13 May 2011
As foreshadowed in our Member Alert this morning, the NSW Government has today published changes to the Major Development SEPP. They have also published details of which pending Part 3A applications will be terminated, and which ones will continue to be dealt with under Part 3A (for now).
The details are available here, and we wont try to repeat it all in this special Member Alert.
In broad terms, the arrangements are as follows:
- The Government has announced that it will introduce a Bill to repeal Part 3A of the EP&A Act. It is anticipated that the Bill will include a new regime for the assessment and determination of projects of genuine State significance. Residential, retail and commercial development are unlikley to be recognsied as “state significiant”.
- The changes to the SEPP today are of an interim nature, pending the introduction of the new legislation.
- The Major Development SEPP no longer includes a distinct category for residential, commercial and retail projects with a capital investment value greater than $100 million.
- The Major Development SEPP no longer includes a distinct category for coastal subdivision projects.
- All project applications and concept plan applications for residential, commercial or retail development or coastal subdivision development, for which Director Generals environmental assessment requirements (DGRs) have been issued on or before 8 April 2011 will (for now) remain as Part 3A applications, with the exception of those applications where DGRs were issued more than 2 years before 8 April 2011 and the proponent had not lodged an environmental assessment with the Department by 8 April 2011.
- The Department will continue to assess those applications remaining under Part 3A of the Act until the proposed Bill is passed by Parliament and takes effect (we think this will happen by July).
- All new development applications for residential, commercial and retail development with a capital investment value of more than $100 million will be assessed by local councils and determined by the relevant joint regional planning panel.
- On April 8, the NSW Government announced that it would not declare any new private sector residential, retail or commercial Part 3A applications. This has now been extended to all Part 3A applications (including, for example, industrial development). Where there is a need for a project to proceed urgently a mechanism is set up for the Director-General to certify that an applicant may proceed with the matter by applying to council under Part 4.
A particular concern arises for some projects that have been the subject of a concept plan approval, but not a project approval.
Part 3A declarations have also been revoked for projects where there is an approved concept plan, but the only Director-Generals requirements that have been issued (on or before 8 April 2011) were in respect of the concept plan application. That is, no requirements have been issued in relation to a project application.
According to the Planning Circular councils will be required to assess development applications for these proposals consistently with the approved concept plan, despite any:
- prohibition, and
- non-compliance with any development standard that would otherwise apply in any relevant environmental planning instrument.
However, the equivalent provision in the amended Major Development SEPP (clause 17(7)) does not match to the text of the Planning Circular.
In particular, the clause does not require a consent authority to approve a development application that is within the terms of a concept plan approval. It allows a council to give an approval, but does not oblige it.
This may not be a problem for those projects that the former Minister intended to be finalised under Part 4 when the concept plan was approved. For those projects, a provision in the Act (section 75(2)) requires any subsequent Part 4 decision to be generally consistent with the terms of approval of the concept plan. This limits the power of councils or panels to refuse development approval to a project that is covered by a concept plan.
However, if the former Minister intended, at the time the concept plan was approved, that the subsequent project approval be dealt with under Part 3A, then the above provision does not apply. And the new provision in the Major Development SEPP only requires that consent must not be granted unless the council or panel is satisfied that the development is generally consistent with the provisions of the [concept plan] approval. This may limit the discretion of a panel to re-shape a development by use of conditions, but it may not protect a project from outright refusal.
We have raised this anomaly with the Department of Planning and Infrastructure.