New NSW Planning Reforms – Part 5 – Part 5 of the EPA Act and Infrastructure

In our final article we delve deeper into the proposed amendments to the NSW Environmental Planning and Assessment Act 1979 (EPA Act) under the Environmental Planning and Assessment (Planning Systems Reforms) Bill 2025 (Bill), with a particular focus on the proposed changes to Part 5 of the Act.

Part 5 of the EPA Act relates to environmental assessment of proposed ‘activities’ and State significant infrastructure.

Environmental Assessment

Section 5.5 of the EPA Act currently requires an authority proposing to approve or carry out an ‘activity’ 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’ (s 5.5).

An ‘activity’ for the purposes of Part 5 of the EPA Act includes the use of land or the carrying out of work for which development consent under Part 4 is not required. A ‘determining authority’ under Part 5 of the EPA Act is a Minister or public authority by or on whose behalf the activity is or is to be carried out, or whose approval is required in order to enable the activity to be carried out.  

The obligation to consider environmental impacts ‘to the fullest extent possible’ under Part 5 of the EPA Act has been interpreted by the Courts to mean ‘to the fullest extent reasonably possible’[1]. That obligation is to be replaced by an obligation to take into account matters likely to affect the environment ‘in a manner that is proportionate to the nature and risk of the activity’ (proposed s 5.5(2)).

This proposed amendment will affect the way determining authorities carry out Part 5 assessments and will minimise the risk of challenge to a Part 5 determination on the basis that the relevant authority has failed to consider a mandatory relevant matter (for example, specific environmental impacts). Determining authorities will, however, need to consider the nature and risk of the activity, and then determine the level of environmental assessment that is proportionate to the risks involved. Environmental assessment for low risk activities may not therefore need to be extensive. It is possible that there will be some challenges to Part 5 determinations over time that test the scope of the new provisions. Future decisions of the Court may assist with understanding the extent of the obligation.

State Significant Infrastructure

An amendment is proposed to s 5.12(4) of the EPA Act so that State significant infrastructure can be declared by a SEPP or by order of the Minister. Currently, an amendment to a SEPP is required.

[1]     Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353; Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598; Oshlack v Rous Water (2013) 194 LGERA 39; Snowy Mountains Brumby Sustainability and Management Group Inc v State of NSW [2020] NSWLEC 92.