Amendments to Environmental Protection Act 1986 (WA) pass Parliament

Key takeaways

As we covered in our August blog post, on 15 August 2024, the Western Australia State Government tabled the Environmental Protection Act Amendment Bill 2024 (EP Amendment Bill), amending the Environmental Protection Act 1986 (WA) (EP Act). These reforms are part of the State Government's commitment to implement the recommendations set out in the December 2023 'Independent Review of WA Environmental Approval Processes and Procedures', prepared by former Environmental Protection Authority (EPA) chair Dr Paul Vogel and planning expert David McFerran (Vogel-McFerran Review).

The EP Amendment Bill was passed by both houses of Parliament as of 17 October 2024 and will be enacted following assent.

Key changes introduced by the amendments to the bill include:

1. Introduction of a 'statement of expectation' from the Minister to the EPA (Recommendation 12): This outlines the government's priorities and objectives and requires the EPA to have regard to the Minister's objectives in performing its functions.
2. Change to the composition of the EPA (Recommendation 13): The number of members will increase from the current five, to a minimum of five and a maximum of nine, with additional considerations relating to the skills mix of EPA members.
3. Introduction of a parallel processing provision (Recommendation 27): This enables other decision-making authorities to assess applications while a Part IV environmental impact assessment is underway. Environmental protections will be maintained by provisions that specify 'restricted decisions' and prevent project implementation.
4. Removal of appeal rights where the EPA makes a decision "not to assess" (Recommendation 36): To maintain transparency, the EPA will be required to publish a summary of reasons associated with this level of assessment.
5. Improving transparency around the use of the Minister's powers to direct the EPA to report on proposals (Recommendation 14): The reasons for the direction must be provided within a set time period.

The State Government has now in part actioned a number of the Vogel-McFerran Review recommendations, including:

1. opening a CBD office hub for the EPA;
2. introducing a renewed graduate program, recruitment strategy and mentoring program at the Department of Water and Environmental Regulation;
3. exempting a range of amendments to regional and local planning schemes from automatic referral to the EPA; and
4. seeking to reduce duplication in the assessment and regulation of greenhouse gas emissions through changes to notification obligations on proponents. Acknowledging the independence of the Environmental Protection Authority, it is the State Government’s expectation that greenhouse gas emissions will now no longer be assessed where regulated by other mechanisms (i.e. the Safeguard Mechanism) (see HSF Blog Post).

We will continue to monitor the implementation of the EP Amendment Bill and Vogel-McFerran Review and provide updates as they become available.

For more detailed advice in relation to how these changes may affect you, please contact Melanie Debenham, Naomi Hutchings or Amelia Arndt.

Written by Melanie Debenham (Partner) and Kala Dunkin (Solicitor).