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Contents (2000 - 557)
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Environmental Planning and Assessment Regulation 2000
Historical version for 12 February 2010 to 28 February 2010 (accessed 18 January 2020 at 03:10) Current version
Part 14
Part 14 Environmental assessment under Part 5 of the Act
Division 1A Preliminary
227AA   Demolition of temporary structure not “activity”
Pursuant to paragraph (k) of the definition of activity in section 110 (1) of the Act, the demolition of a temporary structure is prescribed not to be such an activity for the purposes of that definition.
Division 1 Circumstances requiring an environmental impact statement
228   What factors must be taken into account concerning the impact of an activity on the environment?
(cf clause 82 of EP&A Regulation 1994)
(1)  For the purposes of Part 5 of the Act, the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment include:
(a)  for activities of a kind for which specific guidelines are in force under this clause, the factors referred to in those guidelines, or
(b)  for any other kind of activity:
(i)  the factors referred to in the general guidelines in force under this clause, or
(ii)  if no such guidelines are in force, the factors referred to subclause (2).
(2)  The factors referred to in subclause (1) (b) (ii) are as follows:
(a)  any environmental impact on a community,
(b)  any transformation of a locality,
(c)  any environmental impact on the ecosystems of the locality,
(d)  any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality,
(e)  any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations,
(f)  any impact on the habitat of protected fauna (within the meaning of the National Parks and Wildlife Act 1974),
(g)  any endangering of any species of animal, plant or other form of life, whether living on land, in water or in the air,
(h)  any long-term effects on the environment,
(i)  any degradation of the quality of the environment,
(j)  any risk to the safety of the environment,
(k)  any reduction in the range of beneficial uses of the environment,
(l)  any pollution of the environment,
(m)  any environmental problems associated with the disposal of waste,
(n)  any increased demands on resources (natural or otherwise) that are, or are likely to become, in short supply,
(o)  any cumulative environmental effect with other existing or likely future activities.
(3)  For the purposes of this clause, the Director-General may establish guidelines for the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment, in relation to activities generally or in relation to any particular kind of activity.
(4)  The Director-General may vary or revoke any guidelines in force under this clause.
Division 2 Environmental impact statements
229   What is the form for an environmental impact statement?
(cf clause 83 of EP&A Regulation 1994)
For the purposes of section 112 of the Act, the prescribed form for an environmental impact statement under that section is a form that contains the following information:
(a)  the name, address and professional qualifications of the person by whom the statement is prepared,
(b)  the name and address of the proponent of the activity to which the statement relates,
(c)  the address of the land on which the activity to which the statement relates is to be carried out,
(d)  a description of the activity to which the statement relates,
(e)  an assessment by the person by whom the statement is prepared of the environmental impact of the activity to which the statement relates, dealing with the matters referred to in clause 230,
(f)  a declaration by the person by whom the statement is prepared to the effect that:
(i)  the statement has been prepared in accordance with clauses 230 and 231, and
(ii)  the statement contains all available information that is relevant to the environmental assessment of the activity to which the statement relates, and
(iii)  that the information contained in the statement is neither false nor misleading.
230   What must an environmental impact statement contain?
(cf clause 84 of EP&A Regulation 1994)
(1)  The contents of an environmental impact statement must include:
(a)  for activities of a kind for which specific guidelines are in force under this clause, the matters referred to in those guidelines, or
(b)  for any other kind of activity:
(i)  the matters referred to in the general guidelines in force under this clause, or
(ii)  if no such guidelines are in force, the matters referred to in Schedule 2.
(2)  The Director-General:
(a)  may establish guidelines for the preparation of environmental impact statements, in relation to activities generally or in relation to any specific kind of activity, and
(b)  may vary or revoke any guidelines so established.
(3)  An environmental impact statement prepared in accordance with this clause before the date on which any of the following events occur:
(a)  the amendment of Schedule 2,
(b)  the establishment of new guidelines under this clause,
(c)  the variation or revocation of existing guidelines under this clause,
is taken to have been prepared in accordance with this clause, for the purposes of any relevant notice under section 113 (1) of the Act given within 3 months after that date, as if the relevant event had not occurred.
