Government agreements

The bilateral agreement streamlines assessment processes

The bilateral agreement is made under the Australian Government’s Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). It allows NSW to assess development applications on behalf of the Australian Government, removing the need for a separate assessment and reducing duplicative processes.

 

The Australian Government remains the decision-maker for whether a project is approved under the EPBC Act, using the assessment report prepared by the NSW Department of Planning, Industry and Environment.

 

The bilateral agreement ensures an efficient, timely and effective process for environmental assessment of actions by:

• accrediting certain NSW processes for assessment under the Environmental Planning and Assessment Act 1979, including endorsing the NSW Biodiversity Offsets Scheme.
• exempting certain actions from assessment under Part 8 of the EPBC Act, where those actions have been assessed through an accredited process, and in the manner set out in Schedule 1 of the Agreement.
• committing the Australian Government to make its best endeavours to ensure that conditions under the EPBC Act are strictly limited to matters not addressed, or likely to not be addressed, by NSW conditions.

 

Amendments to the bilateral agreement

The NSW and Australian governments entered into a bilateral agreement relating to environmental assessment in 2015. In March 2020, the NSW and Australian governments signed Amending Agreement No 1. (the amending agreement). This makes small amendments to the 2015 assessment bilateral agreement to respond to changes to NSW biodiversity and planning laws and improve the operation of the agreement.

 

The amended bilateral agreement provides a streamlined development assessment process covering both State and national environmental laws, while maintaining strong standards for environmental protection. This is upheld in the updated provisions of the amending agreement and enhanced by small changes to improve and simplify the operation of the bilateral agreement, these include the following:

• extending the streamlining benefits of the bilateral agreement to major development by a Commonwealth agency that needs assessment under NSW planning laws or development that occurs across both NSW and Commonwealth lands.
• simplifying the bilateral agreement by excluding projects under Part 5 of the EP&A Act. This type of development is able to be assessed under both NSW and Commonwealth laws outside of the bilateral agreement. (This does not affect State Significant Infrastructure which continues under the amended bilateral agreement).

 

The amending agreement also includes enhanced provisions allowing proponents to use the NSW Biodiversity Offset Scheme to assess and meet all their biodiversity offset requirements, including using the Biodiversity Conservation Fund.

You can find more information on the Bilateral Assessment Process.

 

Transitional arrangements

The amended bilateral agreement has commenced. All new eligible projects will be assessed under the updated provisions of the amended bilateral agreement.

 

Projects that have been determined to be controlled actions prior to the amending agreement being signed will continue under their existing arrangements. This includes:

• projects already being assessed under the 2015 bilateral agreement using the transitional arrangements provided under NSW legislation (Biodiversity Conservation (Savings and Transitional) Regulation 2017).
• projects being assessed under an accredited assessment in accordance with section 87 of the EPBC Act.

 

Proponents that have already lodged a development application, or that are soon to lodge an application can seek advice from the Department on arrangements relating to these projects.

 

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.

 

Transitional Review

The bilateral agreement requires a review of the objects of the agreement to identify if they were being achieved after 12 months of operation. As limited projects had been assessed under the agreement in the first 12 months of operation, a Transitional Review was undertaken by the Australian Government to review 24 months of operation.

 

The Review was published in August 2017 by the Australian Government and details the success of the agreement, along with areas where the agreement’s operation could be improved.

 

You can view the Transitional Review.

 

More information

For further information on Government Agreements, you can:

• Visit the Australian Government Department of Agriculture, Water and the Environment website, you will find key documents such as:
  - NSW Assessment Bilateral Agreement (amended 2020)
  - Assessment Bilateral Agreement - (unamended) February 2015
• Read more about the one stop shop for Commonwealth environmental approvals.
• Contact Service NSW 13 77 88.