The Commonwealth Environment Protection and Biodiversity Conservation Act 1999

Changes to Commonwealth Environmental Assessment and Approval of Developments
The Commonwealth Environment Protection and Biodiversity Conservation Act 1999

Introduction
How Does the EPBC Act Work?
Matters of National Environmental Significance
Commonwealth Areas
Proponent Obligations
What is an "Action"?
What is a "Controlled Action"?
What is a "Significant Impact"?
Existing Projects
Steps in the Assessment and Approvals Process
Implications for Local Government
Implications for State Government Agencies
Implications for Proponents in Tasmania
Approvals Granted to Persons, Not Land
How Can Potential Duplication be Minimised?
Bilateral Agreements
Further Information

 

Introduction

The purpose of this Notice is to provide Tasmanian Government agencies, local government, proponents and the community with an outline of the environmental assessment and approvals processes under the Commonwealth’s Environment Protection and Biodiversity Conservation Act 1999 ("EPBC Act") that commenced on 16 July 2000.

The EPBC Act replaces several Commonwealth Acts including the Environment Protection (Impact of Proposals) Act 1974 (Cwlth).

The EPBC Act establishes an environmental assessment and approval system that is separate and distinct from State systems. It does not affect the validity or conduct of State-based environmental and development assessments and approvals. Tasmanian Acts and systems are neither replaced nor altered by the EPBC Act. The EPBC Act establishes a parallel Commonwealth environmental assessment and approval system to State systems, although there are mechanism for accrediting State assessment and approval processes.

The Commonwealth’s EPBC Act regulates proponents directly and civil and criminal penalties apply for breaches of the Act. Therefore, although the EPBC Act is not an Act for which the State has any responsibility, the Tasmanian Government has prepared this Notice to assist Tasmanian stakeholders to become aware of their obligations to the Commonwealth Government under the EPBC Act.

How Does the EPBC Act Work?

The EPBC Act provides that a person must not take an action that has, will have or is likely to have a significant impact on a matter of national environmental significance, except where certain processes have been followed and/or certain approvals obtained. Penalties for unlawfully taking such an action include a fine of up to $5.5 million or up to 7 years imprisonment.

What are Matters of National Environmental Significance?

Matters of national environmental significance under the EPBC Act are:

World Heritage properties

Further matters of national environmental significance may be prescribed by regulation.

Approvals Also Required in Commonwealth Areas

The EPBC Act also provides that, except where certain processes have been followed and/or certain approvals obtained, a person must not take an action that has, will have or is likely to have a significant impact on the environment: in Commonwealth areas; or on land outside Commonwealth areas where the significant impact would be on the Commonwealth area; or on land anywhere where the action is taken by the Commonwealth.

Proponent Obligations

The EPBC Act requires proponents of actions to which the EPBC Act may apply to seek a determination from the Commonwealth Environment Minister regarding whether or not their proposed action is a controlled action. Proponents must then, if the Act applies, seek approval for the controlled action directly from the Commonwealth Environment Minister. The State Government is not able to advise proponents on whether or not any particular proposal is affected by the EPBC Act – this advice can only come from the Commonwealth Environment Minister.

What is an "Action"?

The EPBC Act defines the term "action" as including a project, a development, an undertaking, and an activity or series of activities.

A decision by a government body to grant an authorisation (for example, a planning approval or a licence) or to provide funding by way of a grant is not an action under the EPBC Act.

What is a "Controlled Action"?

Actions that have, will have or are likely to have a significant impact on a matter of national environmental significance and actions in Commonwealth areas are known as a "controlled actions" and require approval under the EPBC Act.

An action undertaken outside of the boundaries of a matter of national environmental significance such as a Ramsar wetland or World Heritage Area, might still require approval under the EPBC Act if the action has, will have or is likely to have a significant impact on that matter of national environmental significance.

What is a "Significant Impact"?

