Four things to help you get an EPBC Act approval

Getting development approval under the Commonwealth’s Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is often time consuming, difficult and expensive.

Here are four things to do to help you work through the process:

  1. Understand what the Commonwealth thinks
  2. Get the right information
  3. Communicate effectively
  4. Keep the process moving

The Commonwealth Department of the Environment’s website has an explanation of the EPBC Act assessment and approval process.

1. Understand what the Commonwealth thinks

Perhaps the best way to explain how officers in the Commonwealth Environment Department think about developers is: “healthy distrust”. This is not necessarily a bad thing if you are aware of it and manage how you interact with them. The critical thing to do is to be open (within reason) and establish a strong, professional and honest working relationship.

As a general rule, the Commonwealth is completely focused on achieving outcomes for matters of national environmental significance (MNES). Arguments relating to things such as state environmental issues or the economic benefit of your development are very much secondary in their minds. A classic mistake to make is spending lots of effort in trying to communicate the social and economic importance of your project. You are much better advised to spend your time building the case for approval in relation to what outcomes you will achieve for MNES.

The final thing to realise is that the Commonwealth is also looking to make a difference. They want to see improved outcomes for MNES as a result of assessing and approving a project. This can be pretty challenging if you have already been through a state or territory approval process where you had to make a range of modifications and concessions. They really want to feel like they have achieved long-​term conservation outcomes. As a result, biodiversity offsets are looked to as the answer in the majority of project approvals that impact on MNES. Be aware of this and prepare for it.

2. Get the right information

Not having the right information is one of the most common but significant problems. At best it leads to delays and at worst to significant unnecessary changes to your project (or even refusal).

The “right” information provides a comprehensive picture about your action and the values of the MNES that may be impacted. For threatened species and ecological communities (the most common assessment issues), you need to:

  • Make sure that the information you collect is specific to MNES. For example, you need to make sure you map ecological communities in accordance with the EPBC Act listing criteria and don’t use the state or territory criteria (which are often similar but not the same)
  • Have good regional information to provide the context for your project (e.g. amount and type of habitat within the area around your site)
  • Have good site specific information that is collected using the appropriate methods at the appropriate time of year

3. Communicate effectively

It seems obvious to say that communicating effectively is important. It’s amazing though how infrequently this is done in the eyes of the Commonwealth.

Given that the Commonwealth is focused so strongly on MNES, they really like to see referrals and assessment documentation that are also entirely focused on MNES. If you are going through a full assessment process, we can’t recommend highly enough preparing standalone reports that address all of the EPBC Act issues. This is the case even if you are also going through a state process where you have to prepare an assessment report.

The documents you produce should:

  • Use simple language
  • Clearly describe your project and what activities you will be undertaking
  • Be focused on the MNES issues
  • Be as short as possible but also comprehensive
  • Be presented with good quality mapping
  • Be accurate and consistent in relation to area calculations (e.g. in relation to the area of impact)

4. Keep the process moving

For projects that go through the full EPBC Act assessment and approval process (i.e. controlled actions), the process can take anywhere from six to eighteen months. It can be even longer if the process is handled badly or the issues are particularly complicated.

Keeping the process moving is vital. To do that there are a couple of things to realise:

  • While your project is extremely important to you, it is only one of many for the Commonwealth officer that is assessing the project
  • It is almost guaranteed that there will be staff turnover during the process and questions that you have already answered will come up again
  • If you don’t pro-​actively manage engagement with the Commonwealth it is likely that the process will drift. Polite and regular communication is the way to go

Four steps to take to help keep the process moving are:

  1. Make sure you manage how the EPBC Act approval process integrates with any state or territory approval process. If you don’t, there is a risk you will get held up waiting for something
  2. Work out who the key people are in the Commonwealth Department of the Environment in relation to your project. The nominated project officer is fine to deal with on a day-​to-​day basis, but for key decision points and negotiations you need to get their boss (or their boss’ boss) in the room
  3. Site visits are a great way of helping the Commonwealth understand the issues. Offer site visits early in the process and at other key points. Offer them again if there is staff turnover
  4. Keep a good record of project discussions with the Commonwealth. Make this a shared resource with the Commonwealth so that new staff can get up to speed when they come on to the project