On 16 June 2011, a Bill was passed in the NSW Legislative Assembly to repeal Part 3A of the Environmental Planning and Assessment Act 1979 (EPA Act). The Bill was read for the second time in the Legislative Council on 20 June 2011 and was passed through both Houses on 22 June 2011.
Who needs to know?
All proponents of major projects in NSW.
The repeal of Part 3A is the first step in a fuller review of the EPA Act which the NSW Government plans to conduct over the next 18 months. That review is likely to result in the implementation of other fundamental changes to the land use planning framework in NSW.
The core change in the Bill is the re-separation of major projects into:
- state significant development (which was in place before the enactment of Part 3A), and
- state significant infrastructure.
The Bill also contains transitional provisions for existing Part 3A applications and approved Part 3A projects.
State significant development
The Bill inserts a new Division into Part 4 of the EPA Act for the assessment of state significant development. It is proposed that a new SEPP called the State Environmental Planning Policy (State and Regional Development) 2011 (State and Regional Development SEPP) will be made which will set out what categories of development will be state significant development. Whilst a copy of the draft State and Regional Development SEPP has not yet been made publicly available, information provided by the Department of Planning and Infrastructure lists the proposed classes of state significant development. They include certain development in the following categories:
- mining and other extractive industries
- petroleum production
- chemical and other manufacturing
- warehouse and distribution centres, and
- waste management.
Some elements of Part 3A have been incorporated into this new Division. Importantly, the ‘streamlining provisions’ of Part 3A (the previous sections 75U and section 75V which removed or abridged requirements for a range of secondary licence and approvals) have been reflected in the new Division with one exception. Amendments were made in the Legislative Council which remove for State significant developments and for State significant infrastructure the current exemption from the requirement to obtain separate aquifer interference approvals under the Water Management Act 2000 (NSW).
In addition, the Bill revives the Ministerial power to ‘call in’ development for determination as state significant development. But the Bill makes it a precondition that the Planning Assessment Commission (PAC) must have recommended the ‘call-in’. The PAC has other roles in the Bill in relation to state significant development. The Minister is the consent authority for all decisions on applications for consent to state significant development, but the Bill contemplates that the Minister will delegate this function to the PAC.
State significant infrastructure
The Bill inserts new Part 5.1 for the assessment of state significant infrastructure.
The new State and Regional Development SEPP will also set out the categories of development which will be state significant infrastructure. It is currently proposed that these will be limited to the following categories of projects:
- government projects for which, were it not for the new Part 5.1, the proponent would also otherwise be the determining authority and an environmental impact statement would be required under Part 5 of the EPA Act
- certain port facilities and wharf or boating facilities by or on behalf of a public authority
- certain rail infrastructure by or on behalf of the Australian Rail Track Corporation
- certain water supply systems by or on behalf of a public authority
- pipelines which are required to be licensed under the Pipelines Act 1967 (NSW), and
- submarine telecommunication cables.
The Minister has the power to approve applications for state significant infrastructure, and the Bill prevents the Minister from delegating this function to the PAC in the case of ‘critical’ state significant infrastructure.
Generally, applications for Part 3A approval which have not yet been determined but in respect of which the Director-General of Planning has issued environmental assessment requirements will continue to be assessed under Part 3A. However, if the environmental assessment requirements are more than two years old without an Environmental Assessment Report being lodged under Part 3A, then the application will no longer be subject to Part 3A and a new application will have to be made under the new regime.
Part 3A will continue to apply to projects which have been approved under Part 3A when the Bill commences or which are subsequently approved under Part 3A.
The NSW Government intends that the Bill will pass the Legislative Council on 23 June 2011.
The government intends to finalise supporting regulations and State Environmental Planning Policies in order for the legislation to commence by mid-July.
The Bill’s provisions are extensive and detailed. We will be conducting further analysis of the Bill, and we will issue further updates as that analysis proceeds.