Environmental Protection Bulletin No. 16
Minor or preliminary works
and investigation work
“Minor or preliminary works” are associated with the implementation of a
proposal but are not of a scale or significance that would compromise the
EPA’s assessment or the Minister’s future decisions.
“Investigation works” are activities carried out to inform the assessment or
inform design or planning and are not associated with the implementation
of the proposal.
Purpose of this bulletin
This Bulletin is aimed at clarifying:
• What is meant by ‘minor or preliminary works’?
• What is meant by ‘investigation works’?
• What information a proponent needs to submit to the EPA if it wants the EPA’s consent to
undertake minor or preliminary works.
Background
When a proposal is being assessed by the Environmental Protection Authority (EPA) and before
any decision is made by the Minister for Environment, decision-making authorities (DMAs) are
prevented by law from making decisions about aspects of the proposal which, in effect, would
cause it to be implemented1.
It is also an offence for anyone to implement a proposal before it is approved by the Minister2.
However, there are occasions when proponents want to undertake some implementation
work prior to the EPA’s completion of its assessment and/or the Minister’s consideration of
whether or not the overall proposal should be implemented. The Environmental Protection
Act 1986 allows for “minor or preliminary” works, subject to the EPA’s consent3 .
The need for these early works must be justified and they must not compromise the EPA’s
assessment of the overall proposal or any future decisions based on the EPA’s assessment. If
the EPA consents to minor or preliminary works being undertaken during the assessment or
decision making phase, then other relevant DMAs may authorise those works.
What are minor or preliminary works?
Firstly, minor or preliminary work must be associated with the implementation of a proposal.
That is, any activities which a proponent would normally undertake if it were not for the
prohibition under s41A(1) of the EP Act (which prevents the proponent, or any person, from
doing anything to implement the proposal). Therefore, the definition of the proposal referred
to the EPA is important as it will be used in determining whether any proposed activity is
implementing the proposal. When planning and defining the proposal, proponents should
Section 41 of the EP Act
Section 41A(1) of the EP Act
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Section 41A(3) of the EP Act
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EPB No. 16 Minor or preliminary works and investigation work
include in the proposal definition all necessary infrastructure and associated operations (e.g.
rail, roads, accommodation camps, wastewater treatment plants, etc). Failure to do this may
cause delays in securing an approval.
Minor or preliminary work must also be limited to work that, of itself, is not likely to have
significant environmental impacts requiring detailed assessment by the EPA. Otherwise, it
would be inconsistent with the EP Act framework of assessing potential impacts before their
possible implementation. This also means that minor or preliminary work must not be of a
type that would irreversibly lead to substantial implementation of the proposal, as this would
pre-empt the outcomes of the EPA’s assessment of the overall proposal and the Minister’s
decision making process.
Minor or preliminary work also needs to be justified in order to obtain the EPA’s consent. The
EPA will consider the timing of, and the need for, the work against the environmental impacts
and scale of the work.
In summary, a proponent of a proposal under assessment will have to demonstrate that any
minor or preliminary work meets four key criteria when making an application to the EPA
under section 41A(3) of the EP Act:
1. it must be work associated with the implementation of the proposal;
2. the potential environmental impacts of the work must be less than that which would
normally require formal environmental impact assessment;
3. the work must not irreversibly lead to substantial implementation of the proposal; and
4. the work is justified in extent and timing.
If the minor or preliminary work is consented to by the EPA, separate approvals, permits or
licences may still be required by relevant DMAs (e.g. a native vegetation clearing permit from
the Department of Environment and Conservation).
What is meant by investigation works?
Work required to undertake environmental investigations (e.g. biological surveys, sampling for
Acid Sulfate Soils, etc) that are required to inform the EPA’s assessment of a proposal, are not
works associated with the implementation of the proposal. Similarly, design investigations
(e.g. geotechnical work for determining proposal design) are not associated with the
implementation of the proposal. As such, proponents are not prevented from carrying out
investigations under section 41A(1) and DMAs are not prevented under section 41 from
approving investigation works.
No EPA consent is required for investigation or design works4, unless they are likely to have
significant impacts on the environment. If this is the case, they may need to be referred and
assessed by the EPA in their own right.
Investigation works still require separate approvals, permits or licences from relevant DMAs.
What information needs to be submitted to the EPA
along with a proponent’s request for the EPA’s consent
to undertake minor or preliminary works?
