On 1 October 2011 Part 3A of the Environmental Planning and Assessment Act 1979 (the Act) was repealed.
At that time, the Environmental Planning and Assessment Amendment (Part 3A Repeal) Regulation 2011 (the Part 3A Repeal Reg) also came into force.
The Part 3A Repeal Reg inserted transitional provisions into Schedule 6A of the Act.
On 1 December 2011, the Environmental Planning and Assessment Further Amendment (Part 3A Repeal) Regulation 2011 (the Further Amendment Reg) commenced.
The Further Amendment Reg revises the transitional arrangements made by the Part 3A Repeal Reg to provide clarity in some areas where there was previously some ambiguity or unintended consequences.
A summary of the main areas of amendment is as follows.
Definition of ‘transitional Part 3A project’
The definition of ‘transitional Part 3A projects’ has been amended to mean the following:
- an approved project (whether approved before or after the repeal of Part 3A)
- a project that is the subject of an approved concept plan (whether approved before or after the repeal of Part 3A)
- a project for which environmental assessment requirements for approval to carry out the project (other than under s75P(1)(A)), or for approval of a concept plan for the project, were last notified or adopted within 2 years before the relevant Part 3A repeal date (unless the environmental assessment is not duly submitted within 2 years after the repeal of Part 3A or such further period as the Director-General allows by notice in writing to the proponent),
- a project for which an environmental assessment (whether for approval to carry out the project or for approval of a concept plan for the project) was duly submitted before the relevant Part 3A repeal date.
However development is not a transitional Part 3A project if:
- it ceased to be a project to which Part 3A applied before the repeal of Part 3A; or
- it ceases to be such a project in the future.
The amendments clarify that the repeal of provisions of State Environmental Planning Policy (Major Development) 2005 that previously declared development as a project to which Part 3A applied does not affect whether or not development is a transitional Part 3A project.
Restriction on approvals of projects
Generally speaking, Part 3A continues to apply to transitional Part 3A projects.
However, approval cannot be granted for a transitional Part 3A project if the development is only a transitional Part 3A project because it is the subject of:
- an approved concept plan,
- environmental assessment requirements for approval of a concept plan or
- an environmental assessment for approval of a concept plan.
Approval for a project can be granted granted under s75P(1)(c) when a concept plan for a transitional Part 3A project is approved.
Carrying out of development under approved concept plans
A concept plan which has been approved under Part 3A, either before or after the repeal of Part 3A, will fall within clause 3B of schedule 6A of the Act.
Amongst other things, cl3B provides that:
- if Part 4 of the Act applies to the carrying out of the development, then the development is taken to be development that may be carried out with development consent under Part 4 despite anything to the contrary in an environmental planning instrument; and
- if Part 5 of the Act applies, the development is taken to be development that may be carried out without development consent under Part 4 despite anything to the contrary in an environmental planning instrument;
- development standards in the concept plan approval have effec;
- a consent under Part 4 must be generally consistent with the terms of the concept plan approval;
- environmental planning instruments and development control plans to not have effect to the extent they are inconsistent with the terms of the concept plan approval;
- any order or direction under s75P(2) made when the concept plan was approved continues to have effect.
Modification of concept plans
Further clarity has also been provided concerning the the ability to modify concept plans.
A new cl3C provides that s75W (which provides for the modification of concept plans) continues to apply for that purpose whether or not the concept plan was approved before or after the repeal of Part 3A and whether or not it is a transitional Part 3A project.
State significant development and State significant infrastructure
Specified development that was a project to which Part 3A applied immediately before the repeal of Part 3A may be declared to be State significant infrastructure or State significant development whether or not it is a transitional Part 3A project. If so, it ceases to be a transitional Part 3A project.
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