Written by Heidi Ruckert
WHAT IS ENVIRONMENT AND PLANNING LAW?
Environment and Planning is a growth area of the law with domestic and international practitioners, as well as a range of specialty areas. Environmental law encompasses the complex legal system which governs how humans interact with the natural world. Planning lawyers use their understanding of environmental regulations to advise public and private clients on a range of issues. Areas of focus within environment and planning law include:
● acquiring licenses and permits for business or building projects;
● advising corporations and boards about environmental due diligence requirements;
● native title claims;
● biodiversity management and protection;
● pollution and waste management; and
● climate change policy.
Bridget Phelan
Special Counsel, King & Wood Mallesons
Bridget Phelan is a Special Counsel in the Environment and Planning Team at King & Wood Mallesons. She has over 20 years of experience in both NSW and Victoria, and specialises in environmental matters related to site contamination, environmental due diligence, strategic planning issues and appeals in statutory planning cases. Keep on reading to learn more about Bridget’s incredible experiences!
INTERVIEW
What advice would you give students who are unsure about which area of law they would like to practise in?
It is good to have an open mind and to be curious. There are some fascinating corners of the law and the profession has something for everyone. Be curious about the work you undertake and ask questions about how it fits into the bigger picture. Understand why you are completing that work, what is driving it and how it fits into a matter or a piece of litigation. When given opportunities, combined with an open mind and curiosity to learn, it will help draw out the areas that really speak to you.
What is one piece of advice you would give yourself back in university?
I probably should have been more strategic about career options when I was in university. I did not think I would necessarily practice law for my entire career. As a result, I did not think through all the different alternatives that were available to someone with a law degree. So podcasts, like the EncycLAWpedia podcast (or the equivalent that was available in the late 1990s), I should have probably explored a bit more at university. This would have assisted my understanding about in-house, government and non-government roles and the breadth of opportunities that are available.
How do you maintain a work-life balance?
I work part-time (three days a week) and I am very open in saying that there are other things in my life that I have committed my time to that are just as important as my work. I think being open about my time commitments allows me to manage my workload pretty well. It is not failsafe, but it allows me to have conversations with colleagues and clients about when work is going to be done and what is realistic, rather than pretending I can get everything done when the hours of the day are simply not there. I have also found being an open book about my time commitments helpful.
Being part of a team is also important, as you cannot do everything all by yourself. Working in a team where I have good relationships with other people, really helps ensure I keep a good work-life balance.
“I think being open about my time commitments allows me to manage my workload pretty well.
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Could you share with us what your typical day as a Special Counsel in an Environment and Planning practice area looks like?
There is no such thing as a typical day in Environment and Planning, it is so varied. I think that’s what keeps the job so interesting.
Matters in recent weeks that have come across my desk have involved aboriginal and cultural heritage management plans, permits for European heritage, licencing for all sorts of different sectors, such as, intensive animal agriculture and tenure for beekeeping on public lands. I have also been looking at wind farms and environmental compliance, remediation strategies for industrial sites, advice on urban planning requirements in major cities and on energy reporting for big corporations and how they might incorporate energy reporting into their supplier contracts. I have some matters which are in VCAT at the moment and also matters which will never see a court or tribunal.
Every day is different and there are patches where you will have hearings and your day is quite structured and then other days where you’re working on a deal. For example, where the Mergers and Acquisitions team has called you and you need to turn some environmental advice around quite quickly. So, the only thing I can say as to what is a typical day in Environment and Planning, is that there isn’t one!
What made you realise that Environment and Planning was the main area of law you wished to practise in? Is it an area of practice that you were interested in early on in your career?
Environment and planning was the only reason I got into law. My first interest was Environmental Studies. I was at Monash University completing my Arts degree (majoring in Geography and Environmental Science) combined with a Bachelor of Laws. As I progressed through university, I thought about different career options and considered what I might be interested in and I thought I would try law, but only if I could do planning and environmental law.
I was someone who came into practice with a narrow focus about what I wanted to do and fortunately that has turned out to be satisfactory and I have enjoyed it. Environment and planning was something that I narrowed in on quite early. I backed my choices and it paid off! I obviously rotated through some other areas as a graduate and could have been diverted along the way, but I wasn’t.
“Environment and planning was something that I narrowed in on quite early. I backed my choices and it paid off!”
What is the most rewarding part of your job, or the most exciting matter you have worked on?
Sometimes in practising law you get these legal puzzles that are really satisfying to solve. This often comes with planning law. It can be quite technical and I quite enjoy working out a solution to a problem.
Another aspect I find satisfying is that planning and environmental law is a really tangible area of law by and large. I really like understanding what I am working on, whether it is finding out about a particular wind farm site, a building on Collins Street or reducing energy consumption at a particular facility. This makes a lot of sense to me when elements of my work are so tangible. I also find it really rewarding because you are learning about the environments you live in constantly. I have also found that you then see those things for the rest of your life. For example, you work on a particular type of building and then you will forever see that type of building wherever you go. If you work on wind farms, you can’t drive past a wind farm without observing certain things about it. I have also worked on a lot of Telco cases and I will now see Telco facilities everywhere. I find that so enriching understanding about how the world works around you.
