An Act to amend the Environmental Planning and Assessment Act 1979 and other Acts with respect to housing and other development; and for other purposes.
1 Name of Act
This Act is the Environmental Planning and Assessment Amendment Act 2012.
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation, except as provided by this section.(2) Sections 1 and 2 and Subschedules 2.6 and 2.9 commence on the date of assent to this Act.(3) Subschedules 2.1, 2.2, 2.7 and 2.8 commence on 12 December 2012.
Schedule 1 Amendment of Environmental Planning and Assessment Act 1979 No 203
[1] Section 74BA
Insert after section 74B:74BA Purpose and status of development control plans(1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development:(a) giving effect to the aims of any environmental planning instrument that applies to the development,(b) facilitating development that is permissible under any such instrument,(c) achieving the objectives of land zones under any such instrument.The provisions of a development control plan made for that purpose are not statutory requirements.(2) The other purpose of a development control plan is to make provisions of the kind referred to in section 74C (1) (b)–(e).(3) Subsection (1) does not affect any requirement under Division 3 of Part 4 in relation to complying development.
[2] Section 74C Preparation of development control plans
Omit section 74C (1) (a). Insert instead:(a) to provide the guidance referred to in section 74BA (1), or
[3] Section 74C (5)
Omit the subsection. Insert instead:(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 a provision of an environmental planning instrument applying to the same land, or(b) it is inconsistent or incompatible with a provision of any such instrument.
[4] Section 79BA Consultation and development consent—certain bush fire prone land
Insert after section 79BA (1B):(1C) The regulations may exclude development from the application of this section subject to compliance with any requirements of the regulations. The regulations may (without limiting the requirements that may be made):(a) require the issue of a certificate by the Commissioner of the NSW Rural Fire Service or other qualified person in relation to the bush fire risk of the land concerned, and(b) authorise the payment of a fee for the issue of any such certificate.
[5] Section 79C Evaluation
Insert after section 79C (3):(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and(c) may consider those provisions only in connection with the assessment of that development application.In this subsection, standards include performance criteria.
[6] Section 94EC Contributions plans—complying development
Insert after section 94EC (2):(3) The regulations may make provision for or with respect to anything for which a contributions plan may make provision under this section (being provisions that apply despite anything to the contrary in the contributions plan). The regulations may provide that the amount of a monetary contribution or levy be determined in a manner and by a person or body authorised by the regulations.
[7] Section 105 Regulations—Part 4
Omit section 105 (2).
[8] Section 109C Part 4A certificates
Insert “or standards” after “specifications” in section 109C (1) (a) (i).
[9] Section 109D Certifying authorities
Omit section 109D (1) (a). Insert instead:(a) a compliance certificate may be issued by:(i) a consent authority, the council or an accredited certifier, or(ii) a person of a class prescribed by the regulations as being authorised to issue a compliance certificate in relation to the matters to be certified,
[10] Section 109NA
Insert after section 109N:109NA Provision of information to replacement principal certifying authorities(1) This section applies when a principal certifying authority () has been appointed to replace another principal certifying authority ().(2) The new principal certifying authority may request the Building Professionals Board in writing to give a direction under this section if the new principal certifying authority is unable to obtain the prescribed information from the old principal certifying authority in relation to the matter for which the new principal certifying authority has been appointed.(3) The Building Professionals Board may give a direction in writing to any of the following persons to provide the prescribed information, or a copy of that information, to the new principal certifying authority within the period specified in the notice:(a) the old principal certifying authority,(b) a person whom the Board reasonably believes has possession of that information.(4) A person must not, without reasonable excuse, fail to comply with a direction given to the person by the Building Professionals Board under this section.(5) It is not a reasonable excuse for the purposes of subsection (4) that any person has a claim to a lien over any document or record that is prescribed information or any other right to keep such a document or record as security for payment.(6) In this section, prescribed information means the following:(a) if the old principal certifying authority is not a council, the documents and records required to be kept under section 60 of the Building Professionals Act 2005 by an accreditation holder in relation to the matter concerned,(b) if the old principal certifying authority is a council, the information required to be provided to the Building Professionals Board under section 74B of the Building Professionals Act 2005 in relation to the person who performed the certification work concerned on behalf of the council and the records required to be kept under that section by the council in relation to the matter concerned.
[11] Section 109P Satisfaction as to compliance with conditions precedent to the issue of certificates
Omit section 109P (2). Insert instead:(2) This section does not apply to a certifying authority (other than a council or consent authority) in relation to any Part 4A certificate or complying development certificate that the certifying authority has issued.
