LWZ 112 - Take Home Exam

1 Take Home Exam – LWZ112 - Filotti – S197021

LWZ 112 Take home exam

I SECTION A – COMPULSORY QUESTION

A Need of Approvals (Question 1)

Approvals for developments are required under Commonwealth legislation for any development that has the potential to inflict or cause harm on the environment. Section 67 of the Environment Protection and Biodiversity Conservation Act (Cth) (EPBC) clearly states that a person may not take what it could be considered a controlled action without the relevant approvals.1The above section further refers to Part 9 of the same act which deals with the requisites of the approvals.2

The contemplated requirements will be discussed in relation to each fact presented by the description that applies to Northern Territory and Commonwealth jurisdiction.

1 Approvals Suggested in the Case of a Crop Production

The issue is whether or not PI Jones will require any approvals for his development before he proceeds with developing the land that he owns to into a crop production.

(a) Zoning and Commercial Agricultural Development

As mentioned above approvals are required if the action proposed by PI Jones can potentially be considered a controlled action.3

The issue is whether or not the zoning of the land will require any approvals from the Minister.

Part 2A of the Planning Act (NT) defines a concurrent application as any application for the development of land that pertains to a planning scheme that regulates it.4Further, s 30B of the same act allows the owner of the land to submit a proposal for assessment to the Minister after the plan adviser has been consulted.5 In accordance with NT statutory provisions the decision of the minister and consequent approvals required must take in consideration the Territory’s planning scheme.6 The requirement of approval is also provided by statutory provisions in s 4 of the Environment Assessment Act. Act which has the declared function to oversee that any developments in the Territory are made in accordance with the goals promoted by the NT EPA for a sustainable environment.7

The land discussed is partly zoned Conservation. The assumption is made that the investor, if deciding to develop a commercial agricultural land, will be using synthetic substances to stimulate the existing soil. Therefore under s 390E of the EPBC, the Commonwealth or State

1 Environment Protection and Biodiversity Conservation Act (Cth) s 67.2 Environment Protection and Biodiversity Conservation Act (Cth) s 67.3 Environment Protection and Biodiversity Conservation Act (Cth) s 68.4 Planning Act (NT) 2A.5 Planning Act (NT) s 30B.6Planning Act (NT) s 30B(2)(A).7 Environment Assessment Act s 4.


authorities may regulate against commercial agricultural action that can affect the land.8Consequently, approvals must be granted for rezoning from Conservation to Agricultural. Clause 2.2 of the NTPS reinforces the provision of development action on zoned land by making it a requisite to refer to the zoning provisions before taking an action.9Clause 5.22 of the Northern Territory Planning Scheme shows the Conservation as prohibited for agricultural purposes.10 For the part of the land that is zoned Agricultural, the NTPS provides that agricultural commercial developments may be carried only with consent.11

Therefore, approval is advised to be sought in relation to guidelines of developing in zoned areas for agricultural purposes. Plans that must follow the abovementioned guidelines must be presented in advance to the Minister for decision to seek further approvals for rezoning if required.

(b) Zoning and Subdivision of Land

The same general statutory provisions as above apply in the case of development resulting in subdivision of land. Section 44B of the Planning Act NT specifies that approval is needed for subdivisions of land. Section 51Q of the same act further provides that for the building of a new township, the approval of building certifiers is required. Clause 2.6 of the NTPS must be taken in consideration regarding seeking consent for subdivisions. Conditions of the township proposals must be taken in consideration as per part 5 of NTPS. Provisions of 5.22 clearly restrict the development of any residential dwelling or units that would for a township unless approval is sought for rezoning.

2 Approvals Applicable to Endangered Communities

Pursuant to s139 of the EPBC the Minister is obliged to seek approval for any actions that are to be taken on land containing endangered species pursuant to s18 of the same act of threatened communities listed in the Environment Assessment Act as per description. The investor is therefore advised to seek approval for both developments that are very likely to affect the sustainability of these communities.

