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Contents (2000 - 557)
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Environmental Planning and Assessment Regulation 2000
Current version for 1 September 2017 to date (accessed 22 September 2017 at 10:59)
Part 1A
Part 1A Transitional Part 3A projects
8A   Definitions
(1)  In this Part:
environmental assessment requirements for a project (including a concept plan for a project) means environmental assessment requirements prepared by the Secretary under section 75F of the Act.
project means development to which Part 3A of the Act applies.
project application means:
(a)  an application for the Minister’s approval to carry out a project under Part 3A of the Act, or
(b)  an application for the Minister’s approval for a concept plan for a project under Part 3A of the Act, or
(c)  a single application for both an approval to carry out a project under Part 3A of the Act and for a concept plan for a project under that Part.
(2)  In this Part:
(a)  a reference to the end of the public consultation period for a project or concept plan is a reference to the end of the period of 30 days referred to in section 75H (3) of the Act in relation to the project or concept plan, and
(b)  a reference to the end of the proponent’s environmental assessment period for a project or concept plan is a reference to the time at which the proponent has complied with all of the Secretary’s requirements under section 75H of the Act.
(3)  In this Part, a reference to section 75F, 75H or 75I of the Act includes, in the case of a concept plan for a project, a reference to any such section as applied by section 75N of the Act.
8B   Matters for environmental assessment and Ministerial consideration
The Secretary’s report under section 75I of the Act in relation to a project is to include the following matters (to the extent that those matters are not otherwise included in that report in accordance with the requirements of that section):
(a)  an assessment of the environmental impact of the project,
(b)  any aspect of the public interest that the Secretary considers relevant to the project,
(c)  the suitability of the site for the project,
(d)  copies of submissions received by the Secretary in connection with public consultation under section 75H or a summary of the issues raised in those submissions.
Note.
 Section 75J (2) of the Act requires the Minister to consider the Secretary’s report (and the reports, advice and recommendations contained in it) when deciding whether or not to approve the carrying out of a project.
8C   Time limits for dealing with applications and other matters
The following time limits are prescribed for dealing with applications and other matters under Part 3A of the Act:
(a)  The time within which the Secretary is to notify the proponent of environmental assessment requirements with respect to a project or concept plan is 28 days after the proponent requests the Secretary to prepare those requirements.
(b)  The time within which the Secretary is to accept the environmental assessment with respect to a project or concept plan, or require the proponent to submit a revised environmental assessment, under section 75H of the Act is 21 days after the environmental assessment is received by the Secretary.
(c)  The time within which the Secretary is required to send copies of submissions received or a report of the issues raised in those submissions to the proponent and others under section 75H (5) of the Act (or to notify the proponent that no submissions were received) is 10 days after the end of the public consultation period for the project or concept plan.
8D   Rejection of applications if proponent fails to comply with requirements
(1)  This clause applies to project applications.
(2)  If:
(a)  any such application has not been duly made, and
(b)  the Secretary has notified the proponent of the action required to ensure that the application is duly made, and
(c)  the proponent has failed to take that action within 14 days after being so notified,
the Minister may decide to reject the application without determining whether to approve or disapprove of the carrying out of the project or to give or refuse to give approval for the concept plan (as the case requires).
(3)  If:
(a)  the proponent has failed to comply with the Secretary’s requirements under section 75H of the Act in connection with an application, and
(b)  the Secretary has notified the proponent of the requirements that have not been complied with, and
(c)  the proponent has failed to comply with those requirements within 21 days after being so notified,
the Minister may decide to reject the application without determining whether to approve or disapprove of the carrying out of the project or to give or refuse to give approval for the concept plan (as the case requires).
(4)  An application is taken to be rejected and never to have been made when the proponent is given notice of the Minister’s decision to reject the application under this clause.
(5)  The Secretary must refund to the proponent the whole of any fee paid in connection with an application that is rejected under this clause.
8E   Provisions relating to appeals
(1) Date of receipt of notice of determination For the purposes of determining the commencement of the appeal period under section 75K (2) (a), 75L (3) or 75Q (2) (a) of the Act, notice of the determination concerned is received on the date that the notice is received (or taken to have been received) in accordance with section 153 of the Act.
