2021
2021
2022-09-23
act-1979-203
Environmental Planning and Assessment Act
1979
e2021-114
sep
epi.electronic
epi-2021-0730
allinforce
LW 2 December 2021
epi-2021-0730
61491c03-0298-4912-96ff-338a37060511
04a14a73-b93b-4c5a-9762-5a9d5caf0520
gazette
Does not include amendments
by—
State Environmental Planning Policy
Amendment (Coastal Mapping and Native Vegetation) 2022
(571) (not commenced — to commence on
3.10.2022)
Chapter 1Preliminary
1.1Name of Policy
This Policy is State
Environmental Planning Policy (Resilience and Hazards)
2021.
1.2Commencement
This Policy commences on 1 March 2022 and is
required to be published on the NSW legislation
website.
1.3Definitions
In this Policy—
the
Act means the Environmental
Planning and Assessment Act 1979.
Note—
The Act and the Interpretation
Act 1987 contain definitions and other provisions that
affect the interpretation and application of this
Policy.
1.4Transferred provisions
The Interpretation
Act 1987, section 30A is taken to apply to the provisions
transferred to this Policy on the commencement of this Policy in the same way
as it applies to provisions transferred from a statutory rule to another
statutory rule.
Note—
The Interpretation
Act 1987, section 30A provides—
(a)
the transfer of a provision does not affect the
operation or meaning of the provision, and
(b)
a transferred provision is to be construed as if
it had not been transferred.
Chapter 2Coastal management
Part 2.1Preliminary
2.1Aim of Chapter
The aim of this Chapter is to promote an
integrated and co-ordinated approach to land use planning in the coastal zone
in a manner consistent with the objects of the Coastal
Management Act 2016, including the management objectives
for each coastal management area, by—
(a)
managing development in the coastal zone and
protecting the environmental assets of the coast, and
(b)
establishing a framework for land use planning to
guide decision-making in the coastal zone, and
(c)
mapping the 4 coastal management areas that
comprise the NSW coastal zone for the purpose of the definitions in the
Coastal Management Act
2016.
2.2Interpretation
(1)
In this Chapter—
certified coastal
management program means the following—
(a)
a coastal management program prepared, adopted
and certified under Part 3 of the Coastal
Management Act 2016,
(b)
a coastal zone management plan under the Coastal Protection Act 1979 that
continues to have effect under clause 4 of Schedule 3 to the Coastal Management Act
2016,
(c)
a coastal zone management plan under the Coastal Protection Act 1979, certified
and made in accordance with clause 6(1) of Schedule 3 to the Coastal Management Act 2016, that is
taken to be a coastal management program prepared and adopted under that
Act.
coastal environment
area—see section 2.4(4).
Coastal Environment Area
Map means the State Environmental Planning Policy (Coastal Management)
2018 Coastal Environment Area Map.
coastal lake means a body
of water identified in Schedule 1.
coastal use
area—see section 2.4(5).
Coastal Use Area
Map means the State Environmental Planning Policy (Coastal Management)
2018 Coastal Use Area Map.
coastal vulnerability
area—see section 2.4(3).
Coastal Vulnerability Area
Map means the State Environmental Planning Policy (Coastal Management)
2018 Coastal Vulnerability Area Map. [Not adopted.]
Note—
At the commencement of this Chapter, no Coastal Vulnerability Area
Map was adopted and therefore no coastal vulnerability
area has been identified.
coastal
wetlands and littoral rainforests area—see section
2.4(2).
Coastal
Wetlands and Littoral Rainforests Area Map means the State Environmental Planning Policy
(Coastal Management) 2018 Coastal Wetlands and Littoral Rainforests Area
Map.
public authority has
the same meaning as in the Act.
the
Act means the Environmental
Planning and Assessment Act 1979.
Note—
The Act and the Interpretation
Act 1987 contain definitions and other provisions that
affect the interpretation and application of this
Chapter.
(2)
Words and expressions used in this Chapter have
the same meanings as they have in the Coastal
Management Act 2016, unless otherwise defined in this
Chapter.
(3)
Subject to subsection (2), words and expressions
used in this Chapter have the same meanings as they have in the standard
instrument set out in the Standard Instrument (Local
Environmental Plans) Order 2006, unless otherwise defined
in this Chapter.
(4)
Notes included in this Chapter do not form part
of this Chapter.
2.3Land to which Chapter applies
This Chapter applies to land within the coastal
zone.
2.4Identification of coastal management
areas
Note—
Section 5 of the Coastal
Management Act 2016 provides that the coastal zone means the
area of land comprised of the following coastal management areas—
(a)
the coastal wetlands and littoral rainforests
area,
(b)
the coastal vulnerability
area,
(c)
the coastal environment area,
(d)
the coastal use area.
(1)
This section identifies land for the purposes of
the Coastal Management Act 2016 and this
Chapter.
(2)
The coastal
wetlands and littoral rainforests area is the land
identified as such by the Coastal
Wetlands and Littoral Rainforests Area Map.
Note—
The coastal
wetlands and littoral rainforests area is made up of land
identified as “coastal wetlands” or as “littoral
rainforests” on the Coastal
Wetlands and Littoral Rainforests Area Map. The land so
identified includes land identified as “proximity area for coastal
wetlands” and “proximity area for littoral
rainforest”.
(3)
The coastal vulnerability
area is the land identified as such by the Coastal Vulnerability Area
Map.
Note—
At the commencement of this Chapter, no Coastal
Vulnerability Area Map was adopted and therefore no coastal vulnerability area
has been identified.
(4)
The coastal environment
area is the land identified as such by the Coastal Environment Area
Map.
(5)
The coastal use area is
the land identified as such by the Coastal Use Area
Map.
2.5Relationship with other environmental planning
instruments
(1)
In the event of an inconsistency between this
Chapter and another environmental planning instrument, whether made before or
after the commencement of this Chapter, this Chapter prevails to the extent of
the inconsistency.
(2)
This Chapter does not apply to land within the
Lease Area within the meaning of State
Environmental Planning Policy (Three Ports)
2013.
