1. DRAFT Overview of the EIA Improvement Project v7.0€¦ · Overview of the EIA Improvement...

Draft Environmental Impact Assessement Guidance Series June 2017

Guideline

1

Overview of the EIA

Improvement Project

DRAFT FOR PUBLIC EXHIBITIONDRAFT FOR PUBLIC EXHIBITIONDRAFT FOR PUBLIC EXHIBITIONDRAFT FOR PUBLIC EXHIBITION

Overview of the EIA Improvement ProjectOverview of the EIA Improvement ProjectOverview of the EIA Improvement ProjectOverview of the EIA Improvement Project | June 2017 iiiiiiii

June 2017

© Crown Copyright 2017 NSW Government

ISBN 978-0-6480102-0-3

Disclaimer

While every reasonable effort has been made to ensure that this document is correct at the time of printing, the

State of NSW, its agents and employees, disclaim any and all liability to any person in respect of anything or the

consequences of anything done or omitted to be done in reliance or upon the whole or any part of this

document.

Copyright notice

In keeping with the NSW Government’s commitment to encourage the availability of information, you are

welcome to reproduce the material that appears in the ‘Overview of the EIA Improvement Project’ for personal,

in-house or non-commercial use without formal permission or charge. All other rights are reserved. If you wish to

reproduce, alter, store or transmit material appearing in the ‘Overview of the EIA Improvement Project’ for any

other purpose, a request for formal permission should be directed to Planning Services, NSW Department of

Planning and Environment, GPO Box 39 Sydney NSW 2001.


Overview of the EIA Improvement ProjectOverview of the EIA Improvement ProjectOverview of the EIA Improvement ProjectOverview of the EIA Improvement Project | June 2017 iiiiiiiiiiii

Contents

1.1.1.1. IntroductionIntroductionIntroductionIntroduction 1111

1.1 Purpose of the EIA Improvement Project 1

1.2 Benefits of the EIA Improvement Project 2

1.3 Approach to delivering the EIA Improvement Project 2

1.3.1 Legislative framework 2

1.3.2 Principles to guide EIA 3

2.2.2.2. EIA for State significant projectsEIA for State significant projectsEIA for State significant projectsEIA for State significant projects 7777

3.3.3.3. Summary of proposed changesSummary of proposed changesSummary of proposed changesSummary of proposed changes 8888

3.1 Introduction 8

3.2 Community Guide to EIA 9

3.3 Scoping an Environmental Impact Statement 9

3.4 Preparing an Environmental Impact Statement 10

3.5 Responding to Submissions 12

3.6 Community and Stakeholder Engagement 13

3.7 Approach to Setting Conditions 15

3.8 Modifying an Approved Project 16

3.9 Peer Review 17

3.10 Additional improvements 18

3.10.1 Professional practice requirements for EIA consultants 18

3.10.2 Cumulative impact assessment 18

3.10.3 Review of EIA documents by the Department 19

4.4.4.4. Implementation of changesImplementation of changesImplementation of changesImplementation of changes 20202020

5.5.5.5. Relationship to other Department initiativesRelationship to other Department initiativesRelationship to other Department initiativesRelationship to other Department initiatives 21212121

5.1 Introduction 21

5.2 Legislative updates 21

5.3 Draft Social Impact Assessment Guideline 22

6.6.6.6. Have your sayHave your sayHave your sayHave your say 23232323

7.7.7.7. GlossaryGlossaryGlossaryGlossary 24242424


Overview of the EIA Improvement ProjectOverview of the EIA Improvement ProjectOverview of the EIA Improvement ProjectOverview of the EIA Improvement Project | May 2017

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1.1.1.1. IntroductionIntroductionIntroductionIntroduction

1.11.11.11.1 PurposePurposePurposePurpose of the EIA Improvement Projectof the EIA Improvement Projectof the EIA Improvement Projectof the EIA Improvement Project

The Department of Planning and Environment (the Department) is undertaking a review of environmental impact

assessment (EIA) for State significant projects in NSW (the EIA Improvement Project).

The purpose of the EIA Improvement Project is to:

• identify areas where EIA can be improved across the entire project cycle, including before and after

approval, while working within the existing legal framework of the Environmental Planning and

Assessment Act 1979 (the Act)

• set out the Department’s expectations about the form and content of the Environmental Impact

Statement (EIS) and other EIA documents, recognising the primary role of EIA is to provide decision-

makers with the information needed to make sound planning and environmental decisions

• improve opportunities for public participation in EIA and clarify how feedback is taken into account in

project development and decision-making

• strengthen planning and environmental outcomes by creating a clearer link between the identification

and assessment of impacts, conditions of consent and actions to manage impacts during construction

and operation

• build community and stakeholder confidence in EIA and decision-making

• provide industry with greater certainty about EIA timeframes and expectations for information to be

contained in EIA documents.

The review has informed the development of a number of proposed changes to EIA which have been the subject

of engagement with the community and other stakeholders including local government and State government

agencies. The proposed changes are described in a series of draft EIA Guidelines, which are the subject of this

exhibition.

The purpose of this document is to:

• provide an overview of the current approach to EIA for State significant projects in NSW to set the

context for the EIA Improvement Project

• summarise the proposed changes which are described in the draft EIA Guidelines

• provide a brief introduction to additional improvements being developed in a subsequent stage of the

EIA Improvement Project

• explain how the draft EIA Guidelines relate to each other

• explain the relationship to other relevant initiatives currently being undertaken by the Department

• describe the next steps including how to make a submission in response to the exhibition of the draft

EIA Guidelines.