(2) Proponent appeal relating to approval of project—deemed refusal For the purposes of section 75K (2) (b) of the Act, the date on which a pending application for approval to carry out a project is taken to have been refused for the purposes only of enabling an appeal within 3 months after the date of the deemed refusal is as follows:
(a)  60 days from the end of the proponent’s environmental assessment period for the project, except as provided by paragraph (b) or (c),
(b)  120 days from the end of that period if the Secretary notifies the proponent, when notifying the environmental assessment requirements for the project, that the project involves a complex environmental assessment and approval process,
(c)  30 days from the end of that period if the Secretary notifies the proponent, when notifying the environmental assessment requirements for the project, that the project does not involve a complex environmental assessment and approval process.
(3) Proponent appeal relating to concept plan or modification of concept plan—deemed refusal For the purposes of section 75Q (2) (b) of the Act, the date on which a pending application for approval of a concept plan or to modify a concept plan is taken to have been refused for the purposes only of enabling an appeal within 3 months after the date of the deemed refusal is as follows:
(a)  60 days from the end of the proponent’s environmental assessment period for the concept plan, except as provided by paragraph (b) or (c),
(b)  120 days from the end of that period if the Secretary notifies the proponent, when notifying the environmental assessment requirements for the concept plan, that the concept plan involves a complex environmental assessment and approval process,
(c)  30 days from the end of that period if the Secretary notifies the proponent, when notifying the environmental assessment requirements for the concept plan, that the concept plan does not involve a complex environmental assessment and approval process.
(4) Proponent appeal relating to modifications of approval The time within which an appeal may be made under section 75W (5) of the Act is 3 months after:
(a)  the date on which the proponent received (or is taken to have received) notice of the determination of the request for a modification of the approval for a project in accordance with section 153 of the Act, or
(b)  the expiration of the period of 40 days after the request for the modification was made during which the Minister has failed to determine the request.
8F   Owner’s consent or notification
(1)  The consent of the owner of land on which a project is to be carried out is required for a project application or modification application unless:
(a)  the application is made by a public authority, or
(b)  the application relates to a critical infrastructure project, or
(c)  the application relates to a mining or petroleum production project, or
(d)  the application relates to a linear infrastructure project, or
(e)  the application relates to a project on land with multiple owners designated by the Secretary for the purposes of this clause.
(1A)  The consent of the New South Wales Aboriginal Land Council is required for a project application or modification application relating to land owned by a Local Aboriginal Land Council if the consent of the Local Aboriginal Land Council is required as owner of the land to the application.
(2)  Any such consent may be obtained at any time before the determination of the application.
(3)  If the consent of the owner of the land is not required for a project application under this clause, then the proponent is required to give notice of the application:
(a)  in the case of a linear infrastructure project or a project designated under subclause (1) (e)—to the public by advertisement published in a newspaper circulating in the area of the project before the start of the public consultation period for the project, or
(b)  in the case of a project that comprises mining or petroleum production (other than a project that also comprises a linear infrastructure project)—to the public by advertisement published in a newspaper circulating in the area of the project before the end of the period of 14 days after the application is made, or
(c)  in the case of a critical infrastructure project (other than a project that also comprises a linear infrastructure project or mining or petroleum production project)—to the owner of the land before the end of period of 14 days after the application is made, or
(d)  in any other case—to the owner of the land at any time before the application is made.
(4)  In this section:
linear infrastructure project means development for the purposes of linear transport or public utility infrastructure.
mining or petroleum production includes any activity that is related to mining or petroleum production, but does not include any activity to the extent that it is carried out on land that is a state conservation area reserved under the National Parks and Wildlife Act 1974.
modification application means a request for modification of approval for a project under section 75W of the Act.
8G   Public information about documents relating to projects
(1)  This clause applies to the duty of the Secretary under section 75X (2) of the Act to make specified documents relating to a project publicly available.
(2)  The documents are to be made available on the Department’s website and in such other locations as the Secretary determines.
(3)  The documents are to be posted on the Department’s website and in those other locations within 14 days of:
(a)  in the case of a document that is an application, request or submission—the date on which the application, request or submission is made, or
(b)  in the case of a document that is a determination of environmental assessment requirements, a report or an approval—the date on which the determination, report or approval is made or given.
