The recent gazettal of the Environmental Planning and Assessment Amendment (Public Authorities) Regulation 2015 (NSW) (Amendment Regulation) may have been intended to streamline the NSW planning regime in respect of certain types of development carried out on University land, but it appears to provide only limited assistance in providing Universities with the ability to assess development carried out on University land.
In brief, it seems likely that the practical effect of the Amendment Regulation may be limited to allowing Universities to be a determining authority under Part 5 of Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) in respect of limited classes of development, thereby allowing the Universities to assess the environmental impact of that development when carried out on University land by other public authorities, but will not allow a University to assess the environmental impact of that development carried out by that University. This would seem to be of limited benefit to Universities.
The Amendment Regulation allows 10 of the 11 NSW Universities recognised under the Higher Education Act 2001 (NSW) to carry out environmental impact assessment functions required under Part 5 of the EP&A Act of development on University land that does not require development consent under the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP). Under the Infrastructure SEPP, only certain types of development carried out by public authorities are able to be carried our without development consent.
Unfortunately, the Amendment Regulation leaves real doubt as to whether a University is a 'public authority' for the purpose of the Infrastructure SEPP and for the purposes of the EP&A Act more generally.
Furthermore, the Amendment Regulation – which as stated above is silent on whether the Universities are public authorities for the purposes of the EP&A Act generally – could even strengthen the argument that Universities are not public authorities for those purposes.
Development without consent under the Infrastructure SEPP
It is likely that the Amendment Regulation will be most relevant to development carried out under clause 29 of the Infrastructure SEPP which permits certain limited types of development to be undertaken without consent, but only if that development is carried out by or on behalf of a public authority. The Infrastructure SEPP also contains other provisions permitting public authorities to carry our development without consent, such as development for the purpose of a solar energy system under clause 36(3), but these provisions are of lesser relevance to most Universities.
Clause 29 of the Infrastructure SEPP allows for the following types of development to be carried out without consent by or on behalf of a 'public authority' on land in a 'prescribed zone' in connection with an 'existing educational establishment' (which is expressly defined to include Universities):
- construction, operation or maintenance, more than 5m from any property boundary, of:
1.1. a library or an administration building that is not more than one storey high;
1.2. a portable classroom that is not more than one storey high;
1.3. a permanent classroom that is not more than one storey high to replace an existing portable classroom and that is used for substantially the same purpose as the portable classroom;
1.4. a tuckshop, cafeteria or bookshop to provide for students and staff that is not more than one storey high;
1.5. a sporting field, tennis court, basketball court or any other type of court used for sport, and associated awnings or canopies, if the development does not involve clearing of more than 2 hectares of native vegetation;
1.6. a car park that is not more than one storey high;
1.7. a toilet block;
1.8. if the development is on bushfire prone land or if the educational establishment is, or contains, a heritage item—an outdoor learning or play area and associated awnings or canopies;
- minor alterations or additions, such as:
2.1. internal fitouts;
2.2. alterations or additions to address occupational health and safety requirements or to provide access for people with a disability;
- restoration, replacement or repair of damaged facilities,
- demolition of buildings or structures;
- environmental management works.
The role of a 'determining authority' under Part 5 of the EP&A Act
Any development that does not require development consent (such as the types of development under the Infrastructure SEPP referred to above) will be subject to the environmental assessment provisions of Part 5 of the EP&A Act.
Part 5 of the EP&A Act requires the environmental impact of such development to be considered by a 'determining authority', including:
- section 111 of the EP&A Act which requires a 'determining authority' to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity; and
- section 112 of the EP&A Act which requires a 'determining authority' to examine and consider an environmental impact statement in respect of an activity that is likely to significantly affect the environment.
By prescribing the 10 NSW Universities as 'determining authorities' for the purpose of Part 5 of the EP&A Act in respect of development under the Infrastructure SEPP that does not require development consent, the Amendment Regulation will allow a University to be the authority that considers the environmental impact of that development.
There are two alternative consequences of the Universities being a determining authority under Part 5 of the EP&A Act. Which of these alternatives actually occurs depends on whether or not the 10 Universities are correctly characterised as 'public authorities' for the purpose of the balance of the EP&A Act. These alternatives are:
- if Universities are correctly characterised as 'public authorities' for the purposes of the EP&A Act generally, the Amendment Regulation may provide for a modest streamlining of the development process for development which is possible without consent (under the Infrastructure SEPP) on University land as it will allow Universities to assess the environmental impact of such development in accordance with the requirements of Part 5 of the EP&A Act; or
- if a Universities are not correctly characterised as 'public authorities' for the purposes of the EP&A Act generally, the Amendment Regulation will only allow the Universities to assess the environmental impact of development being carried out by other public authorities on University owned land, which would be a narrow class of development indeed.
Possible risks arising from the Amendment Regulation
The Amendment Regulation may have an unfortunate unintended consequence. As stated above, the Infrastructure SEPP permits certain development carried out by or on behalf of a 'public authority' to occur without development consent. As stated above, there remains considerable uncertainty as to whether Universities are 'public authorities' for other purposes under the EP&A Act.
The Amendment Regulation could operate to strengthen an argument that Universities are not 'public authorities' for the purpose of the EP&A Act more broadly. The main risk is that the Amendment Regulation's specification of a narrow and limited 'public authority'role for the 10 NSW Universities may be interpreted as implicitly preventing these Universities from falling within the meaning of'public authority' under the balance of the EP&A Act.