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CHALLENGE TO APPROVAL OF LAND CLEARING PERMIT ON BASIS OF CLIMATE CHANGE

Glen

In November 2017, the Northern Territory Environmental Protection Authority (EPA) recommended to the Pastoral Lands Board (PLB) to grant the largest single permit for land clearing in the Northern Territory. The clearing permit was sought in order to clear 20,431 ha of land at the Maryfield cattle station, south of Darwin for pasture improvement for the grazing of stock (Project).

The Project is proposed to be staged over a five year period with aerial sowing of pasture mix followed by felling of vegetation using bulldozers and chains. Felled vegetation is proposed to be progressively burned and levelled.

In recommending the grant of the permit, the EPA decided that the Project did not require an environmental impact assessment (EIA). The EPA’s decision to not require an EIA has been criticised on the basis that it did not take into account the Project’s “considerable contribution to the NT’s annual greenhouse gas emissions as a result of the vegetation clearing.”

NT climate change case.jpg

The EPA explained that no consideration was given to greenhouse gas emissions because there is no government policy to guide decision making. Further, the Project’s contribution to greenhouse gas emissions in the national context, would not constitute a ‘significant impact’ on the environment, and thereby require an EIA.

The EPA’s recommendation and the PLB’s decision to grant the permit was challenged in the NT Supreme Court by the Environment Centre Northern Territory on a number of grounds, including:

(a)  the Project’s likely emissions would amount to 18.5 per cent of the Northern Territory’s total annual emissions for 2015, and even if the Project would not cause a significant impact on global temperature rise, that did not mean that the emissions were acceptable and did not require assessment;

(b) the absence of a government policy on greenhouse gas emissions does not mean that emissions resulting from the Project can be ignored;

(c) in the past the EPA has required an EIA for applications that proposed clearing smaller areas of land than the Project’s proposal; and

(d) the EPA recommended to the PLB, which is the final decision maker, that the clearing be approved subject to a number of conditions. Subsequently, the PLB approved the clearing, but ignored a number of those conditions.

This Supreme Court challenge is considered to be the first case in the Northern Territory to challenge the approval of land clearing action on the basis of climate change. The challenge has also drawn attention to the limitations in the current legal and policy frameworks for land clearing and climate change in the NT.

This case raises significant questions and the Court’s decision is awaited with interest. When should a proposal to clear native vegetation trigger an environmental impact assessment? To what extent are the greenhouse implications of the clearing factors in assessing a clearing proposal? The Court’s decision has yet to be published.