Environmental Planning and Assessment Act 1979 No 203
Historical version for 1 October 2010 to 31 December 2010 (accessed 22 December 2014 at 05:00) Current version
Part 3ADivision 2

Division 2 Environmental assessment and approval of projects

75D   Minister’s approval required for projects

(1)  A person is not to carry out development that is a project to which this Part applies unless the Minister has approved of the carrying out of the project under this Part.
(2)  The person is to comply with any conditions to which such an approval is subject.

75E   Application for approval of project

(1)  The proponent may apply for the approval of the Minister under this Part to carry out a project.
(2)  The application is to:
(a)  describe the project, and
(b)  contain any other matter required by the Director-General.
(3)  The application is to be lodged with the Director-General.
(4)  An application may relate to part only of a project.

75F   Environmental assessment requirements for approval

(1)  The Minister may, after consultation with the Minister for the Environment, publish guidelines in the Gazette with respect to environmental assessment requirements for the purpose of the Minister approving projects under this Part (including levels of assessment and the public authorities and others to be consulted).
(2)  When an application is made for the Minister’s approval for a project, the Director-General is to prepare environmental assessment requirements having regard to any such relevant guidelines in respect of the project.
(3)  The Director-General is to notify the proponent of the environmental assessment requirements. The Director-General may modify those requirements by further notice to the proponent.
(4)  In preparing the environmental assessment requirements, the Director-General is to consult relevant public authorities and have regard to the need for the requirements to assess any key issues raised by those public authorities.
(5)  The environmental assessment requirements may require an environmental assessment to be prepared by or on behalf of the proponent in the form approved by the Director-General.
(6)  The Director-General may require the proponent to include in an environmental assessment a statement of the commitments the proponent is prepared to make for environmental management and mitigation measures on the site.
(7)  This section is subject to section 75P.
Note. Section 75P enables the Minister to determine environmental assessment requirements for approval to carry out the project or any stage of the project when giving approval to a concept plan for the project under Division 3.

75G   (Repealed)

75H   Environmental assessment and public consultation

(1)  The proponent is to submit to the Director-General the environmental assessment required under this Division for approval to carry out the project.
(2)  If the Director-General considers that the environmental assessment does not adequately address the environmental assessment requirements, the Director-General may require the proponent to submit a revised environmental assessment to address the matters notified to the proponent.
(3)  After the environmental assessment has been accepted by the Director-General, the Director-General must, in accordance with any guidelines published by the Minister in the Gazette, make the environmental assessment publicly available for at least 30 days.
(4)  During that period, any person (including a public authority) may make a written submission to the Director-General concerning the matter.
(5)  The Director-General is to provide copies of submissions received by the Director-General or a report of the issues raised in those submissions to:
(a)  the proponent, and
(b)  if the project will require an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997—the Department of Environment, Climate Change and Water, and
(c)  any other public authority the Director-General considers appropriate.
(6)  The Director-General may require the proponent to submit to the Director-General:
(a)  a response to the issues raised in those submissions, and
(b)  a preferred project report that outlines any proposed changes to the project to minimise its environmental impact, and
(c)  any revised statement of commitments.
(7)  If the Director-General considers that significant changes are proposed to the nature of the project, the Director-General may require the proponent to make the preferred project report available to the public.

75I   Director-General’s environmental assessment report

(1)  The Director-General is to give a report on a project to the Minister for the purposes of the Minister’s consideration of the application for approval to carry out the project.
(2)  The Director-General’s report is to include:
(a)  a copy of the proponent’s environmental assessment and any preferred project report, and
(b)  any advice provided by public authorities on the project, and
(c)  a copy of any report of the Planning Assessment Commission in respect of the project, and
(d)  a copy of or reference to the provisions of any State Environmental Planning Policy that substantially govern the carrying out of the project, and
(e)  except in the case of a critical infrastructure project—a copy of or reference to the provisions of any environmental planning instrument that would (but for this Part) substantially govern the carrying out of the project and that have been taken into consideration in the environmental assessment of the project under this Division, and
(f)  any environmental assessment undertaken by the Director-General or other matter the Director-General considers appropriate, and
(g)  a statement relating to compliance with the environmental assessment requirements under this Division with respect to the project.

