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 22 April 2019 at 12:30)
Part 5 Division 5.2
Division 5.2 State significant infrastructure
Subdivision 1 Preliminary
5.11   Definitions
(cf previous s 115T)
In this Division:
approved State significant infrastructure means infrastructure to the extent that it is approved by the Minister under this Division (but does not include any stage of the infrastructure that has not yet been authorised to be carried out by an approval under a staged infrastructure application).
critical State significant infrastructure means State significant infrastructure that is critical State significant infrastructure, as referred to in section 5.13.
development includes an activity within the meaning of Division 5.1.
infrastructure means development for the purposes of infrastructure, including (without limitation) development for the purposes of railways, roads, electricity transmission or distribution networks, pipelines, ports, wharf or boating facilities, telecommunications, sewerage systems, stormwater management systems, water supply systems, waterway or foreshore management activities, flood mitigation works, public parks or reserves management, soil conservation works or other purposes prescribed by the regulations.
proponent of infrastructure means the person proposing to carry out development comprising all or any part of the infrastructure, and includes any person certified by the Planning Secretary to be the proponent.
State significant infrastructure—see section 5.12.
5.12   Development that is State significant infrastructure
(cf previous s 115U)
(1)  For the purposes of this Act, State significant infrastructure is development that is declared under this section to be State significant infrastructure.
(2)  A State environmental planning policy may declare any development, or any class or description of development, to be State significant infrastructure.
(3)  Development that may be so declared to be State significant infrastructure is development of the following kind that a State environmental planning policy permits to be carried out without development consent under Part 4:
(a)  infrastructure,
(b)  other development that (but for this Division and within the meaning of Division 5.1) would be an activity for which the proponent is also the determining authority and would, in the opinion of the proponent, require an environmental impact statement to be obtained under Division 5.1.
Paragraph (b) does not apply where the proponent is a council, county council or joint organisation under the Local Government Act 1993.
(4)  Specified development on specified land is State significant infrastructure despite anything to the contrary in this section if it is specifically declared to be State significant infrastructure. Any such declaration may be made by a State environmental planning policy or by an order of the Minister (published on the NSW legislation website) that amends a State environmental planning policy for that purpose.
(5)  The Independent Planning Commission or Infrastructure NSW may recommend to the Minister that a declaration be made under subsection (4) in respect of particular development.
(6)  If, but for this subsection, development is both State significant infrastructure because of a declaration under subsection (2) and State significant development, it is not State significant infrastructure despite any such declaration.
(7)  If, but for this subsection, development is both State significant infrastructure because of a declaration under subsection (4) and State significant development, it is not State significant development despite any declaration under Division 4.7.
5.13   Critical State significant infrastructure
(cf previous s 115V)
Any State significant infrastructure may also be declared to be critical State significant infrastructure if it is of a category that, in the opinion of the Minister, is essential for the State for economic, environmental or social reasons. Any such declaration may be made by the instrument that declared the development to be State significant infrastructure or by a subsequent such instrument.
Note.
 In the case of critical State significant infrastructure, this Division contains the following additional provisions:
(a)  section 5.22 (4),
(b)  section 5.23 (3),
(c)  section 5.27.
Section 2.4 (3) also prevents the Minister delegating his or her function under this Division of determining an application for approval to carry out critical State significant infrastructure.
Subdivision 2 Environmental assessment and approval of infrastructure
5.14   Minister’s approval required for State significant infrastructure
(cf previous s 115W)
(1)  A person is not to carry out development that is State significant infrastructure unless the Minister has approved of the carrying out of the State significant infrastructure under this Division.
(2)  The person is to comply with any conditions to which such an approval is subject.
Maximum penalty: Tier 1 monetary penalty.
5.15   Application for approval of State significant infrastructure
(cf previous s 115X)
(1)  The proponent may apply for the approval of the Minister under this Division to carry out State significant infrastructure.
Note.
 Section 380AA of the Mining Act 1992 provides that an application in respect of State significant infrastructure for the mining of coal can only be made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned.
