On Saturday, 1 October 2011, Part 3A of the Environmental Planning and Assessment Act 1979 will be repealed, the Environmental Planning and Assessment Regulation 2000 will be amended and a new State Environmental Planning Policy (State and Regional Development) 2011 will come into force.

The repeal of Part 3A of the Environmental Planning and Assessment Act 1979 (“EPA Act”) was a key election promise for the NSW Liberal Government.  Legislation to repeal Part 3A was passed by the NSW Parliament in June 2011 but will only come into force on 1 October 2011.  When it commences on Saturday, the Act repealing Part 3A will make a number of changes to the EPA Act, the substance of which has been in the public arena for some weeks.

The changes include:

  • repealing Part 3A;
  • introducing a new category of “State significant development” into Part 4;
  • introducing new categories of “State significant infrastructure” and “critical State significant infrastructure” into a new Part 5.1;
  • making changes to the role and composition of the Planning Assessment Commission and Joint Regional Planning Panels; and
  • inserting transitional arrangements following the repeal of Part 3A.  

While Part 3A itself will be removed from the EPA Act, many of the same approval powers that were in place under Part 3A will be retained by the Minister under the new State significant regime.

Key changes include the complete removal of retail, commercial and residential projects from the ‘major projects’ scheme (these developments will now be assessed by local councils, or by JRPPs if the capital investment value of the development is greater than $20 million) and the application of the Part 4 assessment regime to major development projects.

The detail is in the Regulations

The detail for the implementation of the new ‘state significant regime’ has now been disclosed by the release of the Regulations.

On 1 October 2011, the Environmental Planning and Assessment Regulation 2000 will be amended to accommodate the repeal of Part 3A.  The major changes to the regulations are:

  • introduction of detailed requirements for public participation in the assessment of State significant development;
  • extension of the deemed refusal period for State significant development;
  • introduction of requirements to be followed when State significant development is ‘called in’ by the Minister, on the advice of the Planning Assessment Commission;
  • introduction of a process to be followed when making an application for State significant infrastructure;
  • introduction of provisions dealing with fees to be charged for an application for State significant development or State significant infrastructure, and fees for other activities; and
  • changes to the provisions dealing with environmental impact statements, which now all appear in Schedule 2 of the Regulations.  

Interestingly, the amending regulations also make some changes to the transitional provisions in Schedule 6A to the EPA Act itself.  These amendments change the way in which concept plans for transitional Part 3A projects are treated.

The new SEPP (State and Regional Development)

The new State Environmental Planning Policy (State and Regional Development) 2011 will also commence on 1 October.  The SEPP provides detail as to the categories of projects that will be State significant development, State significant infrastructure and critical State significant infrastructure.

A consultation version of the SEPP was previously on exhibition.  The version of the SEPP that will commence on 1 October 2011 has a number of differences from the consultation draft, including:

  • changes to a number of categories of State significant development, including warehouses, port facilities and rail facilities, and the removal of road projects altogether;
  • changes to the treatment of Barangaroo as an identified site of State significant development;
  • removal of some projects from the critical State significant infrastructure category, including the M5 West Widening and a number of Pacific Highway projects.