An Act to institute a system of environmental planning and assessment for the State of New South Wales.
Part 1 Preliminary
1 Name of Act
This Act may be cited as the Environmental Planning and Assessment Act 1979.
2 Commencement
(1) This section and sections 1 and 155 shall commence on the date of assent to this Act.(2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.
3 (Repealed)
s 3: Am 1981 No 83, Sch 1. Rep 1985 No 228, Sch 8 (1).
4 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:accredited certifier, in relation to matters of a particular kind, means the holder of a certificate of accreditation as an accredited certifier under the Building Professionals Act 2005 in relation to those matters.advertised development means development, other than designated development, that is identified as advertised development by the regulations, an environmental planning instrument or a development control plan.
Advertised development includes any development for the purposes of a scheduled activity at any premises under the Protection of the Environment Operations Act 1997 that is not designated development.advertisement means a sign, notice, device or representation in the nature of an advertisement visible from any public place or public reserve or from any navigable water.advertising structure means a structure used or to be used principally for the display of an advertisement.affordable housing means housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument.alignment means the boundary line between any public place and any land abutting that place.area has the same meaning as it has in the Local Government Act 1993.associated structure has the same meaning as in the Local Government Act 1993.brothel means a brothel within the meaning of the Restricted Premises Act 1943, other than premises used or likely to be used for the purposes of prostitution by no more than one prostitute.building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure.Building Code of Australia means the document, published by or on behalf of the Australian Building Codes Board, that is prescribed for purposes of this definition by the regulations, together with:(a) such amendments made by the Board, andas are prescribed by the regulations.(b) such variations approved by the Board in relation to New South Wales,Building Professionals Board means the Building Professionals Board constituted under the Building Professionals Act 2005.building work means any physical activity involved in the erection of a building.bush fire prone land, in relation to an area, means land recorded for the time being as bush fire prone land on a bush fire prone land map for the area.bush fire prone land map for an area means a map for the area certified as referred to in section 146 (2).means a person who:(a) is authorised by or under section 85A to issue complying development certificates, or(b) is authorised by or under section 109D to issue Part 4A certificates.change of building use means a change of use of a building from a use that the Building Code of Australia recognises as appropriate to one class of building to a use that the Building Code of Australia recognises as appropriate to a different class of building.compliance certificate means a certificate referred to in section 109C (1) (a).complying development is development for which provision is made as referred to in section 76A (5).complying development certificate means a complying development certificate referred to in section 85., in relation to a development application or an application for a complying development certificate, means:(a) the council having the function to determine the application, or(b) if a provision of this Act, the regulations or an environmental planning instrument specifies a Minister, the Planning Assessment Commission, a joint regional planning panel or public authority (other than a council) as having the function to determine the application—that Minister, Commission, panel or authority, as the case may be.construction certificate means a certificate referred to in section 109C (1) (b).control, in relation to development or any other act, matter or thing, means:(a) consent to, permit, regulate, restrict or prohibit that development or that other act, matter or thing, either unconditionally or subject to conditions, or(b) confer or impose on a consent authority functions with respect to consenting to, permitting, regulating, restricting or prohibiting that development or that other act, matter or thing, either unconditionally or subject to conditions.corporation means the corporation constituted by section 8 (1).council has the same meaning as it has in the Local Government Act 1993.Court means the Land and Environment Court.critical habitat has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.critical stage inspections means the inspections prescribed by the regulations for the purposes of section 109E (3) (d).Crown land has the same meaning as in the Crown Lands Act 1989.Department means the Department of Planning.designated development has the meaning given by section 77A.development means:(a) the use of land, and(b) the subdivision of land, and(c) the erection of a building, and(d) the carrying out of a work, and(e) the demolition of a building or work, andbut does not include any development of a class or description prescribed by the regulations for the purposes of this definition.(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,development application means an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate.development area means land constituted as a development area in accordance with Division 1 of Part 7.development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate.development control plan (or DCP) means a development control plan made, or taken to have been made, under Division 6 of Part 3 and in force.development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,(b) the proportion or percentage of the area of a site which a building or work may occupy,(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work,(d) the cubic content or floor space of a building,(e) the intensity or density of the use of any land, building or work,(f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment,(g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles,(h) the volume, nature and type of traffic generated by the development,(i) road patterns,(j) drainage,(k) the carrying out of earthworks,(l) the effects of development on patterns of wind, sunlight, daylight or shadows,(m) the provision of services, facilities and amenities demanded by development,(n) the emission of pollution and means for its prevention or control or mitigation, and(o) such other matters as may be prescribed.Director-General means the Director-General of the Department.ecological community has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.ecologically sustainable development has the same meaning it has in section 6 (2) of the Protection of the Environment Administration Act 1991.endangered ecological community means an endangered ecological community within the meaning of the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.endangered population means an endangered population within the meaning of the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.endangered species means an endangered species within the meaning of the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.environment includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings.environmental planning instrument means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force.exempt development is development for which provision is made as referred to in section 76 (2).functions includes powers, authorities and duties.habitat has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.independent hearing and assessment panel means a panel constituted under section 23I.integrated development has the meaning given by section 91.joint regional planning panel means a joint regional planning panel constituted under section 23G.land includes:(a) the sea or an arm of the sea,(b) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal, and(c) a river, stream or watercourse, whether tidal or non-tidal, and(d) a building erected on the land.local environmental plan (or LEP)—see section 24 (2).manufactured home has the same meaning as in the Local Government Act 1993.moveable dwelling has the same meaning as in the Local Government Act 1993.objector means a person who has made a submission under section 79 (5) by way of objection to a development application for consent to carry out designated development.occupation certificate means a certificate referred to in section 109C (1) (c).occupier includes a tenant or other lawful occupant of premises, not being the owner.officer of the Department means an officer or employee of the Department, and includes the Director-General.owner has the same meaning as in the Local Government Act 1993 and includes, in Division 2A of Part 6, in relation to a building, the owner of the building or the owner of the land on which the building is erected.owner-builder has the same meaning as in the Home Building Act 1989.Part 4A certificate means a certificate referred to in section 109C (1) (a), (b), (c) or (d).person includes an unincorporated group of persons or a person authorised to represent that group.includes a boarding house, a common lodging house, a house let in lodgings and a backpackers hostel.Planning Assessment Commission means the Planning Assessment Commission constituted under section 23B.planning assessment panel means a panel listed in Schedule 5B.population has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.premises means any of the following:(a) a building of any description or any part of it and the appurtenances to it,(b) a manufactured home, moveable dwelling and associated structure,(c) land, whether built on or not,(d) a tent,(e) a swimming pool,(f) a ship or vessel of any description (including a houseboat).means a principal certifying authority appointed under section 109E.principal contractor for building work means the person responsible for the overall co-ordination and control of the carrying out of the building work.Note—If any residential building work is involved, the principal contractor must be the holder of a contractor licence under the Home Building Act 1989.prohibited development means:(a) development the carrying out of which is prohibited on land by the provisions of an environmental planning instrument that apply to the land, or(b) development that cannot be carried out on land with or without development consent.provision for fire safety means provision for any or all of the following:(a) the safety of persons in the event of fire,(b) the prevention of fire,(c) the detection of fire,(d) the suppression of fire,(e) the prevention of the spread of fire.means:(a) a public or local authority constituted by or under an Act, or(b) a government Department, or(c) a statutory body representing the Crown, or(d) a chief executive officer within the meaning of the Public Sector Management Act 1988 (including the Director-General), or(e) a statutory State owned corporation (and its subsidiaries) within the meaning of the State Owned Corporations Act 1989, or(f) a chief executive officer of a corporation or subsidiary referred to in paragraph (e), or(g) a person prescribed by the regulations for the purposes of this definition.public place has the same meaning as in the Local Government Act 1993.public reserve has the same meaning as in the Local Government Act 1993.public road has the same meaning as in the Roads Act 1993.recovery plan has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.region means any land that the Minister, under subsection (6), declares to be a region, except as provided by subsection (6A).regulation means a regulation made under this Act.:(a) in relation to environmental planning instruments—see section 54, or(b) in relation to development control plans—see section 74B.residential building work has the same meaning as in the Home Building Act 1989.species has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.species impact statement has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.State environmental planning policy (or SEPP)—see section 24 (2).subdivision certificate means a certificate referred to in section 109C (1) (d).subdivision of land has the meaning given by section 4B.subdivision work means any physical activity authorised to be carried out under the conditions of a development consent for the subdivision of land, as referred to in section 81A (3).temporary structure includes a booth, tent or other temporary enclosure (whether or not part of the booth, tent or enclosure is permanent), and also includes a mobile structure.threat abatement plan has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.threatened species has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.threatened species, populations and ecological communities and threatened species, population or ecological community have the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994, except as provided by section 5D.Note—Section 5D excludes vulnerable ecological communities from this expression.threatening process has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.vulnerable ecological community has the same meaning as in the Threatened Species Conservation Act 1995.vulnerable species has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.(2) A reference in this Act to:(a) the use of land includes a reference to a change of building use, and(b) the erection of a building includes a reference to:(i) the rebuilding of, the making of alterations to, or the enlargement or extension of, a building, or(ii) the placing or relocating of a building on land, or(iii) enclosing a public place in connection with the construction of a building, or(iv) erecting an advertising structure over a public road, or(v) extending a balcony, awning, sunshade or similar structure or an essential service pipe beyond the alignment of a public road, and(c) the carrying out of a work includes a reference to:(i) the rebuilding of, the making of alterations to, or the enlargement or extension of, a work, or(ii) enclosing a public place in connection with the carrying out of a work, and(d) a work includes a reference to any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act, and(e) the demolition of a building or work includes a reference to enclosing a public place in connection with the demolition of a building or work, and(f) the carrying out of development includes a reference to the use of land or a building, the subdivision of land, the erection of a building, the carrying out of a work, the demolition of a building or work or the doing of any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument.(3) Where functions are conferred or imposed by or under this Act on a council:(a) except as provided in paragraph (b), those functions may be exercised in respect of an area by the council of that area, or(b) if the functions are conferred or imposed in respect of part of an area, those functions may be exercised in respect of that part by the council of that area.(3A) Where functions are conferred or imposed by or under this Act on a public authority, being a government Department or some other unincorporated group of persons, those functions may be exercised by a person who is authorised to exercise those functions on behalf of the public authority.(4) A reference in this Act to the exercise of a function includes, where that function is a duty, a reference to the performance of that duty.(5) A reference in this Act to an authority or person preparing a document includes a reference to the authority or person causing the document to be prepared on the authority’s or person’s behalf.(6) The Minister may, by order published in the Gazette, declare any land, whether or not consisting of areas or parts of areas, to be a region for the purposes of this Act.Editorial note—For orders under this subsection, see the Historical notes at the end of this Act.(6A) However, for the purposes of sections 5A, 79B (5) and 112D, a region has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.(7) A reference in this Act to a direction is a reference to a direction in writing.(7A) A power, express or implied, of the Minister to make a declaration under this Act includes a power to revoke or amend the declaration.(8) A power, express or implied, to give a direction under this Act includes a power to revoke or amend the direction.(8A) If an environmental planning instrument confers a power on any person or body to make an order (whether or not the order must be in writing), the power includes a power to amend or repeal an order made in the exercise of the power.(9) A reference in this Act to a prescribed form includes a reference to a form that is to the effect of that prescribed form.(10) A reference in this Act to any act, matter or thing as specified in an environmental planning instrument includes a reference to any act, matter or thing that is of a class or description as specified in such an instrument.(11) A reference in this Act to the granting of consent includes a reference to the granting of consent subject to conditions.(12) Without affecting the generality of section 8 (b) of the Interpretation Act 1987, a reference in this Act to the owner or lessee of land includes a reference to joint or multiple owners or lessees of land.(13) Notes in this Act are explanatory notes and do not form part of this Act.(14) A reference in this Act to an original document, map or plan includes a reference to a document, map or plan created, or a copy of which is kept, in electronic form.s 4: Am 1985 No 228, Schs 2 (1), 8 (2); 1986 No 220, Sch 1; 1991 No 66, Sch 2 (1); 1992 No 34, Sch 1; 1994 No 44, Sch 19; 1995 No 11, Sch 1.41 [1]; 1995 No 32, Sch 3.2; 1995 No 36, Sch 6.3 [1]; 1995 No 95, Sch 4.9; 1995 No 101, Sch 5 [1]–[4]; 1996 No 44, Sch 10 [1]; 1996 No 45, Sch 1 [1]–[3]; 1996 No 139, Sch 2.15 [1] [2] (am 1997 No 55, Sch 2.18 [1] [2]); 1997 No 81, Sch 1 [1]; 1997 No 152, Sch 1 [1]–[8]; 1997 No 153, Sch 6.1 [1]; 1997 No 156, Sch 4.3 [1]; 1998 No 54, Sch 1.9 [1] [2]; 1999 No 72, Schs 1 [1], 4 [1]; 2000 No 93, Sch 1.8 [1]; 2001 No 56, Sch 1.3 [1]; 2001 No 93, Sch 2 [1] (am 2006 No 123, Sch 3.2 [1]); 2002 No 67, Sch 1 [1]; 2002 No 78, Sch 2.1 [1]–[3]; 2003 No 95, Sch 1 [1] [2]; 2005 No 43, Schs 1 [2], 2 [1], 6 [1]–[3]; 2005 No 115, Sch 3.2 [1] [2]; 2006 No 123, Sch 1 [1]; 2007 No 29, Sch 1 [1]; 2007 No 92, Sch 4.6; 2008 No 36, Schs 1.1 [1]–[3], 1.2 [1]–[5], 2.1 [1] [2] [3], 4.1 [1] [2], 5.1 [1].
4A (Repealed)
s 4A: Ins 1991 No 66, Sch 2 (2). Rep 1995 No 101, Sch 5 [5].
4B Subdivision of land
(1) For the purposes of this Act, subdivision of land means the division of land into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected:(a) by conveyance, transfer or partition, or(b) by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition.(2) Without limiting subsection (1), subdivision of land includes the procuring of the registration in the office of the Registrar-General of:(a) a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919, or(b) a strata plan or a strata plan of subdivision within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.Note—The definition of plan of subdivision in section 195 of the Conveyancing Act 1919 extends to plans of subdivision for lease purposes (within the meaning of section 23H of that Act) and to various kinds of plan under the Community Land Development Act 1989.(3) However, subdivision of land does not include:(a) a lease (of any duration) of a building or part of a building, or(b) the opening of a public road, or the dedication of land as a public road, by the Crown, a statutory body representing the Crown or a council, or(c) the acquisition of land, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or(d) a division of land effected by means of a transaction referred to in section 23G of the Conveyancing Act 1919, or(e) the procuring of the registration in the office of the Registrar-General of:(i) a plan of consolidation, a plan of identification or a miscellaneous plan within the meaning of section 195 of the Conveyancing Act 1919, or(ii) a strata plan of consolidation or a building alteration plan within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.s 4B: Ins 1997 No 152, Sch 1 [9].
5 Objects
The objects of this Act are:(a) to encourage:(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,(ii) the promotion and co-ordination of the orderly and economic use and development of land,(iii) the protection, provision and co-ordination of communication and utility services,(iv) the provision of land for public purposes,(v) the provision and co-ordination of community services and facilities, and(vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and(vii) ecologically sustainable development, and(viii) the provision and maintenance of affordable housing, and(b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and(c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.s 5: Am 1995 No 101, Sch 5 [6]; 1997 No 152, Sch 1 [10]; 1999 No 72, Sch 1 [2].
5A Significant effect on threatened species, populations or ecological communities, or their habitats
(1) For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats:(a) each of the factors listed in subsection (2),(b) any assessment guidelines.(2) The following factors must be taken into account in making a determination under this section:(a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,(b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction,(c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed:(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,(d) in relation to the habitat of a threatened species, population or ecological community:(i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality,(e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly),(f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan,(g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.(3) In this section:assessment guidelines means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995 or, subject to section 5C, section 220ZZA of the Fisheries Management Act 1994.key threatening process has the same meaning as in the Threatened Species Conservation Act 1995 or, subject to section 5C, Part 7A of the Fisheries Management Act 1994.s 5A: Ins 1995 No 101, Sch 5 [7]. Am 1997 No 152, Sch 1 [11]. Subst 2002 No 78, Sch 2.1 [4].
5B Planning authorities to have regard to register of critical habitat
(1) Each planning authority must have regard to the register of critical habitat kept by the Director-General of the Department of Environment, Climate Change and Water under the Threatened Species Conservation Act 1995 when exercising its functions under this Act.(2) In this section, in relation to a function under this Act means:(a) in the case of a function relating to a development application—the consent authority (or a person or body taken to be a consent authority), and(b) in the case of any other function—the public authority or other person responsible for exercising the function.s 5B: Ins 1997 No 152, Sch 1 [12]. Am 2009 No 106, Sch 2.11 [1].
5C Application of Act with respect to threatened species conservation—fish and marine vegetation
(1) A reference in this Act to the Threatened Species Conservation Act 1995, in connection with critical habitat, or threatened species, populations or ecological communities, or their habitats, is to be construed in accordance with this section.(2) To the extent that the matter concerns critical habitat of fish or marine vegetation, or threatened species, populations or ecological communities of fish or marine vegetation, or their habitats:(a) a reference to the Threatened Species Conservation Act 1995 is taken to be a reference to Part 7A of the Fisheries Management Act 1994, and(b) a reference to the Minister administering the Threatened Species Conservation Act 1995 is taken to be a reference to the Minister administering the Fisheries Management Act 1994, and(c) a reference to the Director-General of the Department of Environment, Climate Change and Water is taken to be a reference to the Director-General of the Department of Industry and Investment.(3) In this section:fish has the same meaning as in Part 7A of the Fisheries Management Act 1994.marine vegetation has the same meaning as in Part 7A of the Fisheries Management Act 1994.s 5C: Ins 1997 No 153, Sch 6.1 [2]. Am 2000 No 93, Sch 1.8 [3]; 2002 No 78, Sch 2.1 [5]; 2009 No 106, Sch 2.11 [1] [2].
5D Application of Act to vulnerable ecological communities
(1) In this Act, a reference to threatened species, populations and ecological communities or threatened species, population or ecological community (however expressed) does not include a reference to any vulnerable ecological community.(2) However, this section does not affect the application of this Act to any threatened species or endangered population that forms part of a vulnerable ecological community.Note—Vulnerable ecological communities are generally excluded from the provisions of this Act relating to threatened species, populations and ecological communities, including provisions that require the concurrence of the Director-General of the Department of Environment, Climate Change and Water or the Minister administering the Threatened Species Conservation Act 1995, or the preparation of a species impact statement, in respect of development or an activity that is likely to have a significant effect on threatened species, populations or ecological communities (subject to subsection (2) above). However, vulnerable ecological communities are relevant to the preparation of environmental planning instruments under section 26.s 5D: Ins 2002 No 78, Sch 2.1 [6]. Am 2009 No 106, Sch 2.11 [1].
6 Act to bind Crown
This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.
Part 2 Administration
Division 1 The Minister
7 Responsibility of Minister
Without affecting the functions that the Minister has apart from this section, the Minister is charged with the responsibility of promoting and co-ordinating environmental planning and assessment for the purpose of carrying out the objects of this Act and, in discharging that responsibility, shall have and may exercise the following functions:(a) to carry out research into problems of environmental planning and assessment and disseminate information including the issue of memoranda, reports, bulletins, maps or plans relating to environmental planning and assessment,(b) to advise councils upon all matters concerning the principles of environmental planning and assessment and the implementation thereof in environmental planning instruments,(c) to promote the co-ordination of the provision of public utility and community services and facilities within the State,(d) to promote planning of the distribution of population and economic activity within the State,(e) to investigate the social aspects of economic activity and population distribution in relation to the distribution of utility services and facilities, and(f) to monitor progress and performance in environmental planning and assessment, and to initiate the taking of remedial action where necessary.s 7: Am 2008 No 36, Sch 1.2 [6].
8 Minister to be corporation sole for certain purposes
(1) The Minister is, for the purpose of exercising those functions expressed to be conferred or imposed on the corporation by or under this or any other Act, hereby incorporated as a corporation sole with the corporate name “Minister administering the Environmental Planning and Assessment Act 1979”.(2) The corporation:(a) has perpetual succession,(b) shall have an official seal,(c) may take proceedings, and be proceeded against, in its corporate name,(d) may do and suffer all other things that a body corporate generally may, by law, do and suffer and that are necessary for or incidental to the purposes for which the corporation is constituted, and(e) is, for the purpose of any Act, a statutory body representing the Crown.(3) The seal of the corporation shall not be affixed to any instrument or document except in the presence of the Minister, or an officer of the Department for the time being authorised by the Minister for the purpose, who shall attest by his or her signature the fact and date of the affixing of the seal.(4) All courts and persons acting judicially:(a) shall take judicial notice of the seal of the corporation that has been affixed to any instrument or document,(b) shall, until the contrary is proved, presume that the seal was properly affixed.(5) For the purposes of section 81 of the Public Works Act 1912, the corporation shall be deemed to be a Constructing Authority.
9 Power to acquire land etc
(1) The corporation may, for the purposes of this Act or pursuant to any function conferred or imposed on the Minister or the Director-General by any environmental planning instrument, acquire land by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.(2) Without limiting the generality of subsection (1), the corporation may acquire in any manner authorised by that subsection:(a) any land to which an environmental planning instrument applies and which the Minister considers should be made available in the public interest for any purpose,(b) any land of which that proposed to be acquired under this Part forms part, or(c) any land adjoining or in the vicinity of any land proposed to be acquired under this Part, or(d) a leasehold or any other interest in land.(3) The corporation may acquire, by gift inter vivos, devise or bequest, any property for the purposes of this Act and may agree to the condition of any such gift, devise or bequest.(4) The rule of law against remoteness of vesting shall not apply to any such condition to which the corporation has agreed.(5) Where the corporation acquires property under subsection (3):(a) neither an instrument that effects the acquisition nor any agreement pursuant to which the property is acquired is chargeable with duty under the Stamp Duties Act 1920, and(b) the property, or the value of the property, shall not be included in the dutiable estate of the donor or testator for the purposes of assessing death duty under that Act.s 9: Am 1991 No 22, Sch 1.
10 Application of Public Works Act 1912
(1) For the purposes of the Public Works Act 1912, any acquisition of land under section 9 is taken to be for an authorised work and the corporation is, in relation to that authorised work, taken to be the Constructing Authority.(2) Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in respect of works constructed under this Act.s 10: Subst 1991 No 22, Sch 1.
11 Functions of corporation
(1) For the purposes of this Act, the corporation may, in such manner and subject to such terms and conditions as it thinks fit, sell, lease, exchange or otherwise dispose of or deal with land vested in the corporation and grant easements or rights-of-way over that land or any part thereof.(2) Without affecting the generality of subsection (1), the corporation may, in any contract for the sale of land vested in it, include conditions for or with respect to:(a) the erection of any building on that land by the purchaser within a specified period,(b) conferring on the corporation an option or right to repurchase that land if the purchaser has failed to comply with a condition referred to in paragraph (a),(c) conferring on the corporation an option or right to repurchase that land if the purchaser wishes to sell or otherwise dispose of that land before the expiration of a specified period or requiring the purchaser to pay to the corporation a sum determined in a specified manner where the corporation does not exercise that option or right, or(d) the determination of the repurchase price payable by the corporation pursuant to a condition referred to in paragraph (b) or (c).(3) A condition included in a contract of sale pursuant to subsection (2) does not merge in the transfer of title to the land, the subject of the contract of sale, on completion of the sale.(4) In addition to other functions conferred or imposed on the corporation by or under this or any other Act, the corporation may, for the purposes of this Act:(a) manage land vested in the corporation,(b) cause surveys to be made and plans of surveys to be prepared in relation to land vested in the corporation or in relation to any land proposed to be acquired by the corporation,(c) (Repealed)(d) demolish, or cause to be demolished, any building on land vested in the corporation of which it has exclusive possession,(e) provide, or arrange, on such terms and conditions as may be agreed upon for the location or relocation of utility services within or adjoining or in the vicinity of land vested in the corporation,(f) subdivide and re-subdivide land and consolidate subdivided or re-subdivided land vested in the corporation,(g) set out and construct roads on land vested in the corporation or on land of which the corporation has exclusive possession, or on any other land with the consent of the person in whom it is vested,(h) erect, alter, repair and renovate buildings on and make other improvements to or otherwise develop land vested in the corporation or any other land, with the consent of a person in whom it is vested,(i) cause any work to be done on or in relation to any land vested in the corporation or any other land, with the consent of the person in whom it is vested, for the purpose of rendering it fit to be used for any purpose for which it may be used under any environmental planning instrument which applies to the land, and(j) by notification published in the Gazette, dedicate any land vested in the corporation as a reserve for public recreation or other public purposes and fence, plant and improve any such reserve.(5) (Repealed)(6) In the exercise of any function under subsection (4) (g), consultations are to be held with the Roads and Traffic Authority, the relevant council and such other persons as the Minister determines.(7) In relation to any land (whether vested in the corporation or not), the corporation may exercise any function that is necessary or convenient to be exercised in, or for any purpose of, the application of any part of a Development Fund referred to in Division 1 of Part 7.s 11: Am 1993 No 33, Sch 1; 1994 No 44, Sch 19; 1999 No 72, Schs 2 [1], 5 [1] [2].
12 Notification of interests
(1) The Registrar-General shall, at the request of the corporation made in a manner approved by the Registrar-General and on payment of the fee prescribed under the Real Property Act 1900, make, in the Register kept under that Act, a recording appropriate to signify:(a) that land specified in the request is held subject to a condition authorised under section 11 (2), or(b) that a recording made pursuant to paragraph (a) has ceased to have effect.(2) The corporation shall not make a request pursuant to subsection (1) (a) except for the purpose of ensuring compliance with the conditions in the contract of sale under which the land was sold, but the Registrar-General shall not be concerned to inquire whether any such request has been made for that purpose.(3) Where a recording pursuant to subsection (1) (a) has been made in respect of any land, the Registrar-General shall not register under the Real Property Act 1900 a transfer of that land to or by a person other than the corporation unless it would be so registrable if this Part had not been enacted and unless:(a) a recording pursuant to subsection (1) (b) has been made in respect of the land, or(b) the consent of the corporation to the transfer has been endorsed thereon.(4) When a recording is made pursuant to subsection (1) in respect of any land, the Director-General shall notify the council in whose area the land is situated of the recording.s 12: Am 1997 No 152, Sch 1 [13].
Division 2 The Director-General
13 Director-General of Department of Infrastructure, Planning and Natural Resources
(1) (Repealed)(2) The Director-General shall, in the exercise of any function conferred upon the Director-General by or under this Act (except in relation to the contents of a recommendation or report made by the Director-General to the Minister), be subject to the control and direction of the Minister.(3) (Repealed)(4) A reference in any Act or statutory instrument, or in any other instrument, to the Director of Environment and Planning or to the Director of Planning or to the Director-General of the Department of Urban Affairs and Planning is to be read as a reference to the Director-General.(5) A reference in any environmental planning instrument, or any regulation or other instrument made under this Act, to the Director is taken to be a reference to the Director-General.s 13: Am 1988 No 20, Sch 5; 1995 No 36, Sch 6.3 [2] [3]; 2000 No 93, Sch 1.8 [4] [5]; 2005 No 43, Sch 6 [4].
14 (Repealed)
s 14: Rep 1995 No 36, Sch 6.3 [4].
15 Functions of the Director-General
In addition to the functions conferred or imposed on the Director-General by or under this or any other Act, the Director-General may, for the purposes of this Act:(a) submit to the Minister such proposals with respect to environmental planning and assessment as the Director-General considers necessary or appropriate, including proposals for the development and use of land, whether or not in conjunction with the provision of utility services and public transport facilities, and(b) consider and furnish reports to and advise and make recommendations to the Minister upon any matter or proposal relating to the development and use of land or to environmental planning and assessment which may be referred to the Director-General by the Minister.
Division 3 The Department
16 (Repealed)
s 16: Rep 1979 No 203, sec 156.
17 Use of services of public authorities
For the purpose of exercising any functions of the Minister, corporation, Department or Director-General under this or any other Act, the Director-General may, with the approval of the Minister and of the public authority concerned and on such terms as may be arranged, make use of the services of any officers, employees or servants of any public authority.
Division 4
18 (Repealed)
pt 2, div 4: Rep 2008 No 36, Sch 2.2 [1].
Division 5 Committees
19–21 (Repealed)
s 19: Rep 1992 No 90, Sch 1.
s 20: Am 2002 No 134, Sch 1.1 [2]. Rep 2008 No 36, Sch 2.1 [4].
s 21: Rep 1985 No 228, Sch 8 (3).
22 Establishment of other committees
(1) The Minister or Director-General may establish committees, in addition to those established by this Act.(2) The functions of a committee established under subsection (1) are to be as specified in the instrument by which the committee is established, and (without limitation) may include:(a) the investigation of any matter relevant to the administration or execution of this Act, and(b) the preparation of advice, opinions or recommendations with respect to any such matter for the Minister, the Director-General, a consent authority or any other person or body engaged in the administration of this Act.(3) The person who establishes a committee under this section may appoint one of the members as Chairperson of the committee.(4) The regulations may make provision for or with respect to the following matters:(a) the procedures of committees in exercising their functions,(b) the remuneration payable to committee members and alternate members,(c) the appointment of alternate members for committee members and the functions of alternate members,(d) the appointment and procedures of subcommittees in exercising their functions.(5) A committee established under subsection (1) is, for the purpose of any Act, a statutory body representing the Crown.s 22: Am 2002 No 134, Sch 1.1 [3] [4]; 2003 No 95, Sch 1 [3] [4]; 2008 No 36, Sch 2.1 [5].
Division 6 Delegation
23 Delegation
(1) The Minister, corporation or Director-General may, by instrument in writing, under seal (in the case of the corporation), delegate any of the Minister’s, the corporation’s or the Director-General’s functions conferred or imposed by or under this or any other Act as are specified in the instrument to:(a) any officer of the Department,(b) any officer, employee or servant of whose services the Director-General makes use in pursuance of this or any other Act,(c) (Repealed)(c1) a development corporation under the Growth Centres (Development Corporations) Act 1974 or an officer or employee of any such corporation for the purposes of that Act,(c2) any other public authority or an officer or employee of any other public authority,(d) a council,(e) an officer or employee of a council,(f) the Planning Assessment Commission, orand may, by such an instrument, revoke wholly or in part any such delegation.(g) a joint regional planning panel,(1A) The Planning Assessment Commission may, by instrument in writing and with the approval of the Minister, delegate any of the Commission’s functions conferred or imposed by or under this or any other Act.(1B) A joint regional planning panel may, by instrument in writing and with the approval of the Minister, delegate any of the panel’s functions conferred or imposed by or under this or any other Act to a council for an area situated wholly or partly in a part of the State for which the panel is appointed.(2) A function, the exercise of which has been delegated under this section, may, while the delegation remains unrevoked, be exercised from time to time in accordance with the terms of the delegation.(3) A delegation under this section may be made subject to such conditions or limitations as to the exercise of any of the functions delegated, or as to time or circumstance, as may be specified in the instrument of delegation.(4) Notwithstanding any delegation under this section, the Minister, corporation, Director-General, Commission or panel, as the case may be, may continue to exercise all or any of the functions delegated.(5) Any act or thing done or suffered by a delegate while acting in the exercise of a delegation under this section shall have the same force and effect as if the act or thing had been done or suffered by the Minister, corporation, Director-General, Commission or panel, as the case may be, and shall be deemed to have been done or suffered by the Minister, corporation, Director-General, Commission or panel, as the case may be.(6) An instrument purporting to be signed by a delegate of the Minister, corporation, Director-General, Commission or panel, in the capacity as such a delegate, shall in all courts and before all persons acting judicially be received in evidence as if it were an instrument executed by the Minister, corporation, Director-General, Commission or panel, as the case may be, under seal (in the case of the corporation), and, until the contrary is proved, shall be deemed to be an instrument signed by a delegate of the Minister, corporation, Director-General, Commission or panel, as the case may be, under this section.(7) The Director-General shall cause to be published in the Gazette a notice setting out the details of any instrument referred to in subsection (1), but this subsection does not affect the provisions of subsection (1).(8) Nothing in this section authorises the delegation of:(a) the power of delegation conferred by this section, or(a1) the function of the Minister under Part 3A of determining whether to approve under section 75J the carrying out of a critical infrastructure project or under section 75O the concept plan for a critical infrastructure project, or(b) any function of the Minister conferred by section 80 (7), 117 or 118 or by section 130 (4).(9) Any matter or thing done and any contract entered into by a person acting in accordance with a delegation under this section shall not, if the matter or thing was done or the contract was entered into in good faith for the purpose of exercising the function delegated, subject the person to any action, liability, claim or demand.s 23: Am 1985 No 228, Sch 8 (4); 1993 No 93, Sch 1 (1); 1995 No 11, Sch 1.41 [2]; 1997 No 152, Sch 1 [13] [14]; 1999 No 72, Sch 2 [2]; 2001 No 56, Sch 1.3 [1]; 2002 No 134, Sch 1.1 [5]; 2005 No 43, Sch 1 [3]–[5]; 2005 No 115, Sch 3.2 [3]; 2008 No 36, Sch 2.1 [6]–[12].
Part 2A Other planning bodies
Division 1 Preliminary
pt 2A, div 1: Ins 2008 No 36, Sch 2.1 [13].
23A Definitions
In this Part:Commission means the Planning Assessment Commission.regional panel means a joint regional planning panel.pt 2A, div 2 (ss 23A–23F): Ins 2008 No 36, Sch 2.1 [13].
Division 2 Planning Assessment Commission
pt 2A, div 2 (ss 23A–23F): Ins 2008 No 36, Sch 2.1 [13].
23B Planning Assessment Commission
(1) There is constituted by this Act a body corporate with the corporate name of the Planning Assessment Commission of New South Wales.(2) The Commission has such functions as are conferred or imposed on it by or under this or any other Act.(3) The Commission is not subject to the direction or control of the Minister, except in relation to the procedures of the Commission and to the extent specifically provided for in this Act.(4) The Commission is a statutory body representing the Crown.Note—By virtue of section 13A of the Interpretation Act 1987, a statutory body representing the Crown has the status, privileges and immunities of the Crown.(5) Schedule 3 has effect with respect to the Commission.pt 2A, div 2 (ss 23A–23F): Ins 2008 No 36, Sch 2.1 [13].
23C Chairperson of Commission
The work of the Commission is, subject to this Act and the regulations, to be allocated by the chairperson of the Commission.Note—The chairperson is appointed under Schedule 3.pt 2A, div 2 (ss 23A–23F): Ins 2008 No 36, Sch 2.1 [13].
23D Functions of Commission
(1) The Commission has the following functions:(a) to determine applications for the approval of projects and concept plans under Part 3A, if those matters are delegated to it by the Minister,(b) if requested to do so by the Minister:(i) to advise the Minister as to planning or development matters, environmental planning instruments or the administration or implementation of the provisions of this Act, or any related matter, and(ii) to review any aspect of a project, or a concept plan, under Part 3A, and(iii) to review all or any of the environmental aspects of proposed development the subject of a development application (whether or not it is designated development), or a part of any such proposed development, and(iv) to review all or any of the environmental aspects of an activity referred to in section 112 (1), or of a part of any such activity, and(v) to review a proposal to constitute, alter or abolish a development area under section 132 or 133,(c) any function of a regional panel, an independent hearing and assessment panel or a planning assessment panel conferred on it by order in writing by the Minister,(d) if a regional panel has not been appointed for any part of the State, any function that is conferred on a regional panel under an environmental planning instrument applicable to that part or that is otherwise conferred on a regional panel under this Act.(2) For the purposes of subsection (1) (c) and (d), the Commission has all the functions of the panel concerned.(3) The Commission cannot employ any staff.Note—Staff to enable the Commission to exercise its functions may be employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the Government Service.(4) However, the Commission may:(a) arrange, with the approval of the Director-General, for the use of the services of any staff (by secondment or otherwise) or facilities of a Division of the Government Service or a public authority, and(b) with the approval of the Director-General, engage such consultants as it requires to exercise its functions.pt 2A, div 2 (ss 23A–23F): Ins 2008 No 36, Sch 2.1 [13].
23E Reviews by, and procedures of, Commission
The regulations may make provision for or with respect to the following:(a) the procedures of the Commission, including the procedures for reviews relating to any or all, or a class, of its functions,(b) without limiting paragraph (a), the circumstances in which public hearings are to be held by the Commission,(c) without limiting paragraph (a), providing that parties are not to be represented (whether by an Australian legal practitioner or any other person) or are only to be represented in specified circumstances,(d) the conferral on the Commission of power to require a person to give evidence or produce documents for the purposes of a review or the exercise of any of its other functions,(e) additional procedural requirements relating to hearings involving a proposed development or activity that may involve the need for an approval under the Water Management Act 2000 or a licence under the Water Act 1912,(f) reports of the Commission’s findings and recommendations,(g) the making of findings and recommendations of the Commission public,(h) the provision of information by the Commission.pt 2A, div 2 (ss 23A–23F): Ins 2008 No 36, Sch 2.1 [13].
23F No appeals against decisions by Commission after public hearings
(1) This section has effect despite any other provision of this Act or the regulations.(2) An appeal under this Act may not be made in respect of a decision of the Commission in exercising a function conferred on the Commission by or under this Act (including a function delegated to it under this Act) if the decision was made by the Commission after a public hearing.pt 2A, div 2 (ss 23A–23F): Ins 2008 No 36, Sch 2.1 [13].
Division 3 Joint regional planning panels
pt 2A, div 3: Ins 2008 No 36, Sch 2.1 [13].
23G Joint regional planning panels
(1) The Minister may, by order published in the Gazette, constitute a joint regional planning panel for a particular part of the State specified in the order.(2) A regional panel has the following functions:(a) any of a council’s functions as a consent authority that are conferred on it under an environmental planning instrument,(b) any functions that are conferred on it under Division 1AA (Planning administrators and panels) of Part 6,(c) to advise the Minister as to planning or development matters or environmental planning instruments relating to the part of the State for which it is appointed, or any related matters, if requested to do so by the Minister.(3) A regional panel has the functions conferred or imposed on it by or under this or any other Act.(4) A regional panel is not subject to the direction or control of the Minister, except in relation to the procedures of the regional panel and to the extent specifically provided for in this Act.(5) A regional panel is a statutory body representing the Crown.Note—By virtue of section 13A of the Interpretation Act 1987, a statutory body representing the Crown has the status, privileges and immunities of the Crown.(5A) Subject to the regulations, a regional panel is, in the exercise of functions conferred under subsection (2) (a), taken to be the council whose functions are conferred on a regional panel as referred to in subsection (2) (a).(5B) A regional panel is to exercise functions conferred as referred to in subsection (2) (a) to the exclusion of the applicable council (subject to any delegation under this Act).(5C) Subsections (5A) and (5B) apply to the Commission in its exercise of the functions of a regional panel under an environmental planning instrument that are conferred on the Commission under section 23D (1) (d) in the same way as they apply to a regional panel in the exercise of functions conferred as referred to in subsection (2) (a).(6) Schedule 4 has effect with respect to regional panels.s 23G: Ins 2008 No 36, Sch 2.1 [13]. Am 2009 No 34, Sch 2 [1] [2].
23H Regulations
The regulations may make provision for or with respect to the following matters:(a) the functions conferred by this Act on a regional panel including its procedures in exercising its functions, and procedures in relation to its determination of development applications and applications to modify development consents,(b) the provision of information and reports by regional panels,(c) without limiting paragraph (a), providing that parties to matters being determined by a regional panel are not to be represented (whether by an Australian legal practitioner or any other person) or are only to be represented in specified circumstances.s 23H: Ins 2008 No 36, Sch 2.1 [13]. Am 2009 No 34, Sch 2 [3].
Division 4 Independent hearing and assessment panels
pt 2A, div 4: Ins 2008 No 36, Sch 2.1 [13].
23I Independent hearing and assessment panels
(1) A council may constitute a panel of experts to assess any aspect of a development application or any planning matter referred to the panel by the council (other than a matter subject to a determination or review by a regional panel).(2) A council must constitute a panel of experts to assess any aspect of a development application or any planning matter if an assessment by a panel is required by an environmental planning instrument.(3) The members of a panel of experts are to consist of persons having expertise in at least 1 of planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering, tourism or government and public administration.(4) For the purposes of an assessment, a panel may receive or hear submissions from interested persons and must submit a report to the council within the time required by the council.(5) A panel is to exercise its functions in accordance with the regulations and any arrangements approved by the Minister. However, a panel is not subject to the direction of the Minister on the findings or recommendations in its report.(6) The council is to provide staff and facilities for the purpose of enabling a panel to exercise its functions.(7) A member of a panel is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.pt 2A, div 6 (ss 23I, 23J, 23M–23O): Ins 2008 No 36, Sch 2.1 [13].
23J Regulations
The regulations may make provision for or with respect to the following matters:(a) the procedures of independent hearing and assessment panels in exercising functions,(b) without limiting paragraph (a), providing that parties are not to be represented (whether by an Australian legal practitioner or any other person) or are only to be represented in specified circumstances,(c) the provision of information or reports by councils with respect to the exercise of functions by independent hearing and assessment panels and any actions taken or not taken by councils in response to panel assessments.pt 2A, div 6 (ss 23I, 23J, 23M–23O): Ins 2008 No 36, Sch 2.1 [13].
Division 6 Matters relating to councils and council functions
pt 2A, div 6 (ss 23I, 23J, 23M–23O): Ins 2008 No 36, Sch 2.1 [13].