2.6Maps
(1)
A reference in this Chapter to a named map
adopted by this Chapter is a reference to a map by that name—
(a)
approved by the Minister when the map is adopted,
and
(b)
as amended or replaced from time to time by maps
declared by environmental planning instruments to amend or replace that map,
and approved by the Minister when the instruments are
made.
(2)
Any 2 or more named maps may be combined into a
single map. In that case, a reference in this Chapter to any such named map is
a reference to the relevant part or aspect of the single
map.
(3)
Any such maps are to be kept and made available
for public access in accordance with arrangements approved by the
Minister.
(4)
For the purposes of this Chapter, a map may be
in, and may be kept and made available in, electronic or paper form, or
both.
Note—
The maps adopted by this Chapter are to be made
available on the NSW Planning Portal.
Part 2.2Development controls for coastal management
areas
Division 1Coastal wetlands and littoral rainforests
area
2.7Development on certain land within coastal wetlands and
littoral rainforests area
(1)
The following may be carried out on land
identified as “coastal wetlands” or “littoral
rainforest” on the Coastal
Wetlands and Littoral Rainforests Area Map only with
development consent—
(a)
the clearing of native vegetation within the
meaning of Part 5A of the Local Land Services Act
2013,
(b)
the harm of marine vegetation within the meaning
of Division 4 of Part 7 of the Fisheries Management Act
1994,
(c)
the carrying out of any of the
following—
(i)
earthworks (including the depositing of material
on land),
(ii)
constructing a levee,
(iii)
draining the land,
(iv)
environmental protection
works,
(d)
any other development.
Note—
Clause 2.14 provides that, for the avoidance of
doubt, nothing in this Part—
(a)
permits the carrying out of development that is
prohibited development under another environmental planning instrument,
or
(b)
permits the carrying out of development without
development consent where another environmental planning instrument provides
that the development may be carried out only with development
consent.
(2)
Development for which consent is required by
subsection (1), other than development for the purpose of environmental
protection works, is declared to be designated development for the purposes of
the Act.
(3)
Despite subsection (1), development for the
purpose of environmental protection works on land identified as “coastal
wetlands” or “littoral rainforest” on the Coastal Wetlands and Littoral Rainforests
Area Map may be carried out by or on behalf of a public
authority without development consent if the development is identified
in—
(a)
the relevant certified coastal management
program, or
(b)
a plan of management prepared and adopted under
Division 2 of Part 2 of Chapter 6 of the Local Government
Act 1993, or
(c)
a plan of management under Division 3.6 of the
Crown Land Management Act
2016.
(4)
A consent authority must not grant consent for
development referred to in subsection (1) unless the consent authority is
satisfied that sufficient measures have been, or will be, taken to protect,
and where possible enhance, the biophysical, hydrological and ecological
integrity of the coastal wetland or littoral rainforest.
(5)
Nothing in this section requires consent for the
damage or removal of a priority weed within the meaning of clause 32 of
Schedule 7 to the Biosecurity Act
2015.
(6)
This section does not apply to the carrying out
of development on land reserved under the National Parks
and Wildlife Act 1974 if the proposed development is
consistent with a plan of management prepared under that Act for the land
concerned.
2.8Development on land in proximity to coastal wetlands or
littoral rainforest
Note—
The Coastal Wetlands and Littoral Rainforests Area
Map identifies certain land that is inside the coastal
wetlands and littoral rainforests area as “proximity area for coastal
wetlands” or “proximity area for littoral rainforest” or
both.
(1)
Development consent must not be granted to
development on land identified as “proximity area for coastal
wetlands” or “proximity area for littoral rainforest” on the
Coastal Wetlands and Littoral
Rainforests Area Map unless the consent authority is
satisfied that the proposed development will not significantly impact
on—
(a)
the biophysical, hydrological or ecological
integrity of the adjacent coastal wetland or littoral rainforest,
or
(b)
the quantity and quality of surface and ground
water flows to and from the adjacent coastal wetland or littoral
rainforest.
(2)
This section does not apply to land that is
identified as “coastal wetlands” or “littoral
rainforest” on the Coastal
Wetlands and Littoral Rainforests Area
Map.
Division 2Coastal vulnerability area
Note—
At the commencement of this Chapter, no Coastal Vulnerability Area
Map was adopted and therefore no coastal vulnerability
area has been identified.
2.9Development on land within the coastal vulnerability
area
Development consent must not be granted to
development on land that is within the area identified as “coastal
vulnerability area” on the Coastal Vulnerability Area Map unless
the consent authority is satisfied that—
(a)
if the proposed development comprises the
erection of a building or works—the building or works are engineered to
withstand current and projected coastal hazards for the design life of the
building or works, and
(b)
the proposed development—
(i)
is not likely to alter coastal processes to the
detriment of the natural environment or other land, and
(ii)
is not likely to reduce the public amenity,
access to and use of any beach, foreshore, rock platform or headland adjacent
to the proposed development, and
(iii)
incorporates appropriate measures to manage risk
to life and public safety from coastal hazards, and
(c)
measures are in place to ensure that there are
appropriate responses to, and management of, anticipated coastal processes and
current and future coastal hazards.
Division 3Coastal environment area
2.10Development on land within the coastal environment
area
(1)
Development consent must not be granted to
development on land that is within the coastal environment area unless the
consent authority has considered whether the proposed development is likely to
cause an adverse impact on the following—
(a)
the integrity and resilience of the biophysical,
hydrological (surface and groundwater) and ecological
environment,
(b)
coastal environmental values and natural coastal
processes,
(c)
the water quality of the marine estate (within
the meaning of the Marine Estate Management Act
2014), in particular, the cumulative impacts of the
proposed development on any of the sensitive coastal lakes identified in
Schedule 1,
(d)
marine vegetation, native vegetation and fauna
and their habitats, undeveloped headlands and rock
platforms,
(e)
existing public open space and safe access to and
along the foreshore, beach, headland or rock platform for members of the
public, including persons with a disability,
(f)
Aboriginal cultural heritage, practices and
places,
(g)
the use of the surf
zone.
