Commencement of enforceable undertakings in Queensland

From today, legislation passed by the former State Government allowing enforceable undertakings (EUs) to be entered into under the Environmental Protection Act 1994 (Qld) (EP Act) will commence. 

The EUs add to the suite of enforcement mechanisms already available to the Department of Environment and Heritage Protection (EHP), including:

• warning notices and letters
• penalty infringement notices
• environmental evaluations
• environmental protection orders
• clean-up or direction notices
• suspension or cancellation of licence, permit or authority, and
• prosecution.  

EUs are binding agreements with EHP in relation to a contravention, or alleged contravention, against the EP Act.  The undertaking should deal with remedying or preventing non-compliances, or other actions proposed to achieve legislative compliance, as well as measures for enhancing the protection of the environment.

The legislation allows an operator in Queensland to propose an EU to EHP, which can accept or reject the proposal.  An EU can be accepted even if prosecution proceedings have been started, so long as they have not concluded.  Once accepted, an EU prevents the commencement of proceedings for so long as it is complied with (existing proceedings must be discontinued after acceptance).  All accepted EUs will be published on EHP’s website. 

Failure to comply with an EU will amount to a separate offence against the EP Act, in addition to any underlying conduct, which is immediately actionable in the Magistrate’s Court. 

The EHP has added a guideline on EUs to its set of compliance guidelines, providing a clear policy indication of circumstances in which an EU will not be accepted (similar to amendments made to the Guidelines for Transitional Environmental Programs recently). 

For Queensland operators, EUs provide a viable alternative to prosecution or the suspension or cancellation of an authority under the EP Act.  The legislation specifically provides that entering into an EU is not an admission of guilt.  Given some of the requirements surrounding EUs, however, we consider they are unlikely to be a practical or popular alternative to lower order enforcement or for relatively minor non-compliances.  EUs have been used by operators and regulators in NSW for some time following non-compliance.  We anticipate that they will be used in similar circumstances here in Queensland.  

 

Tim Hanmore, Jessica Snell, Claire Meiklejohn

Planning Minister announces review of Mining SEPP

The New South Wales Planning Minister Rob Stokes recently announced an upcoming review of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP) which will occur before September 2015. 

In making this announcement the Minister indicated that:

• there will be an overhaul of the way large mining and coal seam gas projects secure approval
• environmental considerations must be a foundational concern in any decision about resource use
• the community will be given a greater chance to test the planning decisions
• society and the environment will get a more equal weighting with the economy in decision making, and
• there will be a focus on monitoring and compliance so that the consent doesn’t sit on a shelf after it is granted.

Proponent’s that rely on the Mining SEPP to carry out their operations should start giving consideration to how the SEPP can be improved, such as by the following means:

• examples of exempt and complying development that have minimal environmental impact and which should be included in the Mining SEPP
• dealing with issues faced in the implementation of the Gateway process, and
• changes to the application of clause 12AA regarding the significance of the resource.

Further updates on the proposed reforms to the Mining SEPP will be provided in due course.

Samantha Daly, Patrick Holland, Kate Swain

 

New land acquisition and mitigation policy for NSW mining, petroleum and extractive industries

The NSW Government has released a new State Environmental Planning Policy Amendment (Gas Exploration and Mining) 2014 (SEPP Amendment) which came into force on 19 December 2014. 

The SEPP Amendment introduces a new land acquisition and mitigation policy to formalise landholder protection from noise and dust for State Significant Developments (SSD) in the mining, petroleum and extractive industries. 

This means that decision-making bodies are now obliged to take into account the new 'Voluntary Land Acquisition and Mitigation Policy' in determining development applications.  This policy provides guidance on measures to reduce the impact of noise and dust on adjoining properties from proposed new activities.  It applies to all undetermined SSD applications and any future applications to modify existing operations. 

The policy provides that the acquisition price to be paid by a proponent be an amount no less favourable that a 'market value' rate calculated as if the land was unaffected by the development and with reference to section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Land Acquisition Act).  This requirement is controversial as the Land Acquisition Act is a statutory scheme introduced for use by NSW government authorities during compulsory acquisition of private land for a public purpose. 

The policy also has the potential to significantly impact proponents of SSD in the mining, petroleum and extractive industries, as it introduces voluntary land acquisition criteria for particulate matter applicable to the majority of workplaces on privately owned land (in addition to residences). Importantly, the consent authority maintains discretion as to whether or not to apply the particulate matter acquisition criteria to workplaces, with a range of factors for the consent authority to consider including the nature of the workplace.

Under the policy, a 'workplace' is defined to include 'a lawfully operating office, industrial premises or intensive agricultural enterprise where employees are grouped together in a defined location, but does not include broad-acre agricultural land, heavy, hazardous or offensive industry or businesses intentionally located close to mining operations.'

Outcome

The requirement that the Land Acquisition Act criteria be applied to acquisition of some types of workplaces affected by dust has the potential to make smaller SSD applications and modifications unviable, as the cost of relocating and compensating a business owner could be substantial. 

Samantha Daly, Patrick Holland, Kate Swain

Introduction of risk-based scheme for NSW EPLs

Holders of environment protection licences (EPLs) could see their administration fees increase in the 2016/17 financial year.

On Friday 2 May 2014, the Protection of the Environment Operations (General) Amendment (Licensing Fees) Regulation 2014 (Licensing Regulation) came into effect.  The Licensing Regulation introduces a new risk-based licensing scheme that aims to encourage EPL holders to improve their environmental performance.

The risk-based licensing scheme will change the way that EPL fees are calculated and inform the level of regulatory intervention imposed on EPL holders.

Higher fees and a greater regulatory burden will be imposed on operators who have a poor environmental management history or who are carrying out operations that pose significant risks to the environment.  Fees can be reduced when steps are taken to mitigate the environmental risks caused by an operation. 

For more information and comprehensive detail on the Licensing Regulation, please visit the McCullough Robertson website.

Samantha Daly, Patrick Holland, Kate Swain

Draft NSW Biodiversity Offsets Policy for Major Projects

There is currently no standard method for the assessment of impacts of major projects on biodiversity. The draft NSW Biodiversity Offsets Policy for Major Projects (Offsets Policy) is seeking to introduce a standardised approach that provides guidance in assessing and offsetting the biodiversity impacts of major projects.

At this point in time, biodiversity impact assessments are undertaken on a case-by-case basis which can result in significantly different offset requirements for different projects.  The Offset Policy aims to minimise these discrepancies and provide an assessment procedure that is practical and reasonable.

The Offsets Policy will apply to major projects in NSW (projects that are declared State Significant Development or State Significant Infrastructure by the Minister for Planning and Infrastructure).

The policy principles

The policy is underpinned by seven key principles:

Principle 1 – Impacts must first be avoided and unavoidable impacts minimised through mitigation measures.

Proponents must avoid and minimise impacts before considering offsets.  A proponent will need to justify why impacts can’t be avoided or minimised.

If an impact can’t be avoided, a reasonable effort must be made to minimise the impact, and offsets used to compensate for the remaining impacts.

Any impacts that are more complicated and severe (e.g. extinction of a species) will require additional consideration by a consent authority before an offset can be used.

Principle 2 – Offset requirements should be based on reliable and transparent assessment of losses and gains

The Framework for Biodiversity Assessment will need to be applied on behalf of proponents in a transparent and repeatable method for assessment by ecological consultants who are accredited specialists under the existing NSW BioBanking Scheme.

Principle 3 – Offsets must be targeted to the biodiversity values being lost or to higher conservation priorities

Offsets will need to have a ‘relationship’ to the biodiversity values being lost:

• Vegetation - the policy no longer requires like-for like’ offsets.  The offsets can now include similar vegetation in the same locality if those vegetation types are more highly cleared than the vegetation that will be impacted by the development in question
• Threatened species - if a species is not critically endangered or listed under the Environment Protection and Biodiversity Conservation Act 1999, with approval, a species may be offset with a similar species in the locality that is under the same or greater level of threat, and
• Aquatic biodiversity - offsets can include similar aquatic habitat in the catchment that is more threatened than the aquatic habitat being impacted upon.

The Offset Policy will broaden the scope of entities that can fulfil offset requirements, and recognises that protecting and improving biodiversity of a similar value, but under a greater level of threat can also provide benefits to the state.

 

Principle 4 – Offsets must be additional to other legal requirements

Offset land can already be managed under legal requirement. The Offset Policy requires offsets to be in addition to other existing native vegetation management.

Public land can be used for offsets even if it has existing legal requirements for environmental management, however a 5% - 7.5% overall discount to the number of biodiversity credits will apply to that land.

Land that is used to create carbon credits which are not 'legal requirements' (i.e. voluntary carbon offsets) can also generate biodiversity credits under the scheme. This means that one offset site can potentially generate both biodiversity credits and carbon offsets.

Principle 5 – Offsets must be enduring, enforceable and auditable

As the impact on biodiversity is usually permanent, the mechanism used to manage an offset site must also be enduring.  As such management actions are required to be enforceable and auditable and comply with the following criteria:

• objective of ongoing management
• sufficient resources available
• plan of management in place
• mechanism can't be altered without an alternative arrangement, and
• the conservation of the offset must be in perpetuity and disclosed to future owners.

Currently, Biobanking agreements are the only mechanism in NSW that satisfy all of the above criteria.

Principle 6 – Supplementary measures can be used in lieu of offsets

Supplementary measures may be used in lieu of offsets if an appropriate offset site cannot be found, however reasonable attempts must be made before supplementary measures will be considered by a consent authority.

Supplementary measures will need to be commensurate with the cost of establishing an offset site.

Principle 7 – Possibility to discount offset if the proposal will provide significant social and economic benefits to NSW

In very limited circumstances, a consent authority will consider modification of offset requirements if it would otherwise prevent a project from proceeding.
 

How the policy will work

The policy principles will guide the Framework for Biodiversity Assessment.  The Framework for Biodiversity Assessment proposed by the Offsets Policy has two stages.

Stage 1 – Biodiversity assessment

Under the Offset Policy, a proponent is required to:

• avoid and minimise impacts on biodiversity
• assess the remaining impacts
• determine if the impacts require further consideration, and
• complete a biodiversity assessment report.

Stage 2 – Fulfil offset requirements

Subject to the outcome of the biodiversity assessment report, the proponent is required to prepare a Biodiversity Offset Strategy setting out one of the following ways to fulfil the offset requirements:

• offset a site secured by a biobanking agreement
• mine site rehabilitation
• contribution to supplementary measures, or
• contribution to a biobanking fund.

The proponent must then submit the biodiversity assessment of Offset Strategy as part of the project application for consideration by consent authority.
 

Biobanking agreements

The preferred offsetting method will be through a biobanking agreement, where an offset site is dedicated to protecting and improving biodiversity to counterbalance the losses of biodiversity on the development site. This is materially different to the current situation whereby proponents have a choice of what method they choose to secure land (eg conservation agreement, covenant etc).

The offset site can be owned by a proponent or, alternatively, the proponent can contribute monetary payments to a landowner to manage an area of biodiversity on their land. 

Improvements in biodiversity on an offset site will be calculated in ‘biodiversity credits’.  A biobanking agreement will identify the number and type of biodiversity credits that will be generated through the landowner’s management actions.  A proponent can then purchase biodiversity credits to compensate for the loss of biodiversity on their development site. 

Once the biodiversity credits have been purchased, they are ‘retired’, removing them from the market to prevent them from being traded in the future.

Voluntary conservation agreements (VCA) are currently the preferred offset mechanism for most major projects in NSW as they provide greater flexibility for the proponent. Also, one of the benefits of a VCA as opposed to a biobanking agreement is the exemption of this land the subject of a VCA from Council land rates.  The Local Government Act 1993 does not currently exempt land the subject of a biobanking agreement from land rates.
 

New flexible ways to achieve your offset requirements

The Offsets Policy has introduced new, more flexible ways (in addition to the biobanking agreements) in which proponents can achieve their offset requirements to ensure that the best and most credible offsets are provided:

• Mine site rehabilitation - Proponents will be able to count ecological rehabilitation of mine sites in calculating offsets, where there are 'good prospects of biodiversity being restored'.
• Broadening of the 'like-for-like' biodiversity requirement - this recognises that the exact same biodiversity may not always be available for an offset.  If like-for-like is not available, offsets that are a 'higher conservation priority' may be targeted, provided they have a relationship to the biodiversity being lost.
• Supplementary measures - If all reasonable measures have been made to locate an offset site, but one is not able to be found, a proponent is able to provide funds for supplementary measures such as:
• threatened species recovery programs
• threat abatement programs, or
• contribution to biodiversity research and survey programs.
  The contribution will be calculated based on what the cost of an offset site would have been for that project.

 

Possibility of a discount on your offsets?

The Offsets Policy will allow a consent authority to reduce offset requirements in certain limited circumstances, where ‘significant social and economic benefits accrue to NSW as a consequence of the proposal’, and the project’s offset requirements may make the project unviable. 

The potential to reduce offset requirements has been introduced under the Offset Policy in recognition that under the Environmental Planning and Assessment Act 1979 a consent authority is required to consider the social and economic aspects of a proposal.
 

Biodiversity offsets fund

The NSW Biodiversity Offsets Fund for Major Projects (Offsets Fund) complements the Offset Policy’s supplementary option by enabling proponents to contribute a monetary amount to satisfy their offset requirements. The fund will then purchase offsets on behalf of the proponent.  The establishment of the Offsets Fund will:

• give proponents increased certainty - proponents will be able to understand upfront how much money they will need to contribute to fulfil their offset requirements
• enable a more strategic and coordinated purchase of offsets located in strategically important biodiversity areas in NSW such as land adjacent to wetlands and rivers, and
• facilitate landowners to establish offset sites on their land that could result in an additional income stream. 

 

Transitional provisions

The transitional period is likely to commence during the second half of 2014.  It is intended that after approximately 18 months, the policy will be implemented through legislation. It is not clear from the draft Policy how the Policy (once finalised) will apply to current development applications where Director-General’s requirements have been issued but the development assessment process is not yet complete.

The Offset Policy will not apply to existing offset sites secured under other long-term mechanisms.
 

Find out more at our free seminar

Partner Samantha Daly and Director of Umwelt environmental consultants Barbara Crossley will lead a panel of experts:

• Environmental law expert Patrick Holland from McCullough Robertson’s Sydney office
• Travis Peake, Manager Ecology/Associate, Umwelt – expert in biodiversity assessment and offsets, and
• Andrew McIntyre, Regional Manager, Hunter Central Coast at the NSW Office of Environment and Heritage

in a free seminar in the Hunter Valley focusing on what you need to know about the NSW Biodoversity Offsets Policy.

Date: Friday 2 May 2014

Venue: Singleton Diggers Club, York Street, Singleton  NSW  2330

Time: 7.15am for 7.30am - 9.00am (light breakfast included)

RSVP: Monday 28 April 2014

Enquiries: Donna White on 1300 MCR 888 (1300 627 888)

Click here to register.

Samantha Daly, Patrick Holland, Kate Swain

Expanded CSG exclusion zones to protect critical industries in the Upper Hunter

NSW CSG exclusion zones

The NSW Government announced this week further exclusion zones for coal seam gas (CSG) development across NSW.  The exclusion zones will now apply to an additional 2.7 million hectares of land across NSW in order to protect current and future residential areas as well as critical industry clusters in the Upper Hunter.

CSG exclusion zones are already in place for existing residential areas throughout NSW.  These exclusion zones apply a two kilometre buffer around the residential areas to prohibit any new CSG activities.

The latest announcement will see a prohibition of CSG activities in an additional seven rural villages as well as future residential growth areas.  The rural villages that have been identified include:

• parts of Broke and Bulga, and all of Camberwell and Jerrys Plains, in the Singleton Local Government Area
• all of Sutton Forrest in the Wingecarribee Local Government Area
• part of Goonengerry in the Byron Local Government Area, and
• all of Modanville in the Lismore Local Government Area.

This means that approximately 95 per cent of dwellings in NSW that are covered by current petroleum licences will be protected from any further CSG exploration and development.  The exclusion zones around these rural villages will not impact on State Significant mining developments which will still go through the gateway process before proceeding to the environmental assessment stage.

The future growth residential areas where CSG activities will also be prohibited are in the Gosford and Great Lakes council areas.

These exclusion zones will not prohibit CSG activities which already have development consent.

