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Focus: Repeal of Part 3A

21 June 2011

In brief: The NSW Legislative Assembly has recently introduced legislation to repeal Part 3A of the Environmental Planning and Assessment Act 1979 (NSW), creating a new system for assessing projects of State significance. Projects previously dealt with under Part 3A will now be classified as either State significant development or State significant infrastructure. The legislation also makes changes to the Planning Assessment Commission, and increases the value threshold for general development being sent to the joint regional planning panels. Partner Paul Lalich (view CV) and Law Graduate Tom Tian report.

• State significant development
• State significant infrastructure
• Changes to the Planning Assessment Commission
• Joint regional planning panels
• Transitional arrangements
• Looking ahead

State significant development

Under the new Environmental Planning and Assessment Amendment (Part 3A Repeal) Bill 2011 (NSW), certain classes of development will be declared State significant development in a forthcoming State environmental planning policy. The proposed list of classes presently includes large agricultural developments, hospitals, manufacturing, mining and tourist facilities.

Notable exceptions from the proposed list include large residential, retail and commercial developments and coastal subdivision projects. This follows from an amendment to the State Environmental Planning Policy (Major Development) 2005 earlier this month (See our discussion on this in our Client Update: Changes to Part 3A approvals in NSW.)

The Minister may also declare specific developments to be State significant development by order or in a State environmental planning policy, provided he/she has obtained public advice from the Planning Assessment Commission.

The Minister will be the consent authority for State significant development, though the majority of determinations will be delegated to the Planning Assessment Commission. Consent may not be given if the development is wholly prohibited by an environmental planning instrument, but may be approved if the development is only partly prohibited.

Local planning controls and development standards may be taken into account when determining State significant development approvals. It is proposed that development control plans will not apply to State significant development in the forthcoming State environmental planning policy.

State significant infrastructure

Certain classes of development will be declared State significant infrastructure under the new policy. Current proposed classes include development by, or on behalf of, public authorities of port facilities, railroads and pipelines. The Minister may also declare specific developments to be State significant infrastructure by order or in a State environmental planning policy.

A project that is declared to be State significant infrastructure will be subject to a fast track approval process and reduced reporting requirements. Applications for approval of State significant infrastructure are lodged with the Director-General of the Department of Planning and Infrastructure. The applicant will need to prepare an environmental impact statement and any other reports required by the Director-General before the Minister can determine the development application.

Changes to the Planning Assessment Commission

The Planning Assessment Commission will have an expanded role in determining applications for State significant development. The commission will meet more frequently and gain full-time members for the first time. Meetings of the Planning Assessment Commission will now be open to the public.

Joint regional planning panels

The threshold for sending general development applications to the joint regional planning panels has been increased from project values of $10 million to $20 million, giving local councils more power. Joint regional planning panels will also be the consent authority for coastal subdivision, council or crown development over the value of $5 million, and community facilities and eco-tourist facilities over $5 million in value.

Joint regional planning panels consist of members chosen by the Minister with advice from a panel consisting of representatives from the local government and shires associations, the development industry, the Department of Planning and Infrastructure and the Public Service Commission. The appointment of the chairperson cannot be made by the Minister without the consent of the local government and shires associations.

Transitional arrangements

Part 3A will continue to apply to approved projects and projects for which environmental assessment requirements were notified or adopted. Other projects that were subject to a Part 3A project application may become either State significant infrastructure or State significant development.

Looking ahead

If the Bill is passed, it is expected that there will be a 50 per cent reduction in the number of developments dealt with by the State Government. They will now be dealt with by regional planning panels and local councils. We now wait for the proposed State environmental planning policy to finalise the classes of what projects will be categorised as State significant development and State significant infrastructure. Further ahead, the NSW Government may undertake a more comprehensive review of planning law, as the present round of changes are supposed to be an interim measure.

For further information, please contact:

• Paul LalichPartner, Sydney
  Ph: +61 2 9230 4026
  Paul.Lalich@allens.com.au
• Jim ParkerPartner, Sydney
  Ph: +61 2 9230 4362
  Jim.Parker@allens.com.au