Please note that planning law in New South Wales is in a period of transition. Legislation has been passed that will amend the law with regards to Part 3A. EDO NSW is currently updating this fact sheet and we will make it available as soon as possible after the new provisions come into force.

If you have any queries regarding the current state of planning law, please contact our Environmental Law Advice Line anytime between 2:30 PM-5:00 PM from Monday-Thursday on (02) 9262-6989 (Sydney Office) and 9:00am-5:00pm Monday to Friday (Northern Rivers Office)

2.3.3 Critical infrastructure projects

If a project has been declared as a Part 3A project, the Minister can make an additional declaration that the project is also a “critical infrastructure project” if the Minister is of the opinion that the project is essential for the State for economic, environmental or social reasons.1

This can be done by either listing the development in Schedule 5 of SEPP (Major Projects) 2005, or by the Minister making a Ministerial Order.

Projects which have been declared to be critical infrastructure projects include:2

• the Kurnell Desalination Plant
• the Royal North Shore Hospital redevelopment site
• the Queensland – Hunter Gas Pipeline, and
• Tillegra Dam.

SEPPs do not apply to critical infrastructure projects unless the SEPP specifically states that it does.3

2.3.3.1 Land owner consent not required

Unlike most other forms of development, an application for a critical infrastructure projects can be lodged without the consent of landowners.4

2.3.3.2 No appeal against critical infrastructure projects

In relation to appeal rights, the effect of a project being declared as “critical infrastructure” is to:

• exclude all merit appeals (Class 1) (by either the proponent or by objectors) against any decision regarding of the project,5 and
• exclude anyone from taking judicial review proceedings (Class 4) in the Land and Environment Court to challenge the declaration, to remedy or restrain a breach of the EPA Act in relation to the way the decision was made, unless the proceedings are brought, or approved by, the Planning Minister.6

2.3.3.3 Exemption from other environmental laws

Once a critical infrastructure project has been declared, there is very little that another public authority or the public can do to ensure that it complies with environmental laws.

Where critical infrastructure is concerned, only the Planning Minister or the Director-General of Planning can give an administrative order relating to the enforcement of the EPA Act or the Part 3A planning approval.7

Critical infrastructure projects are also exempt from the usual range of administrative orders which can be used by public authorities to enforce other environmental laws. For example, interim protection orders and stop work orders to protect threatened species, and environment protection notices to reduce pollution, cannot be issued against a critical infrastructure project.8

The EPA Act also excludes anyone from taking enforcement proceedings in the Land and Environment Court (Class 4 proceedings) to enforce the conditions of a critical infrastructure approval, or to remedy or restrain a breach of the EPA Act or any other environmental law in relation to the project, unless the proceedings are brought or approved by the Planning Minister.9

1. EPA Act, s 75C.
2. SEPP (Major Projects) 2005, cl 6, 6A; Sch 5.
3. EPA Act, s 75R(2)(b).
4. EPA Regulation, cl 8F(1)(b).
5. EPA Act, s 75K, 75L and 75Q.
6. EPA Act, s 75T(2).
7. EPA Act, s 75R(5), Part 6, Div 2A, s 121A – AS; and EPA Regulation, cl 8I.
8. EPA Act, s 75U(3).
9. EPA Act, s 75T(2).

This site was last updated Thursday 17 May, 2012
EDO NSW
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