(2)
Development consent must not be granted to
development on land to which this section applies unless the consent authority
is satisfied that—
(a)
the development is designed, sited and will be
managed to avoid an adverse impact referred to in subsection (1),
or
(b)
if that impact cannot be reasonably
avoided—the development is designed, sited and will be managed to
minimise that impact, or
(c)
if that impact cannot be minimised—the
development will be managed to mitigate that
impact.
(3)
This section does not apply to land within the
Foreshores and Waterways Area within the meaning of Sydney Regional Environmental Plan (Sydney Harbour
Catchment) 2005.
Division 4Coastal use area
2.11Development on land within the coastal use
area
(1)
Development consent must not be granted to
development on land that is within the coastal use area unless the consent
authority—
(a)
has considered whether the proposed development
is likely to cause an adverse impact on the following—
(i)
existing, safe access to and along the foreshore,
beach, headland or rock platform for members of the public, including persons
with a disability,
(ii)
overshadowing, wind funnelling and the loss of
views from public places to foreshores,
(iii)
the visual amenity and scenic qualities of the
coast, including coastal headlands,
(iv)
Aboriginal cultural heritage, practices and
places,
(v)
cultural and built environment heritage,
and
(b)
is satisfied that—
(i)
the development is designed, sited and will be
managed to avoid an adverse impact referred to in paragraph (a),
or
(ii)
if that impact cannot be reasonably
avoided—the development is designed, sited and will be managed to
minimise that impact, or
(iii)
if that impact cannot be minimised—the
development will be managed to mitigate that impact,
and
(c)
has taken into account the surrounding coastal
and built environment, and the bulk, scale and size of the proposed
development.
(2)
This section does not apply to land within the
Foreshores and Waterways Area within the meaning of Sydney Regional Environmental Plan (Sydney Harbour
Catchment) 2005.
Division 5General
2.12Development in coastal zone generally—development
not to increase risk of coastal hazards
Development consent must not be granted to
development on land within the coastal zone unless the consent authority is
satisfied that the proposed development is not likely to cause increased risk
of coastal hazards on that land or other land.
2.13Development in coastal zone generally—coastal
management programs to be considered
Development consent must not be granted to
development on land within the coastal zone unless the consent authority has
taken into consideration the relevant provisions of any certified coastal
management program that applies to the land.
2.14Other development controls not
affected
Subject to section 2.5, for the avoidance of
doubt, nothing in this Part—
(a)
permits the carrying out of development that is
prohibited development under another environmental planning instrument,
or
(b)
permits the carrying out of development without
development consent where another environmental planning instrument provides
that the development may be carried out only with development
consent.
2.15Hierarchy of development controls if
overlapping
If a single parcel of land is identified by this
Chapter as being within more than one coastal management area and the
development controls of those coastal management areas are inconsistent, the
development controls of the highest of the following coastal management areas
(set out highest to lowest) prevail to the extent of the
inconsistency—
(a)
the coastal wetlands and littoral rainforests
area,
(b)
the coastal vulnerability
area,
(c)
the coastal environment area,
(d)
the coastal use area.
Part 2.3Miscellaneous
2.16Coastal protection works
Note—
Section 4 (1) of the Coastal Management Act 2016 defines
coastal protection
works to mean—
(a)
beach nourishment activities or works,
and
(b)
activities or works to reduce the impact of
coastal hazards on land adjacent to tidal waters, including (but not limited
to) seawalls, revetments and groynes.
Section 27 of the Coastal
Management Act 2016 also contains provisions dealing with
the granting of development consent to development for the purpose of coastal
protection works.
(1)Coastal protection works by person other than
public authority
Development for the purpose of coastal protection
works may be carried out on land to which this Chapter applies by a person
other than a public authority only with development consent.
Note—
See clause 8A of Schedule 7 to State Environmental Planning Policy (State and Regional
Development) 2011, which declares certain development for
the purpose of coastal protection works to be regionally significant
development for which a Sydney district or regional planning panel is the
consent authority.
(2)Coastal protection works by public
authority
Development for the purpose of coastal protection
works may be carried out on land to which this Chapter applies by or on behalf
of a public authority—
(a)
without development consent—if the coastal
protection works are—
(i)
identified in the relevant certified coastal
management program, or
(ii)
beach nourishment, or
(iii)
the placing of sandbags for a period of not more
than 90 days, or
(iv)
routine maintenance works or repairs to any
existing coastal protection works, or
(b)
with development consent—in any other
case.
Note—
See clause 8A of Schedule 7 to State Environmental Planning Policy (State and Regional
Development) 2011, which declares certain development for
the purpose of coastal protection works to be regionally significant
development for which a Sydney district or regional planning panel is the
consent authority.
(3)Emergency coastal protection works by public
authority
Development for the purpose of emergency coastal
protection works carried out on land to which this Chapter applies is exempt
development if it is carried out by or on behalf of a public authority in
accordance with a coastal zone emergency action subplan (or a coastal zone
management plan under the Coastal Protection Act
1979 containing an emergency action subplan that continues
to have effect under clause 4 of Schedule 3 to the Coastal Management Act
2016).
(4)
In this section, emergency coastal
protection works means works comprising the placement of
sand, or the placing of sandbags for a period of not more than 90 days, on a
beach, or a sand dune adjacent to a beach, to mitigate the effects of coastal
hazards on land.
2.17Flexible zone provisions
(1)
A provision of an environmental planning
instrument that allows development within a zone to be consented to as if it
were in a neighbouring zone, or a similar provision, has no effect to the
extent that it applies to land to which this Chapter
applies.
(2)
To avoid doubt, subsection (1) does not apply to
a provision of another State Environment Planning Policy that allows
development within a zone to be consented to as if it were in a neighbouring
zone or a similar provision.
2.18Savings and transitional provisions
Note—
See also section 27 (Granting of development
consent relating to coastal protection works) of the Coastal Management Act
2016.
