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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

Final Report of 109 24 July 2009

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The views and opinions expressed in this publication are those of the authors and do not necessarily reflect those of the Australian Government or the Minister for the Environment, Heritage and the Arts or the Minister for Climate Change and Water. While reasonable efforts have been made to ensure that the contents of this publication are factually correct, the Commonwealth does not accept responsibility for the accuracy or completeness of the contents, and shall not be liable for any loss or damage that may be occasioned directly or indirectly through the use of, or reliance on, the contents of this publication.

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

2.0 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

3.0 Opportunities for Improvement and Proposed Operational Refinements

29

3.1 Opportunities for Improvement 30

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

4.0 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 25


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.


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. Communication and coordination - to achieve sensible integration and

alignment of jurisdictional legislative requirements, assessment and decision-making processes;

2. Offsets - development and implementation of a common approach to offsets; 3. Strategic planning - development and implementation of an agreed approach

to strategic assessments and biodiversity certification; 4. 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;


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.


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: 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.


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.


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.


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.


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).


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 co-ordination 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.)


(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.


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).


Four strands of operational activity are summarised: 2.1 Landuse planning – including Part 3 of the EP&A Act, biodiversity certification

and EPBC Act strategic assessment 2.2 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

2.3 Listing of threatened species, ecological communities and key threatening processes

2.4 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 site-based threatened species and ecological community assessment under NSW legislation, thus streamlining the development control process while still providing for optimal biodiversity conservation.



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.

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.


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.


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.


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.



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.

PART 3A ASSESSMENTS

PART 4 ASSESSMENTS

PART 5 ASSESSMENTS

DESIGNATED DEVELOPMENT

ADVERTISED DEVELOPMENT

COMPLYING DEVELOPMENT Likely environmental impact assessed

S111 EP&A Act

Pre-application - Project formulation

Provision of relevant guidelines / policies Notify proponent of EPBC Act referrals

Significant impact PART 3A


Application (s73(4) EP&A Act)

Key issues identified NES matters identified

Application

Application

Application

Not significant impact

DGRs Issued (s75F EP&A Act

EA Requirements for all key issues incl. NES matters

Director General’s Requirements

DGRs Issued For SIS if significant effect

on TS

EIS SIS if significant effect

on TS Review of Environmental

Factors (REF) 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)

Pre

par

atio

n o

f E

nvi

ron

men

tal

Ass

essm

ent

Public Exhibition (s75H(3)(4) EP&A Act)

EA on public exhibition DEWHA comment on EA

Public Exhibition

Advertised

Public Exhibition

Submissions Public /agencysubmissions on EA Submissions

Submissions

Submissions

Response to Submissions / Preferred Project Report

Proponent responds to public / agency submissions and prepares PPR (if required)

Pu

blic

Exh

ibit

ion

Assessment (s75G EP&A Act

Assessment of all key issues Assessment of NES matters

Evaluation

Evaluation

Evaluation

Determination / Conditions of Approval (s75J EP&A Act

Assessment of all key issues Assessment of NES matters (Draft TS Guidelines,

Biobanking, Offsetting policy)

Determination

Determination

Certification

Determination

Post Approval Post Approval Post Approval Post Approval

Ass

essm

en

t &

D

eter

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n

Description: Major projects (e.g. State significant major infrastructure, mines, commercial developments, manufacturing) determined by Minister for Planning / PAC / DG Planning 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

Figure 2: Assessments under the EP&A Act

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 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 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

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.


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 by November each year

Close of public nominations At least 40 (typically March of the

following year) All valid nominations referred to the independent Threatened Species Scientific Committee (TSSC).

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*

Within 90 * (unless extended)

Recovery plan developed if required*

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


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.

