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chapter four

Environmental impact assessment*

Introduction
Environmental Impact Assessment (EIA) is a process for ensuring that decision-makers are informed of the environmental impacts of activities. EIA also seeks to allow the public to participate in the decision-making process and improve the quality of those decisions. In the ACT there are two EIA processes that may apply, one under ACT legislation, the other under Commonwealth legislation (see the second half of this chapter). Under Part 4 of the Land (Planning and Environment) Act 1991 (ACT) (Land Act) the definition of environmental impact (s.111) covers a wide range of potential impacts, including: effects on the physical, biological, cultural, aesthetic, recreational or scientific values of an area effects on social systems and ecosystems likelihood of endangered species or communities becoming further endangered likely problems of pollution and waste disposal. In the ACT there is a sequential system of EIA: a Preliminary Assessment (PA), a Public Environment Report (PER), an Environmental Impact Statement (EIS) and an inquiry. The first form of EIA is a PA. As at 31 December 2002, 164 PAs had been triggered and evaluated. At least a further ten per cent of proposals triggered a PA, but the proponent then either

by Alice Campey Andrew Macintosh

* In December 2002 the ACT Legislative Assembly passed the Planning and Land Act 2002 (ACT) and consequential amendments to the Land (Planning and Environment) Act 1991 (ACT). These two pieces of legislation did not commence until 1 July 2003. Though the law in this handbook is stated as it was at 31 December 2002, this chapter incorporates the amendments made by those Acts.

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withdrew or modified the proposal, negating the requirement for a PA. Once a PA has been completed the minister, or relevant minister, has the discretion to direct further assessment in the form of a PER or an EIS or an inquiry, if he or she believes that the environmental impact of the proposal is of sufficient significance, or if the impact has not been adequately assessed in the PA. The minister has directed that only four of the 164 PAs continue to a PER and no EIS or inquiry has been done to date. The Land Act refers to the Environment Minister; however, at the time of writing it was the Minister for Planning who was responsible for the EIA provisions of the Land Act and for the new, independent ACT Planning and Land Authority (ACTPLA). The Land Act also refers to the relevant minister; this is the minister responsible for the legislation under which a particular EIA or inquiry is authorised (s.111).

When is EIA required?

EIA can be initiated through the Land Act, the Environment Protection Act 1997 (ACT) and the Public Health Act 1997 (ACT). Under Part 4 of the Land Act, EIA can be required for the following (defined) decisions: development applications (see Chapter 3) draft variations to the Territory Plan (TP) (see Chapter 2) the grant of leases by the government (see Chapter 2) subdivisions or consolidations of leases (see Chapter 2) the preparation or revision of draft plans of management for public land, for example, national parks, nature reserves, and urban open spacethe requirement for an EIA on draft plans of management is at the discretion of the Conservator of Flora and Fauna (see Chapter 8). The Environment Protection Act provides that EIA can be required for activities (not subject to development application) that might cause significant environmental harm. To date there have been no examples where this has occurred. The Public Health Act provides that EIA can be required for developments that might have a significant effect on public health. To date there have been no examples where this has occurred.

Preliminary Assessment
When is a PA required?
The Land Act provides that a PA is mandatory for proposals listed in Appendix II of the TP, including:

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buildings of significant height, or gross floor area, or within sensitive land use areas specified manufacturing industries major roads clearing of more than 0.5 ha of remnant native vegetation waste disposal facilities. The minister may exempt an Appendix II proposal if he or she is satisfied that: the proposal does not represent a significant change on an existing situation the proposal has already been the subject of another form of assessment it is intended by agreement with the Commonwealth or New South Wales that the proposal be assessed by that authority. Examples where proposals have been exempted from EIA requirements include: the electricity co-generation plant at Mugga Tipthe site had already been subject to two sets of impact assessment fibre optic cabling from Civic to the ANUthe proposal would not cause significant change in environmental quality Amaroo schoolsthe proposals were already the subject of another form of assessment completed under previous legislation prior to selfgovernment (the 1989 Gungahlin EIS). The minister also has discretionary powers under the Land Act to direct that a PA be prepared. Whether mandatory or discretionary, if a PA is triggered the minister, or the relevant minister, must notify the proponent in writing with a brief description of why the proposal requires an impact assessment.

