The Environmental Protection Amendment Bill 2020 (WA) (Bill) introduced to Parliament earlier this year has now passed through both Houses of Parliament and was given Royal Assent on 19 November 2020 – now the Environmental Protection Amendment Act (No 40 of 2020) (EP Amendment Act).
In his second reading speech, the Minister for the Environment (Minister), the Hon Stephen Dawson stated that the amendments will be delivering modern environmental legislation, and will create the ability for more efficient, risk-based and flexible assessment and approval processes. The Minister also stated that the amendments will expand enforcement powers, broaden the range of persons who will be held criminally responsible for offences under the Environmental Protection Act 1986 (WA) (EP Act), and provide for cost recovery provisions for assessment processes, monitoring programs and other procedures under the EP Act.
The operative provisions of the EP Amendment Act are yet to be proclaimed and will be likely to come into effect when supporting Regulations are ready to be tabled in Parliament.
Some of the significant impacts of the new provisions on owners and developers are addressed below:
The amendments include a change to the procedures for the declaration of an ‘Environmentally Sensitive Area’ (ESA). Where the existing provisions empower the Minister to issue notices declaring an ESA after seeking and considering comments from any public authority or person who has an interest in the subject matter, the new provisions enable ESAs to be declared by regulations under the EP Act.
The effect of an ESA is to negate any possible exemption to the requirement for a clearing permit (such exemptions are set out in Schedule 6 of the EP Act and the relevant Regulations). The existence of a declared ESA would accordingly appear to preclude the availability of new provisions (section 51DA) intended to enable a referral of a proposed clearing to the CEO to determine whether a clearing permit is required or not. This new referral procedure is intended to relieve the need for going through a clearing permit application process in respect of ‘trivial’ clearing (where an exemption would not otherwise apply).
The new referral provisions are intended to provide procedures that are more efficient, targeted, flexible and transparent while ensuring protection of native vegetation with important environmental values. If such new referral procedures are effective, then proponents for minor clearing will be relieved of the onerous clearing permit procedures that currently apply.
New provisions in the EP Amendment Act will enable costs recovery by way of payment imposed in implementation conditions, clearing permit contributions for an offset fund as well as costs recoverable as an environmental monitoring levy and regulations may be made as to type of account into which such payments are to be made and how such funds may be expended.
The exact details as to how these cost recovery, contribution and levy payments are to be calculated and notified to affected persons are currently unclear. It is also not apparent whether any review or appeal procedures will be available in respect of such payments. Developers and others who will be affected by this new regime will need to assess the additional costs and liabilities to be incurred, for example, in commencing a referral of proposal for Environmental Impact Assessment or an application for a clearing permit.
The EP Amendment Act expands the range of people who may be prosecuted for breach of a licence, and will include any person who carries on a prescribed activity and breaches relevant conditions (i.e. not just the licence holder or the owner of the land). The new provisions also clarify, for example, that a licence does not provide a defence to an emission unless such an emission is specified in the licence as an ‘authorised emission’. The new provisions significantly amend the defences that may be raised in relation to offences, for example adding a new defence of a 'reasonable lack' of knowledge of the licence concerned.
New provisions will enable the State to fully implement bilateral agreements while also removing the duplication of the Commonwealth and State environmental assessment processes.
The Environment Minister announced the Bill as the most significant reform of Western Australia’s environmental legislation since the EP Act came into effect. There will certainly be significant and far reaching impacts on owners, developers and other proponents.
If you have any queries in relation to the EP Amendment Act and need assistance feel free to contact any member of our experience Planning and Environment Team.
