24 April 2024
13 min read
#Government, #Property, Planning & Development, #Environmental, Social and Governance (ESG)
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Climate-related risks will affect most stakeholders in a property transaction and government must consider these inherent risks prior to beginning a new infrastructure project, when planning any demolition works, before redeveloping parcels and rezoning land. When considering any property transaction, government departments should be aware that there is an evolving duty of care owed by lawyers to the department to advise on these climate-related risks.
In this edition, we examine two types of climate-related risks (physical and transition risks) associated with purchasing and developing land during a climate crisis and demonstrate how lawyers can mitigate these risks to ensure the success of future projects.
Physical risks are real and tangible impacts of climate change, such as rising sea levels, coastal erosion and extreme weather events like floods, hailstorms, bushfires and heat waves. These risks drastically impact land and thus have the ability to stagnate development plans.
Before commencing new infrastructure projects or land redevelopments, parties must ensure proper legal due diligence is carried out. This process involves seeking advice on the unfolding implications of climate change and its consequences on parcels of land subject to any development works. Beginning works in an area affected by coastal erosion or on bushfire prone land without conducting comprehensive climate-related due diligence could directly impact the value of the land and its insurability, rendering the land unfit for its intended development purpose for which it was initially purchased or acquired.
Transition risks are changes in the behaviour of the government, regulators, commercial institutions and the community as a whole. These risks are institutional behavioural changes which may arise as a result of new legislation, regulation, targets or renewed customer and supplier expectations. For example, transition risks may arise as a result of the government’s Net Zero Plan and 2035 emission reduction targets.
In today’s climate conscious society, governments and lawyers alike must be aware of current regulatory and legislative regimes concerning climate change and emerging climate regulations. Obtaining advice relating to transition risks will ensure government departments are aware of any upcoming reporting requirements which may emerge as a result of new regulation.
Being conscious of transition risks is the key to understanding how government development and infrastructure projects will be affected. For example, transition risks may impact land value and increase the anticipated operating costs.
Before developing or purchasing land, government departments must undertake extensive property due diligence. The Law Society of NSW’s ‘Climate Change Practitioner Guidance’ is a useful resource for government lawyers and the legal profession to understand their evolving duty of care when providing legal advice related to climate change issues. Lawyers should restrict their advice to areas within their expertise – for in-house lawyers, this may mean obtaining external legal representation to offer counsel on their behalf.
Climate-related advice should take into account the essence and overall purpose of the property transaction. This includes considering the government’s operations and interests, an analysis of climate risks disclosed in transaction documents, limitations of disclosure obligations in relation to climate risks and how they impact land use (such as accessibility, insurability and availability of capital investment).
If you have any questions about this article or require assistance with assessing climate-related risks of a prospective property transaction, please get in touch with a member of our team below.
Authors: Cameron Sheather & Annie Papageorgiou
Freight Policy Reform Program
The NSW government has introduced the Freight Policy Reform Program will ultimately deliver a comprehensive strategic reform agenda and action plan to optimise freight transport in NSW. This reform program will involve policy reviews relating to different parts of the freight system, particularly in relation to road, rail and ports. Read more here.
Federal bulk-billing push being ‘killed off’ by states increasing tax take on GP clinics, doctors warn
The federal government's $3.5 billion attempt to revive bulk billing rates is being "killed off" by states pocketing the money instead, doctors have warned. The government in November tripled the payment GPs receive to bulk bill patients in an effort to reverse falling rates of bulk billing – where practices accept a fee from Medicare as full payment and charge nothing to patients (22 April 2024). Read more here.
NSW Government package to support workers and shop owners at Westfield Bondi Junction
The NSW Government is providing a package of workplace resources for workers and businesses at Westfield Bondi Junction. The NSW Government has been in constant contact with Westfield management as well as the Australian Retailers Association and the retail worker’s union (SDA) to help ensure support is responsive and coordinated (19 April 2024). Read more here.
