Environment Protection and Biodiversity Conservation Act 1999

An approval of the taking of an action passes the net gain test in relation to a residual significant impact the action has, will have, or is likely to have, on a matter protected by a provision of Part 3, if:

either or both of the following kinds of conditions is attached to the approval:

a condition requiring the holder of the approval to compensate for damage to the matter that has been, or may or will be, caused by the residual significant impact;

a condition requiring the holder of the approval to pay restoration contribution charge in relation to the residual significant impact; and

compliance with the condition or conditions results in a net gain for the matter:

if the regulations prescribe the net gain for the matter—that is at least equal to the prescribed net gain; or

otherwise—that the Minister is satisfied is appropriate; and

if any other requirements are prescribed by the regulations in relation to compensation for damage to the matter—the requirements are satisfied.

An approval of the taking of a class of actions passes the net gain test in relation to a residual significant impact the class of actions as a whole has, will have or is likely to have, on a matter protected by a provision of Part 3, if:

either or both of the following kinds of conditions is attached to the approval:

a condition requiring the holder of the approval to compensate for damage to the matter that has been, or may or will be, caused by the residual significant impact;

a condition requiring the holder of the approval to pay restoration contribution charge in relation to the residual significant impact; and

compliance with the condition or conditions results in a net gain for the matter:

if the regulations prescribe the net gain for the matter—that is at least equal to the prescribed net gain; or

otherwise—that the Minister is satisfied is appropriate; and

if any other requirements are prescribed by the regulations in relation to compensation for damage to the matter—the requirements are satisfied.

Despite subsections (1) and (2), an approval of the taking of an action or a class of actions is taken to pass the net gain test in relation to a residual significant impact on a matter prescribed by the regulations for the purposes of this subsection if the Minister is satisfied that:

paragraphs (1)(a) and (c) or (2)(a) and (c) apply in relation to the residual significant impact; and

compliance with the condition or conditions attached as mentioned in paragraph (1)(a) or (2)(a) results in no net loss for the matter.

Despite subsections (1) and (2), an approval of the taking of an action or class of actions is taken to pass the net gain test in relation to a residual significant impact on the environment to the extent that the environment:

consists of people or communities; and

is protected by any of the following provisions of Part 3:

section 21 or 22A (about radiological exposure actions);

section 23 or 24A (about marine areas);

section 24B or 24C (about the Great Barrier Reef Marine Park);

section 26 or 27A (about Commonwealth land);

section 27B or 27C (about Commonwealth Heritage places overseas);

section 28 (about Commonwealth agencies).

The following provisions of this Act do not apply in relation to a residual significant impact on a matter protected by a provision of Part 3 if the matter is prescribed by the regulations for the purposes of this subsection:

paragraph 33(3)(i) (about accreditation of authorisation or management frameworks for the purposes of a declaration under section 33);

paragraphs 46(3)(i) (about accreditation of authorisation or management frameworks for the purposes of a bilateral agreement);

subsection 48A(5) (about undertakings in bilateral agreements in relation to residual significant impacts);

section 136C (about approval of actions with a residual significant impact);

paragraph 143(2A)(c) (about revoking, varying or adding to conditions attached to an approval);

paragraph 145D(3A)(c) (about extending an approval period);

section 146FC (about approvals under Part 10);

paragraph 177AP(e) (about making bioregional plans);

paragraph 177AS(i) (about varying bioregional plans).