may be needed to invest in mining, fisheries and forest operations, or in rural businesses that depend heavily on a regular water supply. Security may be given to such operators by: providing that their ‘licences’ to exploit public resources will in fact be regarded as quasi property rights, in the sense that they will be able to be transferred and may give rights to ‘compensation’ in the event that allocations of resources need to be scaled back or withdrawn;2 and

providing exclusive, or limited, access to the resources in a particular area; for example, forestry concession areas, mining and petroleum leases and limited access fisheries. 18.4 To discuss the details of how natural resource allocations are informed, planned, managed and enforced would need at least another book; in fact, whole books [page 758] have already been written that focus only on a single natural resource such as water3 and fisheries;4 and also on coastal marine resources.5 The purpose of this chapter is to outline how environmental considerations might be integrated into decision-making about allocation of resources, and to reinforce the principles discussed in preceding chapters by reference to resource-specific legislation. This chapter refers specifically to water, fisheries, coastal resources, mining, forestry and soils. Biodiversity, native vegetation and forestry are discussed in Chapters 12–14; pollution and waste in Chapters 15–16; and energy and climate change in Chapter 18.

Environmental management of natural resources 18.5 Managing and allocating natural resources is influenced by the advice of science, the needs of communities and industries, and government policies about regulation and market-based incentives.6 As with environmental planning instruments (EPIs), management plans for natural resources, such as those that engage in strategic planning for fisheries, forests, and water resources, set a framework for subsequent consideration of proposals to utilise, or that might affect, those resources. The extent to which development or resource exploitation may be carried out will be determined, first, by reference to any legislative restrictions that may be incorporated in the parent statutes under which plans are made or resources are allocated (for example, legislation may specifically prohibit mining and other activities in reserved areas);7 and second, by the terms of the management plans themselves. As a matter of law, management plans are subject to the principles of judicial review discussed in Chapter 22. They may, for example, be declared of no legal effect if they engender uncertainty, or are unreasonable or capricious in their operation.8 Legislation may also seek to control activities not just within the areas covered by the management plans, but also activities

in the surrounding environment that may adversely impact on the management of the controlled areas; for example, management of World Heritage Areas under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).9 18.6 Assessing the environmental implications of resource use has traditionally not been part of the responsibilities entrusted to resource allocation agencies. Mining, water, fisheries and forestry legislation has tended to concentrate more on rules and procedures for allocating resources; while, at best, vague instructions to have regard [page 759] to environmental factors when determining licence applications were all that some legislation required. For example, the Mining Act 1992 (NSW) s 237 requires a decision-maker, in deciding whether to grant a mining authority or mineral claim, to: … take into account the need to conserve and protect: (a) the flora, fauna, fish, fisheries and scenic attractions, and (b) the features of Aboriginal, architectural, archaeological, historical or geological interest …

and empowers the decision-maker to call for environmental studies or an environmental impact assessment (EIA) to assist this process. Conditions subject to which an authority or claim is granted or renewed must, ‘if the Minister or mining registrar considers it appropriate’, include conditions relating to the conservation and protection of such features.10 18.7 Alternatively, the task of environmental assessment (EA) was given to another agency, which either had to be consulted about, or concur with, licence allocations; or which could effectively veto a project by refusing, or placing unacceptable (but not unlawful) conditions on, a licence it was empowered to issue. For example, consultation or concurrence might be required for proposals that threaten to impact significantly on threatened species or ecological communities;11 or be required under water management plans.12 Pollution from mining and forestry operations is commonly regulated by an environment protection agency.13 Development that would otherwise be controlled under environmental planning legislation that might, for example, impact on water resources, could be regulated by water management plans.14 18.8 In a sense, however, removing EA from the duties of a resource allocation agency does not help to foster a culture of due regard for environmental factors in resource decision-making, and may indeed lead to

some antagonism towards environmental agencies that can effectively put the brakes on a project. If sustainable decision-making is going to be truly successful, consideration of the environmental implications of resource allocation needs to be fully integrated into project assessment and management. One way of doing this is to place responsibilities for sustainable decision-making and environmental protection on those agencies that allocate natural resources. Another way is to create new agencies with integrated decision-making functions. Both types of approach are now being pursued through government legislative and structural reforms. [page 760] 18.9 An example of the former is the placement of responsibilities on fisheries management authorities to consider sustainability issues and the effects of fishing activities on the wider environment. The objects of fisheries legislation generally include sustainability as a core objective,15 while fisheries managers may be directed to have regard to the precautionary principle in determining total allowable catch.16 The effects of fishing activities on bycatch,17 protection of aquatic habitats from fishing activities,18 and the environmental effects of the use of particular methods for capture such as drift-nets,19 scallop dredges and long-lines are examples of the need for fisheries authorities to have regard to the wider environmental implications of their activities. These responsibilities may be emphasised by statutory requirements that strategic environmental assessment (SEA) should underpin licensing.20 Fisheries authorities are also being given responsibilities to manage marine reserves21 and protected and threatened marine species,22 including sometimes species that are not fish, such as dugong.23 18.10 Examples of more integrated government structural reform include devolution of responsibilities for vegetation, water and threatened species on catchment management authorities under the natural resources reform processes being undertaken in New South Wales,24 and the realignment of government agencies into units that give greater recognition to the integrated nature of the resources they are dealing with; for example, the creation of a Department of Natural Resources and Mines in Queensland;25 the Department of Environment, Climate Change and Water (now Environment and Heritage) in New South Wales,26 which has responsibilities for pollution, waste and resource recovery, national parks and wildlife, native vegetation, water and climate change; and the Department of Environment and Primary Industries in Victoria,27 which brings together responsibilities for environment, water, land, planning, wildlife, forestry and climate change. Bringing together resource allocation and environment protection agencies

‘under one roof’, however, may create problems with cultural adjustment.28 Further discussion of environmental management for natural resources is undertaken in Chapter 9. [page 761] 18.11 It has been pointed out, however, that the net effect of such regulation may be to authorise behaviours that give rise to perverse outcomes, or that limit the ability of the citizen to do what preserves the common environmental good: Collective over-consumption of natural resources is in part a response to the imperatives of consumer and industrial marketing, married to limits to the technologies through which we obtain consumption benefits from nature. This suggests that rather than applying a criminal law paradigm, the aim of regulation and other policy instruments should be to alter the social norms of ordinary (non-aberrant) citizens.29

The planning system as the traditional focus for natural resources management 18.12 The environmental planning system outlined in Chapters 9–11 has traditionally been the way in which natural resource decision-making has been integrated with land use decision-making. There are two approaches to integration: integration of the substantive management of natural resources by placing control within one particular regulatory authority or line of authority; and procedural integration, that is, integration of the procedures for dealing with proposals for development that involve more than one regulatory authority. 18.13 Before integrated natural resources management became more generally accepted as a strategic approach, governments took hesitant steps to explore integration by using the planning system to integrate the procedures for obtaining consents from different regulatory authorities. For example, in New South Wales, integrated development is defined by the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 91 as development that needs development consent plus a permit from another regulator such as the Department of Environment and Heritage (for developments that cause pollution or that might affect threatened species). Each authority will still assess the proposal and issue its own permits, but the process will be streamlined.30 In all jurisdictions, major projects of course will go through

their own streamlined processes for assessment of environmental and economic impacts.31 18.14 Where significant environmental impacts are possible, then a more meaningful version of integration, which moves more towards substantive integration, may be initiated by requiring another interested regulator to be consulted or actually concur in the granting of development consent. This is particularly the case where threatened species may be significantly affected by development32 or clearance of native vegetation may be involved.33 18.15 Another form of procedural integration is where the planning system is used to provide the structure for implementation and enforcement under a different [page 762] statutory regime; for example, approvals for clearance of native vegetation by the minister under the Native Vegetation Act 2003 (NSW); and development in areas protected under management plans in water management areas.34 Attempted integration of this nature is not without its legal pitfalls. Where different regimes attempt to control similar activities, it may be a question of interpretation whether only certain aspects of an activity are controlled; or whether all aspects are controlled by both regimes, and if so what therefore is the relationship between them.35

Cumulative impacts 18.16 One of the criticisms of EA processes introduced by planning regimes that centre on the evaluation of particular developments or activities is that the cumulative impact of decision-making on natural resources is frequently overlooked. For example, while the environmental impact of a single decision may be assessed, what about the cumulative impact of dozens, or hundreds, or even thousands of similar decisions? 18.17 This failure of strategic planning was recognised by the InterGovernmental Agreement on the Environment 1992 (IGAE),36 under which the parties agreed that policy, legislative and administrative frameworks to determine the permissibility of land use, resource use or development proposals should provide for the assessment of the regional cumulative impacts of a series of developments and not simply the consideration of individual development. There is, however, little reference in legislation to cumulative impact assessment.

18.18 One exception is the Water Management Act 2000 (NSW) (WMA), which requires that the Act should be administered in accordance with the water management principles outlined in the Act.37 These principles include that ‘the cumulative impacts of water management licences and approvals and other activities on water sources and their dependent ecosystems should be considered and minimised’.38 Cumulative impacts of uses and activities that have adverse impacts are also core provisions for management of water use, drainage, and other activities.39 This does not mean, however, that any particular performance standards are specified by the legislation. In Queensland, underground water management includes the management of cumulative impacts on underground water caused by the exercise [page 763] of underground water rights by petroleum tenure holders.40 In South Australia, there is a fairly vague general legal duty to ‘act reasonably in relation to the management of natural resources within the State’, which includes ‘the extent to which an act or activity may have a cumulative effect on any natural resources’.41 Another example is found in the Fisheries Management Act 1994 (NSW) s 7E, where one of the purposes of a fishery management strategy is to enable the cumulative environmental impact of fisheries approvals to be assessed. 18.19 Failure to specify cumulative impacts as a necessary component of decision-making does not, of course, mean that such impacts could not be taken into account: cumulative impacts are unlikely to be regarded as irrelevant considerations.42 But specific inclusion of such considerations would, of course, help to focus attention on this aspect of SEA and indeed make it a mandatory relevant consideration in decision-making.43

Water resources 18.20 As explained in Chapter 3, governments everywhere have replaced common law approaches to controlling access to water with regulatory schemes that vest water management in the Crown.44 The objects that govern management of water resources must inevitably include sustainability and protection and restoration of water resources, ecosystems and wetlands,45 objects that can only be achieved through the development of strategic plans and adaptive management of the impacts of industry.46

[page 764] 18.21 Developing a national approach to water management began in 1994 with the Council of Australian Governments (COAG) Agreement that henceforth water policy should reflect principles of sustainable development. A key principle that underpinned this agreement was that rights to water should be separated from rights to land and that water would become therefore property that could be freely traded on an open market.47 Federal economic incentives for state reforms were to be tied to this requirement. Subsequently, the National Water Initiative (NWI),48 developed by COAG in 2004, sought to give greater certainty and security over access to water entitlements by requiring that legislation should clearly specify the legal nature of the entitlements. However, it also recognised that historic overallocation of water resources had to be corrected, and that allocation of statutory entitlements had to be properly planned on a sustainable basis, that environmental needs had to be recognised, and that water resources should be adaptively managed. Water planning would henceforth be based on allocating non-domestic or commercial entitlements a share of access to a ‘consumptive pool’.49 These entitlements would be created as transferable property rights. 18.22 One thing government cannot do, of course, is make sure it rains! In times of severe water shortage, management plans may have to be suspended. 50 And entitlement holders have to accept that if the consumptive pool dries up because of climatic factors or other natural events, then the value of their shares will diminish, and they must take the risk.51 On the other hand, if allocations are reduced because of government interference, such as reassessment of the sustainability of the resource, the risk is only to be borne by entitlement holders until 2014; after that they bear the risk up to the first 3 per cent of any reduction in entitlements, with risks after that being borne by state and Commonwealth governments.52 Importantly, ‘environmental water’,53 in other words, water needed to maintain ecosystem functioning, was to be given equal status and recognition in the statutory scheme. Environmental allocations not required to meet environmental outcomes [page 765] could also be traded on a temporary water market. Water plans must clearly indicate the respective shares of the consumptive pool allocated to the environment and resource extraction. 18.23 In New South Wales,54 for example, these principles now translate

into differentiating between ‘planned environmental water’ and ‘adaptive environmental water’. Planned environmental water is that identified by a management plan for fundamental ecosystem health or other specified environmental purposes and that, once committed, cannot be used for any other purposes.55 Management plans must also provide for ‘adaptive environmental water’; that is, water that is committed by the conditions of access licences for specified environmental purposes,56 but which may be available for use by the access holder if not otherwise required.57 18.24 One of the primary functions of a management plan is to define rules for water sharing from identified water sources (‘water sharing plans’) between the environment and legitimate users.58 Water sources, from which water potentially may be drawn, must be classified according to:59 (a) the extent to which they are at risk (that is, the extent to which harm to the water source or its dependent ecosystems is likely to occur); (b) the extent to which they are subject to stress (that is, the extent to which harm to the water source or its dependent ecosystems has occurred or is occurring); and (c) the extent of their conservation value (that is, the extent to which their intrinsic value merits protection from risk and stress). 18.25 Rules for identifying and maintaining each class of environmental water (‘environmental water rules’) must be included in management plans as part of the water sharing provisions.60 Water management plans must also give effect to the State Water Management Outcomes Plan (SWMOP),61 which sets the overarching context, targets and objectives for management of water resources in New South Wales.62 Other core functions of management plans are to make provision for water use,63 drainage64 [page 766] and floodplain65 management, and aquifer protection.66 Management plans67 may also make provision for environmental protection68 by introducing provisions to control development and phase out existing uses.69 Although a water management committee would normally be engaged by the minister to prepare draft plans70 and submit them to the minister for approval,71 the minister may make a plan for any area or water source for which a plan is not in force, or for matters not covered by a plan.72 18.26 Since water planning determines sharing arrangements between the environment and water users, it might be expected that management planning may generate a fair degree of controversy. Decision-making in respect of

management plans is subject to normal principles of judicial review, as described in Chapter 22. However, the essentially discretionary nature of management planning, turning as it does not only on current information but also predictive factors, and having to take into account socioeconomic impacts, identifies such planning as highly dependent on policy appraisal, making it difficult to challenge decision-making with substantive grounds of appeal.73 A water sharing plan will not, for example, be legally irrational or unreasonable simply because it may be viewed as unfair or inequitable to certain interests. As the New South Wales Court of Appeal iterated in Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources [2005] NSWCA 10: 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 decisionmaking.

Neither is the making of a plan, essentially an exercise that is intended to balance the sharing of water between different interests, likely to impact on individuals directly and [page 767] immediately in a way that would support a claim for lack of procedural fairness, even if the plan will impact on some interests to a greater extent than others.74 18.27 It is also quite clear that a water sharing plan must give priority to protection of the water source and its dependent ecosystems over any other right to extract water, such as an access licence.75 And even where a case may be made out, a finding of invalidity does not necessarily result in a plan being declared invalid. Much depends on how the court interprets the intention of parliament in relation to the consequences of a breach; and in respect of the Water Management Act 2000 (NSW), where a finding of invalidity might have inconvenient commercial consequences (for example, illegitimacy of access licences granted in accordance with the impugned plan), then it is not surprising that the court may interpret a declared breach as not necessarily leading to invalidity of the plan.76 18.28 On the other hand, a plan of course will usually constrain an exercise of discretion to at least substantial compliance or consistency with the plan once it becomes a formal document.77 The purpose of a plan is to seek to avoid uncertainty in decision-making, so that essentially rules for water allocation are applied by policy rather than by ad hoc decision-making by ministers or appellate tribunals or courts.78 Individual water sharing decisions

that have to seek to balance impacts on private individuals with sustainability of the resource may also legitimately, and sensibly, apply principles of sustainability,79 particularly the precautionary principle,80 to decisionmaking. Where a water resource has been historically over-allocated, then the application of principles of sustainability should take on even greater urgency.81 18.29 Access licences82 cannot be granted unless the minister is satisfied not only that the licence is permitted by the relevant provisions of a management plan, but also that adequate arrangements are in force to ensure that no more than minimal harm will be done to any water source as a consequence of water being taken from the water [page 768] source under the licence.83 Principles for dealing with water access licences may be established by the minister.84 No particular considerations have been established by either the Act or regulations for issuing approvals for use.85 Principles of compensating licence holders for reductions in water allocations86 broadly follow the NWI and Water Act 2007 (Cth); that is, compensation is not payable for natural depletions, but may be payable for reductions occasioned by government drawbacks based on new information or a revised strategic approach. In other jurisdictions,87 modern water legislation also broadly follows the NWI initiative, containing similar principles to those found in New South Wales. 18.30 The glaring difference in this policy approach to that adopted by the common law over centuries lies in the conferment of property rights that enables trading in water entitlements. Statutory entitlements used to be allocated as ‘licences’, a term that immediately suggested the nontransferability of the asset.88 Permissive licensing, however, confers no security on the holder of the licence; and since the value of rural properties in particular depends heavily on access to water, it is hardly surprising that rural landholders should agitate for the security that property rights confer. The downside of this, of course, is that although the environment is also considered to be an entitlement holder, the temptation may be to allocate initial entitlements too sparsely, leaving the environment dependent on buybacks, and therefore government funding, for survival. In New South Wales, for example, a number of schemes have been set up to recover water for the environment, including RiverBank, the New South

Wales Rivers Environmental Restoration Program, and the Wetland Recovery program.89 The total value of state and Commonwealth funding for these initiatives was around $200 million. At a national level, the Living Murray Initiative is targeting recovery of water for this catchment;90 in the middle of 2009, the Commonwealth purchased some $50 million of entitlements for this program.91 It will not escape notice that the effect of creating ‘security’ to water is to force governments to buy back water for environmental use that not so long ago was vested in the State. In effect, the new national policy, while stating in theory the equality of commercial and environmental interests to water, gives priority to commercial uses and effectively underpins water entitlements with the security of ‘compensation’ for giving up entitlements by the ability to sell them. [page 769]

The Living Murray 18.31 The Murray–Darling Basin (the Basin), comprising some 14 per cent of the Australian landmass across the eastern seaboard, has been managed by cooperative governmental arrangements since 1915; latterly by the Murray– Darling Basin Ministerial Council and the Murray–Darling Basin Commission under the Murray–Darling Basin Act 1993 (Cth), and more recently under a revised Murray–Darling Basin Agreement (the Basin Agreement), given effect to by the Water Act 2007 (Cth).92 Agriculture and associated processing industries make up a significant part of the economic activity of this region, which also boasts some 30,000 wetlands and other important conservation areas, including 16, or 25 per cent, of Australia’s Ramsar wetlands of international importance. 18.32 The first attempt to halt over-exploitation of the waters in the Basin — the 1997 ‘cap’ that limited extractions to 1993–94 levels — failed to halt the ecological impacts of over-allocations and shortages of water caused by climatic factors, and spurred the Commonwealth and the riparian states93 (New South Wales, Victoria, Queensland and the Australian Capital Territory) to develop an Intergovernmental Agreement on Addressing Water Over-allocation and Achieving Environmental Objectives in the Murray– Darling Basin 2003. The agreement provided for a capital investment of $500 million to address allocation issues and fund water recovery for environmental purposes. Some aggrieved water users, whose water allocations were substantially cut

back, sued the Commonwealth for compensation, claiming acquisition of property on unjust terms. Eventually, a majority of the High Court held in ICM Agriculture Pty Ltd v Commonwealth (2009) 170 LGERA 373, that even if the access rights could be characterised as ‘property’, no acquisition had occurred.94 18.33 The revised Water Act 2007 (Cth) reflects an agreement95 by all participating parties that the Commonwealth should finally take over management of the Basin, as detailed in the revised Murray–Darling Basin Agreement.96 Under this agreement, management of the Basin will be undertaken by a new Murray–Darling Basin [page 770] Authority (MDBA), which is charged with preparing a Basin Plan that sets out limits for sustainable water use across the Basin; and with assessing any new proposals for development or works that might significantly affect the flow, use, quality or control of water. The Act also establishes the Commonwealth Environmental Water Holder,97 which is charged with holding water for the purpose of protecting and restoring the environmental assets of the Basin. To pursue these objectives, the holder may trade in water rights,98 and also make water it holds outside the Basin available for environmental uses that fulfil international obligations; for example, under the RAMSAR Convention.99 Planned environmental water, that is, water committed for environmental purposes by the Basin Plan or relevant state plans, cannot be used for any other purpose.100 18.34 The purpose of the Basin Plan101 is to establish and enforce environmentally sustainable limits (caps) on the quantity of water that may be taken from the Basin water resources, in a way that also optimises economic, social and environmental outcomes.102 At its very least, the Plan must ensure there is no net reduction in the protection of planned environmental water from the protection provided for under state water management laws.103 In particular, development of the Plan must have regard to the fact that the use of the Basin water resources has had, and is likely to have, significant adverse impacts on the conservation and sustainable use of biodiversity; [page 771] and that, in consequence, Basin water resources require special measures to manage their use to conserve biodiversity and to protect and restore the ecosystems, natural habitats and species that are reliant on the Basin water

resources.104 The Plan must also have regard to critical human water needs,105 listed Ramsar wetlands and other key environmental sites. Critical human water needs106 are the highest priority water use for communities who are dependent on Basin water resources.107 18.35 A mandatory requirement of the Basin Plan is the development of an Environmental Water Plan, which identifies the environmental assets that need water, sets out environmental watering schedules, and links this of course with planned environmental water provisions. Water Resource Plans must also be made for each Water Resource Plan Area108 identified in the Basin Plan.109 A state plan may be accredited — for example water sharing plans in New South Wales — or the MDBA may prepare a plan.110 18.36 The Act provides that reductions in water access entitlements that are reasonably attributable to Commonwealth government action may become compensable, in accordance with the principles and risk assignment framework set out in the National Water Agreement.111 Detailed principles for trading water entitlements are set out in Sch 3 of the Act. These include the principles that environmental needs should be recognised and protected;112 and that restrictions on extraction, diversion or use of water resulting from trade can only be used to manage, among other things, environmental impacts, including impacts on ecosystems that depend on underground water. Other impacts that need to be considered are impacts on geographical features such as river and aquifer integrity; and features of major Indigenous, cultural heritage or spiritual significance.113 Trades must not cause an increase in commitments to take water from water resources, or increase seasonal reversals in flow regimes, above sustainable levels identified in relevant water resource plans such that environmental water or waterdependent ecosystems are adversely affected.114 The reality, however, is that the framework for water trading is ‘an extraordinarily complex and multifaceted [page 772] one’ that is underpinned not just by the Water Act and the Basin Plan and associated trading rules, but also by state legislation and water plans, and also of course subject to international agreements such as the RAMSAR Convention on Wetlands of International Importance.115 To enhance the environmental outcomes that can be achieved by the Basin Plan, the Act establishes a Water for the Environment Special Account,116 the object of which is to ease or remove constraints on the capacity to deliver

environmental water to the environmental assets of the Murray–Darling Basin; and increase the volume of the Basin water resources that is available for environmental use.117 Monies in the account may be allocated to stated specific purposes that further these objects.118 18.37 Even though the ambitions of the legislation are laudable, it has been argued that effectiveness, efficiency and fairness will be difficult to achieve; not least because the legislation is inherently restrictive of the ability to address many of the complexities that demand resolution.119 ‘Economic adjustment, education and communication, social support schemes, and the like are not contemplated in the legislation itself, as it relies on water trading and compensated acquisition by the Crown as the adjustment mechanisms.’120 It is too early to tell whether the Basin Plan, recently adopted by the minister, will succeed in delivering these ‘laudable objectives’.

Water efficiency 18.38 The water efficiency of appliances such as washing machines, dishwashers and showerheads is controlled by the national Water Efficiency Labelling Scheme (WELS) introduced by the Water Efficiency Labelling and Standards Act 2005 (Cth). The WELS is a national cooperative arrangement with the states and territories,121 and any decision by the Commonwealth minister to approve water-using or water-saving products as WELS products need the agreement of a majority of the other participating [page 773] governments.122 It is an offence to supply products that require WELS registration, but have not been registered,123 do not meet required WELS water efficiency standards124 or are not properly labelled.125 18.39 Some states have also taken measures to reduce water consumption. For example, the top 200 significant water users126 in New South Wales are required, under the Energy and Utilities Administration Act 1987 (NSW) Pt 6A, to prepare water savings action plans and submit them to the minister for approval.127 After consultation with the user, the minister may amend the plan, although it does not seem that the user’s approval to the amendment is required.128 Although it will be an offence not to submit a plan as required, the Act does not require a designated water user to implement any savings measures specified in an approved savings action plan unless so required by regulation or otherwise directed by the minister.129

Other states have also adopted this approach: ‘businesses are required to go through the process of developing a plan with the expectation being that, having done so, they will identify cost-effective water savings opportunities which, as a matter of self-interest, they will then implement’.130 Queensland, on the other hand, requires mandatory participants to achieve actual water savings; although a ‘best practice’ approach is also offered as an alternative.131 Although the design of such programs may have problems,132 they do seem to have delivered some successful outcomes.133 18.40 The Building Sustainability Index (BASIX), incorporated into the Environmental Planning and Assessment Act 1979 (NSW) (EPAA),134 also now requires new housing, multi-unit development and additions and alterations to be designed so as to use 40 per cent less mains water. A BASIX affected development [page 774] must supply a BASIX certificate135 with any application for development.136 Fulfilment of the commitments listed in a BASIX certificate is a prescribed condition of any development consent for the development.137 Non-regulatory measures for reducing demand for water include water pricing;138 incentives such as those that provide rebates for purchasing products that reach a certain standard of water use or conservation,139 or that are available to encourage purchase of water-saving devices such as holding tanks;140 guidelines for water recycling or reuse initiatives;141 and major capital investments aimed at providing additional or replacement infrastructure such as desalination plants. Competition reform can also encourage providers of water and sewerage services to reuse and recycle waste water; for example, by requiring potential service providers to state how they will address ecological impacts, manage sustainability of the resource and implement water recycling initiatives before being granted licences to operate.142

Fisheries 18.41 Fisheries143 management is conducted in a similar way to water management, although with fisheries the Commonwealth has more direct involvement over resources within Commonwealth control; that is, those areas of ocean stretching from three nautical miles out to the limits of Australia’s exclusive economic zone (EEZ).144 Strategic assessment of Australian fisheries145 takes place under the Environment Protection and

Biodiversity Conservation Act 1999 (Cth) (EPBCA) Pt 10; while other statutory obligations for conservation and protection of fish species are triggered by [page 775] requirements for assessments relating to impacts on protected marine species under Pt 13; and assessments for the purpose of export approval under Pt 13A, which ‘provides one of the only avenues through which the Commonwealth can improve the sustainability of the commercial fishing industry around Australia’.146 Fisheries are assessed for sustainability under the Commonwealth Guidelines for the Ecologically Sustainable Management of Fisheries.147 The export of a product from a fishery must not be allowed if its operations will be detrimental to the survival of a taxon to which the operation relates, or threaten any relevant ecosystem.148 Chapter 5B of the Environment Protection and Biodiversity Conservation Act 1999 allows the minister to prohibit declared commercial fishing activities where the minister and the fisheries minister agree that there is uncertainty about the environmental impacts of the commercial fishing activity; agree that it is appropriate that an expert panel be established to conduct an assessment of the commercial fishing activity and report on the matter; and agree that the commercial fishing activity should be prohibited in a Commonwealth marine area while the expert panel conducts the assessment.149 In Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2014] FCA 117, the Federal Court upheld a declaration by the minister effectively prohibiting a factory freezer trawler, the Abel Tasman, from operating in the Small Pelagic Fishery. The declaration was clearly based upon concerns about the sustainability of allowing ‘super-trawlers’ access to the fishery: The brief prepared by the Department of Environment concluded that there were uncertainties around the potential impact on protected species arising from the operation of the Abel Tasman, on the basis that ‘[t]he length of time which a large mid-trawl freezer vessel is able to stay on a school of fish gives rise to uncertainty about impacts on the environment.’ Some examples of this uncertainty, the brief’s authors observed to the Environment Minister, related to such a vessel’s interactions with seals, dolphins and other marine life, and the concomitant localised depletion of species as a result of disrupting the feeding behaviour of dependent predatory species. The Minister was advised in the brief that the management regime of the SPF be accredited under Pt 13 of the EPBC Act. It was further stated in the brief that: … a precautionary approach should be taken and that additional conditions should be placed on the fishery’s Part 13 accreditation. The additional conditions are designed to ensure that individual fishers operating such vessels are required to take all reasonable steps to avoid interaction with EPBC Act listed species.150

[page 776] Midwater trawling can result in the deaths of dolphins and seals. Vessel management plans may set out environmental management conditions to minimise interactions with seabirds and marine mammals, and require the vessel to report interactions with listed species. Fatalities may result in vessels being banned from operating in a particular fishing zone for the next six months.151 18.42 In Re Nature Conservation Council of NSW Inc and Minister for Environment and Water Resources [2007] AATA 1876, the plaintiffs challenged the decision of the minister to approve the ocean trap and line fishery (OTLF) in New South Wales because of the incidental capture of endangered grey nurse sharks. The tribunal held that although grey nurse sharks met the condition of being a taxon to which the operation relates, the approved operation was not detrimental to their survival so long as the conditions of approval were met. ‘Detrimental’ was interpreted (at [366]) as meaning by comparison to the position the species would otherwise be in.152 The tribunal commented (at [141]): Finally, we wish to make a comment about the general position of grey nurse sharks. There is no doubt that the population of grey nurse sharks off the east coast of Australia is critically endangered. The underlying claim made in this case was that measures should be taken generally in an effort to avoid their extinction. We agree. However, our task is to make a decision about whether to declare a wildlife trade operation to be an approved operation. That does not involve matters outside the relevant operation, which is the New South Wales Ocean Trap and Line Fishery. We are not even determining how that fishery should be managed. We are not, therefore, authorised to consider what general measures should be taken to protect grey nurse sharks. We are, however, in no doubt that if grey nurse sharks are to survive off the east coast of Australia, further urgent steps need to be taken. Nothing in our decision suggests that this is not so. It is just that this Tribunal is not the body to carry out the task.

18.43 The roaming nature of fisheries does, however, mean that there can be no clear division based on borders to determine whether particular fisheries are managed by the Commonwealth or a state or territory. Effective and efficient management may be secured by a Joint Authority or by vesting management either in the Commonwealth or a state,153 irrespective of where the fish may be found at any particular time. Once again, strategic management planning, based on best available science, must be the starting point for management. Plans of management must generally be prepared for [page 777] all fisheries, specifying,154 for example, areas in which commercial fishing may take place; determining total allowable catches (TAC), based on sustainability criteria; and, within the TAC, determining methods for

allocating individual quotas, or fishing rights, to fishermen; introducing restrictions on boat sizes, fishing gear, and fishing methods;155 providing for close seasons and size limits; and devising ways to limit environmental harm and ‘bycatch’, that is, the incidental catching of species that are not the subject of the management plan.156 A plan of management may be expected to set out its objectives; measures by which the objectives are to be attained; and performance criteria against which the measures taken under the plan of management might be assessed.157 18.44 A plan must also be consistent with the objects of the legislation under which it is prepared.158 For example, a plan that introduced unreasonable, capricious or irrational provisions would be unlikely to survive a legal challenge because the legislation that authorised the preparation of the plan would be unlikely to be interpreted as authorising the inclusion of such provisions. In Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 112 ALR 211, for example, a plan of management for a fishery was declared void because the formula for allocating catch quotas under the plan produced anomalies that were capricious or unfair on operators. The plan was thus so unreasonable that it could not be justified on any reasonable ground. In Lamason v Australian Fisheries Management Authority [2009] FCA 245, Spender J at [183]–[184] reminded, however, that: … where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely … … the question of validity in the present case is whether the determination of the Management Plan goes beyond what could reasonably be adopted for the purpose of

[page 778] allocating statutory fishing rights in the Fishery and promoting the economic efficiency of the Fishery, it not being enough that the Court itself might think that the Plan as amended inexpedient or misguided.

18.45 The objectives of the Commonwealth legislation are stated to include:159 (a) implementing efficient and cost-effective fisheries management; (b) ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development (ESD), in particular the need to have regard to the impact of fishing activities on non-target species and the long-term sustainability of the marine environment; and (c) maximising the net economic returns to the Australian community from the

management of Australian fisheries.160 These objectives must be ‘pursued’161 by the Australian Fisheries Management Authority (AFMA) and the minister. Although these objectives are essentially of equal standing in the scheme of the Act, it is not always easy to make decisions that are seen to fulfil each objective, as attested by the challenges to decision-making in respect of fisheries allocations that have reached the Commonwealth Administrative Appeals Tribunal and Federal Court; in particular, over claims that precautionary approaches that may fulfil the intent of objective (b) do not carry out the intent of objectives (a) and (c).162 As the tribunal said in Re Gilmore and Australian Fisheries Management Authority [2005] AATA 943 at [85], ‘those objectives would seem difficult, if not impossible, to achieve in every case’. That impression is consistent with the conclusion reached by Ryan J in Australian Fisheries Management Authority v Graham [2003] FCA 231, when he said of s 3(1) (at [37]): ‘The provision is exhortatory, and each objective cannot be pursued with equal vigour at one and the same time …’. 18.46 The general approach of the tribunal and courts in these cases is consistent with the approach to judicial review discussed at 22.67 — that where the weighting of relevant factors is not indicated by the legislation, considerable discretion must be intended to be given to the decision-maker to determine appropriate weightings in each case; and only if such weighting in an individual case could be said to be so unreasonable that no decision-maker, on the evidence, could have accorded such [page 779] weighting, will the court or tribunal interfere with a decision that the legislation places fairly and squarely in the hands of the regulator to determine.163 For example, in Ajka Pty Ltd and Australian Fisheries Management Authority [2001] AATA 258 at [86]–[87], it was held that limiting access to a fishery was a lawful pursuit of objective (b) above;164 and in the context of a developing fishery where scientific knowledge was necessarily incomplete or uncertain, it would be legitimate to give this objective superior weighting to any of the others.165 It might be different, however, where the relevant circumstances of a particular fishery are well known; then it may be that each and every objective must be pursued. It has also been noted in the context of merits appeals challenging quota allocations and total allowable catches (TAC) that ‘the Tribunal will approach with caution large and complex issues with which the agency making the reviewable decision is especially equipped

to deal. This is particularly so when the issues are influenced by policy and not merely by matters peculiar to the reviewable decisions themselves’.166 18.47 Management of fisheries, including allocations of fishing rights, must generally adhere to the terms of a management plan for a fishery,167 unless legislation allows some discretion to depart from the formula set out in the plan.168 For example, in Australian Fisheries Management Authority v Gilmore [2009] FCA 1369, Besanko J said at [62]: Neither the Authority, nor the Panel, had a general discretion to depart from the provisions of the Management Plan. The provisions of the Fisheries Management Act and the Management Plan are clear. Section 29(3) of the FM Act provides that the selection process is to be carried out in accordance with the procedures specified in the Management Plan. Put another way, that means in conformity with procedures which, it is envisaged by the FM Act, will be laid down in the Management Plan. … The Management Plan is quite clear in the procedures it specifies. It would have been open to the makers of the Management Plan to confer a general discretion but they did not do that …

[page 780] Modern fishing entitlements are expressed as more in the nature of property rights than mere licences,169 even though an entitlement may still be referred to as a ‘permit’,170 though permission from the regulator may have to be sought to transfer such entitlements. Entitlements expressed as licences may, however, still retain the elements of non-transferability,171 although the legislation must be closely examined because some licences may be transferable.172 18.48 Investing fishing entitlements with the attributes of property may also trigger a response that certain management actions, such as winding back or removing allocations, should be subject to payment of compensation173 in circumstances outlined by the legislation,174 although the legislation may equally make it clear that compensation is not payable.175 In Alcock v Commonwealth of Australia [2012] FCA 524 at [26], the Federal Court confirmed that an abalone licence issued under the Fisheries Act 1995 (Vic) was indeed ‘property’ within the meaning of the Constitution s 51(xxxi) (acquisition of property on just terms). ‘The licence presently under consideration … confers a valuable right. It is granted for a fixed term. It is assignable. It is only liable to cancellation upon cause being shown. In the event of the death of the licence holder the licence is deemed to be an asset of his or her estate.’ The plaintiff’s right to fish had been abrogated by the passage of the National Parks (Marine National Parks and Marine Sanctuaries) Act 2002 (Vic), although the Fisheries Act did include provisions for compensation in

such circumstances. The plaintiff’s argument was that the arrangement between the Commonwealth and the state of Victoria176 in respect of this fishery might also generate an entitlement to compensation under the Constitution. The claim was rejected: Abalone, like sub-terranian water is a fluctuating natural resource. They are both susceptible of State regulation utilising a licensing regime. The modification of the terms and conditions pursuant to which a licence is held under such a regime does not … constitute an acquisition of property. While the licence holder may have a property

[page 781] interest in the licence he or she has no such interest in the natural resource. Moreover, the State itself cannot be said to gain any measurable advantage for itself as a result of the variations to the licensing arrangements. The arrangements between the Commonwealth and the State of Victoria which are the subject of present attention do not include any attempt by the Commonwealth to require the State to acquire the applicant’s property as a condition of the granting of funding for the operation of the marine national parks and marine sanctuaries.

18.49 Allocation or revocation of entitlements is also subject to normal principles of judicial review.177 For example, in Rouse v Minister of Fisheries [2003] NSWSC 700, the plaintiff succeeded in convincing the court that revocation of his licence was manifestly disproportionate and so devoid of plausible justification that no reasonable person could have taken that course; and that the revocation amounted to an abuse of power. In WC & AC Morin Pty Ltd v Queensland Fisheries Management Authority [2000] QSC 169,178 the court held that the necessity to take urgent action to prevent overfishing legitimately influenced the standard of natural justice that had to be accorded to fishers who suffered changes to quota entitlements.

Coastal protection 18.50 Protection of the coastline has taken on more urgency as the potential impacts of climate change begin to bite.179 The coastal zone is one of Australia’s greatest assets. Its unique coastal values and resources are vital to the Australian way of life. The capacity to ensure ESD use and development of the coastal zone is imperative for all Australians, both now and into the future. Pressures on coastal resources are increasing at a rate that exceeds the time necessary for damaged environments to stabilise and be repaired. Forward thinking is required to initiate a nationally cooperative focus on achieving ecologically sustainable development through integrated coastal zone management (ICZM). Now is

the time to encourage more active rehabilitation, protection and improvement of these important assets through proactive planning and management.180 18.51 Other pressures come from over-development, acid sulphate soils, coastal and estuarine water quality, marine debris and ship-based wastes, dredging, and [page 782] pest animals and plants.181 The Climate Council’s latest report, Counting the Costs, also highlights the significant risks to homes, infrastructure and biodiversity from coastal flooding.182 18.52 For purposes of management, the ‘coastal zone’ is generally defined as comprising coastal waters;183 and either as all areas to the landward side of coastal waters in which there are physical features, ecological or natural processes or human activities that affect, or potentially affect, the coast or coastal resources,184 or, more precisely, the area between the western boundary of the coastal zone shown on maps outlining the coastal zone.185 18.53 Although development along the coast is primarily influenced by planning decisions taken under the environmental planning legislation discussed in Chapter 10, most states also have specific planning policies that address coastal development and/or have legislation devoted to coastal protection. In New South Wales, for example, the purpose of SEPP 71 Coastal Protection is basically to protect the environmental, visual and recreational attributes of foreshores, beaches and coastlines. To do this, it requires such considerations to be taken into account by consent authorities when determining applications for development in the coastal zone; requires certain development applications to carry out development in ‘sensitive coastal locations’186 to be referred to the Director-General for comment; and identifies master plan requirements for certain subdivision development in the coastal zone. 18.54 Under the provisions of the Coastal Protection Act 1979,187 which makes promotion of principles of ESD a mandatory function,188 local councils may be directed by the minister to prepare coastal zone management plans,189 and to protect beach amenity, headlands and waterways. Effectively, a person may 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, without development consent if the work is in

accordance with the relevant coastal zone management plan; or is emergency works: see 18.55.190 Public authorities191 proposing to carry out, or authorise, development or use of any area in the coastal zone may be required to seek ministerial concurrence;192 and [page 783] either the minister or the Governor may direct works to be carried out by the minister as constructing authority for the preservation, protection, maintenance, restoration or improvement of the coastal zone.193 Private development within the coastal zone cannot be carried out without ministerial concurrence unless development consent is governed by the Environmental Planning and Assessment Act 1979 (NSW) or otherwise exempted.194 18.55 In late 2009, the New South Wales Sea Level Rise Policy Statement adopted sea level rise benchmarks of up to 40 cm by 2050 and 90 cm by 2100. This corresponds to a projected erosion and recession distance of 4–90 metres landwards. The federal government’s report Climate Change Risks to Australia’s Coast, however, predicts that sea level rise relative to 1990 could be between 75–190 cm, with 1.1 m being adopted as a plausible sea level rise. Partly in response to this, and the pressures exerted by the Vaughan litigation (see 18.58), the Coastal Protection Act 1979 (NSW) has been amended to introduce provisions that address the ability of coastal property owners to, at least temporarily, protect their properties from coastal erosion.195 Landowners in specific locations will now be able to place, as a one-off arrangement, sand or sandbags, or other material or objects prescribed by the regulations, on the beach under strict conditions, including the requirement to maintain them, in order to reduce the impact of coastal erosion on their properties.196 Planning and associated approvals are not required for the placement and maintenance of such authorised temporary coastal protection works.197 If the works cause erosion of a beach or adjacent land, or unreasonably limit public access, a coastal authority may order their removal and restoration of land, including public land and land adjacent to the works.198 Consent authorities assessing development applications for long-term coastal protection works such as seawalls must be satisfied that appropriate arrangements are in place to restore beaches if they are eroded by the works.199 Requirements for the placement, management and removal of temporary structures and restoration of the environment are set out in the Code of Practice under the Coastal Protection Act 1979 2013.200

[page 784] 18.56 A New South Wales Coastal Panel has been established201 to provide expert advice to the minister and councils on coastal management issues.202 Another stated function is that the panel will also be the consent authority for certain developments affecting the coast under the Environmental Planning and Assessment Act 1979 (NSW) but no provisions for this have yet been made. Councils and state agencies carrying out coastal management activities in good faith are also to be protected from potential legal action by statutory exemptions from liability.203 The minister will be directing councils in areas with properties at high risk of beach erosion to prepare a Coastal Erosion Emergency Action Plan and Coastal Zone Management Plan within a specified period. Queensland also requires the preparation of a coastal plan204 that has, as primary considerations, public access to the foreshore and the effect of climate change on coastal management.205 The objects of coastal management are to be achieved by coordinated and integrated planning and decision-making.206 Regulatory provisions are set out in the Coastal Protection State Planning Regulatory Provision 2013.207 The chief executive of the Environmental Protection Agency has power under the Coastal Protection and Management Act 1995 (Qld), as assessment manager or concurrence agency under the Sustainable Planning Act 2009 (Qld), to direct refusal or conditional consent of an application for assessable development, after considering a number of matters set out in the Act.208 The removal of quarry materials in the coastal zone is also subject to a broad range of considerations, including the coastal plan and environmental impacts.209 Areas requiring immediate protection or management may be declared coastal management districts, which enables the chief executive to, inter alia, issue coastal protection notices to persons to take the reasonable action stated in the notice to protect [page 785] land; or to stop, or not start, an activity stated in the notice, if the chief executive is satisfied the activity is likely to have a significant effect on coastal management or cause wind erosion.210 Urban development is to be located outside areas of high ecological significance in any coastal management district, unless the minister is satisfied there is an overriding social and economic need.211

The chief executive may also declare an area within the coastal zone to be an erosion-prone area if satisfied the area may be subject to erosion or tidal inundation.212 18.57 Victoria213 has a coastal strategy (VCS),214 coastal action plans and coastal management plans.215 In Gippsland Coastal Board v South Gippsland Shire Council [2008] VCAT 187, the tribunal said (at [12]): Coastal issues have a high significance for planning in Victoria. The State Planning Policy Framework (SPPF)[3] sets out objectives and strategies for coastal areas, which require that land use and development planning should be coordinated with the requirements of the Coastal Management Act 1995 and that decision making by responsible authorities should be consistent with the Victorian Coastal Strategy … The very existence of the Coastal Management Act 1995 and the establishment of coastal boards … under this Act, indicates the sensitivity of coastal issues and the reliance which the Government has placed on such boards for implementing the Victorian Coastal Strategy and advancing the interests of good planning for coastal areas.

The VCS provides guidance for planning and management of the coastal zone.216 Where decisions are made outside the framework of the Act, decision-makers must take into account the hierarchy of principles and the policies set out in the VCS. Any development of coastal Crown land in Victoria217 requires ministerial consent.218 The minister receives advice on development proposals from the Victorian Coastal Council.219 [page 786] In South Australia, the Governor may proclaim coast220 protection districts.221 A management plan must then be prepared by the Coast Protection Board.222 The board may execute necessary works in relation to land constituting or forming part of a coast protection district.223 The board may also fund works undertaken by local councils that remediate coastal structures or put in place protection works so long as these do not impact adversely on neighbouring landowners or natural processes or ecosystems.224 The Coast Protection Act 1972 (SA) does not appear to be intended to impact directly upon planning functions; although the board does have a power of direction in certain circumstances that involve filling, excavating or coastal erosion works within 100 metres of the coast.225 Otherwise applications for development consent that may impact on coastal protection must be referred to the Coast Protection Board for advice and comment.226 The board has also prepared its own strategies for protection and management of the coast,227 which include ‘hazard standards’ for coastal flooding and erosion that are used to advise or direct planning authorities on individual proposals for development along the coast. The Department of Planning has also released

the South Australian Planning Policy Library 2011,228 which includes a section on coastal development and avoidance of hazards from changing climatic conditions. In Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2008] SASC 57 at [28] the court, in upholding a decision of the environment court to refuse a subdivision proposal because of unacceptable impacts on the coast, commented ‘the proposal is on any view an attempt to develop the land to the greatest extent possible without due regard to the ecological sensitivity of the area and the need to preserve natural features’. 18.58 Tasmania has a State Coastal Policy 1996,229 which must be given effect to by all relevant decision-makers under Tasmania’s Resource Management and Planning System.230 The policy is intended to be a framework of principles to guide the formulation of planning schemes, not to be used as a test for assessing individual [page 787] development proposals.231 Nevertheless, where a planning scheme requires that regard be had to the Coastal Policy, then whether or not a proposed development might be inconsistent with the policy is clearly a matter for consideration.232 In St Helen’s Area Landcare and Coastcare Group Inc v Break O’Day Council [2007] TASSC 15 at [70], the court also said that the effect of the State Policies and Projects Act 1993 (Tas) s 13C(b), which states that a State Policy binds a council, was to impose on every council considering a planning application in respect of land in the coastal zone an obligation to seek to achieve the ‘outcomes’ enumerated in the Coastal Policy. Western Australia also has a State Planning Policy 2.6 State Coastal Planning Policy (2013) to replace the policy prepared under previous legislation.233 The Planning and Development Act 2005 (WA) requires local governments, when preparing or amending a local planning scheme, to have due regard to state planning policies;234 and requires the Western Australian Planning Commission also to have regard to relevant state planning policies when determining applications for development consent.235 One purpose of the policy is to encourage adequate coastal hazard risk management and adaptation planning;236 another is to ensure that a coastal planning strategy and/or foreshore management plan is required to support development on the coastal foreshore reserve and any abutting freehold land with conservation values of the subject land.237 Action to protect the coastline from inundation by predicted impacts of climate change is discussed at 17.35 and following.

Mining and petroleum 18.59 Both on-shore and off-shore exploration and mining for minerals, oil and gas are regulated by specific legislation that introduces environmental controls of variable, and sometimes dubious, quality, managed by government mines departments or similar.238 On-site and off-site environmental controls on exploration and mining [page 788] are also found in environmental protection legislation, though managed by different government agencies. Exploitation of mineral resources is of course a high-yield economic activity; and although mining ventures may be subject to EA before approval can be given, the economic promise holds great sway in political circles, influencing the New South Wales government, for example, to enact legislation to give the economic advantages of a proposal priority over environmental and social impacts.239 Although this legislation has now been repealed240 after barely 12 months in operation, following community unrest (and no doubt the precise meaning of the amendments),241 the fact that it was promulgated at all does point to the pressures now being exerted on governments to place greater restrictions on fossil fuel industries that currently return fairly healthy revenues to government coffers. Environmental control within the mining legislation tends to be fairly vague,242 or non-existent.243 For example, the need to protect natural resources when determining applications for exploration or mining needs to be ‘taken into account’,244 environmental impact studies ‘may’ be carried out,245 and environmental conditions may be imposed if considered appropriate.246 More generally, ‘regard should be given to the principles of sustainable development’.247 Even rehabilitation of mining sites may only be subject [page 789] to discretionary248 rather than compulsory249 decision-making. Operators may also be under necessarily vague duties to take all reasonable and practical measures to avoid damage to the environment,250 and directions may sometimes be given by authorised officers to address environmental impacts.251 18.60 More focused provisions for identification and management of environmental issues, including rehabilitation, are however becoming more common. For example, in South Australia, regulations now require that

programs for mining operations include strategies to manage environmental impacts and achieve environmental outcomes; and set out the criteria for measuring those outcomes.252 Some mines authorities may also direct environmental audits to be prepared that provide information on environmental compliance, or enable a determination of whether the way activities are being carried out under an authorisation can be improved in order to protect the environment.253 In Western Australia, rehabilitation has to be part of a mine closure plan,254 and a dedicated fund has been established to deal with the rehabilitation of abandoned mine sites and other affected land.255 The fund is augmented by a levy imposed on all existing mining authorisations,256 so in this sense existing operations are paying for the faults of their forbears. More focused environmental management requirements are also being implemented for petroleum exploration and production. In some jurisdictions regulations now provide for the elimination and minimisation, so far as is practicable, of the environmental risks involved in undertaking petroleum operations. An operations plan must now include an environment management plan that identifies and evaluates the environmental effects and risks that may arise directly or indirectly from a petroleum operation; defines environmental performance objectives; sets environmental performance standards; includes measurement methods for determining whether the objectives and standards have been met; and includes measures to ensure that those environmental performance objectives and standards are in fact met.257 [page 790] 18.61 Alternatively, responsibilities for EA,258 and the power to require environmental audits or investigations,259 and rehabilitation260 may be transferred to an environment protection agency, as in Queensland. South Australia seems to adopt a sort of ‘halfway house’ by not transferring functions for environment protection directly to another agency, but requiring that the objectives of the Natural Resources Management Act 2004 (SA) should govern decisions made under the Mining Act 1971 (SA) to carry out one objective of that Act; namely, that mining operations that have (or potentially have) adverse environmental impacts are properly managed to reduce those impacts as far as reasonably practicable and eliminate, as far as reasonably practicable, risk of significant long-term environmental harm, and ensure that land adversely affected by mining operations is properly rehabilitated.261 Otherwise, the control that may be exercised by an environment agency is

generally limited to regulating off-site pollution.262 18.62 Exploration and mining may also be restricted or prohibited in certain areas reserved for conservation, such as national parks and wilderness areas.263 However, the boundaries of parks can of course always be redefined, a dedication revoked, and exemptions made to mining prohibitions,264 and in any case prospecting may be permitted in a reserve even though mining would be prohibited265 — a clear indication that a reserve might be subject eventually to redefinition. Where mining is permitted in reserves,266 then of course strategic management planning267 to inform decision-making, including the placing of conditions on consents,268 becomes of crucial importance, as it does for mining outside reserves. [page 791] Sometimes mining can occur underneath, rather than on the surface of, a reserved area269 without disturbing the surface. Surface disturbance, including riverbed and cliff-face cracking, is however a feature of modern methods of longwall mining,270 and government inquiries and subsequent reforms have sought to address this particular feature of modern mining practice. In New South Wales, alteration of habitat following subsidence due to longwall mining is listed as a key threatening process under the Threatened Species Conservation Act 1995 (NSW).271 Repair of cracking by grouting also has the potential to cause pollution and damage to land if the repair is not carried out properly and the grouting leaks out.272 In practice, requirements for more meaningful assessments are likely to be imposed where mining is subject to development consent or an EIA regime under the planning legislation.273 Development control of mining may simply be ousted by the mines legislation;274 or, more preferably, subject to integrated assessment at state level275 in order to capture potential environmental impacts. Assessment at this stage is likely to produce the most meaningful control, including ongoing adaptive management,276 particularly for larger projects. Assessment for the purposes of development consent can also focus attention on social, as well as environmental issues. In Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 4) [2014] NSWLEC 200, a large part of the project, including parts of the mine pit and the sedimentation pond, was to be carried out and located on private property. The Environmental Planning and Assessment Regulation 2000 (NSW) clause

8F(1) states that the consent of the owner of land on which a project is to be carried out is required for a project application or modification application [page 792] unless the application relates to a mining or petroleum production project. The Court imposed a condition that the property must be purchased, leased or licensed by the operator before operations could begin. This condition was upheld as legitimate by the Court of Appeal in Ashton Coal Operations Pty Ltd v Hunter Environment Lobby Inc [2015] NSWCA 358. Responding to an argument that clause 8 meant that such a condition could not be lawfully imposed, the Court said, at [23]: That clause excepts mining projects from the requirement that the consent of the owner of land on which a project is to be carried out is required for a project application. This prevents mining project applications that are not supported by such a consent from being refused but in my view does not address the question of whether a condition of the grant of such an approval requires such consent, either at the outset or at some later stage in the project’s life. The power of the relevant Minister (and on appeal, the Land and Environment Court) … to impose conditions on an approval is unconfined. In the absence of authority in the regulation-making power … to do so, a provision in the EP&A [Environmental Planning and Assessment] Regulation cannot detract from the breadth of that power and, in any event, clause 8F(1)(c) does not purport to do so. It is concerned with the approval of a project or its modification, not with the conditions to which any such approval may be subject.

18.63 Coal mining in particular is now facing substantial opposition because of climate change implications, and more merits appeals and legal challenges to new mines and extensions of existing mines may be expected.277

Coal seam gas (CSG) 18.64 Due to a decline in the availability of natural gas from conventional sources and the increasing demand for cleaner energy to replace fossil fuels, there has been a rapid uptake of interest in unconventional onshore gas, such as coal seam gas, in recent years. 18.65 Proposals for the extraction of coal seam gas are, however, generating heated opposition, particularly in rural, but also in susceptible urban, communities, over fears of adverse impacts on underground water resources278 and agricultural and pastoral pursuits.279 Fracking, or underground hydraulic fracturing of coal [page 793] seams,280 has been the primary focus of criticism and protest; and the uncertainties associated with this form of exploitation, including the effects of

the chemicals used in this process, has led to periodic government moratoriums and inquiries over the use of this technology.281 Major failings of the regulatory system governing coal seam gas extraction in New South Wales were identified by the New South Wales Chief Scientist, in the ‘Final Report of the Independent Review of Coal Seam Gas Activities in NSW’ (2014).282 Coal seam gas extraction has also been addressed at the national level, with the inclusion in the EPBCA of a new ‘Matter of National Environmental Significance’: coal seam gas and large coal mining development that might have significant impacts on water resources. Before approval can be given to a coal seam gas or large coalmining project that triggers the assessment process under the EPBCA, the proposal must be referred to an Independent Expert Scientific Committee (IESC) formed as a result of a Commonwealth/State National Partnership Agreement for the Regulation of Coal Seam Gas.283 Under this agreement, the IESC will assess proposals for coal seam gas284 mining by undertaking a bioregional assessment that gathers information about the interrelationship of biodiversity with surface and ground water in the area potentially affected by the proposed development.285 State governments, evaluating coal seam gas proposals that have triggered the EPBCA assessment process but also need State regulatory approvals, must consider the findings of the IESC, though they are not bound to act on any particular recommendations or implement any advice from the IESC. Coal seam gas extraction is regulated at state level by the regime for onshore petroleum exploration and development, although there is no uniform set of rules.286 [page 794] Victoria and Tasmania currently have moratoriums on hydraulic fracturing; and Victoria and NSW have banned the use of certain chemicals associated with the fracturing process. The NSW ‘Code of Practice for Coal Seam Gas Fracture Stimulation Activities’287 requires a title holder to prepare an approved fracture stimulation management plan (FSMP). This includes a requirement for a risk assessment to be carried out prior to each proposed hydraulic fracture. It also requires the disclosure of comprehensive details of all chemicals to be used in hydraulic fracturing activities. South Australia permits hydraulic fracturing, but regulates this through its usual environmental approval processes; namely, the requirements for an

approved statement of environmental objectives based on an environmental impact report.288 In Western Australia the Petroleum and Geothermal Energy Resources (Environment) Regulations 2012 (WA) require the operator of a petroleum activity to submit an environmental plan for the minister’s approval,289 prior to any petroleum activity being carried out. The plan must include an implementation strategy that contains details of any chemical that may be used during hydraulic fracturing and drilling activities.290 In Queensland,291 regulation of hydraulic fracturing occurs through the existing approval structure under the Environmental Protection Act 1994 (Qld), which requires the issue of an environmental authority before petroleum activities, including CSG, can be undertaken. Documents required for an application for a CSG activity include whether the proposed management of the coal seam gas water is consistent with the coal seam gas water management policy, including the prioritisation hierarchy for managing and using coal seam gas water.292 Detailed environmental management plans must also accompany applications, including proposals for water management and the measurable criteria against which the applicant will monitor and assess the effectiveness of the management of coal seam gas water.293 An environmental authority is also taken to include a condition prohibiting the use of restricted stimulation fluids; for example, the use of hydrocarbon chemicals to stimulate the fracturing of coal seams.294 The Petroleum and Gas (Production and Safety) Regulation 2004 (Qld) requires all petroleum tenure holders to disclose the details of any hydraulic fracturing about to be undertaken; and the composition of the hydraulic fracturing fluid actually used, [page 795] although notice of the composition of the fluid seems only to be required after the event, not before.295 One of the declared purposes of the Minerals and Energy Resources (Common Provisions) Act 2014 (Qld) is to ‘to manage overlapping coal and petroleum resource authorities for coal seam gas’.296 This legislation is directed towards establishing common application processes and access to land requirements for all resource-based activities under the five existing ‘Resource Acts’,297 and does not deal directly with processes for extracting coal seam gas. 18.66 In New South Wales, intense opposition to coal seam gas proposals

has triggered a comprehensive Strategic Regional Land Use Policy in which strategic plans aim to integrate areas suitable for coal seam gas production with management and protection of existing agricultural and pastoral pursuits and protection of water supplies.298 Amendments to the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW) now establish CSG exclusion zones in residential areas; require agriculture impact statements to be carried out at the exploration stage; establish an Aquifer Interference Policy for assessment of risks to, and protection of, underground water; and introduce a Gateway process for the assessment of applications for new state significant mining and CSG proposals on strategic agricultural land and the Upper Hunter equine and viticulture critical industry clusters (CICs).299 A judicial review challenge to development consent for coal seam gas extraction failed in Barrington — Gloucester — Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197. To inform itself about the process, and associated environmental risks, the consent authority, the Planning Assessment Commission (PAC) had researched the experience of coal seam gas projects in the United States. The court said (at [206–7]): … the PAC was ‘conscious’ of the ‘limited experience with commercial coal seam gas extraction in New South Wales’ and undertook the step of educating itself by having regard to the extensive documented experience of coal seam gas extraction in the USA. It specifically referred to the report of the United States Environmental

[page 796] Protection Agency, Evaluation of impacts to underground sources of drinking water by hydraulic fracturing of coalbed methane reservoirs. This information informed the PAC in considering the level of risk and the appropriate precautionary measures. In my opinion, it cannot therefore be said that the PAC failed to consider ESD principles, and in particular the precautionary principle, in relation to groundwater. Nor can it be said, in my view, that the PAC had insufficient information before it to make an informed decision in this regard. The material before the PAC contained an extensive analysis of the issues concerning groundwater, which resulted in the imposition of conditions aimed at ensuring that appropriate measures were adopted and implemented having regard to the precautionary principle.

In Fullerton Cove Residents Action Group Inc v Dart Energy Ltd [2012] NSWLEC 207, however, the applicant was successful in gaining an interlocutory injunction to restrain the respondent from acting upon a government approval for a pilot program in relation to coal seam gas development, on the basis that the applicant’s evidence about possible impacts on water supply, local aquifers, water quality, a nearby internationally listed Ramsar wetland, and the risk of other irreversible environmental harm flowing from the challenged project, did raise serious issues to be tried. In the event, however, the appellant’s claims that the respondents should have

completed an environmental impact statement (EIS), under Pt 5 of the Environmental Planning and Assessment Act 1979 (NSW), because their activities were likely to significantly affect the environment, they were dismissed by the Court on the balance of the evidence.

Nuclear energy 18.67 Control over the mining of prescribed substances associated with nuclear production (mainly uranium) is governed by the provisions of the Atomic Energy Act 1953 (Cth) and the Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth). This legislation enables the Commonwealth to fulfil its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons and the South Pacific Nuclear Free Zone Treaty Act 1986 (Cth). The Australian Nuclear Science and Technology Organisation Act 1987 (Cth) establishes the Australian Nuclear Science and Technology Organisation, the functions of which include carrying out research and supervising the activities of persons who are mining, treating or selling uranium.300 18.68 Protection of the environment from nuclear actions is a matter of national environmental significance under the EPBCA,301 and subject therefore to the provisions of that Act. No approval can be given for construction or operation of nuclear installations,302 particularly a nuclear fuel fabrication plant, nuclear power plant, enrichment plant or a reprocessing facility.303 Some states also prohibit prospecting and mining for uranium, as well as the construction or operation of nuclear installations.304 [page 797] Where uranium mining is allowed, in the Alligator Rivers Region of the Northern Territory, which also contains the Kakadu National Park World Heritage Area, environmental controls are imposed under the Environment Protection (Alligator Rivers Region) Act 1978 (Cth) and the Environment Protection (Northern Territory Supreme Court) Act 1978 (Cth). Under this legislation, the Supervising Scientist is given the responsibility of supervising the effects of uranium mining on the environment of the area, developing standards, practices and procedures, and giving advice, for fulfilling the objectives of environment protection both within and outside the region.305 The Supreme Court of the Northern Territory is given power to enforce all regulatory requirements and licence and lease conditions relating to uranium mining operations in the area.306 Under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), authorised persons may enter land to

obtain information about uranium operations, including action taken to comply with environmental obligations.307 In South Australia, uranium mining is regulated under the provisions of the Roxby Downs (Indenture Ratification) Act 1982 (SA), and a similar approach is taken in Western Australia.308

Forests 18.69 Clearance of public land by large-scale forestry operations has probably been Australia’s longest running conservation imperative. Even after nearly three decades of activism, the adoption of a National Forest Policy Statement in 1995, and the subsequent creation of Regional Forest Agreements (RFAs), based on the comprehensive, adequate and representative (CAR) system of reserves,309 conflict over native forests, particularly old growth, shows little sign of abating.310 The conservation values of forests were assessed in the process leading up to the conclusion of the RFAs, under which the Commonwealth approves forest products taken from such areas covered by the agreements as suitable for export without further assessment or approval. 18.70 RFAs are the first comprehensive attempt by governments to reconcile conservation imperatives with demands by industry for a secure resource base on which to justify capital expenditure in forest industries. The problem, however, is that these agreements are based on what many see as an already badly degraded stock of public forests, gobbled up by forest industries over many years of mismanagement, during which conservation issues were largely ignored, particularly following the introduction of the woodchipping industry. 18.71 Under the Regional Forest Agreements process, state and federal governments agree to manage forests on the basis of a CAR system of forest reserves. RFAs are [page 798] based on nationally agreed criteria for scientific assessment of environmental values, include objectives and targets for representation of species and ecosystems, such as old growth forests,311 and are intended to provide a blueprint for logging and conservation objectives over a 20-year period.312 18.72 The incentive for states to sign up to RFAs with the Commonwealth is that conclusion of an RFA means reduced Commonwealth interference in

state forests management. The EPBCA assessment and approval processes do not apply to RFA forestry operations undertaken under RFAs,313 and neither do export restrictions on timber and woodchips logged in accordance with agreed forest practices.314 A person may also undertake certain forestry operations (except in world heritage areas or areas covered by Ramsar wetlands) in an RFA region in a state or territory without approval under the EPBCA if there is not a regional forest agreement in force for any of the region.315 18.73 The effect of these provisions was explained by Marshall J in Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178 at [104]: The effect of s 42 is that Pt 3 of the EPBC Act can apply to certain forestry operations, which will need approval. The relevant forestry operations are those in a property included in the World Heritage List, those in what I call a Ramsar wetland and those incidental to another action whose primary purpose does not relate to forestry. In each case, in s 42, the focus is on an action which is a forestry operation. For current purposes, the action is an action for the construction and operation of a pulp mill. Consequently, s 42 is not relevant. Forestry operations in Tasmania used to source wood for the pulp mill will not require approval under s 38 because of the existence of a Regional Forestry Agreement which nominally expires in 2017, provided those forestry operations are undertaken in accordance with the Regional Forestry Agreement. Section 75(2B) has the effect that any adverse impacts from such forestry operations must not be taken into account by the Minister in making a controlled action decision.

18.74 The limitations of the RFA are perhaps highlighted in the actions brought in the Federal Court by Senator Brown over protection of threatened species under the Tasmanian RFA.316 In Brown v Forestry Tasmania (No 4) (2006) 152 LGERA 146, the Federal Court interpreted the obligation to ‘protect’ Priority Species (rare and threatened species) contained in the Tasmanian RFA s 68 ‘through the CAR reserve system or by applying relevant management prescriptions’ as remaining unfulfilled because neither the reserve system nor management prescriptions actually provided protection. And since the RFA agreed to ‘protect’ rather than ‘attempt to protect’, or ‘to consider the possibility of protecting’, threatened species, forestry operations in the area had not been carried out therefore in accordance with the RFA. Accordingly, [page 799] logging operations, as actions within the meaning of the EPBCA, were not exempted by the provisions of s 38 of the Act. 18.75 Subsequent to this decision, the RFA s 68 was amended to state that the parties agreed that relevant management strategies in place protected rare and threatened species and communities. On appeal, Forestry Tasmania v

Brown (2007) 158 LGERA 191, the Full Court held that the amended version of the RFA s 68 was admissible on appeal; and that in any case the new s 68 was merely clarification of the true meaning of the original clause, that the agreement in effect afforded protection to priority species; and that the new s 68 did not deprive the agreement of its character as an RFA, even if the original s 68 agreed to protect, whereas the new version agreed that protection was being effected through the management prescriptions already in place. Since the Tasmanian RFA was an RFA as defined by s 38 of the Act, it was therefore exempted from the EPBCA process and the court did not deem it necessary therefore to deal with the dispute raised in the lower court about the actual degree of protection afforded by the management prescriptions. 18.76 Conservation value forests may be protected by reservation in world heritage, national parks and forest reserves;317 while logging in unprotected, commercial forest areas generally takes place under management plans318 and codes of practice319 designed to minimise adverse environmental effects and promote sustainable forests management.320 Private plantation forestry proposals may also have to undergo EA321 and comply with codes of practice.322 While forestry legislation, to the extent that it deals with approval processes for EA and enforcement, may oust the applicability of other relevant laws such as those pertaining to development consent, biodiversity and native vegetation,323 equally, where [page 800] the legislation does not do so then the provisions of otherwise relevant legislation will continue to apply.324 The Illegal Logging Prohibition Act 2012 (Cth) addresses the importation of timber into Australia that has been illegally logged325 according to laws in its country of origin. It is an offence to import into Australia illegally logged timber or anything made from or including such timber,326 or process illegally harvested raw logs.327 Importers and processors are required to have due diligence systems in place that help them to identify illegally logged timber, before importing or processing regulated timber products or raw logs.328

Soil conservation 18.77 Protection of soils can be advanced in a number of ways. The most obvious is through legislation dealing with land degradation, where erosion

on private land can be made subject to administrative orders for rehabilitation329 and property agreements with landowners.330 Special provision may be made for remedial or other soil conservation works in declared erosion hazard or other project areas.331 The trend towards integrated management of natural resources also includes soil conservation as a feature of native vegetation and water resource management.332 Landowners may also be placed under a general duty of care for land management that may be enforced by the issue of administrative orders.333 18.78 Soil protection can also be advanced through the planning system; for example, by restricting development in areas of prime agricultural land,334 or by [page 801] restricting the types of agricultural or other pursuits that can be carried on in relation to certain soil types. In Hub Action Group Inc v Minister for Planning [2008] NSWLEC 116 at [39], for example, Preston CJ quoted from the Department of Primary Industry New South Wales publication ‘Agfacts’: This five class system used by NSW Agriculture classifies land in terms of its suitability for general agricultural use. This system was developed specifically to meet the objectives of the Environmental Planning and Assessment Act 1979, in particular 5(a) (i) ‘to encourage the proper management, development and conservation of natural and man-made resources, including agricultural land … for the purpose of promoting social and economic welfare of the community and a better environment’.335

The court then refused to allow a landfill to be developed on prime crop and pasture land, referring to the ‘intergenerational equity’ argument against such a proposal. In Victoria, proposals for the use of land for blue gum plantations (encouraged by federal grants) has frequently thrown up questions about the advisability of such plantations given their soil and water needs and consequent effects on the surrounding environment.336 Soil erosion from landslip337 and coastal inundation338 are of course relevant matters for consideration of all proposals for ‘development’.

1.

See 18.31.

2.

See further 2.36 and following.

3.

Fisher, Water Law, LBC, Sydney, 2000; Gardner et al, Water Resources Law, LexisNexis Butterworths, Sydney, 2009.

4.

Gullett, Fisheries Law in Australia, LexisNexis, Butterworths, Sydney, 2008.

5.

Gullett, Schofield and Vince (eds), Marine Resources Management, LexisNexis, Butterworths, 2011.

6.

See Martin and Williams, ‘Science Hubris and Insufficient Legal Safeguards’ (2014) 31 EPLJ 311.

7.

For example, Mineral Resources Act 1989 (Qld) s 383 (certain wild river areas excluded from mining tenements); National Parks and Wildlife Act 1974 (NSW) (NPWA) s 41 (unlawful to prospect for or mine for minerals in national parks and historic sites); Fisheries Act 1995 (Vic) s 89 (order in council may prohibit or regulate fishing in fisheries reserves).

8.

Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 112 ALR 211.

9.

See Booth v Bosworth [2001] FCA 1453.

10. Mining Act 1992 (NSW) s 238. 11. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 112B (consultation with the Minister for the Environment); s 112C (activities by or permitted by determining authorities that might significantly affect threatened species, or in respect of critical habitat, are subject to the concurrence of the Director-General of National Parks and Wildlife). 12. Water Management Act 2000 (NSW) s 34(1)(f). 13. See, for example, Environmental Protection Act 1994 (Qld) Ch 5 (environmental authorities for mining activities); Ellis, ‘Integration of Natural Resources Management under Queensland Mining Legislation’ (2003) 20 EPLJ 66; Protection of the Environment Operations Act 1997 (NSW) Sch 3 (logging operations). 14. Water Management Act 2000 (NSW) s 34; Sydney Water Catchment Management Act 1998 s 53 (creation of regional plan under EPAA to regulate development). 15. Fisheries Management Act 1991 (Cth) ss 3 and 16 (AFMA must pursue objectives); Fisheries Management Act 1994 (NSW) s 3; Fisheries Act 1995 (Vic) s 3; Fisheries Act 1994 (Qld) s 3. 16. Fisheries Management Act 1994 (NSW) s 30(2). 17. For policies and strategies on addressing bycatch, see ; see also Gullett, ‘Enforcing Bycatch Reduction in Trawl Fisheries: Legislating for the Use of Turtle Excluder Devices’ (2003) 20 EPLJ 195. 18. Fisheries Management Act 1994 (NSW) Pt 7; Fisheries Act 1994 (Qld) Pt 6. 19. Now prohibited in the Australian Fishing Zone (defined in s 4) under the Fisheries Management Act 1991 (Cth) s 13. 20. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) Pt 5A. 21. Fisheries Management Act 1994 (NSW) Pt 7 Div 2; Fisheries Act 1995 (Vic) ss 88 and 89. 22. Fisheries Management Act 1994 (NSW) Pt 7A; Fisheries Act 1995 (Vic) ss 69–73. 23. Fisheries Act 1994 (Qld) ss 38A and 45A. 24. See 9.64. 25. See . 26. See . 27. See . 28. Grant and Papadakis, ‘Transforming Environmental Governance in a “Laggard” State’ (2004) 21 EPLJ 144. 29. See Martin and Gunningham, ‘Leading Reform of Natural Resource Management Law: Core Principles’ (2011) 28 EPLJ 137 at 143. 30. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) Pt 4 Div 5. 31. See 10.52 and following.

32. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 79B, 112B and 112C. 33. For example, Sustainable Planning Regulation 2009 (Qld) Sch 7. 34. Native Vegetation Act 2003 (NSW) (NVA) s 12; Water Management Act 2000 (NSW) s 34. And see Davies et al, ‘Urban Rivers and Riparian Systems: Directions and Recommendations for Legislators, Policy Makers, Developers and Community Users’ (2011) 28 EPLJ 313. 35. See, for example, Ballina Shire Council v Freeden (2006) 147 LGERA 297; Hanwood Pastoral Co Pty Ltd v Director-General, Department of Natural Resources (2005) 144 LGERA 139; Rowe v Lindner [2006] SASC 176. 36. See 5.64. 37. Section 9. 38. Section 5. In Silva v Ku-ring-gai Council [2009] NSWLEC 1060 at [67], it was pointed out that where watercourses drain predominantly to larger receiving water sources in national parks, it is good management practice to protect, restore, maintain these systems while simultaneously mitigating any further negative impacts on watercourses and their riparian habitats. Such management objectives are synonymous with ecological sustainable development and the objects and principles of the WMA. 39. See, for example, ss 23, 26 and 29. 40. Water Act 2000 (Qld) Ch 3. 41. Natural Resources Management Act 2004 (SA) s 9(1), (2)(g). 42. See, for example, SHCAG Pty Ltd v Hume Coal Pty Ltd [2015] NSWLEC 122 (cumulative impacts of drilling for coal). See also Rozen v Macedon Ranges Shire Council [2009] VCAT 2746 (cumulative impacts of otherwise individually acceptable septic tank systems); The Sisters Wind Farm Pty Ltd v Moyne Shire Council [2010] VCAT 719 (cumulative impacts of wind farm); Arora Construction Pty Ltd v Gold Coast City Council [2012] QPEC 52 (cumulative effects of local development within a floodplain); King v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Ltd v Minister for Planning [2010] NSWLEC 1102 (cumulative impacts of wind farm). 43. See, for example, Water Administration Ministerial Corp v Auburn Council [2000] NSWLEC 76. 44. For example, Water Management Act 2000 (NSW) (WMA) ss 392 and 393. Regulatory schemes for water management are likely to be interpreted in a way that prioritises the public interest over private claims to access to water: see, for example, Ashworth v Victoria [2003] VSC 194. These regulatory schemes focus particularly on commercial and industrial uses, and although domestic riparian rights at common law are also abolished (see Ashworth v Victoria above), the legislation may return effectively similar rights for domestic only consumption; for example, Water Management Act 2000 (NSW) ss 52–54. See also Environment Protection Authority v Rashleigh [2005] ACTCA 42. 45. WMA s 3. In an article entitled ‘The Constitutionalisation of Water Rights: Solution or Levee?’ available on the Land and Environment Court website at the Hon Justice Pepper of the NSWLEC argues that constitutional underpinnings about water use in Australia have been responsible for the failure to manage water sustainably. On strategic planning see Chapter 9. 46. It has been argued that properly designed water laws are the superior tool for securing water for wetlands; see Bennett and Gardner, ‘How do Environmental Conservation Laws Interact with Environmental Aspects of Water Laws?’ (2014) 31 EPLJ 3. See also Holley and Sinclair, ‘Deliberative Participation, Environmental Law and Collaborative Governance: Insights from Surface and Groundwater Studies’ (2013) 30 ERPLJ 32; Lee, ‘Theory to Practice: Adaptive

Management of the Groundwater Impacts of Australian Mining Projects’ (2014) 31 EPLJ 251. 47. And see Fisher, ‘Markets, Water Rights and Sustainable Development’ (2006) 23 EPLJ 100; Fisher, ‘Water Resources Governance and the Law’ (2006) 11(1) AJNRLP 1. 48. And see Connell et al, ‘A Critical Analysis of the National Water Initiative’ (2005) 10(1) AJNRLP 81. 49. And see Herbert, ‘Risk of Future Reduction in Water Availability from the Consumptive Pool: Current Issues and Approaches in New South Wales’ (2005) 22 EPLJ 444. 50. For example, Water Management Act 2000 (NSW) s 49A. 51. NWI cl 48; reproduced in Water Act 2007 (Cth) Sch 3A. 52. NWI cll 49 and 50; Water Act 2007 (Cth) Sch 3A. Reductions of water entitlements by governments under traditional licensing arrangements are not to be regarded as acquisitions of property and therefore do not trigger legal obligations to pay compensation. However, ‘structural adjustment’ payments may be offered to affected licence holders: see ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51. 53. And see Gardner, ‘Environmental Water Allocations in Australia’ (2006) 23 EPLJ 210; Gardner et al, ‘Pricing Water for Environmental Externalities in Western Australia’ (2006) 23 EPLJ 309; Foerster ‘Victoria’s New Environmental Water Reserve: What’s in a Name?’ (2007) 11 AJNRLP 145; Foerster, ‘Managing and Protecting Environmental Water: Lessons from the Gwydir for Ecologically Sustainable Water Management in the Murray–Darling Basin’ (2008) 25 EPLJ 58. 54. And see Tan, ‘An Historical Introduction to Water Reform in NSW: 1975–1994’ (2002) 19 EPLJ 445. 55. Water Management Act 2000 (NSW) s 8(1)(a), (1A), (2) explain how such commitment is to be made by a management plan. 56. Section 8(2), (4). Sections 8B–8E indicate how adaptive environmental water may be created. 57. An access licence does not confer a right to use water for a particular purpose; that is, the role of a water use approval: see ss 56 and 89. 58. Section 20. The details of water sharing plans for each water source are published as statutory instruments (regulations). 59. Section 7(3). 60. Sections 8(2) and 20(1). 61. Section 9(2). 62. Section 6. And see Nature Conservation Council of New South Wales v Minister Administering the Water Management Act 2000 (2005) 137 LGERA 320 (NSWCA), where the policy set out in the SWMOP was used to analyse the validity of a water sharing plan. 63. Sections 22–24. 64. Sections 25–27. 65. Sections 28–30. And see Orgill, ‘(Re)investing in Disaster: The Environmental and Socio-economic Consequences of Deregulating the Development of Riparian and Flood-prone Lands in New South Wales’ (2015) 32 EPLJ 144. 66. Sections 31–33. 67. Section 17. 68. Criteria for consideration in drawing up management plans also include socioeconomic impacts, as well as the provisions of catchment management plans: s 18. It has been argued that two of the failures of environment protection are in relation to riparian corridors and floodplains; see Ives et

al, ‘A Setback for River and Riparian Ecosystems: A Response to the New South Wales Office of Water 2012 Policy on Riparian Corridors’ (2013) 30 EPLJ 122; Orgill, ‘(Re)investing in Disaster: The Environmental and Socio-economic Consequences of Deregulating the Development of Riparian and Flood-prone Lands in New South Wales’ (2015) 32 EPLJ 144. 69. Section 34. 70. Sections 11–15. 71. Section 41; subject to the concurrence of the Minister for Climate Change and the Environment: s 41(2). 72. Section 50. 73. See, for example, Murrumbidgee Horticulture Council Inc v Minister for Land and Water Conservation [2003] NSWLEC 213 (inconsistency of water sharing plan with the whole of the SWMOP admitted to be difficult to prove because the use of ‘targets’ in the SWMOP did not appear to express binding rules). A plan may, however, be deemed to be inconsistent with a regulation, in which case the regulation is likely to prevail, at least if the plan has not gone through some process of parliamentary approval: see Green v Minister for Climate Change, Environment and Water [2008] NSWLEC 48. 74. Harvey v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165; Tubbo Pty Ltd v Minister Administering the Water Management Act 2000; Harvey v Minister Administering the Water Management Act 2000 [2008] NSWCA 356. And on procedural fairness, see 22.31. 75. Nature Conservation Council of New South Wales Inc v Minister Administering the Water Management Act 2000 [2005] NSWCA 9. 76. Nature Conservation Council of New South Wales Inc v Minister Administering the Water Management Act 2000 [2005] NSWCA 9 at [90]. 77. Minister for the Environment and Conservation v Simes (2007) 153 LGERA 225. A decision on a water allocation may, for example, be challenged on grounds of irrelevancy: see Draycott Pty Ltd v Minister for Environment and Conservation [2007] SASC 463. 78. See Glengyle Proprietors Pty Ltd v Minister for Environment and Conservation [2009] SASC 376. 79. For example, Lindner & Whetstone v Regional Council of Goyder [2005] SAERDC 115. 80. See, for example, More and Water and Rivers Commission [2006] WASAT 112. See also Godden, ‘Water Law Reform in Australia and South Africa: Sustainability, Efficiency and Social Justice’ (2005) 17 JEL 181; Rochford, ‘Sustainable Rural Water Delivery: Balancing Resource and Social Sustainability’ (2008) 12(1) AJNRLP 59. 81. See, for example, Bates v Southern Rural Water [2004] VCAT 2045; Leonard v Southern Rural Water [2007] VCAT 1562. 82. There are various categories of access licence accorded different priorities in terms of allocation (ss 57 and 58); though priorities may be varied by a management plan: s 58(3). 83. Section 63. 84. Section 71Z and see Access Licence Dealings Principles Order 2004 (NSW). 85. Section 96; except for aquifers; Water Management (General) Regulations 2004 (NSW) reg 33. 86. Sections 86–87A. 87. Water Act 1989 (Vic); Water Resources Act 2007 (ACT); Water Act 2000 (Qld); Natural Resources Management Act 2004 (SA); Water Management Act 1999 (Tas); Rights in Water and Irrigation Act 1914 (WA); Water Act (NT). 88. See Chapter 3. 89. See .

90. Progress on water recovery can be tracked at . 91. See . 92. For a useful summary of the history, see Gardner, ‘Editorial’ (2012) 29 EPLJ 263; Bonyhady, ‘Putting the Environment First?’ (2012) 29 EPLJ 316. And on the constitutional background and jurisdiction of the High Court, see Webster and Williams, ‘Can the High Court Save the River Murray?’ (2012) 29 EPLJ 281. 93. And see also Scanlon, ‘A Hundred Years of Negotiations with No End in Sight: Where is the Murray Darling Basin Initiative Leading Us?’ (2006) 23 EPLJ 386; Pye, ‘Water Trading Along the Murray: A South Australian Perspective’ (2006) 23 EPLJ 131; Kelly, ‘A Bridge? The Troubled History of Inter-state Water Resources and Constitutional Limitations on State Water Use’ (2007) 30 UNSWLJ 641. 94. See also Macintosh and Cunliffe, ‘The Significance of ICM in the Evolution of s 51(xxxi)’ (2012) 29 EPLJ 297; Preston-Samson, ‘Navigating Muddy Waters: Does the High Court have a Role in Adjudicating Interstate River Disputes?’ (2012) 29 EPLJ 373. And on rights to compensation, see further 2.16. 95. Agreement on Murray–Darling Basin Reform, COAG, 2 July 2008. 96. The agreement is set out in the Water Act 2007 (Cth) Sch 1. Referral to the Commonwealth is effected by the Water (Commonwealth Powers) Acts 2008 (NSW, Qld, Vic, SA). Schedule B of the Agreement implements aspects of the Basin Salinity Management Strategy 2001–2015 by adopting salinity targets, promoting efforts to reduce or limit the rate at which salinity increases within the Basin, and by allowing salinity credits and debits to be traded between contracting governments. 97. Part 6. 98. Section 105(2); subject to environmental watering plans and schedules: s 105(4). 99. Sections 4 (‘relevant international agreements’) and 105(3). Environmental water may also be released by agreement with a state and to return water to the Snowy River: s 105(5). It has been argued that implementation of the provisions of the Water Act is in fact failing to maintain the ecological character of Ramsar sites in breach of the Convention: see Pittock et al, ‘Changing Character: The Ramsar Convention on Wetlands and Climate Change in the Murray–Darling Basin, Australia’ (2010) 27 EPLJ 401. Following release of the Basin Plan, Rothwell, ‘International Law and the Murray–Darling Basin Plan’ (2012) 29 EPLJ 268 at 275, however, argues that ‘The Basin Plan makes multiple detailed references throughout to the Ramsar convention, with particular reference to the protection and restoration of water-dependent ecosystems, water quality objectives for Basin water resources, and water quality targets. Given the extent of Australia’s obligations under the Ramsar Convention … there is a strong correlation between the Ramsar Convention, the Water Act and the Basin Plan with respect to how Australia has sought to implement its Ramsar obligations’. 100. Section 6. 101. A ‘Guide to the Proposed Basin Plan’ was released in October 2010, with further amendments consequent upon further consultation and a House of Representatives, Standing Committee on Regional Australia, report ‘Of Drought and Flooding Rains: Inquiry into the Impact of the Guide to the Murray–Darling Basin Plan’, May, 2011. The Final Basin Plan was presented to the minister in November 2012: see . The latest version of the Basin Plan states that it reaffirms the importance of climate change considerations and specifically requires up-to-date assessments of climate change risks in future reviews of the plan. Recovery of environmental water is designed to restore resilience of the environment. The adaptive management framework of the plan enables changes in the future in response to new assessments of climate change.

102. Section 20. 103. Section 21(5). 104. Section 21. 105. Part 2A. 106. Defined as the needs for a minimum amount of water, that can only reasonably be provided from Basin water resources, required to meet (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: s 86A(2). 107. Section 86A(1). 108. Defined in s 4 as an area that: (a) contains part of the Basin water resources; and (b) is specified in the Basin Plan as an area that is a water resource plan area. 109. Sections 54 and 55. 110. Sections 56 and 63–70. 111. Sections 74–86; Sch 3A. The Commonwealth obligation under Sch 3A varies the NWI by taking on additional risk, after the initial 3 per cent, of 100 per cent of reductions attributable to ‘new knowledge’ of water systems: see Sch 3A Pt 2. 112. Schedule 3 cl 3. 113. Schedule 3 cl 4. 114. Schedule 3 cl 6. 115. See Gray, ‘The Legal Framework for Water Trading in the Murray–Darling Basin: An Overwhelming Success?’ (2012) 29 EPLJ 328 at 330. 116. Part 2AA. 117. Section 86AA(3). 118. These include: (i)

improving the water efficiency of the infrastructure that uses Basin water resources for irrigation;

(ii) improving or modifying any infrastructure (including bridges and roads) that constrains the delivery of environmental water to the environmental assets of the Murray–Darling Basin in order to ease or remove those constraints; (iii) better utilising existing dams and storages to deliver environmental water to the environmental assets of the Murray–Darling Basin; (iv) purchasing water access rights in relation to Basin water resources for the purpose of furthering the object of this Part; and (v) making payments to address any detrimental social or economic impact on the wellbeing of any community in the Murray–Darling Basin that is associated with a project or purchase; s 86AD. See further . 119. See Martin and Gunningham, ‘Leading Reform of Natural Resource Management Law: Core Principles’ (2011) 28 EPLJ 137 at 154–6. See also Bonyhady, ‘Putting the Environment First?’ (2012) 29 EPLJ 316. 120. Martin and Gunningham, note 119 above, at 156. 121. Section 8; and see Water Efficiency Labelling and Standards Acts 2005 (NSW, Vic); 2013 (SA), (Tas); 2014 (NT); 2015 (ACT); Water Efficiency Labelling and Standards Acts 2006 (WA).

122. Section 18. 123. Sections 26–33. 124. Section 35. 125. Section 34. 126. Section 34A ‘designated water users’. 127. Section 34Q(1); Water Savings Order 2005 (NSW) reg 5. Designated businesses and local councils are listed in Schs 1 and 2. 128. Section 34S. 129. Section 34V(3). There are no regulations or orders that require this. 130. See Gunningham and Sinclair, ‘Water Efficiency Plans: Policy and Practice’ (2010) 27 EPLJ 331 at 332. The authors report that this approach is ‘seriously flawed’; completion of the Water Efficiency Plan is likely to be regarded as an end in itself and the plan will simply gather dust on the shelf rather than achieve any positive outcomes: at 333. 131. See ‘Water Efficiency Management Plan’, templates and guidelines available at . 132. Gunningham and Sinclair (see note 130 above) report that absolute performance targets of this type (a 25 per cent reduction under the Queensland scheme) fail to take account of changed business and economic circumstances, and the ‘best practice’ alternative provides an opportunity to avoid genuine water reductions through untestable claims of best practice. The authors favour an approach that obliges participants to implement identified water savings within a specified period (three years or less) referred to as the ‘maximum payback model’: at 334. 133. Gunningham and Sinclair, note 130 above, at 343. 134. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (NSW). 135. Planning and Assessment Regulation 2000 (NSW) s 164A. 136. EPAR Sch 1 reg 2A. 137. EPAR regs 97A and 136D. Failure to lodge a BASIX certificate where one is required would certainly justify the consent authority rejecting the application (see reg 51), though the legislation does not specifically prohibit the consent authority dealing with it. In such a case, the ability of the consent authority to issue a consent without having a BASIX certificate would seem to hinge on the principles discussed at 22.46. 138. Although to date pricing principles seem to give more credence to costs recovery rather than any particular environmental criteria: see, for example, Water Industry Competition Act 2006 (NSW) s 41. 139. See . 140. For example, Sydney Water’s rainwater tank rebate program, which ended in 2011, invested over $24 million in rebates over a 10-year period. 141. See, for example, Australian Guidelines for Water Recycling at ; Smart Approved WaterMark scheme for household and gardening equipment: . 142. See, for example, Water Industry Competition Act 2006 (NSW) s 7. And see Bancroft and Gardner, ‘Opportunities and Obligations for Residential Developers to Undertake Wastewater Recycling and Stormwater Capture: A Western Australian Perspective’ (2015) 32 EPLJ 372. 143. For more detailed coverage of fisheries law, see Gullett, Fisheries Law in Australia, LexisNexis Butterworths, Sydney, 2008.

