2011
2011
2011-08-26
act
government
publicspecial
act.reprint
partuncommenced
2011-06-16
2011-06-16
1
2011
none
act-2011-022
0332ad8f-0f4c-41d9-a58a-85f50f7c859e
cf5267f5-7fde-46ea-9c5b-d0d36a4c4db7
Note—
Amending Acts and amending provisions are subject
to automatic repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
An Act to amend the Environmental Planning and Assessment Act
1979 to repeal Part 3A of that Act and to make provision
consequent on that repeal.
1Name of
Act
This Act is the Environmental
Planning and Assessment Amendment (Part 3A Repeal) Act
2011.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
Schedule 1Amendment of Environmental Planning and Assessment Act 1979 No
203
1.1Repeal of Part
3A
Part 3A Major infrastructure
and other projects
Omit the Part.
1.2State significant
development
[1]Section 4
Definitions
Insert “State significant development
or” after “other than” and after “that is not”
in the definition of advertised development in section 4
(1).
[2]Section 4
(1)
Insert in alphabetical order:
State
significant development has the meaning given by Division
4.1 of Part 4.
[3]Section 29A Advertised
development
Insert “State significant development
or” after “other than” in section 29A
(1).
[4]Section 72K Joint exhibition
of instrument and advertising of application
Insert “State significant development
or” before “designated development” wherever occurring in
section 72K (3).
[5]Section 74C Preparation of
development control plans
Insert “State significant development
or” before “designated development” wherever occurring in
section 74C (1) (c).
[6]Part 4 Development
assessment
Omit the note to the Part.
[7]Section 76A Development that
needs consent
Insert at the end of the section:
Note—
Division 4.1 makes provision with respect to
State significant development.
[8]Section 77 Application of
Division
Insert as paragraph (a) of the note to the
section:
(a)
is or is not State significant development,
and
[9]Section 77A Designated
development
Insert at the end of the section:
(2)
Designated development does not include State
significant development despite any such declaration.
[10]Section 78A
Application
Insert “(other than an application in
respect of State significant development)” after “development
application” in section 78A (8).
[11]Section 78A
(8A)
Insert after section 78A (8):
(8A)
A development application for State significant
development is to be accompanied by an environmental impact statement prepared
by or on behalf of the applicant in the form prescribed by the
regulations.
[12]Section 79 Public
participation—designated development
Insert after section 79 (1):
Note—
Section 89F deals with public participation for
State significant development.
[13]Section 79A Public
participation—advertised development and other notifiable
development
Insert at the end of the section:
(3)
This section does not apply to State significant
development.
[14]Section 79B Consultation and
concurrence
Insert after section 79B (2):
(2A)State significant
development—exclusion
This section does not apply to State significant
development unless the requirement of an environmental planning instrument for
consultation or concurrence specifies that it applies to State significant
development.
[15]Section 79BA Consultation and
development consent—certain bush fire prone land
Insert after section 79BA (1A):
(1B)
This section does not apply to State significant
development.
[16]Section 80
Determination
Omit section 80 (6)–(8). Insert
instead:
(6)Restrictions on determination
of development applications involving PAC
If a consent authority (other than the Minister)
has received notice that the Minister has requested that a review (with or
without a public hearing) be conducted by the Planning Assessment Commission
in relation to all or any part of the development the subject of a development
application, the consent authority must not determine the development
application until:
(a)
the review has been conducted,
and
(b)
the consent authority has considered the findings
and recommendations of the Planning Assessment Commission and any comments
made by the Minister that accompanied those findings and recommendations when
they were forwarded to the consent authority.
(7)
If the Minister has requested that a review (with
or without a public hearing) be conducted by the Planning Assessment
Commission in relation to all or any part of the development the subject of a
development application for which the Minister is the consent authority, the
Minister must not determine the development application until:
(a)
the review has been conducted,
and
(b)
the Minister has considered the findings and
recommendations of the Planning Assessment
Commission.
[17]Section 81 Post-determination
notification
Insert at the end of the section:
(4)
For the purposes of this section, designated development includes
State significant development that would be designated development but for
section 77A (2), and accordingly a reference in this section to section 79 (5)
includes a reference to section 89F (3).
[18]Section 82 Circumstances in
which consent taken to have been refused
Insert at the end of the section:
(5)
This section does not apply in respect of a
development application if section 97 does not apply to the
application.
[19]Section 83 Date from which
consent operates
Omit “under section 80 (7) following the
holding of a review” in section 83 (1) (b) (i).
Insert instead “under section 80 (6) or (7)
following the holding of a review that includes a public
hearing”.
[20]Section 83
(4A)
Insert after section 83 (4):
(4A)
Subsections (2) and (3) do not apply to State
significant development. If development consent for any such development is
refused by the Court on an appeal, any development consent that was granted
ceases to have effect on the determination of the
appeal.
[21]Part 4, Division
4.1
Insert after Division 4 of Part 4:
Division 4.1State significant
development
89CDevelopment that is State
significant development
(1)
For the purposes of this Act, State
significant development is development that is declared
under this section to be State significant development.
(2)
A State environmental planning policy may declare
any development, or any class or description of development, to be State
significant development.
(3)
The Minister may, by order published in the
Gazette, declare specified development on specified land that is not declared
under subsection (2) to be State significant development, but only if the
Minister has obtained and made publicly available advice from the Planning
Assessment Commission about the State or regional planning significance of the
development.
(4)
A State environmental planning policy that
declares State significant development may extend the provisions of the policy
relating to that development to State significant development declared under
subsection (3).
Note—
See section 115U (6) and (7) in relation to
development that is, but for those provisions, both State significant
development and State significant infrastructure.
89DMinister consent authority for
State significant development
(1)
The Minister is the consent authority for State
significant development.
Note—
Section 23 enables the Minister to delegate the
consent authority function to the Planning Assessment Commission, the
Director-General or to any other public authority.
(2)
If a staged development application is made under
Division 2A in respect of State significant development:
(a)
the Minister may determine that a subsequent
stage of the development is to be determined by the relevant council,
and
(b)
that stage of the development ceases to be State
significant development and that council becomes the consent authority for
that stage of the development instead of the
Minister.
89EConsent for State significant
development
(1)
The Minister is to determine a development
application in respect of State significant development by:
(a)
granting consent to the application with such
modifications of the proposed development or on such conditions as the
Minister may determine, or
(b)
refusing consent to the
application.
(2)
Development consent may not be granted if the
development is wholly prohibited by an environmental planning
instrument.
(3)
Development consent may be granted despite the
development being partly prohibited by an environmental planning
instrument.
(4)
If part of a single proposed development that is
State significant development requires development consent to be carried out
and the other part may be carried out without development consent:
(a)
Part 5 does not apply to that other part of the
proposed development, and
(b)
that other part of the proposed development is
taken to be development that may not be carried out except with development
consent.
(5)
A development application in respect of State
significant development that is wholly or partly prohibited may be considered
in accordance with Division 4B of Part 3 in conjunction with a proposed
environmental planning instrument to permit the carrying out of the
development. The Director-General may (despite anything to the contrary in
section 54) undertake the functions of the relevant planning authority under
Part 3 for a proposed instrument if it is initiated for the purpose of
permitting the carrying out of the development (whether or not it contains
other provisions).
(6)
If the determination under section 56 (Gateway
determination) for a planning proposal declares that the proposed instrument
is principally concerned with permitting the carrying out of State significant
development that would otherwise be wholly prohibited:
(a)
the proposed instrument may be made only by the
Planning Assessment Commission under a delegation from the Minister,
and
(b)
the development application for the carrying out
of that development may be determined only by the Planning Assessment
Commission under a delegation from the Minister.
89FPublic
participation
(1)
As soon as practicable after a development
application is made for consent to carry out State significant development,
the Director-General must:
(a)
place the application and any accompanying
information on public exhibition for a period (of not less than 30 days)
prescribed by the regulations (the submission period) commencing on the
day after which notice of the application is first published as referred to in
paragraph (b), and
(b)
cause notice of the application to be given and
published in accordance with the regulations.
(2)
During the submission period, any person may
inspect the development application and any accompanying information and make
extracts from or copies of them.
(3)
During the submission period, any person may make
written submissions to the Minister with respect to the development
application. A submission by way of objection must set out the grounds of the
objection.
(4)
If:
(a)
a development application for State significant
development is amended, or substituted, or withdrawn and later replaced before
it has been determined by the Minister, and
(b)
the Director-General has complied with subsection
(1) in relation to the original application,
compliance with subsection (1) in relation to the
amended, substituted or later application is not required, unless the
Director-General determines that the amended, substituted or later application
substantially differs from the original application and the environmental
impact of the development concerned has not been reduced by the changes
proposed in the amended, substituted or later
application.
89GRegulations—State
significant development
In addition to any other matters for or with
respect to which regulations may be made under this Part, the regulations may
make provision for or with respect to the procedures and other matters
concerning State significant development, including the following:
(a)
the environmental impact statements to accompany
development applications in respect of State significant
development,
(b)
the requirements for the preparation of those
environmental impact statements, including consultation requirements with
respect to government agencies and other affected persons,
(c)
the making of orders under section 89C (3)
declaring specified development to be State significant
development,
(d)
the making of information publicly available
relating to development applications in respect of State significant
development and the determination of those applications,
(e)
requiring applicants to provide responses to
submissions made on development applications in respect of State significant
development.