Fresh focus for our regions
The NSW Government has today announced changes to the way the Government will serve regional communities, with an enhanced focus on protecting biosecurity, supporting agriculture, fisheries, forestry and mining as well as broader regional development. From 1 July 2024, the Department of Regional NSW will be re-named the NSW Department of Primary Industries and Regional Development. This reflects the twin objectives of growing our primary industries through greater focus on extension services, research and development and supporting regional economic development. NSW Premier Chris Minns states that “these changes are an important reflection of the NSW Government’s commitment to supporting regional communities to thrive” (19 April 2024). Read more here.
Experience tourism at the centre of visitor economy growth strategy
NSW is leading Australia's post-pandemic visitor economy rebound, surpassing $50 billion in visitor expenditure for the first time in history in the year ending December 2023. The NSW Government has ambitious plans to drive that economic growth to even greater heights. To unlock our state’s full potential, the Visitor Economy Strategy 2030 is being reviewed and evolving to showcase the best of NSW to the world by focussing on the diverse experiences on offer for visitors (19 April 2024). Read more here.
Inaugural appointees to the restored Industrial Court of NSW
The NSW Government has endorsed three highly experienced barristers as appointees to the new Industrial Court of NSW. The Industrial Court, established last year by the Industrial Relations Amendment Act 2023, will be the specialised venue for industrial relations in NSW, resolving industrial disputes, and dealing with work health and safety matters. Ingmar Taylor SC, a nationally recognised expert in employment law and work health and safety, will be appointed President of the IRC and a judge of the Industrial Court. David Chin SC, a specialist in work health and safety, industrial, employment and discrimination law, who co-authored The Modern Contract of Employment, will be the IRC’s Vice-President and a judge of the Industrial Court. Jane Paingakulam, who has practiced primarily in criminal law and provided advice to government agencies on public sector issues, will be the IRC’s Deputy President and a judge of the Industrial Court. The three will now be formally recommended to the Governor for appointment (18 April 2024). Read more here.
AAT Bulletin No. 08/2024
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions. The Bulletin also regularly includes a sample of decisions recently published in the AAT’s Migration & Refugee Division and Social Services & Child Support Division. It occasionally includes information on legislative changes that affect the AAT (22 April 2024). Read more here.
Have your say – Freight Policy Reform Program
The NSW government has published a Consultation Paper on the Freight Policy Reform Program, which outlining the freight task in NSW at present, the key drivers of change, strategic policy issues for consideration and poses questions for stakeholder input. Submissions on the Consultation Paper are open until 31 May 2024 and will be considered to inform and shape the Freight Policy Reform Program (18 April 2024). Read the consultation paper here. Access the media release and survey here.
Have your say – NSW Visitor Economy Strategy Review
The NSW Government is reviewing the NSW Visitor Economy Strategy to reflect the Government's focus on experience tourism and to create alignment with the new Arts, Culture and Creative Industries Policy and other whole-of-government policies and programs. They are inviting visitor economy stakeholders to contribute their insights and ideas to the review (22 April 2024). Read the NSW Visitor Economy Strategy. Access the survey here.
Have your say – Review of the Crimes Act 1900
The Department of Communities and Justice is seeking feedback on the statutory review of Part 4AF of the Crimes Act 1900. The department is seeking submissions on whether the policy objectives of Part 4AF of the Crimes Act 1900 remain valid, and whether the terms of Part 4AF of the Crimes Act 1900 remain appropriate for securing those objectives. The department will also be considering the impact of the NSW Supreme Court’s decision in Kvelde v State of New South Wales [2023] NSWSC 1560 on section 214A. Access methods for submission here.
Lin v Commissioner of Victims Rights [2024] NSWSC 423
STATUTORY INTERPRETATION – application to set aside restitution order made under s 59(2)(b) of the Victims Rights and Support Act 2013 (NSW) – whether proceedings in which plaintiff was convicted and sentenced for assault were civil or criminal – section 3 of the Civil Procedure Act 2005 (NSW) – definition of “civil proceedings” – definition of “criminal proceedings” – proceedings were correctly characterised as criminal – challenged order cannot be set aside – proceedings dismissed.
