Environmental Protection (Cost Recovery) Regulations 2021

The regulations rest on a few defined concepts that determine both the scope of recoverable costs and how fees are calculated.

Costs and external costs

• "Costs, of the Department" is a multi‑part definition (regulation 3). It expressly includes costs of employing Departmental staff who assess proposals, costs of staff who manage or support those assessors, indirect costs such as office accommodation, motor vehicles, licensing and depreciation, and costs of funding staff of another agency to assist or advise the Department. The definition explicitly excludes "external costs of the Department" (regulation 3, definition of costs).
• "External costs" are separately defined as costs of acquiring services in the nature of advice and costs (including meals and accommodation) of Departmental staff travelling to the site or a related site (regulation 3). These are recoverable by invoice under regulation 10, and the CEO must supply original invoices on request (regulation 10(3)-(4)).

Assessment fee mechanism

• Beyond the flat fees in the Table, the assessment fee for item 5 is calculated by the CEO "in accordance with the method most recently published" on the Department’s website before the referral date (regulation 5(1)-(2)). The method may take into account specific matters (regulation 5(3)), including whether the proposal is strategic, bilateral under Part VIIIA, assessed under an accredited Commonwealth process, involves an environmental review or public inquiry, public consultation extent, number of key environmental factors identified, whether offsets are recommended, size of development envelope/disturbance footprint, and number of species or ecological communities that require assessment. The method may use cost units applied cumulatively to produce an aggregate amount (regulation 5(4)). The regulation also has an express note that a unit of costs might represent average staff time costs.

Who decides and how

• The CEO has a central role: publishing the assessment method (regulation 5(2)), determining the assessment fee and an estimate of it (regulation 8(2)-(3)), issuing invoices, determining compliance priority ratings (regulation 12(1)), and exercising discretion to refund/reduce/waive fees or extend/postpone payment (regulations 13-14). The Authority's decision to assess a proposal is the trigger for certain fees where the referral is made by someone other than the proponent (regulation 6(3)). Ministerial requests for additional information or interim conditions also trigger fees in the Table (items 10 and 13, regulation 4 Table).

Annual compliance rating

• "Compliance priority rating" is the CEO's rating for an approved proposal used to determine the annual compliance fee tier; it is based on risk to the environment, complexity of the proposal and the level of ongoing compliance by the proponent (regulation 12). The annual fee applies to each approved proposal in effect immediately before the commencement of the financial year (regulation 11(1)).

Timings and remedies

• Payment timings are either "on the day the request is made" for several items (e.g. requests under s 38C, EMP submission), "in accordance with" specified regulations (e.g. referral fee per regulation 6), or within 28 days of invoice (regulations 6(3)(b), 7(3), 8(4)-(5), 9(3) and 10(2)). Interest accrues on outstanding amounts at a rate equal to the RBA cash rate target plus 3 percentage points (regulation 15).

Transitional and review mechanisms

• The instrument includes transitional exclusions for pre‑commencement circumstances and costs (regulation 18), a specific rule for assessments commenced but not completed before commencement (regulation 19), and an express requirement that the CEO review the fees as soon as practicable after 1 July 2023 and report to the Minister (regulation 21).

These concepts determine which activities attract fixed fees; which are subject to a variable, method‑based charge; how external consultant and travel costs are recovered; how ongoing implementation monitoring is funded; and the degree of administrative discretion available to the CEO.

Primary obligor: the proponent of a proposal

• The regulations repeatedly identify the proponent as the person liable to pay fees. Regulation 4(2) states "The proponent of a proposal is liable to pay a fee payable under subregulation (1) in relation to the proposal." Regulation 11(2) repeats that the proponent of an approved proposal is liable for annual compliance fees. That places the financial burden on the developer or other party putting forward a proposal subject to Part IV processes of the Act.