144. See 4.25. 145. To view assessments of Australian managed fisheries, go to . 146. See de Hosson, ‘The Limits of Merits Review and the EPBC Act: Grey Nurse Sharks, Fisheries and the AAT’ (2010) 27 EPLJ 223 at 226. 147. Available at . 148. Environment Protection and Biodiversity Conservation Act 1999 (EPBCA) s 303FN(3). 149. Environment Protection and Biodiversity Conservation Act 1999 (EPBCA) ss 390SD–390SF. 150. Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2014] FCA 117 at [31]; and for further detail see at [47]. The Fisheries Management Amendment (Supertrawler) Regulation 2015 now make it an offence under the Fisheries Management Regulations 1992 (Cth) for fishing vessels over 130 metres in length to engage in fishing-related activities in the Australian Fishing Zone. The maximum penalty for the new offence under reg 4D, however, is just 25 penalty units, about $4250. The new offence prescribes only the length of the vessel, not storage capacity, which may be a better indicator of potential impacts than length. 151. See further . 152. Though as de Hosson notes (note 146 above, at 231) since the OTLF contributes significantly to the number of shark deaths per year, accelerating extinction of the species, it could be argued that the operation is detrimental in comparison to the position the shark would otherwise be in. The author, however, also points out (at 240) that New South Wales has since implemented additional measures for protection of the shark. 153. Fisheries Management Act 1991 (Cth) ss 61–81. For a complete view of all Commonwealth and state-managed fisheries, go to . 154. For example, Fisheries Management Act 1991 (Cth) s 17. Plans of management are legislative instruments: see Lamason v Australian Fisheries Management Authority [2009] FCA 245 at [149]– [150]. Such matters may also be dealt with by general regulation; for example, Fisheries Management Act 1994 (NSW) Pt 2. 155. Certain fishing methods may be absolutely prohibited; for example, drift-net fishing: see ss 13, 15 and 15A. 156. Fisheries Management Act 1991 (Cth) s 17(6D). And see Gullett, ‘Enforcing Bycatch Reduction in Trawl Fisheries: Legislating for the Use of Turtle Exclusion Devices’ (2003) 20 EPLJ 195; Bache, ‘Current Australian Policy on Marine Wildlife Bycatch’ (2005) 22 EPLJ 212. 157. For example, Fisheries Management Act 1991 (Cth) ss 17(5) and 17(5AA); Fisheries Management Act 1994 (NSW) s 57; Fisheries Management Act 2007 (SA) s 43. 158. For example, Fisheries Management Act 1991 (Cth) s 17(9); Fisheries Management Act 2007 (SA) s 43. In 2001, Commonwealth plans moved from regulation by input controls to regulation by output controls. This, and the introduction of a buy-back scheme for fishers who no longer wished to participate in the new scheme, was described by Downes J in Re Fischer and Australian Fisheries Management Authority; Re Tapley and Australian Fisheries Management Authority [2005] AATA 936; (2005) 41 AAR 417. 159. Section 3. 160. This objective has been interpreted as requiring a focus on long-term economic efficiency as a whole, not on maximising returns for individual operators: see Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 77 FCR 503; Latitude Fisheries Pty Ltd v Australian Fisheries Management Authority [2002] FCA 416; Re Wait and Australian Fisheries

Management Authority (2002) AATA 159. Though this does not mean of course that the economic effect on participants in the fishing industry is irrelevant to a decision to be taken by AFMA in the management of a fishery: see Australian Fisheries Management Authority v Graham [2003] FCA 231; or that individual, even exceptional, circumstances are not relevant factors: see White and Australian Fisheries Management Authority (2005) AATA 174; Re Clark and Australian Fisheries Management Authority [2006] AATA 597. 161. Sections 3 and 16. ‘Pursue’ has been interpreted as conferring an obligation to ‘try to attain’ the relevant objective: see Re O’Halloran and Australian Fisheries Management Authority [2002] AATA 160 at [56]. And on pursuing objectives of legislation generally, see 7.21. 162. And see Peel, ‘Taking a Precautionary Approach in Fisheries Management’ in Peel, The Precautionary Principle in Practice, Federation Press, Sydney, 2005, Ch 5. 163. See, for example, Australian Fisheries Management Authority v PW Adams Pty Ltd [1995] FCA 1765; Latitude Fisheries Pty Ltd v Australian Fisheries Management Authority [2002] FCA 416. 164. See also Re Green and Australian Fisheries Management Authority [2004] AATA 426; Re Green and Australian Fisheries Management Authority [2008] AATA 1074. 165. See also Re De Brett Investments Pty Ltd and Australian Fisheries Management Authority [2004] AATA 704. And on what might be interpreted as a cautionary, if not precautionary, approach, see Dixon and Australian Fisheries Management Authority and Executive Director of Fisheries Western Australia and Northern Territory of Australia [2000] AATA 442; Re Justice and Australian Fisheries Management Authority and Department of Fisheries Western Australia [2002] AATA 49. 166. Fischer and Australian Fisheries Management Authority [2005] AATA 936 at [107]. 167. In New South Wales, EA of designated fishing activities must be undertaken in accordance with the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) Pt 5 Div 5. Designated activities comprise fishing activities for commercial purposes in a share management fishery specified in Sch 1; and stocking waters with fish: Sch 1A. A draft fishery management strategy is required for a designated fishing activity that is the subject of such an EA: Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 115J(2). 168. For example, Fisheries Management Act 2007 (SA) s 50; and see Australian Fisheries Management Authority v Gilmore [2009] FCA 1369. 169. For example, Fisheries Management Act 1991 (Cth) Pt 3; Fisheries Management Act 1994 (NSW) Pt 3 (commercial share management fisheries), s 71 (transfers); Fish Resources Management Act 1994 (WA) s 68 (requirement that authorisation must be renewed); s 140 (transfer of authorisations) and see Harper v Minister for Sea Fisheries [1989] HCA 47. 170. Fisheries Management Act 1991 (Cth) s 31(10). 171. For example, Fisheries Management Act 1991 (Cth) s 34; Fisheries Management Act 1994 (NSW) s 104. 172. For example, Fisheries Act 1995 (Vic) s 56. 173. In Altamura v Director of Fisheries Policy, South Australia [2003] SASC 277, the court rejected an argument that the plaintiff’s rights under his fishing licence constituted a ‘privilege in, under or over land or affecting or in connection with land’, such that compensation would be payable under the Land Acquisition Act 1969 (SA). 174. For example, Fisheries Act 1994 (Qld) s 42A; Fisheries Act 1995 (Vic) s 153B; and see Stockdale v Alesios [1999] VSCA 128. See also Fishing and Related Industries Compensation (Marine Reserves) Act 1997 (WA), providing for compensation where fisheries entitlements must be restricted because of the operation of plans of management for marine reserves. 175. Fisheries Management Act 1991 (Cth) s 22(3)(e); Fisheries Management Act 1994 (NSW) s 115. 176. The legislative scheme and the operation of this arrangement were explained by Ryan J in Alcock v

Commonwealth [2009] FCA 820 at [4]–[8]. 177. See, for example, McEachern v Minister for Energy and Resources, and Ports [2001] VSC 506, where the court held that the minister had misconstrued his power to revoke an initial quota order under the Fisheries Act 1995 (Vic) s 64. 178. See also Dighton v South Australia [2000] SASC 194. 179. See England, ‘Too Much Too Soon? On the Rise and Fall of Australia’s Coastal Climate Change Law’ (2013) 30 EPLJ 390; Foerster et al, ‘Transferable Lessons for Climate Change Adaptation Planning? Managing Bushfire and Coastal Climate Hazards in Australia’ (2013) 30 EPLJ 469; O’Donnell et al, ‘Getting the Balance Right: A Renewed Need for the Public Interest Test in Addressing Coastal Climate Change and Sea Level Rise’ (2013) 30 EPLJ 220. On climate change see further Chapter 17. 180. Foreword to the National Cooperative Approach to Integrated Coastal Zone Management — Framework and Implementation Plan, Commonwealth of Australia, 2006, developed by the Natural Resource Management Ministerial Council. 181. Identified as priorities for action by the Plan in note 180 above. 182. Available at . 183. Three nautical miles: see 5.29. 184. Coastal Protection and Management Act 1995 (Qld) s 15. 185. Coastal Protection Act 1979 (NSW). 186. Defined in s 3. 187. See Lipman and Stokes, ‘That Sinking Feeling: A Legal Assessment of the Coastal Planning System in New South Wales’ (2011) 28 EPLJ 481. 188. Sections 37A and 54A. 189. Sections 55A–55L. 190. Section 55K. 191. Including state and local government: s 4. 192. Sections 37–47. These provisions do not apply to development governed by the Environmental Planning and Assessment Act 1979 (NSW) (EPAA); s 37B. 193. Section 55. 194. Section Coastal Protection Regulation 2011 (NSW) regs 5 and 6. 195. Coastal Protection Act 1979 (NSW) ss 55O–55ZH. 196. Sections 55P and 55R. 197. Sections 55O and 55W. The works must then be removed and the land restored, unless otherwise permitted under the Environmental Planning and Assessment Act 1979 (NSW) (EPAA): s 55VC. ‘Temporary’ is not defined. It used to mean 12 months, but this provision has been removed. 198. Sections 6 (definition of ‘coastal authority’ includes the minister, a local authority and a public authority); 55ZC. Similar powers apply to any non-emergency coastal protection works; ss 55ZA and 55ZB. The Land and Environment Court may make restoration orders that include ordering a person to remove or clean up material dumped during or following a beach erosion event; s 56A. 199. Section 55M. 200. Coastal Protection Regulation 2011 (NSW) Pt 3, referring to the Code of Practice under the Coastal Protection Act 1979 OEH, 2013. Available at . 201. Coastal Protection Act 1979 (NSW) s 12. 202. Coastal Protection Act 1979 (NSW) s 13. 203. Local Government Act 1993 s 733(2), (3)(b), (3)f, (3)(f2–f6). And for further discussion on ‘exemption clauses’, see 3.40. 204. Coastal Protection and Management Act 1995 (Qld) s 20. The plan must be implemented by the chief executive; s 34. The Coastal Management Plan 2014, available at , provides non-regulatory advice for coastal land managers. For development under the Sustainable Development Act 1999 (Qld). 205. Section 21. 206. Section 4. A useful summary of former and current planning documents relating to the coast is set out in Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPEC 26, where the court rejected a proposal for a large integrated resort and residential community on the basis of potential exposure to erosion, storm surge and climate change related sea level rise. 207. Available at . If there is an inconsistency between a State Planning Regulatory Provision (SPRP) and another planning instrument, the SPRP prevails to the extent of that inconsistency; Sustainable Planning Act 1999 (Qld) s 19(1). 208. Coastal Protection and Management Act 1995 (Qld) ss 103, 104 and 106; and see, for example, Reef Cove Resort Pty Ltd v Cairns City Council [2007] QPEC 77. 209. Sections 75 and 100A. 210. Sections 54 and 59. And on ‘coastal management district’, see Wall, Director-General of the Environmental Protection Agency v Douglas Shire Council [2008] QCA 56; Coastal Protection and Management Regulation 2003 (Qld) reg 4A. 211. Coastal Protection State Planning Regulatory Provision 2013 s 2.2.4. Criteria for assessing development in a coastal management district are set out in Coastal Protection State Planning Regulatory Provision 2013 Pt 3. 212. Section 70. 213. See De Wit and Webb, ‘Planning for Coastal Climate Change in Victoria’ (2010) 27 EPLJ 23. 214. Available at . 215. Coastal Management Act 1995 (Vic) Pt 3. 216. The VCS 2014 addresses five key issues: managing population growth, adapting to climate change, managing coastal land & infrastructure, valuing the natural environment and integrating marine planning. 217. Defined as land reserved for coastal protection or within 200 metres of the high water mark: s 3. 218. Section 37; Planning and Environment Act 1987 (Vic) s 61(3)(a) (the responsible authority and, upon review, the tribunal, must not grant a permit to use or develop coastal Crown land within the meaning of the Coastal Management Act 1995 (Vic) unless the minister administering that Act has consented to the use or development). And see Friends of Mallacoota Inc v Minister of Planning and Minister for Environment and Climate Change [2010] VSC 222. 219. Section 8. 220. Land forming part of the coast is defined in the Coast Protection Regulations (SA) 2015 reg 4. 221. Coast Protection Act 1972 (SA) s 19. 222. Section 20.

223. Section 21. 224. See Coast Protection Board Policy Document 2012 p 9; referred to at note 211. 225. Coast Protection Board Policy Document 2012 Sch 8, Table 2. 226. Development Act 1993 (SA) s 37; Development Regulations 2008 (SA) Sch 8, Table 2. And see, for example, Daletta Pty Ltd v District Council of the Copper Coast [2007] SAERDC 2; Alexander v District Council of Robe [2009] SAERDC 4. And see Watson, ‘Practical Precautions, Reasonable Responses: How South Australia’s Planning Regime Adapts to the Coastal Impacts of Climate Change’ 2015 (32) EPLJ 256. 227. See . 228. Available at . 229. See . 230. Part 5. The Policy applies to the ‘coastal zone’, which consists of state waters and all land to a distance of one kilometre inland from the high water mark: State Coastal Policy Validation Act 2003 (Tas) s 5. And on the interpretation of the Coastal Policy and state policies generally, see Attorney-General (Tas) v Cameron [2007] TASSC 22. 231. Richard G Bejah Insurance & Financial Services Pty Ltd v Manning (2002) TASSC 36. See also WJ Manning and The Friends of Four Mile Creek Bushcare Group Inc v Break O’Day Council and Morris Nunn & Associates obo R Bejah [2006] TASRMPAT 26. 232. See, for example, Southern Cross Marine Culture Pty Ltd v Sorell Council [2006] TASRMPAT 250; SM Wicks v Tasman Council and Peacock Darcey & Anderson Pty Ltd; G Cousins v Tasman Council and Peacock Darcey & Anderson Pty Ltd; P Leishman-Fenerty v Tasman Council and Peacock Darcey & Anderson Pty Ltd [2008] TASRMPAT 117; N Johnston v Glamorgan/Spring Bay Council; N Johnston and T Lee v Glamorgan/Spring Bay Council [2009] TASRMPAT 95. 233. See . 234. Section 77. 235. Section 116. 236. Policy 5.5. 237. Policy 5.10. The policy also gives setback guidelines (for calculating the component of the coastal foreshore reserve required to allow for coastal processes), Sch 1. See also Moore River Company Pty Ltd v Western Australian Planning Commission [2007] WASAT 98. 238. See Leadbeter, ‘Is the Fox Still Guarding the Henhouse? Mining and Environmental Protection in South Australia’ (2013) 30 EPLJ 3. 239. State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (Resource Significance) 2013 (NSW). This reaction was triggered by the Land and Environment Court decision (upheld by the Court of Appeal) in Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Ltd [2013] NSWLEC 48. 240. State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (Significance of Resource) 2015 (NSW). 241. See Orgill, ‘The Perils of Fast-tracking Mining Development: An Examination of the Mining SEPP “Resource Significance” Amendments’ (2015) 32 EPLJ 486. 242. In Tasmania, for example, under the Mineral Resources Development Act 1995 (Tas) s 75(3)(f), although an application for a mining lease cannot be granted unless the director has been provided with sufficient information relating to the likely impact on the environment, the legislation stops

short of indicating what has to be done with this information. 243. For example, Petroleum (Offshore) Act 1982 (NSW); Petroleum Act 1923 (Qld). This means that whatever environmental controls are applicable to a project must be sought through other relevant legislation applying to the project. The legislation may indicate its relationship with environmental legislation; for example, Petroleum Act 1923 (Qld) ss 4 (certain provisions of the Nature Conservation Amendment Act 2004 (Qld) prevail) and 80J (applicant must be holder of relevant environmental authorities under the Environmental Protection Act 1994 (Qld)); but often it does not. 244. For example, Mining Act 1992 (NSW) s 237; Offshore Minerals Act 1999 (NSW) s 38B(1); Mining Act 1971 (SA) s 10B; Petroleum Pipelines Act 1969 (WA) s 10. In the Northern Territory, the opinion of the Environment Minister must be taken into account, but in respect of wilderness areas the Environment Minister can give directions: Petroleum Act (NT) s 15; Mining Act 1980 (NT) s 176A. 245. For example, Mining Act 1992 (NSW) s 238; Offshore Minerals Act 1999 (NSW) s 38B(2). 246. For example, Offshore Minerals Act 1994 (Cth) ss 118, 177, 254 and 304 (these provisions are repeated in state legislation; for example, Offshore Minerals Act 1998 (Qld); Mineral Resources (Sustainable Development) Act 1990 (Vic) ss 26 and 41A; Petroleum (Onshore) Act 1991 (NSW) s 75; Mining Act 1978 (WA) s 63AA). 247. Mineral Resources (Sustainable Development) Act 1990 (Vic) s 2A. 248. For example, Mining Act 1992 (NSW) s 239; Mining Act 1971 (SA) s 60. In Victoria, although rehabilitation must be carried out in compliance with a rehabilitation plan or licence conditions (Mineral Resources (Sustainable Development) Act 1990 (Vic) Pt 7), the existence of a plan or such conditions seems to depend upon the exercise of ministerial discretion: s 26. 249. For example, Mineral Resources (Sustainable Development) Act 1990 (Vic) s 79 (licence holder must rehabilitate in accordance with approved rehabilitation plan); s 80 (rehabilitation bond). 250. For example, Mining Act 1971 (SA) s 73H. 251. Mining Act 1992 (NSW) ss 240–240D; Mining Act 1991 (SA) ss 70E, 70F (power to direct rehabilitation), 74A and 74AA. 252. Mining Act 1971 (SA) ss 70A–70H; Mining Regulations 2011 (SA) regs 65–68. 253. Mining Regulations 2011 (SA) reg 67; Mining Act 1992 (NSW) s 246N. The court in New South Wales also has such a power; and further powers to order rehabilitation and provision of a security bond where the court orders a restoration or enhancement program to be carried out: s 378ZE. 254. Mining Act 1978 (WA) ss 70O, 74(1)(ca)(i), 82(1)(ga), 82A(2)(a) and 84AA. It has been argued that these requirements only confer limited authority on regulators to require miners to deal with post-operative impacts on water resources; see Ward, ‘Miners’ Liability to Redress Reduced Water Quantity and Quality after Mine Site Closure: A Case Study of the Collie Coalfields in Western Australia’ (2015) 32 EPLJ 455. 255. Mining Rehabilitation Fund Act 2012 (WA). 256. Mining Rehabilitation Fund Act 2012 (WA) s 11. 257. Petroleum Regulations 2011 (Vic) regs 8–12; Pipelines Regulations 2007 (Vic) Pt 7; Petroleum (Submerged Lands) (Management of Environment) Regulations 2012 (Tas) Pt 2; Petroleum (Submerged Lands) (Environment) Regulations 2012 (WA) Pts 2 and 4; Petroleum and Geothermal Energy Resources (Environment) Regulations 2012 (WA) Pts 2 and 4; Petroleum Pipelines (Environment) Regulations 2012 (WA) Pts 2 and 4. See also Petroleum and Geothermal Energy Regulations 2000 (SA) Pt 3. 258. For example, Environmental Protection Act 1994 (Qld) s 37.

259. Environmental Protection Act 1994 (Qld) s 280; Ch 7 Pt 2. 260. Environmental Protection Act 1994 (Qld) Ch 5 Pt 9A. 261. Mining Act 1991 (SA) s 70A. The holder of a mining tenement must provide an environmental management and rehabilitation program that states the environmental outcomes that are expected to occur as a result of the mining operations (including after taking into account any rehabilitation proposed by the holder of the tenement and other steps to manage, limit or remedy any adverse environmental impacts), and the criteria to be adopted to measure those environmental outcomes: s 70B. 262. See Chapter 15. 263. For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 387 (mining prohibited in Kakadu National Park); National Parks and Wildlife Act 1974 (NSW) (NPWA) ss 41, 54, 58O and 64; Nature Conservation Act 1992 (Qld) s 27; Geothermal Energy Act 2010 (Qld) s 10; Mineral Resources (Sustainable Development) Act 1990 (Vic) ss 6 and 7, Sch 3; Petroleum Act 1998 (Vic) s 137. 264. For example, Mineral Resources (Sustainable Development) Act 1990 (Vic) s 6(3). 265. For example, National Parks and Wildlife Act 1974 (NSW) (NPWA) ss 41, 54, 58O and 64. 266. For example, Mining Act 1978 (WA) ss 23–24A; Offshore Minerals Act 1999 (NSW) s 38A (offshore exploration or mining in aquatic reserves needs the consent of the minister administering the Fisheries Management Act 1994 (NSW)). 267. For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 355. 268. For example, Mining Act 1978 (WA) s 26. 269. For example, Mineral Resources Act 1989 (Qld) s 383(3). 270. See, for example, Independent Expert Scientific Committee ‘Subsidence from Longwall Coal Mining’ (2014), available at ; New South Wales Government, ‘Impacts of Underground Coal Mining on Natural Features in the Southern Coalfield’, July 2008, available at . Development consents for mining in NSW are now subject to conditions requiring submission and approval of an Extraction Plan, which describes how subsidence impacts will be managed to meet the requirements of the development consent. 271. See . On threatened species see Chapter 14. 272. See Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109. 273. For example, under the (NSW) Environmental Planning and Assessment Act 1979 (EPAA); and see ‘Guideline for Preparing a Review of Environmental Factors for Mining and Petroleum Exploration Activities’ (2015) at . 274. For example, Mineral Resources Act 1989 (Qld) ss 319 and 319A. 275. For example, State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW); Environmental Protection Act 1994 (Qld) Ch 5 (mining activities), Ch 5A (petroleum, geothermal and greenhouse gas storage activities); Major Infrastructure Development Approvals Act 1999 (Tas); and see further 10.52. 276. See Lee, ‘Theory to Practice: Adaptive Management of the Groundwater Impacts of Australian Mining Projects’ (2014) 31 EPLJ 251. 277. See further 17.36 and following.

278. See Letts, ‘Coal Seam Gas Production: Friend or Foe of Queensland’s Water Resources?’ (2012) 29 EPLJ 101; Cole, ‘In the Pipeline: How the Water NSW Act 2014 Facilitates Coal Seam Gas Development in New South Wales’ (2015) 32 EPLJ 131. In Connell v Santos NSW Pty Limited [2014] NSWLEC 1, Santos was convicted of four charges of committing offences under section 136A (1) of the Petroleum (Onshore) Act 1991 relating to spills from a water treatment plant in that it, without reasonable excuse, failed to comply with certain conditions of a petroleum title that required it to report incidents and lodge an environmental management report. In considering sentence, the court took into account: that the harm in question was low level environmental harm; that the risk of harm to the environment was clearly foreseeable; that practical measures could and should have been taken to prevent harm; and that the defendant had control over the causes of the harm. The defendant was fined a total of $52,500 and ordered to pay costs amounting to $110,000. 279. And see Randall, ‘Coal Seam Gas — Towards a Risk Management Framework for a Novel Intervention’ (2012) 29 EPLJ 152; Venuti, ‘The Disappearance of Ecologically Sustainable Development within Australia’s Mining Law Framework’ (2014) 31 EPLJ 64. 280. In a Canadian case, Ernst v EnCana Corp, 2014 ABQB 672, the plaintiff successfully established her right to sue for a possible breach of a duty of care in relation to water contamination caused by chemicals used in hydraulic fracturing. The case is yet to be heard in full. 281. ‘Report of the Independent Inquiry into Hydraulic Fracturing in the Northern Territory’. Available at . Fracking has been banned in a number of jurisdictions worldwide; see Bubna-Litic, ‘Fracking in Australia: The Future in South Australia?’ (29015) 32 EPLJ 437, 453. 282. Available at . The Report highlights in particular that there is a concerning culture of some agencies not requiring or checking evidence to ensure industry compliance; that some regulators have not been checking that required data and reports are delivered; not reviewing or verifying the material that companies are obliged to provide; not checking operations; and not reviewing or managing conditions that have become outdated or problematic with the passing of time. 283. To access the Agreement, go to . 284. It has been pointed out that a significant omission in this process is the absence of any controls over shale gas; see Bubna-Litic, ‘Fracking in Australia: The Future in South Australia?’ (29015) 32 EPLJ 437, 440. 285. A bioregional assessment is a scientific analysis of the ecology, hydrology, geology and hydrogeology of a bioregion with explicit assessment of the potential direct, indirect and cumulative impacts of coal seam gas and large coal mining development on water resources. 286. The COAG Energy Council has published a report on ‘National Harmonised Regulatory Framework for Natural Gas from Coal Seams’ (2013). Available at . This report recommends harmonisation of regulatory effort on hydraulic fracturing and other aspects of coal seam gas activities. 287. Available at . 288. Petroleum and Geothermal Energy Act 2000 (SA) and Petroleum and Geothermal Energy Regulations 2013 (SA). 289. Petroleum and Geothermal Energy Resources (Environment) Regulations 2012 (WA) reg 9. 290. Petroleum and Geothermal Energy Resources (Environment) Regulations 2012 (WA) reg 15(9). 291. See Swayne, ‘Regulating Coal Seam Gas in Queensland: Lessons in an Adaptive Environmental Management Approach?’ (2012) 29 EPLJ 163. 292. Environmental Protection Regulation 2008 (Qld) reg 24AA.

293. Environmental Protection Act 2004 (Qld) s 126. 294. Section 206. 295. Petroleum and Gas (Production and Safety) Regulation 2004 (Qld) ss 35, 35A(3)(d) and 46A(3)(h). 296. Minerals and Energy Resources (Common Provisions) Act 2014 (Qld) s 3(c). 297. Minerals and Energy Resources (Common Provisions) Act 2014 (Qld) s 9. 298. See . See also Owens, ‘Strategic Regional Land Use Plans: Presenting the Future for Coal Seam Gas Projects in New South Wales?’ (2012) 29 EPLJ 113; Poisel, ‘Coal Seam Gas Exploration and Production in New South Wales: The Case for Better Strategic Planning and More Stringent Regulation’ (2012) 29 EPLJ 129. 299. State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW) Pt 4AA. Under the Gateway process, new applications are assessed by the Gateway panel and a certificate issued stating that the proposed development either does or does not meet the relevant criteria. Relevant criteria, set out in reg 17H(4), focus upon impacts on agricultural productivity and industry clusters. Before determining an application, the consent authority must consider the gateway certificate and any recommendations made therein or advice offered by the Gateway Panel; State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW) reg 17B. Advice to the Gateway Panel may also be provided by the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development established under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA); see further 18.64. 300. Australian Nuclear Science and Technology Act 1987 (Cth) s 4. 301. Sections 21–22A; and see further Chapter 6. 302. Defined in s 22. 303. Sections 140A and 146M. 304. Uranium Mining and Nuclear Facilities (Prohibition) Act 1986 (NSW); Nuclear Activities (Prohibitions) Act 1983 (Vic). 305. Environment Protection (Alligator Rivers Region) Act 1978 (Cth) ss 5–5B. 306. Environment Protection (Northern Territory Supreme Court) Act 1978 (Cth) ss 3 and 4. 307. Aboriginal Land rights (Northern Territory) Act 1976 (Cth) ss 23A–23C. 308. Uranium (Yeelirrie) Agreement Act 1978 (WA). 309. See . 310. See, for example, Environment East Gippsland Inc v VicForests [2010] VSC 335; MyEnvironment Inc v VicForests [2012] VSC 91. 311. See . 312. There are currently 10 RFAs in four states: see . 313. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 38. 314. Regional Forest Agreements Act 2002 (Cth) s 6. 315. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 40–42. 316. See also ‘State Forests, National Interests: A Review of the Tasmanian RFA’ (2015). Available at . 317. See Chapter 12. 318. For example, Forestry Act 2012 (NSW) ss 18 (special management zones for areas of special

conservation value) and 21 (management plans for state forests); Forests Act 1958 (Vic) s 22; Sustainable Forests (Timber) Act 2004 (Vic) ss 40 and 44. 319. For example, Sustainable Forests (Timber) Act 2004 (Vic) s 46; Conservation, Forests and Land Act 1987 (Vic) Pt 5. 320. For example, Sustainable Forests (Timber) Act 2004 (Vic) s 6; Forestry Act 2012 (NSW) ss 69B(2) and 69C (forest agreement must contain provisions that promote ecologically sustainable forest management). Forest agreements must be preceded by regional forest assessments conducted by or on behalf of the Natural Resources Commission that cover environmental, social and economic values; and may also include an EIA conducted under Environmental Planning and Assessment Act 1979 (NSW) (EPAA) Pt 5; Forestry Act 2012 (NSW) s 69B. On forest agreements (concluded between the Ministers for Environment and Primary Industries), see Forestry Act 2012 (NSW) Pt 5A. The conclusion of a forest agreement will be followed by integrated forestry operations approvals that integrate the regulatory regimes for environmental planning and assessment, protection of the environment and threatened species conservation; Forestry Act 2012 (NSW) ss 69L and 69O. On integrated forestry operations approvals see Forestry Act 2012 (NSW) Pt 5B. 321. For example, Plantations and Reafforestation Act 1999 (NSW) ss 13–15; Pt 4. 322. For example, Plantations and Reafforestation Act 1999 (NSW) ss 13–15; Pt 3. 323. For example, Plantations and Reafforestation Act 1999 (NSW) Pt 6; Forestry and National Park Estate Act 1998 (NSW) ss 36 and 37. 324. See, for example, Director-General, Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 (unlawful establishment of plantation on cleared land). 325. Illegal Logging Prohibition Act 2012 (Cth) s 7. 326. Illegal Logging Prohibition Act 2012 (Cth) ss 8, 9 and 12 (regulated timber products, as listed in the Illegal Logging Prohibition Regulations 2012 (Cth) Sch 1). 327. Illegal Logging Prohibition Act 2012 (Cth) s 15. 328. Illegal Logging Prohibition Act 2012 (Cth) ss 14 and 18; Illegal Logging Prohibition Regulation 2012 (Cth) Pts 2 and 4; Sch 2. 329. For example, Soil Conservation Act 1938 (NSW) s 15A; Natural Resources Management Act 2004 (SA) ss 122 and 193; Soil and Land Conservation Act 1945 (WA) s 32. And on administrative orders, see 20.4. 330. Soil Conservation Act 1986 (Qld) s 10; Natural Resources Management Act 2004 (SA) s 205; Conservation, Forests and Lands Act 1987 (Vic) s 69; Soil and Land Conservation Act 1945 (WA) Pt IVA. 331. Soil Conservation Act 1938 (NSW) ss 17 and 18; Soil Conservation Act 1986 (Qld) Pt 4; Soil and Land Conservation Act 1945 (WA) ss 22 and 26. 332. For example, Natural Resources Management Act 2004 (SA); Native Vegetation Act 2003 (NSW) (NVA). 333. For example, Natural Resources Management Act 2004 (SA) ss 9 and 193; Land Act 1994 (Qld) ss 199 and 214; Catchment and Land Protection Act 1994 (Vic) ss 20, 33, 37 and 47A. The New South Wales State of the Environment Report 2009, p 140, shows a decline in soil structure and carbon content, deterioration that is not traditionally associated with the issue of administrative orders. 334. A number of jurisdictions have implemented or are moving towards specific protection for prime agricultural land: see, for example, Strategic Cropping Land Act 2011 (Qld); State Planning Policy 1/12: Protection of Queensland’s Strategic Cropping Land; State Policy on the Protection of Agricultural Land 2009 (Tas); Strategic Regional Land Use Policy (NSW), available at .

335. See also Power v Sarina Shire Council [1999] QPEC 56. 336. For example, Great Southern Property Managers Pty Ltd v Colac-Otway Shire Council [2006] VCAT 706; Farquhar v Colac Otway Shire Council [2007] VCAT 61; Great Southern Managers Australia Ltd v Baw Baw Shire Council [2008] VCAT 375. 337. For example, Keristar Pty Ltd v Maroochy Shire Council [2003] QPEC 64. 338. See further 17.55 and following.

[page 803]

PART F Environmental Litigation: Enforcement and Accountability Overview Pt F.1 Environmental litigation, often referred to generically as ‘public interest litigation’1 when conducted by persons seeking to protect environmental values who have no interest in the proceedings other than to ‘right a wrong’,2 may be triggered in a number of ways: by dissatisfaction with a decision made by someone to whom the legislation has given power to make the decision (merits appeal); by a claim that in making a decision, the decision-maker erred in law (judicial review); [page 804] by a contravention of the legislation that may be enforced by civil action (civil enforcement); by a contravention of the legislation that may be enforced by criminal proceedings (criminal enforcement). The concept of ‘public interest litigation’ surfaces most obviously in courts in the determination of costs following the conclusion of litigation. The fact that a case has been brought ‘in the public interest’ rather than out of any motivation for personal gain, may determine whether the court awards costs against unsuccessful litigants, and how those costs may be apportioned: see Chapter 21. The public interest nature of the litigation may also be influential in determining whether a litigant has standing to initiate the case and whether certain remedies may be available. ‘Public interest litigation’ is not a term employed by legislation, though ‘public interest’ may be a criterion for environmental decision-making: see 8.31. Litigation based on the application

of ‘public interest’ as a factor in decision-making does not, however, for that reason alone, make the litigation ‘public interest litigation’. Public interest litigation is not an end in itself. Rather it is a means of achieving ends or objectives such as conservation of a particular environment threatened with damage, upholding environmental standards, maintaining environmental integrity, enforcing democratic rights and duties, and securing environmental justice.3

In this part ‘litigation’ is a term used to encompass resolution of disputes by means of either judicial or merit review, or criminal prosecution, in a formal court or tribunal setting. Enforcement of environmental laws may also take place outside a formal court or tribunal setting by the issue of administrative orders or negotiation of undertakings by regulatory authorities to compel compliance, breach of which may also trigger court proceedings.

1.

McGrath, ‘Flying Foxes, Dams and Whales: Using Federal Environmental Laws in the Public Interest’ (2008) 25 EPLJ 324 at 325 and 326 admits that the concept is ‘elusive’ and ‘something of a moving feast that depends on the objects of the legislation in question and the circumstances of each case’. It has been said that a widely accepted approach by the courts to public interest litigation is to determine whether the case affects the community or a significant sector of the community or involves an important question of law: Australian Law Reform Commission, Costs Shifting — Who Pays for Litigation, Report No 75 (1995) at [13.2]. However, this is really only useful in the context of costs awards.

2.

For other ways of defining the concept see McGrath, note 1 above.

3.

See Preston, ‘The Role of Public Interest Environmental Litigation’ (2006) 23 EPLJ 337 at 350.

[page 805]

Chapter 19 Standing in Environmental Litigation Introduction 19.1 A good cause of action, that is, good grounds for lodging a legal challenge or merits appeal, gives no guarantee that the complainant will be able to present the case before a court or tribunal, even a specialist environmental court or tribunal. The right of a person or body to ask a court or tribunal to hear a case is often referred to as ‘standing to sue’ or ‘locus standi’. The standing of an applicant seeking relief before a court or tribunal will depend upon the type of relief being sought — whether the applicant is seeking civil or criminal remedies for a breach of the law, or challenging a decision by means of a merits appeal or judicial review. ‘Standing’4 is a concept developed by and embedded in the common law. It has been subsequently adopted, or more recently modified, by legislation. The purpose of standing is to ensure that only those who have a legitimate interest in a matter are allowed access to a court or tribunal. If only those who have a legitimate interest in the outcome of proceedings are able to participate, this will help to weed out time-wasters and busybodies and ensure that the action is properly and efficiently conducted. This then begs the question, what is a legitimate interest? 19.2 The rules of standing arose in actions concerned with the protection of private interests — those interests that were known and respected by the courts of common law. As explained in Chapter 3, these extended principally to the protection of private property and economic values. Courts of common law were not accustomed to dealing with litigants seeking resolution of matters of public concern, such as environment protection, where a litigant would usually have no recognised private interests to protect. Clearly, there was a large gulf between the personal concerns of a litigant and those private

interests that the law would recognise as establishing a right to demand protection from the law. Indeed, in one celebrated case, the High Court of Australia referred to the environmental concerns expressed in that case as merely ‘intellectual or emotional’. It said that ‘a belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi’.5 The Chief Justice did, [page 806] however, also say, ‘I would not deny that a person might have a special interest in the preservation of a particular environment’.6 In Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, Gleeson CJ and McHugh J, in the High Court, said at [2]: The common law requirement that a plaintiff who brings an action, not to vindicate a private right, but to prevent the violation of a public right or to enforce the performance of a public duty, must have a special interest to protect, is based upon considerations of public policy which the legislature would not lightly disregard. Nevertheless, it is not difficult to understand why, in the case of certain laws, it might be considered in the public interest to provide differently.

The task, for legislators as well as courts, is to define more particularly the circumstances in which an ‘environmental’ interest might translate into a right to have a dispute heard by a court or tribunal. 19.3 The right of standing at common law traditionally also depends on the precise remedy sought by the plaintiff. The common law had previously devised various complicated tests to determine the standing of applicants based on the remedy they sought. The precise nature of these tests has never been entirely clear,7 and the result of applying them to individual cases has not been easy to predict.8 Standing for a declaration or injunction depended on whether the plaintiff had a ‘special interest’ in the subject matter of the proceedings. However, the test for the prerogative writs of certiorari and prohibition was said to be ‘more liberal’, in that a person whose interests were prejudicially affected, but who did not necessarily have a direct or special interest, could seek relief.9 Standing for the writ of mandamus, and indeed the other prerogative writs, has also been held to depend on a ‘sufficient interest’,10 a test hard to distinguish from a ‘special interest’. This test, however, would not necessarily be entirely the same for each remedy. The test to be applied for a remedy of mandamus may be stricter than that applied to certiorari, because the interest of a person seeking mandamus to force a public authority to carry out its public statutory duties is different to the interest

[page 807] of a person seeking to quash a decision because the decision-maker has exceeded its legal powers.11 Where legislation is silent about who has rights to enforce breaches of environmental legislation, then common law rules will be applied. Where legislation is silent about a right to appeal a decision on the merits then no such right can exist; merits appeals are not known to the common law and can only be granted by statute. 19.4 Legislation may of course confer standing on parties to bring court actions to enforce the law, or to allow them to contest the outcomes of decision-making by lodging a merits appeal. In this event, the legislation must be interpreted to determine to whom the legislation has given such rights. Although standing in respect of merits appeals is generally more precisely defined to confer these rights on applicants for licences and other authorisations,12 on persons served with various types of administrative orders and notices,13 and sometimes on ‘objectors’ or those who have lodged a submission in respect of an application,14 this is not always the case. Both merits appeals and legal enforcement may contemplate, for example, that ‘persons aggrieved’ should have standing. Standing that is conferred on ‘persons aggrieved’, or some variation of this, must therefore be interpreted to determine how far the legislation intended to go in conferring standing; and that may not be an easy task. It is also usually the case that statutes that confer these rights do not provide any interpretation of what is meant by ‘person aggrieved’ or similar.15 The general approach adopted by a court to interpretation of such phrases will, therefore, be to presume that the statute does not intend to affect traditional common law notions as to who should be accorded standing, unless the court can determine that, by express or necessary intention, the common law approach has been modified or displaced.16 Consequently, legislation that gives rights to persons to enforce the law, or to bring a merits appeal, has often been restrictively interpreted so as to reflect the common [page 808] law view. That is, that a person, to gain standing under the statutory scheme, must in fact have an interest that would be recognised at common law.17 19.5 In recent years, however, this strict approach — that would equate the standing requirements for ‘public interest’ litigants with those that would apply to private suits at common law — has been considerably relaxed, both

by the courts themselves to some extent, and by legislative reform. These approaches can be summarised as follows: The courts may admit that, while rules of standing are a legitimate and valuable aid to court proceedings, the application of rules more applicable to private litigation are not necessarily appropriate to cases where the plaintiff has no private interests to protect.18 This may involve a reappraisal of common law rules or statutory interpretation in the light of modern social expectations. Legislation may define more precisely who will be entitled to enforce, or participate in, the statutory scheme.19 This may involve an extension of the standing rules to persons who otherwise would not necessarily be granted standing at common law, or who would not ordinarily be able to bring themselves within the terms ‘person aggrieved’, ‘person affected’ or similar, as traditionally interpreted by the courts. Legislation may allow for an extension of the standing rules to persons described above, but require the court to give leave to such an application.20 Legislation may effectively abolish rules of standing, or extend standing to everyone, by providing that ‘any person’ may enforce the law or participate in the statutory scheme.21 This test may be modified slightly by requiring some initial criteria that should be met, such as participating in some manner in the statutory scheme before an appeal is lodged.22

The traditional approach 19.6 Environmental litigation has in the past and, occasionally, in the present, been severely restricted by the application of traditional common law rules of standing to cases seeking to redress breaches of environmental laws, even where such breaches were relatively easy to prove, and, in some cases, admitted.23 Such an approach has rightly [page 809] led many commentators and non-government organisations to seriously question the commitment of governments to enforcing compliance with environmental laws. Such an approach, if allowed to persist, could seriously undermine the objects of legislative schemes for environment protection and natural resources management, which increasingly seek to involve the public in decision-making and enforcement, both as a means of information

gathering prior to making decisions, and as an aid to enforcement after they are made. 19.7 The reasons commonly given as justification for applying traditional rules of standing to public interest litigants were outlined by Gibbs CJ in Onus v Alcoa Australia Ltd:24 If an attempt were made to frame an ideal law governing the standing of a private person to sue for such a purpose, it would be necessary to give weight to conflicting considerations. On the one hand it may be thought that in a community which professes to live by the rule of law the courts should be open to anyone who genuinely seeks to prevent the law from being ignored or violated. On the other hand, if standing is accorded to any citizen to sue to prevent breaches of the law by another, there exists the possibility, not only that the processes of the law will be abused by busybodies and cranks and persons actuated by malice, but also that persons or groups who feel strongly enough about an issue will be prepared to put some other citizen, with whom they have had no relationship, and whose actions have not affected them except by causing them intellectual or emotional concern, to very great cost and inconvenience in defending the legality of his actions. Moreover, ideal rules as to standing would not fail to take account of the fact that it is desirable, in an adversary system, that the courts should decide only a real controversy between parties each of whom has a direct stake in the outcome of the proceedings. The principle which has been settled by the courts does attempt a reconciliation between these considerations.

In defence of restrictive standing requirements, the High Court has said that sometimes too much is made of the standing of the plaintiff. It has said that where a case has merit, the court may decide to hear the case and determine the question of the plaintiff’s right to present it later (or not at all). In Onus v Alcoa, for example, Gibbs CJ remarked: The question whether a plaintiff has standing to bring an action is one that logically arises before the question whether he is entitled to succeed in the action. However, as I pointed out in Robinson v Western Australian Museum (1977) 138 CLR 283 at 302, the court has a discretion whether or not it should determine the question whether the plaintiff has a sufficient interest to bring the proceedings before it proceeds to determine the merits of the case.25

Murphy J, however, brought this exercise of discretion more into focus: In practice, questions of standing are often brushed aside if a court considers that the issue of substance should in the public interest be settled, particularly if it seems clear that the plaintiff will lose on the merits. Often, however, where a plaintiff seeks

[page 810] to have litigated an issue which is awkward because it questions dominant social institutions or relationships, standing looms large.26

19.8 Traditionally, a litigant seeking to enforce a public environmental duty has to show some ‘special interest’ over and above other members of the public in order to establish standing. This is so that the litigant’s particular interest can be distinguished from the interests of every other member of the

public, and thus convince the court that the litigant has some particular stake in the outcome that warrants consideration by the court. Environmental laws commonly create public statutory duties owed to the public at large rather than individual private interests.27 Unless a plaintiff can establish a special interest in enforcing that public duty over and above other members of the public generally, then standing will be denied. 19.9 The traditional rules for hearing cases seeking an injunction or declaration based on a breach of public statutory duties were outlined in an oft-quoted passage from Buckley J in Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114: A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with; … and, secondly where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.

The requirement that the plaintiff’s damage be ‘peculiar to himself’ means no more than that his or her particular grievance must be significantly greater than that of the rest of the public generally, not that the damage suffered must be unique. This has sometimes been referred to as a ‘real’ or ‘substantial’ interest in the outcome of the case.28 As Gibbs J said in Australian Conservation Foundation v Commonwealth (1980) 28 ALR 257 at 268: ‘… the expression “special damage peculiar to himself” in my opinion should be regarded as equivalent in meaning to “having a special interest in the subject matter of the action”’. Later, Brennan J in Onus v Alcoa, remarked: A special interest in the subject matter of an action, being neither a legal nor equitable right, nor a proprietary or pecuniary interest, will ordinarily be found to arise from modern legislation enacted to protect or enhance non-material interests — interests in the environment, in historical heritage, in culture. Where such a statute imposes a public duty to protect or enhance a non-material interest a breach of the duty is apt to affect a non-material interest, and it would be vain to search for proprietary or pecuniary

[page 811] damage suffered by a plaintiff. A plaintiff in such a case, though he may be able to show a special interest in what the statute seeks to protect or enhance, would be unable to show a private right or to prove that he has suffered proprietary or pecuniary damage. To deny standing would deny to an important category of modern public statutory duties an effective procedure for curial enforcement.29

This ‘special interest’ has subsequently been found in property and

economic interests, through spiritual and cultural ties, and by a special relationship with a particular environment.

Property and economic interests 19.10 Since the common law is based essentially on the protection of private rights of property and the facilitation of freedom of commerce, it is not surprising that the common law should recognise that a person who can assert private property or economic interests should be regarded as having an interest sufficiently ‘special’ to support standing in legal proceedings. Applications for development consent, for example, are commonly challenged by neighbouring landowners who have obvious interests in maintaining the value of their own property and the amenity of the surrounding neighbourhood. Although, in the absence of statutory modification of the rules, landowners have no standing at common law simply because they are neighbours,30 so long as property interests might be legitimately affected then it seems there is no limit to the distance over which this special interest might be claimed. Clearly, however, as the degree of impact becomes more remote so does the likelihood that the plaintiff will be able to establish a legitimate special interest. For example, it has been held that objectors to a proposed demolition of buildings in the middle of Melbourne, who lived in Ballarat and Canberra, could not have such a special interest.31 Although this will be, inevitably, a question of degree in many cases, there can be no standing where the applicant is not actually affected by the decision complained of.32 However, where a reduction of amenity or enjoyable use or a reduction in property values might occur (frequently the two are interlinked), then clearly this would support a claim for standing.33 For example, in State Planning Commission (WA) and [page 812] Beggs; Ex parte Helena Valley/Boya Association Inc (1990) 2 WAR 422, the concern of local people to protect the environmental amenity of land in the vicinity of their properties was determined to be a ‘special interest’. On the other hand, in Linaker v Greater Geelong City Council [2010] VCAT 1806, the fact that the appellant lived 23 kilometres away from the subject land, and owned no other property nearby, proved to be fatal to his ambition to establish standing either at common law or under the statutory scheme that had adopted the ‘special interest’ test for determining the standing of the applicant.34

19.11 Standing rules at common law also might have to balance the ideals of protection of interests of property with support for freedom of trade and commerce. This is why, for example, the common law will not enforce a right to maintain a particular view, which, while undoubtedly of benefit to the amenity and value of a particular property, could result in sterilisation of development opportunities across a wide area.35 This balancing act also explains why potential business competition has been repeatedly held not to be a relevant planning matter, and so does not support the standing of a business competitor to launch a merits appeal against the determination of an application for planning permission.36 19.12 Neither will the mere prospect of gaining a commercial interest form a basis for standing. In Yates Security Services Pty Ltd v Keating (1990) 98 ALR 68, the plaintiff leaseholder intended to redevelop the site of Paddy’s Market in Sydney. The plaintiff sought to challenge an order revoking a ban on acquisition of the site on the basis that the minister had acted in breach the Australian Heritage Commission Act 1975 (Cth) s 30 (now repealed). Under the Act, the minister had obligations not to adversely affect the national estate unless satisfied there were no feasible alternatives to the proposed action and that all measures that could reasonably be taken to minimise adverse impacts had been taken. The plaintiff claimed that success in the proceedings would confer on the plaintiff a commercial benefit, that is, a chance to negotiate to acquire the site. The Federal Court rejected this as a basis for a special interest. The ability to negotiate is one enjoyed by all members of the public, and the plaintiff’s interest in the action for judicial review would make no difference to whether the plaintiff was a serious contender to redevelop the site. 19.13 Due to the difficulties associated with environmental groups being able to establish a traditional basis for standing, that is, a property interest in the area affected, they have at times tried to assert economic interests to counter this difficulty. In Tasmanian Wilderness Society Inc v Fraser (1982) 42 ALR 51, for example, Mason J accepted that the Wilderness Society had an admittedly limited commercial interest in south-west Tasmania in selling articles relating to that region, while two other [page 813] companies ran tourist operations in the area. In Fraser Island Defenders Organization v Hervey Bay Town Council (1983) 2 QR 72, the plaintiff was also able to gain standing because it ran organised bushwalking tours in the area. 19.14 Subsequently, however, the courts came to regard with suspicion

attempts by conservation groups to claim economic interests as a basis for standing. In Australian Conservation Foundation v South Australia (1990) 53 SASR 349 at 353, the plaintiff alleged that it sold publications, posters and various other goods through which it supported its conservation activities. It alleged that if public appeal for the national park, the subject of an application for development, diminished because of the proposal being challenged, their products might become less saleable. Bushwalking tours conducted in the area might also become less appealing. King CJ, however, regarded these arguments as: … merely colourable attempts to assert a non-existent commercial interest. Whether the proposed development will diminish, rather than enhance, interest in the area is purely speculative and the assertion that sales of publications will diminish in consequence is fanciful. Moreover, the notion of commercial detriment is incompatible with the allegation in para 2 of the statement of claim that the second plaintiff is a non-profit making association.

While such an approach by the court could be criticised, first, in that a nonprofit making organisation could clearly carry out commercial enterprises without necessarily affecting its overall status, and second, that it is not the function of a court or tribunal, in assessing the standing of the applicant, to attempt to quantify or qualitatively assess the extent of the economic interest, nor query the impact of the proposal on the relevant environment, the fact remains that this was always an approach to standing that carried inherent risks and only to be attempted as a last resort. In Central Queensland Speleological Society v Central Queensland Cement Pty Ltd (No 1) [1989] 2 Qd R 512, the plaintiffs, by a majority, were similarly denied standing to challenge the destruction of caves used as roosting sites for the vulnerable ghost bat on the basis that ‘a party cannot create his own standing simply by spending money in support of the cause’.37 Property and economic interests are not, therefore, interests that can usually be relied on by environmental litigants to establish standing. Fortunately, there are better prospects elsewhere.

Social and cultural interests 19.15 It was clear from the tenor of the judgments in Australian Conservation Foundation v Commonwealth (1980) 28 ALR 257, that social, cultural, political and environmental interests could form the basis of a ‘special interest’, but the circumstances in which this might occur were left open. The following year, however, this theme was taken up again in Onus v

Alcoa of Australia Ltd (1981) 36 ALR 425. In this case the High Court unanimously agreed [page 814] that an Aboriginal cultural interest was sufficient to give the appellants standing to challenge the construction of an alumina refinery on sacred land. This case, however, must be approached with caution. The appellants were descendants of the traditional occupants and guardians of the site and, by custom, were, therefore, the custodians of the relics found on it. As Gibbs CJ said, this gave the appellants ‘an interest … which is greater than that of other members of the public and indeed greater than that of other persons of Aboriginal descent who are not members of the Gournditch-jmara people …’.38 In other words, a special interest may be discernible from the closeness of the relationship between the applicant and the subject matter of the action: The present appellants are members of a small community of Aboriginal people very long associated with the Portland area; the endangered relics are relics of their ancestors’ occupation of that area and possess for their community great cultural and spiritual significance. While Europeans may have cultural difficulty in fully comprehending that significance, the importance of the relics to the appellants and their intimate relationship to the relics readily finds curial acceptance. It is to be distinguished, I think, and will be perceived by courts as different in degree, both in terms of weight and, in particular, in terms of proximity, from that concern which a body of conservationists, however sincere, feels for the environment and its protection.39

19.16 So far, the courts have not directly accepted that environmental interests may support standing at common law. However, more recent interpretation of standing requirements under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), the provisions of which have been said to reflect, or been equated with, rules of standing at common law,40 suggests that, given an appropriate case, a court may take the opportunity to formally align the test for standing for environmental interests at common law with the test developed for statutory standing in recent cases.41

Statutory rights and entitlements 19.17 The common law recognises that persons who have rights conferred on them by environmental statutes, for example, a right to lodge a merits appeal, will have standing at common law to protect those rights or to challenge the legality of a [page 815]

decision. This is because by exercising or intending to exercise such an entitlement, they have thus acquired a special interest in enforcement of the statutory scheme.42 For example, the Planning Act 1982 (SA) s 53 (now repealed) stated that ‘any person who desires to do so’ might make representations concerning planning applications, and that such a person might, if aggrieved by the decision, appeal to the Planning Appeals Tribunal. In Australian Conservation Foundation v South Australia (1990) 53 SASR 349, the court held that the conferment of these statutory rights thereby gave persons lodging representations a ‘special interest’ in ensuring that the statutory process set up to determine the development application was properly observed.43 King CJ distinguished the ‘theoretical rights’ of those members of the public who had no intention of taking part in the process, from those of a person who: … seriously intends, if the proper process is followed, to make representations and perhaps appeal against an adverse decision. The special interest in such a case arises not from the impact which the proposed development will have on the plaintiff but from the threatened deprivation of the right to oppose by representations and appeal.

Similarly, in King Cole Hobart Properties Pty Ltd v Planning Appeal Board (1992) 77 LGRA 92, the Supreme Court of Tasmania held that where the Tasmanian Conservation Trust had made submissions as a bona fide objector to an application for planning permission, which then, under the statutory scheme, conferred on the trust a statutory right of appeal in respect of the application, it had standing to challenge the outcome of a compulsory conference between the applicant and the planning authority that had not involved the trust.44 19.18 One must be careful, however, to distinguish between legislation that confers rights to continued participation in the statutory process from that which merely allows submissions to be made without any further rights to continued involvement. Where legislation merely confers rights to object without any further rights to appeal or continue the process in any way, then it is clear that objectors will not have standing to pursue further action.45 A statutory right of participation granted to the public at large, without any further rights to participate in the statutory process of decision-making, cannot form the basis of a special interest.46 In Australian Conservation Foundation v Commonwealth (1980) 28 ALR 257, it was submitted that since the ACF had furnished written comments to the minister in accordance with the provisions of the Environment Protection (Impact of Proposals)

[page 816] Act 1974 (Cth),47 it, therefore, had a ‘special interest’ in ensuring that its comments were taken into account in preparation of the final environmental impact statement. It was also submitted that the minister should have considered that statement before he made his decision. The majority held that this could not be regarded as a sufficient interest to entitle the plaintiff to sue in its own right.48 Murphy J dissented: [S]urely, as a matter of principle, if parliament sets up the machinery for public participation, then any active involvement by members of the public in reliance on the statutory provisions should give participants sufficient locus standi to challenge decisions made pursuant to the legislative scheme.49

19.19 While it might be accepted that if any person has a right to object then the existence of that right cannot invest anyone with a special interest over and above anyone else, it can certainly be argued that a person who takes up that right and actually lodges an objection thus acquires a special interest in the outcome of the decision. This argument may have influenced the Western Australia Court of Appeal in Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 141 LGERA 106, where one of the reasons for according the plaintiff standing appears to have been its prior submission to the decision-maker on the issue under consideration; although the court in fact also clearly granted standing on the basis that the plaintiffs had a sufficient special interest by reason of their history of activism in relation to the matter: see 19.30.

Standing granted by legislation 19.20 Environmental legislation gives regulatory authorities standing to initiate enforcement action, whether that be by administrative, civil or criminal process. Environmental legislation also generally gives applicants for a licence or other authorisation a right to appeal the decision. Rights of appeal for objectors are more sparingly issued. For example, in New South Wales, while applicants may challenge decisions about development consents or other licensing decisions, under a variety of environmental statutes, objector appeals are only possible where a person has lodged a submission to an application for development consent in respect of major development, or commented upon an application for a licence that might permit harm to a threatened species.50 On the other hand, ‘any person’ may bring proceedings to enforce or restrain a breach of an environmental statute.51

[page 817] In other states, legislation that creates rights of merits appeal52 and legal enforcement frequently extends those rights to persons ‘aggrieved’,53 ‘dissatisfied’,54 or ‘whose interests are affected’55 or ‘adversely affected’;56 or who have a ‘sufficient’ or ‘proper’ interest57 in the subject matter of the action. To the extent that such phrases are not defined by the legislation creating such ‘rights’, traditionally such phrases have been interpreted in accordance with the common law approach outlined above.58 19.21 The difficulties that have beset the courts in interpretation of phrases such as ‘person aggrieved’ or a person ‘whose interests are affected’ are well known. In R v Ward; Ex parte Brambles Holdings Ltd (1983) 34 SASR 269 at 272, Zelling J, in dissent, made some caustic comments on the continued use of the phrase ‘persons aggrieved’: One must say immediately that it is about time parliament gave up using the words ‘a person aggrieved’ in statutes where some right of challenge to a decision or order is sought to be given. We were presented with a list of authorities, textbooks and learned articles covering two typed pages of foolscap and these in themselves were only a small selection from a much larger number of cases, books and articles dealing with cases in which these words have been considered by courts in relation to various statutes for a period of well over a century. The words invariably give rise to a barren controversy as to locus standi, and it would be a great deal more beneficial to the community if parliament would specify in each statute who has a right to mount a challenge to the decision of the court or tribunal sought to be impugned.

19.22 Legislation in Victoria, for example, has traditionally provided an interesting array of standing requirements. Courts have frequently had to determine the circumstances in which a person might be ‘aggrieved’ or ‘affected’. In National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society [page 818] Ltd [1976] VR 592, the trust was held to be a ‘person who feels aggrieved’, under the Town and Country Planning Act 1961 (Vic) s 19(1), so as to have standing to challenge a grant of planning permission to which it had originally objected. The trust was recognised in (if not by) legislation in Victoria, and its objects were relevant to determining its interest in the case and hence whether it might ‘feel aggrieved’ at the grant of planning permission.59 The Full Court of the Supreme Court of Victoria also held, in Australian Conservation Foundation v Environment Protection Appeal Board [1983] VR 385 at 404, that a ‘person who feels aggrieved’, relying on the Environment Protection Act 1970 (Vic) s 32(5), did not have to show any direct or material interest in the subject matter of the appeal of a proprietary or economic

nature. This, said the court, was because in addition to the appellant’s lodgment of a written objection in order to appeal, an appellant could only appeal on grounds stated in s 32(5) of the Act. One of these (s 32(5)(b)) was clearly not related to any personal, economic or legal interests of the appellant and, therefore: … the availability of such a ground is quite inconsistent with appeal status being restricted to a person with legal or some ‘extra’ or ‘special’ interest. On the other hand its presence is entirely consistent with the watch-dog status given to members of the public as part of the scheme by which it is hoped to control pollution of the environment.60

Similarly, in McCubbin v Environment Protection Authority (1986) 20 APA 381, the court held that the phrase ‘person … aggrieved’ in s 33B (which replaced the Environment Protection Act 1970 (Vic) s 32(5)) should not be narrowly defined and would include persons with competing business or economic interests, persons with a special interest in the preservation of the environment who might be affected by the activities complained of and local residents who might suffer pollution as a result. Section 33B now states that a ‘person whose interests are affected’ may appeal a decision, although the possible grounds of appeal are also limited by that section. This means that an applicant who might be able to establish the grounds of appeal set out in the statute may nevertheless be unable to bring the proceedings for want of standing61 — a classic instance of the merits of the applicant being apparently of greater importance than the merits of the substance of the appeal. [page 819] 19.23 The Planning and Environment Act 1987 (Vic) also provides an interesting mixture of arguable definitions. Section 52(1)(a) states, for example, that notice of development applications should be given to persons occupying adjoining land unless grant of a permit would not cause ‘material detriment’ to any person.62 It goes on to state ‘any person who may be affected’ by the grant of a permit may then object.63 At the same time, under ss 82 and 82B, objectors64 and ‘any person who is affected’ may appeal or seek leave to appeal against a decision to issue a permit; and under s 89 any person who objected or who was entitled to object, and believes they have been ‘adversely affected’ in certain circumstances, may seek amendment or cancellation of a permit.65 Further, where enforcement of planning decisions is being contemplated, the tribunal must allow any person who may be ‘adversely affected’ a reasonable opportunity to be heard.66 The phrase ‘material detriment’ would suggest the sort of private interests commonly associated with ‘persons aggrieved’. However, in R v City of

Salisbury; Ex parte Burns Philp (1986) 60 LGRA 40, the phrase ‘persons likely to be affected’ was said to be likely to be wider than ‘persons aggrieved’, but narrower than ‘persons interested’.67 However, in Murragong Nominees Pty Ltd v MMBW (1985) 60 LGRA 210, Nathan J held that a ‘person affected’ and a ‘person interested’ were ‘similar if not synonymous’, but agreed that ‘person affected’ was broader in scope than ‘person aggrieved’. 19.24 All these cases, and the relevant statutory provisions, need to be read in light of the amendments made by the Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 5, to the effect that: If an enabling enactment provides that a person whose interests are affected by a decision may apply to the Tribunal for review of the decision — (a) ‘interests’ means interests of any kind and is not limited to proprietary, economic or financial interests; (b) the person may apply to the Tribunal whether the person’s interests are directly or indirectly affected by the decision.

[page 820] This amendment reflects not only the modern tendency in legislation to expand rights of standing but also to more clearly define who will have standing. In Dual Gas Pty Ltd v Environment Protection Authority [2012] VCAT 308 at [118], Dwyer DP remarked: We consider that the express wording of s 5 of the VCAT Act, when read in conjunction with s 33B(1) of the (Environment Protection) Act, clearly evinces an intention to have a wider and more liberal test for standing for the purpose of Tribunal review proceedings, when compared to the ‘special interest’ test for standing in environmental matters that applies at common law and for cases of judicial review and similar proceedings. By reference to s 5 of the VCAT Act, the ‘interests’ in s 33B(1) are interests of any kind, and may be direct or indirect, and may arise whether or not any other person’s interests are also affected. However … s 5 nonetheless falls short of giving open standing to any person. An interest must still be demonstrated.

In this case, in addition to a peak environmental group being accorded standing, an individual and a group with a longstanding history of involvement in issues relevant to the subject matter of the appeal, including climate-related issues, were also granted standing in the proceedings (although a group with more marginal interests was not).68 19.25 In Thirteenth Beach Coast Watch Inc v Environment Protection Authority [2009] VSC 53, it was accepted by the parties and the tribunal (though not decided by the court) that the plaintiffs had standing as a ‘person whose interests are affected’ under the Environment Protection Act 1970 (Vic) s 33B(1) by reference to their mission statement as an organisation concerned about the area the subject matter of the appeal. Neither the

association nor any of its members were alleged to own or occupy any property in the vicinity of the land in question, nor would they suffer any physical or financial detriment as a result of the subject proposal. 19.26 It has also been held in Boerkamp v The Honourable Matthew Guy [2014] VSC 167 that the term ‘affected’ as used in s 57(1) of the Planning and Environment Act 1987 (Vic) must be broadly construed, though in this case the plaintiff would have failed to gain standing if he had relied upon environmental interests alone because there was nothing to lift him above any other person who was concerned about the environmental impacts of a golf club development in the local area. 19.27 Nevertheless, standing remains a contested issue, particularly in relation to whether the applicant is sufficiently ‘affected’.69 In Paul v Goulburn Murray Rural Water Corporation [2009] VCAT 970 at [10]–[11], the tribunal said: The standing requirement in s 5 is much more liberal than the ‘special interests’ test of standing applying under the common law. This broad interpretation is both

[page 821] consistent with the definition in s 5, but also with the broader objects of the VCAT Act ‘intended to render justice in a timely and cost efficient manner without undue legal formality. In considering whether a person’s interests are affected by a decision, it is necessary to consider the context of the relevant enabling Act. This requires consideration of the ‘subject, scope and purposes’ of the legislation under which the decision in question was made,70 and the nature of the reviewable decision itself. The Tribunal should be cautious in applying the meaning given to the expression in other legislation, or legislation where a slightly different expression is used (e.g. where the person ‘may’ be affected, or where the person is ‘aggrieved’ by the decision). Here, the context must be whether the applicant’s interests are affected for the purposes of the Water Act and the specific reviewable decision under that Act. Standing is not however unlimited. We agree … that some meaning must be attached to the words ‘a person whose interests are affected’ and that, despite the apparent breadth of s 5 of the VCAT Act, Parliament must have intended that the rights of review did not accrue to ‘any person’ having only a general interest. An interest must still be established greater than that of the general public. The difficulty in any given case is the determination of the point beyond which the affectation of a person’s interests by a decision should be regarded as too remote to support standing to make application for review.

19.28 In Western Australia, the Planning and Development Act 2005 (WA) s 242 states that the tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the tribunal is of the opinion that the person has a ‘sufficient interest’ in the matter. In Shire of Augusta-Margaret River v Gray [2005] WASCA 227 at [139], the Court of Appeal considered that the expression ‘sufficient interest’ means that the tribunal must be satisfied that the applicant had an interest that would give standing for judicial review and that would pass the test for

standing approved by the High Court in Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493. The State Administrative Tribunal has subsequently held that although the term ‘interest’ is not necessarily equivalent to ‘legal interests’, a party must demonstrate more than strong beliefs or emotions to have a ‘sufficient’ interest. In particular, a third party will generally need to demonstrate that its intervention is necessary to enable the tribunal to meet the objectives of both the State Administrative Tribunal Act 2004 (WA), which include minimising cost and avoiding delay, as well as the objectives of the Planning and Development Act 2005 (WA).71 The federal ADJR Act enables a ‘person aggrieved’ to seek review under a wide range of enactments. The High Court has recently confirmed that the proper approach in order to apply this test to individual litigants, is to have regard to the subject-matter, scope and purpose of the Act under which the decision was made in order to establish [page 822] the relationship, if any, between the impugned decision and the interests claimed to make the person a ‘person aggrieved’.72

Modification and expansion of the standing rules 19.29 Modification of the traditional rules of standing may be effected through statutory amendment or by reappraisal of common law or statutory provisions by the courts.

Reappraisal by the courts 19.30 The courts now seem more prepared to admit that applying rules of standing developed in private interest cases is not necessarily appropriate to public interest cases. There is a view that more focus should be given to those ‘who can represent the public interest most effectively and faithfully’.73 For example, Cox J in Australian Conservation Foundation v South Australia (1990) 53 SASR 349 at 360, could not restrain a mild form of protest at the application of the ‘unfortunately restrictive procedural rules that limit access to the courts’, and wondered whether ‘there is any reason why this court should not modify the rules that the court at present applies in this kind of

action, so that any case that appears to be fit for serious argument will not be stifled merely for want of an adequate special interest … on the part of the plaintiff’.74 By 1994, Gummow J was able to remark in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 272 that, in relation to statutes that use words such as ‘interests’ and ‘affected’, ‘the day is long gone when there was any general presumption that … [t]he interests concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law’.75 19.31 The cautious liberalisation of the standing rules has occurred most noticeably in the Federal Court, applying the provisions of the Administrative Decisions (Judicial Review) Act 1997 (Cth) (ADJR Act). Under this statute, a significant number of challenges have been made to federal environmental decision-making. The ADJR Act s 5 provides that ‘a person aggrieved’ may seek judicial review of Commonwealth decision-making. The erosion of the strict application of the common law standing test applied to this provision in Australian Conservation Foundation v Commonwealth began with the decision of Davies J in Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200. Here, the Australian Conservation Foundation (ACF) was held to have a special interest in challenging a decision of the minister responsible for issuing [page 823] woodchip licences in disputed forest areas of southern New South Wales, because it was the major national conservation organisation, with recognised conservation objectives and government financial and public support for those objectives. Davies J concluded that the ACF had standing to seek review of the minister’s decision by reference to a number of factors: First, that logging was one of the major environmental issues of the time and that the forests under dispute were regarded as part of the national estate. Thus, the issue was not a local issue such as may have been involved in Australian Conservation Foundation v Commonwealth. Second, in determining standing it was necessary to take account of current community perceptions and values: In the decade that has passed since the ACF was denied standing to protect the wetlands at Farnborough in Central Queensland, public perception of the need for the protection and

conservation of the natural environment and for the need of bodies such as the ACF to act in the public interest has noticeably increased.

Third, the ACF was the major national conservation organisation in Australia with a commitment to ecological sustainability and integrated planning for development and conservation, objectives that are recognised and supported financially by both government and the general public. As a result: [W]hile the ACF does not have standing to challenge any decision which might affect the environment, the evidence thus establishes that the ACF has a special interest in relation to the South East forests and certainly in those areas of the South East forests that are National Estate. The ACF is not just a busybody in this area. It was established and functions with government financial support to concern itself with such an issue. It is pre-eminently the body concerned with that issue. If the ACF does not have a special interest in the South East forests, there is no reason for its existence.76

19.32 The reasoning applied by Davies J has since been extended to regional and even local environment groups in Tasmanian Conservation Trust Inc v Minister for Resources77 and North Coast Environment Council v Minister for Resources.78 The trust was challenging the decision of the minister to issue a licence to export woodchips. The council was seeking reasons from the minister for a similar decision. Both cases were reviewable under the ADJR Act by ‘persons aggrieved’. Sackville J held, in both cases, that the applicants had standing to seek relief, although in the case of the council, compared to the ACF, it was ‘closer to the line where a special interest in the subject matter of the action ends’.79 Factors that were in the groups’ favour were: both groups were recognised as peak environmental organisations in their respective areas; [page 824] both groups had been recognised by the federal government as significant and responsible environmental organisations. This recognition was indicated by the making of financial administration grants and, in the case of the trust, by its membership of the Peak Conservation Organisation, which met with the Commonwealth government on a regular basis; and also by federal funding for trust and council (although not specifically forestry) projects; both groups were recognised by their respective state governments as bodies that should represent environmental concerns on advisory committees. These advisory committees included those dealing with forestry issues;

both groups had made submissions to government bodies on forestry management issues and conservation values in general; the research and advisory activities of the trust in particular had involved detailed involvement in forests and woodchipping issues; and while not critical, the trust was a substantial body both in terms of membership and resources. It is clear that a combination of factors in these three cases indicated that the ACF, Tasmanian Conservation Trust and North Coast Environment Council all had a special interest in the subject matter of the action. 19.33 A similar conclusion was reached by the Court of Appeal in Western Australia in Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 141 LGERA 106, where the court granted standing on the basis that the plaintiffs had a sufficient special interest by reason of their history of activism in relation to the subject matter of the action; in Environment East Gippsland Inc v VicForests [2010] VSC 335, where the applicant was an actual user of the coupes contested in the proceedings and had a history of engagement in the governmental consultative processes with respect to logging in the area; in Dual Gas Pty Ltd v Environment Protection Authority [2012] VCAT 308, where longstanding involvement in climate-related issues that were relevant to the subject matter of the appeal enabled both community groups and even one individual to gain standing; in Tarkine National Coalition v Alex Schaap80 where the applicant was an area-specific organisation concerned with protecting the area that was the subject-matter of the challenged decision; and in Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning [2010] SASC 93, where standing was accorded to a residents association having regard, inter alia, to its representative status, the purpose for which it was formed and the interests of its members. 19.34 In all these cases, no particular factor appears to have been singled out as essential, although it can be said (at least) that the presence of certain factors will not, by itself, be enough to establish a special interest. These include the fact that the objects of the association demonstrate a commitment to environment protection; that the association lodged objections or made comments pursuant to a public consultation [page 825] process; and that the applicant is alleging a breach of the law. What can also be said, however, is that in determining whether an association has a special interest, the size and resources of the association are not particularly relevant.

What is relevant is the ability of the association to properly represent the public interest. That will depend on the degree of closeness with the subject matter of the action that, by reference to the factors enumerated above, can be demonstrated by the applicant. In the end, the appropriate question may really be whether the applicant is an appropriate organisation to ensure the accountability of the decisionmaker in the statutory decision-making process. For example, in Alliance to Save Hinchinbrook v Environmental Protection Agency (2006) 145 LGERA 32, the history of the applicant’s activities, its recognition as a peak organisation, the extensive submissions it had made and the public debate it had engendered, all demonstrated that the applicant was indeed the appropriate body to ensure the accountability of the decision-maker. 19.35 Perhaps one more valid criterion can be added: whether the applicant has statutory duties to uphold that are relevant to the subject matter of the complaint. In National Trust of Australia (NT) v Minister for Lands, Planning and Environment (1997) 98 LGERA 258, the trust successfully fought off a challenge to its standing to seek judicial review of the decision of the minister to sanction the demolition of the former Alice Springs jail, a heritage precinct, and redevelop the site. Mildren J, while applying the criteria discussed above, also clearly regarded the fact that the trust had statutory duties in respect of heritage protection, to be a prime reason for according standing: In this case, the Trust has, by its own Act, a statutory duty to promote the preservation and maintenance of buildings and places of historic interest in the Northern Territory; it is largely publicly financed; it is regarded by government as being in a special position; it nominates a member upon the Heritage Advisory council; it owns properties of this kind in the Territory; it has been consulted about the Alice Springs heritage area; it has something to lose in a real sense if the minister has power to permit the destruction of buildings in the heritage area. In my opinion, this is sufficient to confer the necessary special interest.81

Nevertheless, despite the more relaxed approach of the courts to interpretation of statutory expressions of standing, it should not be thought that community associations or environmental organisations that express environmental objectives will automatically be granted standing to pursue those objectives in court. The mere fact that a community group of individuals or an incorporated association takes up a cause does not mean that it will automatically be accorded standing.82 There is no convenient ‘template’ for interpreting phrases such as ‘person aggrieved’ or ‘persons whose interests are adversely affected’; interpretation still very much depends upon the statute that confers the relevant rights.

[page 826] An interesting extension of these principles to an international organisation that had no members in Australia, but did have a representative here, and had operated in this country for eight years fighting exports of live animals, was discussed in Animals’ Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173. In granting standing to the applicants the court said (at [120–121]: … in our opinion the appellant does have sufficient presence in Australia; it has been recognised in Australia by the relevant department of the Commonwealth; it has devoted financial resources to animal welfare in Australia sufficient to found the activities to which we have referred; not a great weight attaches to the appellant’s status or standing with respect to other bodies concerned with animal welfare; the broader and global nature of the appellant’s objects or purposes do not derogate from the appellant’s engagement in Australia; the appellant’s Australian activities do intersect with the appellant’s objects or purposes; and the nature of the decision sought to be reviewed directly impacts on animal welfare, which is at the centre of the appellant’s objects or purposes. In our view this evidence establishes that the appellant has a special interest to seek the relief set out in its application to the Court. We accept that standing requires a sufficient interest, not one which is a unique interest or the strongest interest compared with others who may have an interest.

19.36 Even today, judicial interpretation of standing provisions in environmental legislation can leave plaintiffs powerless to pursue remedies. In Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc (2006) 145 LGERA 415, most of the members of the respondent action group owned properties, or lived or worked, in areas affected by dust from the plaintiff’s plant. The Environment Protection Act 1993 (SA) s 104 provided that an application for civil enforcement of the Act could be made by ‘any person whose interests are affected by the subject-matter of the application’. The group sought orders restraining the plaintiffs from fugitive dust emissions. The Environment, Resources and Development Court (ERD Court) held that the respondents had the necessary standing to take the enforcement proceedings; however, on appeal in the Supreme Court, it was held by Debelle J that the group was unable to demonstrate any interest that might be affected by the subject matter of the application other than an intellectual or emotional interest in the protection of the environment. The court drew on a remark of Black CJ in Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 at 9, that in interpreting the term ‘a person whose interests are affected’, ‘it is unlikely that it is intended to extend the notion of “interests” to something that any member of the public could assert’. If this were the case, then it would be difficult to distinguish this provision from provisions that give a right to ‘any person’ to lodge an

application for enforcement. Debelle J, pointing out that the legislation also allowed ‘any other person’ to apply to the court for leave to make an application, concluded therefore that the ‘interests’ test fell squarely within the test for standing enunciated in Australian Conservation Foundation v Commonwealth, in that the applicants’ interests must be related to the relief claimed. Since the relief claimable under the Act was to restrain environmental harm, and the applicant, as a public interest group, had no interest affected other than a general [page 827] environmental interest, ‘(t)he interests of the applicant after the application is heard will be no different from its interests before the application is heard. Its interests are not, therefore, affected in any sense by the subject matter of the application’: at 424. 19.37 Even in New South Wales, where legislation gives a right to ‘any person’ to seek enforcement of environmental laws, it should not be presumed that ‘environmental’ plaintiffs do not have to think about standing. This is graphically illustrated by the Supreme Court decision in Animal Liberation Ltd v Department of Environment and Conservation [2007] NSWSC 221, where the plaintiff was denied standing to enforce the provisions of the Prevention of Cruelty to Animals Act 1979 (NSW) in relation to the aerial shooting of feral goats. The Act did not contain the ‘any person’ provision common to environmental statutes in New South Wales; and the applicant’s claim that it was in the ‘interest of the community that animals who do not have a voice of their own should be able to be protected through the actions of concerned citizens’ was perfunctorily rejected by the court. Extended standing provisions are also expressed not to apply to certain breaches committed under the Forestry Act 2012 (NSW).83 Chesterman J proposed a different test for standing in North Queensland Conservation Council v Executive Director, Queensland Parks and Wildlife Service.84 While admitting that applying the principles developed in North Coast Environment Council v Minister for Resources would effectively establish the standing of the applicants to seek review of a decision to excise part of a marine park to facilitate development, his Honour indicated that he preferred an alternative approach. This was to ask whether the applicant’s action was an abuse of process:85 The essence of such abuse is that there is no real controversy to be resolved and that proceedings were begun only, or primarily, to vex an opponent. I do not think it can be said that the object of

the litigation is to offend or distress the Director or the State. NQCC’s purpose is genuinely to test the legal propriety of the permit as part of its commitment to the protection of the natural environment. That attempted protection is its reason for existence and the reason why it is recognised and supported by the State and the Commonwealth. The public expects that development will occur with due regard to the environment and that, in turn, requires a balance of competing factors. To allow the balancing process there must be a contestant who can challenge arguably unlawful developments.86

[page 828] On all counts, Chesterman J held that the applicants passed the test for standing. This approach has, however, been subsequently doubted.87

Statutory relaxation of the standing rules 19.38 The challenge to express statutory reform of the rules on standing for civil enforcement has been to move away from traditional notions of ‘special interest’ and to adopt some formula that will allow serious, concerned parties with legitimate, nonproprietary interests to appear before the courts. At the same time, there is a need to ensure that the ‘courts are not places for those who wish to meddle in things that are no concern of theirs, just for the pleasure of interfering, or of proclaiming abroad some favourite doctrine of theirs, or of indulging a taste for forensic display’.88 Nevertheless, there is a great deal of support for the view that ‘the law would be so much better if the courts got on directly with the task of deciding the merits of the claims presented without passing on the merits of the plaintiff presenting them’.89 Experience suggests that opening the ‘floodgates’ of litigation to some new class of controversy is unlikely to result in the spate of unmeritorious cases often feared.90 ‘The “busybody” with unlimited financial means to fight courtroom battles, the dilettante who litigates for a lark, is a spectre which haunts the legal literature, not the courtroom.’91 19.39 The most expansive statutory changes to the traditional rules for standing in respect of civil enforcement are found in New South Wales. In this state, standing for civil action to enforce the law, or to challenge the validity of administrative decision-making, has been effectively abolished by extending standing under environmental legislation to ‘any person’, without restriction.92 Since this has been the situation in New South Wales for more than 30 years, there has been ample time to confirm that removing formal standing requirements in fact supports rather than detracts from legislative schemes for natural resources and environmental [page 829]

management.93 The number of plaintiffs who have made use of these wider standing provisions who would not otherwise have been able to proceed under the traditional rules of standing, has been limited. Further, all of them have raised serious issues of demonstrable public importance.94 Doom-laden forecasts that open standing would swamp the court with unworthy litigation have been proved wrong. Most litigation by environmental activists has been discerning, and has often made a significant contribution to the jurisprudence of the court. 19.40 In other jurisdictions, the restrictive notion of person aggrieved as being, in effect, limited to someone who has traditional common law interests to protect, has also been successfully eroded in environmental litigation and, indeed, legislative relaxation of the standing requirements, even sometimes to the extent seen in New South Wales,95 has followed. Where parliament is still unsure whether it wants to give ‘any person’ such a right, it may ‘hedge its bets’ by distinguishing between persons who will be given automatic access to civil enforcement proceedings, and others who may be referred to the court to determine whether to grant leave to bring such proceedings. Then, if the court decides favourably, a person may be given leave to bring the complaint. 19.41 In Queensland, for example, under the Environmental Protection Act 1994 (Qld) s 505, someone whose interests are affected by the subject matter of the proceeding, and someone else with the leave of the court (even though the person does not have a proprietary, material, financial or special interest in the subject matter of the proceeding), may bring proceedings in the court for an order to remedy or restrain an offence, or a threatened or anticipated offence, against the Act (restraint order). It has been held that ‘merely to be interested in the subject matter, in the sense of having “a mere intellectual or emotional concern” with the only advantage to be gained “the satisfaction of righting a wrong, upholding a principle or winning [page 830] a contest” is not to be “someone whose interests are affected”’ under the first part of this test.96 As to the second part, the court is directed to apply certain criteria in deciding whether to give a person who otherwise would have no ‘proprietary, material, financial or special interest’ leave to bring proceedings to remedy or restrain an offence against the Act. The relevant criteria to be applied by the court include whether the proceeding would be an abuse of the process of the court, the likelihood of an order being granted, the environmental harm likely to be caused, and the public interest in bringing the proceedings. A similar

approach is taken in South Australia.97 In New South Wales, the requirement that a person must seek leave of the court before taking action is restricted to criminal proceedings.98 19.42 A similar approach is evident in merits appeals in Victoria under the Planning and Environment Act 1987 (Vic), which distinguishes between original objectors and others who might be ‘affected’. An objector to a permit required by a planning scheme may apply to the tribunal for review of a decision of the responsible authority to grant a permit, although a planning scheme may effectively oust this provision.99 An affected person who is not an original objector may still seek leave from the tribunal to apply for review of a decision before the issue of the permit: The leave of the Tribunal is required, so that the Tribunal can assess whether the person is truly affected and to what extent, whether there is good reason why that person did not initially object to the responsible authority, and other relevant matters. Leave is rarely granted to a s 82B applicant where there is no application by original objectors already on foot.100

19.43 Following the lead given by the Federal Court in the ‘woodchip’ cases discussed above (see 19.31, the Commonwealth regained the initiative on standing rather than leave it to the court to relax the rules by judicial interpretation. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) continues the reform first commenced in the World Heritage Properties Conservation Act 1983101 and the Endangered Species Protection Act 1992102 (both now repealed by the EPBCA). The EPBCA extends the test of ‘person aggrieved’ under the ADJR Act to persons and organisations that, in the two years preceding the decision under challenge, have engaged in a series of activities in Australia for protection or conservation of, or research into, the environment.103 Interestingly, this provision of the EPBCA seems to go further than the test adopted by the Federal Court by not [page 831] requiring any specific connection between the matter being litigated and the activities of the plaintiff; a general environmental interest would seem to suffice. 19.44 The stark contrast between this provision and the more traditional tests for standing can be seen in the first case decided under the relaxed standing rules, Booth v Bosworth.104 Here, Spender J said (at [5]), in a case involving what was claimed to be an unlawful electrocution of flying foxes on the respondent’s property: I am satisfied that the applicant, Dr Carol Jeanette Booth, has standing to bring the principal

proceedings and this application for interim injunctive relief. It is apparent from the material that the applicant is concerned about the well-being of the flying fox population in the Wet Tropics World Heritage Area (the Heritage Area), as well as the well-being of the environment in the Heritage Area. It appears, from the evidence before me, that Dr Booth is currently employed as the Gulf Regional Policy Officer for the Worldwide Fund for Nature Australia and, in addition, does voluntary work for the North Queensland Conservation Council and is secretary of the Magnetic Island Nature Care Association. Amongst other activities she has cared for young flying foxes that have been orphaned, with the caring being directed at their return to the wild. I am satisfied that the requirements of s 475(6) of the Act are fulfilled and that the applicant has standing.105

Subsequently, standing to challenge the construction of a dam in Queensland has been granted to the Queensland Conservation Council;106 a private citizen has successfully launched proceedings to challenge the referral of a freeway project by the Victorian government;107 the Humane Society International has been held to be entitled to commence proceedings against a Japanese whaling company for unlawfully taking whales in the Australian Whale Sanctuary;108 and other [page 832] national109 and local110 environmental and community interest groups111 have all succeeded in challenging federal decision-making under this expanded standing regime.112

Action by or with the consent of the Attorney-General 19.45 If a plaintiff lacks the necessary standing to sue in his or her own name, the only way the plaintiff can seek relief is to persuade the AttorneyGeneral either to grant them permission to bring the action, or to sue in the name of the Attorney-General, usually joining the plaintiff as ‘relator’ to secure the costs of the action should it fail.113 The advantage of having the Attorney-General take action as ‘guardian of the public interest’ is that in such circumstances the courts would normally be very reluctant to refuse a remedy. Traditionally, the Attorney-General has taken action mainly to prevent uses of land contrary to statute, or to prevent the provision of services without a licence.114 A number of relator actions have also been brought, particularly in the nineteenth and early part of the twentieth century, to restrain polluting emissions of some kind.115 The most practical difficulty standing in the way of a suit brought with the blessing of the Attorney-General, however, is that in many instances the complaint will arise out of activities carried out or

sanctioned by the government of which the Attorney-General is a member. Westminster parliamentary tradition may well regard [page 833] the Attorney-General as ‘guardian of the public interest’, but the AttorneyGeneral is also, in Australia though not in Britain, a politician.116 19.46 This tension between the Attorney-General’s political role and his or her theoretical role as guardian of the public interest, has surfaced in both Tasmania and the Australian Capital Territory. In 1972, controversy arose in Tasmania over the Hydro-Electric Commission’s proposals to flood the land around the existing Lake Pedder, a wilderness area of great natural beauty in the south-west of the state. The Tasmanian government supported the scheme. However, tremendous public opposition convinced the AttorneyGeneral that he ought to seek the views of his Cabinet on whether to grant his fiat (permission) to conservationists anxious to challenge the legality of the proposed action in court. The Attorney-General himself was willing to give permission, but Cabinet brought political pressure to bear to refuse the fiat. In the wake of the political controversy that ensued, the Attorney-General resigned, to be replaced by the Premier who subsequently refused to issue his fiat to the objectors. The original Lake Pedder, its endemic wildlife, and the surrounding valleys now lie under a massive hydro-electric impoundment. 19.47 The second illustration is afforded by the ‘Black Mountain Tower case’: Kent v Cavanagh (1973) 1 ACTR 43; Johnson v Kent (1975) 132 CLR 164. Objectors wished to challenge a decision of the Postmaster-General’s Department to erect a large communications tower on Black Mountain in Canberra. The Attorney-General granted his fiat to the petitioners but, concerned that there might be some public misunderstanding of his position, he caused a special ordinance to be passed providing that the proceedings should make no reference to the Attorney-General.117 The role of the Attorney-General in these types of proceedings can be effectively discounted in modern environmental litigation, particularly as traditional standing rules are being relaxed by the legislature. However, the role of the Attorney-General as an intervenor on behalf of the Crown can be important: see 19.54.

Class and representative actions 19.48 For those persons who have standing to sue, but who either lack the

means or the determination to carry an action through without the continuous encouragement or support of others, the class or representative action may be a useful means to litigation. Neither type of action will actually enlarge the classes of persons who have standing to enforce the law, for they do not create any new rights or establish new liabilities. They may, however, increase the numbers of persons who are able to bring a private action: ‘The class action has a special utility in providing improved access [page 834] to courts for many people who otherwise have a theoretical right to justice but no practical means of achieving it’.118 19.49 A class action is a procedural device whereby a group of individuals with a common complaint, which has arisen out of a common occurrence, join together to bring a single action rather than pursuing their remedies independently. One or more plaintiffs thus sue on behalf of everyone in the group and the ultimate judgment will, therefore, either benefit or bind them all. The main advantage to an individual plaintiff, apart from engendering a feeling of solidarity and sense of unity and purpose, is that it allows for the more equal distribution of the costs of an action. This is particularly so where individually the various plaintiffs have not suffered sufficient harm to justify independent action but where collectively they have ample cause for complaint. The use of the class action may thus be able to restore some equality of access to litigation between those with limited financial resources and wealthy private or public corporations. 19.50 The representative action is a limited form of the class action procedure whereby one or more persons can sue as plaintiff as the representative of a specified class of other persons who have the same interest in the action. The only material difference between this procedure and that of a ‘class’ action seems to be that in the representative action the ‘class’ consists of specified persons of a manageable number, whereas in a ‘class action’ the actual members on whose behalf the action is brought may be individually unascertained at the time of the action. In either case, however, the only person legally liable for the costs of the action is the plaintiff. From the plaintiff’s point of view, therefore, it is desirable to ensure (by contract if necessary) that in the event of being defeated he or she will be indemnified as to costs by the other members of the group. The Federal Court of Australia Act 1976 (Cth) Pt IVA, for example, contains extensive provisions relating to representative proceedings. The Act allows claims to be brought where:

(a) 7 or more persons have claims against the same person; and (b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and (c) the claims of all those persons give rise to a substantial common issue of law or fact.119

A ‘person who has a sufficient interest to commence a proceeding on his or her own behalf against another person has a sufficient interest to commence a representative proceeding against that other person on behalf of other persons’ referred to above.120 19.51 In Ryan v Great Lakes Council; Graham Barclay Oysters Pty Ltd v Ryan (1999) 102 LGERA 123; [2002] HCA 54, for example, the plaintiff used these provisions to [page 835] bring an action based in negligence and trade practices law on behalf of himself and 184 other persons who had been injured as a result of eating contaminated oysters. In Cook v Pasminco Ltd (2000) 111 LGERA 406 at 410, the plaintiffs failed in a representative action based on the safety of emissions emanating from the respondent’s premises. Lindgren J nevertheless remarked that: … the form of representative proceeding provided by Part IVA of the FCA Act must be accepted as part of the legal landscape … the procedure is intended to promote and facilitate the bringing in one proceeding of numerous small claims that would or might not otherwise be brought at all.

19.52 In essence, then, both the class and the representative action seek the same objective; that is, to permit one or more persons to sue on behalf of a number of others, each of whom would have standing in their own right. These forms of action do not, by themselves, change the rules for standing that will apply to the members of the class.

Taking part in proceedings Action by a ‘friend of a parry’ 19.53 There are other ways in which someone may take part in proceedings before a court or tribunal without directly being granted standing, either as a party in their own night or as representative of a party. A person who attends court to assist a party in civil proceedings is frequently referred to as a ‘McKenzie friend’, following the case of McKenzie v McKenzie [1970] 3 WLR 472, in which basic principles governing rights of

appearance were laid out. It has been said that in Australia, a person may be granted leave to appear on behalf of a party as a McKenzie friend but not on an indefinite basis. The right of someone to appear as a friend of a party is a matter that should be in the control of the particular court hearing any particular application.121 An alternative is to seek the assistance of a qualified legal practitioner through a ‘pro bono’ arrangement in which a legal practitioner will act for a party for no or a reduced fee.122

Intervenors 19.54 Where a matter affects a public or state interest, the AttorneyGeneral or a relevant minister may generally intervene as of right in court or tribunal proceedings. For example, the Land and Environment Court Act 1979 (NSW) s 64 states that the Crown, as represented by the AttorneyGeneral or relevant minister, may appear before the court in any case in which the public interest or any right or interest of the Crown may be affected or involved.123 [page 836] Legislation may also empower a court or tribunal to permit persons who are not otherwise parties to the proceedings to ‘intervene’ in the proceedings in order to be heard. A court or tribunal may be awarded a general discretion to determine such an application, although the criteria for determining this may be equated to the general test for standing under the enactment that governs the decision that is the subject of the proceedings.124 In the absence of any statutory intention to the contrary, however, an intervenor, unlike a party, will ordinarily be allowed only to support or oppose a position contended for by one or other of the parties to the proceedings and will not be permitted to expand the issues to be decided.125 19.55 In the absence of any specific provision relating to intervenors, a person may be able to use provisions that advise a tribunal or a court, at least in merits review, that it ‘is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits’.126 The criteria for determining whether to allow an intervenor to engage in the proceedings have been said to be very similar to the criteria for joining a party to the proceedings: see 19.56.127 In Morrison Design Partnership Pty Ltd v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361,

Preston J said (at [57]) that a good reason for exercising such a discretion may be that: Sometimes, by reason of agreement being reached between an applicant for development consent and the consent authority, there may be no meaningful contradictor and important issues that the Court needs to consider in order to give a proper and lawful decision, will not be available to the Court.

Participation under such circumstances, however, is limited generally to the presentation of evidence and making submissions; intervenors generally cannot call expert evidence, neither do they have any rights of appeal.128 [page 837]

Joining parties to the proceedings 19.56 Legislation may enable a person to be joined as a party to a proceeding before a court or tribunal if the court or tribunal considers, for example, that the person ought to be bound by, or have the benefit of, a decision of the court or tribunal in the proceeding; or if the person’s interests are affected by the proceeding; or because an issue might not otherwise be satisfactorily dealt with in the proceedings; or because it is in the public interest or the interests of justice that a person be so joined, or for some other good reason.129 Equally, however, this discretion may not be available for joining parties to proceedings for review of planning or environmental decision-making.130 And the exercise of discretion under such provisions may also be interpreted to be impliedly limited by the standing accorded to objectors under the statutory scheme.131 19.57 In general, ‘special and unusual’ circumstances or a ‘special’ case must be shown before joinder would be ordered, but such circumstances need not be exceptional or extraordinary.132 For example, it may be in the public interest that a local council should be joined to proceedings because it is able to represent the views of the community, particularly where a proposed development is in dispute.133 In Pitt v Environment Resources and Development Court (1995) 66 SASR 274 at 275, Doyle CJ said that: Important factors in any such case will be the nature and strength of the interest of the applicant for joinder in the decision under appeal, the contribution which the applicant for joinder is likely to be able to make to a proper resolution of the issues … and whether the interest which the applicant for joinder represents and the material to be advanced by that person will be adequately dealt with by the parties already before the (ERD) Court. It will also be appropriate for the (ERD) Court to consider the impact upon the proceedings of the joinder. The Court can

and should consider the interests of the parties before it as of right and the public interest in the prompt and efficient despatch of proceedings. In addition, of course, there will in each case be other factors particular to the case. …

19.58 The principles on which this discretion may be exercised in the New South Wales Land and Environment Court have been said to include: … the practice of the Court is to limit the number of expert witnesses on any issue and to prevent the duplication of evidence (Azzure-Blacktown Pty Ltd v Blacktown City Council; Homemaker Hub Pty Ltd v Strathfield Council); (2) A written objection may be sufficient to bring the issues of an objector before the Court (Humphrey & Edwards Architects Pty

[page 838] Ltd v Council of the City of Sydney); and (3) In considering whether to make an order for joinder, the Court is required to balance the need for efficiency with the need to have all relevant matters before the Court for the consideration of the development application (Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195).134

In Victoria, objectors exempted by a planning scheme from being a party to an appeal135 may use the joinder provisions of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 60 to be joined as a party to the proceedings.136 Joinder of parties seems to be more commonly acknowledged in Victoria than in New South Wales.137 Objectors may in any case become parties to an appeal lodged by an applicant for development consent if they lodge with the tribunal a statement of the grounds on which they intend to rely at the hearing of the proceeding.138

4.