89HEvaluation of development
application (s 79C)
Section 79C applies, subject to this Division, to
the determination of the development application.
Note—
Section 80 (7) provides that if a review is to be
conducted by the Planning Assessment Commission into proposed State
significant development the Minister is not to determine the development
application until after the review has been conducted and consideration given
to the findings and recommendations of the Commission.
89IBiobanking—special
provisions
(1)
The Minister may grant consent to State
significant development subject to a condition that requires the applicant to
acquire and retire (in accordance with Part 7A of the Threatened Species Conservation Act
1995) biodiversity credits of a number and class (if any)
specified by the Minister in the consent. This subsection applies whether or
not a biobanking statement under Part 7A of that Act was obtained in respect
of the development.
(2)
The Minister may approve an arrangement under
which:
(a)
the retirement of some or all of the biodiversity
credits is deferred pending the completion of any rehabilitation or
restoration action proposed to be taken on the site of the State significant
development, after the development has been substantially completed, that will
restore or improve the biodiversity values affected by the development,
and
(b)
the biodiversity credits the retirement of which
is deferred pending the completion of those actions are required to be
transferred to the Minister administering the Threatened
Species Conservation Act 1995.
(3)
Division 7 of Part 7A of the Threatened Species Conservation Act
1995 applies in respect of any such arrangement as if it
were a deferred retirement arrangement approved under that
Division.
(4)
If a biobanking statement was obtained in respect
of State significant development, the Minister may grant consent to the
development subject to a condition that requires the applicant to comply with
any conditions of the biobanking statement.
Note—
The conditions of a biobanking statement may
require the applicant to retire biodiversity credits in respect of the
development in order to ensure that it maintains or improves biodiversity
values, or to carry out other onsite measures to minimise any negative impact
of the development on biodiversity values.
(5)
A person cannot appeal to the Court in respect of
a condition imposed by the Minister under subsection
(4).
89JApprovals etc legislation that
does not apply
(1)
The following authorisations are not required for
State significant development that is authorised by a development consent
granted after the commencement of this Division (and accordingly the
provisions of any Act that prohibit an activity without such an authority do
not apply):
(a)
the concurrence under Part 3 of the Coastal Protection Act 1979 of the
Minister administering that Part of that Act,
(b)
a permit under section 201, 205 or 219 of the
Fisheries Management Act
1994,
(c)
an approval under Part 4, or an excavation permit
under section 139, of the Heritage Act
1977,
(d)
an Aboriginal heritage impact permit under
section 90 of the National Parks and Wildlife Act
1974,
(e)
an authorisation referred to in section 12 of the
Native Vegetation Act 2003 (or under any
Act repealed by that Act) to clear native vegetation or State protected
land,
(f)
a bush fire safety authority under section 100B
of the Rural Fires Act
1997,
(g)
a water use approval under section 89, a water
management work approval under section 90 or an activity approval (other than
an aquifer interference approval) under section 91 of the Water
Management Act 2000.
(2)
Division 8 of Part 6 of the Heritage Act 1977 does not apply to
prevent or interfere with the carrying out of State significant development
that is authorised by a development consent granted after the commencement of
this Division.
(3)
A reference in this section to State significant
development that is authorised by a development consent granted after the
commencement of this Division includes a reference to any investigative or
other activities that are required to be carried out for the purpose of
complying with any environmental assessment requirements under this Part in
connection with a development application for any such
development.
89KApprovals etc legislation that
must be applied consistently
(1)
An authorisation of the following kind cannot be
refused if it is necessary for carrying out State significant development that
is authorised by a development consent under this Division and is to be
substantially consistent with the consent:
(a)
an aquaculture permit under section 144 of the
Fisheries Management Act
1994,
(b)
an approval under section 15 of the Mine Subsidence Compensation Act
1961,
(c)
a mining lease under the Mining
Act 1992,
(d)
a production lease under the Petroleum (Onshore) Act
1991,
(e)
an environment protection licence under Chapter 3
of the Protection of the Environment
Operations Act 1997 (for any of the purposes referred to
in section 43 of that Act),
(f)
a consent under section 138 of the Roads Act 1993,
(g)
a licence under the Pipelines Act
1967.
(2)
This section does not apply to or in respect
of:
(a)
an application for the renewal of an
authorisation or a renewed authorisation, or
(b)
an application for a further authorisation or a
further authorisation following the expiry or lapsing of an authorisation,
or
(c)
in the case of an environment protection licence
under Chapter 3 of the Protection of the Environment
Operations Act 1997—any period after the first
review of the licence under section 78 of that Act.
(3)
A reference in this section to an authorisation
or development consent includes a reference to any conditions of the
authorisation or consent.
(4)
This section applies to a person, court or
tribunal that deals with an objection, appeal or review conferred on a person
in relation to an authorisation in the same way as it applies to the person
giving the authorisation.
89LThis Division
prevails
The provisions of this Division, the regulations
under this Division and any other provisions of or made under this Act with
respect to State significant development prevail to the extent of any
inconsistency with any other provisions of or made under this Act relating to
development to which this Part applies.
[22]Section 91 What is
“integrated development”?
Insert “State significant development
or” after “Integrated development is development (not being”
in section 91 (1).
[23]Section 94D Section 94 or 94A
conditions imposed by Minister or Director-General in growth centres, council
areas etc
Omit “the Minister is the consent authority
pursuant to section 88A” from section 94D (4).
Insert instead “the Minister is the consent
authority because it is State significant
development”.
[24]Section 96 Modification of
consents—generally
Insert at the end of section 96 (5):
This subsection does not apply to State
significant development.
[25]Section 97 Appeal by
applicant—development applications
Insert at the end of the section:
(7)
This section does not apply to a development
application for designated development determined by the consent authority
after a public hearing held by the Planning Assessment Commission, or to the
determination of the application.
[26]Section 98 Appeal by an
objector
Insert at the end of the section:
(4)
This section extends to a development application
for State significant development that would be designated development but for
section 77A (2), and to the determination of the
application.
(5)
This section does not apply to a development
application determined by the consent authority after a public hearing held by
the Planning Assessment Commission, or to the determination of the
application.
[27]Section 102 Non-compliance
with certain provisions regarding State significant
development
Insert “State significant development
or” before “designated development” wherever occurring in
section 102 (2).
[28]Section
109CA
Insert after section 109C:
109CAMinister not eligible as
certifying authority
The Minister is not eligible to issue a
certificate under this Part in respect of any development for which the
Minister has granted development consent (or any project for which the
Minister has granted approval) unless the Minister is the only person
authorised to issue the certificate.
[29]Section 109K Appeals against
failure or refusal to issue Part 4A certificates
Insert “State significant development
or” before “designated development” wherever occurring in
section 109K (3).
1.3State significant
infrastructure
[1]Section 4
(1)
Insert in alphabetical order:
State
significant infrastructure has the meaning given by Part
5.1.
[2]Section 23
Delegation
Insert after section 23 (8) (a1):
(a2)
the functions of the Minister under Part 5.1 of
determining an application for approval to carry out critical State
significant infrastructure, or
[3]Part 5.1
Insert after Part 5:
Part 5.1State significant
infrastructure
Division 1Preliminary
115TDefinitions
In this Part:
approved
State significant infrastructure means infrastructure to the
extent that it is approved by the Minister under this Part (but does not
include any stage of the infrastructure that has not yet been authorised to be
carried out by an approval under a staged infrastructure
application).
critical
State significant infrastructure means State significant
infrastructure that is critical State significant infrastructure, as referred
to in section 115V.
development includes an activity
within the meaning of Part 5.
infrastructure means development for
the purposes of infrastructure, including (without limitation) development for
the purposes of railways, roads, electricity transmission or distribution
networks, pipelines, ports, wharf or boating facilities, telecommunications,
sewerage systems, stormwater management systems, water supply systems,
waterway or foreshore management activities, flood mitigation works, public
parks or reserves management, soil conservation works or other purposes
prescribed by the regulations.
proponent of infrastructure means
the person proposing to carry out development comprising all or any part of
the infrastructure, and includes any person certified by the Director-General
to be the proponent.
State
significant infrastructure—see section
115U.
115UDevelopment that is State
significant infrastructure
(1)
For the purposes of this Act, State
significant infrastructure is development that is declared
under this section to be State significant
infrastructure.
(2)
A State environmental planning policy may declare
any development, or any class or description of development, to be State
significant infrastructure.
(3)
Development that may be so declared to be State
significant infrastructure is development of the following kind that a State
environmental planning policy permits to be carried out without development
consent under Part 4:
(a)
infrastructure,
(b)
other development that (but for this Part and
within the meaning of Part 5) would be an activity for which the proponent is
also the determining authority and would, in the opinion of the proponent,
require an environmental impact statement to be obtained under Part
5.
Paragraph (b) does not apply where the proponent
is a council or county council.
(4)
Specified development on specified land is State
significant infrastructure despite anything to the contrary in this section if
it is specifically declared to be State significant infrastructure. Any such
declaration may be made by a State environmental planning policy or by an
order of the Minister (published on the NSW legislation website) that amends a
State environmental planning policy for that purpose.
(5)
The Planning Assessment Commission or
Infrastructure NSW may recommend to the Minister that a declaration be made
under subsection (4) in respect of particular
development.