Third‑party referrals

• A proposal referred by someone other than the proponent can still trigger a fee, but only once the Authority decides to assess the proposal. Regulation 6(3) provides that where a proposal is referred other than by the proponent, the fee is payable if and only if the Authority decides to assess it, and then becomes payable within 28 days after the proponent is given notice of the decision. Thus a proponent may be liable where a community or third party referral results in an Authority decision to assess.

Department and Authority

• The Department is the recipient of fees and costs; "costs, of the Department" is defined and used as the basis for the CEO’s assessment fee calculation (regulation 3). The Authority and the Minister are decision‑makers whose actions (Authority deciding to assess, Authority requesting additional information, Minister requesting extra information or imposing interim conditions) trigger fees as set out in the Table to regulation 4.

CEO

• The CEO determines assessment fee amounts and estimates (regulation 8), publishes the method for calculating assessment fees (regulation 5(2)), determines compliance priority ratings (regulation 12(1)), issues invoices, grants fee waivers or extensions (regulations 13-14), and recovers unpaid fees (regulation 16). The CEO therefore occupies central administrative and discretionary roles.

Other agencies and staff

• The definition of "costs" includes costs of funding staff of another agency when they assist or provide advice in relation to Departmental assessment activities (regulation 3). Those other agencies, while not directly liable under the regulations, may be budgeted for by proponents indirectly through recoverable costs invoiced by the CEO.

Consultants and contractors

• "External costs" include acquisition of advice and Departmental travel; those external costs are recoverable by invoice under regulation 10. Consultants engaged by the Department on an assessment may therefore generate recoverable charges that will be invoiced to the proponent.

Stakeholders affected by administrative uncertainty

• Because the method for assessment fees is published on the Department’s website and must be the "most recently published" method prior to referral (regulation 5(1)-(2)), proponents who refer proposals need to check the published methodology at the relevant time to understand fee exposure. Similarly, annual compliance fees depend on a compliance priority rating determined by the CEO (regulation 12), and invoices must set out how the rating was determined (regulation 11(6)). These procedural features mean proponents, financiers and advisors need to monitor the Department’s website and invoice documentation to verify fee bases.

Financial actors and courts

• Recovery mechanisms permit the CEO to recover unpaid fees as a debt in court and to issue a certificate identifying the fee and the liable proponent, with that certificate admitted as sufficient evidence in proceedings (regulation 16). Thus litigants and the courts are potential actors in enforcement.

In short, the obligations fall squarely on proponents, but third‑party referrals, Departmental external advisers, other agencies and the Department’s administrative officers are implicated by the processes the regulations establish. The CEO and the Authority control key thresholds and decisions that determine when and how fees are levied.

Key duties imposed by the regulations are primarily financial and procedural; key administrative rights and discretions belong to the CEO and to the Department.

Duties on proponents

• Payment duties: The proponent must pay the fees set out in the Table to regulation 4, including referral fees, amendment and information request fees, EMP submission fees and inquiry fees (regulation 4 and the Table). Item 5 assessment fees are payable per the CEO’s determination under regulation 5 and invoicing rules in regulation 8.
• Timing obligations: Many fees are payable either on the day of the request (items with that timing in the Table) or within 28 days of invoice (regulations 6(3)(b), 7(3), 8(4)-(5), 9(3), 10(2), 11(5)). Regulation 8 requires 80 per cent of an estimate to be paid within 28 days of invoice, with the balance payable within 28 days of final invoice; any overpayment must be refunded (regulation 8(4)-(6)).
• Record and documentary rights: For external costs, a proponent may request original invoices for the costs and the CEO must provide them (regulation 10(4)). Invoices for assessment fees must set out how the assessment fee (or estimate) was determined (regulation 8(7)). Annual compliance fee invoices must state the compliance priority rating, how it was determined, and when it was last determined (regulation 11(6)).

