Operational Review of the Threatened Species
Conservation Act 1995 (NSW), the Environmental
Planning and Assessment Act 1979 (NSW), and the
Environment Protection and Biodiversity
Conservation Act 1999 (Commonwealth)
Final Report
24 July 2009
© Commonwealth of Australia, 2009
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Final Report
24 July 2009
Page 2 of 109
Table of Contents
Page
List of Figures and Tables
3
Executive Summary
4
1.0
Introduction and Background to the Review
10
1.1 Background
10
1.2 Purpose and Scope of the Review
12
1.3 Review Team and Approach
13
Current Operations
14
2.1 Landuse Planning
15
2.2 Development Control
18
2.3 Listing of Threatened Species, Ecological
Communities and Key Threatening Processes
24
2.4 Threatened Species Licensing Under NSW Threatened
Species Conservation Act (Sections 91 & 95)
27
Opportunities for Improvement and Proposed
Operational Refinements
29
3.1 Opportunities for Improvement
30
2.0
3.0
4.0
3.1.1
Communication and Coordination
30
3.1.2
Offsets
32
3.1.3
Strategic Planning
34
3.1.4
Listing
35
3.2 Implementation
38
Conclusion
39
Appendices
40
List of Figures
Figure 1: Plan making under EP&A and EPBC Acts
17
Figure 2: Assessments under the EP&A Act (A3)
23
Figure 3: Listing Threatened Species, Populations and Ecological
Communities under the NSW TSC Act 1995
26
Figure 4: Threatened Species Licensing Under NSW TSC Act
(Section 91 and 95)
28
List of Tables
Table 1: Timetable of EPBC Act Listing Process for Each Annual
Assessment Cycle – Species, Ecological Communities, Key Threatening
Processes
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25
Page 4 of 109
Executive Summary
In April 2009 the Chief Executive Officers of the NSW and Australian agencies
responsible for administering planning and environmental legislation commissioned
an operational review of the way those agencies interact on the assessment and
approvals for threatened species, to streamline assessment and decision making
while ensuring strong environmental outcomes. A team comprising representatives of
the NSW Department of Planning (DoP), the NSW Department of Environment and
Climate Change (DECC) and the Australian Government Department of the
Environment, Water, Heritage and the Arts (DEWHA) was independently convened
by Brian Gilligan to undertake the review during May and June 2009.
Both the Australian and NSW governments have statutory responsibilities for
biodiversity conservation and environment protection. The operational linkages
between the Threatened Species Conservation Act 1995 (NSW) (TSC Act), the
Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act), and the
Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth)
(EPBC Act), and interactions between agencies administering the Acts, have been
reviewed.
The nature and implications of jurisdictional overlap in assessment and approval
processes relating to impacts on matters of national environmental significance
(NES) as defined in the EPBC Act, such as Ramsar wetlands and migratory birds
were a particular focus. Differences in definitions, assessment criteria, and
procedures for the listing of threatened species and ecological communities were
also considered.
Major Infrastructure Projects and Land Releases
Proposals for major infrastructure projects brought forward under the
Commonwealth’s infrastructure stimulus package have drawn particular attention to
the importance of efficient and effective decision making. Similarly, major land
releases require coordination between government agencies to make use of bilateral
and strategic assessment tools. These situations will present significant challenges
for NSW and Australian governments over the coming years and will rely on effective
officer to officer relationships to ensure common understanding of processes,
assessment of significance and offset requirements.
The operating principles and recommendations arising from this review will ensure
that critical infrastructure and major land releases will be efficiently processed while
achieving national conservation, environment protection and planning objectives.
General Findings
The Australian and NSW governments established a bilateral agreement in January
2007 to minimise duplication of environmental impact assessment processes.
Although most proposals in NSW are assessed under the existing bilateral
agreement, in a small number of situations it is sensible for a separate
Commonwealth assessment process to occur.
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In NSW, the number of proposals requiring dual assessment and approval are limited
in number relative to the total number of proposals and critical infrastructure projects.
Of the 419 major development proposals (Part 3A of the EP&A Act) received by DoP
between January 2007 and June 2009, 130, or 31% were also referred to DEWHA
because of possible impacts on matters of NES. Of these 130 referred matters, 17
proposals (13%) were declared ‘controlled actions’ requiring DEWHA approval (i.e.
4% of all the 419 major development proposals).
As well as these, a small number of other Part 3A matters were not assessed under
the assessment bilateral; a few of the many thousands of proposals considered by
councils under Part 4 of the EP&A Act; and a small number of Part 5 proposals
assessed by NSW agencies may also require dual assessment. Overall, less than
5% of all planning and development activity requires assessment by both the
Australian and NSW governments.
The two sectors most often requiring dual assessment are commercial and
residential developments, especially when they require rezoning of greenfield sites
and mining proposals.
The EPBC Act identifies specific triggers for matters of NES. Threatened species and
communities account for more than half the referrals of NSW planning and
development proposals.
Four areas of operational activity were assessed with a view to identifying
opportunities to improve the timeliness of decisions and the value of environmental
outcomes:

Landuse planning – including Part 3 of the EP&A Act, biodiversity certification
of planning instruments under the TSC Act and EPBC Act strategic assessment

Development control – including Parts 3A, 4 and 5 assessments of the EP&A
Act and Chapter 4 of the EPBC Act, including those under the current Bilateral
Agreement

Listing of threatened species, ecological communities and key threatening
processes

Threatened species licensing under the TSC Act (Sections 91 and 95).
Opportunities for improvement
Specific principles and recommendations to streamline processes and improve
conservation outcomes have been identified under four functional headings:
1.
2.
3.
4.
Communication and coordination - to achieve sensible integration and
alignment of jurisdictional legislative requirements, assessment and decisionmaking processes;
Offsets - development and implementation of a common approach to offsets;
Strategic planning - development and implementation of an agreed approach
to strategic assessments and biodiversity certification;
Listing - development and implementation of consistent threatened species
and community listing processes.
Application of the operating principles and implementation of the recommendations
for action proposed will support and enhance the credibility of the regulatory
framework through:
 timely referrals and assessments;
 increased efficiency in public infrastructure spending;
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

reduced costs to proponents; and
improved biodiversity conservation and environment protection outcomes.
Communication and Coordination
Principle 1:
Routine early notification of proposals potentially requiring
referral is needed between agencies and informal early input from
DEWHA on matters of NES is essential to inform judgments on
process options and the optimal timing of formal referral with a view to
aligning and streamlining assessment, approval and post approval
functions.
The coordination of NSW and Commonwealth legislation in particular with regard to
the statutory EPBC notifications process can be improved by making simple changes
which can be quickly and easily established within and between agencies. Ensuring
that DoP Director General requirements clearly specify action to address matters of
NES will minimise unnecessary duplication of processes and streamline decision
making.
Recommendation 1: Where NES matters may be impacted and referral to DEWHA
for a controlled action determination is likely to be required, consent and determining
authorities should, through clear and simple administrative processes, ensure that
there is DEWHA input:

in the development of policies and methodologies for assessment;

in the pre-planning phase when decisions are made on assessment options for
dealing with new proposals;

in the drafting of Director General’s requirements for environmental impact
statements (where required); and

in the drafting of consent and approval conditions.
Recommendation 2: Clear and simple administrative procedures should include:
 email and website connections designed and managed to optimise
communication; and
 designated and resourced contact points and coordinators to make use of
specialist knowledge and ensure timely and efficient processing of proposals.
Recommendation 3: All agencies should take action to:
 finalise and implement the administrative procedures, to give effect to the
assessment bilateral (see Appendix 8a);
 ensure that the DoP Director General requirements clearly require consideration
of matters of NES; and
 ensure that all NSW assessment reports address DEWHA NES requirements.
Recommendation 4: DEWHA criteria for addressing matters of NES should be
clearly explained and NSW agencies should collaborate with DEWHA to agree and
apply a consistent and transparent approach to the determination of significance in
the assessment of impacts on matters of NES.
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Offsets
Principle 2:
Agencies should collaborate to align Australian and NSW government
policies on offsetting. In matters where the EPBC Act applies,
offsetting proposals should be consistent with Australian
Government offsetting policy and developed in consultation with
DEWHA.
The Australian and NSW governments have each developed policy principles guiding
the use of environmental offsets in development proposals. Differences between
them relate to:
 EPBC legislative requirements for project-specific offsets to specifically
benefit the matter(s) of NES which triggered DEWHA involvement, rather
than landscape-wide conservation objectives on which NSW agencies may
be focussed;
 DEWHA willingness in limited circumstances to accept indirect offsets such
as commitments to research, while NSW agencies only entertain offsets
which deliver direct conservation benefits such as habitat protection;
 differences in approach to the timing and security guarantees associated with
the delivery of offsets.
While closer alignment of policy principles is clearly desirable, an agreed
interpretation and application of the existing principles will deliver significant
improvements in timely decision making and sound conservation outcomes.
Recommendation 5: NSW agencies should work with DEWHA to develop robust
operational guidelines, by 30 September 2009, so that principles governing policies
on offsets and their application are interpreted and applied on an agreed basis with
inconsistencies resolved at the first review opportunity.
Recommendation 6: Specific mining, residential and infrastructure projects should
be used as pilots to reality test the operational guidelines at the earliest opportunity.
Recommendation 7: NSW DECC should work with DEWHA, to ensure that the
BioBanking methodology addresses matters of NES including World Heritage,
Ramsar wetlands and migratory species.
Recommendation 8: The Hawke Review of the EPBC Act should be asked to
consider the possibility of having offsets included as part of the determination of
whether a proposal is a controlled action.
Strategic Planning
Principle 3:
Final Report
24 July 2009
To deliver clarity and certainty for the development and
conservation communities, agencies should take a strategic
approach to planning for biodiversity and development through the
tools of strategic assessments, conservation agreements and
biodiversity certification.
Page 8 of 109
There are benefits for both timely processing of proposals and the value of
conservation outcomes in taking a strategic approach to planning and environmental
impact assessment. Biodiversity certification of large sites has the effect of
streamlining site-specific threatened species assessment and makes use of tools
such as offsetting and financial levies to achieve optimum conservation and
environment protection outcomes for the regional landscape.
Recommendation 9: Undertake strategic assessments, covering Western Sydney
Growth Centres, the management of the Grey-headed Flying-fox and a suitable state
significant site/concept plan. The projects should all be completed by 30 June 2010
and inform priorities and protocols for future assessments.
Recommendation 10: NSW DECC should develop the biodiversity certification
methodology in cooperation with DoP and DEWHA, to ensure social and economic
considerations as well as matters of NES including World Heritage, Ramsar wetlands
and migratory species are considered.
Listing
Principle 4:
A nationally consistent approach to scientific assessment and
listing processes would enhance public credibility and make them
more efficient in delivering timely decisions and optimal conservation
outcomes.
Listing criteria and categories applied by the Australian and NSW governments are
both based on international IUCN standards. However, some legislative
requirements, and differences in the scientific approaches of the NSW Scientific
Committee and the Threatened Species Scientific Committee lead to significant
differences in listing focus, particularly in relation to ecological communities. Given
that possible impacts on threatened species and communities trigger the majority of
NSW EPBC Act referrals, these issues need to be addressed. While significant
reform of listings processes requires legislative change, a stronger commitment to
information sharing and coordination between jurisdictions would improve the
currency, consistency and accuracy of listings and deliver improve environmental
outcomes.
Recommendation 11: The Hawke Review of the EPBC Act should be asked to
consider the benefits of an integrated national approach to threatened species and
ecological communities listing including:

nationally agreed categories and definitions;

an explicit role for government in determining strategic priorities for
assessment, in addition to the existing public nominations process;

an appropriate division of listing responsibilities between jurisdictions; and

maintenance of robust and independent scientific assessments.
Recommendation 12: Australian Government and NSW Scientific Committees
should meet within three months to accelerate efforts to address key differences in
administrative and policy approaches, including: the definition of ecological
communities, joint explanatory statements about listings and joint conservation
advice on species and communities.
Recommendation 13: Australian Government and NSW Scientific Committees
should consider developing routine, ongoing information sharing protocols to avoid
duplication of effort and improve consistency and timeliness of decision-making.
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Implementation
It will be crucial to success that each agency is able to embed the proposed
principles and processes in all relevant functional areas. Agencies will need to utilise
teams at all levels, including at the highest Executive level, to resolve issues, monitor
progress and overcome barriers to collaboration. Executive representatives of each
agency should be tasked to drive implementation, resolve outstanding policy issues
and guide the development of innovative approaches across jurisdictions.
Recommendation 14: CEOs should appoint Executive level contacts in each
agency to drive implementation of the recommendations of this report. The Executive
contacts should function as an interagency steering committee tasked to develop an
implementation plan identifying specific tasks, timelines and officers accountable for
delivery. The Executive steering committee should explicitly address the need for
early and effective communication to address significant issues such as:
 differences in emphasis between jurisdictions in the application of offset policies;
and
 the challenges of implementing the findings of the report in situations, such as the
Western Sydney Growth Centres, where work on finalising development approval
conditions is well advanced.
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1.0 Introduction and Background to the Review
The review was initiated in order to clarify and improve the operational interaction
between the Australian Government Department of the Environment, Water Heritage
and the Arts (DEWHA) and NSW environment and planning agencies with statutory
responsibilities under the Threatened Species Conservation Act 1995 (NSW) (TSC
Act), the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act), and
the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth)
(EPBC Act).
This was in part due to concerns that aspects of the interaction between the agencies
at the operational level have the potential to unnecessarily delay critical infrastructure
and major land releases in NSW without delivering optimal conservation and
environment protection outcomes.
Specific concerns included:

the need for more effective coordination where there is jurisdictional overlap
that can result in duplication in assessment and decision making processes
relating to impacts on matters of (NES)

the need to minimise duplication and inconsistencies in definitions, criteria, and
procedures for the listing of threatened species, ecological communities and to
a lesser extent key threatening processes.
Unaddressed, these issues have the potential to result in:
 erosion of the credibility of environmental regulations
 delays in worthwhile projects
 inefficiencies in public spending
 unnecessary additional costs to proponents
 less effective biodiversity impact mitigation or offset measures.
1.1 Background
The EPBC Act was initially enacted in 1999 and came into force on 16 July 2000 with
the following objects:
(a) to provide for the protection of the environment, especially those aspects of the
environment that are matters of national environmental significance; and
(b) to promote ecologically sustainable development through the conservation and
ecologically sustainable use of natural resources; and
(c) to promote the conservation of biodiversity; and
(ca) to provide for the protection and conservation of heritage; and
(d) to promote a co-operative approach to the protection and management of the
environment involving governments, the community, land-holders and
indigenous peoples; and
(e) to assist in the co-operative implementation of Australia’s international
environmental responsibilities; and
(f) to recognise the role of indigenous people in the conservation and ecologically
sustainable use of Australia’s biodiversity; and
(g) to promote the use of indigenous peoples’ knowledge of biodiversity with the
involvement of, and in co-operation with, the owners of the knowledge.
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It has been variously amended up to and including 22 November 2008 (see
http://www.environment.gov.au/epbc/about/history.html), notably amendments to
streamline assessment processes and to strengthen strategic assessment provisions
of the Act.
The TSC Act was initially enacted in 1995 with the following objects:
(a) to conserve biological diversity and promote ecologically sustainable
development, and
(b) to prevent the extinction and promote the recovery of threatened species,
populations and ecological communities, and
(c) to protect the critical habitat of those threatened species, populations and
ecological communities that are endangered, and
(d) to eliminate or manage certain processes that threaten the survival or
evolutionary development of threatened species, populations and ecological
communities, and
(e) to ensure that the impact of any action affecting threatened species,
populations and ecological communities is properly assessed, and
(f) to encourage the conservation of threatened species, populations and
ecological communities by the adoption of measures involving co-operative
management.
A number of amendments have been made up until 2006 (see
http://www.austlii.edu.au/au/legis/nsw/consol_act/tsca1995323/notes.html). Perhaps
the most significant amendment to this legislation has been the establishment of a
biodiversity banking and offsets scheme (‘the BioBanking scheme’), which is a
market-based scheme, providing a streamlined biodiversity assessment process for
development proposals, an offsetting scheme, as well as an opportunity for rural
landowners to generate income by managing land for conservation.
The EP&A Act was initially enacted in 1979 with the following objects:
(a) to encourage:
(i)
the proper management, development and conservation of natural and
artificial resources, including agricultural land, natural areas, forests,
minerals, water, cities, towns and villages for the purpose of promoting the
social and economic welfare of the community and a better environment
(ii) the promotion and co-ordination of the orderly and economic use and
development of land
(iii) the protection, provision and co-ordination of communication and utility
services
(iv) the provision of land for public purposes
(v) the provision and co-ordination of community services and facilities
(vi) the protection of the environment, including the protection and
conservation of native animals and plants, including threatened species,
populations and ecological communities, and their habitats, and
(vii) ecologically sustainable development
(viii) the provision and maintenance of affordable housing
(b) to promote the sharing of the responsibility for environmental planning between
the different levels of government in the State
(c) to provide increased opportunity for public involvement and participation in
environmental planning and assessment.
Numerous amendments have been made until as recently as May 2009 (see
http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/notes.html).
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An independent review of the EPBC Act is currently being undertaken in accordance
with section 522A of the EPBC Act, which requires that a review take place before
16 July 2010, looking at the operation of the Act and the extent to which it is
achieving its objects. The review is being conducted according to the terms of
reference in Appendix 2, and is being undertaken by Dr Allan Hawke, supported by a
panel of experts. It is due to be completed by 31 October 2009.
A Senate Inquiry into the operation of the EPBC Act has recently completed its first
report in accordance with the terms of reference which are provided in Appendix 3.
The recommendations of this inquiry are provided in Appendix 4. The
recommendations of the first report of the Senate Inquiry are being considered as
part of the Hawke Review.
1.2 Purpose and Scope of this Operational Review
This review has been initiated to propose operating principles to improve coordination and minimise duplication between State agencies and DEWHA, in relation
to:
1.
operation of the referral process by which planning and development proposals
under consideration by NSW agencies must be referred to DEWHA if they are
considered likely to have a significant impact on matters of national
environmental significance (NES) as defined in the EPBC Act
2.
operation of the strategic approvals provisions of the EPBC Act which provide
an opportunity to take a wider and more strategic view of proposals rather than
simply focussing narrowly on a single site or species triggering a referral
3.
operation of the assessment and approval bilateral provisions including the
existing bilateral agreement covering assessments and the potential to explore
the development of a bilateral agreement relating to approvals
4.
operation of the listing process relating to threatened species, ecological
communities and threatening processes.
The review was tasked to recommend:
(a) actions to improve co-ordination between TSC Act, EP&A Act and EPBC Act
processes including the timing of referrals by proponents
(b) actions to improve the capacity of NSW decision making to accommodate the
full range of EPBC Act concerns, including listed species, endangered
ecological communities, Ramsar, World Heritage and National Heritage
(c) actions to provide better communication between State and Federal agencies
including routine notification where one body is making a regulatory decision
that may affect an existing or potential State or Commonwealth Government
process or approval
(d) action to align current approaches at both a Commonwealth and State level to
both impact assessment (significance questions) and offsetting
(e) opportunities and special arrangements for the coordinated consideration of
major proposals funded through the Commonwealth’s infrastructure stimulus
package to ensure effective environment protection/conservation but also
streamlined approvals decisions
(f) approaches and mechanisms whereby strategic approvals may be assessed
and implemented
(g) steps required and likely timeframes for these strategic assessments including
options to streamline timeframes
(h) operational principles to streamline approvals (i.e. early consultation on major
projects, defining data needs, etc.)
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(i)
action to consider the application of NSW methodologies such as BioBanking,
biocertification or biodiversity offsets to meet Commonwealth requirements
along with anticipated timeframes
(j)
other opportunities that may exist for operating principles or approval bilateral in
NSW (e.g. licensing and management of flying foxes or the approval processes
around private native forestry)
(k) action to address inconsistencies in the way communities are described at
national and state levels, including specific examples, and to consider the
impact of these inconsistencies on the planning process
(l)
the possible publication of joint listing advice between Commonwealth and
NSW that explains the respective decisions of Commonwealth and NSW
Scientific Committees
(m) actions to better harmonise existing positives (such as offsetting) as well as
options for developing new joint policies to guide decision-making in
environmental assessment and approval
(n) matters which should be referred to the Hawke Review (the ten year statutory
review being conducted into the operation of the EPBC Act).
The Terms of Reference for the review are provided in full as Appendix 5 of this
report.
1.3 Review Team and Approach
The review team has included representatives of the NSW Department of Planning
(DoP), NSW Department of Environment and Climate Change (DECC), and the
Australian Government Department of the Environment, Water, Heritage and the Arts
(DEWHA). Further details on the composition of the review team are provided at
Appendix 6.
The review convenor, Mr Brian Gilligan, facilitated a series of agency workshops.
Team members contributed agency perspectives and insights as a basis for
generating shared concepts for development of operating principles to improve the
efficiency of assessment and approval processes and enhance conservation and
environment protection outcomes.
A progress report was provided to the agency CEOs at the end of May outlining the
issues being considered along with preliminary thinking on possible operating
principles and recommendations for action.
Assistance with coordination, secretariat support and report drafting was provided by
DECC.
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2.0 Current Operations
In NSW each year there are many developments which are assessed under Part 3A,
Part 4 or Part 5 of the Environmental Planning and Assessment Act 1979. Most of
these are small residential or commercial developments assessed by local councils
and, due to their small scale and low impact, are not usually referred to DEWHA.
The more likely developments to be referred, and to be declared controlled actions,
are the larger, higher impact developments such as large residential/commercial
developments, mines and transport/infrastructure projects. These are usually
assessed under Part 3A of the EP&A Act. There are also a number of developments
which do not require development consent, but which may require a permit or licence
from a government agency. These are assessed under Part 5 of the EP&A Act and
are usually of a lesser scale and impact, and thus less likely to be referred and
declared controlled actions.
Once projects are screened for impacts on matters on NES, 10 to 12 projects each
year are deemed to require approval under the EPBC Act. Of these, most are eligible
to be assessed under the bilateral agreement which ensures that a single
environmental assessment process can be undertaken to meet both NSW and
Commonwealth requirements.
In the (almost) nine years since the EPBC Act commenced, a total of 559 NSW
projects have been referred for consideration under the EPBC Act. In recent years
this has amounted to around 50 to 60 referrals per year. Of these, around 20%, or
113 in total have required EPBC Act approval – an average of around a dozen a
year. Since the bilateral agreement was established in January 2007, less than 5% of
all planning and development activity in NSW has required assessment by both the
Australian and NSW governments. With many thousands of development
applications received each year in NSW, it is evident that whilst the EPBC Act plays
an important role in regulating some major developments, a significant amount of
development activity that occurs within the State does not require separate
assessment to meet the requirements of the EPBC Act.
Of the proposals received in NSW, the sectors most often requiring EPBC Act
approval are residential and commercial development, mining, natural resource
management and land transport. Together, these sectors account for almost two
thirds, or 62% of EPBC Act referrals and approvals. The threatened species and
ecological communities provision is overwhelmingly the most common trigger for
EPBC involvement, being of concern in more than half (57%) of all referrals. This
suggests that significant gains could be made in aligning the threatened species
requirements between the jurisdictions. Migratory species, Ramsar wetlands and
World Heritage trigger around a third (32%) of all referrals.
Further statistics on the application of the EPBC Act to projects within NSW are
available at Appendix 7.
Existing processes in the Australian and NSW agencies relevant to this review are
summarised with a focus on the timing and nature of interactions between the
jurisdictions and proponents. More detailed information and flow charts describing
assessment and approval processes are provided in Appendix 8 (a-k).
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Four strands of operational activity are summarised:
2.1
2.2
2.3
2.4
Landuse planning – including Part 3 of the EP&A Act, biodiversity certification
and EPBC Act strategic assessment
Development control – including Parts 3A, 4 and 5 of the EP&A Act and
Chapter 4 of the EPBC Act assessments accredited under the current bilateral
agreement
Listing of threatened species, ecological communities and key threatening
processes
Threatened species licensing under the TSC Act (Sections 91 and 95).
2.1 Landuse Planning
Local Environmental Plans (LEPs) and State Environmental Planning Policies
(SEPPs) are prepared under Part 3 of the EP&A Act. They impose standards and
development controls, reserve land for open space, schools, transport or other public
purposes, control advertising and protect environmental or conservation areas and
heritage.
LEPs and SEPPs generally comprise a written document and map(s).
LEPs can apply to a whole or part of a local government area. They are prepared by
Council and endorsed or made by the NSW Minister for Planning.
SEPPs are prepared to address matters of environmental planning significance for
the State. SEPPs can serve a range of purposes, including regulating a particular
land use, or applying new planning controls State-wide, or for part of the State, or
regulating a particular development. SEPPs are prepared by the Department of
Planning and the Minister for Planning recommends to the Governor of NSW that a
SEPP be made.
2.1.1
Relationship to TSC Act and EPBC Act
The importance of LEPS and SEPPs to biodiversity conservation is recognised by
the TSC Act. Planning instruments (LEPs and SEPPs) provide the opportunity to
address many issues, including biodiversity conservation, early in the planning
process. Planning instruments, coupled with other conservation mechanisms, such
as offsetting strategies or the purchase of land, can provide appropriate protection for
areas of high conservation value.
The TSC Act was amended in 2004 to allow for the biodiversity certification
(biocertification) of LEPs and SEPPs that result in the maintenance or improvement
of biodiversity. The effect of biocertification is to turn off the need for further sitebased threatened species and ecological community assessment under NSW
legislation, thus streamlining the development control process while still providing for
optimal biodiversity conservation.
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In a similar manner, the EPBC Act was amended in 2007 to enable strategic
approvals of “policies, plans or programs” to effectively turn off the need for further
site-based assessment of matters of NES (including threatened species and
ecological communities; migratory species; National Heritage Sites, World Heritage
Sites and Ramsar wetlands of international importance). LEPs and SEPPs provide
an obvious platform for strategic approvals under the EPBC Act. If a LEP or SEPP is
endorsed, then approval can be given so that subsequent referral of individual
developments is no longer necessary.
Thus both the TSC Act and the EPBC Act contain mechanisms that allow for
biodiversity conservation issues to be dealt with at the strategic landuse planning
stage, and so streamline or obviate the need for separate assessment processes.
The opportunity is there for concurrent biocertification and strategic approval
processes to deliver on strategic biodiversity conservation outcomes and remove the
uncertainty and complexity of development processes.
Where biocertification under the TSC Act and strategic approval under the EPBC Act
has not been secured, normal site by site assessment will occur.
2.1.2
Operational questions
Both biocertification (NSW) and strategic approvals (Australian Government) are
relatively recent legislative processes and, in the case of biocertification, are likely to
undergo further legislative refinement. Questions relating to these processes include:






