Prior authorisation and continuing use exemptions - Sections 43A and 43B
Department of the Environment, Water, Heritage and the Arts, 2009
The Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) came into effect on 16 July 2000. The EPBC Act applies nationally and provides protection to matters of national environmental significance. Matters of national environmental significance include world heritage properties, national heritage places, Ramsar wetlands, nationally threatened species and ecological communities, migratory species and Commonwealth marine areas. The EPBC Act also applies to actions involving Commonwealth land and actions by Australian Government agencies.
Under the EPBC Act, any activities that may have a significant impact upon matters of national environmental significance should be referred to the Australian Government Minister for the Environment, Heritage and the Arts for assessment and approval.
However, the EPBC Act allows for some exemptions to the assessment and approval provisions. The purpose of this fact sheet is to explain these exemptions.
The prior authorisation and continuing use exemptions
Sections 43A and 43B of the EPBC Act exempt certain actions from the assessment and approval provisions of the EPBC Act. They apply to lawful continuations of land use that started before 16 July 2000 or actions that were legally authorised before 16 July 2000, the date of commencement of the EPBC Act.
These exemptions allow for the continuation of activities that were fully approved by state and local governments before the EPBC Act came into force ('prior authorisation'), or otherwise lawful, activities, which commenced before the EPBC Act came into force, and which have continued without substantial interruption ('continuing uses').
Do the prior authorisation and continuing use exemptions apply to you?
Prior authorisation
Under the prior authorisation exemption, assessment and approval under the EPBC Act is not required if:
- before 16 July 2000, the action was authorised by a specific environmental authorisation under a law of the Commonwealth, state or a self-governing territory before 16 July 2000; and
- as at 15 July 2000, no further environmental authorisation was necessary to allow the action to be taken lawfully; and
- the specific environmental authorisation remains in force at the time the action is taken (in limited circumstances a renewal may satisfy this requirement).
Environmental authorisation means an authorisation under a law of the Commonwealth, a state or a self-governing territory that is intended to protect the environment and/or promote the conservation and ecologically sustainable use of natural resources.
Specific environmental authorisation means an environmental authorisation that is issued specifically in relation to the relevant action, i.e. it identifies the particular action by reference to acts and matters uniquely associated with that action, or was issued or granted following a consideration of the particular action by reference to acts and matters uniquely associated with the action.
An example of an activity that could be exempted under the prior authorisation provision is cattle grazing in accordance with a crown land licence issued under the Victorian Land Act 1958.
Continuing use
Under the continuing use exemption, assessment and approval under the EPBC Act is not required if:
- the action commenced before 16 July 2000; and
- the use of land, sea or seabed was lawful; and
- the action has continued in the same location without enlargement, expansion or intensification.
Any enlargement, expansion, or intensification of an existing use is not a continuation of a use. If you propose to enlarge, expand or intensify your action it is not covered by this exemption and, if the enlargement, expansion or intensification is likely to have a significant impact on a matter of national environmental significance, you should refer the action for assessment and approval. Any change in the location or the nature of the use that results in a substantial increase in its impact is not a continuation of use.
Whether or not your action is covered by the continuing use exemption will depend on the particular circumstances. Examples of activities that may be exempted under the continuing use provision are:
- routine grazing activities, including cyclical activities such as periodic grazing;
- continuing cropping and crop rotation;
- slashing to maintain existing firebreaks;
- maintenance of existing dams, roads, fences etc; and
- continuing an existing weed control program.
What if a new threatened species or a national heritage place is listed?
New listings of threatened animal or plant species or ecological communities or national heritage places would not affect the application of exemptions to activities that are covered by the exemptions outlined above.
What if my action is not exempt under these provisions?
If your action is not covered by one of the exemptions outlined above and is likely to have a significant impact on a matter of national environmental significance or the environment on Commonwealth land, you need to refer your action to the Australian Government Minister for the Environment, Heritage and the Arts.
An online tool is available to help you identify what matters of national environmental significance occur in a given area.
The process for making a referral under the EPBC Act is easy and without charge. All you have to do is complete and submit the relevant form, which can be obtained from the Department of the Environment, Water, Heritage and the Arts.
For further information
Please contact the Department of the Environment, Water, Heritage and the Arts.
- EPBC Act web site
- Referral form
- Community Information Unit: freecall 1800 803 772
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