WHO SHOULD READ THIS
- Local Government.
THINGS YOU NEED TO KNOW
- The Federal Government has introduced a bill that proposes a number of changes to the EPBC Act (focused especially on the operation of bilateral agreements in NSW). The Independent Review of the EPBC Act also remains ongoing and is expected to result in a raft of further changes to the Act.
WHAT YOU NEED TO DO
- Remain up to date on the status of the bill, as well as the final outcome of the Independent Review. We expect that the Independent Review may result in changes to the EPBC Act that will be relevant to the local government sector.
The Federal Government has introduced the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Bill) to streamline the environmental assessment process for development. Separately, the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) remains ongoing – with the Interim Report recently published. This article explores the likely impacts of the Bill and the Independent Review on the Local Government sector.
BACKGROUND TO EPBC ACT
The EPBC Act is Australia's central piece of environmental law at the Federal level. It governs matters including environmental approvals, threatened species conservation, wildlife trade and world and national heritage protection.
The EPBC Act makes it an offence for any person to take an action that is likely to have a significant impact on certain matters protected by the EPBC Act, unless they have the approval of the Minister. Protected matters are:
- matters of ‘national environmental significance'; and
- the environment of Commonwealth land.
In 2015, the NSW Government entered into a bilateral agreement with the Commonwealth under the EPBC Act (Bilateral Agreement). This agreement allows the Commonwealth Minister for the Environment to rely on specified environmental impact assessment processes of the State of NSW in assessing actions under the EPBC Act.
The Bilateral Agreement does not apply in circumstances where the consent authority for a certain action is a local council.
However, the Bilateral Agreement does apply to local councils should they carry out works that constitute either State Significant Development (SSD), State Significant Infrastructure (SSI) or designated development under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). In these circumstances, the State Minister for Planning will be responsible for determination of the development application, not the relevant council. This type of development is a ‘class of action' for the purposes of the Bilateral Agreement.
Local councils should refer activities that involve, for example, clearing native vegetation, changing the natural flow of water, or controlling weeds and other pests to the Federal Minister for the Environment for assessment and approval under the EPBC Act if the activities are likely to have a significant impact on a matter protected under the EPBC Act.
Whether or not these activities are assessed under the Bilateral Agreement, or otherwise under the provisions of the EPBC Act, is dependant on whether they are a ‘class of action' as defined by the agreement.
THE RECENTLY INTRODUCED BILL
The intention of the Bill is to ensure that, where there is a Bilateral Agreement in place for identified actions, those actions do not require further assessment or approval under the EPBC Act (i.e. so as to avoid the duplication of these processes under both the relevant State and Federal regimes). According to the explanatory memorandum, the Bill proposes to:
- facilitate the legally robust devolution of environmental approvals to the states and territories of Australia; and
- make amendments to the EPBC Act in relation to bilateral agreements.
Some of the key changes proposed by the Bill include the following:
- If an action is approved under a Bilateral Agreement, then it does not need to be referred to the Minister, or assessed under Part 8 of the EPBC Act.
- The Commonwealth has discretion to complete assessments where Bilateral Agreements have been suspended or cancelled using the assessment partially completed by the state or territory.
- Part 7 of the EPBC Act (the part that empowers the Minister to determine whether or not an action is a controlled action) does not apply to actions which are covered by a bilateral agreement. Previously, even if the bilateral agreement covered an action, a person could still refer the action to the Minister for a determination under Part 7.
- If an action is specifically excluded from a Bilateral Agreement, then it is deemed to have been referred to the Minister under the EPBC Act.
- Establishing the accreditation of differing state and territory processes (despite the existence of technical differences between the laws and regulatory measures in place from state to state).
- Minor changes to state or territory processes may occur (i.e. in the laws or regulation, for example) so long as the Minister is satisfied there will be not material adverse impact on a protected matter.
- Other bodies (i.e. not just the State government and its agencies) can approve certain actions under accredited arrangements in a bilateral agreement.
Therefore, on the basis that an action is contained in the Bilateral Agreement, these proposed changes to the EPBC Act would remove the opportunity for a person to refer this action to the Federal Minister for assessment or approval.
Perhaps of most relevance to local councils (should these changes be implemented), are the changes to section 46(1) of the EPBC Act (the final dot point in the list above). In its explanatory memorandum, the Government explains that the changes would allow for a broader range of entities to approve actions under an accredited management arrangement or authorisation process.
Currently, section 46(1) of the EPBC Act requires a Bilateral Agreement to declare a class of actions wholly or partly by reference to the fact these actions have been approved by the ‘State' or an ‘agency of the State'. Once amended, section 46(1) will be silent on this aspect. The explanatory note explains: ‘This amendment will ensure that the focus of the approval bilateral agreement and the management arrangement or accreditation process is instead on whether the arrangement or process satisfies the criteria for accreditation, not the identity of the decision maker'. There may therefore be less discrepancy about whether local councils in each of the states and territories can make decisions for the purpose of section 46.
Overall, we note that these changes are a rehash of proposed amendments to the EPBC Act that were unsuccessful in 2014. We are also informed that the Bill is not supported by the Greens and that Labour will not consider the Bill until the National Environmental Standards (NES) have been introduced (as recommended in the Interim Report). This Bill does not propose to introduce any NES at this stage.
THE INTERIM REPORT
Separately, Professor Graeme Samuel is undertaking an independent review of the EPBC Act. He will deliver his final recommendations to the NSW Government in October 2020. Professor Samuel released the Interim Report in June 2020. The matters covered in the Interim Report include:
- the general opinion that the EPBC Act is currently ineffective (on the basis that environmental outcomes are assessed on a ‘project by project' basis rather than from a long term conservation perspective);
- a recommendation that legally enforceable NES should be made to set the foundations for effective regulation; and
- the observation that ‘efforts made to harmonise and streamline with the states and territories have not gone far enough'.
We expect that the final recommendations will suggest a number of substantial reforms to the EPBC Act – which, if implemented – could also have an impact on the assessment and approval of development within local council areas, as well as development carried out by local councils. McCullough Robertson will report on the outcome of the final recommendations at the time these become available.
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.