Who prepares the PA?

A PA is prepared by a proponent, the person or body nominated by the minister, whose interests would be most directly affected by the decision (s.112). This is usually the person or body proposing the development and may be a company or a government authority. It seems to be generally accepted that the proponent is normally best placed to modify proposals to take account of environmental impacts and, therefore, it is most appropriate that the proponent take responsibility for preparing the PA. ACTPLA, the body that administers environmental impact assessment in the ACT, writes to the proponent to trigger the PA, and provides the document Procedures for preparing a preliminary assessment. This document assists proponents in the preparation of PAs by outlining their scope and content, and by describing the administrative procedure for PAs.

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What must be addressed in a PA?

The PA must include the matters listed in Schedule 3 of the Land Act (s.115), including a description of the project, the existing environmental conditions, the potential environmental impacts and the potential benefits and disadvantages of the project. If the PA does not address the matters listed in Schedule 3 it may need to be resubmitted and re-notified. Public comment may also deal with a failure to address all Schedule 3 matters (see below). As proposals can differ markedly in the type and extent of their impacts, Schedule 3 does not detail the type of impacts that must be addressed. In effect, it is the responsibility of proponents to identify the relevant impacts of their proposal. These impacts may need to be analysed on regional and local scales, for short and long term effects, and for reversible and non-reversible impacts. The extent that a proposal exacerbates existing impacts, and the degree to which effects are likely to be uncertain, are also important.

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ACTPLA provides a list of potential impacts that can be used as a guide by proponents in identifying the relevant impacts of their proposal. It is made clear to the proponent that the list is only for guidance and it is not exhaustive of all issues for the specific proposal, and the proponent will also need to address things not on the list. This list includes: impacts on the physical environmentincluding energy use and efficiency, changes in noise levels, generation of traffic, provision of parking, and nature of and remediation for any contaminated site impacts on the human environmentincluding possible air pollution, greenhouse gas emissions, restriction of solar access, heritage issues, and aesthetic and amenity issues proposed mitigation measures potential impacts on non-human, biological environmentsincluding conservation measures for flora, fauna and communities (particularly those that are endangered), plus water use, resources, discharges and effects on aquatic ecology. This guide can be viewed on the ACTPLA website (see Contacts list at the back of this book). PAs are not intended to be an exhaustive analysis; they are preliminary, but of sufficient scope and detail to determine whether or not potential impacts exist, and the nature of those impacts. It is the proponents decision as to the level of detail deemed appropriate. Often proponents lodge very detailed PAs to avoid the need for further assessment and associated time delays. Consequently, PAs vary in length from about twenty to hundreds of pages with considerable attachments, depending both on the size and complexity of the project. However, to assist proponents in ensuring that all relevant environmental impacts are addressed, and that the PA meets legislative requirements, ACTPLA offers a quality control service for draft PA documents. Drafts are distributed within the authority for comment; these comments are then consolidated and returned to the proponent to assist in refining the PA. Once a PA has been formally lodged it cannot be altered or amended in any way.

How can the public participate in the PA process?

Once a PA has been submitted to the minister, ACTPLA places a notice in the ACT legislation register and the Canberra Times, stating that copies of the PA are available for public inspection for a period of at least fifteen business days in specified places, including all ACT government public libraries and the ACTPLA shopfront. A proponent pays a submission fee to cover the cost of such

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advertising. Copies of the PA are available for purchase at the ACTPLA shopfront, at a cost based on the cost of reproducing the document, photocopying and binding, but not the expenses incurred in preparing it. The PA is also available on the ACTPLA website for the duration of the public consultation period. Copies are also provided to the Conservation Council of the South East Region and Canberra, as well as the Local Area Planning Advisory Committees or other community councils, for example, Tuggeranong Community Council and Gungahlin Community Council, should the project be in their catchment. Members of the public are entitled to make submissions to the minister, or his or her delegate, within that fifteen-day inspection period. ACTPLA provides no specific advice to the public on how to prepare a submission; people are encouraged to provide comments on whatever is important to them. Submissions can be forwarded to ACTPLA in person, by post, email or fax (see Contacts list at the back of this book). ACTPLA considers all submissions it receives as part of the assessment of a PA.

