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STATUTORY OBLIGATIONS FOR ENVIRONMENTALIMPACT ASSESSMENT IN QUEENSLAND

RESEARCH BULLETIN NO 1/97

JUDITH PINI

QUEENSLAND PARLIAMENTARY LIBRARYPublications and Resource Section

BRISBANEFebruary 1997

ISSN 1325-1341ISBN 0 7242 7353 0

© Queensland Parliamentary Library, 1997

Copyright protects this publication. Except for purposes permitted by the CopyrightAct 1968, reproduction by whatever means is prohibited, other than by Members ofthe Queensland Parliament in the course of their official duties, without the priorwritten permission of the Parliamentary Librarian, Queensland Parliamentary Library.

Inquiries should be addressed to: Director, Publications & Resources, QueenslandParliamentary Library, Parliament House, George Street, Brisbane.Director: Ms Mary Seefried. (Tel: 3406 7116)

ABSTRACT

Environmental impact assessment is a process for assessing the potential impact onthe environment of a proposed development, and thereby assisting with theapproval and design processes. Environmental impact assessment in Queenslandis regulated by State and Commonwealth legislation and various agreements, inparticular the Intergovernmental Agreement on the Environment (IGAE). ThisResearch Bulletin describes the relevant legislation and agreements, including theprocesses stipulated by the major Queensland and Commonwealth Acts, and/orprocedures published under those Acts. In most cases, the proponent of adevelopment can be requested to prepare an Environmental Impact Statement, theterms of reference for which are determined by the approval authority afterconsultation with other relevant bodies. Criticisms of the current situation andproposals for reform are summarised. Some aspects of the Queensland legislationare currently under review in order to better meet the requirements of the IGAE.

The Author

Judith Pini studied at the University of Queensland and holds a Bachelor of Arts(with majors in English literature and Japanese) and a Bachelor of Laws.

Judith has worked as a solicitor in Brisbane and Melbourne specialising in criminallaw. She is admitted to the Supreme Courts of Queensland, Victoria, Tasmania andWestern Australia and has had experience in all of these jurisdictions. Apart fromher work at the Queensland Parliamentary Library, she has also worked as a legalresearcher and investigator in London.

Judith has travelled widely throughout Europe and the Middle East and has workedteaching English as a volunteer in Hungary and Bulgaria. She currently lives andworks in Sydney.

TABLE OF CONTENTS

1. INTRODUCTION ...................................................................................... 1

2. BACKGROUND ........................................................................................ 3

2.1 HISTORY .................................................................................................... 3

2.2 DEFINITION OF “ENVIRONMENT” ............................................................... 7

3. THE INTERGOVERNMENTAL AGREEMENT ON THEENVIRONMENT 1992.............................................................................. 10

3.1 RESPONSIBILITIES OF THE PARTIES ............................................................ 10

3.2 ACCREDITATION UNDER THE IGAE........................................................... 12

3.3 NATIONAL AGREEMENT ON ENVIRONMENTAL IMPACT ASSESSMENT

(ANZECC).............................................................................................. 13

4. COMMONWEALTH LEGISLATION................................................... 13

4.1 ENVIRONMENT PROTECTION (IMPACT OF PROPOSALS) ACT 1974 .................. 13

5. QUEENSLAND LEGISLATION ............................................................ 17

6. PROCEDURAL ENVIRONMENTAL IMPACT ASSESSMENT -QUEENSLAND LEGISLATION. ........................................................... 18

6.1 LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT 1990 -

SECTIONS 8.2(2), 8.2(12), 8.2(13) AND 5.10. ............................................ 19

6.2 STATE DEVELOPMENT AND PUBLIC WORKS ORGANIZATION ACT 1971 -

THE “GREEN BOOK”................................................................................ 27

6.3 ENVIRONMENTAL PROTECTION ACT 1994.................................................... 34

6.4 MINERAL RESOURCES ACT 1989................................................................. 36

6.5 PROCEDURAL ENVIRONMENTAL IMPACT ASSESSMENT REQUIRED UNDER

OTHER ACTS ............................................................................................ 40

7. NON-PROCEDURAL ENVIRONMENTAL IMPACT ASSESSMENT -QUEENSLAND LEGISLATION ............................................................ 42

7.1 LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT 1990 ................. 42

7.2 ENVIRONMENTAL PROTECTION ACT 1994.................................................... 43

7.3 NON-PROCEDURAL ENVIRONMENTAL IMPACT ASSESSMENT-OTHER ACTS 44

8. COMMENTARY ON ENVIRONMENTAL IMPACT ASSESSMENTIN QUEENSLAND ................................................................................... 45

8.1 ACHIEVEMENTS OF ENVIRONMENTAL IMPACT ASSESSMENT ...................... 46

8.2 PROBLEMS OR LIMITATIONS OF ENVIRONMENTAL IMPACT ASSESSMENT.... 47

BIBLIOGRAPHY ............................................................................................. 59

APPENDIX A .................................................................................................... 63

APPENDIX B .................................................................................................... 66

Statutory Obligations for Environmental Impact Assessment in Queensland Page 1

1. INTRODUCTION

Most, if not all, human activity has an impact on the environment. In particular,physical development activities which are, on the one hand, desirable for theircontribution to regional and state economic development, may on the other handcause major and irreversible changes to significant features of the immediate andsurrounding areas.

Environmental assessment or environmental impact assessment (EIA) is a tooldesigned to assist policy makers in balancing the desire for economic developmentwith the desire to protect the environment. It is a process by which the impact ofhuman activities on the environment can be considered when decisions are made inrelation to these activities.

These activities are usually development activities and their impact on theenvironment is usually taken into account when decisions (such as planningapprovals or the issuing of licences) are made by administrative authorities.Environmental impact assessment usually includes the evaluation of anenvironmental impact statement (EIS), which is based on the conduct of anenvironmental impact study. The terms EIA and EIS are not synonymous: EIA is abroad process which often includes, but is not limited to, the production of an EIS.

In the report following the Commission of Inquiry into the Conservation,Management and Use of Fraser Island and the Great Sandy Region, (the FitzgeraldReport) environmental impact assessment was defined as follows

The critical appraisal of the likely effects of a proposed project, activity, or policyon the environment. To assist the consent or permit authority, assessment iscarried out independently of the proponent who may have submitted anenvironmental impact statement. The consent authority may be a local authority,a State or Federal government, or an agency of the above.1

Environmental impact assessment in Queensland is created under statute and thereare statutory obligations operative in Queensland under both federal and statelegislation. (Queensland does have some obligations in relation to environmental

1 G E Fitzgerald, Chairman, Report of the Commission of Inquiry into the Conservation,Management and Use of Fraser Island and the Great Sandy Region, May 1991, p 130.

Statutory Obligations for Environmental Impact Assessment in Queensland

impact assessment under international conventions,2 however these will not bediscussed in this Bulletin).

There is some overlap in responsibilities between the federal and state legislation(see section 4 below), and a co-operative approach to reduce disputes betweenfederal and state governments on environmental issues was endorsed by all partiesto a series of special Premiers Conferences in 1990 and 1991 (following the PrimeMinister’s statement on the environment in July 1990). This ultimately resulted inthe formulation of the Intergovernmental Agreement on the Environment 1992.

This paper will briefly consider and analyse environmental impact assessmentobligations and intentions for Queensland under the Intergovernmental Agreementon the Environment and the Environment Protection (Impact of Proposals) Act1974 (Cth), as well as those obligations under the most significant Queenslandlegislation. The major Queensland statutes are the Local Government (Planningand Environment) Act 1990, the State Development and Public WorksOrganization Act 1971, the Environmental Protection Act 1994 and the MineralResources Act 1989.

However at the outset it should be noted that it has been repeatedly stated that theenvironmental impact assessment process in Queensland is “peculiarly fragmentedin approach” being “governed by several different sets of statutory procedureswhich are neither consistent among themselves nor in conformity with theprinciples in the Intergovernmental Agreement on the Environment of 1992.”3

The process of EIA in Queensland also appears to be in a state of flux. With theenactment of the Environmental Protection Act 1994, environmental impactassessment is now, arguably, moving beyond its previously accepted role in theplanning and development arena. Section 36 of that Act imposes a “generalenvironmental duty” on all persons to conduct an environmental impact assessmentof “any activity that causes, or is likely to cause, environmental harm”.

2 Article 16 of the Noumea Convention for the Protection of the Natural Resources andEnvironment of the South Pacific Region 1986, & Article 14 of the United NationsConvention on Biological Diversity 1992. See D Fisher, ‘Environmental Impact AssessmentLaw In Queensland: A Challenge for the Future’, Sudden Impact: Future Assessment, Aseminar on the present and future of impact assessment in Queensland, 20 August 1996,Environmental Defenders Office (Qld) Inc, Brisbane, p 4.

3 Fisher, p 2.


2. BACKGROUND

2.1 HISTORY

Prior to the introduction of the concept of environmental impact assessment theonly environmental planning tools available in Australia were “the ability to reserveareas for nature conservation, fledgling pollution controls, and some basic abilityto separate amenity-incompatible land uses through zoning controls in localplans.”4 The concept of environmental impact assessment first originated in theUnited States of America in 1969 and arrived in Australia fairly soon after that timewhen, according to Brown and McDonald it was

… introduced into public administration as an idea with no precedent nor a clearconcept of how it would work. The preparation of policy framework,administrative procedures and technical guidance came as an afterthought …5

The first legislative appearance of environmental impact assessment in Queenslandwas within the now repealed section 32A which was inserted into the LocalGovernment Act 1936 in 1973.6 Under that section a local authority “whenconsidering an application for its approval, consent, permission or authority” forthe implementation of a proposal under that Act or any other Act was obliged to“take into consideration whether any deleterious effect on the environment wouldbe occasioned by the implementation of the proposal.” This section was repealedby the Local Government (Planning and Environment) Act 1990 which introducednew provisions for environmental impact assessment.

In 1970 the Queensland Environmental Control (later Co-ordination) Council(ECC) was established under the State Development and Public WorksOrganisation Act 1938. This Act was later repealed by the State and RegionalPlanning and Development, Public Works Organization and EnvironmentalControl Act 1971, but the ECC was maintained under the new Act. In theterminology of the time, the emphasis was on “control and improvement of the

4 A L Brown & G T McDonald, ‘From environmental impact assessment to environmentaldesign and planning’, Australian Journal of Environmental Management, 2(2), June 1995,pp 65-77, (p 71).

5 Brown & McDonald, p 67.

6 Local Government Act and Another Act Amendment Act 1973 (Qld).


environment”,7 but the ECC was described in the Fitzgerald report as the “only oneattempt … to create a single, central authority responsible in a general sense forenvironmental matters”.8 The ECC was abolished in 1978 by an amendment whichalso changed the name of the Act to the State Development and Public WorksOrganization Act 1971, and which introduced current section 299 (see section 6.2below). The Fitzgerald report noted

Although statutory limitations constrained the ECC in its responsibilities forenvironmental management, it did attempt a limited form of supervisoryjurisdiction for the application of EIA procedures by government authorities anddepartments. This was in the form of a Procedural Manual which was issued inApril 1975.10

Although the Fitzgerald Commission of Inquiry was set up to report and makerecommendations with respect to Fraser Island and the Great Sandy Region, it alsowas required to report and make recommendations with respect to the resolution ofissues or disputes concerning areas of Queensland in relation to which particularregulation or control may be needed for “environmental, cultural or other specificreasons”.11

The Report recommended that comprehensive impact assessment legislation beenacted with respect to both private and public sector proposals12 since the currentapproach had limitations which included fragmented and inconsistent decisionsregarding the need for and extent of assessment, and that these deficiencies had

7 State and Regional Planning and Development, Public Works Organization andEnvironmental Control Act 1971, s 32(b) [as originally enacted].

8 Report of the Commission of Inquiry into the Conservation, Management and Use of FraserIsland and the Great Sandy Region, Appendixes, Vol II, Appendix A18, p 575.

9 State and Regional Planning and Development, Public Works Organization andEnvironmental Control Act Amendment Act 1978.

10 Report of the Commission of Inquiry into the Conservation, Management and Use of FraserIsland and the Great Sandy Region, Appendixes, Vol II, Appendix A18, p 575.

11 Report of the Commission of Inquiry into the Conservation, Management and Use of FraserIsland and the Great Sandy Region, p 106.



“contributed to doubts about the integrity of the impact assessment process at alllevels of government and have caused significant conflict”.13

In 1994, the Environment Protection Act was passed and some of the legislativeproposals were influenced by the recommendations of the Fitzgerald Report. ThisAct is discussed further at Section 6.3.

In May 1995, after an extensive process of policy development and publicconsultation, including the release of a Discussion Paper on New Planning andDevelopment Legislation for Queensland in November 1993, the then Minister forLocal Government and Planning, Hon Terry Mackenroth MLA released to thepublic the draft Planning, Environment and Development (PEDA) Bill.

The draft Bill was to provide the statutory framework to underpin substantialreforms proposed by the Goss government in the planning and assessment system ofQueensland. In particular the Bill proposed an Integrated Development AssessmentSystem (IDAS) to be brought about by streamlining the current approval processes(including environment impact). Some 250 separate approval processes affectingland use and development were to be integrated through the Bill and others were tobe removed. The Bill proposed to consolidate the Local Government (Planning andEnvironment) Act, the Building Act and the Standard Building Law and parts of theSewerage and Water Supply Act and Regulations. It was also to replace thedevelopment assessment provisions of the Integrated Resort Development Act andMixed Use Development Act.

Further, in September 1995 a draft of a Bill entitled the State Development andPublic Works Organization Amendment Bill 1995 and the draft of a regulationentitled the State Development and Public Works Organization Regulation 1995were released for public comment. The combined effect of these would have beento replace the informal system of environmental impact assessment operating unders 29(2) of the State Development and Public Works Organization Act 1971 (The‘Green Book’ process) by a formal system. (See Section 6.2 of this Bulletin for afull discussion of the current position). The new provisions would have applied to apublic sector entity either intending to undertake works likely to have a majordevelopment impact or requested to approve an application for development likelyto have a major development impact.14 The draft regulation set out the proposed


14 The Bill did not refer to an ‘environmental impact’ but rather an ‘development impact’. Adevelopment impact was defined as one that impacted either beneficially or detrimentally onthe range of circumstances set out in the Bill that corresponds to the meaning of the termenvironment.


impact assessment procedure and factors which must be taken into account whendetermining whether a development is likely to have a major development impact.