(4)  In addition to the documents referred to in section 75X (2) of the Act, the Secretary is to include on the Department’s website and in such other locations as the Secretary determines the following documents:
(a)  the declaration of development as a project to which Part 3A of the Act applies or its declaration as a critical infrastructure project,
(b)  guidelines published under section 75F or 75H of the Act,
(c)  any environmental assessment in relation to a project that has been placed on public exhibition under section 75H of the Act,
(d)  responses to submissions, preferred project reports and other material in relation to a project provided to the Secretary by the proponent after the end of the public consultation period (whether under section 75H (6) of the Act or otherwise),
(e)  reports of panels under section 75G of the Act (as in force before its repeal) or of reviews by the Planning Assessment Commission or reports by the Planning Assessment Commission where a public hearing has been held,
(f)  any reasons given to the proponent by the Minister as referred to in section 75X (3) of the Act.
(5)  A document may be made available on the Department’s website by providing an electronic link to the document on another website.
8H   Fees
The fees for applications and exercise of functions under Part 3A of the Act are as set out in Part 15 of this Regulation.
8I   Enforcement: critical infrastructure
In accordance with section 75R (5) of the Act, Division 2A of Part 6 of the Act applies to a critical infrastructure project only to the extent that it authorises the Minister or the Secretary to give an order or exercise any other function under that Division.
8J   Transitional provisions
(1AA)  The Secretary may accept, as an application for approval of a project under Part 3A of the Act, any development application made under Part 4 of the Act with respect to any development before it becomes a project to which Part 3A of the Act applies. The Secretary may, for that purpose, require any matter to be provided by the applicant that he or she could require to be included in the application under section 75E of the Act.
(1)  The Secretary may adopt (with or without modification), as environmental assessment requirements for a project or concept plan, environmental assessment requirements issued by the Secretary under Part 4 or Part 5 of the Act with respect to any development or activity before it becomes a project to which Part 3A of the Act applies.
(2)  The Secretary may accept (with or without modification), as an environmental assessment for a project or part of a project or concept plan:
(a)  an environmental impact statement obtained in accordance with the requirements of the Secretary under Part 4 or Part 5 of the Act with respect to any development or activity before it becomes a project or part of a project to which Part 3A of the Act applies, or
(b)  a statement of environmental effects (as referred to in clause 2 (1) (c) of Schedule 1) prepared in connection with the development concerned before it becomes a project or part of a project to which Part 3A of the Act applies, or
(c)  a written assessment arising out of the consideration, under section 111 of the Act, of the environmental impact of an activity and prepared before the activity becomes a project or part of a project to which Part 3A of the Act applies.
(2A)  If the Secretary accepts (with or without modification) an environmental impact statement, a statement of environmental effects or a written assessment as an environmental assessment for a project or part of a project or a concept plan:
(a)  the Secretary is taken to have prepared environmental assessment requirements in respect of the project or part of a project or concept plan, and
(b)  the environmental assessment as so accepted is taken to comply with those requirements.
(3)  The Secretary may accept, as a period of public availability of the environmental assessment for a project or part of a project or concept plan (under section 75H (3) of the Act), a period of public exhibition of an environmental impact statement or a statement of environmental effects referred to in subclause (2) before the relevant development or activity becomes a project or part of a project to which Part 3A of the Act applies. For that purpose, and to avoid doubt, if the period of public exhibition is less than 30 days, it is accepted only to the extent of the actual period of public exhibition.
(3A)  If any such period of public exhibition of an environmental impact statement or a statement of environmental effects is accepted by the Secretary, the proponent must provide the Secretary with any written submissions made during the public exhibition period in relation to the relevant development or activity.
(4)  Despite its repeal, section 88A of the Act continues to apply (and Parts 3A and 5.1 and Division 4.1 of Part 4 of the Act do not apply) to development that is the subject of a development application that was directed to be referred to the Minister under that section before its repeal.
(4A)  If a development application is made after the commencement of Part 3A of the Act in respect of any development that:
(a)  was, immediately before the repeal of section 89 of the Act, the subject of a direction under that section, and
(b)  is not a project to which Part 3A of the Act applies,
the Minister may direct that the application is to be determined (unless the development application is withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made.
(5)  If a development application is made after the commencement of Part 3A of the Act in respect of any development that, immediately before the commencement of Part 3A, was declared to be State significant development by notice in force under section 76A (7) of the Act, the Minister may direct that the application is to be determined (unless the development application is withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made.
