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• Guidance Note 6 - Change of person proposing to take an action; Change of proponent; Transfer of approvals: subsection 78(5) and sections 145B and 156F of the EPBC Act (PDF - 76 KB) |  Guidance Note 6 - Change of person proposing to take an action; Change of proponent; Transfer of approvals: subsection 78(5) and sections 145B and 156F of the EPBC Act (Word - 80 KB)

About the guidance note

This Guidance Note is intended for use by staff of the Department of Sustainability, Environment, Water, Population and Communities. It should not be relied upon by any other person. This Guidance Note does not represent legal or professional advice. The policies and procedures included in this Guidance Note are intended to serve as guidance only and should be applied consistently with the requirements of the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth)(EPBC Act) and the Environment Protection and Biodiversity Conservation Regulations 2000 (Cwlth)(EPBC Regulations). To the extent of any inconsistency, the EPBC Act and EPBC Regulations will prevail over this Guidance Note. If Departmental officers consider that this Guidance Note may be inconsistent with the EPBC Act or the EPBC Regulations, please contact the Legislation Policy Section. This guidance note may be subject to change at any time.

Overview

This Guidance Note concerns the processes for changing the person proposing to take an action and for transfers of approvals under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The relevant provisions of the Act are:

• subsection 78(5) allows the Minister responsible for administering the EPBC Act or their delegate (the Minister) to change the designated proponent to another person where the Minister believes that the first proponent is no longer an appropriate person to be so designated;
• section 145B allows for an approval to take an action to be transferred from the approval holder to another person, subject to the Ministers consent; and
• section 156F allows for the person proposing to take an action to be changed after the relevant action has been referred for approval, but before a decision to approve or refuse the action has been made.

It is important to note that the EPBC Act does not require the person proposing to take an action to be changed, or an approval to be transferred, in any particular circumstances. Sections 145B and 156F provide a means to avoid duplicating administrative processes (e.g. to avoid repeating an assessment process where the land that is the subject of an approval is sold, and the person who has purchased the land proposes to undertake the approved action).

The question of whether the person proposing to take an action should be changed, or an approval transferred, may also arise in situations involving a change to that person's identity, including, but not limited to, where:

• a company changes its Australian Company Number; or
• a statutory body is abolished and replaced by another body through a legislative amendment.

This Guidance Note has been prepared to outline the processes under the relevant sections of the EPBC Act, and assist officers in determining if the legal identity of the person proposing to take an action or approval holder has changed so that it has become a different 'person' for the purposes of the EPBC Act. By doing so, it can be determined whether the person proposing to take the action should be changed, or the approval transferred, for the relevant referral or approval.

As with the other guidance notes on issues relating to the operation of the EPBC Act, this guidance note refers and is directed towards 'departmental officers' involved in the preparation of material for decisions by the Minister, and the Minister's delegates within the department. However, except where there is a reference in the guidance notes to the exercise of a delegated power by a Ministerial delegate, references to departmental officers do not imply that these officers will make a decision under the EPBC Act.