In brief

  • The recent Rivers SOS Inc v Minister for Planning case considered the application of Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) to ‘major development’ in New South Wales.  
  • The case is important because of the decision by the Land and Environment Court that State Environment Planning Policies do not apply to or in respect of the exercise of power by the NSW Planning Minister to approve or disapprove the carrying out of Part 3A projects.  

This is an important judgement on the application of Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to ‘major development’ in New South Wales.

The proceedings were commenced by Rivers SOS Inc, an incorporated association of environmental community groups. It sought to challenge the validity of an approval granted by the NSW Minister for Planning under section 75J(1) of the EPA Act for the Metropolitan Coal Project on land near Helensburgh in NSW. The approval was made subject to several detailed conditions. Rivers SOS Inc argued, amongst other things, that the Minister had failed to comply with the provisions of clause 12 of the State Environment Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP) before approving the project and that, accordingly, the approval was invalid.

Chief Justice Preston delivered the judgement on 16 December 2009. He decided1 not to follow earlier Land and Environment Court authority2 and held that State Environment Planning Policies (SEPPs) do not apply to or in respect of the exercise of power by the New South Wales Planning Minister under section 75J(1) of the EPA Act to approve or disapprove the carrying out of Part 3A projects. In particular, he held that the Mining SEPP does not apply to the exercise of that power.

This means, for example, that ‘any prohibition on the carrying out of a project or any procedural requirement contained in a SEPP that matters be considered in deciding whether or not to approve a project, [does not] apply to the Minister’s exercise of power in [section] 75J(1) because the SEPP does not apply at that stage. Only after the Minister approves a project, [does] the SEPP apply, first, to the approved project and, secondly, to the carrying out of the project’.3

The judgement is also important because of the decision in it that a condition requiring the provision of ‘[offsets] to compensate for the [impacts of a project]’ without specification of what are suitable offsets or the range of possible offsets, is not outside the power under section 75J(4) of the EPA Act to impose conditions.4 The general consequences of this, for planning law and pollution control law as regards mining projects, and the particular significance it has in relation to greenhouse law as regards mining projects, are considerable. It recognises a very broad power in section 75J(4) of the EPA Act to impose conditions requiring ‘offsets’.

Finally, the judgement is important because of the decisions in it that, in circumstances where a hearing by the Planning Assessment Commission (PAC) has been held and a revised mine plan has been prepared after the PAC’s report, there is no statutory obligation to hold a further public hearing into the revised mine plan,5 nor is there any implied obligation to do so6 nor, in the circumstances of the case, was there any obligation to do so under the rules of natural justice.7

But the judgement’s primary importance remains its decision that SEPPs do not apply to or in respect of the exercise of power by the NSW Planning Minister under section 75J(1) of the EPA Act to approve or disapprove the carrying out of Part 3A projects.

The practical effect of the decision is as follows:

  • The Minister is still prohibited from granting approval to a Part 3A project in circumstances where regulations made pursuant to section 75J(3) of the EPA Act apply.8 These regulations prohibit approval to projects proposed on environmentally sensitive land or in sensitive coastal locations.
  • However, that prohibition does not operate if the project is a ‘critical infrastructure project’.9
  • The Minister may only proceed to decide whether or not to grant approval to the project if the circumstances set out in section 75J(1) of the EPA Act exist (namely, an application for approval has been made, and the Director-General has reported on the project).10
  • In deciding whether or not to grant approval to the project under section 75J(1) of the EPA Act, the Minister must ‘consider’ the matters set out in section 75J(2) of the EPA Act (namely, any findings or recommendations of the PAC following a review in respect of the project, the Director-General’s report on the project and the reports, advice and recommendations contained in the report, and (if the proponent is a public authority) any advice provided by the Minister having portfolio responsibility for the proponent).11
  • SEPPs do not apply to or in respect of the exercise of power under section 75J(1) of the EPA Act to approve or disapprove the carrying out of the project.12
  • In particular, ‘any prohibition on the carrying out of [the] project or any procedural requirement contained in a SEPP that matters be considered in deciding whether or not to approve [the] project, [does not] apply to the Minister’s exercise of power in [section] 75J(1) because the SEPP does not apply at that stage’.13
  • ‘[If] a SEPP [prohibits] the carrying out of [the] project and if the Minister [approves] the carrying out of the project, thereupon the SEPP [will] apply to the approved project and prohibit the carrying out of the project…[but] the SEPP [does] not apply to the Minister’s earlier exercise of the power to approve the project’.14
  • Any such prohibition on the carrying out of the project can be overcome by the means described in section 75R(3A) of the EPA Act15 (by gazetted amendment to a planning instrument) or by the general planning-making power under the EPA Act.16
  • In any event, if the project is a ‘critical infrastructure project’, any breach of such a prohibition could not form the basis of court proceedings in the Land and Environment Court or elsewhere.17
  • In deciding whether or not to grant approval under section 75J(1) of the EPA Act to the project, the Minister may (but is not required to) take into account the provisions of any non-SEPP environmental planning instrument that would not apply to the project if approved.18

What is not clear from Chief Justice Preston’s decision is how it translates to the Minister’s power under section 75O(1) of the EPA Act to approve a concept plan for a project such as a mining project. It seems from remarks in the case,19 that, as in the case of an exercise of power under section 75J(1) of the EPA Act, so also in the case of an exercise of power in section 75O(1) of the EPA Act, the provisions of a SEPP do not apply to the Minister’s exercise of the power.

In the case of a project for which a concept plan has been approved, the further application of the EPA Act in relation to the project is governed by section 75P(1) of the EPA Act. Under that section, the Minister is enabled to make any of the following determinations when giving such approval:

  • A determination that no further environmental assessment is required for the project or any particular stage of the project.20 In this case, the Minister may proceed to a determination to approve or disapprove the carrying out of the project under section 75J(1) of the EPA Act. The Minister may proceed to do so without further application, environmental assessment or report,21 and no SEPP will apply in relation to the determination under section 75J(1) of the EPA Act.
  • A determination that the project or any particular stage of it is to be subject to ‘the other provisions of’ the EPA Act.22 In this case, the project or the stage ceases to be a project to which Part 3A of the EPA Act applies23 and ‘the other provisions of’ the EPA Act apply on that basis.
  • A determination of the further assessment requirements (if any) before approval to carry out the project is granted under section 75J(1) of the EPA Act.24