(1)
Section 2.7 of this Chapter does not apply to the
following activities (to the extent that they would otherwise comprise
development to which that section would apply)—
(a)
the carrying out of an activity for which an
approval was granted by a determining authority under Part 5 of the Act before
the commencement of this Chapter,
(b)
the carrying out of an activity after the
commencement of this Chapter, but only if—
(i)
any approval that is required for carrying out
the activity is granted by the determining authority under Part 5 of the Act
within 12 months after that commencement, and
(ii)
any environmental impact assessment of that
activity under Part 5 of the Act that is required had commenced before the
commencement of this Chapter.
(2)
In this section—
activity and approval have the same
meanings as they have in Part 5 of the Act.
Chapter 3Hazardous and offensive development
Part 3.1Preliminary
3.1Aims, objectives etc
This Chapter aims—
(a)
to amend the definitions of hazardous and
offensive industries where used in environmental planning instruments,
and
(b)
to render ineffective a provision of any
environmental planning instrument that prohibits development for the purpose
of a storage facility on the ground that the facility is hazardous or
offensive if it is not a hazardous or offensive storage establishment as
defined in this Chapter, and
(c)
to require development consent for hazardous or
offensive development proposed to be carried out in the Western Division,
and
(d)
to ensure that in determining whether a
development is a hazardous or offensive industry, any measures proposed to be
employed to reduce the impact of the development are taken into account,
and
(e)
to ensure that in considering any application to
carry out potentially hazardous or offensive development, the consent
authority has sufficient information to assess whether the development is
hazardous or offensive and to impose conditions to reduce or minimise any
adverse impact, and
(f)
to require the advertising of applications to
carry out any such development.
3.2Definitions of “potentially hazardous industry”
and “potentially offensive industry”
In this Chapter—
potentially hazardous
industry means a development for the purposes of any
industry which, if the development were to operate without employing any
measures (including, for example, isolation from existing or likely future
development on other land) to reduce or minimise its impact in the locality or
on the existing or likely future development on other land, would pose a
significant risk in relation to the locality—
(a)
to human health, life or property,
or
(b)
to the biophysical
environment,
and includes a hazardous industry and a hazardous
storage establishment.
potentially offensive
industry means a development for the purposes of an industry
which, if the development were to operate without employing any measures
(including, for example, isolation from existing or likely future development
on other land) to reduce or minimise its impact in the locality or on the
existing or likely future development on other land, would emit a polluting
discharge (including for example, noise) in a manner which would have a
significant adverse impact in the locality or on the existing or likely future
development on other land, and includes an offensive industry and an offensive
storage establishment.
3.3Other definitions
(1)
In this Chapter—
hazardous industry
means a development for the purposes of an industry which, when the
development is in operation and when all measures proposed to reduce or
minimise its impact on the locality have been employed (including, for
example, measures to isolate the development from existing or likely future
development on other land in the locality), would pose a significant risk in
relation to the locality—
(a)
to human health, life or property,
or
(b)
to the biophysical
environment.
hazardous storage
establishment means any establishment where goods, materials
or products are stored which, when in operation and when all measures proposed
to reduce or minimise its impact on the locality have been employed
(including, for example, measures to isolate the establishment from existing
or likely future development on the other land in the locality), would pose a
significant risk in relation to the locality—
(a)
to human health, life or property,
or
(b)
to the biophysical
environment.
offensive industry
means a development for the purposes of an industry which, when the
development is in operation and when all measures proposed to reduce or
minimise its impact on the locality have been employed (including, for
example, measures to isolate the development from existing or likely future
development on other land in the locality), would emit a polluting discharge
(including, for example, noise) in a manner which would have a significant
adverse impact in the locality or on the existing or likely future development
on other land in the locality.
offensive storage
establishment means any establishment where goods, materials
or products are stored which, when in operation and when all measures proposed
to reduce or minimise its impact on the locality have been employed
(including, for example, measures to isolate the establishment from existing
or likely future development on other land in the locality), would emit a
polluting discharge (including, for example, noise) in a manner which would
have a significant adverse impact in the locality or on the existing or likely
future development on other land in the locality.
the
Act means the Environmental
Planning and Assessment Act 1979.
(2)
A reference in this Chapter to circulars or
guidelines published by the Department of Planning is a reference to circulars
or guidelines so published and available for inspection by the public on
request at the offices of the Department.
3.4Land to which Chapter applies
This Chapter applies to the
State.
3.5Relationship with other environmental planning
instruments
In the event of an inconsistency between this
Chapter and another environmental planning instrument (whether made before, on
or after the date on which this Chapter takes effect) this Chapter prevails to
the extent of the inconsistency.
Part 2Hazardous or offensive development
3.6New definitions of “hazardous industry” and
“offensive industry”
In an environmental planning instrument (whether
made before, on, or after the date on which this Chapter takes effect) a
reference to—
(a)
an offensive or hazardous industry, however
defined in that instrument, is to be taken to be a reference to development
for the purposes of an industry (as defined in that instrument) that is a
hazardous industry or an offensive industry within the meaning of section 3.3,
and
(b)
an offensive industry, however defined in that
instrument, is to be taken to be a reference to development for the purposes
of an industry (as defined in that instrument) that is an offensive industry
within the meaning of section 3.3, and
(c)
a hazardous industry, however defined in that
instrument, is to be taken to be a reference to development for the purposes
of an industry (as defined in that instrument) that is a hazardous industry
within the meaning of section 3.3.
3.7Consideration of Departmental
guidelines
In determining whether a development
is—
(a)
a hazardous storage establishment, hazardous
industry or other potentially hazardous industry, or
(b)
an offensive storage establishment, offensive
industry or other potentially offensive industry,
consideration must be given to current circulars or
guidelines published by the Department of Planning relating to hazardous or
offensive development.
3.8Storage facilities
A provision of an environmental planning
instrument which prohibits the carrying out of development for the purposes
of, or purposes which include, a storage facility (however the storage
facility may be described or referred to in the instrument) on the ground that
the storage facility is offensive or hazardous has no effect unless the
storage facility is a hazardous storage establishment or an offensive storage
establishment as defined in this Chapter.
