The newly elected NSW Government has wasted little time
introducing its foreshadowed infrastructure reforms. On 27 June
2011, the Infrastructure NSW Act 2011 (NSW) (the
Act) received assent and commences upon proclamation. The
Act is aimed at streamlining the way New South Wales deals with
major infrastructure projects.
The central feature of the Act is the creation of a new state
body called 'Infrastructure NSW', which the Premier has
described as 'innovative, groundbreaking and a new body to
sharpen NSW's competitive edge to achieve economic growth
through strategic economic investment'.
Infrastructure NSW is designed to take the politics out of
infrastructure decision-making and will have a chairperson and an
expert board that is made up of five persons from the private
sector, the Chief Executive Officer (CEO) of
Infrastructure NSW and the Director-Generals of the Department of
Premier and Cabinet, Trade, Investment, Regional Infrastructure and
Services, Department of Planning and Infrastructure and the
Secretary of the Treasury. Former Liberal Premier, the Hon. Mr Nick
Greiner will be appointed as the founding chairperson once the Bill
Strategic direction setting
The board will be primarily responsible for setting strategic
policy direction, which will involve infrastructure planning,
co-ordination, selection and the ultimate delivery of projects. The
Bill envisages that the board will set a '20-year
infrastructure strategy' together with 'five-year
infrastructure plans', which are designed to deal with
sequencing and project funding in line with annual state
The board will carry out its role without political interference
and if the Government rejects the board's strategic direction
or any recommendations that are made, then the Government will have
to be accountable to the electorate for its reasons to take a
The main functions of Infrastructure NSW under the leadership of
the CEO is to ensure the organisation plays an integral role to
develop a 'whole-of-state' approach in relation to
infrastructure projects that require the involvement of multiple
agencies. It is also incumbent upon the CEO to ensure
Infrastructure NSW is appropriately staffed with specialists from
both the private and public sectors and, where necessary, the CEO
may second, employ or contract persons on a needs basis for short-
and long-term projects. The CEO will answer directly to the
Project authorisation orders and 'step in' powers
The Act provides for the delivery of infrastructure projects
outlined in the 20-year strategy and five-year plans and
Infrastructure NSW will facilitate and co-ordinate with the
relevant agencies. However in relation to major projects that are
of high importance, the Premier will have the power to issue a
'project authorisation order', which will be a statutory
directive to Infrastructure NSW to 'step in' and take total
responsibility for the delivery of the project, though such power
is likely to be used on rare occasions.
What are major infrastructure projects?
The Act introduces a new project type to be known as a
'major infrastructure project', which is a project with a
capital investment value (CIV) of more than $100
million or is a project that in the opinion of the Premier is of a
'special kind' to warrant the co-ordination or involvement
of Infrastructure NSW.
This new CIV and 'special kind' approach is different to
the existing 'critical infrastructure project' and
'major infrastructure development' definitions under Part
3A of the Environmental Planning and Assessment Act 1979
(NSW) (EPAA), which are soon to be superseded with
the likely repeal of Part 3A. Notably, the environmental and
planning assessment requirements (including community consultation)
under the EPAA still apply to any project.
Federal funding submissions
Finally, another very important function of Infrastructure NSW
will be its co-ordination role in respect to funding submissions to
the Federal Government, including agencies such as Infrastructure
Australia, to ensure New South Wales receives an equitable share of
Commonwealth infrastructure funds.
This publication is intended as a general overview and
discussion of the subjects dealt with. It is not intended to be,
and should not used as, a substitute for taking legal advice in any
specific situation. DLA Piper Australia will accept no
responsibility for any actions taken or not taken on the basis of
DLA Piper Australia is part of DLA Piper, a global law firm,
operating through various separate and distinct legal entities. For
further information, please refer to www.dlapiper.com
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