(2)  The application is to:
(a)  describe the infrastructure, and
(b)  contain any other matter required by the Planning Secretary.
(3)  The application is to be lodged with the Planning Secretary.
5.16   Environmental assessment requirements for approval
(cf previous s 115Y)
(1)  When an application is made for the Minister’s approval for State significant infrastructure, the Planning Secretary is to prepare environmental assessment requirements in respect of the infrastructure.
(2)  For the purposes of the environmental assessment, the environmental assessment requirements must require an environmental impact statement to be prepared by or on behalf of the proponent in the form prescribed by the regulations.
(3)  In preparing the environmental assessment requirements, the Planning Secretary 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.
(4)  The Planning Secretary is to notify the proponent of the environmental assessment requirements. The Planning Secretary may modify those requirements by further notice to the proponent.
5.17   Environmental assessment and public consultation
(cf previous s 115Z)
(1)  The proponent is to submit to the Planning Secretary the environmental impact statement required under this Subdivision for approval to carry out the State significant infrastructure.
(2)  The Planning Secretary may require the proponent to submit a revised environmental impact statement to address the matters notified to the proponent.
(3), (4)    (Repealed)
(5)  The Planning Secretary is to provide copies of submissions received by the Planning Secretary or a report of the issues raised in those submissions to:
(a)  the proponent, and
(b)  if the State significant infrastructure will require an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997—the Public Service agency responsible to the Minister for the Environment, and
(c)  any other public authority the Planning Secretary considers appropriate.
(6)  The Planning Secretary may require the proponent to submit to the Planning Secretary:
(a)  a response to the issues raised in those submissions, and
(b)  a preferred infrastructure report that outlines any proposed changes to the State significant infrastructure to minimise its environmental impact or to deal with any other issue raised during the assessment of the application concerned.
(7)  If the Planning Secretary considers that significant changes are proposed to the nature of the State significant infrastructure, the Planning Secretary may make the preferred infrastructure report available to the public.
5.18   Planning Secretary’s environmental assessment report
(cf previous s 115ZA)
(1)  The Planning Secretary is to give a report on the State significant infrastructure to the Minister for the purposes of the Minister’s consideration of the application for approval to carry out the infrastructure.
(2)  The Planning Secretary’s report is to include:
(a)  a copy of the proponent’s environmental impact statement and any preferred infrastructure report, and
(b)  any advice provided by public authorities on the State significant infrastructure, and
(c)  a copy of any report or advice of the Independent Planning Commission in respect of the State significant infrastructure, and
(d)  any environmental assessment undertaken by the Planning Secretary or other matter the Planning Secretary considers appropriate.
5.19   Giving of approval by Minister to carry out project
(cf previous s 115ZB)
(1)  If:
(a)  the proponent makes an application for the approval of the Minister under this Division to carry out State significant infrastructure, and
(b)  the Planning Secretary has given his or her report on the State significant infrastructure to the Minister,
the Minister may approve or disapprove of the carrying out of the State significant infrastructure.
(2)  The Minister, when deciding whether or not to approve the carrying out of State significant infrastructure, is to consider:
(a)  the Planning Secretary’s report on the infrastructure and the reports, advice and recommendations contained in the report, and
(b)  any advice provided by the Minister having portfolio responsibility for the proponent, and
(c)  any findings or recommendations of the Independent Planning Commission following a review in respect of the State significant infrastructure.
(3)  State significant infrastructure may be approved under this Division with such modifications of the infrastructure or on such conditions as the Minister may determine.
Subdivision 3 Staged infrastructure applications
5.20   Staged infrastructure applications
(cf previous s 115ZD)
(1)  For the purposes of this Division, a staged infrastructure application is an application for approval of State significant infrastructure under this Division that sets out concept proposals for the proposed infrastructure, and for which detailed proposals for separate parts of the infrastructure are to be the subject of subsequent applications for approval. The application may set out detailed proposals for the first stage.
