Introduction
By Felicity Rourke and Amelia Dixon-Weidner
The Minister for Planning and Infrastructure, the Hon Brad Hazzard MP has today announced changes to Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) which take effect immediately.
The changes mark the commencement of the new State Government's promise to repeal Part 3A, by excluding certain types of development from the operation of Part 3A, and introducing new transitional arrangements for projects remaining under Part 3A, pending legislative repeal. The changes have been made under the State Environment Planning Policy (Major Development) Amendment 2011 (Amending SEPP).
A new process for determining when a project is of "genuine State significance" and how these projects will be determined is currently being developed by the Government for release, reportedly within the next two months. In the interim, the Part 3A process will continue to operate in the context of the changes to Part 3A commencing today.
What are the key changes?
- New residential, retail, commercial and coastal projects can no longer be assessed as "major projects" under Part 3A and will revert to the DA assessment process under Part 4 of the EP&A Act, to be dealt with by Councils or Joint Regional Planning Panels (JRPP).
- For existing residential, commercial, retail and coastal projects being dealt with under Part 3A, transitional arrangements have been put in place. Some of these projects will continue to be assessed under Part 3A, while others will have their Part 3A status revoked.
- For projects whose Part 3A status has been revoked, the projects will generally be returned to Councils for assessment and determination by the relevant JRPP.
- Other classes of declared major projects such as major road, rail, mining, chemical and manufacturing, agricultural, hospital projects and other significant infrastructure proposals of "genuine State significance" will remain under the Part 3A approval process.
- For those major projects which remain in Part 3A, the Minister will delegate his approval role to either the Planning Assessment Commission (PAC) or senior officers of his Department. The Minister has said that the only projects which will be determined by the Minister himself will be those put forward by a public authority.
Details of the reforms
All residential, commercial and retail development valued at over $100m, and coastal subdivisions not yet accepted under Part 3A or for which assessment requirements (referred to as Director-General's Requirements - DGRs) have not been issued or whose DGRs are more than 2 years old, will not be assessed under Part 3A.
As a result, 63 projects currently being assessed under Part 3A will removed from Part 3A and will revert back to councils and the relevant JRPP for determination.
Residential, commercial, retail and coastal projects which have progressed in the Part 3A process will remain within the Part 3A system pending legislative repeal. Specifically, this will be the case for residential, commercial and retail developments and coastal subdivisions which:
- Have received DGRs that are less than 2 years old; or
- Where the proponent has already lodged an environmental assessment with the Department.
This will be the case for 102 applications that have substantially progressed through the Part 3A process and which will remain as "major projects" to be determined by the PAC.
A list of the affected projects in each category has been published by the Minister.
Revoked and undeclared projects will generally be returned to councils for assessment and determination by the relevant JRPP. The Department of Planning and Infrastructure has advised that declarations for projects for which DGRs were not issued on or before 8 April 2011 are revoked, and declarations for projects were there is an approved concept plan and where the only DGRs that were issued on or before 8 April 2011 were in respect of the concept plan application, are revoked.
The Department has confirmed it will refund any fees paid by proponents for the assessment of projects which no longer fall within Part 3A.
The existing moratorium on the declaration of new Part 3A projects remains – in other words, no new Part 3A projects will be declared, in any of the classes of development which remain identified as Part 3A projects.
Projects which have already been determined under Part 3A can continue to be modified under the relevant provisions of Part 3A.
The Minister has announced that new projects requiring urgent assessment may, in the interim, be authorised by the Director-General for lodgement with the local council, so long as the council is willing and has the capacity to assess the application in a timely manner. The Amending SEPP provides a mechanism for such projects to be certified as "suitable for assessment" in this way and excluded from Part 3A.
Analysis
In the short term, these reforms will result in a significant increase in workloads for councils and JRPPs. Proponents will need to carefully consider and ensure compliance with the assessment requirements which will apply to projects as a result of their "transfer" to Part 4 of the EP&A Act.
It will also mean that the workload of the PAC will increase, as it can be expected to determine the vast majority of the projects which remain in Part 3A. Whilst some Part 3A applications may be determined by Departmental officers under delegation, these are only expected to be non-controversial or less significant applications where there are fewer than 25 public submissions and where the relevant Council does not oppose the project.
One significant consequence of these reforms is that they effectively remove the opportunity for residential, commercial, retail and coastal projects to be approved where they are inconsistent with the current planning controls. Under Part 3A, the Minister could approve projects even where the relevant Environmental Planning Instrument prohibited the proposed development. However, these types of projects will now be required to be assessed under the provisions of Part 4 of the EP&A Act, where no equivalent power is available to Councils or JRPPs.
Whilst today's announcements resolve some of the uncertainty about the approval processes for major projects in the short term, it is clear that further, significant reforms will follow. The Department has also announced today that it is examining the thresholds for development which is referred to JRPPs for determination, to ensure that JRPPs deal only with "genuinely regionally significant development", and that further information will be provided in due course. This may mean that some of the categories of development which were removed from Council decision-making upon the introduction of the "regional development" process, will be returned to Councils.
We will continue to monitor these reforms closely. In the meantime please contact any of the partners in our Environment and Planning practice for further information.
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