In the Zone - October 2025

Welcome to our latest edition of 'In the Zone'.

This edition covers a variety of important topics that are having a material impact on our work. There continues to be developments in how the Biodiversity Conversation Act 2016 (NSW) is applied, and there is likely to be more interesting cases on this subject as the regulatory reform in response to the Henry review comes into effect.

There is also a significant focus in this edition on the law associated with the regulation of greenhouse gas emissions. This is a dynamic area where we are seeing significant developments at a local, state, Commonwealth, and international level, and the Federal government’s recent announcement of Australia’s 2035 targets may see further changes in this area. These developments will have ongoing impacts for projects with significant greenhouse gas emissions and emphasise the need for applications for those projects to be carefully prepared and properly justified.

We hope you enjoy this edition of ‘In the Zone’. Please feel free to reach out to us if there is any issue of particular significance you would like to discuss.

Land and Environment Court

Confirmation that assessment of biodiversity impacts is principally done under the Biodiversity Conservation Act 2016 where it applies

Vigor Master Pty Ltd v Northern Beaches Council [2025] NSWLEC 1520 by Dixon SC (21 July 2025)
Read the full decision here.

Background

This case involved a Class 1 appeal against Council’s refusal of a DA for a senior’s living development in Narraweena. The site and surrounding privately owned bushland were mapped Category 1 Bushfire prone land. Accordingly, the DA proposed clearing of vegetation to establish an asset protection zone (APZ), which triggered the assessment of biodiversity impacts under the Biodiversity Conservation Act 2016 (BC Act).

Issues

Council contended in the appeal that the ’expansive area of tree removal’ proposed by the development was not consistent with the desired future character of the area under the provisions of the Warringah Local Environmental Plan 2000 (WLEP 2000). In particular, it was submitted that the following provisions of the WLEP 2000 precluded the grant of development consent: 

• Clause 56 (Retaining distinctive environmental features on sites), which provided that ’development is to be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land’, and
• Clause 58 (Protection of existing flora), which provided that ’development is to be sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation - and on remnant native ground cover species.

The Council further argued that the proposal was contrary to cl 12(3)(b) of the WLEP 2000 which required the consent authority to be satisfied that the development was consistent with the B2 Oxford Falls Valley Locality Desired Future Character Statement (Statement). The Statement required the following (among other things):

• ‘Future development will be limited to new detached style housing confirming with the housing density standards set out below and low intensity, low impact uses’, and
• ‘Buildings will be located and grouped in areas that will minimise disturbance of vegetation’.

The Applicant argued that the analysis of biodiversity impacts was the exclusive domain of Part 7 of the BC Act and prevailed over any inconsistent provisions in the Environmental Planning & Assessment Act 1979 (EPA Act) and any instrument made under that Act including the WLEP 2000. It argued clauses 56 and 58 of the WLEP 2000 were design principles only and did not require avoiding impacts on biodiversity.

Decision

Senior Commissioner Dixon accepted the Applicant’s argument, finding that there was inconsistency between the WLEP 2000 provisions and the BC Act, and that the provisions of Part 7 of the BC Act prevailed.

The Senior Commissioner held that the WELP provisions were inconsistent on the basis the Biodiversity Assessment Method (BAM) is based on a ‘no net loss’ standard whereas the provisions of the WLEP 2000 sought to require improvements in biodiversity. To that extent, they contradicted the BC Act by setting a higher bar to approval than the standard adopted in the BAM.

The Court held it was bound to apply the Applicant’s Biodiversity Assessment Report (BDAR) to its assessment of the biodiversity impacts and the BDAR demonstrated that the ecological impact of the proposed development was low (including that no threatened species would be impacted by the clearing required for the APZ).

The appeal was upheld and development consent was granted for the senior’s living development.

Key takeaways

Assessment of biodiversity impacts is primarily the domain of the BC Act where it applies. LEPs and other instruments made under the EPA Act cannot seek to impose a higher standard than that imposed by the BAM.

Court permits joinder to Class 1 appeal where Applicant and Council had entered into commercial agreement

Optus Mobile Pty Ltd v Central Coast Council [2025] NSWLEC 74 by Beasley J (9 July 2025)
Read the full decision here.

