News

Outcomes-Based Conditions Policy and Guidance Under the EPBC Act

Draft Policy and Guidance Documents released for public comment

 Outcomes-based Conditions Policy Australian Government Department of Environment Conditioning of approvals under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is set to enter a 'step change' with the Department of the Environment (DoE) recently releasing Outcomes-based Conditions Policy and Guidance documents.

Outcomes-based conditions specify the environmental outcome that must be achieved by an approval holder without prescribing how that outcome should be achieved. Outcomes-based conditions allow approval holders to be innovative and achieve the best environmental outcome at the lowest cost, while increasing the public transparency of the required environmental outcomes.

Previously, conditions imposed on projects approved under the EPBC Act were largely prescriptive – directing proponent's on how to comply with the condition.

A typical example would be:

'The proponent must not clear move than 10 hectares of the threatened ecological community and an offset must be provided in accordance with the EPBC Act Environmental Offsets Policy'.

Under the proposed outcomes based conditioning, the outcome sought is 'to achieve no net loss in extent or condition of the threatened ecological community'. The proponent has flexibility to clear move than 10 hectares as long as they can demonstrate that no net loss of the community will be achieved.

This change provides the incentive for proponents to consider different ways to comply with the outcome. some of which could be cheaper than simply clearing 10 hectares and providing an offset.

The Policy and Guidance allows DoE to embrace a range of conditioning types for each project, including:

 

  • Prescriptive (technology or standards)
  • Systems-based (management)
  • Outcomes-based (performance based)
  • Surrogate conditions (a form of outcomes-based)

 

This allows DoE to consider a range of conditions that will lead to the best outcome for the protected matter. However, not all projects, or proponents, will be suitable for outcomes-based conditioning.  An integral part of outcomes-based conditioning is the increase in monitoring and assurance required to show progress towards the conditioned outcome.

Often a proponent will need to demonstrate progress against the “no net loss” requirement such as:

  • The area of threatened ecological community that has been cleared
  • The status of any offsets put forward
  • The status of progressive rehabilitation of the community
  • The expected time-frames to achieve no net loss
  • Any unexpected impacts and/or corrective actions that have been taken

 

Outcomes-based conditioning requires a high level of interaction and negotiation between proponents and DoE, to set appropriate conditions on a project.

Contact us

We can assist you to determine if your project is suitable for Outcomes-based conditioning and formulate appropriate conditions for use in negotiations with DoE.  Please contact us on 1300 839 325 or enquire@ehpartners.com.au to discuss your project.

Relevant Link

Department of the Environment



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