(6)
If, but for this subsection, development is both
State significant infrastructure because of a declaration under subsection (2)
and State significant development, it is not State significant infrastructure
despite any such declaration.
(7)
If, but for this subsection, development is both
State significant infrastructure because of a declaration under subsection (4)
and State significant development, it is not State significant development
despite any declaration under Division 4.1 of Part 4.
115VCritical State significant
infrastructure
Any State significant infrastructure may also be
declared to be critical State significant infrastructure if it is of a
category that, in the opinion of the Minister, is essential for the State for
economic, environmental or social reasons. Any such declaration may be made by
the instrument that declared the development to be State significant
infrastructure or by a subsequent such instrument.
Note—
In the case of critical State significant
infrastructure, this Part contains the following additional provisions:
(a)
section 115ZF (4),
(b)
section 115ZG (3),
(c)
section 115ZK.
Section 23 (8) also prevents the Minister
delegating his or her function under this Part of determining an application
for approval to carry out critical State significant
infrastructure.
Division 2Environmental assessment and
approval of infrastructure
115WMinister’s approval
required for State significant infrastructure
(1)
A person is not to carry out development that is
State significant infrastructure unless the Minister has approved of the
carrying out of the State significant infrastructure under this
Part.
(2)
The person is to comply with any conditions to
which such an approval is subject.
115XApplication for approval of
State significant infrastructure
(1)
The proponent may apply for the approval of the
Minister under this Part to carry out State significant
infrastructure.
(2)
The application is to:
(a)
describe the infrastructure,
and
(b)
contain any other matter required by the
Director-General.
(3)
The application is to be lodged with the
Director-General.
115YEnvironmental assessment
requirements for approval
(1)
When an application is made for the
Minister’s approval for State significant infrastructure, the
Director-General is to prepare environmental assessment requirements in
respect of the infrastructure.
(2)
For the purposes of the environmental assessment,
the environmental assessment requirements must require an environmental impact
statement to be prepared by or on behalf of the proponent in the form approved
by the Director-General.
(3)
In preparing the environmental assessment
requirements, the Director-General is to consult relevant public authorities
and have regard to the need for the requirements to assess any key issues
raised by those public authorities.
(4)
The Director-General is to notify the proponent
of the environmental assessment requirements. The Director-General may modify
those requirements by further notice to the proponent.
115ZEnvironmental assessment and
public consultation
(1)
The proponent is to submit to the
Director-General the environmental impact statement required under this
Division for approval to carry out the State significant
infrastructure.
(2)
The Director-General may require the proponent to
submit a revised environmental impact statement to address the matters
notified to the proponent.
(3)
The Director-General must make the environmental
impact statement publicly available for at least the minimum exhibition period
prescribed by the regulations. The minimum exhibition period prescribed by the
regulations must not be less than 30 days.
(4)
During that period, any person (including a
public authority) may make a written submission to the Director-General
concerning the matter.
(5)
The Director-General is to provide copies of
submissions received by the Director-General or a report of the issues raised
in those submissions to:
(a)
the proponent, and
(b)
if the State significant infrastructure will
require an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act
1997—the Department responsible to the Minister for
the Environment, and
(c)
any other public authority the Director-General
considers appropriate.
(6)
The Director-General may require the proponent to
submit to the Director-General:
(a)
a response to the issues raised in those
submissions, and
(b)
a preferred infrastructure report that outlines
any proposed changes to the State significant infrastructure to minimise its
environmental impact or to deal with any other issue raised during the
assessment of the application concerned.
(7)
If the Director-General considers that
significant changes are proposed to the nature of the State significant
infrastructure, the Director-General may make the preferred infrastructure
report available to the public.
115ZADirector-General’s
environmental assessment report
(1)
The Director-General is to give a report on the
State significant infrastructure to the Minister for the purposes of the
Minister’s consideration of the application for approval to carry out
the infrastructure.
(2)
The Director-General’s report is to
include:
(a)
a copy of the proponent’s environmental
impact statement and any preferred infrastructure report,
and
(b)
any advice provided by public authorities on the
State significant infrastructure, and
(c)
a copy of any report or advice of the Planning
Assessment Commission in respect of the State significant infrastructure,
and
(d)
any environmental assessment undertaken by the
Director-General or other matter the Director-General considers
appropriate.
115ZBGiving of approval by Minister
to carry out project
(1)
If:
(a)
the proponent makes an application for the
approval of the Minister under this Part to carry out State significant
infrastructure, and
(b)
the Director-General has given his or her report
on the State significant infrastructure to the
Minister,
the Minister may approve or disapprove of the carrying
out of the State significant infrastructure.
(2)
The Minister, when deciding whether or not to
approve the carrying out of State significant infrastructure, is to
consider:
(a)
the Director-General’s report on the
infrastructure and the reports, advice and recommendations contained in the
report, and
(b)
any advice provided by the Minister having
portfolio responsibility for the proponent, and
(c)
any findings or recommendations of the Planning
Assessment Commission following a review in respect of the State significant
infrastructure.
(3)
State significant infrastructure may be approved
under this Part with such modifications of the infrastructure or on such
conditions as the Minister may determine.
115ZCBiobanking—special
provisions
(1)
The Minister may approve State significant
infrastructure subject to a condition that requires the proponent to acquire
and retire (in accordance with Part 7A of the Threatened
Species Conservation Act 1995) biodiversity credits of a
number and class (if any) specified by the Minister in the approval. This
subsection applies whether or not a biobanking statement under Part 7A of that
Act was obtained in respect of the infrastructure.
(2)
The Minister may approve an arrangement under
which:
(a)
the retirement of some or all of the biodiversity
credits is deferred pending the completion of any rehabilitation or
restoration action proposed to be taken on the site of the State significant
infrastructure, after the infrastructure has been substantially completed,
that will restore or improve the biodiversity values affected by the
infrastructure, and
(b)
the biodiversity credits the retirement of which
is deferred pending the completion of those actions are required to be
transferred to the Minister administering the Threatened
Species Conservation Act 1995.
(3)
Division 7 of Part 7A of the Threatened Species Conservation Act
1995 applies in respect of any such arrangement as if it
were a deferred retirement arrangement approved under that
Division.
(4)
If a biobanking statement was obtained in respect
of State significant infrastructure, the Minister may approve the
infrastructure subject to a condition that requires the proponent to comply
with any conditions of the biobanking statement.
Note—
The conditions of a biobanking statement may
require the proponent to retire biodiversity credits in respect of the
infrastructure in order to ensure that it maintains or improves biodiversity
values, or to carry out other onsite measures to minimise any negative impact
of the infrastructure on biodiversity values.
(5)
A person cannot appeal to the Court in respect of
a condition imposed by the Minister under subsection
(4).
Division 3Staged infrastructure
applications
115ZDStaged infrastructure
applications
(1)
For the purposes of this Part, a staged
infrastructure application is an application for approval of
State significant infrastructure under this Part that sets out concept
proposals for the proposed infrastructure, and for which detailed proposals
for separate parts of the infrastructure are to be the subject of subsequent
applications for approval. The application may set out detailed proposals for
the first stage.
(2)
If approval is granted under this Part on the
determination of a staged infrastructure application, the approval does not
authorise the carrying out of any part of the State significant infrastructure
unless:
(a)
approval is subsequently granted to carry out
that part of the infrastructure following a further application for approval
in respect of that part of the infrastructure, or
(b)
the staged infrastructure application also
provided the requisite details of that part of the infrastructure and approval
is granted for that first stage without the need for further
approval.
(3)
The terms of an approval granted on the
determination of a staged infrastructure application are to reflect the
operation of subsection (2).
115ZEStatus of staged
infrastructure applications and approvals
(1)
The provisions of or made under this or any other
Act relating to applications for approval and approvals under this Part apply,
except as otherwise provided by or under this or any other Act, to a staged
infrastructure application and an approval granted on the determination of any
such application.
(2)
An approval granted on the determination of a
staged infrastructure application for infrastructure does not have any effect
to the extent that it is inconsistent with the determination of any further
application for approval in respect of that
infrastructure.
Division 4Application of other
provisions of this and other Acts
115ZFApplication of other
provisions of Act
(1)
Part 4 and Part 5 do not, except as provided by
this Part, apply to or in respect of State significant infrastructure
(including the declaration of the infrastructure as State significant
infrastructure and any approval or other requirement under this Part for the
infrastructure).
(2)
Part 3 and environmental planning instruments do
not apply to or in respect of State significant infrastructure, except
that:
(a)
they apply to the declaration of infrastructure
as State significant infrastructure or as critical State significant
infrastructure (and to the declaration of development that does not require
consent), and
(b)
they apply in so far as they relate to section
28, and for that purpose a reference in that section to enabling development
to be carried out in accordance with an environmental planning instrument or
in accordance with a consent granted under this Act is to be construed as a
reference to enabling State significant infrastructure to be carried out in
accordance with an approval granted under this
Part.
(3)
Divisions 6 and 6A of Part 4 apply to State
significant infrastructure that is not carried out by or on behalf of a public
authority (and to the giving of approval for the carrying out of any such
infrastructure under this Part) in the same way as they apply to development
and the granting of consent to the carrying out of development under Part 4,
subject to any necessary modifications and any modifications prescribed by the
regulations.
(4)
Division 2A of Part 6 does not apply to critical
State significant infrastructure.
