enviro alert 02- 2016cdn-au.mailsnd.com/98425/sb1bw8diaw25sjceo2lmk12ntl6g...enviro alert: 02-2016...

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1 This Environmental Alert is the copyright of Workplace Enviro Australia Pty Ltd. Other than for the purposes, and subject to the conditions prescribed under the Copyright Act 1968, you may not replicate, forward, copy or otherwise transmit this Environmental Alert to any other party, except pursuant to the following terms, without the prior written permission of Workplace Enviro Australia. Paid subscribers of Workplace Enviro Australia Pty Ltd who receive this Environmental Alert as part of their subscription may forward or copy this publication within their business or organisation only pursuant to the terms of their subscription. Under no circumstances should this Environmental Alert be distributed or copied to any person, or organisation, or any other entity, outside of the subscriber organisation. In This Alert… Legislative Changes and Proposed Legislative Changes… o SA – Changes Made to Radiation Protection Regulations o WA – Regulations to Replace Fees Imposed in Authorisations for Abrolhos Islands Voluntary Scheme Open for Comment… In Other News… o Cth – Resources for ERF Facilities Method o NSW – Company Fined for Failing to Protect Environmentally Sensitive Areas o Cth – June 2015 Quarterly Update of Australia's National Greenhouse Gas Inventory Released o NSW – Boral Fined $15,000 for Marulan Water Pollution Incident o NSW – EPA Fines Forestry Contractor for Multiple Breaches o NSW – New Amending LEPs o NSW – Forestry Corporation Penalised for Failing to Protect Threatened Species o WA – EPA Technical Guide o Cth – Australia’s Second Biennial Report Released o NSW – DPE Approves Increase to Ammonia Production Limits for Kooragang Island Facility o Vic – EPA Issues Parks Victoria With Pollution Abatement Notice o Cth – Guidance on the Newness Requirement to ERF Projects Under the Forest Regeneration Methods In The Courts… o $43,000 Fine After Building Four More Rooms Than Were Approved o Appeal Court Granted Consent to Modify – Development Consent Note: Web hyperlinks are reproduced in their full text throughout Workplace Enviro Australia’s Alerts. If you are reading an electronic copy of this Alert, you should be able to access the pages and documents by clicking the links (holding “control” and left mouse clicking is the usual way). However, some subscribers find that the links do not work effectively by simply clicking. If this is the case, simply highlight the link, copy it, and ‘paste’ it into your web browser. Enviro Alert: 02-2016 29 January 2016 WORKPLACE ENVIRO AUSTRALIA PTY LTD

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Page 1: Enviro Alert 02- 2016cdn-au.mailsnd.com/98425/sb1bw8dIaw25SJcEo2lMk12NtL6G...Enviro Alert: 02-2016 WORKPLACE ENVIRO AUSTRALIA PTY LTD 29 January 2016 2 Legislative Changes and Proposed

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This Environmental Alert is the copyright of Workplace Enviro Australia Pty Ltd. Other than for the purposes, and subject to the conditions prescribed under the Copyright Act 1968, you may not replicate, forward, copy or otherwise transmit this Environmental Alert to any other party, except pursuant to the following terms, without the prior written permission of Workplace Enviro Australia. Paid subscribers of Workplace Enviro Australia Pty Ltd who receive this Environmental Alert as part of their subscription may forward or copy this publication within their business or organisation only pursuant to the terms of their subscription. Under no circumstances should this Environmental Alert be distributed or copied to any person, or organisation, or any other entity, outside of the subscriber organisation.

In This Alert…

Legislative Changes and Proposed Legislative Changes…

o SA – Changes Made to Radiation Protection Regulations

o WA – Regulations to Replace Fees Imposed in Authorisations for Abrolhos Islands Voluntary Scheme

Open for Comment…

In Other News…

o Cth – Resources for ERF Facilities Method

o NSW – Company Fined for Failing to Protect Environmentally Sensitive Areas

o Cth – June 2015 Quarterly Update of Australia's National Greenhouse Gas Inventory Released

o NSW – Boral Fined $15,000 for Marulan Water Pollution Incident

o NSW – EPA Fines Forestry Contractor for Multiple Breaches

o NSW – New Amending LEPs

o NSW – Forestry Corporation Penalised for Failing to Protect Threatened Species

o WA – EPA Technical Guide

o Cth – Australia’s Second Biennial Report Released

o NSW – DPE Approves Increase to Ammonia Production Limits for Kooragang Island Facility

o Vic – EPA Issues Parks Victoria With Pollution Abatement Notice

o Cth – Guidance on the Newness Requirement to ERF Projects Under the Forest Regeneration Methods

In The Courts…

o $43,000 Fine After Building Four More Rooms Than Were Approved

o Appeal Court Granted Consent to Modify – Development Consent

Note: Web hyperlinks are reproduced in their full text throughout Workplace Enviro Australia’s Alerts. If you are reading an electronic copy of this Alert, you should be able to access the pages and documents by clicking the links (holding “control” and left mouse clicking is the usual way). However, some subscribers find that the links do not work effectively by simply clicking. If this is the case, simply highlight the link, copy it, and ‘paste’ it into your web browser.

Enviro Alert: 02-2016 29 January 2016 WORKPLACE ENVIRO AUSTRALIA PTY LTD

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Legislative Changes and Proposed Legislative Changes…

SA – Changes Made to Radiation Protection Regulations

Status: Change – in effect 21 Jan Relevance: SA Industries: Energy and resources; Radiation protection and control Keywords: Ionising radiation protection and control The SA Radiation Protection and Control (Ionising Radiation) Variation Regulations 2016 have amended the Radiation Protection and Control (Ionising Radiation) Regulations 2015. The amending Regulations repeal and substitute rule 70(3) to require lights and signs fitted to X-ray analysis apparatus to be red or amber in colour and fail safe or consist of two lights, each of which is on a separate circuit from the other. Rule 107 (Persons other than patient not to remain in room during fluoroscopic procedure or test procedure) is substituted and repealed to set out circumstances where a person, other than a patient, can remain in a room where any fluoroscopic procedure or test procedure is being carried

out.

Go back to ‘In this alert’

WA – Regulations to Replace Fees Imposed in Authorisations for Abrolhos Islands Voluntary Scheme

Status: Change – in effect 23 Jan Relevance: WA Industries: Fisheries Keywords: Abrolhos Islands Voluntary Scheme The WA Fisheries Adjustment Schemes Amendment Regulations 2016 have amended the Fisheries Adjustment Schemes Regulations 2009. The amending Regulations repeal and replace rules 4 and 5 in relation to fees imposed in

respect of each authorisation for the purposes of the Abrolhos Islands Voluntary Scheme. The amending Regulations also amend the definition of 'Abrolhos Islands Notice'. Go back to ‘In this alert’

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Open for Comment…

NSW –  Review of the Protection of the Environment Operations (Hunter River Salinity Trading Scheme) Regulation 2002

The NSW Environment Protection Authority (EPA) has completed the ten-year statutory review of the Protection of the Environment Operations (Hunter River Salinity Trading Scheme) Regulation 2002 (the Regulation).

