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2.2 Development applications and consents

2.2.1	Overview
2.2.2	When is a development consent required?
2.2.3	How is a development application made?
2.2.4	Categories of development
2.2.5	Environmental impact assessment
2.2.6	How is a development application considered?
2.2.7	Post-consent provisions
2.2.8	Appeals

2.2.5 Environmental impact assessment

Environment impact assessment (EIA) is a general term which refers to the process of assessing the potential impacts of a proposed development or activity.

Most development applications must be accompanied by some form of EIA to enable the decision-maker to understand the likely impacts of the proposal before deciding whether to grant consent or not. The assessment process should also encourage the applicant and the decision-maker to consider what measures can be adopted to minimise the impact of a proposal.

2.2.5.1 Statement of environmental effects

All development applications must be accompanied by a statement of environmental effects ( SEE ) (unless the development is designated, in which case an EIS is required: see para below).1

The SEE may be prepared by the applicant or by a consulting acting on behalf of the applicant.

The SEE must identify the environmental impacts of the development, and the steps which will be taken to protect the environment or reduce the harm.2

2.2.5.2 Environmental impact statements (EIS)

For Part 4 developments under the EPA Act, only development which falls within the category of designated development requires an environmental impact statement (EIS).3 The EIS must accompany the DA.4 The EIS can be prepared by the applicant, but it is usually a very complex document which is prepared by a consultant on behalf of the applicant.

An EIS can also be required for a Part 5 activity (see below), or for a Part 3A Major project (see Fact Sheet 2.3 on Part 3A projects).

An EIS should give a detailed analysis of all potential areas of concern in relation to the development. It should be written in easy to understand language and contain material which would alert lay people and specialists to the problems inherent in carrying out the activity.5

Schedule 2 of the EPA Regulations 2000 set out the matters which an EIS must address. This includes any guidelines issued by the Director-General of Planning, a description of the measures proposed to mitigate the effect on the environment, and a justification for the project which addresses the principles of ecologically sustainable development.6

Failure to carry out an EIS if one is required under the EPA Act could invalidate any subsequent consent if the consent is challenged in judicial review proceedings: see below.

2.2.5.3 When is a Species Impact Statement required?

If a development is on land containing critical habitat or is likely significantly affect threatened species, populations or ecological communities, then the development application must be accompanied by a species impact statement.7

In deciding whether there is likely to be a significant impact on threatened species, a consent authority must apply the "7-part test" set out in section 5A of the EPA Act (formerly the "8-part test"). This includes factors such as whether the action is likely to place a viable local population of the species at risk of extinction, and whether the action is likely to result in the fragmentation or isolation of habitat.

Similarly, an SIS must be prepared if there is likely to be a significant impact on threatened fish or marine vegetation protected under the Fisheries Management Act 1994.8

2.2.5.3.1 Biodiversity certification

In October 2005, new provisions came into force under the TSC Act (Div 5, s 126G - 126N) allowing the Environment Minister to confer biodiversity certification on environmental planning.

There are two types of biodiversity certification:

• Certification of EPIs (LEPs and SEPPs) (s 126G - N)(described below), and
• Certification of the Native Vegetation Reform Package (s 126B - F) (see Fact Sheet 5.3 Clearing Vegetation, section 2.4.4).

The effect of biodiversity certification is that developments will not need to have a species impact statement. Under the biodiversity certification provisions, any development for which development consent is required (under EPA Act Part 4), or a Part 5 activity, is automatically assumed not to have a significant impact on threatened species, populations or ecological communities, thereby avoiding the need for a species impact statement (s 126I(1), (2)).

For more information on biodiversity certification, see Fact Sheet 6.1 on Threatened Species.

2.2.5.3.2 Biobanking statements

In 2008, the NSW Government introduced a new scheme to protect threatened species known as the Biobanking Scheme. The Scheme was created by inserting a new Part 7A (Biodiversity banking) into the Threatened Species Conservation Act 1995 which came into force on 4 December 2006.

