Expertise Archives:

Procedural fairness in enforcement matters: Defendant’s understanding

Defendant’s right to procedural fairness Unless stated otherwise in legislation, Defendants have a right to procedural fairness in administrative decision-making and Court proceedings. Procedural fairness is founded on the notion of a fair trial and it necessarily requires concepts such as access to information, public accountability and independent and impartial decision-makers. Procedural fairness is fundamental …

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Securing lawful uses: navigating existing use rights in changing planning schemes

When planning schemes are amended or a new scheme is introduced, ‘existing use rights’ protect the existing lawful use of premises from the regulatory impacts of such changes.  This article provides a refresher on existing lawful use rights and discusses the recent Planning and Environment Court decision in Jephcott v Noosa Shire Council.[1] A Lawful, …

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Queensland District Court rules on a narrow definition of waste

A material that is re-purposed tells against a conclusion that the material is a ‘waste’ as defined in the Queensland legislation. The Queensland District Court recently decided the following things were not a waste: The District Court considered whether a material is a waste will depend on the state of mind of the person selling …

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Court gives (parking) credit where credit is due

Background on case At 277-293 Bong Bong Street, in the main street of the picturesque township of Bowral, is a largely vacant block which was once home to the Highlands Arcade. In 2021 an unexpected fire razed the building, necessitating demolition of most of the structures on the site. In July 2022 the owner of …

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Queensland’s affordable housing approval pathway is ready to go

Affordable housing and State Facilitated Development are now articulated in legislation by specific criteria, opening up a new approvals pathway intended to address the housing crisis. The Planning and Other Legislation Amendment Regulation 2024 (Qld) (Regulation) came into effect on 22 July 2024. The commencement of the Regulation is the final step in the current suite …

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From clean-up to compliance – new amendments to the contaminated land provisions

In our series covering recent amendments to the Environmental Protection (Powers and Penalties) and Other Legislation Amendment Act 2024 (Powers and Penalties Act) and the Environmental Protection and Other Legislation Amendment Act 2023 (Qld) (EPOLA Act), we explore the updates to the contaminated land provisions below. Contaminated Land The management of contaminated land continues to …

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Introducing the Environmental Enforcement Order: A new compliance tool

As part of our series on the recent changes introduced by the Environmental Protection (Power and Penalties) and Other Legislation Amendment Act 2024 (Powers and Penalties Act), we highlight the addition of a new ‘enforcement tool’: an Environmental Enforcement Order. Environmental Enforcement Order An Environmental Enforcement Order (EEO) is a new compliance tool which aims …

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Changes to the forced EA amendment process

As outlined in our recent article ‘Environmental protections strengthened with new Powers and Penalties Bill‘, the Environmental Protection (Powers and Penalties) and Other Legislation Amendment Act 2024 (Powers and Penalties Act) introduces significant changes to the Environmental Protection Act 1994 (Qld) (EP Act). Notice of proposed amendments (NOPA) process The Powers and Penalties Act amends …

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Environmental protections strengthened with new Powers and Penalties Bill

On 11 June 2024, the Environmental Protection (Powers and Penalties) and Other Legislation Amendment Bill 2024 was passed (Powers and Penalties Bill).  The changes in the Powers and Penalties Bill arise from the recommendations of the Jones Review published in 2022.  As the name suggests, the amendments seek to change the powers and penalties provisions …

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NSW Government’s overhaul of development cost calculation and planning policies

Changes to the calculation of development costs commenced on 4 March 2024, with the NSW Government implementing the ‘estimated development cost’ (EDC)[1] for proposed development. The EDC will replace ‘cost of development’ and ‘capital investment value’ to estimate proposed development costs. In addition, State Environmental Planning Policy (SEPP) amendments will ensure planning instruments’ consistency by …

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Reforms set to ‘fast track’ development of residential flat buildings, terraces, townhouses, and duplexes

Background The Department of Planning is introducing new reforms which will allow residential flat buildings, terraces, townhouses, and duplexes in zones where they have historically not been permitted. Minister for Planning and Public Spaces, Paul Scully, has indicated that these reforms are modelled on suburbs including Wollstonecraft, Waverton, and Erskineville, “where terraces sit side-by-side duplexes, …

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Amendments to clause 4.6 of the Standard Instrument now active

On 1 November 2023 amendments to clause 4.6 of the Standard Instrument Local Environmental Plan (Standard Instrument) Order commenced. The amendments affect development applications lodged after this date that seek to vary any development standard(s) that apply to the development in question under the applicable Local Environmental Plan (LEP). This article offers a comprehensive overview …

