Photo of road passing through native vegetation

Western Australia’s environmental laws are set to change with the passage of the Environmental Protection Amendment Bill 2020 (WA) through parliament in 2020.

The most substantive amendments to the Environmental Protection Act 1986 (WA) (EP Act) are not yet in operation. In anticipation of those pending amendments, this article summarises the key change affecting licence holders of prescribed premises and landowners who wish to carry out native vegetation clearing.

Key changes

  • New single licence approval process for ‘controlled work’ or ‘prescribed activity’ to replace existing licence and works approval process (new Part V Division 3);
  • New opt-in referral system for clearing where clearing permits may not be required (amended Part V Division 2);
  • New type of environmental covenant – the ‘environmental protection covenant’ that may be entered into as a condition of clearing permits or environmental impact assessment approval (new Part VB); and
  • Declaration of environmentally sensitive areas to be made under regulations (new section 51B) replacing existing declaration by notice.

Changes to licences and works approvals

The most significant changes to the EP Act are in relation to licence and works approval. Environmental regulation will no longer focus on ‘prescribed premises’ but rather ‘prescribed activities’, which targets activities that cause pollution and the person who has the responsibility for such activities. ‘Prescribed activities’ will include the kinds of activities that currently cause pollution or environmental harm under the EP Act.

The new Part V Division 3 enables the Department of Water and Environment Regulation (DWER) to grant a licence for carrying out ‘controlled work’ or a ‘prescribed activity’ (or both). There will now be a single ‘licence approval’ process and there will no longer be a separate works approval and licence application process. In addition, the requirement that a licence is only granted to the occupier of a premise will no longer apply. Instead, any person who carries out a prescribed activity or controlled work must be authorised by a licence otherwise they commit an offence.

The existing defences have not changed in substance. For example, it is a defence to a prosecution if it can be shown that the activity in question was carried out in accordance with a licence. However, a new provision clarifies that a licence does not necessarily authorise an emission unless the emission is specified in the licence as an authorised emission. This means that licence holders need to be aware of what emissions are specifically included in their licence and consider whether additional emissions should be included. Otherwise, licence holders may not be able to rely on the defence.

A new offence provision also allows a person other than the licence holder to be liable for contravening licence conditions when carrying out work or an activity that is authorised by a licence. A new defence of ‘lack of knowledge’ may apply if a person other than the licence holder, such as an employee or a contractor, did not know or could not reasonably be expected to have known the licence requirements.

New offence and defence provisions broaden who may be liable for the contravention of a licence or licence conditions. It is no longer only the licence holder or occupier of the premises that may be liable for an offence, but any person who carries out work. This could include contractors, consultants or employees associated with the licence holder’s operations. If an employee or contractor is alleged to have contravened a licence or conditions, a licence holder may rely on a defence of ‘due diligence’ if they had taken reasonable precautions and exercised due diligence to prevent the offence.

Clearing permits – new referral system

Currently, clearing of native vegetation is an offence unless the clearing is carried out in accordance with a clearing permit or for an exempt purpose. However, the amendments address situations that have arisen where clearing of native vegetation may be of a trivial nature for which an exemption does not apply but may not have a significant effect on the environment. Part V Division 2 of the EP Act will have a new referral system for proposed clearing that will allow for landowners or proponents to carry out clearing of native vegetation in particular circumstances without needing to apply for a clearing permit.

A person who proposes to carry out clearing can make a referral application to the Chief Executive Officer (CEO) [that is the Director-General] of DWER to determine whether a clearing permit is required. In determining a referral application, the CEO must have regard to the size of the area, known or likely environmental values, scientific knowledge and whether conditions are likely to be required to manage environmental impacts. There will be further non-statutory guidance developed by the DWER to assist with understanding these criteria.

This new referral system is aimed at reducing the administrative burden on proponents carrying out clearing that may not have a significant effect on the environment.

We note that this referral process is not available for land that is subject to an agreement to reserve, a conservation covenant or an environmental protection covenant.

Environmental protection covenants

The new Part VB allows the CEO of the DWER to enter into environmental protection covenants as a condition made for a Part V clearing permit or a Ministerial Statement in relation to a Part IV EIA proposal. The condition may require a person to enter into an environmental protection covenant, where obligations may be positive and negative. The written consent of every owner and occupier of the land is required before a covenant can be entered into.

Declaration of environmentally sensitive areas under regulations

An ESA typically impacts landowners in agricultural regions, and it may be difficult for prospective purchasers to identify whether the land they wish to purchase is impacted by an ESA. An ESA can now be declared under regulations, rather than by the Minister for the Environment publishing a notice. Declaring an ESA under regulations will allow for consultation requirements to be tailored when an ESA may need to change. This may improve the current system because all affected landowners will be notified and given the opportunity to comment prior to the declaration taking effect.

The amendments are also intended to simplify and improve the current system for land subject to an ESA, particularly in in regard to the clearing native vegetation. The new clearing referral system as discussed above will apply to land subject to an ESA and may allow landowners to carry out trivial clearing of native vegetation despite the ESA declaration.

 

If you would like to discuss any of these changes to the EP Act, please contact us on (08) 6460 5179 or through admin@glenmcleodlegal.com