23M Obligation to consult with council about certain decisions
The Commission or a regional panel must not exercise a function that will result in the making of a decision that will have, or that might reasonably be expected to have, a significantly adverse financial impact on a council until after it has consulted with the council.
23N Obligations of councils to assist Commission, regional panels and planning arbitrators
(1) The Commission, a regional panel or a planning arbitrator is entitled:(a) to have access to, and to make copies of and take extracts from, records of a council relevant to the exercise of the Commission’s, panel’s or arbitrator’s functions, and(b) to the use of the staff and facilities of a relevant council in order to exercise the Commission’s, panel’s or arbitrator’s functions.(2) The general manager of a council must carry out any reasonable direction of the Commission, a regional panel or a planning arbitrator relating to functions of the council being exercised by the Commission or panel or to a review by the arbitrator of a matter for which the council is the consent authority.Maximum penalty: 10 penalty units.(3) A member of a council, or the general manager or other member of staff of a council, must not obstruct the Commission, a regional panel, a planning arbitrator or a member of the Commission or a panel in the exercise of the Commission’s, panel’s or arbitrator’s functions under this Act.Maximum penalty: 10 penalty units.
23O Recovery of certain costs
(1) A council is to pay to the Director-General out of the council’s consolidated fund:(a) the remuneration, costs and expenses of the Commission in respect of the exercise of any functions of a consent authority involving development on land within the area of the council, and(b) any other costs relating to the provision of services to the Commission by the Department in respect of the exercise of any such functions.(2) The councils for an area or part of an area situated in a part of the State for which a regional panel has been appointed are to pay to the Director-General, out of the councils’ consolidated funds, the remuneration, costs and expenses of the panel and of the Department relating to the costs of administration of the panel.(3) A council is to pay, out of the council’s consolidated fund, the remuneration, costs and expenses of any independent hearing and assessment panel established by the council.(5) The Minister may do either or both of the following:(a) exempt a council from payment of any or all of any such remuneration, costs or expenses,(b) resolve any dispute as to the amount of any such remuneration, costs or expenses.
Part 3 Environmental planning instruments
Division 1 General
24 Making of environmental planning instruments
(1) Without affecting the generality of any other provisions of this Act, an environmental planning instrument may be made in accordance with this Part for the purposes of achieving any of the objects of this Act.(2) Environmental planning instruments may be made:(a) by the Governor under Division 2 (called a State environmental planning policy or SEPP), or(b) by the Minister (or delegate) under Division 4 (called a local environmental plan or LEP).Note—Under transitional arrangements made by Schedule 6, some former instruments (such as regional environmental plans, planning scheme ordinances and interim development orders) continue in force.s 24: Am 2008 No 36, Sch 1.1 [4].
25 (Repealed)
s 25: Rep 2008 No 36, Sch 1.2 [7].
26 Contents of environmental planning instruments
(1) Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following:(a) protecting, improving or utilising, to the best advantage, the environment,(b) controlling (whether by the imposing of development standards or otherwise) development,(c) reserving land for use for the purposes of open space, a public place or public reserve within the meaning of the Local Government Act 1993, a national park or other land reserved or dedicated under the National Parks and Wildlife Act 1974, a public cemetery, a public hospital, a public railway, a public school or any other purpose that is prescribed as a public purpose for the purposes of this section,(d) providing, maintaining and retaining, and regulating any matter relating to, affordable housing,(e) protecting or preserving trees or vegetation,(e1) protecting and conserving native animals and plants, including threatened species, populations and ecological communities, and their habitats,(f) controlling any act, matter or thing for or with respect to which provision may be made under paragraph (a) or (e),(g) controlling advertising,(h) such other matters as are authorised or required to be included in the environmental planning instrument by this or any other Act.(1A) An environmental planning instrument may also make provision for or with respect to protecting and conserving vulnerable ecological communities.(1B) Despite subsection (1A), an environmental planning instrument must not contain any provision that requires a consent authority, before determining a development application relating to development that may affect a vulnerable ecological community:(a) to consult with the Director-General of the Department of Environment, Climate Change and Water or the Minister administering the Threatened Species Conservation Act 1995 about the effect of the development on the vulnerable ecological community, or(b) to obtain the concurrence of the Director-General of the Department of Environment, Climate Change and Water or the Minister administering the Threatened Species Conservation Act 1995 in respect of the development because of its possible effect on the vulnerable ecological community.(2), (3) (Repealed)(3A) An environmental planning instrument may make provision for any zoning of land or other provision to have effect only for a specified period or only in specified circumstances.(4) An environmental planning instrument that makes provision for or with respect to protecting or preserving trees or other vegetation may make provision:(a) for development control plans to specify the species or kinds of trees or other vegetation included in or excluded from the relevant provisions, and(b) for the grant of permission to remove or otherwise affect trees or other vegetation, and for a refusal to grant permission to be treated as a refusal or failure to grant development consent under and for the purposes of Part 4.Note—Section 5C provides that a reference to the Threatened Species Conservation Act 1995, in relation to the critical habitat of fish or marine vegetation, is taken to be a reference to Part 7A of the Fisheries Management Act 1994.s 26: Am 1991 No 22, Sch 1; 1995 No 11, Sch 1.41 [3]; 1995 No 101, Sch 5 [8] [9]; 1996 No 44, Sch 10 [2] (am 1996 No 121, Sch 2.10); 1997 No 152, Sch 1 [15]; 1999 No 72, Sch 1 [3]; 2000 No 29, Sch 1 [1]; 2002 No 78, Sch 2.1 [7] [8]; 2005 No 43, Sch 2 [2]; 2008 No 36, Sch 1.1 [5], 1.2 [8]; 2009 No 106, Sch 2.11 [1].
27 Owner-initiated acquisition of land reserved for public purposes
(1) An environmental planning instrument that reserves land for use exclusively for a purpose referred to in section 26 (1) (c) must specify an authority of the State that will be the relevant authority to acquire the land if the land is required to be acquired under Division 3 of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991.(2) Section 21 of the Land Acquisition (Just Terms Compensation) Act 1991 applies for the purposes of determining whether an environmental planning instrument reserves land for use exclusively for a purpose referred to in section 26 (1) (c).(3) An environmental planning instrument (whenever made) is not to be construed as requiring an authority of the State to acquire land, except as required by Division 3 of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991.(4) Subsection (3) applies despite:(a) any provision of an environmental planning instrument (whenever made) to the contrary, or(b) the service of a notice to acquire the land on an authority of the State on or after the day on which notice was given in Parliament for leave to introduce the Bill for the Environmental Planning and Assessment Amendment (Reserved Land Acquisition) Act 2006.s 27: Am 1997 No 152, Sch 1 [16]. Subst 2006 No 13, Sch 1.
28 Suspension of laws etc by environmental planning instruments
(1) In this section, regulatory instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made.(2) For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument.(3) A provision referred to in subsection (2) shall have effect according to its tenor, but only if the Governor has, before the making of the environmental planning instrument, approved of the provision.(4) Where a Minister is responsible for the administration of a regulatory instrument referred to in subsection (2), the approval of the Governor for the purposes of subsection (3) shall not be recommended except with the prior concurrence in writing of that Minister.(5) A declaration in the environmental planning instrument as to the approval of the Governor as referred to in subsection (3) or the concurrence of a Minister as referred to in subsection (4) shall be prima facie evidence of the approval or concurrence.(6) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.s 28: Am 2009 No 17, Sch 3.7.
29 Designated development: declaration by environmental planning instruments
An environmental planning instrument may contain provisions declaring any class or description of development (whether by reference to the type, purpose or location of development or otherwise) to be designated development for the purposes of this Act.
29A Advertised development
(1) Without limiting the generality of section 26 (1) (b), an environmental planning instrument may identify development, other than designated development, as advertised development.(2) Any such provisions may add to or extend, but not replace or reduce, the provisions of the regulations concerning the notification and advertising of development and the making of submissions relating to advertised development.s 29A: Ins 1997 No 152, Sch 1 [17].
30 Consents and concurrences
(1) Without limiting the generality of section 26 (1) (b), an environmental planning instrument may provide that development specified therein:(a) may be carried out without the necessity for consent under this Act being obtained therefor, or(b) may not be carried out except with consent under this Act being obtained therefor.(2) Where provision is made in accordance with subsection (1) (b), the instrument may provide that a development application in respect of development specified in the instrument shall not be determined by the granting of consent under this Act, except with the concurrence of such Minister or public authority as is specified in the instrument to the carrying out of the development.(3) An environmental planning instrument which makes provision in accordance with subsection (2) shall state the matters which shall be taken into consideration in deciding whether concurrence should be granted.(4), (5) (Repealed)s 30: Am 1986 No 218, Sch 13 (1); 1997 No 152, Sch 1 [18] [19].
31 Prohibitions
Without limiting the generality of section 26 (1) (b), an environmental planning instrument may provide that development specified therein is prohibited.s 31: Am 1997 No 152, Sch 1 [20].
32, 33 (Repealed)
s 32: Rep 2005 No 43, Sch 6 [5].
s 33: Rep 2005 No 43, Sch 2 [3].
33A Standardisation of environmental planning instruments
(1) The Governor may, by order published on the NSW legislation website, prescribe the standard form and content of local environmental plans or other environmental planning instruments (a standard instrument).(2) An environmental planning instrument may be made in the form of:(a) a declaration that the applicable mandatory provisions of a standard instrument are adopted, and(b) the prescription of the matters required to be prescribed for the purposes of the application of the mandatory provisions of the standard instrument (such as the adoption of land zoning or other maps), and(c) the prescription of any other matters permitted to be prescribed by an environmental planning instrument, including non-mandatory provisions of the standard instrument (with or without modification) or additional provisions.(3) When an environmental planning instrument is made with such a declaration, the instrument has the form and content of the applicable mandatory provisions of the standard instrument and the matters so prescribed.(4) If the mandatory provisions of a standard instrument so adopted are amended by a further order under subsection (1) or by an Act after they are adopted, the environmental planning instrument is taken (without further amendment) to adopt the amended provisions of the standard instrument on and from the date the amendment to the standard instrument takes effect.(5) The order that amends a standard instrument may make provision of a savings or transitional nature consequent on the amendment of the standard instrument.(6) Where a standard instrument has been adopted, the provisions of the environmental planning instrument (other than the mandatory provisions of the adopted standard instrument) may be amended from time to time by another environmental planning instrument or in accordance with any Act.(7) A standard instrument may:(a) provide that a provision is a mandatory provision only in the circumstances specified in the instrument, and(b) contain requirements or guidance as to the form or content of a non-mandatory provision.(8) The adoption of the provisions of a standard instrument in an environmental planning instrument is taken to be a matter of State environmental planning significance for the purposes of this Act.(8A) An environmental planning instrument may be made under this Part without compliance with the provisions of this Part relating to the conditions precedent to the making of the instrument if:(a) the instrument adopts the provisions of a standard instrument for the purposes of replacing instruments that apply to the land concerned (being existing instruments that do not adopt the provisions of a standard instrument), and(b) the Minister is of the opinion that the replacement instrument does not make any substantial changes to the general effect of the existing instrument or instruments.(9) Subject to this Act and the regulations, the form and subject-matter of an environmental planning instrument is (if there is no applicable standard instrument) to be as determined by the Minister.(10) In this section:amend includes alter or vary.form includes structure.s 33A: Ins 2005 No 43, Sch 2 [4]. Am 2006 No 43, Sch 2.1 [1]; 2008 No 36, Sch 1.1 [6], 1.2 [9] [10]; 2008 No 62, Sch 2.21.
33B Staged repeal and review of environmental planning instruments
(1) In order to facilitate the staged implementation of standard instruments and the periodic review of existing instruments, the Minister may, by order published on the NSW legislation website, establish a staged repeal program for existing environmental planning instruments.(2) The staged repeal program may include provision for or with respect to the following:(a) the repeal of designated environmental planning instruments at specified times during the period of the program,(b) requirements for the preparation and making of replacement instruments (including the times by which proposals for replacement instruments are to be submitted to the Director-General or the Minister),(c) the postponement of the repeal of particular instruments when the making of a replacement instrument is delayed,(d) the periodic review by a council of environmental planning instruments (other than State environmental planning policies) applying in its area and the submission of reports of each review to the Director-General.(3) At the time specified by the staged repeal program for the repeal of a designated environmental planning instrument, the instrument is repealed by the operation of this section.(4) The Minister may, under Division 4, make a local environmental plan to take effect on the repeal of an instrument under this section pending the making of a replacement instrument in accordance with this Act. Any such plan made by the Minister is to adopt the mandatory provisions of a standard instrument (with the prescriptions the Minister considers necessary in the particular circumstances).(5) For the purposes of subsection (4):(a) a local environmental plan made pursuant to that subsection is not required to comply with the conditions precedent in Division 4 for the making of an environmental planning instrument, and(b) (Repealed)(c) the council is to provide the Minister, when requested, with copies of any maps or other relevant documents prepared or held by the council.The Minister may direct the council to pay to the Director-General such amount as the Director-General determines will meet the reasonable costs incurred on behalf of the Minister by the Department for the purposes of making the plan under subsection (4).Note—See section 118 (1A) in relation to the power to appoint an administrator to exercise plan-making functions when a council fails to comply with the requirements of the staged repeal program for the preparation or making of a replacement instrument.s 33B: Ins 2005 No 43, Sch 2 [4]. Am 2006 No 43, Sch 2.1 [2]; 2008 No 36, Sch 1.2 [11]–[16]; 2009 No 106, Sch 2.11 [3].
33C Public access to environmental planning instruments and related documents
For the purpose of facilitating electronic or other public access to environmental planning instruments and any development control plans, contributions plans or other documents under this Act:(a) the Minister may determine standard technical requirements with respect to the preparation of those instruments, plans or other documents and of the maps or other documents that are referred to in (or adopted under) them, and(b) a council is to provide the Director-General, when requested, with copies and electronic files (in a specified format) of any such instruments, plans, maps or other documents prepared or held by the council.s 33C: Ins 2005 No 43, Sch 2 [4].
34 Environmental planning instruments—making, operation and inspection
(1)–(4) (Repealed)(5) An environmental planning instrument shall:(a) be published on the NSW legislation website, and(b) commence on and from the date of publication or a later date specified in the instrument.(5A) Subsection (5) does not prevent an environmental planning instrument from specifying different days for the commencement of different provisions of the instrument.(5B) Neither the whole nor any part of an environmental planning instrument is invalid merely because the instrument is published on the NSW legislation website after the day on which one or more of its provisions is expressed to commence. In that case, the provisions concerned commence on and from the day the instrument is published on the NSW legislation website, instead of on and from the earlier day.(6) A copy of every environmental planning instrument shall be available for public inspection, without charge, at the office of the Department during ordinary office hours.(7) The Director-General shall furnish each council affected by an environmental planning instrument with a copy of the instrument as soon as practicable after it is made.(8) A copy of each environmental planning instrument that has been furnished to a council by the Director-General shall be available for public inspection, without charge, at:(a) the office of the council during ordinary office hours, and(b) such other premises operated or controlled by the council and at such times as may be prescribed.(9) An environmental planning instrument shall be deemed to have been published on the NSW legislation website notwithstanding that any planning map or other instrument or material referred to, embodied or incorporated in the environmental planning instrument is not so published.(10) A reference in subsections (6), (7) and (8) to a copy of an environmental planning instrument includes a reference to any planning map or other prescribed instrument or material referred to, embodied or incorporated in the instrument.Note—An environmental planning instrument is an instrument for the purposes of the Interpretation Act 1987, and accordingly standard provisions under that Act applying to statutory instruments apply to environmental planning instruments.s 34: Am 1997 No 152, Sch 1 [13]; 2003 No 40, Sch 1.13 [1]; 2005 No 43, Sch 6 [6] [7]; 2006 No 43, Sch 2.1 [3]; 2009 No 56, Sch 2.15.
34A Special consultation procedures concerning threatened species
(1) In this section, the means:(a) in the case of a proposed SEPP—the Director-General, or(b) in the case of a proposed LEP—the relevant planning authority.(2) Before an environmental planning instrument is made, the relevant authority must consult with the Director-General of the Department of Environment, Climate Change and Water if, in the opinion of the relevant authority, critical habitat or threatened species, populations or ecological communities, or their habitats, will or may be adversely affected by the proposed instrument.(3) For the purposes of the consultation, the relevant authority is to provide such information about the proposed instrument as would assist in understanding its effect (including information of the kind prescribed by the regulations).(4) The consultation in relation to a proposed local environmental plan is to commence after a decision under section 56 (Gateway determination) that the matter should proceed, unless the regulations otherwise provide.(5) The Director-General of the Department of Environment, Climate Change and Water may comment to the relevant authority on the proposed instrument within the following period after the consultation commences:(a) the period agreed between that Director-General and the relevant authority,(b) in the absence of any such agreement, the period of 21 days or such other period as is prescribed by the regulations.(6) The consultation required by this section is completed when the relevant authority has considered any comments so made.(7) In this section, a reference to the Director-General of the Department of Environment, Climate Change and Water includes, in the application of this section to fish and marine vegetation, a reference to the Director-General of the Department of Industry and Investment.s 34A: Ins 1995 No 101, Sch 5 [10]. Am 2000 No 93, Sch 1.8 [6]–[8]; 2002 No 78, Sch 2.1 [9]. Subst 2008 No 36, Sch 1.1 [7]. Am 2009 No 106, Sch 2.11 [4] [5].
34B Special provision for development in Sydney water catchment relating to water quality
(1) In this section, Sydney drinking water catchment means a catchment area of the State to which the Sydney Water Catchment Management Act 1998 applies that is declared by a State Environmental Planning Policy to be the Sydney drinking water catchment.(2) Provision is to be made in a State Environmental Planning Policy requiring a consent authority to refuse to grant consent to a development application relating to any part of the Sydney drinking water catchment unless the consent authority is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on the quality of water.(3) Pending a declaration under subsection (1), the hydrological catchment (within the meaning of the Drinking Water Catchments Regional Environmental Plan No 1, as in force on that commencement) is taken to be the Sydney drinking water catchment.Note—Schedule 6 provides that regional environmental plans are taken to be SEPPs as a consequence of the repeal of provisions of this Act relating to the making of regional environmental plans.(4) The Minister is not to recommend the making of a State Environmental Planning Policy that relates to the declaration of the Sydney drinking water catchment unless:(a) the Minister administering the Sydney Water Catchment Management Act 1998 approves of the declaration, and(b) the Minister administering the Protection of the Environment Operations Act 1997 has been consulted about the declaration.s 34B: Ins 2008 No 36, Sch 1.1 [8]. Am 2009 No 106, Sch 1.6 [1].
35 Validity of instruments
The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication on the NSW legislation website.s 35: Subst 1985 No 228, Sch 7 (1). Am 2006 No 43, Sch 2.1 [4].
36 Inconsistency between instruments
(1) In the event of an inconsistency between environmental planning instruments and unless otherwise provided:(a) there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy, and(b) (Repealed)(c) the general presumptions of the law as to when an Act prevails over another Act apply to when one kind of environmental planning instrument prevails over another environmental planning instrument of the same kind.(2), (3) (Repealed)(4) Nothing in this section prevents an environmental planning instrument from being expressly amended by a later environmental planning instrument, of the same or a different kind, to provide for the way in which an inconsistency between them is to be resolved.s 36: Subst 1996 No 44, Sch 3. Am 2005 No 43, Sch 2 [5]; 2008 No 36, Sch 1.2 [17].
Division 2 SEPPs
pt 3, div 2: Subst 2008 No 36, Sch 1.1 [9].
37 Governor may make environmental planning instruments (SEPPs)
(1) The Governor may make environmental planning instruments for the purpose of environmental planning by the State. Any such instrument may be called a State environmental planning policy (or SEPP).(2) Without limiting subsection (1), an environmental planning instrument may be made by the Governor to make provision with respect to any matter that, in the opinion of the Minister, is of State or regional environmental planning significance.s 37: Subst 2008 No 36, Sch 1.1 [9].
38 Consultation requirements
Before recommending the making of an environmental planning instrument by the Governor, the Minister is to take such steps, if any, as the Minister considers appropriate or necessary:(a) to publicise an explanation of the intended effect of the proposed instrument, and(b) to seek and consider submissions from the public on the matter.Note—See also section 34A.s 38: Rep 2005 No 43, Sch 2 [6]. Ins 2008 No 36, Sch 1.1 [9].
39 (Repealed)
s 39: Am 1985 No 228, Sch 3 (1). Rep 2008 No 36, Sch 1.1 [9].
Division 3
40–52 (Repealed)
pt 3, div 3: Rep 2008 No 36, Sch 1.1 [10].
s 40: Am 1985 No 228, Sch 3 (2) (3). Rep 2008 No 36, Sch 1.1 [10].
s 41: Am 1985 No 228, Sch 3 (3); 1996 No 44, Sch 2 [1]. Rep 2008 No 36, Sch 1.1 [10].
s 42: Rep 1985 No 228, Sch 3 (4).
s 43: Rep 1985 No 228, Sch 3 (4).
s 44: Am 1985 No 228, Sch 3 (5). Rep 2008 No 36, Sch 1.1 [10].
s 45: Am 1985 No 228, Sch 3 (6); 1992 No 90, Sch 1; 1994 No 29, Sch 1 (1). Subst 1996 No 44, Sch 2 [2]. Am 2005 No 43, Sch 6 [8]. Rep 2008 No 36, Sch 1.1 [10].
s 46: Rep 2008 No 36, Sch 1.1 [10].
s 47: Am 1985 No 228, Sch 3 (7); 1997 No 152, Sch 1 [13]. Rep 2008 No 36, Sch 1.1 [10].
s 48: Am 1997 No 152, Sch 1 [13]. Rep 2008 No 36, Sch 1.1 [10].
s 49: Am 1996 No 44, Sch 1 [1] [2]; 1997 No 152, Sch 1 [13]. Rep 2008 No 36, Sch 1.1 [10].
s 50: Am 1999 No 72, Sch 5 [3]; 2001 No 56, Sch 1.3 [1]. Rep 2008 No 36, Sch 1.1 [10].
s 51: Am 1996 No 44, Sch 1 [3]. Rep 2008 No 36, Sch 1.1 [10].
s 51A: Ins 1992 No 90, Sch 1. Rep 2005 No 43, Sch 2 [7].
s 52: Rep 2005 No 43, Sch 2 [8].
Division 4 LEPs
pt 3, div 4: Subst 2008 No 36, Sch 1.1 [11].
53 Minister may make environmental planning instruments for local areas (LEPs)
(1) The Minister may make environmental planning instruments for the purpose of environmental planning:(a) in each local government area, and(b) in such other areas of the State (including the coastal waters of the State) as the Minister determines.(2) Any such instrument may be called a local environmental plan (or LEP).s 53: Subst 2008 No 36, Sch 1.1 [11]. Am 2009 No 106, Sch 1.6 [2].
54 Relevant planning authority
(1) For the purposes of this Part, the in respect of a proposed instrument is as follows:(a) the council for the local government area to which the proposed instrument is to apply, subject to paragraph (b),(b) the Director-General or any other person or body prescribed by the regulations if the Minister so directs under subsection (2).(2) The Minister may direct that the Director-General (or any other person or body prescribed by the regulations) is the relevant planning authority for a proposed instrument in the following cases:(a) the proposed instrument relates to a matter that, in the opinion of the Minister, is of State or regional environmental planning significance,(b) the proposed instrument makes provision that, in the opinion of the Minister, is consequential on the approval of the concept plan for a project under Part 3A, is consequential on the making of another environmental planning or other instrument or is consequential on changes made to a standard instrument under section 33A,(c) the Planning Assessment Commission or a joint regional planning panel has recommended to the Minister that the proposed instrument should be made,(d) the council for the local government area concerned has, in the opinion of the Minister, failed to comply with its obligations with respect to the making of the proposed instrument or has not carried out those obligations in a satisfactory manner,(e) the proposed instrument is to apply to an area that is not within a local government area (subject to subsection (6)).(3) A relevant planning authority that is requested by the owner of any land to exercise its functions under this Division in relation to the land may, as a condition of doing so, require the owner to carry out studies or provide other information concerning the proposal or to pay the costs of the authority in accordance with the regulations.(4) The Minister may, in a direction under this section, require a council to provide studies or other information in its possession relating to the proposed instrument to be provided to the person or body specified in the direction as the relevant planning authority for the proposed instrument.(5) Two or more relevant local authorities may together exercise the functions under this Division of a relevant planning authority in connection with the making of a single principal or amending instrument in relation to the whole of their combined areas.(6) A reference in this section to a local government area includes a reference to an adjoining area that is not within a local government area and that is designated as part of that local government area for the purposes of this Division by the Minister by order published in the Gazette.Note—Section 117 enables directions to be given to councils or other relevant planning authorities on the exercise of functions under this Division in relation to the making of an instrument.s 54: Am 1985 No 228, Sch 3 (8); 1994 No 44, Sch 19; 1997 No 152, Sch 1 [13]. Subst 2008 No 36, Sch 1.1 [11].
55 Relevant planning authority to prepare explanation of and justification for proposed instrument—the planning proposal
(1) Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal).(2) The planning proposal is to include the following:(a) a statement of the objectives or intended outcomes of the proposed instrument,(b) an explanation of the provisions that are to be included in the proposed instrument,(c) the justification for those objectives, outcomes and provisions and the process for their implementation (including whether the proposed instrument will comply with relevant directions under section 117),(d) if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land—a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument,(e) details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument.(3) The Director-General may issue requirements with respect to the preparation of a planning proposal.s 55: Subst 2008 No 36, Sch 1.1 [11].
56 Gateway determination
(1) After preparing a planning proposal, the relevant planning authority may forward it to the Minister.(2) After a review of the planning proposal, the Minister is to determine the following:(a) whether the matter should proceed (with or without variation),(b) whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal),(c) community consultation required before consideration is given to the making of the proposed instrument (the community consultation requirements),(d) any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument,(e) whether a public hearing is to be held into the matter by the Planning Assessment Commission or other specified person or body,(f) the times within which the various stages of the procedure for the making of the proposed instrument are to be completed.(3) A determination of the community consultation requirements includes a determination under section 73A (or other provision of this Act) that the matter does not require community consultation.(4) The regulations may provide for the categorisation of planning proposals for the purposes of this section, and may prescribe standard community consultation requirements for each such category.(5) The Minister may arrange for the review of a planning proposal (or part of a planning proposal) under this section to be conducted by, or with the assistance of, the Planning Assessment Commission or a joint regional planning panel:(a) if there has been any delay in the matter being finalised, or(b) if for any other reason the Minister considers it appropriate to do so.(6) The relevant planning authority may, at any time, forward a revised planning proposal to the Minister.(7) The Minister may, at any time, alter a determination made under this section.(8) A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under section 57, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that section.s 56: Rep 1994 No 44, Sch 19. Ins 2008 No 36, Sch 1.1 [11].
57 Community consultation
(1) Before consideration is given to the making of a local environmental plan, the relevant planning authority must consult the community in accordance with the community consultation requirements for the proposed instrument.(2) The planning proposal (as revised to comply with the determination under section 56 and in a form approved by the Director-General) is to be made publicly available during the period of community consultation. Detailed provisions may be summarised instead of being set out in full if the Director-General is satisfied that the summary provides sufficient details for community consultation.(3) During the period of community consultation, any person may make a written submission to the relevant planning authority concerning the matter (other than any matter that is mandatory under an applicable standard instrument under section 33A).(4) The relevant planning authority may (but need not) make publicly available, in accordance with the community consultation requirements, the submissions made concerning a matter (or a summary of or report on any such submissions).(5) If:(a) a person making a submission so requests, andthe relevant planning authority is to arrange a public hearing on the issues raised in the submission.(b) the relevant planning authority considers that the issues raised in a submission are of such significance that they should be the subject of a hearing,(6) The relevant planning authority may arrange a public hearing on any issue whether or not a person has made a submission concerning the matter.(7) A report of any public hearing is to be furnished to the relevant planning authority and may be made publicly available by that authority.(8) The consultation required by this section is completed when the relevant planning authority has considered any submissions made concerning the proposed instrument and the report of any public hearing.s 57: Am 1985 No 228, Sch 3 (9). Subst 2008 No 36, Sch 1.1 [11].
58 Relevant planning authority may vary proposals or not proceed
(1) The relevant planning authority may, at any time, vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason.(2) If it does so, the relevant planning authority is to forward a revised planning proposal to the Minister.(3) Further community consultation under section 57 is not required unless the Minister so directs in a revised determination under section 56.(4) The relevant planning authority may also, at any time, request the Minister to determine that the matter not proceed.s 58: Rep 1985 No 228, Sch 3 (10). Ins 2008 No 36, Sch 1.1 [11].
59 Making of local environmental plan by Minister
(1) The Director-General is to make arrangements for the drafting of any required local environmental plan to give effect to the final proposals of the relevant planning authority. The Director-General is to consult the relevant planning authority, in accordance with the regulations, on the terms of any such draft instrument.(2) The Minister may, following completion of community consultation:(a) make a local environmental plan (with or without variation of the proposals submitted by the relevant planning authority) in the terms the Minister considers appropriate, or(b) decide not to make the proposed local environmental plan.(3) The Minister may defer the inclusion of a matter in a proposed local environmental plan.(4) If the Minister does not make the proposed local environmental plan or defers the inclusion of a matter in a proposed local environmental plan, the Minister may specify which procedures under this Division the relevant planning authority must comply with before the matter is resubmitted to the Minister.s 59: Rep 1985 No 228, Sch 3 (10). Ins 2008 No 36, Sch 1.1 [11]. Am 2009 No 106, Sch 1.6 [3] [4].
60 Regulations
The regulations may make further provision with respect to the making of environmental planning instruments under this Division, including:(a) requirements with respect to consultation about proposed instruments by a relevant planning authority with particular persons or bodies, and(b) requirements with respect to planning proposals and the submission of other related reports and documents, and(c) requirements with respect to advertising in connection with community consultation on proposed instruments, and(d) provisions relating to consultation by the Director-General with relevant planning authorities and others on the drafting of proposed instruments, and(e) requirements for concurrence of public authorities in relation to the reservation of land for a purpose referred to in section 26 (1) (c).Note—The Interpretation Act 1987 applies to environmental planning instruments.s 60: Rep 1985 No 228, Sch 3 (10). Ins 2008 No 36, Sch 1.1 [11].
61–72 (Repealed)
s 61: Subst 1985 No 228, Sch 3 (11). Rep 2008 No 36, Sch 1.1 [11].
s 62: Rep 2008 No 36, Sch 1.1 [11].
s 63: Rep 2008 No 36, Sch 1.1 [11].
s 64: Subst 1985 No 228, Sch 3 (12). Am 1997 No 152, Sch 1 [13]. Rep 2008 No 36, Sch 1.1 [11].
s 65: Am 1985 No 228, Sch 3 (13); 1997 No 152, Sch 1 [13]; 2005 No 43, Sch 2 [9]. Rep 2008 No 36, Sch 1.1 [11].
s 66: Am 1985 No 228, Sch 3 (14); 2005 No 43, Sch 2 [10]. Rep 2008 No 36, Sch 1.1 [11].
s 67: Rep 2008 No 36, Sch 1.1 [11].
s 68: Am 1985 No 228, Sch 3 (15); 1992 No 90, Sch 1; 1997 No 152, Sch 1 [13]; 1999 No 72, Sch 5 [4]; 2005 No 43, Sch 2 [11]. Rep 2008 No 36, Sch 1.1 [11].
s 69: Am 2005 No 43, Sch 2 [12]. Rep 2008 No 36, Sch 1.1 [11].
s 70: Am 1985 No 228, Sch 3 (16); 1996 No 44, Sch 1 [4] [5]; 1999 No 72, Sch 5 [5]; 2001 No 56, Sch 1.3 [1]. Rep 2008 No 36, Sch 1.1 [11].
s 71: Rep 2005 No 43, Sch 2 [13].
s 72: Am 1985 No 228, Sch 3 (17); 1992 No 90, Sch 1; 1997 No 152, Sch 1 [21]; 1999 No 72, Sch 3 [1]; 2002 No 76, Sch 2 [1]; 2003 No 40, Sch 1.13 [2]. Rep 2005 No 43, Sch 2 [14].
Division 4A
72A–72H (Repealed)
pt 3, div 4A: Ins 1989 No 32, Sch 1 (1). Rep 2008 No 36, Sch 1.1 [11].
s 72A: Ins 1989 No 32, Sch 1 (1). Am 1997 No 152, Sch 1 [22] [23]; 2005 No 43, Sch 1 [6]. Rep 2008 No 36, Sch 1.1 [11].
s 72B: Ins 1989 No 32, Sch 1 (1). Am 1997 No 152, Sch 1 [24]–[27]. Rep 2008 No 36, Sch 1.1 [11].
s 72C: Ins 1989 No 32, Sch 1 (1). Am 2006 No 43, Sch 2.1 [5]. Rep 2008 No 36, Sch 1.1 [11].
s 72D: Ins 1989 No 32, Sch 1 (1). Am 1997 No 152, Sch 1 [28] [29]. Rep 2008 No 36, Sch 1.1 [11].
s 72E: Ins 1989 No 32, Sch 1 (1). Rep 2008 No 36, Sch 1.1 [11].
s 72F: Ins 1989 No 32, Sch 1 (1). Am 2006 No 43, Sch 2.1 [6]. Rep 2008 No 36, Sch 1.1 [11].
s 72G: Ins 1989 No 32, Sch 1 (1). Am 1997 No 152, Sch 1 [30] [31]; 2006 No 43, Sch 2.1 [7]. Rep 2008 No 36, Sch 1.1 [11].
s 72H: Ins 1989 No 32, Sch 1 (1). Rep 2008 No 36, Sch 1.1 [11].
Division 4B Instrument amendments and development applications
pt 3, div 4B: Ins 1996 No 44, Sch 6.
72I Application of Division
(1) This Division applies if a development application is made to a consent authority for consent to carry out development that may only be carried out if an environmental planning instrument applying to the land on which the development is proposed to be carried out is appropriately amended.(2) This Division also applies in respect of applications and approvals under Part 3A, and references to a development application, a consent authority or a consent are to be construed accordingly.(3) A reference in this Division to the appropriate amendment of an environmental planning instrument includes a reference to the making of an appropriate principal environmental planning instrument.s 72I: Ins 1996 No 44, Sch 6. Am 2005 No 43, Sch 1 [7]; 2009 No 56, Sch 1.13 [1].
72J Making and consideration of certain development applications
Nothing in this Act prevents:(a) the making of a development application to a consent authority for consent to carry out development that may only be carried out if an environmental planning instrument applying to the land on which the development is proposed to be carried out is appropriately amended, orsubject to this Division.(b) the consideration by a consent authority of such a development application,s 72J: Ins 1996 No 44, Sch 6.
72K Joint exhibition of instrument and advertising of application
(1) Public notice that is required to be given under this Act in connection with the making of a proposed environmental planning instrument and notice that is required to be given under this Act of a development application in circumstances where this Division applies are to be given by the same notice if that is practicable or, if that is not practicable, as closely together as is practicable.(2) The period during which the public may inspect the documents relating to the proposed environmental planning instrument and the development application the subject of the same notice, if those periods are different, is to be the longer of them.(3) If the proposed environmental planning instrument makes the development the subject of the development application designated development, the period for public inspection of the development application that is to be relevant in determining the period for public inspection under subsection (2) is the period relevant to the inspection of a development application for designated development.s 72K: Ins 1996 No 44, Sch 6. Am 2008 No 36, Sch 1.2 [18]–[20]; 2009 No 56, Sch 1.13 [2] [3].
72L (Repealed)
s 72L: Ins 1996 No 44, Sch 6. Rep 2008 No 36, Sch 1.2 [21].
Division 5 Review and amendment of environmental planning instruments
73 Review of environmental planning instruments
The Director-General shall keep State environmental planning policies and councils shall keep their local environmental plans and development control plans under regular and periodic review for the purpose of ensuring that the objects of this Act are, having regard to such changing circumstances as may be relevant, achieved to the maximum extent possible.s 73: Am 2008 No 36, Sch 1.2 [22].
73A Expedited amendments of environmental planning instruments
(1) An amending environmental planning instrument may be made under this Part without compliance with the provisions of this Part relating to the conditions precedent to the making of the instrument if the instrument, if made, would amend or repeal a provision of a principal instrument in order to do any one or more of the following:(a) correct an obvious error in the principal instrument consisting of a misdescription, the inconsistent numbering of provisions, a wrong cross-reference, a spelling error, a grammatical mistake, the insertion of obviously missing words, the removal of obviously unnecessary words or a formatting error,(b) address matters in the principal instrument that are of a consequential, transitional, machinery or other minor nature,(c) deal with matters that the Minister considers do not warrant compliance with the conditions precedent for the making of the instrument because they will not have any significant adverse impact on the environment or adjoining land.(2) A reference in this section to an amendment of an instrument includes a reference to the amendment or replacement of a map adopted by an instrument.s 73A: Ins 2005 No 43, Sch 2 [15]. Am 2008 No 36, Sch 1.1 [12] [13].
74 Amendment of environmental planning instruments
(1) An environmental planning instrument may be amended in whole or in part by a subsequent environmental planning instrument whether of the same or a different type.(2) (Repealed)(3) In this section, amended includes altered, varied or repealed.s 74: Am 1985 No 228, Sch 3 (18); 2008 No 36, Sch 1.2 [23].
74A Application of Division
This Division is subject to sections 33A and 33B.s 74A: Ins 2005 No 43, Sch 2 [16].
Division 6 Development control plans
pt 3, div 6: Ins 2005 No 43, Sch 2 [17].
74B Definition (DCPs)
(1) In this Division:, in relation to any matter, means the council of the area to which the matter relates or the Director-General. However, the council is not the relevant planning authority in relation to a SEPP and the Director-General is not the relevant planning authority in relation to a LEP for which a council is the relevant planning authority under Division 4.(2) A reference in this Division to an environmental planning instrument includes a reference to any such proposed instrument.s 74B: Ins 2005 No 43, Sch 2 [17]. Am 2008 No 36, Sch 1.1 [14], 1.2 [24].
74C Preparation of development control plans
(1) The relevant planning authority may prepare a development control plan (or cause such a plan to be prepared) if it considers it necessary or desirable:(a) to make more detailed provision with respect to development to achieve the purpose of an environmental planning instrument applying to the land concerned, or(b) to identify development as advertised development (so as to make additional but not inconsistent requirements to those imposed by the regulations in relation to development applications), or(c) to provide for (or exclude) public or particular advertising or notification of any of the following:(i) a development application for specified development (other than designated development or advertised development),(ii) a request for the review of a determination of a development application where the applicant for review makes amendments to the development described in the original development application,(iii) an application for the modification of a development consent for specified development (including advertised development but not designated development), or(iv) (Repealed)(d) in the case of a council—to specify criteria (in addition to but not inconsistent with any criteria prescribed by the regulations) that the council is to take into consideration in determining whether or not to give an order under Division 2A of Part 6, or(e) to make provision for anything permitted by this Act to be prescribed by a development control plan.Note—See for example section 26 (4) (a).(2) Only one development control plan made by the same relevant planning authority may apply in respect of the same land. This subsection does not apply to:(a) a plan prepared for the purposes of subsection (1) (d) or for any other purpose prescribed by the regulations, or(b) a plan prepared for the purpose of amending an existing plan.If this subsection is not complied with, all the development control plans concerned have no effect.Note—A planning authority may prepare one development control plan for the whole of its area or one plan for each precinct or locality in its area, or prepare one plan for a site (and exclude that site from the area to which other plans apply).(3) A development control plan may adopt by reference the provisions of another development control plan.(4) A development control plan may amend, substitute or revoke another development control plan.(5) A provision of a development control plan (whenever made) has no effect to the extent that:(a) it is the same or substantially the same as the provision of an environmental planning instrument applying to the same land, or(b) it is inconsistent with a provision of any such instrument or its application prevents compliance with a provision of any such instrument.s 74C: Ins 2005 No 43, Sch 2 [17]. Am 2008 No 36, Sch 1.1 [15].
74D Development control plans required or authorised by environmental planning instruments
(1) An environmental planning instrument may require or permit a development control plan to be prepared before any particular development or kind of development may be carried out (and make provision with respect to the preparation and content of any such plan).(2) Any such development control plan may outline the development of all the land to which it applies.(3) Any such development control plan may be prepared (and submitted to the relevant planning authority) by the owners of the land to which it applies or by such percentage of those owners as the environmental planning instrument concerned allows. A person authorised by those owners may act on their behalf for the purposes of this subsection.(4) The relevant planning authority may make a development control plan submitted to it under this section, including with such changes as it thinks fit.(5) If the relevant planning authority refuses to make a development control plan submitted to it under this section (or delays by more than 60 days to make a decision on whether to make the plan):(a) the owners may make a development application despite the requirement of the environmental planning instrument concerned for the preparation of a development control plan, or(b) the Minister may act in the place of the relevant planning authority to make the plan (with or without modification), but only if the environmental planning instrument concerned authorises the Minister to do so.(6) The regulations may extend the period of 60 days referred to in subsection (5) in connection with any failure by the owners to provide further information required by the relevant planning authority for the purposes of making the plan.Note—Section 75M provides that a concept plan may be submitted for a project to which Part 3A applies as an alternative to a development control plan required by an environmental planning instrument. Section 83C provides that a staged development application may be made for development requiring consent under Part 4 as an alternative to a development control plan required by an environmental planning instrument.s 74D: Ins 2005 No 43, Sch 2 [17].
