Posted on August 30, 2012 by Stuart Simington

Streamlining of Transitional Part 3A Project Assessments

We reported previously on the revised arrangements for Transitional Part 3A Projects.

The government has made some further (pragmatic) amendments by the Environmental Planning and Assessment Amendment (Transitional Part 3A Projects) Regulation 2012 (Regulation).

The Regulation commenced on 24 August 2012 and amends Schedule 6A of the Environmental Planning and Assessment Act 1979.

The amendments are apparently directed towards streamlining of the assessment process for the remaining transitional projects

In summary

The Regulation :

• extends the deadline for submission of a response to environmental assessment requirements issued prior to the repeal of Part 3A,
• imposes time limits on the submission of other information and allows the assessment to continue if the information is not provided,
• attempts to close a ground of challenge raised in previous Land and Environment Court cases relating to the adequacy of the environmental assessment.

In more detail

The Regulation amends the definition of a ‘Transitional Part 3A project’ to reduce the time for submitting an environmental assessment for certain transitional projects from 1 October 2013 to 30 November 2012.

To streamline the assessment process, the Regulation provides that for Transitional Part 3A projects, the Director-General is not required to accept an environmental assessment before making it publicly available in accordance with s75H(3). This amendment will allow public exhibition to proceed forthwith and also work in tandem with the following amendments.

The Regulation repeals the requirements that:

• the Director-General include a statement in the report under s75I relating to ‘compliance with the environmental assessment requirements‘; and
• the Minister consider such a statement for the purposes of s75J (2)(a) or s75O(2)(a) when determining a project or concept plan application.

These amendments have clearly been made to overcome grounds of challenge originally considered in Drake-Brockman v Minister for Planning [2007] NSWLEC 490 and most recently in Hunter Community Environment Centre Inc v Minister for Planning [2012] NSWLEC 195. In both of those cases it was alleged that the Director-General’s report to the Minister on an application did not comply with s75J(2)(g) which requires that the Director-General’s report contain ‘a statement relating to compliance with the environmental assessment requirements under this Division with respect to the project‘.

The Regulation also imposes new time limits for things that may be required of a proponent by the Director-General under s75H(6) following the receipt of public submissions:

• a response by a proponent to issues raised in public submissions – 30 days;
• a preferred project report that outlines any proposed changes to the project to minimise its environmental impact – 60 days; and
• a revised statement of commitments – 60 days.

These amendments will also streamline the assessment process. If the proponent fails to meet the time limits, the Regulation provides that the Minister may nevertheless proceed with the determination of the project or concept plan application.