Part 3A (Major Infrastructure and Other Projects) of the
Environmental Planning and Assessment Act 1979
(EP&A Act) was repealed shortly after the
Coalition Government came to power in 2011.
The decision to repeal Part 3A was part of the Government's
election commitment to return a broad range of decision-making
powers to local communities.
On its repeal, Part 3A was replaced by two assessment pathways:
State significant development (SSD) and State
significant infrastructure (SSI).
Despite its repeal, transitional arrangements in Schedule 6A to
the EP&A Act still enable existing Part 3A project approvals to
be modified under section 75W of the EP&A Act.
The modification power for project approvals is much wider than
the corresponding power to modify other development under section
96 of the EP&A Act.
For example, under section 75W the Minister's approval for a
modification is not required if the project, as modified, will be
consistent with the existing approval.
There are also no express limitations on the Minister's
power to modify, or any preliminary steps that need to be taken
before a decision is made. By contrast, for a section 96
modification, the applicant must demonstrate that the proposed
modification is substantially the same development. Also, there are
a number of procedural steps that must be completed before the
consent can be modified.
The Part 3A modification provisions further require
consideration of the proposed modification against the development
currently approved (as previously modified), rather than the
development as originally approved, as is the case with section
In March 2016 the Minister for Planning
(Minister) announced that that the Government
intended to discontinue Part 3A by preventing the ongoing use of
the former modification powers.
On 9 January this year the Minister released a summary of
proposals and a public consultation draft of the Environmental
Planning and Assessment Amendment Bill 2017 (draft
Bill) to amend the EP&A Act to (amongst other things)
require certain existing project approvals to be modified through
Under the proposed savings and transitional regime set out in
the summary of proposals:
the current transitional arrangements for Part 3A projects in
the EP&A Act will be repealed and replaced by transitional
arrangements in the Environmental Planning and Assessment
depending on the type of Part 3A project, existing approvals
will become either SSD or SSI;
project approvals for things like residential, commercial and
retail development, coastal development, manufacturing, mining, and
petroleum and extractive industries will become SSD and will need
to be modified under section 96;
project approvals for things like health, education and
community services and transport, energy, water and
telecommunications projects will be transitioned to SSI;
applications for modifications under section 75W will be
received for a period of two months following the passage of the
for larger modifications, where the Secretary's
environmental assessment requirements have already been given, the
application will be determined under section 75W provided that the
application is lodged within 12 months; and
where the modification of a former Part 3A consent is lodged
after the two month window, the modification will be assessed
against the development at the time it is transitioned.
For those who have the benefit of existing project approvals,
the changes will necessitate an awareness of the timeframes. Those
affected will also need to decide now whether to seek to modify
their project approvals relying on the existing section 75W powers,
or to factor in the likelihood that what can be achieved as a
modification will have to fit within the narrower modification
power in section 96 of the EP&A Act.
The summary of proposals to amend the EP&A Act is on public
exhibition until 10 March 2017.
Copies of the summary of proposals and public consultation draft
Bill can be found
If you need any assistance with modification applications our
Planning and Environment team are happy to assist.
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader's
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your circumstances please contact one of the named
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