Proposed changes to the Environmental Protection Act 1986(WA) – Part IV and Part V

The Environmental Protection Amendment Bill 2020 (WA) (Bill) was introduced on 16 April 2020 to amend the current Environmental Protection Act 1986 (WA) (EP Act).

The Bill is the product of a comprehensive review of the EP Act by the State government, involving consultation with various decision-makers, local government agencies, key stakeholders and the general public.

While the proposed Bill does not depart significantly from the current EP Act, the proposed amendments will have some impact on the current state of WA’s environmental approvals and regulatory processes. Below we provide examples of key changes proposed under Part IV and Part V.

Part IV - Assessment and Approvals Process

Some notable changes proposed include the following:

Proposals

• Proponents will be in a position to amend proposals prior to the Office of the Environmental Protection Authority (EPA) deciding whether or not assessment is required. This will be useful in circumstances where a third-party referrer has not adequately captured the proposal and the proponent wishes to provide additional information.
• In making the decision to assess or not to assess a proposal, the EPA will be permitted to take into account other statutory decision-making processes that may mitigate a proposal’s environmental impacts. This would include, for example, EPA review of the implications of conditions attached to a development approval granted under the Planning and Development Act 2005 (WA).
• The proposed Bill clarifies that any reference in the EP Act to the effect of a proposal on the environment will be taken to include the cumulative effect of impacts of a proposal on the environment. This clarifies a historical grey area regarding the consideration of cumulative impacts of a proposal in the environmental impact assessment process.

Schemes

• The EPA will be able to request further information to assist in making a decision as to whether or not to assess a Scheme, or to determine whether or not a Scheme is capable of being made environmentally acceptable.
• The EPA will be permitted to make recommendations as to whether Schemes should be implemented at all, rather than only being able to make recommendations on the conditions imposed.

Part V – Clearing of Native Vegetation

Notable changes to the clearing provisions include the following:

Referrals

• The Bill proposes an option to refer certain clearing to the CEO of the Department of Water and Environmental Regulation (DWER) to determine whether or not a clearing permit is even required. We note that this brings the EP Act into line with the “controlled action” regime of the Federal environmental approvals process and may be useful to a proponent in circumstances where there is some uncertainty about the application of an exemption  The usual clearing permit application process will be maintained by the Bill.
• Clearing without a permit will not be an offence if the CEO of DWER has determined that a permit is not required following referral.

Planning

In considering a clearing matter, DWER will be required to have regard to any relevant development approval granted under the Planning and Development Act 2005 (WA).  Although this happens in the current process of assessment, the requirement is now proposed to be formalised.  

On the whole the proposed reform is fairly moderate. Primarily seeking to streamline administrative and regulatory processes, it does not contemplate a significant overhaul of the legislation.

The Bill is still in the early stages of progressing through Parliament and is subject to change, however we welcome any concerns or queries you may have. Please feel free to contact any member of our experienced Planning and Environment team.