(2)  If approval is granted under this Division on the determination of a staged infrastructure application, the approval does not authorise the carrying out of any part of the State significant infrastructure unless:
(a)  approval is subsequently granted to carry out that part of the infrastructure following a further application for approval in respect of that part of the infrastructure, or
(b)  the staged infrastructure application also provided the requisite details of that part of the infrastructure and approval is granted for that first stage without the need for further approval.
(3)  The terms of an approval granted on the determination of a staged infrastructure application are to reflect the operation of subsection (2).
5.21   Status of staged infrastructure applications and approvals
(cf previous s 115ZE)
(1)  The provisions of or made under this or any other Act relating to applications for approval and approvals under this Division apply, except as otherwise provided by or under this or any other Act, to a staged infrastructure application and an approval granted on the determination of any such application.
(2)  An approval granted on the determination of a staged infrastructure application for infrastructure does not have any effect to the extent that it is inconsistent with the determination of any further application for approval in respect of that infrastructure.
Subdivision 4 Application of other provisions of this and other Acts
5.22   Application of other provisions of Act
(cf previous s 115ZF)
(1)  Part 4 and Division 5.1 do not, except as provided by this Division, apply to or in respect of State significant infrastructure (including the declaration of the infrastructure as State significant infrastructure and any approval or other requirement under this Division for the infrastructure).
(2)  Part 3 and environmental planning instruments do not apply to or in respect of State significant infrastructure, except that:
(a)  they apply to the declaration of infrastructure as State significant infrastructure or as critical State significant infrastructure (and to the declaration of development that does not require consent), and
(b)  they apply in so far as they relate to section 3.16, and for that purpose a reference in that section to enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act is to be construed as a reference to enabling State significant infrastructure to be carried out in accordance with an approval granted under this Division.
(3)  Divisions 7.1 and 7.2 apply to State significant infrastructure that is not carried out by or on behalf of a public authority (and to the giving of approval for the carrying out of any such infrastructure under this Division) in the same way as they apply to development and the granting of consent to the carrying out of development under Part 4, subject to any necessary modifications and any modifications prescribed by the regulations.
(4)  A development control order cannot be given in relation to critical State significant infrastructure.
(5)    (Repealed)
(6)  Section 6.28 applies to approved State significant infrastructure.
Note.
 Section 6.33 (2) authorises the regulations to apply provisions of Part 6 relating to building and subdivision certification to State significant infrastructure.
5.23   Approvals etc legislation that does not apply
(cf previous s 115ZG)
(1)  The following authorisations are not required for approved State significant infrastructure (and accordingly the provisions of any Act that prohibit an activity without such an authority do not apply):
(a)    (Repealed)
(b)  a permit under section 201, 205 or 219 of the Fisheries Management Act 1994,
(c)  an approval under Part 4, or an excavation permit under section 139, of the Heritage Act 1977,
(d)  an Aboriginal heritage impact permit under section 90 of the National Parks and Wildlife Act 1974,
(e)    (Repealed)
(f)  a bush fire safety authority under section 100B of the Rural Fires Act 1997,
(g)  a water use approval under section 89, a water management work approval under section 90 or an activity approval (other than an aquifer interference approval) under section 91 of the Water Management Act 2000.
(2)  Division 8 of Part 6 of the Heritage Act 1977 does not apply to prevent or interfere with the carrying out of approved State significant infrastructure.
(3)  The following directions, orders or notices cannot be made or given so as to prevent or interfere with the carrying out of approved critical State significant infrastructure:
(a)  an interim protection order (within the meaning of the National Parks and Wildlife Act 1974),
(b)  an order under Division 1 (Stop work orders) of Part 6A of the National Parks and Wildlife Act 1974 or Division 7 (Stop work orders) of Part 7A of the Fisheries Management Act 1994,
(c)  a remediation direction under Division 3 (Remediation directions) of Part 6A of the National Parks and Wildlife Act 1974,
(c1)  an order or direction under Part 11 (Regulatory compliance mechanisms) of the Biodiversity Conservation Act 2016,
(d)  an environment protection notice under Chapter 4 of the Protection of the Environment Operations Act 1997,
(e)  an order under section 124 of the Local Government Act 1993.