What decisions are outcomes of the PA process?

From the date the PA is submitted to the minister, he or she has thirty business days to decide whether or not further assessment is required. This decision is aided by an evaluation report prepared for the minister by ACTPLA. In determining whether further assessment is required consideration is given to whether all issues have been adequately addressed in the PA. Also, potential amelioration measures are considered and any statutory instruments available to government that may adequately deal with impacts without the need for further assessment, for example, pollution licensing. The evaluation report document is not necessarily released to the public but can be obtained by contacting the ministers office, and requesting a copy of the PA evaluation. If a member of the public wishes to find out more about a particular EIA process, further information may be obtained by using the Freedom of Information legislation (see Chapter 11). The decision on whether further assessment is required is the only outcome required in the PA process. The PA informs the decision-making processit is not an approval process. If the EIA has been triggered as part of the development application process, then any recommendations made to the minister as part of the evaluation of the PA are considered when assessing the application and these recommendations can become conditions of approval (see Chapter 3). When the PA is lodged at the same time as the relevant development application, the two documents are notified concurrently for public comment. Similarly,

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draft variations to the Territory Plan and PAs can be concurrently notified. Notifications are published in the ACT legislation register (see Contacts list at the back of this book).

Round table conferences

Section 128 of the Land Act provides for round table conferences (RTC) that allow the minister to formally bring together the proponent, affected people and anyone else the minister considers appropriate. The aim of the RTC is to clarify the proposal, plus any concerns about it, and discuss ways the proposal could be modified to reduce or eliminate any potential adverse impacts. Discussion or suggestions occurring at an RTC may result in the proposal, or aspects of the proposal, being modified. The minister must consider the report of any RTC when making a decision on whether further impact assessment is required, that is, whether a PER or EIS is required. An RTC was conducted for the Belconnen Soccer Club facilities. The PA for the club was assessed as being inadequate, so further assessment was required in the form of a PER, the issues being noise, lighting and traffic. As part of the PER process the minister directed that an RTC be held to clarify the issues. Several resident groups, the proponent and officials from Planning and Land Management in the Department of Urban Services (the precursor to ACTPLA) attended.

Further impact assessment

Introduction
If the minister decides a proposal is of sufficient significance, or that the PA has not adequately addressed the impacts, and therefore it requires further impact assessment, he or she can direct that either a PER or an EIS be prepared (s.121). Of the 164 PAs completed at 31 December 2002, only four have triggered further assessment in the form of a PER. At least one other proposal was assessed as being likely to require further assessment in the form of a PER, but the proponents subsequently withdrew the proposal. A PER was also required for the proposed ACT prison, however no PER had been submitted by 31 December 2002. No proposals have yet required further assessment in the form of an EIS. Unlike a PA, both a PER and an EIS require the proponent to address possible alternatives to the proposal.

PER or EIS?
Under Div.4.3 of the Land Act the grounds for determining whether further assessment takes the form of an EIS or PER are based on the extent and number of the issues to be addressed. That is, a PER would be required where only a small number of the issues raised in the PA need further assessment, while an EIS would be required where the whole proposal needs more detailed assessment.

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For example, the Belconnen Soccer Club facilities required further assessment in the form of a PER, rather than an EIS, because it needed to address only the three specific issues of noise, lighting and traffic, as opposed to re-addressing the environmental significance of all aspects of the proposal. The other two PERs completed to date were for the Tuggeranong Hyperdome extension and the Woden Plaza redevelopment.

Who prepares the PER or EIS?

