Part 1 Preliminary
1 Name of Regulation
This Regulation is the Environmental Planning and Assessment Regulation 2000.
2 Commencement
This Regulation commences on 1 January 2001.
3 Definitions
(cf clause 3 of EP&A Regulation 1994)
(1) In this Regulation—accredited body corporate has the same meaning as in the Building Professionals Act 2005.alternative solution has the same meaning as in the Building Code of Australia.Apartment Design Guide has the same meaning as in State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development.approval body has the same meaning as in section 4.45 of the Act.assessment method has the same meaning as in the Building Code of Australia.Australian Rail Track Corporation Ltd means the Australian Rail Track Corporation Ltd (ACN 081 455 754).means a person who is authorised by section 9.35(1)(d) of the Act to give fire safety orders.BASIX affected building means any building that contains one or more dwellings, but does not include a hotel or motel.BASIX affected development means any of the following development that is not BASIX excluded development—(a) development that involves the erection (but not the relocation) of a BASIX affected building,(b) development that involves a change of building use by which a building becomes a BASIX affected building,(c) development that involves the alteration, enlargement or extension of a BASIX affected building, where the estimated construction cost of the development is—(i) $100,000 or more—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 October 2006 and before 1 July 2007, or(ii) $50,000 or more—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 July 2007,(d) development for the purpose of a swimming pool or spa, or combination of swimming pools and spas, that services or service only one dwelling and that has a capacity, or combined capacity, of 40,000 litres or more.BASIX certificate means a certificate issued by the Planning Secretary under clause 164A.BASIX excluded development means any of the following development—(a) development for the purpose of a garage, storeroom, car port, gazebo, verandah or awning,(b) alterations, enlargements or extensions to a building listed on the State Heritage Register under the Heritage Act 1977,(c) alterations, enlargements or extensions that result in a space that cannot be fully enclosed (for example, a verandah that is open or enclosed by screens, mesh or other materials that permit the free and uncontrolled flow of air), other than a space can be fully enclosed but for a vent needed for the safe operation of a gas appliance,(d) alterations, enlargements or extensions that the Planning Secretary has declared, by order published in the Gazette, to be BASIX excluded development.BASIX optional development means any of the following development that is not BASIX excluded development—(a) development that involves the alteration, enlargement or extension of a BASIX affected building, where the estimate of the construction cost of the development is—(i) less than $100,000—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 October 2006 and before 1 July 2007, or(ii) less than $50,000—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 July 2007,(b) development for the purpose of a swimming pool or spa, or combination of swimming pools and spas, that services or service only one dwelling and that has a capacity, or combined capacity, of less than 40,000 litres.building premises, in relation to a building, means the building and the land on which it is situated.capital investment value of a development or project includes all costs necessary to establish and operate the project, including the design and construction of buildings, structures, associated infrastructure and fixed or mobile plant and equipment, other than the following costs—(a) amounts payable, or the cost of land dedicated or any other benefit provided, under a condition imposed under Division 7.1 or 7.2 of the Act or a planning agreement under that Division,(b) costs relating to any part of the development or project that is the subject of a separate development consent or project approval,(c) land costs (including any costs of marketing and selling land),(d) GST (within the meaning of A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth).Category 1 fire safety provision means the following provisions of the Building Code of Australia, namely, EP1.3, EP1.4, EP1.6, EP2.1, EP2.2 and EP3.2 in Volume One of that Code and P2.3.2 in Volume Two of that Code.Category 2 fire safety provision means the following provisions of the Building Code of Australia, namely, CP9, EP1.3, EP1.4, EP1.6, EP2.2 and EP3.2 in Volume One of that Code.Category 3 fire safety provision means the following provisions of the Building Code of Australia, namely, EP1.3, EP1.4, EP1.6, EP2.2 and EP3.2 in Volume One of that Code.class, in relation to a building or part of a building, means—(a) in a provision of this Regulation that imposes requirements with respect to a development consent, the class to which the building belongs, as identified by that consent, or(b) in any other provision of this Regulation, the class to which the building or part of a building belongs, as ascertained in accordance with the Building Code of Australia.Class 1 aquaculture development means development that is categorised as Class 1 under Part 5 of State Environmental Planning Policy (Primary Production and Rural Development) 2019.coastal council means a local council to which the Coastal Management Act 2016 applies.competent fire safety practitioner—see clause 167A.means a person whose concurrence is, by the Act or an environmental planning instrument or by Part 7 of the Biodiversity Conservation Act 2016, required by the consent authority before determining a development application.contributions plan means a contributions plan referred to in section 7.18 of the Act.Dark Sky Planning Guideline means the Dark Sky Planning Guideline prepared by the Planning Secretary and published in the Gazette.Note—The Guideline is available on the website of the Department.deemed-to-satisfy provisions has the same meaning as in the Building Code of Australia.design quality principles has the same meaning as in State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development.design review panel has the same meaning as in State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development.dwelling, in relation to a BASIX affected building, means a room or suite of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile.entertainment venue means a building used as a cinema, theatre or concert hall or an indoor sports stadium.environmental impact statement means an environmental impact statement referred to in section 4.12, 5.7 or 5.16 of the Act.existing use right means a right conferred by Division 4.11 of the Act.exit has the same meaning as in the Building Code of Australia.external combustible cladding, in relation to a building, means—(a) any cladding or cladding system comprising metal composite panels, including aluminium, zinc and copper, that is applied to any of the building’s external walls or to any other external area of the building, or(b) any insulated cladding system, including a system comprising polystyrene, polyurethane or polyisocyanurate, that is applied to any of the building’s external walls or to any other external area of the building.fire alarm communication link means that part of a fire alarm system which transmits a fire alarm signal from the system to an alarm monitoring network.fire alarm communication link works means the installation or conversion of a fire alarm communication link to connect with the fire alarm monitoring network of a private service provider, but does not include works that are associated with the alteration, enlargement, extension or change of use of an existing building.Fire Commissioner means the Commissioner of Fire and Rescue NSW.fire compartment has the same meaning as in the Building Code of Australia.fire protection and structural capacity of a building means—(a) the structural strength and load-bearing capacity of the building, and(b) the measures to protect persons using the building, and to facilitate their egress from the building, in the event of fire, and(c) the measures to restrict the spread of fire from the building to other buildings nearby.fire safety engineer means a person holding Category C10 accreditation under the Building Professionals Act 2005.fire safety order means an order of the kind referred to in item 6 of the table to section 121B(1) of the Act and includes, if an order is subsequently made under section 121R of the Act, an order under that section.fire safety requirement means a requirement under the Building Code of Australia relating to—(a) a fire safety system, as defined in the Building Code of Australia, and components of a fire safety system, or(b) the safety of persons in the event of fire, or(c) the prevention, detection or suppression of fire.fire safety schedule means a schedule referred to in clause 168(1) or 182(2).fire sprinkler system means a system designed to automatically control the growth and spread of fire that may include components such as sprinklers, valves, pipework, pumps, boosters and water supplies.gateway certificate means a gateway certificate issued under Part 4AA of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007.Gateway Panel means the Mining and Petroleum Gateway Panel constituted under Part 4AA of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007.local newspaper means a newspaper circulating throughout the relevant area at intervals of not more than 2 weeks.manor house has the same meaning as in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.multi dwelling housing (terraces) has the same meaning as in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.other advertised development means development of the kind referred to in clause 5(2).performance requirement has the same meaning as in the Building Code of Australia.planning agreement means an agreement referred to in section 7.4 of the Act.Planning Assessment Commission or Commission means the Independent Planning Commission.private service provider means a person or body that has entered into an agreement with Fire and Rescue NSW to monitor fire alarm systems.proprietor, in relation to a registered non-government school, has the same meaning as in the Education Act 1990.qualified designer means a person registered as an architect in accordance with the Architects Act 2003.Note—A building designer may be able to be registered as an architect in accordance with the Architects Act 2003 even though the person may have no formal qualifications in architecture.regional panel means a Sydney district or regional planning panel.registered non-government school means a registered non-government school within the meaning of the Education Act 1990, other than one to which a current certificate of exemption applies under that Act.relevant BASIX certificate, in relation to development, means—(a) in the case of development the subject of development consent—(i) a BASIX certificate that is applicable to the development when development consent is granted or (in the case of development consent modified under section 4.55 of the Act) modified, or(ii) if a replacement BASIX certificate accompanies any subsequent application for a construction certificate, the replacement BASIX certificate applicable to the development when the construction certificate is issued or (in the case of a construction certificate modified under clause 148) modified, or(b) in the case of development the subject of a complying development certificate, a BASIX certificate that is applicable to the development when the complying development certificate is granted or (in the case of a complying development certificate modified under section 4.30 of the Act) modified.relevant submission period means—(a) in relation to submissions concerning a draft development control plan, the submission period specified for the plan in the notice referred to in clause 18(1), or(b) in relation to submissions concerning a draft contributions plan, the submission period specified for the plan in the notice referred to in clause 28, or(c) in relation to submissions concerning designated development that has been notified as required by section 79(1) of the Act, the submission period specified for the development in the notice referred to in clause 78(1), or(d) (Repealed)(e) in relation to submissions concerning nominated integrated development that has been notified as required by section 79A(1) of the Act, the submission period specified for the development in the notice referred to in clause 89(1), or(f) in relation to submissions concerning development that has been notified or advertised as required by a development control plan referred to in section 79A(2) of the Act, the submission period specified for the development in the instrument by which the development has been so notified or advertised, or(g) (Repealed)(h) in relation to submissions concerning development of a kind referred to in two or more of paragraphs (c), (d), (e) and (f), the longer or longest of those periods.required, when used as an adjective, has the same meaning as in the Building Code of Australia.residential apartment development has the same meaning as in State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development.section 7.11 condition means a condition under section 7.11 of the Act requiring the dedication of land or the payment of a monetary contribution, or both.section 7.11 contribution means the dedication of land, the payment of a monetary contribution or the provision of a material public benefit, as referred to in section 7.11 of the Act.section 7.12 condition means a condition under section 7.12 of the Act requiring the payment of a levy.section 7.12 levy means the payment of a levy, as referred to in section 7.12 of the Act.Siding Spring Observatory means the land owned by the Australian National University at Siding Spring and the buildings and equipment on that land.site compatibility certificate means the following—(a) site compatibility certificate (affordable rental housing),(b) site compatibility certificate (infrastructure),(c) site compatibility certificate (seniors housing),(d) site compatibility certificate (schools or TAFE establishments).site compatibility certificate (affordable rental housing) means a certificate issued under clause 37(5) of State Environmental Planning Policy (Affordable Rental Housing) 2009.site compatibility certificate (infrastructure) means a certificate issued under clause 19(5) of State Environmental Planning Policy (Infrastructure) 2007.site compatibility certificate (schools or TAFE establishments) means a certificate issued under clause 15(5) of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017.site compatibility certificate (seniors housing) means a certificate issued under clause 25(4) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.site verification certificate means a site verification certificate issued under Part 4AA of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007.Standard Instrument means the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006.temporary building means—(a) a temporary structure, or(b) a building that is stated to be a temporary building in a development consent or complying development certificate granted or issued in relation to its erection.the Act means the Environmental Planning and Assessment Act 1979.Note—The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.(2) A reference in this Regulation to building work does not include a reference to any physical activity involved in the erection of a temporary structure.Note—Building work is defined by the Act to mean any physical activity involved in the erection of a building.(3) A reference in this Regulation to an existing building does not include a reference to a temporary structure.cl 3: Am 2001 No 112, Sch 2.17; 19.7.2002; 26.7.2002; 2003 No 89, Sch 2.2; 25.6.2004; 3.9.2004; 2005 (339), Sch 1 [1] [2]; 2005 (599), Sch 1 [1]–[3]; 2005 No 115, Sch 3.3 [1]; 2006 (89), Sch 1 [1]; 2006 (600), Sch 1 [1] [2]; 2006 No 120, Sch 2.26; 2007 (19), Sch 1 [1]; 2007 (495), Sch 1 [1]; 2007 (496), Sch 1 [1] [2]; 2007 (623), Sch 1 [1]; 2008 (467), Sch 1 [1]; 2008 (506), Sch 1 [1]; 2009 (269), Sch 1 [1]; 2009 (355), Sch 1 [1]; 2009 (511), Sch 1 [1]; 2009 No 106, Sch 2.13 [1]; 2010 (104), Sch 1 [1]; 2010 No 78, Sch 3.3 [1]; 2011 (64), Sch 1 [1]; 2011 (510), Sch 2 [1]–[3]; 2012 (668), Sch 1 [1]; 2013 (578), Sch 2 [1]; 2013 (705), Sch 1 [1]–[6]; 2014 (452), Sch 1 [1]; 2015 (289), Sch 1 [1]; 2015 (315), Sch 1 [1] [2]; 2015 No 15, Sch 3.26 [2]; 2016 No 20, Sch 4.2 [1]; 2016 (303), Sch 1 [1]; 2017 (307), Sch 1 [1]; 2017 (440), Sch 1 [1]; 2017 (491), Sch 1 [1] [2]; 2018 (66), Sch 2 [1] [2] [22]; 2018 (130), Sch 1 [1A]; 2018 (499), Sch 1 [1]; 2018 (500), Sch 2 [2]; 2019 (120), Sch 1 [1].
3A Exclusion from definition of “development”
For the purposes of the definition of development in section 1.5 of the Act, the demolition of a temporary structure is prescribed as not being such development.cl 3A: Ins 2007 (496), Sch 1 [3]. Am 2018 (66), Sch 2 [22].
3B Extension of meaning of “work”
For the purposes of the definition of work in section 1.4(1) of the Act, the deposit of material on a beach or land within a beach fluctuation zone (within the meaning of the Coastal Management Act 2016) is specified to be a work.cl 3B: Ins 2016 No 20, Sch 4.2 [2]. Am 2018 (500), Sch 2 [3] [4].
4 What is designated development?
(cf clause 53C of EP&A Regulation 1994)
(1) Development described in Part 1 of Schedule 3 is declared to be designated development for the purposes of the Act unless it is declared not to be designated development by a provision of Part 2 or 3 of that Schedule.(2) Part 4 of Schedule 3 defines certain words and expressions used in that Schedule.(3) Part 5 of Schedule 3 prescribes how certain distances are to be measured for the purposes of that Schedule.(4) Schedule 3, as in force when a development application is made, continues to apply to and in respect of the development application regardless of any subsequent substitution or amendment of that Schedule, and the application is unaffected by any such substitution or amendment.(5) References in subclause (4) to Schedule 3 include references to Schedule 3 to the Environmental Planning and Assessment Regulation 1994.
5 (Repealed)
cl 5: Am 2004 No 91, Sch 2.28 [1]; 2005 (391), Sch 1 [1]; 2011 (510), Sch 2 [4]–[7]; 2017 (440), Sch 1 [2]. Rep 2018 (66), Sch 2 [3].
6 When is public notice given?
(cf clause 5 of EP&A Regulation 1994)
Public notice in a local newspaper is given for the purposes of this Regulation when the notice is first published in a local newspaper, even if the notice is required to be published more than once or in more than one newspaper.
7 Building Code of Australia
(cf clause 5A of EP&A Regulation 1994)
(1) For the purposes of the definition of Building Code of Australia in section 1.4 of the Act—(a1) the document referred to in that definition is—(i) the document published in October 1996 under the title Building Code of Australia, or(ii) if the document referred to in subparagraph (i) (or any replacement document under this subparagraph) is replaced by another document published under a title that includes the words “Building Code of Australia” together with a reference to the year 2004 or a later year, that other document, and(a) all amendments to that Code that are from time to time made by the Australian Building Codes Board are prescribed, and(b) all variations of that Code that are from time to time approved by the Australian Building Codes Board in relation to New South Wales are prescribed.(2) Any such amendment or variation comes into effect on the adoption date specified in that regard for New South Wales in the document by which the amendment or variation is published on behalf of the Australian Building Codes Board.(2A), (3) (Repealed)cl 7: Am 27.2.2004; 2007 (496), Sch 1 [4]; 2009 (146), cl 3; 2009 (511), Sch 1 [2]; 2018 (66), Sch 2 [22].