Note the comments of Gibbs CJ in Onus v Alcoa of Australia Ltd (1981) 36 ALR 425 at 430; see further 19.7.

5.

Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 at 531 per Gibbs J.

6.

(1980) 146 CLR 493 at 531 per Gibbs J.

7.

See generally Preston, ‘The Role of Public Interest Environmental Litigation’ (2006) 23 EPLJ 337 at 22–3.

8.

As Mason J remarked in Robinson v Western Australian Museum (1977) 138 CLR 327 at 528, the ‘cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another’. See generally Barker, ‘“Standing to Sue in Public Interest Litigation”: From ACF v Commonwealth to Tasmanian Conservation Trust and Minister for Resources’ (1996) 13 EPLJ 186.

9.

Re Smith and West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295. In Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at [611], Gaudron J said that it is well established that the writ of prohibition may issue to a person who has neither a direct nor special interest in the subject matter of the proceedings.

10. West Australian Field and Game Association v Minister of State for Conservation and Land Management and Environment (1992) 8 WAR 64 at 70 per Malcolm CJ.

11. In respect of persons who are affected by the decision of a court or tribunal in Victoria, the Administrative Decisions Act 1978 (Vic) s 11 extends a right to ‘any person’ to seek relief. 12. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 97; Sustainable Planning Act 2009 (Qld) s 461; Planning and Environment Act 1987 (Vic) ss 77 and 80. 13. See 20.4. 14. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 98. 15. For example, Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) s 5; Judicial Review Act 1991 (Qld) s 20. In both of these statutes, the definition not very helpfully states that a ‘person aggrieved’ includes a ‘person whose interests are adversely affected’; Water Management Act 1999 (Tas) s 270 (‘interested person’); Land Use Planning and Approvals Act 1993 (Tas) s 64 (person with a ‘proper interest’); Planning and Environment Act 1987 (Vic) s 81 (‘any person affected’); Environment Protection Act 1970 (Vic) s 33B (‘person whose interests are affected’); Environmental Protection Act 1994 (Qld) s 505 (‘someone whose interests are affected’); Environmental Protection Act 1994 (Qld) s 520 (‘person dissatisfied’. In this case, the interpretation of this term provided by the section seems to make perfectly clear that ‘third parties’ are excluded). 16. For example, Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493; Onus v Alcoa of Australia Ltd (1981) 36 ALR 425; Friends of Castle Hill Association Inc v Queensland Heritage Council (1993) 81 LGERA 346. 17. In Stow v Mineral Holdings (1977) 14 ALR 497, conservationists who wished to challenge grants of mining exploration licences over Crown land of high conservation value failed to gain standing to argue their case because they had no ‘estate or interest’ in the area the subject of the decision. The term ‘interest’, said the High Court, in the absence of any indication to the contrary, must be restricted to recognised legal interests and could not be taken to extend to wider public recreational or environmental concerns. 18. For example, North Coast Environment Council v Minister for Resources (1994) 85 LGERA 270. 19. For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 487. 20. For example, Environmental Protection Act 1994 (Qld) s 507. 21. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 123. 22. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 98 (‘objector’ may appeal); Planning and Development Act 2007 (ACT) Sch 1 (interested entities that may appeal are those that lodged representations in relation to an application); Planning Act 1999 (NT) s 117 (person who made a submission may appeal). 23. For example, Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493. 24. (1981) 36 ALR 425 at 430. 25. (1981) 36 ALR 425 at 433. 26. (1981) 36 ALR 425 at 438. 27. It has been held that the duty to provide clean and wholesome water is a duty owed to individual ratepayers so as to give rise to a private right of enforcement: Read v Croydon Corporation [1938] 4 All ER 631. Public duties to maintain water pressure (Atkinson v Newcastle and Gateshead Waterworks Co (1877) 2 Ex D 441) and to comply with fire safety requirements (King v Gousetis (1986) 60 LGRA 116) have, however, been held to impose only public duties, not private rights. A broad Aboriginal interest in land claims or in preservation of Aboriginal relics or sacred sites has also been held, by itself, not to confer private rights on Aborigines under legislation designed to facilitate such matters: Coe v Gordon [1983] 1 NSWLR 419; Onus v Alcoa of Australia Ltd (1981) 36 ALR 425.

28. Per Gibbs J in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 438. 29. (1981) 36 ALR 425 at [24]. 30. Boyce v Paddington Borough Council; Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433; Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200. 31. Hansen v City of Melbourne (1977) 7 VPA 1; see also Transurban City Link Ltd v Allan (1999) 105 LGERA 427. In Gate v City of Fremantle (1986) 23 APAD 366, it was doubted whether the president of an unincorporated association of local residents who was not himself directly affected by the proposal had a special interest so as to qualify to be ‘any person feeling aggrieved’. Similar doubts were expressed in Hansen, above, about the standing of a professional association of architects because their interests were merely academic; see also Geelong Regional Commission v Barrabool Shire Council (1984) 14 APAD 258. 32. Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; Transurban City Link Ltd v Allan (1999) 105 LGERA 427. 33. Lord v Hiscock (1980) 47 LGRA 168; Day v Pinglen (1981) 148 CLR 289; Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433; Kelvedon Pty Ltd v Shire of Northam [2011] WASC 288. 34. The approach adopted in Linaker has been subsequently doubted in Dual Gas Pty Ltd v Environment Protection Authority [2012] VCAT 308. 35. Day v Pinglen (1981) 148 CLR 289. 36. R v City of Salisbury; Ex parte Burns Philp (1986) 60 LGRA 40; No 2 Pitt St Pty Ltd v Wodonga Rural City Council (1999) 107 LGERA 141; Yu Feng Pty Ltd v Chief Executive, Queensland Department of Local Government and Planning (1998) 99 LGERA 122; see McCubbin v Environment Protection Authority (1986) 20 APA 381; see also Westfield Ltd v Commissioner for Land Planning [2004] ACTSC 49. 37. Per Derrington J at 531. 38. (1981) 36 ALR 425 at 431. 39. See note 35 above, at 436 per Stephen J. See also National Trust of Australia (NT) v Minister for Lands, Planning and Environment (1997) 98 LGERA 258, in which the National Trust successfully gained standing to challenge the proposed demolition of the former Alice Springs jail. In Ogle v Strickland (1987) 71 ALR 41, the special interest test developed in the ACF and Alcoa cases was also applied to grant priests of the Anglican and Catholic churches standing to claim that the film Hail Mary was blasphemous and to seek judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) s 5 of the decision of the Censorship Board allowing it to be screened. 40. In North Coast Environment Council v Minister for Resources (1994) 85 LGERA 270 at 291, Sackville J said: ‘Although cases interpreting the phrase aperson aggrievedo in the ADJR Act have used broad language, it has never been held that the principles governing the award of declarations and injunctions under the general law have been superseded by different and broader conceptions under the ADJR Act’. 41. See further 19.30 and following. 42. Sinclair v Mining Warden at Maryborough (1975) 5 ALR 513; see also BHP Coal Pty Ltd v Robertson (2005) 139 LGERA 77. 43. See also MBF Sealink Pty Ltd v Matthews (1993) 80 LGERA 437. 44. Pursuant to the Local Government Act 1962 (Tas) s 733d(3c)(b)(i). A person who would have been entitled to become an objector and, therefore, appeal against a grant of planning permission has also been held to be a ‘person with a proper interest’ in enforcing the law under the Land Use Planning and Approvals Act 1993 (Tas) s 64: see Holeywell v Clarence City Council [1994] ELR 163.

45. Australian Conservation Foundation v Commonwealth (1980) 28 ALR 257. 46. Fraser Island Defenders Organisation Ltd v Hervey Bay Town Council [1983] 2 Qd R 72; see also Friends of Castle Hill Association Inc v Queensland Heritage Council (1993) 81 LGERA 346; Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2013] ACTCA 51. 47. Now repealed by the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA). 48. See also Sinclair v Murphyores Inc Pty Ltd [1978] Qd R 239; Australian Conservation Foundation v South Australia (1990) 53 SASR 349. 49. (1980) 28 ALR 257 at 291. 50. See 10.69. 51. See 19.39. 52. On merits appeals, see further 22.2 and following. See also Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39, 1995; What Decisions Should be Subject to Merits Review?, 1999. 53. The Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) s 3(4) states, not very helpfully, that a reference to a person aggrieved by a decision includes a reference to a person whose interests are adversely affected by the decision. See also Judicial Review Act 1991 (Qld) s 7; Judicial Review Act 2000 (Tas) s 7. A community organisation is unlikely to be ‘aggrieved’ by a decision if it was not in existence at the time the decision was made; or only came into existence shortly before it and does not otherwise have any spiritual or cultural values, nor any previous history of involvement with planning and environmental matters; Concerned Citizens of Canberra v Chief Planning Executive (Planning and Land Authority) [2014] ACTSC 165. 54. The interpretation of this phrase in the Environmental Protection Act 1994 (Qld) s 520 makes it clear that appeal rights are not extended to ‘third parties’ in this legislation. Even more clearly, injunctions for contraventions of the Planning and Development Act 2005 (WA) may only be made on an application by the ‘responsible authority’ (s 216), thus ruling out citizen enforcement. 55. For example, Environment Protection Act 1970 (Vic) s 33B. 56. Administrative Decisions (Judicial Review) Act 1989 s 4A (‘eligible person’). 57. For example, Environmental Management and Pollution Control Act 1994 (Tas) s 48(1); Planning and Development Act 2005 (WA) s 242. 58. If a question of standing arises, then, consistent with the remarks of the High Court in Onus v Alcoa, the courts have no duty to determine that question as a preliminary issue, rather than as an issue to be determined at the same time as the other issues in the proceedings: see Drewitt v Resource Management and Planning Appeal Tribunal (No 2) (2008) 161 LGERA 321. 59. See also Geelong Regional Commission v Barrabool Shire Council (1984) 14 APAD 258. 60. See also City of Altona v Environment Protection Authority (1985) 16 APA 470; Brambles Australia Ltd v Environment Protection Authority [1999] VCAT 2176, in which the tribunal agreed that a broad interpretation of ‘person whose interests are affected’ was consistent with the general scheme of the Environment Protection Act 1970 (Vic). 61. For example, Linaker v Greater Geelong City Council [2010] VCAT 1806; though the substance of the issues was also dealt with at the request of the respondent. The approach in this case has, however, been doubted subsequently: see Dual Gas Pty Ltd v Environment Protection Authority [2012] VCAT 308. Where the subject matter of the appeal raises significant issues, courts and tribunals may be more reluctant to deny consideration of the substance of those issues by finding against the standing of the applicant: see Thirteenth Beach Coast Watch Inc v Environment Protection Authority [2009] VSC 53; Environment East Gippsland Inc v VicForests [2010] VSC 335; Dual Gas Pty Ltd v Environment Protection Authority [2012] VCAT 308. As to the history of

‘objector appeals’, see Justice Stuart Morris, ‘3rd Party Appeals against Works Approvals: A Personal Journey’ (VCAT) [2004] VicJSchol 5. 62. This has been interpreted to mean a real, not fanciful, detriment that may be minor, not necessarily substantial: see Partland v City of St Kilda (1989) 41 APA 178; Ellul v Shire of Melton (1989) 41 APA 193. In Jelinek v Shire of Alexandra [1990] ELR 029, it was held that nearby landowners, who should have been notified of an application but were not, had not suffered a substantial disadvantage thereby because there was no real nexus between the grant of the permit and those landowners’ use and enjoyment of their land. 63. Section 57(1). In Lowden v Shire of Kilmore (1989) 41 APA 319, it was said that a person affected by an application for planning permission could be one whose financial or aesthetic interests or whose enjoyment of life are touched or benefited or which suffer detriment. It was unnecessary to live next door in order to have a legitimate interest in the aesthetic features of an area. 64. ‘Objector’ is not defined but an objector is normally someone who has lodged a written submission to a development application: see, for example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 4. See also Planning and Development Act 2007 (ACT) Sch 1 (interested entities that may appeal are those that lodged representations in relation to an application); Planning Act 1999 (NT) s 117 (person who made a submission may appeal). 65. See Friends of Reserves v Darebin City Council [2005] VCAT 137; Cardoso v Greater Bendigo City Council (Red Dot) [2006] VCAT 2043; Geelong Community for Good Life v Greater Geelong City Council [2008] VCAT 1687. 66. Planning and Environment Act 1987 (Vic) s 117. 67. See Preston, Environmental Litigation, Law Book Co, Sydney, 1989, p 41. 68. See [135]. 69. While the term ‘person affected’ confers broad rights of appeal on third parties, it is not openended: see Proctor v Melton Shire Council [2003] VCAT 1520; Schadband v Murrindindi Shire Council [2005] VCAT 1039; Friends of the Wildlife Reserves Inc v Darebin City Council [2005] VCAT 137 at [28]; Cardoso v Greater Bendigo City Council [2006] VCAT 2043; Geelong Community for Good Life v Greater Geelong City Council [2008] VCAT 1687; Schinkel v Bass Coast Shire Council [2009] VCAT 2644 (occasional visitor not ‘affected’). 70. See also Brambles Australia Ltd v Environment Protection Authority [1999] VCAT 2176, in which the tribunal agreed that a broad interpretation of ‘person whose interests are affected’ was consistent with the general scheme of the Environment Protection Act 1970 (Vic). 71. See ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104 at [28]; Viento Property Ltd and Western Australian Planning Commission [2009] WASAT 229. 72. Argos Pty Ltd v Corbell, Minister for Environment and Sustainable Development [2014] HCA 50. 73. Allars, ‘Standing: The Role and Evolution of the Test’ (1991) 20 Fed L Rev 83 at 95; quoted with approval by Sackville J in North Coast Environment Council v Minister for Resources (1994) 85 LGERA 270 at 281. 74. See also Thomas J in Central Queensland Speleological Society Inc v Central Queensland Cement Pty Ltd (No 1) [1989] 2 Qd R 512 at 523–5. 75. See also Byron Environment Centre Inc v The Arakwal People (1997) 96 LGERA 1; compare The Aboriginal Community Benefit Fund Pty Ltd v The Batemans Bay Local Aboriginal Land Council (1996) 92 LGERA 212, reversed in part by (1997) 93 LGERA 345 (CA). 76. (1989) 76 LGRA 200 at 206. 77. (1995) 85 LGERA 296.

(1994) 85 LGERA 270. For commentary on these cases, see McDonald and Munchenberg, ‘Public 78. Interest Environmental Litigation — Chipping Away at Procedural Obstacles’ (1995) 12 EPLJ 140. 79. (1994) 85 LGERA 270 at 293. 80. Supreme Court of Tasmania file 49/2014. Available at . 81. (1997) 98 LGERA 258 at 266; see also National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592. 82. Alliance to Save Hinchinbrook v Environmental Protection Agency (2006) 145 LGERA 32; Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2013] ACTCA 51. 83. Forestry Act 2012 (NSW) s 69ZA. But note the commentary at [20.25] (privative clauses). 84. [2000] QSC 172. See also the case note by Haigh at (2000) 17 EPLJ 237. 85. As Haigh, note 77 above, points out, this test is similar to that propounded by the Australian Law Reform Commission in its Report, Beyond the Door Keeper: Standing to Sue for Public Remedies, ALRC Report No 78, in which the commission substantially revised the recommendations made in its earlier report, Standing in Public Interest Litigation, ALRC Report No 27, AGPS, 1985, that every person should have standing unless the court finds that the plaintiff is merely meddling. It then went on to devise a somewhat complicated test to determine whether a person was ‘merely meddling’. The test adopted by Chesterman J also reflects criteria outlined in the Environmental Protection Act 1994 (Qld) s 505, for deciding whether a plaintiff without a ‘special interest’ should nevertheless be granted leave of court to bring proceedings. 86. [2000] QSC 172 at [36]. 87. Save the Ridge Inc v ACT (2003) 133 LGERA 188. ‘Abuse of process’ is, however, a criterion against which a court must assess an application for leave to bring proceedings under the Environmental Protection Act (Qld) s 505: s 505(2)(a)(ii). 88. Per Megarry J in Re Argentum Reductions (UK) Ltd [1975] 1 WLR 186 at 190. 89. Jacobs, ‘Standing to Sue in Federal Courts’ (1971) 41 Cin LR 669 at 687. 90. In Phelps v Western Mining Corporation Ltd (1978) 20 ALR 183 at 189, Deane J remarked that the ‘floodgates’ argument was ‘[U]nreal, in that the argument not only assumes the existence of a shoal of officious busybodies agitatedly waiting, behind the “floodgates”, for the opportunity to institute costly litigation in which they have no legitimate interest but treats as novel and revolutionary an approach to the enforcement of laws which has long been established in the ordinary administration of the criminal law’. 91. Scott, ‘Standing in the Supreme Court: A Functional Analysis’ (1973) 86 Harvard LR 645 at 674, quoted by Wilcox J in Ogle v Strickland (1987) 71 ALR 41. 92. This provision may be found in all environmental legislation: for example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 123; Protection of the Environment Operations Act 1997 s 252. This right is not available, however, in respect of forestry operations taking place under integrated approvals: Forestry and National Parks Estate Act 1998 (NSW): see Ricketts and Rogers, ‘Third Party Rights in NSW Environmental Legislation: the Backlash’ (1999) 16 EPLJ 157. 93. Not only may ‘any person’ enforce specific environmental laws, but also ‘any person may bring proceedings in the Land and Environment Court for an order to restrain a breach (or a threatened or apprehended breach) of any other Act, or any statutory rule under any other Act, if the breach (or the threatened or apprehended breach) is causing or is likely to cause harm to the environment’: Protection of the Environment Operations Act 1997 (NSW) s 253. For example, in Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294, this provision was held to extend the jurisdiction of the Land and Environment Court to a

breach of the Water Act 1912, which would not otherwise be within the jurisdiction of the court as a ‘planning or environmental law’ under the Land and Environment Court Act 1979 (NSW) s 20. Note, however, that to obtain relief in ‘any person’ enforcement proceedings, some harm to the environment must be established or anticipated; and that the nature of that relief will lie in the discretion of the court: see, for example, McCallum v Sandercock [2011] NSWLEC 175. 94. See Pain, ‘Third Party Rights — Public Participation under the Environmental Planning and Assessment Act 1979 (NSW): Do the Floodgates Need Opening or Closing?’ (1989) 6 EPLJ 26 at 34; Cripps CJ, Administration of Justice in Public Interest Litigation, Proceedings of the International Conference in Environmental Law, National Environmental Law Association of Australia, 1989. 95. See, for example, Planning and Environment Act 1987 (Vic) ss 114 (enforcement order) and 125 (injunction); Environmental Protection Act 1994 (Qld) s 507 (enforcement order for a development offence); Sustainable Planning Act 2009 (Qld) ss 597 (proceedings before a magistrate) and 601 (enforcement order for a development offence). Note that these enforcement provisions in Queensland do not extend to applicants seeking an injunction or other remedy. 96. Crowther v Brisbane City Council [2010] QCA 348 at [9]. 97. Environment Protection Act 1993 (SA) s 104(7), (8). 98. Protection of the Environment Operations Act 1997 s 219. 99. Planning and Environment Act 1987 (Vic) s 82. 100. LPD Property Pty Ltd v Moreland City Council [2011] VCAT 65 at [12] per Dwyer DP. 101. Section 14; and see Friends of Hinchinbrook Society Inc v Minister for Environment [1996] FCA 942; (1997) 95 LGERA 229 (FCA(FC)). 102. Section 131. 103. Section 487. This provision has been under attack by conservative elements following successful appeals by conservation groups in a number of cases, though at time of writing the provision remains intact. In any case, removing this provision would only send issues of standing back to the Federal Court to determine; see 19.30 and following. 104. [2000] FCA 1878; and see McGrath (2001) 18 EPLJ 23. The court subsequently issued an injunction in relation to the killing of the flying foxes: see Booth v Bosworth [2001] FCA 1453; see also Thiriet, ‘Relocation of Flying Fox Colonies in Queensland’ (2005) 22 EPLJ 231. 105. Contrast this case in particular with Sinclair v Mining Warden at Maryborough (1975) 5 ALR 513, where the plaintiff failed to gain standing before the court to challenge a grant of mining leases on Fraser Island. The plaintiff asserted that he had various grounds to support his claim for standing: as a resident of Maryborough (a town not far from Fraser Island) he had a legitimate interest in the management of the natural resources of the Island; he was President of the Fraser Island Defenders Organisation Ltd, and he had expended much time, effort and expense in ensuring that labour conditions attached to the mining leases were complied with by the defendant. Sheahan J was able to dismiss the plaintiff’s application because none of the grounds put forward by the plaintiff were sufficient to withstand scrutiny under the Boyce formula. 106. Queensland Conservation Council Inc v Minister for Environment and Heritage [2003] FCA 1463; Minister for Environment and Heritage v Queensland Conservation Council Inc (2004) 134 LGERA 272. 107. Mees v Roads Corporation (2003) 128 FCR 418. 108. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2004] FCA 1510; leave to serve the proceedings was ultimately refused on jurisdictional grounds ([2005] FCA 664), but this was overruled by the Full Court in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116, allowing papers to be served; see also McGrath, ‘The Japanese Whaling Case’ (2005) 22 EPLJ 250; McGrath ‘Japanese Whaling Case Appeal Succeeds’ (2006) 23 EPLJ 333.

109. Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178; FCAFC 175; Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 588. 110. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; FCA 399; Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670. 111. Lansen v Minister for Environment and Heritage [2008] FCA 903. 112. The majority of applications for judicial review of decisions made under the EPBCA are brought by ‘third parties’ using these extended standing provisions: see Baird, ‘Public Interest Litigation and the Environment Protection and Biodiversity Conservation Act’ (2008) 25 EPLJ 410; McGrath, ‘Flying Foxes, Dams and Whales; Using Federal Environmental Laws in the Public Interest’ (2008) 25 EPLJ 324; Lipman, ‘An Evaluation of Compliance and Enforcement Mechanisms in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) and their Application by the Commonwealth’ (2010) 27 EPLJ 98 at 105. For a decision where the complainant could not show that she had been engaged in a ‘series of activities’, see the decision of the Federal Magistrates Court in Paterson v Minister for the Environment and Heritage [2004] FMCA 924. 113. This means that the relator and not the Attorney-General will be liable to pay the respondent’s costs if the action fails. However, the Attorney-General’s immunity in this regard is subject to appropriately drawn statutory provisions allowing a court to make an order for costs against an Attorney-General. One such provision is the Supreme Court Act 1970 (NSW) s 76(1): see Wentworth v Woollahra Municipal Council (No 3) (1985) 59 ALJR 36. In Johnson v Kent (1975) 132 CLR 164, Fox J refused to make an order forcing unsuccessful relators to pay the successful respondent’s costs because of the public interest nature of the litigation. 114. For some examples, see Cooney v Ku-ring-gai Municipal Council (1963) 114 CLR 582 at 604. 115. For example, Attorney-General v Board of Water Supply and Sewerage (1916) 16 SR (NSW) 437, where the Attorney-General was joined as plaintiff to an action brought by neighbours to a sewerage farm complaining of offensive and unhealthy odours. 116. The differences between the respective roles of English and Australian Attorneys-General have been highlighted in the ALRC’s Discussion Paper on Public Interest Suits: Access to the Courts — 1 Standing — Public Interest Suits, Discussion Paper No 4, AGPS, 1977, pp 8–9. 117. Enforcement of Public Interests Ordinance (now Act) 1973 (ACT). 118. ALRC, Access to the Courts — 11 Class Actions, Discussion Paper No 11, AGPS, 1979, at 98. See, for example, Sustainable Planning Act 2009 (Qld) ss 598, 600, 602, 607, where representative actions are specifically acknowledged. 119. Section 33C. 120. Section 33D. The term ‘sufficient interest’ is not defined by the legislation. Standing will therefore depend on the common law rules or statutory entitlements outlined in this chapter. 121. Kelly v Mosman Municipal Council [2010] NSWCA 370. 122. This may be done through the assistance of the Environmental Defenders Office (EDO) . And see also . 123. See also, for example, Environment, Resources and Development Court Act 1993 (SA) s 17(5); Sustainable Planning Act 2009 (Qld) s 469; State Administrative Tribunal Act 2004 (WA) s 37(1). For examples in which this right has been exercised, see National Trust of Australia (NSW) v Heritage Council of New South Wales [1999] NSWLEC 104; Brown v Gosford City Council [2006] NSWLEC 56. 124. For example, State Administrative Tribunal Act 2004 (WA) s 37. In ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104 at [28], the test for

intervention under this provision in relation to the Planning and Development Act 2005 (WA) was held to be the same as the test for standing under s 242 of that Act, namely, that to be granted leave to intervene, a person must demonstrate at least an interest sufficient to meet the test for standing identified in Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493. Section 242 states ‘The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter.’ 125. Re the State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125 at [41]. 126. Land and Environment Court Act 1979 (NSW) s 38(2). This form of order is frequently referred to in New South Wales as a ‘Double Bay Marina order’ after the case of Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 at 314–5, where principles applicable to the exercise of discretion to make such orders were spelt out. See also, for example, Resource Management and Planning Tribunal Act 1993 (Tas) ss 16(1)(c) and 22(1). 127. Ali v Liverpool City Council [2009] NSWLEC 107. 128. See, for example, ADI Ltd v Hawkesbury City Council (2001) 117 LGERA 117; Naylor v Ku-ring-gai Council [2008] NSWLEC 1380. 129. See, for example, Land and Environment Court Act 1979 (NSW) s 39A; Environment, Resources and Development Court Act 1993 (SA) s 17(1), (2); State Administrative Tribunal Act 2004 (WA) s 38; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 60. 130. Planning and Development Act 2005 (WA) s 243. 131. Morrison Design Partnership Pty Ltd v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361. 132. Pitt v Environment Resources and Development Court (1995) 66 SASR 274; Onesteel Manufacturing Pty Ltd v Environment Protection Authority (2005) 92 SASR 67; Shire of Augusta-Margaret River v Gray [2005] WASCA 227. 133. Australian Catholic University v Minister for Planning and Infrastructure [2013] NSWLEC 174. 134. Michael Suttor Pty Ltd v Woollahra Municipal Council [2009] NSWLEC 1256 at [16]. 135. Planning and Environment Act 1987 (Vic) ss 82, 83(2) and 83A(2). 136. See, for example, Young v Environment Protection Authority [2009] VCAT 564. 137. See Edgar, ‘Participation and Responsiveness in Merits Review of Polycentric Decisions: A Comparison of Development Assessment Appeals’ [2010] 27 EPLJ 36 at 43–4. The author’s conclusion about why this should be so raises the issue of the adversarial nature of the Land and Environment Court compared to the inquisitorial nature of Victorian Civil and Administrative Tribunal: above at 48. 138. Planning and Environment Act 1987 (Vic) ss 83(2) and 83A.

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Chapter 20 Enforcement of Environmental Laws: Remedies for Regulators Introduction 20.1 Regulatory authorities may enforce environmental laws in three different ways: by issuing administrative orders such as environment protection orders; by prosecuting offenders; and by seeking civil remedies. Administrative orders do not involve court-based action; however, criminal and civil enforcement can only be undertaken in court-based proceedings. These remedies, where applicable, are all available to the regulator in the context of any particular contravention of environmental legislation. It is for the regulator to determine which ones will be most helpful and effective in the circumstances of the case. It is not unusual, for example, for an administrative order to be followed by prosecution for an environmental offence; the remedies serve different purposes at different points in time in response to the commission of environmental offences. An environmental protection order may be proactive, designed to prevent the commission of an offence, or at least provide an immediate and effective response to an incident; civil enforcement may seek to prevent the commission or recurrence of, or remedy, an unlawful activity; criminal prosecution is largely reactive, designed to punish and sometimes remedy but also to deter the commission of similar offences in the future. The availability of these means of enforcement is common to most regulatory regimes in all Australian jurisdictions. 20.2 These forms of action are recognised by the remedies being sought. A successful criminal prosecution will usually result in a fine or possibly a jail term, although other remedies, such as community service orders, are available. Civil action will generally be seeking either damages to remedy some personal injury or harm, an injunction to restrain continuing or anticipated unlawful conduct, or a declaration of the law. Additional orders,

such as orders for restoration and rehabilitation, are also open to many courts in sentencing environmental offenders, and also in remedying breaches through civil litigation. An administrative order may be issued in anticipation of harm occurring, or may seek restoration or rehabilitation of the environment after harm has occurred. 20.3 Civil action may often be commenced in a specialist environmental court or tribunal, while criminal proceedings are either undertaken in a specialist environmental court or within the normal court structure. Administrative enforcement does not [page 840] depend initially on court proceedings, although criminal or civil proceedings may follow any refusal to comply with such an order. Criminal and civil remedies may be pursued independently of each other, subject to any (unlikely) contrary intention evinced by statute. For example, a decision by a regulatory authority to prosecute for a breach of legislation does not preclude an application for enforcement by way of civil remedies; for example, remediation.1

Administrative remedies Administrative orders for environment protection 20.4 When an incident occasioning environmental harm occurs, or a regulator suspects that, perhaps because of lax standards of management, an incident might occur, the regulator may issue a notice or order requiring specified conduct to be stopped or prevented, or requiring that certain positive action be taken. These administrative orders enable regulators to respond quickly and positively to both incidents and threats, without needing to seek court orders. After all, by the time a court order is obtained, the threatened incident may have occurred, or the damage escalated. The range of these administrative orders enables regulators, for example, to require compliance with conditions of development consent or otherwise restrain or remedy development offences;2 prohibit, restrict or require specified action to protect natural3 or cultural, including Aboriginal, heritage;4 direct the cleanup or prevention of pollution;5 require investigation and assessment of site contamination;6 stop or remediate activities that are causing or threatening harm to threatened species, native vegetation, water and other natural resources;7 and compel private or public

[page 841] landowners to carry out conservation or land management works on their land.8 Such a notice or order will have effect until the recipient has complied with it or the issuer has indicated it is satisfied that no more needs to be done.9 Except where an appeal would not be appropriate, for example clean-up notices in respect of pollution, where action needs to be taken immediately,10 a person served with an administrative order generally has a right of appeal on the merits.11 Such an appeal may claim, for example, that there was no factual basis for the making of the order,12 or that the order goes beyond what is reasonably necessary to remedy the breach or anticipated breach.13 20.5 The power to issue such orders is constrained only by the legal principles that orders should reflect a reasonable and proportionate response to the contravention in respect of which the order is issued; and that the content of an order should be within the powers conferred by the statute.14 If that were not so, then regulators could effectively amend existing legal standards without parliamentary scrutiny. In Slack-Smith v Director-General, Department of Land and Water Conservation (2003) 132 LGERA 1, for example, an order that required provisions for weed control and pest management that were more stringent than existing law were declared unlawful by the court and severed from the rest of the order. Similarly, in Holmes v Director-General, Department of Infrastructure, Planning and Natural Resources (2005) 139 LGERA 102, a provision that conferred power to order remediation work to be done following unlawful clearing of native vegetation was interpreted by the court not to extend to orders couched in terms of prohibitions on work rather than positive directions for remediation.15 In Hakim v Waterways Authority of New South [page 842] Wales (2006) 149 LGERA 415, a stop order requiring that all work on a project cease was held to go beyond the statutory authority to order a person not to engage in the contravening activity; the order had to state the activity in which the recipient was to refrain from engaging.16 20.6 Persons served with such orders should also be able to understand what they have to do to comply with them. As failure to carry out, or breach of, an order will be a criminal offence,17 it is essential that those served with such orders should know how to avoid criminal liability by complying with

the order. Legislation conferring powers to issue such orders on regulators frequently requires that they ‘specify’ the reasons for which the notice is served, and indicate the measures to be taken to comply with the order.18 This means that if an order is vague, uncertain or ambiguous as to its requirements for compliance, it risks being declared void and of no effect. For example, in Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 84 LGERA 113, the Supreme Court of Western Australia held that an abatement notice that purported to instruct the person on whom it was served to take steps ‘to the satisfaction of the inspector’ or ‘which may be approved by the Director’ did not meet the statutory requirement to ‘specify’ the measures to be taken.19 The person on whom the notice was served could not know with sufficient clarity what needed to be done to prevent, control or abate the discharge of waste. Similarly, a requirement that the applicant should not cause unreasonable interference with the amenity of other persons clearly did not specify the measures to be taken. The approach of the court in this case is similar to that adopted by the Victorian Supreme Court in Environment Protection Authority v Simsmetal Ltd (1990) 70 LGRA 312, in which a notice that purported to instruct the recipient to undertake clean-up measures to be specified by the EPA, after submission of a program for approval, was held to be invalid because the notice did not specify any clean-up measures and the recipient could not know how to comply with it.20 In both cases the court considered it was inappropriate to sever the invalid conditions from the valid [page 843] conditions since the remedy — the issuance of a fresh notice — was relatively simple. The notices were, therefore, invalid and of no legal effect and need not be obeyed. 20.7 Similar principles have been applied to orders issued by local authorities.21 Where the recipient of an order does not comply with the terms of the order, the regulatory authority may be empowered to do, or arrange to have done, any necessary work and recover the reasonable costs from the offender.22 These costs may extend to all the administrative as well as operational costs, including investigation and legal expenses, and may be recovered in civil court action as a debt owed by the recipient of the order to the regulator. The court may also have power to secure this debt to any other property of the offender23 and indeed this debt may even take priority over all other debts registered against that property.24

20.8 The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) links the ability of the minister to issue a remediation order with contravention of a civil penalty provision, described at 20.14. Where an action by a person contravenes a civil penalty provision, then the minister may, within six years of the act constituting the contravention, make a remediation determination requiring the person to remediate or mitigate the damage,25 and specifying particular action and requiring security and specified amounts of money to be spent on the specified action.26 A person served with an order may ask the minister to reconsider and ultimately apply to the Federal Court to have the order set aside on prescribed grounds.27 The court may also order compliance with the determination order and payment of a pecuniary penalty for breach of the civil penalty provision.28 Examples of remediation orders made by the minister include29 requiring Singleton Council in New South Wales to spend $100,000 over five years to protect and manage a critically endangered ecological community, partly and unlawfully cleared; and an order to manage an ecologically endangered community and help natural regeneration by management actions, including by excluding domestic stock from the area, controlling weeds and feral animals at the site, and conducting ongoing monitoring and reporting. A useful order in relation to contraventions of heritage laws, which should perhaps extend to other offences, is the ability of the regulator, normally a minister, to order [page 844] that no development should take place for up to 10 years on land that has been the subject of an offence against heritage legislation.30

Other administrative action 20.9 Other ways of reacting to incidents or threats of environmental harm, discussed in other parts of this book, include sending warning letters; issuing penalty infringement notices (PINs);31 requiring environmental compliance or improvement plans or programs;32 negotiating management agreements;33 and amending, suspending or cancelling environmental licences or other authorisations.34

Civil remedies

20.10 Where breaches of the statutory scheme are detected, there are disadvantages to relying on predominantly criminal enforcement of environmental laws. Criminal prosecution is essentially reactive, not anticipatory or preventive; and since compensation for, or remediation of, environmental damage35 is not the primary purpose of criminal sanctions, penalties imposed, particularly by lower courts rather than specialist environmental courts, are likely to be less than would be imposed if the object was to compensate for damage caused. The criminal standard of proof is also more demanding than the civil standard: proof beyond reasonable doubt rather than proof based on the balance of probabilities, which is the civil standard. The separation of criminal and civil remedies, necessitating duplication of court proceedings in respect of the same incident causing environmental harm, if remedial as well as criminal sanctions are being sought, is, of course, unnecessarily cumbersome, time-consuming and expensive. There is much to be said for empowering the courts to grant a range of civil remedies where a criminal offence is proved to have been committed. Consequently, much greater attention has been given in modern environmental law to enforcement by means of civil remedies, not only as an alternative to criminal sanctions, but also engrafted onto criminal enforcement as a complementary means of more effectively remedying and compensating for environmental offences, and providing deterrents to others.36 20.11 Many, if not most, statutory schemes for environmental protection allow for civil enforcement of the legislation and instruments of management created under the [page 845] legislation. Civil enforcement may be undertaken by regulators;37 though since they generally have the power to issue the administrative orders described above without applying to a court, civil enforcement is more often undertaken by members of the public and local government in the absence of any action being taken by a designated regulator. Civil enforcement by members of the public is discussed in Chapter 21. One interesting development in the federal jurisdiction is to use civil remedies, in appropriate cases, to supplant recourse to criminal proceedings. For example, the National Greenhouse and Energy Reporting Act 2007 (Cth) and Water Act 2007 (Cth) rely solely on the civil remedies and penalties described below for enforcement of obligations under the legislation.

Enforcement orders 20.12 Unlike administrative orders, which may be issued by a regulatory authority without recourse to a court, enforcement orders of various kinds are court orders directed at compliance with regulatory schemes or requiring restoration, remediation or rehabilitation. Seeking relief by way of an enforcement order may be available to both regulators and any other person. Provisions that enable ‘any person’ to ask a court to remedy or restrain a breach of environmental legislation are discussed further at 21.22. In Queensland, enforcement orders enable ‘a person’ to seek court-based orders to remedy or restrain an offence and for restoration or rehabilitation38 where a wide range of offences have been or are being committed, or will be committed unless the order is made. In Victoria, the Victorian Civil and Administrative Tribunal may issue an enforcement order at the request of any person to direct a person who is acting, or who, if not constrained will act, in breach of a planning scheme, permit or planning agreement, to stop the use of land, restore it to the condition it was in before the breach occurred, or otherwise comply.39 In Western Australia, the power to apply to court for restraint of unlawful development, pollution or unlawful clearing, appears to be restricted to the responsible authority.40 20.13 The ‘remediation order’ that may be sought by the minister in the Federal Court for contraventions of the EPBCA41 fulfils a similar function. The minister may apply to the Federal Court for a remediation order, including security for carrying out the order, if a person has engaged, or is engaging, in conduct constituting an offence or other contravention of the Act or the regulations. The order may require the person [page 846] to take general or specific remediation action to repair or mitigate damage that may or will be, or that has been, caused to the environment by the contravention. In South Australia, contraventions of the Natural Resources Management Act 2004 (SA) may be addressed, for example, by asking the Environment, Resources and Development Court (ERD Court) for an order restraining specified conduct and by an order requiring specified action to be taken.42 Similar provisions exist under the Development Act 1993 s 85. Such an order may be revoked or varied to better reflect the objects of the legislation or relevant Development Plan.43

Other forms of court-based ‘enforcement orders’ include heritage orders, to protect the heritage significance of places or objects.44 Enforcement orders for restoration, rehabilitation and other purposes may also be made by courts in sentencing for criminal offences.45

Civil penalty provisions 20.14 As an alternative, or possibly additional remedy, to prosecution, legislation may specify that certain provisions may be treated as ‘civil penalty’ provisions.46 This has the advantage, as a civil proceeding, that the offence only has to be proved on the balance of probabilities. It also enables the regulator to ask for civil penalties rather than criminal sentencing. The concept of a pecuniary penalty for breach of a civil penalty provision has been introduced into the EPBCA.47 It identifies certain conduct as constituting a civil penalty offence; for example, taking any action that might have a significant impact on listed threatened species.48 Such actions may, and indeed generally will, also constitute criminal offences.49 Where a person has contravened a civil penalty provision, the minister may ask the Federal Court for an order that the wrongdoer pay to the Commonwealth a pecuniary penalty, determined by the court, after taking into account the nature of the contravention and the loss or damage suffered.50 The court, however, cannot make a pecuniary penalty order against a person if that person has already been convicted of an offence for substantially the same conduct as that constituting the contravention,51 [page 847] or proceedings for such an offence are commenced while civil penalties are being determined.52 There is no restriction, however, on the commencement of criminal proceedings after civil penalties have been awarded,53 although there are restrictions in using evidence from the civil proceedings to support the subsequent prosecution.54 20.15 In South Australia, under the Environment Protection Act 1993 s 104A, it is clear that a similar power to recover civil penalties (including by negotiation out of court) is to be exercised as an alternative to criminal prosecution; and in any case is only available for offences of strict liability not involving mens rea: see 20.39 and following. An offender may choose to be prosecuted for a criminal offence rather than become subject to civil penalty provisions. In exercising their powers to proceed and sentence by way of civil

penalty, both the regulator and the court are instructed to have regard to relevant considerations prescribed by the section, including the seriousness of the offence, the purpose of the conduct and the offender’s record.55 20.16 The concept of pecuniary penalties is well understood in trade practices legislation. In Minister for the Environment & Heritage v Greentree (No 3) (2004) 136 LGERA 89, Sackville J in the Federal Court held that the approach to pecuniary penalties that had been adopted under the trade practices regime was appropriate generally to proceedings under the EPBCA, in this case to punish deliberate clearing of a Ramsar-listed wetland. In determining an appropriate penalty the court took into account, among other circumstances, that: the actions of the respondents were deliberately planned; they were motivated by commercial considerations; and they caused significant ecological damage.56 There is no doubt that the civil penalty provision has characteristics both of civil and criminal enforcement; the purposes of these proceedings involve deterrence and the consequences can be punishing.57 The amount of pecuniary penalty may also be strongly influenced by the seriousness with which parliament views the conduct, as indicated by the criminal penalties for the offence. In Greentree, this led the court to impose penalties on the defendants of $150,000 and $300,000.58 [page 848] 20.17 In Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753, the court imposed a penalty of $220,000 upon the respondent corporation for the clearance of 170 eucalypts on a property that was within the nesting range of the south-eastern red-tailed black cockatoo, a listed endangered species under the EPBCA. The deliberate nature of the contravention, the respondent’s indifference to the consequences of contravention, the significance of the contravention to the endangered species, and the need to impose a penalty commensurate with the need for general deterrence all pointed to a penalty significantly greater than that suggested by the parties ($110,000). By contrast, civil penalties awarded in two fisheries cases were consistent with the agreement suggested by the parties.59 In Minister for the Environment, Heritage and the Arts v PGP Developments Pty Ltd [2010] FCA 58, the court also accepted an agreed civil penalty of

$40,000 was appropriate for breaches of approval conditions relating to the construction of lagoons on a golf course and related residential development close to the Great Barrier Reef World Heritage Area. The court took into account the respondent’s early cooperation with the investigation, the remedial action voluntarily undertaken and the fact that the contravention did not result in actual damage to the reef, even though the risk of damage was ‘significant’.

Enforceable undertakings 20.18 As an alternative to court-imposed remedies for breaches, the concept of regulators entering into environmental undertakings with those in breach has been seen as having definite advantages.60 In essence this would be possible where a breach has occurred or is anticipated and an administrative resolution based on enforceable undertakings is to the advantage of both regulator and regulated in ensuring compliance with the law; in other words, an outcomes-based solution rather than simple punishment, that does not depend on court-based action and findings of guilt. To some extent this already happens when environmental regulators hold off prosecution for breaches, on the understanding that offenders will enter into pollution reduction plans or some such similar course of action. In New South Wales, voluntary agreements have also been used in court-based actions for breaches of native vegetation clearance laws to reduce penalties for breaches based on agreed future outcomes.61 [page 849] 20.19 Enforceable undertakings have been introduced into the EPBCA,62 the Protection of the Environment Operations Act 1997 (NSW),63 the Environment Protection Act 1970 (Vic)64 and the Sustainable Forests (Timber) Act 2004 (Vic).65 Enforceable undertakings have proved effective for regulators in other regimes, notably the Australian Securities & Investments Commission and the Australian Competition and Consumer Commission. The EPBCA provision allows the minister to accept a written undertaking given by a person in breach of a civil penalty provision, in which the person undertakes to pay a specified amount, within a specified period, for the purpose of activities directed towards the protection and conservation of the matter protected by the civil penalty provision. Undertakings given under these provisions include66 two New South Wales mining companies agreeing to pay $1,450,000 in an enforceable undertaking after damaging three

endangered swamps; and $305,000 committed by a plantation timber company to repair damage done to a critically endangered grassland. 20.20 The New South Wales provision is much broader. The regulator may accept a written undertaking given by a person in connection with a matter in relation to which the regulator has a function under the Act. The undertaking, which is not restricted to the matter involved in the offence, may be enforced by civil process in the Land and Environment Court.67 Several undertakings have been negotiated,68 including $100,000 to help improve land and water quality in the Hunter River catchment following releases of pollution from a coalmine; $120,000 for environmental rehabilitation for unauthorised emissions of sewage; $100,000 for rehabilitation work along the Thredbo River following pollution caused by an escape of diesel oil; $55,000 for research into surface soil acidity following an incident when almost one tonne of ammonium nitrate was accidently dropped into Newcastle Harbour while being unloaded from a ship; $79,800 for a water quality improvement initiative following the accidental discharge of poultry blood into a stormwater drain; $100,000 to the Environmental Trust following the unlawful disposal of police evidence exhibits; $120,000 to local environmental programs after a water pollution incident at the Caltex Kurnell oil refinery; and $100,000 to fund a Sustainable Communities Garden Project following an incident of water pollution emitted into a stormwater drain. [page 850] The Victorian provision, described by Baird as ‘far more thorough than its New South Wales or federal counterparts’,69 unlike New South Wales, specifies that while the undertaking is in force, no criminal proceedings may be brought in respect of the contravention for which the undertaking has been sought.70 20.21 Essentially, the use of such undertakings should free up regulatory resources that would otherwise be focused on other forms of enforcement, while not diminishing the regulatory response to the breach. Both the regulator and the offender will likely assess the amount of fine or other order likely to be imposed in court-based enforcement proceedings in setting, or agreeing to, an undertaking. An undertaking also enables funding to be directed to matters that are not involved in the offence for which the undertaking is sought. For the offender the stigma of criminal prosecution is removed, though lurking in the background should the undertaking not be carried out in accordance with its terms and conditions.

Criminal enforcement Introduction 20.22 The threat of criminal prosecution has traditionally been, and still is, the backbone of legal enforcement of environmental laws. It is usual for a statute to specify that breach of any of its provisions, as well as breaches of regulations and instruments of management71 made under the legislative scheme, together with any failure to obey the instructions and administrative orders, lawfully given, of authorised officers acting under the legislation, will be regarded as a criminal offence.72 For a long time, environmental offences were not regarded as ‘real’ crime, that is, ‘not criminal in any real sense, but … which in the public interest are prohibited under a penalty’.73 This attitude invariably became apparent in the penalties imposed by courts that were more accustomed to dealing with offences to the person than offences against the environment.74 The emphasis was more on preventing a recurrence of the offence rather than on punishment for the breach.75 It is only recently that parliaments [page 851] have led a discernible shift in attitude to environmental crime, starting with the creation of new offences, and going on to widen the net around offenders, particularly corporate offenders, and dramatically increase the severity and type of penalties that can be imposed. The liability of corporations and corporate officers for offences committed by themselves or by their employees and agents has significantly widened beyond the scope of the general law and the range of penalties that may be imposed has been extended from fines and jail terms to include community service orders, orders for restoration and environmental enhancement and orders to publicise offences. 20.23 It might be argued that significant deterrents against breaking the law are in place but in general the deterrence factor is significantly lessened if courts do not impose realistic fines or other forms of punishment. Since the range of penalties prescribed by legislation and imposed by courts generally has tended to be fairly low,76 this has undoubtedly discouraged regulators from bringing criminal prosecutions.77 This situation improves markedly where parliaments prescribe more significant maximum penalties and offences are sent to a specialist environmental court for resolution;78 however,

not all such bodies are vested with the jurisdiction to hear criminal as well as civil cases.79 There is no doubt that the imposition of realistic penalties as punishment80 also fuels the purpose of deterrence; persons will not be deterred from environmental offences by nominal fines.81 Penalties must be imposed that: deter commercial considerations [page 852] or greed from overriding any need to comply with environmental laws;82 make it cheaper to prevent the commission of an offence than offend;83 deter the carrying out of activities that have significant potential for environmental harm;84 deter licence holders from breaching the conditions of their licences;85 and, in general, dissuade the offender from committing similar offences in the future.86 20.24 It is also true that, although it is ‘generally assumed that the penalties imposed by the courts have increased substantially over the last decade or so … identifying any statistical trend is made difficult by the range of circumstances giving rise to individual offences’.87 In jurisdictions, such as Victoria, that send environmental criminal offences to magistrates’ courts rather than to specialised environmental courts, collecting and assessing data is even more problematic because magistrates’ court decisions are not generally reported, and records are quickly destroyed.88 Trends to impose low-level fines, even in specialist environmental courts, may also be explained by the jurisdictional limits of ‘lower’ courts, that is, magistrates and district courts. The South Australian ERD Court is comprised of district court judges,89 and the ability of that court to impose anything close to the maximum penalties prescribed for environmental offences is severely constrained by its status. For example, despite statutory maximum penalties for environmental offences under the Environment Protection Act 1993 (SA) s 79 ranging up to $2 million for serious environmental harm, the ERDC cannot impose a fine of more than $300,000.90 This problem would be exacerbated, of course, if courts, thus constrained, sought to impose penalties based on an evaluation of where an offence sat within the range of its jurisdiction rather than the statutory maximum. In Director of Public Prosecutions v Transadelaide [2004] SAERDC 92 at [9], Trenordan J rightly stated that the obligation of the court ‘is to determine where the offence falls in the spectrum, having regard to

[page 853] the maximum penalty that may be imposed, and if on that consideration the court would have imposed a penalty greater than the maximum to which it is limited, it must impose that maximum’. 20.25 The Land and Environment Court of New South Wales, on the other hand, has the status of the Supreme Court. Chief Judge Brian Preston has said, in relation to the court’s role in establishing jurisprudence in relation to environmental crime:91 As a specialist environment court, the Land and Environment Court is better able to achieve principled sentencing for environmental offences. The Court, through its sentencing decisions, strives to achieve consistency and transparency in sentencing for environmental offences. It has been instrumental in establishing the world’s first database for environmental offences.

The database contains details of all sentences for environmental offences imposed by New South Wales courts since 1998, including variable characteristics of the offence and the offender.92 In practice, criminal enforcement is the sole domain of government regulators.93 Although environmental legislation does sometimes enable citizens to bring criminal proceedings,94 this usually requires leave of the court,95 and may be limited to situations where the appropriate regulator has declined to act. In any case, because citizens also often have rights under modern legislation to seek civil remedies against transgressors, inevitably this will be the favoured method of court-based action for individuals.96 20.26 Minor environmental offences are generally specified as summary offences; more serious offences may be specified as indictable offences. An indictable offence is one tried by a judge and jury; a summary offence is tried by a judge only. Sometimes there may be a choice of how to treat the offence. For example, proceedings for tier 1 offences under the Protection of the Environment Operations Act 1997 (NSW) may be dealt with summarily before the Land and Environment Court in its summary jurisdiction; or on indictment before the Supreme Court.97 In Queensland, the Environmental Protection Act 1994 (Qld)98 creates an indictable offence where the maximum penalty of imprisonment is two years or more. Indictable offences are heard before either the Supreme Court or District Court.99 All other [page 854] offences under the Act are dealt with summarily100 and are heard in a magistrates’ court.101 Offences described under the Environment Protection

Act 1970 (Vic) as subject to fine only are summary offences,102 and may be dealt with in courts of summary jurisdiction. However, a person who intentionally, recklessly or negligently pollutes the environment or permits an environmental hazard in specified circumstances is guilty of an indictable offence.103 Proceedings generally have to be commenced within six months to three years after either the date on which the offence is committed, or the date on which evidence of the offence first came to the attention of a relevant authorised officer or complainant.104 20.27 In practice, regulators treat criminal prosecution as a last resort. This is partly because of the inevitably high commitment of human and financial resources to court action, partly because, in some states, of the likelihood of penalties being imposed that the regulator considers unrealistic, and partly because it is usually more efficient to realise a solution to a problem through negotiation and use of administrative or civil tools and sanctions.105 Where prosecution is a possibility, then some regulators, particularly environment protection authorities, publish publicly available guidelines that indicate the regulator’s attitude to prosecution.106 This is particularly helpful where strict application of the principles of vicarious corporate liability — that is, the liability of corporations and corporate directors and managers for the acts and/or mental state of mind of their employees and contractors — could lead to prosecution of all or any of those legally responsible.107 Modern environmental management undoubtedly depends more on negotiation about outcomes and introduces more flexibility into decisionmaking than was formerly the case. However, this makes it even more imperative that a clear statement of objectives and commitments and the probability, rather than just the possibility, of strong and realistic responses to breaches should underpin regulatory regimes.

Investigation and proof of offences 20.28 Government regulators have expansive powers to investigate potential environmental breaches.108 These powers encompass rights to demand entry to [page 855] premises, take samples and photographs, require information to be given,109 and seize documents and equipment. These powers must, however, be used

legitimately for investigation of possible breaches not just for general factfinding or information gathering.110 For example, the power to enter land to determine whether a contravention is being committed, granted under the Native Vegetation Act 2003 (NSW) s 35, is ‘spent’ once that determination has been made. But until the determination is made, whether there is a contravention or not, then this power may be exercised any number of times, so long as it is for the stated purpose.111 20.29 In D’Anastasi v Environment Protection Authority [2011] NSWCA 1, the plaintiff challenged a notice issued by the authority pursuant to the Protection of the Environment Operations Act 1997 (NSW) s 193, asking 54 questions in relation to management and pesticide handling at premises in three different periods. Also required were records relating to the use and application of pesticides during these periods. The court held that the notice did not comply with s 193 because it did not identify a matter of the kind contemplated by that provision. The notice did not identify matters within the responsibilities and functions of the regulatory authority, in connection with which the information was required. The Court of Appeal commented that supervising courts must be careful to see that specialist courts and tribunals are not so carried away with the overarching importance of the legislation which they were created to police that they lose sight of basic principles of fairness and justice. The notice should not require the addressee to act as a detective; it might require some research to find information but it should not require the addressee to make extensive inquiries of others. It will be an offence to refuse to provide information after being requested to do so,112 or to furnish false records or other information in response to a notice issued to produce information.113 20.30 Environmental legislation also makes it easier to prove offences by making certain presumptions in favour of prosecutors; for example, that an occupier of premises will be taken to be responsible for pollution from premises;114 or that [page 856] certificates of analysis from certified laboratories will be taken, unless the contrary can be proved, as conclusive evidence of the findings.115 Nevertheless, the prosecutor still has to prove the offence ‘beyond reasonable doubt’ and failure to adduce evidence to satisfy this standard of proof may result in the prosecution failing.116 In Environment Protection Authority v Barlow,117 for example, the prosecution failed to prove an offence of polluting waters by cotton spraying because it could not establish beyond reasonable

doubt, among other things, that the chemicals could not have come from somewhere else.118 In all jurisdictions, a court, whether or not it imposes any other form of punishment, may order a convicted defendant to pay the reasonable costs of, and incidental to, inspections, measurements, tests, analyses and any other action taken by or on behalf of the administering authority or prosecution towards the investigation of the offence. This is in addition to the power of the court to order other costs.119 20.31 To prove a criminal offence, the prosecutor generally has to establish two particular elements ‘beyond reasonable doubt’.120 First, that there is some conduct that constitutes an offence (actus reus); second, that the conduct involves a guilty mind (mens rea). [page 857] The actus reus of an offence may be encapsulated simply by conduct that occurs in specified circumstances — for example, polluting without a licence121 (common for offences of strict liability)122 — or it may go further and require some consequential environmental harm to occur before the offence will be made out (more common where mens rea is an essential ingredient of the offence).123 This latter type of offence is sometimes referred to as a ‘result’ offence. Mens rea, the state of mind of the accused, can encompass wilful or intentional conduct, recklessness and negligence. A crime can be committed without any mens rea (referred to generally as offences of ‘strict liability’), but it cannot be committed without an actus reus. Most environmental offences are offences of strict liability.

Causation 20.32 Where the accused is charged with a ‘result’ offence, then in order to be successful the prosecution must prove ‘cause and effect’; that is, that the result has been caused by the conduct of the accused.124 It has been said that an offence of ‘causing’ environmental harm, for example pollution, must involve some positive act by the accused in the chain of acts and events leading to that result.125 For example, pollution of waters that results from a defectively installed pipe or other piece of equipment has been held to have been ‘caused’ by the defendant.126 The necessity to establish a ‘chain of causation’, however, may mean that a person may not be liable if some external force, for example, a natural occurrence or a human trespasser,

intervenes in such a way as to break the chain that connects the acts of the accused with the resulting environmental harm. For example, in Window v Phosphate Co-operative Co of Aust Ltd [1983] 2 VR 287, sulphur stored in a pit on the defendant’s land ignited, creating pollution by a cloud of sulphur dioxide smoke. It could not be definitely established why the sulphur had ignited, and Murphy J held, therefore, that no case had been made out against the defendant as having ‘caused pollution’. The defendant’s act in bringing the sulphur onto the land and storing it in the pit was merely a circumstance rather than a cause. Murphy J resisted the argument that where the cause was unascertainable, then the failure of the defendant to show a cause should lead to a conviction. [page 858] 20.33 Window was subsequently distinguished by the Land and Environment Court of New South Wales in Jones v Lysaght (Aust) Ltd (1983) 51 LGRA 90.127 In this case, oil in a pond caught fire as a result of the actions of a third party, present with the consent of the defendant. Sparks from a cutting torch had started a grass fire that had spread to the pond. The defendant held a licence under the Clean Air Act 1961 (NSW) to store the materials, but was nevertheless convicted of causing pollution contrary to the Act by reason of a failure to store the materials in a ‘proper and efficient manner’128 as required under s 14. McClelland J distinguished Window’s case in that the cause of the fire in Jones was well established, and linked directly to the defendant’s failure to properly store the materials. The statutory offence under the Environment Protection Act 1970 (Vic), by contrast, was to simply ‘cause pollution’. 20.34 The tendency in more recent cases has been to resist defences that seek to rely on a break in the chain of causation. More particularly, the United Kingdom House of Lords has revisited the assumption that omissions cannot constitute positive acts in establishing a chain of causation, by holding in Environment Agency (Formerly National Rivers Authority) v Empress Car Company (Abertillery) Ltd [1999] 2 AC 22, that an omission (that is, a failure to do something) can constitute a positive act if a plant is maintained in such a way as to allow trespassers to have access to it; in this case, an outlet pipe from a tank governed by a tap that had no lock. This means that the chain of causation cannot be broken merely by the intervention of trespassers129 or intervening forces, at least if these are clearly foreseeable, or if the premises are accessible to trespassers.130 The chain of causation is only likely to be broken by an extraordinary event that is not reasonably foreseeable.131

Courts in Australia have also taken the view that malfunctions of systems are reasonably foreseeable, even if they occur as a result of natural forces such as electrical storms,132 and precautions should be taken. At the same time, the degree of blameworthiness for such occurrences is often marked by the lower penalties imposed.133 [page 859] 20.35 Liability for omissions and failures to act can of course be specifically prescribed by statute. For example, since the Environment Protection Act 1993 (SA)134 imputes principles of vicarious liability to natural persons and corporations for the failure to act of employees and agents,135 this must signify that primary environmental offences under the Act can be committed by omissions to act. Although the chief offences of ‘causing’ serious or material environmental harm or an environmental nuisance by polluting the environment do not specifically extend the meaning of ‘cause’ to omissions, the term ‘pollute’ is defined as including failure to prevent emissions,136 and ancillary offences such as giving false or misleading information do specify omissions as a way of committing the offence.137 In New South Wales, the Protection of the Environment Operations Act 1997 (NSW) s 169(1) recognises that a corporation may contravene a provision of the Act by act or omission, and the primary offence of water pollution may be triggered in various ways by omissions.138

Classification of offences 20.36 In Environment Protection Authority v N (1992) 26 NSWLR 352, Hunt CJ in the New South Wales Court of Criminal Appeal said: ‘The extent to which the prosecution must establish that an accused person knew of the wrongfulness of his act has been the subject of a bewildering diversity of judicial opinion over the past century’. In He Kaw Teh v R (1985) 157 CLR 523, however, the High Court of Australia confirmed the common law presumption that knowledge (referred to in the law as mens rea) is an essential ingredient of every offence, unless expressly, or by necessary implication, the mental element is displaced by the words or subject matter of the statute creating the offence. As Brennan J pointed out, however: ‘The purpose of the statute is the surest guide of the legislature’s intention as to the mental state to be implied’. 20.37 This means that statutory offences may now be classified generally as:

Those in which mens rea applies in full. This means that proof of intention is necessary before a person can be convicted of the crime.139 Those that create ‘strict liability, which means that the prosecution does not have to establish the defendant’s state of mind in order to prove the crime. Proof that the act (referred to in law as the actus reus) constituting the criminal offence was committed by the defendant will be enough to warrant conviction. The defendant may, however, in defence, plead ‘honest and reasonable mistake of fact’ — that [page 860] is, that the defendant was not aware of the facts that led to the commission of the offence — and if this defence is supported by some prima facie evidence, the prosecution will have to rebut this defence beyond reasonable doubt. Those that create ‘absolute liability’, for which there is no defence that can be pleaded. The absence of the defence of honest and reasonable mistake, therefore, marks the difference between offences of strict and absolute liability. 20.38 The presumption that mens rea is an essential ingredient of every offence must, of course, give way to any statutory displacement of this presumption. One important way in which the common law presumption has been displaced is by the adoption of Criminal Codes by the Commonwealth and in Queensland,140 Western Australia and Tasmania. This means that if a particular environmental statute does not specify a mental element to an offence, the relevant mental element must be determined from the Code, not from the application of the common law presumption.141 20.39 The tendency is for environmental legislation to specify whether a mental element is required to commit an offence.142 However, in the absence of any express indication to the contrary, the courts have generally presumed that the nature of environmental crime, as a crime against society as a whole, warrants imposition of principles of strict liability. As Lord Bingham CJ put it in the British case of R v Milford Haven Port Authority [2000] All ER (D) 352: Parliament creates an offence of strict liability because it regards the doing or not doing of a particular thing as itself so undesirable as to merit the imposition of criminal punishment on anyone who does or does not do that thing irrespective of that party’s knowledge, state of mind, belief or intention.

This has most notably occurred in cases involving pollution,143 because these have tended to be the category most prosecuted. The principle that

environmental crime is strict liability crime has, however, also been applied, for example, to cases involving breach of the conditions of development consent144 and environment protection licences;145 unlawful disposal of waste on land;146 land degradation;147 [page 861] unlawful clearance of native vegetation;148 interfering with wildlife;149 and harming or desecrating Aboriginal objects.150 This serves to underline the intention of the legislature that environmental crime should not be tolerated and effectively empowers the regulatory agencies to enforce environmental laws without having to undertake the often onerous task of proving the state of mind of the accused. In other words, imposing strict liability assists in the enforcement of the statute, reflecting and serving the public interest nature of the legislation.151 20.40 Maximum penalties for strict liability crime are generally lower than for crimes committed with intent. This reflects the fact that intention is not required for crimes of strict liability, and that crimes committed with intent should be treated more seriously and punished accordingly. Comparison of penalties in legislation may convince a court that an offence is indeed one of strict liability, or even of absolute liability. In Australia, it has rarely been interpreted that environmental offences are of absolute liability. One such case was in Victoria, where the court held in Allen v United Carpet Mills Pty Ltd [1989] VR 323, that the offence created by the Environment Protection Act 1970 (Vic) s 39(1) (‘a person shall not pollute any waters’) was one of absolute liability and that the defence of honest and reasonable mistake of fact, therefore, did not apply. The different approach adopted in Victoria seemed to depend on the phraseology of the legislation compared with New South Wales, where comparable offences have been uniformly interpreted as strict liability offences.152 It could also have depended on the potential severity of the penalties to be imposed. Where maximum penalties are relatively low, then it may be easier to interpret an offence as one imposing absolute, rather than strict, liability. 20.41 It may also be easier to interpret a statute as imposing absolute liability where the statute itself very carefully outlines its own defences to the offence. This may suggest an intention to displace the defence of honest and reasonable mistake. This most commonly occurs in legislation dealing with marine pollution from ships and other vessels, the provisions of which reflect international agreements to combat oil and other forms of pollution of the

marine environment. In this legislation, the circumstances in which a defence, or ‘excuse’, may be pleaded are set out in detail.153 On the other hand, at least in relation to an offence in New South Wales by a master and an owner of a vessel of causing a discharge of oil into state waters under the Marine Pollution Act 1987 (NSW) s 8, it has been held that this offence is one of [page 862] strict liability.154 By contrast, a similar offence contained in the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) s 9 has been interpreted as one of absolute liability.155 20.42 Apart from specifying which offences require a mental element to be proved, some statutes clearly specify that offences created by the legislation are offences of strict liability. One way to do this is to specify that, subject to any express provision to the contrary, it is not necessary for the prosecution to prove intention or any other state of mind in order to establish an offence against the legislation.156 Another way is to specify particular offences that are strict liability offences. In the EPBCA, for example, killing, injuring or taking a listed threatened species,157 listed migratory species,158 cetacean159 or listed marine species,160 are clearly marked as offences of strict liability. 20.43 Otherwise, the courts will generally interpret offences as strict liability by the absence of any requirement for a mental element to support the offence. For example, the Protection of the Environment Operations Act 1997 (NSW) s 120(1) baldly states that ‘a person must not pollute any waters’. Section 120(2) adds that ‘a person must not cause any waters to be polluted’, while s 120(3) says ‘a person must not permit any waters to be polluted’. This last provision introduces a state of mind, that is, ‘permit’,161 but the other two provisions are strict liability offences.162 This interpretation is supported not only by the absence of any mental element specified for these offences, but also by the presence of a mental element specified in other offences under the legislation, such as s 120(3) itself and the offences of wilfully or negligently disposing of waste or emitting pollution.163 For prosecutors, it follows that the strict liability offence is easier to prosecute, as it is not necessary to prove intent. This does not mean, however, that a prosecutor who wishes to prosecute for an offence will simply lay charges against the party that [page 863] committed the offence. Where an employee or contractor is acting on behalf

of an employer or corporation, then the circumstances may indicate that the offence was committed because of fault on the part of the employer or corporation, in which case the latter may be charged on principles of vicarious liability (see 20.51).164 Where a serious crime has been intentionally committed, however, then the regulator will generally opt for the higher range offence and be prepared to do whatever work is necessary to prove the wilful or negligent conduct of the accused in order to achieve higher penalties. Such action by the regulator will also act as a warning and deterrent to others.

Offences involving mens rea 20.44 A mental element (sometimes referred to as a ‘fault element’)165 that is an essential ingredient of committing an environmental offence may be specified as knowledge, intention, wilfulness, recklessness or negligence. Where a state of mind is specified, the prosecution must prove beyond reasonable doubt that the accused had the requisite state of mind at the time the offence was committed;166 or, in the case of negligence, what a reasonable person in the position of the accused would have foreseen, known or done in the circumstances and that the response of the accused fell short of this objective standard. The Commonwealth Criminal Code Act 1995 Div 5 contains a useful interpretation of these different states of mind: 5.2 Intention (1) A person has intention with respect to conduct if he or she means to engage in that conduct. (2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist. (3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events. 5.3 Knowledge A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

[page 864] 5.4 Recklessness (1) A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2) A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element. 5.5 Negligence A person is negligent with respect to a physical element of an offence if his or her conduct involves: (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and (b) such a high risk that the physical element exists or will exist; that the conduct merits criminal punishment for the offence.

Wilful intent 20.45 Intention may be established by direct evidence of actual intent or by constructive intent; that is, an inference from the doing of the unlawful act and the circumstances that the accused knew that all the facts that constituted the ingredients of the offence were involved in what the accused was doing.167 The Environmental Protection Act 1994 (Qld) Sch 3 Dictionary, for example, describes wilfully as meaning intentionally, recklessly or with gross negligence. The term ‘wilful’, however, does mean that the prosecution must establish that the accused performed the unlawful act with knowledge or awareness of the risk of injury,168 although this does not necessarily equate to actual knowledge. Intent can be inferred from ‘wilful blindness’; that is, where the accused deliberately refrains from making inquiries in case the truth may be revealed.169 For example, the Protection of the Environment Operations Act 1997 (NSW) ss 115–117 specify a number of offences of ‘wilfully or negligently’ causing environmental harm. To be found guilty of these offences, the defendant must have committed the actus reus with an intention to harm the environment, or with an awareness that harm could result.170 If actual knowledge were required as a standard for conviction, this would mean that a person [page 865] who deliberately refrained from making inquiries about the possibility of harm, preferring not to gain knowledge or to avoid the truth, could escape conviction. For this reason, it has been held that ‘wilful blindness’, in other

words, a reckless disregard for the facts, may be treated by the courts as equivalent to actual knowledge for this purpose.171

Recklessness 20.46 Recklessness denotes that the accused acted in the knowledge that a particular consequence was probable or possible from his or her conduct. Unlike intention, where the actus reus is the purpose of the accused’s conduct, in recklessness the accused need not have the actus reus as the purpose of the conduct. Recklessness may incorporate ‘wilful blindness’; that is, the accused realises or suspects that certain consequences might occur, or that there is a risk they will occur, but refrains from making further inquiry. In the law, intention and recklessness are equated for purposes of criminal liability; a person who is reckless is just as blameworthy as a person who intends to bring about the result.172 Where knowledge is a key ingredient of an offence, however, then recklessness will not suffice unless knowledge can be inferred from the circumstances: see 20.49.

Negligence 20.47 At common law, mere negligence is not normally enough to satisfy the mental element. But in keeping with the parliamentary desire to indicate that environmental offences are to be regarded as serious crime, negligence is often enough to convict an offender for a statutory offence. Negligence is assessed by an objective test based on what a hypothetical reasonable person would have foreseen, known or done in the circumstances; the accused’s subjective state of mind is not relevant for this test.173 If a risk of committing an offence was foreseeable to a reasonable person in the position of the accused it matters not that the accused did not foresee it. For example, the Protection of the Environment Operations Act 1997 (NSW) s 115 states that if a person wilfully or negligently disposes of waste in a manner that harms or is likely to harm the environment, then an offence will have been committed. This provision has been interpreted to mean that the state of mind of negligence must be proved in relation to foresight of the consequences — that is, harm to the environment — not the conduct itself.174 And ‘What must be considered is whether the risk of such harm was foreseeable to the reasonable person [page 866] in the position of the defendant, not whether the defendant subjectively foresaw the risk himself’.175

Whether the defendant’s standard of care departs from what might reasonably be expected is, of course, to be considered in the light of all the circumstances of the case.176 Such departure needs to be assessed from an interpretation of the objectives of the statute that lays out the criminal offences with which the accused is charged, and a conclusion that failure to take relevant precautions therefore warrants criminal punishment.177 20.48 Where negligence is an adequate standard for conviction, then the courts have to interpret what standard of negligence will suffice. Negligence, in the criminal law, generally means ‘gross’ negligence. It could be argued, therefore, that because environmental crime is a criminal offence, the criminal standard of negligence should be applied.178 Adoption of such a standard would mean, however, placing a significant burden of proof on the prosecutor and this may not have been the intent of parliament in creating the offence. By contrast, a civil standard of negligence would create a higher level of duty on the accused, and less of a burden on the prosecutor. It has been held, therefore, that the proper way to approach this question is to interpret the statute to ascertain what negligence means in the context of the offences that are created.179 If, having regard to the intent and purpose of the legislation, the accused has done something he or she should not have done, and that should attract, or would merit, a criminal sanction, then the evidence would suggest the offence has been committed. In Environment Protection Authority v Ampol Ltd (1994) 82 LGERA 247, armed with this advice from the New South Wales Court of Appeal, Pearlman J held that the Protection of the Environment Operations Act 1997 (NSW) imposed a general obligation on the defendant to avoid or minimise environmental harm, and, therefore, that a standard of care higher than that required by the concept of gross negligence would apply to the offences outlined above.

Knowledge 20.49 In addition to wilful or negligent conduct, many environmental statutes also make it an offence to ‘permit’, ‘knowingly permit’, ‘suffer or permit’180 or ‘allow’181 an [page 867] offence to occur. For example, under the Protection of the Environment Operations Act 1997 (NSW) s 120, ‘a person must not permit any waters to be polluted’. It would seem that there is no difference in effect between the words ‘suffer’, ‘permit’, ‘knowingly permit’ or ‘allow’. The word ‘permit’ has been

said to mean to knowingly or intentionally allow.182 To permit something requires awareness of it and a failure to exercise a right or power to prevent it.183 It implies a measure of control over the unlawful act, and the conferment of a discretion to do or use something in the manner in which it was in fact done or used, or to give leave for an act to be done which the person permitting has power to prevent.184 In Hardt v Environment Protection Authority (2007) 156 LGERA 337, the appellant had been convicted in the Land and Environment Court of permitting land to be used as a waste facility without the necessary authorisations, contrary to the Protection of the Environment Operations Act 1997 (NSW) s 144(1). The appellant had intentionally allowed waste to be brought onto and disposed of on the land. The appellant argued that ‘permits’ required not only that the defendant allowed the physical actions of allowing waste to be brought onto the land but also that the defendant intended that the carrying out of the physical actions on the land be for the purpose of a waste facility. The prosecutor submitted that ‘permits’ did not require proof that the defendant intended to use the land for the purpose of a waste facility and that it was sufficient to establish that the defendant allowed the physical actions which constituted a waste facility. The New South Wales Court of Appeal held that the defendant’s purpose in allowing waste to be stored on the land was irrelevant, and that his awareness that waste was being stored on site carried with it an awareness that the premises would be used as a waste facility. It was not necessary that the defendant was aware of the legal definitions of the constituent elements of the offence or intended to allow the land to be used for the purpose of a waste facility.185 It matters not, therefore, whether the legislation says ‘permit’ or ‘knowingly permit’; a person cannot permit a state of affairs without having knowledge of it.186 Further, as Darling J thought in Rochford RDC v Port of London Authority [1914] 2 KB 916, that, ‘if a man knowingly permits a thing to happen, he certainly suffers it to happen’, then the converse is probably true, and it seems likely that in context both words bear the same meaning. Sometimes, both ‘suffer’ and ‘permit’, or ‘allow’ and ‘permit’, are used in the same piece of legislation. [page 868] 20.50 ‘Knowingly’ connotes that the accused had a positive belief or knowledge that the relevant circumstances existed or that a particular consequence would result from the accused’s conduct. Hardt demonstrates

that a person who wilfully ‘shuts his eyes’ to the obvious cannot claim to have had no knowledge of the state of affairs; that is, wilful blindness may constitute knowledge.187 ‘Knowingly’, however, is a word that connotes more than just reckless indifference. In Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 103 LGERA 355, the appellant was found not guilty of ‘knowingly’ causing or permitting damage to an Aboriginal relic. It had not been proved beyond reasonable doubt that the accused knew the object was an Aboriginal relic, and reckless indifference to the probability that his conduct would cause damage to such relics was not enough. Similarly, in Country Energy v Williams (2005) 141 LGERA 426, the court held that the destruction of unidentified Aboriginal objects of which a person was not aware could not be done ‘knowingly’.188 So too the words ‘permit’ or ‘suffer’ require more than just mere involvement. To permit something to happen a person must have the capacity to prevent it.189 Where a person has power to prevent an act occurring but takes no reasonable steps to prevent it then it can be said that the person has permitted or suffered the activity.190 But a person who has no power of control over the state of affairs cannot be said to have permitted it merely by remaining quiescent; for example, by granting a sublease for lawful purposes to a party who ultimately used the premises for unlawful purposes.191

Vicarious liability 20.51 ‘Vicarious liability’ is the term applied to a situation where one person is held legally liable for the actions or intent of another. Although the accused did not commit the crime personally, the conduct and state of mind of that other person is taken to be the conduct and state of mind of the accused.192 Environmental legislation commonly imposes vicarious liability on corporations and directors and managers of corporations; but principles of vicarious liability may also extend to employers that are not corporations, to landowners and occupiers, and to owners of material such as waste and other substances.193 Indeed, a form of vicarious liability for contaminated land applies to landowners for the previous actions of others even though the liable entity had committed no crime at all.194 [page 869] The concept of vicarious liability is commonly applied in civil law, but because criminal offences depend on concepts of fault, vicarious liability will

only be imposed where interpretation of the intent and purpose of the statute in question supports the application of the doctrine. Environmental offences have been determined to be a type of offence where application of the doctrine is warranted.195 In Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715, for example, the New South Wales Court of Criminal Appeal held that an employer could be vicariously liable for the acts of employees under the Clean Waters Act 1970 (NSW).196 The imposition of vicarious liability was supported by the purposes of the statute and the definition of ‘pollute’ in s 5.197 However, as in the civil law of tort, the employer would only be liable for the acts of employees committed in the course of their employment.198 20.52 On the other hand, an employer would not generally be liable for acts of independent contractors or subcontractors,199 unless the employer had either failed to take care in choosing a competent contractor,200 or had directly authorised the act, or the unlawful act was the necessary consequence of the direct authorisation;201 or where the work done by the independent contractor is subject to the control and direction of the accused in the actual execution of the work,202 or the employer had engaged the contractor to perform what the law regarded as a non-delegable duty; [page 870] that is, an act, generally of a potentially serious or risky nature,203 for which the employer should remain legally responsible.204 In these cases, where legislation does not specifically impose liability on corporations or other employers for the actions of employees and agents, then the proper approach to determining vicarious criminal liability is the same as in the civil law of tort; that is, that the relevant test should be one of ‘sufficient control’.205 This means that if an employer purports to exercise detailed control over the manner in which work is performed, then the employer is likely to be found liable for the acts of the employee or contractor.206 For example, in Environment Protection Authority v Taylor Woodrow (Aust) Pty Ltd (1997) 101 LGERA 226, the defendant was involved in the design and supervision of works undertaken by the contractor. The defendant was aware of the failure of the contractor to comply with instructions given by the employer, and was held liable for the acts of the contractor. In Gatacre v Soil Conservation Service (NSW) (1992) 78 LGERA 379, where the offence was one of causing trees to be felled in breach of the Soil Conservation Act 1938

(NSW) s 21C, a land manager had employed a contractor to undertake the felling, but participated in deciding what trees should be felled. The court held the manager was liable for the offence committed by the contractor. This principle also applies to employees of independent contractors, over which an employer of the contractor exerts sufficient control.207 20.53 Where the requisite degree of control is not apparent, however, then, in the absence of any statutory instruction to the contrary, the employer will not be liable. In Environment Protection Authority v Snowy Mountains Engineering Corp Ltd (1994) 83 LGERA 51, the contractor was not supervised, he worked to his own hours, and was not paid a wage by the company. Talbot J held, in these circumstances, that the corporation was not liable for the offence committed by the contractor. Similarly, in Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1, Lloyd J was not satisfied that the defendant was supervising the works being carried out by, or instructing, the subcontractor or sub-subcontractor, or had any real control over the manner in which the works were performed. The defendant could not be held vicariously liable for an oil spill that occurred during construction.208 [page 871] Where subcontractors are involved, then clearly the crucial factor determining the vicarious liability of the principal is a sufficient degree of control; that is, not merely directing that tasks should be carried out, but directing the way in which the tasks are to be carried out.209 20.54 Environmental protection legislation often introduces a clearer, statutory imputation of vicarious criminal liability. In the Australian Capital Territory, Queensland, South Australia and Tasmania, for example, the main pollution control and some other environmental legislation makes provision for natural persons to be held vicariously liable for the conduct and intention of that person’s servants and agents by imputing their conduct and intention to that person in certain circumstances.210 An employer or other liable entity who is a natural person may, however, be shielded from a jail term for the offence if that person is only liable for the offence by reason of the vicarious nature of the liability.211 In New South Wales, principles of vicarious liability are extended to occupiers of land for emissions of pollution caused by employees, agents, licensees, contractors and subcontractors of the occupier.212 For emissions from ships, it is usual that both the master and the owner will be liable.213 For example, in Filipowski v Fratelli D’Amato (2000) 108 LGERA

88, the failure of the chief officer of a vessel to properly perform his functions, with the result that oil escaped into Sydney Harbour, was held to be attributable to the owner as the ultimate employer.

Corporate environmental crime 20.55 A corporation,214 as a legal person, is subject to the same offences as a natural person, although maximum fines are potentially much higher, commonly up to four times those that would apply to a natural person. A corporation can only act and form an intent through its directors, employees and agents. The corporation may be directly liable for the acts and intent of the ‘directing mind and will’ of the corporation — that is, those persons who are the embodiment of the corporation, its directors — or it can be vicariously liable for employees and agents, and, in some circumstances, independent contractors, as discussed above.215 This vicarious [page 872] liability can even extend to the state of mind of employees and agents as well as directors and managers.216 The general principles of corporate criminal liability stemming from the House of Lords decision in Tesco Supermarkets Ltd v Nattrass [1972] AC 153, stipulated that a corporation would only be liable for the negligence or wilful default of its top-level management. That is, if the board of directors, managing director and persons to whom the board had delegated its functions had exhibited the required degree of fault. The corporation would not be criminally liable for the failure of lower levels of management. 20.56 The Tesco principle would obviously be a significant impediment to the successful enforcement of corporate liability for environmental offences. Levels of the workforce below managerial level are even more likely to commit environmental offences than managerial levels — particularly offences involving emissions of pollution and clearing native vegetation — because it is usually employees and contractors who are engaged to do the acts that result in offences being committed. The Tesco principle has been replaced in most statutory schemes for environmental management with a concept of vicarious criminal liability that stretches not only to corporate officers, but also to corporate employees and agents.217 In determining whether criminal liability should be attributed to a company for the conduct of a person, a distinction has been drawn between a

person who is the embodiment of the company because he or she is the ‘directing mind and will’, and an employee or agent for whom the company is vicariously liable. The act of a high-level employee or director may count as the act of the company because they represent the company’s directing mind and will. But even the act of a low-level employee may count if that is required by the terms of the offence and the achievement of the policy objectives of the statute. Therefore, where appropriate, the courts will attribute to a company, the actions of employees, of whatever level, whose work involves the performance of a regulatory obligation on behalf of the company.218 20.57 Some provisions extend the vicarious liability of the corporation both to the conduct and the state of mind of the officers, employees and agents of a corporation;219 others only to the mental element constituting the offence.220 In Director-General, Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232, the court held that a director’s conduct in employing a contractor to clear land in breach of native vegetation clearance controls [page 873] was attributable to the corporation by reference to one or more of three alternative rules of attribution: (1) The director was the ‘mind and will’ of the company in respect of the clearance. (2) The company was vicariously liable for the conduct of the director because clearing was within his implied or apparent authority. (3) The director’s conduct was covered by the special rule of attribution; namely, he was one of two directors of a company that owned the land on which the offence occurred, and the conduct of such a director in carrying out or authorising the carrying out of clearing in contravention of that section is attributable to the company, at least where such conduct is in furtherance of the company’s interests or not against them. 20.58 Where statutory imputations of vicarious liability for the state of mind of employees and agents are applied, the legislation may specify in some detail the requisite elements of the imputation. The Criminal Code (Cth), for example, makes a corporation liable for both the acts (within the course of employment) and the state of mind of corporate officers, employees and agents. In respect of the mental element, the corporation is only liable if it

‘expressly, tacitly or impliedly authorised or permitted the commission of the offence’.221 The means by which such an authorisation or permission may be established are stated to include: proving that the body corporate’s board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision; or proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.222 The liability of a corporation for negligence, however, will not necessarily depend on the negligence of any particular person. The negligence of the corporation may be evidenced by the conduct of the corporation as a whole. An example would be where the prohibited conduct was substantially attributable to inadequate corporate management or supervision of its employees, agents or officers, or a failure to provide adequate systems of communication between different levels of the organisation.223 [page 874]

Vicarious liability of directors and managers for offences committed by the corporation 20.59 It is usual for environmental statutes to provide that where a corporation has committed an offence under the legislation, then directors224 or other managers225 of the corporation are to be deemed guilty of the same offence.226 This means that a corporate director can be individually liable for the offences committed by the corporation. Since the corporation, as we have seen, may become liable because of the actions or state of mind of employees and agents, this effectively exposes corporate officers personally to the offences committed by their workforce.227 Environmental law does not allow corporate officers to hide behind the legal structure of the corporation.

Directors and managers are deemed in effect to be the corporation, and will be responsible for whatever offences are attributed to the corporation. The effect of these provisions is not only to reverse the normal burden of proof that would apply if company officers were to be prosecuted as individuals — that is, that the prosecution should prove its case rather than the accused be required to disprove liability — but it also, as with employer liability, extends criminal liability to persons who do not actually commit environmental offences but who nevertheless are deemed to be responsible for them. The prosecution, of course, first has to prove that the corporation committed an offence. However, this does not mean that it has to be proceeded against or convicted before this vicarious liability can be pursued.228 20.60 On the other hand, the attitude of the regulator is invariably not to launch criminal prosecution simply against anyone who can be deemed legally responsible. [page 875] Generally speaking, faced with a number of potential offenders ranging from the employees and agents of a corporation, through to directors, managers and the corporation itself, the regulator will look for who was truly at fault or responsible for the crime. Prosecution Guidelines released by the Environment Protection Authority of New South Wales229 suggest, for example, that in taking a decision to prosecute, the crucial element is the defendant’s actual control over the corporation in relation to its criminal conduct. More often than not, the corporation will be regarded as most culpable because of its failure to supervise and control those who actually committed the offence. At the same time, any hint of personal responsibility, particularly an act committed outside the normal course of employment, by a manager or an employee or contractor, could lead to prosecution of the individual rather than, or in addition to, the corporation.230 For example, under the Environmental Protection Act 1986 (WA) s 118, a director or other officer concerned in the management of a corporation is guilty of the same offence as the corporation, where the offence is proved to have occurred with that person’s consent, connivance or neglect. In Environment Protection Authority v McMurty,231 a company director instructed an employee to empty tanks containing toxic chemicals into a nearby creek, with devastating effect on ecological communities of plants, fish and invertebrates immediately

downstream. The defendant was convicted of consenting to ‘causing’ pollution, and sentenced to three months’ imprisonment. 20.61 In Queensland, a company director may be liable for a term of imprisonment for failing to ensure that the company complies with various provisions of the Environmental Protection Act 1994 (Qld).232 In R v Moore [2001] QCA 431, a sentence of 18 months’ imprisonment on a company director who had failed to ensure that his company had complied with the Act in terms of disposal of toxic substances was, in the circumstances, held on appeal to have been properly imposed. In Environment Protection Authority v Fernando (2003) 129 LGERA 416, a corporate manager transported waste to an unlicensed facility. Both the manager and the corporation were successfully prosecuted; though the fact that the manager had been engaged largely on a frolic of his own was taken into account by the court in sentencing the corporation, which was fined only $5000. By comparison, the manager received a fine of $60,000. 20.62 Equally, where the offender is a director of the corporation, then the offender could be prosecuted in the dual capacity of director and as an individual. In Director-General of the Department of Land and Water Conservation v Greentree (2003) 131 LGERA 234, for example, the defendant was prosecuted for unlawful clearance of native vegetation both as an individual and in his capacity as director of the corporation that he supervised.233 [page 876] Where a company is effectively the ‘alter ego’ of the directors, so that the corporate structure has a nominal role to play in the activities that led to the offence, then the court is apt to treat the responsibility as that of the directors personally. For example, in Environment Protection Authority v Australian Pacific Oil Company Pty Ltd [2003] NSWLEC 279, whereas the company was fined $20 for offences relating to unlawful transportation of waste, the directors were fined $40,000 each and ordered to pay costs totalling some $55,000, as well as publish a notice about the offence. Where a corporation has a sole director who is essentially the ‘alter ego’ of the corporation then the appropriate sentence may be to impose equal fines on both the corporation and its director. In Mouawad v The Hills Shire Council [2013] NSWLEC 165, two corporations and the sole directors of each, who were husband and wife, were fined equal amounts of $9000 and $15,000 for each plus, costs in excess of $50,000 after being found guilty of unlawful transportation of waste.

Liability as an accessory 20.63 A person who assists or encourages, or aids or abets, another person to commit an offence may also be guilty of the same offence. So may a person who caused or contributed to the conditions that gave rise to the commission of an offence. For example, the Protection of the Environment Operations Act 1997 (NSW) (PEOA) s 116(2) states that owners or occupiers of land and owners of substances who wilfully or negligently, in a material respect, caused or contributed to the conditions that gave rise to the commission of the offence are also guilty of an offence. In Environment Protection Authority v Warringah Golf Club [2003] NSWLEC 140 at [92], the defendant was found liable under this provision for a fish kill that resulted from an offence committed by a greenkeeper, ‘because it failed to implement fundamental safeguards and procedures to protect the environment from harm in the event of an accident or the careless or negligent performance of duties by the defendant’s employees’. 20.64 Section 168 of the Act also provides: A person who: (a) aids, abets, counsels or procures another person to commit, or (b) attempts to commit, or (c) conspires to commit, an offence under another provision of this Act or the regulations is guilty of an offence against that other provision and is liable, on conviction, to the same penalty applicable to an offence against that other provision.

In the High Court in Giorganni v R [1985] HCA 29 at [17], Gibbs CJ said: No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness, in the sense that I have described, is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient.

[page 877] In Director-General of the Department of Land and Water Conservation v Greentree [2002] NSWLEC 102 at [107], Lloyd J thought that some positive act on the part of the defendant to bring about the offence was not necessarily required for a conviction of a person who ‘aids, abets, counsels or procures’; though later in Environment Protection Authority v Pannowitz [2006] NSWLEC 219, in finding a person guilty of aiding and abetting another person to commit a contempt of court, Lloyd J said, ‘To aid, abet counsel or procure the commission of an offence by another involves a deliberate act’; although wilful blindness might be enough.

Double jeopardy 20.65 The basic principle of ‘double jeopardy’ is that a person cannot be convicted twice of the same offence. Clearly, where an offender is, for example, liable for environmental crime both as an individual and as a corporate manager there is the potential for that individual to be charged twice in respect of the commission of an offence relating to the same set of facts. However, being charged twice in relation to the same facts does not automatically raise a question of double jeopardy. An individual may be charged twice for different offences, even if they arise out of the same set of facts. For example, unlawful clearing of native vegetation may raise offences under native vegetation and threatened species legislation as well as involve breaches of a local government tree preservation order.234 Only if the charges contain common elements would the question of double jeopardy arise. Legislation may also commonly create a number of separate offences in one section — for example, using, permitting and causing land to be used as a waste facility without authorisation235 — in which case a prosecutor could charge each one separately against the defendant.236 There is no breach of the double jeopardy rule if one offence requires proof of a fact that the other does not. For example, in Rosser v New South Wales Department of Primary Industries (2008) 157 LGERA 418, the appellant was charged, both as an individual and as a director of a corporation, of harming marine vegetation contrary to the Fisheries Management Act 1994 (NSW) s 205. Section 279 of the Act deemed the corporate officer to have committed the same offence as the corporation; that is, the offence under s 205. Since the elements of the charge under s 279 (corporate liability) were not identical to the charge under s 205 (individual liability), then no question of double jeopardy arose. Clearly, however, where charges such as these involve common elements then it would be wrong to punish the offender twice for commission of the elements that are common. In Rosser, although the appellant was convicted on both charges, a fine was imposed in respect of only one charge, in recognition of the common elements involved in both offences. And where a corporation is charged with an offence, and by virtue that a sole director would be vicariously liable for the same offence, a court must be careful not to effectively penalise the individual twice.237 [page 878]

Privileges against self-incrimination and exposure

to penalties 20.66 The privilege against self-incrimination is designed to protect individuals from oppressive methods of obtaining evidence to support a criminal prosecution.238 In Environment Protection Authority v Caltex Refining Co Ltd (1993) 82 LGERA 51, officers of the New South Wales EPA had used their statutory powers under the Clean Waters Act 1970 (NSW) to require Caltex to produce certain documents that were records used in its selfmonitoring program. These records might have established the commission of an offence of polluting waters contrary to the Act. Caltex claimed privilege for its documents. Since regulatory monitoring programs depend heavily on self-monitoring, then the extension of this privilege to corporations would greatly restrict the ability of regulators to gather evidence and enforce the law. By a majority of 4:3, the High Court ultimately agreed with the conclusion of Stein J in SPCC v Caltex Refining Co Pty Ltd (1991) 72 LGRA 212 (LEC). It rejected the decision of the Court of Criminal Appeal239 that a corporation was entitled to this privilege.240 Since proof of corporate crime usually depends on documents in the defendant’s possession, to allow such a privilege would unfairly advantage corporations at the expense of the legislative intent to control corporate conduct. The denial of a right to corporations to resist production of information on the basis of self-incrimination, set out in Caltex, has been extended to another common law right, the privilege against exposure to penalties. In Graymarshall Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2010] NSWLEC 54, which concerned an order under the Native Vegetation Act 2003 (NSW) s 36 to produce information, the court held that a corporation could not resist such an order on the basis of such a right. The general rule of statutory construction that a provision will be presumed not to abrogate common law rights in the absence of clear legislative intent was, said the judge, now considered to be of ‘minimal weight’, at least where the objective purpose and intent of the legislation justified such a departure. 20.67 Whether directors and managers retain a personal right to the privilege against self-incrimination when ordered to produce documents on behalf of the corporation that might incriminate them personally, is still unclear. It is certainly arguable that as a result of the corporation being compelled to produce documents, corporate officers could also be exposed to criminal sanctions.241 The High Court’s decision in Caltex clearly had implications for the conduct of voluntary environmental audits, that is,

[page 879] audits of corporate performance judged against their legal responsibilities, which, of course, regulators would be keen to encourage. If a company voluntarily undertook an audit that revealed deficiencies in environmental management that might be used to support a prosecution, and those audit documents were likely to be seized by the prosecuting authority, this could clearly discourage corporations from undertaking such audits. Since beneficial environmental outcomes are the first priority, regulators have, since Caltex, had to consider how best to balance the twin concerns of corporate confidentiality and legal responsibility. 20.68 Companies may turn to legal professional privilege to protect confidentiality in audit documents. This privilege attaches to communications made in confidence between a client and a legal adviser for the sole purpose of obtaining legal advice or for use in litigation, existing or anticipated.242 The document must have come into existence for the purpose of obtaining legal advice. Privilege cannot be claimed for documents that were merely given to the lawyer in order to provide advice if they did not come into existence for that purpose. Only communications in documents may be privileged, however, not the facts contained therein. Privilege may also be excluded by statute or waived by a company in order to defend legal proceedings. 20.69 To regulators, however, the combined effect of the decision in Caltex, and the prospect of more reliance on legal professional privilege, threatened policy initiatives that were increasingly coming to focus on market-based instruments and industry self-regulation to manage environmental outcomes. Most states, therefore, have enacted legislative provisions that protect voluntary (but not mandatory) audits from being available to support a criminal prosecution.243 The audit report will not be admissible in evidence in any proceedings brought to enforce the legislation and may not be seized or obtained for any purpose connected with the administration or enforcement of the legislation. However, it may be available to the prosecution once the corporation seeks to rely on the audit to support its own defence.244 In practice, this does not mean that the regulator cannot, therefore, prosecute. It simply means that the audit documents cannot be used to support the prosecution and evidence will have to be obtained in some other way.

