You are using a version of the website built for webcrawlers and people whose devices cannot use javascript.
Some functionality will not be available.
Contents (1979 - 203)
Skip to content
Environmental Planning and Assessment Act 1979 No 203
Current version for 15 February 2019 to date (accessed 18 June 2019 at 09:26)
Part 5 Division 5.1
Division 5.1 Environmental impact assessment (except for State significant infrastructure)
Subdivision 1 Preliminary
5.1   Definitions
(cf previous s 110)
(1)  In this Division:
activity means:
(a)  the use of land, and
(b)  the subdivision of land, and
(c)  the erection of a building, and
(d)  the carrying out of a work, and
(e)  the demolition of a building or work, and
(f)  any other act, matter or thing referred to in section 3.14 that is prescribed by the regulations for the purposes of this definition,
but does not include:
(g)  any act, matter or thing for which development consent under Part 4 is required or has been obtained, or
(h)  any act matter or thing that is prohibited under an environmental planning instrument, or
(i)  exempt development, or
(j)  development carried out in compliance with a development control order, or
(k)  any development of a class or description that is prescribed by the regulations for the purposes of this definition.
approval includes:
(a)  a consent, licence or permission or any form of authorisation, and
(b)  a provision of financial accommodation by a determining authority to another person, not being a provision of such financial accommodation, or financial accommodation of such class or description, as may be prescribed for the purposes of this definition by a determining authority so prescribed.
determining authority means a Minister or public authority and, in relation to any activity, means the Minister or public authority by or on whose behalf the activity is or is to be carried out or any Minister or public authority whose approval is required in order to enable the activity to be carried out.
nominated determining authority, in relation to an activity, means the determining authority nominated by the Minister in accordance with section 5.2 in relation to the activity.
proponent, in relation to an activity, means the person proposing to carry out the activity, and includes any person taken to be the proponent of the activity by virtue of section 5.3.
(2)  The Minister is not a determining authority in relation to an activity for the purposes of this Division merely because the Minister’s approval is required under Part 3A or Division 5.2.
5.2   Nomination of nominated determining authority
(cf previous s 110A)
(1)  Where the approval of more than one determining authority is required in relation to an activity or an activity of a specified class or description (either in respect of the carrying out of the activity or the granting of an approval in respect of the activity), the Minister may, by a Ministerial planning order, nominate a determining authority to be the nominated determining authority in relation to the activity or an activity of that class or description for the purposes of this Division.
(2)  Where, under subsection (1), the Minister has nominated a determining authority to be the nominated determining authority in relation to an activity or an activity of a specified class or description, any other determining authority which would otherwise be required to comply with the provisions of this Division in relation to the activity or an activity of that class or description is not required:
(a)  to comply with section 5.7 (2) or (3), or
(b)  to comply with section 5.8,
in relation to the activity or any activity which comes within that class or description but shall, in all other respects, comply with the relevant provisions of this Division.
(3)  A determining authority (other than the nominated determining authority) is required to forward to the nominated determining authority a copy of any submissions made to it under section 5.8 (2) and to provide other information to the nominated determining authority, as required by the regulations, to enable the nominated determining authority to co-ordinate the preparation and furnishing of reports in relation to the activity or activity of the specified class or description.
5.3   Determining authorities taken to be proponents of activities
(cf previous s 110B)
(1)  A proponent of an activity for the purposes of this Division is taken to include the following:
(a)  the Forestry Corporation in respect of forestry activities authorised by that Corporation on land under the management of that Corporation,
(b)  any determining authority which the Minister certifies in writing to be the proponent of a particular activity specified in the certificate or which the regulations declare to be the proponent of activities of the kind specified in the regulations.
(2)  In any such case, a reference in this Division to a determining authority carrying out an activity includes a reference to the Forestry Corporation or such a determining authority granting an approval in relation to the activity.
5.4   Exemptions for certain activities
(cf previous s 110E)
Sections 5.5 and 5.7 do not apply to or in respect of the following (despite the terms of those sections):
(a)  a modification of an activity, whose environmental impact has already been considered, that will reduce its overall environmental impact,
(b)  a routine activity (such as the maintenance of infrastructure) that the Minister determines has a low environmental impact and that is carried out in accordance with a code approved by the Minister,
(c)  an activity (or part of an activity) that has been approved, or is to be carried out, by another determining authority after environmental assessment in accordance with this Division.
