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STRATEGIC ASSESSMENTS AND BIOREGIONAL PLANNING

Chapter Ten

Independent Review of the ENvIRONMENT PROTECTION AND BIODIvERSITy CONSERvATION ACT 1999 162

Chapter 10: Strategic Assessments and Bioregional Planning


Key points ■ The term ‘landscape-scale assessments’ is used to cover ideas associated with strategic and bioregional approaches,

as opposed to species-by-species protection or project-by-project assessment.

■ The EPBC Act provides for landscape-scale planning and assessment approaches along with project-specific assessments — available landscape-scale assessments include strategic assessments, bioregional plans and conservation agreements.

■ To date there has been limited utilisation of landscape-scale planning provisions, but the number of these assessments is increasing.

■ use of these provisions has the potential to ameliorate some of the concerns associated with project-specific assessments.

■ Public submissions are generally supportive of landscape-scale approaches, but would like greater assurance of the quality of these assessments.

■ Moving the focus of the EPBC Act towards landscape-scale assessment approaches would represent a significant shift in the Commonwealth’s administration of the EPBC Act.

Current provisions of the Act

types of landscape‑scale assessments available under the ePBc act

10.1 The Act provides for a number of landscape-scale approaches to environmental assessment and approval, including:

■ strategic assessments;

■ bioregional plans; and

■ conservation agreements.

10.2 These landscape-scale approaches often involve an assessment of broader policies and plans and are undertaken within the context of a landscape or region. Compared to project-specific assessment, these approaches have the capacity to address multiple impacts on matters of national environmental significance (NES) by different parties or projects, and consider impacts over longer temporal or larger spatial scales. The other significant difference between landscape-scale assessments and project-specific assessments is that landscape-scale assessments generally take place ahead of a proposed development, whereas project-specific assessment occurs in response to an existing proposal.

Strategic assessments

10.3 under Part 10 of the EPBC Act, the Minister can agree to conduct a strategic assessment of the impacts on protected matters of potential actions taken under a policy, program or plan. For example, a policy, plan or program may include:

■ regional-scale development plans and policies;

■ district structure plans and planning instruments;

■ large-scale industrial developments;

■ fire, vegetation or pest management policies, plans or programs;

■ water extraction/use policies; and

■ infrastructure plans and policies.

163 Chapter Ten STRATEGIC ASSESSMENTS AND BIOREGIONAL PLANNING


10.4 A strategic assessment may examine the potential impacts, including cumulative impacts, of actions which are to be taken in accordance with one or more policies, programs or plans. It is a collaborative planning and assessment process undertaken by the Australian Government in conjunction with the person responsible for the adoption or implementation of the policy, program or plan. For example, such persons can include State and Local governments, developers or resource and mining companies.

10.5 A strategic assessment can also consider impacts on the full range of matters of NES associated with implementation of a particular policy, plan or program including world and national heritage values, threatened species, threatened ecological communities, the ecological character of wetlands of international importance, listed migratory species and Commonwealth marine areas.

THE PROCESS FOR A STRATEGIC ASSESSMENT IS OuTLINED IN THE FIGuRE BELOW.

Minister enters into an agreement with another person to undertake a strategic assessment of the impacts of actions under a plan, policy or program

The Department of the Environment, Water, Heritage and the Arts provides advice on the development of the policy, plan or program to ensure that significant impacts on matters of national environmental significance are avoided or mitigated

Terms of Reference (ToR) are prepared for a report on the impacts relating to the agreement

Draft report prepared

Draft report open for public comment for at least 28 days

Minister may recommend modifying the policy, plan or program

Minister may endorse policy, plan or program if appropriate

Minister may approve actions under the policy, plan or program if appropriate (approval may include conditions)

10.6 The EPBC Act has provided for strategic assessments since its inception; however, strategic assessments in their original form were of little benefit to proponents and as such were rarely undertaken. The Senate Committee report notes that ‘prior to 2006, strategic assessments were only undertaken in the area of fisheries, as these were mandatory under the legislation’.1 When the EPBC Act was enacted, the outcomes of a strategic assessment would only be taken into account in deciding the appropriate assessment approach for individual actions under the policy, plan or program. This then required both strategic and project-level assessments and approvals, which may have increased the timeframes involved.

1 The Senate Standing Committee on Environment, Communications and the Arts, The operation of the Environment Protection and Biodiversity Conservation Act 1999: First report (2009) http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/report/report.pdf at 4 May 2009, para [3.44].



10.7 As part of the 2006 amendments, the incentives to undertake strategic assessments were enhanced. When endorsing a policy, plan or program the Minister may now approve actions, or a class of actions, taken in accordance with the endorsed plan, policy or program, thereby removing the need for such actions to also undergo case-by-case approval under the Act. This streamlining creates an incentive for governments, the Minister and proponents to engage in strategic assessments.

application of strategic assessments

10.8 Two types of strategic assessments are available under the EPBC Act – regular (terrestrial) strategic assessments and fisheries strategic assessments.

