Writing

Book Review: Australian Environmental Law: Norms, Principles and Rules

Published in 2014 as a third edition, and now revised in 2016, a fourth edition of this book is almost due. It is not a book to be quickly skimmed for an answer as a reference text, but instead provides a detailed thematic examination of norms and principles.

The rapidity of change in environmental law in the past two years means that the book does not update readers on important developments such as:

  • The EPA and the Climate Change Act 2010 have been reviewed since 2014 and targets set under the Victorian Energy Efficiency Target 2010.
  • The presumption against retrospectivity in the context of clean-up of contaminated land has been varied by Premier Building & Consulting Pty Ltd v Spotless Group Ltd (2007) 64 ACSR 114 and Metropolitan Fire and Emergency Services Board v Yarra City Council & Ors [2015] VSC 773.
  • Polluters and former polluters need to be aware that statutory liability for remediation remains with the polluter, regardless of whether the pollution occurred prior to the commencement of the Environment Protection Act 1970 (Vic), whether the site has been vacated, relinquished or sold and regardless of other contractual arrangements dealing with potential land contamination (MFESB v Yarra City Council [2015] VSC 773).
  • The discussion about “ecological justice” should also include “restorative justice” and“disaster justice”, a concept that has increasing relevance in the Australian context and our fire-prone landscape.

In light of such rapid change, the time may be ripe for a fourth edition.

PostScript:  This Book Review was first published in the Law Institute Journal

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Water Overflow

What is the issue?

A recent decision of the Court of Appeal identifies seven factors to be considered and assessed in determining whether an overflow of water onto land is reasonable.[1]  These factors may have relevance to statutory agencies, Departments, Ministers and authorities responsible for public land or public infrastructure in particular, at times of heavy rainfall.

What was decided?

The Court of Appeal in Hazelwood Power Partnership v Latrobe City Council[2] held that the Morwell Main Drain was not a public drain for the purposes of the Water Act 1989.  Following that conclusion, the Court of Appeal considered whether the flow of water from the Morwell Industrial Estate and from the township of Morwell into the Morwell Main Drain was unreasonable.

Historically, the test of lawfulness for flow of water related to whether the landowner was uphill or downhill.  Called the ‘free flow principle’, it was considered that an owner of lower land was obliged to receive all flows of surface water onto his or her land that occurred naturally from the higher land.  The Water Act 1989 replaced the ‘free flow principle’ with a ‘reasonableness’ test.  That is, the question is no longer whether a flow of water is ‘natural’ but whether it is ‘reasonable’.

The Court of Appeal agreed with the trial Judge’s finding that the flow onto the Hazelwood land of waters generated in substantial part by the municipal drains on higher ground was reasonable.  The seven key factors considered in concluding that the water flow was ‘reasonable’ were:

  1. the contours of the land;
  2. the use of the lands concerned and the lands in the vicinity;
  3. the limited sense in which the water flow complained of from the Council drains could be said to be something other than a natural flow (ie, the ‘free flow’ principle);
  4. the purpose for which and degree of care with which the Morwell Main Drain was originally constructed by the SECV in 1949;
  5. no evidence of a lack of appropriate regard to cumulative impact of the subsequent drainage works which occurred over time;
  6. the fact that all drainage works were assumed to have appropriate statutory authority;
  7. the fact of prior consent or acquiescence to the flows of water for more than 60 years, since the Morwell Main Drain was first constructed by the SECV for the purpose of diverting flows of storm and rain water run-off from entering the open cut mine.

The Court of Appeal noted that the flow carries an ongoing risk of serious damage to the Hazelwood land and the northern batters in particular.  However in this case, the flow was considered to be reasonable.

What does it mean for me?

Advisers in government should consider these 7 factors when making an assessment of whether water flows from public land or infrastructure into private drains or onto privately held land are reasonable, particularly at times of high rainfall or floods.

[1] Hazelwood Power Partnership v Latrobe City Council [2016] VSCA 129 (Warren CJ, Osborn and Beach JJ).  See further, section 20 of the Water Act 1989

[2] [2016] VSCA 129

First published on the VGSO Blog.

Renewed commitment to energy efficiency targets

What’s new?

Victoria has renewed its commitment to energy efficiency targets with the introduction of updated targets for the next five years.  As a large energy consumer, government plays an important role in achieving these abatement targets – 5.4 million tonnes of carbon dioxide equivalent in 2016, steadily increasing each year to 6.5 million tonnes in 2020.  The Energy Saver Incentive, a scheme created by the Victorian Energy Efficiency Target Act (VEET Act) to facilitate the reduction of greenhouse gas emissions, also provides an opportunity for government to save money when undertaking certain energy efficiency activities.