In October 1995, the then Minister for Environment and Heritage introduced theCoastal Protection and Management Bill into the House15. The Act came intooperation in its entirety in February 1996. The Act does not contain its ownapproval regime. It is envisaged that the approvals which affect the coastalenvironment currently given under the Canals Act 1958, the Beach Protection Act1968 and the Transport Infrastructure Act 1994 will be rationalised into the IDASsystem. The approvals would then become an element in the overall planningprocess with local government being the development manager in many cases. TheDepartment of Environment would remain a concurrence agency for developmentsin control districts and works below high water mark.

This Act was to be coordinated with the provisions of the proposed PEDA Bill inthat all applications for the development of land affected by State coastalmanagement plans, regional coastal management plans and declarations of controldistricts would be subjected to the provisions of the Integrated DevelopmentAssessment System (IDAS) to be provided for in the proposed PEDA Bill. To dateno state or regional coastal management plans have been declared. Howeveradvertising for preparation of three regional coastal management plans being theWet Tropical Coast, the Cardwell-Hinchinbrook and the Wide Bay Coast has takenplace. It is hoped that in February 1997 advertising for initial preparation of theSouth East Queensland Regional Plan will occur. Work is underway on the StateCoastal Management Plan. A lengthy process of public consultation will take place.

With the change of government in February 1996, neither the PEDA Bill nor theproposed amendment to the State Development and Public Works Organization Actnor the regulation to formalise processes under section 29 of that Act have beenpresented to Parliament. However, as announced by the Minister for LocalGovernment and Planning in July 199616 and the Premier in August 199617, theCoalition government after review of the existing planning legislation is proposingto introduce an Integrated Planning Bill, with a streamlined integrated developmentassessment system, into Parliament in 1997.

15 A Green paper had earlier been released for public discussion in April 1991. A draft CoastalProtection Bill was released in 1993, however the final Coastal Protection and ManagementBill was largely redrafted.

16 Minister for Local Government and Planning, Hon D McCauley MLA, Ministerial MediaStatement, 30 July 1996.

17 Premier, Hon R Borbidge MLA, Ministerial Media Statement, 26 August 1996.


As well the Queensland Government is seeking Commonwealth accreditation of itsimpact assessment processes under the national Intergovernmental Agreement onthe Environment (IGAE) (See Section 3.0). One of the prerequisites is to updatethe impact assessment processes of the s 29 ‘Green Book’ (see section 6.2 of thisBulletin) since there is now greater expectation by the community for clearconsultation processes to be identified, and industry is seeking timelines forassessment of impact assessment reports by Government. Any revision of this orother relevant legislation would need to meet the requirements of the IGAE so thatthe Commonwealth may be satisfied that Queensland can honour its obligationsunder that Agreement.

2.2 DEFINITION OF ‘ENVIRONMENT’

Prior to a consideration of any impact on the environment must be a considerationof what actually constitutes the environment in any given case.

The first statutory definition of environment was inserted into the StateDevelopment and Public Works Organisation Act 1938 in 1970.18 This was

The conditions and influences to which living matter is sensitive and to which it iscapable of reacting

A similar definition was included in the State and Regional Planning andDevelopment, Public Works Organization and Environmental Control Act 1971,but was deleted in 1978.19 At that time a definition of environmental effects,rather than ‘environment’, was inserted:

“environmental effects” means the beneficial as well as the detrimental effects ofany development on the physical, biological, or social systems within which suchdevelopment occurs.

Between 1978 and 1990 there was no statutory definition of environment in anyQueensland legislation. In June 1990 the following definition was inserted intoSection 32A of the Local Government Act 1936:

“environment” includes land, air, water and fauna and flora and their habitatsabove and below the surface of the earth.

This section was repealed when the Local Government (Planning and Environment)Act 1990 commenced in April 1991.

18 State Development and Public Works Organisation Act Amendment Act 1970, s 3.

19 State and Regional Planning and Development, Public Works Organization andEnvironmental Control Act Amendment Act 1978.


The Environment Protection (Impact of Proposals) Act 1974 (Cth), which willapply to certain situations in Queensland (see section 4.1 below), definesenvironment very broadly as including

all aspects of the surroundings of human beings, whether affecting human beingsas individuals or in social groupings.

The difficulties in defining what constitutes the environment in particular cases washighlighted in the 1990 case of Queensland v Murphy. This case concernedwhether the local turtle population was part of the environment (for the purposes ofthe now repealed section 32A of the Local Government Act 1936 (Qld)). In thesame year the High Court overturned the decision of Connolly J. who had held that“It is not … correct to identify the living organism with its environment”. HisHonour did think it was “a legitimate consideration in the exercise of the townplanning function to have regard to whether a projected development may pollutethe air by the emission of noxious vapours; or the rivers or the sea by the emissionof poisonous fluids; or the soil and the forests by similar insults” but he went on tosay that “What has been seen as critical in this case, however, is not theenvironment … but rather the well-being of a particular species”.20

The High Court rejected this conclusion and adopted the standard meaning of theword ‘environment’ as signifying “that which surrounds and has long beenunderstood to include ‘the conditions under which any person or thing lives’”.The court held

What constitutes the relevant environment must be ascertained by reference to theperson object or group surrounded or affected. The reference point [for thiscase]… is the land which was the subject of an application for rezoning and whichwas later resumed. That land was and is surrounded by other land, including anarrow strip of land fronting the sea. During their nesting season turtles resort tothat coastal strip…

Even taking the narrowest possible meaning of the word ‘environment’ andconfining it to the immediately adjacent land, the resumed land was and isenvironed by land which turtles used and continue to use as a rookery.21

The difficulties encountered in this case have been largely overridden in situationswhere either the Environmental Protection Act 1994 or the Local Government(Planning and Environment) Act 1990 will apply. Both of these statutes adopt thesame inclusive definition of environment as follows:

20 Murphy and Cove House Aust Pty Ltd v The Crown (1990) 68 Local Government Reports ofAustralia, 286, pp 293 - 294.

21 Queensland v Murphy (1990) 95 Australian Law Reports, 493, per Mason CJ, Brennan,Deane, Gaudron, and McHugh JJ, pp 498-499.


“Environment” includes -

a) ecosystems and their constituent parts, including people and communities; and

b) all natural and physical resources; and

c) the qualities and characteristics of locations, places and areas, however large orsmall, that contribute to their biological diversity and integrity, intrinsic orattributed scientific value or interest, amenity, harmony and sense of community;and

d) the social, economic, aesthetic and cultural conditions that affect, or are affectedby, things mentioned in paragraphs (a) to (c).22

The movement of native animals between neighbouring forests has been regarded ascoming within this definition.23

Environment is not defined in the Intergovernmental Agreement on theEnvironment 1992.

Despite these specific definitions, Ramsay and Rowe (in their textbook,Environmental Law and Planning in Australia) warn that the “word ‘environment’must, even if aided by expansive definitions, find its meaning through applicationin a specific context”.24

Weir suggested that there will be difficulty in defining the “spatial breadth ofenvironmental impact”:

If a proposal in relation to one piece of land may affect part of the “environment”some distance away, will that be a relevant consideration? 25

He concludes that the terms of the statutory definition in the Local Government(Planning and Environment) Act 1990 suggest that a spatially broad view is

22 Environmental Protection Act 1994, section 8.

23 Hillcorp Pty Ltd v Logan City Council, Unreported, P & E No 195 of 1992.

24 R Ramsay & G C Rowe, Environmental Law and Policy in Australia, Butterworths, Sydney,1995, p 493.

25 M J Weir, ‘Putting the Environment into the Queensland Local Government (Planning andEnvironment) Act’, Environmental and Planning Law Journal, 11 (5), 1994, pp 409-418(p 412).


possible and speculates that

Presumably a court could, under this definition, consider the effect ofdevelopment at one site on matters as broad as biological diversity andecosystems of a much wider environment some distance from the site.26

3. THE INTERGOVERNMENTAL AGREEMENT ON THEENVIRONMENT 1992

On 1 May 1992 the Intergovernmental Agreement on the Environment 1992(IGAE) was signed by the federal government, the states and territories and theAustralian Local Government Association. The status of this agreement has beendescribed as “not intended to constitute a binding legal document … so much as astatement of intent or aspiration.”27 Its philosophy has been described as

one of co-operation among the various levels of government in Australia ratherthan of the Commonwealth imposing its will on the States and Territories. Inother words, the Agreement’s hallmark is co-operative federalism, not centralismdirected from Canberra.28

The IGAE was formulated to facilitate

• a co-operative national approach to the environment;

• a better definition of the roles of the respective governments;

• a reduction in the number of disputes between the Commonwealth and the Statesand Territories on environment issues;

• greater certainty of Government and business decision making; and

• better environment protection.29

3.1 RESPONSIBILITIES OF THE PARTIES

Section 4.1 of the IGAE sets out the separate responsibilities and interests of eachparty including a general responsibility on all parties to determine the content of thenine Schedules to the agreement which “deal with specific areas of environmental

26 Weir, p 412.

27 G M Bates, Environmental Law in Australia, Butterworths, Sydney, 1995, p 98.

28 W D Duncan, Planning and Environment Law in Queensland, The Federation Press, Brisbane,1993, p 71.

29 Intergovernmental Agreement on the Environment 1992, Recitals.


policy and management”. A copy of Schedule 3 which refers to EnvironmentalImpact Assessment is attached to this paper as Appendix A. Paragraph 4 of thatschedule refers to the negotiation of a general framework agreement between theCommonwealth and the states regarding environmental impact assessment “to avoidduplication and to ensure that proposals affecting more than one of them areassessed in accordance with agreed arrangements”.

Under the IGAE, the Commonwealth has the responsibility for:

• national environmental matters including matters of foreign policy;

• ensuring that the policies or practices of a State do not result in “significantadverse external effects” in relation to the environment of another State orterritory of the Commonwealth or Australian maritime areas; and

• “facilitating the co-operative development of national environmentstandards and guidelines as agreed” in the Schedules (IGAE Section 2.2).

The application of these principles was the subject of a recent newspaper article (seeAppendix B) which stated that the Federal Government has announced a plandesigned to remove “duplication and overlap from Federal and Stateenvironmental regimes, ensuring projects had to satisfy just a single set ofregulations”. According to the article

The plan, developed by the Minister for the Environment, Senator Robert Hill,would give the Federal Government discretion over all projects of nationalsignificance for the environment or for the economy, but would remove theCommonwealth from less important decisions.30

The article goes on to quote Senator Hill as saying that “Projects will be consideredto have national environmental significance if they involve international treatyobligations, cross State borders, would affect national parks or endangered speciesor involve ‘nuclear matters’.”

Under the IGAE, the States continue to have responsibility for environmentalmatters “which have no significant effects on matters which are the responsibilityof the Commonwealth or any other State” (Section 2.3.1). The States’ interest inthe development of Australia’s position in relation to any international agreementswhich impact on the States’ responsibilities and in the development of nationalenvironmental policies and practices is specifically preserved.

Local Governments retain responsibility for locally relevant and applicableenvironmental policies as well as an interest in the development and implementationof “regional, Statewide and national policies programs and mechanisms” which

30 L Taylor, ‘Cabinet overhauls green laws’, Australian Financial Review, 26 November 1996,p 1.


affect more than one Local Government (Section 2.4). Section 1.12 provides thatthe “States will consult with and involve Local Government in the application ofthe principles and the discharge of the responsibilities contained in theAgreement”.

3.2 ACCREDITATION UNDER THE IGAE

Where there is a Commonwealth interest in an environmental matter which involvesone or more states, the IGAE sets out a process to accommodate the interests ofstates (section 2.5.1). This process involves the negotiation, between theCommonwealth and the affected states, of “outcomes or standards” and whereagreement is reached the Commonwealth will approve or accredit that statepractice, procedure or process. States can also enter into arrangements with theCommonwealth to approve or accredit Commonwealth practices, procedures orprocesses. In the case of such accreditation by either the states or Commonwealthof the other’s practices, the accrediting government will give “full faith and credit”to the results of the practices, procedures or processes it has accredited. This termis defined as meaning that the Commonwealth and the states “acting in accordancewith the laws in force in their jurisdictions, will accept and rely on the outcomes ofthat system or the practices, procedures or processes, as the case may be, as abasis for their decision-making.” (Section 1.5).

Queensland has been pursuing accreditation of its impact assessment processes forsome time. It appears that a system that does not contain the principles of theIGAE is unlikely to receive accreditation.31 It is unlikely that existing Queenslandlegislation, in particular the State Development and Public Works Organization Act1971 and the Local Government (Planning and Environment) Act 1990, fulfilsQueensland’s obligations under the IGAE. The Government has recentlyestablished an Interdepartmental Committee to review impact assessment inQueensland with a view to gaining national accreditation and amending the StateDevelopment and Public Works Organization Act 1971 and its supporting policesand administrative procedures.32 Queensland’s endorsement of the NationalAgreement on Environmental Impact Assessment will also be an important steptowards accreditation.

31 Fisher, p 19.

32 D Hunt, ‘Independence and Accountability of Impact Assessment in Queensland’ SuddenImpact: Future Assessment, A seminar on the present and future of impact assessment inQueensland, 20 August 1996, Environmental Defenders Office (Qld) Inc, Brisbane, p 1.


3.3 NATIONAL AGREEMENT ON ENVIRONMENTAL IMPACT

ASSESSMENT (ANZECC)

Pursuant to paragraph 4 of Schedule 3 and the various responsibilities outlinedabove, The Australian and New Zealand Environment and Conservation Council(ANZECC) has formulated the National Agreement on Environmental ImpactAssessment (the Agreement) and the ANZECC Guidelines for Determining theNeed for and Level of Impact Assessment (the Guidelines). The Agreement was, by1994, signed by the Commonwealth, the Territories and all states apart from NewSouth Wales and Queensland. This was because the aspects of this NationalAgreement needed to be delivered through planning legislation and those Ministersresponsible for this legislation (who, not being Ministers responsible for theenvironment, were not members of ANZECC), needed to be consulted. Queenslandhas also recently recommended changes to the wording to clarify the intention of theAgreement. It is expected that the revised Agreement will be endorsed by early1997. It will then be sent to the Council of Australian Governments for ratification.

4. COMMONWEALTH LEGISLATION

The most important legislation in relation to environmental impact assessment is theEnvironment Protection (Impact of Proposals) Act 1974 (Cth) which, it has beensuggested, “probably [relies] on the power over Commonwealth instrumentalitiesand the public service granted by section 52 of the Constitution”.33

4.1 ENVIRONMENT PROTECTION (IMPACT OF PROPOSALS) ACT 1974

Although this Act has been described as creating a benchmark in environmentalimpact assessment in Australia,34 it has also been pointed out that the Act is

… very little more than a statement of government policy on environmentalimpact assessment; it merely reminds ministers and their departments that theenvironmental aspects of a proposal are just as important as the economic, socialand technical aspects.35

33 Bates, p 79.

34 S Munchenberg, ‘The review of the Commonwealth EIA process’, Australian EnvironmentalLaw News, No 3, Sept/Oct 1995, p 50.