I have had the opportunity to work on a few ‘glamour’ cases which have been fun. For a few years, I was working in our Sydney office and I worked on the Rose Bay and Point Piper marina re-developments which involved a lot of views of Sydney harbour and beautiful boats. Of course, there were substantive issues, like ensuring the seagrass wasn’t impacted but that was quite glamorous and fun.
Also, in Sydney, I remember one day we had an onsite Land and Environment Court hearing with regard to a planning matter which involved view loss issues over Sydney harbour. On the day of the hearing there was an epic dust storm. The Commissioner and everyone had arrived to do an onsite hearing to assess the extent of the view loss and no one could see anything! So that was quite entertaining.
Recently, I had an interesting matter which involved more of a strategic level hearing on what heritage controls should be applied to over a certain part of Melbourne. This involved ascertaining what sort of buildings were in that part of Melbourne and understanding their heritage value.
“I find it really rewarding because you are learning about the environments you live in constantly.
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What is the most difficult part of your job as an Environment and Planning lawyer?
Environment and Planning is a specialist area of the law. In a firm like King & Wood Mallesons, it is a small practice group but it is also incredibly diverse. This means that there is a pressure to be across and familiar with everything, from heritage to water to the latest developments in the law. For example, the new amendments to the Victorian Environment Protection Act 2017. The area is constantly changing and developing, so I think keeping up with all the new developments is possibly the most challenging aspect about this area.
Do you have any words of advice for students who are interested in practising in Environment and Planning law or within a commercial law firm more generally, which would help them stand out when applying for clerkships/internships?
My main piece of advice, which goes back to one of my initial points, is to demonstrate your curiosity and your interest. However, if you don’t possess a specific focus area of interest, that is fine. Firms appear to be looking for more generalists at the moment. Demonstrate your curiosity and your interest in learning.
It is also important that you understand that it is the client that is at the core of all of the work we do at a commercial law firm. It is really important to understand your client, try and be in their shoes, know what their business is about and how our advice will assist in what they’re doing. As a young lawyer you cannot know the answer to all of these questions as that takes time to build up an understanding about what a client is interested in and to really understand how a particular client's business ticks. However, if you can demonstrate that you appreciate that the client is a core part of what we do then I think that will go some way in demonstrating that you have some commercial knowledge.
Another word of advice is that what you write in legal practice is not going to be like a university essay. Your writing will be focused, to the point and most importantly it is going to be useful. Your advice is going to be picked up and applied somewhere, so I think if you can demonstrate that you understand how the client sits in the middle of everything, I think that will really help.
“If you can demonstrate that you appreciate that the client is a core part of what we do then I think that will go some way in demonstrating that you have some commercial knowledge.”
Do you have any thoughts on how Environment and Planning law may develop in the future? Are there any major developments within the industry that may impact your future work as an Environment and Planning lawyer?
I just see it getting more thorough and complex as a growing practice area. As regulation grows and regulators are given more powers to enforce laws, then I think the clients' need for advice will grow. An example of this is the Environment Protection Act reforms in Victoria which commenced in July 2021. For the first time we will see a lot of administrative reviews of EPA decisions going to VCAT which has not happened before.
I think more broadly in recent years, there is a lot more advice around corporate governance around environmental issues. Whether that is energy reporting or environmental compliance more generally, I think Boards are increasingly interested in environmental compliance as something they need to have considered. This area will continue to be a big source of legal advice.
Are there any extra-curricular activities or volunteering which you would recommend to students if they are interested in environment and planning?
I would recommend anything that gets you interested in Environment and Planning. When I was at university, I did some volunteer work at what was then the Environment Defenders Office. However, I think if you have an interest in government decision making and administrative law, volunteering somewhere in that area would be worthwhile.
Otherwise, if you want to know more about the area for your own interest, there is a wealth of material available from local, state and federal government as well as from non-government organisations. These can inform you about current issues in planning and environment law.
Associate Professor at Monash University
INTERVIEW
Suggested Electives/activities:
Students interested in pursuing a career in Environment and Planning Law would benefit from engaging with the following Monash electives and opportunities.
Units/Electives:
International Environmental Law (LAW4313)
Administrative Law (LAW4331)
Clinical Placement (at the Climate Justice Clinic) (LAW4803)
Planning and Environmental Law (LAW5313 - Post Graduate)
Experience/Activities:
Monash LSS Just Leadership Program
Volunteering:
○ Environment Defenders Office
○ Australian Earth Laws Alliance
○ Environmental Justice Australia
FEATURED: LEGAL BUZZ
About legal buzz
Legal Buzz is a Monash Law Ambassador initiative committed to promoting environmental awareness and justice within our community. In 2019, we held our first tree planting day at Jock Marshall Reserve, Monash University. In 2020, we hosted a zoom webinar with Associate Professor Gerry Nagtzaam discussing developments in environmental law.