Duties on the CEO and Department

• Method publication: The CEO must publish a method on the Department’s website for determining amounts for item 5, and must apply the most recently published method before referral (regulation 5(1)-(2)).
• Determination and estimation: The CEO must determine the assessment fee as soon as practicable after the report is given to the Minister or the assessment is terminated, and must determine an estimate as soon as practicable after the Authority decides to assess (regulation 8(2)-(3)). The CEO must invoice accordingly and include the method/justification as required (regulation 8(7)).
• Invoicing and disclosure: The CEO is required to provide invoices for external costs that set out the purposes for which the costs were incurred (regulation 10(3)), and to supply original invoices if requested (regulation 10(4)).
• Rating decisions and disclosure: The CEO determines compliance priority ratings and must ensure that annual fee invoices state how and when the rating was determined (regulation 11(6); 12(1)-(3)).
• Administrative discretion: The CEO may refund, reduce or waive fees on a case by case basis (regulation 13) and may postpone or extend payment deadlines, even after the fee has become payable, with written notice required (regulation 14).

Rights and remedies for proponents

• Request for documentation: The right to obtain original invoices for external costs (regulation 10(4)) and to see how assessment fees and compliance ratings were calculated (regulations 8(7) and 11(6)).
• Access to CEO discretion: Proponents may seek a case by case waiver, reduction or refund, or an extension/postponement of payment dates from the CEO (regulations 13-14).
• Judicial remedy: A proponent facing recovery action can contest the debt and the CEO’s certificate in court; the regulations state a CEO certificate is "sufficient evidence" of the matters in it (regulation 16(3)), but do not oust judicial processes.

Procedural triggers and decision rights

• Authority decision to assess: For third‑party referrals, whether the fee becomes payable depends on an Authority decision to assess the proposal (regulation 6(3)). That places a procedural gate that determines when a non‑proponent referral leads to an invoice to the proponent.
• Ministerial triggers: Ministerial requests for additional information or imposition of interim conditions are express fee triggers in the Table (items 10 and 13), thereby giving the Minister a practical mechanism to impose a cost on proponents when seeking further material or issuing interim conditions.

Enforcement rights

• Interest and recovery: The CEO has the right to charge interest on overdue amounts at a statutory formula rate (regulation 15), and to recover unpaid fees, together with interest, as a debt in court, supported by a CEO certificate that is prima facie evidence in proceedings (regulation 16).

The regulations thus create reciprocal procedural obligations and limited transparency rights, while centralising significant operational discretion in the CEO and procedural decision points with the Authority and Minister that directly affect the timing and imposition of fees.

The regulations construct an enforcement ladder consisting of monetary interest, civil recovery and evidentiary facilitation by CEO certificate; they do not create criminal penalties or administrative suspensions in this instrument.

Interest on overdue amounts

• Regulation 15 establishes interest on outstanding amounts. Interest is payable at the "prescribed rate," defined as the RBA cash rate target plus 3 per cent in effect on the first day the amount became outstanding (regulation 15(2)). Interest does not compound (regulation 15(3)). That formula links the statutory interest rate to monetary policy settings and produces a floating rate that moves with the RBA cash rate target.

Civil recovery as a debt

• Regulation 16(1) permits the CEO to recover unpaid fees, together with any interest, from the proponent as a debt in a court of competent jurisdiction. The recovery is civil and on the usual private law footing for debt recovery.

CEO certificate as evidence

• Regulation 16(2) allows the CEO to issue a certificate specifying the amounts as being all or part of a fee, specifying interest, identifying the liable proponent and stating that the amounts are unpaid. Regulation 16(3) makes that certificate "sufficient evidence of the matters specified or stated" in proceedings, and removes the need to prove the CEO’s appointment or the authenticity of the signature. This provides an evidentiary shortcut for the Department in civil recovery actions and places the burden on the defendant proponent to rebut the certificate in court.