35 Bates, p 146.


As D E Fisher has commented, the Act is notable for an almost total absence ofrights and duties.36

The Act has been accorded a ‘statutory interpretation’ role in that it

… establishes a legal background against which all other statutory provisionsshould be read … something in the nature of a standing provision establishing ageneral principle of interpretation for Commonwealth statutes 37

Section 5 of the Act states that the object of the Act is that

… matters affecting the environment to a significant extent are fully examined andtaken into account in and in relation to:

a) the formulation of proposals;

b) the carrying out of works and other projects;

c) the negotiation, operation and enforcement of agreements and arrangements(including agreements and arrangements with, and with authorities of, the States);

d) the making of, or the participation in the making of, decisions andrecommendations; and

e) the incurring of expenditure;

by, or on behalf of, the Australian Government and authorities of Australia, eitheralone or in association with any other government, authority, body or person

(2) The matters referred to in sub-section (1) extend to matters of those kindsarising in relation to direct financial assistance granted, or proposed to begranted, to the States.

The Act therefore applies to all projects in Queensland which are to be undertakenby a Commonwealth Government department or authority (eg the BrisbaneInternational Airport), or which require Commonwealth approval or finance. It hasbeen suggested that this would include,

… for example, construction projects directly undertaken by the Commonwealthsuch as airport extensions, defence projects and national highway reconstruction;approvals to export woodchips and foreign investment approval for tourismdevelopments; and grants to State Governments for specific projects such as theprovision of sporting facilities or road construction.38

An early example of the application of the Act to Queensland is the case ofMurphyores Inc Pty Ltd v Commonwealth in which the High Court decided that the

36 Fisher, p 7.

37 G Kelly, ‘Commonwealth legislation relating to environmental impact statements’, AustralianLaw Journal, 50(10), 1976, pp 498-512 (p 499).

38 Bates, pp 146-147.


provisions of the Act did apply to Commonwealth approval for the export ofminerals from Fraser Island.39

The Act does not, itself, create any procedure to achieve its objects. These areachieved by the application of administrative procedures which were approved bythe Governor-General pursuant to section 6 of the Act. (These procedures wererepublished in 1987).

The first stage is a determination of whether the Act will apply and the proceduresconfirm that this is dependent on the outcome of a twofold query. Firstly, is thematter “a proposed action” which is the term applied to those matters set out insection 5(1). If so, then is the proposed action one “affecting the environment to asignificant extent”?40

These decisions, and the consequent decision to invoke the Act are made by theMinister of State whose Department is responsible for the proposed action, who isreferred to as the Action Minister. Having invoked the Act, the Action Ministerthen refers the matter to the Department responsible for environmental matters(currently to the Environment Protection Agency within the Department ofEnvironment, Sport and Territories) to conduct the second stage. The EPA thendetermines whether either an environmental impact statement or a publicenvironment report is required. A public environment report would be requiredwhere it is considered that whilst the public should be informed of the proposedaction the environmental impact will only be limited and therefore a fullenvironmental impact statement is not necessary. This decision is based oninformation contained within a notice of intention lodged by the proponent whichsets out

• a summary of preliminary plans and any alternatives which have beenconsidered;

• a description of the environment likely to be affected;

• an assessment of the potential impact on the environment, beneficial as wellas adverse;

• safeguards to protect the environment;

• investigations to be made concerning the possible impact; and

• any other information required by the Minister. (clause 2.2 of theAdministrative Procedures.)

39 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1.

40 Environment Protection (Impact of Proposals) Act 1974 (Cth), section 5. (Those applicationsfor which the procedures “would affect national security or the interest of Australia, includingcommercial or other confidences or would be contrary to the public interest” are, by clause11.3.1, exempted from all or any of the requirements.)


The EPA then makes the decision to order the preparation of either a publicenvironment report or an environmental impact statement according to certainprinciples set out in clause 3. The EPA is specifically prohibited from ordering thepreparation of either report if to do so “would be contrary to the public interest”.

The third stage is a determination of the matters to be addressed by this report ie,the terms of reference. This process is often referred to as scoping. Theprocedures set out certain information which is required in either of the reports(clauses 4.1 and 4.2) and a draft of either report is to be made available for publiccomment (clause 6.2.1) subject to any request from the proponent that any part of itnot be made public. The public is involved to the extent that any person may, bynotice in writing, require the minister to inform that person in writing as to whataction if any, has been or is proposed to be taken for “ensuring consideration of theenvironmental aspects” of a particular matter of a kind referred to in any of theparagraphs of section 5.41 Once a draft report is produced, written comments maybe sought, by either the proponent or the department, from any person, body,government or local authority.

The final stage is the assessment of the final report. Having done so, the Ministercan request further information and within a certain period the Minister is to makesuggestions or recommendations about the proposal including the imposition of anyconditions. Reviews may be conducted whilst the proposed action is underway.Any such review and the Minister’s response is to be made available for publicreview.

Commissions of Inquiry are permitted to be held under the Act “for the purposes ofprocedures approved under this Act or for achieving the object of this Act”,42

however very few inquiries have been commissioned. To June 1995, they includedthe Fraser Island Environmental Inquiry, Ranger Uranium Environmental Inquiry,Ulladulla Hinterland Broadcasting Transmission Station Environmental Inquiry andthe Inquiry into the Shoalwater Bay Area.43

During 1995/96, the Environment Protection Authority received 465 proposals forenvironmental impact assessment. Of these, six were directed to produce an

41 Environment Protection (Impact of Proposals) Act 1974 (Cth), section 10.

42 Section 11.

43 B J Richardson & B W Boer, ‘Federal public inquiries and environmental assessment’,Australian Journal of Environmental Management, 2(2), June 1995, pp 90-103 (p 93).


Environmental Impact Statement and two were directed to produce a PublicEnvironment Report.44

A review of the Act was commenced in late 1993 in the light of the development ofthe Intergovernmental Agreement on the Environment and of the establishment ofthe Environment Protection Agency.

The review was completed in January 1996, and recommended amendment of theadministrative procedures to enable:

• accreditation of State and Territory processes by the Commonwealthconsistent with the ANZECC draft agreement;

• earlier triggering of Commonwealth legislation to coincide with State andTerritory processes; and

• improved public participation and accountability through public scoping ofproposals and greater access to information and decisions.

The current Federal Government is now considering these proposals.45

5. QUEENSLAND LEGISLATION

The Queensland legislation which requires environmental impact assessment andwhich will be discussed in this Bulletin is as follows:

Local Government (Planning and Environment) Act 1990

State Development and Public Works Organization Act 1971

Environmental Protection Act 1994

Mineral Resources Act 1989

Integrated Resort Development Act 1987

Land Act 1994

Canals Act 1958

Water Resources Act 1989

Electricity Act 1994

44 Australia. Department of the Environment, Sport and Territories, Annual Report 1995-96,p 51.

45 Australia. Department of the Environment, Sport and Territories, Annual Report 1995-96,pp 47-48.


In their textbook, Environmental Law and Policy in Australia, Ramsay and Roweidentified two kinds of statutory environmental impact assessment in Australia.These are:

• procedural assessment46 - where the legislation demands thatenvironmental impact assessment be conducted and also specifies aprocedure to be followed in conducting the assessment.

• non-procedural assessment47 - where the person, local authority or entity isobliged by the legislation to take environmental effects into considerationbut where no formal procedure has been prescribed.

This very broad distinction will be adopted in the Bulletin as it is useful inidentifying the different functions and objects of this confusing array of statutoryprovisions. It is important to note, however, that legislation such as the LocalGovernment (Planning and Environment) Act 1990, the Environmental ProtectionAct 1994 and the Mineral Resources Act 1989 each contain both procedural andnon-procedural provisions requiring environmental impact assessment and that thedistinction between the two categories can become blurred.

6. PROCEDURAL ENVIRONMENTAL IMPACT ASSESSMENT -QUEENSLAND LEGISLATION.

In most cases the EIA stipulated by these statutes gives the authority which isobliged to conduct the environmental impact assessment (usually called the leadagency), the power to request that an environmental impact statement beprepared. In some cases the authority will be obliged to request the preparation ofan environmental impact statement. The lead agency is then obliged to consider thisenvironmental impact statement as part of its environmental assessment of theproject or application.

The term environmental impact statement is defined in the Fitzgerald report as

A document, prepared after careful studies, describing a proposed development oractivity, and disclosing the possible, probable, or certain effects of that proposalon the environment.48

46 Ramsay & Rowe, p 485.




The function of an environmental impact statement was considered in the case ofBailey v Forestry Commission of New South Wales where Hemmings J stated

It is well settled that an environmental impact statement is designed to serve theultimate decision making process, not to replace it. It is not a decision makingend in itself; its purpose is to ensure that activities carried out by a publicauthority or with its consent and which are likely to significantly affect theenvironment are properly considered and exposed to public comment.49

6.1 LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT 1990 -SECTIONS 8.2(2), 8.2(12), 8.2(13) AND 5.10.

Sections 8.2(2), 8.2(12), 8.2(13) and 5.10 of the Local Government (Planning andEnvironment) Act 1990 provide for procedural environmental impact assessment incircumstances where a person makes an application to a local government forpermission in relation to certain kinds of development. (Sections 2.19(2) and 8.2(1)of the Act provide for non-procedural environmental impact assessment (see section7.1 below)).

The question of which of those sections will apply is determined by whether or notthe development for which the application is being made is a designateddevelopment.

A designated development is defined as either a proposal prescribed as such or aproposal specified as such in a local government’s local planning policy.50

Regulation 16 of the Local Government (Planning and Environment) Regulations1991 (Qld) prescribes such designated developments in Schedules 1 and 2.

6.1.1 Applications Relating to Designated Developments

If the application is in relation to a designated development and it is an applicationfor approval, consent, permission or authority in relation to either a “planningscheme” or “an interim development control provision” for such a designateddevelopment, then the first stage of the process involves the applicant (also calledthe proponent) requesting the Chief Executive of the department which administers

49 Bailey v Forestry Commission of New South Wales (1989) 67 Local Government Reports ofAustralia, 200, p 210.

50 For example, Planning Policy 19.18 of the Brisbane City Council contains a list of designateddevelopments and environmentally sensitive areas.


the Local Government (Planning and Environment) Act 1990 to advise if anenvironmental impact statement is necessary.51

The Act sets out a certain procedure to be followed by the Chief Executive indeciding whether an EIS is necessary. This procedure involves the following:

• Time limits - The Chief Executive must

• acknowledge the proponent’s request in writing as soon as possible afterreceiving it (section 8.2(5))

• make the decision as to the necessity of an environmental impactstatement “before the end of 20 working days” (section 8.2(5B)) afterthe date of this written acknowledgment. This period may be extended(Sections 8.2(6) and 8.2(6A)).

• Consultation - The decision must be made in consultation with “all thereferral agencies” (section 8.2(5)).

• Referral agencies are only defined in terms of designateddevelopments.

• The definition includes the “Chief Executive of the Departmentresponsible for the administration of Acts for the protection of theenvironment”, “any local government” in the area where thedevelopment is proposed and the Chief Executive of any otherDepartment or “statutory body” that the Chief Executive considers mustbe consulted.

• Circumstances where the Chief Executive may decide that an environmentalimpact statement is not necessary.52 These include:

• if a relevant study,53 that is not outdated, was prepared and, in the ChiefExecutive’s opinion there are no significant environmental issues thatwere not covered in this study; or

• the Chief Executive is satisfied that a referral agency has made a studywhich is not outdated that included environmental issues for the area; or

• in the Chief Executive’s opinion, the consequence of the approval,consent, permission or authority in relation to the designateddevelopment is minor.

51 Local Government (Planning and Environment) Act 1990, section 8.2(2).

52 Section 8.2(4).

53 A study that considered a designated development of the same type, involved the same land,included environmental issues and was prepared under the Local Government (Planning andEnvironment) Act 1990 or another Act at the direction of a referral agency.


• Notice -

• Chief Executive must give notice of this decision to the applicant and tothe local government. (Section 8.2(5A)

The decision of the Chief Executive whether or not to require an environmentalimpact statement is reviewable by the Planning and Environment Court.54 Forexample a decision not to require an environmental impact statement was upheld bythe court where the development was of a “minor and ancillary nature”.55

Members of the public, who are the ones most likely to seek such reviews, howevermay have some difficulty in establishing whether the Chief Executive has been calledon to make any decision in the first place. This is because whilst the consultationprocess is detailed there is no provision under the Local Government (Planning andEnvironment) Act 1990 which would result in members of the public becomingaware that an application has been made and that the Chief Executive has beenrequired to make a decision regarding the necessity of an environmental impactstatement.

The second stage in the process is a determination by the Chief Executive as to theterms of reference of the environmental impact statement (scoping). Once againthe Chief Executive is obliged to consult with the referral agencies and notify theapplicant accordingly. This decision would not be reviewable by the Planning andEnvironment Court.56

The importance of this stage has been described as follows

Effective scoping can ensure that a wide spectrum of concerns be taken intoaccount, including those of the public, as well as minimising the risk of costlymistakes or undesirable developments. Scoping provides an opportunity forspecifying the boundaries of analysis, the relevant range of alternatives,techniques of analysis and prospects for the mitigation of impacts.57

Criticisms of the administrative arrangements for scoping the terms of referenceunder Queensland legislation have been made and include the following deficiencies:

54 Local Government (Planning and Environment) Act 1990, section 2.24 (3)(b).

55 Dall v Johnstone Shire Council and Northern Meat Holdings Pty Ltd, 1995, QueenslandPlanning Law Reports, 189.

56 A Innes, ‘Enforcement Related Matters’, Sudden Impact: Future Assessment, A seminar onthe present and future of impact assessment in Queensland, 20 August 1996, EnvironmentalDefenders Office (Qld) Inc, Brisbane, p 2.

57 D James, ‘Environmental impact assessment: Improving processes and techniques’,Australian Journal of Environmental Management, 2(2), June 1995, pp 78-89 (p 85).


• the use of generic terms of reference and blanket responses;

• restrictions on the resources of administrative bodies so that draft terms ofreference are prepared without adequate briefing;

• lack of involvement of community sector organisations;

• resource restrictions and lack of training of referral agencies particularlynon-government referral agencies;

• lack of consistency in the way in which the different lead agencies use anddevelop draft and final terms of reference; and

• the mystery surrounding the administrative triggers which direct a leadagency to involve a particular referral agency.58

The third stage of the process under section 8.2(2) is the preparation of theenvironmental impact statement according to the terms of reference.

