Posted on July 8, 2021 by Sue Puckeridge and Adriana Kleiss 54

Major Projects Reform – Introduction of the Rapid Assessment Framework

In January 2021 we blogged on the State Government’s proposed Rapid Assessment Framework (RAF) for the regulation of State Significant Development (SSD) and State Significant Infrastructure (SSI).  We set out in that blog the general scope of the proposed amendments which are aimed at improving the efficiency, quality and transparency of the assessment and administration of major projects.

The Environmental Planning and Assessment Amendment (Major Projects) Regulation 2021 (Amending Reg) was made on 1 July 2021.  The Amending Reg implements the proposed RAF reforms in three stages.

Stage 1

Stage 1 commenced on 1 July 2021.  These changes apply to the Planning Secretary’s  (Secretary) environmental assessment requirements (SEARS).

SEARS issued for SSD and SSI now only operate for 2 years.  The change is aimed at ensuring that the environmental assessment of the project is based on relevant and current information.

For SSD, SEARS will expire 2 years from the date on which the Secretary last gave notice under clause 3(5) of Schedule 2 of the Environmental Planning and Assessment Regulation 2000 (Reg).  For SSI, if the application for approval is not made within 2 years from the date on which the Secretary last gave notice of the SEARS under s5.16(4) of the Environmental Planning and Assessment Act 1979 (Act), consultation with the Secretary is required for the preparation of the environmental impact statement (EIS). 

Applications to extend the SEARS may be made in writing prior to expiry but the total extension period cannot exceed 2 years.  This is different from the public exhibition draft, which proposed a maximum 3 month extension. 

Sunset provisions for SEARS issued prior to 1 July 2021 have been introduced.  SEARS issued prior to 1 July 2019 will expire on 30 November 2021.  SEARS issued between 1 July 2019 and 1 July 2021 will expire on 1 July 2023.

Stage 2

The following changes will commence on 1 October 2021.

Lodgment and Rejection of Applications

• Applications for development consent for SSD or an SSI approval must be lodged in the approved form on the Planning Portal.  They must be accompanied by an EIS which complies with the SEARS. DPIE has advised that as of 1 July 2021, all SSD applications, including modifications, will require payment before they can be considered lodged.
• New powers to reject applications will apply.  A consent authority may reject:
  • an application for SSD within 14 days of its receipt if it is not in the approved form, not accompanied by an EIS or if it is otherwise considered by the Secretary to be incomplete, or
  • an application to modify a SSD consent within 7 days of its receipt if it is not in the approved form or is otherwise considered by the Secretary to be incomplete.

Preparation of an EIS

• Importantly the requirements for an EIS change.  An EIS received by the Secretary after 31 March 2022 must be prepared having regard to newly introduced guidelines. In the case of an SSD project, the EIS must be prepared having regard to the State Significant Development Guidelines (SSD Guidelines).  In the case of SSI, the State Significant Infrastructure Guidelines (SSI Guidelines) must be considered.  The aim is to ensure the EISs are consistent, comprehensive and easy to understand.
• The SSD Guidelines and SSI Guidelines can be found here. The guidelines set out clear standards for:
  • the preparation of applications for consent and modifications of applications and consents,
  • the requirements for an EIS,
  • exhibiting an EIS and responding to submissions, 
  • the assessment of  and determination of an application, and
  • post approval requirements.

Amendment of Applications

• New procedures will regulate the amendment of applications for development consent for SSD and applications for SSI approvals, and the modification of such development consents or approvals.  Notably, such applications will need to be prepared having regard to the SSD Guidelines or the SSI Guidelines as relevant.  

Assessment of Applications

• Any response to a request from the Secretary to respond to issues raised by submissions must be in accordance with the SSD Guidelines.
• Consultation with public authorities will be limited so that when preparing SEARS for SSD applications, the Secretary is only required to consult on a project by project basis for development which would have been designated development but for s4.10 of the Act, is partly or wholly prohibited or is a concept development application.
• Industry specific SEARs have been prepared for specific types of development (e.g.  hospitals, schools, data centres, hotels).  These SEARs will be used where the development is wholly permissible, does not meet the threshold for designated development and is not a concept development application.  Consultation with government agencies will not required for development that satisfies these requirements.

Stage 3

Stage 3 commences on 1 July 2022.

This stage introduces the Registered Environmental Assessment Practitioners (REAP) scheme, which is intended to provide quality assurance for EISs. As of this date, a REAP must certify an EIS accompanying an application for SSI or SSD.  The certification must be a declaration to the effect that:

• the EIS has been prepared in accordance with the Reg,
• the EIS contains all available information relevant to the environmental assessment of the development, activity or infrastructure to which it relates,
• the information in the EIA is neither false or misleading, and
• the application contains the information required to be provided under the Registered Environmental Assessment Practitioner Guidelines.

The SSD Guidelines and SSI Guidelines each contain a pro forma declaration.

To become a REAP, a person must generally have a planning or environmental related degree and over 10 years of experience. Additionally they will need to be certified under a professional scheme specified on the planning portal and be able to demonstrate extensive knowledge and skills when applying for registration.  To date, two REAP Schemes have been accredited: The Planning Institute of Australia’s,  PIA Registered Planner Plus (EIA) Scheme and the Certified Environmental Practitioner’s  CEnvP Impact Assessment REAP Scheme.  Applications can be made to these organisations for accreditation now.

In addition to matters set out above, the Government has also prepared the following Guidelines with the aim of improving the assessment of SSD and SSI:

• Undertaking Engagement Guidelines for State Significant Projects
• Cumulative Impact Assessment Guidelines for Significant Projects and
• Social Impact Assessment Guidelines

Summary

The changes set out above are significant and substantial.  They are aimed at improving the assessment of State significant projects by improving efficiency, timeframes, the quality of the application and community engagement.  Applicants will need to pay close attention to the new standardised requirements when preparing an EIS for an SSD or SSI project and ensure that the application responds to and satisfies the new requirements.  A failure to do so risks rejection of the application and delay to its assessment.

A copy of the Amending Reg can be found here.

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