Environmental Reform passed by WA Parliament

The Environmental Protection Amendment Bill 2020 has been passed by WA Parliament and the environmental regulatory landscape in Western Australia is set to change. But how significant are the changes and how do they affect you? 

Bills passed

The primary of two Bills, the Environmental Protection Amendment Bill 2020, passed both houses of Parliament last week and is now awaiting assent.

The second Bill, the Environmental Protection Amendment Bill (No. 2) 2020, relates to the taxation of fees and charges and cost recovery.

These two Bills (Environment Bills) amend the Environmental Protection Act 1986 (WA) (EP Act). They do not fundamentally change WA’s environmental regulatory system. However, they signify a long awaited refresh and a welcome step towards modernising the EP Act and making its regulatory processes more “efficient, risk-based and flexible”.¹

Read on for our summary of the changes to the EP Act if you are interested in:

• The improvements to the Part IV environmental impact assessment process;
• A new way to test your clearing licence requirements; or
• Important changes to the environmental licensing process.

Summary

Here are some of the key changes to the EP Act (section references are to the EP Act, as amended by the Environment Bills):

• Cumulative impacts: The Environmental Protection Authority (EPA) will now be explicitly required to consider the “cumulative effect of impacts of the proposal on the environment” (section 3(1B)). Cumulative impacts will also be the focus of forthcoming regulations about the development of environmental monitoring programmes (discussed further below).The term “cumulative impacts” (or “cumulative effect of impacts”) is not defined in the EP Act or Environment Bills. The Explanatory Memorandum notes that it relies on its ordinary meaning, which may change over time. This is a new amendment, added since the Exposure Draft Bill was published last year. Whilst cumulative impacts have been considered impliedly relevant in many cases for some time, this change explicitly requires them to be considered in all cases where the effect of a proposal on the environment is considered;
• Part IV process: Various “process” changes are made to the Part IV environmental impact assessment process, intended to provide greater clarity, flexibility and efficiencies. For example, the amendments provide for:
  • the splitting of a proposal across a number of Ministerial statements or combining of multiple Ministerial Statements into one (section 45D);
  • withdrawal or amendment of a proposal prior to decision (sections 38D and 38C respectively);
  • a broader and clearer section 45C process allowing non-significant amendment of approved proposals and implementation conditions without an inquiry;
  • a clearer assessment process for significant amendments (section 40AA);
  • a new definition of the term “Ministerial statement” – a term commonly used in practice but not previously found in the EP Act – which allows for simplified drafting and hopefully greater clarity for those reading and applying the EP Act (sections 3(1) and 3(1A));
  • a new concept of “key decision-making authority”, allowing the Minister to determine which decision-making authorities should be consulted in relation to a proposal assessed by the EPA (section 45(2)); and
  • the withdrawal of Ministerial statements (which includes a requirement that notice of the CEO’s advice to the Minister be given to the proponent before the Minister’s power to withdraw a Ministerial statement is exercised) (section 47A);
• Increased EPA transparency: A proponent used to be able to request that the EPA not keep a public record of its proposal. This right is now gone. The EPA is obliged to keep a public record of each proposal including whether or not it will be assessed under Part IV and if so, the level of assessment (section 39). The EPA is also now required to publish an indicative outline of the timeline for an environmental review when determining its form, content, procedure etc. (section 40);
• New Part V, Division 3: One of the biggest substantive changes is probably to the licensing system in Part V Division 3, which has had a wholesale re-write. These changes are discussed in more detail below. We understand that these changes will not come into effect until after review and amendment of the Environmental Protection Regulations 1987 is complete, which will require extensive stakeholder consultation;
• Environmentally sensitive areas: Regulations can now declare an environmentally sensitive area (section 51B). Previously this was effected by the Minister publishing a notice. Affected land owners will be notified and given the opportunity to make comments prior to the declaration taking effect. Recent amendments now also require notice that land is in an environmentally sensitive area to be included in Landgate’s Property Interest Reports, to improve transparency for potential purchasers;
• Opt-in clearing process: A new opt-in native vegetation clearing referral process is provided for, in part to ensure that trivial clearing that does not have a significant effect on the environment will not need a clearing permit. Changes to the clearing processes are also discussed in more detail below;
• Environmental protection covenants: The CEO may now create “environmental protection covenants” that impose positive and/or negative obligations on the owner and occupier of land, including successive owners and occupiers (see new Part VB). These covenants are intended to be more flexible than the conservation covenants already available under other legislation;
• Bilaterals: One underlying intention of the amendments is to facilitate an approvals bilateral with the Commonwealth, to better streamline State and Commonwealth environmental approval processes (i.e. an agreement with the Commonwealth Department of Agriculture, Water and the Environment that allows an approval under the EP Act to also constitute approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act)). New Part VIIIA of the EP Act provides functions and powers to facilitate and simplify the implementation of bilateral agreements.  The introduction of new terminology allowing the EPA to conduct “strategic assessments”, is also better aligned with the EPBC Act (see section 38E). The positive messaging at State and Commonwealth level about a potential approvals bilateral, and the significant steps taken towards this becoming a reality (including the recent development of national standards as a precursor to the accreditation of States), are welcome steps towards reducing ‘green tape’ and duplication. They signify a significant shift in the Commonwealth’s public position, which hasn’t seen such positive support since 2014, before  the ‘one stop shop’ proposal was blocked;
• Higher threshold for environmental harm: The environmental harm thresholds have increased: material environmental harm from $20,000 to $100,000 and serious environmental harm from $100,000 to $500,000 (see section 3A(3)). However we note that the definition of material environmental harm still includes harm that is “neither trivial nor negligible”, so the amended threshold may have limited practical implications;
• Environmental monitoring programmes: A new head of power is included for regulations to deal with the development of “environmental monitoring programmes” to address cumulative environmental impacts in particular areas or from certain industries, and to recover the costs of monitoring (see new Part VIIB, sections 110K and 110L);
• Defences: The accident defence has been extended to the offences of unauthorised clearing of native vegetation and dumping waste (section 74); and
• Accreditation of environmental practitioners: There is a new head of power for the regulations to establish a system for the accreditation of environmental practitioners (see Schedule 2, item 36B). In contrast to the proposal put forward in the Exposure Draft Bill, the Second Reading Speech² on 9 June 2020 confirms the system in the amended Act will be voluntary.

