Fact
Sheet 4 Environmental Impact Assessment Law in the Australian Capital
Territory
This
Fact Sheet provides a brief overview of EIA procedures and legislation
applying in the ACT. The process for
Environmental Impact Assessments particularly under Part 4 of the
Land (Planning and Environment) Act 1991 (the Land Act)
is described.
Note:
This fact sheet does not describe EIA procedures under Commonwealth
law (the Environment
Protection and Biodiversity Conservation Act 1999). Please
refer to our forthcoming fact sheet regarding the EPBC Act when
it becomes available on this site.
The
Land Act is currently under review. Under the proposed reforms,
preliminary and further assessments would be replaced with either
environmental impact statements or planning studies. Mandatory environmental
impact statements would be required for listed types of development
proposals.
Details
of the proposed reforms can be accessed on the ACTPLA Planning System
Reform Project website or by examining the Exposure Draft of the
Planning and Development Bill 2006 on the Legislation
Register website.
Index
What is Environment Impact Assessment?
When can EIA be required?
How is environmental impact defined ?
What forms of EIA are there?
What is a Preliminary Assessment?
Mandatory Preliminary Assessment
Variations of the Territory Plan can require
a Mandatory PA
PA by Direction
Exemption from Mandatory PA requirements
What must be included in a PA?
Environmental Assessment of Pollution Control Authorisations
How can the Public participate in the PA Process?
Further Impact Assessment
What is a Public Environment Report?
What is an Environmental Impact Statement?
What must PERs and EISs Address?
How can the Public participate in the
PER or EIS Process?
Can Proposals be exempted from Environment Impact Assessment?
What is an Inquiry?
How can the Public participate in an Inquiry?
Contacts
Further Information & Disclaimer
Other
Fact Sheet Titles
What is Environment Impact Assessment?
Environment Impact Assessment (EIA) is a process for ensuring that
decision-makers are informed of the environmental impacts of activities
that they authorise. EIA also seeks to allow the public to participate
in the decision-making process and thereby to improve the quality
of the decision-making process.
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When can EIA be required?
EIA
can be initiated through the Land
(Planning and Environment) Act 1991 (the Land Act) the
Environment Protection Act 1997 and the Public
Health Act 1997.
The Land Act provides that EIA can be required for:
•
development applications
• draft variations to the Territory Plan (see Fact
Sheet 2)
• the grant of leases by the government
• subdivisions or consolidations of leases
• the preparation or revision of draft plans of management
for public land. For example, national parks, nature reserves, and
urban open space. The requirement for an EIA on draft plans of management
is at the discretion of the Conservator of Flora and Fauna (see
Fact Sheet 5).
The Environment Protection Act provides that EIA can be
required for activities (not subject to development applications)
which might cause significant environmental harm.
The Public Health Act provides that EIA can be required
for developments which might have a significant effect on public
health.
How is environmental impact defined ?
The
Act defines environmental impact very broadly (s.111) to include
the potential effects of a proposal either by itself or in combination
with the potential effects of another such proposal including physical,
biological or cultural transformation of an area; environmental
effect on the social system or the ecosystems of an area; or change
to the aesthetic, recreational, scientific or other environmental
qualities, or values, of an area. It is also defined to include
the endangering, or further endangering, of any species of fauna
or flora or the environmental effect on any premises or land or
their surroundings that has heritage significance.
What
forms of EIA are there?
In
the ACT there is a sequential system of EIA:
1.
a Preliminary Assessment (PA);
2. a Public Environmental Report (PER) or an Environmental Impact
Statement (EIS);
3. an inquiry.
The system is sequential in that Preliminary Assessment may lead
to either a Public Environment Report (PER) or an Environmental
Impact Statement (EIS). However this progression is not automatic
and most developments in practice are only subject to the PA process.
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What is a Preliminary Assessment?
Mandatory Preliminary Assessment
The Land Act provides that a Preliminary Assessment (PA) is mandatory
for decisions [concerning specified activities which are undertaken
in particular land use categories] listed in Appendix II of the
Territory Plan. For example, a PA is mandatory for roads, subject
to the following criteria: “all proposals involving the construction
of a new major road or the widening of any existing road by one
or more lanes…”
The Minister may exempt such a proposal in Appendix II from a mandatory
PA if satisfied that:
“The proposal represents a part or a whole of a proposal which
has previously been the subject, directly or indirectly of a previous
assessment or has been the subject of another form of investigation
which would satisfy the requirements of a preliminary assessment
under the Land Act”. (Territory Plan, Appendix II, p.2.)
The
Minister is obliged to issue a notice requiring the production of
a PA in relation to these developments (s.114).
