Minister for Planning Rob Stokes has followed through on his promise to end transitional arrangements for projects approved under the former Part 3A, including modifications. On 9 January 2016, the Department of Planning and Environment released for public comment the draft Environmental Planning and Assessment Amendment Bill 2017 (Draft Bill) to introduce a suite of amendments including the repeal of the Part 3A transitional arrangements once and for all.

Developers wishing to modify Transitional Part 3A projects in the future may wish to start preparing a modification application to be lodged within the two month transitional window for newly lodged s 75W applications. Developers may also wish to request Secretary’s Environmental Assessment Requirements (SEARs) now to preserve the 12 month transitional period afforded to Transitional Part 3A projects for which SEARs have already been granted.

While Part 3A was repealed for new major projects in 2011, transitional arrangements have allowed developers to continue to modify Transitional Part 3A concept plans and projects pursuant to (repealed) s 75W, rather than pursuant to the “substantially the same development” test for modification applications under s 96 of the EP&A Act.

The Draft Bill proposes to repeal the transitional arrangements in Schedule 6A of the EP&A Act with all transitional Part 3A projects to become State Significant Development (SSD) or State Significant Infrastructure (SSI). A consultation note in the Draft Bill states:

“The provisions of this Schedule are being transferred to the regulations under the Act. The transferred provisions are to be amended to prevent any further modification of approvals for transitional Part 3A projects under the former Part 3A modification provisions, to enable those projects to become State significant development and State significant infrastructure and to make provision with respect to any outstanding Part 3A concept plans.”

The summary document accompanying the Draft Bill provides proposed transitional arrangements for the repeal of Schedule 6A of the EP&A Act. It is proposed that modifications under s 75W may be lodged for two months after the Draft Bill passes through both Houses of Parliament (Two Month Window).

Where SEARs have already been issued for a s 75W modification application, if the environmental impact statement is lodged within 12 months the application will continue to be determined under s 75W. It is unclear whether the 12 months is intended to run from the date the Draft Bill passes through Parliament or the date at end of the Two Month Window.

While there is no mandatory requirement for SEARs to be issued for s 75W modification applications, up until the Draft Bill is passed, SEARs could continue to be issued for s 75W applications. If issued, this could have the effect of preserving the operation of s 75W for the 12 month transitional period.

After the Two Month Window, a previous Transitional Part 3A project will transition to either SSI or SSD and any modification will be assessed pursuant to s 96. The modification will be assessed against the development at the time the development transitioned to SSD or SSI, rather than the original Part 3A approval.

The full impact of the repeal of transitional Part 3A will not be fully understood until the regulatory amendments are released.

The Draft Bill summary document states that the ongoing effect of approved Part 3A concept plans will be preserved but does not make clear how. On 3 June 2016, the Environmental Planning and Assessment Amendment (Transitional) Regulation 2016 came into effect to allow Part 3A projects to be assessed and determined as SSD without a Ministerial Order provided they are consistent with the previously approved Part 3A concept plan. We anticipate that the transitional arrangements to be introduced in the regulations will be such that Part 3A concept plans are to be treated similarly to a stage 1 SSD consent such that any further development applications in respect of a site cannot be inconsistent with the stage 1 consent.

Although the broader modification power under s 75W will not be available for modifications of previous Transitional Part 3A projects after the Two Month Window, the s 96 power will be arguably broader for previous Transitional Part 3A projects than for ordinary modification applications lodged pursuant to s 96. This is because the modified project will be required to be substantially the same as the project as it was last modified rather than by reference to the original Part 3A approval.

The public consultation period for the Draft Bill is from 10 January 2017 to 10 March 2017. Accordingly, the Draft Bill could be passed in the first half of 2017. Developers wishing to ensure that Transitional Part 3A projects continue to be assessed pursuant to s 75W rather than the “substantially the same development” test in s 96 of the EP&A Act, should lodge s 75W applications as a matter of urgency and in any event within the Two Month Window. Developers may wish to request SEARs now to seek to preserve the 12 month transitional period afforded to Transitional Part 3A projects for which SEARs have already been granted.