understanding eia requirements, environmental assessments and approvals summit 2012

Understanding EIA Understanding EIA requirementsrequirements

Aaron BowdenAaron Bowden

Transport for NSWTransport for NSW

Monday, 28 May 2012 Aaron BowdenA/Senior Manager Planning, TfNSW

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Presentation overviewPresentation overview

Transport for NSW Planning approvals pathways Navigating the process:

Guidance Define the activity Permissibility Significance Legal precedents Ancillary development Subdivision Critical infrastructure Staging

Post-approval considerations – consistency assessment and modifications Opportunities for system improvement


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Personal backgroundPersonal background

Bachelor of Town Planning, UNSW

Department of Planning

Leichhardt Council

Randwick Council

Parsons Brinckerhoff

JBA Planning

Transport for NSW


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PreamblePreamble


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Announced by the Minister for Transport on 15 July 2011

Opportunity for the integration of planning, design, delivery, operation and maintenance of transport systems in NSW


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Transport ProjectsTransport Projects


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Environmental servicesEnvironmental services

Planning and Assessments

Environmental Management

Sustainability


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Planning approvals pathwaysPlanning approvals pathways

Environmental Planning & Assessment Act 1979 (NSW)

Protection of the Environment Operations Act 1997 (NSW)

Environment Protection & Biodiversity Conservation Act 1999 (Comm.)


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Planning approvals pathwaysPlanning approvals pathways

1. Exempt development

2. Complying development

3. Development with consent

4. State significant development

5. Development without consent

6. State significant infrastructure

7. Commonwealth controlled actions


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Exempt developmentExempt development

Introduced in 1997 as part of NSW Government reforms to streamline planning approvals

Minor works with minimal environmental impact

No need for development consent or building certification


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Exempt developmentExempt development

State Environmental Planning Policy (Infrastructure) 2007

Clause 20 – General development

Clause 82 – Rail facilities Clause 97 – Road facilities Enduring duty to consider

environmental impact under section 111 of the EP&A Act


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Complying developmentComplying development

Commenced in 1997 Principal certifying

authority Not utilised by

TfNSW Under Division 3,

Part 4 CDCs do not apply to Crown development


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Development with consentDevelopment with consent

Local government authority is the consent authority

Part 4 of the EP&A Act Permissibility usually

determined by local environmental plans (LEP)

Can be problematic for integrated delivery of transport projects


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State significant developmentState significant development

SSD is determined in accordance with Division 4.1, Part 4 of the EP&A Act

Introduced in June 2011

Minister for Planning the consent authority

Consent role delegated to Planning Assessment Commission


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Fox Studios,Moore Park

Westfield,Eastgardens


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Asset Divestment Program for residual construction land

North Ryde Precinct key TfNSW opportunity for transit oriented development


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Development without consentDevelopment without consent

Part 5 of the EP&A Act

TfNSW the determining authority

Most flexible and efficient means of assessment for Transport Projects


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State significant infrastructureState significant infrastructure

Required for activities triggering the need for an EIS and other activities identified under the SRD SEPP

Assessed under Part 5.1 of the EP&A Act

Minister for Planning is the determining authority

Mandatory consultation and exhibition requirements


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Navigating the processNavigating the process

Transport Projects Quality Management System (QMS) / Environmental Management System (EMS)

Planning and Environment Handbook

Project Management Methodology Framework (PMMF)


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Step 1: What is the activity?

Nature

Scale

Extent

Location

Cost

Duration


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Step 2: What is the permissibility of the activity on my site?

Check the applicable EPIs – particularly the Infrastructure SEPP, SRD SEPP and the relevant LEP


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Step 3: Significance of impact


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‘Fullest extent possible’, as ‘reasonable and practicable’

Duty to consider environment ongoing

The nature and extent of the activity sets the scope of the environment

Significance of impact is relative


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Ancillary developmentAncillary development

‘ancillary and independent’ versus ‘ancillary and subsumed’

Ancillary and subsumed no longer a valid argument

Assessment level of the dominant use does not stop ancillary elements from triggering higher level of assessment or additional approvals


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SubdivisionSubdivision

Subdivision is included in the definitions of both ‘development’ and ‘activity’ for the purposes of the EP&A Act

Infrastructure SEPP makes some allowance for subdivision as


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Critical infrastructureCritical infrastructure

Ministerial declaration

Essential for economic, environmental or social reasons

Streamlined assessment process

Restrictions on the availability of merit appeals

Applies to SSI only


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StagingStaging

SSI projects can be staged

Staging provisions allow for an initial concept plan to be approved with subsequent more detailed project approvals

South West Rail Link is an example of a successfully staged approval process


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Post-approval considerationsPost-approval considerations

Design development is evolutionary

EIA is done early in design

Scope change is inevitable, post-approval

Need to compare the impacts of the approved project with the new scope


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Consistency assessment checklists:

Compares the likely impacts of scope changes with those of the approved activity

Allows the Director Planning and Assessments to determine when a formal modification to approval is required


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Modifications to approval:

Part 4: section 96

SSD: section 96

Part 5: section 111

Part 5.1: section 115ZI


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Opportunities for improvementOpportunities for improvement


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Allowances for minor retail development permissible without consent when ancillary to transport works

Allowances for advertising to be permissible without consent when ancillary to transport works

Clarification of when an EIS is required


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Guidance for when modifications to SSI approvals are required

Clarification of trumping provisions for combined SSI/SSD projects

Clarification/renewal of bilateral agreement for SSI projects with EPBC Act referrals


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QuestionsQuestions


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ReferencesReferences

References:

TCA Annual Report 2011

TfNSW Website http://www.transport.nsw.gov.au

TfNSW Quality Management System (2012)

Figures:

All figures are copyright of TfNSW, except the following: Slides 13,16: NSW Parliamentary Counsels Office: http://www.legislation.nsw.gov.au Slide 17: NSW Government Licensing Service:

http://www.licence.nsw.gov.au/new/categories/home-owner-building-renovation Slide 20: Wikipedia: http://www.wikipedia.org Slide X: Macarthur Chronicle: Slide X: Rygate Surveyors, Subdivision design: http://www.rygate.com.au/subdesign.html Slide X: NSW Department of Planning: http://www.planning.nsw.gov.au Slide X: Tarte, Justin, Top 10 Questions to Ask Yourself:

http://justintarte.blogspot.com.au/2011/12/top-10-questions-to-ask-yourself-in.html


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Legislation/Regulation:

Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Environment Protection and Biodiversity Conservation Act 1999 (Comm.) Protection of the Environment Operations Act 1997 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (State and Regional Development) 2011 Transport Administration Act 1988


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Cases:

Guthega Development Pty Limited v. Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353 at 366

Transport Action Group Against Motorways Inc. v. RTA (1999) 104 LGERA 133 at 145 per Mason P.

Drummoyne Council v Maritime Services Board (1991) 72 LGRA 186 Residents of Blacktown and Seven Hills Against Further Traffic Inc v RTA [1996] NSWLEC

170 - Pearlman CJ (21 June 1996) Bailey v. Forestry Commission of New South Wales (1989) 67 LGRA 200 at 211-212 Residents Against Improper Development Inc & Anor vs Chase Property Investment Pty

Ltd (2006) NSWCA 323

Further queries:

Aaron Bowden, A/Senior Manager, Planning

E: [email protected]

P: 9200 0200

understanding eia requirements, environmental assessments and approvals summit 2012

Environment

aaron bowden asenior

development consent

crown development

integration of planning

nsw protection

state significant development

general development

planning approvals minor