Overview of the EIA Improvement ProjectOverview of the EIA Improvement ProjectOverview of the EIA Improvement ProjectOverview of the EIA Improvement Project | June 2017 2222

It is intended that this document will be used by those wishing to obtain an overview of the project while also

identifying where further detail on specific initiatives can be found.

1.21.21.21.2 Benefits of the EIA Improvement ProjectBenefits of the EIA Improvement ProjectBenefits of the EIA Improvement ProjectBenefits of the EIA Improvement Project

The Project will deliver benefits to all EIA participants ---- the community and other stakeholders, proponents,

regulatory agencies and decision-makers. These include:

• greater participation of the community and other stakeholders in EIA by providing a clear explanation of

the process and the opportunities for participation, including earlier participation when the matters to

be addressed in the EIS are still being finalised

• greater potential to resolve community and other stakeholder concerns during the preparation of the

EIS ---- by way of earlier identification of those concerns ---- rather than relying on the formal submissions

process during EIS exhibition

• providing assessment officers and decision-makers with the information needed to support decision-

making by having the EIS focus on the most relevant matters identified through scoping and tailoring

the level of assessment based on its relative importance

• reduced EIA assessment and approval timeframes by providing proponents with greater clarity about

what information is needed by the Department to make project approval decisions. This will reduce the

need for the Department to request additional information or clarification during assessment

• greater certainty and transparency for the community and other stakeholders, proponents and

assessment and compliance officers over the project for which approval is sought and how changes to

that project are managed in the post-approval phase

• an increased focus on the entire project cycle, managing impacts by linking conditions of consent to the

prediction of impacts and supported by clearer compliance and enforcement measures.

The overall effect of the EIA Improvement Project is to strengthen EIA, provide clarity and guidance for

proponents, regulatory agencies, the community and other stakeholders, and improve consistency and quality

of EIA documents while maintaining a focus on environmental outcomes.

1.31.31.31.3 Approach to delivering tApproach to delivering tApproach to delivering tApproach to delivering the EIA Improvement Projecthe EIA Improvement Projecthe EIA Improvement Projecthe EIA Improvement Project

1.3.11.3.11.3.11.3.1 Legislative frameworkLegislative frameworkLegislative frameworkLegislative framework

The EIA Improvement Project proposes changes to EIA that fit within the existing legislative framework.

The Environmental Planning and Assessment Act 1979 (the Act) is the principal environmental planning

legislation in NSW, providing a framework for planning decision-making and placing EIA in the broader context

of environmental planning.

The Act sets the objectives of the legislation, authorises the making of plans and provides for the assessment of a

Development Application to obtain consent for projects. For activities not requiring development consent and

which are not prohibited by a plan, the Act provides a process for the environmental assessment of those

activities.



The Act integrates EIA as a decision-making tool with the development control system requiring environmental,

social and economic factors to be taken into account by decision-makers.

The Act and associated Environmental Planning and Assessment Regulation 2000 (the Regulation) set out how

EIA is carried out. This includes the following steps:

• a request for Secretary’s Environmental Assessment Requirements (SEARs), prepared in consultation

with relevant public authorities, to confirm the scope of the EIS

• preparation of an EIS to address the Secretary’s Environmental Assessment Requirements

• public exhibition of the EIS, invitation of submissions and preparation of a Response to Submissions

• determination by the decision-making authority, including conditions requiring the proponent to

manage environmental impacts in the post-approval phase.

The Regulation also includes requirements for the form and content of an EIS.

1.3.21.3.21.3.21.3.2 Principles to guide EIAPrinciples to guide EIAPrinciples to guide EIAPrinciples to guide EIA

The EIA Improvement Project promotes a number of underlying principles that, if consistently applied

throughout EIA, will lead to improved assessment and determination times and better planning outcomes for the

community and environment.

The following principles underpin the approach to EIA for State significant projects in NSW:

• Ecologically Sustainable Development (ESD): one of the objects of the Act is to encourage ESD. EIA

requires the effective integration of economic and environmental considerations in decision-making

processes

• Proportionality: the level of assessment of a matter in an EIS should be based on its relative importance

in informing a determination. Any condition of approval should also reflect the importance of the matter

and not seek to control and regulate matters of minor detail

• Mitigation hierarchy: environmental impacts should be addressed through a sequential and cascading

response starting with avoidance and progressing through minimisation to management and in some

cases, offsets. The rationale for the hierarchy is to limit the extent of the environmental impacts and

where they occur, to internalise them to the project site as much as practicable

• Earlier and better engagement: public participation in EIA recognises that people should have a say in

matters that affect their lives, and that community and other stakeholder engagement results in better

planning outcomes. Earlier engagement allows issues which are important to the community and other

stakeholders to be identified early in EIA at a time when there is greater scope to address them. Better

engagement applies throughout the entire EIA and recognises the need to focus on the outcomes to be

achieved through engagement, including reporting back to the community and other stakeholders on

how their input has been considered

• Cumulative assessment: impacts within a project, and between projects, may combine to create

cumulative impacts. EIA should identify and assess potential cumulative impacts which result from the

project and report these in the EIS, including recommendations to manage and mitigate cumulative

impacts in the post-approval phase

• Clarity and consistency in conditions and compliance: a standard approach to setting consent

conditions will improve the clarity and consistency of conditions for decision-makers, proponents and



the community and other stakeholders. Conditions should focus on the most important environmental

matters, be specific and limit the need for further work where a matter has been appropriately assessed

in the EIS

• Build confidence and trust in EIA: raising the overall quality and consistency of EIA and the professional

standards of those preparing and assessing EIA documents will build confidence and trust among the

community and other stakeholders.

These overarching principles are reflected in the detail of the draft EIA Guidelines.

