'Understanding EIA Requirements', as presented by Aaron Bowden at the Environmental Assessments and Approvals Summit, 2012

1. Understanding EIAUnderstanding EIA
requirementsrequirements
Aaron BowdenAaron Bowden
Transport for NSWTransport for NSW

2. Monday, 28 May
2012
Aaron Bowden
A/Senior Manager
2
Presentation overviewPresentation overview
 Transport for NSW
 Planning approvals pathways
 Navigating the process:
 Guidance
 Define the activity
 Permissibility
 Significance
 Legal precedents
 Ancillary development
 Subdivision
 Critical infrastructure
 Staging
 Post-approval considerations – consistency assessment and modifications
 Opportunities for system improvement

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2012
Aaron Bowden
A/Senior Manager
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Personal backgroundPersonal background
 Bachelor of Town
Planning, UNSW
 Department of Planning
 Leichhardt Council
 Randwick Council
 Parsons Brinckerhoff
 JBA Planning
 Transport for NSW

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2012
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A/Senior Manager
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PreamblePreamble

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2012
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A/Senior Manager
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Transport for NSWTransport for NSW
 Announced by the
Minister for Transport
on 15 July 2011
 Opportunity for the
integration of
planning, design,
delivery, operation
and maintenance of
transport systems in
NSW

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2012
Aaron Bowden
A/Senior Manager
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Transport for NSWTransport for NSW

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2012
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A/Senior Manager
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Transport for NSWTransport for NSW

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2012
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A/Senior Manager
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Transport ProjectsTransport Projects

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2012
Aaron Bowden
A/Senior Manager
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Transport ProjectsTransport Projects

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2012
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A/Senior Manager
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Transport ProjectsTransport Projects

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A/Senior Manager
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Environmental servicesEnvironmental services
 Planning and
Assessments
 Environmental
Management
 Sustainability

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2012
Aaron Bowden
A/Senior Manager
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Planning approvals pathwaysPlanning approvals pathways
 Environmental Planning
& Assessment Act 1979
(NSW)
 Protection of the
Environment Operations
Act 1997 (NSW)
 Environment Protection
& Biodiversity
Conservation Act 1999
(Comm.)

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2012
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A/Senior Manager
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Planning approvals pathwaysPlanning approvals pathways
1. Exempt development
2. Complying development
3. Development with consent
4. State significant development
5. Development without consent
6. State significant infrastructure
7. Commonwealth controlled actions

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2012
Aaron Bowden
A/Senior Manager
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Exempt developmentExempt development
 Introduced in 1997 as
part of NSW
Government reforms to
streamline planning
approvals
 Minor works with
minimal environmental
impact
 No need for
development consent or
building certification

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2012
Aaron Bowden
A/Senior Manager
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Exempt developmentExempt development
 State Environmental Planning
Policy (Infrastructure) 2007
 Clause 20 – General
development
 Clause 82 – Rail facilities
 Clause 97 – Road facilities
 Enduring duty to consider
environmental impact under
section 111 of the
EP&A Act

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2012
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A/Senior Manager
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Complying developmentComplying development
 Commenced in 1997
 Principal certifying
authority
 Not utilised by
TfNSW
 Under Division 3,
Part 4 CDCs do not
apply to Crown
development

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2012
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A/Senior Manager
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Development with consentDevelopment with consent
 Local government
authority is the consent
authority
 Part 4 of the EP&A Act
 Permissibility usually
determined by local
environmental plans
(LEP)
 Can be problematic for
integrated delivery of
transport projects

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2012
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A/Senior Manager
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State significant developmentState significant development
 SSD is determined in
accordance with Division 4.1,
Part 4 of the EP&A Act
 Introduced in June 2011
 Minister for Planning the
consent authority
 Consent role delegated to
Planning Assessment
Commission

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2012
Aaron Bowden
A/Senior Manager
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State significant developmentState significant development
Fox Studios,
Moore Park
Westfield,
Eastgardens

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2012
Aaron Bowden
A/Senior Manager
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State significant developmentState significant development

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2012
Aaron Bowden
A/Senior Manager
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State significant developmentState significant development

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2012
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A/Senior Manager
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State significant developmentState significant development

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2012
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A/Senior Manager
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State significant developmentState significant development
 Asset Divestment
Program for residual
construction land
 North Ryde Precinct key
TfNSW opportunity for
transit oriented
development

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2012
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A/Senior Manager
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Development without consentDevelopment without consent
 Part 5 of the EP&A
Act
 TfNSW the
determining authority
 Most flexible and
efficient means of
assessment for
Transport Projects

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2012
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A/Senior Manager
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State significant infrastructureState significant infrastructure
 Required for activities
triggering the need for an
EIS and other activities
identified under the SRD
SEPP
 Assessed under
Part 5.1 of the
EP&A Act
 Minister for Planning is
the determining authority
 Mandatory consultation
and exhibition
requirements

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2012
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A/Senior Manager
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Navigating the processNavigating the process
 Transport Projects
Quality Management
System (QMS) /
Environmental
Management System
(EMS)
 Planning and
Environment Handbook
 Project Management
Methodology Framework
(PMMF)

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2012
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A/Senior Manager
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Navigating the processNavigating the process
 Step 1: What is the
activity?
 Nature
 Scale
 Extent
 Location
 Cost
 Duration