Background

This case involved an application for joinder by a neighbouring landowner (Mr Denny) who lived on land next to the proposed site of a 30-metre-high Optus tower, at Killcare Heights. The site was owned by the respondent Council which had already granted a lease to Optus.

Decision

The Court granted leave to Mr Denny after reviewing the relevant principles that apply to joinder applications made under s 8.15(2) of the Environmental Planning & Assessment Act 1979 (EPA Act).  These principles are set out in the judgment of Pepper J in Jon Garling v Northern Beaches Council [2022] NSWLEC 102 where it was held that the test was whether joinder was: 

• In the interests of justice,
• In the public interest, or
• Necessary because an issue would not otherwise be sufficiently addressed.

The Court held that it was in the interests of justice that there be a contradictor to the appeal who did not have a pre-existing commercial relationship with the Applicant for development consent relating to the site of the proposed development. At [45]-[46] Beasley J held as follows:

However, whatever range of concepts might be caught within the meaning of the phrase “the interests of justice” in s 8.15(2)(b)(i), in my view it includes notions of fairness, impartiality and integrity. While I do not find that the Council as consent authority will not act appropriately in the Appeal proceedings, the fact is that it is the Respondent consent authority in the Appeal, and it has entered into a commercial arrangement with the Applicant to the DA over the Site where that Applicant proposes to carry out development. 

It is this combination of factors – the existence of the lease agreement between the Council and Optus over the Site; and the complex and numerous issues said to warrant refusal of consent – that have caused me to form the opinion that it is in the interests of justice to grant leave to the Joinder Applicant (who is likely to be the most affected person by a grant of consent) to be joined to the Appeal proceedings.

The Court was not persuaded that the joinder would cause unacceptable delay or duplication.  

In reaching this decision, Beasley J observed at [39]-[40] that while the adjoining landowner may be deprived procedural fairness because of the risk of a section 34 agreement being entered into, on its own this was not a proper ground for joinder.

Key takeaways

The case provides a reminder of the relevant principles that apply to a joinder application in Class 1 proceedings.  It provides support for the joinder of an adjoining landowner to proceedings in circumstances where there is a pre-existing commercial relationship between the Respondent Council and Applicant.

Court finds substitution of experts amounts to impermissible 'expert shopping'

Potter v Woollahra Municipal Council [2025] NSWLEC 80 by Beasley J (07 August 2025)
Read the full decision here.

Background

This case involved an appeal against the Woollahra Local Planning Panel’s refusal of a development application for works to a house at Point Piper.  On 4 July 2025 the Registrar granted the Council leave to rely on the expert evidence of a new planning and arboricultural expert.   The Applicant filed a motion seeking orders that the Registrar’s grant of leave be dismissed.

Issues

• Whether the Registrar erred in granting the Council leave to substitute experts.
• Whether the substitution amounted to impermissible ’expert shopping’.
• Whether the interests of justice required intervention to set aside the Registrar’s orders.

Decision

The Court held that the Registrar erred in permitting the Council to substitute its experts, finding that the circumstances constituted impermissible expert shopping.  At [41] Justice Beasley found as follows (our emphasis added):

…. Mr Kenworthy and Mr McMahon were nominated as the Council’s experts a week after the WLPP’s reasons for refusal of the DA were made public, and the Court made the orders it did naming them to prepare joint reports. After this, they have formed a view (not specified to me) that there are one or more aspects of the WLPP’s reasons for refusal that they cannot support. I would infer that in forming the views they have that differ from the WLPP, Mr Kenworthy and Mr McMahon have done so consistently with their obligations under the Expert Code to be impartial, not to be an advocate for the WLPP (or the Council), and to fulfill the obligation they have to assist the Court. It seems to me that it would subvert the objects and purposes of Division 2 of Part 31 of the UCPR, of the Expert Code, and of this Court’s relevant Practice Note, if, only because they have formed an opinion that is not entirely in agreement with the WLPP’s reasons for refusal, leave should be granted by the Court to dispose of them as the Council’s experts, and substitute instead witnesses that have been found that say they can support all of the WLPP’s reasons for refusal.

