Introduction
Queensland is one step closer to its one stop shop for environmental approvals following the passing of the Sustainable Planning (Infrastructure Charges) and Other Legislation Amendment Act 2014 on 4 June 2014 (“Amendment Act”). The Amendment Act will give effect to the draft Approval Bilateral Agreement (“Bilateral Agreement”) between the State of Queensland and the Commonwealth, if executed. Click here to see our previous alert regarding the Bilateral Agreement.
The Amendment Act will amend the State Development and Public Works Organisation Act 1971 (“SDPWO Act”) to facilitate the implementation of the Bilateral Agreement.
What will this mean for project proponents?
Currently, major (and some less-than-major) projects are often required to obtain two separate environmental approvals - one at State level, and another at Commonwealth level for impacts on Matters of National Environmental Significance (“MNES”). Should the Commonwealth and the State execute the Bilateral Agreement, such projects will be able to seek both approvals via one State-administered assessment and approval process, accredited by the Commonwealth.
Accreditation of Queensland approval process
The Bilateral Agreement, as currently drafted, will accredit two Queensland environmental impact assessment and approval processes, being:
- the authorisation of an action by an environmental approval for a “coordinated project” under new Part 4A of the SDPWO Act, introduced by the Amendment Act; and
- the authorisation of an action by an environmental authority for a resource activity under Chapter 5 of the Environmental Protection Act 1994 (Qld) (“EP Act”). Necessary minor definitional amendments have been made to the Environmental Protection Regulation 2008 (Qld) to incorporate MNES. We anticipate that further amendments to the EP Act will soon follow.
Bilateral project declaration
The Amendment Act inserts a new Part 4A into the SDPWO Act in order to establish the accredited, State-administered assessment and approval process for projects otherwise requiring EPBC Act approval, as contemplated by s46(2A) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”).
In conjunction with the proposed amendments in the EPBC Amendment (Bilateral Agreement Implementation) Bill 2014, these amendments will enable the Queensland Coordinator-General (“CG”) to make a ‘bilateral project declaration’ under Part 4A (“Bilateral Project”), declaring that a project declared as a ‘coordinated project’ under Part 4, is also able to be assessed under the new Part 4A for the purposes of the Bilateral Agreement.
The impacts of such projects on MNES may then be assessed and approved by the CG (“Bilateral Approval Process”). The CG will have the power to do this, if the project is within the scope of the Bilateral Agreement and it will have an impact on matters protected by part 3 of the EPBC Act, other than impacts on Commonwealth heritage places overseas and actions carried out by the Commonwealth itself. However, the CG may not use the Bilateral Approval Process for a project if the Commonwealth Minister has already decided the project should not be a controlled action under the EPBC Act, has refused to approve the activity, or if the action would have unacceptable impacts on the environment.
A summary of the Bilateral Approval Process under the SDPWO Act is set out below. This process is intended to run in parallel with the assessment and approval by the CG of the project as a coordinated project (unless that has already taken place).
Draft Protected Matters Report
Proponents who obtain a “bilateral project declaration” under the SDPWO Act will be required to prepare a draft protected matters report (“PMR”) to the satisfaction of the CG. The CG will also have the power to request, in writing, that the proponent include information about a stated matter in the PMR.
Public notification
The PMR will be publicly notified by the proponent. The notification must be conducted at the same time as the public notification of the EIS under the coordinated project process, unless that process has already been completed.
A finalised PMR is then prepared by the proponent for the CG. The final PMR must summarise the accepted public submissions and state how submissions generally have been addressed. The CG has the discretion to request further information to make a decision relevant to the assessment criteria pursuant to section 54W of Part 4A.
Grant of approval and conditions
Should the CG approve the project (by granting an ‘environmental approval’) under Part 4A, the CG will have the power, under section 54U, to impose conditions that are necessary or convenient to protect MNES impacted by the project, or repair or mitigate damage to them.
Amending, Cancelling and reinstating an approval
In addition to applying to the CG to make changes to a project, a condition or a project proponent, a proponent may write to the CG requesting the cancellation of an environmental approval at any time. Alternatively, the CG may, by written notice, cancel or suspend an approval:
- for a contravention of a condition, if the contravention has had a significant impact on an environmental matter and it is reasonable to do so to protect the environmental matter;
- if the project has had, will have or will be likely to have, a significant impact on an environmental matter protected by the approval and the impact was not identified during the assessment of the project and the approval would not have been issued had it been identified at that time; or
- where the information provided to the CG during the assessment process did not accurately identify the likely impact of the project and was inaccurate, because of the proponent’s negligence, or deliberate act or omission.
The CG must outline the grounds for the proposed cancellation or suspension before it can take effect. The proponent will have at least 14 days to prepare a written response. The CG must then, within 14 days, give the proponent written notice of his or her decision and the reasons for it. If the decision is to suspend the approval, the notice must state the length of time for the suspension. A proponent may, within 2 months of the cancellation or suspension of an approval, request that it be reinstated.
Offences and compliance
Section 54ZK of the Amendment Act describes the penalties that apply in relation to non-compliance with an environmental approval or a condition. The penalties specified are broadly consistent with the offence provisions for breach of an approval under section 142 of the EPBC Act.
The Amendment Act provides for the application of the provisions of the EP Act with regard to causing environmental harm and executive officer liability for the undertaking of a Bilateral Project. These provisions are modelled on similar provisions in Part 4, Division 8 of the SDPWO Act in relation to approvals for coordinated projects which do not require other State approvals.
Third party challenges to environmental approvals
Only the people specified in the Amendment Act are able to bring a proceeding in the Planning and Environment Court for a declaration about the lawfulness of undertaking a coordinated project, including a Bilateral Project.
These provisions, limiting who is able to make a third party challenge, are again modelled on similar provisions in Part 4, Division 8 of the SDPWO Act.
Existing projects and transitional provisions
As currently drafted, the Bilateral Agreement will not apply to a proposed action in Queensland that was referred for a controlled action decision under the EPBC Act before the Agreement’s commencement date, if at that date:
- the referral of the action has not been withdrawn or lapsed under the EPBC Act; and
- the Minister has not made a decision to approve the project (or refuse approval) under sections 130 and 133 of the EPBC.
If a project is declared a Bilateral Project under Part 4A of the SDPWO Act and it’s EIS and public notification stages have been completed prior to the commence of the Bilateral Agreement, a proponent will not be required to prepare a PMR.
If a project has not yet been referred to the Commonwealth for approval, upon the commencement of the Bilateral Agreement, a proponent will be able to request that the CG declare its project to be a “bilateral project declaration” for the purpose of the Bilateral Agreement. If the project is an eligible project according the requirements in the Bilateral Agreement, it must follow the Bilateral Approval Process.
Public consultation on the Agreement
Public consultation on the Bilateral Agreement has just been completed - click here to view the submissions. The aim of the Federal and State Government is to have the Bilateral Approval Process in effect by September 2014.
For more information regarding the Bilateral Agreement or corresponding amendments to legislation, please contact Matthew Austin, Lauren Kirkwood or Sarah Bell of King & Wood Mallesons.