The environmental impact statement is defined as a statement prepared pursuant tosection 8.2 which includes -

a) a description of the proposal; and

b) the terms of reference which set out the matters and things to be assessed in theconduct of the environmental impact study; and

c) a statement of the potential environmental impacts of the proposal; and

d) such information collected and assessed in an environmental impact study whichsubstantiates the findings referred to in paragraph (c)59.

An environmental impact statement must adequately address the terms of reference.It is of interest to note that the Chief Justice of the Land and Environment Court ofNew South Wales set out in 1992 the “following propositions relating to thecontent of an environmental impact statement”:

1) An environmental impact statement must be sufficiently specific to direct areasonably intelligent and informed mind to the possible environmentalconsequences of the proposed development.

2) The purpose of an environmental impact statement is to alert the decision makerand the public to the inherent problems of the proposed development, toencourage public participation, and to ensure that the decision maker takes a hardlook at what is proposed.

58 A Dale, ‘The Section 9 Syndrome: Terms of Reference and Social Aspects of ImpactAssessment’, Sudden Impact: Future Assessment, A seminar on the present and future ofimpact assessment in Queensland, 20 August 1996, Environmental Defenders Office (Qld)Inc, Brisbane, pp 4-7.

59 Local Government (Planning and Environment) Act 1990, section 1.4.


3) The environmental impact statement is not required to be perfect. It need not coverevery topic or explore every avenue.

4) The environmental impact statement must not be superficial, subjective or non-informative.

5) It should be comprehensive in its treatment of subject matter and objective in itsapproach.

6) Changes to the proposed development may be made between the exhibition of theenvironmental impact statement and the decision of the decision-maker but not soas to result in a completely different proposal.60

This preparation of the environmental impact statement is done by the proponent(section 8.2(5A)) which is consistent with Schedule 3 cl 3(viii) of the IGAE. TheFitzgerald Report also concluded that the “conduct of an impact study andpreparation of an impact statement are properly matters for the proponent.”61 Thearguments for and against this practice are considered further in the second part ofsection 8.2.3 of this Bulletin - (The Preparation of the Environmental ImpactStatement or Report by the Proponent).

The final stage is the assessment by the lead agency of the environmental impactstatement which must be included by the proponent with the application to the localgovernment (section 8.2(5C)). When this is received the local government mustforward a copy to the Chief Executive and to any “referral agency nominated inthe terms of reference” and request their comments (section 8.2(8)) to be providednot less than 20 working days from the date upon which the referral agency receivesthe request (section 8.2(9)). The referral agency may then refer its comments to thelocal government which, in the case of applications for amendments of a planningscheme, applications for rezoning of land in stages and applications for townplanning consent are taken to be objections (section 8.2(10)).

When a local government makes a decision in relation to the application, it “musthave regard” to the environmental impact statement “as well as any other mattersrelevant to the application” (section 8.2(11D)). There is no specific requirementunder section 8.2 for the local government to have regard to the comments that mayhave been provided by referral agencies during the scoping process.

Angus Innes has pointed out that although an environmental impact statementcannot be enforced as such, any conditions derived from the environmental impactstatement (and subsequently included as part of the approval or licence) which seek

60 Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 Local Government Reports ofAustralia, 21, p 31.

61 Fitzgerald, p 115.


to protect or control matters relating to the environment can be enforced.62 This issubject to certain statutory and legal requirements such as the relevance of theseconditions to the proposal63 and the certainty of these conditions.

6.1.2 Applications Relating to Non-Designated Development

The Local Government (Planning and Environment) Act 1990 also requiresprocedural environmental impact assessment for non-designated developments inthree situations. These are:

(1) If the application is made to a local government and the local government isof the opinion that the implementation of the proposal may have a“deleterious effect on the environment” (section 8.2(12))

If a local authority requires an environmental impact statement it must “specify thematters and things which are to be dealt with in that statement.” There is nospecified procedure, such as is set out in section 8.2 in relation to designateddevelopments, as to the way in which this is determined.

The meaning of the term deleterious effect on the environment64 was consideredin the case of Sabdoen v Redland Shire Council. This case dealt with the nowrepealed section 32A of the Local Government Act 1936 which also incorporatedthe term deleterious effects. His Honour the Chief Justice of the District Court wasconsidering an application for rezoning on land which comprised mixed woodlandwhich included a koala colony, mangrove swamp and tidal salt flats in their naturalstate. His Honour considered the meaning of the term deleterious effect and statedas follows

In absolute terms it is difficult to imagine any form of development that would nothave some disruptive effect on an existing environment. It seems to me that aproper construction of Section 32A calls for a decision whether a particularproposal will deleteriously affect an existing environment to an extent which isunreasonable (judged from the community’s point of view).

I concede that this has the ring of a cliche and could be said merely to raiseanother question namely “what, in this context, is reasonable from the

62 Innes, p 3.

63 Section 6.1

64 This term is also used in section 8.2(1) which places the onus on a local government for non-procedural environmental assessment in certain circumstances. This is discussed further insection 7.1 below.


community’s point of view?” One can only respond that this is a judgement thatmust be made on established facts and other matters which are clearly relevant egthe degree of recognition which the community, through its duly electedrepresentatives, has chosen to give (by statutory planning control or otherwise)the “protection-worthiness” of a particular environment.65

The significance of the decision is that it was held that in establishing thecommunity’s point of view as to whether the environment of a particular area wouldbe deleteriously affected, the court is entitled to consider whether the localauthority, in its formal instruments of planning control, has nominated that area ashaving environmental value worthy of protection. His Honour’s reasoning was asfollows:

In my view the real difficulty which exists in this case is that even though it isclear that the site is in an area which is environmentally sensitive, it is not aNational Park or any form of nature reserve statutorily recognised; it is privatelyowned land. Ordinarily one should be careful to take into account that, subject toexisting town planning and other statutory control, an owner is entitled to use hisland as he wishes and is under no obligation to consider the desirability ofconserving its existing environment…

… it would appear to me to be reasonable that planning authorities acceptresponsibility for the identification of areas where conservation is appropriate.

His Honour warned

It would be quite inappropriate, in my view, for a local authority to rely onSection 32A as a convenient method of precluding, on environmental grounds,development of private land and thereby avoiding the obligation to compensatewhich can flow from other zoning and acquisition provisions of legislation. Apersistent refusal (in the face of all available and relevant information) torecognise the “protection-worthiness” of an area in the formal instruments ofplanning control could well be a basis for an inference that the community(through its duly elected representatives) has decided that its interests do notrequire conservation of that particular environment.66

Weir considered the effect of this judgment and similar judgements in his article“Putting the Environment into the Queensland Local Government (Planning andEnvironment) Act”. Weir acknowledged that because planning controls arestatutory instruments which limit an individual’s common law right to use his or herland freely, the court’s requirement that it is up to the local authorities toaccordingly reflect environmental value in these planning controls is understandable.However, the author points to doubts cast on the role of the local authority in

65 Sabdoen Pty Ltd v Redland Shire Council [1989] QPLR 149, at p 150.

66 Sabdoen Pty Ltd v Redland Shire Council, pp 152-153.


environmental planning “owing to its local focus and its limited ability to deal withbroad environmental issues that transcend State and national boundaries and theobvious dearth of technical expertise in environmental matters”.67

(2) If the application is to a local government to subdivide land “in a mannerwhich provides that any of the allotments included in the proposal are to beused in association with a common lake area”

In this case Section 5.10(3)(a) provides that the local government is not to approvesuch an application unless an environmental impact statement pursuant to section8.2 is made and submitted to the local government.

The section does not elaborate on the procedure to be followed apart from thesubmission of an environmental impact statement pursuant to section 8.2 “settingforth those matters and things that in the opinion of the local government arerelevant to the proposed subdivision”. If the application involves non-designatedland then it is questionable whether those provisions in section 8.2 which deal withreferral agencies and relevant studies will apply. Section 5.10(10) extends theoperation of section 5.10(3) to situations under section 5.10(9) where theapplication provides for the surrender to the Crown of the allotment or allotmentscomprising the common lake area and the placing of those allotments under thecontrol of the local government.

(3) Where the application is for any proposal by a local government forapproval by the Governor in Council (Section 8.2(13))

The Local Government (Planning and Environment) Act 1990 sets out severalinstances where a local government may have to apply to the Governor in Councilfor approval. These include:

• where the local government has prepared a planning scheme for townplanning (section 2.15);

• where the local government wishes to amend this planning scheme (section2.20);

• where a person has applied to the local government to amend the planningscheme under section 4.3 (section 4.5); and

• where a local government wishes to rezone land in stages (section 4.8) orwhere it wishes to rezone one or more subsequent stages of a stageddevelopment plan (section 4.10).

67 Weir, p 416.


In these cases the Chief Executive of the Department administering the LocalGovernment (Planning and Environment) Act 1990 may require the submission ofan environmental impact statement (Section 8.2(13)). If the Chief Executive makessuch a request then the local government may not have to prepare an environmentalimpact statement itself. It may instead submit an environmental impact statementalready supplied in respect of the proposal or it may require the applicant in respectof the proposal (eg the person proposing an amendment to the planning schemeunder section 4.3) to supply the environmental impact statement.68

6.2 STATE DEVELOPMENT AND PUBLIC WORKS ORGANIZATION ACT 1971- THE ‘GREEN BOOK’.

Section 29 of the State Development and Public Works Organization Act 1971 wasenacted in 1978. A general requirement for environmental impact assessment isprescribed by section 29(1) which obliges the Coordinator-General to “co-ordinatedepartments of the Government and local bodies throughout the State in activitiesdirected towards ensuring that in any development proper account is taken of theenvironmental effects.”

Environmental effects are defined as “the beneficial as well as the detrimentaleffects of any development on the physical, biological, or social systems withinwhich such development occurs”.69

Dan Hunt has suggested that

Historically [the environmental impact assessment process under the StateDevelopment and Public Works Organization Act 1971] has been used as alegislative process to alert decision makers to the effects and consequences of adevelopment proposal. It has been used more as a process to manage impactsrather than to determine solely whether a project sinks or swims.70

Although the Act does not, of itself, prescribe any procedure for achieving thestated object of the section, section 29(2) of the Act allows the Minister to approvepolicies or administrative arrangements for environmental impact assessment. Thesehave been published by the Coordinator General in a publication entitled Impact

68 Section 8.2(14).

69 Section 5

70 Hunt, p 2.


Assessment in Queensland - Policies and Administrative Arrangements.71 Thisdocument is known as the Green Book and sets out the procedure to be followedfor environmental impact assessment which is referred to in the document as“impact assessment”. The fact that the procedure is prescribed by the Green Bookwhich is promulgated by order under the Act means that according to Ramsay’s andRowe’s definition the environmental impact assessment under section 29 of theState Development and Public Works Organization Act 1971 is ‘procedural’.

The Green Book procedures are only voluntary guidelines and have been describedas “well and truly out of date”.72 The Green Book is currently under review by thePremier’s Department and it is anticipated that a new document will be producedconsistent with Queensland’s obligations under the National Agreement forEnvironmental Assessment when that agreement is signed by Queensland (seesection 3 above). As has been previously stated, the current process under the StateDevelopment and Public Works Organization Act 1971 probably does not fulfilQueensland’s obligations under this Agreement.

Some prescription is given to the wide ambit of the obligation under section 29(1)by section 29(2). This section nominates the entities who have a responsibility underthe section. These are

a) any department of the Government;

b) any Crown corporation or instrumentality or other person or body representingthe Crown;

c) any local body;73

d) any board, body, authority or corporation constituted or incorporated by or underany statute and authorised by statute to perform public functions or carry on apublic undertaking;

Section 29(2) sets out the circumstances where these entities must consider whetherto require environmental impact assessment. These are

71 Originally approved in March 1979 and republished in January 1987.

72 N Sanders, ‘Independence and Accountability in EIA: One Step Forward and Two StepsBackward?’, Sudden Impact: Future Assessment, A seminar on the present and future ofimpact assessment in Queensland, 20 August 1996, Environmental Defenders Office (Qld)Inc, Brisbane, p 9.

73 Defined as “a local government, a person or body appointed or constituted under any Act andcharged with the collection or administration of money or the performance of a function, ineither case for a purpose of local public concern, and a local body within the meaning of theStatutory Bodies Financial Arrangement Act 1982, and, when used in relation to a particulararea or subject matter, means the local body that has jurisdiction within that area or inconnection with that subject matter”.


• where these entities are considering an application made to them by a personfor the granting of approval for a development74; or

• where these entities are considering undertaking works75 themselves.

In both circumstances the determination of whether environmental impactassessment is necessary must be made when it appears that the undertaking of suchdevelopment or work is “likely to have major environmental effects.”

By including the proposal of public works as a trigger for environmental impactassessment, section 29 therefore obliges certain authorities to decide whether torequire environmental impact assessment of themselves. In other words, it creates asituation where the lead agency or the decision making body is the same as theproponent. It has been suggested that the integrity of the environmental impactassessment process is particularly vulnerable in these circumstances.76

It has been suggested, by Duncan, that the obligations on local government as setout in section 8.2(1) of the Local Government (Planning and Environment) Act1990, (see section 7.1 below) and in relation to mineral resources under the MineralResources Act 1989 (see section 7.3.1 below) are expansions of the generalobligation under section 29.77

74 Defined as “the use of land or water within the State or over which the State claimsjurisdiction and includes the construction, undertaking, carrying out, establishment,maintenance, operation, management and control of any works or private works on or in landor water”.

75 “works” is defined as “the whole and every part of any work, project, service, utility,undertaking or function:

a) that the Crown, the Coordinator-General or other person or body who represents theCrown, or any local body is or may be authorized under any Act to undertake; or

b) that is or has been (before or after the date of commencement of this Act) undertaken bythe Crown, the Coordinator-General or other person or body who represents the Crown,or any local body under any Act; or

c) that is included or is proposed to be included by the Coordinator-General as works in aprogram of works, or that is classified by the holder of the office of Coordinator-Generalas works.”

76 Sanders, p 6.

77 Duncan, p 91.


6.2.1 The Green Book Procedure

The Green Book provides a voluntary procedure by which an authority determineswhether environmental impact assessment should take place and the way in whichsuch assessment is to be conducted. Norrie Sanders has criticised this processidentifying the following deficiencies:

• The triggering process is essentially arbitrary with no clear guidance fortriggering an Impact Assessment Study. Organisations which choose to runassessment studies tend to do so on the basis of organisational policy or practice.

