19 December 2006
Key Points:
The agreement aims to streamline the environmental impact assessment process in NSW by allowing the Commonwealth Minister for the Environment and Heritage to rely on the processes under NSW planning laws when assessing "controlled actions" under the EPBC Act.
After more than five years of negotiation, the Commonwealth and NSW have finally released a draft bilateral assessment agreement under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the "EPBC Act"). Bilateral agreements relating to environmental impact assessment already exist with the Northern Territory, Western Australia, Queensland and Tasmania. The draft bilateral agreement between the Commonwealth and NSW was recently released for public comment.
The Agreement aims to:
Assessment under EPBC Act
Under the EPBC Act "actions", that is projects, developments, undertakings and activities (and any changes to them) that:
require the Commonwealth Minister's consent under the EPBC Act. These "actions" are known as "controlled actions".
However, the application of the EPBC Act to an "action" does not automatically exempt that project, development, undertaking or activity from environmental assessment at a State or local level. So for example, the requirements under the NSW Environmental Planning and Assessment Act 1979 (the "Planning Act") would also need to be complied with. The practical effect is that a dual process of environmental impact assessment often occurs in order to satisfy both State and Commonwealth requirements with respect to the same development.
The EPBC Act provides a number of mechanisms for avoiding this duplication. One such mechanism is an assessment bilateral agreement which recognises and accredits a State or Territory's environmental assessment processes.
What is the effect of the Agreement?
The Agreement effectively provides Commonwealth accreditation to NSW environmental impact assessment processes, meaning the Commonwealth would be able to rely on those NSW processes in assessing "controlled actions" under the EPBC Act.
This does not mean that the requirement to obtain approval at both State and Commonwealth levels for an applicable development has been altered, nor has the "referral" process under the EPBC Act been changed. Rather, where a "controlled action" has been assessed in accordance with either:
then assessment under Part 8 of the EPBC Act (which would have ordinarily required assessment via either an assessment on preliminary documentation, a public environment report, an environmental impact statement, or a public inquiry) would no longer be necessary.
The Agreement states that the assessment approaches under Parts 3A, 4 and 5 of the Planning Act correspond to assessment by "environmental impact statement", and meet the requirements of a "public environment report" under the EPBC Act, with assessment under the TSC Act and Fisheries Act corresponding to assessment by way of "environmental impact statement".
To what development would the Agreement apply?
The requirements described above would only apply to "controlled actions" that take place wholly within NSW, including its coastal waters. The Agreement would not apply to actions on Commonwealth land or by the Commonwealth or its agencies, or to nuclear actions (which will need to be assessed separately, where they are "controlled actions", by the Commonwealth). Where "controlled actions" take place in more than one jurisdiction (including NSW), or have relevant impacts in other jurisdictions, then the Commonwealth and NSW agree to consult in order to reach agreement with other jurisdictions as to the appropriate assessment process.
Are there any other obligations for Government or consent authorities?
A "controlled action" subject to assessment under Part 3A, 4 or 5 of the Planning Act would also be subject certain additional requirements proposed under the Agreement.
Firstly, the NSW Environment Minister, Director General or consent authority would be required to issue guidelines to proponents of "controlled actions" to ensure that the assessment materials prepared by the proponent contain, amongst other things, all relevant impacts of the action, enough information for the Commonwealth Minister to make an informed decision, and address matters usually addressed in a draft public environment report and environmental impact statement under the EPBC Act. The assessment report must include certain other information, including descriptions of feasible mitigation measures for, and alternatives to, the "controlled action".
Secondly, the assessment would need to be released for public comment for at least 30 days. This would not be an onerous obligation as public exhibition requirements of that standard are already required under Part 3A of the Planning Act in respect of the environmental assessments, and Parts 4 and 5 with respect to environmental impact statements.
The consent authority would also submit the assessment report, a copy of proposed or applicable approval conditions, any other information available or used by that consent authority in its decision making process, and a copy of any statutory inquiry report to the Commonwealth Minister.
Slightly different obligations apply in respect of assessments made under the TSC Act and the Fisheries Act.
What does this mean for future development in NSW?
Generally speaking, the streamlining of the environmental impact assessment process will be beneficial for those undertaking projects which include "controlled actions" in NSW because duplication and costs of such processes will be minimised. Apart from this benefit, many measures are being proposed to improve the planning process. For example, the Commonwealth and NSW would agree to develop administrative arrangements which will align the referral process under the EPBC Act with the NSW planning regime, where possible allowing proponents to simultaneously satisfy both Commonwealth and NSW requirements.
It is also proposed that the Commonwealth and NSW would inform each other of any conditions of approval to take the action, and use their best endeavours to put into place co-operative arrangements for monitoring compliance with conditions in relation to any action approved. The rationale for these arrangements appears to be directed towards reducing the burden on the proponent by ensuring that reporting and other monitoring requirement (for example, site inspections) are not duplicated.
The need to avoid inconsistent approval conditions is also recognised, and a strategy would be put in place whereby the parties:
Overall, if the Agreement can achieve its stated objectives, it will minimise costs associated with duplication of environmental impact assessment processes under both State planning laws, and the "controlled action" provisions of the EPBC Act, without radically changing the basic framework in which the two systems operate.