(4)  A reference in this section to approved State significant infrastructure includes a reference to any investigative or other activities that are required to be carried out for the purpose of complying with any environmental assessment requirements under this Division in connection with an application for approval to carry out the State significant infrastructure.
5.24   Approvals etc legislation that must be applied consistently
(cf previous s 115ZH)
(1)  An authorisation of the following kind cannot be refused if it is necessary for carrying out approved State significant infrastructure and is to be substantially consistent with the approval under this Division:
(a)  an aquaculture permit under section 144 of the Fisheries Management Act 1994,
(b)  an approval under section 15 of the Mine Subsidence Compensation Act 1961,
(c)  a mining lease under the Mining Act 1992,
Note.
 Under section 380A of the Mining Act 1992, a mining lease can be refused on the ground that the applicant is not a fit and proper person, despite this section.
(d)  a production lease under the Petroleum (Onshore) Act 1991,
Note.
 Under section 24A of the Petroleum (Onshore) Act 1991, a production lease can be refused on the ground that the applicant is not a fit and proper person, despite this section.
(e)  an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997 (for any of the purposes referred to in section 43 of that Act),
(f)  a consent under section 138 of the Roads Act 1993,
(g)  a licence under the Pipelines Act 1967.
(2)  This section does not apply to or in respect of:
(a)  an application for the renewal of an authorisation or a renewed authorisation, or
(b)  an application for a further authorisation or a further authorisation following the expiry or lapsing of an authorisation, or
(c)  in the case of an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997—any period after the first review of the licence under section 78 of that Act.
(3)  A reference in this section to an authorisation or approval includes a reference to any conditions of the authorisation or approval.
(4)  This section applies to a person, court or tribunal that deals with an objection, appeal or review conferred on a person in relation to an authorisation in the same way as it applies to the person giving the authorisation.
Subdivision 5 Miscellaneous
5.25   Modification of Minister’s approval
(cf previous s 115ZI)
(1)  In this section:
Minister’s approval means an approval to carry out State significant infrastructure under this Division, and includes an approval granted on the determination of a staged infrastructure application.
modification of an approval means changing the terms of the approval, including revoking or varying a condition of the approval or imposing an additional condition on the approval.
(2)  The proponent may request the Minister to modify the Minister’s approval for State significant infrastructure. The Minister’s approval for a modification is not required if the infrastructure as modified will be consistent with the existing approval under this Division.
Note.
 Section 380AA of the Mining Act 1992 provides that a request for the modification of approval for State significant infrastructure for the mining of coal can only be made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned.
(3)  The request for the Minister’s approval is to be lodged with the Planning Secretary. The Planning Secretary may notify the proponent of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister.
(4)  The Minister may modify the approval (with or without conditions) or disapprove of the modification.
5.26   Validity of action under this Division
(cf previous s 115ZJ)
(1)  The validity of an approval or other decision under this Division cannot be questioned in any legal proceedings in which the decision may be challenged except those commenced in the Court within 3 months after public notice of the decision was given.
(2)  The only requirement of this Division that is mandatory in connection with the validity of an approval of State significant infrastructure is a requirement that an environmental impact statement with respect to the infrastructure is made publicly available under this Division.
(3)  Any infrastructure that has been approved (or purports to be approved) by the Minister under this Division is taken to be State significant infrastructure to which this Division applies, and to have been such infrastructure for the purposes of any application or other matter under this Division in relation to the infrastructure.
5.27   Third-party appeals and judicial review—critical State significant infrastructure
(cf previous s 115ZK)
(1)  In this section:
breach has the meaning given by Division 9.5.
the judicial review jurisdiction of the Court means the jurisdiction conferred on the Court under section 20 (2) of the Land and Environment Court Act 1979.
the third-party appeal provisions means Division 9.5 of this Act and sections 252 and 253 of the Protection of the Environment Operations Act 1997.
