Posted on November 15, 2017 by Katie Mortimer and Sue Puckeridge
Changes to the Catchment SEPP – A new test for ‘continuing development’ and water quality
The New South Wales Government has assented to new legislation that amends both the Environmental Planning and Assessment Act 1979 (‘EPA Act‘), and the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 (‘Catchment SEPP‘).
The Environmental Planning and Assessment Amendment (Sydney Drinking Water Catchment) Bill 2017 (‘Amending Bill‘) commenced on 13 October 2017, and circumvents the Court of Appeal decision in 4nature Incorporated v Centennial Springvale Pty Ltd  NSWCA 191 (see our previous blog) to create a new test for determining whether the carrying out of development on land in the Sydney drinking water catchment will have a neutral or beneficial effect on water quality.
Changes to the Catchment SEPP
Clause 10 of the Catchment SEPP provides that a consent authority cannot grant development consent on land in the Sydney drinking water catchment unless it is satisfied the carrying out of the proposed development would have a neutral or beneficial effect on water quality.
The Amending Bill inserted a new clause 11A to the Catchment SEPP, that will apply when determining if the carrying out of continuing development in the Sydney drinking water catchment will have a neutral or beneficial effect on water quality
Clause 11A(2) defines ‘continuing development’ to be
‘any development (such as mining) for which development consent was limited to the carrying out of the development for a particular time or to a particular area or intensity, but which was likely to be the subject of future applications for consent for its extension or expansion.’
Clause 11A(3) now provides that:
(a) development consent was granted for continuing development (“the existing development consent”), and
(b) a development application is made for consent to extend or expand the carrying out of the development (“the proposed development”), and
(c) the development application is made before the authority conferred by the existing development consent expires or is exhausted,
the carrying out of the proposed development will have a neutral or beneficial effect on water quality if it will have the same or a lesser adverse impact on water quality when compared to the adverse impact that the continuing development would have if it were extended or expanded under similar conditions as the existing development consent.’
We consider the changes to the Catchment SEPP are significant. The new clause 11A broadens the ‘neutral or beneficial effect on water quality’ test that was previously contained in clause 10. Now, an applicant will only need to demonstrate that their extension or expansion will cause a lesser or the same impact as if the existing development consent were to be expanded or extended under similar conditions as the existing development consent.
Given the definition of continuing development, this new test is most likely to apply to expansion or extension applications for State Significant Development, or Part 5 Activities under the EPA Act, which by their nature will have a greater environmental impact.
The Government proposes to consolidate the Catchment SEPP with 6 other SEPPs. This is proposed in the new State Environmental Planning Policy (Environment). An Explanation for Intended Effect for the SEPP (Environment) is on public exhibition until 15 January 2018. We anticipate the ‘continuing development’ provisions will be carried into the new SEPP.
Should you wish to discuss the new legislation please contact Sue Puckeridge, Partner on 8235 9702 or by email, at firstname.lastname@example.org