His Honour held that the Registrar’s reasoning that ’expert shopping is actually a matter that is more appropriately dealt with in cross-examination, going to the opinion of the expert’ was misplaced, as the Court’s control of expert evidence requires ensuring impartiality at the outset rather than relying on adversarial testing.  Accordingly, the Court set aside and dismissed the Registrar’s orders allowing substitution of the Council’s experts.

Key takeaways

The case demonstrates that dissatisfaction with an expert’s inability to support a party’s position will not justify an order for substitution of experts and could amount to ‘expert shopping’. Substituting experts after nomination is generally only permissible where there are legitimate reasons (e.g., breakdown of relationship, conflict, or fairness concerns).

Court reinforces high bar for noise prevention notices

Doon v Snowy Valleys Council [2025] NSWLEC 1514 by Dickson C (22 July 2025)
Read the full decision here.

Background

These proceedings concerned a prevention notice (Notice) issued under the Protection of the Environment Operations Act 1997 (POEO Act) to regulate noise emissions from a residential property in Tumut. The Notice imposed restrictions on the use of amplified music, power tools, vehicles, and a modified ride-on mower, aimed at preventing ’offensive noise’ impacting neighbouring properties. Mr Doon appealed the Notice under s 289 of the POEO Act, seeking its revocation.

Issues

• Whether the Council’s issuing officer lacked the ‘reasonable suspicion’ required under s 96(1) of the POEO Act.
• Whether the issuing officer was properly authorised, as he failed to comply with Council’s Code of Conduct by not disclosing a conflict of interest arising from his professional relationship with a complainant.
• Whether the Notice was properly served on the Applicant.

Decision

The Court upheld the appeal and revoked the Notice. It found that the Council had not formed the ’reasonable suspicion’ required under s 96 of the POEO Act that activities on the site were being carried out in an environmentally unsatisfactory manner. The Court held that: 

• Council’s evidence was inadequate, as no officer independently assessed the matter against the POEO Regulation or EPA Noise Guide.
• No objective noise logs, or measurements were relied upon.
• Council failed to follow the regulatory hierarchy for addressing neighbourhood noise before issuing a prevention notice.

Even if the statutory threshold had been met, the Court stated it would not have exercised discretion to issue the Notice, on the basis Mr Doon’s activities were broadly consistent with the semi-rural residential context of his property.

Key takeaways

Councils must have an objectively verifiable basis – such as site inspections, noise logs, or measurements – before forming the ’reasonable suspicion’ required to issue a prevention notice related to noise under the POEO Act. Neighbour complaints, without corroborating evidence, will not be sufficient to justify regulatory action.

Builder prosecuted for carrying out development without development consent

Tweed Shire Council v Coakers Building Service Pty Ltd [2025] NSWLEC 90
Read the full decision here.

The Land and Environment Court of New South Wales has convicted Coakers Building Service Pty Ltd (Builder) for undertaking substantial building works without obtaining the required development consent from the Tweed Shire Council (Council), in breach of s 4.2(1) of the Environmental Planning and Assessment Act 1979 (NSW).

The offence took place at a property in the Tweed Shire and involved the demolition of an existing dwelling and the construction of a new one – both carried out without the necessary development consent.

The Court imposed a fine of $50,000 which was reduced to $37,500 to reflect the builder’s early guilty plea. In addition, the builder was ordered to pay the Council’s legal costs and to cover the cost of publishing the Publication Notice.

Key takeaways

This decision serves as a reminder that any party involved in development or building works must ensure the appropriate development consent is in place before works commence, and that failure to comply with this legal requirement may result in prosecution and criminal penalties.

Court of Appeal

Court of Appeal finds development consent for coal mine invalid because of IPC's failure to consider impacts of climate change on the locality

Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc v MACH Energy Australia Pty Ltd [2025] NSWCA 163
Read the full decision here.