(5)
The regulations may make provision for or with
respect to the application to State significant infrastructure of the
provisions (with or without modification) of section 81A, section 109M or any
other provision of this Act relating to the issue of subdivision
certificates.
(6)
Section 109R applies to approved State
significant infrastructure.
115ZGApprovals etc legislation that
does not apply
(1)
The following authorisations are not required for
approved State significant infrastructure (and accordingly the provisions of
any Act that prohibit an activity without such an authority do not
apply):
(a)
the concurrence under Part 3 of the Coastal Protection Act 1979 of the
Minister administering that Part of that Act,
(b)
a permit under section 201, 205 or 219 of the
Fisheries Management Act
1994,
(c)
an approval under Part 4, or an excavation permit
under section 139, of the Heritage Act
1977,
(d)
an Aboriginal heritage impact permit under
section 90 of the National Parks and Wildlife Act
1974,
(e)
an authorisation referred to in section 12 of the
Native Vegetation Act 2003 (or under any
Act repealed by that Act) to clear native vegetation or State protected
land,
(f)
a bush fire safety authority under section 100B
of the Rural Fires Act
1997,
(g)
a water use approval under section 89, a water
management work approval under section 90 or an activity approval (other than
an aquifer interference approval) under section 91 of the Water
Management Act 2000.
(2)
Division 8 of Part 6 of the Heritage Act 1977 does not apply to
prevent or interfere with the carrying out of approved State significant
infrastructure.
(3)
The following directions, orders or notices
cannot be made or given so as to prevent or interfere with the carrying out of
approved critical State significant infrastructure:
(a)
an interim protection order (within the meaning
of the National Parks and Wildlife Act
1974 or the Threatened
Species Conservation Act 1995),
(b)
an order under Division 1 (Stop work orders) of
Part 6A of the National Parks and Wildlife Act
1974, Division 1 (Stop work orders) of Part 7 of the
Threatened Species Conservation Act
1995 or Division 7 (Stop work orders) of Part 7A of the
Fisheries Management Act
1994,
(c)
a remediation direction under Division 3
(Remediation directions) of Part 6A of the National Parks
and Wildlife Act 1974,
(d)
an environment protection notice under Chapter 4
of the Protection of the Environment
Operations Act 1997,
(e)
an order under section 124 of the Local Government Act
1993.
(4)
A reference in this section to approved State
significant infrastructure includes a reference to any investigative or other
activities that are required to be carried out for the purpose of complying
with any environmental assessment requirements under this Part in connection
with an application for approval to carry out the State significant
infrastructure.
115ZHApprovals etc legislation that
must be applied consistently
(1)
An authorisation of the following kind cannot be
refused if it is necessary for carrying out approved State significant
infrastructure and is to be substantially consistent with the approval under
this Part:
(a)
an aquaculture permit under section 144 of the
Fisheries Management Act
1994,
(b)
an approval under section 15 of the Mine Subsidence Compensation Act
1961,
(c)
a mining lease under the Mining
Act 1992,
(d)
a production lease under the Petroleum (Onshore) Act
1991,
(e)
an environment protection licence under Chapter 3
of the Protection of the Environment
Operations Act 1997 (for any of the purposes referred to
in section 43 of that Act),
(f)
a consent under section 138 of the Roads Act 1993,
(g)
a licence under the Pipelines Act
1967.
(2)
This section does not apply to or in respect
of:
(a)
an application for the renewal of an
authorisation or a renewed authorisation, or
(b)
an application for a further authorisation or a
further authorisation following the expiry or lapsing of an authorisation,
or
(c)
in the case of an environment protection licence
under Chapter 3 of the Protection of the Environment
Operations Act 1997—any period after the first
review of the licence under section 78 of that Act.
(3)
A reference in this section to an authorisation
or approval includes a reference to any conditions of the authorisation or
approval.
(4)
This section applies to a person, court or
tribunal that deals with an objection, appeal or review conferred on a person
in relation to an authorisation in the same way as it applies to the person
giving the authorisation.
Division 5Miscellaneous
115ZIModification of
Minister’s approval
(1)
In this section:
Minister’s approval means an
approval to carry out State significant infrastructure under this
Part.
modification of an approval means
changing the terms of the approval, including revoking or varying a condition
of the approval or imposing an additional condition on the
approval.
(2)
The proponent may request the Minister to modify
the Minister’s approval for State significant infrastructure. The
Minister’s approval for a modification is not required if the
infrastructure as modified will be consistent with the existing approval under
this Part.
(3)
The request for the Minister’s approval is
to be lodged with the Director-General. The Director-General may notify the
proponent of environmental assessment requirements with respect to the
proposed modification that the proponent must comply with before the matter
will be considered by the Minister.
(4)
The Minister may modify the approval (with or
without conditions) or disapprove of the modification.
115ZJValidity of action under this
Part
(1)
The validity of an approval or other decision
under this Part cannot be questioned in any legal proceedings in which the
decision may be challenged except those commenced in the Court within 3 months
after public notice of the decision was given.
(2)
The only requirement of this Part that is
mandatory in connection with the validity of an approval of State significant
infrastructure is a requirement that an environmental impact statement with
respect to the infrastructure is made publicly available under this
Part.
(3)
Any infrastructure that has been approved (or
purports to be approved) by the Minister under this Part is taken to be State
significant infrastructure to which this Part applies, and to have been such
infrastructure for the purposes of any application or other matter under this
Part in relation to the infrastructure.
115ZKThird-party appeals and
judicial review—critical State significant
infrastructure
(1)
In this section:
breach has the meaning given by
Division 3 of Part 6.
the
judicial review jurisdiction of the Court means the
jurisdiction conferred on the Court under section 20 (2) of the Land and Environment Court Act
1979.
the
third-party appeal provisions means Division 3 of Part 6 of
this Act and sections 252 and 253 of the Protection of the
Environment Operations Act 1997.
(2)
The third-party appeal provisions do not apply in
relation to the following (except in relation to an application to the Court
made or approved by the Minister):
(a)
a breach of this Act arising under this Part in
respect of critical State significant infrastructure, including the
declaration of the development as State significant infrastructure (and as
critical State significant infrastructure) and any approval or other
requirement under this Part for the infrastructure,
(b)
a breach of any conditions of an approval under
this Part for critical State significant infrastructure,
(c)
a breach of this or any other Act arising in
respect of the giving of an authorisation of a kind referred to in section
115ZH (1) for critical State significant infrastructure (or in respect of the
conditions of such an authorisation).
(3)
The conditions of approval under this Part for
critical State significant infrastructure are conditions that may only be
enforced by or with the approval of the Minister (whether under the
third-party appeal provisions, the judicial review jurisdiction of the Court
or in any other proceedings).
(4)
The third-party appeal provisions and the
judicial review jurisdiction of the Court are subject to the provisions of
section 115ZJ.
115ZLMiscellaneous provisions
relating to approvals under this Part
(1)
The following documents under this Part in
relation to State significant infrastructure are to be made publicly available
by the Director-General in accordance with the regulations:
(a)
applications to carry out State significant
infrastructure,
(b)
environmental assessment requirements for State
significant infrastructure,
(c)
environmental impact statements placed on public
exhibition and responses provided to the Director-General by the proponent
after the end of the public exhibition period,
(d)
environmental assessment reports of the
Director-General to the Minister,
(e)
any advice, recommendations or reports received
from the Planning Assessment Commission,
(f)
approvals to carry out State significant
infrastructure given by the Minister,
(g)
requests for modifications of approvals given by
the Minister and any modifications made by the Minister,
(h)
any reasons given to the proponent by the
Minister as referred to in subsection (2),
(i)
any other matter prescribed by the
regulations.
(2)
The Minister is to give reasons to the proponent
for a decision:
(a)
not to approve State significant infrastructure
under this Part, or
(b)
to modify the State significant infrastructure
for which the proponent has sought approval under this
Part.
(3)
An approval under this Part may be subject to a
condition that it lapses on a specified date unless specified action with
respect to the approval has been taken (such as the commencement of work on
the infrastructure). Any such condition may be modified to extend the lapsing
period.
(4)
An approval under this Part may be surrendered,
subject to and in accordance with the regulations, by any person entitled to
act on the approval.
(5)
A condition of the approval of State significant
infrastructure under this Part may require any one or more of the
following:
(a)
the surrender under this section of any other
approval under this Part (or under Part 3A) relating to the infrastructure or
the land concerned,
(b)
the surrender under section 104A of any
development consent relating to the infrastructure or the land
concerned,
(c)
the surrender, subject to and in accordance with
the regulations, of a right conferred by Division 10 of Part 4 relating to the
infrastructure or the land concerned.
115ZMRegulations for purposes of
Part
The regulations may make provision for or with
respect to the approval of State significant infrastructure under this Part
and to approved State significant infrastructure, including:
(a)
the requirements and procedures for making
applications for approvals under this Part, and
(b)
requiring owners of land on which State
significant infrastructure is proposed to be carried out to consent to
applications for approvals under this Part, and
(c)
the amendment of applications for approvals under
this Part, and
(d)
the preparation, notification and modification of
requirements for environmental assessment of State significant infrastructure,
and
(e)
the requirements for environmental impact
statements under this Part, and
(f)
the fees for applications and the exercise of
functions under this Part, and
(g)
requiring the New South Wales Aboriginal Land
Council to consent to applications for approvals under this Part on land owned
by Local Aboriginal Land Councils, if the consent of the Local Aboriginal Land
Council concerned is required as owner of the land, and
(h)
providing for public exhibition, notification and
public registers of applications for approvals under this Part (or for the
modification of approvals) and of the determination of those applications,
and
(i)
the effect of the revocation of the declaration
of development as State significant infrastructure.
