Key Points: The Act will streamline the planning and environmental assessment and approvals process for major transport projects.
The Major Transport Projects Facilitation Act 2009 (Vic) commenced operation on 1 November 2009 and supports the State Government's Victorian Transport Plan and $38 billion worth of planned investment in transport projects in Victoria. On 27 January 2010, the Peninsula Link Project, linking the Mornington Peninsula Freeway and Eastlink at Carrum Downs to the Mornington Peninsula Freeway at Mount Martha, was the first project to be declared under the Act.
As this project had already undergone assessment under the Environment Effects Act 1978 (Vic), the declaration did not apply the environmental assessment and approvals provisions set out in Parts 3 and 8 of the Act. However, for the majority of projects declared in the future, these provisions will apply to streamline the planning and environmental assessment and approvals process.
In this article, we consider the key elements of the assessment and approvals process for declared projects and examine the extent to which the Act is likely to deliver on its promise of significantly reducing the time required to undergo environmental assessment and obtain key planning and environmental approvals for major transport projects.
Ability to grant approvals
A significant feature of the Act is the ability of the Planning Minister to make approval decisions under 11 pieces of legislation in respect of key planning, environmental, heritage, water and road management approvals following assessment under one of the 2 available assessment methods set out in the Act. This is to be contrasted with the existing Environment Effects Statement (EES) process under the Environment Effects Act which is an assessment and not an approvals process with respect to projects having potential for significant impact on the environment.
Under the Environment Effects Act, the Minister's Assessment is provided to relevant statutory decision-makers who are required to take the Assessment and the Minister's recommendations into account in determining whether or not to grant approval and if so on what conditions. The Minister's recommendations are not binding on a statutory decision-maker whose only obligation under the "Ministerial Guidelines for Assessment of Environmental Effects under the Environment Effects Act" is to consult with the Minister where the decision-maker proposes not to adopt the recommendations of the Minister.
Under the new Act, the Minster can make over 20 different types of approval decisions specified in Schedule 1, which include:
- consent under the Coastal Management Act 1995;
- works approval under the Environment Protection Act 1970;
- permit and licence under the Flora and Fauna Guarantee Act 1988;
- heritage permit and consent under the Heritage Act 1995; water licences under the Water Act 1989; and
- planning permit; and
- decision to prepare, approve and adopt a planning scheme or amendment under the Planning and Environment Act 1987.
Type of projects which may be declared
The Act applies to transport projects declared by the Governor in Council on the recommendation of the Premier as a project to which either the entire Act or the Act (other than Parts 3 and 8, applicable to environmental assessment and approvals) applies.
A "transport project" is broadly defined as a project for the development of "transport infrastructure" and associated "non-transport infrastructure". "Transport infrastructure" includes road infrastructure, rail infrastructure, a port, infrastructure that can be used for the movement of persons or goods and a facility at which goods can be loaded or unloaded from rolling stock or heavy vehicles as well as a facility used for the temporary storage of such goods.
Before making a recommendation, the Premier must first assess the transport project as a project of economic, social or environmental significance to the State or a region of the State having regard to project declaration guidelines. These Guidelines as published by the Premier on 3 December 2009 are expressed in broad terms and include consideration of whether the transport project involves a considerable capital investment and/or is of a size and complexity such that it would benefit from the approvals process and delivery powers contained in the Act.
Once a project has been declared as a project to which the entire Act applies, the project proponent is required to prepare a project proposal for submission to the Minister. The Minister must then determine which of the 2 available assessment processes under the Act will apply: the impact management plan (IMP) assessment process or the comprehensive impact statement (CIS) assessment process.
IMP and CIS Assessment Processes
While the Act provides two separate assessment processes, the circumstances in which the Minister may determine that the IMP assessment process may be followed is extremely limited. Any declared project requiring:
- a works approval under the Environment Protection Act 1970;
- a heritage permit or consent under the Heritage Act 1995; or a
- planning permit or planning scheme amendment under the Planning and Environment Act 1987; will need to undergo the CIS process.
The shorter and simpler IMP assessment process is only available where none of the above approvals are required and the land required for the project is already owned by a public authority, vested in the Crown or reserved for a public purpose under a planning scheme. Except for a road widening project within an existing road reservation, it is difficult to envisage any significant transport project as satisfying the stringent criteria required for the IMP process.
All projects not satisfying the criteria for an IMP process will need to undergo the extensive CIS process which is not dissimilar to the existing EES process under the Environment Effects Act. Some important differences however are set out below.
Unlike the EES process where timeframes are specified as a guide, the Act specifies strict statutory timeframes for almost each step in the CIS assessment process.