74E Miscellaneous provisions relating to development control plans
(1) The regulations may make provision for or with respect to development control plans, including:(a) the form, structure and subject-matter of development control plans, and(b) the procedures for the preparation, public exhibition, making, amendment and repeal of development control plans, and(c) the fees payable to the relevant planning authority by owners submitting draft development control plans under section 74D.(2) The staged repeal program under section 33B may be extended to development control plans, and for that purpose a reference in that section to an environmental planning instrument is taken to include a reference to a development control plan.(3) An environmental planning instrument may exclude or modify the application of development control plans in respect of land to which the instrument applies (whether the plan was prepared before or after the making of the instrument).(4) A development control plan must be available for public inspection (without charge):(a) at the principal office of the relevant planning authority that prepared the plan, and(b) in such other manner as is prescribed by the regulations.s 74E: Ins 2005 No 43, Sch 2 [17].
74F Minister may direct councils with respect to development control plans
(1) The Minister may, subject to the regulations (if any), direct a council to make, amend or revoke a development control plan in the time and manner specified in the direction.(2) A council to which a direction is given under this section must comply with the direction in accordance with its terms.(3) If a council fails to comply with a direction of the Minister under this section, the Minister may make, amend or revoke the development control plan as if the Minister were the council.(4) A development control plan made, amended or revoked by the Minister under this section has effect, or ceases to have effect as the case may be, as if it were made, amended or revoked by the council.(5) The Minister in making, amending or revoking a development control plan under this section is not subject to the regulations.(6) Section 74C (2) does not apply to development control plan made by or at the direction of the Minister under this section.s 74F: Ins 2006 No 8, Sch 2 [1].
Part 3A Major infrastructure and other projects
pt 3A: Ins 2005 No 43, Sch 1 [1].
Division 1 Preliminary
pt 3A, div 1: Ins 2005 No 43, Sch 1 [1].
75A Definitions
In this Part:approved project means a project to the extent that it is approved by the Minister under this Part, but does not include a project for which only approval for a concept plan has been given.critical infrastructure project means a project that is a critical infrastructure project, as referred to in section 75C.development includes an activity within the meaning of Part 5.major infrastructure development includes development, whether or not carried out by a public authority, for the purposes of roads, railways, pipelines, electricity generation, electricity or gas transmission or distribution, sewerage treatment facilities, dams or water reticulation works, desalination plants, trading ports or other public utility undertakings.project means development that is declared under section 75B to be a project to which this Part applies.proponent of a project, means the person proposing to carry out development comprising all or any part of the project, and includes any person certified by the Minister to be the proponent.s 75A: Ins 2005 No 43, Sch 1 [1].
75B Projects to which Part applies
(1) General This Part applies to the carrying out of development that is declared under this section to be a project to which this Part applies:(a) by a State environmental planning policy, or(b) by order of the Minister published in the Gazette (including by an order that amends such a policy).The carrying out of particular or a class of development, or development for a program or plan of works or activities, may be so declared.(2) Kinds of projects The following kind of development may be declared to be a project to which this Part applies:(a) major infrastructure or other development that, in the opinion of the Minister, is of State or regional environmental planning significance,(b) major infrastructure or other development that is an activity for which the proponent is also the determining authority (within the meaning of Part 5) and that, in the opinion of the proponent, would (but for this Part) require an environmental impact statement to be obtained under that Part.(3) Related development If only part of any development is a project to which this Part applies, the other parts of the development are (subject to subsection (4)) taken to be a project to which this Part applies. The development is to be dealt with under this Part as a single project.(4) Limiting declared development The declaration of a project may be limited to an aspect of development (such as the construction of a project), to a particular period of carrying out development or otherwise.(5) Amendment or revocation of declaration The declaration of a project may be amended or revoked at any time (including before or after an approval for the project is given under this Part).Editorial note—For orders under this section see Gazettes No 96 of 29.7.2005, p 4054 (see also No 135 of 10.11.2006, p 9535); No 52 of 13.4.2006, p 2223; No 58 of 28.4.2006, p 2468 (revoked GG No 122 of 6.10.2006, p 8671); No 76 of 9.6.2006, p 4352; No 82 of 23.6.2006, p 4704; No 93 of 21.7.2006, p 5798; No 114 of 8.9.2006, p 7933; No 117 of 15.9.2006, p 8077 (revoked GG No 66 of 11.5.2007, p 2675); No 123 of 13.10.2006, p 8749; No 127 of 27.10.2006, p 8995; No 139 of 17.11.2006, p 9781; No 175 of 8.12.2006, p 10507; No 186 of 15.12.2006, p 11525; No 1 of 5.1.2007, p 5; No 35 of 1.3.2007, p 1173; No 83 of 29.6.2007, pp 4241, 4242; No 87 of 6.7.2007, p 4412; No 139 of 5.10.2007, p 7657; No 156 of 26.10.2007, pp 8122–8124 (see also No 9 of 18.1.2008, p 100); No 167 of 9.11.2007, p 8368; No 169 of 16.11.2007, p 8521; No 175 of 30.11.2007, p 8726; No 182 of 14.12.2007, p 9632; No 185 of 21.12.2007, p 10002; No 4 of 11.1.2008, p 39; No 12 of 1.2.2008, p 446; No 21 of 22.2.2008, p 1168; No 37 of 28.3.2008, p 2530; No 60 of 26.5.2008, p 4017; No 88 of 18.7.2008, p 7245; No 20 of 23.1.2009, p 420; No 29 of 6.2.2009, p 605; No 30 of 6.2.2009, p 935; No 44 of 27.2.2009, p 1262; No 50 of 6.3.2009, p 1318; No 51 of 13.3.2009, p 1375; No 103 of 10.7.2009, p 4068; No 146 of 16.10.2009, p 5426; No 156 of 30.10.2009, p 5536; No 40 of 12.3.2010, pp 1283, 1284 and No 84 of 25.6.2010, p 2931.s 75B: Ins 2005 No 43, Sch 1 [1]. Am 2006 No 123, Sch 1 [2]–[4].
75C Critical infrastructure projects
(1) Any development that is declared to be a project to which this Part applies may also be declared to be a critical infrastructure project if it is of a category that, in the opinion of the Minister, is essential for the State for economic, environmental or social reasons.(2) Section 75B applies to a declaration under this section in the same way as it applies to a declaration under that section. The declaration of a critical infrastructure project under this section may (but need not) be made at the same time or by the same method as the declaration under section 75B relating to the project.Note—In the case of a critical infrastructure project, this Part contains the following additional provisions:(a) sections 75K, 75L and 75Q exclude proponent or objector appeals in respect of the determination of an application for approval of the project,(b) section 75R excludes with respect to the project all environmental planning instruments (other than SEPPs that specifically relate to the project) and council orders under Division 2A of Part 6,(c) section 75T excludes third-party appeals against the project under this Act or other environment protection legislation.Guidelines with respect to environmental assessment of the project under section 75F can be tailored to the circumstances of the case.Editorial note—For declarations gazetted under this section see Gazettes No 175 of 8.12.2006, pp 10509, 10511; No 1 of 5.1.2007, p 4; No 24 of 27.2.2008, p 1247; No 48 of 2.5.2008, p 2996; No 44 of 27.2.2009, p 1262; No 51 of 13.3.2009, pp 1374, 1375; No 75 of 22.5.2009, p 2305; No 103 of 10.7.2009, p 4068; No 184 of 27.11.2009, p 5841; No 40 of 12.3.2010, pp 1283, 1285 and No 63 of 14.5.2010, p 2153.s 75C: Ins 2005 No 43, Sch 1 [1]. Am 2006 No 123, Sch 1 [5].
Division 2 Environmental assessment and approval of projects
pt 3A, div 2: Ins 2005 No 43, Sch 1 [1].
75D Minister’s approval required for projects
(1) A person is not to carry out development that is a project to which this Part applies unless the Minister has approved of the carrying out of the project under this Part.(2) The person is to comply with any conditions to which such an approval is subject.ss 75D–75F: Ins 2005 No 43, Sch 1 [1].
75E Application for approval of project
(1) The proponent may apply for the approval of the Minister under this Part to carry out a project.(2) The application is to:(a) describe the project, and(b) contain any other matter required by the Director-General.(3) The application is to be lodged with the Director-General.(4) An application may relate to part only of a project.ss 75D–75F: Ins 2005 No 43, Sch 1 [1].
75F Environmental assessment requirements for approval
(1) The Minister may, after consultation with the Minister for the Environment, publish guidelines in the Gazette with respect to environmental assessment requirements for the purpose of the Minister approving projects under this Part (including levels of assessment and the public authorities and others to be consulted).(2) When an application is made for the Minister’s approval for a project, the Director-General is to prepare environmental assessment requirements having regard to any such relevant guidelines in respect of the project.(3) The Director-General is to notify the proponent of the environmental assessment requirements. The Director-General may modify those requirements by further notice to the proponent.(4) In preparing the environmental assessment requirements, the Director-General is to consult relevant public authorities and have regard to the need for the requirements to assess any key issues raised by those public authorities.(5) The environmental assessment requirements may require an environmental assessment to be prepared by or on behalf of the proponent in the form approved by the Director-General.(6) The Director-General may require the proponent to include in an environmental assessment a statement of the commitments the proponent is prepared to make for environmental management and mitigation measures on the site.(7) This section is subject to section 75P.Note—Section 75P enables the Minister to determine environmental assessment requirements for approval to carry out the project or any stage of the project when giving approval to a concept plan for the project under Division 3.ss 75D–75F: Ins 2005 No 43, Sch 1 [1].
75G (Repealed)
s 75G: Ins 2005 No 43, Sch 1 [1]. Rep 2008 No 36, Sch 2.2 [2].
75H Environmental assessment and public consultation
(1) The proponent is to submit to the Director-General the environmental assessment required under this Division for approval to carry out the project.(2) If the Director-General considers that the environmental assessment does not adequately address the environmental assessment requirements, the Director-General may require the proponent to submit a revised environmental assessment to address the matters notified to the proponent.(3) After the environmental assessment has been accepted by the Director-General, the Director-General must, in accordance with any guidelines published by the Minister in the Gazette, make the environmental assessment publicly available for at least 30 days.(4) During that period, any person (including a public authority) may make a written submission to the Director-General concerning the matter.(5) The Director-General is to provide copies of submissions received by the Director-General or a report of the issues raised in those submissions to:(a) the proponent, and(b) if the project will require an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997—the Department of Environment, Climate Change and Water, and(c) any other public authority the Director-General considers appropriate.(6) The Director-General may require the proponent to submit to the Director-General:(a) a response to the issues raised in those submissions, and(b) a preferred project report that outlines any proposed changes to the project to minimise its environmental impact, and(c) any revised statement of commitments.(7) If the Director-General considers that significant changes are proposed to the nature of the project, the Director-General may require the proponent to make the preferred project report available to the public.s 75H: Ins 2005 No 43, Sch 1 [1]. Am 2009 No 106, Sch 2.11 [6].
75I Director-General’s environmental assessment report
(1) The Director-General is to give a report on a project to the Minister for the purposes of the Minister’s consideration of the application for approval to carry out the project.(2) The Director-General’s report is to include:(a) a copy of the proponent’s environmental assessment and any preferred project report, and(b) any advice provided by public authorities on the project, and(c) a copy of any report of the Planning Assessment Commission in respect of the project, and(d) a copy of or reference to the provisions of any State Environmental Planning Policy that substantially govern the carrying out of the project, and(e) except in the case of a critical infrastructure project—a copy of or reference to the provisions of any environmental planning instrument that would (but for this Part) substantially govern the carrying out of the project and that have been taken into consideration in the environmental assessment of the project under this Division, and(f) any environmental assessment undertaken by the Director-General or other matter the Director-General considers appropriate, and(g) a statement relating to compliance with the environmental assessment requirements under this Division with respect to the project.s 75I: Ins 2005 No 43, Sch 1 [1]. Am 2006 No 123, Sch 1 [6]; 2008 No 36, Sch 2.2 [3].
75J Giving of approval by Minister to carry out project
(1) If:(a) the proponent makes an application for the approval of the Minister under this Part to carry out a project, andthe Minister may approve or disapprove of the carrying out of the project.(b) the Director-General has given his or her report on the project to the Minister,(2) The Minister, when deciding whether or not to approve the carrying out of a project, is to consider:(a) the Director-General’s report on the project and the reports, advice and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and(b) if the proponent is a public authority—any advice provided by the Minister having portfolio responsibility for the proponent, and(c) any findings or recommendations of the Planning Assessment Commission following a review in respect of the project.(3) In deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.(4) A project may be approved under this Part with such modifications of the project or on such conditions as the Minister may determine.(5) The conditions of approval for the carrying out of a project may require the proponent to comply with any obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F).s 75J: Ins 2005 No 43, Sch 1 [1]. Am 2006 No 123, Sch 1 [7]–[10]; 2008 No 36, Sch 2.2 [4].
75JA Biobanking—special provisions
(1) Without limiting section 75J, the Minister may approve a project subject to a condition that requires the proponent to acquire and retire (in accordance with Part 7A of the Threatened Species Conservation Act 1995) biodiversity credits of a number and class (if any) specified by the Minister in the approval. This subsection applies whether or not a biobanking statement under Part 7A of that Act was obtained in respect of the project.(2) The Minister may approve an arrangement under which:(a) the retirement of some or all of the biodiversity credits is deferred pending the completion of any rehabilitation or restoration action proposed to be taken on the site of the project, after the project has been substantially completed, that will restore or improve the biodiversity values affected by the project, and(b) the biodiversity credits the retirement of which is deferred pending the completion of those actions are required to be transferred to the Minister administering the Threatened Species Conservation Act 1995.(3) Division 7 of Part 7A of the Threatened Species Conservation Act 1995 applies in respect of any such arrangement as if it were a deferred retirement arrangement approved by the Director-General of the Department of Environment, Climate Change and Water under that Division.(4) If a biobanking statement was obtained in respect of the project, the Minister may approve the project subject to a condition that requires the proponent to comply with any conditions of the biobanking statement.Note—The conditions of a biobanking statement may require the proponent to retire biodiversity credits in respect of the project in order to ensure that it maintains or improves biodiversity values, or to carry out other onsite measures to minimise any negative impact of the project on biodiversity values.(5) A person cannot appeal to the Court in respect of a condition imposed by the Minister under subsection (4).s 75JA: Ins 2006 No 125, Sch 2.1 [1]. Am 2009 No 106, Sch 2.11 [6].
75K Appeals by proponent
(1) This section applies to a project if:(a) the project is not a critical infrastructure project, and(b) the proponent is not a public authority, and(c) the project has not been the subject of a review by the Planning Assessment Commission, and(d) but for this Part, the provisions of Part 4 would apply to the project.(2) A proponent who is dissatisfied with the determination of the Minister with respect to an application by the proponent under this Division may appeal to the Court within 3 months after:(a) the date on which the proponent received notice of the determination of the application in accordance with the regulations, or(b) the date on which the regulations provide that a pending application is taken to have been refused for the purposes only of this section.(3) If any such appeal is made, each objector to the application referred to in section 75L is to be given notice by the Minister of that appeal and is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if the objector were a party to the appeal.s 75K: Ins 2005 No 43, Sch 1 [1]. Am 2008 No 36, Sch 2.2 [5].
75L Appeals by an objector
(1) This section applies to a project if:(a) it is not a critical infrastructure project, and(b) there has been no approval of a concept plan for the project under Division 3, and(c) the project has not been the subject of a review by the Planning Assessment Commission, and(d) but for this Part, the project would be designated development to which the provisions of Part 4 would apply.(2) For the purposes of this section, an objector is a person who has made a submission under section 75H by way of objection to an application for approval under this Division to carry out a project.(3) An objector who is dissatisfied with the determination of the Minister under this Division to give approval to carry out a project may appeal to the Court within 28 days after the date on which notice of the determination was given in accordance with the regulations.(4) If such an appeal is made, the proponent and the Minister are to be given notice of the appeal, in accordance with rules of court, and are entitled to be heard at the hearing of the appeal as parties to the appeal.s 75L: Ins 2005 No 43, Sch 1 [1]. Am 2008 No 36, Sch 2.2 [6].
Division 3 Concept plans for certain projects
pt 3A, div 3: Ins 2005 No 43, Sch 1 [1].
75M Application for approval of concept plan for project
(1) The Minister may authorise or require the proponent to apply for approval of a concept plan for a project.(2) The application is to:(a) outline the scope of the project and any development options, and(b) set out any proposal for the staged implementation of the project, and(c) contain any other matter required by the Director-General.A detailed description of the project is not required.(3) The application is to be lodged with the Director-General.(3A) A single application may be made for approval of a concept plan for a project and for approval to carry out any part or aspect of the project. In that case, environmental assessment requirements, public consultation and reports under this Division and Division 2 with respect to the project may be combined.(4) If an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, the obligation may be satisfied for a project by an application for approval and approval of a concept plan in respect of the land concerned (but only if the Minister authorises or requires an application for approval of the concept plan).s 75M: Ins 2005 No 43, Sch 1 [1]. Am 2006 No 123, Sch 1 [11] [12].
75N Environmental assessment, public consultation and Director-General’s report for concept plan
Sections 75F (Environmental assessment requirements for approval), 75H (Environmental assessment and public consultation) and 75I (Director-General’s environmental assessment report) apply, subject to the regulations, with respect to approval for the concept plan for a project in the same way as they apply with respect to approval to carry out a project.s 75N: Ins 2005 No 43, Sch 1 [1]. Am 2008 No 36, Sch 2.2 [7].
75O Giving of approval for concept plan
(1) If:(a) the proponent makes an application for the approval of the Minister under this Part of a concept plan for a project, andthe Minister may give or refuse to give approval for the concept plan for the project.(b) the Director-General has given his or her report on the project to the Minister,(2) The Minister, when deciding whether or not to give approval for the concept plan, is to consider:(a) the Director-General’s report on the project and the reports and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and(b) if the proponent is a public authority—any advice provided by the Minister having portfolio responsibility for the proponent, and(c) any findings or recommendations of the Planning Assessment Commission following a review in respect of the project.(3) In deciding whether or not to give approval for the concept plan for a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for a concept plan for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.(4) Approval for a concept plan may be given under this Division with such modifications of the concept plan as the Minister may determine.(5) Approval for the concept plan may be given under this Division subject to satisfactory arrangements being made, before final approval is given for the project or any stage of the project under this Part or under the other provisions of this Act, for the purpose of fulfilling the obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F).s 75O: Ins 2005 No 43, Sch 1 [1]. Am 2006 No 123, Sch 1 [13]–[17]; 2008 No 36, Sch 2.2 [8].
75P Determinations with respect to project for which concept plan approved
(1) When giving an approval for the concept plan for a project, the Minister may make any (or any combination) of the following determinations:(a) the Minister may determine the further environmental assessment requirements for approval to carry out the project or any particular stage of the project under this Part (in which case those requirements have effect for the purposes of Division 2),(b) the Minister may determine that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act (in which case the project or that stage of the project ceases to be a project to which this Part applies),(c) the Minister may determine that no further environmental assessment is required for the project or any particular stage of the project (in which case the Minister may, under section 75J, approve or disapprove of the carrying out of the project or that stage of the project without further application, environmental assessment or report under Division 2).(1A) The further requirements for approval to carry out the project or any part of the project that the Minister may determine under subsection (1) (a) are not limited to matters that the Director-General may require under Division 2.Note—The Minister may, for example, require a design competition for any building that is part of the project.(2) If the Minister determines that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act, the following provisions apply:(a) the determination of a development application for the project or that stage of the project under Part 4 is to be generally consistent with the terms of the approval of the concept plan,(a1) any consent granted for the project or that stage of the project under Part 4 is to be subject to such conditions as the Minister directs for the purpose of fulfilling the obligations in a statement of commitments submitted by the proponent (in which case those conditions cannot be modified without the approval of the Minister and a person cannot appeal to the Court under this Act in respect of the direction or any such conditions imposed by the consent authority),(b) the project or that stage of the project is not integrated development for the purposes of Part 4,(c) any further environmental assessment of the project or that stage of the project under Part 4 or Part 5 is to be undertaken in accordance with the requirements determined by the Minister when approving the concept plan (despite anything to the contrary in that Part),(c1) a provision of an environmental planning instrument prohibiting or restricting the carrying out of the project or that stage of the project under Part 4 (other than a project of a class prescribed by the regulations) does not have effect if the Minister so directs,(d) the Minister may, by order, declare that that stage of the project (or any part of it) is exempt or complying development for the purposes of this Act,(e) the Minister may, by order, declare that that stage of the project (or any part of it) is not designated development for the purposes of this Act,(f) the Minister may, by order, revoke or amend (as the case requires) the declaration of the project under this Part.An order under paragraph (d), (e) or (f) is to be published in the Gazette and has effect according to its tenor.s 75P: Ins 2005 No 43, Sch 1 [1]. Am 2006 No 123, Sch 1 [18]–[20].
75Q Appeal by proponent
(1) This section applies to a project for which an application for approval of a concept plan has been made if:(a) the project is not a critical infrastructure project, and(b) the proponent is not a public authority, and(c) the project has not been the subject of a review by the Planning Assessment Commission, and(d) but for this Part, the provisions of Part 4 would apply to the project.(2) A proponent who is dissatisfied with the determination of the Minister under this Division to refuse to approve the concept plan for a project (or to modify a concept plan for which approval is given) may appeal to the Court within 3 months after:(a) the date on which the proponent received notice of the determination in accordance with the regulations, or(b) the date on which the regulations provide that a pending application is taken to have been refused for the purposes only of this section.(3) If the Court allows the appeal, the Minister is to approve the concept plan in the manner determined by the Court. The Court does not have jurisdiction to approve the concept plan or to make or direct the Minister on any determination that may be made under section 75P when giving approval for a concept plan.s 75Q: Ins 2005 No 43, Sch 1 [1]. Am 2006 No 123, Sch 1 [21]; 2008 No 36, Sch 2.2 [9].
Division 4 Application of other provisions of this and other Acts
pt 3A, div 4: Ins 2005 No 43, Sch 1 [1].
75R Application of other provisions of Act
(1) Part 4 and Part 5 do not, except as provided by this Part, apply to or in respect of an approved project (including the declaration of the project as a project to which this Part applies and any approval or other requirement under this Part for the project).(2) Part 3 and State environmental planning policies apply to:(a) the declaration of a project as a project to which this Part applies or as a critical infrastructure project, and(b) the carrying out of a project, but (in the case of a critical infrastructure project) only to the extent that the provisions of such a policy expressly provide that they apply to and in respect of the particular project.(3) Environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project.Note—See sections 75J (3) and 75O (3) in relation to the application of such instruments when an application for approval of a project or a concept plan is being considered.(3A) The Minister may, by order published on the NSW legislation website, amend an environmental planning instrument to authorise the carrying out of any of the following development (or to remove or modify any provisions of the instrument that purport to prohibit or restrict the carrying out of any of the following development):(a) development that is an approved project,(b) development that is a project for which a concept plan has been approved (whether or not approval for carrying out the project or any part of the project is subject to this Part).(4) Divisions 6 and 6A of Part 4 apply to projects (and the giving of approval for the carrying out of projects under this Part) in the same way as they apply to development and the granting of consent to the carrying out of development under Part 4, subject to any necessary modifications and any modifications prescribed by the regulations. However, a condition cannot be imposed under section 94, 94A, 94EF or 94F unless that section would have applied if this Part did not apply to the project and a development consent were granted.(5) Division 2A of Part 6 applies to a critical infrastructure project only to the extent that the regulations so provide.s 75R: Ins 2005 No 43, Sch 1 [1]. Am 2006 No 8, Sch 1 [1]; 2006 No 123, Sch 1 [22] [23]; 2009 No 56, Sch 4.17 [1].
75S Erection and occupation of buildings and subdivision of land
(1A) For the purposes of this section, a relevant provision is section 81A, section 109M or any other provision of this Act relating to the issue of subdivision certificates.(1) A relevant provision applies to an approved project (other than a critical infrastructure project) in the same way as it applies to development subject to a development consent, subject to any necessary modifications and any modifications prescribed by the regulations. For that purpose, a reference in Part 4A to a development consent includes a reference to an approval of a project under this Part.(2) However:(a) a relevant provision does not apply unless that provision would have applied if this Part did not apply to the project, and(b) a relevant provision applies to a critical infrastructure project if the Minister when giving approval under this Part makes it a condition of that approval that the provision applies.(3) Section 109R applies to an approved project.s 75S: Ins 2005 No 43, Sch 1 [1]. Am 2006 No 123, Sch 1 [24]–[26]; 2008 No 36, Sch 2.2 [10]; 2009 No 106, Sch 2.11 [7].
75T Third-party appeals—critical infrastructure projects
(1) This section applies to:(a) proceedings in the Court (and orders made by the Court) under Division 3 of Part 6, and(b) proceedings in the Court (and orders made by the Court) under section 252 or 253 of the Protection of the Environment Operations Act 1997, and(c) proceedings in the Court (and orders made by the Court) under section 20 (2) of the Land and Environment Court Act 1979.(2) Proceedings in the Court (and orders made by the Court) cannot be taken or made, except on application made or approved by the Minister:(a) to remedy or restrain a breach of this Act (within the meaning of Division 3 of Part 6) arising under this Part in respect of a critical infrastructure project, including the declaration of the project as a project (and a critical infrastructure project) to which this Part applies and any approval or other requirement under this Part for the project, or(b) to enforce any conditions of an approval under this Part for a critical infrastructure project, or(c) to remedy or restrain a breach of this or any other Act arising in respect of the giving of an authorisation of a kind referred to in section 75V (1) for a critical infrastructure project (or in respect of the conditions of such an authorisation).s 75T: Ins 2005 No 43, Sch 1 [1].
75U Approvals etc legislation that does not apply
(1) The following authorisations are not required for an approved project (and accordingly the provisions of any Act that prohibit an activity without such an authority do not apply):(a) the concurrence under Part 3 of the Coastal Protection Act 1979 of the Minister administering that Part of the Act,(b) a permit under section 201, 205 or 219 of the Fisheries Management Act 1994,(c) an approval under Part 4, or an excavation permit under section 139, of the Heritage Act 1977,(d) a permit under section 87 or a consent under section 90 of the National Parks and Wildlife Act 1974,(e) an authorisation referred to in section 12 of the Native Vegetation Act 2003 (or under any Act to be repealed by that Act) to clear native vegetation or State protected land,(f) a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948,(g) a bush fire safety authority under section 100B of the Rural Fires Act 1997,(h) a water use approval under section 89, a water management work approval under section 90 or an activity approval under section 91 of the Water Management Act 2000.(2) Division 8 of Part 6 of the Heritage Act 1977 does not apply to prevent or interfere with the carrying out of an approved project.(3) The following directions, orders or notices cannot be made or given so as to prevent or interfere with the carrying out of an approved critical infrastructure project:(a) an interim protection order (within the meaning of the National Parks and Wildlife Act 1974 or the Threatened Species Conservation Act 1995),(b) an order under Division 1 (Stop work orders) of Part 6A of the National Parks and Wildlife Act 1974, Division 1 (Stop work orders) of Part 7 of the Threatened Species Conservation Act 1995 or Division 7 (Stop work orders) of Part 7A of the Fisheries Management Act 1994,(b1) a remediation direction under Division 3 (Remediation directions) of Part 6A of the National Parks and Wildlife Act 1974,(c) an environment protection notice under Chapter 4 of the Protection of the Environment Operations Act 1997,(d) an order under section 124 of the Local Government Act 1993.Note—Under the National Parks and Wildlife Act 1974, actions that are essential for carrying out an approved project provide the same defence to actions relating to harm to native fauna (and threatened species) as a development consent under Part 4, or environmental assessment under Part 5, of this Act provide.(4) A reference in this section to an approved project includes a reference to any investigative or other activities that are required to be carried out for the purpose of complying with any environmental assessment requirements under this Part in connection with an application for approval to carry out the project or of a concept plan for the project.s 75U: Ins 2005 No 43, Sch 1 [1]. Am 2006 No 123, Sch 1 [27] [28]; 2010 No 38, Sch 3.2 [2] [3].
75V Approvals etc legislation that must be applied consistently
(1) An authorisation of the following kind cannot be refused if it is necessary for carrying out an approved project and is to be substantially consistent with the approval under this Part:(a) an aquaculture permit under section 144 of the Fisheries Management Act 1994,(b) an approval under section 15 of the Mine Subsidence Compensation Act 1961,(c) a mining lease under the Mining Act 1992,(d) a production lease under the Petroleum (Onshore) Act 1991,(e) an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997 (for any of the purposes referred to in section 43 of that Act),(f) a consent under section 138 of the Roads Act 1993,(g) a licence under the Pipelines Act 1967.(2) If:(a) the Minister determines when giving approval for a concept plan under section 75P that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act, andan authorisation of the kind referred to in subsection (1) or section 75U (1) cannot be refused if it is necessary for carrying out the project or that stage of the project and is to be substantially consistent with the development consent.(b) development consent to carry out the project or that stage of the project is given under Part 4,(3) This section does not apply to or in respect of:(a) an application for the renewal of an authorisation or a renewed authorisation, or(b) an application for a further authorisation or a further authorisation following the expiry or lapsing of an authorisation, or(c) in the case of an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997—any period after the first review of the licence under section 78 of that Act.(4) A reference in this section to an authorisation or approval includes a reference to any conditions of the authorisation or approval.(5) This section applies to a person, court or tribunal that deals with an objection, appeal or review conferred on a person in relation to an authorisation in the same way as it applies to the person giving the authorisation.s 75V: Ins 2005 No 43, Sch 1 [1]. Am 2005 No 98, Sch 2.19 [1]; 2006 No 35, Sch 2.
Division 5 Miscellaneous
pt 3A, div 5: Ins 2005 No 43, Sch 1 [1].
75W Modification of Minister’s approval
(1) In this section:Minister’s approval means an approval to carry out a project under this Part, and includes an approval of a concept plan.modification of approval means changing the terms of a Minister’s approval, including:(a) revoking or varying a condition of the approval or imposing an additional condition of the approval, and(b) changing the terms of any determination made by the Minister under Division 3 in connection with the approval.(2) The proponent may request the Minister to modify the Minister’s approval for a project. The Minister’s approval for a modification is not required if the project as modified will be consistent with the existing approval under this Part.(3) The request for the Minister’s approval is to be lodged with the Director-General. The Director-General may notify the proponent of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister.(4) The Minister may modify the approval (with or without conditions) or disapprove of the modification.(5) The proponent of a project to which section 75K applies who is dissatisfied with the determination of a request under this section with respect to the project (or with the failure of the Minister to determine the request within 40 days after it is made) may, within the time prescribed by the regulations, appeal to the Court. The Court may determine any such appeal.(6) Subsection (5) does not apply to a request to modify:(a) an approval granted by or as directed by the Court on appeal, or(b) a determination made by the Minister under Division 3 in connection with the approval of a concept plan.(7) This section does not limit the circumstances in which the Minister may modify a determination made by the Minister under Division 3 in connection with the approval of a concept plan.s 75W: Ins 2005 No 43, Sch 1 [1].
75X Miscellaneous provisions relating to approvals under this Part
(1) If the proponent of a project (or proposed project) is the Minister or the corporation constituted by section 8 (1), the project must be the subject of a review by the Planning Assessment Commission.(2) The following documents under this Part in relation to a project are to be made publicly available by the Director-General:(a) applications to carry out projects,(b) environmental assessment requirements for a project determined by the Director-General or the Minister,(c) environmental assessment reports of the Director-General to the Minister,(d) approvals to carry out projects given by the Minister,(e) applications for the Minister’s approval of concept plans (and approvals of concept plans),(f) requests for modifications of approvals given by the Minister and any modifications made by the Minister.(3) The Minister may, but is not required to, give reasons to the proponent for:(a) any disapproval, or conditions or modifications, of a project, or(b) any disapproval, or modifications of, a concept plan for a project, or(c) any conditions of approval of a modification of the approval of a project.(4) The validity of an approval or other decision under this Part cannot be questioned in any legal proceedings in which the decision may be challenged except those commenced in the Court within 3 months after public notice of the decision was given.(5) The only requirement of this Part that is mandatory in connection with the validity of an approval of a project or of a concept plan for a project is a requirement that an environmental assessment with respect to the project is made publicly available under section 75H (or under that section as applied by section 75N). This subsection does not affect the operation of section 75T in relation to a critical infrastructure project.s 75X: Ins 2005 No 43, Sch 1 [1]. Am 2006 No 123, Sch 1 [29]; 2008 No 36, Sch 2.2 [11].
75Y Lapsing of approvals
(1) An approval under this Part may be subject to a condition that it lapses on a specified date unless specified action with respect to the approval has been taken (such as the commencement of work on the project or the submission of an application for approval to carry out a project for which concept approval has been given).(2) Any such condition may be modified under this Part to extend the lapsing period. The Minister is to review the approval before extending the lapsing period and may make other modifications to the approval (whether or not requested by the proponent).s 75Y: Ins 2005 No 43, Sch 1 [1].
75YA Surrender of approvals and consents
(1) An approval under this Part may be surrendered, subject to and in accordance with the regulations, by any person entitled to act on the approval.(2) A condition of the approval of a project under this Part may require any one or more of the following:(a) the surrender under subsection (1) of any other approval under this Part relating to the project or the land concerned,(b) the surrender under section 104A of any development consent relating to the project or the land concerned,(c) the surrender, subject to and in accordance with the regulations, of a right conferred by Division 10 of Part 4 relating to the project or the land concerned.s 75YA: Ins 2006 No 123, Sch 1 [30].
75Z Regulations for purposes of Part
The regulations may make provision for or with respect to the approval of projects (and concept plans for projects) under this Part and to approved projects (and concept plans), including:(a) prescribing time limits for dealing with applications or other matters under this Part and deeming acceptance or rejection of applications or other matters if those time limits are not complied with, and(b) requiring owners of land on which projects are proposed to be carried out to consent to applications for approvals under this Part, and(c) providing for public exhibition, notification and public registers of applications for approvals under this Part (or for the modification of approvals) and of the determination of those applications, and(d) the fees for applications and the exercise of functions under this Part, and(e) requiring the New South Wales Aboriginal Land Council to consent to applications for approvals under this Part on land owned by Local Aboriginal Land Councils, if the consent of the Local Aboriginal Land Council concerned is required as owner of the land.s 75Z: Ins 2005 No 43, Sch 1 [1]. Am 2009 No 58, Sch 2.2 [1].
75ZA Savings, transitional and other provisions
(1) Development may be declared to be a project to which this Part applies even though action has been taken under Part 4 or Part 5 before the declaration (whether before or after the commencement of this Part) for the purposes of authorising the carrying out of the development under this Act.(2) The regulations may make provision for or with respect to the effect of any such action under Part 4 or Part 5 after the declaration is made or to the effect of the revocation of a declaration after an approval has been given under this Part. In particular, the regulations may make provision for or with respect to:(a) the termination or consolidation of consents or approvals under Part 4 or Part 5, and(b) the revival of consents or approvals under Part 4 or Part 5 or the preservation of the effect of approvals under this Part, and(c) the recognition of any environmental assessment under Part 4 or Part 5 for the purposes of this Part or of any environmental assessment under this Part for the purposes of Part 4 or Part 5.(3) Any development that has been approved by the Minister under this Part (at any time after the commencement of this Part) is taken to be a project to which this Part applies, and to have been such a project for the purposes of any application, concept plan or other matter under this Part in relation to the development.(4) Subsection (3) extends to things that purport to be done under this Part.s 75ZA: Ins 2005 No 43, Sch 1 [1]. Am 2006 No 123, Sch 1 [31].
Part 4 Development assessment
Note—
The environmental planning legislation comprises 3 elements, namely, this Act, the environmental planning instruments and the regulations made under this Act. The legislative scheme for environmental planning control is, broadly speaking, distributed between the 3 elements as follows:
(a) This Part of the Act, Part 4, lays the foundation for the legislative scheme. It contains the major concepts and addresses the major matters of principle.
(b) The environmental planning instruments identify particular forms of development according to the threefold classification that is established by Division 1 of this Part. They also determine whether development is exempt development as referred to in section 76 (2) or complying development as referred to in section 76A (5).
(c) The regulations contain much of the detail of the various processes that, having regard to the nature of the proposed development, lead to the granting of development consent. They also largely determine whether development is designated development.
pt 4: Ins 1997 No 152, Sch 1 [32]. For information concerning this Part before the commencement of 1997 No 152, Sch 1 [32], see the historical table of amendments in the Legislative history.
Division 1 Carrying out of development—the threefold classification
pt 4, div 1: Ins 1997 No 152, Sch 1 [32].
76 Development that does not need consent
(1) General If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies.Note—Environmental assessment of the development may nevertheless be required under Part 5.(2) Exempt development An environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development.(3) If development is exempt development:(a) the development may be carried out, in accordance with the instrument, on land to which the provision applies without the need for development consent, unless that land:(i) is critical habitat, or(ii) is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987), and(b) Part 5 does not apply to the development.A provision made under subsection (2) has no effect at any time during which the land is land to which paragraph (a) (i) or (ii) applies.s 76: Ins 1997 No 152, Sch 1 [32]. Am 2001 No 56, Sch 1.3 [2].
76A Development that needs consent
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:(a) such a consent has been obtained and is in force, and(b) the development is carried out in accordance with the consent and the instrument.(2) For the purposes of subsection (1), development consent may be obtained:(a) by the making of a determination by a consent authority to grant development consent, or(b) in the case of complying development, by the issue of a complying development certificate.(3), (4) (Repealed)(5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.(6) A provision under subsection (5) cannot be made:(a) (Repealed)(b) if the development is designated development, or(c) if the development is development for which development consent cannot be granted except with the concurrence of a person other than:(i) the consent authority, or(ii) the Director-General of the Department of Environment, Climate Change and Water as referred to in section 79B (3), or(d) so as to apply to land that is critical habitat, or(e) so as to apply to land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987), or(f) so as to apply to land that comprises, or on which there is, an item of the environmental heritage:(i) that is subject to an interim heritage order under the Heritage Act 1977, or that is listed on the State Heritage Register under that Act, or(ii) that is identified as such an item in an environmental planning instrument, or(g) so as to apply to land that is identified as an environmentally sensitive area in the environmental planning instrument that makes provision for the complying development.A provision made under subsection (5) has no effect in relation to development or land at any time during which the development or land is development or land to which paragraph (a)–(g) applies.Note—Further provisions concerning complying development are found in Division 3 of this Part.(7)–(9) (Repealed)s 76A: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 138, Sch 2.2 [1]; 1999 No 72, Sch 5 [6]; 2001 No 56, Sch 1.3 [3]; 2005 No 43, Sch 1 [8] [9]; 2008 No 36, Sch 2.1 [15]; 2009 No 106, Sch 2.11 [1].
76B Development that is prohibited
If an environmental planning instrument provides that:(a) specified development is prohibited on land to which the provision applies, ora person must not carry out the development on the land.(b) development cannot be carried out on land with or without development consent,ss 76B: Ins 1997 No 152, Sch 1 [32]. Am 2001 No 56, Sch 1.3 [4] [5].
76C Relationship of this Division to this Act
This Division is subject to the other provisions of this Act, unless express provision is made to the contrary.ss 76C: Ins 1997 No 152, Sch 1 [32].
Division 2 The procedures for development that needs consent
pt 4, div 2: Ins 1997 No 152, Sch 1 [32].
77 Application of Division
This Division:(a) applies to development that may not be carried out except with development consent, but(b) does not apply to complying development.Note—Under this Part, the procedures by which development consent is obtained differ according to whether the development:(a) (Repealed)(b) is or is not designated development (which it may be declared to be by an environmental planning instrument or the regulations), and(c) is or is not integrated development (see Division 5).s 77: Ins 1997 No 152, Sch 1 [32]. Am 2005 No 43, Sch 1 [10].
77A Designated development
Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations.s 77A: Ins 1997 No 152, Sch 1 [32].
78 The development consent process—the main steps
The main steps in the development consent process are set out in sections 78A–81 and in the regulations made for the purposes of this Part.s 78: Ins 1997 No 152, Sch 1 [32].
78A Application
(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.(2) A single application may be made in respect of one or more of the types of development referred to in paragraphs (a)–(f) of the definition of development in section 4 (1).(3) If the consent authority is a council, a person (other than the Crown or a person acting on behalf of the Crown) may, in the same development application, apply for development consent and approval for anything that requires approval under the following provisions of the Table to section 68 of the Local Government Act 1993, namely:paragraph 1 of Part Aparagraph 1–6 of Part Bparagraph 1–5 of Part Cparagraph 1 of Part Eparagraph 1–5 or 10 of Part F.(4) In determining a development application to which subsection (3) applies, the council may apply any of the provisions of or under the Local Government Act 1993 that it could apply if the development application were an application under that Act for the relevant approval. In particular, if development consent is granted, the council may impose a condition that is authorised under that Act to be imposed as a condition of an approval.(5) If development consent is granted to a development application to which subsection (3) applies, the council is taken to have granted the relevant approval under the Local Government Act 1993 that authorises the activity, but that Act has no application to the approval so taken to have been granted.(6) In granting development consent to a development application to which subsection (3) applies, the council may, without limiting any other condition it may impose, impose, in relation to the approval taken to have been granted under the Local Government Act 1993, either or both of the following conditions:(a) a condition that the approval is granted only to the applicant and does not attach to or run with the land to which it applies,(b) a condition that the approval is granted for a specified time.(7) A development application cannot be made in respect of land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987) unless any consent to the development required under that Act has been obtained.(8) A development application must be accompanied by:(a) if the application is in respect of designated development—an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations, or(b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats—a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.Note—Part 7A of the Threatened Species Conservation Act 1995 provides for certain circumstances in which development is taken not to significantly affect threatened species, populations or ecological communities, or their habitats.(9) The regulations may specify other things that are required to be submitted with a development application.s 78A: Ins 1997 No 152, Sch 1 [32]. Am 2001 No 93, Sch 2 [4]; 2006 No 123, Sch 1 [32] [33]; 2006 No 125, Sch 2.1 [2].