1.4Planning Assessment
Commission
[1]Section 23D Functions of
Commission
Omit section 23D (1) (a). Insert instead:
(a)
any function delegated to the Commission under
this Act,
[2]Section 23D (1)
(b)
Insert “or the Director-General”
after “Minister” wherever occurring.
[3]Section 23D (1)
(b)
Omit section 23D (1) (b) (ii)–(iv). Insert
instead:
(ii)
to review any (or any aspect or part of any)
development, activity, infrastructure or project to which this Act applies,
and
(iii)
to hold a public hearing into any matter the
subject of any such advice or review, and
[4]Section 23E Reviews by, and
procedures of, Commission
Omit section 23E (b).
[5]Schedule 3 Planning Assessment
Commission
Omit the definition of member from clause 1. Insert
instead:
member means the chairperson or
other member of the Commission.
[6]Schedule 3, clause 2
(1)
Omit the subclause. Insert instead:
(1)
The Commission is to consist of not less than 4
and not more than 9 members appointed by the Minister.
[7]Schedule 3, clause 5
(3)
Insert “, but may not hold office as a
member for more than 6 years in total”. after “eligible to be
re-appointed”.
[8]Schedule 3, clause
6
Omit the clause. Insert instead:
6Members may be full-time or
part-time
The Minister may appoint a member on either a
full-time or part-time basis. The Minister may change the basis of the
appointment during the member’s term of office.
[9]Schedule 3, clause
7
Omit the clause. Insert instead:
7Remuneration
(1)
A full-time member is entitled to be paid:
(a)
remuneration in accordance with the Statutory and Other Offices Remuneration Act
1975, and
(b)
such travelling and subsistence allowances as the
Minister may from time to time determine in respect of the
member.
(2)
A part-time member is entitled to be paid such
remuneration (including travelling and subsistence allowances) as the Minister
may from time to time determine in respect of the
member.
1.5Joint Regional Planning
Panels
[1]Section 23G Joint regional
planning panels
Insert after section 23G (2):
(2A)
An environmental planning instrument may only
confer a council’s functions as consent authority on a regional panel if
the development is of a class or description set out in Schedule 4A. The
functions of a consent authority may only be conferred on a regional panel in
accordance with subsection (2) (a) and this subsection.
(2B)
Any environmental planning instrument that is in
force on the commencement of subsection (2A) ceases to have effect to the
extent that it is inconsistent with that subsection.
[2]Section 23G
(4A)
Insert after section 23G (4):
(4A)
Legal proceedings by or against a regional panel
are to be taken in the name of the regional panel and not by or against the
members of the regional panel.
[3]Schedule 4 Joint Regional
Planning Panels
Omit the definition of member from clause 1. Insert
instead:
member means the chairperson or
other member of a regional panel.
[4]Schedule 4, clause 2
(2)
Omit the subclause. Insert instead:
(2)
One of the State members is to be appointed by
the Minister as chairperson of the regional panel. The Minister is required to
obtain the concurrence of the Local Government and Shires Associations of New
South Wales to the appointment unless:
(a)
the Associations fail to notify their concurrence
or refusal to concur within 21 days of being requested to do so by the
Minister, or
(b)
the Associations have refused to concur in 2
different persons proposed by the Minister for
appointment.
[5]Schedule
4A
Insert after Schedule 4:
Schedule 4ADevelopment for which regional
panels may be authorised to exercise consent authority functions of
councils
1Definitions
(1)
In this Schedule:
capital
investment value has the same meaning as in the regulations
under this Act.
coastal
zone has the same meaning as in the Coastal Protection Act
1979.
Crown
development means development carried out by or on behalf of
the Crown (within the meaning of Division 4 of Part 4 of this
Act).
eco-tourist facility means a
building or place used for tourist and visitor accommodation, function centres
or environmental facilities, that is located in a natural environment and is
primarily used for activities involving education about, or the
interpretation, cultural understanding or appreciation of, the natural
environment.
metropolitan coastal zone means that
part of the coastal zone between the northern boundary of the local government
area of Newcastle City and the southern boundary of the local government area
of Shellharbour City.
rail
infrastructure facilities has the same meaning as it has in
Division 15 of Part 3 of State Environmental Planning Policy
(Infrastructure) 2007.
road
infrastructure facilities has the same meaning as it has in
Division 17 of Part 3 of State Environmental Planning Policy
(Infrastructure) 2007.
sensitive
coastal location means any of the following which occur
within the coastal zone:
(a)
land within 100m above mean high water mark of
the sea, a bay or an estuary,
(b)
a coastal lake,
(c)
a declared Ramsar wetland within the meaning of
the Environment Protection and Biodiversity Conservation Act
1999 of the Commonwealth,
(d)
a declared World Heritage property within the
meaning of the Environment Protection and Biodiversity Conservation Act
1999 of the Commonwealth,
(e)
land declared as an aquatic reserve under the
Fisheries Management Act
1994,
(f)
land declared as a marine park under the Marine Parks Act
1997,
(g)
land within 100m of any of the following:
(i)
the water’s edge of a coastal
lake,
(ii)
land to which paragraph (c), (d), (e) or (f)
applies,
(iii)
land reserved under the National Parks and Wildlife Act
1974,
(iv)
land to which State
Environmental Planning Policy No 14—Coastal
Wetlands applies,
(h)
residential land (within the meaning of State Environmental Planning Policy No 26—Littoral
Rainforests) that is within a distance of 100m from the
outer edge of the heavy black line on the series of maps held in the
Department and marked “State
Environmental Planning Policy No 26—Littoral Rainforests (Amendment No
2)”.
subdivision of land does not include
a boundary adjustment, a strata subdivision, or a community title subdivision
associated with another development that has been
approved.
(2)
Words and expressions in this Schedule have
(subject to subclause (1)) the same meaning as they have in the standard
instrument prescribed by the Standard
Instrument (Local Environmental Plans) Order
2006.
2Excluded
development
Development of a class or description otherwise
set out in this Schedule is excluded from this Schedule if it is:
(a)
complying development, or
(b)
development for which development consent is not
required, or
(c)
development that is State significant
development, or
(d)
development for which a person or body other than
a council is the consent authority, or
(e)
development within the area of the City of
Sydney.
3General development over $20
million
Development that has a capital investment value
of more than $20 million.
4Council related development
over $5 million
Development that has a capital investment value
of more than $5 million if:
(a)
a council for the area in which the development
is to be carried out is the applicant for development consent,
or
(b)
the council is the owner of any land on which the
development is to be carried out, or
(c)
the development is to be carried out by the
council, or
(d)
the council is a party to any agreement or
arrangement relating to the development (other than any agreement or
arrangement entered into under the Act or for the purposes of the payment of
contributions by a person other than the council).
5Crown development over $5
million
Crown development that has a capital investment
value of more than $5 million.
6Private infrastructure and
community facilities over $5 million
Development that has a capital investment value
of more than $5 million for any of the following purposes:
(a)
air transport facilities, electricity generating
works, port facilities, rail infrastructure facilities, road infrastructure
facilities, sewerage systems, telecommunications facilities, waste or resource
management facilities, water supply systems, or wharf or boating
facilities,
(b)
affordable housing, child care centres, community
facilities, correctional centres, educational establishments, group homes,
health services facilities or places of public
worship.
7Eco-tourist facilities over $5
million
Development for the purpose of eco-tourist
facilities that has a capital investment value of more than $5
million.
8Particular designated
development
Development for the purposes of:
(a)
extractive industries, which meet the
requirements for designated development under clause 19 of Schedule 3 to the
Environmental Planning and Assessment
Regulation 2000, or
(b)
marinas or other related land and water shoreline
facilities, which meet the requirements for designated development under
clause 23 of Schedule 3 to the Environmental
Planning and Assessment Regulation 2000,
or
(c)
waste management facilities or works, which meet
the requirements for designated development under clause 32 of Schedule 3 to
the Environmental Planning and Assessment
Regulation 2000.
9Coastal
subdivision
Development within the coastal zone for the
purposes of subdivision of the following kind:
(a)
subdivision of land for any purpose into more
than 100 lots, if more than 100 of the lots will not be connected to an
approved sewage treatment work or system,
(b)
subdivision of land for residential purposes into
more than 100 lots, if the land:
(i)
is not in the metropolitan coastal zone,
or
(ii)
is wholly or partly in a sensitive coastal
location,
(c)
subdivision of land for rural-residential
purposes into more than 25 lots, if the land:
(i)
is not in the metropolitan coastal zone,
or
(ii)
is wholly or partly in a sensitive coastal
location.
10Development subject to delays
in determination
Development that has a capital investment value
of more than $10 million but less than $20 million:
(a)
for which a development application to the
relevant council has been lodged but not determined within 120 days after the
application was lodged, and
(b)
that is the subject of a written request to that
council by the applicant for the application to be dealt with by a regional
panel,
unless the chairperson of the regional panel concerned
determines that the delay in determining the development application was
caused by the applicant.
