Commencement of amendments to the Environmental Protection Act 1994
What are the key changes?
The Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 (Qld) (Greentape Reduction Act) commenced on 31 March 2013 and is now in force.
The Greentape Reduction Act amends the licensing framework under the Environmental Protection Act 1994 (EP Act). The major changes include:
- Previously separate assessment processes applied to the various types of activities requiring approval under the EP Act. The reforms introduce a single streamlined assessment process for all Environmentally Relevant Activities (ERA's), including resource activities (mining, petroleum, geothermal and greenhouse gas storage) and prescribed ERA's (industry and agriculture activities prescribed under the Environmental Protection Regulation 2008 (EP Regulation)).
- The introduction of different levels of assessment proportionate to the potential environmental risk of proposals. The assessment levels range from what is effectively "self assessment" for low risk activities, through to a full impact assessment for large scale higher risk activities. Depending on the level of assessment required, there are three types of application that may be triggered by a proposal:
- Standard application – for ERA's that meet set Eligibility Criteria and Standard Conditions that have been developed for the activity. A standard application requires a certification from the operator that the proposed activity meets both the Eligibility Criteria and Standard Conditions. No assessment of the proposal is required, and the resulting Environmental Authority is issued with the Standard Conditions;
- Variation application – for ERA's that meet set Eligibility Criteria, but requires one or more of the Standard Conditions to be changed. Assessment of a variation application is limited to the conditions the operator is seeking to change; and
- Site-specific application – for ineligible ERA's, where the activity either does not comply with set Eligibility Criteria, there is no set Eligibility Criteria for the activity or it is carried out as part of a project declared a Controlled Project under the State Development and Public Works Organisation Act 1971.
- A number of activities are no longer prescribed ERA's under the EP Regulation, so that an environmental authority is not required. Many of the ERA's that have been deleted are those activities whose administration was previously devolved to local government, including Fuel Storage and Motor Vehicle Workshop. Deregulated businesses will still be required to comply with the general environmental duty under the EP Act.
- The introduction of a staged assessment process similar to the Integrated Development Assessment System (IDAS) under the Sustainable Planning Act 2009 (SPA). The stages of assessment are:
- Application stage – where the application is accepted as "properly made";
- Information stage – where further information can be requested from the applicant;
- Notification stage – where the application documents will be publicly notified (this stage only applies to resource activities); and
- Decision stage – where a decision is made to approve with conditions or refuse the application.
- Changes to the information required to accompany certain types of applications. For example, a plan of operations is no longer required for small mining projects.
- Replacement of the requirement for an operator to hold a separate registration certificate for activities authorised under each environmental authority, with a general requirement to be registered as a "suitable operator".
- The environmental authority and planning approval (development permit) are no longer linked, so that a change to operational conditions under an environmental authority will not need to be made through an amendment to the development permit.
New assessment timeframes
The reforms introduce an array of new statutory timeframes that apply to the various stages throughout the assessment of an environmental authority application. In most cases, the assessing authority is able to extend the timeframes by a specified period, or longer if agreed with the applicant in writing.
When considering the new statutory timeframes that apply to the various stages of assessment, it is important to be aware that:
- In some instances, failure to meet the statutory timeframes will result in the application lapsing. For example, if the applicant does not respond to a notice advising that the application has not been properly made within the prescribed timeframe, the application will lapse.
- It is also important to be aware that a failure by the Department of Environment & Heritage Protection (DEHP) to issue a decision within the decision making period will result in a "deemed approval" or a "deemed refusal" depending on the type of application made. For example, if a standard application is not decided within the decision timeframes, the authority is taken to have approved the application subject to standard conditions developed by DEHP ("deemed approval"). In contrast, if an application for a resource activity that required a site specific assessment is not decided within the decision timeframes, the authority is taken to have refused the application ("deemed refusal").
How will undecided applications be affected?
Applications that were lodged but yet to be decided on 31 March 2013 will continue to be assessed under the old regime. However, once the approval issues, it will effectively become an "environmental authority" under the new regime.
How will an existing operation be affected?
Existing approvals issued prior to 31 March 2013 will continue to operate and effectively become an "environmental authority" under the new regime.
DEHP has advised that it will not be issuing replacement environmental authorities for existing approvals until the annual return date, unless the operator makes an earlier application to amend or transfer the approval.
DEHP has also advised that if you hold a development permit and registration certificate for an ERA which has been deleted by the amendments to the EP Regulations, the development permit will remain enforceable as it attaches to the title of the land. However, the registration certificate will cease to have effect as at 31 March 2013.
Ongoing reforms: the devil is in the detail
In order to fully implement the move to self assessment for lower risk activities under the EP Act, DEHP is currently in the process of developing Eligibility Criteria and Standard Conditions for activities that are able to be managed by the imposition of standard conditions. Draft Eligibility Criteria and Standard Conditions will be published on the website for public consultation once available.
For the full benefit of the reforms aimed at streamlining and reducing the cost and delay of assessment to be realised, it is important that Eligibility Criteria and Standard Conditions are developed in close consultation with industry. If your business is likely to be affected, we recommend that you take the time to make comment on draft Eligibility Criteria, Standard Conditions and Guidelines for Assessment as they are progressively released over the coming months.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.