Environmental Planning and Assessment Act: Provisions and Consent

This article provides an overview of the Environmental Planning and Assessment Act, focusing on the provisions and consent requirements. It explains the different categories of development and the role of various authorities in the approval process. The article also highlights the importance of stakeholder engagement and the need for climate change adaptation in planning decisions.

Phase 1-
The Environmental Planning and Assessment Act that is EP & A Act came in to
existence on 1 August 2005 and the New South Wales Government announced the
inclusion of new Part 3A for Major Infrastructure and other projects to the
Environmental Planning and Assessment Act 1979. Under Part 3A, the Minister is
mentioned as the sole determining authority. However it should be noted that recent
reforms to Part 3A aim to make ineffective the arrangements for the determination of
Part 3A projects (Department of the Environment and Energy, 2019)1.
Thesis
Provisions are found in the EPI under the relevant zoning. Project can be classified
under two purposes – one permissible and the other prohibited as stated in Friends of
Pryor Park Inc v Ryde Council [19952].The activities has been categorised into eight
groups. Categorisation is based on nature of similarity of work and its likely impacts.
 Group 1 - Routine work of minor nature - preparatory, rehabilitation or
investigative.
 Group 2 - Routine and minor work - supporting infrastructure (such as signage
and lighting)
 Group 3 - Routine and minor work - infrastructure work within current road
footprint.
 Group 4 - Ancillary facilities (such as work compounds and rest areas)3
1 Shoalhaven Local Environmental Plan 2014.
22.Friends of Pryor Park Inc v Ryde Council [1995] (Unreported, 2019).
3 Environmental Planning and Assessment Act 1979 (NSW) s 4.5(b).

 Group 5 - Supporting construction - basins, drains and culverts etc.
 Group 6– basic utilities and fencing.
 Group 7 – waterways works (such as snag removal and bank stabilisation)
 Group 8 - Primary infrastructure construction work (including carriageways,
bridges and batters)4.
4 State Environmental Planning Policy (State and Regional Development) 2011 sch 1 cl 13(1).

Consent provisions-
The Australian Governments perform power with regards to the provisions that ate
needed for the submission and approval of various development project. The States and
Territories have to perform the major role, while the Commonwealth has accountability
regarding subjects concerning national environmental required under the Environment
Protection and Biodiversity Conservation Act 1999 (the EPBC Act), also for projects
proposed on Commonwealth lands and in Commonwealth waters5. Local governments
also perfroma important role to play using legislative ways for major approvals’6,
however Ministers have authority under certain situations to declare a development
project to be a major project, which effectively prohibits the power local government
related to planning (Inquiry into the NSW Planning Framework, 2009)7
Development that needs consent
An environmental planning principles has mentions the development, a group of
development, which can be declaredbased onspecified developmentalstandards, is
complying development8.
What development is complying development?
1- Development that is defined in a complying development code that completes the
standards specified for that development and that is in conformity with the requirements
of this Division for complying development for the requirements of the Policy.
2- EP&A Act: finding out of complying development. (s 84A)9
(1) Any individual may carry out complying development on land if:
5Uniform Civil Procedure Rules 2005, r 42.1
6 Commonwealth Environmental Protection And Biodiversity Conservation Act 1999 (NSW Dept. of Planning, 2007).
7Department of the Environment and Energy. (2019). Department of the Environment and Energy. [online]
8Friends of Pryor Park Inc v Ryde Council [1995] (Unreported, 2019).
9 State Environmental Planning Policy (State and Regional Development) 2011 cl 8(2).

(a)- he has valid development certificate.
(b)- The development is being executed in accordance with:
(i)- The complying development certificate issued,
(ii)- Any provisions mentioned in environmental planning instrument, development
control management and provisions that applied to the execution of the complying
development on the land at the time of issuance of complying development certificate.
Strategic Planning and Assessment can include the cumulative impacts that arise from
multiple developmental projects and other related activities on landscape ecosystems. In
turn, this can result in less resource intensive and time consuming subsequent project
assessment and approval processes, since some of the concerns have already been
handled.
As per Section 75O of the Environmental Planning and Assessment Act 1979,10 the
Minister for Planning and Infrastructure, determine:
a) To certify the Concept Plan given in Schedule 111, referring to the regulations of
approval in Schedule 2 and the changes in Schedule 3;
b)Undersection75P(1)(b) 12of the Act that approves to execute the development, is to
be subject to:
i. Part 4 of the Act, that includes sections of the development which are of the tyoe
suitable for approval with consent by an applicable environmental planning instrument
(EPI);
10 A Hawke, Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act
1999 (2009) <https://www.environment.gov.au/system/files/resources/5f3fdad6-30ba-48f7-ab17-
c99e8bcc8d78/files/final-report.pdf>.
11Chatswood Transport Interchange (NSW Dept. of Infrastructure, Planning and Natural Resources, 2004).
12 State Environmental Planning Policy (State and Regional Development) 2011 cl 8(2)(a); Besmaw Pty Ltd v
Secretary of the Department of Planning and Environment [2017] NSWLEC 74, [83] (Robson J).