To engage stakeholders in the review, the EPA published a comprehensive discussion paper for public consultation, which was informed by the Hunter Catchment Salinity Assessment. The EPA considered stakeholder submissions on the discussion paper in finalising the review

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and has now published a report with recommendations for improving the Regulation and the scheme generally. A draft Amendment Regulation has been prepared to implement the recommended changes from the review and the accompanying explanatory tables will assist you to understand the proposed changes. You are invited to have your say on the proposed changes by 19 February 2016. A draft Protection of the Environment Operations (Hunter River Salinity Trading Scheme) Amendment Regulation 2016 (the draft Amendment Regulation) will be on public exhibition from 18 January 2016 until 19 February 2016. These explanatory tables will assist you to understand the proposed changes. It shows how the amendments recommended through the review have been incorporated into the draft Amendment Regulation. The draft Amendment Regulation has been prepared to implement the recommended improvements to the Regulation outlined in the report on the review. This includes amendments to raise the flood flow thresholds from 4,000 to 5,000 megalitre per day in the upper sector; from 6000 to 15,000 ML/day in the middle sector; and from 10,000 to 25,000 ML/day in the lower sector, and a range of other minor amendments. The purpose of raising the flood flow threshold is to reduce the risk of simultaneous, full capacity discharges by scheme participants impacting on the Hunter River (i.e. breaching salinity targets) during flood flow conditions and to strengthen the integrity of the credit trading system. This issue is discussed in detail in the report on the review. For the Draft – Protection of the Environment Operations (Hunter River Salinity Trading Scheme) Amendment Regulation 2016, see: http://www.epa.nsw.gov.au/resources/licensing/hrsts/hrsts-draft-amend-reg-2016.pdf; and the related explanatory tables, see: http://www.epa.nsw.gov.au/resources/licensing/hrsts/150875-hrsts-tables.pdf You are invited to provide a submission or comment on the draft Amendment Regulation. Submissions close at 5pm on 19 February 2016.

Please provide your comments to the EPA:

By email Email your submission to: [email protected]

By phone 131 555

By mail Post your written submission to: HRSTS Regulation Review Reform and Compliance Branch Environment Protection Authority PO Box A290 Sydney South NSW 1232.

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NSW – Interim Report Released: Review into NSW EPA's Management of Contaminated Sites

On 10 September 2015 the NSW Environment Minister, Mr Mark Speakman, announced an independent review to be conducted by Professor Mark Taylor of Macquarie University, into the EPA’s implementation of the Auditor General’s recommendations to see whether there was further scope for improvement and to examine the EPA’s response to the Williamtown incident. The terms of reference for the review are:

Review the EPA’s implementation of the findings of the Auditor General’s report of 10 July 2014 into managing contaminated sites;

Make any recommendations deemed appropriate regarding the EPA’s management of contaminated sites;

Provide an interim report with any recommendations deemed appropriate regarding the EPA’s past management of the Williamtown RAAF base by 14 December 2015; and

Provide an interim report with any recommendations deemed appropriate regarding the EPA’s past and future management of perfluorooctanesulfonic acid/perfluorooctane sulfonate (PFOS/PFOA) contaminated sites, both known and unknown, by 29 February 2016.

The review will conclude with a final report to the Minister for the Environment on 29 April 2015.

You are invited to submit comments to the independent review by emailing:

[email protected].

For the December 2015 Interim report, see:

http://www.epa.nsw.gov.au/resources/epa/152670-taylor-interim-report.pdf

Tas –Consultation: Draft Action Plan

Embracing the Climate Challenge (the draft action plan) outlines the Tasmanian Government’s framework for action through to 2021 to deal with climate change. The purpose of the draft action plan is to seek public input on how to achieve the Tasmanian Government's aspiration for Tasmania to be:

The best in the world in responding to climate change; Renowned for our renewable energy expertise and our world class science and

research; Prepared to meet the challenges and seize the opportunities climate change

presents. Download a copy of the draft action plan at:

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http://www.dpac.tas.gov.au/__data/assets/pdf_file/0006/275343/Embracing_the_Climate_Challenge-Action_Plan.pdf The Tasmanian Government recognises the significant level of climate change expertise and interest in the Tasmanian community. To focus the written submission, please shape your response around the following four questions:

What practical actions should the Government prioritise over the next five years in the response to the issue of climate change?

What targets, both legislated and policy driven, should Tasmania adopt in pursuing the greenhouse gas abatement effort?

How can the natural advantages best be used to maximise Tasmania’s contribution in the effort to combat climate change?

What amendments or enhancements would you propose to the Climate Change (State Action) Act 2008 to ensure that Tasmania is responding effectively to the issue of climate change?

Submission should be forwarded to the Tasmanian Climate Change Office before 25 March 2016 by:

Email: [email protected] Mail: Tasmanian Climate Change Office, GPO Box 123, HOBART TAS 7001

Submissions in response to this draft action plan will be made publicly available on the Tasmanian Climate Change Office website unless you advise in writing that your submission is to be confidential. For further information please contact the Tasmanian Climate Change Office on 03 6232 7173. Cth – Australia’s Climate Policy Options

The Climate Change Authority released the second draft report of its Special Review on Australia’s climate goals and policies in November 2015. The Authority is encouraging a fresh conversation on which policies Australia should use to meet its climate targets. The draft report on Australia’s climate policy options is the second part of the Authority’s Special Review as requested by the Minister for the Environment. The Authority will look at the full range of policies, including the various types of emissions trading schemes. The draft report lays out how the Authority will evaluate the policy options, based on three key principles: cost effectiveness, environmental effectiveness and equity. The report also looks at how climate policy can affect international competitiveness. The Authority invites submissions from all interested Australians on the policies Australia should use to meet its emissions reduction targets. A broad and inclusive national conversation about the right tools is important so that Australia contributes to global efforts to avoid dangerous climate change.

