Once an appeal has been received, the Appeals Convenor, decides the most appropriate method of investigation in accordance with the requirements of the Act having regard to the nature and complexity of the issue under appeal.
This will ordinarily include meeting with the parties to the appeal including the appellant(s), proponent and the Department. These discussions are informal in nature, and are intended to provide an opportunity to clarify the issues in contention. Due to the informal nature of the process, appellants do not require legal representation. Occasionally the Appeals Convenor may convene a combined meeting between the parties where the Appeals Convenor is of the opinion that this will assist in resolving the issues in dispute.
The Appeals Convenor, acting on behalf of the Minister, is required to seek the advice from the original decision maker, for example the Department of Water and Environmental Regulation or the Environmental Protection Authority.
The Appeals Convenor is required to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms. The Appeals Convenor is specifically not bound by any rules of evidence and may conduct inquiries in whatever manner is considered appropriate.
Appeals under the Act are ‘merits’ appeals. This means that the Minister can consider all relevant facts before making a decision. While process issues can be raised in an appeal, the focus of investigations will be on the substantive environmental matters raised in respect to the proposal or scheme.
EPA Report and Recommendations
The Appeals Convenor will have regard to the ‘consideration of significance’ as described in the EPA's
Statement of environmental principles, factors, objectives and aims of EIA (October 2021), which includes:
- values, sensitivity and quality of the environment which is likely to be impacted;
- extent of the likely impact;
- consequence of the likely impact;
- cumulative impact with other projects;
- level of confidence in the prediction of impacts and the success of proposed mitigation; and
- level of public interest.
Clearing permits
The Appeals Convenor will consider the appeal in the context of the formal requirements of the Act, including the clearing principles in Schedule 5 of the Act, relevant planning instruments and any other matters considered relevant.
Works approvals and licences
The Appeals Convenor will consider the appeal in the context of the formal requirements of the Act, including whether the conditions of the instrument are necessary or convenient for the prevention, control, abatement or mitigation of pollution or environmental harm.
Environmental Protection and Vegetation Conservation Notices
The Appeals Convenor will consider the appeal in the context of the formal requirements of the Act, including whether the requirements of the instrument are necessary or convenient for the prevention, control, abatement or mitigation of pollution or environmental harm.
In relation to vegetation conservation notices, a key consideration will be whether there is a reasonable basis to suspect that unlawful clearing is occurring, has occurred or is likely to occur on any land. This will include assessing whether the clearing was exempt under the Act or associated regulations.
The appeal investigation may also consider the extent to which conditions can address the issues raised, as well as relevant policies and new information that may not have been available at the time of the original decision.
On completing the investigation of an appeal, the Appeals Convenor will provide a report to the Minister. This report and recommendations must be consistent with any relevant Environmental Protection Policy or other standard prescribed under the Act.
The Minister is required to take the Appeals Convenor's report into account before deciding the appeal. The Minister can generally allow an appeal (in full or in part), or dismiss an appeal. In the case of appeals against a decision or recommendation of the Environmental Protection Authority, the outcomes available may include remitting the proposal to the Authority for fresh assessment or varying the conditions recommended by the Authority.
The Minister's decision is final and is not subject to appeal. Copies of decisions are available at search appeals.
While there are no statutory timelines in respect to appeal investigations, the Appeals Convenor aims to have 80% of appeal reports submitted to the Minister for Environment within 60 days of receiving a final response to the appeal from the relevant decision-making authority and proponent.