The Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 (Part 3A Repeal Act), which was assented to on 27 June 2011, creates a new system in NSW to assess and determine projects of “genuine State significance”. The Part 3A Repeal Act, which will amend the Environmental Planning and Assessment Act 1979 (EP&A Act), marked the first major step in the NSW Government’s overall review of the EP&A Act. 

In preparation for the commencement of the Part 3A Repeal Act, on 18 August 2011 the Department of Planning and Infrastructure (DP&I) released Draft State Environmental Planning Policy (State and Regional Development) 2011 (Draft SEPP) for public exhibition.  The Draft SEPP prescribes the classes of development that will be State significant development (SSD), to be assessed under new provisions within Part 4 of the EP&A Act and State significant infrastructure (SSI), to be assessed under a new Part 5.1. 

An overview of the Part 3A Repeal Act, prepared prior its assent, is provided in our legal update dated 22 June 2011 titled 'Environmental Planning and Assessment Amendment (Part 3A Repeal) Bill 2011 - reforms to NSW major project approvals'

How this affects you

Primarily, the Draft SEPP details those sites and projects which are of “genuine State significance” and other important aspects of the new regime by:

  • identifying classes of development and site specific development as SSD (Schedules 1 and 2), SSI (Schedule 3) and critical SSI (Schedule 5);
  • conferring functions on joint regional planning panels to determine development applications; and
  • making consequential amendments to the State Environmental Planning Policy (Major Development) 2005.

The classes of development identified in the Draft SEPP are broadly consistent with policy statements published by the DP&I prior to the release of the Draft SEPP.

State significant development

SSD identified the in Draft SEPP includes:

  • agricultural produce industries and food and beverage processing, such as abattoirs and grain mills, with a capital investment value of more that $30 million;
  • coal mining, underground coal gasification, and other types of mining and mining related works that have a capital investment value of more than $30 million;
  • development for the purpose of injection and geological storage of greenhouse gas;
  • warehouses or distribution centres of more than $50 million at one location;
  • certain water storage or water treatment facilities; sewerage systems; and
  • various identified sites that are specifically indentified including Barangaroo and Luna Park.

The Draft SEPP confirms that development control plans will not apply to State significant development (clause 11). Whilst controls in local environmental plans will still apply to SSD, the effect of this provision is that a proposal for SSD will not be required to address or comply with the detailed planning controls usually found in a Council’s development control plan. These would typically include controls relating to matters such as setbacks, landscaping, design requirements, hours of operation, on-site parking requirements, flooding and signage.

State significant infrastructure

Projects to be declared as SSI under the Draft SEPP include: 

  • activities (within the meaning of Part 5 of the EP&A Act) that, in the opinion of the proponent are likely to significantly affect the environment and would require an environmental impact statement under Part 5 of the EP&A Act.  This will replace the previous Ministerial order dated 29 July 2005, which declared that Part 3A of the EP&A Act applied to those projects.  
  • port and wharf facilities carried out by a public authority that have a capital investment value of more than $30 million; and
  • certain water storage or water treatment facilities carried out by a public authority with a capital investment of more than $30 million.

Certain road and rail projects, including various Pacific Highway upgrade projects and the North West Rail Link will be classed as “critical SSI” under the Draft SEPP.

Invitation to Comment

The Draft State and Regional Development SEPP 2011 will have implications for most major developments.  Individuals and organisations are invited to comment on the proposed SEPP before 2 September 2011