EPBC Act Part 7-9 decisions published, 1/11/2021 to 7/11/2021

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, by regulating activities that have, or might have, a significant impact on the environment. This Act was introduced by the Parliament of Australia to address the need for a comprehensive framework to protect and manage Australia's environment, including its biodiversity, heritage sites, and other significant natural and cultural resources. The policy objective of the Act is to ensure that environmental considerations are integrated into decision-making processes for development projects and activities that may impact the environment. The Act aims to balance environmental protection with economic and social considerations, promoting sustainable development while safeguarding Australia's unique environmental heritage. The EPBC Act has been instrumental in regulating various projects and developments across Australia, requiring thorough environmental assessments and approvals for activities that may affect protected matters. The Department of Agriculture, Water and the Environment is responsible for implementing the Act, ensuring that all relevant stakeholders are informed about the processing of referrals for approval and managing any instances of missed or delayed notifications. The Department has established quality assurance procedures to minimise the risk of missing notifications and to maintain transparency in the environmental approval process. The Act's framework ensures that the history of notifications for each referral remains accessible to the public, facilitating informed decision-making and community engagement.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to a wide array of entities, including individuals, companies, and government bodies, and encompasses diverse industries such as mining, residential development, and energy generation. This Commonwealth Act regulates actions that may impact matters of national environmental significance, including listed threatened species and communities, listed migratory species, and Commonwealth marine areas. It imposes obligations on proponents of designated actions to obtain approval from the relevant federal authority, with certain actions deemed to require approval under specific provisions. Notably, the Act also delineates actions that do not require approval provided they are undertaken in a particular manner. The Act's jurisdiction extends across Australia, including states, territories, and Commonwealth marine areas. Notably, the Act’s application can be extended or restricted through subordinate instruments, although the primary legislative text does not provide explicit details on these secondary measures. Any exclusions, exemptions, or thresholds are specified in the Act itself or in related regulations, which practitioners must consult for comprehensive guidance.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) governs a range of activities that may impact on matters of national environmental significance. The most recent notices published (sections 75 and 87) pertain to various projects that require approval under the Act due to their potential impact on water resources, threatened species, and migratory species, as well as Commonwealth marine areas. For instance, Adani Infrastructure Pty Ltd's North Galilee Water Scheme Water Infrastructure project (reference 2019/8508) requires approval due to its potential impact on water resources related to coal seam gas development and large coal mining development (sections 24D and 24E). Similarly, Lendlease Communities (Shoreline) Pty Limited's The Trails Residential Development (reference 2021/9047) and Powerlink Queensland's Genex Kidston Connection Project (reference 2021/9060) require approval as they may impact listed threatened species and communities (sections 18 and 18A). Under the EPBC Act, proponents of activities that may impact on matters of national environmental significance must submit detailed documentation to the Department of Agriculture, Water and the Environment for assessment. The type of documentation required depends on the potential impact of the activity. For example, preliminary documentation is required for Lendlease Communities (Shoreline) Pty Limited's The Trails Residential Development (reference 2021/9047) and Powerlink Queensland's Genex Kidston Connection Project (reference 2021/9060), while an Environmental Impact Statement is required for Marinus Link Pty Ltd's Marinus Link underground and subsea electricity interconnector cable project (reference 2021/9053). Failure to comply with the EPBC Act may result in civil or criminal penalties, depending on the nature and severity of the breach. For instance, a person who contravenes a direction given under section 484 of the Act may be liable to a penalty of up to $66,000 for an individual and $330,000 for a body corporate. Additionally, a person who contravenes a condition of approval under section 511 of the Act may be liable to a penalty of up to $66,000 for an individual and $330,000 for a body corporate. The Department of Agriculture, Water and the Environment has implemented systems and ongoing quality assurance procedures to minimise the risk of missing a notification within the required timeframe. However, in the event that a missed notification is identified, the Department will notify the public even if the timeframe for notification has lapsed. The Department regrets any inconvenience that may be caused by a missed notification but assures that late notifications have not affected subsequent processing of referrals or assessments and they do not affect decisions made.