Environmental Impact Assessment Law in the ACT

1. Environmental Impact Assessment Law in the ACT James Prest BA (Hons)(Adel), LLB(Hons)(ANU), Grad Dip. Leg. Prac. (ANU) Barrister and Solicitor, ACT Supreme Court Barrister High Court and Federal Court Principal Solicitor, Environmental Defender’s Office ACT Inc. EDO – Protecting the environment through the law

2. Environmental Defender’s Office • A community legal centre specialising in public interest environmental law • Mission: To empower the community to protect the environment through law • Functions • Legal Advice and Representation • Policy and Law Reform • Community Education ENVIRONMENTAL DEFENDER’S OFFICE (ACT)

3. EDO Casework Guidelines • Free initial advice is available to everyone via the EDO environmental law advice line. • The EDO will consider providing further assistance if: • The matter involves a public interest environmental issue. • The matter involves a real threat to the environment. • The EDO has the resources to properly advise. • The matter has reasonable prospects of success. ENVIRONMENTAL DEFENDER’S OFFICE (ACT)

4. What are the main ACT environmental laws applying in the ACT ? • Land (Planning and Environment) Act 1991 • Planning and Land Act 2002 • Environment Protection Act 1997 • Nature Conservation Act 1980 • Tree Protection (Interim Scheme) Act 2001

5. Commonwealth environmental laws in the ACT • Environment Protection and Biodiversity Conservation Act 1999 • Australian Capital Territory (Planning and Land Management) Act 1988 • The associated National Capital Plan(administered by the National Capital Authority) – on “National Land” and “designated areas”.

7. Designated Areas under the National Capital Plan • The National Capital Authority (NCA) has administrative responsibility for control of development on ‘designated areas’ of land identified as such in the National Capital Plan (NCP), • These are “areas of land that have the special characteristics of the National Capital”. • The area of bushland known as the Inner Hills is a designated area under the National Capital Plan. • Prior to Amendment No.46 of the National Capital Plan, the proposed Eastern Route of the GDE crossed into this designated area. Since the amendment, part of that area has been excised or removed from the NCP. • [1] “The Inner Hills Designated Area includes Black Mountain, Mount Ainslie, Mount Majura, Red Hill, O'Connor Ridge, Bruce Ridge, Mount Taylor, etc.

9. The Land (Planning and Environment) Act 1991 • The main statute dealing with land use planning and lease administration in the ACT • Part 2 The Territory Plan • Part 4 Environmental impact assessment and inquiries • Part 5 Land administration (leases and Public Land) • Part 6.2 Approval of development • Part 6.3 Orders against unauthorised development • Part 7 Appeals to AAT

10. Definition of Development under s.222 • development means activity in relation to land that consists of 1 or more of the following activities: • (a) the erection, alteration or demolition of a building or structure; • (b) the carrying out of earthworks or other construction work • (c) work that would affect the landscape of the land • (d) a use of the land for home business that is not expressly authorised by a current lease; • (e) a use of the land for a prescribed activity not expressly authorised by a current lease; • (f) if the land is unleased Territory land—a use of the land that is not authorised by a current licence or permit granted for the land under an Act; • (g) the erection, fixing or displaying of a sign or advertising material on the land, or on a structure or building on the land, • (h) a variation of a lease of the land; but does not include a use of unleased Territory land by or on behalf of the Territory for a purpose for which it was used before the commencement of this Act.

11. The Territory Plan • Provided for by Commonwealth PLM Act 1988 at time of self-government • Specifics contained within Land Act, Part 2 • Consists of Map plus Written Statement • Part A: Planning principles and policies • Part B: Land use policies eg broadacre; Rural; hills, ridges and buffer areas; river corridors. • Part C: Overlay provisions eg public land— wilderness areas marked ‘Pa’, national parks ‘Pb’, nature reserves ‘Pc’

14. Environmental Impact Assessment Law in the ACT • Part 4 of the Land Act sets out the regime for environmental impact assessment (EIA) of development proposals. • A sequential system of approvals is provided for. • Starts with Preliminary Assessment, which may lead to either a Public Environment Report (PER) or an Environmental Impact Statement (EIS).

15. When is a PA required ? • defined decision means a decision of the Territory, the Executive, a Minister or a Territory authority about a proposal, being a proposal in relation to which a Minister is empowered under part 2, part 5 or part 6, an Act other than this Act or a subordinate law— • (a) to direct that an assessment be made; or • (b) to establish a panel to conduct an inquiry.

16. In Plain English…that means EIA can be required for the following (defined) decisions: • development applications • draft variations to the Territory Plan • the grant of leases by the government • subdivisions or consolidations of leases • the preparation or revision of draft plans of management for public land- eg national parks, nature reserves— EIA at the discretion of the Conservator of Flora and Fauna. • The Environment Protection Act provides that EIA can be required for activities (not subject to development application) that might cause significant environmental harm.