[12] Section 113 Publicity and examination of environmental impact statements
Omit section 113 (4).
[13] Section 121CA Compliance cost notices
Omit section 121CA (1) (c). Insert instead:(c) any costs or expenses relating to an investigation that leads to the giving of the order, and(d) any costs or expenses relating to the preparation or serving of the notice of the intention to give the order, and(e) any other matters associated with the order.
[14] Section 146 Bush fire prone land
Insert after section 146 (2):(2A) The Commissioner of the NSW Rural Fire Service may, in accordance with the regulations, review the designation of land on a bush fire prone land map for an area at any time after the map is certified and revise the map accordingly. The revised map:(a) becomes the bush fire prone land map for the area on being certified by the Commissioner, and(b) is to be provided to the council by the Commissioner.
[15] Section 158A
Insert after section 158:158A Copyright in documents used for purposes of this Act—indemnification(1) A relevant person who is not entitled to copyright in a document that is part of a planning matter is taken to have indemnified all persons using the document for the purposes of this Act against any claim or action in respect of a breach of copyright in the document.(2) For the purposes of this section:(a) a development application or an application for a complying development certificate (or an application to modify a development consent) is a planning matter, and the applicant is the relevant person, and(b) an application for approval to carry out State significant infrastructure (or an application to modify an approval of State significant infrastructure) is a planning matter, and the applicant is the relevant person, and(c) a Part 3A project or concept plan application within the meaning of Schedule 6A (or a request to modify an approval or concept plan under Part 3A), and any environmental assessment or report under Part 3A, is a planning matter, and the applicant is the relevant person, and(d) an environmental impact statement under Part 5 or 5.1 (including any preferred infrastructure report under Part 5.1) is a planning matter, and the proponent under Part 5 or 5.1 is the relevant person, and(e) a planning proposal under Part 3 is a planning matter, and the person preparing the proposal is the relevant person, and(f) a planning agreement referred to in section 93F is a planning matter, and the developer under the agreement is the relevant person, and(g) a matter or thing under this Act that is declared by the regulations for the purposes of this section is a planning matter, and the person declared by the regulations is the relevant person in respect of that matter or thing.(3) For the purposes of this section, a document is part of a planning matter if it forms part of or accompanies the planning matter, or is subsequently submitted by the relevant person in support of the planning matter or is exhibited or made public in accordance with a requirement made by or under this Act in relation to the planning matter.(4) The regulations may limit the operation of this section.(5) This section extends to a planning matter that was made or submitted before the commencement of this section.
[16] Schedule 5 Paper subdivisions
Insert in alphabetical order in clause 1:development plan costs means the following:(a) the costs of obtaining or preparing any reports,(b) the amount of any levies, fees or other charges applicable to the proposed subdivision or subdivision works,(c) administrative costs of the relevant authority relating to the development plan,(d) any other costs prescribed by the regulations for the purposes of this definition.
[17] Schedule 5, clause 1, definition of “subdivision works”
Insert after paragraph (d) of the definition:(e) any other purpose prescribed by the regulations for the purposes of this definition.
[18] Schedule 5, clause 3 (4) and (5)
Insert after clause 3 (3):(4) The Minister may repeal a subdivision order only if the Minister:(a) has consulted with the relevant authority for the subdivision land and the council of the area in which the land is situated, and(b) is satisfied that notice of the proposed repeal has been given to the owners of the land subject to the order in the manner prescribed by the regulations.(5) Subclause (2) (g) does not apply to an order amending a subdivision order.Note—Regulations under clause 6 (3A) may require consent to be obtained to amendments to an applicable development plan.
[19] Schedule 5, clause 6 (2) (c1)
Insert after clause 6 (2) (c):(c1) details of the development plan costs,
[20] Schedule 5, clause 6 (2) (d)
Omit “those costs” where firstly occurring.Insert instead “the costs referred to in paragraphs (c) and (c1)”.
[21] Schedule 5, clause 6 (3A)
Insert after clause 6 (3):(3A) Without limiting subclause (3), the regulations may require the consent of the owners of subdivision land to be obtained to proposed amendments to the applicable development plan in the circumstances, and in the manner, specified by the regulations.
[22] Schedule 5, clause 9 (1) and (3)
Insert “and the development plan costs” after “subdivision works” wherever occurring.
[23] Schedule 5, clause 10 (1) (a)
Insert “or development plan costs” after “subdivision works”.
[24] Schedule 5, clause 17 (1)
Insert “or development plan costs” after “subdivision works”.
