Clean & Green Tech - Navigating approvals
Over the last few years, I’ve supported clients in mergers and acquisitions and matters involving clean and green tech start-ups trying to bring overseas technologies to market in Australia or new technologies to commercialisation in Australia.
New or novel technologies, particularly in the waste sector, are often incredibly complex. The regulatory scheme is often an imperfect fit for proponents wishing to bring new technologies to market. The law may not contemplate the type of technology or operational process being proposed and as such environmental laws can lag behind innovation, notwithstanding the tremendous need for green technologies.
The regulatory framework – A snapshot
Last year I set out to explore how easy it was to develop new technologies under current environmental legislation in Australia. The outcome was interesting.
There are two jurisdictions – VIC & ACT – with express provisions in the environmental approvals legislation for new and novel technologies to seek research and development approvals to assist with commercialisation of projects.
QLD does not have express provisions, but does have a level of flexibility with environmental approval types that is facilitative.
All the other jurisdictions have more general categories for environmental approvals and make no distinction between approvals for research, trial, development of small-scale or new technologies and all other approvals types.
What is surprising about this, is that when you look at where some new technologies are trying to locate themselves, they may be setting up in jurisdictions that are not particularly facilitative of new technologies. Consequently, there is a risk that it may take much longer for projects to be assessed and developed and ultimately approved.
VIC, ACT & QLD
Victoria’s environmental licensing system under the Environment Protection Act 2017 makes provisions for “pilot project licences” (formerly research, development and demonstration approvals). A pilot project licence supports the research, development or demonstration of an innovative technology or technique. It allows you to demonstrate technology, processes and monitor environmental performance. It also enables you to legally engage in a prescribed development, operating or permit activity, providing the activity is:
· for research, development or demonstration of a technology or technique
· of limited scale, dimension and duration
· of an acceptable level of risk to human health and the environment.
In the ACT, the environmental licensing regime provides for a “special environmental authorisation” in relation to a prescribed activity that is being conducted for the purposes of research and development, including for the purpose of trialling experimental equipment. They can be granted for up to 3 years.
In Queensland, the environmental licensing system enables an environmental authority (EA) - the equivalent of an environmental protection licence – by way of a site-specific application or variation application for non-standard EA activities.
The road to operation
One of the biggest challenges for clients on the road to commercialisation and operation is understanding the need for regulatory approvals at each stage of the process.
For the R&D facility at a small scale or test operation, there may be planning (development) approvals and environmental approvals for the construction and operation of an R&D plant.
The same facility, when developed for permanent operations, or the construction of a new commercial operational site, will highly likely also require planning (development) approvals and environmental approvals for its construction and operation.
An important facet which is often overlooked at the early stages of testing new technologies is the potential for approvals to be required not simply for the waste processing or treatment activity on site but relevantly for the waste storage and transport. It is not uncommon to find that in anticipation of a project, a site has already begun waste receival and stockpiling so that they have a feedstock for their test facility, which may mean that they could fall foul of the first regulatory hurdle, by inadvertently receiving wastes and storing them contrary to law.
Tips for all sectors when doing something new
A really important aspect of good legal compliance “hygiene” is doing periodic checks of whether or not any of your site operations have changed in recent times. This is equally as important as staying ahead of changes to legal requirements. The reason that this is important is that many industrial or commercial activities require approvals to operate.
Activities that are considered “high risk” require approvals from environmental regulator of the relevant state or territory, commonly in the form of an environmental licence or EA. But a vast range of other sites (both “high risk” and non-“high risk”) also require a planning approval to either use and/or develop a site.
Some sites may have the benefit of existing use rights (which may enable expansion or amelioration of a site’s operations).
In many cases, however, if operations are changing on the ground, such as constructing new storage areas, moving to different hours of operation, increasing emissions, or varying the types of activities being conducted, approvals may be needed to lawfully operate.
Consider scheduling regular reviews (at least annually) to check whether site operations have changed on the ground and whether there are any requirements for the site to hold a licence or planning approval for its current operations
For sites that already hold approvals it will be important check the conditions in existing site approvals as these may materially impact upon proposed operations
New activities might require an amendment to an existing approval
A great place to start is to gather together your corporate documents (licences, permits and development approvals etc) and to the extent that they can be located, the application documents submitted for those approvals as these will be helpful to assess what is lawfully permitted (and if necessary, how the current approvals should be interpreted)
Conclusion
The road to commercialisation of new technologies, particularly in the waste sector, can be complex. Making sure that you are aware of the regulatory approvals regime and timelines for approvals is incredibly important to ensure that you have the best strategy and location for success.
If you need assistance with approvals due diligence or any other aspect of environmental law advice, please contact Guthrie Legal. We have experience advising in relation to thermal (and non-thermal), biological, chemical and mechanical waste technologies.
If you need an independent senior lawyer to support you as you work through environmental compliance, sustainability or governance challenges in your organisation, please don’t hesitate to get in touch.
The legal stuff
This article is aimed to be high-level, practical and thought-provoking. It is not a detailed description of environmental law in any particular Australian State or Territory. All States and Territories have different environmental laws. You should always seek independent legal or other professional advice on specific cases and before acting or relying on any of the content. All the information in this article and on this website and any downloads are intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice or establish a lawyer - client relationship. Whilst attempts have been made to ensure that the content is current, Gabrielle Guthrie and Guthrie Legal do not guarantee its currency.