Nomination received by Committee

Committee accepts or rejects nomination

Committee assesses nomination and makes preliminary determination to support or not support the proposal

Scientific Committee publishes notice of its preliminary determination and invites submissions

Committee considers submissions and make proposed final determination

Committee makes final determination

Committee receives submissions on preliminary determination

NSW SCIENTIFIC COMMITTEE PROCESS

INTERACTION WITH NSW MINISTER

Committee advises Minister of proposed final determination. Minister may refers proposed final determination back to Scientific Committee for further consideration

Committee notifies Minister and Director General of any rejected nominations

Committee notifies Minster and Director General of upcoming preliminary determination

Committee notifies the Minister and DECC of upcoming final determination

Committee advises Minister of receipt of nomination

Committee prioritises nominations Minister may give Committee advice on prioritisation

Wit

hin

6 m

on

ths

At

leas

t 30

day

s

Committee publishes notice of its final determination

If proposal supported schedules amended by notification in Gazette


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?


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

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

s91 Licence not required. s94(5) Certificate issued

Application and SIS exhibited

DG considers application. Licence may be refused or granted with or without conditions

Action is not on land that is critical habitat

Action on land that is critical habitat


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. Communication and coordination - to achieve sensible integration and

alignment of jurisdictional legislative requirements, assessment and decision-making processes.

2. Offsets - development and implementation of a common approach to offsets. 3. Strategic planning - development and implementation of an agreed approach

to strategic assessments and biodiversity certification. 4. 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 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.


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;


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).


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 site-by-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 decision-making within the different parameters set by jurisdictional policies and legislative obligations can lead to divergence on issues such as species- versus landscape-based 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.


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.


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.


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.


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.


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.



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.

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

Final Report (Appendices) of 109 24 July 2009

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)


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. 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.

2. 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. 3. 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.


4. The review will seek input from state and territory governments, members of the community and industry.

5. 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.


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.


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.


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.


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. improve co-ordination between TSC Act, EP&A Act and EPBC Act processes including the timing of referrals by proponents

b. 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. 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. align current approaches at both a Commonwealth and State level to both impact assessment (significance questions) and offsetting

e. 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. Identify the approaches and mechanisms whereby strategic approvals may be assessed and implemented

b. Identify the steps required and likely timeframes for these strategic assessments including options to streamline timeframes.

1.3.4 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.


The review should identify:

a. Operational principles to streamline approvals (i.e. early consultation on major projects, defining data needs etc)

b. 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

c. 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.

1.3.5 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. 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

b. 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

c. 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

d. 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


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.


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


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) 559

113Controlled Actions (CA)

372Non-controlled Actions (NCA)

58Non-controlled Action Particular Manner (NCA –PM)

2Actions clearly unacceptable

2Lapsed

1Not Lapsed

11Proposals withdrawn

TOTAL 559

27Currently Active

20%

67%

10%

2%

1%

CA

NCA

NCAPM

CA withdrawn

other

Figure 1: Actions by percentage.


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

4% 5%

2%

18%

0%

9%57%

5%

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.



Table 2: Type and amount of referrals (2000-2008). Referral Type Referral Type Agriculture and forestry 5 Science & research 12 Aquaculture 5 Telecommunications 8 Commercial and residential development 211 Tourism & recreation 35 Commonwealth 20 Transport - air & space 3 Energy generation & supply (non-renewable) 30 Transport - land 41 Energy generation & supply (renewable) 13 Transport - water 11 Exploration (mineral, oil & gas - marine) 1

Urban & commercial new developments 1

Exploration (mineral, oil & gas - non-marine) 1 Urban & commercial redevelopment 1 Fishing 1 Waste management 1 Manufacturing 10 Waste management (non-sewerage) 16 Mining 53 Waste management (sewerage) 10 NRM 44 Water management & use 32 Private 2

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.

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Figure 3: Decision by sector for referrals (2000-2008).


Total referrals 2000-09

0

20

40

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120

2000

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Total referrals

Total CA's per year

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 2007 2008 2009 TotalPart 3A 13 3 1 17Part 4 3 1 0 4Part 5 1 0 0 1


Table 4: NSW Projects that were assessed under EP&A Act, but not under Bilateral (Jan 07 - June 09). Outside Bilateral Part 3A 145 170 87 402Part 4 (DoP only) 45 77 68 190Part 4 Councils >30,000 >30,000 >30,000 >90,000Part 5 Numerous

permits, licences etc

Numerous permits, licences etc




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 the environmental impact of controlled actions under the Bilateral Agreement. 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.


