Key Points:
The proposed bilateral will allow the Commonwealth to rely on additional Victorian assessment processes to those currently accredited under the EPBC Act, meaning separate assessment under the EPBC Act will not be needed for a larger number of projects.
A draft bilateral agreement between the Commonwealth and Victoria on environmental assessments under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) was released on 5 September 2014, and is open for public comment until 3 October 2014.
Victoria is the last of the States and Territories to release its draft assessment bilateral for comment. The draft comes as part of the inter-governmental commitment to delivering a One-Stop Shop for environmental approvals. Once in place, the new bilateral will revoke Victoria's 2009 assessment bilateral agreement with the Commonwealth, currently in operation.
Who needs to know?
The changes will affect proponents of both public and private sector projects in Victoria which are "controlled actions" under the EPBC Act, and which are capable of assessment by one or more of a broad range of Victorian assessment processes.
The proposed bilateral will allow the Commonwealth to rely on additional Victorian assessment processes to those currently accredited under the EPBC Act. This means that controlled actions assessed by any of those accredited processes will not require separate assessment at the Commonwealth level under Part 8 of the EPBC Act or project specific accreditation of the assessment process. However, projects assessed under an accredited assessment process will still require Commonwealth approval – at least until an approvals bilateral is entered into.
What are the key changes?
The proposed changes are designed to increase the number of Victorian projects which are eligible for single assessment. This is to be achieved through the accreditation of five additional Victorian assessment processes and modification of existing accredited processes.
New assessment processes being accredited
The five additional assessment processes proposed to be accredited under the new assessment bilateral are:
- Assessment by comprehensive impact statement (CIS) under the Major Transport Project Facilitation Act 2009 (Vic);
- Assessment under the Environment Effects Act 1978 (Vic) where the Victorian Minister decides that an Environment Effects Statement is not required on certain conditions;
- Assessment through an assessment documentation process in parallel with a permit application process under Part 4 of the Planning and Environment Act 1978 (Vic) (P&E Act);
- Assessment as part of an application for a licence for works under section 67 of the Water Act 1989 (Vic); and
- Assessment under the permit application process in the Heritage Act 1995 (Vic).
Specific requirements attach to each assessment process, which will need to be met to avoid further assessment under Part 8 of the EPBC Act. Some of the implications of these requirements are discussed below.
Accredited assessment processes retained
The following existing assessment processes under the 2009 agreement will remain accredited:
- Assessment by an Environmental Effects Statement under the Environment Effects Act;
- Assessment by an advisory committee appointed under section 151 of the P&E Act;
- Assessment through the permit application process in Part 4 of the P&E Act, where the Victorian Minister is the responsible authority; and
- Assessment through the works approval process under section 19B of the Environment Protection Act 1970 (Vic); and
- Assessment as part of an application for approval under sections 36 or 51 of the Water Act.
Under the proposed bilateral, Victoria and the Commonwealth have agreed to work together to ensure that any Commonwealth conditions attached to environmental approvals are strictly limited to matters not addressed by Victorian assessment and approvals.
In addition, the Commonwealth and Victoria have agreed to use best endeavours to align the administration of referral processes, including to streamline information requirements and provide timely advice to proponents to achieve efficient decision-making in respect of which accredited assessment process will apply to their projects.
What are the potential implications for project proponents?
Some of the features of the new assessment processes are:
- CIS Assessment under the Major Transport Project Facilitation Act: For the CIS assessment process, project proponents should note the following key features, which may involve delays in project delivery timeframes.
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- The Minister must seek public comment on and publish draft scoping directions for a period of 15 business days in accordance with particular requirements.
- The proponent must prepare a revised CIS addressing submissions referred to the proponent, and publically exhibit and invite submissions on the revised CIS within a period of no less than 10 business days.
- The Assessment Committee must consider the CIS, any revised CIS, public submissions and proponent information addressing, to the greatest extent practicable, public submissions on relevant impacts.
- The Minister's Assessment Report must address the Assessment Committee's findings, the CIS, any revised CIS, the proponent's response to submissions, and any other information relating to relevant impacts.
These requirements, as compared to other CIS assessment processes, have the potential to create timing pressures for major transport project proponents in respect of declared projects under the Major Transport Project Facilitation Act requiring complex assessment.
- Assessment under the Environment Effects Act, where no EES is required: Where the Victorian Minister decides that no EES is required on condition that an environmental report is prepared addressing relevant EPBC Act matters, no further assessment under the EPBC Act may be necessary. Under this assessment process, the report must be prepared to the satisfaction of the Victorian Minister and must be open for public comment for at least 14 days.
- Parallel Assessment Documentation and Planning Permit Process: For this assessment process, proponents will need to provide particular assessment documentation in relation to EPBC Act matters, as well as satisfy the planning permit application process under Part 4 of the P&E Act. This process applies where the responsible authority is not the Victorian Minister. However modifications to the existing accredited assessment process under Part 4 of the P&E Act will apply where the Victorian Minister is the responsible authority.
- Water Act Assessment: The proposed bilateral expands the type of applications for approval under the Water Act 1989 (Vic) to include applications for licences to construct works under section 67. For assessments under the Water Act, the proponent must include supporting documentation in relation to EPBC Act matters in its application for approval, to be released for public comment for 14 days.
- Heritage Act Assessment: For assessments under the Heritage Act 1995 (Vic), the proponent's application for a heritage permit must provide supporting documentation in relation to EPBC Act matters. The assessment report must be prepared by the Executive Director under the Heritage Act.
Where to from here?
The previous 2009 bilateral will be revoked once the new bilateral commences. The draft agreement provides that the commencement date will occur 65 days after the parties have signed.
The draft agreement is open for public comment until 5pm on Friday, 3 October 2014.
The Commonwealth and Victoria also intend to pursue a comprehensive approvals bilateral agreement to accredit Victorian approvals processes under the EPBC Act. The draft approvals bilateral is expected for release by the end of 2014.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.
