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NELR Recent Developments NELR recent developments Uplisting of the Tasmanian Devil requirements of the Australian, 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, Peter Garrett 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: Olympic Dam Mine 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 South Australia that is in addition to that required for (including export of copper 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, National Environmental Law Review 2009: 2 7 NELR recent developments 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) 8 National Environmental Law Review 2009: 2 NELR recent developments 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.
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