No criminal offences or licence suspensions in these regulations

• The regulations do not create any criminal offences or express administrative sanctions beyond monetary recovery and interest. They do not expressly give the Department a power to refuse to progress an assessment or to withhold decisions on the basis of non‑payment in this instrument. If such powers exist elsewhere in the Act, they are not restated here; the regulations are limited to fee imposition and recovery.

Invoicing and transparency as procedural protections

• Invoices are required to state how assessment fees (including estimates) were determined (regulation 8(7)) and to set out the purposes for external costs (regulation 10(3)). Annual compliance fee invoices must state the compliance priority rating and explain how and when it was determined (regulation 11(6)). These disclosure obligations are procedural protections designed to provide information for a proponent defending or negotiating a charge.

Administrative remedies

• The CEO retains the discretion to waive, reduce or refund fees, and to postpone or extend payment deadlines, including after a fee has become payable; written notice of postponement or extension must be given (regulations 13-14). That discretion functions as an administrative relief mechanism which proponents can seek to avoid litigation or interest accrual.

Timing and acceleration risks

• Many fees are due on the day of the request or within 28 days of invoice; failure to pay triggers the interest formula and exposes the proponent to civil recovery, with the CEO certificate streamlining evidence. The 80 per cent upfront payment obligation for assessment fee estimates (regulation 8(4)) can create cashflow strain and an enforceable debt even before the assessment work is complete.

Transitional enforcement variants

• Transitional provisions include a specific rule for assessments commenced but not completed before the commencement day (regulation 19), creating an enforceable $48,000 fee in defined circumstances. Regulation 18 also declares that fees do not apply to circumstances occurring before the commencement day, except as otherwise stated.

Because enforcement is framed as civil debt recovery with statutory interest and streamlined evidentiary rules for the Department, the practical enforcement regime is financial and judicial rather than criminal or administrative within these regulations.

The regulations are intrinsically linked to provisions of the Environmental Protection Act 1986 (WA) and to Commonwealth and other State statutes through definitions and cross‑references.

Dependence on Part IV of the Act

• The regulations implement cost recovery exclusively in relation to Part IV of the Act: referrals, assessments and implementation of proposals under Part IV are the events the Table addresses (regulation 4). Specific cross‑references to Act sections (for example, referrals under s 38, amendments under s 38C, derived proposals under s 38E, requests for additional information under s 38F and s 40(2)(a), minor works consent under s 41A(3), amended proposals under s 43A, amendments to conditions under s 45C, inquiries under s 46 and interim conditions under s 46A) tie the chargeable events to the Act’s procedural mechanics (regulation 4 Table).

Commonwealth EPBC Act

• The definition of "accredited assessment process" references the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) section 87(1) and acknowledges that an assessment under Part IV might be used for a Commonwealth assessment (regulation 3). Regulation 5(3)(c) explicitly allows the assessment fee method to consider whether a proposal or an aspect is assessed under an accredited assessment process. The framework therefore contemplates interaction, and possible duplication or substitution, where WA processes are used for Commonwealth purposes or where bilateral/cooperative arrangements exist.

Biodiversity Conservation Act 2016

• Several definitional links borrow terminology from the Biodiversity Conservation Act 2016: "ecological community" and "species" reference that Act for meaning (regulation 3). The examples provided for matters relevant to fee calculation (regulation 5(3)(o)) explicitly reference threatened species or ecological communities as defined by the Biodiversity Conservation Act and the EPBC Act, and Priority categories from Conservation Codes, thus aligning the fee‑calculation method with species and community designations found in that Act.

Public Sector Management Act and agency definitions

• The term "agency" is taken from the Public Sector Management Act 1994 s 3(1) (regulation 3). The "Departmental staff" defined as persons referred to in s 22 or 24 of the Act anchors the human resources part of "costs" to personnel categories set out by the Act (regulation 3). The costs definition also contemplates funding other agencies’ staff to assist in assessments, linking to inter‑agency arrangements.

