Environment and planning law

An environmental impact assessment is a proc­ edure for assessing the impacts on the environment likely to result from development proposals. It is primarily a scientific technique existing within a legal framework. Although the focus is on biophysical issues, social and economic impacts are also considered.

In the case of Friends of Mallacoota Inc v Minister for Planning & Minister for Environment & Climate Change [2010] VSC 222, at [61]–[81], the Victorian Supreme Court held that the assessment of the environmental effects of the proposed works was not intended to exclude social effects. The judge noted that this argument would materially reduce the potential utility of the EE Act and that there was nothing in the EE Act that suggested parliament intended this type of limitation. This case suggests that broad issues – and not just environmental considerations – may be included as part of the assessment process.

The environment impact assessment process in Victoria is closely linked to planning. In Victoria, environmental impact assessments may be required under the EE Act and the Ministerial Guidelines for Assessment of Environmental Effects (made under s 10 EE Act). Environmental impact assess­ment reports are published by the Department of Energy, Environment and Climate Action (DEECA) and are available at www.planning.vic.gov.au. Overview of the process The environmental impact assessment process established by the EE Act has four stages:

2- A decision is made about whether an environment effects statement (EES) is required

3- The EES process;

4- The Minister for Planning’s assessment.  1- Referral to the Minister for Planning There are three ways a project can come before the Minister for Planning for a decision about whether or not an EES is needed:

1. the project proponent (i.e. a person in favour of the project) refers the project to the Minister for Planning;
2.  a decision-maker under another Act refers the project to the Minister for Planning; or
3. the Minister for Planning decides to examine the project. For public works arranged by the Minister for Planning, an EES must be prepared (s 3(1) EE Act). Other decision-makers (including other govern- ment ministers and VCAT) who have to make a decision that could significantly affect the environ- ment may seek advice from the Minister for Planning about whether an EES is needed (s 8 EE Act).

Apart from the government’s public projects, the decision-making processes in which an EES may be needed include: a The amendment of a planning scheme. One inquiry panel performs both functions: considers submissions on the proposed rezoning (see ‘Planning schemes’, above) and on the EES; b Certain applications for planning permits; c Development licences and approval of projects that will lead to new discharges of waste into the environment under the EP Act; d The licensing of mineral resources developments. Under the Mineral Resources (Sustainable Development) Act 1990 (Vic) (‘MRSD Act’), planning permission is not needed if an EES has been completed. The state planning scheme provides bare requirements for planning permits for mining projects (ss 41–42 MRSD Act); e Licences for proposed pipelines under the Pipelines Act 2005 (Vic). The Major Transport Projects Facilitation Act 2009 (Vic) governs the assessment, approvals and delivery of major transport projects in Victoria.

More information about this process is available at www. planning.vic.gov.au/environmental-assessments/ major-transport-project-facilitation-in-victoria. 2 Decision about whether an environment effects statement is required Once a project has been referred to the Minister for Planning, the minister must decide whether or not an EES is required.

The Minister for Planning may decide that:

• an EES is required;
• an EES is not required; or
• an EES is not required if certain conditions specified by the Minister for Planning are met. 3 The environment effects statement process Once the Minister for Planning decides that an EES is required for a project, the process of preparing an EES begins. There are five steps in this process: 1 Scope: the scope of the EES is developed by the Minister for Planning, in consultation with the proponent and the public. 2 Consultation: the proponent prepares and implements a consultation plan. 3 Preparation: the proponent prepares the EES according to the scope, with assistance from the technical reference group. 4 Public review: the EES is released for public comment. 5 Inquiry: the Minister for Planning may appoint an inquiry to review the EES, take submissions from the public, and report back to the minister. The procedures for consultation and public review of an EES are very important to achieving the objectives of the EE Act. In particular, to ensure that each assessment is ‘transparent’ and to: provide public access to information regarding potential environmental effects as well as fair opportunities for participation in assessment processes by stakeholders and the public. (Ministerial Guidelines, p. 3) The guidelines require:
• the proponent is to give public notice of the exhibition of their EES in at least one daily newspaper, one or more local papers, and on the Victorian planning website (www.planning.vic. gov.au);
• the EES is to be exhibited for 20 to 30 business days (or longer if the minister thinks that exceptional circumstances warrant it); and
• the proponent is to take submissions and prepare a response. Other statutory approvals processes that are required as part of EES projects may be specifically catered for to ensure joint processes are adopted (section 70 of the EP Act enables a development licence and EES approval to be published jointly).
• The Minister for Planning’s assessment After the EES has been prepared, public submissions have been received, and an inquiry report has been submitted, the Minister for Planning assesses the environmental effects of the proposed project. The Minister for Planning’s assessment report includes an evaluation of whether the environmental impacts are acceptable or unacceptable. The report also includes a description of any measures or modifications that are required to mitigate the project’s adverse environmental impacts. Relevant decision-makers – such as Victoria’s Environment Protection Authority (EPA) – are required to consider the Minister for Planning’s assessment, but the minister’s findings and recom- mendations are not binding on the decision-makers.