8 Notes
(cf clause 4 of EP&A Regulation 1994)
The explanatory note, table of contents and notes in this Regulation do not form part of this Regulation.
Part 1A
8A–8P (Repealed)
pt 1A, hdg: Ins 2005 (391), Sch 1 [2]. Am 2011 (510), Sch 2 [8]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
pt 1A: Ins 2005 (391), Sch 1 [2]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 8A: Ins 2005 (391), Sch 1 [2]. Am 2007 (342), Sch 1 [1]; 2008 (467), Sch 1 [2]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cll 8B: Ins 2005 (391), Sch 1 [2]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cll 8C: Ins 2005 (391), Sch 1 [2]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 8D: Ins 2005 (391), Sch 1 [2]. Am 2007 (342), Sch 1 [2]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 8E: Ins 2005 (391), Sch 1 [2]. Am 2007 (342), Sch 1 [3]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 8F: Ins 2005 (391), Sch 1 [2]. Am 2006 (195), Sch 1 [1]–[6]; 2007 (342), Sch 1 [4]–[7]; 2009 No 58, Sch 2.3 [1]; 2010 (104), Sch 1 [2]–[7]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 8G: Ins 2005 (391), Sch 1 [2]. Am 2008 (467), Sch 1 [3]; 2011 (510), Sch 2 [9]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 8H: Ins 2005 (391), Sch 1 [2]. Subst 2007 (6), Sch 1 [1]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 8I: Ins 2005 (391), Sch 1 [2]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 8J: Ins 2005 (391), Sch 1 [2]. Am 2005 (781), Sch 1 [1]–[4]; 2006 (195), Sch 1 [7]–[12]; 2007 (342), Sch 1 [8]–[10]; 2009 No 106, Sch 2.13 [2]; 2010 (104), Sch 1 [8]; 2010 (513), Sch 1 [1]–[3]; 2011 (510), Sch 2 [10] [11]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 8K: Ins 2005 (831), Sch 1 [1]. Am 2010 (655), Sch 1 [1]–[4]; 2011 (676), cl 3; 2012 (128), cl 3; 2012 (347), cl 3. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 8L: Ins 2005 (831), Sch 1 [1]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 8M: Ins 2007 (342), Sch 1 [11]. Am 2010 (104), Sch 1 [9]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 8N: Ins 2007 (342), Sch 1 [11]. Am 2009 No 106, Sch 2.13 [2]; 2010 (104), Sch 1 [10]; 2015 (583), Sch 1 [1] [2]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 8O: Ins 2007 (342), Sch 1 [11]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 8OA: Ins 2007 (552), Sch 1. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 8P: Ins 2007 (342), Sch 1 [11]. Rep 2018 (66), Sch 2 [4] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
Part 2 Environmental planning instruments
pt 2: Subst 2009 (268), Sch 1 [1].
pt 2, div 1, hdg: Rep 2009 (268), Sch 1 [1].
9 (Repealed)
cl 9: Subst 2009 (268), Sch 1 [1]. Rep 2018 (66), Sch 2 [5].
pt 2, div 2, hdg: Rep 2009 (268), Sch 1 [1].
10 Public authorities must concur in proposed reservation of land by LEP
A planning proposal for a proposed LEP may not contain a proposed reservation of land for a purpose referred to in section 3.14(1)(c) of the Act unless the public authority that is to be designated for the purposes of section 3.15 of the Act as the authority required to acquire the land has notified the relevant planning authority of its concurrence to the reservation of the land for that purpose.cl 10: Subst 2009 (268), Sch 1 [1]. Am 2018 (66), Sch 2 [22].
10A Notification when council does not support request to prepare planning proposal
When a council does not support a written request made to the council by a person for the preparation of a planning proposal under Part 3 of the Act, the council is required to notify the person as soon as practicable in writing that the proposal is not supported.cl 10A: Ins 2012 (542), Sch 1 [1].
11 Fee payable for costs and expenses of studies etc by relevant planning authority
(1) The relevant planning authority may enter into an agreement with a person who requests the preparation of a planning proposal under Part 3 of the Act for the payment of the costs and expenses incurred by the authority in undertaking studies and other matters required in relation to the planning proposal.(2) The fee payable to the relevant planning authority for the payment of those costs and expenses is—(a) if the authority is a council—the fee set out or determined in accordance with the agreement, or(b) in any other case—an amount (not exceeding $25,000) determined by the authority to cover the costs and expenses reasonably incurred by the authority in undertaking the studies or other matters, or such greater amount as may be agreed in the particular case.(3) A fee payable by a person under this clause is due and payable at the time notified in writing to the person by the relevant planning authority.(4) If the relevant planning authority is the Commission or a Sydney district or regional planning panel, the functions of the relevant planning authority under this clause are exercisable by the Planning Secretary.(5) A reference in this clause to an agreement includes a reference to an arrangement.cl 11: Subst 2009 (268), Sch 1 [1]; 2012 (542), Sch 1 [2]. Am 2018 (66), Sch 2 [6].pt 2, div 3, hdg: Rep 2009 (268), Sch 1 [1].
12–15A (Repealed)
cl 12: Subst 2009 (268), Sch 1 [1]. Am 2010 (34), Sch 1 [1] [2]. Rep 2018 (66), Sch 2 [7] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 12A: Ins 2010 (34), Sch 1 [3]. Rep 2018 (66), Sch 2 [8] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 13: Subst 2009 (268), Sch 1 [1]. Rep 2017 (440), Sch 1 [3].
cl 14: Subst 2009 (268), Sch 1 [1]. Rep 2018 (66), Sch 2 [9] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
pt 2, div 4, hdg: Rep 2009 (268), Sch 1 [1].
cl 15: Subst 2009 (268), Sch 1 [1]. Rep 2018 (66), Sch 2 [10] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
cl 15A: Ins 2009 (268), Sch 1 [1]. Rep 2018 (66), Sch 2 [11] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
Part 3 Development control plans
Division 1 Preparation of development control plans by councils
16 In what form must a development control plan be prepared?
(cf clause 15 of EP&A Regulation 1994)
(1) A development control plan must be in the form of a written statement, and may include supporting maps, plans, diagrams, illustrations and other materials.(2) A development control plan must describe the land to which it applies, and must identify any local environmental plan or deemed environmental planning instrument applying to that land.
17, 17A (Repealed)
cl 17: Rep 2005 No 43, Sch 7.3 [1].
cl 17A: Ins 24.11.2000. Rep 2005 (600), Sch 1 [1].
Division 2 Public participation
18 Draft development control plan must be publicly exhibited
(cf clause 17 of EP&A Regulation 1994)
(1) Following the preparation of a draft development control plan, the council—(a) must give public notice in a local newspaper of the places, dates and times for inspection of the draft plan,(b) must publicly exhibit at the places, on the dates and during the times set out in the notice—(i) a copy of the draft plan, and(ii) a copy of any relevant local environmental plan or deemed environmental planning instrument, and(c) must specify in the notice the period during which submissions about the draft plan may be made to the council (which must include the period during which the plan is being publicly exhibited).(2) A draft development control plan must be publicly exhibited for at least 28 days.
19 Copies of draft development control plans to be publicly available
(cf clause 18 of EP&A Regulation 1994)
Copies of the draft development control plan, and of any relevant local environmental plan or deemed environmental planning instrument, are to be made available to interested persons, either free of charge or on payment of reasonable copying charges.
20 Who may make submissions about a draft development control plan?
(cf clause 19 of EP&A Regulation 1994)
Any person may make written submissions to the council about the draft development control plan during the relevant submission period.
Division 3 Approval of development control plans
21 Approval of development control plans
(cf clause 20 of EP&A Regulation 1994)
(1) After considering any submissions about the draft development control plan that have been duly made, the council—(a) may approve the plan in the form in which it was publicly exhibited, or(b) may approve the plan with such alterations as the council thinks fit, or(c) may decide not to proceed with the plan.(2) The council must give public notice of its decision in a local newspaper within 28 days after the decision is made.(3) Notice of a decision not to proceed with a development control plan must include the council’s reasons for the decision.(4) A development control plan comes into effect on the date that public notice of its approval is given in a local newspaper, or on a later date specified in the notice.
21A Approval of development control plans relating to residential apartment development
(1) The council must not approve a draft development control plan (including an amending plan) containing provisions that apply to residential apartment development unless the council—(a) has referred the provisions of the draft development control plan that relate to design quality to the design review panel (if any) constituted for the council’s local government area (or for 2 or more local government areas that include the council’s area), and(b) has taken into consideration—(i) any comments made by the design review panel concerning those provisions, and(ii) the matters specified in Parts 1 and 2 of the Apartment Design Guide.(2) This clause extends to a plan the preparation of which commenced before the constitution of the design review panel.cl 21A: Ins 26.7.2002. Subst 2015 (315), Sch 1 [3].
Division 4 Amendment and repeal of development control plans
22 How may a development control plan be amended or repealed?
(cf clause 21 of EP&A Regulation 1994)
(1) A council may amend a development control plan by a subsequent development control plan.(2) A council may repeal a development control plan—(a) by a subsequent development control plan, or(b) by public notice in a local newspaper of its decision to repeal the plan.
22A Amendment or revocation of development control plan at Minister’s direction
(1) This clause applies if the Minister directs a council under section 3.46 of the Act—(a) to revoke a development control plan, or(b) to amend a development control plan and the direction specifies that the amending plan is not required to be exhibited.(2) The council may amend or revoke the development control plan by making a development control plan.(3) The council must give public notice in a local newspaper of the making of the development control plan not later than 14 days after making the plan.(4) Notice of a development control plan to revoke a development control plan must specify the following—(a) the date the council made the plan and when the plan takes or took effect,(b) the name of the plan that is to be revoked.(5) Notice of a development control plan to amend a development control plan must specify the following—(a) the date the council made the plan and when the plan takes or took effect,(b) the name of the plan that is to be amended,(c) that the amendment is in accordance with a direction under section 3.46 of the Act.(6) The development control plan comes into effect on the date that the notice is given, or 14 days after the council makes the development control plan, whichever occurs first.(7) Clauses 18, 21, 21A, 22 and 23 do not apply to a development control plan made under this clause.cl 22A: Ins 2011 (64), Sch 1 [2]. Am 2018 (500), Sch 2 [5].
23 Procedure for repealing a development control plan by public notice
(cf clause 22 of EP&A Regulation 1994)
(1) Before repealing a development control plan by public notice in a local newspaper, the council must give public notice in a local newspaper—(a) of its intention to repeal the development control plan, and(b) of its reasons for doing so.(2) Publication of the notice of intention must take place at least 14 days before publication of the notice of repeal.(3) The repeal of a development control plan by public notice in a local newspaper takes effect on the date of publication of the notice.
Division 5 Development control plans made by the Planning Secretary
24 Application of Part to development control plans made by Planning Secretary
(cf clause 23 of EP&A Regulation 1994)
This Part applies to a development control plan prepared by the Planning Secretary, as the relevant planning authority, under section 3.43 of the Act, subject to the following modifications—(a) a reference to a council is taken to be a reference to the Planning Secretary,(b) a reference to a local environmental plan or deemed environmental planning instrument is taken to be a reference to a State environmental planning policy.cl 24: Am 2005 (600), Sch 1 [2] [3]; 2009 (268), Sch 1 [2]; 2018 (500), Sch 2 [6].
Division 6 Miscellaneous
pt 3, div 6: Subst 2005 (600), Sch 1 [4].
25 Additional information requested by relevant planning authority
(1) If an environmental planning instrument requires or permits a development control plan to be prepared and submitted to the relevant planning authority, the planning authority may request the owners (as referred to in section 3.44 of the Act) who are submitting the plan to provide the planning authority with such additional information as the planning authority considers necessary for the purposes of making the plan.(2) Any such request is to be in writing.(3) The information that the relevant planning authority may request is limited to information relating to any relevant matter referred to in an environmental planning instrument.(4) In accordance with section 3.44(6) of the Act, the 60-day period referred to in section 3.44(5) of the Act may be extended by the number of days from the day on which the request for the information was made until the day on which the information is provided or on which the owners refuse to supply the information (whichever is the sooner).(5) If the owners refuse to supply the requested information, the development control plan is taken not to have been submitted to the relevant planning authority.cl 25: Subst 2005 (600), Sch 1 [4]. Am 2018 (500), Sch 2 [7].
25AA Assessment and preparation fees
(1) If a draft development control plan under section 3.44 of the Act is prepared (and submitted to the relevant planning authority) by the owners of the land to which it applies, the owners must pay the relevant planning authority an assessment fee as determined by the planning authority.(2) If any such draft development control plan is prepared by the relevant planning authority at the request of the owners (or the percentage of the owners as referred in section 3.44(3) of the Act), those owners must pay the planning authority a preparation fee as determined by the planning authority.(3) Any such assessment or preparation fee must not exceed the reasonable cost, to the relevant planning authority, of assessing or preparing the draft development control plan, carrying out any associated studies and publicly exhibiting the draft plan.(4) If there is more than one owner of the land to which the draft development control plan applies, the fee concerned is to be apportioned between them as the relevant planning authority determines.(5) If the Minister, in accordance with section 3.44(5)(b) of the Act, acts in the place of a council to make the development control plan concerned, the council must, if directed by the Minister to do so, forward to the Minister any assessment or preparation fee that has been paid to the council in relation to that plan.(6) Any assessment or preparation fees payable under clause 272, 273, 273A, 274A or 274B (as in force before their repeal by the Environmental Planning and Assessment Amendment (Planning Instruments and Development Consents) Regulation 2005) are taken to be fees (as determined by the relevant planning authority concerned) payable under this clause. If, under any such repealed clause, a lessee was liable to pay a fee, a reference in this clause to the owner of the land extends to any such lessee.cl 25AA: Ins 2005 (600), Sch 1 [4]. Am 2018 (500), Sch 2 [8].
25AB Councils to provide copies of development control plans to Planning Secretary
A council must, within 28 days of making a development control plan, provide the Planning Secretary with a copy of the plan.cl 25AB: Ins 2005 (600), Sch 1 [4].
25AC Purchase of copies of development control plans
Copies of a development control plan (including any document referred to in a development control plan such as a supporting map, plan, diagram, illustration or other material) are to be made available for purchase from the principal office of the relevant planning authority that prepared the plan.Note—Under section 3.45(4) of the Act, a development control plan must be available for inspection (without charge) at the principal office of the relevant planning authority that prepared the plan.The above clause does not require the relevant planning authority to supply certified copies of any document. Certified copies are supplied under section 10.8 of the Act on payment of a prescribed fee. The fee for a certified copy is prescribed by clause 262.cl 25AC: Ins 2005 (600), Sch 1 [4]. Am 2018 (500), Sch 2 [9] [10].
25AD (Repealed)
cl 25AD: Ins 2005 (600), Sch 1 [4]. Am 2016 (303), Sch 1 [2]. Rep 2018 (500), Sch 2 [11] (transferred to Part 1B of Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
Part 4 Development contributions
pt 4, hdg: Am 2005 (339), Sch 1 [3].
Division 1 Preliminary
pt 4, div 1: Ins 2005 (339), Sch 1 [4].
25A Planning authorities
Pursuant to paragraph (e) of the definition of in section 7.1 of the Act, all public authorities are declared to be planning authorities for the purposes of Division 7.1 of the Act.cl 25A: Ins 2005 (339), Sch 1 [4]. Am 2018 (66), Sch 2 [22].
Division 1A Planning agreements
pt 4, div 1A: Ins 2005 (339), Sch 1 [4].
25B Form and subject-matter of planning agreements
(1) A planning agreement must—(a) be in writing, and(b) be signed by the parties to the agreement.Note—Section 7.4(10) of the Act requires a planning agreement to conform with the Act, environmental planning instruments and development consents applying to the relevant land.(2) The Planning Secretary may from time to time issue practice notes to assist parties in the preparation of planning agreements.Note—Under section 7.9 of the Act the Minister may give planning authorities directions on requirements with respect to planning agreements.cll 25B: Ins 2005 (339), Sch 1 [4]. Am 2018 (66), Sch 2 [22].