All guidelines except the Community and Stakeholder Engagement Guideline and Community Guide to EIA will

be given legal effect through an amendment to the Regulation. This approach will provide a statutory

foundation for the proposed changes whilst also giving the Department the flexibility to update its expectations

in relation to EIA practice as needed.

The draft EIA Guidelines on public exhibition are:

• Overview of the EIA Improvement Project

• Community Guide to EIA

• Scoping an Environmental Impact Statement

• Preparing an Environmental Impact Statement

• Responding to Submissions

• Community and Stakeholder Engagement

• Approach to Setting Conditions

• Modifying an Approved Project

• Peer Review.

The draft EIA Guidelines will be supported by an overarching Policy Statement, fact sheets for the community

and tools and templates for proponents and assessment officers (refer to Figure 1).



Figure Figure Figure Figure 1111: EIA Guidelines: EIA Guidelines: EIA Guidelines: EIA Guidelines

The Department is also developing a number of related improvements that will be part of a second stage of the

EIA Improvement Project, addressing the following areas:

• the approach to undertaking cumulative impact assessment

• options in relation to a code of professional practice for those undertaking EIA



• clarifying the grounds upon which the Department can request further information and reject an

application.

These are summarised in section 3.10.



2.2.2.2. EIA for State significant projectsEIA for State significant projectsEIA for State significant projectsEIA for State significant projects

State significant projects are projects deemed to have State significance due to their size, economic value or

potential impacts. Projects are categorised as either State significant development (SSD) or State significant

infrastructure (SSI).

Development that is SSD is identified in the State Environmental Planning Policy (State and Regional

Development) 2011 (State and Regional Development SEPP). Examples of development types which are SSD

include:

• new educational establishments, hospitals and correctional centres

• chemical and other manufacturing facilities

• mining and extraction operations

• tourist and recreation facilities

• some port facilities

• waste management facilities

• energy generating facilities.

Infrastructure that is SSI is also identified in the State and Regional Development SEPP. SSI includes major

transport and services projects that have a wider significance and impact than on just the local area. Examples of

infrastructure types which are SSI include:

• rail infrastructure

• road infrastructure

• water storage and treatment plants

• wharf and boating facilities

• pipelines

• certain development in National Parks.

All SSD and SSI projects require the preparation of an EIS in accordance with the SEARs. While there are

differences between some of the detailed aspects of the SSD and SSI process, they both follow the EIA phases

shown in Figure 2.

The EIA Improvement Project proposes changes to how EIA is undertaken for State significant projects, working

within the existing EIA phases and legislative framework. These changes are summarised in the following

sections.



3.3.3.3. Summary of Summary of Summary of Summary of proposed proposed proposed proposed changeschangeschangeschanges

3.13.13.13.1 IntroductionIntroductionIntroductionIntroduction

Figure 2 shows the phases of EIA for State significant projects in NSW, from scoping through to post-approval

and modifications.

Figure Figure Figure Figure 2222: : : : The phases of The phases of The phases of The phases of EIAEIAEIAEIA

The following sections provide a summary of the main changes to EIA which are described in detail in the draft

EIA Guidelines. The changes respond to a number of issues or areas for improvement identified at the start of the

EIA Improvement Project and summarised in a Discussion Paper published in October 2016. These are:

• lack of focus on the most important issues

• need for earlier and better engagement

• complex process with long and uncertain timeframes

• inconsistent quality and accessibility of documentation

• better consideration of cumulative impacts

• lack of clarity on the approved project and verifying compliance during construction and operation

• lack of certainty and understanding of project change that occurs following approval

• lack of confidence in the project assessment process

The following sections summarise the proposed changes to EIA and how they relate to one or more of the

identified issues. A detailed description of the changes can be found in the draft EIA Guidelines.



3.23.23.23.2 Community Community Community Community GGGGuide to EIAuide to EIAuide to EIAuide to EIA

The Community Guide to EIA responds to the need for earlier and better engagement and provides a clear

explanation of a complex process with long and uncertain timeframes. It applies to all phases of EIA.

It is intended to be a key source of information for the community and other stakeholders on opportunities to

participate in EIA. It describes the EIA phases, including changes introduced as a result of the EIA Improvement

Project. It identifies the opportunities for the community and other stakeholders to participate at each phase of

EIA with an emphasis on:

• the information they can expect to have access to at each phase

• the opportunity to provide feedback to the Department and / or the proponent

• how that feedback is used in making decisions.

The Community Guide is supported by a number of existing and future fact sheets explaining specific aspects of

EIA including the role of the Planning Assessment Commission (the Commission) and Appeal Rights.

Further detail can be found in the Community Guide to EIA.

3.33.33.33.3 Scoping aScoping aScoping aScoping annnn Environmental Impact StatementEnvironmental Impact StatementEnvironmental Impact StatementEnvironmental Impact Statement

EISs are detailed and complex documents, covering a wide range of matters and with multiple stakeholders. It is

important that the scope, or terms of the reference for the EIS, is established before work commences on its

preparation.

Scoping is the process of identifying the relevant matters or issues that should be considered in the EIS and the

level of detail to which they should be assessed. International and Australian EIA literature recognises the critical

importance of having a robust scoping process to enable the early identification of issues.

Scoping identifies the interactions between the project that are likely to cause an impact and the environmental,

social and economic matters that may be impacted. It relies on the professional expertise and judgement of the

proponent’s team supported by feedback from the community and other stakeholders. It defines and sets the

parameters for future detailed studies by technical experts.

The proponent’s Scoping Report is submitted in support of an application for SEARs. The SEARs are prepared by

the Department with input from relevant public authorities and establish the requirements which must be

addressed in the EIS.

The proposed changes during scoping respond directly to the following issues:

• a lack of focus on the most important issues

• the need for earlier and better engagement.