The
Act automatically requires a PA where the probability of environmental
impact is high. A PA is mandatory for those categories of development
where it is known or suspected to have a high probability of environmental
impact; by itself or as part of a cumulative effect which may lead
to the exceedance of an accepted ambient standard for environmental
conditions; or it may have potential to be inconsistent with the
objectives of the Territory Plan; or by its nature is known to arouse
broad public concerns.
Some
of these decisions relate to proposals for:
• buildings of significant height or area, or within sensitive
land use areas
• specified manufacturing industries (see listing below)
• major roads
• clearing of more than 0.5ha of remnant native vegetation
• all proposals involving a motor sport facility
• waste disposal facilities.
• mining
• All proposals involving hazardous chemicals/substances,
landfill; or incineration of hazardous materials.
The
list of specified manufacturing industries includes all proposals
involving the production or manufacture of: food and beverages and
tobacco; textile and knitting mills; wood and wood products; paper
and paper products; chemical, petroleum and coal products; non-metallic
mineral products; basic metal products; fabricated metal products;
transport equipment; other machinery and equipment; or miscellaneous
manufacturing. However these industries are not caught by PA requirements
where the purpose is restricted to the repacking, blending, final
assembly or processing for the purposes of retail.
Variations
of the Territory Plan can require a Mandatory PA
All
of the following decisions which would change land use policy in
the areas of: Community Facility; Urban Open Space; Hills and Ridges;
Mountains and Bushlands; River Corridors; or Plantation Forestry
will automatically require production of a PA.
PA
by Direction
The Environment Minister, or another relevant Minister, also has
the discretion to direct that a PA be prepared for other proposals
not listed. This discretion is not usually exercised because of
the comprehensiveness of Appendix II.
Exemption from Mandatory PA requirements
The Minister may exempt an Appendix II proposal if he or she is
satisfied that:
• the proposal does not represent a significant change on
an existing situation
• the proposal has already been the subject of another form
of assessment
• it is intended by agreement with the Commonwealth or NSW
that the proposal be assessed by that authority.
A PA is prepared by a “proponent”, who is designated
by the relevant Minister. The proponent is usually the person or
body proposing the development and may be a company or a government
authority.
ACTPLA writes to the proponent to trigger the PA, and provides the
document Procedures for preparing a preliminary assessment.
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What
must be included in a PA?
The PA must address all the matters listed in Schedule 3 to the
Land Act, including a description of the project, the existing environmental
conditions and the potential environmental impacts. The PA also
must include a summary of the potential benefits and disadvantages
of the project. It is required to address the question: “Can
the benefits to the community be said to offset any unavoidable
permanent or temporary adverse effects?”
If the PA does not address the matters listed in Schedule 3, it
may need to be re-submitted and re-notified.
ACTPLA provides a list of potential impacts that can be used as
a guide by proponents in identifying the relevant impacts of their
proposal. This guide can be viewed at the ACTPLA website (www.actpla.act.gov.au)
Most EIAs in the ACT in practice have taken the form of Preliminary
Assessment and it has been extremely rare for either a Public Environment
Report (PER) or Environmental Impact Statement (EIS) to be required
to be produced.
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Environmental
Assessment of Pollution Control Authorisations
There is some scope for Environment ACT or the Minister for Environment
to require production of an environmental assessment (ie PER or
EIS or Inquiry) in relation to requirements for a (‘pollution
control’) authorisation under the Environment Protection Act
1997 (s.94). However, where there is a development application in
progress for the proposed development, neither the Minister nor
the authority can make such a direction (s.94(3)).
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How can the Public participate in the PA Process?
The
Land Act does not provide for public notification of the PA until
it is finalised and submitted to the Environment or relevant Minister.
The ACTPLA places a notice in the ACT Legislation Register and the
Canberra Times, stating that copies of the PA are available for
public inspection for a period of at least 15 business days at specified
places, including all ACT government libraries and the ACTPLA shopfront.
The PA is also available on the ACTPLA website for the duration
of the consultation period.
LINK http://www.actpla.act.gov.au/plandev/environmental_planning/activepas.htm
A copy is sent to the Conservation Council of the South–East
Region and Canberra, and community councils if the project is in
their area. PA documentation can also be usually found in ACT Libraries.
Members of the public can make submissions to the Minister within
the 15-day inspection period. Submissions can be forwarded to ACTPLA
in person, by post, email or fax. Submissions are usually made by
the public on the question of further assessment.
From the date the PA is submitted to the Minister, he or she has
30 business days to decide whether or not further assessment is
required.
