The O'Farrell Government has wasted little time winding back Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA). The Minister for Planning and Infrastructure, The Hon Brad Hazzard MP has ordered transitional arrangements be put in place pending the repeal of Part 3A.
Minister Hazzard has said that he is determined to carry out the Government's pre-election pledge to 'scrap Part 3A of the Planning Act'.
As part of the Government 'shake-up' of the planning system, 63 project applications will be sent to local council for assessment and Joint Regional Planning Panel determination. 102 projects that have already progressed in the system will be referred to the Planning Assessment Commission to determine.
What are the changes?
In summary, the following transitional arrangements came into force on 13 May 2011:
- Residential, commercial and retail development valued at over $100m and coastal subdivisions that have either not yet been accepted under Part 3A, or for which assessment requirements either have not been issued or are more than two years old, will have their Part 3A status revoked.
- Residential, commercial, retail and coastal projects that have progressed beyond this stage will remain within the Part 3A system pending its legislative repeal.
- Revoked and undeclared projects will generally be returned to the local council for assessment and determination by the relevant Joint Regional Planning Panel.
- The Department of Planning and Infrastructure will establish a team to assist local councils with the assessment of these projects where necessary.
- Any fees paid by proponents for the assessment of these projects under Part 3A will be refunded.
- All applications for other project types (such as mining, chemical and manufacturing, agricultural and significant infrastructure proposals) that are already in the Part 3A system will continue to be assessed and determined under Part 3A pending its legislative repeal.
- The existing moratorium on the declaration of new Part 3A projects will continue.
- New projects that require urgent assessment may, in the interim, be authorised by the Director-General for lodgement with the local council, as long as the council is willing and has the capacity to assess the application in a timely manner.
No more project declarations
The Government has also made it clear that no more project declarations will be made until Part 3A is repealed and replaced with a new regime designed for projects that are truly state significant.
Amending SEPP - relodgement with local council
State Environmental Planning Policy (Major Development) Amendment 2011 introduced on 13 May 2011 amends the 'Major Development SEPP'. The effect of the amendment allows the urgent assessment and determination of projects pending the repeal of Part 3A. Under the amendment, proponents can request the Director General to issue a certificate allowing them to relodge the application with the relevant local council for assessment under Part 4 of the EPAA. The certification means that a local council can evaluate the merits of an application and make a recommendation to the relevant Joint Regional Planning Panel for determination.
Determination of remaining projects in the system
All remaining unrevoked 'private' proponent Part 3A projects applications in the system that are not residential, commercial, retail or a coastal subdivision will continue to be assessed by the Department of Planning and Infrastructure and be generally determined by the Planning Assessment Commission. All remaining 'public' proponent Part 3A project applications made by NSW State Government agencies will be determined by the Minister.
For any of the remaining 'private' or 'public' project applications in the system, the public exhibition process will continue with a minimum 30 days exhibition period to allow the community to make submissions.
Modification of determined projects
In relation to modification application for projects under section 75W of the EPAA, any project previously determined can still be modified under the section.
How we can assist proponents
For any private proponent that has had the status of its project application changed and referred to a local council for assessment, much work will need to be done to work with council officers to explore options to have project proposals amended to accord with local planning controls.
No doubt there will be many project applications that will need to be substantially changed to meet LEP and DCP requirements. Alternatively, proponents may also need to consider the prospect of discussing a voluntary planning agreement with their local council or even a rezoning of the land to accommodate the type of proposed land use.
Our team of specialist planning lawyers can assist proponents navigate their way through the various options that need to be considered under these transitional arrangements.
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This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.