2.2 Environmental planning instruments
2.2.1 State environmental planning policies
In general, section 115ZF(2) of the EP&A Act excludes the application of environmental planning instruments to SSI projects (except as those instruments apply to the declaration of SSI or critical SSI – see section 2.1). Notwithstanding this, the provisions of the following SEPPs and deemed SEPPs have been considered to be consistent with good environmental assessment practice.
State Environmental Planning Policy (Infrastructure) 2007
The Infrastructure SEPP aims to facilitate the effective delivery of infrastructure across the state. Clause 94 of the Infrastructure SEPP applies to development for the purpose of a ‘road’ or ‘road infrastructure facilities.’ It provides that these types of works are development which is permissible without consent, if undertaken by or on behalf of a public authority. The project is appropriately classified as being for the purpose of a ‘road’ and a ‘road infrastructure facility’ under the Infrastructure SEPP. However, as discussed in section 2.1, approval is required for the project under Part 5.1 of the EP&A Act.
State Environmental Planning Policy No. 19 – Bushland in Urban Areas
State Environmental Planning Policy No. 19 – Bushland in Urban Areas (SEPP 19) aims to protect and preserve bushland within urban areas including within the former Ashfield, Leichhardt and Marrickville local government areas (LGAs) (now amalgamated as the Inner West LGA) and the City of Sydney LGA. For the purposes of SEPP 19, bushland is defined as ‘land on which there is vegetation which is either a remainder of the natural vegetation of the land or, if altered, is still representative of the structure and floristics of the natural vegetation’.Clause 7 of SEPP 19 states that works undertaken by public authorities (such as Roads and Maritime) shall not disturb bushland zoned or reserved for public open space for specific purposes, which include the purpose of constructing or maintaining roads, without first considering the aims of SEPP 19.
As outlined in Chapter 18 (Biodiversity), the project would involve clearance of vegetation at the locations of interchanges, surface infrastructure and areas within the project footprint, including ancillary construction facilities. Vegetation in the project footprint comprises ‘urban exotic’ and ‘native cover’ (NSW Office of Environment and Heritage 2013a) and no bushland as defined in Clause 4 of SEPP 19 is present.
State Environmental Planning Policy No. 33 – Hazardous and Offensive Development
State Environmental Planning Policy No. 33 – Hazardous and Offensive Development (SEPP 33) is not strictly applicable to infrastructure. However, the provisions of the policy have been considered in Chapter 25 (Hazard and risk) in relation to the storage of hazardous substances and dangerous goods during the construction and operation of the project.
State Environmental Planning Policy No. 55 – Remediation of Land
State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55) provides a State-wide approach to the remediation of contaminated land for the purpose of minimising the risk of harm to the health of humans and the environment. In accordance with Clause 7(1) of SEPP 55, a consent authority must not consent to the carrying out of development on any land unless:
- It has considered whether the land is contaminated
- If the land is contaminated, it is satisfied that the land is suitable in its contaminated state
(or would be suitable, after remediation) for the purpose for which the development is proposed to be carried out
- If the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land would be remediated before the land is used for that purpose.
A contamination investigation has been carried out for the project to inform the design and EIS. The outcomes of the contamination investigations and recommended environmental mitigation measures are addressed in Chapter 16 (Contamination).
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Sydney Harbour Catchment SREP), a deemed SEPP, provides planning principles and development controls for the Sydney Harbour Catchment. In Rozelle, at the Rozelle interchange and at the northern extent of the Iron Cove Link, the project footprint is located within a mapped foreshore and waterway area. The project, as described in the EIS, is not located at a strategic foreshore site and would not affect any mapped heritage or wetland areas under the Sydney Harbour Catchment SREP. As discussed in Chapter 15 (Soil and water quality) and Chapter 19 (Groundwater), the project is not considered to result in an adverse impact on the water quality of Sydney Harbour.
Sydney Regional Environmental Plan No. 26 – City West
Sydney Regional Environmental Plan No. 26 – City West (SREP 26) is a deemed SEPP under clause 120 of Schedule 6 of the EP&A Act that provides planning principles and development controls for land at City West covering the Ultimo-Pyrmont Precinct, The Bays Precinct and Eveleigh Precinct. Part of the project footprint is located within the boundary of The Bays Precinct as defined in SREP 26.