• In many cases the decision maker lacks environmental evaluation skills and has noparticular knowledge of matters

• the decision maker is often the proponent

• Public involvement in the process is non-existent in many cases and is certainlynot a requirement of the Act.

• Process and nomenclature become very confusing; some government agenciesavoid calling the EIA documentation statutory names (EIS or IAS), possiblybecause they imply a higher level of accountability.78

The Green Book identifies three players who have responsibilities under section 29.These are

• the Responsible Authority which is defined as “any State GovernmentDepartment, corporation, statutory authority or local body empowered toconsider an application for the granting of approval for a developmentproposal (by way of general consent, licence or permit etc), or preparing toundertake works which it is empowered to initiate and undertake of its ownvolition;”

• the Developer which is defined as “any private person, organization orcompany proposing to undertake some form of development;” and

• the Advisory Body which is defined as “any State GovernmentDepartment, corporation, statutory authority, local body or privateorganization which has expertise and competence in a particular aspect ofa development proposal or public works.”79

The Green Book also identifies two categories of development to which the Act willapply namely:

78 Sanders, p 10.

79 Office of the Coordinator-General, Queensland Premier’s Department, Impact Assessment inQueensland - Policies and Administrative Arrangements, January 1987, section 1.2.


a) development proposals involving two parties, a Developer and a ResponsibleAuthority, where the Developer is required by legislation, before proceeding witha development, to obtain the approval of the Responsible Authority; and

b) public works, involving a single party, the Responsibility Authority, which isempowered by legislation or Government administrative arrangement to initiateand undertake works of its own volition.80

The first stage of determining whether EIA is required is commenced by theproponent submitting to the Responsible Authority an initial advice statement.The main items to be addressed in this statement are set out in Schedule 2 to theGreen Book. The Responsible Authority must then make a preliminary assessmentof the likely environmental effects of the development. Early consultation (“inadvance of detailed design”) between the developer, the responsible authority and“any other Government agency or community or business organisation whoseinterest may be affected by the development”81 is said to be desirable. Manycommentators have endorsed the value of incorporating EIA at the earliest possibledecision making stage.82 The Responsible Authority then consults AdvisoryBodies83 (see below) or other organisations having an interest in the proposeddevelopment to determine whether an environmental impact statement is required.Hunt has stated that where the roles of proponent and responsible authority areconcurrent “perceptions of independence in this stage” are certainly affected.84

The scoping process should commence with the Responsible Authority referringdetails of the proposal including the initial advice statement to the relevant AdvisoryBody advising of any time constraints. Meetings between these two entities are alsosuggested. The Advisory Body should then submit comments to the ResponsibleAuthority as soon as possible. Comments on the following matters should beprovided:

a) factors, if any, which need to be studied in detail in an impact assessment study,including the types and extent of necessary investigations;

b) statutory provisions and approval requirements relevant to the developmentproposal;

80 Impact Assessment in Queensland, s 1.3.


82 Hunt, p 8; Brown & McDonald, pp 66-67.

83 Schedule 3 (Appendix A to this Bulletin) is an “indicative” list of development impacts orattributes which could require the advice of the relevant Advisory Bodies.

84 Hunt, p 3.


c) possible beneficial and detrimental effects which may be caused by the proposeddevelopment, and their significance;

d) the types of measures which the Advisory Body considers appropriate toameliorate detrimental impacts where these measures are known to the AdvisoryBody from experience;

e) possible means of monitoring actual impacts during the project lifetime;

f) the possibility and desirability of using the area concerned for purposes otherthan that proposed;

g) information possessed by the Advisory Body or known to be available elsewherewhich would be of relevance to an impact assessment study; and

h) any other relevant matters which should be considered by the ResponsibleAuthority.85

The Responsible Authority then considers these comments to re-evaluate the likelyeffects of the proposed development and decide whether an impact assessment studyis required.

The second stage is a determination of what the impact assessment statementshould contain - ie its terms of reference. The Responsible Authority should prepare“appropriate and precise” terms of reference. If the development involvescomplex factors and conflicting Advisory Body objectives or advice, then draftterms of reference should be prepared and circulated to the Advisory Bodies forfurther comment and/or the relevant Advisory Bodies may meet. The terms ofreference should be decided on a case by case basis but the impact assessment studyshould be required to provide

a) description of relevant aspects of the existing environment;

b) description of the development proposal and any optional means of achieving thedevelopment objectives;

c) definition and analysis of the likely impacts of the development on theenvironment;

d) definition of all significant impacts and measures proposed to mitigate againstthose effects; and

e) presentation of an environmental management programme to monitor actualimpacts of the development, and mitigate adverse impacts.86

Previous comments in relation to the way in which terms of reference are preparedand their adequacy (see section 6.1.1 above) are also relevant here. Hunt has stated




In the past the Terms of Reference for an IAS have been prepared in conjunctionwith Advisory Bodies, (usually government agencies), peak environmental andcommunity groups. More recently, the Terms of Reference have been advertisedand the public have been invited to submit comments.

A major criticism here is that the Terms of Reference can be of a “take it or leaveit” nature which can confine the proposed assessment to the option of adevelopment proposal favoured by the proponent. In other words a solutionrather than the full consideration of the problem at hand is put forward forassessment.

Once again, there is some potential for the proponent and the responsibleauthority to scope the IAS Terms of Reference to suit their agenda and make thefinal decision concerning what goes into the Terms of Reference.

To enhance the independence and integrity of this important stage, it is now moreusual for the responsible authority to obtain broader input and expert advice fromthe public sector, industry and the community, and then to broker an acceptableand balanced Terms of Reference with key stakeholders.87

The third stage is the preparation of the impact assessment study which is theresponsibility of the proponent. The Responsible Authority should monitor theprogress of the impact assessment study and assist where possible with solving anyproblems or minimising any delays which the proponent may encounter.

The fourth stage is the assessment of the impact assessment study report. TheResponsible Authority should refer copies to the Advisory Bodies for commentwhich should be undertaken as soon as possible. The Responsible Authority shouldalso determine (after considering the advice of the Advisory Body and Developer)whether the impact study report or summary shall be formally released to the public.The Green Book encourages public release and where it occurs, stipulates that therelevant Advisory Bodies shall be notified and that a copy of the report is to besubmitted to the State Library.

The Responsible Authority should subsequently determine whether approval for theproposed development is to be granted and what conditions are to be imposed.

In cases where a proposed development is subject to approvals from more than oneResponsible Authority, consultation between those authorities should take place. Itis also suggested that it would be preferable that one Responsible Authority co-ordinate the impact assessment study if it is required and in particularly complexcases the Coordinator General may coordinate the impact assessment requirements.

87 Hunt, p 5.


6.3 ENVIRONMENTAL PROTECTION ACT 1994

Part 5 of Chapter 3 of the Environmental Protection Act 1994 sets out therequirements and conditions for the conduct of environmental evaluations incertain circumstances. Environmental evaluations are described as bothenvironmental audits (where there has been non-compliance with a licencecondition of an environment protection policy or management program) andenvironmental investigations.

An administering authority can require, by written notice, a person conducting orproposing to conduct an activity to conduct or commission an environmentalinvestigation pursuant to section 73 of the Act

if the administering authority is satisfied on reasonable grounds that -

a) an event has happened causing serious or material environmental harm while anactivity was being carried out; or

b) an activity or proposed activity is causing, or is likely to cause serious or materialenvironmental harm.

The administering authority is defined as either the Chief Executive or, in caseswhere the administration of the Act has been devolved to a local government, thatlocal government. The cases where the administration of the Act has been devolvedto local government are prescribed by Regulation 40 of the EnvironmentalProtection (Interim) Regulations 1995 which nominate certain environmentallyrelevant activities set out in Schedule 1 to those regulations. (Eg. poultry farmingwhere there are more than 1000 birds and petroleum product storage of more than10,000 litres).

The person required to conduct such an investigation (ie the person carrying out theactivity or proposing to do so) is referred to as the recipient. The recipient is tosubmit a report on the investigation. (Both the investigation and report are to beconducted and prepared at the cost of the recipient.)

If a person fails to comply with a requirement to conduct an investigation they areliable to a maximum penalty of 100 penalty units ($7500).


There are several definitions relevant to this obligation. There is a general definitionof environmental harm (section 14) as being

any adverse effect, or potential adverse effect (whether temporary or permanentand of whatever magnitude, duration or frequency) on an environmental value.

Environmental harm can be caused directly or indirectly or from one factor or acombination of factors (section 14(2)).

Environmental value is defined in section 9 as

a) a quality or physical characteristic of the environment that is conducive toecological health or public amenity or safety; or

b) another quality of the environment identified and declared to be an environmentalvalue under an environmental protection policy or regulation.

The definition for material environmental harm (section 16) can be broken downto three elements. Firstly it is defined as environmental harm that is notenvironmental nuisance. This in turn is defined in section 15 as

unreasonable interference or likely interference with an environmental valuecaused bya) noise, dust, odour, light; or

b) an unhealthy, offensive or unsightly condition because of contamination; or

c) another way prescribed by regulation.

The other two elements are alternatives. The harm can be material if it is not“trivial or negligible in nature, extent or context”. Alternatively the harm will bematerial if it causes actual or potential loss or damage to property in an amount ortotal amounts of more than $5000 but less than $50 000.

Serious environmental harm (section 17) again cannot be environmental nuisanceand will be constituted according to the extent of the harm, the area in which theharm occurs or the amount of actual or potential loss or damage or cost forprevention or rehabilitation. It must be harm that causes

• “irreversible, of a high impact or widespread” actual or potential harm toenvironmental values;

• “actual or potential harm to environmental values of an area of highconservation value or special significance”; or

• actual or potential loss or damage to property of more than $50 000; or

• costs of more than $50 000 being incurred to prevent or minimise the harmand rehabilitate or restore the environment to its “pre-harm” condition.

The recipient must submit a report following an environmental investigation. Thisreport is to be accompanied by statutory declarations by the recipient (as to thetruth of information provided to the investigator) and by the investigator as to the


investigator’s qualifications and experience and to the report’s truth, completenessand relevance (section 75).

The administering authority then must decide (within 28 days of receipt, but subjectto extension) whether to accept the report (section 76). If not, then a further reportor information may, by written notice, be required. If the report is accepted, theadministering authority may

a) require the recipient to prepare and submit an environmental managementprogram to it; or

b) amend conditions of the recipient’s licence; or

c) serve an environmental protection order on the recipient; or

d) take any other action it considers appropriate.88

An environmental management program is defined in section 80 as

a specific program that, when approved, achieves compliance with this Act for thematters dealt with by the program by

(a) reducing environmental harm; or

(b) detailing the transition to an environmental standard.

6.4 MINERAL RESOURCES ACT 1989

The Mineral Resources Act 1989 requires both procedural and non-proceduralenvironmental impact assessment both of which are triggered when an applicantapplies for certain permits and/or licences permitting mining or exploration activityon land in Queensland. The most intrusive of these activities is permitted under amining lease which is provided for within Part 7 of the Act.

The Act places an immediate onus on any applicant to assess the environmentalimpact of the proposed mining lease by providing that the application for that leasemust:

… (o) be accompanied by

… (iii) a statement, acceptable to the Minister-

(A) outlining the mining program proposed, outlining its method ofoperation, and providing an indication of when operations are expectedto start or, if a mining program is not proposed, outlining the useproposed for the land and providing an indication of when the proposeduse is to start; and

88 Section 76(2)


(B) of proposals for infrastructure requirements necessary to enable themining program to proceed, or additional activities to be carried on towork out the infrastructure requirements; and …

… (p) be accompanied by an environmental management overview strategy,acceptable to the Minister, stating strategies for

(i) protecting the environment and managing environmental impactson, and in the vicinity of, the land to be covered by the proposedlease; and

(ii) progressive and final rehabilitation of the land.89

Based on the contents of this statement, the Minister may then require the applicantto “carry out a study of the proposed mining project’s environmental impact” andprepare an environmental impact statement. The Minister must make such adecision before the objection day for a mining lease ends. There is no otherprescription on the Minister’s discretion to exercise this power, (though the Ministerdoes not have to require an environmental impact statement where an environmentalimpact statement has already been prepared under either an exploration permit ormineral development license and, in the Minister’s opinion, the way in which theproject impacts on the environment is not substantially different from the impactindicated on this existing environmental impact statement90).

If the Minister decides that an environmental impact statement is required theMinister must notify the mining registrar and the applicant accordingly (see below).The content of the environmental impact statement is scoped by the preparation ofdraft terms of reference91, consultation (any person may provide comments on thedraft terms of reference which must be considered by the Minister)92 and then thepreparation of final terms of reference.93

Once the environmental impact statement is prepared the applicant must give a copyto the Chief Executive of the department responsible for mining who must provide acopy to the mining registrar to be displayed and published94 (see below). The noticedisplayed by the mining registrar must state a day, two months after the day the

89 Mineral Resources Act 1989, section 245.

90 Section 261(6).

91 Section 262.

92 Section 262(5) & 263.

93 Section 263.

94 Section 264.


notice is displayed, as being the last day for written objections to be provided to themining registrar. The Wardens Court is specifically prohibited from hearing ormaking any recommendation in relation to the application until this time expires.

The public is kept aware of these various decisions by notice requirements which arethe most detailed of the statutes requiring environmental impact assessment inQueensland. The mining registrar is obliged to immediately display in the miningregistrar’s office (at each appropriate stage) notice of the following:

• the decision to require an environmental impact statement;

• draft guidelines for the preparation of the environmental impact statement;

• final guidelines for the preparation of the environmental impact statement;and

• the fact that an environmental impact statement is available for inspectionand copies can be purchased.

Copies of all of these notices are also to be provided (at each stage) to

• the applicant;

• each owner of land covered by the proposed mining lease;

• the relevant local government; and

• anyone who has already lodged an objection to the mining lease.

Furthermore, the applicant is obliged to publish notice of the decision to require anenvironmental impact statement, and notice of the fact that an environmental impactstatement is available for perusal and purchase, in an approved newspaper thatcirculates in the relevant mining district.

Time limits are provided for the completion of each stage.

