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Contents (2000 - 557)
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Environmental Planning and Assessment Regulation 2000
Current version for 13 September 2019 to date (accessed 17 November 2019 at 10:42)
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 5.1 (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 animals (within the meaning of the Biodiversity Conservation Act 2016),
(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,
(p)  any impact on coastal processes and coastal hazards, including those under projected climate change conditions.
(3)  For the purposes of this clause, the Planning Secretary 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 Planning Secretary may vary or revoke any guidelines in force under this clause.
Division 2
229–232  (Repealed)
Division 3 Public participation
233   What is the form for a section 5.8 notice?
For the purposes of section 5.8 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 5.8 (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 5.8 notice be given?
(cf clause 87 of EP&A Regulation 1994)
(1)  For the purposes of section 5.8 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 5.8 (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 5.8 (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
236, 237  (Repealed)
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 Planning Secretary under section 5.8 of the Act, and
(ii)  any advice given to it by the Minister under section 5.9 of the Act, and
(iii)  any public hearing by the Independent Planning 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   (Repealed)
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 5.1 (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 5.1 (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 (ACN 081 455 754).
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 (within the meaning of Part 8A of the Transport Administration Act 1988) 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 Division 15 of Part 3 of State Environmental Planning Policy (Infrastructure) 2007.
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 Planning Secretary 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, or development that is a Part 3A project.
(2)  The Planning Secretary 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 Planning Secretary,
(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 Planning Secretary and the public,
(i)  protocols for auditing the performance of and compliance with the Code,
(j)  any other matters required by the Minister.
244G, 244H   (Repealed)
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.
Division 9 Special provisions relating to electricity distributors and transmission operators
244J   Definitions
In this Division—
activity for the purposes of a transacted electricity transmission or distribution network 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 a transacted electricity transmission or distribution network,
(b)  geotechnical investigations relating to a transacted electricity transmission or distribution network,
(c)  environmental management and pollution control relating to a transacted electricity transmission or distribution network,
(d)  access for the purpose of the construction, maintenance or operation of a transacted electricity transmission or distribution network,
(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 approved by the Minister under this Division.
authorised network operator means an authorised network operator under the Electricity Network Assets (Authorised Transactions) Act 2015.
electricity transmission or distribution network has the same meaning as it has in Division 5 of Part 3 of State Environmental Planning Policy (Infrastructure) 2007.
transacted electricity transmission or distribution network means a transacted distribution system or transacted transmission system under the Electricity Network Assets (Authorised Transactions) Act 2015.
244K   Approved Code
(1)  An approved Code may make provision for or with respect to the exercise by an authorised network operator of its functions under section 5.5 of the Act in respect of an activity for the purposes of a transacted electricity transmission or distribution network.
(2)  An approved Code is not to apply to activities for the purposes of a transacted electricity transmission or distribution network for which the operator is required under Part 5 of the Act to furnish or obtain an environmental impact statement.
(3)  Without limitation, an approved Code may include provision for or with respect to any of the matters listed in section 5.6 (2) of the Act.
(4)  An approved Code may specify the period for which the approved Code is in force.
(5)  The Minister may by notice in writing to an authorised network operator exempt a specified activity of the operator from the operation of an approved Code. Such an exemption may be made subject to conditions and may be revoked or varied at any time by notice in writing to the operator.
244L   Procedure for approval of Code
(1)  The Minister may approve a Code for the purposes of this Division and may vary or revoke an approved Code.
(2)  An approval of a Code, or a variation or revocation of an approved Code, takes effect when notice of it is published in the Gazette or on such later date as is specified in the approval, variation or revocation.
(3)  The Minister must, before varying or revoking a Code or approving a Code as a replacement for an existing Code, give each authorised network operator who will be affected by it notice of the proposal and an opportunity to make submissions on the proposal. The Minister must take into account any submission made by an authorised network operator within 20 business days after the operator was given notice of the proposal.
Division 10 Special provisions relating to proprietors of registered non-government schools
244M   Definitions
In this Division—
activities for the purposes of an existing school means activities (within the meaning of Part 5 of the Act) for the purpose of development that is permitted without consent under clause 36 of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017.
approved Code means a Code approved by the Minister under this Division.
244N   Approved Code must be complied with
(1)  An approved Code may make provision for or with respect to the exercise by a proprietor of a registered non-government school of its functions under section 5.5 of the Act in respect of activities for the purposes of an existing school.
(2)  An approved Code is not to apply to activities for the purposes of an existing school for which the proprietor is required under Part 5 of the Act to furnish or obtain an environmental impact statement.
(3)  Without limitation, an approved Code may include provision for or with respect to any of the matters listed in section 5.6 (2) of the Act.
(4)  An approved Code may specify the period for which the approved Code is in force.
(5)  The Minister may, by notice in writing to a proprietor of a registered non-government school, exempt a specified activity from the operation of an approved Code. An exemption may be made subject to conditions and may be revoked or varied at any time by notice in writing to the proprietor.
244O   Procedure for approval of Code
(1)  The Minister may approve a Code for the purposes of this Division and may vary or revoke an approved Code.
(2)  An approval of a Code, or a variation or revocation of an approved Code, takes effect when notice of it is published in the Gazette or on such later date as is specified in the approval, variation or revocation.
244P   Offences against specified approved Code
(1)  A proprietor of a registered non-government school must comply with the following requirements of the NSW Code of Practice for Part 5 Activities for registered non-government schools in respect of activities for the purposes of an existing school (other than an activity that is the subject of an exemption in relation to the proprietor under clause 244N (5))—
(a)  the mandatory requirements for consultation in clause 3.3.3 of the Code,
(b)  the mandatory requirements relating to assessment documentation in clause 3.4.1 of the Code,
(c)  the mandatory requirements relating to determination documentation in clause 3.5.1 of the Code,
(d)  the mandatory requirements relating to record keeping in clause 5.1 of the Code,
(e)  the mandatory requirements relating to public access to records in clause 5.2 of the Code,
(f)  the mandatory requirements relating to self-reporting of breaches of the Code in clause 6.2 of the Code,
(g)  the mandatory requirements relating to audits in clause 6.3.1 of the Code.
(2)  In this clause—
NSW Code of Practice for Part 5 Activities for registered non-government schools means the approved Code of that name, notice of the making of which was published in the Gazette on 1 September 2017.