The proposed changes are summarised in Table 1 and described in detail in the Scoping an Environmental

Impact Statement Guideline.

Table Table Table Table 1111: Scoping : Scoping : Scoping : Scoping aaaannnn EISEISEISEIS ------------ Proposed ChangesProposed ChangesProposed ChangesProposed Changes

• A consistent approach for scoping an EIS has been developed to be used by proponents in preparing

their Scoping Report and the Department and relevant public authorities in establishing SEARs. This will

allow the SEARs to respond to the Scoping Report in a consistent and transparent manner and focus the

EIS on the most important matters. The approach includes a Scoping Meeting between the Department

and proponent at the start of the scoping phase to discuss the Department’s expectations of the

information to be provided in the Scoping Report and the approach to community and stakeholder

engagement.

• The scoping approach will identify the relevant matters to be assessed in the EIS and the appropriate level

of assessment, tailoring the level of assessment to the level of importance of the matter and allowing the

EIS to focus on the most important matters.

• The scoping approach requires proponents to engage with the community and other stakeholders during

the scoping phase to obtain their perspective on the matters to be included in the EIS, and to report this in

the Scoping Report. Early identification of community and other stakeholder concerns will allow these

concerns to be assessed during the preparation of the EIS.

• For some projects (including critical SSI projects, coal seam gas, applications for new mines and

extensions to existing mines), the Department will exhibit the Scoping Report and invite public feedback

on the relevant matters to be considered in the EIS, which will be taken into account by the Department in

finalising SEARs.

• The proponent’s Scoping Report will provide an overview of the proposed engagement strategy for the

EIS phase with a requirement to make additional detail available throughout the preparation of the EIS.

This will include the approach to dealing with areas of potential concern identified by the community and

other stakeholders during the scoping phase.

3.43.43.43.4 PreparinPreparinPreparinPreparing an g an g an g an Environmental Impact StatementEnvironmental Impact StatementEnvironmental Impact StatementEnvironmental Impact Statement

An EIS evaluates the acceptability of a project by assessing the impacts on environmental, social and economic

matters, in accordance with the SEARs. An EIS includes a description of the project for which approval is sought,



an assessment of the impacts and mitigation measures, details of engagement with the community and other

stakeholders and concluding remarks on the overall merits of the project. An EIS is supported by specialist

studies which are summarised in EIS Volume One.

The EIS, along with the Submissions Report, is the main document relied upon by assessment officers and

decision-makers. At the same time, it is a key source of information for the community and other stakeholders to

understand how the project may impact on them or their areas of interest.

The proposed changes during the preparation of the EIS phase respond to a number of issues including:



• lack of certainty and understanding of project change that occurs following approval.

The proposed changes to the EIS phase are summarised in Table 2 and are described in detail in the Preparing

an Environmental Impact Statement Guideline.

Table Table Table Table 2222: : : : Preparing anPreparing anPreparing anPreparing an EISEISEISEIS ------------ Proposed ChangesProposed ChangesProposed ChangesProposed Changes

• The draft Preparing an Environmental Impact Statement Guideline describes the Department’s

expectations of the information to be provided in an EIS to inform decision-making and promote

community and other stakeholder understanding, leading to better quality and more consistent EIS

documents.

• All elements of the project for which approval is sought will be described in one location in the EIS (the

project description chapter). The approach to setting conditions will change from: ‘the project as

generally described in the EIS’ to ‘the project as described in the project description chapter’,

emphasising the importance of describing all elements of the project in this location. Assessment and

compliance officers and the community and other stakeholders will find it easier to understand the project

as a result of this change.

• The project description chapter will be updated in response to any changes to the project resulting from

the response to submissions and any modifications to the approved project, so that there is always an up

to date project description over the life of the project.

• While proponents must provide a detailed project description in the EIS with the aim of minimising any

uncertainty, the EIS project description chapter may propose maximum parameters or extents for limited

elements of the project which require further design following completion of the EIS. This will allow the

assessment to proceed on the basis of maximum parameters or extents from which a maximum impact can

be identified. If acceptable, conditions of consent would allow further project design to progress within

these maximum parameters or extents.

• The length of impact assessment summaries in EIS Volume One will be reduced by focussing on impact

assessment and mitigation, rather than methodology and background, which are provided in subsequent

volumes.



• The EIS will be required to provide an evaluation and conclusion section which discusses the merits of the

project as a whole, rather than focus on individual matters. The section will describe how impacts have

been avoided and mitigated over the duration of project development and design, how the concerns of

the community and other stakeholders informed the project, and how the project addresses public

interest considerations.

3.53.53.53.5 Responding to SubmissionsResponding to SubmissionsResponding to SubmissionsResponding to Submissions

Following exhibition of the EIS, the public is invited to make submissions to the Department, which are

forwarded to the proponent. The purpose of the responding to submissions phase is to give proponents the

opportunity to respond to issues raised and / or change the project or mitigation measures in response to the

issues raised by the community and other stakeholders during the public exhibition of an EIS.

The proposed changes during the responding to submissions phase respond to a number of issues including:

• need for earlier and better engagement (particularly better engagement)




The proposed changes to the responding to submissions phase are summarised in Table 3 and described in

detail in the Responding to Submissions Guideline.

Table Table Table Table 3333: Responding to Submissions : Responding to Submissions : Responding to Submissions : Responding to Submissions ------------ Proposed ChangesProposed ChangesProposed ChangesProposed Changes

• The draft Responding to Submissions Guideline describes the Department’s expectations of the

information to be provided in a Submissions Report to inform decision-making and promote community

and stakeholder understanding, leading to better quality and more consistent EIA documents.

