Actions Determined as Requiring Approval, Actions Determined as not Requiring Approval, Assessment Approach, Decision on Approval, Outcome of Request for Reconsideration of Decision, Variation of Conditions of Approval

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to address the need for a comprehensive national framework to protect and manage Australia's environment, particularly in relation to threatened species and ecological communities, World Heritage properties, National Heritage places, and Commonwealth land. This legislation is administered by the Parliament of Australia and aims to provide a coordinated approach to environmental protection and biodiversity conservation, balancing economic and social considerations. The Act establishes mechanisms for assessing the potential environmental impacts of proposed activities that may affect matters of national environmental significance, ensuring that development decisions consider their environmental implications. The Department of Sustainability, Environment, Water, Population and Communities plays a crucial role in managing the EPBC Act, including the notification and assessment of proposed actions that may impact the environment. The department has instituted quality assurance measures to minimize the risk of missed or delayed notifications, ensuring transparency and public access to information about environmental assessments and decisions. Despite occasional delays in notification, these have not affected the substantive processing of referrals or the outcomes of environmental assessments. The department remains committed to upholding the integrity of the EPBC Act by ensuring that all notifications are eventually communicated to the public, even if they occur after the statutory timeframe.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to actions that may significantly impact matters of national environmental significance. This includes individuals, corporations, and other entities engaging in activities that could affect listed threatened species and communities, World Heritage properties, National Heritage places, listed migratory species, the marine environment, the Great Barrier Reef Marine Park, the Commonwealth marine areas, and Commonwealth land. The EPBC Act has a broad jurisdictional reach, operating at the national level and encompassing actions across all states and territories within Australia. While the Act applies extensively, certain actions are excluded or exempt, such as those involving minor impacts on protected matters or activities already regulated under state or territory laws. The application and scope of the Act can be further refined or expanded through subordinate instruments, which may include regulations or guidelines that specify particular conditions or exemptions for certain actions or industries.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) outlines a range of actions that require approval under specific sections. Section 75(1) of the Act identifies actions that are required to obtain approval, which include activities that are likely to have a significant impact on matters of national environmental significance, such as World Heritage properties, listed threatened species and ecological communities, and Commonwealth land. For example, the duplication of the Princes Highway from Winchelsea to Colac, Victoria, is listed under section 18 as an action requiring approval because it involves the potential impact on listed threatened species and communities (EPBC Act s.18). Similarly, the development of the Ayers Rock Resort Golf Course in the Northern Territory is listed under section 12 and 15A as an action requiring approval due to its potential impact on World Heritage properties (EPBC Act s.12, 15A). Under the EPBC Act, certain obligations and requirements are imposed on parties or entities conducting activities that necessitate approval. These obligations include preparing and submitting relevant documentation, such as preliminary documentation for the Princes Highway Duplication (EPBC Act s.87) and a Public Environment Report for the Ayers Rock Resort Golf Course Development (EPBC Act s.87). Additionally, the Act requires that these entities comply with any conditions attached to the approval, ensuring that their activities do not adversely affect the protected matters. For instance, Hamersley Iron Pty Ltd was granted approval for the Yandicoogina Junction South West and Oxbow Iron Ore Project, subject to specific conditions aimed at mitigating potential environmental impacts (EPBC Act s.133). The EPBC Act also includes provisions for offences, penalties, and consequences for breaches of the Act. Non-compliance with the Act can result in both civil and criminal penalties. Civil penalties can include fines of up to $666,000 for individuals and $3.3 million for corporations for each offence (EPBC Act s.137). Criminal penalties can include fines of up to $666,000 for individuals and $3.3 million for corporations, along with potential imprisonment for up to five years for each offence (EPBC Act s.137). Furthermore, the Act allows for the imposition of additional penalties for repeat offences and for causing serious environmental harm. For example, the approval of Bedrock Landscape Supplies (QLD) Pty Ltd’s Sand Extraction and Associated Screening project came with conditions to ensure compliance and avoid potential penalties (EPBC Act s.133). The EPBC Act also provides mechanisms for reconsideration of decisions and variations of approval conditions. Section 78C allows for the reconsideration of a decision not to approve an action, which can result in a change in the decision, such as the decision for Canberra Investment Corporation Limited’s Fyshwick East Industrial Estate Block 2223, which was changed from a "no controlled action" to a new manner of conducting the activity (EPBC Act s.78C). Section 143 enables the variation of conditions of approval, as seen in the case of Fairway Developments (WA) Pty Ltd’s Old Broadwater Farm Estate Subdivision - Stage 3, where the conditions were varied to address specific environmental concerns (EPBC Act s.143). These provisions ensure that the Act remains dynamic and responsive to new information and changing circumstances.