Part 5 of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) sets out the environmental assessment scheme that applies to “activities” undertaken by or on behalf of a public authority (including local councils) or which requires the approval of such an authority.
This scheme includes a duty in section 5.5 of the EP&A Act to “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity”, as well as duties in section 5.7 to determine whether an activity is “likely to significantly affect the environment” and, if so, to not carry out or grant an approval with respect to the activity unless an environmental impact statement (“EIS”) has been provided, examined and considered.
The Environmental Planning and Assessment Regulation 2000 expanded upon the requirements for assessments under Part 5 of the EP&A Act, including by enabling the Planning Secretary to establish guidelines for the factors to be taken into account and otherwise specifying default factors where no such guidelines are in force.
The guidelines in force under that clause are the guidelines titled “Is an EIS required? Best Practice Guideline for Part 5 of the EP&A Act”, published by the Department of Planning in 1995 (“1995 Guidelines”).
It was a matter of common practice for public authority seeking to carry out an activity to record their assessment for the purposes of sections 5.5 and 5.7 of the EP&A Act in a document stylised as a “review of environmental factors” (“REF”), in addition to an EIS where the activity was concluded to be likely to significantly affect the environment.
A number of amendments have been made to these provisions with the commencement of the Environmental Planning and Assessment Regulation 2021 (“EP&A Regulation 2021”) on 1 March 2022.
Most importantly, clause 171 of the EP&A Regulation 2021 contains an obligation to consider the likely impact on an activity on the environment with reference to the factors specified in the guidelines or the default factors listed, and to prepare a REF demonstrating how the environmental factors were taken into consideration, thereby providing the first statutory recognition of REFs.
The Department of Planning and Environment’s has prepared new guidelines under clause 171 of the EP&A Regulation 2021 titled the “Guidelines for Division 5.1 assessments” (“the Guidelines”), which will replace the 1995 Guidelines.
The Guidelines come into effect on 1 July 2022 and will be the reference point for the preparation of REFs until such a time as they are varied or revoked.
A copy of the Guidelines can be accessed here.
For further information on these planning and environmental law updates, please contact Adam Seton on aseton@marsdens.net.au or (02) 4626 5077 and David Baird on dbaird@marsdens.net.au or (02) 4626 5077.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