Civil Procedure Act 2005 (NSW), s 3; Crimes Act 1900 (NSW), s 59; Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3-5, 9-10; Victims Rights and Support Act 2013 (NSW), ss 4, 17, 20, 23, 54, 57, 59.
Jeray v Blue Mountains City Council [2024] NSWCATAP 66
CIVIL PROCEDURE – leave sought to appeal from interlocutory decisions – procedural fairness – scope of duty of Tribunal to assist self-represented party.
Civil and Administrative Tribunal Act 2013 (NSW); Government Information (Public Access) Act 2009 (NSW).
Goldmate Property Luddenham No. 1 Pty Ltd v Transport for NSW [2024] NSWLEC 39
COMPULSORY ACQUISITION – objection to compensation for compulsory acquisition pursuant to s 66 of Land Acquisition (Just Terms Compensation) Act 1991 – determination of public purpose within s 56(1)(a) – relevant purpose broadly construed to include the Western Sydney Infrastructure Plan, the Western Sydney Airport and attendant economic opportunities – rezoning of land integral to public purpose – statutory disregard pursuant to s 56(1)(a) – determination of market value of land – compensation for injurious affection – claim for disturbance – costs.
Land Acquisition (Just Terms Compensation) Act 1991 (NSW); Land and Environment Court Act 1979 (NSW); Roads Act 1993 (NSW).
Contara Pty Ltd v Sydney Metro; Alogdellis v Sydney Metro [2024] NSWLEC 38
CIVIL PROCEDURE – application to set aside subpoenas to produce documents – subpoenas lacking legitimate forensic purpose – oppression.
Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55; Supreme Court Rules 1970 (NSW), Pt 37 r 9 (repealed); Uniform Civil Procedure Rules 2005 (NSW), rr 33.4, 33.11.
Westview Business Park Pty Ltd v Valuer-General of New South Wales [2024] NSWLEC 37
VALUATION – valuer – comparable sales – appeal against determination by Valuer – general of land value – appeal dismissed.
Dubbo Regional Local Environmental Plan 2022; Uniform Civil Procedure Rules 2005 (NSW), Pt 31, Div 2, r 31.26; Valuation of Land Act 1916 (NSW), ss 6A, 37.
FZU v University of NSW [2024] NSWCATAD 99
ADMINISTRATIVE REVIEW – Privacy and Personal Information Protection Act – jurisdiction only to review conduct which is subject of internal review application – meaning of “collection” – meaning of “use” – whether information used for a purpose directly related to the purpose for which it was collected – whether information disclosed for a purpose which is directly related to the purpose for which it was collected.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Privacy and Personal Information Protection Act 1998 (NSW).
Dasari v Commissioner of Police, NSW Police Force (No 2) [2024] NSWCATAD 101
ADMINISTRATIVE LAW – administrative review – Government information – whether the Tribunal should exercise a discretion to make non-publication orders that were not sought prior to the determination of the application for administrative review.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Government Information (Public Access) Act 2009 (NSW); Health Records and Information Privacy Act 2002 (NSW); Privacy and Personal Information Protection Act 1998 (NSW).
Regulation and other miscellaneous instruments; and
Public Holidays Amendment (Lismore City Council) Order 2024 (2024-127) – published LW 19 April 2024
Environmental Planning Instruments
Broken Hill Local Environmental Plan 2013 (Map Amendment No 1) (2024-122) LW 12 April 2024
Hornsby Local Environmental Plan 2013 (Amendment No 14) (2024-123) LW 12 April 2024
Maitland Local Environmental Plan 2011 (Amendment No 36) (2024-124) LW 12 April 2024
Wollondilly Local Environmental Plan 2011 (Map Amendment No 9) (2024-125) LW 12 April 2024
Oberon Local Environmental Plan 2013 (Amendment No 7) (2024-130) LW 19 April 2024
Lismore Local Environmental Plan Amendment (Emergency Work and Repairs) 2024 (2024-129) LW 19 April 2024
Lake Macquarie Local Environmental Plan 2014 (Map Amendment No 11) (2024-128) LW 19 April 2024
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.
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