Where to apply them? The most obvious candidates are areas of high growth
and known EPBC Act values. Other options could be industry-based.
Resourcing? Value added must be worth the resource input necessary to
undertake strategic assessment or biocertification rather than site-by-site
assessment.
Defining real benefits? The benefits of pursuing biocertification and strategic
approval need to include enhanced certainty for conservation and development
outcomes for the exercise to be worthwhile.
How to assess them? What methodologies are appropriate to assess proposals
for both biocertification and strategic approvals? Can a single agreed
assessment methodology adequately serve the two decision-making
processes, particularly given that matters of NES involved may extend beyond
species to involve Ramsar sites or heritage values?
What are the appropriate mechanisms to secure biodiversity values through the
strategic landuse planning process?
How to best align processes so that issues can be addressed early and without
duplication (e.g. one exhibition process)? What flexibility and scope is there in
the two systems to allow this?
Integration of NSW landuse plan-making with NSW Biodiversity Certification and
Australian Government strategic assessment processes are summarised in Figure 1:
Plan making under EP&A and EPBC Acts on page 17.
Final Report
24 July 2009
Page 17 of 109
Biodiversity Certification TSC Act
DECC
Plan Making
DoP or Council (SEPP or LEP)
EPBC Strategic Assessment
DEWHA
DoP or Council proposes to prepare an environmental planning
instrument
1. Decision to proceed
Minister enters into an agreement to undertake a strategic assessment
Consultation with relevant public authorities.
Consultation with DECC and DEWHA
Terms of Reference (ToR) are prepared for a report on the impacts
relating to the agreement
Note: may require exhibition of ToR
2. Decision to
commence strategic
assessment
DECC input and when available methodology for
biodiversity studies
Relevant studies undertaken including biodiversity study.
DECC prepares draft biocertification report if plan meets
maintain or improve outcome
Biocertification proposal prepared for consideration by DECC
Input into planning
process from DEWHA
and DECC
Studies
Plan preparation
3. Exhibition of
proposal should occur
concurrently
(Aligning exhibition will
require significant
coordination)
Draft instrument prepared
NES Impact Report prepared for consideration by DEWHA
DECC prepares notice of proposed biodiversity certification
(including consideration of matters prescribed by TSC Act)
Final Report
24 July 2009
DEWHA consider NES Impact Report and provide input into
draft plan
Draft planning instrument finalised for exhibition
Biodiversity study and notice of proposed biodiversity
certification exhibited
Draft planning instrument exhibited
Submissions invited
Submissions considered
Biocertification report finalised
Environment Planning instrument finalised
NES Impact Report open for public comment for at least 28 days
Minister may recommend modifying the policy, plan or program
DECC may recommend amendments to planning instrument
Minister for Environment and Climate Change certifies
instrument (may include conditions)
4. Decision on outcome
DEWHA input into plan and study preparation
Minister may endorse policy, plan or program if satisfied.
Environmental planning instrument made
Notice of the certification given to Director General of DoP
on DECC website and relevant councils
Page 18 of 109
Minister may approve actions taken in accordance with the
plan (may include conditions).
2.2 Development Control
All development proposals in NSW must be assessed to ensure they comply with
relevant planning controls and, according to nature and scale, that they are
environmentally and socially sustainable. State, regional and local plans and policies
indicate what level of assessment is required, and who is responsible for
assessment: council, an accredited private professional or the Minister for Planning
(the Department assesses proposals for the Minister).
In NSW, the Environmental Planning and Assessment Act 1979 is the principal law
overseeing the assessment and determination of development proposals. Proposals
are considered under different parts of the Act, including:

Part 3A - for major projects of regional or State significance which require an
approval from the Minister for Planning.

Part 4 - for other proposals which require consent, usually by the local council
but by the Minister in limited circumstances. Under Part 4, minor or routine
development may also be complying development approved by accredited
certifiers.

Part 5 - for proposals which do not fall under Part 4 or Part 3A. These are often
infrastructure proposals approved by local councils or State agencies which are
undertaking them.

In addition, minor proposals can be exempt from development approval, while
other proposals are prohibited under various planning instruments.
2.2.1 Part 3A Projects
The Minister for Planning determines applications for major infrastructure or other
major projects of State or regional environmental planning significance under Part 3A
of the Act. This section of the Act, which commenced in August 2005, provides a
single assessment process specifically designed for major projects and improved
transparency and community consultation.
The State Environmental Planning Policy (Major Projects) 2005 and declarations
made under S75B of the Act define which projects come to the Minister.
Relationship to TSC Act and EPBC Act
Part 3A projects are exempted from the need to obtain a license under the TSC Act.
However, DECC are consulted on threatened species aspects when Director
General’s requirements are being prepared, during the EA adequacy test when
appropriate, and in developing offset arrangements and conditions of approval.
When a Part 3A project is also a controlled action under the EPBC Act, DEWHA
have input to DGRs and at the EA adequacy test stage. DEWHA also provide
comment on the EPBC component of the DG’s Assessment Report and are
consulted in development of conditions of approval.
Final Report
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Page 19 of 109
2.2.2 Part 4 Development
Most development proposals in NSW are considered by local councils or accredited
certifiers under Part 4 of the Act. In some limited circumstances, the Minister for
Planning is the consent authority for development assessed under Part 4 of the Act.
Local development
For most types of development proposals, a development application (DA) will need
to be lodged with the local council. Once a DA is lodged, the council will notify the
neighbours and may advertise the development application in the local or regional
newspapers. The council will assess the impacts of the proposed development taking
into consideration any comments received. If there is opposition to the proposal, the
council may appoint a panel to provide independent advice. If the application is
successful, the council will grant development consent, usually subject to conditions.
Complying development
If what is proposed is common or routine, it may be classified as 'complying
development' by a local, regional or State planning instrument. Its impact on the
environment must be predictable and minor. To carry out the development, a
complying development certificate from an accredited certifier or the local council
must be obtained. If the application is successful, the council or certifier will issue a
certificate usually subject to conditions.
Development that requires the Minister for Planning's consent
While most proposals for the Minister's consideration are handled under Part 3A (see
above), the Minister continues to be the consent authority under Part 4 of the Act in
some limited circumstances. The assessment process under Part 4 when the
Minister is the consent authority is the same as when the council is the consent
authority.
There are additional provisions which may apply when a development requires
consent under Part 4:
Integrated development
Some proposals not only require development consent from the council or the
Minister but also a permit or license from a State government agency. In these
cases, the council or the Department will refer the application to the necessary
agency so that there is an integrated assessment of the proposal.
Concurrence required for development
Certain proposals might not require a license but still require the agreement of a
State agency before development can be carried out. If so, the council or the
Department will refer the development application to the relevant State agency for its
agreement.
Final Report
24 July 2009
Page 20 of 109
Designated development
Development classed as 'designated' requires particular scrutiny because of its
nature or potential environmental impacts. Designated development includes
development that has a high potential to have adverse impacts because of their scale
or nature or because of their location near sensitive environmental areas, such as
wetlands. These 'designated developments' are listed in Schedule 3 of the
Environmental Planning and Assessment Regulation 2000 or in planning instruments
such as SEPP 14 - Coastal Wetlands (1985).
For designated development:

applicants need to submit an environmental impact statement (EIS) with the
development application. The EIS will provide a comprehensive assessment of
the impacts of the proposal

the application will be advertised for 30 days so that the public can comment

if someone objects to the proposal, in writing, and the application is approved,
that person can appeal against the decision to the NSW Land and Environment
Court.
Relationship to TSC Act and EPBC Act
If a Part 4 development is likely to have a significant impact on threatened species
then an SIS will be required to be submitted and exhibited with the development
application. The concurrence of the DECC is required before development consent
can be granted.
When a Part 4 development is also a controlled action under the EPBC Act it may be
decided to assess the development under the bilateral agreement. The points of
contact with DEWHA in Part 4 bilateral assessments are harder to define than Part
3A projects, due to the variations in Part 4 processes according to scale of
development and whether an EIS or a SEE are required, and because councils
manage the assessment process rather than DoP. The process for interaction will be
finalised in the administrative procedures (see Appendix 8a) being developed by
NSW and DEWHA.
2.2.3
Part 5 Development
Part 5 deals with proposals which do not fall under Part 4 or Part 3A. These are often
infrastructure proposals, such as roads, water supply dams and sewage treatment
plants, approved by local councils or the State agencies. This sort of development
also is known as 'development without consent'.
Development may be classified as 'development without consent' in a local, regional
or State planning instrument such as SEPP 4 - Development without Consent and
Miscellaneous Exempt and Complying Development (1981). Although development
consent may not be required, the environmental impacts of the proposal might still
need to be assessed. For instance,

If the proposal requires an approval (license, permit or allocation of funding)
from a State government agency, CMA or council, that authority will review the
proposal to determine its potential environmental impact. If they decide that it is
likely to have a significant environmental impact, an environmental impact
statement (EIS) must be prepared, exhibited for comment and assessed before
they can consider granting approval.
Final Report
24 July 2009
Page 21 of 109

If the proposal does not need development consent or require an approval from
a government authority, then ordinarily the activity can proceed without any
environmental assessment. However, if the activity is likely to affect threatened
species, an assessment may need to be undertaken under the TSC Act.
If an activity proposed by a State government authority is likely to have significant
environmental impacts, an environmental assessment must be prepared, exhibited
for comment and assessed under Part 3A of the Act (see above) and the Minister for
Planning will need to determine the proposal.
2.2.4
Exempt development
A proposed development is 'exempt development' if it will have only a minimal impact
on the local environment (for example small fences, barbecues and pergolas) and is
classified as exempt development in a local, regional or State planning instrument.
Councils may also list exempt development in a development control plan (DCP).
Development consent is not required for exempt development as long as you satisfy
the requirements in the planning instrument.
2.2.5
Prohibited development
The council's local plan lists the types of development that are prohibited in each land
use zone. If the planning provisions do not allow a certain kind of development, the
proponent will need to discuss with council whether they would consider changing
the zoning on the site to permit the development. If the prohibited zoning provisions
are not changed, the local council cannot approve development on the site.
In addition, regional or State environmental plans may contain provisions which may
prohibit development on the site. For example, State Environmental Planning Policy
(Mining, Petroleum Production and Extractive Industries) 2007 prohibits mining in
certain areas.
2.2.6 Relationship to TSC Act and EPBC Act
If the activity is likely to affect threatened species, an assessment may need to be
undertaken under the TSC Act. If a Part 5 project being undertaken by a public
authority that is also the determining authority is likely to have a significant impact on
threatened species, then the project will become a Part 3A rather than remain in Part
5.
When a Part 5 development is also a controlled action under the EPBC Act it may be
decided to assess the development under the bilateral agreement. The points of
contact with DEWHA in Part 5 bilateral assessments are harder to define due to the
other agencies managing the assessment process rather than DoP. The process for
interaction will be finalised in the Administrative Procedures being developed by
NSW and DEWHA.
Integration of NSW Part 3A, 4 and 5 development assessment processes are
summarised in Figure 2: Assessments under the EP&A Act on page 23.
Final Report
24 July 2009
Page 22 of 109
2.2.7 Approval Bilateral Agreement
Under Chapter 3 of the EPBC Act, the Federal Environment Minister has the power
to enter into bilateral agreements declaring that actions do not require approval under
the EPBC Act, subject to a range of considerations. Such an agreement is often
referred to as an “approvals bilateral”. There is only one such agreement currently in
place, relating to the Sydney Opera House, which was signed on 22 December 2005.
While the prospect of a broad approvals bilateral agreement covering one or a
number of NSW assessment processes has intuitive appeal, the EPBC Act provides
a range of flexible options that deliver comparable outcomes. Strategic assessment
and approvals, discussed elsewhere in this report, are currently being pursued in a
number of jurisdictions to deal with biodiversity and conservation issues at a broader
landscape level, while simultaneously removing the requirement of project-by-project
assessments. Likewise, conservation agreements provide the ability to deal with
multi-project landscapes through a single process.
It is the view of the review team that the principles and recommendations contained
within this report should be implemented before the accreditation of NSW
arrangements or processes, under an approvals bilateral, is pursued.
Final Report
24 July 2009
Page 23 of 109
PART 3A ASSESSMENTS
PART 4 ASSESSMENTS
DESIGNATED
DEVELOPMENT
ADVERTISED
DEVELOPMENT
PART 5 ASSESSMENTS
COMPLYING DEVELOPMENT
Likely environmental
impact assessed
Pre-application
- Project formulation
 Provision of relevant guidelines / policies
 Notify proponent of EPBC Act referrals
Application
(s73(4) EP&A Act)
 Key issues identified
 NES matters identified
DGRs Issued
(s75F EP&A Act
 EA Requirements for all key issues incl. NES
matters
EA Preparation
(s75H EP&A Act)
 Proponent address all key issues in EA
 Consultation with stakeholder groups, NGOs, Govt
agencies
 Assessment of NES in EA
EA Adequacy Test
(s75H EP&A Act)
 Ensure key issues addressed adequately (incl. NES
matters)
 EA on public exhibition
 DEWHA comment on EA
Submissions
 Public /agencysubmissions on EA
Significant impact
PART 3A
Public Exhibition
Not significant impact
Public Exhibition
(s75H(3)(4) EP&A Act)
Response to Submissions
/ Preferred Project Report
 Proponent responds to public / agency
Assessment &
Determination
Preparation of Environmental
Assessment
S111 EP&A Act
Assessment
(s75G EP&A Act
 Assessment of all key issues
Assessment of NES matters
Determination / Conditions
of Approval
(s75J EP&A Act
 Assessment of all key issues
 Assessment of NES matters (Draft TS Guidelines,
Biobanking, Offsetting policy)
Application
Application
Director General’s
Requirements
DGRs Issued
For SIS if significant effect
on TS
EIS
Application
SIS if significant effect
on TS
Review of Environmental
Factors (REF)
Public Exhibition
Advertised
Public Exhibition
Submissions
Submissions
Submissions
Evaluation
Evaluation
Evaluation
Determination
Determination
Post Approval
Post Approval
submissions and prepares PPR (if required)
Post Approval
Certification
Description: Major projects (e.g. State significant major infrastructure, mines, commercial developments, manufacturing) determined by
Minister for Planning / PAC / DG Planning
Description: Development applications (e.g. local commercial, industrial, residential development) determined (usually) by Councils / JRPP and in some cases
the Minister for Planning.
Other Legislation:
Commonwealth

Environment Protection and Biodiversity Conservation Act 1999 – controlled actions
Other Legislation:
Commonwealth

Environment Protection and Biodiversity Conservation Act 1999 – controlled actions
NSW

Part 3A projects are exempted from the need to obtain many of the authorisations required under other legislation (s.75U).

where authorisations or licences are still required (such as environment protection licences), s.75V ensures that they cannot be
refused and must be substantially consistent with the approval. These include:
o
aquaculture permit under section 144 of the Fisheries Management Act 1994,
o
approval under section 15 of the Mine Subsidence Compensation Act 1961,
o
mining lease under the Mining Act 1992,
o
production lease under the Petroleum (Onshore) Act 1991,
o
environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997 (for any of
the purposes referred to in section 43 of that Act),
o
consent under section 138 of the Roads Act 1993,
o
licence under the Pipelines Act 1967.
o
Relevant Assessment Guidelines:
http://rdaguidelines.planning.nsw.gov.au/register.cfm
NSW
Integrated Development Assessment (IDA)

Fisheries Management Act 1994 – s144, s201, s205, s219

Heritage Act 1977 – s58

Mine Subsidence Act 1961 – s15

Mining Act 1992 – s63, s64

National Parks and Wildlife Act 1974 – s90

Petroleum Onshore Act 1991 – s9

Protection of the Environment Operations Act 1997 – s43(a), s47, s55, s43(d), s55, s122

Roads Act 1993 – s138

Rural Fires Act 1993 – s100B

Water Management Act 2000 – ss89, s90 s91
Figure 2: Assessments under the EP&A Act
Final Report
24 July 2009
Concurrences / Referrals

Numerous SEPPs, REPs, LEPs

Numerous Agencies
Threatened Species Development

Threatened Species Conservation Act 1995
Relevant Assessment Guidelines: http://rdaguidelines.planning.nsw.gov.au/register.cfm
Page 24 of 109
Determination
Post Approval
Description: These are often infrastructure proposals, such as roads, water supply dams and sewage treatment
plants, approved by local councils or the State agencies. This sort of development also is known as
'development without consent'. Although development consent may not be required, the environmental impacts
of the proposal might still need to be assessed. For instance,
 If the proposal requires an approval (licence, permit or allocation of funding) from a State government
agency, CMA or council, that authority will review the proposal to determine its potential environmental
impact. If they decide that it is likely to have a significant environmental impact, an environmental impact
statement (EIS) must be prepared, exhibited for comment and assessed before they can consider granting
approval.
 If the proposal does not need development consent or require an approval from a government authority, then
ordinarily the activity can proceed without any environmental assessment. However, if the activity is likely to
affect threatened species, an assessment may need to be undertaken under the Threatened Species
Conservation Act 1995.
IIf an activity proposed by a State government authority is likely to have significant environmental impacts, an
environmental assessment must be prepared, exhibited for comment and assessed under Part 3A of the Act
(see above) and the Minister for Planning will need to determine the proposal.
Other Legislation:
Commonwealth

