BACKGROUND

Environmental Impact Assessment (EIA) can support development applications to Commonwealth, State or Local regulators. Depending on the potential environmental impacts associated with a development, assessment and approval by one or more of these regulators may be required.

The purpose of this paper is not to debate the merits or issues with EIA, but rather, to briefly describe the practical aspects that development proponents could consider as they venture down a particular approvals pathway. This advice is based on our experience with EIA at all regulatory levels and in support of a broad range of development proposals.

TIPS ON PROCESS

At a Commonwealth level, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the pre-eminent legislation that guides EIA. The main consideration of the EPBC Act is in regards potential impacts to matters of National Environmental Significance (MNES). Where a project (or action as described under the EPBC Act) is likely to result in a significant impact on a MNES, referral to the Commonwealth is advised. Referral allows the Department to determine whether the action requires further assessment and ultimately, approval.

A key point with the referral process is that it is voluntary. Therefore, a proponent should consider the relative risks associated with referring. For example:

A proponent may be advised, following a desktop assessment, that there is a potential significant impact to MNES resulting from proposed development. If the proponent proceeds to refer without field validation, the Department would be left with little option but to determine the project “controlled” and may require significant further information to be gathered before an approval is granted. Alternatively, a simple field validation of the potential MNES may identify that the risks to MNES are manageable and following a due diligence assessment, decide that referral is not required.

In Queensland, EIA is typically guided by either the Environmental Protection Act 1994 (EP Act) or the State Development and Public Works Organisation Act 1971 (SDPWO Act) and through an Environmental Impact Statement (EIS) as the primary application document. There are a number of forms for each process, but they generally refer to a Terms of Reference that guides the development of an application document. Where a project is triggered by the EPBC Act, a bilateral agreement between the State and Commonwealth identifies accredited processes for completing the EIS so that there is minimal duplication.

EIA under the EP Act is required to support the provision of an Environmental Authority, so generally lends itself to similarly related activities such as energy or resource projects. Under the SDPWO Act, the Coordinator-General may approve an often large, complex project with relevance to the State to be assessed by EIS. An EIS under the EP Act or the SDPWO Act is very thorough and requires stamina from the proponent and supporting team. There are various stages of public consultation and community engagement required in addition to the provision of detailed technical studies.

Through the Planning Act 2016 (Planning Act), Councils and their Planning Schemes may require environmental investigations to support development applications (DAs). The level of environmental assessment required can range in complexity from brief ecological assessments through to impact assessable environmental investigations to support development applications of significance (eg size or scale). Some Councils have produced their own Ecological or Environmental Assessment Guidelines that provide information on the intensity of investigation required to identify matters of State environmental significance (MSES), local environmental significance (MLES) or to validate MSES.

The key point is that it is crucial that supporting information is accurate so that meaningful negotiations with Council can be undertaken. Where data is of poor quality or lacking substantiation, there are few options to present possible solutions.

PROFESSIONAL CERTIFICATION

For most property development proponents, the use of specialist consultants is a necessity. There are many excellent service providers who are able to deliver the right outcomes, but it is also important that proponents understand exactly what they want from a consultant and the relevant level of competence they are paying for through this service.

Amongst environmental service professionals, there is a growing requirement to meet regulator expectations to demonstrate qualifications or experience. This is manifesting in certifications from representative professional organisations that require applicants to demonstrate adherence to codes of conduct, ethical standards and continuing professional development – all good for the industry.

Certification in the environmental profession sets a benchmark expectation both for providers and clients. It is strongly recommended that development proponents seek the services of a certified environmental consultant.

DEALING WITH DATA

When undertaking an EIA, data is the key. A thorough desktop assessment can be quickly verified through field investigation, making for a robust application to be presented to regulators. An EIA that relies upon desktop data alone is prone to be subjected to higher levels of scrutiny because regulators are not confident that a proponent understands the risks associated with their development and will likely revert to more stringent conditions to protect environmental values.

There are an array of data lists available in Queensland and as the industry continues to mature, more accurate information is replacing the high-level, course-scale information that was once the norm. Where inaccuracies are identified, there are processes available to seek changes to the data source and hence, improve outcomes for proposed developments.

It is important to apply logic to the use of data, and it is recommended that a likelihood of occurrence is associated with any data source. In these instances, a proponent may challenge the data being presented and apply sound ecological principles to the interpretation of records or mapping.

THE TAKE AWAY

In order to get the best outcomes for a project, following a few simple rules can make the difference between gaining conditions that don’t work and gaining workable conditions:

Establish a strong pathway to approval. Good planning up-front will result in better cost and timeframe outcomes as well as establishing good relationships with regulators;
Seek to engage certified environmental consultants. Request examples of previous work completed, how the consultant gained pragmatic outcomes and relevant client references;
Challenge the data, just because something was identified on a “list” does not necessarily mean it is likely to occur at a site, or, be impacted by the project;
Accurate EIA relies upon a sound approach both to the assessment of risk and the mitigation or management of outcomes to protect environmental values. This does not mean that development cannot proceed, rather, it relies upon strong arguments that are supported by science

Epic is a specialist, independent and innovative environmental consulting firm. Our experience is across the property, resources, government and energy sectors. Our staff specialise in strategic environmental advice; regulatory approvals; environmental assessment, compliance and management; contaminated land auditing; contaminated land management and remediation. We think differently - our focus is on you, the client. We understand the business dynamics our clients operate in, ensuring we can provide proactive and effective solutions that best meet your objectives.