On 24 August 2012, significant amendments were made by the NSW
Government to the transitional arrangements for major project
applications currently before the Department of Planning and
Infrastructure (Department) and which continue to
be assessed under the repealed Part 3A of the Environmental
Planning and Assessment Act 1979 (EP&A Act). This update
explains the new, tighter deadlines which have been imposed in
relation to the assessment of such projects (known as
Transitional Part 3A Projects), and the
potentially severe consequences which flow if they are not met.
Overview
Part 3A was repealed on 1 October 2011, and a transitional
regime allowed two years from that date for proponents to submit an
environmental assessment. These amendments bring forward by 10
months the 'sunset date' for the submission of assessment
documents by proponents, to facilitate the Government's aim of
completing the assessment of all Transitional Part 3A Projects by
30 June 2013. This is 12 months earlier than originally
scheduled.
The amendments:
require proponents to lodge an environmental assessment by
30 November 2012 (10 months earlier than the
previous deadline); and
introduce deadlines for proponents to submit:
a response to submissions – within 30 days;
a preferred project report – within 60 days; or
a revised statement of commitments – within 60
days;
if such a document has been required by the Director- General of
the Department (Director-General).
Submission of environmental assessments
The amendments require all environmental assessments for
Transitional Part 3A Projects to be lodged prior to 30 November
2012. The Director-General can extend this date by notifying the
proponent in writing, however the Department has indicated that
this will be "done sparingly and only when
justified", where a "compelling
justification" is made.
If the environmental assessment is not lodged by 30 November
2012, and the date for lodgement has not been extended by the
Director-General, that project will automatically stop being
considered as a Transitional Part 3A project and will no longer be
assessed under Part 3A.
In this circumstance, the proponent will have to lodge a new
application under Part 4 or 5 of the EP&A Act, depending on the
type of project. There is no provision in these amendments for the
proponent to be "credited" for work done within Part 3A,
although a mechanism may be available to achieve this under other
provisions of the EP&A Act.
Submission of responses
Part 3A empowers the Director-General to require a proponent to
submit a response to submissions, a preferred project report or a
revised statement of commitments, and this power is frequently
exercised. The amendments impose new, tight deadlines for the
submission of these responses.
If the relevant response is not given by the proponent within
the specified time, the project application may be approved or
refused by the Minister for Planning and Infrastructure in the
absence of that response.
The time limits are:
A response to submissions must be submitted within 30 days of
being notified;
A preferred project report must be submitted within 60 days of
being notified; and
A revised statement of commitments must be submitted within 60
days of being notified.
For proponents who had already been notified of such a
requirement prior to the amendments commencing, the above time
limits will apply as if 24 August 2012 was the
relevant notification date.
The Director-General can extend these time limits, however
extensions will not automatically be granted.
Further information on the repeal of Part 3A can be found
here.
Please contact us if you require advice in relation to the
implications of these amendments for a specific Transitional Part
3A Project.
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.
Specific Questions relating to this article should be addressed directly to the author.
The subject for this conference session "ESD and the Sustainable Planning Act 2009 - Balance or Precaution?" implies that there may be a question as to whether the principle of "ecological sustainability", which is embedded in the statutory purpose of the Sustainable Planning Act 2009 (SPA)1, has altered in some way. This paper examines that question
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