These time-frames are specified for actions taken by the Minister, the Assessment Committee established to assess the CIS and, in some instances, the project proponent. However, no time is specified for the preparation of the project proposal following declaration of a project or preparation by the project proponent of a CIS or revised CIS to address issues raised by the Assessment Committee following consideration of submissions.
Leaving aside the preparation of these documents, the time-frames specified for the taking of actions total approximately 53 weeks (or 265 business days).
The Minister is required to prepare scoping directions for a CIS specifying the kinds of impacts and other matters that must be addressed. Public comment and submission on draft scoping directions may only be sought in exceptional circumstances or where the CIS process is the subject of an approval bilateral agreement with the Commonwealth Environment Minister under the Environment Protection and Biodiversity Conservation Act 1999.
The Act also enables the Minister to amend the scoping directions in exceptional circumstances without statutory limitation on the time within which any such amendment can be made.
Lack of a technical reference group
A technical reference group (TRG) is normally established for a project requiring an EES comprising representatives from government departments, statutory authorities, municipal councils and other stakeholders in the project. One of the key roles of the TRG is to provide advice and assistance to the proponent on requisite approvals, relevant policy provisions and the need for and adequacy of technical studies and reports.
The CIS assessment process does not provide for the establishment of a TRG to guide the proponents in the preparation of the CIS. As a matter of practice however a project proponent will still need to consult with the relevant government departments, statutory authorities and municipal councils in preparing the CIS and in ensuring that all relevant issues are addressed.
The Minster is required to establish an Assessment Committee to assess the CIS in accordance with Ministerial terms of reference. The Minister has broad powers to decide what may be included in the Committee's terms of reference, which may include limitation on who may make submissions at a preliminary hearing, and limiting the scope of matters it considers.
While the provision of terms of reference limiting the scope of matters to be considered is not new in the context of a panel appointed under the Environment Effects Act or an advisory committee appointed under the Planning and Environment Act, it is new for considering submissions on a planning scheme amendment. In ACF v Minister for Planning  VCAT 2029 the then President of VCAT, Justice Morris, held that no terms of reference can be given to a panel appointed to consider submissions on a planning scheme amendment under the Planning and Environment Act with the provisions of that Act providing the requisite terms of reference for such a task.
Requirement to amend the CIS in accordance with Assessment Committee's Issues Report
Following public exhibition of the CIS, the Assessment Committee is required to prepare and provide to the project proponent a written report summarising the issues relevant to the project which the proponent must address in a revised CIS. The project proponent may also address any additional issues raised in submissions.
Once prepared, the revised CIS must be publicly exhibited and available for further submission by persons who may be adversely affected by the revisions. This is a deviation from the current EES assessment process where there is no similar requirement to prepare an amended or revised EES in response to submissions or issues raised by a panel under the Environment Effects Act.
On receiving the Assessment Committee's report and recommendations, the Planning Minister must determine whether to grant all or some of the applicable approvals necessary for the project. In making an approval decision, the Planning Minister must have regard to, but is not compelled to comply with, mandatory applicable criteria under the relevant law to which a specific approval relates.
This affords the Minister power to grant an approval in circumstances where an approval may not otherwise be capable of being granted under the applicable law. For example under the Planning and Environment Act where a referral authority objects to the grant of a permit, the responsible authority must refuse the permit. However under the Act, the Minister is not bound by the same restriction and need only "have regard to" the referral authority's comments.
The Act is an important and significant piece of legislation which will streamline the planning and environmental assessment and approvals process for major transport projects. The extent to which the CIS assessment process will significantly reduce the time for assessment and approval is however yet to be tested. While in theory significant time savings ought to be achieved, this may not be borne out in practice particularly once you factor in the time required to prepare the project proposal, the CIS and revised CIS in response to the Assessment Committee's issues report.
However, the ability for the Planning Minister to grant approximately 24 different approvals under 11 pieces of legislation is clearly a key benefit of the Act for project proponents. The Act also removes any right to appeal or review decisions relevant to the assessment and approvals process except for approval decisions by the Minister, and thereby removes the risk of delay to the CIS assessment process associated with any third party challenge.
 At this stage neither the IMP or CIS assessment processes are accredited for the assessment of impacts on matters of national environmental significance as part of the bilateral agreement dated 20 June 2009 between Victoria and the Commonwealth. It is understood that the Minister for Transport has requested accreditation of the IMP and CIS assessment processes under the existing bilateral agreement, however no decision has been made yet. In any event, such agreement is an assessment bilateral agreement only and does not authorise the grant of approvals for the purposes of the EPBC Act and would not, therefore, qualify as a basis for public exhibition of the scoping directions.