How does the VEET scheme work, in a nutshell?

The VEET Act:
  1. Sets abatement targets;
  2. Imposes liabilities on energy retailers (‘relevant entities’); and
  3. Creates a scheme for the generation and sale of certificates as evidence of abatement.
An energy consumer (such as government) engages an accredited business (‘accredited person’) to do a ‘prescribed activity’.  Prescribed activities are energy saving activities specified in the VEET Regulations,  including:
  • incandescent lighting replacement;
  • commercial lighting upgrades;
  • installation of energy efficient heating or cooling; and
  • purchase of energy efficient appliances.

For every 1 tonne of greenhouse gas abated as a result of a prescribed activity, the accredited business can generate 1 certificate representing this abatement.
The accredited business can then sell the certificates to energy retailers to enable the retailer to meet their VEET liability.
In anticipation of this sale, the accredited business may provide the energy consumer with a discount because the business can sell the certificates generated as a result of the energy saving activity undertaken on behalf of the consumer.  The discount is provided at the time the accredited business is engaged.

How can the VEET scheme benefit government?

The main benefit to government, as a large energy consumer, lies in the savings able to be made by engaging accredited businesses who offer discounts for energy saving activities, such as the installation of energy efficient lighting.

Here are three practical tips that may help you take advantage of the scheme:

  • Check whether an activity is prescribed under the Regulations before developing a scope of work and engaging a contractor.
  • Check whether a contractor is an accredited person before engaging them to undertake a prescribed activity.
  • Make accreditation under the VEET scheme a condition of any procurement process involving a prescribed activity.

For more information visit:

PostScript:  This was first published on the VGSO Blog.  The author acknowledges co-author Andrea Main’s assistance, particularly with the infographic.

Plan Melbourne 2016

What are the issues of relevance to me?

The Victorian Government has released a discussion paper on the refresh of Plan Melbourne.

Plan Melbourne 2016 will be published in the first half of next year, and will build on Plan Melbourne 2014.  On 18 June 2014, we reported on the adoption of Plan Melbourne which was subsequently incorporated into the Victoria Planning Provisions.  The Ministerial Advisory Committee that advised on Plan Melbourne has been reappointed to advise on the refresh.

The discussion paper reflects the Government’s commitments and priorities and canvasses options for changes in planning policy and strategy.  It covers a range of key issues including housing and investment.  Of particular relevance to our clients is the discussion of improved environmental sustainability and planning for transport.

Environmental sustainability and climate change

The discussion paper emphasises sustainability as a key concept in the Plan Melbourne refresh.  Driving this part of the commentary are the CSIRO and Bureau of Meteorology[1] projections of increases in temperature and changing patterns of rainfall and more extreme weather events such as drought and bushfires, heatwaves, flooding and increased coastal inundation.

The discussion paper suggests that a ‘more sustainable polycentric city model’ is preferable to contain urban growth within a permanent urban growth boundary.  It is also suggested that Plan Melbourne 2016 might support the ‘greening’ of the city, by structuring planning, local policies and overlays to promote more vegetation cover and cool hard surfaces.  Clarification of the limits to the 20-minute neighbourhood is also expected in Plan Melbourne 2016.

Once finalised, Plan Melbourne 2016 will sit alongside other key components of current and existing legislation, policy and plans in Victoria on the topic of climate change and environmental sustainability, many of which are under review:

  • Climate Change Act 2010, under review by an Independent Panel;
  • Climate Change Adaptation Plan, for which consultation is planned in early 2016;
  • Victorian Energy Efficiency Target Act 2007, recently amended;
  • Renewable Energy Action Plan, currently being developed;
  • Energy Efficiency and Productivity Strategy, to be released later this year;
  • revised Draft Victorian Floodplain Management Strategy, released in June 2015 and expected to be finalised by the end of 2015;
  • State Water Plan, to be released in 2016.

Transport Planning

Plan Melbourne 2016 will reflect the Government’s transport priorities and commitments, including:

  • the Melbourne Metro Rail Project;
  • the removal of 50 metropolitan level crossings;
  • the Mernda Rail Extension; and
  • commitments to expand the bus network.

The discussion paper recognises that potential road initiatives such as connecting the Eastern Freeway and the Metropolitan Ring Road require further assessment.

