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Inside track: Local Government

24 February 2021

#Local Government, #Construction, Infrastructure & Projects, #Planning, Environment & Sustainability

Published by:

Krystal Bentivoglio, Kate Milward

Inside track: Local Government

What's happening in waste?

Local governments are significant stakeholders in the waste sector with their municipal functions relating to the collection, management and disposal of waste. As Commonwealth and state governments push towards a circular economy and supporting policy frameworks, it will be important for local authorities to be aware of the ever-evolving regulatory and policy landscape in the waste sector.

Victoria: New criminally enforceable general environmental duty and stronger oversight powers for EPA

Big things are happening in Victoria building on the state government’s efforts to improve waste management and recycling following the release of its 2020 policy and action plan and in response to the 2015 public inquiry into the Environment Protection Authority (EPA).

The Environment Protection Amendment Act 2018 (which amends the Environment Protection Act 2017 and repeals the Environment Protection Act 1970) is intended to come into effect in July 2021. Adopting a prevention-based approach, the substantial amendments underpin its signature mechanism – a new general environmental duty (GED). In essence, the GED is a new proactive duty to minimise the risk of harm to human health and the environment from pollution or waste. Once implemented, everyone engaging in activities that could result in harm to human health or the environment from pollution or waste will have to understand those risks and take reasonable steps to eliminate or minimise them.

Notably, while breach of the GED can result in civil penalties, a breach of the GED in the course of conducting a business or undertaking is an indictable (criminal) offence. An aggravated breach can trigger fines of over half a million dollars, five years imprisonment, or both for an individual, and fines of over $3 million for companies.

Among other things, the Act enhances the EPA’s oversight powers, sets out a framework for the management of waste and provides for waste and resource recovery infrastructure and planning. In support, new regulations and standards have also been developed. While not yet in effect, the proposed final versions of the Environment Protection Regulations and the Environment Reference Standard have been released, although it does not appear that they are open for public comment.

Queensland: Taking steps to become a zero-waste society

In 2019, Queensland introduced its Waste Management and Resource Recovery Strategy (Waste Strategy), a framework for Queensland’s vision of becoming a zero-waste society. The Waste Strategy sets the government’s strategic priorities to guide the transition to a more circular economy, reduce waste in landfill and sustainably shift end-of-life products and materials into new products.

Queensland’s Waste Strategy is underpinned by a waste levy – an important financial tool designed to encourage waste avoidance and resource recovery, and discourage the default option of sending waste to landfill. As an avoidable charge, the waste levy aims to drive the diversion of waste away from landfill and facilitate resource recovery to promote more productive uses of waste.[1] The Waste Reduction and Recycling Regulation 2011 provides the legislative framework for the levy, including levy rates and zones, exemptions and discounts.

Since implementing these measures, Queensland has continued to build out its waste regulation framework. In 2020, it introduced its Plastic Pollution Reduction Plan to reduce plastic waste and pollution through evidence-based action and collaboration on plastic consumption and disposal. The plan articulates long-term measures to be developed and implemented in future. However, it also sets out matters for immediate action including the prioritisation of grants and incentives to expand plastic recovery and reprocessing facilities and infrastructure (including in regional areas), use government purchasing power to reduce plastic use and require recycled plastic content, and provide community grants with a focus on research and development on priority plastics, marine plastic pollution, and place-based community action. The plan complements previous action to reduce plastic waste including the Containers for Change scheme and the ban on the supply of lightweight, single-use plastic shopping bags.

On the back of the Waste Strategy, the Queensland Government has developed an Energy from Waste Policy which provides a high-level outline of matters related to energy-from-waste (EfW) activities in Queensland. It aims to provide certainty to EfW proponents around the expectations for stakeholder engagement in the EfW sector, information required to support an environmental authority application for an EfW facility, and the environmental regulation of EfW facilities. The policy’s goal is to ensure Queensland’s EfW sector is developed in an environmentally and socially sound manner that contributes to the vision, objectives and targets of the Waste Strategy. Supporting guidelines are expected to be issued for consultation shortly.