25C Making, amendment and revocation of agreements
(1) A planning agreement is not entered into until it is signed by all the parties to the agreement.Note—Section 7.5 of the Act provides that the agreement cannot be entered into until public notice of the proposed agreement has been given.(2) A planning agreement may specify that it does not take effect until—(a) if the agreement relates to a proposed change to an environmental planning instrument—the date the change is made, or(b) if the agreement relates to a development application or proposed development application—the date consent to the application is granted.(3) A planning agreement may be amended or revoked by further agreement in writing signed by the parties to the agreement (including by means of a subsequent planning agreement).cll 25C: Ins 2005 (339), Sch 1 [4]. Am 2018 (66), Sch 2 [22].
25D Public notice of planning agreements
(1) If a planning authority proposes to enter into a planning agreement, or an agreement to amend or revoke a planning agreement, in connection with a development application, the planning authority is to ensure that public notice of the proposed agreement, amendment or revocation is given—(a) if practicable, as part of and contemporaneously with, and in the same manner as, any notice of the development application that is required to be given by a consent authority for a development application by or under the Act, or(b) if it is not practicable for notice to be given contemporaneously, as soon as possible after any notice of the development application that is required to be given by a consent authority for a development application by or under the Act and in the manner determined by the planning authorities that are parties to the agreement.(1A) If a planning authority proposes to enter into a planning agreement, or an agreement to amend or revoke a planning agreement, in connection with a proposed change to a local environmental plan, the planning authority is to ensure that public notice of the proposed agreement, amendment or revocation is given—(a) if practicable, as part of and contemporaneously with, and in the same manner as, any public notice of the relevant planning proposal that is required under Part 3 of the Act, or(b) if it is not practicable for notice to be given contemporaneously, as soon as possible after any public notice of the relevant planning proposal that is required under Part 3 of the Act and in the manner determined by the planning authorities that are parties to the agreement.(2) (Repealed)(2A) In the case of a planning agreement of a kind other than an agreement referred to in subclause (1), (1A) or (2) of which public notice is required to be given under section 7.5 of the Act, the Planning Secretary is to ensure that public notice of the proposed agreement, amendment or revocation is given not less than 28 days before the agreement is entered into or amended or revoked and in the manner determined by the planning authorities that are parties to the agreement.(3) The public notice of a proposed agreement, amendment or revocation must specify the arrangements relating to inspection by the public of copies of the proposed agreement, amendment or revocation.(4) In this clause—project application has the same meaning as it has in Part 1A.Note—Section 7.5 of the Act requires a copy of the proposed agreement, amendment or revocation to be made available for inspection by the public for a period of not less than 28 days.cl 25D: Ins 2005 (339), Sch 1 [4]. Am 2006 (195), Sch 1 [13]; 2007 (342), Sch 1 [12]–[16]; 2009 (268), Sch 1 [3] [4]; 2018 (66), Sch 2 [22]; 2018 (500), Sch 2 [12].
25E Explanatory note
(1) A planning authority proposing to enter into a planning agreement, or an agreement that revokes or amends a planning agreement, must prepare a written statement (referred to in this Division as an explanatory note)—(a) that summarises the objectives, nature and effect of the proposed agreement, amendment or revocation, and(b) that contains an assessment of the merits of the proposed agreement, amendment or revocation, including the impact (positive or negative) on the public or any relevant section of the public.(2) Without limiting subclause (1), an explanatory note must—(a) identify how the agreement, amendment or revocation promotes the public interest and one or more of the objects of the Act, and(b) if the planning authority is a development corporation, identify how the agreement, amendment or revocation promotes one or more of its responsibilities under the Growth Centres (Development Corporations) Act 1974, and(c) if the planning authority is a public authority constituted by or under an Act, identify how the planning agreement, amendment or revocation promotes one or more of the objects (if any) of the Act by or under which it is constituted, and(d) if the planning authority is a council, identify how the agreement, amendment or revocation promotes one or more of the elements of the council’s charter under section 8 of the Local Government Act 1993, and(e) identify a planning purpose or purposes served by the agreement, amendment or revocation, and contain an assessment of whether the agreement, amendment or revocation provides for a reasonable means of achieving that purpose, and(f) identify whether the agreement, amendment or revocation conforms with the planning authority’s capital works program (if any), and(g) state whether the agreement, amendment or revocation specifies that certain requirements of the agreement must be complied with before a construction certificate, occupation certificate or subdivision certificate is issued.(3) The explanatory note is to be prepared jointly with the other parties proposing to enter into the planning agreement.(4) However, if 2 or more planning authorities propose to enter into a planning agreement, an explanatory note may include separate assessments prepared by the planning authorities in relation to matters affecting only one of the planning authorities, or affecting those planning authorities in a different manner.(5) A copy of the explanatory note must be exhibited with the copy of the proposed agreement, amendment or revocation when it is made available for inspection by the public in accordance with the Act.(6) If a council is not a party to a planning agreement that applies to the area of the council, a copy of the explanatory note must be provided to the council when a copy of the agreement is provided to the council under section 7.5(4) of the Act.(7) A planning agreement may provide that the explanatory note is not to be used to assist in construing the agreement.cl 25E: Ins 2005 (339), Sch 1 [4]. Am 2011 (64), Sch 1 [3]; 2018 (66), Sch 2 [22].
25F Councils to facilitate public inspection of relevant planning agreements
(1) A council must keep a planning agreement register.(2) The council must record in the register a short description of any planning agreement (including any amendment) that applies to the area of the council, including the date the agreement was entered into, the names of the parties and the land to which it applies.(3) A council must make the following available for public inspection (free of charge) during the ordinary office hours of the council—(a) the planning agreement register kept by the council,(b) copies of all planning agreements (including amendments) that apply to the area of the council,(c) copies of the explanatory notes relating to those agreements or amendments.(4) In this clause, planning agreement includes a planning agreement to which the council is not a party but which has been provided to the council under the Act.cll 25F–25H: Ins 2005 (339), Sch 1 [4].
25G Planning Secretary to facilitate public inspection of relevant planning agreements
(1) The Planning Secretary must keep a planning agreement register.(2) The Planning Secretary must record in the register a short description of any planning agreement (including any amendment) entered into by the Minister, including the date the agreement was entered into, the names of the parties and the land to which it applies.(3) The Planning Secretary must make the following available for public inspection (free of charge) during the ordinary office hours of the Department—(a) the planning agreement register kept by the Planning Secretary,(b) copies of all planning agreements (including amendments) to which the Minister is a party,(c) copies of the explanatory notes relating to those agreements or amendments.cll 25F–25H: Ins 2005 (339), Sch 1 [4].
25H Other planning authorities to facilitate public inspection of relevant planning agreements
A planning authority (not being a council or the Minister) must make the following available for public inspection (free of charge) during the ordinary office hours of the planning authority—(a) copies of all planning agreements (including amendments) to which it is a party,(b) copies of the explanatory notes relating to those agreements or amendments.cll 25F–25H: Ins 2005 (339), Sch 1 [4].
Division 1B Development consent contributions
pt 4, div 1B: Ins 2005 (339), Sch 1 [4].
25I Indexation of monetary section 7.11 contribution—recoupment of costs
For the purposes of section 7.11(3) of the Act, the cost of providing public amenities or public services is to be indexed quarterly or annually (as specified in the relevant contributions plan) in accordance with movements in the Consumer Price Index (All Groups Index) for Sydney issued by the Australian Statistician.cl 25I: Ins 2005 (339), Sch 1 [4]. Am 2018 (66), Sch 2 [22].
25J Section 7.12 levy—determination of proposed cost of development
(1) The proposed cost of carrying out development is to be determined by the consent authority, for the purpose of a section 7.12 levy, by adding up all the costs and expenses that have been or are to be incurred by the applicant in carrying out the development, including the following—(a) if the development involves the erection of a building, or the carrying out of engineering or construction work—the costs of or incidental to erecting the building, or carrying out the work, including the costs (if any) of and incidental to demolition, excavation and site preparation, decontamination or remediation,(b) if the development involves a change of use of land—the costs of or incidental to doing anything necessary to enable the use of the land to be changed,(c) if the development involves the subdivision of land—the costs of or incidental to preparing, executing and registering the plan of subdivision and any related covenants, easements or other rights.(2) For the purpose of determining the proposed cost of carrying out development, a consent authority may have regard to an estimate of the proposed cost of carrying out the development prepared by a person, or a person of a class, approved by the consent authority to provide such estimates.(3) The following costs and expenses are not to be included in any estimate or determination of the proposed cost of carrying out development—(a) the cost of the land on which the development is to be carried out,(b) the costs of any repairs to any building or works on the land that are to be retained in connection with the development,(c) the costs associated with marketing or financing the development (including interest on any loans),(d) the costs associated with legal work carried out or to be carried out in connection with the development,(e) project management costs associated with the development,(f) the cost of building insurance in respect of the development,(g) the costs of fittings and furnishings, including any refitting or refurbishing, associated with the development (except where the development involves an enlargement, expansion or intensification of a current use of land),(h) the costs of commercial stock inventory,(i) any taxes, levies or charges (other than GST) paid or payable in connection with the development by or under any law,(j) the costs of enabling access by disabled persons in respect of the development,(k) the costs of energy and water efficiency measures associated with the development,(l) the cost of any development that is provided as affordable housing,(m) the costs of any development that is the adaptive reuse of a heritage item.(4) The proposed cost of carrying out development may be adjusted before payment, in accordance with a contributions plan, to reflect quarterly or annual variations to readily accessible index figures adopted by the plan (such as a Consumer Price Index) between the date the proposed cost was determined by the consent authority and the date the levy is required to be paid.(5) To avoid doubt, nothing in this clause affects the determination of the fee payable for a development application.cl 25J: Ins 2005 (339), Sch 1 [4]. Am 2007 (6), Sch 1 [2]; 2018 (66), Sch 2 [22].
25K Section 7.12 levy—maximum percentage
(1) The maximum percentage of the proposed cost of carrying out development that may be imposed by a levy under section 7.12 of the Act is—(a) in the case of development other than development specified in paragraph (b)—(i) if the proposed cost of carrying out the development is up to and including $100,000—nil, or(ii) if the proposed cost of carrying out the development is more than $100,000 and up to and including $200,000—0.5 per cent of that cost, or(iii) if the proposed cost of carrying out the development is more than $200,000—1 per cent of that cost, or(b) in the case of development on land specified in the Table to this paragraph—the percentage specified in Column 2 of the Table opposite the relevant proposed cost of carrying out the development listed in Column 1 of the Table.Table
Division 1C Preparation of contributions plans
pt 4, div 1C (previously Part 4, Div 1): Renumbered 2005 (339), Sch 1 [4].
26 In what form must a contributions plan be prepared?
(cf clause 25 of EP&A Regulation 1994)
(1) A contributions plan must be prepared having regard to any relevant practice notes adopted for the time being by the Planning Secretary, copies of which are available for inspection and purchase from the offices of the Department.(2) One or more contributions plans may be made for all or any part of the council’s area and in relation to one or more public amenities or public services.(2A) Despite subclause (2), a contributions plan may be made for land outside the council’s area for the purposes of a condition referred to in section 7.15 of the Act.(3) The council must not approve a contributions plan that is inconsistent with any direction given to it under section 7.17 of the Act.(4) A draft contributions plan must be publicly exhibited for a period of at least 28 days.cl 26: Am 2007 (342), Sch 1 [17]; 2018 (66), Sch 2 [22].
27 What particulars must a contributions plan contain?
(cf clause 26 of EP&A Regulation 1994)
(1) A contributions plan must include particulars of the following—(a) the purpose of the plan,(b) the land to which the plan applies,(c) the relationship between the expected types of development in the area to which the plan applies and the demand for additional public amenities and services to meet that development,(d) the formulas to be used for determining the section 7.11 contributions required for different categories of public amenities and services,(e) the section 7.11 contribution rates for different types of development, as specified in a schedule to the plan,(f) if the plan authorises the imposition of a section 7.12 condition—(i) the percentage of the section 7.12 levy and, if the percentage differs for different types of development, the percentage of the levy for those different types of development, as specified in a schedule to the plan, and(ii) the manner (if any) in which the proposed cost of carrying out the development, after being determined by the consent authority, is to be adjusted to reflect quarterly or annual variations to readily accessible index figures adopted by the plan (such as a Consumer Price Index) between the date of that determination and the date the levy is required to be paid,(g) the council’s policy concerning the timing of the payment of monetary section 7.11 contributions, section 7.12 levies and the imposition of section 7.11 conditions or section 7.12 conditions that allow deferred or periodic payment,(h) a map showing the specific public amenities and services proposed to be provided by the council, supported by a works schedule that contains an estimate of their cost and staging (whether by reference to dates or thresholds),(i) if the plan authorises monetary section 7.11 contributions or section 7.12 levies paid for different purposes to be pooled and applied progressively for those purposes, the priorities for the expenditure of the contributions or levies, particularised by reference to the works schedule.(1A) Despite subclause (1)(g), a contributions plan made after the commencement of this subclause that makes provision for the imposition of conditions under section 7.11 or 7.12 of the Act in relation to the issue of a complying development certificate must provide that the payment of monetary section 7.11 contributions and section 7.12 levies in accordance with those conditions is to be made before the commencement of any building work or subdivision work authorised by the certificate.Note—Clause 136K imposes a condition on a complying development certificate in relation to the timing of payment of monetary section 7.11 contributions and section 7.12 levies.(2) In determining the section 7.11 contribution rates or section 7.12 levy percentages for different types of development, the council must take into consideration the conditions that may be imposed under section 4.17(6)(b) of the Act or section 97(1)(b) of the Local Government Act 1993.(3) A contributions plan must not contain a provision that authorises monetary section 7.11 contributions or section 7.12 levies paid for different purposes to be pooled and applied progressively for those purposes unless the council is satisfied that the pooling and progressive application of the money paid will not unreasonably prejudice the carrying into effect, within a reasonable time, of the purposes for which the money was originally paid.cl 27: Am 2005 (339), Sch 1 [5]–[7]; 2007 (342), Sch 1 [18]; 2013 (705), Sch 1 [7]; 2018 (66), Sch 2 [22].
Division 2 Public participation
28 Draft contributions plan must be publicly exhibited
(cf clause 27 of EP&A Regulation 1994)
Following the preparation of a draft contributions plan, the council—(a) must give public notice in a local newspaper of the places, dates and times for inspection of the draft plan, and(b) must publicly exhibit at the places, on the dates and during the times set out in the notice—(i) a copy of the draft plan, and(ii) a copy of any supporting documents, and(c) must specify in the notice the period during which submissions about the draft plan may be made to the council (which must include the period during which the plan is being publicly exhibited).
29 Copies of draft contributions plans to be publicly available
(cf clause 28 of EP&A Regulation 1994)
Copies of the draft contributions plan, and of any supporting documents, are to be made available to interested persons, either free of charge or on payment of reasonable copying charges.
30 Who may make submissions about a draft contributions plan?
(cf clause 29 of EP&A Regulation 1994)
Any person may make written submissions to the council about the draft contributions plan during the relevant submission period.
Division 3 Approval of contributions plans
31 Approval of contributions plan by council
(cf clause 30 of EP&A Regulation 1994)
(1) After considering any submissions about the draft contributions plan that have been duly made, the council—(a) may approve the plan in the form in which it was publicly exhibited, or(b) may approve the plan with such alterations as the council thinks fit, or(c) may decide not to proceed with the plan.(2) The council must give public notice of its decision in a local newspaper within 28 days after the decision is made.(3) Notice of a decision not to proceed with a contributions plan must include the council’s reasons for the decision.(4) A contributions plan comes into effect on the date that public notice of its approval is given in a local newspaper, or on a later date specified in the notice.
Division 4 Amendment and repeal of contributions plans
32 How may a contributions plan be amended or repealed?
(cf clause 31 of EP&A Regulation 1994)
(1) A council may amend a contributions plan by a subsequent contributions plan.(2) A council may repeal a contributions plan—(a) by a subsequent contributions plan, or(b) by public notice in a local newspaper of its decision to repeal the plan.(3) A council may make the following kinds of amendments to a contributions plan without the need to prepare a new contributions plan—(a) minor typographical corrections,(b) changes to the rates of section 7.11 monetary contributions set out in the plan to reflect quarterly or annual variations to—(i) readily accessible index figures adopted by the plan (such as a Consumer Price Index), or(ii) index figures prepared by or on behalf of the council from time to time that are specifically adopted by the plan,(c) the omission of details concerning works that have been completed.cl 32: Am 2005 (339), Sch 1 [8]; 2018 (66), Sch 2 [22].