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A/Senior Manager
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Navigating the processNavigating the process
 Step 2: What is the
permissibility of the
activity on my site?
 Check the applicable
EPIs – particularly
the Infrastructure
SEPP, SRD SEPP
and the relevant LEP

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2012
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A/Senior Manager
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Navigating the processNavigating the process
 Step 3:
Significance of
impact

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A/Senior Manager
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Navigating the processNavigating the process
 ‘Fullest extent possible’,
as ‘reasonable and
practicable’
 Duty to consider
environment ongoing
 The nature and extent of
the activity sets the
scope of the
environment
 Significance of impact is
relative

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2012
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A/Senior Manager
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Ancillary developmentAncillary development
 ‘ancillary and
independent’ versus
‘ancillary and subsumed’
 Ancillary and subsumed
no longer a valid
argument
 Assessment level of the
dominant use does not
stop ancillary elements
from triggering higher
level of assessment or
additional approvals

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2012
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A/Senior Manager
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SubdivisionSubdivision
 Subdivision is included in
the definitions of both
‘development’ and
‘activity’ for the purposes
of the EP&A Act
 Infrastructure SEPP
makes some allowance
for subdivision as

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2012
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A/Senior Manager
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Critical infrastructureCritical infrastructure
 Ministerial declaration
 Essential for economic,
environmental or social
reasons
 Streamlined assessment
process
 Restrictions on the availability
of merit appeals
 Applies to SSI only

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2012
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A/Senior Manager
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StagingStaging
 SSI projects can be
staged
 Staging provisions allow
for an initial concept plan
to be approved with
subsequent more
detailed project
approvals
 South West Rail Link is
an example of a
successfully staged
approval process

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2012
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A/Senior Manager
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Post-approval considerationsPost-approval considerations
 Design development
is evolutionary
 EIA is done early in
design
 Scope change is
inevitable, post-
approval
 Need to compare the
impacts of the
approved project with
the new scope

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2012
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A/Senior Manager
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Post-approval considerationsPost-approval considerations
 Consistency assessment
checklists:
 Compares the likely
impacts of scope
changes with those of
the approved activity
 Allows the Director
Planning and
Assessments to
determine when a
formal modification to
approval is required

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2012
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A/Senior Manager
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Post-approval considerationsPost-approval considerations
 Modifications to
approval:
 Part 4: section 96
 SSD: section 96
 Part 5: section 111
 Part 5.1: section
115ZI

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2012
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A/Senior Manager
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Opportunities for improvementOpportunities for improvement

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2012
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A/Senior Manager
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Opportunities for improvementOpportunities for improvement
 Allowances for minor
retail development
permissible without
consent when ancillary
to transport works
 Allowances for
advertising to be
permissible without
consent when ancillary
to transport works
 Clarification of when an
EIS is required

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2012
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A/Senior Manager
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Opportunities for improvementOpportunities for improvement
 Guidance for when
modifications to SSI
approvals are required
 Clarification of trumping
provisions for combined
SSI/SSD projects
 Clarification/renewal of
bilateral agreement for
SSI projects with EPBC
Act referrals

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2012
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A/Senior Manager
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QuestionsQuestions

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A/Senior Manager
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ReferencesReferences
References:
TCA Annual Report 2011
TfNSW Website http://www.transport.nsw.gov.au
TfNSW Quality Management System (2012)
Figures:
All figures are copyright of TfNSW, except the following:
 Slides 13,16: NSW Parliamentary Counsels Office: http://www.legislation.nsw.gov.au
 Slide 17: NSW Government Licensing Service:
http://www.licence.nsw.gov.au/new/categories/home-owner-building-renovation
 Slide 20: Wikipedia: http://www.wikipedia.org
 Slide X: Macarthur Chronicle:
 Slide X: Rygate Surveyors, Subdivision design: http://www.rygate.com.au/subdesign.html
 Slide X: NSW Department of Planning: http://www.planning.nsw.gov.au
 Slide X: Tarte, Justin, Top 10 Questions to Ask Yourself:
http://justintarte.blogspot.com.au/2011/12/top-10-questions-to-ask-yourself-in.html

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2012
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A/Senior Manager
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ReferencesReferences
Legislation/Regulation:
 Environmental Planning and Assessment Act 1979
 Environmental Planning and Assessment Regulation 2000
 Environment Protection and Biodiversity Conservation Act 1999 (Comm.)
 Protection of the Environment Operations Act 1997
 State Environmental Planning Policy (Infrastructure) 2007
 State Environmental Planning Policy (State and Regional Development) 2011
 Transport Administration Act 1988

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2012
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A/Senior Manager
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ReferencesReferences
Cases:
 Guthega Development Pty Limited v. Minister Administering the National Parks and
Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353 at 366
 Transport Action Group Against Motorways Inc. v. RTA (1999) 104 LGERA 133 at 145 per
Mason P.
 Drummoyne Council v Maritime Services Board (1991) 72 LGRA 186
 Residents of Blacktown and Seven Hills Against Further Traffic Inc v RTA [1996] NSWLEC
170 - Pearlman CJ (21 June 1996)
 Bailey v. Forestry Commission of New South Wales (1989) 67 LGRA 200 at 211-212
 Residents Against Improper Development Inc & Anor vs Chase Property Investment Pty
Ltd (2006) NSWCA 323
Further queries:
Aaron Bowden, A/Senior Manager, Planning
E: aaron.bowden@projects.transport.nsw.gov.au
P: 9200 0200