NSW: Setting the stage for the next twenty years in waste strategy

NSW is also taking steps to promote a circular economy, releasing its NSW Circular Economy Policy Statement (Policy Statement) in 2019. The Policy Statement provides a framework for implementing initiatives that promote long-lasting design, maintenance, repair, re-use, sharing, transforming products into services, remanufacturing and recycling. As its first steps, the NSW Government intends to embed circular economy consideration in its decision-making and incorporate circular economy principles in its policies and strategies while planning the transition to a circular economy.[2]

The Policy Statement, together with other key policies, will form the backbone of a 20-year waste strategy for NSW (NSW Waste Strategy), currently being developed by the NSW Environment Protection Authority and Infrastructure NSW. The NSW Waste Strategy is expected to focus on delivering a sustainable, reliable and affordable waste system, and will provide direction for reducing waste, driving sustainable recycling markets and improving the waste infrastructure network throughout NSW. Released for public consultation in March and April 2020, the NSW Government is currently reviewing the feedback received on the proposed NSW Waste Strategy.

Recognising the impact of plastics on the environment and human health, the NSW Government is also making moves to address plastic waste and pollution by developing a NSW Plastics Plan alongside the NSW Waste Strategy. While no longer open for public comment, the NSW Plastics Plan will form part of the NSW Waste Strategy and contain specific measures to manage plastic waste and pollution in NSW.

Insight

There are common threads in the regulatory and policy developments in all three states with a trend towards greater resource recovery, a recognition of the importance of capturing the economic potential presented by the transition to a more circular economy and decreasing waste and pollution for the protection of human health and the environment. There also appears to be growing recognition of the desirability of harmonising waste policy and regulation across states and local government to achieve targets set in the National Waste Policy Action Plan and facilitate investment in waste sector infrastructure.

Authors: David Harley, Krystal Bentivoglio & Kate Milward

[1] Explanatory Note, Waste Reduction and Recycling (Waste Levy) Amendment Regulation 2019, page 1-2.
[2] The New South Wales Government has published further information in this space with the release of its circular economy opportunity report in November 2020, which highlights the importance of transitioning to a circular economy, particularly post COVID-19.

In the media

Government grant assessment criteria "must be above suspicion"
The ALGA has renewed calls for public grants to councils and community organisations to be assessed against transparent criteria and awarded on merit. It comes amidst allegations that some state and commonwealth government grants and funding programs, including the Safer Communities Fund, have been “gerrymandered” (11 February 2021).  More...

Future water plans must factor in climate change
The Productivity Commission says hotter, drier weather in years to come will mean a reduction in water availability for most of the country. It says state and territory governments should establish waterway managers with formal oversight responsibility for wetland and waterway management, and that decisions about government-held environmental water should be made by independent bodies (11 February 2021).  More...

Bushfire adaptation measures "need local and national focus"
The need for improved local and national adaptation measures to limit the growing fire risk in south-eastern Australia has been reiterated in another scientific study (05 February 2021).  More...

Budget support for councils will drive post-COVID recovery: ALGA
In its 2021-22 Pre-Budget Submission, ALGA has urged the Morrison Government to prioritise local jobs, infrastructure investment, and community wellbeing initiatives (04 February 2021).  More...

Queensland

Brisbane approves wave of waterfront developments
Brisbane’s city skyline will continue to transform with a wave of major development projects receiving the official tick of approval. Council’s decisions reflect major development taking place in Brisbane CBD (09 February 2021).  More...

Brisbane historic riverside mansion Lamb House protected from development under planning changes
The Brisbane City Council approves planning amendments preventing the heritage-listed, riverside mansion "Home," also known as Lamb House, from being developed (09 February 2021).  More...

Tony Williams declared Rockhampton's new mayor, ending months of uncertainty
Tony Williams has snagged the Rockhampton mayoralty with 59 per cent of the vote after exclusions and the distribution of preferences and 25 per cent of first preference votes (04 February 2021).  More...

Moreton Bay courts big tech for innovation hub
Moreton Bay Regional Council launched its Regional Economic Development Strategy with the 460ha site at The Mill, a key piece of greenfield development, earmarked for an innovation and tech precinct (03 February 2021).  More...

Spending, jobs, foot traffic on the rise as data shows Brisbane economy "bouncing back" from pandemic
The Brisbane economy is starting to "bounce back" from the effects of the coronavirus pandemic, with retail spending in the 2020 November-to-December period one of the biggest in a decade, new data shows (02 February 2021).  More...

Queensland councils call on Federal Government to establish a national reinsurance pool
The peak body representing Queensland’s 77 councils is urging the Federal Government to establish a national reinsurance pool to help reduce the cost of insurance premiums in North Queensland and across northern Australia (02 February 2021).  More...

