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26 Nov 2009

Strategic assessments and the Melbourne Urban Growth Boundary Program

by Sallyanne Everett, Hayley Jones

A strategic assessment can avoid unnecessary duplication of the assessment of environmental impacts, but require considerable time and resources at an early stage of the process.

The Commonwealth Government is advocating the use of strategic assessments as a way to streamline environmental assessment and approvals under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and gain better environmental outcomes for matters of national environmental significance.

Development projects requiring approval under the EPBC Act are generally referred, assessed and approved on a project specific basis. However, the strategic assessment of actions proposed to be undertaken as part of a policy, plan or program offers the opportunity for early approval of actions or a class of actions in accordance with an endorsed program without the need for further assessment or approval under the Act.

In this article we provide an overview of strategic assessments drawing on the example of the Melbourne Urban Growth Boundary Program and look at some of the benefits and disadvantages associated with this type of assessment.

What are strategic assessments?

The EPBC Act allows the Commonwealth Environment Minister to enter into an agreement with a person responsible for the adoption or implementation of a policy, plan or program to conduct a "strategic assessment" of potential actions under the program on matters of national environmental significance. Strategic assessments can be particularly relevant to a region-wide development or urban growth area, allowing consideration of the cumulative impacts of all actions likely to occur under the program.

It is a collaborative assessment process involving the Commonwealth, the person responsible for the program (usually a governmental body or agency responsible for the program's implementation) and the community, with the draft assessment report to be made available for public comment.

While strategic assessments have been available under the EPBC Act since 2000, it has only been since the Act was amended in 2007 that the Commonwealth Minister has had increased power to approve actions or a class of actions undertaken in accordance with an endorsed policy, plan or program.

What is the difference between a strategic assessment and the normal approval process?

Ordinarily, projects are referred to the Commonwealth Environment Minister for assessment as to whether they are "controlled actions" and subsequent approvals are granted, on a project-specific basis.

However, where the Commonwealth Environment Minister is satisfied that the strategic assessment adequately addresses the impacts of the policy, plan or program he or she may endorse the proposal and approve the taking of actions in accordance with the plan at the same time. This appears to allow projects to be approved without the same degree of specificity as an individual project, such as an infrastructure project, where the parameters of the project are usually well defined.

As long as actions keep within the scope of the approved policy, plan or program, management processes set out in the strategic assessment report and any approval conditions imposed by the Commonwealth Environment Minister, no further assessment or approval is required for the purposes of the EPBC Act.

Strategic assessment of the Melbourne Urban Growth Boundary Program

On 4 March 2009, the Commonwealth Environment Minister signed an agreement with the Victorian Government to undertake a strategic assessment of the Melbourne Urban Growth Boundary Program.

The strategic assessment proposes to cover potential impacts on matters of national environmental significance of actions stemming from revisions to the Urban Growth Boundary as described in the "Melbourne @ 5 Million" report, and from certain related projects identified in the Victorian Transport Plan.

Specifically, the strategic assessment encompasses the following areas of land and infrastructure:

  • the investigation areas shown in the "Melbourne @ 5 Million" report and the subsequent extension of these areas;
  • areas inside the existing urban growth boundary for which a planning scheme amendment to introduce a Precinct Structure Plan had not commenced as at 26 May 2009;
  • areas in the Outer Metropolitan Ring Transport Corridor, the E6 Transport Corridor and the Regional Rail Link corridor between West Werribee and Deer Park as discussed in the Victorian Transport Plan.

A draft strategic assessment report, "Delivering Melbourne's Newest Sustainable Communities", states that as a result of the Program, some key environmental impacts will occur, including:

  • clearing of native vegetation, including up to 7000 hectares of Natural Temperate Grassland;
  • impacts on listed fauna species, including in particular the striped legless lizard, golden sun moth and the growling grass frog; and
  • impacts on listed flora species, including the matted flax-lily and spiny rice-flower.

The draft report also details some ways in which it is proposed to mitigate the impacts of actions on matters of national environmental significance, including how the Program area has been refined to avoid clearing vegetation, and notes that the Victorian Government proposes to protect two areas of approximately 15,000 hectares of native grassland to the west of Melbourne by way of offsetting the clearance of native vegetation and habitat for protected species within the Urban Growth Boundary area.

Status of the Strategic Assessment of the Melbourne Urban Growth Boundary

Following the receipt of public submissions, amendments to the alignment of transport corridors and the boundary of the grassland reserves were prepared and affected land-owners were given further opportunity to comment.

