Restoring order to State Significant Development
For many years State Significant Development (SSD) and offsite enabling infrastructure have from time to time been dealt with under alternative planning approval pathways. The primary development is assessed under Part 4 of the Environmental Planning and Assessment Act 1979 (EP&A Act) whilst the offsite enabling infrastructure is often assessed under Part 5 of the EP&A Act. As recognised by the New South Wales Government, this practice was beneficial because it enabled SSD applications to be more efficiently assessed, even where the details of the offsite enabling infrastructure were still uncertain1.
Earlier this year the New South Wales Court of Appeal (Court) overturned this long standing practice by setting aside a development for a silver mine on the basis that the consent authority had failed to consider the likely impacts of a transmission line which, in the Court’s view was “integral” and had a “real and sufficient link” such that the aspects of the development formed part of a “single proposed development” within the meaning of section 4.38(4) of the EP&A Act.
The Court’s decision not only affected the SSD, the subject of the case, but as estimated by the New South Wales Government, at least 60 other SSD applications which are critical to the State that are currently awaiting determination and many development consents which have already been granted.
The significance of the Court’s decision and its far reaching implications, has been acknowledged by the New South Wales Parliament, with steps taken to address the issue and prevent many important and much needed major projects and other infrastructure developments from stalling.
In response to the Court’s decision, the Environmental Planning and Assessment Amendment (State Significant Development) Act 2024 (NSW) (Amending Act) passed the Parliament and commenced on 2 December 2024. The Amending Act inserted three new sub-sections after section 4.38(4) of the Environmental Planning and Assessment Act 1979 (NSW) (Act).
Section 4.38(4) of the Act previously provided:
‘If part of a single proposed development that is State significant development requires development consent to be carried out and the other part may be carried out without development consent—
(a) Division 5.1 does not apply to that other part of the proposed development, and
(b) that other part of the proposed development is taken to be development that may not be carried out except with development consent.’
The Amending Act:
- provides the Planning Secretary with power to determine that particular development does or does not form part of ‘a single proposed development’;
- carve outs from the application of section 4.38(4), any development the Planning Secretary determines does not form part of ‘a single proposed development’; and
- allows the regulations to provide the form, way, procedure (including any consultation requirements), and circumstances in which such a determination by the Planning Secretary to be made.
Most importantly, a schedule to the Amending Act validates anything done or omitted to be done that would have been valid but for the operation of section 4.38(4) of the Act. Whilst this schedule does not validate the development consent granted for the silver mine which was the subject of the Court’s decision or any other development consents declared to be invalid prior to the commencement of the Amending Act, it will assist in protecting other development consents that have not yet been the subject of judicial review and current SSD applications that are in assessment phase. The Amending Act will also provide a pathway for Bowdens Silver to seek reinstatement of the development consent for the silver mine, following further engagement with the Department of Planning, Infrastructure and Housing.
Despite the Amending Act, the recently released Renewable Energy Planning Framework (November 2024) indicates that enabling infrastructure should still form part of the SSD application. Specifically, the Wind and Solar Energy Guidelines indicate that these types of developments require associated infrastructure such as substations, converter stations, transmission lines and access roads to connect to the electricity transmission network. Proponents of these developments should include network connection works as part of their SSD application to streamline stakeholder engagement and to ensure that the Department can consider all aspects of the development during the assessment process. Furthermore, proponents should include the potential environmental impacts of network connections in the environmental impact statement, including the impacts associated with the construction of substations and above ground and underground infrastructure.
This means that whilst the Planning Secretary may have the power under the Act as now amended to determine that enabling infrastructure may not form part of a single proposed development, at least in respect of renewable energy projects, the Department expects that the environmental impacts associated with such development will be assessed as part of the SSD application.
[1] Environmental Planning and Assessment Amendment (State Significant Development) Bill 2024, Second Reading Speech
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.