3.9Western Division—development consent
required
(1)
This section applies to development defined in
section 3.2 or 3.3 which is carried out or proposed to be carried out on land
within the Western Division.
(2)
A person may not carry out such development
except with the consent of—
(a)
the council of the area, if the land concerned is
within a local government area, or
(b)
the Minister, in any other
case.
(3)
Nothing in this section authorises the carrying
out of such development if the development is not otherwise
permitted.
(4)
In this section, Western Division has
the same meaning as in the Crown Land Management Act
2016.
Part 3Potentially hazardous or potentially offensive
development
3.10Development to which Part 3 applies
(1)
This Part applies to—
(a)
development for the purposes of a potentially
hazardous industry, and
(b)
development for the purposes of a potentially
offensive industry, and
(c)
development notified, for the purposes of this
Part, by the Director in the Gazette as being a potentially hazardous or
potentially offensive development.
(2)
This Part does not apply to development the
subject of a development application made before the date on which this
Chapter takes effect.
3.11Preparation of preliminary hazard
analysis
A person who proposes to make a development
application to carry out development for the purposes of a potentially
hazardous industry must prepare (or cause to be prepared) a preliminary hazard
analysis in accordance with the current circulars or guidelines published by
the Department of Planning and submit the analysis with the development
application.
3.12Matters for consideration by consent
authorities
In determining an application to carry out
development to which this Part applies, the consent authority must consider
(in addition to any other matters specified in the Act or in an environmental
planning instrument applying to the development)—
(a)
current circulars or guidelines published by the
Department of Planning relating to hazardous or offensive development,
and
(b)
whether any public authority should be consulted
concerning any environmental and land use safety requirements with which the
development should comply, and
(c)
in the case of development for the purpose of a
potentially hazardous industry—a preliminary hazard analysis prepared by
or on behalf of the applicant, and
(d)
any feasible alternatives to the carrying out of
the development and the reasons for choosing the development the subject of
the application (including any feasible alternatives for the location of the
development and the reasons for choosing the location the subject of the
application), and
(e)
any likely future use of the land surrounding the
development.
3.13Advertising of applications
Pursuant to section 30(4) of the Act, the
provisions of sections 84, 85, 86, 87(1) and 90 of the Act apply to and in
respect of development to which this Part applies in the same way as those
provisions apply to and in respect of designated
development.
Chapter 4Remediation of land
4.1Object of this Chapter
(1)
The object of this Chapter is to provide for a
Statewide planning approach to the remediation of contaminated
land.
(2)
In particular, this Chapter aims to promote the
remediation of contaminated land for the purpose of reducing the risk of harm
to human health or any other aspect of the environment—
(a)
by specifying when consent is required, and when
it is not required, for a remediation work, and
(b)
by specifying certain considerations that are
relevant in rezoning land and in determining development applications in
general and development applications for consent to carry out a remediation
work in particular, and
(c)
by requiring that a remediation work meet certain
standards and notification requirements.
4.2Notes
The table of contents and notes in the text of
this Chapter do not form part of this Chapter.
4.3Definitions
(1)
In this Chapter—
category 1 remediation
work is defined in section 4.8.
category 2 remediation
work is defined in section 4.11.
Cockle Creek Smelter Land
Map means the State Environmental Planning Policy No 55—Remediation
of Land—Cockle Creek Smelter Land
Map.
contaminated land
has the same meaning as it has in Part 7A of the Act.
contaminated land
planning guidelines means guidelines under section 145C of
the Act.
investigation area
means land declared to be an investigation area by a declaration in force
under Division 2 of Part 3 of the Contaminated Land
Management Act 1997.
preliminary
investigation, in relation to land, means a preliminary
investigation referred to in the contaminated land planning
guidelines.
remediation
means—
(a)
removing, dispersing, destroying, reducing,
mitigating or containing the contamination of any land, or
(b)
eliminating or reducing any hazard arising from
the contamination of any land (including by preventing the entry of persons or
animals on the land).
Note—
This definition of remediation corresponds to
parts of the definition of remediation in the Contaminated Land
Management Act 1997.
remediation order
means a remediation order made by the Environment Protection Authority and in
force under Part 3 of the Contaminated Land Management Act
1997.
remediation site
means—
(a)
land declared to be a remediation site by a
declaration in force under Division 3 of Part 3 of the Contaminated Land Management Act 1997,
or
(b)
premises—
(i)
in respect of which there is in force a notice
under section 35 of the Environmentally Hazardous
Chemicals Act 1985 requiring prescribed remedial action to
be taken, or
(ii)
that are the subject of prescribed remedial
action (whether being undertaken by the Environment Protection Authority or by
another public authority at the direction of that Authority) under section 36
of that Act.
the
Act means the Environmental
Planning and Assessment Act 1979.
unincorporated
area means such parts of the Western Division of New South
Wales as are not within a local government area.
(2)
A reference in this Chapter to a remediation work
carried out or to be carried out on any land includes a reference to a
remediation work carried out or to be carried out in, over or under the land
concerned.
4.4Land to which this Chapter applies
This Chapter applies to the whole of the
State.
4.5Maps
(1)
A reference in this Chapter to a named map
adopted by this Chapter is a reference to a map by that name—
(a)
approved by the Minister when the map is adopted,
and
(b)
as amended or replaced from time to time by maps
declared by environmental planning instruments to amend or replace that map,
and approved by the Minister when the instruments are
made.
(2)
Any 2 or more named maps may be combined into a
single map. In that case, a reference in this Chapter to any such named map is
a reference to the relevant part or aspect of the single
map.
(3)
Any such maps are to be kept and made available
for public access in accordance with arrangements approved by the
Minister.
(4)
For the purposes of this Chapter, a map may be
in, and may be kept and made available in, electronic or paper form, or
both.
4.6Contamination and remediation to be considered in
determining development application
(1)
A consent authority must not consent to the
carrying out of any development on land unless—
(a)
it has considered whether the land is
contaminated, and
(b)
if the land is contaminated, it is satisfied that
the land is suitable in its contaminated state (or will be suitable, after
remediation) for the purpose for which the development is proposed to be
carried out, and
(c)
if the land requires remediation to be made
suitable for the purpose for which the development is proposed to be carried
out, it is satisfied that the land will be remediated before the land is used
for that purpose.
