Determining the need for a referral

Where a new or amended project could reasonably be expected to have the potential for a significant effect on the environment, the proponent or a decision-maker needs to ask the Minister whether an assessment is required. A proponent or decision-maker can refer a project as soon as sufficient information is available to identify the potential for significant environmental effects. For a decision-maker, this may not be possible until a proponent submits an application. In either case, early engagement with the department (the department responsible for administering the Environment Effects Act on behalf of the Minister for Planning), well ahead of a referral or statutory application, is important and will help proponents and decision-makers determine the most appropriate timing for a referral (Figure 2).

Figure 2: Referral process under the Environment Effects Act

The individual and combined referral criteria shown in Table 1 assist in identifying the significance of a project’s potential effects in a regional or state context and inform whether a referral is required. Proponents are encouraged to undertake a thorough self-assessment against the referral criteria. The identification of potential significant effects, and subsequent requirement for referral, does not mean that an assessment will necessarily be required.

A project should be referred in its entirety wherever possible, including ancillary (offsite but essential) works or later project stages essential to the project’s operation. Specific ancillary works or later stages of a project would need only be identified rather than described in detail within a referral if:

• only broad project options have been identified, and future investigations will assess these to establish a detailed project proposal; or
• the ancillary works have yet to be planned in any detail but are unlikely to contribute to potentially significant adverse effects of the project, or are not primarily for the purpose of the referred project; or
• later project stages have yet to be planned in any detail and are not essential for the operation and viability of earlier project stages and are unlikely to contribute to any potentially significant (cumulative) effects.

A project proposal that has been modified and has the potential for new or additional significant effects on the environment should be referred, regardless of whether the original project was referred or assessed under the Act.

Separately, an EES must be prepared when the Minister declares a project to be ‘public works’ with the potential for significant environmental effects under section 3(1) of the Act. The Minister’s decision on whether to declare a project to be ‘public works’ subject to assessment is informed by a project outline prepared by the public proponent. The project outline should include its strategic context, an overview of the project, a summary of key relevant legislation and policy, a preliminary identification of potentially significant environmental effects, an overview of areas for further investigation and  stakeholder engagement, and a preliminary environmental management framework.

Table 1: Referral criteria

Individual referral criteria

Individual types of potential effects on the environment that warrant referral of a project

• Potential removal, destruction or lopping of 10 hectares or more of native vegetation (native vegetation is defined in the Guidelines for the removal, destruction, or lopping of native vegetation (Department
  of Environment, Land, Water and Planning, 2017)), that consists of, or comprises a combination of:
  • an ecological vegetation class (EVC) classified as endangered; or
  • an EVC that is classified as vulnerable (with a condition score of 0.5 or more) or rare (with a condition score of 0.6 or more); and
  • that is not authorised for removal under an approved forest management plan (forest management plan defined as an approved working plan under section 22 of the Forests Act 1958) or fire protection plan.
• Potential clearing of an area determined as ‘critical habitat’ under the Flora and Fauna Guarantee Act 1988.
• Potential for loss of a significant proportion (for example, 1 percent or greater) of known remaining habitat or population of a threatened species within Victoria.
• Potential for long-term change to the ecological character of a wetland listed under the Ramsar Convention or in A Directory of Important Wetlands in Australia.
• Potential for extensive or major effects on the use and environmental values of water resources due to changes in water quality, water availability, stream flows, water system function, or regional groundwater levels, or the health or biodiversity of aquatic, estuarine or marine ecosystems, over the long term.
• Potential for extensive or major effects to human health or the environment, or displacement of residents, from pollution or waste emitted to air, land, water or groundwater.
• Potential for greenhouse gas emissions exceeding 200,000 tonnes of carbon dioxide equivalent per annum (direct and indirect) attributable to the operation of the facility.

Combined referral criteria

A combination of two or more types of potential effects on the environment that warrant referral of a project.

• Potential removal, destruction or lopping of 10 hectares or more of native vegetation (native vegetation is defined in the Guidelines for the removal, destruction, or lopping of native vegetation (Department of Environment, Land, Water and Planning, 2017)), unless it is authorised for removal under an approved forest management plan (forest management plan defined as an approved working plan under section 22 of the Forests Act 1958) or fire protection plan.
• Matters listed under the Flora and Fauna Guarantee Act 1988:
  • potential loss of a significant area of a listed ecological community; or
  • potential loss of a genetically important population of an endangered or threatened species (listed or nominated for listing), including from loss or fragmentation of habitats; or
  • potentially significant effects on habitat values of a wetland supporting migratory bird species.
• Potential for extensive or major effects on landscape values of regional importance, especially:
  • where recognised by a planning scheme overlay;
  • declared as a distinctive area and landscape under the Planning and Environment Act 1987; or
  • within or adjoining land reserved under the National Parks Act 1975.
• Potential for extensive or major effects to the environment due to changes in land stability, disturbance of acid sulphate soils or project induced soil erosion over the short or long term.
• Potential for extensive or major effects on social or economic well-being due to direct or indirect displacement of non-residential land use activities.
• Potential for extensive displacement of residents or severance of residents’ access to their community resources.
• Potential for significant effects on the amenity of a substantial number of residents, due to extensive or major, long-term changes in visual, noise and traffic conditions.
• Potential for extensive or major effects on Aboriginal cultural heritage values protected under the Aboriginal Heritage Act 2006.
• Potential for extensive or major effects on cultural heritage places and sites listed on the Victorian Heritage Register or the Victorian Heritage Inventory under the Heritage Act 2017.

Who refers a project to the Minister?

Formal referral of a project can be made by:

• a project proponent; or
• any decision-maker required by an Act or law to make a decision in respect of the project.

Typically, the proponent refers their project under the Act for a decision on the need for assessment. However, the Minister administering the Environment Effects Act can direct a decision-maker to refer a project where there is potential for a project to have a significant adverse effect on the environment. Ministers responsible for the administration of relevant approvals legislation can also direct decision-makers to refer a project. Referral of a project is not necessary if another party has already referred the project, or the decision-maker decides that the project approval should be refused.

When the Minister receives a referral, statutory decisions are typically put on hold until the Minister decides whether an EES, or some other assessment, is required.

What information should be submitted?

EES referrals should be submitted using the referral form. A proponent or decision-maker referring a project should provide the Minister with information about the matters described in Table 2. The Minister may require a decision-maker or proponent to provide additional information to assist in considering a referral.

Table 2: Referral particulars

Where a project is to be developed in stages, the referral should describe the:

• overall project strategy for delivery of all stages and components
• concept design or description for the overall project; and
• intended scheduling of the design and development of project stages.

Page last updated: 01/12/23