Subdivision 2 Duty of determining authorities to consider environmental impact of activities
5.5   Duty to consider environmental impact
(cf previous s 111)
(1)  For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.
(2)    (Repealed)
(3)  Without limiting subsection (1), a determining authority shall consider the effect of an activity on any wilderness area (within the meaning of the Wilderness Act 1987) in the locality in which the activity is intended to be carried on.
(4)    (Repealed)
5.6   Regulations for environmental impact assessment by prescribed determining authorities
(cf previous s 111A)
(1)  In this section, prescribed determining authority means a person prescribed for the purposes of the definition of public authority in section 1.4 (1) so as to allow the person to be a determining authority within the meaning of this Division.
(2)  The regulations may make provision for or with respect to the exercise by a prescribed determining authority of its functions under section 5.5 (environmental impact assessment functions), including (without limitation) provision for or with respect to the following:
(a)  the manner in which environmental impact assessment functions must be exercised including the matters that must be considered in the exercise of those functions,
(b)  requirements for public and other consultation in connection with environmental impact assessment functions, including requirements for consultation with the Planning Secretary and the consideration of advice given by the Planning Secretary,
(c)  requirements for the documentation of the exercise of environmental impact assessment functions (assessment documentation),
(d)  requirements for making assessment documentation available to the Minister and the Planning Secretary and for the public release of assessment documentation,
(e)  requirements for auditing the exercise of environmental impact assessment functions and compliance with requirements imposed by or under the regulations.
(3)  The regulations may provide for the approval by the Minister of a code (an approved code) that makes provision for or with respect to the matters for which the regulations under this section may make provision.
(4)  An approved code may make provision for or with respect to a matter by applying, adopting or incorporating, with or without modification, the provisions of a specified document as in force for the time being or a document formulated, issued or published by a specified person or body.
Subdivision 3 Activities for which EIS required
5.7   Decision of determining authority in relation to certain activities
(cf previous s 112)
(1)  A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment, unless:
(a)  the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity:
(i)  prepared in the prescribed form and manner by or on behalf of the proponent, and
(ii)  except where the proponent is the determining authority, submitted to the determining authority in the prescribed manner,
(b)  notice referred to in section 5.8 (1) has been duly given by the determining authority (or, where a nominated determining authority has been nominated in relation to the activity, by the nominated determining authority), the period specified in the notice has expired and the determining authority has examined and considered any representations made to it or any other determining authority in accordance with section 5.8 (2),
(c)  the determining authority has complied with section 5.8 (3),
(c1)    (Repealed)
(d)  where it receives notice from the Planning Secretary that the Minister has requested that a review be held by the Independent Planning Commission with respect to the activity, the review has been held and the determining authority has considered the findings and recommendations of the Independent Planning Commission and any advice given to it by the Minister in accordance with section 5.9, and
(e)  where it receives notice from the Planning Secretary that the Planning Secretary has decided that an examination be undertaken in accordance with section 5.8 (5), that examination has been carried out and the determining authority has considered the report furnished to it in accordance with that subsection.
(1A)  A determining authority shall not grant an approval in relation to an activity referred to in subsection (1) that is to be carried out in respect of land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987) unless any consent to the activity required under that Act has been obtained.
(1B)–(1D)    (Repealed)
(2)  The determining authority or nominated determining authority, as the case requires, shall, as soon as practicable after an environmental impact statement is obtained by or furnished to it, as referred to in subsection (1), but before giving notice under section 5.8 (1), furnish to the Planning Secretary a copy of the statement.
(3)  A determining authority or nominated determining authority, as the case requires, shall furnish such number of additional copies of an environmental impact statement to the Planning Secretary as the Planning Secretary may request.
(4)  Before carrying out an activity referred to in subsection (1) or in determining whether to grant an approval in relation to such an activity, a determining authority which is satisfied that the activity will detrimentally affect the environment:
(a)  may, except where it is the proponent of the activity:
(i)  impose such conditions or require such modifications as will in its opinion eliminate or reduce the detrimental effect of the activity on the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, or
(ii)  disapprove of the activity, or
(b)  may, where it is the proponent of the activity:
(i)  modify the proposed activity so as to eliminate or reduce the detrimental effect of the activity on the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, or
(ii)  refrain from undertaking the activity.
