Posted on June 24, 2011 by

EPA Amendment (Part 3A Repeal) Act 2011: further details

Further to our update on 17 June 2011, the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 was passed on 22 June 2011 (Act).

Consistent with the Government’s election promise, the Act repeals Part 3A of the Environmental Planning and Assessment Act 1979 (EPA Act).

The Act introduces approvals regimes for ‘State significant development’ (SSD), ‘State significant infrastructure’ (SSI) and makes changes to the operation of Joint Regional Planning Panels (JRPPs) and the Planning Assessment Commission (PAC).

Development not given ‘state significant’ status is to be dealt with under the current provisions of Part 4 and 5 of the EPA Act with the applicable Council or JRPP being the consent authority for development that requires consent.

A copy of the Act is available at:

http://www.legislation.nsw.gov.au/xref/inforce/?xref=Type%3Dact%20AND%20Year%3D2011%20AND%20no%3D22&nohits=y

Key changes

Key changes over the former Part 3A are:

• a reduction in the scope of development categorised as ‘state significant’,
• residential, commercial and retail development will not be ‘state significant’ unless specifically ‘called in’ by the Minister, on advice from the PAC, or identified in a site with identified SSD,
• there are no concept plan approvals,
• environmental planning instruments (EPIs), including Local Environmental Plans (LEPs), apply to SSD, and
• more prescriptive assessment and conditioning powers apply to SSD than were contained within Part 3A.

State significant development (SSD)

Principal provisions regarding SSD are that:

• certain classes of development will be set out in a proposed State Environmental Planning Policy (State and Regional Development) 2011 (State and Regional Development SEPP) as being SSD,
• 24 classes of development are currently proposed for SSD including: Intensive Livestock Agriculture, Mining, Petroleum (oil, gas and coal seam gas), Extractive Industries, Warehouses and Distribution Centres, Hospitals and Health Research Facilities, Road, Rail and Related Transport Facilities, Electricity Generating Works and Heat or Co-Generation, Waste and Resource Management Facilities and Remediation of Contaminated Land,
• in addition to individual projects, the Act also provides for the ability to identify specific sites as being of State significance in terms of their development potential or strategic importance,
• 16 sites are proposed as sites with identified SSD including the: Sydney Opera House, Sydney Olympic Park, Luna Park, Barangaroo, Darling Harbour, Redfern Waterloo Authority sites, Royal Randwick Racecourse, Western Sydney Parklands and Taronga Zoo,
• SSD requires development consent from the Minister under Part 4 of the EPA Act,
• development consent can be granted if part, but not all, of the development is prohibited in a LEP,
• a rezoning process can be commenced for the prohibited part of any SSD at the same time as development consent is sought,
• ss 79C, 80, 80A, 93F and 94 of the EPA Act all apply to SSD,
• SSD is not ‘designated development’, but does require an environmental impact statement (EIS),
• certain authorisations are not required for SSD or must be substantially consistent with the development consent for SSD in terms that are almost the same as applied under the former Part 3A,
• a modification application for SSD is to be for ‘substantially the same development’ under s 96 which is narrower than the modification power under the former s 75W in Part 3A,
• applicant appeal rights under s 97 of the EPA Act apply to SSD,
• objector appeal rights under s 98 of the EPA Act apply to SSD where it would have been designated development, but for the new s 77A(2), and
• appeal rights do not apply to a development consent determined by the consent authority for SSD after a public hearing by the PAC.

State significant infrastructure (SSI)

The principal provisions are:

• ‘infrastructure’ is defined to include development such as railways, roads, electricity transmission or distribution networks, pipelines, ports, telecommunications, sewerage and water supply systems,
• certain classes of development will be set out in the proposed State and Regional Development SEPP as being SSI,
• 6 classes of SSI are currently proposed as likely inclusions: General Public Authority Activities, Port Facilities and Wharf or Boating Facilities, Rail Infrastructure, Water Supply Systems, Pipelines and Submarine Telecommunication Cables,
• the Minister can also declare specified development on specified land to be SSI by an order or a State environmental planning policy,
• SSI requires approval from the Minister under a new Part 5.1 of the EPA Act,
• Part 5.1 creates a new approval regime for SSI which follows a very similar process to the former Part 3A, incorporating modification provisions similar to the Part 3A regime,
• Part 5.1 also contains ‘critical state significant infrastructure’ again with a very similar process to the former Part 3A, however, the Minister cannot delegate power to approve critical SSI, and
• SSI requires the preparation of an EIS.

Planning Assessment Commission

The Act provides the PAC with an expanded role in determining development applications for SSD as requested by the Minister.

The Act also contains a number of changes to the PAC and its operation, including increasing the membership of the PAC to up to 9 members with members now only able to hold office for not more than 6 years in total.

Joint Regional Planning Panels

Under the Act, the JRPP’s role as consent authority will be restricted to development that is of a class or description set out in a new Schedule 4A, which includes:

• development that has a capital investment value of over $20 million,
• development that has a capital investment value of over $5 million where the Council is the applicant for development consent, or is the owner of any land on which the development is to be carried on, or intends to carry out the development, or is a party to an agreement relating to the development (other than an agreement entered into under the EPA Act for the payment of contributions by a person other than the council), and
• development of private infrastructure and community facilities with a capital investment value of more than $5 million.

Existing Part 3A major developments?

For projects already in the system, the Act establishes a new category of development called ‘transitional Part 3A Projects’. Briefly stated, these are:

• approved Part 3A projects,
• a project for which environmental assessment requirements were notified or adopted before the repeal of Part 3A, and
• a project that is the subject of a Part 3A project application and that the regulations declare to be a transitional Part 3A project.

The former Part 3A continues to apply to and in respect of a transitional Part 3A project. This would, for example, permit modification of a Part 3A project under the former s 75W.

However, a transitional Part 3A Project does not include a project that ceases to be a project to which Part 3A applies by the operation of State Environmental Planning Policy (Major Development Amendment 2011. For further information on this amendment see:

https://www.lindsaytaylorlawyers.com.au/in_focus/index.php/2011/05/part-3a-development-transitional-arrangements/

There are also provisions which exclude compensation claims against the State in relation to the amendments to the EPA Act.

For many Part 3A projects in the system, such as those that had not received environmental assessment requirements, Part 3A will no longer apply. The proposed development will have to be determined under Part 4 of the EPA Act; some of this development may, in turn, be SSD or SSI.

Moving forward

It is anticipated that the Government will complete the supporting regulations and 2011 SEPP shortly and that the legislation may come into operation during July 2011.