2. Promoting ecologically sustainable development

The EPBC Act promotes ecologically sustainable development using approaches such as strategic assessments and bilateral agreements. This section of the report describes the work in these areas—which substantially benefits EPBC Act administration by increasing intergovernmental cooperation and reducing duplication of environmental assessment processes. It also reports on project-specific environmental impact assessments.

2.1  Strategic approaches

Strategic assessments

Under section 146 of the EPBC Act, the minister may agree to assess the impacts of actions under a policy, plan or program. This includes but is not limited to:

• regional-scale development plans and policies
• large-scale industrial development and associated infrastructure
• fire
• vegetation/resource or pest management policies, plans or programs
• water extraction/use policies
• infrastructure plans and policies
• industry sector policies.

The Commonwealth has now entered into agreements with the responsible state government agencies to conduct strategic assessments of the Western Sydney Growth Centres in New South Wales, a Fire Management Policy in South Australia, the Midlands Water Scheme in Tasmania, the Mount Peter Master Planned Area in Queensland, the Liquefied Natural Gas Precinct Plan in Western Australia and urban development of the Molonglo region in the Australian Capital Territory.

The minister endorsed the Tasmanian Government’s program for the Midlands Water Scheme on 11 April 2011, after completion of the strategic assessment under the EPBC Act. The scheme has the potential to deliver 47 500 megalitres of water per year to about 16 000 hectares of farmland around Campbell Town and Ross in the Midlands region of Tasmania.

This is only the second strategic assessment to be endorsed under the EPBC Act, following Melbourne’s urban growth program, and the first to consider agricultural development.

Elizabeth River Valley, Campbell Town, Tasmania. (D.Ziegeler)

Marine bioregional planning

Marine bioregional plans are prepared under section 176 of the EPBC Act, which requires the minister to have regard to a bioregional plan in making any decision for which the plan has relevance. Marine bioregional plans present a consolidated picture of the marine environment and conservation values of each marine region, and provide a framework for strategic intervention and investment by government to meet its policy objectives and statutory responsibilities.

As part of the marine bioregional planning process, new networks of Commonwealth marine reserves (also called marine protected areas or marine parks) are being identified. These reserves will help meet Australia’s international and national commitments to establish a National Representative System of Marine Protected Areas (NRSMPA) by 2012.

The marine bioregional planning process is targeted at Commonwealth waters between the outer limit of state/territory waters (usually three nautical miles off-shore) and the outer limits of Australia’s Exclusive Economic Zone (EEZ) 200 nautical miles from shore.

The South-east Marine Region network of marine reserves was established in 2007. The draft South-west marine bioregional plan and a Commonwealth marine reserve network proposal were released for public consultation in May 2011. The draft marine bioregional plans and marine reserve network proposals for the North-west, North and East marine regions will be publically released in 2011–12. A separate process to formally establish the marine reserve networks under the EPBC Act will be undertaken once proposals are finalised. Management plans will then be developed through public and stakeholder consultation.

Bilateral agreements

The department has continued to maintain assessment bilateral agreements with all states and territories throughout 2010–11.

The department reviewed the Tasmanian assessment bilateral agreement ahead of the expiry of the agreement on 11 December 2010. After a period of public consultation, the review led to the development of a replacement agreement which commenced on 3 May 2011. The replacement agreement continues accreditation for the processes accredited in the previous agreement and extends accreditation to another Tasmanian assessment process, under Division 2A of Part 4 of the Tasmanian Land Use Planning and Approvals Act 1993.

A replacement bilateral agreement with Western Australia is being developed due to changes to the Western Australia assessment processes in November 2010. The draft replacement agreement was exhibited for 28 days with comments closing on 13 May 2011. As of June 2011, the department reviewed submissions received so the minister could consider whether to enter the draft replacement agreement.

The approvals bilateral agreement between the Commonwealth and New South Wales relating to the Sydney Opera House expired on 21 December 2010. New arrangements were being negotiated as of June 2011.

As of June 2011 the department was also refining the existing assessment bilateral between the Commonwealth and New South Wales to accommodate the New South Wales Government’s repeal of Part 3A of the Environmental Planning and Assessment Act 1979.