Environment Protection and Biodiversity Conservation Act 1999 – controlled actions
NSW

Legislation under which the proposal requires an approval (licence, permit or allocation of funding) from
a State government agency, CMA or council.
Relevant Assessment Guidelines:

Is an EIS Required?
http://rdaguidelines.planning.nsw.gov.au/register.cfm
2.3 Listing of Threatened Species, Ecological Communities and Key
Threatening Processes
Commonwealth and NSW legislation provide for the establishment and updating of
lists of threatened species, populations (NSW), ecological communities and key
threatening processes. Items on the lists trigger protection provisions under the
legislation, and provide a basis for making decisions about recovery, conservation
and threat abatement effort.
The NSW and national listing processes are separate, and while the criteria for
listings in both cases are based on IUCN criteria, the differences in the process of
listings and definitions of ecological communities can result in significant variation
between the Commonwealth and NSW lists.
Listing processes in each jurisdiction have been summarised to highlight areas of
overlap and misalignment. Further details including issues and options for list
alignment are provided in Appendix 8i.
2.3.1 Listing Threatened Species, Ecological Communities and Key
Threatening Processes under the EPBC Act
The EPBC Act protects Australia's native species and ecological communities by
providing for:

identification and listing of species and ecological communities as threatened

development of conservation advice and recovery plans for listed species and
ecological communities

development of a register of critical habitat

recognition of key threatening processes

where appropriate, reducing the impacts of these processes through threat
abatement plans.
Threatened species (vulnerable, endangered, and critically endangered) and
ecological communities (endangered and critically endangered) are matters of NES.
When a matter of NES is significantly impacted upon, this triggers protection
provisions under the Act. In addition, conservation advice is developed for all listed
species and ecological communities and a Ministerial decision is made on whether a
recovery plan should be prepared and implemented. The Australian Government
listing process is summarised in Table 1: Timetable of EPBC Act Listing Process for
Each Annual Assessment Cycle – Species, Ecological Communities, Key
Threatening Processes.
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24 July 2009
Page 25 of 109
Table 1: Timetable of EPBC Act Listing Process for Each Annual Assessment
Cycle – Species, Ecological Communities, Key Threatening Processes.
Action
Statutory Timeframes
(business days)
The Minister may determine a conservation theme or themes. Themes
could include, for instance, particular species or groups of species, or
geographic regions.
Public nominations called for – any person may make a nomination
Close of public nominations
All valid nominations referred to the independent Threatened Species
Scientific Committee (TSSC).
by November each year
At least 40
(typically March of the
following year)
Within 30
TSSC provides the Minister with advice about what nominations
should be assessed (The proposed Priority Assessment List – PPAL).
Within 40
The Minister finalises the list of nominations to be assessed (The
Finalised Priority Assessment List – FPAL).
Within 20
Start of assessment period
1st October each year
TSSC invites public (and expert) comment on all the nominations to
be assessed.*
At least 30*
TSSC assesses the nominations in the finalised list and provides its
advice to the Minister, along with draft conservation advice and a
recommendation on whether to have a recovery plan.*
Typically within 12-24
months
The Minister decides whether or not the various nominations should
be accepted for listing.*
- at this time he also approves conservation advice and
decides whether to have a recovery plan*
Recovery plan developed if required*
Within 90 * (unless
extended)
Within 3 years*
Note that a considerable volume of list alignment work proceeds outside this annual public
nomination cycle as resources permit. The key assessment processes are still followed, with
statutory timeframes for some steps – these are indicated by an asterisk (*) above.
2.3.2 Listing Threatened Species, Populations and Ecological Communities
under the TSC Act 1995
The TSC Act establishes an independent Scientific Committee, responsible for
determining which species, populations and ecological communities should to be
listed as critically endangered, endangered, vulnerable or extinct under the TSC Act,
and also to determine key threatening processes.
The process by which species, populations and ecological communities are listed as
‘threatened’ is the foundation of the TSC Act, which requires that listing decisions
are:

made by an independent scientific body (i.e. the Scientific Committee)

scientifically robust and based on the best available scientific information

transparent
Final Report
24 July 2009
Page 26 of 109

completed within a suitable time period that allows for thorough assessment
against appropriate criteria
made on scientific grounds only.

Threatened species, populations and ecological communities are those that are listed
under Schedule 1 and 2 under the TSC Act. The Schedules contain a number of
categories that represent the level of threat a species, population or ecological
community is facing. The NSW listing process is summarised in Figure 2.
Figure 3: Listing Threatened Species, Populations and Ecological Communities
under the NSW TSC Act 1995.
NSW SCIENTIFIC COMMITTEE
PROCESS
Nomination received by Committee
Committee advises Minister of receipt of
nomination
Committee prioritises nominations
Minister may give Committee advice on
prioritisation
Committee accepts or rejects
nomination
Committee notifies Minister and Director
General of any rejected nominations
Committee assesses nomination
and makes preliminary
determination to support or not
support the proposal
At least
30 days
INTERACTION WITH NSW MINISTER
Committee notifies Minster and Director
General of upcoming preliminary
determination
Scientific Committee publishes
notice of its preliminary
determination and invites
submissions
Within 6 months
Committee receives submissions
on preliminary determination
Committee considers submissions
and make proposed final
determination
Committee
determination
makes
Committee advises Minister of proposed final
determination. Minister may refers proposed
final determination back to Scientific
Committee for further consideration
final
Committee notifies the Minister and DECC of
upcoming final determination
Committee publishes notice of its
final determination
If proposal supported schedules
amended by notification in Gazette
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Page 27 of 109
2.4 Threatened Species Licensing Under the TSC Act (Section 91 & 95)
The TSC Act provides for the licensing of actions that are likely to harm or pick a
threatened species, population or ecological community, damage critical habitat or
damage the habitat of a threatened species, population or ecological community.
Extensive exemptions apply, including all actions authorised under the EP&A Act and
routine agricultural activities. The full list of exemptions is provided in Appendix 8j. In
practice, only bush regeneration, weed control activities, erosion control, seed
collection and various wildlife management actions (e.g. management of flying foxes)
require the issue of a licence.
The legislative process is divided into two streams. Where proposals are likely to
have a significant impact, then a Species Impact Statement (SIS) needs to
accompany the application and a public exhibition process is required. Where the
proposal is unlikely to have a significant impact, neither a SIS nor public exhibition
are required and a certificate under Section 95 of the TSC Act is issued to authorise
the action.
The Director General of DECC must make a decision on a Section 91 licence
application within 120 days. This period includes a 28 day public exhibition
requirement for applications that require a SIS. The current bilateral agreement
between Australian and NSW governments covering assessments of matters of NES
recognises the NSW Section 91 licensing process provided a SIS has been
prepared, and associated procedural guidelines under Part B of the bilateral,
agreement including public exhibition.
Given the extent of the exemptions, licensing does not represent a large area of
regulatory activity in NSW. In 2008 only 29 decisions were made on licence
applications. Most of the activities involved related to ecological restoration,
rehabilitation and wildlife management works.
While the terminology of “significant impact” is common to both statutory regimes,
there are material differences in the decision-making criteria that are applied by NSW
and DEWHA to inform judgments on the significance of impacts. Only a small
number of licence applications have been deemed a controlled action under the
EPBC Act. One such example is related to the management of flying foxes at the
Royal Botanic Gardens, Sydney. DECC had determined that the proposal was not
likely to significantly affect flying foxes and had issued a Section 95 certificate which
included conditions to manage the likely impacts on flying foxes. DEWHA
subsequently determined that the impact was likely to be significant and the action
was declared a controlled action under the EPBC Act. DEWHA consideration of the
matter has not yet been finalised.
Questions relevant to streamlining licensing operations include:

How much information is required and what criteria are applied in making
assessments of significance?

Can the timing of NSW and Australian government assessment and approval
processes be synchronised?

How can integration and communication in decision making be enhanced?
Final Report
24 July 2009
Page 28 of 109
The provision for the Director General of DECC to place conditions on to Section 95
certificates is currently part of a range of legislative amendments under consideration
by the NSW Government. The current process is summarised in Figure 3:
Threatened Species Licensing Under NSW TSC Act (Section 91 and 95).
Figure 4: Threatened Species Licensing Under NSW TSC Act (Section 91 and
95).
Action is likely to result in:
(a) harm to an animal that is of, or is part of, a threatened species, population or ecological
community;
(b) picking of a plant that is of, or is part of, a threatened species, population or ecological
community;
(c) damage to critical habitat; and/or
(d) damage to habitat of a threatened species, population or ecological community
Action not exempt (see Appendix 8j). Proponent applies for a s91 licence
Action on land that is critical habitat
Action is not on land that is critical
habitat
SIS required. Proponent seeks DG
requirements and prepares SIS in
accordance with requirements.
Licence application and SIS submitted
DG considers application
Significant impact
Not significant impact
Application and SIS exhibited
DG considers application. Licence may be refused
or granted with or without conditions
Final Report
24 July 2009
s91 Licence not required.
s94(5) Certificate issued
Page 29 of 109
3.0 Opportunities for Improvement and Proposed Operational
Refinements
The overarching challenges for coordinated implementation of the three pieces of
legislation addressed in this review relate to:

the timeliness of assessment and decision making processes

the conservation and environment protection outcomes which result.
Both jurisdictions are criticised at times for what has been perceived to be the
protracted period of time taken to complete referral assessment, referral and
decision-making processes. There is also periodically criticism that approvals have
not been appropriately and consistently conditioned to secure meaningful
conservation and environment protection outcomes.
To put this into perspective, of the 419 major development proposals (Part 3A of the
EP&A Act) received by the DoP since the assessment bilateral was established in
January 2007, 130, or 31% were also referred to DEWHA because of possible
impacts on matters of NES. Of these 130 referred matters, 17 proposals (13%) were
declared ‘controlled actions’ requiring DEWHA approval (i.e. 4% of all the 419 major
development proposals). As well as these, a small number of other Part 3A matters
were not assessed under the assessment bilateral; a few of the many thousands of
proposals considered by councils under Part 4 of the EP&A Act; and a small number
of Part 5 proposals assessed by NSW government agencies may also require dual
assessment. Overall, less than 5% of all planning and development activity in NSW
has required assessment by both the Australian and NSW governments. More
detailed statistics can be found at Appendix 7.
This review has focused on those situations where timeliness and outcomes can be
improved by more effective operational engagement between the NSW and
Australian government agencies involved.
The Australian and NSW government processes are based on fundamentally the
same processes:

assessing site values

assessing options for avoiding, mitigating or offsetting impacts on those values

devising suitable conditions to specify and secure conservation and
environment protection outcomes.
Policy differences between the jurisdictions are relatively minor, while the
interpretation and application of statutory requirements and policy principles in
dealing with particular conservation, planning issues and development proposals
often pose the greatest operational challenges.
Opportunities for improvement characterised by specific principles and
recommendations for action have been identified under four functional headings:
1.
2.
3.
4.
Communication and coordination - to achieve sensible integration and
alignment of jurisdictional legislative requirements, assessment and decisionmaking processes.
Offsets - development and implementation of a common approach to offsets.
Strategic planning - development and implementation of an agreed approach
to strategic assessments and biodiversity certification.
Listing - development and implementation of consistent threatened species
and community listing processes.
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Application of the operating principles and implementation of the recommendations
for action proposed utilising team based approaches with high level Executive
engagement in problem solving and priority setting will enhance the credibility of the
regulatory framework through timely assessments and referrals, increased efficiency
in public infrastructure spending and reduced costs to proponents along with the
delivery of optimal biodiversity conservation and environment protection outcomes.
3.1 Opportunities for Improvement
3.1.1 Communication and Coordination
Presumably because of workload pressures and jurisdictional focus, there is currently
only limited use made of dialogue opportunities, in particular with regard to the
statutory EPBC notifications process. In order to enhance the concurrent
coordination and implementation of NSW and Commonwealth legislation, relatively
simple changes can be quickly and easily established within and between agencies.
Better understanding of each jurisdiction’s legislative requirements, assessment
processes and decision-making is necessary to provide a basis for early dialogue,
timely referrals and collaborative assessments. This is an important first step to
address one of the most common criticisms of planning, development control and
conservation processes.
The current Hawke Review of the EPBC Act may well identify opportunities to better
align specific elements of the legislation. However, this operational review has
identified many instances where interpretation and application of the existing
legislation can be improved to ensure greater timeliness and better conservation and
environment protection outcomes.
The initial focus of the operational review team discussions has been to come to a
shared understanding of the existing processes operating within and between
agencies. The results of these discussions are summarised in the simple flowcharts
and explanations set out in Section 2.0 (Current Operations) of this report.
Discussion and sharing of agency organisation charts detailing the level at which
engagement can occur, both informally and formally, as well as where critical
decisions are taken, also proved useful.
Operating principles have been articulated and agreed among the members of the
review team. These provide a framework for improved interaction and coordination
between NSW DoP, DECC and DEWHA. For these to be effective on an on-going
basis, they will need to be the subject of specific training for all staff currently
engaged in relevant functions and integrated into the induction of new staff as they
take on these functions.
In addition to training, the NSW Bilateral Assessment Guidelines need to be updated.
These are DoP procedural guidelines used by assessment officers and external
guidelines to inform the public of the bilateral assessment process.
Simple innovations such as the establishment of one-stop email addresses in each
agency through which information can be routinely shared would significantly assist
early engagement and reduce delays due to staffing changes, provided there is
systematic checking and specific staff are routinely tasked to be accountable for
information updates, referrals and responses.
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The flow-on benefits include:

providing the basis for decisions about when assessment processes are best
done concurrently rather than sequentially;

minimising the need to ‘stop the clock’ to seek further information from the
proponent;

improved knowledge of processes and imperatives of the other agencies;

establishment of a contemporary network of key contacts; and

ensuring more effective early engagement between jurisdictions in future policy
formulation processes.
There is currently only limited and somewhat opportunistic consultation to ensure that
Director General’s requirements and approval conditions formulated through NSW
assessments both within and outside the bilateral agreement will meet DEWHA
requirements. Since the ideal timing of referral to DEWHA varies with the specific
proposal and inherent issues, there is a need for an early informal alert or routine
administrative (as opposed to statutory) referral process between agencies.
Information being shared between agencies needs to be in a form that provides a
clear description of the nature of any proposal and the nature and scale of
anticipated impacts so that a judgement can be made of the most appropriate
assessment and approval process to be followed. The absence of a single template
for this purpose is compounded by the overlapping but not entirely consistent
statutory responsibilities and processes within each jurisdiction, and the differences
in operational approaches.
Assessment requirements need to be aligned between jurisdictions both in terms of
process (e.g. survey guidelines) and the criteria applied in discretionary judgments of
the acceptability of overall conservation and environment protection outcomes,
especially as they relate to matters of NES. This can be achieved by developing a
shared understanding of quantitative approaches to assessing impacts and devising
acceptable outcomes. These guidelines should include indications of when
quantitative and non-quantitative mechanisms might be appropriately used.
Major land releases are an area where coordination between NSW and Australian
government agencies is critical. Some land releases are currently dealt with under
bilateral assessments and uniformity in survey requirements and assessment of
significance at an early stage will assist in streamlining assessment processes.
Subsequently this will assist consistent offset requirements and conditions of
approval between governments. This is also important for larger land releases, such
as Growth Centres, where a strategic assessment may be more appropriate.
Principle 1:
Routine early notification of proposals potentially requiring
referral is needed between agencies and informal early input from
DEWHA on matters of NES is essential to inform judgments on
process options and the optimal timing of formal referral action.
Recommendation 1: Where NES matters may be impacted and referral to DEWHA
for a controlled action determination is likely to be required, consent and determining
authorities should, through clear and simple administrative processes, ensure that
there is DEWHA input:

in the development of policies and methodologies for assessment;

in the pre-planning phase when decisions are made on assessment options for
dealing with new proposals;
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