Upper Hunter Critical Industry Clusters

The wine and equine industries will also be protected from new CSG activities with the addition of 288,000 hectares of critical industry cluster (CIC) land being added to existing CSG exclusion zones. This means that any new CSG exploration or development will be prohibited in the mapped CIC areas.

In addition, development applications for State significant mining in the mapped CIC areas will be subjected to the Gateway process. Finalisation of the CIC mapping will have the greatest impact on mining operations around Muswellbrook with approximately 200,000 hectares being declared as equine clusters.

Petroleum extraction rights under mining leases

These CSG exclusion zones do not apply to those miners that have petroleum extraction rights under existing mining titles.  The CSG exclusion zones only apply to CSG development for the purpose of petroleum exploration or production pursuant to a petroleum title granted under the Petroleum (Onshore) Act 1991. The recovery, obtaining or removal of CSG in the course of mining is not covered by the exclusion zones.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain

The gateway process commences for the assessment of mining and petroleum development

On 4 October 2013, the gateway assessment process for mining and petroleum development on strategic agricultural lands came into effect through amendments to the State Environment Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2013 (NSW) (Mining SEPP Amendment) and the Environmental Planning and Assessment Amendment (Gateway Process for Strategic Agricultural Land) Regulation 2013 (NSW) (Gateway Regulation).

The gateway assessment is an independent, upfront scientific assessment of the impact of new state significant mining and petroleum development on strategic agricultural land and its associated water resources.  The gateway assessment process must be undertaken before certain mining and petroleum development can proceed to full environmental assessment.

Updated strategic agricultural land maps have been included in the Mining SEPP Amendment identifying areas of biophysical strategic agricultural land and critical industry cluster land (such as viticulture in the Hunter Valley).  At this stage the gateway process applies to two million hectares of strategic agricultural land which was mapped in the Upper Hunter and New England North West regions of the state. Mapping of the remaining areas of the state is currently underway.

The Mining and Petroleum Gateway Panel (Gateway Panel), comprising independent scientific experts, has now been established to review proposed mining or petroleum development and issue gateway certificates.

This means that if you propose to lodge an application for a mining or petroleum development on specified strategic agricultural land at any point in the future, your application must be accompanied by a gateway certificate in respect of the proposed development, or a site verification certificate that certifies that the land on which the proposed development is to be carried out is not biophysical strategic agricultural land.

Site verification certificates

A site verification process has been introduced by the Government to enable proponents of mining and petroleum development, and in some circumstances landowners, to verify if land is classified as biophysical strategic agricultural land.

A proponent or landowner can apply to the Director-General of the Department of Planning and Infrastructure for a site verification certificate confirming that specified land within the area of a development is or is not biophysical strategic agricultural land.

When determining an application for a site verification certificate, the Director-General must have regard to the criteria set out in the Interim Protocol for Site Verification and Mapping of Biophysical Strategic Agricultural Land published in the NSW Government Gazette on 12 April 2013.

In addition, if a proponent identifies that the proposed project site contains land identified as strategic agricultural land in the relevant maps, the proponent can choose to challenge this status by applying to the Director-General for a site verification certificate.  The fee for the site verification certificate is $3,900.

If the Proponent is not the landowner, prior to requesting a site verification certificate, written notice must be provided to the owner of land or an advertisement must be published in a newspaper circulating in the area in which the development is to be carried out within specified time periods.

The Gateway Regulation now requires site verification certificates to be included in s149 planning certificates issued by local councils.

Gateway certificates

A gateway certificate can be issued by the Gateway Panel and is issued as an ‘unconditional certificate’ (if the proposed development meets the relevant criteria) or as a ‘conditional certificate’ (if the proposed development does not meet the relevant criteria).  A gateway certificate is valid for five years.

A conditional certificate will include recommendations of the Gateway Panel to address the proposed development’s failure to meet relevant criteria and the certificate may also recommend that further studies be undertaken.

If a gateway certificate application relates to development on land that has been identified as biophysical strategic agricultural land, the Gateway Panel must refer the application to the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IES Committee) established under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) for advice regarding the impact of the proposed development on water sources.

Changes to the environmental assessment process

Development applications for mining and petroleum projects will now have added complexity, as the gateway process introduces additional formal steps prior to (and in some circumstances during) the environmental assessment process.