Further information about bilateral agreements can be found on the department’s website.

2.2  Environmental impact assessment

The department works closely with proponents and other stakeholders, including consultants as well as state and local governments, to ensure that the requirements of the environmental assessment process under the EPBC Act are understood. The department encourages proponents to discuss projects early in their development so that EPBC Act-related issues can be highlighted and taken into account in a project’s decision-making and planning.

Projects that most effectively achieve regulatory certainty under the EPBC Act are consistently characterised by:

• proponents engaging early with the department to ensure EPBC Act obligations are fully understood
• proponents seeking to address EPBC Act requirements at the same time as state or territory requirements, to maximise the opportunity to use accredited state and territory assessment
• projects using environmentally conscious design that avoids or minimises habitat clearing
• proponents providing high quality information
• proponents engaging positively with the community
• project outcomes clearly maintaining and enhancing the environment, including, where appropriate, providing additional habitat for threatened species.

The EPBC Act provides for a case-by-case assessment by either the Australian Government or an accredited assessor of state and territory processes under a bilateral agreement.

The proponent initiates this process by submitting a referral for a determination on whether there is a significant impact on a nationally protected matter and, if so, whether further assessment and approval is necessary (otherwise known as a controlled action). The EPBC Act allows for selection of an assessment approach that is most appropriate to the complexity and scale of the project. After the proposed action is assessed the minister or delegate then decides whether to approve the action.

In 2010–11 the statutory timeframes for the three key decision points in the environmental assessment process—a decision on whether the action is a controlled action, an assessment approach decision, and the approval decision—were met 68 per cent of the time. Of the decisions that ran over the statutory timeframe, 73 per cent were made within a further 10 business days of the statutory due date.

Detailed statistics relating to EPBC Act referrals, assessments and approvals are at Appendix A.

Referrals

In 2010–11, 428 actions were referred to the Australian Government for decision on whether approval was required under the EPBC Act. This was a small increase of 1.5 per cent on the previous year. Fifty referrals were the result of compliance actions by the department. Most referrals received were from Queensland with 24 per cent of the total. Across Australia the figures show an increase in referrals relating to residential development, renewable energy generation and supply, natural resources management and mining. There was a decrease in figures relating to tourism and recreation, non-renewable energy generation and land transport.

The possible outcomes of a referral are:

• not controlled action—no approval required as the action described in the referral will not have a significant impact on matters of national environmental significance
• not controlled action/particular manner—no approval required but the action must be undertaken in the manner specified in the referral. This provision may be used when there is clear evidence that a particular mitigation or avoidance measure will reduce or avoid significant impacts. Penalties apply to breaches of particular-manner decisions
• controlled action—approval is required through the assessment and approval process under the EPBC Act
• clearly unacceptable—the proposal is determined, without further assessment, to have an unacceptable impact on one or more matters of national environmental significance.

In 2010–11 decisions involving referrals were as follows:

• 146 actions were determined to be not controlled actions and to require no further assessment
• 104 actions were determined to be not controlled actions if carried out in a particular manner
• 150 actions were determined to be controlled actions and to require further assessment and approval decision.

The highest number of controlled action decisions was for mining projects.

Twenty-two referrals were withdrawn before a controlled action decision, 18 were withdrawn after a controlled action decision and six lapsed after a controlled action decision. Eleven reconsideration requests were received during the year and 16 decisions were made.

Under section 158 of the EPBC Act the minister may exempt a person proposing to take an action from the requirement to conduct an environmental assessment and/or obtain approval in relation to the action if he is satisfied that it is in the national interest to do so. One EPBC Act exemption was issued in 2010–11 for the remediation of flood damage to the Warrego Highway near Marburg Range in Queensland.

Assessments and approvals

Once a project is determined to be a controlled action under the EPBC Act, further assessment of the likely impacts to matters of national environmental significance is undertaken. A decision is made for all controlled action determinations on the approach by which this assessment is conducted (the assessment approach decision). There are five different levels of assessment. When deciding on the assessment approach the department considers factors such as the scale of the project, likely impacts and the amount of information already provided. Each level requires technical information provided by the proponent to be considered and each allows for a public comment period. Comments received during this time are then considered as part of the impact assessment.