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For the relevant documents, see:

Draft report: Australia’s climate policy options:

http://climatechangeauthority.gov.au/sites/prod.climatechangeauthority.gov.au/files/SpecialReport2/Options%20paper%20Final.docx

Data underlying the charts in the report excel:

http://climatechangeauthority.gov.au/sites/prod.climatechangeauthority.gov.au/files/files/Special%20review%20policy%20options/Options%20paper%20charts.xlsx

Chair’s statement:

http://climatechangeauthority.gov.au/sites/prod.climatechangeauthority.gov.au/files/files/Special%20review%20policy%20options/151130%20Chair%27s%20Statement.pdf

Transcript of media briefing by the Acting Chair:

http://climatechangeauthority.gov.au/sites/prod.climatechangeauthority.gov.au/files/151130%20Transcript%20from%20Media%20Briefing.docx

Comments on the Draft Report should be sent to the CCA by 19 February 2016.

Submitting via email:

[email protected]

Submitting via post: Submissions Climate Change Authority GPO Box 1944 Melbourne VIC 3001

Should you require further information about making a submission, please contact the Climate Change Authority on freecall 1800 475 869 or via email at: [email protected] Cth – Independent Review of the 2013 EPBC Act Amendment - Water Trigger Contents

Australia’s national environment law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), was amended in June 2013, to provide that water resources are a matter of national environmental significance, in relation to coal seam gas and large coal mining development. This is known as the ‘water trigger’.

The amendment, via the EPBC Amendment Act 2013, was introduced due to community concern, and came into effect on 22 June 2013. Under the amended EPBC Act, an action

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that involves a coal seam gas development or a large coal mining development now requires approval from the Australian Government Minister for the Environment (the Minister) if the action has, will have, or is likely to have a significant impact on a water resource.

Why is the water trigger legislation being reviewed?

The EPBC Amendment Act that established the water trigger requires an independent review of the operation of this legislation (see section 25) It is intended that the independent review will also serve as the post-implementation review, a requirement of the Australian Government Office of Best Practice Regulation OBPRwhen legislation is introduced without an accompanying Regulation Impact Statement which was the case for the water trigger.

Issues paper

An issues paper was released on 30 November 2015, and will close on 29 January 2016. The Issues Paper sets out the context of the review and major issues to assist you in preparing a submission to the review. It covers a range of issues on which the reviewer seeks information and feedback. For the Independent review of the 'water trigger' legislation: issues paper, see: http://environment.gov.au/system/files/consultations/11c6034d-fc8e-4f06-a703-e51a16dec95c/files/water-trigger-review-issues-paper.pdf How to make a submission to the Review

Public submissions are an important part of the Independent Review of the water trigger. Submissions are invited from individuals or parties who have an interest in the issues to be considered under the Terms of Reference. Submissions must be provided by 29 January 2016 to ensure the Reviewer has sufficient opportunity to consider the material. All those interested in this subject are encouraged to provide input via an online consultation, which is easy to use and enables you to easily print and keep a copy of your submission, and to keep up with the progress of the review.

For the Online submission form, see:

https://environment.au.citizenspace.com/environment-standard-division/wtreview

While you can send a written submission by email or post (see address below) using the online consultation is quick and simple and helps ensure your views cover key matters and can be easily taken into account in the Review Report.

For further information, or to send your submission, please contact:

Email: [email protected] Mailing address:

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Water Trigger Review GPO Box 787 Canberra ACT 2601 Australia

NT – Noonamah Ridge Estate Draft Environmental Impact Statement

Intrapac Projects Pty Ltd (Intrapac) is proposing to develop Noonamah Ridge Estate, which is located approximately 36 km south-east of Darwin, NT. The Project will involve the subdivision of the site to allow for approximately 4200 homes which will accommodate around 11 000 people. The project will include two rural activity areas and is expected to be completed over the course of 30 years. The Northern Territory Environment Protection Authority (NT EPA) decided on 7 April 2014 that the project requires assessment under the NT Environmental Assessment Act at the level of Environmental Impact Statement (EIS). The draft EIS is now available for public review and comment for a period of twelve weeks, from 28 November 2015 until 19 February 2016 To obtain a copy of the draft EIS, see: http://www.ntepa.nt.gov.au/__data/assets/pdf_file/0011/359993/draft_terms_reference_jemena.pdf. To make a submission, please visit: www.ntepa.gov.au/envirocomment. Cth – Shortlisted Sites for the Establishment of a Permanent National Radioactive Waste Management Facility

The Commonwealth has announced six sites that have been assessed as suitable for further assessment and public consultation. The Australian Government received 28 nominations from landholders across Australia including from Queensland, New South Wales, South Australia, the Northern Territory and Western Australia. Each site nomination has been subject to an objective and evidence based assessment against technical, economic, social and environment factors. Nominated Site Information To assist with consultation a Geoscience Australia Story Map has been constructed:

http://geoscience-au.maps.arcgis.com/apps/MapJournal/index.html?appid=0b38ebcbc66b4359bdd7496041e7fe24

The Story Map is an interactive map tool that will show you where each site is located, nearby communities, the size of the nominated land area and other detailed topographic information. As you scroll through the information on the map, you will also find details on the radioactive waste in Australia and the benefits of using radioactive materials. Sallys Flat - New South Wales 3165 Hill End Road, Hill End– street address 2641 Hill End Road, Hill End:

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http://www.radioactivewaste.gov.au/sites/prod.radioactivewaste.gov.au/files/Sallys%20Flat%20-%20Site%20Coordinates.docx

Hale - Northern Territory Lot 1933 Old South Road, Hale:

http://www.radioactivewaste.gov.au/sites/prod.radioactivewaste.gov.au/files/Hale%20-%20Site%20Coordinates.docx

Cortlinye - South Australia 2051 Buckleboo Hundred Line Road, Cortlinye:

http://www.radioactivewaste.gov.au/sites/prod.radioactivewaste.gov.au/files/Cortlinye%20-%20Site%20Coordinates.docx

Pinkawillinie - South Australia 762 Peella Road, Pinkawillinie:

http://www.radioactivewaste.gov.au/sites/prod.radioactivewaste.gov.au/files/Pinkawillinie%20-%20Site%20Coordinates.docx

Barndioota - South Australia Lot 30, Flinders Ranges Way, Barndioota: http://www.radioactivewaste.gov.au/sites/prod.radioactivewaste.gov.au/files/Barndioota%20-%20Site%20Coordinates.docx

Oman Ama - Queensland Cunningham Highway, Gore:

http://www.radioactivewaste.gov.au/sites/prod.radioactivewaste.gov.au/files/Oman%20Ama%20-%20Site%20Coordinates.docx The comment period closes AEST 5.00pm 11 March 2016.

How to lodge comments:

The Minister invites persons with a right or interest in the nominated land to provide comment on the proposed approvals. In addition the Minister is seeking the views of persons from the local communities where the six land nominations are located and other interested persons.