ii. Part 5 of the Act, activities of the project which are under part 5 and declared as
those does not require cosent by an applicable EPI;
iii. Section 76 of the Act, includes part if development which are exempted for
approvals as,
c) Under section 75P (2)(c) of the Act: 13where project is subject to other those are
complying development, that development is subject to the further environmental
assessment required as specified in Schedule 3 of the approval14, and
ii- Where project is under Part 5 of the Act, that plan is subject to the more
environmental assessment required as. specified in Schedule 3 of this approval.
Legislative provisions-
The EP&A Act 1979mentions the provisions required for environmental planning for
environment impact assessment in New South Wales15. The objects of the EP&A Act
1979 include various provisions related to-:
 The adequate management, development and conservation of natural resources
The provision and coordination of the orderly, economic and efficient use and
development of land (Law et al., 2017).
Environment protection, including the protection and conservation of indigenousflora
and fauna, including threatened species, populations and ecological communities, and
their habitats16.
13 Environmental Planning and Assessment Act 1979 (NSW) s 4.38(5)
14 Department Of The Environment And Energy", Department Of The Environment And Energy (Webpage,
2019) <http://www.environment.gov.au/about-us/esd>.
15Environment Protection and Biodiversity Conservation Act 1999 (Cth
16Threatened Species Conservation Act 1995, Div 2, Pt 6

Ecologically sustainable development.
The projects mentioned under this strategic assessment and the Program are those
which subject to Part 5 of the EP&A Act, 17excluding state related infrastructure
projects. Under Part 5 of the EP&A Act, developers needs to ‘examine and take into
consideration to the fullest limit possible to all matters affecting or having potential to
affect the environment by that activity’. The minimum legal requirements that are
needed to take into account are set out in Clause 228 of the Environmental Planning and
Assessment Regulation 2000 (EP&A Regulation) and in the provisions an EIS
required18.
Public Involvement-
While asking for the engagement of public, Development project applies best practice
make sure that theconsultation is:
meaningful; occurs at the earliest possible development stage; provides adequate and
timely information; allows adequate time and a variety of opportunities for factors; and
that community opinion and consultation had been taken adequately in decision-
making.
Construction environmental management plan (CEMP) – contract specifications will
require the CEMP to detail arrangements for regular site inspections to assess the
adequacy and effectiveness of environmental controls, with a particular focus on higher
risk activities and processes, work in proximity to environmentally sensitive areas, and
preparedness for adverse site conditions such as weather events19.
17 Environmental Planning and Assessment Act 1979 (NSW) s 4.12(8); Environmental Planning and Assessment
Regulation 2000 (NSW) sch 1 cl 2(1)(e).
18Best Practice Guidelines for Part 5 of the Environmental Planning and Assessment Act 1979.
19Construction Environmental Management Plan - Designing Buildings Wiki", Designingbuildings.Co.Uk (Webpage, 2019)

Phase 2-
An Environmental Impact Statement (EIS) is a document that ensures that the effects of
particular activities that may have significant environmental impact are evaluated by the
relevant consent authority during the development approval process.
Climate change adaptation will act as a major policy driver for the foreseeable future
due to the risk and opportunities the changing climate presents to the environment and
communities.
Where the EIA identifies impacts likely to be generated as a consequence of predicted
changes in the climate their significance should be evaluated based on a combination
of: o Scenarios: an impact’s likelihood under a range of climate scenarios;
Receptor’s vulnerability to existing climatic variations. A receiver’s ability to
captureany disturbance and continue to function. Where the EIA identifies that the
likely consequences of climate change that can incorporate potential risk to a project’s
ability to effectively function in the future, the assessment should aim to make sure that
costs of not adapting are properly considered in the design process.
International climate change agreement emphasises on the role of Environmental
Impact Assessment. For example, recommendations regarding the impact assessment
presented in the United Nations 1992 Framework on Climate Change Convention
(UNFCCC), 20also in the 1997 Kyoto Protocol. Both mentions requirement on the
contracting parties to take into consideration and mitigate the adverse effects of climate
change by controlling greenhouse gas (GHG) emissions, and by promoting adaptation
responses to climate change effects on EIA projects, the economy, human health and
20 Environmental Planning and Assessment Act 1979 (NSW) s 4.12(8).