231   Director-General may make requirements concerning preparation of environmental impact statements
(cf clause 85 of EP&A Regulation 1994)
(1)  For the purposes of section 112 of the Act, the prescribed manner in which an environmental impact statement under that section is to be prepared is as follows:
(a)  the proponent responsible for preparing the statement must consult with the Director-General, and have regard to the Director-General’s requirements concerning:
(i)  the form and content of the statement, and
(ii)  the availability of the statement for public comment,
(b)  for the purposes of the consultation, the proponent must give the Director-General written particulars of the location, nature and scale of the activity,
(c)  written notice of the Director-General’s requirements must be given to the proponent within 28 days after the consultations are completed or within such further time as is agreed between the Director-General and the proponent,
(d)  written notice of the Director-General’s requirements must also be given to the relevant determining authority at the same time as it is given to the proponent,
(e)  if the environmental impact statement is not exhibited within 2 years after the notice is given, the applicant must consult further with the Director-General in relation to the preparation of the statement.
(2)  For the purposes of subclause (1), any requirements outstanding under clause 85 of the Environmental Planning and Assessment Regulation 1994 immediately before 1 January 2001 are taken to have been notified on 1 January 2001.
(3)  The Director-General may waive the requirement for consultation under this clause in relation to any particular activity or any particular kind of activity.
232   Determining authority may require additional copies of environmental impact statement
(cf clause 86 of EP&A Regulation 1994)
The determining authority may require the proponent of an activity to give it as many additional copies of the environmental impact statement as are reasonably required for the purposes of the Act.
Division 3 Public participation
233   What is the form for a section 113 notice?
For the purposes of section 113 of the Act, the prescribed form in which a notice under that section is to be prepared is a form that, in addition to the matters required by section 113 (1) of the Act, includes the following matters:
(a)  the following heading in capital letters and bold type:“ASSESSMENT OF ENVIRONMENTAL IMPACT OF (a title description of the proposed activity and its location)—PUBLIC EXHIBITION
(b)  a brief description of the proposed activity and its locality,
(c)  the name of the proponent,
(d)  a statement of the places, dates and times for inspection of the environmental impact statement,
(e)  a statement that any person may, before the specified closing date, make written representations to the determining authority about the proposed activity.
234   In what manner must a section 113 notice be given?
(cf clause 87 of EP&A Regulation 1994)
(1)  For the purposes of section 113 of the Act, the prescribed manner in which a notice under that section is to be given in relation to an environmental impact statement is by causing notice of the places, dates and times where the statement may be inspected to be published on at least 2 separate occasions:
(a)  in a daily newspaper circulating generally throughout the State, and
(b)  in a local newspaper,
so as to appear across 2 or 3 columns in the display section of those newspapers.
(2)  The period of 30 days referred to in section 113 (1) of the Act begins on:
(a)  the date on which the notice is first published in the daily newspaper circulating generally throughout the State, or
(b)  the date on which the notice is first published in the local newspaper,
whichever is the later.
235   Where may an environmental impact statement be inspected?
(cf clause 88 of EP&A Regulation 1994)
In addition to the places referred to in section 113 (1) of the Act, a determining authority must make copies of the relevant environmental impact statement available for public inspection, on the same dates and during the same times, at the following places:
(a)  the principal office of the council in whose area the proposed activity is to be carried out,
(b)    (Repealed)
(c)  the Sydney office of The Environment Centre (NSW) Pty Ltd.
Division 4 Public access
236   Determining authority may sell copies of environmental impact statement to the public
(cf clause 89 of EP&A Regulation 1994)
(1)  Copies of an environmental impact statement may be sold by a determining authority to any member of the public for not more than $25 per copy.
(2)  A determining authority:
(a)  must pay the proceeds of sale to the proponent responsible for the preparation of the statement, and
(b)  must return to the proponent any unsold copies of the statement.
237   Documents adopted or referred to by environmental impact statement
(cf clause 90 of EP&A Regulation 1994)
(1)  Any document adopted or referred to by an environmental impact statement is taken to form part of the statement.
(2)  Nothing in this Part requires the proponent responsible for the preparation of an environmental impact statement to supply any person with a document that is publicly available.