The Commonwealth Government has developed guidelines to provide guidance on whether a proposed action is likely to have a "significant impact" on a matter of national environmental significance.

The guidelines are broad in nature, hence it may frequently be unknown whether an action will trigger the EPBC Act until preliminary investigations have been done and the proposal is referred to the Commonwealth Environment Minister.

The guidelines contain specific detailed information on mineral exploration, urban development, local government and marine activities.

What About Existing Projects?

The Commonwealth has provided the following advice in relation to existing projects that involve actions that have, will have or are likely to have a significant impact on matters of national environmental significance.

Existing actions

The EPBC Act provides that an action does not require approval under the Act if it is a lawful continuation of a use of land, sea or seabed that was occurring before 16 July 2000.

An enlargement, expansion or intensification of use is defined not to be a continuation of a use and therefore may be caught by the EPBC Act if it has, will have, or is likely to have a significant impact on a matter of national environmental significance.

Actions that have Commonwealth or State approval prior to 16 July 2000 but have not commenced.

The EPBC Act provides that actions that were specifically authorised under the law of the Commonwealth or a State prior to 16 July 2000, do not require approval under the EPBC Act. (Under some circumstances the Commonwealth Minister and the proponent will have to agree if the assessment is to continue under the provisions of current Commonwealth legislation).

This does not apply in the case of actions that have been previously approved, if immediately before 16 July 2000, an action requiresa further authorisation under Commonwealth or State law before that action could be taken.

Actions subject to a Commonwealth or State assessment process at 16 July 2000 and not yet approved.

If the project is designated under the Commonwealth Environment Protection (Impact of Proposals) (EPIP) Act 1974, and has not been approved by 16 July 2000, the EPIP process will continue to apply, and projects will be assessed under the provisions of the EPIP Act.

If the project is being assessed under State legislation at 16 July 2000 and has not obtained all necessary approvals, any controlled actions will require approval under the EPBC Act. The Commonwealth has indicated that State assessments may be able to be taken into account in considering approvals under the EPBC Act.

What are the Steps in the Assessment and Approvals Process Under the EPBC Act?

1. Referrals

A person proposing to take an action that the person thinks may be or is a controlled action must refer it to the Commonwealth Environment Minister in accordance with the requirements of the EPBC Act.

The Commonwealth Environment Minister must decide whether or not the proposed action requires approval under the EPBC Act. The Minister may provide advice that an action proposed to be undertaken in a specified manner does not require approval under the EPBC Act, provided the action is taken in the specified manner.

2. Assessments

Having decided that an action is a controlled action, the Commonwealth Environment Minister determines the assessment approach to be adopted to assess the relevant impacts of the proposed action on matters of national environmental significance. There are a number of environmental assessment approaches available to the Commonwealth under the EPBC Act including, assessment on preliminary documentation, a public environment report, an environmental impact statement or a public inquiry.

It is also possible for actions to be assessed by the State on behalf of the Commonwealth under an accredited assessment process either under a bilateral agreement (see below), or on a case by case basis.

3. Decisions

After the assessment process has been completed, the Commonwealth Environment Minister must decide whether or not to grant approval for the taking of the action and may set conditions for the approval.

What are the Implications of the EPBC Act for Local Government?

Councils have no obligation to ensure that any approvals they may grant have also received any necessary EPBC Act approval as the responsibility rests with the proponent. However, where the Council is a proponent, it is the responsibility of the Council to determine if EPBC Act approval may be required for actions undertaken.

Councils should carefully consider whether any proposed activities of Council are likely to have a significant impact on a matter of national environmental significance, and if in any doubt, should refer proposals to the Commonwealth Environment Minister for determination as to whether the action requires approval under the EPBC Act.

What are the Implications of the EPBC Act for State Government Agencies?

State Government agencies generally have no obligation to ensure that any approvals they may grant have received any necessary approval under the EPBC Act prior to granting of the State approval. It is however, the responsibility of all State Government agencies to determine whether or not an EPBC Act approval may be required for any actions that they propose to undertake as proponents.