3 Approvals to be Sought Regarding Endangered Species

Section 18 of the EPBC Act refers to the prohibition of actions without approval on land containing critically endangered species. Therefore approval for the Department of Lands, Planning and Environment is needed.

4 Approvals Needed in Relation to Ramsar Wetlands

Approvals are needed for both proposed developments and required under s138 of EPBC to be sought from the Minister in compliance with the Commonwealth’s duty for protecting and managing listed Ramsar Wetlands.

5 Approvals and Investigation to Be Conducted in Relation to The Contaminated Land

8 Environment Protection and Biodiversity Conservation Act (Cth) s 390E(2)(a).9 Planning Act (NT) s16(1)(a).10 Northern Territory Planning Scheme, Part 3 – 42.11 Northern Territory Planning Scheme 10.2 (5).


The issue is whether or not the contaminated land, as part of the property, is subject to approval for development for agricultural purposes.

Section 32(1) of the Waste Management and Pollution Control Act provides that part of the grant of approval carried out by NT EPA authorised by the Environmental Assessment Act is to conduct assessment reports in relation to possible threatening contaminated sites. As per previous cases such as Armidale City Council and Alec Finlayson Pty Ltd (1998) 104 LGERA 9, the identification of contaminated sites must be determined before development consent is issued.12

Therefore, focus has now been put on identifying and assessing contaminated lands by relevant authorities to establish the amount of danger that may pose in the event of development.13

B Whether or Not Bilateral Assessment Applies and Identifying the Final Decision Maker (Question 2)

Under s 45 of EPBC, the Minister of a State or Territory may decide to enter into a bilateral agreement taken responsibility on behalf of the Commonwealth in conducting all required assessment to reach a conclusion on a proposed action. Pursuant to s 44, 45, 46 and 47 of the same Act, the regulatory provisions of the Environment Protection and Biodiversity Regulations 2000 underline the types of bilateral agreements that can be drafted.14It is there that the Minister, upon approving the declaration through Parliament may adhere to a bilateral agreement.15However, as prescribed in clause 3.06, the State and Territory can be trusted to carry out assessment and approvals as specified in the agreements. However, the decision, if concerning Commonwealth land, will ultimately belong to the Federal Government.16For example in Lansen v Minister for Environment and Heritage 2008 FCA 903, the Minister has rejected the proposal and changed the conditional approval based on the report of the assessment.

Therefore, in the current situation the Minister may decide to enter in a bilateral agreement with the NT government to conduct an assessment agreement in matters concerning the environmental sustainability of the Commonwealth concerned land, such as the Ramsar Wetland. The local government together with the Commonwealth must however agree on the assessment plan that will satisfy both federal and state provisions.

C Remedies (Question 3)

The issue is whether or not the investor may have the right to appeal the decision to the Tribunal for the purpose of modifying one or more of the conditions established in relation to Matters of National Significance made on his application for development.

Pursuant to section 303GJ of the EPBC, the client has the right to contest the conditions of the approval for the development permit to the Administrative Appeals Tribunal. Section 303GJ(1)(a) provides that a specific condition may be reviewed and revoked. Such decisions 12 Gerry Bates, Environment Law in Australia (Lexis Nexis, 8th ed, 2013) 15.136.13 Ibid.14 Environment Protection and Biodiversity Regulations 2000, Part 3.15 Environment Protection and Biodiversity Conservation Act (Cth) s 49A.16


made by the Minister have been previously contested by the developers in cases where the appeal was a merits appeal.17One of the options will be to contest the decision in front of the Tribunal for merit review. In Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (2008) 167 FCR 463, the developer has appealed to the decision of the Minister in rejecting the proposal based on the fact that it would critically affect the Ramsar wetlands close by. The appellant has won based on the judicial decision that the principles of ESD have been taken in consideration. As per the case of Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270, a factual sheet of the benefits brought by a project and an analysis of public information that was given may be enough to win an appeal. Another option to be taken in consideration is that of mediation between the consenting party and the developer.18These remedies are however, considerate of external factors. Under s 74C(3)(c) of the EPBC provisions state that the proponent is entitled to request that the Minister reconsiders the referral made on a matter of national environmental interest. Furthermore subsections (a) and (c) of the same section stipulate other option for reconsideration as withdrawal of plans or replanning of proposal by the applicant.

