Environmental and social impact assessments

Donna Luckman • 21 May 2020
Author: Petra Stock

Most planning decisions — for developments like house renovations, road projects or wind farms — are made at state or local government level. The federal government only gets involved if a proposed development could potentially impact on matters of 'national environmental significance', which are protected under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBCA).

Before you submit a planning application, you need to establish whether the federal government needs to assess your proposed wind farm under this act.

Legislation

The EPBCA is the federal legislation which determines whether the Commonwealth Department of Agriculture, Water & Environment needs to assess your wind farm.

You only need to be assessed and approved under this act if there's potential for a significant impact on one or more matters of ‘national environmental significance’, which are:

  • world heritage properties
  • national heritage places
  • wetlands of international importance
  • listed threatened species and communities
  • listed migratory species protected under international agreements
  • the Commonwealth marine environment
  • the Great Barrier Reef Marine Park
  • nuclear actions.

For a wind farm, the most relevant matters of national environmental significance are generally:

  • wetlands of international importance, especially if your wind farm is near a Ramsar wetland
  • listed threatened species and communities, especially birds and bats
  • listed migratory species protected under international agreements, especially birds and bats.

Assessment process

If your wind farm has the potential to significantly impact on one or more of these matters, it's deemed a ‘controlled action’ under the EPBCA. This means the federal government will assess it in one of the following ways:

  1. Accredited assessment — usually a state environmental impact assessment process.
  2. Assessment on referral documentation — based solely on the information given in the referral form.
  3. Assessment on preliminary information — based on the referral form and any additional relevant information requested by the Minister of the Environment (ME). For example, flora and fauna studies.
  4. Assessment by Environmental Impact Statement and Public Environment Report — a detailed environmental assessment process, involving numerous environmental studies and opportunities for public comment.
  5. Assessment by public inquiry — a detailed assessment involving a commission appointed by the ME, who conducts an inquiry.

Apart from assessment by referral documentation, all other means of assessment need environmental studies and reports before the ME can decide whether or not to approve the wind farm.

Conversely, if a wind farm is deemed ‘not controlled’, no further assessment is required under the EPBCA.

While most proposed wind farms have not been ‘controlled actions’ under the EPBCA, some have. Famously, the Bald Hills Wind Farm was initially rejected by the ME under the EPBCA. The rejection was subsequently overturned following a federal court challenge.

To determine whether a wind farm is a ‘controlled action’ or not, proponents generally submit a referral under the EPBCA. The department’s Significant Impact Guidelines and Wind Farm EPBCA Policy Statement has more information about whether or not an action should be referred. Strictly speaking, if the wind farm does not have the potential to impact on a matter of national environmental significance, a referral is not necessary, but it's probably a good idea to refer anyway and get a clear decision from the department.

Here are some pros and cons of different referral strategies:

Referral strategy

Pros

Cons

No EPBCA referral

  • Saves time and effort — there is no need to prepare the referral.
  • May also reduce the overall approvals timeframe, providing objectors, regulatory bodies or government departments raise no concerns.
  • Lack of certainty, as the department may still require assessment under the EPBCA later in the process.
  • Lack of consultation with the department may create problems later on.
  • Most state and local governments assessing the planning application for a wind farm will want to know the wind farm’s status under the EPBCA.
  • In the worst case scenario, the wind farm may be deemed a ‘controlled action’ at the end of the planning process which may result in a costly and time-consuming assessment process following the (already time-consuming) planning process.

Refer early in the planning process

  • Can meet federal requirements early in the process.
  • If the wind farm is ‘not controlled’ you can focus on state and local planning requirements.
  • If the wind farm is ‘controlled’ or the department raises concerns, you have an opportunity to make significant changes to the design before you complete the planning studies.
  • If you need to do significant flora and fauna studies, you can use them to address all federal, state and local issues.
  • An opponent may submit a ‘request for reconsideration’ later in the process, which may put you back to square one.
  • Flora and fauna studies you've done as part of the planning process may not be complete at this early stage, so you can't submit them with the referral (in general, the more information you can provide to support the referral, the better).
  • Refer late in the planning process when flora and fauna studies are complete.
  • The wind farm layout and project description, including proposed avoidance and mitigation measures are fixed and can be detailed in the referral.
  • You may need to do further studies to cover issues not addressed in the flora and fauna work.
  • The EPBCA process may delay your planning application, while you wait for a decision.
  • Design changes are very difficult to accommodate at this stage.

Do-it-yourself EPBCA referral

You don't have to be a flora and fauna expert to write a referral under the EPBCA. You just need the right information to complete the form.

The first step is to use the department’s 'protected matters' search tool to find out if any matters of national environmental significance are linked to your wind farm. You can search using map coordinates, or by selecting an area on the map of Australia.

One easy way to start drafting your EPBCA referral is to look at examples for other wind farms. You can search through referrals from the last two years using words like ‘wind farm’, ‘windfarm’, ‘energy’, ‘generation’, or using names of specific companies. Referrals for recent projects in the same state (or even better, in the same region), and for projects of a similar size will be the most valuable. But use these as a guide only — don’t copy and paste information from other referrals, as important details such as threatened status and relevant acts may have changed.

It's important to liaise with the department to make sure you provide all the necessary information and address concerns. For example, if a threatened species is potentially affected by your wind farm, you should employ a flora and fauna expert to help you provide the detailed information you'll need.

If you're referring late in the planning process, you can use all the project information and flora and fauna work you've done as a basis for your referral. If you're referring early in the process, you're more likely to use the department’s search tool and other desktop information to prepare it.

After you've submitted the referral, it usually goes on the department’s website for public comment. The ME will then decide if the wind farm is a ‘controlled action’. Note, in some cases an action may be ‘not controlled’ subject to the development being done in a particular way — for example, to specific design criteria or environmental management requirements.

Employing specialists

If your research suggests there may be concerns about the impact of your development, we suggest you employ a consultant. Look for someone with experience in the requirements of the EPBCA, and who has relevant expertise in ecology, zoology or botany.

Checklist

  • Review the requirements of the EPBCA 1999.
  • Review flora, fauna and cultural heritage issues at the proposed site based on the requirements of the EPBCA.
  • Have a referral strategy.
  • Draft referral documentation.
  • Consult with the Department of the Environment, Water, Heritage and the Arts before you submit your referral.
  • Engage specialist consultants if there's potential for impacts on matters of national significance, or if the department raises concerns.