Government agencies should carefully consider whether any of their proposed activities are likely to have a significant impact on a matter of national environmental significance, and if in any doubt, should refer proposals to the Commonwealth Environment Minister for determination as to whether the action requires approval under the EPBC Act.

What are the Implications of the EPBC Act for Proponents in Tasmania?

It is the responsibility of all proponents to determine whether or not to refer a proposed action to the Commonwealth Environment Minister under the EPBC Act.

Proponents should carefully consider whether their proposed activities are likely to have a significant impact on a matter of national environmental significance, and if in any doubt, should refer proposals to the Commonwealth Environment Minister for determination as to whether the action requires approval under the EPBC Act.

The EPBC Act provides that a person wishing to know whether an approval under the Act is required for a particular action can obtain a decision regarding the need for an approval from the Commonwealth Environment Minister within 20 business days after making a referral, provided the Commonwealth Minister has sufficient information on which to make the determination.

Approvals Granted to Persons, Not Land

Unlike planning approvals under the Tasmanian Land Use Planning and Approvals Act 1993, approvals granted under the EPBC Act do not run with the land; they are personal to the applicant. An approval granted under the EPBC Act to a person to take an action can only be transferred to another person with the consent of the Commonwealth Environment Minister. This means that an approved activity may lose its use rights under the EPBC Act if the owner changes and Commonwealth Ministerial consent is not sought.

How Can Potential Duplication be Minimised?

The Commonwealth EPBC Act will inevitably result in some overlap and duplication with the State’s regime. Within the confines imposed by the EPBC Act, the State Government will continue to strive to minimise the potential for duplication and delay in the assessment of proposals arising from the EPBC Act.

Bilateral Agreements

The EPBC Act provides for "accreditation" of certain State Government processes under a bilateral agreement between Commonwealth and State Governments.

Under an "assessment bilateral", particular State environmental impact assessment processes may be accredited. The effect of accreditation of a State assessment process is that a proponent would need to complete only the accredited State assessment. The Commonwealth Environment Minister would then primarily rely on the information from that accredited State assessment for making a decision on whether to grant or refuse an approval under the EPBC Act.

A bilateral agreement between the Commonwealth and Tasmania which accredits the Tasmanian level 2 process (assessment by Board of Environmental Management and Pollution Control under the Environmental Management and Pollution Control Act 1994) and Tasmanian level 3 process (environmental assessment of a Project of State Significance by the Resource Planning and Development Commission under the State Policies and Projects Act 1993) was signed on 15 December 2000. The bilateral agreement expires on 14 December 2005.

To ensure that the State’s assessment includes information that the Commonwealth will require to make a decision, it is recommended that the referral of the proposal to the Commonwealth occurs before the State’s assessment process commences.

It should be noted that proponents need to refer proposals to the Commonwealth for determination as to whether the proposed action is a controlled action, in addition to applying for approval under the State’s legislation.

Further Information

Further information about the EPBC Act and related matters, including background brochures, administrative guidelines on what is a significant impact, and referral requirements, can be obtained from the Commonwealth Department of the Environment and Heritage external link website or by contacting:


Contact: Commonwealth Department of the Environment and Heritage

Community Information Unit
GPO Box 787
Canberra ACT 2601
Phone: 1800 803 772

Disclaimer - This information notice is intended to provide a general overview of a complex legislative scheme. While all reasonable effort has been made to ensure the contents of this information notice are correct at the time of printing, this is not a legal document. It should NOT be used to determine whether or not the EPBC Act applies or what the requirements of the Act are in specific cases. The Tasmanian Government does not accept responsibility for the accuracy or the completeness of the contents, and shall not be liable for any loss or damage that may be occasioned directly or indirectly through the use of, or reliance on, the contents of this information notice.

Acknowledgments

The Tasmanian Government acknowledges the assistance of officers from other States and Territories in the preparation of this notice.