The preparation of terms of reference within the mining industry was the subject ofa paper delivered by Dr Errol Stock in August 1996. Dr Stock was critical of theprocess saying that although public groups have been invited to comment on thedraft guidelines, these groups “rarely see that their contributions have influencedthe final TOR and they receive little or no formal feedback from the lead agency ofhow the group’s comments were evaluated.”95 Dr Stock was also critical of themechanisms for the way in which terms of reference are drafted which, he states, isusually by the development of generic terms of reference into draft terms ofreference and then into the final form. He stated that “many draft guidelines …contain apparently refractory artefacts from the generic set which should have

95 E Stock, ‘Context, Content and Responsibility in Setting Guidelines in Impact Assessment’,Sudden Impact: Future Assessment, A seminar on the present and future of impact assessmentin Queensland, 20 August 1996, Environmental Defenders Office (Qld) Inc, Brisbane, p 3.


been eliminated during a closely supervised process of refinement”.96 He cites theexample of recent draft guidelines for the Ely Bauxite Project which required aspecified scale of map productions and recommended the use of a certain textneither of which he suggests were appropriate for the project.

A similar process is prescribed for applications for mineral development licences.An application for a mineral development licence, provides that the applicationshall,

(m) if the nature of the activities proposed to be conducted under the mineraldevelopment licence may have an environmental impactbe accompaniedby a statement containing proposals

(i) to protect the environment while conducting the activities and

(ii) for the progressive and final rehabilitation of the land;97

Section 5 of the Act states that

“environmental impact” of the use, development or protection of land, includesthe following

(a) positive or adverse impact on the environment;

(b) temporary or irreversible impact on the environment;

(c) cumulative impact on the environment over time or in combination with otherimpacts because of the scale, intensity, duration or frequency of the impacts;

(d) potential impact on the environment that

(i) is highly likely to happen; or

(ii) may be serious or irreversible but is unlikely to happen.

There is no stipulated procedure in relation to the provision of the statement undersection 183. Sections 195 and 196 set out similar procedures for the issuing andpublication of draft guidelines and guidelines for an environmental impact statementbut these sections only appear to apply if a mineral development licence holdergives written notice to the Minister of the holder’s plans to prepare anenvironmental impact statement about a proposed mining project. A miningproject is defined as mining carried on under one or more mining leases as a singleintegrated undertaking. Similar provisions relate to the preparation of draftguidelines where the holder of an exploration permit gives notice to the Minister

96 Stock, p 4.

97 Section 183(m).


of the holder’s plans to prepare an environmental impact statement about aproposed mining project.98

The only other form of procedural environmental impact assessment under theMineral Resources Act is in relation to mining claims, the applicant for which mustinclude with the application:

(iv) an outline, to the mining registrar’s satisfaction, of the proposed miningprogram that

(A) states when operations are expected to start; and

(B) briefly describes the measures the applicant plans to take to minimiseadverse environmental impact; and

(C) includes proposals for the progressive and final rehabilitation of theland.99

6.5 PROCEDURAL ENVIRONMENTAL IMPACT ASSESSMENT REQUIRED

UNDER OTHER ACTS

There are a number of other pieces of legislation in Queensland which requireprocedural environmental impact assessment. In each of these cases the onlyprocedure specified by the legislation is the submission by a person or applicant ofan environmental impact statement. This is required by the following Acts:

6.5.1 Integrated Resort Development Act 1987

This Act provides for the procedures to be followed in relation to the granting ofapproval of schemes for “integrated resort development”. There is no definition ofintegrated resort contained within the Act, however in the Second Reading Speechto that Bill the then Minister for Local Government, the Hon R Hinze described theBill as applying to developments for “fully serviced and self contained destinationresorts” or “condominium resorts”.100 The Act was based on the Sanctuary CoveResort Act 1985.

98 Sections 142 & 143.

99 Section 61(j)(iv).

100 Hon R Hinze, MLA, Integrated Resort Management Bill, Second Reading Speech,Queensland Parliamentary Debates, 31 March 1987, pp1062 -1063.


Section 4 provides that an application for a scheme to be an approved scheme mustbe made to the Minister in the prescribed manner and is to include the informationand material specified in Part A (and Part B if required by the Minister) of theSchedule. Paragraph 13 of Part A provides that the application is to contain

A study report on the environmental impact of the scheme and, ifapplicable, the subsequent stages in the future development area.

6.5.2 Land Act 1994

Under Part 6 of Chapter 5 of the Land Act 1994, the Chief Executive is allowed toissue tree clearing permits. Section 260 of the Act provides that the ChiefExecutive may ask an applicant for such a permit to provide a tree managementplan. The tree management plan must, pursuant to section 261, identify thefollowing -

a) the main features of the land, including natural features and improvements;

b) major vegetation types;

c) environmentally sensitive areas;

d) stands of commercial timber;

e) the area of the land currently cleared;

f) the area proposed to be cleared;

g) the proposed land use after the initial clearing of the trees;

h) the way the trees are to be cleared;

i) the likely follow-up operations to control regrowth;

j) any planned revegetation or rehabilitation;

k) other information prescribed under the regulations.

Any permit issued is subject to the tree management plan if one is included in thepermit. Section 262 goes on to provide that the Chief Executive must considervarious environment issues having regard to the objects of the Act (which includesprotection of environmentally and culturally valuable and sensitive areas andfeatures) in deciding whether to issue a tree clearing permit. Any permit issued issubject to the tree management plan if one is included in the permit. These sectionsof the Land Act had not commenced as at 1 February 1997.

6.5.3 Water Resources Act 1989

Pursuant to section 71 of the Water Resources Act 1989, the owner of land thatwholly contains a watercourse or a length of a watercourse or abuts a watercoursemay apply to the Chief Executive for a permit to destroy vegetation in thewatercourse or excavate or place fill in the watercourse. The Chief Executive may


require the applicant to supply further information including a statement ofenvironmental effects. Section 70 of the Act prohibits such activities unless a permithas been obtained.

6.5.4 Canals Act 1958 - Canals Regulation 1992

Regulation 6 of the Canals Regulation 1992 sets out the requirements for anapplication for provisional approval to construct a canal. The application must beaccompanied by specified documents including

3(i) a written assessment of the potential environmental impact that may resultfrom the construction of the canal prepared in accordance with guidelinesapproved by the Director-General.

7. NON-PROCEDURAL ENVIRONMENTAL IMPACTASSESSMENT - QUEENSLAND LEGISLATION

Ramsay and Rowe have identified ‘explicit’ non-procedural environmental impactassessment as being prescribed by those sections of the Local Government(Planning and Environment) Act 1990 and Environmental Protection Act 1994which are discussed below.

7.1 LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT 1990

7.1.1 Section 2.19(2) of the Local Government (Planning and Environment)Act 1990

This section deals with the situation where the Minister or a local government (whofor the purposes of these sections are known as the proponent) has proposedcertain kinds of amendments (set out in section 2.18(2), 2.18(3) or 2.18(3A)) to aplanning scheme. The proponent’s power to do so is dependent on a priorconsideration of section 2.19(2) which requires that the proponent is to assesscertain matters “to the extent that they are relevant to the proposal”. Thesematters include

(f) the impact of the proposal on the environment (whether or not anenvironmental impact statement has been prepared)101

101 Section 2.19(2)(f).


7.1.2 Section 8.2(1) of the Local Government (Planning and Environment)Act 1990

This section requires a local government “when considering an application for itsapproval, consent, permission or authority for the implementation of a proposalunder this Act or any other Act, … to take into consideration whether anydeleterious effect on the environment would be occasioned by the implementationof the proposal”.

The question of what constitutes deleterious effects has been discussed in section6.1.2 above.

The local authority is obliged to consider deleterious effects that “would beoccasioned by” the development. It is in this context that what constitutes theenvironment in each case is properly defined in each case (in accordance with theprinciples considered in section 2.2 above).

7.2 ENVIRONMENTAL PROTECTION ACT 1994

Pursuant to Part 4 of Chapter 3 of the Environmental Protection Act 1994 a personmay apply to an administering authority (see definition in section 6.3 above) for an“environmental authority” which is a licence or approval to conduct“environmentally relevant activities” prescribed under that Act (eg certainaquaculture activities and certain chemical, coal and petroleum products activities).Section 44 sets out the criteria to be applied by the administering authority indeciding whether to grant or refuse such an application which include (section44(b)(i)) consideration of the standard criteria. These are set out in the dictionaryin Schedule 4 as follows:

a) the principles of ecologically sustainable development as set out in the NationalStrategy for Ecologically Sustainable Development; and

b) any applicable environmental protection policy; andc) any applicable Commonwealth, State or local government plans, standards,

agreements or requirements; andd) any applicable environmental impact study, assessment or report; ande) the character, resilience and values of the receiving environment; andf) all submissions made by the applicant; andg) the best practice environmental management for the activity under the authority,

program or order; andh) the financial implications of the requirements of the authority, program or order

as they would relate to the type of activity or industry carried on under theauthority, program or order; and

i) the public interest; andj) any other matter prescribed by regulation.


Ramsay and Rowe described the obligations under this section as non-proceduralenvironmental impact assessment102 and point to the general environmental duty onall persons and the State of Queensland under section 36 of the EnvironmentalProtection Act 1994 as offering “more precise specification of how the obligationto consider environmental effects is to be met, even without importing a proceduralEIA requirement”.103

This general environmental duty is to take “all reasonable and practicablemeasures to prevent or minimise” environmental harm (see definition in section 6.3above) which is likely to be caused in carrying out any activity.

7.3 NON-PROCEDURAL ENVIRONMENTAL IMPACT ASSESSMENT -OTHER ACTS

7.3.1 Mineral Resources Act 1989

Part 4 of the Mineral Resources Act 1989 deals with mining claims which entitlethe holder to prospect or hand mine on the land the subject of the claim. Section61 sets out the information which must be supplied with an application for a miningclaim and includes

(j)(iv)an outline, to the mining registrar’s satisfaction, of the proposed miningprogram that-

(A) states when operations are expected to start; and

(B) briefly describes the measures the applicant plans to take to minimiseadverse environmental impact; and

(C) includes proposals for the progressive and final rehabilitation of theland.

7.3.2 Electricity Act 1994

Section 27 of the Electricity Act 1994 sets out the conditions of the issue of ageneration authority which is a licence authorising the holder, the generationentity, to connect the generating plant stated in the Authority to the transmission




grid or supply network stated in the Authority. These stated conditions include thefollowing:

(c) the generation entity must properly take into account the environmentaleffects of its activities under the authority;

8. COMMENTARY ON ENVIRONMENTAL IMPACTASSESSMENT IN QUEENSLAND

Before considering recent commentary as to the effectiveness of environmentalimpact assessment it is worth identifying what environmental impact assessment isdesigned to achieve. Barry Carbon, the Executive Director of the Commonwealth’sEnvironment Protection Agency, has recently identified the various participants tothe process as follows:

• The customer - the main customer is the person or persons responsible forproject approval, often government ministers.

• The players - the main players are the developers who will modify andmanage their project in such a way that the environment is protected.

• The owners of the environment - the public of Australia own theenvironment in that it is they who demand, and who are ultimatelyresponsible for, the protection of the environment, which may be impactedby the proposal.104

With these concepts in mind, Carbon defined successful environmental impactassessment as “an orderly process where the needs and rights of the customers, theplayers and the owners are given mutual respect”. He stated that “It shouldprovide the basis for protection of the environment in exchange for security ofdecision-making for development, and give all of the stakeholders a say before adecision is made.”105

Carbon has stressed the objective of environmental impact assessment as beingenvironmental management by “the proponent”. He is concerned at what he seesas a misrepresentation of the process of environmental impact assessment -

Strangely, I still hear advocacy for a process which assumes an active position infavour of environment, and a neutral position towards development. Successful

104 B Carbon, ‘EIA - An Overview’, Australian Journal of Environmental Management, 2(2),June 1995, pp 62-64 (p 63).

105 Carbon, p 63.


EIA must have an active position in favour of environment, and an active positionin favour of development. 106

8.1 ACHIEVEMENTS OF ENVIRONMENTAL IMPACT ASSESSMENT

Most commentators identify similar sorts of problems with the environmental impactassessment process. These will be considered further below. There is, however,general agreement that environmental impact assessment has had some success.Most notably it is considered successful merely by the fact that its role has become“well-accepted and established”.107

The widespread requirement for environmental impact assessment has meant that atleast environmental considerations are no longer completely ignored, though itwould be a gross misconception to think that because environmental impactassessment regimes exist in Queensland, there are no longer any adverse impacts onthe environment. Brown and McDonald have identified the “educative role” ofenvironmental impact assessment as having been particularly effective. They notethat environmental impact assessment has:

(1) involved new and beneficial players in the planning and design processincluding:

(a) academics not previously involved in planning activities (ecologists,anthropologists etc)

(b) the public, both directly and indirectly

(c) non-government organisations

(2) encouraged the development of predictive and evaluative models (in thepollution area for example) to assist with assessment

(3) stimulated the environmental education of many players in the developmentprocess:

(a) engineers

(b) planners

(c) proponents

(d) lawyers

(e) decision makers

106 Carbon, p 63.



(4) encouraged a greening of the boardroom - fewer environmentally unsoundprojects go on to the drawing board, or leave the drawing board

(5) facilitated the development of environmental policies, guidelines, principles,ethics, mission statements and responsibilities in a diverse range oforganisations:

(a) private enterprise

(b) government instrumentalities

(c) professional organisations

(6) acted as the vanguard for institutional and corporate mainstreaming ofaction in the environmental area, laying the foundations for more recentenvironmental action tools such as environmental auditing, and theadoption of sustainable development policies.108

8.2 PROBLEMS OR LIMITATIONS OF ENVIRONMENTAL IMPACT

ASSESSMENT

The general complaint in relation to the system of environmental impact assessmentin Queensland is that it is “disjointed, fragmented and incoherent”.109

There is a lack of legislative certainty in all aspects of the process which, it has beensuggested, “has meant that many agencies have actually invented processes forthemselves” so that in Queensland we “now have a plethora of processes andproducts developed as internal working procedures. Indeed within someDepartments, different areas have different processes and product names. We nowhave environmental impact statements, impact assessment studies, impactmanagement plans, environmental management plans, reviews of environmentalfactors and environmental management overview strategies”.110

There is general expectation that the proposed Integrated Planning Bill and theproposed amendments to section 29 of the State Development and Public WorksOrganization Act 1971 will resolve some of these problems.

Apart from the general legislative uncertainty, several areas within theenvironmental impact assessment system have been identified by commentators asbeing problematic and these are discussed below.

108 Brown & McDonald, pp 68-69.

109 Fisher, p 18.

110 Sanders, p 9.


8.2.1 Application of Environmental Impact Assessment - TriggeringMechanisms

There are two ways in which trigger mechanisms are specified by the statutoryregimes in Queensland. These are

• categoric specification - where environmental impact assessment is triggeredby the type of activity; and

• the application, by a nominated entity, of an ‘effects’ threshold.

