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Focus: Environment & Planning – October 2008

Draft Victorian environmental impact assessment bilateral agreement released

In brief: Federal Environment Minister Peter Garrett has released for comment a draft bilateral agreement with the Victorian Government that provides for the accreditation of several Victorian environmental assessment processes. The agreement allows for a more streamlined approval process for projects that require state and federal approval. Senior Associate Meg Lee reports.

How does it affect you?

  • Accreditation of the state processes will streamline and simplify assessment processes for large projects; however, separate state and federal approvals will still be required.
  • Victorian decision-makers will need to adapt current application processes in order to comply with the agreement

Overview

The draft Victorian bilateral agreement accredits, subject to certain conditions, the key Victorian environmental impact assessment processes of:

  • Environmental Effects Statement (EES) inquiries under the Environmental Effects Act 1978 (Vic);
  • advisory committee and combined advisory committee/planning panel processes under the Planning and Environment Act 1987 (Vic);
  • planning permit application processes under the Planning and Environment Act;
  • works approval application processes under the Environment Protection Act 1970 (Vic); and
  • assessments by panels appointed under the Water Act 1989 (Vic) for bulk entitlements or 'take and use' licences.

While ad hoc federal accreditation of the Victorian EES processes has been relatively common since the commencement of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) in mid-2000, accreditation of the Advisory Committee process under the Planning and Environment Act has only occurred once, for the Sugarloaf Pipeline project. Accreditation of the other processes has never occurred. The wide scope of the draft agreement therefore comes as a welcome surprise.

The Federal and Victorian governments have also agreed to develop various streamlined processes to minimise duplication in the referral process and in reporting requirements under the conditions of approvals.

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Background

In an effort to avoid duplication for proponents, decision-makers and objectors, the EPBC Act provides for a process of accreditation by the Commonwealth of state- and territory-based environmental impact assessment and approval processes, either on an ad hoc basis or by way of ongoing agreement to accredit certain types of assessment and approval processes. Accreditation of an assessment process avoids the need for parties to go through separate federal and state environmental assessment processes for the same project. Accreditation of a state or territory approval would mean that the approval counts as a valid approval under the EPBC Act of the particular project.

Since the commencement of the EPBC Act in 2000, the bilateral agreement process provided for in the EPBC Act has been slow to be taken up by the states. The first states to enter into bilateral agreements relating to assessment processes were Queensland in 2004 and Tasmania in 2005. In the past two years, New South Wales, Northern Territory, Western Australia and South Australia have all entered into bilateral agreements with the Federal Government to accredit the environmental impact assessment processes in those jurisdictions. Victoria and the Australian Capital Territory are the last jurisdictions to reach agreement with the Federal Government. No jurisdictions have entered into bilateral agreements relating to their approval of projects.

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What does the draft agreement do?

The draft Victorian agreement provides that an action carried out wholly within Victoria does not require assessment under Part 8 of the EPBC Act, if the action has been assessed in the manner specified in Schedule 1 of the Agreement.

Schedule 1 lists not only the EES process, but also planning permit processes and water licence application processes. A summary of the accredited process and the conditions of the accreditation is as follows:

  • An EES prepared in relation to a project and submitted to the Victorian Minister for Planning under section 4 and s8 of the Environment Effects Act, provided that:
    • the scoping document issued by the Minister requires all relevant EPBC Act impacts to be assessed;
    • the EES is prepared in accordance with relevant EBPC Act guidelines;
    • the public is given at least 28 days to comment;
    • if an inquiry is not held into the EES, then a supplementary document is prepared by the proponent responding to the public comments;
    • the Minister prepares a report that contains enough information about the relevant impacts of the action for the Federal Environment Minister to make an informed decision on whether to approve the action under the EPBC Act.
  • Assessments carried out under the Planning and Environment Act by advisory committees or joint panel/advisory committees appointed by the Victorian Minister for Planning under s151 or s153 of the Planning and Environment Act, provided that:
    • public notice is given of the terms of reference for the assessment;
    • a hearing is held in public unless the panel/advisory committee decides it is not in the public interest or for reasons of commercial confidence; and
    • a report is prepared by the panel/advisory committee that contains enough information about the relevant impacts of the action for the Federal Environment Minister to make an informed decision on whether to approve the taking of the action under the EPBC Act.
  • Planning permit applications submitted in accordance with s47 of the Planning and Environment Act, provided that:
    • the information that must be submitted with the application is sufficient for assessing the relevant EPBC Act impacts of the proposed action;
    • public notice is given (including on the Department of Planning and Community Development (the DPCD) website) with a minimum 14-day comment period;
    • a supplementary document is prepared by the proponent responding to the public comments;
    • a report is prepared that contains enough information about the relevant impacts of the action for the Federal Environment Minister to make an informed decision on whether to approve the taking of the action under the EPBC Act. Where the report is prepared by a local council, the report must comply with DPCD guidelines.
  • A works approval application submitted in accordance with s19B of the Environment Protection Act, provided that:
    • the information that must be submitted with the application is sufficient for assessing the relevant EPBC Act impacts of the proposed action;
    • the public are invited to comment and at least 21 days is given for comment;
    • a supplementary document is prepared by the proponent responding to the public comments, including potential alternative methods and mitigation measures; and
    • a report is prepared by the Victorian Environment Protection Authority that contains enough information about the relevant impacts of the action for the Federal Environment Minister to make an informed decision on whether to approve the taking of the action under the EPBC Act.
  • Assessments by panels appointed under s39 or s50 of the Water Act of applications submitted either under subsection 36(1) or s44 of the Water Act for a bulk entitlement or amendment of a bulk entitlement, or under s51 of the Water Act for a licence to 'take and use' water, provided that:
    • the information that must be submitted with the application is sufficient for assessing the relevant EPBC Act impacts of the proposed action;
    • the public are invited to comment and at least 14 days is given for comment;
    • a supplementary document is prepared by the proponent responding to the public comments, including potential alternative methods and mitigation measures; and
    • a report is prepared by the panel that contains enough information about the relevant impacts of the action for the Federal Environment Minister to make an informed decision on whether to approve the action under the EPBC Act.

As well as accrediting the various Victorian assessment processes, the agreement provides that the parties agree to develop administrative arrangements that will streamline the referral process for proponents. Where possible, the parties have agreed to develop administrative arrangements that will allow proponents to simultaneously satisfy the requirements of the Commonwealth and Victoria.

Under the agreement, the parties have also agreed to cooperate in monitoring compliance with conditions attached to approvals, with the aim of reducing duplication. The parties aim to put cooperative arrangements in place for monitoring compliance with conditions and to ensure that reporting requirements for the proponent and other monitoring efforts, such as site inspections, are not duplicated.

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What does this mean for you?

The various conditions imposed by the bilateral agreement on the existing state assessment processes include new requirements for proponents to prepare a response report to any objections received and that the decision-maker under the Victorian legislation also prepares a report that adequately addresses the relevant impacts under the EPBC Act so as to assist the Federal Minister to make an informed decision. These are new requirements on existing processes that will need to be factored in by proponents and decision-makers in Victoria.

Once the mechanics of accreditation are ironed out, accreditation of all of the above processes will give proponents certainty and will reduce the timeframe of getting major projects approved.

Public comments on the draft agreement are sought by 5pm on Monday, 10 November 2008.

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