Part VIIIA and bilateral matters

• Regulation 5(3)(b) allows the assessment calculation method to account for whether the proposal, or an aspect of it, is dealt with as a bilateral matter under Part VIIIA of the Act. That anticipates situations where a Commonwealth or other jurisdictional process interacts with WA processes in ways that may affect staff time and administrative complexity.

Procedural rights grounded in the Act

• The operative triggers for fees are authority and ministerial actions under Part IV. For example, the Authority’s preparation of a scoping document under s 40(3) is included in the matters a fee method may take into account (regulation 5(3)(e)), and the statutory steps for public availability, public inquiry, and assessment reports under s 40 and s 44 of the Act are referenced directly as components of the assessment fee methodology (regulation 5(3)(d),(f),(g),(h),(i),(j),(k),(l)).

Consistency with other revenue recovery provisions

• The regulations create civil recovery powers and an evidentiary certificate (regulation 16), which may overlap with other Commonwealth or State laws governing recovery of public debts. No express inconsistency is declared, but the civil recovery mechanism is a standard technique compatible with other debt recovery regimes.

Temporal interaction with commencement and transitional rules

• The transitional provisions (regulations 17-20) interact with pre‑commencement assessments and circumstances that began under the Act before the regulations commenced, providing specific carve‑outs and a schedule for when particular fees start to apply. Regulation 19 creates a particular fee ($48,000) for assessments commenced but not completed prior to commencement, once a report is provided.

Taken together, the regulations do not operate in isolation; they anchor their fee triggers, definitions and methods to the Part IV processes of the Environmental Protection Act, they accommodate interactions with Commonwealth EPBC processes and species/community definitions under the Biodiversity Conservation Act, and they rely on the Department’s published materials and standard public sector concepts such as "agency" for operational fit with other statutes.

This compilation provides the original enactment details and no subsequent amendments within the text presented. The statutory metadata included in the compilation table records the instrument’s initial publication and commencement:

• Citation and publication: Environmental Protection (Cost Recovery) Regulations 2021, SL 2021/217, published 17 December 2021 (compilation table).
• Commencement: Part 1 (preliminaries) commenced 17 December 2021 (the day of Gazette publication); the rest of the regulations commenced the following day, 18 December 2021 (regulation 2 and compilation table).
• Transitional commencement day: The regulations define "commencement day" in the transitional Division 5 as 1 January 2022 for the purposes of the transitional rules (regulation 17).

Transitional rules and staged application

• Regulation 18 sets out that fees under these regulations do not apply to circumstances that occurred before commencement day, and that item 5’s assessment fee does not apply to a proposal for which a decision to assess was made before commencement day, except as modified by regulation 19. Regulation 19 addresses assessments that were under way prior to commencement day by imposing a $48,000 fee where a report is given to the Minister after commencement. Regulation 20 delays application of annual compliance fees (regulation 11) for financial years commencing before 1 July 2023.

Review obligation

• The instrument obliges the CEO to review the Division 1 fees "as soon as practicable after 1 July 2023" and to prepare a report for the Minister addressing the extent to which fees under Divisions 1 and 2 recover the Department's costs in receiving and assessing proposals (regulation 21). That review requirement is the only forward‑looking provision touching on potential legislative amendment or policy change embedded in the instrument.

No amendments recorded in this compilation

• The compilation table and notes show only the original instrument, SL 2021/217, and its commencement details. No subsequent amending instruments, updated compilation entries or replacement provisions are included in the material provided.

Practical inference for users

• Because the regulations require the CEO to publish a method on the Department’s website (regulation 5), practitioners should monitor both the legislation and the Department’s website for changes to the published method or administrative guidance that might alter assessment fee calculations. The statutorily mandated review after 1 July 2023 also signals a likely administrative or policy response during or after that review, but this compilation contains only the obligation to conduct and report the review, not the outcome.

In the absence of later legislative amendments recorded here, the structure, fees and mechanisms described in the body of the regulations are the operative legal framework as of the commencement dates noted in the compilation table.

