Environment Law Assignment: Australian Planning and Environmental Law

This assignment explores the relationship between planning and environmental law in Australia. It begins by establishing the significance of environmental protection through common law and statutory provisions, highlighting the alarming rate of environmental degradation. The paper examines the interplay between environmental law and planning law, using case law like Associated Minerals Consolidated Ltd v Wyong Shire Council, and legislation such as the Planning and Development Act 2005. The assignment also delves into strategic environmental planning at state and local levels, emphasizing the importance of Environmental Impact Assessments (EIA) and the role of permits and approvals in land clearing and construction, as illustrated in a case study involving Putri and her tempeh production project. The analysis covers the types of permits required, the process for obtaining them, and the factors considered by regulatory authorities in granting approvals, underscoring the importance of environmental protection in resource management and land development.

Running head: ENVIRONMENT LAW
Environment Law
Name of the Student
Name of the University
Author Note

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Question 1
In Australia there has always been a strong significance provided to the concerns related to the
environment. Protection is provided to the environment is through both common law as well as
statutory provisions. The rate at which environment is degrading has become alarming since the
last two decades. Therefore there is a particular need to provide increased significance to
environment related concerns. The thesis of this paper is that there is a strong relationship
between planning and environmental law in Australia. The statement would be established by the
paper through describing the relationship between two areas of law using relevant legislation and
case law.
In the case of Associated Minerals Consolidated Ltd v Wyong Shire Council1 the defendant had
been provided with the mining lease according to the provisions of the Mining Act 19922.
However it had been provided by WCS that it is mandatory for the mining companies to get the
approval of the council in form of a consent with respect to the Council Planning scheme in
order to successfully carry out its mining operations. An argument had been provided by the
defendant that they had been provided with all the required authority under the mining lease
along with the extraneous legislations in relation to extracting minerals and thus, through the
legislation and the lease any need of obtaining future permission from the planning scheme of
the local government had been overridden. In this case it had been provided by the court that in
situations where there is a dispute between (A) a person who has the wish of protecting the
environment and the public from pollution created through extracting minerals by the process of
mining as it evolves destruction of environment and (B) and an organization which has the wish
of carrying out operations to extract minerals, the court would order the organization to comply
1[1975] AC 538
2 Mining Act 1992 (Cth)

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with the orders of the council. It is still the obligation of the organization to comply with all the
provisions of the local council in relation to environment. The reason which court provided for
its decision was that the purpose of the Mining Act was to provide permission for mining with
respect to a specific condition whereas the object of the planning act was to protect the
environment. Although there is a dispute between the provisions of the legislations it can be
resolved as there is no dispute between the purposes of the legislations. The case signified the
importance of environment law in Australia and also provided impliedly but not expressly that
where there is a dispute between two legislation the one which is in relation to public interest
would prevail.
The process through which the government prepares policies and plans with respect to
establishing a structure by which decisions related to managing resources and development of
land is known as strategic environmental planning. The primary planning legislation in WA is
the Planning and Development Act 20053. The objective of the legislation primarily encompasses
environmental, social, economic aspirations which include ecologically sustainable development.
It has been stated by the legislation that it purports to promote an effective and efficient use of
land in the state. The promotion of sustainable use and development is the state is also one of the
fundamental purposes of the legislation. The process of planning in WA is carried out on a local,
regional and state level. However the legislation does not specifically define the process of
sustainable development which provides the court a wide degree of interpretation power in
relation to the term. Strategic Action Planning (SAP) is mostly used by the states in order to
formulate its policies and rules related to planning and environment. The relevant minister is
mostly provided the power to govern the policies of the state. The state authority objects to
3Planning and Development Act 2005 (WA)

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address the problems related to planning which are significant to the state with respect to various
point of views such as protecting cost line areas and natural feature. The purpose of the authority
is also to managing specific resources which includes native vegetation and water along with
specific problems related the environment protection of particular ecosystem like habitats,
individual species and wetlands such as Koalas.
The processes of strategic environmental planning also provide certain advantages. The process
is conducted at state government level which means that implementing the objectives of the
government are not left to the local bodies discretion. A consistent approach is provided by
environmental planning at state level which ensures that common standards are applied with
respect to a specific problem. Some discretion may still be vested in the local council with
respect to a proposed development, however as a result the strategic action planning the council
would need to apply the procedure and provisions provided through the state plan. Mostly all
significant planning proposals have to go through a environmental impact assessment in
Australia if it is found that such proposals may have any impact on the environment. The
planning schemes in the state of WA include regional planning schemes and local environment
plans. The regional planning scheme is related to making a place for the use of land, generally
referring to combination of local boundaries instead of natural features. In case of local
environmental plans the use of land is guided in its progress to local government level. The
objectives are achieved by them through dividing the lands into zones and then preventing the
use by granting discretion in relation to specific zones. However there is a distinction between
environmental assessment and environmental impact assessment. EA is initiated at all level of
planning and land development where as the EIA takes place in relation to significant
environmental proposals and is governed by the Environment Protection and Biodiversity

