If the NSW process stays on course, we should expect an approval bilateral agreement for NSW by November 2014, but some matters will be excluded.
The Federal Government's "one stop shop" is a step closer in NSW, with the signing on Monday 4 November of a Memorandum of Understanding (MoU) between the Federal and NSW Governments.
NSW is the second State to sign an MoU with the Federal Government, following the signing last month of an MoU with the Queensland Government.
A central element of the newly elected Federal Government's environment policy is the establishment of a "one-stop shop" for environmental approvals, bringing together Federal and State project approval requirements.
Essentially, this means the making of an approval bilateral agreement between the Federal Government and each State and Territory Government, under the Federal Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), which would accredit a State or Territory Government approval for a project and therefore remove the need for an approval under the EPBC Act for that project.
Approval bilateral agreements
One of the key concerns about the EPBC Act since it commenced in 2000 has been the duplication of assessment and approval requirements at the Federal and State levels. The EPBC Act itself recognises this, by providing for bilateral agreements under which:
- a State assessment process is accredited, so that the Federal Government can determine an application for EPBC Act approval on the basis of that process (assessment bilateral agreements); and
- a State assessment and approval process is accredited, so that a State approval for a project removes the need for an EPBC Act approval for that project (approval bilateral agreements).
So far, each State and Territory has had an assessment bilateral agreement (although the NSW agreement has expired), and there has been only one approval bilateral agreement – for the Sydney Opera House –which also has expired.
Setting up the one-stop shop
In a media statement on 16 October, Environment Minister Greg Hunt said that the "one-stop shop" will be achieved through a three stage process:
1. signing an MoU with each of the willing States and Territories on key principles and confirming their co-operation to achieve a single assessment and approval process;
2. updating existing assessment bilateral agreements with States and Territories which allow them to undertake the assessment of projects under the EPBC Act; and
3. within 12 months, signing new approval bilateral agreements with willing States and Territories to allow them to grant approvals under the EPBC Act.
If the NSW process stays on course, we should expect an approval bilateral agreement for NSW agreed in principle by April 2014 and concluded by 18 September 2014.
Next steps for the one-stop shop for environmental assessments
The NSW MoU has a number of similarities to the Queensland MoU which was signed last month, including in relation to timing of the process to set up the one-stop shop.
The Federal and NSW Governments propose to re-establish the NSW assessment bilateral agreement within the next six months, with a stated goal of covering 100% of projects in NSW which need EPBC Act approval. This could accredit the major project assessment regimes in the current NSW planning laws (which were introduced after the most recent NSW assessment bilateral agreement was made), or it could accredit regimes in new NSW planning laws if the Planning Bill which is currently before the NSW Parliament is enacted soon.
As part of the streamlining of assessment processes before an approval bilateral agreement is made, we expect the Federal and NSW Governments will work towards clarifying assessment requirements where EPBC Act approvals are required, and reducing the need for EPBC Act approval conditions covering issues which State approvals cover (which the EPBC Act itself already contemplates).
The MoU also commits the Federal and NSW Governments:
- to finalise two strategic assessments under the EPBC Act – a biodiversity plan for coal mining in the Upper Hunter Valley (which is currently underway) and a program for the protection of matters of national environmental significance in the Lower Hunter (for which terms of reference have not yet been released); and
- to work towards the development of a priority list for existing and future strategic assessments in NSW by December 2013.
It appears that the Federal Government intends the proposed approval bilateral agreement to apply to a broad range of approval regimes. Key issues to consider in delivering on this intention include:
- the EPBC Act water trigger: The EPBC Act currently prevents an approval bilateral agreement from applying to the new water trigger for coal seam gas (CSG) and large coal mining projects, which requires EPBC Act approval for projects which are likely to have a significant impact on a water resource. If the water trigger is to be included in the one-stop shop approval process, the EPBC Act will need amendment.
- requirements for State laws: An approval bilateral agreement can be made only if the Federal Environment Minister is satisfied that criteria specified in the EPBC Act are met, including criteria for ongoing protection of the matters of national environmental significance which the EPBC Act identifies.
For example, the Minister may enter into a bilateral agreement containing a provision relating to a listed threatened species or ecological community only if (among other things):
- the Minister is satisfied the provision is not inconsistent with Australia's obligations under applicable international conventions; and
- the agreement will promote the survival and/or enhance the conservation status of each species or community to which the provision relates.
A detailed review by the Federal and NSW Governments, and possibly amendments to some State legislation (to ensure relevant decision-making criteria and outcomes will align with the EPBC Act) may be necessary to meet these requirements.
What about CSG?
Given the NSW Government's stated desire to reduce regulatory "green tape" in project assessments and approvals, some stakeholders have queried whether the signing of the MoU might signal a change in approach in NSW laws for CSG projects. NSW has some of the most stringent controls on CSG activities in Australia, including the recent establishment of exclusion zones in planning laws. However, it has been reported that the NSW Government is not proposing to change those controls.
This, combined with the exclusion of the water trigger in the EPBC Act from approval bilateral agreements (as noted above), means that most of the current controls on CSG projects will remain for the time being.
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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.