(5)  Where a determining authority, not being the proponent of an activity, imposes conditions as referred to in subsection (4) (a) (i) or disapproves of an activity as referred to in subsection (4) (a) (ii), the determining authority shall, by notice in writing to the proponent, indicate the reasons for the imposition of the conditions or for disapproving of the activity.
(6)  The provisions of subsection (4) have effect notwithstanding any other provisions of this Act (other than Part 3A or Division 5.2) or the provisions of any other Act or of any instrument made under this or any other Act.
(6A)    (Repealed)
(7)  Where a nominated determining authority has been nominated in relation to an activity, no other determining authority which may grant an approval in relation to the activity shall be concerned to inquire whether or not the nominated determining authority has complied with this section or section 5.8.
5.8   Publicity and examination of environmental impact statements
(cf previous s 113)
(1)  A determining authority shall give notice in the prescribed form and manner that a copy of an environmental impact statement prepared by or submitted to it, as referred to in section 5.7 (1), may be inspected at:
(a)  the office of the determining authority and the Department at any time during ordinary office hours, and
(b)  such other premises operated or controlled by them respectively and at such times as may be prescribed,
within such period, being not less than 30 days after the day on which the notice is given, as may be specified in the notice.
(2)  Any person may, during the period specified in the notice, inspect the environmental impact statement (except any part thereof the publication of which would, in the opinion of the determining authority, be contrary to the public interest by reason of its confidential nature or for any other reason) and may within that period make submissions in writing to the determining authority with respect to the activity to which the environmental impact statement relates.
(3)  A determining authority shall, as soon as practicable and not less than 21 days before carrying out an activity or granting an approval in relation to an activity, being an activity referred to in section 5.7 (1), furnish to the Planning Secretary a copy of any submissions made to it under subsection (2) with respect to the activity.
(3A)  The determining authority must, at that time, also forward copies of those submissions to the Environment Protection Authority if the activity is a scheduled activity under the Protection of the Environment Operations Act 1997.
(4)    (Repealed)
(5)  Except where the Minister has requested that a review be held by the Independent Planning Commission, the Planning Secretary may examine or cause to be examined in the Department an environmental impact statement furnished in accordance with section 5.7 (2) and any submissions made with respect to the activity to which the statement relates under subsection (2) and shall forward, as soon as practicable to the relevant determining authority, a report containing the findings of that examination together with any recommendations arising therefrom.
(6)  After the report referred to in subsection (5) has been forwarded to the determining authority, the Planning Secretary shall make public that report.
(7)  Any public authority or body to which an appeal may be made by or under any Act in relation to the activity the subject of an examination carried out under subsection (5) shall, in deciding the appeal, consider and take into account the report forwarded to the determining authority under that subsection.
(8)  In this section, environmental impact statement includes a fauna impact statement and a species impact statement.
5.9   Consideration of findings and recommendations of Independent Planning Commission
(cf previous s 114)
Where the Minister has requested that a review be held by the Independent Planning Commission, with respect to any activity referred to in section 5.7 (1):
(a)  the Minister shall consider the findings and recommendations of the Independent Planning Commission and forward to the relevant determining authority (whether or not that determining authority is the nominated determining authority) a copy of the findings and recommendations and may give advice to the authority as to whether, in the Minister’s opinion:
(i)  there are no environmental grounds which would preclude the carrying out of the activity to which the findings and recommendations relate in accordance with the proponent’s proposal,
(ii)  there are no environmental grounds which would preclude the carrying out of the activity subject to its being modified in the manner specified in the advice,
(iii)  there are no environmental grounds which would preclude the carrying out of the activity subject to the observance of conditions specified in the advice, or
(iv)  there are environmental grounds which would preclude the carrying out of the activity, and
(b)  any public authority or body to which an appeal may be made by or under any Act in relation to the activity shall, in deciding the appeal, consider and take into account the findings and recommendations of the Independent Planning Commission and any such advice given by the Minister.
5.10   Regulations
(cf previous s 115)
The regulations may make provision for or with respect to:
(a)  the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment,
(b)  the preparation, contents, form and submission of environmental impact statements,
(c)  the making of environmental impact statements available for public comment, or
(d)  the methods of examination of environmental impact statements and submissions made with respect to activities to which any such statements relate.