22 Jul 2021

Changes for major project assessments and approvals in NSW, as Rapid Assessment Framework rolls out

By Nick Thomas, Brendan Bateman, Claire Smith and John Clayton

Major project applications and assessments will need to take into account detailed guidelines, and environmental impact statements will need accredited professional sign-off, as the NSW Government rolls out its Rapid Assessment Framework, in three stages culminating on 1 July 2022. Stage 1 commenced on 1 July 2021.

The NSW Government has begun its roll-out of the Rapid Assessment Framework (RAF) – a reform of the State significant development (SSD) and State significant infrastructure (SSI) regimes with a view to streamlining assessment processes, producing better quality assessments, and delivering better agency co-ordination and community engagement.

The RAF is given effect by amendments to the Environmental Planning and Assessment Regulation 2000 (Planning Regulation). While the amendments were made on 1 July 2021, they will have a staged implementation – Stage 1 commenced on 1 July 2021, Stage 2 commences on 1 October 2021 and Stage 3 commences on 1 July 2022.

The key components of the RAF are:

  • a suite of guidelines for the assessment of SSD and SSI projects;
  • environmental impact assessment (EIA) guidelines on engagement, social impact assessment and cumulative impact assessment;
  • industry-specific standard form Secretary's Environmental Assessment Requirements (SEARs) for environmental impact statements (EISs);
  • establishment of a registered environmental assessment practitioner (REAP) scheme to provide quality assurance on EISs for SSD and SSI projects; and
  • upgrades to the ePlanning portal and other online services.

The RAF has been in the making for a long time, with the Department of Planning Industry and Environment (DPIE) releasing draft guidelines for comment in late 2020 with earlier draft guidelines published in 2017.

The three stages of the RAF are outlined below.


Stage 1 – SEARs expiry

All SEARs issued from 1 July 2021 will have an expiry of 2 years (subject to any extension given by the Secretary).

Under the previous regime, SEARs, once issued, could continue to apply indefinitely to a project. This would often mean that, where there was a delay between issuing the SEARs and lodging the EIS, it would not be possible to capture:

  • any key environmental issues that emerged after the date on which the SEARs were issued; or
  • any relevant changes to the regulatory landscape that arose post-SEARs.

The changes which commenced on 1 July 2021:

  • introduced automatic expiry on SEARs for SSD and SSI projects 2 year after they have been issued – the practical effect of this is that an EIS cannot be submitted more than 2 years after the SEARs for that project have been issued;
  • allow the DPIE Secretary to extend that 2 year period (on one or more occasions) provided that the total period of extension does not exceed 2 years (that is, the Secretary may extend the SEARs period to a total period of up to 4 years); and
  • include some sunset dates which apply to the SEARs that have already been issued prior to 1 July 2021. In brief:
    • all SEARs issued before 1 July 2019 will expire on 30 November 2021; and
    • all SEARs issued from 1 July 2019 up to 30 June 2021 will expire 1 July 2023.

Even if the sunset dates above apply but have not been reached (ie. the SEARs have not formally expired), if the EIS is not lodged within 2 years of the receipt of SEARs, the SSD applicant or the SSI proponent will need to consult with DPIE on the preparation of the EIS.

Proponents will need to be aware of the potential expiry of SEARs. If an EIS has not been lodged and the expiry date approaches, the expiry of the SEARs may present a risk of delay to a project in one of two ways:

  • the time taken for DPIE to reissue SEARs may be significant; and
  • the substance of the SEARs themselves may change requiring reassessment in relation to various additional environmental issues. For example, this might require technical studies to be redone.

It will therefore be important for proponents to request an extension at an early stage if it appears that the EIS will not be able to be finalised in time.

From 1 July 2021, all SSD applications, including modifications, will also require payment of application fees before they can be considered lodged. This will include, providing a Quantity Surveyor’s Report, where required, to support the Capital Investment Value cited in the application.


Stage 2 – Guidelines and industry-specific SEARs

Two key aspects of the reforms will commence on 1 October 2021.

