Strategic assessment under the EPBC Act

The Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) requires all projects/proposals to be referred to the Commonwealth Environment Minister for assessment in circumstances where matters of national environmental significance (MNES) are likely to be significantly impacted.  Such actions are termed “controlled actions” and are subject to an assessment and approval process on an individual basis.

As developers in WA will be aware, the process of assessment and obtaining approvals is fraught with issues, particularly in relation to cost to development as a consequence of the constraints on developable land area, the requirement for the provision of offsets, as well as delay in project delivery.

The Federal Department and the WA Department of the Premier and Cabinet are in the process of developing a tool to streamline the EPBC Act approvals process and avoid the potential detrimental impact on land developers.

The purpose of this paper is to look at the tool proposed, namely the progress of a “strategic assessment”, to outline how it is proposed to work and to provide some comment on whether the tool will indeed succeed in dealing with developers’ concerns.

Strategic assessment process

Strategic level

  • An agreement is entered into between the Commonwealth and a person “responsible for the adoption or implementation of policy, plan or program” that a strategic assessment be undertaken with respect to the impacts of that policy/plan/program on species and other matters protected under Part 3 of the EPBC Act.

  • The strategic assessment is undertaken by the relevant parties and a strategic assessment report is referred to the Minister.

  • Upon receipt of the strategic assessment report, the Minister may endorse the policy/plan/program and approve the taking of an action or class of actions, subject to compliance with that policy/plan/program and any other conditions imposed.

Individual project level

  • An individual project is proposed.

  • As long as the project keeps within the scope of the endorsed policy, plan or program set out in the strategic assessment report and any approval conditions imposed by the Minister, no further assessment or approval is required for the purposes of the EPBC Act.

  • State planning and environment laws will continue to apply to that project separately.  Approvals under WA’s laws will still need to be obtained before development begins, unless a relevant exemption applies.  An example under the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) is the requirement for a permit to be obtained in order to clear native vegetation under s 51C of the Environmental Protection Act 1986 (WA).

To date, WA has a number of strategic assessments already in place in respect of resources related projects in the north west, including the Browse Basin LNG Precinct strategic assessment, the Pilbara strategic assessment by Rio Tinto and the Pilbara strategic assessment by BHP Billiton.

Perth/Peel strategic assessment

In August 2011, the Commonwealth and WA State Government agreed to undertake a strategic assessment of the Perth and Peel regions (Perth/Peel Strategic Assessment).

The terms of reference for the Perth/Peel Strategic Assessment were finalised in May 2012, following public consultation.

In undertaking the Perth/Peel Strategic Assessment, the State Government is required to develop a plan to manage matters of national environmental significance (MNES Plan) (including the species such as Baudin’s, Carnaby’s and Forest Red-Tailed Black Cockatoos) and an accompanying impact assessment report.

It is expected that the State Government will release these documents, as well as related planning documents and policies for public comment within the next six months (September 2013).

The scope of the Perth/Peel Strategic Assessment is guided by the document “Directions 2031 and Beyond - Metropolitan Planning Beyond the Horizon” (Directions 2031).  Relevantly, Directions 2031 sets out long term goals to promote housing affordability within the Perth and Peel regions and guides detailed planning and delivery of housing and infrastructure to accommodate expected population growth in Metropolitan Perth.

The advantages of undertaking this strategic approach for environmental assessment pursuant to the EPBC Act as stated by the relevant government agencies include:

  • an opportunity for early consideration of MNES in planning processes;

  • greater certainty to the local communities and developers over future development;

  • reduction in the administrative burden of preparing plans to take action consistent with a strategic assessment;

  • the capacity to achieve significant environmental outcomes, including addressing cumulative impacts, at a regional level; and

  • flexible time frames commencing early in the planning process.

Lavan Legal comment

A Perth/Peel Strategic Assessment has a number of key advantages over the current EPBC Act regime for referral and approval of controlled actions:

  • avoidance of unnecessary duplication of the assessment of environmental impacts;

  • the ability to assess the cumulative impacts of development proposals within the area covered by the policy, plan or program;

  • the ability to more clearly define at the outset, areas of strategic environmental importance within the area assessed;

  • the ability to plan in a holistic manner, avoidance, mitigation and offset measures to facilitate implementation of the program;

  • potentially better overall environmental outcomes at a reduced cost for developers; and

  • increased certainty for developers and the community.

In relation to the Perth/Peel Strategic Assessment, a further benefit for property developers is likely to be the upfront identification of areas of native vegetation required to be conserved and areas appointed for species offsets.

It is important to note, however, that a number of risks also arise as a consequence of this process for the development industry:

  • Strategic Assessments of a large scale will often result in decisions that apply for a long time.  For example, it is intended at this stage that the Perth/Peel Strategic Assessment apply for 20 years.

    • The Perth/Peel Strategic Assessment decisions become a statutory document, not a policy document.  Whereas a policy document has flexibility, the Minister’s approval and conditions will have no flexibility.

    • Whilst the State has suggested that the Minister’s approval and conditions may be reviewed every five years, there is a real risk that these reviews will not take place or will be delayed significantly.

  • The Perth/Peel Strategic Assessment proposes that areas of native vegetation are to be protected for conservation purposes, which gives rise to potential sterilisation of land.  The Perth/Peel Strategic Assessment will not provide for any compensation rights for landowners whose land has been affected by the Minister’s decision.

    • What this means is that if land is identified as Black Cockatoo habitat that is identified to be protected, then the owner will not be able to claim compensation notwithstanding the reduction in value in his or her land.

    • There is no apparent incentive on the Local or State Government to reserve land identified as Cockatoo habitat in local or regional planning schemes which would normally be the trigger for compensation rights.  Indeed, Local Governments and the State would probably prefer not to formally reserve the land through amendment of the local or regional planning schemes to avoid paying compensation.

    • This has the flow on risk to the environment as a consequence of the likelihood that landowner’s will feel disinclined to protect the environmental values of their land before the Strategic Assessment decisions are made.

  • There are no statutory timeframes for strategic assessments.

    • Normal assessment processes under the EPBC Act and the delivery of land for the purposes of development can be affected while the Perth/Peel Strategic Assessment is taking place.

    • We have seen this in relation to the Perth/Peel Strategic Assessment whereby the State has imposed a memorandum on the assessment of Crown land until such time as the Perth/Peel Strategic Assessment has been considered by the Minister.

Moving forwards, Lavan Legal recommends that developers and/or the development industry voice any concerns that it may have with the Perth/Peel Strategic Assessment proposal through submissions to the WA Department of the Premier and Cabinet before any final determinations are made.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.