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Conservation Act 19994 and the Environmental Protection Act 19865. The procedures related to
both resources and land legislations, mandates the Environmental Assessment of any proposal
for granting license and approval for the development for instance in case of exploiting natural
resources. The procedure related to the assessment of schemes referred to power under the
legislation is set out in part 4 division 3 of the EPA.
An argument can be provided that the framework for the use of land or environmental planning
is significantly common means of protecting the environment, specifically at a development
particular level or a local strategic level as controls of planning cut across all areas related to the
management of environment. it is also a structure through which the public are provided a
significant opportunity to persuade planning at local and state level along with the power to
comment and appeal on development applications. This is very helpful as the process of EIA is
related to only significant development proposals.
Thus the impact on environment related to both resources and land developments which
are not significant to target a process of formal Environmental Impact Assessment are solely
dealt with either the relevant resources or planning legislations. However it has to be provided
that the assessment process under the mining6 and planning act7 are not included in these actions.
Any process of planning requires the use of natural resources such as land and water. The
purpose of the environment legislation is to provide protection to such resources from being
exploited and overused. Therefore automatically the relationship between Environmental law
and planning law is created. In addition it has been seen through the above discussed case that
4 Environment Protection and Biodiversity Conservation Act 1999 (Cth)
5 Environmental Protection Act 1986 (WA)
6 Mining Act 1992 (Cth)
7 Planning and Development Act 2005 (WA)

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the environmental protection provisions are more than often provided relevance over other
provisions of planning.

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Question 2
(a). AdvisePutriwhether anypermitsor approvalsare required to either clear the land or to
construct the processing plant?In providing youradvice, you have been instructed to
specificallyaddressthe followingissues:
I. the typesof permitsor approvalsrequired and why (1 mark);
In the given situation Putri is planning to clear the newly acquired plot in relation to
his proposed project of producing, manufacturing and selling tempeh. Section 51E of the EPA a
clearing permit is required to proceed with a clearing project unless the circumstances provided
in schedule 6 of the EPA tales place. Putri may seek an area permit as provided by section 51E
(7)(c)8. A work approval also need to be taken under section 54 of the EPA as the process of
manufacturing may case emission and noise as stated by the planning officer9. Not taking an
approval and the process causing such problem may account to an offence. A license also has to
be obtained by Putri under section 57 of the EPA as the process may include emission as stated
by the planning officer10.
II. in relation to the clearing and filling of the land with top soil, whether
permitswillberequired for allof the clearing or onlysome of it (1 mark);
It has been provided by the scenario that that a Putri plans to clear all of the land in
relation this project which also include the asbestos riddled house. It has been provided by section
51E that clearing permits are provided in relation to an area or a purpose. In relation to area
clearing permit permission is provided with respect to clearance activity in a specific areas or a
8 Environment Protection Act 1986 (WA) at section 51E
9 Environment Protection Act 1986 (WA) at section 54
10 Environment Protection Act 1986 (WA) at section 57

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group of areas. Purpose clearing permit is provided towards clearing activity with respect to a
specific purpose. In this case although Putri wants to clear the whole land he has to seek purpose
clearing permit and area clearing permit as the soil is required for the purpose of filling the land11.
III. which person or entitywillbe required to obtain the permitsorapprovals (1 mark);
Permits and approvals are not provided to anyone who applies for it. They can be
provided to either an individual or an incorporated company. The application is can only be
made in relation to an area or purpose permit. The permit as per section 51E(2) (a) (1) is
given to the owner of the land on which the project of cleaning has been proposed. The
application can also be made by a person who is working on behalf of such owner. In
addition any person who contends the CEO that he is likely to be the owner of the above
discussed land can also obtain permission under this section. The same rules are also
applicable in relation to an approval where the owner of the operations have to make an
application under section 54 of the EPA. Thus as putri is going to be the owner of the land he
would be required to get permits and approvals.
IV. What steps will be necessary to take and to apply for the permits or approvals (2
mark);
Section 51E of the EPA also deals with the provision in relation to the application of
permits. According to the section the application has to be made in the form and manner as
provided by the CEO. The application should specify whether the application is in relation to
clearing a specific area or a purpose12. The fees as determined in relation to the application by the
application has to be paid by Putri. The application also has to be supported by maps
11 Environment Protection Act 1986 (WA) at section 51E
12 Environment Protection Act 1986 (WA) at section 51E (1)