79 Public participation—designated development
(1) Public exhibition and notification As soon as practicable after a development application is made for consent to carry out designated development, the consent authority must:(a) place the application and any accompanying information on public exhibition for a period of not less than 30 days (the submission period) commencing on the day after which notice of the application is first published as referred to in paragraph (d), and(b) give written notice of the application in accordance with the regulations:(i) to such persons as appear to it to own or occupy the land adjoining the land to which the development application relates, and(ii) if practicable, to such other persons as appear to it to own or occupy land the use or enjoyment of which, in its opinion, may be detrimentally affected if the designated development is carried out, and(iii) to such other persons as are required to be notified by the regulations, and(c) cause notice of the application to be exhibited in accordance with the regulations on the land to which the application relates, and(d) cause notice of the application to be published in accordance with the regulations in a newspaper circulating in the locality.(2) If land is:(a) a lot within the meaning of the Strata Schemes (Freehold Development) Act 1973, a written notice to the owners corporation is taken to be a written notice under subsection (1) (b) to the owner or occupier of each lot within the strata scheme, or(b) a lot within the meaning of the Strata Schemes (Leasehold Development) Act 1986, a written notice to the lessor under the leasehold strata scheme concerned and to the owners corporation is taken to be a written notice under subsection (1) (b) to the owner or occupier of each lot within the scheme.(3) If land is owned or occupied by more than one person, a written notice to one owner or one occupier is taken to satisfy the requirements of subsection (1) (b).(4) Inspection of application and accompanying information During the submission period, any person may inspect the development application and any accompanying information and make extracts from or copies of them.(5) Making of submissions During the submission period, any person may make written submissions to the consent authority with respect to the development application. A submission by way of objection must set out the grounds of the objection.(6) Circumstances in which public exhibition may be dispensed with If:(a) a development application for designated development is amended, or substituted, or withdrawn and later replaced before it has been determined by the consent authority, and(b) the consent authority has complied with subsections (1), (2) and (3) in relation to the original application, andthe consent authority may decide to dispense with further compliance with subsection (1) in relation to the amended, substituted or later application. In that event, compliance with subsection (1) in relation to the original application is taken to be compliance in relation to the amended, substituted or later application.(c) the consent authority is of the opinion that the amended, substituted or later application differs only in minor respects from the original application,(7) The consent authority must give written notice to the applicant of its decision under subsection (6) at or before the time notice of the determination of the development application is given under section 81.s 79: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 2.12 [1].
79A Public participation—advertised development and other notifiable development
(1) Notice of a development application for consent to carry out advertised development is to be given in accordance with this Act, the regulations, the relevant environmental planning instrument and any relevant development control plan.(2) A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application.s 79A: Ins 1997 No 152, Sch 1 [32].
79B Consultation and concurrence
(1) General If, by an environmental planning instrument, the consent authority, before determining the development application, is required to consult with or to obtain the concurrence of a person, the consent authority must, in accordance with the environmental planning instrument and the regulations, consult with or obtain the concurrence of the person, unless the consent authority determines to refuse to grant development consent.(2) However, if, by an environmental planning instrument, the Minister, before determining a development application, is required to obtain the concurrence of a person, the Minister is required only to consult with the person.(3) Consultation and concurrence—threatened species Development consent cannot be granted for:(a) development on land that is, or is a part of, critical habitat, orwithout the concurrence of the Director-General of the Department of Environment, Climate Change and Water or, if a Minister is the consent authority, unless the Minister has consulted with the Minister administering the Threatened Species Conservation Act 1995.(b) development that is likely to significantly affect a threatened species, population, or ecological community, or its habitat,Note—The development is taken not to significantly affect threatened species, populations or ecological communities, or their habitats if:(a) the development is to be carried out on biodiversity certified land (within the meaning of Part 7AA of the Threatened Species Conservation Act 1995), or(b) a biobanking statement has been issued in respect of the development under Part 7A of the Threatened Species Conservation Act 1995.(4) Despite subsection (3), if the Minister administering the Threatened Species Conservation Act 1995 considers that it is appropriate, that Minister may:(a) elect to act in place of the Director-General of the Department of Environment, Climate Change and Water for the purposes of that subsection, or(b) review and amend any recommendations that that Director-General proposes to make, or any advice that that Director-General proposes to offer, for the purposes of that subsection.(5) In deciding whether or not concurrence should be granted under subsection (3), the Director-General of the Department of Environment, Climate Change and Water or the Minister administering the Threatened Species Conservation Act 1995 must take the following matters into consideration:(a) any species impact statement that accompanied the development application,(b) any assessment report prepared by the consent authority,(c) any submissions received concerning the development application,(d) any relevant recovery plan or threat abatement plan,(e) whether the development proposed is likely to reduce the long-term viability of the species, population or ecological community in the region,(f) whether the development is likely to accelerate the extinction of the species, population or ecological community or place it at risk of extinction,(g) the principles of ecologically sustainable development,(h) the likely social and economic consequences of granting or of not granting concurrence.(6) The Minister administering the Threatened Species Conservation Act 1995 must provide the Minister who is the consent authority with any recommendations made by the Director-General of the Department of Environment, Climate Change and Water concerning determination of a development application relating to development referred to in subsection (3) and, if that Minister does not accept any one or more of the recommendations, that Minister must include in the determination the recommendations not accepted and that Minister’s reasons for not accepting them.(7) A copy of the reasons referred to in subsection (6) must be available for public inspection, during ordinary office hours, at the head office of the National Parks and Wildlife Service.(8) Granting or refusal of concurrence A person whose concurrence to development is required may:(a) grant concurrence to the development, either unconditionally or subject to conditions, or(b) refuse concurrence to the development.In deciding whether to grant concurrence, the person must take into consideration only the matters stated pursuant to section 30 (3) and applicable to the development (unless the relevant environmental planning instrument is a deemed instrument referred to in Division 2 of Part 21 of Schedule 6).(8A) Threatened species requirements The Director-General of the Department of Environment, Climate Change and Water may grant concurrence under this section conditional on the taking of specified action (voluntary action, as provided by subsection (8B)) that the Director-General considers will significantly benefit threatened species conservation, but only if the Director-General is satisfied that the person who proposes to carry out the development to which the concurrence relates has agreed to take the voluntary action and agrees to the imposition of the condition.(8B) The voluntary action that can be required by a condition imposed under this section is any one or more of the following:(a) the reservation of land under Part 4 of the National Parks and Wildlife Act 1974 or the entering into of a conservation agreement relating to the land under that Act,(b) action to secure the protection of land for conservation purposes by a method that the Director-General considers satisfactory,(c) action to restore threatened species habitat on land referred to in paragraph (a) or (b),(d) the contribution of money for a purpose referred to in paragraphs (a)–(c).(9) Giving effect to concurrence A consent authority that grants consent to the carrying out of development for which a concurrence has been granted must grant the consent subject to any conditions of the concurrence. This does not affect the right of the consent authority to impose conditions under section 80A not inconsistent with the conditions of the concurrence or to refuse consent.(10) Avoidance of consents subject to concurrence If, by an environmental planning instrument or by subsection (3), a development application may not be determined by the granting of consent without the concurrence of a specified person, a consent granted:(a) without that concurrence, oris, subject to sections 102–104, voidable.(b) not subject to any conditions of the concurrence,(11) However, if the specified person fails to inform the consent authority of the decision concerning concurrence within the time allowed for doing so, the consent authority may determine the development application without the concurrence of the specified person and a development consent so granted is not voidable on that ground.(12) Nothing in this section affects any liability of a consent authority in respect of a consent granted as referred to in subsection (10) (a) or (b).s 79B: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 2.12 [2]; 1999 No 72, Sch 5 [7]; 2001 No 56, Sch 1.3 [6]; 2005 No 43, Sch 6 [9]; 2006 No 125, Sch 2.1 [3]; 2008 No 36, Sch 1.2 [25]; 2009 No 106, Sch 2.11 [1]; 2010 No 39, Sch 2.1 [1] [2].
79BA Consultation and development consent—certain bush fire prone land
(1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land unless the consent authority:(a) is satisfied that the development conforms to the specifications and requirements of Planning for Bushfire Protection, ISBN 0 9585987 8 9, produced by the NSW Rural Fire Service (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document), that are relevant to the development, or(b) has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire.(2) In this section:special fire protection purpose has the same meaning as it has in section 100B of the Rural Fires Act 1997.s 79BA: Ins 2002 No 67, Sch 1 [2]. Am 2004 No 91, Sch 2.27 [1] [2].
79C Evaluation
(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:(a) the provisions of:(i) any environmental planning instrument, and(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and(iii) any development control plan, and(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, andthat apply to the land to which the development application relates,(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,(c) the suitability of the site for the development,(d) any submissions made in accordance with this Act or the regulations,(e) the public interest.Note—See section 75P (2) (a) for circumstances in which determination of development application to be generally consistent with approved concept plan for a project under Part 3A.Note—The consent authority is not required to take into consideration the likely impact of the development on biodiversity values if:(a) the development is to be carried out on biodiversity certified land (within the meaning of Part 7AA of the Threatened Species Conservation Act 1995), or(b) a biobanking statement has been issued in respect of the development under Part 7A of the Threatened Species Conservation Act 1995.(2) Compliance with non-discretionary development standards—development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority:(a) is not entitled to take those standards into further consideration in determining the development application, and(b) must not refuse the application on the ground that the development does not comply with those standards, andand the discretion of the consent authority under this section and section 80 is limited accordingly.(c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,(3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards:(a) subsection (2) does not apply and the discretion of the consent authority under this section and section 80 is not limited as referred to in that subsection, and(b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.Note—The application of non-discretionary development standards to complying development is dealt with in section 85A (3) and (4).(4) Consent where an accreditation is in force A consent authority must not refuse to grant consent to development on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.(5) A consent authority and an employee of a consent authority do not incur any liability as a consequence of acting in accordance with subsection (4).(6) Definitions In this section:(a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and(b) non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.s 79C: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 2.12 [3]; 2005 No 19, Sch 1 [1]; 2005 No 43, Schs 1 [11], 3 [1]; 2005 No 115, Sch 3.2 [4]; 2006 No 125, Sch 2.1 [4]; 2008 No 36, Sch 1.2 [26]; 2010 No 39, Sch 2.1 [3].
80 Determination
(1) General A consent authority is to determine a development application by:(a) granting consent to the application, either unconditionally or subject to conditions, or(b) refusing consent to the application.(2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.(3) “Deferred commencement” consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.(4) Total or partial consent A development consent may be granted:(a) for the development for which the consent is sought, or(b) for that development, except for a specified part or aspect of that development, or(c) for a specified part or aspect of that development.(5) The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development.Note—See also Division 2A for special procedures concerning staged development applications.(6) Restrictions on determination of development applications where Planning Assessment Commission review is held concerning environmental aspects of proposed development A consent authority that has received notice that the Minister has requested that a review be held by the Planning Assessment Commission with respect to the environmental aspects of proposed development or part of any such proposed development the subject of a development application:(a) must not determine the development application in so far as it relates to proposed designated development, and(b) must not determine the development application in so far as it relates to development that is not designated development until:(i) the review has been held, and(ii) the consent authority has considered the findings and recommendations of the Planning Assessment Commission and any comments made by the Minister that accompanied those findings and recommendations when they were forwarded to the consent authority.(7) If the Minister has requested that a review be held by the Planning Assessment Commission in relation to any proposed designated development the subject of a development application, the Minister is to determine the application after the review has been held and the Minister has considered the findings and recommendations of the Commission.(8) Sections 82, 97 and 98 do not apply to or in respect of the development application determined by the Minister under subsection (7) or its determination.(9) Restrictions on determination of development applications for designated development A consent authority must not determine a development application for designated development:(a) until after the submission period (within the meaning of section 79 (1) (a)) has expired, or(b) if a submission is made with respect to the application within the submission period, until after 21 days following the date on which a copy of the submission is forwarded to the Director-General have expired.(10) Subsection (9) (b) does not apply:(a) to a consent authority being the Minister or the Director-General, or(b) if the Director-General has waived the requirement that submissions be forwarded to the Director-General for a specified development application or for a specified class of development applications.(10A) (Repealed)(11) Other restrictions on determination of development applications The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined.(12) Effect of issuing construction certificate If a consent authority or an accredited certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 96).(13), (14) (Repealed)s 80: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 33, Sch 4.1 [1]; 1998 No 54, Schs 1.9 [3], 2.12 [4]; 1999 No 72, Schs 4 [2], 5 [8] [9]; 2003 No 95, Sch 1 [5] [6]; 2005 No 43, Sch 3 [2] [3]; 2008 No 36, Sch 2.2 [12]–[16].
80A Imposition of conditions
(1) Conditions—generally A condition of development consent may be imposed if:(a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or(b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 10 in relation to the land to which the development application relates, or(c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or(d) it limits the period during which development may be carried out in accordance with the consent so granted, or(e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or(g) it modifies details of the development the subject of the development application, or(h) it is authorised to be imposed under section 80 (3) or (5), subsections (5)–(9) of this section or section 94, 94A, 94EF or 94F.(2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.(3) A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 97, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect.(4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following:(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,(b) clear criteria against which achievement of the outcome or objective must be assessed.(5) Modification or surrender of consents or existing use rights If a consent authority imposes (as referred to in subsection (1) (b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 10, the consent or right may be modified or surrendered subject to and in accordance with the regulations.(6) Conditions and other arrangements concerning security A development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of any one or more of the following:(a) making good any damage caused to any property of the consent authority (or any property of the corporation) as a consequence of the doing of anything to which the consent relates,(b) completing any public work (such as road work, kerbing and guttering, footway construction, stormwater drainage and environmental controls) required in connection with the consent,(c) remedying any defects in any such public work that arise within 6 months after the work is completed.(7) The security is to be for such reasonable amount as is determined by the consent authority.(8) The security may be provided, at the applicant’s choice, by way of:(a) deposit with the consent authority, or(b) a guarantee satisfactory to the consent authority.(9) The security is to be provided before carrying out any work in accordance with the development consent or at such other time as may be agreed to by the consent authority.(10) The funds realised from a security may be paid out to meet any cost referred to in subsection (6). Any balance remaining is to be refunded to, or at the direction of, the persons who provided the security.(10A) A condition of a consent has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development.(10B) Review of extended hours of operation and number of persons permitted A development consent that is granted subject to a reviewable condition may be granted subject to a further condition that the consent authority may review that condition at any time or at intervals specified by the consent and that the reviewable condition may be changed on any such review.(10C) The regulations may make provision for or with respect to the kinds of development that may be subject to a further condition referred to in subsection (10B), the matters that must be included in such a condition and the procedures for a review under such a condition.(10D) A decision by a consent authority to change a reviewable condition on a review is taken to be a determination of a development consent for the purposes of this Act.Note—A review application or an appeal against a determination of a development consent may be made under Division 7A or 8.(10E) For the purposes of subsections (10B)–(10D), a reviewable condition means any of the following:(a) a condition that permits extended hours of operation (in addition to other specified hours of operation),(b) a condition that increases the maximum number of persons permitted in a building (in addition to the maximum number otherwise permitted).(11) Prescribed conditions A development consent is subject to such conditions as may be prescribed by the regulations.s 80A: Ins 1997 No 152, Sch 1 [32]. Am 2000 No 29, Sch 1 [2]; 2005 No 19, Sch 1 [2]; 2005 No 115, Sch 3.2 [5]; 2006 No 8, Sch 1 [2]; 2008 No 36, Sch 2.1 [21].
81 Post-determination notification
(1) The consent authority must, in accordance with the regulations, notify its determination of a development application to:(a) the applicant, and(b) in the case of a development application for consent to carry out designated development, each person who made a submission under section 79 (5), and(c) such other persons as are required by the regulations to be notified of the determination of the development application.(2) If the consent authority is not the council, the consent authority must notify the council of its determination.(3) In the case of a development application for consent to carry out designated development, the consent authority must also notify each person who made a submission under section 79 (5) by way of objection of the person’s rights to appeal against the determination and of the applicant’s rights to appeal against the determination.s 81: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 1.9 [4] [5].
81A Effects of development consents and commencement of development
(1) Erection of buildings A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M.Note—Section 109M prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.(2) The erection of a building in accordance with a development consent must not be commenced until:(a) a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and(b) the person having the benefit of the development consent has:(i) appointed a principal certifying authority for the building work, and(ii) notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and(b1) the principal certifying authority has, no later than 2 days before the building work commences:(i) notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and(ii) notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and(b2) the person having the benefit of the development consent, if not carrying out the work as an owner-builder, has:(i) appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and(ii) notified the principal certifying authority of any such appointment, and(iii) unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and(c) the person having the benefit of the development consent has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the erection of the building.(3) Subdivision of land A development consent that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems.Note—A plan of subdivision cannot be registered under the Conveyancing Act 1919 unless a subdivision certificate has been issued for the subdivision.(4) Subdivision work in accordance with a development consent must not be commenced until:(a) a construction certificate for the subdivision work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and(b) the person having the benefit of the development consent has appointed a principal certifying authority for the subdivision work, and(b1) the principal certifying authority has, no later than 2 days before the subdivision work commences:(i) notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and(ii) notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the subdivision work, and(c) the person having the benefit of the development consent has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the subdivision work.(5) Regulations may provide for the issue of certificates The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.(6) Crown building work Subsections (2) and (4) do not apply in relation to Crown building work that is certified, in accordance with section 109R, to comply with the technical provisions of the State’s building laws.(7) Penalty for contravention of subsection (2) or (4) The maximum penalty that may be imposed for a contravention of subsection (2) or (4) is 1,000 penalty units.s 81A: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 1.9 [6]–[8]; 2003 No 95, Sch 1 [7]–[9]; 2008 No 36, Schs 2.2 [19], 4.1 [6] [7].
82 Circumstances in which consent is taken to have been refused
(1) A consent authority that has not determined a development application within the relevant period, prescribed by the regulations, applicable to the development the subject of the development application is, for the purpose only of section 97, taken to have determined the application by refusing consent on the date on which the period expires.(2) Nothing in subsection (1) prevents a consent authority from determining a development application after the expiration of the relevant period referred to in that subsection, whether on a review under section 82A or otherwise.(3) A determination pursuant to subsection (2) does not, subject to subsection (4), prejudice or affect the continuance or determination of an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made.(4) If a determination pursuant to subsection (2) is made by granting consent, the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal (being an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made) withdrawn at any time prior to the determination of that appeal.s 82: Ins 1997 No 152, Sch 1 [32].
82A Review of determination
(1) If the consent authority is a council, an applicant may request the council to review a determination of the applicant’s application, other than:(a) a determination to issue or refuse to issue a complying development certificate, or(b) a determination in respect of designated development, or(c) a determination in respect of integrated development, or(d) a determination made by the council under section 116E in respect of an application by the Crown.(2) A request for a review may be made at any time, subject to subsection (2A).(2A) A determination cannot be reviewed:(a) after the time limited for the making of an appeal under section 97 expires, if no such appeal is made against the determination, or(b) after an appeal under section 97 against the determination is disposed of by the Court, if such an appeal is made against the determination.(3) The prescribed fee must be paid in connection with a request for a review.(3A) In requesting a review, the applicant may make amendments to the development described in the original application, subject to subsection (4) (c).(4) The council may review the determination if:(a) it has notified the request for review in accordance with:(i) the regulations, if the regulations so require, or(ii) a development control plan, if the council has made a development control plan that requires the notification or advertising of requests for the review of its determinations, and(b) it has considered any submissions made concerning the request for review within any period prescribed by the regulations or provided by the development control plan, as the case may be, and(c) in the event that the applicant has made amendments to the development described in the original application, the consent authority is satisfied that the development, as amended, is substantially the same development as the development described in the original application.(4A) As a consequence of its review, the council may confirm or change the determination.(5) The decision whether or not to review the determination must not be made by the person who made the determination unless that person was the council, but is to be made by a person who is qualified under subsection (6) to make the review.(6) If the council reviews the determination, the review must be made by:(a) if the determination was made by a delegate of the council—the council or another delegate of the council who is not subordinate to the delegate who made the determination, or(b) if the determination was made by the council—the council.(7) The council must give notice of the result of the review to the applicant as soon as practicable after the review.(8) If on the review the council grants development consent, or varies the conditions of a development consent, the council must endorse on the notice the date from which the consent, or the consent as varied, operates.(9) If on a review the council changes a determination, the changed determination replaces the earlier determination as from the date of the review.(10) If on a review the council grants development consent, or varies the conditions of a development consent, the council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal made under section 97 in respect of its determination withdrawn at any time prior to the determination of that appeal.(11) A decision on a review may not be further reviewed under this section.s 82A: Ins 1997 No 152, Sch 1 [32]. Am 2000 No 93, Sch 1.8 [9]; 2001 No 56, Sch 1.3 [7]; 2002 No 76, Sch 2 [2]–[4]; 2005 No 43, Schs 1 [12], 2 [18].
83 Date from which consent operates
(1) Subject to subsections (2) and (3), if a determination is made by the granting of consent, the consent becomes effective and operates from:(a) except as provided in paragraph (b)—the date that is endorsed on the notice given to the applicant in accordance with section 81 (1) of the determination of the development application or under section 82A (7), or(b) in the case of designated development to which an objection has been made in accordance with section 79 (5):(i) if consent was granted under section 80 (7) following the holding of a review by the Planning Assessment Commission—the date that is endorsed on the notice of the determination of the development application given to the applicant in accordance with section 81 (1), or(ii) in any other case—the expiration of 28 days from the date that is endorsed on the notice of the determination of the development application given to the applicant in accordance with section 81 (1).(2) Subject to subsection (3), if a determination is made by the granting of consent or the granting of consent subject to conditions, and an appeal has been made under section 97 or 98, the consent:(a) ceases to be, or does not become, effective pursuant to subsection (1), and(b) becomes effective and operates from the date of the determination of that appeal, except where that decision is to refuse development consent.(3) A consent referred to in subsection (1) or (2) is void and, except for the purposes of section 97 or 98, is taken never to have been granted if:(a) an appeal under section 97 is dismissed and development consent is refused, or(b) an appeal under section 98 is upheld, with the effect that development consent is refused.(4) If a determination is made by refusing consent or if an application is taken by section 82 to have been so determined, and the decision on the appeal made pursuant to section 97 in respect of that determination has the effect of granting consent, the decision is taken to be a consent granted under this Division and that consent is effective and operates from the date of that decision.(5) Despite any other provision of this section, a development consent is taken to become effective and operate from such date as may be fixed by:(a) a court (whether or not the Land and Environment Court) that finally determines an appeal on a question of law which confirms the validity of, or results in the granting of, the consent, or(b) the Land and Environment Court, if the validity of a consent granted by that Court is confirmed by, or the consent is granted by that Court as a result of, such a final determination made by another court that has not fixed that date.(6) A development consent in respect of a development application that is taken to have been determined under Part 5A operates from the date on which it is taken to have been determined.s 83: Ins 1997 No 152, Sch 1 [32]. Am 1999 No 72, Sch 4 [3]; 2008 No 36, Sch 2.2 [27].
Division 2A Special procedures concerning staged development applications
pt 4, div 2A (ss 83A–83D): Ins 2005 No 43, Sch 3 [4].
83A Application of this Division
This Division applies to staged development applications and to consents granted on the determination of those applications.pt 4, div 2A (ss 83A–83D): Ins 2005 No 43, Sch 3 [4].
83B Staged development applications
(1) For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development.(2) A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application.(3) If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless:(a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or(b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.(4) The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3).pt 4, div 2A (ss 83A–83D): Ins 2005 No 43, Sch 3 [4].
83C Staged development applications as alternative to dcp required by environmental planning instruments
(1) An environmental planning instrument cannot require the making of a staged development application before development is carried out.(2) However, if an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, that obligation may be satisfied by the making and approval of a staged development application in respect of that land.Note—Section 74D (5) also authorises the making of a development application where the relevant planning authority refuses to make, or delays making, a development control plan.(3) Any such staged development application is to contain the information required to be included in the development control plan by the environmental planning instrument or the regulations.pt 4, div 2A (ss 83A–83D): Ins 2005 No 43, Sch 3 [4].
83D Status of staged development applications and consents
(1) The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a staged development application and a development consent granted on the determination of any such application.Note—Applicable provisions in respect of staged development applications include provisions relating to designated development, integrated development and regulations made under section 105.(2) While any consent granted on the determination of a staged development application for a site remains in force, the determination of any further development application in respect of that site cannot be inconsistent with that consent.(3) Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a staged development application.Note—See section 95 (2) which prevents a reduction in the 5 year period of a development consent.pt 4, div 2A (ss 83A–83D): Ins 2005 No 43, Sch 3 [4].
Division 3 Special procedure for complying development
pt 4, div 3: Ins 1997 No 152, Sch 1 [32].
pt 4, div 3, note: Rep 2008 No 36, Sch 2.1 [22].
84 Application of this Division
This Division applies to complying development.s 84: Ins 1997 No 152, Sch 1 [32].
84A Carrying out of complying development
(1) A person may carry out complying development on land if:(a) the person has been issued with a complying development certificate for the development, and(b) the development is carried out in accordance with:(i) the complying development certificate, and(ii) any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued.(2) An application for a complying development certificate may be made:(a) by the owner of the land on which the development is proposed to be carried out, or(b) by any other person, with the consent of the owner of that land.(3) The regulations may provide for the procedures for making an application, the fees payable in connection with an application and the procedures for dealing with an application.(4) (Repealed)(5) Nothing in this Division prevents a consent authority from considering and determining a development application for the carrying out of complying development.s 84A: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 1.9 [9]; 1998 No 120, Sch 1.15 [1].
84B (Repealed)
s 84B: Ins 1997 No 152, Sch 1 [32]. Rep 1998 No 54, Sch 1.9 [10].
85 What is a “complying development certificate”?
(1) Terms of complying development certificate A complying development certificate is a certificate:(a) that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and(b) in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia.(2) A complying development certificate may indicate different classifications for different parts of the same building.Note—To the extent to which it deals with the classification of a proposed building, a complying development certificate under this Division replaces the statement of classification formerly issued under the regulations under the Local Government Act 1993.(3) Erection of buildings A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 109M.Note—Section 109M prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.(4) Subdivision of land A complying development certificate that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems.Note—A plan of subdivision cannot be registered under the Conveyancing Act 1919 unless a subdivision certificate has been issued for the subdivision.(5) Other requirements for complying development certificates The regulations:(a) may impose other requirements concerning the issue of complying development certificates, and(b) may provide for the form in which a complying development certificate is to be issued.(5A) A complying development certificate has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development.(6) For the purposes of this section, development standard includes a provision of a development control plan that would be a development standard, within the meaning of section 4, if the provision were in an environmental planning instrument.s 85: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 1.9 [11] [12]; 2005 No 115, Sch 3.2 [6].
85A Process for obtaining complying development certificates
(1) Application An applicant may, in accordance with the regulations, apply to:(a) the council, orfor a complying development certificate.(b) an accredited certifier,(2) (Repealed)(3) Evaluation The council or accredited certifier must consider the application and determine:(a) whether or not the proposed development is complying development, and(b) whether or not the proposed development complies with the relevant development standards, and(c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions.(4) A council or accredited certifier must not refuse to issue a complying development certificate on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.(5) A council, an employee of a council and an accredited certifier do not incur any liability as a consequence of acting in accordance with subsection (4).(6) Determination The council or an accredited certifier may determine an application:(a) by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or(b) by refusing to issue a complying development certificate.(7) The council or an accredited certifier must not refuse to issue a complying development certificate if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the regulations relating to the issue of a complying development certificate.(8) The determination of an application by the council or accredited certifier must be completed within the period prescribed by the regulations (or such longer period as may be agreed to by the applicant) after lodgment of the application.(9) In determining the application, the council or the accredited certifier must impose a condition that is required to be imposed under Division 6 in relation to the complying development.(10) There is no right of appeal against the determination of, or a failure or refusal to determine, an application for a complying development certificate by a council or an accredited certifier.(10A) Payment of long service levy Where a council or accredited certifier completes a complying development certificate, that certificate is not to be forwarded or delivered to the applicant, unless any long service levy payable under section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) has been paid.(11) Post-determination notification On the determination of an application for the issue of a complying development certificate:(a) the council or accredited certifier must notify the applicant of the determination, and(b) the accredited certifier must notify the council of the determination, and(c) if the determination is to issue a complying development certificate, the council or accredited certifier must notify any other person, if required to do so by the regulations, in accordance with the regulations.(12) For the purposes of subsection (7), development standard includes a provision of a development control plan that would be a development standard, within the meaning of section 4, if the provision were in an environmental planning instrument.s 85A: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 33, Sch 4.1 [2]; 1998 No 54, Schs 1.9 [13]–[15], 2.12 [5]; 1999 No 72, Sch 4 [4]; 2005 No 115, Sch 3.2 [7]; 2008 No 36, Schs 2.1 [23]–[25], 4.1 [8].
86 Commencement of complying development
(1) Erection of buildings The erection of a building in accordance with a complying development certificate must not be commenced until:(a) the person having the benefit of the complying development certificate has:(i) appointed a principal certifying authority for the building work, and(ii) notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and(a1) the principal certifying authority has, no later than 2 days before the building work commences:(i) notified the council of his or her appointment, and(ii) notified the person having the benefit of the complying development certificate of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and(a2) the person having the benefit of the complying development certificate, if not carrying out the work as an owner-builder, has:(i) appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and(ii) notified the principal certifying authority of any such appointment, and(iii) unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and(b) the person having the benefit of the complying development certificate has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the erection of the building.(2) Subdivision of land Subdivision work in accordance with a complying development certificate must not be commenced until:(a) the person having the benefit of the complying development certificate has appointed a principal certifying authority for the subdivision work, and(a1) the principal certifying authority has, no later than 2 days before the subdivision work commences, notified the council of his or her appointment, and(b) the person having the benefit of the complying development certificate has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the subdivision work.(3) Crown development Subsections (1) and (2) do not apply in relation to development carried out by the Crown.(4) Penalty for contravention of subsection (1) or (2) The maximum penalty that may be imposed for a contravention of subsection (1) or (2) is 300 penalty units.s 86: Ins 1997 No 152, Sch 1 [32]. Am 2003 No 95, Sch 1 [10]–[12]; 2008 No 36, Sch 4.1 [9].
86A Duration of complying development certificate
(1) A complying development certificate becomes effective and operates from the date endorsed on the certificate.(2) A complying development certificate lapses 5 years after the date endorsed on the certificate.(3) However, a complying development certificate does not lapse if the development to which it relates is physically commenced on the land to which the certificate applies within the period of 5 years after the date endorsed on the certificate.(4) No proceedings may be taken before a court or tribunal to extend the 5-year period.s 86A: Ins 1997 No 152, Sch 1 [32].
87 Modification of complying development
(1) A person who has made an application to carry out complying development and a person having the benefit of a complying development certificate may apply to modify the development the subject of the application or certificate.(2) This Division applies to an application to modify development in the same way as it applies to the original application.s 87: Ins 1997 No 152, Sch 1 [32].
Division 4 Crown developments
pt 4, div 4: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 43, Sch 1 [13]. Ins 2008 No 36, Sch 1.2 [27].
88 Definitions
(1) In this Division:applicable regional panel for development means the regional panel for the part of the State in which the development is to be carried out.Crown development application means a development application made by or on behalf of the Crown.regional panel means a joint regional planning panel.(2) A reference in this Division to the Crown:(a) includes a reference to a person who is prescribed by the regulations to be the Crown for the purposes of this Division, and(b) does not include a reference to:(i) a capacity of the Crown that is prescribed by the regulations not to be the Crown for the purposes of this Division, or(ii) a person who is prescribed by the regulations not to be the Crown for the purposes of this Division.ss 88–89A: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 43, Sch 1 [13]. Ins 2008 No 36, Sch 1.2 [27].
89 Determination of Crown development applications
(1) A consent authority (other than the Minister) must not:(a) refuse its consent to a Crown development application, except with the approval of the Minister, or(b) impose a condition on its consent to a Crown development application, except with the approval of the applicant or the Minister.(2) If the consent authority fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the consent authority may refer the application:(a) to the Minister, if the consent authority is not a council, or(b) to the applicable regional panel, if the consent authority is a council.(3) An applicable regional panel to which a Crown development application is referred may exercise the functions of the council as a consent authority (subject to subsection (1)) with respect to the application.(4) A decision by a regional panel in determining a Crown development application is taken for all purposes to be the decision of the council.(5) If an applicable regional panel fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the panel may refer the application to the Minister.(6) The party that refers an application under this section must notify the other party in writing that the application has been referred.(7) When an application is referred under this section to an applicable regional panel or the Minister, the consent authority must, as soon as practicable, submit to the panel or the Minister:(a) a copy of the development application, and(b) details of its proposed determination of the development application, and(c) the reasons for the proposed determination, and(d) any relevant reports of another public authority.ss 88–89A: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 43, Sch 1 [13]. Ins 2008 No 36, Sch 1.2 [27].
89A Directions by Minister
(1) On a referral being made by a consent authority or an applicable regional panel to the Minister under this Division, the Minister may direct the relevant consent authority, within the time specified in the direction:(a) to approve the Crown development application, with or without specified conditions, or(b) to refuse the Crown development application.(2) A consent authority must comply with a direction by the Minister.(3) If the consent authority fails to comply, the consent authority is taken, on the last date for compliance specified in the direction, to have determined the Crown development application in accordance with the Minister’s direction.(4) Despite subsection (2), a consent authority may vary a condition specified by the Minister with the approval of the applicant.ss 88–89A: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 43, Sch 1 [13]. Ins 2008 No 36, Sch 1.2 [27].
89B Modification of Crown development consents
This Division applies to an application made by or on behalf of the Crown under section 96 in the same way as it applies to an application for development consent.s 89B: Ins 2008 No 36, Sch 1.2 [27].
Division 5 Special procedure for integrated development
pt 4, div 5: Ins 1997 No 152, Sch 1 [32].
90 Application of this Division
(1) This Division applies to integrated development.(2) However, this Division does not apply to development the subject of a development application made by or on behalf of the Crown (within the meaning of Division 4), other than development that requires a heritage approval.s 90: Ins 1997 No 152, Sch 1 [32]. Am 2008 No 36, Sch 2.2 [33]; 2009 No 34, Sch 2 [4].
90A Definitions
In this Division:approval means a consent, licence, permit, permission or any form of authorisation.approval body means a person who may grant an approval.first renewal of an approval means, in the case of an environment protection licence under the Protection of the Environment Operations Act 1997, the first review of the licence under section 78.grant an approval includes give or issue an approval.heritage approval means an approval in respect of the doing or carrying out of an act, matter or thing referred to in section 57 (1) of the Heritage Act 1977.s 90A: Ins 1997 No 152, Sch 1 [32]. Am 1997 No 156, Sch 4.3 [2]; 2009 No 34, Sch 2 [5].
91 What is “integrated development”?
(1) Integrated development is development (not being complying development) that, in order for it to be carried out, requires development consent and one or more of the following approvals:
91A Development that is integrated development
(1) This section applies to the determination of a development application for development that is integrated development.(2) Before granting development consent to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such approval if the consent authority determines to refuse to grant development consent.(3) A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purposes of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval.(4) If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application.(5) If the approval body fails to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval, or of the general terms of its approval:(a) the consent authority may determine the development application, anddespite any other Act or law.(b) if the consent authority determines the development application by granting consent:(i) the approval body cannot refuse to grant approval to an application for approval in respect of the development, and(ii) an approval granted by the approval body must not be inconsistent with the development consent, and(iii) section 93 applies to an approval so granted as if it were an approval the general terms of which had been provided to the consent authority,(6) If a development application is determined, whether or not by the granting of development consent, the consent authority must notify all relevant approval bodies of the determination.Note—If a dispute arises under this section between a consent authority and an approval body, the dispute may be dealt with under section 121.s 91A: Ins 1997 No 152, Sch 1 [32]. Am 2005 No 43, Sch 1 [14].
92 Consent authority may not refuse certain development applications
(1) This section applies to the determination by a consent authority of a development application for development that is integrated development for which a heritage approval is required.(2) A consent authority must not refuse development consent on heritage grounds if the same development is the subject of a heritage approval.s 92: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 43, Sch 1 [15]. Ins 2009 No 34, Sch 2 [6].
92A Effect of giving notice
If, in relation to integrated development:(a) notice of a development application is given under section 79 or 79A, and(b) the consent authority obtains from an approval body the general terms of any approval proposed to be granted by the approval body in relation to the development or the approval body fails to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval or of the general terms of its approval, andthe notice is taken to be notice duly given for the purpose of any law that requires the giving of public notice in relation to an application for the approval of the approval body to that development.(c) the consent authority determines the application by granting consent,s 92A: Ins 1997 No 152, Sch 1 [32].
93 Granting and modification of approval by approval body
(1) Despite any other Act or law, an approval body must, in respect of integrated development for which development consent has been granted following the provision by the approval body of the general terms of the approval proposed to be granted by the approval body in relation to the development, grant approval to any application for approval that is made within 3 years after the date on which the development consent is granted if, within that 3-year period, the development consent has not lapsed or been revoked.(2) The approval may be granted subject to conditions that are not inconsistent with the development consent. Neither the provisions of section 80A (6)–(10) nor the imposition of conditions as to security by the consent authority prevent an approval body from imposing conditions, or additional conditions, as to security.(3) Subsection (1) does not apply to or limit the granting of approval to an application for renewal of an approval.(4) An approval body cannot vary the terms of an approval granted for integrated development for which development consent has been granted before the expiration, lapsing or first renewal of the approval, whichever first occurs, other than to make variations that are not inconsistent with the development consent.(5) Subsection (4) does not prevent:(a) the modification, in accordance with section 96 or 96A, of the development consent at any time, or(b) if a development consent is modified as referred to in paragraph (a) before the expiration, lapsing or first renewal, whichever first occurs, of the approval, the modification in accordance with law of the approval to any necessary consequential extent, or(c) the exercise by the approval body of any of its other functions, such as the issuing of orders, the suspension or cancellation of an approval or the prosecution of offences.s 93: Ins 1997 No 152, Sch 1 [32].
93A Effect of approval if the approval body is also a concurrence authority
If the concurrence of a person who is also an approval body is required before a consent authority may grant a development consent, the granting of the general terms of its approval is taken to also grant the concurrence provided that the matters to be considered in granting the general terms of its approval are the same as those required to be considered in deciding whether or not to grant the concurrence.s 93A: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 1.9 [17] [18].
93B Rights of appeal
(1) Applicant’s appeal rights This Division does not affect any right of objection, appeal or review conferred on an applicant for an approval under the Act that provides for the granting of the approval, except as provided by subsection (2).(2) Restriction on appellate body Despite any other Act or law, section 93 applies to a person, court or tribunal that deals with an objection, appeal or review referred to in this section in the same way as it applies to an approval body.s 93B: Ins 1997 No 152, Sch 1 [32].
Division 6 Development contributions
pt 4, div 6: Ins 1997 No 152, Sch 1 [32]. Subst 2005 No 19, Sch 1 [3].
Subdivision 1 Preliminary
pt 4, div 6, sdiv 1: Ins 2005 No 19, Sch 1 [3].
93C Definitions
In this Division:contributions plan means a contributions plan approved under section 94EA.development corporation means a development corporation constituted under Part 2 of the Growth Centres (Development Corporations) Act 1974.growth centre has the same meaning as it has in the Growth Centres (Development Corporations) Act 1974.planning agreement means a voluntary agreement referred to in section 93F.means:(a) a council, or(b) the Minister, or(c) the corporation, or(d) a development corporation (within the meaning of the Growth Centres (Development Corporations) Act 1974), or(e) a public authority declared by the regulations to be a planning authority for the purposes of this Division.public amenities or public services do not include water supply or sewerage services.special contributions area means land for the time being described in Schedule 5A.s 93C: Ins 2005 No 19, Sch 1 [3]. Am 2006 No 8, Sch 1 [3].
93D Relationship to planning instruments
This Division does not derogate from or otherwise affect any provision of an environmental planning instrument, whether made before or after the commencement of this section, that requires satisfactory arrangements to be made for the provision of particular kinds of public infrastructure, facilities or services before development is carried out.s 93D: Ins 2005 No 19, Sch 1 [3]. Am 2006 No 123, Sch 1 [34].
93E Provisions relating to money etc contributed under this Division (other than Subdivision 4)
(1) A consent authority or planning authority is to hold any monetary contribution or levy that is paid under this Division (other than Subdivision 4) in accordance with the conditions of a development consent or with a planning agreement for the purpose for which the payment was required, and apply the money towards that purpose within a reasonable time.(2) However, money paid under this Division (other than Subdivision 4) for different purposes in accordance with the conditions of development consents may be pooled and applied progressively for those purposes, subject to the requirements of any relevant contributions plan or ministerial direction under this Division (other than Subdivision 4).(3) Land dedicated in accordance with this Division (other than Subdivision 4) is to be made available by the consent authority or planning authority for the purpose for which the dedication was required and within a reasonable time.(4) A reference in this section to a monetary contribution or levy includes a reference to any additional amount earned from its investment.s 93E: Ins 2005 No 19, Sch 1 [3]. Am 2006 No 8, Sch 1 [4].
Subdivision 2 Planning agreements
pt 4, div 6, sdiv 2: Ins 2005 No 19, Sch 1 [3].
