The following information was supplied by the Environmental Defenders Office (WA) Inc.

EDOWA Law Reform Alert

Proposed Changes to Environmental Laws will Remove Appeal Rights

Josie Walker, Principal Solictor, the Environmental Defenders office (WA) Inc

The government is proposing to make some significant changes to the environmental assessment and planning approvals system in Western Australia. The EDO believes that these changes will have a negative impact on environmental accountability and public participation in the planning and approvals system.

Changes to the Environmental Protection Act 1986 would remove the right for members of the public to appeal against levels of assessment for proposals which are likely to have a significant effect on the environment, provided the EPA has decided to formally assess the proposal. This is an important provision because if the level of assessment for a project is set too low, the impacts of a proposal are unlikely to be properly assessed. The EDO believes that the right of appeal against levels of assessment is just as important as the right of appeal against the EPA's report and recommendations on the proposal.

The changes would also take away the rights of objectors to appeal against the declaration that a project is a "derived proposal". If the EPA declares that a project constitutes a derived proposal, it is effectively saying that the impacts of a proposal have already been adequately assessed under a strategic assessment process, therefore the project itself does not require an environmental assessment. In our view this is a very significant
decision for the future determination of the project, which should be subject to public scrutiny.

There are also some important changes proposed to planning laws.

The most radical changes would see local government lose the power to determine larger-scale development proposals in their local area. The power to determine these development applications would be given to Development Assessment Panels ("DAPs") comprised of state government- appointed experts, with only a minority of local government representation.

The categories of development that will be subject to determination by DAPs are not known, because this and other important details are to be provided in the regulations which are yet to be released. The Discussion Paper released in September 2009 proposes that developments over the value of $1M, including commercial and industrial development, and residential developments comprising more than 10 dwellings should go to
DAPs.

The EDO is concerned that handing over these decisions to panels of experts will erode the community's power to influence important development decisions in their local area through their elected representatives.

Other amendments give the WAPC greater powers to make improvement plans for redevelopment of certain areas, including the power to make improvement schemes which would override local planning schemes. The Minister would also have the power to "call-in" and determine applications which are before the DAP which the Minister decides are "significant". Criteria for deciding what is a "significant" development are to be
contained in the regulations, which have not been released at this stage.

Bills to implement these changes were introduced into Parliament in late November 2009, and may be voted on when Parliament resumes in early 2010. The Approvals Bill has been referred to the Standing Committee on Uniform Legislation and Statutes Review.

Submissions to the Committee are due 5pm on Monday 11 January 2010.

The EDO will be actively engaging with government and stakeholders to ensure that there is a well-informed debate about the effect of the proposed amendments.

10 December 2009

The following file is the Hansard extract:  hansardextract.pdf 20.90 Kb