Posted on August 2, 2017 by Katie Mortimer and Megan Hawley

Assessment of State Significant Projects

The NSW Department of Planning and Environment (‘Department‘) is reviewing the Environmental Impact Assessment (‘EIA‘) process for State significant projects.

The Department has released nine draft guidelines for comment. The guidelines are designed to improve the EIA process for proponents, communities and stakeholders, and decision-makers.

The draft guidelines seek to achieve earlier community involvement, improved clarity and guidance for all stakeholders, and improvement in the consistency and quality of EIA documents. The changes would impose a greater onus on proponents for State significant projects than what is currently required.

The EIA process

All applications to carry out State Significant Development (‘SSD‘) and State Significant Infrastructure (‘SSI‘) (as those terms are defined in the Environmental Planning and Assessment Act 1979) are required to be accompanied by an environmental impact statement (‘EIS‘) prepared in accordance with the Secretary’s Environmental Assessment Requirements (‘SEARs‘). Generally the process is that:

• a proponent requests the SEARs;
• the Department consults with relevant public authorities when preparing the SEARs;
• a proponent submits an EIS which is publicly exhibited; and
• the proponent submits a Response to Submissions (‘RTS‘).

An overview of the proposed changes

The key proposed changes to the process, which are intended to be effected through the guidelines and amendments to the Environmental Planning & Assessment Regulation 2000, are:

• a requirement for a proponent to submit a Scoping Report to the Department in support of an application for SEARs;
• an increased onus on proponents to consult and engage with communities and stakeholders during the scoping of a project (pre SEARs);
• for certain projects, a requirement for the Department to exhibit a Scoping Report for public exhibition, to allow submissions that will inform the Project’s SEARs;
• the inclusion of a Project Description Chapter within all EISs, to be updated over the life of a project to ensure an ongoing, accurate description;
• the publication of Departmental guidelines to inform the preparation of documents across all stages of the EIA process;
• the creation of three categories of conditions of consent, and a framework for the setting of conditions that will increase clarity as to how impacts should be managed; and
• a requirement for post-approval documents to be consistently publicly accessible.

The draft guidelines

There are 9 proposed guidelines as follows:

Guideline 1: Overview of the EIA Improvement Project.

Guideline 2: Community Guide to EIA – a guideline for stakeholders and the community to provide a clear explanation of the EIA process and opportunities for participation.

Guideline 3: Scoping an EIS – a guideline which requires scoping meetings and a scoping report before SEARs are sought which may in some instances be publicly exhibited.

Guideline 4: Preparing an EIS – the guideline includes the new requirement for a  project description chapter within an EIS.

Guideline 5: Response to External Submissions (‘RTS‘)- this includes requirements that the RTS be structured around issues, must detail how a project has changed in response to submissions and include details of any additional environmental assessment or engagement in response to submissions.

Guideline 6: Community and Stakeholder Engagement – this guideline includes the requirement for consultation during the scoping phase.

Guideline 7: Approach to Setting Conditions – this guideline categorises conditions as performance based conditions, prescriptive conditions and management based conditions and explains when each type of condition should be used.

Guideline 8: Modifying an Approved Project – this includes guidance around the process for modifying approvals.

Guideline 9: Peer Review – this guideline describes the role of peer review in the EIA process, when it should be used, the criteria for consultants undertaking a review and terms of reference for the review.

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Submissions can be made on the draft guidelines until 1 September 2017. Read the draft guidelines in full here.

The Department has stated that an initiative linked to improving the EIA process will be legislative amendments to the Environmental Planning and Assessment Act 1979. Stay tuned to in focus for updates on this proposal as information is released.

Should you wish to discuss the draft guidelines, please contact Megan Hawley, Partner on 8235 9704 or by email, at megan.hawley@lindsaytaylorlawyers.com.au