Actions Determined as Requiring Approval, Actions Determined as Not Requiring Approval, Assessment Approach and Variation of Conditions of Approval

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to address the protection of the environment, particularly in relation to actions that may have a significant impact on matters of national environmental significance. The Act provides a framework for the assessment and approval of actions that may affect listed threatened species and communities, listed migratory species, and matters of national heritage significance, among other things. The EPBC Act is administered by the Parliament of Australia and aims to provide for the protection of the environment, particularly with respect to biodiversity and heritage, and to manage the impacts of certain actions on the environment. The Act outlines various processes for the approval, assessment, and monitoring of actions that may have a significant impact on the environment. The Act also provides for the establishment of referral mechanisms and assessment processes, including accredited assessment processes under state and territory legislation, to ensure that actions are assessed in a timely and efficient manner. The Department of the Environment and Energy is responsible for administering the Act and ensuring that appropriate assessments and approvals are obtained for actions that may have a significant impact on the environment.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 applies to a broad range of entities, including individuals, companies, and government bodies, across various industries such as residential development, mining, energy generation, and transport. The Act imposes obligations on these entities to protect matters of national environmental significance, which include World Heritage properties, listed threatened species and ecological communities, listed migratory species, the Ramsar-listed wetlands, the Great Barrier Reef, the nuclear actions prohibited by the Commonwealth, and the Commonwealth marine areas. The jurisdictional reach of the Act is national, applying to activities across all states and territories of Australia. Notably, the Act extends its application through subordinate instruments such as regulations and codes of practice, which provide additional detail on how to comply with the Act. Certain actions may be exempt from the need for approval under the Act, depending on their potential environmental impact, and some actions may be subject to an accredited assessment process under state or territory legislation. The Department of the Environment and Energy has committed to ensuring that any missed notifications relating to referral approvals are communicated to the public, despite any delay in notification.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) has key sections that mandate certain actions, such as those that require approval (s.75) and those that do not (s.75). For instance, certain development projects, like residential developments, mining operations, and energy generation projects, may require approval if they are likely to have a significant impact on listed threatened species, communities, or migratory species (s.18, 18A, 20, 20A) or on places of national heritage (s.15B, 15C). Examples include the Ivan Yujnovich residential development in Western Australia (2018/8379) and the Snowy 2.0 transmission connection project in New South Wales (2018/8363). However, some projects, such as the Adelaide Oval Hotel Development in South Australia (2019/8403) and the Denny Avenue Level Crossing Removal in Western Australia (2018/8377), were determined not to require approval. The EPBC Act imposes various obligations on parties or entities it governs. For projects requiring approval, proponents must undertake assessments to determine the potential impacts on matters of national environmental significance and submit these assessments to the Department of the Environment and Energy for review. For example, NSW Electricity Networks Operations Pty Limited must assess the potential impacts of their Snowy 2.0 transmission connection project on listed threatened species and communities, and national heritage places. In cases where the assessment process is already covered under another accredited assessment process, such as the NSW Environmental Planning and Assessment Act 1979 for the Snowy 2.0 project (2018/8363), the Act allows for streamlined assessment. Failure to comply with the EPBC Act can lead to offences, penalties, or civil and criminal consequences. Section 536 of the Act outlines various offences, including actions that cause, threaten, or are likely to cause harm to matters of national environmental significance. The penalties for these offences can be significant. For instance, individuals can face fines of up to AUD 1.1 million or imprisonment for up to five years, or both, for serious or repeated breaches. Corporations can face even higher penalties, potentially reaching AUD 5.5 million for serious or repeated breaches. These penalties serve as a deterrent and underscore the importance of compliance with the Act's requirements.