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The Commonwealth Department of the Environment and Energy has released its ‘Review of Climate Change Policies’ Discussion Paper dated March 2017.
The NSW Government has released a draft Bill for public comment which seeks to amend the concept proposal pathway for projects under the Environmental Planning and Assessment Act 1979 (NSW) (the Act). The draft Bill has implications for any developers (and other interested parties such as financiers) of large scale projects who have pending, or proposed, applications for concept proposals in NSW.
The ‘concept proposal’ mechanism was introduced by the NSW Government to assist developers with the delivery of large-scale complex projects. In particular to provide a ‘bankable approval’ at an early stage in circumstances where a project requires material capital expenditure and/or staged delivery over many years.
In practice, developers often relied on the ‘concept proposal’ (or staged development application) mechanism to:
That approach was recently declared invalid by the Court of Appeal’s decision in Bay Simmer Investments Pty Ltd v State of New South Wales  NSWCA 135 where the Court found that the Act requires:
The implications of the Court’s decision are material and include, among other matters:
The Court’s decision also has the potential to expose other approved concept proposals to challenge on similar grounds to those that the appellant relied in Bay Simmer Investments.
In light of the above risks and inconsistency with the intended purpose of the concept proposal pathway, the NSW Government has proposed the following key changes to the EP&A Act:
The Bill also includes arrangements to ensure that the new provisions apply to pending development applications, as well as development consents previously granted.
The draft Bill has implications for any developers (and other interested parties such as financiers) of large scale projects who have pending, or proposed, applications for a concept proposal in NSW.
In particular it will be important for proponents to ensure that their applications expressly adopt the language of the proposed changes to the ‘staged development application’ mechanism. It will also be critical for proponents to ensure that supporting environmental assessment comply with the new assessment regime (particularly in relation to construction impacts), while still protecting proponents from challenge based on the principles enunciated in Bay Simmer Investments.
The draft amendments to the Act are on public exhibition until Monday 24 July 2017.
If you have any questions in relation to the draft Bill, or the implications of the amendments for your business, please contact Ben Fuller.