(2)
Before determining an application for consent to
carry out development that would involve a change of use on any of the land
specified in subsection (4), the consent authority must consider a report
specifying the findings of a preliminary investigation of the land concerned
carried out in accordance with the contaminated land planning
guidelines.
(3)
The applicant for development consent must carry
out the investigation required by subsection (2) and must provide a report on
it to the consent authority. The consent authority may require the applicant
to carry out, and provide a report on, a detailed investigation (as referred
to in the contaminated land planning guidelines) if it considers that the
findings of the preliminary investigation warrant such an
investigation.
(4)
The land concerned is—
(a)
land that is within an investigation
area,
(b)
land on which development for a purpose referred
to in Table 1 to the contaminated land planning guidelines is being, or is
known to have been, carried out,
(c)
to the extent to which it is proposed to carry
out development on it for residential, educational, recreational or child care
purposes, or for the purposes of a hospital—land—
(i)
in relation to which there is no knowledge (or
incomplete knowledge) as to whether development for a purpose referred to in
Table 1 to the contaminated land planning guidelines has been carried out,
and
(ii)
on which it would have been lawful to carry out
such development during any period in respect of which there is no knowledge
(or incomplete knowledge).
4.7Remediation work permissible
(1)
A person may carry out a remediation work in
accordance with this Chapter, despite any provision to the contrary in an
environmental planning instrument, except as provided by section
4.16(3).
(2)
A person must not carry out a category 1
remediation work except with the consent of the consent
authority.
(3)
A person may carry out a category 2 remediation
work without the consent of the consent authority.
(4)
A person who carries out a remediation work must
ensure that section 4.13 (if it applies) and sections 4.14 and 4.15 are
complied with in relation to the work.
Note—
See section 4.16 for the relationship of this
Chapter to other environmental planning instruments.
4.8Category 1 remediation work: work needing
consent
For the purposes of this Chapter, a category 1
remediation work is a remediation work (not being a work to which section
4.11(b) applies) that is—
(a)
designated development, or
(b)
carried out or to be carried out on land declared
to be a critical habitat, or
(c)
likely to have a significant effect on a critical
habitat or a threatened species, population or ecological community,
or
(d)
development for which another State environmental
planning policy or a regional environmental plan requires development consent,
or
(e)
carried out or to be carried out in an area or
zone to which any classifications to the following effect apply under an
environmental planning instrument—
(i)
coastal protection,
(ii)
conservation or heritage
conservation,
(iii)
habitat area, habitat protection area, habitat or
wildlife corridor,
(iv)
environment protection,
(v)
escarpment, escarpment protection or escarpment
preservation,
(vi)
floodway,
(vii)
littoral rainforest,
(viii)
nature reserve,
(ix)
scenic area or scenic
protection,
(x)
wetland, or
(f)
carried out or to be carried out on any land in a
manner that does not comply with a policy made under the contaminated land
planning guidelines by the council for any local government area in which the
land is situated (or if the land is within the unincorporated area, the
Minister).
Note—
See section 5A of the Environmental Planning and Assessment Act
1979 for the factors to be taken into account in assessing
whether there is likely to be a significant effect as referred to in paragraph
(c) above. The terms used in that paragraph are defined in that Act by
reference to both the Threatened Species Conservation
Act 1995 and the Fisheries
Management Act 1994.
4.9Consent authority in relation to remediation
works
(1)
The consent authority in relation to a
development application for consent to carry out a remediation work
is—
(a)
the person or authority that, in accordance with
a provision made by an environmental planning instrument that applies to the
land, is the consent authority for the development, or
(b)
in default of any such provision—
(i)
the council for the local government area in
which the land is situated, or
(ii)
the Minister, if the land is within the
unincorporated area.
4.10Refusal of consent to category 1 remediation
work
(1)
The consent authority must not refuse development
consent for a category 1 remediation work unless the authority is satisfied
that there would be a more significant risk of harm to human health or some
other aspect of the environment from the carrying out of the work than there
would be from the use of the land concerned (in the absence of the work) for
any purpose for which it may lawfully be used.
(2)
Nothing in this section prevents the consent
authority from refusing consent to a development application if—
(a)
by operation of an environmental planning
instrument or section 79B(3) of the Act, the development application may not
be determined by the granting of consent without the concurrence of a
specified person, and
(b)
that concurrence is not
given.
4.11Category 2 remediation work: work not needing
consent
For the purposes of this Chapter, a category 2
remediation work is—
(a)
a remediation work that is not a work of a kind
described in section 4.8(a)–(f), or
(b)
a remediation work (whether or not it is a work
of a kind described in section 4.8(a)–(f)) that—
(i)
by the terms of a remediation order, is required
to be commenced before the expiry of the usual period under the Contaminated Land Management Act 1997
for lodgment of an appeal against the order, or
Note—
The usual period for lodgment of an appeal is 21
days or a period prescribed instead by regulations made under the Contaminated Land Management Act
1997.
(ii)
may be carried out without consent under another
State environmental planning policy or a regional environmental plan (as
referred to in section 4.16(4)), or
(iii)
is carried out or to be carried out by or on
behalf of the Director-General of the Department of Agriculture on land
contaminated by the use of a cattle dip under a program implemented in
accordance with the recommendations or advice of the Board of Tick Control
under Part 2 of the Stock Diseases Act
1923, or
(iv)
is carried out or to be carried out under the
Public Land Remediation Program administered by the Broken Hill Environmental
Lead Centre.
4.12Remediation work that is ancillary to other
development
(1)
A remediation work that would of itself be a
category 2 remediation work but which is ancillary to designated development
that requires development consent may, as an applicant chooses—
(a)
be made part of the subject of the development
application for the designated development instead of being made the subject
of a separate development application, or
(b)
be treated as a category 2 remediation
work.
