WA “parallel processing” environmental approvals reforms enter into force

Key reforms to the Environmental Protection Act 1986 (WA) (EP Act) that were introduced into the WA Parliament in August have now entered into force. The reforms, which allow for “parallel processing” of statutory approvals while a project is under environmental assessment, are intended to reduce delays in project approval.

Now in force, the new provisions remove restrictions on certain decisions, such as grants of Crown leases, mining and petroleum tenements, and ancillary environmental approvals, which should reduce delays and procedural difficulties for some projects. However restrictions on other key decisions, including planning approvals, remain.

Formerly, where a proposal had been referred under Part IV of the EP Act the Act prevented government decision-making authorities from making any decision “that would have the effect of causing or allowing the proposal to be implemented” until an Environmental Protection Authority (EPA) assessment was completed and Ministerial approval for implementation had been granted. The constraint affected a significant range of approval decisions, including not only planning approvals for subdivision and development, works approvals for construction of plant and permits to clear native vegetation, but also land access decisions such as the grant of Crown leases and mining and petroleum tenements. As such, the prohibition posed a significant challenge for the timing of major projects.

Under the reforms, this constraint will no longer apply to all approval decisions required by projects, other than those defined as “restricted decisions” in a new Part 2B in the Environmental Protection Regulations 1987 (WA), published on 28 November.

Under the new regulations, “restricted decisions” fall within two categories:

(a) The first covers decisions made under “planning legislation” (including the Planning and Development Act 2005 (WA)) and decisions of the State Administrative Tribunal relating to planning decisions. This relevantly includes subdivision and development approvals, scheme amendments relating to a proposal, and any decisions on appeals relating to a decision on a subdivision or development application. This means that the former restrictions on decision-making during EPA assessment will remain substantially in place with respect to planning approvals, substantially reducing the benefit of the reforms to some sectors, such as property development.

(b) The second category covers decisions made under certain provisions of the petroleum legislation “that relate to a petroleum activity involving hydraulic fracturing”. These relevantly include provisions of the Petroleum and Geothermal Energy Resources (Resource Management and Administration) Regulations 2015 (WA) and the Petroleum (Submerged Lands) (Resource Management and Administration) Regulations 2015 (WA) concerning approval of well and field management plans, approvals of environment plans and oil spill contingency plans under the Petroleum Pipelines (Environment) Regulations 2012 (WA) and the Petroleum (Submerged Lands) (Environment) Regulations 2012 (WA). While the restriction will remain on operation-level approvals for hydraulic fracturing projects, decisions relating to the grant of petroleum tenements under the Petroleum and Geothermal Energy Resources Act 1967 (WA) are not included in the definition of “restricted decisions”, so the greater flexibility afforded by the reforms will apply to these approvals.

According to the second reading speech for the introduction of the Environmental Protection Amendment Bill to Parliament in August, planning decisions have been excluded from the parallel processing reforms because:

• they “irrevocably bind the state and have wide-ranging consequences, with little or no recourse to reverse a decision”;
• planning and environmental conditions need to be consistent; and
• the “deemed refusal” regime leaves decision-makers unable to defer decisions on a case-by-case basis.

We do not consider any of these issues to be insurmountable, although some minor amendments to the planning framework are required. Ultimately, there is no obligation to implement a granted planning approval and developers will not be able to do so lawfully if this would be in breach of other environmental laws or a condition on an environmental approval. Regulator and developer interests are aligned in this respect. We understand that the Government is open to hearing views on how to apply the reform to planning decisions but did not want this to hold up the changes for other approval decisions while that was being worked through.

Minister’s Statement of Expectations to the Environmental Protection Authority focused on efficiency and economic development

On 20 November, the Minister for Environment published the first Statement of Expectations to the EPA under other provisions of the reforms which entered into force on 23 October 2024. The Minister’s Statement sets out the Government’s strategic priorities that have salience for the EPA, and a series of discrete expectations. The Government’s strategic priorities may be summarised as:

• Continued economic development through facilitating job-creating projects;
• Economic diversification, including hydrogen, critical minerals and additional downstream processing;
• Construction of residential housing to boost housing supply and housing choice;
• Development of renewable energy and transmission infrastructure;
• Delivery of the new Kwinana container port and associated infrastructure;
• Facilitating new tourism initiatives including accommodation options;
• Delivery of the Alkimos desalination plant;
• Expansion of softwood plantation estate; and
• Construction of the new public Women’s and Babies Hospital.

The Minister’s expectations, in general terms, are:

• Alignment with government priorities and policies;
• Efficiency and timeliness of environmental assessments;
• Reducing duplication; and
• Engagement with proponents.

The most specific provision in the Minister’s expectations is that the EPA should review its policies in response to the State Government’s revised Greenhouse Gas Emissions Policy for Major Projects 2024.

The full Statement of Expectations is published on the EPA website.

If you have any questions about any of the above, including our thoughts as to how the parallel processing reforms might be applied to planning decisions, please contact our Perth Environment and Sustainable Development team.