Environmental Planning and Assessment Amendment (Sydney Drinking Water Catchment) Act 2017 (NSW)

Environmental Planning and Assessment Amendment (Sydney Drinking Water Catchment) Act 2017

An Act to amend the Environmental Planning and Assessment Act 1979 and State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 to clarify the test for granting development consent in relation to the Sydney drinking water catchment and to validate a development consent relating to the Springvale mine extension.

1Name of Act

This Act is the Environmental Planning and Assessment Amendment (Sydney Drinking Water Catchment) Act 2017.

2Commencement

This Act commences on the date of assent to this Act.

Schedule 1Amendment of Environmental Planning and Assessment Act 1979 No 203[1]Section 34B Special provision for development in Sydney water catchment relating to water quality

Insert after section 34B (2):

(2A)

A State environmental planning policy that requires proposed development to have a neutral or beneficial effect on the quality of water may deal with the application of that test in the case of proposed development that extends or expands existing development.

[2]Section 34B (3)

Omit the subsection and the note to the subsection.

[3]Schedule 7, heading

Omit “Transferred provisions”. Insert instead “Special provisions”.

[4]Schedule 7

Insert at the end of the Schedule:

Part 4Validation of development consent relating to Springvale mine extension etc8Definitions

In this Part:

Springvale mine extension development consent means the development consent granted, or purported to have been granted, on 21 September 2015 with respect to State significant development application number SSD 5594 (being the development consent the subject of the proceedings in 4nature Incorporated v Centennial Springvale Pty Ltd[2017] NSWCA 191), together with any modifications of that consent granted or purported to have been granted before the commencement of the amending Act.

the amending Act means the Environmental Planning and Assessment Amendment (Sydney Drinking Water Catchment) Act 2017.

this Act includes:

• (a)

  the regulations under this Act, and

• (b)

  State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 and any other environmental planning instrument.

9Validation of Springvale mine extension development consent(1)

The Springvale mine extension development consent is validated (to the extent of any invalidity), and is taken:

• (a)

  to have been duly granted in accordance with this Act and otherwise in accordance with law, and

• (b)

  to have been duly granted on 21 September 2015, and thereafter to be, and to have been at all relevant times, a valid development consent.

(2)

Without limiting subclause (1), the granting of a mining lease or any other thing done or omitted to be done on or after 21 September 2015 is as valid as it would have been had the development consent concerned been in force when the mining lease was granted or the thing was done or omitted.

(3)

This clause has effect despite the existence of any proceedings pending in any court immediately before the commencement of the amending Act or the decision in any such proceedings or in any other proceedings instituted before that commencement.

(4)

If any proceedings are withdrawn or terminated (or any decision in any proceedings no longer has effect) because of the operation of the amending Act, the Treasurer may, in the absolute discretion of the Treasurer, pay to any party to those proceedings the whole or any part of any amount that the Attorney General, on application made to the Attorney General in writing by or on behalf of that party, certifies as being the costs of or incidental to the proceedings reasonably incurred by that party. This subclause does not apply to any party to the proceedings to whom or for whose benefit a development consent the subject of the proceedings was granted.

10Other development consents not subject to challenge(1)

This clause applies to any development consent granted, or purported to have been granted, before the commencement of the amending Act (other than the Springvale mine extension development consent) to which State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 applied.

(2)

After the commencement of the amending Act, any such development consent is not subject to challenge on the ground that it was not granted in accordance with this Act and State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 if the development consent was granted in accordance with this Act and that Policy, as amended by the amending Act.

Schedule 2Amendment of State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011

Insert after clause 11:

11ANeutral or beneficial effect on water quality—continuing development(1)

This clause applies for the purposes of determining under this Policy whether the carrying out of continuing development on land in the Sydney drinking water catchment would have a neutral or beneficial effect on water quality.

(2)

Continuing development is any development (such as mining) for which development consent was limited to the carrying out of the development for a particular time or to a particular area or intensity, but which was likely to be the subject of future applications for consent for its extension or expansion.

(3)

If:

• (a)

  development consent was granted for continuing development (“the existing development consent”), and

• (b)

  a development application is made for consent to extend or expand the carrying out of the development (“the proposed development”), and

• (c)

  the development application is made before the authority conferred by the existing development consent expires or is exhausted,

the carrying out of the proposed development will have a neutral or beneficial effect on water quality if it will have the same or a lesser adverse impact on water quality when compared to the adverse impact that the continuing development would have if it were extended or expanded under similar conditions as the existing development consent.

(4)

Subclause (3) extends to an existing development consent that is to be surrendered if consent is granted on the determination of the development application.

(5)

In this clause, a reference to an existing development consent includes a reference to a project approved under Part 3A of the Act before its repeal (or granted after its repeal pursuant to Schedule 6A to the Act).