Transitional arrangements pending the repeal of Part 3A of the Environmental Planning and Assessment [...]
May 2011
Government & Administrative Law
The NSW Government has announced that Part 3A of the Environmental Planning and Assessment Act 1979 (EP&A Act) will be repealed. Pending the repeal of Part 3A, transitional arrangements have been announced which cover projects which were lodged under Part 3A. These transitional arrangements are found in the State Environmental Planning Policy (Major Development) Amendment 2011 (Major Development SEPP), published on 13 May 2011. Important changes to be noted are:
Residential, commercial or retail projects and coastal subdivision development
Residential, commercial and retail projects with a capital investment value greater than $100 million, will no longer be identified as a class of development to which Part 3A applies. New development applications for residential, commercial or retail projects with a capital investment value greater than $100 million will be lodged with the relevant local council under Part 4 of the EP&A Act.
Similarly, Part 3A will also no longer apply to coastal subdivision projects. New development applications for coastal subdivision projects will be lodged with the relevant local council under Part 4 of the EP&A Act.
New applications will be assessed by local councils and determined by the Joint Regional Planning Panels (JRPPs).
Existing project applications
Project applications for residential, commercial or retail projects and coastal subdivision development for which Director General's environmental assessment requirements (DGRs) have been issued on or before 8 April 2011, will remain as Part 3A applications, unless the DGRs were issued more than 2 years before 8 April 2011 and the proponent had not lodged an environmental assessment by 8 April 2011.
The Minister will delegate his Part 3A determination role to the Planning Assessment Commission (PAC) for all significant applications made on behalf of private proponents. Less significant or non-controversial applications will be determined by senior officers of the Department under delegation.
Projects with an approval under Part 3A can continue to be modified under section 75W of the EP&A Act. Modifications will be determined by the PAC and the Department.
Projects awaiting declaration under Part 3A
All projects that were not declared as Part 3A projects by 8 April 2011 will not be declared as Part 3A projects. These projects will be assessed by local councils and determined by the JRPPs after a new development application has been lodged under Part 4 of the EP&A Act.
Revocation of some existing declarations
Declarations for projects for which DGRs were not issued on or before 8 April 2011 are revoked. Declarations for projects for which the only DGRs issued on or before 8 April 2011 were in respect of an approved concept plan are revoked. Projects where the DGRs were issued more than 2 years before 8 April 2011 and the proponent had not lodged an environmental assessment by 8 April 2011 are also revoked.
Where a project declaration has been revoked, the Department will advise each proponent and relevant local council of the revocation and refund any applicable fees. Proponents may lodge a new development application with the relevant local council under Part 4 of the EP&A Act which will be assessed by the council and determined by the JRPPs.
Validity of prior project approvals
The revocation of a declaration does not affect the validity of prior project approvals or concept plan approvals. Where a concept plan has been approved, these projects will require the lodgement of a development application under Part 4 of the EP&A Act with the relevant local council and will generally be determined by the JRPPs. The terms of a concept plan approval are required to be considered for any future development application.
Other classes of Part 3A development
No new applications for any of the development that remains identified as Part 3A in the Major Development SEPP will be accepted. Projects currently awaiting declaration will not be declared at this time. Applications for the assessment of these projects will be able to be lodged once the new legislation has commenced. However, provision is made in the Major Development SEPP for the urgent assessment and determination of development applications to which Part 3A still applies, by lodging a new development application with the relevant local council under Part 4 of the EP&A Act, in lieu of an application under Part 3A. Generally such applications will be determined by the relevant JRPP.
A new Bill
The Government has announced it will introduce a Bill to repeal Part 3A and it is anticipated that the Bill will include a new regime for the assessment and determination of projects of genuine State significance.
At Maddocks we have a great deal of experience in dealing with Part 3A applications and are well placed to assist you in managing the transitional, and assessment process.
For more information and advice on planning and environment law matters, please contact a member of our team.
Stan Kondilios | Partner
Direct 61 2 8223 4102
stan.kondilios@maddocks.com.au
Patrick Ibbotson | Partner
Direct 61 2 8223 4169
patrick.ibbotson@maddocks.com.au
Prue Burns | Partner
Direct 61 2 8223 4106