The Law Handbook 2024

Chapter 11.3: Environment and planning law 1029 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). 4  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. Matters of national environmental significance 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