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Last updated: 24 January 2009

2.3.4 How is a Part 3A project processed?

4.1 Project application

The website of the NSW Department of Planning allows the public to track the progress of Part 3A project approvals. The Department's Major Projects tracking system allows you to:
  • Find out information on major projects which are before the Department
  • Make submissions on projects which are on exhibition
  • Find out about determinations on projects by the Department or Minister
Department's Major Projects Tracking system http://majorprojects.planning.nsw.gov.au/page/

To begin the process, the developer (proponent) lodges an application (project application) with the Director-General of Planning.1 Alternatively, the process can being with the proponent lodging a concept plan: see para 3.2 below.

The Planning Minister is the consent authority for all Part 3A projects.2

4.1.1 Landowner consent

Before the Minister decides on the application, the proponent must have obtained the consent of those landowners on whose land the development will take place, unless there is an exception.3 Exceptions include applications by public authorities, or applications which relate to critical infrastructure projects, mining projects or linear infrastructure projects (eg train lines, power lines), although notice may still need to be given.4

4.2 Concept plans

The Planning Minister can allow, or can require, a proponent (developer) to submit a concept plan before lodging an application for a Part 3A project.5

The purpose of a concept plan is to give a broad overview of the project by outlining what the project will entail, and whether it will be built in stages. A detailed description of the project is not required. A proponent can lodge a combined concept plan and an application for approval to carry out part of a project at the same time.6

The main advantage for a proponent of lodging a concept plan is that the Planning Minister can either approve the development outright, or alternatively can more closely tailor the rest of the assessment process to suit the project.7

Once a concept plan is lodged, the usual Part 3A process is followed requiring environmental assessment, an independent hearing and assessment panels (if the Minister requires one), public consultation and an environmental assessment report from the Director-General of Planning.8

4.2.1 Are further approvals required?

This is up to the Planning Minister. In deciding whether or not to approve a concept plan, the Planning Minister can require the proponent to do further work, such as requiring further environmental assessment (eg calling for a design competition).9 Or the Planning Minister can require the proponent to obtain further approvals under Part 4 or Part 5 of the EPA Act (although the Planning Minister can still control this process too).10

Alternatively, the Planning Minister can approve the project outright, without requiring any further environmental assessment.11

Case Study: Challenges to concept plan approvals

Walker v the Minister for Planning & Ors [2007] NSWLEC 741 (Sandon Point)

The proponents, developers Stockland and Anglican Retirement Villages, applied to build approximately 180 residential dwelling allotments, 3 super-lots for future apartment or townhouse development, up to 250 seniors living units and a residential aged care facility on open space land which was partly declared an Aboriginal Place under the National Parks and Wildlife Act 1979, contained endangered ecological communities and significant bird habitat, and was prone to flooding. T he Planning Minister eventually approved the concept plan subject to some conditions.

The Environmental Defender's Office assisted Jill Walker in a successful Land and Environment Court challenge to the Concept Plan approval. Briscoe J held that when granting concept plan approval, the Minister had failed to consider the principles of ecologically sustainable development (“ESD”) because he had not considered whether the flood risk on the site would be exacerbated by climate change, had not obtained up-to-date mapping of endangered ecological communities, and had not carried out further investigations into a possible “women's area” on the site. ESD is described in s 6(2) of the Protection of the Environment Administration Act 1979 and includes the ‘precautionary principle'. The precautionary principle states that decision-makers should make an assessment of the risk-weighted consequences of any action before deciding to proceed with the action.

Further, Justice Biscoe held that under cl 8B of the Environmental Planning and Assessment Regulation, the Director-General was obliged to include in his report those aspects of the public interest which he considered to be relevant. It has been established in previous cases that ESD is an aspect of the public interest, therefore the Director-

General was obliged to consider ESD in deciding what matters needed to be addressed in his report. In this case the Director-General had apparently failed to consider whether the climate-change related flood risk was a matter which needed to be addressed in his report.

Subsequently, in Minister for Planning v Walker [2008] NSWCA 224, the Court of Appeal (Justice Hodgson) ruled that, although the planning minister must make decisions in the public interest, not having regard to ESD principles does not necessarily constitute a breach of that obligation.

An application for a special leave to appeal to the High Court has been made (Feb 2009).

4.3 Environmental assessment

The environmental assessment requirements for major projects and critical infrastructure are far more discretionary than the requirements for developments under Part 4 developments and Part 5 activities under the EPA Act.

Once a project falls within Part 3A, Parts 4 and 5 of the EPA Act no longer apply (unless Part 3A specifically says it does).12

4.3.1 Director-General's sets assessment requirements

The Director-General of Planning has a great deal of discretion in deciding what form of environmental assessment will be required for a Part 3A project, and what issues the assessment will cover.

