Particular Manner Decisions - Section 77A
Environmental assessment and approval process
Department of the Environment and Heritage, September 2003
In September 2003, the EPBC Act was amended to strengthen the ability to enforce the Environment Minister's decision that an action does not require approval because that action would be taken in a 'particular manner'. While the purpose and basis of 'particular manner' decisions has not changed, new penalties apply to breaches of particular manner decisions taken after the amendments came into affect on 23 September 2003. A decision to which these penalty provisions applies will be one taken under the new Section 77A of the EPBC Act, rather than Section 77.
Background
In deciding whether an action requires assessment and approval under the EPBC Act the Australian Government Environment Minister can make one of the following decisions:
- that the action requires assessment and approval as it is likely to have a significant impact on a matter protected by the EPBC Act;
- that the action does not require assessment and approval as it is not likely to have a significant impact on a matter protected by the EPBC Act; or
- that the action does not require assessment and approval as the action will be undertaken in a manner that will ensure that any potential significant impacts are avoided or reduced by mitigation measures to the extent that they will not be significant - that is, the action will be taken in a 'particular manner'. The 'particular manner' is spelled out in the Environment Minister's decision.
Why have a 'particular manner' decision?
The EPBC Act is about protecting aspects of the environment of national importance - matters of national environmental significance. The operation of the EPBC Act has resulted in a number of proponents changing their behavior by adopting practices and measures to avoid significant impacts on matters of national environmental significance. The particular manner provisions of the EPBC Act allow the decision-maker, under strict circumstances, to take into account such practices, design features and mitigation measures which avoid or reduce significant impacts on matters protected by the Act. As a result a not controlled action particular manner decision can be taken, and assessment and approval under the EPBC Act is not necessary to ensure that the objects of the Act are met.
Requirements to be addressed in a 'particular manner' decision?
The particular manner:
- must be set out in detail in the initial referral or in any additional information provided by the person in order to make clear the manner in which the action is proposed to be taken.
- additional information may be provided by the person under the 'stop the clock' provisions provided for through section 76 of the EPBC Act, or as a result of discussions between the Department and the person in the context of the action being considered under section 75 of the Act;
- must clearly and demonstrably be part of the action, and is to be clearly taken in a way which will ensure that potential impacts are avoided or mitigated so that the action will not have a significant impact on the matter(s) protected;
- must be clear, unambiguous, and provide certainty in relation to reducing or avoiding impacts on the matter(s) protected;
- must be realistic and practical in terms of reporting, auditing and enforcement;
- will not be used if there is doubt about the person's capacity to comply with the manner or where the risk to the protected matter is high.
In addition, in administering the particular manner provisions, the Department will take into account such matters as:
- the action should be taken in accordance with any recovery plans, threat abatement plans, management plans, codes of practice, land use plans, strategies, policies and other instruments that have been made, endorsed or are acceptable to the Environment Minister;
- in the absence of acceptable existing instruments, the manner in which the action is to be taken should contribute, where appropriate, to the development and implementation of such instruments under the EPBC Act.
General guidelines on the application of particular manner in decision-making are available from the EPBC Act web pages at: www.environment.gov.au/epbc/
Section 77A(2) of the EPBC Act provides for civil penalties of up to $110,000 for an individual and $1.1 million for a body corporate for a breach a particular manner decision. That is, if the action is undertaken in a way that is inconsistent with the particular manner specified by the Environment Minister. This is similar to a breach of a condition of an EPBC Act approval.
In addition if the action is not taken in the particular manner reconsideration of the 'controlled action' decision could be undertaken in accordance with section 78 of the EPBC Act.
Further information: For more information about the EPBC Act, visit The Department of the Environment, Water, Heritage and the Arts web site at www.environment.gov.au/epbc or call the Community Information Unit on 1800 803 772.