the environment, thereby implying that EIA should play an important role. However,
the details of exactly how EIA might or should account for climate change, especially at
the individual project level, is not specified in these international agreements.
An updated environmental assessment of relevant statutory matters and Issue Specific
Requirements for construction and operation21 (including cumulative impacts of
existing and approved development on the site and on adjoining sites) and the
identification of relevant avoidance, mitigation and management measures to address
associated impacts22.
 An Air Quality and Greenhouse Gas Assessment that assesses emissions and air quality
impacts on local and regional receivers and at a broader level. The assessment shall:
i. Find out emissions and pollutants of development planand determine surrounding sensitive
and potential people that may be impacted by potential pollutants23;
ii. consider the site pollutant performance criteria given in this approval plan.
iii. include a refined assessment of pollutants on people, including PM10 concentrations,
taking into account the ambient Air Quality Model, Meteorological Monitoring and Air
Quality Monitoring Program required under this approval, and cumulative air quality
impacts, as relevant.
iv. Find out measures for mitigation and management that would be executed to mitigate
adverse impact to localair quality and sensitive receivers,, along with designs
allowingprovision of ‘cold ironing’ and the demonstration of best practice of air quality
management, with the aim to not let increase emission concentrations beyond the
boundary of the site above existing background levels;
21 Robyn Walker, Strategic Management Communication For Leaders (Cengage Learning, Inc, 2011).
22Philip N Alexander, A Widening Sphere (MIT Press, 2011)
23Xiaofeng Li and Vladimir Strezov, "Energy And Greenhouse Gas Emission Assessment Of Conventional And Solar Assisted
Air Conditioning Systems" (2015) 7(11) Sustainability.

v. Greenhouse Gas Assessment and the determination of controlling measures and
sustainability initiatives to mitigate greenhouse gas emissions.
vi. Explains provisions for the methods for adoption and Modelling and Assessment of Air
Pollutants in NSW (EPA, 2001)24.
Stormwater Management Strategy- The Strategy shall include:
a) the determination of risks related to water management, including flood
risk, water quality, stormwater impacts, the isolation of stormwater from
contaminated land and the local groundwater table, and the determination
of climate change and coastal hazards,
b)Designrelated principles, objectives and environmental criteria of flooding, ground
water, and storm water management, including the consideration of the following
matters:
i.Mitigating coastal risks and flooding hazards for land usage , associated and in
proximity of the site, including the determination of site design, criteria for site levels
and drainage capacity, and consideration of NSW seal level rise planning benchmarks;
ii. The reduction of runoff and the mitigation of peak flow;
iii. The design and its adoption for stormwater management that includes all the
environmental constraints.
iv; Conceptual site based flooding, storm water, surface water and water quality
management measures, including standards for the protection and maintenance of these
measures;
24Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52

v.Improvement in the quality of surface and ground water within development site and
other potential points.
c). Integration of storm water management, its treatment and supply to practical
environmental processes.
d) a suitable program for monitoring surface and ground water which includes relevant
factors to be monitored, sampling locations ,methods and sampling methodology,
including frequency, duration, responsibilities and reporting.
e)Adequate Corrective and preventive action and emergency measures in the event of
exceed of the relevant environmental performance provisions.
f)provisions related to regular review and its updation to identify procedures for
improvement and to reflect the progress of site25.
g) Reporting all the relevant protocols for evaluation of performance,
The Strategy shall be prepared in close consultation with Council, HDC, EPA and shall
be submitted to the Director-General before the lodgement or consideration of any
project application associated with this Concept Plan approval, or as otherwise agreed
by the Director-General. The Proponent must update the Strategy plan, as required,
following subsequent project approvals associated with this Concept Plan Approval26.
DRAFT SUBMISSION
It is the fundamental duty of the consent authority to take all the possible consents that
might affect the environment in case there is development carried out. The citizens of
25 MCC Energy Pty Ltd v Wyong Shire Council [2006] NSWLEC 581, [59]-[65] (Jagot J).
26 Environmental Planning and Assessment Act 1979 (NSW) s 4.12(8).

