Assessment of development proposals

Environmental Impact Statement (EIS)

An Environmental Impact Statement (EIS) is a document that assists the ACT government and the general public to understand the environmental impacts that a development proposal would have if it were to go ahead as planned. It is different to a PR or SEA in that it focuses on an individual development rather than development at the strategic planning level. An EIS is not prepared for strategic level planning proposals such as amendments to the TP or plans of management for public land, or the grant of leases.

When is an EIS required?

An EIS can be initiated through the Planning Act, the Environment Protection Act 1997 (ACT) (‘Environment Protection Act’) or the Public Health Act 1997 (ACT).

Under the Planning Act, an EIS is required if a development proposal is in the impact track (s 127), unless the minister grants an exemption under section 211H on the basis that the impacts of the proposal have been assessed by another study (see below for more information). Generally, development proposals which are in the impact track require an EIS. These include proposals that are:

• listed as impact assessable in the relevant TP development table for the zone (s 123(a))
• listed in Schedule 4 of the Planning Act (s 123(b))
• not provided for elsewhere, that is, not an exempt or prohibited development and the development table does not state which assessment track applies (s 132).

Under the Planning Act, an EIS must also be prepared if:

• under section 124, the minister has required it (s 123(c))
• under section 125, the Health minister has declared an application to be s 125-related, thus requiring the preparation of an EIS (s 123(d)) (see also s 134 of the Public Health Act 1997 (ACT))
• under a bilateral agreement with the Commonwealth, the relevant Commonwealth minister has advised the ACT minister that the development is subject to the EPBC Act, but does not require assessment under that Act if it is assessed under the Planning Act (s 123(e)).

Section 94(2) of the Environment Protection Act also provides that an EIS can be required for activities (not subject to a development application) that require an environmental authorisation under that Act.

The EIS process

Under the Planning Act, development is classified as being exempt, assessable or prohibited. Assessable development is further split into ‘tracks’ based upon the complexity, nature and scale of development—that is, the code track, the merit track and the impact track. Impact track developments, being at the higher end of the track system, undergo the most intensive assessment compared with the other tracks. Impact track developments are assessed against not only the specific rules and criteria in the TP, but also against an EIS. As noted above, a development will be impact track assessable if it is identified as such in a development table of the TP, is a development of a kind mentioned in Schedule 4 of the Planning Act, or is not provided for elsewhere, that is, it is not an exempt or prohibited development, and the development table does not state which assessment track applies (see Chapter 3 in this Handbook for further discussion of development assessment and approval).

After a development proposal is designated as a proposal for which an impact track development application must be made, the proposal is subject to a staged assessment and approval process. The first stage is comprised of an EIS process and the second stage is comprised of the application and approval process.

The EIS process is described in chapter 8 of the Planning Act and is represented diagrammatically on the next page.

What is a scoping document?

A scoping document is a written notice prepared by ACTPLA that sets out the matters that must be addressed by the proponent in preparing the draft EIS (s 212).

The scoping process entails:

• identification of the environmental impacts a development proposal will or may have and presentation of these matters in an initial scoping document
• consultation with prescribed entities regarding the matters to be addressed that have been identified in the initial scoping document (for the entities that must be consulted and the entities that may be consulted, see reg 51)
• ACTPLA consideration of the information received as a result of this restricted consultation and finalisation of the scoping document
• provision of the finalised scoping document to the proponent (s 214).

The scoping document must include the minimum content for scoping documents prescribed by the Planning Regulation (reg 54). ACTPLA may also include in the scoping document a requirement that the proponent engage a consultant to help prepare the EIS (s 213(2)).

Procedure for the preparation and submission of an EIS

The scoping document must be provided to the proponent no later than 30 working days after the application is made unless the Chief Planning Executive (the CEO of ACTPLA) has allowed a further period for provision of the scoping document (s 214). A scoping document is valid for 18 months after the day the document is given to the proponent (s 215).

Who prepares an EIS?

An EIS is generally prepared by the proponent, that is, the person proposing the development or the person or territory authority designated by the minister as the proponent under section 207. As noted above, ACTPLA may require that the proponent engage a consultant to help prepare an EIS for the proposal (s 213(2)).

The proponent is not required by ACTPLA to engage a particular consultant. The proponent is able to engage a consultant of the proponent’s choice provided that the consultant is a person that ACTPLA is satisfied holds professional qualifications relevant to preparing an EIS, has experience in preparing an EIS, and the capacity to prepare an EIS (reg 55).

What must the EIS address?

Both the draft EIS and revised EIS (see below) must address each matter that is raised in the scoping document for the development proposal. The Planning Regulation provides a detailed list of the items that must be included in an EIS (reg 50). After the revised EIS is submitted to ACTPLA, it is assessed to determine whether it has sufficiently addressed each matter raised in the scoping document (s 222). If a matter has not been sufficiently addressed, ACTPLA may provide the proponent with a further opportunity to address any outstanding matters (s 224). Failure to sufficiently address the matters raised in a scoping document may lead to ACTPLA refusing to accept the revised EIS (s 224A).

How can the public participate in the EIS process?

The public has the opportunity to participate in the EIS process when the draft EIS is publicly notified (s 217). After the draft EIS is submitted to ACTPLA, it places a notice on its website and in the Canberra Times. The information publicly notified includes the availability of the draft EIS for public inspection for a minimum period of 20 working days (s 218) plus details of how and when representations can be made on the draft EIS (s 217). Under a bilateral agreement, the public must be given at least 28 days to provide comments on the EIS.

Members of the public are entitled to make written submissions which must be received by ACTPLA by the closing date indicated for the EIS (s 219). ACTPLA provides no specific guidelines on how to prepare a submission; however, there is a specific suggestion on the ACTPLA website that the grounds for any objections should be clearly stated. Submissions can be provided to ACTPLA in person, by post, email or fax (see Contacts list at the back of this book).

Representations may be withdrawn at any time before ACTPLA has accepted the revised EIS (s 219). Under section 220 of the Planning Act, submissions are available on the ACTPLA website until the EIS is completed or the representation is withdrawn. The submissions also must be given to the proponent of the development proposal. In preparing the revised EIS the proponent must address any representations made during the public consultation period (s 221).

Inquiry into EIS

The Planning Act allows the minister to establish an inquiry under section 228. While in some cases the Minister for Health may decide that an inquiry should be established to assess public health impacts of a proposal (s 228(3)), it remains the responsibility of the Minister for Planning to establish an inquiry. The minister appoints the person or persons to constitute a panel to conduct the inquiry, determines the terms of reference for the inquiry, notifies the proponent of the inquiry and notifies the terms of reference under the Legislation Act 2001 (ACT) (ss 228-229 of the Planning Act).

The minister must appoint persons with the necessary expertise to the inquiry panel and is not permitted to appoint the following persons: the CEO or a member of staff of ACTPLA; a member of staff of the Land Development Agency; or a person prescribed by regulation (s 229(4)).

A panel of inquiry must conduct its business having regard to the procedural requirements for inquiries found in part 4.2 of the Planning Regulation. These include a requirement that an inquiry must ordinarily be held in public (reg 76) and provisions for ‘interested persons’ to make submissions (reg 77(4)-(5)). A panel must not be directed by the minister as to the findings or conclusions that the panel should reach (s 231).

Exemptions

Under section 211B of the Planning Act, an applicant may seek an exemption from the requirement to prepare an EIS. An exemption may be granted if the minister is satisfied that the expected environmental impact of the development proposal has already been sufficiently addressed by a previous studies (s 211H(2)). The minister must consider information provided in accordance with regulation 50A of the Planning Regulation and the matters specified in section 211H(3).

The application must be accompanied by supporting information including a description of the proposal, a preliminary risk assessment, details regarding the previous studies, and details of public consultation which has been undertaken. If the minister decides to grant an exemption, it will be published on the Directorate’s website.

Procedure for obtaining an EIS exemption

When is the EIS process complete?

Under section 209, if the minister has given ACTPLA notice that he or she has decided to take no action in relation to an EIS, or at least 15 working days have elapsed since receiving the EIS from ACTPLA, and the minister has not decided in that time to establish a panel to inquire about the EIS, then the EIS is regarded as being completed and the minister cannot thereafter establish an inquiry. If the minister has made a decision to establish an inquiry no later than 15 working days after receiving the EIS from ACTPLA, then the EIS is not completed until the inquiry panel has submitted a report or has failed to produce a report by the stipulated date for reporting.

Section 209A (regarding the section 125-related EIS prepared for a DA in relation to which the Public Health Act Minister has made a declaration) works on the same premise as section 209, albeit complicated by the addition of the Health Minister to the process.

Sections 209 and 209A are indicative of the time-frame-driven nature of the Planning Act and the commitment of ACTPLA to meeting timeframes and deadlines. These sections highlight for the planning minister and the health minister the importance of making timely decisions with respect to establishing inquiries. These sections also create serious consequences where an inquiry panel fails to produce a report in a timely manner. Failure on the part of either the ministers or the panel to act in a timely manner will result in a finalised EIS being presented without critical review as part of an impact track development application. Failure of this nature is significant in that the adequacy of the EIS cannot be commented upon by the public during the time for representations on the relevant impact track development application (s 156(6)). It should be noted that the EIS process may be regarded as completed under section 209 or section 209A irrespective of whether the minister has presented the EIS to the Legislative Assembly under s 227 (ss 209(2), 209A(2)).

What is the outcome of the EIS process?

Once the EIS is completed the proponent may submit an impact track development application for the development proposal under section 127. As with the EIS process, referral entities may comment on the impact track development application (ss 147A-149) and the public has the opportunity to comment on the development application during the public consultation period, which is generally 15 working days (ss 130, 157; reg 28). Impact track development applications must be decided within 30 working days after lodgement of the application if no representations are made, or within 45 working days if representations are made (s 131) (see Chapter 3 in this handbook for more information on the development application process).