The Land Act provides for round table conferences organised by the
Minister to formally bring together the proponent, affected people
and any one else the Minister considers appropriate. The aim of
the conference is to clarify the proposal and any concerns about
it and discuss any alterations to the proposal.
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Further
Impact Assessment
The
Environment Minister, or other relevant Minister, has a discretion
to direct further assessment following the PA if he or she believes
(based on reasonable grounds) that the environmental impact of the
proposal is of sufficient significance (s.121). Further assessment
takes the form of a Public Environment Report (PER), an Environment
Impact Statement (EIS) or an inquiry. The grounds for determining
what form further assessment takes are based on the extent and number
of issues to be addressed.
Decisions under s.121 Land Act to require or not require further
assessment are not subject to review in the Administrative Appeals
Tribunal (ACT), and could only be challenged in the Supreme Court
in judicial review proceedings.
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What is a Public Environment Report?
A
Public Environment Report (PER) is a report prepared by the proponent,
which concentrates on 1 or 2 aspects of a proposal with significant
environmental impacts and considers alternatives to the proposal.
What
is an Environmental Impact Statement?
An Environmental Impact Statement (EIS) is a report
prepared by the proponent, which considers fully the environmental
significance of all aspects of a proposal and alternatives to the
proposal.
What
must PERs and EISs Address?
PERs and EISs are prepared by the proponent. However
the Minister may direct the proponent to engage the services of
a consultant.
The requirements for PERs and EISs are set out in
the Land Act and the Land (Planning and Environment) Regulations
1992. http://www.legislation.act.gov.au/sl/1992-5/default.asp
Broadly, they must address the environmental effects of the proposal
and alternatives. They must detail proposed environmental standards
and safeguards and provide a technical assessment of these.
The precise detail of which matters are to be included
within the PER or EIS is directed by the Minister (s.123(2)). The
Minister or their delegate directs the relative emphasis to be given
to each of these matters. The Minister has the power to direct the
project proponent (the developer) to engage a consultant specified
by the Minister to assist with preparation of the environmental
assessment (s.123(7)).
How can the Public participate in the PER or EIS Process?
Once the PER or EIS is submitted to the Minister,
he or she may, within 42 days direct that further information is
required or the document revised (s.129). The Minister must prepare
a written report evaluating the document within 56 days of the document
being originally submitted or within the subscribed period if the
Minister sought further information or revision (s.131). Within
6 sitting days of finalising the evaluation report, the Minister
must table in the Legislative Assembly the PER or EIS, the evaluation,
any report on public consultation, plus submissions received and
any Ministerial directions (s.132). The Minister must make copies
of these documents available to the public.
Can
Proposals be exempted from Environment Impact Assessment?
The Environment Minister may exempt proposals (or
specified classes of proposals) from the requirements of PAs, PERs
or EISs (s.134). He or she may only do so by way of a disallowable
instrument, which is a document tabled in the Legislative Assembly.
The instrument is also notified in the Canberra Times. This means
that there is an opportunity for the public to press their political
representatives not to allow such exemptions.
It
is also important to understand the impact of exemptions under the
Land Act Regulations. If a proposal does not require development
approval, there is no legal requirement for production of any form
of environmental impact assessment (see Fact Sheet 3). For example
a DA is not required for the carrying out of earthworks or landscaping
if the development will not result in the substantial clearing of
0.5ha or more of native vegetation. The full list of exempt developments
is in the Land (Planning and Environment) Regulations 1992 (Division
4.3), particularly Schedule 1. The exemptions do not apply to development
that affects a place that is registered, or nominated for provisional
registration, under the Heritage Act 2004, or works inconsistent
with a condition of development approval, a provision of a Crown
lease, or an agreement collateral to the grant of a lease (see Regulations
s.40(4). Development approval requirements also do not apply to
the construction of a public road in a designated area (see Fact
Sheet 2: Case Study: Gunghalin Drive Extension).
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What
is an Inquiry?
The Environment Minister, or other relevant Minister,
may establish a panel to conduct a formal inquiry into a proposal
for which EIA can be required.
How
can the Public participate in an Inquiry?
The Environment Minister, or other relevant Minister,
must publish a notice about the establishment of an inquiry in the
ACT Legislation Register and the Canberra Times.
The
inquiry should generally be held in public and in a manner which
allows public participation. Panel members are given a wide range
of powers to enable them to conduct a full investigation into the
proposal. No such inquiries have yet been held in the ACT.
