2009
How the Environment Protection and Biodiversity Conservation Act 1999 may apply to local governments and their employees
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) — Australia's national environment law — 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 environment minister. Protected matters are matters of national environmental significance as well as the environment of Commonwealth land.
The eight matters of national environmental significance protected by the EPBC Act are:
- world heritage properties
- national heritage places
- wetlands of international importance (listed under the Ramsar Convention)
- migratory species protected under international agreements
- listed threatened species and ecological communities
- Commonwealth marine areas
- the Great Barrier Reef Marine Park, and
- nuclear actions (including uranium mines).
The EPBC Act also applies to actions that have an impact on the environment 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).
How does the EPBC Act work?
The EPBC Act requires 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 Australian 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, or a state, territory or other Australian Government process accredited by the Australian 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 activities may require approval if there is a likely significant impact on a matter protected by the EPBC Act. This means activities that involve, for example, clearing native vegetation, changing the natural flow of water, or controlling weeds and other pests should be referred to the Australian environment minister if they are likely to have a significant impact on a matter protected under the EPBC Act (see above). The EPBC Act Significant impact guidelines 1.1 provide information on several local government activities and their potential to have a significant impact on nationally protected matters. Once a referral is made, the environment minister makes a decision within 20 business days (four weeks) on whether approval is needed.
The EPBC Act also applies to actions by state, 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 department maintains an extensive database of matters of national environmental significance, such as lists of nationally threatened species, available at www.environment.gov.au/environment/epbc/assessments.
A searchable mapping tool is also available at www.environment.gov.au/erin/ert/environment/epbc, which allows anyone to determine which matters of national environmental significance 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 department's website at www.environment.gov.au/environment/epbc. State agencies and local government environment officers will also have more detailed information to help determine the level of risk, and whether 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 Australian 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 Australian 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 significantly affected.
Local government officials can advise applicants of the need to address the requirements of the EPBC Act in situations where a development proposal may have an impact on a nationally protected matter or the environment of Commonwealth land.
Councils are not responsible for making a referral to the environment minister on behalf of applicants, and the council's own approval of a project does not need 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 on nationally protected matters 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 nationally protected matters will rarely need Australian Government approval.
Planning instruments and council 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 nationally protected matter that has not been approved by the Australian environment minister.
Where the Australian Government is conducting a compliance investigation, it will normally consult with the relevant local government authorities.
The Australian Government aims to build a stronger partnership for environment protection, involving local and state government and the community. The EPBC Act is an important tool in achieving this, 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 go to: www.environment.gov.au/environment/epbc.