23 May 2013

NSW planning reforms: Major projects and infrastructure

by Andrew Poulos

Public Priority Infrastructure is an entirely new category of development which is designed to simplify the planning process for the highest priority infrastructure projects.

As a result of the repeal of Part 3A of the Environmental Planning and Assessment Act 1979 (EP&A Act) in September 2011, two new categories of major project development were created:

  • State significant development (SSD) under Division 4.1 of Part 4 of the EP&A Act;
  • and State significant infrastructure (SSI) under Part 5.1 of the EP&A Act.

The White Paper and the Planning Bill set out three categories of development for the environmental impact assessment of major projects:

  • State significant development;
  • State infrastructure development (SID); and
  • Public priority infrastructure (PPI).

It is also important to discuss the manner in which "activities" under Part 5 of the EP&A Act are dealt with under the Planning Bill.

State Significant Development

SSD is carried through as a concept under Part 4 Division 4.6 of the Planning Bill, and the environmental impact assessment process for SSD under the Planning Bill is essentially the same as the process for SSD under Division 4.1 of Part 4 of the EP&A Act.

The key differences are:

  • SSD under the Planning Bill may be declared by the planning control provisions of a local plan, as opposed to a NSW planning policy (the equivalent of a State environmental planning policy (SEPP) under the current SSD provisions of the EP&A Act);
  • not all SSD will require an environmental impact statement (EIS);
  • more flexibility for determining staged development applications for SSD under section 4.31 (which is similar to the Part 3A concept plan regime under section 75P);
  • an approval for SSD under the Planning Bill will dispense with a requirement to obtain an aquifer interference approval under the Water Management Act 2000. In this regard, the White Paper states that "an aquifer interference approval… will be better integrated into the comprehensive and rigorous assessment of State significant developments and a separate approval will not be required";
  • under the EP&A Act, "objector" appeals were limited to those categories of development that were SSD as well as designated development. An objector appeal is available to a person who lodges a submission to an EIS when it is placed on public exhibition and entitles that person to commence an appeal in the Land and Environment Court within 28 days of the grant of the determination of the application for SSD. This is a merit review in which the Court stands in the shoes of the decision-maker and makes the decision afresh. Under section 9.8 of the Planning Bill, all SSD development that requires an EIS is included in the definition of "EIS assessed development" which creates objector rights of appeal. This appears to contradict a statement in the White Paper: "Applicant and objector merit appeals will remain unchanged in the new development assessment system with parties having the standard six months to appeal. Objector appeal rights for EIS assessed development will be the same as the current appeal rights for designated development".

State Infrastructure Development

The process for SID under Part 5 Division 5.2 of the Planning Bill is very similar to the environmental impact assessment process for SSI under the EP&A Act.

As with SSD under the Planning Bill, SID under the Planning Bill may be declared under the planning control provisions of a local plan, as opposed to a NSW planning policy (or a SEPP under the current EP&A Act).

Importantly, although the Planning Bill hierarchy for strategic planning includes a NSW planning policy, which is designed to be the equivalent of SEPPs, the pathway to SID is through a Local Plan. This may create an inflexibility in the planning process for the declaration of SID under the Planning Bill.

Public Priority Infrastructure

The entirely new category of development in the Planning Bill is Public Priority Infrastructure (PPI) (Part 5 Division 5.3). The creation of this new category of development is designed to simplify the planning process for the highest priority infrastructure projects.

It is designed to progress delivery of infrastructure that is essential to State development and the economy and it will encompass projects that are agreed by governments and identified in the highest level of NSW Government strategies such as the State Infrastructure Strategy and the NSW Long Term Transport Master Plan.

PPI is a different process that does not result in the issue of an approval. However, PPI attracts the protections that currently apply for critical SSI under the EP&A Act. These include limiting the right of legal challenge, and restricting the circumstances in which certain notices under environment protection legislation can issue. PPI also has the benefit of the provisions which apply to SSD/SID which state that certain statutory approvals are not required and certain statutory approvals must be issued consistently with the SSD/SID.

For planning purposes, the declaration of development as PPI will authorise the carrying out of projects to which it applies, without the need for further planning approval. The environmental assessment will then focus on the environmental management measures to minimise any adverse impacts of the Project.

The stated benefit of PPI is that environmental assessments will be based on the risks of impacts that are underpinned by robust methodologies and standard management measures.

The White Paper indicates the PPI process will take twoyears. However, before carrying out development for the purposes of PPI the proponent must prepare a Project Definition Report on the carrying out of the development, which must be publically exhibited for at least 28days. The Project Definition Report is to set out a number of matters, including:

  • the description of the development (including any staging or the carrying out of the development);
  • the measures that the proponent will take to avoid, minimise or mitigate any adverse impacts of the development; and
  • the monitoring, auditing and reporting that the proponent will undertake in relation to the environmental impacts of the development during the construction and operation stages of the development and any other matters prescribed by the regulations.

Part 5

Part 5 of the EP&A Act is concerned with "activities" (defined in similar terms to "development") which are primarily carried out by or on behalf of public authorities.

"Activities" will now be assessed under part 5 Division 5.1 of the Planning Bill as "relevant development". The duty to assess the environmental impacts of an "activity" under section 111 of the EP&A Act have been, to a certain extent, circumscribed by the Planning Bill which now requires a determining authority in its consideration of any relevant development "to examine and take into account the matters affecting or likely to affect the environment because of the carrying out of that development".

Section 111 of the EP&A Act is in broader terms, although the courts have read down the scope of the duty under section 111 to examine or take into account matters to the fullest extent "reasonably possible". Consequently, there is little change between the EP&A Act and the Planning Bill between Part 5 and the new Part 5 Division 5.1 of the Planning Bill.


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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.