New state significant development regime

29 September 2011

The new state significant development regime will formally commence on 1 October 2011, as a result of a proclamation published by the NSW Government yesterday.

Also published yesterday were related amendments to the Environmental Planning and Assessment Regulation (here) as well as a new State Environmental Planning Policy (State and Regional Development) 2011 (here).

We understand that the Department of Planning and Infrastructure will shortly publish four planning circulars explaining the new the system on its website here.

As expected, most retail, commercial or residential development has not been declared state significant development. Other categories of state significant urban development (e.g. warehouse or distribution centres, manufacturing-related developments) have been more narrowly defined.

We wont attempt to explain the detail of the new system here – the Departments material will cover that adequately, were sure. However, a few matters are worth noting.

Transitional arrangements for joint regional planning panels

Development with a capital investment value between $10 million and $20 million will no longer routinely be under the authority of joint regional planning panels.

We previously expressed concerns about the absence of transitional arrangements in the exhibited draft material. Were pleased to say that the regulations now make it clear that joint regional planning panels remain the consent authority for a development application that has a value of more than $10 million to $20 million if the development application was made, but not determined by 1 October 2011.

Chairpersons of joint regional planning panels

Under previously announced changes, future appointees to the role of joint regional planning panel chair will normally need to be pre-approved by the Local Government and Shires Associations. The regulation changes published yesterday say that the Planning Minister will not need to seek their approval if he merely wants to re-appoint one of the existing chairpersons of a joint regional planning panel.

More clarity on transitional arrangements for Part 3A projects

The regulation amendments further clarify how projects who have received Part 3A concept plan approval, but not project approval, should be dealt with under Part 4 and how concept plans may be modified. They also contain new provisions regarding the lapsing of Part 3A approvals.

Ministerial call-in power

Given that residential, commercial and retail development has generally not been prescribed as a class of state significant development, the key mechanisms by which such projects may become state significant will be:

  • a state significant site declaration; or
  • individual ministerial call-in.

In relation to individual ministerial call-ins, the regulations foreshadow that the Minister will issue a document setting out general issues relating to State or regional planning significance. The Planning Assessment Commission will use this document when advising the Minister whether or not individual projects will be called in. We expect that this document will be published in the not too distant future.
New requirements for environmental impact statements

State significant development will now be dealt with under Part 4, but many provisions will be different from either the current Part 4 regime, or the one that existed for state significant development prior to Part 3As introduction in 2005.

In particular, any residential, commercial, retail or industrial development that is regarded as Part 3A will require an environmental impact statement (EIS), not a statement of environmental effects.

In order to make a development application, you will have to have the EIS already prepared. In order to prepare the EIS, you first need to apply to the Director-General for the issue of environmental assessment requirements. In theory, these will be issued within 28 days. There is a provision for the Director-General to exempt projects or classes of projects from this requirement, however, such an exemption cannot apply if, for example, there are Aboriginal heritage issues, or the development is on bush fire prone land.

In the absence of a general exemption from the Director-General, or overriding provisions in specific environmental assessment requirements, the requirements for an EIS are also more detailed than those for a statement of environmental effects. For example:

  • The EIS will need to analyse and explain the feasible alternatives to their development.
  • The EIS must provide reasons justifying the carrying out of the development in the manner proposed, having regard to biophysical, economic and social considerations, including the principles of ecologically sustainable development (the precautionary principle; inter-generational equity; conservation of biological diversity and ecological integrity, improved valuation, pricing and incentive mechanisms).
  • The author of the EIS will need to certify that they have supplied all available information that is relevant to the environmental assessment of the development.

Appeal rights

Part 4 development assessment scheme comes equipped with a wide range of appeal rights.  However, the proposed state significant development provisions for:

  • environmental assessment requirements; and
  • the determination of development application fees,

circumvent these safeguards.

Under the existing Part 4 regime, any decision that is made by a consent authority in connection with a development application is appealable on its merits to the Land and Environment Court. This includes decisions about the amount of development application fees and preliminary decisions as to the handling of development applications.

However, the Department has drafted the provisions relating to environmental assessment requirements and the determination of development application fees to avoid giving applicants the right of appeal on those matters.  While applicants arent entirely legally defenceless (for example, they can still launch legal proceedings to remedy a breach of the Act) the absence of a clear right of appeal on these matters is disappointing.  The absence of an appeal right generally impacts on the behaviour of public servants.  While there may be a notional 28 day for the issue of environmental assessment requirements, this may not be adhered to if there is no threat of an appeal if there is a breach.

However, there are appeal rights from a consent authoritys substantive decision or a deemed refusal. (The consent authority will normally be the Planning Assessment Commission or a departmental officer, as the Minister’s delegate.) There will be a 90 day deemed refusal period for state significant development. However, appeal rights will be lost, if the Minister requests the Planning Assessment Commission to undertake a public hearing. (The Department draws a distinction between a public hearing and a public meeting. It seems that the latter will be commonplace, and will not quash appeal rights, but the former is intended to be rarely invoked.)