13 May 2011

Part 3A projects in NSW - details of transition to new regime released

The NSW Government has today released more details on the proposed repeal of Part 3A and the transition to a new planning regime for projects of State significance, and made changes to the State Environmental Planning Policy (Major Development) 2005 (Major Development SEPP).

There will be no new declarations for projects until Part 3A is repealed and replaced with a new regime for the assessment of projects of State significance.

We now know that Part 3A will no longer apply to any residential, commercial or retail development with a capital investment value greater than $100 million, and all coastal subdivisions.

For those Part 3A projects already in the planning and assessment process that have not been determined, some will continue to be processed under Part 3A, while others will now have to lodge development applications with their local councils.

We still don't know what shape the new regime for the assessment and determination of projects of genuine State significance will take – we will have to wait until the Bill removing Part 3A is introduced into the NSW Parliament.

What happens to developments already being considered?

If a project is wholly approved, it is not affected by these changes and can still be modified in accordance with Part 3A.

If a proponent is seeking a declaration for a project and the declaration did not issue before 8 April 2011, then that project will not be a Part 3A project.

If the Director-General Requirements (DGR) were issued on or before 8 April, and are less than two years old at that date, the project will still be assessed under Part 3A. The Minister will, however, delegate his determination functions for all significant private projects to the Planning Assessment Commission.

Project declarations will be revoked for projects which

  • have been declared as a Part 3A project but for which no DGRs were issued as at 8 April 2011; or
  • have DGRs, but they were issued more than two years before 8 April 2011, and an environmental assessment had not been lodged with the Department by 8 April 2011; or
  • have an approved concept plan but the only DGRs that were issued on or before 8 April 2011 were in respect of the concept plan application.

The validity of all prior project approvals or concept plan approvals will not be affected by the revocation of a declaration.

The Department of Planning and Infrastructure has released a list of specific residential, retail, commercial development and coastal projects that will remain under Part 3A and a list of those that will be removed from Part 3A.

Importantly, the Minister will continue to determine applications made by State agencies, other Ministers and public proponents (generally infrastructure proposals).

What happens now for new major developments or for those that are no longer Part 3A?

Part 3A projects which have been stripped of that status will now be assessed under the other environmental impact assessment provisions of the Environment Planning and Assessment Act by local councils and the Joint Regional Planning Panels. The Department will establish a team to work with councils and proponents on this process.

Part 3A will no longer apply to any residential, commercial or retail development with a capital investment value greater than $100 million, and all coastal subdivisions.

Proponents of any new developments of these types will now have to lodge a development application with their local council under Part 4.

Likewise, proponents of projects where a concept plan has been approved will now have to lodge a development application with their local council under Part 4. The Major Development SEPP now says that:

  • development within the terms of the concept plan can be carried out with consent,
  • the development standards in the concept plan will have effect,
  • a consent authority must not grant consent unless the development is generally consistent with the provisions of the concept plan approval, and
  • consent can be granted without complying with the requirements under any relevant environmental planning instrument or masterplan.


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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.