93F Planning agreements
(1) A planning agreement is a voluntary agreement or other arrangement under this Division between a planning authority (or 2 or more planning authorities) and a person (the developer):(a) who has sought a change to an environmental planning instrument, or(b) who has made, or proposes to make, a development application, orunder which the developer is required to dedicate land free of cost, pay a monetary contribution, or provide any other material public benefit, or any combination of them, to be used for or applied towards a public purpose.(c) who has entered into an agreement with, or is otherwise associated with, a person to whom paragraph (a) or (b) applies,(2) A public purpose includes (without limitation) any of the following:(a) the provision of (or the recoupment of the cost of providing) public amenities or public services,(b) the provision of (or the recoupment of the cost of providing) affordable housing,(c) the provision of (or the recoupment of the cost of providing) transport or other infrastructure relating to land,(d) the funding of recurrent expenditure relating to the provision of public amenities or public services, affordable housing or transport or other infrastructure,(e) the monitoring of the planning impacts of development,(f) the conservation or enhancement of the natural environment.(3) A planning agreement must provide for the following:(a) a description of the land to which the agreement applies,(b) a description of:(i) the change to the environmental planning instrument to which the agreement applies, or(ii) the development to which the agreement applies,(c) the nature and extent of the provision to be made by the developer under the agreement, the time or times by which the provision is to be made and the manner by which the provision is to be made,(d) in the case of development, whether the agreement excludes (wholly or in part) or does not exclude the application of section 94, 94A or 94EF to the development,(e) if the agreement does not exclude the application of section 94 to the development, whether benefits under the agreement are or are not to be taken into consideration in determining a development contribution under section 94,(f) a mechanism for the resolution of disputes under the agreement,(g) the enforcement of the agreement by a suitable means, such as the provision of a bond or guarantee, in the event of a breach of the agreement by the developer.(3A) A planning agreement cannot exclude the application of section 94 or 94A in respect of development unless the consent authority for the development or the Minister is a party to the agreement.(4) A provision of a planning agreement in respect of development is not invalid by reason only that there is no connection between the development and the object of expenditure of any money required to be paid by the provision.Note—See section 93E (1), which requires money paid under a planning agreement to be applied for the purpose for which it was paid within a reasonable time.(5) If a planning agreement excludes the application of section 94 or 94A to particular development, a consent authority cannot impose a condition of development consent in respect of that development under either of those sections (except in respect of the application of any part of those sections that is not excluded by the agreement).(5A) A planning authority, other than the Minister, is not to enter into a planning agreement excluding the application of section 94EF without the approval of:(a) the Minister, or(b) a development corporation designated by the Minister to give approvals under this subsection.(6) If a planning agreement excludes benefits under a planning agreement from being taken into consideration under section 94 in its application to development, section 94 (6) does not apply to any such benefit.(7) Any Minister, public authority or other person approved by the Minister is entitled to be an additional party to a planning agreement and to receive a benefit under the agreement on behalf of the State.(8) A council is not precluded from entering into a joint planning agreement with another council or other planning authority merely because it applies to any land not within, or any purposes not related to, the area of the council.(9) A planning agreement cannot impose an obligation on a planning authority:(a) to grant development consent, or(b) to exercise any function under this Act in relation to a change to an environmental planning instrument.(10) A planning agreement is void to the extent, if any, to which it requires or allows anything to be done that, when done, would breach this section or any other provision of this Act, or would breach the provisions of an environmental planning instrument or a development consent applying to the relevant land.(11) A reference in this section to a change to an environmental planning instrument includes a reference to the making or revocation of an environmental planning instrument.s 93F: Ins 2005 No 19, Sch 1 [3]. Am 2006 No 8, Sch 1 [5] [6]; 2006 No 123, Sch 1 [35].
93G Information about planning agreements
(1) A planning agreement cannot be entered into, and a planning agreement cannot be amended or revoked, unless public notice has been given of the proposed agreement, amendment or revocation, and a copy of the proposed agreement, amendment or revocation has been available for inspection by the public for a period of not less than 28 days.(2) The regulations may provide for the public notice to be given under subsection (1) and may provide that it may be given contemporaneously with, in association with, or as part of, any other public notice or public notification that is required to be given of any matter relevant to the planning agreement.(3) If the Minister is not a party to a planning agreement, the relevant planning authority that is a party to the agreement must provide to the Minister:(a) a copy of the agreement within 14 days after the agreement is entered into, and(b) if the agreement is amended, a copy of the amendment within 14 days after the amendment is made, and(c) if the agreement is revoked, notice of the revocation within 14 days after the revocation occurs.(4) If a council is not a party to a planning agreement that applies to the area of the council, the relevant planning authority that is a party to the agreement must provide to the council:(a) a copy of the agreement within 14 days after the agreement is entered into, and(b) if the agreement is amended, a copy of the amendment within 14 days after the amendment is made, and(c) if the agreement is revoked, notice of the revocation within 14 days after the revocation occurs.(5) A planning authority that has entered into one or more planning agreements must, while any such planning agreements remain in force, include in its annual report particulars of compliance with and the effect of the planning agreements during the year to which the report relates.s 93G: Ins 2005 No 19, Sch 1 [3].
93H Registered planning agreements to run with land
(1) A planning agreement can be registered under this section if the following persons agree to its registration:(a) if the agreement relates to land under the Real Property Act 1900—each person who has an estate or interest in the land registered under that Act, or(b) if the agreement relates to land not under the Real Property Act 1900—each person who is seised or possessed of an estate or interest in the land.(2) On lodgement by a planning authority of an application for registration in a form approved by the Registrar-General, the Registrar-General is to register the planning agreement:(a) by making an entry in the relevant folio of the Register kept under the Real Property Act 1900 if the agreement relates to land under that Act, or(b) by registering the agreement in the General Register of Deeds if the agreement relates to land not under the Real Property Act 1900.(3) A planning agreement that has been registered by the Registrar-General under this section is binding on, and is enforceable against, the owner of the land from time to time as if each owner for the time being had entered into the agreement.(4) A reference in this section to a planning agreement includes a reference to any amendment or revocation of a planning agreement.s 93H: Ins 2005 No 19, Sch 1 [3].
93I Circumstances in which planning agreements can or cannot be required to be made
(1) A provision of an environmental planning instrument (being a provision made after the commencement of this section):(a) that expressly requires a planning agreement to be entered into before a development application can be made, considered or determined, orhas no effect.(b) that expressly prevents a development consent from being granted or having effect unless or until a planning agreement is entered into,(2) A consent authority cannot refuse to grant development consent on the ground that a planning agreement has not been entered into in relation to the proposed development or that the developer has not offered to enter into such an agreement.(3) However, a consent authority can require a planning agreement to be entered into as a condition of a development consent, but only if it requires a planning agreement that is in the terms of an offer made by the developer in connection with:(a) the development application, oror that is in the terms of a commitment made by the proponent in a statement of commitments made under Part 3A.(b) a change to an environmental planning instrument sought by the developer for the purposes of making the development application,(4) In this section, planning agreement includes any agreement (however described) containing provisions similar to those that are contained in an agreement referred to in section 93F.s 93I: Ins 2005 No 19, Sch 1 [3]. Am 2006 No 123, Sch 1 [36].
93J Jurisdiction of Court with respect to planning agreements
(1) A person cannot appeal to the Court under this Act against the failure of a planning authority to enter into a planning agreement or against the terms of a planning agreement.(2) This section does not affect the jurisdiction of the Court under section 123.ss 93J–93L: Ins 2005 No 19, Sch 1 [3].
93K Determinations or directions by Minister
The Minister may, generally or in any particular case or class of cases, determine or direct any other planning authority as to:(a) the procedures to be followed in negotiating a planning agreement, or(b) the publication of those procedures, or(c) other standard requirements with respect to planning agreements.ss 93J–93L: Ins 2005 No 19, Sch 1 [3].
93L Regulations—planning agreements
The regulations may make provision for or with respect to planning agreements, including the following:(a) the form of planning agreements,(b) the subject-matter of planning agreements,(c) the making, amendment and revocation of planning agreements, including the giving of public notice and inspection by the public,(d) the public inspection of planning agreements after they have been made.ss 93J–93L: Ins 2005 No 19, Sch 1 [3].
Subdivision 3 Local infrastructure contributions
pt 4, div 6, sdiv 3, hdg: Ins 2005 No 19, Sch 1 [3]. Subst 2006 No 8, Sch 1 [7].
pt 4, div 6, sdiv 3: Ins 2005 No 19, Sch 1 [3].
94 Contribution towards provision or improvement of amenities or services
(1) If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring:(a) the dedication of land free of cost, oror both.(b) the payment of a monetary contribution,(2) A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned.(3) If:(a) a consent authority has, at any time, whether before or after the date of commencement of this Part, provided public amenities or public services within the area in preparation for or to facilitate the carrying out of development in the area, andthe consent authority may grant the development consent subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services (being the cost as indexed in accordance with the regulations).(b) development for which development consent is sought will, if carried out, benefit from the provision of those public amenities or public services,(4) A condition referred to in subsection (3) may be imposed only to require a reasonable contribution towards recoupment of the cost concerned.(5) The consent authority may accept:(a) the dedication of land in part or full satisfaction of a condition imposed in accordance with subsection (3), or(b) the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with subsection (1) or (3).(6) If a consent authority proposes to impose a condition in accordance with subsection (1) or (3) in respect of development, the consent authority must take into consideration any land, money or other material public benefit that the applicant has elsewhere dedicated or provided free of cost within the area (or any adjoining area) or previously paid to the consent authority, other than:(a) a benefit provided as a condition of the grant of development consent under this Act, or(b) a benefit excluded from consideration under section 93F (6).(7) If:(a) a condition imposed under subsection (1) or (3) in relation to development has been complied with, andthen, despite that other Act, compliance with the condition referred to in paragraph (a) is taken to have satisfied the requirement referred to in paragraph (b) to the extent of the value (determined, if the regulations so provide, in accordance with the regulations) of the land dedicated or the amount of money paid in compliance with the condition.(b) a public authority would, but for this subsection, be entitled under any other Act to require, in relation to or in connection with that development, a dedication of land or payment of money in respect of the provision of public amenities or public services or both,s 94: Ins 1997 No 152, Sch 1 [32]. Subst 2005 No 19, Sch 1 [3].
94A Fixed development consent levies
(1) A consent authority may impose, as a condition of development consent, a requirement that the applicant pay a levy of the percentage, authorised by a contributions plan, of the proposed cost of carrying out the development.(2) A consent authority cannot impose as a condition of the same development consent a condition under this section as well as a condition under section 94.(2A) A consent authority cannot impose a condition under this section in relation to development on land within a special contributions area without the approval of:(a) the Minister, or(b) a development corporation designated by the Minister to give approvals under this subsection.(3) Money required to be paid by a condition imposed under this section is to be applied towards the provision, extension or augmentation of public amenities or public services (or towards recouping the cost of their provision, extension or augmentation). The application of the money is subject to any relevant provisions of the contributions plan.(4) A condition imposed under this section is not invalid by reason only that there is no connection between the development the subject of the development consent and the object of expenditure of any money required to be paid by the condition.(5) The regulations may make provision for or with respect to levies under this section, including:(a) the means by which the proposed cost of carrying out development is to be estimated or determined, and(b) the maximum percentage of a levy.s 94A: Ins 1997 No 152, Sch 1 [32]. Am 2000 No 18, Sch 1.1. Subst 2005 No 19, Sch 1 [3]. Am 2006 No 8, Sch 1 [8].
94B Section 94 or 94A conditions subject to contributions plan
(1) A consent authority may impose a condition under section 94 or 94A only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division).(2) However, in the case of a consent authority other than a council:(a) the consent authority may impose a condition under section 94 or 94A even though it is not authorised (or of a kind allowed) by, or is not determined in accordance with, a contributions plan, but(b) the consent authority must, before imposing the condition, have regard to any contributions plan that applies to the whole or any part of the area in which development is to be carried out.(3) A condition under section 94 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction.(4) A condition under section 94A that is of a kind allowed by, and determined in accordance with, a contributions plan (or a direction of the Minister under this Division) may not be disallowed or amended by the Court on appeal.s 94B: Ins 1997 No 152, Sch 1 [32]. Subst 2005 No 19, Sch 1 [3].
94C Cross-boundary issues
(1) A condition may be imposed under section 94 or 94A for the benefit (or partly for the benefit) of an area that adjoins the local government area in which the development is to be carried out.(2) Any monetary contribution that is required to be paid under any such condition is to be apportioned among the relevant councils:(a) in accordance with any joint or other contributions plan approved by those councils, or(b) if provision is not made for the apportionment in any such plan—in accordance with the terms of the development consent for the development.(3) Any dispute between the councils concerned is to be referred to the Director-General and resolved in accordance with any direction given by the Director-General.s 94C: Ins 1997 No 152, Sch 1 [32]. Subst 2005 No 19, Sch 1 [3].
94CA Public service or public amenity may be provided outside NSW
A condition may, with the written approval of the Minister, be imposed under section 94 or 94A for the provision of a public amenity or public service on land in another State or Territory if the area in which the development the subject of the condition is to be carried out adjoins the other State or Territory.s 94CA: Ins 2006 No 123, Sch 1 [37].
94D Section 94 or 94A conditions imposed by Minister or Director-General in growth centres etc
(1) This section applies where the Minister or the Director-General, as the consent authority, imposes conditions under section 94 or 94A in relation to:(a) land within a growth centre, or(b) other land within one or more council areas.(2) This Division applies to land within a growth centre as if references in this Division to the area were references to the growth centre.(3) Any monetary contribution paid in accordance with a condition under section 94 or 94A:(a) must be paid by the Minister or Director-General to the corporation for the growth centre or to the councils of the areas concerned, and(b) must (together with any additional amount earned from its investment) be applied within a reasonable time for the purpose for which it was levied.(4) This section applies to the Minister as consent authority whether or not the Minister is the consent authority pursuant to section 88A.(5) (Repealed)s 94D: Ins 1997 No 152, Sch 1 [32]. Subst 2005 No 19, Sch 1 [3]. Am 2006 No 8, Sch 1 [9].
94E Directions by Minister
(1) The Minister may, generally or in any particular case or class of cases, direct a consent authority as to:(a) the public amenities and public services in relation to which a condition under section 94 may or may not be imposed, and(b) in the case of a condition under section 94 requiring the payment of a monetary contribution:(i) the means by which or the factors in relation to which the amount of the contribution may or may not be calculated or determined, and(ii) the maximum amount of any such contribution, and(c) the things that may or may not be accepted as a material public benefit for the purposes of a condition under section 94, and(d) the type or area of development in respect of which a condition under section 94A may be imposed and the maximum percentage of the levy, and(e) the use of monetary contributions or levies for purposes other than those for which they were paid, and(f) the preparation of joint contributions plans by two or more councils.(2) A consent authority to which a direction is given under this section must comply with the direction in accordance with its terms.(3) A consent authority must not, in granting development consent in relation to which a direction under this section applies, impose a condition that is not in accordance with the terms of the direction, despite the other provisions of this Division and despite the provisions of any contributions plan.s 94E: Ins 1997 No 152, Sch 1 [32]. Subst 2005 No 19, Sch 1 [3].
94EA Contributions plans—making
(1) A council, or two or more councils, may, subject to and in accordance with the regulations, prepare and approve a contributions plan for the purpose of imposing conditions under this Division (other than Subdivision 4).(2) If a contributions plan authorises the imposition of conditions under section 94A, the plan is to specify the type or area of development in respect of which a condition under section 94A may be imposed and is to preclude the imposition of a condition under section 94 in respect of that type or area of development.(2A) A contributions plan does not authorise the imposition of a condition under section 94 on a grant of development consent if the public amenities or public services to which that condition relates are, in whole or in part, infrastructure provided, or to be provided, in relation to the development out of contributions collected under Subdivision 4.(3) The regulations may make provision for or with respect to the preparation and approval of contributions plans, including the format, structure and subject-matter of plans.(4) A council is, as soon as practicable after approving a contributions plan, to provide the Minister with a copy of the plan.s 94EA: Ins 2005 No 19, Sch 1 [3]. Am 2006 No 8, Sch 1 [11]–[13].
94EAA Contributions plans—making, amendment or repeal by Minister
(1) The Minister may direct a council, in writing, to approve, amend or repeal a contributions plan in the time and manner specified in the direction.(2) The Minister may make, amend or repeal a contributions plan if:(a) a council fails to approve, amend or repeal the plan in accordance with a direction of the Minister under this section, or(b) a council consents in writing to the Minister making, amending or repealing the plan.The plan, the amended plan or the repeal of the plan has effect as if it had been approved, amended or repealed by the council.(3) The Minister in making, amending or repealing a contributions plan under this section is not subject to the regulations.(4) A person cannot appeal to the Court under this Act in respect of:(a) the making, amending or repealing of a contributions plan by or at the direction of the Minister under this section, ordespite section 94B (3) or any other provision of this Act.(b) the reasonableness in the particular circumstances of a condition under section 94 that is determined in accordance with any such contributions plan,s 94EAA: Ins 2006 No 8, Sch 1 [14].
94EB Contributions plans—judicial notice, validity etc
(1) Judicial notice is to be taken of a contributions plan and of the date on which the plan came into effect.(2) It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of a contributions plan have been complied with and performed.(3) The validity of any procedure required to be followed in making or approving a contributions plan is not to be questioned in any legal proceedings except those commenced in the Court by any person within 3 months after the date on which the plan came into effect.(4) The amendment or repeal, whether in whole or in part, of a contributions plan does not affect the previous operation of the plan or anything duly done under the plan.s 94EB: Ins 2005 No 19, Sch 1 [3].
94EC Contributions plans—complying development
(1) In relation to an application made to an accredited certifier for a complying development certificate, a contributions plan:(a) is to specify whether or not the accredited certifier must, if a complying development certificate is issued, impose a condition under section 94 or 94A, and(b) can only authorise the imposition by an accredited certifier of a condition under section 94 that requires the payment of a monetary contribution, and(c) must specify the amount of the monetary contribution or levy that an accredited certifier must so impose or the precise method by which the amount is to be determined.(1A) The imposition of a condition by an accredited certifier as authorised by a contributions plan is subject to compliance with any directions given under section 94E (1) (a), (b) or (d) with which a council would be required to comply if issuing the complying development certificate concerned.(2) This section does not limit anything for which a contributions plan may make provision in relation to a consent authority.s 94EC: Ins 2005 No 19, Sch 1 [3]. Am 2009 No 56, Sch 1.13 [4].
Subdivision 4 Special infrastructure contributions
pt 4, div 6, sdiv 4, hdg: Ins 2005 No 19, Sch 1 [3]. Rep 2006 No 8, Sch 1 [10]. Ins 2006 No 8, Sch 1 [15].
94ED Provision of infrastructure
(1) In this Subdivision, a reference to the provision of infrastructure includes a reference to:(a) the provision, extension and augmentation of (or the recoupment of the cost of providing, extending or augmenting) public amenities or public services, affordable housing and transport or other infrastructure relating to land, and(b) the funding of recurrent expenditure relating to the provision, extension and augmentation of public amenities or public services, affordable housing and transport or other infrastructure, and(c) the conservation or enhancement of the natural environment, andbut does not include a reference to water supply or sewerage services.(d) the Minister, corporation, Department or Director-General doing any one or more of the following:(i) carrying out of any research or investigation,(ii) preparing any report, study or instrument,(iii) doing any other matter or thing in connection with the exercise of any statutory function under this Act,(2) Subject to section 94EE (2) (c), infrastructure may be regarded as being provided in relation to development whether or not the infrastructure is provided on land within a special contributions area or within New South Wales.s 94ED: Ins 2006 No 8, Sch 1 [15]. Am 2006 No 123, Sch 1 [38] [39].
94EE Minister to determine development contributions
(1) The Minister is, subject to the regulations (if any), to determine the level and nature of development contributions to be imposed as conditions under this Subdivision for the provision of infrastructure in relation to a development or a class of development.(2) In determining the level and nature of development contributions:(a) the Minister is, as far as reasonably practicable, to make the contribution reasonable having regard to the cost of the provision of infrastructure in relation to the development or class of development, and(b) if the cost of that infrastructure exceeds $30 million—the Minister is to consult the Treasurer, and(c) the Minister is not to take into account infrastructure provided on land other than that within the relevant special contributions area, unless, in the opinion of the Minister, the provision of the infrastructure on such land arises as a result of the development or as a result of a class of development of which the development forms a part.(3) Despite subsection (2), the Minister may, if he or she sees fit, determine the level and nature of development contributions in the form of a levy of a percentage of the proposed cost of carrying out development or any class of development.(3A) The determination of the Minister is to identify what part (if any) of a development contribution, that is to be imposed as a condition under this Subdivision, is for the provision of infrastructure by a council or for any one or more of the matters set out in section 94ED (1) (d).(3B) Any part of a development contribution identified in accordance with subsection (3A):(a) is, for the purposes of Subdivision 5, taken not to be received by the consent authority under this Subdivision, and(b) is not to be taken into account in calculating the cost of infrastructure for the purposes of subsection (2) (b), and(c) is, if the part is identified as being for the provision of infrastructure by a council, to be provided to the council and is to be held and applied by the council in accordance with section 93E, and(d) is, if the part is identified as being for any one or more of the matters set out in section 94ED (1) (d), to be provided to the Department and is to be held and applied by the Department in accordance with section 93E.(4) In determining the level and nature of development contributions to be imposed as conditions under this Subdivision for development within a particular special contributions area (other than a growth centre), the Minister is to do one or more of the following:(a) consult with owners of land in the special contributions area and other relevant stakeholders,(b) publicly exhibit a proposal in relation to the level of development contributions and seek submissions within a reasonable time in relation to that proposal,(c) establish a panel that, in the Minister’s opinion, represents the interests of the various relevant stakeholders and consult with that panel.(5) The determination of the Minister:(a) is to contain reasons for the level and nature of the development contributions, and(b) is to be made publicly available by the Minister.(6) A person cannot appeal to the Court under this Act in respect of a determination of the Minister under this section.(7) Subsection (3A) does not limit any payments being made out of the Fund to a council or the Department under section 94EL (1) (a).s 94EE: Ins 2006 No 8, Sch 1 [15]. Am 2006 No 123, Sch 1 [40]; 2009 No 56, Sch 1.13 [5].
94EF Special infrastructure contributions
(1) The Minister may direct a consent authority, in relation to development or class of development on land within a special contributions area, to impose a condition (determined in accordance with section 94EE) on a grant of development consent in relation to that land.(2) If the Minister is the consent authority, the Minister may impose a condition referred to in subsection (1) without giving a direction under that subsection.(3) A consent authority to which a direction is given under this section must comply with the direction in accordance with its terms. If the consent authority fails to do so, the Minister may impose the condition, and it has effect as if it had been imposed by the consent authority.(4) A condition imposed under this section is in addition to any condition that the consent authority may impose under section 94 or 94A in relation to the development.(5) The consent authority may, subject to the consent of the Minister, accept:(a) the dedication of land in part or full satisfaction of a condition imposed in accordance with this section, or(b) the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with this section.(6) A person cannot appeal to the Court under this Act in respect of a direction of the Minister, or a condition imposed by a consent authority or the Minister, under this section.(7) A condition imposed by a consent authority or the Minister under this section cannot be modified without the approval of the Minister.s 94EF: Ins 2006 No 8, Sch 1 [15].
94EG Minister may make, amend or repeal special contributions areas
(1) The Minister may, by order published on the NSW legislation website, amend Schedule 5A for the purpose of:(a) creating a special contributions area, or(b) repealing a special contributions area, or(c) changing a special contributions area.(2) Any such order may contain savings and transitional provisions.(3) Any such order takes effect on the day that it is published on the NSW legislation website or such later date as may be specified in the order.(4) Before creating a special contributions area (other than a growth centre), the Minister is to consult with the peak industry organisations that the Minister considers to be relevant.s 94EG: Ins 2006 No 8, Sch 1 [15]. Am 2009 No 56, Sch 4.17 [1].
94EH Land contributed under this Subdivision
The Minister may direct a consent authority to sell all or part of any land it receives under this Subdivision or to transfer any such land to a public authority that is to provide, or has provided, infrastructure in relation to:(a) the development to which the land relates, or(b) the class of development to which that development belongs.s 94EH: Ins 2006 No 8, Sch 1 [15].
Subdivision 5 Establishment of Special Contributions Areas Infrastructure Fund
pt 4, div 6, sdiv 5 (ss 94EI–94EM): Ins 2006 No 8, Sch 1 [15].
94EI Definition
In this Subdivision:the Fund means the Special Contributions Areas Infrastructure Fund established under section 94EJ.pt 4, div 6, sdiv 5 (ss 94EI–94EM): Ins 2006 No 8, Sch 1 [15].
94EJ Establishment of Fund
(1) There is to be established in the Special Deposits Account a fund called the Special Contributions Areas Infrastructure Fund.(2) The Fund is to be administered by the Director-General. The Director-General is to consult the Secretary of the Treasury in relation to the administration of the Fund.pt 4, div 6, sdiv 5 (ss 94EI–94EM): Ins 2006 No 8, Sch 1 [15].
94EK Payments into Fund
The following is to be paid into the Fund:(a) monetary contributions received by a consent authority under Subdivision 4,(b) the proceeds of the sale of any land received by a consent authority under Subdivision 4,(c) any money appropriated by Parliament for the purposes of the Fund,(d) the proceeds of the investment of money in the Fund,(e) any other money required to be paid into the Fund by or under this or any other Act or the regulations under this Act.pt 4, div 6, sdiv 5 (ss 94EI–94EM): Ins 2006 No 8, Sch 1 [15].
94EL Payments out of Fund
(1) The following is to be paid from the Fund:(a) payments to public authorities for the provision of infrastructure in relation to development,(b) any money required to meet administrative expenses in relation to the Fund,(c) all other money directed or authorised to be paid from the Fund by this Act or by the regulations under this Act.(2) The assets of the Fund can only be applied for the purposes referred to in subsection (1).pt 4, div 6, sdiv 5 (ss 94EI–94EM): Ins 2006 No 8, Sch 1 [15].
94EM Investment of money in Fund
The money in the Fund may be invested:(a) in such manner as may be authorised by the Public Authorities (Financial Arrangements) Act 1987, or(b) if that Act does not confer power on the Department to invest the money, in any other manner approved by the Treasurer.pt 4, div 6, sdiv 5 (ss 94EI–94EM): Ins 2006 No 8, Sch 1 [15].
Division 6A Conditions requiring land or contributions for affordable housing
pt 4, div 6A: Ins 2000 No 29, Sch 1 [3].
94F Conditions requiring land or contributions for affordable housing
(1) This section applies with respect to a development application for consent to carry out development within an area if a State environmental planning policy identifies that there is a need for affordable housing within the area and:(a) the consent authority is satisfied that the proposed development will or is likely to reduce the availability of affordable housing within the area, or(b) the consent authority is satisfied that the proposed development will create a need for affordable housing within the area, or(c) the proposed development is allowed only because of the initial zoning of a site, or the rezoning of a site, or(d) the regulations provide for this section to apply to the application.(2) Subject to subsection (3), the consent authority may grant consent to a development application to which this section applies subject to a condition requiring:(a) the dedication of part of the land, or other land of the applicant, free of cost to be used for the purpose of providing affordable housing, oror both.(b) the payment of a monetary contribution to be used for the purpose of providing affordable housing,(3) A condition may be imposed under this section only if:(a) the condition complies with all relevant requirements made by a State environmental planning policy with respect to the imposition of conditions under this section, and(b) the condition is authorised to be imposed by a local environmental plan, and is in accordance with a scheme for dedications or contributions set out in or adopted by such a plan, and(c) the condition requires a reasonable dedication or contribution, having regard to the following:(i) the extent of the need in the area for affordable housing,(ii) the scale of the proposed development,(iii) any other dedication or contribution required to be made by the applicant under this section or section 94.(4) A consent authority that proposes to impose a condition in accordance with this section must take into consideration any land or other sum of money that the applicant has previously dedicated free of cost, or previously paid, for the purpose of affordable housing within the area otherwise than as a condition of a consent.(5) Nothing in this section prevents the imposition on a development consent of other conditions relating to the provision, maintenance or retention of affordable housing. Such conditions may require, but are not restricted to, the imposition of covenants (including positive covenants) or the entering into of contractual or other arrangements.(6) A condition is not to be imposed under this section in relation to development that is within a special contributions area (within the meaning of Division 6).s 94F: Ins 2000 No 29, Sch 1 [3]. Am 2006 No 8, Sch 1 [16]; 2008 No 36, Sch 1.2 [27].
94G Provision of affordable housing
(1) Land dedicated in accordance with a condition imposed under this Division must:(a) be made available by the consent authority for the purposes of affordable housing within a reasonable time, or(b) be transferred by the consent authority in accordance with any applicable direction under subsection (3).(2) A consent authority must:(a) hold any monetary contribution paid in accordance with a condition imposed under this Division (and any additional amount earned from its investment) for the purpose for which the payment was required and apply the money for the purposes of affordable housing in the area or an adjoining area within a reasonable time, or(b) pay the monetary contribution in accordance with any applicable direction under subsection (3).(3) The Minister may give a direction, that applies generally or in any particular case or class of cases, to a consent authority:(a) requiring it to transfer land to a person nominated by the Minister, if it imposes a condition under this Division requiring dedication of the land, or(b) requiring it to pay a monetary contribution to a person nominated by the Minister, if it imposes a condition under this Division requiring the payment of the monetary contribution.(4) A person nominated under this section by the Minister must:(a) make available any land transferred to the person under this Division for the purposes of affordable housing within a reasonable time, and(b) apply any monetary contribution paid to the person under this Division (and any additional amount earned from its investment) for the purposes of affordable housing in the area concerned or in an adjoining area within a reasonable time.s 94G: Ins 2000 No 29, Sch 1 [3].
Division 7 Post-consent provisions
pt 4, div 7: Ins 1997 No 152, Sch 1 [32].
95 Lapsing of consent
(1) A development consent lapses 5 years after the date from which it operates.(2) However, a consent authority may reduce that period of 5 years in granting development consent. This subsection does not apply to development consent granted to a staged development application under Division 2A for development that requires a subsequent development application and consent.(3) Such a reduction may not be made so as to cause:(a) a development consent to erect or demolish a building or to subdivide land to lapse within 2 years after the date from which the consent operates, or(b) a development consent of a kind prescribed by the regulations to lapse within the period prescribed by the regulations in relation to the consent.(3A) A reduction that has been made under subsection (2) is to be disregarded if:(a) the development consent operated before, and lapses after, the commencement of this subsection (or the development consent lapsed during the period commencing on 22 April 2010 and ending on the commencement of this subsection), or(b) the development consent operated before, and lapses after, a date after 1 July 2011 prescribed by the regulations.A reduction may not be made under subsection (2) during the period commencing on the commencement of this subsection and ending on 1 July 2011 or during any subsequent period prescribed by the regulations.(4) Development consent for:(a) the erection of a building, or(b) the subdivision of land, ordoes not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.(c) the carrying out of a work,(5) Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse.(6) Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 80 (3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority, within the period so specified.(7) The regulations may set out circumstances in which work is or is not taken to be physically commenced for the purposes of this section.s 95: Ins 1997 No 152, Sch 1 [32]. Am 2003 No 60, Sch 1 [1] [2]; 2005 No 43, Sch 3 [6]; 2006 No 123, Sch 1 [41]; 2010 No 25, sec 3 (1) (2).
95A Extension of lapsing period for 1 year
(1) If, in granting a development consent, the consent authority reduces the period after which the consent lapses to less than 5 years, the applicant or any other person entitled to act on the consent may apply to the consent authority, before the period expires, for an extension of 1 year.(2) The consent authority may grant the extension if satisfied that the applicant has shown good cause.(3) A person making an application under subsection (1) who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after it is made, may appeal to the Court, and the Court may determine the appeal.(4) An extension of 1 year granted under this section commences to run from the later of the following:(a) the date on which the consent would have lapsed but for the extension,(b) the date on which the consent authority granted the extension or, if the Court has allowed the extension in determining an appeal, the date on which the Court determined the appeal.(5) This section does not apply to complying development.s 95A: Ins 1997 No 152, Sch 1 [32]. Am 2005 No 43, Sch 1 [16].
95B (Repealed)
s 95B: Ins 2003 No 60, Sch 1 [3]. Rep 2005 No 43, Sch 1 [17].
96 Modification of consents—generally
(1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5), (6) and (7) do not apply to such a modification.(1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:(a) it is satisfied that the proposed modification is of minimal environmental impact, and(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and(c) it has notified the application in accordance with:(i) the regulations, if the regulations so require, or(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.Subsections (1), (2) and (5) do not apply to such a modification.(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and(c) it has notified the application in accordance with:(i) the regulations, if the regulations so require, or(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.Subsections (1) and (1A) do not apply to such a modification.(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.(5) Threatened species Development consent of the kind referred to in section 79B (3), or in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995, is not to be modified unless:(a) in the case of development referred to in section 79B (3)—the requirements of section 79B (3)–(7) have been complied with in relation to the proposed modification as if the application for the proposed modification were an application for development consent, or(b) in the case of development in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995—the applicant has made an application for modification of the biobanking statement in relation to the proposal and a new biobanking statement has been issued or the consent authority is satisfied that the modification will have no impact on biodiversity values (within the meaning of that Act).(6) Appeals An applicant who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after the application is made may appeal to the Court and the Court may determine the appeal.(6A) (Repealed)(7) Subsection (6) does not enable an appeal to be made against the determination of, or the failure to determine, an application to modify a development consent, being a development consent granted by the Court.(8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A) (c) or subsection (2) (b) and (c) are to be exercised by the relevant consent authority and not the Court.s 96: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 1.9 [19]; 1999 No 72, Sch 3 [2]–[9]; 2002 No 76, Sch 2 [5]; 2003 No 40, Sch 1.13 [3]–[6]; 2005 No 43, Schs 1 [18]–[20], 2 [18]; 2006 No 125, Sch 2.1 [5].
96AA Modification by consent authorities of consents granted by the Court
(1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if:(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and(b) it has notified the application in accordance with:(i) the regulations, if the regulations so require, and(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and(c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.(1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.(1B) Development consent of the kind referred to in section 79B (3), or in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995, is not to be modified unless:(a) in the case of development referred to in section 79B (3)—the requirements of section 79B (3)–(7) have been complied with in relation to the proposed modification as if the application for the proposed modification were an application for development consent, or(b) in the case of development in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995—the applicant has made an application for modification of the biobanking statement in relation to the proposal and a new biobanking statement has been issued or the consent authority is satisfied that the modification will have no impact on biodiversity values (within the meaning of that Act).(1C) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.(2) After determining an application for modification of a consent under this section, the consent authority must send a notice of its determination to each person who made a submission in respect of the application for modification.(3) An applicant who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after the application is made may appeal to the Court and the Court may determine the appeal.(4) A person who made a submission in respect of the application for modification and who is dissatisfied with the determination of the application by the consent authority may, in accordance with rules of court, apply to the Court for leave to appeal against the determination within 28 days after the date on which notice of the determination was given to the person and the Court may grant or refuse leave to appeal.s 96AA: Ins 2002 No 76, Sch 2 [6]. Am 2002 No 134, Sch 1.1 [14]; 2003 No 40, Sch 1.13 [7] [8]; 2005 No 43, Sch 2 [18]; 2006 No 125, Sch 2.1 [6].
96A Revocation or modification of development consent
(1) If at any time it appears to:(a) the Director-General, having regard to the provisions of any proposed State environmental planning policy, orthat any development for which consent under this Division is in force in relation to a development application should not be carried out or completed, or should not be carried out or completed except with modifications, the Director-General or council may, by instrument in writing, revoke or modify that consent.(b) a council (being the consent authority in relation to the development application referred to in this subsection), having regard to the provisions of any proposed local environmental plan,(2) This section applies to complying development for which a complying development certificate has been issued in the same way as it applies to development for which development consent has been granted and so applies to enable a council to revoke or modify a complying development certificate whether the certificate was issued by the council or by an accredited certifier.(3) Before revoking or modifying the consent, the Director-General or council must:(a) by notice in writing inform, in accordance with the regulations:(i) each person who in the Director-General’s or council’s opinion will be adversely affected by the revocation or modification of the consent, andof the intention to revoke or modify the consent, and(ii) such persons as may be prescribed by the regulations,(b) afford each such person the opportunity of appearing before the Director-General or council, or a person appointed by the Director-General or council, to show cause why the revocation or modification should not be effected.(4) The revocation or modification of a development consent takes effect, subject to this section, from the date on which the instrument referred to in subsection (1) is served on the owner of the land to which the consent applies.(5) Within 3 months after the date on which the revocation or modification of the consent takes effect, the applicant for the consent, or any other person entitled to rely on the consent, who is aggrieved by the revocation or modification may appeal to the Court, and the Court may determine the appeal.(6) The Court may determine the appeal by affirming, varying or cancelling the instrument of revocation or modification.(7) If a development consent is revoked or modified under this section, a person aggrieved by the revocation or modification is entitled to recover from:(a) the Government of New South Wales—if the Director-General is responsible for the issue of the instrument of revocation or modification, orcompensation for expenditure incurred pursuant to the consent during the period between the date on which the consent becomes effective and the date of service of the notice under subsection (3) which expenditure is rendered abortive by the revocation or modification of that consent.(b) the council—if the council is responsible for the issue of that instrument,(8) The Director-General or council must, on or as soon as practicable after the date on which the instrument referred to in subsection (1) is served on the owner of the land referred to in subsection (4), cause a copy of the instrument to be sent to each person who is, in the Director-General’s or council’s opinion, likely to be disadvantaged by the revocation or modification of the consent.(9) This section does not apply to or in respect of a consent granted by the Court or by the Minister.s 96A: Ins 1997 No 152, Sch 1 [32]. Am 2001 No 56, Sch 1.3 [1]; 2008 No 36, Sch 1.2 [28].
Division 8 Appeals and related matters
pt 4, div 8: Ins 1997 No 152, Sch 1 [32].
97 Appeal by an applicant—development applications
(1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant’s development application (including a determination on a review under section 82A) may appeal to the Court within 12 months after:(a) the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application, or(b) the date on which that application is taken to have been determined under section 82 (1).(2) An applicant who is dissatisfied with a decision that a consent authority, or a person specified by the consent authority, is not satisfied as to a matter, being a specified aspect of the development that is to be carried out to the satisfaction of the consent authority, or person, pursuant to a condition imposed under section 80A (2), may appeal to the Court within 12 months after:(a) the consent authority or person notifies the applicant of its decision, or(b) the date on which the applicant’s request is taken to have been determined under section 80A (3).(3) An applicant who is dissatisfied with a decision that a consent authority is not satisfied as to a matter, being a matter as to which it must be satisfied before a “deferred commencement” consent under section 80 (3) can operate, may appeal to the Court within 12 months after the consent authority notifies the applicant of its decision.(4) If an appeal has been made under this section relating to a development application for consent to carry out designated development, each objector to that application is to be given notice by the consent authority of that appeal and is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if he, she or it were a party to the appeal.(5) If:(a) an appeal has been made under this section relating to a development application, andthat Minister, public authority or approval body must be given notice by the consent authority of that appeal and is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if he, she or it were a party to the appeal.(b) the application is one:(i) in relation to which the concurrence of a Minister or public authority is required under this Act, or(ii) for consent to carry out integrated development that involves an approval body (within the meaning of Division 5),(6) An appeal under this section relating to a development application for consent to carry out designated development in respect of which an objection has been made in accordance with the regulations must not be heard by the Court until after the expiration of the time within which an objector may appeal to the Court under section 98.s 97: Ins 1997 No 152, Sch 1 [32].
97B Costs payable if amended development application filed
(1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment).(2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal.(3) The regulations may provide for circumstances in which subsection (2) does not apply.(4) This section has effect despite the provisions of any other Act or law.s 97B: Ins 2008 No 36, Sch 2.1 [37].
98 Appeal by an objector
(1) An objector who is dissatisfied with the determination of a consent authority to grant consent to a development application for designated development (including designated development that is integrated development) either unconditionally or subject to conditions may, within 28 days after the date on which notice of the determination was given in accordance with the regulations, and in accordance with rules of court, appeal to the Court.(2) If an appeal has been made under subsection (1), the person who made the development application and the consent authority referred to in that subsection are to be given notice of that appeal, in accordance with rules of court, and are entitled to be heard at the hearing of the appeal as parties to the appeal.(3) If:(a) an appeal has been made under subsection (1) relating to a development application, and(b) the consent authority referred to in subsection (1) is given notice of an appeal under that subsection, andthat Minister, public authority or approval body must be given notice of that appeal by the consent authority and is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if he, she or it were a party to the appeal.(c) the application is one:(i) in relation to which the concurrence of a Minister or public authority is required under this Act, or(ii) for consent to carry out integrated development that involves an approval body (within the meaning of Division 5),ss 98–99: Ins 1997 No 152, Sch 1 [32].
98A Appeal concerning security
(1) An applicant who is dissatisfied with:(a) a decision of a consent authority with respect to the provision (otherwise than by the imposition of a condition of development consent) of security of a kind referred to in section 80A (6), ormay appeal to the Court.(b) the failure or refusal of the consent authority to release a security held by it,Note—The right to appeal against the imposition of a condition of development consent is excluded from subsection (1) (a) so as not to duplicate the right of appeal conferred by section 97.(2) An appeal with respect to a decision referred to in subsection (1) (a) may be made within 12 months after the applicant received notice of the decision.(3) An appeal with respect to a failure or refusal referred to in subsection (1) (b) may be made:(a) except as provided by paragraph (b), within 6 months after the work to which the security relates has been completed, or(b) if the security is provided in respect of contingencies that may arise on or after completion of the work to which the security relates, not earlier than 6 months and not later than 12 months after the completion of the work.ss 98–99: Ins 1997 No 152, Sch 1 [32].
99 Joint hearing of certain appeals
(1) If an appeal is made under section 97 with respect to a development application, the appeal is, as far as practicable, to be heard together with any appeals under section 98 made with respect to the application.(2) Without affecting subsection (1), if 2 or more appeals are made under section 98 with respect to the same development application, the appeals are, as far as practicable, to be heard together.(3) If 2 or more appeals are made under section 96A (5) with respect to the same notice referred to in section 96A, the appeals are, as far as practicable, to be heard together.ss 98–99: Ins 1997 No 152, Sch 1 [32].
Division 9 Miscellaneous
pt 4, div 9: Ins 1997 No 152, Sch 1 [32].
100 Register of consents and certificates
(1) A council must, in the prescribed form and manner (if any), keep a register of:(a) applications for development consent, and(b) the determination of applications for development consent (including the terms of development consents granted under this Part), and(c) the determination of applications for complying development certificates (including the terms of complying development certificates issued under this Part), and(d) decisions on appeal from any determination made under this Part.(2) The register is to be available for public inspection, without charge, at the office of the council during ordinary office hours.s 100: Ins 1997 No 152, Sch 1 [32].
101 Validity of development consents and complying development certificates
If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.s 101: Ins 1997 No 152, Sch 1 [32].
102 Non-compliance with certain provisions regarding State significant development
(1) This section applies to a development consent granted, or purporting to be granted, by the Minister, before or after the commencement of this section.(2) The only requirements of this Act that are mandatory in connection with the validity of a development consent to which subsection (1) applies are as follows:(a) A requirement that a development application to carry out designated development and its accompanying information be publicly exhibited for the minimum period of time.(b) A requirement that a development application to carry out development, being development, other than designated development, to which some or all of the provisions of sections 84, 85, 86, 87 (1) and 90, as in force immediately before the commencement of this section, applied by virtue of an environmental planning instrument, as referred to in section 30 (4), as then in force, be publicly exhibited for the minimum period of time.(c) A requirement that a development application to carry out advertised development and its accompanying information be publicly exhibited for the minimum period of time prescribed by the regulations.s 102: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 2.12 [6].
103 Revocation or regrant of development consents after order of Court
(1) This section applies to a development consent granted, or purporting to be granted, by a consent authority, to which an order of suspension applies under section 25B of the Land and Environment Court Act 1979.(2) The consent authority may revoke a development consent to which this section applies, whether or not the terms imposed by the Court under section 25B of the Land and Environment Court Act 1979 have been complied with.(3) However, if the terms imposed by the Court have been substantially complied with, the consent authority may revoke the development consent to which this section applies and grant a new development consent with such alterations to the revoked consent as the consent authority thinks appropriate having regard to the terms themselves and to any matters arising in the course of complying with the terms. Such a grant of a development consent is referred to as a regrant of the consent.(4) No preliminary steps need be taken with regard to the regrant of a development consent under this section, other than those that are required to secure compliance with those terms.(5) Section 81 and such other provisions of this Act as may be prescribed by the regulations apply to development consents regranted under this section.s 103: Ins 1997 No 152, Sch 1 [32].
104 Appeals and other provisions relating to development consents after order of Court
(1) A development consent declared to be valid under section 25C of the Land and Environment Court Act 1979:(a) is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and(b) is operative as from the date the development consent originally took effect or purported to take effect, unless the Court otherwise orders.(2) A development consent declared under section 25C of the Land and Environment Court Act 1979 to be validly regranted:(a) is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and(b) takes effect from the date of the declaration or another date specified by the Court.s 104: Ins 1997 No 152, Sch 1 [32].
104A Voluntary surrender of development consent
(1) A development consent may be surrendered, subject to and in accordance with the regulations, by any person entitled to act on the consent.(2) A development consent may be surrendered under this section even if, on the making of an appeal under section 97 or 98, the consent has ceased to be, or does not become, effective as referred to in section 83 (2).s 104A: Ins 2003 No 60, Sch 1 [4].
105 Regulations—Part 4
(1) In addition to any other matters for or with respect to which regulations may be made for the purposes of this Part, the regulations may make provision for or with respect to the following:(a) any matter that is necessary or convenient to be done before making a development application,(b) the persons who may make development applications,(c) the making, consideration and determination of development applications that are made by or on behalf of the Crown, public authorities and persons prescribed by the regulations,(c1) requiring the New South Wales Aboriginal Land Council to consent to applications for the modification of development consents relating to land owned by Local Aboriginal Land Councils,(d) the form of development applications,(e) the documents and information required to accompany development applications, including documents that will assist the consent authority in assessing the environmental effects of development,(f) the fees for development applications,(g) the notification and advertising of development applications (and proposed development),(h) the form and contents of notices of development applications, the manner of giving notices and the persons to whom notices are to be given,(i) the requirement for consultation with, or obtaining the concurrence of, the Director-General, public authorities and other persons concerning proposed development,(j) the preparation, contents, form and submission of environmental impact statements and statements of environmental effects,(k) the documents and information required to accompany statements of environmental effects and environmental impact statements,(l) the making of submissions, by way of objection or otherwise, with respect to proposed development and the consideration of submissions,(m) the holding of inquiries into proposed development,(n) procedures concerning complying development, advertised development and designated development,(n1) authorising a consent authority or council to impose a fee with respect to the lodging of any complying development certificate with it, whether pursuant to a requirement made by or under this Act or otherwise,(o) procedures concerning integrated development,(p) notifications and notices for the purposes of sections 81A and 86,(p1) procedural matters in relation to the review, under section 82A, of determinations,(q) the modification of development consents, including the fees for applications for modification,(r) the periods within which specified aspects of the environmental planning control process must be completed and the variation of those periods,(s) the effect of a failure to comply with any requirement of the regulations,(t) the notification of applicants and persons making submissions (including by way of objection) of the determination of development applications, reasons for the determinations and any rights of appeal.(2) The regulations may provide that an applicant who is not entitled to copyright in a document forming part of or accompanying the development application or the application for a complying development certificate is taken to have indemnified all persons using the application and document in accordance with this Act against any claim or action in respect of breach of copyright.(3) The regulations may provide for the accreditation of building products and systems, including the following:(a) applications for accreditation,(b) the determination of applications for accreditation,(c) revocation of accreditation,(d) extension or renewal of accreditation,(e) the adoption, application or incorporation (whether with or without modification) of a scheme of accreditation (however described) of building products and systems,(f) the notification of consent authorities of information concerning accreditation (including accreditation referred to in paragraph (e)).(4) The regulations may provide for the adoption and application of the Building Code of Australia.(5) The regulations may make provision for or with respect to the remission of part of the fees for development applications to the Director-General for payment, in accordance with subsection (6), into the Building Professionals Board Fund established under the Building Professionals Act 2005.(6) The Director-General is to pay into the Building Professionals Board Fund established under the Building Professionals Act 2005 such part of the fees for development applications remitted to the Director-General:(a) as may be provided for in the regulations, or(b) subject to the regulations (if any), as the Minister directs to be paid into the Fund.s 105: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 1.9 [20]; 2003 No 40, Sch 1.13 [9]; 2003 No 95, Sch 1 [13]; 2005 No 43, Sch 3 [7]; 2005 No 115, Sch 3.2 [8]–[10]; 2009 No 58, Sch 2.2 [2].
105A Transitional—amendment to list of vulnerable species
(1) An amendment to the list of vulnerable species does not apply in respect of any development application made under section 78A before the amendment was made.(2) This section ceases to apply in respect of a development application if the application has not been determined by the consent authority at the end of the period of 12 months after the date the application was made under section 78A.(3) In this section:list of vulnerable species means Part 1 of Schedule 2 to the Threatened Species Conservation Act 1995 or, subject to section 5C, Schedule 5 to the Fisheries Management Act 1994.s 105A: Ins 2002 No 78, Sch 2.1 [10].
Division 10 Existing uses
pt 4, div 10: Ins 1997 No 152, Sch 1 [32].
106 Definition of “existing use”
In this Division, existing use means:(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, and(b) the use of a building, work or land:(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.s 106: Ins 1997 No 152, Sch 1 [32].
107 Continuance of and limitations on existing use
(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.(2) Nothing in subsection (1) authorises:(a) any alteration or extension to or rebuilding of a building or work, or(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or(e) the continuance of the use therein mentioned where that use is abandoned.(3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.s 107: Ins 1997 No 152, Sch 1 [32].
108 Regulations respecting existing use
(1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to:(a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and(b) the change of an existing use to another use, and(c) the enlargement or expansion or intensification of an existing use.(d) (Repealed)(2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.(3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.(4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 89 to a development application for consent to carry out prohibited development.s 108: Ins 1997 No 152, Sch 1 [32]. Am 1999 No 31, Sch 1.12 [1]; 2001 No 93, Sch 2 [7]; 2008 No 36, Sch 5.1 [3].
109 Continuance of and limitations on other lawful uses
(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.(2) Nothing in subsection (1) authorises:(a) any alteration or extension to or rebuilding of a building or work, or(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or(e) the continuance of the use therein mentioned where that use is abandoned.(3) Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.(4) (Repealed)s 109: Ins 1997 No 152, Sch 1 [32]. Am 2001 No 93, Sch 2 [8]; 2008 No 36, Sch 5.1 [4].
109A Uses unlawfully commenced
(1) The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except:(a) the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor, or(b) the granting of development consent to that use.(2) The continuation of a use of a building, work or land that was unlawfully commenced is, and is taken always to have been, development of the land within the meaning of and for the purposes of any deemed instrument referred to in Division 2 of Part 21 of Schedule 6 applying, or which at any time applied, to or in respect of the building, work or land.s 109A: Ins 1997 No 152, Sch 1 [32]. Am 2008 No 36, Sch 1.2 [29].
109B Saving of effect of existing consents
(1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.(2) This section:(a) applies to consents lawfully granted before or after the commencement of this Act, and(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and(c) has effect despite anything to the contrary in section 107 or 109.(3) This section is taken to have commenced on the commencement of this Act.s 109B: Ins 1997 No 152, Sch 1 [32].
Part 4A Certification of development
pt 4A: Ins 1997 No 152, Sch 1 [32].
Division 1 Certification of work and other matters
pt 4A, div 1, hdg: Ins 2008 No 36, Sch 2.2 [39].
109C Part 4A certificates
(1) The following certificates (known collectively as Part 4A certificates) may be issued for the purposes of this Part:(a) a compliance certificate, being a certificate to the effect that:(i) specified building work or subdivision work has been completed as specified in the certificate and complies with specified plans and specifications, or(ii) a condition with respect to specified building work or subdivision work (being a condition attached to a development consent or complying development certificate) has been duly complied with, or(iii) a specified building or proposed building has a specified classification identified in accordance with the Building Code of Australia, or(iv) any specified aspect of development complies with the requirements of any other provisions prescribed by the regulations, or(v) any specified aspect of development (including design of development) complies with standards or requirements specified in the certificate with respect to the development,(b) a construction certificate, being a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A (5),(c) an occupation certificate, being a certificate that authorises:(i) the occupation and use of a new building, or(ii) a change of building use for an existing building,(d) a subdivision certificate, being a certificate that authorises the registration of a plan of subdivision under Division 3 of Part 23 of the Conveyancing Act 1919.(1A) A single compliance certificate may deal with any number of matters, whether of the same or of a different kind.(2) An occupation certificate:(a) may be an interim certificate or a final certificate, and(b) may be issued for the whole or any part of a building.(3) If the regulations so provide, a construction certificate may be issued subject to conditions.(4) In this section:new building includes an altered portion of, or an extension to, an existing building.Notes—(1)Sections 109M and 109N prohibit the occupation or use of a new building, and the change of building use for an existing building, unless an occupation certificate has been issued for the building.(2)A plan of subdivision (whether or not the subdivision requires development consent) is not in registrable form for the purposes of the Conveyancing Act 1919 unless it is endorsed with a subdivision certificate issued under this Division. Plans prepared for the purposes of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 are not plans of subdivision within the meaning of section 195 of the Conveyancing Act 1919 and are therefore not subject to this Division. The regulations under the Conveyancing Act 1919 provide for the manner and form in which a plan of subdivision is to be endorsed for the purpose of enabling the plan to be registered under that Act.s 109C: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 1.9 [21]; 1999 No 72, Sch 4 [5]; 2003 No 95, Sch 1 [14].
109D Certifying authorities
(1) Subject to subsections (2) and (3), the following kinds of Part 4A certificate may be issued by the following kinds of persons:(a) a compliance certificate may be issued by a consent authority, the council or an accredited certifier,(b) a construction certificate may be issued by a consent authority, the council or an accredited certifier,(c) an occupation certificate may be issued by a consent authority, the council or an accredited certifier,(d) a subdivision certificate may be issued:(i) in the case of subdivision the subject of development consent, by the consent authority or the council,(ii) in the case of subdivision that is not the subject of development consent, by the council,(iii) in the case of subdivision carried out by or on behalf of the Crown or a prescribed person, by the Crown or prescribed person or by any person acting on behalf of the Crown or prescribed person,(iv) in the case of subdivision of a kind identified by an environmental planning instrument as one in respect of which an accredited certifier may be a certifying authority, by an accredited certifier.(1A) For the purposes of subsection (1) (d) (iv), an environmental planning instrument that identifies subdivision in respect of which a subdivision certificate may be issued by an accredited certifier may place restrictions on the issue of such certificates by accredited certifiers.(2) An occupation certificate must not be issued to authorise a person to commence occupation or use of a new building except by the principal certifying authority appointed for the erection of the building.(3) A subdivision certificate must not be issued for a subdivision involving subdivision work except by the principal certifying authority appointed for the carrying out of the subdivision work.(4) In this section:new building includes an altered portion of, or an extension to, an existing building.s 109D: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 1.9 [22] [23]; 2003 No 95, Sch 1 [15]–[17]; 2008 No 36, Sch 4.1 [12].
109E Principal certifying authorities
(1) The person having the benefit of a development consent or complying development certificate for development:(a) is to appoint a principal certifying authority in respect of building work involved in the development and a principal certifying authority in respect of subdivision work involved in the development, and(b) may appoint only the consent authority, the council or an accredited certifier as the principal certifying authority for the building work or subdivision work, and(c) may appoint the same principal certifying authority for both types of work or different certifying authorities.(1AA) The council must, if appointed under subsection (1), accept that appointment.(1A) Despite subsection (1), such an appointment may not be made by any contractor or other person who will carry out the building work or subdivision work unless the contractor or other person is the owner of the land on which the work is to be carried out.(2) Despite subsection (1), an accredited certifier must not be appointed as the principal certifying authority for subdivision work unless the subdivision to which the work relates is of a kind identified by an environmental planning instrument as one in respect of which an accredited certifier may be a certifying authority.(3) A principal certifying authority for building work or subdivision work to be carried out on a site is required to be satisfied:(a) that a construction certificate or complying development certificate has been issued for such of the building work or subdivision work as requires development consent and over which the principal certifying authority has control, before the work commences on the site, and(b) that the principal contractor for the work is the holder of the appropriate licence and is covered by the appropriate insurance, in each case if required by the Home Building Act 1989, before any residential building work over which the principal certifying authority has control commences on the site, unless the work is to be carried out by an owner-builder, and(c) that the owner-builder is the holder of any owner-builder permit required under the Home Building Act 1989, before an owner-builder commences on the site any residential building work over which the principal certifying authority has control, and(d) that building work or subdivision work on the site has been inspected by the principal certifying authority or another certifying authority on such occasions (if any) as are prescribed by the regulations and on such other occasions as may be required by the principal certifying authority, before the principal certifying authority issues an occupation certificate or subdivision certificate for the building or work, and(e) that any preconditions required by a development consent or complying development certificate to be met for the work before the issue of an occupation certificate or subdivision certificate have been met, before the principal certifying authority issues the occupation certificate or subdivision certificate.(4) A principal certifying authority must also comply with such other requirements of a like or different nature as may be imposed on principal certifying authorities by the regulations.Note—Section 81A prohibits the commencement of building work or subdivision work unless the consent authority has been notified of the appointment of a principal certifying authority for the work. Section 109D (2) prohibits the issue of an occupation certificate authorising the occupation and use of a new building except by the principal certifying authority appointed for the erection of the building. Section 109D (3) prohibits the issue of a subdivision certificate for a subdivision involving subdivision work except by the principal certifying authority appointed for the carrying out of the subdivision.s 109E: Ins 1997 No 152, Sch 1 [32]. Am 2003 No 95, Sch 1 [18] [19]; 2006 No 123, Sch 1 [42]; 2008 No 36, Sch 4.1 [13] [14].
109EA Replacement of principal certifying authorities
(1) A person may not be appointed to replace another person as the principal certifying authority for development unless:(a) the Building Professionals Board so approves in writing and the relevant council and consent authority are notified before the replacement occurs, or(b) the current principal certifying authority, the proposed principal certifying authority and a person who is eligible to appoint a principal certifying authority for the development agree.(2) An application to the Building Professionals Board for approval or a notification under subsection (1) is to be accompanied by the fee (if any) prescribed by the regulations under the Building Professionals Act 2005 and is to be in a form approved by the Board.(3) If the Building Professionals Board approves the appointment of the relevant council to replace another person as the principal certifying authority under subsection (1) (a), the council must accept that appointment.s 109EA: Ins 2003 No 95, Sch 1 [20]. Am 2006 No 123, Sch 1 [43]. Subst 2005 No 115, Sch 3.2 [11] (am 2006 No 123, Sch 3.1). Am 2008 No 36, Sch 4.1 [15].
109F Restriction on issue of construction certificates
(1) A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless:(a) the requirements of the regulations referred to in section 81A (5) have been complied with, and(b) any long service levy payable under section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) has been paid.(1A) A construction certificate has no effect if it is issued after the building work or subdivision work to which it relates is physically commenced on the land to which the relevant development consent applies.(2) A certifying authority must not refuse to issue a construction certificate on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations made for the purposes of Part 4.(3) A certifying authority and (but only in the case of a certifying authority that is a consent authority) an employee of a certifying authority do not incur any liability as a consequence of acting in accordance with subsection (2).s 109F: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 1.9 [24]; 1999 No 72, Sch 4 [6]; 2005 No 115, Sch 3.2 [12] [13]; 2006 No 123, Sch 1 [44].
109G Restriction on issue of compliance certificates
A compliance certificate of the kind referred to in section 109C (1) (a) (i) or (ii) must not be issued for any building work or subdivision work unless a development consent or complying development certificate is in force with respect to the building or subdivision to which the work relates.s 109G: Ins 1997 No 152, Sch 1 [32]. Am 2006 No 123, Sch 1 [44].
109H Restrictions on issue of occupation certificates
(1) There are two kinds of occupation certificates, as follows:(a) an interim occupation certificate that authorises a person to commence occupation or use of a partially completed new building, or to commence a new use of part of a building resulting from a change of building use for an existing building,(b) a final occupation certificate that authorises a person to commence occupation or use of a new building, or to commence a new use of a building resulting from a change of building use for an existing building.It is not necessary for an interim occupation certificate to be issued before a final occupation certificate is issued with respect to the same building.(2) An occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent or complying development certificate have been met.(3) An interim occupation certificate must not be issued to authorise a person to commence to occupy or use a partially completed new building unless:(a) a development consent or complying development certificate is in force with respect to the building, and(b) in the case of a building erected pursuant to a development consent but not a complying development certificate, a construction certificate has been issued with respect to the plans and specifications for the building, and(c) the partially completed building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and(d) such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with.(4) An interim occupation certificate must not be issued to authorise a person to commence a new use of part of a building resulting from a change of building use for an existing building unless:(a) a development consent or complying development certificate is in force with respect to the change of building use, and(b) the part of the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and(c) such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with.(5) A final occupation certificate must not be issued to authorise a person to commence occupation or use of a new building unless:(a) a development consent or complying development certificate is in force with respect to the building, and(b) in the case of a building erected pursuant to a development consent but not a complying development certificate, a construction certificate has been issued with respect to the plans and specifications for the building, and(c) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and(d) such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with.(6) A final occupation certificate must not be issued to authorise a person to commence a new use of a building resulting from a change of building use for an existing building unless:(a) a development consent or complying development certificate is in force with respect to the change of building use, and(b) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and(c) such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with.(7) In this section:new building includes an altered portion of, or an extension to, an existing building.s 109H: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 2.12 [7]; 2003 No 95, Sch 1 [21]–[23]. Subst 2006 No 123, Sch 1 [45].
109I Effect of occupation certificate on earlier occupation certificates
(1) A final occupation certificate for the whole of a building revokes any earlier occupation certificate for that building.(2) An interim occupation certificate for a part of a building additional to the part or parts in respect of which an earlier interim occupation certificate is in force:(a) revokes the earlier interim occupation certificate, and(b) applies to the part in respect of which it is issued and to the part or parts in respect of which the earlier interim occupation certificate was in force.(3) An occupation certificate (whether interim or final) for a part of a building revokes any earlier occupation certificate to the extent to which it applies to that part.s 109I: Ins 1997 No 152, Sch 1 [32].
109J Restriction on issue of subdivision certificates
(1) A subdivision certificate must not be issued for a subdivision unless:(a) the subdivision is not prohibited by or under this Act, and(b) in the case of subdivision that may not be carried out except with development consent, a development consent (or, in the case of complying development, a complying development certificate) is in force with respect to the subdivision, and(c) in the case of subdivision for which a development consent has been granted, the applicant has complied with all conditions of the consent that, by its terms, are required to be complied with before a subdivision certificate may be issued in relation to the plan of subdivision, and(d) in the case of subdivision for which a “deferred commencement” consent under section 80 (3) has been granted, the applicant has satisfied the consent authority concerning all matters as to which the consent authority must be satisfied before the consent can operate, and(e) in the case of subdivision that relates to land within a water supply authority’s area of operations, the applicant has obtained a certificate of compliance from the water supply authority with respect to the subdivision of the land, and(f) in the case of subdivision the subject of an order made by the Court under section 40 of the Land and Environment Court Act 1979 concerning the provision of drainage easements, all such drainage easements have been acquired by the council as referred to in that section, and(g) in the case of subdivision the subject of a development consent for which the consent authority is required by the regulations to notify any objector:(i) at least 28 days have elapsed since the objector was notified, or(ii) if an appeal has been made by the objector within that time, the appeal has been finally determined.(2) Without limiting subsection (1), a subdivision certificate must not be issued for a subdivision that involves subdivision work unless:(a) the work has been completed, or(b) agreement has been reached between the applicant for the certificate and the consent authority:(i) as to the payment by the applicant to the consent authority of the cost of carrying out the work, and(ii) as to when the work will be completed by the consent authority, or(c) agreement has been reached between the applicant for the certificate and the consent authority:(i) as to the security to be given by the applicant to the consent authority with respect to the work to be completed, and(ii) as to when the work will be completed by the applicant.(3) Subsection (2) does not prohibit the issue of a subdivision certificate for part only of land that may be subdivided in accordance with a development consent as long as the requirements of that subsection have been complied with in relation to that part.(4) In this section:certificate of compliance, in relation to a water supply authority, means a certificate of compliance issued by the water supply authority under the Act under which the water supply authority is constituted.means:(a) the Sydney Water Corporation, the Hunter Water Corporation or a water supply authority within the meaning of the Water Management Act 2000, or(b) a council or county council exercising water supply, sewerage or stormwater drainage functions under Division 2 of Part 3 of Chapter 6 of the Local Government Act 1993.s 109J: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 145, Sch 5.3; 1999 No 72, Sch 4 [7]; 2004 No 40, Sch 3.4. Subst 2006 No 123, Sch 1 [46].
109K Appeals against failure or refusal to issue Part 4A certificates
(1) An applicant for:(a) a construction certificate, or(b) a final occupation certificate, ormay appeal to the Court against a consent authority’s (or, in the case of a subdivision certificate for subdivision that is not the subject of development consent, a council’s) decision to refuse to issue such a certificate or to issue a construction certificate subject to conditions.(c) a subdivision certificate,(2) An appeal under this section is to be made within 12 months after the date on which the decision was made.(3) For the purposes only of an appeal under this section, a consent authority or council is taken to have made a decision to refuse to issue a certificate if, following an application for the certificate, it has failed to issue the certificate:(a) in the case of an application for a construction certificate:(i) if the application is made on or before the date on which its associated development application is determined, within the relevant period referred to in section 82 (1) in relation to the development the subject of the development application, or(ii) if the application is made after the date on which its associated development application is determined, within 28 days after the application for the construction certificate was made, or(b) in the case of an application for a final occupation certificate, within 14 days after the application was made, or(c) in the case of an application for a subdivision certificate for subdivision that does not constitute designated development:(i) within 14 days after the application was made, where development consent to the subdivision is required, or(ii) within 7 days after the application was made, where development consent to the subdivision is not required, or(d) in the case of an application for a subdivision certificate for subdivision that constitutes designated development:(i) within 14 days after the application was made, or(ii) within 14 days after the period in which an appeal may be made under section 98 against the granting of development consent to that development, orwhichever is the longer.(iii) if such an appeal is made, within 14 days after the final determination of the appeal,(4) Nothing in subsection (3) prevents a consent authority or council from determining an application for a construction certificate, occupation certificate or subdivision certificate after the expiration of the relevant period prescribed by that subsection.(5) A determination pursuant to subsection (4) does not, subject to subsection (6), prejudice or affect the continuance or determination of an appeal made under this section in respect of a determination that is taken by subsection (3) to have been made.(6) If a determination pursuant to subsection (4) is made by granting the certificate concerned, the consent authority or council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal (being an appeal made under this section in respect of a determination that is taken by subsection (3) to have been made) withdrawn at any time prior to the determination of that appeal.s 109K: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 1.9 [25]–[27].
109L Accredited certifiers may issue notices requiring work to be carried out
(1) An accredited certifier who is the principal certifying authority for any development may, by notice served on a person on whom an order under section 121B may be served, direct that person to do anything that the consent authority could require that person to do by means of such an order.(2) A notice under this section has the same effect as a notice referred to in section 121H (1), and the provisions of Division 2A of Part 6 have effect accordingly:(a) subject to the accredited certifier being:(i) present when representations are made under section 121I, and(ii) entitled to make representations to the consent authority or nominated person to whom the representations under section 121I are made, and(iii) entitled to have the representations made by the accredited certifier heard and considered under section 121J in the same way as the representations under section 121I are heard and considered, and(b) subject to such other modifications as the regulations may prescribe.(3) Within 2 working days after the date on which an accredited certifier serves a notice under this section, the accredited certifier must send copies of the notice:(a) to the council, and(b) if the development is the subject of development consent given by a consent authority other than the council, to the consent authority, and(c) if the person on whom the notice is served is not the owner of the land on which the development is being carried out, to the owner of the land.s 109L: Ins 1997 No 152, Sch 1 [32].
109M Occupation and use of new building requires occupation certificate
(1) A person must not commence occupation or use of the whole or any part of a new building (within the meaning of section 109H) unless an occupation certificate has been issued in relation to the building or part.Maximum penalty:(a) in the case of a class 1a or class 10 building, as referred to in the Building Code of Australia—5 penalty units, or(b) in the case of any other building—1,000 penalty units.(2) This section does not apply to:(a) the occupation or use of a new building for any purpose if the erection of the building is or forms part of exempt development or development that does not otherwise require development consent, or(b) the occupation or use of a new building at any time after the expiration of 12 months after the date on which the building was first occupied or used, or(c) the occupation or use of a new building by such persons or in such circumstances as may be prescribed by the regulations, or(d) the occupation or use of a new building that has been erected by or on behalf of the Crown or by or on behalf of a prescribed person.s 109M: Ins 1997 No 152, Sch 1 [32]. Am 2003 No 95, Sch 1 [24]; 2006 No 123, Sch 1 [47].
109N Change of building use of existing building requires occupation certificate
(1) A person must not effect a change of building use for the whole or any part of an existing building unless an occupation certificate has been issued in relation to the building or part.Maximum penalty: 25 penalty units.(2) This section does not apply to:(a) a change of building use of an existing building if the change of building use is or forms part of exempt development or development that does not otherwise require development consent, or(b) the continued occupation or use of a building at any time after the expiration of 12 months after the date on which the building was first occupied or used, or(c) a change of building use of an existing building by such persons or in such circumstances as may be prescribed by the regulations, or(d) a change of building use of an existing building that has been erected by or on behalf of the Crown or by or on behalf of a prescribed person.s 109N: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 2.12 [8]; 2003 No 95, Sch 1 [25].
109O Certifying authorities may be satisfied as to certain matters
(1) For the purpose of enabling a Part 4A certificate or a complying development certificate to be issued by a certifying authority, the regulations may provide that any requirement for a consent authority or council to be satisfied as to any specified matter (or any matter of a specified class of matters) is taken to have been complied with if the certifying authority is satisfied as to that matter.(2) This section applies whether the requirement is imposed by or under:(a) this Act, the regulations or an environmental planning instrument, or(b) the terms of a development consent or complying development certificate.s 109O: Ins 1997 No 152, Sch 1 [32].
109P Satisfaction as to compliance with conditions precedent to the issue of certificates
(1) A person who exercises functions under this Act in reliance on a Part 4A certificate or a complying development certificate is entitled to assume:(a) that the certificate has been duly issued, and(b) that all conditions precedent to the issuing of the certificate have been duly complied with, andand is not liable for any loss or damage arising from any matter in respect of which the certificate has been issued.(c) that all things that are stated in the certificate as existing or having been done do exist or have been done,(2) This section does not apply to an accredited certifier in relation to any Part 4A certificate or complying development certificate that he or she has issued.s 109P: Ins 1997 No 152, Sch 1 [32].
109Q Regulations under Part 4A
(1) In addition to any other matters for or with respect to which regulations may be made for the purposes of this Part, the regulations may make provision for or with respect to the following:(a) the documents to be provided to, and the matters to be notified to, a consent authority, council or certifying authority for the purposes of this Part,(b) the records to be kept by certifying authorities under this Part,(c) applications for Part 4A certificates,(d) the form and content of Part 4A certificates,(e) the manner in which complaints in respect of development are to be dealt with by certifying authorities.(2) In particular, the regulations may authorise a consent authority or council to impose a fee with respect to any Part 4A certificate that is lodged with it, whether pursuant to a requirement of this Act or the regulations or otherwise.s 109Q: Ins 1997 No 152, Sch 1 [32]. Am 2003 No 95, Sch 1 [26]; 2008 No 36, Sch 4.1 [20] [21].
Division 2 Crown building work and other Crown development
pt 4A, div 2, hdg: Ins 2008 No 36, Sch 2.2 [46].
109R Building, demolition and incidental work
(1) In this section:Crown has the same meaning as it has in Division 4 of Part 4.Crown building work means development (other than exempt development), or an activity within the meaning of Part 5, by the Crown that comprises:(a) the erection of a building, or(b) the demolition of a building or work, or(c) the doing of anything that is incidental to the erection of a building or the demolition of a building or work.technical provisions of the State’s building laws means those provisions of:(a) the regulations, orthat are prescribed by the regulations to be technical provisions of the State’s building laws for the purposes of this section.(b) a publication, the provisions of which have been applied, adopted or incorporated by the regulations,(2) Crown building work cannot be commenced to be carried out unless the Crown building work is certified by or on behalf of the Crown to comply with the technical provisions of the State’s building laws in force as at:(a) the date of the invitation for tenders to carry out the Crown building work, or(b) in the absence of tenders, the date on which the carrying out of the Crown building work commences, except as provided by this section.(3) A Minister, by order in writing, may at any time determine in relation to buildings generally or a specified building or buildings of a specified class that a specified technical provision of the State’s building laws:(a) does not apply, or(b) does apply, but with such exceptions and modifications as may be specified.(4) A determination of a Minister applies only to:(a) a building erected on behalf of the Minister, or(b) a building erected by or on behalf of a person appointed, constituted or regulated by or under an Act administered by the Minister.(5) A determination of a Minister has effect according to its tenor.(6) (Repealed)s 109R (previously s 116G; previously sec 115M): Ins 1997 No 152, Sch 1 [34]. Am 1998 No 54, Sch 1.9 [30]; 1998 No 120, Sch 1.15 [3]. Renumbered 2000 No 86, Sch 1 [2]. Am 2003 No 95, Sch 1 [35]; 2008 No 36, Sch 2.2 [56]. Renumbered 2009 No 36, Sch 2.2 [58].pt 4B, div 1 (s 109R): Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 115, Sch 3.2 [14].
109S (Repealed)
s 109S (previously s 116GA): Ins 2001 No 93, Sch 2 [9]. Am 2008 No 36, Sch 2.2 [57]. Renumbered 2009 No 36, Sch 2.2 [58]. Rep 2008 No 36, Sch 5.1 [5].
s 109S: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 115, Sch 3.2 [14].
Part 4B
109T–109ZH (Repealed)
pt 4B: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 115, Sch 3.2 [14].
pt 4B, div 1 (s 109R): Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 115, Sch 3.2 [14].
pt 4B, div 2: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 115, Sch 3.2 [14].
s 109T: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 1.9 [28]; 1999 No 38, Sch 2 [1]; 2003 No 95, Sch 1 [27]. Rep 2005 No 115, Sch 3.2 [14].
s 109U: Ins 1997 No 152, Sch 1 [32]. Am 1999 No 38, Sch 2 [2] [3]. Rep 2003 No 95, Sch 1 [29].
pt 4B, div 3: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 115, Sch 3.2 [14].
ss 109V–109Y: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 115, Sch 3.2 [14].
s 109Z: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 2.12 [9]. Rep 2005 No 115, Sch 3.2 [14].
s 109ZA: Ins 1997 No 152, Sch 1 [32]. Am 2003 No 95, Sch 1 [30] [31]. Rep 2005 No 115, Sch 3.2 [14].
ss 109ZB–109ZE: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 115, Sch 3.2 [14].
s 109ZF: Ins 1997 No 152, Sch 1 [32]. Am 2003 No 95, Sch 1 [32]. Rep 2005 No 115, Sch 3.2 [14].
pt 4B, div 4: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 115, Sch 3.2 [14].
s 109ZG: Ins 1997 No 152, Sch 1 [32]. Am 1999 No 72, Sch 4 [8]; 2003 No 95, Sch 1 [33]. Rep 2005 No 115, Sch 3.2 [14].
s 109ZH: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 115, Sch 3.2 [14].
Part 4C Liability and insurance
pt 4C: Ins 1997 No 152, Sch 1 [32].
Division 1 Preliminary
pt 4C, div 1 (s 109ZI): Ins 1997 No 152, Sch 1 [32].
109ZI Definitions
In this Part:building action means an action (including a counter-claim) for loss or damage arising out of or concerning defective building work.building work includes the design, inspection and issuing of a Part 4A certificate or complying development certificate in respect of building work.subdivision action means an action (including a counter-claim) for loss or damage arising out of or concerning defective subdivision work.subdivision work includes the design, inspection and issuing of a Part 4A certificate or complying development certificate in respect of subdivision work.pt 4C, div 1 (s 109ZI): Ins 1997 No 152, Sch 1 [32].
Division 2 Liability
pt 4C, div 2: Ins 1997 No 152, Sch 1 [32].
109ZJ (Repealed)
s 109ZJ: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 2.12 [10]; 1999 No 72, Sch 4 [9]. Rep 2002 No 92, Sch 4.2.
109ZK Limitation on time when building action or subdivision action may be brought
(1) Despite any Act or law to the contrary, a building action may not be brought in relation to any building work:(a) more than 10 years after the date on which the relevant final occupation certificate is issued, or(b) in a case where no final occupation certificate is issued, more than 10 years after:(i) the last date on which the building work was inspected by a certifying authority, or(ii) if no such inspection has been conducted, the date on which that part of the building in relation to which the building work was carried out is first occupied or used.(1A) Despite any Act or law to the contrary, a subdivision action may not be brought in relation to any subdivision work more than 10 years after:(a) in the case of work completed before the relevant subdivision certificate is issued, the date on which the relevant subdivision certificate is issued, or(b) in the case of work completed after the relevant subdivision certificate is issued, the date on which the compliance certificate that certifies that the work has been completed is issued.(2) This section does not operate to extend any period of limitation under the Limitation Act 1969.s 109ZK: Ins 1997 No 152, Sch 1 [32]. Am 2008 No 36, Sch 4.1 [22].
109ZL Division not to affect rights to recover damages for death or personal injury
Nothing in this Division applies to or affects any right to recover damages for death or personal injury arising out of or concerning defective building work or subdivision work.s 109ZL: Ins 1997 No 152, Sch 1 [32].
Division 3
109ZM–109ZP (Repealed)
pt 4C, div 3: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 115, Sch 3.2 [15].
s 109ZM: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 115, Sch 3.2 [15].
s 109ZN: Ins 1997 No 152, Sch 1 [32]. Am 2003 No 95, Sch 1 [34]. Rep 2005 No 115, Sch 3.2 [15].
s 109ZO: Ins 1997 No 152, Sch 1 [32]. Rep 2005 No 115, Sch 3.2 [15].
s 109ZP: Ins 1997 No 152, Sch 1 [32]. Am 1998 No 54, Sch 1.9 [29]. Rep 2005 No 115, Sch 3.2 [15].
Part 5 Environmental assessment
Division 1 Preliminary
pt 5, div 1, hdg: Ins 1993 No 93, Sch 1 (2).
110 Definitions
(1) In this Part:activity means:(a) the use of land, and(b) the subdivision of land, and(c) the erection of a building, and(d) the carrying out of a work, and(e) the demolition of a building or work, andbut does not include:(f) any other act, matter or thing referred to in section 26 that is prescribed by the regulations for the purposes of this definition,(g) any act, matter or thing for which development consent under Part 4 is required or has been obtained, or(h) any act matter or thing that is prohibited under an environmental planning instrument, or(i) exempt development, or(j) development carried out in compliance with an order under Division 2A of Part 6, or(k) any development of a class or description that is prescribed by the regulations for the purposes of this definition.approval includes:(a) a consent, licence or permission or any form of authorisation, and(b) a provision of financial accommodation by a determining authority to another person, not being a provision of such financial accommodation, or financial accommodation of such class or description, as may be prescribed for the purposes of this definition by a determining authority so prescribed.means a Minister or public authority and, in relation to any activity, means the Minister or public authority by or on whose behalf the activity is or is to be carried out or any Minister or public authority whose approval is required in order to enable the activity to be carried out., in relation to an activity, means the determining authority nominated by the Minister in accordance with section 110A in relation to the activity.proponent, in relation to an activity, means the person proposing to carry out the activity, and includes any person taken to be the proponent of the activity by virtue of section 110B.(2) The Minister is not a determining authority in relation to an activity for the purposes of this Part merely because the Minister’s approval is required under Part 3A.s 110: Subst 1985 No 228, Sch 6 (1). Am 1993 No 93, Sch 1 (3); 1997 No 152, Sch 1 [33]; 2005 No 43, Sch 1 [21].
110A Nomination of nominated determining authority
(1) Where the approval of more than one determining authority is required in relation to an activity or an activity of a specified class or description (either in respect of the carrying out of the activity or the granting of an approval in respect of the activity), the Minister may, by order published in the Gazette and in a newspaper circulating throughout the State, nominate a determining authority to be the nominated determining authority in relation to the activity or an activity of that class or description for the purposes of this Part.(2) Where, under subsection (1), the Minister has nominated a determining authority to be the nominated determining authority in relation to an activity or an activity of a specified class or description, any other determining authority which would otherwise be required to comply with the provisions of this Part in relation to the activity or an activity of that class or description is not required:(a) to comply with section 112 (2) or (3), orin relation to the activity or any activity which comes within that class or description but shall, in all other respects, comply with the relevant provisions of this Part.(b) to comply with section 113,(3) A determining authority (other than the nominated determining authority) is required to forward to the nominated determining authority a copy of any submissions made to it under section 113 (2) and to provide other information to the nominated determining authority, as required by the regulations, to enable the nominated determining authority to co-ordinate the preparation and furnishing of reports in relation to the activity or activity of the specified class or description.s 110A: Ins 1985 No 228, Sch 6 (1). Am 2005 No 43, Sch 4 [1] [2].
110B Determining authorities taken to be proponents of activities
(1) A proponent of an activity for the purposes of this Part is taken to include the following:(a) the Forestry Commission in respect of forestry activities authorised by that Commission on land under the management of that Commission,(b) any determining authority which the Minister certifies in writing to be the proponent of a particular activity specified in the certificate or which the regulations declare to be the proponent of activities of the kind specified in the regulations.(2) In any such case, a reference in this Part to a determining authority carrying out an activity includes a reference to the Forestry Commission or such a determining authority granting an approval in relation to the activity.s 110B: Ins 1993 No 93, Sch 1 (4).
110C Determining authorities to have regard to register of critical habitat
Each determining authority must, for the purpose of exercising functions under this Part, have regard to the register of critical habitat kept by the Director-General of the Department of Environment, Climate Change and Water under the Threatened Species Conservation Act 1995.s 110C: Ins 1995 No 101, Sch 5 [20]. Am 2009 No 106, Sch 2.11 [1].
110D Transitional—amendment of list of vulnerable species
(1) For the purposes of Divisions 2 and 3 of this Part, an amendment to the list of vulnerable species does not apply in respect of an activity if:(a) an environmental impact statement was obtained in relation to that activity in accordance with this Part before the amendment was made, and(b) notice of the environmental impact statement has been given as provided for by section 113 (1).(2) Subsection (1) ceases to apply in respect of an activity if the activity has not commenced to be carried out, or an approval in relation to the activity has not been granted, by a determining authority at the end of the period of 12 months after the date the notice of the environmental impact statement was given under section 113 (1).(3), (4) (Repealed)(5) In this section:list of vulnerable species means Part 1 of Schedule 2 to the Threatened Species Conservation Act 1995 or, subject to section 5C, Schedule 5 to the Fisheries Management Act 1994.s 110D: Ins 2002 No 78, Sch 2.1 [11]. Am 2005 No 43, Sch 1 [22].