Background

In September 2022, the Independent Planning Commission of NSW (IPC) granted development consent to an application by the first respondent (MACH) for the optimisation of the Mount Pleasant Coal Mine (Project) in the Hunter Valley and extending the life of the existing mine for a period of 22 years. The development application was accompanied by an Environmental Impact Statement (EIS), which assessed the potential greenhouse gas (GHG) emissions and climate change impacts of the Project including assessment of potential impacts of climate change globally, for Australia and for New South Wales (with specific reference to the Hunter Region, the locality of the Project).

The NSW Department of Planning and Resources (the Department) prepared an Assessment Report (DAR), which it provided to the IPC. The Department concluded that, on balance, the benefits of the Project outweighed its costs. In the DAR, the Department acknowledged community concerns about GHG emissions and costs associated with climate change. It estimated that 98% of the Project’s emissions would be ’Scope 3’ emissions (that is, emissions arising from the downstream combustion of coal by end users) and that Scope 3 emissions would represent approximately 0.06% of yearly global emissions. The Department did not recommend any conditions to address Scope 3 emissions, and none were proposed by MACH. In its statement of reasons (SOR) the IPC adopted the DAR including its assessment of the EIS.

The appellant (DAMSHEG) provided written submissions to the IPC together with expert reports throughout the course of the public hearings in July 2022. The reports addressed the likely impacts on the environment of climate change, including on the environment of NSW in particular.

Background to the Appeal

DAMSHEG commenced judicial review proceedings challenging the IPC’s decision to grant development consent to the Project on the basis that the IPC failed to take into account certain mandatory considerations required by s 4.15(1) of the EPA Act, including:

1. s4.15(1)(b) requiring the consideration of the likely environmental impacts of the Project on the natural and built environment in the locality, and
2. cl 2.20(1)(c) of the State Environmental Planning Policy (Resources and Energy) 2021 (SEPP Resources), requiring the IPC to consider conditions directed at ensuring greenhouse gas emissions are minimised to the greatest extent practicable

The Land and Environment Court dismissed the challenge on the basis the absence of conditions regulating Scope 3 emissions did not establish a failure to consider those emissions.

DAMSHEG appealed that decision to the Court of Appeal on two grounds, being that the primary judge erred in concluding the IPC did not fail to consider the following mandatory considerations:

1. whether conditions could be imposed to minimise Scope 3 emissions (as required by cl 2.20(1)(c) of SEPP Resources, which is a consideration under s 4.15(1)(a)(i) of the EPA Act), and
2. the likely environmental impacts of the Project on the natural and built environment in the locality (as required by s 4.15(1)(b) of the EPA Act).

Ground 1(a): The Court held that the primary judge did not err in dismissing this ground of review. It found the IPC had expressly considered the controls on Scope 3 emissions including international law regimes such as the Paris Agreement. This was sufficient indication that the IPC had considered that there was no need to impose ‘minimisation conditions’ for Scope 3 emissions.

Ground 1(b): The Court upheld this ground of appeal, finding that there was nothing in the SOR to indicate the IPC considered the impact of climate change on the locality. The fact that the IPC referred (generally) to the material it had considered, which included the EIS and submissions, which both referred to the impacts of climate change on NSW, did not assist.

The Court did not accept the argument that the IPC’s consideration of the effect of climate change being ’felt globally’ was compliant with the requirement to consider the causal impacts of the Project in the locality. Further, the fact that the impacts of climate change may have been ’uncontroversial’ or not in dispute before the IPC did not mean that the Commission was not required to consider those impacts. Nor could it be inferred that the IPC did so.

The matter was remitted to the Land and Environment Court for further determination about whether orders can or should be made under the Land and Environment Court Act 1979, which would have the effect of conditionally validating the consent.

Key takeaways

This decision sets an important precedent for planning decisions in NSW. Where a proposed development will contribute to anthropogenic climate change, a consent authority is required to assess the causal impacts of climate change on the locality (under s 4.15(1)(b) of the EPA Act). The Court, however, provided no guidance on how the consent authority might assess those impacts, other than to state that the obligation could not be discharged by general references to the effects of global warming on the planet generally.

The decision did not settle what level of specificity is required under cl 2.20(1)(c) of SEPP Resources – that is, whether the clause requires consideration of Scope 3 emissions in addition to Scope 1 and 2. As the Court found that the IPC had considered Scope 3 emissions, it was not necessary for it to decide that issue. 