The principal aims of SREP 26 are to promote the orderly and economic use and development of City West by establishing planning principles and controls for the City West area. The provisions of SREP 26 would not apply to the project as it is SSI. Nevertheless, Roads and Maritime has considered the intent of the policy during the development of the project. The relevant SREP 26 objectives, planning principles and policies for The Bays Precinct are discussed in Table 2-2.
Table 2-2 Relevant SREP 26 matters
Clause 11 – Planning Principles of regional significance for City West
This clause requires that development within City West is consistent the following planning principles:
Division 3 – Planning principles for precincts
Clause 15 of Division 3 requires that development within The Bays Precinct is consistent with a number of planning principles. These are discussed below with the following planning principles:
Division 6 – Heritage Conservation (supported by Schedule 4)
This division provides for the protection of heritage items and conservation areas shown on Map 4 of the SREP. Clause 30 requires that the consent authority considers the significance of a heritage item or conservation area, the potential impacts on this area from the development and measures to conserve the heritage significance. It also requires that the consent authority considers any archaeological sites or potential.
An assessment of the potential impacts of the project on non-Aboriginal heritage values and how impacts would be managed, including measures to conserve significance, is provided in Chapter 20 (Non-Aboriginal heritage).
Division 9 – Miscellaneous provisions
Clause 50 of this division requires that development must not be carried out on any land until arrangements have been made for the supply of water, sewerage and drainage which are satisfactory to the Water Board.
A description of the water supply, wastewater and drainage design for the project, potential impacts on these factors and how impacts would be managed is provided in is provided in Chapter 5 (Project description) and Chapter 17 (Flooding and drainage). Potential impacts of the project on utilities, including relocation or adjustment of utilities are identified in the Utilities Management Strategy in Appendix F (Utilities Management Strategy).
2.2.2 Local environmental plans
Local environmental plans (LEPs) do not apply to SSI projects. The project is located within two LGAs, being the City of Sydney and the Inner West. The Inner West LGA was formed on 12 May 2016 upon the amalgamation of the former Ashfield, Leichhardt and Marrickville LGAs. Existing LEPs for the former Ashfield, Leichhardt and Marrickville LGAs remain in force until a combined LEP has been gazetted for the Inner West LGA.
City of Sydney and Inner West councils have been consulted during the development of the project and preparation of the EIS. Further details on consultation carried out for the EIS are provided in Chapter 7 (Consultation).
Notwithstanding the above, the provisions of the following LEPs are considered in Chapter 12 (Land use and property):
- Ashfield Local Environmental Plan 2013
- Leichhardt Local Environmental Plan 2013
- Marrickville Local Environmental Plan 2011
- Sydney Local Environmental Plan 2012.
2.3 Other NSW legislation
Approval of a project under Part 5.1 of the EP&A Act (EP&A Act s 115ZG) means that certain other approvals are not required. The potential impacts anticipated by those approvals have nevertheless been assessed as part of this EIS. Approvals not required for the project include:
- Permits under sections 201, 205 and 219 of the Fisheries Management Act 1994 (NSW) (FM Act) to carry out dredging and reclamation works, to harm marine vegetation in a protected area or to block fish passage (refer to Chapter 18 (Biodiversity))
- Approvals under Part 4 (to disturb or excavate a place, building, work, relic, moveable object, precinct or land to which an interim heritage order or listing on the State Heritage Register applies) and excavation permits under section 139 of the Heritage Act 1977 (NSW) (refer to Chapter 20 (Non-Aboriginal heritage))
- Aboriginal heritage impact permits under section 90 of the National Parks and Wildlife Act 1974 (NSW) (NPW Act) to harm an Aboriginal object or place (refer to Chapter 21 (Aboriginal heritage))
- Authorisations under the Native Vegetation Act 2003 (NSW) to clear native vegetation or State protected land (refer to Chapter 18 (Biodiversity))
- Various approvals under the Water Management Act 2000 (NSW), namely water use approvals under section 89, water management work approvals under section 90, and activity approvals (other than aquifer interference approvals) under section 91 (refer to Chapter 15 (Soil and water quality)).
Approvals under other NSW legislation that would be required for the project include the following:
- An Environment Protection Licence under Chapter 3 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). In accordance with clause 35 of Schedule 1 of the POEO Act an Environment Protection Licence would be required for construction of the project. In accordance with section 115ZH of the EP&A Act, such a licence cannot be refused for an approved project and is to be substantially consistent with any approval granted to the project under Part 5.1 of the EP&A Act.