Division 5 Public participation—modification of Minister’s approval where no environmental impact statement required
237A   Application
This Division applies in relation to the provisions of Division 4 of Part 5 of the Act, as in force immediately before their repeal, to the extent that those provisions continue to apply to an activity by the operation of a transitional provision made by or under the Act.
238   Particulars of proposed modification to be publicly exhibited
(cf clause 90A of EP&A Regulation 1994)
(1)  For the purposes of section 115BA (5) (b) of the Act, particulars of a proposed modification of an approved activity must be publicly exhibited in accordance with this Division.
(2)  In this Division, particulars of a proposed modification include a description of the modification to be made to the approved activity and the locality of the proposed modified activity.
239   Notice to be given of the public exhibition of the proposed modification
(cf clause 90B of EP&A Regulation 1994)
(1)  Notice of the period during which the particulars of the proposed modification may be inspected and the places and times for inspection:
(a)  must be published in a local newspaper circulating in the locality of the proposed modified activity, and
(b)  must be published in the newspaper on at least 2 separate occasions before the start of that inspection period, and
(c)  must appear in the display section of the newspaper.
(2)  The notice must include the following matters:
(a)  the following heading in capital letters and bold type:“PROPOSED MODIFICATION TO (a title description of approved activity and its location)—PUBLIC EXHIBITION
(b)  brief particulars of the proposed modification,
(c)  the name of the proponent,
(d)  a statement of the period during which the particulars of the proposed modification may be inspected and the places and times for inspection,
(e)  a statement that any person may, before the end of that inspection period, make written representations to the proponent about the proposed modification.
240   Where may the proposed modification be inspected?
(cf clause 90C of EP&A Regulation 1994)
The particulars of the proposed modification are to be available for inspection during the inspection period specified in the notice under clause 241:
(a)  at the principal office of the proponent and the Department, and
(b)  at the office of the proponent and the Department closest to the locality in which the proposed modified activity is to be carried out, and
(c)  at the principal office of the council for the area in which the proposed modified activity is to be carried out, and
(d)  at the Sydney office of the Environment Centre (New South Wales) Pty Ltd.
241   Period of exhibition of proposed modification
(cf clause 90D of EP&A Regulation 1994)
The particulars of the proposed modification are to be available for inspection for a period of at least 14 days beginning on the day following the second occasion on which the relevant notice is published under clause 239.
242   Representations on proposed modification
(cf clause 90E of EP&A Regulation 1994)
(1)  Any person may, during the inspection period specified in the notice under clause 239, inspect the particulars of the proposed modification and may, before the end of that inspection period, make written representations to the proponent about the proposed modification.
(2)  The proponent must include, in the request to the Minister for the modification of the relevant approval, a copy of any written representations made to the proponent in accordance with this clause.
Division 6 General
243   Report to be prepared for activities to which an environmental impact statement relates
(cf clause 91 of EP&A Regulation 1994)
(1)  A determining authority for an activity must prepare a report on any activity for which an environmental impact statement has been prepared.
(2)  The report must be prepared as soon as practicable after a decision is made by the determining authority to carry out or refrain from carrying out the activity or to approve or disapprove the carrying out of the activity.
(3)  The report must comment on, and have regard to, each of the following matters:
(a)  the environmental impact statement,
(b)  any representations duly made to it about the proposed activity,
(c)  the effects of the proposed activity on the environment,
(d)  the proponent’s proposals to mitigate any adverse effects of the activity on the environment,
(e)  the findings and recommendations of:
(i)  any report given to it by the Director-General under section 113 of the Act, and
(ii)  any advice given to it by the Minister under section 114 of the Act, and
(iii)  any review by the Planning Assessment Commission,
with respect to the proposed activity.
(4)  The report must also give full particulars of the determining authority’s decision on the proposed activity and, if the authority has granted approval to the carrying out of the activity, any conditions or modifications imposed or required by the authority in connection with the carrying out of the activity.
(5)  The determining authority must make the report public as soon as practicable after it has been completed and must send a copy of the report to the council of each area that is, or would have been, affected by the activity.