Federal Courts including High Court of Australia

Federal Court grants application for maximum costs order in public interest litigation before ultimately dismissing proceedings

Doctors for the Environment (Australia) Incorporated v National Offshore Petroleum Safety and Environmental Management Authority (Maximum Costs) [2025] FCA 598 (McElwaine J) 6 June 2025
Read the full decision here.

The Federal Court has granted an incorporated association’s interlocutory application for a maximum costs order under rule 40.51 of the Federal Court Rules 2011 (Cth), making orders that the maximum costs that may be recovered by the respondents (collectively) from the applicant (and vice versa) be no more than $80,000.

The applicant had commenced proceedings for judicial review of a decision made by the National Offshore Petroleum Safety and Environmental Management Authority (the Authority) to accept an Environmental Plan, prepared and lodged by Woodside Energy Scarborough Pty Ltd pursuant to the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 (Cth). The applicant’s position was that it would be forced to abandon the proceedings if the maximum costs order was not made on the basis it was a charity that had no reliable income to replace its financial assets if it was subject to an adverse costs order, and it would be required to cease operating.

The Court accepted the evidence of the applicant that it did not have the capacity to pay more than $80,000 to satisfy any adverse costs order but set the amount at the highest value sought in the range noting ‘the applicant should be at some material financial risk in the event that it fails in the proceeding and suffers an adverse costs order’ (at [28]).

Justice McElwaine held that this was an appropriate case for the exercise of the discretion to make a maximum costs order pursuant to r 40.51 to facilitate access to justice in a case that raises important questions about the lawful exercise of statutory power (at [12]).

His Honour came to that view for the following reasons:

• the applicant brought the proceedings in the public interest (which carried significant weight),
• the relative financial position and assets of the parties, saying the following at [17]:

’…The party/party costs estimate for this proceeding is insignificant both in the context of the estimated costs of the project, and the ability of Woodside to absorb the costs of this proceeding in excess of the maximum amount proposed by the applicant.’

The Court cited Woodside’s net profit after tax result of $3.573 billion for the full year 2024, and 

• the ’potential chilling effect of making an order against an organisation’ that is charitable where it brings proceedings in the public interest.

His Honour dismissed Woodside’s argument that the power under r 40.51 is limited to less complex cases, confirming that the discretion conferred by the power is broad (at [19]).

His Honour concluded by acknowledging the serious consequences for Woodside if the Environmental Plan was held invalid, however highlighting the serious consequences for the environment of Woodside being permitted to proceed in reliance on an invalid environmental plan.

It is noted that the substantive decision in these proceedings was also delivered on 22 August 2025. The Court made orders dismissing the proceedings, finding that the regulatory scheme did not require prescriptive or quantified definitions of environmental impact thresholds, and that the Authority’s evaluative judgement under s 33(7) was lawfully exercised, and that the applicant had standing to seek declaratory relief.

Federal Court finds no case in negligence for Commonwealth’s failure to set greenhouse gas emissions targets based on science

Pabai v Commonwealth of Australia (No 2) [2025] FCA 796 by Wigney J (15 July 2025)
Read the full decision here.

This case was a representative proceeding on behalf of Torres Strait Islanders against the Commonwealth of Australia. The Court was required to determine a claim in negligence made by the applicants, including whether the Commonwealth had a duty to take reasonable steps to protect Torres Strait Islanders from the impacts of climate change.  It also examined whether the Commonwealth owed the applicants and Torres Strait Islanders a duty of care to take reasonable steps to set greenhouse gas emissions reduction targets having regard to the ’best available science’ to prevent or minimise impacts of climate change in the region.

While the Court found that the applicants had failed to make out a case in negligence, the Court determined that the case had failed ’not so much because there was no merit in their factual allegations concerning the Commonwealth’s emissions reduction targets’ but because the law as it currently stands ’provides no real or effective avenue through which the applicants were able to pursue their claims’.

