We have just received Director-General's requirements for a proposal under Part 3A explicity requiring that SEPP 44 be addresed.

So it obviously needs to be treated on a case-by-case basis - clearly it is not true that SEPP 44 is NEVER relevant under Part 3A. I would be wary about ignoring it where koalas or koala habitat could be an issue, even given the foregoing discussion. At least it should be flagged as an issue if not explicity addressed.

Martin is right - SEPP 44 applies to development applications made under Part 4 (only to land >1ha is area) and explicitly refers to 'Council' as the 'consent authority'. However, the Minister has the discretion to consider any pertinent SEPPs. So if you're development is removing a substantial area of Schedule 2 koala feed trees and there are prevoius records of koalas, then this should be made clear in your report, so the Minister can be advised of the impact in making his decision. SEPP 44 could be used to assist in assessing the impact of a Part 3A development, even though the Minister is not explicitly required to consider it.

The following points are also relevent:

Part 3A negates the approvals and license requirements of other Acts, which are listed under s.75U of the EP&A Act. However it does not negate the requirements of SEPPs.

Under s.75R(2) of the Act, SEPPs apply to

(b)  the carrying out of a [Part 3A] project, but (in the case of a critical infrastructure project) only to the extent that the provisions of such a policy expressly provide that they apply to and in respect of the particular project.

Under s.75I(2)(d) the Director-General is required to advise the Minister of any SEPPs that 'substantially govern the carrying out of the project'.

Hi Jenny,

My understanding of SEPP 44 and Part 3A projects is that SEPP44 doesn't apply to Part 3A projects because of the SEPP itself.

Section 6(b) of SEPP states that the SEPP applies to

b)  that is land in relation to which a development application has been made.

Strictly speaking development applications are only relevant under Part 4 of the EP&A Act. You don't submit a DA under Part 5 or Part 3A. The SEPP goes on to talke about Council as the determining authority, which supports this.

Hi all, My understanding of this 3A process (or its intent anyway) is that its not the assessment that changes but under what Act and who does the assessing of the assessment (if you know what i mean) in other words I still assess if there are Koalas or Koala habitat and what impact the development will have on them or their habitat but it is not assessed under SEPP 44 rather all aspects are assessed together under part 3A by the minister.

PS I saw the Minister on teely today saying he doesn't want to look at them all himself as there are too many and he wants to appoint regional assessment panels (might apply for a job!)

From an earlier guide by DIPNR,

"Environmental assessment and approval requirements are streamlined under the new Part 3A provisions. Part 4 and Part 5 of the Act do not, in general, apply. Approvals are other environmental legislation are generally not required. Guidelines have been prepared to assist in threatened species assessment and aboriginal culture heritage assessment:

Integrating Threatened Species Assessment and Aboriginal Cultural Heritage Assessment into Part 3A of the EP&A Act – What is different? (draft)

Hi Jenny, I have a friend from the Dept of Commerce who has recently done a training course on Part 3A and the associated SEPP and have asked him to provide an answer on yr question. I will report that in due course.

To throw the cat into the pigeons - while technically S5A assessments arent required (as detailed in the DEC/DPI draft 2005 guide) - I have a DGRs for EA that has - u guessed it - required them. It has the hide to actually ask for consideration of both the 2005 guidelines, and S5A. These DGRS are dated early 2006.

I'm a bit confused - where does it say that SEPP44 doesn't apply to Part 3A? In the EP&A legislation the following is written about SEPPs:

(2) Part 3 and State environmental planning policies apply to:

(a) the declaration of a project as a project to which this Part applies or as a critical infrastructure project, and

(b) the carrying out of a project, but (in the case of a critical infrastructure project) only to the extent that the provisions of such a policy expressly provide that they apply to and in respect of the particular project.

My legalese isn't crash hot, but it looks to me like all SEPPs would apply. Anyone with a legal background have any ideas on this?

Yep Martin your absolutely correct in regards to SEPP 44 and Part 5 matters, it slipped my mind in the posting. Ta.

SEPP 44 doesn't apply under projects being assessed under Part 5 either and applies only to Part 4 assessed projects (ie. projects for which a development application has been submitted).

I agree with Brett that dealing with Koalas under the threataned species provisions is more appropriate in the case of Part 3A projects. Although Section 5A assessments do not apply under Part 3A projects (there are general heads of consideration and thresholds instead).

Our approach is to prepare Part 3A Ecologcal assessments to the same level as they would if they were conducted under Parts 4 or 5 of the Act. That is we include sect 5A's (as we believe it is the only appropriate test) and a recent one actually merged a Koala Plan of Managment into the F/Fl assessment. This approach is to ensure all issues are adequately addressed. Personal communications with DOP have determined that this approach is applied by a few consultants in the Hunter region and hence they see this (particulalry Sect 5A) as standard.