The instrument, as compiled, does not name or summarise any judicial decisions or litigation relating to these regulations. The text contains no citations to case law or described legal challenges, and no litigation history is recorded in the compilation notes provided.

Implications and potential dispute loci (grounded in the text)

• While the regulations themselves do not record cases, they create several statutory mechanisms that are likely to be the subject of dispute in practice. Those mechanisms include:
  • The CEO’s publication and application of the assessment fee method (regulation 5): disputes may arise over whether the correct "most recently published" method was applied to a referral and whether the method appropriately and transparently accounted for the factors listed in regulation 5(3). The regulations require invoices to state how the assessment fee or estimate was determined (regulation 8(7)), which provides an avenue to test the CEO’s basis in court.
  • Compliance priority rating determinations (regulation 12): annual fees depend on the rating, and invoices must disclose how the rating was determined and when (regulation 11(6)). Litigation could focus on the correctness or reasonableness of a rating decision or the adequacy of disclosure.
  • External costs and disclosure (regulation 10): the CEO must give an invoice setting out the purposes for which costs were incurred and provide copies of original invoices on request (regulation 10(3)-(4)). Litigation could concern whether external costs invoiced to a proponent were genuinely incurred and reasonably necessary.
  • Recovery by certificate (regulation 16): the statutory role of a CEO certificate as "sufficient evidence" of sums owing is likely to feature in recovery proceedings; contested proceedings would test evidentiary sufficiency and possibly challenge the quantum or characterization of charges.

Absence of recorded litigation in the source

• The compilation does not supply any cases, appeals or legal analysis. Practitioners must therefore rely on the statutory text and any subsequent case law or administrative decisions published elsewhere to understand how courts or tribunals interpret the CEO’s discretion, the published method, the evidence requirements in recovery actions, and other contentious aspects.

Because the document does not include litigation history, the summary above identifies plausible points of legal contention strictly arising from the regulatory mechanics and disclosure/decision duties set out in the instrument, without alleging that particular disputes have occurred.

The regulations contain a number of concrete procedural and financial traps for proponents and advisers. These are specific points where legal or commercial outcomes may be unintuitive unless the text is read closely.

Flat fees versus variable costs

• Item 5 of the Table requires an assessment fee equal to $16,000 plus the amount determined by the CEO under regulation 5 for the Department’s costs in assessing the proposal (regulation 4, item 5). Practitioners sometimes assume a single fixed charge applies; the extra CEO‑determined component can substantially increase cost exposure. The CEO must publish a method on the Department’s website and apply the most recent method prior to referral (regulation 5(1)-(2)); proponents must therefore check the method at the time of referral to estimate fees.

80% upfront instalment and estimate dynamics

• Regulation 8 requires the CEO to determine an estimate as soon as practicable after the Authority decides to assess and to invoice 80% of that estimate, payable within 28 days (regulation 8(3)-(4)). This can create immediate cashflow pressure for proponents and raises the risk of over‑estimation; if the estimate exceeds the eventual assessment fee, the excess must be refunded (regulation 8(6)), but refund timing is not specified beyond the requirement to issue an invoice for the amount payable. Practitioners must budget for a large upfront payment and ensure the invoice contains the required breakdown (regulation 8(7)).

Third‑party referrals can lead to proponent liability

• If a proposal is referred by a party other than the proponent, the referral fee is payable only if the Authority decides to assess; but when that decision is made, the proponent is liable and must pay within 28 days of notice (regulation 6(2)-(3)). Proponents should monitor third‑party referrals because they can be landed with a fee even where they did not initiate the referral.

External costs recoverable on production of invoices

• External costs (consultants, travel) are excluded from the Department’s "costs" definition (regulation 3) and separately recoverable up to the amount incurred (regulation 10(1)). While the CEO must set out the purposes for which costs were incurred (regulation 10(3)) and supply original invoices if requested (regulation 10(4)), the Department may still seek recovery of significant consultant fees or travel costs. Proponents negotiating contracts with consultants should anticipate the potential for those costs to be charged through to them.

