The Queensland Government appears to be moving away from the most basic of environmental principles, the 'polluter pays' rule. While businesses will benefit, local councils will be left to bear the cost of environmental impacts from polluting activities.
The State Government is proposing to deregulate a raft of potentially polluting industrial and agricultural activities known as ‘environmentally relevant activities’ or ERAs. These include service stations and other chemical storage businesses, concrete batching and poultry farms.
Currently, these activities are regulated by councils which each year collect significant revenue in the form of annual licence fees. Councils will lose this important source of revenue if the reforms go ahead.
Deregulation would also mean councils can not impose conditions on ERA type activities to manage environmental impacts including conditions requiring periodic environmental inspections.
The only foreseeable way councils could claw back some control over ERA type activities would be to regulate them as a defined use in a planning scheme. Even then there is the issue of whether ‘environmental’ conditions could be attached to a development approval.
With less oversight, it could be expected that some ERA operators may lapse in actively managing their pollution output, resulting in rising local pollution levels and increased complaints from the community.
Like a domino effect, higher pollution levels could also manifest as larger environmental impacts some time in the future.
Most councils can ill-afford the expense of managing additional environmental impacts and complaints. Against the background of reduced licence fee revenue, councils may be forced to look at other revenue sources, such as rate increases, to fund its compliance officers.
Councils should be thinking now about how best to manage ERA type activities if the reforms go ahead.
Councils have two choices. First, they can specifically regulate ERA type activities by amending their planning schemes. This, of course, may take some time to implement from both a policy and practical perspective.
Second, they can rely upon the regulatory powers under the Environmental Planning Act to investigate nuisance complaints and take enforcement action. Practically, this raises a legal issue about whether references to environmental/amenity issues (noise, dust and odour etc) in development approvals ‘authorise’ any such nuisance, an outcome which may be unintended.
Neither of these two alternatives is ideal.
The purpose of a development condition is to ameliorate adverse impacts of a development. But when does a condition relate to an environmental matter versus a traditional planning matter, namely amenity? The line between the two has become increasingly blurred.
Regulating ERA type activities via local planning schemes is unlikely to be effective as conditions imposed under the Sustainable Planning Act requiring operators to use advanced technology and equipment may be seen to be unreasonable and, to the extent they may require upgrades as technology advances, uncertain. In addition, the enforcement tools under the SPA are not on par with those under the EPA.
Alternatively, a council may not seek to regulate amenity issues such as odour and noise via its local planning scheme but rely on the general environmental duty under the EPA. However, to stop dealing with issues which have traditionally been dealt with by conditions in a development approval may cause considerable uncertainty for both operators and the broader community. For example, allowing an operator to “pollute” within certain parameters, for example, whether that be allowing noisy operations to occur within certain hours; or allowing a poultry farm that meets requirements to operate in a rural setting, sets a measureable bar for community expectations.
Without the certainty of a development approval or an environmental authority, there is a distinct possibility that complaints from communities will increase.
The Government must amend the EPA and the SPA
If the State proceeds with deregulating these ERAs then it should, at the very least, amend the EPA to:
- clarify councils’ jurisdiction regarding environmental matters;
- ensure that powers of entry for environmental nuisance matters are not stripped away from councils;
- include another offence provision regarding compliance with codes of practice;
- ensure that councils do not inadvertently authorise environmental nuisance to occur through a development condition.
The State Government should also amend the SPA to give some powers to councils to:
- require an evaluation where it is suspected that equipment or infrastructure is failing and this may result in environmental nuisance or cumulative environmental impacts; and
- unilaterally modify conditions of approval which are intended to “preserve” amenity. However, such a power should be limited to those situations where the change is reasonably required.
Councils can take action
Councils should begin reviewing ‘use’ definitions, levels of assessment and codes in their planning schemes to ensure that ERA activities/uses have some form of ‘environmental’/amenity oversight and regulation. Otherwise activities such as any new petrol stations, motor vehicle workshops incorporating spray painting, poultry farms, asphalt manufacturing and the like may be left completely unregulated, save the operator having to comply with the general environmental duty under the EPA.
A type of development condition worth considering is limiting how long a lawful use may continue or works remain. In this context, “works” captures equipment. Accordingly, where there is:
- a high risk activity;
- the use involves a new, untested technology which warrants a trial period;
- there have been recent technological advances with an expectation for more to follow; or
- infrastructure used in the type of use has a limited life expectancy, for example, underground pipes
it may be appropriate to limit the use or equipment to a reasonable period, say, 10 or so years to allow the regulator to revisit the work practices and technology used in the activity to ensure that it meets current standards.
Submissions on the State’s proposal to deregulate most devolved ERAs are open until 26 October 2012.
An opportunity may also arise to make submissions on any draft regulations, guidelines and codes which may seek to address some of the issues identified above.