Secretary to determine what forms part of a “single proposed development”

Schedule 1[1] to the Bill provides that the Secretary of the Department of Planning, Housing and Infrastructure may determine that a particular part of a development does or does not form part of a single proposed State significant development for the purposes of certain development consent requirements, inserting the following additional clause into section 4.38 of the EP&A Act –

(4A) The Planning Secretary may determine that particular development does or does not form part of a single proposed development for the purposes of subsection (4).
(4B) Subsection (4) does not apply to development that the Planning Secretary determines does not form part of a single proposed development under subsection (4A).
(4C) The regulations may provide for the following in relation to a determination
made under subsection (4A) —
(a) the form and way in which a determination must be made,
(b) the procedure for making a determination, including requirements for consultation,
(c) the circumstances in which the Planning Secretary may make a determination.

The provision will allow the Secretary to determine the extent of the single proposed development, with consideration given to the unique facts of each application.

The Bill also seeks to validate development consents approved prior to the commencement of the amending Act, seeking to remove existing uncertainty as to the validity of approved SSDAs in which the environmental impacts of offsite infrastructure was not assessed, providing that:

(1) Anything done or omitted to be done before the commencement of the amending Act that would have been valid but for the operation of this Act, section 4.38(4) is validated.
(2) Subclause (1) does not render valid—
(a) a development consent that was, before the commencement of the amending Act, declared by a court to be invalid, or
(b) a development application that was lodged after, and in reliance on, a development consent referred to in paragraph (a).
(3) In this clause – amending Act means the Environmental Planning and Assessment Amendment (State Significant Development) Act 2024.

The Bill, if adopted, will provide greater certainty to proponents of SSDAs as to the extent of environmental assessment required. We will be keeping an eye on the progression of the Bill through Parliament. What remains unknown is the amendments to be proposed to the regulations to provide the specifics as to the nature and process for the Secretary’s determination.

Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205

In August, the NSW Court of Appeal handed down its decision in Bowdens upholding an appeal against the previous findings of the Land and Environment Court in determining what constitutes the development “the subject of the development application” and more specifically, whether a transmission line was part of the “single proposed development that is State significant development” within the meaning of s 4.38(4) of the EP&A Act.

Bowdens concerned a SSDA for a silver mine. The Environment Impact Statement (EIS) for the application stated that whilst an external electrical power supply was required for the development and contemplated a transmission line, the location of the transmission line was not proposed or assessed within the EIS. The transmission line was not part of the consent sought and would be subject to a separate application under part 5 of the EP&A Act. The IPC determined the SSDA on the basis that the power line would be the subject of a later assessment and accordingly did not consider the transmission line, and specifically the environmental impacts thereof, as part of its determination. A community group then challenged the decision of the IPC on the basis that it had failed to consider all of the likely impacts of that development as required, as of relevance to the development the subject of the development.

At first instance, Duggan J held that the transmission line was not a part of a “single development” in the sense contemplated by s 4.38(4) of the EP&A Act, and therefore the environmental impact of the transmission line was not a mandatory consideration for the IPC in making its determination, nor was the IPC required to make a determination on the transmission line itself as part of the application made by Bowdens. The Court of Appeal overturned the decision of the primary judge finding relevantly the following:

1. The development for the purposes of section 4.38(4) is the proposed mine for which development approval was sought and of which the transmission was a component: [17], [54], [55].
2. As the proposed mine will require electrical power, the likely impacts of the transmission line providing the power were a mandatory consideration for the IPC in considering the likely effects of the mine itself, pursuant to s 4.15(1)(b) of the EP&A Act. This could not be excluded by the first respondent not including information as to the likely routes of the transmission line: [24], [71].

Justice White of the Court of Appeal noted that the transmission line was essential to the mine’s operation and its environmental impacts were not merely ancillary but directly related to the project’s overall impact, and necessary for assessment in order to discharge the consent authorities’ obligations.

The Court declared the consent void and of no effect. The original application has now been returned to the consent authority to consider the impacts of the power line prior to making a further determination.

The decision is available here: Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd – NSW Caselaw