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Nation Building and Jobs Plan (State Infrastructure Delivery) Act ...2010427234750

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Nation Building and Jobs Plan (State Infrastructure Delivery) Act ...2010427234750

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									                                                                                                     Minter Ellison
                                                                      Nation Building and Jobs Plan Act 2009 page 1


                        Nation Building and Jobs Plan (State
                        Infrastructure Delivery) Act 2009
                        (NSW)
                        The Nation Building and Jobs Plan (State Infrastructure Delivery) Bill 2009 (NSW)
                        was introduced into the Legislative Assembly and the responsible Minister's second
                        reading speech was given on 4 March 2009. The Bill was passed by the Legislative
                        Council on 11 March 2009 became law on 13 March 2009.

                        According to the second reading speech, the Act seeks to facilitate the rapid
                        delivery of the infrastructure projects funded by the Federal government under its
                        Nation Building and Jobs Plan announced on 3 February 2009. The aim of the Act is
                        to stimulate the economy and generate employment in order to reduce the impact
                        of the global economic crisis on the State.

                        Specifically, the Act provides for the following:

                        1.     Infrastructure projects to which Act applies
                                Section 5 of the Act provides that it applies only to infrastructure projects
                                that are funded under the Nation Building and Jobs Plan, which includes the
                                Building the Education Revolution ('BER') scheme. Examples of such
                                infrastructure projects include halls, libraries and maintenance work for
                                government and non-government schools.
                        2.     Infrastructure Co-ordinator General

                                Part 2 of the Act provides for the appointment of a NSW Infrastructure Co-
                                ordinator General, who will be responsible for planning and implementing
                                the timely delivery of the infrastructure projects, as well as appointment of
                                an Advisory Taskforce consisting of government and private sector
                                representatives to provide advice on the exercise of functions by the Co-
                                ordinator General.
                                Importantly, section 8 of the Act permits the delegation of authority by the
                                Co-ordinator General to a government agency or member of staff of a
                                government agency.

                        3.     Co-ordination of State government agencies in delivering
                               infrastructure projects

                                Part 3 of the Act requires the cooperation of State government agencies
                                with the Co-ordinator General in relation to infrastructure projects to ensure
                                timely delivery. Part 3 also stipulates the powers and obligations of such
                                agencies and the Minister’s power to order compliance with the directions of
                                the Co-ordinator General. This Part does not apply to a council (within the
                                meaning of the Local Government Act 1993) or other local authority.
                        4.     Authorisation of infrastructure projects
                                Part 5 of the Act is the most significant for the AIS and its members. It
                                allows the Co-ordinator General to vary the usual planning and
                                environmental approval process in relation to infrastructure projects to
                                ensure that the projects are delivered within the timeframes required by the
                                Commonwealth. Specifically this Part provides:

                                4.1    Exemption of approval requirements under other Acts
                                        Section 23 enables the Co-ordinator General to declare that a
                                        particular infrastructure project or an infrastructure project of a




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                                                            Nation Building and Jobs Plan Act 2009 page 2

                              specified class (for example, the development of any school under
                              the BER) is exempt from all or any of:
                              (i)    the Environmental Planning & Assessment Act 1979 (NSW)
                                     ('EP&A Act'); or

                              (ii)   any other Act that prohibits the carrying out of development
                                     or that requires the approval of any person or body before
                                     development is carried out.
                              Alternatively the Co-ordinator General may declare that an
                              infrastructure project will be exempt from such legislation if the
                              carrying out of the project is authorised by the Co-ordinator General
                              pursuant to section 24 (see below).

                              Importantly, the 'other Acts' referred to above include the Rural
                              Fires Act 1997, the Water Management Act 2000, the Rivers and
                              Foreshores Improvement Act 1948 and the Heritage Act 1977. This
                              means that if a declaration was made by the Co-ordinator General
                              relating to a specified or class of projects, those projects would be
                              permitted to be carried out without the requirement of an approval
                              from any other authority. This is particularly significant for AIS
                              member schools as many schools are located on land which is bush
                              fire prone, contains a heritage item or is within 40m of a creek.
                        4.2   Alternative authorisation to carry out infrastructure projects

                              Section 24 applies if an order under section 23 provides that the
                              carrying out of an infrastructure project requires the authorisation
                              of the Co-ordinator General. We consider that it is likely that if a
                              general exemption was granted for schools by the Co-ordinator
                              General under section 23, s/he would make the declaration subject
                              to the granting of an authorisation under this section.
                              Specifically this section provides:

