NSW Government releases new draft SEPP dealing with State Significant Development
The NSW Government has taken its next step towards replacing the controversial Part 3A major project approval process by the release last week of the draft State Environmental Planning Policy (State and Regional Development) 2011 (draft SEPP).
The release of the draft SEPP follows on the heels of the Environmental Planning & Assessment (Part 3A Repeal) Act 2011 (Repeal Act), introduced in June this year. The Repeal Act, which is expected to commence within the next two months, will:
- repeal Part 3A of the Environmental Planning & Assessment Act 1979
- establish an environmental assessment regime for two broad categories of development, namely, State significant development (SSD) and State significant infrastructure (SSI).
What the draft SEPP does is complete the process by identifying the specific types of development to be classified as SSD and SSI under the Environmental Planning & Assessment Act 1979 (EP&A Act
State significant development
The draft SEPP embraces a more narrow approach to what constitutes SSD and represents something of a departure from the more expansive class of development (including major private residential development projects) available under the soon to be repealed Part 3A assessment regime.
Many of the State significant categories of development remain the same, but with a greater "capital investment value" now required to be established before the development is considered State significant, some of which include:
- warehouse and distribution centres (over $50M)
- mining, petroleum (oil and gas) and extractive industries
- cultural, tourism and recreational facilities (over $10M, $30M or $100M depending on the type of development)
- hospitals and medical centres (over $30M)
- road rail and related transport facilities (over $30M).
Some of the more controversial types of development dealt with under Part 3A have been excluded from the new State significant regime, including:
- commercial, residential and retail development
- marina facilities
- residential subdivisions in coastal areas.
A further feature of the draft SEPP is the identification of specific sites which are to be treated as "State significant development sites", including the Sydney Opera House, Luna Park, Barangaroo, Sydney Olympic Park, the former Carlton United Breweries site at Broadway and the Rocks. Development carried out on these sites will be classified as SSD.
The Minister will be the consent authority for SSD, but will in many circumstances delegate this role to the Planning Assessment Commission or the Department of Planning & Infrastructure.
State significant infrastructure
SSI includes ports, wharfs and boating facilities (excluding marinas), rail infrastructure, water storage and water treatment facilities and pipelines.
SSI also includes projects to be carried out by "public authorities" (excluding local councils) which require an environmental impact statement to be prepared as part of that development.
The draft SEPP also identifies certain projects as being "critical SSI", including development associated with the Pacific Highway, the M5 West widening and various rail infrastructure projects, including the North West Rail Link and the CBD light rail extension (which will be assessed under Part 5.1 of the EP&A Act).
Approvals granted for critical SSI will not be open to challenge by a third party.
The terms of the draft SEPP represent a significant narrowing of the types of development classified as State significant. This, in turn, will result in a significantly greater number of larger and more complex projects being assessed at the local council level.
It is not clear at this stage whether the new framework for SSD and SSI, as detailed in the draft SEPP (and assuming the draft instrument is adopted without significant alteration), will ultimately survive the NSW Government’s agenda to repeal and re-write the EP&A Act. That process is not expected to be completed for at least a further 12 months.
The Department of Planning & Infrastructure has called for submissions on the draft SEPP to be received before 2 September 2011.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.