in the drafting of Director General’s requirements for Environmental Impact
Statements (where required); and
in the drafting of consent and approval conditions.
Recommendation 2: Clear and simple administrative procedures should include:
 email and website connections designed and managed to optimise
communication; and
 designated and resourced contact points and coordinators to make use of
specialist knowledge and ensure timely and efficient processing of proposals.
Recommendation 3: All agencies should take action to:
 finalise and implement the administrative procedures, to give effect to the
assessment bilateral;
 ensure that the DoP Director General requirements clearly require consideration
of matters of NES; and
 ensure that all NSW assessment reports address DEWHA NES requirements.
Recommendation 4: DEWHA criteria for addressing matters of NES should be
clearly explained and NSW agencies should collaborate with DEWHA to agree and
apply a consistent and transparent approach to the determination of significance in
the assessment of impacts on matters of NES.
3.1.2 Offsets
The Australian and NSW governments have each developed policy regimes guiding
the use of environmental offsets in development proposals. The Australian
Government Draft Policy Statement: Use of environmental offsets under the
Environment Protection and Biodiversity Conservation Act 1999, drafted in 2007, was
the subject of an extensive national consultation process and is nearing finalisation.
DEWHA is currently using the principles established in this draft document to guide
decision making on proposed actions under the EPBC Act.
The offsetting framework for biodiversity in NSW is presented in ‘Principles for the
use of biodiversity offsets in NSW’ published on the DECC website. There are
currently two different processes for delivering offsets in NSW. This can be either by
negotiation during the impact assessment process or by acquiring an offset through
the BioBanking scheme. Offsets arranged through the impact assessment process
are guided by the case-by-case application of the NSW offsetting principles. The
BioBanking scheme uses a scientifically based methodology to calculate the
quantum of offsets and has established a set of trading rules that specify the nature
and location of those offsets. Appendix 8g sets out the framework for BioBanking.
There are three key differences between the principles established in NSW and at
the Commonwealth level:
1.
The EPBC Act requires that environmental offsets should be targeted to the
matter of NES, while in NSW landscape or ecosystem level outcomes can
apply.
2.
The EPBC Act provides for the use of indirect offsets. This type of offset is not
supported in NSW.
3.
The TSC and EP&A Acts provide greater flexibility in the timing and means of
securing offsets (for example the use of levies to purchase offsets over time).
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Alignment of these principles would be ideal. However, given that these principles
are not definitive, it is their application rather than their expression that is critical to
resolve. Rather than engage in a policy debate on the principles, it is timely to directly
engage the policy and operational areas of all agencies in the application of offsets in
a practical way.
Offsetting applies in two distinctly different contexts:
1. Reactive, site-by-site developments (e.g. EP&A Act Parts 3A, 4 and 5
development applications, TSC Act BioBanking and EPBC Act controlled actions)
2. Strategic, area-wide planning (e.g. EP&A Act Part 3 EPIs and TSC Act
biodiversity certification of EPIs, EPBC Act strategic assessments).
The policy and principles for offsetting need to be able to be applied in both of these
contexts.
In NSW a science-based methods approach has been adopted by DECC to provide
objectivity, consistency and robustness to decision making. The clearest expression
of this approach is a quantitative assessment methodology called the BioBanking
Credit Calculator. BioBanking is specifically designed to address biodiversity issues
of concern to NSW (there is no consideration of the social and economic factors and
only partial consideration of matters of NES) and it is only suitable to be used for siteby-site development assessment.
NSW has commenced a project to develop a qualitative method to underpin
biocertification of EPIs under the TSC Act. This work has only just commenced and
an opportunity exists to address both the social and economic factors required for
development of strategic, area-wide planning under the EP&A Act, as well as the
matters of NES required for strategic assessments under the EPBC Act.
Achieving a coordinated approach to offsets requires that the Australian and NSW
governments engage early and collaborate more closely on future development and
review of policies. In the interim, where it becomes evident on a case by case basis
that jurisdictions have differing requirements there should be early and on-going
discussion to agree the best mechanism to achieve optimal conservation outcomes.
While it is acknowledged that the nature and scope of offsets being considered often
changes significantly through the assessment and approval process as impact
avoidance and mitigation options evolve, the early engagement of DEWHA in the
preliminary stages of developing overall solutions to the environmental issues raised
by any particular proposal is critically important. This focuses the proponent’s
attention on the relative costs and benefits of avoidance and mitigation options.
Case studies considered during this review indicate that discretionary decisionmaking within the different parameters set by jurisdictional policies and legislative
obligations can lead to divergence on issues such as species- versus landscapebased conservation imperatives and balancing the environmental, economic and
social costs and benefits of a proposal. While NSW may be striving to achieve
landscape-wide or bioregion-wide conservation benefits, Australian Government
involvement must statutorily focus on the relevant EPBC Act trigger which will often
by a particular listed species, endangered ecological community, or the values of a
landscape segment such as a Ramsar wetland.
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There is also a need to develop a common approach to what constitutes acceptable
security and enforceability of offsetting arrangements. This is with particular regard to
the use of financial levies and the timing of achieving offsetting outcomes and the
use of indirect measures (such as research or education campaigns) to fulfil offset
requirements.
The collaborative development of operational guidelines for applying offsetting
principles would be usefully informed by a number of pilot projects to provide the
jurisdictions with the opportunity to work together to resolve policy interpretations in
the context of their practical application. This would enhance the predictability of
outcomes and the confidence of all participants in the offsetting process.
Finally, in determining whether a proposal is a controlled action the Australian
Government is unable to take into account any proposed offsets. As a result, the
proponent must move through the controlled action process, even if a suitable
outcome has been identified upfront. This is a legislative limitation that creates a
disincentive for proponents to find innovative solutions.
Principle 2:
Agencies should collaborate to align Australian and NSW government
policies on offsetting. In matters where the EPBC Act applies,
offsetting proposals should be consistent with Australian
Government offsetting policy and developed in consultation with
DEWHA.
Recommendation 5: NSW agencies should work with DEWHA to develop robust
operational guidelines, by 30 September 2009, so that principles governing policies
on offsets and their application are interpreted and applied on an agreed basis with
inconsistencies resolved at the first review opportunity.
Recommendation 6: Specific mining, residential and infrastructure projects should
be used as pilots to reality test the operational guidelines at the earliest opportunity.
Recommendation 7: NSW DECC should work with DEWHA, to ensure that the
BioBanking methodology addresses matters of NES including World Heritage,
Ramsar wetlands and migratory species.
Recommendation 8: The Hawke Review of the EPBC Act should be asked to
consider the possibility of having offsets included as part of the determination of
whether a proposal is a controlled action.
3.1.3 Strategic Planning
The Growth Centres in Western Sydney and the Lower Hunter and continued
expansion of coal mining in the Hunter Region have highlighted the value of taking a
strategic approach to planning and environmental impact assessment. Biodiversity
certification of large sites has the effect of streamlining site-specific threatened
species assessment and makes use of tools such as offsetting and financial levies to
achieve optimum conservation and environment protection outcomes for the regional
landscape.
An agreed approach to strategic assessments could significantly reduce unnecessary
duplication in assessments and improve the timeliness of assessment and approval
processes. Similar to biocertification, the EPBC Act strategic approval provisions
offer an approach that removes the need for individual site-specific assessment.
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The strategic approvals process is broadly defined in the EPBC Act. Strategic
assessment can be applied to a program, plan or policy, which leaves a broad scope
for its applicability. There are relatively few statutory specifications for carrying out a
strategic assessment, including regarding communication arrangements. Whilst there
may be some short term challenges in terms of implementing processes and
procedures, the breadth of the legislative provisions presents an opportunity for the
NSW and Australian governments to agree to align emerging strategic assessment
methodologies. A collaborative approach to the development of a framework is
desirable, along with exploration of opportunities to align strategic assessment with
NSW biodiversity certification and other existing NSW systems where possible.
There is an opportunity to use current case studies as pilot strategic assessments to
inform the development of an agreed approach for wider application in NSW. The
Western Sydney Growth Centres is an obvious candidate as a pilot to test the
application of a contemporary strategic planning approach.
There is also an opportunity to test a coordinated approach to managing key species
of national significance by collaborating on a strategic assessment of the
management of Grey-headed Flying-foxes in NSW, to devise planning and
development controls which satisfy the legislative obligations of both the NSW and
Australian governments.
Pilot strategic assessments will also assist in developing protocols, streamlining and
aligning processes, standardising documents and resolving uncertainty around the
cost and resourcing of such assessments.
Principle 3:
To deliver clarity and certainty for the development and
conservation communities, agencies should take a strategic
approach to planning for biodiversity and development through the
tools of strategic assessments, conservation agreements and
biodiversity certification.
Recommendation 9: Undertake strategic assessments, covering Western Sydney
Growth Centres, the management of the Grey-headed Flying-fox and a suitable state
significant site/concept plan. The projects should all be completed by 30 June 2010
and inform priorities and protocols for future assessments.
Recommendation 10: NSW DECC should develop the biodiversity certification
methodology in cooperation with DoP and DEWHA, to ensure social and economic
considerations as well as matters of NES including World Heritage, Ramsar wetlands
and migratory species are considered.
3.1.4 Listing
Commonwealth and NSW legislation provides for the establishment and updating of
lists of threatened species, populations (NSW), ecological communities and key
threatening processes. These lists identify key elements of the environment that
require protection and intervention. Items on the lists trigger protection provisions
under the legislation, and provide a basis for making decisions about recovery,
conservation and threat abatement effort.
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It is not unexpected that the lists in the two jurisdictions are different. Both systems
rely heavily on public nominations, which will naturally vary across jurisdictions. The
focus of nominations differs, with the Australian Government looking at national
extent while NSW only assesses NSW distribution. As a result of these differences
some species may be nationally stable yet threatened within NSW and vice versa.
Another important difference between approaches is that the national process is
directly supported by DEWHA undertaking a range of research and assessment
tasks on behalf of the Committee. In NSW the Scientific Committee undertakes its
assessments independently, although it does call on advice and information from the
Department. Resource limits mean some nominations are prioritised for assessment
ahead of others.
Overall, listing criteria and categories are fairly consistent between the NSW and
Australian governments, as both are based on international IUCN standards.
However, some legislative requirements and philosophical differences in the scientific
approaches of the NSW Scientific Committee and the Threatened Species Scientific
Committee do lead to significant differences in listing focus, particularly in relation to
ecological communities. There is a difference in the ability of the jurisdictions to set
priorities for assessment. While both jurisdictions have a strong and robust public
nominations process, the Australian Government Minister also has the ability to
influence annual assessment priorities by determining conservation themes and by
determining the Finalised Priority Assessment List based on the TSSC’s proposals. It
would be useful for both jurisdictions to be able to set strategic assessment priorities,
alongside assessing public nominations, to ensure that assessments address the key
environmental issues of each jurisdiction.
While significant long-term reform of listings processes would require legislative
change, there are short- to medium-term operational opportunities to improve
information sharing and coordination between jurisdictions and to promote ongoing
dialogue about policy differences. This would improve the currency, consistency and
accuracy of listings.
Current, accurate lists of threatened species and ecological communities enhance
the ability of all governments, and the community, to achieve conservation outcomes.
Where the differences in the lists are not clear and effectively communicated a
number of concerns can arise, reducing the efficiency of conservation efforts and
funding; confusing landowners, developers and the general public; reducing
compliance with regulatory provisions; and adding to agency workloads through
duplication of effort.
Each jurisdiction has its own priorities and resource allocations for threatened
species assessments. Background information and justifications for listing decisions
have often not been shared between jurisdictions, significantly reducing the
prospects for achieving consistency. Collaboration to share expertise, information
and insights on criteria, and debate on taxonomic biases, nomenclature and other
matters of interest was recommended as a priority by a 2002 meeting of
representatives of Australian Threatened Species Scientific Committees.
Disappointingly, collaboration between Scientific Committees and listing processes
remains largely ad hoc between the NSW and Australian governments.
The 2002 meeting of representatives of Threatened Species Committees proposed
the following principles:
‘1. That the Commonwealth list all species and ecological communities endemic to a
State or Territory and listed by that State or Territory as threatened.
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2. That all species and ecological communities listed by the Commonwealth as
threatened be listed by the States and Territories in which they occur or have
occurred (acknowledging that some variation in listing categories may be
appropriate in particular cases).
3. That all Australian lists of species, ecological communities and key threatening
processes be kept up to date and, where appropriate, aligned with each other.
4. That each threatened species, ecological community or key threatening process
listing recommended by a committee is supported by a record of the data used in
the listing, the interpretation placed on that data and the reasoning for listing.
5. That when a State, Territory or Commonwealth committee assemble data on a
species, ecological community or key threatening process it be in a form that can
be immediately used by other relevant State(s) or Territory(ies) and the
Commonwealth.
6. That a network be established to share expertise, information on the insights on
criteria, taxonomic biases, nomenclature and any other matters of interest.’
These principles need to be reviewed with a view to committees agreeing a program
to align listing processes as far as possible as soon as possible.
Furthermore, in the longer term, consideration should be given to establishing a
national approach to the listing of threatened species, ecological communities and
key threatening processes that addresses the individual needs of jurisdictions, in
order to achieve more substantial cross-jurisdictional reform.
Principle 4:
A nationally consistent approach to scientific assessment and
listing processes would enhance public credibility and make them
more efficient in delivering timely decisions and optimal conservation
outcomes.
Recommendation 11: The Hawke Review of the EPBC Act should be asked to
consider the benefits of an integrated national approach to threatened species and
ecological communities listing including:

nationally agreed categories and definitions;

an explicit role for government in determining strategic priorities for
assessment, in addition to the existing public nominations process;

an appropriate division of listing responsibilities between jurisdictions; and

maintenance of robust and independent scientific assessments.
Recommendation 12: Australian Government and NSW Scientific Committees
should meet within three months to accelerate efforts to address key differences in
administrative and policy approaches, including: the definition of ecological
communities, joint explanatory statements about listings and joint conservation
advice on species and communities.
Recommendation 13: Australian Government and NSW Scientific Committees
should consider developing routine, ongoing information sharing protocols to avoid
duplication of effort and improve consistency and timeliness of decision-making.
A summary of detailed issues for list alignment is in the Appendix 8i to the report.
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3.2 Implementation
Successful implementation of the recommendations of this report will require
collaborative action at all relevant levels in each agency. Agencies should investigate
the application of team based approaches (both within and between agencies) to
better deliver timely decisions on major projects.
Communication at an officer to officer level is fundamental to effective management
of bilateral assessments, strategic assessments and development of
Commonwealth/State operational relationships.
The use of teams can overcome blockages resulting from over reliance on key
individuals thereby building consistency and resilience as well as improving
transparency in decision making processes.
Executive members are best placed to develop an implementation plan, determine
priorities and drive process improvements. In addition, the Executive representatives
should be tasked to resolve outstanding policy issues such as those relating to
negotiation of offsets and identifying triggers for referral of these issues by
responsible officers to the Executive team for resolution.
Finally, regular collaborative monitoring of priority projects by CEOs will ensure
strategic priorities are maintained and optimal conservation outcomes are achieved.
Recommendation 14: CEOs should appoint Executive level contacts in each
agency to drive implementation of the recommendations of this report. The Executive
contacts should function as an interagency steering committee tasked to develop an
implementation plan identifying specific tasks, timelines and officers accountable for
delivery. The Executive steering committee should explicitly address the need for
early and effective communication to address significant issues such as:
 differences in emphasis between jurisdictions in the application of offset policies;
and
 the challenges of implementing the findings of the report in situations, such as the
Western Sydney Growth Centres, where work on finalising development approval
conditions is well advanced.
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4.0
Conclusion
The three pieces of legislation which have been the subject of this review are each a
product of the time and jurisdictional circumstances in which they were drafted and
have been separately amended from time to time to enhance their relevance and
effectiveness in delivering on statutory objectives. Legislative reviews may in time
result in further amendments to achieve greater integration between Commonwealth
and NSW provisions. The threatened species provisions stand out as particularly in
need of national integration, given that they trigger more than half the NSW referrals
for Australian Government consideration.
This review has however concentrated on maximising the operational effectiveness
of the existing legislation and has identified considerable opportunities for improved
interaction between the responsible agencies to deliver more timely decisions and
better conservation outcomes. Adoption and application of the proposed operating
principles and implementation of the recommendations for action will deliver tangible
benefits for all involved in major planning and development initiatives, but only if the
principles and procedures are embedded in all relevant functional areas and at all
levels of the agencies involved.
Team approaches both within and between agencies will be crucial to success:
 at the internal agency level, they are essential to prevent unhelpful reliance
on the presence of a key individual, with processing tasks effectively stalled
if they are absent or otherwise deployed for a period;
 at the interagency level, members of the proposed Executive steering
committee must collaborate on the implementation plan and identify clear
triggers for more junior officers to refer emerging issues for early resolution;
and
 at the CEO level, it will be important for the agency heads to come together
on a regular basis to track implementation of the proposed changes and
monitor the progress of assessment and decision making on strategically
significant proposals.
Early action by an Executive level interagency steering committee is needed to
develop and drive an implementation plan.
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Appendices
Page
1
Abbreviations
41
2
The independent review of the Environment Protection and
Biodiversity Conservation Act 1999
42
3
Terms of Reference of the Senate Inquiry into the operation of
the Environment Protection and Biodiversity Conservation Act
1999
44
4
The recommendations of the Senate Inquiry into the operation of
the Environment Protection and Biodiversity Conservation Act
1999
45
5
Terms of Reference of this Operational Review of the Threatened
Species conservation Act (NSW), Environmental Planning And
Assessment Act (NSW) and the Environment Protection And
Biodiversity Conservation Act (Cth)
47
6
Review team members
51
7
Analysis of NSW Referrals Statistics 2000 - 2009
52
8
Section 2.0 Current Operations charts and descriptions
a) Final draft Administrative Procedures in Relation to Clause
19 of the Bilateral Agreement between the Commonwealth
of Australia and the State of New South Wales under
section 45 of the EPBC Act
58
b) Bilateral Assessments under Part 3A of the EP&A Act
1979
67
c) Bilateral Assessments under Part 4 of the EP&A Act 1979
70
d) Bilateral Assessment under Part 5 of the EP&A Act 1979
72
e) EPBC Act Referral, Assessment and Approval processes
74
f) Local Environment Plans and State Environmental
Planning Policies prepared under Part 3 of the EP&A Act
1979
79
g) BioBanking Assessment under the TSC Act 1995 and
BioBanking Bilateral with EPBC Act
83
h) Biodiversity Certification under the TSC Act 1995
85
i) Listing Alignment – Issues for Consideration
88
j) Threatened Species Licensing under the TSC Act –
Exemptions
90
k) Strategic Assessments
91
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Appendix 1: Abbreviations
DECC
NSW Department of Environment and Climate Change
DEWHA
Australian Government Department of Environment, Water, Heritage and
the Arts
DGRs
Director General’s Requirements
DoP
NSW Department of Planning
EC
ecological community
EIS
environmental impact statement
EP&A Act Environmental Planning and Assessment Act 1979
EPBC Act Environment Protection and Biodiversity Conservation Act 1999
EPI
environmental planning instrument
GHFF
Grey-headed flying fox
LEP
Local Environmental Plan
MNES
matters of national environmental significance
NES
national environmental significance
PER
public environment report
SEPP
State Environmental Planning Policy
TSC Act
Threatened Species Conservation Act 1995
TSSC
Threatened Species Scientific Committee (EPBC Act)
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Appendix 2: The independent review of the Environment
Protection and Biodiversity Conservation Act 1999
The Australian Government’s Minister for the Environment, Heritage and the Arts has
announced the establishment of an independent review of the Australian
Government's central piece of environmental legislation - the Environment Protection
and Biodiversity Conservation Act 1999 (EPBC Act).
This will be the first review of the Act since it commenced on 16 July 2000. Dr Allan
Hawke will lead the review with the Department of the Environment, Water, Heritage
and the Arts providing secretariat support.
The review will assess the operation of the Act and the extent to which it has
achieved its objectives. The review's final report will be provided to the Minister by
the end of October 2009.
About the review
The independent review of the Environment Protection and Biodiversity Conservation
Act 1999 (EPBC Act) is being carried out in accordance with section 522A of the
EPBC Act. This section requires that a review of the Act take place before 16 July
2010, looking at the operation of the Act and the extent to which it is achieving its
objects.
The review will be conducted according to the terms of reference.
The review is being undertaken by Dr Allan Hawke supported by a panel of experts.
Terms of Reference
1.
2.
3.
A review of the operation of the Environment Protection and Biodiversity
Conservation Act 1999 (the 'EPBC Act') will be carried out in accordance with
section 522A of the Act.
In particular the review will examine:
a.
the operation of the EPBC Act generally
b.
the extent to which the objects of the EPBC Act have been achieved
c.
the appropriateness of current matters of National Environmental
Significance
d.
the effectiveness of the biodiversity and wildlife conservation
arrangements.
The review will be guided by key Australian Government policy objectives:
a.
to promote the sustainability of Australia's economic development to
enhance individual and community well-being while protecting biological
diversity and maintaining essential ecological processes and systems
b.
to work in partnership with the states and territories within an effective
federal arrangement
c.
to facilitate delivery of Australia's international obligations
d.
the Australian Government's deregulation agenda to reduce and simplify
the regulatory burden on people, businesses and organisations, while
maintaining appropriate and efficient environmental standards
e.
to ensure activities under the Act represent the most appropriate, efficient
and effective ways of achieving the Government's outcomes and
objectives in accordance with the Expenditure Review Principles.
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4.
5.
The review will seek input from state and territory governments, members of the
community and industry.
The review will be commenced as soon as possible and completed by 31
October 2009.
A discussion paper to initiate the independent review has been prepared by Dr
Hawke [http://www.environment.gov.au/epbc/review/publications/discussion-paper.html].
The purpose of this discussion paper is to encourage input from individuals,
businesses and organisations into the review of the Act. It provides:

an explanation of the key provisions of the Act

a summary of how the provisions have been implemented since the Act came
into force in 2000

a selection of key questions regarding the operation of the Act to help stimulate
discussion as part of the review.
Following recent public consultation based on the discussion paper, an interim report
highlighting the key issues that have been raised through the review will be released
in mid-2009. Public input will be sought on this interim report.
Final Report (Appendices)
24 July 2009
Page 44 of 109
Appendix 3: Terms of Reference of the Senate Inquiry into the
operation of the Environment Protection and Biodiversity
Conservation Act 1999
1.
The Senate notes the continuing decline and extinction of a significant
proportion of Australia's unique plants and animals, and the likelihood that
accelerating climate change will exacerbate challenges faced by Australian
species.
2.
The following matters be referred to the Senate Environment, Communications
and the Arts Committee:
The operation of the Environment Protection and Biodiversity Conservation Act
1999 (EPBC Act) and other natural resource protection programmes, with
particular reference to:
a.
the findings of the National Audit Office Audit 38 Referrals, Assessments
and Approvals under the Environment Protection and Biodiversity
Conservation Act 1999;
b.
lessons learnt from the first 10 years of operation of the EPBC Act in
relation to the protection of critical habitats of threatened species and
ecological communities, and potential for measures to improve their
recovery;
c.
the cumulative impacts of EPBC Act approvals on threatened species and
ecological communities, for example on Cumberland Plain Woodland,
Cassowary habitat, Grassy White Box Woodlands and the Paradise Dam;
d.
the effectiveness of responses to key threats identified within the EPBC
Act, including land-clearing, climate change and invasive species, and
potential for future measures to build environmental resilience and
facilitate adaptation within a changing climate;
e.
the effectiveness of Regional Forest Agreements, in protecting forest
species and forest habitats where the EPBC Act does not directly apply;
f.
the impacts of other environmental programmes, e.g. EnviroFund,
GreenCorps, Caring for our Country, Environmental Stewardship
Programme and Landcare in dealing with the decline and extinction of
certain flora and fauna; and
g.
the impact of programme changes and cuts in funding on the decline or
extinction of flora and fauna.
Final Report (Appendices)
24 July 2009
Page 45 of 109
Appendix 4: Recommendations of the Senate Inquiry into the
Operation of the Environment Protection and Conservation
Act 1999
The recommendations of the first report were:
Recommendation 1
2.10 The committee recommends that the objects of the Act be amended to remove
the words 'to provide for' from section 3(1)(a) and 3(1)(ca).
Recommendation 2
2.57 The committee recommends that the appropriateness of a greenhouse trigger
under the Act and the nature of any such trigger, should it be required, be carefully
considered in light of the findings of the independent review and in the context of the
government's overall response to climate change, in particular the CPRS.
Recommendation 3
2.58 The committee recommends that, having regard to the conclusions of the review
of the National Framework for the Management and Monitoring of Australia's Native
Vegetation currently underway, and in light of advice from the Threatened Species
Scientific Committee, the government should consider including a land clearing
trigger in the Act.
Recommendation 4
3.34 The committee recommends that the government give urgent consideration to
increasing the resources available to the department in the areas of assessment,
monitoring, complaint investigation, compliance, auditing projects approved under
Part 3, and enforcement action.
Recommendation 5
3.37 The committee recommends that the department undertake regular evaluation
of the long-term environmental outcomes of decisions made under the Act, and that
the government ensure agency resources are adequate to undertake this new
activity.
Recommendation 6
4.19 The committee recommends that the Independent Review of the EPBC Act and
/ or the ANAO examine the effect of existing bilateral agreements on the quality of
environmental assessments of matters of national environmental significance. The
committee suggests that particular regard be given to the transparency of, public
engagement in, and appeal rights in relation to assessments performed under a
bilateral agreement, compared to the conditions that would have existed had the
assessment been performed under the EPBC Act.
Final Report (Appendices)
24 July 2009
Page 46 of 109
Recommendation 7
4.33 The committee recommends that the government review the interaction
between the EPBC Act and the Fisheries Management Act in relation to the
conservation of fish species and relevant assessment processes.
Recommendation 8
5.34 The committee recommends that the process for nomination and listing of
threatened species or ecological communities be amended to improve transparency,
rigour and timeliness. Changes that should be considered include:

Either requiring publication of the Scientific Committee's proposed priority
assessment list or reducing ministerial discretion to revise the priority list under
section 194K; and