Defences

20.70 Defences are available both for offences that involve mens rea and for strict liability offences. For offences involving mens rea, the defences of ‘due diligence’ or ‘reasonable conduct’ are common. For strict liability defences, the main defence, apart from being authorised to conduct the offending activity, is the common law defence [page 880] of honest and reasonable mistake of fact, although statutory defences akin to those available for offences involving mens rea may also apply, particularly where liability is based on principles of vicarious liability.245

Due diligence 20.71 It will often be a defence to a charge of intentionally committing an environmental offence that the commission of the offence was due to causes over which the person had no control, and that the person took reasonable precautions and exercised due diligence to prevent the commission of the offence.246 This defence of ‘due diligence’, howsoever described,247 is a statutory defence that is not available at common law, either on its own account, or as an extension of the defence of honest and reasonable mistake.248 Due diligence involves an absence of negligence or fault whereas an honest and reasonable mistake involves absence of a guilty mind.249 The notion of no control and due diligence involves taking sufficient precautions to avoid environmental harm such that a court could conclude that the defendant was not at fault. Both elements of the defence must be satisfied.250 The concept is well understood in areas such as corporations251 and trade practices law,252 but there is still considerable uncertainty over what may be involved in environmental due diligence.253 The defence has been said, for example, to provide a curious defence of uncertain scope to offences involving the wilful or negligent disposal or escape of polluting substances or waste.254 [page 881] As Cripps CJ remarked in State Pollution Control Commission v NSW Sugar Milling Co-op Ltd (1991) 73 LGRA 86, it is not easy to envisage circumstances where an intentional or negligent disposal was due to causes over which the defendant had no control. It might apply, for example, where the defendant was the owner of a container or a polluting substance but had nothing to do with its escape; for example, because control had been delegated to an

independent contractor255 or an employee had embarked on a ‘frolic of his own’ outside the terms and conditions of his employment.256 The further ‘control’ is sub-delegated then the more remote is likely to be the possibility that the original primary landowner or operator actually had legal control.257 However, in these circumstances it is difficult to see that if the defendant had no control how he or she could have been wilful or negligent. Still, the availability of the defence assumes that the offence has been committed. However, as the defence refers to ‘causes’ over which the defendant has no control, not ‘acts’, it could apply in circumstances where the defendant was aware that an event, such as flash flooding, could occur, and that if it did, environmental harm was possible. At the same time, the defendant had no warning it was likely to occur, had no control over it, and it was impracticable to have made provision for it.258 20.72 The defence that the employer had no control over the actions that led to the offence could also apply where the offence is committed by the actions of employees that are conducted outside their normal range of authorisation or responsibility; that is, not within their normal course of employment. Again, this will be difficult to make out,259 but it was successful in State Pollution Control Commission v Blue Mountains Council (1991) 72 LGRA 345. In this case an employee of a contractor retained by council to operate management of a landfill site decided to breach the wall of a leachate dam and release the contents into a nearby stream. This was described by the court as ‘a venture of his own making and volition’,260 which council could not have been aware of or exercised any control over. [page 882] In practice, however, like the defence of honest and reasonable mistake, the defence of due diligence is very difficult to make out. In State Pollution Control Commission v Kelly R V (1991) 5 ACSR 607, Hemmings J indicated that to successfully plead this defence, it will not be enough for the defendant to claim that he or she did his or her best in the circumstances, given his or her particular abilities and resources. Due diligence contemplates a mind concentrated on the likely risks so as to prevent the contravention that actually occurred; general precautions will not suffice. Nor will compliance with industry codes of practice261 or some other statutory process that is not regulated by the legislation creating the offence. For example, in Environment Protection Authority v Virotec International Ltd (2001) 122 LGERA 118, compliance with a mining rehabilitation and environmental management plan under the mining legislation did not excuse an offence of polluting

waters. In other words, a proactive environmental policy that concentrates on the specific environmental liabilities created by each piece of legislation is likely to be required.262 20.73 This conclusion is borne out by other statutory defences, such as that contained in the Environmental Management and Pollution Control Act 1994 (Tas) s 55.263 It stipulates that where the defendant is seeking to rely on the establishment of proper workplace systems and procedures to show that ‘all reasonable and practicable measures’ were taken to prevent the commission of an offence, then proof must be provided that those procedures were communicated at all levels in the workforce so that risks of contravention would be reported promptly. It must also be proved that the employer ‘actively and effectively promoted and enforced compliance’ with the Act and with systems and procedures within the workforce. Or, to put it another way, failure to exercise due diligence may be marked by: … the fact that the prohibited conduct was substantially attributable to: (a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or (b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.264

20.74 In the Australian Capital Territory, the Environment Protection Act 1997 (ACT) s 153(2) provides that in determining whether a defendant has exercised due diligence to prevent the act or omission alleged to constitute the offence or an element of the offence, the court may have regard to: (a) if the defendant is a corporation — the steps taken by it — (i)

to ensure that people employed or engaged by it were aware of the requirements of this Act and any relevant environmental laws and standards relating to the prevention or minimisation of environmental harm; or

(ii) to ensure compliance with those laws and standards by those people; or

[page 883] (iii) to establish an environmental management system and to ensure implementation and compliance with it; or (b) if the defendant was the director of a corporation or other person responsible for the management of the activity in relation to which the environmental harm happened — (i)

whether the defendant was personally familiar with the requirements of this Act and any relevant environmental laws and standards relating to the prevention or minimisation of environmental harm; or

(ii) whether the defendant had taken all reasonable steps to comply with those laws and

standards; or (iii) the steps taken by the defendant to ensure other people for whom it was relevant were familiar with this Act and any relevant laws and standards, and compliance with those laws and standards by those people; or (iv) the steps taken by the defendant to establish an environmental management system and to ensure familiarity and compliance with it by other people for whom it was relevant; or (v) whether the defendant reacted immediately and personally when the defendant became aware of any noncompliance with the environmental management system or other incident connected with the environmental harm that happened; or (c) if the defendant was an employee or other person whose responsibilities did not extend to the management of the activity in relation to which the environmental harm happened — (i)

whether the defendant had taken all reasonable steps to become familiar with this Act and any relevant environmental laws and standards relating to the prevention or minimisation of environmental harm; or

(ii) whether the defendant had taken all reasonable steps to comply with those laws and standards; or (iii) whether the defendant had taken all reasonable steps to become familiar, and comply, with any environmental management system established by the corporation to the extent that the system is relevant to his or her position; or (iv) the steps taken by the defendant to prevent or minimise environmental harm when the defendant became aware of any incident connected with the environmental harm that happened or the likelihood of any such incident.

20.75 Although not specifically considering the defence of due diligence in Environment Protection Authority v Broken Hill Pty Ltd,265 Talbot J indicated a number of considerations relevant to sentencing and mitigation of penalty that would also seem to give some guidance to the sorts of matters that might be taken into account. These include whether the company had maintained an environmental assurance program that encompassed planning, training, monitoring, review and improvement, whether the company had actively conducted environmental audits, and whether it was developing an environmental assurance standard. [page 884]

Honest and reasonable mistake of fact 20.76 The defence of honest and reasonable mistake of fact is available either as a common law defence or specifically under statute. Determining whether a ‘mistake’ is one of fact or law is, however, ‘notoriously difficult’.266 Where the defence applies, it means that the person who carried out the conduct that constituted the offence is exonerated if he or she was under a

mistaken but reasonable belief about facts that, had they existed, would have meant that the conduct would not have constituted an offence.267 The Criminal Code (Cth) includes a defence of honest and reasonable mistake,268 as well as others based on intervening conduct or events.269 In the three Code states, a defence of honest and reasonable mistake of fact,270 and a defence based on the fact that the acts constituting the offence occurred independently of the will of the accused or by accident,271 are also available. However, these defences may be displaced by the implied or express provisions of other legislation.272 The significance of excluding the Criminal Code defences may be to make the offences referred to, by implication, offences of absolute rather than strict liability, unless the statute in question provides other defences.273 As already indicated, however, the prevailing attitude in environmental legislation is to regard environmental offences that do not require evidence of a state of mind as offences of strict liability; and therefore make the defence of honest and reasonable mistake available. 20.77 The defence of honest and reasonable mistake of fact is only available to offences of strict liability, not offences that require intention or knowledge,274 and success in this defence will, of course, depend on the context in which the offence takes place and the factual circumstances surrounding the commission of the [page 885] offence. If the defendant can raise sufficient evidence, on the balance of probabilities, to indicate that the defence might apply, then it falls on the prosecution to disprove the defence beyond reasonable doubt. In other words, the accused must raise evidence of the claimed mistaken belief, but then the prosecution, to secure a finding of guilt, must establish beyond reasonable doubt that the accused did not honestly believe on reasonable grounds the existence of the facts that would make the conduct innocent.275 The mistake made by the accused must be both honest and reasonable: reasonableness is an objective matter.276 Even so, despite the burden falling on the prosecution to disprove a belief, reasonably raised, in practice it is very difficult for defendants to succeed with this defence.277 While the courts are not usually willing to conclude, directly, that a defendant’s belief was not honest, they are more than willing to label the belief as unreasonable. 20.78 In Cooper v ICI Australia Operations Pty Ltd (1987) 64 LGRA 58, for example, it was established that Caltex Oil had transferred a quantity of distillate by pipeline to premises operated by Esso. Connected to this pipeline

was a bypass line under the control of the defendant. The defendant had modified the line, but the modifications proved defective, allowing oil to spill into Botany Bay. The defendant pleaded an honest and reasonable mistake. The court held that although ICI’s belief in the condition, adequacy and efficiency of its pipeline might have been an honest belief, it certainly was not reasonable, and the defence of honest and reasonable mistake, therefore, could not apply. Similarly, in State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721, which involved an escape of diesel oil from a fracture in an underground pipe, the defence to a charge of water pollution was that the depot manager had a strong belief that the pipe was correctly installed and maintenance free, and that the system would work. The court held that this was not enough. Gleeson J indicated that in order to establish the defence of honest and reasonable mistake: the mistake must be one of fact not law; the mistake must be honest and reasonable; and there must be a positive belief the consequence will not ensue, and that belief must be sufficiently specific to relate it to the elements of the particular offence. [page 886] 20.79 In Environment Protection Authority v Unomedical Pty Ltd (No 3) [2010] NSWLEC 198 at [262], Pepper J identified from the authorities the following updated criteria for reliance on the defence of honest and reasonable mistake: (a) a positive belief in a state of facts that, if they existed, would make the act innocent and take the act outside the operation of the statute; (b) the act must be based on a reasonable belief; (c) the mistake must not be one of law; (d) a mixed mistake of fact and law will generally be a mistake of law;278 (e) the defendant has the evidentiary burden of raising the defence; (f)

the prosecutor must then negative the defence beyond reasonable doubt;

(g) a lack of knowledge or mere ignorance is insufficient to establish the defence; (h) there must be more than a general understanding that everything is in

order; (i)

the mistaken belief must be sufficiently specific to relate to elements of the offence in question;

(j)

an absence of fault or an absence of negligence is not an element of the defence; and

(k) the ground of exculpation is a narrow one. A general belief in the adequacy of a system of prevention, or lack of any particular reason to apprehend that the operation of plant or equipment might result in an environmental offence, therefore, may not be sufficiently specific to establish the defence. One example of where the defence has been successfully raised is Environment Protection Authority v Milpharma Pty Ltd [1994] NSWLEC 189. Bignold J found that a director’s belief that there would be no overflow from a wastewater tank was, in the circumstances, both honest and reasonable. Where offences are treated as absolute liability then of course this defence will not apply.279 20.80 Other circumstances that might be thought to support the defence of honest and reasonable mistake would be ‘officially-induced error’; that is, the defendant was misled by advice from government or local government officials. In Ostrowski v Palmer [2004] HCA 30, the defendant was convicted for fishing in a marine protected zone, as a result of misleading advice given to him by the Western Australia Fisheries Department. The High Court indicated that the conviction must stand, because the defendant’s error was one of law not of fact;280 but roundly criticised the prosecution (which subsequently remitted the penalty and costs in a late admission that it had [page 887] erred in bringing the case) for prosecuting in such circumstances.281 The defence of ‘officially induced error’ was not supported, though neither was it precluded. In Environment Protection Authority v Unomedical Pty Ltd (No 3) [2010] NSWLEC 198 at [285], Pepper J set out the necessary elements of this defence, as gleaned from overseas authorities, as follows: (a) an error of law or of mixed fact or law was made; (b) the defendant who committed the act giving rise to the commission of the offence considered the legal consequences of his or her actions prior

to committing the act; (c) advice was sought by the defendant and was obtained from an appropriate official; (d) the advice was reasonable; (e) the advice was erroneous; and (f)

the defendant relied on the advice in committing the act.

The court, however, concluded (at [305]) that: ‘I do not accept that the defence of officially induced error of law is a defence available … at common law in Australia’.

Other statutory defences 20.81 The usual statutory defences are that the offending action was covered by the terms of a regulation or a licence issued by the regulator282 or occurred as a result of a genuine emergency.283 This defence applies, however, only where the licence or other authority permits the particular conduct or consequences that would otherwise be unlawful. In Environment Protection Authority v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289, for example, the defendant’s plea that water pollution was permitted or regulated by an environment protection licence, in the context of the defence established by the Protection of the Environment Operations Act 1997 (NSW) s 122, was rejected by the court. Sometimes the legislation may create other defences akin to due diligence, and extend these to strict liability crimes; for example, in South Australia, the Environment [page 888] Protection Act 1993 s 124 provides a general criminal defence that the alleged offence did not result from any failure on the defendant’s part to take all reasonable and practicable measures to prevent the commission of the offence or offences of the same or a similar nature. Such a defence could be established by proof of compliance with proper workplace systems and procedures.284 The Native Vegetation Act 1991 (SA) s 40 also provides: ‘It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the

commission of the offence’. The burden of proving such a defence lies with the offender.285 Mistake of law, rather than of fact, is never a defence. This includes mistake as to the legal consequences or legal significance of the facts; and acting on erroneous advice as to the legal effect of the facts.286 Statutory exclusions of liability for local councils and government agencies, and their officers and employees, by provisions such as the Local Government Act 1993 (NSW) ss 731–733 (flood liable and coastal land) are also interpreted to apply only to civil not to criminal liability.287 20.82 Sometimes legislation may provide that an offence is committed by a person who does not have a ‘reasonable excuse’. In a prosecution of a forests protester in a local court in New South Wales for failing to obey the directions of a police officer, lawfully given, the defence of ‘reasonable excuse’ was pertinent to the offence. The judge held that the charge should be dismissed, because the defence had been made out: There is evidence that the proper authorities had been alerted to the questionable legality of the logging operation but the operation was continuing. The fact is that shortly after the accused’s arrest the operation was halted. Under such circumstances, I accept that the accused’s action was reasonable and he therefore had a reasonable excuse for doing what he did.288

20.83 In Booth v Frippery Pty Ltd [2006] QCA 74, the Queensland Court of Appeal had to consider a curious and novel defence, supported by the Planning and Environment Court, that unlawfully harming bats by constructing electric grids to [page 889] protect a lychee crop was an unintended consequence of an otherwise lawful activity. The Nature Conservation Act 1992 (Qld) s 88(3) stated: It is a defence to a charge of taking a protected animal … to prove that — (a) the taking happened in the course of a lawful activity that was not directed towards the taking; and (b) the taking could not have been reasonably avoided.

Ignoring the obvious point that the only way the electric grid system could protectthe lychee crop was by ‘taking’ the bats, the Planning and Environment Court thought that the defence was made out because the use of the grids was objectively directed to protecting the lychee crop and that the effect on some flying foxes was incidental to that purpose. However, as the Court of Appeal said in rejecting that interpretation, at [30]: This interpretation of s 88(3) could well negate much of the intended effect of the statute. The

objective of the conservation of wildlife would give way to the objectives of an individual. As long as the taking of the animal was not an end in itself, a defendant who in pursuing an economic self interest could prove the matter in paragraph (a) of s 88(3) no matter how disproportionate were the environmental consequences. That seems at odds with the way in which this statute was intended to balance the competing public and private interests involved in cases such as the present one. And it is unlikely that this balancing was intended to be affected in the form of an expressed defence to a charge of a contravention. Instead, the apparent intention was to balance those interests through the regime of conservation plans, licences, permits and other authorities.

20.84 In the later case, Booth v Frippery Pty Ltd [2007] QPEC 99, the Planning and Environment Court said: ‘If a defendant intended that the activity should result in the taking of a protected animal, the defence is not available, regardless of the motive by which the defendant was induced to form that intention’. This seems to effectively have quashed any suggestion that there could be a defence of ‘unintended consequences’.

Corporate defences 20.85 For a corporation, the defences to a crime of strict liability are the same as for individuals. The availability of the defence of honest and reasonable mistake, however, may depend on whether the person who committed the offence had the authority to represent the mind and will of the company.289 It may also depend on whether the corporation exercised due diligence.290 For offences involving vicarious liability, the corporation may also be able to plead ‘due diligence’ or that the corporation took all reasonable precautions to avoid [page 890] committing the offence.291 As previously noted, however, this defence is very difficult to make out, and the mere existence of an EMS or plan will not automatically make out the defence, though it may be relevant to sentencing. 20.86 For officers of corporations, potentially liable for the offences committed by the corporation, there are commonly two defences. For example, the PEOA s 169 states: Each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision (as the corporation), unless the person satisfies the court that: (a) (repealed) (b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision,292 or

(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.293

20.87 The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) states that this personal liability may be tempered by the requirements that the officer must have known that, or was reckless or negligent as to whether, the contravention would occur, and that he or she must have been in a position to influence the conduct of the body in relation to the contravention, and failed to take all reasonable steps to prevent the contravention.294 20.88 In Queensland, the requirement for ‘due diligence’ is replaced by a test of taking ‘all reasonable steps’ to ensure compliance,295 though this would seem to introduce a test of similar rigour. Importantly, although the onus of establishing this defence lies on the person seeking to rely on it, the standard of proof for establishing the defence is ‘on the balance of probabilities’; that is, the civil standard, not ‘beyond reasonable doubt’.296 In State Pollution Control Commission v Kelly R V (1991) 5 ACSR 607 at 608, Hemmings J commented of the corporate defence of due diligence that a person ‘has the onus to prove not only diligence, but also all due diligence. This requires that everything properly regarded as due diligence should be done’. 20.89 The defence of ‘no influence’ is potentially more useful to directors of larger corporations that have no control over the day-to-day operations that resulted in a contravention; only the ‘line managers’ might be exposed. In smaller corporations, this [page 891] defence is likely to be less useful because by their very status directors are likely to have sufficient influence over the corporate activities that led to the breach.297 20.90 To minimise exposure to environmental liabilities, directors and managers can take a number of steps. These include: being familiar with the environmental effects or activities of all sections of the corporation; identifying those members of staff who have responsibility for environmental management; preparing an integrated environmental management program that covers

compliance with regulatory requirements, risk management and insuranceremedying deficiencies revealed by environmental auditing; keeping a register of policy and legal requirements and changes, and keeping abreast of developments; demonstrating environmental responsibility to company employees and the public at large; exercising control over the actions of independent contractors; and keeping adequate records that demonstrate compliance with environmental requirements. 20.91 Simply having and complying with an environmental management system is not in itself a defence to the commission of a criminal offence. However, it may help to establish a ‘due diligence’ type defence such as that set out in the Environment Protection Act 1993 (SA) s 124, which states that it will be a general defence to criminal charges that the alleged offence did not result from any failure on the defendant’s part to take all reasonable and practicable measures to prevent the commission of the offence, and that this may be established by proof of compliance with proper workplace systems and procedures. The Water Act 2007 (Cth) s 169 also stipulates certain criteria that would normally be part of an environmental management system (EMS) as considerations in assessing whether an executive officer took reasonable steps to prevent a contravention. Otherwise, the existence of, and compliance with, an EMS, while it may not be relevant to liability, may be taken into account in sentencing.298

Sentencing 20.92 The general purposes of sentencing may be said to be:299 (a) to ensure that the offender is adequately punished for the offence; (b) to prevent crime by deterring the offender and other persons from committing similar offences; [page 892] (c) to protect the community from the offender; (d) to promote the rehabilitation of the offender; (e) to make the offender accountable for his or her actions;

(f)

to publicly denounce the conduct of the offender; and

(g) to recognise the harm done to the victim of the crime and the community. A fundamental consideration of relevance to environmental offences is the degree to which the offender’s conduct offends against the objectives of the legislation.300 The purposes of sentencing for environmental crime are retributive, preventative and restorative.301 This means that sentences need to: (a) take into account the community’s view of the moral reprehensiveness of harming the environment, and the community’s concept of fairness, that all persons should bear the cost of complying with environmental laws; (b) achieve individual deterrence to prevent the defendant from reoffending; (c) achieve general deterrence to prevent or discourage others from offending; (d) recognise the harm caused or likely or potentially to be caused to the victims of the crime; the environment, as well as other citizens such as adjacent landowners and nearby residents. Where legislation is amended to replace relatively lower fine levels with significantly higher maximum penalties, then sentencing patterns should reflect this public expression by the community, through Parliament, of the seriousness of the offence.302 But this does not mean that there must therefore be an increase in penalty for a particular offence by the same multiple as the maximum penalty was increased.303 20.93 Courts traditionally consider a wide range of factors in determining an appropriate penalty for an offence. Legislation may indeed instruct the court what matters it should take into account.304 For example, under the PEOA s 241, in addition [page 893] to any other relevant considerations, the court must, in imposing a penalty, take into account: the extent of the harm caused or likely to be caused to the environment by the commission of the offence; the practical measures that could have been taken to prevent, control, abate or mitigate that harm;305

the extent to which the person who committed the offence could reasonably have foreseen that harm; the extent to which the person who committed the offence had control over the causes that gave rise to the offence; and whether, in committing the offence, that person was complying with orders from an employer or supervisor.306

General approach to sentencing 20.94 The general approach to sentencing encompasses the following elements:307 a recognition that general and specific deterrence are essential purposes of sentencing; an ‘instinctive synthesis’ methodology that involves weighing the objective circumstances of the offence with the subjective circumstances of the offender; applying principles of totality and even-handedness; to reach a penalty that is appropriate in the circumstances; and parity; that like offenders should be sentenced in a like manner to avoid a justifiable sense of grievance. This is particularly the case where there are codefendants.

Deterrence 20.95 In Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, the New South Wales Court of Criminal Appeal said that in determining an appropriate penalty, two important things had to be borne in mind: the seriousness with which [page 894] the community regarded the offence, and the purposes sought to be achieved by the imposition of the penalty.308 In this case, which involved an escape of pesticides from aerial crop-spraying that poisoned a river, the court held that the offence was of such a nature that sentencing ‘should embrace powerful considerations of general deterrence. Those who handle dangerous chemicals must be regarded as under a heavy obligation to the rest of the community to do so with the utmost care. This court should not be seen to send any message

other than that’.309 Similarly, in another case involving dangerous chemicals, the court was at pains to point out that a non-profit organisation (in this case, a golf club) should not be treated differently from any other employer; this was, in itself, no excuse for its failure to adequately supervise employees.310 20.96 The deterrence aspect of sentencing is a vitally important consideration.311 Penalties must ensure that the costs of prevention are factored into business decisions.312 It has already been said that in the past, environmental crime has tended not to be regarded, particularly in lower courts, as ‘real’ crime. A classic illustration of this is Dal Piva v Maynard (2000) 112 LGERA 165. In this case a ‘manifestly inadequate’ fine of $100, imposed by a magistrate for what was described in the Supreme Court of South Australia as a ‘serious breach’ of unlawfully clearing native vegetation, was raised by the court to $17,000. The court cited with approval comments made by Duggan J in Piva v Brinkworth (1992) 59 SASR 92 at 96, that: … in order for legislation … to succeed, there must be effective means of enforcement. The harshness of the statutory penalties must be viewed in this light. Often the clearing of land in circumstances such as this will result in a lasting commercial gain to the landholder. Mitigating factors can be allowed for, but the emphasis on general and individual deterrence remains a vital consideration.313

[page 895] There may be a greater need for specific deterrence where the defendant has knowledge of its responsibilities and the consequences of noncompliance. In Cessnock City Council v Quintaz Pty Ltd; Cessnock City Council v McCudden [2010] NSWLEC 3, the offences arose out of a reasonable suspicion that asbestos contaminated material was present on the site. The defendant company and director operated a waste disposal business that, among other things, dealt with demolition and asbestos waste. The defendants failed to comply with a clean-up notice and withheld information sought by council. The corporation was fined $112,500 plus costs of $45,700; the director was fined $21,000 plus costs of $26,700. By contrast, where a defendant has taken immediate steps to prevent a recurrence of an offence, and expressed contrition and remorse, specific deterrence may be less important.314 20.97 Deterrence is also relevant to negotiated settlements. Although a court may well look favourably upon settlements negotiated between the prosecutor and the accused, making orders that reflect terms that have been agreed between the parties, nevertheless the court also has a duty not simply to accept and adopt the position put forward by the parties but to determine the appropriate penalty, in the light of the nature of the unlawful conduct and

its consequences, and the need for deterrence. In Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753, for example, the pecuniary penalty imposed by the court for breach of provisions of the EPBCA ($220,000) was double the amount that had been agreed between the parties. 20.98 Deterrence may also warrant a custodial sentence, particularly for intentional conduct; for example, a caravan park operator who chose to ignore warnings from the regulator not to dispose of raw sewage into a nearby river.315 Finding the operator guilty of wilfully disposing of waste in a manner likely to harm the environment, the court fined him the maximum under the legislation ($250,000), sentenced him to 12 months’ imprisonment and awarded some $240,000 in costs to the prosecutor. A court may not, however, sentence an offender to imprisonment unless it is satisfied that no other penalty is appropriate, having regard to all the possible alternatives.316 Although imprisonment for environmental offences is not common, it is the ultimate deterrent. In R v Dempsey [2002] QCA 45, an offender who, in ‘a serious, blatant and cynical act of environmental destruction for commercial gain’ deliberately cut down timber in a world heritage area was also imprisoned for 12 months. Davies JA said, ‘This is an offence in which, in particular, the imposition of a custodial sentence may be an effective deterrent and, in my opinion, that is an important factor here’. [page 896] 20.99 In R v Moore [2001] QCA 43, in holding that a sentence of 18 months’ imprisonment was not excessive for a caravan park owner involved in unlawful disposal of sewage waste, Williams JA said at [21]: Major environmental offences, particularly when there is a high degree of criminality involved because of the repetitive nature of the conduct, will call for the imposition of custodial sentences. Here, as already noted, the conduct of the applicant was negligent in the extreme showing virtual contempt for the law. The head sentence of 18 months’ imprisonment was towards the top, if not at the top of the range, for conduct of the type in question, but in all the circumstances I am not persuaded that it was manifestly excessive.

In R v Boyle,317 a Queensland grazier only escaped a jail term for illegally clearing land in a national park that separated his two properties because he agreed to transfer 480 hectares of high conservation land to the national park domain and the prosecutor in return agreed not to press for a jail term. The court, however, made it clear that, but for the agreement, a jail term would have been imposed. The grazier was fined $10,000 and ordered to pay $410,000 compensation to the national park estate, which could be achieved

by transfer of the land identified in the agreement. Only a short time after sentencing, logging and clearing was found to be occurring on the land the subject of the agreement. Although not technically unlawful, this clearly breached the spirit of the agreement entered into with the prosecutor. Boyle was taken back to court and the fine was increased to $50,000. 20.100 In Plath v Rawson [2009] NSWLEC 178 at [181], Preston CJ undertook a useful review of cases in which imprisonment has been considered and applied in environmental cases, both in Australia and overseas, teasing out the following circumstances in which a custodial sentence has been given: (a) where the offender’s conduct involves a considerable degree of wilfulness and deception; (b) where an actuating reason for the offender’s conduct is to make a profit or save an expense; (c) where the offender’s conduct posed a high level of risk to or actually caused considerable harm to the environment and the public; (d) where the offender’s conduct is over an extended period or is of a repetitive nature; and (e) where deterrence, both individual and general, makes the custodial sentence appropriate. It is unusual for local courts to order custodial sentences in environmental cases. However, in Betland v Environment Protection Authority [2010] NSWLEC 183, a custodial sentence of four months, imposed on an offender in a local court for using a prescribed substance, namely a poison, to attempt to harm a bird without consent, was set aside by the Land and Environment Court as being excessive in [page 897] the circumstances. In this case, the court considered that a fine was an appropriate alternative penalty. 20.101 For public bodies, such as local councils or water authorities, the court may also adopt an attitude to sentencing that reflects the fact that public authorities should be leading by example in compliance with the law. For example, a public authority that has responsibility for environment protection, and in particular in a sensitive alpine area, should be expected to be setting an example; and these particular attributes of the defendant should

be considered in setting a penalty that reflects specific deterrence for an offence of pollution.318 In Environment Protection Authority v Sydney Water Corporation Ltd (1999) 102 LGERA 232, Talbot J said (at 71), ‘The defendant has a responsible role to play in the public interest. It is reasonable to expect that it, particularly having regard to its status as a state-owner corporation, adopt preventative measures in circumstances where the potential harm to the environment is manifest to itself and to the public in general’.319 This has subsequently been interpreted as meaning that although a penalty should not be increased merely because the defendant is a public authority, neither should leniency be granted because of such status.320 20.102 For private bodies operating under a licence granted by a regulator, it has been said that the licence reflects a ‘public trust’ conferred on the licensee that heightens the licensee’s obligations to comply with the terms of the licence.321 This line of authority must now, however, be doubted following the preference expressed by Preston J in Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278, that describing a breach of a licence condition as breach of a public trust adds nothing to the characterisation or seriousness of the offence and there is no need to graft such a concept onto the nature of the statutory scheme.322

The instinctive synthesis approach 20.103 The High Court has indicated that the instinctive synthesis method is the correct method of sentencing. This means that a court must identify all the factors [page 898] relevant to the sentence and weigh their significance to arrive at an appropriate sentence.323 Synthesising involves taking into account both the objective and the subjective gravity of the offence; that is, the objective circumstances of the offence and the personal circumstances of the offender.324 20.104 In adopting this as the preferred approach to sentencing, facts adverse to the defendant are not to be taken into account unless those facts have been proved beyond reasonable doubt, whereas facts or circumstances favourable to the defendant are to be taken into account if established on the balance of probabilities.325 For example, in Connell v Santos NSW Pty Ltd [2014] NSWLEC 1, an inference sought by the prosecutor in relation to a

failure to report a spill of contaminated water from a coal seam gas operation, coupled with inaccurate reporting in its environmental management reports, that the defendant did not wish to alert the regulator because of the possibility that its operations might be suspended or further conditions imposed, was held not to have been made out beyond reasonable doubt and therefore could not influence sentencing considerations. On the other hand, on the evidence certain inferences could be made that the defendant did in fact foresee the risk that the spill, coupled with failure to report it, were likely to cause harm to the environment, and therefore these were legitimate factors to be taken into account in sentencing. 20.105 The objective gravity (seriousness of the offence) is marked by two elements: an examination of the precise acts or omissions of the offender, and the environmental consequences of those acts or omissions.326 Generally speaking, the more serious the environmental harm, or potential harm, the higher is the penalty.327 The statutory maximum for the offence is therefore of great relevance in determining the objective gravity of the offence.328 [page 899] 20.106 Other elements that go to determining objective gravity include:329 foreseeability of the risk of harm;330 the state of mind of the offender, particularly in relation to the elements that led to the commission of the offence (for example, terms of any environment protection licence; statement of environmental effects; operation of its pollution control technology); whether the offender acted in a deliberate and premeditated way in disregard of whether the conduct was lawful;331 the extent to which the offender had control over the causes that gave rise to the offence;332 the measures that the offender did or could have taken to prevent, control, abate or mitigate the harm;333 the reasons for the occurrence of the offence334 (carrying out the offence to make a profit, to save incurring an expense or to avoid the cost of obtaining and implementing a statutory permission, will increase the seriousness of the offence);335 evidence of systematic non-compliance;336 and whether the legislation prescribes an additional penalty in respect of harm to

individual elements of the generic offence — for example, additional penalties for each animal or plant affected by an offence of harming wildlife without being licensed.337 The objective gravity of the offence also fixes the upper and lower limits of proportionate punishment.338 [page 900] The elements that go to determining subjective gravity (circumstances personal to the defendant) comprise339 prior good character, including lack of any criminality; genuine contrition and remorse; cooperation with regulatory authorities; a plea of guilty; and any hardship already suffered.340 Consideration of the subjective factors will then help to determine the actual sentence within the range dictated by the objective gravity.341 It is also important to note, however, that subjective mitigating features should never produce a sentence that fails to reflect the gravity of the incident or the objectives of punishment that include both retribution and deterrence.342 20.107 In Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, Kirby P undertook a detailed analysis of the particular aggravating and mitigating circumstances that could be applied in fixing a penalty. One example is whether the business engaged in was environmentally useful and whether a pollution control program was being undertaken. Other aggravating or mitigating factors could include:343 the prevalence of that type of offence;344 the impact of the offender’s conduct on the environment345 or on victims of the offence;346 whether the offence was committed for financial gain;347 [page 901] an early entry of a plea of guilty;348 the defendant’s good character and lack of prior convictions; the defendant’s history of prior convictions;349 the defendant’s state of health at the time of the incident;350 cooperation with the investigation;351

genuine contrition and remorse, perhaps not only displayed in court but indicated by letters of apology or offers of remediation;352 practical measures that could have been or were undertaken to prevent, control, mitigate, abate or remediate the harm;353 the fact that a repeat offence was unlikely given the measures since taken by the defendant;354 any agreement voluntarily undertaken by the defendant with the regulator to the future benefit of the environment;355 recompense by the offender for the harm caused;356 and unreasonable delay by the prosecutor in bringing the proceedings.357 It has, however, been held that taking costs into consideration should not necessarily equate to an equivalent deduction from the penalty that would otherwise be imposed. [page 902] Costs are not part of any penalty and should not be regarded in that way, though can be considered as part of the court’s sentencing discretion in determining the appropriate amount of any fine.358 20.108 In Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102, the defendant was convicted of breaching the conditions of a licence that restrained logging operations, specifically in this case hazard reduction burning, within a 100 metre zone around the habitat of an endangered mouse. In sentencing, the judge commented: … in my view, the number of convictions suggests either a pattern of continuing disobedience in respect of environmental laws generally or, at the very least, a cavalier attitude to compliance with such laws … [G]iven the number of offences the Forestry Commission has been convicted of and in light of the additional enforcement notices issued against it, I find that the Forestry Commission’s conduct does manifest a reckless attitude towards compliance with its environmental obligations. I, therefore, find the prior criminality of the Forestry Commission to be a relevant aggravating factor to be taken into account in the determination of the appropriate penalty to be imposed in these proceedings.

20.109 The degraded nature of the environment that was harmed is not in itself a mitigating factor, but it could of course be relevant to any assessment of the objective consequences of the commission of the offence.359 The existence of any such mitigating factors could lead the court to apply a ‘discount’ (a curious term) to any penalty that would normally be imposed. For example, in Environment Protection Authority v BHP Steel (AIS) Pty Ltd

(2004) 132 LGERA 213, the fine of $100,000 for an offence of water pollution represented a 25 per cent discount based on the response of the defendant corporation after the incident occurred.360 20.110 Claiming leniency because the offender relied on the assurances of others will not avail an offender in strict liability cases.361 And although the purpose of imposing strict liability is not to punish ‘luckless victims’,362 yet even in strict liability cases, where intent is irrelevant to liability, it is still important to consider with what intention and appreciation of the offence it was committed. A strict liability offence that is committed intentionally or negligently will be objectively more serious than [page 903] one that is committed unintentionally or not negligently.363 For example, the fact that an offender intentionally commits offences of strict liability with knowledge of the relevant licensing requirements makes these offences objectively more serious than similar offences not committed with such premeditation and knowledge and thus expose the offender to higher penalties.364 The conduct of the offender may also indicate that a high level of penalty should be imposed; for example, repeated failure to observe the terms of an environment protection order and enhance profitability without due regard to the terms of a licence.365 On the other hand, where an offender has been charged with an offence of strict liability, it would be wrong to make a finding of negligence and then treat that as an aggravating factor in sentencing, because this would effectively be to find the defendant guilty of an offence with which he or she has not been charged, namely, acting negligently, a higher range offence than one of strict liability.366 20.111 In Ngo v Fairfield City Council [2009] NSWCCA 241, the New South Wales Court of Appeal stressed that in strict liability cases it is particularly important that there should be an appropriate assessment of the culpability of the offender. It is axiomatic that the penalty should reflect not only the gravity of the offence, but the circumstances of the offender. So, in this case, where a fine and costs order would have forced the defendant to sell his home, this could be seen to be an excessive consequence of the strict liability of the defendant for an offence committed in subjectively innocent circumstances. The court therefore reduced the penalty of $22,500 imposed by the Land and Environment Court to $3000, and ordered costs of $4110. It has also been said that where an appeal court is considering increasing a sentence, the offender should be given due warning in order to allow for withdrawal of

the appeal.367 Where an offence may also be prosecuted in a lower rather than higher court, it has also been said that the maximum penalty available in the lower court should be a factor for consideration in sentencing in the higher court, and that the penalty imposed by the higher court should not exceed the maximum available in the lower court.368 20.112 The conduct of the defendant might also persuade the court that, although the defendant could be regarded as technically liable, nevertheless a conviction [page 904] should not be recorded; for example, because the defendant is not personally at fault and no environmental harm has actually occurred.369 The Crimes (Sentencing Procedure) Act 1999 (NSW) s 10, for example, allows the court to dismiss a charge without proceeding to sentence, even where the offender is guilty. The section lists various criteria to which the court must have regard before doing this, including the defendant’s character, antecedent criminal history, the trivial nature of the offence, and extenuating circumstances. In practice, the court will weigh up the evidence on such matters to determine whether this is an appropriate course of action.370 If the court decides not to move to conviction, it may still order a fine and payment of costs. A discharge without conviction would not, however, be appropriate where the offence is not trivial and there is a lack of extenuating circumstances.371 However, where an offence, although not trivial, is of an unusual nature, not foreseeable, committed by a person of good character with no previous convictions, and no significant environmental harm occurred, then this may be a case where a court could exercise its discretion not to record a conviction.372 Taking into account the different objective and subjective elements that have been identified in relation to each co-defendant may mean that applying the principle of parity may not be a straightforward exercise.373

Totality and evenhandedness 20.113 In Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, the New South Wales Court of Criminal Appeal indicated that principles of ‘evenhandedness’ and ‘totality’ should also be applied when considering penalties under environment protection legislation.374 Evenhandedness means in essence that the court should have regard to sentencing patterns in similar cases. Totality is a principle of sentencing that is applied to an offender who has committed more than one

offence. An ‘aggregate’ sentence should reflect the overall criminality of the offences and not be arrived at by a simple arithmetical addition of sentences based [page 905] on what might be appropriate for each individual offence, as this might exceed what is appropriate in the circumstances. The principle of totality enables a court to mitigate what strict justice would otherwise indicate where the total effect of cumulative sentences merited by separate offences becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.375

On the other hand, the court must also consider the need to uphold public confidence in the administration of justice. If the aggregate of sentences were reduced substantially it might suggest that offenders who committed a series of deliberate offences could escape effective punishment for successive offences each of which contributed to a whole course of deliberate criminal behaviour.376 A string of offences that might be identical or similar in nature, yet are temporally separate and discrete offences, should not attract the principle of totality.377 The principle of totality may also not have the same force or extent of application in the case of the imposition of fines, as opposed to a sentence of imprisonment.378 In Circelli v Mulhern’s Waste Oil Removal [2009] SAERDC 17, for example, an offender who polluted the environment causing serious environmental harm was fined $260,000, reduced from a total of $330,000 after applying principles of totality to the aggregate of the 10 separate offences with which the offender had been convicted.379 20.114 Application of the principle of ‘evenhandedness’ can usefully be seen in Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4 at [83]–[86] where, in sentencing an offender for illegal clearance of native vegetation, Lloyd J said: The principle of even-handedness requires the court to have regard to the general pattern of sentencing in cases which can be regarded as judicially relevant to the case at hand, recognising of course that each case is determined on its own necessarily peculiar facts: Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701–703. The court’s attention was not drawn to any case involving a penalty for an offence against s 12 of the Native Vegetation Act. In Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530, I imposed a fine of $30,000 following a plea of guilty to a charge of unlawfully clearing some 30 hectares

[page 906] of native vegetation, contrary to the then s 21(2) of the Native Vegetation Act. In DirectorGeneral of the Department of Environment and Climate Change v Wilton [2008] NSWLEC 297,

Biscoe J imposed a total penalty of $40,000 following a plea of guilty to two charges of unlawfully clearing about 13 hectares of native vegetation, contrary to the same provision. In Minister for Environment and Heritage v Greentree (No 3) [2004] FCA 1317; (2004) 136 LGERA 89, Sackville J imposed a penalty of $150,000 on an individual offender and $300,000 on a corporate offender for the unlawful clearing of about 100 hectares within a property in northern New South Wales contrary to s 16(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The area cleared had a significant impact on a declared Ramsar wetland. … The maximum penalty in that case was $550,000 in the case of an individual and $5.5 million in the case of a corporation. The judgment of Sackville J was subsequently affirmed on appeal: Greentree v Minister for the Environment and Heritage [2005] FCAFC 128; (2005) 143 LGERA 1. Although the land cleared by Mr Hudson was not of the same environmental significance as that in the Greentree case, it was precisely the kind of native vegetation that s 12 of the Native Vegetation Act is designed to protect. The extent of the clearing — 486 hectares — is substantial. The penalty should properly reflect the deliberate nature of the offence which was committed despite the express instructions given to Mr Hudson that native trees were not to be cleared. The clearing was carried out as part of the agricultural activities on the land and in that sense the offence was part of a commercial operation — that is, it was motivated by commercial considerations.

The maximum penalty for this offence was set at $1.1 million; Hudson was sentenced to a fine of $400,000.380 20.115 Another case that involved both a corporate and an individual defendant is Gordon Plath of Dept of Environment and Climate Change v Fish; Gordon Plath v Orogen Pty Ltd [2010] NSWLEC 144, where the defendants pleaded guilty to a charge of clearing native vegetation and damaging the habitat of a threatened species, namely the koala, contrary to the National Parks and Wildlife Act 1974 (NSW) s 118D. A developer had engaged the defendants to provide expert planning and environmental advice in relation to a subdivision. The defendants had provided incorrect advice on whether approval was required to clear certain types of native vegetation and based on that advice the developer had engaged a contractor to remove native vegetation that formed part of the koala habitat. The first defendant was the main shareholder of the second defendant corporation. The court remarked that since the defendants were charged with the same offences arising from the same circumstances it was important that the sentences imposed should be reviewed and adjusted to avoid double punishment, and that the sentencing should be consistent, otherwise it could give rise to a justifiable sense of grievance between the defendants. The court ordered that Origen should pay a fine of $10,000 and engage in specified mapping projects. The court ordered that Fish should pay a [page 907]

fine of $5000 and also engage in the mapping projects. The court also ordered that the defendants should publicise the offence and that the defendants should pay the prosecutor’s costs amounting to $105,000.

Additional sentencing options381 20.116 The range of sentencing options now open to courts has also been widened in recent years. One of the factors to which a court will have regard in sentencing is the ability of the accused to pay a fine,382 so alternative means of punishment are a valuable addition to the traditional penalties of fines and jail terms.383 Because these orders are additional to, not instead of, any other penalty, imposition of such orders ought not be considered in determining what financial penalty should be imposed.384 Other deterrents that may now be imposed include:385 requiring the offender to publicise the offence.386 Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma;387 requiring the offender to carry out a mandatory environmental audit;388 relieving the offender of any monetary benefits enjoyed as a result of the commission of the offence; requiring restoration, prevention or remediation;389 [page 908] compensating those who take action in connection with the offence, including costs of investigation, or who suffer harm because of it;390 undertaking community work;391 and carrying out work for the restoration or enhancement of the environment in a public place or for the public benefit. In practice, monetary orders of this nature are imposed in lieu of fines.392 In practice, a combination of these may often be appropriate.393 20.117 In Garrett v Williams (2007) 151 LGERA 92, Preston J introduced the concept of restorative justice as an option in sentencing. ‘Restorative justice’ is a process whereby offender and victims meet and participate together in resolution of the matters arising from the crime, generally with the assistance of a facilitator.394 A restorative outcome may result in the offender

making restitution or reparation. Restorative justice may be initiated by the court after a plea of guilty but before sentence; though participation must not be coerced. In this case, the offender had knowingly caused or permitted the destruction of Aboriginal objects in breach of the National Parks and Wildlife Act 1994 (NSW) s 90. The maximum penalty for such offences was specified to be 50 penalty units, or imprisonment for up to six months, and up to 200 penalty units for a corporate offence. Under the Crimes (Sentencing Procedure) Act 1999 (NSW) an ‘aggravating circumstance’ includes ‘substantial’ harm including emotional harm. In this case, [page 909] the harm to the objects could not be said to be substantial; and ‘knowingly’ causing damage to the objects was not in itself an aggravating circumstance because it was already an element of the offence. The absence of prior convictions, expressions of contrition and remorse, cooperation with authorities and plea of guilty were also mitigating factors. 20.118 On the other hand, an Aboriginal elder had given evidence of the emotional damage caused by the commission of the offence to the local Aboriginal community. The offender had agreed to a restorative justice conference and a report was presented to the court outlining the progress that had been made towards a Voluntary Conservation Agreement and other evidence of reparation. Preston CJ held that in sentencing the offender he would take into account the already significant costs incurred in the conference process and its outcomes. In the end, the aggregate amount for the offences was assessed at $650. While this may seem an insubstantial penalty, the costs of reparation agreed to at the conference were substantial and certainly amounted to more than the maximum fine that would have been possible under the Act for these offences. Given the low maximum penalty, the assessment that imprisonment was not appropriate and that no other sentencing options were available to the court under this legislation, then the outcome of this case signals clearly that the option to initiate restorative justice conferences could be picked up by other courts and tribunals,395 particularly in the face of clearly inadequate fiscal or other penalties prescribed by legislation.396 20.119 In South Australia, the ERD Court is empowered to hold a ‘sentencing conference’. ‘The primary purpose of a sentencing conference is to negotiate action that the defendant is to take to make reparation for any

injury, loss or damage resulting from the offence, or to otherwise show contrition for the offence.’397 Parties to the conference may include not only the defendant and prosecutor, but also such representatives of persons affected by the commission of the offence as the court thinks appropriate; and such other persons as the court thinks may contribute usefully to the sentencing process. 20.120 To meet the criticism that low fines may encourage offenders to merely write off the costs of prosecution against greater profits, legislation may empower courts to impose additional penalties equal to the amount of monetary benefits that accrued [page 910] to the offender from the commission of the offence.398 Commonwealth fisheries legislation also empowers enforcement officers to seize vessels and equipment engaged in unlawful fishing activities;399 the illegal activity results in automatic forfeiture of the vessel and other equipment to the Commonwealth, which can then be seized.400 The transfer of ownership in the vessel and other seized objects occurs at the time of illegal fishing (effectively on seizure) not later on proof of the offence in court;401 although the court is also empowered on conviction to order forfeiture of vessels and other things used in connection with fisheries offences.402 20.121 Failure to carry out the orders of the court, or carrying them out improperly, may make the offender liable for further proceedings for enforcement of the orders403 and proceedings for contempt of court,404 the remedies for which may be further orders, fines and imprisonment. In Environment Protection Authority v Pannowitz (No 2) (2006) 153 LGERA 126, for example, publication of a notice otherwise than in a form ordered by the court, exposed the defendant to an order for contempt.405 Where the offender has made some attempt at compliance with the order, the court may be disposed, in contempt proceedings, to repeat the terms of the order while stressing the need for compliance and, if necessary, hinting at further penal possibilities if the order is not then obeyed. This should usually convince the offender of the necessity to faithfully carry out the terms of the order.406 20.122 In Chief Executive Officer, Department of Environment and Conservation v SZULC (No 2) [2011] WASC 315, the defendant was charged with contempt of court for breach of an injunction by clearing land. The defendant had previously [page 911]

been convicted and imprisoned for contempt of court in similar circumstances. The court said that the defendant’s conduct in flagrantly denying the authority of the law and the authority of the court must be denounced in an appropriately emphatic way. The defendant undertook a deliberate and calculated breach of the law, and committed contempt of court in order to obtain commercial gain or benefit. That magnified the seriousness of the offences that had been established; and the punishment imposed must be such as to discourage others from taking the risk that their unlawful conduct will not be detected. The defendant was sentenced to 15 months’ imprisonment.407 20.123 In Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 4) [2011] NSWLEC 246, the defendant had been convicted and sentenced for pollution offences committed at its abattoir. The court made orders requiring a mandatory environmental audit and publication of advertisements acknowledging the conviction. The defendant claimed insolvency as a reason for non-compliance. The court held that although contempt is a common law offence for which there is no maximum penalty, insolvency can be a significant issue in determining the level of seriousness of the contempt the court must punish. However, in this case the defendant was solvent, believed it was solvent, and simply sought to escape its responsibilities by claiming it was not. Enforcement of the process and orders of the court, and punishment for their breach, as a vindication of the court’s authority, are important functions of contempt sentencing. The defendant’s conduct was deliberately defiant and it met the definition of ‘contumacious’ (a conscious defiance of the authority of the court), placing the contempt at the upper end of seriousness. The situation required the court to strongly denounce the defendant’s conduct in the interests of both specific and general deterrence. A fine three times the size of the fine imposed at the time of sentencing the original offence would be appropriate. The defendant was therefore fined the sum of $300,000 plus costs in relation to the contempt.408 Where a defendant is not in a position financially to carry out a court order, however, this should be considered in relation to any suggestion that the defendant’s conduct in not complying with the order was ‘contumacious’ and thereby intended to undermine the authority of the court.409 Contempt of court may also expose a wrongdoer to a period of imprisonment and an indemnity costs order.410 [page 912]

20.124 In line with the normal rule about costs in litigation, that ‘costs follow the event’, costs may be claimed by successful prosecutors; however, in relation to matters that are dismissed or withdrawn, professional costs may be awarded, in exceptional circumstances, against a prosecutor who investigates a matter in an unreasonable or improper manner or if the proceedings were initiated without reasonable cause.411 The test for this is purely objective, not whether the investigation fell grossly below optimum standards.412

1.

See Page v Manningham City Council [2010] VSC 267.

2.

For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 121B; Sustainable Planning Act 2009 (Qld) ss 588 (show cause notice) and 590; Development Act 1993 (SA) s 84; Planning and Development Act 2005 (WA) s 217 (minister may require compliance with environmental conditions).

3.

For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 464; National Parks and Wildlife Act 1974 (NSW) (NPWA) s 91A; Natural Resources Management Act 2004 (SA) s 193.

4.

For example, Heritage of Western Australia Act 1990 (WA) s 59; Heritage Places Act 1993 (SA) ss 30 and 31; Heritage Act 2004 (ACT) ss 62–64; Heritage Act 1977 (NSW) s 136; National Parks and Wildlife Act 1974 (NSW) (NPWA) Pt 6A; Historic Cultural Heritage Act 1995 (Tas) s 57; Heritage Act 1995 (Vic) s 161; Queensland Heritage Act 1992 (Qld) s 58.

5.

For example, Protection of the Environment Operations Act 1997 (NSW) ss 91–4; Environmental Protection Act 1994 (Qld) ss 358 (environmental protection order), 363B (direction to remedy contravention) and 363H (clean-up notice); Environment Protection Act 1993 (SA) ss 93–95 and 99–103; Environmental Management and Pollution Control Act 1994 (Tas) s 44; Environment Protection Act 1970 (Vic) ss 28B, 31, 31A and 31B; Environmental Protection Act 1987 (WA) ss 65 (environmental protection notice), 68A (closure notice), 69 (stop order) and 73A (prevention notice); and see Oberon Council v Australian Game Meats Pty Ltd [2002] NSWLEC 96.

6.

For example, Environment Protection Act 1993 (SA) s 103H; Contaminated Land Management Act 1997 (NSW) s 17.

7.

For example, Native Vegetation Act 2003 (NSW) (NVA) ss 37 and 38; Threatened Species Conservation Act 1995 (NSW) Pt 7 Div 1; Nature Conservation Act 1992 (Qld) s 102; Vegetation Management Act 1999 (Qld) ss 54A and 54B; Threatened Species Protection Act 1995 (Tas) s 32; Flora and Fauna Guarantee Act 1988 (Vic) s 26; Natural Resources Management Act 2004 (SA) s 193; Environmental Protection Act 1986 (WA) s 70.

8.

For example, Soil Conservation and Land Care Act 1989 (SA) s 38; Soil and Land Conservation Act 1945 (WA) s 32; Catchment and Land Protection Act 1994 (Vic) ss 37–47.

9.

Tonkin v Cooma-Monaro Shire Council (2006) 145 LGERA 48.

10. In New South Wales, there is no right of merit appeal against a clean-up notice issued under the Protection of the Environment Operations Act 1997 s 91; though there is an appeal available against a management order issued under the Contaminated Land Management Act 1997 (NSW) s 14, which may require remediation: s 61. 11. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 121ZK; Protection of the Environment Operations Act 1997 s 289; Development Act 1993 (SA) s 86(1)(d) (ii); Environmental Protection Act 1994 (Qld) s 519, Sch 2; Environment Protection Act 1993 (SA) s 106(1)(d); Environment Protection Act 1970 (Vic) ss 34 and 35; Environmental Protection Act 1986 (WA) s 103(1)(a). 12. See, for example, R and S Krulow v Glamorgan Spring Bay Council [2011] TASRMPAT 147. 13. See, for example, Bisogni v Environment Protection Authority [2003] VCAT 362; Jeffman Pty Ltd and Lawrence Dry Cleaners Pty Ltd v Environment Protection Authority of New South Wales, Sydney Water Corporation and Douglas and Hilary Hutchinson [2011] NSWLEC 89 (management order for contaminated land); Swift Australia Pty Ltd v Director of Environment Protection Authority [2011] TASRMPAT 064 (amount of financial assurance and efficacy of targets set). 14. Terranora Group Management Pty Ltd v Director-General, Office of Environment and Heritage

[2013] NSWLEC 198. 15. See also Joly Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCA 133. 16. For examples of lawfully issued notices, see Greentree v Director-General of the Department of Land and Water Conservation [2002] NSWLEC 53; Buttsworth v Director-General of the Department of Land and Water Conservation (2003) 127 LGERA 170; Director-General Department of Land and Water Conservation v Prime Grain Pty Ltd (2002) 124 LGERA 233. See also Southon v Beaumont [2008] NSWLEC 12 (notice requiring applicant to attend at a specified time and place to answer questions regarding clearing of native vegetation, not uncertain or unreasonable). 17. Interestingly, statutes generally confer criminal enforcement powers on regulators for breaches of administrative orders rather than civil powers to enforce such orders by way of injunctive relief: see Commissioners of Soil and Land Conservation v Nabarlek Nominees Pty Ltd (2002) 120 LGERA 43; Oberon Council v Australian Game Meats Pty Ltd [2002] NSWLEC 96; Environment Protection Authority v Graham [2003] NSWLEC 408; R v Schembera [2008] QCA 266. 18. For example, Environmental Protection Act 1986 (WA) s 65(2); Environment Protection Act 1970 (Vic) s 62A. 19. See Harman, ‘Pollution Abatement Notices: the Requirement for Certainty’ (1995) 12 EPLJ 147. 20. The effect of this decision has probably now been overcome by amendment to the legislation in Victoria, which now defines ‘clean-up’ to include preparation of reports: Environment Protection Act 1970 (Vic) s 4. 21. Ward v Williams (1955) 92 CLR 496; Hume v Launceston City Council (unreported, Resource Management and Planning Appeal Tribunal (Tas), No 3166/96); Cantarella Bros Pty Ltd v Ryde City Council (2003) 131 LGERA 190; Bobolas v Waverley Council [2012] NSWCA 126. For an example of a notice issued lawfully under the Noxious Weeds Act 1993 (NSW) (now repealed), and not void for uncertainty, see Tonkin v Cooma-Monaro Shire Council (2006) 145 LGERA 48. 22. For example, Protection of the Environment Operations Act 1997 ss 91, 92, 98, 103 and 104; Environment Protection Act 1970 (Vic) ss 62, 62A, 62B and 66. 23. For example, Protection of the Environment Operations Act 1997 (NSW) ss 105–107. 24. For example, Environment Protection Act 1993 (SA) s 101. 25. Section 480D. 26. Sections 480E and 480N. 27. Sections 480J and 480K. 28. Sections 480L and 480M. 29. See . 30. Heritage Act 1977 (NSW) s 161; Queensland Heritage Act 1992 (Qld) s 66; Heritage Places Act 1993 (SA) s 38; Historic Cultural Heritage Act 1995 (Tas) s 74. 31. For example, Protection of the Environment Operations Act 1997 (NSW) ss 222–229; Environment Protection Act 1970 (Vic) s 63B. PINs tend to be issued for minor offences, such as littering and smoky vehicles. 32. See 15.43 and following. 33. See 7.46. 34. See 15.60 and following. 35. Though see 20.92 and following for the range of sentencing options open to some courts. 36. Protection of the Environment Operations Act 1997 (NSW) ss 246 and 247.

37. For example, Forestry Act 20102 (NSW) s 69S (enforcement by minister of breaches of integrated forestry approvals). 38. Nature Conservation Act 1992 (Qld) ss 173A, 173D, 173F and 173I; Environmental Protection Act 1994 (Qld) ss 505 and 507; Sustainable Planning Act 2009 (Qld) s 601. For an example of a detailed order requiring restoration of land following unlawful clearing of native vegetation, see Wall v Doyle [2008] QPEC 23. 39. Planning and Environment Act 1987 (Vic) ss 114 and 119. 40. Planning and Development Act 2005 (WA) s 216; Environmental Protection Act 1986 (WA) s 51S. 41. Sections 480A–480C. 42. Natural Resources Management Act 2004 (SA) s 201. 43. Coast Protection Board v Carramatta Holdings Pty Ltd [2015] SASCFC 64 (delays in agreed measures for rehabilitation increased complexity of site rehabilitation, justifying variation of remediation order). Such a provision replaces the general common law rule, that a court cannot recall or vary a perfected judgment, with a widely expressed power. 44. For example, Heritage Act 2004 (ACT) ss 69 and 70. 45. See 20.92 and following. 46. See Grigg, ‘Environmental Civil Penalties in Australia: Towards Deterrence?’ (2011) 28 EPLJ 36. 47. Sections 481–486D. Similar provisions appear in the Water Act 2007 (Cth) ss 146–154 and National Greenhouse and Energy Reporting Act 2007 (Cth) (NGERA) ss 29–38. And see Lipman, ‘An Evaluation of Compliance and Enforcement Mechanisms in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and their Application by the Commonwealth’ (2010) 27 EPLJ 98. 48. Section 18. 49. For example, s 18A. 50. Section 481. 51. Section 486A. 52. Section 486B. 53. Section 486C. 54. Section 486D. 55. See also Environment Protection Authority, ‘Policy for Calculation of Civil Penalties under the Environment Protection Act 1993’ (2009). According to Grigg, ‘Environmental Civil Penalties in Australia: Towards Deterrence?’ (2011) 28 EPLJ 36 at 49, this provision has been used once in an unreported case in the Environment Resources and Development Court to award a civil penalty of $60,000 involving contraventions by a licensed recycling facility. Grigg also reports that several penalties have been negotiated out of court. 56. These reflect the matters that parliament itself has indicated that courts should address in determining whether a civil penalty is appropriate: Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 481(3). 57. Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at 214; Minister for the Environment & Heritage v Greentree (No 3) (2004) 136 LGERA 89 at 106. 58. An appeal to the Full Court was subsequently dismissed: Greentree v Minister for the Environment and Heritage [2005] FCAFC 128. In Minister for the Environment and Heritage v Wilson [2004] FCA 6, a pecuniary penalty of $12,000 was awarded against a shark fisherman who set a net in a Commonwealth marine reserve without lawful authority.

59. Minister for the Environment and Heritage v Wilson [2004] FCA 6 ($12,500 for illegal fishing caused unintentionally by wind drift); Minister for the Environment and Heritage v Warne [2007] FCA 599 ($25,000 for a reckless incursion into a nature reserve). 60. Streets, Kruzas and Payton, ‘Environmental Undertakings: Ownership and Obligations’ (2002) 19 EPLJ 180. 61. See 13.16 and following. 62. Sections 486DA and 486DB; see also Water Act 2007 (Cth) ss 163 and 164; National Greenhouse and Energy Reporting Act 2007 (Cth) (NGERA) ss 45 and 46. See also Baird, ‘Big Sticks, Carrots and Enforceable Undertakings under the Environment Protection and Biodiversity Conservation Act 1999’ (2011) 28 EPLJ 3. 63. Section 253A. 64. Sections 67D and 67E. 65. Sustainable Forests (Timber) Act 2004 (Vic) Pt 8A. 66. See . 67. And see Environment Protection Authority of New South Wales, ‘Enforceable Undertakings Guidelines’, August 2009. 68. See . 69. Baird, note 62 above, at 7. 70. Environment Protection Act 1970 (Vic) s 67D(4). 71. For example, breaches of licence conditions: Environment Protection Authority v HTT Huntley Heritage Pty Ltd (2003) 125 LGERA 332. 72. Environmental legislation gives a wide range of investigative powers to authorised officers, and any obstruction of these powers, such as by denying lawful rights of entry onto premises, will also be supported by criminal penalties: see, for example, Environment Protection Authority v Taylor (1995) 130 LGERA 144 (denial of entry to premises). Criminal proceedings for contempt of court can also apply to refusals to carry out court-based orders; for example, Environment Protection Authority v Waight (2003) 125 LGERA 399. 73. Sherras v De Rutzen [1895] 1 QB 918 at 918. 74. Even today, courts sometimes can be judged to have imposed clearly inadequate penalties for environmental crime: see, for example, Jones v Glenorchy City Council (2006) 145 LGERA 76. 75. See Lipman, ‘Old Wine in New Bottles: Difficulties in the Application of General Principles of Criminal Law to Environmental Law’; Gunningham et al (eds), Environmental Crime, Proceedings of a Conference, Hobart 1993, Australian Institute of Criminology. 76. For a comparison of prosecutions brought by the Environment Protection Authorities in New South Wales and Victoria, see Hain and Cocklin, ‘The Effectiveness of the Courts in Achieving the Goals of Environment Protection Legislation’ (2001) 18 EPLJ 319 at 331 and following; see also Martin, ‘Trends in Environmental Prosecution’, National Environmental Law Review, Winter 2005 at 38. 77. See also the analysis of prosecutions brought in Queensland under the Environmental Protection Act 1994, in Briody and Prenzler, ‘The Enforcement of Environmental Protection Laws in Queensland: A Case of Regulatory Capture?’ (1998) 15 EPLJ 54; see also the reply to this article on behalf of the Department of Environment at (1998) 15 EPLJ 163. 78. See generally Stein, ‘The Role of the NSW Land and Environment Court in Environmental Crime’ in Gunningham et al (eds), Environmental Crime, Proceedings of a Conference, Hobart, 1993, Australian Institute of Criminology, p 78.

79. Although even in New South Wales, ‘minor’ environmental crime is often referred to local and district courts rather than the Land and Environment Court, which again raises questions about the adequacy of sentencing for environmental crimes prosecuted in these courts; see Smith, ‘What Price a Wedgetail Eagle? An Examination of Penalties Imposed for Harming Protected Species’ (2004) 21 EPLJ 445. On the other hand, the Land and Environment Court had to commute a sentence of four months’ imprisonment handed out by a local court for an offence involving the poisoning of birds: Betland v Environment Protection Authority [2010] NSWLEC 183. 80. On the position in Victoria, see Hain and Cocklin, ‘The Effectiveness of the Courts in Achieving the Goals of Environment Protection Legislation’ (2001) 18 EPLJ 319; Baird, ‘Environmental Prosecutions in Victoria’ (2002) 19 EPLJ 83, and for Western Australia, see Hartley, ‘Are Criminal Penalties the Most Effective Sanction for Offences Under Pt V of the Environmental Protection Act 1986 (WA)?’ (2004) 21 EPLJ 312. 81. Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189. 82. Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 (tree lopping to capture water views and increase the value of the property); Garrett v Williams (2006) 160 LGERA 115. 83. Garrett v Williams (2006) 160 LGERA 115. 84. Jones v Glenorchy City Council (2006) 145 LGERA 76. 85. Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189. 86. Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189. 87. Cole, ‘Creative Sentencing — Using the Sentencing Provisions of the South Australian Environment Protection Act to Greater Community Benefit’ (2008) 25 EPLJ 13 at 14. Statistical data for environmental prosecutions in Victoria and New South Wales are given in Hain and Cocklin, ‘The Effectiveness of the Courts in Achieving the Goals of Environment Protection Legislation’ (2001) 18 EPLJ 319, although this is likely now to be out of date in identifying contemporary trends. 88. See Baird, ‘Environmental Prosecutions in Victoria — Full Benefit of Amendments Limited by Prosecution Structure’ (2003) 19 EPLJ 83. 89. Environment, Resources and Development Court Act 1993 (SA) s 8. The Queensland Planning and Environment Court, also constituted by district court judges, only has a civil jurisdiction. 90. Environment, Resources and Development Court Act 1993 (SA) s 7(4). These jurisdictional ‘anomalies’ were commented on by the court itself in Circelli v Southcorp Wines Pty Ltd [2000] SAERDC 80 and Director of Public Prosecutions v Transadelaide [2004] SAERDC 92, although the jurisdictional limit for the court in those cases was $120,000 not the current $300,000. 91. ‘Operating an Environment Court: The Experience of the Land and Environment Court of New South Wales’ (2008) 25 EPLJ 385 at 389. 92. For an explanation of the database, see Judicial Commission of NSW Research ‘Monograph 32: Achieving Consistency and Transparency in Sentencing for Environmental Offences’. The variable characteristics are based on the objective and subjective factors described at 20.103 and following. 93. See, for example, Environment Protection Act 1970 (Vic) s 59; Environmental Protection Act 1986 (WA) s 114(1). 94. Sustainable Planning Act 2009 (Qld) s 597. 95. Protection of the Environment Operations Act 1997 (NSW) ss 217(2) and 218A. 96. See Chapter 21. 97. Protection of the Environment Operations Act 1997 (NSW) s 214(1).

98. Section 494. 99. Justices Act 1886 (Qld) s 5. 100. Environmental Protection Act 1994 (Qld) s 494(2). 101. Justices Act 1886 (Qld) s 5. 102. Sentencing Act 1991 (Vic) ss 109 and 112(2). 103. Environment Protection Act 1970 (Vic) s 59E. 104. See, for example, Protection of the Environment Operations Act 1997 (NSW) s 216(6) (‘prescribed offence’ includes tier 1 offences and offences relating to unlawful transport or storage of waste); see further Ch 5, Pts 5.2, 5.3 and ss 143 and 144; see also Environmental Protection Act 1994 (Qld) s 497. 105. See 20.4 and following. 106. See, for example, Department of Environment and Climate Change (NSW), EPA Prosecution Guidelines, 2004; EPA Victoria, Enforcement Policy, 2004; Department of Environment (WA), Enforcement and Prosecution Policy, 2004. 107. See 20.55 and following. 108. See, for example, Protection of the Environment Operations Act 1997 (NSW) Ch 7; Vegetation Management Act 1999 (Qld) Div 8 Pt 3; Environment Protection Act 1970 (Vic) s 55. 109. In Hardie Holdings Pty Ltd v Director-General Department of Natural Resources (2007) 151 LGERA 373, it was held that the power under the Native Vegetation Act 2003 (NSW) (NVA) s 36 to serve a notice requiring information and documents, did not have to specify the precise documents or information that were being sought, such a requirement would effectively frustrate the investigative power being conferred. The power for information gathering continues to be available for so long as there is a possibility of a contravention having occurred, but once a charge is laid, the power is spent; see also Director-General, Department of Planning v Epacris Pty Ltd (2006) 147 LGERA 372 (no power in the court to award the prosecutor a right of further inspection once the investigative power is spent). 110. Director-General, Department of Planning v Epacris Pty Ltd (2006) 147 LGERA 372. 111. Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water (No 2) [2009] NSWLEC 177. 112. Director-General of Department of Environment and Climate Change v Hudson [2009] NSWLEC 4. 113. For example, Environment Protection Act 1970 (Vic) s 69D; and see Environment Protection Authority v Hargraves [2002] NSWLEC 113; Environment Protection Authority v Mark Peters [2006] NSWLEC 465. 114. Environment Protection Act 1970 (Vic) s 62C; Protection of the Environment Operations Act 1997 (NSW) s 257. 115. See, for example, Protection of the Environment Operations Act 1997 (NSW) ss 261 and 262; Environmental Protection Act 1994 (Qld) s 490(7), (8); Environment Protection Act 1993 (SA) s 139(5); Environment Protection Act 1970 (Vic) s 59AB. 116. See, for example, Norvill v Stokes (2006) 153 LGERA 278, a prosecution for unlawfully clearing state protected land. The prosecution ultimately failed because of ambiguities and inconsistencies in the evidence as to whether the land that had been cleared was in effect state protected land; and whether the land had not in fact been cleared in accordance with a development consent. 117. (Unreported, LEC (NSW), 23 April 1993); see also Environment Protection Authority v Snowy Mountains Engineering Corp Ltd (1994) 83 LGERA 51. 118. See also Environment Protection Authority v Brown and Hatton Rural Pty Ltd (1992) 77 LGRA 383;

Environment Protection Authority v Aircare Narrabri Pty Ltd (1997) 99 LGERA 1. 119. For example, Protection of the Environment Operations Act 1997 (NSW) s 248; Environmental Protection Act 1994 (Qld) s 503; Environment Protection Act 1970 (Vic) s 66C; Environmental Protection Act 1986 (WA) s 115. 120. For example, Evidence Act 1995 (NSW) s 141(1). Where a statute creates an offence but then specifies an exemption, the onus is on the prosecution to prove the exemption does not apply: see Director-General of the Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242; but where the statute merely creates an exception or excuse, the onus rests on the accused to prove that his or her conduct fell within the exception: see Director-General of the Department of Land and Water Conservation v Pye [1998] NSWLEC 292. Legislation also generally places the burden on the accused to establish any statutory defence of acting under a licence or other authority, or ‘reasonable excuse’: see, for example, Protection of the Environment Operations Act 1997 (NSW) ss 121(1), 122 and 256(1). For the position where a defence of ‘honest and reasonable mistake’ is raised by the accused, see 20.76 and following. The necessity to establish beyond reasonable doubt facts that are adverse to the interests of the defendant, has also led the court to declare that it does not have the power to order joint conferencing and reporting of experts in criminal sentencing proceedings, without the consent of the defendant. Otherwise an injustice could readily result if the defendant’s experts were forced to confer and jointly confer with the prosecutor’s experts: see Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 3) [2010] NSWLEC 135. 121. For example, Protection of the Environment Operations Act 1997 (NSW) s 120. 122. See 20.40 and following. 123. See 20.48 and following. 124. In Manly Council v Leech [2015] NSWLEC 149, Biscoe J distinguished between environmental circumstance crime, where there does not necessarily have to be any consequence; and environmental crime of consequence (result offence), such as causing pollution. ‘In the context of an environmental crime of consequence, where principles of causation arise, “cause” has been interpreted broadly and potentially casts the liability net more widely.’ The authorities are reviewed in Kempsey Shire Council v Slade [2015] NSWLEC 135 at [24]–[43]. 125. See Alphacell Ltd v Woodward [1972] 2 All ER 475; Majury v Sunbeam Corp Ltd [1974] 1 NSWLR 659; Window v Phosphate Co-operative Co of Aust Ltd [1983] 2 VR 287. 126. See, for example, CPC (UK) Ltd v National Rivers Authority [1995] Env LR 131. 127. See also Majury v Sunbeam Corporation Ltd [1974] 1 NSWLR 659; Environment Protection Authority v Australian Iron and Steel Pty Ltd (No 2) (1993) 78 LGERA 373. 128. In Environment Protection Authority v Genkem Pty Ltd (1993) LGERA 47, it was held that a licence condition issued under the Pollution Control Act 1970 (NSW) s 17, which provided for the proper and efficient storage of materials, was within the power conferred by s 17d(1) of the Act to grant an application ‘subject to conditions’. 129. Contrast the earlier case of Impress (Worcester) Ltd v Rees [1971] 2 All ER 357. 130. National Rivers Authority v Yorkshire Water Service Ltd [1995] 1 All ER 225. 131. Environment Agency (Formerly National Rivers Authority) v Empress Car Company (Abertillery) Ltd [1999] 2 AC 22. 132. Environment Protection Authority v Dubbo City Council (1994) 82 LGERA 361 (malfunction caused by severe electrical storm that caused undiluted sewage to enter a river). 133. See, for example, Environment Protection Authority v Dubbo City Council (1994) 82 LGERA 361 (defendant fined $5000); see also Environment Protection Authority v Taylor Woodrow Pty Ltd (1997) 101 LGERA 226.

134. Environment Protection Act 1993 (SA) s 127. 135. Environment Protection Act 1993 (SA) ss 79, 80 and 82. 136. Environment Protection Act 1993 (SA) s 3. 137. For example, Environment Protection Act 1993 (SA) ss 103ZB and 119. 138. Protection of the Environment Operations Act 1997 (NSW) s 120; Dictionary ‘water pollution’. 139. The Commonwealth Criminal Code (set out in the schedule to the Criminal Code Act 1995 (Cth)) defines ‘intention’ (s 5(2)) in the following way: (1) A person has intention with respect to conduct if he or she means to engage in that conduct. (2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist. (3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events. 140. On the position in Queensland, see Kelleher, ‘Major Offences under the Environmental Protection Act 1994 (Qld)’ (1998) 15 EPLJ 264. 141. For further discussion of this, see Lipman and Bates, Pollution Law in Australia, LexisNexis Butterworths, Sydney, 2002. 142. For example, Environment Protection and Biodiversity Conservation Act 1999 (Ch) (EPBCA) s 18A (offences related to threatened species and ecological communities); Environment Protection Act 1997 (ACT) s 155; Waste Management and Pollution Control Act 1998 (NT) s 83; Environment Protection Act 1993 (SA) s 126; Environmental Management and Pollution Control Act 1994 (Tas) s 57. 143. Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715; Environment Protection Authority v Water Board (1993) 79 LGERA 103; Environment Protection Authority v Australian Iron and Steel Pty Ltd (No 2) (1993) 78 LGERA 373. 144. Canterbury City Council v Saad (2000) 112 LGERA 107. 145. Environment Protection Authority v Collex Pty Ltd (2001) 115 LGERA 337. 146. Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137; Environment Protection Authority v Hardt (2006) 148 LGERA 61. 147. Gatacre v Soil Conservation Service (NSW) (1992) 78 LGERA 379. 148. Director-General of the Department of Land and Water Conservation v Greentree (2003) 131 LGERA 234. 149. Hornsby Shire Council v Vitone Developments Pty Ltd (2003) 132 LGERA 122. 150. Chief Executive of the Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51. 151. Environment Protection Authority v N (1992) 26 NSWLR 352; Allen v United Carpet Mills Pty Ltd [1989] VR 323. 152. See, for example, Cooper v ICI Australia Operations Pty Ltd (1987) 64 LGRA 58; Environment Protection Authority v Water Board (1993) 79 LGERA 103; Environment Protection Authority v Australian Iron and Steel Pty Ltd (No 2) (1993) 78 LGERA 373. 153. See, for example, Marine Pollution Act 2012 (NSW) ss 18–25; 32–41; 48, 49; 56–59; 63–66 (this Act implements the terms of the International Convention for the Prevention of Pollution from Ships 1973, commonly referred to as ‘MARPOL’; see 15.115). 154. See Morrison v Peers (1995) 87 LGERA 39; Morrison v Valle (1995) 87 LGERA 278. 155. See R v Caltex Tanker Co (Aust) (unreported, County Court, Victoria, O’Shea J, 18 June 1993). For

analysis of this case and the position under similar legislation in Victoria, see Mosley, ‘Oil Spills — State and Federal Legislative Conundrums’ (1998) 15 EPLJ 212. 156. See, for example, Environment Protection Act 1993 (SA) s 126; Environment Protection Act 1997 (ACT) s 155. 157. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 196–196E. 158. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 211–211E. 159. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 229A–229C. 160. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 254 and 254A. 161. See 20.49 and following. 162. In relation to the phrase ‘cause pollution’, see the decision of the House of Lords in Alphacell Ltd v Woodward [1972] 2 All ER 475, cited with approval in the Queensland case of Tucker v Fraser [1974] Qd R 147, and applied by the New South Wales Supreme Court in Majury v Sunbeam Corporation. In Cooper v ICI Australia Operations Pty Ltd (1987) 64 LGRA 58 at 65–6, Hemmings J regarded it as ‘now settled’ that an offence of causing pollution under the Clean Waters Act 1970 (NSW) s 16 was one of strict liability. See also Environment Protection Authority v Water Board (1993) 79 LGERA 103; Environment Protection Authority v Australian Iron and Steel Pty Ltd (No 2) (1993) 78 LGERA 373. 163. Protection of the Environment Operations Act 1997 (NSW) ss 115–117. 164. See, for example, Chief Executive of the Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51. 165. Criminal Code Act 1995 (Cth) Sch Div 5. 166. ‘… in any case, civil or criminal, the state of mind of an individual (or of a body) can be proved by inference from what the person (or body) does or says or omits to do or say. The question whether a particular inference should be drawn as to a person’s or body’s state of mind should be resolved by a consideration of the whole of the relevant evidence … an inference that an act was done with a particular state of mind or lack of it may be drawn from the totality of twenty events, although each event standing alone may be possible of explanation with a state of mind otherwise. Circumstantial evidence is admitted not because it provides the ultimate inference contended for but because with other evidence it may support such inference’; per Moffit P in Parramatta City Council v Hale (1982) 47 LGRA 319 at [345-6]. 167. Environment Protection Authority v N (1992) 26 NSWLR 352. 168. Environment Protection Authority v Aircare Narrabri Pty Ltd (1997) 99 LGERA 1. 169. Environment Protection Authority v N (1992) 26 NSWLR 352. 170. Environment Protection Authority v N (1992) 26 NSWLR 352; see also Environment Protection Authority v Anning (1998) 100 LGERA 354. 171. Environment Protection Authority v N (1992) 26 NSWLR 352. It has been commented, however, that this is not the case in Victoria, where the courts have been reluctant to conclude that wilful blindness can constitute actual knowledge: see Hain and Cocklin, ‘The Effectiveness of the Courts in Achieving the Goals of Environment Protection Legislation’ (2001) 18 EPLJ 319 at 327. 172. R v Crabbe (1985) 156 CLR 464 at 469. 173. New South Wales Sugar Milling Co-op v Environmental Protection Authority (1992) 75 LGRA 320. 174. In relation to the term ‘wilful’, however, the Court of Criminal Appeal has held that the mental state of wilfulness applies to both the conduct and the result: see Environment Protection Authority v N (1992) 26 NSWLR 352. What this seems to mean in practice is that if the prosecutor charges the accused with wilful conduct, then this element must be proved for both conduct and

consequence; but a charge of negligence relates to foresight of the consequences of disposing of the waste, so that the offence can be proved simply by proof of negligence as to the consequences. 175. Environment Protection Authority v Anning (1998) 100 LGERA 354 per Lloyd J at 360; Environment Protection Authority v N (1992) 26 NSWLR 352. 176. Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433. 177. New South Wales Sugar Milling Co-op v Environmental Protection Authority (1992) 75 LGRA 320; Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433; Environment Protection Authority v Warringah Golf Club [2003] NSWLEC 140. 178. Environmental Protection Act 1986 (WA) s 49, for example, makes it clear that this is the standard that will apply. 179. Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433. 180. For example, Water Act 1992 (NT) s 16. 181. For example, Environmental Protection Act 1986 (WA) Pt V. 182. Per Lloyd J in Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 54; see also Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137; Blacktown City Council v Pace (2002) 121 LGERA 432. 183. Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337. 184. See Alphacell Ltd v Woodward, note 162 above. 185. See also Environment Protection Authority v Foxman Environmental Development Services [2015] NSWLEC 105. 186. Lomas v Peek [1947] 2 All ER 574 at 575; Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 54. 187. See also Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 103 LGERA 355. 188. This would seem to extend to the position where a known object that has been destroyed was not identified at the time of destruction as an Aboriginal object. 189. Wright & Romeyko v Corporation of City of West Torrens (1996) 91 LGERA 197 at 208. 190. Wright & Romeyko v Corporation of City of West Torrens (1996) 91 LGERA 197 at 208; Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137 at 151. 191. Wilkie v Blacktown City Council (2002) 121 LGERA 444. 192. McConnell Dowell Contractors (Aust) Pty Ltd v Environment Protection Authority (2000) 131 LGERA 234. 193. Protection of the Environment Operations Act 1997 (NSW) ss 115(1)(b) and 116(1)(b). 194. See 16.25 and following. 195. Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715; McConnell Dowell Contractors (Aust) Pty Ltd v Environment Protection Authority (2000) 131 LGERA 234; Director-General, Department of Land and Water Conservation v Greentree (2003) 131 LGERA 234. 196. See also Environment Protection Authority v Hopley (2003) 129 LGERA 329, where an employer was held vicariously liable for the negligence of a fork-lift truck driver whose load of chemicals polluted a nearby creek when his truck overturned and the drums ruptured; Environment Protection Authority v Rethmann Australia Environmental Services Pty Ltd (2003) 131 LGERA 422 (dangerous fumes being emitted from a tanker carrying liquid chemical waste). 197. This decision effectively overruled the contrary view expressed by Bignold J in State Pollution Control Commission v Blue Mountains City Council (No 2) (1991) 73 LGRA 337.