the area shall take in to consideration the various failures and take the approval from the
EIS.
There are basically few failures that needs to be identified which will have direct impact
on the environment. These include:
 changes in the environment: there are various climatic changes that can affect
the environment like the soil erosion etc so these kind of changes in the climate
shall not be overlooked.
 the biodiversity impacts: next failure that is covered here is the biodiversity
impacts the biodiversity can impact the environment in many ways. Again, we
draw your attention again to the point that failure to consider matters that should have
been set out in an EIS may lead to a subsequent approval

Phase 3-
There is need for the overview of relevant legal assessment procedures under the
Environmental Planning and Assessment Act provisions regarding person who has
liability to include climate change adaptations27.The objects of the Environmental
Planning and Assessment Act 1979 have been amended to incorporate provisions that
promote-
 Adequate construction and maintenance of buildings.
 sustainable management of built and cultural heritage; and
 suitable design and amenity of the built environment.
Independent Planning Commission
The Planning Assessment Commission (PAC) has been rechristined as the IPC. The
roles and responsibilities of the IPC are mostly the same as the former PAC. The public
hearing process has also been improved to facilitate the community with opportunities
to present their concerns at an early stage of the assessment28.
Sydney district and regional planning panels
While the other regional planning panels continue outside of Sydney, the updated
EP&A Act establishes five Sydney district planning panels for the Greater Sydney
Region, which replaces the Sydney Planning Panels introduced in 201629. The Sydney
district and regional planning panels decides ‘regionally significant’ development
27 Besmaw Pty Ltd v Secretary of the Department of Planning and Environment [2017] NSWLEC 74, [83]
(Robson J).
28Environment Protection and Biodiversity Conservation Act 1999 (Cth)
29 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J).

applications (DAs) over certain limits. Note that property developers and real estate
agents cannot be members of these panels30.
State-based deviations from the Building Code of Australia - At present, the States
and Territories have the capacity to opt out of parts of the BCA through jurisdictional
amendments. Efforts are currently being undertaken to restrict the number of
deviations, although variations to account for geographic and climatic differences are
specifically allowed. While it is necessary to ensure that building requirements respond
to the particular climatic conditions prevailing in a local area, widespread deviation
from the BCA could undermine efforts to achieve a national response to climate change
for buildings through the BCA. This risk could be exacerbated by differences between
each jurisdiction’s schemes for administration of the building approvals process. Such
differences could lead to variation in the way building requirements associated with
developing resilience to climate change are interpreted and applied in practice31.
Stakeholder engagement- The method in which planning decisions are made, may also
increase the effectiveness of the system in addressing the impact of climate change.
More specifically, the planning system provides for community engagement and
stakeholder consultation through, for example, the option for third parties to be
involved in decision-making process in respect of strategic and statutory planning
decisions. In all jurisdictions, residents of the local area must be notified of applications
for proposed new applications and developments and proposals to amend the planning
instruments that affect the area32. Public participation is encouraged through broader
public exhibition of such proposals in State-wide media and journals, more recently, on
30Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38
31Environmental Planning and Assessment Regulation 2000, cls 3, 4, 228, 27(g) of Sch 3
32Environmental Planning and Assessment Regulation 1994, cl 82

the websites of decision-makers. The nature and degree of stakeholder engagement
provided for under the planning system helps to secure community support for planning
decisions that are aimed at addressing the effects of climate change.
Existing use and development-‘existing use rights’ protect the use of already existing
buildings and works related to the existing use. In essence, existing use may continue
uninterrupted by changes in a planning instrument. For instance, if a planning
instrument were modified to prohibit new residential uses (new houses on land) in a
particular area, this could not prevent people from continuing to live in existing houses
in that area. The rationale for this principle is that development approvals are akin to a
property ‘right’ or ‘interest’, sometimes referred to as an ‘accrued right’, and legislation
is not to be defined as taking away a right accrued under legislation unless that intention
is expressed in unequivocal terms.Existing use rights limit the effectiveness of planning
tools that may be used to facilitate adaptation to climate change. For example, the use
of back zoning to stop development in areas that are vulnerable to the effects of climate
change will have no effect on use or development for which there are existing use
rights33.
Fragmentation of decision-making and lack of capacity of decision-makers - As
already mentioned, the planning system is explained by its flexibility to respond to
current land use and development challenges. However, this flexibility along with the
decentralised framework for planning decisions means that action to address climate
change may be compromised by local politics and/or a lack of support and leadership.
The capability of specific council to effectively address climate change may also be
affected by an absence of skills and adequate resources that may be required to properly
33 Davis v Gosford City Council [2014] NSWCA 343, [73]-[78] (Preston CJ of LEC).