As with a PA, a PER or EIS is prepared by the proponent. However, the minister may direct the proponent to engage the services of a consultant specified by the minister to assist the proponent in the preparation of the further assessment. Usually the minister indicates that consultants should be chosen from a particular list rather than specifying an individual consultant.

What must the PER or EIS address?

Both a PER and an EIS must address matters as directed by the minister and as prescribed in s.120 of the Land Act and the Land (Planning and Environment) Regulations 1992 (Land Regulations). Generally, they include the environmental effects of the proposal, possible alternatives to the proposal, and the technical assessment of the proposed environmental standards and safeguards. For each proposal requiring further assessment, the minister, in consultation with the relevant minister, must direct the matters to be included in the report or statement and the relative emphasis to be given to each of these matters (s.123). The minister must publish the matters to be included in the PER or EIS in the Canberra Times and ACT legislation register.

Public participation
The procedures for public consultation differ between PERs (s.124) and EISs (s.125). In relation to the preparation of a PER, the minister may direct the proponent to undertake consultation and may also direct the type and level of that consultation. In contrast, under the Land Act public consultation on a draft EIS is mandatory. Once a draft EIS is complete the proponent must publish a notice in the Canberra Times stating that copies of the draft EIS are available for public inspection for a minimum of twenty business days and inviting the public to submit written comments within that period. The proponent may sell copies of the draft EIS at a price reflecting the cost of reproducing the document, not the cost of preparing it. The proponent must consider any written comments in the preparation of the final EIS, as well as submitting a report on the consultation to the minister.

What decisions are outcomes of the PER or EIS process?

Once a PER or EIS has been submitted to the minister he or she may, within forty-two days, direct that further information is required or the document be

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revised. The minister must prepare a written report evaluating the document within fifty-six days of the document being originally submitted or within a prescribed period if the minister sought further information or revision of the document. The ministers evaluation report must include: a statement as to whether the document has been prepared in accordance with the requirements of the Land Act and Land Regulations and relevant directions by the minister any comment about the environmental impact of the proposal a report on any round table conference any recommendations about conditions that should be attached to the development approval. The minister may, at this stage, recommend that the proposal not proceed. The minister must then, within six sitting days of finalising the evaluation report, table in the Legislative Assembly the PER or EIS, the evaluation report, any report about public consultation, plus the submissions received, and any direction by the minister to review the assessment document or provide further information. The minister must make copies of these documents available to the public and advertise their availability in the ACT legislation register and the Canberra Times. As with a PA, if the minister recommends that the proposal proceed, then the PER or EIS goes back to ACTPLA where the development application is being considered, and the minister can make recommendations to be applied to the proposal.

Inquiry
The Land Act (Div.4.4) allows the minister to initiate a formal inquiry into a proposal or a number of related proposals. The minister appoints the person or persons to constitute a panel to conduct the inquiry. The minister also determines the terms of reference for the inquiry and must advertise these in the ACT legislation register and the Canberra Times. Each inquiry may determine its own procedures, including whether people may make submissions orally or in writing, and whether it is to be held in public or private. After the inquiry has reported to the minister, the minister must table the report in the Legislative Assembly within six sitting days and advertise its availability to the public. No such inquiry has yet been held in the ACT.

Commonwealth EPBC Act

Introduction
Activities undertaken in the ACT, and in neighbouring areas in New South Wales, may also need to be assessed and approved under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). These approval and EIA requirements are in addition to the requirements under ACT legislation.

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The Environment Australia website includes extensive and detailed information about the operation of the EPBC Act (see Contacts list at the back of this book).

Actions requiring assessment and approval

The EPBC Act prohibits any person from taking an action that is likely to have a significant impact on a matter protected under a provision of Part 3 of the Act without the approval of the Commonwealth Minister for the Environment and Heritage. An action is broadly defined in the EPBC Act as including a project, development, undertaking and an activity or series of activities. However, the definition of action expressly excludes: a decision by a government bodyincluding government agencies and local councilsto grant a governmental authorisation for another person to take an action a decision by a government body to provide funding by way of a grant. The matters protected under Part 3 can be divided into two categories: matters of national environmental significance matters relating to the Commonwealth, Commonwealth agencies and Commonwealth land. There are a number of exemptions from these approval requirements, which are discussed below.