10.9 To date, three terrestrial strategic assessments have commenced:

■ the common-user liquefied natural gas hub and heritage assessment in the West Kimberley (Western Australia);

■ the Molonglo and North Weston Structure Plan (ACT); and

■ Melbourne’s urban Growth Boundary Expansion (victoria).

10.10 Two strategic assessments were commenced prior to the 2006 amendments and have since been discontinued:

■ offshore oil and gas exploration; and

■ the conduct of major military training exercises.2

10.11 Other strategic assessments are currently in negotiation, for example:

■ Sydney Growth Centres in Western Sydney (NSW);

■ Abbot Point in Bowen (Queensland); and

■ The Perth metropolitan area (Western Australia).

10.12 To date, 18 strategic assessments of Commonwealth-managed fisheries have been completed,3 as specifically required by the Act. Actions done in accordance with a fisheries strategic assessment do not require further approval under the Act.

10.13 As noted in the Discussion Paper for this review, the process for fishery strategic assessment varies slightly from other forms of strategic assessments. However, both processes allow for an ecosystem-based approach to management, whereby multiple proposed actions by different proponents can be considered under a single strategic assessment.

10.14 Fisheries strategic assessments are conducted under Part 10 of the EPBC Act, and in accordance with the 2nd edition of the Guidelines for the Ecologically Sustainable Management of Fisheries, which specify principles for a transparent evaluation of the ecological sustainability of fishery management arrangements.4 Strategic assessment of fisheries is considered in more detail in Chapter 15 of this report, ‘Marine and Fisheries’.

2 Gerard Early, ‘Australia’s National Environmental Legislation and Human/Wildlife Interactions’ (2008) 11 Journal of International Wildlife Law and Policy 101.

3 18 Commonwealth fisheries have been strategically assessed to date. A similar assessment under the EPBC Act has been completed for 102 State and Territory managed fisheries. Copies of the completed fisheries strategic assessments are available at: DEWHA, Commonwealth Managed Fisheries (2009) Coasts and Oceans http://www.environment.gov.au/coasts/fisheries/commonwealth/index.html at 22 April 2009.

4 The Guidelines are available at: Department of the Environment and Water Resources, Guidelines for the Ecologically Sustainable Management of Fisheries (2007) Coasts and Oceans http://www.environment.gov.au/coasts/fisheries/index.html at 11 June 2009.



Bioregional plans

10.15 under section 176 of the EPBC Act the Minister can prepare a bioregional plan for a region that is within a Commonwealth area. ‘Commonwealth area’ includes both Commonwealth land and the Commonwealth marine environment. The Commonwealth can also work with State and Territory governments and others to establish plans extending beyond Commonwealth land and waters.

10.16 Bioregional plans are another form of landscape-scale approach under the Act. They provide a mechanism for identifying the biodiversity, heritage, social and economic values of a particular area, the management objectives and priorities in relation to those values, and strategies and actions for achieving those objectives. Through identification of particular values, these plans can then address the cumulative effects of various actions which may impact upon these values. Bioregional plans can also provide clarity for the context in which environmental impact assessments occur and can inform the location and management of protected areas.

10.17 A bioregion is defined in the explanatory memorandum to the EPBC Act as including:

an area of one whole or several interconnected ecosystems characterised by its landforms, vegetative cover, human culture, and history. In determining the boundaries of a bioregion account will be taken of administrative and other regional boundaries. A bioregional plan provides a ‘blueprint’ for the ecologically sustainable management of natural resources within a bioregion, taking into account social and geographic elements.5

10.18 In terms of administration of the EPBC Act, if a bioregional plan is endorsed under the Act subsequent actions taken in accordance with the plan can be exempted from separate or individual approval. In this respect bioregional plans are not only conservation management plans, but can be used to streamline the environmental assessment and approval process and to reduce the regulatory burden on proponents.

10.19 Bioregional plans are being established throughout Australia’s 14 million square kilometre ocean jurisdiction. The Commonwealth’s marine jurisdiction has been divided into five regions:

■ south-east;

■ south-west;

■ north-west;

■ north; and

■ east.

10.20 Plans will be developed to identify conservation priorities, measures to address those priorities and applicable statutory obligations under the EPBC Act.

10.21 As yet, no bioregional plan has been produced.

conservation agreements

10.22 Conservation agreements are another potential landscape-scale planning tool under the Act.

10.23 Conservation agreements operate on a different scale and have a different purpose to bioregional plans. Conservation agreements are between a person and the Minister, and apply to that person’s land, whereas bioregional plans occur on a broader scale and may involve numerous stakeholders. Conservation agreements are more prescriptive, and are often brought about in response to compliance action.

