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26 Jun 2014

Victorian EPA's new guideline clarifies its approach to decision-making on works approvals

by Emily Wilde, Sophie Marjanac

Complying with the Guideline will help ensure the EPA has the required material to properly consider the approval application, which could mean quicker decisions.

On 11 June 2014, the Victorian Environment Protection Authority issued a guideline, Application of the Environment Protection Principles to EPA's Approvals Process, explaining how it will consider the "Principles of Environment Protection", which are found in Part 1 of the Environment Protection Act 1970 (Vic).

The Guideline helps project proponents understand how the EPA expects them to consider the Principles when developing proposals and preparing applications for an EPA approval. It should be consulted to assist in ensuring that the decision-making process is as efficient as practicable.

Which development proposals does the Guideline affect?

The Guideline, which is not legally binding, is focused on development proposals that require an EPA approval. The Guideline will generally be relevant to applications for:

  • a Works Approval;
  • an exemption from a Works Approval requirement;
  • an emergency approval;
  • a research, development and demonstration approval; and
  • a licensing approval.

The Guideline is most applicable to Works Approval applications, especially those on the "standard track" assessment pathway.

How do the Principles apply to EPA's approval process?

The Principles may be relevant to proponents throughout the life of a project. However, they will be most relevant during the project planning and approval application phases. The EPA now expects proponents to demonstrate how the Principles have been considered and applied in applications for EPA approvals. It suggests that proponents discuss the applicability of the Principles early in the course of discussions with the EPA, in order to assist proponents in preparing application documentation which adequately demonstrates application of the Principles.

The relevance of each Principle depends upon the environmental issues arising in the context of each individual proposal. The EPA has identified those Principles that it considers to be the most and least relevant to approvals applications:

Often relevant and commonly applied in the approvals process

  • Principle 1B: Integration of economic, social and environmental considerations
  • Principle 1I: The wastes hierarchy
  • Principle 1J: Integrated environmental management

Sometimes relevant and applicable to assessments of particular types of proposals

  • Principle 1C: The precautionary principle
  • Principle 1D: Intergenerational equity
  • Principle 1E: Conservation of biological diversity and ecological integrity

Rarely relevant, but generally applicable to policy making and program development

  • Principle 1F: Improved valuation, pricing and incentive mechanisms
  • Principle 1G: Shared responsibility
  • Principle 1H: Product stewardship
  • Principle 1K: Enforcement
  • Principle 1L: Accountability


How to apply the Principles of Environment Protection

After identifying those Principles which are relevant to their particular project, the Guideline suggests that proponents should consider the following (in relation to the applicable Principle):

Principle

What Proposals will the Principle will be relevant to?

How should the Principle be demonstrated?

The principle of integration of economic, social and environmental considerations aims to optimise the outcome of available trade-offs to improve community wellbeing and the benefit of future generations. Measures adopted should be cost effective and in proportion to the significance of the environmental problems being addressed.

Principle will be relevant to Proposals:

  • that involve large amounts of resources, greenhouse gas generation, or significant hazards to health and environment; or
  • that may have a significant social, economic or environmental impact (whether medium or long term).

Conduct a comparative analysis of competing concerns and implications, including any opportunities to address significant adverse impacts.

The principle of the wastes hierarchy involves a hierarchy of preference for the management of wastes that echoes approaches that are widespread in human health.

Principle will be relevant to Proposals:

  • for which wastes will be generated, recycled, reused, processed, treated, stored and / or disposed of; or
  • for which a number of waste management options with different implications.

Analyse and compare the environmental, technical, logistical and financial issues associated with the proposal, ensuring that the final proposal conforms with best practice, and corresponds to the highest level in the hierarchy.

The principle of integrated environmental management requires that where the management of environmental impacts on one segment of the environment has potential impacts on another segment, the best practicable environmental outcome should be sought.

Principle will be relevant to Proposals that may involve trade-offs between impacts on different sectors or different aspects of environmental management.

Analyse and compare the impacts, benefits and risks associated with each option, and select the best overall environmental approach, ensuring that all options comply with statutory policy and reflect best practice.

The precautionary principle states that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

Principle will be relevant to Proposals:

  • that involve a threat of serious or irreversible environmental impacts with a significant uncertainty about those impacts; or
  • that involve large amounts of resources, greenhouse gas generation, or significant hazards to health and environment.

Gather information and advice (from relevant experts and authorities) about the nature of the threat that the proposal poses to the environment.

The principle of intergenerational equity requires the present generation to ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.

Principle will be relevant to proposals:

  • that involve the generation of significant amounts of greenhouse gases; or
  • that may significantly impact biodiversity of ecological integrity; or
  • that may significantly and adversely affect future generations.

Gather expert information, advice and opinion on the application of this Principle, ensuring compliance with statutory policy requirements for greenhouse gas management and resource efficiency.

The principle of conservation of biological diversity and ecological integrity requires the present generation to protect the natural environment, its species and ecosystems.

Principle will be relevant to proposals that may have significant impacts on biodiversity or ecological integrity.

Gather information about any biodiversity or ecological impacts, from relevant experts and authorities, and undertake surveys and investigations to support the application.


The importance of the Principles to proponents in Victoria

When developing proposals and preparing application documentation for EPA approvals, it is important that the proponent discusses the application of the Principles to their project, and demonstrates how the relevant Principles are embodied in the project.

Complying with the Guideline will assist in ensuring that the EPA has the required material to properly consider the approval application. This, in turn, may assist in reducing decision-making timeframes. 

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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.