Other NSW legislation that would apply to the project includes:
- The Land Acquisition (Just Terms Compensation) Act 1991 (NSW), which applies to the acquisition of any land by an Authority of the State which is authorised to acquire the land by compulsory process. Acquisition is further discussed in Chapter 5 (Project description) and Chapter 12 (Land use and property)
- The Contaminated Land Management Act 1997 (NSW), which outlines the circumstances in which notification of the NSW Environment Protection Authority is required in relation to contamination of land. This is discussed further in Chapter 16 (Contamination)
- The Roads Act 1993 (NSW) is relevant as the project would result in a road classified as a freeway or tollway under the Act as it contains four or more traffic lanes over a distance of more than one kilometre in the Sydney metropolitan area
- The FM Act is relevant as notification to the NSW Department of Primary Industries – Fisheries is required if dredging or reclamation work are required in water land classed as key fish habitat. This is discussed further in Chapter 18 (Biodiversity)
- The Crown Lands Act 1989 (NSW), which applies to the acquisition of land reserved under that Act. The project would impact Crown land at Rozelle (Refer to Chapter 12 (Land use and property)).
Because the project has been declared to be SSI, section 115ZG(2) of the EP&A Act precludes the following directions, orders or notices being made to prevent or interfere with the carrying out of the project once approved:
- An order restricting harm to buildings, works, relics or places that are not the subject of an interim heritage order or listing under the State Heritage Register under Division 8 of Part 6 of the Heritage Act 1977 (NSW).
Further, if the project is declared as critical SSI, section 115ZG(3) of the EP&A Act precludes the following directions, orders or notices being made to prevent or interfere with the carrying out of the project once approved:
- An interim protection order within the meaning of the NPW Act or the Threatened Species Conservation Act 1995 (NSW) (TSC Act)
- An order under Division 1 (Stop work orders) of Part 6A of the NPW Act, Division 1 (Stop work orders) of Part 7 of the TSC Act or Division 7 (Stop work orders) of Part 7A of the FM Act
- A remediation direction under Division 3 of Part 6A of the NPW Act
- An environmental protection notice under Chapter 4 of the POEO Act
- An order from a council to demolish or move a building, to repair or make structural alterations to a building, or to do or refrain from doing things under section 124 of the Local Government Act 1993 (NSW).
2.4 Commonwealth legislation
2.4.1 Environment Protection and Biodiversity Conservation Act 1999
Under the EPBC Act, proposed ‘actions’ that have the potential to significantly impact matters of national environmental significance or the environment of Commonwealth land, or ‘actions’ that are being carried out by a Commonwealth agency, must be referred to the Australian Government. If the Australian Government Minister for the Environment determines that a referred project is a ‘controlled action’, the approval of that Minister will be required for the project in accordance with the EPBC Act and in addition to the approval required from the NSW Minister for Planning under Part 5.1 of the EP&A Act.
As discussed in Chapter 18 (Biodiversity) and Chapter 20 (Non-Aboriginal heritage), the impact assessments carried out for the project indicate that the project would not be likely to result in a significant impact on any matter of national environmental significance under the EPBC Act, including threatened and migratory species, world heritage properties, national heritage places or Commonwealth land. Accordingly, the project has not been referred to the Australian Government Department of the Environment and Energy for further assessment or approval under the EPBC Act.
2.4.2 Airports Act 1996
Under section 183 of the Airports Act 1996 (Commonwealth) and the Airports (Protection of Airspace) Regulations 1996 (Commonwealth), a controlled activity must not be undertaken in relation to ‘prescribed airspace’ without the approval of the Secretary of the Australian Government Department of Infrastructure and Regional Development (DIRD). Controlled activities are defined in section 182 (1) of the Airports Act 1996 (Commonwealth) and include activities that result in turbulence, such as from exhaust plumes, that exceeds the level ascertained in the regulations. Regulation 6A provides that for subparagraph 182(1)(f)(i) of the Airports Act 1996 (Commonwealth), the level of air turbulence for turbulence caused by an emission from a vent is upward vertical velocity of 4.3 metres per second.
