Protecting Places in the Commonwealth Heritage List

Interior of the Low Island and Low Islets Lightstation, Low Island via Port Douglas, QLD

Places in the Commonwealth Heritage List are protected by the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The EPBC Act protects a number of matters of national environmental significance (MNES). These include:

• Listed threatened species and ecological communities
• Listed migratory species
• Wetlands of international importance (Ramsar Wetlands)
• The Commonwealth marine environment
• World Heritage properties
• National Heritage places
• Nuclear actions
• The Great Barrier Reef Marine Park
• Water resources in relation to coal seam gas or large coal mining development.

More information about these matters is available in the policy statement Significant Impact Guidelines 1.1 - Matters of National Environmental Significance.

The EPBC Act also protects Commonwealth Heritage places overseas and the environment from actions by Commonwealth agencies or on Commonwealth land. More information about these matters is available in Significant impact guidelines 1.2 - Actions on, or impacting upon, Commonwealth land and Actions by Commonwealth Agencies. In this case “environment” includes any heritage values, particularly listed values, that a place might have.

What is an action?

An ‘action’ is defined broadly in the EPBC Act and includes: a project, a development, an undertaking, an activity or series of activities, or an alteration of any of these things.

An action may have both beneficial and adverse impacts on the environment, however only adverse impacts on MNES are relevant when determining whether approval is required under the EPBC Act.

When do I have to refer my action to the Department?

The EPBC Act works on a self-assessment and referral process. If you intend on taking an action which might impact a Commonwealth Heritage Place you should undertake a self-assessment to determine whether there will be a significant impact on the “environment” (including heritage values) or any other MNES.

If you believe, after a self-assessment, that your action potentially impacts upon one or more MNES, or the environment on Commonwealth land, you are required to refer the project to the Department. You may also make a referral if you are unsure if your project will have significant impacts. The purpose of the referral process is to determine whether or not a proposed action will need formal assessment and approval under the EPBC Act. Going through the referral process is the only way to ensure legal coverage under the EPBC Act.

More information about the referral process and some tips on how to prepare a referral are available in the Submitting a referral under the EPBC Act fact sheet. The referral can be made online. Submitted referrals are also required to be published online for public comment.

What are the outcomes of a referral?

There are three outcomes of a referral:

• Not a Controlled Action (NCA) is when the Department does not think that there will be a significant impact on MNES or the environment on Commonwealth land and no further assessment or oversight is needed for the project to progress. However, the project will still have to be undertaken as referred i.e. as outlined in the referral documentation provided to the Department. 
• Not a Controlled Action – Particular Manner (NCA-PM) is when the information provided in the referral is sufficient for the Department to believe that, if undertaken as described, it is unlikely that the action will have significant impacts on MNES but still requires some oversight of the project through the implementation of particular manners which restrict the project to proceeding in an agreed manner. It is important to note that an NCA-PM cannot be varied so is not the best approach when the project and management measures may be more fluid. The only way to change a NCA-PM is to reconsider the decision, which can only occur in a very limited number of circumstances including the provision of substantial new information or a significant change in circumstance not foreseen at the time of the original decision.
• Controlled Action (CA) is when the Department believes there is the potential for a significant impact on a MNES and further assessment, and potentially further information, is required. If the project is approved conditions and offsets may be required.

If the project is determined to be a controlled action it will need to undergo further assessment if it is to proceed. The environment assessment process fact sheet provides more information on the different assessment processes. If, following assessment, the impacts of your project are found to be acceptable then the Department may approve your project with or without conditions. If there are residual significant impacts you may be required to offset these. A high level overview of the whole process is available on the Department’s website at Environment assessment and approval process.

Are there any costs associated with a referral?

Cost recovery arrangements apply to the referral and assessment processes, however there are some exemptions from cost recovery fees. One of these is for small businesses. A small business is an entity which has an aggregated turnover of less than $10 million in the previous financial year. To apply for the exemption, you will need to declare on the online referral form, or the appropriate form at the assessments stage, that you meet the definition of a small business under the Income Tax Assessment Act (1997).

Where can I get some more advice?

If you would like to meet to discuss your project, or receive some advice to help you put together a comprehensive and targeted referral, you can organise a pre-referral meeting with an assessment officer and a Heritage Branch representative. A pre-referral meeting can occur early in your planning process or when you have a draft version of your referral that you would like an assessment officer to consider. Please note, however, that an assessment officer cannot give you advice whether or not to refer, but will be able to indicate whether your self-assessment is on track, advise on other matters you may wish to consider and answer any questions about significance thresholds. Further information on pre-referral meetings is available at Summary information to assist with a pre-referral meeting - Guidance for proponents and consultants. If you would like to organise a pre-referral meeting you can contact epbc.referrals@environment.gov.au.

The Heritage Branch can also provide some high level advice on potential impacts of actions. To contact the Heritage Branch email heritage@environment.gov.au.