Posted on April 8, 2024 by Megan Hawley and Thuy Pham 7

“Single Proposed Development” and Likely Impacts in the Context of State Significant Development

It is not unusual for proponents of major development and infrastructure projects to have to grapple with the question of whether an ancillary, albeit necessary, piece of infrastructure for the project, such as a road, electricity transmission line, or a pipeline for the transmission of gas or water must be included in a development application for the project or be assessed in connection with the project.

See our previous articles here, here and here regarding how the impacts of such infrastructure can be likely impacts of the development, which must be considered under s4.15 of the Environmental Planning and Assessment Act 1979 (EPA Act), even where the infrastructure is not part of the development application.

State significant development and ‘single proposed development’

In the context of State significant development, s4.38 of the EPA Act provides:

4.38 Consent for State significant development

(4) If part of a single proposed development that is State significant development requires development consent to be carried out and the other part may be carried out without development consent—

(a) Division 5.1 does not apply to that other part of the proposed development, and

(b) that other part of the proposed development is taken to be development that may not be carried out except with development consent.

The consequence is that infrastructure which might be able to be carried out by a public authority proponent without development consent, for example, under the State Environmental Planning Policy (Transport and Infrastructure) 2021 can instead be taken to be part of the State significant development, for which consent can be granted under Part 4 of the EPA Act.

“Single proposed development” is not defined in the EPA Act, despite the phrase being picked up by several other similar provisions in the State Environmental Planning Policy (Planning Systems) 2021 concerning State significant development (sections 2.6 and 2.7) and State significant infrastructure (section 2.13).

The Land and Environment Court recently considered a judicial review challenge to a decision to grant consent to an open cut silver, lead and zinc mine, which was State significant development, on the basis that no assessment had been undertaken of the impacts of a new 66kV electricity transmission line required for the project.

The key questions before the Court were:

1. Whether the transmission line was part of the ‘single proposed development‘ under s4.38 of the EPA Act; and
2. In the alternative, whether the impacts of the transmission line were required to be considered as ‘likely impacts of the development’ under 4.15 of the EPA Act?

Duggan J answered no to both questions.

In determining whether the transmission line was part of a single proposed development, Her Honour referred to s4.38 being limited by the scope of the particular development application (DA) lodged. Her Honour said it is not for the consent authority to determine whether every integral or necessary part of a proposal has been included in the DA. However, if the development proposed in the DA is insufficient to permit the mandatory environmental assessment to be undertaken, then the DA cannot be approved.

Likely impacts of the development

In respect of the s4.15 consideration, Her Honour referred to previous caselaw, discussed in our earlier articles linked above, and held that while there was a need for the transmission line, the means by which it was to be provided had not yet been identified, and there was uncertainty about the route of the transmission line. Factors such as whether landowners would grant easements and the location of environmentally sensitive lands would affect the route selected.

Her Honour held that the lack of certainty of the route at the time of determining the DA rendered the impact of the transmission line “so remote as to be incapable of being relevantly determined as a ‘likely impact’ of the development.”

The judgment in Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Limited [2024] NSWLEC 17 can be accessed here.

If you have any questions regarding this article, please leave a comment below or contact Megan Hawley on 02 8235 9703 or Thuy Pham on (02) 8235 9731.