Under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’), the Commonwealth Government is responsible for regulating ‘matters of national environmental significance’, as listed in sections 12–25A of the EPBC Act.

Matters of national environmental significance include World Heritage properties, National Heritage places, listed threatened species and communities, wetlands of international importance, treaty protected migratory species, nuclear actions, the Commonwealth marine environment, and water resources affected by coal seam gas or large coal mining developments.

An action that is likely to have a significant impact on a matter of national environmental significance or Commonwealth land is known as a ‘controlled action’ (s 67 EPBC Act). ‘Significant impact’ is not defined in the EPBC Act; however, there are guidelines that provide assistance, such as the significant impact guidelines available at www. dcceew.gov.au/environment/epbc/publications/ significant-impact-guidelines-11-matters-national- environmental-significance.

Compliance with the referral, assessment and approval provisions of the EPBC Act is not required if an action falls within one of the exemptions (ss 29–43B EPBC Act).

Exemptions include where:

• the action is subject to a special environmental assessment process (s 160(2) EPBC Act);
• the action has been declared not to need approval (s 33), such as Commonwealth action in accordance with an accredited management plan; or
• the action is an operation undertaken in accordance with a regional forest agreement (s 38). The EPBC Act has been the subject of an independent review initiated by the Commonwealth Government. The final report of the review was released in January 2021. In its 2023–24 budget, the federal Labor government announced key elements of its ‘Nature Positive Plan’ in response to the EPBC Act review, including establishing one or more federal environment protection regulators: Environment Protection Australia, to enforce environmental laws; and Environment Information Australia, to provide an authoritative source of high-quality environmental information. At the time of writing the legislation needed to amend the EPBC Act was expected to be introduced in early 2024 (see www.aph.gov.au/ About_Parliament/Parliamentary_departments/ Parliamentary_Library/Budget/reviews/2023-24/ Environment).

  Referral to the Minister for Planning

  Any other controlled action taken without the Minister for Planning’s approval is prohibited (s 67A EPBC Act) and can result in prosecution or a fine (ss 481–485). Referral to the Minister for Planning can be made:
• by the person taking the action (s 68 EPBC Act);
• by a state government or local council (s 69);
• by a Commonwealth agency (s 71); or
• at the Minister for Planning’s request if they believe a controlled action is about to be taken (s 70). After the Minister for Planning has received a referral, it is published online for 10 days for public comment (see www.dcceew.gov.au/environment/epbc/public- comments). The Minister for Planning must take into account public comments received during this 10-day period (s 75(1A) EPBC Act). The Minister for Planning has 20 days following a referral to decide whether the activity is a controlled action, and therefore whether it needs approval. If the decision is clearly unacceptable (s 74B–74D EPBC Act), the Minister for Planning does not need to decide whether it is a controlled action. If the Minister for Planning decides that approval is not needed, the activity may be carried out without contravention of the EPBC Act.

  Assessment

  If the Minister for Planning decides that a proposal is a controlled action, it must be assessed using one of the following methods:
• accredited assessment process;
• assessment of preliminary documents (the ‘desktop assessment’) – this is appropriate when very minor impacts are predictable with certainty;
• public environment report;
• environmental impact statement; or
• public inquiry. There is no opportunity for public comment on the Minister for Planning’s decision about the type of assessment selected; however, there may be a chance to comment on the draft assessment prior to the minister’s decision to approve the project. Bilateral assessment In Victoria, controlled actions can be assessed under the relevant Victorian legislative systems accredited in the bilateral agreement between the Commonwealth and the State of Victoria (‘bilateral assessment’). The bilateral assessment proposes that a number of assessment approaches – including an EES under the EE Act – are equivalent to an environment impact statement under the Commonwealth environmental impact assessment system. Controlled actions may also be assessed under the PE Act, EP Act, Water Act 1989 (Vic) or Heritage Act 1995 (Vic). The bilateral assessment requires that public comment be incorporated into the assessments. More information about the bilateral assessment is available at www.dcceew.gov.au/environment/ epbc/approvals/state-assessments/vic.

  Decision to approve a controlled action

  The Minister for Planning may approve a proposed action after receiving the assessment report (s 133 EPBC Act). In deciding whether to approve the activity or not, the Minister for Planning must consider issues relevant to any matter of national environmental significance, and economic and social matters (s 136(1)). The Minister for Planning must also take into account the factors listed in section 136(2) of the EPBC Act. These factors include:
• principles of ecologically sustainable development (s 3A);
• the assessment report relating to the action; and
• information provided by government ministers. The Minister for Planning may also consider whether the person is suitable to receive an approval by considering their history in relation to environ- mental matters. Conditions may be imposed on a grant of approval (s 134) for the purpose of protecting, repairing or mitigating damage to a matter of national environmental significance. Decisions made under the EPBC Act can be challenged by an individual or by a group that has been actively engaged in environmental protection for the preceding two years (s 487) (seek legal advice if you wish to do this).