Electronic lodgement:

Comments can be lodged via email to: [email protected]

Postal lodgements should be sent to:

C/o The Department of Industry, Innovation and Science National Radioactive Waste Section GPO Box 1564 Vic – New Energy Efficiency Assessment Grants

Environment Minister Lisa Neville announced that applications have opened for a new round of Resource Assessment Grants to assist small and medium sized businesses to conduct an energy efficiency assessment by engaging a consultant.

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The resource assessment grants initiative provides funding for eligible businesses to review their activities and to identify and implement energy and materials efficiency improvements. Sustainability Victoria is offering grants to eligible business to cover 50% of the cost to engage a consultant to conduct a resource assessment of their operations. Grants are capped at $5,000 for an energy assessment and $10,000 for a materials or combined materials and energy assessment. A $3,000 implementation support bonus is available for businesses that can show evidence of implementing one or more recommendations from their assessment. An Information Session for Consultants will be held at Sustainability Victoria on Tuesday 1st December at 8:45 for a 9 am start. For details and to register to attend please complete the form at: http://forms.sustainability.vic.gov.au/sustainabilityvicgovau-a7n4a/pages/lwharo8eewa8sq0a8wcla.html Since 2012, more than 100 Victorian business resource assessments show average potential savings of 20% for energy, and 20 – 30% for materials identifying a range of measures to significantly reduce energy and materials. Findings include:

Average potential savings of over $130,000 from recommended materials efficiency initiatives, and over $95,000 from energy efficiency measures, and;

An average payback period of less than two years for materials efficiency recommendations, and three to four years for energy efficiency recommendations.

To find out about some of the outcomes and opportunities identified to significantly improve energy and materials efficiency view the case studies:

http://www.sustainability.vic.gov.au/services-and-advice/business/energy-and-materials-efficiency-for-business/case-studies A detailed resource assessment can provide scoping work that helps inform decisions to invest in energy or materials efficiency, with activities including options analyses, business case development, feasibility studies or scoping work. Refer to the following documents and FAQs for detailed information on resource assessments and how to apply for a grant.

If you have further queries regarding this program contact:

[email protected] and quote ‘Resource Assessment Grants 2015/16’ or phone 1300 363 744 and ask to speak to a grants support representative.

For energy assessments: 4.00 pm on Friday 12 February 2016. For materials assessments and for combined material and energy assessments: 4.00

pm on Friday 13 May 2016 For the application documents, see below:

Application Form and Guidelines:

http://www.sustainability.vic.gov.au/~/media/resources/documents/services%20and%20advice/business/resource%20assessment%20grants%202015/rags%20docs%2

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0november%202015/ra%20grants%20guidelines%20and%20application%20form%20nov%202015%20word.docx

Conducting a Resource Assessment:

http://www.sustainability.vic.gov.au/~/media/resources/documents/services%20and%20advice/business/resource%20assessment%20grants%202015/rags%20files%20oct%202015/conducting%20a%20resource%20assessment.pdf

Funding Terms and Conditions:

http://www.sustainability.vic.gov.au/~/media/resources/documents/services%20and%20advice/business/resource%20assessment%20grants%202015/funding%20terms%20and%20conditions%20aug%202015.pdf

Terms of Participation in Grant Program:

http://www.sustainability.vic.gov.au/~/media/resources/documents/services%20and%20advice/business/resource%20assessment%20grants%202015/rags%20files%20oct%202015/terms%20of%20participation%20in%20grant%20program.docx

Selecting a Resource Assessor:

http://www.sustainability.vic.gov.au/~/media/resources/documents/services%20and%20advice/business/resource%20assessment%20grants%202015/rags%20docs%20november%202015/ra%20grants%20selecting%20a%20resource%20assessor%20nov%202015%20word.docx

For Frequently asked questions, see:

http://www.sustainability.vic.gov.au/services-and-advice/business/energy-and-materials-efficiency-for-business/resource-assessments/faqs-resource-assessment-grants-2015

NSW – Proposed Coastal Management Reforms

The coastal management reform package seeks to support the NSW Government’s vision of thriving and resilient communities that live and work on a healthy coast, now and into the future. Coastal communities need a modern, integrated framework that is fit for purpose for our unique environmental, social and economic coastal values.

The public consultation package includes a draft Coastal Management Bill, an Explanation of Intended Effect for the proposed new Coastal Management State Environmental Planning Policy (SEPP), and key elements of a draft coastal management manual. Additional elements of the proposed new framework will be released later for public comment, including further components of the manual, maps of the coastal zone that will form part of the SEPP and proposals concerning the effects of coastal erosion on coastal boundaries. According to the overview, the proposed reforms aim to ‘better equip coastal communities to respond effectively to existing and emerging costal challenges and opportunities’. The Draft Bill aims to redefine the coast as four distinct areas of coastal wetlands and littoral rainforests, coastal vulnerability areas, coastal environment areas and coastal use areas to identify each area’s unique management requirements. The new SEPP is expected

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to help manage the legacy of existing coastal hazards and help plan to ensure new hazards are avoided. The Draft Manual provides guidance to local councils and clear, step-by-step instructions to support them to manage their coast using the proposed Coastal Management Act.

The public is invited to read the documents for consultation and provide feedback about the new approach:

Draft Coastal Management Bill 2015:

http://www.environment.nsw.gov.au/resources/coasts/coastal-management-bill-draft.pdf

Coastal Management State Environmental Planning Policy – Explanation of Intended Effect at:

http://www.environment.nsw.gov.au/resources/coasts/coastal-management-sepp.pdf

Draft Part A, Part B and Part C of the draft NSW Coastal Management Manual at: 

http://www.environment.nsw.gov.au/coasts/coastreforms-manual.htm Submit feedback by 29 February 2016 via email to:

[email protected] By online consultation form to: https://engage.environment.nsw.gov.au/our-future-on-the-coast-reform-of-the-coastal-management-framework-in-nsw Or post to:

Office of Environment and Heritage PO Box A290 Sydney South NSW 1232

Information sessions on the coastal management reforms will be held in coastal locations during late November and early December 2015. Details on the information sessions is available:

http://www.environment.nsw.gov.au/coasts/coastreforms-info.htm

WA – Guidance Statement: Regulation of Mine Dewatering

Peak industry bodies and industry participants have requested that consideration be given to reducing regulatory duplication, by enabling the process of dewatering to be regulated by a single agency. DoW regulates the extraction of water under the Rights in Water and Irrigation Act 1914 (RIWI Act) and DER regulates the discharge of dewater under the Environmental Protection Act 1986 (EP Act).

