WA Environmental Protection Act Reform – Bill Tabled

WA Environmental Protection Act Reform – Bill tabled

Government’s intent to reform the Environmental Protection Act 1986 (WA) (EP Act) has been formalised with the tabling of the Environmental Protection Amendment Bill 2020 (WA) (Bill) on 16 April 2020. The Bill follows the release of an Exposure Draft for public comment in late 2019. Our summary of the aims of the reform and key aspects of the Exposure Draft is accessible here.

While framed as a modernisation of the EP Act, the substantive reform proposed in the Bill is modest in nature and not comparable to the wholesale reform elsewhere in Australia. However, a number of the amendments will see far greater clarity and real procedural efficiencies, particularly in the Part IV and Part V assessment and approval processes.

A number of noteworthy changes have been made to the Bill since the Exposure Draft, which we touch on briefly below.

Part IV administrative efficiencies

One of the current difficulties with Part IV of the EP Act is the lack of administrative flexibility post approval of a proposal. In response to comments raised in the consultation period, provisions have been inserted which will have the effect of increasing that flexibility. These include:

• Allowing an approved proposal to be able to be split into multiple Ministerial Statements or multiple proposals consolidated into one Ministerial Statement (section 45D). We see these provisions as being particularly useful in a divestment/acquisition context, or to be able to close out components of a larger proposal over time.
• An express power to supersede the original Ministerial Statement where a decision is made to allow implementation of a significant amendment to an approved proposal (section 40AA(6)(b)). This is consistent with current practices, but will put beyond doubt that the amendment and original proposal can be regulated under a singular Ministerial Statement (section 40AA(6)(b)).
• A substantial expansion of the scope of section 45C to also include amendment to conditions without the need for an EPA inquiry. A range of post approval changes to Ministerial Statements will likely be simpler and quicker to achieve because of this amendment.

Changes to the definition of ‘significant proposal’ are also proposed, which clarify the referral and assessment pathway for significant amendments to approved proposals. This replaces the current incomplete references to ‘revised proposal’. Coupled with the insertion of section 40AA(6)(b), the proposed amendments will give a greater level of certainty over the application of the Part IV provisions to major changes to approved proposals.

Express recognition of cumulative impacts

While cumulative impact assessment in the context of Part IV is not new, an express recognition of the relevance of cumulative effects is proposed to be included in the EP Act. This was identified as a potential aspect for reform in the discussion paper that accompanied the Exposure Draft.

New section 3(1B) provides that a reference to the ‘effect’ of a proposal on the environment includes a reference to the ‘cumulative effects of impacts of the proposal on the environment’. Different to the current state of play, this will mean some extent of cumulative impact assessment is likely to be required for all significant proposals.

New ‘opt-in’ regime for clearing permits

The proposed pre-clearing permit application decision process in the Exposure Draft has been changed to an opt-in scheme (section 51DA(2)). This will give proponents the flexibility to test with DWER whether a permit is required, or move straight to the application stage if that is self-evident or if it is the proponent’s preference.

Next steps

The Bill is currently in the early stages of the Parliamentary process and will be subject to detailed consideration (and potentially amendment) prior to being passed. We will follow the Bill as it passes through Parliament.

For further information, contact Mel Debenham.

By Mel Debenham, Partner, Emily Wilson, Senior Associate, and Emma McCracken, Graduate, Perth