Where appropriate, assessment by bilateral agreements which ‘accredit’ a particular state and territory assessment process may be used to reduce duplication of environmental assessment and regulation between the Commonwealth and the states and territories. The assessments of 17 projects were completed under bilateral agreements in 2010–11 and a further 94 projects were under assessment using a bilateral agreement at 30 June 2011.

Following assessment, the minister will decide whether to approve the proposed action and the conditions applied to that action. In 2010–11, 103 controlled actions were approved, a substantial increase (56 per cent) on the 66 controlled actions approved in 2009–10. Two controlled actions were not approved in 2010–11. Conditions attached to approvals may include requirements to:

• manage the environmental effects of construction
• provide compensatory habitat to offset impacts on listed species
• establish monitoring programs to ensure water quality is maintained
• use independent audits
• manage effects on cetaceans.

Decisions made, notices issued and invitations to comment under the EPBC Act are published on the department’s website.

Meeting statutory timeframes for assessment approach and approval decisions

Assessment approach and approval decisions made under the EPBC Act are governed by statutory timeframes. Fifty of the 124 assessment approach decisions were made outside the prescribed statutory timeframes. The majority of late assessment approach decisions were made within 10 business days of the statutory due date.

Twenty-eight of the 105 approval decisions were made outside the statutory timeframe.

Further information on statutory timeframes for referral, assessment and approval decisions are provided in Table 14 at Appendix A.

Actions by the Australian Government and actions on Commonwealth land

In addition to the eight matters of national environmental significance protected by the EPBC Act, the EPBC Act also confers jurisdiction over actions that have a significant environmental impact on Commonwealth land, or that are carried out by an Australian Government agency.

In 2010–11 four controlled action determinations were made relating to Commonwealth land and five controlled action determinations were made relating to actions by Australian Government agencies.

Australian Government agencies must seek advice from the minister before authorising any of the following actions if it is likely that they will have a significant impact on the environment:

• providing foreign aid
• managing aircraft operations in airspace
• adopting or implementing a major development plan for an airport
• an action prescribed by the EPBC Act Regulations.

The relevant Australian Government agency or employee must inform the minister of such a proposal and the minister must assess the action before advising the agency or employee on how to proceed.

In 2010–11 advice was requested on four occasions by the Department of Infrastructure, Transport, Regional Development and Local Government for proposals on Commonwealth airports. The minister’s delegate determined that advice was not required for one of those proposals.

Statements of reasons

Sections 77(4) and 78C(4) of the EPBC Act allow persons to request a statement of reasons about controlled action decisions and reconsideration of controlled action decisions respectively. In 2010–11 no requests were received under these provisions. A statement of reasons can also be requested for administrative decisions made under legislation, by way of the Administrative Decisions (Judicial Review) Act 1977. In 2010–11, 19 requests were received and 18 statements provided.

Reconsideration of a decision

Reconsideration of a decision is available in limited of circumstances and is the only way to revoke and re-make a decision. Typically, reconsiderations are undertaken on request when there is substantial new information or a substantial change in the likely effects on matters protected.

In 2010–11, 16 decisions were reconsidered by the minister or his delegate and 13 decisions were revoked and new decisions made.

2.3  Compliance and enforcement

The department takes a strategic approach to ensure that EPBC Act compliance and enforcement is consistent, efficient and effective across the marine and terrestrial environments. This approach includes the development and maintenance of relationships with other compliance and enforcement agencies of the Commonwealth, states and territories.

EPBC Act compliance and enforcement activity is consistent with the department’s Compliance and Enforcement Policy, which was updated in December 2009 following approval by the Attorney General’s Department and adoption by the minister. This policy provides regulated entities, stakeholders and the wider community with clear advice on how the department exercises its compliance and enforcement responsibilities. The policy is publicly available on the department’s website.

The EPBC Act provides a range of remedies for compliance issues, including remediation, deterrence, civil penalties and criminal prosecutions for more serious breaches, and reporting on compliance and enforcement issues. The department makes full use of all available remedies, with a particular emphasis on education and selecting remedies that achieve good environmental outcomes.