(6)  The requirements of subclause (5):
(a)  are subject to any prohibition or restriction arising from a direction under clause 268U, but to the extent only of the prohibition or restriction, and
(b)  do not apply to an activity to which Division 4 of Part 5 of the Act applies.
244   Concurrence or consultation with Director-General of National Parks and Wildlife
(cf clause 91B of EP&A Regulation 1994)
For the purposes of section 112C (3) of the Act, the provisions of Division 2 of Part 6 of this Regulation apply (with such modifications as may be necessary) to and in respect of the granting of concurrence under section 112C of the Act in the same way as they apply to and in respect of the granting of concurrence under section 79B of the Act.
Division 7 Fisheries management
244A   Definitions
In this Division:
fisheries approval has the same meaning as in Division 5 of Part 5 of the Act.
Fisheries Minister has the same meaning as in Division 5 of Part 5 of the Act.
fishing activity has the same meaning as in the Fisheries Management Act 1994.
shark meshing means the placing of nets by the Fisheries Minister around beaches and other waters to protect the public from sharks.
244B   Fishing activities and shark meshing
(1)  For the purposes of the definition of activity in section 110 (1) of the Act, a fishing activity carried out pursuant to a fisheries approval that is issued or renewed before 31 August 2009 for a period of not more than 12 months is prescribed not to be such an activity.
(2)  For the purposes of the definition of activity in section 110 (1) of the Act, shark meshing carried out at any time before 31 August 2009 is prescribed not to be such an activity.
(3)  This clause does not apply to or in respect of aquaculture, within the meaning of the Fisheries Management Act 1994.
244C   (Repealed)
Division 8 Special provisions relating to Australian Rail Track Corporation Ltd
244D   Definitions
In this Division:
activities for the purposes of ARTC rail infrastructure facilities includes activities (within the meaning of Part 5 of the Act) for any one or more of the following purposes:
(a)  development for the purposes of the construction, maintenance or operation of ARTC rail infrastructure facilities,
(b)  geotechnical investigations relating to ARTC rail infrastructure facilities,
(c)  environmental management and pollution control relating to ARTC rail infrastructure facilities,
(d)  access for the purpose of the construction, maintenance or operation of ARTC rail infrastructure facilities,
(e)  temporary construction sites and storage areas, including temporary batching plants, the storage of plant and equipment and the stockpiling of excavated material.
approved Code means a Code prepared by ARTC and approved by the Minister under this Division.
ARTC means the Australian Rail Track Corporation Ltd.
ARTC arrangement means a lease, licence or other arrangement under Part 8A of the Transport Administration Act 1988.
ARTC lease or licence means a lease or licence under Part 8A of the Transport Administration Act 1988.
ARTC rail infrastructure facilities means rail infrastructure facilities owned by ARTC or a rail authority that are:
(a)  situated on land subject to an ARTC arrangement, or
(b)  subject to an ARTC arrangement.
rail infrastructure facilities has the same meaning as it has in Part 8A of the Transport Administration Act 1988.
wetlands affected activity means a project for the purposes of ARTC rail infrastructure facilities (other than a project listed in Schedule 1 to State Environmental Planning Policy (ARTC Rail Infrastructure) 2004) that, but for clause 5 (2) (b) of that Policy, would include designated development under State Environmental Planning Policy No 14—Coastal Wetlands or State Environmental Planning Policy No 26—Littoral Rainforests.
244E   Code required for rail infrastructure facilities must be complied with by ARTC
(1)  ARTC must comply with the requirements of an approved Code in respect of an activity for the purposes of ARTC rail infrastructure facilities if a Code is in force under this Part in relation to the activity.
(2)  However, ARTC is not required to comply with subclause (1) if the Minister gives written notice to ARTC that the activity is not required to be covered by, or dealt with in accordance with, an approved Code.
(3)  An exemption under subclause (2) may be made subject to conditions and may be revoked or varied at any time.
(4)    (Repealed)
244F   Approved Code
(1)  ARTC must prepare a Code and make an application to the Director-General for approval of the Code.
(1A)  The Code is to apply to activities for the purposes of ARTC rail infrastructure facilities, other than activities for which ARTC is required to furnish or obtain an environmental impact statement.
