Introduction

On 24 August 2012, significant amendments were made by the NSW Government to the transitional arrangements for major project applications currently before the Department of Planning and Infrastructure (Department) and which continue to be assessed under the repealed Part 3A of the Environmental Planning and Assessment Act 1979 (EP&A Act). This update explains the new, tighter deadlines which have been imposed in relation to the assessment of such projects (known as Transitional Part 3A Projects), and the potentially severe consequences which flow if they are not met.

Overview

Part 3A was repealed on 1 October 2011, and a transitional regime allowed two years from that date for proponents to submit an environmental assessment. These amendments bring forward by 10 months the ‘sunset date’ for the submission of assessment documents by proponents, to facilitate the Government’s aim of completing the assessment of all Transitional Part 3A Projects by 30 June 2013. This is 12 months earlier than originally scheduled.

The amendments:

  • require proponents to lodge an environmental assessment by 30 November 2012 (10 months earlier than the previous deadline); and
  • introduce deadlines for proponents to submit:
    • a response to submissions – within 30 days;
    • a preferred project report – within 60 days; or
    • a revised statement of commitments – within 60 days;

if such a document has been required by the Director- General of the Department (Director-General).

Submission of environmental assessments

The amendments require all environmental assessments for Transitional Part 3A Projects to be lodged prior to 30 November 2012.  The Director-General can extend this date by notifying the proponent in writing, however the Department has indicated that this will be “done sparingly and only when justified”, where a “compelling justification” is made.

If the environmental assessment is not lodged by 30 November 2012, and the date for lodgement has not been extended by the Director-General, that project will automatically stop being considered as a Transitional Part 3A project and will no longer be assessed under Part 3A.

In this circumstance, the proponent will have to lodge a new application under Part 4 or 5 of the EP&A Act, depending on the type of project. There is no provision in these amendments for the proponent to be “credited” for work done within Part 3A, although a mechanism may be available to achieve this under other provisions of the EP&A Act.

Submission of responses

Part 3A empowers the Director-General to require a proponent to submit a response to submissions, a preferred project report or a revised statement of commitments, and this power is frequently exercised. The amendments impose new, tight deadlines for the submission of these responses.

If the relevant response is not given by the proponent within the specified time, the project application may be approved or refused by the Minister for Planning and Infrastructure in the absence of that response.

The time limits are:

  • A response to submissions must be submitted within 30 days of being notified;
  • A preferred project report must be submitted within 60 days of being notified; and
  • A revised statement of commitments must be submitted within 60 days of being notified.

For proponents who had already been notified of such a requirement prior to the amendments commencing, the above time limits will apply as if 24 August 2012 was the relevant notification date.

The Director-General can extend these time limits, however extensions will not automatically be granted.

Further information on the repeal of Part 3A can be found here.