Further information on EPBC Act compliance and enforcement activities is in the cross-cutting activities section ‘Regulatory compliance and enforcement’, of the Corporate Outcome chapter and the annual report of the Director of National Parks.

Working with others

The department has an active EPBC Act compliance and enforcement program. During 2010–11 the department gave a series of presentations on the EPBC Act throughout Australia for local governments, state agencies and non-government organisations, to encourage greater awareness of and compliance with the EPBC Act.

The department shares information and undertakes a variety of joint enforcement operations with other state and territory environmental regulators through the Australasian Environmental Law Enforcement and Regulators Network (AELERT).

AELERT is a network of local, state, territory and Australian Government and New Zealand agencies which share information and develop cohesive regulatory practices. Joint compliance and enforcement operations are undertaken by AELERT members in priority operational areas.

The department continues to work closely with the INTERPOL Environment Crime Program. Numerous briefings on issues relating to the suspected illegal international movement of wildlife and products were provided in 2010–11 for intelligence and investigation purposes.

In October 2010 the department participated in the international INTERPOL-led Operation RAMP, which involved 51 countries. More than 600 operational activities, involving Commonwealth, state and territory authorities and targeting illegal wildlife trade were carried out across Australia under this operation. Operation RAMP’s Australian component led to the seizure of 36 animals, inspections and search warrants on 67 premises, and a number of arrests.

In May 2011 the department began to coordinate Operation CETUS, a national operation by Australian Government and state conservation and environment agencies under the AELERT banner. CETUS aims to protect migrating whales from undue disturbance and enforces whale approach limits, particularly at popular whale watching hotspots.

The department has established relationships with other Australian Government and state agencies for the provision of EPBC Act regulatory services such as the Australian Customs and Border Protection Service, the Australian Fisheries Management Authority and the Australian Quarantine Inspection Service. Cooperative arrangements are in place with a number of state agencies to provide compliance and enforcement services in state waters adjoining Commonwealth marine reserves.

Compliance audit plan

The department’s compliance audit plan comprises audits and a strategic risk-based audit program to verify compliance with conditions of approval and particular manner requirements. The compliance audit plan also evaluates the effectiveness of the conditions and requirements for protecting matters of national environmental significance.

In 2010–11 the department audited, or began auditing, four projects under the compliance audits program. These projects were selected from approvals made since the inception of the EPBC Act and included an industrial subdivision in Victoria, building works on Christmas Island, a residential development in Queensland and an electricity sub-transmission line in the ACT.

The strategic risk-based audit program focuses on specific areas such as industry sectors, geographical areas and protected matters. During 2010–11 the program focused on eight projects in the mining and exploration industries, residential developments in the Melbourne Urban Growth Boundary and a review of approvals that included conditions mandating the conduct of independent audits. Overall, the audits identified a substantial level of compliance with conditions. Instances of non-compliance were addressed in accordance with the department’s Compliance and Enforcement Policy.

The audit programs have also increased cooperation with state and local government co-regulators, enabling joint audits to be carried out and improving information sharing. A summary of the findings of each completed audit is published on the department’s website.

The department has a program of actively monitoring projects after approval to ensure adherence to conditions attached to approvals and fulfilment of requirements attached to particular manner decisions. Variations of conditions attached to 20 approvals were processed in 2010–11 and three particular manner decisions were reconsidered. One project was suspended for the third time in 2010–11.

Breaches and investigations

The department received 657 reports covering 466 new incidents or activities representing potential breaches of Part 3 of the EPBC Act in 2010–11. This is comparable to the 945 reports and 532 incidents reports in 2009–10 and the 925 reports and 522 incidents in 2008–09. Forty-seven site inspections were undertaken to obtain information to assess whether alleged non-compliance actions had occurred.

Incident reports are carefully examined to determine whether or not the EPBC Act applies. The person or organisation making the initial incident report is advised of the outcome of the completed matter. The most frequently reported matters relate to impacts on the Southern Cassowary in Queensland, Natural Temperate Grasslands of the Victorian Volcanic Plain in Victoria, and Carnaby’s and Baudin’s black cockatoos in Western Australia.