• The draft guideline requires proponents to analyse submissions to identify issues of concern to the wider

community and other stakeholders as well as individual submitters. This allows the response to

submissions to address all issues while providing greater detail and explanation for those issues of wider

community and stakeholder concern.

• The draft guideline requires the response to submissions to be structured around themes rather than

individual submitters. This respects the privacy of individual submitters while avoiding repetition where



similar issues have been raised by multiple submitters. The response to submissions will be required to be

prepared in sufficient detail to allow a submitter to clearly identify where and how their individual

submission has been addressed.

• A description of how the project and / or mitigation measures have changed in response to the issues

raised in submissions will be provided in the Submissions Report and an updated project description

incorporating these changes will be provided. This provides greater clarity on the project for which

approval is sought and the extent to which changes which take place following approval are consistent

with the approved project.

• The Submissions Report will describe additional environmental assessment and engagement undertaken,

if any, to understand impacts arising from changes to the project.

3.63.63.63.6 Community and Stakeholder ECommunity and Stakeholder ECommunity and Stakeholder ECommunity and Stakeholder Engagementngagementngagementngagement

Engagement with the community and other stakeholders applies to all EIA phases.

The approach to engaging with the community and other stakeholders by proponents of State significant

projects is driven by a combination of statutory requirements and the approach of individual proponents. The Act

requires the exhibition of an EIS and an opportunity for the public to provide submissions to the Department to

be addressed by the proponent through a Submissions Report. SEARs issued by the Department also require

proponents to engage with the community and other stakeholders during preparation of the EIS and to report

these activities in the EIS.

For some projects, conditions of consent may require certain documents to be made publicly available or the

establishment of Community Consultative Committees to formalise engagement between the proponent and

the community and other stakeholders during the post-approval phase.

Some proponents currently incorporate engagement in to their project development practices, often engaging

early in the process as an input to consideration of alternatives and scoping the EIS. This tends to be limited to

the largest projects within the State significant framework.

The proposed changes to the approach to engagement respond to the following issues:


• need for earlier and better engagement


The proposed changes to the approach to engagement emphasise the need for engagement to occur earlier in

EIA, particularly during the scoping phase, and for better engagement throughout EIA. Better engagement is

characterised as engagement that is clear about the outcomes to be achieved, tailoring engagement activities to

those outcomes and providing feedback on how the results of engagement have been taken into account.

The proposed changes to Stakeholder Engagement are summarised in Table 4 and described in detail in the

Community and Stakeholder Engagement Guideline.... Community and stakeholder engagement is not a discrete

phase in EIA, it applies to all phases from scoping through to post-approval.



Table Table Table Table 4444: Community and Stakeholder Engagement : Community and Stakeholder Engagement : Community and Stakeholder Engagement : Community and Stakeholder Engagement ------------ Proposed ChangesProposed ChangesProposed ChangesProposed Changes

• Proponents will engage with the community and other stakeholders during the scoping phase to gain

their perspective on the relevant matters to be considered in the EIS and identify areas of potential

concern as early as possible. It is acknowledged that some proponents currently adopt a similar approach

as part of their existing project development practices.

• During the 28 day period for setting SEARs, the Department will, for some projects (including critical SSI,

coal seam gas, applications for new mines or extensions to existing mines), exhibit the Scoping Report

and invite feedback from the public on the relevant matters to be considered in the EIS, which will be

taken into account by the Department in finalising SEARs.

• The proponent’s Scoping Report will describe the proposed approach to engagement during the EIS

phase including how areas of potential concern identified during scoping will be addressed through

engagement. The emphasis is on defining the engagement outcomes to be achieved with engagement

activities and methods designed to meet the outcomes. This is particularly important given the range of

project types and scale within the State significant framework and recognition that a ‘one-size-fits-all’

approach to engagement is not appropriate.

• The focus of the engagement chapter in the EIS will be on evaluating how the engagement outcomes

identified through scoping and SEARs have been met, and how feedback has informed the project and

EIS.

• The draft guideline confirms that the Department is committed to meeting with the community and other

stakeholders during the EIS exhibition phase for some projects, particularly where there is a high level of

community and stakeholder interest. This will assist the Department in understanding the concerns of the

community and other stakeholders when undertaking their assessment. The purpose of the Department’s

engagement during the EIS exhibition phase is to explain the assessment process to the community and

other stakeholders.

• The draft guideline confirms a commitment to make post-approval documents publicly accessible on a

consistent basis. This will be achieved through a standard condition of consent requiring proponents to

make all documents required as a result of a condition of consent to be made publicly available on the

proponent’s website or the Department’s major projects website.



3.73.73.73.7 Approach to Approach to Approach to Approach to Setting CSetting CSetting CSetting Conditionsonditionsonditionsonditions

Following receipt of the Submissions Report, the Department undertakes its assessment of the project, including

identifying any recommended conditions of consent.

Conditions of consent play an important role in translating the impacts and mitigation measures identified in the

EIS or Submissions Report into legally enforceable conditions which can be tracked and monitored post-

approval.

The proposed changes to the approach to setting conditions respond to the following issues:






The proposed changes to the approach to setting conditions during the assessment and determination phase

are summarised in Table 5 and described in detail in the Approach to Setting Conditions Guideline.

Table Table Table Table 5555: Approach to Setting Conditions : Approach to Setting Conditions : Approach to Setting Conditions : Approach to Setting Conditions ------------ Proposed ChangesProposed ChangesProposed ChangesProposed Changes

• The draft guideline establishes a framework for setting conditions which will provide clarity to proponents

and the community and other stakeholders about how conditions of consent are developed and their role

in managing impacts. It identifies three condition categories:

- performance-based conditions, which describe the performance or outcome to be achieved rather

than the means of achieving it

- prescriptive conditions, which describe a specific action to be taken to manage an impact or specify

things that must not be done

- management-based conditions, in the form of management plans, to determine detailed

management measures for impacts.