(6)  Clause 89 of Part 17 to Schedule 6 to the Act extends to development applications pending on the commencement of Part 3A of the Act for development that was State significant development on the commencement of the State Environmental Planning Policy (State Significant Development) 2005.
(7)  If:
(a)  a development application was made before the commencement of Part 3A of the Act on the basis that the development was State significant development, and
(b)  the Minister is required to form an opinion that the development is State significant development in order to determine the application on that basis (but the Minister had not, before that commencement, formed an opinion on the matter),
the Minister may, after that commencement, form an opinion that the development was, at the time the application was made, State significant development. In that case, the application is to be determined (unless withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made.
Note.
 The references to State significant development in this subclause refer to the meaning that term had before the commencement of Part 3A and not to its current meaning.
(8)  For the purposes only of modification, the following development consents are taken to be approvals under Part 3A of the Act and section 75W of the Act applies to any modification of such a consent:
(a)  a development consent granted by the Minister under section 100A or 101 of the Act,
(c)  a development consent granted by the Minister under Part 4 of the Act (relating to State significant development) before 1 August 2005 or under clause 89 of Schedule 6 to the Act,
(d)  a development consent granted by the Land and Environment Court, if the original consent authority was the Minister and the consent was of a kind referred to in paragraph (c).
The development consent, if so modified, does not become an approval under Part 3A of the Act.
(8A)  Subclause (8), as in force before its substitution by the Environmental Planning and Assessment Amendment (Miscellaneous) Regulation 2010, applies to any development consent for which approval for the treatment of the consent as an approval for the purposes of section 75W of the Act:
(a)  was given before that substitution, or
(b)  is given after that substitution, but where the application for the approval was made before that substitution.
(8B)  The Secretary may waive any fee payable in respect of an application under section 75W of the Act if the application relates to a development consent that is taken to be an approval under Part 3A of the Act and a fee has been paid in respect of the application under section 96 of the Act.
(9)  For the purposes of this clause, and to avoid doubt, a development application is made by a person when the person first applies to the consent authority for consent to carry out the particular development, whether or not the application at that time had been consented to by the owner of the land to which the development application relates.
8K   Transitional provision—existing mining leases
(1)  Despite its repeal by Schedule 7.11 to the Amending Act, section 74 of the Mining Act 1992 (Mining unaffected by Environmental Planning and Assessment Act 1979) continues to have effect in respect of an existing mining lease in respect of which mining operations are carried out underground until:
(a)  the end of the relevant transition period, or
(b)  such time as an approval is given to carry out mining operations in the mining area,
whichever is the sooner.
(2)  However, if any such approval is limited to the carrying out of mining operations in a part of the mining area only, section 74 of the Mining Act 1992 continues to have effect in respect of so much of the existing mining lease as relates to the other parts of the mining area, but only until the end of the relevant transition period or until such time as an approval is given to carry out mining operations in those other parts (whichever is the sooner).
(3)  In this clause:
approval means an approval under Part 3A of the Act, but does not include the approval of a concept plan under that Part.
existing mining lease means a mining lease in force immediately before 16 December 2005.
mining area, mining lease and mining operations have the same meanings as in the Mining Act 1992.
relevant transition period means:
(a)  the period ending on 30 September 2012 if, on or before 16 December 2010, the Secretary has notified environmental assessment requirements under section 75F (3) of the Act for approval to carry out mining operations in the mining area, or
(b)  the period ending on 16 December 2010, in any other case.
8L   Transitional provision—objections under Mining Act in relation to Part 3A projects
(1)  The reference in clause 28 (b) of Schedule 1 to the Mining Act 1992 to any person who is entitled to make submissions in relation to the granting of development consent to use land for the purpose of obtaining minerals or for one or more mining purposes (the relevant development) is taken to include:
(a)  if the relevant development is development to which Part 3A of the Act applies—a reference to any person who is entitled, under section 75H of the Act, to make a written submission in relation to the approval of that project, or
(b)  if the Secretary has, under clause 8J (3) of this Regulation, accepted a period of public exhibition of an environmental impact assessment with respect to the relevant development before it becomes a project to which Part 3A of the Act applies—a reference to any person who was entitled to make a written submission during the public exhibition period in relation to the relevant development.