11Development in council areas
where development assessment unsatisfactory
(1)
Development within the area of a particular
council for particular purposes designated by the Minister by order published
on the NSW legislation website.
(2)
Such an order cannot be made unless the Minister
is satisfied that the performance of the council concerned in dealing with
development matters has not met applicable performance
criteria.
1.6Miscellaneous
amendments
[1]Section 23
Delegation
Omit section 23 (8) (a1).
[2]Section 54 Relevant planning
authority
Omit section 54 (2) (c). Insert instead:
(c)
the Planning Assessment Commission or a joint
regional planning panel has recommended to the Minister that the proposed
instrument should be submitted for a determination under section 56 (Gateway
determination) or that the proposed instrument should be
made,
[3]Section 82A Review of
determination
Insert at the end of the section:
(12)
This section does not apply where a regional
panel exercises a council’s functions as the consent
authority.
[4]Section 110
Definitions
Insert “or Part 5.1” after
“Part 3A” in section 110 (2).
[5]Section 112 Decision of
determining authority in relation to certain activities
Insert “or Part 5.1” after
“Part 3A” in section 112 (6).
[6]Section 115R Application of
other provisions of this Act
Insert “or declared to be State significant
infrastructure” after “Part 3A applies” in section 115R
(3A).
[7]Section 115RA Shark
meshing
Insert “or declared to be State significant
infrastructure” after “Part 3A applies” in section 115RA
(3).
[8]Section 121A
Definitions
Insert “or in the case of State significant
infrastructure” after “Part 3A applies” in the definition of
consent
authority.
[9]Section 121A, definition of
“development consent”
Insert “and also includes, in the case of
State significant infrastructure, an approval under Part 5.1 to carry out the
infrastructure” after “carry out the
project”.
[10]Section 121B Orders that may
be given by consent authority or by Minister etc
Insert “, in connection with State
significant infrastructure” after “Part 3A applies” in
section 121B (1) (aa).
[11]Section 121B, Table item
18
Insert “or Part 5.1” after
“Part 3A”.
[12]Section 121D Circumstances in
which compliance with sections 121F–121K is
required
Insert at the end of the section:
, or
(d)
an order given by the Minister or the
Director-General in connection with State significant development or State
significant infrastructure.
[13]Section 121O Development
consent or approval not required to comply with order
Insert “or Part 5.1” after
“Part 3A”.
[14]Section 122A Application of
Division
Insert after section 122A (1):
(1A)
This Division also applies to the carrying out of
State significant development that has development consent under Part 4 and to
the carrying out of State significant infrastructure approved under Part 5.1.
In this Division, any such development or infrastructure is referred to as a
project.
[15]Section 122G Purposes for
which powers under Division may be exercised
Insert “or Part 5.1” after
“Part 3A” in section 122G (1) (b).
[16]Section 145B Exemption from
liability—contaminated land
Insert “or Part 5.1” after
“Part 3A” in section 145B (2) (c).
[17]Section 147 Disclosure of
political donations and gifts
Insert “or State significant
infrastructure” after “State significant development” in
paragraph (b) of the definition of relevant
planning application in section 147
(2).
[18]Section 147
(2)
Insert after paragraph (b) of the definition of
relevant
planning application:
(b1)
an application for approval of State significant
infrastructure (or for the modification of the approval for any such
infrastructure), or
[19]Schedule 6 Savings,
transitional and other provisions
Insert at the end of clause 89 (2):
This subclause ceases to have effect on the
repeal of Part 3A of the Act.
1.7Transitional arrangements for
existing Part 3A projects
[1]Schedule 6 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
Environmental
Planning and Assessment Amendment (Part 3A Repeal) Act
2011
[2]Schedule
6A
Insert after Schedule 6:
Schedule 6ATransitional
arrangements—repeal of Part 3A
1Definitions
(1)
In this Schedule:
environmental assessment
requirements means:
(a)
environmental assessment requirements for
approval to carry out a project notified to the proponent of the project under
Part 3A, or
(b)
environmental assessment requirements accepted by
the Director-General as environmental assessment requirements for approval to
carry out a project under clause 8J of the Environmental Planning and Assessment Regulation
2000,
but does not include draft environmental assessment
requirements or environmental assessment requirements for the purposes of the
approval of a concept plan.
Part
3A means Part 3A of this Act, as in force immediately before
the repeal of that Part and as modified under this Schedule after that
repeal.
Part 3A
project application means an application under Part 3A for
approval to carry out a project (or part of a project) or for approval of a
concept plan for a project.
transitional Part 3A
project—see clause 2.
(2)
Words and expressions used in this Schedule have
the same meaning as they had in Part 3A immediately before its
repeal.
2Transitional Part 3A
projects
(1)
For the purposes of this Schedule, the following
are transitional Part 3A
projects:
(a)
an approved project (whether approved before or
after the repeal of Part 3A),
(b)
a project for which environmental assessment
requirements were notified or adopted before the repeal of Part
3A,
(c)
a project that is the subject of a Part 3A
project application and that the regulations declare to be a transitional Part
3A project.
(2)
However, a transitional Part 3A project does
not include any of the following:
(a)
a project that ceases to be a project to which
Part 3A of this Act applies by the operation of State Environmental
Planning Policy (Major Development) Amendment
2011,
(b)
a project that ceases to be a project to which
Part 3A of this Act applies by the operation of any other State environmental
planning policy, of this Schedule or of a regulation under this
Act.
(3)
A transitional Part 3A project includes a part of
a project if:
(a)
that part of the project was the subject of a
separate application for approval to carry out that part of the project,
and
(b)
that part of the project meets the criteria under
this clause for a transitional Part 3A project.
(4)
A transitional Part 3A project extends to the
project as varied by changes to the Part 3A project application or project
approval, whether made before or after the repeal of Part
3A.
3Continuation of Part
3A—transitional Part 3A projects
(1)
Part 3A continues to apply to and in respect of a
transitional Part 3A project.
(2)
For that purpose:
(a)
any State environmental planning policy or other
instrument made under Part 3A, as in force on the repeal of that Part and as
amended after that repeal, continues to apply to and in respect of a
transitional Part 3A project, and
(b)
declarations, orders, directions, determinations
or other decisions with respect to a transitional Part 3A project continue to
have effect and may continue to be made under Part 3A (including for the
purpose of the application or continued application of Part 4 or 5 or other
provisions of this Act in relation to the project).
(3)
The regulations may modify provisions of Part 3A
(and the instruments or decisions referred to in subclause (2)) as they apply
to a transitional Part 3A project.
(4)
The declaration of development as a project under
Part 3A (or as a critical infrastructure project) is revoked if the
development is not, or ceases to be, a transitional Part 3A
project.
(5)
A transitional Part 3A project is not State
significant development or State significant
infrastructure.
(6)
This clause is subject to the other provisions of
this Schedule.
4Construing references to Part
3A
A reference in this Act (other than this
Schedule) or in any other Act or in any instrument made under an Act to Part
3A or to a provision of that Part is to be construed as a reference to that
Part or that provision as continued by this Schedule.
5Part 3A projects that become
State significant infrastructure
(1)
Specified development on specified land that was
a project to which Part 3A applied immediately before its repeal may be
declared to be State significant infrastructure under section 115U
(4).
(2)
Any such development may be declared to be State
significant infrastructure whether or not the development is a transitional
Part 3A project. On the making of the declaration it ceases to be a
transitional Part 3A project.
(3)
Despite anything to the contrary in any
environmental planning instrument, any such development that is declared to be
State significant infrastructure is taken to be development that may be
carried out without development consent under Part 4.
(4)
For the purposes of Part 5.1 of the Act in its
application to any such development:
(a)
a concept plan approved under Part 3A in relation
to the development (whether before or after the repeal of Part 3A) is taken to
be an approval (and the concept proposals) for a staged infrastructure
application under Division 3 of Part 5.1, and
(b)
any approval under Part 3A to carry out part of
the development is taken to be approval under Part 5.1 for the carrying out of
that stage of the development, and
(c)
any environmental assessment requirements, any
statement of environmental assessment, any public exhibition or any other
action under Part 3A in relation to the development is taken to be
environmental assessment requirements, an environmental impact statement,
public exhibition or other action taken under the corresponding provisions of
Part 5.1, unless the Director-General directs that any such action be taken
again under Part 5.1.
6Part 3A projects that become
State significant development
(1)
This clause applies to development (other than a
transitional Part 3A project or State significant infrastructure) that was a
project the subject of a Part 3A project application and that becomes State
significant development.
(2)
For the purposes of Part 4 in its application to
any such development:
(a)
any approval under Part 3A to carry out part of
the development is taken to be a development consent under Part 4 for the
carrying out of that stage of the development, and
(b)
any environmental assessment requirements, any
statement of environmental assessment, any public exhibition or any other
action under Part 3A in relation to the development are taken to be
environmental assessment requirements, an environment impact statement, public
exhibition or other action taken under the corresponding provisions of Part 4,
unless the Director-General directs that any such action be taken again under
Part 4.
7Regulations relating to
projects ceasing to be Part 3A
(1)
The regulations may make provision for or with
respect to the effect of the revocation (whether or not under this Schedule)
of a declaration of development as a project under Part 3A or as a critical
infrastructure project.
