27 Oct 2016

NSW Environmental Impact Assessment process shake-up

By Claire Smith and Laura Waterford

Submissions to the first phase of the EIA Improvement Project are due by 27 November 2016.

 As part of its EIA Improvement Project, the NSW Government is proposing broad reforms to the Environmental Impact Assessment (EIA) process for State Significant Development and State Significant Infrastructure projects in NSW to address various problems with the EIA process.

Problems with the existing EIA process identified to date

Stakeholders have identified a range of problems with the existing EIA process, including:

  • inconsistent and poor quality documents which are difficult to understand;
  • a lack of confidence in the project assessment process resulting from a failure to focus on the most important impacts and poor consideration of cumulative impacts;
  • the need for earlier and better community engagement;
  • the complexity of the process and its long and uncertain timeframes;
  • uncertainties regarding approved projects and how compliance will be verified during construction and operation; and
  • uncertainties in respect of project changes that occur following approval.

What is being proposed for the EIA process?

The EIA Improvement Project is proposing the following improvements which will be supported by EIA guidelines targeted at project proponents, their consultants and the community:

  • prioritisation of the most important issues during the EIA process;
  • earlier and better community engagement;
  • improved consistency and quality of EIA documents;
  • greater consistency in the application of conditions to projects;
  • improved accountability of EIA professionals;
  • greater certainty on EIA timeframes;
  • strengthened monitoring, auditing and reporting of compliance; and
  • more effective communication of changes to approved projects.

According to the discussion paper, a framework of principles addressing: proportionality, ecologically sustainable development, a hierarchy of responses to impacts, effective consultation, cumulative impacts, integrity and confidence, consistency of conditions/compliance and a focus on environmental outcomes throughout the project lifecycle will be used to implement the above improvements.

Compliance and standardised approach to conditions

The call for standardised conditions and more rigorous monitoring, auditing and reporting requirements for SSD Projects is likely to have a significant impact on proponents and is already being seen through the approach adopted to regulate mining development. The discussion paper identified the following possible strategies to facilitate this outcome:

  • giving priority to outcome or performance-based conditions rather than relying on management plans to guide projects through the construction and operation stages;
  • developing a common system for monitoring, auditing and reporting compliance;
  • introducing requirements for mitigation measures in the EIA documents to be drafted in such a way that they can be incorporated into conditions;
  • promoting greater accountability by improving public access to post-approval documents; and
  • clarifying the roles, obligations and rights of everyone involved in compliance.

EIA professionals

Other ideas put forward in the discussion paper which are aimed at achieving better environmental outcomes include requiring EIA professionals to adhere to a code of practice and strengthening the role of peer review practices in relation to the preparation of EIA documents.

Community engagement

In addition to those measures, the paper identifies the need to better facilitate community engagement during the EIA process by:

  • requiring proponent-led engagement during the scoping (pre-lodgement) phase to ensure a better understanding of the issues of greatest significance to the affected community;
  • requiring proponents and decision-makers to inform community members as to how their views have been taken into account;
  • introducing options for Department led engagement on key issues; and
  • ensuring EIA documentation is publicly available at all times.

Other measures

The discussion paper also recognises the importance of:

  • providing better guidance about the required form, content and quality of EIA documents;
  • setting timeframes for each stage of the EIA process including the post-approval phase; and
  • better co-ordination and communication between Government agencies, proponents and the community.

What's next

The discussion paper is Stage 1 of a three stage consultation process. Based on responses to the discussion paper, which are due by 27 November 2016, the NSW Government will release draft EIA guidelines for Stage 2 of the consultation in 2017 followed by a Stage 3 public exhibition phase.

Please contact us if you would like any further information or assistance with drafting submissions in response to the EIA Improvement Project.

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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.