Australia: Repeal of Part 3A of the Environmental Planning and Assessment Act

Last Updated: 11 July 2011
Article by Jennifer Mee, Larissa Hauser, Scott Monin, Robert Savage and Renee Thomlinson

Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 (NSW) (Repeal Act) has recently been passed by both houses of the New South Wales Parliament.

This Act repeals Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act), replacing it with an alternative assessment regime for development which is of significance to the State. This new assessment regime comprises two key frameworks – State significant development and State significant infrastructure. All development which does not fall within either framework of State significance will be subject to assessment by the relevant local council.

The Repeal Act is not yet in force and will commence on a day to be set by proclamation.

What is State significant development?

State significant development (SSD) is development declared as such by a State environmental planning policy (SEPP). The Department of Planning and Infrastructure (Department) has released a policy statement outlining the expected classes of SSD which include certain electricity generating works, waste and resource management facilities, mining activities, intensive livestock agriculture, geosequestration and manufacturing industries.

SSD classes will be finalised in a SEPP entitled State Environmental Planning Policy (State and Regional Development) 2011 to be published after the new legislation commences.

In an effort to confine the SSD assessment regime to projects of genuine State significance:

  • the number of proposed SSD classes is lower in comparison to the Part 3A system
  • the proposed capital investment value thresholds for these classes are generally higher in comparison to the Part 3A system
  • residential, commercial and retail projects which fell within Part 3A as a result of their capital investment value are now excluded from the SSD system and accordingly will be assessed by the relevant local council.

A project may also be categorised as SSD if it is to be conducted at a site identified as being of State significance in terms of its development potential or strategic importance. The Department has indicated that such sites will include Sydney Opera House, Sydney Olympic Park and Luna Park as well as certain development within Barangaroo, the Bays Precinct and a number of other sites. Again, the final list will be contained within State Environmental Planning Policy (State and Regional Development) 2011.

In addition to SSD classes and SSD sites, the new legislation enables the Minister to declare or "call in" a project as SSD, but only where the Minister has obtained and made publically available advice from the Planning Assessment Commission (PAC) concerning the State significance of the project.

What are the key features of the assessment regime for State significant development?

SSD will be assessed in accordance with Part 4 of the EP&A Act (which governs development assessment by local councils). The Repeal Act also introduces a new Division 4.1 to Part 4 which contains additional requirements, for example regarding public notification and consultation, including that an SSD application be exhibited for at least 30 days.

The new provisions also prevent development consent from being granted if the development is wholly prohibited by an environmental planning instrument. Development consent may be granted if the development is only partly prohibited.

The Minister for Planning and Infrastructure (the Minister) is the consent authority for SSD, however this function will be delegated in respect of development proposed by private sector proponents to either the PAC or the Department. Accordingly, the Minister will generally only be responsible for assessing SSD projects where the proponent is a public agency or public-private partnership.

What is State significant infrastructure?

The second aspect of the new regime deals with State significant infrastructure (SSI). SSI is development declared as such in a SEPP, being either large-scale infrastructure projects or development carried out by a State agency and which requires an Environmental Impact Statement (EIS).

The Department has proposed classes of SSI including port facilities, rail infrastructure, pipelines and water supply systems. Again, the final list will be contained within State Environmental Planning Policy (State and Regional Development) 2011.

What are the key features of the assessment regime for State significant infrastructure?

SSI projects will be assessed in accordance with the new Part 5.1 which is set out in the Repeal Act. In short, a proponent must submit an application as well as an EIS (which will be made publically available) and any other reports required by the Director-General of the Department. The Director-General is also required to prepare a report which must be considered by the Minister during the decision making process.

Similarly to Part 3A, the Minister has the ability to declare an SSI project to be critical State significant infrastructure (where the Minister considers the project to be essential for the State based on economic, environmental or social factors), however this no longer extends to SSD. A number of provisions will not apply to critical State significant infrastructure, including in relation to appeals processes.

The Minister is the consent authority for projects falling within the SSI framework and will generally determine SSI applications, however there is scope for this function to be delegated to the Department for less controversial applications.

What is the new assessment regime expected to achieve?

The repeal of Part 3A and the introduction of a new assessment regime for projects of State significance are designed to limit the involvement of the State in assessing development applications to projects of genuine significance to the State (and accordingly, return responsibility for development which is not of State significance to local government).

As a result of the changes it will be more difficult for a project to qualify as SSD or SSI unless there is significant:

  • public benefit;
  • economic advantage to the State or national economy;
  • environmental impact or hazard; or
  • cross-jurisdictional elements,

which is expected to lead to a 50% reduction in the number of development assessments conducted by the State.

How do the transitional arrangements operate?

The Repeal Act makes provision for transitional arrangements in respect of Part 3A projects.

Part 3A will continue to apply to "transitional Part 3A projects", being approved projects, projects for which environmental assessment requirements were notified or adopted before the repeal of Part 3A or those declared as such under the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation).

Development to which Part 3A applied immediately before its repeal may be declared SSI and will then be dealt with under the SSI framework. There is also scope for projects in respect of which a Part 3A application was lodged to now be assessed under the SSD regime, but only if the project falls within an SSD class and does not constitute SSI or a transitional Part 3A project.

Further details concerning the transitional arrangements will be contained in amendments to the EP&A Regulation.

Other changes under the Amendment Act

The Repeal Act also provides for:

  • changes in respect of the membership and operation of the PAC, including public hearings for significant decisions
  • changes in respect of Joint Regional Planning Panels which assess projects of regional significance, including increasing the threshold amounts for projects which regional panels may assess.

Next steps

Substantial details regarding the new assessment regime and the transitional arrangements are yet to be released. As highlighted above, details are expected to be contained in:

  • State Environmental Planning Policy (State and Regional Development) 2011 – in respect of the classes of SSD and SSI as well as the sites where some or all development will constitute SSD
  • amendments to the EP&A Regulation – in respect of further details and procedures regarding the new assessment regime and the transitional arrangements for existing Part 3A projects.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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