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Category 6 of the Environmental Protection Regulations 1987 (the Regulations) manages only the discharge of mine dewater. DER has 94 current EP Act licences that regulate discharge of mine dewater. The majority are located within the Pilbara and Goldfields regions. Of the 94 licences, 13 manage mine dewater only (9 within the Goldfields region), while 81 have been issued for multiple categories. Other types of mine site water, which are more likely to become, contaminated (e.g. process water or potentially contaminated stormwater) are managed under other licence categories. The taking / extraction of water from an aquifer to dewater a mine requires a licence under section 5C of the RIWI Act if the bore field is in a proclaimed groundwater area. The majority of the State’s mineral rich areas have been proclaimed, and include the highly EP Act licensed Pilbara and Goldfield regions. The Minister for Water is required to have regard to several matters in determining a licence application, including whether the proposed taking and use of water is ecologically sustainable or environmentally acceptable. The draft Guidance Statement was developed in consultation with DoW and is proposed to reduce the regulatory burden of mine dewatering. The draft Guidance Statement will apply to applications for works approvals and licences as well as to existing licensed prescribed premises. DoW is regarded as possessing strong technical expertise in hydrogeology, hydrology, assessing environmental water regimes for water dependent ecosystems, and water resource planning. Such expertise is highly relevant to the management of discharge of dewater to another water resource. Where dewatering discharge is being regulated by DoW in accordance with the Guidance Statement, DER will exercise its discretion in the public interest in relation to enforcement action for dewatering. The Guidance Statement intends to reduce regulatory duplication by enabling the process of dewatering to be regulated by a single agency. Licence holders that meet the criteria under the Guidance Statement to have dewatering discharge regulated by DoW, will be directly invited to voluntary choose to migrate to regulation under the RIWI Act. Operators holding licences with multiple categories would continue to require an EP Act licence if the mine dewater discharge category were removed. Subject to the successful migration of licence holders from regulation by DER under the EP Act, DER will look to remove or modify the prescribed categories to remove dewatering that meet the criteria under this Guidance Statement from regulation under the EP Act.

For the Draft Guidance Statement – Regulation of Mine Dewatering, see:

http://www.der.wa.gov.au/images/documents/our-work/consultation/gs-mine-dewatering-regulation/draft_GS_Regulation_of_Mine_Dewatering.pdf DER seeks your input on any aspect of the draft Guidance Statement: Regulation of Mine Dewatering. Your comments are requested by 5 February 2016. No late submissions will be accepted. Please direct comments or any questions about this paper:

By email: [email protected] with the words ‘GS Regulation of Mine Dewatering’ in the subject line.

By post:

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GS Regulation of Mine Dewatering Licensing and Approvals Department of Environment Regulation Locked Bag 33 CLOISTERS SQUARE WA 6850

Questions regarding this report should be directed to:

Department of Environment Regulation Locked Bag 33 Cloisters Square PERTH WA 6850 Phone: +61 8 6467 5000 Fax: +61 8 6467 5562 Email: [email protected] Web: www.der.wa.gov.au

WA – Guidance Statement: Environmental Siting

DER’s Guidance Statement: Regulatory Principles aims to provide the high-level foundation of good regulatory practice that guides DER’s environment regulatory functions. Environmental Standards and Guidance Statements form part of DER’s hierarchy of instruments governing environmental regulation. The draft Guidance Statement: Environmental Siting (draft Guidance Statement) has been developed to set out DER’s position of the siting of prescribed premises in relation to specified ecosystems and designated areas in relation to water. The Guidance Statement will inform the risk assessment used to support decision-making for works approvals and licences. DER acknowledges the contributions from:

Department of Water:

o Surface Water Proclamation Areas 2009:

http://www.water.wa.gov.au/__data/assets/pdf_file/0004/1669/86306.pdf

Department of Parks and Wildlife:

o Available wetland mapping in WA:

http://www.dpaw.wa.gov.au/images/documents/conservation-management/wetlands/wetland_mapping_datasets_publically_available-1.pdf

o Available marine parks and reserves mapping Western Australia:

http://www.dpaw.wa.gov.au/management/marine/marine-parks-and-reserves The Guidance Statement will apply to applications for works approvals and licences as well as to existing licensed prescribed premises. For existing licensed prescribed premises, the Guidance Statement will be applied as part of the risk assessment at the time of renewals and to inform inspections. This may result in amendments to licences to ensure that

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appropriate conditions have been set to address the risk of the activity. The Guidance Statement is part of DER’s risk-based decision-making, which will result in increased transparency and consistency for industry.

DER seeks your input on any aspect of the draft Guidance Statement: Environmental Siting. Feedback received during consultation is important to DER and will be considered in the finalisation of the Guidance Statement after the consultation period has ended. Responses must be received by 5 February 2016.

Please return comments:

By email: [email protected] with the words ‘GS Environmental Siting’ in the subject line.

By post to:

GS Environmental Siting Strategy and Reform Department of Environment Regulation Locked Bag 33 CLOISTERS SQUARE WA 6850

Go back to ‘In this alert’

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In Other News…

Cth – Resources for ERF Facilities Method

The Commonwealth Clean Energy Regulator (CER) has made available the following documents relating to the Carbon Credits (Carbon Farming Initiative – Facilities) Methodology Determination 2015 (the Facilities Method):

Facility and project details reporting template, which aims to assist applications to provide relevant and detailed information to support their application for an Emissions Reduction Fund (ERF) project under the Facilities Method. For further information, see:

http://www.cleanenergyregulator.gov.au/DocumentAssets/Pages/Facility-and-project-details-template.aspx

Facilities method equation tree, which provides a ‘basic overview of the equations required to determine project abatement for a facilities method project’. For further information, see:

http://www.cleanenergyregulator.gov.au/DocumentAssets/Pages/Facilities-method-equation-tree.aspx

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Guidance on completing an Emissions Reduction Fund Project Application - for the Facilities Method, which provides information on answering parts 3 and 4 of the ERF Project Application in relation to the Facilities Method. For further information, see:

http://www.cleanenergyregulator.gov.au/DocumentAssets/Pages/Facilities-method-form-guidance.aspx

Go back to ‘In this alert’

NSW – Company Fined for Failing to Protect Environmentally Sensitive Areas

The NSW Department of Planning and Environment fined Leda Manorstead the maximum possible fine for failing to protect environmentally sensitive areas as required by its conditions of approval.

The company was required to fence environmentally sensitive areas during earthwork activities to protect them from any work associated with construction of Cobaki Estate. A Department led whole of Government site inspection on 02 November 2015 confirmed that fencing of the site had not occurred, resulting in construction activities such as earthworks into the areas that were required to be protected. A spokesperson for the Department said that the breach was assessed as having a high impact.

The company is now required to pay a $15,000 fine, construct the fence and remediate the affected areas. The issuing of this fine should serve as a deterrent to all companies in the State-encouraging them to adhere to their conditions of approval or face the consequences.

