EPBC Act Part 7-9 decisions published, 20/09/2021 to 26/09/2021

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted by the Parliament of Australia to provide for the protection of the environment, particularly matters of national environmental significance, by controlling actions that have, or are likely to have, a significant impact on the environment. The EPBC Act plays a crucial role in ensuring that the environmental impacts of proposed developments and activities are carefully considered, and appropriate measures are taken to mitigate any adverse effects. The Department of Agriculture, Water and the Environment is responsible for administering the Act, and its policy objective is to protect and conserve Australia's biodiversity and environment while allowing for sustainable development. The information provided in the gazette relates to recent decisions made under the EPBC Act, including approvals, assessment approaches, variations of conditions, and extensions of time for referral notifications.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is a Commonwealth statute that applies to actions that may have a significant impact on matters of national environmental significance. The Act applies to both individuals and entities engaged in activities that could potentially affect the environment, including industrial projects, residential developments, agricultural expansions, and energy generation projects. It covers a broad range of conduct and transactions that could impact listed threatened species and communities, wetlands of international importance, listed migratory species, and Commonwealth marine areas. Geographically, the EPBC Act has a national reach, applying across all states and territories within Australia, and its jurisdiction extends to offshore areas within Australia’s territorial limits. The Act may also apply extraterritorially to actions by Australian citizens or entities outside Australia that affect matters of national environmental significance. Certain actions may be exempt from the Act under specific conditions or thresholds, such as minor actions that are unlikely to have a significant environmental impact. The Act allows for the application of additional conditions or restrictions through subordinate instruments, further extending or restricting its application as needed.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) governs the protection of the environment, particularly in relation to actions that may have a significant impact on matters of national environmental significance. Sections 75 and 87 of the EPBC Act pertain to decisions on whether certain actions require approval and the approach for assessing those actions, respectively. Under section 75, the Act determines whether a proposed action requires approval based on its potential impact on matters of national environmental significance. Section 87 outlines the assessment approach, which may include the preparation of preliminary documentation or an Environmental Impact Statement. For example, Townsville City Project Pty Ltd's residential development in Bacchus Marsh, Victoria (reference 2021/9014), required preliminary documentation (EPBC Act s.87), while SA Offshore Windfarm Pty Ltd's renewable energy project off the coast of Kingston SE, South Australia (reference 2021/9028), necessitated an Environmental Impact Statement (EPBC Act s.87). The Act imposes specific obligations and requirements on parties or entities it governs. For instance, developers must provide comprehensive documentation that assesses the potential environmental impact of their proposed actions on matters of national environmental significance. This includes identifying any listed threatened species, communities, or migratory species that may be affected, as well as evaluating the impact on wetlands of international importance and Commonwealth marine areas. The entities must also engage in consultation processes with relevant stakeholders, including Indigenous communities and government agencies, to ensure that all potential environmental concerns are addressed. Furthermore, the Act requires that these assessments be conducted in accordance with the guidelines and timeframes set out in the EPBC Act, ensuring a thorough and transparent evaluation process. Breaches of the EPBC Act can result in various civil and criminal consequences. For instance, if an entity fails to comply with the assessment requirements or provides misleading or inaccurate information, it may face penalties under section 535 of the Act. The maximum penalty for individuals can be up to $222,222 or imprisonment for up to five years, or both. For corporations, the maximum penalty can be up to $1,111,110 or multiples thereof depending on the severity of the breach. Additionally, the Act provides for the possibility of injunctions and other remedies to prevent or redress environmental harm. The enforcement of these provisions is overseen by the Department of Agriculture, Water and the Environment, which has the authority to take legal action against non-compliant entities. The EPBC Act also includes provisions for the variation of conditions of approval and the extension of time for certain actions. Section 143 allows for the variation of the conditions attached to an approval, ensuring that the environmental protections remain effective in light of any changes in circumstances or new information. For instance, the Yorkeys Knob Boating Infrastructure Project managed by the Queensland Department of Transport and Main Roads had its conditions of approval varied on 20 September 2021 (reference 2020/8692). Similarly, section 130(4) permits the extension of time for actions that require approval, such as the Newcastle Power Station Project managed by AGL Energy Limited, which was extended to 12 November 2021 (reference 2019/8425). These provisions ensure that the regulatory framework can adapt to new information or changing conditions while maintaining its core environmental protections.