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Contacts
ACT Planning and Land Authority (ACTPLA)
Applications Secretariat
Dame Pattie Menzies House
16 Challis St
Dickson ACT 2602
Ph: (02) 6207 1687
Website: www.actpla.act.gov.au
ACT Heritage Unit (Environment ACT)
Ph: (02) 6207 9777
Email: heritage@act.gov.au
To confirm current status of a place & enquiries re Heritage
Places Register: ph 6207 2164
Enquiries re development affecting Heritage Places: ph (02) 6207
2208 or (02) 6207 2161
Enquiries relating to Aboriginal Heritage Places: ph (02) 6207 7946
A recent Heritage Places List is available at http://www.environment.act.gov.au/heritage/registrationsforheritageplacesandobjects.html
ACT Administrative Appeals Tribunal
4 Knowles Place
CANBERRA ACT 2602
By Post: GPO Box 370 CANBERRA CITY ACT 2601
Ph: (02) 6217 4261 or (02) 6217 4279
Fax: (02) 6217 4505
Email: magistrates.court@act.gov.au
Website: http://www.courts.act.gov.au/magistrates/index.html
ACT Ombudsman
GPO Box 442
Canberra ACT 2601
Ph: 1300 362 072, 6276 0111
Email: ombudsman@ombudsman.gov.au
Website: http://act.ombudsman.gov.au
Conservation Council of South-East Region and Canberra
Childers St
Canberra ACT 2600
Ph: 6247 7808
Email: ccserac.office@ecoaction.net.au
Website: http://www.ecoaction.net.au/ccserac
Further Information and Disclaimer
The
law described in this Fact Sheet is current at March 2005.
The ACT EDO Fact Sheets have been designed to give readers plain
English background knowledge of planning and environmental decision
making in the ACT. The ACT EDO Fact Sheets cannot replace the need
for professional legal advice in individual cases.
The information contained in this publication is for general reference
only. If you are contemplating legal action, you should seek legal
advice on the specific facts of your case as soon as possible. These
Fact Sheets cannot replace the need for professional legal advice
in individual cases.
Duplication and reproduction of the information provided in any
ACT EDO Fact Sheet is permitted with acknowledgment of the ACT EDO
as source.
The ACT EDO Fact Sheets Project was carried out with the assistance
of funds made available by the ACT Government under the ACT Environment
Grants Program.
Important: Readers are advised to seek professional legal advice
in relation to specific legal questions.
These fact sheets provide a summary of the law and are not intended
to be comprehensive or to cover the specifics of any given situation.
While every effort has been made to ensure the content is as accurate
as possible, the EDO does not accept any responsibility for any
loss or disadvantage resulting from reliance or use of this work
Disclaimer
The
ACT EDO Fact Sheets aim to give readers plain English background
knowledge to planning and environmental decision making in the ACT.
The law described in this Fact Sheet is current at March 2005.
The information contained in this publication is for general reference
only. If you are contemplating legal action, you should seek legal
advice on the specific facts of your case as soon as possible. These
Fact Sheets cannot replace the need for professional legal advice
in individual cases.
Duplication and reproduction of the information provided in any
ACT EDO Fact Sheet is permitted with acknowledgment of the ACT EDO
as source.
The ACT EDO Fact Sheets Project was carried out with the assistance
of funds made available by the ACT Government under the ACT Environment
Grants Program.
Other
Fact Sheet Titles
Note:
Some EDO fact sheet titles are unavailable at this time as they
are being updated following legislative amendments and administrative
changes. These fact sheets will be added as soon as possible.
Fact
Sheet 1 Environmental and Planning
Law in the ACT
Fact Sheet 2 National Capital
Plan and the Territory Plan
Fact Sheet 3 The Development Approval
Process
Fact Sheet 4 EIA Law in the ACT
Fact Sheet 5 Management of Public Lands
Fact Sheet 6 Heritage Law
Fact Sheet 7 Biodiversity Protection Law in the ACT
Fact Sheet 8 Tree Protection
Fact Sheet 9 Investigating
Decision Making about the Environment
Fact Sheet 10 Challenging
Decision Making about the Environment
Fact
Sheet 11 Pollution Control Law in
the ACT
Fact Sheet 12 Noise Pollution Control
in the ACT
Fact Sheet 13 Freedom of Information
Law in the ACT
Fact Sheet 14 Freedom of Information
Law (Commonwealth)
Fact
Sheet 15 Incorporating an Environmental
Group in the ACT
For
information about State environmental legislation, follow the links
from the national EDO website.
Important:
These fact sheets provide a summary of the law and are not intended
to be comprehensive or to cover the specifics of any given situation.
While every effort has been made to ensure the content is as accurate
as possible, the EDO does not accept any responsibility for any
loss or disadvantage resulting from reliance or use of this work.
Readers are advised to seek professional legal advice in relation
to specific legal questions.
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