EPBC Act Part 7-9 decisions published, 11/09/2023 to 17/09/2023

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted by the Australian Parliament to address the protection of the environment, particularly in relation to matters of national environmental significance. It provides a framework for the assessment and approval of actions that may have a significant impact on the environment, including threatened species, ecological communities, and heritage places. The Act aims to ensure that environmental considerations are integrated into decision-making processes, particularly those involving development projects. The EPBC Act is administered by the Department of Climate Change, Energy, the Environment and Water, which is responsible for enforcing the Act and ensuring compliance with its provisions. The Act seeks to protect and conserve Australia's unique biodiversity and environment while balancing economic development and growth.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to a wide range of entities and activities that may impact on matters of national environmental significance, as defined in the Act. This includes actions that may affect listed threatened species, communities, or ecological communities, as well as actions that may cause significant impact on matters of national environmental significance such as the World Heritage properties, wetlands of international significance, and the water resources of the Commonwealth. The Act applies to individuals, companies, and other entities, and to actions occurring within Australia and its territorial sea. The Act also extends its reach through subordinate instruments, which may provide further detail on the types of actions that require approval under the Act. While the Act applies broadly, there are certain exclusions and exemptions, such as actions that are already regulated under other Commonwealth, state, or territory legislation. Additionally, certain actions may be subject to thresholds that determine whether they require approval under the Act.

Key Provisions

The main operative sections of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) relevant to the notifications include sections 75 and 87 (sections 75 and 87). Section 75 pertains to actions that require approval under the Act, while section 87 outlines the assessment approach for determining whether an action requires approval. In the Gazette, the action requiring approval under section 75 is SEALARK PTY LIMITED's residential development at West Culburra, New South Wales (reference 2023/09524). This development involves the subdivision of three lots (Lot 1 DP 1279350, Lot 2 DP 1279350, and Lot 3 DP1279350) at Culburra Beach and Wollumboola. The assessment approach for this development, as per section 87, involved preliminary documentation (reference 2023/09524). The other actions mentioned do not require approval under section 75 of the EPBC Act. The Act imposes various obligations and requirements on parties or entities it governs. For instance, any party proposing an action that may have a significant impact on matters of national environmental significance must submit an application to the Department of Climate Change, Energy, the Environment and Water for approval. This includes providing preliminary documentation and other relevant information to facilitate the assessment process. The Department, in turn, is required to assess the potential environmental impacts of the proposed action and determine whether it requires approval under the Act. Additionally, the Department must notify the public of the proposed action and provide an opportunity for public comment. Failure to comply with these obligations may result in penalties or other consequences. The EPBC Act also outlines various offences, penalties, and civil/criminal consequences for breach. For instance, any person who carries out a prohibited action under the Act without approval may be liable for a penalty of up to $750,000 for a corporation or $150,000 for an individual (section 528). Similarly, any person who provides false or misleading information in an application for approval under the Act may be liable for a penalty of up to $660,000 for a corporation or $132,000 for an individual (section 528A). In addition to these penalties, any person who intentionally or recklessly causes harm to a listed threatened species or community may be liable for a penalty of up to $660,000 for a corporation or $132,000 for an individual (section 474). These penalties are in addition to any civil or criminal consequences that may arise from breach of the Act. It is important to note that the Department of Climate Change, Energy, the Environment and Water has implemented systems and ongoing quality assurance procedures to minimise the risk of missed notifications within the required timeframe. However, where a missed notification is identified, the practice is to notify the public of the missed notification, even though the timeframe for notification has lapsed. This ensures that the history of notifications for each referral is available to the public. The Department regrets any inconvenience that may be caused by a missed notification and assures that late notifications have not affected subsequent processing of referrals or assessments and do not affect decisions made.