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 & Minister for Environment & Climate Change  VSC 222, at -, the Victorian Supreme An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. 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 A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. and that there was nothing in the EE Act that suggested parliament intended this type of limitation. The case suggests that broad issues may be considered as part of the assessment process.
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 DELWP and are available at www.planning.vic.gov.au.
Overview of the process
The process established by the EE Act has four stages:
- Referral to the Minister for Planning (‘minister’);
- Decision about whether an environment effects statement is required;
- The environment effects statement process;
- The minister’s assessment.
1 Referral to the Minister for Planning
There are three ways a project can come before the 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 minister; or
- a decision-maker under another Act refers the project to the minister; or
- the minister decides to examine the project.
For public works arranged by the 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 minister about whether an EES is needed (s 8).
Apart from the government’s public projects, the decision-making processes in which an EES is needed include:
- The A change made to a legal document or Act of parliament. of a planning scheme. Here, the same inquiry panel performs both functions: Something of value, such as money, given by one person to another person as part of a contract. of submissions on the proposed rezoning (see ‘Planning schemes’, above) and on the EES.
- Applications for planning permits.
- Licensing and approval of projects that A document that sets out what a person wants to happen to their money and other property after they die. lead to new discharges of Something that does lasting damage to land or alters the nature of the property so that it can no longer be used in the same way. into the environment under the EP Act.
- The Environment Protection Authority Victoria may require ecological impact statements (s 49AF, 49AG EP Act) when a declaration has been made that an industry has the potential to have a significant impact on the environment (s 49AD).
- 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
2 Decision about whether an environment effects statement is required
Once a project has been referred to the minister, the minister must decide whether or not an EES is required. The 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 minister are met.
3 The environment effects statement process
Once the 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 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 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 procedures are also consistent with the VCEC Victorian Guide to Regulation, and the Victorian Charter of Human Rights. 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 (www.planning.vic.gov.au);
- the EES to be exhibited for 20 to 30 business days (or longer if the minister thinks that exceptional circumstances A document issued by a court directing an officer to take certain action. May be a warrant of apprehension, directing that a person be arrested and brought before a court; a warrant of commitment, directing that a person be arrested and imprisoned; a warrant of distress, directing that a person’s goods be seized to satisfy a debt; or a warrant of seizure and sale of real estate. it);
- the proponent to take submissions and prepare a response.
4 The assessment of the Minister for Planning
After the EES has been prepared, public submissions have been received, and an inquiry report has been submitted to the minister, the minister assesses the environmental effects of the proposed project.
The 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 the EPA, are required to consider the minister’s assessment, but the minister’s findings and recommendations 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 12–25 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.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).
At the time of writing (1July2020), the EPBC Act is the subject of an independent review initiated by the federal government. The final report of the review is scheduled to be released in late 2020; although, this may be delayed due to the COVD-19 pandemic. For more information about this review, see https://epbcactreview.environment.gov.au.
Referral to the Minister for Planning
Any other controlled action taken without the minister’s approval is prohibited (s 67A EPBC Act) and can result in The party presenting evidence in court on behalf of the state or Commonwealth government against a person accused of committing a crime. Also called the Crown. or a fine (ss 481–485).
Referral to the minister can be made:
- by the person taking the action (s 68);
- by a state government or local council (s 69);
- by a Commonwealth agency (s 71);
- at the minister’s request if they believe a controlled action is about to be taken (s 70).
After the minister has received a referral, it is published online for 10 days for public comment (see www.environment.gov.au/epbc/public-notices). The minister must take into account public comments received during this 10-day period (s 75(1A)).
The 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), the minister does not need to decide whether it is a controlled action. If the minister decides that approval is not needed, the activity may be carried out without contravention of the EPBC Act.
If the minister decides that the 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 In Victoria, a child or young person under 18. See also infant. impacts are predictable with certainty;
- public environment report;
- environmental impact statement;
- public inquiry.
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 environment effects statement under the EE Act – are equivalent to an environment impact statement under the federal 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.environment.gov.au/protection/environment-assessments/bilateral-agreements/vic.
There is no opportunity for public comment on the 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.
Decision to approve a controlled action
The 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 minister must consider issues relevant to any matter of national environmental significance, and economic and social matters (s 136(1)). The 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 s 3A);
- the assessment report relating to the action; and
- information provided by government ministers.
The 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).