Annual compliance fee timing and rating uncertainty

• Annual fees apply for each approved proposal "in effect immediately before the commencement of the financial year" (regulation 11(1)). A proposal approved mid‑year still attracts the fee for the following financial year if it is "in effect" at the relevant time. If no compliance priority rating is in effect immediately before the start of a financial year, the rating defaults to Low (regulation 11(4)), which may produce uncertainty if ratings are pending. Importantly, invoices must state how the rating was determined and when (regulation 11(6)), but the CEO has discretion to set ratings and therefore the fee tier can change.

CEO discretion on waivers and extensions

• The CEO may refund, reduce or waive fees on a case by case basis (regulation 13) and may grant extensions or postponements, even after a fee has become payable (regulation 14). While these powers provide relief avenues, they are discretionary and unstructured in the regulations, creating uncertainty and the necessity for formal applications or negotiation with the Department.

Interest calculation linkage to RBA

• Interest is set at the RBA cash rate target plus 3 per cent as at the first day the amount became outstanding (regulation 15). This produces a variable interest rate that could rise quickly if monetary policy tightens. Interest does not compound on interest, but the principal can accrue significant carrying costs if payment is delayed.

Transitional and staged applicability

• Fees do not apply to circumstances occurring before the "commencement day" (1 January 2022) except as specifically provided (regulation 18). However, for assessments that were underway but not completed before commencement, a fixed $48,000 fee applies if the report is given to the Minister after commencement (regulation 19), and payment may be deferred to 1 July 2022 if otherwise payable earlier (regulation 19(4)). Also, annual compliance fees do not apply to financial years commencing before 1 July 2023 (regulation 20). Practitioners must map the timing of decisions and reports to these transitional rules to avoid unexpected charges.

Invoicing detail obligations as a compliance lever

• The regulations require invoices to include explanatory material: assessment fee invoices must set out how the fee was determined (regulation 8(7)), and annual fee invoices must set out the rating and the basis for it (regulation 11(6)). Proponents should use these disclosure obligations to obtain the necessary detail to contest or query invoices early.

No express consequences for non‑payment other than debt recovery

• The regulations do not state that the Department will suspend or refuse assessment activity because of non‑payment. Enforcement in the instrument is civil recovery, interest and the CEO certificate evidential device (regulation 16). If other provisions of the Act tie compliance to ongoing approvals or decision‑making, those links are not specified here and must be checked in the Act itself.

Given these mechanics, advisers should budget for large and sometimes staged cash payments, carefully monitor the Department’s website for the published assessment‑fee methodology, ensure invoice detail is obtained and retained, and consider negotiating consultants’ fees and disbursements with an eye to whether they may be passed on to the proponent via the external costs mechanism.

This section sets out practical, text‑based steps that proponents, legal advisers and compliance teams should follow to minimise uncertainty and manage cashflow and compliance risk under the regulations.

1. Identify the triggering event precisely

• Map the proposal’s lifecycle steps to the Table in regulation 4. Understand whether the action you are taking will attract a "payable on the day" fee (for example, applications under s 38C, s 38E, s 41A(3), s 43A, EMP submissions) or will be invoiced per a separate procedure (for example, referrals by others where the Authority decides to assess, item 1 when referred by a third party; regulation 6). Confirm whether a Ministerial or Authority request will trigger itemised fees (items 4, 6, 10, 12 and 13).

2. Check the Department’s published assessment‑fee method before referral

• Regulation 5(1) makes the CEO’s most recently published method determinative for item 5 assessment fees if published before the day the proposal is referred. Review the Department’s website for the published method, and document the method version in your submission file to avoid disputes about which method applied. If your proposal is complex, request an early, informal fee estimate or seek confirmation in writing from the Department on how the method will be applied.