                                     (A)     The person proposing to carry out the infrastructure
                                             project (or a person on his or her behalf) may apply
                                             to the Co-ordinator General for an authorisation to
                                             carry out the project. The application must be made
                                             in writing and include information describing the
                                             infrastructure project, the land upon which the
                                             project is to be carried out, the commencement and
                                             anticipated completion date of the project, and any
                                             other information relating to the project that the
                                             regulations, or the Co-ordinator General, require to
                                             be included.
                                     (B)     The Co-ordinator General may authorise carrying out
                                             of the infrastructure project subject to conditions
                                             (relating for example to public notification,
                                             environmental protection, heritage conservation,
                                             threatened species and bushfire protection). Such an
                                             authorisation is taken to be a development consent
                                             under the EP&A Act for the purposes of the National
                                             Parks and Wildlife Act 1974, the Fisheries
                                             Management Act 1994, the Native Vegetation Act
                                             2003, and other prescribed legislation.
                        4.3   Application of the EP&A Act

                              Section 25 of the Act relates to the application of the EP&A Act to
                              infrastructure projects where an exemption from that Act is given




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                                    by the Co-ordinator General. The section provides, among other
                                    things, that any current environmental planning instruments
                                    (including the State Environmental Planning Policy (Infrastructure)
                                    2007) cannot require development consent for, or otherwise
                                    restrict, such a project.
                                    This means that if a class of projects, such as schools, was declared
                                    to be exempt from the requirement to comply with the EP&A Act,
                                    development consent would not be required for the projects. It
                                    should be noted however that whilst development consent may not
                                    be required, the Co-ordinator General may include conditions of his
                                    authorisation relating to the carrying out of the project such as the
                                    carrying out of bush fire protection measures or the conservation of
                                    heritage items.
                             4.4    Notification to Council
                                    The Co-ordinator General may (but is not compelled to) provide a
                                    copy of an exemption under section 23 or an authorisation under
                                    section 24 to the relevant local Council in which the infrastructure
                                    project to which the exemption or authorisation relates.
                        5.   Regulations
                             Section 29 enables the Governor to make regulations for the purposes of
                             the proposed Act, including regulations of a savings or transitional nature
                             consequent on the enactment of the proposed Act. We anticipate that the
                             regulations will contain details regarding the process for applying for
                             exemptions and authorisations under sections 23 and 24 of the Act.

                             The regulations may also make provision for the purposes of restoring the
                             application of the EP&A Act to infrastructure projects carried out under the
                             proposed Act. This means that if an authorisation is granted by the Co-
                             ordinator General, the regulations may declare that any such authorisation
                             is a development consent for the purposes of the EP&A Act and may apply
                             certain provisions of the EP&A Act to the authorisation. The regulations may
                             also provide for application of the existing uses provisions of the EP&A Act
                             to a project notwithstanding that the Co-ordinator General has declared
                             that it is a project to which the EP&A Act does not otherwise apply.
                        6.   What the Act means for AIS schools
                             Section 23 of the Act enables the Co-ordinator General to declare certain
                             infrastructure projects, such as the expansion of schools under the BER,
                             exempt from the provisions of the EP&A Act or any other Act which requires
                             the approval of a person prior to development consent being granted.
                             For example, this would mean that section 76A of the EP&A Act which
                             prohibits development on land which contains heritage items from being
                             complying development, would not apply to projects declared by the Co-
                             ordinator as being exempt from the Act. Such projects could therefore be
                             complying development even if they are proposed to be carried out on land
                             on which there is a heritage item.

                             In the event that a project is declared to be exempt from the requirements
                             of the EP&A Act and receives the authorisation of the Co-ordinator General
                             under section 24, the project would not require development consent. In
                             the event that such an authorisation was granted the school would be
                             required to carry out the development in accordance with the conditions of
                             the authorisation. The project may also be exempt from the requirement to
                             obtain any other approvals under any other Act (such as a bush fire safety
                             authority), if the Co-ordinator General includes in his declaration that the




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                        project is exempt from the requirements of any other Acts that require the
                        approval of a person prior to development being carried out.
                        It is likely that if the Co-ordinator General makes such a declaration, it will
                        be made subject to the granting of an authorisation for each project to
                        ensure that any appropriate environmental measures are included as
                        conditions of each authorisation (such as bush fire protection and heritage
                        conservation measures).




ME_79225088_1 (W2003)

								
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