Reducing the maximum period allowed for an assessment under section
194P(3).
Recommendation 9
5.66 The committee recommends that government policy regarding the use of
'offsets' for habitat conservation state that the use of offsets:

is a last resort;

must deliver a net environmental gain; and

should not be accepted as a mitigating mechanism in instances where other
policies or legislation (such as state vegetation protection laws) are already
protecting the habitat proposed for use as an offset.
Recommendation 10
6.76 The committee recommends that consideration be given to expanding the scope
for merits review in relation to ministerial decisions under the Act, particularly in
relation to:
 whether an action is a controlled action,
 assessment decisions; and
 decisions on whether a species or ecological community is to be listed under the
Act.
The committee recommends that the independent review examine this possibility in
the first instance, and that the process of consideration should include consultation
with the Administrative Appeals Tribunal.
The recommendation of the second report was:
Recommendation 1
1.106 The committee notes that the Minister for Environment has formally asked the
Independent Review of the EPBC Act to consider the findings and recommendations
of this inquiry (see letter 13 March 2009). Accordingly the committee recommends
that the Independent Review consider the findings in this report and recommend
proposals for reform that would ensure that RFAs, in respect of matters within the
scope of Part 3 of the EPBC Act, deliver environmental protection outcomes, appeal
rights, and enforcement mechanisms no weaker than if the EPBC Act directly
applied.
Final Report (Appendices)
24 July 2009
Page 47 of 109
Appendix 5: Terms of Reference of Operational Review of the
Threatened Species Conservation Act (NSW), Environmental
Planning and Assessment Act (NSW) and the Environment
Protection and Biodiversity Conservation Act (Cth)
1.3.1
Purpose of Review
1.3.1.1
To provide the basis for developing agreed frameworks for interaction and
improve co-ordination between NSW Departments (including Planning
(DOP) and Environment and Climate Change (DECC) and the
Commonwealth Department of the Environment, Water, Heritage and the
Arts (DEWHA) in relation to the operation of the Threatened Species
Conservation Act (NSW) (TSC Act), Environmental Planning and
Assessment Act (NSW) (EP&A Act) and the Environment Protection and
Biodiversity Conservation Act (Cth) (EPBC Act).
1.3.1.2
The review will compare the NSW and Commonwealth systems to
determine potential overlaps, propose operating principles and set out
options to improve co-ordination and reduce duplication between State
agencies and DEWHA in relation to the following activities.
1.3.2.
Operation of the referral process
1.3.2.1
Under the EPBC Act, actions in NSW that may have a significant impact on
Commonwealth listed species and communities, Ramsar, World Heritage,
National Heritage or Commonwealth land must be referred to DEWHA to
determine whether the action is a controlled action for the purposes of the
EPBC Act. (Note Nuclear actions and the Commonwealth marine area are
also matters of national environmental significance but these are not
generally matters of intersection between NSW DECC, DOP and DEWHA.)
1.3.2.2
Once an action is deemed controlled, then the Commonwealth Minister of
the Environment’s approval is required. The Minister makes this
determination on the basis of the likely environmental significance of the
impact as well as economic and social matters.
1.3.2.3
NSW has a Threatened Species Conservation Act which also lists
threatened species and there are state based assessment and decision
processes through the NSW legislation.
1.3.2.4
In the NSW context, most actions referred to the Commonwealth are also
subject to threatened species assessment under the TSC Act or under
planning legislation.
1.3.2.5
The review is to recommend actions that:
a.
b.
improve co-ordination between TSC Act, EP&A Act and EPBC Act
processes including the timing of referrals by proponents
improve the capacity of NSW decision making to accommodate the
full range of EPBC Act concerns including listed species, endangered
ecological communities, Ramsar, World Heritage and National
Heritage
Final Report (Appendices)
24 July 2009
Page 48 of 109
c.
d.
e.
provide better communication between State and Federal agencies
including routine notification where one body is making a regulatory
decision that may affect an existing or potential State or
Commonwealth Government process or approval
align current approaches at both a Commonwealth and State level to
both impact assessment (significance questions) and offsetting
identify opportunities for and special arrangements for the coordinated
consideration of major proposals funded through the Commonwealth’s
infrastructure stimulus package to ensure effective environment
protection/conservation but also streamlined approvals and decisions.
1.3.2.6
In making any such recommendations, the review should consider: (a)
DEWHA’s current approach to the determination of controlled actions
including triggers applied, time taken to make decisions and consistency or
otherwise with existing NSW Government decisions; (b) NSW Planning and
DECC current approach for advising proponents in the NSW system of
potential approval requirements under the EPBC Act and opportunities for
joint assessment processes; and (c) NSW Planning and DECC
methodologies and strategic approvals processes to deliver landscape
scale outcomes.
1.3.3
Operation of the strategic approvals provisions
1.3.3.1
The EPBC Act strategic approvals provisions offer significant potential to
streamline NSW and Commonwealth regulatory approval processes.
Strategic approval offers a legislative mechanism whereby Commonwealth
site based referral processes are not activated in exchange for the delivery
of landscape scale conservation outcomes.
1.3.3.2
The EPBC Act strategic approval provisions are akin to NSW TSC Act
biocertification provisions and (in a land-use planning context) are based on
an environmental planning instrument such as a Local Environment Plan
(LEP) or State Environment Protection Policy (SEPP).
1.3.3.4
The review is to recommend actions that:
a.
b.
1.3.4
Identify the approaches and mechanisms whereby strategic approvals
may be assessed and implemented
Identify the steps required and likely timeframes for these strategic
assessments including options to streamline timeframes.
Operation of the assessment and approval bilateral provisions
1.3.4.1
The EPBC Act assessment and approval bilateral provisions offer
significant potential to streamline NSW and Commonwealth regulatory
approval processes. The Commonwealth and NSW already have an
assessment bilateral which is used to streamline environmental
assessments. Under an approval bilateral, a proposal assessed and
approved in accordance with an agreed assessment protocol would not
require referral under the EPBC Act.
1.3.4.2
Case studies (both successful and difficult) may be useful to identify
positive approaches and where the problems are and how they could have
been done differently for discussion by the working group.
Final Report (Appendices)
24 July 2009
Page 49 of 109
The review should identify:
a.
b.
c.
1.3.5
Operational principles to streamline approvals (i.e. early consultation
on major projects, defining data needs etc)
Action that would need to be undertaken to consider the application of
NSW methodologies such as biobanking, biocertification or
biodiversity offsets to meet Commonwealth requirements along with
anticipated timeframes
Other opportunities may exist for operating principles or approval
bilateral in NSW. This could include areas such as the licensing and
management of Flying foxes or the approval processes around private
native forestry.
Operation of the listing process
1.3.5.1
Both the EPBC Act and TSC Act contain provisions for the listing of
threatened species and endangered ecological communities. These listed
entities become the basis for impact assessment at both State and
Commonwealth levels. Both listings processes are undertaken by
independent scientific panel with the Federal lists also subject to Ministerial
approval.
1.3.5.2
Under the EPBC Act, all listed entities become matters of national
environmental significance. For this reason, Commonwealth definitions of
endangered ecological communities often include condition thresholds that
ensure that only the better quality remnants are included under the
Commonwealth definition.
1.3.5.3
The purpose of the review is to:
a.
b.
c.
d.
Identify inconsistencies in the way species and communities are
described at national and state levels, including specific examples,
and to consider the impact of these inconsistencies on the planning
process
consider the option of the publication of joint listing advice between
Commonwealth and NSW that explains the respective decisions of
Commonwealth and NSW Scientific Committees
identify options to better harmonise existing positives (such as
offsetting) as well as options for developing new joint policies to guide
decision-making in environmental assessment and approval
identify these or any other matters which the reviewer considerations
should be referred to the Hawke Review (the ten year statutory review
being conducted into the operation of the EPBC Act).
1.3.6 Timing
It is expected that the review will be undertaking within a 2 month timeframe (i.e.
completed by 1 July 2009). It is anticipated that a first workshop would be convened
in the first week of May
Final Report (Appendices)
24 July 2009
Page 50 of 109
1.3.7 Approach and Reporting
It is anticipated that the review convenor will hold a number of agency workshops to
gather information and generate concepts for development of operating principles to
be considered by agencies. Agencies will be expected to identify 2 key staff with high
level expertise to progress the review and assist in developing operating principles.
Minutes of meetings will be taken. The NSW DECC will also provide assistance in
coordination and report drafting. A progress report will be submitted the end of May
with final report by 1 July, at which time a meeting with relevant Director Generals will
be organised.
1.3.8
Outputs
Key outputs will be:
1.3.8.1
A brief description of the processes used in each jurisdiction and where
they intersect and differ substantially.
1.3.8.2
Draft Operating Principles which provide an agreed framework for
interaction and coordination between NSW DOP, DECC and the
Commonwealth DEWHA.
1.3.8.3
Identification of the longer term strategic interaction of Commonwealth and
State programs to achieve both improved environmental outcomes and
reduced red tape.
Final Report (Appendices)
24 July 2009
Page 51 of 109
Appendix 6: Review Team
The review team has included representatives of the NSW Department of Planning
(DoP), NSW Department of Environment and Climate Change (DECC), and the
Commonwealth Department of Environment, Water, Heritage and the Arts (DEWHA).
Brian Gilligan
Independent Convenor
Tom Grosskopf
Director Landscapes and Ecosystems Conservation, DECC
Elizabeth Kinkade Planning Policy Manager Strategies and Land Release, DoP
David Kitto
Director Major Development Assessment, DoP
Dianne Mead
A/Assistant Secretary Strategic Approvals and Legislation
Branch, DEWHA
Saravan Peacock
Director Species Listing Section, DEWHA
Julie Ravallion
Manager Information and Assessment Section, Metropolitan
Branch, DECC
John Ross
Project Manager Performance Monitoring and Project
Management Branch, DoP
Roland Trease
A/Director SEQ/NSW Section Environment Assessment Branch,
DEWHA
Lynden Bartrim
Senior Executive Liaison Officer, DECC, Secretariat
Kylee Wilton
Senior Policy Officer, DECC, Secretariat
Final Report (Appendices)
24 July 2009
Page 52 of 109
Appendix 7: Analysis of NSW Referrals Statistics 2000 - 2009
Part 1 – All referrals 2000 to 2009
In an analysis of data of EPBC Act referrals from the year 2000 to present, the
results show that in that period there have been 559 referrals, of which 27 are
currently active. Table 1 shows a breakdown of those referrals into number by action
type. Figure 1 shows a breakdown of these actions by type and percentage. This
chart shows that 67% of all referrals since 2000 have resulted in non-controlled
actions and 20% in controlled actions.
Table 1: All EPBC Act referrals since 2000.
Total number of referrals (all types)
Controlled Actions (CA)
Non-controlled Actions (NCA)
Non-controlled Action Particular Manner (NCA –PM)
Actions clearly unacceptable
Lapsed
Not Lapsed
Proposals withdrawn
TOTAL
Currently Active
559
113
372
58
2
2
1
11
559
27
1%
2%
10%
20%
CA
NCA
NCAPM
CA withdrawn
other
67%
Figure 1: Actions by percentage.
Final Report (Appendices)
24 July 2009
Page 53 of 109
In analysis of Matters of National Environmental Significance (MNES) triggers
of the EPBC Act, some referrals triggered more than one MNES. Each MNES
has been allowed up to one count per referral. The results of the MNES
triggers are shown in Figure 2. The table shows that threatened species or
ecological communities account for over half of all referrals. It should be
noted that not all referrals that identified a MNES became controlled actions.
Referrals by MNES
5% 4%
5%
2%
18%
0%
57%
9%
CW actions
CW land
CW Marine
Migratory species
National Heritage
Ramsar
Thr spp/ecol. Cmmty
World Heritage
Figure 2: Referrals by MNES triggers.
In an analysis of the data to show referrals by sector (Table 2), the results
clearly show that the sector requiring most referrals since the year 2000 has
been the residential and commercial development sector.
Final Report (Appendices)
24 July 2009
Page 54 of 109
Table 2: Type and amount of referrals (2000-2008).
Referral Type
Agriculture and forestry
Aquaculture
Commercial and residential
development
Commonwealth
Energy generation & supply (nonrenewable)
Energy generation & supply
(renewable)
Exploration (mineral, oil & gas marine)
Exploration (mineral, oil & gas - nonmarine)
Fishing
Manufacturing
Mining
NRM
Private
5
5
Referral Type
Science & research
Telecommunications
12
8
211
20
Tourism & recreation
Transport - air & space
35
3
30
Transport - land
41
13
Transport - water
Urban & commercial new
developments
11
Urban & commercial redevelopment
Waste management
Waste management (non-sewerage)
Waste management (sewerage)
Water management & use
1
1
16
10
32
1
1
1
10
53
44
2
1
Figure 3 shows the referrals and decisions for each sector. The data shows
that the sectors attracting the most controlled actions include the commercial
and residential development, mining and land transport sectors. Referrals that
attracted a Controlled Action and were then withdrawn are not shown.
Final Report (Appendices)
24 July 2009
Page 55 of 109
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Final Report (Appendices)
24 July 2009
CAs by sector
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Figure 3: Decision by sector for referrals (2000-2008).
Page 56 of 109
Total referrals 2000-09
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Figure 4: Total number of referrals and controlled action (CA) decisions per year.
Controlled Actions that resulted in a withdrawn proposal are not shown.
Part 2: NSW activities
In NSW each year there are many developments which are assessed under Part 3A,
Part 4 or Part 5 of the Environmental Planning and Assessment Act 1979. Most of
these are small residential or commercial developments assessed by local councils
and, due to their small scale and low impact, are not usually referred to DEWHA.
The more likely developments to be referred, and to be declared controlled actions,
are the larger, higher impact developments such as large residential/commercial
developments, mines and transport/infrastructure projects. These are usually
assessed under Part 3A of the EP&A Act. There are also a number of developments
which do not require development consent, but which may require a permit or licence
from a government agency. These are assessed under Part 5 of the EP&A Act and
are usually of a lesser scale and impact, and thus less likely to be referred and
declared controlled action.
Table 3: Referred Projects that were assessed under the Bilateral (Jan 07 – June 09).
Under Bilateral
Part 3A
Part 4
Part 5
Final Report (Appendices)
24 July 2009
2007
2008
13
3
1
2009
3
1
0
1
0
0
Total
17
4
1
Page 57 of 109
Table 4: NSW Projects that were assessed under EP&A Act, but not under Bilateral
(Jan 07 - June 09).
Outside Bilateral
Part 3A
Part 4 (DoP only)
Part 4 Councils
Part 5
Final Report (Appendices)
24 July 2009
145
45
>30,000
Numerous
permits,
licences etc
170
77
>30,000
Numerous
permits,
licences etc
87
68
>30,000
Numerous
permits,
licences etc
402
190
>90,000
Numerous
permits,
licences etc
Page 58 of 109
Appendix 8a: Final draft Administrative Procedures in
Relation to Clause 19 of the Bilateral Agreement between the
Commonwealth of Australia and the State of New South Wales
under section 45 of the EPBC Act
Preamble
Clause 11.2 of the Bilateral Agreement between the Commonwealth of Australia and
the State of New South Wales states, in part, that:
“The parties agree to develop administrative arrangements which will
streamline the referral process for proponents. Where possible the
parties will develop administrative arrangements which will allow
proponents to simultaneously satisfy both Commonwealth and State
requirements.”
Clause 19 of the Bilateral Agreement between the Commonwealth of Australia and
the State of New South Wales states that:
“The parties agree to jointly develop administrative procedures to ensure
that the requirements of this agreement are administered efficiently in
accordance with their separate legal requirements. The parties note that
the administrative procedures will provide for consultation with the other
party on draft assessment documentation, including draft assessment
reports. The administrative procedures will also include guidelines on
the exchange of any information about assessments between the
parties”.
This agreement establishes administrative procedures for assessing
environmental impact of controlled actions under the Bilateral Agreement.
the
Recital
In the spirit of cooperation and working in partnership to minimise duplication while
recognising respective responsibilities and legislative processes, the parties to this
agreement will:

Exchange information under these procedures to ensure that the assessment
guidelines, assessment documentation and assessment reports contain
sufficient information for the respective decision-makers to make informed
decisions;