33 Procedure for repealing a contributions plan by public notice
(cf clause 32 of EP&A Regulation 1994)
(1) Before repealing a contributions plan by public notice, the council must give public notice in a local newspaper—(a) of its intention to repeal the contributions plan, and(b) of its reasons for doing so.(2) Publication of the notice of intention must take place at least 14 days before publication of the notice of repeal.(3) The repeal of a contributions plan by public notice in a local newspaper takes effect on the date of publication of the notice.
33A Review of contributions plan
(1) A council is required to keep a contributions plan under review and, if a date by which a plan is to be reviewed is stated in it, is to review the plan by that date.(2) A council is also to consider any submissions about contributions plans received from public authorities or the public.cl 33A: Ins 2005 (339), Sch 1 [9].
Division 5 Accounting
34 Councils must maintain contributions register
(cf clause 33 of EP&A Regulation 1994)
(1) A council that imposes section 7.11 conditions or section 7.12 conditions on development consents must maintain a contributions register.(2) The council must record the following details in the register—(a) particulars sufficient to identify each development consent for which any such condition has been imposed,(b) the nature and extent of the section 7.11 contribution or section 7.12 levy required by any such condition for each public amenity or service,(c) the contributions plan under which any such condition was imposed,(d) the date or dates on which any section 7.11 contribution or section 7.12 levy required by any such condition was received, and its nature and extent.cl 34: Am 2005 (339), Sch 1 [10] [11]; 2018 (66), Sch 2 [22].
35 Accounting for contributions and levies
(cf clause 34 of EP&A Regulation 1994)
(1) A council must maintain accounting records that allow monetary section 7.11 contributions, section 7.12 levies, and any additional amounts earned from their investment, to be distinguished from all other money held by the council.(2) The accounting records for a contributions plan must indicate the following—(a) the various kinds of public amenities or services for which expenditure is authorised by the plan,(b) the monetary section 7.11 contributions or section 7.12 levies received under the plan, by reference to the various kinds of public amenities or services for which they have been received,(ba) in respect of section 7.11 contributions or section 7.12 levies paid for different purposes, the pooling or progressive application of the contributions or levies for those purposes, in accordance with any requirements of the plan or any ministerial direction under Division 7.1 of the Act,(c) the amounts spent in accordance with the plan, by reference to the various kinds of public amenities or services for which they have been spent.(3) A council must disclose the following information for each contributions plan in the notes to its annual financial report—(a) the opening and closing balances of money held by the council for the accounting period covered by the report,(b) the total amounts received by way of monetary section 7.11 contributions or section 7.12 levies during that period, by reference to the various kinds of public amenities or services for which they have been received,(c) the total amounts spent in accordance with the contributions plan during that period, by reference to the various kinds of public amenities or services for which they have been spent,(d) the outstanding obligations of the council to provide public amenities or services, by reference to the various kinds of public amenities or services for which monetary section 7.11 contributions or section 7.12 levies have been received during that or any previous accounting period.cl 35: Am 2005 (339), Sch 1 [12]–[14]; 2018 (66), Sch 2 [22].
36 Councils must prepare annual statements
(cf clause 35 of EP&A Regulation 1994)
(1) As soon as practicable after the end of each financial year, a council must prepare an annual statement for the contributions plans in force in its area.(2) The annual statement must disclose, for each contributions plan, the information required by this Division to appear in the notes to its annual financial report.
Division 6 Public access
37 Councils must keep certain records available for public inspection
(cf clause 36 of EP&A Regulation 1994)
(1) A council must make the following documents available for inspection—(a) each of its current contributions plans,(b) each of its annual statements,(c) its contributions register.(2) The documents must be available at the council’s principal office, free of charge, during the council’s ordinary office hours.(3) Subject to section 428 of the Local Government Act 1993, the annual statement may be included in, or form part of, the annual report prepared by the council under that section.
38 Copies of contributions plans to be publicly available
(cf clause 37 of EP&A Regulation 1994)
A council must make the following documents available for copying, either free of charge or on payment of reasonable copying charges—(a) each of its current contributions plans,(b) each document referred to in any such contributions plan that is held by the council.Note—This clause does not require a council to supply certified copies of any document. Certified copies are supplied under section 10.8 of the Act on payment of a prescribed fee. The fee for a certified copy is prescribed by clause 262.cl 38: Am 2018 (66), Sch 2 [22].
Part 5 Existing uses
39 Definitions
In this Part—relevant date means—(a) in relation to an existing use referred to in section 4.65(a) of the Act—the date on which an environmental planning instrument having the effect of prohibiting the existing use first comes into force, or(b) in relation to an existing use referred to in section 4.65(b) of the Act—the date when the building, work or land being used for the existing use was first erected, carried out or so used.cl 39: Am 2006 (131), Sch 1 [1]; 2018 (66), Sch 2 [22].
40 Object of Part
The object of this Part is to regulate existing uses under section 4.67(1) of the Act.cl 40: Subst 2007 (496), Sch 1 [5]; 2009 (511), Sch 1 [3]. Am 2018 (66), Sch 2 [22].
41 Certain development allowed
(cf clause 39 of EP&A Regulation 1994)
(1) An existing use may, subject to this Division—(a) be enlarged, expanded or intensified, or(b) be altered or extended, or(c) be rebuilt, or(d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or(e) if it is a commercial use—be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or(f) if it is a light industrial use—be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act).(2) However, an existing use must not be changed under subclause (1)(e) or (f) unless that change—(a) involves only alterations or additions that are minor in nature, and(b) does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and(c) does not involve the rebuilding of the premises associated with the existing use, and(d) does not involve a significant intensification of that existing use.(e) (Repealed)(3) In this clause—commercial use means the use of a building, work or land for the purpose of office premises, business premises or retail premises (as those terms are defined in the Standard Instrument).light industrial use means the use of a building, work or land for the purpose of light industry (within the meaning of the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006).cl 41: Am 2006 (131), Sch 1 [2] [3]; 2007 (48), Sch 1 [1] [2]; 2010 (759), Sch 1 [1] [2]; 2014 (285), Sch 1 [1]; 2016 (303), Sch 1 [3].
42 Development consent required for enlargement, expansion and intensification of existing uses
(cf clause 40 of EP&A Regulation 1994)
(1) Development consent is required for any enlargement, expansion or intensification of an existing use.(2) The enlargement, expansion or intensification—(a) must be for the existing use and for no other use, and(b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.cll 42–44: Am 2006 (131), Sch 1 [4].
43 Development consent required for alteration or extension of buildings and works
(cf clause 41 of EP&A Regulation 1994)
(1) Development consent is required for any alteration or extension of a building or work used for an existing use.(2) The alteration or extension—(a) must be for the existing use of the building or work and for no other use, and(b) must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.cll 42–44: Am 2006 (131), Sch 1 [4].
44 Development consent required for rebuilding of buildings and works
(cf clause 42 of EP&A Regulation 1994)
(1) Development consent is required for any rebuilding of a building or work used for an existing use.(2) The rebuilding—(a) must be for the existing use of the building or work and for no other use, and(b) must be carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.cll 42–44: Am 2006 (131), Sch 1 [4].
45 Development consent required for changes of existing uses
(cf clause 43 of EP&A Regulation 1994)
Development consent is required—(a) for any change of an existing use to another use, and(b) in the case of a building, work or land that is used for different existing uses, for any change in the proportions in which the various parts of the building, work or land are used for those purposes.
46 Uses may be changed at the same time as they are altered, extended, enlarged or rebuilt
(cf clause 44 of EP&A Regulation 1994)
Nothing in this Part prevents the granting of a development consent referred to in clause 42, 43 or 44 at the same time as the granting of a development consent referred to in clause 45.
46A (Repealed)
cl 46A: Ins 2007 (496), Sch 1 [6]. Rep 2009 (511), Sch 1 [4].
Part 6 Procedures relating to development applications
Division 1 Development applications generally
47 Application of Part
(cf clause 45 of EP&A Regulation 1994)
This Part applies to all development applications.Note—Because of the definition of development application in section 1.4 of the Act, this Part does not apply to complying development or to applications for complying development certificates.cl 47: Am 2018 (66), Sch 2 [22].
48 Consent authority to provide development application forms to intending applicants
(cf clause 45A of EP&A Regulation 1994)
The consent authority must provide any person intending to make a development application with—(a) the consent authority’s scale of fees for development applications generally, and(b) if the consent authority has determined the fee to accompany that particular application, advice of the amount determined, and(c) if the consent authority requires such an application to be in a particular form, blank copies of that form.
49 Persons who can make development applications
(cf clause 46 of EP&A Regulation 1994)
(1) A development application may be made—(a) by the owner of the land to which the development application relates, or(b) by any other person, with the consent in writing of the owner of that land.(2) Subclause (1)(b) does not require the consent in writing of the owner of the land for a development application made by a public authority or for a development application for public notification development if the applicant instead gives notice of the application—(a) by written notice to the owner of the land before the application is made, or(b) by advertisement published in a newspaper circulating in the area in which the development is to be carried out no later than 14 days after the application is made.(3) Despite subclause (1), a development application made by a lessee of Crown land may only be made with the consent in writing given by or on behalf of the Crown.(3A) Despite subclause (1), a development application made in respect of land owned by a Local Aboriginal Land Council may be made by a person referred to in that subclause only with the consent of the New South Wales Aboriginal Land Council.(4) Subclause (3) does not require the consent of the Crown if the development application is for State significant development made by a public authority or public notification development.(5) In this clause—includes an irrigation corporation within the meaning of the Water Management Act 2000 that the Minister administering that Act has, by order in writing, declared to have the status of a public authority for the purposes of this clause in relation to development of a kind specified in the order.public notification development means—(i) State significant development set out in clause 5 (Mining) or 6 (Petroleum (oil and gas)) of Schedule 1 to State Environmental Planning Policy (State and Regional Development) 2011 but it does not include development to the extent that it is carried out on land that is a state conservation area reserved under the National Parks and Wildlife Act 1974, or(ii) State significant development on land with multiple owners designated by the Planning Secretary for the purposes of this clause by notice in writing to the applicant for the State significant development.cl 49: Am 2000 No 92, Sch 8.9; 2009 No 58, Sch 2.3 [2]; 2011 (510), Sch 2 [12] [13].
50 How must a development application be made?
(cf clause 46A of EP&A Regulation 1994)
(1) A development application—(a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and(b) if the consent authority so requires, must be in the form approved by that authority, and(c) must be accompanied by the fee, not exceeding the fee prescribed by Part 15, determined by the consent authority, and(d) must be delivered by hand, sent by post or transmitted electronically to the principal office of the consent authority, but may not be sent by facsimile transmission.(1A) If a development application that relates to residential apartment development is made on or after the commencement of the Environmental Planning and Assessment Amendment (Residential Apartment Development) Regulation 2015, the application must be accompanied by a statement by a qualified designer.(1AB) The statement by the qualified designer must—(a) verify that he or she designed, or directed the design, of the development, and(b) provide an explanation that verifies how the development—(i) addresses how the design quality principles are achieved, and(ii) demonstrates, in terms of the Apartment Design Guide, how the objectives in Parts 3 and 4 of that guide have been achieved.(1B) If a development application referred to in subclause (1A) is also accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in that subclause need not be verified to the extent to which they aim—(a) to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or(b) to improve the thermal performance of the building.(2) A development application that relates to development for which consent under the Wilderness Act 1987 is required must be accompanied by a copy of that consent.(2A) A development application that relates to development in respect of which a site compatibility certificate is required by a State Environmental Planning Policy must be accompanied by such a certificate.(2B) (Repealed)(3) Immediately after it receives a development application, the consent authority—(a) must register the application with a distinctive number, and(b) must endorse the application with its registered number and the date of its receipt, and(c) must give written notice to the applicant of its receipt of the application, of the registered number of the application and of the date on which the application was received.(4) In the case of a development application under section 4.12(3) of the Act, the application must be accompanied by such matters as would be required under section 81 of the Local Government Act 1993 if approval were sought under that Act.(5) The consent authority must forward a copy of the development application to the relevant council if the council is not the consent authority.(6) If the development application is for designated development, the consent authority must forward to the Planning Secretary (where the Minister or the Planning Secretary is not the consent authority) and to the council (where the council is not the consent authority) a copy of the environmental impact statement, together with a copy of the relevant application.Note—Additional requirements in relation to the making of a development application apply to applications for designated development, for integrated development and applications for development that affect threatened species.(7) In determining whether an alteration, enlargement or extension of a BASIX affected building is BASIX affected development, the consent authority must make its determination by reference to a genuine estimate of the construction costs of the work the subject of the development application, including any part of the work that is BASIX excluded development. The estimate must, unless the consent authority is satisfied that the estimated cost indicated in the development application is neither genuine nor accurate, be the estimate so indicated.cl 50: Am 26.7.2002; 25.7.2003; 2005 (599), Sch 1 [4]; 2006 (600), Sch 1 [3]; 2007 (495), Sch 1 [2]; 2007 (623), Sch 1 [2] [3]; 2009 (355), Sch 1 [2]; 2015 (315), Sch 1 [4]; 2018 (66), Sch 2 [22].
50A Special provisions relating to development applications relating to mining or petroleum development on strategic agricultural land
(1) This clause applies to a development application that relates to mining or petroleum development (within the meaning of Part 4AA of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007) on the following land—(a) land shown on the Strategic Agricultural Land Map,(b) any other land that is the subject of a site verification certificate.(2) A development application to which this clause applies must be accompanied by—(a) in relation to proposed development on land shown on the Strategic Agricultural Land Map as critical industry cluster land—a current gateway certificate in respect of the proposed development, or(b) in relation to proposed development on any other land—(i) a current gateway certificate in respect of the proposed development, or(ii) a site verification certificate that certifies that the land on which the proposed development is to be carried out is not biophysical strategic agricultural land.(3) This clause does not apply to or with respect to a development application if the relevant environmental assessment requirements under Part 2 of Schedule 2 of this Regulation were notified by the Planning Secretary on or before 10 September 2012.(3A) In addition to subclause (3), this clause does not apply to or with respect to a development application if—(a) the land to which the application relates was not shown (whether in whole or in part) on the Strategic Agricultural Land Map before 28 January 2014, and(b) the relevant environmental assessment requirements under Part 2 of Schedule 2 for the development were notified by the Planning Secretary on or before 3 October 2013.(3B) However, the Minister or the Planning Secretary, in dealing with an application referred to in subclause (3) or (3A), may seek the advice of the Gateway Panel.(4) In this clause, biophysical strategic agricultural land, critical industry cluster land and Strategic Agricultural Land Map have the same meanings as they have in State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007.cl 50A: Ins 2013 (578), Sch 2 [2]. Am 2014 (463), Sch 2 [1].
50B Special provisions relating to development requiring concurrence and integrated development
(1) This clause applies to a development application for—(a) development for which the concurrence of a concurrence authority is required, or(b) integrated development.(2) Despite clause 50(1)(c), a development application to which this clause applies is not to be accompanied by any fees (additional fees) payable by the applicant under clause 252A or 253.(3) The applicant must pay any additional fees that are notified, by means of the NSW planning portal, to the applicant.(4) The development application is taken not to have been lodged until any additional fees notified to the applicant have been paid in accordance with the notice.Note—See the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 for transitional arrangements applying until 1 January 2020.cl 50B: Ins 2018 (756), Sch 1 [1].