3. Budget for the assessment‑fee instalment regime

• Anticipate the 80 per cent instalment requirement: when the Authority decides to assess, the CEO will invoice an 80 per cent estimate within a timeframe, payable within 28 days (regulation 8(3)-(4)). Ensure finance approvals and cash reserves or credit lines are available. Keep records of invoices and any accompanying explanation as the invoice must set out how the estimate was determined (regulation 8(7)).

4. Anticipate and manage external costs

• External costs (consultants, travel) can be invoiced to the proponent on production of invoices (regulation 10(1)-(4)). Negotiate consultancy and travel agreements with the potential for these costs to be challenged by the proponent; ensure consultants provide itemised invoices and documentation so the Department can rely on clear invoices when seeking recovery. If the Department invoices external costs, request the original invoices promptly as allowed by regulation 10(4).

5. Track compliance priority ratings and annual fees

• For approved proposals, the CEO will assign a compliance priority rating that determines the annual fee (regulations 11-12). Invoice must specify the rating and the basis for it. If no rating exists immediately prior to a financial year, the rating defaults to Low (regulation 11(4)). Seek confirmations of ratings, and where appropriate request a review or explanation so that annual fee burdens can be modelled accurately.

6. Use the CEO’s administrative discretion when appropriate

• If fee obligations are onerous or cashflow is constrained, apply to the CEO for a waiver, reduction or refund (regulation 13) or for a postponement or extension of payment (regulation 14). Ensure requests are in writing and document reasons, financial projections and remediation plans. If an extension is granted, the CEO must give written notice, which should be retained for compliance audit trails (regulation 14(2)).

7. Prepare for interest and recovery procedures

• Late payment attracts interest at the RBA cash rate target plus 3 percentage points from the date the amount became outstanding (regulation 15). To avoid compounded costs, treat a Department invoice as time‑critical and clear concerns by the payment due date or seek a formal extension. Maintain complete records of payments and communications to rebut any CEO certificate produced in a recovery action (regulation 16).

8. Use disclosure obligations to obtain detail

• Demand the detail that invoices must include: how assessment fees or estimates were calculated (regulation 8(7)), purposes for external costs (regulation 10(3)), original invoices (regulation 10(4)) and compliance rating bases (regulation 11(6)). These requirements provide the basis for administrative review, negotiation of charges, or litigation if necessary.

9. Manage timing and transitional rules

• For proposals or assessments spanning the transitional period, check regulations 18-20. Assessments decided before commencement day may be excluded from some fees; however, regulation 19 imposes a specific $48,000 fee in certain unfinished assessments where a report is provided after commencement. Planning schedules should account for these transitional timings.

10. Document everything and engage early with the Department

• Maintain a contemporaneous record of referral dates, Authority decisions to assess, invoices, CEO estimates, communications seeking extensions or waivers, and any purchases of external services that might be passed through as external costs. Early engagement with the Department to obtain clarifications or pre‑referral scoping on likely assessment complexity and cost drivers (e.g., public inquiry likelihood, number of key environmental factors, species/communities implicated,regulation 5(3)) can reduce later disputes.

11. Contractual allocation of risk

• If you are a proponent engaging consultants or sub‑contractors, allocate risk for potential external costs clearly in contracts. Consider indemnities, caps on reimbursable costs, and invoice documentation obligations to streamline any Departmental audit or proponent contest of external costs. Include payment milestones that align with the Department’s invoicing cycle to avoid unexpected outlays.

12. Monitor the CEO’s review and any methodological changes

• The CEO must review the fees under Division 1 after 1 July 2023 and report to the Minister (regulation 21). Monitor the Department’s website and the public record for the review report and any subsequent changes to the published method or fee schedule that may affect future proposals.

Following these steps will not eliminate the need for judgement in individual cases, but they implement the disclosure, payment and engagement obligations embedded in the regulations and reduce the chance of cost surprises, interest accrual or rushed legal dispute.