Victoria is blessed with an amazing natural landscape that’s home to a diverse range of rare animals, plants and birdlife. There are mountains, forests, lakes, rivers as well as the magnificent coastline and marine environment.

At the same time, Victoria has a growing population. This population needs housing, energy, water, industry and other infrastructure – all of which can harm the environment. So how do you balance these land-use requirements with environmental protection?

Enter the Environmental Impact Assessment (EIA).

But what’s a EIA and what does it have to do with an Environment Effects Statement (EES)?

Environmental Impact Assessment

An EIA is a statutory tool used to evaluate the environmental impacts of any proposed development. It was first legislated in Australia in the Environment Protection (Impact of Proposals) Act 1974, with the Victorian Environmental Effects Act following in 1978.

In Victoria, EIAs are conducted through the EES process.

The EES process

The EES process is used early in a project’s planning and design phases to consider the likely environmental, social and economic effects should it go ahead. It’s complex, time-consuming and has significant cost-implications for a project.

The stages of the process are:

  • Referral – identifying which projects might be subject to an EIA
  • Screening – deciding whether a referred project should be subject to an EIA
  • Scoping – working out what the EES should cover
  • Preparation of the EES – typically the longest stage
  • Review – the EES statement is published for public comment
  • Assessment by the Minister of Planning – taking into account the developer’s EES and the views of the public
  • Final decision

Public participation is a vital part of the EES process, as the local community that will be impacted needs to have their voices heard in the decision-making process.

The EES process is not an approval process. Rather, it gives municipal councils and other decision-makers the information they need to determine whether planning approval should be granted and, if so, under what conditions.

So while you might get a green light from the minister for your proposed development, municipal councils are under no obligation to accept this recommendation.

What is in an EES?

While every EES will be different, they typically contain:

  • A description of the proposed development and the existing environment
  • Details of any public and stakeholder consultation undertaken, including any issues raised
  • Predictions of any significant environmental effects of the project
  • Alternative development options (if any)
  • Mitigation or management strategies to reduce adverse environmental effects

Do you need an EES?

The Environmental Effects Act (EEA) 1978 applies to any proposed project that’s capable of having a ‘significant’ effect on the regional or state environment.

But what does ‘significant’ mean? As the EEA doesn’t go into any detail, you need to look to the Ministerial Guidelines for answers.

These guidelines state that referral criteria include the potential:

  • Ten hectares or more of native vegetation classed as endangered or with a high conservation significance will be cleared
  • Long-term loss of a significant proportion (1% to 5% depending on the species) of the known remaining habitat or population of a threatened species within Victoria
  • Greenhouse gas emissions exceeding 200,000 tonnes of carbon dioxide per year, directly attributable to the facility
  • Extensive or major effects on the health, safety or well-being of a human community, due to pollution, chemical hazards or displacement

As you can see, the bar is set high. As a result, few projects meet this threshold with, on average, only two or three developments going through the EES process every year.

Freya Southwell is the lead property lawyer at Sutton Laurence King Lawyers.

Property development can be profitable if you get it right, but disastrous if you get it wrong. So get legal advice up front. Contact Freya on 03 9070 9810 or frs@slklawyers.com.au for help.