5 Explanatory Memorandum, Environment Protection and Biodiversity Conservation Bill 1999, para.[280].



10.24 A conservation agreement is an agreement between the Minister and another person for the protection and conservation of:

■ biodiversity;

■ the world heritage values of declared World Heritage properties;

■ the national heritage values of National Heritage places;

■ the Commonwealth heritage values of Commonwealth Heritage places;

■ the ecological character of declared Ramsar wetlands;

■ the environment in respect of the impact of a nuclear action;

■ the environment in a Commonwealth marine area; and

■ the environment on Commonwealth lands.6

10.25 It can also require the owner of a place to:

■ carry out activities that promote the protection and conservation of biodiversity;

■ refrain from, or control, activities that may affect adversely the species, ecological community, or habitat, covered by the agreement;

■ permit access to the place by specified persons;

■ contribute towards the costs incurred under the agreement;

■ spend any money paid to them under the agreement in a specified manner; and

■ forfeit any money paid to them under the agreement if they contravene the agreement;

and may include a declaration that actions of a specified category do not require assessment and approval under the EPBC Act.7

10.26 Actions taken contrary to a conservation agreement may be subject to sanctions, remediation or the imposition of mitigation measures.

10.27 There are currently 12 conservation agreements in place under the EPBC Act. All conservation agreements, as well as notifications when new agreements are concluded, or existing agreements are varied or terminated, are published on the DEWHA website.8

10.28 Conservation agreements are concluded under Part 14 of the EPBC Act.

Key points raised in public submissions10.29 The public submissions expressed a general concern that species-by-species protection, and project-by-project

approval is not protecting biodiversity adequately, and that there needs to be a more holistic approach to management and threat abatement.9

10.30 Submissions were generally positive about landscape approaches under the Act, but critical of the low number of projects commenced to date. The Minerals Council of Australia suggests a movement to a landscape planning model to reduce duplication and regulatory burden, because the current model results in:

■ wasted resources in duplicated planning processes and burn-out of heavily engaged stakeholders;

■ a misalignment of land capability, its use and subsequent water resource requirements;

■ lack of collation and use of the vast amounts of ecological data collected by industry;

■ potential limitations on future land uses based on the location of offset arrangements or conservation agreements, that do not consider future land use options;

6 Environment Protection and Biodiversity Conservation Act 1999, s.305(1).7 Environment Protection and Biodiversity Conservation Act 1999, s.306A.8 Copies of the completed conservation agreements are available at: http://www.environment.gov.au/epbc/about/conservation-agreements.html#list9 See e.g. Submission 191: Conservation Council of South Australia; and Submission 132: Mr Jeremy Tager.



■ a lack of understanding among stakeholders regarding land use planning, access arrangements, and future land use potential;

■ perverse interactions between market-based instruments and existing regulatory arrangements; and

■ a fragmented approach to stakeholder engagement, resulting in stakeholders being unaware of the implications of some land use planning decisions on their future social and economic opportunities.10

10.31 The Australian Conservation Foundation (ACF) recommended a movement to landscape-scale assessments to encourage more proactive mechanisms in the EPBC Act. The ACF is critical of reactive processes because:

■ healthy ecosystems are not protected until they come under serious pressure;

■ the assessment and recovery regimes have not been able to cope effectively with cumulative impacts; and

■ reactive assessment processes do not canvass alternatives to project proposals.

10.32 The ACF concluded that ‘proactive planning processes hold great promise as a way of overcoming these limitations and ensuring real biodiversity protection over ecologically coherent areas.’11 The Government of Western Australia is similarly supportive of landscape approaches which provide opportunity for Commonwealth and State governments to become engaged at the early stages of program development.12

10.33 The Australian Network of Environmental Defenders’ Offices (ANEDO) supports moving away from site-by-site assessments because it will broaden the scope of decision-making and reduce fragmentation and degradation of habitats.13

10.34 WWF indicated support for tools which take a ‘whole of landscape’ approach, but emphasised that these must be funded adequately.14

10.35 The National Parks Australia Council noted the additional pressures climate change will be placing upon species, and how species-by-species protection will not be sufficient in light of these pressures. The Council suggest that the focus of the EPBC Act needs to be on landscape connectivity.15 The CSIRO and ANEDO also contended that landscape-scale assessments are required to manage the additional pressures on biodiversity expected from climate change.16

10.36 In discussing landscape approaches, the majority of public comments focused on existing processes such as strategic assessments, bioregional planning and conservation agreements.

strategic assessments

10.37 The majority of submissions on landscape-scale assessment methods considered strategic assessments.

10.38 Submissions on strategic assessments generally believed they would be more appropriate in dealing with cumulative impacts than project-by-project assessments.17 The Southern Rivers Catchment Management Authority submitted that:

while each individual development may not be considered a ‘significant impact’, holistic examination reveals their cumulative significance to be pronounced. Given that it relates to matters of ‘National Environmental Significance’ (NES) the Act should require assessment of the cumulative impacts at a regional scale.18

10 Submission 164: Minerals Council of Australia, pp.15-16.11 Submission 194: Australian Conservation Foundation, p.8.12 Submission 201: Government of Western Australia.13 Submission 189: Australian Network of Environmental Defender’s Offices.14 Submission 181: WWF, p.19.15 Submission 161: National Parks Australia Council.16 Submission 189: Australian Network of Environmental Defender’s Offices; and Submission 135: CSIRO.17 See e.g. Submission 153: The Wilderness Society.18 Submission 151: Southern Rivers Catchment Management Authority, pp.4-5.



10.39 However, some submissions raised concerns about the strategic assessment process, and believed that it does not guarantee a positive environmental outcome.19 The ANEDO, for example, only supports strategic assessments that are ‘subject to robust and strict criteria.’20 The ANEDO was concerned about the capacity for the Minister to approve actions that were inconsistent with a completed strategic assessment. The ANEDO was also concerned that the EPBC Act does not specify the types of conditions of approval that may be placed on a strategic assessment and how these could be enforced.21 The Nature Conservation Council of NSW submitted that the precautionary principle should apply to strategic assessment decisions.22

10.40 There was also a concern from State and Territory Governments that an increasing emphasis on strategic assessments would create a greater reliance on State and Territory Governments to carry out the strategic assessments.23 The alternate view is that these approaches create an opportunity to harmonise Commonwealth and State Territory environmental requirements, creating an opportunity to avoid inefficient regulatory processes.

10.41 Industry groups raised other concerns about strategic assessments. The South Australian Chamber of Mines and Energy submitted that, if strategic assessments are adopted to regulate actions, ‘certainty for proponents around matters of NES is essential.’24 The Australian Petroleum Production and Exploration Association (APPEA) asserted that ‘the strategic assessment process has led to additional regulatory costs for some operators’ because strategic assessments may commence ‘after companies had, in good faith, already undertaken detailed site selection, agreed guidelines and scoping for the environment assessment and had spent significant amounts of time and millions of dollars on studies’.25

10.42 APPEA has further concerns about the timeliness of strategic assessments.26 The urban Development Institute of Australia has questioned the benefit of ‘early engagement’ in reducing assessment timeframes, suggesting that it ‘is perceived to generate more problems and issues than are resolved’.27

10.43 The WWF notes that strategic assessments are still in their infancy.28 Submitters suggested numerous mechanisms by which the quality of strategic assessments could be improved. Three themes that arose in these submissions were that strategic assessments should be:

■ rigorous, of high quality and deliver environmental outcomes;29

■ sufficiently flexible and capable of adaptive management;30 and

■ efficient, provide certainty and benefit proponents by reducing regulatory burden.

10.44 The efficiency of strategic assessments has been supported by the Council of Australian Governments’ (COAG) Business Regulation and Competition Working Group, which noted that ‘strategic assessments provide certainty for development proponents and reduce duplication, while providing greater protection for the environment.’31

19 See e.g. Submission 188: National Conservation Council of New South Wales.20 Submission 189: Australian Network of Environmental Defender’s Offices, p.35.21 Submission 189: Australian Network of Environmental Defender’s Offices.22 Submission 188: Nature Conservation Council of New South Wales.23 Submission 154: Department of Natural Resources, Environment, the Arts and Sport (Northern Territory); and Submission 201: Government of

Western Australia.24 Submission 111: South Australian Chamber of Mines and Energy, p.4.25 Submission 073: Australian Petroleum Production and Exploration Association, p.21. 26 Submission 073: Australian Petroleum Production and Exploration Association; this concern has also been expressed in Submission 172:

Department of Sustainability and Environment (victoria).27 Submission 095: urban Development Institute of Australia, p.7.28 Submission 181: WWF.29 See e.g. Submission 189: Australian Network of Environmental Defender’s Offices; and Submission 047: Landcom.30 See e.g. Submission 027: Associate Professor Paul Adam; and Submission 101: Mr Jamie Pittock, Dr Debra Saunders and Ms Karen Stagoll.31 Council of Australian Governments’ Business Regulation and Competition Working Group, Communiqué from meeting of 3 July 2008 (2008)

http://www.coag.gov.au/coag_meeting_outcomes/2008-07-03/docs/business_regulation_competition_working_group.rtf at 21 May 2009.



10.45 Several submitters requested that strategic assessments be undertaken of particular plans, policies or programs.32 Others indicated that where the person responsible for the adoption or implementation of the plan, program or policy may be unwilling to agree to a strategic assessment, the Minister should have powers to ‘call in’ a plan, policy or program for strategic assessment.

Bioregional plans

10.46 Submissions from environmental and industry groups generally believed that the bioregional planning provisions have promise. The ACF is strongly supportive of the bioregional planning provisions, which it believed are ‘among the most important available tools in the Act’.33 The ACF further submitted that bioregional plans can:

enable coordinated management and protection of ecological processes as well as specific species and communities through maintaining ecosystem integrity, managing threats such as weeds, feral animals and fire, dealing with cumulative impacts and providing parameters within which activities must operate in a sustainable manner.34

10.47 The WWF supported the capacity for bioregional planning to ‘provide baseline data to inform planning and prioritise management interventions’, and as such expressed the need for the Australian Government to assist State and Territory governments in completing these plans.35

10.48 APPEA believed that ‘bioregional plans are a significant step in providing the long term certainty needed for the development of Australia’s oil and gas resources and meeting Australia’s significant energy needs.’36 APPEA recommended that the development of bioregional plans be staged and that industry should be notified of upcoming changes to regulatory systems.

10.49 Some environmental groups expressed concerns over bioregional plans and requested further legislative criteria to guide the planning process. The ACF was concerned about the potential for Part 3 of the EPBC Act to not apply to actions taken in accordance with a bioregional plan, in light of the fact that there are neither mandatory requirements for the content of bioregional plans, nor any requirement for public consultation on proposed plans. The ACF further suggest that bioregional plans should have to be consistent with recovery plans, conservation advices, threat abatement plans or wildlife conservation plans made under the Act, similar to the requirements for conservation agreements.37

10.50 Submissions discussed why no bioregional plans had been produced. Some noted the limitation on the Commonwealth’s ability to prepare bioregional plans for non-Commonwealth land and marine areas in the absence of agreement from the relevant State or Territory as a possible contributing factor to the low number of plans commenced. To this end, the ACF suggested that significant resources and incentives would be required to establish a bioregional plan that would occur on non-Commonwealth land.38 The WWF submission similarly suggested that the development of bioregional plans ‘would require engagement of all levels of government as well as community and industry, must be based on the best available science that is up-to-date and has a high level of continuity over time’.39

10.51 The Association of Mining and Exploration Companies (AMEC) discussed the information requirements of bioregional plans, and suggest that ‘the availability and accessibility of environmental protection and biodiversity conservation data and relevant information is fundamental’40 to bioregional plans. AMEC suggested that there is not data available to develop bioregional plans adequately, and that this may be an impediment to the creation of such plans.

32 For e.g. Submission 127: Peel-Harvey Catchment Council; and Submission 33: Hunter Bird Observation Club.33 Submission 194: Australian Conservation Foundation, p.8.34 Submission 194: Australian Conservation Foundation, p.9.35 Submission 181: WWF, p.18.36 Submission 073: Australian Petroleum Production and Exploration Association, p.22.37 Submission 194: Australian Conservation Foundation.38 Submission 194: Australian Conservation Foundation.39 Submission 181: WWF, p.12.40 Submission 049: Association of Mining and Exploration Companies, p.3.



conservation agreements

10.52 Public submissions did not comment on conservation agreements extensively. The Conservation Council of the ACT criticised the situation whereby Part 3 of the EPBC Act may not apply to certain actions taken under a conservation agreement. This is because, in the Council’s view ‘these types of agreements have the potential to achieve positive environmental outcomes when used in concert with rather than instead of the referrals, assessment and approvals process’.41

10.53 The Australian Council of National Trusts called for conservation agreements to be attached to land title, so that the agreements bind future landowners and can be effective in practice.42

10.54 The New South Wales Government provided the example of a potential conservation agreement to facilitate the sale of an area of land owned by the Department of Defence in Edmondson Park in the South West Growth Centre of Sydney. They submitted that ‘this could provide a strategic approach for the management of lands previously owned by the Commonwealth but being disposed of to become a future growth area’.43

10.55 The ACF recommended that the Act be amended so that conservation agreements specifically require consideration of cumulative impacts and be required to recommend actions to avoid, minimise or mitigate these impacts.44

other options

10.56 The National Parks Australia Council noted that:

the big drawback to a landscape approach to conservation is that it appears too difficult to establish a national classification of landscapes and ecological systems which would be sufficiently robust to survive the legal processes to which it would be subjected. The bioregional provisions of the Act are an attempt to set up such an operation but it has proven time consuming and unwieldy.45

10.57 The National Parks Australia Council suggested that the National Reserve System (NRS) may already provide the necessary classification of landscapes. They suggest that providing the NRS with a special status under the EPBC Act, with specific provisions for assessment and management of changes to land use within the larger NRS landscapes identified.46

senate inquiry into the operation of the ePBc act

10.58 The Senate Committee’s first report recognised the role of strategic assessments in addressing cumulative impacts. However:

The committee notes that, while strategic assessment has some support, in the one area in which it has been regularly applied under the Act – ocean fisheries – the committee received submissions indicating that not all stakeholders are happy with the processes and their results.47

10.59 The Senate Committee’s report examined strategic assessments completed under alternative strategic assessment regimes – the Committee provided examples of State Environmental Planning Policies in NSW and Regional Forestry Agreements – and concluded that strategic assessments ‘have had a mixed record in the eyes of stakeholders when it comes to facilitating environmental protection’.48 The Committee further suggested that ‘while strategic impact assessments appear to be supported in theory, the evidence suggests they may be controversial in practice’.49

10.60 The Committee suggested that in addition to strategic assessments, the listing of key threatening processes

41 Submission 055: Conservation Council (ACT Region), p.27.42 Submission 039: The Australian Council of National Trusts.43 Submission 205: Government of New South Wales, p.3.44 Submission 194: Australian Conservation Foundation.45 Submission 161: National Parks Australia Council, p.7.46 Submission 161: National Parks Australia Council.47 Senate Committee Report, para [3.52].48 Senate Committee Report, para [3.52].49 Senate Committee Report, para [3.53].



and critical habitat, direct regulation and creation of threat abatement and recovery plans may also address cumulative impacts.

10.61 The Committee did not consider bioregional plans, conservation agreements or other landscape approaches.

Discussion of key points

Benefits of landscape approaches

10.62 The Department has described the benefit of adopting landscape-scale assessment approaches over case-by-case assessments, as allowing:

■ early consideration of matters of national environmental significance in the planning processes;

■ greater certainty to the local communities and developers over future development;

■ reduced administrative burden for proponents and governments;

■ increased capacity to achieve better environmental outcomes and address cumulative impacts at the landscape level including an opportunity to consider the cumulative impacts of a number of actions proposed for an area or region; and

■ more flexible timeframes to meet planning processes better.50

10.63 Public comments also noted additional potential benefits of other landscape-scale assessments, including the capacity to steer development toward environmentally ‘robust’ areas or away from environmentally sensitive sites; better capacity to consider ancillary and indirect impacts; and, capacity to better consider alternatives and better balance the principles of ecologically sustainable development (ESD).

10.64 Landscape-scale assessments may allow the focus to move beyond individual species, and may provide greater protection for biodiversity in the face of climate change. It has also been suggested that landscape-scale approaches will allow the Commonwealth to take a more proactive approach to environmental management.51

10.65 The support for landscape-scale assessments from a wide range of submissions, including from business, industry, local government and environmental NGOs, indicates that this is an important area for this review to explore. The potential for landscape-scale assessments to ameliorate the problems associated with project-by-project assessment is promising.

undertaking landscape‑scale assessments

10.66 Several submitters were cautious about the proposed benefits of landscape-scale assessment. It was suggested that the Department had only commenced a limited number of terrestrial landscape-scale assessments, and this impeded adequate evaluation of the outcomes of such projects.

10.67 It is noted that the number of assessments commenced have been increasing over time, and that the primary drivers behind this have been:

■ providing incentives to proponents and State governments to undertake landscape-scale assessments (as seen in the increase in strategic assessments since the 2006 amendments which allow for strategic assessments to remove requirements of further approvals); and

■ making strategic assessments or bioregional plans a mandatory requirement under the Act (as seen in the high number of completed fisheries strategic assessments).

10.68 Two specific issues were raised in regard to the number of landscape-scale assessments, the process of initiating a strategic assessment and the requirement that a bioregional plan have a Commonwealth land nexus.

50 DEWHA, Strategic Assessment under the EPBC Act (2008) http://www.environment.gov.au/epbc/publications/pubs/strategic-assessment.pdf at 11 June 2009.

51 Submission 097: Mr Peter Hemphill and Mr Tom Kaveney.



Strategic assessments - initiation

10.69 Several submitters requested that strategic assessments be undertaken of particular types of plans, for example local land use plans,52 natural resource management regimes53 and catchment management plans.54

10.70 The City of Wanneroo was uncertain as to whether a Local Government has the ability under the Act to ‘facilitate a strategic assessment on a proponent’s behalf, but not necessarily with that proponent’s support’, and was seeking clarity on this issue.55

10.71 As noted above, the strategic assessment process has been a collaborative effort between the Australian Government and the person responsible for implementing the policy, plan or program, usually a State or Territory Minister or Government Department, and could also include Local Councils. The process may be initiated by either the Australian Government or the person responsible for the plan, policy or program but can only commence with mutual agreement. The Minister wrote to State and Territory Environment Ministers in mid-2008 seeking opportunities to undertake strategic assessments. This resulted in the initiation of two strategic assessments: the Molonglo in the ACT and Melbourne growth centres in victoria.

10.72 There is the possibility of a power to ‘call in’ plans, policies or programs (existing or under preparation) for strategic assessment. Another possibility is for the Commonwealth to have the power to embark unilaterally on strategic planning. The exercise of these powers would alter the collaborative approach used in strategic assessments to date and may engender difficulties in gathering information and subsequent compliance. These powers may be necessary if the Commonwealth is to act in a genuinely proactive way which is critical to strategic assessment; for the Commonwealth to have to wait for the agreement of a proponent may prevent this.

Bioregional plans - Commonwealth land requirement

10.73 A number of submitters were critical that no terrestrial bioregional plans have commenced to date, compared to the number of proposed marine bioregional plans. It was suggested that the opportunities to undertake terrestrial bioregional plans were limited by the requirement that they can only be applied to areas within or containing Commonwealth land. One possibility is for the Commonwealth land requirement to be abolished, so as to encourage a joint planning process with the State and Territories and guide planning as well as decision-making under the Act. This would have implications for the existing division of roles and responsibilities for land management between the Commonwealth and State and Territory governments.