account for the impact of climate change at both the strategic and statutory levels. This
may lead to fragmented, inconsistent and inefficient decision-making across multiple
jurisdictions and municipalities.
Principles for adaptive regulation: Government provides guidelines, in relevance to
the COAG Principles of Best Practice Regulation, should be applied to regulatory
responses to target the impact of climate change. In addition, certain specific, core
principles are needed to implement the regulatory responses to climate change. These
principles need to account for the diversity of infrastructure and associated regulatory
frameworks, the spectrum of climate change impacts that might materialise now and in
the future, and the uncertainty surrounding the nature, location, timing and scale of
climate change impacts. These principles include:
• Risk: Regulatory responses to climate change need to ensure that current and possible
future climate change risks have been identified and assessed and are in place to
respond to those risks.
• Proportionality: A regulatory response should be incidental with the relevant climate
change risks.
• Effectiveness: A regulatory response must be effective and efficient in facilitating
adaptation to climate change through the way it is designed, applied and implemented.
• Efficiency: A regulatory response should represent the most effective response at the
minimal overall cost.
• Equity: The direct and indirect impact of regulatory responses should be equitable; no
one sector, region or social group should beoverburdened34.
34Inquiry into the NSW Planning Framework. (2009). [Sydney, N.S.W.]: UDIA NSW

• Flexibility: A flexible regulatory framework is needed to ensure that the regime is
responsive to the spectrum of climate change impacts that might implement.
• Consistency and predictability: Regulatory responses to climate change should be
inherently consistent and predictable to provide a stable regulatory environment and
bring business confidence. Consistency is also needed between such regulatory
responses and the pre-existing regulatory framework and other inter-related regulatory
frameworks35.
• Transparency: Transparency about the underlying purpose of a regulatory response
to climate change, the way in which it will be applied and enforced and all underlying
documents and information are critical to engender support for the regulatory response
and to foster a willingness to co-operate and participate constructively in adaptation36.
35Corporate Social Responsibility and Environmental Management, 19(2), pp.79-89.
36 AGC (Advances) Ltd v Roads and Traffic Authority of New South Wales (1993) 30 NSWLR 391, 397
(Priestley JA), 399 (Cripps JA).

Bibliography
A. Books, Articles and Reports
Alexander, Philip N, A Widening Sphere (MIT Press, 2011)
Chatswood Transport Interchange (NSW Dept. of Infrastructure, Planning
and Natural Resources, 2004)
Commonwealth Environmental Protection And Biodiversity Conservation Act
1999 (NSW Dept. of Planning, 2007)
Walker, Robyn, Strategic Management Communication For Leaders
(Cengage Learning, Inc, 2011)
B. Cases
Timbarra Protection Coalition Inc v Ross Mining NL & Ors(1999)
Hub Action Group Inc v Minister for Planning and Orange. City Council [2008] NSWLEC
116.
Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 (8 February 2019)
ELAW.
C. Legislation

Commonwealth Environmental Protection And Biodiversity Conservation Act 2019
Regulation
Environmental Planning And Assessment Regulation 2000, Cls 3, 4, 228, 27(G) Of
Sch 3 2019
Environmental Planning And Assessment Regulation 2000, Cls 3, 4, 228, 27(G) Of
Sch 3 2019
(Webpage, 2019)
<http://www5.austlii.edu.au/au/legis/nsw/consol_reg/ucpr2005305/>
D. Websites
Li, Xiaofeng and Vladimir Strezov, "Energy And Greenhouse Gas Emission
Assessment Of Conventional And Solar Assisted Air Conditioning Systems" (2015)
7(11) Sustainability
Friends of Pryor Park Inc v Ryde Council [1995] (Unreported, 2019)
(Webpage, 2019)
http://www5.austlii.edu.au/au/legis/nsw/consol_reg/ucpr2005305/
Environmental Planning and Assessment Act | Urbanlex", Urbanlex.Unhabitat.Org
(Webpage, 2019) <http://urbanlex.unhabitat.org/law/408>

"Construction Environmental Management Plan - Designing Buildings
Wiki", Designingbuildings.Co.Uk (Webpage, 2019)
https://www.designingbuildings.co.uk/wiki/Construction_environmental_manageme
nt_plan