Once the proponent lodges a project application, the Director-General must prepare the environmental assessment requirements for the individual project, which are then given to the proponent.13 In preparing the environmental assessment requirements, the Director-General must consult with relevant public authorities such as DECCW and the local council in the area where the project to take place, to ensure that they key issues are assessed.14

The Director-General can require the proponent to include in an environmental assessment a “Statement of Commitments” that the proponent is prepared to make to mitigate or manage the environmental impacts of the project.15

4.3.2 Review by Planning Assessment Commission

Following amendments made to the EPA Act in 2008,16 the Planning Minister can now choose to refer any project or aspect of a project application or an application for a concept plan to the Planning Assessment Commission (formerly called an independent hearing and assessment panel under s 75G: since repealed).17

If the Planning Minister is also the proponent of the project, then the project application must be referred to the Planning Assessment Commission.18

4.4 Public consultation and submissions

Once the proponent has completed the environmental assessment, this is given to the Director-General.19

The Director-General must make the environmental assessment report prepared by the proponent publicly available for at least 30 days.20 During that period, any person can make a written submission to the Director-General about the project.21

In response to the issues raised in the public submissions: the Director-General can require the proponent to submit:22

  • a response to any of the issues
  • a report outlining any proposed changes to the project to address those issues, and
  • a revised statement of commitments.
EDO Bulletin lists new Part 3A major project applications weekly

The NSW Department of Planning lists all new applications for Part 3A major projects and concept plans on its website which are open for public comment. Each week, the EDO publishes an email bulletin which includes a list of the new projects which have been listed for public comment during the past week.
Public access to documents

In addition to the environmental assessment done by the proponent, the Director-General must make the following documents publicly available:23

  • All declarations that Part 3A applies to a particular development
  • All applications to carry out projects
  • The Director-General's environmental assessment requirements
  • The Director-General's environmental assessment reports given to the Minister
  • All responses to submissions, including any proposed changes to projects
  • All reports by the Planning Assessment Commission on Part 3A projects
  • All approvals to carry out Part 3A projects
  • All applications for approval of concept plans, and
  • Any requests for modifications to approvals.

These documents must be made available on the Planning Department's website http://majorprojects.planning.nsw.gov.au/page/.24

4.5 Planning Minister decides whether to approve project

After the public consultation process is concluded, the Director-General must then give an environmental assessment report to the Planning Minister which includes the proponent's environmental assessment and any proposed changes to it, a copy of any report by the Planning Assessment Commission, and any comments by the Director-General or other public authorities.25

The Planning Minister must then decide approve or disapprove the carrying out of the project.26 The Minister can approve the project with modifications, and can impose a condition of approval that the proponent complies with its statement of commitments.27

4.5.1 Minister not bound by LEPs and REPs

In deciding whether to approve a Part 3A project, the Minister is not bound by the provisions of any local environmental plans (LEPs) or regional environmental plans (REPs): but see the exceptions below. However the Planning Minister can choose to take them into account in deciding whether to approve a project, and the Director-General must identify them in the Director-General's report to the Minister.28

Case Study: Minister's discretion to approve Part 3A projects

Drake-Brockman v Minister for Planning [2007] NSWLEC 490

The Environmental Defender's Office commenced proceedings in the Land and Environment Court on behalf of Mathew Drake-Brockman, challenging the validity of the approval for re-development of the Carlton United Brewery site on Sydney's Broadway for 1600 residential apartments, commercial offices and retail premises.

The case challenged the application of Part 3A of the Environmental Planning and Assessment Act 1979 (the Act), which grants the Minister for Planning broad discretion to approve major projects of State significance. It was argued that the Minister failed to properly consider the principles of Ecological Sustainable Development when approving the site. Judgment was handed down on 13 August 2007 in favour of the Minister for Planning.

Justice Jagot dismissed the appeal on all three grounds:

  1. the applicant had not lodged a valid concept plan at the time the Director-General's (D-G) Environmental Assessment Requirements (EARs) were issued, and thus the EARs were not validly issued; and b) the D-G did not properly consult with the relevan government agencies in relation to the EARs, as required under s 75F(4) of the Act – Her Honour held that the Act did not require the applicant to submit any formal application form in order to initiate the application process. With regard to s 75F(4), it was held that consultation which had occurred via the stakeholder reference panel constituted effective consultation for the purposes of the section of the Act.
  2. the D-G failed to include in his EAR a statement relating to compliance with the EARs – Her Honour found that the whole of the EAR could be the “required” statement and that statements made throughout the report constituted statements relating to compliance with the EARs under Part 3A, and therefore that the Act had been complied with.
  3. failure to consider the principles of ecologically sustainable development (ESD) – Her Honour found that the there were indications that the Minister had considered ESD by rejecting a public car park on the site and making it necessary for the proponent to comply with SEPP (Building Sustainable Index: BASIX) 2004 and green star office requirements.
Drake-Brockman has appealed to the NSW Supreme Court, Court of Appeal. There is no decision at this stage (January 2009).

4.5.2 Prohibited development

Where an LEP or REP prohibits the type of development being applied for under Part 3A, the Planning Minister can only approve the development if the project application is also accompanied by a concept plan.29

However the Minister cannot approve a Part 3A project which is located within an environmentally sensitive area of State significance or a sensitive coastal location if the development would have been prohibited under the relevant LEP or REP.30

4.5.3 SEPPs apply

SEPPs continue to apply to major projects.31 However, if it is a critical infrastructure project, a SEPP will only apply if it expressly states that it applies to the particular project.32

4.5.4 Threatened species and biobanking

Where a Part 3A development might affect threatened species, the Planning Minister can approve a Part 3A project subject to a condition that the proponent acquire and retire a certain number of biodiversity credits.33 This applies even where the proponent has not triggered this process by requesting a biodiversity statement.

Alternatively, the Minister can impose a condition that the proponent comply with its biobanking statement, such as requiring the proponent to retire credits or requiring onsite work to be done to mitigate the impact on threatened species.34

Conditions relating to threatened species requirements for Part 3A projects cannot be appealed.35

  • See Fact Sheet 5.3 Clearing Vegetation, section 2.4.4 for more information on biobanking and biodiversity statements.
Case Study: True Conservation Association v The Minister Administering the Threatened Species Conservation Act 1995

In these proceedings the TCA is challenging the decision by the Minister on 14 Dec 2007 to grant biodiversity certification to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP). The effect of biodiversity certification is that species impact statements no longer need to be carried out for individual development applications in the area covered by the Growth Centres SEPP. Biodiversity certification is a process whereby up-front planning for threatened species protection is intended to take the place of site-by-site assessments. The Minister cannot grant biodiversity certification unless she is satisfied that the SEPP will lead to the overall improvement or maintenance of biodiversity values.

The TCA believes that, in this case, biodiversity certification was granted prematurely and based on inadequate information. The plan will result in the clearing of 1,856 ha of some of the rarest vegetation communities in the State. Approximately 16 threatened plant species and 22 threatened fauna species will suffer a loss of habitat as a result of the planned development under the Growth Centres SEPP.

On 25 June 2008 the Threatened Species Conservation (Special Provisions) Bill 2008 passed through both houses of the NSW Parliament. The bill will confer biodiversity certification on the area within the Growth Centres SEPP covered by the original order. This means that the Growth Centres SEPP will have the benefit of biodiversity certification, even if the original biodiversity order is declared invalid by the Court.

The NSW Government has shown scant respect for the rule of law by introducing special legislation to avoid having to comply with the requirements of the Threatened Species Conservation Act in relation to the Growth Centres SEPP. This sets a poor precedent for other areas of the State which are also subject to development pressure.

Our client is currently considering its options in relation to continuation of the proceedings (January 2009).

4.6 Planning Assessment Commission

The newly created Planning Assessment Commission (Commission) commenced operation on 1 October 2008. It provides the Planning Minister with the option to delegate the assessment and approval of Part 3A applications and concept plans to an external panel of decision makers (ie the Commission).36 It is expected that the Commission will act as consent authority for approximately 80 percent of projects currently determined by the Planning Minister.37

4.6.1 Some Part 3A Projects delegated to the Commission

On 18 November 2008, the Planning Minister issued an Instrument of Delegation38 delegating the Minister's powers to approve certain Part 3A projects to the Commission in the following circumstances:

  • if the developer has been required to lodge a statement of disclosure because of a reportable political donation
  • if the development will take place within the Minister's electorate, or
  • if the development is one where the Minister has a pecuniary interest.

The Instrument of Delegation does not apply to:

  • Concept plan applications, or
  • Critical infrastructure projects.

For more information on the Planning Assessment Commission, see Fact Sheet 2.2 on Development applications and consents.

4.7 Other environmental approvals

4.7.1 Exemption from some environmental approvals

Unlike DAs for integrated development under Part 4 of the EPA Act, Part 3A major projects do not need to obtain all their other environmental approvals before they can be approved.

The EPA Act gives Part 3A projects an exemption from some approvals (eg consent to clear native vegetation), whilst still requiring the project to obtain a range of other approvals (which cannot be refused: see para below).39

The environmental approvals from which approved Part 3A projects are exempt include:40

  • permits to dredge, or damage marine vegetation or fish ways under the Fisheries management Act 1994,
  • consent to destroy Aboriginal objects or places under s 87 or 90 of the NPW Act
  • consent to clear native vegetation under the Native Vegetation Act 2003, and
  • approvals under the Water Management Act 2000.
4.7.2 Environmental approvals which cannot be refused

Part 3A projects are not exempt from all other environmental approvals: see para above. Although there are still some environmental approvals which need to be obtained, such as a mining lease or pollution licence, the EPA Act states that these cannot be refused if they are necessary for carrying out the Part 3A project, and when issued, must be substantially consistent with the terms of the Planning Minister's Part 3A approval.41

Thus, once the Planning Minister approves a Part 3A project, there is very little that other public authorities (such as the EPA) can do to prevent the project from being carried out.

Other environmental approvals which cannot be refused for a Part 3A project include:42

  • aquaculture permits under the Fisheries Management Act 1994
  • a mining lease under the Mining Act 1992
  • a pollution licence under the Protection of the Environment Operations Act 1997.

4.8 Obligation to disclose political donations

On 1 October 2008, new provisions came into effect in the EPA Act requiring developers to disclose political donations and gifts when lodging or commenting on a development proposal.43

Under the new laws, the obligation to disclose not only applies to all development applications, but also to:

  • Formal requests to the Minister or the Director-General for the development of a particular site to be made State significant or to be declared a Part 3A project under the EPA Act; and
  • Applications for approval of a concept plan or project (or a modification) under Part 3A.

Under the new laws, developers who make such a request or application to the Director-General or Minister must disclose all political donations of $1,000 or more which are made within 2 years of making the application (or having it determined).44

Disclosure must be made in a statement accompanying the application or planning request. If the donation or gift is made after the application or request is made, the developer must lodge a statement with the decision maker within 7 days.45

The Department of Planning must make all disclosures to the Minister or Director-General publicly available, either on the internet or under arrangements posted on the internet, within 14 days of the disclosure being made.46

 

  1. EPA Act, s 75E.
  2. EPA Act, s 75D.
  3. EPA Regulation 2000, cl 8F(1), (2).
  4. EPA Regulation 2000, cl 8F(1).
  5. EPA Act, s 75M(1).
  6. EPA Act, s 75M(3A).
  7. EPA Act, s 75P.
  8. EPA Act, s 75N; EPA Regulation 2000, cl 8A(2), (3), 8C.
  9. EPA Act, s 75P(1)(a), (1A); EPA Regulations 2000, cl 8D.
  10. EPA Act, s 75P(1)(b), (2).
  11. EPA Act, s 75P(1)(c).
  12. EPA Act, s 75R(1).
  13. EPA Act, s 75F(2), (3).
  14. EPA Act, s 75F(4).
  15. EPA Act, s 75F(6).
  16. Environmental Planning and Assessment Amendment Act 2008 No 36
  17. EPA Act, s 23D(1)(b)(ii).
  18. EPA Act, s 75X(1).
  19. EPA Act, s 75H(1).
  20. EPA Act, s 75H(3).
  21. EPA Act, s 75H(4).
  22. EPA Act, s 75H(6).
  23. EPA Act, s 75X(2); EPA Regulations 2000, cl 8G.
  24. EPA Regulation 2000, cl 8G(2).
  25. EPA Act, s 75I.
  26. EPA Act, s 75J.
  27. EPA Act, s 75J(4), (5).
  28. EPA Act, s 75I(2)(e), 75J(3) and 75R(3).
  29. EPA Act, s 75J(3); EPA Regulations 2000, cl 8O
  30. EPA Regulation 2000, cl 8N(1).
  31. EPA Act, s 75R(2).
  32. EPA Act, s 75R(2)(b).
  33. EPA Act, s 75JA.
  34. EPA Act, s 75JA(4).
  35. EPA Act, s 75JA(5).
  36. EPA Act 2008, ss 23A – 23F; EPA Regulation 2000, cll 269O - 268W.
  37. EPA Act, s 23D(1)(a).
  38. NSW Government Gazette No 155, dated 5 December 2008, p 11750.
  39. EPA Act, s 75U.
  40. EPA Act, s 75U.
  41. EPA Act, s 75V(1).
  42. EPA Act, s 75V(1).
  43. EPA Act, s 147.
  44. EPA Act, s 147(3).
  45. EPA Act, s 147(6).
  46. EPA Act, s 147(12).