Under section 9 of the Civil Aviation Act 1988 (Commonwealth), the Civil Aviation Safety Authority (CASA) is responsible for the safety regulation of civil air operations in Australian territory. Consequently, CASA stipulates requirements for the construction and operation of new infrastructure that has the potential to influence aviation safety. Part 139.70 of the Civil Aviation Safety Regulations 1998 (Commonwealth) provides that CASA may determine that a plume is a hazardous object if the vertical velocity of the exhaust exceeds 4.3 metres per second.
‘Prescribed airspace’ is the airspace above any part of either an obstruction limitation surface (OLS) or procedures for air navigation systems operations (PANS-OPS) surface for Sydney Airport:
- The OLS is the maximum height that objects may project into the airspace around an aerodrome so that aircraft operations may be conducted safely
- PANS-OPS protection surfaces establish the airspace that is to remain free of any potential disturbance (including physical objects and other disturbances such as turbulence due to operation of ventilation outlets) so that aircraft operations may be conducted safely.
The PANS-OPS is generally higher than the OLS. Where structures may (under certain circumstances) be permitted to penetrate the OLS, they will not ordinarily be permitted to penetrate any PANS-OPS surface.
The project would include the construction and operation of ventilation facilities at:
- Haberfield, at the corner of Parramatta Road and Walker Avenue (this ventilation facility is being built as part of the M4 East project with fitout (mechanical and electrical) as part of the M4-M5 Link project)
- Rozelle, within the Rozelle Rail Yards
- Rozelle, in the Victoria Road carriageway between Callan Street and Springside Street at Rozelle
- St Peters, within the St Peters interchange near Campbell Road.
The exhaust plumes from all of the ventilation facilities have the potential to penetrate either or both the OLS or PANS-OPS levels. The project has been designed to satisfy requirements set by DIRD in relation to erected structures (such as ventilation outlets), equipment manoeuvring and lighting. To determine whether plume rise resulting from the operation of these ventilation facilities would be a controlled activity as defined in section 183 of the Airports Act 1996 (Commonwealth), a plume rise assessment would be carried out in accordance with the CASA Advisory Circular Plume Rise Assessments AC 139-5(1) November 2012 prior to the operation of the project.
Further discussion of potential impacts on prescribed airspace is provided in Chapter 25 (Hazard and risk).
2.5 Site management works at the Rozelle Rail Yards
Roads and Maritime is carrying out a suite of site management works on part of the Rozelle Rail Yards site. The works are needed to manage the existing environmental and safety issues at the site and would also improve access to surface conditions, which would allow for further investigation into the location of utilities and the presence of contamination and waste. The works would benefit future uses of the site (including construction of the M4-M5 Link project if it is approved) because the works would remove material and redundant facilities associated with rail and rail related infrastructure from the site.
The site management works were subject to a separate environmental assessment. The works were assessed in an REF which was approved by Roads and Maritime under Part 5 of the EP&A Act in April 2017.
The key features of the site management works are:
- Site establishment – including fencing, installing temporary site offices, arranging site access, erosion, sediment and drainage controls and defining lay down, stockpile and transfer areas
- Utility location and site investigations
- Removal of waste, existing stockpiles and vegetation
- Removal of existing above ground rail infrastructure, including gantries, railway lines, ballast, sleepers and buildings (but excluding the southern penstock, the switching station, the transformer and rail infrastructure to the east of Victoria Road bridge) and redundant services where intercepted when removing infrastructure (eg gantries and ballast) generally to a depth of 500 millimetres below ground level, except where drainage channels and sediment basins are required
- Site stabilisation comprising reshaping of the ground surface as a result of the site management works and installation of stormwater controls including the construction of drainage channels and sediment basins
- Site completion and handover – demobilise all temporary construction materials, plant and equipment installed for the works and leave the site secure.
Site management works commenced in mid-2017 and will be carried out over a period of around 12 months. After completion of the works, the ‘finished site’ would be managed and maintained to ensure that the surface cover and stormwater controls are operating effectively. For the purposes of this EIS, it has been assumed that the site management works are completed prior to construction of the project commencing.
2.6 Modifications to the project approval
Should the project be approved, the proponent can apply to the NSW Minister for Planning to modify an approval. Any modification requests would be lodged with DP&E for assessment. The modification request would be appropriately notified and/or exhibited depending on the scale of the proposed modification and the potential for environmental or social impacts.