If a gateway certificate has been issued for a proposed development, the Gateway Regulation requires the Director-General to address any recommendations of the Gateway Panel set out in the gateway certificate.  The Director-General must also consult with the Gateway Panel when preparing environmental assessment requirements for the proposed development, and have regard to the need for the requirements to assess any key issues raised by the Gateway Panel during the consultation process.

The Gateway Regulation also requires the Director-General to have regard to any gateway certificate recommendations of the Gateway Panel, even if the certificate is issued after a proponent has been notified of environmental assessment requirements.  The Gateway Regulation includes a provision which enables the Director-General to modify those environmental assessment requirements if it is considered necessary.

The Gateway Regulation now also require a consent authority to refer an application for development consent for a mining or petroleum development that is accompanied by a gateway certificate, to the Minister for Primary Industries for advice regarding the impact of the proposed development on water resources.  The Minister for Primary Industries when considering the impacts of a proposed development on water resources must have regard to the Aquifer Interference Policy, and particularly the minimal impact provisions.

Coal seam gas development exclusion zones

The Mining SEPP Amendment also introduces additional coal seam gas development exclusion zones and buffer zones (land within two kilometres of an exclusion zone), which prohibits coal seam gas development on or under certain land.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain

Proposed changes to Environment Protection Licences

In September 2013, the NSW Environment Protection Authority (EPA) released details of the proposed changes to the environmental licensing framework under the Protection of the Environment Operations (General) Regulation 2009 (NSW) (Regulation).  A new risk based licensing scheme (Scheme) is intended to come into effect from 1 January 2015.  Submissions to the EPA on the proposed introduction of the Scheme close on 1 November 2013.

Purpose of the Scheme

The Scheme is designed to provide an incentive for environmental protection licence (EPL) holders to comply with the environmental protection standards set by the EPA.  Under the Scheme, licensees assessed as having a poor environmental performance record will incur higher licence fees because they require a greater level of regulatory intervention, e.g., more intensive monitoring.  This allows for a risk assessment process that is proportionate to the level of environmental risk that the EPL holder generates which does not shift the burden of costs of such activities to the community.

The risk assessment process

The EPA will conduct a risk assessment for each EPL holder in consultation with the holder in order to determine:

• the appropriate environmental management category (A, B, C, D or E in descending order of performance), and
• the appropriate environmental risk level (1, 2, or 3 in ascending order of risk) for their activities.

The category will determine the risk of the EPL holder so that the EPA is able to ascertain the regulatory intervention required for that particular licensee.

To make this determination, the EPA will have regard to three factors:

• the day-to-day operations at the site
• the risk of pollution incidents occurring at the site, and
• the environmental management performance of the licensee.

Furthermore, the EPA will take into account the EPL holders history, including past compliance and non compliance and ways in which the EPL is trying to control or mitigate environmental risks.

Review of risk assessments

Following the initial risk assessment, the process will be repeated after a period of five years, unless:

• an environmental incident or report of non-compliance triggers a review ; or
• an EPL holder requests that the EPA review their environmental performance before that time.

Calculation of the licence administrative fee

The licence administrative fee for each EPL holder will be calculated based on their environmental management category and environmental risk level in accordance with the method set out in Schedule 1 of the Regulation.

Public availability of information

The environmental risk level for each EPL holder will be published on the EPA’s Public Register in order to provide the public with increased access to information on the environmental performance of industrial operators and facilitate greater transparency in regard to environmental assessment processes.

Implications of the proposed amendments

The proposed new scheme for assessing a licence holder’s risk will mean that licensees that rate higher on the risk assessment scale will be more heavily regulated by the EPA in addition to having increased administrative fees.  This includes increased pollutant fee units and increased fees payable for clean up notices, prevention notices and noise control notices.  This means that if your operations have a poor environmental performance record as a result of past conduct, you are likely to be impacted most significantly by these changes.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain

The new Rail Infrastructure Noise Guideline

In May 2013, the NSW Environment Protection Authority (EPA) released the Rail Infrastructure Noise Guideline (RING).  The RING replaces the Interim guideline for the assessment of noise from rail infrastructure projects 2007 (NSW).  The purpose of the RING is to streamline the approval process for rail infrastructure projects and protect the wellbeing of communities from the impacts of projects likely to result in increased noise levels.

