Posted on October 3, 2018 by Stuart Simington and

Infrastructure SEPP amendments commence – additional consultation requirements for certain activities

On 31 August 2018, a range of changes to State Environmental Planning Policy (Infrastructure) 2007 (‘Infrastructure SEPP‘) came into force following the commencement of the  State Environmental Planning Policy (Infrastructure)  Amendment 2018 (‘2018 Amendments‘).

The Infrastructure SEPP plays a key role in facilitating infrastructure delivery in NSW, particularly where  infrastructure works are to be carried out by or on behalf of a public authority.

The Infrastructure SEPP achieves this aim, in part, by enabling certain development for particular purposes to be carried out either as exempt or complying development provided that the development complies with development standards specified in the Infrastructure SEPP as well as the criteria which apply to exempt and complying development more generally.

2018 Amendments

The recent changes introduced by the 2018 Amendments expand the range of infrastructure related development through these more streamlined approval pathways (eg. the erection of an electric vehicle charger as exempt development on particular land for commercial or private use).

In addition to this, the 2018 Amendments make other types of infrastructure related development permissible either with development consent (eg. electricity generating works using waves, tides or aquatic thermal as the relevant fuel source – on any land) or without consent in circumstances where that type of development would not have otherwise been permissible.

Savings and Transitional provisions

The 2018 Amendments do not apply to development for which a development application was lodged, or for which development had commenced prior to 31 August 2018 or for an activity which a determining authority began to consider under Part 5 of the Environmental Planning and Assessment Act 1979 before that date (see Schedule 5).

Complying development – general requirements

The 2018 Amendments also amend clause 20B which includes the general requirements for complying development. By inserting subclause (c1) into clause 20B, development will not be complying development unless it is carried out in accordance with relevant provisions of the Blue Book (Managing Urban Stormwater: Soils & Construction (4th edition, Landcom, 2004)). This change is designed to ensure appropriate stormwater management measures are in place for all complying development carried out under the Infrastructure SEPP.

Additional consultation requirements for certain activities

Additional consultation requirements are included in the Infrastructure SEPP as a result of the 2018 Amendments.

These new requirements apply to councils and other public authorities when carrying out certain permissible activities (as well as those carrying out those activities on their behalf).

In particular, these new consultation requirements apply to:

• certain types of development on flood liable land that may be carried out without development consent:
  • the State Emergency Service must be given written notice of the intention to carry out the development together with a scope of works (see clause 15AA);
• development for the purpose of emergency services facilities (including ambulance facilities) that may be carried out without consent under clause 48:
  • the council for the area on which the land is located and occupiers of adjoining land must be given written notice of the intention to carry out the development (see clause 48(6));
• development for car parks intended for use by commuter using regular bus services, bus depots, permanent road maintenance depots and associated infrastructure that may be carried out without consent under clause 94 and clause 95:
  • the council for the area on which the land is located and occupiers of adjoining land must be given written notice of the intention to carry out the development (see clause 95A); and
• traffic-generating development that may be carried out without development consent under clause 104:
  • the RMS must be given written notice of the intention to carry out the development (see clause 104(2A)).

Councils and other public authorities should be mindful of these new consultation requirements for development for which they are a proponent.

Conversely, if notified of one of the above types of development, councils and other public authorities will now have the opportunity to provide comments to the proponent in circumstances where they would not previously have been afforded an opportunity to do so.

The full suite of changes introduced by the 2018 Amendments can be viewed here

If you have specific queries regarding the changes to the Infrastructure SEPP or wish to discuss this blog, please email Stuart Simington, Partner at stuart.simington@lindsaytaylorlawyers.com.au or call him on 8235 9704.