If a proponent of a proposal being assessed by the EPA wishes to obtain the EPA’s consent to
undertake minor or preliminary work, the proponent will need to submit the following to the
EPA:
1. Details of the work proposed.
To adequately define the work, the proponent will need to include a full description of the
work, detailed spatial information on the location and area of the work, timing of work, and
other approvals that would be required to authorise the work.
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December 2011
Although the EPA’s environmental scoping document or environmental impact assessment requirements
may inform the nature of the investigations required.
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EPB No. 16 Minor or preliminary works and investigation work
2. Information which demonstrates that the work is concerned with the implementation of
the proposal.
Details of the aspect of the proposal the work is implementing.
3. Details of the potential environmental impacts caused or likely to be caused by the work.
Note: impacts must be less than that which would normally require formal environmental impact
assessment and proponents must use practices and procedures to implement the works which will
minimise the impacts on the environment.
4. Details of any decommissioning or rehabilitation works which would be carried out should
the overall proposal not be implemented.
The residual environment impacts of the work after any rehabilitation will need to be considered in
the proponent’s arguments justifying the need for the work.
5. Information which explains how the work would not constitute the irreversibly substantial
commencement of the implementation of the proposal.
The application will require a clear statement from the proponent that carrying out the work will not
commit the proponent to further implementation of the overall proposal.
6. Explanation as to the necessity and timing for undertaking the works.
The EPA having considered the proponent’s information will either consent to the works being
undertaken or provide reasons to the proponent as to why it cannot consent to the works being
undertaken.
The EPA has attached a checklist for proponents to use in making a request for the EPA’s consent to
undertake minor or preliminary works.
Information for proponents
Proponents should identify the need for minor or preliminary works as early as possible in the
assessment process. The need for minor or preliminary works should ideally be considered at the
referral and Environmental Scoping Document stages of the assessment.
Proponents and others (such as contractors or consultants) undertaking the work should be aware
that the granting of a minor or preliminary works consent by the EPA does not exempt the proponent
from obtaining all other authorisations required to undertake the work (e.g. clearing permit; section
18 consent under the Aboriginal Heritage Act 1972).
The consent of the EPA for the proponent to undertake minor or preliminary works only acts as
an exception to the prohibition on relevant DMAs provided for under section 41 of the EP Act.
That is, proponents must still obtain necessary approvals from relevant DMAs. Further, any work
implementing the proposal outside that consent would constitute an offence5.
Information for Decision-Making Authorities
For work associated with a proposal under assessment by the EPA, DMAs need to be aware of
the prohibitions under sections 41 and 41A of the EP Act (or additional constraints under sections
51F, 54(5) and 57(7) regarding making decisions on clearing permits, works approvals and licence
applications which are related to the proposal) and of the need to refer significant proposals to the
EPA under section 38 of the EP Act.
For any proposed work the DMA needs to determine if that work is implementing the proposal
under assessment by the EPA. If so, then the DMA is prevented from approving the work until the
EPA’s assessment is complete, or the EPA informs it that the work has been consented to as minor or
preliminary work. If not, (e.g. in the case of investigation works) then the DMA needs to apply its
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Section 41A(1) of the EP Act
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EPB No. 16 Minor or preliminary works and investigation work
normal processes for deciding whether or not the work needs to be referred under section 38 of the
EP Act, as a new proposal.
If the DMA is unsure about whether proposed work is implementing of the proposal under
assessment by the EPA, then it should seek advice on this matter from the Office of the EPA.
Please note that this Environmental Protection Bulletin provides general guidance and does not
constitute legal advice. Proponents and consultants are advised to refer to the Environmental
Protection Act 1986 and relevant case law:
•
Roe v The Director General, Department of Environment and Conservation for the State of
Western Australia [2011] WASCA 57
•
Roe v The Director General, Department of Environment and Conservation for the State of
Western Australia [2011] WASCA 58
Examples of works that may be considered “Minor or Preliminary”
These examples are provided for guidance only
Example
Advice (Subject to applying the criteria)
A proposal for a remote mine site, associated infrastructure
(which includes air strip, accommodation camp, offices and
roads), railway and loading infrastructure at a port is being
assessed by the EPA at the level of assessment of Public