Many reports involve actions that have not yet commenced. In these cases the department investigates them to see if the activity should be regulated. During 2010–11 60 referrals were received as a result of departmental intervention. Of these one has been approved, two were withdrawn, 22 were determined to be controlled actions and four were determined not to be controlled actions provided the actions were undertaken in a particular manner. Twelve were determined not to be controlled actions. The remaining 19 were yet to be determined as at 30 June 2011.

In 2010–11 the department began 21 new cases of alleged breaches of the EPBC Act. Of these there were:  

• nine relating to Part 13A of the EPBC Act (illegal international movement of wildlife specimens)
• five relating to Part 3 of the EPBC Act (protection of matters of national environmental significance)
• seven relating to EPBC Act marine issues (marine reserve offences and marine species protection).

In 2010–11 the department executed five monitoring warrants and five search warrants under the EPBC Act. Seven notices to produce books and records under section 486F of the EPBC Act were also served.

In 2010–11 investigation outcomes included three successful criminal prosecutions, three remediation determinations, three infringement notices, two enforceable undertakings and an interim injunction, as follows:

• September 2010—a NSW man entered a plea of guilty to two counts of possessing illegally imported reptiles and was fined $3 000. This prosecution resulted from a joint investigation with the NSW Department of Environment, Climate Change and Water.
• November 2010—the department accepted an enforceable undertaking from Geelong City Council to pay $131 000 for clearing 0.8 hectares of Natural Temperate Grasslands of the Victorian Volcanic Plains ecological community.
• November 2010—the delegate for the minister imposed a remediation determination of $180 000 on Giovanni Nominees Pty Ltd for clearing four hectares of Natural Temperate Grasslands of the Victorian Volcanic Plains ecological community and destroying up to 15 Spiny rice-flower plants.
• December 2010—Stuart Petroleum Pty Ltd entered a plea of guilty in the Darwin Magistrates Court for taking an action before a referral decision had been made and was fined $102 750.
• December 2010—an interim injunction under the EPBC Act was granted to prevent further clearing of Natural Temperate Grasslands of the Victorian Volcanic Plains ecological community on a property at Parwan in Victoria. The injunction will remain in force until the matter is resolved in the Federal Court.
• March 2011—Australian Rail Track corporation entered into an Enforceable Undertaking with the department to a total value of $207 000 in relation to impacts upon the Natural Temperate Grasslands of the Victorian Volcanic Plains ecological community and Spiny rice-flower plants.
• March 2011—the delegate for the minister issued a remediation determination on Singleton Council (NSW) to pay $100 000 to repair and manage the critically endangered Weeping Myall–Coobah–Scrub Wilga Shrubland of the Hunter Valley ecological community.
• April 2011—the Queensland Gas Corporation was served with three infringement notices to the value of $6 600 (total value $19 800) for not adhering to the conditions of their approval.
• May 2011—a remediation determination was imposed on Douglas Rutledge of Warren, NSW, requiring him to remediate and manage 30 hectares of endangered Weeping Myall Woodland ecological community which was cleared on his property.
• May 2011—a NSW man entered a plea of guilty to three counts of possession of illegally imported reptile specimens and was fined $2 500. This prosecution resulted from a joint investigation with the NSW Department of Environment, Climate Change and Water.

Legal actions

The following legal actions occurred in 2010–11.

Anzbrook Pty Ltd t/as Cairns Marine Aquarium Fish v Minister for the Environment, Heritage and the Arts [2010] FMCA 34

On 14 April 2009 Cairns Marine Aquarium Fish lodged an application in the Federal Magistrates Court for judicial review of the minister’s decision to refuse to grant a permit to export CITES II-listed freshwater sawfish to an aquarium in Dubai. The matter was heard in the Cairns Federal Magistrate’s Court on 29 October 2009. On 22 January 2010 the Federal Magistrate quashed the minister’s decision and remitted it back for a new decision. The remitted decision was remade on 6 July 2011 and authorised the export of four of the eight sawfish specimens.