110E Exemptions for certain activities
Sections 111 and 112 do not apply to or in respect of the following (despite the terms of those sections):(a) a modification of an activity, whose environmental impact has already been considered, that will reduce its overall environmental impact,(b) a routine activity (such as the maintenance of infrastructure) that the Minister determines has a low environmental impact and that is carried out in accordance with a code approved by the Minister,(c) an activity (or part of an activity) that has been approved, or is to be carried out, by another determining authority after environmental assessment in accordance with this Part.s 110E: Ins 2006 No 123, Sch 1 [48].
Division 2 Duty of determining authorities to consider environmental impact of activities
pt 5, div 2, hdg: Ins 1993 No 93, Sch 1 (5).
111 Duty to consider environmental impact
(1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.(2) Without limiting subsection (1), a determining authority shall consider the effect of an activity on:(a) any conservation agreement entered into under the National Parks and Wildlife Act 1974 and applying to the whole or part of the land to which the activity relates, and(b) any plan of management adopted under that Act for the conservation area to which the agreement relates, and(c) any joint management agreement entered into under the Threatened Species Conservation Act 1995, and(d) any biobanking agreement entered into under Part 7A of the Threatened Species Conservation Act 1995 that applies to the whole or part of the land to which the activity relates.(3) Without limiting subsection (1), a determining authority shall consider the effect of an activity on any wilderness area (within the meaning of the Wilderness Act 1987) in the locality in which the activity is intended to be carried on.(4) Without limiting subsection (1), a determining authority must consider the effect of an activity on:(a) critical habitat, and(b) in the case of threatened species, populations and ecological communities, and their habitats, whether there is likely to be a significant effect on those species, populations or ecological communities, or those habitats, and(c) any other protected fauna or protected native plants within the meaning of the National Parks and Wildlife Act 1974.Note—The determining authority is not required to consider the effect of an activity on biodiversity values if:(a) the activity is to be carried out on biodiversity certified land (within the meaning of Part 7AA of the Threatened Species Conservation Act 1995), or(b) a biobanking statement has been issued in respect of the activity under Part 7A of the Threatened Species Conservation Act 1995.s 111: Am 1987 No 159, Sch 1; 1987 No 197, Sch 2; 1995 No 101, Sch 5 [21] [22]; 2006 No 125, Sch 2.1 [7] [8]; 2010 No 39, Sch 2.1 [4].
111A (Repealed)
s 111A: Ins 2005 No 43, Sch 4 [3]. Rep 2006 No 123, Sch 1 [49].
Division 3 Activities for which EIS required
pt 5, div 3, hdg: Ins 1993 No 93, Sch 1 (6).
112 Decision of determining authority in relation to certain activities
(1) A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, unless:(a) the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity:(i) prepared in the prescribed form and manner by or on behalf of the proponent, and(ii) except where the proponent is the determining authority, submitted to the determining authority in the prescribed manner,(b) notice referred to in section 113 (1) has been duly given by the determining authority (or, where a nominated determining authority has been nominated in relation to the activity, by the nominated determining authority), the period specified in the notice has expired and the determining authority has examined and considered any representations made to it or any other determining authority in accordance with section 113 (2),(c) the determining authority has complied with section 113 (3),(c1) (Repealed)(d) where it receives notice from the Director-General that the Minister has requested that a review be held by the Planning Assessment Commission with respect to the activity, the review has been held and the determining authority has considered the findings and recommendations of the Planning Assessment Commission and any advice given to it by the Minister in accordance with section 114, and(e) where it receives notice from the Director-General that the Director-General has decided that an examination be undertaken in accordance with section 113 (5), that examination has been carried out and the determining authority has considered the report furnished to it in accordance with that subsection.(1A) A determining authority shall not grant an approval in relation to an activity referred to in subsection (1) that is to be carried out in respect of land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987) unless any consent to the activity required under that Act has been obtained.(1B) Without limiting subsection (1), a determining authority must not carry out an activity, or grant an approval in relation to an activity, being an activity that is in respect of land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, unless a species impact statement, or an environmental impact statement that includes a species impact statement, has been prepared (in each case) in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.(1C) An environmental impact statement is not required (despite subsection (1) (a)) in respect of an activity that:(a) is on land that is, or is part of, critical habitat, or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, andif the determining authority has obtained or been furnished with a species impact statement in respect of the activity, prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995. However, the provisions of this Part relating to environmental impact statements (other than subsection (1) (a) (i)) apply to the species impact statement as if references to an environmental impact statement included a reference to the species impact statement.(b) is not likely to significantly affect the environment except as described in paragraph (a),Note—An activity is taken not to significantly affect threatened species, populations or ecological communities, or their habitats if:(a) the activity is to be carried out on biodiversity certified land (within the meaning of Part 7AA of the Threatened Species Conservation Act 1995), or(b) a biobanking statement has been issued in respect of the activity under Part 7A of the Threatened Species Conservation Act 1995.(1D) (Repealed)(2) The determining authority or nominated determining authority, as the case requires, shall, as soon as practicable after an environmental impact statement is obtained by or furnished to it, as referred to in subsection (1), but before giving notice under section 113 (1), furnish to the Director-General a copy of the statement.(3) A determining authority or nominated determining authority, as the case requires, shall furnish such number of additional copies of an environmental impact statement to the Director-General as the Director-General may request.(4) Before carrying out an activity referred to in subsection (1) or in determining whether to grant an approval in relation to such an activity, a determining authority which is satisfied that the activity will detrimentally affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats:(a) may, except where it is the proponent of the activity:(i) impose such conditions or require such modifications as will in its opinion eliminate or reduce the detrimental effect of the activity on the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, or(ii) disapprove of the activity, or(b) may, where it is the proponent of the activity:(i) modify the proposed activity so as to eliminate or reduce the detrimental effect of the activity on the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, or(ii) refrain from undertaking the activity.(5) Where a determining authority, not being the proponent of an activity, imposes conditions as referred to in subsection (4) (a) (i) or disapproves of an activity as referred to in subsection (4) (a) (ii), the determining authority shall, by notice in writing to the proponent, indicate the reasons for the imposition of the conditions or for disapproving of the activity.(6) The provisions of subsection (4) have effect notwithstanding any other provisions of this Act (other than Part 3A) or the provisions of any other Act or of any instrument made under this or any other Act.(6A) (Repealed)(7) Where a nominated determining authority has been nominated in relation to an activity, no other determining authority which may grant an approval in relation to the activity shall be concerned to inquire whether or not the nominated determining authority has complied with this section or section 113.s 112: Subst 1985 No 228, Sch 6 (2). Am 1987 No 197, Sch 2; 1991 No 66, Sch 2 (5); 1993 No 93, Sch 1 (7); 1995 No 101, Sch 5 [23]–[25]; 1996 No 30, Sch 2.12 [2]; 1997 No 152, Sch 1 [13]; 2002 No 78, Sch 2.1 [12]; 2005 No 43, Sch 1 [23]–[25]; 2006 No 125, Sch 2.1 [9]; 2008 No 36, Sch 2.2 [15] [47] [48]; 2010 No 39, Sch 2.1 [5].
112A Determining authorities to have regard to recovery plans and threat abatement plans
A determining authority, in considering a species impact statement, must have regard to the terms of any recovery plan or threat abatement plan relating to the land referred to in the species impact statement for the purposes of assessing any effect on a threatened species, population or ecological community, or its habitat.s 112A: Ins 1995 No 101, Sch 5 [26].
112B Consultation with Minister for the Environment if Minister is determining authority
(1) A Minister who is a determining authority must not carry out, or grant an approval to carry out, an activity in respect of land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, unless that Minister has consulted with the Minister administering the Threatened Species Conservation Act 1995.(2) In so consulting, the Minister administering the Threatened Species Conservation Act 1995 must provide the Minister who is the determining authority with any recommendations made by the Director-General of the Department of Environment, Climate Change and Water concerning the determination of the activity. If that Minister does not accept any one or more of the recommendations, that Minister must include the recommendations not accepted and the Minister’s reasons for not accepting them in the determination.s 112B: Ins 1995 No 101, Sch 5 [26]. Am 2009 No 106, Sch 2.11 [1].
112C Concurrence of or consultation with Director-General of the Department of Environment, Climate Change and Water if Minister is not determining authority
(1) A determining authority (not being a Minister) must not carry out, or grant an approval to carry out, an activity:(a) that is to be carried out in respect of land that is, or is part of, critical habitat, orwithout the concurrence of the Director-General of the Department of Environment, Climate Change and Water.(b) that is likely to significantly affect a threatened species, population or ecological community or its habitat,(2) Despite subsection (1), if the Minister administering the Threatened Species Conservation Act 1995 considers that it is appropriate, that Minister may elect to act in the place of the Director-General of the Department of Environment, Climate Change and Water for the purpose of that subsection. However, if the Minister so elects, the Minister must:(a) consult the Director-General of the Department of Environment, Climate Change and Water and seek that Director-General’s recommendations in respect of the proposed activity, and(b) if the Minister does not accept any one or more of those recommendations—specify, in the determination as to the grant or refusal to grant concurrence under this section, the recommendations that were not accepted and the Minister’s reasons for not accepting them.(3) Section 79B (8), (8A), (8B), (9) and (11) and the prescribed provisions of the regulations apply (with such modifications as may be necessary) to and in respect of the granting of concurrence under this section in the same way as they apply to and in respect of the granting of concurrence required by an environmental planning instrument.(4) The Director-General of the Department of Environment, Climate Change and Water or, in a case where the Minister administering the Threatened Species Conservation Act 1995 has elected to act in the place of the Director-General, the Minister may, on the request of a determining authority that proposes to carry out or grant an approval to carry out an activity referred to in subsection (1), modify a concurrence granted under this section by:(a) revoking or varying a condition of the concurrence, or(b) imposing an additional condition on the concurrence.s 112C: Ins 1995 No 101, Sch 5 [26]. Am 1999 No 72, Sch 5 [10]; 2001 No 56, Sch 1.3 [8]; 2002 No 78, Sch 2.1 [13]; 2009 No 106, Sch 2.11 [1]; 2010 No 39, Sch 2.1 [6].
112D Matters to be considered by Director-General of the Department of Environment, Climate Change and Water as concurrence authority
(1) In deciding whether or not concurrence should be granted under section 112C, the Director-General of the Department of Environment, Climate Change and Water (or the Minister administering the Threatened Species Conservation Act 1995, if that Minister acts under that section) must take the following matters into consideration:(a) any species impact statement prepared in relation to the activity,(b) any assessment report prepared by or on behalf of the proponent,(c) any representations made under section 113 concerning the species impact statement,(d) any relevant recovery plan or threat abatement plan,(e) whether the activity is likely to reduce the long-term viability of the species, population or ecological community in the region,(f) whether the activity is likely to accelerate the extinction of the species, population or ecological community or place it at risk of extinction,(g) the principles of ecologically sustainable development,(h) the likely social and economic consequences of granting or of not granting concurrence.(2) Before the Director-General of the Department of Environment, Climate Change and Water or the Minister administering the Threatened Species Conservation Act 1995 decides to modify a concurrence in respect of an activity under section 112C he or she must:(a) give notice of the proposed decision to any person who made representations under section 113 concerning the species impact statement in respect of the activity, and(b) provide the person with an opportunity to make submissions with respect to the proposed decision within a period specified in the notice (being a period of not less than 28 days after the date of the notice), and(c) have regard to any submissions made to him or her in accordance with the notice within the period so specified.s 112D: Ins 1995 No 101, Sch 5 [26]. Am 1997 No 147, Sch 1.6; 2002 No 78, Sch 2.1 [14]; 2005 No 43, Sch 6 [9]; 2009 No 106, Sch 2.11 [1].
112E Matters to be considered by Minister or Director-General of the Department of Environment, Climate Change and Water when consulted
The Minister administering the Threatened Species Conservation Act 1995 (for the purposes of consultation under section 112B) or the Director-General of the Department of Environment, Climate Change and Water (for the purposes of consultation under section 112C) (or the Minister administering the Threatened Species Conservation Act 1995, if that Minister acts under that section) must take the following matters into consideration:(a) any species impact statement prepared in relation to the activity,(b) any assessment report prepared by or on behalf of the proponent,(c) any representations made under section 113 concerning the species impact statement,(d) whether the activity is likely to reduce the long-term viability of the species in the region,(e) whether the activity is likely to place the species at risk of becoming endangered as described in section 10 of the Threatened Species Conservation Act 1995,(f) the principles of ecologically sustainable development,(g) the likely social and economic consequences if the activity is not carried out.s 112E: Ins 1995 No 101, Sch 5 [26]. Am 2005 No 43, Sch 6 [9]; 2009 No 106, Sch 2.11 [1].
113 Publicity and examination of environmental impact statements
(1) A determining authority shall give notice in the prescribed form and manner that a copy of an environmental impact statement prepared by or submitted to it, as referred to in section 112 (1), may be inspected at:(a) the office of the determining authority and the Department at any time during ordinary office hours, andwithin such period, being not less than 30 days after the day on which the notice is given, as may be specified in the notice.(b) such other premises operated or controlled by them respectively and at such times as may be prescribed,(2) Any person may, during the period specified in the notice, inspect the environmental impact statement (except any part thereof the publication of which would, in the opinion of the determining authority, be contrary to the public interest by reason of its confidential nature or for any other reason) and may within that period make submissions in writing to the determining authority with respect to the activity to which the environmental impact statement relates.(3) A determining authority shall, as soon as practicable and not less than 21 days before carrying out an activity or granting an approval in relation to an activity, being an activity referred to in section 112 (1), furnish to the Director-General a copy of any submissions made to it under subsection (2) with respect to the activity.(3A) The determining authority must, at that time, also forward copies of those submissions to the Environment Protection Authority if the activity is a scheduled activity under the Protection of the Environment Operations Act 1997.(4) A proponent not entitled to copyright in an environmental impact statement referred to in section 112 (1) shall be deemed to have indemnified all persons using the environmental impact statement for the purposes of this Part against any claim or action in respect of a breach of copyright in the statement.(5) Except where the Minister has requested that a review be held by the Planning Assessment Commission, the Director-General may examine or cause to be examined in the Department an environmental impact statement furnished in accordance with section 112 (2) and any submissions made with respect to the activity to which the statement relates under subsection (2) and shall forward, as soon as practicable to the relevant determining authority, a report containing the findings of that examination together with any recommendations arising therefrom.(6) After the report referred to in subsection (5) has been forwarded to the determining authority, the Director-General shall make public that report.(7) Any public authority or body to which an appeal may be made by or under any Act in relation to the activity the subject of an examination carried out under subsection (5) shall, in deciding the appeal, consider and take into account the report forwarded to the determining authority under that subsection.(8) In this section, environmental impact statement includes a fauna impact statement and a species impact statement.s 113: Am 1985 No 228, Sch 6 (3); 1993 No 93, Sch 1 (8); 1995 No 101, Sch 5 [27]; 1997 No 152, Sch 1 [13]; 1997 No 156, Sch 4.3 [6]; 2005 No 43, Schs 1 [26] 4 [4]; 2008 No 36, Sch 2.2 [49].
114 Consideration of findings and recommendations of Planning Assessment Commission
Where the Minister has requested that a review be held by the Planning Assessment Commission, with respect to any activity referred to in section 112 (1):(a) the Minister shall consider the findings and recommendations of the Planning Assessment Commission and forward to the relevant determining authority (whether or not that determining authority is the nominated determining authority) a copy of the findings and recommendations and may give advice to the authority as to whether, in the Minister’s opinion:(i) there are no environmental grounds which would preclude the carrying out of the activity to which the findings and recommendations relate in accordance with the proponent’s proposal,(ii) there are no environmental grounds which would preclude the carrying out of the activity subject to its being modified in the manner specified in the advice,(iii) there are no environmental grounds which would preclude the carrying out of the activity subject to the observance of conditions specified in the advice, or(iv) there are environmental grounds which would preclude the carrying out of the activity, and(b) any public authority or body to which an appeal may be made by or under any Act in relation to the activity shall, in deciding the appeal, consider and take into account the findings and recommendations of the Planning Assessment Commission and any such advice given by the Minister.s 114: Am 1985 No 228, Sch 6 (4); 2008 No 36, Sch 2.2 [15] [50].
115 Regulations
The regulations may make provision for or with respect to:(a) the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment,(b) the preparation, contents, form and submission of environmental impact statements,(c) the making of environmental impact statements available for public comment, or(d) the methods of examination of environmental impact statements and submissions made with respect to activities to which any such statements relate.s 115: Am 2005 No 43, Sch 4 [4].
Division 4
115A–115F (Repealed)
pt 5, div 4: Ins 1993 No 93, Sch 1 (9). Rep 2005 No 43, Sch 1 [27].
s 115A: Ins 1993 No 93, Sch 1 (9). Am 1996 No 44, Sch 4 [1]. Rep 2005 No 43, Sch 1 [27].
s 115B: Ins 1993 No 93, Sch 1 (9). Am 1995 No 101, Sch 5 [28]; 1996 No 44, Sch 4 [2]; 1999 No 72, Sch 5 [11]; 2001 No 56, Sch 1.3 [1]. Rep 2005 No 43, Sch 1 [27].
s 115BA: Ins 1996 No 44, Sch 4 [3]. Am 1999 No 72, Sch 5 [12]; 2001 No 56, Sch 1.3 [1]. Rep 2005 No 43, Sch 1 [27].
s 115BAA: Ins 1999 No 72, Sch 4 [10]. Am 2001 No 56, Sch 1.3 [1]. Rep 2005 No 43, Sch 1 [27].
s 115BB: Ins 1996 No 44, Sch 4 [3]. Rep 2005 No 43, Sch 1 [27].
s 115C: Ins 1993 No 93, Sch 1 (9). Am 1996 No 44, Sch 4 [4]–[8]; 1999 No 72, Sch 4 [11]. Rep 2005 No 43, Sch 1 [27].
s 115D: Ins 1993 No 93, Sch 1 (9). Rep 2005 No 43, Sch 1 [27].
s 115E: Ins 1993 No 93, Sch 1 (9). Am 1996 No 44, Sch 4 [9]. Rep 2005 No 43, Sch 1 [27].
s 115F: Ins 1993 No 93, Sch 1 (9). Rep 2005 No 43, Sch 1 [27].
Division 5 Environmental assessment of fishing activities
pt 5, div 5: Ins 2000 No 86, Sch 1 [1].
115G Definitions
In this Division:designated fishing activity means a fishing activity to which this Division applies as provided by section 115I.fish, fishery, fishing activity and have the respective meanings given in the Fisheries Management Act 1994.fisheries approval means a licence, endorsement or permit, of any kind, issued or renewed under the Fisheries Management Act 1994 or the regulations under that Act.Fisheries Minister means the Minister administering the Fisheries Management Act 1994.fishery management strategy means a fishery management strategy for a designated fishing activity under Part 1A of the Fisheries Management Act 1994.fishing regulatory controls means the provisions of the following instruments that regulate, prohibit or authorise fishing activities:(a) the Fisheries Management Act 1994 and the regulations under that Act,(b) management plans under the Fisheries Management Act 1994,(c) fishing closures under section 8 of the Fisheries Management Act 1994,(d) fisheries approvals,(e) determinations of the TAC Committee under Division 4 of Part 2 of the Fisheries Management Act 1994,(f) policies approved by the Fisheries Minister with respect to the administration of the Fisheries Management Act 1994 and the regulations under that Act,(g) any relevant environmental planning instrument referred to in section 115R (5),(h) Ministerial orders and interim orders made under Subdivision 1A of Division 6 of Part 7A of the Fisheries Management Act 1994.proponent of a fishing activity means:(a) in the case of a share management fishery—the holders of shares in the fishery or, if shares have not yet been issued on a provisional or permanent basis, the persons who are entitled to be allocated shares in the fishery, or(b) in the case of any other fishery—the fishers or other persons who carry out, or propose to carry out, the fishing activity.shark meshing means the placing of nets around beaches or other waters to protect the public from sharks.s 115G: Ins 2000 No 86, Sch 1 [1]. Am 2001 No 104, Sch 2 [1]; 2008 No 86, Sch 2.1 [1].
115H Principles guiding administration of Division
The administration of this Division is to be guided by the following principles:(a) the principles of ecologically sustainable development,(b) public participation in accordance with this Division,(c) environmental impact assessment in accordance with this Division.s 115H: Ins 2000 No 86, Sch 1 [1]. Am 2005 No 43, Sch 6 [10].
115I Application of Division to designated fishing activities
(1) This Division applies to designated fishing activities described in Schedule 1A to the Fisheries Management Act 1994.(2) This Division extends to the following activities (but only if the activity is such a designated fishing activity):(a) the stocking of waters with fish,(b) shark meshing,(c) the harvesting of marine vegetation.For that purpose, a reference in this Division to a fishing activity or fishery includes a reference to any such activity.(3) This Division does not apply to aquaculture within the meaning of the Fisheries Management Act 1994.s 115I: Ins 2000 No 86, Sch 1 [1]. Am 2008 No 86, Sch 2.1 [2].
115J Designated fishing activities to be assessed under this Division
(1) Environmental assessments of designated fishing activities are to be undertaken in accordance with this Division.(2) A draft fishery management strategy is required for a designated fishing activity that is the subject of such an environmental assessment.Note—Section 7E of the Fisheries Management Act 1994 deals with the contents of such a strategy (including the incorporation of the relevant management plan).(3) The environmental assessment is to be undertaken on the basis of the activity described in the draft strategy.(4) The environmental assessment is to assess the likely cumulative environmental impact of the designated fishing activity carried out by all the proponents as authorised by the applicable fishing regulatory controls described in the draft strategy.s 115J: Ins 2000 No 86, Sch 1 [1].
115K Environmental impact statements to be prepared
(1) An environmental impact statement in respect of a designated fishing activity must be prepared for the purposes of an environmental assessment under this Division.(2) An environmental impact statement is required even if it would not be required under Division 3 if that Division applied to the carrying out of the designated fishing activity.(3) An environmental impact statement is to be prepared in accordance with the requirements of Division 3, and the regulations under that Division, relating to the preparation of such statements.(4) The Fisheries Minister is to make arrangements for the preparation of an environmental impact statement, including engaging a person to be responsible for the preparation of the statement.(5) The Fisheries Minister may, under those arrangements, require the proponents of the designated fishing activity to provide information or carry out investigations for the statement and to contribute to the cost of the preparation of the statement.(6) As soon as practicable after an environmental impact statement has been prepared and before public notice is given under section 115L, the Fisheries Minister is to give a copy of the statement to the Director-General.s 115K: Ins 2000 No 86, Sch 1 [1]. Am 2001 No 56, Sch 1.3 [9].
115L Publicity and examination of environmental impact statements
(1) The Fisheries Minister must give public notice of the preparation of an environmental impact statement under this Division and make a copy of the statement available for public inspection in accordance with the requirements for environmental impact statements made by section 113.(2) A copy of the relevant draft fishery management strategy is to accompany any copy of the environmental impact statement that is made available for public inspection in accordance with this section.(3) Any person may, during the period specified in the public notice under subsection (1), inspect the environmental impact statement and may, within that period, make representations in writing to the Fisheries Minister with respect to the designated fishing activity to which the statement relates.(4) Copies of all such representations received by the Fisheries Minister are to be provided, as soon as practicable, to the Director-General.(5) The Director-General may, unless an inquiry has been directed under section 115M:(a) examine or cause to be examined in the Department the environmental impact statement and any relevant representations, and(b) forward to the Fisheries Minister, as soon as practicable, a report containing the findings of that examination together with any recommendations arising from that examination.The Director-General must make that report public.(6) If the Director-General notifies the Fisheries Minister that the environmental impact statement and representations are to be examined in the Department, the Fisheries Minister must not make a determination under section 115O with respect to the designated fishing activity until the report of the Director-General has been forwarded to the Fisheries Minister.s 115L: Ins 2000 No 86, Sch 1 [1]. Am 2001 No 56, Sch 1.3 [9].
115M Reviews about designated fishing activity
(1) The Minister administering this Act may request that a review be held by the Planning Assessment Commission with respect to all or any of the environmental aspects of a designated fishing activity the subject of an environmental impact statement prepared under this Division.(2) The Minister administering this Act is to consider the findings and recommendations of the Planning Assessment Commission and forward to the Fisheries Minister a copy of the findings and recommendations (together with any advice on whether there are environmental grounds on which the activity should be permitted, modified or prevented).(3) If the Minister administering this Act notifies the Fisheries Minister that a review is to be conducted, the Fisheries Minister must not make a determination under section 115O with respect to the designated fishing activity until the findings and recommendations (and any advice) have been forwarded to the Fisheries Minister.s 115M: Ins 2000 No 86, Sch 1 [1]. Am 2008 No 36, Sch 2.2 [51]–[53].
115N Special provisions relating to threatened species conservation
(1) An environmental assessment under this Division of a designated fishing activity is to include an assessment of the effect or likely effect on the following:(a) critical habitat,(b) threatened species, populations and ecological communities and their habitats.(2) An environmental impact statement under this Division must include a species impact statement if the designated fishing activity is to be carried out in critical habitat or is likely to significantly affect threatened species, populations or ecological communities or their habitats.(2A) However, despite subsection (2), a species impact statement is not required in relation to threatened species, populations or ecological communities or their habitats, if:(a) the designated fishing activity subject to the environmental assessment is an activity authorised by a Ministerial order made under Subdivision 1A of Division 6 of Part 7A of the Fisheries Management Act 1994, and(b) the species impact statement prepared under section 221IC of the Fisheries Management Act 1994 in relation to that order includes an assessment of the likely effect of the activity on those threatened species, populations or ecological communities or their habitats.(3) The Fisheries Minister, in considering a species impact statement under this Division, must have regard to the terms of any recovery plans or threat abatement plans relating to the area to which the statement applies for the purpose of assessing any effect on a threatened species, population or ecological community, or its habitat.(4) The Fisheries Minister must not make a determination under section 115O with respect to a designated fishing activity that is to be carried out in critical habitat or is likely to significantly affect threatened species, populations or ecological communities or their habitats unless the Minister has consulted the Minister administering the Threatened Species Conservation Act 1995. This subsection does not apply if the critical habitat or the threatened species, population or ecological community relate to fish or marine vegetation.(5) In consulting under subsection (4), the Minister administering the Threatened Species Conservation Act 1995 must provide the Fisheries Minister with any recommendations made by the Director-General of the Department of Environment, Climate Change and Water concerning the determination with respect to the designated fishing activity. The Fisheries Minister must include any recommendations not accepted by the Fisheries Minister (and the reasons for not accepting them) in the public report of the Fisheries Minister’s determination.(6) The Minister administering the Threatened Species Conservation Act 1995 (for the purposes of consultation under subsection (4)) must take into consideration the matters referred to in section 112E of this Act.Note—This section incorporates the relevant obligations under Division 3 with respect to threatened species conservation.s 115N: Ins 2000 No 86, Sch 1 [1]. Am 2001 No 104, Sch 2 [2]; 2009 No 106, Sch 2.11 [1].
115O Determination with respect to environmental assessment
(1) The Fisheries Minister is to make a determination with respect to the designated fishing activity the subject of an environmental impact statement for the purpose of attaining the objects of this Act relating to the protection and the enhancement of the environment and the objects of the Fisheries Management Act 1994.(2) When making the determination, the Fisheries Minister is to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the designated fishing activity (including the effect of the activity on the matters referred to in section 111 (2)–(4)).Note—The duty of the Fisheries Minister under this section is in similar terms to the duty imposed on determining authorities by section 111 to consider the environmental impact of activities.(3) The Fisheries Minister is to consider:(a) the environmental impact statement and the representations duly received by the Fisheries Minister with respect to the designated fishing activity to which the statement relates, and(b) any report on the statement and recommendations of the Director-General that are forwarded to the Fisheries Minister under section 115L, and(c) any findings and recommendations of the Planning Assessment Commission and advice of the Minister administering this Act that are forwarded to the Fisheries Minister under section 115M, and(d) the matters required to be considered under section 115N relating to threatened species conservation.(4) The Fisheries Minister may make any of the following determinations:(a) a determination to permit the designated fishing activity to be carried out,(b) a determination to permit the designated fishing activity to be carried out subject to such modifications as will in the Fisheries Minister’s opinion eliminate or reduce the detrimental effect of the activity on the environment,(c) a determination to prevent the carrying out of the designated fishing activity or any part of the activity.The Fisheries Minister must make the determination public as soon as practicable after it is made.Note—This subsection is in similar terms to section 112 (4) with respect to the actions of a determining authority once it has obtained and considered an environmental impact statement on an activity that is likely to significantly affect the environment. Section 7F of the Fisheries Management Act 1994 requires the Fisheries Minister to revise the relevant draft fishery management strategy (and publish the approved strategy) so as to reflect the result of the determination.(5) If the approval of the Minister administering this Act is required under section 115P for a determination under this section, the Fisheries Minister is to make a preliminary determination before seeking approval under that section. A determination is not made under this section until a final determination is made in accordance with section 115P.(6) When giving effect to a determination, the Fisheries Minister is to comply with the applicable provisions of the Fisheries Management Act 1994 and the regulations under that Act.(7) A determination under this section does not prevent the imposition from time to time of new fishing regulatory controls applicable to a designated fishing activity, or changes from time to time to those controls.Note—See also section 115R (3) which only excludes a fishing approval from the requirement for individual environmental assessment under this Part if it is issued or renewed in accordance with the determination of the environmental assessment under this section.s 115O: Ins 2000 No 86, Sch 1 [1]. Am 2001 No 56, Sch 1.3 [9]; 2008 No 36, Sch 2.2 [54].
115P Approval of Minister administering this Act required for designated fishing activity where Fisheries Minister is or is declared to be proponent
(1) This section applies to:(a) any designated fishing activity of which the Fisheries Minister is the proponent, and(b) any other designated fishing activity in respect of which the Fisheries Minister is declared to be the proponent by the Minister administering this Act by order published in the Gazette:(i) with the approval of the Fisheries Minister, or(ii) if there is a dispute between the Minister administering this Act and the Fisheries Minister, with the approval of the Premier.(2) The Fisheries Minister is not to make a final determination under section 115O with respect to a designated fishing activity to which this section applies without the approval of the Minister administering this Act. If the approval is subject to conditions, the final determination must accord with those conditions.(3) The regulations may make provisions for or with respect to approvals under this section of the Minister administering this Act.s 115P: Ins 2000 No 86, Sch 1 [1]. Am 2005 No 43, Sch 1 [28].
115Q Re-assessment of designated fishing activity
(1) A further environmental assessment of a designated fishing activity is to be undertaken under this Division if:(a) a review of the relevant fishery management strategy is indicated by the strategy because the specified performance indicators are not being met, and(b) the review results in proposed changes to the strategy, and(c) the proposed changes to fishing regulatory controls are likely, in the opinion of the Fisheries Minister, to significantly affect the environment (including threatened species, populations or ecological communities or their habitats).(2) A further environmental assessment may be limited to an assessment that relates to the proposed changes to fishing regulatory controls.s 115Q: Ins 2000 No 86, Sch 1 [1].
115R Application of other provisions of this Act
(1) The provisions of this Part (other than this Division) do not apply to or in respect of a designated fishing activity.(2) Despite subsection (1), those provisions apply to a designated fishing activity if the Fisheries Minister has not made a determination with respect to the activity under this Division before:(a) 1 July 2003, except as provided by paragraph (b), or(b) a later date prescribed by the regulations for the purposes of that fishing activity.In that case, those provisions cease to apply if the determination is made after that date.(3) Despite subsection (1), those provisions apply to a fisheries approval that relates to a designated fishing activity if:(a) until a determination is made by the Fisheries Minister with respect to the activity under section 115O—the fisheries approval does not authorise commercial fishing activities and is granted or renewed for a period exceeding 12 months, or(b) after such a determination is made—the fisheries approval is not granted or renewed in accordance with the determination.(3A) A designated fishing activity cannot be declared to be a project to which Part 3A applies.(4) A designated fishing activity cannot be made subject to a requirement for development consent under Part 4.(5) An environmental planning instrument cannot prohibit or otherwise regulate a designated fishing activity (or any part of such an activity) unless the Fisheries Minister has approved those provisions before the instrument is made.s 115R: Ins 2000 No 86, Sch 1 [1]. Am 2005 No 43, Sch 1 [29].
115RA Shark meshing
(1) Despite section 115I, this section applies to shark meshing that:(a) is the subject of both a joint management agreement under Division 8 of Part 7A of the Fisheries Management Act 1994 and a joint management agreement within the meaning of the Threatened Species Conservation Act 1995, and(b) is not a designated fishing activity.(2) The provisions of this Part (other than this section) do not apply to or in respect of shark meshing to which this section applies.(3) Shark meshing to which this section applies cannot be declared to be a project to which Part 3A applies.(4) Shark meshing to which this section applies cannot be made subject to a requirement for development consent under Part 4.(5) An environmental planning instrument cannot prohibit or otherwise regulate shark meshing to which this section applies.s 115RA: Ins 2008 No 86, Sch 2.1 [3].
115S Transitional—amendment to list of vulnerable species
(1) An amendment to the list of vulnerable species does not apply in respect of a designated fishing activity if:(a) an environmental impact statement was prepared in relation to that activity in accordance with this Part before the amendment was made, and(b) notice of the environmental impact statement has been given as provided for by section 115L.(2) Subsection (1) ceases to apply in respect of a designated fishing activity if a determination under section 115O has not been made in respect of the activity at the end of the period of 12 months after the date the notice of the environmental impact statement was given under section 115L.(3) In this section:list of vulnerable species means Part 1 of Schedule 2 to the Threatened Species Conservation Act 1995 or, subject to section 5C, Schedule 5 to the Fisheries Management Act 1994.s 115S: Ins 2002 No 78, Sch 2.1 [15].
Part 5A
pt 5A, hdg: Ins 1997 No 152, Sch 1 [34]. Rep 2008 No 36, Sch 2.2 [55].
116A–116F (Repealed)
ss 116A–116C (previously ss 115G–115I): Ins 1997 No 152, Sch 1 [34]. Renumbered 2000 No 86, Sch 1 [2]. Am 2001 No 56, Sch 1.3 [1]. Rep 2008 No 36, Sch 2.2 [55].
s 116D (previously s 115J): Ins 1997 No 152, Sch 1 [34]. Renumbered 2000 No 86, Sch 1 [2]. Am 2001 No 56, Sch 1.3 [1]; 2006 No 123, Sch 1 [50]. Rep 2008 No 36, Sch 2.2 [55].
s 116E (previously s 115K): Ins 1997 No 152, Sch 1 [34]. Renumbered 2000 No 86, Sch 1 [2]. Am 2001 No 56, Sch 1.3 [1]; 2006 No 123, Sch 1 [51]. Rep 2008 No 36, Sch 2.2 [55].
s 116F (previously s 115L): Ins 1997 No 152, Sch 1 [34]. Renumbered 2000 No 86, Sch 1 [2]. Rep 2008 No 36, Sch 2.2 [55].
116G, 116GA
(Renumbered as secs 109R, 109S)
s 116G (previously s 115M): Ins 1997 No 152, Sch 1 [34]. Am 1998 No 54, Sch 1.9 [30]; 1998 No 120, Sch 1.15 [3]. Renumbered 2000 No 86, Sch 1 [2]. Am 2003 No 95, Sch 1 [35]. Renumbered as sec 109R, 2008 No 36, Sch 2.2 [58].
s 116GA: Ins 2001 No 93, Sch 2 [9]. Renumbered as sec 109S, 2008 No 36, Sch 2.2 [58].
116H (Repealed)
s 116H (previously s 115N): Ins 1997 No 152, Sch 1 [34]. Renumbered 2000 No 86, Sch 1 [2]. Rep 2008 No 36, Sch 2.2 [55].
Part 6 Implementation and enforcement
Division 1 General
116 (Repealed)
s 116: Rep 1991 No 22, Sch 1.
117 Directions by the Minister
(1) The Minister may direct a public authority or person having functions under this Act or an environmental planning instrument to exercise those functions at or within such times as are specified in the direction.(2) In addition to any direction which may be given under subsection (1), the Minister may direct a council:(a) to exercise its functions under Division 4 or 5 of Part 3 in relation to the preparation of a local environmental plan in accordance with such principles, not inconsistent with this Act, as are specified in the direction, and(b) without limiting paragraph (a), to include in a planning proposal prepared by the council provisions which will achieve or give effect to such principles or such aims, objectives or policies, not inconsistent with this Act, as are specified in the direction, and(c) to provide the Minister, in the manner and at the times specified in the direction, with reports, containing such information as the Minister may direct, on the council’s performance in relation to planning and development matters.(2A) A direction under subsection (2):(a) may be given to a particular council or to councils generally, and(b) may require the inclusion in planning proposals of provisions to achieve or give effect to particular principles, aims, objectives or policies, and(c) may require planning proposals to be strictly consistent or substantially consistent with the terms of the direction (or provide for the circumstances in which an inconsistency can be justified).Any such direction may be given to councils generally by its publication in the Gazette or on a website maintained by the Department (or both).(2B) A reference to a council in subsections (2) and (2A) includes a reference to a relevant planning authority under Division 4 of Part 3 that is not a council.(3) A public authority or person to whom a direction is given under subsection (1) or (2) shall comply, and is hereby empowered to comply, with the direction in accordance with the terms of the direction.(4) Before giving a direction under subsection (1) or (2), the Minister shall consult with the responsible Minister concerned.(4A) Before giving a direction under subsection (2) (c), the Minister is to consult with the Local Government and Shires Associations of New South Wales and any other industry organisation the Minister considers to be relevant, in relation to the information that the Minister is proposing to seek. This requirement is in addition to the requirement under subsection (4).(5) A local environmental plan (or any planning proposal or purported plan) cannot in any court proceedings be challenged, reviewed, called into question, prevented from being made or otherwise affected on the basis of anything in a direction under subsection (1) or (2).s 117: Am 1985 No 228, Sch 3 (19); 2005 No 43, Sch 2 [19] [20]; 2006 No 8, Sch 2 [2] [3]; 2008 No 36, Sch 1.2 [30]–[34].
117A Inquiry into councils by Director-General of Department of Premier and Cabinet
(1) The Director-General of the Department of Planning may request the Director-General of the Department of Premier and Cabinet to authorise an investigation under section 430 of the Local Government Act 1993 into any aspect of a council’s performance of its functions under this Act that requires investigation.(2) The Director-General of the Department of Premier and Cabinet is to provide the Director-General of the Department of Planning with advice on the outcome of any such request or investigation.s 117A: Ins 1985 No 228, Sch 8 (11). Rep 1997 No 152, Sch 1 [35]. Ins 2002 No 44, Sch 1 [1]. Am 2005 No 43, Sch 6 [11] [12]; 2009 No 106, Sch 2.11 [8] [9].
117B Action that may be taken against council following investigation
(1) If the Building Professionals Board has made its final report of the results of an investigation under section 45 of the Building Professionals Act 2005 in relation to a council publicly available and is of the opinion that the council has not taken appropriate action about a matter investigated, the Board may:(a) make recommendations to the Director-General of the Department of Local Government as to the measures that it considers appropriate to be taken in relation to the matter, or(b) recommend to the Minister that the Minister take action against the council under this section.Note—Section 45 of the Building Professionals Act 2005 enables the Building Professionals Board to investigate the work and activities of a council in its capacity as a certifying authority.(2) The Minister may, on the recommendation of the Board under this section and following consultation with the Minister administering the Local Government Act 1993, make an order suspending a council’s authority to exercise all or specified functions of a certifying authority.(3) A council must comply with an order under this section that relates to the council.(4) Despite any other provision of this Act, a council that is the subject of an order must not exercise any function of a certifying authority while the council’s authority to exercise that function is suspended by operation of the order.(5) An order does not operate to suspend a council’s authority to exercise the functions of a certifying authority in relation to any matter being dealt with by the council as a certifying authority before the commencement of the order, unless the order provides otherwise.(6) An order may contain provisions of a savings or transitional nature consequent on the suspension contained in the order.(7) Without limiting subsection (6), an order may contain provisions for or with respect to the following:(a) the way in which any pending matter being dealt with by the relevant council as a certifying authority is to be completed, including, for example, enabling the council to complete any such matter or providing for the matter to be completed by an accredited certifier,(b) directing any fee paid to the council to act as a certifying authority in relation to any pending matter to be refunded,(c) directing the council to pay any fees required to be paid to an accredited certifier to complete any pending matter being dealt with by the council as a certifying authority.(8) The Minister must revoke an order if satisfied that the relevant council has implemented measures to address the matters that led to the making of the order.(9) Nothing prevents the Minister from amending an order made under this section by another order, including amending the first order to change the functions of a certifying authority to which the first order relates.(10) An order under this section must be in writing and published in the Gazette and takes effect on the day on which it is published in the Gazette or on a later day specified in the order.(11) Section 109E (1AA) does not require a council to accept an appointment as principal certifying authority if the council would contravene subsection (4) by accepting the appointment.(12) An order under this section may be made whether or not any action has been taken by the Minister under section 118 in relation to the exercise of all or any of the functions of the council concerned.s 117B: Ins 1985 No 228, Sch 8 (11). Rep 1997 No 152, Sch 1 [35]. Ins 2008 No 36, Sch 4.1 [23].
Division 1AA Planning administrators and panels
pt 6, div 1AA: Ins 2006 No 8, Sch 2 [4].
117C Definitions
In this Division:planning administrator means a person appointed as a planning administrator under section 118.regional panel means a joint regional planning panel.s 117C: Ins 2006 No 8, Sch 2 [4]. Am 2008 No 36, Sch 2.2 [59].
