There are a number of relatively easy administrative fixes that can make a big difference to project delivery and timeframes.
The recommendations of The House of Representatives' Standing Committee on the Environment's report, released late February, on the need for streamlining of environmental regulation, green tape and one-stop shops will come as no surprise to many observers, who have been hearing similar things from various reports and government policies that have been circulating for over a decade.
While the streamlining of environmental regulation nationally proceeds slowly, there are some low-hanging fruit that can be picked to improve the existing system. Given the obvious complexity of the streamlining task, these should be dealt with as a priority by governments across Australia now to ease the burdens on developers and communities alike of a cumbersome system. Likewise, project proponents should be looking for opportunities in developing their approvals strategy and assessment documentation to support the approvals process where possible.
The one-stop shop: the current model
The model for the one-stop shop that is consistently put forward at a Federal level is that each of the States and Territories will enter into an "approvals bilateral" with the Commonwealth Government. That "approvals bilateral" accredits certain approvals processes of the State or Territory, and replaces the need to obtain a separate Federal approval under the Environment Protection and Biodiversity Conservation Act. An approvals bilateral makes States and Territories responsible for deciding approvals, imposing conditions, and monitoring and enforcing approvals.
Each State and Territory has now entered into a memorandum of understanding with the Commonwealth Government to enter into an approvals bilateral, and draft approvals bilaterals have been or currently are progressing through public consultation. Despite this apparent progress however, no approvals bilaterals have yet been finalised.
Why can't we get a one-stop shop?
There are two main impediments: philosophical and practical.
The actual one-stop shop concept does raise concerns for some, including:
- trusting one level of government, without appropriate checks and balances from another level of government;
- impacts on third party or public interest review and objection rights;
- ensuring that the highest environmental standards are followed; and
- the difficulty in achieving a single system while State and Territory environmental protection laws are not harmonised.
Practically, amendments to the Environment Protection and Biodiversity Conservation Act are needed to facilitate the approvals bilaterals – and as these amendments have stalled, so has the progress of the approvals bilaterals.
In addition, there must be co-ordination and ceding of powers between two, and sometimes three, levels of Government, and a rethinking of resources to monitor and defend decisions that are challenged, and manage compliance and enforcement.
Where are the delays in project approvals?
Criticisms of the current system of approvals include inconsistency, complexity, duplication and administrative inefficiency.
With the assessment bilaterals in place, and the usual delay between "EIS approval" and ancillary State or Territory approvals, the timing of the EPBC Act approval in itself (being about six weeks after the key State approval) rarely holds up project delivery. The key areas where project delays are experienced include:
- requirements to produce unnecessary information, including spending time responding to terms of reference or information requests that do not align with the key environmental risks of a project;
- delays in decision-making (which may be caused by inadequate information with an application or may be caused by inconsistent, unclear or late information requirements);
- unnecessarily complex conditions, or conditions that defer commencement of a project until certain pre-conditions or additional studies are completed;
- inconsistency and duplication between different conditions, including in relation to offsets, monitoring and reporting;
- lack of flexibility in approvals, including a failure to accommodate minor project changes through conditions;
- regulatory instability through changes in law or listings during the course of project approvals processes;
- duplication in approvals requirements between Federal and State processes (for example the water trigger under or koala protection);
- judicial processes, where approvals for a single project may be appealed or reviewed in a number of State and Federal courts and tribunals.
So what can be done now to streamline an approvals process and reduce delays?
While the one-stop shop is being sorted out, there are a number of relatively easy administrative fixes that can streamline an approvals process, including:
- ensuring early Commonwealth involvement in State processes;
- continuous communication between different levels of government, with consistent project managers;
- alignment of information requirements and conditions between different regulators to ensure ease of administration for both regulators and project proponents;
- using existing processes to minimise regulatory duplication and "front load" approvals, such as strategic assessments.
Other actions that do not require statutory amendments include:
- providing clear guidance to applicants through pre-lodgement meetings and non-regulatory publications;
- ensuring terms of reference are tailored to project risks, and avoid detailed studies on topics that are low risk or irrelevant for the project;
- ensuring conditions align with project outcomes, respond to project risks, require monitoring and reporting that is proportionate to project risk and accommodates a degree of flexibility in project delivery and design;
- for applicants - having a clear approvals strategy and complete application documents that respond to mandatory application requirements and the decision-maker's assessment criteria. Where a bilateral assessment process is used, the application should address both sets of decision making criteria; and
- proactive and upfront involvement by assessing agencies (Commonwealth and State) in identifying whether assessment documentation is adequate, so that the risk of "stop the clock" information requests is minimised. This is already provided for in the current assessment bilateral agreements.
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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 bulletin. Persons listed may not be admitted in all states and territories.