Actions Determined as Requiring Approval, Actions Determined as Not Requiring Approval, Decision on Approval, Variation of Conditions of Approval and Notice of Extension of Time

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted by the Commonwealth Parliament to address the need for comprehensive protection of Australia’s environment, particularly in relation to activities that may have significant impacts on matters of national environmental significance such as listed threatened species, ecosystems, and World Heritage properties. The Act provides a framework for the assessment and approval of actions that could potentially harm these environmental aspects. The EPBC Act aims to integrate environmental considerations into decision-making processes and to provide for the protection and conservation of Australia’s biodiversity and environment. The Department of Agriculture, Water and the Environment is responsible for administering the EPBC Act and ensuring that appropriate assessments are conducted for actions that require approval. The policy objective of the Act is to promote the sustainable use, development, and conservation of the environment and biodiversity by preventing significant harm to matters of national environmental significance. The Act includes provisions for the referral, assessment, and approval of actions that may impact these significant environmental matters, thereby ensuring that potential environmental consequences are considered and managed appropriately.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to actions that are deemed to be controlled actions under the Act, which include activities such as mining, waste management, and land transport. These actions may require approval from the Department of Agriculture, Water and the Environment if they are likely to have a significant impact on matters of national environmental significance such as listed threatened species and communities, world heritage, and national heritage. The EPBC Act applies to individuals, corporations, and government entities undertaking these controlled actions within Australia, including the territories. Certain actions may be exempt from the need for approval if they are undertaken in a particular manner as specified in the Act or in subordinate instruments. The EPBC Act also provides for the ability to vary the conditions of an approval and to extend the time for making a decision on an approval. The Act's application can be further extended or restricted through the use of subordinate instruments. Late notifications of referrals for approval under Chapter 4 of the EPBC Act may occasionally occur due to processing errors or other issues, and while the Department of Agriculture, Water and the Environment has implemented quality assurance procedures to minimise the risk of this happening, it cannot be entirely eliminated. Where a missed notification is identified, the Department will endeavour to notify the public of the referral even if the timeframe for notification has lapsed. It is worth noting that any late notifications do not affect the processing of referrals or assessments or the decisions made under the Act.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (sections 75, 133, 143, 130(4)) sets out the procedures for approving, modifying, or rejecting actions that may have significant environmental impacts. Actions that require approval under the Act are detailed in the Gazette and on the EPBC referrals list (section 75). For instance, the mining activities proposed by Image Resources NL for a mineral sands mine in Western Australia and the waste management project by Sydney Water Corporation for the Upper South Creek Advanced Water Recycling Centre in New South Wales are subject to this scrutiny. Conversely, certain actions, such as residential developments and tourism projects, may not require approval if conducted in a manner specified by the Act (section 75). Once an action is referred for approval, the decision could be an approval with conditions, a rejection, or a variation of the conditions of approval (sections 133, 143). For example, the Isaac Plains East Extension mining project by STANMORE IP COAL PTY LTD was approved with conditions, while the MRA2C Project, South Walker Creek Operations by BHP Billiton Mitsui Coal Pty Ltd had its conditions varied. The Act imposes several obligations on entities and individuals proposing actions that may impact the environment. They must ensure that their proposed activities do not harm listed threatened species and communities, World Heritage properties, or National Heritage places (sections 18, 18A, 12, 15A, 15B, 15C). They must also prepare and submit detailed referral documents, including environmental impact assessments, to the Department of Agriculture, Water and the Environment. Furthermore, if an action is approved, the proponent must adhere to the specified conditions to mitigate any adverse environmental impacts (section 133). Failure to comply with the provisions of the EPBC Act can result in various penalties and legal consequences. The Act does not specify particular penalties for non-compliance, but breaches may lead to civil and criminal actions. Civil penalties may include fines and orders for remediation or restoration of the environment. Criminal penalties can include imprisonment, particularly for actions that result in severe environmental harm. The exact penalties depend on the nature and severity of the breach and are determined by the courts. The EPBC Act also includes provisions for the extension of time for decision-making and notifications. For example, the Vickery Coal Mine Extension Project by Vickery Coal Pty Ltd had its notification period extended to 30 April 2021 (section 130(4)). This extension allows the Department of Agriculture, Water and the Environment additional time to assess the referral thoroughly and ensure that all relevant environmental considerations are addressed. The Act acknowledges that occasional missed notifications may occur but assures the public that such instances do not affect the processing of referrals or the decisions made (section 130(4)).