What is a significant impact?

The EPBC Act provides no guidance on the meaning of significant impact. Administrative Guidelines have been prepared by Environment Australia to assist proponents to determine when a proposed action may have a significant impact on a matter of national environmental significance. Copies of the guidelines are available at the EPBC Act page of the Environment Australia website (see Contacts list at the back of this book). While helpful, these guidelines are not legally binding. The Federal Court considered the meaning of significant impact in the case of Booth v Bosworth ((2001) 114 FCR 39), which involved the destruction by a lychee farmer of Spectacled Flying-foxes from the Wet Tropics World Heritage site. The Court suggested that a significant impact under the EPBC Act is one that is important, notable or of consequence having regard to its context.

Matters of national environmental significance

There are currently six matters of national environmental significance: world heritage values of declared World Heritage properties ecological character of declared Ramsar wetlands

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listed threatened species (other than extinct and conservation dependent species) and ecological communities (other than vulnerable ecological communities) listed migratory species nuclear actions the environment in Commonwealth marine areas and Commonwealth managed fisheries. The matters of national environmental significance, which are most likely to be of relevance to actions taken in the ACT, are listed threatened species and listed threatened ecological communities. For example, the listed threatened ecological communities include the Natural temperate grassland of the Southern Tablelands of NSW and the Australian Capital Territory. This endangered ecological community is threatened by land clearing and residential development in the ACT. The Environment Australia website contains an interactive search map to assist in determining what matters of national environmental significance are found in a certain area.

Actions concerning the Commonwealth, its agencies and land

Under Part 3, Division 2, approval is required for the following actions: those likely to have a significant impact on the environment on Commonwealth land, irrespective of where the action is carried out those taken on Commonwealth land that are likely to have a significant impact on the environment (anywhere) those carried out by the Commonwealth or a Commonwealth agency that are likely to have a significant impact on the environment (anywhere). Commonwealth land is defined broadly to include land owned or leased by the Commonwealth or a Commonwealth agency, and land in an external territory (except Norfolk Island) and the Jervis Bay Territory. Similarly, Commonwealth agency is defined broadly to include any minister, body corporate established for a public purpose by a law of the Commonwealth, and a company in which the Commonwealth owns more than half the voting stock (except Telstra Corporation Ltd).

Referral process
A proponent of an action that may have a significant impact on a matter protected under Part 3 of the EPBC Act is required to refer details of the activity to the Commonwealth Minister for Environment. If a proponent fails to make such a referral, the minister may call in the action. Commonwealth, state and territory agencies may also refer actions proposed by another person to the minister.

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Upon receiving a referral, the minister must determine whether the activity must be approved, that is, whether the activity is likely to have a significant impact on a matter protected under Part 3 of the Act. If a proposed action does require approval it is called a controlled action. If the minister determines an action is a controlled action, he or she must identify which provisions of Part 3 are the controlling provisions for the action. For example, if a proposal requires approval because it is likely to have a significant impact on a listed threatened ecological community, the controlling provisions are ss.18 and 18A that offer protection for those communities. The minister usually has twenty business days to determine whether an action is a controlled action and, if it is, which provisions will be the controlling provisions for the action. Notice of all referrals is placed on the Environment Australia website. Unless the proponent declares that it believes the action is a controlled action, members of the public will be given ten business days to submit comments on whether they believe the action is likely to have a significant impact on a matter protected under Part 3 of the EPBC Act.