Although Plan Melbourne 2014 committed to a second container port at Hastings, Plan Melbourne 2016 will leave open different options for the most appropriate site for a second container port, including locations at Bay West and Hastings.  Infrastructure Victoria will independently advise the government on this.

What are the next steps?

We will continue to update clients on this process.  Comments and submissions on the refresh of Plan Melbourne are invited until Friday 18 December 2015.  Please contact us if you would like assistance with preparing your submission.

[1] Bureau of Meteorology (2014) ‘State of the Climate 2014’.

First published on the VGSO Blog.

What to do if you are contacted by IBAC?

Since being established in 2012, the Independent Broad-based Anti-corruption Commission’s (IBAC) operations are in full swing. It has conducted a range of both private and public investigations. VGSO has advised the State on each of the first three public examinations by IBAC:

  • Operation Fitzroy‘ into allegations of serious corruption in the former Department of Transport and Public Transport Victoria;
  • Operation Ord‘ into alleged serious corruption at the Department of Education and Training; and
  • Operation Dunham‘ into the Department of Education and Training’s $180 million Ultranet project.

In the course of conducting its investigations, IBAC may, among other things, issue a witness summons or a confidentiality notice. As a public servant receiving such documents from IBAC, what should you do?

I have received a witness summons. What do I do?

A witness summons from IBAC may require you to attend and give evidence at an examination and/or produce documents or other things to IBAC. The examination may be conducted in private or public, or both.

If the summons is for an examination, the summons will state:

  • your rights and obligations in respect of the examination;
  • whether the examination will be held in private or in public; and
  • the matters you will be asked to discuss at the examination.

If you receive a witness summons:

  • You must comply with the summons. It is an offence to fail, without reasonable excuse, to comply with a summons.
  • You may seek legal advice in relation to the summons without breaching any confidentiality notice that may accompany the summons (refer below).
  • You may bring a lawyer to the examination. A lawyer can advise you during the examination and assist you to claim any rights and protections. A lawyer cannot answer questions on your behalf.
  • You may discuss your examination and the IBAC investigation with other persons, except where:
    • you receive a confidentiality notice (refer below);
    • you receive a draft report;
    • ordinary obligations as a public sector employee prevent you from disclosing the information; or
    • the other person may also be called as a witness. Discussing your evidence with a potential witness may compromise the integrity of your answers to IBAC and the integrity of IBAC’s investigation. It is an offence to hinder an investigation, including by colluding with other witnesses.

I have received a confidentiality notice. What do I do?

 

A confidentiality notice is a notice that requires you not to disclose the matters specified in the notice. You may receive a confidentiality notice if IBAC determines that the disclosure of certain matters would be likely to prejudice IBAC’s investigation or a person’s safety, reputation or fair trial. In our experience, confidentiality notices are not uncommon during an IBAC investigation.

If you receive a confidentiality notice:

  • You cannot discuss with anyone the matters specified in the notice, unless IBAC authorises this, or it is necessary to comply with the notice, or to obtain legal advice. It is an offence not to comply with a confidentiality notice.
  • You may only disclose to another person a matter specified in the notice:
    • if you are directed or authorised by IBAC to do so;
    • if it is necessary in order to obtain any information, document or other thing that you need to comply with a witness summons or confidentiality notice; or
    • subject to some restrictions, to obtain legal advice or representation in relation to a witness summons or confidentiality notice.

In such circumstances, you will need to provide the other person with a copy of the confidentiality notice at the time of disclosure. They will also need to comply with the confidentiality notice.

  • You may also disclose a matter specified in the notice if it has already been lawfully made public, either in an IBAC report or otherwise.

If you are an employee of the Victorian Government and have received a witness summons or confidentiality notice from IBAC and would like legal advice about your rights and obligations, contact your in house legal department in the first instance.

PostScript:  This was first published on the VGSO Blog.  The author acknowledges the assistance of Alison O’Brien and Julia Freidgeim.

Have you read the forecast? Changes ahead in the Land, Planning and Environment scene

There are changes afoot in the Land, Planning and Environment scene, including amendments to both the Act and the Regulations and a new levy for metropolitan developments valued over $1 million.

Changes to the Planning and Environment Act 1987 

 

A new bill has been introduced into Parliament that will permit VCAT and responsible authorities to consider the number of objectors to a permit application when deciding whether a proposed use or development may have a significant social effect.

Decision-makers must already consider whether a use or development may have a significant social effect, however the number of objectors to a permit application was previously not specifically identified as a relevant consideration.  The proposed amendments clarify that the two key decision-makers in the planning permit process, the responsible authority or VCAT on review, may take the number of objectors into consideration before a decision is made, if the circumstances require.

The Minister for Planning, Richard Wynne, stated that the new requirement ‘is likely to be particularly relevant in circumstances where a proposal may reduce access to or enjoyment of community facilities or services or adversely affect public health and safety.’  He stated that the number of objectors and the consistency of their views may demonstrate a section of the scale of a social effect on the community.

As is the case now, an objector will need to put their concerns in writing and state how they would be affected by the grant of a permit.

The Minister  also clarified that “social effects” may include matters such as the demand for use of community facilities and services, access to social and community facilities, choice in housing, shopping and recreational leisure services, community safety and amenity and the needs of particular groups in the community.

Metropolitan Planning Levy

A new levy on planning permit applications for projects valued at over $1 million within Melbourne metropolitan areas takes effect from 1 July 2015.  Relevantly no exemptions apply for State Government Agencies.

The levy will be payable to a relevant responsible authority or planning authority and will be administered by the State Revenue Office (SRO).  Applicants must first apply for a Metropolitan Planning Levy (MPL) Certificate from the SRO and pay the MPL before making a planning permit application.  The rate for the MPL has been set in essence, at $1.30 per $1000 for affected projects.

The levy is payable where the estimated cost of  the development exceeds the threshold amount, which is currently $1 million for the 2015-2016 financial year.  Moving forward, this threshold amount will be indexed by the Consumer Price Index (CPI). The SRO is to publish the CPI adjusted threshold amount annually.

New Planning and Environment Regulations

Rounding up a sweep of recent changes and drawing seven months of public consultation to a close, new Planning and Environment Regulations 2015 came into operation on 16 May 2015.

Of relevance to State agencies that own, develop or manage land, three new forms have been inserted for giving notice of a proposal and decision to amend or end a section 173 Agreement.  As such, all users of Victoria’s planning system will need to update their systems and review the new forms.

First posted on the VGSO Blog.

Changes to the operation of the VCAT Planning & Environment List are imminent!

What is the issue?

At the end of 2014, the Victorian Civil and Administrative Tribunal  announced changes proposed to be implemented to its Planning and Environment List from
2 February 2015 which will affect the way this List operates for all applicants, respondents and responsible authorities.

What does it mean for me?

All clients with exposure to the jurisdiction of VCAT, including as proponents, objectors, referral authorities and responsible authorities will be impacted by these changes which we consider will streamline this List to follow a similar mode of operation to the Major Cases List, a subset of the Planning and Environment List.

VCAT advised of the following four key changes in a recent media release.

  1. Initiating orders will be sent out for all matters in the Planning and Environment List.  These orders will specify hearing dates and any compulsory conference or mediation dates.  This changes from the current position where parties are not advised of a hearing date until later in the process.
  2. Alternative dispute resolution using the expert services of the mediators at VCAT will be further encouraged by notification of the date for attendance at a compulsory conference or mediation at the outset of proceedings.  The current position relies on solicitors advising their clients of the method and process of mediation at VCAT in order to attempt to resolve the dispute by mutually acceptable terms for all parties.
  3. Email is proposed to be the ‘preferred method’ of communication with parties and their advisors, rather than posting orders and hearing dates out in hard copy by ordinary post.
  4. New application forms will facilitate the early provision of required documentation and additional details. This includes a copy of the planning permit application, plans and supporting material lodged by the applicant for permit,  detail regarding objectors and whether a cultural heritage management plan has been prepared.

These changes are reflective of the new Major Cases List process, whereby applicants are provided with standard initiating directions setting out all relevant hearing dates together with a timetable for other procedural steps.  In our experience, this new method significantly expedites the hearing and determination of a matters, and if possible the early resolution of a dispute without jeopardising the allocated hearing date.

These changes will predominantly affect applications for review of the decision to grant (or not to grant) a permit, failure to decide appeals and applications for review of conditions of permit.  Enforcement matters will instead be referred to an initial practice day hearing.

What are the next steps?

Until 2 February 2015, VCAT advise that the old methods and procedures will be applied to applications for review.  At that time, finer details regarding the new procedures will be clarified.  Parties should seek legal advice regarding the impact of the announcement on any future matters proposed to be filed in VCAT.

This was first posted on the VGSO Blog.