(2)
However, a category 1 remediation work must be
treated as such even if it is ancillary to development that may be carried out
without consent.
(3)
A remediation work that would of itself be a
category 1 remediation work and constitute designated development does not,
just because it is ancillary to other development—
(a)
render the latter development designated
development, or
(b)
cause that development to become a development
for which development consent is required.
4.13Prior notice of category 2 remediation
work
(1)
A person who proposes to carry out a category 2
remediation work on any land must give notice of the proposed work to the
council for the local government area in which the land is situated (or, if
the land is within the unincorporated area, to the
Minister).
(2)
The notice must be given—
(a)
at least 30 days before the commencement of the
work, except in the case of a work referred to in section 4.11(b),
and
(b)
in the case of a work referred to in section
4.11(b)—no later than the day before the commencement of the
work.
(3)
The notice must—
(a)
be in writing, and
(b)
provide the name, address and telephone number of
the person who has the duty of ensuring that the notice is given,
and
(c)
briefly describe the remediation work,
and
(d)
show why the person considers that the work is
category 2 remediation work by reference to sections 4.8, 4.11 and (if it
applies) 4.12(1), and
(e)
specify, by reference to its property description
and street address (if any), the land on which the work is to be carried out,
and
(f)
provide a map of the location of the land,
and
(g)
provide estimates of the dates for the
commencement and completion of the work.
4.14Guidelines and notices: all remediation
work
(1)
All remediation work must, in addition to
complying with any requirement under the Act or any other law, be carried out
in accordance with—
(a)
the contaminated land planning guidelines,
and
(b)
the guidelines (if any) in force under the
Contaminated Land Management Act 1997,
and
(c)
in the case of a category 1 remediation
work—a plan of remediation, as approved by the consent authority,
prepared in accordance with the contaminated land planning
guidelines.
(2)
A notice of completion of remediation work on any
land must be given to the council for the local government area in which the
land is situated (or, if the land is within the unincorporated area, to the
Minister).
(3)
The notice is to be given within 30 days after
the completion of the work.
(4)
A copy of the notice must also be given within
the same period to the consent authority, if consent was required for the
remediation work and the consent authority is not one of the authorities
referred to in subsection (2).
4.15Notice of completion of remediation
work
The notice required by section 4.14(2)
must—
(a)
be in writing prepared and signed by the person
who carried out the work, and
(b)
provide the person’s name, address and
business telephone number, and
(c)
provide details of the person’s
qualifications to carry out the work, and
(d)
specify, by reference to its property description
and street address (if any), the land on which the work was carried out,
and
(e)
provide a map of the location of the land,
and
(f)
state when the work was completed,
and
(g)
specify the uses of the land, and the substances,
that contaminated it in such a way as to present a risk of harm to human
health or some other aspect of the environment, and
(h)
specify the uses of the land immediately before
the work started, and
(i)
briefly describe the method of remediation used
in the work, and
(j)
specify the guidelines that were complied with in
the work, and
(k)
specify the standard of remediation achieved (in
the light of the use proposed for the land), and
(l)
show in what manner the work (if a category 1
remediation work) complied with the conditions of the relevant development
consent, and
(m)
state what action must be maintained in relation
to the land after the completion of the remediation work if the standard of
remediation achieved is to be maintained.
Note—
A site audit statement (within the meaning of
Part 4 of the Contaminated Land Management Act
1997) may be given in partial compliance with this
requirement.
4.16Relationship to other environmental planning
instruments
(1)
If this Chapter is inconsistent with another
State environmental planning policy, a regional environmental plan or a local
environmental plan (whether made before or after this Chapter), this Chapter
prevails, except as provided by this section and section 36(4) of the
Act.
(2)
If a provision of another State environmental
planning policy or of a regional environmental plan, whether made before or
after this Chapter, requires development consent for a remediation work, a
provision of this Chapter that permits the carrying out of the work without
development consent does not prevail over that
provision.
(3)
If a provision of another State environmental
planning policy or of a regional environmental plan, whether made before or
after this Chapter, permits a remediation work without development consent, a
requirement in this Chapter to obtain development consent to carry out the
work does not prevail over that provision.
(4)
Clauses 4.13–4.15 apply to any remediation
work according to the category of the work under this Chapter even if another
State environmental planning policy or a regional environmental plan also
applies to the work.
4.17Application of SEPP to certain development at Barangaroo
subject to Part 3A approvals
(1)
This section applies to development that is the
subject of the following project approvals under Part 3A of the
Act—
(a)
project application number 10_0023, approved by
the Minister for Planning on 2 November 2010,
(b)
project application number 10_0047, approved by
the Minister for Planning on 8 November 2010.
(2)
To avoid doubt, the following provisions of this
Chapter do not apply to the carrying out of development to which this section
applies—
(a)
sections 4.7(4) and 4.14,
(b)
any other provision of this Chapter that
prohibits or restricts the carrying out of that
development.
4.18Clean-up notice remediation—special
provision
(1)
This Chapter does not apply to or in respect of
anything done for the purpose of complying with a clean-up notice, except as
provided by this section.
(2)
Any development or activity carried out for the
purpose of complying with a clean-up notice—
(a)
may be carried out without development consent,
and
(b)
to the extent that it involves carrying out any
remediation work, must be carried out in accordance with section 4.14(1)
(paragraph (c) excepted).
(3)
In this section, clean-up notice
means—
(a)
a notice given under section 91 of the Protection of the Environment Operations Act
1997 that is specified in Schedule 2,
or
(b)
if a notice so specified has been varied under
section 110 of that Act, the notice as varied for the time
being.
(4)
If this section is inconsistent with another
State environmental planning policy, a regional environmental plan or a local
environmental plan (whether made before or after this section), this section
prevails, subject to section 36(4) of the Act.
4.19Perpetual care arrangements required for development at
former zinc and lead smelter and fertiliser production site at Boolaroo, Lake
Macquarie
(1)Objective
The objective of this section is to ensure that
adequate arrangements are in place to minimise and manage the risks associated
with the containment cell on the site of the former Cockle Creek zinc and lead
smelter and Incitec fertiliser factory (and other land within that site that
has not been fully remediated) so as to protect human health and the
environment in perpetuity.