Environmental impact assessment process

If the minister determines that an action does require approval, an assessment must be carried out on the relevant impacts of that action. The relevant impacts are potential impacts on the matters protected under Part 3 of the EPBC Act that the minister determined are likely to be affected by the proposal. For example, if an action is likely to have a significant impact on a listed threatened species, the assessment must address the potential impacts of the activity on the threatened species. After the minister has determined what the controlling provisions for an action are, the proponent must provide preliminary information to assist the minister to decide which of the five possible methods of assessment, provided for in Part 8, should apply. The methods of assessment are: assessment on preliminary documentation public environment report (PER) environmental impact statement (EIS) public inquiry accredited assessment process. In choosing, the minister will have regard to the information provided by the proponent on the potential impacts of the proposed activity and, if the activity will be carried out in a state or territory, comments received from the relevant state or territory government.

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Where assessments are carried out by way of PER, EIS or public inquiry, the minister will issue guidelines or terms of reference that identify what specific matters the assessment must address. Assessments may address impacts other than relevant impacts, however, they will only do so where the relevant action is to be taken in a state or territory and that state or territory has asked the minister to ensure that the assessment under the EPBC Act covers other impacts. The proponent will generally be responsible for carrying out the assessment and preparing relevant assessment documentation. The key steps in the assessment processes (with the exception of public inquiries) and the person responsible for these steps are set out below. Provision of preliminary information Determination of assessment approach Preparation of guidelines or terms of reference (only applies to PERs and EISs) Preparation of draft assessment documentation Publication of draft assessment documentation Public comment period Preparation of final assessment documentation, taking comment into account Preparation of assessment report Proponent Minister Minister Proponent Proponent Public Proponent Secretary, Environment Australia

If the assessment is by way of public inquiry, then the minister will appoint commissioners to carry out the inquiry and will set their terms of reference. The commissioners have flexible powers in conducting the inquiry, including the powers to call witnesses, obtain documents and inspect places. The inquiry must be held in public unless the commissioners believe it is in the public interest to hold all or part of it in private. The commissioners must report to the minister and publish their report, unless the inquiry, or part of it, was held in private. The responsibility for the preparation of documents and for carrying out necessary assessments will depend upon the terms of reference for the inquiry and how the commissioners decide to conduct the inquiry.

Bilateral agreements and accredited assessment

The EPBC Act allows the minister to enter into agreements with the states and territories under which the responsibility for assessing and/or approving actions can be transferred to the state or territory concerned. These agreements are called bilateral agreements. Where this occurs, actions that fall within the terms

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of the agreement will be exempt from the assessment and/or approval requirements under the EPBC Act, and will be assessed and/or approved under the relevant state or territory processes. At the time of writing, Tasmania, Northern Territory and Western Australia had entered bilateral agreements with the Commonwealth, covering assessment procedures only. To date, no bilateral agreements covering approvals have been entered into, thus all matters must still be referred to the Commonwealth minister for approval. A bilateral agreement, which allows for the transfer of assessment responsibilities only, is currently being negotiated between the Commonwealth and the ACT. A copy of the draft agreement, which is not endorsed by the ACT, can be viewed on the Environment Australia website. In some cases the minister may declare that other Commonwealth, state or territory assessment processes can be used for the purposes of a particular assessment under the EPBC Act. These are accredited assessment processes. In order to accredit another assessment process, the minister must be satisfied that the process will adequately assess the relevant impacts of the action. At the completion of the accredited assessment process, the relevant Commonwealth, state or territory agency must provide the Commonwealth minister with a report on the relevant impacts of the action. The Commonwealth minister must then decide whether to approve the action.

Environmental approvals
After the completion of the assessment process, the minister must decide whether or not to approve the proposed activity and, if it is approved, whether to impose conditions on the approval. The minister is usually required to make this decision within thirty days of the completion of the assessment process, or if the assessment is by inquiry, within forty days. In making this decision the minister must consider matters relevant to the matters protected under the controlling provisions. He or she must also take into account: economic and social matters the principles of ecologically sustainable development the assessment report any other information the minister has on the relevant impacts of the proposed action. Presumably, this last matter would include any relevant public comment. The minister may also consider a proponents history in relation to environmental

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matters. Conditions attached to an approval may include provision of a bond or other security, independent environmental auditing, or monitoring compliance with codes of practice. It is worth noting that over 900 referrals have been made and only one has been prevented from proceeding and only about forty have had conditions imposed.