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management plans and other proof and data asked by the CEO and also the summary of
information and documentation. Advice would be provided by the CEO to the applicant that the
application has been received if it is made in accordance to the discussed format. The application
has to be advertised in the provided way. As per section 54 the application of an approval also
has to be provided in manner and form approved by the CEO which has to be accompanied with
the required fees. The approval also requires to be supported by documents as in section 51E of
the EPA. The application for approval also has to be advertised by the applicant as per section 54
(2a) EPA13.
IV. the matters which will be considered by the regulatory authority in deciding whether
to grant any permit or approval applied for (1 mark);
The process in relation to granting of a permit or approval is provided in section 54 and
51 e of the EPA. The CEO has to consider all comments which have been received during the
specified period as provided by any person or public authority from whom or which comments
had been invited. According to subsection 4 B and C the CEO has to invite any public authority
or person having interest in the proposal to make comment on the licence to be granted. If a
person is not yet an owner of the land an undertaking has to be provided to the CEO so that he
can provide the permit to such person. Section 51F states that any duty is not required to be
performed by the CEO if a referral has been made under section 38 of the act to the authority.
Thus in this case CEO would consider matters which have been complaint of by the public in
relation to Dust and Sound by the project.
13 Environment Protection Act 1986 (WA) at section 54 (2a)

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V. The duration of any permit or approval granted by the regulatory authority (1 mark);
and
Section 51 G of the EPA provides provision in relation to the duration of permits related
to clearing. In case of an area permit the permit is valid for a period of 2 years. In case of a
purpose permit the permit is valid for a period of 5 years14. This period starts from the day it has
been granted unless another period is provided by the permit. The project would therefore be
provided with a permit of 2 years in relation to the clearing of land. Duration of approval and
licence is provided in section 63 of the EPA. A work approval or licence according to the section
is valid until it has been prescribed in such approval or licence. Therefore if a licence is granted
it would be valid for a period as prescribed by the approval or licence15.
VI. The conditions, if any, which be attached to any of the permits or approvals (1 mark).
The condition which are attached to a licence or work approval are provided in section 62
of the EPA. Some kinds of conditions as provided by Section 62A of the EPA include operating,
constructing or designing any plant or facility in accordance with the particular criteria, operating
or installing any equipment for controlling, monitoring on preventing environmental Harm or
pollution in compliance with specified criteria and taking particular measures for the cause of
reducing tendency of environmental harm or pollution16. Similar conditions have been provided
in section 51 H with respect to clearing permits. Some kinds of conditions are provided in
14 Environment Protection Act 1986 (WA) at section 51G
15 Environment Protection Act 1986 (WA) at section 63
16 Environment Protection Act 1986 (WA) at section 62A

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section 51I of the EPA17. They are mostly similar to the conditions as discussed above related to
causing pollution and environmental harm. These condition emphasize on the protection of
vegetation and land. Therefore in relation to the proposed manufacturing producing and selling
project Putri will need to abide by these conditions if permits and approval is granted.
VII.
(b) You have been instructed to assume that a State Environmental Impact Assessment (EIA)
will be required. In relation to the State EIA process (you have been specifically instructed not to
provide advice concerning the Commonwealth EIA process). Your client has requested that you
provide them with advice concerning the following issues:
i. who may refer the proposal to the Environmental Protection Authority (EPA) for
assessment (1/2 mark) ;
The provisions in relation to the proposal are provided in section 38 of the EPA.
According to the section any person can make a referral of proposal to the authority as per
subsection (2) and (5). According to subsection 2 any proponent of the proposal under an
assessed scheme may refer a proposal to the authority18.
ii. the type of assessment process which is likely to be used (giving reasons for your answer
with reference to the Environmental Protection Act 1986 –Environmental Impact Assessment
17 Environment Protection Act 1986 (WA) at section 51I
18 Environment Protection Act 1986 (WA) at section 38

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(Part IV Division 2) Administrative Procedures 2010) and a broad outline of the nature of that
process (1 mark);
Section 45 of the EPA provides procedure which is required for deciding whether a proposal
should be implemented. If the decision making authority come to an agreement with the
Minister. If the decision making authority agree with other decision making authorities in case
one of them is not the Minister. In this case there is no agreement between the planning officer
and the environmental specialist. Applying the provisions of this section in the case of Putri it
can be provided that the issue has to be escalated to the Minister. In case the Minister also does
not able to get to a decision then the Minister Mein escalate the issue to the Governor.
iii. to whom must the advice be communicated to (1/2 mark);
The advice must be communicated to the authority, every other decision making authority, the
proposals proponent and the person by whom the proposal was referred as per section 45(5)(a)19
19 Environment Protection Act 1986 (WA) at section 45(5)(a)