Certain developments in NSW require approval under both the Environmental Planning and Assessment Act 1979 (EP&A Act) and the Australian Government’s Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Further information about what projects need approval under the EPBC Act can be found on the Australian Government Department of Agriculture, Water and Environment website.
The NSW and Australian Governments entered into a bilateral agreement under the EPBC Act that establishes a one-stop shop for environmental assessment in NSW. The bilateral agreement accredits certain NSW assessment processes which allows the Australian Government Minister for the Environment to rely on NSW environmental impact assessment processes to assess actions under the EPBC Act.
Under the bilateral agreement, the NSW Government will use its best endeavours to inform proponents that an action may need to be referred to the Australian Government. The Australian Government, in consultation with the NSW Government, will then make a determination about whether the action is a ‘controlled action’ under the EPBC Act that requires approval. The NSW Government will confirm whether the action can be assessed under the bilateral agreement.
The NSW Government will then undertake an assessment of the development proposal and in doing so will ensure that there is sufficient information in its Assessment Report on each relevant matter of national environmental significance (MNES) so that the Australian Government can consider those impacts and make a decision whether to approve the action.
When NSW provides the Australian Government with its Assessment Report, it also makes a recommendation to the Australian Government Minister about whether the action should be approved and, if so, what conditions (if any) should be attached to manage the impacts on MNES.
The NSW and Australian governments agreed that the bilateral agreement needed to be amended following legislative changes in NSW. These changes include the commencement of the Biodiversity Conservation Act 2016 and the Environmental Planning and Assessment Amendment Act 2017.
The amended bilateral agreement maintains the original intent of the bilateral agreement (2015) with as minimal changes to the existing content as possible.
In addition to amendments to incorporate legislative changes, the amended bilateral agreement includes small changes to improve and simplify its operation. The key differences are described below.
Projects under Part 5 of the EP&A Act are no longer included
Activities carried out under Part 5 of the EP&A Act will no longer be included in Schedule 1 of the amending agreement. These Part 5 activities are primarily undertaken by or on behalf of public authorities. They are subject to environmental assessment but do not require development consent from the Department. For this reason, the bilateral agreement provides little benefit in minimising duplicative assessment processes for this type of development.
This does not affect State Significant Infrastructure which will continue to be assessed under the amended bilateral agreement.
Actions in Commonwealth areas or by Commonwealth agencies may be eligible
The amended bilateral agreement includes assessment of actions on Commonwealth lands or those being undertaken by Commonwealth agencies. This will only apply to actions where both NSW and Australian governments agree that the project is suitable for assessment under the Bilateral Agreement.
This amendment aims to address issues where major development occurs across differing land tenures or where a Commonwealth action requires NSW assessment.
The bilateral agreement applies to certain major projects under the NSW Environmental Planning and Assessment Act 1979 (EP&A Act). This includes State Significant Infrastructure (SSI) and State Significant Development (SSD) projects and modifications that are determined to require assessment and approval under the EPBC Act.
The amended bilateral agreement does not include applications made under Part 5 of the EP&A Act when an EIS is not required or applications where local government is the consent authority.
Projects that occur on Commonwealth land (for example, a major road or rail project that crosses a segment of Commonwealth land) or that are being undertaken by Commonwealth agencies may be eligible to be assessed under the amended bilateral agreement. This will only apply to actions where both NSW and Australian governments agree that the project is suitable for assessment under the bilateral agreement.
The Scheme includes the Biodiversity Assessment Method (BAM), the biodiversity credit system and the offset rules set out in the Biodiversity Conservation Regulation 2017. The Scheme has specific settings to ensure offsetting is aligned with Australian Government requirements and like-for-like offsets are achieved for Commonwealth-listed threatened species and communities.
Projects that have been approved under the EPBC Act after 24 March 2020 may be able to meet their offset obligations in accordance with the NSW offset rules.
Specific queries about transitional arrangements relating to biodiversity offsets can be discussed with the Department's Biodiversity Offsets Scheme support team and the Department of Agriculture, Water and Environment.
The bilateral agreement allows the state to conduct environmental assessments on behalf of the Australian Government, removing duplication including the need for a separate assessment.
The key benefits for proponents result in:
For further information, you can:
Page last updated: 06/04/2020