Development projects requiring approval under both the Commonwealth Environment Protection and Biodiversity and Conservation Act 1999 ("EPBC Act") and Victorian planning and environmental legisflation could enjoy a streamlined assessment process under a bilateral agreement that is currently being negotiated between the Commonwealth and the State of Victoria.
This article provides an outline of the draft Victorian Bilateral Agreement and considers the effectiveness of bilateral agreements in other jurisdictions in light of submissions received by the current inquiries into the EPBC Act.
Assessment under the EPBC Act
Under the EPBC Act "actions", that is projects, developments, undertakings and activities (and any changes to them) that:
- have, will have or are likely to have a significant impact on matters of national environmental significance (MNES); or
- are carried out on Commonwealth land or by Commonwealth agencies that have, will have, or are likely to have a significant impact on the environment,
require approval by the Commonwealth Environment Minister under the EPBC Act. These actions are known as "controlled actions".
Development projects which are controlled actionsfrequently also require assessment and approval under State planning and environmental legislation, with the effect that a dual process of environmental impact assessment is required. In Victoria, exceptions to this have been limited to circumstances where the Minister has accredited a particular assessment process such as an Environment Effects Statement ("EES") under the Environment Effects Act 1978. However, these decisions are made on a case-by-case basis and have almost exclusively been confined to projects requiring an EES.
What is the effect of the Draft Victorian Bilateral Agreement?
The main purpose of the draft Victorian Bilateral Agreement is to minimise duplication of environmental impact assessment under Commonwealth and Victorian legislation. It does this by accrediting the following Victorian assessment processes for the purposes of assessing an action under the EPBC Act:
- Environment Effects Statements (EES) under the Environment Effects Act 1978 (Vic);
- advisory committee and combined advisory committee/planning panel processes under the Planning and Environment Act 1987 (Vic);
- planning permit applications under the Planning and Environment Act 1987 (Vic);
- works approval applications under the Environment Protection Act 1970 (Vic);
- assessment by a panel appointed under the Water Act 1989 (Vic) of an application for a bulk entitlement (or amendment of a bulk entitlement) or a license to take and use water.
The draft Bilateral Agreement will not alter the referral process under the EPBC Act. A person proposing to take an action that the person thinks is or may be a controlled action will still be required to make a referral to the Commonwealth Environment Minister.
However, where the Minister decides that the referred action is a controlled action, the action may be assessed for the purposes of the EPBC Act under one of the Victorian accredited assessment processes. This means that proposed actions that would otherwise require assessment under Part 8 of the EPBC Act will be assessed using one of the Victorian accredited assessment processes for the purposes of both the EPBC Act and the relevant Victorian legislation.
The draft Bilateral Agreement deals only with the assessment of a controlled action. A controlled action will still require approval from the Commonwealth Environment Minister under the EPBC Act. Accordingly, decisions about whether to grant approval, as well as approval conditions, will continue to be made by the Commonwealth Environment Minister in respect of MNES.
What development does the Draft Victorian Bilateral Agreement apply to?
The draft Bilateral Agreement will only apply to controlled actions that take place wholly within Victoria, including its coastal waters. It will not apply to actions on Commonwealth land or actions by the Commonwealth or its agencies, although this is currently the subject of COAG discussions. Where controlled actions take place within more than one jurisdiction, then the Commonwealth and Victoria agree to consult in order to reach agreement with other jurisdictions as to the appropriate assessment process.
Which Victorian assessment process will apply?
Under the draft Bilateral Agreement the Commonwealth Environment Minister can request that an action not be assessed by planning permit application, works approval application under the Environment Protection Act or assessment by a panel under the Water Act for a bulk entitlement or licence to take and use water. In those circumstances, the action will need to be assessed under one of the two remaining accredited assessment processes under the Agreement.
Will there be any changes to the Victorian assessment processes?
The draft Bilateral Agreement contains specific requirements in relation to each accredited assessment process which will need to be observed to avoid assessment under Part 8 of the EPBC Act. Some of these are directed to ensuring that the development project is broadly advertised, including on Department of Planning and Community Development website and linked to the Commonwealth Department Environment and Heritage website. Other requirements are directed at ensuring that the proponent responds to public comments on the relevant impacts of the action where there is no public hearing.
