The Environmental Protection Amendment Bill 2024 was introduced to WA Parliament on Thursday 15 August 2024. The Bill will implement several of the legislative reforms recommended by last year’s Independent Review of WA Environmental Approvals Processes and Procedures (Vogel-McFerran Review), including its recommendations to:
- change the composition of the Environmental Protection Authority (EPA) to a skills-based board;
- introduce a requirement for the Minister to publish a statement of expectations to the EPA; and
- amend section 41(3) of the Environmental Protection Act 1986 (WA) to enable parallel processing of other required approvals during environmental assessment.
The Bill also abolishes the right to appeal against decisions by the EPA not to assess a proposal.
The amendments proposed by the Bill are part of the broader, ongoing environmental approvals reform process relating to the Vogel-McFerran Review recommendations. Other reforms are already underway, including a number of ongoing non-statutory and cultural changes, such as the February appointment of Tim Marney in the new role of Coordinator General for environmental approvals, and changes made to the referral of scheme amendments by the Environmental Protection Amendment Regulations 2024 published in March.
In this article, we discuss some of the key amendments proposed by the Bill and the likely practical implications for those using and relying on the WA environmental approvals system. For some, the reforms may not be the source of dramatic change hoped for, particularly if a project also needs planning approval. As always, the answers are in the detail.
Parallel processing of approvals
The headline reform, in line with the Government’s emphasis on the reduction of green tape, is the introduction of parallel processing of project approvals.
Currently, section 41 of the Act prohibits any decision-making authority (DMA) from making a decision “that would have the effect of causing or allowing the proposal to be implemented” while an EPA assessment is underway. This constraint is not lifted until the DMA is notified that the proposal has been approved by the Minister for implementation.
Although section 41 is not intended to delay other assessment processes but only the decision, the effect of the existing constraint can be significant. It covers not only decisions to grant planning and ancillary environmental approvals (such as subdivision and development approvals, grant of works approvals and permits to clear native vegetation) but also extends to land access decisions, such as the grant of Crown leases and new mining tenements connected to a proposal. Given that EPA assessments can take many years to complete, the existing constraint poses considerable management challenges for major projects, including impacting investment decisions.
The Bill does not entirely abolish the constraint on a DMA during the EPA’s assessment, but instead limits the constraint to a new category of “restricted decisions”. Restricted decisions are to be defined by regulations, so the precise scope of this term – and therefore, the decision-making processes that will be excluded from this reform and remain subject to the section 41 limitation – will not be confirmed until the regulations are developed.
Some guidance is provided in the second reading speech given by the Minister when the Bill was introduced to Parliament. According to that speech, the Government’s intention is for “planning, subdivision and development decisions” that are currently prohibited by section 41 of the Act to be prescribed as restricted decisions, and so continue to be prohibited. The intended meaning of “development decisions” (as opposed to planning and subdivision) is unclear.
These carve-outs substantially limit the benefit of the proposed amendments for many proponents trying to progress planning and environmental approvals simultaneously. While the existing legislation and Administrative Procedures only prevent a final decision, and in fact encourage parallel assessment, in practice there is often an unwillingness to fully engage with an assessment until after the EP Act process concludes.
This issue and the reasoning behind the exclusion of planning approvals was elaborated on in Parliament:
“The current system of EPA-assessed schemes remains in place, which ensures that decisions that comply with those schemes and do not raise new environmental issues can continue to be made without requiring individual EPA assessment. More complex planning proposals that raise environmental issues are often shaped by the environmental conditions imposed under the EP act. Planning decisions irrevocably bind the state and have wideranging consequences, with little or no recourse to reverse a decision. It is important that planning approvals are consistent with environmental approvals, yet, due to the “deemed refusal” regime, planning decision-makers, such as local governments and development assessment panels, do not have the ability to defer the making of a planning decision on a case-by-case basis. Over time, further consideration will be given to whether or not it may be appropriate to cease to prescribe some particular planning decisions as restricted decisions.”
Our preliminary thoughts on this position are that while there will be circumstances in which a proposal will need to change as a result of the environmental assessment process, in most cases we would expect that this should be evident during the environmental impact assessment process and so can be accounted for during the parallel assessment of a development approval application. Alternatively, it is likely to be in the proponent’s interest to either apply for an amendment of a granted development approval under the Planning and Development Act 2005 (WA) (PD Act) if approval has already been granted (if a planning approval is inconsistent with an environmental approval and permits something not permitted by the environmental approval or vice versa, the proponent will not be able to proceed without an amendment), or, if significant changes look possible or arise, request delay of the development approval assessment until those issues are resolved. On its face, this and the other concerns raised seem capable of resolution with corresponding amendments to the PD Act framework, including specifically accounting for the possibility that there may be a delay between the grant of a planning approval and environmental approval in the context of deemed refusals and review periods, and powers to amend development approvals to resolve inconsistencies in these circumstances.