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New offences and proactive approaches – what to expect from the new Environmental Protection Bill

On 13 February 2024, the Environmental Protection (Powers and Penalties) and Other Legislation Amendment Bill 2024 (Powers and Penalties Bill) was introduced to further enhance the powers and penalties provisions of the Environmental Protection Act 1994 (Qld) following on from the Jones review. In previous articles, we have discussed the Jones Review and its impact …

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The crackdown on land clearing: Chief Executive of the Office of Environment and Heritage v Turnbull [2023] NSWLEC 137

Under some legislation in New South Wales, a prosecuting authority is entitled to fulfil roles as both a plaintiff in civil enforcement proceedings, and a prosecutor in criminal proceedings. The general approach is that a prosecuting authority will choose one or the other. This was the approach taken by the Chief Executive, Office of Environment …

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Costs of being guilty until proven innocent under environmental legislation

The recent case of Secretary, Department of Planning, Industry and Environment v Merrywinebone Pty Ltd; Harris [2023] NSWLEC 138 has reiterated the costly consequences of the deeming provisions for landholders under the Biodiversity Conservation Act 2016 (BC Act). In that case the Defendants, Harris and Merrywinebone sought that the Secretary, Department of Planning, Industry and …

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Housing Availability and Affordability Bill – The State led development charge

The Queensland Government has introduced the Housing Availability and Affordability (Planning and Other Legislation Amendment) Bill 2023 (Qld) (Bill) to improve the planning framework’s response to housing supply challenges. It includes a raft of measures intended to cut barriers and get more affordable and diverse homes off the ground without delay. Some of the key …

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New offences for general environmental duty and duty to restore

In this article series, we focus on some of the key changes arising from the Jones Review, the Environmental Protection and Other Legislation Amendment Act 2023 (Qld) (EPOLA Act), and ongoing discussion in relation to environmental law reform. General environmental duty – the current state of play The Environmental Protection Act 1994 (Qld) (EP Act) …

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Reform to Queensland’s environmental enforcement laws – Jones Review and EPOLA Act

Background of the Jones Review In April 2022, an independent review into the adequacy of existing powers and penalties under the Environmental Protection Act 1994 (Qld) (EP Act) was commissioned, with the inquiry directed towards the adequacy of existing legislative powers for ensuring environmental performance, and providing for penalties if environmental laws and duties are …

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New mandatory data breach notification laws for NSW local governments

On 28 November 2023, reforms enacted last year to the Privacy and Personal Information Protection Act 1998 (NSW) (PPIPA) will come into effect. These reforms introduce a Mandatory Notification of Data Breach Scheme (MNDB Scheme) that applies to all NSW government agencies – including universities, local governments and state-owned corporations.   The MNDB Scheme replaces …

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Zombie Development Applications

“Zombie DAs” are development applications that have been approved historically and are seemingly brought back to life, in other words relied and acted upon, many years after they were granted. This can become a cause for concern where developments that no longer adhere to contemporary environmental and planning controls, standards or strategic objectives are permitted …

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New Housing and Productivity Contributions Scheme

On 13 July 2023 assent was given to the Environmental Planning and Assessment Amendment (Housing and Productivity Contributions) Bill 2023 (NSW) following its passing on 28 June 2023. The Bill amends the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to provide for housing and productivity contributions. This article provides an overview of the …

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Safeguard Mechanism Reforms: what you need to know in the race to net-zero

Against the backdrop of a decarbonising global economy and as part of Australia’s commitment to the Paris Agreement (now enshrined in Commonwealth legislation), the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Reforms) Rules 2023,[1] are set to come into force on 1 July 2023. These reforms have been designed by the Federal Government to …

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Response to the NSW Flood Inquiry – What Next?

In August 2022 the report of an independent NSW Flood Inquiry (Inquiry) was released. The Report makes a number of recommendations concerning flood preparation in land use planning, management and building standards for existing and future developments. The Inquiry was launched following the catastrophic flood events that occurred in early 2022. The recommendations followed findings …

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Proposed reduction in biodiversity offset areas fails to satisfy jurisdictional prerequisites to granting of approval

In the recent decision of Gunlake Quarries Pty Ltd v Minister for Planning [2022] NSWLEC 1570, the Land and Environment Court dismissed the appeal commenced by Gunlake Quarries Pty Ltd (Gunlake) concerning the proposed modification of its development consent which sought approval to reduce the minimum size of the Biodiversity Area required to be offset. …

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