The bilateral agreement avoids duplication of assessment processes, by allowing Victoria to assess proposals that the Commonwealth has determined as controlled actions, likely to have a significant impact on the environment.
What is the bilateral agreement?
Victoria and the Commonwealth have agreed to a new assessment bilateral agreement (DOCX, 734.1 KB).
The 'Bilateral agreement made under section 45 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) relating to environmental assessment' was signed by the Commonwealth and Victorian governments in October 2014, with a commencement date of 31 December 2014.
The purpose of the agreement is to avoid duplication of assessment processes, by allowing Victoria to assess proposals that the Commonwealth has determined as 'controlled actions' that are likely to have a significant impact on the environment. The Commonwealth will still make the approval decision under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), relying on the assessment report prepared by the relevant Victorian decision-maker.
Frequently asked questions: Frequently Asked Questions (DOCX, 21.8 KB)
How is the bilateral agreement applied?
All proposals that are likely to have a substantial impact on a matter of national environmental significance (MNES) must still be referred to the Commonwealth under the EPBC Act, who must first decide whether the proposal is a controlled action.
The Commonwealth Minister will notify the relevant Victorian Minister of the controlled action decision who will, in turn, advise whether an accredited assessment process will apply.
For a controlled action where an accredited Victorian assessment process will apply (see pathways A-I listed below), information for State and Commonwealth assessment purposes can be aligned. This can avoid duplication and reduce overall assessment timelines.
At the completion of an accredited assessment process, the relevant Victorian Minister or agency will provide an 'Assessment Report' to the Commonwealth Minister on the likely impacts of the project on MNES, to inform the Commonwealth's EPBC approval decision.
See here for a summary of the EPBC Act and glossary of terms EPBC terms and glossary.
What are the accredited Victorian processes?
The bilateral agreement replaces the previous agreement and extends the range of accredited State processes to the following nine assessment pathways:
- Comprehensive Impact Statement under the Major Transport Projects Facilitation Act 2009
- Environment Effects Statement under the Environment Effects Act 1978
- Environmental Report under the Environment Effects Act 1978
- Advisory Committee under the Planning and Environment 1987
- Ministerial assessment of an action by the relevant Victorian Minister, in parallel with the permit application process undertaken by the responsible authority, under the Planning and Environment Act 1987
- Planning permit application process under the Planning and Environment Act 1987, where the relevant Victorian Minister is the responsible authority
- Works approval application process under the Environment Protection Act 1970
- Heritage permit application process under the Heritage Act 1995
- Approval under sections 36, 51 or 67 of the Water Act 1989
The relevant assessment pathway depends on the type of impact, its scale and the complexity of the issues.
The key advantage of accredited assessment pathways is that the often overlapping State and Commonwealth environmental assessment requirements will be addressed together, thus avoiding duplication and providing for alignment of related outcomes.
The attached diagram shows the alignment of EPBC assessment steps with each accredited Victorian pathway (PDF, 160.2 KB)
How and when may pathways apply?
This is the assessment process for major transport proposals established under Part 3 of the Major Transport Projects Facilitation Act 2009 (MTPF Act). When a proposal declared under the MTPF Act is both a controlled action and requires a Comprehensive Impact Statement (CIS), this accredited process will be applied such that it also includes an assessment of MNES.
Under the bilateral, public comments must be sought on the draft CIS scope (scoping directions) before being issued to the proponent to guide preparation of the CIS. The proponent then needs to assess MNES arising from the proposal through the preparation of the CIS, prior to exhibition and public review. At the end of the CIS process, the Victorian Minister for Planning issues an Assessment Report on the MNES to inform the approval decision required under the EPBC Act.
Further information on the CIS process can be found on the Major transport projects webpage.
The Environment Effects Statement (EES) process under the Environment Effects Act 1978 has been used as an accredited assessment process for Victorian projects since the commencement of the EPBC Act in 2000 and was formally established as a standing accredited process under the previous 2009 Victorian Assessment Bilateral Agreement.
When an EES is required, due to the potential for significant environmental effects, and the project is also a controlled action, the EES process encompasses assessment of MNES, which is set out through the EES Scoping Requirements. A draft scope for the EES is advertised, seeking public comment, before the final scope for the EES is issued to the proponent and published on this website.
At the end of the EES process, the Minister for Planning issues an Assessment of the project and its effects under the Environment Effects Act, including for the MNES. This is provided to Victorian statutory decision-makers as well as the Commonwealth Minister, to inform their decision-making/ approvals.
Further information can be found on the EES process webpage.
This accredited assessment process is applicable for a controlled action that also requires assessment under the Environment Effects Act through conditions set by the Minister for Planning (in lieu of an EES). When there is potential for specific significant environmental effect(s), the conditions will require targeted assessment and documentation (in the form of a report) to be prepared by the proponent, followed by a period of exhibition with the opportunity for public comment. Following public comment, the proponent revises their Environmental Report and provides it to the Victorian Minister for Planning, to inform the Assessment Report. The Minister's Assessment Report, which includes conclusions on the MNES and other relevant matters, is then provided to the Commonwealth Minister and, in most cases, the relevant Victorian decision-maker(s).
