EPBC

Publications

Local Government and Commonwealth Environment Law

Fact sheet
Department of the Environment and Heritage, July 2003

How the Environment Protection and Biodiversity Conservation Act 1999 may apply to Local Governments and their employees

In 1999 the Australian Parliament enacted far-reaching reforms to national environment protection laws with the introduction of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act).

Amongst other things, the EPBC Act makes it an offence for any person to take an action that is likely to have a significant impact on matters protected by the Act, unless they have the approval of the Australian Minister for the Environment and Heritage (the Environment Minister). Those protected matters include matters of National Environmental Significance (NES matters) as well as the environment of Commonwealth land.1

There are seven NES matters protected by the EPBC Act:

How does the EPBC Act work?

The EPBC Act works by requiring anyone who may be planning to take an action that is likely to have a significant impact on a matter protected by the Act to refer their project to the Environment Minister to determine whether or not approval is required. If an approval under the EPBC Act is needed, it can only be given after the impacts of the project have been assessed through a rigorous and transparent process run by the Department of the Environment, Water, Heritage and the Arts (DEH), or a State, Territory or other Australian Government process accredited by the Environment Minister.

Local Government is a key player in protecting Australia's environment and the EPBC Act does have implications for the operations, responsibilities, employees and contractors of local governments.

How does the EPBC Act apply to actions by Local Governments?

Local government works activities may require approval if there is a likely significant impact on a matter protected by the EPBC Act. This means activities involving, for example, clearing native vegetation, changing the natural flow of water, or controlling weeds and other pests should be referred to the Environment Minister if it is likely the action would have a significant impact on a matter protected under the EPBC Act (see above). The EPBC Act Administrative Guidelines on Significance (July 2000), on page 11, provide information on a range of local government activities and their potential to have a significant impact on NES matters. Once a referral is made, the Environment Minister makes a decision within 20 business days (4 weeks) on whether approval is needed.

The EPBC Act also applies to actions by States, Territory and Australian Government agencies.

The first step in working out how the EPBC Act affects a particular area or project is to locate matters protected by the EPBC Act in the immediate area. The DEH maintains an extensive database of NES matters, such as lists of nationally threatened species, available through its web site at www.environment.gov.au/epbc/assessmentsapprovals.

A searchable mapping tool is also available at www.environment.gov.au/erin/ert/epbc which allows anyone to determine which NES matters may be affected by development in a particular area.

Once you know what may be affected, it is a matter of determining whether a significant impact is likely. Information about habitat issues and threats affecting each protected area or species is also available at the DEH web site at www.environment.gov.au/epbc. State agencies and local government environment officers will also have more detailed information to help determine the level of risk and whether or not it is advisable to make a referral.

Do projects in a local government area need approval from the Australian Environment Minister?

Projects in a local government area may need the approval of the Environment Minister in addition to local and State approvals.

Developments that comply with local and State requirements may still need to be separately approved by the Environment Minister. Failure to gain the Minister's approval can leave developers open to unnecessary delays, and even prosecution, if matters protected by the EPBC Act are subject to significant impacts.

Local Government officials can advise applicants of the need to address the requirements of the EPBC Act in situations where a development proposal may impact on an NES matter or Commonwealth land.

Councils are not responsible for making a referral to the DEH on behalf of applicants and the Council's own approval of a project is not an action that needs to be referred under the Act.

How can Councils minimise the need for Australian Government regulation of local projects?

Sensitive planning and project design can minimise the need for Australian Government regulation of local projects.

Where significant impacts are avoided through local planning processes there is unlikely to be a role for the Australian Government in regulating projects. Similarly, projects that are designed from the ground up to avoid impacts on NES matters will rarely need Australian Government approval.

Planning instruments and decisions do not need approval under the EPBC Act.

What happens if people or organisations don't comply?

The EPBC Act contains substantial criminal and civil penalties for breaches of the Act.

The EPBC Act also specifically allows the general public and community-based organisations access to the Federal Court to seek an injunction to, for example, stop an action that is likely to have a significant impact on a matter protected by the Act and the person responsible does not have an approval from the Environment Minister.

Where the Australian Government is conducting a compliance investigation, it will normally consult with the relevant local government authorities.

The Australian Government's aim is to build a stronger partnership for environment protection – involving local and state government and the community. The EPBC Act is an important tool in bringing that about with its emphasis on preventing environmental impacts and managing development through full compliance, better information and consultation.

How can I find out more about the EPBC Act?

For more information visit the web site at: www.environment.gov.au/epbc. Or contact the DEH's Community Information Unit, on 1800 803 772 or email ciu@environment.gov.au. If you require more specific information on EPBC referrals, compliance or training and client services, ask the Community Information Unit to be put through to these areas.

1. The EPBC Act also applies to actions taken on Commonwealth land, and to actions taken by the Australian Government, and Australian Government agencies, which are likely to have a significant impact on the environment (anywhere).