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

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment, particularly matters of national environmental significance, and to establish a framework for the approval of certain actions that may impact the environment. The EPBC Act is administered by the Australian Government, with the Department of the Environment and Energy responsible for its implementation. The primary policy objective of the Act is to protect and conserve Australia’s environment, including its unique flora and fauna, ecosystems, and natural and cultural heritage, by providing a coordinated approach to environmental protection at the national level. The Act aims to ensure that significant environmental impacts are assessed and managed effectively through a system of referral, assessment, and approval of actions that may harm the environment.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to various projects, activities, species, and places that may have a significant impact on matters of national environmental significance. This legislation covers entities and individuals who propose to undertake actions that are identified as requiring approval under the Act, including those listed under sections such as wetlands of international importance, listed threatened species and communities, listed migratory species, and Commonwealth marine areas. The jurisdictional reach of the EPBC Act is national, extending across the Commonwealth of Australia, and it applies to proposed actions that may impact upon any part of Australia, including its territorial seas. The Act includes provisions for exclusions and exemptions, which may apply under certain circumstances, and it allows for the extension or restriction of its application through subordinate instruments such as regulations and determinations. The Act mandates that certain actions must be referred for approval, while others may be exempt or not require approval based on specific criteria. The Department of the Environment and Energy is responsible for managing the notification process for referrals under the Act, and while they have systems in place to minimise missed notifications, they acknowledge the possibility of such occurrences and commit to notifying the public of any missed notifications, even if beyond the statutory timeframes.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) governs actions that may significantly impact matters of environmental significance. Section 75 of the Act requires that certain actions are assessed to determine if they require approval (sections 75 and 133). For example, the Newcastle Power Station Project by AGL Energy Limited (reference 2019/8425) required approval due to its potential impact on wetlands of international importance (sections 16 and 17B). Similarly, the Eramurra Industrial Salt Project by Leichhardt Industrials Pty Ltd (reference 2019/8448) needed assessment for its impact on listed threatened species and communities (sections 18 and 18A), listed migratory species (sections 20 and 20A), and Commonwealth marine areas (sections 23 and 24A). Conversely, actions such as the Ballarat Line Upgrade by the Department of Economic Development Jobs Transport and Resources (reference 2017/7980) and the South Rockhampton Flood Levee Project by Rockhampton Regional Council (reference 2019/8466) were determined not to require approval. The EPBC Act imposes various obligations and requirements on parties or entities it governs. For instance, proponents must submit detailed proposals and undergo assessment processes to identify and mitigate potential environmental impacts. The Newcastle Power Station Project (reference 2019/8425) was assessed through an accredited process under the NSW Environmental Planning and Assessment Act 1979. Similarly, the Eramurra Industrial Salt Project (reference 2019/8448) was assessed through an accredited process under the WA Environment Protection Act 1986. These assessments ensure that projects comply with environmental standards before approval is granted. The Act also delineates specific offences, penalties, and consequences for non-compliance. For instance, Section 528 outlines various offences related to the unauthorised taking of listed threatened species, with penalties including fines and imprisonment. The Act also provides for civil remedies, such as injunctions or compensation orders, for breaches of its provisions. For example, in the case of the Residential Development project by Reech Pty Ltd (reference 2019/8451), failure to comply with conditions of approval could result in enforcement actions, including fines or legal proceedings. The maximum penalties for different offences vary, with fines up to several thousand dollars and imprisonment terms up to several years, depending on the severity of the breach.