(2)  The third-party appeal provisions do not apply in relation to the following (except in relation to an application to the Court made or approved by the Minister):
(a)  a breach of this Act arising under this Division in respect of critical State significant infrastructure, including the declaration of the development as State significant infrastructure (and as critical State significant infrastructure) and any approval or other requirement under this Division for the infrastructure,
(b)  a breach of any conditions of an approval under this Division for critical State significant infrastructure,
(c)  a breach of this or any other Act arising in respect of the giving of an authorisation of a kind referred to in section 5.24 (1) for critical State significant infrastructure (or in respect of the conditions of such an authorisation).
(3)  The conditions of approval under this Division for critical State significant infrastructure are conditions that may only be enforced by or with the approval of the Minister (whether under the third-party appeal provisions, the judicial review jurisdiction of the Court or in any other proceedings).
(4)  The third-party appeal provisions and the judicial review jurisdiction of the Court are subject to the provisions of section 5.26.
5.28   Miscellaneous provisions relating to approvals under this Division
(cf previous s 115ZL)
(1)  The following documents under this Division in relation to State significant infrastructure are to be made publicly available by the Planning Secretary in accordance with the regulations:
(a)  applications to carry out State significant infrastructure,
(b)  environmental assessment requirements for State significant infrastructure,
(c)  environmental impact statements placed on public exhibition and responses provided to the Planning Secretary by the proponent after the end of the public exhibition period,
(d)  environmental assessment reports of the Planning Secretary to the Minister,
(e)  any advice, recommendations or reports received from the Independent Planning Commission,
(f)  approvals to carry out State significant infrastructure given by the Minister,
(g)  requests for modifications of approvals given by the Minister and any modifications made by the Minister,
(h)  any reasons given to the proponent by the Minister as referred to in subsection (2),
(i)  any other matter prescribed by the regulations.
(2)  The Minister is to give reasons to the proponent for a decision:
(a)  not to approve State significant infrastructure under this Division, or
(b)  to modify the State significant infrastructure for which the proponent has sought approval under this Division.
(3)  An approval under this Division may be subject to a condition that it lapses on a specified date unless specified action with respect to the approval has been taken (such as the commencement of work on the infrastructure). Any such condition may be modified to extend the lapsing period.
(4)  An approval under this Division may be surrendered, subject to and in accordance with the regulations, by any person entitled to act on the approval.
(5)  A condition of the approval of State significant infrastructure under this Division may require any one or more of the following:
(a)  the surrender under this section of any other approval under this Division (or under Part 3A) relating to the infrastructure or the land concerned,
(b)  the surrender under section 4.63 of any development consent relating to the infrastructure or the land concerned,
(c)  the surrender, subject to and in accordance with the regulations, of a right conferred by Division 4.11 relating to the infrastructure or the land concerned.
5.29   Regulations for purposes of Division
(cf previous s 115ZM)
The regulations may make provision for or with respect to the approval of State significant infrastructure under this Division and to approved State significant infrastructure, including:
(a)  the requirements and procedures for making applications for approvals under this Division, and
(b)  requiring owners of land on which State significant infrastructure is proposed to be carried out to consent to applications for approvals under this Division, and
(c)  the amendment of applications for approvals under this Division, and
(d)  the preparation, notification and modification of requirements for environmental assessment of State significant infrastructure, and
(e)  the requirements for environmental impact statements under this Division, and
(f)  the fees for applications and the exercise of functions under this Division, and
(g)  requiring the New South Wales Aboriginal Land Council to consent to applications for approvals under this Division on land owned by Local Aboriginal Land Councils, if the consent of the Local Aboriginal Land Council concerned is required as owner of the land, and
(h)  providing for public exhibition, notification and public registers of applications for approvals under this Division (or for the modification of approvals) and of the determination of those applications, and
(i)  the effect of the revocation of the declaration of development as State significant infrastructure.