We aim to:
Provide networking opportunities in the sustainability sector such as with lawyers, academics, council, activists, business, and non-for-profits;
Raise awareness within student community about local environmental issues through social media;
Host discussions with a range of experts working in the sustainability sector; and
Connect with the legal community and promote their work through social media.
How to get involved
On 7 September 2021, Legal Buzz have planned a webinar with an environmental lawyer at Hall & Wilcox. To stay up to date and learn more about events and ways to get involved in all things environmental law, follow Legal Buzz on Facebook, LinkedIn and Instagram @LegalBuzzWorkingBees.
IN THE NEWS
VICTORIAN EPA BEEFED UP WITH POWERS TO PROSECUTE ENVIRONMENTAL OFFENDERS (ABC, 2021)
Victoria's Environment Protection Authority (EPA) has been granted more power to hold polluters to account.
"Under the new Act, a new general environmental duty is introduced which applies to every Victorian, and what it really means is we've got to take all reasonable, practical, steps to understand and manage the risks from the activities we do."
"We want to capture that and we want to see that promoted right across the industry, lift the performance and ultimately protect our important environment."
TO FIX AUSTRALIA'S ENVIRONMENTAL LAWS, WILDLIFE EXPERTS CALL FOR THESE 4 CHANGES - ALL ARE CRUCIAL (THE CONVERSATION, 2021)
The independent review of Australia’s main environment law, released last week, provided a sobering but accurate appraisal of a dire situation.
“One of the many failings of Australia’s environmental laws is there has never been a point beyond which no further impacts are acceptable.”
“Biodiversity offsets, which aim to compensate for environmental damage by improving nature elsewhere, have for the most part been dreadfully ineffective. Instead they have been a tool to facilitate biodiversity loss.”
“Legal, rigorous enforcement of these standards could turn around Australia’s centuries-long record of destroying its natural heritage, and curb Australia’s appalling extinction rate — while also providing clarity and certainty for business.”
“Samuel’s report has provided a path forward that could make a substantial difference to Australia’s shocking track record of biodiversity conservation and land stewardship. But Environment Minister Sussan Ley’s response so far suggests the Morrison government plans to cherry pick from Samuel’s recommendations, and rush through changes without appropriate safeguards.”
ECOCIDE: WHY ESTABLISHING A NEW INTERNATIONAL CRIME WOULD BE A STEP TOWARDS INTERSPECIES JUSTICE (THE CONVERSATION, 2021)
A movement of activists and legal scholars is seeking to make “ecocide” an international crime within the jurisdiction of the International Criminal Court (ICC).
“If adopted by the ICC, the proposed definition would be a historic shift, paving the way for nature and other species to count legally as protected entities in their own right. However, it remains to be seen what forms of environmental destruction might still be justified if they yield sufficient social and economic benefits for humans.”
“The concept of ecocide instead means considering nature and nonhuman species as entities with inherent value, with rights that should be respected.”
“The new ecocide definition refers to “widespread damage” not only in a geographic sense but also damage suffered by “an entire ecosystem, species or a large group of humans”. We could potentially see action against top level executives from corporations accused of driving the mass deforestation of Indonesia to produce palm oil, threatening species like the orangutan, while leaders like Brazilian president, Jair Bolsonaro, could potentially be prosecuted for the assault on the Amazon forest.”
LOGGING EXEMPT FROM ENVIRONMENT LAWS DESPITE DESTROYING THREATENED SPECIES’ VICTORIAN HABITAT, COURT FINDS (THE GUARDIAN, 2021)
VicForests won appeal even though Federal Court upheld finding its activities threatened greater glider and Leadbeater’s possum.
“The full bench of the federal court on Monday overturned a judgment that last year found VicForests had breached a code of practice related to a regional forestry agreement between the federal and state governments, and had therefore lost its right to be exempt from national environment laws..”
“A once-in-a-decade independent review of the EPBC Act by the former competition watchdog chief Graeme Samuel last year found the environment laws were failing, and the effective exemption granted to native forest logging should be abolished.”
COURT ORDERS $100,000 TO ENVIRONMENTAL PROGRAM (EPA, 2021)
Charges laid against George Weston Foods Ltd by Environment Protection Authority Victoria (EPA) have resulted in a $100,000 boost for a local conservation group.
“The [Regenerative Agriculture Program] is working to increase awareness and adoption of land management practices that improve and protect the condition of soil, biodiversity and vegetation (amongst other agricultural pursuits).”
“EPA charged the company after the spill allowed untreated wastewater to flow into a nearby creek on 19 February 2019 at the company’s Don KR Castlemaine facility at 64 Richards Rd, Castlemaine.”
learn more about ENVIRONMENT AND PLANNING
MONASH LSS SOCIAL JUSTICE & EQUITY SEMINAR SERIES
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