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In specifying the procedures and requirements for an EES, the Minister will determine the form and extent of the public review for an EES. The public review process will include:
- public notice of the EES
- exhibition of the EES for a specified period; and
- receipt of public submissions.
The Minister may also specify the intended form of an inquiry, if one is to be held.
What is the procedure for public notice?
The EES will be exhibited generally for a period of 30 business days but in exceptional circumstances the Minister may decide that a longer period of exhibition is warranted. The proponent is required to give public notice of the exhibition and invite submissions on the environmental effects of its proposed project. Notice will be via an advertisement, paid for and placed by the proponent, in one daily newspaper and in one or more local papers for a regional project, or via some other means as agreed with the department. The notice must be in a form acceptable to the department and include details of:
- the proponent and project
- the location of exhibited material; and
- how and when submissions should be made.
The exhibited EES should be easily accessed by the public, typically by digital means downloadable from the proponent’s website, and may be made available in a web-based interactive version to the satisfaction of the Minister. The department may also specify the proponent place copies of the EES at specified locations and/or make copies available for purchase. Prices for the EES main report and appendices should be set at a level to enable effective access by interested parties. Copies of the EES summary are to be made available by the proponent free-of-charge.
If advertising the EES coincides with applications for statutory approvals, joint advertising will be coordinated. The form of any joint notice, as well as the period and locations of document exhibition, should satisfy the requirements of the EES process.
What should the scope of submissions be?
Written submissions in response to an EES should document comprehensively all the views and information the submitter considers relevant to the assessment of a proposal. Some forms of inquiry may allow limited opportunities for submission of further information. If an EES is jointly advertised with applications for statutory approvals (for instance a draft planning scheme amendment), only one submission is needed to address all views about the EES and the applications. Organisations, or groups of individual submitters with similar issues are encouraged to provide a combined submission. If a petition or pro-forma submissions are received, they will be treated as a single submission.
Government agencies should make a submission to assist the coordinated assessment and decision-making for a proposal, specifically in relation to the technical adequacy and policy alignment of the EES documentation.
How are submissions treated?
Submissions should be received by the advertised closing date. They will be treated as public documents. Submissions and supporting documents will be available to the department, persons responsible for the conduct of an inquiry, the proponent, stakeholders and the public; they may be published online.
In exceptional circumstances, a request may be made to the inquiry for a submission or parts of a submission to be treated as confidential (for
instance, for reasons of commercial confidentiality or cultural sensitivity). Such requests will be considered having regard to procedural fairness to other inquiry participants.
If statutory approval applications have been jointly advertised with the EES, the department will put in place arrangements for coordinated receipt and circulation of submissions with the relevant agencies.
How should the proponent respond to public submissions?
To assist in the resolution of issues raised during exhibition, a proponent should produce a document responding to issues raised in submissions (or otherwise through the consultation process). The responses should be provided to the Minister if an inquiry has not been appointed. If an inquiry has been appointed, the documented responses to submissions will be provided as part of the inquiry process. In circumstances where a proponent seeks to negotiate a resolution to issues (for example, mitigation measures), negotiation should take place prior to the commencement of any inquiry, if possible.
How will submissions be considered?
The Minister may choose to appoint one or more persons with relevant expertise to conduct an inquiry into a proposal’s potential environmental effects, by considering the EES, submissions received and proponent responses. The Minister may decide in-principle whether to appoint an inquiry, as well as the intended form of inquiry, at the time of deciding that an EES is required. When the Minister decides to appoint an inquiry, options for the form of inquiry include:
- written submissions
- submitter conference; or
- public hearing.
The Minister will set the terms of reference for an inquiry. An inquiry that is hearing submissions can be conducted in person, or by online video conference, or in a hybrid format (both in person and online). An inquiry will provide the Minister with a written report of its findings and recommendations, for consideration by the Minister in making an assessment. All costs of the inquiry, including the costs of obtaining any expert advice, technical administration and legal support, venue hire, accommodation, recording proceedings and other costs need to be met by the proponent.
Inquiry by written submissions
The Minister may decide to appoint one or more persons to conduct an inquiry based on the written submissions to an exhibited EES, without a hearing or presentation of further information by submitters or expert witnesses. The Minister might choose this approach where the project and EES do not raise complex or contentious issues that would benefit from further public input or need further elaboration or expert witness statements from submitters, or where a small number of submissions is received and no submitter wants to be heard in relation to their submission.
Inquiry by submitter conference
The Minister may invite submitters to attend a submitter conference to enable the issues raised in submissions to be explored by an inquiry, together with the proponent and submitters who want to participate. It may include government agencies. Submitters may ask the proponent questions of clarification through an appointed chairperson. It may provide an opportunity for the proponent and submitters to seek a resolution on some issues. Where appropriate, an inquiry may hold a directions hearing before a submitter conference to provide information and directions on how the submitter conference will proceed. Conferences would not normally allow for presentation of further evidence or expert witnesses in support of a submission.
Inquiry by public hearing
An inquiry by public hearing will generally be warranted for an EES. Public hearings allow proponents to speak about their proposal and
submitters to speak about their submissions in-depth. The hearings are to be exploratory and constructive. They will be conducted in an open and equitable manner, consistent with the principles of natural justice, with a minimum of formality and without the need for legal representation. Expert witnesses may present evidence and be cross examined or asked questions of clarification by other parties or inquiry members, as regulated by the inquiry chair.
Where appropriate, an inquiry conducting a public hearing may convene a special session of parties to seek agreement about the nature of issues in dispute or preferred responses. The inquiry may also convene a special session of expert witnesses and other relevant persons (such as government agency or submitter representatives) to establish a shared understanding of technical matters and establish and record the facts and opinions in agreement and disagreement.
An inquiry by public hearing will normally be appointed where a similar process is required under another Act (such as the Planning and Environment Act 1987) for the proposal being assessed. A joint or combined advisory committee/panel/inquiry process will be undertaken. If necessary, the terms of reference for the inquiry under the Environment Effects Act will be adjusted to reflect the statutory requirements of the other process.
When will the report of any inquiry be released?
The report of any inquiry will normally be released at the same time as the Minister’s assessment.
Page last updated: 01/12/23