As part of a broader review of State Environmental Planning Policies, amendments have been proposed to State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP). The amendments are presently being considered following a public consultation process.
The amendments propose inclusion of an expanded range of development under the Infrastructure SEPP. In considering that expanded range of development, it is relevant to consider that the Infrastructure SEPP generally holds primacy over local environmental plans to the extent of any inconsistency.
In addition to a number of amendments which simplify the operation of the Infrastructure SEPP, the amendments within the Draft SEPP include:
Health services facilities
Health services facilities are broadly defined under the Infrastructure SEPP and include consulting rooms, hospitals, community health services facilities and medical centres. A new regime is proposed expanding the range of exempt development, complying development and development that may be carried out without consent within the boundaries of existing health services facilities. Health services facilities are also proposed to be made permissible with consent by any person (even where they are prohibited by local controls) in an extended range of land use zones, and in particular the R2 Low Density Residential Zone.
Railways and commuter hubs
An expanded range of development relating to railways and commuter hubs is to be covered which is relevant in light of recent and proposed public transport projects in Sydney.
The new provisions expand the range of development, including commercial and residential development, that can be carried out with consent by any person notwithstanding any prohibition of that use under an applicable LEP. For example, residential accommodation, retail premises, business premises, and tourist and visitor accommodation is to be made permissible where it is carried out “wholly or partly above a railway station“.
The term “partly above” is not defined and it will be interesting to see the breadth of the interpretation adopted for that provision. It is conceivable, for example, that a large residential development may rely on the clause even if only a very small portion of the development is in fact “above” a railway station.
Retail and business premises are also proposed to be made permissible in railway complexes, transport interchanges and commuter car parks.
A further proposed amendment is a provision which enables temporary crushing plants and temporary concrete batching plants to be carried out in or adjacent to a rail corridor without consent by public authorities. Whilst development of this nature would be subject to an assessment process under Part 5 of the Environmental Planning and Assessment Act 1979, these types of development are in our experience controversial, particularly where they are carried out in proximity to residential areas.
Some police facilities are presently contemplated by the Infrastructure SEPP under the broader definitions of emergency services facilities and public administration buildings. The scope of the Infrastructure SEPP in this respect is proposed to be broadened, with a new definition of “police services facility” to be added, which is defined to mean “a building or place (including a helipad) that is used in connection with the provision of police services by the NSW Police Force, including police training facilities“.
This is a broad definition because the words “in connection with” have generally been interpreted as having wide import by the Court (see, for example, Sydney Catchment Authority v Bailey (No.2)  NSWLEC 191).
Under the amendments, police services facilities may be carried out with consent in a broader range of zones than had previously been allowed under the Infrastructure SEPP (even where they are prohibited under local controls), including a broad range of residential zones (R1, R2, R3, R4 & R5), environmental management zones (E3 and E4) and the RE1 public recreation zone.
Some of the amendments may prove to be controversial, particularly those that facilitate commercial and residential development not otherwise permissible under local controls.
Taken as a whole, however, the amendments generally accord with the aims of the Infrastructure SEPP and the objective of the review which is to improve the effectiveness and useability of the current policy.
This article was written by Jane Hewitt, Partner and Tom Messenger, Senior Associate.