The major projects legislation in NSW will change on 1 October 2011. Part 3A of the Environmental Planning and Assessment Act 1979 (Act) will be repealed and a new system of State significant development (SSD) and State significant infrastructure (SSI) will take its place. The Amending Act introduces provisions that generally mirror this two-stream approach. Some aspects of the former Part 3A regime are carried over to the new system as well as the introduction of a number of new concepts.

SSD

A new Division 4.1 in Part 4 of the Act will relate to SSD. Development can be declared as SSD by:

  • declaration in a State environmental planning policy or
  • order published in the NSW Government Gazette.

State Environmental Planning Policy (State and Regional Development) 2011 (SEPP) which has now been notified declares development to be SSD by identifying particular categories of development and specific sites. In some cases there are thresholds on particular development such as the capital investment value.

The Minister's new order making power to "call in" SSD can only be exercised if the Minister has obtained and made publicly available advice from the NSW Planning Assessment Commission (PAC) about the state or regional planning significance of the proposed development.

The Minister will now grant development consents for SSD in a process similar to the processing of council development applications which will include public exhibition of the application for at least 30 days. Development that is wholly prohibited must be the subject of a concurrent rezoning and must be determined by the PAC.

SSI

A new Part 5.1 of the Act will relate to SSI. Development can be declared SSI by:

  • declaration in a State environmental planning policy or
  • order of the Minister published on the NSW legislation website.

The type of development that can be declared SSI through a State environmental planning policy is:

  • "infrastructure" as defined under the new section 115T or
  • development that would be an activity under Part 5 and in the opinion of the proponent would require an environmental impact statement or
  • specified development on specified land.

The category of "specified development on specified land" can also be declared by order of the Minister that directly amends a State environmental planning policy.

Similar to SSD, the SEPP declares development to be SSI by identifying particular categories of development. It also "specifies" some development as SSI. Again, in some cases there are thresholds on particular development such as the capital investment value.

The SSI provisions under the new Part 5.1 generally mirror the previous provisions of Part 3A. This includes the need to prepare and notify for at least 30 days an environmental assessment for the development.

Transitional issues

There are significant and detailed savings and transitional provisions in both the Act and the transitional regulations.

Appeal rights

Appeal rights to the Land and Environment Court are unchanged in substance.