Posted on January 27, 2021 by Sue Puckeridge and Adriana Kleiss 59

Major Project Reforms – Rapid Assessment Framework Package

The NSW Department of Planning, Industry and Environment is currently exhibiting a package of proposed reforms to the Environmental Planning and Assessment Regulation 2000 (NSW) (‘EPA Regulation’) described as the ‘Rapid Assessment Framework Package’ for state significant projects.

The purpose of the reform package is to ensure that projects of State significance are supported by a strong, fair and quick assessment system by:

• increasing efficiency and transparency in environmental impact assessments,
• ensuring applications are prepared to a consistently high standard, and
• introducing formal quality assurance measures for environmental assessment reports.

The reform package comprises:

• the draft Environmental Planning and Assessment Amendment (Major Projects) Regulation 2020 (‘Major Projects Amendment’);
• draft industry-specific Secretary’s Environmental Assessment Requirements (SEARs);
• draft guidelines for environmental assessments, including guidelines for:
  • state significant development (‘SSD‘),
  • state significant infrastructure (‘SSI‘),
  • undertaking engagement, and
  • assessing cumulative impacts.
• a proposed system for recognising certain accredited professional schemes for environmental assessment practitioners, and an associated Registered Environmental Assessment Practitioner (‘REAP‘) guideline.

The exhibition documents can be found here.

This blog will focus on the proposed amendments to the EPA Regulation by the draft Major Projects Amendment (the Amendment).

Changes proposed by the Amendment

The Amendment, if passed, will introduce some significant changes into the application process for SSD and SSI.  Some of these are set out below.

Lodging and amending applications

The Amendment will require SSD and SSI applications, and applications to modify existing development consents for SSD and SSI, to be lodged on the NSW Planning Portal in a form approved by the NSW Planning Secretary. SSD or SSI applications may be amended at any time with the agreement of the consent authority, subject to specified requirements being satisfied.

Rejecting an application for SSD

Currently, an application for SSD can only be rejected by a consent authority if the application is ineligible or unclear as to the development consent sought or it does not contain all the information required by the EPA Act or EPA Regulation.

The Amendment expands these circumstances.  Importantly, a consent authority will be able to reject an application for development consent within 14 days where it is incomplete for reasons specified in writing to the applicant by the Planning Secretary.  The Department states that the expanded rejection powers will “offer additional quality control on information provided to the Department”.  However the expanded powers also introduce a level of uncertainty because the limits are ill defined.  What ‘incomplete’ means will be a matter for the Planning Secretary to determine. Further, how this power is intended to work  if an accredited practitioner (discussed below) has certified the EIS as being complete is not clear.

An application to amend a SSD development consent can similarly be rejected within 7 days.

Secretary Environmental Assessment Requirements (SEARs)

Standardised SEARs

The Planning Secretary issues SEARs for use in the preparation of EISs for SSD and SSI proposals. SEARs identify the information that must be provided in an EIS, as well as the community engagement that must be carried out.

The Amendment will enable the Secretary to issue standardised SEARs for certain types of SSD projects. Industry specific SEARS for SSD projects for hospitals, warehouses and specific sites and precincts are currently on exhibition.  The Department has indicated that they may also be prepared for schools, distribution centres and other urban development.

Requirement for a Scoping Report for SSI

An application for SSI will be required to include a scoping report. A scoping report is defined as a report prepared by the proponent having regard to the State Significant Infrastructure Guidelines (currently on exhibition) which identifies matters likely to require detailed assessment in an environmental impact statement. The Planning Secretary must consider the scoping report when preparing SEARs for a SSI proposal.

Expiry of SEARs

If enacted as presently drafted, the Amendment  provides that SEARs for SSD and SSI projects will automatically expire two (2) years after they have been issued. An applicant may apply in writing to have this period extended but only by three (3) months.

Form and Content of Environmental Impact Statements

Environmental Impact Assessment Guidelines

An EIS for SSD  or SSI is to be prepared having regard to the guidelines which are currently on exhibition.  These guidelines set out detailed requirements and standards for environmental impact assessment documents, including their form and content.

Analysis of feasible alternatives

Currently an EIS must include “an analysis of any feasible alternatives to the carrying out of the development”. The Amendment will narrow this analysis to any feasible alternatives to the “proposed manner of carrying out” the development. The focus will be on the manner or method of the development as opposed to the type of development more broadly.

Evaluation instead of justification

Currently, an EIS must state “the reasons justifying the carrying out of the development, activity or infrastructure in the manner proposed”.

Instead of requiring the EIS to justify the carrying out of the development as proposed, the Amendment will require an ‘evaluation’ of the manner of carrying out the development, activity or infrastructure, having regard to the feasible alternatives, environmental impacts, proposed mitigation measures and the relevant biophysical, economic and social considerations, including the principles of ecologically sustainable development.

Certification of Environmental Impact Statements

The Amendment will require EISs for SSD and SSI to be accompanied by a certificate prepared by a ‘registered environmental assessment practitioner’ in accordance with the ‘Registered Environmental Assessment Practitioner Guidelines’ (yet to be exhibited).

A ‘registered environmental assessment practitioner’ or ‘REAP’ is a person who is a member of an accredited professional scheme for environmental assessment practitioners. No professional schemes are presently identified in the Amendment. Professional Schemes will need to apply to the Department to be accredited as a REAP Scheme and listed in the EPA Regulation.

The information to be included in the certificate is not specified in the Amendment but the REAP Guidance currently on exhibition indicates that REAP practitioners may be required to certify that an EIS:

• complies with relevant EIS requirements in the EPA Regulation,
• has been prepared in accordance with all relevant guidelines,
• contains all available information relevant to the environmental assessment of the project,
• contains no false or misleading information,
• addresses SEARs for the project,
• identifies and addresses the relevant statutory requirements for the project,
• contains an accurate summary of the findings of any community engagement, and
• contains a simple and easy to understand evaluation of the impacts of the project as a whole.

Submissions on the Rapid Assessment Framework Reform Package, including the Major projects Amendment, must be made by 12 February 2021.

To discuss this post, please contact Sue Puckeridge on 8235 9702 or Adriana Kleiss on 8235 9718.