Introduction

The Federal and New South Wales governments signed a new assessment bilateral agreement on 20 December 2013 (NSW assessment bilateral) to create a single environmental assessment process under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The previous NSW assessment bilateral expired in January 2012.

This is part of the Federal Government's 'one-stop shop' policy to create a single environmental assessment and approval process in each state and territory for projects that are likely to have a significant impact on matters of national environmental significance.

The NSW assessment bilateral followed the execution of a new assessment bilateral agreement between the Federal and Queensland Governments on 13 December 2013, while further assessment bilateral agreements and approval bilateral agreements are on exhibition or are being developed by the Federal Government and each other state and territory.

Proponents of major projects that are likely to have an impact on any of a number of environmental aspects prescribed under the EPBC Act should pay particular attention to this development. Recent NSW projects - such as mining development, wind farms, highway upgrades, rail infrastructure and residential development - have had to undergo separate NSW and Commonwealth assessment processes. Such projects may now benefit from the streamlined process.

When is Commonwealth assessment and approval needed?

If a proposed development impacts on a 'matter of national environmental significance', it must be assessed by the Commonwealth Minister for the Environment under the EPBC Act – despite any state assessment and approval process that may apply. A matter of national environmental significance is a matter protected by a provision of Part 3 of the EPBC Act. Those matters include:

  • World Heritage properties
  • National Heritage places
  • wetlands of international importance
  • nationally listed threatened species and communities
  • nationally listed migratory species
  • nuclear action
  • the marine environment
  • the Great Barrier Reef Marine Park
  • coal seam gas or large coal mining developments with a significant impact on a water resource
  • activities involving Commonwealth land.

The bilateral agreement framework

Bilateral agreements may be in respect of the:

  • assessment of actions(section 47 of the EPBC Act) – enabling the Commonwealth Minister for the Environment to determine whether to approve of the taking of an action based on the accredited assessment process undertaken by a state or territory
  • approval of actions(section 46 of the EPBC Act) – obviating the need for Commonwealth approval entirely, where a state or territory has approved of the action in accordance with an accredited approvals process.

Some duplication arises as a result of the further level assessment at the Commonwealth level. The bilateral assessment agreements aim to limit the need for this second layer of assessment. If a bilateral approval agreement is ultimately entered into in NSW, a decision to approve the taking of a project by the State Authority pursuant to that bilateral agreement, will remove the need for an approval of that project under the EPBC Act.

As flagged in our December 2013 Sustainability and Climate Change Quarterly Update, memoranda of understanding (MOU) in relation to 'removing duplication in assessment and approvals processes, while maintaining environmental outcomes' were signed by the Federal Government and the Northern Territory, South Australia, Western Australia, Victoria, Tasmania and the Australian Capital Territory.

Entering into or renewing bilateral agreements under the EPBC Act means the state or territory assesses all the potential impacts of a development and there is no need to undergo a further assessment by the Commonwealth.

These MOUs followed a report by the Productivity Commission, released in December 2013, which recommended moving towards:

a ‘one project, one assessment, one decision’ framework for environmental approvals, that includes strengthening bilateral assessment and approval agreements between the Commonwealth and the states and territories.

What does the NSW assessment bilateral change?

The NSW assessment bilateral covers the following types of development:

  • state significant development1
  • state significant infrastructure2
  • modification applications for state significant development3
  • modification applications for transitional Part 3A projects.4

The NSW assessment bilateral agreement does not apply to actions determined by the Commonwealth Environment Minister to be 'controlled actions' prior to the commencement date of the bilateral agreement.

Where projects are assessed in accordance with the requirements of Schedule 1 of the NSW assessment bilateral agreement, the Commonwealth Minister for the Environment will be able to determine whether or not to approve of the project under the EPBC Act on the basis of the assessment report submitted by the NSW Minister for Planning and Infrastructure.

A copy of the assessment bilateral agreement between the Commonwealth and NSW can be found here.

Process under the NSW assessment bilateral

Click here to view flowchart

What's next?

At this stage, there are no bilateral agreements in respect of approving actions. However, the Federal Government has notified its intention to develop approval bilateral agreements with the states and territories.

The NSW assessment bilateral agreement applies in respect of the law that is current at the commencement date of the bilateral agreement. If the NSW Government's proposed planning reforms occur, a new NSW assessment bilateral agreement may need to be agreed.