Planning enters the fast lane at VCAT

The new Victorian Civil & Administrative Tribunal Amendment Act 2014 (the Amendment Act) will come into operation on or before 1 February 2015.  The purpose of the Amendment Act is to enhance the Tribunal’s powers and efficiency, and both formalise existing practices and expand the regime for management of expert evidence at VCAT.  These new measures aim to ensure the Tribunal can efficiently manage and resolve cases brought before it, particularly in its planning jurisdiction.

These substantial reforms introduced in the Amendment Act will empower the Tribunal to:1. Invite original decision-makers to reconsider a decision at any time in a proceeding (s 51A);
2. Order a person to cease to be a party to a proceeding if they are not an affected, proper, or necessary party (s 60A);
3. Order the reimbursement of VCAT fees from one party to another (s 115B). This entitlement will be presumed in certain matters where a party substantially succeeds (s 115C) and is distinct and separate from the Tribunal’s power to make an order for costs (s 115D);
4. Delegate certain functions of the Tribunal to its registrars (s 157A); and
5. Actively manage expert evidence used in proceedings (Schedule 3).
This note discusses the first and last points in particular.

Council to reconsider its decision

New s 51A allows the Tribunal to invite the original decision-maker (eg, a council) to remake the decision under review during the course of a proceeding.  This may enable faster resolution of planning review proceedings.  This new provision gives a local council ‘the opportunity to consider a proposed resolution to the dispute’ rather than requiring a local council to find or make specific delegations or authorisations to give effect to a settlement.

Expert Evidence Directions

The Amendment Act also elaborates on existing powers and formalises current Tribunal practice in relation to expert witnesses and expert evidence.

The Tribunal accomplishes this by including in the Amendment Act the power to:
1. Call for the preparation of an expert report;
2. Limit expert evidence to specified issues;
3. Limit the number of expert witnesses called;
4. Provide for the appointment of a single joint expert or Tribunal appointed expert; and
5. Give any other direction that may assist expert witness functions in a proceeding.

Expert Witness Conferences & Joint Expert Reports

The Amendment Act formalises VCAT practice in relation to expert conferences and the preparation of joint expert reports.  The Amendment Act formalises the Tribunal’s practice of ordering experts to enter a ‘hot-tub’.  This is aimed at identifying areas of agreement between multiple experts and, therefore, narrow the issues in dispute.

A conference of experts can be held without the presence of the parties to a proceeding, the practitioners, or an independent facilitator.  Joint expert conferences may also lead to a joint expert report setting out areas of agreement and disagreement between experts.

Anything said or done during a conference of experts is confidential.  What occurs during the conference must not be referred to during a related hearing or proceeding without the agreement of the parties or by order of the Tribunal.

Single Joint Experts

The Amendment Act preserves VCAT’s power to appoint an expert to assist VCAT in the proceeding or, alternatively, order an expert to be engaged jointly by the parties.

In making such a decision, the Tribunal must consider:

• the proceeding’s complexity;
• the amount in dispute;
• whether the issue falls in a substantially established area of knowledge;
• the necessity of a range of opinions;
• the likelihood of expediting or delaying the proceedings; and
• any other relevant considerations.

Formalising Expert Evidence Provisions? 

The Amendment Act suggests a move towards formalising the approach to expert evidence at VCAT and a departure from a previously more informal process.  This is reiterated by the adoption of a definition of expert witness and a regime consistent with the Civil Procedure Act 2010, which does not currently apply to VCAT.

That said, the VCAT Practice Note PNVCAT2 – Expert Evidence remains unchanged and we understand that there are no plans to update it at this time.  It is worth also noting that the Practice Note adopts a definition of ‘expert witness’ which is more detailed than the definition in the Amendment Act.

Take home points 

1. The Tribunal will have new powers to improve the efficiency of managing cases brought before it.
2. In particular, in review proceedings, the Tribunal will be able to invite original decisions makers to
directly reassess their decision at any time during a proceeding.
3. The Tribunal’s power to invite decision makers directly to reassess decisions will be particularly relevant to the planning jurisdiction.  Importantly, it may provide more options for developers and those engaged in major planning matters to seek faster resolution of their disputes.
4. The expert evidence provisions, for the most part, formalise current VCAT practices.
5. Although the extent to which the reforms will improve Tribunal functioning has yet to be seen, it is anticipated that these provisions as a whole will generally save time and money if factored into your case
preparation and instructions to experts.

First published on the VGSO blog.