In August last year, the NSW Government introduced five-fold increases in penalties for companies that breach conditions. This has given NSW the toughest penalties in the country for planning offences. Companies can also be prosecuted in court for breaching conditions, with the most severe breaches attracting fines of up to $5 million. The Department has doubled the number of compliance officers in the field across NSW to monitor and enforce the conditions placed on developments of state significance such as

residential developments.

In November 2015, the Department’s Compliance Officers undertook 23 inspections across the Tweed and Ballina LGAs as part of an increased presence campaign in the North of the State.

You can access more information about the compliance team at: www.planning.nsw.gov.au/Compliance. Go back to ‘In this alert’

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Cth – June 2015 Quarterly Update of Australia's National Greenhouse Gas Inventory Released

The Quarterly Update of Australia’s National Greenhouse Gas Inventory provides estimates of Australia’s national inventory up to the June quarter of 2015.

Australia’s National Greenhouse Accounts are made up of a series of comprehensive reports and databases that estimate, and account for, Australia’s greenhouse gas emissions. These

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publications fulfil Australia’s international and domestic reporting requirements. The ‘Quarterly Update’ is a publication series that reports on the latest estimates of Australia’s national greenhouse gas inventory.

Australia’s annual emissions for 2014-15 are estimated to be 549.3 Mt CO2-e. This figure is the second lowest emissions level since, and 1.9% below, 2000 levels (560.2 Mt CO2-e) and 10.2% below 2005 levels (611.4 Mt CO2-e). Emissions per capita and the emissions intensity of the economy, including the land sector, were both at their lowest levels in 25 years in 2014-15. Emissions per capita have fallen 28.4% since 1990, while the emissions intensity of the economy has fallen 53.2% since 1990.

This bar chart compares Australia's annual emissions estimates for 2014-15 from the Projections Report March 2015 with the June 2015 Quarterly Update estimates. Emissions in megatonnes of carbon dioxide equivalent are plotted along the y-axis in increments of 20. The comparison demonstrates that the estimates in the more recently published June 2015 Quarterly Update are 16.3 megatonnes of carbon dioxide equivalent lower than the estimates published in March 2015 in the Projections report.

When the Quarterly Update’s estimates are compared to the projected emission levels published in Australia’s Emissions Projections 2014-15, actual annual emissions for 2014-15 were 16.3 Mt CO2-e or 2.9% lower than projected emissions levels. On a sectoral basis, actual emissions were lower than projected emissions levels in all sectors.

Over the year to June 2015 annual emissions including LULUCF increased 1.3% compared to the previous year. For the June quarter 2015, national emissions excluding emissions from LULUCF decreased by 0.3% in trend terms, and increased 0.1% cent relative to the previous quarter on a seasonally adjusted and weather normalised basis.

For the Quarterly Update of Australia’s National Greenhouse Gas Inventory: June 2015, see:

http://www.environment.gov.au/system/files/resources/cb14abbb-3a4b-406f-a22d-86f565674c3e/files/nggi-quarterly-update-jun-2015.pdf

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NSW – Boral Fined $15,000 for Marulan Water Pollution Incident

The NSW Environment Protection Authority (EPA) issued a $15,000 penalty notice to Boral Resources (NSW) for a water pollution incident at its Peppertree Quarry in Marulan on 26 August 2015. Boral notified the EPA of the incident when it became aware a portion of a stockpile of fine aggregate had slumped during heavy rain on 26 August 2015. Some of the fine aggregate material entered Tangarang Creek causing a temporary increase in turbidity and sediment load in the Creek. EPA South East Region Manager Nigel Sargent considered that Boral has a responsibility under its Environment Protection Licence conditions to deal with quarried materials at the site in a proper and efficient manner:

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Boral failed to do this, which has led to a water pollution incident. The EPA does not believe there was any long term environmental harm, but the increased turbidity and sediment load from the incident has the potential to smother aquatic organisms and their habitat. Boral took immediate clean-up actions after the incident and is currently completing longer term environmental rehabilitation such as bank stabilisation in Tangarang Creek.

Tangarang Creek flows into the Shoalhaven River within Morton National Park.

. Go back to ‘In this alert’

NSW – EPA Fines Forestry Contractor for Multiple Breaches

The NSW Environment Protection Authority issued a harvesting contractor two penalty notices totalling $6,600 for logging offences on private property in the state’s north. Between 19 October and 25 November 2015 the contractor harvested trees on two properties in Hogarth Range, in northern NSW. The EPA has issued one penalty notice for conducting forestry operations in riparian exclusion zones, and another for operations conducted on property not covered by a current Private Native Forestry Property Vegetation Plan (PNF PVP). The PNF Code of Practice prohibits clearing in riparian areas to prevent water pollution and to protect biodiversity. It is also considered as an offence to conduct private native forestry without an approved PNF PVP. EPA Principal Forestry Manager Michael Hood said:

These are significant offences. Senior EPA officers made considerable efforts to advise the contractor of the requirements of the PNF Code and the laws around PNF PVPs. It appears the contractor ignored this advice and broke the laws on more than

one occasion. These laws are important as they protect the environment and timber resources for the future. Ignoring these laws harms the environment. The EPA will monitor this contractor closely to ensure they comply with forestry regulations in future.

Penalty notices are one of a number of tools the EPA can use to achieve environmental compliance, including formal warnings, licence conditions, notices and directions, mandatory audits, enforceable undertakings, legally binding pollution reduction programs and prosecutions. Go back to ‘In this alert’

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NSW – New Amending LEPs

The following amending local environmental plans (LEPs) have been made under the Environmental Planning and Assessment Act 1979:

Clarence Valley Local Environmental Plan (2011) (Amendment No 23) 2016 Fairfield Local Environmental Plan (2013) (Amendment No 11) 2016

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Gosford Local Environmental Plan (2014) (Amendment No 21) 2016 Gosford Local Environmental Plan (2014) (Amendment No 22) 2016 Manly Local Environmental Plan (2013) (Amendment No 10) 2016 Marrickville Local Environmental Plan (2011) (Amendment No 5) 2016 Mid-Western Regional Local Environmental Plan (2012) (Amendment No 12) 2016 North Sydney Local Environmental Plan (2013) (Amendment No 13) 2016 Shoalhaven Local Environmental Plan (2014) (Amendment No 9) 2016 Upper Hunter Local Environmental Plan (2013) (Amendment No 3) 2016

The LEPs commenced on 15 January 2016.