Use their best endeavours to provide response within the statutory timeframes
under which the other party operates.
Definitions:
Assessment Guidelines: Are guidelines issued by the relevant New South Wales
Government Department or agency to the proponent stipulating issues which are
required to be addressed in the proponent’s assessment documentation. These
assessment guidelines include Director Generals requirements (DGRs) or
equivalents.
Final Report (Appendices)
24 July 2009
Page 59 of 109
Assessment Documentation: Includes any reports or statements prepared by the
proponent in response to the assessment guidelines issued by the relevant New
South Wales Government Department or agency. This assessment documentation
includes Environmental Assessment Reports (EARs), Environment Impact
Statements (EISs), Species Impact Statements (SISs) or equivalent.
Assessment Reports: Are issued by the relevant New South Wales Government
Department or agency identified as the consent authority. Assessment reports are an
analysis of the Assessment Documentation as provided by the proponent against the
Assessment Guidelines and any other relevant legislation or regulation as stipulated
by the assessment process.
Terms used in these procedures have the same meaning as in the Bilateral
Agreement, unless the contrary is indicated.
1.
Notification of Delegations and Authorisations
When either the Commonwealth Environment Minister or the New South Wales
Minister delegate functions under the Bilateral Agreement to their respective officials,
or authorised officials to exercise those functions, the details of such delegations will
be notified to the other party. Specific delegations and responsibilities relevant to the
Bilateral Agreement are set out in the attached Schedule of Delegations.
2.
Referral Arrangements
Where actions come to the notice of either party, and it appears likely that the action
will be subject to environmental assessment by both jurisdictions, the parties agree to
consult before formal referral procedures commence where this is practicable.
Consultations will be conducted with the view to streamlining the referral process for
proponents and to simultaneously satisfy both Commonwealth and New South Wales
requirements where this is possible.
3.
Commencement
These procedures will commence for each controlled action when, in accordance
with clause 13.2 of the Bilateral Agreement, the New South Wales Minister notifies
the Commonwealth Environment Minister that New South Wales will assess the
controlled action under the Bilateral Agreement.
The parties note that the accredited assessment processes set out in Schedule 1 of
the Bilateral Agreement include requirements which are additional to the
requirements of the Environmental Planning and Assessment Act 1979, Threatened
Species Conservation Act 1995 and the Fisheries Management Act 1994 and that it
may not always be efficient for New South Wales to conduct an assessment which
meets the additional requirements of Schedule 1.
The Parties further note that where the assessment of an action under the relevant
parts of the relevant New South Wales Act does not meet the additional requirements
set out in Schedule 1, that action cannot be assessed under the Bilateral
Agreement.:
Final Report (Appendices)
24 July 2009
Page 60 of 109
4.
Notification of Contact Officers
As soon as possible after these procedures commence for a controlled action:
(a)
(b)
the New South Wales Minister will provide the name and contact details of the
officer responsible for the environmental assessment of the action under the
Bilateral Agreement (the New South Wales contact officer); and
the Commonwealth Department of the Environment, Water, Heritage and the
Arts (DEWHA) will provide the name and contact details of the officer
responsible for Commonwealth involvement in the environmental assessment
of the action (the DEWHA contact officer).
5.
Liaison between the Parties
Noting the commitments made regarding information exchange in clauses 23 and 24
of the Bilateral Agreement, and for both Parties to be adequately informed so as to
expedite the environmental assessment and approvals processes, it is agreed that
coinciding with the commencement of these procedures:
DoP to coordinate
(a)
New South Wales Department of Planning, even when not the consent
authority, commits to acting as the central contact point and co-ordinating body
between DEWHA and the relevant consent authority;
DEWHA involvement
(b)
(c)
(d)
(e)
Upon decision that a project will be assessed under the Bilateral Agreement,
New South Wales will:
(i)
invite DEWHA to attend a planning focus meeting, if one is to be held;
(ii) request that DEWHA provide within 21 days any assessment
requirements to be included in Assessment Guidelines; and
(iii) ensure that any assessment requirements provided by DEWHA are
incorporated into the relevant Assessment Guidelines.
the New South Wales contact officer will liaise with the DEWHA contact officer
on the timetable for assessment and progress in meeting the timetable;
the New South Wales and the DEWHA contact officers will reach a common
understanding on how matters of national environmental significance and
relevant impacts are best identified and dealt with in guidelines, assessment
documentation, and assessment reports;
the parties will use their best endeavours to agree on the timing and nature of
comments to be made on assessment documentation and assessment reports,
especially in relation to the public release of the assessment documentation.
Further, it is agreed that:
Public notification
(f)
New South Wales will ensure that the public notification of the exhibition of any
assessment documentation accurately addresses matters of national
environmental significance and EPBC Act requirements. New South Wales will
provide DEWHA with copies of draft public notifications prior to publishing any
such notification;
Final Report (Appendices)
24 July 2009
Page 61 of 109
Assessment documentation
(g)
(h)
(i)
(j)
(k)
New South Wales will conduct tests of adequacy on assessment
documentation for all projects assessed under these procedures. New South
Wales will seek DEWHA consensus on the conclusions of all tests of adequacy
prior to the relevant assessment documentation being made available for public
consultation.
To ensure that the relevant test of adequacy statutory timeframes are met:
(i)
The New South Wales contact officer will use their best endeavours to
ensure that the DEWHA contact officer is made aware of when a draft
EAR is expected to be lodged;
(ii) The DEWHA contact officer will notify the New South Wales contact
officer if DEWHA has concerns with the adequacy of the draft EAR within
five working days of receiving the draft EAR and will articulate those
concerns within the statutory timeframe for the test of adequacy (within 21
working days of receiving the draft EAR);
in relation to the assessment of complex proposals, either the New South
Wales contact officer or the DEWHA contact officer may organise tripartite
meetings between the New South Wales contact officer, the DEWHA contact
officer and the proponent, to discuss the relevant aspects of the assessment of
the proposal and ensure any relevant issues are addressed;
the New South Wales contact officer will provide the DEWHA contact officer
with copies of all assessment documentation (including draft and final
guidelines) pertaining to the relevant impacts within the meaning of section 82
of the EPBC Act as soon as reasonably practicable after such assessment
documentation is prepared and before any assessment documentation is
exhibited publicly;
the New South Wales contact officer will liaise with the DEWHA contact officer
on a draft of its Assessment Report for the purposes of ensuring that the
Assessment Report contains enough information about the relevant impacts of
the action to allow the Commonwealth Environment Minister to make a fully
informed decision on whether or not to approve the taking of the action. This
liaison may include the provision of the relevant sections of the Assessment
Report to the DEWHA contact officer or, where practicable, a draft of the entire
assessment report;
on receipt by DEWHA of a draft assessment report, the DEWHA contact officer
and the New South Wales contact officer will facilitate progress towards
completing the Assessment Report;
Proposed conditions of approval
(l)
the New South Wales contact officer and the DEWHA contact officer, in
accordance with clause 18 of the Bilateral Agreement, will seek to recommend
to the decision-maker, where practicable, that consistent conditions are
attached to an approval. This may include liaison between the contact officers
on approval conditions or identification of where possible inconsistencies may
arise between approval conditions and consideration of alternate wording to
avoid these inconsistencies;
(m) the contact officers will also seek to recommend to the decision-maker, where
practicable, that in relation to conditions requiring the development of
environmental management plans, that the conditions are consistent and that
the plans are jointly reviewed to ensure that approval of such plans are
consistent;
Final Report (Appendices)
24 July 2009
Page 62 of 109
(n)
(o)
the DEWHA contact officer will provide the New South Wales contact officer
with a copy of any additional information to be used in deciding whether to
approve the taking of the action and which the Commonwealth Environment
Minister, in accordance with clause 15 of the Bilateral Agreement, provided to
the New South Wales Environment Minister;
noting that, in relation to actions referred prior to the commencement of the
relevant amendments to the EPBC Act on 19 February 2007, the
Commonwealth Environment Minister is unable to approve such actions in the
absence of a notice as described in s130(1B) of the EPBC Act as it was
immediately before 19 February 2007, the New South Wales contact officer will
furnish the relevant DEWHA officer with a copy of the notice as described in
s130(1B) of the EPBC Act as soon as is practicable;
Approval decisions
as soon as practicable after the New South Wales decision-maker has made the final
decision about whether to grant approval of the action, the New South Wales contact
officer will provide the DEWHA contact officer with a copy of the decision, any
additional information the Minister took into account in making the decision and any
conditions; and
as soon as practicable after the Commonwealth Environment Minister has made a
decision under section 133 of the EPBC Act, the DEWHA contact officer will provide
the New South Wales contact officer with a copy of the decision, any additional
information the Minister took into account in making the decision and any conditions.
Note: any advice provided by DEWHA in relation to New South Wales tests of
adequacy, assessment reports, approval conditions or management plans is
provided on a without prejudice basis to ensure that requirements relating to matters
of national environmental significance are adequately addressed. This advice should
not made public or used for any other purpose, nor be considered to commit the
Commonwealth Environment Minister to a particular approval decision.
6.
Comments on Assessment Documentation
DEWHA must provide comments on:
(a) the draft assessment guidelines within 21 working days of receiving a request
from New South Wales, noting that DEWHA is unable to comment on draft
assessment guidelines until the action has been referred and the decision has
been made on whether or not the action is a controlled action under the EPBC
Act, If a request is made from New South Wales before such a decision under
the EPBC Act, DEWHA will respond within 21 days of that decision;
(b) the assessment documentation under Part 3A, Part 4 or Part 5 of the New
South Wales Environmental Planning and Assessment Act 1979, Part 6 of the
New South Wales Threatened Species Conservation Act 1995 or Part 7A of the
New South Wales Fisheries Management Act 1994 , prior to the release of any
draft assessment documentation for public comment within timeframes
consistent with the New South Wales environmental assessment process, as
set out in clauses (g)(i) or (ii) of these administrative procedures, noting that the
New South Wales assessment cannot be finalised until the draft assessment
guidelines are finalised; and
(c) the draft assessment reports within reasonable timeframes agreed between the
contact officers and within timeframes consistent with the New South Wales
environmental assessment process.
Final Report (Appendices)
24 July 2009
Page 63 of 109
DEWHA may provide other comments on assessment documentation.
New South Wales will use its best endeavours to incorporate any comments made by
DEWHA into the assessment documentation.
7.
Publication of Comments
New South Wales agrees not to release to the general public any comments made
by DEWHA on assessment documentation without agreement from DEWHA. New
South Wales may provide to the proponent comments made by DEWHA, but must
not otherwise attribute those comments to DEWHA publicly.
8.
Funding
To assist in the review of the additional implementation costs that it may have
incurred over a 12 month period as described in clause 32 of the agreement, the
New South Wales Government undertakes to provide a report to the Commonwealth,
as soon as practicable after each 12 month period, outlining the costs incurred in
administering the agreement.
9.
Monitoring and enforcement of conditions
The parties agree that they will consult as appropriate on whether efficiencies can be
gained by cooperative monitoring and enforcement of the same conditions attached
to an approval related to matters of national environmental significance.
10.
Contact with Project Proponents and Other Interested Parties
The DEWHA contact officer will advise the New South Wales contact officer of any
formal communications between DEWHA and the proponent, or any other interested
party on the environmental assessment.
11.
Notification of changes to the legislation relating to the operation of the
agreement
Noting the commitments made regarding amendments to legislation in clause 34 of
the Bilateral Agreement, the parties to the agreement will advise each other, as soon
as practicable, of any amendments made to legislation (including subordinate
legislation) insofar as it may affect the operation of the Bilateral Agreement.
12.
Review
These Administrative Procedures will be jointly reviewed at the request of either
party.
Signed for and on behalf of the
Commonwealth Department of the
Environment, Water, Heritage and the
Arts by:
Signed for and on behalf of the New
South Wales Department of Planning
by:
Gerard Early
A/g Secretary
Department of the Environment, Water,
Heritage and the Arts.
Date:
Sam Haddad
Director General
Department of Planning
Final Report (Appendices)
24 July 2009
Date:
Page 64 of 109
Schedule of Delegations
Nominated
entity
Clause
Responsibility/function
9.2
Consult and use their best
endeavours to reach agreement
with other affected jurisdictions
on an appropriate assessment
process
Discussions will take place
between the Commonwealth and
New South Wales in relation to
implementing Attachment 3 of
the COAG Heads of Agreement
on Commonwealth/State Roles
and Responsibilities for the
Environment
Provide a written notice under
s130(1B)
Receiver of s130(1B) notice
9.3
10.3
11.1
Receiver of referrals
11.2
Develop administrative
arrangements which will
streamline the referral process
for proponents
A written notice of a decision that
an action is a controlled action
Receiver of the written notice
12.2
13.2
Notice of whether the action is
expected to be assessed by New
South Wales in the manner
specified in Schedule 1 to this
agreement
Receiver of notice of whether the
action is expected to be
assessed by New South Wales
in the manner specified in
Schedule 1
Final Report (Appendices)
24 July 2009
Parties
Delegate or responsible
officer
New
South
Commonwealth
Wales
AS EAB
NSW
equivalent
Parties
FAS AWD
NSW
equivalent
New South
Wales
Cwth
Minister
Cwth
Minister
Parties
N/A
Contact
officer
N/A
Cwth
Minister
New South
Wales
Minister
New South
Wales
Minister
FAS AWD, or
AS EAB
N/A
N/A
N/A
none
Cwth
Minister
FAS AWD, or
AS EAB
N/A
Contact officer
Director, Referrals N/A
Section
Already dealt with in the
Administrative Procedures
none
Page 65 of 109
Clause
Responsibility/function
14.1
Provide copies of the draft and
final Assessment Guidelines,
Assessment Documentation and
Assessment Report and other
relevant assessment
documentation
Receiver of draft and final
Assessment Guidelines,
Assessment Documentation and
Assessment Report and other
relevant assessment
documentation
Provide additional information on
social and economic matters
Receiver of additional
information on social and
economic matters
Provide information described in
section 136(2)(e) of the EPBC
Act to New South Wales, if it is
used in deciding if an action
should be approved
Receiver of information
described in section 136(2)(e) of
the EPBC Act if it is used by the
Commonwealth Minister in
deciding if an action should be
approved
Each party will inform the other
of any conditions attached to the
approval(s) to take the action
That best endeavours will be
used to put cooperative
arrangements in place for
monitoring compliance
Inform one another before
commencing action to prosecute
Consult where practicable on
conditions to be attached to
approvals
Inform one another before
varying conditions
Develop Administrative
procedures
The review of the bilateral
agreement
14.2
15
16.2(a)
16.2(b)
17
18(a)
18(c)
19
21.1
22.1
22.2
23
Cancellation or suspension of
the agreement
Request to cancel the
agreement
Request and provide information
Final Report (Appendices)
24 July 2009
Nominated
entity
Delegate or responsible
officer
New South
Wales
Commonwealth
New South
Wales
N/A
Contact
officer
Cwth
Minister
Contact officer
N/A
New South
Wales
Cwth
Minister
N/A
Contact officer
Contact
officer
N/A
Cwth
Minister
Contact officer
N/A
New South
Wales
Minister
N/A
none
Parties
Contact officer
Contact
officer
Parties
Contact officer
Contact
officer
Parties
Parties
FAS AWD
AS EAB
Contact officer
NSW
equivalent
Contact
officer
Parties
Contact officer
Contact
officer
Parties
Completed
DEWHA and
NEW
SOUTH
WALES DoP
Cwth
Minister
New South
Wales
Minister
Parties
FAS AWD
NSW
equivalent
No delegation
Contact officer
Contact
Page 66 of 109
Nominated
entity
Clause
Responsibility/function
25
relating to the management or
administration of assessments
covered by this agreement
Negotiate in the event of dispute
26
28
Notify and consult each other on
matters that come to their
attention that may improve the
operation of this Agreement
The parties will consult on the
release of requested (including
under FoI legislation) documents
originating from another party
which are not otherwise publicly
available
Commonwealth
Commonwealth Minister
FAS AWD
AS EAB
New South Wales
DoP
Final Report (Appendices)
24 July 2009
Delegate or responsible
officer
New South
Wales
Commonwealth
officer
Parties
FAS AWD
Parties
Director,
Legislation Policy
Section
Parties
Contact officer
NSW
equivalent
NSW
equivalent
Contact
officer
Minister for the Environment, Heritage and the Arts.
First Assistant Secretary, Approvals and Wildlife
Division
Assistant Secretaries, Environment Assessment
Branches
Department of Planning
Page 67 of 109
Appendix 8b: Bilateral Assessments under Part 3A of the
EP&A Act 1979
Legislative basis and purpose
An Assessment Bilateral Agreement was signed in January 2007 which accredited
the assessment process under Part 3A Environmental Planning and Assessment Act
1979 as being adequate to assess matters of national environmental significance
(NES) under the EPBC Act.
Steps in the process – flow chart

See Figure a: Environmental assessment under Part 3A of the EP&A Act
Timeframes (if not included in the flow chart)
The Department of Planning has statutory timelines which must be met at several
stages in the process. These include:

Issuing Director General’s requirements (DGRs)
28 days

Preparation of environmental assessment by proponent
< 2yrs

Test of Adequacy of Environmental Assessment (EA)
21 days

Copies of submissions to proponent after exhibition
10 days

Preparation of response to submissions (proponent)
no time limit

Assessment of project/concept plan and determination
60 / 90 / 120 days
Relevant policy documents or key policy principles




Assessment Bilateral Agreement under s45 of EPBC Act.
Draft Administrative Procedures – cl19 of the Bilateral Agreement requires
NSW and Commonwealth to “develop administrative procedures to ensure that
the requirements of the Bilateral are administered efficiently in accordance with
their separate legal requirements”. Both governments have collaborated on the
draft Administrative Procedures and they are at an advanced stage.
State Environmental Planning Policy (Major Projects) 2005 sets out the types of
projects that are assessed under Part 3A.
NSW has guidelines which describe the bilateral assessment process and DoP
has internal guidelines for use by assessment officers in fulfilling the
consultation and notification requirements under the Bilateral. It is likely these
will be reviewed once the Administrative Procedures have been finalised.
Information requirements

In assessing an application under Part 3A the Director General issues
environmental assessment requirements (DGRs) which the proponent must
address in preparation of their EA. These requirements include Commonwealth
requirements in relation to matters of national environmental significance (NES)
relevant to the application.

The draft Administrative Procedures specify the consultation and notification
requirements of each government in the assessment process.
Final Report (Appendices)
24 July 2009
Page 68 of 109
Participants and relationships (include nature of role)
Participants:


NSW assessment teams / Commonwealth assessment teams /
Proponents
Interaction between the State and Commonwealth assessment teams is critical
at certain points in the NSW assessment process to ensure that NES matters
are addressed during the assessment in a manner acceptable to the
Commonwealth and so that NSW statutory timelines are met when
Commonwealth comment/input is required (see flow diagram).
Coordination between government agencies when discussing issues with
proponent and on site visits. It is also critical that each government notify the
other of any issues/correspondence from proponents that affect the
assessment.
Current issues





Coordination of referral and application processes – staggered application /
referral slows down process because supplementary DGRs need to be issued.
This impacts on surveys being done by proponent and preparation of the EA.
Timely provision of information – this is essential for both governments to allow
assessment times to be minimised and for NSW statutory timelines to be met.
Consistency of conditions of approval – collaboration on consistent conditions
after assessment and before determination of project.
Consistency in offsetting requirements – e.g. North Cooranbong
Guidelines on assessment of significance – better understanding of
assessment of significance in determining whether an action is a controlled
action, and assessing impacts on NES matters would assist NSW assessment
teams.
Figure a: Environmental assessment under Part 3A of the EP&A Act
STEP 1: Preparation of Environmental Assessment
Proponent lodges a concept plan or project
application with DoP
D-G of DoP consults other agencies on matters
to be addressed in an environmental assessment
(EA) of the proposal
DGRs are issued to the proponent
Proponent prepares and submits to DoP an EA.
Test of adequacy on EA is undertaken by DoP
to determine if the EA is adequate for public
exhibition
Final Report (Appendices)
24 July 2009
DoP requests assessment requirements from
DEWHA. DEWHA to provide these for inclusion in
the DGRs to be issued by DoP to the proponent.
DoP to provide EA to DEWHA. DEWHA to advise
DoP if MNES have been adequately addressed in
EA within 10 working days, or advise DoP that there
are issues within 5 working days and articulate those
issues within 21 working day.
DoP seeks agreement from DEWHA as to adequacy
of EA in relation to MNES.
Page 69 of 109
STEP 2: Exhibition and Consultation
D-G advertises and publicly exhibits the EA for
at least 30 days, notifies relevant parties and
receives public submissions.
Proponent prepares a response to any issues
raised in public submissions and, if required, a
Preferred Project Report (PPR) or addendum if
changes to the project are proposed. The
proponent submits these reports to DoP.
DoP to publicly exhibit any PPR or addendum,
once agreement with DEWHA regarding
adequacy of PPR in addressing MNES has been
reached
DoP to provide copies of all documents received from
the proponent in response to public submissions to
DEWHA.
DEWHA may provide further comment to DoP
regarding adequacy of any documentation in
addressing MNES after the conclusion of the public
comment period
STEP 3: Assessment and determination
D-G prepares an Assessment Report (AR)
DoP to consult with DEWHA regarding adequacy of
AR and relevant proposed approval conditions in
relation to addressing MNES prior to report being
made public.
Once agreement has been reached with
DEWHA regarding adequacy of AR, DoP
provides all required documentation to NSW
Planning Minister
NSW Planning Minister decides to approve or
disapprove the project
DoP provides to DEWHA a copy of the NSW Planning
Ministers decision and copies of any other documentation
used in the assessment process not yet provisioned to
DEWHA
DEWHA provides all documentation to Commonwealth
Environment Minister (or delegate) to enable a decision to
approve or disapprove project to be made.
Final Report (Appendices)
24 July 2009
Page 70 of 109
Appendix 8c: Bilateral Assessments under Part 4 of the EP&A
Act 1979
Legislative basis and purpose
An Assessment Bilateral Agreement was signed in January 2007 which accredited
the assessment process under Part 4 Environmental Planning and Assessment Act
1979 as being adequate to assess matters of national environmental significance
(NES) under the EPBC Act.
Steps in the process

The steps in the flow chart are yet to be agreed between NSW and DEWHA.
Timeframes
Part 4 assessments have either 40 or 60 deemed refusal timeframes. For designated
development where DGRs are issued DoP will seek input from DEWHA. Timeframes
for responses are yet to be agreed for Part 4 DAs, whether EIS or SEE is to be
provided by the proponent.
Relevant policy documents or key policy principles



Assessment Bilateral Agreement under s45 of EPBC Act.
Draft Administrative Procedures – cl19 of the Bilateral Agreement requires
NSW and Commonwealth to “develop administrative procedures to ensure that
the requirements of the Bilateral are administered efficiently in accordance with
their separate legal requirements”. Both governments have collaborated on the
draft Administrative Procedures and they are in an advanced stage.
NSW has Guidelines which describe the bilateral assessment process and DoP
has internal guidelines for use by assessment officers in fulfilling the
consultation and notification requirements under the Bilateral. It is likely these
will be reviewed once the Administrative Procedures have been finalised.
Information requirements




The Commonwealth have accredited Part 4 projects where an EIS, SIS or SEE
is provided.
DEWHA require input to DGRs when an EIS is required but there is no
adequacy test as for Part 3A EAs, and the arrangements between proponents,
councils, DoP and DEWHA is complicated by this.
The interactions and information requirements for Part 4 applications under the
Bilateral are yet to be agreed.
The draft Administrative Procedures specify the consultation and notification
requirements of each government in the assessment process.
Final Report (Appendices)
24 July 2009
Page 71 of 109
Participants and relationships (include nature of role)
Participants: DoP / Commonwealth assessment teams / Councils / Proponents

Interaction between the State and Commonwealth assessment teams and
Councils is critical at certain points in the NSW assessment process to ensure
that NES matters are addressed properly in EIS/SIS/SEE documents, and
during the assessment in a manner acceptable to the Commonwealth. NSW
role in supervising Councils through the process is not yet agreed.

The different requirements of proponents and Councils under Part 4 to those
processes under Part 3A make interactions between DoP, Councils and
DEWHA more difficult to define to the satisfaction of all participants.

These roles and interactions need to be clarified in the Administrative
Procedures.
Current issues





Coordination of referral and application processes – staggered application /
referral slows down process because supplementary DGRs need to be issued.
This impacts on surveys being done by proponent and preparation of the EA.
Agreement on Role of Agencies / Council – the Part 4 assessment has different
steps to Part 3A and Council manage the assessment/exhibition of EIS/SIS.
DoP/DECC role in supervision of Councils through process is not clear.
Timely provision of information – this is essential for both governments to allow
assessment times to be minimised and for NSW statutory timelines to be met.
Consistency of conditions of approval – collaboration on consistent conditions
after assessment and before determination of project.
Guidelines on assessment of significance – better understanding of
assessment of significance in determining whether an action is a controlled
action, and assessing impacts on NES matters would assist NSW assessment
teams.
Final Report (Appendices)
24 July 2009
Page 72 of 109
Appendix 8d: Bilateral Assessment under Part 5 of the EP&A
Act 1979
Legislative basis and purpose
An Assessment Bilateral Agreement was signed in January 2007 which accredited
the assessment process under Part 5 Environmental Planning and Assessment Act
1979 as being adequate to assess matters of national environmental significance
(NES) under the EPBC Act.
Steps in the process

The steps in the flow chart are yet to be agreed between NSW and DEWHA.
Timeframes


DGRs must be issued within 28 days after consultations with proponent on the
location nature and scale of the activity. If it known that the activity is a
controlled action then DEWHA input to the DGRs would be required within that
28 days.
There is no timeframe for determination of the activity once the EIS has been
exhibited and determining authority has considered submissions, agency
consultation and concurrence consultation with DECC.
Relevant policy documents or key policy principles



Assessment Bilateral Agreement under s45 of EPBC Act.
Draft Administrative Procedures – cl19 of the Bilateral Agreement requires
NSW and Commonwealth to “develop administrative procedures to ensure that
the requirements of the Bilateral are administered efficiently in accordance with
their separate legal requirements”. Both governments have collaborated on the
draft Administrative Procedures and they are in an advanced stage.
NSW has Guidelines which describe the bilateral assessment process and DoP
has internal guidelines for use by assessment officers in fulfilling the
consultation and notification requirements under the Bilateral. It is likely these
will be reviewed once the Administrative Procedures have been finalised.
Information requirements




The Commonwealth have accredited Part 5 projects where an EIS is provided.
DEWHA require input to DGRs when an EIS is required but there is no
adequacy test as for Part 3A EAs, and the arrangements between proponents,
DoP and DEWHA is complicated by this.
The interactions and information requirements for Part 5 applications under the
Bilateral are yet to be agreed.
The draft Administrative Procedures specify the consultation and notification
requirements of each government in the assessment process.
Final Report (Appendices)
24 July 2009
Page 73 of 109
Participants and relationships
Participants:
DoP / Commonwealth assessment teams / Proponents / Determining
authorities
Interaction between the State and Commonwealth assessment teams and
determining authorities is critical at certain points in the NSW assessment
process to ensure that NES matters are addressed properly in EIS documents,
and during the assessment in a manner acceptable to the Commonwealth.
NSW role in supervising determining authorities through the process is not yet
agreed.
The different requirements of proponents and determining authorities under
Part 5 to those processes under Part 3A make interactions between DoP,
determining authorities and DEWHA more difficult to define to the satisfaction of
all participants.
These roles and interactions need to be clarified in the Administrative
Procedures.



