Significance of the principles

The significance of the principles is understated. They not only play a ‘supporting role’ and operate at a ‘high level’ in providing ‘relevant context and guidance’. In some matters they operate at a more fundamental or threshold level.

EPA agrees the principles can operate at a fundamental or threshold level.

Section 2.3 of the Guideline has been strengthened to acknowledge that EPA is expected to consider the principles in its statutory decision making and that failure to do so could result in the Victorian Civil and Administrative Tribunal or a Court setting its decision aside.

Integrated application of the principles

While the guideline discusses each of the principles separately, it should be noted that the principles are commonly applied in an integrated fashion.

EPA agrees. Section 2.1 has been amended to further emphasise this important point.

Risk-based approach

The application of the principles should simply be scaled to risk.

The direct application of the principles is, to some extent, scaled to risk. As noted in the guideline, ‘fast track’ works approval applications – those assessed by EPA as low risk – are unlikely to require a direct application of the principles. As set out in the guideline, the application of many of the principles requires proponents and EPA to consider risks and apply a proportionate approach.

Case-by-case application of the principles

A formulaic approach must be avoided. The guideline needs to recognise that each set of circumstances to which the principles apply is unique.

Regional circumstances

The guideline should more explicitly mention the importance of considering regional circumstances.

The guideline now notes that regional circumstances are one of the issues to be considered when applying the principle of integrated environmental management. This is part of recognising that each set of circumstances to which the principles apply is unique.

Application of the principles by other decision makers

It would also be useful to understand how the same or similar principles are applied by other government decision makers (e.g. planning authorities, environment departments) in relation to planning permit or development applications that do not require an EPA works approval.

EPA acknowledges this would be useful. However, the scope of the guideline does not extend to how other government agencies interpret, and expect proponents to apply, the same or similar principles under other legislation.

Cost effectiveness

The role of ‘cost effectiveness’ in considering works approval applications appears to be significantly overstated. The repeated reference to only requiring ‘cost effective’ or ‘financially practicable’ measures does not reflect the responsibilities created the Act and should not be included.

Cost effectiveness is considered as part of the application of the principle of the integration of economic, social and environmental considerations (section 1B(3) of the Act). However, as noted in the guideline, EPA is not obliged to make a decision that ensures the financial viability of a development proposal. Proponents will, of course, consider the financial viability of different options for their individual business. A lower cost option may be supported by EPA, but only if it still meets the required environmental standards. Sections of the guideline have been revised to clarify this intent.

Cumulative impacts

The guideline does not consider the role of cumulative impacts in the application of the principles.

EPA disagrees. The guideline (in the text on the precautionary principle) advises proponents to consider cumulative impacts.

Integration of economic, social and environmental considerations

The principle of the integration of economic, social and environmental considerations is often directly relevant, rather than just sometimes directly relevant.

EPA agrees. In the draft guideline, this principle was categorised as ‘sometimes directly relevant’ (section 2.5). It has been re-categorised as ‘often directly relevant’ (section 2.4).

Wastes hierarchy

When it is assessing a waste-related works approval application, EPA should also look for evidence that the proposal aligns with the market-driven approaches in Getting Full Value: the Victorian Waste and Resource Recovery Policy.

Recent amendments to the Act – that will take effect on proclamation, which is likely to occur in mid-2014 – will result in EPA giving more consideration to whether a waste-related works approval application is consistent with government policy.

A new section 50C of the Act will enable EPA to refuse to consider an application if the operations of the facility could be inconsistent with the Statewide Waste and Resource Recovery Infrastructure Plan or a relevant regional waste and resource recovery implementation plan. These plans will be required to be consistent with any government policies (under new sections 50AB(2) and 50BB(2) of the Act).

Precautionary principle

The guideline does not explain why the precautionary principle is usually not applicable to projects involving greenhouse gas emissions unless their possible impacts are significant on a national or global scale. Projects do not need to be on such a large scale for this principle to apply.

EPA agrees. The guideline has been amended to note that the precautionary principle is also applicable to projects involving greenhouse gas emissions with possible impacts that are significant on a State scale (i.e. to Victoria).

Multi-criteria analysis

The guideline suggests using multi-criteria analysis when applying the principle of integrated environmental management. Assistance and guidance on using multi-criteria analysis would be useful.

EPA has not published its own guidance on using multi-criteria analysis. However, there are a number of useful manuals available – for example, Dodgson J, Spackman M & Pearman A (2002) DTLR (Department of Transport, Local Government and Regions), Multicriteria analysis manual.