75J   Giving of approval by Minister to carry out project

(1)  If:
(a)  the proponent makes an application for the approval of the Minister under this Part to carry out a project, and
(b)  the Director-General has given his or her report on the project to the Minister,
the Minister may approve or disapprove of the carrying out of the project.
(2)  The Minister, when deciding whether or not to approve the carrying out of a project, is to consider:
(a)  the Director-General’s report on the project and the reports, advice and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and
(b)  if the proponent is a public authority—any advice provided by the Minister having portfolio responsibility for the proponent, and
(c)  any findings or recommendations of the Planning Assessment Commission following a review in respect of the project.
(3)  In deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.
(4)  A project may be approved under this Part with such modifications of the project or on such conditions as the Minister may determine.
(5)  The conditions of approval for the carrying out of a project may require the proponent to comply with any obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F).

75JA   Biobanking—special provisions

(1)  Without limiting section 75J, the Minister may approve a project subject to a condition that requires the proponent to acquire and retire (in accordance with Part 7A of the Threatened Species Conservation Act 1995) biodiversity credits of a number and class (if any) specified by the Minister in the approval. This subsection applies whether or not a biobanking statement under Part 7A of that Act was obtained in respect of the project.
(2)  The Minister may approve an arrangement under which:
(a)  the retirement of some or all of the biodiversity credits is deferred pending the completion of any rehabilitation or restoration action proposed to be taken on the site of the project, after the project has been substantially completed, that will restore or improve the biodiversity values affected by the project, and
(b)  the biodiversity credits the retirement of which is deferred pending the completion of those actions are required to be transferred to the Minister administering the Threatened Species Conservation Act 1995.
(3)  Division 7 of Part 7A of the Threatened Species Conservation Act 1995 applies in respect of any such arrangement as if it were a deferred retirement arrangement approved by the Director-General of the Department of Environment, Climate Change and Water under that Division.
(4)  If a biobanking statement was obtained in respect of the project, the Minister may approve the project subject to a condition that requires the proponent to comply with any conditions of the biobanking statement.
Note. The conditions of a biobanking statement may require the proponent to retire biodiversity credits in respect of the project in order to ensure that it maintains or improves biodiversity values, or to carry out other onsite measures to minimise any negative impact of the project on biodiversity values.
(5)  A person cannot appeal to the Court in respect of a condition imposed by the Minister under subsection (4).

75K   Appeals by proponent

(1)  This section applies to a project if:
(a)  the project is not a critical infrastructure project, and
(b)  the proponent is not a public authority, and
(c)  the project has not been the subject of a review by the Planning Assessment Commission, and
(d)  but for this Part, the provisions of Part 4 would apply to the project.
(2)  A proponent who is dissatisfied with the determination of the Minister with respect to an application by the proponent under this Division may appeal to the Court within 3 months after:
(a)  the date on which the proponent received notice of the determination of the application in accordance with the regulations, or
(b)  the date on which the regulations provide that a pending application is taken to have been refused for the purposes only of this section.
(3)  If any such appeal is made, each objector to the application referred to in section 75L is to be given notice by the Minister of that appeal and is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if the objector were a party to the appeal.

75L   Appeals by an objector

(1)  This section applies to a project if:
(a)  it is not a critical infrastructure project, and
(b)  there has been no approval of a concept plan for the project under Division 3, and
(c)  the project has not been the subject of a review by the Planning Assessment Commission, and
(d)  but for this Part, the project would be designated development to which the provisions of Part 4 would apply.
(2)  For the purposes of this section, an objector is a person who has made a submission under section 75H by way of objection to an application for approval under this Division to carry out a project.
(3)  An objector who is dissatisfied with the determination of the Minister under this Division to give approval to carry out a project may appeal to the Court within 28 days after the date on which notice of the determination was given in accordance with the regulations.
(4)  If such an appeal is made, the proponent and the Minister are to be given notice of the appeal, in accordance with rules of court, and are entitled to be heard at the hearing of the appeal as parties to the appeal.
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