• The framework recognises the role of all three condition types in managing environmental impacts but

states a preference for performance-based conditions where possible. It provides an explanation of when

each condition type should be used. A preference for performance based conditions simplifies the

approach to setting conditions and places less reliance on detailed management plans.



• The approach to setting conditions sets out a number of principles to inform conditions, including that

they should focus on the most important environmental impacts and not place onerous requirements on

minor impacts.

• The draft guideline provides guidance on how to present impact assessment and mitigation measures in

the EIS to align with one or more of the condition categories, reducing the potential for inconsistency

between mitigation measures and conditions of consent, and providing greater confidence to

proponents and communities over how impacts are regulated.

• The approach to setting conditions creates a clearer link between impacts identified in the EIS and

Submissions Report and their management in post-approval, including requirements for monitoring,

compliance and enforcement. This will provide greater confidence to the community and other

stakeholders about the management of environmental impacts in the post-approval phase, supported by

requirements to make post-approval documents publicly available on a more consistent basis.

3.83.83.83.8 Modifying an Approved ProjectModifying an Approved ProjectModifying an Approved ProjectModifying an Approved Project

Further development of a project’s design continues following development consent. Given the scale and

complexity of State significant projects, further design development raises questions for proponents and the

Department about whether these further design developments are permissible within the consent, require a

modification to the consent, or require a new Development Application.

Compared to other parts of EIA, there is little published guidance in relation to modifications, in particular the

question of when project change constitutes a modification. The NSW Land and Environment Court has made

several judgements on the question of project change which provide precedence on the relevant factors which

inform whether a project change constitutes a modification.

The Modifying an Approved Project Guideline provides clarification on how a modification is assessed and

addresses the following issues:





• lack of confidence in the project assessment process.



The proposed changes to the approach to modifications are summarised in Table 6 and described in detail in the

Modifying an Approved Project Guideline.

Table Table Table Table 6666: Modifying an Approved Project: Modifying an Approved Project: Modifying an Approved Project: Modifying an Approved Project ------------ Proposed ChangesProposed ChangesProposed ChangesProposed Changes

• The draft Modifying an Approved Project Guideline describes the Department’s expectations of the

information to be provided in a Modification Application to inform decision-making and promote

community and stakeholder understanding, leading to better quality and more consistent Modification

Applications.

• The draft guideline provides a detailed description of how a modification is assessed and different

categories of modifications. This provides greater clarity and understanding to proponents and the

community and other stakeholders regarding the modification process and the factors to be considered in

determining a modification.

• The draft guideline provides an overview of the main legal principles handed down by the Courts which

inform the question of when project change can be characterised as a modification. This includes the

different considerations for SSI and SSD and provides a useful resource for proponents when considering

whether the proposed project changes can be characterised as a modification.

• The draft guideline builds on the draft Preparing an Environmental Impact Statement Guideline and the

draft Approach to Setting Conditions Guideline by describing how elements of the project that require

further design at the time of the EIS should be presented in the EIS project description and responded to

through the conditions of consent. This will assist in clarifying when project change can be characterised

as a modification by identifying those aspects of the project description for which more design work is

required following the EIS, and the parameters within which this work can take place.

• The draft guideline requires an updated project description to be provided with each Modification

Application so that a current and consolidated project description exists and is available over the life of the

project.

3.93.93.93.9 Peer RPeer RPeer RPeer Revieweviewevieweview

The draft Peer Review Guideline describes the role of peer review in the EIA of State significant projects and how

it can be best used to contribute to confidence and integrity in decision-making.

Peer review is an independent process undertaken by a consultant engaged by the proponent, the Department,

the Commission or another government agency. In a peer review, the content and findings of an environmental

assessment of a particular matter or impact are independently reviewed by the consultant usually before the

proponent submits the assessment as part of its application. However, the Department, the Commission or other

government agencies, may also engage a consultant to undertake a peer review as part of their assessment of an

application, or as part of the post-approval phase.

The draft guideline describes when peer review should be used, the criteria for consultants undertaking peer

review and the terms of reference for the review.



The draft Peer Review Guideline responds to a number of issues including:


• lack of confidence in the project assessment process.

Further detail can be found in the Peer Review Guideline.

3.103.103.103.10 AdditionalAdditionalAdditionalAdditional improvementimprovementimprovementimprovementssss

The EIA Improvement Project identified additional improvements which will be detailed in a subsequent stage of

the project and which support the overall objectives of the project. These include:

• guide to professional practice for those undertaking EIA

• approach to cumulative impact assessment

• regulatory amendments including clarifying the grounds upon which the Department can request more

information and reject an application.

3.10.13.10.13.10.13.10.1 Professional practice requirements for EIA consultantsProfessional practice requirements for EIA consultantsProfessional practice requirements for EIA consultantsProfessional practice requirements for EIA consultants

Code of Practice

The Department recognises that the way in which consultants carry out their roles contributes to public

confidence in the integrity of EIA. Consultants should practice competently, demonstrate integrity and promote

best practice. Members of professional organisations agree to be bound by a code of ethics and professional

conduct, which ensures they are accountable for the professional standards they exhibit and the work they

undertake. The Department is exploring the option of requiring signatories to EIA documents (typically the

author and reviewer of the document), including specialist studies, to be members of a relevant professional

organisation and to sign a declaration in the documents confirming their compliance with the Code of Practice of

that organisation. The Code will cover the standards of practice expected of consultants when carrying out their

roles in EIA and link compliance with the Code to the governance and disciplinary mechanisms within each

relevant professional organisation.