Current issues





Coordination of referral and application processes – staggered application /
referral slows down process because supplementary DGRs need to be
issued. This impacts on surveys being done by proponent and preparation of
the EA.
Agreement on Role of Agencies / Determining authority – the Part 5
assessment roles and interaction between determining authority, DoP and
DEWHA needs to be clarified.
Timely provision of information – this is essential for both governments to
allow assessment times to be minimised and for NSW statutory timelines to
be met.
Consistency of conditions of approval – collaboration on consistent conditions
after assessment and before determination of project.
Guidelines on assessment of significance – better understanding of
assessment of significance in determining whether an action is a controlled
action, and assessing impacts on NES matters would assist NSW
assessment teams.
Final Report (Appendices)
24 July 2009
Page 74 of 109
Appendix 8e: EPBC Act Referral, Assessment and Approval
processes
Legislative basis and purpose
Chapter 4, EPBC Act – regulates significant impacts on matters of national
environmental significance.
Steps in the process
See attached flow charts (Figure a: The EPBC Referral Process and Figure b: EPBC
assessment and approval processes) and timeframes description below.
Timeframes (if not included in the flow chart)
See attached flow charts for overview – b/d = business days.
Referral Information: ~14 weeks

20 b/d referral

30 b/d recommendation report, including public comment of 10 b/d

20 b/d approval period
Preliminary Documentation (no further info required):

20 b/d referral

direction to publish documentation (>10 b/d from date of direction)

10-20 b/d public comment (length is discretionary)

response by proponent (no time limit)

40 b/d approval period
Preliminary Documentation (further info required):

20 b/d referral

<10 b/d request further info from proponent

proponent response to request (no time limit)

<10 b/d direction to publish documentation (>10 b/d from date of direction)

10-20 b/d public comment (length is discretionary)

response by proponent (no time limit)

40 b/d approval period
*Public Environment Report:

20 b/d referral

optional public comment on draft guidelines (no timeframe for development)

<20 b/d PER guidelines to be given to proponent (post CA or public comments)

proponent response to PER guidelines (must be approved pre-publication)

20+b/d public comment period

proponent response to comments, amend PER

40 b/d approval period
*Environmental Impact Statement:

20 b/d referral

optional public comment on draft guidelines (no timeframe for development)

<20 b/d EIS guidelines to be given to proponent (post CA or public comments)

proponent response to EIS guidelines (must be approved pre-publication)
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


20+b/d public comment period
proponent response to comments, amend EIS
40 b/d approval period
Public Inquiry:

20 b/d referral

Minister appoints commissioner(s) and determines terms of reference

Commissioner(s) determines process and timeframe for inquiry

40 b/d approval period from submission of inquiry report.
Relevant policy documents or key policy principles
EPBC Act policy statements
http://www.environment.gov.au/epbc/guidelines-policies.html
Significant Impact Guidelines – Matters of NES
http://www.environment.gov.au/epbc/publications/pubs/nes-guidelines.pdf
Significant Impact Guidelines – Commonwealth land/actions
http://www.environment.gov.au/epbc/publications/pubs/commonwealth-guidelines.pdf
Species Profiles and Threats Database (SPRAT), including links to recovery plans,
conservation advice and the TSSC listing advice
http://www.environment.gov.au/cgi-bin/sprat/public/sprat.pl
Use of Environmental Offsets under the EPBC Act (draft)
http://www.environment.gov.au/epbc/publications/pubs/draft-environmentaloffsets.pdf
Information requirements
Referral

sufficient information to make an informed decision on whether the action is
likely (“a real or not remote chance or possibility”) to have a significant
(“important, notable, or of consequence, having regard to its context or
intensity”) impact (including direct, indirect, downstream, upstream and
facilitated impacts, including those beyond the control of the proponent) on a
matter or matters of NES

significant impact guidelines provide further guidance for each MNES and
depending on the listing category (Vul – End – Crit End)

recovery plans, conservation advice and listing advice are also referred to
regularly

precautionary principle is a mandatory consideration

when determining significance, Minister may ONLY consider potential negative
impacts on MNES and may NOT consider any potential benefits (e.g. offsets).
Assessment

Referral Information: information contained in the referral.

Preliminary Documentation: referral and additional information if requested.

Public Environment Report: PER guidelines issued as part of assessment.

Environmental Impact Statement: EIS guidelines issued as part of assessment.

Public Inquiry: Minister determines terms of reference.
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Approval

High degree of certainty about impacts, how they’ll be managed and
how/what/where offsets will be delivered.

Mandatory considerations include precautionary/other ESD principles,
economic and social matters and State conditions.

Cannot approve an action that is inconsistent with a recovery/threat abatement
plan, an approved management plan for a WH/NH/Ramsar area, or Australia’s
international obligations.
Participants and relationships
DEWHA – as above.
State agencies – invited to comment at referral and proposed approval; response on
assessment approach/bilateral generally required; contacted by DEWHA for
advice/input on some issues (local govt also sometimes).
Proponent – preparation of documentation, receipt/analysis/response to public
comments.
Public – formal comment periods at referral and on draft assessment documentation,
discretionary comment periods on draft PER/EIS/CoI guidelines and on proposed
approval decision.
Current issues
a.
b.
c.
d.
e.
f.
Balancing benefits of early engagement/referral with high uncertainty: requires
pre-referral engagement between Cth/NSW/proponent to review issues on
case-by-case basis, noting some future prospect for development of handling
‘themes’ (sectoral?).
Inability to consider offsets at referral stage – even highly refined proposals
require assessment if significant negative impacts likely, however expedited
assessment options are available (e.g. ARI ~14 weeks).
Managing uncertainty at referral: options are stop clock to seek info or CA on
precautionary basis, factors include whether info likely to be readily available,
the need for additional field/research work, appropriateness that required info
be subject to public consultation and complexity/volume of additional
information required.
Cth involvement in state processes where MNES issues are relatively
straightforward – if limited range of MNES involved and requirements are clear,
bilateral assessment may not be quickest way through Cth process.
Differing expectations of NSW and Cth re: timing and nature of offsets – current
information presented does not always allow Minister to make an informed
decision about impacts of the proposal at the time of approval – also means Cth
needs to be at table if offset requirements are being discussed informally/preprocess.
Differences in legislative/regulatory/resourcing abilities between NSW and Cth
can influence how each jurisdiction approaches expectations at approval,
conditioning, levels of engagement with proponent and proposal in postapproval phase etc – opportunities for reduced overlap/intensity of postapproval effort, through higher assurance at approval and consistency with
state requirements, is desirable.
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Figure a: The EPBC Referral Process.
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Figure b: EPBC assessment and approval processes.
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Appendix 8f: Local Environment Plans and State
Environmental Planning Policies prepared under Part 3 of the
EP&A Act 1979
Legislative basis and purpose
Local Environmental Plans (LEP) and State Environmental Planning Policies (SEPP)
are prepared under Part 3 of the Environmental Planning and Assessment Act. They
impose standards and development controls, reserve land for open space, schools,
transport or other public purposes, control advertising and protect environmental or
conservation areas and heritage.
LEPs and SEPPs generally comprise a written document and map(s).
LEPs can apply to a whole or part of a local government area. They are prepared by
Council and endorsed or made by the Minister for Planning.
SEPPs are prepared to address matters of environmental planning significance for
the State. SEPPs can serve a range of purposes, including regulating a particular
land use or applying new planning controls State-wide or for part of the State or
regulating a particular development. SEPPs are prepared by the Department of
Planning and the Minister for Planning recommends to the Governor of NSW that a
SEPP be made.
Timeframes
Timeframes are dependant on the nature and complexity of the plan being prepared
and can range from a few months to a few years. The Department is currently
implementing a program to reduce the time taken to prepare new plans.
Relevant policy documents or key policy principles
Ministerial Directions (under section 117 of the Environmental Planning and
Assessment Act), Planning Circulars and Practice Notes provide policy direction.
Planning strategies such as the Metropolitan Strategy are implemented through LEPs
and in some instances SEPPs (e.g. Growth Centres SEPP).
Relevant legislation including the Threatened Species Conservation Act, Roads Act,
Water Management Act, Native Vegetation Act, Heritage Act, National Parks and
Wildlife Act, Rural Fires Act, Fisheries Management Act and the Environmental
Protection and Biodiversity Conservation Act.
Information requirements
Local Environmental Plans (LEPs)
Under the new plan making process to commence in NSW on 1 July 2009, the LEP
making process will commence with the preparation of a Planning Proposal to inform
a Gateway Determination. The planning proposal must address the following matters:

The Need for the planning proposal.

The Relationship to strategic planning framework.

The Environmental, social and economic impact.

The State and Commonwealth interests.
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The Gateway determination will confirm the technical studies to be undertaken.
State Environmental Planning Policies (SEPPs)
A planning submission for the Minister that justifies the proposed SEPP and also
demonstrates why the planning matter is of environmental planning significance for
the State. Appropriate technical studies and reports would support the planning
submission to the Minister.
Participants and relationships
Council:
LEPs: the Council oversees preparation of appropriate technical studies, plan
preparation, consultation with agencies and community consultation.
SEPPs: depending on the purpose and coverage of the SEPP Councils will inform
the preparation process.
Department of Planning:
LEPs: the Department of Planning manages State input, directs agency
consultation, ensures State policies are implemented and oversees plan
making to ensure consistency with strategies and State policies.
SEPPs: the Department of Planning manages all aspect of plan preparation in
consultation with agencies and Councils where appropriate.
DECC provides early input into plan making process to ensure threatened species
are adequately considered.
DEWHA is currently not actively involved in LEP or SEPP making process however
EPBC issues are considered during plan preparation.
Other Agencies: Input during plan preparation.
Community: Input during public exhibition.
Current issues
Determining what sites should be considered for Biodiversity Certification under the
TSC Act and Strategic Approval under the EPBC Act.
Aligning process so issues are addressed early and to remove potential duplication
(e.g. one exhibition process).
Mechanisms to secure conservation outcomes through LEPs or SEPPs are to be
within the powers of the EPA Act.
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State Environmental Planning Policy Flowchart
1. Decision to prepare SEPP by the Director-General or Minister
(section 37 EPA Act)
2. Consultation with Department of Environment and Climate
Change and NSW Fisheries if critical habitat or threatened
species, populations or ecological communities or their habitats
will or may be affected by the draft plan.
(section 34A EPA Act).
3. Consultation with relevant public authorities.
(section 37 EPA Act)
4. Draft SEPP prepared.
5. Exhibition
(subject to discretion of Minister for Planning discretion).
6. SEPP finalised, Minister for Planning recommends to the
Governor of NSW that the SEPP be made.
(Section 39 EPA Act).
Figure a: State Environmental Planning Policy Flowchart.
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Figure b: Local Environmental Plan Process
Note: Process to commence 1 July 2009 and may be subject to minor change
End
End
not proceed
not proceed
Planning proposal
(PP) prepared by
proponent or RPA
RPA formally
considers PP.
PP assessed by
DoP.
LEP Panel
considers PP and
recommendation of
DoP.
RPA resolves to
forward PP to
Minister
determination
to proceed.
Gateway
DG approves PP
for community
consultation.
Conduct further studies and/or revise proposal and resubmit.
RPA seeks to vary
proposals or not
proceed.
Plan is
made
RPA – Relevant Planning
Authority (usually Council)
PP – Planning Proposal
DOP – Department of Planning
Final Report (Appendices)
24 July 2009
Consultation with
public authorities
(State and Federal).
DoP arrange legal
instrument in
consultation with
RPA.
Final PP assessed
by DoP unless
delegation to make
plan given to RPA.
 Consistency with
gateway determination.
 Views of public
authorities.
 Community
submissions.
Page 83 of 109
RPA considers
community and
agency
submissions.
Community
consultation.
Conduct public
hearing if required.
Appendix 8g: BioBanking Assessment under the TSC Act
1995 and BioBanking Bilateral with EPBC Act
The BioBanking legislation (TSC Act and BioBanking Regulation) sets up procedures
to allow the BioBanking Assessment Methodology to be applied to developments
seeking offsets for impacts on biodiversity including threatened species and
endangered ecological communities listed in NSW. These offsets are granted to
developers through a BioBanking Statement which is incorporated into a
Development Consent. BioBanking Statements can accompany Development
Applications for Parts 3A, 4 and 5 matters under the EP&A Act. When a BioBanking
Statement is issued, it turns off the Test of Significance of the TSC Act and
associated assessment.
The BioBanking Assessment Methodology also assesses biodiversity values at
biobank sites; i.e. sites where conservation actions will be undertaken, usually an
offset for development impacts.
Assessment of biodiversity values for either a BioBanking Statement (development
impact) or a BioBanking Agreement (conservation site) includes the composition,
structure and function of ecosystems, and threatened species, populations and
ecological communities, and their habitats (as defined in the TSC Act).
BioBanking operates on a system of credits that are traded – these are ‘created’ at a
biobank site and ‘retired’ at a development site. The BioBanking Assessment
Methodology rules are applied by using the BioBanking Credit Calculator software.
An explanation of how the BioBanking scheme is integrated into the NSW
development control process is outlined in Figure a: BioBanking Assessment
Methodology, below.
At present the BioBanking assessment methodology deals only with matters required
by the TSC Act. In order for the BioBanking scheme to be accepted as part of either
an assessment or approvals bilateral the Australian Government would need to be
convinced that the assessment methodology addresses matters of NES.
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Figure a: BioBanking Assessment Methodology.
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Appendix 8h: Biodiversity Certification under the TSC Act
1995
Legislative Basis and Policy Intent
The biodiversity certification provisions were included in the Threatened Species
Conservation Act in 2004. Biodiversity certification is a mechanism by which the
Minister for Environment and Climate Change may determine that the provisions of
an environmental planning instrument including associated offsets and protective
mechanisms will result in improvement or maintenance of biodiversity values.
Biodiversity certification is optional. Not all environmental planning instruments will
need, or be able, to be certified. To be certified, the Minister must be satisfied that
the environmental standard (i.e. improvement or maintenance of biodiversity values)
is met.
The policy intent of biodiversity certification is to encourage planning authorities when
preparing environmental planning instruments to provide a strategic framework for
biodiversity conservation within the wider landscape. This includes the identification
of locations for future development, identification of important landscape features
(e.g. habitat corridors, climate refugia, high conservation value areas), and for
conserving biodiversity.
What is an environmental planning instrument?
An environmental planning instrument is one of the following:

State Environmental Planning Policy

Regional Environmental Policy

Local Environmental Plan
Institutional relationships
Environmental planning instruments (SEPPs, REPs and LEPs) are made under the
Environmental Planning and Assessment Act 1979. Preparation of planning
instruments for which biodiversity certification is being considered requires
cooperation and coordination between:

Department of Planning

Councils

DECC
Information on planning instruments including practice notes is accessible at
http://www.planning.nsw.gov.au/planningsystem/index.asp
What are the benefits of biodiversity certification?
The effect of biodiversity certification is to ‘switch off’ individual development-bydevelopment species assessment. Biodiversity certification provides for early
consideration of biodiversity issues, greater certainty to developers and other
stakeholders, reduced red-tape and capacity to improve or maintain biodiversity
values across the landscape.
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Specifically, the TSC Act provides that:
(1) Any development for which development consent is required under the
provisions of a biodiversity certified EPI is, for the purposes of Part 4 of the
EP&A Act taken to be development that is not likely to significantly affect any
threatened species, population or ecological community, or its habitat.
(2) An activity to which Part 5 of the EP&A Act applies that a biodiversity certified
EPI provides can be carried out without the need for development consent is,
for the purposes of that Part, taken to be an activity that is not likely to
significantly affect any threatened species, population or ecological community,
or its habitat.
Links with the Australian Government
Biodiversity certification provides a mechanism to facilitate strategic assessments
under the Commonwealth Environment Protection and Biodiversity Conservation Act
1999 and reduce reduce duplication of environmental assessment and regulation
between Commonwealth and State laws.
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DoP or council
proposes to
prepare an
environmental
planning
instrument
Relevant
environmental
studies
undertaken.
Draft
instrument
prepared
DECC
prepares
notice of
proposed
biodiversity
certification
(including
consideration
of matters
prescribed by
TSC Act)
Draft
instrument
and notice of
proposed
biodiversity
certification
given
Submissions
invited
DECC provides advice on the development
of the planning instrument to ensure that
instrument, including other measures will
lead to the overall improvement or
maintenance of biodiversity values
Figure a: Biodiversity certification in NSW.
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Instrument
submitted to
Minister for
Planning for
approval
Minister for
Environment
and Climate
Change
certifies
instrument
(may incl.
conditions)
Notice of the
certification
given to
Director
General of
DoP, on
DECC website
and relevant
councils
Appendix 8i: Issues for consideration – Listing alignment
Reform of alignment processes should focus on four key areas:
1.
Agreeing priorities for action.
2.
Improving content and regularity of communication between DEWHA and
DECC and between Scientific Committees.
3.
Resolving key differences in administrative and policy approaches.
4.
Streamlining listing processes.
Priorities for action should be:

an initial focus on implementing systems to prevent further (future)
misalignment

secondly, NSW and Commonwealth to identify priority species and ecological
communities within two months for joint assessment with a view to better
aligning existing listings, including de-listings and new/up-listings

thirdly, with a view to developing a long term approach to better integrate
listings across jurisdictions, jurisdictional legislation and administrative
processes need to be reviewed to establish greater consistency.
Improving communication between jurisdictions would help build confidence in
decisions made at the other level and enable streamlined documentation and
expedited assessments. This engagement might take the form of:

agreed points of consultation between committees on priority assessment lists
and draft and final listing/conservation advice

provision of the supporting data and reasoning for listings between Committees

joint meetings from time to time, between full committees or between chairs of
the two Committees

having a common member of both committees; and/or asking a TSSC member
to attend state/territory committee meetings as an observer and vice versa.
Key differences in administrative and policy approaches to listing should be resolved.
Key areas include:

clearly articulating the data used in a listing, the interpretation placed on that
data and the reasoning for listing

make communication of listing and conservation/recovery plan decisions more
consistent, including clearly articulating cross-referencing decisions made by
the other jurisdiction and clearly articulating reasoning behind decisions and
definitions

more closely align ecological community definitions and listing processes,
including making definitions and descriptions understandable to users such as
landholders and proponents as well as assessment and compliance officers

agree most appropriate levels for listing: listing of populations and variants
should be avoided where possible, and need not be aligned across jurisdictions

explore whether NSW should continue to limit its consideration of listings to the
element of a population that occurs in NSW, or whether it could consider the
national extent of species before determining whether they should be listed. If a
species is widespread outside NSW and is not eligible for listing at the national
level, perhaps it should not be listed in NSW simply because there are only a
few individuals in NSW.

explore options for joint listings, joint conservation advice or joint recovery
plans.
Final Report (Appendices)
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Streamlined list alignment processes would help improve the ability of each
jurisdiction to keep up with changes made at the other level. This is particularly a
problem for the Australian Government which needs to make more listing decisions
to track developments in all states and territories. Standard documentation
requirements and faster listing assessments would help increase the efficiency of
listings.
With a view to developing a long-term approach to better integrate listings across
jurisdictions, jurisdictional legislation and administrative processes need to be
reviewed to establish greater consistency, in areas such as:

standard categories of threat

standard criteria and thresholds for listing (IUCN)

potential Commonwealth accreditation of state-level listings

cross-jurisdictional review of listing decisions and listing principles.
The differences between State endemic and cross-jurisdictional listings create
confusion. Further, species and endangered ecological communities that occur on
the edge of range are listed in NSW but not nationally. That is, all species and
ecological communities endemic to NSW listed under NSW legislation are not
necessarily listed as threatened under the EPBC Act. Conversely, species and
ecological communities which occur in NSW and are listed under the EPBC Act as
nationally threatened may not be listed under NSW legislation. The reasoning for
these differences needs to be clearly articulated, and incorporated into the staff
induction and training process.
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Appendix 8j: Threatened Species Licensing under the TSC Act
– Exemptions
A licence under the TSC Act is not required for:

clearing of native vegetation that constitutes a routine agricultural management
activity

undertaking routine farming practice activity (other than clearing of native
vegetation)

an action was authorised to be done, and was done in accordance with, a
general licence under section 120, a licence under section 131, 132 or 132A, or
a scientific licence under section 132C of the NPW Act

an action authorised by a property vegetation plan approved under the Native
Vegetation Act 2003

for the carrying out of:
(i) development in accordance with a development consent within the
meaning of the Environmental Planning and Assessment Act 1979
(ii) an activity by a determining authority within the meaning of Part 5 of that
Act if the determining authority has complied with that Part
(iii) an activity in accordance with an approval of a determining authority within
the meaning of Part 5 of that Act if the determining authority has complied
with that Part
(iv) a project approved under Part 3A of the Environmental Planning and
Assessment Act 1979

an action authorised by, and done in accordance with, a conservation
agreement

an action authorised by, and done in accordance with, a joint management
agreement entered into under Part 7 of the Threatened Species Conservation
Act 1995

an action authorised to be done by or under the State Emergency and Rescue
Management Act 1989 or the State Emergency Service Act 1989 and was
reasonably necessary in order to avoid a threat to life or property

an action not done for commercial purposes and was done in relation to a plant
that was cultivated by the person as a hobby or was cultivated by another
person as a hobby

an action done in relation to a plant that was obtained from a person who was
authorised to grow and sell it by a licence issued under section 132