In Practice and Courts

ALGA pre-budget submission 2021-22
Australia’s communities have been through challenging times in the past 12 months. Now more than ever, Federal Government support for local governments to assist our communities is vital for creating local jobs and strengthening community wellbeing (1 February 2021). Read more here.

LGs eligible for environmental safe havens funding
Councils have been advised that they can apply for Commonwealth grants to build safe havens for threatened native wildlife species. Local government agencies/bodies can apply for grants ranging from $500,000 up to $1.8 million. The cut-off for grant applications is 11 January 2021, and projects eligible for grants must be completed by 31 May 2023. Click here for more information.

Queensland

Gold Coast Coastal Adaptation Plan
The City of the Gold Coast has released its draft Coastal Adaptation Plan for feedback. The plan outlines a long-term strategy for how the Gold Coast responds to the impact of climate change. Community engagement runs from 19 January to 19 February 2021. To read the draft plan or to provide feedback, please click here.

City of the Gold Coast: Express DA service
The City of the Gold Coast has announced a range of incentives to support the property industry. The City of Gold Coast is introducing a new fast track service, called Express Development Application (Express DA). Express DA will commence on the 27 October 2020 and replace the existing RiskSmart service. As part of the city’s economic support during COVID-19, the City is offering a 50 per cent discount on Express DAs for 12 months (from 27 October 2020 to 27 October 2021). Have your say.

Rockhampton Regional Council expands development incentives policy
Rockhampton Regional Council has expanded its development incentives policy to include multi-residential unit developments within close proximity to the CBD. The policy will apply to DA’s lodged between 1 January 2021 and 31 December 2021. For more information, please click here.

PCA: New Sunshine Coast planning scheme
The Sunshine Coast Council will begin community consultation on a new planning scheme later this year. The changes are expected to align with newer state and local planning policies including the South-East Queensland Regional Plan which is set to be renewed next year. The new planning scheme is expected to be delivered in 2024 (February 2021). Read more here.

Cases

Queensland

Island Resorts (Apartments) Pty Ltd v Gold Coast City Council [2021] QCA 19
LOCAL GOVERNMENT – POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY – PARTICULAR POWERS AND FUNCTIONS – MISCELLANEOUS POWERS – where the appellant owns properties within the local government area of the respondent – where one of the respondent’s functions as a council is to levy general rates on all rateable land within its local government area – where the respondent considers that land used for tourism and tourism-related business and industry should generate a greater contribution to general rate revenue than land that is not used for a commercial purpose – where residential lots used to provide rental accommodation to “permanent residents” were categorised as Category 2T and residential lots used to provide rental accommodation to “itinerants” were categorised as Category 3T – whether the primary judge erred in not finding that deciding rating categories based on whether the rateable land was rented to an “itinerant” or “permanent resident” was characterising land solely on the basis of the personal characteristics of the occupant from time to time – whether the primary judge erred in not finding that the differential general rating categories 2T and 3T characterised land based upon the personal characteristics of a person who may occupy the land from time to time – whether the primary judge erred in not finding that the respondent impermissibly took into account an irrelevant consideration – whether the appeal should be dismissed.
Judicial Review Act 1991 Qld s 20(2)(e), s 23(a); Local Government Act 2009 Qld s 4(2), s 92, s 93, s 94, s 96; Local Government Regulation 2012 Qld s 80, s 81.

Powe v David Hansen on behalf of Logan City Council [2021] QDC 12
CRIMINAL LAW – PLANNING ACT OFFENCES – APPEAL FROM MAGISTRATES COURT – interpreters not sworn – inadmissible evidence tendered – whether miscarriage of justice.
Justices Act 1886 Qld; Local Government Act 2009 Qld; Oaths Act 1967 Qld; Planning Act 2016 Qld; Sustainable Planning Act 2009 Qld.

We Kando Pty Ltd v Maranoa Regional Council [2021] QPEC 1
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – application to further change a development approval for a regulated waste storage facility.
PLANNING AND ENVIRONMENT – APPEAL – appeal against the decision of the respondent to refuse an application to extend the currency period for the regulated waste storage facility.
Planning Act 2016 Qld ss 78A, 81, 87 and Schedule 2.
Planning and Environment Court Act 2016 Qld ss 43 and 45.

Legislation

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Krystal Bentivoglio, Kate Milward

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