(2)
In particular, the regulations may make provision
for or with respect to:
(a)
the revival of consents or approvals under other
Parts of this Act, and
(b)
the recognition of any environmental assessment
or any other action for the purposes of other Parts of this Act,
and
(c)
the continuing effect of provisions of Part 3A
for the purposes of other Parts of this Act.
8Continuing operation of Part
3A concept plan provisions for non-Part 3A transitional
projects
(1)
This clause applies to development:
(a)
that was a project the subject of a Part 3A
project application before the repeal of Part 3A (but not an approved
project), and
(b)
that is not a transitional Part 3A project to
which Part 3A continues to apply, and
(c)
that is not State significant infrastructure for
which a concept plan has been approved under Part
3A.
This clause applies even if the declaration of
the development as a project to which Part 3A applies has been
revoked.
(2)
If the Director-General had, before the repeal of
Part 3A, notified the proponent of environmental assessment requirements for
an application for approval of a concept plan for development to which this
clause applies, Part 3A continues to apply for the purposes only of the
determination of the application (including for the purposes of the
modification of any concept plan that is approved by the
determination).
(3)
The regulations may modify provisions of Part 3A
as they continue to apply for those purposes.
(4)
The following provisions apply to development to
which this clause applies that is covered by a concept plan that is approved
under Part 3A (whether before or after the repeal of Part 3A):
(a)
the development is taken to be development that
may be carried out with development consent under Part 4 (despite anything to
the contrary in an environmental planning instrument),
(b)
any development standard that is within the terms
of the approval of the concept plan has effect,
(c)
a consent authority must not grant consent under
Part 4 for the development unless it is satisfied that the development is
generally consistent with the terms of the approval of the concept
plan,
(d)
a consent authority may grant consent under Part
4 for the development without complying with any requirement under any
environmental planning instrument relating to a master
plan,
(e)
the provisions of any environmental planning
instrument or any development control plan do not have effect to the extent to
which they are inconsistent with the terms of the approval of the concept
plan,
(f)
an order or direction under section 75P (2) has
no effect to the extent to which it is inconsistent with the terms of the
approval of the concept plan.
9Compensation not
payable
(1)
Compensation is not payable by or on behalf of
the State:
(a)
because of the enactment, making or operation of
any of the following:
(i)
the Environmental
Planning and Assessment Amendment (Part 3A Repeal) Act
2011,
(ii)
State Environmental Planning Policy
(Major Development) Amendment 2011 or any other
environmental planning instrument, regulation or decision relating to the
removal of any project from the operation of Part 3A (whether made before or
after the commencement of this clause), or
(b)
because of any consequence of any such enactment,
making or operation, or
(c)
because of any statement or conduct relating to
any such enactment, making or operation, or
(d)
because of any other statement or conduct
relating to the repeal or proposed repeal of Part 3A (including the
termination of consideration of any application or proposal under that Part in
anticipation of its repeal).
(2)
This clause extends to statements, conduct and
any other matter occurring before the commencement of this
clause.
(3)
In this clause:
compensation includes damages or any
other form of monetary compensation.
conduct includes any act or
omission, whether unconscionable, misleading, deceptive or
otherwise.
statement includes a representation
of any kind:
(a)
whether made verbally or in writing,
and
(b)
whether negligent, false, misleading or
otherwise.
the
State means the Crown within the meaning of the Crown Proceedings Act 1988 or an
officer, employee or agent of the Crown.
10Savings and transitional
regulations
(1)
This clause applies to regulations made under
Part 1 of Schedule 6 that contain provisions of a savings or transitional
nature consequent on the enactment of the Environmental
Planning and Assessment Amendment (Part 3A Repeal) Act
2011.
(2)
The provisions of those regulations have effect
despite anything to the contrary in this Schedule.
(3)
The regulations may make separate savings and
transitional provisions or amend this Schedule to consolidate the savings and
transitional provisions.
Schedule 2Consequential and other
amendments
2.1Aboriginal Land Rights Act 1983 No
42
Section 40
Interpretation
Insert at the end of paragraph (b) of the
definition of development application in section
40 (1):
, or
(c)
an application for approval of State significant
infrastructure under Part 5.1 of the Environmental
Planning and Assessment Act
1979.
2.2Barangaroo Delivery Authority Act 2009 No
2
Section 4
Definitions
Insert “and State significant
infrastructure within the meaning of Part 5.1 of that Act” after
“of that Act” in the definition of development in section 4
(1).
2.3Building and Construction Industry Long Service Payments Act
1986 No 19
Section 3
Definitions
Insert “or Part 5.1” after
“Part 3A” in section 3 (3).
2.4Coastal Protection Act 1979 No
13
[1]Section 37B Concurrence of
Minister not required for certain development
Omit the note to the section. Insert
instead:
Note—
The concurrence of the Minister under this Part
is also not required for other development under the Environmental Planning and Assessment Act
1979 (see projects approved under Part 3A and State
significant development or infrastructure).
[2]Section 55K Breach of coastal
zone management plan: offence
Insert “or approved State significant
infrastructure within the meaning of Part 5.1 of that Act” after
“of that Act” in section 55K (b).
[3]Section 55L Breach of coastal
zone management plan: restraint
Insert “or approved State significant
infrastructure within the meaning of Part 5.1 of that Act” after
“of that Act” in section 55L (5) (a).
[4]Section 55Y Removal of
emergency coastal protection works
Insert “or approved State significant
infrastructure within the meaning of Part 5.1 of that Act” after
“of that Act” in section 55Y (4).
[5]Section 55ZA Order to remove
certain materials and structures unlawfully placed on beaches (other than
emergency coastal protection works)
Insert “or approved State significant
infrastructure within the meaning of Part 5.1 of that Act” after
“of that Act” in section 55ZA (6).
[6]Section 55ZB Stop work orders
relating to materials and structures unlawfully being placed on beaches (other
than emergency coastal protection works)
Insert “or approved State significant
infrastructure within the meaning of Part 5.1 of that Act” after
“of that Act” in section 55ZB (2).
2.5Electricity Supply (General) Regulation
2001
Clause 104A
Definitions
Insert “or Part 5.1” after
“Part 3A” in paragraph (b) of the definition of development consent in clause 104A
(1).
2.6Fisheries Management Act 1994 No
38
[1]Section 163 Grant of
aquaculture lease
Insert “or Part 5.1” after
“Part 3A” in section 163 (7B) (b).
[2]Section 218 Fishways to be
provided in construction of dams and weirs
Insert “or Part 5.1” after
“Part 3A” in section 218 (5C).
[3]Section 220ZF
Defences
Insert after section 220ZF (1) (b) (iii):
(iv)
State significant infrastructure approved under
Part 5.1 of the Environmental Planning and Assessment
Act 1979, or
2.7Forestry and National Park Estate Act 1998 No
163
Section 36 Application of
Environmental Planning and Assessment Act
1979
Insert “, or State significant
infrastructure under Part 5.1,” after “Part 3A” in section
36 (2A).
2.8Gas Supply (Safety and Network Management) Regulation
2008
Clause 34A
Definitions
Insert “or Part 5.1” after
“Part 3A” in paragraph (b) of the definition of development consent in clause 34A
(1).
2.9Hawkesbury-Nepean River Act 2009 No
14
Section 4
Definitions
Insert “, State significant infrastructure
(within the meaning of Part 5.1 of that Act)” after “Part 3A of
that Act)” in the definition of in-stream
development in section 4 (1).
2.10Heritage Act 1977 No
136
[1]Section 56
Definitions
Omit paragraph (a) of the definition of prescribed application. Insert
instead:
(a)
the Environmental
Planning and Assessment Act 1979, not being an application
under Part 3A or Part 5.1 or an application relating to State significant
development or integrated development,
[2]Section 66 Application of
Subdivision
Omit “Part 3A and Division 5 of Part 4
excepted”.
Insert instead “Part 3A, the provisions
relating to State significant development or integrated development and Part
5.1 excepted”.
2.11Homebush Motor Racing (Sydney 400) Act 2008 No
106
Section 26 Application of
Environmental Planning and Assessment Act
1979
Insert “, or State significant
infrastructure under Part 5.1,” after “Part 3A” in section
26 (3).
2.12Liquor
Act 2007 No 90
Section 45 Decision of
Authority in relation to licence application
Insert “or Part 5.1” after
“Part 3A” in section 45 (3) (c).
2.13Liquor Regulation
2008
Clause 15 Applications for
certain licence-related authorisations
Insert “or Part 5.1” after
“Part 3A” in clause 15 (2) (b).
2.14Major
Events Act 2009 No 73
Section 51 Modification of
environmental planning instruments and development
consents
Insert “or Part 5.1” after
“Part 3A” in the definition of development consent in section 51
(7).
2.15Marine Parks (Zoning Plans) Regulation
1999
Clause 1.41 Consent by
relevant Ministers not required for certain activities
Insert “, or State significant
infrastructure under Part 5.1,” after “Part 3A” in clause
1.41 (2) (c).
2.16Mining
Act 1992 No 29
[1]Section 168A Addition or
variation of conditions in certain circumstances
Insert “or Part 5.1” after
“Part 3A” in the note to section 168A (1).
[2]Schedule 1 Public consultation
with respect to the granting of assessment leases and mining
leases
Insert “or Part 5.1” after
“Part 3A” in clause 4A.
[3]Dictionary
Insert “or Part 5.1” after
“Part 3A” in the definition of development
consent.