Projects subject to the RING

The RING applies at the project assessment stage to:

• new heavy, light and non-network rail lines extending beyond industrial sites
• the redevelopment of existing lines that are in use or disused, and
• land-use development that is likely to generate additional rail traffic on an existing rail network.

Mitigating noise impacts

The RING imposes specific trigger levels for cumulative rail noise on the different types of rail infrastructure projects.  All feasible and reasonable noise mitigation measures must be considered for projects that are likely to exceed the specified levels once they are operational.

Calculating noise levels

The noise trigger levels refer to noise at receiver locations in areas of residential land-use in urban, suburban and rural settings and do not include ambient noise from other locations.

For redeveloped projects the trigger levels take into account noise from existing projects and require the calculation of increases in noise only.

Key differences in the RING from the interim guideline

The EPA has made several changes to the scope of the instrument:

• light rail systems and non-network rail lines are subject to the RING
• there are no exemptions for minor works
• the trigger levels for non-rail land-use developments have been revised
• rail track owners are required to assess the magnitude of any increase in noise levels over a 15 hour day time period and a 9 hour night time period where residential development encroaches on rail lines, rather than for each hour, and
• projects which exceed the specified triggers are now required to reduce noise levels towards the trigger levels.

Implications of the RING

If you are the proponent of a rail traffic-generating development or non-network rail lines you must consider whether your development will exceed the specific noise and vibration trigger levels.  If these noise levels are likely to be exceeded when the rail project is operational, you must consider ‘feasible’ and ‘reasonable’ noise mitigation to reduce the noise impacts towards the trigger levels and address these mitigation measures in your environmental assessment.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain

New Aboriginal Cultural Heritage Act proposed

Major reforms to Aboriginal cultural heritage (ACH) legislation have been proposed by the NSW Government.  A new Aboriginal Cultural Heritage Act (ACH Act) will replace Part 6 National Parks and Wildlife Act 1974 (NSW) (NPW Act) which relates to Aboriginal objects and places.  The proposed ACH Act will maintain the existing provisions relating to Aboriginal objects and places, and will incorporate new provisions relating to cultural values which are not currently recognised in the NPW Act.  The closing date for public submissions on the reforms is 14 February 2014.

The intention is to update and contemporise the existing legislation, aiming to provide clarity and certainty for Aboriginal people in NSW and to proponents.  The ACH consultation process for major developments will be streamlined and the code-based standards for assessing ACH will result in reduced delays, as there are clear time frames for consultation, development of assessment plans and finalising Project Agreements.

Streamlined process

The introduction of Local ACH Committees will supersede the current requirement for proponents to consult with multiple registered Aboriginal parties.  Each Local ACH Committee will comprise of a maximum of ten nominated people, who have an identified connection to country.  A similar process has been successfully implemented under the Aboriginal Land Rights Act 1983 (NSW), which outlines a process of identifying people who have the association with and authority to speak for Country.

If a project crosses multiple Local ACH Committee boundaries, representatives will form a Regional Project ACH Committee.  The aim is that Local and Regional Project ACH Committees will become a ‘one-stop-shop’ for projects, and will work with proponents to negotiate and agree on outcomes, on behalf of the wider Aboriginal community.

Proponents will also be assisted by the introduction of Local ACH Maps.  These will show areas of high, low and no ACH value, as well as areas where knowledge is incomplete.  Each Local ACH Committee will map where these values are within their region.

A Plan of Management for each Local ACH Map will also be developed, which will outline the specific strategies for managing each type of ACH value identified in the map.  Key ACH priorities will be identified and can be incorporated into individual Project Agreements.  Project Agreements will be negotiated between the proponent and the local ACH Committee, and will be required for certain activities in areas which have been mapped as having incomplete or high ACH values.

Dispute resolution and penalties

It is intended that the proposed ACH Act incorporate dispute resolution processes, as well as appeal processes, however these are still being developed.

Amendments to the NPW Act in 2010 introduced heavy penalties for causing harm to ACH objects and places.  Those penalties, along with the existing offence and defence provisions will be included in the new ACH Act.  New penalties have also been proposed for failure to comply with a Project Agreement and for failure to comply with consultation requirements.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain