In many cases public authorities can undertake development ‘without consent’ or ‘without development consent’. This means that they do not need a formal development application (DA) that is normally required for most development under Part 4 of the Environmental Planning and Assessment Act 1979.
Instead, they prepare a Review of Environmental Factors (REF) which is an assessment prepared for development that can be undertaken ‘without consent’ by, or on behalf of a ‘public authority’. This process of environmental impact assessment is undertaken under Part 5 of the NSW Environmental Planning and Assessment Act 1979 where public authorities are generally both the proponent and determining authority for the development.
In comparison to a DA, where an applicant prepares an application and council assesses the impacts and issues a development consent with conditions, the REF does all of this within one report. Generally, the REF will outline the proposal, assess the impacts of the development, and include mitigation measures or conditions which must be complied with by the government agency.
Barker Ryan Stewart has assisted a number of government agencies and public authorities through this process.
1. What is the process of REF Preparation?
- With assistance from Barker Ryan Stewart as required, public authorities will review legislation to determine if proposed works can be achieved on a ‘without consent’ basis, where DA approval is not required.
- Barker Ryan Stewart will undertake a preliminary review of the proposal and determine the need for supporting technical reports (e.g. bushfire, ecology, traffic, noise and vibration etc) required to enable assessment of environmental or other impacts.
- The public authority or Barker Ryan Stewart will engage qualified consultants to prepare technical reporting as required above.
- Barker Ryan Stewart will undertake preparation of a Review of Environmental Factors which can include required consultation with government agencies and surrounding development or land occupiers. The REF will also include safeguards or mitigation measures to ensure impacts to the environment and surrounding development are minimised. These safeguards are similar to traditional ‘conditions of consent’ provided within a DA and must be adhered to following agreement / certification by the public authority.
- The public authority will review the REF and determine if the development is likely to have a significant effect on the environment. Safeguards and mitigation measures are also reviewed for adequacy and the public authority determines whether the proposal can be supported for the development to proceed and formally certifies the document as a sign of agreement.
2. What type of projects are typically undertaken on ‘without consent’ basis?
Majority of the Part 5 development projects that Barker Ryan Stewart assist with are undertaken in accordance with the State Environmental Planning Policies including:
- State Environmental Planning Policy (Infrastructure) 2007 (ISEPP)
- State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP)
- State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Education SEPP)
The aim of the ISEPP is to facilitate efficient delivery of development and infrastructure, typically road and intersection upgrades, railways and rail infrastructure, development of public administration buildings and flood mitigation works for local and state governments. Under this policy, Barker Ryan Stewart has worked with various local councils throughout the state, water authorities, NSW Police and Transport for NSW.
Barker Ryan Stewart also has extensive experience assisting with the delivery of social and affordable housing developments under the ARH SEPP. Subdivisions, residential flat buildings and group homes can be undertaken without consent by public authorities to assist with delivery of accommodation for low income or at-risk persons.
In addition, we have worked with School Infrastructure and TAFE within NSW to undertake work on public schools and TAFE colleges across NSW.
3. Who is classified as a public authority?
A public authority means:
- A public or local authority constituted by or under an Act, or
- A Public Service agency, or
- A statutory body representing the Crown, or
- A Public Service senior executive within the meaning of the Government Sector Employment Act 2013, or
- A statutory state owned corporation (and its subsidiaries) within the meaning of the State Owned Corporations Act 1989, or
- A chief executive officer of a corporation or subsidiary referred to in paragraph (e), or
- A person prescribed by the regulations for the purposes of this definition.
4. Are private schools classified as a public authority?
The definition of ‘public authority’ in the Environmental Planning and Assessment Regulation 2000 confirms that Part 5 development under the Education SEPP is not only available to public schools but some non-government schools. An extract is provided for reference below:
Section 277 (6) For the purpose of the definition of public authority in section 1.4(1) of the Act, the proprietor of a registered non-government school is prescribed as a public authority (subject to subclause (7)), but only so as —
- To enable the proprietor to be treated as a public authority in relation to development in connection with the school that is exempt development under clause 18 of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, and
- To allow the proprietor to be a determining authority within the meaning of Part 5 of the Act for development that is permitted without consent under clause 36 of that Policy on land in a prescribed zone (within the meaning of clause 33 of that Policy).
Registered non-government schools (RDS) can therefore undertake internal environmental impact assessment of infrastructure projects through the REF process, should development meet certain legislative requirements outlined in the Education SEPP.
Barker Ryan Stewart has responded to a number of non-government schools looking to undertake works ‘without consent’ and are well placed to assist with initial planning advice to identify how schools can navigate the Part 5 legislation.
5. How Can Barker Ryan Stewart Assist?
Barker Ryan Stewart has provided our town planning, survey, civil engineering and traffic engineering services required for a number of recent Part 5 development projects throughout NSW.
With capabilities extending from REF preparation to road and civil design, flood impact, social impact assessment, and design of earthworks for local and state government authorities, Barker Ryan Stewart’s team is experienced in the design and environmental assessment of both large and small-scale infrastructure, education and other projects.
We also work with other sub-consultants as needed to cover other potential impacts such as ecology, bush fire and Aboriginal cultural heritage.
Some of the recent projects we have undertaken for public authorities include:
- Social housing developments including seniors housing, residential flat buildings and subdivision works for NSW Land and Housing Corporation.
- Design upgrade of Dunns Road for Wagga Wagga City Council.
- Road upgrades and roundabout design for the TfNSW Northern Distributer Road Roundabout for Orange City Council.
- Intersection upgrade of the Tomago Depot for Hunter Water.
- Rail infrastructure upgrades for John Holland Rail.
- Alterations and additions to TAFE NSW campuses in Grafton and Ballina.
- Demolition works for Central Coast Council.
- Depot upgrade for Blacktown City Council.
- Flood lights and open space amenities for City of Parramatta Council.
- Cumberland Swim Centre Modernisation Program for Cumberland City Council.
For any assistance with projects requiring the preparation of a Review or Environmental Factors or accompanying civil design, please don’t hesitate to contact us.