Singapore court’s cryptocurrency decision
Implications for cryptocurrency trading, smart contracts and AI
There have been a number of recent developments, at both a state and national level, which have significant implications for the day to day management of contaminated sites.
This is what you need to know.
Per- and poly-fluoroalkyl substances (PFAS) contamination is caused by a range of activities. The most well-known source of PFAS contamination is the manufacture and use of aqueous film forming foams (AFFF). AFFF is an extremely effective fire suppressant, and was widely used for over 60 years to extinguish fires, and in fire training activities.
However, AFFF is far from the only source. PFAS contamination is also caused by, amongst other things, chrome plating operations, textiles manufacturing, mists suppressants and food packaging.
It is clear that PFAS can persist in humans, animals and the environment. However, there is no definitive evidence that PFAS exposure is harmful to human health.
As a consequence of the widespread historical use of PFAS in Australia since the 1950s, and the potential risks (although unproven) to human health and the environment, PFAS contamination is a significant national issue.
As demonstrated by the class actions commenced around the world in relation to PFAS contamination, including in Australia, it is also a potential source of significant civil liability, especially for those who have caused PFAS contamination. In addition, PFAS contamination may trigger statutory obligations on the part of those responsible for PFAS contamination, and the owners of PFAS contaminated sites, including to report contamination, and undertake investigation, management and remediation works.
With a view to providing some guidance on this significant national issue, on 16 February 2018, the Commonwealth, State and Territory environment ministers endorsed Australia’s first PFAS National Environmental Management Plan (NEMP), and in late February 2018, they entered into the Intergovernmental Agreement on a National Framework for responding to PFAS contamination.
The NEMP is the first national ‘blue print’ for the regulation of PFAS contamination and will inform the approach taken by regulators across Australia.
The NEMP may help you to anticipate the actions of regulators, and take a proactive approach in relation to an issue which is catching many unawares.
State Environmental and Planning Policy 55 is the key planning instrument in NSW which regulates the development and remediation of contaminated land, and it is set to change.
The proposed new State Environmental Planning Policy (SEPP), and the associated draft guidelines, if made, will result in significant changes as to how contaminated land in NSW is developed and remediated. Copies are available here.
Until 13 April 2018, any person may make submissions on the proposed new SEPP and guidelines. Submissions can be made here:
Some of the key changes in relation to which you may wish to comment are set out below:
The list of “category 1 remediation works”, being works which will require development consent, is proposed to be significantly expanded. As a consequence, it is predicted that the vast majority of remediation works in NSW will now require development consent. Local Councils are also set to lose the ability to determine the kinds of remediation works which require development consent.
This element of the proposed reforms has led to a range of questions by the contaminated land industry, including whether planning authorities will be overwhelmed by an influx of development applications.
Questions have also been raised about the inclusion in category 1 of all remediation works at sites which, once remediated, will be the subject of a long term environmental management plan (EMP).
This aspect of the proposed reforms is potentially problematic, as at the time that the proponent is determining whether or not to lodge a development application, it may not know whether an EMP will be required. Whether or not an EMP is required is invariably dependent on how works progress. As such, the risk that proponents will need to stop and obtain development consent, when works are almost complete, leading to delay, inefficiencies and additional costs may be increased by the new SEPP.
In relation to remediation works which do not require development consent, the relevant local council must (as is currently the case) be notified of the commencement and completion of those works.
However, under the proposed new SEPP, these notifications must be accompanied by written statements from a certified consultant. For example:
Questions have been raised as to whether it is appropriate for a certified consultant to provide these statements, whether they will be made publicly available, and who can rely on them. In particular, certified consultants, whilst having specialised skills, are not necessarily experts in planning, and determining whether or not a development requires consent can be a complex process, particularly in cases where the “designated development” provisions may apply.
The role of certified consultants is set to expand.
Not only are all reports submitted to a planning authority to be authored or reviewed by a certified consultant, there is scope for certified consultants to perform some of the functions traditionally reserved for site auditors, including reviewing the work of other consultants.
If Councils are able to rely on a review by a certified consultant, instead of requiring a review by a site auditor, then this will represent a significant cost saving to proponents.
However, there is a potential issue with this approach. A review by a certified consultant of another consultant’s work has the potential to constitute a “statutory site audit” within the meaning of the Contaminated Land Management 1997 (NSW) (CLM Act), if the review is required by the new SEPP or by a condition of a consent. It is an offence for someone to carry out a statutory site audit, who is not a site auditor. As such, the final terms of the new SEPP and the guidelines will need to be drafted with this issue in mind. In addition, planning authorities who wish to use certified consultants instead of site auditors, will need to be very careful about how they do so.
When considering applications for development consent, planning authorities are encouraged to check their own records for information relevant to the subject site, and adjoining sites.
This may mean that a planning authority will raise issues based on information to which the proponent does not have immediate access. This risk may be reduced by:
Under section 60 of the CLM Act, a person whose activities have contaminated land, or an owner of land that has been contaminated, must report that land to the EPA, using the prescribed form.
The EPA has recently approved a new version of the prescribed form, a copy of which is available here. The differences between the old and new form are:
The EPA will allow a short transition period between the use of the old and new forms. From 1 April 2018, all contaminated land notifications must be made using the new approved form.
Implications for cryptocurrency trading, smart contracts and AI
Decree No. 228 of 2019 (Decree 228/2019) came into effect on 27 August 2019, which simplifies and revokes previous decrees of the Ministry of Employment (MoE) to widen the type of job titles allowed for foreign professionals to work in Indonesia.
The Indonesian Investment Coordinating Board (BKPM) enacted BKPM Regulation 5/2019 to amend last year’s implementing regulation on guidelines and procedures for licensing and facilities under Indonesia’s foreign direct investment (FDI). The new regulation particularly includes requirements on divestment obligations for foreign direct investment companies.