Biocertification

10.74 There was some support from submissions for the approach being taken by the Government of New South Wales in biocertification of Local Environment Plans (LEP) under the Environment Protection & Assessment Act 1979. To date, the Sydney Growth Centre LEP has received biocertification and, at the time of writing, the proposed biocertification of the Wagga Wagga LEP was available for public comment.56

10.75 The NSW Government considers that biocertification provides a number of practical benefits.57 It allows up-front assessment of conservation values, enables informed community participation in planning decisions and reduces the potential for land-use conflict. The aim of biocertification is to create greater certainty of planning outcomes for development projects in areas zoned for development, while providing opportunities to assist in reversing the long term decline in biodiversity.58 It is worth noting however, that biocertification is triggered by state-listed threatened species and ecological communities, is voluntary and councils may choose not to use it.

52 Assessment of local plans was supported in Submission 176: Property Council of Australia.53 Submission 173: Conservation Council (Western Australia).54 Submission 104: Professor David Farrier.55 Submission 146: City of Wanneroo, p. 3.56 Department of Environment and Climate Change NSW, Notices of biodiversity certification (2009)

http://www.environment.nsw.gov.au/biocertification/notcert.htm at 15 May 2009.57 Department of Environment and Climate Change NSW, Notices of biodiversity certification (2009)

http://www.environment.nsw.gov.au/biocertification/notcert.htm at 15 May 2009.58 Department of Environment and Climate Change NSW, Notices of biodiversity certification (2009)

http://www.environment.nsw.gov.au/biocertification/notcert.htm at 15 May 2009.



evaluation of landscape‑scale assessments

10.76 Support for landscape-scale assessments has often been displayed with some caution – as was expressed, for example, in the Senate Committee’s report. Public comments indicate three types of desired outcomes from landscape-scale assessments:

■ that they be rigorous, of high quality and deliver environmental outcomes;

■ that they be sufficiently flexible and capable of adaptive management; and

■ that they be efficient, provide certainty and benefit proponents by reducing regulatory burden.

rigorous, high quality and producing environmental outcomes under strategic approaches

Strategic assessments

10.77 The ANEDO outlined the need for particular rigour in undertaking strategic environmental assessments (SEAs), because:

given the consequences of SEAs, in that no further environmental assessment is required for areas, SEAs must be subject to strict criteria, comprehensive assessment tools and genuine public consultation provisions … There is a danger that if not done properly, strategic assessments will instil a much lower level of environmental protection than a site by site approach.59

10.78 Submissions were concerned by the absence of prescribed requirements for strategic assessments. This included both what was needed to be in the plan, policy or program, and sufficient mandatory considerations for the Minister to be satisfied of before approving a strategic assessment.

10.79 Submitters suggested various methods by which the rigour of a strategic assessment could be ensured, including increasing the timeframes for public comments on strategic assessments from 28 days to 90 days,60 requiring an explicit consideration of whether the strategic assessment manages cumulative impacts, requiring adequate scientific assessment,61 subjecting strategic assessments to the precautionary principle,62 or limiting strategic assessments to only those circumstances where specific actions can be clearly anticipated.63 There was additional deliberation about whether these additional requirements should be included in the text of the Act, the Regulations or in policy documents produced by the Department. Countering the desire for greater criteria were submissions calling for greater flexibility, so that a variety of approaches can be taken toward strategic assessment.64

10.80 The ANEDO provided additional information to the review which supported specific criteria to structure the ministerial discretion available in approving a strategic assessment.65 At the heart of making a strategic assessment they believe there should be a requirement to ‘improve or maintain’ (similar to the test for BioBanking in NSW). Criteria to be considered by the Minister when deciding whether to approve a strategic assessment, could include a requirement to consider that areas of high conservation value for protected matters must be protected, and that areas of lower value can be cleared or offset.

10.81 The ANEDO further noted that there may need to be some discretion in undertaking strategic assessments due to the complexity of the tasks and the variations in plans, policies and programs assessed. They therefore recommend that the Minister may be able to override the criteria if it is believed that a better environmental outcome could occur with a minor variation of the rules.66 This may be best determined by an expert panel.

59 Submission 189: The Australian Network of Environmental Defender’s Offices, pp.10 and 35.60 Submission 194: Australian Conservation Foundation.61 Submission 189: Australian Network of Environmental Defender’s Offices; and

Submission 188: National Conservation Council of New South Wales.62 Submission 188: Nature Conservation Council of New South Wales.63 Submission 101: Mr Jamie Pittock, Dr Debra Saunders and Ms Karen Stagoll.64 Submission 191: WWF.65 This was also called for in Submission 182: Humane Society International.66 Submission 189: The Australian Network of Environmental Defender’s Offices.



