Focus: Proposed State Environmental Planning Policy (State and Regional Development) 2011
23 August 2011
In brief: The O'Farrell government has promised sweeping changes to New South Wales' planning laws, most notably the repeal of Part 3A of the Environmental Planning & Assessment Act 1979 (NSW). We have already seen the Environmental Planning and Assessment Amendments (Part 3A Repeal) Act 2011 (NSW) receive assent on 27 June 2011. The latest move is the release of the draft State Environmental Planning Policy (State and Regional Development) 2011 on 18 August 2011. The proposed SEPP identifies development that will be State significant development, State significant infrastructure and critical State significant infrastructure. Partner Jim Parker (view CV) and Lawyer Lara Neate report.
How does it affect you?
- Business can now identify with certainty what development constitutes State significant development, State significant infrastructure and critical State significant infrastructure, and therefore what planning assessment and approval processes will apply.
- Joint regional planning panels (JRPPs) will become the determining authority for development identified in the new Schedule 4A of the Environmental Planning & Assessment Act 1979 (NSW) (the EP&A Act).
Background
The Environmental Planning and Assessment Amendments (Part 3A Repeal) Act 2011 (NSW) (the Amendment Act) has not commenced and a commencement date has not yet been announced. However, once in effect the Amendment Act will repeal Part 3A of the EP&A Act and create a new system for assessing projects of State significance.
Most projects that would previously have been assessed under Part 3A will be identified as either State significant development, State significant infrastructure or critical State significant infrastructure. These will be subject to the new development assessment and approval processes described below. Development that is not identified as State significant development, State significant infrastructure or critical State significant infrastructure will be assessed under Part 4 of the EP&A Act.
Individuals and organisations are invited to comment on the State Environmental Planning Policy (State and Regional Development) 2011 (the Proposed SEPP) before 2 September 2011.
Proposed SEPP
Where there is a conflict between the Proposed SEPP and any other environmental planning instrument, the Proposed SEPP will prevail.
State significant development
State significant development is identified in Schedules 1 and 2 of the Proposed SEPP.
Schedule 1 includes development in 24 specified categories, including intensive agriculture and aquaculture, certain mining and petroleum activities, extractive industry, hospitals, medical centre and health research facilities, educational establishments, port facilities and wharf or boating facilities and road, rail and related transport facilities. To a large degree, these 24 categories mirror the categories to which Part 3A currently applies, as identified in Schedule 1 of the State Environmental Planning Policy (Major Development) 2005. However, many of the thresholds for size or value have changed.
Schedule 2 of the Proposed SEPP includes development of certain types on 11 identified sites, including development that has a capital investment value of more than $10 million on the Barangaroo Site.
State significant development will be assessed under the new Division 4.1 of Part 4 of the EP&A Act, under which the Minister is the consent authority.
State significant infrastructure
Development is declared to be State significant infrastructure in two circumstances.
The first circumstance is where both of the following apply:
- the development is, by the operation of any SEPP, permissible without development consent under Part 4 of the EP&A Act, and
- the development is of a type specified in Schedule 3 of the Proposed SEPP.
Schedule 3 includes various works carried out by public authorities, pipelines for which a licence is required under the Pipelines Act 1967 (NSW) and certain development in reserved land under the National Parks and Wildlife Act 1974 (NSW).
The second circumstance is were development is specified in Schedule 4 of the Proposed SEPP. At the current time, Schedule 4 is blank. Section 115U(4) of the EP&A Act will allow specified development on specified land to be declared State significant infrastructure by an SEPP or by an order of the Minister that amends an SEPP. These declarations will be included in Schedule 4 of the Proposed SEPP.
State significant infrastructure will be assessed under a new Part 5.1 of the EP&A Act, which requires approval from the Minister.
Critical State significant infrastructure
Development specified in Schedule 5 of the Proposed SEPP is critical State significant infrastructure. This includes certain Pacific Highway projects, the M5 West Widening and certain rail infrastructure projects associated with North West Rail Link and CBD light rail extension. Critical State significant infrastructure may be carried out without a development consent under Part 4 of the EP&A Act.
JRPPs
JRPPs are stand-alone statutory bodies consisting of members appointed by the State government and local Councils. The Proposed SEPP gives JRPPs specific functions in relation to development listed in the new Schedule 4A of the EP&A Act (which includes development that has a capital investment value of more than $20 million, Council related and crown development over $5 million, private infrastructure, community facilities and eco-tourist facilities over $5 million and coastal subdivision). The functions of the JRPPs may include:
- granting development consents, and allowing modifications of development consents previously granted by JRPPs in accordance with Part 4 of the EP&A Act;
- the functions of Councils under various sections of the EP&A Act, including sections relating to planning agreements, local infrastructure contributions, special infrastructure contributions and staged development.
The relevant Council remains the consent authority for all other aspects of a development.
Consequential amendments
The Proposed SEPP makes amendments to various existing SEPPs (including the State Environmental Planning Policy (Major Development) 2005, State Environmental Planning Policy (Infrastructure) 2007 and State Environmental Planning Policy (Western Sydney Parklands) 2009) and other environmental planning instruments (including numerous Local Environmental Plans), to remove provisions related to Part 3A of the EP&A Act and to allow for the introduction of State significant development and State significant infrastructure assessment processes.
For further information, please contact:
- Jim ParkerPartner,
Sydney
Ph: +61 2 9230 4362
Jim.Parker@allens.com.au