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Client Update: NSW Nation Building and Jobs Plan legislation

27 March 2009

In brief: The Parliament of NSW has just passed legislation to ensure the timely delivery of Commonwealth-funded infrastructure projects under the Nation Building and Jobs Plan, to reduce the impact of the global economic recession on Australia. Partner Paul Lalich (view CV) and Lawyer Brooke Newell report.

The Nation Building and Jobs Plan (State and Infrastructure Delivery) Act 2009 (NSW) (the Act) (which came into effect on 13 March) exclusively applies to infrastructure projects that are funded under the Nation Building and Jobs Plan which includes development for the purposes of maintenance and minor building works for schools, social housing, community infrastructure provided by councils and land transport infrastructure.

The role of the Co-ordinator General

The Act enables the NSW Infrastructure Co-ordinator General to plan and oversee programs and advise on tendering and procurement procedures for the delivery of infrastructure projects. The Co-ordinator General will work with a taskforce comprising government and private sector representatives appointed by the Minister.

The Premier or any other Minister with the agreement of the Co-ordinator General will be able to make 'project authorisation orders' for the broad purpose of authorising the Co-ordinator General to carry out or take over an infrastructure project to ensure the project is delivered on time. If an order is made, the Co-ordinator General will be able to exercise all of the functions of the relevant agency in relation to the project and with the agreement of the Minister who made the order, give directions to the agency about the project, with which the agency must comply.

Development control legislation

The Environmental Planning and Assessment Act 1979 (NSW) (the EP&A Act) and all other planning and environmental legislation that require the approval of any person or body before development is carried out are defined to be 'development control legislation'. The Act permits the Co-ordinator General to declare that a specified infrastructure project is either:

  • exempt from all or specified 'development control legislation'; or
  • must be the subject of an authorisation by the Co-ordinator General.

Accordingly, unless otherwise stated in the order, Part 5 of the EP&A Act which normally regulates development by the Crown will not apply and an infrastructure project cannot be declared to be a Part 3A Major Project.

If the project is declared to be the subject of an authorisation, conditions relating to issues such as public notification, environmental protection, heritage conservation and threatened species may be imposed.

The Act ousts all legal challenges concerning the exercise of the Co-ordinator General, his or her delegate and the Minister's functions under the Act.

Other jurisdictions

New South Wales is not alone in enacting legislation to overcome existing statutory development approval processes for government-funded infrastructure projects. The New Zealand Government has recently proposed amendments to its planning and environmental laws to establish a new Environmental Protection Authority which will be required to assess projects of 'national significance1'. Canada has also recently enacted legislation to ensure that government funding can be used as soon as possible for infrastructure projects to stimulate the Canadian economy2. However, unlike the NSW legislation, which proposes no environmental assessment, the Canadian amendments seek to reduce duplicity in the environmental assessment process by eliminating reviews at the federal level, relying solely on provincial assessments.

As noted in our Client Update of 18 February 2009, the Victorian Government has recently announced its intention to fast-track development projects and introduce new major projects legislation as part of its agenda for 2009, while 'in Queensland, existing coordination and streamlining procedures are available for large infrastructure and other projects declared to be "significant projects" by the Queensland Co-ordinator General and also for those the Minister declares to be "prescribed projects" under the State Development and Public Works Organisation Act 1971.'

Footnotes
  1. Resource Management Act 1991(NZ).
  2. Infrastructure Projects Environmental Assessment Adaptation Regulations 2009.

For further information, please contact:

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