The Department has consulted national professional organisations prominent in the EIA space to determine

competencies and outcomes that are already, or can be, reflected in existing codes. The Department will

continue to consult with these organisations to develop an approach that leads to genuine improvements to EIA

for State significant projects and contributes to confidence in the assessment process.

Subject to the outcomes of this consultation, the Department will separately exhibit a draft guideline to invite

public feedback.

3.10.23.10.23.10.23.10.2 Cumulative impact assessmentCumulative impact assessmentCumulative impact assessmentCumulative impact assessment

Better consideration of cumulative impacts is an issue raised consistently by the community and other

stakeholders as a key area for improvement in EIA for State significant projects. Cumulative impacts are a

complex concept involving a number of related factors such as:

• the relationship between strategic and project planning

• the quality of baseline data characterising the existing environment



• the extent to which existing assessment methodologies address incremental changes to the existing

environment

• the methodologies for predicting future changes to the environment from the interaction of multiple

projects.

As part of the second phase of the EIA Improvement Project, the Department will publish a bulletin explaining

how the current approach to strategic and project planning and individual assessment methodologies, for

example, air quality and noise, address cumulative impacts. It will also identify gaps in current cumulative impact

assessment practice and set out a prioritised approach to addressing these gaps through subsequent phases of

work.

3.10.33.10.33.10.33.10.3 Review of Review of Review of Review of EIA documents by the DepartmentEIA documents by the DepartmentEIA documents by the DepartmentEIA documents by the Department

The Regulation contains provisions relating to the suitability of the EIS for exhibition. These include provisions for

the rejection of Development Applications (clause 51) and requests for additional information (clause 54).

The grounds for rejection of an application are relatively narrow and include:

• the application is illegible or unclear as to the development consent sought

• the application does not contain any information, or is not accompanied by any document, specified in

Part 1 of Schedule 1 (form of an application)

• in the case of SSD, the application is not accompanied by an EIS.

A request for additional information from the proponent can be made by the Department at any phase in EIA,

however, a proponent can choose to not provide the information.

The Department is reviewing the current provisions in the Regulation to assess opportunities to clarify and

strengthen the grounds for rejection of Development Applications and requests for additional information.



4.4.4.4. Implementation of Implementation of Implementation of Implementation of changeschangeschangeschanges

The Department intends to give effect to the changes proposed by the EIA Improvement Project through

amendments to the Regulation.

The scope of the proposed amendments being considered is summarised in the following sections.

Form and content of EIA documents

Amendment of Schedule 2 of the Regulation to require the form and content of EIA documents ---- Scoping

Report, EIS, Submissions Report and Modification Environmental Assessment Report ---- to be in accordance with

the guidelines, rather than the current form and content provisions of Schedule 2.

SEARs

Amendments to Schedule 2 may require an application for SEARs to be accompanied by a Scoping Report, with

the form and content of that report to be in accordance with the Scoping an Environmental Impact Statement

Guideline. The amendments will enable the Department to place the Scoping Report for some projects on

exhibition for 14 days and to invite public comment, and for that comment to be taken into account when

finalising SEARs. The existing provisions for consultation with relevant public authorities in relation to SEARs will

not change.

False and misleading

The existing provisions for a false and misleading declaration will be retained (Schedule 2, Cl 6 (f) (iii)) but may

expand in scope so that it is applied to all EIA documents rather than just the EIS.

Professional practice

The signatories to EIA documents must be a member of a relevant professional organisation and adhere to the

Code of Practice of that organisation when preparing the document. A declaration to this effect may be required

in each EIA document.

Signatories are defined as the lead author of the document and any person who undertakes a review, or

authorises the release of the document.

Clarifying the grounds for requests for additional information and rejection of applications and EISs

The grounds for requests for additional information and rejection of applications for consent and modifications of

consent will include consideration of the extent to which the information requested through the EIA Guidelines

has been provided. This may include the extent to which applications include:

• a clear project description, including any elements of the project which require further design following

completion of the EIS and for which a maximum parameter approach has been adopted

• identification of approvals required

• an analysis of how engagement outcomes have been achieved and informed the project and EIS

• how the EIS addresses the requirements of the SEARs

• confirmation of landowners’ consent.



5.5.5.5. Relationship to other Relationship to other Relationship to other Relationship to other Department initiativesDepartment initiativesDepartment initiativesDepartment initiatives

5.15.15.15.1 IntroductionIntroductionIntroductionIntroduction

The Department is developing other initiatives which are relevant to the EIA Improvement Project:

• legislative updates

• a draft Social Impact Assessment Guideline.

5.25.25.25.2 Legislative updatesLegislative updatesLegislative updatesLegislative updates

In 2016, the Department commenced extensive consultation with planning stakeholders to identify

improvements to the Act. As a result of this consultation, a number of amendment proposals have been

developed, including:

• enhancing community participation: establishing a new part of the Act that consolidates community

consultation provisions, and requires decision-makers to give reasons for their decisions

• completing the strategic planning framework: through local strategic planning statements, up to date

Local Environment Plans and more consistent and workable Development Control Plans

• development pathways: improvements to the various development pathways and preventing the

misuse of modifications

• SSD: through better EIA and more effective conditions of consent

• clearer building provisions: simplified and consolidated building provisions, allowing conditions on

construction certificates and ensuring consistency with development approvals

• elevating the role of design: through a new design object in the Act, and a Design-Led Planning

Strategy

• improving enforcement: with the introduction of enforceable undertakings in compliance actions.

The draft amendments to the Act were placed on public exhibition from January to March 2017 and are in the

process of being updated in response to submissions received.

While the EIA Improvement Project does not propose or rely on any changes to the Act, a number of the

amendments complement changes proposed by the project. These include the enhanced provisions for

community participation, clarification on the use of modifications and strengthening compliance and

enforcement powers.