Changes of note

We have considered two particular changes in a little more detail below.

1. The licensing system and enforcement regime (Part V Division 3)

As mentioned above, Part V Division 3 has been wholly replaced and reorganised. As part of this reshuffle, the EP Act has shed itself of its “works approval” terminology and replaced these provisions with a single “licence” approval for “controlled work”, a “prescribed activity” or both (section 53).

A focus on the regulation of “prescribed activities” replaces the current reliance on the concept of “prescribed premises”. The EP Act will no longer require a licence to be granted to the occupier of a premises or for licences to be issued in relation to a prescribed premises boundary (but a licence can still be restricted to a defined premises if considered appropriate). The amendments are better aligned with the intended risk-based licensing regime, focussing on polluting activities and the person who is responsible for those activities.

Along with the increased flexibility in application, the Bills introduce broader offence provisions allowing persons other than the licence holder/occupier to be held responsible for licence offences, including the carrying out of controlled work or a prescribed activity without a licence or otherwise than in accordance with licence conditions (subject to a new defence for lack of knowledge in section 74D) (see sections 53A, 53B and 63). These amendments are likely to garner particular interest as they make a much broader and somewhat unclear group subject to potential enforcement action. These offences could potentially capture contractors, consultants and employees. It will also be interesting to see how compliance and enforcement will operate in practice in the context of overlapping licence areas and licences not defined by a premises boundary.

Another key amendment to the enforcement regime is the limitation on the authorisation defence to circumstances where an emission type is specifically mentioned in the licence.

What this means for you

The broader reach of these provisions should be a reminder to all parties involved in performing works or activities, ostensibly authorised by licence, to:

1. Ensure they have a copy of the licence;
2. Satisfy themselves that the works or activities properly fall under the licence and will be undertaken in accordance with conditions; and
3. If in doubt, seek clarification before starting any work.

Licence holders should also take the opportunity to review their licences and ensure that all emissions which could amount to environmental harm or pollution under the EP Act are specifically captured, so that the authorisation defence can be relied on if necessary.

2. New opt-in clearing referral process (Part V Division 2)

The Environment Bills provide for a new referral system to determine whether a clearing permit is required or not. A notice that a permit is not required will assure a proponent that clearing can be done legally, without having to go through the usual permit process. Significantly, an amendment to the previously released Exposure Draft Bill means that this referral process will be voluntary, so that proponents who know that they will need a clearing permit can move straight to that existing process.

We can expect section 51DA to be complemented by a prescribed form allowing a “referrer” to request the CEO of DWER to determine whether a permit is needed or not. The CEO will consider if:

• The area proposed to be cleared is small relative to the total remaining vegetation (either within the relevant region or of the ecological community to which the vegetation belongs);
• There are any known or likely significant environmental values in the area;
• The state of scientific knowledge about vegetation in the relevant region is adequate; and
• Issues that would arise as a result of the proposed clearing are likely to require conditions to manage or mitigate effects on the environment.

The referral process is not available to land where there is an agreement to reserve, a conservation covenant or an environmental protection covenant.

What this means for you

The next time your organisation is grappling with clearing permit requirements and your planned activities, it may be worth considering if this new process can help provide clarity (and compliance-related peace of mind).

If you would like to discuss any of these changes to the EP Act, their potential implications or any other matters concerning the WA environmental protection regime, please contact Lucy Shea or Yvette Khoo.

This article was written by Lucy Shea, Partner and Yvette Khoo, Associate.

¹ Second Reading Speech (Legislative Assembly).
² Second Reading Speech (Legislative Council).