Environment and planning lawyers are facing growing tension between Australia’s drive for economic prosperity and the expanding societal desire for a clean environment. Briana Everett examines the changes taking place in Australia in 2012

Change and uncertainty is something environment and planning lawyers are used to.

A highly policy-driven and politicised area, the sphere of environment and planning law is ever-changing, thanks to continuous developments in legislation and regulatory regimes at the local, state and federal level, as well as a flow of new court interpretation and changes of government.

In 2012, the awareness amongst society of the need to protect Australia’s environment, while also ensuring the economic prosperity of the country, is bigger than ever, making an atmosphere of constant regulatory change and uncertainty even more challenging.

In New South Wales, for example, the development of infrastructure and affordable housing and the ongoing campaign for support for coal-seam gas projects are competing with the growing concern amongst the community regarding the environmental impact of such projects. Similarly, Victoria is grappling with the regulation of wind farm development, while Queensland is dealing with various urban encroachment issues amid significant infrastructure development activity.

As a result, each state and territory across the country has undergone significant development in policy over the last 12 months and there is more on the horizon.

“It’s a constant balance and a constant review of decisions. That’s what makes the area so complex,” says Lander & Rogers partner Alice Spizzo, a former senior ministerial adviser and executive director of the NSW Department of Planning responsible for legislation and policy reform.

“Whilst people are happy to see development from an economic perspective, and they can see job opportunities, there are associated conflicts around the provision of infrastructure and that’s a big issue in New South Wales and Australia wide.”

According to Spizzo, the increased attention given to the environmental impact of development and the ongoing change within the environment and planning area, particularly after the global financial crisis, has created major uncertainty amongst developers in Australia, creating a reluctance to invest in new projects because of the doubt surrounding the actual cost involved in such projects and the associated environmental management of those.

“Whether you’re in government or you’re in private practice, you need to be aware of all those issues if you’re making or advocating changes,” says Spizzo. “You’re relying on a lot of players to line up and get things right and then suddenly, you might have a change, which is what happened in NSW with the change in government,” she says. “So you’ve got applicants who have gone under one set of rules, and those rules change overnight. What that has led to is a lack of clarity … It puts the brakes on [development].”

The 2012 landscape

The single biggest change in the last 12 months for the environment law area has been the introduction of the Government’s clean energy package of legislation, with the country’s new carbon pricing mechanism to kick off on 1 July.

“The Clean Energy Act signals the beginning of the use of a new tool in environmental law. Our traditional admin law tools are still very much being used – prosecutions, licensing and that sort of thing – but now we also have a market mechanism tool being added to that,” says Western Australia-based Clayton Utz partner and coordinator of the firm’s Environment and Planning Law National Review 2011, Brad Wylynko.

But while Australia’s clean energy legislation has been highly anticipated after years of vigorous political debate, there are a number of other important reforms on the way in 2012.

According to Wylynko, another significant change will be the Government’s response to the Hawke Review of the Environment Protection and Biodiversity Conservation Act (EPBC Act).

He says while the Government’s response to the review does not commit to an entirely new Act, it proposes a number of significant amendments such as a shift from individual project approvals to strategic approaches, including new regional environmental plans; streamlined assessment and approval processes; better identification of national environmental assets; and cooperative national standards and guidelines to harmonise approaches between jurisdictions and foster cooperation between stakeholders.

“The Hawke Review was quite comprehensive,” he says. “I think the Federal response is measured and we’ll have to see now just how well it works out and how the response gets implemented.”

While the Clean Energy Act has seen the introduction of a new market mechanism, Wylynko has also observed an increase in prosecutorial activity across the country. He says Australia is seeing more prosecutions and more significant penalties being imposed.

“Clearly the admin law mechanisms are not being forgotten. We’re seeing that very clearly in Victoria where the number of prosecutions has gone up significantly. We’re also seeing that in WA, and we’re seeing it in NSW,” he says.”

“It reflects a societal desire to ensure that along with economic prosperity, we keep the environment clean.”

Brad Wylynko, partner, Clayton Utz

Wind farms

A significant issue for 2012 is the development of wind farms in Australia, which has grown quickly in line with increasing calls for more sustainable solutions for energy generation.

While their development is on the rise, planning restrictions are becoming more stringent. According to Wylynko, increased urbanisation has meant the development of wind farms is now not only an environmental issue but also a planning one.

In 2011 the Victorian Government introduced amendments prohibiting wind turbines from being situated within two kilometres of a residence, without the consent of the owner.

These amendments, according to Freehills partner Tim Power, will have “a very substantial and adverse impact on the wind energy industry in Victoria”.

“Effectively, it’s like outsourcing the planning decision on consent for the project on a neighbour. That’s really big change to planning laws,” he says.

Given that planning and environmental laws are mostly performance-based, Power says to impose such a rule on the separation of wind turbines is “unusual”.

“There is no substantive evidence to justify the two kilometres, so it seems to be motivated by politics,” he says. “New South Wales is starting to go through a similar process. The politicisation of wind energy has been a big factor that has affected us.”

Concerned about the mandatory nature of these planning amendments, Power fears the same restrictions will be applied to the coal seam gas industry.

“Coal seam gas is also very politicised, [involving] reactions from regional communities to a very different, non-agricultural form of development in farming and rural areas,” he says. “I don’t know whether this will happen but my concern has always been that state governments will respond to coal seam gas in the same way Victoria and NSW are responding to wind farms with some pretty ordinary planning policy.

“The changes to the planning laws on wind farms in Victoria are a significant issue. It’s a very novel and not very desirable precedent that’s being created. Hopefully it’s not applied to other forms of development to mandate these separation distances.”