Australia: Environmental assessments for major projects

Last Updated: 14 August 2016
Article by Kathryn Pacey

Investing upfront in an outcomes-driven environmental assessment process will lead to better project approvals, and increased protection from successful legal challenges.

Major projects require a thorough environmental assessment in order to:

  • satisfy the regulator that proper account has been taken of the project's environmental impacts and benefits;
  • inform the community of the predicted impacts and how those will be measured and dealt with; and
  • secure all required approvals and consequently, funding for the project's delivery.

While it varies slightly between jurisdictions, an environmental impact statement (EIS) process generally involves:

  • an application to the relevant regulator to carry out an EIS;
  • terms of reference or guidelines;
  • submission, and subsequent publication notification, of the EIS;
  • a supplementary report or response to public submissions; and
  • evaluation and approval of the EIS.

Each state and territory has an "assessment bilateral" with the Commonwealth, whereby certain EIS processes meet the assessment requirements of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Separate approval is also required from the Commonwealth Minister under the EPBC Act.

An EIS process is both an expensive and time-intensive exercise, taking anywhere from 12 months to a number of years to complete. Before embarking on the process, it is important to identify the right approvals strategy, and know upfront the outcomes that are required from the EIS process. This will involve identifying:

  • assessment options;
  • community issues;
  • timeframes;
  • resources requirements; and
  • all required approvals for the project.

Do you need an EIS?

The first step is deciding whether a project should go through an EIS process. Sometimes, this is at the election of the proponent, and is not a mandatory requirement of the approvals process.

An application for an EIS is generally required that allows the decision-maker to determine if an EIS process is required or is suitable. This statement should describe the proposed project and provide an overview of the likely environmental effects. It must also contain enough information to allow the regulator to determine whether an EIS process is appropriate. The detail between applications varies, but things to consider include:

  • ensuring sufficient flexibility in the description of the project to accommodate likely changes;
  • comprehensively identifying key stakeholders, including landowners likely to be affected; and
  • identifying the proponent for the project, and ensuring that the proponent is a real legal entity.

Terms of reference or guidelines

The terms of reference set out the matters that must be addressed by the EIS and is a critical document. Often, the terms of reference are not given proper attention, which can have significant consequences for the scope of studies required, as well as timeframes and costs of assessment. While many regulators have developed standard terms of reference, these should always be critically reviewed to ensure that:

  • Compliance with the terms of reference is reasonable.
  • The requirements are proportionate and relevant to the likely environmental impacts and risks of the project.
  • It is actually possible to comply with the terms of reference — in many statutes, non-compliance with the terms of reference can cause issues for acceptance of the EIS and compliance with statutory processes.

Terms of reference generally will proceed through a public consultation process, and submissions from government agencies and the public will need to be responded to.

Submission of the EIS and public notification

Preparation of an EIS is a time-intensive exercise. Depending on the terms of reference, it may require a number of seasonal studies to be undertaken.

Most legislation contains timeframes for submission of the EIS, which must be monitored closely. Once submitted to the regulator, the EIS will be checked for compliance with the terms of reference prior to public notification.

If there are any areas of uncertainty or impacts identified following an impact assessment study, the application material should identify these and propose solutions. Any identified potential impacts may be able to be managed through a regime of further studies, monitoring and corrective actions and review.

The EIS will then proceed through a public notification process, and the project proponent generally provided with public submissions for response.

The critical outcome of the EIS process is the imposition of project conditions, which can determine whether the project is feasible or likely to proceed. For this reason, the EIS needs to be set up with those end conditions in mind.

Substandard EIS documentation can lead to:

  • the need to repeat public notification processes;
  • increased public submissions or increased complexity of submissions that need to be responded to;
  • a lack of confidence by the regulator, requiring the provision of additional information or a peer review of documents;
  • more complex conditions imposed on the project.

Response to submissions

The regulator will need to be able to demonstrate that each of the submissions received have been considered. The most efficient way to manage this aspect of the process is to create a "Response to submissions" document that outlines in detail how each of the issues raised in the submissions have been responded to.

Getting and communicating the project approval

An approval in an important communication to the broader community of the scope of the development permitted. Depending on the particular regime, an approval can do one or more of the following:

  • authorise the particular works or development to proceed;
  • define the works or development;
  • constrain or refuse parts of the development; or
  • authorise impacts caused by the development (including providing statutory defences to impacts).

Legal challenges

The best protection an EIS applicant has against a challenge to a decision-maker's process is to ensure the documents respond to the fullest extent possible to the decision-making criterion. This criterion will not always match the application requirements; however, it is crucial to show that the decision-maker had all the information required for the decision-making process. Poor applications also increase the risk of a successful legal challenge either to the merits of the application (where allowed) or to the validity of the decision-making process for the application. Decisions made under the EPBC Act can be subject to challenges by judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Many state decisions are subject to its local equivalent.

If the application is well-drafted and the EIS process has been followed, these risks are significantly reduced. As part of preparing and thoroughly executing the approvals strategy, the risk of legal challenge should always be borne in mind, with documents critically reviewed to minimise that risk. Community consultation and strong stakeholder management will also assist here. Ultimately, while it can be tempting to save costs upfront on an EIS process, the end result should be kept in mind. Short cuts can lead to a protracted process, creating additional work to get the process to completion. Key performance indicators given to EIS consultants through procurement should take into account the longer-term view.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions