Approval pathways for associated or enabling infrastructure for State Significant Development in NSW – Urgent amendment to NSW planning legislation
The recent NSW Court of Appeal decision in Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024 NSWCA 205, unexpectedly created difficulties for multiple major State Significant Development (SSD) projects which rely on enabling or associated works, such as road upgrades, transmission connections or similar. To date, it has been common practice for these works to be assessed and receive approval under Part 5, Division 5.1 of the NSW Environmental Planning and Assessment Act 1979 (EP&A Act). The Court of Appeal voided the consent for the proposed Bowdens Silver Mine because the likely impacts of the required transmission line had not been assessed and it was proposed to be the subject of a separate approval under Part 5 of the EP&A Act, by the electricity transmission provider. In summary, the Court found that s4.38(4) of the EP&A Act meant that all parts of a “single proposed development” which is SSD, require consent under Part 4 of the Act and precludes the use of Part 5. The effect of this decision is to close off a commonly used planning pathway for enabling and offsite works often associated with SSD projects.
This decision impacts 60 SSD projects currently in the NSW planning process, and threatens 21 which have recently been granted consent, totaling more than $50B in investment. Many of these are renewable energy projects and large-scale housing projects which the State is keen to ensure receive improved assessment timeframes.
In response, the Government has rushed into Parliament a bill to overcome these issues, though has been clear to state that the Amendment Bill does not seek to overturn the decision. The Environmental Planning and Assessment Amendment (State Significant Development) Bill 2024 passed the lower house on October 23 and moved into the upper house on October 24.
The Amendment Bill proposes the following:
- For SSD projects going forward:
- The amendment inserts three new clauses after s4.38(4) which do the following:
4A. Empower the Planning Secretary to determine whether an activity does or does not form part of a single proposed development
4B. States that s4.38(4) does not apply to development determined to not be a part of a single proposed development – clarifying that Part 5 processes can be used
4C. Enables regulations to prescribe how the Planning Secretary goes about making the decision under s4.38(4A).
- For SSD projects which have received consent:
- Validates all decisions made before the amendment which could be invalid due to s4.38(4), meaning that consents already granted cannot be challenged by virtue of the recent decision.
The proposed amendments are a welcome response to the Court of Appeal decision and although it will be another step in the assessment process, offer proponents a pathway to certainty on what forms part of the development.
EMM is advising several SSD projects impacted by the decision and Amendment Bill and provides expertise on the optimum approval pathways for complex projects. Our team offers strategic guidance, ensuring compliance with evolving regulations and where possible, minimizing risks and delays. With deep experience in navigating planning and environmental approvals, we help clients achieve successful outcomes in a rapidly changing regulatory environment.
For further information contact Michelle Veney or David Snashall.
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