09 December 2020

Is your project eligible for ‘fast-tracking’? Federal and State ‘fast-tracking’ of environmental legislation for Covid-19 economic recovery

This article was written by Mark BeaufoyAnna Vella, Ruth Dawes and Candice Parer.

Key points

  • Flexibility and fast-tracking of planning and environmental assessment legislation has been a focus of response to COVID-19 and economic recovery for the Federal and State Governments

  • The States (Victoria, New South Wales and Queensland discussed here) have used existing fast tracking mechanisms in planning and environmental legislation and some reforms to legislation and planning instruments to fast track priority projects which meet eligibility requirements. Many projects are already on the fast track in these State, but your project may also be considered if it meet these criteria (outlined below).

  • Projects with significant impacts on matters of national environmental significance still require referral under the Environment Protection Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and may still need to be assessed under state environmental impact assessment legislation (consistent with assessment bilateral agreements) and approved under the EPBC Act

  • While COVID-19 has created a significant impetus for reform of the EPBC Act devolving powers of approval as well as assessment to the States and providing for greater streamlining of the assessment process, the timing and prospects for success of those reforms are currently uncertain.

 From the early days of the COVID-19 pandemic there has been a focus on streamlining environmental assessment and approvals to provide flexibility, facilitate emergency Covid responses and ‘fast track’ building work and infrastructure for economic recovery from the coronavirus crisis.[1]

The States have responded with various emergency reforms to planning and environmental legislation to address the immediate flexibility required for responses to the pandemic and to provide greater flexibility and centralisation (to Planning Ministers) to approve use and development and calling-in development applications and appeals to fast-track decision making.[2]

The Federal Government and State Governments have identified key developments and infrastructure to be fast-tracked for assessment and approval.[3] Recent reforms and programs in Victoria and New South Wales have focused on identifying and processing priority projects for fast-tracking.

Victoria priority projects and fast-tracking

Building Victoria's Recovery Taskforce has sought to identify:

  • shovel-ready building and construction projects of Victorian State and Regional significance and,
  • planning and investment opportunities.

Applications for priority project fast-tracking in the Taskforce's pilot phase closed on Friday 5 June, 2020. The Taskforce received 295 applications for assessment of projects to be considered for fast-tracking and  has triaged 295 applications and carried out a detailed assessment of eligible projects. Projects being prioritised through the Taskforce include those with an existing application for planning approval (awaiting determination by Council or VCAT) that meets the priority project criteria and will be required to commence within 6 - 12 months of approval. Priority projects eligibility criteria[4] consider matters such as whether the project warrants Ministerial intervention and meets assessment criteria including:

  • Economic benefits including jobs, capital value, innovation
  • Net community benefit including for example social and affordable housing and environmental sustainability
  • Aligns to government policy objectives
  • Stakeholder support, views are known or can be ascertained in an expedited manner
  • Project complexity and speed of delivery e.g. benefits will be realised in the short to medium term with appropriate management of risk and opportunities
  • Feasible proposal e.g. demand is evidenced, supply factors mitigated, proof of funding and shovel ready
  • Probity can be assured – addressed in assessment process.

NSW priority projects and acceleration

The NSW government recently launched the second phase of its accelerated environmental assessment program to assist about 30 major projects. The Planning System Acceleration Program had an initial ‘rescue’ phase comprising a ‘fast tracked’ assessment program that assisted 101 more advanced ‘shovel-ready’ projects that could commit to construction within 6 months. The program has now entered into a new ‘response’ phase, referred to as the ‘priority assessment program’.

The ‘priority assessment program’ targets large complex projects that are early in the assessment process, or have been stuck within it for some time. .

Projects from the public and private sector will be considered for the program.  State Significant Infrastructure (SSI), State Significant Development (SSD) and Planning Proposals will be considered. The NSW Department of Planning, Industry and Environment (NSW DPIE) may select projects for inclusion, but proponents, councils and other stakeholders may also identify eligible projects.

Criteria for project selection include that the project will be strategically important to the State or a region and provide considerable investment, public benefit, environmental and design outcomes, together with growth and jobs over the medium term. [5] This criteria also includes a willingness for a proponent to commit to construction commencing, or DA’s in respect of a planning proposal being lodged, within 18 months.

If chosen for the program, the NSW DPIE will work with the proponent to agree on timeframes for assessment pathways and outcomes for the project. The benefit of the program to proponents is a commitment to process including clear expectations on the indicative schedule for the assessment or rezoning processes, and pathways for issue resolution with the DPIE and stakeholder agencies.[6]

The first 10 projects to be included in the program by the NSW DPIE are SSI projects and include:

  • The Sydney Metro line to Western Sydney International (Nancy-Bird Walton) Airport and the Western Sydney Aerotropolis;
  • A new transmission connection from the Snowy 2.0 project to the transmission network;
  • Two EnergyConnect projects (NSW – Western and Eastern Sections) which connect the NSW and South Australian transmission networks.[7]

Queensland priority projects and fast-tracking

The Queensland government recently announced that a number of major projects have been ‘earmarked’ for fast-tracking as part of Queensland’s Economic Recovery Plan with the intention to get ‘shovels in the ground’ and kick start the push to rebuild Queensland’s economy.[8] The Queensland Economic Recovery Plan, released on 20 August 2020, details the State’s staged financial assistance package, including dedicating $7 billion to support Queensland businesses, workers and local communities in an effort to mitigating the economic impacts of COVID-19.[9]

Among other things, the Queensland government has committed to fast-tracking $66 million in civil work approvals for eight key projects over the next 12 months, which is anticipated to attract more than $330 million in private investment over the next two years and play a critical role in the State’s economic recovery.

Further, as part of the State-wide economic recovery initiative, the Planning Legislation (Economic Recovery Measures & Other Matters) Amendment Regulation 2020 (Qld) (Regulation) commenced on 11 September 2020, and aims to assist developers, small businesses and local communities by streamlining and simplifying the statutory planning process.

Key amendments introduced by the Regulation include:

  • a new version of the Development Assessment Rules (DA Rules) which include updated design layout and publication requirements for development applications and make the temporary changes to public notification requirements introduced under the Planning (COVID-19 Emergency Response) Regulation 2020 (Qld) permanent;
  • commencement of a new version of the Minister’s Guidelines and Rules and the introduction of an amended environmental assessment and consultation processes for the Minister and local governments to streamline and support the delivery of critical infrastructure; and
  • an amendment to the Planning Regulation 2017 (Qld) to provide local governments with the opportunity to ‘opt in’ (by resolution) to one or more ‘economic support instruments’. The economic support instruments are intended to make it easier for new businesses to open, or for existing businesses to relocate and/or adapt to operational challenges as a result of COVID-19, by reducing the level of assessment for certain development. These changes will operate in circumstances where a particular type of development is reasonably anticipated and compatible with the intent of the zone in which it is located and will remain in effect until 17 September 2021.

EPBC Act reform

The key focus of these reforms at the federal level are changes to the Environment Protection Biodiversity Conservation Act 1999 (Cth) (EPBC Act). This has involved the Commonwealth notifying it’s intention to negotiate bilateral approval agreements with the States[10] and introducing other reforms to streamline environmental assessment and approvals in the Environment Protection and Biodiversity Conservation  Amendment (Streamlining Environmental Approvals) Bill 2020. The Bill was introduced into Parliament on 27 August 2020.[11]

When introducing the Bill into Parliament, the Federal Minister for the Environment stated in her second reading speech that: 

“The interaction between Commonwealth and state and territory environmental laws leads to duplication in approval processes. It adds unnecessary regulatory burden which delays job-creating projects and impedes economic activity, and creates uncertainty around environmental protections.”

These reforms will unlock job-creating projects that will strengthen the economy and aid our COVID-19 economic recovery, without compromising Australia's unique environment.

The Bill proposes to make the following amendments to the EPBC Act:

  • referral and approval of an action under the EPBC Act is not required if the action is in a class of actions declared by an approvals bilateral not to need approval. This applies to actions that have been, are being or are to be assessed under an approval bilateral agreement;
  • allow the Minister to "call in" assessments by declaring the action as excluded from the approvals bilateral;
  • allow completed, or partially completed, State or Territory assessment processes to be used by the Commonwealth Minister for an assessment where a bilateral agreement is suspended, cancelled or otherwise ceases to apply to an action;
  • remove the restriction on the ability for an approvals bilateral to apply to the "water trigger", however such an approval bilateral agreement will need to include an undertaking by the State or Territory to obtain and take account of advice of the Independent Expert Scientific Committee;
  • provide for additional flexibility for approvals bilaterals, including amendments to:
  • expand the range of processes that can be accredited beyond a law of a State or Territory, and extend to instruments made or processes set out wholly or partly under a law of a State or Territory;
  • allow States and Territories to make minor amendments to a bilateral agreement if the Minister is satisfied the amendment will not have a significant effect on the operation of the agreement;
  • expand the range of decision makers beyond the State or Territory, for example, to include local government.

The Bill passed the House of Representatives and was introduced into the Senate on 6 Oct 2020. On 12 Nov 2020, the Senate Selection of Bills Committee referred the Bill to the Environment and Communications Legislation Committee but was unable to reach agreement on a reporting date in the report.[12] The Committee listed the reporting date as 27 November 2020, with submissions due to the Committee by 18 November 2020.[13]

One of the key concerns raised by Labor, the Green and independent MP, Zali Steggall,[14] is that the Bill does not currently reference national standards recommended by the Interim Report on the review of the EPBC Act by Professor Graeme Samuels AC released on 20 July 2020.[15] The Review’s Final Report was submitted to the Minister on 30 October 2020. The EPBC Act requires the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it. The public release of the report is a matter for Government. To date, the final report has not yet been released to the Senate or to the public.

The Interim Report made a number of key recommendations, including, among other things:

  • development of National Environmental Standards (NES),
  • devolution of decision making so that the States can also issue approvals under the EPBC Act, and
  • the creation of an independent compliance and enforcement regulator

Despite the omission of NES from the Bill, the Government has stated that NES would be introduced into law sometime after the Bill is passed, but has rejected the recommendation for a national regulator. The Government intends that the NES will form the basis of the bilateral approval agreements with the State and Territory governments.

Several previous federal governments have sought to streamline the Commonwealth environmental approval process. In 2012, following the first review of the EPBC Act, the Gillard Government also sought to establish a one-stop-shop and had state and territory governments power to grant environmental approval. Gillard abandoned this proposal and described the different arrangements being sought by each state as the “regulatory equivalent of a Dalmatian dog”. In 2014 the Abbott Government sought to revive Gillard’s ‘one-stop shop’ proposal, but it was blocked by the Senate.

The current Bill also looks to be blocked by the Senate. On 12 November 2020, the Senate referred the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (the bill) to the Environment and Communications Legislation Committee (the committee) for inquiry and report. On 27 November 2020 the committee released a report,[16] which recommended that the Senate pass the Bill. However, three dissenting reports were prepared by Labor, the Greens and cross bench senators Stirling Griff, Jacqui Lambie, Rex Patrick. These reports all recommended that the bill not be passed. Key amongst their concerns were the failure of the bill to include NES or an Independent Regulator, as well as the failure of the Government to provide the bilateral agreement template and the draft accreditation guidelines or the Review’s Final Report.

The focus on economic recovery from COVID-19 may provide greater pressure and incentive to make these reforms work this time, but the timing of the EPBC Review Final Report, the Parliamentary Committee reporting and the few remaining sitting days for Federal Parliament in 2020, make this look like a challenging timeline. 

 

[1]     David Crowe, ‘Environment laws in Morrison's sights in bid to fast-track rail, road and mines’ SMH, 15 June 2020. https://www.smh.com.au/politics/federal/scott-morrison-announces-fast-tracking-of-infrastructure-projects-for-coronavirus-recovery-20200615-p552mm.html

[2]     KWM Insights, ‘Planning and development during Covid-19 – States respond with emergency planning legislation and changes to planning controls’, 15 April 2020 https://www.kwm.com/en/au/knowledge/insights/planning-and-development-during-covid-19-emergency-legislation-20200408; KWM Insights, ‘Victoria’s Covid-19 emergency measures legislation – planning and environmental implications’, 29 April 2020 https://www.kwm.com/en/au/knowledge/insights/victorias-covid-19-emergency-measures-legislation-20200428 ; KWM Insights ‘New Covid-19 reforms to the development application process in WA’, 26 June 2020  https://www.kwm.com/en/au/knowledge/insights/new-covid-19-reforms-to-the-development-application-process-in-wa-20200626 ; KWM Insights ‘Covid 19 economic recovery in Melbourne – planning scheme amendment introduced to assist the Victorian hospitality industry’ 27 October 2020 https://www.kwm.com/en/au/knowledge/insights/covid-19-economic-recovery-planning-scheme-amendment-introduced-20201027

[3]     For example, the Federal Government through Infrastructure Australia has the infrastructure priority list https://www.infrastructureaustralia.gov.au/infrastructure-priority-list  ; see also Eryk Bagshaw and Fergus Hunter ‘Infrastructure to get $1.5 billion boost and 'priority list'’ SMH, 14 June 2020 https://www.smh.com.au/politics/federal/infrastructure-to-get-1-5-billion-boost-and-priority-list-20200614-p552hi.html ; and Building Victoria’s Recovery Taskforce which has identified priority projects and provides for fast-tracking of those projects largely through use of the Planning Minister’s call-in powers in relation to planning permit applications and VCAT applications for review https://www.planning.vic.gov.au/policy-and-strategy/building-victorias-recovery-taskforce ; NSW has a similar approach to fast-tracking priority projects including the ‘acceleration program’ and recent ‘priority assessment program’ - see https://www.planning.nsw.gov.au/Policy-and-Legislation/Planning-reforms/Planning-System-Acceleration-Program and https://www.planning.nsw.gov.au/Policy-and-Legislation/Planning-reforms/Priority-Assessment-Program

[4]     See Victorian criteria https://www.planning.vic.gov.au/__data/assets/pdf_file/0035/463787/Priority-Projects-Eligiblity-Criteria.pdf

[5]     See NSW Government Priority Assessment Project – Overview & participation Criteria https://www.planning.nsw.gov.au/-/media/Files/DPE/Other/Priority-Assessment-Program-Overview-and-Participation-Criteria-2020-11.pdf?la=en

[6]     See note 5 above

[7]     See NSW DPIE, ‘New program to support economic rebound’, 13 November 2020, https://www.dpie.nsw.gov.au/news-and-events/new-program-to-support-economic-rebound

[8]     See https://statements.qld.gov.au/statements/90559

[9]    See https://www.covid19.qld.gov.au/government-actions/our-economic-recovery-strategy

[10]    See https://www.environment.gov.au/epbc/single-touch-environmental-approvals

[11]    A summary of the key features of the Bill is included in KWM Insights ‘Single-touch environmental approvals proposed under first tranche of EPBC Act reforms’, 1 September 2020 https://www.kwm.com/en/au/knowledge/insights/single-touch-environmental-approval-proposed-under-first-tranche-of-epbc-act-reforms-20200901#:~:text=The%20Bill%20aims%20to%20implement,Agreements)%20of%20the%20EPBC%20Act.&text=It%20does%20this%20by%20ensuring,to%20the%20states%20and%20territories.

[12]    Selection of Bills Committee, Report No.10 of 2020, 12 November 2020.

[13]    See https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/StreamliningEnviroApp

[14]    Lisa Cox ‘Australian government gags debate to ram environmental law changes through lower house’ The Guardian, 3 September 2020. https://www.theguardian.com/australia-news/2020/sep/03/australian-government-gags-debate-to-ram-environmental-law-changes-through-lower-house

[15]    See KWM Insights ‘The EPBC Act Review Interim Report – Fundamental Reform Recommended’, 20 July 202 https://kwm.com/en/au/knowledge/insights/the-epbc-act-review-interim-report-fundamental-reform-recommended-20200720 ; The Australian National Audit Office also recently released an audit report on the Federal Department of Agriculture, Water and the Environment (DAWE) administration of the EPBC Act. The report found that DAWE’s administration of referrals, assessments and approvals of controlled actions under the EPBC Act is not effective. The report also found that DAWE failed to make decisions within statutory timeframes, and the majority of decisions contained errors and were non-compliant with procedural guidance. See Auditor-General Report No.47 of 2019-20 ‘Referrals, Assessments and Approvals of Controlled Actions under the Environment Protection and Biodiversity Conservation Act 1999’, 25 June 2020 https://www.anao.gov.au/work/performance-audit/referrals-assessments-and-approvals-controlled-actions-under-the-epbc-act

[16] https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/StreamliningEnviroApp/Report

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