What has happened?

On 1 October 2011, Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) was repealed and replaced with new regimes for state significant development and state significant infrastructure.

This note provides an overview of the changes to the planning regime and examines some key changes in the assessment and approvals process.

Who needs to know?

Anyone interested in the assessment and approval of major projects in New South Wales.

Overview

In summary, with effect from 1 October 2011:

  • Part 3A of the EP&A Act (Part 3A) has been repealed. 
  • Detailed transitional provisions have been enacted which specify when and how Part 3A will continue to apply to existing applications and approvals (including concept plan approvals) granted under Part 3A. 
  • New regimes have been introduced for State Significant Development (SSD) and State Significant Infrastructure (SSI). 
  • The new State Environmental Planning Policy (State and Regional Development) 2011 (SEPP) has commenced and specifies the categories of development which will be assessed as SSD and SSI. 
  • The categories of development which will be SSD include mining and other extractive industries, petroleum production, chemical and other manufacturing, warehouse and distribution centres and waste management. 
  • The categories of SSI are generally limited to certain government and public infrastructure projects.
  • The Environmental Planning and Assessment Regulation 2000 has been amended to make provision for the new regimes. 
  • A new instrument of delegation has been made which delegates all applications apart from those lodged by public authorities (including all existing Part 3A applications and new SSD and SSI applications), to the Planning Assessment Commission for determination.

These reforms are interim measures only. The planning system is currently being reviewed by the NSW Planning Review Panel, with the aim of creating a new planning system by the end of 2012.

Key changes in the assessment and approvals process

Approvals and conditions of consent

Under Part 3A, the Minister had a broad discretion to approve projects subject to conditions. As a result, it was very difficult to challenge the Minister’s decision to approve a project or to impose conditions.

Under the new regime, Part 4 of the EP&A Act applies generally to the granting of approvals and the imposition of conditions for SSD projects. This includes:

  • section 79C, which lists matters that the consent authority must take into consideration in determining a development application, and
  • section 80A, which deals with matters about which conditions may be imposed on a consent (for example, a condition may be imposed if it relates to any matter referred to in section 79C of relevance to the development).

As a result, there is an increased ability for objectors to challenge:

  • the validity of an SSD consent in judicial review proceedings (for example, failure to consider a mandatory relevant consideration), and
  • the validity of conditions of consent, as the conditions that may be imposed are referable to the matters listed in section 80A.

In addition, it is likely that conditions of consent will be less flexible than those issued under Part 3A.

Modifications of projects

Part 3A did not impose a clear limitation on the Minister’s power to modify an approval, provided that the Minister was satisfied that it was a ‘modification’, rather than an entirely new project. As a result, it was very difficult to challenge the Minister’s decision to modify a project.

Under the new regime, section 96 of the EP&A Act applies to SSD projects. This provision is much narrower than the modification provisions under Part 3A. As a result:

  • it will be more difficult to make significant changes to a project after it is approved, 
  • any such changes are much more likely to require a new application and approval, and 
  • there is an increased risk to SSD projects of objectors challenging modifications.

Staged development

Under Part 3A, concept plans offered flexibility for the staged structuring of projects. The new regime offers much less flexibility.

Staged development applications for SSD projects can be lodged under Part 4 of the EP&A Act, which contemplates the lodging of separate applications for each further stage. However, there is no real benefit in adopting this approach and it raises potential issues including:

  • requiring a higher level of assessment for the further stages of the project than was required under the concept plan process in Part 3A, 
  • increased opportunities for objectors to challenge consents, and
  • difficulty in modifying the project in its further stages if it is not ‘substantially the same’ as the earlier approved stages.

Previous updates

Our previous updates have reported in detail on the planning reforms:

  • Consultation draft State Environmental Planning Policy (State and Regional Development) 2011 released1, and
  • Important developments in NSW Land Use Planning Law: Repeal of Part 3A of the EPA Act2.