NSW Planning and Housing Minister Anthony Roberts last week introduced the Environmental Planning and Assessment Amendment (Staged Development Applications) Bill 2017 to State Parliament, which aims to restore clarity to the assessment of staged developments and concept proposals.
Mr Roberts said the proposed changes were necessary to ensure the delivery of more than $8 billion worth of development applications in NSW following the Court of Appeal's decision in relation to the Walsh Bay Arts Precinct development application.
The decision relates to a concept proposal by Arts NSW for a new performing arts and cultural precinct in Walsh Bay, which was assessed by the Department of Planning and Environment and approved in May 2015. The concept approval did not give consent to carry out any works.
That decision was later challenged in the Land and Environment Court (LEC) on the grounds that the Department should have considered construction-related noise impacts when assessing the concept proposal, rather than allowing the assessment to be undertaken when the development application (DA) for construction was lodged.
The challenge was unsuccessful in the LEC, which found that because the concept proposal did not seek approval for works, it was appropriate that construction-related impacts be considered at the DA stage. However, the Court of Appeal took a different view and found the development consent for the Walsh Bay Arts Precinct invalid on the grounds that:
- It was not a 'staged development application' because it included a concept approval and proposed only one subsequent detailed development application (DA), instead of multiple detailed DAs; and
- Construction-related impacts need to be considered in the assessment of a staged application.
"The Walsh Bay decision meant that more than one subsequent Development Application (DA) would be required for staged development applications and a full assessment of construction related impacts would now need to be undertaken at the concept stage, often when these details are not fully known," Mr Roberts said.
"This Bill will allow consent authorities to determine the most appropriate time to assess construction impacts, either in part, at the concept stage and more fully at the second stage, or at stage two where all the details and likely impacts of the proposal are fully known.
"This approach is the accepted practice for approvals within the state's development industry and we are simply seeking to have this procedure confirmed in the legislation.
"In all cases construction related impacts must be assessed before any work can start, and the Bill reinforces this."
The proposed changes to legislation will not affect the Court of Appeal's decision for the Walsh Bay Arts Precinct or the way in which the Department assesses coal mines, wind farms and other resources and energy projects.
"The Department always conducts a comprehensive and complete assessment of all the impacts for resource and energy related applications, and nothing will change there," Mr Roberts said.
The proposed changes to the Environmental Planning and Assessment Act were on exhibition in July, and 15 submissions were made to the Department. The Bill was amended to address concerns raised in one submission to ensure the provisions do not apply to the currently undetermined second stage of the Walsh Bay Arts Precinct proposal.
More information about the proposed changes is available from the Department of Planning and Environment website at <http://www.planning.nsw.gov.au/conceptproposals>.