Commonwealth environmental referrals and approvals

This page may be relevant if:

• A proposal may affect nationally protected species, ecological communities, heritage or other protected matters
• You need to decide whether to refer a proposal or understand a published referral
• A Commonwealth decision, assessment requirement or proposed condition may affect the project
• A project change, acquisition or financing arrangement requires review of existing approvals

What this usually means

• The Environment Protection and Biodiversity Conservation Act 1999 (Cth) requires a person proposing an action they think may be, or is, a controlled action to refer it for a decision, subject to the statutory exceptions. A controlled action is one requiring approval under the Act. The inquiry includes significant impacts on matters of national environmental significance and other applicable protections, including those involving Commonwealth land.
• Referral, assessment and approval are distinct steps. A referral may establish that approval is unnecessary, including because the action will be taken in a specified manner. A controlled-action decision identifies the protected matters requiring assessment and approval. It is not permission to proceed. The Act also allows an early decision that a proposal is clearly unacceptable.
• A qualifying State assessment may be used through a bilateral agreement or an accredited process. That does not itself remove a Commonwealth approval requirement. A separate approval exemption must have a legal basis that covers the particular action. NSW consent should therefore be checked alongside the Commonwealth position.
• Commonwealth reforms are commencing in stages. Referral and decision dates, the applicable assessment pathway and transitional provisions must be checked before relying on a new process or assuming an existing decision remains sufficient.

What commonly matters

1. 01

   The whole action and its impacts

   The assessment should address the project footprint, stages and related works, together with relevant indirect impacts. Separating construction into contracts or stages does not settle the legal scope of the action. Maps and desktop searches need to be tested against the proposal and available evidence.

2. 02

   Evidence, alternatives and timing

   Survey seasons, technical studies and information requests can affect timing and cost. Examining alternative locations, designs and methods early may identify ways to avoid or reduce impacts. Proposed mitigation or offsets do not guarantee approval, and restrictive conditions may affect feasibility.

3. 03

   What the decision actually permits

   Check the action described, approved plans, conditions and any specified manner of carrying out the work. A design change, transfer or construction commitment may require further steps. Referral can itself restrict commencement, including components of the referred action, so check the applicable statutory exception before preparatory work. Starting outside the authorised scope or breaching conditions can expose those responsible to enforcement.

4. 04

   Participation and disputed decisions

   Public comments should address the relevant protected matters and supporting evidence. Reconsideration and court proceedings have different requirements. We assess the available route, standing, timing, prospects and costs, including the risk of an adverse costs order, before recommending a challenge.

How we help

• Assess referral requirements, the scope of the action and the evidence needed
• Review referral and assessment material and coordinate the legal and technical issues
• Advise on State assessment coordination, proposed conditions and approval sequencing
• Review project changes, approval transfers and compliance obligations in transactions
• Prepare submissions and advise on reconsideration, enforcement and available court proceedings