[25] Schedule 5, clause 20
Insert after paragraph (b):(c) the effect of the repeal or amendment of a subdivision order, or of the amendment of a development plan.
[26] Schedule 6 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
[27] Schedule 6
Insert at the end of the Schedule with appropriate Part and clause numbers:DefinitionIn this Part:amending Act means the Environmental Planning and Assessment Amendment Act 2012.Application of DCP amendments(1) The amendments made by Schedule 1 [1]–[3] and [5] to the amending Act extend to development control plans in force immediately before the commencement of those amendments.(2) Section 79C (3A), as inserted by the amending Act, does not apply to the determination of a development application made before the commencement of section 79C (3A).
Schedule 2 Amendment of other Acts
2.1, 2.2
(Repealed)[1] Section 8 Suspension or cancellation of accreditation
Insert at the end of section 8 (2) (g):, or(h) the Board has determined, following an assessment undertaken under section 9A, that the person’s accreditation should be suspended or cancelled.
[2] Section 8 (4)
Omit “(2) (c)–(g)”. Insert instead “(2) (c)–(h)”.
[3] Section 9A
Insert after section 9:9A Ongoing assessment of accredited certifiers(1) The Board may, by notice in writing, require an accredited certifier to undertake a specified type of assessment (such as an examination) within the period specified in the notice.(2) The Board may issue a notice under this section for any reason.Note—Action that may be taken by the Board following an assessment includes the suspension or cancellation of accreditation under section 8 or the imposition of conditions on, or variation of the conditions of, accreditation under section 9.
[4] Section 19 Definitions
Insert in alphabetical order in section 19 (1):disciplinary action means any of the following action:(a) any action taken by the Board under section 31 (4) or by the Tribunal under section 34 (2) in respect of an accreditation holder,(b) the suspension of, or imposition of conditions on, a certificate of accreditation under Division 3 of Part 2.
[5] Section 31 Decision after investigation of complaint
Insert after section 31 (5):(5A) When considering what action should be taken under subsection (4) in relation to an accreditation holder, the Board is to take into consideration any previous disciplinary action taken against the accreditation holder. This subsection does not limit any other matter that the Board may take into consideration.
[6] Section 34 Tribunal may make certain disciplinary findings
Insert after section 34 (3):(3A) When considering what action should be taken under subsection (2) in relation to an accreditation holder, the Tribunal is to take into consideration any previous disciplinary action taken against the accreditation holder. This subsection does not limit any other matter that the Tribunal may take into consideration.
[7] Section 38 Definitions
Omit the definition of disciplinary action.
[8] Section 66 Conflicts of interest
Omit section 66 (2). Insert instead:(2) If an accredited certifier issues (otherwise than as a principal certifying authority) a compliance certificate within the meaning of the Environmental Planning and Assessment Act 1979 for an aspect of development, the accredited certifier:(a) does not contravene subsection (1) (a) by being involved in the design of that aspect of the development, and(b) does not contravene subsection (1) (b) by being involved in the carrying out of work on that aspect of the development.(2A) If an accredited certifier issues (otherwise than as a principal certifying authority) a compliance certificate of the kind referred to in section 109C (1) (a) (i) of the Environmental Planning and Assessment Act 1979 for an aspect of development, the accredited certifier does not contravene subsection (1) (e) by being related to a person who was involved in the design of that aspect of the development.
[9] Part 6, Division 4, heading
Omit “offences”. Insert instead “matters”.
[10] Section 73A
Omit the section. Insert instead:73A Requirements relating to contracts for certification work(1) An accredited certifier must not carry out certification work for a person unless the accredited certifier, or the employer of the accredited certifier, has entered into a written contract with the person and that contract complies with the requirements (if any) of the regulations.(2) Without limiting subsection (1), the regulations may make provision for or with respect to the following:(a) requiring contracts to contain provisions to the effect of those prescribed by the regulations,(b) providing that contracts must not contain provisions to the effect of those prescribed by the regulations,(c) requiring specified particulars or information to be included in contracts or to accompany contracts, for example, an information document published by the Board or another person or body,(d) the time or times at which fees and charges under contracts are to be paid.(3) Carrying out certification work in contravention of this section is capable of being unsatisfactory professional conduct or professional misconduct.
[11] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):any other Act that amends this Act
[1] Schedule 1 Principal amendments
Omit Schedule 1 [8], [14], [45] and [46].
[2] Schedule 2 Consequential amendments
Omit the Schedule.
Schedule 4.1 [2] and [17]
Omit the items.
2.6–2.9
(Repealed)sch 2: Am 1987 No 15, sec 30C.