In particular, the Court made the following findings about the Commonwealth’s decision to set greenhouse gas emissions reduction targets:

1273. I have also found that the Commonwealth’s response to climate change and the threat it has posed, and continues to pose, to the Torres Strait Islands and their traditional inhabitants has, at least in some respects, been wanting.  In particular, I have found that, when the Commonwealth identified and set Australia’s greenhouse gas emissions reduction targets in 2015, 2020 and 2021, it failed to engage with or give any real or genuine consideration to what the best available science indicated was required for Australia to play its part in the global effort to moderate or reduce climate change and its impacts.

1274. The best available science was and is clear.  To prevent the worst and most dangerous impacts of climate change, it was and is imperative for every country to take steps to reduce their greenhouse gas emissions so as to ensure that the increase in the global average temperature is held to well below 2°C above pre-industrial levels, and to pursue efforts to limit the temperature increase to l.5°C above pre-industrial levels.  Those critical objectives were enshrined in the Paris Agreement, to which Australia is a party.  The evidence in this case indicated that the emissions reduction targets set by the Commonwealth in 2015, 2020 and 2021 were plainly not consistent with those objectives or its international obligations under the Paris Agreement.

Key takeaways

This case is another example of a community group taking an active role in climate change litigation and their approach to using novel legal arguments to challenge Government decisions.

The Court’s commentary about the Commonwealth’s decisions about greenhouse gas emissions targets, together with the ICJ Advisory Opinion discussed below, may lead to pressure to further amend Commonwealth legislation and policy.

High Court rules in favour of Aboriginal Land Council on unused Sydney bowling club

La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32 by Gageler CJ (3 September 2025)
Read the full decision here.

The High Court of Australia has ruled in favour of the La Perouse Local Aboriginal Land Council (LALC), affirming its claim on disputed Crown land in Paddington, Sydney. This decision reversed the 2023 decision of the NSW Court of Appeal, quashing then NSW Planning Minister Rob Stokes’ determination that the bowling club was ’claimable land’.  The Court of Appeal determined that a lease constituted a lawful ’use’ of the land, making it ineligible for claim under the Act.

The LALC, supported by the NSW Aboriginal Land Council, appealed to the High Court with the central legal issue being the meaning of ’lawfully used or occupied’ under s 36 of the Aboriginal Land Rights Act 1983 (NSW).

Three out of the five judges agreed the land was not ’in use’ by the current leaseholder Quarry Street Pty Ltd, highlighting that the land being under lease alone was not enough to establish ’use’. The Court accepted that ’use’ must mean substantive physical use of the land.

Key takeaways

• Lease alone is not ’use’: The High Court clarified that holding a lease, without purposeful activity, does not constitute ’lawful use’ of land under the Aboriginal Land Rights Act. 
• Minister’s discretion reinstated: The Court restored the Minister’s 2021 decision allowing the La Perouse LALC claim. 
• Significance for land rights: A contrary decision could have significantly curtailed future Aboriginal land rights claims in NSW. 
• National implications: The ruling reaffirms the strength of Aboriginal land rights legislation and its interpretation in favour of claimants where land is unused. 

Formal recognition of native title for the First Peoples of the Millewa-Mallee

First Peoples of the Millewa-Mallee Native Title Claim Group v State of Victoria [2025] FCA 799  
Read the judgment here.

On 18 July 2025, the Federal Court recognised that the First Peoples of the Millewa-Mallee hold native title over Crown land and waters in the north-western corner of Victoria along and south of the Murray River. This is the first time the Federal Court has recognised native title along the Murray River.

This is also the first time in Victoria that the Federal Court has recognised exclusive possession native title rights over certain freehold land owned by Aboriginal organisations. This is the highest form of native title rights and brings Victoria in line with other Australian jurisdictions.

International Court of Justice

Landmark ’advisory opinion’ states that nations can be held legally accountable for their greenhouse-gas emissions

Read the full Advisory Opinion here.

In July 2025, the International Court of Justice (ICJ) issued a landmark advisory opinion confirming that all states have a legal duty to protect the climate and may be held accountable for harm caused by greenhouse gas emissions. The advisory opinion was given in response to an application by the Pacific Island nation of Vanuatu and supported by 130 countries (including Australia). The opinion answered the following questions: 

• What are the obligations of states under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for states and for present and future generations, and
• What are the legal consequences under those obligations for states where they have caused (by acts or omissions) significant harm to the climate system or other parts of the environment with respect to other states (including small island nations) and people and individuals (including present and future generations).