198. The employer does not need to have authorised the transgression nor be aware of it for principles of vicarious liability to apply: see, for example, Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 59. 199. Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 58–59 [277]. 200. This duty will be discharged by choosing an experienced and expert contractor: see, for example, Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1. 201. Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 59 [278], [280]; and Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262 [104] – 263 [106]; North Sydney Council v Moline (No 2) [2008] NSWLEC 169. 202. Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 59 [280], 61–62 [290]. In Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262 [102] Pearlman J said that this test ‘involves a right to direct and control a course of action, in circumstances where the right is capable of exercise and is, or is likely to be, effective. It relates to the manner in which the independent contractor undertakes the course of action, that is, the way in which the tasks are to be performed or how they are to be carried out’. 203. See Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1. 204. See the summary of such circumstances by Lloyd J in Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 58 and following. 205. Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715. For a more detailed discussion of the position in relation to states that have a Criminal Code, see Lipman and Bates, note 141 above, Ch 4. 206. See, for example, State Pollution Control Commission v Australian Iron & Steel Ltd (1992) 74 LGRA 387. 207. State Pollution Control Commission v Australian Iron & Steel Ltd (1992) 74 LGRA 387. 208. For a detailed analysis of this case, and vicarious liability for contractors generally, see Lipman, ‘Vicarious Liability for Independent Contractors’ (2000) 17 EPLJ 427; see also Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137; Environment Protection Authority v Munters Pty Ltd (1998) 98 LGERA 279; Baranov v Lane Cove Council [2001] NSWLEC 292. 209. Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240. 210. Environment Protection Act 1997 (ACT) s 146; Environmental Protection Act 1994 (Qld) s 492; Environment Protection Act 1993 (SA) s 127(1)(b); Native Vegetation Act 1991 (SA) s 38; Environmental Management and Pollution Control Act 1994 (Tas) s 58(1)(b). 211. Environment Protection Act 1997 (ACT) s 146(6); Environmental Protection Act 1994 (Qld) s 492(3); Environment Protection Act 1993 (SA) s 127(2); Environmental Management and Pollution Control Act 1994 (Tas) s 58(2). 212. Protection of the Environment Operations Act 1997 (NSW) s 257. 213. Environment Protection Act 1970 (Vic) s 63; Marine Pollution Act 1987 (NSW) s 18. 214. A corporation may include a municipal corporation or local council: see Garrett v Freeman (No 5); Garrett v Port Macquarie Hastings Council (2009) 164 LGERA 287. 215. Director-General, Dept of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009]

NSWLEC 232; Leichhardt Council v Geitonia Pty Ltd (No 6) [2015] NSWLEC 51 at [116]. 216. Protection of the Environment Operations Act 1997 (NSW) s 169(4). 217. See, for example, Chief Executive of the Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51. And see generally Lipman, ‘Vicarious Liability for Independent Contractors’ (2000) 17 EPLJ 427. 218. See Director-General, Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232 at [79], [82]–[83]; Environment Protection Authority v Foxman Environmental Development Services [2015] NSWLEC 105. 219. For example, Environment Protection Act 1993 (SA) s 127; Environmental Management and Pollution Control Act 1994 (Tas) s 58. 220. See, for example, Protection of the Environment Operations Act 1997 (NSW) s 169(4). 221. Criminal Code (Cth) ss 12.2 and 12.3. 222. Criminal Code (Cth) s 12.3(2). 223. Criminal Code (Cth) s 12.4. 224. For a more comprehensive comparison of the position in each state, see Howard, ‘Liability of Directors for Environmental Crime: The Anything-but-Level Playing Field in Australia’ (2000) 17 EPLJ 250. This article also gives some statistics for prosecutions of directors in New South Wales, Victoria and Queensland, with penalties imposed; see also Baird, ‘Liability of Directors and Managers for Corporate Environmental Offences — Recent Prosecutions’ (1999) 16 EPLJ 192. 225. For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 495 (‘executive officer’: s 493). In Garrett v Freeman (No 4) [2007] NSWLEC 389 and Garrett v Freeman (No 5) (2009) 164 LGERA 287 (sentencing), a director of infrastructure at a local council was convicted under of the National Parks and Wildlife Act 1974 (NSW) (NPWA) s 175B for committing wildlife offences as a person concerned in the management of a corporation. 226. For example, Hazardous Waste (Regulation of Exports and Imports) Act (Cth) s 59; Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) s 28; Protection of the Environment Operations Act 1997 (NSW) s 169; Environment Protection Act 1970 (Vic) s 66B(4); Environment Protection Act 1997 (ACT) s 147; Waste Management and Pollution Control Act 1998 (NT) s 91; Environmental Protection Act 1994 (Qld) s 492(2); Environment Protection Act 1993 (SA) s 129; Environmental Management and Pollution Control Act 1994 (Tas) s 60; Environment Protection Act 1970 (Vic) s 66B; Environmental Protection Act 1986 (WA) s 118(1). Note, however, that this cannot be read into a statute by implication. Unlike the Protection of the Environment Operations Act 1997 (NSW) s 169, which specifically addresses the liabilities of officers of the corporation, the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) does not so contemplate the notion of extending liability beyond the corporation itself: Botany Bay City Council v Ralansaab Pty Ltd [2010] NSWLEC 225. 227. Officers convicted in this way for offences committed by the corporation, however, are generally only liable to a fine but not imprisonment: see, for example, Environment Protection Act 1993 (SA) s 129(2). 228. For example, Protection of the Environment Operations Act 1997 (NSW) s 169(2). 229. Environment Protection Authority of New South Wales, Prosecution Guidelines, 2004. 230. For example, Environment Protection Authority v Perry (2004) 135 LGERA 431. 231. (Unreported, Court of Petty Sessions, WA, Michelides M, 9 March 1995). For commentary on this case, see Brunton, ‘Directors, Companies and Pollution in Western Australia’ (1995) 12 EPLJ 159. 232. Section 493. 233. Such prosecutions do not amount to double jeopardy (see 20.65), or duplicity, because the offences

are essentially different, one being directed to individual responsibility, the other to corporate responsibility; though at the sentencing stage the court naturally has to be careful that it does not effectively punish the defendant twice over. The essence of duplicity is that a person is charged in one count with the commission of two or more offences: see Bentley v BGP Properties Pty Ltd (2005) 139 LGERA 449. 234. Carmody v Brancourts Nominees Pty Ltd (2002) 124 LGERA 136. 235. Protection of the Environment Operations Act 1997 (NSW) s 144. 236. See Wakool Shire Council v Garrision Cattle Feeders Pty Ltd [2010] NSWLEC 199. 237. Mouawad v The Hills Shire Council [2013] NSWLEC 165. 238. For a successful application of this principle in relation to an individual, see Wyong Shire Council v Hughes (2000) 106 LGERA 228. 239. (1991) 25 NSWLR 118. This court, however, had considered that the effect of s 29(2)(a) was to abrogate the privilege as it applied to corporations so long as the section was used for a proper purpose; and it would be an improper exercise of power if that section were used for the sole purpose of gathering evidence for use in criminal proceedings. The High Court, however, held that the power under s 29(2)(a) was unlimited in its operation and could be used to obtain evidence to support a prosecution. Nor was the power spent once proceedings had commenced. 240. See also Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96. 241. See generally Puls, ‘Corporate Privilege — Do Directors Really Have a Right to Silence Since Caltex and Abbco Iceworks?’ (1996) 13 EPLJ 364. 242. Grant v Downs (1976) 135 CLR 674. For a comprehensive analysis of this doctrine, see McDonald, ‘Corporate Confidentiality after Caltex: How Safe is Your Audit?’ (1994) 11 EPLJ 193. 243. Environment Protection Act 1997 (ACT) s 74; Waste Management and Pollution Control Act 1998 (NT) ss 4(1) and 47; Protection of the Environment Operations Act 1997 (NSW) ss 4 and 172; Environmental Protection Act 1994 (Qld) ss 321–323; Environment Protection Act 1993 (SA) s 52(2); Environmental Management and Pollution Control Act 1994 (Tas) s 3(1); Environment Protection Act 1970 (Vic) s 4(1); Environmental Protection Act 1986 (WA) s 62A(1)(o), (p). 244. For example, Protection of the Environment Operations Act 1997 (NSW) ss 181–183. 245. Environment Protection Act 1993 (SA) s 124(1). 246. For example, Protection of the Environment Operations Act 1997 (NSW) s 118. 247. In the Criminal Code (Cth), due diligence alone will suffice: see ss 12.3 and 12.5. Due diligence is not defined by the Code, but some indication of how an absence of due diligence may be indicated is given. 248. It was said in Environment Protection Authority v Australian Iron and Steel Pty Ltd (No 2) (1993) 78 LGERA 373, that if due diligence could be established as an extension to the defence of honest and reasonable mistake, then where there is evidence pointing to due diligence, to establish guilt would involve the prosecution being required to negative the defence beyond reasonable doubt without having the relevant facts and knowledge to do so. This practically requires the defence to prove something akin to mens rea. This is contrary to the view in Canada: see R v City of Sault Ste Marie (1978) 85 DLR (3d) 161. 249. He Kaw Teh v R (1985) 157 CLR 523; Environment Protection Authority v Australian Iron and Steel Pty Ltd (No 2) (1993) 78 LGERA 373. For discussion of the defence of ‘honest and reasonable mistake’, see 20.76. 250. Minister Administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim [2005] NSWLEC 92 at [176]. 251. A director or other officer of a corporation must exercise their powers and discharge their duties

with the degree of care and diligence that a reasonable person would exercise if they were a director or officer of a corporation in the corporation’s circumstances; and occupied the office held by, and had the same responsibilities within the corporation as, the director or officer: Corporations Act 2001 (Cth) s 180. See also s 731 (due diligence defence for misleading or deceptive statements in prospectuses). 252. See Christensen, ‘Criminal Liability of Directors and the Role of Due Diligence in Their Exculpation’ [1993] Companies and Securities LJ 340. 253. Although the Environment Protection Act 1997 (ACT) s 153 attempts to codify the criteria for establishing the defence. 254. Per Hunt CJ in Environment Protection Authority v N (1992) 26 NSWLR 352, because the defence assumes that the prosecution has made out its case that the defendant wilfully or negligently disposed of the waste. In State Pollution Control Commission v Hunt (1990) 72 LGRA 316, the defendant argued that he had only been complying with orders from a supervising employee. Bignold J held that this did not exculpate the defendant but was a factor to be taken into account in sentencing. 255. This will be a matter of fact and degree. In Environment Protection Authority v Taylor Woodrow (Aust) Pty Ltd (1997) 101 LGERA 226 and Minister Administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim [2005] NSWLEC 92, the defence failed because the accused had retained a sufficient degree of control, despite contractual arrangements giving possession of the site to the contractor. 256. State Pollution Control Commission v Blue Mountains City Council (1991) 72 LGRA 345. 257. State Pollution Control Commission v Blue Mountains City Council (1991) 72 LGRA 345 (employee of a contractor); Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 (employees of a subcontractor). 258. See Environment Protection Authority v N (1992) 26 NSWLR 352. 259. For example, merely diverting from normal operational procedure is unlikely to relieve the employer of its vicarious responsibilities for the actions of its employees: Environment Protection Authority (EPA) v State of New South Wales (Dept of Environment, Climate Change and Water) [2010] NSWLEC 67. 260. At 354. 261. Environment Protection Authority v Ampol Ltd [1995] NSWLEC 16. 262. On environmental management systems (EMSs), see Lipman and Bates, note 141 above. 263. See also Environment Protection Act 1993 (SA) s 124(3). 264. Criminal Code (Cth) s 12.5(2). 265. (Unreported, LEC (NSW), 15 April 1994); see also Environment Protection Authority v Shell Refining (Aust) Pty Ltd (1994) 82 LGERA 298; Environment Protection Authority v Genkem Pty Ltd (1993) 79 LGERA 47. 266. Australian Fisheries Management Authority v Su (2009) 176 FCR 95 at [23]. 267. This derives from the High Court decisions in Proudman v Dayman (1941) 67 CLR 536, and He Kaw Teh v R (1985) 157 CLR 523. 268. Criminal Code Act 1995 (Cth) Sch, Div 9. 269. Criminal Code Act 1995 (Cth) Sch, Div 10. 270. Qld s 24; Tas s 14; WA s 24. 271. Qld s 23; Tas s 13; WA s 23. 272. The extent to which defences under the Criminal Code (Qld) may be excluded by the

Environmental Protection Act 1994 (Qld) is explored by Sibley, The Criminal Offence and Evidence Provisions, The Environmental Protection Act 1994: A Contemporary Critique and Analysis, Faculty of Law, QUT, 1994. See also McDonald, ‘Criminal Enforcement of Environmental Noncompliance’ [1992] 4 AELN 27 at 34; Christensen, ‘Criminal Liability of Directors and the Role of Due Diligence in Their Exculpation’ [1993] Companies and Securities LJ 340; Tucker v Fraser [1974] Qd R 147. 273. See Pollution of Waters by Oil Act 1973 (Qld) s 9, displacing the Criminal Code (Qld) s 23, but providing a defence in s 12; Tucker v Fraser, note 258 above. Thomson, ‘Criminal and Civil Consequences of Corporate Environmental Policies in Western Australia’ (1992) 9 EPLJ 111, concludes that offences under the Environmental Protection Act 1986 (WA) Pt V, will also be deemed to invoke strict rather than absolute liability. In Tasmania, the position seems to be that the common law will only be displaced with respect to ‘parallel offences’, that is, those that are contained both in environmental legislation and in the Code. Since environmental offences are not contained in the Code, the principles enunciated in He Kaw Teh will continue to apply. 274. Environment Protection Authority v Taylor (1995) 130 LGERA 144. 275. See State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721; Environment Protection Authority v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289; Austral Tee and Stump Services Pty Ltd v Gould [2008] SASC 230; Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd [2012] NSWLEC 45. 276. He Kaw Teh v R (1985) 157 CLR 523 at 575. 277. See, for example, Environmental and Earth Sciences Pty Ltd v Environment Protection Authority (1999) 103 LGERA 434; Holroyd City Council v Skyton Developments Pty Ltd (2002) 119 LGERA 225; Environment Protection Authority v Brazel [2002] NSWLEC 7; Environment Protection Authority v Hardt (2006) 148 LGERA 61; Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd [2012] NSWLEC 45. 278. See also Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd [2012] NSWLEC 45. 279. Allen v United Carpet Mills Pty Ltd [1989] VR 323. 280. See also Environment Protection Authority v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289; Willoughby City Council v Revelas (2004) 140 LGERA 348; Environment Protection Authority v Hardt (2006) 148 LGERA 61. 281. For a note on this case, see Gullett, ‘Relying on Fishy Advice’ (2004) 21 EPLJ 245; see also Environment Protection Authority v Fletcher (2001) 114 LGERA 187. 282. For example, Waste Management and Pollution Control Act 1998 (NT) s 84; Protection of the Environment Operations Act 1997 (NSW) ss 121 and 122; Environmental Protection Act 1994 (Qld) s 436; Environment Protection Act 1993 (SA) s 84; Environmental Management and Pollution Control Act 1994 (Tas) s 55A; Environmental Protection Act 1986 (WA) ss 74, 74A and 74B. See also Electricity Commission (NSW) v Environment Protection Authority (1992) 28 NSWLR 494; Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502. The prosecution bears the onus of proving that the defendant’s conduct amounted to a breach of the licence: Environment Protection Authority v Brown and Hatton Rural Pty Ltd (1992) 77 LGRA 383; see also Gard v Pivot Aquaculture (2003) 131 LGERA 197. 283. See Environmental Protection Act 1986 (WA) s 74(1) (defence to a charge of causing environmental harm that the offence occurred for the purpose of preventing danger to human life or health or irreversible damage to a significant portion of the environment); Environment Protection Act 1997 (ACT) s 154; Environment Protection Act 1970 (Vic) s 30B; Environmental Protection Act 1986 (WA) s 75. 284. Section 124(3). On ‘practicable means’ to minimise air pollution, see Environment Protection Authority v Unomedical Pty Ltd (No 3) [2010] NSWLEC 198 at [209]: ‘it follows that the nature of

the risk, the cause of the risk, the state of the scientific and engineering knowledge and learning at the relevant time and the means by which the air pollution could have been prevented or minimised, all form part of the assessment of whether Unomedical took “such practicable means” as may be necessary to prevent or minimise air pollution …’. 285. Austral Tee and Stump Services Pty Ltd v Gould [2008] SASC 230. 286. Ostrowski v Palmer [2004] HCA 30; Environment Protection Authority v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289. 287. Garrett v Freeman (No 2) (2006) 145 LGERA 459. For examples of other such provisions and discussion of such exemptions in a civil context, see 3.39 and following. 288. R v Ryan Benjamin Castle (Bone J, Local Court, Moruya, 8 July 2011). 289. See State Pollution Control Commission v Broken Hill Pty Co Ltd (No 1) (1991) 74 LGRA 351 (furnace supervisor who committed the offence did not represent the mind and will of the company). Legislation that attributes the mental state of an officer, employee or agent to the corporation may provide the corporation with a defence if, for example, an employee has exercised due diligence. Presumably this absence of fault would be attributable to the corporation. 290. Criminal Code (Cth) s 12.5; and on due diligence, see 20.71. 291. For example, Environmental Protection Act 1986 (WA) s 74(1)(a). 292. See also Environmental Protection Act 1994 (Qld) s 493(4)(b); Environment Protection Act 1970 (Vic) s 66B(1A)(b); Environmental Protection Act 1987 (WA) s 118(1)(b)(i). 293. See also Environment Protection Act 1997 (ACT) ss 147(2)(a) and 153(1); Waste Management and Pollution Control Act 1998 (NT) s 91(2)(d); Environmental Protection Act 1994 (Qld) s 493(4)(a); Environment Protection Act 1993 (SA) ss 124(1) and 129(1)(a); Environmental Management and Pollution Control Act 1994 (Tas) ss 55(1) and 60(1)(a); Environment Protection Act 1970 (Vic) s 66B(1A)(c). 294. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 494 and 495. 295. Environmental Protection Act 1994 (Qld) s 493(4)(a). 296. R v Schembera [2008] QCA 266. 297. See Howard, ‘Liability of Directors for Environmental Crime: the Anything-but-Level Playing Field in Australia’ (2000) 17 EPLJ 250. 298. See 20.103 and following. 299. Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A; and see, for example, Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110. See also Preston, ‘Principled Sentencing for Environmental Offences — Part 1: Purposes of Sentencing’ (2007) 31 Crim LJ 91; Preston, ‘Principled Sentencing for Environmental Offences — Part 2: Sentencing Considerations and Options’ (2007) 31 Crim LJ 142. An environmental crime sentencing database has now been established in New South Wales: see Preston, ‘Establishment of an Environmental Crime Sentencing Database in NSW’ (2008) 32 Crim LJ 214; Preston, ‘A Judge’s Perspective on Using Sentencing Databases’ (2010) 9 The Judicial Review 421. 300. Environment Protection Authority v Orica Australia Pty Ltd [2014] NSWLEC 103 (for example, reducing pollution in order to prevent harm to human safety and the environment). 301. Bankstown City Council v Hanna [2014] NSWLEC 152. 302. See Environment Protection Authority v Ross [2009] NSWLEC 36 at [72]; Chief Executive of the Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [46]; Newcastle Port Corporation v RN Dredging BV [2013] NSWLEC 217 at [62]. 303. Environment Protection Authority v Shannongrove Pty Ltd (No 2) [2012] NSWLEC 202.

304. For example, National Parks and Wildlife Act 1994 (NSW) s 194; Crimes (Sentencing Procedure) Act 1999 (NSW); and see Penrith City Council v Re-Gen Industries Pty Ltd (2000) 107 LGERA 331; Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185. The Crimes Act 1900 (NSW) s 556A also allows a court to dismiss a charge or discharge an offender conditionally on a recognisance of good behaviour, where an offence has been proven but extenuating circumstances make it appropriate not to inflict punishment. This plea is not often successful in environmental litigation, but has occasionally succeeded: see, for example, Morrison v Peers (1995) 87 LGERA 39; see also Sentencing Act 1991 (Vic) ss 7 and 76. 305. For example, monitoring; Environment Protection Authority v Boral Resources (NSW) Pty Ltd (2002) 123 LGERA 279. 306. See, for example, Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 76 LGRA 67; Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349; Environment Protection Authority v Gosford City Council (1997) 95 LGERA 338; Environment Protection Authority v Vicary Corporation Pty Ltd (1997) 96 LGERA 46; Environment Protection Authority v Taylor Woodrow (Australia) Pty Ltd (No 2) (1997) 97 LGERA 368; Environment Protection Authority v Ampol Ltd (1995) 85 LGERA 443; Environment Protection Authority v Brir Pty Ltd (1995) 85 LGERA 450; Environment Protection Authority v Sydney Water Corporation Ltd (1999) 102 LGERA 232; Environment Protection Authority v Aaron Plant Hire and Earthmoving Pty Ltd (2000) 108 LGERA 300; Environment Protection Authority v Great Southern Energy (1999) 110 LGERA 254. 307. See, for example, Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185. 308. See also Environment Protection Authority v BHP (AIS) Pty Ltd (1996) 89 LGERA 358; Environment Protection Authority v Middle Harbour Constructions Pty Ltd [2002] NSWCCA 123. 309. Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 367 per Badgery-Parker J. 310. Environment Protection Authority v Warringah Golf Club Ltd (No 2) (2003) 129 LGERA 211. 311. Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299. The mental state of the defendant may be relevant to considerations of general deterrence; see Environment Protection Authority v Alcobell Pty Ltd, Environment Protection Authority [2015] NSWLEC 123 at [92–97]. See also Chappell and Norberry, ‘Deterring Polluters: the Search for Effective Strategies’ (1990) 13 UNSWLJ 97; Silberman, ‘Does Environmental Deterrence Work? Evidence and Experience Say Yes But We Need to Understand How and Why’ (2000) 30 Environmental Law Reporter 10523; Ogus and Abbott, ‘Sanctions for Pollution: Do We Have the Right Regime?’ (2002) 14(3) J Envtl Law 283; Abbott, ‘The Regulatory Enforcement of Pollution Control Laws: The Australian Experience’ (2005) 17 J Envtl Law 161. 312. Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Director of Public Prosecutions v Transadelaide [2004] SAERDC 92. 313. See also Dal Piva v Jakobovich [2002] SASC 209; Penrith City Council v Re-Gen Industries Pty Ltd (2000) 107 LGERA 331 (removal of 240 trees in breach of development controls described as ‘not trivial’ by the court); Ryde City Council v Calleija (1998) 99 LGERA 360; Director-General Land and Water Conservation v Rial (1998) 99 LGERA 130. In order to interfere with the penalty imposed by a magistrate, however, the court must be satisfied that the penalties are ‘manifestly inadequate’; for example, see Hemming v Droulias (2000) 107 LGERA 354, in which the court refused to interfere with a fine of $858 for unlawfully taking calamari from state waters, because the fine was within the range open to the magistrate. 314. Newcastle Port Corporation v RN Dredging BV [2013] NSWLEC 217 at [69]; see also Environment Protection Authority v Truegain Pty Ltd (No 4) [2014] NSWLEC 179.

315. Environment Protection Authority v Gardner (unreported, LEC (NSW), Lloyd J, 14 August and 7 November 1997). For an analysis of this case, see Lipman, ‘Polluter Pays for Environmental Crime’ (1998) 15 EPLJ 3. 316. See, for example, the Crimes (Sentencing Procedure) Act 1999 (NSW) s 5; Sentencing Act 1991 (Vic) s 5(4); Criminal Law (Sentencing) Act 1988 (SA) s 11(1)(a)(iv). 317. District Court of Queensland, 17 December 2004. The full text of the judgment is not available online; for a résumé of the facts, see . 318. Environment Protection Authority (EPA) v State of New South Wales (Dept of Environment, Climate Change and Water) [2010] NSWLEC 67. 319. See also Environment Protection Authority v Tenterfield Shire Council (2000) 112 LGERA 173; Environment Protection Authority v Integral Energy Australia Pty Ltd (2006) 146 LGERA 140. 320. Environment Protection Authority v Mid Coast County Council (2003) 136 LGERA 233; Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; Environment Protection Authority v Port Stephens Council [2011] NSWLEC 209. 321. Per Bignold J in Environment Protection Authority v Softwood Holdings Ltd (2000) 110 LGERA 87; see also Environment Protection Authority v Norco Co-operative Ltd (2000) 108 LGERA 137; Environment Protection Authority v Port Kembla Copper Pty Ltd (2001) 115 LGERA 391; Environment Protection Authority v Collex Pty Ltd (2001) 115 LGERA 337; Environment Protection Authority v Hochtief AG [2006] NSWLEC 200; Harrison v Baring (No 2) [2012] NSWLEC 145 at [52]–[54] and [68]. 322. See also Environment Protection Authority v BlueScope Steel (AIS) Pty Ltd [2004] NSWLEC 400; Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103 at [106–111]. 323. Muldrock v R [2011] HCA 39. 324. Byron Shire Council v Fletcher (2005) 143 LGERA 155. 325. Chief Executive of the Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 at [40]; Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185 at [39]; Environment Protection Authority v Orica Australia Pty Ltd [2014] NSWLEC 103. 326. R v Carroll [2008] NSWCCA 218; Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273. 327. R v Moore [2001] QCA 431; Environment Protection Authority v Integral Energy Australia Pty Ltd (2006) 146 LGERA 140. Evidence of actual environmental harm may aggravate the offence: Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234. Also, the fact that remediation is readily possible and practically achievable is important in assessing the ultimate seriousness of environmental harm. Harm that is short term and capable of being remedied will be regarded as less serious; Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185 at [72]. See also Environment Protection Authority v Orica Australia Pty Ltd [2014] NSWLEC 103 (disturbed nature of receiving waters not a mitigating factor but is relevant to assessment of harm). 328. Garrett v Williams (2006) 160 LGERA 115; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278. 329. See Plath v Rawson [2009] NSWLEC 178 at [48] per Preston CJ; see also Environment Protection Authority v Unomedical Pty Ltd (No 4) [2011] NSWLEC 131; Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119.

330. Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234. 331. R v Dempsey [2002] QCA 45; Garrett v Williams (2006) 160 LGERA 115; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; Brinkworth v Fischer [2008] SAERDC 33. 332. Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; including to what extent the defendant could have foreseen the offence committed by an employee: Environment Protection Authority (EPA) v State of New South Wales (Dept of Environment, Climate Change and Water) [2010] NSWLEC 67. 333. Environment Protection Authority v Tyco Water Pty Ltd (2005) 142 LGERA 241. 334. Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273. 335. Garrett v Williams (2006) 160 LGERA 115; see also ResourceCo Pty Ltd v Harvey [2007] SASC 38. 336. Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; Bankstown City Council v Hanna [2014] NSWLEC 152. 337. Garrett v Williams (2006) 160 LGERA 115; Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185. 338. Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299. 339. See Plath v Rawson [2009] NSWLEC 178 at [140] per Preston CJ; see also Environment Protection Authority v Unomedical Pty Ltd (No 4) [2011] NSWLEC 131; Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119. 340. Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273; Garrett v Williams (2006) 160 LGERA 115. See also Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3). 341. Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273. Though the ability of an offender to pay the fine imposed may ‘trump’ considerations of both consistency and proportionality in sentencing: Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114. 342. Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [44]; Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103 at [87]; Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185 at [40]. 343. See Filipowski v Thorneloe (2000) 112 LGERA 184; Environment Protection Authority v Johnson and Johnson Pacific Pty Ltd (2001) 114 LGERA 169; Filipowski v Terminals Pty Ltd (1999) 105 LGERA 166; Environment Protection Authority v Ramsey Food Processing Pty Ltd (2003) 125 LGERA 369; Environment Protection Authority v Le Dome Pty Ltd (2002) 125 LGERA 121. 344. Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 (tree lopping). 345. Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234. Whether the loss or damage was ‘substantial’ is an aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(g). 346. Environment Protection Authority v Gardner [1997] NSWLEC 212 (health risks from sewage pollution); Environment Protection Authority v Hochtief [2006] NSWLEC 200 (interference with amenity of residents due to noise pollution). 347. Harrison v Harris [2013] NSWLEC 105. 348. A plea of guilty will usually result in the penalty being reduced by around 25 per cent; see, for example, Bankstown City Council v Hanna [2014] NSWLEC 152. In Environment Protection Authority v Ecolab (2002) 122 LGERA 269, the court stated that an early plea of guilty was of

‘utilitarian value’ and that would normally entitle the defendant to a discount. See also Environment Protection Authority v Hochtief AG [2006] NSWLEC 200; Pallaras v Downer EDI Works Pty Ltd [2008] SAERDC 72. 349. Environment Protection Authority v Orica Australia Pty Ltd [2014] NSWLEC 103. 350. R v Schembera [2008] QCA 266. 351. See, for example, Council of Camden v Tax (2004) 137 LGERA 368; Circelli v Agnidla Pty Ltd [2008] SAERDC 34. 352. Environment Protection Authority v Rethmann Australia Environmental Services Pty Ltd (2003) 131 LGERA 422; Connell v Santos NSW Pty Ltd [2014] NSWLEC 1. More than a plea of guilty is generally necessary to demonstrate contrition; Environmental Protection Authority v Hanna [2010] NSWLEC 98; Burwood Council v Doueihi [2013] NSWLEC 196. To allow full weight to be given to this factor, the defendant must indicate acceptance of responsibility by being prepared to undertake remedial action, as well as express genuine remorse for the harm caused; see Environment Protection Authority v Trugain Pty Ltd (No 4) [2014] NSWLEC 179. 353. For example, see Morrison v Che Mat (1997) 95 LGERA 213; Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273; Environment Protection Authority v Orica Australia Pty Ltd [2014] NSWLEC 103. 354. See Environment Protection Authority v Great Southern Energy (1999) 110 LGERA 254; Environment Protection Authority v Pioneer Road Services Pty Ltd (1995) 86 LGERA 52; Mulhern’s Waste Oil Removal Pty Ltd v Circelli [2009] SASC 353. 355. See Director-General of the Department of Land and Water Conservation v Orlando Farms Pty Ltd (agreement with the regulator to forgo agricultural production on land at considerable expense to the landowner, following prosecution for unlawful clearing of native vegetation); see also DirectorGeneral Land and Water Conservation v Rial (1998) 99 LGERA 130. 356. Garrett v Freeman (No 5) (2009) 164 LGERA 287. 357. In Environment Protection Authority v Hunter (2003) 124 LGERA 73, a maximum discount of 35 per cent was applied for this reason. 358. Environment Protection Authority v Barnes [2006] NSWCCA 246; Environment Protection Authority v BMG Environmental Group Pty Ltd [2012] NSWLEC 69; Mouawad v The Hills Shire Council [2013] NSWLEC 165; Simpson v Office of Environment and Heritage [2014] NSWLEC 34. 359. Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; Environment Protection Authority v Hochtief AG [2007] NSWLEC 177; Environment Protection Authority v Orica Australia Pty Ltd [2014] NSWLEC 103. Pollution can occur incrementally and each pollution incident degrades the environment even more: Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114. 360. See also Newcastle City Council v Pepperwood Ridge Pty Ltd (2004) 132 LGERA 388 (fine of $80,000 and a discount of 15 per cent for offences involving removal of trees in breach of a council tree preservation order). 361. Holroyd City Council v Abouantoun t/as AKA Demolition and Tipping (2003) 140 LGERA 250. 362. Environment Protection Authority v Tyco Water Pty Ltd (2005) 142 LGERA 241 at [57] per Bignold J. 363. Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185. 364. Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; Garrett v Williams (2006) 160 LGERA 115; Hardt v Environment Protection Authority (2007) 156 LGERA 337; Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695; Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273; Director-General, Department of

Environment and Climate Change v Rae (2009) 168 LGERA 121; Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185. 365. Resourceco Pty Ltd v Harvey (2006) 154 LGERA 37. 366. Environment Protection Authority v Fulton Hogan Pty Ltd (2008) 163 LGERA 345. 367. Kari and Ghossayn Pty Ltd v Sutherland Shire Council (2006) 150 LGERA 231; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189. 368. Harris v Harrison [2014] NSWCCA 84. 369. This is an option available to the court under, for example, the Crimes (Sentencing Procedure) Act 1999 (NSW) s 10; Criminal Law (Sentencing) Act 1998 (SA) s 16; and see, for example, Thorneloe v Filipowski (2001) 116 LGERA 56; Filipowski v Schiffsbeteiligungsges mbh & Co KG; Filipowski v Kleemann (2004) 134 LGERA 48; Filipowski v Dayton Corporation (2004) 138 LGERA 150; Tatarelli v Cicolella [2007] SASC 265; Circelli v Agnidla Pty Ltd [2008] SAERDC 34; City of West Torrens v Maria Kyros [2009] SAERDC 13 May 2009. 370. See, for example, Sidhom v Robinson (2007) 154 LGERA 169. See also Taylor v Lanyon [2006] QDC 321. 371. Sidhom v Robinson (2007) 154 LGERA 169. 372. Filipowski v Island Maritime Ltd (2006) 153 LGERA 1 (the owners, who had a previous conviction, were sentenced but the court did not record a conviction against the captain); see also Webb v Chung [2002] NSWLEC 135; Camden Council v Runko (2006) 147 LGERA 214. 373. Environment Protection Authority v Laison [2015] NSWLEC 89 at [39–44]. See also Environment Protection Authority v Ashmore [2014] NSWLEC 136. 374. See also Environment Protection Authority v Norco Co-Operative Ltd (2000) 108 LGERA 137; R v Moore [2001] QCA 431. 375. Circelli v Mulhern’s Waste Oil Removal [2009] SAERDC 17 at [71]. The totality principle does not strictly apply where the offences are separate and against different defendants (for example, a corporation and its director). Where the two offences both arise from one incident, and where the director is the sole director of the corporation, then the court ought to adjust the monetary penalties to reflect the close connection of the two offences: Cessnock City Council v Quintaz Pty Ltd; Cessnock City Council v McCudden [2010] NSWLEC 3. 376. Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; see also Environment Protection Authority v Orica Australia Pty Ltd [2014] NSWLEC 103. 377. See Chief Executive of the Office of Environment and Heritage v Lani [2012] NSWLEC 115 at [62– 63]; Connell v Santos NSW Pty Ltd [2014] NSWLEC 1 at [153]. 378. Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Circelli v Mulhern’s Waste Oil Removal [2009] SAERDC 17. 379. See also Bankstown City Council v Hanna [2014] NSWLEC 152. 380. See also Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No 2) [2011] NSWLEC 149. 381. See Department of Environment and Climate Change (NSW), Guideline for Seeking Environmental Court Orders; Environment Protection Authority (Victoria), Enforcement Policy; Environment Protection Authority (SA), EPA Guidelines for Compliance and Enforcement of the Environment Protection Act 1993. 382. For example, Fines Act 1996 (NSW) s 6; Environment Protection Authority v Hunter (2003) 124 LGERA 73; Garrett v Freeman (No 5) (2009) 164 LGERA 287. 383. Abbot, ‘The Enforcement of Pollution Control Laws in England and Wales: A Case for Reform?’ (2005) 22 EPLJ 68 at 78, states that ‘England and Wales are some way behind the Australian system’

in this regard. 384. Environment Protection Authority v Orica Australia Pty Ltd [2014] NSWLEC 103. 385. See, for example, Protection of the Environment Operations Act 1997 (NSW) ss 245, 246, 247, 249 and 250; Environment Protection Act 1970 (Vic) s 67AC; Environment Protection Act 1993 (SA) s 133. See also Baird, ‘Environmental Prosecutions in Victoria — Full Benefit of Amendments Limited by Prosecution Structure’ (2003) 19 EPLJ 83; Martin, ‘Trends in Environmental Prosecution’, National Environmental Law Review, Winter 2005 at 38; Cole, ‘Creative Sentencing — Using the Sentencing Provisions of the South Australian Environment Protection Act to Greater Community Benefit’ (2008) 25 EPLJ 13. 386. See, for example, Environment Protection Authority v Pannowitz [2005] NSWLEC 175; Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65; and Fisse, ‘The Use of Publicity as a Criminal Sanction Against Business Corporations’ (1971–72) 8 MULR 107; Chappell and Norberry, ‘Deterring Polluters: The Search for Effective Strategies’ (1990) 13 UNSWLJ 97. 387. Per Preston CJ in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 at [242]. 388. Environment Protection Authority v Shoalhaven Starches Pty Ltd [2006] NSWLEC 685; Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 2) [2010] NSWLEC 175. 389. For example, Environment Protection Authority v Warringah Golf Club (No 2) (2003) 129 LGERA 211; Environment Protection Authority v Waight (No 3) [2001] NSWLEC 126; Council of Camden v Runko [2006] NSWLEC 486. 390. Environment Protection Authority v Warringah Golf Club (No 2) (2003) 129 LGERA 211; Environment Protection Authority v Coggins (2003) 126 LGERA 219; Environment Protection Authority v Obaid [2005] NWLEC 171; Environment Protection Authority v Pal [2009] NSWLEC 35. 391. The New South Wales Land and Environment Court has tended to use this provision as an alternative, rather than in addition, to other penalties. For example, in Environment Protection Authority v Coggins (2003) 126 LGERA 219 the defendant was sentenced to 250 hours of community service for offences relating to water pollution; and in Environment Protection Authority v Pal (No 2) [2009] NSWLEC 60, 450 hours for offences of unlawfully disposing of waste. 392. See, for example, Environment Protection Authority v Byron Shire Council [2002] NSWLEC 128; [2003] NSWLEC 207; Environment Protection Authority v Goulburn Wool Scour [2005] NSWLEC 206; Environment Protection Authority v Arenco Pty Ltd [2006] NSWLEC 244 ($26,000 towards sediment and erosion control works at a derelict mine site); Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211 ($105,000 to Lake Macquarie City Council, for its Ecosystem Enhancement Operations Program); Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255 (penalty of $60,000 to contribute towards a program of restoring the banks of the Castlereagh river); Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103 ($70,000 contribution to the Hunter River Health Monitoring Program to determine the cumulative impacts of heavy industry on the health of the Hunter River). 393. For example, in Environment Protection Authority v White (1996) 92 LGERA 264, where the defendant was convicted of negligently disposing of contaminated waste, he was sentenced to 400 hours of community service, fined $25,000, and ordered to pay $11,000 in costs, and more than $18,500 in rectification for removal and disposal of the contaminated soil. 394. See Preston, ‘The Use of Restorative Justice for Environmental Crime’. Available at March 2011>.

395. See Hamilton, ‘Restorative Justice Intervention in an Environmental Law Context: Garrett v Williams, Prosecutions under the Resource Management Act 1991 (NZ), and Beyond’ (2008) 25 EPLJ 263. In Plath v O’Neill [2007] NSWLEC 553, a case involving prosecution under the same section as Garrett v Williams, Biscoe J considered that, in the light of the facts, a restorative justice conference was not appropriate in that case. 396. The New South Wales government has subsequently amended the legislation to impose maximum penalties of between 2500 and 10,000 penalty units for harming or desecrating an object that the person knows is an Aboriginal object; and 500 to 2000 penalty units for harming an Aboriginal object; National Parks and Wildlife Act 1994 (NSW) s 84. 397. Criminal Law (Sentencing) Act 1988 (SA) s 9D. 398. Protection of the Environment Operations Act 1997 (NSW) s 249. 399. Fisheries Management Act 1991 (Cth) s 84(1)(ga)–(gd). 400. Fisheries Management Act 1991 (Cth) ss 106A and 106AA. 401. Olbers v Commonwealth of Australia (No 4) [2004] FCA 229; Olbers Co Ltd v Commonwealth of Australia [2004] FCAFC 262; Olbers Co Ltd v Commonwealth of Australia [2005] HCA Trans 228 (dismissing the application for leave to appeal). And see Gullett, ‘Smooth Sailing for Australia’s Automatic Forfeiture of Foreign Fishing Vessels’ (2005) 22 EPLJ 169. Olbers has since been applied in the New South Wales District Court in R v Amoedo and Dominguez (2006) 4 DCLR (NSW) 305. Troy, ‘Caught: Hook, Line and Sinker — The Prosecution of Fish Poachers in Australian Waters’ (2008) 25 EPLJ 5 argues that the Australian forfeiture provisions may not be supported by international law, specifically the United Nations Convention on the Law of the Sea (UNCLOS). On the status of international law in Australia, see 4.41. 402. Fisheries Management Act 1991 (Cth) ss 106 and 106AAA. 403. Crowther v Queensland [2009] QPEC 31. 404. Beaudesert Shire Council Brecevic v Big Boulder Walls Pty Ltd [2003] QPEC 52; Environment Protection Authority v Pannowitz (No 2) (2006) 153 LGERA 126; Booth v Yardley (2008) 160 LGERA 352; Booth v Frippery Pty Ltd [2008] QPEC 122. Unless legislation effectively abrogates the common law immunity of the Crown from contempt proceedings, then an order for contempt may not be available against the state: Crowther v Queensland (2006) 148 LGERA 220. 405. Contempt may also be established by failure to comply with court orders in civil proceedings: see Booth v Yardley (2008) 160 LGERA 352 (court order to disconnect electric grid system used to electrocute flying foxes; disconnection of electricity to grid not compliant with order); Booth v Frippery Pty Ltd [2008] QPEC 122 (failure to dismantle grid system). 406. See Environment Protection Authority v Pannowitz (No 2) (2006) 153 LGERA 126; Booth v Yardley (2008) 160 LGERA 352; Booth v Frippery Pty Ltd [2008] QPEC 122 (fine of $5000). 407. See also The Registrar, Environment, Resources & Development Court v Wandel (No 2) [2014] SAERDC 13, (order committing the respondent to six months’ imprisonment, suspended on condition that he re-vegetate the land as per the original order, plus a fine of $5000). 408. See also Environment Protection Authority v Hanna [2013] NSWLEC 41 (three months suspended prison sentence for illegal transportation of waste). 409. Chief Executive Office of Environment and Heritage v Fish (No 2) [2014] NSWLEC 67. 410. For example, Dubois v Rockhampton Regional Council [2014] QCA 215; Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64. And on indemnity costs orders see 21.34. 411. Criminal Procedure Act 1986 (NSW) ss 257C and 257D; and see Southon v Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292. 412. Environment Protection Authority v Bulga Coal Management Pty Ltd (No 2) [2014] NSWLEC 70 (a

prosecutor’s failure to interview an eyewitness or otherwise material witness is capable of satisfying the test).

[page 913]

Chapter 21 Civil Enforcement: Remedies for Citizens Introduction 21.1 One of the most notable features of environmental law is that many of the important principles of interpretation, application and enforcement have been considered and pronounced upon by courts and tribunals because citizens, rather than regulatory authorities, have been prepared to take action in the public interest to challenge or question exercises of government regulatory authority, and enforce the law against private individuals and corporations: In order for environmental laws to be effectively enforced, it is not sufficient to rely on public authorities to do the enforcing. Environmental laws must have ‘teeth’, in that important prohibitions and duties ought not to be left entirely to the unfettered discretion of Ministers, government agencies, or public officials. The inclusion of structures or procedural controls in the statute to govern the exercise of discretion and ensure judicial review enables the public to maintain some control over improper execution of the law.1

Citizens, or members of the public, may engage in environmental litigation in a number of ways: by seeking civil remedies against persons who are in breach of legislation (civil enforcement); by prosecuting offenders (criminal proceedings); by contesting the legality of a decision (judicial review); and by appealing the merits of a decision (merits review).2 Not all of these possibilities are open to all potential litigants in all jurisdictions in all circumstances. Legislation and principles of common law must be carefully scrutinised to determine who has standing (see Chapter 19) to initiate such action; the grounds on which action may be based; the

remedies that are available; and how costs may be determined. All of these considerations will influence the decision whether to engage in environmental litigation. [page 914]

Civil enforcement 21.2 A person seeking to enforce the law by asking a court for a civil remedy3 must first establish their standing to take the action: see Chapter 19. Except for New South Wales, where ‘any person’ may enforce environmental laws by civil means,4 occasional similarly broad provisions in other jurisdictions,5 and the fairly liberal provisions in the federal jurisdiction,6 standing may be a barrier to enforcement. Apart from standing, there are two components that a person bringing civil enforcement proceedings must establish: first, that a breach of the relevant statute has occurred; second, that there is an order that is appropriate to remedy or restrain the breach.7 Where leave of court is required to bring civil proceedings, in deciding whether to grant leave, it is usual to specify that the court must be satisfied that the proceedings are not an abuse of process, that there is a real or significant likelihood that the requirements for making an order will be satisfied, and that it is in the public interest that proceedings should be brought.8 In Brown v Environment Protection Authority & North Broken Hill Ltd (No 2) (1992) 78 LGERA 119, involving similar provisions for bringing criminal proceedings, the Land and Environment Court of New South Wales held that this did not mean that the court had to be satisfied there was a significant likelihood of it making an order. It merely had to be satisfied that the case was within the jurisdiction of the court, the remedy sought was within the power of the court to grant, and there was an allegation alleging a breach or apprehended breach of an act that was causing or likely to cause harm to the environment.

Criminal proceedings 21.3 Although legislation sometimes enables citizens to enforce breaches by way of criminal process, usually with leave of court and in circumstances where the

[page 915] appropriate regulatory authority has decided not to take any relevant enforcement action,9 the investigative and evidentiary burdens associated with this method of enforcement really discount it as a realistic proposition for citizen enforcement.10 In practice, no use is made of such provisions.

Civil remedies 21.4 Civil remedies can be more flexible and efficient than criminal remedies. This is particularly so where action is taken in specialist environmental courts and tribunals, which, although they have to have regard to the purposes of their enabling statute, and usually the public interest, in making orders for relief, are frequently given wide discretion about the breadth and form of any order to be made. This also means that many of the technical defences available to fend off the equitable remedies of injunction and declaration, commonly sought in environmental litigation, such as laches,11 acquiescence and delay, may not have the same application in specialist courts and tribunals as they do in private litigation in the Supreme Court.12 Most jurisdictions have specialist environmental courts or tribunals to which civil enforcement proceedings are directed.13 These courts and tribunals are empowered, either by reason of the jurisdiction conferred on them by their own enabling legislation, or by other legislation conferring jurisdiction, to make a wide range of orders to enforce the terms and purposes of the legislation. The scope of these orders, for example orders for declaratory or injunctive relief, or restraining orders, may be specified in the legislation,14 or the legislation may simply empower the court to make such orders as it thinks fit to remedy or restrain a breach.15 Such orders may not only encompass a provision restraining a person from continuing a breach, but also preclude that person from carrying out any use or development of land for a specified period and require the person to make good the breach;16 for example, by restoration or remediation of [page 916] the affected environment.17 Exercise of powers to issue declaratory, injunctive or other relief must of course have regard to the legal principles that underpin the discretion to make such orders.

Injunctions 21.5 An injunction, often referred to in tribunals or lower courts as a ‘stop order’ or ‘restraining order’,18 is generally directed to persons whose activities are causing environmental harm in breach of regulatory requirements. Such an order may require the recipient of the order to permanently or temporarily refrain from an act or course of conduct,19 and, if necessary, to undertake specified action such as clean-up or other remediation.20 For example, in Donnelly v Solomon Islands Mining NL (2002) 121 LGERA 264, where the respondents were causing damage to the habitat of threatened species contrary to the National Parks and Wildlife Act 1974 (NSW) (NPWA) s 118D, the court indicated that it could restrain further development pursuant to consent conditions if the breaches committed by the respondents meant that the development could no longer be carried out in conformity with the consent. 21.6 An injunction may also be issued to a person who is failing or refusing to do an act in circumstances where such failure or refusal amounts to a criminal offence. In this event, the injunction may order the person to do the act.21 Where legislation binds the Crown, which is usual in environmental legislation, then an injunction may be issued also against the state, and possible immunity from an action for contempt22 for breach of the injunction should not deter the court from making the order to forestall further breaches of the legislation.23 The award of an injunction, because it is an ‘equitable’ remedy, is not granted as of right to a successful applicant. It lies in the discretion of the court, which must balance the advantages to the complainant against the disadvantages to the respondent of any [page 917] award made. This is generally known as the ‘balance of convenience’ and is assessed by reference to the circumstances of every individual case.24 Factors that would be considered in weighing the balance include: where the ‘status quo’ lies and whether any alteration to that would result in irreparable damage to the plaintiff’s interests; whether damages would be an adequate remedy (unlikely in ‘public interest’ environmental litigation);25 the conduct of the parties (the plaintiff must also have acted conscionably);26

whether breaches were substantial or merely technical; the public interest in the enforcement of public duties and protection of the public interest;27 whether enforcement of the legislation would lead to disproportionate injustice to the respondent;28 hardship or disadvantage to other members of the public generally;29 whether, although there has been a breach of planning or environment laws, it is now too late to make an order that would serve any useful environmental purpose;30 and the existence of other statutory processes in which the subject matter of the action can or will be considered.31 21.7 In environmental cases, the courts may be prepared to favour protection of the public interest over hardship to the respondent, particularly where damage to the environment would be irreparable or irreversible. In Richardson v Forestry Commission (1987) 73 ALR 589 at 600, Mason CJ commented that, where the plaintiff was seeking an injunction to protect the integrity of a natural area pending an inquiry as to its world heritage values: … it is somewhat artificial to say that the plaintiff must establish irreparable injury … [d]espite statements that the plaintiff must show that it is probable that the plaintiff will suffer irreparable injury if no injunction is granted … in a case such as the present it is enough for the plaintiff to show that irreparable injury is a possibility …

[page 918] Of course, much environmental damage is likely to be irreparable and there are consequently strong reasons for preserving the environmental status quo by the issue of an injunction. In Booth v Bosworth [2001] FCA 1453 at 115 (the Flying Fox case), Branson J said, in issuing an injunction to restrain electrocution of spectacled flying foxes that were heritage values of a world heritage listed property: [I]n weighing the factors which support the exercise of the court’s discretion in favour of the grant of an injunction … against those factors which tell against the grant of such an injunction, it seems to me that it would be a rare case in which the court could be satisfied that the financial interests of private individuals, or even the interests of a local community, should prevail over interests recognised by the international community and the Parliament of Australia as being of international importance.32

A decision in favour of the public interest will also be assisted where parliament has shown its intent to allow proceedings for an injunction to be

used to enforce the statutory scheme.33 Modern environmental legislation often does this.34 21.8 One interesting limitation of the use of injunctive relief was raised in Mees v Roads Corporation [2003] FCA 306, where the defendants were found to have provided false or misleading information to the federal Environment Minister in a referral under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA). The authority had referred a freeway construction proposal but had not included material relating to the possibility of further extensions. Indicating that the matter raised significant issues for the referral process under the EPBCA, Gray J said (at [118]): … the Environment Minister has no fact-finding role in the process of examining a referral of a proposed action. The Environment Minister must make a decision on the information provided in the referral. This consideration renders it all the more important that the referral document must contain information that is truthful and complete, so as not to mislead. The purpose of the EPBC Act, to protect the environment, would be subverted if the Environment Minister were to be called upon to make determinations in relation to proposals without full information of the kinds required by the EPBC Act and the EPBC Regulations.

The EPBCA s 489 makes it an offence to provide false or misleading information in order to gain a permit. Could an injunction issue against, in this case, the Crown to restrain, or repair, commission of a criminal offence? Apart from complications about Crown immunity from criminal prosecution: [page 919] … the question may arise whether an injunction can be granted in respect of conduct amounting to an offence in the absence of proof of all elements of the offence. It may be that there is a deficiency in the EPBC Act. It does not provide for a straightforward method whereby an interested person can compel the correction of misleading information supplied inadvertently.35

In the event, injunctive relief was not possible to restrain, or correct, the issue of misleading information.

Interlocutory injunctions 21.9 An applicant will frequently apply for a temporary interlocutory, or interim, injunction in circumstances where the subject matter of the action may disappear before a court hearing can determine the legality of the disputed conduct. In such circumstances, interim relief will enable the environmental ‘status quo’ to be maintained until the court can pronounce on the issue. Relief may be applied for in person or in cases of real urgency over the telephone. An applicant for an interlocutory injunction, however, must be able to

establish an arguable or prima facie case that would justify a grant of interim relief.36 The applicant, in other words, must show that there is a ‘serious question to be tried’.37 If the case is not strong, this will mitigate against the issue of such an order.38 It has also been argued that a higher level of assurance is required in order to issue a mandatory injunction (requiring the respondent to take positive action) than a prohibitory injunction (requiring the respondent to refrain from an action), although this does not seem to have unduly influenced the way in which a court will exercise its discretion. ‘In either case, the court should grant an interlocutory injunction whenever refusing such relief would carry a greater risk of injustice than granting the relief’.39 As with applications for permanent injunctions, the ‘balance of convenience’ is the paramount consideration in assessing the relative interests and impacts on the parties, including whether the applicant (or more likely the environment) will suffer irreparable harm for which an award of damages is not appropriate.40 [page 920] 21.10 The public interest may also be relevant in weighing up the ‘balance of convenience’. In Castlemaine Tooheys Ltd v South Australia (1986) 67 ALR 553 at 558, Mason J refused to issue an interlocutory injunction restraining enforcement of legislative provisions that would apply mandatory deposits to the plaintiff’s beer bottles on the basis: … that the proposed restraint on enforcement of the statute would occasion a significant detriment to the public interest by preventing the defendant from enforcing a legislative scheme which is designed to protect the environment from pollution by litter. Then the need to protect the private interests of the plaintiff must be weighed against the public interest in avoiding injury to the environment.

The balance of convenience favoured the public interest.41 In two cases42 brought under the provisions of the EPBCA, the balance the court had to consider was between issues of public safety and world heritage values, represented by the presence of dingoes on Fraser Island. In refusing an interim injunction to prevent culling of the dingoes, the court referred to the small number of animals affected and the limited time in which culling would be carried out.43 In circumstances where the subject matter of the proposed action would disappear before the action could be brought on, then the balance of convenience is likely to lie with the applicant;44 but an undertaking for damages may be required.

Undertaking for damages 21.11 In environmental litigation, situations frequently arise where the applicant detects a possible breach of the law and wishes to have the offending activity stopped immediately, pending hearing of an action for a permanent order. Courts generally are willing to grant interlocutory, or temporary, injunctions to preserve the ‘status quo’ until the legality of the respondent’s conduct can be determined; usually where the status quo is either immediately threatened or where there remains a significant period of time during which further unlawful activity could be conducted to the detriment of the subject matter of the action.45 However, the applicant may be required to give an undertaking to compensate the respondent for any financial loss the respondent might suffer should it be found, in a full hearing, that the respondent’s conduct was perfectly lawful, and the temporary injunction, therefore, was wrongly issued. ‘This undertaking underwrites the risk, and responds to the court’s anxiety, that the grant of the interlocutory injunction might later prove to be the wrong course of action and cause the respondent or a third party [page 921] damage for which there is no redress except by an order for costs.’46 This rule has its origins in private litigation where the court needs to strike a balance between competing private interests. Traditionally, therefore, refusal to give such an undertaking will generally result in the court’s discretion being exercised against the applicant. 21.12 In Ellison v Warringah Shire Council (1985) 55 LGRA 1 at 16, Bignold J likened the position of a private person suing in reliance on the open standing provisions of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) to that of a relator in proceedings brought by the Attorney-General, where the relator is required to secure the costs of the action: see 19.45. On the other hand, the same argument applies as it does in relation to court orders for costs and security for costs.47 That is, if persons are deliberately encouraged by statutory provisions to assist in enforcement of public environmental laws, then restrictive rules of common law that discourage such participation should be relaxed. Public interest litigants are usually at a financial disadvantage from the outset in funding the costs of litigation without having to find extra funds for a bond. 21.13 In Ross v State Rail Authority (NSW)48 and Nettheim v Minister for Planning,49 Cripps J, in the Land and Environment Court of New South

Wales, indicated a shift in judicial emphasis when he held that in public interest proceedings the failure of the plaintiff to give the usual undertaking as to damages should be regarded not as determinative of the plaintiff’s claim, but as one factor only to be taken into account. Subsequently, in Jarasius v Forestry Commission50 and Corkhill v Forestry Commission,51 Hemming J was also prepared to grant an interlocutory injunction despite the fact that the applicant was not prepared to give such an undertaking.52 In determining this question, however, the court must decide where the ‘balance of convenience’ lies; that is, weigh up the possible damage to the respondent and balance that against the public interest nature of the proceedings.53 It is important that the court, in seeking to smooth the path of litigation for plaintiffs in public interest proceedings, does not act in a manner that is inherently unfair to respondents. In Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806, for example, Preston J, in refusing an application for an interlocutory injunction where the applicant had not offered an undertaking as to damages, considered that the delay by the applicant, the fact that the applicant was a trade competitor, minimal [page 922] environmental risk and the current lawful use of the land, all outweighed the admittedly reasonably strong case in relation to the breaches of the legislation. In any case, whether or not an applicant consents to an undertaking, and whether or not the court is prepared to grant an interim injunction, the court may well be prepared to expedite the full hearing.54 21.14 In Save Our Figs Inc v General Manager of Newcastle City Council [2011] NSWLEC 207, the plaintiffs sought an interlocutory injunction to restrain the removal of iconic fig trees. The court said that in exercising its discretion in relation to the usual undertakings for damages, the three-step process adopted by the court in relation to orders for costs (see 19.31) should be applied: first, can the litigation be characterised as having been brought in the public interest? Second, if so, is there ‘something more’ than the mere characterisation of the litigation as having been brought in the public interest? Third, are there any countervailing circumstances that speak against departure from the usual rule? In this case, application of this three-step process resulted in the court’s discretion being awarded in favour of the applicant and the applicant was not required to give the usual undertakings as to damages. Although the case was not strong, on balance, it was determined that the injunction should issue.

21.15 Although legislation and court rules tend to give courts a discretion whether to require an undertaking for damages as a condition of awarding interim injunctive relief, interestingly a contrary provision originally inserted into the EPBCA, that the Federal Court ‘is not to require an applicant for an injunction to give an undertaking as to damages as a condition of granting an interim injunction’,55 has since been repealed, effectively restoring the discretion of the court to require an undertaking. In Blue Wedges Inc v Port of Melbourne Corporation [2005] VSC 305 at [11], Mandie J said that an interim injunction should be issued without the usual undertakings only in ‘exceptional circumstances’; however: I can conceive that in some circumstances an interlocutory injunction might be granted without requiring the usual undertaking as to damages if there was a manifest breach of the law threatened. It might then be in the public interest to grant such an injunction without requiring the usual undertaking as to damages. Likewise if there was a proven danger of irremediable harm or serious damage an interlocutory injunction might perhaps be granted in some circumstances without the undertaking being required.56

This case, however, concerned a threat of a breach, not an actual breach. Where a breach has been established, and the full hearing is likely so to find, then there may be a very good case for not insisting upon such an undertaking.57 For example, in Blacktown City Council v The Penatrators Pty Ltd [2013] NSWLEC 169, the court was [page 923] prepared to issue interlocutory injunctive relief without the usual undertaking as to damages because there was no relevant development consent for use of the subject land for a waste disposal facility, and the respondent had shown unwillingness to assist council to resolve the matter. The balance of convenience weighed heavily in favour of council because of the real and necessary public interest in upholding the planning laws of the State. The ‘balance of convenience’ though is the critical issue; and this may be gauged by reference to whether there is a serious question to be tried; whether a prima facie breach is apparent; the relative means and roles of the parties; the risk and significance of environmental harm; the public interest; and justice to the parties. In the end, the determination may well come down to whether there is a lower risk of injustice in making the order without an undertaking and then at the final hearing accepting the award had been wrong, than if no order had been made and then at the final hearing an order was made.58

Declaration 21.16 The declaration is also an equitable remedy. As its name implies, a declaratory judgment is simply a statement by the court of a person’s legal rights or duties. This remedy has no restraining or mandatory effect in itself, though it may be coupled with another remedy that does provide for the effective enforcement of the declaration, such as an injunction. The jurisdiction to make an injunctive order does not, however, depend on the court first making a declaration.59 Even on its own, however, a declaratory judgment, being a decision of a court of law, is unlikely to be ignored.60 Even if it is, there may be various indirect ways of enforcing it, such as by the court refusing the respondent a remedy if he or she subsequently takes action against the plaintiff to enforce a decision already declared by the court to be unlawful. A declaration may also be sought in advance of any injury arising. Just as a declaration can be made in respect of a past breach, there is no doubt that a declaration may also be made in respect of a continuing or even anticipated breach of an environmental statute,61 although the courts retain a discretion to refuse to make declarations in purely hypothetical cases. A declaration is likely to be refused, therefore, where it can have no practical consequences.62 It may also be refused where a statutory scheme provides [page 924] alternative remedies, although the making of a declaration is not automatically ousted where such remedies exist.63 21.17 On the other hand, it may be appropriate to make a declaration as to future conductor rights where past or future conduct might be carried out in breach of statutory requirements;64 and to resolve a real dispute of considerable public importance that may involve further litigation.65 For example, in Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [308], Stein JA, in determining that declarations should be made that mining activities causing environmental harm were in breach of relevant statutes, said: There is a demonstrable purpose in making the declarations. They serve to declare the law and underline the breaches. They have utility and draw attention to the continuing environmental harm to the aquifer.66

In Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6, although making a declaration would have no practical effect on the rights and duties of the parties, the court held that it would be appropriate to make a declaration,

inter alia, because of the seriousness of the breach (clearing vegetation of high conservation value), the fact that the respondent had committed previous breaches, and the fact that a public authority ought to lead by example. Making a declaration also marks the disapproval of the court of conduct that parliament has proscribed. It also serves to discourage others from acting in a similar way and may, therefore, be seen to have a deterrent and educative element.67 It has also been said that a court should not use a declaration in civil enforcement proceedings as a substitute for criminal prosecution; that is, to punish wrongdoers under the guise of a civil remedy.68 The judgment of a court will usually suffice to publicly expose and denounce any unlawful behaviour. [page 925]

Prerogative writs 21.18 The prerogative writs that are most potentially relevant in environmental litigation are mandamus, certiorari and prohibition.69 The prerogative writ of mandamus may issue to compel a public official to carry out public statutory duties. Before seeking such a writ, a plaintiff must usually demonstrate that he or she has at least made some demand of the respondent that those duties be performed. It may be of some assistance in forcing recalcitrant local or state government authorities charged with environmental planning and protection functions to carry out their statutory responsibilities.70 Despite this, in practice it is not often sought in environmental cases, and even when it is, it is difficult to succeed. This is because although regulators and public authorities that manage natural resources may be under statutory duties to manage, for example, in accordance with management plans and principles of ecologically sustainable development, the way in which this duty is to be discharged generally lies within the discretion of the manager.71 It is not the court’s job to compel performance of the duty in a particular manner, unless the statute clearly prescribes the manner of performance. Further, since the issue of all prerogative writs lies within the discretion of the court, the court may decline to make an order where the statute imposing the duty provides a specific remedy for enforcement. This, however, would depend on the statutory remedy being interpreted to be an exclusive remedy.72 Many environmental statutes, for example, confer on individuals a right to seek an injunction restraining unlawful conduct, but those statutes

also usually preserve other rights of civil action, thus indicating that the statutory remedy is not intended to be exclusive.73 21.19 The prospect of issuing a continuing mandamus is beginning to excite more attention. This would enable a court to monitor the implementation of a court order directed to a government authority: [page 926] In Metropolitan Manila Development Authority v Concerned Residents of Manila Bay G. R. Nos. 171947-48, 18 December 2008, the Supreme Court of the Philippines issued for the first time a continuing mandamus through which the Authority was compelled to perform its duties in cleaning and preserving the polluted Manila Bay, and was obliged to submit quarterly progress reports to the Court for monitoring. This extraordinary ruling was adopted from the famous Indian case, M.C. Mehta v Union of India (1987) 4 SCC 463, which introduced the concept of continuing mandamus.74

This may of course be more relevant in jurisdictions where the relevant government authority is less likely to comply with a court order without constant supervision; and where NGO monitoring, and powers of enforcement, are less finely honed than in Australia. 21.20 Certiorari and prohibition are also prerogative writs that may be of use in environmental cases. Certiorari is used to quash acts and decisions having legal effect on rights,75 made by government decision-makers76 or inferior courts or tribunals77 that have acted unlawfully or outside their legal jurisdiction. In other words, it renders the decision void and of no legal effect. Prohibition, on the other hand, prohibits a decision-maker from continuing, or threatening to commit, an illegal action. Whether certiorari or prohibition is sought, therefore, depends largely on the timing of the application. Neither of these remedies actually empowers the reviewing court to substitute its own decision for that of the original decision-maker, but the decision challenged will remain void and of no effect until the whole process is carried out in a legally acceptable manner. The writ of certiorari was used, for example, in Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136, to quash an environmental assessment report of the EPA and subsequent decision of the minister relying on that report. It was found that the EPA, in making certain recommendations in the report, had exceeded its statutory functions.78 The writ was also applied in R v Resource Management and Planning Appeal Tribunal; Ex parte North West Rendering Pty Ltd (2005) 138 LGERA 412, to a tribunal that had made an order that was declared to be ultra vires for lack of certainty; and in Starkey v South Australia [2011] SASCFC 164, to quash a ministerial mining authorisation issued invalidly. These

remedies only lie in favour of persons having demonstrable rights, however, not [page 927] merely interests. This means that the remedies would not be available, for example, in cases of failure to accord natural justice79 to persons whose interests rather than rights were affected. In this case, however, alternative remedies by way of declaration or injunction would be available.80

Damages 21.21 Damages are generally awarded in private civil litigation to compensate parties who have suffered financial loss by reason of the unlawful acts of others. Common law actions for damages were discussed in Chapter 3. In normal public interest environmental litigation, damages are unlikely to be sought as compensation, because the applicant will not have suffered compensable loss. Where a person does, however, suffer loss or damage to property as a result of a criminal breach of environmental laws, then legislation may give statutory rights to those affected to recover reasonable costs and expenses incurred as a result of taking action to prevent or mitigate the loss.81 This might include the expenses and liabilities of repair, mitigation and prevention of damage to the environment or matters protected.82 Such compensation may be recovered when the offender is successfully prosecuted, rather than the affected party having to commence separate civil proceedings. An award of exemplary damages by a court, on sentencing for a successful prosecution of an offence, is designed to remove any financial benefit to an offender arising out of a breach of environmental laws.83 It was said in a civil trespass case, Port Stephens Shire Council v Tellamist Pty Ltd (2004) 135 LGERA 98, that to consider awarding exemplary damages it must be established that there has been a ‘conscious and contumelious disregard’ for the owner’s rights. In this case, lack of diminution in land value as a result of the trespass meant that only nominal damages would be awarded.

Orders for restoration or remediation 21.22 The power given to an environmental court or tribunal to ‘remedy or restrain’ a breach allows the court or tribunal greater flexibility to make orders

that are appropriate in the circumstances. The power to order remediation is one of those orders.84 For example, in Great Lakes Council v Lani (2007) 158 LGERA 1, the respondent had cleared native vegetation comprising endangered ecological communities in contravention of the National Parks and Wildlife Act 1974 (NSW) and the Native Vegetation Conservation Act 1997 (NSW) (NVCA). The court made [page 928] orders, as agreed to by the parties, requiring the respondent to retain a bush regenerator and an ecologist to complete certain remediation measures within the cleared area, and install nest boxes. Specific time frames were given as to the steps to be taken. Enforcement of remediation orders can trigger criminal processes. For example, under the Uniform Civil Procedure Rules 2005 (NSW), where a judgment or order in civil litigation requires a person to do an act and the person fails to do the act so required, a court has the power to enforce the judgment or order by committal (imprisonment) of the person bound by the judgment or sequestration of the property of the person or both.85 A failure to comply with an order of the court is also likely to constitute a criminal offence, in which case proceedings for contempt are also available even though the original proceedings were civil in nature.86 Remediation may also be ordered by a government authority as part of its statutory powers to issue administrative orders: see 20.4.

Costs in civil litigation 21.23 The downside to broad public rights of civil enforcement is that persons who bring such actions may be required, and indeed give security, to pay costs to the respondent in the event that the enforcement action is unsuccessful. Although courts are generally empowered to exercise discretion in the award of costs in legal cases,87 traditionally the costs of litigation would be expected to fall on the unsuccessful party; that is, ‘costs follow the event’.88 The costs that may be recovered are generally confined to liabilities incurred for professional legal services and do not include compensation for time or money spent by a litigant in preparing and conducting his or her own case, including travel and accommodation expenses.89 The purpose of this rule is to compensate or indemnify the successful party for fees or expenses reasonably

incurred in connection with the litigation, not to punish the unsuccessful party.90 The only rider to this is that a successful party cannot pursue the costs of mediation because, as a matter of policy, a court should be careful not to [page 929] impede a consensual mediation or create disincentives to it.91 Neither can objectors expect differential costs awards vis-à-vis proponents or public bodies.92 This is unlike the situation normally applied to merits appeals, where the parties generally meet their own costs unless there is good reason to make an award.93 In Queensland, however, each party must generally bear their own costs in any proceedings brought before the court but the court may depart from this rule in defined circumstances.94 21.24 It is obvious, however, that litigants who are government instrumentalities or corporations will normally have greater capacity to pursue legal remedies and appeal unfavourable decisions than private individuals or community groups. This can be a serious disincentive to enforcement by members of the public of the objects of planning and environment legislation, which are based on the protection of the public interest and the enforcement of public duties rather than the protection of private interests. The automatic application of costs rules developed in relation to private litigation can seriously undermine the grant of public rights of civil enforcement. As Toohey J once said: ‘[T]here is little point in opening the doors to the courts if litigants cannot afford to come in’.95 In Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) [2011] FCA 661 at [6], for example, the applicants were faced with a costs bill of just over $1 million at the conclusion of the hearings. 21.25 Clearly, where parliament has thought fit to confer standing on members of the public to enforce the provisions of the legislation, then this will be a significant factor in the exercise of this discretion. The existence of such a factor in New South Wales legislation was considered of paramount importance by the High Court in Oshlack v Richmond River Council (1998) 96 LGERA 173,96 where the court upheld the right of the Land and Environment Court of New South Wales to depart from [page 930] the conventional rule that costs follow the event.97 However, equally, the lack of such provision in Western Australian legislation influenced the High Court to refuse a variation of the normal costs order in South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land

Management (No 2) (1998) 101 LGERA 114. This approach has subsequently been followed by the Full Court of Western Australia in Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55, the court remarking (at [11]) that ‘great care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner’ and that the denial of costs to successful litigants upon the ground that the litigation bears a public interest character ‘should continue to be a rarity’.98 On the other hand, Oshlack has been applied by the Queensland Court of Appeal in Queensland Construction Materials Pty Ltd v Redland City Council [2010] QCA 248, the court remarking that the fact that both parties have had a measure of success and a measure of failure in litigation, and that issues upon which a party failed nevertheless resulted in the resolution of important questions of law, may mean that the appropriate order for costs should be that there be no order for costs. So too the fact that an application for review was not without merit, in the sense that it justified grant of leave to appeal, and the party did not stand to gain personally from the litigation, but was motivated to ensure that laws governing an application for approval of a development were complied with, may justify no order as to costs. It is clear, however, that, even where extended standing provisions have, in effect, encouraged a party to litigate, that this does not mean that unsuccessful applicants will be automatically protected from costs orders: In some cases, the public policy objective of facilitating, by an express conferral of wider standing, the seeking of an enforcement remedy in cases where the Minister may be unable or unwilling so to do may be undermined by the absence of any special provision in respect of costs. Equally though, in other cases, the absence of any such special provision may serve to temper what I described in the principal judgment,99 at [26], as the litigious ardour of the zealot, with consequent saving of expense for a prospective respondent and of scarce judicial resources.100

What is ‘public interest’ litigation? 21.26 The public interest nature of the litigation has now been firmly entrenched as a legitimate reason for a court not to award costs against an unsuccessful party. [page 931] This, of course, necessitates the action being legitimately categorised as ‘public interest’. Generally, public interest proceedings will seek to litigate an

important aspect of environmental law involving an issue of public notoriety or controversy, concerning a wide area or large number of people. The applicant’s motives are to protect the environment rather than to seek compensation or personal gain.101 In Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365, Lloyd J identified several considerations for determining litigation as public interest litigation, namely: (a) whether the public interest was served by the litigation; (b) whether that interest is confined to a relatively small number of people in the immediate vicinity of a development, or whether the interest is wide; (c) whether the applicant sought to enforce public law obligations; (d) whether the prime motivation of the litigation is to uphold the public interest and the rule of law; and (e) whether the applicant has no pecuniary interest in the outcome of the proceedings. So, for example, litigation will not be considered to be in the ‘public interest’ merely because some members of the public have or display a particular interest in the case and express their support for a self-funded litigant. In Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121, a neighbourhood planning dispute was held not to justify categorisation as in the ‘public interest’. On the other hand, the private interest of a litigant, or the confinement of the public interest to a small section of the community, will not necessarily prohibit characterising the litigation as being brought in the public interest; for example, if the proceedings are brought to uphold and enforce public law obligations and to ensure that an exercise of power is lawful.102 21.27 It should be noted, however, that characterisation of an action as ‘public interest’ will not automatically mean that no award of costs will be made. This remains a discretion in the court, which may look beyond whether the action is brought in the public interest to whether the circumstances in any particular case warrant a departure from the normal rule that costs should follow the event.103 In South-West Forest Defence Foundation Inc v Executive Director, Department of [page 932] Conservation and Land Management (No 2) (1998) 101 LGERA 114 at 115, Kirby J, in the High Court of Australia, said: ‘It may be accepted that this

court has a broad discretion in such matters that cannot be shackled by immutable rules. However, that discretion must be exercised judicially and in accordance with conventional, although not inflexible, practice.’ In Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178; FCAFC 175, the Full Court of the Federal Court confirmed that relevant considerations in exercising such a discretion would be whether the applicants had raised issues of real importance to the administration or interpretation of the Act; and whether the applicant was concerned, along with a large segment of the Australian community, to resolve a dispute, rather than seeking any financial gain.104 The court also indicated that costs might be apportioned on reflection of such matters. In Lansen v Minister for Environment and Heritage (No 3) (2008) 162 LGERA 258, for example, the strong significance of the issues raised by the applicants and their real concern (their lack of financial motivation, and the raising of issues that went directly to the construction and application of the legislation) convinced the court to make a limited costs award of 25 per cent to the successful party.105 21.28 In New South Wales, the position as to determinations of costs in the Land and Environment Court is that costs must follow the event unless it appears to the court that some other order should be made.106 To displace the effect of this rule it must be shown there is something out of the ordinary in the case to justify the departure. In Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39, Basten J refused to exercise a discretion for three reasons: the defendant was a commercial enterprise not a state government entity; the question raised involved a discrete point of interpretation that did not have broad ramifications for the community at large, nor even for environment protection; and the matter was not without consequence for the private interests of members of the plaintiff association. Young JA said at [50]: It must be remembered that once costs are incurred, they do not just vanish into the ether if a court declines to make an order that a party pay them. If a successful party does not obtain an order for costs, that party has to pay those costs itself. If a developer, that really means that the extra costs are passed on to purchasers of lots in the development …

21.29 In Anderson on behalf of Numbahjing Clan within Bundjalung Nation v New South Wales Minister for Planning (No 2) (2008) 163 LGERA 132, Biscoe J, after weighing in the balance the fact that the proceedings were brought in the public interest, ultimately refused not to make an order because (at [30]):

[page 933] … the weight of the public interest is diluted by the disagreement within the local Aboriginal community … the points raised were not ‘eminently’ arguable107 … a number of the points raised were a re-agitation of points which had failed in the earlier proceedings … there is no factor additional to the public interest, such as breaking new ground on a matter of legal principle …

On the other hand, Biscoe J also thought (at [28]) that: Viewed against the background of dispossession, there is much to be said for the view that a good arguable claim by an Aboriginal clan seeking to hold a public decision-maker to account in relation to land with which the clan has (or perhaps had) a special relationship, is a claim in the public interest which is of sufficient moment that, absent countervailing circumstances, departure from the usual ‘loser pays’ order as to costs is justified.

In Minister for Planning v Walker (No 2) [2008] NSWCA 334 at [9], however, after characterising the litigation as public interest litigation because of the public interest in principles of ecologically sustainable development and climate change flood risk, Hodgson J said, in relation to the other additional factors that convinced the court not to award costs against the public interest litigant: (1) The proceedings did raise a novel point of law, namely the extent to which the objects of the EPA Act, set out in s 5 of that Act, could constitute mandatory requirements in respect of decisions of the Minister. (2) The point was reasonably arguable, and in effect was upheld by the primary judge. (3) According to the primary judge and a majority of the Court of Appeal, Ms Walker did establish that the Minister had not taken into account one of those objects, namely ESD. (4) According to that majority, the Minister’s failure to do so was contrary to good decisionmaking, albeit not something that invalidated the decision, and ESD was something that should be taken into account when approval of the development was sought.

21.30 In Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59, the court determined, for reasons similar to Hastings, that the usual rules as to costs should apply.108 Preston CJ said there was a three-step approach to costs in public interest litigation: first, was the litigation truly brought in the public interest; second, were there any countervailing circumstances, such as disentitling conduct109 by the applicant or matters contrary to the public interest; third, is there ‘something more’ that would entitle a party to relief from the usual costs order?110 [page 934] Considerations that go to determining whether the litigation is brought in the public interest include whether the public interest is served by the litigation;111 whether interest is confined to a relatively small number of

people; whether the applicant seeks to enforce public law obligations and has the prime motivation of upholding the public interest and the rule of law; and whether the applicant stands to gain financially from the litigation.112 21.31 The test enunciated in Caroona Coal was applied in Hill Top Residents Action Group Inc v Minister for Planning (No 3) [2010] NSWLEC 155, where the court ordered the parties to pay their own costs on the basis that, even though the applicant had failed in a challenge to the legality of the minister’s decision, the proceedings had been brought to uphold and enforce public law obligations; and that the nature, extent and other features of the public interest involved in the litigation were significant enough to elevate the proceedings above the mere characterisation as public interest proceedings.113 In Snowy River Alliance Inc v Water Administration Ministerial Corporation [2011] NSWSC 652, the plaintiff failed in its challenge that a purported variation to the Snowy River water licence by the Water Administration Ministerial Corporation was void and of no effect. The successful respondent claimed costs. The court determined that the case had been brought in the public interest and that there were additional factors why costs should not be awarded: (a) It was common ground that the scheme set up by the legislature was unique and had not been the subject of prior judicial consideration. (b) The issues were novel and of importance. They were reasonably arguable. The argument for the plaintiff was presented competently and with appropriate despatch. There was no impropriety or unreasonableness in the conduct of the proceedings. (c) The Snowy River has iconic status and public interest in it extends well beyond its geographical location. (d) The plaintiff raised issues concerning the public obligations of the defendants. Although it was not conceded, the inference was that the plaintiff (and those behind it) had nothing to gain from the proceedings other than seeking to uphold the law as they understood it to be. There was no evidence of financial gain to the plaintiff in bringing the proceedings. The chairperson of the plaintiff deposed that the plaintiff did not stand to benefit financially or otherwise from bringing [page 935] these proceedings, nor did any members of the plaintiff stand to gain any material benefit from the relief sought in the summons.

(e) This is the type of case where the preferential order which is sought is appropriate if access to justice is not to be unnecessarily inhibited by concern in respect of potential adverse costs orders.114 21.32 In Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231, the applicants failed in their bid to challenge the decision of the respondents to remove trees considered dangerous by the council. The court observed that the litigation could be characterised as having been brought in the public interest for it was brought to uphold and enforce a public law statutory obligation and to ensure that the council’s exercise of power was lawful. There was also something more than mere characterisation of the litigation as having been brought in the public interest in two respects. First, the extent of the public interest in the lawfulness of the council’s proposed removal of ‘much loved’ trees was considerable; and second, the case raised issues of statutory interpretation of general importance, in particular the proper construction of the Roads Act 1993 (NSW) s 88 and its relationship with the EPAA. On the other hand, in McGinn v Ashfield Council [2011] NSWLEC 105, the court said that even where litigation may be classed as in the ‘public interest’, the self-interest of one of the parties in the outcome of the proceedings may also tend to weigh against a departure from the usual costs order.115 In this case, the fact that proceedings were relatively narrow in scope involving discrete points of statutory interpretation that would have limited application in the future, coupled with the private purpose of the unsuccessful litigant, convinced the court that it could not justify exercising the court’s discretion to depart from the ordinary rule as to costs. The proceedings were essentially an objection to a neighbouring development that would impact on the amenity of the applicant’s property. The litigation did not raise novel issues of general importance and it would not affect a significant section of the public or contribute more broadly to the development of administrative law. 21.33 To summarise, the sorts of questions asked by a court to justify a departure from the normal rule that costs follow the event may be set out as follows: Does the legislation under which the action is brought confer standing on the applicant to mount the challenge?116 Has an important aspect of public law or administration been determined? 117

[page 936]

Did the resolution of issues raised cover significant and novel issues or provide insights into the operation of the relevant statutory provisions?118 Did the case concern a project that would affect a large number of people over a wide area or was it essentially a local issue affecting a small number of people?119 Was the issue a matter of public notoriety or controversy?120 Did the applicant bring claims of substance, rather than argue technical breaches, even though those claims were ultimately rejected?121 What were the aims and objectives of the applicants? This latter ground will be assisted where the applicant’s objectives are protection of the environment and upholding environmental and planning laws, and the applicant is not motivated by profit or personal gain.122 Was the plaintiff partially successful in the case?123 Did the respondent act as ‘protagonist’ or, by contrast, did it act in a responsible manner?124 Was the Crown a party to the proceedings?

Indemnity costs 21.34 Unreasonably pursuing cases that have no real prospect of success could also tempt the court to award indemnity costs to a successful party.125 Indemnity costs are a form of punishment to a party for misconduct during the proceedings, for example by continuing to pursue a case that has no prospects of success, by making false statements, or by rejecting reasonable offers of compromise. In order to award indemnity costs the court must find some positive ground or good [page 937] reason that justifies the award of such costs.126 Many of the relevant principles and cases concerning indemnity costs were surveyed by Pain J in Glaser v Poole (No 2) [2010] NSWLEC 232. Such reasons could include circumstances surrounding the making and rejection of some offer of compromise in the proceedings, and/or circumstances where the party subject to the order to pay costs behaved in an unreasonable manner, such as to be regarded by the court as having been guilty of disentitling conduct.127 In Australians for Sustainable Development Inc v Minister for Planning

[2011] NSWLEC 33, and Australians for Sustainable Development Inc v Minister for Planning (No 2) [2011] NSWLEC 70, indemnity costs were awarded against the minister, who was ultimately successful in the proceedings, because of his decision after the hearing had concluded, to exercise a statutory power of exemption that effectively destroyed a ground of complaint on which the plaintiff would have succeeded but for the intervention. Biscoe J said that because the amendment had not been made in a timely way, considerable legal costs and resources had been wasted by the applicant and resources of the court had also been wasted. Indemnity costs are, however, less likely to be awarded against a selfrepresented litigant who discontinues an unmeritorious case within a reasonable period of receiving legal advice that the case is without legal merit. Indeed, there is a considerable policy advantage in ensuring that a punitive costs order is not made against a party who elects to discontinue an unmeritorious appeal.128

Protective costs orders 21.35 Faced with the possibility of costs awards against them, citizen or environmental action groups are often tempted to contest proceedings by forming an association that does not have funds to pay any costs awards. However, the warning issued by Mahoney JA in Citizens Airport Environment Association Inc v Maritime Services Board (1993) 79 LGERA 254 at 282, should be borne in mind: [T]he legislation129 allows — it may contemplate — that members of the public may take proceedings without the result that ordinarily obtains, namely, that if they fail they must pay the costs of the defendants … [t]o this end, the Land and Environment Court has, I think, accepted that proceedings may be commenced and injunctions obtained by corporations which have been formed for the purpose of the proceeding or cognate purposes and which, sometimes by design, have no funds from which the costs of successful defendants may be ordered … However, proceedings designed to be used for such purposes may be abused or, at least, may produce results which the legislature did not contemplate. The power to bring proceedings of this kind carries with it an obligation to use that power responsibly.

[page 938] Respondents that consider that this might be the case are more likely to ask the court for security for costs.130 The temptation to invent a ‘straw plaintiff’ to pursue an action may, however, be discouraged by the advent of protective costs orders: In the past, such litigation was sometimes undertaken by people of no means, rendering it

unlikely that a successful respondent which obtained an order for its costs would ever be likely to recover those costs. It is preferable that litigation be conducted by responsible entities and that the final arrangements with respect to recovery be transparent.131

21.36 Just as the spectre of costs awards, should a plaintiff lose, effectively stifle litigation, so may a determination ‘up front’ that a plaintiff’s costs will be waived or limited propel a plaintiff into making the decision to proceed with litigation. A ‘protective costs order’132 is a court order by which litigants can obtain a ruling from the court, before commencing litigation, about costs should they be unsuccessful. An indication whether costs would be waived or limited by the court obviously carries serious weight in deciding whether to go ahead with the litigation. Such an order may determine whether a litigant may have to pay the other side’s costs if they lose, or whether those costs can be limited to a predetermined amount. Such an order, enabled under the Judicial Review Act 1991 (Qld) s 49, was used in Alliance to Save Hinchinbrook Inc v Cook [2005] QSC 355, the court ruling that the applicant for relief would only have to pay its own costs, regardless of the outcome. The exercise of such a discretion will involve preliminary assessment by the court that the substantive proceeding is not frivolous, unreasonable or without reasonable basis. ‘Costs capping’ may be available in other jurisdictions under rules about management of proceedings or costs relating to civil litigation; for example, in New South Wales, the Uniform Civil Procedure Rules 2005 (NSW) r 42.4; and the Land and Environment Court Rules 2007 (NSW) r 4.2. Acting in accordance with the dictates of justice is the primary consideration for exercising such a discretion.133 21.37 A protective costs order could also constitute a reasonable basis for capping an order for security for costs: see 21.39. In Blue Mountains Conservation Society Inc v Delta Electricity [2009] NSWLEC 150, the exposure of the plaintiff to a costs order was capped at $20,000 because the plaintiff had indicated that it could not proceed if its costs exposure exceeded this amount, and the court determined that it would be against the public interest if the case did not proceed. It was also relevant that the plaintiff’s counsel was acting ‘pro bono’, and that the respondent was a state government corporation that would not be caused undue financial hardship by the making of such [page 939] an order. Any temptation for a party awarded such an order to run its case less than efficiently could be met by exercising the statutory power to vary such an order should special circumstances arise.

The respondent then claimed security for costs in excess of $20,000: Blue Mountains Conservation Society Inc v Delta Electricity (No 2) [2009] NSWLEC 193. This application was dismissed, on the basis that it would be clearly contradictory to the protective costs order already made to order security for an amount greater than had already been set by the order. Leave to appeal to the Court of Appeal on this issue was summarily dismissed by the court: Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 264. It was stressed, however, in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources [2009] NSWLEC 165, that a maximum costs order would not be awarded unless necessary to facilitate access to justice for the applicant; and that the factors relevant to the exercise of this discretion, and their relative weight, need to be evaluated in the particular circumstances of each individual case. An appeal was then lodged against the decision of the court to cap costs in the Blue Mountains case. By a majority the New South Wales Court of Appeal upheld the NSWLEC order. In dissent, Beazley JA considered that the trial judge had failed to take into account a relevant consideration, namely, the disproportionality between the order made and the reasonable estimate of the appellant’s costs; and that this took the decision outside the range of discretion permitted under the Rules. Basten JA, in the majority, said at [218]–[219]: The lack of proportionality between the costs permitted to be recovered and the likely final bill does not carry the weight sought to be placed on it by Delta. As noted above, the principle that any person may bring proceedings to prevent a breach or threatened breach of environmental protection laws will be seriously undermined if some protection against large costs bills is not available. Important public interest disputes are often complex and based on expert evidence. Public-minded citizens may well be able to obtain donations of time and expertise from professional witnesses and lawyers, but will find it less easy to raise funds to meet the costs of the other party.

Access to justice, stifling potentially meritorious litigation, and the lack of equality between the means of the applicant and that of the respondent, may all combine to convince the court that such an order is appropriate.134 21.38 As a corollary to the principle that costs should not be awarded against applicants in appropriate public interest litigation, the public nature of the proceedings may be a reason why costs should be awarded in their favour if they succeed. For example, in Australian Federation of Consumer Organizations v Tobacco Institute (1991) 98 ALR 670, the public interest nature of the proceedings (misleading or deceptive statements on public health) was an important consideration in the decision by Morling J that the

applicant should be completely indemnified for solicitor–client costs so that the applicant would not suffer financially for its success in the public [page 940] interest litigation. Generally speaking, however, the applicant will only be entitled to costs for those aspects of the case on which success is achieved. This does not mean that the applicant will necessarily have to bear costs on issues successfully defended by the respondent. The appropriate order in that case may be that the parties should bear their own costs in relation to that issue.135

Security for costs 21.39 An applicant for an order in civil proceedings may be asked to lodge security for costs, that is, to guarantee the respondent’s costs should the action fail. An application will generally be made by a respondent who considers that, faced with an impecunious plaintiff, they run the risk of not having their costs paid should the plaintiff lose the case and the court determines a costs award in favour of the respondent.136 The onus lies on the respondent to establish this threshold question; and once the respondent has discharged this onus, the onus shifts to the plaintiff to establish a reason why security should not be granted.137 21.40 The exercise by a court of this power may of course effectively determine whether the action will proceed. An impecunious plaintiff who cannot meet an order for security is likely to discontinue the action, to the benefit of the respondent. For this reason courts are wary of stifling legitimate litigation just because the plaintiff happens to be impecunious, particularly where the case is brought in the public interest against a large corporate entity or government authority.138 If the plaintiff cannot raise the necessary security, then the action may not proceed and the legality of the respondent’s conduct may never be determined.139 In Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607 at 613, Wilcox J, in the Federal Court, commented that ‘[C]are must be taken not to stifle an action which, in the interests of justice, ought to be determined on its merits’, and that the impecuniousness of the applicant was a relevant, though not the only, factor in determining whether security would be required. In Town Watch Inc v Grafton City Council (1997) 93 LGERA 401, Pearlman J in the Land and Environment Court in New South Wales

indicated that the following factors were relevant in determining whether security should be required: the purpose for which the applicant was suing; the impecuniousness of the applicant; the strength of the applicant’s case; and the public interest nature of the litigation. [page 941] 21.41 In New South Wales, a plaintiff is not to be required to provide security for costs in respect of judicial review proceedings except in exceptional circumstances.140 The Land and Environment Court Rules 2007 (NSW) r 4.2(2) states that the court ‘may decide not to make an order requiring an applicant … to give security for a respondent’s costs if it is satisfied that the proceedings have been brought in the public interest’. Tests for the ‘public interest’ nature of litigation have been discussed at 21.26 and following.141 Even in a public interest case, however, the interests of justice may lean the other way, convincing the court to make an order for security of the costs the respondent might incur in defending the action. One of the grounds on which such an order might be made is where the plaintiff is suing, not for his or her own benefit, but on behalf of some other person, and there is reason to believe the plaintiff will be unable to pay costs if ordered to do so.142 In this event, the court may consider it reasonable that those who ‘stand behind’ the plaintiff should contribute to the provision of security.143 For example, in Donnelly v Capricornia Prospecting Pty Ltd (1999) 102 LGERA 310, the applicants claimed to be traditional custodians of land over which goldmining operations were seeking permission to pump water. They were asked to lodge $20,000 by way of security, because not only were they purporting to represent others, who could be asked to contribute to the costs of the proceedings, they had unsuccessfully brought five previous actions against the respondents, they had costs orders from previous proceedings still outstanding against them, and they had stated that they would continue to litigate until mining ceased. In John Williams Neighbourhood Group Inc v Minister for Planning [2011] NSWLEC 100, the court also had regard to the limited liability of the applicant’s members and the fact that no member of the group had offered any undertaking to be personally liable for costs, in awarding security of $50,000.144 On the other hand, in Byron Shire Businesses for the Future Inc v Byron

Shire Council (1994) 83 LGERA 59, Pearlman J refused an application for security. She took into account the impecuniousness of the applicant;145 the public interest nature of the litigation and the ‘arguable merit’ of the case;146 the lack of certainty that a costs [page 942] order would be made, even if the applicants were unsuccessful;147 and the costs likely to be incurred in the litigation balanced against the overall costs of the proposed development. In Hunter Ecologically Sustainable Employment Group Inc v HEZ Pty Ltd (2003) 129 LGERA 344, the court, in refusing security, added the applicant’s special interest in the area the subject of the action,148 and promptness in bringing the action, as relevant considerations.149 21.42 The court may also have regard to the fact that if security is awarded and the appellants pull out of the case, the court itself will lose the opportunity to review a case of real and significant impact (including a merits review150), and that there is no likelihood of some other person funding the litigation. This concern may be heightened where the respondent has delayed in bringing an application for security, although the significance of this may be reduced where the plaintiff, or those standing behind it, clearly has the capacity to meet an order for security.151 Where the nature of the litigation may suggest that no order for security should be made, but the plaintiff’s conduct to date suggests an ongoing risk to the timely resolution of the proceedings, then the question may be finely balanced.152 In this case, the court may decide to order security conditional on the risk actually eventuating; for example, conditional on the plaintiff failing to file court papers within a stipulated time.153 A protective costs order may also effectively ‘cap’ the costs ultimately to be paid by an unsuccessful plaintiff and thereby limit any security to the amount set by the order: see 21.36. One further factor that may be relevant to the exercise of the court’s discretion to award security is whether the applicant has been granted legal aid, because to order security may render nugatory the purpose for which legal aid was granted.154

Legal aid and pro bono assistance 21.43 In Australia, legal aid used to be available for public interest environmental suits that had reasonable prospects of success. In New South

Wales, this was often used by applicants for equitable remedies to restrain breaches of environmental legislation, usually in connection with proceedings undertaken by the Environmental Defender’s Office (EDO), a public interest law firm, on behalf of the applicant.155 Governments, however, have progressively wound back the availability of legal aid for environmental enforcement to the point where the availability of legal aid cannot be relied upon for enforcement of environmental laws. [page 943] 21.44 An alternative to seeking legal aid funding is to seek the assistance of a lawyer who can offer ‘pro bono’ or reduced fee services. The Uniform Civil Procedure Rules 2005 (NSW), for example, confer a power on a court to order pro bono assistance to be provided to a litigant. If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for onward referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. Any such orders, however, need to be made bearing in mind that the resources of the panel are limited; that the lawyers whose names appear on the panel provide their services voluntarily; and that the court should ask them to give up their time and exercise their skill only in circumstances where there is an appropriate reason, for the overall administration of justice, to make the request.156 The Environmental Defenders Office (EDO) may also be able to assist in finding lawyers willing to take on public interest litigation on a no or reduced fee basis.157

1.

Preston, ‘Enforcement of Environmental and Planning Laws in New South Wales’, p 2, available on the Land and Environment Court website at .

2.

Judicial and merits review are discussed in Chapter 22.

3.

See 21.4.

4.

For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 123; Protection of the Environment Operations Act 1997 (NSW) ss 252 and 253; Native Vegetation Act 2003 (NSW) (NVA) s 41. Note, however, that although ‘any person’ in New South Wales may enforce breaches of environmental legislation, notwithstanding that a breach has been established an applicant is precluded from a grant of relief by failing to demonstrate that the breach or threatened breach is causing or is likely to cause harm to the environment. If relief would be available then the nature of that relief lies within the discretion of the court; for example, the court might order remedial relief aimed at mitigation but not elimination of environmental harm: McCullum v Sandercock [2011] NSWLEC 175.

5.

See 19.39 and following.

6.

Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 475 and 487.

7.

Great Lakes Council v Lani (2007) 158 LGERA 1.

8.

For example, Environment Protection Act 1997 (ACT) s 127(2) (authority has been requested and

failed to take action, and proceedings are in the public interest). Under the Environmental Protection Act 1994 (Qld) s 505(2), in addition to these requirements, the court must also be satisfied that the applicant is adequately able to represent the public interest, and that the person has made a written request to the minister or local government authority to take proceedings and that has not occurred within a reasonable time. 9.

For example, Protection of the Environment Operations Act 1997 (NSW) s 219.

10. Investigative advantages that accrue to regulators contemplating criminal proceedings do not apply to citizen prosecutions: see 20.28. 11. See Preston, ‘Laches in Public Interest Litigation’ (1986) 3 EPLJ 224. 12. See generally Preston, Environmental Litigation, Law Book Co Ltd, Sydney, 1989. 13. See 2.22. 14. For example, Environment, Resources and Development Court Act 1993 (SA) ss 28 and 28A; Integrated Planning Act 1997 (Qld) s 4.1.21; Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 123 and 124; Environment Protection Act 1970 (Vic) s 64A; State Administrative Tribunal Act 1994 (WA) ss 90 and 91; Environmental Protection Act 1986 (WA) s 69. 15. For example, Land and Environment Court Act 1979 (NSW) s 23; Protection of the Environment Operations Act 1997 (NSW) ss 252(6), (7) and 253(4), (5); Environment, Resources and Development Court Act 1993 (SA) s 28C. See also Brown v Environment Protection Authority & North Broken Hill Ltd (No 2) (1992) 78 LGERA 119 at 126. 16. In Tasmania, it has been held that an order of the Resource Management and Planning Appeal Tribunal will remain valid until declared invalid by the Supreme Court, and thus a person who does not comply with the order may be prosecuted for non-compliance even if the order was in fact made in breach of the legislation; see Krulow v Glamorgan Spring Bay Council [2013] TASSC 33. 17. See, for example, Land Use Planning and Approvals Act 1993 (Tas) s 64. A civil remedy, however, is not a sanction. In Bowden v Break O’Day Council (2008) 162 LGERA 49, a tribunal order that suggested a sanction rather than a remedy was held not to be allowable in civil proceedings and therefore beyond power. In any case, as a remedial order, the order was void for uncertainty. 18. This is generally because only a court of law can issue an injunction. In New South Wales and South Australia, the restraining order, which is a court order, is used specifically to restrain disposal of property by a person who is the subject of court proceedings. From this may flow an order for compensation or recovery of costs and expenses: Protection of the Environment Operations Act 1997 (NSW) ss 230–231; Environment, Resources and Development Court Act 1993 (SA) s 28A. In Queensland, the Planning and Environment Court may issue a restraining order to prevent unlawful conduct and couple that with a remediation order: Environmental Protection Act 1994 (Qld) s 505; and see Maroochy Shire Council v Barns [2002] QPEC 25. 19. Sometimes referred to as a ‘prohibitory injunction’: see, for example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 475(2) and 479(1). 20. For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 475(3); Environment Protection Act 1970 (Vic) s 64A; Maroochy Shire Council v Barns [2002] QPEC 25. 21. This is sometimes referred to as a ‘mandatory injunction’: see, for example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 475(4) and 479(2). 22. Contempt proceedings are not available against the Crown unless abrogated by statute: see, for example, Crowther v Queensland [2006] QCA 308. And on contempt, see further 20.121. 23. Crowther v Queensland (2006) 148 LGERA 220. 24. General principles on which the Land and Environment Court will exercise its discretion were laid down in Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 and ACR Trading Pty Ltd v Fat-

Sel Pty Ltd (1987) 11 NSWLR 67; see also Jarasius v Forestry Commission of New South Wales (No 1) (1988) 71 LGRA 79. 25. See, for example, Whitehouse v Remme (1988) 64 LGRA 375. 26. For example, whether the applicant stood by and allowed substantial expenditure to be incurred on a project before seeking relief: see Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43. 27. Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43. 28. Terminate Tulla v Environment Protection Authority [2007] VCAT 2332. 29. Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; Cohen v City of Perth (2000) 112 LGERA 234; Randwick City Council v Fuller (1996) 90 LGERA 380. 30. Liverpool City Council v Roads & Traffic Authority & Interlink Roads Pty Ltd (1991) 74 LGRA 265. 31. Terminate Tulla v Environment Protection Authority [2007] VCAT 2332. 32. See also McGrath, ‘The Flying Fox Case’ (2001) 18 EPLJ 540. The effect of this case is a clear admission that ministerial approval must be obtained for the culling of spectacled flying foxes in future fruit seasons; see also Department of the Environment and Heritage, ‘EPBC Act, Administrative Guidelines on Significance Supplement for the Spectacled Flying Fox 2003–2004’. 33. Castlemaine Tooheys Ltd v South Australia (1986) 67 ALR 553. This is particularly the case where legislation allows for compensation to be claimed by affected parties: see Richardson v Forestry Commission (1987) 73 ALR 589. 34. See, for example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 475 and 476. 35. Mees v Roads Corporation [2003] FCA 306 at [121] per Gray J. 36. See Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 90 LGERA 81. 37. Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management (1997) 93 LGERA 436; Bradto Pty Ltd v Victoria; Tymbook Pty Ltd v Victoria [2006] VSCA 89; Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103; Henderson v Hickling [2010] NSWLEC 213. 38. Williams v Homestake Australia Ltd (2002) 119 LGERA 55. 39. Tegra (NSW) Pty Limited v Gundagai Shire Council [2007] NSWLEC 806 at [39]; Bradto Pty Ltd v Victoria; Tymbook Pty Ltd v Victoria [2006] VSCA 89. 40. Corkill v Forestry Commission of New South Wales (1990) 71 LGRA 116; Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 117 (Aboriginal objects); Williams v Homestake Australia Ltd [2002] NSWLEC 155; Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 216; Williams v Director General of National Parks and Wildlife Service [2002] NSWLEC 235; Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806. 41. See also Richardson v Forestry Commission (1987) 73 ALR 589; Queensland v Commonwealth (1988) 77 ALR 291; Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806. 42. Schneiders v Queensland [2001] FCA 553. 43. See also McGrath, ‘The Fraser Island Dingo Case’ (2001) 18 EPLJ 269. 44. See Booth v Yardley [2006] QPEC 116; Save Our Figs Inc v General Manager of Newcastle City Council [2011] NSWLEC 207; Tasmanian Aboriginal Centre Inc v Secretary, Department of Primary Industries, Parks, Water and Environment [2014] FCA 1443.