2.17Motor
Sports (World Rally Championship) Act 2009 No
55
Section 10 Application of
Environmental Planning and Assessment Act
1979
Insert “, or State significant
infrastructure under Part 5.1,” after “Part 3A” in section
10 (3).
2.18National Parks and Wildlife Act 1974 No
80
[1]Section 91AA Director-General
may make stop work order
Insert at the end of section 91AA (4) (d):
, or
(e)
State significant infrastructure approved under
Part 5.1 of the Environmental Planning and Assessment
Act 1979.
[2]Section 98 Harming protected
fauna, other than threatened species, endangered populations or endangered
ecological communities
Insert at the end of section 98 (5) (d):
, or
(e)
State significant infrastructure approved under
Part 5.1 of the Environmental Planning and Assessment
Act 1979.
[3]Section 99A Directions
relating to protected fauna
Insert after section 99A (6) (c1):
(c2)
in relation to anything essential for the
carrying out of State significant infrastructure approved under Part 5.1 of
the Environmental Planning and Assessment Act
1979, or
[4]Section 118A Harming or
picking threatened species, endangered populations or endangered ecological
communities
Insert after section 118A (3) (b) (iv):
(v)
State significant infrastructure approved under
Part 5.1 of the Environmental Planning and Assessment
Act 1979, or
[5]Section 118C Damage to
critical habitat
Insert after section 118C (5) (b) (iv):
(v)
State significant infrastructure approved under
Part 5.1 of the Environmental Planning and Assessment
Act 1979, or
[6]Section 118D Damage to habitat
of threatened species, endangered populations or endangered ecological
communities
Insert after section 118D (2) (b) (iv):
(v)
State significant infrastructure approved under
Part 5.1 of the Environmental Planning and Assessment
Act 1979, or
[7]Section 156A Offence of
damaging reserved land
Insert after section 156A (2) (c) (iii):
(iv)
State significant infrastructure approved under
Part 5.1 of the Environmental Planning and Assessment
Act 1979, or
2.19National Parks and Wildlife Regulation
2009
[1]Clause 11 Littering and
damage
Insert after clause 11 (2) (b) (iii):
(iv)
State significant infrastructure approved under
Part 5.1 of the Environmental Planning and Assessment
Act 1979, or
[2]Clause 17 Erection and
occupation of structures
Insert after clause 17 (2) (b) (iii):
(iv)
State significant infrastructure approved under
Part 5.1 of the Environmental Planning and Assessment
Act 1979, or
[3]Clause 18 Protection of
vegetation
Insert after clause 18 (2) (b) (iii):
(iv)
State significant infrastructure approved under
Part 5.1 of the Environmental Planning and Assessment
Act 1979, or
2.20Petroleum (Onshore) Act 1991 No
84
[1]Section 48 Application of this
Division to Government bodies where development consent etc not
required
Insert “or Part 5.1” after
“Part 3A” in section 48 (1).
[2]Section 54A Division applies
only where development consent etc not required
Insert “or Part 5.1” after
“Part 3A”.
2.21Plantations and Reafforestation Act 1999 No
97
Section 9 Offence with respect
to unauthorised plantations
Insert at the end of paragraph (b) in the
definition of ancillary
plantation operations in section 9 (4):
, or
(c)
the carrying out of approved State significant
infrastructure within the meaning of Part 5.1 of that
Act,
2.22Protection of the Environment Operations Act
1997 No 156
[1]Section 50 Timing of licensing
of development requiring consent under EP&A Act
Insert “or infrastructure” after
“a project” in the definition of development consent in section 50
(4).
[2]Section 50
(4)
Insert “or Part 5.1” after
“Part 3A” in the definition of development
consent.
2.23Redfern–Waterloo Authority Act 2004 No
107
[1]Section 28 Authority as
approval body for State infrastructure or other significant
projects
Insert “, or State significant
infrastructure for the purposes of Part 5.1,” after “Part
3A” in section 28 (1).
[2]Section 29 Heritage
matters
Insert “or that is State significant
infrastructure to which Part 5.1 of that Act applies” after “Part
3A of that Act applies” in section 29 (1).
2.24Roads
Act 1993 No 33
Section 64 RTA may exercise
functions of roads authority with respect to certain
roads
Insert “, or State significant
infrastructure approved under Part 5.1,” after “Part 3A” in
section 64 (1A).
2.25Statutory and Other Offices Remuneration Act
1975 (1976 No 4)
Schedule 2 Public
Offices
Insert at the end of Part 1 of the
Schedule:
Full-time member of the Planning Assessment
Commission
2.26Subordinate Legislation Act 1989 No
146
Section 10A Certain statutory
rules to remain in force
Insert after section 10A (2):
(3)
Despite the other provisions of this Part, the
Environmental Planning and Assessment
Regulation 2000 remains in force until 1 September 2013,
unless sooner repealed.
2.27Threatened Species Conservation Act 1995 No
101
[1]Section 114 Director-General
may make stop work order
Insert after section 114 (4) (a1):
(a2)
State significant infrastructure approved under
Part 5.1 of the Planning Act, or
[2]Section 126I Effect of
biodiversity certification
Insert after section 126I (1):
(1A)Infrastructure under Part 5.1
of the Planning Act
The environmental assessment requirements for the
approval of State significant infrastructure under Part 5.1 of the Planning
Act do not require an assessment of the impact of the infrastructure on
biodiversity values if the infrastructure is carried out or proposed to be
carried out on biodiversity certified land.
[3]Section 126ZW Effect of
changes to biodiversity certification on development and other
activities
Insert after section 126ZW (1) (a):
(a1)
any approval of State significant infrastructure
under Part 5.1 of the Planning Act granted before the suspension, revocation,
modification or expiry,
[4]Part 7A, Introductory
note
Insert “or Part 5.1” after
“Part 3A”.
[5]Section 127ZG Application for
retirement of biodiversity credits
Omit section 127ZG (2) (c). Insert
instead:
(c)
for the purpose of complying with a condition of
an approval or consent granted by the Minister under Part 3A, Part 4 or Part
5.1 of the Planning Act, or
[6]Section 127ZJ Development for
which biobanking is available
Insert “or development that is State
significant infrastructure under Part 5.1 of that Act” after “Part
3A of the Planning Act applies”.
[7]Section 127ZQ Modification,
revocation and lapsing of biobanking statement
Insert after section 127ZQ (7) (a):
(a1)
in the case of a statement that relates to State
significant infrastructure to which Part 5.1 of the Planning Act applies, the
Minister administering that Act approves the infrastructure,
or
[8]Section 127ZR Minister may
require retirement of credits
Insert after section 127ZR (3) (a):
(a1)
in the case of a statement that relates to State
significant infrastructure to which Part 5.1 of the Planning Act applies, the
Minister administering that Act imposes the credit retirement condition as a
condition of approval under that Part, or
2.28Threatened Species Conservation Regulation
2010
Clause 33
Defences
Insert after clause 33 (c) (ii):
(iia)
State significant infrastructure approved under
Part 5.1 of that Act, or
2.29Transport Administration Act 1988 No
109
Section 18
Definitions
Insert “, State significant infrastructure
within the meaning of Part 5.1 of that Act” after “Part 3A of that
Act” in the definition of development in section 18
(1).
2.30Water
Management Act 2000 No 92
Section 345 Harm to aquifers
and waterfront land
Insert after section 345 (3) (a) (iv):
(v)
infrastructure approved under Part 5.1 of that
Act, or
2.31Water Sharing Plan for the Bega and Brogo Rivers Area
Regulated, Unregulated and Alluvial Water Sources
2011
Clause 89
General
Insert “, or State significant
infrastructure approved under Part 5.1,” after “Part 3A” in
clause 89 (5).
2.32Water Sharing Plan for the Greater Metropolitan Region
Groundwater Sources 2011
[1]Clause 36 Access rules for the
taking of water
Insert “, or State significant
infrastructure approved under Part 5.1,” after “Part 3A” in
clause 36 (1).
[2]Clause 53
General
Insert “, or State significant
infrastructure approved under Part 5.1,” after “Part 3A” in
clause 53 (3).
2.33Water Sharing Plan for the Murrah-Wallaga Area Unregulated
and Alluvial Water Sources 2010
Clause 59
General
Insert “, or State significant
infrastructure approved under Part 5.1,” after “Part 3A” in
clause 59 (3).
2.34Water Sharing Plan for the Richmond River Area Unregulated,
Regulated and Alluvial Water Sources
2010
Clause 81
General
Insert “, or State significant
infrastructure approved under Part 5.1,” after “Part 3A” in
clause 81 (3).
2.35Water Sharing Plan for the Towamba River Unregulated and
Alluvial Water Sources 2010
Clause 61
General
Insert “, or State significant
infrastructure approved under Part 5.1,” after “Part 3A” in
clause 61 (3).
2.36Water Sharing Plan for the Tweed River Area Unregulated and
Alluvial Water Sources 2010
Clause 64
General
Insert “, or State significant
infrastructure approved under Part 5.1,” after “Part 3A” in
clause 64 (3).
Historical
notes
Table of amending
instruments
Environmental
Planning and Assessment Amendment (Part 3A Repeal) Act 2011 No
22. Assented to 27.6.2011. Date of commencement, Sch 2.26 excepted:
not in force; date of commencement of Sch 2.26, 26.8.2011, sec 2 and 2011
(463) LW 26.8.2011.