Doing Business in Australia: Chapter 16 - Environmental and Planning Regulation

The primary federal legislation governing environmental matters is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The EPBC Act regulates the carrying out of 'actions' which will have a significant impact on:

• the environment of land or seas owned by the Commonwealth; or
• matters of national environmental significance, which reflect international agreements relating to the environment to which Australia is a party or other matters of national interest. These matters include World Heritage Places, Wetlands of International Importance (Ramsar Wetlands), Listed Threatened Species and Communities, Listed Migratory Species, National Heritage Places, the Great Barrier Reef Marine Park and Nuclear Actions. The matters also include water resources specifically in relation to large coal mining and CSG projects.

Any requirement to obtain approval under the EPBC Act is in addition to any requirement to obtain approval under state or territory legislation, although sometimes the same documentation may be used for both applications.

The new Federal Government has committed to reform of Australian’s national environmental laws in 2023.  Some of the details of those reforms was released in December 2022 and includes:

• the implementation of “national environmental standards” that will apply initially to environmental assessment, first nations engagement and participation in decision making, community engagement, regional planning and environmental offsets;
• the establishment of an independent statutory “environmental protection agency” that will have responsibility for assessment and approvals (subject to the Minister stepping in) and compliance under the EPBC Act;
• an increased focus on regional planning, with the intention that development zones and “no go” zones will be clearly identified;
• requirements in respect of greenhouse gas emissions from projects, in particular that project proponents will be required to publish their expected scope 1 and scope 2 emissions, and the proponent will also be required to disclose how their project aligns with Australia’s national and international obligations to reduce emissions.

Consultation on the reforms is expected to be ongoing throughout 2023, with legislation proposed to be introduced in late 2023.

Australia has in place a rapidly evolving suite of legislation directed at reporting of greenhouse gas emissions, a regime for development and trading of Australian Carbon Credit Units, and baseline emissions standards for facilities with large greenhouse gas emissions profiles.

In September of 2022, the Australian Government passed the Climate Change Act 2022 and the Climate Change (Consequential Amendments) Act 2022, which:

• legislate Australia’s commitment to reduce greenhouse gas emissions by 43% below 2005 levels by 2030;
• legislate Australian’s commitment to net zero by 2050;
• requires public annual emissions reduction reporting; and
• includes emissions reductions targets in the objectives of various Commonwealth entities.

Australia also has in place a system for the creation, trading and retirement or surrender of Australian Carbon Credit Units (ACCUs). ACCUs are regulated under the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) with one ACCU represented one tonne of CO2-e.

Greenhouse gas reporting is required for threshold facilities through the National Greenhouse and Energy Reporting Scheme (NGERS), implemented under the National Greenhouse and Energy Reporting Act 2007 (Cth). The NGERS requires a broad range of corporations to submit annual reports concerning their operations’ emissions of greenhouse gases and their production and consumption of energy.

The NGERS is discussed further in Chapter 18 of this publication, 'Energy & Renewables'. The Australian Government has also implemented the Renewable Energy Target (RET) which requires electricity suppliers in Australia to source a certain amount of their electricity from renewable sources. The RET is discussed further in Chapter 18 of this publication, 'Energy & Renewables'.

Each State and Territory has separate planning and environmental legislation.

While the legislation which has been enacted differs (sometimes widely) between the different jurisdictions, it is possible to identify some common themes in relation to:

• land use planning;
• land contamination; and
• environmental duties.

A brief overview of each of these issues is set out below.

Land use planning

In general, the land use planning legislation in each jurisdiction relies on planning instruments to control the use and development of land.

These planning instruments generally classify land into different zones and specify the types of development which may be:

• permitted without any requirement to obtain approval;
• prohibited; or
• permitted only after approval has been obtained.

In general, approval is required to change the use of land or a building (for example, from a house to a commercial office) or to erect any substantive structure, such as a building, on land. Failing to obtain approval where it is required is an offence and may also entitle an authority to issue an order requiring you to stop using the land for an unapproved purpose or to demolish any structures built without approval.

If approval is required to change the use of land or erect a structure, then:

• an environmental assessment (which involves making an assessment of the potential environmental impacts of carrying out a particular project or development) may be required to be carried out; and
• public notification may be required, which introduces third party submitter and appeal rights.

Land use approvals are generally granted by local councils, however development in certain areas or for certain purposes will be assessed by the state or territory government.

The land planning process is complex, and can cover considerations including land use, vegetation management, heritage, access to natural resources and transport considerations. Given this, you should obtain specific advice as to the land use planning approvals which will be required before you can carry out your project.

Land contamination

The states and territories in Australia all have legislation regulating land contamination. Land is usually regarded as being contaminated if it contains a substance at a concentration above that which is naturally occurring (for example, lead) and at a level which poses a risk of harm to directed first at the person who caused the contamination but if that person cannot be located or is unable to pay for the clean-up of the contamination, the owner of the land (or even the relevant local government) may be liable.

The acquisition, disposal and remediation of land which is or may be contaminated involves particular risk management issues and specific legal advice should be obtained to manage the risks.

Environmental protection

Each state and territory has enacted laws which aim to control pollution and regulate waste.

Most jurisdictions:

• require licences to be obtained before activities which are regarded as likely to cause pollution (such as mining or certain types of industry) may be carried out, and
• make it an offence to pollute land, air or water or to emit noise pollution unless this is authorised;
• impose notification obligations on land owners, occupiers or individuals in the event of an unauthorised release or other environmental incident.

The regulators in each state and territory are able to take a range of actions to enforce the pollution control legislation. The enforcement measures available to regulators range from the issuing of orders and civil penalties to criminal prosecutions which may result in heavy fines or even imprisonment.

As the laws regulating the environment vary between jurisdictions and have heavy penalties for breaches, it is necessary to obtain specific advice as to the licences required and the legislative requirements which must be met before carrying out any project which may result in pollution.