Little things that matter - more changes to NSW planning laws

By Nick Thomas and Vanessa McBride.

Key Points:
Some important changes to the major projects approvals regime and the post-approval certification regimes in the Environmental Planning and Assessment Act 1979 passed through Parliament in November 2006. Some of the changes have already come into force. The biobanking regime was also passed, and is now operating.

Late last month NSW Parliament passed two significant pieces of environmental legislation:

• amendments to the Environmental Planning and Assessment Act 1979 ("Planning Act") and the City of Sydney Act 1988 ("Sydney Act"), through the Environmental Planning Legislation Amendment Act 2006; and
• the biobanking legislation, via amendments to the Threatened Species Conservation Act 1995 in the Threatened Species Conservation Amendment (Biodiversity Banking) Act 1995.

We will focus on the changes to the Planning Act and the Sydney Act in this article.

The changes to the Planning Act and the Sydney Act transfer greater control over the approval of major projects to the State Government, and allow broader review by the Courts of the post-approval certification regimes for development under the Planning Act. We have highlighted some of the more important changes below.

Changes to the Part 3A major projects approval regime

When the Part 3A approval regime for major projects was introduced last year, it was heralded as a win for both certainty and flexibility in the delivery of major public infrastructure and private sector projects.

The Part 3A regime applies to development which the Minister for Planning declares to be a "major project". Part 3A requires environmental assessment of a major project and approval by the Planning Minister before the project can proceed.

The central planks of Part 3A are the preparation (by the Director-General of the Department of Planning) of environmental assessment requirements ("EARs") for a project, and the carrying out of an environmental assessment (by the proponent) in accordance with those EARs. The EARs determine the form, content, scope and process of environmental assessment for a project. The proponent's assessment document must be publicly exhibited.

As with most new legislative regimes, Part 3A has had its teething problems. Concerns have been raised about several legal aspects of the regime, and there have been legal challenges in Court based on different assertions about how Part 3A works. In addition, earlier this year, it was claimed in Parliament that Part 3A only allowed the Planning Minister to declare individual projects as Part 3A projects, rather than generic classes of development.

There are several changes to the Part 3A regime, some of which are intended to address these issues. Some of the more significant changes are highlighted below:

• The most important amendment is that the requirement to comply with the EARs, as a pre-requisite to approval, has been removed. Currently, the Minister cannot approve a project unless the EARs "have been complied with". The amendments will instead require the Director-General to provide a "statement relating to compliance with" the EARs and the Planning Minister to consider that statement.
• There is an attempt to deal with the perceived problem that Part 3A doesn't allow for the classification of classes of development as Part 3A development. The enabling provisions of Part 3A now specifically refer to the declaration of "classes" of development.
• The amendments will allow the Planning Minister to approve some projects which would be wholly prohibited under a planning instrument, were it not for Part 3A. The current provisions only allow the approval f a development which would otherwise be wholly prohibited if it has been declared to be a "critical infrastructure" development.
• The provisions relating to concept plans, and further planning approvals which may be required after a concept plan has been approved, have been refined, to facilitate the use of concept plans in strategic planning. Among other things, a proponent may apply for a concept plan approval and a rezoning at the same time, and the Planning Minister may effect a rezoning (via an amendment to a planning instrument which provides for the zoning of the relevant land) by means of an order published in the Gazette.
• The exemptions from approvals under other environmental legislation which currently apply to approved projects, by virtue of section 75U, will also apply to investigatory works for the assessment of those projects prior to approval.

The Government emphasised that the amendments relating to the EARs were not prompted by the legal challenge to the assessment process for the Anvil Hill coal mine, and correctly stated that the amendments did not override that legal challenge. We have discussed that legal challenge - and the landmark decision it brought about - in another article in this edition of Insights.

Changes to post-approval certification

The amendments remove an important subjective element for a certifying authority in the determination of applications for construction certificates, subdivision certificates and occupation certificates. Instead of providing that the certifying authority must be satisfied that certain pre-requisites have been fulfilled before issuing a certificate, the amendments require that those matters be established objectively.

This may open up the possibility for more legal challenges to certificates, as the Land and Environment Court may now have authority to decide whether the relevant pre-requisites have been fulfilled.

Other planning amendments

Other amendments which have been made include:

• technical changes to provisions relating to development contributions;
• reductions in the available time frames for determining State Government development applications; and
• the extension of some time frames for commencing prosecutions for some alleged breaches of the Planning Act.

Changes to the Sydney Act include:

• revisions to the process for appointing members of the Central Sydney Planning Committee ("CSPC"), which determines development applications for major development proposals in central Sydney; and
• re-establishment of a RailCorp concurrence function, under State Environmental Planning Policy No. 63 - Major Transport Projects, to protect future metropolitan rail expansion corridors in respect of development applications determined by the CSPC.

Implications

Developers can take comfort from a potentially reduced risk of legal challenge to a Part 3A approval. However, the amendments should not be viewed as an opportunity to avoid compliance with EARs. The Director-General can still refuse to publicly exhibit an assessment if he considers that it does not adequately address the EARs, and the Minister will need to consider a statement from the Director-General about compliance with the EARs when deciding whether to grant approval.

The amendments enhance both the certainty and the flexibility available under Part 3A. Whether, and, if so, how, they affect the level of environmental protection may now depend more on the Department and the Planning Minister than before.

For further information, please contact Nick Thomas.