17. More about when a PA is required • Mandatory PA where proposal is listed in Appendix II of Territory Plan (s.113) • Minister also has discretion to require preparation of a PA (s.113) • The minister may exempt a proposal listed in Appendix II if satisfied that: the proposal does not represent a significant change on an existing situation or it has already been the subject of another form of assessment

18. Mandatory Preliminary Assessment where listed in Territory Plan Appendix II PA is mandatory for such proposals including: • buildings of significant height, or within a Mountains and Bushlands; River Corridors; or Plantation Forestry land use area; • Variation to the Territory Plan - A decision which would change land use policy from Urban Open Space; Hills and Ridges; Mountains and Bushlands; River Corridors; or Plantation Forestry • major roads where adjacent to sensitive land use policies (zones) or involving new major earthworks; • clearing of more than 0.5 ha of remnant native vegetation; • specified manufacturing industries (eg chemicals) • waste disposal facilities.

19. What must a PA address ? (Schedule 3 of Act) • description of the project site and surrounding region, • the existing environmental conditions, • the potential environmental impacts (physical environment, human environment, non-human biological environment) • the potential benefits and disadvantages of the project. • Summary: Can the benefits to the community be said to offset any unavoidable permanent or temporary adverse effects? • ACTPLA supplementary Guide

20. How is environmental impact defined (s.111) • (a) environmental effect on a community; • (b) physical, biological or cultural transformation of an area; • (c) environmental effect on the social system or the ecosystems of an area; • (d) change to the aesthetic, recreational, scientific or other environmental qualities, or values, of an area; • (e) environmental effect on any premises or land or the surroundings of any premises or land, that has heritage significance; • (f) the endangering, or further endangering, of a community or an area; • (g) the endangering, or further endangering, of any species of fauna or flora;

21. (cont’d) • (h) long-term environmental effects including those with potential to place demands on the social system; • (i) curtailing of the range of beneficial uses of the environment; • (j) pollution; • (k) problems associated with the disposal of waste; • (l) increased demands on natural resources that are, or are likely to be, in short supply; • (m) change to the values or lifestyles of particular groups and communities or to existing social relationships; • (n) socioeconomic effect.

22. When is a PA mandatory ? • Classes of defined decisions have been prescribed where a proposal: • is known or suspected to have a high probability of environmental impact; • by itself or as part of a cumulative effect may lead to exceedance of an accepted ambient standard for environmental conditions; • may have potential to be inconsistent with the objectives of the Territory Plan;or • by its nature is known to arouse broad public concerns.

23. The Minister’s broad discretion to avoid further EIA • “An assessment” is defined as either a Public Environment Report or an Environmental Impact Statement (EIS). (s.119) • S. 121 Land Act : “the relevant Minister may direct that an assessment be made of the proposal if, in the opinion of the relevant Minister based on reasonable grounds, the environmental impact of the proposal would be of sufficient significance.”

24. Further Assessment has rarely been required • By 31 December 2002: Of 164 Preliminary Assessments completed • 4 projects required assessment in a PER • Zero projects subject to EIS • Inquiries under Division 4.4 – none have so far been required. Source: EDO ACT (2003) Environmental Law Handbook, p.39.

25. What must a PER or EIS address ? • Must address matters as formally directed by the Minister and as prescribed in s.120 of the Land Act and Land (Planning and Environment) Regulations • the environmental effects of the proposal, • possible alternatives to the proposal • technical assessment of the proposed environmental standards and safeguards. The Direction Notice must be published in Canberra Times and the Legislation Register

26. More about content of PER/EIS • A detailed technical assessment in relation to each means of achieving the objectives of the proponent … including • the environmental impact of achieving the objectives by those means; and • the effectiveness of the adoption of any environmental standards); and • the consequences of not adopting the environmental standards specified. • Sources, Methodology, Research (if any); • Names and Qualifications of authors. Source: Land Act Regulations, Reg. 5.

27. Public consultation requirements • Procedures for public consultation differ between PERs (s.124) and EISs (s.125). • For a PER the extent of consultation required is at Minister’s discretion • Public consultation on a draft EIS for a minimum 20 business days is mandatory. • Process involves production of a Draft EIS and later a Final EIS which addresses any comments made by the public

28. What decisions can be made by the Minister after production of a PER or EIS ? • A direction to produce further information (s.129) • A request that the proponent revise the report (this may be rejected if reasons are supplied) • Minister must prepare an Evaluation Report as follows under s.130(1): • Report should include comment on whether scope of PER/EIS was as required • Minister’s comments on likely impacts • Minister’s recommended mitigation conditions • Report is to be tabled in the Assembly and made available for public inspection.