NSW – Forestry Corporation Penalised for Failing to Protect Threatened Species

The NSW Environment Protection Authority has issued two penalty notices to Forestry Corporation of NSW (FCNSW) for harming a threatened species during harvesting operations in northern NSW last year. In March 2015 the EPA received a report from a local environment group alleging that FCNSW had damaged a number of threatened onion cedar trees, during the construction of a snig (haulage) track in Cherry Tree State Forest, near Casino. The EPA carried out an investigation, which found that FCNSW had failed to identify the plants during surveys and assessments in both a rainforest area and an adjacent harvest area. As they were not identified, the individual plants were not protected during the construction of the snig track and a total of eight onion cedar trees were harmed. Under the conditions of its Threatened Species Licence, FCNSW is required to survey and assess the impacts of harvesting activities on threatened species when proposing to construct a snig track through rainforest. EPA Chief Environmental Regulator, Mark Gifford advised that if any threatened species are identified, approval must be sought from the EPA before construction. FCNSW is also required to thoroughly search the harvesting area for

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threatened plants prior to undertaking forestry activities. FCNSW has a responsibility to comply with the conditions of its licence and threated species legislation, to protect threatened species and their habitat from activities associated with timber harvesting. FCNSW was fined $1,000 for each of the two offences. This is the maximum penalty available to the EPA under current legislation. The EPA has a number of tools available in order to achieve environmental compliance. For more information see the EPA’s Compliance Policy:

\http://www.epa.nsw.gov.au/legislation/130251epacompl.htm

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WA – EPA Technical Guide

The WA Environmental Protection Authority WA (EPA WA) made available Technical Guide – Flora and Vegetation Surveys for Environmental Impact Assessment.

This new technical guide provides information on adequate survey techniques and standards for the EPA’s environmental factor of flora and vegetation. It defines data collection techniques and standards for EIA including survey preparation, design, data analysis and reporting.

A draft Environmental Assessment Guideline for the EPA’s Flora and Vegetation factor (currently EPA Guidance Statement No 51) will be released for public comment in 2016. An education/training program will be rolled out, initially offered to the Environmental Consultants' Association. Any other training will be provided as requested.

See the new Technical Guide – Flora and Vegetation Surveys for Environmental Impact Assessment at:

http://www.epa.wa.gov.au/Policies_guidelines/reports/Pages/TechnicalGuide-FloraandVegetationSurveys-EIA.aspx Go back to ‘In this alert’

Cth – Australia's Second Biennial Report Released

The Department of the Environment (DoE) has made available Australia’s Second Biennial Report (December 2015), which provides a comprehensive overview of Australia’s progress towards meeting its commitments under the United Nations Framework Convention on Climate Change.

Australia’s second Biennial Report is a comprehensive summary of Australia’s progress towards meeting its commitments under the United National Framework Convention on Climate Change (UNFCCC). Countries such as Australia are required to submit these reports to the UNFCCC every two years.

Australia’s second Biennial report is available at:

http://www.environment.gov.au/system/files/resources/aa9c4314-8971-4592-a23f-953a69c024f1/files/australias-second-biennial-report.pdf

This report contains Australian data in a number of detailed tables. Data from other countries is available on the UNFCCC’s Biennial Reports Data Interface application at: http://www4.unfccc.int/sites/br-di/Pages/Home.aspx Go back to ‘In this alert’

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NSW – DPE Approves Increase to Ammonia Production Limits for Kooragang Island Facility

The NSW Department of Planning and Environment has approved an application to increase limits on the amount of ammonia produced at Orica’s Ammonium Nitrate Facility on Kooragang Island.

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The application sought to increase the annual production limit of ammonia by around 7% from 360,000 to 385,000. Production rates of nitric acid and ammonium nitrate will remain unchanged. The proposal was put on exhibition for feedback in June 2015 and received four submissions from the City of Newcastle Council, the Environment Protection Authority, WorkCover NSW and the Roads and Maritime Services. No public submissions were received. The key issues raised in submissions related to hazards, risks, noise and air quality. The Department has assessed the project and has approved the project subject to conditions including ensuring hazard studies are conducted at each stage of the project. More information can be found at: www.majorprojects.planning.nsw.gov.au. Go back to ‘In this alert’

Vic – EPA Issues Parks Victoria With Pollution Abatement Notice

Environment Protection Authority Victoria has issued Parks Victoria with a pollution abatement notice that requires it to cease cleaning activities at a wash bay in Warrandyte State Park.

EPA Executive Director Damian Wells advised that the notice had been issued following an inspection that found wastewater management practices at the site had the potential to harm the environment. Mr Wells noted that the notice reflects the fact that Parks Victoria has already stopped the practices and provides the appropriate statutory oversights.

During the inspection EPA officers took soil samples near the wash bay and water samples from the Yarra River to determine if any impacts on the environment were occurring. The results of these samples indicate minor herbicide contamination of soil near the wash bay and no current contamination of the Yarra River from these herbicides.

Parks Victoria had advised EPA that it had adopted new practices to prevent waste material leaving the site and that these practices were being reviewed during EPA’s investigation to ensure compliance with the Environment Protection Act 1970. Mr Wells said if during the

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investigation any breaches of the Environment Protection Act 1970 are identified, they would be assessed against EPA’s Compliance and Enforcement Policy which considers environmental harm and culpability of the offence.

While the samples showed minor sediment contamination, the notice was issued to reassure the community that harm to the environment was not occurring and wastewater management practices at the site had been remedied. Mr Wells said that Parks Victoria would also be required to complete an independent assessment of environmental impacts from the wash bay facility.

EPA’s expectation is that all duty holders prevent wastewater discharge to the environment unless licensed to do so.

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Cth –  Guidance on the Newness Requirement to ERF Projects Under the Forest Regeneration Methods

The Commonwealth Clean Energy Regulator (CER) made available revised guidance relating to the application of the newness requirement to projects under the Carbon Credits (Carbon Farming Initiative) (Human-Induced Regeneration of a Permanent Even-Aged Native Forest - 1.1) Methodology Determination 2013 and the Carbon Credits (Carbon Farming Initiative) (Native Forest from Managed Regrowth) Methodology Determination 2013 (the Forest Regeneration Methods).

The facilities method seeks to provide a high-level, activity-neutral framework to calculate abatement from facilities that report under the National Greenhouse and Energy Reporting (NGER) scheme. This method can only be used by facilities that have submitted NGER reports. Projects established using the facilities method may include one or more of the following activities:

Replacing or modifying boilers; Improving control systems and processes; Waste heat capture and re-use; Upgrading turbines; Improving the efficiency of crushing or grinding equipment; Replacing low efficiency motors, fans and pumps with high efficiency versions; Installing variable speed drives; Improving compressed air processes; Reducing industrial process emissions; Behavioural changes;

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Installing low emissions-intensity electricity generation equipment, and; Fuel switching.