51 Rejection of development applications
(cf clause 47(1)–(3) of EP&A Regulation 1994)
(1) A consent authority may reject a development application within 14 days after receiving it if—(a) the application is illegible or unclear as to the development consent sought, or(b) the application does not contain any information, or is not accompanied by any document, specified in Part 1 of Schedule 1, or(c) being an application referred to in section 4.12(8) of the Act, the application is not accompanied by an environmental impact statement referred to in that subsection.Note—Schedule 2 sets out requirements in relation to environmental impact statements.(2) A consent authority may reject a development application within 14 days after receiving it if—(a1) being an application for development requiring concurrence, the application fails to include the concurrence fees appropriate for each concurrence relevant to the development, or(a) being an application for integrated development, the application fails—(i) to identify all of the approvals referred to in section 4.46 of the Act that are required to be obtained before the development may be carried out, or(ii) to include the approval fees appropriate for each approval relevant to the development, or(iii) to include the additional information required by this Regulation in relation to the development, or(b) being an application that is required under Part 7 of the Biodiversity Conservation Act 2016 to be accompanied by a biodiversity development assessment report, the application is not accompanied by such a report, or(c) being an application that is required under 221ZW of the Fisheries Management Act 1994 to be accompanied by a species impact statement, the application is not accompanied by such a statement.(3) An application is taken for the purposes of the Act never to have been made if the application is rejected under this clause and the determination to reject the application is not changed following any review.(4) The consent authority must refund to the applicant the whole of any application fee paid in connection with an application that is rejected under this clause and must notify the applicant in writing of the reasons for the rejection of the application.(5) Immediately after the rejection of a development application for—(a) development for which the concurrence of a concurrence authority is required, orthe consent authority must notify each relevant concurrence authority or approval body of the rejection.(b) integrated development,cl 51: Am 2.8.2002; 2003 No 95, Sch 2.1 [1]; 2011 (70), Sch 1 [1]–[3]; 2011 (510), Sch 2 [14]; 2017 (440), Sch 1 [4]; 2018 (66), Sch 2 [22]; 2018 (500), Sch 2 [13].
52 Withdrawal of development applications
(cf clause 47(4)–(6) of EP&A Regulation 1994)
(1) A development application may be withdrawn at any time prior to its determination by service on the consent authority of a notice to that effect signed by the applicant.(2) An application that is withdrawn is taken for the purposes of the Act (Schedule 1 to the Act and clause 90(3) of this Regulation excepted) never to have been made.(3) The consent authority may (but is not required to) refund to the applicant the whole or any part of any application fee paid in connection with an application that has been withdrawn.(4) Immediately after the withdrawal of a development application for—(a) development for which the concurrence of a concurrence authority is required, orthe consent authority must notify each relevant concurrence authority or approval body of the withdrawal.(b) integrated development,cl 52: Am 2011 (510), Sch 2 [15]; 2018 (66), Sch 2 [22]; 2018 No 25, Sch 5.13.
53 Consent authority may require additional copies of development application and supporting documents
(cf clause 47A of EP&A Regulation 1994)
A consent authority that is required—(a) to refer a development application to another person, ormay require the applicant to give it as many additional copies of the development application and supporting documents as are reasonably required for that purpose.(b) to arrange for the public display of a development application,
54 Consent authority may request additional information
(cf clause 48 of EP&A Regulation 1994)
(1) A consent authority may request the applicant for development consent to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the application.(2) The request—(a) must be writing, and(b) may specify a reasonable period within which the information must be provided to the consent authority.(3) The information that a consent authority may request includes, but is not limited to, information relating to any relevant matter referred to in section 4.15(1)(b)–(e) of the Act or in any relevant environmental planning instrument.(4) However, the information that a consent authority may request does not include, in relation to building or subdivision work, the information that is required to be attached to an application for a construction certificate.Note—The aim of this provision is to ensure that the consent authority does not oblige the applicant to provide these construction details up-front where the applicant may prefer to test the waters first and delay applying for a construction certificate until, or if, development consent is granted.(5) Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the consent authority in writing that the information will not be provided.(6) If the applicant for development consent has failed to provide any of the requested information by the end of—(a) any period specified as referred to in subclause (2)(b), orthe applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly.(b) such further period as the consent authority may allow,cll 54: Am 2018 (66), Sch 2 [22].
55 What is the procedure for amending a development application?
(cf clause 48A of EP&A Regulation 1994)
(1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined.(2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development.(3) If the development application is for—(a) development for which concurrence is required, as referred to in section 4.13 of the Act, orthe consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.(b) integrated development,cll 55: Am 2018 (66), Sch 2 [22].
55A Amendments with respect to BASIX commitments
(1) This clause applies to a development application that has been accompanied by a BASIX certificate pursuant to clause 2A of Schedule 1 or to a development application in relation to BASIX optional development that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A of Schedule 1 for it to be so accompanied).(2) Without limiting clause 55, a development application may be amended or varied by the lodging of—(a) a new BASIX certificate to replace a BASIX certificate that accompanied the application, or to replace any subsequent BASIX certificate lodged under this clause, and(b) if any new accompanying document is required or any existing accompanying document requires amendment, a new or amended accompanying document.(3) If an amendment or variation of a development application, or of any accompanying document, results in the proposed development differing in any material respect from the description contained in a current BASIX certificate for the development, the application to amend or vary the development application must have annexed to it a replacement BASIX certificate whose description takes account of the amendment or variation.(4) In this clause, a reference to the accompanying document is a reference to any document required to accompany a development application pursuant to clause 2 of Schedule 1.cl 55A: Ins 25.6.2004. Am 2006 (600), Sch 1 [4].
56 Extracts of development applications to be publicly available
(cf clause 48B of EP&A Regulation 1994)
(1) This clause applies to all development other than State significant development, designated development or advertised development.(2) Extracts of a development application relating to the erection of a building—(a) sufficient to identify the applicant and the land to which the application relates, andare to be made available to interested persons, either free of charge or on payment of reasonable copying charges.(b) containing a plan of the building that indicates its height and external configuration, as erected, in relation to the site on which it is to be erected, if relevant for that particular development,Note—The erection of a building is defined in the Act to include the rebuilding of, the making of structural alterations to, or the enlargement or extension of a building or the placing or relocating of a building on land.cl 56: Am 2011 (510), Sch 2 [16].
Division 1A Communications under Divisions 2 and 3 through NSW planning portal
pt 6, div 1A: Ins 2018 (756), Sch 1 [2].
57 Definitions
(1) In this Division—document or information includes any application, notification, advice or request.means a consent authority, a concurrence authority, an approval body or the Planning Secretary.(2) A reference in this Division to forwarding or giving any document or information to a relevant authority includes a reference to making any request or application to the relevant authority.cl 57: Rep 2013 (79), Sch 1 [1]. Ins 2018 (756), Sch 1 [2].
57A Communications under Division 2 or 3 by means of NSW planning portal
(1) A relevant authority that is required or permitted by Division 2 or 3 to forward or give any document or information to another relevant authority may do so by means of the NSW planning portal.(2) Any requirement in Division 2 or 3 for any such document or information to be given by a relevant authority in writing is taken to have been met if it is done by means of the NSW planning portal.cll 57A: Ins 2018 (756), Sch 1 [2].
57B Time of dispatch and receipt
For the purposes of Division 2 or 3—(a) the time at which any document or information is forwarded or given by a relevant authority by means of the NSW planning portal is the time when the document or information is shown on the NSW planning portal to have been sent by the authority, and(b) the time at which a document or information is received by a relevant authority is the time when the document or information becomes capable of being retrieved by the authority by means of the NSW planning portal.cll 57B: Ins 2018 (756), Sch 1 [2].
Division 2 Development applications for development requiring concurrence
58 Application of Division
(cf clause 49 of EP&A Regulation 1994)
(1) This Division applies to all development applications that relate to development for which the concurrence of a concurrence authority is required.(1A) This Division extends to a development application under Part 4 or environmental assessment that relates to development or an activity for which concurrence is required under section 7.12 of the Biodiversity Conservation Act 2016 or under section 221ZZ of the Fisheries Management Act 1994. This Division applies with such modifications as are necessary for that purpose.(2) This Division does not apply in circumstances in which a concurrence authority’s concurrence may be assumed in accordance with clause 64.(3) This Division ceases to apply to a development application if the development application is rejected or withdrawn under clause 51 or 52.cl 58: Am 2017 (440), Sch 1 [5].
59 Seeking concurrence
(cf clause 49A of EP&A Regulation 1994)
(1) After it receives a development application for development requiring concurrence, the consent authority—(a) must forward a copy of the application (together with all accompanying documentation) to the concurrence authority whose concurrence is required, and(b) must notify the concurrence authority in writing of the basis on which its concurrence is required and of the date of receipt of the development application, and(c) if known at that time, must notify the concurrence authority in writing of the dates of the relevant submission period or periods if the application is to be publicly notified under Schedule 1 to the Act.(2) The development application must be forwarded to the relevant concurrence authority within 14 days after the application is lodged, except as otherwise provided by this clause.(3) If the concurrence of the Environment Agency Head may be required under Part 7 of the Biodiversity Conservation Act 2016 because the development application indicates on its face that a discount is being sought in the biodiversity credits required under the report to be retired—(a) the development application must be forwarded to the Environment Agency Head within 10 days (instead of 14 days) after the application is lodged, and(b) the consent authority must notify the Environment Agency Head within 30 days after the application is lodged whether it proposes to reduce the number of biodiversity credits required to be retired and, if it proposes to do so, the amount of (and reasons for) the reduction, as referred to in section 7.13(4) of the Biodiversity Conservation Act 2016.If concurrence is required because the consent authority proposes to reduce the number of biodiversity credits, the reference in clause 62(1)(a) to notice to the consent authority of the decision of the Environment Agency Head being given within 40 days after the receipt of the application by the Environment Agency Head is to be construed as a reference to notice being given within 50 days after the application is lodged.(4) If the Planning Secretary has made an election under State Environmental Planning Policy (Concurrences) 2018 in relation to development, the consent authority must forward the development application concerned to the Planning Secretary as soon as possible after receiving notice of the election.cl 59: Am 2011 (70), Sch 1 [4]; 2017 (440), Sch 1 [6]; 2018 (500), Sch 2 [14]; 2018 No 68, Sch 2.12 [1]; 2018 (756), Sch 1 [3]–[5].
60 Concurrence authority may require additional information
(cf clause 50 of EP&A Regulation 1994)
(1) A concurrence authority whose concurrence has been sought may request the consent authority to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the question as to whether concurrence should be granted or refused.(2) The request—(a) must be in writing, and(b) may specify a reasonable period within which the information must be provided to the consent authority.(3) Immediately after receiving a request for additional information from a concurrence authority, a consent authority must request the applicant, in writing, to provide the information sought within the period specified by the concurrence authority.(4) Immediately after receiving the requested information from the applicant, the consent authority must forward that information to the concurrence authority.(5) Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the consent authority in writing that the information will not be provided.(6) If the applicant for development consent has failed to provide any of the requested information by the end of—(a) any period specified as referred to in subclause (2)(b), orthe applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly.(b) such further period as the concurrence authority may allow,
61 Forwarding of submissions to concurrence authorities
(cf clause 50A of EP&A Regulation 1994)
(1) This clause applies to development that is required to be advertised or notified under Schedule 1 to the Act.(2) Immediately after the expiration of the relevant submission period, the consent authority must forward to each concurrence authority a copy of all submissions received in response to the advertisement or notification.cl 61: Am 2018 (500), Sch 2 [14]; 2018 No 68, Sch 2.12 [1].
62 Notification of decision
(cf clause 51 of EP&A Regulation 1994)
(1) A concurrence authority that has received a development application from a consent authority must give written notice to the consent authority of its decision on the development application—(a) within 40 days (or a lesser period, if any, provided for in an environmental planning instrument) after receipt of the copy of the application, or(b) in the case of development that is required to be advertised or notified under Schedule 1 to the Act, within 21 days after it receives—(i) the last of the submissions made during the relevant submission period, or(ii) advice from the consent authority that no submissions were made.Note—This period may be extended by operation of Division 11.(2) If the consent authority determines a development application by refusing to grant consent before the expiration of the relevant period under subclause (1)—(a) the consent authority must notify the concurrence authority as soon as possible after the determination, and(b) this clause ceases to apply to the development application.(3) Nothing in this clause prevents a consent authority from having regard to a concurrence authority’s decision on a development application that has been notified to the consent authority after the expiration of the relevant period under subclause (1).cl 62: Am 2018 (500), Sch 2 [14]; 2018 No 68, Sch 2.12 [1]; 2018 (756), Sch 1 [6].
63 Reasons for granting or refusal of concurrence
(cf clause 51A of EP&A Regulation 1994)
(1) If the concurrence authority—(a) grants concurrence subject to conditions, orthe concurrence authority must give written notice to the consent authority of the reasons for the imposition of the conditions or the refusal.(b) refuses concurrence,(2) (Repealed)cl 63: Am 2017 (440), Sch 1 [7].
64 Circumstances in which concurrence may be assumed
(cf clause 51B of EP&A Regulation 1994)
(1) A concurrence authority may, by written notice given to the consent authority—(a) inform the consent authority that concurrence may be assumed, subject to such qualifications or conditions as are specified in the notice, and(b) amend or revoke an earlier notice under this clause.(2) A consent granted by a consent authority that has assumed concurrence in accordance with a notice under this clause is as valid and effective as if concurrence had been given.
Division 3 Development applications for integrated development
65 Application of Division
(cf clause 52 of EP&A Regulation 1994)
(1) This Division applies to all development applications for integrated development.(2) This Division ceases to apply to a development application if the development application is rejected or withdrawn under clause 51 or 52.
66 Seeking general terms of approval
(cf clause 52A of EP&A Regulation 1994)
(1) After it receives a development application for integrated development, the consent authority—(a) must forward a copy of the application (together with all accompanying documentation) to the approval body whose approval is required, and(b) must notify the approval body in writing of the basis on which its approval is required and of the date of receipt of the development application, and(c) if known at that time, must notify the approval body in writing of the dates of the relevant submission period if the application is to be publicly notified under Schedule 1 to the Act.(2) The application must be forwarded to the relevant approval body within 14 days after the application is lodged.cl 66: Am 2011 (70), Sch 1 [5]; 2018 (500), Sch 2 [14]; 2018 No 68, Sch 2.12 [1]; 2018 (756), Sch 1 [7].
67 Approval body may require additional information
(cf clause 53 of EP&A Regulation 1994)
(1) An approval body the general terms of whose approval have been sought may request the consent authority to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the general terms of approval.(2) The request—(a) must be in writing, and(b) may specify a reasonable period within which the information must be provided to the consent authority.(3) Immediately after receiving a request for additional information from an approval body, a consent authority must request the applicant, in writing, to provide the information sought within the period specified by the approval body.(4) Immediately after receiving the requested information from the applicant, the consent authority must forward that information to the approval body.(5) Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the consent authority in writing that the information will not be provided.(6) If the applicant for development consent has failed to provide any of the requested information by the end of—(a) any period specified as referred to in subclause (2)(b), orthe applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly.(b) such further period as the approval body may allow,
68 Consent authority to be notified of proposed consultations under National Parks and Wildlife Act 1974
(cf clause 53AA of EP&A Regulation 1994)
(1) If—(a) development is integrated development because, or partly because, it requires consent under section 90 of the National Parks and Wildlife Act 1974, andthe Planning Secretary must cause notice of that fact to be given to the consent authority.(b) the Chief Executive of the Office of Environment and Heritage is of the opinion that consultation with an Aboriginal person or persons, an Aboriginal Land Council or another Aboriginal organisation concerning a relic or Aboriginal place is required before the Chief Executive can make a decision concerning the general terms of approval in relation to such a consent (including whether or not the Chief Executive will grant consent),cl 68: Am 2015 No 15, Sch 3.26 [3] [4].
69 Forwarding of submissions to approval bodies
(cf clause 53A of EP&A Regulation 1994)
(1) This clause applies to development that is required to be advertised or notified under Schedule 1 to the Act.(2) Immediately after the expiration of the relevant submission period, the consent authority must forward to each approval body a copy of all submissions received in response to the advertisement or notification.cll 69: Am 2018 (500), Sch 2 [14]; 2018 No 68, Sch 2.12 [1].
