EPA Act Reforms 2017 – Draft Bill – Briefing Note

The NSW Government has released draft amendments to the  Environmental Planning and Assessment Act (1979) (EPA Act).
The Government’s intention in making amendments is to make changes to the Act that it believes were largely agreed in the the 2013 Planning Bill. You can read the draft Bill and a summary of the proposals in the Department of Planning and Environment’s (DPE’s) website.

 

There are both positives and negative impacts of the changes on the NSW mining industry, including:

 

Positives

• Reform of the Planning Assessment Commission (PAC) – This is a partial positive. The PAC will be renamed the Independent Planning Commission (IPC). Key elements of the IPC:
  • It will no longer have a ‘review function’
  • It will be able to hold public hearings which will continue to extinguish merit appeal rights
  • The hearings will be in two stages. The first stage will be hearing for the IPC to assess the issues and provide guidance to DPE. The second stage will be more inquisitorial with the proponent questioned by the IPC. This will take place after the response to submissions. The view of NSWMC is that this will cause problems as there is no subsequent response process for the proponent or DPE. Our view is that the significant hearing should be at the first stage.
  • DPE’s view is that this process can save between 70-160 days, however we believe that they will need to add a further period for a formal response to matters raised at this second stage hearing which will add time (see the DPE Summary of Proposals on the DPE website for a flow chart of the proposed two stage process).
  • In addition members of the Gateway Panel will become IPC commissioners. 
• Transferable conditions – this change addresses the overlap between conditions of consent and regulation by other agencies such as through an Environmental Protection Licence (EPL). Where a condition is imposed under another regulatory approval or licence it will cease to have effect under the consent. We will need to consider the detail of transferable conditions, but it does appear to address a long term concern of the industry about duplicative regulation
• Clarifying the basis for a Planning Agreement – The Bill will clarify the Minister’s power to make a direction providing a methodology underpinning planning agreements. If effective this will be beneficial to the mining industry, which is subject to unfair and unreasonable panning agreement negotiations.

 

Negatives

• Discontinuing Part 3A – The savings arrangements for Part 3A provided that these consents could continue to be modified under section 75W, which is a much broader modification power than that contained in section 96 which applies to State Significant Development (SSD). The Government proposes to discontinue this without bringing in any specific modification provisions for SSD, which was provided in the Draft 2013 Planning Bill. This is likely to have a significant impact on projects that will not meet the section 96 test. The following rules will apply:
  • There will be a two month window in which section 75W can be used
  • Section 75W applications with Secretary’s Environmental Assessment requirements will be determined under section 75 provided an EIS is lodged within 12 months
  • Part 3A consents will be transitioned to SSD and will be assessed against the development as at the time it was transitioned (ie section 96 has a test requiring the modification to “substantially the same”, that will mean substantially the same as the Part 3A development as modified at the time it is transitioned).

 

Neutral or uncertain

• Clearer powers to allow for the updating of monitoring and environmental audit conditions – it is uncertain why this needs to be made clearer and therefore what new consequences there could be for industry.
• Community participation plans – these are plans that will be required to be made by the consent authority including the the Secretary of the Department of Planning and Environment (DPE). They will set out how the planning authority is required to undertake community consultation when making plans or decision making. In practical terms DPE has already commenced an approach of undertaking community consultation during the planning process of mining projects.
• Community Participation Principles – these principles are generally consistent with good community consultation practice. SSD proponents will be required to demonstrate how they have consulted with the community prior to lodgement of the application. Again early consultation is standard good practice and this requirement is unlikely to cause any difficulties for the mining industry.

 

We’ll be seeking legal advice to understand the full implications of the reforms and working with the NSWMC Planning Reform Working Group to prepare a submission which is due on 10 March 2017. The Government intends to hold a number of consultation workshops and we will share those details with members when they become available.

 

Importantly the number of submissions does carry weight with government, so we encourage members to provide individual submissions as well as contribute to the NSWMC submission. We are happy to provide our draft submission to inform your submission and you can contact Claire Doherty at cdoherty@nswmining.com.au or on 0412574651 if you would like further information.