Critics of proposed changes to NSW planning laws believe they will fast-track contentious mining and renewable energy projects at the expense of local communities.
The bill would give the NSW planning secretary discretionary power to allow off-site infrastructure for state significant projects to be assessed separately from the main application.
In a statement, the Minister for Planning and Public Spaces Paul Scully said the Environmental Planning and Assessment Amendment (State Significant Development) Bill was needed "to reinstate legal certainty" over major projects.
It was developed in response to a recent Court of Appeal decision that blocked the Bowdens Silver Mine near Mudgee.
"The implications of the Court of Appeal's decision on Bowdens Silver Mine places around 60 state significant development projects at risk of legal challenge," Mr Scully said.
"That's around $50 billion worth of schools, hospitals, data centres, renewable energy and mining projects that could now be delayed due to this decision."
In the mine's case, the court found the planning department had not properly assessed the impact of a 13-kilometre transmission line, which was considered to be off-site infrastructure.
The government believed the decision set a precedent that could see similar projects face legal challenges over infrastructure like transmission lines.
NSW planning minister Paul Scully has introduced the legislation to parliament. (ABC News: Ethan Rix)
Legal concerns
The Australian Environmental Lawyers group believed allowing proponents to submit separate development applications for different infrastructure would prevent the planning department from assessing the cumulative impacts.
The Bowdens Silver Mine was approved by the Independent Planning Commission in 2023. (ABC Central West: Mollie Gorman)
Solicitor Elaine Johnson said this would have significant consequences for biodiversity in NSW.
"This legislation is not necessary in light of the Bowdens decision," she said.
"When we are assessing major projects we need to be looking at how much clearing is going on for the whole of the project … how are we going to manage those impacts holistically, not piece by piece.
"It's not good for our shared environment, particularly biodiversity outcomes of NSW, to assess and approve projects like this."
She described the legislation as a "knee-jerk response".
"There's a three-month time limit to challenge any administrative decision in NSW, so only infrastructure that was approved in the last three months without a consent would be affected and that is dealt with by the retrospective validation provisions of the act," she said.
"As for projects and infrastructure not yet approved, and in the assessment pipeline, all that happens post-Bowdens is the infrastructure requires development consent, if the state significant development project also requires consent.
"We don't need special legislation to do anything about that."
The bill is set to have bipartisan support with NSW Shadow Planning Minister Scott Farlow saying the legislation would provide clarity and certainty for the market.
"There are still checks and balances in place within our state significant development system and they would all still apply to projects," Mr Farlow said.
"Unfortunately, following the court's determination, there's a lot of uncertainty in terms of what actually is part of the assessment.
"This isn't about one particular project. It's about the entire system."
Concerns in Mudgee
The Bowdens Silver Mine was approved by the Independent Planning Commission (IPC) in 2023.
However, in August this year, a NSW Court of Appeals deemed the approval null and void when upholding an appeal by the Bingham Catchment Landcare Group.
The panel of judges found the IPC failed to consider the impacts of a 13km transmission line that the Department of Planning and Environment had deemed required a separate application.
The state significant development application for the mine will need to be re-determined by the IPC.
President of the Landcare group Jack White said members were concerned the legislation was an attempt to fast-track future plans for the Bowdens mine.
"Under this new legislation Bowdens may be playing under a new law," he said.
"We are talking about the piece of powerline that is going to supply the mine and get it up and going so it is pretty clear that this is an integral piece of infrastructure.
"It makes it nearly impossible to fully qualify the cumulative impact of, for example, the Bowden's mine because it would have significant parts of it that have not been assessed."
Residents in the Mudgee district protested against the approval of the Bowdens mine. (ABC Central West: Joanna Woodburn)
Mr White believed the legislation would further damage the community's confidence in the planning system.
"We have so little confidence … this decision gives the planning secretary more power."
The proposed legislation has been welcomed by Bowdens Silver.
A spokesperson for the company said the amendments "should provide certainty to all stakeholders who stand to benefit from all State Significant Developments across all industries".
They said they remained committed to bringing the project to a reality.
The proposed planning law amendment will return to parliament this week.