Therefore, in this case, the advice suggested will be to appeal to the Tribunal for consideration on the size of the project and the positive impacts that would have on the community and also for negotiation in relation to restrictive conditions regarding MNES.

D Judicial review (Question 4)

Pursuant to provisions of s 487 the conservative group is entitled to start a judicial review on the Minister’s decision. However, the judicial reviews normally have as pre requisite the acknowledgment that assessing authorities have followed correct principles and statutory norms to reach that particular decision. Moreover assessing bodies are not to be held responsible for explanation in front of the review boards.19

In case of success, such in the case of Corowa v Geographe Point Pty Ltd (2007)154 ALGERA132, where an invalidity in assessments provided for approval has been found, the decision has been found invalid, therefore decided for the application process to start all over again. Alternatively as in the case of R v Murphy (1990) 71LGRA1, where the judicial review took in consideration the potential environment hazards that may occur from the rezoning of already development land, the development of specific rezoning to agricultural or townsite operation may be stopped in areas closes to the territory closely adjacent to the Ramsar Wetlands.

II QUESTION ONE

17 Leatch v Director – General of National Parks and Wildlif (1993) 81 ALGERA 270.18 Above n 12, chapter 20 pp877.19 Above n 12, 20.23.


The issue posed by this quote raises the issue of whether or not the scope and intention of environment regulations are being limited and overwritten by merits appeals of Ministerial decisions.

Division 16 of the EPBC deals with provisions regulating the requirements of a person or organisation aggravated by a Ministerial decision. Section 487 of this division provides limitations of the characteristics of entities that can apply for judicial review of decisions. The intention of this section is to offer transparency of the process of decision making to the interested and effected parties. However this provision only enlarges and regulates the broad actions that can be taken against an administrative decisions provided by the Administrative Decisions (Judicial Review) Act.20However, so does s 78D of the same act that considers that an obvious lawful decision taken by a Minister is to be noticed to public and open to responses from the aggravated party within 10 business day of the publication. The Secretary is then obliged to submit a report to present the effects on the environment of the proposed action together with the comments made by the public resulting in request of reconsideration for the Minister. 21

The judicial review provided by the ADJR, are concerned with the lawfulness of the process carried out by the decision maker during the process of making the decision.22As much as this can offer accountability for the administrative processes followed, it does not open up options of contestation of the decision but perhaps a reconsideration decided by the review board. Accountability however, can be rejected, in terms of information reviewed, under the grounds of exception and governmental confidentiality as in the case of Re Angel and Department of Arts, Heritage and Environment (1986) 9 ALD 113. The openness to the public access to documents reviewed has also been discussed in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd.

The reason why the judicial review process and scope have been briefly discussed above is due to the fact that it presents an alternative to the merits appeals. The Ecologically Sustainable Development at the centre of environmental law obligations and regulation has as a core goal the creation of a sustainable development for current and future generations. Rationally, the input of the public must be permitted when decisions that are likely to harm the environment are permitted.

The merits appeal review of the decisions is concerned with the judicial decision of re-examining the facts already considered the decision making bodies but from a new perspective.23 However, the differences are made by the fact that once the decision on merits is made, it’s final. So the question therefore is, why appoint a trustworthy board of decision makers to go through the process of assessment and decision making if the decision can ultimately be overwritten at the appeal of the proponent. It is common that merits reviews are mostly concerned with development proposals. State legislations such as s 97 of the Environmental Planning and Assessment Act NSW provides for proponents to request a merits appeal after the process of internal assessment (described above) is concluded. Cases such as Ciccarelo v City of Charles Sturt, Betohuwisa Investments v Kiama Municipal Council are also precedents at common law that advocate for the owner of