(2)  Pursuant to Part 1 of Schedule 6 to the Act, this clause is taken to have commenced on the commencement of Part 3A of the Act.
8M   Transitional provisions—development consents under Part 4 of the Act and approvals under Part 5 of the Act
(1)  If development is declared to be a project under Part 3A of the Act, any development consent under Part 4 of the Act or approval under Part 5 of the Act that applies to the project or land on which the project is to be carried out continues in force despite that declaration.
(2)  If a declaration of a project under Part 3A of the Act is revoked before or after approval has been given under that Part to carry out the project, the Minister may make any of the following determinations:
(a)  that the whole or part of the effect of the approval is preserved and is taken to be a development consent granted under Part 4 of the Act by an appropriate consent authority nominated by the Minister,
(b)  that the whole or a specified part of an action under Part 4 or Part 5 of the Act in respect of the whole or part of a project is revived and has effect,
(c)  that an environmental assessment under Part 3A of the Act is to be recognised for the purpose of complying with a specified environmental assessment requirement under Part 4 or Part 5 of the Act.
(3)  A determination of the Minister under subclause (2) has effect on the revocation of the declaration of the project.
(4)  Subclause (2) does not apply if a project ceases to be a project to which Part 3A of the Act applies because of section 75P (1) (b) of the Act.
8N   Projects or concept plans for which approval may not be given concerning environmentally sensitive land or sensitive coastal locations
(1)  For the purposes of sections 75J (3) and 75O (3) of the Act, approval for a project application may not be given under Part 3A of the Act for any project, or part of a project, that:
(a)  is located within an environmentally sensitive area of State significance or a sensitive coastal location, and
(b)  is prohibited by an environmental planning instrument that would not (because of section 75R of the Act) apply to the project if approved.
(2)  To avoid doubt, a project is not prohibited for the purposes of subclause (1) (b) if:
(a)  it is not permitted because of the application of a development standard under the environmental planning instrument, or
(b)  it is prohibited under the environmental planning instrument but is permitted to be carried out because of the application of another environmental planning instrument to the environmental planning instrument.
(3)  In this clause:
environmentally sensitive area of State significance has the same meaning as it has in State Environmental Planning Policy (State and Regional Development) 2011.
sensitive coastal location has the same meaning as it has in Schedule 4A to the Act.
8O   Other projects prohibited by environmental planning instruments for which project approval may not be given
(1)  For the purposes of section 75J (3) of the Act, approval for the carrying out of a project may not be given under Part 3A of the Act for any project, or part of a project, that:
(a)  is not the subject of an authorisation or requirement under section 75M of the Act to apply for approval of a concept plan, and
(b)  is prohibited by an environmental planning instrument that would not (because of section 75R of the Act) apply to the project if approved.
(2)  To avoid doubt, a project is not prohibited for the purposes of subclause (1) (b) if:
(a)  it is not permitted because of the application of a development standard under the environmental planning instrument, or
(b)  it is prohibited under the environmental planning instrument but is permitted to be carried out because of the application of another environmental planning instrument to the environmental planning instrument.
(3)  This clause does not apply to a project for which the giving of approval is prohibited by clause 8N.
8OA   Transitional provision—projects or concept plans otherwise prohibited for which approval may be given
Clauses 8N and 8O do not apply to a project application if, before the commencement of those clauses, the Secretary had notified the proponent of environmental assessment requirements under section 75F of the Act relating to the project, or part of the project, concerned.
8P   Surrender of approvals given under Part 3A of the Act or existing use rights
(1)  A surrender of an approval under Part 3A of the Act or a right conferred by Division 10 of Part 4 of the Act (referred to in section 75YA of the Act) is to be made by giving to the Secretary a notice in writing of the surrender of the approval or right.
(2)  The notice must contain the following information:
(a)  the name and address of the person by whom the notice is given,
(b)  the address, and formal particulars of title, of the land to which the approval or right relates,
(c)  a description of the approval or right to be surrendered,
(d)  if the person giving notice is not the owner of the land, a statement by the owner of the land to the effect that the owner consents to the surrender of the approval or right.
(3)  A duly signed and delivered notice of surrender of an approval or right conferred by Division 10 of Part 4 of the Act takes effect on the date determined by the Secretary and operates, according to its terms, to surrender the approval or right to which it relates.