10.82 The ANEDO also noted the matters that they believe should be considered in making a decision on a strategic assessment. These include:

■ the strategic assessment report;

■ any report by the expert panel;

■ any public submissions on the strategic assessment report; and

■ any public submissions made to the expert panel.67

10.83 In its submission, the ACF suggested that the Minister should also be required to consider impacts on the broader environment—not just matters of NES—when making decisions about strategic assessments.68

10.84 The three strategic assessments commenced have all had Terms of Reference negotiated subject to a common set of ‘Strategic Assessment Endorsed Criteria’.69 These criteria include the extent to which a plan, policy or program protects the environment (focusing on matters of NES), promotes ESD, promotes the conservation of biodiversity and provides for the protection of heritage. They also set out minimum standards of acceptable environmental impacts, and a set of higher level considerations. These endorsed criteria guide the negotiations of the Terms of Reference between the parties to the agreement. The Terms of References are intended to make the criteria more specific to suit the particular plan, policy or program being assessed.

10.85 In undertaking strategic assessments and drawing on existing project-by-project assessment approaches, the Department is developing strategic assessment practice. The Department continues to develop policies, workflow systems and processes relating to strategic assessments. Guidance is available from international literature and practice, but the extent to which it is applicable to the EPBC Act circumstances may be limited by differences in landscape, ecology and government structures.

10.86 At a workshop on landscape approaches conducted by the review in April 2009, the possibilities of such assessments were considered and it was emphasised that many conservation plans were not implemented. Workshop participants argued for a shift in rhetoric from ‘plans’ to ‘agreements’, and for systems in which actions, rather than species or communities, are prioritised. It was stressed that these plans needed not only to promote certain outcomes but also to stop others.

Bioregional plans

10.87 Suggestions were also made to improve the rigour of future bioregional plans. Currently, the EPBC Act specifies that the Minister must have regard to a bioregional plan in making any decision under the Act to which the plan is relevant, for example making a controlled action decision or issuing a permit. In their additional comments to the Senate Committee’s report, the Australian Greens indicated that they were concerned by the ‘lack of a requirement that the minister comply with a bioregional plan (rather than simply “…have regard for…”).’70 The practical consequences of changing this requirement are uncertain as no bioregional plans are yet afoot. The issues associated with fettering ministerial discretion are discussed further in Chapter 19 of this report.

67 Submission 189: The Australian Network of Environmental Defender’s Offices.68 Submission 194: Australian Conservation Foundation.69 See the Kimberley agreement, available at: DEWHA (2009) http://www.environment.gov.au/epbc/notices/assessments/pubs/kimberley.pdf at 19

May 2009, p. 17; the Molonglo and North Weston Structure Plan agreement, available at: DEWHA (2009) http://www.environment.gov.au/epbc/notices/assessments/pubs/act-terms-of-reference.pdf at 19 May 2009, p.5; and the Melbourne urban Growth Centre agreement, available at: DEWHA (2009) http://www.environment.gov.au/epbc/notices/assessments/pubs/melbourne.pdf at 19 May 2009, p.13.

70 Senate Committee Report, Additional comments from the Australian Greens, p.101.



flexible and capable of adaptive management

10.88 Certain groups were concerned about the capacity for landscape-scale assessments to ‘lock in’ a particular approach to biodiversity management. In this case the landscape approaches may not be sensitive to new information, for example the listing of a species or discovery of a threatened species in a new area. Submissions stressed the importance of a reporting mechanism, preferably linking the plans to particular measurable values, and allowing capacity for periodic review. Another approach suggested was that the Minister retain some capacity to intervene when circumstance change and the landscape-scale assessment is no longer achieving its objectives.

10.89 While a ‘trigger’ for ministerial intervention is contentious, because part of the benefit of landscape-scale assessment is providing certainty to governments and proponents, there are valid arguments for the Minister retaining a role in monitoring the implementation of landscape assessments and taking action in cases where the terms of the relevant agreement, policy or plan have not been complied with or are no longer appropriate, or where new information arises that may need to be accommodated in a revised set of conditions for the plan.

efficient, providing certainty and benefiting proponents by reducing regulatory burden

10.90 Public submissions were concerned about the effort required to undertake large scale and complicated landscape-scale assessments. Solutions included accreditation of existing local area plans in a similar process to biocertification in NSW, as discussed above.

10.91 A concern was expressed that landscape-scale assessment should not occur in areas where substantial planning has already been undertaken, as it will either duplicate the planning or disrupt existing plans. However, this review notes that the existence of such a State or Territory plan will not, of itself, ‘turn off’ the application of the EPBC Act in circumstances where the Act is triggered. In such cases there may be real efficiencies to be gained in subjecting the relevant plan to a landscape-scale assessment under the EPBC Act.

10.92 Regarding strategic assessments, there was a push to insert statutory timeframes into the Act and to specify the information requirements for these assessments.71 The review considers that there is merit in these suggestions but notes that inserting timeframes may result in practical difficulties, and counter the objective of flexibility.

71 Submission 097: Mr Peter Hemphill and Mr Tom Kaveney.

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