To register a project using the facilities method you must include a statement of activity intent. The statement of activity intent provides information that project abatement activities, identified at the time that the statement is made, would not have been implemented at the facility if it was not being undertaken as an Emissions Reduction Fund project. A statement should be provided for each facility covered by the project.

The statement can be signed by the Chief Financial Officer or another officer of the person who has the operational control over the facility. If the statement is signed by an officer other than the Chief Financial Officer at the time the project application is received, emissions reductions for the facility will be capped at 100,000 tonnes of carbon dioxide equivalent (tCO2-e) for the year.

A statement of activity intent signed by the Chief Financial Officer can also be provided after project registration. This would occur where an officer other than the Chief Financial Officer signed the statement but the facility would like to have the abatement limit of 100,000 tCO2-e removed.

The facilities method has a seven-year crediting period.

For the revised guidance, see:

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http://www.cleanenergyregulator.gov.au/ERF/Pages/Forms%20and%20resources/Regulatory%20Guidance/Sequestration%20guidance/Applying-the-newness-requirement-to-projects-under-forest-regeneration-methods.aspx Go back to ‘In this alert’

In the Courts…

$43,000 Fine After Building Four More Rooms Than Were Approved

Burwood Council v Doueihi Land and Environment Court NSW November 2013 Extract from Judgment and commentary – The link to Transcript can be found at the end of summary

Mr Doueihi pleaded guilty to one offence committed contrary to section 125(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). The charge related to Mr Doueihi’s failure to comply from 8 June 2012 to 24 October 2012 with a development consent granted by Burwood council for a certain number of additional boarding house rooms, contrary to section 76A(1) of the EPA Act. Mr Doueihi built four more rooms than were approved. Mr Doueihi is the Deputy Mayor of Burwood Council, and was elected as a Councillor on Burwood Council in September 2012. Prior to that time he served as a Councillor between 1995 and 2000.

The Court was asked to consider the appropriate sentence for Mr Doueihi for carrying out development without development consent.

It was found that the offence was of moderate objective seriousness. Objective circumstances that were considered included the nature of the offence within the statutory

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scheme, the maximum penalty and the objective harmfulness in that environmental harm was caused. Mr Doueihi’s state of mind was considered in assessing the objective gravity of the offence, which was held as deliberate but not calculated to mislead. Given the positions held by Mr Doueihi in the past and after September 2012 as a councillor elected to the prosecuting council, Mr Doueihi would have or ought to have known the gravity of his actions and that his actions were not legal. Committing the offence for financial gain was considered an aggravating factor. An abuse of position or trust as an aggravating factor was not made out. General deterrence was relevant whilst specific deterrence was not. By admitting the offence Mr Doueihi had admitted that he acted deliberately. Deliberate contraventions of the EPA Act should, according to the Court, be denounced.

Subjective circumstances that were considered to be relevant were the early guilty plea whilst contrition and remorse were not demonstrated beyond the early guilty plea alone. Mr Doueihi was of good character. Mr Doueihi was convicted of the offence as charged, fined the sum of $43,000 and to pay the council’s costs.

The Full Transcript of the Court’s Judgment can be found at:

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWLEC/2013/196.html?stem=0&synonyms=0&query=title(

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Appeal Court Granted Consent to Modify – Development Consent

Australian Leisure & Hospitality Group Pty Ltd v Manly Council (No 5) Land and Environment Court NSW March 2012 Extract from Judgment and commentary – The link to Transcript can be found at the end of summary

Australian Leisure and Hospitality Group Pty Ltd (ALH) owned and operated the New Brighton Hotel in Manly. ALH proposed to use part of the footways of the public roads of The Corso and Sydney Road adjacent to the facades of the hotel as an outdoor eating area for the hotel’s restaurant. Use of the  footways as outdoor eating areas was approved as part of a development consent granted by the Court in 2005, however, because the eating area would be on public roads, approval was also required under section 125 of the Roads Act 1993. The Council, as the relevant roads authority, refused a number of ALH’s applications for approval under section 125 of the Roads Act. ALH then applied to the council under section 96AA(1) of the Environmental Planning and Assessment Act (the EPA Act) to modify the 2005 development consent to substitute a new plan for the outdoor eating area. On this appeal against the council’s deemed refusal of ALH’s section 96AA modification application, ALH sought for the Court not only to approve ALH’s amended section 96AA application to modify the development consent to change the number and location of chairs on Sydney Road and The Corso, but also, pursuant to section 39(2) of the Land and

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Environment Court Act 1979, to exercise the council’s function under section 125 of the Roads Act to approve the use of all of the tables and chairs comprising the outdoor eating area on the footways of Sydney Road and The Corso. The Appeal Court found that the additional tables and chairs at the western end of the outdoor eating area would not cause conflict with pedestrians using Sydney Road, including on market days because Manly Market Place proposed to ensure a 3.1 metre-wide passageway between the hotel's outdoor eating area and the market tables. During market days, this passageway would be adequate for emergency vehicular access while on other days even more room would be available for access. It was found that the incremental increase in usage of the outdoor eating area on Sydney Road would not cause any discernable increase in waste or noise or any decrease in amenity. The proposed modification was not inconsistent with the aims and objectives of the Manly Local Environmental Plan 1988 or the Manly Development Control Plan for the Business Zone 1989. The Manly Town Centre Urban Design Guidelines 2002 for Sydney Road provided that furniture, lighting and planting should be concentrated along the footpath alignment. The Court was satisfied that the hotel’s proposed modification of the development consent to change the number and location of the tables and chairs along Sydney Road and The Corso was appropriate and ought to be approved. It was appropriate to grant approval under s 125 of the Roads Act to use that part of ALH’s eating area along part of Sydney Road for the purposes of a restaurant for a period of 12 months.

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The Manly Town Centre Urban Design Guidelines 2002 and the (Amendment 1) Master Plan required furniture, lighting and planting to be concentrated along the central axis of The Corso. The council had carried out redevelopment of The Corso consistent with its Urban Design Guidelines and the Master Plan, including in its determinations of applications under section 125 of the Roads Act for outdoor eating areas in The Corso and approval under section 125 of the Roads Act should not be granted to use the beneath-awning footway of The Corso adjacent to the hotel for ALH’s outdoor eating area, as to do so would be inconsistent with the council’s planned and implemented approach to the use of The Corso. The Appeal Court upheld the appeal, granted consent to modify the development consent, and approved under the Roads Act only that part of the hotel’s outdoor eating area on the footway of Sydney Road. The Full Transcript of the Court’s Judgment can be found at:

https://www.caselaw.nsw.gov.au/decision/54a636e43004de94513d9620

Yours Faithfully,

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