The Victorian Government has now submitted a Final Report to the Commonwealth Environment Minister, and this has recently been made publicly available. In conjunction with the Final Strategic Impact Assessment Report, the Victorian Government prepared and submitted a Program Report, outlining how it proposes to manage the impacts of implementing the Urban Growth Boundary Program, including proposed mitigation measures. If satisfied that the Final Report and Program Report adequately addresses the impacts on matters of national environmental significance, the Commonwealth Environment Minister may endorse the Program.

What does this mean for actions forming part of the Melbourne Urban Growth Boundary Program?

If the Commonwealth Environment Minister endorses the Program, he may then approve actions or a class of actions proposed to be carried out under it with or without conditions. The effect of that approval is that, for the purposes of the EPBC Act, the taking of each action, or each action in a class of action, specified in the approval decision is approved.

The approved action is a "controlled action" under the EPBC Act and the usual provisions in relation to approval conditions, the variation, suspension and revocation of approvals and transfer of approvals will apply.

Are State approvals still required?

The strategic assessment of the Program has not been negotiated to cover Victorian environmental assessment requirements, and so referral under the Environment Effects Act 1978 (where relevant) is still required.

Two transport corridors within the Program - one for the Regional Rail Link and the other for Outer Metropolitan Ring Road - have been referred under the Act and assessed by the Planning Minister as not requiring an Environment Effects Statement, subject to conditions. In both cases, reference was made in the Minister's reasons to the strategic assessment of the Program as a supporting factor in his decision that no EES was required.

Planning approvals will still be required for many aspects of the Program, however this will be subject to Amendment VC55 to be incorporated into all Victorian planning schemes to facilitate the objectives of the Delivering Victoria's Newest Sustainable Communities package and the Program. While the Planning Minister approved Amendment VC55 on 11 November 2009, it will only come into operation once ratified by Parliament and new legislation providing for the payment of a growth areas infrastructure contribution has been passed and commenced operation.

Where are other strategic assessments happening?

In addition to the Melbourne Urban Growth Boundary Program, two other land-based strategic assessments have commenced, namely:

  • the common-user liquefied natural gas hub and heritage assessment in the West Kimberley (WA); and
  • the Molonglo and North Weston Structure Plan (ACT).

Further strategic assessments are in negotiation but have not yet commenced, including:

  • Sydney Growth Centres in Western Sydney (NSW);
  • Abbot Point in Bowen (Queensland); and
  • the Perth Metropolitan Area (WA).

The benefits and disadvantages of strategic assessment

Based on the existing assessment processes available under the EPBC Act, the key advantages of a strategic assessment include:

  • the provision of a timely approval process for developers without the need for further assessment following endorsement of the relevant policy, plan or program;
  • the ability to assess the cumulative impacts of development proposals within the area covered by the policy, plan or program;
  • the ability to more clearly define at the outset, areas of strategic environmental importance within the area assessed;
  • the ability to plan in a holistic manner, avoidance, mitigation and offset measures to facilitate implementation of the program;
  • potentially better overall environmental outcomes at a reduced cost for developers; and
  • increased certainty for developers and the community.

A strategic assessment can avoid unnecessary duplication of the assessment of environmental impacts and offer a proactive method of holistically assessing environmental impacts within a region.

In relation to the Urban Growth Boundary Program, a further outcome of the strategic assessment for property developers and proponents of large infrastructure projects is likely to be that native vegetation and species offsets will be clearly identified upfront and available for purchase from the Victorian Government.

On the other hand, a strategic assessment will require considerable investment of time and resources at an early stage of the process. This may be one reason why the relevant State and Territory Governments have been the persons responsible for the programs being assessed thus far, although this role could be taken by a local council or indeed a property developer.

A further challenge of a strategic assessment process is ensuring that a sufficient level of detail is provided in the reports forwarded to the Commonwealth Department. As noted in the Hawke Review Interim Report, it is essential for strategic assessments to be prepared and assessed in a rigorous manner, in order to instil confidence in the process and adequately deal with matters of national environmental significance.

Conclusion

The strategic assessment of actions within large areas may provide benefits for proponents in obtaining approval under the EPBC Act and for the broader community in protecting matters of national environmental significance. The strategic assessment of the Melbourne Urban Growth Boundary Program is one of the first land-based strategic assessments to take place in Australia and is likely to be seen as a test case for the process. Accordingly, the progress of the strategic assessment of the Urban Growth Boundary Program, including the Commonwealth Government's response, will remain a space to be watched with keen interest for property developers and proponents of large infrastructure projects.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.