70 Notification of general terms of approval
(cf clause 53B of EP&A Regulation 1994)
(1) An approval body that has received a development application from a consent authority must give written notice to the consent authority of its decision concerning the general terms of approval in relation to the development application (including whether or not it will grant an approval)—(a) within 40 days after receipt of the copy of the application, or(b) in the case of development that is required to be advertised or notified under Schedule 1 to the Act, within 21 days after it receives—(i) the last of the submissions made during the relevant submission period, or(ii) advice from the consent authority that no submissions were made.Note—This period may be extended by operation of Division 11.(2) If the consent authority determines a development application by refusing to grant consent before the expiration of the relevant period under subclause (1)—(a) the consent authority must notify the approval body as soon as possible after the determination, and(b) this clause ceases to apply to the development application.(3) Nothing in this clause prevents a consent authority from having regard to an approval body’s general terms of approval that have been notified to the consent authority after the expiration of the relevant period under subclause (1).cll 70: Am 2018 (500), Sch 2 [14]; 2018 No 68, Sch 2.12 [1].
70AA Planning Secretary may act on behalf of approval body
(1) The Planning Secretary is authorised to act on behalf of an approval body as referred to in section 4.47(4A) of the Act where—(a) the approval body has failed to inform the consent authority under section 4.47 of the Act, within the GTA assessment period, whether or not the approval body will grant the approval or of the general terms of its approval, or(b) there is an inconsistency that has been identified by the consent authority in the general terms of approval of 2 or more approval bodies (being an inconsistency in which it would not be possible for a general term of approval of an approval body to be complied with without breaching a general term of approval of another approval body).(2) The GTA assessment period is the period of 21 or 40 days, as the case may be, prescribed by clause 70(1) as the period within which the approval body must notify its decision to the consent authority.Note—This period may be extended by operation of Division 11.(3) As soon as practicable after deciding to act on behalf of an approval body as referred to in section 4.47(4A) of the Act, the Planning Secretary must give written notice to the consent authority and approval body or bodies of that decision.(4) For the purposes of section 4.47(4A)(b) of the Act, the assessment requirements set out in the Secretary’s Assessment Requirements, are prescribed as State assessment requirements.(5) In this clause, Secretary’s Assessment Requirements means Secretary’s Assessment Requirements for Development Requiring General Terms of Approval, as in force on the commencement of this clause and published on the NSW planning portal.cll 70AA–70AC: Ins 2018 (756), Sch 1 [8].
70AB Additional information sought by Planning Secretary acting on behalf of approval body
(1) If the Planning Secretary decides to act on behalf of an approval body as referred to in section 4.47(4A) of the Act, the Planning Secretary may request the applicant for development consent to provide the Planning Secretary with such additional information about the proposed development as the Planning Secretary considers necessary to the Planning Secretary’s proper consideration of the general terms of approval.(2) The request—(a) must be in writing, and(b) may specify a reasonable period within which the information must be provided to the Planning Secretary.(3) Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the Planning Secretary in writing that the information will not be provided.(4) If the applicant notifies the Planning Secretary that the information will not be provided, or fails to provide it by the end of any period specified as referred to in subclause (2)(b) or such further period as the Planning Secretary may allow, the Planning Secretary may deal with the request for general terms of approval without that information.cll 70AA–70AC: Ins 2018 (756), Sch 1 [8].
70AC Notification of general terms of approval by Planning Secretary
(1) Within 21 days after giving written notice under clause 70AA(3), the Planning Secretary must give written notice to the consent authority and each approval body concerned of the Planning Secretary’s decision concerning the general terms of approval (including whether or not approval will be given).(2) If the consent authority determines the development application concerned by refusing to grant consent before the expiration of the relevant period under subclause (1)—(a) the consent authority must notify the Planning Secretary, in writing, as soon as possible after the determination, and(b) subclause (1) ceases to apply in relation to the development application.(3) Nothing in this clause prevents a consent authority from having regard to any general terms of approval notified to the consent authority by the Planning Secretary after the expiration of the relevant period under subclause (1).cll 70AA–70AC: Ins 2018 (756), Sch 1 [8].
Division 3A Special provisions relating to concept development applications
pt 6, div 3A, hdg: Ins 2005 (600), Sch 1 [5]. Am 2017 No 38, Sch 2.2 [1].
pt 6, div 3A: Ins 2005 (600), Sch 1 [5].
70A Information to be included in concept development applications
Despite clause 50(1)(a), the information required to be provided in a concept development application in respect of the various stages of the development may, with the approval of the consent authority, be deferred to a subsequent development application.cl 70A: Ins 2005 (600), Sch 1 [5]. Am 2017 No 38, Sch 2.2 [2].
70B Concept development applications—residential apartment development
Clause 50(1A) applies in relation to a concept development application only if the application sets out detailed proposals for the development or part of the development.cl 70B: Ins 2005 (600), Sch 1 [5]. Am 2015 (315), Sch 1 [5]; 2017 No 38, Sch 2.2 [2].
Division 4
71–76 (Repealed)
pt 6, div 4 (cll 71–76): Rep 2011 (510), Sch 2 [17].
Division 5 Public participation—designated development
77 Notice of development application for designated development to be given to public authorities (other than concurrence authorities and approval bodies)
(cf clause 57 of EP&A Regulation 1994)
For the purposes of section 4.64(1)(g) of the Act, at the same time as giving public notice, the consent authority must give written notice of a development application for designated development to such public authorities (other than relevant concurrence authorities or approval bodies) as, in the opinion of the consent authority, may have an interest in the determination of that development application.cl 77: Am 2018 (500), Sch 2 [15].
78 Information to be contained in notice for designated development
(cf clause 58 of EP&A Regulation 1994)
(1) For the purposes of section 4.64(1)(g) of the Act, a written notice of a development application must contain the following information—(a) a description (including the address) of the land on which the development is proposed to be carried out,(b) the name of the applicant and of the consent authority,(c) a description of the proposed development,(d) a statement that the proposed development is designated development,(e) a statement that the development application and the documents accompanying the application, including the environmental impact statement, may be inspected—(i) at the consent authority’s principal office, and(ii) at the Department’s offices (if the Minister or Planning Secretary is not the consent authority), andfor a period specified in the notice during the relevant authority’s ordinary office hours,(iii) at the council’s principal office (if the council is not the consent authority),(f) a statement that—(i) any person during the period specified under paragraph (e) may make written submissions to the consent authority concerning the development application, and(ii) if a submission is made by way of objection, the grounds of objection must be specified in the submission,(g) the dates of the period specified under paragraph (e),(h) if the proposed development is also integrated development—(i) a statement that the development is integrated development, and(ii) a statement of the approvals that are required and the relevant approval bodies for those approvals,(i) a statement that, unless the proposed development is development about which the Independent Planning Commission has conducted a public hearing, any person—(i) who makes a submission by way of objection, andmay appeal to the Land and Environment Court,(ii) who is dissatisfied with the determination of the consent authority to grant development consent,(j) a statement that, if the Independent Planning Commission conducts a public hearing, the Commission’s determination of the application is final and not subject to appeal.(2) The period referred to under subclause (1)(e) must include the period of 30 days commencing on the day after which notice of the development application is first published in a newspaper under clause 80.cl 78: Am 2008 (467), Sch 1 [4] [5]; 2018 (500), Sch 2 [16]–[20].
79 Exhibition of notice on land for designated development
(cf clause 59 of EP&A Regulation 1994)
(1) For the purposes of section 4.64(1)(g) of the Act, the notice for a development application for designated development—(a) must be exhibited on the land to which the development application relates, and(b) must be displayed on a signpost or board, and(c) must be clear and legible, and(d) must be headed in capital letters and bold type “DEVELOPMENT PROPOSAL”, and(e) must contain under that heading the following matters—(i) a statement that the development application has been lodged,(ii) the name of the applicant,(iii) a brief description of the development application,(iv) notice that the development application and the relevant environmental impact statement may be inspected at the places, on the dates and during the times specified in the notice, being the same places, dates and times specified in the written notice under clause 78, and(f) must, if practicable, be capable of being read from a public place.cl 79: Am 2018 (500), Sch 2 [21] [22].
80 Publication of notice for designated development
(cf clause 60 of EP&A Regulation 1994)
For the purposes of section 4.64(1)(g) of the Act, the notice for a development application for designated development—(a) must be published on at least 2 separate occasions, and(b) must appear across 2 or 3 columns in the display section of the newspaper, and(c) must be headed in capital letters and bold type “DEVELOPMENT PROPOSAL”, and(d) must contain the same information that is required under clause 78.cl 80: Am 2018 (500), Sch 2 [23] [24].
81 Forwarding of submissions to Planning Secretary
(cf clause 62 of EP&A Regulation 1994)
For the purposes of section 4.16(9)(b) of the Act, the consent authority must, immediately after the relevant submission period, forward to the Planning Secretary (if the Minister or the Planning Secretary is not the consent authority) a copy of all submissions (including submissions by way of objection) received in response to the public exhibition of a development application for designated development.Note—This requirement will not apply if the Planning Secretary has waived the requirement under section 4.16(10)(b) of the Act.cl 81: Am 2018 (66), Sch 2 [22].
Division 6 Public participation—State significant development
pt 6, div 6: Subst 2011 (510), Sch 2 [18].
82 Application of Division
This Division applies to State significant development.cl 82: Subst 2011 (510), Sch 2 [18].
83 (Repealed)
cl 83: Am 2008 (467), Sch 1 [6]. Subst 2011 (510), Sch 2 [18]. Rep 2018 (500), Sch 2 [25].
84 Public notice of application
(1) For the purposes of section 4.64(1)(g) of the Act, the notice of the application must be published in a local newspaper and on the website of the Department.(2) For the purposes of section 4.64(1)(g) of the Act, the notice of the application must be given—(a) to such persons that appear to the Planning Secretary to own or occupy the land adjoining the land to which the application relates (unless the notice is in respect of an application for public notification development within the meaning of clause 49), and(b) to such public authorities that, in the opinion of the Planning Secretary, may have an interest in the determination of the application.(3) For the purposes of this clause—(a) if land is a lot within the meaning of the Strata Schemes (Freehold Development) Act 1973, a notice to the owners corporation is taken to be notice to the owner or occupier of each lot within the strata scheme, and(b) if land is a lot within the meaning of the Strata Schemes (Leasehold Development) Act 1986, a notice to the lessor under the leasehold strata scheme concerned and to the owners corporation is taken to be notice to the owner or occupier of each lot within the strata scheme, and(c) if land is owned or occupied by more than one person, a notice to one owner or one occupier is taken to be notice to all the owners and occupiers of that land.cl 84: Subst 2011 (510), Sch 2 [18]. Am 2018 (500), Sch 2 [26].
85 Content of notice
For the purposes of section 4.64(1)(g) of the Act, a notice of an application for State significant development must contain the following information—(a) a description (including the address) of the land on which the development is proposed to be carried out,(b) the name of the applicant and of the consent authority,(c) a description of the proposed development,(d) the dates of the submission period,(e) a statement that the development application and the documents accompanying the application may be inspected during the submission period—(i) at the Department’s principal office, andduring the relevant authority’s ordinary office hours,(ii) at the council’s principal office,(f) a statement that—(i) any person during the submission period may make written submissions to the Minister concerning the development application, and(ii) if a submission is made by way of objection, the grounds of objection must be specified in the submission,(g) whether the Minister has directed that a public hearing should be held.cl 85: Subst 2011 (510), Sch 2 [18]. Am 2018 (500), Sch 2 [27].
85A Responding to submissions
(1) The Planning Secretary is to provide to an applicant for State significant development the submissions, or a summary of the submissions, received in relation to the application during the submission period.(2) The Planning Secretary may, by notice in writing, require the applicant to provide a written response to such issues raised in those submissions as the Planning Secretary considers necessary.cl 85A: Ins 2011 (510), Sch 2 [18].
85B Documents to be made publicly available
For the purposes of section 4.39(d) of the Act, the Planning Secretary is to make the following documents (that relate to a development application for State significant development) available on the Department’s website and in such other locations as the Planning Secretary determines—(a) the environmental assessment requirements,(b) the development application, including any accompanying documents or information and any amendments made to the development application,(c) any submissions received during the submission period and any response provided under clause 85A,(d) any environmental assessment report prepared by the Planning Secretary,(e) any development consent or modification to a development consent,(f) any application made for a modification to development consent, including any accompanying documents or information,(g) any documents or information provided to the Planning Secretary by the applicant in response to submissions.cl 85B: Ins 2011 (510), Sch 2 [18]. Am 2018 (66), Sch 2 [22].
Division 7 Public participation—other advertised development
86 Application of Division
(cf clause 65 of EP&A Regulation 1994)
(1) This Division applies to other advertised development.(2) This Division does not apply to development on land to which clause 36 of Newcastle Local Environmental Plan 2003 applies.cl 86: Am 2011 (510), Sch 2 [19].
87 How must a development application be publicly notified?
(cf clause 65 of EP&A Regulation 1994)
As soon as practicable after a development application for other advertised development is lodged with the consent authority, the consent authority must—(a) give written notice of the application (referred to in this Division as a written notice), and(b) cause notice of the application to be published in a local newspaper (referred to in this Division as a published notice).
88 Who must written notice be given to?
(cf clause 65 of EP&A Regulation 1994)
(1) Written notice of the development application must be given—(a) to such persons as appear to the consent authority to own or occupy the land adjoining the land to which the application relates, and(b) to such public authorities (other than relevant concurrence authorities or approval bodies) as, in the opinion of the consent authority, may have an interest in the determination of the application.(2) For the purposes of this clause—(a) if land is 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 to the owner or occupier of each lot within the strata scheme, and(b) if land is 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 to the owner or occupier of each lot within the strata scheme, and(c) if land is owned or occupied by more than one person, a written notice to one owner or one occupier is taken to be a written notice to all the owners and occupiers of that land.
89 What information must be contained in a written notice and a published notice?
(cf clause 65 of EP&A Regulation 1994)
(1) A written notice and a published notice of the development application must contain the following information—(a) a description of the land (including the address) on which the development is proposed to be carried out,(b) the name of the applicant and the name of the consent authority,(c) a description of the proposed development,(d) a statement that the application and the documents accompanying that application may be inspected at the consent authority’s principal office for a period specified in the notice during the consent authority’s ordinary office hours,(e) a statement that any person during the period specified under paragraph (d) may make a written submission in relation to the development application to the consent authority,(f) the dates of the period specified under paragraph (d).(2) The written notice and the published notice—(a) in the case of development that is integrated development—(i) must contain a statement that the development is integrated development, and(ii) must state the approvals that are required and the relevant approval bodies for those approvals, and(b) in the case of development that is threatened species development, must contain a statement that the development is threatened species development.(3) The period referred to in subclause (1)(d) must include—(a) in the case of nominated integrated development or threatened species development, the period of 28 days, andcommencing on the day after the day on which the published notice is first published in a newspaper.(b) in any other case, the period of 14 days,(4) In this clause—nominated integrated development means integrated development (not being threatened species development or Class 1 aquaculture development) that requires an approval (within the meaning of section 4.45 of the Act) under—(a) a provision of the Heritage Act 1977 specified in section 4.46(1) of the Act, or(b) a provision of the Water Management Act 2000 specified in section 4.46(1) of the Act, or(c) a provision of the Protection of the Environment Operations Act 1997 specified in section 4.46(1) of the Act.threatened species development means development to which section 7.7(2) of the Biodiversity Conservation Act 2016 or section 221ZW of the Fisheries Management Act 1994 applies.cl 89: Am 2018 (500), Sch 2 [28] [29].
90 Circumstances in which notice requirements may be dispensed with
(cf clause 65 of EP&A Regulation 1994)
(1) This clause applies to a development application that before being determined by the consent authority, has been amended or substituted, or that has been withdrawn and later replaced, where—(a) the consent authority has complied with this Division in relation to the original application, andreferred to in this clause as a replacement application.(b) the consent authority is of the opinion that the amended, substituted or later application differs only in minor respects from the original application,(2) The consent authority may decide to dispense with further compliance with this Division in relation to a replacement application and, in that event, compliance with this Division in relation to the original application is taken to be compliance in relation to the replacement application.(3) The consent authority must give written notice to the applicant of its decision under this clause at or before the time notice of the determination of the replacement application is given under section 4.18 of the Act.cl 90: Am 2018 (66), Sch 2 [22].