The Hour Glass (Australia) Pty Ltd v The Minister for the Environment, Heritage and the Arts (AAT 2009/3015 & AAT 2010/1625)

On 29 June 2009 The Hour Glass (Australia) Pty Ltd applied to the Administrative Appeals Tribunal, seeking merits review of two decisions: to refuse to return seized specimens and to refuse to grant a multiple-use import permit. The proceedings were dismissed on 13 August 2010 via consent orders agreed to by both parties. On 24 August 2010 Hour Glass applied for an ex-gratia payment for their legal costs, associated with the AAT proceedings, on the basis that the department had not complied with its obligation as a model litigant. On 29 March 2011 the Department of Finance and Deregulation rejected the application.

Glenn Parker and Others v the Minister for Environment Protection, Heritage and the Arts (VID 869 of 2009)

On 3 December 2009 four individual cat breeders made an application to the Federal Court for judicial review of the former minister’s decision of 2 August 2008 to amend the EPBC Act to ban importation of any cats containing serval genes (including the Savannah cat, a domestic cat crossed with an African serval). The matter was heard in the Federal Court on 12 and 13 May 2011. As at 30 June 2011 the matter remains reserved pending a decision.

No Ship Action Group and the Minister for the Environment, Water, Heritage and the Arts & Anor (N1149/2010)

On 23 March 2010 the No Ship Action Group applied to the Administrative Appeals Tribunal for merits review of the minister’s decision to grant a permit for the placement of the ex-HMAS Adelaide as an artificial reef off Avoca Beach, NSW. The matter was heard on 5–8 July and 16 July 2010. On 15 September 2010 the tribunal upheld the minister’s decision but attached additional conditions to the permit to further address the potential for pollution from polychlorinated biphenyls or lead paint. The vessel was scuttled on 13 April 2011.

Pacific Reef Fisheries (Bowen) Pty Ltd v Minister for Environment Protection, Heritage and the Arts (QUD 180/2010)

On 24 May 2010 Pacific Reef Fisheries (Bowen) Pty Ltd filed an application in the Federal Court of Australia for judicial review of the former minister’s decision of 4 March 2010 to approve the Guthalungra Aquaculture Facility, north of Bowen, Queensland, subject to conditions. As at 30 June 2011 the application was still before the court.

Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts and the Royal Botanic Gardens and Domain Trust [2011] FCA 113

On 16 July 2010 Bat Advocacy NSW Inc applied to the Federal Court of Australia for judicial review of the former minister’s decision of 13 May 2010 to approve the relocation of bats away from the Royal Botanic Gardens in Sydney. On 17 February 2011 the court ordered that the application be dismissed. On 10 March 2011 the applicant appealed the court’s decision. The appeal was heard by the court on 8 April 2011 and the appeal was dismissed with written reasons for the court’s decision handed down on 6 May 2011. On 7 July 2011 the court ordered that Bat Advocacy NSW Inc pay the costs of the respondents in relation to the appeal proceedings, and as at 30 June 2011 costs in relation to the initial proceedings were still before the court.

Western Australian Land Authority and Minister for Sustainability, Environment, Water, Population and Communities (WAD 379/2010 and WAD 250/2011)

On 7 December 2010 the Western Australian Land Authority (Landcorp) filed an application in the Federal Court of Australia for judicial review of the controlled action decision for a residential retail and office development at Mandurah in Western Australia (EPBC 2010/5410). The action was approved subject to conditions on 6 April 2011. A further hearing is pending.

On 28 June 2011, Landcorp filed a second application with the Federal Court of Australia (WAD 250/2011) for judicial review of the approval decision for the project on the basis that the approval decision was based upon a previous decision to treat the action as a controlled action, which was incorrect at law. A further hearing is pending.

Tasmanian Conservation Trust Inc v Minister for Sustainability, Environment, Water, Population and Communities (ACD 24/2011)

On 6 June 2011 the Tasmanian Conservation Trust Inc applied to the Federal Court of Australia for an order of judicial review of various decisions made by the minister on 10 March 2011 relating to the existing approval for Gunns Ltd to operate a pulp mill at Bell Bay, Tasmania. As at 30 June 2011 the matter was still before the court.

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