EPBC Act Part 7-9 decisions published, 8/11/2021 to 14/11/2021

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted by the Australian Parliament to provide for the protection of the environment, particularly matters of national environmental significance, through a framework that includes the assessment of activities that may impact on these areas. The EPBC Act aims to ensure that development and other activities are balanced with the need to protect and conserve the environment. This Act addresses the gap in environmental protection by providing a national framework for the assessment and approval of activities that may impact on matters of national environmental significance, including listed threatened species and ecological communities. The Department of Agriculture, Water and the Environment administers the EPBC Act and is responsible for ensuring that notifications and approvals are managed effectively. The department has acknowledged that, occasionally, notifications about referrals for approval under the EPBC Act may be missed or not meet the required timeframes, but has assured the public that systems and quality assurance procedures are in place to minimise such occurrences. The policy objective of the EPBC Act is to provide a comprehensive and integrated approach to environmental protection, ensuring that activities are assessed for their potential environmental impacts and managed appropriately.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to various entities, industries, and activities that may impact matters of national environmental significance, including listed threatened species and communities. The Act extends its jurisdiction across the Commonwealth of Australia, affecting both public and private sector entities involved in activities such as mining, residential development, and energy generation and supply. Notably, the EPBC Act regulates actions that require approval, and these are subject to stringent assessment criteria, as evidenced by the listed referrals for approval and decisions on actions that require or do not require approval. For instance, mining operations like those proposed by Ransberg Pty Ltd in Western Australia and residential developments by STOCKLAND LAND LEASE MANAGEMENT PTY LIMITED in Queensland are subject to detailed scrutiny under the Act. Additionally, the Act also encompasses the modification of existing projects and the extension of time for certain approvals, as seen in the cases of Wind Prospect CWP Pty Ltd and AGL Energy Limited. Exclusions and exemptions from the Act’s purview are minimal and typically specified within the Act or through subordinate instruments. The Department of Agriculture, Water and the Environment ensures that the implementation of the EPBC Act is thorough, despite occasional delays in notification, which are rectified through quality assurance procedures.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) governs various environmental protection measures, including the approval and regulation of certain activities that may impact listed threatened species and communities. Section 75 of the Act outlines actions that require approval, such as mining operations and residential developments that may affect listed threatened species and communities. For instance, in the case of Ransberg Pty Ltd's mining operation at Byford Whitby Quarry in Western Australia, approval is required due to potential impacts on listed threatened species and communities (EPBC Act s.75). Similarly, Stockland Land Lease Management Pty Limited's residential development in Queensland must also undergo approval for the same reasons (EPBC Act s.75). The Act imposes specific obligations on entities proposing actions that may affect listed threatened species and communities. These obligations include providing preliminary documentation to the Department of Agriculture, Water and the Environment, which assesses the potential impacts and decides whether approval is necessary (EPBC Act s.87). For example, Ransberg Pty Ltd and Stockland Land Lease Management Pty Limited must submit preliminary documentation to enable the Department to assess the impacts of their respective projects on listed threatened species and communities (EPBC Act s.87). Breaches of the EPBC Act can result in both civil and criminal consequences. Under the Act, unauthorised actions that may harm listed threatened species and communities can lead to substantial penalties. The maximum penalty for an individual is generally a fine of up to AUD 5.5 million or imprisonment for up to five years, or both (EPBC Act s.133). Additionally, corporate entities can face fines of up to AUD 27.5 million (EPBC Act s.133). The Act also allows for the variation of conditions of approval for previously authorised actions if new information emerges or if the conditions are no longer adequate to protect the threatened species and communities (EPBC Act s.143). Failure to comply with these conditions can result in further penalties. The Act also provides for the extension of time for certain actions, such as the EnergyConnect NSW - Western Section project, which was approved with conditions (EPBC Act s.130(4)). In some cases, the Department may extend the timeframe for compliance with approval conditions or other requirements. For instance, the Newcastle Power Station Project in New South Wales was granted an extension until 26 November 2021 (EPBC Act s.130(4)). While the Department strives to meet notification timeframes, occasional missed notifications may occur, and the Department has implemented quality assurance procedures to address these instances.