Another class of decision that the Government intends to prescribe as restricted decisions relates to proposals for petroleum projects involving hydraulic fracturing, at least until the Government releases further legislative reforms.
As to those decisions which will be able to proceed if the proposed reform is passed, we understand that land access decisions, such as for options to lease, will not be prescribed as restricted decisions, and will be able to proceed before an EPA assessment is completed. This may be particularly useful for energy transition projects looking to take advantage of diversification lease tenure arrangements. Other amendments suggest that it will also be possible to make clearing permit, works approval and licence decisions. Decisions under the Aboriginal Heritage Act 1972 (WA) are already exempt from the section 41 requirement and this position will continue under the amendments.
The Bill also retains the existing capacity for “minor or preliminary work” to proceed, with the EPA’s approval, while assessment is underway, and adds the capacity to prescribe categories of work as “minor or preliminary work”, which may serve to clarify the types of works that can proceed during an EPA assessment.
Statement of expectations
Among the higher profile of the reforms is the introduction of the Minister’s statement of expectations to the EPA. Although not without controversy, it is not uncommon for independent statutory agencies in WA and other jurisdictions to have statements of expectations, including EPAs in other Australian jurisdictions.
The Bill inserts a new Division 1A into Part II of the Act, providing for the Minister to issue a ministerial statement of expectations to the EPA. The Minister will be obliged to issue a statement, the purpose of which is to set out the Minister’s objectives on matters relating to the EPA’s functions. The EPA will be required to have regard to the statement in the performance of its functions. The Minister’s expectation statement must be laid before Parliament and published by the EPA.
The content of the Minister’s statement is subject to a broad discretion. Media statements indicate that the intent is for the statement to set out the Government’s priorities, which are currently stated to include green energy transition, housing delivery, job creation and protection of WA’s unique environment. News media reported the Premier as saying that the Minister’s statement of expectations would be directed to the priority given to processing, and not assessment of environmental risks.
The existing provision of the Act that prohibits the Minister from directing the EPA or its Chair, which provides for the EPA’s statutory independence, remains.
Changes to the EPA’s composition
The current Act provides for the EPA to have five members, selected on the basis of their interest in, and experience of, matters affecting the environment generally. Under the provisions of the Bill, the EPA will be composed of up to nine members (with five as a minimum), to be selected, in addition to the existing criteria, on the basis of a suitable level of knowledge, skills, experience or qualifications in one or more of environmental science, natural resources and biodiversity management, waste management and pollution control, industry, commerce or economic development, public administration, governance, regulation or law and regional areas and issues. The maximum term of members is reduced to three years (although reappointment is possible).
Abolition of appeals against EPA decisions not to assess
An additional streamlining amendment in the Bill is the abolition of appeals against decisions by the EPA not to assess referred proposals under section 38G. Only the content and recommendations in the EPA’s report will remain appealable by third parties under section 100. The proponent will remain able to appeal the EPA’s report and conditions in a ministerial statement.
In the past two years, appeals against decisions not to assess have taken an average six months to resolve, with the longest period being nine months. Of 178 appeals against this kind of decision that appear in the Appeals Convenor’s public database (going back to 2003), only nine, or just under 6%, have been allowed in full or in part, with six on hold and the remaining 163 being dismissed, suggesting that this appeal process was of limited effectiveness as an accountability measure. As a partial compensation for the removal of this process, the Bill introduces a requirement for the EPA to publish reasons when it decides not to assess a proposal.
The Vogel-McFerran Review’s recommendations for reforming the appeal system went further, suggesting that the Government consider moving appeals under Part V of the Act (dealing with licences, works approvals and clearing permits) to the State Administrative Tribunal, and abolishing appeals concerning EPA reports entirely. The fact that the Government has recently appointed Eve Drain as the new Appeals Convenor suggests that there are no immediate plans to progress more significant reforms to the environmental appeals system.
Other amendments
Some other amendments included in the Bill include:
- strengthened provisions regarding EPA Board member conflicts of interest;
- greater transparency around Ministerial directions to the EPA regarding the timing of its assessment reports;
- additional regulation-making powers regarding reporting between the EPA and DMAs, including with respect to the timing, form and content of reports;
- allowing the Minister, when remitting a matter to the EPA in an appeal decision, to specify the timeframe for the EPA’s further assessment; and
- amendments to regulations to remove the automatic cancellation of environmental licences for non-payment of fees.