What is the NSW Government proposing?

The NSW Government is proposing that cl 12 AA of the Mining SEPP be repealed.

Clause 12AA was introduced in November 2013 to explicitly require the consent authority to consider the relative significance of the resource and the economic benefits of developing the resource, both to the State and the region in which the development is proposed to be carried out. The clause also provides that the significance of the resource is to be the consent authority’s principal consideration under Part 3 of the Mining SEPP.

What is the rationale for the proposed repeal?

The NSW Government is proposing the repeal to address ‘community and stakeholder concern that the social and environmental impacts of a proposal are not being adequately considered or given appropriate weighting’ by the consent authority.

What is the effect of cl 12AA?

The effect cl 12AA is commonly misunderstood.

Clause 12AA:

  • makes the significance of the resource the ‘principal consideration’ under the Mining SEPP (but not under the EP&A Act generally), and
  • highlights to the consent authority that it must address the significance of the resource in a comprehensive and meaningful way, and that it cannot be ignored or downplayed in the assessment process.

It does not mandate that the significance and economic benefits of developing the resource override all other considerations in mining project assessments.

The Mining SEPP, and other planning instruments, is only 1 of the 10 elements for the consent authority to consider when evaluating a project under s 79C of the EP&A Act.  Each element must still be given equal weight by the consent authority.

Concerns raised by stakeholders

The proposed amendment was on public exhibition from 7 July to 21 July 2015.

The DoPE and the Minister for Planning will consider public submissions before a decision is made whether to recommend the repeal of cl 12AA.

Some of the key concerns raised by stakeholders objecting to the repeal are:

  • it will create a significant imbalance in the project assessment process by removing the explicit requirement that the regional and state-wide significance and potential economic benefits of developing the resource be considered,
  • it would damage investor confidence and increase ‘sovereign risk’, and
  • there will be increased uncertainty for mining projects currently under consideration. The Government has responded to this issue by confirming that DoPE will prepare addendum assessment reports for projects currently in the system on how the changes should be interpreted by the Planning Assessment Commission.