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.:


4. Notification of Contact Officers As soon as possible after these procedures commence for a controlled action:

(a) 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

(b) 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) 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. (c) the New South Wales contact officer will liaise with the DEWHA contact officer

on the timetable for assessment and progress in meeting the timetable; (d) 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;

(e) 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;


Assessment documentation

(g) 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);

(h) 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;

(i) 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;

(j) 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;

(k) 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;


(n) 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;

(o) 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.


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.

Sam Haddad Director General Department of Planning

Date: Date:


Schedule of Delegations

Delegate or responsible officer

Clause

Responsibility/function

Nominated entity

Commonwealth New South Wales

9.2 Consult and use their best endeavours to reach agreement with other affected jurisdictions on an appropriate assessment process

Parties AS EAB NSW equivalent

9.3 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

Parties FAS AWD NSW equivalent

Provide a written notice under s130(1B)

New South Wales

N/A Contact officer

10.3

Receiver of s130(1B) notice Cwth Minister

Contact officer

N/A

11.1 Receiver of referrals Cwth Minister

Director, Referrals Section

N/A

11.2 Develop administrative arrangements which will streamline the referral process for proponents

Parties Already dealt with in the Administrative Procedures

A written notice of a decision that an action is a controlled action

Cwth Minister

FAS AWD, or AS EAB

N/A 12.2

Receiver of the written notice New South Wales Minister

N/A none

Notice of whether the action is expected to be assessed by New South Wales in the manner specified in Schedule 1 to this agreement

New South Wales Minister

N/A none 13.2

Receiver of notice of whether the action is expected to be assessed by New South Wales in the manner specified in Schedule 1

Cwth Minister

FAS AWD, or AS EAB

N/A



Clause


Nominated entity


Provide copies of the draft and final Assessment Guidelines, Assessment Documentation and Assessment Report and other relevant assessment documentation

New South Wales

N/A Contact officer

14.1

Receiver of draft and final Assessment Guidelines, Assessment Documentation and Assessment Report and other relevant assessment documentation

Cwth Minister

Contact officer N/A

Provide additional information on social and economic matters

New South Wales

N/A Contact officer

14.2

Receiver of additional information on social and economic matters

Cwth Minister

Contact officer N/A

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

Cwth Minister

Contact officer N/A 15

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


N/A none

16.2(a) Each party will inform the other of any conditions attached to the approval(s) to take the action

Parties Contact officer Contact officer

16.2(b) That best endeavours will be used to put cooperative arrangements in place for monitoring compliance


17 Inform one another before commencing action to prosecute

Parties FAS AWD AS EAB

NSW equivalent

18(a) Consult where practicable on conditions to be attached to approvals


18(c) Inform one another before varying conditions


19 Develop Administrative procedures

Parties Completed

21.1 The review of the bilateral agreement

DEWHA and NEW SOUTH WALES DoP

FAS AWD NSW equivalent

22.1 Cancellation or suspension of the agreement

Cwth Minister

22.2 Request to cancel the agreement

No delegation


23 Request and provide information Parties Contact officer Contact



Clause


Nominated entity


relating to the management or administration of assessments covered by this agreement

officer

25 Negotiate in the event of dispute Parties FAS AWD NSW equivalent

26 Notify and consult each other on matters that come to their attention that may improve the operation of this Agreement

Parties Director, Legislation Policy Section

NSW equivalent

28 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 Minister for the Environment, Heritage and the Arts. FAS AWD First Assistant Secretary, Approvals and Wildlife

Division AS EAB Assistant Secretaries, Environment Assessment

Branches New South Wales DoP Department of Planning


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.


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

D-G of DoP consults other agencies on matters to be addressed in an environmental assessment

(EA) of the proposal

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

DGRs are issued 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.