91 Public notification of development application and accompanying information
(cf clause 65 of EP&A Regulation 1994)
(1) The consent authority must ensure that a development application is publicly notified in accordance with the relevant requirements and that any accompanying information is available for inspection during the relevant submission period at the place or places specified in the public notice.(2) During the relevant submission period—(a) any person may inspect the development application and any accompanying information and make extracts from or copies of them, and(b) any person may make written submissions to the consent authority with respect to the development application.(3) A submission by way of objection must set out the grounds of the objection.
Division 8 Determination of development applications
92 Additional matters that consent authority must consider
(cf clause 66 of EP&A Regulation 1994)
(1) For the purposes of section 4.15(1)(a)(iv) of the Act, the following matters are prescribed as matters to be taken into consideration by a consent authority in determining a development application—(a) (Repealed)(b) in the case of a development application for the demolition of a building, the provisions of AS 2601,(c) in the case of a development application for the carrying out of development on land that is subject to a subdivision order made under Schedule 7 to the Act, the provisions of that order and of any development plan prepared for the land by a relevant authority under that Schedule,(d) in the case of the following development, the Dark Sky Planning Guideline—(i) any development on land within the local government area of Coonamble, City of Dubbo, Gilgandra or Warrumbungle Shire,(ii) development of a class or description included in Schedule 4A to the Act, State significant development or designated development on land less than 200 kilometres from the Siding Spring Observatory,(e) in the case of a development application for development for the purposes of a manor house or multi dwelling housing (terraces), the Medium Density Design Guide for Development Applications published by the Department of Planning and Environment on 6 July 2018, but only if the consent authority is satisfied that there is not a development control plan that adequately addresses such development.Note—A copy of the Guide is available on the website of the Department.(f) in the case of a development application for development for the erection of a building for residential purposes on land in Penrith City Centre, the Development Assessment Guideline: An Adaptive Response to Flood Risk Management for Residential Development in the Penrith City Centre published by the Department of Planning and Environment on 28 June 2019.Note—A copy of the Guideline is available on the website of the Department.(2) In this clause—AS 2601 means the document entitled Australian Standard AS 2601—1991: The Demolition of Structures, published by Standards Australia, and as in force at 1 July 1993.Penrith City Centre means the City Centre as defined in Penrith Local Environmental Plan 2010.cl 92: Am 2013 (91), Sch 1 [1]; 2016 (303), Sch 1 [4]–[7]; 2018 (66), Sch 2 [22]; 2018 (130), Sch 1 [1B]; 2018 (500), Sch 2 [30]–[32]; 2019 (281), cl 3 (1) (2).
92A (Repealed)
cl 92A: Ins 10.11.2000. Am 2005 No 43, Sch 7.3 [2]. Rep 2005 (600), Sch 1 [6].
93 Fire safety and other considerations
(cf clause 66A of EP&A Regulation 1994)
(1) This clause applies to a development application for a change of building use for an existing building where the applicant does not seek the rebuilding, alteration, enlargement or extension of a building.(2) In determining the development application, the consent authority is to take into consideration whether the fire protection and structural capacity of the building will be appropriate to the building’s proposed use.(3) Consent to the change of building use sought by a development application to which this clause applies must not be granted unless the consent authority is satisfied that the building complies (or will, when completed, comply) with such of the Category 1 fire safety provisions as are applicable to the building’s proposed use.Note—The obligation to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in relation to the relevant development consent.(4) Subclause (3) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187(6) or 188(4).(5) The matters prescribed by this clause are prescribed for the purposes of section 4.15(1)(a)(iv) of the Act.cl 93: Am 2007 (496), Sch 1 [7] [8]; 2009 (511), Sch 1 [5]; 2018 (66), Sch 2 [22].
94 Consent authority may require buildings to be upgraded
(cf clause 66B of EP&A Regulation 1994)
(1) This clause applies to a development application for development involving the rebuilding, alteration, enlargement or extension of an existing building where—(a) the proposed building work, together with any other building work completed or authorised within the previous 3 years, represents more than half the total volume of the building, as it was before any such work was commenced, measured over its roof and external walls, or(b) the measures contained in the building are inadequate—(i) to protect persons using the building, and to facilitate their egress from the building, in the event of fire, or(ii) to restrict the spread of fire from the building to other buildings nearby.(c) (Repealed)(2) In determining a development application to which this clause applies, a consent authority is to take into consideration whether it would be appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia.(2A), (2B) (Repealed)(3) The matters prescribed by this clause are prescribed for the purposes of section 4.15(1)(a)(iv) of the Act.cl 94: Am 2007 (496), Sch 1 [9]–[11]; 2009 (511), Sch 1 [6]–[8]; 2018 (66), Sch 2 [22].
94A Fire safety and other considerations applying to erection of temporary structures
(1) This clause applies to a development application for the erection of a temporary structure.(2) In determining a development application to which this clause applies, a consent authority is to take into consideration—(a) whether the fire protection and structural capacity of the structure will be appropriate to the proposed use of the structure, and(b) whether the ground or other surface on which the structure is to be erected will be sufficiently firm and level to sustain the structure while in use.(3) The matters prescribed by this clause are prescribed for the purposes of section 4.15(1)(a)(iv) of the Act.cl 94A: Ins 2007 (496), Sch 1 [12]. Am 2018 (66), Sch 2 [22].
95 Deferred commencement consent
(cf clause 67 of EP&A Regulation 1994)
(1) A “deferred commencement” consent must be clearly identified as a “deferred commencement” consent (whether by the use of that expression or by reference to section 4.16(3) of the Act or otherwise).(2) A “deferred commencement” consent must clearly distinguish conditions concerning matters as to which the consent authority must be satisfied before the consent can operate from any other conditions.(3) A consent authority may specify the period within which the applicant must produce evidence to the consent authority sufficient enough to enable it to be satisfied as to those matters.(4) The applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period.(5) If the applicant produces evidence in accordance with this clause, the consent authority must notify the applicant whether or not it is satisfied as to the relevant matters.(6) If the consent authority has not notified the applicant within the period of 28 days after the applicant’s evidence is produced to it, the consent authority is, for the purposes only of section 8.7 of the Act, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires.Note—See also section 6.29 of the Act and clause 161 of this Regulation.cll 95: Am 2018 (66), Sch 2 [22].
96 Imposition of conditions—ancillary aspects of development
(cf clause 67A of EP&A Regulation 1994)
(1) If a consent authority grants development consent subject to a condition authorised by section 4.17(2) of the Act with respect to an ancillary aspect of the development, the consent authority may specify the period within which the ancillary aspect must be carried out to the satisfaction of the consent authority, or a person specified by the consent authority, as referred to in that subsection.(2) The applicant may produce evidence to the consent authority, or to the person specified by the consent authority for the purpose, sufficient to enable it, or the person so specified, to be satisfied in respect of the ancillary aspect of the development.(3) For the purposes of section 4.17(3) of the Act, the relevant period is the period of 28 days after the applicant’s evidence is produced to the consent authority or a person specified by the consent authority.cll 96: Am 2018 (66), Sch 2 [22].
96A Imposition of conditions—conditions limited to State significant development
A development consent may only be granted subject to a condition referred to in section 4.17(4A) or (4B) of the Act if the development is State significant development.cl 96A: Ins 2018 (66), Sch 2 [12].
97 Modification or surrender of development consent or existing use right
(cf clause 68 of EP&A Regulation 1994)
(1) A notice of modification or surrender of a development consent or existing use right, as referred to in section 4.17(5) of the Act, must include the following information—(a) the name and address of the person by whom the notice is given,(b) the address, and formal particulars of title, of the land to which the consent or right relates,(c) a description of the development consent or existing use right to be modified or surrendered,(d) particulars as to whether the consent or right is to be modified (including details of the modification) or surrendered,(e) if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the modification or surrender of the consent or right.(2) A duly signed and delivered notice of modification or surrender of a development consent or existing use right referred to in subclause (1)—(a) takes effect when it is received by the consent authority, and(b) operates, according to its terms, to modify or surrender the development consent or existing use right to which it relates.(3) A notice of voluntary surrender of a development consent, as referred to in section 104A of the Act, is to be given to the consent authority and is to include the following information—(a) the name and address of the person by whom the notice is given,(b) the address, and formal particulars of title, of the land to which the consent relates,(c) a description of the development consent to be surrendered,(d) if the person giving the notice is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the surrender of the consent,(e) if development has commenced to be carried out in accordance with the consent—a statement setting out the circumstances that indicate—(i) that so much of the development as has been carried out has been carried out in compliance with any condition of the consent, or any agreement with the consent authority relating to the consent, that is relevant to that part of the development, and(ii) that the surrender will not have an adverse impact on any third party or the locality.(4) A duly signed and delivered notice of surrender of a development consent referred to in subclause (3)—(a) takes effect when the consent authority notifies the person that—(i) it is satisfied that so much of the development as has been carried out has been carried out in compliance with any condition of the consent, or any agreement with the consent authority relating to the consent, that is relevant to that part of the development, and(ii) that the surrender will not have an adverse impact on any third party or the locality, and(b) operates, according to its terms, to surrender the consent to which it relates.cl 97: Am 2003 No 60, Sch 2 [1] [2]; 2018 (66), Sch 2 [22].
97A Fulfilment of BASIX commitments
(1) This clause applies to the following development—(a) BASIX affected development,(b) any BASIX optional development in relation to which a person has made a development application that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A of Schedule 1 for it to be so accompanied).(2) For the purposes of section 4.17(11) of the Act, fulfilment of the commitments listed in each relevant BASIX certificate for development to which this clause applies is a prescribed condition of any development consent for the development.cl 97A: Ins 25.6.2004. Am 2005 (599), Sch 1 [5]. Subst 2006 (600), Sch 1 [5]. Am 2018 (66), Sch 2 [22].
Division 8A Prescribed conditions of development consent
pt 6, div 8A, hdg: Ins 2003 No 95, Sch 2.1 [2].
98 Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989
(cf clauses 78 and 78A of EP&A Regulation 1994)
(1) For the purposes of section 4.17(11) of the Act, the following conditions are prescribed in relation to a development consent for development that involves any building work—(a) that the work must be carried out in accordance with the requirements of the Building Code of Australia,(b) in the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force before any building work authorised to be carried out by the consent commences.(1A) For the purposes of section 4.17(11) of the Act, it is prescribed as a condition of a development consent for a temporary structure that is used as an entertainment venue, that the temporary structure must comply with Part B1 and NSW Part H102 of Volume One of the Building Code of Australia.(2) This clause does not apply—(a) to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187(6) or 188(4), or(b) to the erection of a temporary building, other than a temporary structure to which subclause (1A) applies.(3) In this clause, a reference to the Building Code of Australia is a reference to that Code as in force on the date the application is made for the relevant—(a) development consent, in the case of a temporary structure that is an entertainment venue, or(b) construction certificate, in every other case.Note—There are no relevant provisions in the Building Code of Australia in respect of temporary structures that are not entertainment venues.cl 98: Am 2003 No 95, Sch 2.1 [3]; 2009 (511), Sch 1 [9]–[11]; 2018 (66), Sch 2 [22].
98A Erection of signs
(1) For the purposes of section 4.17(11) of the Act, the requirements of subclauses (2) and (3) are prescribed as conditions of a development consent for development that involves any building work, subdivision work or demolition work.(2) A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out—(a) showing the name, address and telephone number of the principal certifying authority for the work, and(b) showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and(c) stating that unauthorised entry to the work site is prohibited.(3) Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.(4) This clause does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building that does not affect the external walls of the building.(5) This clause does not apply in relation to Crown building work that is certified, in accordance with section 6.28 of the Act, to comply with the technical provisions of the State’s building laws.(6) This clause applies to a development consent granted before 1 July 2004 only if the building work, subdivision work or demolition work involved had not been commenced by that date.Note—Principal certifying authorities and principal contractors must also ensure that signs required by this clause are erected and maintained (see clause 227A which currently imposes a maximum penalty of $1,100).cl 98A: Ins 2003 No 95, Sch 2.1 [4]. Am 27.2.2004; 2009 (269), Sch 1 [2]; 2018 (66), Sch 2 [22].
98B Notification of Home Building Act 1989 requirements
(1) For the purposes of section 4.17(11) of the Act, the requirements of this clause are prescribed as conditions of a development consent for development that involves any residential building work within the meaning of the Home Building Act 1989.(2) Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the following information—(a) in the case of work for which a principal contractor is required to be appointed—(i) the name and licence number of the principal contractor, and(ii) the name of the insurer by which the work is insured under Part 6 of that Act,(b) in the case of work to be done by an owner-builder—(i) the name of the owner-builder, and(ii) if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.(3) If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the updated information.(4) This clause does not apply in relation to Crown building work that is certified, in accordance with section 6.28 of the Act, to comply with the technical provisions of the State’s building laws.cl 98B: Ins 2003 No 95, Sch 2.1 [4]. Am 2009 (269), Sch 1 [3]; 2018 (66), Sch 2 [22].
98C Conditions relating to entertainment venues
For the purposes of section 4.17(11) of the Act, the requirements set out in Schedule 3A are prescribed as conditions of development consent for the use of a building as an entertainment venue.cl 98C: Ins 2007 (496), Sch 1 [13]. Subst 2009 (511), Sch 1 [12]. Am 2018 (66), Sch 2 [22].
98D Condition relating to maximum capacity signage
(1) For the purposes of section 4.17(11) of the Act, the requirement set out in subclause (2) is prescribed as a condition of development consent (including an existing development consent) for the following uses of a building, if the development consent for the use contains a condition specifying the maximum number of persons permitted in the building—(a) entertainment venue,(b) function centre,(c) pub,(d) registered club,(e) restaurant.(2) From 26 January 2010, a sign must be displayed in a prominent position in the building stating the maximum number of persons, as specified in the development consent, that are permitted in the building.(3) Words and expressions used in this clause have the same meanings as they have in the Standard Instrument.cl 98D: Ins 2007 (496), Sch 1 [13]. Subst 2009 (511), Sch 1 [12]. Am 2016 (303), Sch 1 [3]; 2018 (66), Sch 2 [22].
98E Condition relating to shoring and adequacy of adjoining property
(1) For the purposes of section 4.17(11) of the Act, it is a prescribed condition of development consent that if the development involves an excavation that extends below the level of the base of the footings of a building, structure or work (including any structure or work within a road or rail corridor) on adjoining land, the person having the benefit of the development consent must, at the person’s own expense—(a) protect and support the building, structure or work from possible damage from the excavation, and(b) where necessary, underpin the building, structure or work to prevent any such damage.(2) The condition referred to in subclause (1) does not apply if the person having the benefit of the development consent owns the adjoining land or the owner of the adjoining land has given consent in writing to that condition not applying.cl 98E: Ins 2009 (39), Sch 1 [1]. Am 2013 (705), Sch 1 [8] [9]; 2018 (66), Sch 2 [22].
Division 9
99 (Repealed)
pt 6, div 9 (cl 99): Rep 2008 (467), Sch 1 [7].