(2)  The Director-General is to assess an application for approval of a Code and to provide a report to the Minister on any such application as soon as practicable after receiving an application.
(3)  The Minister may approve a Code prepared by ARTC for the purposes of this Part and may specify the period for which the approval is in force.
(4)  The Minister must give ARTC written notice of any approval or refusal to approve a Code. In the case of a refusal, the notice is to set out reasons for the refusal.
(5)  An approval may be made subject to conditions and may be revoked or varied at any time.
(6)  A Code approved for the purposes of this clause must contain the following matters:
(a)  classes of activities for the purposes of the application of the Code,
(b)  assessment requirements for specified activities or classes of activities,
(c)  procedures for carrying out assessments,
(d)  protocols for consultation,
(e)  requirements for consideration of any advice by the Director-General,
(f)  requirements for consideration of environmental management procedures in relation to effects on the environment of activities,
(g)  requirements for documentation,
(h)  protocols for the availability of documentation to the Minister, the Director-General and the public,
(i)  protocols for auditing the performance of and compliance with the Code,
(j)  any other matters required by the Minister.
244G   Circumstances in which an environmental impact statement is or is not required for ARTC rail infrastructure facilities (other than wetlands affected activities)
(1)  This clause takes effect on 1 September 2005 or on such later date as the Minister may approve.
(2)  For the purposes of section 112 (1) of the Act, an activity for the purposes of ARTC rail infrastructure facilities (other than an activity for which an environmental impact statement must be obtained under section 244H) is a prescribed activity for which an environmental impact statement must be furnished or obtained.
(3)  However, an activity for those purposes is not a prescribed activity for the purposes of section 112 (1) of the Act if:
(a)  the Minister gives written notice to ARTC that the activity is not an activity covered by subclause (2), or
(b)  an approved Code is in force in relation to the activity, or
(c)  an exemption is in force under clause 244E (2) in relation to the activity.
(4)  An exemption under subclause (3) may be made subject to conditions and may be revoked or varied at any time.
(5)  This Division does not affect any requirement (other than a requirement arising under this Division) arising under Part 5 of the Act in relation to an activity for the purposes of ARTC rail infrastructure facilities.
244H   Wetlands affected activities that require environmental impact statements
(1)  For the purposes of section 112 (1) of the Act, a wetlands affected activity is a prescribed activity for which an environmental impact statement must be furnished or obtained.
(2)  Subclause (1) does not apply to a wetlands affected activity if the only part of the project concerned that relates to land and development affected by State Environmental Planning Policy No 14—Coastal Wetlands or State Environmental Planning Policy No 26—Littoral Rainforests concerns the maintenance or operation of rail infrastructure facilities.
244I   Existing environmental impact statements and assessments
To avoid doubt, the preparation of an environmental impact statement and any other thing done under Part 5 of the Act before the commencement of this clause in connection with rail infrastructure facilities or a wetlands affected activity are taken to have been done for the purposes of the preparation of an environmental impact statement or other thing under that Part as a result of the operation of this Division.
244J   Continuing application of Division 4 of Part 5 of Act to Sandgate rail project
(1)  This clause is made under clause 1 of Schedule 6 to the Act, as a consequence of the enactment of the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005.
(2)  The clause relating to pending or previous matters under Division 4 of Part 5 of the Act, as inserted in Schedule 6 to the Act by Schedule 1 [33] to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005, applies to the Sandgate rail project in the same way as it applies to an activity for which the Minister’s approval was sought under Division 4 of Part 5 of the Act before its repeal.
(3)  To avoid doubt, an application for the Minister’s approval in relation to the Sandgate rail project may be made under Division 4 of Part 5 of the Act, and that Division continues to apply to any such application, as if the Division had not been repealed.
(4)  In this clause:
Sandgate rail project means the proposed project relating to a grade separation of the rail lines at Sandgate, as described in the environmental impact statement for the Sandgate Rail Grade Separation, prepared by GHD Pty Ltd and dated 18 March 2005 (as modified by the Representations Report for the Sandgate Rail Grade Separation prepared by GHD Pty Ltd and dated July 2005).