Environmental Review (PER).
Construction of the airstrip relates to implementation
of the proposal. An application to the EPA is required.
The EPA may consent to the work, but the proponent
would still need relevant approvals from other DMAs.
The proponent wants to construct the airstrip in order to
gain access to the site for survey work. The proposed air
strip is located on previously cleared pastoral land.
Clearing for definition drilling of an ore body for a proposal
that is under assessment by the EPA.
This work is considered investigation or design work
and, as such, proponents are able to carry out such
investigations without EPA consent. Further, there
is no constraint on DMAs issuing the necessary
approvals for investigation works, unless it is to be
carried out in a sensitive area and the work itself is a
significant proposal. In this case the work should be
referred to the EPA.
Clearing to provide access for flora, fauna and Aboriginal
heritage surveys for the purposes of determining the
environmental impact of a proposal under assessment by
the EPA.
This work is investigation work needed for the
assessment and, as such, does not require EPA
consent.
The proponent would still need relevant approvals
from DMAs, unless it is to be carried out in a sensitive
area and the work itself is a significant proposal. In
this case the work should be referred to the EPA
A proposal for a mine site, processing hub, associated
infrastructure including an accommodation village, onsite
offices, gas turbines with back up diesel generators and
a desalination plant for drinking water supply is being
assessed by the EPA at the level of assessment of PER.
Due to the sensitivity of the location, the proposed
impacts are likely to be significant and the EPA
may not consent to this being considered minor or
preliminary work. Indeed, the work may represent a
‘significant proposal’ which may need to be referred
The proponent would like to partly construct their proposed to the EPA.
accommodation village including a diesel generator and
wastewater treatment system, to temporarily house
survey and geotechnical personnel in order to undertake
feasibility studies and survey work. A small temporary
construction force may also use the accommodation
village. An extension to the access road is also needed
from the main highway. The area the proponent
has identified for the construction is in an identified
environmentally sensitive area which contains Declared
Rare Flora and a known Threatened Ecological Community.
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EPB No. 16 Minor or preliminary works and investigation work
Timing and relationship between EIA and minor or preliminary works and investigation work
Proposal
referred to
EPA
{
Environmental Impact Assessment
EPA Report
to Minister
Appeals
Minister decides
whether or not the
proposal may be
implemented
Implementation
of proposal
Work to inform EPA assessment (No EPA approval required)
Investigation
works
Geotechnical work (No EPA approval required)
All works may require
approvals from decision
making authorities,
eg. vegetation clearing,
water licensing;
Aboriginal heritage, etc.
Minor or preliminary work toward implementation of a proposal (EPA must approve)
For more information, contact:
Office of the Environment Protection Authority,
Locked Bag 33, Cloisters Square, Perth WA 6850
tel +61 8 6467 5600
fax +61 8 6467 5562
email info@epa.wa.gov.au
www.epa.wa.gov.au
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CHECKLIST
EPA S41A(3)
Preparing a Request for EPA Consent to
Undertake Minor or Preliminary Works –
Section 41A(3) of the Environmental Protection Act 1986.
This checklist has been prepared to supplement Environmental Protection Bulletin – Minor or
Preliminary Work and Investigation Work (EPB No. 16), and help guide Section 41A(3) request
preparation. Please ensure that all required information indicated is provided before you submit your
request. If you have any queries, please contact the OEPA on 6467 5419 (EIA assessment procedures
enquiries).
Information to be provided
1. Information required to be submitted – Refer to the Environmental Protection
Bulletin No. 16 for further details.
1.1. Proposal Title
1.2. Assessment No.
2. Information regarding proposed Minor or Preliminary Work (to be submitted for
all requests)
Provided?


2.1. Details of the work proposed.

2.2. Information which demonstrates that the work is associated with the
implementation of the proposal.

2.3. Details of the potential environmental Impacts caused or likely to be caused
by the work.

2.4. Details of any decommissioning or rehabilitation works which would be
carried out should the overall proposal not be implemented.

2.5. Information which explains how the work would not constitute the
irreversibly substantial commencement of the implementation of the
proposal.

2.6. Explanation as to the necessity and timing for undertaking the works.
3. Other information (where relevant)
3.1. Detailed spatial data showing the location and area of the work.

3.2. Details of consultation with relevant stakeholders
Documentation to submit a request


Attached?
•
Completed checklist (this sheet) attached to the section 41A(3) request

•
Hard copy of the request, including relevant information, and

•
Electronic copy of the request, including any applicable spatial data and other
relevant information
Submit to:
Registrar, Office of the EPA, Locked Bag 33, Cloisters Square WA 6850
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