118 Appointment of planning administrator, planning assessment panel or regional panel
(1) The Minister may appoint a planning administrator, a planning assessment panel or a regional panel (or all of them) to exercise functions of a council if:(a) the Minister is of the opinion that the council has failed to comply with its obligations under the planning legislation, or(b) the Minister is of the opinion that the performance of a council in dealing with planning and development matters (or any particular class of such matters) is unsatisfactory because of the manner in which the council has dealt with those matters, the time taken or in any other respect, or(c) the council agrees to the appointment, or(d) a report referred to in section 74C of the Independent Commission Against Corruption Act 1988 recommends that consideration be given to the appointment because of serious corrupt conduct by any of the councillors in connection with the exercise or purported exercise of functions conferred or imposed on the council by or under this Act.(2) A planning administrator may be appointed to exercise all or any particular function or class of functions of the council under this Act.(3) A planning assessment panel or regional panel may be appointed to exercise only all or any particular function or class of functions of the council:(a) as a consent authority, or(b) in relation to making of environmental planning instruments under Part 3 or under Division 1 of Part 2 of Chapter 6 of the Local Government Act 1993, or(c) in relation to the preparation, making and approval of development control plans, or(d) in relation to the preparation and approval of contributions plans.(4) A planning assessment panel or regional panel may not exercise the functions of a council for a continuous period of more than 5 years.(5) If a planning assessment panel exercises the functions of a council for a continuous period of more than 2 years, the Minister is, as soon as practicable after 2 years after the date on which the planning assessment panel was appointed, to conduct a review of the appointment and functions of the planning assessment panel.(6) A review under subsection (5) is to be conducted by the Minister in consultation with the Minister for Local Government, the Local Government and Shires Associations of New South Wales and any other industry organisation that the Minister considers to be relevant.(7) A planning administrator or planning assessment panel is to be appointed by order of the Minister published in the Gazette.(7A) Functions are to be conferred on a regional panel under this section by order of the Minister published in the Gazette.(7B) Before appointing a planning administrator or planning assessment panel, or conferring functions under this section on a regional panel, the Minister must notify the council concerned in writing of the proposed action (including the reasons for the proposed action) and request the council to show cause why the action should not be taken.(7C) The Minister must consider any written submissions made by the council within 21 days of notice being given under subsection (7B) and must not take action under this section earlier than 21 days after the notice is given.(8) Before appointing a planning administrator or a planning assessment panel, or conferring functions on a regional panel under this section, the Minister is to obtain the concurrence of the Minister for Local Government.(9) The Minister may appoint a planning administrator or a planning assessment panel, or confer functions on a regional panel under this section, for a reason set out in subsection (1) (b) only if the Minister has, by order published in the Gazette, provided heads of consideration for the exercise of power under subsection (1) (b), and has taken any of those heads of consideration that are relevant into account.Editorial note—For orders under this subsection, see the Historical notes at the end of this Act.(10) The Minister may take action under this section in the circumstances specified in subsection (1) (d) without conducting an inquiry but, in that case, the Minister is to inquire into the matter as soon as practicable with a view to confirming or revoking the appointment.(11) The Minister must, as soon as reasonably practicable after appointing a planning administrator or a planning assessment panel, or conferring functions on a regional panel under this section, make the reasons for that appointment publicly available.(12) In this section:failure to comply with obligations under the planning legislation includes:(a) a failure to carry into effect or enforce the provisions of this Act, an environmental planning instrument or a direction under section 55, 94E or 117, or(b) a failure to comply with the requirements of the staged repeal program under section 33B with respect to the preparation or making of a replacement local environmental plan, or(c) without limiting paragraph (a), a failure to comply with a determination under section 56, or(d) without limiting paragraph (a), a failure to provide access to and the use of staff and facilities to the Planning Assessment Commission, a joint regional planning panel or a planning arbitrator as referred to in section 23N (1).serious corrupt conduct means corrupt conduct (within the meaning of the Independent Commission Against Corruption Act 1988) that may constitute a serious indictable offence, being conduct in connection with the exercise or purported exercise of the functions of a councillor.s 118: Am 1985 No 228, Sch 8 (12); 1992 No 34, Sch 1; 1995 No 11, Sch 1.41 [4] [5]; 2002 No 44, Sch 1 [2] [3]; 2002 No 112, Sch 2.4; 2005 No 43, Sch 2 [21]. Subst 2006 No 8, Sch 2 [4]. Am 2008 No 36, Sch 2.1 [39]–[51]; 2009 No 34, Sch 2 [7] [8].
118AA Planning assessment panels
(1) The bodies listed in Part 1 of Schedule 5B from time to time are established by this Act as planning assessment panels.(2) A planning assessment panel is a body corporate with the corporate name specified in Part 1 of Schedule 5B.(3) A planning assessment panel is a statutory body representing the Crown and has the status, privileges and immunities of the Crown.(4) A planning assessment panel is to consist of such members (being not less than 3 and not more than 5) as are appointed by the Minister.(5) The members of the planning assessment panel are to be persons who together have, in the opinion of the Minister, relevant skills and knowledge in planning and development matters.(6) The Minister is to appoint a member of the planning assessment panel as the chairperson of the planning assessment panel.(7) Part 2 of Schedule 5B has effect with respect to the members of planning assessment panels.(7A) The regulations may make provision for or with respect to the procedures of planning assessment panels.(8) A planning assessment panel is, in the exercise of its functions, subject to the control and direction of the Minister.(9) A planning assessment panel is to provide the Minister with such information and material as the Minister may require in relation to its policies, programs and procedures.(10) Despite subsection (8), a planning assessment panel is not subject to the control of the Minister in determining a development application.(11) The Minister may, by order published on the NSW legislation website, amend Part 1 of Schedule 5B for the purpose of:(a) establishing a planning assessment panel, or(b) abolishing a planning assessment panel, or(c) changing the name of a planning assessment panel.(12) Any such order may contain savings and transitional provisions.s 118AA: Ins 2006 No 8, Sch 2 [4]. Am 2008 No 36, Sch 2.2 [60] [61]; 2009 No 56, Sch 4.17 [1].
118AB Functions of planning administrators or panels
(1) During the period of appointment, the planning administrator, planning assessment panel or regional panel:(a) is to exercise the functions of the council under this Act that are specified in the order of appointment, and(b) is, in the exercise of those functions, taken to be the council, and(c) is to exercise those functions to the exclusion of the council except to the extent that the order of appointment provides otherwise, and(d) is, in the exercise of those functions, to give priority to particular functions to the extent that the order of appointment so provides.(2) Despite subsection (1), a planning administrator or planning assessment panel is not to enter into contracts in the exercise of the planning administrator’s or panel’s functions except:(a) with the consent of the Minister and the concurrence of the Minister for Local Government, or(b) in the case of contracts for the appointment of staff—with the authority conferred by a regulation made under section 118AF.(3) Subsection (1) has effect even if the appointment of the planning administrator or panel is subsequently found not to have been validly made.s 118AB: Ins 2006 No 8, Sch 2 [4]. Am 2008 No 36, Sch 2.2 [62] [63].
118AC Costs of planning administrator or planning assessment panel
(1) A council, the functions of which are exercised by a planning administrator or planning assessment panel, is to pay to the Director-General out of the council’s consolidated fund, the remuneration and costs and expenses of the planning administrator or planning assessment panel.(2) The Minister may do either or both of the following:(a) exempt a council from payment of all or part of the remuneration and costs and expenses of the planning administrator or planning assessment panel,(b) resolve any dispute as to the amount of any such remuneration, costs or expenses.s 118AC: Ins 2006 No 8, Sch 2 [4]. Am 2008 No 36, Sch 2.2 [64].
118AD Council to assist planning administrator or panel
(1) A council must, if directed to do so by the Minister, provide any of the following with such staff, facilities and documents as are specified in the direction:(a) a planning administrator, planning assessment panel or regional panel appointed to exercise functions of the council,(b) a staff member of any such planning administrator, planning assessment panel or regional panel,(c) a member of any such panel.(2) A member of a council, or a member of staff of a council, must not obstruct any of the persons in subsection (1) (a)–(c) in the exercise of his or her functions under this Division.Maximum penalty: 10 penalty units.(2A) The general manager of a council must carry out any reasonable direction of the planning administrator or planning assessment panel relating to functions of the council being exercised by the planning administrator or panel.Maximum penalty: 10 penalty units.(3) Before giving a direction under subsection (1), the Minister is to consult with the Minister for Local Government.s 118AD: Ins 2006 No 8, Sch 2 [4]. Am 2008 No 36, Schs 2.1 [52], 2.2 [65].
118AE Annual report on activities of planning administrators and planning assessment panels
The Director-General is, in the annual report of the Department, to report on the activities of planning administrators and planning assessment panels during the period covered by the annual report, including:(a) the financial activities of planning administrators and planning assessment panels, and(b) the exercise of council functions by planning administrators and planning assessment panels.s 118AE: Ins 2006 No 8, Sch 2 [4]. Am 2008 No 36, Sch 2.2 [66].
118AF Regulations
The regulations may make provision for or with respect to the appointment and functions of a planning administrator, planning assessment panel or regional panel and, in particular, for or with respect to:(a) the accommodation, if any, to be provided at the offices of the council for the planning administrator, planning assessment panel or regional panel and any other persons assisting the planning administrator, planning assessment panel or regional panel in the exercise of the planning administrator’s, planning assessment panel’s or regional panel’s functions, and(b) the appointment of staff by the planning administrator, planning assessment panel or regional panel to assist in the exercise of the planning administrator’s, planning assessment panel’s or regional panel’s functions.s 118AF: Ins 2006 No 8, Sch 2 [4]. Am 2008 No 36, Sch 2.2 [67] [68].
118AG Protection for exercise of certain functions by Minister
(1) This section applies to any function (a protected function) conferred or imposed on the Minister (including a delegate of the Minister) relating to the appointment of a planning administrator or planning assessment panel, or the conferral of functions on a regional panel, under this Division.(2) The exercise by the Minister of any protected function may not be:(a) challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings, or(b) restrained, removed or otherwise affected by any proceedings.(3) Without limiting subsection (2), that subsection applies whether or not the proceedings relate to any question involving compliance or non-compliance, by the Minister (including a delegate of the Minister), with the provisions of this Division or the rules of natural justice (procedural fairness).(4) Accordingly, no court of law or administrative review body has jurisdiction or power to consider any question involving compliance or non-compliance, by the Minister (including a delegate of the Minister), with those provisions or with those rules so far as they apply to the exercise of any protected function.(5) This section has effect despite any provision of this Act or other legislation or any other law (whether written or unwritten).(6) In this section:exercise of functions includes:(a) the purported exercise of functions, and(b) the non-exercise or improper exercise of functions, and(c) the proposed, apprehended or threatened exercise of functions.proceedings includes:(a) proceedings for an order under section 124, and(b) proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, and(c) without limiting paragraph (b), proceedings in the exercise of the inherent jurisdiction of the Supreme Court or the jurisdiction conferred by section 23 of the Supreme Court Act 1970.s 118AG: Ins 2008 No 36, Sch 2.1 [53].
Division 1A Local enforcement powers
pt 6, div 1A, hdg: Ins 1997 No 152, Sch 1 [36]. Subst 2005 No 43, Sch 5 [1].
pt 6, div 1A: Ins 1997 No 152, Sch 1 [36].
118A Power of entry
(1) For the purpose of enabling a council to exercise the council’s functions, the council may authorise a person, in writing, to enter any premises.(2), (2A) (Repealed)(2B) The principal certifying authority for any development may enter the land on which the development is carried out, including any building or work being erected on the land, for the purpose of exercising his or her functions under this Act and the regulations as the principal certifying authority with respect to the development.(2C) Subject to the regulations, this Division (other than section 118BA) applies to a principal certifying authority referred to in subsection (2B) as if his or her functions as a principal certifying authority were the functions of a council and as if he or she had been authorised by a council to enter premises for the purpose of exercising those functions.(3) Entry may only be made at any reasonable hour in the daytime or at any hour during which business is in progress or is usually carried on at the premises.s 118A: Ins 1997 No 152, Sch 1 [36]. Am 1998 No 120, Sch 1.15 [4]; 2001 No 56, Sch 1.3 [1]; 2002 No 134, Sch 1.1 [31]; 2003 No 95, Sch 1 [36]; 2005 No 43, Sch 5 [2]; 2008 No 36, Sch 4.1 [24].
118B Inspections and investigations
For the purpose of enabling a council to exercise the council’s functions, a person authorised to enter premises under this Division may:(a) inspect the premises and any article, matter or thing on the premises, and(b) for the purpose of an inspection:(i) open any ground and remove any flooring and take such measures as may be necessary to ascertain the character and condition of the premises and of any pipe, sewer, drain, wire or fitting, and(ii) require the opening, cutting into or pulling down of any work if the person authorised has reason to believe or suspect that anything on the premises has been done in contravention of this Act, the regulations or an environmental planning instrument, and(c) take measurements, make surveys and take levels and, for those purposes, dig trenches, break up the soil and set up any posts, stakes or marks, and(d) require any person at those premises to answer questions or otherwise furnish information in relation to the matter the subject of the inspection or investigation, and(e) take samples or photographs in connection with any inspection.s 118B: Ins 1997 No 152, Sch 1 [36]. Am 1999 No 31, Sch 1.12 [2] [3]; 2001 No 56, Sch 1.3 [1]; 2005 No 43, Sch 5 [3] [4].
118BA Power of authorised persons to require answers and record evidence
(1) A person authorised to enter premises under this Division () may require an accredited certifier, a person carrying out building work or subdivision work or any other person whom the authorised person suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required to enable the council concerned to exercise its functions under this Act to answer questions in relation to those matters.(2) An authorised person may require a corporation to nominate a director or officer of the corporation who is authorised to represent the corporation for the purposes of answering questions under this section.(3) An authorised person may, by notice in writing, require a person referred to in subsection (1) to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.(4) The place and time at which a person may be required to attend under subsection (3) is to be:(a) a place and time nominated by the person, or(b) if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised person that is reasonable in the circumstances.(5) An authorised person may cause any questions and answers to questions given under this section to be recorded if the authorised person has informed the person who is to be questioned that the record is to be made.(6) A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the authorised person.(7) A copy of any such record must be provided by the authorised person to the person who is questioned as soon as practicable after it is made.(8) A record may be made under this section despite the provisions of any other law.s 118BA: Ins 2008 No 36, Sch 4.1 [25].
118C Notice of entry
(1) Before a person authorised to enter premises under this Division does so, the council or the person must give the owner or occupier of the premises written notice of the intention to enter the premises.(2) The notice must specify the day on which the person intends to enter the premises and must be given before that day.(3) This section does not require notice to be given:(a) if entry to the premises is made with the consent of the owner or occupier of the premises, or(b) if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or(c) if entry is required urgently and the case is one in which the general manager of the council has authorised in writing (either generally or in the particular case) entry without notice.s 118C: Ins 1997 No 152, Sch 1 [36]. Am 1999 No 31, Sch 1.12 [2] [4]; 2005 No 43, Sch 5 [3] [5].
118D Use of force
(1) Reasonable force may be used for the purpose of gaining entry to any premises (other than residential premises) under a power conferred by this Division, but only if authorised by the council in accordance with this section.(2) The authority of the council:(a) must be in writing, and(b) must be given in respect of the particular entry concerned, and(c) must specify the circumstances which are required to exist before force may be used.s 118D: Ins 1997 No 152, Sch 1 [36]. Am 1999 No 31, Sch 1.12 [2]; 2005 No 43, Sch 5 [3].
118E Notification of use of force or urgent entry
(1) A person authorised to enter premises under this Division who:(a) uses force for the purpose of gaining entry to the premises, ormust promptly advise the council.(b) enters the premises in an emergency without giving written notice to the owner or occupier,(2) The council must give notice of the entry to such persons or authorities as appear to the council to be appropriate in the circumstances.s 118E: Ins 1997 No 152, Sch 1 [36]. Am 1998 No 54, Sch 1.9 [31]; 1999 No 31, Sch 1.12 [2] [5]; 2005 No 43, Sch 5 [3] [6].
118F Care to be taken
(1) In the exercise of a function under this Division, a person authorised to enter premises must do as little damage as possible. The council must provide, if necessary, other means of access in place of any taken away or interrupted by a person authorised by it.(2) As far as practicable, entry on to fenced land is to be made through an existing opening in the enclosing fence. If entry by that means is not practicable, a new opening may be made in the enclosing fence, but the fence is to be fully restored when the need for entry ceases.ss 118F–118I: Ins 1997 No 152, Sch 1 [36]. Am 1999 No 31, Sch 1.12 [2]; 2005 No 43, Sch 5 [3].
118G Recovery of cost of entry and inspection
If a person authorised by a council enters any premises under this Division for the purpose of making an inspection and as a result of that inspection, under a power conferred on the council, the council requires any work to be carried out on or in the premises, the council may recover the reasonable costs of the entry and inspection from the owner or occupier of the premises.ss 118F–118I: Ins 1997 No 152, Sch 1 [36]. Am 1999 No 31, Sch 1.12 [2]; 2005 No 43, Sch 5 [3].
118H Compensation
A council must pay compensation for any damage caused by any person authorised by the council under this Division to enter premises, other than damage arising from work done for the purpose of an inspection which reveals that there has been a contravention of this Act, the regulations or an environmental planning instrument.ss 118F–118I: Ins 1997 No 152, Sch 1 [36]. Am 1999 No 31, Sch 1.12 [2]; 2005 No 43, Sch 5 [3].
118I Authority to enter premises
(1) A power conferred by this Division to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority if required to do so by the owner or occupier of the premises.(2) The authority must be a written authority which is issued by the council and which:(a) states that it is issued under this Act, and(b) gives the name of the person to whom it is issued, and(c) describes the nature of the powers conferred and the source of the powers, and(d) states the date (if any) on which it expires, and(e) describes the kind of premises to which the power extends, and(f) in the case of a council, bears the signature of the general manager.(3) This section does not apply to a power conferred by a search warrant.ss 118F–118I: Ins 1997 No 152, Sch 1 [36]. Am 1999 No 31, Sch 1.12 [2]; 2005 No 43, Sch 5 [3].
118J In what circumstances can entry be made to a residence?
The powers of entry and inspection conferred by this Division are not exercisable in relation to that part of any premises being used for residential purposes except:(a) with the permission of the occupier of that part of the premises, or(b) if entry is necessary for the purpose of inspecting work being carried out under a development consent (including a complying development certificate), or(c) under the authority conferred by a search warrant, or(d) if an application for a building certificate has been made under section 149B in respect of premises used for residential purposes and entry is necessary for the purpose of inspecting the premises in order to issue a building certificate in accordance with sections 149A–149E.s 118J: Ins 1997 No 152, Sch 1 [36]. Am 1999 No 72, Sch 4 [12].
118K Search warrants
(1) A person generally or specially authorised by a council for the purposes of this section may apply to an authorised officer if the authorised person has reasonable grounds for believing that the provisions of this Act, the regulations, an environmental planning instrument or the terms of a development consent, complying development certificate or order under this Act have been or are being contravened in or on any premises.(2) An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised person named in the warrant:(a) to enter the premises, and(b) to search the premises for evidence of a contravention of this Act, the regulations, an environmental planning instrument or the terms of a development consent, complying development certificate or order under this Act.(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.(4) Without limiting the generality of section 71 of the Law Enforcement (Powers and Responsibilities) Act 2002, a police officer:(a) may accompany an authorised person executing a search warrant issued under this section, and(b) may take all reasonable steps to assist the authorised person in the exercise of the person’s functions under this section.(5) In this section:has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.s 118K: Ins 1997 No 152, Sch 1 [36]. Am 1999 No 31, Sch 1.12 [2]; 2002 No 103, Sch 4.31 [1]–[4]; 2005 No 43, Sch 5 [3].
118L Special provision with respect to fire brigades
(1) An authorised fire officer within the meaning of section 121ZC may exercise the functions conferred on a person authorised by a council under this Division for the purpose of inspecting a building to determine:(a) whether or not adequate provision for fire safety has been made in or in connection with the building, or(b) whether or not such of the provisions of this or any other Act or law as may be prescribed for the purposes of this paragraph have been complied with.(2) An inspection for the purposes of subsection (1) (a) is not, however, authorised for premises other than places of shared accommodation except:(a) when requested by the council of the area in which the building is located, or(b) when requested by a person who holds himself or herself out as the owner, lessee or occupier of the building, or(c) when the Commissioner of New South Wales Fire Brigades has received a complaint in writing that adequate provision for fire safety has not been made concerning the building.(3) A council must, at the request of the Commissioner of New South Wales Fire Brigades, make available a person authorised by the council for the purposes of the inspection, and the person concerned is to be present during the inspection.(4) The Commissioner of New South Wales Fire Brigades must send a report of any inspection carried out under this section to the council concerned.(5) This Division applies to an authorised fire officer within the meaning of section 121ZC in the same way as it applies to a council and a council employee (or other person) authorised by the council.s 118L: Ins 1997 No 152, Sch 1 [36]. Am 1999 No 31, Sch 1.12 [2]; 2005 No 43, Sch 5 [3].
118M Councils to carry out fire-safety inspections on request of Commissioner of NSW Fire Brigades
(1) A council must, at the written request of the Commissioner of New South Wales Fire Brigades, cause any building specified in the request to be inspected for the purpose of determining whether or not adequate provision for fire safety has been made in or in connection with the building.(2) As soon as practicable after such an inspection has been carried out, the council must send a report of the inspection to the Commissioner of New South Wales Fire Brigades.s 118M: Ins 1997 No 152, Sch 1 [36].
118N Obstruction of authorised persons
(1) A person must not:(a) without reasonable excuse, refuse or fail to comply with any notice given or requirement made, or to answer any question asked, by an authorised person under this Division, or(b) wilfully delay, hinder or obstruct an authorised person in the exercise of the authorised person’s functions under this Division, or(c) furnish an authorised person with information that the person knows (or ought reasonably to know) is false or misleading in a material particular.Maximum penalty: 20 penalty units.(2) Section 122U applies to and in respect of:(a) an offence under subsection (1) of failing or refusing to comply with a requirement to furnish information or answer a question under this Division in the same way as it applies to an offence of failing or refusing to comply with a requirement to furnish information or answer a question under Division 2C, and(b) a requirement to furnish information or answer a question under this Division in the same way as it applies to a requirement to furnish information or answer a question under Division 2C.s 118N: Ins 1997 No 152, Sch 1 [36]. Subst 2008 No 36, Sch 4.1 [26].
Division 1B
118O–118R (Repealed)
pt 6, div 1B: Ins 2003 No 95, Sch 1 [37]. Rep 2005 No 115, Sch 3.2 [16].
ss 118O–118Q: Ins 2003 No 95, Sch 1 [37]. Rep 2005 No 115, Sch 3.2 [16].
s 118R: Ins 2003 No 95, Sch 1 [37]. Am 2005 No 43, Sch 5 [7]. Rep 2005 No 115, Sch 3.2 [16].
Division 2 Settlement of disputes
pt 6, div 2, hdg: Am 2008 No 36, Sch 2.2 [69].
119–120A (Repealed)
s 119: Am 1985 No 228, Schs 1 (7), 2 (3), 8 (13); 1992 No 90, Sch 1; 1996 No 44, Sch 8 [3] [4]; 1998 No 120, Sch 1.15 [5]; 2005 No 43, Sch 1 [30]. Rep 2008 No 36, Sch 2.2 [70].
s 119A: Ins 2002 No 44, Sch 1 [4]. Rep 2008 No 36, Sch 2.2 [70].
s 120: Am 1992 No 112, Sch 1; 1996 No 31, Sch 1 [1]. Rep 2008 No 36, Sch 2.2 [70].
s 120A: Ins 1996 No 31, Sch 1 [2]. Am 1997 No 63, Sch 3 [1]–[7]; 2000 No 92, Sch 8.8 [2]–[11]. Rep 2008 No 36, Sch 2.2 [70].
121 Settlement of disputes
(1) Where a dispute arises between the Department or the Director-General, and a public authority, other than a council, with respect to:(a) the operation of any provision made by or under this Act, the regulations or an environmental planning instrument, ora party to the dispute may submit that dispute to the Premier for settlement in accordance with this section.(b) the exercise of any function conferred or imposed upon the Department or the Director-General or upon the public authority by or under this Act, the regulations or an environmental planning instrument,(1A) Where a dispute arises between a public authority, other than a council, and another public authority, other than a council, with respect to:(a) the operation of any provision made by or under this Act, the regulations or an environmental planning instrument, ora party to the dispute may submit that dispute to the Premier for settlement in accordance with this section.(b) the exercise of any function conferred or imposed upon any such public authority by or under this Act, the regulations or an environmental planning instrument,(2) Where a dispute arises between a public authority (including the Department and the Director-General) and a council with respect to:(a) the operation of any provision made by or under this Act, the regulations or an environmental planning instrument, ora party to the dispute may submit that dispute to the Minister for settlement in accordance with this section.(b) the exercise of any function conferred or imposed upon the public authority or council by or under this Act, the regulations or an environmental planning instrument,(3) On the submission of a dispute to the Premier or the Minister under subsection (1), (1A) or (2), the Premier or Minister may appoint a member of the Planning Assessment Commission to hold an inquiry and make a report to the Premier or the Minister with respect to that dispute or may himself or herself hold an inquiry with respect to that dispute.(4) After the completion of an inquiry held under subsection (3) and, where a report is made to the Premier or the Minister under that subsection, after consideration by the Premier or the Minister of that report, the Premier or the Minister, as the case may be, may make such order with respect to the dispute, having regard to the public interest and to the circumstances of the case, as the Premier or the Minister thinks fit.(5) An order made by the Premier or the Minister under subsection (4) may direct the payment of any costs or expenses of or incidental to the holding of the inquiry.(6) The Department, the Director-General, a council or other public authority, as the case may be, shall comply with an order given under subsection (4), and shall, notwithstanding the provisions of any Act, be empowered to comply with any such order.(7) The provisions of any other Act relating to the settlement of disputes do not apply to the settlement of a dispute referred to in subsection (1), (1A) or (2).s 121: Am 1985 No 228, Sch 8 (14); 1999 No 72, Sch 4 [13] [14]; 2008 No 36, Sch 2.2 [71].
Division 2A Orders
pt 6, div 2A: Ins 1997 No 152, Sch 1 [37].
121A Definitions
In this Division:includes, in the case of a project to which Part 3A applies, the Minister.development consent includes, in the case of a project to which Part 3A applies, an approval under that Part to carry out the project.order means an order under this Division.s 121A: Ins 1997 No 152, Sch 1 [37]. Am 2005 No 43, Sch 5 [8].
121B Orders that may be given by consent authority or by Minister etc
(1) An order may be given to a person by:(aa) the Minister or the Director-General (but only in connection with a project to which Part 3A applies or in connection with development for which the Minister or Director-General is or has been the consent authority), or(a) a council, orto do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.(b) any other person who exercises functions as a consent authority, except in relation to complying development for which a complying development certificate has been issued,
(Repealed)
121C Giving orders to public authorities
(1) An order under this Division may not be given in respect of the following land without the prior written consent of the Minister:(a) vacant Crown land,(b) a reserve within the meaning of Part 5 of the Crown Lands Act 1989,(c) a common within the meaning of the Commons Management Act 1989.(2) The Minister must not give consent in respect of vacant Crown land or a reserve within the meaning of Part 5 of the Crown Lands Act 1989 until after the Minister has consulted the Minister administering the Crown Lands Act 1989.s 121C: Ins 1997 No 152, Sch 1 [37].
121D Circumstances in which compliance with sections 121F–121K is required
Before giving an order, the person who gives the order must comply with sections 121F–121K, except for:(a) order No 8 or No 19 in the Table to section 121B (1), or(b) an order given, and expressed to be given, in an emergency, or(c) an order given by the Minister or the Director-General in connection with a project to which Part 3A applies.s 121D: Ins 1997 No 152, Sch 1 [37]. Am 1998 No 54, Sch 2.12 [11] [12]; 2005 No 43, Sch 5 [12]; 2008 No 36, Sch 4.1 [29].
121E Effect of compliance with sections 121F–121K
A person who complies with sections 121F–121K is taken to have observed the rules of natural justice (the rules of procedural fairness).s 121E: Ins 1997 No 152, Sch 1 [37]. Am 1998 No 54, Sch 2.12 [13].
121F Criteria to be considered before order is given
If a council has adopted criteria in a development control plan on which it is to give an order, the council is required to take the criteria into consideration before giving the order.s 121F: Ins 1997 No 152, Sch 1 [37]. Am 2005 No 43, Sch 2 [18].
121G Orders that make or are likely to make residents homeless
(1) If an order will or is likely to have the effect of making a resident homeless, the person who gives the order must consider whether the resident is able to arrange satisfactory alternative accommodation in the locality.(2) If the resident is not able to arrange satisfactory alternative accommodation in the locality, the person who gives the order must provide the resident with:(a) information as to the availability of satisfactory alternative accommodation in the locality, and(b) any other assistance that the person considers appropriate.s 121G: Ins 1997 No 152, Sch 1 [37].
121H Notice to be given of proposed order
(1) Notice to whom the order is to be given Before giving an order, the person who gives the order must give notice to the person to whom the order is proposed to be given of the intention to give the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with.(2) The notice must also indicate that the person to whom the order is proposed to be given may make representations to the person who gives the order as to why the order should not be given or as to the terms of or period for compliance with the order.(3) The notice may provide that the representations are to be made to the person who gives the order or a nominated person on a nominated date, being a date that is reasonable in the circumstances of the case. In the case of a council this may be a specified committee of the council on a specified meeting date or to a specified employee of the council on or before a specified date.(4) Notice to the other consent authorities If a council proposes to give an order in relation to development for which another person is the consent authority, the council must give the other person notice of its intention to give the order.(5) Notice to principal certifying authority If a council proposes to give an order in relation to building work or subdivision work for which the council is not the principal certifying authority, the council must give the principal certifying authority notice of its intention to give the order.s 121H: Ins 1997 No 152, Sch 1 [37]. Am 2003 No 95, Sch 1 [38].
121I Making of representations
(1) A person may, in accordance with a notice under section 121H, make representations concerning the proposed order.(2) For the purpose of making the representations, the person may be represented by an Australian legal practitioner or agent.s 121I: Ins 1997 No 152, Sch 1 [37]. Am 1998 No 54, Sch 2.12 [14]; 2005 No 98, Sch 3.23 [1].
121J Hearing and consideration of representations
The person who gives the order or the nominated person is required to hear and to consider any representations made under section 121I.s 121J: Ins 1997 No 152, Sch 1 [37].
121K Procedure after hearing and consideration of representations
(1) After hearing and considering any representations made concerning the proposed order, the person who gives the order or the nominated person may determine:(a) to give an order in accordance with the proposed order, or(b) to give an order in accordance with modifications made to the proposed order, or(c) not to give an order.(2) If the determination is to give an order in accordance with modifications made to the proposed order, the person who gives the order is not required to give notice under this Division of the proposed order as so modified.s 121K: Ins 1997 No 152, Sch 1 [37].
121L Reasons for orders to be given
(1) A person who gives an order must give the person to whom the order is directed the reasons for the order.(2) The reasons may be given in the order or in a separate instrument.(3) The reasons must be given when the order is given, except in an emergency. In an emergency, the reasons may be given the next working day.s 121L: Ins 1997 No 152, Sch 1 [37]. Am 1998 No 54, Sch 2.12 [15].
121M Period for compliance with order
(1) An order must specify a reasonable period within which the terms of the order are to be complied with, subject to this section.(2) An order may require immediate compliance with its terms in circumstances which the person who gives the order believes constitute a serious risk to health or safety or an emergency.s 121M: Ins 1997 No 152, Sch 1 [37].
121N Notice of right to appeal against order
A person who gives an order must, in giving a person notice of the order:(a) state that the person may appeal to the Court against the order or a specified part of the order, and(b) specify the period within which an appeal may be made.s 121N: Ins 1997 No 152, Sch 1 [37]. Am 2001 No 56, Sch 1.3 [10].
121O Development consent or approval not required to comply with order
A person who carries out work in compliance with a requirement of an order does not have to make an application under Part 3A for approval or Part 4 for consent to carry out the work.s 121O: Ins 1997 No 152, Sch 1 [37]. Am 2005 No 43, Sch 5 [13].
121P Order may specify standards and work that will satisfy those standards
(1) Instead of specifying the things the person to whom the order is given must do or refrain from doing, an order:(a) may specify the standard that the premises are required to meet, and(b) may indicate the nature of the work that, if carried out, would satisfy that standard.(2) Such an order may require the owner or occupier to prepare and submit to the person who gives the order, within the period (not exceeding 3 months) specified in the order, particulars of the work the owner or occupier considers necessary to make provision for such matters as may be so specified.s 121P: Ins 1997 No 152, Sch 1 [37].
121Q Compliance with order under sec 121P
(1) A person complies with a requirement of an order under section 121P (2) by submitting to the person who gives the order such matters as the person would be required to submit if applying to a consent authority for development consent to carry out the work.(2) (Repealed)s 121Q: Ins 1997 No 152, Sch 1 [37]. Am 1998 No 54, Sch 1.9 [33].
121R Consent authority’s response to submission of particulars of work by owner
(1) A person who gives an order must, within 28 days after particulars of work are submitted to the person in accordance with section 121P (2):(a) accept the particulars without modification or with such modifications as the person thinks fit, or(b) reject the particulars.(2) If a person accepts the particulars of work without modification, the person must forthwith order the owner to carry out that work.(3) If a person accepts the particulars of work with modifications or rejects the particulars, or if an owner fails to submit particulars of work in accordance with section 121P (2), the person must:(a) prepare, within 3 months after the acceptance, rejection or failure, particulars of the work that the person considers necessary to make provision for the matters specified in the order given to the owner under section 121P, and(b) order the owner to carry out that work.(4) An order under this section is not invalid merely because of the failure of the person to accept or reject any particulars of work or prepare particulars of any work, as the case may be, within the period it is required to do so by this section.(5) A person may recover from an owner as a debt the person’s expenses of preparing particulars of work under this section.(6) Except for the purposes of section 121ZK (3), an order under this section forms part of the order under section 121B to which it relates.s 121R: Ins 1997 No 152, Sch 1 [37]. Am 1998 No 54, Sch 1.9 [34].
121S Orders affecting heritage items
(1) This section applies to an item of the environmental heritage:(a) to which an interim heritage order or listing on the State Heritage Register under the Heritage Act 1977 applies or to which an order under section 136 of that Act applies, or(b) that is identified as such an item in an environmental planning instrument.(2) A person must not give an order under this Division in respect of an item of the environmental heritage to which this section applies until after the person has considered the impact of the order on the heritage significance of the item.(3) A person must not give an order under this Division in respect of an item of the environmental heritage to which subsection (1) (a) applies until after the person has given notice of the order to the Heritage Council and has considered any submissions duly made to the person by the Heritage Council.(4) The Heritage Council may, by instrument in writing served on a person, exempt the person from the requirements of subsection (3).(5) An exemption under subsection (4) may be given unconditionally or subject to such conditions as the Heritage Council determines, and may be varied or revoked by a subsequent instrument in writing made by the Heritage Council and served on the person.(6) The Heritage Council may make a submission:(a) within 28 days after it is given notice by the person, or(b) if, within 28 days after it is given notice by the person, the Heritage Council requests that a joint inspection of the item be made, within 28 days after the joint inspection is made.(7) If the Heritage Council notifies a person that it wishes to be consulted in connection with an order under section 121R, the person must include a statement to that effect in any order under section 121P.(8) This section does not apply to:(a) order No 3 in the Table to section 121B if given by a person in an emergency, or(b) order No 8, 10 or 11.s 121S: Ins 1997 No 152, Sch 1 [37]. Am 1998 No 138, Sch 2.2 [3].
121T Combined orders
A person who gives an order may include two or more orders in the same instrument.ss 121T–121ZE: Ins 1997 No 152, Sch 1 [37].
121U Giving and taking effect of orders
An order is given by serving a copy of the order on the person to whom it is addressed and takes effect from the time of service or a later time specified in the order.ss 121T–121ZE: Ins 1997 No 152, Sch 1 [37].
121V Orders may be given to two or more persons jointly
If appropriate in the circumstances of the case, an order may direct two or more people to do the thing specified in the order jointly.ss 121T–121ZE: Ins 1997 No 152, Sch 1 [37].
121W Notice in respect of land or building owned or occupied by more than one person
(1) If land, including land on which a building is erected, is owned or occupied by more than one person:(a) an order in respect of the land or building is not invalid merely because it was not given to all of those owners or occupiers, and(b) any of those owners or occupiers may comply with such an order without affecting the liability of the other owners or occupiers to pay for or contribute towards the cost of complying with the order.(2) Nothing in this Division affects the right of an owner or occupier to recover from any other person all or any of the expenses incurred by the owner or occupier in complying with such an order.ss 121T–121ZE: Ins 1997 No 152, Sch 1 [37].
121X Notice of giving of order No 16
A person who gives an order must, on or as soon as practicable after the day on which the person gives an order in the terms of order No 16 in the Table to section 121B, send a copy of the order to:(a) such persons (if any) as are, in the opinion of the person, likely to be disadvantaged by the giving of the order, and(b) such persons (if any) as are referred to in the regulations for the purposes of this section.ss 121T–121ZE: Ins 1997 No 152, Sch 1 [37].
121Y Effect of order on successors in title
An order given to a person binds any person claiming through or under or in trust for or in succession to the person or who is a subsequent owner or occupier to the person, as if the order had been given to that person.ss 121T–121ZE: Ins 1997 No 152, Sch 1 [37].
121Z Compliance with orders by occupiers or managers
If an occupier or manager complies with an order, the occupier or manager may (unless the occupier or manager has otherwise agreed) deduct the cost of so complying (together with interest at the rate currently prescribed by the Supreme Court rules in respect of unpaid judgment debts) from any rent payable to the owner or may recover the cost (and that interest) from the owner as a debt in any court of competent jurisdiction.ss 121T–121ZE: Ins 1997 No 152, Sch 1 [37].
121ZA Occupier of land may be required to permit owner to carry out work
(1) The person who gives an order may order the occupier of any land to permit the owner of the land to carry out such work on the land as is specified in the order (being work that is, in the person’s opinion, necessary to enable the requirements of this Act or the regulations, or of any order under section 121B, to be complied with).(2) An occupier of land on whom such an order is served must, within 2 days after the order is served, permit the owner to carry out the work specified in the order.(3) The owner of the land is not guilty of an offence arising from his or her failure to comply with the requirements of this Act or the regulations, or of any order under section 121B, if, while an order under this section is in force, the occupier of the land refuses to permit the owner to carry out the work specified in the order.(4) Subsection (3) applies only if the owner of the land satisfies the Court that the owner has, in good faith, tried to comply with the requirements concerned.ss 121T–121ZE: Ins 1997 No 152, Sch 1 [37].
121ZB Notice of fire safety orders to be given to Commissioner of NSW Fire Brigades
A person who gives an order must immediately give notice to the Commissioner of New South Wales Fire Brigades of an order given by the person in terms of order No 6 in the Table to section 121B.ss 121T–121ZE: Ins 1997 No 152, Sch 1 [37].
121ZC Powers of fire brigades
(1) An authorised fire officer who inspects a building in accordance with section 118L may give:(a) order No 6 in the Table to section 121B if the order does not require the carrying out of any structural work to the premises concerned, or(b) order No 8 in the Table to section 121B if the premises concerned are a place of shared accommodation, or(c) order No 10 or 11 in the Table to section 121B if a person to whom an order under paragraph (a) or (b) is given has failed to comply with the order.(2) The provisions of:(a) sections 121D–121K, anddo not apply to an order given in accordance with this section in circumstances which the authorised fire officer believes constitute an emergency or a serious risk to safety.(b) section 121Q,(3) For the purpose of giving such an order, an authorised fire officer may exercise such of the powers of a person who gives an order under this Division as are specified in the fire officer’s authorisation under this section.(4) In exercising a power under this Division, an authorised fire officer may be accompanied and assisted by a police officer.(5) An authorised fire officer must forward a copy of an order given under this section to the relevant council.(6) In this section, a reference to an , in relation to the exercise of a power under this Division, is a reference to:(a) the Commissioner of New South Wales Fire Brigades, or(b) a member of staff of New South Wales Fire Brigades who is for the time being authorised by the Minister administering the Fire Brigades Act 1989 to exercise that power, or(c) an officer or member of a fire brigade who is for the time being authorised by the Minister administering the Fire Brigades Act 1989 to exercise that power.ss 121T–121ZE: Ins 1997 No 152, Sch 1 [37].
121ZD Inspection reports by fire brigades
(1) If the Commissioner of New South Wales Fire Brigades carries out an inspection of a building under section 118L, the Commissioner must furnish to the council of the area in which the building is located:(a) a report of the inspection, and(b) if of the opinion that adequate provision for fire safety has not been made concerning the building, such recommendations as to the carrying out of work or the provision of fire safety and fire-fighting equipment as the Commissioner considers appropriate.(2) A council must:(a) table any report and recommendations it receives under this section at the next meeting of the council, and(b) at any meeting of the council held within 28 days after receiving the report and recommendations or at the next meeting of the council held after the tabling of the report and recommendations, whichever is the later, determine whether it will exercise its powers to give order No 6 or 8 in the Table to section 121B.(3) A reference in subsection (2) to a meeting of a council does not include a reference to a special meeting of the council unless the special meeting is called for the purpose of tabling any report and recommendations or making any determination referred to in that subsection.(4) A council must give notice of a determination under this section to the Commissioner of New South Wales Fire Brigades.ss 121T–121ZE: Ins 1997 No 152, Sch 1 [37].
121ZE Details of orders and notices to be given to councils
(1) A person, other than a council, who gives a notice or an order under this Division must immediately give a copy of the notice or order to the council.(2) The person, if requested by the council, must immediately inform the council whether or not the notice is outstanding or the order is in force and of any action proposed to be taken by the person in relation to the notice or order.