Client Update

Background

The proposal to construct the CBD Metro will result (and has already resulted) in a number of changes to planning and infrastructure development laws which will have a significant impact upon development within the vicinity of the proposed metro corridor. This article sets out some of the changes to date.

On 16 February 2009, Sydney Metro lodged with the Department of Planning a Preliminary Environmental Assessment (“PEA”) pursuant to section 75E of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) for the 7km underground metro railway (CBD Metro) from Rozelle to Central, estimated to cost $4.4 billion.

The project envisages new stations at Rozelle, Pyrmont, Barangaroo-Wynard, Town Hall Square and Central. A further station may be built at White Bay in the future. It is intended that construction will commence in 2010 with the entire metro operational by the end of 2015.

The PEA broadly sets out the environmental impacts arising from the project and identifies mitigation strategies to be further considered.

As the name implies the PEA is a broad brush document. Very little detail is given in respect of some significant issues (for example, depth of the proposed tunnels, impact on heritage items, management of contaminated spoil and land, waste disposal). A more detailed environmental assessment is to be completed once the Department has issued the Director-General’s requirements for the project. The PEA does, however, give some useful indications as to the overall concept and extent of the project. Click here to view the PEA.

Sydney Metro Authority

A new Sydney Metro Authority has been established under the Transport Administration Act 1988 (NSW) to oversee the development and operation of the CBD Metro system and to co-ordinate the future linkage of that system to other areas of Sydney. The Sydney Metro Authority is vested with a comprehensive array of powers including, relevantly:

• the power to carry out development or facilitate, manage or finance development on land located on or in the vicinity of metro rail systems

• the power to enter into contracts and other arrangements for the development, management, control, maintenance and operation of metro rail systems

• the power to develop station plans, and

• the power to acquire land in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).

Planning Considerations

The CBD Metro project has been declared to be both critical infrastructure and a project to which Part 3A of the EP&A Act applies. As a consequence, special features of Part 3A apply which make it easier and faster to obtain approval for the project. These include:

• EPIs (including SEPPs) do not apply to the carrying out of the project unless a SEPP expressly relates to the project.

• Neither the proponent nor any objector has the right to appeal the Minister’s determination on the merits.

• Only the Minister can institute enforcement proceedings.

• There are limited requirements for the certification of construction and subdivision work.

• The application of environmental legislation which would normally apply to a project (for example the Heritage Act ) is limited.

Amendments to the State Environmental Planning Policy (Infrastructure) 2007 (“the Infrastructure SEPP”) came into effect on Friday, 20 February 2009. These changes impact significantly on proposed development in and around the CBD Metro corridor (presently defined in the legislation as the “Interim Metro Corridor”). Click here to view the Infrastructure SEPP.

New clause 88A applies to land within the City of Sydney that is within the Interim Metro Corridor. Under this clause the Council is required to forward the details of any major development application to Sydney Metro and must not grant consent to any development if the development would have an adverse effect on the viability of the proposed metro, including increasing the likely cost of developing the proposed metro. Although the clause expressly relates to land “within” the Interim Metro Corridor, there is no indication of how widely this term will be construed. It is feasible that it will be defined to include land within the vicinity of the Interim Metro Corridor.

For the purpose of determining whether development would have an adverse effect on the viability of the proposed metro, the Council may rely on a certificate issued by Sydney Metro that certifies whether there would be such an adverse effect. The certificate will not be binding on the consent authority but is likely to be persuasive in the authority’s determination.

Clause 88B applies to land in and adjacent to all the proposed CBD metro stations and is drafted in similar terms to clause 88A. A consent authority must not grant consent to development on such land unless it has taken into consideration whether the proposed development will adversely affect the development and operation of the proposed metro station (including access to and egress from the station) and whether the development will encourage the use of public transport.

Clause 88C applies specifically to proposed development in and adjacent to the proposed Rozelle metro station. The relevant consent authority must notify Sydney Metro of any such development and, in determining whether to grant consent to the development, the consent authority must take into account any submissions received by Sydney Metro within 21 days of giving such notice.

As with clause 88A, there is no indication of how widely the term “adjacent to” will be understood as it is used in clauses 88B and 88C. The term is sufficiently ambiguous to be given a potentially broad application.

Given the premium real estate that the corridor passes through and the significant basement development that may otherwise be possible on land within this area, these amendments are likely to have a significant impact on land value and the development potential of sites within the CBD.

The project timeline indicates that a detailed project assessment will be exhibited in the 4th quarter of 2009. It is to be hoped that by this time greater details of the project are available to enable meaningful community feedback and to enable property owners who may be affected by the proposal to have a better understanding of the likely impact on their land.