Further information can be found on the Environment Effects Act process webpage.
This route could apply for a controlled action that also needs to go through a planning scheme amendment process before a use, building or works can be considered for approval under Victorian law. If this pathway is identified as an appropriate process under the bilateral, the Minister for Planning will appoint an Advisory Committee, in consultation with the responsible authority and Planning Panels Victoria.
Appointed under the Planning and Environment Act 1987, the Advisory Committee will review the proponent's assessment of MNES, in addition to the proposed amendment to a planning scheme. Public submissions are invited on both of these considerations. When preparing its report, the Advisory Committee needs to examine matters relating to Victorian planning considerations, as well as separate MNES requirements set out in the bilateral agreement. The report is then provided to the Commonwealth Minister to inform decision-making under the EPBC Act.
This accredited assessment is undertaken in parallel with a planning permit application process under the Planning & Environment Act 1987. When a permit application is required, the proponent can undertake an assessment of MNES (as is required under the EPBC Act) that is aligned with the permit application process. This results in the Victorian Minister for Planning issuing an Assessment on the MNES to inform the Commonwealth Minister's approval decision under the EPBC Act. While the processes are aligned, the permit application itself remains as a standard process administered by the responsible authority – i.e. municipal council.
This option may be applicable for controlled actions that are a use, building or works requiring a planning permit under a planning scheme from a municipal council. The advantage of this accredited assessment pathway is that the planning permit application and EPBC assessment processes operate in concert, helping to avoid duplicated requirements.
If the complexity, scale or public interest is significant, this pathway may not be suitable, due to the potential to exceed available statutory time limits for the planning permit process. It is also not suitable for a combined planning scheme amendment and permit.
Successful implementation of this new accredited assessment pathway relies on cooperation and agreement between the proponent (the applicant) and the municipal council to follow this pathway.
The proponent will need to assess the MNES arising from the controlled action (proposal), prior to the Minister for Planning preparing and issuing the final Assessment to the Commonwealth Minister. The proponent's assessment of these matters is done in conjunction with the assessment needed to inform the planning permit application. The intention is for the Commonwealth approval decision relating to MNES under the EPBC Act to be finalised prior to the planning permit decision, to support more coordinated and certain decision-making.
There are no new requirements as such introduced for municipal councils as a result of this process, although there will be a need for additional liaison and discussion to align processes and share relevant information. Formal timelines and assessment processes for the planning permit process will not change.
This pathway applies in the limited circumstances where the Victorian Minister for Planning is the responsible authority for certain types of development and planning scheme areas, including:
- Alpine Resorts Planning Scheme (Mt Hotham, Falls Creek, Mt Buller, Mt Stirling, Mt Baw Baw and Lake Mountain)
- French Island and Sandstone Island
- Port of Melbourne Planning Scheme
When a permit application is required, the proponent can undertake an assessment of MNES that is aligned with the permit application process, which results in the Minister for Planning issuing an Assessment on the MNES to inform the approval decision under the EPBC Act, at the same time as issuing a decision on the planning permit.
The proponent will need to assess the MNES arising from the controlled action (proposal), prior to the Minister for Planning preparing and issuing the final Assessment to the Commonwealth Minister. The proponent's assessment of these matters is done in conjunction with the assessment needed to inform the planning permit application.
This route could apply for projects that are controlled actions that also require a Works Approval under the Environment Protection Act 1970 (i.e. when an EES or Environmental Report are not required under the Environment Effects Act) and the matters being examined through the Works Approval application overlap or correspond with the relevant MNES associated with the controlled action decision.
If this pathway is confirmed as an appropriate process under the bilateral, the process will be administered by the Environment Protection Authority (EPA), in consultation with this department.
Specific information on the Works Approval process and Environment Protection Act can be found on the EPA website.
This route could apply for proposals that are controlled actions that also require one of the following under the Water Act 1989:
- a licence to take and use water (section 51)
- a licence to construct, alter, operate, remove or decommission any works on a waterway or bore (section 67)
- an application for bulk entitlement (section 36)
This pathway could be a relevant accredited process when the controlled action (proposal) does not require an EES or Environmental Report under the Environment Effects Act and the matters being examined through the application under the Water Act overlap or correspond with the relevant MNES associated with the controlled action decision.
If this pathway is confirmed as an appropriate process under the bilateral, the process is undertaken by the Minister for Water's portfolio.
This pathway would only apply to development activities affecting values and places on the National Heritage List, as well as World Heritage values, that are also listed on the Victorian Heritage Register, and do not require a CIS, EES or Environmental Report.
Proponents should engage early with Heritage Victoria to discuss the likelihood of undertaking an accredited process. If accredited, the permit application and supporting documentation must include an assessment of the likely impacts on the relevant MNES. Once prepared to the satisfaction of Heritage Victoria, the application is advertised for public comment. The proponent must then take the public comments into account to revise their application, and submit the final documentation to Heritage Victoria, who will prepare an Assessment Report for the Commonwealth Minister's consideration and determination.