However, in practice, the Biobanking Scheme did not commence operation until 11 July 2008 when the supporting regulations and methodologies were gazetted ( TSC Act, s 127B(9)).

Participation in the Scheme is voluntary. A developer who obtains a biobanking statement will not need to carry out a species impact statement, as the development will then be "deemed" not to significantly affect threatened species ( TSC Act, s 127ZO, 127ZP).

For more information on biobanking, see Fact Sheet 6.1 on Threatened Species.

2.2.5.3.3 Public notification requirements

A development application which is accompanied by a species impact statement is declared to be "advertised development" and must therefore be advertised in accordance with the requirements for advertised development (see paragraph 4.4 above)9

2.2.5.3.4 Concurrence of Director-General or Environment Minister

DAs which are likely to significantly affect threatened species cannot be approved without the concurrence (agreement) of the Director-General of National Parks and Wildlife, or in some cases, the Environment Minister (unless a biobanking statement has been issued).10

In deciding whether or not to grant concurrence, the Director-General or Environment Minister must take a range of factors into account, including any species impact statement, any public submissions, and the principles of ecologically sustainable development.11

The Director-General or Environment Minister has the power to either approve or refuse the DA, or to impose additional conditions on the development concerning the protection of threatened species.12

2.2.5.4 Part 5 activities and environmental assessment

Certain developments, such as the construction of roads or electricity infrastructure by public authorities, and some activities, such as mining exploration, do not require development consent, and thus the environmental impacts are not assessed under Part 4 of the EPA Act. For this reason, Part 5 of the EPA Act contains a "safety-net" which is a separate environmental assessment procedure which applies to these types of developments and activities.

Under Part 5, the Minister or public authority which is responsible for deciding whether to approve or proceed with an activity (called a "determining authority") must examine and take into account to the fullest extent possible all matters which are likely to affect the environment if the activity goes ahead.13 For example, the Minister for Primary Industries is responsible granting for exploration licences and assessment leases for mining operations, and is therefore the determining authority for these activities. The Minister must therefore ensure that the environmental impacts of the exploration have been taken into account before granting an exploration title.

2.2.5.4.1 Review of environmental factors

A determining authority usually decides whether to require a full EIS by considering a preliminary environmental assessment, called a "Review of Environmental Factors" ( REF ). An REF has no statutory basis, but is required as part of the standard practice of the Department of Planning and other public authorities which are bound by Part 5.

2.2.5.4.2 Part 5 - Environmental impact statements

If the activity is likely to have a significant effect on the environment, an EIS must be prepared and placed on public exhibition for at least 30 days, during which time the public can make submissions.14

A copy of the EIS and any submissions are forwarded to the Director-General of Planning, who then reports to the determining authority.15

If the activity is on land that is critical habitat or is likely to significantly affect threatened species, populations or ecological communities or their habitats, then a species impact statement may also be required.16

After considering the environmental impacts, the determining authority can then either approve or disapprove the activity, or, if the determining authority is also the proponent, they can decide to carry out the activity, modify it, or refrain from doing it.17

1. EPA Regulation 2000, cl 50, Sch 1, Part 2 (1)(c).
2. EPA Regulation 2000, cl 50, Sch 1, Part 2(4)(a) - (d).
3. EPA Regulation 2000, cl 50, Sch 1, Part 2 (1)(e).
4. EPA Act, s 78A(8)(a).
5. Prineas v Forestry Commission of NSW & Ors (1983) 49 LGRA 402.
6. EPA Regulation 2000, cl 72, Sch 2.
7. EPA Act, s 78A(8)(b).
8. EPA Act, s 5C.
9. EPA Regulation 2000, cl 5(1)(c).
10. EPA Act, s 79B(3).
11. EPA Act, s 79B(5).
12. EPA Act, s 79B(8), (9).
13. EPA Act, s 111.
14. EPA Act, s 112, 113.
15. EPA Act, s 112(2), 113(5).
16. EPA Act, s 112(1B).
17. EPA Act, s 112(4).