Duplication of Environmental Impact Assessment to be minimised

By Brendan Bateman and Rachelle Hoare.

Key Points:
The bilateral agreement achieved between NSW and the Commonwealth aims to minimise the duplication of environmental impact assessment processes at a Commonwealth level where such assessment has already been carried out at the State level.

As foreshadowed in our last edition, on 18 January 2007, New South Wales and the Commonwealth entered into a Bilateral Agreement under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the "EPBC Act") relating to environmental impact assessment.

The Agreement aims to:

• minimise duplication of environmental impact assessment processes;
• strengthen intergovernmental co-operation;
• promote a partnership approach to environmental protection and biodiversity conservation; and
• ensure that assessment of proposed actions occurs in a timely and efficient manner.

What does this mean in practice?

Where the proposal (or in EPBC terms, the "action") is considered to be a "controlled action" under the EPBC Act, but has been assessed in accordance with:

• either Parts 3A, 4 or 5 of the Environmental Planning and Assessment Act 1979 or
• the listed threatened species and communities provisions under the EPBC Act give rise to the action being a "controlled action", Part 6 of the Threatened Species Conservation Act 1995 (NSW) or Part 7A of the Fisheries Management Act 1994 (NSW) (including in both cases a species impact statement),

then assessment under Part 8 of the EPBC Act (which would have ordinarily required a further round of environmental impact assessment) for the action will no longer be necessary.

By virtue of the Agreement, the Commonwealth Minister will:

• be satisfied that the environmental impact assessment at the State level ensures that the impacts the action has, will have, or is likely to have on matters protected by Part 3 of the EPBC Act will be relevantly assessed; and
• receive a report including, or accompanied by, enough information about those impacts to let him or her make an informed decision as to whether or not to approve the action under Part 9 of the EPBC Act.

By dispensing with the requirement to undertake further environmental impact assessment at the Commonwealth level, the Agreement:

• minimises the amount of duplication between the two levels of approval, which should result in less cost to proponents of actions; and
• is likely to shorten the length of time the approval process at the Commonwealth level takes.

It will be important for proponents of "controlled actions" to ensure that their environmental impact assessment documentation:

• is consistent with the guidelines issued by the New South Wales Planning Minister, Director-General or consent authority; and
• includes certain other information, including descriptions of feasible mitigation measures for, an alternative to, the "controlled action".

We understand that these guidelines are currently being drafted, and that the New South Wales Department of Planning will release them shortly.

The Agreement will expire on 18 January 2012.

Importantly, the approval process under Part 9 of the EPBC Act will still apply. While the EPBC Act does provide for bilateral agreements in relation to approvals, no such agreement has been made at this time with any State or Territory government. It follows that proponents of controlled actions must apply to the Commonwealth Minister for an approval for the action under Part 9 in addition to obtaining all necessary approvals under NSW legislation. Under Part 9 of the EPBC Act, in determining whether to grant an approval, the Minister must take into account:

• the principles of ecologically sustainable development;
• the outcomes of the environmental impact assessment;
• any referral documentation;
• any public comment received;
• any other relevant information available on the impacts of the proposed action;
• the environmental history of the person applying for approval; and
• any relevant comments from other Australian Governments and their Ministers (such as information on social and economic factors).

For further information, please contact Brendan Bateman.