17 Jun 2011

New bill sets out replacement for Part 3A and planning approval for state significant developments

We now have more - but not all - the details of NSW's new planning regime for state significant developments with the introduction into NSW State Parliament last night of the Environmental Planning and Assessment Amendment (Part 3A Repeal) Bill 2011.

The new state significant development laws at a glance

Part 3A of the Environmental Planning and Assessment Act 1979 (Planning Act) will be repealed, but many of the state significant projects already being considered will be dealt with under a transitional regime announced in May are now in the Part 3A Repeal Bill.

There will be two separate regimes for state significant projects:

  • state significant development will require development consent from the Planning Minister or a delegate under a new division 4.1 in Part 4 of the Planning Act; and
  • state significant infrastructure will require approval from the Planning Minister under a new Part 5.1 of the Planning Act.

The Minister is to delegate his approval functions to the Planning Assessment Commission for state significant development projects lodged by private developers and controversial projects. The Minister's determination role will generally be limited to state significant infrastructure proposals by State agencies or public authorities.

The Government will also reduce the scope of projects which it is prepared to consider giving "state significant" status. It claims that the types of developments that can be state significant under the proposed amendments have been reduced by approximately 50 percent.

Projects which are not given state significant status will be dealt with under the existing regime – most likely development consent under Part 4 of the Planning Act, with the relevant local council or joint regional planning panel as consent authority. The Part 3A Repeal Bill also provides some important changes for the make-up of joint regional planning panels and the types of development which will be referred to them.

As is the case with Part 3A, a project will be either state significant development or state significant infrastructure if it is declared to be in a State environmental planning policy or a Ministerial order. However, the Minister will be able to make an order for state significant development (ie. call in projects not otherwise declared as a state significant development) only after taking advice from the Planning Assessment Commission – and that advice, and the Minister's determination to call it in, must be published.

It will no longer be possible to approve wholly prohibited state significant development, but partly prohibited state significant development can still be approved.

Certain aspects of the Part 3A regime have been retained (eg. removing the need for some approvals under other laws) and included in either or both of the new regimes.

What is state significant development or infrastructure?

The criteria for state significant development or infrastructure are:

  • projects delivering major public benefits, such as large-scale essential transport and utility infrastructure, and social services to the community;
  • infrastructure projects with significant environmental impacts and projects of a significantly hazardous or environmentally-polluting nature;
  • projects of significant economic benefit to the State or national economy, such as those with high levels of financial investment and employment generation; and
  • complex or precinct-scale projects (including where projects cross over multiple council and other jurisdictional boundaries) requiring a co-ordinated assessment to reduce overlapping approvals.

The classes of development that will be state significant

We don't know the full details yet of what is and isn't within each class, as they will be in a new State Environmental Planning Policy (State and Regional Development) 2011, to be known as the State and Regional Development SEPP, but what we do know from the Policy Statement on development classes is

  • there will be 24 classes of state significant developments, which is a reduction from the previous regime;
  • higher thresholds mean that fewer projects will fall within the definition;
  • residential, commercial and retail projects which were previously accepted for assessment under Part 3A purely on the basis of their capital investment value will no longer be state significant.

The Policy Statement also identifies seven sites where some or all development is to be identified as state significant, including parts of Sydney Harbour such as Barangaroo.

How will the call in process work?

After the applicant or council submits a written request, the Minister must publish it and then refer it to the Planning Assessment Commission to consider if the proposal is of State or regional planning significance.

Although they are not in the Bill, the Policy Statement says that the criteria include (but are not limited to) whether the proposal:

  • delivers significant public benefits for the State or regional communities, including those that directly relate to actions and goals in State or regional strategies and plans (including the State Infrastructure Strategy and projects endorsed by Infrastructure NSW); or
  • is complex, contentious or environmentally hazardous and local authorities have requested or require State assistance; or
  • is a precinct-scale or linear project that crosses over multiple local government areas or other jurisdiction boundaries, and requires co-ordinated assessment.

If rezoning for prohibited development is required, that will occur concurrently.


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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.