Environmental impact assessment
An EIA is a procedure for assessing the impacts on the environment likely to result from development proposals and is primarily a scientific technique existing within a legal framework. Although the focus is on biophysical issues, social and economic impacts may also be considered. In Victoria, the EIA process is closely linked to planning. An EIA may be required under the EE Act and the Ministerial Guidelines for Assessment of Environmental Effects (made under EE Act s 10). EIA reports are published by the Department of Energy, Environment and Climate Action (DEECA) and are available at www.planning.vic.gov.au.
The EIA process starts with a referral to the Minister for Planning for a decision regarding whether an EES is required. The referral can be made by:
the development proponent; or
a decision-maker under another Act (eg, other ministers or VCAT) (EE Act s 8); or
the Minister for Planning in relation to the government’s public projects (EE Act s 3(1)).
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-transportproject-facilitation-in-victoria.
Once a project has been referred to the Minister for Planning, the minister may decide that an EES is required, is not required or is not required if certain specified conditions are met. If the former, the process of preparing an EES begins and there are five steps in the process:
Scope: The scope of the EES is developed by the Minister for Planning, in consultation with the proponent and the public.
Consultation: The proponent prepares and implements a consultation plan.
Preparation: The proponent prepares the EES according to the scope, with assistance from the technical reference group.
Public review: The EES is released for public comment.
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 that:
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).
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, including an evaluation of whether the environmental impacts are acceptable or unacceptable and prepares a report that 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 recommendations are not binding on the decision-makers.
-
Under the 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’ (EPBC Act s 67). ‘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-impactguidelines-11-matters-national-environmentalsignificance.
Compliance with the referral, assessment and approval provisions of the EPBC Act is not required if an action falls within one of the exemptions (EPBC Act ss 29–43B).
Exemptions include where:
the action is subject to a special environmental assessment process (EPBC Act s 160(2));
the action has been declared not to need approval (EPBC Act 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 (EPBC Act s 38).
Any other controlled action taken without the Minister for Planning’s approval is prohibited (EPBC Act s 67A) and can result in prosecution or a fine (EPBC Act ss 481–485).
Referral to the Minister for Planning can be made:
by the person taking the action (EPBC Act s 68);
by a state government or local council (EPBC Act s 69);
by a Commonwealth agency (EPBC Act s 71); or
at the Minister for Planning’s request if they believe a controlled action is about to be taken (EPBC Act 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/publiccomments). The Minister for Planning must take into account public comments received during this 10-day period (EPBC Act s 75(1A)).
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 (EPBC Act ss 74B–74D), 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.
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. The first stage in the reform was completed in December 2023 with the passing of the Nature Repair Act 2023 (Cth) to establish a national, voluntary biodiversity market designed to create incentives to restore and protect the environment, including a marketplace where individuals and organisations can undertake nature repair projects to generate a tradable certificate (e.g. re-establishing vegetation along waterways, keeping feral species from destroying ecosystems). It is open to First Nations peoples and organisations, conservation groups and farmers.
At the time of writing legislation had also been introduced to establish Environment Protection Australia and Environment Information Australia. Unfortunately, the review’s recommended national environmental standards have not yet been formulated and it is unclear when, or if, they may form part of Australia’s environmental assessment laws.
-
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.
-
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 EIA 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.
-
The Minister for Planning may approve a proposed action after receiving the assessment report (EPBC Act s 133). 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 (EPBC Act s 136(1)).
The Minister for Planning must also take into account the factors listed in section 136(2) of the EPBC Act, including principles of ecologically sustainable development, 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 environmental matters. Conditions may be imposed on a grant of approval (EPBC Act 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 (EPBC Act s 487) (seek legal advice if you wish to do this).
Environmental impact assessment
Chapter: 11.3: Environment and planning law
Contributor: Dr Dru Marsh, Senior Adjunct Lecturer, Public Service Research Group, School of Business, UNSW Canberra; Night Service contributor, Fitzroy Legal Service; Glenn Osboldstone, Senior Lawyer, DTP Legal; and Deborah Hollingworth, Manager, Aboriginal Strategy and Partnerships, Environment Protection Authority Victoria
Current as of: 1 September 2024
Law Handbook Page: 929
Next Section: Protecting human health and the environment from pollution and waste
