Actions Determined as Requiring Approval, Actions Determined as Not Requiring Approval and Assessment Approach

Overview

The Environment Protection and Biodiversity Conservation Act 1999 was enacted by the Parliament of Australia to address the need for comprehensive protection of the nation’s environment, particularly in relation to matters of national environmental significance. This Act provides a framework for the conservation of biodiversity and the protection of the environment from the impacts of proposed actions, whether those actions are directly or indirectly caused by human activities. The objective of the Act is to achieve sustainable development by ensuring that environmental factors are given due consideration in decision-making processes, particularly in relation to actions that may impact on listed threatened species, communities, World Heritage properties, or other matters of national environmental significance. The Department of the Environment and Energy is responsible for administering the Act, including the assessment of proposed actions that may impact on matters of national environmental significance and making decisions on whether these actions require approval. The Act aims to balance the need for economic development and environmental protection by providing a rigorous assessment process that takes into account both the potential environmental impacts of proposed actions and the benefits they may bring. The Act also seeks to promote public participation and transparency in the environmental decision-making process, ensuring that stakeholders have an opportunity to provide input and comment on proposed actions that may impact on the environment.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 applies to various persons, entities, and industries across Australia, focusing on the protection of the environment and biodiversity. It encompasses actions that may significantly impact matters of national environmental significance, including World Heritage properties, national heritage places, wetlands of international significance, listed threatened species and ecological communities, and the marine environment. This Act applies to both Commonwealth and state lands and extends to actions proposed by private entities, government bodies, and individuals within Australia and its external territories. The Act provides for both approval and non-approval of certain actions based on their potential environmental impact, as seen in the actions determined to require or not require approval. While the Act sets out the primary legislative framework, its application can be extended or restricted through subordinate instruments, which provide further detail and guidance on the implementation of the Act’s provisions. Notably, certain exclusions and exemptions may apply, depending on specific circumstances and assessments. The Department of the Environment and Energy is responsible for ensuring compliance and has mechanisms in place to manage instances where notifications may be missed, although such occurrences do not impact the substantive processing or decisions regarding environmental approvals.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) governs various aspects of environmental protection and biodiversity conservation in Australia. For projects requiring approval, Section 75 of the Act specifies the types of actions that must be assessed to determine whether they will have a significant impact on matters of national environmental significance. In the case of Electranet Pty Limited, the proposed energy generation and supply project in South Australia involves a renewable energy interconnector between Robertstown and the NSW border. Similarly, Teewana Farm Pty Ltd's solar farm in Western Australia is another example of an energy generation and supply project that requires approval under Section 75. Another project, a commercial development in New South Wales by Sandran Pty Limited, involves actions that may impact World Heritage and National Heritage places, necessitating assessment under Sections 12, 15A, 15B, and 15C. The EPBC Act imposes obligations on the proponents of projects that require approval, such as Electranet Pty Limited, Teewana Farm Pty Ltd, and Sandran Pty Limited, to provide preliminary documentation and cooperate with the Department of the Environment and Energy to ensure that all potential impacts on the environment and biodiversity are thoroughly assessed. The Act also requires the Department to make decisions on whether to approve or reject the proposed actions, taking into account the potential impacts on matters of national environmental significance. The Department of the Environment and Energy has implemented systems and ongoing quality assurance procedures to ensure that notifications and assessments are conducted within the required timeframes, although there may be occasional instances of missed notifications. In such cases, the Department will endeavour to notify the public even if the timeframe for notification has lapsed. Under the EPBC Act, breaches of the Act or its regulations may result in offences, penalties, or other civil or criminal consequences. For example, if a project proponent fails to provide the required documentation or information, or if they commence an action before receiving approval, they may be liable for civil penalties under Section 528, which can include fines of up to $66,600 for individuals and $333,000 for corporations. Additionally, if an action has a significant impact on a matter of national environmental significance and was not approved, the proponent may be liable for criminal penalties under Section 529, which can include fines of up to $6.6 million for individuals and $33 million for corporations, as well as imprisonment for up to five years. The Act also provides for the recovery of costs incurred by the Department in assessing and enforcing compliance with the Act.