Guide 5 of 5 · NSW Victoria
Environmental assessment in a development application, NSW and Victoria
In NSW, a development application must include an environmental assessment, usually a statement of environmental effects, and sometimes an environmental impact statement (EIS) where potential impacts are higher. In Victoria, a project that could have a significant effect on the environment is referred to the Minister for Planning under the Environment Effects Act 1978, who decides whether an Environment Effects Statement (EES) or other assessment is needed.
General information about NSW and Victorian planning law only, not legal advice. This guide rests on NSW Planning’s pages on local and state significant development, and on the Victorian Department of Transport and Planning’s environmental assessment guides, which are paraphrased. Those departments and the local council are the official places to check.
NSW First, does it need consent?
NSW Planning says to start with the zoning tables in the local environmental plan (LEP) or state environmental planning policies (SEPPs) for the area. The NSW Planning Portal shows the planning constraints and zoning rules for a property address. LEPs and SEPPs put development into one of three categories:
- no consent needed;
- consent needed;
- prohibited.
Where consent is needed, the application goes to the consent authority, usually the local council. NSW Planning lists what it must include: “a description of the development”, the estimated cost, a plan of the land, a drawing of the development, and the environmental assessment.
NSW How deep the assessment goes
“The level of environmental assessment that must be provided with the development application will differ depending on the likely impacts of the development.” So do the procedures, the notification and the appeal rights, depending on how the development is categorised. NSW Planning says there are 9 planning approval pathways in all; the table sets out four of the categories its pages describe.
| Category | What makes it so | What the assessment involves |
|---|---|---|
| Local development | An LEP or SEPP requires consent, and it is not regionally or state significant. The most common type in NSW. | Usually a statement of environmental effects. |
| Designated development | High-impact development, for example likely to generate pollution, or in or near an environmentally sensitive area such as a wetland. Examples include chemical factories, large marinas, quarries and sewerage treatment works. | An EIS prepared to the Planning Secretary’s requirements, public notification for at least 28 days, and objectors can bring a merits appeal in the Land and Environment Court. |
| Integrated development | It also needs a permit from another approval body, such as a pollution licence or an Aboriginal heritage impact permit. | How the approval body’s terms and a recommended refusal work is set out in NSW environment protection licences. |
| State significant development | Development important to NSW for economic, environmental or social reasons, as listed in a SEPP, or called in by the Minister for Planning. | The Department coordinates the assessment; applications are publicly exhibited for at least 28 days (14 for relevant residential applications), and are decided by the Minister for Planning, the Independent Planning Commission, or a delegate. |
Notice periods also depend on the category: 14 days for advertised development, or 28 days for integrated development and threatened species development. For an industrial premises, the pollution licence side is set out in NSW environment protection licences.
For state significant development, every applicant pays a fee for the Department’s assessment, and the application is not treated as lodged until fees are paid. An applicant can appeal a determination to the Land and Environment Court within 6 months of the decision.
Victoria The referral under the Environment Effects Act
Victoria works differently. Its planning department’s guidelines say that where a new or changed project could reasonably be expected to have the potential for a significant environmental effect, the proponent or a decision-maker has to ask the Minister whether an assessment is required. Proponents are encouraged to do a thorough self-assessment against the referral criteria first.
The guidelines list individual types of potential effect that warrant referring a project. Among them:
- potential loss of a significant proportion (for example, 1 per cent or more) of a threatened species’ known remaining habitat or population in Victoria;
- potential extensive or major effects from pollution or waste released to air, land, water or groundwater, whether on human health, on the environment or by displacing residents;
- potential greenhouse gas emissions above 200,000 tonnes of carbon dioxide equivalent a year, direct and indirect, from the facility’s operation.
Three rules shape the referral itself. A project should be referred as a whole where possible, including essential offsite works and later stages it needs to operate. A modified project with the potential for new or additional significant effects should be referred, even if the original was referred or assessed. And identifying potential significant effects does not mean an assessment will necessarily be required.
While the Minister considers a referral, statutory decisions on the project are typically put on hold.
Victoria If an EES is required
- Scoping. The Minister issues scoping requirements setting out what the EES must investigate. Draft requirements go out for public comment for at least 15 business days.
- Preparation. The proponent prepares the EES, with a study program and consultation plan, advised by a technical reference group of government agencies, local government and statutory authorities.
- Exhibition. Once the Minister is satisfied with it, the EES is released for public comment for 20 to 30 business days, and anyone can make a written submission.
- Inquiry. The Minister may appoint an inquiry to evaluate the project’s effects.
- The Minister’s assessment. Normally provided within 25 business days of the inquiry report being finalised. Decision-makers must consider it; its recommendations are authoritative but not usually binding.
The Commonwealth layer on top
None of this replaces the federal question. The National EPA says a project that might affect protected matters may need Australian Government approval as well as any state, territory or local government approvals. That process is in the EPBC referral.