29. What is required in PER and EIS that isn’t required in a Preliminary Assessment • Proponent’s study must address possible alternatives to the project

30. What about Exemptions from Assessment ? • The Act allows the Minister to make general or narrow exemptions for specified decisions or classes of decisions from Assessment (s.134)

31. Variations of the Territory Plan (Division 2.3) • If an area of land is needed for a use that is inconsistent with the current land use policy, ACTPLA can initiate a variation to the TP by preparing a draft variation (Div.2.3). • must consult with the Heritage Council and the NCA. • If it affects public land must consult the Conservator of Flora and Fauna • Must make it available for public comment • ACTPLA must also consider any available environmental assessments or inquiries

32. Draft variation process • ACTPLA will submit the variation to the executive together with a report about the consultation processes. Within 28 days, the executive then refers the draft variation to the Legislative Assembly Planning & Enviro committee. • The committee considers the DV and makes recommendations to the executive. The executive may then approve the variation to the TP, taking into account the recommendations of the committee. • If the executive does not approve the variation, it may refer it back to ACTPLA with directions to, revise the variation, undertake further consultation, withdraw the variation, or consider any relevant environment report.

34. The Object of the Territory Plan (s.7(1)) • “The object of the plan shall be to ensure, in a manner not inconsistent with the national capital plan, that the planning and development of the ACT provides the people … with an ecologically sustainable, healthy, attractive, safe and efficient environment in which to live, work and have their recreation.” • Further “The Territory, the Executive, a Minister or a Territory authority shall not do any act, or approve the doing of any act, that is inconsistent with the plan.” (s.8)

36. Matters to be considered in deciding upon development application s.231 Land Act • Comments of Nature Conservator or other body to whom proposal may have been referred • Objections and submissions • Preliminary Assessment documents and evaluation report • Comments of ACTPLA and Planning and Land Council if the development is called in by the Minister

37. What about the Conservator of Flora and Fauna • Conservator is a public servant appointed under s.7 of Nature Conservation Act 1980 • Has powers under that Act, the Land Act , and the Tree Protection (Interim Scheme) Act. • Must be consulted in relation to Draft Variations of the Territory Plan especially if public land is to be affected (s.16) • Conservator has power to recommend to ACTPLA that Territory Plan be varied to enable areas of public land to be added as Reserves (eg nature reserve, national park) or varied (boundaries) or deleted. (s.192)

38. EIA in New South Wales • Level of assessment depends on whether it is classified as ‘designated development’ or not; • If Not then a Statement of Environmental Effects must accompany the Development Application • If a Designated Development then EIS must accompany the DA • Designated Development – listed as such in the EP&A Regulations eg. chemical factories, waste incinerators, large marinas, quarries and sewage treatment works or additional types of development as listed in a LEP, REP or SEPP.

39. What must an EIS include in NSW? • An analysis of the proposed development, including • a description of the activity, • a description of the environment which is likely to be affected by the activity, • an analysis of the likely impacts of the activity, and • an analysis of measures proposed to reduce the environmental impacts of the activity; • a full list of approvals that must be obtained before the activity can be carried out; • an analysis of any feasible alternatives to the carrying out of the activity ; and • a justification for carrying out of the development in the manner proposed, having regard to environmental, social and economic considerations, including the principles of ecologically sustainable development.

40. Appeal rights in relation to development approval decision making • NSW – where proposal relates to designated development (EIS required), there are merits review rights in Land and Environment Court • ACT – Objectors to an application who believe that they are substantially and adversely affected by the decision. • AAT Appeal rights in relation to decisions listed in schedule 4, part 4.2

41. NSW Comparison - What is the role of mitigation prescriptions in the assessment ? • A Part 5 determining authority (ie a public authority proposing must assess the significance of the activity as proposed not as modified by any conditions designed to mitigate environmental impacts Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 ACT law is silent on the question of role of mitigating conditions in the final assessment

42. Biodiversity protection in the EIA process • In NSW, if a development is likely to significantly affect threatened species, populations or ecological communities or their habitat then a Species Impact Statement must be prepared and supplied with the DA. • An 8 part (ecological) test is applied to decide this. An objective test (Timbarra Protection Coalition v Ross Mining NL, (1999) 46 NSWLR 55 (Court of Appeal)

44. Selected clauses of the NSW 8 part test • in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed, • whether an area of known habitat is likely to become isolated from currently interconnecting or proximate areas of habitat for a threatened species, population or ecological community, • whether TS, population or community, or habitats, are adequately represented in conservation reserves in the region,

45. Law Reforms Required in ACT • Reduce scope for exemption making under Land (Planning and Environment) Act 1991 • Restrict excisions from nature reserves by executive act (through Draft Variations) • Integrate biodiversity considerations into EIA process in Land Act • Move to Mandatory EIS not mandatory Preliminary Assessment for certain developments

46. EDO Environmental Law Advice Line Free initial legal advice on planning and environmental law matters Monday-Wednesday 10.30am-5.30pm Telephone: 02 6247 9420 website: www.edo.org.au/edoact ENVIRONMENTAL DEFENDER’S OFFICE (ACT) ENVIRONMENTAL LAW ADVICE LINE