Introduction to environmental impact assessments
An environmental impact assessment is a procedure 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 of Planning and Minister for Environment and Climate Change  VSC 222, at –, 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 Environment Effects Act 1978 (Vic) (‘EE Act’) and that there was nothing in the EE Act that suggested parliament intended this type of limitation. The case suggests that broad issues – and not just environmental considerations – may be included as part of the assessment process.
Environment impact assessment in Victoria
The environment impact assessment process in Victoria is closely linked to planning.
Environmental impact assessments may be required in Victoria 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 Victorian Government Department of Environment, Land, Water and Planning (DELWP) and are available at https://www.planning.vic.gov.au/environment-assessment/environment-assessment-home.
Overview of the process
The environment impact assessment process established by the EE Act has four stages:
- Referral to the Minister for Planning;
- Decision about whether an environment effects statement is required;
- The environment effects statement process;
- The Planning Minister’s assessment.
These four stages are discussed below.
Stage 1: Referral to the Minister for Planning
There are three ways a project can come before the Planning Minister for a decision about whether or not an environment effects statement (EES) is needed:
- the project proponent (i.e. a person in favour of the project) refers the project to the Planning Minister; or
- a decision-maker under another Act refers the project to the Planning Minister; or
- the Planning Minister decides to examine the project.
For public works arranged by the Planning Minister, an EES must be prepared (s 3(1) EE Act).
Other decision-makers (including other government ministers and VCAT) who have to make a decision that could significantly affect the environment may seek advice from the Planning Minister 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:
- The amendment of a planning scheme. Here, the same inquiry panel performs both functions: consideration of submissions on the proposed rezoning (see ‘Planning schemes’) and on the EES.
- Certain applications for planning permits.
- Development licences and approval of projects that will lead to new discharges of waste into the environment under the Environment Protection Act 2017 (Vic).
- 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).
- 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 https://www.planning.vic.gov.au/environment-assessment/major-transport-projects.
Stage 2: Decision about whether an environment effects statement is require
Once a project has been referred to the Planning Minister, the minister must decide whether or not an EES is required.
The Planning Minister may decide that:
- an EES is required; or
- an EES is not required; or
- an EES is not required if certain conditions specified by the Planning Minister are met.
Stage 3: The environment effects statement process
Once the Planning Minister decides that an EES is required for a project, the process of preparing an EES begins.
There are five steps in this process:
- Scope: the scope of the EES is developed by the Planning Minister, 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 Planning Minister 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 to give public notice of the exhibition of their EES in at least one daily newspaper, one or more local papers, and on DELWP’s website;
- the EES to be exhibited for 20 to 30 business days (or longer if the minister thinks that exceptional circumstances warrant it);
- the proponent 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).
Stage 4: The Planning Minister’s assessment
After the EES has been prepared, public submissions have been received, and an inquiry report has been submitted, the Planning Minister assesses the environmental effects of the proposed project.
The Planning Minister’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 Planning Minister’s assessment, but the minister’s findings and recommendations 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 12–25 of the EPBC Act.
Matters of national environmental significance include:
- World Heritage properties;
- National Heritage places;
- listed threatened species;
- listed threatened 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.environment.gov.au/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 24–43B EPBC Act).
Exemptions include where:
- the action is subject to a special environmental assessment process (s 160(2));
- the action has been declared not to need approval (s 33), such as Commonwealth action in accordance with an accredited management plan;
- 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. For more information about this review, see https://epbcactreview.environment.gov.au.
As part of its election platform, the newly elected federal Labor Government has proposed to provide a full response to the EPBC Act review and proposes to establish an independent environment protection regulator that is focused on compliance assurance and environmental data, information and analysis.
Referral to the Minister for Planning
Any other controlled action taken without the Planning Minister’s approval is prohibited (s 67A EPBC Act) and can result in prosecution or a fine (ss 481–485).
Referral to the Planning Minister 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);
- at the Planning Minister’s request if they believe a controlled action is about to be taken (s 70).
After the Planning Minister has received a referral, it is published online for 10 days for public comment (see www.environment.gov.au/epbc/public-notices). The Planning Minister must take into account public comments received during this 10-day period (s 75(1A) EPBC Act).
The Planning Minister 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 Planning Minister does not need to decide whether it is a controlled action. If the Planning Minister decides that approval is not needed, the activity may be carried out without contravention of the EPBC Act.
If the Planning Minister 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;
- public inquiry.
There is no opportunity for public comment on the Planning Minister’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 environmental impact assessment system.
Controlled actions may also be assessed under the Planning and Environment Act 1987 (Vic), Environment Protection Act 2017 (Vic), 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 http://www.environment.gov.au/protection/environment-assessments/bilateral-agreements/vic.
Decision to approve a controlled action
The Planning Minister may approve a proposed action after receiving the assessment report (s 133 EPBC Act). In deciding whether to approve the activity or not, the Planning Minister must consider issues relevant to any matter of national environmental significance, and economic and social matters (s 136(1)).
The Planning Minister must also take into account the factors listed in section 136(2) of the EPBC Act.
These factors include:
- principles of ecologically sustainable development (set out in section 3A of the EPBC Act);
- the assessment report relating to the action; and
- information provided by government ministers.
The Planning Minister 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 (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).