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Uplisting of the Tasmanian Devil requirements of , South Australian The world’s largest surviving marsupial carnivore and Northern Territory governments. has been given increased status under the Documents are available at http://www.environment. Commonwealth EPBC Act. On 22 May 2009 gov.au/cgi-bin/epbc/epbc_ap.pl?name=current_ Environment Minister, announced referral_detail&proposal_id=2270. that the Tasmanian Devil will be uplisted from vulnerable to the endangered category under the Determination Regarding Management EPBC Act. of Acid Sulphate Soils by South Australian Government Amendments to the EPBC Regulations 2000 The Environment Minister determined on 12 May Amendments to the EPBC Regulations relating to 2009 that a proposal by the South Australian the taking of fish in Commonwealth reserves and Government to take emergency action to manage conservation zones commenced on 16 May 2009. acid sulphate soils in the Goolwa Channel, The amendments provide for determinations Finniss River and Currency Creek, SA, does not by the Director National Parks in relation to need further assessment under the EPBC Act. these areas and provide restrictions and offence The South Australian Government has made a provisions in relation to activities which do not series of undertakings to ensure there are no comply with those determinations. significant impacts on nationally protected matters including: Expansion – EIS • the provision of an additional 50 GL of released for public comment freshwater into the Lower Lakes, The environmental impact statement for the • delivery to the system of any water captured Olympic Dam mine expansion in that is in addition to that required for (including export of concentrate through emergency treatment, and the Port of Darwin) was released by BHP Billiton • an undertaking that no water will be extracted on 1 May 2009 for public comment until 7 August for irrigation from the water captured. 2009. The EIS has been prepared to meet the NEW SOUTH WALES Nicholas Brunton

DUTY TO REPORT CONTAMINATION UNDER officially commenced, and that the original THE CONTAMINATED LAND MANAGEMENT provisions are no longer in existence, means we ACT 1997 have no other choice but to apply the new regime. Camilla Charlton - Senior Associate Henry Davis York What is the duty to report? Background Under the CLM Act: The remaining amendments to the Contaminated • persons whose activities have contaminated Land Management ACT 1997 (CLM Act) commenced land; and on 1 July 2009, including the ‘duty to report’ • landowners whose land has been provisions under s.60. contaminated, The new Guidelines on the Duty to Report must notify DECC of that contamination. Contamination under the Contaminated Land What are the main changes to the duty? Management Act 1997 (the Guidelines), which provide guidance as to how the duty is to be Level of awareness/knowledge interpreted, do not come into force until 1 December An owner of land, or a person whose activities 2009 and the NSW Department of Environment, have contaminated land, must notify DECC of Climate Change (DECC) has indicated that the duty contamination as soon as practicable after the itself will not be enforced until that time. person ‘becomes aware’ of such contamination. Under the new regime, the definition of awareness However, the fact that the amendments have is expanded to include not only actual awareness,

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but also circumstances in which a person contaminants in groundwater will trigger the duty ‘ought reasonably to have been aware’ of the to notify. contamination. What should a site owner or operator do? A failure to identify and investigate potential • Step 1: Review site activities and history and contamination in such circumstances could mean undertake a site inspection the person has breached his/her responsibility • Step 2: Carry out investigations to report under the CLM Act and large fines may • Step 3: Assess the contamination apply. • Step 4: Assessment by DECC To determine whether the person ought reasonably to have been aware, or should reasonably become Implications for landowners aware, DECC will take into account: • Regardless of whether or not they have any • the person’s abilities, experience, qualifications actual knowledge of contamination, there and training; may be an obligation on landowners and • whether the person could reasonably have operators to consider the various indicators of sought advice that would have made he or she contamination to determine whether or not aware of the contamination; and further investigation is required. • the circumstances of the contamination. • As those indicators are fairly broad, there is likely to be a significant increase in the number If a person is considered to have the necessary of site investigations which will need to be experience and resources, then arguably he or she carried out. is under a duty to ‘become aware’, by considering • Reporting triggers are more specific, with various indicators of contamination, as set out prescribed levels of contaminants. However, in the Guidelines, to determine whether or not there is still a level of uncertainty as to the contamination may be present. interpretation of ‘indicators of contamination’ Notification triggers and when owners/persons responsible should seek further advice and undertake The new reporting regime no longer refers to investigations. ‘significant risk of harm’ sites (or ‘sites significant enough to warrant regulation’, as they are now called), and reporting is now required simply when REFORMS TO THE HERITAGE ACT specific ‘notification triggers’ are met. Janet McKelvey - solicitor Henry Davis York Under the CLM Act, a person is required to notify Introduction DECC of contamination when: In July 2007, an independent review of NSW • the level of contaminant in, or on, soil exceeds a heritage legislation was conducted and various level of contamination set out in any guidelines recommendations were made dealing with the with respect to a current or approved use of process surrounding State significant heritage the land, and a person has been, or foreseeably listing. Some of these recommendations have will be, exposed to the contaminant; or been now incorporated into the legislation by • the contaminant has entered, or will the passing of the Heritage Amendment Act 2009 foreseeably enter, neighbouring land, the (the Amendment Act) in June 2009. The changes atmosphere, groundwater or surface water, and have yet to commence operation. Essentially, the the contamination exceeds, or will foreseeably Amendment Act aims to provide for owners of exceed, a level of contamination set out in the heritage (or potential heritage) items to have more Guidelines and will foreseeably continue to influence over the listing process and to carry remain above that level; or out minor works without the need for approval. • the contamination meets certain criteria The Amendment Act also gives the Minister more prescribed by the regulations; or powers in relation to heritage items. The Guidelines provide further detail as to the specific triggers, dividing them into several different Heritage Council categories, and set out the levels above which The Heritage Council of NSW (the Heritage Council)