What the ICJ decided

The ICJ held that:

• States must reduce emissions, prevent future harm, and make reparations where damage occurs.
• Obligations arise under customary international law and bind all nations.
• Responsibility extends to regulating private actors’ emissions.
• Those most responsible for emissions bear greater burdens under the principle of ’common but differentiated responsibilities’.

​In doing so, it made several other key findings:

• Limiting warming to 1.5 degrees Celsius is a binding global obligation under the Paris Agreement. 
• States must take precautionary measures, regulate fossil fuel activities, and adapt in line with science. 
• Emissions can be attributed to individual states, including historical contributions, enabling claims for responsibility. 
• Any state can invoke breaches of climate obligations, not just directly affected nations.

Key takeaways

This advisory opinion is not a legally enforceable judgment, but it may have implications for how Australia interprets its obligations under international agreements, including the Paris Agreement. That may result in changes to the way government agencies perform their statutory functions, including the powers and obligations conferred on the Commonwealth Minister for the Environment.

The ICJ’s findings highlight a focus at an international level on human rights obligations and how a failure by a state to act on climate change (to regulate or limit GHG emissions) may result in a breach of those obligations. 

The decision may be used to support changes to legislation and policy that involve further requirements to limit or reduce GHG emissions or future claims similar to those made in Pabai above.

Environmental Planning and Assessment Amendment (Planning System Reforms) Bill 2025

On 17 September 2025 the NSW Government introduced the Bill, which proposes significant reforms to the Environmental Planning and Assessment Act 1979 (EPA Act), the regulation and other associated legislation. A summary of some of the proposed changes is provided below (and was set out in our recent bulletin available here):

• Establishment of the Development Coordination Authority to centralise agency referrals and provide advice on development applications (see proposed s 2.11F - Functions of Development Coordination Authority).
• Introduction of a new ‘targeted assessment development’ (TAD) pathway (see proposed Division 4.3A). TAD will be any development declared by a SEPP by either class or criteria. Before making such a SEPP, the Minister must publicly consult on the proposed policy. Where development is declared to be TAD, the matters for consideration in s 4.15(1)(b)(c) and (e) must not be taken into account. This is a significant change to the assessment process for any development declared TAD.
• Proposed s 2.23(1) requires the Planning Secretary to prepare a single community participation plan that will apply to all planning authorities. This would remove the requirement for each individual planning authority to prepare its own community participation plan.
• Introduction of s 4.31A into the EPA Act, which allows for the issue of ‘variation certificates’ for complying development certificates (CDC). A ‘variation certificate’ will allow for a CDC to be issues with a variation to a development standard, where the applicable environmental planning instrument (EPI) permits that standard to be varied.
• Introduction of shorter approval periods for minor amendments, including a 10-day deemed approval period for small variations on complying development applications, and 14-day approval period for minor modification applications. Where a minor modification application is not determined within 14 days, the consent authority must not refuse the application but may impose additional conditions of consent (see proposed s 4.55A).
• Introduction of a new definition for a ‘development standard’, which will eventually see that any provision identified as a development standard in an EPI is taken to be one.
• Introduction of standard and ‘model’ conditions of consent (see proposed s 4.17(11) – (15)). The Bill provides for standard conditions of consent to be either prescribed by the regulation or specified by a SEPP. It also provides for ’model’ conditions to be specified by a SEPP and provides that a consent authority must impose a model condition where they exist. There are no standard or ‘model’ conditions currently available.
• Removing the regionally significant development pathway and proposing changes to the constitution of regional planning panels.
• We will continue to monitor the progress of this Bill as it is likely to have significant implications for both proponents and consent authorities.

View and track the Bill here.

EPA ’with teeth’ – Environmental Legislation Amendment Bill 2025

The Environmental Legislation Amendment Bill 2025 (Bill) was introduced on 6 August 2025. The Bill proposes to amend various pieces of environmental legislation including the Protection of the Environment Operations Act 1997, the Climate Change (Net Zero Future) Act 2023 and the Contaminated Land Management Act 1997 (among others).