The categoric specification in the Queensland statutes is mainly limited to certainkinds of individual development projects, eg designated developments. This createsdeficiencies in that firstly such ‘project focus’ of environmental impact assessment isa “reactive rather than proactive decision making procedure”.111 Secondly such afocus means that non-project or development activities which may have an adverseeffect on the environment will not be subject to environmental impact assessment.Ramsay and Rowe have suggested that there are grounds for extending the processbeyond development projects towards a more “integrated consideration of, forexample, tax policy, industry policy or even education policy [which] could attemptto identify potential environmentally adverse effects”. The authors have suggestedthat environmental impact assessment could be applied to the manufacture and useof automobiles or planes or the aerial pesticide spraying of crops. They have alsonoted that despite the individual project focus of statutory environmental impactassessment in Australia certain individual projects having very substantial potentialor adverse effects, such as the two nuclear reactors in Australia, have never beensubjected to environmental impact assessment.112

A third problem is the fact that the trigger is quite often an individual project so thatany resulting environmental impact assessment will not have a sufficiently widefocus. It has been suggested that

A major disadvantage of project-by-project assessments is that overallenvironmental stresses within particular regions may not be predicted andproperly taken into account in development planning. Each individual projectmay be predicted to have negligible environmental impact, but the totality ofimpacts may result in serious environmental degradation.113

111 James, p 80.

112 Ramsay & Rowe, pp 499-500.

113 James, p 79.


Under the statutory regimes discussed in this bulletin, those entities which mustrespond to the effects threshold trigger are

• local governments (eg sections 8.2(1) and 8.2(12) of the Local Government(Planning and Environment) Act 1990; and section 29 of the StateDevelopment and Public Works Organization Act 1971);

• the Chief Executive of a Department (eg. section 8.2(2) and 8.2(13) of theLocal Government (Planning and Environment) Act 1990 and section 73 ofthe Environmental Protection Act 1994); and

• the Minister (eg section 261 of the Mineral Resources Act 1989) and thoseentities set out in section 29 of the State Development and Public WorksOrganization Act 1971.

The trigger involves an exercise of discretion as to whether or not the effect hasreached the statutory threshold, eg that “deleterious effects” have occurred.

Fitzgerald has nominated the “fragmented and inconsistent decisions” made inrelation to the initial requirement of environmental impact assessment as being oneof the limitations in the process.114 The other obvious difficulty these entities have isthat their ability to satisfy statutory environmental impact assessment obligationsdepends on advance knowledge that a trigger event has occurred requiring anexercise of the discretion. As Ramsay and Rowe have pointed out the public isusually an important source of such information but the public will not necessarilyfind out. Those authors have suggested that even when the trigger is ascertainable,the decision whether to require environmental impact assessment should be made byan independently constituted body so that political influence is minimised and thedecision is more likely to be open to public scrutiny.115


115 Ramsay and Rowe, p 502.


8.2.2 Timing of Environmental Impact Assessment

The main criticism here is that the environmental impact assessment process is notcommenced early enough and ends too soon. The parties to the IGAE have agreedthat

time schedules for all stages of the assessment process will be set early on aproposal specific basis, in consultations between the assessing authorities and theproponent.116

All of the statutory regimes discussed in this paper apart from the EnvironmentalProtection Act 1994 potentially require environmental impact assessment at thestage of application for approval of a plan or licence. It has been suggested that

There is still a tendency, slowly changing, to regard environmental requirementsas an unwelcome addition to the costs of a project, to be postponed for as long aspossible, rather than as an inherent feature of the project, evaluation of whichmust be commenced as soon as the project is a serious proposition. The “EIShurdle” approach, in fact, sometimes backfires on proponents who find that, inorder to meet environmental criteria, a complete technical and thus economicreappraisal of the project becomes necessary. The problem is furthercompounded by governments and authorities which are only too willing to givewholehearted and often unconditional support to a project in principle followingonly economic and technical evaluation. The pressure is then really on theenvironmental protection authority not to delay the project too much by making“unreasonable” demands.117

Hunt has advocated “ongoing phased assessment” suggesting that the assessmentprocess should be

… a strategic process which is systematically built into each decision-makingphase of a proposal’s development - conceptual, feasibility, planning, design,construction etc. For example during the earliest possible decision making phase,the preliminary planning or conceptual phase, environmental and social factorsshould be considered in the context of existing strategic policy and planningframeworks for economic development, transport, land use, environmentalprotection and stated community goals in order to eliminate options that areenvironmentally and socially unsound and publicly unacceptable. There shouldbe scope and opportunity for the community to be briefed and to provide possiblecommitment at each of the aforementioned phases.118

116 Intergovernmental Agreement on the Environment, Schedule 3, Clause 3(vi).

117 Bates, p 182.

118 Hunt, p 8.


Brown & McDonald are also strong advocates of environmental impact assessmentbeing integrated into the planning and design stages of project development. Theyhave suggested the concept of “decision scoping” which they say would involve thedevelopment of “a schedule of all the planning and design decisions to be madeduring the life of project planning and approval”, and would identify “whatinformation on environmental constraints and opportunities will be pertinent ateach decision-point.”119 Sanders has also highlighted this problem but suggests thatincreasingly the detailed design phase and the management of construction programsis being linked to environmental management.120

The premature end to assessment is also a concern. Bates has stressed theimportance of “post-decision” monitoring to assess whether controls are adequateor predictions correct.121 He has suggested that the accuracy of environmentalimpact predictions as well as the adequacy and efficiency of environmentalmanagement structures could be examined by environmental audits. Sanders hasalso suggested that such audits would contribute to more independence in theenvironmental impact assessment process. The Environmental Protection Act 1994includes environmental audit provisions (Part 5) which apply to licences granted toenvironmental authorities under Part 4 (see section 6.3 above).

8.2.3 The Integrity of the Environmental Impact Assessment Process

Concerns which relate to the integrity of the environmental impact assessmentprocess include the following:

• The adequacy of scoping practices;

• The preparation of environmental impact assessment reports or impactstatements by the proponent; and

• The adequacy of the environmental impact assessment.

The Adequacy of Scoping Practices

The importance of proper scoping has been previously raised in this paper (seesection 6.1.1). The integrity of any environmental impact assessment report willvery much depend on the quality and accuracy of any terms of reference given to theproponent for no-one can be held accountable for an impact not addressed in an


120 Sanders, p 5.

121 Bates, p 186.


environmental impact statement if they were not asked to address it. Well tailoredterms of reference, it has been suggested, are ones which have ownership of a widespectrum of the stakeholders and which clearly signal to the proponent thosefeatures of the development which are considered to be particularly important inrelation to environment impacts.122

A good example of inadequate terms of reference was provided by Dr Dale in theSudden Impact seminar who cited a case concerning an application for rezoning andtown planning consent to enable sand mining in the Ningi area.123 The final sectionof the terms of reference related to consultation and read:

In preparing the EIS (Environmental Impact Statement) the consultant shouldconsult affected and interested groups. The EIS should detail any publiccomments sought from and any consultation conducted with any affected groups(for example community, environmental, industry) in developing the proposal andpreparing the EIS.124

Dale described the core inadequacies of this TOR as including the fact that they donot

• provide the consultant with any notion of “adequate” or minimum levels ofconsultation;

• articulate those groups that need to be consulted as a minimum to undertake aquality IA process;

• make clear the objectives of, or the principles to be applied, during theconsultation;

• provide a mechanism for affected groups to negotiate a solution to impacts withthe developer.125

Both the Green Book and section 8.2 of the Local Government (Planning andEnvironment) Act 1990 set out a ‘scoping procedure’ to be followed involvingconsultation between the decision maker and the proponent with advice from otherparties (ie advisory bodies and referral agencies). Commentators have criticised theprocess as being superficial and informal. One of the main criticisms has been thefact that the process does not provide a formal role for the public. For example ithas been suggested that the regime under section 8.2(3) of the Local Government

122 Sanders, p 7.

123 Harrison and Genery v Caboolture Shire Council and others, Unreported 1996, Planning andEnvironment Court, Brisbane, per Quirk DCJ.

124 Terms of Reference for Sandmining Proposal in the Ningi Area, Queensland Department ofHousing, Local Government and Planning, 1994. As quoted by Dale, p 2.

125 Dale, p 2.


(Planning and Environment) Act 1990 views environmental impact assessment asonly, or primarily, a matter of preparing an environmental impact statement or otherreport while other states’ regimes have additional requirements of public notificationand advertisement and receipt of submissions and their consideration.126 Certainlythe requirements under sections 261 - 263 of the Mineral Resources Act 1989 allowfor much more consultation than the Local Government (Planning andEnvironment) Act 1990. It has also been suggested that the scoping process is toonarrow in that issues such as social and economic impacts, heritage matters,Aboriginal sites, impact on adjoining lands and the public viewpoint127 are ignored.128

The Preparation of the Environmental Impact Statement or Report by theProponent

The fact that any environmental impact statement or report is prepared by theproponent, who has the greatest stake in the acceptance of the proposal, createsproblems in a lack of independence or perceived lack of independence. Even wherethe proponent engages consultants to prepare the report there is still the perceptionthat these consultants would be biased in preparing a report favourable to theproponent’s interests because of the commercial arrangement they have with theproponent. The problem is compounded by the fact that these reports are very oftenwithheld from public scrutiny.

The fact that the proponent should prepare any environmental impact statement isendorsed by the IGAE. The ANZECC National Agreement on EnvironmentalImpact Assessment also firmly endorses the existing relationship between consultantand the proponent with value being seen in the education of the proponent andinfluence on the project design.129 The Fitzgerald Report has also recommendedthat the “conduct of an impact study and preparation of an impact statement areproperly matters for the proponent which is required to provide and pay for thatstage of the process.”130 There is also the argument that the proponent should bepermitted to decide who will undertake the assessment as it is the proponent whopays and it is the proponent’s proposal in the first place. (The issue of cost appears

126 Ramsay and Rowe, p 505.

127 Sanders, p 5.

128 James, p 83; Bates, pp 185-186.

129 Sanders, p 6.



to be a large impediment to the practicality of the report being prepared by anyoneelse).131

Environmental consultant Norrie Sanders has suggested that the preparation of theenvironmental impact assessment documentation by the proponent should notnecessarily lead to lesser quality of environmental impact assessments. Ironically hisexperience is that the relationship between the proponent and consultant is actuallyquite tenuous as the proponent is quite often prepared to leave the preparation ofthe report up to the consultant. He suggests that the proponent recognises that theneed for a sound approach to environmental management is integral to the ultimateapproval, which is what the proponent wants. He also suggests that most reputableconsultants will not jeopardise their reputations (and their prospects of furthercommissions) by producing shoddy work.

Alternatives which have been suggested include

• requiring that the reports be prepared by a government department or anappropriate public authority; (though it is suggested that such reports wouldnot necessarily be free from bias either)132

• ongoing monitoring and supervision by an auditor or public authority; and

• environmental impact assessment being undertaken by a consultant jointlyappointed by the lead agency or public authority or from an approved list (ieaccredited).133

Even if the report continues to be prepared by or at the behest of a proponent,checks and balances on any lack of independence could be achieved by an earlydetermination of the need for environmental impact assessment and proper andadequate scoping (including public participation).134

Another solution would be to improve the assessment and the review of anystatement or study so that it is subject to independent scrutiny and report135 allowingfor public as well as agency appraisal.

131 Fisher, p 17.

132 Bates, p 181.

133 Fisher D, p 17.

134 Bates, p 181.



The Adequacy of the Environmental Impact Assessment or EnvironmentalImpact Statement

Even if the scoping process has been adequate, the effectiveness of theenvironmental impact assessment is still dependent on the adequacy of theenvironmental impact statement if required. This in turn depends on the objectivityand independence of the environmental assessment that is conducted to prepare thereport or statement, which is discussed above, as well as the quality of any scientificanalysis required by the scoping process.136

Sanders has considered the inadequacy of scientific data as creating problems ofindependence within the environmental impact assessment system. He identifies thefollowing problems

• The gathering of ‘scientific’ data is not necessarily objective because the availableresources to do the work are almost always constrained. Decisions have to bemade early in the process about the level of effort necessary for each aspect of thework and these can profoundly influence the quality of the research.

• The augmentation of EIA with emerging areas like cultural heritage, social impactand even economics means that objective ‘scientific’ benchmarks are simply notavailable in many cases.

• There is a lack of baseline data against which to judge the environmental impacts.

• EIA involves the balancing of values - even in the EIS preparation itself. The textbooks would like us to believe that this is a matter for decision makers, but thepressure is always on the consultant to come up with a public document whichjustifies a position - whether or not it is in favour of the project. Clients (andother stakeholders) want more than a mere tabling of all the impacts and all thebenefits of a particular proposal.

• Commercial arrangements between the client and the author of the EIS usuallybegin with a tendering process to select a consultant. Consultants who wish tostay viable need to tender at the best possible price which meets the brief.Inadequate briefs lead to inadequate EISs. Some clients will accept options forenhanced products, but this is unusual.

• It is almost always true that the more research that is done, the more significantthe findings. In many cases, extended fauna surveys will reveal animals andassociations which were at least unexpected, and possibly uncover rare andendangered species.

• Deadlines are usually tight and restrict the quality of work done. This isparticularly so for issues like social anthropology and fauna assessment.

• The consultant may lack the expertise to assemble adequate documentation. EISsare sometimes commissioned on the basis of expertise in the design of specific

136 James, p 82; Ramsay & Rowe, p 508.


projects (such as tourist resorts) without necessarily ensuring the consultant hasthe best environmental assessment skills.137

The poor quality of the scientific analysis in many investigations has often beenattributed to restrictions on cost and time.138 Bates suggests that “environmentalassessments are frequently not undertaken over a time frame within which it ispossible to undertake satisfactory research or gather sufficient data to makereasonable and informed predictions.” It is also suggested that a brief study willonly present a static view “whereas what is needed for adequate impact predictionis a recognition that natural systems are, in fact, not static but dynamic.”139 Theestablishment of regional data bases and systems analysis has been suggested as oneway of overcoming this problem,140 however, the incorporation of environmentalimpact assessment much earlier in the planning process (if not in the design stage)would be a more pro-active solution.

8.2.4 Effectiveness and Accountability of the Environmental ImpactAssessment Process.

The environmental impact assessment process in Australia has been criticisedgenerally as “ineffective in terms of the net improvements to environmentaloutcomes”.141 The reasons for this include the problems outlined above as well asthe lack of quality in the review of any report, ie the actual assessment of anyenvironmental impact. This lack of quality of review may be due to the lack of clearlegislative accountability for the quality of the process and its outcomes. Who isresponsible to ensure that the process achieves the objectives and how is thisenforced?