Each assessment process requires an assessment report to be prepared and provided to the Commonwealth Environment Minister together with any other assessment documentation pertaining to relevant impacts. The matters to be addressed by the assessment report are also specified and include not only a description of the action and its impacts, feasible mitigation measures and any feasible alternatives, but also a statement of approval conditions that may be imposed to address identified impacts on MNES and State approval requirements and conditions that are proposed to apply.
What does this mean for future development in Victoria?
If the draft Bilateral Agreement can achieve its stated objectives, it will minimise costs associated with duplication of environmental impact assessment processes under both Victorian legislation and the controlled action provisions of the EPBC Act without radically changing the basic framework in which the two systems operate.
The Agreement includes administrative procedures to support the accredited assessment processes, with many of these measures likely to lead to a further streamlining of the assessment process. For example, the Commonwealth and Victoria will agree to develop administrative arrangements to streamline the referral process so as to allow proponents to simultaneously satisfy both the EPBC Act and Victorian legislative requirements where possible.
The need to avoid inconsistent approval conditions is also recognised, with the Commonwealth and Victoria agreeing to consult one another in respect of approval conditions, including any variation of approval conditions.
It is also proposed that the Commonwealth and Victoria agree to co-operate in the ongoing monitoring of proponent compliance with approval conditions. The stated rationale for these arrangements is to reduce the burden on the proponent by ensuring that reporting and other monitoring requirements are not duplicated.
However, the use of accredited assessment processes under bilateral agreements in other jurisdictions has not been without its critics.
Have bilateral agreements in other jurisdictions been successful?
Bilateral agreements for environmental impact assessment already exist between the Commonwealth and South Australia, New South Wales, Queensland, the Northern Territory, Tasmania and Western Australia. Victoria and the Australian Capital Territory are the only jurisdictions yet to sign bilateral agreements of this nature with the Commonwealth.
Bilateral agreements must be reviewed every five years to determine whether or not they are meeting their objectives. Favourable reviews of the Western Australia and the Northern Territory Bilateral Agreements were delivered in 2006. However, perhaps the best gauge of the effectiveness of bilateral agreements will be providedby the Senate Inquiry into the operation of the EPBC Act and at the conclusion of the current EPBC Act Independent Review by Dr Allan Hawke.
With over 100 public submissions to the Senate Inquiry and over 200 public submissions to the Hawke Review, a wide range of issues were raised by stakeholders in relation to the operation of the EPBC Act. Of those submissions that commented on the effectiveness of bilateral agreements, a key concern was that despite the current environmental assessment bilateral agreements there was evidence that proponents continued to experience duplication and overlap between Commonwealth and State/Territory assessment processes.
Concerns were also raised by environmental groups that the accredited assessment arrangements under the bilateral agreements did not adequately protect MNES, arguing that some accredited assessment processes have less rigorous assessment requirements to protect MNES than those of the EPBC Act. For example, in a submission to the Hawke Inquiry, the World Wildlife Fund stated:
"For the most part the Bilateral Agreements negotiated to date have led to streamlining of processes but have had questionable impact on raising the standards for protection for MNES and accountability of approval processes and subsequent conditions or offsets. This is an opportunity lost and the South Australia's recent bilateral is a case in point."
In order to address these concerns, the Senate Inquiry recommended that the Hawke Review and/or the Australian National Audit Office further examine the effect of existing bilateral agreements on the quality of environmental assessments on MNES.
Despite some of the concerns raised over the effectiveness of bilateral agreements, submissions from both industry and State/Territory governments to the Senate Inquiry and Hawke Review indicate a desire for an even greater role for bilateral agreements under the EPBC Act, particularly with respect to the accreditation of State approval processes.
While at the time of writingwe await the findings of theHawke Review, it would appear that assessment bilateral agreements are likely to remain a key feature of the EPBC Act as is apparent by the proposed Victorian Bilateral Agreement. The challenge will remain in ensuring bilateral agreements allow for streamlining of assessment and approvals processes while continuing to adequately assess MNES.
Thanks to Natalie Hewitt and Elina Spilia for their assistance in writing this article.