According to the second reading speech, the Bill aims to reduce duplication, increase consistency and remove loopholes across environmental legislation and is part of the NSW Government’s policy to provide an NSW EPA ’with teeth’. It also aims to incorporate Aboriginal perspectives and was informed by work with the independent Aboriginal Peoples Knowledge Group. The Bill contains provisions to enable Protection of the Environment Policies, or PEPs, to apply to a broader set of stakeholders, including businesses. It also increases some penalties for environmental offences and introduces new executive liability provisions into the Plastic Reduction and Circular Economy Act 2021, the Waste Avoidance and Resource Recovery Act 2001 and the Product Lifecycle Responsibility Act 2025.

View and track the Bill here.

NSW Housing Pattern Book

The Pattern Book Development Code 2025 has commenced, amending the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (inserting a new Part 3BA) and the Environmental Planning and Assessment Regulation 2021 (inserting a new s 131A).

This means that low-rise housing in the NSW Housing Pattern Book is eligible for a complying development pathway. If the housing complies with the pattern-specific development standards and is located on a site that is appropriately zoned, planning and construction approval can be issued within 10 days.  The Pattern Book includes technical information and drawings, BASIX guidance, landscaping guides, and an editable design verification statement.

The Pattern Book can be used in NSW where low-and mid-rise housing is already permitted with consent, and includes Transport Oriented Development (TOD) areas, Low- and Mid-Rise Housing Policy (LMR) areas and non-LMR areas.  The one constant standard across all Pattern Book housing is the 9.5m height for LMR areas, otherwise the other standards can vary.

Australia’s first National Climate Risk Assessment

On 15 September 2025 the Australian Government’s inaugural National Climate Risk Assessment was released.  The assessment adopts a risk-based framework to identify and assess climate-related issues facing the country. The assessment focuses on 11 priority risks considered to have the greatest potential consequences and where policy and regulatory responses may be most urgently required.

The assessment evaluates residual risk being the level of risk that persists despite existing mitigation and adaptation measures. This focus is intended to provide decision-makers with insights into where Australia is most exposed and where further intervention may be necessary.

Read more about the National Climate Risk Assessment here.

ACCC targets ‘love gas’ ads in greenwashing case

Australian gas networks are in Court over alleged greenwashing in a renewable gas campaign – the ACCC has launched Federal Court action against gas distributor Australian Gas Networks Limited alleging it made false and misleading representations in its ‘Love Gas’ TV and digital advertising campaign.

High risk chemicals banned

Three new PFAS chemicals have been banned from future import, export and manufacture, and new limits have been set for disposal.

Read the media release of 4 July here.

NSW circular clarifies crown development rules

A new Crown development application’s circular has been released that advises councils, applicants and practitioners of the Crown development provisions that apply to local and regionally significant development under Part 4, Division 4.6 of the EPA Act.

View the planning circular here.

First project registered under Nature Repair Market scheme

The first project has been registered under the new Nature Repair Market scheme (Scheme), which aims to restore and protect Australia’s natural environment.

Located in north-east New South Wales, the project will restore 439 hectares of previously cleared land by replanting native forest and woodland ecosystems. It is the first approved under the scheme, which opened on 1 March 2025.

The same site is also registered under the Australian Carbon Credit Unit Scheme using the reforestation by environmental or mallee plantings (FullCAM) method, allowing it to generate carbon credits as the vegetation grows and sequesters carbon.

The Scheme is open to landholders, First Nations people, farmers, conservation groups, and others committed to restoring Australia’s natural ecosystem.

Read more about the project and the Nature Repair Market scheme here.

Commonwealth Minister for the Environment settles Federal Court proceedings brought by the Wilderness Society with orders compelling the Minister to make overdue recovery plans for several threatened species

Recovery plans are legally binding tools under the Environment Protection and Biodiversity Conservation Act that set out the actions needed to stop the decline of a threatened species and support its recovery.
 
The Federal Court also confirmed that recovery plans remain in force until a species is no longer listed as threatened.
 
Read the media release here.