The Department of Planning, Industry and Environment has released a proposed Environmental Planning and Assessment Regulation 2021, including energy recovery facilities being categorised as ‘designated development’, with some exceptions.
Published on 7 September, 2021.
The Environmental Planning and Assessment Regulation 2000 (NSW) is scheduled for automatic repeal on 1 March 2022 under the requirements of the Subordinate Legislation Act 1989.
The Department of Planning, Industry and Environment has released a proposed Environmental Planning and Assessment Regulation 2021 (Proposed 2021 Regulation), which includes a number of changes that the Department says are designed to make the planning system easier to use.
One of these changes will result in ‘energy recovery facilities’ being categorised as ‘designated development’. ‘Energy recovery facilities’ will be defined as a building or a place that receives waste from on site or off site and that recovers energy from waste. Development for the purposes of an ‘energy recovery facility’ will be designated development if the facility:
a) processes more than 200 tonnes per year of waste, other than hazardous waste, restricted solid waste, liquid waste or special waste,
or
b) has on site at any time more than 200 kilograms of hazardous waste, restricted solid waste, liquid waste or special waste.
The processing of contaminated soil, container reconditioning, and the recovery of gases classified in Class 2 under the ADG Code will not be designated development. Interestingly, although the Regulatory Impact Statement for the Proposed 2021 Regulation states that energy recovery from waste facilities will only be designated development where they also require an EPL, only those facilities that receive general waste from offsite (not onsite) are required to hold an EPL as ‘energy recovery facilities’ – whereas facilities that receive such waste from both on site and off site sources will be designated development (the trigger for the need to hold an EPL for facilities that recover energy from hazardous waste, restricted solid waste, liquid waste or special waste is the storage of a specified amount of waste so the source is not relevant).
Further, under Proposed 2021 Regulation and the State Environmental Planning Policy (Activation Precincts) 2020, development for the purposes of ‘thermal electricity generating works’ are not designated development within the Regional Enterprise Zone in the Parkes Activation Precinct. ‘Thermal electricity generating works’ are defined to mean ‘electricity generating works that process waste (other than hazardous waste, restricted solid waste, liquid waste or special waste) by thermal treatment for the purposes of generating electricity.’
As a result, if the Proposed 2021 Regulation is made as drafted, facilities that generate energy from waste and that:
− process more than 200 tpa of general waste from offsite will be designated development – unless in the Parkes Activation Precinct – and need an EPL;
− process more than 200 tpa of general waste from onsite will be designated development – unless in the Parkes Activation Precinct – but will not need an EPL; or
− have on site more than 200 kg of hazardous waste, restricted solid waste, liquid waste or special waste – regardless of the source of the material and location of the facility – will be designated development and will need an EPL.
We would also have four different definitions for the same type of facilities under different pieces of planning and environmental law and policy in NSW:
− Energy recovery facility under the Protection of the Environment Operations Act 1997.
− Energy recovery facility under the Environmental Planning and Assessment Act – with a different definition to that adopted under the Protection of the Environment Operations Act 1997
− Thermal electricity generating works – under the State Environmental Planning Policy (Activation Precincts) 2020.
− Energy from waste – as defined in the NSW EPA’s Energy from Waste Policy
Jennifer Hughes, Principal
Beatty Hughes & Associates
