Are WA’s Law in Good Shape? Presenting the Environmental Impact Assessment in WA

On 6 June 2023, McLeod Fisher & Hamdorf presented at the Law Society’s Word Environment Day CPD Seminar: Are WA’s Law in Good Shape?’ on the legal framework of the Environmental Impact Assessment (EIA) in Western Australia.

EIA is the systematic assessment of the potential impact a development proposal has on the environment and (in Western Australia) is also applied to draft town planning schemes. The EIA process is provided for under the Environmental Protection Act 1986 (WA) (EP Act) and is administered by the Minister for Environment (Minister) and Environmental Protection Authority (EPA). The EPA assesses ‘significant’ or ‘strategic’ proposals and makes a recommendation to the Minister on whether a proposal should be implemented, and if so, whether it should be subject to any conditions.

The EIA process is impacted by the extensive body of applicable policy in Western Australia. The body of policy was reviewed in 2016 by the Independent Legal and Governance Review into Policies and Guidelines for Environmental Impact Assessments, and new procedures and policy manuals were created. An example of policy development is the Environmental Factor Guideline: Greenhouse Gas Emissions.

The five stages of the EIA process are:
I. referral – section 38 of the EP Act;
II. EPA decision on assessment – section 38G of the EP Act;
III. assessment of proposals – section 40(3) of the EP Act;
IV. the EPA report on the assessment – section 44(2) of the EP Act;
V. implementation of proposals – sections 44A, 45(11) and 45(12) of the EP Act.

The final determination in the EIA process is the decision made by the Minister authorising a decision making authority to make its own decision in respect of the proposal, subject to any conditions in a ‘Ministerial Statement’ or an ‘Implementation Agreement’.

Appeal rights in respect of decisions made by the EPA or the Minister, such as the proposal not being required to undergo an EIA, the content of the EPA’s report to the Minister or conditions and procedures in a Ministerial Statement, are provided for under Part VII of the EP Act. An Appeals Convenor will consider the appeal and then report to the Minister for determination. If an appeal is against a decision of the Minister, the Minister must appoint an appeals committee and then make a decision that aligns with the recommendations of the appeals committee. The only other option for an appeal or review process is judicial review in the Supreme Court.

The flexible instrument of policy, and some major statutory changes to the EP Act since the 1980s, have allowed the EIA process to adjust to changing circumstances in the modern world. Given the power of the EIA system in Western Australia, it is important that it remains fit for purpose and meets contemporary expectations.

There are some changes to the EP Act’s merits appeal system that could align it better with contemporary standards of transparency and procedural fairness, without necessarily revamping the entire EP Act or compromising the underlying statutory philosophy of Ministerial determinations. This alone could reduce the need for those dissatisfied with the content of an EPA report or a Ministerial decision to resort to judicial review.

Following the presentation, the paper was published in the Law Society’s Brief volume 50 number 3 (June 2023). If you would like a copy of this paper, please let us know.

If you would like more information on the EIA process, or assistance or advice in undergoing the EIA process, please contact us by telephone on (08) 6460 5179 or email at admin@mfhlaw.com.au