The Environmental Effects Statement (EES) Process and how Best Hooper Lawyers can assist you

An Environmental Effects Statement (EES) is the primary state-level assessment mechanism for major projects which could significantly affect the environment.

Purpose and process

The purpose of the EES process is to equip a decision-maker with sufficient information to determine whether a major project should be approved, and under what conditions.  In Victoria, the EES process refers to a comprehensive environmental impact assessment pursuant to the relevant provisions of the Environment Effects Act 1978 (EE Act). The process is required by the Minister for Planning, at the request of a project proponent or decision maker when a particular project is anticipated to have a significant environmental impact.

Relevantly, an EES does not constitute an approval or permit in and of itself. Instead, the EES is an information gathering process that feeds into other processes for making decisions and issuing approvals, for example, a planning permit pursuant to the provisions of the Planning and Environment Act 1987.

Because the EE Act does not specifically define the types of major projects that necessitate the preparation of an EES, the trigger for preparation of an EES depends on whether a project is likely to have significant environmental effects at a regional or state scale. The discretion to require an EES rests solely with the Minister for Planning.  

The Minister may require an EES for projects, private or public, when standard planning or other statutory approval processes alone are unlikely to provide a sufficiently comprehensive assessment of environmental impacts.

The EES process is summarised below:

Stage	Description
1. Referral	The project proponent (or decision-maker) refers a project to the Minister for Planning when it’s considered likely to have significant environmental effects.
2. Minister’s Decision (Need for EES)	the Minister then decides whether:  an EES is required  an EES is not required (project proceeds under standard process)  an EES is not required, but conditions / further studies /mitigation required.
3. Scoping	If an EES is required, the minister issues “scoping requirements” — i.e. what environmental (and other) aspects need to be investigated and reported.
4. Prepare EES by Proponent	The project proponent carries out the required technical studies (ecology, social, noise, water, heritage, safety etc.), assess impacts, propose mitigation/management/offset measures, and draft the EES report and a consultation plan.
5. Public Review (Exhibition + Submissions)	Once the EES report is complete and approved for release by minister or the Department, it is exhibited for public comment.    After submissions, the Minister may appoint an inquiry to examine the project — options include: desktop review, an informal conference, or a full formal hearing with expert and public evidence.
6. Assessment / Report by Minister	Once the inquiry (if any) is completed and submissions have been considered, the Minister prepares a formal “Assessment of Environmental Effects.” This will consider all the evidence, submissions, proponent’s responses and inquiry recommendations.
7. Decision-making by Relevant Authorities	The environmental assessment does not itself approve the project. Instead, decision-makers (e.g. planning authorities, councils, government departments) must consider the minister’s assessment when deciding whether to grant permits or authorise public works.

What are the types of environmental impacts assessed by an EES?

The term “environment” in respect of assessment of impacts as part of an EES is broad and not simply confined to ecological impacts. Other environmental effects worth of assessment under an EES process may include:

• Biophysical environment: ecosystems, wildlife habitat, waterways, vegetation, air quality, noise, greenhouse emissions, energy, land, geology.  
• Social environment: affected communities, housing, infrastructure, traffic, public health, amenity.  
• Economic and land-use: impacts on local economies, employment, land use, planning, long-term sustainability.  
• Cultural heritage, including Aboriginal cultural heritage.
• Cumulative, indirect, long-term effects (not just immediate or direct effects).  

Because the EE Act itself does not define fixed thresholds or clear objective criteria for determining what amounts to a “significant environmental effect” the determination of whether such effects exist largely relies on Ministerial discretion.

For context, recent EES processes include the:

• Western Renewables Link;
• Marinus Link; and
• Warracknabeal Energy Park.

How can Best Hooper assist?

Best Hooper’s Planning Team has significant experience acting for proponents and landowners across regional Victoria in EES processes and inquiries convened through Planning Panels. 

Best Hooper is one of Victoria’s preeminent planning and environment law practices and is well placed to advise proponents, landowners and submitters alike.

Typically, an EES is a fast-moving process, and, for submitters, we recommend early legal engagement to ensure that any written submission is lodged correctly, in a fulsome manner and so that it preserves your right to be heard.