5.35.35.35.3 Draft Social Impact Assessment GuidelineDraft Social Impact Assessment GuidelineDraft Social Impact Assessment GuidelineDraft Social Impact Assessment Guideline

The Department is exploring ways to strengthen the quality and consistency of social impact assessments (SIA) of

State significant projects.

The Act requires the social impacts of a State significant project to be assessed and considered as part of the

development assessment process. However, unlike for economic and environmental impacts, the Government

does not currently provide guidance on how this should be done. This guidance gap was identified by

stakeholders as a particular issue for State significant mining, petroleum production and extractive industry

development (State significant resource projects).

In response, the Department is developing a Social Impact Assessment Guideline for State significant resource

projects. A draft guideline was released for consultation from December 2016 to March 2017. The guideline is

being updated in response to the submissions received.

As SIA is part of EIA, the SIA and EIA Improvement Project teams have worked closely to integrate and align the

proposed changes across both projects, and will continue to do so as the projects are finalised.



6.6.6.6. Have your sayHave your sayHave your sayHave your say

The draft EIA Guidelines are now available for comment.

We encourage the community and other stakeholders to:

• read the relevant guideline/s

• attend an information session

• make a submission through the Department’s website or by mail to:

EIA Improvement Project Guidance Series

NSW Department of Planning and Environment

GPO Box 39

Sydney NSW 2001

Further information is available through the Department’s website or by calling Service NSW or emailing

[email protected]@[email protected]@planning.nsw.gov.au....



7.7.7.7. GlossaryGlossaryGlossaryGlossary

(The) Commission The Planning Assessment Commission.

Community A group of people living in a specific geographical area or with mutual

interests that could be affected by a State significant project.

Community and other

stakeholders

All those with a stake in a project including community members that may

be impacted by, or interested in the project.

Community Consultative

Committee

A technique for the proponent to meet the engagement outcomes and

maintain regular two-way communication with stakeholders through the

life of a project, including reporting on project progress and impacts and

obtaining stakeholder perspectives on these impacts.

Conditions of consent The conditions that the Department or decision-maker sets when a project

is approved. The conditions control the way in which development is

constructed or operates. The proponent must adhere to these conditions.

Consent Includes the granting of consent for SSD projects, the approval of SSI

projects and approvals of modifications to those consents and approvals.

Critical SSI A State significant infrastructure project declared by the Minister to be

essential for the State for economic, environmental or social reasons.

Department NSW Department of Planning and Environment.

Engagement The act of seeking the participation of the community and other

stakeholders on behalf of the project proponent or regulatory agencies.

Environmental Impact

Assessment (EIA)

Environmental Impact Assessment (EIA) is the process of identifying,

predicting, evaluating and mitigating the environmental, social, economic

and other relevant effects of development proposals. It includes scoping

of the project, consultation with the community and other stakeholders,

preparation and exhibition of the EIS, assessment and determination of

the project.

EIA documentation Includes the Scoping Report, EIS, Submissions Report and any other

documentation provided by the proponent up to the point of

determination.

Environmental Impact

Statement (EIS)

The primary document prepared by the proponent which includes

assessment of all relevant matters and impacts associated with a State

significant project.

EP&A Act Environmental Planning and Assessment Act 1979 (NSW).



Key issue A matter that requires detailed assessment, such as a technical study, to

better understand the potential impacts that are likely to arise and identify

project specific mitigation.

Matter An element of the natural or human environments that may be affected by

activities associated with State significant projects.

Minister NSW Minister for Planning.

Mitigation Action taken to reduce the impact that a project may have on a matter.

Modification An approved change to a project that is implemented by modifying an

existing development consent. An application must be made under the

EP&A Act before the modification can be approved.

Other issue A matter whose impacts can usually be managed by well understood and

routinely used mitigation measures. Usually, further information will be

required, but often without the need for a technical study.

Participation The activity whereby the community and other stakeholders have a say

and potentially influence decisions that impact on their lives.

Project Includes applications for State significant development or State significant

infrastructure under the EP&A Act.

Project approval Includes:

• development consent for State significant development

• infrastructure approval for State significant infrastructure.

Proponent The person or entity seeking approval for a State significant project, or

acting on an approval for a State significant project, including any

associated entities that have been engaged to assist with project delivery.

Public The activities which are open to the entire public rather than targeted at

particular stakeholders, for example, public exhibition of the EIS.

Scoping Scoping identifies the matters and impacts that are likely to be relevant

and establishes terms of reference for the Environmental Impact Statement

(EIS).

Scoping Meeting A meeting held between the proponent and the Department to discuss

the project concept and agree on the approach to engaging with the

community and other stakeholders prior to finalising the Scoping Report,

taking into account potential project impact and likely community and

stakeholder interest.

Scoping Report A publicly available document which provides preliminary information on

a project and its potential impacts to support a request for Secretary’s

Environmental Assessment Requirements (SEARs).

SEARs The SEARs (Secretary’s Environmental Assessment Requirements) set out

clear expectations on the level of assessment required for each relevant

matter which must be addressed by the proponent in the EIS.



Secretary The Secretary of the NSW Department of Planning and Environment.

Stakeholder Any person or group with an interest in, or the potential to be affected by,

a State significant project.

State significant development

(SSD)

Development projects which have State significance due to their size,

economic value or potential impacts assessed and approved under part

4.1 of the EP&A Act.

State significant infrastructure

(SSI)

Infrastructure projects which have State significance due to their size,

economic value or potential impacts assessed and approved under Part

5.1 of the EP&A Act.

State significant projects A State significant development or State significant infrastructure project

as defined under the EP&A Act.


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