45. In Booth v Bosworth [2000] FCA 1878, an interim injunction to prevent further electrocution of flying foxes on the respondent’s property was refused because of the short time frame involved. 46. European Bank Ltd v Evans Robb Evans & Associates [2010] HCA 6; 264 ALR 1 at [15]. 47. See further 21.23 and following. 48. (Unreported, LEC (NSW), No 40200, 1987). 49. (Unreported, LEC (NSW), Nos 40086 and 40139, 1988). 50. (1988) ELR 0104. 51. (Unreported, LEC (NSW), No 40208, 29 October 1990). 52. As was Stein J in Rundle v Tweed Shire Council (unreported, LEC (NSW), 30 March 1989, No 40241). See also Kirillova, ‘Injunctions in Public Litigation’ (1989) 6 EPLJ 48. 53. The Land and Environment Court Rules 2007 (NSW) r 4.2(3) now provides that the court may decide not to require the applicant to give any undertaking as to damages if it is satisfied that the proceedings have been brought in the public interest. See also, for example, Environmental Protection Act 1994 (Qld) s 505(4)(b); Supreme Court Rules 1970 (NSW) r 28.7; Environment Protection Act 1997 (ACT) s 131(b); Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 123(5). 54. See, for example, Kennedy v New South Wales Minister for Planning [2010] NSWLEC 177; Brunswick Valley Sports Association Inc v Byron Shire Council [2006] NSWLEC 71. 55. Section 478. 56. For example, where the deaths of a large number of a protected species are threatened if the activity in question is not restrained: see Booth v Yardley [2006] QPEC 116. 57. Stonnington City Council v Blue Emporium Pty Ltd [2003] VCAT 1954; Snowy Hydro Ltd v Metroll Victoria Pty Ltd [2007] VSC 188. 58. Stonnington City Council v Blue Emporium Pty Ltd [2003] VCAT 1954; Metroll Victoria Pty Ltd v Wyndham City Council (2007) 152 LGERA 437; Snowy Hydro Ltd v Metroll Victoria Pty Ltd [2007] VSC 188; Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806. 59. Great Lakes Council v Lani (2007) 158 LGERA 1; Terminate Tulla v Environment Protection Authority [2007] VCAT 2332; Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6. 60. See Crowther v Queensland [2006] QCA 308. 61. Forestry Commission of New South Wales v Corkill (1991) 73 LGRA 247; Blue Mountains Conservation Society Inc v Delta Electricity (No 3) [2011] NSWLEC 145; Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118. 62. Liverpool City Council v Roads and Traffic Authority (1991) 74 LGRA 265; Citizens Airport Environment Association Inc v Maritime Services Board (1993) 79 LGERA 254; Great Lakes Council v Lani (2007) 158 LGERA 1. 63. Phillips v Greater Shepparton City Council (Red Dot) [2005] VCAT 653 (declaration that a permit invalid refused because it would undermine a statutory scheme providing alternative remedies); Egan v Glenelg Shire Council (Red Dot) [2005] VCAT 2700; Wellington v Surfcoast Shire Council (includes Summary) (Red Dot) [2011] VCAT 2317 (declaration went beyond what might be achieved through enforcement alone). 64. F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) (2007) 158 LGERA 250; DirectorGeneral, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118. 65. Seaton v Mosman Municipal Council (1996) 93 LGERA 1; and see Starkey v South Australia [2011] SASCFC 164 (invalidity of ministerial permit).

66. See also Blue Mountains Conservation Society Inc v Delta Electricity (No 3) [2011] NSWLEC 145. 67. Hill Top Resident Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4); Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118. 68. Great Lakes Council v Lani (2007) 158 LGERA 1; Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6. 69. Traditionally, the term ‘prerogative’ refers to the powers of the Crown to exercise powers that do not depend upon statute, or exceed the powers of ordinary citizens. In this context, it refers more to the common law powers of a court to issue relief against errors of law made in the exercise of executive power. The prerogative writs, to the extent they are not excluded by statute, may be available independently of a statute, not only to the Crown but also to private citizens. 70. See Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473. In Starkey v South Australia [2011] SASCFC 164, the writ issued to a minister in connection with procedural fairness in the consideration and issue of a mining authorisation. 71. See Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 94 LGERA 380. Although the remedies sought in this case were declarations and an injunction, the principles are apposite; see also Re MacTiernan; Ex parte Coastal Action Coalition Inc (2005) 30 WAR 138. 72. See Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 84 LGERA 113. This principle also applies to the other discretionary remedies, particularly the declaration and other prerogative writs of certiorari and prohibition. 73. For example, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 480 states that the powers conferred on the Federal Court under s 475 to issue injunctions for breaches of the legislation do not limit any other powers of the court. 74. Preston, ‘Enforcement of Environmental and Planning Laws in New South Wales’, p 2, available on the Land and Environment Court website at . 75. A preliminary decision or recommendation, if it is one which constitutes a condition precedent to an exercise of power that would affect legal rights, would have sufficient effect on legal rights to attract certiorari: Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 141 LGERA 106. 76. For example, Starkey v South Australia [2011] SASCFC 164. 77. For example, Lowy v Land and Environment Court of New South Wales [2002] NSWCA 353; Environment Protection Authority v Land and Environment Court of New South Wales [2004] NSWCA 50. 78. See further 7.14. See also South-West Forests Defence Foundation (Inc) v Lands and Forest Commission (1995) 86 LGERA 365 (writs of certiorari and prohibition unsuccessfully sought to quash an amendment to regional forest plans and prohibit effect being given to those plans); Re Edwards; Ex parte Pearls Pty Ltd [2003] WASCA 148 (application for a writ of certiorari to quash a listing on a heritage register dismissed). 79. See 22.31. 80. See Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 141 LGERA 106. 81. For example, Protection of the Environment Operations Act 1997 (NSW) ss 246 and 247; Water Act 1989 (Vic) s 15(1)(c). 82. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 500. 83. For example, Protection of the Environment Operations Act 1997 (NSW) s 249. 84. Whether the power to make a remediation order may only follow a finding of a breach, or whether

such an order, agreed by the parties, may be assented by the court to without any finding of breach, appears still to be open to question: see Newcastle City Council v Wescombe [2009] NSWCA 265. 85. Uniform Civil Procedure Rules 2005 (NSW) Pt 40, r 40.6. This extends to an officer of a corporation who is not complying with an order: Uniform Civil Procedure Rules 2005 (NSW) Pt 40, Div 2, r 40.6(2). 86. For example, Fairfield City Council v Adams (No 2) [2010] NSWLEC 45 (fine of $15,000); Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195 (imprisonment for three months). And on contempt of court, see 20.121. 87. For example, Federal Court Act 1976 (Cth) s 43; Land and Environment Court Act 1979 (NSW) s 69; Environment, Resources and Development Court Act 1993 (SA) ss 29 and 44. The Land and Environment Court Rules 2007 (NSW) reg 4.2(1) state: ‘The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest’. Relevant considerations for an award of costs under the Judicial Review Act 1991 (Qld) include the public interest: see ss 49 and 50. 88. See Oshlack v Richmond River Council (1998) 96 LGERA 173. 89. McLaren v Lewis (No 2) [2011] NSWLEC 176. 90. Latoudis v Casey (1990) 170 CLR 534; Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365; Brown v Mornington Peninsula Shire Council (2004) 140 LGERA 11; Baulkham Hills Shire Council v Hahn (2008) 160 LGERA 157; Cleveland Power Pty Ltd v Redlands City Council [2013] QPEC 17. 91. Baulkham Hills Shire Council v Hahn [2008] NSWLEC 184. 92. Ballymont Pty Ltd v Ipswich City Council (2002) 124 LGERA 373. 93. See 22.9. 94. Sustainable Planning Act 2009 (Qld) s 456. The defined circumstances include frivolous and vexatious conduct; delay and obstruction; and an assessment manager, referral agency or local authority not taking an active part in the proceedings where it had a responsibility so to do: see also Resource Management and Planning Tribunal Act 1993 (Tas) s 28. On the meaning of ‘frivolous and vexatious’, see Mudie v Gainriver Pty Ltd (No 2) [2002] QCA 546; Sinnathamby v Purcell [2002] QPEC 65; Millmerran Shire Council v Smith (No 2) [2008] QPEC 113. 95. ‘Environmental Law: Its Place in the System’ in Proceedings of the First NELA/LAWASIA International Conference on Environmental Law, June 1989, p 79; see also Wilcox, ‘The Role of Environmental Groups in Litigation’ (1985–6) 10 Adel LR 41; Cripps J, ‘Administration of Social Justice in Public Interest Litigation’ in Proceedings of the International Conference on Environmental Law, National Environmental Law Association, 1989. And see also Fox J in Kent v Cavanagh (1973) 1 ACTR 43 at 55; Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607: ‘It seems to me undesirable that responsible citizens with a reasonable grievance who wish to challenge Government action should only be able to do so at risk of paying costs to the Government if they fail. They find themselves opposed to parties who are not personally at risk as to costs and have available to them almost unlimited public funds. The inhibiting effect of the risk of paying costs is excessive and not in the public interest’. 96. See also Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning (No 2) (2008) 163 LGERA 132. 97. The New South Wales Court of Appeal decision denying such a right (see Richmond River Council v Oshlack (1996) 91 LGERA 99) was, therefore, reversed by the High Court. On the Court of Appeal’s decision see Bates, ‘Costs of Litigation in Public Interest Environmental Cases’ (1996) 13 EPLJ 335. See also Baird, ‘Public Interest Groups and Costs: Have the Floodgates been Opened’ (1998) 15 EPLJ 294.

98. See also McClure v Mayor and Councillors of the City of Stirling (No 3) [2009] WASC 247. 99. See Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 8) [2011] FCA 175. See also Dwyer, ‘Standing, Adaptive Management and the Queensland Lungfish’ (2009) 6 MqJICEL 129. 100. Per Logan J in Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) [2011] FCA 661 at [6]. 101. See Nettheim v Minister for Planning (unreported, LEC (NSW), No 40139, 28 September 1988); Darlinghurst Residents’ Association v Elarosa Investments Pty Ltd (1992) 75 LGRA 214; Citizens Airport Environment Association Inc v Maritime Services Board (1993) 79 LGERA 254; Oshlack v Richmond River Council (1994) 82 LGERA 236. 102. McGinn v Ashfield Council [2011] NSWLEC 105. 103. Oshlack v Richmond River Council (1998) 96 LGERA 173; Friends of Hinchinbrook Society Inc v Minister for the Environment (No 5) (1998) 99 LGERA 140. In Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254, the fact that the litigation was brought to advance the public interest in matters of significant public concern was held not to outweigh the fact that the applicant failed on all grounds of challenge; see also Timbarra Protection Coalition Inc v Ross Mining NL (1998) 98 LGERA 211; Kennedy v Director-General, National Parks and Wildlife Service (No 2) (2002) 122 LGERA 84; Great Lakes Council v Lani (2007) 158 LGERA 1; Lansen v Minister for Environment and Heritage (No 3) (2008) 162 LGERA 258; Kennedy v Director-General, Department of Environment and Conservation (No 2) [2007] NSWLEC 271. 104. See also Oshlack v Richmond River Council (1998) 96 LGERA 173. 105. See also Northern Inland Council for the Environment Inc v Minister for the Environment [2014] FCA 216 (unsuccessful applicants instructed to pay 80 per cent of costs of respondents). 106. Uniform Civil Procedure Rules 2005 (UCPR) r 42(1). The Land and Environment Court Rules prevail over the UCPR only to the extent of any inconsistency between them: Civil Procedure Act s 11; UCPR r 1.7 and Sch 2. 107. Oshlack v Richmond River Council (1998) 96 LGERA 173; Drake-Brockman v Minister for Planning (No 2) [2007] NSWLEC 718. 108. Upheld by the Court of Appeal in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWCA 353. 109. It was held in Shoalhaven City Council v South Coast Concrete Crushing and Recycling Pty Ltd [2010] NSWLEC 80, that the applicant should not be disentitled to a costs award merely because it had pursued litigation about the lawfulness of the respondent’s activities even though it knew that planning approval had been sought from the minister and could be granted. 110. See also Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346 at [171]–[173]; Kennedy v Stockland Developments Pty Ltd (No 3) [2011] NSWLEC 249. 111. See Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113 (broad public interest in ecologically sustainable development and climate change flood risk); Save Little Beach Manly Foreshore Inc v Manly Council [2013] NSWLEC 155 (action brought to protect a valuable and scarce resource; namely, open space on a harbour foreshore). 112. See Martin v New South Wales Minister for Mineral and Forest Resources [2011] NSWLEC 38. 113. By contrast, the test was applied in Hooper v Port Stephens Council (No 3) [2010] NSWLEC 178 to reject the applicant’s claim that the proceedings had been brought in the public interest. See also John Williams Neighbourhood Group Inc v Minister for Planning [2011] NSWLEC 100 (application to preserve local amenity). 114. Snowy River Alliance Inc v Water Administration Ministerial Corporation (No 2) [2011] NSWSC 1132.

115. See also Ku-ring-gai Council v Minister for Planning (NSW) (No 2) [2008] NSWLEC 276. 116. Although this is an important consideration, it is not by itself determinative: Oshlack v Richmond River Council (1998) 96 LGERA 173; Kennedy v Director General National Parks and Wildlife Service (No 2) (2002) 122 LGERA 84. 117. Snowy River Alliance Inc v Water Administration Ministerial Corporation (No 2) [2011] NSWSC 1132. 118. Oshlack v Richmond River Council (1998) 96 LGERA 173; Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254; Plumb v Penrith City Council (2003) 126 LGERA 109; Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365; Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178; FCAFC 175; Minister for Planning v Walker (No 2) [2008] NSWCA 334; Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231. 119. Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; McGinn v Ashfield Council [2011] NSWLEC 105 at 59. 120. Darlinghurst Residents’ Association v Elarosa Investments Pty Ltd (1992) 75 LGRA 214; Hill Top Residents Action Group Inc v Minister for Planning (No 3) [2010] NSWLEC 155; Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231. 121. Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333 at 54. 122. McGinn v Ashfield Council [2011] NSWLEC 105. See also Cleveland Power Pty Ltd v Redlands City Council [2013] QPEC 17 (ulterior and improper underlying purpose for (unsuccessful) application to be joined to proceedings). 123. Plumb v Penrith City Council (2003) 126 LGERA 109. 124. Timbarra Protection Coalition Inc v Ross Mining NL (1998) 98 LGERA 211; Plumb v Penrith City Council (2003) 126 LGERA 109. 125. Indemnity costs compensate the successful party for solicitor and client costs far beyond what could reasonably have been expected to have been incurred if the litigation had been genuinely pursued: see Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365. See also Citizens Airport Environment Association Inc v Maritime Services Board (1993) 79 LGERA 254. 126. Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323. 127. See also Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council (No 2) [2010] NSWLEC 252. 128. Macedon Ranges Shire Council v Thompson [2009] VSCA 209. 129. That is, the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) and the Land and Environment Court Act 1979 (NSW). 130. Although in this case the respondent’s claim for security for the costs of an appeal brought by the unsuccessful applicant was refused: see Maritime Services Board of New South Wales v Citizens Airport Environment Association Inc (1993) 83 LGERA 107. On security for costs, see further 21.39. 131. Per Basten JA in Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263 at [219]. 132. See Justice Nicola Pain, ‘Protective Costs Orders in Australia: Increasing Access to Courts by Capping Costs’ (2014) 31 EPLJ 450. 133. Civil Procedure Act 2005 (NSW) ss 58 and 60.

134. See also Olofsson v Minister for Primary Industries [2011] NSWLEC 137. 135. See, for example, Oshlack v Iron Gates Pty Ltd (No 2) (1997) 95 LGERA 55. 136. In Queensland, an ‘adverse submitter’ under the Sustainable Planning Act 2009 (Qld) may not be a ‘plaintiff’ for these purposes; see Fanirata Pty Ltd v Logan City Council [2013] QPEC 55. 137. Save Little Manly Beach Foreshore Inc v Manly Council [2013] NSWLEC 155. 138. See Brown v Environment Protection Authority & North Broken Hill Ltd (No 2) (1992) 78 LGERA 119; Save Little Beach Manly Foreshore Inc v Manly Council [2013] NSWLEC 155. 139. The proceedings in Central Queensland Speleological Society Inc v Central Queensland Cement Pty Ltd [1989] 2 Qd R 512 were discontinued for this reason. 140. Uniform Civil Procedure Rules 2005 (NSW) r 59.11; and see Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113; Save Little Beach Manly Foreshore Inc v Manly Council [2013] NSWLEC 155. 141. And see Save Little Beach Manly Foreshore Inc v Manly Council [2013] NSWLEC 155. 142. Uniform Civil Procedure Rules 2005 (NSW) r 42.21(1)(e); otherwise security should only be awarded in ‘special circumstances’: rr 50.8, 51.50. This enables the court to guard against the ‘straw’ plaintiff of limited means being used to enable interested parties to take action without risking costs. However, note the comments of Mahoney J in Citizens Airport Environment Association Inc v Maritime Services (1993) 79 LGERA 254 at 282 discussed further at 21.35. 143. See Tinda Creek Spiritual and Environment Centre v Baulkham Hills Shire Council (1998) 100 LGERA 432. 144. See also Reid’s Farms Pty Ltd v Murray Shire Council [2009] NSWLEC 171. 145. Impecunious plaintiffs are not, on that ground alone, immune from an order for security: see Melville v Craig Nowlan & Associates Pty Ltd (2002) 119 LGERA 186. 146. See Sharples v Minister for Local Government [2008] NSWLEC 67. 147. See, for example, Byron Shire Businesses for the Future Inc v Byron Shire Council (1994) 83 LGERA 59; see also Darlinghurst Residents’ Association v Elarosa Investments Pty Ltd (1992) 75 LGRA 214. 148. See also Kennedy v Stockland Development Pty Ltd (No 2) [2011] NSWLEC 10. 149. See also Williams v Pardoe (2003) 132 LGERA 54. 150. See Motorplex (Australia) Pty Ltd v Port Stephens Council (No 2) [2007] NSWLEC 770. 151. Save Little Beach Manly Foreshore Inc v Manly Council [2013] NSWLEC 155. 152. See Kennedy v Stockland Development Pty Ltd (No 2) [2011] NSWLEC 10. 153. Sharples v Minister for Local Government [2008] NSWLEC 67. 154. See Rajski v Computer Manufacturers and Design Pty Ltd (1983) 2 NSWLR 443. 155. See . 156. Kelly v Mosman Municipal Council [2010] NSWCA 370. 157. See .

[page 945]

Chapter 22 Challenging Environmental Decision-making Introduction 22.1 Decisions made by environmental planning and protection authorities and managers of natural resources, as regulators of the statutory schemes for environmental protection, may be formally challenged in one of two ways: by an administrative appeal, generally referred to as a ‘merits appeal’ or ‘merits review’, and by judicial review. Of these, only the second is a challenge to the legality of the decision, a form of civil enforcement. The merits appeal is a challenge to the wisdom, propriety or substantial fairness, rather than the legality, of the decision. It is common for both types of appeal to be heard by a specialist environmental court or tribunal, although in some jurisdictions administrative appeals tribunals also hear merits appeals.1 Appeals on questions of law (there are no further appeals from merits determinations) will then be directed to relevant higher appeal courts. Speaking of the distinction between merits and judicial review in DrakeBrockman v Minister for Planning [2007] NSWLEC 490, Jagot J said (at [124]): The Land and Environment Court has separate merits and judicial review functions … In its merits review function the court makes the decision it finds correct or preferable on the evidence, weighing up for itself the competing considerations. In its judicial review function, the Court may not trespass on the merits or impugn a decision made within the necessary legal boundaries. This distinction and consequential limitation in judicial review proceedings is to be ‘constantly borne in mind’.

Internal review or reconsideration 22.2 As an alternative to merits review, or sometimes as an intermediate step between a decision and a merits review, legislation may provide for a

request for reconsideration of a decision (internal review); for example, whether approval for an action is needed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA),2 or asking a council to review a decision on an application for development [page 946] consent.3 In Victoria, the Appeal Tribunal may invite a decision-maker to reconsider a decision.4 Another way of easing pressure on courts and tribunals may be to establish a committee or series of committees that can hear appeals from decision-making about particular matters.5 Processes for alternative dispute resolution may also succeed in resolving conflicts without the necessity for a formal court hearing.6

Merits appeals 22.3 Sometimes, decision-making, particularly in respect of the issue of licences to develop or use natural resources, may be challenged on the merits7 by persons to whom the legislation gives such rights.8 A merits appeal concentrates on the quality of the decision, not its legality. A legal challenge, on the other hand, only examines how, as a matter of law, a decision was reached — not, from a policy or judgmental point of view, whether it was good, bad or indifferent. It is common for applicants for licences to be afforded an opportunity for merits appeal to a specialist court or tribunal.9 The grounds of the argument will invariably be that the licence imposes conditions on the licensee that are not reasonable, that are not necessary or are too onerous. The appeal may, of course, also be against a refusal of a licence. The applicant will be asking the appeal body to review the facts surrounding the decision and make a fresh determination in favour of the applicant. Opportunities for objectors to a proposal, that is, ‘third parties’,10 to have decisions reviewed, are, however, much more limited. The most common opportunity for merits appeal for objectors arises in respect of local authority or ministerial approvals for significant development.11 However, other decision-making processes, for example, the taking of, or dealing with, threatened species and ecosystems,12 may be appealed. [page 947] Once again, the objector is asking the appeal body to review the original decision and substitute it with a decision in favour of the objector. The

purpose of the objector appeal is generally to deny the issue of a licence or permit to the applicant, or at the very least impose more onerous conditions on the licensed activity. In Victoria (and unusually), the Victorian Civil and Administrative Tribunal (VCAT) is instructed (where appropriate) to have regard to the number of objectors in considering whether the use or development may have a significant social effect. The conferring of opportunities for merits appeal is discussed in more detail in other chapters of this book according to subject matter. Where an appeal is lodged, either by an applicant or an objector, then often any other person whose interests are affected may also apply to become a party to the appeal.13 22.4 Assessors or commissioners with professional backgrounds appropriate to the subject matter of the appeal usually undertake merits review, although a judge may sit with a commissioner, or even determine the case alone. The fact that non-legally qualified personnel may determine merits appeals, in itself distinguishes these cases from legal enforcement, where only legally qualified judges may hear appeals. No further appeal on the merits is possible from the decision of a specialist review body. They are the final arbiters of the merits of the proposal. This contrasts, of course, with an appeal on a point of law, where following a determination by a court or tribunal, appeals may be directed to an appeal court and ultimately, with leave, to the High Court. By contrast to legal proceedings, commissioners are not bound by concepts of legal precedent; that is, they are not bound to follow previous decisions of the court or tribunal. Indeed, since merits appeals are generally only determinable on their own peculiar facts, it would be difficult to justify such a concept. On the other hand, there is as much need for consistency in decisionmaking in the merits review process, in so far as that is possible, as there is a need for certainty in legal processes. Accordingly, commissioners have no less onerous a duty to give reasons for decisions than judges.14 22.5 Since 2003 the New South Wales Land and Environment Court (NSWLEC) has started to enunciate or explain the planning principles on which its decisions are based; and the LEC website now lists cases that contain planning principles.15 These principles effectively guide and inform the future decision-making of the court in merits appeals. [page 948] For example, the question ‘what regard should a consent authority give to

the principles of ecologically sustainable development’ is addressed in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237. A senior commissioner of the court has said that: … even where a decision is expressed only with reference to a particular case, the reasons are likely to be based on criteria that have wider application and are implicit in the decision. When the decision-maker expresses the criteria that were applied in the decision, the decision becomes more transparent. The application of the same set of criteria in similar planning situations also assists in making decisions more consistent with each other. This is probably the greatest benefit of including principles in merit decisions, since the acceptance and respect with which merit decisions are held depends largely on their consistency.16

A system of ‘guidance decisions’ has also been initiated by VCAT for similar reasons.17 22.6 The main advantage of a merits appeal, at least to the person seeking review, is that it gives a person who is dissatisfied with the original decision a ‘day in court’ to test the suitability of that decision and the conditions applicable to a project. At a more objective level, the availability of review on the merits may encourage decision-makers not to take ‘short-cuts’ in decision-making, but to adopt a broad and analytical approach that informs the substance of the decision and supports the conclusions.18 Inadequacies in approach or analysis may be exposed and corrected, and original decisionmaking should become better for it, thus limiting the need for appeals. If an appeal does eventuate, then because of the perceived independence of the adjudicators the final verdict will be accepted (if not supported) by all parties. For objectors, the most common criticism is that merits appeals are not available except for a limited number of significant proposals; and in cases where government regards development as of state or regional significance, or ‘critical’, then even limited rights of appeal may be eroded or removed in their entirety.19 From a regulator’s perspective, merits review is often resisted because it lengthens and increases the costs of the decision-making process and may result in decisions that do not accord with agency policy; and persons not connected with either the issue or the objectives or culture of the agency making the decision generally undertake the reviews. This latter circumstance, of course, may also be argued to be an advantage. Whether merits appeals actually deliver better decision-making is hard to assess, and opinions are often formed on the basis of success or failure.20 [page 949] 22.7 Environmental merits appeals are generally always treated as hearings de novo, that is, as a fresh or new application.21 The appellate court or tribunal is assessing the development itself, not reviewing the decision of the

relevant authority.22 This does not mean, however, that the appellate court or tribunal can simply ignore the constraints that weighed upon the original decision-maker. The appeal is still to be considered in the light of the statutory criteria and planning or other relevant policy documents that apply to the decision.23 This means that the appellant has to justify to the appeal body why, for example, the licence sought should or should not be granted, or why the conditions of a licence or administrative order should not be imposed or changed. This again is unlike an appeal in the strict legal sense, where the law is determined by reference to the original facts. Naturally, any party to a merits appeal will need to support their case with facts and opinions, but essentially it is for the applicant to justify the proposal.24 In practice, merits appeals make up a considerable proportion of the work of specialist environmental courts and tribunals. Examples are given in other chapters of this book. 22.8 A merits appeal may also be combined with a legal challenge to a particular proposal. The advantage of the specialist appeal bodies in environmental law is that they often have jurisdiction to determine both types of appeal, and in this event both judges and assessors, sitting together, may hear an appeal. Where an appeal body is required to make a legal determination, however, appeals on points of law will lie to superior courts of law.

Costs in merits appeals 22.9 Where a party has the option of either merits or legal review, one significant consideration that favours parties instigating merits review rather than legal challenge is the question of costs. In law, costs follow the event, unless special circumstances [page 950] can be raised that justify a departure from this rule; this was discussed at 21.23 and following. In merits appeals, costs do not normally follow the event, and costs orders are not made against losing parties unless there is some compelling reason to the contrary.25 Indeed, legislation may expressly state that the parties should bear their own costs of the proceedings, unless the proceedings are tainted by some form of frivolous, vexatious or otherwise unreasonable conduct.26 The reason for such an approach is generally to avoid discouraging proceedings that the legislation has, in a sense, endorsed by

providing a right of appeal; and also to discourage an adversarial approach to litigation27 that would not be consistent with legislative stipulations that appeals should be conducted with less technicality than legal challenges. The special circumstances in which an award of costs will be made generally turn on whether a party has been guilty of some abuse of process or unreasonable conduct;28 for example, persisting with a case with no real hope of success;29 generating doubt and uncertainty and in effect inviting the litigation;30 or some other form of vexatious conduct.31 In two cases, Port Stephens Council v Sansom (2007) 156 LGERA 125 and Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 156 LGERA 150, however, the New South Wales Court of Appeal did warn that it would be improper for a court to fetter itself by a policy, guideline or presumption, to a principle that costs awards should not ordinarily be made in merits appeals.32 Full weight must always be given to the circumstances of the case, and characterising a case simply as a merits appeal, and applying a presumption that costs would not ordinarily be awarded, was too broad a classification and displayed an approach that went beyond taking into account the character of the proceedings. In Thaina, the nature of the appeal, an appeal against imposition of a prevention notice,33 could be said to be of a different character to other merits appeals. [page 951] 22.10 The Land and Environment Court Rules 2007 (NSW) r 3.7 now state that the court ‘is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances’, and then goes on to define some of the circumstances in which this would be fair and reasonable.34 The ‘fair and reasonable’ test was used in the previous version of the Rules (1996), which were under consideration in the Port Stephens Council and Thaina cases, but the 1996 Rules did not indicate in what circumstances it might be fair and reasonable to award costs in merits appeals. A useful examination of the case law on this point was undertaken by Preston CJ in Grant v Kiama Municipal Council [2006] NSWLEC 70 at [15], and the summary of the circumstances set out there in which it would be fair and reasonable to make a costs order were subsequently approved by the Court of Appeal in the Port Stephens Council case. These circumstances include: (a) where the proceedings cease to have the character of merits review, such as where a central issue is whether there is power to grant the approval

sought at all, although there may be exceptions where no order is appropriate; (b) where the matter the subject of the costs application involves only a preliminary question of law; though, again there may be exceptions where no order is appropriate; (c) where a party fails to provide or delays unreasonably in providing information or documents required as part of the application for approval, including statements required by the relevant statute (such as an environmental impact statement (EIS), species impact statement or statement of environmental effects), or statements or information required by an environmental planning instrument, or information or documents centrally relevant to the application and necessary to enable a consent authority to gain a proper understanding of and to give proper consideration to the application; (d) where a party has acted unreasonably in the conduct of the proceedings such as: (i) delaying unreasonably in taking action or making proper concessions or agreeing to proper amendments to originating process, pleadings, evidence or interlocutory directions and orders; or (ii) unnecessarily protracting the proceedings, either during the interlocutory phase in preparation for the hearing (such as by failing to comply with court directions and orders in relation to pleadings, evidence or production of documents or failing to attend or being illprepared when attending callovers or directions hearings) or at the hearing (such as by prolix argument, protracted examination or crossexamination of witnesses, repetition of evidence from experts or other witnesses, adduction of irrelevant evidence, innumerable or baseless objections to evidence, adopting a scattergun approach by raising every conceivable objection to a proposed development or elevating matters of minutiae and trivia to issues to major significance); (e) where a party has acted unreasonably in circumstances leading up to the proceedings, such as effectively inviting the litigation; [page 952] (f)

where the proceedings or the defence of the proceedings has been commenced or continued in circumstances where the applicant or respondent respectively, properly advised, should have known that it had no chance or very poor prospects of success; and

(g) where a party conducts its case in the proceedings for extraneous

purposes, such as where a consent authority contests an appeal against its decision not to grant an approval for reasons unassociated with the proceedings, not in good faith, in dereliction of duty or not on a rational basis. Success in the proceedings alone does not justify the making of a costs order in favour of the successful party.35 The Land and Environment Court Rules 2007 (NSW) r 3.7 now incorporates in r 3.7(3) a list that reflects the indicative guidelines formulated under the 1996 rule and articulated in Grant v Kiama Municipal Council.36 The criteria set out in r 3.7(3) are not prescribed criteria; they are matters that the court ‘might consider’ in addressing the question whether an award of costs might be ‘fair and reasonable’ in the circumstances.37 Neither are these criteria exclusive, there may be other circumstances that suggest that the making of a costs order would not be fair and reasonable in the circumstances; for example, unreasonable conduct by the successful party.38 So long as a party raises issues of merit that are at least ‘arguable’ then costs are unlikely to be awarded against an unsuccessful party.39

Evidence and expert witnesses 22.11 Both legal and merits proceedings depend upon the evidence adduced,40 and in environmental cases may well depend upon the evidence or opinions offered by experts. The quality of merits review is also, particularly in complex cases, likely to be strongly influenced by the quality of the evidence presented. Expert witnesses are generally employed to represent the interests of the parties appearing before the courts or tribunals, and even though the New South Wales Land and Environment Court Practice Direction, for example, makes the point that an expert witness has an overriding duty to assist the court impartially,41 objectivity can be an issue. Courts, though, can be empowered to appoint their own witnesses,42 and perhaps more should be made of this power. [page 953] The Land and Environment Court Practice Direction on Court Appointed Experts 200543 makes the point (r 12) that although the court may appoint experts it expects the parties to try to agree on the person or persons to be appointed. Failing such agreement the parties must provide the court with the names of up to three acceptable experts and the court will then make the

appointment. No particular criteria are stipulated for appointing experts; however, it is clear that specialised knowledge, qualifications and experience in a recognised field of human endeavour are relevant criteria, as well as objectivity, impartiality and the necessary resources to act in this capacity.44 On the question of impartiality, it was said in Pittwater Council v A1 Professional Tree Recycling Pty Ltd [2008] NSWLEC 325 at [11] that: The authorities support the following propositions … First, a mere family, personal or business relationship (including that of a retainer as an investigator), even of a kind that might reasonably cause an expectation of lack of impartiality, is insufficient of itself to lead to rejection of expert evidence. Secondly, and exceptionally, there may be additional factors which justify rejection on the ground of clear lack of capacity to bring the requisite degree of impartiality to the expert’s reasons, either because the evidence is then inadmissible or in the exercise of the court’s discretion. In my opinion, that an expert witness is or was an employee of the party retaining the expert, has investigated the matter prior to commencement of proceedings, and has recommended that proceedings be taken, are insufficient factors, of themselves, to lead to rejection of the expert’s evidence.

However, where the conduct of a witness leads to a real risk of significant prejudice to another party, then the court may not allow the evidence to be adduced.45 It has also been said that where witnesses are appearing for government agencies with a longstanding regulatory role in respect of licence applications, then they have a higher than ordinary responsibility to promptly finalise and disclose the expert evidence to be relied upon and not then depart from it, otherwise they open themselves to costs orders. In order for evidence tendered as expert opinion evidence to be admissible in court it must be demonstrated that the witness has specified training, study or experience in a field of specialised knowledge.46 This does not mean, however, that the court will [page 954] necessarily allow expert evidence to be adduced; the calling of expert evidence is generally to be restricted to that which is reasonably required to resolve the proceedings ‘having regard to the admonition of just, quick and cheap’.47 This can lead to arguments between the parties about how many experts are necessary; however, in the end the court has to weigh up the necessity to adduce relevant evidence against lengthening the conduct of the proceedings or adding to its costs.48 Evidence may also not be admitted if it has been obtained improperly or unlawfully. However, while a court or tribunal would not wish, for example, to condone a trespass onto property to obtain relevant evidence, the court will still have a discretion whether to admit it if the desirability of admitting the

evidence may outweigh the undesirability of admitting evidence that has been obtained in the way that particular evidence was obtained.49

Alternative dispute resolution 22.12 The procedural and cost hurdles of tribunal or court action, as well as concepts of empowerment, public interest and confidentiality, have led to more attention being given to alternative methods of resolving environmental disputes.50 Negotiation, mediation and arbitration are three possibilities. Negotiation involves the parties in dispute hammering out their own differences. Mediation is a more structured form of negotiation, involving an independent mediator who can help the parties to identify and focus on the real issues in dispute, and assist parties to come up with their own solutions. Arbitration involves a more formalised procedure of hearings before an arbitrator appointed by the parties, who set the parameters for the issues to be arbitrated and are bound by rulings made. All of these non-judicial approaches to dispute resolution have, to a greater or lesser degree, the advantages of informality, accessibility, fewer delays and less cost. Since the parties themselves have taken a direct hand in negotiating a solution, it is likely to be more readily acceptable and enduring than an ‘imposed’ solution. Alternative dispute resolution processes can also be applied to civil enforcement actions as well as merits appeals. Of the three alternatives, arbitration is likely to be the least favoured in resolving environmental disputes because it still retains some of the flavour of the formal court or tribunal process. 22.13 However, negotiation and mediation can only work effectively where both parties are in an equal bargaining position. [page 955] That may be difficult where the proponent of a project controls the information flow. Mediated settlements may also fail to reflect the wider public interest, and the process of resolution and the conclusion may not be subject to public scrutiny. In adversarial court or tribunal proceedings, there may be better prospects of bringing out all the facts, dealing more satisfactorily with complicated technical and scientific issues, and serving the public interest by reaching a considered conclusion provided by an independent ‘umpire’. Nevertheless, alternative dispute resolution mechanisms have become more

important in resolving administrative disputes,51 particularly at a pre-hearing or pre-decision stage by helping to delineate and focus on the issues in dispute and offering the possibility of agreement being reached in the process. Legislation empowers, indeed may require, specialist courts and tribunals to call conferences of parties to an appeal to try to at least delineate the issues of concern or, better still, to reach a compromise or settlement.52 New South Wales has introduced both conciliation53 and neutral evaluation processes. Neutral evaluation is where an evaluator attempts to identify and reduce the issues of fact and law in dispute, and, by assessing the strengths and weaknesses of the parties’ case, offer an opinion on the likely outcome of the proceedings, including findings of liability and any award of damages.54 The court may refer any matter for conciliation or neutral evaluation, and may do so either with or without the consent of the parties to the proceedings.55 22.14 A court may accept a mediated settlement as a final resolution of the appeal. It will make orders, as appropriate, to give effect to any agreement or arrangement [page 956] arising out of the mediation, so long as the court is satisfied that the settlement is within the power of the court and is appropriate. This means that the court or tribunal will not necessarily be bound by a settlement reached at a pre-hearing conference; the appeal body is still entitled to make further inquiry to satisfy itself about the details of any compromise. For example, in Great Lakes Council v Lani (2007) 158 LGERA 1, the court imposed a civil penalty double that agreed between the parties because the court considered the amount agreed did not reflect the objective gravity of the conduct involved. 22.15 In Western Australia, the State Administrative Tribunal adopts a process of ‘facilitative dispute resolution’ (FDR).56 Unlike processes of mediation in other courts and tribunals, which are carried out by external mediators or court officers, FDR is carried out by the tribunal members themselves. The knowledge and experience of the mediators is said to often result in the identification and narrowing of issues more quickly and effectively than if the mediator had no knowledge of the topic in dispute.57

Judicial review

22.16 One of the long-held roles of the courts is standing between individual rights, usually well supported by common law, and excesses of bureaucratic power. Public servants gain their powers from legislation, and these powers are conferred upon them to be used in the promotion of the public interest. The principles underlying judicial review are therefore essentially accountability and transparency; that is, that decision-makers should be accountable to the public for the decisions they take, and that the substance of those decisions, and the processes followed in making decisions, should be open to public review. Grounds on which government decision-making may be open to review have been developed by the courts on the basis that statutes impliedly prefer that decision-makers should make decisions according to identifiable, objective standards. In other words, judicial review is based on statutory interpretation, and that being so it must yield to express indications to the contrary. However, since statutes do not usually indicate that decisionmaking should comply with principles laid out by these grounds of judicial review, the courts in effect have to assume that, unless parliaments specifically try to deny relief via judicial review, the legislation recognises it and means to enable it. In practice, some of the most important cases in environmental law have succeeded because courts have been prepared to apply common law principles of judicial review. [page 957] 22.17 Judicial review is a form of civil enforcement, directed usually at administrative decision-making,58 though it may involve decision-making of a legislative character.59 The law presumes that when parliament invests regulators with powers to make decisions, it intends that those powers should be exercised for the purposes for which they were given and in a reasonable manner. Any excess or misuse of power, such as failing to take into account all relevant considerations before making a decision, may lead a court to invalidate an administrative decision. Judicial review of administrative decisions, therefore, sets a sort of judicial performance test for administrative decision-making. This form of review concentrates on the way the decision was reached and whether it was lawful, not on the merits of the decision itself. In that regard, it is, therefore, fundamentally different to merits review. All environmental decision-making is potentially subject to judicial review. The principles underlying judicial review are essentially accountability and transparency; that is, that decision-makers should be accountable to the public for the decisions they make, and that the substance of those decisions,

and the processes followed in making the decisions, should be open to public review. On the other hand, decision-makers must be allowed to get on with the job entrusted to them by parliament. Thus, judicial review must balance the public interest in open and accountable government with the need for administrators to implement government policies effectively and decisively. The courts recognise that administrative decision-making is not generally undertaken by legal experts, nor by those who are constantly looking over their shoulder for possible legal challenge. They must be wary, therefore, of concurring with an approach to review, sometimes asked of them by complainants, that would [page 958] enthusiastically dissect administrative decision-making in a desperate bid to discover legal error.60 22.18 The judiciary must also be careful about trespassing on the merits of administrative decisions in the guise of judicial review. It is clear, for example, that where a decision involves complex policy issues such as determining the balance between development of natural resources and environment protection, it is less likely to be subject to judicial review, because exercise of such a power could be seen as policymaking by the courts or the exercise of a quasi-legislative power rather than strict adherence to the purpose of judicial review, which is to keep a close eye on transgressions of administrative discretion.61 Decisions about kangaroo culling,62 changing the policy on the protection of species of game birds from one of partial to total protection,63 removal of a provisional entry on a state heritage register64 and cessation of logging operations and creation of a new national park,65 for example, have all been determined to be matters of policy, not open to judicial review. In Ilic v City of Adelaide [2010] SASC 139, it was said that the provisions of a local planning instrument, in this case a development plan, would not be open to judicial review on grounds seeking to challenge the minister’s view as to the best way to facilitate sustainable development and environmental protection. Such issues reflect matters of policy and evaluative judgments that are the province of local councils and the minister to determine. Similarly, making a decision about whether a place meets the statutory criteria for heritage status involves an evaluative approach, and while it would not be impossible that a court could adopt such an approach, assisted by expert evidence, it is more likely that parliament would intend, by establishing statutory consultative processes, to leave such a decision to the minister as a matter of social policy.

22.19 Principles of judicial review may be based on the inherent jurisdiction of the superior courts, or may be brought under statutory provisions that supplement or simplify, rather than replace, common law principles of review. At Commonwealth level, the ‘application for judicial review’ available under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), has effectively replaced general law review. There is also judicial review legislation in Queensland, Tasmania and the [page 959] Australian Capital Territory.66 Other jurisdictions continue to rely on common law principles of review. In practice, since legislation mostly codifies common law principles of review, judicial review is approached in similar ways in all jurisdictions. 22.20 Broadly speaking, the courts have determined that the standard expected of an administrative decision is that, before the decision is made, the persons empowered to make the decision must have taken into account all relevant information, excluded irrelevant matters, and reached a conclusion that, on the weight of the evidence, is reasonable in the circumstances. Statutory procedures that lay down elements of the decision-making process, such as giving notice to the public, must also be complied with. There are a number of grounds on which decisions67 may be challenged under principles of judicial review, and the ADJR Act conveniently lays out the various grounds of review68 (at s 5): (1) (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that procedures that were required by law to be observed in connection with the making of the decision were not observed; (c) that the person who purported to make the decision did not have jurisdiction to make the decision; (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made; (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; (f)

that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g) that the decision was induced or affected by fraud; (h) that there was no evidence or other material to justify the making of the decision; (j)

that the decision was otherwise contrary to law.

(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power;

[page 960] (c) an exercise of a power for a purpose other than a purpose for which the power is conferred; (d) an exercise of a discretionary power in bad faith; (e) an exercise of a personal discretionary power at the direction or behest of another person; (f)

an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; (h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and (j)

any other exercise of a power in a way that constitutes abuse of the power.

A number of these grounds have been relied on in environmental litigation. They are not, however, mutually exclusive, and may overlap to provide several grounds of appeal in any particular case. A number of these grounds are discussed in this chapter.

Reasons for decisions 22.21 Since judicial review seeks to challenge the decision-making process, it is vitally dependent on evidence as to how that decision was made. Gathering such evidence is not an easy task. It will be easier to scrutinise decisions for possible irregularities if decision-makers are required to give reasons for decisions when asked. However, there is no rule of common law that requires decision-makers to provide reasons for decisions that they have made.69 Any requirement to supply reasons, therefore, will depend upon statutory obligations. Under the ADJR Act, for example, a ‘person aggrieved’ has the right to require the decision-maker to set out ‘findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision’.70 This is obviously a provision of some importance to a would-be applicant for review of a decision. It is very difficult to challenge a decision for failure to take into account relevant matters, for example, if the material on which the decision is based is not readily available. On the other hand, although knowledge of the material on which the decision has been made is helpful, failure to obtain reasons is not

necessarily fatal to a case. Although it seems that the courts will apply a presumption of regularity to decision-making,71 such a presumption is clearly rebuttable. If a decision-maker [page 961] refuses to give reasons, it is open to the court to infer that the decision-maker has no good reasons to support the decision and has, therefore, acted in excess of power.72 Where the process of decision-making is not disclosed, then findings of fact on which the decision is based may be unsupported, leading to the conclusion that an error of law has been committed.73 22.22 Failure to supply reasons may reduce the number of grounds that may be relied on in challenging the decision, but not defeat the challenge altogether. In Sidney Harrison Pty Ltd v City of Tea Tree Gully (No 2) (2001) 112 LGERA 327, for example, Debelle J said that if reasons for a decision were not known, then the decision could still be set aside for being legally ‘unreasonable’.74 If the reasons were known, then they could be challenged for failure to take into account relevant considerations.75 Properly drawn-up reasons for a decision can, of course, also help to establish to the court the legality of that decision.76 Decision-makers should be careful, however, about relying on a statement of reasons drawn up by departmental officers to explain the decision it has recommended; subsequent adoption of those reasons may not in truth establish that those were the reasons at the time the decision was made.77 22.23 Reasons for a decision may also be gleaned, in the context of court proceedings, from responses to interrogatories directed to the decision-maker; and, in New South Wales, for example, by calling in aid the Land and Environment Court Rules 2007 r 4.3, under which a public authority may be required to furnish a written statement setting out reasons for a decision that include: (i)

the public authority’s findings on any material questions of fact, and

(ii) the evidence on which any such findings were based, and (iii) the public authority’s understanding of the applicable law, and (iv) the reasoning processes that led to the decision.

It has also been held that where the decision-maker is an appeal tribunal, then judges and commissioners of that tribunal have an obligation to provide reasons that address the principal contested issues joined between the parties, not just set out their subjective thought processes in coming to their

decision.78 Failure by a lower court to provide adequate reasons for a decision may also trigger an error of law.79 [page 962] 22.24 Freedom of information legislation80 may also prove fruitful in uncovering background material and departmental advice, correspondence and memoranda associated with the making of a decision. Although this legislation is also subject to exemptions from disclosure, it may nevertheless be useful in obtaining information and identifying documents that might later be subpoenaed in court proceedings.81 Where sensitive or high profile environmental issues are in dispute, however, claims for exemption may be expected. For example, in Re Angel and Department of Arts, Heritage and Environment (1986) 9 ALD 113, the applicant applied for release of a number of documents supplied by the Tasmanian woodchip industry. The Commonwealth claimed exemption on the grounds that the information had been communicated in confidence by the State of Tasmania, that release would thus damage Commonwealth–state relations, and that the flow of business information to the Commonwealth in the future could be seriously prejudiced by such release. The Administrative Appeals Tribunal agreed with these submissions and determined that there was insufficient evidence to the contrary to suggest that the documents should nevertheless be released in the public interest.82 In Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 4) [2010] NSWLEC 91, the plaintiffs had argued that the public interest in the principle of open justice should defeat confidentiality orders sought by Coal Mines Australia to restrict public access to its expression of interest (EOI) in the Caroona mining exploration licence. The court concluded that because particular statements and data in the EOI were confidential, confidentiality orders should be made that would continue to restrict access to the entire EOI; but that a redacted EOI should be produced that would allow public access to the EOI without the confidential material. Such an order would not offend the principle of open justice.

Legislative denial of judicial review (‘privative clauses’) 22.25 Frustrated by judicial review of government decisions, governments, through parliament, may occasionally attempt to oust, or at least limit, the courts’ ability to review government decision-making. This commonly occurs

where environmental issues are contested and government fears that court action by ‘third parties’ might hold up decision-making or impede actions undertaken by governments or those authorised by governments. For example, the Forestry Act 2012 (NSW) s 69ZA states: This section applies to the following statutory provisions: … (b) a provision of an Act that gives any person a right to institute proceedings in a court to remedy or restrain a breach (or a threatened or apprehended breach) of the Act or an instrument made under the Act…

[page 963] (2) Proceedings may not be brought under a statutory provision to which this section applies if the breach (or threatened or apprehended breach) to which the proceedings relate is as follows: (a) a breach of this Part (including a breach of any forest agreement), (b) a breach of an integrated forestry operations approval (including a breach of the terms of any licence provided by the approval), (c) a breach of an Act or law that arises because any defence provided by any such licence is not available as a result of a breach of the licence, (d) a breach of the Act that includes the statutory provision (including a breach of an instrument made under that Act) if the breach relates to forestry operations to which an integrated forestry operations approval applies.

22.26 The courts take such a step very seriously, because it effectively undermines their ability to fulfil one of their major functions, which is to protect the public against bureaucratic excesses and hold decision-makers accountable for carrying out their public functions. Accordingly, submissions that seek to rely on such attempted exclusions must expect to undergo detailed interpretative analysis. Statutory provisions that seek to limit or bar judicial review are known as ‘privative clauses’. In Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2014] FCA 117, Logan J (at [65–66]) placed reliance on privative clauses by executive-dominated governments as part of a broader trend to subordinate Parliament and evade the courts: It is worth recalling that the United Kingdom parliamentary committee report to which the Full Court referred in RG Capital Radio v ABA was responsive to views expressed extra-judicially by the then Lord Chief Justice of England and Wales, Lord Hewart of Bury in his book, The New Despotism (London: Ernest Benn Limited, 1929). The ‘new despotism’ to which the Lord Chief Justice referred was the tendency in public administration in those times, as His Lordship saw it, ‘to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme’ (p 19). His Lordship saw evasion of the Courts in an increasing tendency to consign quasi-judicial decision-making to the public service and

subornation of Parliament in the growth of delegated legislation. It has been observed that His Lordship’s book ‘caused a constitutional and political storm’: C Morris C and Malone R, Regulations Review in the New Zealand Parliament [2004] Macq L J 2. The passage of time has not diminished the relevance of Lord Hewart’s views. So far as the courts are concerned and by way of examples, this may be demonstrated by a continuing attraction to executive dominated parliaments of privative clauses, an attraction often misplaced in terms of their efficacy …

A basic rule applied by the courts to privative clauses is that parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies. Accordingly, privative clauses will be strictly construed. For example, environmental legislation, while it may admit of the possibility of judicial review of decisions taken under the legislation, may seek to place time limits [page 964] on rights of challenge.83 This is particularly the case where applicants for development consent or other approvals to conduct activities need to get on with their project or activity and require some certainty about the validity of their consents.84 The question arises whether an applicant for review will always be refused the ability to seek review once the time limit has expired, or whether the court has some residual authority to hear a case despite it being brought outside the time limits imposed by statute. 22.27 Before the recent decision of the High Court in Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531, the seminal authority on privative clauses was the High Court decision in R v Hickman; Ex parte Fox Clinton (1945) 70 CLR 598. Under the Hickman principles, a privative clause can only operate to bar proceedings where the decision under question is a bona fide attempt by the body whose decision is challenged to exercise its power; where the decision relates to the subject matter of the relevant legislation; and where it is reasonably capable of reference to the power conferred on that body. For example, if a decision exceeds the jurisdiction or power to make it (jurisdictional error: see 22.45), then it might not satisfy the test of being a bona fide attempt to exercise the power.85 The granting of development or other approval without legislative power to do so, for example, is a jurisdictional error;86 but a decision that overlooks relevant evidence produced only a matter of weeks before an application for development consent is determined may well, in the circumstances, not support an allegation of lack of bona fides.87 Failure to comply with essential statutory processes that precede a determination may also preclude the application of a privative clause;88 for example, where an advertisement of an

application for development did not properly describe the project as required by the regulations, the court held that a claim would not be precluded by a privative clause.89 22.28 The nature of the exclusion will, however, clearly depend on interpretation of the relevant statutory provisions. If a requirement in the statutory scheme is not [page 965] ‘essential’, ‘indispensible’, ‘imperative’ or ‘inviolable’, then it is much more likely that the time limits imposed for challenging a breach of such a requirement will operate to bar the commencement of proceedings after the expiration of the period set down in the statute. Affording procedural fairness90 may, for example, be interpreted as an ‘inviolable’ requirement;91 but the requirement to accord procedural fairness may not apply to nonexhaustive matters cast in broad terms of generality that must be considered before a decision can be made.92 In Minister for Planning v Walker (2008) 161 LGERA 423, the New South Wales Court of Appeal held that such a privative clause, contained in the Environmental Planning and Assessment Act 1979 (NSW) (EPAA),93 should not be considered as precluding relief where a purported approval of a project or concept plan was not in truth an approval; for example, because the approval was prohibited under the legislation, or because consideration had not been given to matters mandated by the legislation. Indeed, whether or not matters were ‘mandated’, failure to follow simple and basic requirements set out in the legislation might not be consistent with a bona fide attempt to exercise the power. Further, although not explicitly stated in the legislation, consideration of the ‘public interest’ was central to the task of fulfilling functions under a statute such as the EPAA. Any attempt to exercise powers in which the minister does not have regard to the public interest cannot be a bona fide attempt to exercise the power. The duty to consider principles of ESD in decision-making is one of the most obvious manifestations of the ‘public interest’. Hodgson J said (at [56]):94 … principles of ESD [ecologically sustainable development] are likely to come to be seen 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, and thus become capable of avoiding decisions.

22.29 In Greendene Development Corp Pty Ltd v Environmental Protection

Authority (2003) 134 LGERA 228, the question arose whether a time limit would bar EA by the competent authority if a provision of the Act requiring notification about assessment within the period set down was not complied with. The Western Australian Court of Appeal, interpreting the legislation as not intending to bar assessment if the provision was not complied with, said (at [66] per McKechnie J): … it seems to me that the legislature intended only to impose a duty on the EPA to act within the specified time, with the consequence that a failure to comply with that duty might result in a mandatory injunction95 or a writ of mandamus96 requiring it forthwith to make a decision and to give the requisite notices. Were the situation otherwise, then,

[page 966] in a case of inadvertence or oversight, the EPA would effectively be precluded from assessing a proposal which might have far-reaching environmental consequences … that could not have been intended.97

22.30 Although many decisions have been declared not to be affected by privative clauses under the Hickman principles, the effect of Kirk is likely to make it even easier to avoid them. The decision in Kirk was to the effect that state legislation that seeks to remove the core supervisory jurisdiction of state courts will be read down so as to preserve constitutional validity or, where reading down is not open, struck down as beyond power. Preston98 concludes that the effect in practice of Kirk will be: … that privative provisions will be less effective in protecting administrative decisions from judicial review. Administrative decisions that previously would have satisfied the Hickman principle and not breached imperative duties or inviolable restraints, and hence would have been protected by privative provisions, now may be able to be challenged if they involve other jurisdictional error. An example may be a decision challenged on the relevant/irrelevant matters grounds. The precise extent of loss of protection will depend on what are the boundaries of jurisdictional error. As Groves notes, those boundaries are vague and imprecise. I would venture that the vast majority of grounds of review most commonly invoked in judicial review challenges would involve jurisdictional error of one type or another. Very few decisions would involve nonjurisdictional error of law appearing on the face of the record and hence very few decisions would be protected by a privative provision. The result in practice, as Groves observes, is likely to be that privative provisions ‘may exist but will do so in name only’.99

It was accepted, for example, in Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217 at [47], that the effect of Kirk in relation to a provision that denied access to the court except upon the approval of the minister could not oust the court’s judicial review function if an error was alleged to be jurisdictional.

On the other hand, it must be remembered that Kirk was concerned with review of the decision of a court, not of a non-judicial decision-maker. Neither was it concerned with clauses that seek to limit the period in which relief is available rather than suppress it altogether. In these circumstances such a limitation may remain effective.100 [page 967]

Natural justice or procedural fairness 22.31 The rules of natural justice, more often referred to as procedural fairness, postulate that before a decision is made, persons who might be affected should be given an opportunity to state their case or make submissions. The subsequent decision must also be supported by evidence and made objectively on its merits without preconceived bias. In other words, a person likely to be affected by a decision should be accorded a fair hearing from an unbiased decision-maker. In Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133 at 154; [1999] NSWCA 196, Mason P remarked that: [I]t is now settled law that, when a statute confers power to destroy, defeat or prejudice the rights, interests, and legitimate expectations of a person, the rules of natural justice or procedural fairness regulate the exercise of that power unless excluded by ‘plain words of necessary intendment’.101

22.32 Whether the duty to accord procedural fairness arises in any particular case, and what that might entail, depends on the circumstances. However, the courts have been vigilant in ensuring that principles of natural justice are upheld in cases involving revocation or modification of individual rights, such as the right to hold a licence or permit. For example, in Ackroyd v Whitehouse [1985] 2 NSWLR 239, the plaintiff’s trapper and fauna dealer licences were cancelled without notice and without allowing him any hearing or giving any reasons.102 The court held that the principles of natural justice should have been observed to the extent of giving the licence holder notice of the intention to cancel, stating the grounds for so doing, and allowing the licence holder an opportunity to respond.103 Similarly, where the rights of a person may be affected by the issue of an administrative order or notice, such as a clean-up notice or amendment to an approval, then principles of natural justice will normally apply, unless clearly displaced by the statute. In Liverpool City Council v Cauchi (2005) 145 LGERA 1, it was held the issuing authority had a duty to inform the

respondent that the issue of a notice was being considered and afford an opportunity to the respondent to make submissions about why the notice should not issue.104 [page 968] It has also been held that a decision-maker may have a duty to alert parties to proceedings to important issues that the party might otherwise overlook.105 22.33 Rather different considerations arose in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218. The respondent owned mining interests in stage two of the Kakadu National Park in the Northern Territory. The area was nominated for world heritage listing under the Convention for the Protection of the World Natural and Cultural Heritage. This course of action could have led to the respondent’s mining operations being declared unlawful in that area. The respondent had made extensive submissions to the federal government concerning its perceived need to preserve mining interests in stage two. It was argued that the plaintiff could not nominate stage two for inclusion on the World Heritage List without giving the respondent an opportunity to be heard. On appeal, the Federal Court agreed that executive action of this type was not immune from judicial review but, on the evidence, the respondent had in fact been given adequate opportunity to present its case. The obligation to accord natural justice in respect of cabinet or executive council decisions would be satisfied by allowing written submissions to be made to the minister.106 22.34 Where applications for approvals and licences are involved, rather than renewals or protection of existing interests, then it will be more difficult to establish any ‘right’ to a hearing,107 though legitimate expectations may be created by the decision-making procedures. For example, in Merman Pty Ltd v Parker, Minister for Minerals & Energy [1987] WAR 159, the Minister for Minerals and Energy refused an application for a quarry licence after requiring an EIS to be prepared, but without considering that statement before making the decision. The court held that the requirement to prepare an EIS created a reasonable expectation that the report would at least be considered. Statements made by government agencies that consultation about development proposals or even policies108 will take place may also create legitimate expectations,109 while the existence of regular practices of consultation may also give rise to legitimate expectations that such procedures will continue.110 For example, in Carriage v Stockland Development Pty Ltd (No 4) (2004) 135 LGERA 68, the plaintiff successfully established a legitimate

expectation, based on the conduct of the New South Wales Director-General of National Parks and Wildlife and his [page 969] department, that he would be consulted about issues concerning Aboriginal heritage that were raised by a proposed development.111 Consents issued by the Director-General to the proponent were therefore declared by the court to be invalid. Similarly, in Anderson v Director-General, Department of Environment and Conservation (2006) 144 LGERA 43, it was held that National Parks and Wildlife consultation policy and other documented procedures, together with established practices of consultation, raised in the applicants a legitimate expectation that they would be consulted before the respondent issued a consent to destroy Aboriginal objects. It is also clear, however, that public bodies may negate or terminate legitimate expectations based on substantive policies, and procedural practices or assurances, so long as notice, as necessary, is given to those who had a legitimate expectation that the policy or procedure would be followed.112 If the decision-maker does not intend to follow the procedure created by the expectation, then the person affected has a right to be informed.113 In the absence of any undertaking or representation by a government authority, policy statement or rule, or regular practice that could give rise to such an expectation, however, then no expectation will arise.114 22.35 Where consultation is required, then it must be carried out properly; that is, at the formative stage before the decision-maker has effectively predetermined the issue and thus rendered consultation futile,115 and with sufficient information to make the consultation meaningful.116 It must also be undertaken within a reasonable time, and adequate time to enable a response to be made must also be given.117 For example, in Starkey v South Australia [2011] SASCFC 164, the Full Court held that the exercise of statutory power conferred upon the minister pursuant to the [page 970] Aboriginal Heritage Act 1988 (SA) s 23 to authorise interference with an Aboriginal site or object in the context of the issuance of an exploration permit for minerals, is conditional upon the observance of the principles of procedural fairness in relation to a request for delegation of the minister’s powers to traditional owners in accordance with s 6. A breach of those principles will invalidate a decision that has been made. In this case the delay

of seven months in contacting the traditional owners to inform them of misgivings the minister had in delegating her powers amounted to a failure to accord procedural fairness and deprived the traditional owners of the opportunity to do as the Act intended, namely to protect and preserve Aboriginal heritage. Failure to take into account public submissions, or merely paying ‘lip service’ to those submissions, may effectively be tackled by other grounds of judicial review such as failure to take into account relevant considerations.118 22.36 The right to be consulted or to be heard, however, must also be balanced against the need to allow decision-makers to make effective and efficient decisions. There has to be a limit to the extent to which the rules of procedural fairness require decision-makers to provide information or accord further opportunities for consultation during the decision-making process. For example, where an opportunity to make submissions about a proposal has been granted, and an assessment has been made taking into account those submissions, requirements to accord procedural fairness would not normally extend to giving objectors a second opportunity to make further submissions in relation to the assessment of the matter.119 Neither will modification of a development proposal that is not a radical transformation of the original proposal attract further rights to be consulted or re-notified, or require a fresh EIS.120 Also, where persons who may be affected by an exercise of power are numerous,121 difficult to identify in advance, or part of an amorphous group rather than being identifiable as individuals, it may be easier to infer that natural justice would not demand that individuals be notified and afforded an opportunity to be heard.122 For example, in Geelong Community for Good Life Inc v Environmental Protection Authority (EPA) (2008) 159 LGERA 438, the plaintiffs, who were a community group representing local concerns about the effect of industrial emissions on human health and the environment, claimed that the EPA had denied them natural justice by [page 971] failing to give effect to their legitimate expectation that, as an objector to an application to amend a discharge licence, the EPA should have given them a fair hearing before making the decision to approve the application. Since the decision-making processes were not directed to the applicants as individuals or as part of a distinct body of persons, it could not be said that they had any legitimate expectations to support their claim. They were not affected in a direct or immediate way, nor in a manner substantially different from the

public at large.123 Impacts that are indirect and general and affect persons merely as members of the public, or a class of the public, often indicate that matters of policy and public interest will outweigh individual interests in such a case.124 22.37 The duty to accord natural justice may not apply, also, to all stages of decision-making, at least where later stages do not take into account material additional to an earlier stage at which the opportunity to be heard has been extended.125 For example, if a party has been given an opportunity to make submissions about what permit conditions should be imposed on a grant of development consent, there is no further right to be consulted about what conditions the approval authority intends to impose.126 22.38 Proper consideration of a matter by departmental officers may relieve a minister from making an independent scrutiny of the issue.127 In Western Australia v Bropho (1991) 74 LGRA 156, an Aboriginal person who had been afforded an opportunity to be heard before a committee, which had to decide whether to recommend to the minister that a development proposal should proceed, was held to have no legitimate expectation to be heard again by the minister, at least where the minister relied totally on the advice provided by the committee and did not take into account any material extraneous to the report.128 Where material is used in addition to that provided by such a committee or other advisory body, or relevant new material comes to the attention of the decision-maker, however, then a duty to accord a further hearing may arise.129 However, if the minister merely uses additional material to reinforce a conclusion already reached and does not introduce new subject matter, no duty to accord further rights of representation may arise. This is particularly so where the system of administration needed to refer the additional material back to objectors would be rendered interminable and inefficient.130 [page 972] Circumstances that dictate the need to make emergency or urgent decisions may also affect the right to be consulted or the content of that right.131 22.39 Rules about according a fair hearing apply in equal measure to courts and tribunals as they do to other decision-makers. In Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd (2007) 155 LGERA 322, a decision of the Queensland Land and Resources Tribunal, recommending the approval of a new open cut coalmine, was overturned by the Queensland Court of Appeal because, in making its decision, the tribunal

had used documents about a matter that, although not obviously of importance to the decision-maker, had in fact been so; and it was a matter that the appellants had had no opportunity to address before the tribunal. Specialist courts hearing criminal proceedings132 or merits appeals133 under the legislative scheme may also be specifically directed, indeed would be expected, to observe principles of natural justice. For example, if a judge or commissioner intends to determine proceedings by reference to matters beyond the issues identified by the parties, then the parties should be given notice of those additional matters and accorded the opportunity to be heard on them.134 It has also been held that a court considering increasing a sentence on appeal should give due warning to an offender so that the appeal might be withdrawn;135 and that a primary judge has a duty to unrepresented litigants to ensure they properly understand the proceedings and consequences in relation to matters of mitigation that the offender may place before the court136 and costs. 22.40 The common law requirements to accord natural justice may be supplemented or substituted by statutory procedures designed to give notice of licence applications, proposals and decisions.137 This may accord opportunities for public participation, particularly by procedures for consultation and the ability to challenge decisions on the merits.138 It is a matter of interpretation to what extent [page 973] statutory processes for participation will reveal an intent to replace common law principles of natural justice.139 A legislative intention to exclude natural justice, however, requires clear manifestation and plain words of necessary intendment;140 it cannot be assumed or spelt out from indirect references, uncertain inferences or equivocal considerations.141 However, where legislation and relevant environmental planning or protection instruments effectively create a code for rights of public participation in the determination of strategic planning instruments or licence applications, it is easier to conclude that the statutory scheme has effectively precluded the application of common law principles of natural justice.142 In such cases, a party may not, therefore, claim more by way of participation than the statute has allowed.143 On the other hand, provisions in legislation that require the giving of notice, for example, to adjoining landowners, of development proposals, may underline the intent of the legislation to accord common law principles of natural justice.144 Where legislation accords rights

of consultation to persons likely to be affected by proposed developments or activities, this would generally demand provision of information and a right to respond. However, the extent and manner of consultation required must be construed by reference to the legislation, and failure to consult will not necessarily lead to invalidity of a planning scheme as a result of an omission limited to a very small number of people.145 The duty of a decision-maker, including a tribunal or court exercising a judicial function or hearing a merits appeal, is to determine the matter impartially on the facts and not be swayed by pre-judgment, interest or association. A reasonable apprehension of pre-judgment by a judge, commissioner or assessor on issues of merit that are required to be determined afresh, may lead to the subsequent decision being set aside on appeal.146 [page 974] A ‘reasonable apprehension’ of bias was described by the New South Wales Court of Appeal in McGovern v Ku-ring-gai Council (2007) 153 LGERA 308 as whether a fair-minded lay observer may (not would)147 reasonably apprehend the decision-maker may not bring an impartial mind to the exercise of the relevant power.148 Further, that bias by ‘pre-judgment’ meant the decisionmaker was not open to persuasion. The ‘fair-minded lay observer’ is one who is properly informed,149 but is not assumed to have a detailed knowledge of the law.150 In respect of council or ministerial (rather than judicial) decisionmaking,151 a fair-minded observer would expect an absence of personal interest in the decision;152 a willingness to give genuine and appropriate consideration to the application, and alternative approaches;153 an adherence to matters required by law to be taken into account; and consideration of any recommendations of council officers or advisers. 22.41 Surrendering a power of independent judgment because of a contractual obligation may amount to apprehended bias.154 A conclusion of apprehended bias may also be founded by an assumption by the decisionmaker of an undertaking, whether contractually binding or not, to exercise a statutory discretion in a particular way. In Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140, it was held that, because of the minister’s public commitment to a particular outcome, his freedom to determine an application on its merits had been limited, causing fair-minded lay observers to reasonably apprehend that the minister may not have brought an impartial and unprejudiced mind to the determination of an application for development consent.

On the other hand, it has been held that the process of pre-application consultation between prospective applicants and local councils is consistent with the powers and [page 975] responsibilities of a municipal council acting as responsible authority under planning legislation. The question of apprehended bias, be it in the form of pre-judgment, prior association or otherwise, must be considered by reference to the statutory arrangements for the grant of planning permits by municipal councils.155 22.42 It must also be recognised that municipal councillors, unlike judges, are elected individuals with political ties, and that prior statements by councillors before a decision is made, while giving rise to an appearance of bias, will not satisfy the test unless the court concludes that those views are an expression of a final opinion on a matter that cannot be dislodged.156 It has also been said that the application of principles of bias ought not be applied to a panel hearing a planning matter as if it were a court; and that a person should not be excluded as a panel member simply because he or she might previously have advised or had associations with government, even if that government was the proponent of the current application.157 However, the fair hearing obligation requires that the panel do more than just listen benignly to the submissions put before it, and then apply its expertise only later when preparing its report. If there is a particularly novel or unusual specialist issue arising in the panel’s mind from a particular submission that may be determinative to the panel’s reasoning or recommendation on that submission, and which the submitter cannot reasonably expect will arise from the normal interpretation and weighing of the material by the panel after the hearing, then the panel should make a reasonable attempt to investigate or test that issue with the submitter during the panel hearing.158

Other procedural irregularities 22.43 Legislation often lays down the procedures that must be followed by decision-makers in reaching a decision. Together, these may supplant the rules of procedural fairness discussed above, in effect creating statutory processes for delivering procedural fairness. Commonly, statutory procedures for licensing activities involve directions for giving notice to the general public

about a proposal, referral to other agencies, consideration of public and agency submissions, procedures for assessing potential environmental impacts and time frames within which decisions must be made. Statutory requirements for undertaking activities will often refer also to the necessity, for example, to follow the procedures agreed on in a management plan. [page 976] While specialist courts and tribunals may often, in their discretion, refuse to remedy minor technical breaches or procedural irregularities on the basis that substantial compliance with the statutory scheme will suffice,159 procedures that reach to the heart of decision-making or regulatory processes, such as those governing the integrity of the decision-making process, public participation, submission of EISs or service of administrative orders, are more likely to be regarded as mandatory, not merely directory, because they are an essential component of the statutory scheme for procedural fairness. Substantial compliance with the statutory instructions will, therefore, not be enough, and the correct procedures will be rigorously enforced.160 In Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307, the court stressed that issues with respect to inconvenience for decisionmaking must be balanced against important provisions that went to the integrity of the decision-making process (in this case declarations of pecuniary interest). Failure to declare decision-making affected by such issues invalid would diminish incentives for compliance, and for provisions that concern integrity and important minimal procedural requirements — this is an important consideration. In Helman v Byron Shire Council (1995) 87 LGERA 349, for example, the belated submission of a fauna impact statement (FIS), required by the legislation to accompany an application for development consent, was held to invalidate the subsequent issue of consent. This was because the requirement to submit the FIS with the application was an essential precondition to the grant of consent.161 Consultation in the preparation of a regional environmental plan has also been held to be an essential precondition for the effective validity of such a plan.162 22.44 In Norvill v Chapman (1995) 133 ALR 226, a statutory requirement under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), that the minister should ‘consider’ various issues, was interpreted to require a substantial personal involvement by the minister that could not be met by the minister effectively delegating the consideration of these issues to an adviser. More recently, in Newchurch v Minister for Aboriginal Affairs and

Reconciliation [2010] SASC 245, an obligation to consult with traditional owners before authorising damage, disturbance or interference [page 977] with an Aboriginal site, under the Aboriginal Heritage Act 1988 (SA) s 23, was held not to have been adequately fulfilled when requests for further consultations were ignored.163 In Scurr v Brisbane City Council (No 5) (1973) 133 CLR 242, the High Court stressed that procedures for public participation not only avail objectors with the right to take part in public planning processes, but, importantly, are also a means of heightening the quality of decision-making by exposing decision-makers to additional information and viewpoints that they might not otherwise enjoy. Public notices that purport to fulfil statutory requirements for notification, therefore, must be adequate to properly inform persons who are entitled to receive such notice, of the details or nature of the proposal, so that they can decide whether to respond or appeal.164 If the notice is inadequate it may mislead persons who would otherwise have made submissions into believing that the proposal does not need to be investigated any further.165 In such circumstances, strict compliance with the form of the notice generally is required.166 Similarly, legislative provisions that allow for public representations on a proposal, and state that these must be considered by the decision-maker, will be strictly enforced.167 Similarly, administrative notices that enforce compliance with the statutory scheme must follow correct procedure or risk being declared invalid and of no effect.168 Again, however, such a conclusion will depend on the construction of the statute in question, and any conclusion that substantial rather than strict compliance may suffice under the statutory scheme is an issue on which judicial minds may differ.169

Want or excess of power 22.45 A claim that the decision-maker purported to exercise a power he or she simply did not have, or exceeded the scope of a power conferred, will inevitably lead the court to scrutinise the legislation under which it is claimed the power could be exercised. [page 978] In interpreting the statutory powers actually conferred on the decision-

maker, the court may have regard to: any preconditions that have to exist before the decision-maker has jurisdiction to make the decision;170 the precise wording of the statutory powers conferred on the decisionmaker;171 the express objects of the legislation, as expressed in the objects clause;172 the implied purposes of the legislation, derived from a consideration of its various statutory provisions, the overall structure of the legislation and the intent and purposes for the attainment of which the legislation was enacted;173 and external aids such as parliamentary debates and clause notes where allowed by the Acts Interpretation Acts, generally to resolve ambiguities in the legislation.174 Where an official or a decision-maker is proposing to act in an unlawful manner, then the remedy of prohibition would be available to prevent it.175 In practice, want or excess of power may take a number of forms, discussed below.

No jurisdiction to make a decision (want of power) 22.46 Before the decision-maker can take a decision, he or she must have jurisdiction to make that decision. Once this is established, then the extent of power actually conferred can be assessed. ‘Jurisdiction’ simply means whether the decision purported to be made was actually entrusted by statute to that particular decision-maker and what preconditions for the exercise of the powers were stipulated by the legislation. Whether an error goes to jurisdiction or not depends on interpretation of the legislative intent and the statutory context in which the decision was made.176 Often, a statute requires that certain facts must exist (a ‘pre-condition’) before a decision-maker will have power to make a decision. Such facts are commonly referred [page 979] to as ‘jurisdictional facts’.177 Jurisdictional facts enliven jurisdiction, by contrast to facts that are to be determined in the course of exercising jurisdiction.178 In Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2008] FCAFC 3 the court said (at [21]):

To constitute a condition precedent, the relevant fact or circumstance must exist independently of, and be objectively determined prior to, the exercise of the power or performance of the duty by the decision-maker. The starting point for ascertaining whether a fact or circumstance is a jurisdictional fact must be the words of the statute, read in their context. Although there is no strict verbal formula, the existence of a jurisdictional fact is frequently signalled by the use of expressions such as ‘where “x” exists’, or “when “x” exists’ or ‘if “x” exists’, then a person is empowered or obliged to act or refrain from action. The ‘x’ in this format is the relevant fact or circumstance which is a condition precedent to the exercise of a power or performance of a duty. In some instances, the fact or circumstance may be subjectively expressed. Examples of this include ‘where in the opinion of the Minister “x” exists’ or, ‘if in the opinion of the Minister “x” exists’ or ‘when the Minister is satisfied “x” exists’, then the Minister is to exercise the power or perform the duty. Such language often indicates that the Minister must form the necessary opinion as a condition precedent to the power or duty, although the correctness of this opinion, once formed, is not a matter for review by the Court.

For example, the EPBCA s 134(4)(a) states that, in determining conditions of approval under that Act, the minister must consider any relevant conditions that have been imposed under a law of a state or self-governing territory or another law of the Commonwealth on the taking of the action. In Lansen v Minister for Environment and Heritage [2008] FCAFC 189, a majority of the Federal Court held that failure to consider a relevant condition (a mining management plan) imposed by the Northern Territory government led to jurisdictional error on the part of the minister that should be remedied by a declaration of invalidity and issue of an order of certiorari to quash the decision of the minister. 22.47 Under the EPAA, jurisdiction for a ‘determining authority’ to make decisions under Pt 5 of the Act depends on whether a proposal or matter can be classed as an ‘activity’. This is an essential precondition, therefore, to jurisdiction under this Part.179 [page 980] In Sustainable Fishing and Tourism Inc v Minister for Fisheries (2000) 106 LGERA 322, the grant of commercial fishing licences was held to be an approval or other authority that was relevantly an ‘activity’ under Pt 5 and therefore the EA requirements of that Part applied to licensing determinations. On the other hand, it has been held that Pt 5 does not apply to notices of closure of fisheries, because these are not ‘approvals’ and do not otherwise fall within the definition of ‘activity’.180 Requirements for including environmental or species impact assessments with applications for development consent where the legislation stipulates these to be necessary have also been interpreted as essential preconditions to the exercise of powers to determine those applications.181 For example, Part 5 of the EPAA requires an EIS before a determining authority may make a

decision about an activity that is likely to significantly affect the environment. Whether an activity is likely to significantly affect the environment therefore is a jurisdictional fact that enlivens the obligation to prepare an EIS.182 However, this approach does not apply to broadly cast general requirements to have regard to a range of non-exclusive criteria for decision-making183 or to submit documentation containing general information where the consent authority has power to seek further information and in the end refuse the application if the information is not forthcoming.184 The requirements of an environmental planning instrument that are relevant to consideration of an application for development consent may also be interpreted as a precondition to determining the application.185 22.48 Under the Development Act 1993 (SA) s 35, a development application for non-complying development must be refused consent unless specifically approved by council and the minister. A non-complying development is one that does not comply with the uses specified by a local planning scheme for a particular area. In Corporation of the City of Enfield v Development Assessment Commission (1999) 106 LGERA 419,186 the commission had determined that alterations to an existing liquid waste treatment [page 981] plant should be classified as ‘general industry’ rather than ‘special industry’. This classification effectively meant that the development was not then a noncomplying development. The High Court held that the question of whether the proposal was for a non-complying development was a jurisdictional issue; that is, that it was a precondition to the exercise of power that the court could review.187 Similarly, in Chambers v Maclean Shire Council (2003) 126 LGERA 7, the court held that classification of development under the EPAA did not depend on council’s opinion; this was a question of jurisdictional fact. 22.49 More problematic are those provisions that allow a decision-maker to do something ‘if satisfied’ the relevant statutory criteria exist. A reference to a decision-maker’s ‘satisfaction’ or ‘opinion’ will, in practically all circumstances, indicate that Parliament did not intend that a jurisdictional fact be created.188 However, could a decision-maker effectively give itself jurisdiction it would not otherwise have if the satisfaction were not formed? Should the courts treat such questions always as matters of fact for the decision-maker to resolve rather than as questions of law for resolution by the courts? The attitude of the courts is that a decision-maker cannot give itself

jurisdiction by a wrong finding of jurisdictional fact; either the fact objectively exists or it does not. Preconditions to exercising a power to make a decision that require the decision-maker to be ‘satisfied’ about a matter essentially require the decisionmaker to form the requisite opinion of ‘satisfaction’ before making the decision; absent an objective basis for forming a state of satisfaction the power to make the decision has not been enlivened because the precondition has not been triggered.189 However, where an objective basis for forming a state of satisfaction does exist and the decision-maker has considered the issue and essentially become ‘satisfied’, the factual correctness of that opinion is not reviewable.190 It is not the role of the court to substitute the court’s satisfaction for that of the administrative decision-maker. A decision-maker must exercise a power in good faith, rather than arbitrarily or capriciously. Therefore, whether a particular state of ‘satisfaction’ was reasonably open to the decision-maker on the facts may be challenged by judicial review on grounds of failure to consider all relevant matters or legal unreasonableness; but [page 982] cannot itself determine the existence or non-existence of the facts to which the state of mind relates.191 Where the jurisdictional fact is that a decision-maker form a prescribed opinion, the court cannot substitute its own opinion. However, that does not mean that the opinion is beyond review. The court may inquire whether the opinion really was formed. The court will treat an opinion that really was formed as no opinion in any of the following circumstances (which may overlap): if it was arbitrary, capricious, irrational, formed in bad faith, formed by taking into account irrelevant considerations, based on a misconstruction of the law under which the authority is conferred, based upon an assumption which has no basis in the evidence or which is contrary to the overwhelming weight of the evidence, or based on contradictory or illogical reasoning.192

The onus lies on the applicant to prove that the decision-maker did not form the required mental state of satisfaction. Such an inference may be gleaned from relevant documentary material evidencing the decision-making process193; from responses to interrogatories directed to the decision-maker; and, in New South Wales, by calling in aid the Land and Environment Court Rules 2007 r 4.3, under which a public authority may be required to furnish a written statement setting out reasons for a decision.194 22.50 Where questions of ‘satisfaction’ are clearly tainted by issues of national or state policy, then it may be more difficult, indeed less desirable, for the courts to interfere with a decision. For example, ministers often have the

right to make determinations about whether proposals for development are ‘state significant’, replacing normal processes for consideration of such proposals with alternative processes laid down by statute or determined by the minister. Delving into whether a particular proposal is of ‘significance’ to the state could attract to a court criticism that it is interfering in policy determinations that are not for the court to judge.195

Excess of power 22.51 Excess of power occurs where a decision-maker that otherwise has jurisdiction to make a decision goes beyond the boundary of the statutory power so conferred. In practice, statutory powers conferred on decisionmakers will rarely be interpreted by the courts as being absolutely unfettered, that is, allowing the decision-maker full freedom to make the decision without any constraint whatsoever. For example, in Environment Protection Authority v Condon [2013] NSWSC 777, a power in legislation allowing waste levies to be imposed on waste received at landfills and calculated in accordance with regulations, was held to be limited to ‘waste received’ at the site and [page 983] that did not empower the regulator to deem whatever was at the site to be ‘waste received’. The mandate given by law to the regulator was to calculate the material received at the site, not to deem what was presently on the site as being received at the site. 22.52 Even apparently unfettered discretionary powers, such as a provision in legislation that a decision shall be ‘final’, will often be interpreted by the courts as constrained by the overall intent and purposes of the legislation; or dependent on the decision-maker having jurisdiction to make the decision in the first place.196 The courts reach this conclusion as a matter of statutory interpretation, or presumption. That is, that parliament could not have intended to grant powers to decision-makers that would effectively allow them to override or ignore the overall intent and purpose of the legislation by which their powers were conferred.197 For example, legislation may allow a decision-maker, normally a minister, to do something if ‘in his opinion’ the conditions for exercise of this power exist. Courts have consistently interpreted ministers’ opinions on such matters as not being determinative of whether the conditions for exercise of the power actually exist; the proper test to be applied is not the subjective opinion of the minister but an objective determination as to whether the statutory purpose was lawfully in evidence.

For example, in Sidney Harrison Pty Ltd v City of Tea Tree Gully (No 2) (2001) 112 LGERA 327, a local council was empowered under the Development Act 1993 (SA) to classify a proposed development as category one if, ‘in the opinion of the relevant authority’, it was of a minor nature and unlikely to be the subject of reasonable objection.198 The significance of such a classification was that public notice of the application need not then be given. The court held that the council had erred in law in concluding that the development was of this particular classification and had, therefore, failed to comply with the statutory procedures for notification, and the subsequent decision to permit the development was, therefore, invalid. 22.53 Powers to make decisions, of course, often rely on the ability of decision-makers to form opinions without the legislation expressly saying so. In Woollahra Municipal Council v Minister for Environment (1991) 23 NSWLR 710, the court was called on to interpret the extent of the power conferred on the Director of the National Parks and Wildlife Service and the minister to permit development in a national park. The provisions of the National Parks and Wildlife Act 1974 (NSW) (NPWA), under which the power purported to be exercised, were cast in general terms and allowed such decisions to be taken if it was considered that the development was for parks purposes. The minister purported to grant licences for the use of land and buildings within the park for the purpose of conducting a private college. The minister indicated that a prime motive for authorising this development was the fact that the college would [page 984] return fees from the arrangement that would be used to upgrade and assist in providing further facilities in the park. It was not suggested that this motive was improper or that irrelevant considerations had been taken into account, or that the decision was manifestly unreasonable. The only question was whether the statute authorised such a decision. In holding that neither the director nor the minister did have such power, Kirby P said: As with any power or discretion conferred by Parliament, it is not granted to the Director to be exercised at his whim or for purposes, however worthy, which are not properly characterised as being for the attainment of the objects for which the power has been conferred. Those objects, unless exceptionally stated in express terms, must be derived from the general structure of the legislation, the terms of relevant provisions and the purposes for the attainment of which the legislation has been enacted.

The court found that the NPWA had been enacted for purposes of nature conservation and public recreation and enjoyment, and the purported issue of

licences conferring on private interests exclusive use of parts of the park were inconsistent with those objectives.199 A similar conclusion was reached in Blue Mountains Conservation Society v Director-General National Parks and Wildlife (2) (2004) 133 LGERA 406, where approval for commercial filming in a wilderness area was declared unlawful as being contrary to the purposes or objectives of park management under a statutory scheme that declared wilderness areas ‘sacrosanct’. Similarly, broad provisions in legislation that allow regulators, for example, ‘to do all things necessary or convenient for carrying out or giving effect’ to the legislation, to make regulations or other instruments of management such as state policies, planning schemes and management plans, and to impose conditions of consent, will also be generally interpreted as being conferred for purposes associated with carrying out the objects of the legislation.200

Improper exercise of power 22.54 Closely allied to the concept of excess of power is the improper use of a power, which takes the decision outside the limits of the power so conferred. This ground of appeal was raised in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113, in which the Federal Court had dismissed an application challenging a decision of the Minister for Environment Protection, Heritage and the Arts under the Environment Protection and Biodiversity Conservation [page 985] Act 1999 (Cth) (EPBCA) to approve the relocation of grey-headed flying foxes from the Royal Botanic Gardens in Sydney. The case was brought on the grounds that the decision was an improper exercise of power conferred by the EPBCA ss 130(1) and 133 because the minister had failed to take into account (1) whether the Botanic Gardens was critical habitat for the flying fox; (2) the social matters involved in moving the flying fox to areas outside the Botanic Gardens involving possible conflict within the community; (3) all adverse impacts of the decision on matters protected by the EPBC Act Pt 3 due to the approval remaining effective until 2039; and (4) other information the minister had on relevant impacts made in public submissions. The court found that the minister had provided reasons that satisfied his statutory obligations, and the case was dismissed on all four grounds of appeal.

Certainty in decision-making

22.55 Sometimes, the question may not be so much whether the decisionmaker actually had the jurisdiction or power to make the decision, but whether the decision itself is sufficiently certain in its effect so as to enable people to understand what it means or how to comply with it. For example, a state coastal policy that purports to apply certain restrictions on development within a coastal zone would be expected to define the geographical extent of that zone.201 Where failure to comply with management prescriptions or orders, such as licences or the range of administrative orders discussed at 20.4 and following, would render wrongdoers open to criminal prosecution, then this issue of certainty is particularly compelling.202 The principle that decisions should be certain in effect applies also to orders made by tribunals in proceedings for civil enforcement of environmental laws.203 Another aspect of certainty is to what extent conditions of licences and other approvals might enable development to be carried out substantially differently to the concept for which approval was sought. Although courts will always seek to give practical effect to licence conditions in order to avoid questions of uncertainty,204 conferment of a condition that would allow a significant alteration to the development for which approval had been sought may lead a decision-maker into approving the condition for an improper purpose.205 [page 986] 22.56 This principle, however, has to be balanced against the desirability in many projects of incorporating some flexibility to respond to circumstances as the project progresses. A condition will only be invalid because it lacks certainty or finality if it falls outside the class of conditions that the statute impliedly or expressly permits,206 not because, for example, it may allow for some adaptive management within the conditions contemplated by the statutory scheme. As a general principle, a condition of approval will not necessarily be considered invalid because the condition retains in the decision-maker some ongoing flexibility in relation to implementation of the approved activity or because it delegates some authority in relation to implementation to some other person or agency.207 As Preston CJ said in Ulan Coal Mines Ltd v Minister for Planning and Moolarben Coal Mines Pty Ltd (2008) 160 LGERA 20 at [77]–[78]: … questions of degree are always involved in determining whether a condition is sufficiently uncertain so as to be outside power … Retention of practical flexibility, leaving matters of detail for later determination, and delegation of supervision of some stage or aspect of the development, may all be desirable and be in accordance with the statutory scheme.208

In Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213, a condition requiring a proponent to provide a suitable offset to compensate for an environmental impact, to the satisfaction of the Director-General, was held not to cause the approval to lack finality. Even though the impugned condition did not specify the offsets the Director-General required the proponent to provide, it did not fall outside the power expressly or impliedly permitted under the Act. The condition could not be said to leave open the possibility that the approved project would be a significantly different project from that in respect of which the application was made. Similarly, in Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419, it was held that offset conditions would not be rendered uncertain by virtue of failing to identify what would happen if adequate offset areas could not be obtained. Neither did the offset conditions need to be established prior to commencing the permitted activity. If the approval were to be revoked due to a breach of offset conditions, this would not render the offset conditions, nor the process for establishing adequate areas, uncertain. So long as the discretion conferred by the condition is ‘suitably confined’ it should survive the test for lack of finality.209 Similarly, conditions that require management [page 987] plans to be drawn up and approved by the consent authority and subsequent compliance with such plans do not cause the consent to lack finality.210

Relevant and irrelevant considerations 22.57 A relevant consideration is one that the decision-maker (including a court or tribunal hearing a merits appeal211) is bound to take into account in making a decision.212 Legislation, or instruments of management issued under legislation, such as regulations, planning schemes and management plans, often indicate what factors have to be taken into account in the decision-making process.213 Clearly, these will, therefore, be relevant considerations, and failure to take them into account may result in the subsequent decision being declared invalid and of no effect, so long as the error was ‘material’ to the decision.214 Statutorily mandated factors are not usually exhaustive of all the matters that will be relevant to that decision.215 That is, there may be other matters, in addition to those expressly indicated by the legislation that, in the context of making any particular decision, may also be relevant, in the context of the

statutory provisions under which the power is being exercised. In other words, the statute may have indicated certain factors that it considers to be relevant, but allowed for the fact there may be others. It would be very difficult for a statute to categorically include an exhaustive list of all relevant considerations for every decision that could possibly be made under the legislation. Whether a decision-maker is bound to take into account a particular matter may depend on whether an implication that he or she was bound to do so is to be found in the subject matter, scope and purpose of the legislation.216 For example, when exercising a power to give consent to destroy Aboriginal objects under the National Parks and Wildlife Act 1974 (NSW) s 90, it has been held that there is an implied obligation to consider the cultural significance of the site, and in particular [page 988] anthropological reports that indicated why a past massacre made an area of vital importance and significance to Aboriginal people.217 22.58 Even where a matter for consideration is clearly indicated, the precise meaning and scope of the obligation may need to be interpreted; for example, a requirement that the ‘public interest’ is a relevant consideration in decision-making may enliven any number of value judgments made by reference to undefined factual matters.218 In NA and J Investments Pty Ltd v Minister Administering the Water Management Act 2000 [2011] NSWLEC 51, the court held that where discretion is conferred upon an administrative decision-maker to act in the public interest it is generally a matter for that decision-maker to decide that which is relevant and that which is not. The public interest is a broad concept entitling the decision-maker to range widely. In this case, the amendment of a water sharing plan required consideration of the interests of the public generally rather than the interests of any individual or particular group of individuals. Application of this principle would militate against any obligation to consider representations previously made to an individual or particular group of individuals. Unless representations made to an individual or group of individuals were consistent with the statutory discretion available to the minister, consideration of such representations might itself involve taking into account an irrelevant consideration. 22.59 Failure to consider a matter that the decision-maker was not bound to consider cannot vitiate a decision.219

The test for determining what factors are relevant to a decision was lucidly explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40: What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors — and in this context I use this expression to refer to the factors which the decision-maker is bound to consider — are not expressly stated, they must be determined by implication from the subjectmatter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of

[page 989] the discretion are similarly unconfined, except in so far as there may be found in the subjectmatter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subjectmatter, scope and purpose of the Act.

So in Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100, for example, a panel decision not to take into account greenhouse gas emissions in considering an application to amend a planning scheme so as to facilitate expansion of coal mining, was set aside by the Victorian Administrative Appeals Tribunal because of the relevant nexus between the application and greenhouse gas issues.220 Conversely, when a decision-maker includes a consideration of factors not mandated by the legislation, they may be scrutinised, therefore, to determine whether at least they are not irrelevant.221 Consideration of principles of ESD, including the precautionary principle, may, for example, be considered to be not irrelevant, although not specifically required by the legislation.222 In fact, taking into account any factors relevant to the objects of legislation could hardly be said to be irrelevant.223 22.60 Equitable decision-making may also demand that broader considerations should be applied to decision-making in addition to those specified by the legislation;224 though where there are a wide range of considerations which may be relevant in the sense that a decision-maker is entitled to take them into account, it does not necessarily follow that the decision-maker errs in law if he or she does not take a particular consideration into account.225

On the other hand, in Concord, North Sydney, Woollahra & Manly Councils v Optus Networks Pty Ltd (1996) 90 LGERA 232, the Federal Court held that, in determining whether the installation of aerial electricity cables might have a significant effect on the environment, in accordance with the Telecommunications National Code, [page 990] questions of economic efficiency and competition were irrelevant considerations.226 Also, in Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc (1996) 98 LGERA 335, the New South Wales Court of Appeal held that a local council that took into account the fact that it might be sued by a disgruntled party if it failed to grant planning permission, had also taken into account an irrelevant consideration.227 In Sweetwater Action Group Inc v Minister for Planning [2011] NSWLEC 106, the minister had purported to make a planning agreement with a developer to provide for conservation offsets in return for a rezoning plan that would enable a town centre development to go ahead. The court held that because the agreement did not provide for a suitable means of enforcement, such as a bond or guarantee, in the event of a breach, it could not therefore have been a voluntary planning agreement made in accordance with the Act. It was therefore an irrelevant consideration and should not have been taken into account by the minister in recommending the rezoning.228 Considering an irrelevant matter and then rejecting it does not, however, enliven this ground of judicial review.229 22.61 The requirement that relevant matters should be taken into consideration in the decision-making process begs the question of how those matters of relevance should be treated or considered. It is clear that simply adverting to the relevant matters without properly considering them is not enough. The obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration.230 Or, as Mason P said in Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at 185, there has ‘to be an understanding of relevant matters and their significance to the decision required to be made, as well as a process of evaluation sufficient to warrant the description of the matters being taken into consideration’. Decision-makers who rely on departmental advice to inform them may fall at this hurdle. As the court said in Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2014] FCA 117 (at [94]):

If departmental advice to the Minister concerned is incomplete such that it omits reference to a relevant consideration and there is no other evidence to show that the

[page 991] Minister otherwise took that consideration into account but instead acted upon the departmental advice in the making of a particular decision, that decision will be flawed by a failure to take into account a relevant consideration.