20Administrative Judicial Review Act, s 5(1).21 Environment Protection and Biodiversity Conservation Act (Cth) s 74D(4).22 Above n 12, 20.21.23 Above n 12, ch 20.


the land and proponent of the initial application to request review on merits. 24Under s 303GJ of EPBC an applicant can apply for a merit review of decisions including, revoking an approval, obtaining or revoking a permit etc within the jurisdiction of the Administrative Appeal Tribunal. The list is inclusive. In relation to the comments made pro abolition of merits appeal is important to note that Ministers must take in account as part of the assessment provisions of the EPBC Act and apply the precautionary principle to conserve the goals of an ecologically sustainable development.25It is important to note that judicial review is considering holistic factors of making a decision. In Lawyers for Forests Inc v Minister for The Environment, Heritage and The Arts (2009), the judge has ruled in favour of the Minister’s decision and his special conditions regarding the protection of the environment in conducting the proposed development of a pulp mill. The judiciary therefore, is in the position of balancing the holistic factors to be taken in consideration. Thus, the Judge’s rule in the above case of reassuring that sufficient information was considered to conclude great harms to the environment.

As a conclusion to this discussion, the abolition of the merits appeal is not necessary. And it can perhaps be seen as an aid to administrative decisions rather than a limitation and accountability request of administrative bodies. It is the definite characteristic of a merits appeal that will always attract criticism by legal academics. However the balance of the legal process is to be open to discussion.

III QUESTION THREE

From the global emergence of the concept of ESD in 1987 in the Brundlandt Report of World Commission of Environment and Development , the main focus of environmental law in its incipient stages, Australia has been part of this environmental protection movement every step of the way. The partake of Australia, as a state with a right of veto within the United Nations World Conference for Sustainable Development held in Rio de Janeiro in 1992 represented the beginning of the international relations that Australia and therefore, Australian environmental law and policy, with the policies adopted globally. ESD is now to be taken in consideration in each section of decision making, assessment or policy regarding the sustainability and continuance of the environment. 26Common sources of international law are treaties. Australia has adhered to several treaties in relation to environmental global policy. Nations, however sovereign in local jurisdiction, become bound by agreements with other nations. One example is the convention on Internation Trade in Endagered Species (CITES). A multitude of provisions of the EPBC are pursuant to Australia’s ratification to CITES such as: s 303GN(1)(ii), s303GQ(2). Furthermore in s 139(1)(ii) explicitly underlines the necessity of the national decisions’ compliance with CITES international principles.

Art 193 of UNCLOS stipulates that all nations must have sovereignty over the natural resources on own territory. However, the unique geographical position of Australia as an island nation, makes it highly economically reliable on the receipt of imports and the revenue from exports. The General Agreement on Tariffs and Trade together with World Trade Organisation, both to which Australia ratified, regulate the trade amongst nations. Based on federal regulations regarding the import of threatened species in Australia, the Quarantine Act Cth provides that any new species that could potentially harm the environment in

24 Gerry Bates, Environment Law in Australia (Lexis Nexis, 8th ed, 2013) pp 334.25 Environment Protection and Biodiversity Conservation Act (Cth) s136(2) .26 Above n 24, Ch 4.


Australia must be assessed by the Minister of the Environment and once established to not be permitted within the state. 27

The ratification of Australia to the above mentioned international treaties has of course repercussions on the internal performance of environmental law to the standards adhered to. Due to these standards, judicial decisions on environmental matters may be made in regards to provision of those international treaties. One example is the case of Tasmanian Dam Case where legislation of World Heritage Convention has been referred to.

Therefore the decisions of several ratifications to international treaties are decisions made by the Commonwealth. To a degree there is a large extent to which local policy and legislative provisions are made in accordance with the international standards. However, in situations of national interests, Commonwealth law has prevailed.

27 Conservation Council of South Australia v Development Assessment Committee No.3

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LWZ 112 - Take Home Exam