Sanders has pointed out that most of the problems in accountability come about inpublic sector developments because of the scale of projects and the nebulouslegislation which regulates the process (ie the State Development and Public WorksOrganization Act 1971). It is also in this area that the lead agency will have a

137 Sanders, p 4.

138 Weir, p 411; Fisher, p 17.

139 Bates, p 185.

140 James, p 86.



concurrent role as a proponent, or at least a co-proponent, and in this case, hesuggests, will be more concerned with the process and not necessarily outcomes.142

Weir has made similar criticisms in relation to the process under the LocalGovernment (Planning and Environment) Act 1990 stating

The effectiveness of an environmental impact assessment is dependent on theexpertise and level of funding of the reviewing body. Currently, review by theDepartment of Housing and Local Government is restricted to whether theindividual matters raised in the terms of reference have been dealt with in theenvironmental impact statement. In this sense the department fulfils a role ofprocess manager rather than dealing with the correctness or scientific integrity ofthe environmental impact statement. The department relies on theprofessionalism of the environmental consultants to ensure the quality of suchdocuments. This confirms the tendency to emphasise form over substance.143

Similar problems have been described within the Brisbane City Council where, it issuggested, the town planning process, in terms of resources, tends to concentrate onthe assessment phase, the approval system “being seen as a ‘hoop’ to jump throughrather than an ongoing system”.144

The law has been described as a primary instrument of accountability with thegeneral public having “a tertiary audit role”.145 The public’s role in this area isseverely restricted by the lack of mandatory public consultation at all stages of thesystem and its lack of statutory power. It has been suggested that

No Australian environmental impact assessment regime gives an environmentminister or agency a right to determine the outcome of a licensing applicationmade to another agency. The most that the environment agency can do isrecommend against the grant of the licence.146

The problem with the law as an instrumentality of accountability is that there arelimitations as to the way in which the objects of environmental impact assessmentcan be legally enforced. An environmental management plan recommended by the

142 Sanders, p 9.

143 Weir, p 411.

144 I Christesen, ‘Approval and Beyond - A Regulator’s Perspective’, Sudden Impact: FutureAssessment, A seminar on the present and future of impact assessment in Queensland, 20August 1996, Environmental Defenders Office (Qld) Inc, Brisbane, p 1.

145 Sanders, p 8.



environmental impact assessment process is, of itself, of no legal consequence.147

Only if the objects of this plan are incorporated as conditions to some instrumentsuch as a lease or permit (eg under the Mineral Resources Act 1989) can there beany enforceability. However, the substance of the decision making process itself, ingetting to this stage, is mainly beyond such accountability.

Judicial review of certain of the decisions is possible, however the capacity forjudicial review falls between the amount of discretion versus the amount ofprescription in any statutory provision. Discretion tends to reduce the potentialityfor judicial review and prescription tends to enhance the potentiality for judicialreview. Professor Douglas Fisher has suggested that what is needed in anystatutory environmental impact assessment regime is a balance between flexibility torespond to particular circumstances on the one hand and predictability and certaintyas preconditions for enforcement on the other hand. He has stated that

The achievement of such a balance is perhaps one of the major challenges forthose formulating a new environmental impact process in Queensland. 148

147 Fisher, p 18.

148 Fisher, p 19.


BIBLIOGRAPHY

MONOGRAPHS

• Bates G M, Environmental Law in Australia, Butterworths, Sydney, 1995.

• Duncan W D, Planning and Environment Law in Queensland, TheFederation Press, Brisbane, 1993.

• Fitzgerald G E, (Chairman), The Report of the Commission of Inquiry intothe Conservation, Management and Use of Fraser Island and the GreatSandy Region, May 1991.

• Ramsay R & Rowe G C, Environmental Law and Policy in Australia,Butterworths, Sydney, 1995.

• Office of the Coordinator-General, Queensland Premier’s Department,Impact Assessment in Queensland - Policies and AdministrativeArrangements, January 1987.

AGREEMENTS

• Intergovernmental Agreement on the Environment, 1992.

MINISTERIAL SPEECHES

• Hon R Hinze, MLA, Integrated Resort Management Bill Second ReadingSpeech, Queensland Parliamentary Debates, 31 March 1987, pp1062 -1063.

CASES

• Bailey v Forestry Commission of New South Wales (1989) 67 LocalGovernment Reports of Australia, 200.

• Dall v Johnstone Shire Council and Northern Meat Holdings Pty Ltd, 1995,Queensland Planning Law Reports, 189.

• Harrison and Genery v Caboolture Shire Council and others, Unreported1996, Planning and Environment Court, Brisbane, per Quirk DCJ.

• Hillcorp Pty Ltd v Logan City Council, Unreported, P & E No 195 of 1992.

• Murphy and Cove House Aust Pty Ltd v The Crown (1990) 68 LocalGovernment Reports of Australia, 286.

• Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1.

• Queensland v Murphy (1990) 95 Australian Law Reports, 493, per MasonCJ, Brennan, Deane, Gaudron, and McHugh JJ.

• Sabdoen Pty Ltd v Redland Shire Council (1989) QPLR 149, at p 150.

• Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LocalGovernment Reports of Australia, 21.


LEGISLATION - QLD

• Canals Act 1958

• Electricity Act 1994

• Environmental Protection Act 1994

• Integrated Resort Development Act 1987

• Land Act 1994

• Local Government Act 1936

• Mineral Resources Act 1989

• Sanctuary Cove Resort Act 1985

• State Development and Public Works Organization Act 1971

• State Development and Public Works Organisation Act 1938

• Water Resources Act 1989

LEGISLATION - COMMONWEALTH

• Environment Protection (Impact of Proposals) Act 1974.

JOURNAL ARTICLES

• Brown A L & McDonald G T, ‘From environmental impact assessment toenvironmental design and planning’ Australian Journal of EnvironmentalManagement, 2(2), June 1995, pp 65-77.

• Carbon B, ‘EIA - An overview’, Australian Journal of EnvironmentalManagement, 2(2), June 1995, pp 62-64.

• James D, ‘Environmental impact assessment: Improving processes andtechniques’ Australian Journal of Environmental Management, 2(2), June1995, pp 78-89.

• Kelly G, ‘Commonwealth legislation relating to environmental impactstatements’, Australian Law Journal, 50(10), 1976, pp 498-512.

• Munchenberg S, ‘The review of the Commonwealth EIA process’,Australian Environmental Law News, No 3, Sept/Oct 1995, pp 50-55.

• Raff M, ‘The renewed prominence of environmental impact assessment: Atale of two cities’, Environmental Planning and Law Journal, 12(4), 1995,pp 241-263.

• Richardson B J & Boer B W, ‘Federal public inquiries and environmentalassessment’, Australian Journal of Environmental Management, 2(2), June1995, pp 90-103.

• Weir M J, ‘Putting the environment into the Queensland Local Government(Planning and Environment) Act, Environmental and Planning LawJournal, 11(5), 1994, p 409-418.


NEWS ITEMS

• Taylor L, ‘Cabinet overhauls green laws’, Australian Financial Review, 26November 1996, p 1.

SEMINAR PAPERS

The following papers are from Sudden Impact: Future Assessment, A seminar onthe present and future of impact assessment in Queensland, 20 August 1996,Environmental Defenders Office (Qld) Inc, Brisbane.

• Christesen I, ‘Approval and Beyond - A Regulator’s Perspective’.

• Dale A, ‘The Section 9 Syndrome: Terms of Reference and Social Aspectsof Impact Assessment’.

• Innes A, ‘Enforcement Related Matters’.

• Fisher D, ‘Environmental Impact Assessment Law In Queensland: AChallenge for the Future’.

• Hunt D, ‘Independence and Accountability of Impact Assessment inQueensland’.

• Sanders N, ‘Independence and Accountability in EIA: One Step Forwardand Two Steps Backward?’

• Stock E, ‘Context, Content and Responsibility in Setting Guidelines inImpact Assessment’.


APPENDIX A

Schedule 3 of the Intergovernmental Agreement on the Environment, 1992 whichrefers to Environmental Impact Assessment.

1. The parties agree that it is desirable to establish certainty about the application,procedures and function of the environmental impact assessment process, toimprove the consistency of the approach applied by all levels of Government, toavoid duplication of process where more than one Government or level ofGovernment is involved and interested in the subject matter of an assessment andto avoid delays in the process.

2. The parties agree that impact assessment in relation to a project, program orpolicy should include, where appropriate, assessment of environmental, cultural,economic , social and health factors.

3. The parties agree that all levels of Government will ensure that theirenvironmental impact assessment processes are based on the following:

(i) the environmental impact assessment process will be applied toproposals from both the public and private sectors;

(ii) assessing authorities will provide information to give clear guidance onthe types of proposals likely to attract environmental impact assessmentand on the level of assessment required;

(iii) assessing authorities will provide all participants in the process withguidance on the criteria for environmental acceptability of potentialimpacts including the concept of ecologically sustainable development,maintenance of human health, relevant local and national standards andguidelines, protocols, codes of practice and regulations;

(iv) assessing authorities will provide proposal specific guidelines or aprocedure for their generation focused on key issues and incorporatingpublic concern together with a clear outline of the process;

(v) following the establishment of specific assessment guidelines, anyamendments to those guidelines will be based only on significant issuesthat have arisen following the adoption of those guidelines;

(vi) time schedules for all stages of the assessment process will be set earlyon a proposal specific basis, in consultations between the assessingauthorities and the proponent;

(vii) levels of assessment will be appropriate to the degree of environmentalsignificance and potential public interest;

(viii) proponents will take responsibility for preparing the case required forassessment of a proposal and for elaborating environmental issues which


must be taken into account in decisions, and for protection of theenvironment;

(ix) there will be full public disclosure of all information related to a proposaland its environmental impacts, except where there are legitimate reasonsfor confidentiality including national security interests;

(x) opportunities will be provided for appropriate and adequate publicconsultation on environmental aspects of proposals before theassessment process is complete;

(xi) mechanisms will be developed to seek to resolve conflicts and disputesover issues which arise for consideration during the course of theassessment process;

(xii) the environmental impact assessment process will provide a basis forsetting environmental conditions, and establishing environmentalmonitoring and management programs (including arrangements forreview) and developing industry guidelines for application in specificcases.

4. A general framework agreement between the Commonwealth and the States onthe administration of the environmental impact assessment process will benegotiated to avoid duplication and to ensure that proposals affecting more thanone of them are assessed in accordance with agreed arrangements.

5. The Commonwealth and the States may approve or accredit their respectiveenvironmental impact assessment processes either generally or for specificpurposes. Where such approval or accreditation has been given, theCommonwealth and the States agree that they will give full faith and credit to theresults of such processes when exercising their responsibilities.


Appendix B

• Taylor L, ‘Cabinet overhauls green laws’, Australian Financial Review,26 November 1996, p 1.

Copyright Provision: Copy recorded for Parliamentarians only.

Disclaimer: No responsibility is taken for any transmission errors

Title Cabinet overhauls green laws.

Author TAYLOR, LENORE

Source Australian Financial Review

Date Issue 26/11/96

Pages 1 Federal Cabinet yesterday

approved a sweeping revamp ofenvironmental law designed tosimplify the way business securesenvironmental approval for aproject.

This would be done by removingduplication and overlap fromFederal and

State environmental regimes,ensuring projects had to satisfy justa single set of regulations.

The plan, developed by theMinister for the Environment,Senator Robert Hill, would give theFederal Government discretion overall projects of national significancefor the environment or for theeconomy, but would remove theCommonwealth from less importantdecisions.Senator Hill must nownegotiate details of the plan with theStates at the Council of AustralianGovernments meeting next year,with the rewrite of all Federalenvironment law to be completed bythe end of next year.

The Government's plans werewelcomed by business groups lastnight, but environmentalists areworried that the process couldconceal a watering down ofenvironmental safeguards.

Senator Hill insisted this wouldnot be the case.

"It won't lead to lowerstandards," he said yesterday.

"We want to put in place asystem where those involved indevelopment know what the rulesare, whether they have to dealwith the Commonwealth or theState.".Projects will beconsidered to have nationalenvironmental significance if theyinvolve international treatyobligations, cross State borders,would affect national parks orendangered species or involve"nuclear matters".

These projects will beconsidered by the FederalMinister for the Environmentand will usually be assessed bythe relevant State Governmentprocess, recognised by theCommonwealth, if the statesagree to accept the plan.

The Commonwealth will alsohave the discretion, but not anobligation, to scrutinise projectswhich involve a big investment,but are not of nationalenvironmental significance.

Final decisions are likely to bemade by the EnvironmentMinister,

unless there is a chance theproject will be blocked, in whichcase it is likely to go to the fullCabinet.

This increases the power of theMinister, who now only makesrecommendations to other ministersor Cabinet.

"Basically what we are on aboutis to replace the old andinappropriate trigger mechanismswith a more relevant environmenttest," Senator Hill said.

"A matter gets triggered now by awhole series of things - foreigninvestment approval, export permits- but unless it gets triggered theCommonwealth is not involved evenin big environment issues, and on theother hand a whole lot of relativelyminor things get triggered as well.

This means the significantenvironmental event is the triggerrather than something unrelated tothe environment.".

The Environment Protection(Impact of Proposals) Act,governing environmental impactassessments, would have to betotally rewritten.

Asked for examples of projects ofnational environmental significance,Senator Hill said the Franklin Damwould have national environmentalsignificance because of its worldheritage listing, but all dams wouldnot; that pulp mills would notautomatically qualify asenvironmentally significant, but theCommonwealth would probablyhave an option to be involved in pulpmill approval because of theireconomic significance.

As for the controversial CenturyZinc mine in Queensland, "the mineitself might not qualify for examplebut the transportation ...or issues todo with offshore dredging may".

The executive director of theNational Association of ForestIndustries, Dr Robert Bain, saidgetting rid of foreign investmentand export triggers was a goodthing.

He said he would judge therest of the plan by the extent towhich the

Commonwealth removed itselffrom detailed environmentaldecision-making.

The assistant director of theMinerals Council of Australia,Mr Ian Satchwell, said thecouncil would have to examinethe details.

The Australian HeritageCommission is already reviewingits operations to remove itselffrom all but "national" heritagelistings - a move that will dovetailwith the revamp of the rest ofenvironmental law.

THE NEW REGIME.

* Commonwealth must assessall projects of nationalenvironmental

significance.

* Commonwealth can assessprojects of national economicsignificance.

* Remove all existing legaltriggers for Commonwealthassessments.

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