On the other hand, a decision-maker does not have to search high and low to gather information about possible issues of relevance that are not readily available;231 and the mere fact that not every issue of relevance was addressed in the statement of reasons or in departmental advice given to the minister does not by itself prove that those considerations were not taken into account.232 So long as the decision-maker has properly evaluated the proposal, the decision is for it alone to make.233 It is clear, though, that the courts will pounce on decisions that have been made without real or adequate consideration of relevant factors: see the discussion at 22.63 below. So long as proper advertence to relevant considerations is given in the decision-making process, the weight to be given to the various factors that are relevant will lie within the discretion of the decision-maker.234 Evidence may, however, suggest that such weighting is unreasonable: see the discussion at 22.67 below. 22.62 A rather different consideration is the level of particularity to which advertence should be given in considering ‘relevant matters’. As Preston CJ observed in Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 at [60], ‘the statute must expressly or impliedly oblige the decision-maker to enquire and consider the subject matter at the level of particularity involved in the applicant’s submission’. For example, principles of ESD may be found, by express inclusion in a statute or by implication, to be a relevant matter for consideration. However, would this oblige a decisionmaker to consider each and every principle of ‘ESD’ to satisfy this legal obligation or would a more general or ‘global’ consideration suffice? The answer of course depends on interpretation of the statute conferring the obligation; however, where obligations relating to ESD are expressed, as they often are, at a level of generality, then a ‘global’ consideration would suffice.235 Failure to make enquiries about facts relevant to this obligation could, however, lead decision-making into invalidity.236 [page 992]

‘Have regard to’ or ‘consider’

22.63 Legislation commonly provides that public authorities or individual decision-makers must ‘have regard to’, ‘take into account’, ‘consider’ or ‘take into consideration’ stipulated objectives, criteria or general considerations, including ESD;237 or that the objects of legislation or statutory authorities are, or are to be promoted, ‘having regard to’ particular criteria, such as the principles of ESD.238 Naturally, the matters so described are ‘relevant considerations’ for the purposes of the statutory scheme. However, what is the legal standard expected of the decision-maker ‘considering’ such matters? Naturally, the matters to which regard must be had would be expected to influence decision-making. However, such a statutory instruction falls short of actually requiring the statutory criteria to be implemented or applied so as to command decision-making.239 In other words, environmental legislation usually prescribes processes rather than outcomes. A statutory instruction to ‘have regard to’ means ‘to take those matters into account and to give weight to them as a fundamental element’ in making a decision,240 but not to make it by reference to them exclusively.241 In Parramatta City Council v Hale (1982) 47 LGRA 319, Moffitt P held that simply adverting to a matter and then rejecting it was not taking it into consideration. To do that a decision-maker had to acquaint itself with such relevant material as would enable it to consider whether such matters were indeed material to the decision. In other words, regard must be adequately not cursorily given.242 22.64 Courts generally apply a presumption of regularity243 or due process to decision-making (that the decision has been made in a legally acceptable manner). The presumption was explained by McHugh JA in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 162: ‘Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled’. A presumption of course is always rebuttable, and initial application of such a presumption does not prevent [page 993] an examination of available evidence to determine whether the presumption may be misplaced.244 The presumption has also been said not to apply to the substance of development consents.245 For example, a minister’s decision may be vitiated for failure to have regard to mandatory and materially relevant considerations by reason of being based on misleading departmental advice.246 A misleading departmental communication may lead the minister

to fail to take into account a materially relevant consideration.247 Similarly, failure by council officers to advise council about material issues contained in public submissions may mean that the council, as consent authority, cannot have considered all the relevant issues.248 Where it becomes clear that there has been a lack of material available to a decision-maker, the court may infer that the decision-maker has failed to consider those relevant factors stipulated by the legislation.249 Such an inference may be drawn, for example, from a failure to refer to relevant matters in documents before the decision-maker or minutes of meetings at which decisions were taken, and lack of any witnesses to testify to the contrary.250 Where the decision-maker has, by contrast, purported to consider a matter, a constructive failure to carry out its function may be demonstrated by rejecting expert advice, or by accepting inappropriate advice, thus failing to address a significant environmental consequence.251 In Noble v Cowra Shire Council (2003) 129 LGERA 120, for example, a council decision approving an application for development was set aside because council, although it had adverted to the matter, had made no real attempt to understand the significance of, or to evaluate, impacts of odour emanating from a dairy operation.252 [page 994] In Friends of South West Rocks v Machro Pty Ltd (2004) 136 LGERA 198, council argued that since numerous objections attached to the assessment report prepared by council had addressed matters relevant to SEPP 71 (coastal policy), then council had effectively given consideration to these issues. Pain J held that given the absence of any acknowledgment or discussion of these matters in the report, there was no evidence that due consideration had been given and therefore the purported development consent was invalid. Ministers can also fail this test. In National Parks Association New South Wales v Minister for Environment (1992) 130 LGERA 443, the fact that the minister determined to re-open a four-wheel drive track in a national park without adverting in any real or genuine manner to the necessity for an EA under the EPAA Pt 5, led the court to declare this action manifestly unreasonable and set aside the decision. While in Lansen v Minister for Environment and Heritage [2008] FCA 903, the Federal Court held that considering a media release that described relevant conditions of a mining lease was not an effective substitute for actually considering the substance of those conditions; although in the event this did not lead to the decision being set aside: see 22.78.

22.65 It cannot be assumed, therefore, from mere ‘awareness’ of an issue that the required consideration has been given.253 As the New South Wales Court of Appeal said in Zhang v Canterbury City Council (2001) 115 LGERA 373 at [64], ‘mere advertence to a matter required to be taken into consideration is not sufficient’. To take matters into consideration in a legally acceptable sense means that a decision-maker must have sufficient information, an understanding of the matters and of the significance of the decision to be made, and a process of evaluation sufficient to warrant the description of the matters being taken into consideration.254 ‘The requirement of consideration is not satisfied by formalistic reference’;255 it must be ‘proper, genuine and realistic’.256 In Belmorgan Property Development Pty Ltd v GPT RE Ltd (2007) 153 LGERA 450 at [77]–[78], however, Basten JA warned of the need to apply such epithets cautiously ‘lest they encourage a slide into impermissible merit review’257 and explained that ‘proper may be understood to invoke the requirement that a power can only be used for the purpose or purposes for which it is conferred and not for some extraneous purpose … genuine may be understood to reflect the well-established principle that the decision-maker must undertake his or her function in good faith’; but concluded that the term realistic ‘finds no ready referent in the language of judicial review’. It could, [page 995] however, refer to the possibility that giving grossly inadequate weight to a mandated matter could trigger judicial review on the ground of manifest unreasonableness.258 In Anderson v Director-General, Department of Environment and Climate Change (2008) 163 LGERA 400, where the court interpreted the appellant’s submissions as abandoning the formulation of ‘proper, genuine and realistic consideration’ (see [53]), Tobias JA said (at [58]): … whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written. That process is not … assisted to any significant degree by resorting to formulations which purport to qualify what is an ordinary English word, namely ‘consider’ and which … invoke[s] language of indefinite and subjective application.

22.66 Nevertheless, doubts as the formulation of ‘proper, genuine and realistic consideration’ appear to have been overtaken by the approach of the High Court, which quoted, in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [26] and [30], other authorities that had said that ‘The statutory duty to “consider” means to give “proper, genuine and realistic

consideration” to the merits of the case,’ but those words should not be permitted ‘to encourage a slide into impermissible merits review’; and this lead has since been taken up again by courts in New South Wales259 and also by the Supreme Court in Victoria.260 Preston CJ also warned in Walsh v Parramatta City Council [2007] NSWLEC 255; 161 LGERA 118 at [62]–[63], that:261 The relevant considerations ground is concerned essentially with whether the decision maker has properly applied the law. It is not a ground that is essentially concerned with the process of making the particular findings of facts upon which the decision maker acts … An applicant who undertakes to establish that an administrative decision maker improperly exercised power should not be permitted under colour of doing so to enter upon an examination of the correctness of the decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or the regularity or irregularity of the manner in which the decision maker has proceeded. The correctness or incorrectness of the conclusion reached by the decision maker is entirely beside the question. Proper consideration of a relevant matter does not demand factual correctness. It is wrong to equate relevancy with factual correctness. A wrong assessment of the consideration the decision maker takes into account is not a reviewable error of law.262

[page 996]

Due weight 22.67 Where a number of factors are mandated for consideration without any statutory indication as to the priority or weight to be accorded to the various factors, then the relevance of each of those factors is a question of fact for the decision-maker to determine.263 For example, although application of the precautionary principle may be relevant to, even required of, decisionmaking, it is but one factor to be taken into account and does not outweigh all other considerations.264 It is clear, however, that all statutorily mandated criteria must be given due weight, rather than no weight at all. Due weight may mean whatever weight is due as the focal point of the scheme of the legislation.265 In practice this means considering what weight, on the evidence, a reasonable decision-maker would have given to the relevant matters.266 For example, in City of Mitcham v MOL Pty Ltd (2003) 127 LGERA 145, the South Australia Court of Appeal set aside a decision of the Environment, Resources and Development Court (ERD Court) because the court had not given due weight to the provisions of a development plan whose objective was to preserve, enhance or re-establish the ‘natural character’ of the zone.267 On the other hand, of course, in the context of any particular determination, that ‘due weight’ could in fact be nil. 22.68 Failure to have regard to or consider any statutorily mandated factors will, of course, mean that due weight will not have been given and this

may result in any consequent decision being declared invalid.268 In Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59, the Full Court of the Federal Court said (at [44]): The obligation of a decision maker to consider mandatory relevant matters requires a decision maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration. The failure to give weight to a factor in which a decision-maker is bound to have regard, in circumstances where that factor is of great importance in the particular case, may support an inference that the decision maker did not have regard to that factor at all. If the decision-maker simply dismisses, as irrelevant, a consideration that must be taken into account, that is not to take the matter into account.

[page 997] The court should not necessarily infer from the failure of a decision maker to refer expressly to relevant matter, in the reasons for decision, that the matter has been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision.

However, while environmental or sustainability criteria may be mandated as relevant to decision-making, the practical effect of the ‘have regard to’ type formula, discussed above, is that, in practice, these criteria may not command decision-making, and the decision-maker is free to give whatever weight is deemed acceptable, subject only to the legal requirement that such weight must have been reasonably open to the decision-maker on the balance of the evidence.269 22.69 The weight to be given to various factors could of course be specified by legislation, though this is unusual because it would trespass on the discretion given to the decision-maker to apply weight as appropriate in the circumstances of the individual case. Nevertheless, legislation sometimes does give such an indication; for example, principles for water sharing in New South Wales shall be given priority according to the order in which they are set out in the Act.270 More annoying in legislation is the often-repeated statement that the principle of ESD referred to as conservation of biological diversity and ecological integrity should be a ‘fundamental’ consideration in decision-making without giving any guidance at all about what weight is to be attributed to this assertion.271

Improper purposes and ulterior motives 22.70 The ‘improper purpose’ ground of challenge can only apply where the relevant power is being exercised for an unauthorised or impermissible purpose in the sense that no attempt would have been made to exercise that

power except to achieve that purpose.272 The onus is on the person claiming that the power was exercised improperly to prove the case,273 and these grounds are hard to prove.274 An improper purpose will not be lightly inferred, and only where the evidence cannot be reconciled with the proper exercise of the power.275 To succeed on the ground of improper purpose, the purpose must generally be shown to reflect a dominant and substantial purpose, or the ‘operative subjective purpose of the decision-maker’,276 in the decision-making process, not just a peripheral influence, before a decision will be declared unlawful on this ground.277 [page 998] In South Australia v Slipper (2004) 137 LGERA 374, for example, the minister issued a certificate for compulsory acquisition of land to be the national depository for safe disposal of Australia’s low level radioactive waste. The power granted by the Lands Acquisition Act 1989 (Cth) s 24(1)(a) empowered the minister to issue the certificate if satisfied of the urgent necessity for the acquisition and that it would be contrary to the public interest for the acquisition to be delayed. Section 42 of the Act indicated that if the land to be acquired was part of a public park then compulsory acquisition could not be effected without the consent of the government of the state or territory in which the land was situated. The minister issued the certificate in effect to prevent s 42 of the Act applying. The Full Court of the Federal Court held that this was incapable of constituting an urgent necessity for the acquisition; the minister had exercised the power for an improper purpose. On the other hand, in the absence of bad faith, fraud or improper purpose, innocent rather than deliberate misleading conduct will not vitiate a decision.278

Manifest unreasonableness 22.71 The test for legal unreasonableness — that a decision was so unreasonable that no reasonable decision-maker, acting within jurisdiction and according to law, could ever have made that decision — was first laid down by the House of Lords in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, and has been repeated in numerous cases since. The ‘Wednesbury test’ has also been reformulated or rephrased; for example, to ask whether a decision was so devoid of any plausible justification that no reasonable body of persons could ever have

reached it;279 and whether a decision was ‘so outrageous that its defiance of logic or of accepted moral standards [meant] that no sensible person who had applied his mind to the question’ could have arrived at it.280 Courts in New South Wales have variously adopted the terms ‘manifestly unreasonable’, ‘something overwhelming’,281 and ‘illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds’;282 [page 999] however, the test is basically the same. The opinion or decision must be so unreasonable that no reasonable person could have reached such a conclusion.283 22.72 The formulation in Wednesbury was revisited by the House of Lords in R v Chief Constable of Sussex, Ex parte International Trader’s Ferry Ltd [1998] UKHL 40, where Lord Cooke of Thorndon said at 1228–9: It seems to me unfortunate that Wednesbury and some Wednesbury phrases have become established incantations in the Courts of United Kingdom and beyond. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, an apparently briefly-considered case, might well not be decided the same way today; and the judgment of Lord Greene M.R. twice uses (at pp 230 and 234) the tautologous formula ‘so unreasonable that no reasonable authority could ever have come to it’. Yet judges are entirely accustomed to respecting the proper scope of administrative discretions. In my respectful opinion they do not need to be warned off the course by admonitory circumlocutions. When, in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1997] AC 1014, the precise meaning of ‘unreasonably’ in an administrative context was crucial to the decision, the five speeches in the House of Lords, the three judgments in the Court of Appeal and the two judgments in the Divisional Court all succeeded in avoiding needless complexity. The simple test used throughout was whether the decision in question was one which a reasonable authority could reach. The converse was described by Lord Diplock, at p 1064 as ‘conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt’. These unexaggerated criteria give the administrator ample and rightful rein, consistently with the constitutional separation of powers.

Demonstrating that there has been unreasonable behaviour to the Wednesbury standard is a high hurdle to overcome;284 but may, for example, be supported by a failure to take into account relevant considerations, taking into account irrelevant considerations, or giving excessive or inadequate weight to the relevant considerations.285 As Biscoe J said in Save Our Street Inc v Settree [2006] NSWLEC 570 at [31]: There is however a distinction between a decision which the court considers is unreasonable, and a decision which the court considers is so unreasonable that no reasonable body could have come to it. … I agree with Rares J in Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229 at [27]–[29] that there

[page 1000]

is a spectrum of unreasonableness and ‘that between its extreme ends are many categories of decision with which courts might not agree or which they could regard as unreasonable but which a reasonable person could have made. The latter category of decision is immunised from judicial review because the legislature has confided to the decision-maker the task of forming the opinion or arriving at the state of satisfaction on the materials before him or her … Administrative decision-making, of its nature, involves the formation of value judgements … Value judgements are ones in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right …’

22.73 Mere evidence of illogicality or perversity will not, by itself, establish unreasonableness.286 Neither will a decision be declared unreasonable just because every issue of possible relevancy has not been considered.287 The courts must also be wary about trespassing on the merits rather than the legality of a decision. For example, in Bon Accord Pty Ltd v Brisbane City Council [2008] QPEC 119 at [112], Rackemann DCJ said: The test has been described as ‘stringent’ and ‘extremely confined’. It is not sufficient to establish that, as a matter of merit, a different decision ought to have been preferred. What must be established is that no decision maker, acting reasonably, could have made that decision. In applying that standard, a court must proceed with caution, lest it exceed its supervisory role, by reviewing the decision on the merits. Whilst this court is often charged with the responsibility of reviewing a planning authority’s decision on the merits in the context of an appeal, that is not its role in proceedings of this kind.

A decision that is reasonably open to the decision-maker on the evidence will not, therefore, be vitiated by the court simply because the court may disagree with it, would have done it differently, or has certain misgivings about it;288 or because some people believe that the decision displays some element of unfairness to the detriment of some and to the advantage of others.289 The function of the court in judicial review is to test whether the decision is lawful, not whether it is wise or fair on the merits.290 The broader and more indeterminate the question for decision, and the more such a decision reflects political considerations and priorities on which reasonable minds may differ widely, the more difficult it is for a court to reach a conclusion that an impugned decision is absurd.291 [page 1001] 22.74 Naturally, courts will be wary of declaring administrative decisions so unreasonable that they are in fact unlawful, particularly where significant government policy may be involved,292 such as the implementation of important strategies for environmental planning, natural resources management293 or heritage protection. For example, it was held in Re Edwards; Ex parte Pearls Pty Ltd [2003] WASCA 148, that the formation of an opinion by the minister concerning the heritage values of a particular site was not unreasonable on the evidence.

However, the courts will not shirk from such a conclusion where it is warranted. For example, in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 112 ALR 211, a formula for allocating catch quotas for particular species of fish, which was contained in a management plan for the South Eastern Fishery, was described as so capricious and irrational that no reasonable person could ever have devised it, and the provisions of the plan were, therefore, beyond power and void.294 In Tickner v Bropho (1993) 114 ALR 409, the decision of a federal minister to refuse applications for emergency and permanent declarations to protect Aboriginal heritage, on the basis that there was no serious or immediate threat to that heritage because the site was adequately protected under Western Australian law, was, in the absence of investigation of information readily available to the minister that suggested the contrary, an improper exercise of power because it failed to reasonably reflect the available evidence. And in East Melbourne Group Inc v Minister for Planning [2008] VSCA 217, the minister’s reasons for exempting herself from public notice requirements that would otherwise have applied to a development were found to reveal an improper purpose and irrelevant considerations, and be so wholly implausible in the Wednesbury sense that they could not form a legal basis for the exercise of the discretionary power. 22.75 Where decision-makers are required to form opinions — for example, about the likelihood of a significant impact on the environment or on threatened species, or about any other particular effect of a decision — then decisions that would deny such an effect may be challenged on the basis that such a conclusion was not reasonably open on the evidence.295 Where ‘significance’ is the trigger for an exercise of power, [page 1002] the courts are likely to test whether the decision-maker has correctly understood the nature of the obligation imposed by the legislation, as a matter of law; but then leave it up to the decision-maker to determine, as a matter of fact, what weight should be placed on the facts that influence that determination.296 In King v Bathurst Regional Council [2006] NSWLEC 505, for example, it was held that no reasonable council could have concluded that a particular proposal was of ‘minimal environmental impact’ and the decision was declared void and of no effect. Conditions imposed upon development consents may also be so unreasonable that no reasonable decision-maker would have imposed them.297 Equally, where parliament has conferred upon a decision-maker the

authority to determine the existence or non-existence of certain facts, and then required a state of ‘satisfaction’ to be reached in order to enliven the exercise of a statutory power, the court may inquire into whether the mental state existed and, if so, whether that mental state was reasonably open on the facts; but not whether the facts themselves actually existed.298

Dealing with government policy 22.76 Decision-makers are also public servants who are required to implement government policy. Sometimes, the requirements of the minister to whom they are responsible may appear to impinge on or to conflict with their statutory decision-making functions. The question arises, what is the proper role of government policy in the decision-making process? Could a minister effectively rewrite the statutory responsibilities of public servants by issuing instructions that are at variance with, or seek to dictate a preferred approach to, their statutory responsibilities? The short answer is that public servants entrusted with statutory responsibilities must carry them out, because that is what the law requires. Ministers cannot vary these responsibilities by administrative rather than parliamentary action. Government policy is a relevant consideration in decision-making, but it should not direct, rather than advise, the outcome. So long as the decision-maker objectively weighs all relevant factors, however, then government policy may be determined to carry greater weight than any other factor. So long as such a weighting is not unreasonable in a legal sense, then the decision will be lawful. In Perder Investments Pty Ltd v Lightowler (1990) 101 ALR 151, for example, a lawfully appointed delegate was entrusted with determining applications for the transfer of boat licences in the Torres Strait Prawn Fishery. The federal minister, to whom ultimately the delegate was responsible, announced a policy decision freezing [page 1003] all transfers. When the applicant applied for a transfer of its licence, it was informed that the decision-maker was bound by the ministerial policy to refuse the application. The Federal Court set aside this decision, on the basis that the decision-maker had failed to have proper regard to the merits of the application, and had erred in law by believing that the ministerial policy prevented any further exercise of discretion. The policy could guide the exercise of that discretion, but not dictate the outcome.299

Delegation of decision-making 22.77 Where a decision-maker is given responsibility for making decisions, the general rule is that that responsibility cannot be delegated to another, unless delegation is consistent with the powers granted by the statute. There is a balance to be struck here, however, between ensuring that those entrusted with decision-making powers are actually responsible for exercising them, and administrative efficiency, that is, the ability to make decisions in a timely and effective manner. This balance would be seriously compromised if every aspect of making a decision had to be handled personally by the decisionmaker.300 Sometimes, statutes are clear about conferring powers of delegation. The difficulties arise in determining whether a statute implies such a power, and the extent of it. In general, if a statute requires, for example, that a decisionmaker such as a minister must be ‘satisfied’ that a certain state of affairs exists, or that he or she must ‘consider’ certain matters, before making a decision, then this is going to be interpreted as requiring personal attention: a nondelegable duty. This does not necessarily mean, however, that the decisionmaker cannot call on others to assist in the process, such as by collecting and organising material, and even providing accurate summaries of the main points or submissions made by interested parties.301 It does mean that others cannot carry out the actual consideration of the matters mandated by statute.302 In Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) (2008) 162 LGERA 154, for example, although Buchanan J, in the Federal Court, accepted that the minister’s obligations under various provisions of the EPBCA were delegable, he also held that any advice given to the minister about matters he was required to take into account had to be accurate and summaries of relevant matters had to be complete. In this case, a departmental assessment report of an EIS prepared in relation to an application for an extension of a phosphate mining lease on Christmas Island was held not to be a full and accurate summary of the EIS. The minister had therefore failed to have proper regard to a statutorily mandated matter (the EIS) [page 1004] independently and separately of the assessment report, and the minister’s decision was ultimately set aside in its entirety for legal error. Similarly, in South East Forest Rescue Inc v Bega Valley Shire Council [2011]

NSWLEC 250, development consent for a pilot plant using wood harvested from native forests was overturned because councillors had not been properly informed by a staff report about material facts and contentions raised in public submissions; notably, consistency with zone objectives outlined in the relevant local environmental plan, and principles of ESD. While Council was clearly entitled to the assistance of its staff in evaluating the application for approval, it had to apply its own mind to issues raised in public submissions; and this it had failed to do because material issues had not been put forward to council by its officers.303 In practice, the legislature, recognising that the sensible delegation of statutory functions will enhance administrative efficiency, frequently authorises delegations to be made. It will then be a matter of interpretation whether the delegate’s decision, and the circumstances in which it was made, exceeded the permissible boundaries of this delegated authority.304

Effect of a finding of invalidity 22.78 If a court determines that a decision is unlawful because of a breach of principles of judicial review, then the decision may be declared invalid and of no effect. Effectively, this means that the proponent of a proposal must go back and begin afresh the procedures for seeking consent. Where an error of law leads to a finding of lack of jurisdiction by the decision-maker, then the decision will be a nullity.305 Invalidity, however, is not an automatic reaction to unlawful decision-making. Construction of the meaning and effect of a statutory provision may indicate a parliamentary intention not to necessarily invalidate a decision because of a procedural or substantive breach; so that even though a particular decision has not been properly made according to law, the ultimate decision may still stand. A good example is to consider the different requirements for submitting documentation under the EPAA. Effectively, failure to submit an EIS for designated development will always lead to any subsequent decision approving the project being declared invalid, because that is a precondition to the exercise of jurisdiction to determine the application; while failure to submit an EES for non-designated development may not lead to invalidity.306 [page 1005] Invalidity also may not attach to any breach of an implied obligation. In Corowa v Geographe Point Pty Ltd (2007) 154 LGERA 132, for example, Jagot J said (at [38]) that:

Invalidity potentially attaches to breach of the substantive threshold requirement to submit a species impact statement with an application in circumstances where that was required (potential to significantly impact on threatened species) but not to any subsidiary implied obligation on the consent authority to form an opinion about that substantive requirement; that is, whether the impact was significant or not so as to require production of a SIS. If the jurisdictional precondition to making the decision had in fact been satisfied (determination whether an SIS was necessary in the circumstances) then serious inconvenience would result, and the objects of the Act would not be furthered, if breach of any implied obligation (consideration of evidence that went to determining significance, thus resulting in a failure to consider the relevant matters required before a decision could be made) resulted in invalidity.

22.79 Merely establishing a legal error, therefore, is not necessarily enough to justify the court awarding a remedy; the error must have been material to the decision-making process. Although such an error need not be of critical or decisive significance, the court will not remedy merely minor or immaterial breaches.307 To determine whether an error is a material error, it is necessary to have regard to the totality of factors required to be taken into consideration and the weight to be attributed to each, bearing in mind that weighting of various factors is a function of the decision-maker.308 In Minister for Planning v Walker (2008) NSWCA 224, Hodgson J said if a decision-maker failed to consider whether a particular stated object of the legislation was relevant to the decision, or wrongly concluded that the object was not relevant, this would not, without more, make the decision void. It seems that the ‘without more’ qualification would be met if the necessity to consider the relevant object were plainly material to the decision-making process, or failed to establish the bona fides of the decision-making process. An example where neither of these conditions were met is Nature Conservation Council of New South Wales Inc v Minister Administering the Water Management Act 2000 (2005) 137 LGERA 320, where the New South Wales Court of Appeal held that provisions of a water sharing plan that did not fulfil, on the face of the plan, the statutory rules for identification, establishment and maintenance of water for fundamental ecosystem health, but nevertheless did, as a matter of substance, contain such rules, should not be struck out as invalid. The statute indicated no legislative purpose to invalidate the plan for such a failure.309 Tasmanian Heritage Council v Cita Property Group Pty Ltd [2010] TASSC 68 concerned a building that was entered in the Tasmanian Heritage Register but not all [page 1006] the statutory requirements regarding entry were fulfilled. The Resource Management and Planning Appeal Tribunal determined that as the entry was

invalid, any purported decision of the Heritage Council, in reliance upon that entry, was a nullity and therefore no lawful appeal could lie to the tribunal against a nullity. The court held, however, that the requirements of the Act concerning listings were not preconditions for entry to the register. Although there was a legal requirement for the Heritage Council to comply with the Act with regard to the entry of a building in the register, an entry that did not comply with that requirement was not necessarily invalid. The legislative purpose that a failure to comply with the requirements should lead to the entry being invalid could not be found in the construction of the Act. The tribunal had therefore erred in law in holding that failure to comply with certain provisions of the Act resulted in there being no valid entry in the Heritage Register. Ultimately the question of validity must be determined by construing the statute as a whole.310 For example, in Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulation [2014] WASC 468, the Supreme Court of WA held that environmental licences will not be automatically declared to be invalid because of a failure to comply with statutory consultation requirements. The provisions of the relevant Act did not express an intent that a failure to comply with the consultation provisions would result in invalidity; and in any case, separate requirements for public notice enabled any interested party to comment on a proposal, even if their view was not explicitly sought. Another approach to invalidity, particularly where subordinate documents such as management plans or conditions of consent are concerned, may be to strike out the offending provision, leaving the rest of the document intact. This depends on whether the offending provision can be effectively severed from the rest without fundamentally changing the nature of the plan or the consent. If severance would completely alter the manner in which the plan or consent operates then the document would have to be declared invalid in its entirety.311

1.

Relevant courts and tribunals are referred to at 2.72.

2.

Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) Pt 7 Div 3; see also ss 468 and 469 (reconsideration of conservation orders); 480J (remediation determinations). And see Western Australian Land Authority (Landcorp) v Minister for Sustainability, Environment, Water, Population and Communities [2012] FCA 226 (reconsideration of impact of proposal on threatened species).

3.

For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) ss 82A–82D.

4.

Victorian Civil and Administrative Tribunal Act 1998 s 51A.

5.

For example, building and development committees under the Sustainable Planning Act 2009 (Qld) Ch 7 Pt 2.

6.

See 22.13.

7.

Cooke, ‘Planning and Building: Is There a Case for Appeals on the Merits’ (1993) 10 EPLJ 303, argues that, generally, there is no need for appeals on the merits and that appeals should be largely restricted to judicial review. Where a statute confers a right to apply for ‘review’ of a decision, then the provision must be examined to determine whether that means ‘judicial’ or ‘merits’ review. The power of the review body to substitute its own decision for the decision under review will indicate merits review, although such a decision may well be open to determinations of illegality in the process; see, for example, Environment Centre Northern Territory (NT) Incorporated v Minister for Land Resource Management [2015] NTSC 30.

8.

See generally Gardner, ‘Appeals against Administrative Decisions Affecting Water Resources’ (1999) 16 EPLJ 341; Lipman, ‘The NSW Land and Environment Court: Reforms to the Merit Review Process’ (2004) 21 EPLJ 415.

9.

See 10.69.

10. So named because the first two parties are the applicant and the decision-maker. See generally Hodgson, ‘Third Party Appeals in South Australia, 1972–1993’ (1996) 13 EPLJ 8. 11. See 10.70. 12. For example, Threatened Species Conservation Act 1995 (NSW) s 106; Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 303CG. 13. For example, Land and Environment Court Act 1979 (NSW) s 39A; Environment, Resources and Development Court Act 1993 (SA) s 17; Sustainable Planning Act 2009 (Qld) ss 482 and 485; Resource Management and Planning Appeal Tribunal Act 1993 (Tas) s 14; Perorad Care Pty Ltd v Frankston City Council (2004) 140 LGERA 112. And see also 19.55 and following. 14. Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157; Greenwood v Warringah Council [2013] NSWLEC 223. 15. See ; and see Williams, ‘The Land and Environment Court’s Planning Principles: Relationship with Planning Theory and Practice’ (2005) 22 EPLJ 401; Pearson and Williams, ‘The New South Wales Planning Reforms: Undermining External Merits Review of Land-use Decision-making?’ (2009) 26 EPLJ 19. 16. Available on the Land and Environment Court website at . 17. These are available on the VCAT website at . 18. See generally Cabarrus, ‘Merits Review of Commonwealth Environmental Decision-making’ (2009) 26 EPLJ 113. 19. See 10.70 and following; and see Pearson and Williams, ‘The New South Wales Planning Reforms: Undermining External Merits Review of Land-use Decision-making?’ (2009) 26 EPLJ 19. 20. See generally, ‘Report of the LEC Working Party’, New South Wales Attorney-General, 2001 (the Cripps Report), which conducted an extensive review of the merits of merits review, concluding that such review was warranted, even if certain changes were needed. See also Ryan, ‘Court of Hope and False Expectations: Land and Environment Court 21 Years On’ (2002) 14(3) JEL 301 at 311; Lipman, ‘The New South Wales Land and Environment Court: Reforms to the Merit Review Process’ (2004) 21 EPLJ 415. A British inquiry (see Grant, ‘Environment Court Project’, Final Report, Department of the Environment, Transport and the Regions, 2000) recommended adoption in the United Kingdom of the New South Wales model for a specialist environment court, but this proposal was subsequently rejected by the British government. 21. See, for example, Sustainable Planning Act 2009 (Qld) s 495 (appeal by way of hearing anew).

22. Ciccarello v City of Charles Sturt [2010] SAERDC 49. 23. De Tournouer v Department of Natural Resources and Water [2009] QLAC 0006. A tribunal is obliged to consider the planning controls in force on the date on which its decision is made: Sisters Wind Farm Pty Ltd v Moyne Shire Council [2012] VSC 324. 24. Preston, ‘Third Party Appeals in Environmental Matters in New South Wales’ (1986) 60 ALJ 215, has advanced several reasons to support moving the burden of proof from the objector/appellant to the proponent. Broadly, these are that as the developer knows the proposal better than anyone, he or she should be in the best position to explain it in detail; that public participation is best achieved if the developer commences proceedings; and the proponent generally has better access to finance, information and resources than the appellant. Finally, Preston refers to the ‘irreversibility’ of many environmental decisions and counsel’s prudence in dealing with development proposals, suggesting that developers ‘should, therefore, be required to prove that development is the better course of action than preservation’. 25. Nati v Baulkham Hills Shire Council (2002) 120 LGERA 301; FastBuck$ v Dudley Pastoral Co Pty Ltd (No 2) (2002) 120 LGERA 80. Note, however, that in Queensland, under the Sustainable Planning Act 2009 (Qld) s 457, it has been said that the effect of this section is to shift the ‘each party should bear their own costs’ philosophy more towards the civil rules that ‘costs should follow the event’; see MC Property Investments Pty Ltd v Sunshine Coast Regional Council (No 2) [2013] QPEC 39. 26. For example, Water Act 2000 (Qld) s 882; and see Reed v Qcoal Sonoma Pty Ltd [2014] QLAC 8. See also Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 109 and Kapiris v Macedon Ranges Shire Council [2012] VCAT 1969; Resource Management and Planning Appeal Tribunal Act 1993 (Tas) s 28(1); State Administrative Tribunal Act 2004 (WA) s 87(1). 27. See Edgar, ‘Participation and Responsiveness in Merits Review of Polycentric Decisions: A Comparison of Development Assessment Appeals’ (2010) 27 EPLJ 473. 28. For example, Sustainable Planning Act 2009 (Qld) s 457; Environment, Resources and Development Court Act 1993 (SA) s 17(4), (4a); Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 109; State Administrative Tribunal Act 2004 (WA) s 87. 29. Broadwater Action Group Inc v Richmond Valley Council (No 2) (2003) 129 LGERA 401. 30. Oshlack v Richmond River Council [1998] HCA 11 at [69]; Nati v Baulkham Hills Shire Council (2002) 120 LGERA 301; Evans v Maclean Shire Council [2004] NSWLEC 89 at [21]–[24]. 31. Mudie v Gainriver Pty Ltd (No 2) (2002) 124 LGERA 393; Hoffie v Brisbane City Council [2013] QPEC 41 (failure to proceed bona fide at mediation). 32. This could, for example, be by way of a court Practice Direction: see Maurici v Chief Commissioner of State Revenue (2001) 114 LGERA 376. 33. See 20.4. 34. See also Resource Management and Planning Appeal Tribunal Act 1993 (Tas) s 28. 35. Community Association DP 270253 v Woollahra Municipal Council (No 2) [2014] NSWLEC 8. 36. [2006] NSWLEC 70. See Matic v Mid-Western Regional Council (No 3) [2009] NSWLEC 1220 at [23]. 37. Community Association DP 270253 v Woollahra Municipal Council [2015] NSWCA 80. 38. Council of the City of Sydney v Base Backpackers Pty Ltd [2015] NSWLEC 63. 39. Meriton Apartments Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 63. 40. For the particular difficulties in adducing evidence in cases involving Aboriginal interests, see Sneddon, ‘Aboriginal Objections to Development and Mining Activities on the Grounds of

Adverse Impacts to Sites of Spiritual Significance: Australian Judicial and Quasi-judicial Responses’ (2012) 29 EPLJ 217. 41. Land and Environment Court NSW Practice Direction 22 Expert Witness Practice Direction 2003. 42. Supreme Court Rules 1970 (NSW) Pt 39 r 1; Land and Environment Court Practice Direction on Court Appointed Experts 2005; see also Land and Environment Court Pre-hearing Practice Direction 17 2003 (NSW) cl 18(a), which requires the parties to indicate whether expert evidence is required and why the court should not appoint an expert: Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 94; Environment, Resources and Development Court Act 1993 (SA) s 27; State Administrative Tribunal Act 2004 (WA) s 64. 43. See also Victorian Civil and Administrative Tribunal Act Sch 3 (extensive powers to manage expert witnesses and expert evidence). The powers of the Land and Environment Court are set out by Justice Biscoe at . 44. See Preston, ‘Appointment of Court Appointed Expert Witnesses in the Land and Environment Court’, available on the Land and Environment Court website at . Giving ‘unprofessional’ evidence may lead to costs orders being made against an expert witness, loss of professional credibility, or even proceedings being taken for contempt or perjury. 45. Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791. See also Willoughby City Council v Transport Infrastructure Development Corporation (No 2) [2008] NSWLEC 238 (report compiled by employee contained not only facts but also partisan opinions, which demonstrated that she had clearly adopted the role of an advocate for a party). 46. For example, Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. 47. Shellharbour City Council v Minister for Planning [2011] NSWCA 195 at [35]. 48. See, for example, Hinset Pty Ltd v Lane Cove Council [2011] NSWLEC 120. 49. Evidence Act 1995 (Cth) s 138; and see, for example, Wollongong City Council v Ensile Pty Ltd; Wollongong City Council v Hogarth (No 2) [2008] NSWLEC 146; Gosford City Council v Brand [2006] NSWLEC 422. A court may also have powers to order inspection of property: see, for example, Williams v Homestake Australia Ltd [2002] NSWLEC 5; though see also Director-General, Department of Planning v Epacris Pty Ltd [2006] NSWLEC 306 where the power was denied because of the absence of any enabling legislation. 50. See Lyster, ‘Should we Mediate Environmental Conflict?: A Justification for Negotiated Rulemaking’ (1998) 20 Syd L Rev 579; Horn, ‘Mediation of Environmental Conflicts’ (2005) 22 EPLJ 369. 51. See Preston, ‘The Use of Alternative Dispute Resolution in Administrative Disputes’, available at : ‘The procedural law regulating civil proceedings commonly imposes a duty on courts to give effect to the overriding purpose of the civil procedural law which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In order to further the overriding purpose, proceedings are to be case managed by the court with the object of achieving the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable to the parties’: at 5. 52. For example, Administrative Appeals Tribunal Act 1975 (Cth) Pt 4 Div 3; Environment, Resources and Development Court Act 1993 (SA) s 16 (conference of the parties), s 28B (mediation and conciliation); Sustainable Planning Act 2009 (Qld) s 491; Resource Management and Planning Appeal Tribunal Act 1993 (Tas) ss 17 (conferences of the parties) and 16A (mediation); Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 83 and 84 (conferences of the parties), ss 88– 93 (mediation). Although the concept of mediation suggests a voluntary process, mediation can,

nevertheless, be compulsorily required; see, for example, Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 88 and 89. 53. See Preston, ‘Conciliation in the Land and Environment Court of New South Wales: History, Nature and Benefits’ (2007) 13 LGLJ 110. Conciliation conferences have increased from 17 in 2005 to 632 to 2010; see Preston, ‘The Use of Alternative Dispute Resolution in Administrative Disputes’, note 52 above at 14. 54. Land and Environment Court Rules 2007 (NSW) r 3.8. 55. Land and Environment Court Act 1979 (NSW) s 34; Land and Environment Court Rules 2007 (NSW) r 3.8. 56. See Parry, ‘The Use of Facilitative Dispute Resolution in the State Administrative Tribunal of Western Australia — Central Rather Than Alternative Dispute Resolution in Planning Cases’ (2010) 27 EPLJ 113. 57. See Parry, note 56 above, at 115. 58. This will commonly be a public servant, minister or inferior court or tribunal, but could extend to the making of regulations by the representative of the Crown (a state Governor or the GovernorGeneral); see R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170. On collective decisions of Cabinet, see South Australia v O’Shea (1987) 163 CLR 378. In Khuu & Lee Pty Ltd v Corporation of the City of Adelaide [2011] SASCFC 70, the court said that the English doctrine exemplified by R (Beer (t/as Hammer Trout Farm) v Hampshire Farmers’ Markets Ltd [2004] 1 WLR 233, that a decision having a sufficient public element, flavour or character to bring it within the purview of public law is reviewable, has not yet gained acceptance in Australia. An ordinary decision of the council made in the course of a conventional commercial relationship is not therefore an administrative decision affecting rights interests and legitimate expectations that would be amenable to judicial review. The term ‘decision’ may not extend to recommendations that are merely advisory in nature; see Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104. 59. In effect, ‘subordinate legislation’. In Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2014] FCA 117, ministerial declarations in relation to declared commercial fishing activities were treated as determinations of a legislative character, though whether a particular decision is to be characterised as legislative or administrative may be nothing more than a ‘distracting complication’ (Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2014] FCA 117 at [62], as principles of judicial review may be applied to both, except in relation to the issue of ‘unreasonableness’ where a decision of a legislative character could not be reviewed on this basis except to the extent it displays ‘no real connection’ with the source of power to make it: Parker v Minister for Sustainability, Environment, Water, Population and Communities (2012) 205 FCR 415 at [62]. 60. See, for example, Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 291; Walsh v Parramatta City Council (2007) 161 LGERA 118 at [67] per Preston J; JPR Legal Pty Ltd v Marrickville Council [2009] NSWLEC 156 at [40] per Pain J; East Melbourne Group Inc v Minister for Planning [2005] VSC 242 at [60] per Morris J. 61. See, for example, Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274; Queensland v Commonwealth (1989) 167 CLR 232; Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151; Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33. 62. Outback Leather Pty Ltd v Director-General, National Parks and Wildlife Service (1996) 92 LGERA 319. 63. Re Minister of State for Conservation and Land Management and the Environment; Ex parte West Australian Field and Game Association Inc (1992) 78 LGERA 81.

64. Australian Speleological Federation Inc v Minister for Environment & Natural Resources (1994) 84 LGERA 29. 65. Haggarty & Morrison Pty Ltd v New South Wales (1995) 98 LGERA 226. 66. Judicial Review Act 1991 (Qld); Judicial Review Act 2000 (Tas); Administrative Decisions (Judicial Review) Act 1989 (ACT). The Queensland legislation states that interpretation of the provisions of the Act should accord with the Commonwealth ADJR Act (s 16) and Sch 1 lists the comparative provisions of the ADJR Act alongside the provisions of the state legislation. 67. On the question of what amounts to a ‘decision’, see Margarula v Minister for Environment (1999) 103 LGERA 240 (decision to prefer one method of environmental assessment (EA) rather than an alternative and recommendations in respect of proposed development were not ‘decisions’ that were reviewable); Tasmanian Conservation Trust Inc v Minister for Resources & Gunns (No 2) (1996) 90 LGERA 106; Redland Shire Council v Bushcliff Pty Ltd (1996) 93 LGERA 107. Delegated legislation, for example a regulation, is not a ‘decision’, but may be reviewed to determine whether there is a ‘real connection’ between the regulation and the purpose for which the statute conferred the power to make it: see, for example, Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151; (1996) 135 ALR 128. 68. See also Judicial Review Act 1991 (Qld) ss 20–24; Judicial Review Act 2000 (Tas) ss 17–21; Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 5–7. 69. Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. 70. Section 13(1). In a different context, it has been said that the standard required of a written statement of reasons is that the statement must explain the actual process of reasoning by which the decision-maker in fact formed its opinion and must do so in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law; see Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43. However, the Attorney-General may also seek to suppress the publication of any material requested if it is considered that disclosure ‘would be contrary to the public interest’. The court may still require the production of the documents or other evidence, but might naturally be reluctant to do so if the Attorney-General stresses the importance of confidentiality. See also Judicial Review Act 1991 (Qld) Pt 4; Judicial Review Act 2000 (Tas) Pt 5; Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 13–15. 71. Hill v Woollahra Municipal Council (2003) 127 LGERA 7. 72. Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1032. 73. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Deane J at 366; Loader v Moreton Bay Regional Council [2013] QCA 269. 74. See 22.71. 75. See also East Melbourne Group Inc v Minister for Planning [2008] VSCA 217. 76. See Friends of Hinchinbrook Society Inc v Minister for Environment & Ors [1997] FCA 55. 77. Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) (2008) 162 LGERA 154. The presumption of regularity does not apply so as to give evidentiary priority to an explanation brought into existence after the power is exercised. 78. Greenwood v Warringah Council [2013] NSWLEC 223. 79. Loader v Moreton Bay Regional Council [2013] QCA 269. 80. Freedom of Information Acts 1989 (NSW); 1992 (Qld); 1991 (SA); 1991 (Tas); 1982 (Vic); 1992 (WA). 81. See generally Preston, Environmental Litigation, Law Book Co, Sydney, 1989, p 178 and following. 82. See also Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607.

For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 115ZJ(1): ‘The 83. validity of an approval or other decision under this Part cannot be questioned in any legal proceedings in which the decision may be challenged except those commenced in the Court within 3 months after public notice of the decision was given’; Judicial Review Act 1991 (Qld) s 26 (28 days from when decision was made). Time limits are also commonly imposed on merits appeals, which are more likely to be strictly enforced because the right to merits review is based upon conferment of this right by the statute: see, for example, Figtree Reserve Pty Ltd v Goulburn Mulwaree Shire Council (Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 97: no discretion in court to vary time-limit for applicant appeal). 84. See Greendene Development Corp Pty Ltd v Environmental Protection Authority (2003) 134 LGERA 228. 85. Maitland City Council v Anambah Homes Pty Ltd (2005) 147 LGERA 234; Minister Administering Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352; Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning [2010] SASC 93. 86. Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349. See also Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217. 87. Corowa v Geographe Point Pty Ltd (2007) 154 LGERA 117. 88. Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349. 89. Brown v Randwick City Council [2011] NSWLEC 172. 90. See 22.31. 91. Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207. 92. Corowa v Geographe Point Pty Ltd (2007) 154 LGERA 117. 93. Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 75X. 94. Bell JA preferred not to express an opinion on this matter: at [66]. 95. See 21.5. 96. See 21.18. 97. For an example where a privative clause was interpreted as clearly excluding applications for orders relating to the assessment or approval of a project (the Tasmanian pulp mill project), see LandonLane v Minister for Economic Development and Tourism and Premier of Tasmania [2009] TASSC 50. 98. Commentary on paper by Dr M Groves, ‘Federal Constitutional Influences on State Judicial Review’ by The Hon Justice Brian J Preston, available at . 99. See also Pfeiler v Native Vegetation Council [2012] SASC 105 in which the court held that remedial proceedings brought after the end of a four-year statutory period were properly initiated; the purpose of the relevant provisions was to enliven protection of the public interest, not protect the offender. See also Finn, ‘Constitutionalising Supervisory Review at State Level: The End of Hickman?’(2010) 21 PLR 92 at 102. 100. See Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; Trives v Hornsby Shire Council [2015] NSWCA 158. 101. The duty to accord procedural fairness may be excluded by conferment of statutory powers that are of such general application, and that involve such a significant policy content, that by their nature they indicate an intention by parliament to exclude the obligation to accord procedural fairness: see, for example, Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33; Vanmeld Pty Ltd v Fairfield City Council (1999) 101 LGERA 297.

102. See also Corporation of the City of Adelaide v City of Salisbury (1998) 100 LGERA 160. 103. In Hodgens v Gunn; Ex parte Hodgens (1989) 68 LGRA 395, a ministerial power to order forfeiture of animals to the Crown under the Animals Protection Act 1925 (Qld) s 11(4), was held to be subject to the right to be heard, except possibly in a case of genuine emergency. The Western Australian Supreme Court has also held that the practice of referring administrative planning appeals to the minister denied procedural fairness to appellants because appellants were not given any information about the case being mounted by respondents: Dilatte v MacTiernan [2002] WASCA 100; and see Willey and McMullen, ‘Planning Appeals in Western Australia: Where to Now?’ (2004) 21 EPLJ 124. 104. See also Lismore City Council v Ihalainen [2013] NSWLEC 149; Maddingley Brown Coal Pty Ltd v Environment Protection Authority [2013] VSC 582; Hallett v City of Port Phillip [2015] VSC 313. 105. Attorney-General (Tas) v Cameron (2007) 152 LGERA 45. 106. Wilcox J, however, doubted whether such a decision did attract obligations of natural justice and whether in fact it was actionable at all since it involved Australia’s international relations and concerned a decision to implement a treaty. 107. For example, a right to make submissions in respect of an application for development does not imply the right to a hearing: see Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213. 108. R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] Env LR 29 (failure to consult about changes to government policy on nuclear power stations despite commitment to consultation in government White Paper). 109. Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 94 LGERA 380. 110. Somerville v Dalby (1990) 69 LGRA 422; Hawkesbury City Council v Sammut (2000) 111 LGERA 208. A regular practice of notification may also involve a legitimate expectation that material will be updated: Barton Securities Ltd v Warringah Council [2009] NSWLEC 179. 111. For cases where legitimate expectations were either rejected or held to have been reasonably met, see Williams v Director-General, Department of Environment and Conservation (2005) 138 LGERA 442; Country Energy v Williams (2005) 141 LGERA 426; Broad Henry v Director-General, Department of Environment and Conservation (2007) 159 LGERA 172. 112. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33; Country Energy v Williams (2005) 141 LGERA 426; Geelong Community for Good Life Inc v Environment Protection Authority (EPA) (2008) 159 LGERA 438. 113. In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, the High Court held that a legitimate expectation that a decision would be made in a certain way — that is, by taking into account matters specified by an international convention — could also be created by the existence of a convention that Australia had ratified but the provisions of which had not yet been enacted into domestic law. This would not oblige the decision-maker to follow the procedures laid down in the Convention. However, if the decision-maker intended to depart from this ‘legitimate expectation’, then the person likely to be affected should be so informed. 114. Geelong Community for Good Life Inc v Environment Protection Authority (EPA) [2008] VSC 185; Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; Tasmanian Water and Sewerage Corporation (Northern Region) Pty Ltd v Tasmanian Planning Commission [2013] TASSC 15. 115. R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213. 116. R (on the application of Edwards) v Environment Agency (No 2) [2007] Env LR 9 (internal reports on burning waste tyres not disclosed to the applicant); R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] Env LR 29.

117. Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306. 118. See 22.57. 119. Baarmutha Residents Association Inc v Indigo Shire Council (2005) 142 LGERA 204; Friends of Mallacoota v Minister of Planning [2010] VSC 222. 120. Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294; Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133; [1999] NSWCA 196. The dissenting judgment of Fitzgerald JA, however, pointing out that different persons would be affected by the modified proposal, is also compelling. 121. Harvey v Minister Administering the Water Management Act 2000; Tubbo v Same (2008) 160 LGERA 50 (existing licence holders had no right to present an individual case or present a case individually in respect of proposed amendment of a water sharing plan). 122. Medway v Minister for Planning (1993) 80 LGERA 121; Australian Speleological Federation v Minister for Environment & Natural Resources (1994) 84 LGERA 29; and see Bradbury, ‘The Duty to Observe Procedural Fairness in the New South Wales Planning System’ (1995) 12 EPLJ 440. 123. Kiao v West (1985) 159 CLR 550. 124. Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133. 125. Williams v Director-General, Department of Environment and Conservation (2005) 138 LGERA 442. 126. Tasmanian Water and Sewerage Corporation (Northern Region) Pty Ltd v Tasmanian Planning Commission Administering the National Parks & Wildlife Act 1974 (NSW) (Blue Cow case) [2013] TASSC 15. 127. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 64; Guthega Developments Pty Ltd v Minister (1986) 7 NSWLR 353 at 368. 128. See also R v Davis; Ex parte Calvary Hospital Hobart Inc (1999) 103 LGERA 169. 129. South Australia v O’Shea (1987) 163 CLR 378; Minister for Arts, Heritage and Environment v PekoWallsend Ltd (1987) 15 FCR 274; Western Australian Land Authority (Landcorp) v Minister for Sustainability, Environment, Water, Population and Communities [2012] FCA 226; and see O’Mara, ‘Procedural Fairness and Public Participation in Planning’ (2004) 21 EPLJ 62. 130. Valley Watch Inc v Minister for Planning (1994) 82 LGERA 209. 131. South Australia v Slipper (2004) 137 LGERA 374. 132. Hills Shire Council v Mouawad [2014] NSWLEC 59 (judge disqualifying herself from proceedings due to adverse findings against the defendant made by the same judge in previous proceedings). 133. See, for example, Resource Management and Planning Appeal Tribunal Act 1993 (Tas) s 16(1)(d). In Brighton Council v Compost Tasmania Pty Ltd (2000) 109 LGERA 190, the tribunal was held to have denied the appellants natural justice by failing to allow them an opportunity to read and consider a report made to council, as required by s 19 of the Act. In Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65, the failure of a commissioner of the NSWLEC to advise parties to proceedings that he intended to exercise a statutory discretion in relation to modification of a development consent was held to be a denial of procedural fairness. 134. Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147 (however, in not imposing a draft condition proffered by council, a commissioner did not fail to accord procedural fairness). 135. Kari and Ghossayn Pty Ltd v Sutherland Shire Council (2006) 150 LGERA 231. 136. Hudson v Director-General, Department of Environment, Climate Change and Water [2012]

NSWCCA 92. 137. Twist v Randwick Municipal Council (1976) 136 CLR 106; Annetts v McCann (1990) 170 CLR 596; Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307 (statutory code for disqualification of members of EPA due to pecuniary interest supplants common law principles of natural justice, particularly those relating to bias). 138. See, for example, Vanmeld Pty Ltd v Fairfield City Council (1999) 101 LGERA 297; DeAngelis v Pepping [2014] NSWLEC 108. 139. See, for example, Australian Speleological Federation Inc v Minister for Environment & Natural Resources (1994) 84 LGERA 29; Lainson v Sutherland Shire Council (1998) 108 LGERA 1; Ramholdt v Planning Panels Victoria (2004) 140 LGERA 273; Clarence City Council v South Hobart Investment Pty Ltd (2007) 152 LGERA 24. 140. Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 141 LGERA 106. 141. South Australia v Slipper (2004) 137 LGERA 374. 142. Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88; Lainson v Sutherland Shire Council (1998) 108 LGERA 1; Irwin v Meander Valley Council (2007) 157 LGERA 347; Harvey v Minister Administering the Water Management Act 2000; Tubbo v Same (2008) 160 LGERA 50. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 131AA(7) states that this section ‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule’ in relation to matters dealt with under that section: see Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178; FCAFC 175. 143. Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91; Harvey v Minister Administering the Water Management Act 2000; Tubbo v Same (2008) 160 LGERA 50. Statutory procedures commonly place strict time limits, for example, on legal challenges to planning decisions. See generally Joyce, ‘Privative Clauses under ss 35 and 104A of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) and the Implications for Public Interest Litigation’ (1998) 15 EPLJ 362; see also Vanmeld Pty Ltd v Fairfield City Council (1999) 101 LGERA 297. 144. Antoniou v Roper (1990) 70 LGRA 351. 145. Yallingup Residents Association Inc v State Administrative Tribunal (2006) 148 LGERA 132. 146. See Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164. 147. In Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 141 LGERA 106, the Western Australia Court of Appeal described the test as a real not remote possibility, not a probability. 148. See also Isbester v Knox City Council [2015] HCA 20; Williams v Director-General of the Department of Environment and Conservation [2004] NSWLEC 613; F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) (2007) 158 LGERA 250; McGee v Boroondara City Council [2011] VSC 78; Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307 (decision of WA EPA set aside because of pecuniary interests and conflicts of interest of some members). An association between a commissioner sitting on a merits hearing and one of the parties to the appeal may give rise to a reasonable apprehension of bias even where there is no connection between the association and one of the issues in dispute: see Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300. 149. Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 per McHugh J at 459. 150. Johnson v Johnson (2000) 201 CLR 488. 151. Although the test for apprehension of bias is the same whether the decision-maker is acting in an administrative or judicial capacity (Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438), the application of the principle must sometimes recognise and accommodate differences between court

proceedings and other kinds of decision-making: Ebner v Official Trustee (2000) 176 ALR 644; Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982. 152. A personal interest in the proceedings could be characterised as ‘conflict of interest’ rather than ‘pre- judgment’, invoking different considerations: at [28] per Spigelman CJ. 153. Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178; FCAFC 175. 154. F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) (2007) 158 LGERA 250. 155. Magee v Boroondara City Council [2011] VSC 78. 156. R v West Coast Council; Ex parte Strahan Motor Inn (1995) 87 LGERA 383; Pipi Holdings Pty Ltd v City of Caloundra (2000) 111 LGERA 117; F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) (2007) 158 LGERA 250. 157. Mildura Rural City Council v Minister for Major Projects (2006) 144 LGERA 335. 158. Coastal Estates Pty Ltd v Bass Coast Shire Council [2010] VCAT 1807. The purpose of the panel hearing is to give submitters the opportunity to clarify, explain or support their prior written submissions. The purpose of the panel hearing is not to decide rights, but to allow an expert panel to hear and consider submissions in order to make recommendations that would guide the exercise of discretion in future decision-making. 159. See, for example, Kingscote District Council v Kangaroo Island Eco Action Inc (1996) 92 LGERA 117. Legislation may clearly state that substantial compliance with the procedural requirements may suffice, particularly if no adverse effects from the procedural irregularity are apparent: see, for example, Sustainable Planning Act 2009 (Qld) ss 57, 119, 147 and 194; and on the question whether evidence or lack of evidence of such impairment is a question of fact or law, see Lewani Springs Resort Pty Ltd v Gold Coast City Council [2010] QCA 145. 160. See, for example, Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc (1996) 98 LGERA 335; Vanmeld Pty Ltd v Fairfield City Council (1999) 101 LGERA 297; John Brown Lenton & Co Pty Ltd v Minister for Urban Affairs and Planning (1999) 106 LGERA 150; Belongil Progress Association Inc v Byron Shire Council (1999) 106 LGERA 202; Director-General, Department of Industry and Investment NSW v Mato Investments Pty Ltd [2014] NSWCCA 132. 161. And on essential and non-essential preconditions, see 22.46. 162. Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306. 163. See also Williams v Director-General of the Department of Environment and Conservation [2004] NSWLEC 613. 164. Director-General, Department of Industry and Investment NSW v Mato Investments Pty Ltd [2014] NSWCCA 132. Evidence that a would-be objector had been confused by the shortness of notice and thereby lost an opportunity to object is cogent evidence that the opportunity to make a submission had been substantially restricted. But equally, the absence of any such evidence is capable of giving rise to an inference that no such restriction existed: Lewani Springs Resort Pty Ltd v Gold Coast City Council [2010] QCA 145. 165. Scurr v Brisbane City Council (1973) 133 CLR 242; Nelson v Burwood Municipal Council (1991) 75 LGRA 39; Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317; Norvill v Chapman (1995) 133 ALR 226; Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91. In Hornsby Shire Council v Porter (1990) 70 LGRA 175, the court construed a statutory provision that enabled adjoining landowners to inspect an application, to involve also the giving of notice about the application, even though such a requirement had not been expressed. 166. Scurr v Brisbane City Council (1973) 133 CLR 242; Director-General, Department of Industry and Investment NSW v Mato Investments Pty Ltd [2014] NSWCCA 132.

167. See, for example, Forman v Australian Capital Territory Planning and Land Authority [2013] ACTSC 167. 168. Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549: see further 20.5. 169. See Hunter Resources Ltd v Melville (1988) 164 CLR 234. 170. For example, Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307 (purported decisions affected by participation of members who were disqualified from participation by reason of pecuniary interests in the subject-matter). See further 22.46. 171. See, for example, Maitland City Council v Anambah Homes Pty Ltd (2005) 147 LGERA 234 (power to impose condition of development consent not supported by the legislative provision under which it was purported to be made. The invalid condition could be severed from the rest of the consent because it was not fundamental to the operation of the consent): Charalambous v Ku-ringgai Council (2007) 155 LGERA 352 (imposition of bond for tree protection outside the scope for which bonds might be imposed under the legislation). 172. See 7.21. 173. See 2.63 and 7.14. 174. See 2.65. 175. See 21.18. In Re Michael; Ex parte WMC Resources Ltd (2003) 134 LGERA 246, the issue of this prerogative writ was determined not to be necessary because the official in question agreed to abide by the court’s decision. 176. Timbarra Protection Coalition Inc v Ross Mining NL (1996) 46 NSWLR 55; (1999) 102 LGERA 52. So, for example, if there is no statutory intent to invalidate a consent if an error is made, the error cannot be a jurisdictional error: Maule v Liporoni (2002) 122 LGERA 140. For a step-by-step guide to the concept of jurisdictional fact, see Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 at [39] per Biscoe J. 177. A jurisdictional fact is a criterion, the satisfaction of which enlivens the exercise of a statutory power or discretion: Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at [43]; Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 at [34], [164]. Identification of a jurisdictional fact involves two threshold questions: first, whether something is a precondition to the exercise of the power; second, if so, whether that precondition is an existence of fact in the real world, or whether it is merely a state of mind of the decision-maker; per Cowdroy J in Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419 at [73]. And see Bullen, ‘Legislative Limits on Environmental Decision-making: The Application of the Administrative Law Doctrines of Jurisdictional Fact and Ultra Vires’ (2006) 23 EPLJ 265. 178. Corporation of the City of Enfield v Development Assessment Commission (2000) 106 LGERA 419; Stewart v City of Belmont [2013] WASC 366. 179. See, for example, Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52; Gales Holdings Pty Ltd v Tweed Shire Council (2000) 110 LGERA 235. 180. Professional Fishers Association Inc v Minister for Fisheries (2002) 120 LGERA 61. 181. Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52; Cranky Rock Road Action Group v Cowra Shire Council (2006) 150 LGERA 81 (CA); Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; Corowa v Geographe Point Pty Ltd (2007) 154 LGERA 117. 182. Fullerton Cove Residents Action Group Inc v Dart Energy Ltd [2013] NSWLEC 38. 183. Corowa v Geographe Point Pty Ltd (2007) 154 LGERA 117; Drake-Brockman v Minister for Planning [2007] NSWLEC 490. Questions as to whether evidence satisfies an indeterminate test

such as ‘significance’ or ‘substantiality’ are generally questions of fact: Regional Land Development Corporation No 1 Pty Ltd v Banana Shire Council [2009] QCA 140; CPT Manager Ltd v Central Highlands Regional Council [2010] QCA 183. Questions of ‘significance’ in relation to town planning functions are also generally questions of fact in respect of which no appeal lies to a court: SLS Property Group Pty Ltd v Townsville City Council [2009] QCA 380. 184. Cranky Rock Road Action Group v Cowra Shire Council (2006) 150 LGERA 81 (CA); Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; MCC Energy Pty Ltd v Wyong Shire Council (2006) 149 LGERA 59; Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419. 185. Bungendore Residents Group Inc v Palerang Council (No 3) [2007] NSWLEC 251; Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274; Hub Action Group Inc v Minister for Planning (2008) 161 LGERA 136. 186. See Pearson, ‘Jurisdictional Fact: A Dilemma for the Courts’ (2000) 17 EPLJ 453. 187. The High Court did not have to determine whether the development was non-complying, merely whether the Supreme Court of South Australia had power to review the finding of the Development Commission that it was not. On the provisions of a planning scheme laying down essential preconditions for making decisions, see also Currey v Sutherland Shire Council (1998) 100 LGERA 365. 188. Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419 at [76]. 189. Hub Action Group Inc v Minister for Planning (2008) 161 LGERA 136 at [38]; R and S Krulow v Glamorgan Spring Bay Council [2011] TASRMPAT 147. 190. Walsh v Parramatta City Council [2007] NSWLEC 255; Minister for Planning v Walker (2008) 161 LGERA 423 at [35]; Terranora Group Management Pty Ltd v Director-General, Office of Environment and Heritage [2013] NSWLEC 198. 191. Terranora Group Management Pty Ltd v Director-General, Office of Environment and Heritage [2013] NSWLEC 198. And see 20.58 and 20.72. 192. Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231 at [87] per Biscoe J. 193. For example, Maddingley Brown Coal Pty Ltd v Environment Protection Authority [2013] VSC 582 (decision-maker did not state that it was satisfied of relevant matters, nor comply with notice requirements specified by regulations). 194. See Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWLEC 1. 195. See, for example, Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33. 196. Woolworths Ltd v Pallas Newco Pty Ltd (2004) 136 LGERA 288; Maitland City Council v Anambah Homes Pty Ltd (2005) 147 LGERA 234. 197. In Water Administration Ministerial Corporation v Mills (1999) 110 LGERA 371, the New South Wales Court of Appeal held that the corporation could grant unconditional approval for controlled works, but the decision to do so had to be consonant with the statutory scheme of the Act as a whole. 198. Development Regulations 1993 (SA) Sch 9 para 2(1)(f). 199. See also Packham v Minister for Environment (1993) 80 LGERA 205. 200. See, for example, Anthony Lagoon Station v Maurice (1987) 74 ALR 77; Foley v Padley (1984) 154 CLR 349; South Australia v Tanner (1988) 166 CLR 161; Commonwealth v Tasmania (1983) 158 CLR 1; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31;

Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1996) 92 LGERA 283; Maitland City Council v Anambah Homes Pty Ltd (2005) 147 LGERA 234. An invalid condition may be severable from the rest of the consent if its presence is not fundamental to the consent: see further 22.77. 201. Richard G Bejah Insurance & Financial Services Pty Ltd v Manning [2002] TASSC 36. 202. For certainty in relation to administrative orders, see 20.5. 203. R v Resource Management and Planning Appeal Tribunal; Ex parte North West Rendering Pty Ltd (2005) 138 LGERA 412; Bowden v Break O’Day Council (2008) 162 LGERA 49. 204. Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229; Kennedy v Director-General of the Department of Environment and Conservation [2006] NSWLEC 456; Mid-Western Community Action Group Inc v Mid-Western Regional Council [2007] NSWLEC 411; Pittwater Council v Minister for Planning [2011] NSWLEC 162. 205. Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737; Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at [24]; Mid Western Community Action Group Inc v Mid-Western Regional Council & Stockland Development Pty Ltd [2007] NSWLEC 411 at [21]. In Phelps v Development Consent Authority [2012] NTCA 02, the Northern Territory Court of Appeal struck down conditions that left to the parties the job of finalising the terms of the covenants that were in effect the conditions of the development permit. And on improper purpose, see 22.70. 206. Ulan Coal Mines Ltd v Minister for Planning (2008) 160 LGERA 20; Rivers SOS Inc v Minister for Planning (2009) 178 LGERA 347; Coffs Harbour City Council v Minister for Planning and Infrastructure [2012] NSWLEC 4. 207. Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2012] FCAFC 111 at [179]. 208. See also Transport Action Group Against Motorways v Roads and Traffic Authority (1999) 104 LGERA 133; [1999] NSWCA 196; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248; Barrington — Gloucester — Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197. 209. See Pittwater Council v Minister for Planning [2011] NSWLEC 162 at [76]; Barrington-GloucesterStroud Preservation Alliance Inc v Ministerfor Planning and Infrastructure [2012] NSWLEC 197. 210. Harris v Scenic Rim Regional Council [2014] QPEC 16. 211. For two cases where a court hearing a merits appeal failed to properly consider relevant considerations in relation to heritage properties, see Vorrasi v Adelaide City Council [2010] SASC 25 and Lakshmanan v City of Norwood [2010] SASCFC 15. 212. Ministerfor Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. 213. For example, in considering applications for development, see Chapter 10. Plans and policies, so long as not themselves ultra vires, would generally be considered relevant to decision-making: Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433. And on the reasonable interpretation of the relevance of planning policies and guidelines, see Rozen v Macedon Ranges Shire Council [2010] VSC 583. 214. Parramatta City Council v Hale (1982) 47 LGRA 319; Minister for Aboriginal Affairs v PekoWallsend Ltd (1986) 162 CLR 24; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11; Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229; Minister for Planning v Walker (2008) 161 LGERA 423. See further 22.62. 215. Great Barrier Reef Marine Park Authority v Indian Pacific Pearls Pty Ltd (2004) 135 LGERA 401.

216. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Kennedy v Director-General of the Department of Environment and Conservation [2006] NSWLEC 456; Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229. 217. Anderson v Director-General, Department of Environment and Conservation (2006) 144 LGERA 43 (failure to consider the significance of Aboriginal objects may also infringe relevant principles of intergenerational equity); Anderson v Ballina Shire Council [2006] NSWLEC 76; Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229; Anderson v Director-General, Department of Environment and Climate Change (2008) 163 LGERA 400 (consideration properly given). 218. Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd (2007) 34 WAR 403; East Melbourne Group Inc v Minister for Planning [2008] VSCA 217. See also Minister for Environment and Conservation v Simes [2007] SASC 248 (an application for approval is not necessarily in the public interest just because no assertion has been made that it is not). For a discussion of ‘public interest’ in the context of considerations of ESD, see 8.31. 219. Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396; St Helen’s Landcare and Coastcare Group Inc v Break O’Day Council [2007] TASSC 15. 220. Ministerial directions not to consider greenhouse issues, because these were to be the subject of separate inquiry, were declared unlawful. 221. See, for example, Salmal Constructions Pty Ltd v Richards (1998) 99 LGERA 423 (privacy of neighbours irrelevant to consideration of principles relevant to urban conservation); Greenpeace Australia Pacific Ltd v Chief Executive Officer of the Australian Radiation Protection and Nuclear Safety Agency (2002) 125 LGERA 233 (international best practice standards relevant but not required). 222. See Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270; Carstens v Pittwater Council (1999) 11 LGERA 1; BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237. Contrast, however, Alliance to Save Hinchinbrook v Environmental Protection Agency (2006) 145 LGERA 32 at [35] where Jones J in the Queensland Supreme Court held that a decisionmaker that took into account the principle in circumstances where the legislation did not require it could be interpreted as having taken into account an irrelevant consideration. 223. Carstens v Pittwater Council (1999) 11 LGERA 1. 224. See, for example, Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources (2005) 138 LGERA 11. 225. Rajendran v Tonkin [2004] VSCA 43 at [20]. 226. On the national Code and cabling generally, see Davies, ‘Telecommunications and Environmental Regulation’ (1997) 14 EPLJ 385; Finn and Forrester, ‘Subterranean Cabling: A Level Playing Field?’ (1996) LGLJ 130. 227. Similarly, taking into account the ‘irrational’ perceptions of objectors might be deemed to be irrelevant, at least if such perceptions influence the decision: see BHP Ltd v Blacktown City Council (1989) 130 LGERA 1. See also Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) (2008) 162 LGERA 154 (unsupported assertion that Australia would breach its international obligations if an extension for mining phosphate on Christmas Island was granted, held to be an irrelevant consideration). 228. See also Metgasco Limited v Minister for Resources and Energy [2015] NSWSC 453. 229. Australian Conservation Foundation v Forestry Commission (1988) 79 ALR 685 at 693. 230. Per Emmett, McKerracher and Foster JJ in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage & the Arts [2011] FCAFC 59 at [44]. See also Friends of King Edward Park Inc v Newcastle City Council (No 2) [2015] NSWLEC 76.

Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director of the Department of 231. Conservation and Land Management (1997) 94 LGERA 380. 232. Blue Wedges Inc v Minister for Environment, Heritage and the Arts (2008) 157 LGERA 428. The court should not necessarily infer from the failure of a decision-maker to refer expressly to such a matter, in the reasons for decision, that the matter has been overlooked; whether that inference should be drawn will depend on the circumstances of the particular case; Per Emmett, McKerracher and Foster JJ in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage & the Arts [2011] FCAFC 59 at [44]. 233. Central West Environment Council v Orange City Council (2003) 128 LGERA 169. 234. Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86. See also Fowler, ‘The Prospects of Judicial Review in Relation to Federal Environmental Impact Statement Legislation’ (1977) 11 MULR 1. 235. Drake-Brockman v Minister for Planning [2007] NSWLEC 490; Minister for Planning v Walker (2008) 161 LGERA 423; Blue Wedges Inc v Minister for Environment, Heritage and the Arts (2008) 157 LGERA 428; Barrington — Gloucester — Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197. 236. Gray v Minister for Planning (2006) LGERA 258. 237. For example, Protection of the Environment Operations Act 1997 (NSW) ss 13 (draft policies) and 45 (licensing); Water Board (Corporatisation) Act 1994 (NSW) s 22; Environment Protection Act 1993 (SA) ss 47 and 57; Environmental Protection Act 1994 (Qld) ss 44, 89 and 110, Sch 4 (standard criteria); Environment Protection Act 1970 (Vic) ss 20C and 26B. 238. For example, Protection of the Environment Operations Act 1997 (NSW) s 3(a); Protection of the Environment Administration Act 1991 (NSW) s 6(10)(a); Environment Protection Act 1993 (SA) s 10(1)(b). 239. R v District Council of Berri (1984) 51 LGRA 409. 240. R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333 per Gibbs CJ. 241. Minister for Immigration and Ethnic Affairs v Baker (1997) 24 AAR 457 at 463–4. 242. See also Zhang v Canterbury City Council (2001) 115 LGERA 373 at [64]. 243. See, for example, Hill v Woollahra Municipal Council (2003) 127 LGERA 7; Re City of Joondalup; Ex parte Mullaloo Progress Association Inc (2003) 132 LGERA 243; VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 128 LGERA 419; Harvey v Minister Administering the Water Management Act 2000; Tubbo v Same (2008) 160 LGERA 50. 244. Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) (2008) 162 LGERA 154. For example, a decision-maker hearing a merits appeal cannot simply put aside and substitute a standard set by a planning instrument for one the decision-maker considers more reasonable. This may lead the decision-maker to fail to comply with a statutory obligation to ‘consider’ the relevant planning instrument: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226. Neither does the presumption of regularity give evidentiary priority to an explanation or statement of reasons for a decision brought into existence after the power is exercised: see 22.21. 245. GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 at [78]–[84]. 246. Williams v Minister for Planning [2009] NSWLEC 5. 247. Sharples v Minister for Local Government [2008] NSWLEC 328. 248. See Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38; South East Forest Rescue Inc v Bega Valley Shire Council [2011] NSWLEC 250. 249. Parramatta City Council v Hale (1982) 47 LGRA 319; Mitchell v Vella (1999) 101 LGERA 333.

Importantly, where relevant facts are peculiarly within the knowledge of the respondent, or where the respondent has greater means to produce evidence than the plaintiff, then provided the plaintiff can adduce sufficient evidence from which a negative proposition might be inferred, the respondent carries the essential burden: Baiada v Waste Recycling and Processing Service New South Wales (1999) 130 LGERA 52. 250. Currey v Sutherland Shire Council (1998) 100 LGERA 365; Manly Council v Hortis (2001) 113 LGERA 321. 251. Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277. 252. See also Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 (failure to properly consider impacts of noise); New South Wales Land and Housing Corp v Campbelltown City Council (2002) 126 LGERA 348 (inadequate evaluation of impacts on threatened species); Central West Environment Council v Orange City Council (2003) 128 LGERA 169 (proper evaluation of impacts on threatened species). 253. Hunnam v Evans (2003) 129 LGERA 106. 254. Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88. 255. Azriel v New South Wales Land and Housing Corporation [2006] NSWCA 372 at [49]. 256. Belmorgan Property Development Pty Ltd v GPT RE Ltd (2007) 153 LGERA 450 at [28]; Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257. 257. See also F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) (2007) 158 LGERA 250; Walsh v Parramatta City Council [2007] NSWLEC 255; Anderson v Director-General, Department of Environment and Climate Change (2008) 163 LGERA 400. See also Spigelman, ‘The Integrity Branch of Government’ (2004) 78 ALJ 724 at 735, where this formulation was described as ‘trembling on the verge of merits review’. 258. See also Notaras v Waverley Council [2007] NSWCA 333; Minister for Planning v Walker (2008) 161 LGERA 423 at [35]. On unreasonableness as a ground of judicial review, see 22.71. 259. See Capital Airports Group Pty Ltd v Director General, New South Wales Department of Planning (No 2) [2011] NSWLEC 83 at [98]–[100] per Biscoe J; Alexander v Yass Valley Council [2011] NSWLEC 148 at [107]–[109] per Pain J. As Biscoe J pointed out in Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207 at [50], ‘as noted in Capital, the High Court in SZJSS did not mention, but its decision prevails over, a view earlier expressed in the NSW Court of Appeal that it is preferable to avoid using such a formula or similar descriptive formulae (but that more is required than mere lip service)’. 260. See Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154. 261. Approved in Minister for Planning v Walker (2008) 161 LGERA 423 at [35] (CA). 262. For example, it was said in INL Group Ltd v Director-General of the New South Wales Department of Planning [2011] NSWLEC 256 at [48], that if the relevant decision-maker’s consideration of a draft vegetation management plan was in error, at its highest this would amount to no more than an error of fact by the decision-maker, which is not amenable to judicial review in the absence of a marked departure from standards of rationality and reasonableness or unless it is unsupported by any evidence. See also Williams v Minister for Planning [2009] NSWLEC 5; Kennedy v New South Wales Minister for Planning [2010] NSWLEC 240. 263. Randwick Municipal Council v Manousaki (1988) 66 LGRA 330; Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86; Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24 at 41; Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; Sharpe v Town of Vincent [2010] WASC 391. 264. Greenpeace Australia Ltd v Redbank Power Co Ltd (1994) 86 LGERA 143. 265. Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 55 LGRA 176 at 197.

266. On unreasonableness as a ground of judicial review, see 22.71. 267. See also Rowe v Lindner [2006] SASC 176 (undue weight given to application of the precautionary principle without adequately assessing other relevant evidence). 268. Parramatta City Council v Hale (1982) 47 LGRA 319; King v Great Lakes Shire Council [1986] 58 LGRA 366. 269. See 22.71. 270. Water Management Act 2000 (NSW) s 9(1)(b). 271. See 8.80. 272. Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145 at [142] per Tobias JA. 273. Hardie Holdings Pty Ltd v Director-General Department of Natural Resources (2007) 151 LGERA 373. 274. See Re Minister for Environment; Ex parte Elwood (2007) 154 LGERA 366. 275. Love v Victoria [2009] VSC 215 at [182]. 276. Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264 at [51]. 277. Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources [2007] FCA; FCAFC 175; Hardie Holdings Pty Ltd v Director-General Department of Natural Resources (2007) 151 LGERA 373; Hunter v Minister for Planning [2012] WASC 247 at [24–27]. A political purpose will not be improper where otherwise the exercise of the power is lawful: Friends of Elliston and Environment Conservation Inc v South Australia [2007] SASC 19. 278. Anderson v Minister for Infrastructure, Planning and Natural Resources (2006) 151 LGERA 229; see also McGovern v Ku-ring-gai Council [2007] NSWLEC 22 (misrepresentation not fundamental to development consent). 279. Bromley London Borough Council v Greater London Council [1983] AC 768 at 821; Baarmutha Residents Association Inv v Indigo Shire Council (2005) 142 LGERA 204. 280. Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 410; and see Currey v Hargraves [2007] NSWLEC 471 (failure of the council to impose conditions of consent limiting height of trees and shrubs not so devoid of plausible justification that that no reasonable person or body would have done so). 281. Save Our Street Inc v Settree (2006) 149 LGERA 30. ‘Overwhelming’ in effect means the challenged decision must be irrational or lacking any possible logical basis: per Tobias JA in Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145 at [124]. See also Preston, ‘Judicial Review of Illegality and Irrationality of Administrative Decisions in Australia’ (2006) 28 Aust Bar Rev 17. 282. Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 at 45 [129]. 283. Whether unreasonableness must be determined only by reference to the material available to the decision-maker, is still unresolved; although in Moolarben Coal Mines Pty Ltd v Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division); Moolarben Coal Mines Pty Ltd v Director-General of the Department Trade and Investment, Regional Infrastructure and Services [2011] NSWLEC 191, Moore AJ at [74]–[76] preferred this approach. 284. Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88. See also Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86; MCC Energy Pty Ltd v Wyong Shire Council [2006] NSWLEC 581 at [48]; Save Our Street Inc v Settree (2006) 149 LGERA 30; NSWLEC 570 at [27]–[31]; Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229.

285. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Absence of perversity or illogicality may well indeed establish that a decision was made by a careful analysis of all relevant evidence: see, for example, Dates v Minister for Environment, Heritage and the Arts (No 2) [2010] FCA 256. 286. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ. 287. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Lyons v Sutherland Shire Council (2000) 110 LGERA 441. 288. Bailey v Forestry Commission (1989) 67 LGRA 200; Friends of Hinchinbrook Society Inc v Minister for the Environment (No 2) (1997) 93 LGERA 249; Giuffrida v Manningham City Council [2005] VCAT 571; Jacra Nominees Pty Ltd v Surf Coast Shire Council [2007] VCAT 1190; Phillips v Hepburn Shire Council [2009] VCAT 351; unChain St Kilda Inc v Port Phillip City Council [2009] VCAT 833. 289. Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources (2005) 138 LGERA 11. 290. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; City of Botany Bay Council v Minister for Transport and Regional Development (1999) 106 LGERA 287; East Melbourne Group Inc v Minister for Planning [2005] VSC 242; also note the comments of the New South Wales Court of Appeal in Ryde City Council v Echt (2000) 107 LGERA 317. 291. Clark v Cook Shire Council [2007] QCA 139 at [45]. 292. In Norbis v Norbis (1986) 161 CLR 513 at 541, Brennan J said that: ‘it is harder to be satisfied that an administrative body has acted unreasonably, particularly when the administrative discretion is wide in its scope or is affected by policies of which the Court has no experience’. 293. For example, no challenges to the New South Wales government’s water sharing plans have yet succeeded: see, for example, Nature Conservation Council of New South Wales Inc v Minister for Sustainable Natural Resources (2004) 133 LGERA 168; Murrumbidgee Horticulture Council Inc v Minister for Land and Water Conservation (2003) LGERA 127, 450; Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11; Tubbo Pty Ltd v Minister Administering the Water Management Act 2000; Harvey v Minister Administering the Water Management Act 2000 [2008] NSWCA 356. See also The Dubler Group Pty Ltd v Ku-ring-gai Municipal Council (2004) 133 LGERA 438 (minister’s opinion about matters of significance for environmental planning not unreasonable). 294. A management plan is an administrative act and therefore subject to grounds of judicial review. Contrast this with a legislative instrument such a local planning scheme where Wednesbury unreasonableness would not be the correct test for legality: see Massie v Brisbane City Council [2007] QCA 159. 295. Bailey v Forestry Commission (1989) 67 LGRA 200; Byron Shire Businesses for the Future Inc v Byron Council (1994) 84 LGERA 434; National Parks Association New South Wales v Minister for Environment (1992) 130 LGERA 443; Christian Outreach Centre v Toowoomba Regional Council and HSBG Pty Ltd [2012] QPEC 29. 296. Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 134 LGERA 272 (the Nathan Dam case). 297. See Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53. 298. Ilic v City of Adelaide [2010] SASC 139; Casa v City of Ryde Council [2009] NSWLEC 212 at [64]. And see the discussion on ‘jurisdictional fact’ at 22.46. 299. In Perder Investments v Elmer (1991) 23 ALD 545 at 552, the policy was also declared invalid because it was inconsistent with the discretion to grant a transfer. The policy was, therefore, also an irrelevant consideration in this particular decision.

300. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Norvill v Chapman (1995) 133 ALR 226; Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 114; Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 95 LGERA 229. 301. Warren v ELCOM (NSW) (1990) 130 LGERA 565; Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning [2009] SASC 303. 302. Norvill v Chapman (1995) 133 ALR 226. 303. See also Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38. 304. See, for example, Lyons v Sutherland Shire Council (2000) 110 LGERA 441; Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86; Belmorgan Property Development Pty Ltd v GPT RE Ltd [2007] NSWCA 171 (purported determination of development application by general manager of council not authorised by power of delegation). 305. Craig v South Australia (1995) 184 CLR 163; Forman v ACT Planning and Land Authority [2013] ACTSC 167. 306. Cranky Rock Road Action Group v Cowra Shire Council (2006) 150 LGERA 81 (CA); Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360 (CA); DeAngelis v Pepper [2014] NSWLEC 61 (failure to exhibit did not lead to invalidity). And on essential and non-essential preconditions, see 22.46. 307. Parramatta City Council v Hale (1982) 47 LGRA 319; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) (2007) 158 LGERA 250; Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2012] FCAFC 111. 308. F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) (2007) 158 LGERA 250. 309. See also Loader v Moreton Bay Regional Council [2013] QCA 269; Figtree Reserve Pty Ltd v Goulburn Mulwaree Shire Council [2013] NSWLEC 65. 310. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396; Minister for Planning v Walker (2008) NSWCA 224. In Country Energy v Williams (2005) 141 LGERA 426, it was said that noncompliance with a legitimate expectation would not necessarily render invalid a consent obtained after such non-compliance. In Sharples v Minister for Local Government [2010] NSWCA 36, the contravention of a provision of a ‘Guideline’ was held not have such a significant role in the statutory scheme that it should be regarded as an essential condition to validity. 311. Friends of King Edward Park Inc v Newcastle City Council (No 2) [2015] NSWLEC 76.

Index References are to paragraphs

A Abatement notices pollution control …. 15.93 local authorities …. 15.96 occupier to notify …. 15.95 Victoria …. 15.94 Western Australia …. 15.97

Aboriginal land rights see also Native title grants in fee simple …. 2.15

Aboriginal peoples see also Aboriginal land rights; Native title cultural interests to be respected in management policies …. 12.68 joint management of parks …. 12.6 native wildlife protection …. 14.64 Northern Territory …. 14.65 Queensland …. 14.66–14.67 South Australia …. 14.68 protection of relics and artefacts …. 5.28, 20.50 destruction …. 20.117–20.118 inadequate EIS …. 11.90 intergenerational equity …. 7.27, 8.28, 8.78 natural justice …. 22.35 reserves …. 12.50

special interests …. 19.15 wildlife protection Victoria traditional Aboriginal customs …. 14.70

Administrative notices or orders …. 20.1–20.3 abatement notices …. 15.93 local authorities …. 15.96 occupier to notify …. 15.95 Victoria …. 15.94 Western Australia …. 15.97 avoiding liability by compliance with …. 20.6 enabling quick response …. 20.4 enforceable undertakings …. 20.18–20.19 freeing up of regulatory resources …. 20.21 New South Wales …. 20.20 pollution control …. 15.100 Victoria …. 20.20 enforcement orders Queensland …. 20.12 South Australia …. 20.13 Victoria …. 20.12 Western Australia …. 20.12 heritage laws …. 20.8 linking remediation order with civil penalty provision …. 20.8 local authorities …. 20.7 power to issue …. 20.5 remediation order …. 20.8, 20.13

Agreement on Sanitary and Photosanitary Measures (SPS

Agreement) …. 4.38 Agreement on Technical Barriers to Trade (TBT Agreement) …. 4.37 Airports Commonwealth powers over …. 5.46, 5.51

Alternative dispute resolution …. 1.28 equal bargaining position for parties …. 22.13 mediated settlement …. 22.14 New South Wales …. 22.13 types …. 22.12 Western Australia …. 22.15

Animals see Wildlife protection Antarctica …. 12.33 Treaty …. Pt D.8

Appeals on merits contaminated land Australian Capital Territory …. 16.46 New South Wales …. 16.47 Queensland …. 16.47 South Australia …. 16.47 Tasmania …. 16.47 Western Australia …. 16.47

Assessment on proponent information (API) …. 11.75 Attorney-General public nuisance …. 3.26 standing to sue …. 19.45 Australian Capital Territory …. 19.46–19.47

Tasmania …. 19.46

Australian Capital Territory ecologically sustainable development …. 8.30 energy efficiency schemes …. 17.30 environmental harm, offences …. 15.104 environmental impact assessment drafting and review …. 11.56 impact track …. 11.55 fast-tracking …. 10.58 land use …. 9.62 local planning …. 9.62 merits appeals …. 10.69–10.70 native vegetation controls offsets …. 13.42 native wildlife protection …. 14.36 pollution control confidentiality of audit documents …. 15.86 review of decisions …. 15.88 protected areas …. 12.44 standing to sue action by Attorney-General …. 19.46 strategic environmental assessment …. 8.47 works approvals …. 15.57

Australian Centre for Climate and Environmental Law (ACCEL) …. 1.34 Australian Centre for Environmental Law (ACEL) …. 1.34 Australian Environment Council …. 1.12 Australian Fisheries Management Authority (AFMA) …. 8.74,

18.45 Australian Quarantine Inspection Service (AQIS) …. 4.39, 14.8 Australian Whale Sanctuary …. 4.27, 14.29 Australian Wool Innovation …. 2.41

B Ballast water …. 15.139 Basel Convention …. 4.30, 16.20 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal …. 16.20 Basel Convention on the Trade or Transportation of Hazardous Waste across International Borders and the Convention on International Trade in Endangered Species (CITES) …. 4.30 Best practice environmental management (BPEM) application and adoption of …. 15.33 environmental standards …. 15.56 for specific industries …. 15.34

Biodiversity conservation see also Protected areas; Threatened species; Wildlife protection overview …. Pt D.1–Pt D.2 Australia’s unenviable record …. Pt D.3 Inter-Governmental Agreement on the Environment (IGAE) …. Pt D.9 international obligations Antarctic Treaty …. Pt D.8 China–Australia Migratory Bird Agreement (CAMBA) …. 14.28, Pt D.7 Convention on Biological Diversity …. Pt D.5, Pt D.6 Convention on Conservation of Nature in the South Pacific (Apia

Convention) …. Pt D.8 Convention on Migratory Species (Bonn Convention) …. 14.28, Pt D.7 Japan–Australia Migratory Bird Agreement (JAMBA) …. 14.28, Pt D.7 Republic of Korea–Australia Migratory Birds Agreement (ROKAMBA) …. 14.28, Pt D.7 legislative approach …. Pt D.11–Pt D.12 National Reserve System of Australia …. Pt D.10 National Strategy for the Conservation of Australia’s Biological Diversity …. Pt D.4

Biological Diversity Convention …. 4.30, 12.4 Bioregional planning …. 12.9 Biosequestration …. 17.45 Biosphere reserves …. 12.25

C Carbon capture and storage (CCS) see also Carbon Farming Initiative (CFI); Greenhouse gas emissions licences …. 17.34 prospecting for sites …. 17.33 regulatory structure …. 17.32

Carbon Farming Initiative (CFI) see also Carbon capture and storage (CCS); Greenhouse gas emissions methodologies for abatement activities …. 17.23 permanency of sequestration …. 17.24 sequestration activities …. 17.22

Carbon Pollution Reduction Scheme (CPRS) …. 4.46, 17.18 Caring for Our Country …. 5.27

Centre for Climate Law and Policy (CCLP) …. 1.34 Cetaceans …. 4.27, 12.10, 14.29 Civil actions …. 21.4 advantages over criminal remedies …. 20.10 climate change litigation common law …. 17.47–17.54 ‘good faith’ excluding liability …. 17.38 hurdles to be addressed …. 17.39 merits appeals and judicial review …. 17.37 purpose of …. 17.40 Urgenda challenge …. 17.36 costs in litigation see Costs in civil litigation damages …. 21.21 declarations …. 21.16–21.17 injunctions …. 21.5–21.8 interlocutory injunctions …. 21.9–21.15 negligence see Negligence; Nuisance prerogative writs …. 21.18–21.20 restoration/remediation orders …. 21.22 standing to sue see Standing to sue supplant recourse to criminal proceedings …. 20.11 threatened species see Threatened species trespass see Trespass vicarious liability statutory imputation …. 20.54, 20.58 ‘sufficient control’ …. 20.52–20.53

Class actions …. 19.48 process …. 19.49

objective …. 19.52

Clean Energy Package …. 17.18–17.19 Climate change see also Greenhouse gas emissions carbon capture and storage (CCS) licences …. 17.34 prospecting for sites …. 17.33 regulatory structure …. 17.32 Carbon Farming Initiative (CFI) methodologies for abatement activities …. 17.23 permanency of sequestration …. 17.24 sequestration activities …. 17.22 Carbon Pollution Reduction Scheme (CPRS) …. 17.18 Clean Energy Package …. 17.18–17.19 criminal prosecutions …. 17.58 energy efficiency legislative schemes …. 17.30 energy power demand side management …. 17.31 ‘feed-in tariffs’ …. 17.28 Large-scale Renewable Energy Target (LRET) …. 17.26 Mandatory Renewable Energy Target (MRET) …. 17.25 Small-scale Renewable Energy Scheme (SRES) …. 17.26 Small-scale Technology Certificates (STCs) …. 17.27 Garnaut Review …. 17.3 GreenPower scheme …. 17.29 impacts of …. 17.2 judicial reviews …. 17.55 Kyoto Protocol see Kyoto Protocol

litigation common law …. 17.47–17.54 ‘good faith’ excluding liability …. 17.38 hurdles to be addressed …. 17.39 merits appeals and judicial review …. 17.37 purpose of …. 17.40 Urgenda challenge …. 17.36 merits appeals …. 17.56–17.57 overview …. 17.1 planning for …. 17.35 property rights, effect on …. 17.45 security conferred on carbon trading …. 17.46 reporting greenhouse emissions …. 17.21 state-based responses …. 17.16 2007 Stern Review …. 17.3

Coal seam gas mining see Mining Coastal zone definition …. 18.52 New South Wales councils and agencies, statutory exemptions from liability …. 18.56 local government management plans …. 18.54 Sea Level Rise Policy Statement …. 18.55 SEPP 71 Coastal Protection …. 18.53 pressures on …. 18.50–18.51 Queensland coastal management plans …. 18.56 South Australia coast protection districts …. 18.57

Tasmania State Coastal Policy 1996 …. 18.58 Victoria Victorian Coastal Strategy (VCS) …. 18.57 Western Australia State Coastal Planning Policy 2013 …. 18.58

Committee on Trade and Environment (CTE) …. 4.30 Common law see also Environmental litigation; Property rights abolition to serve statutory scheme …. 3.14 climate change litigation …. 17.47 councils protected from liability …. 17.51–17.53 impact of local authority works …. 17.50 planned retreats and setbacks …. 17.48–17.49 wind farm operators …. 17.54 dispute resolution, use of principles …. 2.68 environment as ‘ecosystem’ of property entitlements …. 3.2 environmental law and …. 1.8, 2.2 failings leading to environmental law …. 2.4 management of natural resources …. 18.1 modified to give effect to policies underlying schemes …. 3.13 property rights cujus est solum, ejus est usque ad coelum et ad inferos …. 3.2 recognition and protection of private property interests …. 2.3 remedies …. 3.53 added to criminal prosecution …. 3.18 alternatives to …. 3.54 as compensation for wrongs …. 3.17 limited by statutory exemptions to government …. 3.16

negligence …. 3.28–3.31 nuisance …. 3.19–3.27 trespass …. 3.19 restrictions on environmental litigation …. 19.6 riparian rights …. 3.14 standing to sue balancing property interests with freedom of trade …. 19.11 environmental interests not supporting …. 19.16 gaining commercial interest …. 19.12 protecting rights conferred by statutes …. 19.17–19.19 ‘special interest’ …. 19.10 survival until amended or repealed …. 3.12 trees and property rights …. 3.15

Commonwealth Environmental Water Holder …. 18.33 Commonwealth legislative powers Aboriginal heritage protection …. 5.28 acquisitions power ‘acquired’ …. 5.33–5.34 ‘just terms’ …. 5.32 state government …. 5.35–5.37 cannot act outside of authority vested in Constitution …. 5.3 coastal waters constitutional basis …. 5.30 no state entitlements …. 5.29 Commonwealth places …. 5.46–5.48 Constitution restrictions on states s 109 …. 5.49 cooperation with states see Cooperative federalism

corporations exempted by legislation …. 5.52 corporations power application …. 5.19 non-trading activities …. 5.17 scope …. 5.18 Tasmanian Dams case …. 5.16–5.17 tool in fostering better corporate behaviour …. 5.20 ‘trading corporations’ …. 5.16 Council of Australian Governments (COAG) agreement …. 5.54 defence power …. 5.38 environmental powers …. 5.1 exclusive jurisdiction …. 5.2 external affairs …. 5.4 bona fides of legislation …. 5.12, 5.15 conformity of legislation …. 5.13–5.14 international concern …. 5.11 ratification of treaties …. 5.11 Tasmanian Dams case …. 5.11–5.12 financial powers …. 5.21 special purpose grants …. 5.22 spending …. 5.27 taxation …. 5.23–5.26 fisheries …. 5.31 High Court challenges to s 51 …. 5.6 implied nationhood power …. 5.53 nationally agreed approaches preferred …. 5.7 non-purposive powers …. 5.4 purposive …. 5.4

reliance on heads of power …. 5.5 trade and commerce …. 5.8 export control …. 5.9 interstate trade …. 5.10

Commonwealth legislative powers ‘covers the field’ …. 5.51 Commonwealth places …. 5.46–5.48 Commonwealth protected areas biological resources …. 12.41 bioregional planning …. 12.9 biosphere reserves …. 12.25 conservation agreements …. 12.39 conservation zones …. 12.40 Convention on Wetlands of International Importance (RAMSAR Convention) …. 12.22 Great Barrier Reef …. 12.18–12.21 defence powers …. 5.38 golf course construction, penalties …. 20.17 passage of vessels …. 15.120 pollution legislation …. 15.130 inventories …. 12.10 National Heritage List …. 12.38 National Reserve System (NRS) …. 12.7 powers …. 12.6 Ramsar wetlands …. 12.22–12.24 reserves …. 12.26–12.34 World Heritage Convention …. 12.11 world heritage sites …. 12.11–12.17

Compensation

acquisitions of property …. 2.20–2.27 establishing claim …. 2.28–2.33 burden on society rather than individuals …. 2.18 environmental restrictions balancing private and public interests …. 2.23 government funding …. 2.25 incentives for landowners to manage wisely …. 2.21 justifications for …. 2.20 land clearing, Qld …. 2.27 land management unreasonably interferes with other interests …. 2.24 political necessity …. 2.26 structural adjustment schemes …. 2.22 giving security to risk-taking by private interests …. 2.19 needed for intrusion on private property rights …. 2.16

Confidentiality of documents pollution control Australian Capital Territory …. 15.86 legal professional privilege …. 15.85

Conservation agreements Commonwealth …. 12.39 New South Wales …. 12.46–12.47

Conservation Commission (WA) …. 12.55 Conservation organisations economic interests …. 19.13 Lock the Gate Alliance …. 2.38 non-government organisations (NGOs) fighting specific issues …. 2.39

role in …. 2.38 World Conservation Union (IUCN) …. 2.38

Conservation parks Queensland …. 12.49 South Australia …. 12.51

Conservation zones Commonwealth …. 12.40

Constitution see Commonwealth legislative powers Contaminated land appeals on merits Australian Capital Territory …. 16.46 New South Wales …. 16.47 Queensland …. 16.47 South Australia …. 16.47 Tasmania …. 16.47 Western Australia …. 16.47 declaration of …. 16.35 definition …. 16.25 issue in development and conveyancing …. 16.26 liability for …. 16.26 New South Wales contaminator and landowner to notify regulator …. 16.34 mandatory management order …. 16.36 planning functions …. 16.30 SEPP 55 — Remediation of Land …. 16.28–16.29 planning controls costs of clean-up …. 16.27 preliminary investigations …. 16.34

Queensland obligation to notify …. 16.37 remediation notice …. 16.32 site audits …. 16.44–16.45 South Australia clean-up orders …. 16.43 duty to report site …. 16.41 hazard abatement notices …. 16.42 investigation notices …. 16.42 mandatory reporting …. 16.39 notification of site …. 16.38 trigger for mandatory notification …. 16.40 Victoria state environment protection policy (SEPP) …. 16.31 Western Australia approval for subdivisions stopped if on register …. 16.33

Contractors vicarious liability …. 20.52–20.53

Convention for the Prevention of Pollution from Ships (MARPOL Convention) see Marine pollution control Convention of the Parties (COP) Cancun (COP 16) …. 17.7 Copenhagen (COP 15) …. 17.5–17.6 Durban (COP 17) …. 17.8 Paris (COP 21) …. 17.8 Qatar (COP 18) …. 17.8

Convention on Biological Diversity …. 4.30, 12.4 Convention on Civil Liability for Oil Pollution Damage ….