DoP requests assessment requirements from DEWHA. DEWHA to provide these for inclusion in

the DGRs to be issued by DoP to the proponent.

Proponent lodges a concept plan or project application with DoP


STEP 2: Exhibition and Consultation

STEP 3: Assessment and determination

D-G prepares an Assessment Report (AR)

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.

Once agreement has been reached with DEWHA regarding adequacy of AR, DoP

provides all required documentation to NSW Planning Minister

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.

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 provide copies of all documents received from the proponent in response to public submissions to

DEWHA.

DoP to publicly exhibit any PPR or addendum, once agreement with DEWHA regarding

adequacy of PPR in addressing MNES has been reached

DEWHA may provide further comment to DoP regarding adequacy of any documentation in

addressing MNES after the conclusion of the public comment period


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.




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.



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.

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.




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.



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.

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)


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-environmental-offsets.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.



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. 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?).

b. 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).

c. 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.

d. 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.

e. 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/pre-process.

f. 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 post-approval phase etc – opportunities for reduced overlap/intensity of post-approval effort, through higher assurance at approval and consistency with state requirements, is desirable.

Figure a: The EPBC Referral Process.


Figure b: EPBC assessment and approval processes.


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. Final Report (Appendices) of 109 24 July 2009

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.


State Environmental Planning Policy Flowchart

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).

1. Decision to prepare SEPP by the Director-General or Minister (section 37 EPA Act)

Figure a: State Environmental Planning Policy Flowchart.



determination to proceed.

RPA resolves to forward PP to Minister

DoP arrange legal instrument in consultation with RPA.

RPA considers community and agency submissions.

RPA seeks to vary proposals or not proceed.

Final PP assessed by DoP unless delegation to make plan given to RPA.

Plan is made

Conduct public hearing if required.

Community consultation.

DG approves PP for community consultation.

Consultation with public authorities (State and Federal).

LEP Panel considers PP and recommendation of DoP.

PP assessed by DoP.

RPA formally considers PP.

not proceed

Gateway

Planning proposal (PP) prepared by proponent or RPA

End

not proceed

Conduct further studies and/or revise proposal and resubmit.

Figure b: Local Environmental Plan Process Note: Process to commence 1 July 2009 and may be subject to minor change

End

RPA – Relevant Planning Authority (usually Council)

Consistency with gateway determination.

Views of public authorities. PP – Planning Proposal

DOP – Department of Planning Community submissions.

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.


Figure a: BioBanking Assessment Methodology.


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-by-development 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.



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.

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

Instrument submitted to Minister for Planning for approval Minister for Environment and Climate Change certifies instrument (may incl. conditions)

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

Notice of the certification given to Director General of DoP, on DECC website and relevant councils

Figure a: Biodiversity certification in NSW.


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.


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.


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)


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.


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) of 109 24 July 2009

Figure a: Basic EPBC Strategic Assessment Flow Chart.


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

Final report submitted to Minister for review

Minister formulates recommendations for modification of policy, plan or program where

necessary

Minister

Other party makes necessary

modifications

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

Draft report finalised, taking into account the comments (if any) received

Minister enters into an Agreement with other party responsible for implementing the policy, program or

plan.

Minister may invite comments from other Ministers with administrative responsibilities relating to actions under the plan

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.


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.


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


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


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.


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:

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.

4. 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.


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):

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.

6. 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. Final Report (Appendices) of 109 24 July 2009

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.

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.

8. 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;


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.

9. 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.


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


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.


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) how the Program has been developed and its legal standing; b) the regional context (natural and human); c) the land use planning (zoning) arrangements and outcomes; d) 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;

e) 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

f) the State management, planning and approval arrangements and the person(s) or authority responsible for the adoption or implementation of the Program.

2. PROMOTING ECOLOGICALLY SUSTAINABLE DEVELOPMENT AND

BIODIVERSITY CONSERVATION

2.1 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


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.


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: ADDRESSING UNCERTAINTY AND

MANAGING RISK

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.



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.

operational review of the threatened species … · operational review of the threatened species...

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