Penalties
Failure to obtain approval for an activity that has, or is likely to have, a significant impact on a matter protected under Part 3 of the EPBC Act is a criminal offence. Severe penalties can be imposed for failing to obtain proper approval, including a fine of up to $5.5 million for a corporation, a fine of $550,000 or seven years imprisonment or both for an individual. If a condition attached to an approval is breached, then this is also a criminal offence with penalties of up to $110,000 or two years imprisonment or both for an individual and $1.1 million for a corporation. Failure to comply with the terms of an approval can also result in the suspension or revocation of an approval. In addition to criminal sanctions, the minister can also bring proceedings in the Federal Court to obtain civil penalties.

Exemptions
There are a number of instances where actions can be exempt from both assessment and approval under the EPBC Act. Further, certain actions can be exempt from the assessment process, while still requiring approval under the Act. For example, under s.158 the minister can grant an exemption from specific provisions of the Act, including the entirety of the assessment and approval process, if the minister is satisfied that it is in the national interest that those provisions do not apply to the action. Notice of such exemptions, and the reasons for granting them, must be published on the Environment Australia website. There are also exemptions for actions that are declared under a bilateral agreement not to require approval.

Opportunities for public participation

The opportunities for public involvement in the referral and assessment processes have been mentioned in the text above; the following section gives more detail. A referral goes to public comment when the proponent is not sure whether the proposed action will have to be assessed or not. Notice of the referral is published on the Environment Australia website and comments must be submitted within ten business days. Matters to be addressed in any submission must cover whether the proposed action is likely to have a significant impact on any matter protected under Part 3 of the EPBC Act.

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If the action is to be assessed by PER or EIS, then the minister prepares guidelines for that process. At the discretion of the minister there may be an opportunity for public comment at this stage. The question to be addressed will be whether the guidelines are appropriate. Whether the assessment is by preliminary documentation, PER or EIS, the proponent prepares draft documentation. An invitation to provide comment on the draft is then published in a national, state or territory paper, depending on the location of the action and, if practical, in a regional newspaper in the region affected. A notice is also published on Environment Australias website. The draft assessment document will include the time limit for comments, but it must be not less than twenty days. As well as addressing the accuracy and thoroughness of that documentation, comments should address: potential impacts on matters of national environmental significance or other relevant matters protected under Part 3 of the EPBC Act (see above) social and economic issues the history of the proponent in relation to environmental issuesany allegations made against the proponent must be supported by reliable evidence (see Chapter 11 for a discussion of defamation) what conditions should be attached to any approval. Where assessment is by way of public inquiry it is usually because public involvement is seen to be necessary. However, whether objectors and third parties are given the opportunity to make written or oral submissions is at the discretion of the commissioners appointed to run the inquiry.

Legal review
Decisions made under the EPBC Act are subject to judicial review under the Administrative Decisions (Judicial Review) Act 1976 (Cth) in the Federal Magistrates Court or the Federal Court. The EPBC Act makes special provision extending the category of persons who can apply for judicial review (s.487). However, there is no right of review in the Commonwealth Administrative Appeals Tribunal. In certain circumstances, a third party, or the minister, can seek an injunction in the Federal Court to prevent a contravention of any of the provisions of the EPBC Act. The case of Booth v Bosworth (referred to above) involved a third party seeking an injunction to prevent a lychee farmer operating an electric grid to protect his crop as the grid was causing the death of thousands of Spectacled Flying-foxes, which the applicant argued was having a significant impact on a World Heritage listed property.

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Conclusion
Activities that impact on the environment in the ACT may therefore require assessment under either the ACT legislation or the Commonwealth EPBC Act or both. Both are complex processes and so this chapter has provided only a simple overview, but it highlights that there are at least some opportunities for public participation and comment in both processes.

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