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is constituted under the Heritage Act and is the financial hardship to the owner, mortgagee body that makes recommendations to the Minister or lessee of the item or the land on which the for Planning (the Minister) regarding the listing item is situated. of, conservation and maintenance of heritage The Heritage Council must also consider the above items. The Amendment Act proposes to reduce criteria before making the initial recommendation the number of members of the Heritage Council to the Minister, in an attempt to reduce the number from 15 to 11. This will eliminate a representative of recommendations the Minister will have to from the Royal Australian Historical Society, Unions determine. NSW, a joint nominee of the Royal Australian Institute of Architects and the Planning Institute The Amendment Act seems to attempt to reduce of Australia and a member from the Department the number of recommendations for listing made of Planning. The new Heritage Council will consist to the Minister by establishing a higher threshold of eight experts appointed by the Minister, one of of criteria that must be met. The Heritage Act only those being a representative of the National Trust requires that an item meet one of the Heritage of Australia. The other three members will be the Council’s criteria for listing to be recommended. NSW Government Architect, the Director-General Under the amendments, an item will need to meet of the Department of Planning and the Director- more than one criteria approved by the Minister General of the Department of Environment and to be recommended for listing or must be of “such Climate Change. State significance” that a recommendation should be made. The Listing Process Similarly, the Minister can now remove an item from Previously, when the Heritage Council was the Register if the Heritage Council recommends it considering listing an item on the State Heritage or if the Minister is of the opinion: Register (the Register), they had to notify the Minister of the criteria they would be using to • that the item does not require long-term determine the matter. The Amendment Act requires conservation; or the Minister to approve the criteria and publish • that the listing will render the item incapable it in the Gazette, and the Heritage Council may of reasonable or economic use; or only use the published criteria. The Amendment • that the listing will cause undue financial Act is silent on whether the Minister can make hardship to the owner, mortgagee or lessee of amendments to criteria before it is approved and the item. gazetted. Presumably, if the Minister has the power The Amendment Act also allows any aggrieved to approve the criteria, he/she also has the power owners, mortgagees, lessees or occupiers of to reject or amend it. Accordingly, the Minister will items that are proposed to be listed to request play a greater role in establishing the criteria for the Minister to refer a listing recommendation heritage listing. to a Ministerial Review Panel or the Planning The Amendment Act also introduces new criteria Assessment Commission. It is unclear whether an into what the Minister must consider when deciding aggrieved owner will be able to make submissions whether an item is of State heritage significance to the Review Panel. and should be listed on the Register. Previously, Conservation Management Plans the fact that it was recommended for listing by the The Amendment Act has amended provisions Heritage Council was enough. Now, the Minister relating to Conservation Management Plans must consider: (CMPs). A CMP must be endorsed by the Heritage • the recommendation of the Heritage Council Council and must be prepared in accordance with that the item should be listed; the Heritage Council’s guidelines (which are yet to • whether the long-term conservation of the be released). item is necessary; • whether the listing would render the item The second reading speech gives us an indication incapable of reasonable or economic use of what will be contained in the Heritage Council’s (we note that there is no indication of what CMP guidelines. For example, the CMP may contain “reasonable or economic use” means); and provision for minor development that will not • whether the listing would cause undue materially affect the heritage significance of the

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item. Major Projects SEPP becomes Major Once the CMP is endorsed, no further approval will Development SEPP be required by the Heritage Council. CMPs must also From 1 July 2009, the Major Projects SEPP became be considered by the Heritage Council if approval known as the State Environmental Planning Policy for other work is sought by the owner. This is aimed (Major Development) 2005 (the Major Development at reducing red tape for owners of heritage items SEPP). The Major Developments SEPP now specifies who wish to carry out minor works. the form of development that will be determined by Joint Regional Planning Panels (JRPPs) and Stop work orders those developments that fall under Part 3A of the Currently, if any work is undertaken on a heritage Environmental Planning and Assessment Act 1979 listed item without approval, the only way to (EP&A). stop it is to seek an injunction by the Court. The Joint Regional Planning Panels Amendment Act will allow the Minister or the chairperson of the Heritage Council to issue stop From 1 July 2009, regionally significant work orders as an interim measure, allowing 40 days developments will be determined by new entities after the issuing of the order to take further Court called Joint Regional Planning Panels (JRPPs). There action or negotiate with the person undertaking are currently five panels covering most of NSW, with works. There is no appeal right against a stop work exception of the City of Sydney and Wagga Wagga. order. A Western Region panel is to be established shortly. JRPP’s comprise three members appointed by the Local Councils and Heritage Minister for Planning and two members appointed Local councils who wish to identify an item of by the Councils that are part of a local government heritage significance in their Local Environmental area in the region. Most members have now been Plan (LEP) may refer any objections to an appointed and a list is available on the Department independent hearing and assessment panel. This of Planning website. JRPPs may exercise various amendment gives owners more influence over planning functions as required by the Minister for whether their property or heritage item will be Planning, but their most significant role is to act listed on the Register or identified in an LEP. as a determining body for developments that are deemed to be regionally significant. The Amendment Act also states that local councils cannot refuse a development application on heritage What type of development will the JRPPs assess? grounds, if an approval has been obtained under Development that will require the approval of a the Heritage Act for the development. It may be JRPP, from 1 July 2009, includes: that the Heritage Council will require a CMP before • development with a capital investment value giving its approval to a proposed development. (CIV) of over $10 million; Currently, any Crown development that is • various public and private development which determined under the Environmental Planning and has a CIV over $5 million including affordable Assessment Act 1979 does not attract the operation housing, air transport facilities, child care of integrated development provisions. However, the centres, community facilities, correctional Amendment Act inserts a requirement for approval centres, educational establishments, electricity from the Heritage Council before the local council generating works, electricity transmission or determines a development application for Crown distribution networks, emergency services development. facilities, health services facilities, group homes, places of public worship, port facilities, public PLANNING REFORMS UPDATE - AUGUST 2009 administration buildings, public ferry wharves, Anneliese Korber - Senior Associate Henry Davis York rail infrastructure facilities, research stations, road infrastructure facilities, roads, sewerage The Environmental Planning and Assessment systems, telecommunications facilities, waste Amendment Act 2008 (Amendment Act) was or resource management facilities, water assented to on 25 June 2008 and introduced major supply systems, wharf or boating facilities; reforms to the NSW planning system. What follows • designated development; is a brief summary of the major changes.

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• Crown development above $5 million; Policies (SEPPs). • eco tourism development and a number of Draft SEPPs will now be subject to new consultation developments in coastal areas; procedures and the Minister for Planning may • crown development with a CIV over $5 million; publicise an explanation of the intended effect the • development where a local council is the proposed SEPP or seek and consider submissions applicant, owner or person carrying out the from the public on a matter. development, and where it has a CIV over $5 Changes to LEPs million; and Draft Local Environmental Plans (LEPs) have • subdivision of land into more than 250 lots and been replaced with ‘planning proposals’ which some coastal development. must explain the intended effect or purpose of a Certain development is excluded from the JRPP proposed LEP. These will usually be prepared by provisions including development for which councils and forwarded to the Minister for review consent is not required under another planning before community consultation takes place, under instrument (such as the Infrastructure SEPP), a new process known as ‘gateway determination’. complying development, development within the area of the City of Sydney, Part 3A development, Crown Development critical infrastructure and development for which Minor amendments have also been made to Crown the consent authority is not a council. development provisions in the EP&A Act. If the relevant consent authority does not determine a How will the JRPPs operate? Crown DA within 70 days, the applicant or consent Development applications, plans, drawings, authority may refer the DA to the Minister or the environmental impact statements and lodgment relevant JRPP. fees will continue to be submitted to the relevant Previously, a consent authority could refer a Crown council in the ordinary manner. Councils will retain DA to the Minister if it had not determined in within the right to exercise their functions in relation 40 days. If the JRPP fails to determine the DA within to the assessment process including requesting 50 days, it may be referred to the Minister. JRPPs information and public notification. Essentially, the will determine all Crown DAs lodged after 1 July JRPP is the final decision making body and has no 2009 for development with a CIV over $5 million. administrative role. Once all information relevant to the DA has been submitted to the council, the Section 149 certificates council may make a submission on the development Section 149(2) certificates have been updated to the JRPP before referring the matter for to reflect changes in terminology as a result of determination. Following determination, councils the amendments to the Contaminated Land retain the responsibility to notify applicants of the Management 1997 (NSW). From 1 July 2009, determination of the JRPP and are still responsible section 149 (2) certificates will, for example, for monitoring the consent and enforcing any identify whether the land to which the certificate conditions. relates is significantly contaminated land, subject As a consequence of the creation of JRPPs, some of an approved voluntary management proposal, of the categories of Part 3A development have subject to a management order or subject to an been altered. Part 3A development previously ongoing maintenance order. included, for example, residential, commercial or retail projects that have a CIV over $50 million. This Implications threshold has been lifted to a $100 million. These reforms substantially change the approval process for many types of developments. It has been Changes to SEPPs and REPs somewhat depoliticised at the local government The amendments also introduced changes to the level but the Minister retains many significant making of environmental planning instruments powers and has a wide influence over planning. (EPIs). All Regional Environmental Plans (REPs) Whether it has become more streamlined and have been repealed and the few remaining REPs simpler is another question. are now known as State Environmental Planning

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