(2)Land application
This section applies to the land identified as
“former Cockle Creek Smelter and Incitec site” on the Cockle Creek Smelter
Land Map (the former
Cockle Creek Smelter and Incitec
site).
(3)Adequate arrangements for perpetual care
required
A consent authority must not consent to a
development application to carry out development on the former Cockle Creek
Smelter and Incitec site unless the Planning Secretary has certified to the
consent authority that, in the Planning Secretary’s opinion, adequate
arrangements are in place for the perpetual care of the
following—
(a)
the containment cell at the former Cockle Creek
Smelter and Incitec site and its associated
infrastructure,
(b)
the land on which that cell and infrastructure is
located,
(c)
land on the former Cockle Creek Smelter and
Incitec site that has not been remediated,
(d)
the land on the former Cockle Creek Smelter and
Incitec site that immediately before the commencement of this section was
within Zone E2 Environmental Conservation under Lake Macquarie Local Environmental Plan
2014.
(4)Meaning of “perpetual
care”
In this section, perpetual care in
relation to the containment cell, infrastructure and land concerned includes
the following activities—
(a)
the on-going implementation of long term
environmental management plans,
(b)
the on-going monitoring, maintenance and repair
of the containment cell and associated infrastructure,
(c)
the replacement, from time to time, of part or
all of that containment cell and that associated infrastructure, including as
a result of a catastrophic event.
(5)Matters that Planning Secretary may have regard
to
In forming an opinion as to whether the adequate
arrangements referred to in subsection (3) are in place, the Planning
Secretary may have regard to whether any public positive covenants or other
instruments or any adequate financial arrangements are in place to sustain the
perpetual care concerned.
(6)Exemption from requirement to obtain Planning
Secretary’s certificate
Subsection (3) does not apply to a development
application only for any of the following purposes—
(a)
a subdivision creating or widening a public road
or a drainage reserve,
(b)
road works or the construction of public utility
infrastructure,
(c)
remediation or environmental protection works
(within the meaning of the standard instrument for a local environmental plan
prescribed by the Standard Instrument (Local
Environmental Plans) Order
2006).
(7)Duration of certificate
A certificate given by the Planning Secretary
under this section remains in force until it is
withdrawn.
(8)Withdrawal of certificate
The Planning Secretary may, by notice in writing,
withdraw a certificate that has been given to a consent
authority.
(9)Certificate effective for different
development
For the avoidance of doubt, a new certificate by
the Planning Secretary under this section is not required for each separate
development application (including development applications by different
persons relating to the carrying out of different
development).
(10)Transitional
This section extends to a development application
that has been made, but not finally determined, before the commencement of
this section.
Schedule 1Coastal
lakes
section 2.2(1), definition of
“coastal lake”
Sensitive
coastal lakes
Bondi Lagoon (Lake)
Bournda Lagoon and Sandy Beach
Creek
Durras Lake
Lake Arragan
Lake Brou (Brou Lake)
Lake Brunderee
Lake Hiawatha
Lake Minnie Water
Lake Tarourga
Lake Wollumboola
Meroo Lake
Nadgee Lake
Nargal Lake
Nelson Lagoon
Saltwater Lake
Termeil Lake
Ti Tree (Taylors) Lake
Other coastal lakes
Avoca Lake
Back Lake/Lagoon
Baragoot Lake
Bellambi Lagoon
Bingie Lagoon (Kellys Lake)
Bullengella Lake
Bunga Lagoon
Burrill Lake
Candlagan Creek and Lagoon
Cobaki-Terranora Broadwater
Cockrone Lake
Coila Lake
Congo Creek and Lagoon
Corindi (Pipeclay) Lake
Corunna Lake
Cudgen Lake
Curalo Lagoon
Curl Curl Lagoon
Cuttagee Lake
Dalhousie Creek and Lagoon
Dee Why Lagoon
Deep Creek and Lagoon
Gogleys Lagoon
Goolawah Lagoon
Hearns Lake
Kianga Lake
Killalea Lagoon
Kioloa Lagoon
Lake Ainsworth
Lake Cakora
Lake Cathie
Lake Conjola (includes Berringer)
Lake Illawarra
Lake Innes
Lake Macquarie
Lake Mummuga (Dalmeny)
Limpid (Brush) Lagoon
Little Lake (Narooma)
Little Lake (near Wallaga)
Long Swamp
Manly Lagoon
Merimbula Lake
Meringo Creek and Lagoon
Middle (Tanja) Lagoon
Mullimburra Lagoon
Murrah Lagoon
Myall Lakes
Nangudga Lake
Narrabeen Lagoon
Narrawallee Inlet
Oyster Creek and Lagoon (includes McGraths
Creek)
Pambula Inlet/Lake
Queens Lake
Redhead Lagoon
Saltwater Lagoon
Smiths Lake
St Georges Basin
Swan Lake
Tabourie Lake
Terrigal Lagoon
The Broadwater (Clarence River)
Tilba Tilba Lake
Tuggerah Lake (includes Lakes Budgewoi and
Munmorah)
Tuross Lake
Wagonga Inlet
Wallaga Lake
Wallagoot Lake
Wallis Lake
Wamberal Lagoon
Wapengo Lagoon
Watsons Taylor Lake
Werri Lagoon
Willinga Lake
Wonboyn Lake
Woolgoolga Lake
Wooloweyah Lagoon
Schedule 2Specified
clean-up notices
section 4.18
Notice No 1030236 dated 26 September 2003 and
addressed to Orica Australia Pty Ltd
Schedule 3
sch 3: Rep 2021
(730), Sch 3.
Historical notes
Table of amending instruments
State Environmental Planning
Policy (Resilience and Hazards) 2021 (730). LW 2.12.2021.
Date of commencement, 1.3.2022, sec 2. This Policy has been amended by this
Policy, Sch 3, sec 6.
Table of amendments
Sch 3
Rep 2021 (730), Sch
3.