Guidelines

First, new SSD and SSI Guidelines will come into effect. The Planning Regulation will require:

  • applications for SSD and SSI to be prepared having regard to the respective Guidelines;
  • applications to modify SSI or SSI approvals to be made having regard to the respective Guidelines;
  • the person preparing an EIS to have regard to the respective Guidelines in preparing the EIS.

In practice, this is likely to mean that the Guidelines will govern the content and form of EISs and application documents.

The Guidelines provide detailed guidance on various matters including:

  • preparing a scoping report;
  • preparing an EIS;
  • preparing a submissions report;
  • preparing an amendment report;
  • preparing a preferred infrastructure report (in the context of SSI); and
  • preparing a modification report.

The purpose of the Guidelines is to improve the quality of environmental assessment documents and therefore improve the efficiency of the assessment process. The theory is that delays in assessment will be reduced if DPIE can be confident that the form and content of assessment documents complies with the relevant Guidelines.

The following Guidelines will also apply from 1 October 2021:

  • undertaking engagement;
  • cumulative impact assessment; and
  • social impact assessment.

According to the Planning Regulation amendments, the Guideline-based amendments do not apply to EISs which the DPIE Secretary receives on or before 31 March 2022.

The Guidelines are likely to have the most significant effect on the major project assessment and approvals processes. They are quite prescriptive and, although the Planning Regulation requires only that proponents and regulators "have regard to" the Guidelines, it remains to be seen how this will operate in practice, especially when EISs are subject to DPIE review and comment.

It is anticipated that the Guidelines will improve the quality and consistency of stakeholder engagement and of EISs and other assessment documents, and hopefully accelerate the assessment process as a result, which should lead to overall project cost savings. These would be very positive outcomes for project assessments and approvals.

Potential effects of the Guidelines also include that there will be less flexibility and some additional cost for proponents in the form and content of assessment documents.

Industry-specific SEARs

Second, DPIE will no longer need to consult with public authorities on the preparation of SEARs for SSI and SSD except where:

  • the project would be designated development if it wasn't SSD or SSI; or
  • the project would be wholly or partly prohibited; or
  • the project is the subject of a concept development application.

Instead, DPIE will be able to issue industry-specific SEARs that have been developed in advance in consultation with the relevant public authorities. DPIE would be able to issue the specific SEARs within 7 days instead of the 28-day timeframe currently provided. This should accelerate the production of SEARs and make them more predictable.


Stage 3 – REAP

The third stage of amendments introduces the Registered Environmental Assessment Practitioners (REAP) scheme.

The REAP scheme is designed to ensure that EISs benefit from improved quality assurance. Under the scheme:

  • environmental practitioners can be accredited to be REAPs, by completing an accredited industry course; and
  • any EIS must be accompanied by a certification from a REAP that it meets certain requirements including, among others, that it complies with the relevant REAP Scheme guidelines.

So far, two industry courses have been accredited:

  • the CenvP impact assessment regime operated by the Environment Institute of Australia and New Zealand (EIANZ); and
  • the Planning Institute's "planner plus (EIA)" program.

The REAP scheme is the first of its kind for EIA in Australia. Similar schemes are in place for contamination assessment, and an EIA accreditation scheme has been considered at the Commonwealth level. The REAP scheme provides an opportunity to increase confidence in major project EIAs.

Given that the amendments do not commence for another year, there is some time for practitioners to obtain accreditation under the REAP scheme. However, to the extent that practitioners intend to continue preparing EIS documents, it will be important for them to obtain an accreditation as soon as possible.


NSW's planning reform pipeline

These reforms provide the next step in the trend of incremental planning reforms in NSW. The NSW Government is also working on standardising development approval conditions, and NSW Parliament is currently considering major reforms to development contributions.

Other key reforms in the pipeline include improvements to the planning proposal process and a whole of Government framework which prioritises, accelerates and improves coordinated delivery of strategic precincts.

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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.