Quick fix for State significant development? New legislation responds to Court of Appeal case on enabling infrastructure

The Environmental Planning and Assessment Amendment (State Significant Development) Act 2024 (SSD Amendment Act) passed NSW Parliament on 21 November 2024 and currently awaits assent.  It was introduced to address the NSW Court of Appeal’s decision in Bingman Catchment Landcare Group Incorporated v. Bowdens Silver Pty Ltd [2024] NSWCA 205 which declared invalid a development consent granted to a metals mine, because it did not address the environmental impacts of an electricity transmission line which was needed to enable the mine to operate, but was to be the subject of a separate assessment process.

The Bingman case has implications for both SSD and non-SSD projects across a wide range of industries, including energy and resources, housing, industrial, and social and other infrastructure projects.

The SSD Amendment Act aims to provide a lawful basis for the common practice of using separate planning pathways for offsite enabling infrastructure (OEI) and the State Significant Development (SSD) project which that infrastructure services.

In this article, we look at the issue which Parliament was trying to fix, how the fix works, and what this means for major project proponents and OEI operators.

Usual planning pathways for major projects and OEI

Many major projects rely on the delivery of essential OEI, such as public roads and utility service lines (for electricity, gas, water, wastewater and communications, and among others). Typically, in these scenarios:

• the major project proponent seeks planning approval for its project separately from the OEI – often, this will be a development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (Planning Act); and
• the OEI operator separately addresses the planning law requirements for the OEI using a planning assessment and authorisation pathway which would usually apply to that OEI – often, this will be:
• a separate development consent under Part 4 of the Planning Act;
• assessment as development which is permissible without consent under Part 5 Division 5.1 of the Planning Act; or
• exempt or complying development under Part 4 of the Planning Act.

This practice provides real practical benefits and clearer lines for each of these developments, but it has raised legal questions from time to time.

Why the Court disapproved the assessment in this case

A local landcare group challenged the lawfulness of the development consent for the Bowdens silver, lead and zinc mine near Mudgee in central NSW, because it did not incorporate the electricity transmission line which had to be constructed to service the mine. Given that the mine is SSD, the development application (DA) included an EIS and an extensive assessment process, and development consent was granted by the Independent Planning Commission (IPC).

The Land and Environment Court (L+E Court) dismissed the legal challenge, saying that the transmission line was essentially separate and did not need to be assessed as part of the development application for the mine because the route of the transmission line had not been determined.  The Court of Appeal disagreed on both counts, and ruled the consent invalid.

The SSD scheme can draw in OEI to become part of the SSD project which it services

Section 4.38(4) of the Planning Act states that “if part of a single proposed development which is SSD” requires development consent to be carried out and the other part may be carried out without development consent, then:

• the usual planning pathway which applies to that other part does not apply in this case; and
• instead, that other part “is taken to be” SSD.

The NSW Court of Appeal decided that section 4.38(4) captured the transmission line and made it part of the SSD project (ie. the mine), because it was “integral” to the development of the mine, in terms of the costings, construction schedule and other measures of project definition.  It had also been described in evidence as a “component” of the mine project.

The Court of Appeal said that the mine and the transmission line could be addressed in separate DAs, but the transmission line could not be addressed as development which was permissible without consent, as it usually would be, because of its connection to the mine.

The impacts of the transmission line had to be considered as part of the mine DA

Section 4.15 of the Planning Act requires a consent authority, when determining a DA (in this case, the IPC), to take into account various “matters as are of relevance to the development the subject of the [DA]”, including the “likely impacts of the development”.

The Courts have held that the requirement to consider impacts includes both the direct and the indirect impacts of a development. Determining what is an indirect impact of a development is largely a matter of ascertaining how “remote” from the development that impact is.  When the issue involves another development (such as the transmission line in this case), a key issue is whether there is a “real and sufficient connection” between the two developments.

In this case, Bowdens argued that the transmission line route had not been determined, and so it was not possible to reliably assess its potential impacts, and the L+E Court agreed.  However, the Court of Appeal found that the transmission line route was sufficiently well established to enable its impacts to be assessed as part of the mine DA, and the failure to do so rendered the mine development consent invalid.

The Parliamentary fix

The SSD Amendment Act does two things:

• it allows the Secretary of the Department of Planning, Housing and Infrastructure (DPHI) to determine whether a particular development does or does not form part of the “single proposed development” for the purposes of section 4.38(4) of the Planning Act; and
• it validates things done (or omitted to be done), including development consents granted, before the SSD Amendment Act commences if they would have been invalid as a result of section 4.38(4) (as interpreted in the Bingman decision), but this does not include development consents which a Court has declared invalid (such as the Bowdens mine consent).