Posted on October 17, 2011 by Frances Tse

More on the repeal of Part 3A…

On 1 October 2011, the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 (Amendment Act), the Environmental Planning and Assessment (Part 3A Repeal) Regulation 2011 (Amendment Reg), and the State Environmental Planning Policy (State and Regional Development) 2011 (SEPP) commenced.

The amendments to the Environmental Planning and Assessment Act 1979 (EPA Act) made by the Amendment Act and the consultation draft of the SEPP were previously discussed in several posts on this site.

This post will discuss the key amendments made by the Amendment Reg to the EPA Act and EPA Reg.

Amendments to EPA Act

Transitional part 3A projects

The Amendment Reg amends the transitional arrangements in the EPA Act in relation to the repeal of Part 3A.

‘Transitional Part 3A projects’ as defined in Schedule 6A of the EPA Act (inserted by the Amendment Reg) are:

• approved projects (whether approved before or after 1 October 2011), and
• projects for which environmental assessment requirements (EARs) for approval to carry out the project (or for approval of a concept plan for the project) were notified or adopted before 1 October 2011, or if the project is residential, commercial or retail, or coastal subdivision development, before 8 April 2011 (Sched 6A, cl2(1).

However, in certain circumstances, including where EARs were notified some time ago, but environmental assessments were not duly submitted within 2 years, or where a determination has been made in respect of a concept plan application, the project is not, or ceases to be a transitional Part 3A project (Sched 6A, cl2(2) and (3)).

Whether a project is a ‘transitional Part 3A project’ or not is important because Part 3A of the EPA Act (as in force immediately before 1 October and as modified under new Schedule 6A after that date) continues to apply to transitional Part 3A projects (Sched 6A, cl3(1) of EPA Act).

Lapsing of approval for transitional Part 3A projects

Proponents for a project that is a transitional part 3A project will need to ensure that the project is commenced before the approval for that project lapses.

An approval for a transitional Part 3A project will lapse on the day that is 5 years after 1 October 2011 unless:

• the project is physically commenced on the land before that lapsing date, or
• the approval is subject to a condition that provides for the approval to lapse on an earlier or later day, or
• if the approval is for a use, that use actually commences before the day that the approval would otherwise lapse (Sched 6A, cl11).

Council as consent authority for certain development

Schedule 6A of the EPA Act has also been amended by the Amendment Reg to clarify that the relevant council is the consent authority for development where:

• the development application was made but not determined before 1 October 2011, and
• the JRPP was exercising the functions of the consent authority for that development, and
• because of the commencement of Schedule 4A of the EPA Act on 1 October 2011 (which provides for the types of development for which JRPPs may be authorised to exercise consent authority functions of councils) the JRPP ceased to exercise the consent authority functions for that development (Sched 6A, cl15(1)).

There are only three exceptions to the above one of which is where the development application was for development that has a capital investment value of over $10 million (Sched 6A cl15(3)(a)).

Amendments to EPA Reg

Assessment process for SSD and SSI

The Amendment Reg also inserts and amends provisions in the EPA Reg in support of the commencement of the assessment process for state significant development (SSD) and state significant infrastructure (SSI).

Provisions of interest in relation to assessment process for SSD include:

• For SSD that is mining or petroleum development and where a public authority is the proponent of that development, landowner’s consent is not required. The public authority only needs to advertise the development in a local newspaper no later than 14 days after the application is made (cl 49).
• The minimum public exhibition period for SSD is 30 days (cl 83).
• The deemed refusal period for SSD is 90 days except where the submission period for the SSD is longer than 30 days, in which case, the deemed refusal period is extended by the part of the submission period that exceeds 30 days (cl113(1)(c) and (5)).
• The Planning Assessment Commission (PAC), when advising the Minister on the State or regional significance of a development (which is required before the Minister may declare that development to be SSD) is to consider any general issues relating to the State and regional planning significance that the Minister has requested the PAC to consider (cl124E(1)).
• The EPA Reg provides for the practical steps the Minister may direct a consent authority to do after the Minister declares development to be SSD (cl124F).

Provisions of interest in relation to the assessment process for SSI include:

• Landowner’s consent is not required for SSI that is to be carried out by a public authority, or SSI that is critical SSI, or is SSI that involves linear transport infrastructure, utility infrastructure, or infrastructure on land with multiple owners designated that is by the Director-General (cl193(1)).
• If landowner’s consent is not required, the proponent must nevertheless notify the SSI application to the landowner or advertise the SSI application in a local newspaper (cl193(4)).
• The minimum exhibition period of the environmental impact statement (EIS) for SSI is 30 days (cl194).

The EPA Reg now also prescribes the relevant fees for SSD and SSI applications.

Requirements for Environmental Impact Statements

Another key change to the EPA Reg is the amendment to the process for preparing environmental impact statements. The process now includes the following:

• the applicant or proponent must first write to the Director-General of Planning and Infrastructure (D-G) requesting EARs,
• obligations are imposed on the D-G in relation to the preparation of the EARs, such as consultation with relevant public authorities,
• if the development application or application for approval to which the EIS relates is not made within 2 years of notification of the EARs, further consultation with the D-G in relation to the EARs is required,
• the D-G may waive the requirement for the developer to apply to the D-G for EARs except in relation to specified SSD and integrated development (Sched 2, cl3(9)).

Other requirements for the preparation of EIS, such as the contents of EIS are largely the same as before 1 October 2011.

State Environment Planning Policy (State and Regional Development) 2011 (SEPP)

The SEPP that was made on 1 October 2011 is largely the same as the consultation draft of the SEPP.

The following is a summary of some of the provisions of the SEPP that were not in the consultation draft:

• Clause 23 of the SEPP is inserted to clarify that development is not SSD if the development application was made, but not determined, before the development was identified as SSD and the consent authority for that development was a council,
• The SEPP amends the transitional provisions of the State Environment Planning Policy (Major Development) 2005 (Major Development SEPP) so that it is clear the Major Development SEPP continues to apply to residential commercial or retail development and coastal subdivision development that are transitional Part 3A projects,
• Certain development at Barangaroo is included in the list of SSD in Schedule 2.
• development the subject of five applications for approval under Part 3A of the Act are now declared to be SSI (Sched 4).

With the repeal of Part 3A, Councils and proponents of projects should determine whether projects that are on foot are ‘transitional Part 3A projects’ such that the assessment provisions under Part 3A continue to apply or whether new applications for the development need to be made. Additionally, Councils and proponents who wish to carry out SSD or SSI should familiarise themselves with the new assessment processes in the EPA Act and EPA Reg.