an activity that is permitted under any of the following provisions of the Native
Vegetation Act 2003:
(i)
section 19 (Clearing of non-protected regrowth permitted)
(ii) section 23 (Continuation of existing farming activities)
(iii) section 24 (Sustainable grazing)
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Appendix 8k: Strategic Assessments
Legislative basis and purpose
EPBC Act s146: The Commonwealth Environment Minister may agree in writing with
a person responsible for a policy, plan or program to assess the impacts of that
policy, plan or program (PPP) on matters protected by the EPBC Act.
If the Minister is satisfied that the PPP adequately addresses impacts on matters
protected by the Act, the Minister may endorse the PPP and approve classes of
actions taken in accordance with the policy plan or program.
Consideration of activities on a broader scale, for example state or local government
land use plans, can reduce the need to carry out individual project by project
assessments and approvals.
Steps in the process
See Figures a and b. Legislatively prescriptive steps are minimal.
Staged approval may be possible if necessary, particularly if the PPP is complex or
formative.
Timeframes (if not included in the flow chart)
There are no specified timeframes. No strategic assessment has yet been
completed. Three have been commenced, and expected timeframes for completion
vary from 9 months to 3 years. The complexity of the PPP being assessed, as well as
the stage in development of the PPP that strategic assessment commences will
influence the time frame.
Ideally, strategic assessment is best commenced early in the planning process so
that EPBC matters can be considered in the design phase, enabling the final PPP to
better respond to EPBC concerns.
In addition to the time required once a strategic assessment has been formally
agreed and commenced, experience indicates initial negotiations to enter into a
strategic assessment can be lengthy (over a year).
Relevant policy documents or key policy principles
All relevant EPBC Act policy statements (significant impact guidelines, individual
species guidelines, listing advices etc).
Endorsement criteria for a PPP follow on page 93.
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Information requirements
The legislation is not prescriptive, and information requirements will vary according to
the extent and complexity of the PPP being assessed. Requirements generally have
matters of NES as the key focus, although can be broader, and are best managed if
the strategic assessment is commenced early enough to coincide with state
requirements.
See attached example: Terms of Reference for Strategic Assessment Relating to the
assessment of the impacts of the Program to develop the Growth Centres in Western
Sydney, NSW (page 95)
Participants and relationships (include nature of role)
Fundamentally, a strategic assessment is an agreement between willing partners.
Unlike assessment of an individual project, there is no capacity for the Minister to
demand (call in) a strategic assessment.
The partnership is between DEWHA, and the person (agency) responsible for
implementing the policy, plan or project. In most cases, this will be a government
agency responsible for planning and/or environment.
The party responsible for the PPP is generally also responsible for preparing and
submitting an assessment report to the Minister. Preparation of the assessment
report is facilitated by ongoing collaboration between the parties.
Current issues
In December 2007 COAG agreed that the environment assessments and approvals
component of the COAG National Reform Agenda would be considered under the
auspices of the Business Regulation Competition Working Group (BRCWG). This
work is now being progressed under the 2008 National Partnership Agreement to
Deliver a Seamless National Economy. In July 2008 the agreed to the identification of
opportunities for strategic assessments under EPBC Act 1999 to avoid unnecessary
delays in development approval processes.
DEWHA has been negotiating with DoP and DECC to undertake a strategic
assessment of the Sydney Growth Centres. Negotiations have been protracted for a
range of reasons, including changing personnel, lack of clarity in scope and
objectives, uncertainty regarding the value of strategic assessment in this context
(given the advanced state of NSW planning and approvals), timing and resource
commitments.
Strategic assessment is still in its early days and processes and procedures are not
well defined. Opportunities remain to shape policy development and implementation.
Discussions were held regarding strategic assessments of Albury and Wagga LEPS
over a period of months in 2008/09, however ultimately stalled for a number or
reasons, including lack of resources within Councils to prepare the required
documentation, lack of flexibility to adapt NSW processes to incorporate matters of
NES and perceived limited benefit.
The application of strategic assessment for other PPPs, for example industry based
activities such as forestry or aquaculture, is a further area for exploration.
Final Report (Appendices)
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Figure a: Basic EPBC Strategic Assessment Flow Chart.
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Minister enters into an Agreement with other party
responsible for implementing the policy, program or
plan.
Terms of Reference (ToR) for a report assessing the
impacts of the policy, program or plan prepared in
consultation with other party.
ToR may be
released for
public comment
Minister
ToR amended as
necessary
Draft report prepared against ToR
Draft report open for public comment for at least 28
days
Draft report finalised, taking into account the
comments (if any) received
Final report submitted to Minister for review
Minister
Minister may invite
comments from other
Ministers with
administrative
responsibilities relating
to actions under the plan
Other party
makes necessary
modifications
Minister formulates recommendations for
modification of policy, plan or program where
necessary
Policy, plan or program endorsed by the Minister if satisfied that:
1)
the assessment report adequately addresses the impacts to
which the agreement relates; and
2)
either the recommended modifications of the policy, plan or
program (if any) have been made or any modifications
having the same effect have been made
Approval of actions under the policy, plan or
program by the Minister if appropriate
(approval may include conditions)
Figure b: EPBC Act, Section 146 (Strategic Assessment Provisions) – Flowchart of the
Strategic Assessment Process.
Final Report (Appendices)
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Page 95 of 109
Strategic Assessment – Endorsement Criteria
The EPBC Act permits the Australian Government Minister for the Environment,
Heritage and the Arts to approve the taking of actions or classes of actions in
accordance with an endorsed policy, plan or program (section 146B). The effect of
such a decision is that the approved actions or class of actions would not need
further approval from the Minister under the EPBC Act.
When deciding whether to endorse a policy, plan, or program the Minister must be
satisfied that the assessment report adequately addresses the impacts to which the
agreement relates, and that any recommendations to modify the policy, plan or
program have been responded to appropriately.
In determining whether or not to endorse the Plan the Minister will have regard to the
extent to which the Plan meets the Objects of the EPBC Act. In particular, that it:

protects the environment, especially matters of National Environmental
Significance

promotes ecologically sustainable development

promotes the conservation of biodiversity

provides for the protection and conservation of heritage.
Accordingly, the Plan and Final Report should:

prevent actions from being taken in any location that have an impact on matters
of National Environmental Significance or of high biodiversity or heritage value;
or

where potential impacts can not be avoided, then the impacts should be less
than significant; and

provide for effective management, mitigation or offset of the likely impacts; and

contain an effective system of adaptive management that is independently
audited and publicly reported.
The extent to which the Plan and Final Report adequately incorporates the
precautionary principle and the other principles of ecologically sustainable
development, in particular, intergenerational equity in relation to areas containing
matters the Minister considers have a high likelihood of being potentially eligible for
listing as matters of National Environmental Significance, will also be considered.
In arriving at a decision to approve an action or a class of actions the Minister must
act in accordance with his obligations, including give consideration to:

issues relevant to any matter protected by a provision of the Act

social and economic matters.
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ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT
1999
Part 10 Strategic Assessments
Section 146 (1) Agreement
Relating to the assessment of the impacts of the Program to develop the Growth
Centres in Western Sydney, NSW
between
THE COMMONWEALTH OF AUSTRALIA
and
THE STATE OF NEW SOUTH WALES
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CONTENTS
1.
PARTIES .......................................................................................................................................................... 99
2.
DEFINITIONS ................................................................................................................................................. 99
3.
PREAMBLE ................................................................................................................................................... 100
4.
BACKGROUND ............................................................................................................................................ 100
5.
TERMS OF REFERENCE FOR THE REPORT ....................................................................................... 101
6.
PREPARATION OF THE REPORT ........................................................................................................... 101
7.
CONSIDERATION OF THE REPORT ...................................................................................................... 102
8.
ENDORSEMENT OF PROGRAM .............................................................................................................. 102
9.
APPROVAL OF ACTIONS .......................................................................................................................... 103
10.
VARIATION .................................................................................................................................................. 103
11.
DISPUTE RESOLUTION ............................................................................................................................. 103
12.
TERMINATION ............................................................................................................................................ 103
Attachment A: Locality of the Growth Centres ................................................................................................ 105
Attachment B: Terms of Reference.................................................................................................................... 106
Attachment C: Strategic Assessment - Endorsement Criteria ........................................................................ 109
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1.
PARTIES
1.1. The Parties to this Agreement are:
The Commonwealth of Australia, represented by the Minister for the Environment,
Heritage and the Arts
and
The State of New South Wales, represented by both the Minister for Climate Change
and the Environment and the Minister for Planning.
2.
DEFINITIONS
2.1. Unless stated otherwise in this Agreement, the definitions, meanings and terms
in the Environment Protection and Biodiversity Conservation Act 1999 apply to
this Agreement and its attachments.
2.2. In this Agreement:
DECC means the NSW Department of Environment and Climate Change.
DEWHA means the Australian Government Department of the Environment,
Water, Heritage and the Arts.
DoP means the NSW Department of Planning.
EP&A Act means the Environmental Planning and Assessment Act 1979
(NSW).
Growth Centres means the North West Growth Centre and the South West
Growth Centre as defined by the NSW State Environmental Planning Policy
(Sydney Region Growth Centres) 2006 (and as depicted in the map at
Attachment A).
Minister means the Minister for the Environment, Heritage and the Arts.
Parties means the parties to this Agreement.
Program means urban development in the Sydney Region Growth Centres as
described in the State Environmental Planning Policy (Sydney Region Growth
Centres) 2006 and the relevant biodiversity measures under Part 7 of Schedule 7
to the Threatened Species Conservation Act 1995.
State means the State of New South Wales.
The Act means the Environment Protection and Biodiversity Conservation Act
1999 (Commonwealth).
TSC Act means the Threatened Species Conservation Act 1995 (NSW).
Working days means a business day as measured in Canberra, ACT.
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3.
PREAMBLE
3.1 The Parties agree that the Growth Centres contain significant environmental
values, as well as significant social and economic values in relation to the future
growth of Sydney.
Recognising these significant values and the benefits that may be derived from
implementing the Program, the Parties commit to:
4.
a)
undertaking an assessment of the impacts of actions under the Program on
all matters protected by Part 3 of the Act; and
b)
sharing information and working collaboratively to undertake the activities
within this Agreement.
BACKGROUND
4.1 Section 146(1) of the Act allows the Minister to agree in writing with a person
responsible for the adoption or implementation of a policy, plan or program that
an assessment be made of the impacts of actions under that policy, plan or
program on a matter protected by a provision of Part 3 of the Act. The policy,
plan or program for the purposes of this Agreement is the Program as defined
above.
4.2 The Program has, among other things, identified conservation measures and
development areas to manage and accommodate Sydney’s population growth
through the identification and development of two Growth Centres.
4.3 Assessment of the impacts of the Program will be undertaken through a report
prepared in accordance with section 146(2) of the Act. This will include
preparation of Terms of Reference for a report on the impacts of the Program,
preparation of the report and consideration by the Minister of that report. The
Minister may then endorse the Program under Section 146(2)(f).
4.4 After considering the report, the Minister may decide to endorse the Program if
satisfied that the requirements stated in section 146(2)(f) of the EPBC Act have
been met. Importantly, the Parties acknowledge that the endorsement of the
Program, of itself, does not constitute any approval under the EPBC Act for the
taking of actions for which approval is required under the Act.
4.5 If the Minister decides to endorse the program under section 146(2)(f) of the
EPBC Act, the Minister may then, under section 146B of the Act, decide to
approve the taking of an action, or a class of actions, in accordance with the
Program. The effect of this decision is that actions or classes of actions (if any)
approved under section 146B would not need further approval from the Minister
under the Act. The Parties acknowledge that, where proponents propose to take
an action in accordance with the Program that is not the subject of an approval
under section 146B, they are still capable of seeking approval for that action via
the ordinary channels for assessment and approval established under Parts 7, 8
and 9 of the Act.
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5.
TERMS OF REFERENCE FOR THE REPORT
5.1 DoP shall as soon as practicable seek public comment on the Draft Terms of
Reference (Attachment B) for the preparation of a report on the impacts of
actions under the Program.
DoP shall provide the Draft Terms of Reference for public comment by notice:
a)
posted on the DoP website; and
b)
published in newspapers circulating in NSW.
5.2 The notice must advise that the Draft Terms of Reference are available and how
copies may be obtained, provide contact details and invite public comments on
the Draft Terms of Reference for not less than 28 days.
5.3 The Parties may each notify other organisations or individuals of the public
comment notice and of the availability of the Draft Terms of Reference. Each
Party will make copies of the notice and Draft Terms of Reference available
electronically through its website.
5.4 Following the consideration of public comments on the Draft Terms of
Reference the State will submit to the Minister:
a)
public responses relating to the Draft Terms of Reference;
b)
the Revised Draft Terms of Reference; and
c)
comments on how the public responses have been taken into account in the
Revised Draft Terms of Reference.
5.5 Following receipt of the Revised Draft Terms of Reference, the Minister shall as
soon as practicable notify the State that the Revised Draft Terms of Reference
(for assessment of the impacts of the actions under the Program):
6.
a)
are approved; or
b)
are not approved. In this instance the Minister will:
i)
notify the State of his concerns and invite the State to provide a
further Revised Draft Terms of Reference which take those concerns
into account; and
ii)
within 15 working days of receipt of the further Revised Draft Terms
of Reference mentioned above, either:
(A)
notify the NSW Government of his approval of the further
Revised Draft Terms of Reference; or
(B)
provide approved Terms of Reference that meet his
requirements.
PREPARATION OF THE REPORT
6.1 The State will cause a Draft Report to be prepared in accordance with this
Agreement and the Terms of Reference (Attachment B).
DoP shall provide the Draft Report for public comment by notice:
a)
posted on the DoP website; and
b)
published in news papers circulating in NSW.
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6.2 The notice must advise that the Draft Report is available and how copies may be
obtained, provide contact details for obtaining further information, invite public
comments on the Draft Report and set a period of 28 days within which
comments must be received.
The Parties:
a)
may each notify interested parties of the notice and of the availability of
the Draft Report; and
b)
will each make copies of the notice and Draft Report available
electronically through their websites.
6.3 The State will prepare, following closure of the public comment period, a
Revised Draft Report, or a Supplementary Report to the Draft Report, taking
account of the comments received.
7.
CONSIDERATION OF THE REPORT
7.1 The State will submit to the Minister:
a)
public responses relating to the Draft Report;
b)
the Final Report, comprised of:
i)
the amended Draft Report; or
ii)
the Draft Report and a Supplementary Report;
c)
comments on how the public responses have been taken into account in the
Final Report; and
d)
the Program.
7.2 The Minister will consider the Final Report.
8.
a)
The Minister may make recommendations to the State, as he considers
appropriate, regarding the Final Report and/or the Program.
b)
The State may provide the Minister with advice, or seek clarification from
the Minister on recommendations in subclause (a).
c)
The State will provide to the Minister a summary of the recommendations,
advice or clarification in subclauses (a) and (b), and how those
recommendations, advice or clarification are given effect through
modifications to the Program.
d)
The Minister will consider the revised Program and supporting material
and may accept the Final Report or request further information or
clarification if not satisfied that it addresses adequately the impacts of the
actions to which this Agreement relates.
ENDORSEMENT OF PROGRAM
8.1 The Minister will endorse the Program if satisfied that:
a)
the Report adequately addresses the impacts to which this Agreement
relates;
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9.
b)
any recommended modifications to the Program or modifications having
the same effect have been made; and
c)
the requirements set out in the endorsement criteria in Attachment C are
met.
APPROVAL OF ACTIONS
9.1 If the requirements of Sections 146F-M of the Act and the endorsement criteria
at Attachment C are met, the Minister may approve, or approve with conditions,
the taking of an action or class of actions in accordance with the endorsed
Program and Section 146B of the Act.
10. VARIATION
10.1 This Agreement may only be varied by written agreement (including electronic
communications) between the Parties or otherwise in accordance with the Act.
11. DISPUTE RESOLUTION
11.1 Where there is a dispute between the Parties to this agreement on a particular
matter, the Parties will consult in a spirit of mutual cooperation in relation to
that matter and will use their best endeavours to negotiate a mutually acceptable
resolution.
12. TERMINATION
12.1 This Agreement may be terminated by written agreement (including by way of
electronic communication) between the Parties.
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SIGNED BY:
The Hon. Peter Garrett AM MP
Minister for the Environment, Heritage and the Arts
Dated
The Hon. Carmel Tebbutt MP
Minister for Climate Change and the Environment
Dated
The Hon. Kristina Keneally MP
Minister for Planning
Dated
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Attachment A: Locality of the Growth Centres
NB: This map is for illustrative purposes only. The Growth Centres are defined by the
NSW State Environmental Planning Policy (Sydney Region Growth Centres) 2006.
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Attachment B: Terms of Reference
Terms of Reference for Strategic Assessment of the State Environmental
Planning Policy (Sydney Region Growth Centres) 2006 and relevant
biodiversity measures under Part 7 of Schedule 7 to the Threatened Species
Conservation Act 1995
1.
PURPOSE AND DESCRIPTION OF THE PROGRAM BEING ASSESSED
The Report, referred to in clause 6 of the Agreement, must describe the
Program, including:
a)
b)
c)
d)
e)
f)
2.
how the Program has been developed and its legal standing;
the regional context (natural and human);
the land use planning (zoning) arrangements and outcomes;
the actions that will take place under the Program over the short, medium
and long term. This may include relevant construction and operational
aspects associated with urban development;
a description of the areas proposed for development and those to be
protected within the Growth Centres, as well as other conservation
measures associated with the Program; and
the State management, planning and approval arrangements and the
person(s) or authority responsible for the adoption or implementation of
the Program.
PROMOTING ECOLOGICALLY SUSTAINABLE
BIODIVERSITY CONSERVATION
2.1
DEVELOPMENT
AND
Environment affected by the Program
The Report must provide a detailed description of the environment likely to be
affected by the Program. This description must identify the environmental
assets and characteristics, including biophysical processes, associated with the
area set to be affected by the Program as well as the surrounding terrestrial,
riparian and aquatic environments likely to be directly or indirectly impacted,
including:
a)
components of biodiversity and maintenance of important ecological
processes recognising the potential importance of large intact areas and
landscape connectivity in protecting and maintaining ecological
processes;
b)
listed threatened and migratory species under the Act;
c)
listed ecological communities under the Act;
d)
other matters of national environmental significance and Commonwealth
land under the Act that may be affected by the Program; and
e)
other areas of biodiversity values – e.g. species or ecological communities
listed as threatened under the Threatened Species Conservation Act
1995.
In addition the report will make specific reference to areas of environmental
values that will provide a long term and viable contribution to the conservation
of biodiversity and ecological processes.
2.2
Planning for and promoting ecologically sustainable development
The Report must describe the social and economic factors and considerations
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associated with development under the Program. The Report should include an
analysis of how socio-economic issues and implications might relate to, or
integrate with, environmental values of the Program area and the choice of
alternative options to maintain or enhance these values.
In particular the Report must describe how the following principles of
ecologically sustainable development have been considered in the Program
development process and that the Program promotes these principles as
described in the Act:
a)
Decision making processes should effectively integrate both long-term
and short-term economic, environmental, social and equitable
considerations.
b)
If there are threats of serious or irreversible environmental damage, lack
of full scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.
c)
The principle of inter-generational equity – that the present generation
should ensure that the health, diversity and productivity of the
environment is maintained or enhanced for the benefit of future
generations.
d)
The conservation of biological diversity and ecological integrity should be
a fundamental consideration in decision-making.
e)
Improved valuation, pricing and incentive mechanisms should be
promoted.
The Report must identify the mechanisms in the Program that seek to achieve
ecologically sustainable development including actions to maintain or enhance
biodiversity, having regard for species diversity and abundance, and the extent,
condition, connectivity and protection of native vegetation.
3.
PREVENTING IMPACTS ON MATTERS OF NATIONAL ENVIRONMENTAL
SIGNIFICANCE,
AND
PROMOTING
THE
PROTECTION
AND
CONSERVATION OF BIODIVERSITY AND HERITAGE VALUES
3.1
Nature and significance of impacts
The Report must include a comprehensive analysis of the potential impacts of
the Program on matters protected by the EPBC Act. The analysis must include:
a)
A description and analysis of potential impacts, including any indirect
impacts, with reference to relevant Policy Statements, for example the
EPBC Act Policy Statement 1.1 Significant Impact Guidelines.
b)
An assessment of whether any impacts will be: short, long term or
permanent; local or regional in extent; discrete or cumulative, or
exacerbated by the likely impacts of climate change.
c)
An assessment of the scientific confidence associated with the likelihood
and consequence(s) of potential impacts, including reference to technical
data and other information relied upon in identifying and assessing those
impacts.
3.2
Management, mitigation or offset of likely impacts
The Report must describe the management measures and undertakings (e.g.
on-ground actions regulatory interventions, management plans, market based
instruments) that will be implemented to prevent, minimise, rehabilitate or offset
the potential environmental impacts on matters protected by the Act.
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For management measures and undertakings, the Report must set out:
a)
the approach taken to addressing the impacts of the actions or classes of
actions;
b)
the predicted effectiveness of proposed measures and undertakings and a
description of the methodology used to formulate these
predictions/confidence limits;
c)
ongoing maintenance or operational requirements associated with
proposed measures;
d)
who is responsible for the proposed measures and undertakings;
e)
compliance arrangements for ensuring the measures are undertaken;
f)
the budgetary, regulatory and other arrangements in place or proposed to
implement the measures and undertakings, including ongoing compliance,
maintenance or operational requirements; and
g)
timelines and accountabilities for implementing proposed measures and
undertakings, and associated compliance and maintenance requirements.
4.
ADAPTIVE
MANAGEMENT:
MANAGING RISK
ADDRESSING
UNCERTAINTY
AND
The Report must identify key uncertainties associated with the management
measures and undertakings for protecting matters protected by the Act, and the
responses for addressing these uncertainties and adapting to changed
circumstances.
The Report must set out:
a) key uncertainties (for example uncertainty about timing, effectiveness, or
capacity to enforce measures);
b) the responses to addressing these uncertainties;
c) the circumstances in which the Program will be reviewed and modified (for
example new information or changing standards); and
d) the procedures which would be undertaken to review, modify or abandon the
Program, including regular reviews.
5.
AUDITING AND REPORTING
The Report must set out monitoring, public reporting processes and auditing to
be undertaken in the Program’s implementation.
6.
ENDORSEMENT CRITERIA
The Report must describe how the Program meets the criteria set out in
Attachment C – Endorsement Criteria.
7.
INFORMATION SOURCES
For information used in the assessment, the Report must state:
a)
the source of the information;
b)
how recent the information is; and
c)
the reliability and limitations of the information.
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Attachment C: Strategic Assessment - Endorsement Criteria
When deciding whether to endorse a policy, plan, or program the Minister must be
satisfied that the assessment report adequately addresses the impacts to which the
agreement relates, and that any recommendations to modify the policy, plan or
program have been responded to appropriately.
In determining whether or not to endorse the Program the Minister will also have
regard to the extent to which the Program meets the Objects of the Act. In particular,
that it:

protects the environment, especially matters of national environmental
significance;

promotes ecologically sustainable development;

promotes the conservation of biodiversity; and

provides for the protection and conservation of heritage.
Accordingly, the Program should:

avoid actions from being taken in any location that have an impact on matters
of national environmental significance or of high biodiversity or heritage values
where ever possible; or

where potential impacts can not be avoided, then the impacts should be
minimised; and

provide for effective mitigation or offset where the likely impacts cannot be
avoided; and

contain effective arrangements for adaptive management for conservation
measures; and

contain a system for monitoring, auditing and publicly reporting on
implementation.
The Minister will also consider the extent to which the Program adequately:

incorporates the precautionary principle;

incorporates other principles of ecologically sustainable development, such as
intergenerational equity; and

identifies and includes management measures for matters the Minister
considers to have a high likelihood of being potentially eligible for listing as
matters of national environmental significance.
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