15.121 Convention on International Trade in Endangered Species (CITES) …. 4.11, 4.30 Convention on Liability and Compensation for the Carriage of Hazardous and Noxious Substances by Sea …. 15.125 Convention on the Prevention of Marine Pollution by the Dumping of Wastes and Other Matter …. 15.114, 15.136 Convention on Wetlands of International Importance (RAMSAR Convention) …. 12.22 Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region …. 16.22 Conventions see Treaties and conventions Cooperative federalism historical background …. 5.55–5.56 Inter-Governmental Agreement on the Environment (IGAE) …. 5.64 ministerial councils Council of Australian Governments (COAG) …. 5.61 membership …. 5.62 relevant to environmental management …. 5.63 role …. 5.60 national policies and strategies …. 5.57 advantages and disadvantages …. 5.58 attracting Commonwealth funding …. 5.59 non-ministerial authorities …. 5.63

Corporations accessory liability …. 20.63–20.64 defences

‘all reasonable steps’ …. 20.88 directors and managers minimising exposure …. 20.90 having and complying with management system …. 20.91 honest and reasonable mistake …. 20.85 ‘no influence’ …. 20.89 personal liability …. 20.86–20.87 double jeopardy …. 20.65 legal obligations, meeting …. 1.33 legal professional privilege …. 20.68 self-incrimination …. 20.66–20.67 vicarious liability …. 20.55 attributing …. 20.56 conduct and state of mind …. 20.57 directors and managers …. 20.59–20.62 statutory imputations …. 20.58 voluntary audits unable to support prosecutions …. 20.69

Costs in civil litigation conferring standing on members …. 21.25 ‘costs follow the event’ …. 21.23 disincentive to members of the public …. 21.24 indemnity costs …. 21.34 legal aid …. 21.43 pro bono assistance …. 21.44 protective costs orders capping …. 21.37 public nature of proceedings …. 21.38 straw plaintiffs …. 21.35 waiving or limiting of costs …. 21.36

public interest …. 21.26–21.33 security for costs …. 21.39–21.42

Council of Australian Governments (COAG) agreement …. 5.54 Courts and tribunals alternative dispute resolution …. 1.28 evaluating arguments and balancing interests …. 1.27 expanding boundaries of law …. 1.20 interpretation of domestic legislation …. 4.44 legitimate role in reviewing decision-making …. 1.28 merits appeals, final arbiter …. 10.71 merits appeals, principles guiding …. 22.5 public interest litigation …. 1.30 remediation orders …. 21.22 restoration orders …. 21.22 sentencing, wide range of factors considered …. 20.93 specialists …. 1.20, 1.29, 2.72 standing to sue …. 19.30–19.37 supervisory role …. 7.1

Covenants see Property agreements and covenants Criminal offences Australian Capital Territory environmental harm …. 15.104 classification …. 20.36–20.37 common law displaces by Criminal Codes …. 20.38 knowledge …. 20.49–20.50 mens rea …. 20.44 mental element required for offence …. 20.39 negligence …. 20.47–20.48

recklessness …. 20.46 wilful intent …. 20.45 conservation orders …. 14.27 corporations accessory liability …. 20.63–20.64 defences …. 20.70 due diligence …. 20.71–20.75 mistake of law …. 20.81 ‘reasonable excuse’ …. 20.82 ‘unintended consequences’ …. 20.83–20.84 environmental harm New South Wales …. 15.109 Northern Territory …. 15.105 Queensland …. 15.106 South Australia …. 15.107 Tasmania …. 15.107 Victoria …. 15.110 Western Australia …. 15.108 indictable …. 20.26 Queensland …. 20.26 native vegetation controls New South Wales …. 13.22 Queensland …. 13.26 pollution control …. 15.111 remedies honest and reasonable mistake of fact …. 20.76–20.80 reserves …. 12.76 sentencing

conferences …. 20.119 deterrence …. 20.95–20.102 further penalties for breaches …. 20.121–20.123 instinctive synthesis approach …. 20.103–20.112 penalties equal to benefits …. 20.120 purposes of …. 20.92 restorative justice …. 20.117–20.118 totality and evenhandedness …. 20.113–20.115 wide range of factors considered by courts …. 20.93 summary New South Wales …. 20.26 Victoria …. 20.26 threatened species …. 14.18 water pollution New South Wales …. 13.22 world heritage areas …. 12.14

Criminal prosecutions climate change …. 17.58

Crown concept explained …. 2.7 development control …. 10.7 environmental impact assessment …. 11.20 natural resources vesting control …. 3.8 source of title for land …. 2.2

Crown land allocating …. 9.6 determining most suitable use …. 9.12

disputes …. 9.10 economic exploitation no longer automatic …. 9.9 leasing/licensing instead of alienation …. 9.14 management plans created …. 9.13 no direct Commonwealth control over states …. 9.7 rationalisation of resource allocation …. 9.11 use dictated by government policy …. 9.8 management plans …. 9.13 native vegetation controls …. 13.63–13.64 Northern Territory …. 13.65 Queensland …. 13.66 South Australia …. 13.67–13.68 reserves …. 12.2

Cujus est solum, ejus est usque ad coelum et ad inferos …. 3.2

D Damages exemplary …. 21.21 undertakings for …. 21.11–21.16

Danube Dam case …. 4.16, 4.21 Decision-making environmental impact assessment …. 11.14

Declarations rules for hearing …. 19.9 standing …. 19.3 statement of rights and duties …. 21.16–21.17

Defences …. 20.70 corporations

all reasonable steps …. 20.88 directors and managers minimising exposure …. 20.90 having and complying with management system …. 20.91 honest and reasonable mistake …. 20.85 no influence …. 20.89 personal liability …. 20.86–20.87 double jeopardy …. 20.65 due diligence …. 20.71–20.75 honest and reasonable mistake of fact …. 20.76–20.80 legal professional privilege …. 20.68 mistake of law …. 20.81 reasonable excuse …. 20.82 self-incrimination …. 20.66–20.67 statutory authority conferred by implication …. 3.44 exemption clauses …. 3.40–3.43 implied immunity …. 3.45 public authorities …. 3.39 unintended consequences …. 20.83–20.84

Development control …. 10.1 assessment of impacts …. 10.10–10.11 assessment of impacts, Australian Capital Territory assessment tracks …. 10.40–10.41 sustainability principles …. 10.39 assessment of impacts, New South Wales …. 10.12 conditions imposed on consent …. 10.16 conditions of consent …. 10.23 consent authority considering effect on resources …. 10.15

consent authority understanding proposal …. 10.13 consent to clear native vegetation …. 10.21 deferred commencement consent …. 10.24 determining authority compliance with s 111 …. 10.18 developer contributions …. 10.25–10.26 failure to include statement of environmental effects (SEE) …. 10.14 integrated development …. 10.22 modification of consent …. 10.27 regard to register of critical habitat …. 10.17 species impact statement …. 10.19–10.20 assessment of impacts, Northern Territory …. 10.46 assessment of impacts, Queensland …. 10.32 assessable development …. 10.34 assessment of application …. 10.36 Integrated Development Assessment System (IDAS) …. 10.33 notification stage …. 10.35 assessment of impacts, South Australia categorisation of development …. 10.37 prescribed activities …. 10.38 assessment of impacts, Tasmania …. 10.45 assessment of impacts, Victoria …. 10.28 Minister’s call-in power …. 10.31 notification of permit applications …. 10.29–10.30 assessment of impacts, Western Australia compliance with heritage legislation …. 10.43 consent to clear native vegetation …. 10.44 referral to Authority …. 10.42 constrained by zoning provisions …. 10.4

development, definition …. 10.2 fast-tracking …. 10.52 Australian Capital Territory …. 10.58 Major Project Facilitation Program …. 10.55 need for …. 10.63 New South Wales …. 10.61–10.62 Queensland …. 10.53–10.54, 10.60 South Australia …. 10.57 Tasmania …. 10.59 Victoria …. 10.56 general scheme …. 10.5 applications to relevant planning authority …. 10.6 consideration by permitting authority …. 10.9 Crown development …. 10.7 environmental assessments …. 10.8 indenture or franchise agreements …. 10.65–10.66 merits appeals …. 10.69 court or tribunal as final arbiter …. 10.71 objectors …. 10.70 planning agreements …. 10.47 New South Wales …. 10.48 offsets …. 10.50–10.51 Victoria …. 10.49 within planning instrument frameworks …. 10.3 project-oriented special development legislation …. 10.67–10.68

Development report (DR) …. 11.64 Double jeopardy …. 20.65 Dumping at sea …. 15.136

E Ecologically sustainable development see also Sustainable development conservation of biological diversity …. 8.80 fundamental consideration in decision-making …. 8.81 not only consideration …. 8.82 decision-making …. 8.24 ‘applying’ …. 8.28–8.29 ‘balancing’ …. 8.39–8.40 conservation of biological diversity …. 8.81 ‘consideration’ …. 8.35–8.38 important role in all decisions …. 8.25 ‘in accordance with’ …. 8.26–8.27 ‘public interest’ …. 8.31–8.34 ‘sustainable’ …. 8.30 ‘triple bottom line’ …. 8.30 ‘whole-of-government’ approach …. 8.44 definition …. 8.18 New South Wales …. 8.19 Problems in legal definition …. 8.21 Queensland …. 8.19 Victoria …. 8.20 duty of care …. 3.49 economic development and growth more important …. 8.23 embracing of concept …. 8.14 Federal coordination of national strategies …. 8.17 four stipulated means of achieving …. 8.18 improved valuation, pricing and incentive mechanisms …. 8.83–8.84

intergenerational equity principle …. 8.75–8.76 projects exacerbating climate change …. 8.77 projects impacting on heritage …. 8.78 references in legislation …. 8.79 local government, role in …. 2.44 National Conservation Strategy …. 8.3 National Strategy for Ecologically Sustainable Development (NSESD) …. 8.15 outcome over process …. 8.22 precautionary principle …. 8.56 burden of proof …. 8.69–8.73 caution and prevention …. 8.74 conservation of biological diversity …. 8.82 in practice …. 8.66–8.68 triggering, lack of full scientific certainty …. 8.59–8.65 triggering, serious or irreversible environmental damage …. 8.57–8.58 Resource Assessment Commission (RAC) …. 8.16 sustainability …. 8.41 adaptive management …. 8.53 codes, guidelines and standards …. 8.49 conditions of consent …. 8.52 costs of …. 8.42 decision-making …. 8.43 environmental assessment …. 8.54 government procurement …. 8.55 green certification schemes …. 8.51 project design …. 8.48, 8.50 strategic environmental assessment …. 8.47

strategic planning …. 8.45–8.46 ‘whole-of-government’ approach, decision-making …. 8.44 World Conservation Strategy …. 8.2

Economic incentives ‘carrots’ and ‘sticks’ approach …. 7.41 conservation covenant …. 7.42 environmental services …. 7.44 green offsets …. 15.74 polluter pays principle …. 8.83–8.84, 15.72 tradeable emissions scheme …. 15.73

Emergency powers pollution control …. 15.101

Endangered species see Threatened species Enforceable undertakings …. 20.18–20.19 freeing up of regulatory resources …. 20.21 New South Wales …. 20.20 pollution control …. 15.100 Victoria …. 20.20

Enforcement see Civil actions; Criminal offences Environment effects statement (EES) …. 11.58–11.59 Environment Protection and Biodiversity Conservation Act 1999 (Cth) …. 6.1 accreditation of management plan …. 6.29 approval bilaterals …. 6.28, 6.34 bilateral arrangements …. 6.26 cancellation due to contraventions …. 6.31 Commonwealth’s legitimate legal role …. 6.2 concurrent operation with state and territory legislation …. 6.4

controlled action conditions of approval …. 6.67–6.74 criteria for decision-making …. 6.61–6.66 monitoring and enforcement …. 6.75 timeframe for approval …. 6.60 controlled actions …. 6.45 approval …. 6.8 assessment by accredited assessment process …. 6.52 assessment on preliminary documentation …. 6.54 assessment on referral information …. 6.53 coal activities …. 6.18 environmental assessment …. 6.47 environmental assessment, deciding on appropriate method …. 6.50–6.51 environmental assessment, exceptions …. 6.48 environmental impact statements …. 6.56 exemptions …. 6.46 public environment reports …. 6.55 public inquiries …. 6.57 reconsideration …. 6.11 specified classes, exceptions …. 6.49 draft agreements published for public consultation …. 6.30 exemptions …. 6.32 Federal–state cooperative arrangements …. 6.24–6.25 matters of national environmental significance …. 6.5–6.6 Ministerial declarations exemptions …. 6.37 meets requirements …. 6.36 non-controlled actions

assessment …. 6.58 assessment by state or territory agreement …. 6.59 processes triggered by certain actions …. 6.7 purpose of arrangements …. 6.27 referrals process …. 6.9 details required …. 6.10 input from other ministers …. 6.12 ministerial decision …. 6.19–6.20 notice given to person proposing action …. 6.22 relevant impacts …. 6.21 ‘significant impact’ …. 6.13–6.17 Regional Forest Agreements …. 6.38 significant environmental impact …. 6.3 strategic assessments …. 6.39–6.40 Commonwealth fisheries …. 6.44 factors to be included …. 6.41 Ministerial approval for actions …. 6.43 outcomes used to determine assessment approach …. 6.42 streamlined environmental assessments and approvals …. 6.33

Environment protection orders pollution control principles taken into account …. 15.92 uses of …. 15.91

Environment protection policies …. 15.38 drafts …. 15.40 enforcement …. 15.39

Environmental audits accreditation of authors …. 15.87

confidentiality …. 15.86 environmental impact assessment …. 11.66 legal professional privilege …. 15.85 mandatory …. 15.81 voluntary …. 20.69

Environmental Defender’s Office (EDO) …. 1.30 Environmental degradation public awareness conflicts and tensions between values and expectations …. 1.13 mainstream acceptance of environmental values …. 1.16 1970s responses by Western countries …. 1.12 protection as emotive subject …. 1.14 responsibility for degradation laid at feet of industry …. 1.15 Silent Spring (Rachel Carson) …. 1.11 public interest recent interest …. 1.10

Environmental development see Environmental planning Environmental dispute resolution common law, use of principles …. 2.68 merits review …. 2.69

Environmental harm …. 15.26 environmental nuisance …. 15.29 material …. 15.28 offences …. 15.103 Australian Capital Territory …. 15.104 New South Wales …. 15.109 Northern Territory …. 15.105 Queensland …. 15.106

South Australia …. 15.107 Tasmania …. 15.107 Victoria …. 15.110 Western Australia …. 15.108 serious …. 15.27

Environmental impact assessment …. 10.11, 11.1 adequacy factors influencing …. 11.86 judicial standard for EIS …. 11.87 site-specific impacts or broader approach …. 11.88 testing legality of EIS …. 11.89 wrongful omission of material …. 11.90 Australian Capital Territory assessment tracks …. 10.40–10.41 drafting and review …. 11.56 impact track …. 11.55 sustainability principles …. 10.39 common criticisms …. 11.96 coming too late in decision-making process …. 11.100–11.102 post-decision monitoring and management …. 11.108 preparation by proponent …. 11.97–11.99 public participation …. 11.103–11.106 time and cost factors …. 11.107 content determined by directions …. 11.13 determination of need industries targeted …. 11.8 monitoring and evaluation …. 11.10 prior referral of activity to authority …. 11.6

procedure …. 11.7 range of matters addressed …. 11.9 inquiries …. 11.12 interim protection pending …. 11.11 New South Wales …. 10.12, 11.16 activity …. 11.21–11.23 conditions imposed on consent …. 10.16 conditions of consent …. 10.23 consent authority considering effect on resources …. 10.15 consent authority understanding proposal …. 10.13 consent to clear native vegetation …. 10.21 critical habitat and threatened species, content …. 11.38 critical habitat and threatened species …. 11.35–11.37 Crown development …. 11.20 decision not to require EIS …. 11.30 deferred commencement consent …. 10.24 designated development …. 11.17–11.19 determining authority …. 11.31–11.32 determining authority compliance with s 111 …. 10.18 developer contributions …. 10.25–10.26 failure to include statement of environmental effects (SEE) …. 10.14 integrated development …. 10.22 likelihood of significant effects on environment …. 11.24–11.29 modification of consent …. 10.27 public review of EIS …. 11.39–11.40 regard to register of critical habitat …. 10.17 species impact statement …. 10.19–10.20 state significant development (SSD) …. 11.33–11.34

state significant infrastructure (SSI) …. 11.33–11.34 no general right to appeal …. 11.95 Northern Territory …. 10.46, 11.57 not formally designated as …. 11.2 procedural steps …. 11.5 purpose of …. 11.3 Queensland …. 10.32, 11.41 assessable development …. 10.34 assessment of application …. 10.36 under Environmental Protection Act 1994 …. 11.54 Integrated Development Assessment System (IDAS) …. 10.33 notification stage …. 10.35 under planning system …. 11.42–11.44 under State Development and Public Works Organisation Act 1971 (SDPWOA) …. 11.45–11.53 review of environmental aspects of proposals …. 11.91 Northern Territory …. 11.92 South Australia …. 11.93 Western Australia …. 11.94 role in decision-making …. 11.14 South Australia categorisation of development …. 10.37 content and public review …. 11.66 development report (DR) …. 11.64 development, definition …. 11.61 lodgment of application or project proposal …. 11.63 major environmental, social or economic importance …. 11.62 mining operations …. 11.67 prescribed activities …. 10.38

process carried out by Development Assessment Commission …. 11.65 public environmental report (PER) …. 11.64 rejection by Minister …. 11.60 statutory recognition of process …. 11.4 Tasmania …. 10.45 determining terms of reference …. 11.79 Level 1 activities …. 11.77 Level 2 activities …. 11.78 Level 3 activities …. 11.78 no revision of EIS possible …. 11.81 projects of regional significance …. 11.82–11.85 public consultation before assessment complete …. 11.80 Victoria …. 10.28 environment effects statement (EES), public advertisement …. 11.59 environment effects statement (EES), submission …. 11.58 Minister’s call-in power …. 10.31 notification of permit applications …. 10.29–10.30 Western Australia assessment on proponent information (API) …. 11.75 changes after ministerial statement …. 11.76 compliance with heritage legislation …. 10.43 consent to clear native vegetation …. 10.44 derived proposals …. 11.72 how proposal meets EPA objectives …. 11.74 proponent informed of assessment of proposal …. 11.73 public environmental report (PER) …. 11.75 referral to Authority …. 10.42 significant and strategic proposals …. 11.68–11.71

Environmental improvement programs (EIPs) …. 15.44–15.45 Environmental law see also Environmental legislation overview …. 1.2 common law and …. 1.8, 2.2 conflicts and tensions between values and expectations …. 1.13 courts, role of alternative dispute resolution …. 1.28 evaluating arguments and balancing interests …. 1.27 expanding boundaries …. 1.20 legitimate role in reviewing decision-making …. 1.28 public interest litigation …. 1.30 specialists …. 1.29 creeping awareness of issues and problems …. 1.11 definitions ‘land’ …. 7.10 context of Act …. 7.13 everyday meaning used …. 7.11 grammatical meaning …. 7.12 purpose or object of Act …. 7.14 reference to extrinsic material …. 7.15 differing regimes applying to same activity …. 7.16 contradictory powers …. 7.17 cooperation of statutory authorities …. 7.20 laying down layer of control …. 7.18 potential divisions of responsibility …. 7.19 early Australian legislation …. 1.9 ecocentric approach …. 2.49 educational courses …. 1.34

effect of National Competition Policy interference with ‘market’ issues …. 7.5 restricting competition …. 7.4 elements of …. 7.8 environmental planning see Environmental planning ethics, and …. 2.47 historical precedents and examples …. 1.8 identification of impacts and role in decision-making …. 1.6 impact of …. 1.7 instruments for management …. 7.34 creating protected areas …. 7.52 licences, property rights and market-based approaches …. 7.38–7.39 market-based …. 7.40–7.45 project evaluation and licensing …. 7.36–7.37 property agreements and covenants …. 7.46–7.51 public participation …. 7.53–7.54 strategic or forward planning …. 7.35 ‘whole-of-government approaches’ …. 7.55–7.57 intrinsic environmental values …. 2.49 judges expanding boundaries of …. 1.20 opposition to large involvement in decision-making …. 1.21 strengthening quality of decision-making …. 1.22 lawyers active role …. 1.17 assisting corporations …. 1.33 confirmation of role for …. 1.19 expanding concern …. 1.18

internationally …. 1.32 knowledge of science …. 1.24, 1.26 restrictions imposed by Code of Legal Ethics …. 1.31 understanding different standards of probability …. 1.25 mainstream acceptance of environmental values …. 1.16 measuring success …. 1.35 mutual recognition …. 7.6 natural world, right to exist …. 2.47 need for consultation before decisions made …. 1.23 1970s responses by Western countries …. 1.12 objects of …. 7.21 acting consistently with …. 7.25 common law giving way to purposive intent …. 7.23 court evaluation of pursuit/achievement …. 7.27 decision-making criteria …. 7.28, 7.30 fisheries management …. 7.26 individual duties …. 7.29 specific clause …. 7.22 suggesting responsibility …. 7.24 ozone-depleting substances legislation and conventions …. 15.133 standards and monitoring …. 15.134 priorities …. 7.3 promotion of economic and social goals …. 1.5 protection as emotive subject …. 1.14 protection of multiple ‘environments’ …. 1.4 public values …. 2.48 purpose …. 7.2

recent interest in environmental issues …. 1.10 responsibility for degradation laid at feet of industry …. 1.15 shaping and moulding of …. 1.1, 1.3 specialist courts and tribunals …. 1.28, 2.72 statutory functions …. 7.31 criteria for exercise …. 7.33 mandatory or directory …. 7.32 structure …. 7.7 supervisory role of courts …. 7.1 remedies see Remedies

Environmental legislation see also Environment Protection and Biodiversity Conservation Act 1999 (Cth); Environmental law introduced due to common law failings …. 2.4

Environmental litigation see also Common law actions against activists/protestors …. 2.42 common law restrictions …. 19.6 public interest litigation …. 1.30 standing to sue …. 19.1 action by or with consent of Attorney-General …. 19.45–19.47 class and representative actions …. 19.48–19.52 conferred by legislation …. 19.4–19.5 dependent on remedy sought …. 19.3 economic interest …. 19.13–19.14 ‘friend of a parry’ …. 19.53 intervenors …. 19.54–19.55 joining parties to proceedings …. 19.56–19.58 objectors, rights of appeal …. 19.20–19.21 public interest litigants …. 19.7

reappraisal by courts …. 19.30–19.37 rules …. 19.2 seeking injunction or declaration …. 19.9 social and cultural interests …. 19.15 ‘special interest’ …. 19.8 statutory relaxation …. 19.38–19.44 Victoria …. 19.22–19.27 Western Australia …. 19.28

Environmental management program (EMP) …. 15.45 Environmental management systems (EMSs) …. 15.51–15.52 Environmental planning allocating Crown land …. 9.6 determining most suitable use …. 9.12 disputes …. 9.10 economic exploitation no longer automatic …. 9.9 leasing/licensing instead of alienation …. 9.14 management plans created …. 9.13 no direct Commonwealth control over states …. 9.7 rationalisation of resource allocation …. 9.11 use dictated by government policy …. 9.8 allocating Crown resources …. 9.15 binding on Crown Australian Capital Territory …. 9.33 New South Wales …. 9.33 Northern Territory …. 9.33 Queensland …. 9.35 South Australia …. 9.34 Tasmania …. 9.33

Victoria …. 9.33 Western Australia …. 9.35 codes of practice Queensland …. 9.25 Victoria …. 9.26 cutting across all aspects of management …. 9.31 for the future …. 9.2 giving order …. 9.1 instruments determining exact nature …. 9.40 how objectives are achieved …. 9.43 interrelationship with natural resource management plans …. 9.42 New South Wales …. 9.38 Queensland …. 9.36, 9.41 South Australia …. 9.37, 9.41 Tasmania …. 9.37, 9.40 three different levels …. 9.39 integrated strategic planning …. 9.63 Catchment Management Council, Victoria …. 9.69 cumulative impact of decision-making overlooked …. 9.71–9.74 national strategies and policies …. 9.70 State Natural Resource Management Plan, SA …. 9.66 Strategic Regional Land Use Policy, NSW …. 9.65 Tasmania …. 9.67 water resources …. 9.64 Western Australia …. 9.68 land use Australian Capital Territory …. 9.62

New South Wales …. 9.55 Northern Territory …. 9.61 Queensland …. 9.57 South Australia …. 9.58 Tasmania …. 9.60 Victoria …. 9.56 Western Australia …. 9.59 local …. 9.49 existing uses …. 9.53–9.54 setting ground rules for development …. 9.52 showing activities permitted or restricted in certain areas …. 9.50 zoning …. 9.51 minimising evaluation of future projects …. 9.5 project control …. 9.75 property agreements …. 9.30 public participation …. 9.32 resource agreements …. 9.27 New South Wales …. 9.29 Regional Forest Agreements (RFAs) …. 9.28 resource management plans acting in accordance with …. 9.21 biodiversity certification …. 9.24 compliance with standards …. 9.16 non-compliance …. 9.22 objectives set out …. 9.19 reflecting objects of legislation …. 9.17–9.18 strategic assessment …. 9.23 wildlife conservation …. 9.20

role of land use regime …. 9.4 state and regional …. 9.44 advantages of …. 9.45 New South Wales …. 9.47 public participation …. 9.48 role in integrating land use …. 9.46

Environmental policy …. 2.1 civil claims for damages against protestors …. 2.41 expectation that landowner can do anything with land …. 2.4 framing of …. 2.34 influence of science …. 2.35 international policy and legal development …. 2.37 research classes …. 2.36 judiciary …. 2.60–2.62 legislation interpreting …. 2.63–2.64 and legal instruments …. 2.55–2.59 statutory aids to construction …. 2.65–2.67 local government, influence …. 2.44 made under guise of interpretation or merits review …. 2.70 media, impact of …. 2.43 non-government organisations (NGOs) fighting specific issues …. 2.39 role in …. 2.38 public trust doctrine …. 2.50 government stewardship of resources …. 2.53 submerged or sleeping …. 2.52 three related principles …. 2.51

tortious actions against environmentalists and protestors …. 2.40 translating into law …. 2.54

Environmental Protection and Heritage Council (EPHC) …. 5.63 Environmental rights delivered through human rights provisions …. 2.45 expressed in Australian system …. 2.46

Environmental Scoping Document (ESD) …. 11.75 Environmental standards ambient emissions …. 15.54 national approach …. 15.53 prescribed maximum concentrations …. 15.55 reflecting best practice environmental management …. 15.56

Exclusive economic zone (EEZ) Australian territorial rights …. 4.26 resources covered by …. 4.25

Executive orders legislative character …. 2.58

Extended producer responsibility (EPR) schemes …. 16.5 beverage containers …. 16.8–16.9 plastic bags …. 16.12 policy behind …. 16.6 used packaging materials …. 16.10–16.11 voluntary …. 16.7

F Farmer Exit Assistance Program …. 13.4 Fast-tracked approval processes …. 10.52 Australian Capital Territory …. 10.58

Major Project Facilitation Program …. 10.55 need for …. 10.63 New South Wales …. 10.61–10.62 Queensland …. 10.53–10.54, 10.60 South Australia …. 10.57 Tasmania …. 10.59 Victoria …. 10.56

Fauna protection see Wildlife protection Fisheries see also Marine and aquatic reserves Commonwealth ‘detrimental’, meaning …. 18.42 entitlements invested with property attributes …. 18.48 entitlements, allocation or revocation …. 18.49 management adhering to plan …. 18.47 objectives pursued by Australian Fisheries Management Authority (AFMA) …. 18.45 plan consistent with objects of legislation …. 18.44 strategic management …. 18.41 total allowable catches …. 18.43 weightings determined by decision-maker …. 18.46 Environment Protection and Biodiversity Conservation Act 1999 (Cth) …. 6.44 environmental law …. 7.26 placement of responsibilities …. 18.9

Flora protection see Wildlife protection Forest management see also Regional forest agreements conservation value forests …. 18.76 illegally logged timber …. 18.76

Regional Forest Agreements (RFAs) …. 18.69 based on degraded stock …. 18.70 limitations …. 18.74–18.75 nationally agreed criteria …. 18.71 reduced Commonwealth interference …. 18.72–18.73

Framework Convention on Climate Change …. 4.30 Franklin Blockade …. 2.40 Freedom of information judicial review …. 22.25

G GATT see General Agreement in Tariffs and Trade General Agreement in Tariffs and Trade (GATT) …. 4.30 Global trade …. 4.30 Government stewardship …. 2.50 government stewardship of resources …. 2.53 submerged or sleeping …. 2.52 three related principles …. 2.51

Grants in fee simple Aboriginal land rights …. 2.15

Great Barrier Reef …. 12.18–12.21 defence powers …. 5.38 golf course construction, penalties …. 20.17 passage of vessels …. 15.120 pollution legislation …. 15.130

Green offsets …. 15.74 Greenhouse gas emissions see also Carbon capture and storage (CCS); Carbon Farming Initiative (CFI); Climate change

ambient air quality measure …. 15.54 assigned amounts …. 17.6 Australian targets …. 17.20 management …. 4.36, 5.5, 5.20, 5.35 pollution …. 17.41–17.44 reduction targets …. 17.9 trading …. 17.12–17.14 United Kingdom targets …. 17.5

H Habitat protection see Commonwealth protected areas; Marine and aquatic reserves; Native vegetation controls Hazardous waste see also Waste management imported waste …. 16.23 international movement Australian legislation …. 16.21 bans on European Union …. 16.19 Basel Convention …. 16.20 Waigani Convention …. 16.22 remediation or mitigation of damage …. 16.24

House of Representatives Standing Committee on Environment and Conservation (HRSC) …. 14.3 Human rights delivered through human rights provisions …. 2.45 expressed in Australian system …. 2.46

I Illegally logged timber …. 18.76 Indigenous land use agreements (ILUAs) …. 2.14

Injunctions interlocutory balance of convenience …. 21.10 establishing prima facie case …. 21.9 undertaking for damages …. 21.11–21.15

Integrated Development Assessment System (IDAS) …. 10.33 Inter-Governmental Agreement on the Environment (IGAE) …. 5.64, 5.65 cumulative impacts …. 9.72 environmental impact assessment …. 6.25 National Environment Protection Council …. 15.3 natural habitats …. Pt D.9

Intergenerational equity principle …. 8.75–8.76 projects exacerbating climate change …. 8.77 projects impacting on heritage …. 8.78 references in legislation …. 8.79

Intergovernmental Oceanographic Commission (IOC) …. 2.37 Intergovernmental Panel on Climate Change (IPCC) …. 2.37 Internal reviews …. 22.2 International Convention on the Protection of the World’s Natural and Cultural Heritage 1972 see World Heritage Convention International environmental law agreements, making of …. 4.6 Australia, status in court interpretation of domestic legislation …. 4.44 influenced by other nations …. 4.46

not all obligations translated into domestic law …. 4.43 principles influencing tribunals and courts …. 4.45 state governments …. 4.42 translated into domestic legislation …. 4.41 translated into legislation …. 4.41 compliance and enforcement of obligations action on behalf of international community …. 4.24 binding arbitration …. 4.23 conciliation …. 4.22 Danube Dam case …. 4.16, 4.21 mediation …. 4.22 monitoring …. 4.21 negotiation …. 4.22 standard setting …. 4.21 Convention on International Trade in Endangered Species (CITES) …. 4.11, 4.30 conventions/treaties …. 4.10 ‘framework’ treaties …. 4.12 coming into force …. 4.11 reservation exemptions …. 4.13 custom …. 4.14 opinio juris …. 4.16 state practice …. 4.15 distinguished from domestic law …. 4.2 eminent jurists, writings …. 4.19 enforcement …. 4.3 engagement of countries …. 4.3 general principles discerned by reference and support in practice …. 4.18

not confused with general policy or strategy principles …. 4.17 global issues …. 4.1 ‘hard’ law …. 4.7, 4.9 International Union for the Conservation of Nature (IUCN) …. 4.5 judicial decisions …. 4.19 Organisation for Economic Co-operation and Development (OECD) …. 4.4 private …. 4.2 public …. 4.2 ‘soft’ law …. 4.8 sovereignty of nations Australian EEZ and territorial rights …. 4.26 Australian Whale Sanctuary …. 4.27 exclusive economic zone …. 4.25 no impact on delegation of authority among government …. 4.29 powers not to impact on other nations …. 4.28 territorial sea …. 4.25 United Nations Convention on the Law of the Sea (UNCLOS) …. 4.11 United Nations Development Program …. 4.4 United Nations Economic, Scientific and Cultural Organisation (UNESCO) …. 4.4 United Nations Environment Program (UNEP) …. 4.4

International trade and environment Agreement on Sanitary and Photosanitary Measures (SPS Agreement) …. 4.38 Agreement on Technical Barriers to Trade (TBT Agreement) …. 4.37 embargos …. 4.32 ‘free trade’ principles …. 4.40 General Agreement in Tariffs and Trade (GATT) lex specialis doctrine ….

4.30–4.31 Article 20, exemptions …. 4.32, 4.35–4.36 US/Mexico tuna find dispute …. 4.32 reaching arrangements before unilateral measures …. 4.33–4.35 health and safety measures …. 4.38 import restrictions …. 4.11 quarantine measures, Australia …. 4.39 unilateral trade-related measures …. 4.32 US Gasoline Rule …. 4.33 World Trade Organization (WTO) Agreement on Sanitary and Photosanitary Measures (SPS) Agreement …. 4.38 Appellate Body …. 4.32–4.37 Committee on Trade and Environment (CTE) …. 4.30 Disputes Resolution Panels …. 4.31 General Agreement on Tariffs and Trade (GATT) …. 4.30

International Union for the Conservation of Nature (IUCN) …. 4.5 Red List …. 14.12 World Conservation Strategy …. 8.2

Interpretation of legislation external aids …. 2.66 judges, influence on …. 2.64 literal approach …. 7.12 persons aggrieved …. 2.63 precedent system …. 2.61–2.62 words and phrases …. 2.63

Intervenors …. 19.54–19.55

J Judicial review see also Merits appeals accountability and transparency …. 22.16–22.17 administrative decisions …. 22.18 decision-making delegation …. 22.78 decision-making process …. 22.21 certainty …. 22.56–22.57 due weight …. 22.68–22.70 excess of power …. 22.52–22.54 ‘having regard to’ …. 22.64–22.67 improper exercise of power …. 22.55 improper purposes …. 22.71 manifest unreasonableness …. 22.72–22.76 relevant considerations …. 22.58–22.63 ulterior motives …. 22.71 want of power …. 22.46–22.51 directed at administrative decision-making …. 22.17 finding of invalidity …. 22.79–22.80 grounds for …. 22.20 merits review, distinguished from …. 2.69 principles underlying …. 22.19 privative clauses …. 22.26–22.27 Hickman case …. 22.28 Kirk case …. 22.28, 22.31 time limits used to block …. 22.29–22.30 procedural fairness circumstances …. 22.33–22.34

consultation …. 22.36–22.37 fair hearing …. 22.40 fair hearing for affected persons …. 22.32 legitimate expectations …. 22.35 natural justice …. 22.38, 22.41 proper consideration by officers …. 22.39 public participation …. 22.41 reasonable apprehension of bias …. 22.41–22.43 statutory procedures …. 22.44–22.45 public servants must carry out statutory responsibilities …. 22.77 reasons for decisions failure to supply reasons …. 22.22 gathering of evidence …. 22.21 role of FOI legislation in uncovering material …. 22.25 written statements, public authorities …. 22.23–22.24

K Kakadu National Park …. 5.34, 12.6, 12.33, 18.68 Knowledge …. 20.49–20.50 Kyoto Protocol …. 17.4 assigned amounts of emissions …. 17.6 Australian targets …. 17.20 Cancun Agreements …. 17.7 clean development mechanism …. 17.10 Durban Platform for Enhanced Action …. 17.8 emission reduction targets …. 17.9 emissions trading …. 17.12–17.14 greenhouse gas inventory …. 17.5

joint implementation …. 17.11 Liberal Party opposition …. 17.15, 17.17

L Land and Environment Court of New South Wales …. 2.72 Large-scale Renewable Energy Target (LRET) …. 17.26 Law of the sea Australian EEZ and territorial rights …. 4.26 Australian Whale Sanctuary …. 4.27 exclusive economic zone …. 4.25 marine pollution control ballast water …. 15.139 dumping at sea …. 15.136 enforcement …. 15.138 territorial sea …. 4.25 United Nations Convention on the Law of the Sea (UNCLOS) …. 4.11, 15.114 whaling …. 4.27

Lawyers role in environmental law critics …. 1.21 matters of legitimate and expanding concern …. 1.18 need for confirmed by judiciary …. 1.19 significant role relative to scientists …. 1.22 science and …. 1.23 balance of probabilities …. 1.25 keeping up with developments …. 1.26 understanding of concepts …. 1.24

Legal aid …. 21.43 Legal professional privilege …. 20.68 LEPs see Local environmental plans Lex specialis …. 4.30 Licensing carbon capture and storage (CCS) …. 17.34 Crown land …. 9.14 merits appeals …. 22.3 permissive property rights …. 3.11 pollution control …. 15.59, 15.68, 15.70, 15.75 application not determined in time …. 15.62 Australian Capital Territory …. 15.60 compliance …. 15.65 conditions …. 15.75–15.76 discretion of authority …. 15.63 economic incentives …. 15.72–15.74 financial assurances …. 15.77 New South Wales …. 15.60 Queensland …. 15.61 regarding relevant matters …. 15.66–15.71 surrender, revocation and suspension …. 15.79 transfer to new operators …. 15.64 threatened species …. 14.80 water access …. 18.29

Local environmental plans (LEPs) …. 9.49 land clearing …. 13.32 minister’s power to overrule prohibition …. 14.96 net gain test …. 13.51

Local government Agenda 21 …. 2.44 coastal zone management plan …. 18.54 environmental policy, influence on …. 2.44 native vegetation controls …. 13.11 protected from liability …. 17.51–17.53 reserves …. 12.2 statutory exemptions from liability …. 18.56 tree preservation orders …. 13.34

Local planning …. 9.49 Australian Capital Territory …. 9.62 development control see Development control existing uses …. 9.53–9.54 New South Wales …. 9.55 Northern Territory …. 9.61 Queensland …. 9.57 setting ground rules for development …. 9.52 showing activities permitted or restricted in certain areas …. 9.50 South Australia …. 9.58 Tasmania …. 9.60 Victoria …. 9.56 Western Australia …. 9.59 zoning …. 9.51

Lock the Gate Alliance …. 2.38 Locus standi see Standing to sue London Dumping Convention …. 15.114, 15.136

M

Management plans accreditation of …. 6.29 acting in accordance with …. 9.21 biodiversity certification …. 9.24 coastal zone …. 18.54, 18.56 compliance with standards …. 9.16 Crown land …. 9.13 non-compliance …. 9.22 objectives set out …. 9.19 Ramsar wetlands …. 9.17 reflecting objects of legislation …. 9.17–9.18 strategic assessment …. 9.23 Tasmania …. 9.18 water resources avoidance of uncertainty …. 18.28 defining sharing rules …. 18.24 environmental water rules …. 18.25 impact of severe water shortages …. 18.22 judicial review …. 18.26 protection of water source priority …. 18.27 wildlife conservation …. 9.20

Mandatory Renewable Energy Target (MRET) …. 17.25 Marine and aquatic reserves see also Fisheries Commonwealth …. 12.57–12.58 Great Barrier Reef see Great Barrier Reef New South Wales …. 12.59–12.61 Queensland …. 12.62 South Australia …. 12.63

Tasmania …. 12.64 Victoria …. 12.65 Western Australia …. 12.66

Marine pollution control see also Pollution control air pollution …. 15.128 anti-fouling systems …. 15.129 ballast water …. 15.139 Convention for the Prevention of Pollution from Ships …. 15.114 criminal liability …. 15.126 dumping at sea …. 15.136 enforcement …. 15.138 garbage …. 15.128 Great Barrier Reef …. 15.130 harmful substances …. 15.128 HMAS Adelaide case …. 15.137 liability for damage …. 15.121–15.122 London Dumping Convention …. 15.114, 15.136 MARPOL Convention …. 15.115 areas regulated …. 15.116 enforcement …. 15.120 flag state …. 15.118 measures introduced …. 15.117 port state …. 15.118 rights of intervention …. 15.119 offshore petroleum …. 15.127 responsibility and liability for damage …. 15.121 sewage …. 15.128 Supplementary Fund

compensation claims …. 15.124 hazardous and noxious substances …. 15.125 purpose …. 15.123 United Nations Convention on the Law of the Sea (UNCLOS) …. 15.114

MARPOL Convention see Marine pollution control McKenzie friend …. 19.53 Media role in reporting issues …. 2.43

Mediation …. 4.22 Merits appeals see also Judicial review advantages …. 22.6 alternatives to …. 22.2 climate change …. 17.56–17.57 commissioners …. 22.4 costs …. 22.9–22.10 criticisms of …. 22.6 evidence …. 22.11 expert witnesses …. 22.11 hearings de novo …. 22.7 legal challenge combined with …. 22.8 legal proceedings, distinguished from …. 22.4 licence applicants …. 22.3 licensing decisions …. 22.7 principles guiding court decisions …. 22.5 third parties …. 22.3

Merits review impact of judges’ decisions …. 2.70, 2.71

judicial review, distinguished from …. 2.69

Mining Antarctica, prohibited …. 12.33 assessment responsibilities transferred to protection agencies …. 18.61 coal seam gas increase in interest …. 18.64 New South Wales …. 18.65–18.66 opposition to …. 18.65–18.66 Queensland …. 18.65 South Australia …. 18.65 Western Australia …. 18.65 environmental controls, vague …. 18.59 Kakadu National Park, prohibited …. 12.33 longwall …. 18.62 off-shore exploration …. 18.59 on-shore exploration …. 18.59 provisions for identification and management of environmental issues …. 18.60 radiation …. 15.131 restricted/prohibited in certain areas …. 18.62 uranium …. 15.132, 18.67

Murray–Darling Basin 1997 cap on extractions …. 18.32 Basin Authority …. 18.33 Commission …. 18.31 difficulties in achieving objectives …. 18.37 entitlement principles …. 18.36 Ministerial Council …. 18.31

Plan …. 18.34–18.35

N National Conservation Strategy …. 8.3 National Environment Protection Council …. 5.63, 15.3 National Environment Protection Measures (NEPMs) …. 15.4 air toxics …. 15.12 ambient air quality …. 15.7 assessment of site contamination …. 15.8 diesel vehicle emissions …. 15.11 enforcement …. 15.16 implementation …. 15.14–15.15 movement of controlled waste …. 15.9 National Pollutant Inventory (NPI) …. 15.10 notice to make draft …. 15.6 used packaging materials …. 15.13

National Forest Policy Statement …. 18.69 National Green Leasing Policy (NGLP) …. 8.55 National Health and Medical Research Council (NHMRC) …. 5.63 National Heritage List …. 12.38 National Heritage Trust …. 5.27 National Landcare Program …. 5.27 National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) …. 15.127 National Pollutant Inventory (NPI) …. 15.10 National Representative System of Marine Protected Areas (NRSMPA) …. 12.7, 12.56

National Reserve System (NRS) …. 12.7 National Reserve System of Australia …. Pt D.10 National Strategy for Ecologically Sustainable Development (NSESD) …. 8.15 National Strategy for the Conservation of Australia’s Biological Diversity …. 12.39 National Water Initiative (NWI) …. 18.21 Native title see also Aboriginal land rights enactment of Native Title Act 1993 …. 2.10 extent of rights …. 2.9 commercial harvesting …. 2.11 extinguished by legislative control of natural resources …. 2.13 Indigenous land use agreements (ILUAs) …. 2.14 Mabo decision …. 2.8 onus on claimant to prove claim …. 2.12 partial or full success of claims …. 2.14 terra nullius …. 2.8

Native vegetation controls Australian Capital Territory …. 13.15 biodiversity credits …. 13.7 combination of voluntary and regulatory techniques …. 13.5 Crown leases …. 13.63 New South Wales …. 13.64 Northern Territory …. 13.65 Queensland …. 13.66 South Australia …. 13.67–13.68 duty of care for biodiversity protection …. 13.6 local decision-making …. 13.8

loss and mismanagement …. 13.1 New South Wales …. 13.4 different approaches …. 13.16 enforcement …. 13.17 other exemptions …. 13.20 problems exemptions …. 13.21 routine agricultural management …. 13.19 sustainable grazing excluded …. 13.18 water pollution offence …. 13.22 offsets Australian Capital Territory …. 13.42 criticisms of …. 13.36–13.37 definition …. 13.35 direct …. 13.40 Environment Protection and Biodiversity Conservation Act 1999 (Cth) …. 13.62 indirect …. 13.40 as last resort …. 13.52–13.61 New South Wales …. 13.43–13.51 Queensland …. 13.38 South Australia …. 13.41 Tasmania …. 13.42 Victoria …. 13.38 Western Australia …. 13.39 planning controls land clearing …. 13.32 New South Wales …. 13.31 Northern Territory …. 13.31 private land …. 13.2

Queensland compensation for losses incurred in compliance …. 13.23 objectives …. 13.24 offences …. 13.26 vegetation defined …. 13.25 regulation not complete answer …. 13.3 South Australia clearing without consent …. 13.12 council approval required …. 13.11 enforcement of breaches …. 13.13 historical background …. 13.9 legislation enacted …. 13.10 trees local council preservation orders …. 13.34 South Australia …. 13.33 Victoria no net loss …. 13.27 rivers and river catchments …. 13.29 tighter controls imposed by local authorities …. 13.28 Western Australia …. 13.30

Native Vegetation Council …. 13.12 Native wildlife protection see Wildlife protection Natural justice procedural fairness common law requirements supplemented or substituted …. 22.41 principles upheld …. 22.33 excluded from decision-making …. 22.38

Natural resource management

at common law …. 18.1 consideration to those who earn living from …. 18.3 environmental management …. 18.5 full integration into project assessment …. 18.8 given to other agencies …. 18.7 integrated government structural reform …. 18.10–18.11 placement of responsibilities on fisheries …. 18.9 vague instructions for assessment …. 18.6 environmental planning system …. 18.12 cumulative impacts of decision-making overlooked …. 18.16–18.19 interested regulator concurring in consent …. 18.14 obtaining consents from different authorities …. 18.13 used under different statutory regime …. 18.15 nationally integrated schemes …. 18.2 State Natural Resource Management Plan, SA …. 9.66 Tasmania …. 9.67 Victoria …. 9.69 water resources see Water resources Western Australia …. 9.68

Natural Resource Management Ministerial Council (NRMMC) …. 5.63 Natural resources civil claims for damages against protestors …. 2.41, 2.42 Danube Dam case …. 4.16 exclusive economic zone …. 4.25 land managers, statutory liability …. 3.51–3.52 native title …. 2.11–2.14 property rights …. 3.4–3.5

control vested in Crown …. 3.8 measures needed to ensure sustainability …. 3.7 static only …. 3.6 transfers of entitlement …. 3.11 removal of common law rights …. 2.17 territorial sea …. 4.25 tortious actions against environmentalists and protestors …. 2.40 United Nations Convention on the Law of the Sea (UNCLOS) …. 4.11 vesting control …. 3.8

Natural resources management (NRM) …. 9.63 Strategic Regional Land Use Policy, NSW …. 9.65 water resources, NSW …. 9.64

Negligence …. 20.47–20.48 duty of care …. 3.29 economic loss …. 3.28, 3.31 foreseeable harm …. 3.29 personal injury …. 3.28, 3.30, 3.32–3.34 public authorities assumption of control …. 3.35 cause and effect, climate change …. 3.36 liability lessened …. 3.37 special statutory power …. 3.38 standard of care …. 3.29

Negotiation compliance and enforcement of obligations …. 4.22

Negotiations international …. 2.38

Neighbourhood Environment Improvement Plan (NEIP) ….

15.49 Net gain test …. 13.51 New South Wales alternative dispute resolution …. 22.13 coal seam gas …. 18.65–18.66 coastal zone councils and agencies, statutory exemptions from liability …. 18.56 local government management plans …. 18.54 Sea Level Rise Policy Statement …. 18.55 SEPP 71 Coastal Protection …. 18.53 conservation agreements …. 12.46–12.47 contaminated land contaminator and landowner to notify regulator …. 16.34 mandatory management order …. 16.36 planning functions …. 16.30 SEPP 55 — Remediation of Land …. 16.28–16.29 criminal remedies …. 20.25 duty of care arising from conferment …. 3.32–3.34 ecologically sustainable development …. 8.28 definition …. 8.19 enforceable undertakings …. 15.100, 20.20 Environmental Defender’s Office (EDO) …. 1.30 environmental harm, offences …. 15.109 environmental impact assessment …. 11.16 activity …. 11.21–11.23 critical habitat and threatened species, content …. 11.38 critical habitat and threatened species …. 11.35–11.37 Crown development …. 11.20

decision not to require EIS …. 11.30 designated development …. 11.17–11.19 determining authority …. 11.31–11.32 likely to significantly affect environment …. 11.24–11.29 public review of EIS …. 11.39–11.40 state significant development (SSD) …. 11.33–11.34 state significant infrastructure (SSI) …. 11.33–11.34 environmental planning instruments …. 9.38 environmental planning regime …. 2.55 fast-tracking …. 10.53, 10.61–10.62 individual duties …. 7.29 land use …. 9.55 licensing, pollution control …. 15.75 local planning …. 9.55 marine and aquatic reserves …. 12.59–12.61 merits appeals …. 10.70 merits review …. 8.52 mining longwall …. 18.62 ministerial directions to councils …. 9.47 native vegetation controls …. 13.4 Crown leases …. 13.64 different approaches …. 13.16 enforcement …. 13.17 offsets …. 13.43–13.51 other exemptions …. 13.20 problems exemptions …. 13.21 routine agricultural management …. 13.19

sustainable grazing excluded …. 13.18 water pollution offence …. 13.22 native wildlife protection certification of planning instruments …. 14.97 conflict with Commonwealth listing processes …. 14.85 critical habitat declaration …. 14.89 fauna …. 14.37–14.40 flora …. 14.41 listing for nominations …. 14.86 recovery plans …. 14.90, 14.92 species impact statements …. 14.94–14.96 stop orders …. 14.42 traditional Aboriginal customs …. 14.64 planning agreements …. 10.48 pollution control confidentiality of audit documents …. 15.85 environmental monitoring …. 15.82 review of decisions …. 15.88 protected areas …. 12.45–12.47 public interest …. 8.31 responsibility to fulfil objectives …. 7.26 special statutory power …. 3.38 standing rules abolished …. 3.14 standing to sue …. 19.37 statutory changes to traditional rules …. 19.39 Strategic Regional Land Use Policy …. 9.65 structural adjustment schemes …. 2.22 summary offences …. 20.26

trees and property rights …. 3.15 voluntary planning agreements …. 10.48 water resources …. 9.64 planned/adaptive environmental water …. 18.23 recovery schemes …. 18.30 works approvals …. 15.58

Non-government organisations (NGOs) environmental policy fighting specific issues …. 2.39 role in …. 2.38

Northern Territory environmental harm, offences …. 15.105 environmental impact assessment …. 11.57 review of environmental aspects of proposals …. 11.92 land use …. 9.61 local planning …. 9.61 merits appeals …. 10.70 native vegetation controls Crown leases …. 13.65 native wildlife protection …. 14.43 traditional Aboriginal customs …. 14.65 pollution control confidentiality of audit documents …. 15.85 protected areas …. 12.50

Nuisance see also Trespass definition …. 3.19 multiple …. 3.27 proof of harm …. 3.20–3.23

public Attorney-General, request to commence proceedings …. 3.26 definition …. 3.24 non-common law remedies …. 3.54 special damage, need to show …. 3.25

O Offences see Criminal offences Office of Best Practice Regulation (OBPR) …. 5.62 Offsets green …. 15.74 native vegetation controls …. 13.42 Australian Capital Territory …. 13.42 criticisms of …. 13.36–13.37 definition …. 13.35 direct …. 13.40 Environment Protection and Biodiversity Conservation Act 1999 (Cth) …. 13.62 indirect …. 13.40 as last resort …. 13.52–13.61 New South Wales …. 13.43–13.51 Queensland …. 13.38 South Australia …. 13.41 Tasmania …. 13.42 Victoria …. 13.38 Western Australia …. 13.39 planning agreements …. 10.50–10.51

Opinio juris …. 4.16 Organisation for Economic Co-operation and Development

(OECD) …. 4.4 Ozone-depleting substances legislation and conventions …. 15.133 standards and monitoring …. 15.134

P People for the Ethical Treatment of Animals (PETA) …. 2.41 Petroleum see Mining Pollution definition Australian Capital Territory …. 15.24 important rather than trivial sources …. 15.23 New South Wales …. 15.20 Victoria …. 15.22 Western Australia …. 15.21, 15.24–15.25 environmental harm …. 15.26 environmental nuisance …. 15.29 material …. 15.28 serious …. 15.27

Pollution control see also Marine pollution control auditing accreditation …. 15.87 confidentiality of documents …. 15.84–15.86 mandatory …. 15.81 reasons for …. 15.80 codes of practice and guidelines compliance …. 15.42 development and application …. 15.41

enforcement …. 15.90 abatement notices …. 15.93–15.97 causing environmental harm …. 15.103–15.110 court orders …. 15.112–15.113 criminal sanctions …. 15.102 emergency powers …. 15.101 enforceable undertakings …. 15.100 environment protection orders …. 15.91–15.92 general offences …. 15.111 remediation …. 15.98–15.99 environment protection policies …. 15.38 drafts …. 15.40 enforcement …. 15.39 environmental monitoring New South Wales …. 15.82 Queensland …. 15.82 South Australia …. 15.82 Victoria …. 15.83 exemptions …. 15.78 general environmental duty failure to comply with …. 15.36 legislative provisions …. 15.35 history …. 15.17–15.19 industry plans, programs, systems and schemes …. 15.43 draft programs …. 15.48 environmental improvement programs (EIPs) …. 15.44–15.45 environmental management program (EMP) …. 15.45 environmental management systems (EMSs) …. 15.51–15.52

environmental plans …. 15.47 environmental standards …. 15.53–15.56 environmental waste reduction …. 15.46 Neighbourhood Environment Improvement Plan (NEIP) …. 15.49 sustainability covenant …. 15.50 works approvals …. 15.57–15.58 licensing …. 15.59 application not determined in time …. 15.62 Australian Capital Territory …. 15.60 compliance …. 15.65 conditions …. 15.75–15.76 discretion of authority …. 15.63 economic incentives …. 15.72–15.74 financial assurances …. 15.77 New South Wales …. 15.60 Queensland …. 15.61 regarding relevant matters …. 15.66–15.71 surrender, revocation and suspension …. 15.79 transfer to new operators …. 15.64 management …. 15.30 best practice environmental management …. 15.33–15.34 integrated systems …. 15.31 miscellaneous provisions in legislation …. 15.32 National Environment Protection Council …. 15.3 jurisdiction confined to ambient measures …. 15.5 National Environment Protection Measures (NEPMs) …. 15.4 air toxics …. 15.12 ambient air quality …. 15.7

assessment of site contamination …. 15.8 diesel vehicle emissions …. 15.11 enforcement …. 15.16 implementation …. 15.14–15.15 movement of controlled waste …. 15.9 National Pollutant Inventory (NPI) …. 15.10 notice to make draft …. 15.6 used packaging materials …. 15.13 overview …. 15.1 reporting obligations …. 15.37 review of decisions appeal not affecting operation of decision …. 15.89 Australian Capital Territory …. 15.88 New South Wales …. 15.88 Tasmania …. 15.88 Victoria …. 15.88 Western Australia …. 15.88

Precautionary principle …. 8.56 burden of proof …. 8.69–8.73 caution and prevention …. 8.74 conservation of biological diversity …. 8.82 in practice …. 8.66–8.68 triggering lack of full scientific certainty …. 8.59–8.65 serious or irreversible environmental damage …. 8.57–8.58

Prerogative writs …. 21.18–21.20 certiorari …. 21.20 continuing mandamus …. 21.19

mandamus …. 21.18 prohibition …. 21.20

Primary Industries Ministerial Council (PIMC) …. 5.63 Privative clauses …. 22.26–22.27 Hickman case …. 22.28 Kirk case …. 22.31 time limits used to block …. 22.29–22.30

Privilege against self-incrimination …. 20.66–20.67 Pro bono assistance …. 21.44 Procedural fairness circumstances …. 22.33–22.34 consultation …. 22.36–22.37 fair hearing …. 22.40 for affected persons …. 22.32 legitimate expectations …. 22.35 natural justice …. 22.38, 22.41 proper consideration by officers …. 22.39 public participation …. 22.41 reasonable apprehension of bias …. 22.41–22.43 statutory procedures …. 22.44–22.45

Property agreements and covenants distinguished …. 7.46–7.47 modification or removal …. 7.51 statutory agreements as ‘win–win’ form of management …. 7.48 conditions of development consent …. 7.49 native vegetation, protection of …. 7.50

Property rights climate change, effect on …. 17.45 security conferred on carbon trading …. 17.46 common law, role in protecting interests …. 2.3 cujus est solum, ejus est usque ad coelum et ad inferos …. 3.2 environment as ‘ecosystem’ of property entitlements …. 3.2 management of land …. 3.4 natural resources …. 3.4–3.5 control vested in Crown …. 3.8 measures needed to ensure sustainability …. 3.7 static only …. 3.6 transfers of entitlement …. 3.11 overturning through compensation …. 2.16 permissive interests …. 3.10 licences …. 3.11 proprietary interests …. 3.9 carbon sequestration …. 3.10 covenants …. 3.9 easements …. 3.9 leases …. 3.9 profits à prendre …. 3.9 real or personal property …. 3.3 riparian rights …. 3.14 separation of powers …. 2.5–2.6 terra nullius …. 3.2 trees …. 3.15

Protected areas see also Biodiversity conservation acquisition procedures …. 12.5

anticipate and prevent approach …. 12.4 Commonwealth biological resources …. 12.41 bioregional planning …. 12.9 biosphere reserves …. 12.25 conservation agreements …. 12.39 conservation zones …. 12.40 Great Barrier Reef …. 12.18–12.21 heritage places …. 12.35–12.36 inventories …. 12.10 national heritage places …. 12.38 overseas historical places …. 12.37 powers …. 12.6 National Reserve System (NRS) …. 12.7 Ramsar wetlands …. 12.22–12.24 reserves …. 12.26–12.34 world heritage sites …. 12.11–12.17 forest reserves …. 12.66 marine and aquatic reserves …. 12.56 Commonwealth …. 12.57–12.58 New South Wales …. 12.59–12.61 Queensland …. 12.62 South Australia …. 12.63 Tasmania …. 12.64 Victoria …. 12.65 Western Australia …. 12.66 reserves …. 12.1 development …. 12.69–12.75

under local government or Crown lands legislation …. 12.2 management …. 12.67–12.68 offences and enforcement …. 12.76 public benefits …. 12.3 state and territory Australian Capital Territory …. 12.44 New South Wales …. 12.45–12.47 Northern Territory …. 12.50 objects of …. 12.43 Queensland …. 12.48–12.49 South Australia …. 12.51 Tasmania …. 12.52 Victoria …. 12.53–12.54 voluntary acquisition …. 12.42 Western Australia …. 12.55

Protective costs orders capping …. 21.37 public nature of proceedings …. 21.38 straw plaintiffs …. 21.35 waiving or limiting of costs …. 21.36

Public authorities defence of statutory authority …. 3.39 conferred by implication …. 3.44 exemption clauses …. 3.40–3.43 implied immunity …. 3.45 negligence assumption of control …. 3.35 cause and effect, climate change …. 3.36

liability lessened …. 3.37 special statutory power …. 3.38 statutory schemes for liability all-encompassing duty of care …. 3.47–3.48 displacing common law …. 3.46 ecologically sustainable development …. 3.49 land managers, natural resources …. 3.51–3.52 pollution control legislation …. 3.50

Public environmental report (PER) South Australia …. 11.64 Western Australia …. 11.75

Public interest litigation see Costs in civil litigation Public resources see Natural resources Public trust doctrine …. 2.50 government stewardship of resources …. 2.53 submerged or sleeping …. 2.52 three related principles …. 2.51

Q Queensland coal seam gas …. 18.65 coastal zone coastal management plans …. 18.56 conservation parks …. 12.49 contaminated land obligation to notify …. 16.37 remediation notice …. 16.32 ecologically sustainable development

definition …. 8.19 enforcement orders …. 20.12 environmental harm, offences …. 15.106 environmental impact assessment …. 11.41 under Environmental Protection Act 1994 …. 11.54 under planning system …. 11.42–11.44 under State Development and Public Works Organisation Act 1971 (SDPWOA) …. 11.45–11.53 environmental planning instruments …. 9.36, 9.41 fast-tracking …. 10.53–10.54, 10.60 indictable offences …. 20.26 land clearing …. 2.27 land use …. 9.57 local planning …. 9.57 marine and aquatic reserves …. 12.62 merits appeals …. 10.70 native title rights …. 2.13 native vegetation controls compensation for losses incurred in compliance …. 13.23 Crown leases …. 13.66 objectives …. 13.24 offences …. 13.26 offsets …. 13.38 vegetation defined …. 13.25 native wildlife protection additional penalties …. 14.50 injuring, harming and disturbing …. 14.48 Nature Conservation Act 1992 (Qld) …. 14.45 offences …. 14.46

protected, prohibited and international …. 14.44 repairing of damaged habitat …. 14.49 taking of animals …. 14.47 traditional Aboriginal customs …. 14.66–14.67 pollution control confidentiality of audit documents …. 15.86 environmental monitoring …. 15.82 protected areas …. 12.48–12.49 responsibility to fulfil objectives …. 7.24 standing to sue interests …. 19.41 waste management minimisation and resource recovery …. 16.3 water efficiency …. 18.39 wild river areas …. 12.49

Queensland Planning and Environment Court …. 2.72

R RAMSAR convention …. 5.12 Ramsar wetlands …. 12.22–12.24 civil actions …. 4.46 management plan …. 9.17 pecuniary penalties …. 20.16

Recklessness …. 20.46 Reconsideration request …. 22.2 Recovery plans native wildlife protection New South Wales …. 14.90, 14.92

Tasmania …. 14.90 threatened species …. 14.22–14.25

Regional forest agreements see also Forest management based on degraded stock …. 18.70 limitations …. 18.74–18.75 nationally agreed criteria …. 18.71 overview …. 18.69 reduced Commonwealth interference …. 18.72–18.73

Remediation pollution control …. 15.98–15.99

Remediation orders …. 20.13, 21.22 linked with civil penalty provision …. 20.8 world heritage areas …. 12.15

Remedies …. 20.1–20.3 administrative orders avoiding liability by compliance with …. 20.6 enabling quick response …. 20.4 linking remediation order with civil penalty provision …. 20.8 local authorities …. 20.7 power to issue …. 20.5 civil …. 21.4 advantages over criminal remedies …. 20.10 costs in litigation see Costs in civil litigation damages …. 21.21 declarations …. 21.16–21.17 injunctions …. 21.5–21.8 interlocutory injunctions …. 21.9–21.15 prerogative writs …. 21.18–21.20

restoration/remediation orders …. 21.22 supplant recourse to criminal proceedings …. 20.11 classification of offences …. 20.36–20.37 common law displaces by Criminal Codes …. 20.38 knowledge …. 20.49–20.50 mens rea …. 20.44 mental element required for offence …. 20.39 negligence …. 20.47–20.48 recklessness …. 20.46 strict liability …. 20.40–20.43 vicarious liability …. 20.51–20.54 wilful intent …. 20.45 corporate crime see Corporations costs awarded against prosecutors …. 20.124 criminal …. 20.22 ‘beyond reasonable doubt’ …. 20.31 causation principle …. 20.32–20.34 expansive investigation powers …. 20.28–20.29 indictable offences …. 20.26 liability for omissions and failures …. 20.35 low range of punishment …. 20.23 New South Wales …. 20.25 presumptions in favour of prosecutors …. 20.30 South Australia …. 20.24 summary offences …. 20.26 treated as last resort …. 20.27 Victoria …. 20.24 defences …. 20.70

due diligence …. 20.71–20.75 honest and reasonable mistake of fact …. 20.76–20.80 mistake of law …. 20.81 ‘reasonable excuse’ …. 20.82 ‘unintended consequences’ …. 20.83–20.84 enforceable undertakings …. 20.18–20.19 freeing up of regulatory resources …. 20.21 New South Wales …. 20.20 Victoria …. 20.20 enforcement orders …. 20.12 other administrative measures …. 20.9 penalty provisions …. 20.14–20.17 remediation order …. 20.13 sentencing conferences …. 20.119 deterrence …. 20.95–20.102 further penalties for breaches …. 20.121–20.123 instinctive synthesis approach …. 20.103–20.112 penalties equal to benefits …. 20.120 purposes of …. 20.92 restorative justice …. 20.117–20.118 totality and evenhandedness …. 20.113–20.115 wide range of factors considered by courts …. 20.93

Report of the World Commission on Environment and Development (WCED) (Brundtland Report) …. 8.4, 8.6, 8.16 Representative actions …. 19.50–19.51 objective …. 19.52

Resource Assessment Commission (RAC) …. 8.16 Resource management plans see Natural resource management Restoration orders …. 21.22 Review of decisions see Judicial review; Merits appeals Rio Declaration …. 8.8, 8.11 Riparian rights …. 3.14

S Science advice to government …. 2.37 influence on environmental policy …. 2.35 precautionary principle scientific certainty …. 8.59–8.65, 8.69–8.73 probability standard …. 1.25 providing evidence in legal cases …. 2.36 research …. 2.36 scientific developments …. 1.26 scientific evaluation …. 1.21–1.23 scientific evidence …. 1.24

Sea Level Rise Policy Statement …. 18.55 Separation of powers property rights …. 2.5–2.6

SEPPs see State environmental planning policies Silent Spring (Rachel Carson) …. 1.11 Site appeals contaminated land New South Wales …. 16.44–16.45

Small-scale Renewable Energy Scheme (SRES) …. 17.26 Small-scale Technology Certificates (STCs) …. 17.27 Soil conservation development control …. 18.78 integrated management …. 18.77

South Australia coal seam gas …. 18.65 coastal zone coast protection districts …. 18.57 conservation parks …. 12.51 contaminated land clean-up orders …. 16.43 duty to report site …. 16.41 hazard abatement notices …. 16.42 investigation notices …. 16.42 mandatory reporting …. 16.39 notification of site …. 16.38 trigger for mandatory notification …. 16.40 criminal remedies …. 20.24 enforcement orders …. 20.13 environmental harm, offences …. 15.107 environmental impact assessment content and public review …. 11.66 development report (DR) …. 11.64 development, definition …. 11.61 lodgment of application or project proposal …. 11.63 major environmental, social or economic importance …. 11.62 mining operations …. 11.67

process carried out by Development Assessment Commission …. 11.65 public environmental report (PER) …. 11.64 rejection by Minister …. 11.60 review of environmental aspects of proposals …. 11.93 environmental planning instruments …. 9.37, 9.41 fast-tracking …. 10.57 individual duties …. 7.29 land use …. 9.58 licensing, pollution control …. 15.67 local planning …. 9.58 marine and aquatic reserves …. 12.63 merits appeals …. 10.70 native vegetation controls clearing without consent …. 13.12 Crown leases …. 13.67–13.68 offsets …. 13.41 trees …. 13.33 Native vegetation controls council approval required …. 13.11 historical background …. 13.9 legislation enacted …. 13.10 native wildlife protection fauna …. 14.51–14.53 flora …. 14.54 traditional Aboriginal customs …. 14.68 pollution control confidentiality of audit documents …. 15.86 environmental monitoring …. 15.82

protected areas …. 12.51 responsibility to fulfil objectives …. 7.24–7.25 State Natural Resource Management Plan …. 9.66 works approvals …. 15.58

South Australian Environment, Resources and Development Court …. 2.72 South Pacific Regional Environment Program (SPREP) …. 4.4 Sovereignty of nations Australian EEZ and territorial rights …. 4.26 Australian Whale Sanctuary …. 4.27 exclusive economic zone …. 4.25 territorial sea …. 4.25

Species impact statement (SIS) …. 11.35–11.37 critical habitat and threatened species …. 11.35–11.37 development control …. 10.19–10.20

Standing Council on Environments and Water (SCEW) …. 5.63 Standing Council on Primary Industries (SCoPI) …. 5.63 Standing to sue …. 19.1 action by or with consent of Attorney-General …. 19.45–19.47 Australian Capital Territory …. 19.46 balancing property interests with freedom of trade …. 19.11 class and representative actions …. 19.48–19.52 conferred by legislation …. 19.4–19.5 dependent on remedy sought …. 19.3 economic interest …. 19.13–19.14 environmental interests not supporting …. 19.16 ‘friend of a parry’ …. 19.53 gaining commercial interest …. 19.12

intervenors …. 19.54–19.55 joining parties to proceedings …. 19.56–19.58 New South Wales …. 19.37 objectors, rights of appeal …. 19.20–19.21 protecting rights conferred by statutes …. 19.17–19.19 public interest litigants …. 19.7 Queensland interests …. 19.41 reappraisal by courts …. 19.30–19.37 rules …. 19.2 seeking injunction or declaration …. 19.9 social and cultural interests …. 19.15 ‘special interest’ …. 19.8, 19.10 statutory relaxation …. 19.38–19.44 Victoria …. 19.22–19.27 original objectors and ‘affected’ parties …. 19.42 Western Australia …. 19.28

State environmental planning policies (SEPPs) SEPP 55 — Remediation of Land …. 16.28–16.29 SEPP 71 Coastal Protection …. 18.53

State legislative powers acting in parallel with Commonwealth powers …. 5.50 Constitution restrictions on states s 90 …. 5.40–5.41 s 92 …. 5.42–5.45 restrictions …. 5.39

State of the Environment Reports (SOEs) …. 1.35 State significant development (SSD) …. 11.33–11.34

State significant infrastructure (SSI) …. 11.33–11.34 Statement of environmental effects (SEE) …. 10.13 Statute law impact on common law …. 2.2

Stop orders interlocutory balance of convenience …. 21.10 establishing prima facie case …. 21.9 undertaking for damages …. 21.11–21.15

Strategic environmental planning see Environmental planning Structural adjustment schemes …. 2.22 Sustainability covenants …. 15.50 Sustainable development see Ecologically sustainable development Brundtland Report …. 8.4, 8.6, 8.16 definition …. 8.4 Earth Summit 1992 …. 8.7 Agenda 21 …. 8.10, 8.13 Rio Declaration …. 8.8, 8.11 Earth Summit 1997 …. 8.12 Earth Summit 2012 …. 8.13 global ideal …. 8.4 impact of increasing population and technological advances …. 8.5 World Summit on Sustainable Development 2002 …. 8.12

T Tasmania civil claims for damages against protestors …. 2.41

coastal zone State Coastal Policy 1996 …. 18.58 ecologically sustainable development …. 8.30 environmental harm, offences …. 15.107 environmental impact assessment determining terms of reference …. 11.79 Level 1 activities …. 11.77 Level 2 activities …. 11.78 Level 3 activities …. 11.78 no revision of EIS possible …. 11.81 projects of regional significance …. 11.82–11.85 public consultation before assessment complete …. 11.80 environmental planning instruments …. 9.37, 9.40 fast-tracking …. 10.59 land use …. 9.60 local planning …. 9.60 management plans …. 9.18 marine and aquatic reserves …. 12.64 merits appeals …. 10.70 native vegetation controls offsets …. 13.42 native wildlife protection …. 14.55 recovery plans …. 14.90 traditional Aboriginal customs …. 14.69 natural resource management (NRM) …. 9.67 pollution control confidentiality of audit documents …. 15.86 review of decisions …. 15.88

protected areas …. 12.52 rationalisation of resource allocation …. 9.11 responsibility to fulfil objectives …. 7.24 standing to sue action by Attorney-General …. 19.46 tortious actions against environmentalists and protestors …. 2.40

Tasmanian Dams case corporations power …. 5.16–5.17 external affairs power …. 5.11–5.12 World Heritage Convention …. 4.44, 5.4 bona fides …. 5.12 conformity of legislation …. 5.13

Tasmanian Forests case …. 5.15 Taxation Commonwealth carbon pricing mechanism …. 5.24 encouraging acceptable behaviour …. 5.25 environment protection earthworks …. 5.26 hybrid …. 5.24 pernicious outcomes …. 5.26 powers …. 5.23 states constitutional limits …. 5.40 royalties …. 5.41

Terra nullius …. 2.8, 3.2 Threatened species see also Biodiversity conservation Antarctic Treaty (Environment Protection) Act 1980 (Cth) …. 14.10 approved conservation advice …. 14.14

biodiversity and land use planning …. 14.93 evaluating applications for development …. 14.98 species impact statements …. 14.94–14.96 biosecurity …. 14.8 categories of …. 14.12 cetaceans …. 14.29 Commonwealth fisheries and marine areas …. 14.9 Commonwealth responsibilities CITES implementation …. 14.4 illegal trading …. 14.2 information gathering for ministerial decisions …. 14.6 relaxation of export policies …. 14.3 report on prosecutions and illegal imports/exports …. 14.5 conservation orders offences against …. 14.27 process …. 14.26 controlled actions, approval …. 14.20 critical habitat …. 14.21 eradication and control of non-native species …. 14.32 Flora and Fauna Guarantee Act 1988 (Vic) …. 14.73 guarantee strategy …. 14.76 interim conservation orders …. 14.77 list of threatened species and potentially threatening processes …. 14.75 objectives …. 14.74 offences and penalties …. 14.78 interstate trade in wildlife …. 14.7 listed marine species …. 14.30 listing of

amendment and variation of …. 14.15 criminal penalties …. 14.19 key threatening processes …. 14.16 nominations for …. 14.17 offences …. 14.18 migratory species …. 14.28 native wildlife protection Australian Capital Territory …. 14.36 New South Wales …. 14.37–14.42 Northern Territory …. 14.43, 14.51–14.54 Queensland …. 14.44–14.50 Tasmania …. 14.55 traditional Aboriginal customs …. 14.63–14.71 Victoria …. 14.56–14.58 Western Australia …. 14.59–14.62 quarantine …. 14.8 recovery plans …. 14.22–14.25 state and territory legislation methods to control capture or killing …. 14.35 protected and unprotected species …. 14.34 purpose of …. 14.33 state legislation approaches consultant advice …. 14.82 criteria for licensing spelt out …. 14.80 failure to list key threatening processes …. 14.88 identification of species …. 14.84 listing issues and problems …. 14.87 listing nominations …. 14.86

listings …. 14.79 local council roadworks …. 14.82 NSW conflict with Commonwealth listing processes …. 14.85 problems with critical habitat declarations …. 14.89 recovery and threat abatement plans …. 14.90–14.92 remediation action plan …. 14.83 sanctions for non-compliance …. 14.81 threat abatement plans …. 14.24–14.25 wildlife conservation plans …. 14.31 zoological gardens, role of …. 14.11

Tradeable emissions schemes …. 15.73 Traditional Aboriginal customs …. 14.63–14.71 Treaties and conventions Antarctic Treaty …. Pt D.8 Basel Convention …. 4.30, 16.20 Convention for the Prevention of Pollution from Ships …. 15.114 Convention on Biological Diversity …. 4.30, 12.4, Pt D.5–Pt D.6 Convention on Civil Liability for Oil Pollution Damage …. 15.121 Convention on Conservation of Nature in the South Pacific (Apia Convention) …. Pt D.8 Convention on International Trade in Endangered Species (CITES) …. 4.11, 4.30 Convention on Liability and Compensation for the Carriage of Hazardous and Noxious Substances by Sea …. 15.125 Convention on Migratory Species (Bonn Convention) …. 14.28 Convention on the Prevention of Marine Pollution by the Dumping of Wastes and Other Matter …. 15.114, 15.136 Convention on Wetlands of International Importance (RAMSAR Convention) …. 12.22

Convention to ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region …. 16.22 Framework Convention on Climate Change …. 4.30 London Dumping Convention …. 15.114, 15.136 MARPOL Convention …. 15.115–15.120 United Nations Convention on the Law of the Sea (UNCLOS) …. 4.11 Vienna Convention on the Protection of the Ozone Layer …. 4.30 Waigani Convention …. 16.22 World Heritage Convention …. 5.4

Trespass see also Nuisance definition …. 3.19

U Uluru (Ayers Rock) National Park …. 12.6, 12.33 UNESCO Man and the Biosphere Program …. 12.25 United Kingdom Department of Environment, creation of …. 1.12 Royal Commission on Environmental Pollution …. 1.12

United Nations Commission on Sustainable Development (CSD) …. 8.10 Conference on the Human Environment …. 8.2 Convention on the Law of the Sea (UNCLOS) …. 4.11, 15.114 Development Program …. 4.4 Economic, Scientific and Cultural Organisation (UNESCO) …. 4.4 Environment Program (UNEP) …. 4.4

United States Council for Environmental Quality …. 1.12

Environmental Quality Act 1969 …. 1.12 Gasoline Rule …. 4.33 National Environmental Policy Act 1969 …. 1.12 Office of Environmental Quality …. 1.12

Uruguay Round of Multilateral Trade Negotiations …. 4.30

V Vicarious liability concept …. 20.51 corporate officers directors …. 20.61 dual capacity as director and individual …. 20.62 finding who is truly at fault …. 20.60 corporations alternative rules of attribution …. 20.57 Tesco principle …. 20.55–20.56 statutory imputation …. 20.54, 20.58 ‘sufficient control’ …. 20.52–20.53

Victoria abatement notices …. 15.94 Catchment Management Council …. 9.69 coastal zone Victorian Coastal Strategy (VCS) …. 18.57 contaminated land state environment protection policy (SEPP) …. 16.31 criminal remedies …. 20.24 ecologically sustainable development definition …. 8.19

energy efficiency schemes …. 17.30 enforceable undertakings …. 15.100, 20.20 enforcement orders …. 20.12 environmental harm, offences …. 15.110 environmental impact assessment environment effects statement (EES), public advertisement …. 11.59 environment effects statement (EES), submission …. 11.58 fast-tracking …. 10.56 individual duties …. 7.29 land use …. 9.56 licensing, pollution control …. 15.70 local planning …. 9.56 marine and aquatic reserves …. 12.65 merits appeals …. 10.70 native vegetation controls no net loss …. 13.27 offsets …. 13.38 rivers and river catchments …. 13.29 tighter controls imposed by local authorities …. 13.28 native wildlife protection fauna …. 14.56 flora …. 14.57 Flora and Fauna Guarantee Act 1988 (Vic) …. 14.73–14.78 roadside weed and pest animal management …. 14.58 traditional Aboriginal customs …. 14.70 Neighbourhood Environment Improvement Plan (NEIP) …. 15.49 pollution control confidentiality of audit documents …. 15.85

environmental monitoring …. 15.83 review of decisions …. 15.88 protected areas …. 12.53–12.54 soil conservation …. 18.78 standing to sue …. 19.22–19.27 original objectors and ‘affected’ parties …. 19.42 summary offences …. 20.26 sustainability covenants …. 7.48, 15.50 Victoria Planning Provisions …. 9.44 voluntary planning agreements …. 10.49 waste management minimisation and resource recovery …. 16.4

Victorian Energy Efficiency Target (VEET) …. 17.30 Vienna Convention on the Protection of the Ozone Layer …. 4.30 Voluntary approach to conservation …. 2.27 Voluntary planning agreements …. 10.47 New South Wales …. 10.48 Victoria …. 10.49

W Waigani Convention …. 16.22 Waste management see also Hazardous waste activities, facilities and transport …. 16.17 extended producer responsibility (EPR) schemes …. 16.5 beverage containers …. 16.8–16.9 plastic bags …. 16.12 policy behind …. 16.6 used packaging materials …. 16.10–16.11

voluntary …. 16.7 minimisation and resource recovery …. 16.2 Queensland …. 16.3 Victoria …. 16.4 product stewardship national scheme …. 16.13 co-regulatory schemes …. 16.14 safe storage …. 16.18 waste, definitions …. 16.15–16.16

Water Efficiency Labelling Scheme (WELS) …. 18.38 Water resources access licences …. 18.29 management plans …. 18.23–18.29 avoidance of uncertainty …. 18.28 defining sharing rules …. 18.24 environmental water rules …. 18.25 impact of severe water shortages …. 18.22 judicial review …. 18.26 protection of water source priority …. 18.27 Murray–Darling Basin Basin Authority …. 18.33 Commission …. 18.31 difficulties in achieving objectives …. 18.37 entitlement principles …. 18.36 Ministerial Council …. 18.31 1997 cap on extractions …. 18.32 Plan …. 18.34–18.35 National Water Initiative (NWI) …. 18.21

New South Wales planned/adaptive environmental water …. 18.23 recovery schemes …. 18.30 regulatory schemes replacing common law …. 18.20 State Water Management Outcomes Plan (SWMOP) …. 18.25 trading in entitlements …. 18.30 water efficiency Building Sustainability Index (BASIX) …. 18.40 New South Wales …. 18.39–18.40 Queensland …. 18.39 Water Efficiency Labelling Scheme (WELS) …. 18.38

Western Australia abatement notices …. 15.97 alternative dispute resolution …. 22.15 coal seam gas …. 18.65 coastal zone State Coastal Planning Policy 2013 …. 18.58 contaminated land approval for subdivisions stopped if on register …. 16.33 ecologically sustainable development …. 8.27 enforcement orders …. 20.12 environmental harm, offences …. 15.108 environmental impact assessment assessment on proponent information (API) …. 11.75 changes after ministerial statement …. 11.76 derived proposals …. 11.72 how proposal meets EPA objectives …. 11.74 proponent informed of assessment of proposal …. 11.73

review of environmental aspects of proposals …. 11.94 significant and strategic proposals …. 11.68–11.71 land use …. 9.59 licensing, pollution control …. 15.68, 15.70 local planning …. 9.59 marine and aquatic reserves …. 12.66 merits appeals …. 10.70 native vegetation controls …. 13.30 offsets …. 13.39 native wildlife protection fauna …. 14.59–14.60 flora …. 14.61–14.62 traditional Aboriginal customs …. 14.71 natural resource management (NRM) …. 9.68 pollution control review of decisions …. 15.88 protected areas …. 12.55 standing to sue …. 19.28

Wetlands …. 12.22–12.24 civil actions …. 4.46 management plan …. 9.17 pecuniary penalties …. 20.16

Whaling …. 4.27 Wild river areas Queensland …. 12.49

Wildlife protection see also Biodiversity conservation; Threatened species Antarctic Treaty …. Pt D.8

Australian Capital Territory …. 14.36 cetaceans …. 14.29 New South Wales certification of planning instruments …. 14.97 conflict with Commonwealth listing processes …. 14.85 critical habitat declaration …. 14.89 fauna …. 14.37–14.40 flora …. 14.41 listing for nominations …. 14.86 recovery plans …. 14.90, 14.92 species impact statements …. 14.94–14.96 stop orders …. 14.42 traditional Aboriginal customs …. 14.64 Northern Territory …. 14.43 traditional Aboriginal customs …. 14.65 Queensland additional penalties …. 14.50 injuring, harming and disturbing …. 14.48 Nature Conservation Act 1992 (Qld) …. 14.45 offences …. 14.46 protected, prohibited and international …. 14.44 repairing of damaged habitat …. 14.49 taking of animals …. 14.47 traditional Aboriginal customs …. 14.66–14.67 South Australia fauna …. 14.51–14.53 flora …. 14.54 traditional Aboriginal customs …. 14.68

Tasmania …. 14.55 recovery plans …. 14.90 traditional Aboriginal customs …. 14.69 threatened species Australian Capital Territory …. 14.36 New South Wales …. 14.37–14.42 Northern Territory …. 14.43, 14.51–14.54 Queensland …. 14.44–14.50 Tasmania …. 14.55 Victoria …. 14.56–14.58 Western Australia …. 14.59–14.62 Victoria fauna …. 14.56 flora …. 14.57 Flora and Fauna Guarantee Act 1988 (Vic) …. 14.73–14.78 roadside weed and pest animal management …. 14.58 traditional Aboriginal customs …. 14.70 Western Australia fauna …. 14.59–14.60 flora …. 14.61–14.62 traditional Aboriginal customs …. 14.71

Wilful intent …. 20.45 Wind farms climate change litigation …. 17.54 disadvantages of …. 17.57

Works approvals state variations …. 15.58 stipulation of equipment and technical requirements …. 15.57

World Conservation Union (IUCN) …. 2.38 World heritage areas acting consistently with World Heritage Convention …. 12.16 Australian properties …. 12.11 declared world heritage property …. 12.12 delisting …. 12.13 Great Barrier Reef …. 12.15, 12.18–12.21 management plans …. 12.17 offences against …. 12.14 remediation orders …. 12.15 public notice …. 12.13 Ramsar wetlands …. 12.22–12.24

World Heritage Convention …. 4.12, 5.4, 12.11 Tasmanian Dams case bona fides …. 5.15 external affairs power …. 5.11–5.12

World Network of Biosphere Reserves …. 12.25 World Trade Organization (WTO) Agreement on Sanitary and Photosanitary Measures (SPS) Agreement …. 4.38 Appellate Body …. 4.32–4.37 Committee on Trade and Environment (CTE) …. 4.30 Disputes Resolution Panels …. 4.31 General Agreement on Tariffs and Trade (GATT) …. 4.30