Division 10 Post-determination notifications
100 Notice of determination
(cf clause 68A of EP&A Regulation 1994)
(1) For the purposes of section 4.18(1) of the Act, a notice of the determination of a development application must contain the following information—(a) whether the application has been granted or refused,(b) if the application has been granted, the terms of any conditions (including conditions prescribed under section 4.17(11) of the Act) on which it has been granted,(c) if the application has been refused, or granted subject to conditions (other than conditions prescribed under section 4.17(11) of the Act), the consent authority’s reasons for the refusal or for the imposition of those conditions,(c1) whether the applicant has the right to request a review of the determination under section 8.3 of the Act,(c2) in the case of a consent for a concept development application—whether a subsequent development application is required for any part of the site concerned,(d) the date on which the determination was made,(e) the date from which any development consent that is granted operates,(f) the date on which any development consent that is granted lapses,(g) if the development involves a building but does not require a construction certificate for the development to be carried out, the class of the building under the Building Code of Australia,(h) whether the Independent Planning Commission has conducted a public hearing in respect of the application,(i) which approval bodies have given general terms of approval in relation to the development, as referred to in section 4.50 of the Act,(j) whether the Act gives a right of appeal or a right to make an application for a review against the determination to the applicant,(k) whether the Act gives a right of appeal against the determination to an objector.(2) The notice of determination must clearly identify the relevant development application by reference to its registered number.(3) A notice of determination of a grant of development consent must include a copy of any relevant plans endorsed by the consent authority.(4) In the case of a development consent granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, or a person specified by the consent authority, as to any matter specified in the condition—(a) the date from which the consent operates must not be endorsed on the notice of determination, and(b) if the applicant satisfies the consent authority, or person, as to the matter, the consent authority must give notice to the applicant of the date from which the consent operates.(5) (Repealed)(6) If the determination was one for which concurrence was required under Part 7 of the Biodiversity Conservation Act 2016 or under Part 7A of the Fisheries Management Act 1994, a copy of the notice of determination must be given to the Environment Agency Head or the Secretary of the Department of Industry, as the case requires.(7) For the purposes of section 4.18(1) of the Act, a notice of the determination of a development application relating to land owned by a Local Aboriginal Land Council must also be given to the New South Wales Aboriginal Land Council.(8) For the purposes of section 4.18(1) of the Act, a notice of the determination of a development application to which clause 19 of State Environmental Planning Policy (Three Ports) 2013 applies must also be given to the chief executive of the applicable Port Operator (within the meaning of that Policy) not later than 7 days after the determination is made.cl 100: Am 22.12.2000; 2003 No 95, Sch 2.1 [5] [6]; 25.6.2004; 2005 (600), Sch 1 [7]; 2008 (467), Sch 1 [8]; 2009 No 58, Sch 2.3 [3]; 2011 (70), Sch 1 [6]; 2011 (510), Sch 2 [20]; 2013 (236), Sch 1 [1]; 2014 (286), Sch 1 [1]; 2015 No 15, Sch 3.26 [5] [6]; 2017 No 38, Sch 2.2 [2]; 2017 (440), Sch 1 [8]; 2018 (66), Sch 2 [22]; 2018 (500), Sch 2 [17].
101 Additional particulars with respect to section 7.11 and 7.12 conditions
(cf clause 69A of EP&A Regulation 1994)
(1) The notice to an applicant concerning a development consent the subject of a section 7.11 condition must include the following particulars in addition to any other particulars it is required to contain—(a) the specific public amenity or service in respect of which the condition is imposed,(b) the contributions plan under which the condition is imposed,(c) the address of the places where a copy of the contributions plan may be inspected.(2) The notice to an applicant concerning a development consent the subject of a section 7.12 condition must include the following particulars in addition to any other particulars it is required to contain—(a) the contributions plan under which the condition is imposed,(b) the address of the places where a copy of the contributions plan may be inspected.cl 101: Am 2005 (339), Sch 1 [15]; 2018 (66), Sch 2 [22].
102 How soon must a notice of determination be sent?
(cf clause 69 of EP&A Regulation 1994)
(1) A notice under section 4.18(1) of the Act must be sent to each person to whom it is required by that subsection to be sent within 14 days after the date of the determination of the applicant’s development application.(2) For the purposes of section 4.18(1)(c) of the Act, any person who made a submission under the Act in relation to a development application (whether or not involving designated development) is required to be notified of the consent authority’s determination of the application.(3) Failure to send the notice within the 14-day period does not affect the validity of the notice or the development consent (if any) to which it relates.cl 102: Am 2018 (66), Sch 2 [22].
103 Notice under sections 6.6 and 6.12 of the Act of appointment of principal certifying authority
(cf clause 70 of EP&A Regulation 1994)
A notice given under or for the purposes of section 6.6(2)(a) or 6.12(2)(a) of the Act must contain the following information—(a) (Repealed)(b) a description of the work to be carried out,(c) the address of the land on which the work is to be carried out,(d) the registered number and date of issue of the relevant development consent,(e) the name and address of the principal certifying authority, and of the person by whom the principal certifying authority was appointed,and, if the consent authority so requires, must be in the form approved by that authority.(f) if the principal certifying authority is an accredited certifier—(i) his, her or its accreditation number, and(ii) (Repealed)(iii) a statement signed by the accredited certifier to the effect that he, she or it consents to being appointed as principal certifying authority, and(iv) a telephone number on which he, she or it may be contacted for business purposes,cl 103: Am 2003 No 95, Sch 2.1 [7]–[10]; 2005 No 115, Sch 3.3 [2]; 2008 (467), Sch 1 [9] [10]; 2018 (66), Sch 2 [22].
103A Notice under section 6.6 of the Act of critical stage inspections
A notice given under section 6.6(2)(b) of the Act must contain the following information—(a) the name and accreditation number of the principal certifying authority by whom the notice is given,(b) a telephone number on which the principal certifying authority can be contacted for business purposes,(c) the registered numbers of the development consent and of the construction certificate,(d) a description of the work to be carried out,(e) the address of the land at which the work is to be carried out,(f) a list of the critical stage inspections and other inspections required to be carried out in respect of the work.cl 103A: Ins 2003 No 95, Sch 2.1 [11]. Am 2018 (66), Sch 2 [22].
104 Notice under sections 6.6 and 6.12 of the Act of intention to commence subdivision work or erection of building
(cf clause 70 of EP&A Regulation 1994)
A notice given under or for the purposes of section 6.6(2)(e) or 6.12(2)(c) of the Act must contain the following information—(a) the name and address of the person by whom the notice is being given,(b) a description of the work to be carried out, and(c) the address of the land on which the work is to be carried out, and(d) the registered number and date of issue of the relevant development consent,(e) the registered number and date of issue of the relevant construction certificate,(f) a statement signed by or on behalf of the principal certifying authority to the effect that all conditions of the consent that are required to be satisfied prior to the work commencing have been satisfied,and, if the consent authority so requires, must be in the form approved by that authority.(g) the date on which the work is intended to commence,cll 104: Am 2018 (66), Sch 2 [22].
105 Notice under section 4.47(6) of the Act to approval bodies of determination of development application for integrated development
(cf clause 70A of EP&A Regulation 1994)
(1) A notice under section 4.47(6) of the Act to an approval body must be sent to the approval body within 14 days after the date of the determination of the relevant development application.(2) Failure to send the notice within the 14-day period does not affect the validity of the notice or the development consent (if any) to which it relates.cll 105: Am 2018 (66), Sch 2 [22].
Division 11 Time within which development application procedures to be completed
106 Definition of “assessment period”
In this Division, assessment period means—(a) the period prescribed by clause 62(1) (or the period of 50 days prescribed by clause 59(3)) as the period within which a concurrence authority must notify its decision as to a development application relating to development that requires its concurrence, but only if that period has commenced to run, orNote—Generally, the period prescribed by clause 62(1) is 21 or 40 days.(b) the period of 21 or 40 days, as the case may be, prescribed by clause 70(1) as the period within which an approval body must notify its decision as to a development application relating to integrated development, but only if that period has commenced to run,(c) the period of 25 days referred to in clauses 109(2), 110(2) and 111(2),(d) the period of 40, 60 or 90 days, as the case may be, prescribed by clause 113(1) as the period beyond which a development application is taken to have been refused.cl 106: Am 2015 (424), Sch 1 [1]; 2017 (440), Sch 1 [9]; 2018 (756), Sch 1 [9] [10].
107 First 2 days after development application is lodged
Neither the day on which a development application is lodged with the consent authority nor the following day are to be taken into consideration in calculating the number of days in any of the assessment periods.
108 (Repealed)
cl 108: Am 2011 No 27, Sch 2.15 [1]; 2015 No 15, Sch 2.20 [1]. Rep 2018 (756), Sch 1 [11].
109 Days occurring while consent authority’s request for additional information remains unanswered
(1) Any day that occurs between the date of a consent authority’s request for additional information under clause 54 and—(a) the date on which the information is provided to the consent authority, orwhichever is the earlier, is not to be taken into consideration in calculating the number of days in any of the assessment periods.(b) the date on which the applicant notifies, or is taken to have notified, the consent authority in writing that the information will not be provided,(2) Subclause (1) applies only if the relevant request is made within 25 days after the date on which the development application was lodged with the consent authority.Note—The 25-day period may be extended by operation of clauses 107 and 108.cl 109: Am 22.12.2000; 2005 (600), Sch 1 [8].
110 Days occurring while concurrence authority’s or approval body’s request for additional information remains unanswered
(1) Any day that occurs between the date on which a consent authority receives a concurrence authority’s or approval body’s request for additional information under clause 60 or 67 and—(a) the date occurring 2 days after the date on which the consent authority refers to the concurrence authority or approval body the additional information provided by the applicant, orwhichever is the earlier, is not to be taken into consideration in calculating the number of days in any of the assessment periods.(b) the date occurring 2 days after the date on which the consent authority notifies the concurrence authority or approval body that the applicant has notified the consent authority that the additional information will not be provided,(2) Subclause (1) applies only if the relevant request is made within 25 days after the date on which the development application is received by the concurrence authority or approval body concerned.Note—The 25-day period may be extended by operation of clauses 107 and 108.(3) Subclause (1) does not apply in relation to a request for additional information that is made by the Planning Secretary under—(a) clause 60 (in circumstances in which the Planning Secretary is a concurrence authority due to the operation of State Environmental Planning Policy (Concurrences) 2018), or(b) clause 70AA.cl 110: Am 22.12.2000; 2018 (756), Sch 1 [12].
111 Days occurring during consultation under National Parks and Wildlife Act 1974
(1) If—(a) development is integrated development because, or partly because, it requires consent under section 90 of the National Parks and Wildlife Act 1974, andany day that occurs during the consultation (being a period that does not extend more than 46 days from the date on which the development application was lodged with the consent authority) is not to be taken into consideration for the purpose of calculating the number of days in any of the assessment periods.(b) the Chief Executive of the Office of Environment and Heritage is of the opinion that consultation with an Aboriginal person or persons, an Aboriginal Land Council or another Aboriginal organisation concerning a relic or Aboriginal place is required before the Chief Executive can make a decision concerning the general terms of approval in relation to such a consent (including whether or not the Chief Executive will grant consent),(2) Subclause (1) applies only if the consultation commences within 25 days after the date on which the development application is forwarded to the Chief Executive of the Office of Environment and Heritage.Note—The 25-day period may be extended by operation of clauses 107 and 108.cl 111: Ins 22.12.2000. Am 2015 No 15, Sch 3.26 [3] [4]; 2018 (500), Sch 2 [33].
112 Consent authority to notify applicant that time has ceased to run
(1) On the occurrence of each of the following events, namely—(a) a request by a consent authority for additional information under clause 54,(b) the receipt by a consent authority of a concurrence authority’s or approval body’s request for additional information under clause 60 or 67,the consent authority must notify the applicant of the effect that this Division has on the various assessment periods to which this Division relates as a consequence of those events having occurred.(c) the receipt by a consent authority of a notice from the Chief Executive of the Office of Environment and Heritage under clause 68,(2) If several events require notification under this clause, a single notification referring to each of those events is sufficient.Note—The object of this clause is to ensure that the applicant is kept informed as to when the various deadlines imposed by this Regulation occur in relation to the processing of his or her development application and, in particular, as to when any right of appeal may arise as a consequence of a deemed refusal of the application.cl 112: Am 2005 (600), Sch 1 [9]; 2015 No 15, Sch 3.26 [5].
113 Applications taken to be refused
(cf clause 70B of EP&A Regulation 1994)
(1) For the purposes of section 8.11(1) of the Act, a development application is taken to be refused if a consent authority has not determined the application within the deemed refusal period, being—(a) 40 days, except in the case of development referred to in paragraph (b) or (c), or(b) 60 days, in the case of—(i) designated development, or(ii) integrated development (other than integrated development that, pursuant to Part 5 of State Environmental Planning Policy (Primary Production and Rural Development) 2019, is Class 1 aquaculture development), or(iii) development for which the concurrence of a concurrence authority is required, or(iv) a development application that is accompanied by a biodiversity development assessment report and that proposes a discount in the biodiversity credits required under the report to be retired, or(c) 90 days, in the case of State significant development.(2) The deemed refusal period is measured from—(a) the date the development application is lodged with the consent authority, or(b) the date the Commission complies with clause 6 of Schedule 2 to the Act, if a public hearing has been conducted by the Independent Planning Commission into development other than development the subject of a development application to which section 8.7 of the Act does not apply, or part of any such development.(3) In the case of designated development or other advertised development for which the relevant submission period exceeds 28 days, the deemed refusal period is to be increased by that part of the submission period that exceeds 28 days, despite subclause (1).(4) If the relevant submission period for a development application for designated development is more than 28 days, the consent authority is to notify the applicant of the period and the effect of the extension of the period on the operation of this Division for the purposes of section 8.11 of the Act.(5) In the case of State significant development for which the relevant submission period exceeds 28 days, the deemed refusal period is to be increased by that part of the submission period that exceeds 28 days, despite subclause (1).(6) If the relevant submission period for a development application for State significant development is more than 28 days, the Minister is to notify the applicant of the period and the effect of the extension of the period on the operation of this Division for the purposes of section 8.11 of the Act.(7) In the case of State significant development, any day that occurs between the date of the Planning Secretary’s request for a written response to submissions under clause 85A and the date on which that response is provided to the Planning Secretary is not to be taken into consideration in calculating the number of days in the deemed refusal period.Note—This clause does not apply in respect of a development application if section 8.7 of the Act does not apply to the application.cl 113: Am 2008 (467), Sch 1 [11]; 2011 (510), Sch 2 [21]–[29]; 2017 (440), Sch 1 [10]; 2018 (66), Sch 2 [22]; 2018 (500), Sch 2 [17] [34] [35]; 2018 No 68, Sch 2.12 [2]; 2019 (120), Sch 1 [1].
113A Public participation: application under section 8.3 of the Act for review of council’s determination
(1) This clause applies to an application under section 8.3 of the Act for review by a council of its determination of a development application.(2) An application to which this clause applies must be notified or advertised for a period not exceeding 14 days, but otherwise in the same manner as the original development application was notified or advertised.(3) However, if the application is made to a council that has provided in a development control plan for the notification or advertising of such an application, the application is to be notified or advertised in accordance with the development control plan.(4) The council must cause copies of the application to be given to each concurrence authority for the development to which the application relates.(5) The notice or advertisement referred to in subclause (2) must contain the following information—(a) a brief description of the original development application and the land to which it relates,(b) a statement that submissions concerning the application for review may be made to the council within the period referred to in section 8.5(1)(b) of the Act.(6) For the purposes of section 8.5(1)(b) of the Act, the period within which submissions may be made in relation to such an application is the period specified—(a) in subclause (2), except as provided by paragraph (b), or(b) if the council has made a development control plan specifying such a period, in the development control plan.(7) During the period referred to in subclause (2) or, if a development control plan provides for a period for notification or advertising of an application, during that period, any person may inspect the application and any accompanying information and make extracts from or copies of them.cl 113A: Ins 7.2.2003. Am 2018 (66), Sch 2 [22].
113B Period after which Crown development applications may be referred to Minister or regional panel
(1) For the purposes of section 4.33(2) of the Act, the prescribed period is 70 days after the Crown development application is lodged with the consent authority.(2) For the purposes of section 4.33(5) of the Act, the prescribed period is 50 days after the Crown development application is referred to the applicable regional panel under section 4.33(2)(b) of the Act.cl 113B: Ins 2009 (269), Sch 1 [4]. Am 2018 (66), Sch 2 [22]; 2018 (500), Sch 2 [36].
Division 12 Development consents—extension, completion and modification
114 What is the form for an application for extension of a development consent?
(cf clause 71 of EP&A Regulation 1994)
An application under section 4.54 of the Act for the extension of time to commence development—(a) must be in writing, and(b) must identify the development consent to which it relates, and(c) must indicate why the consent authority should extend the time.cl 114: Am 2018 (66), Sch 2 [22].
114A (Repealed)
cl 114A: Ins 2003 No 60, Sch 2 [3]. Rep 2005 (391), Sch 1 [3].
115 Application for modification of development consent
(cf clause 71A of EP&A Regulation 1994)
(1) An application for modification of a development consent under section 4.55(1), (1A) or (2) or 4.56(1) of the Act must contain the following information—(a) the name and address of the applicant,(b) a description of the development to be carried out under the consent (as previously modified),(c) the address, and formal particulars of title, of the land on which the development is to be carried out,(d) a description of the proposed modification to the development consent,(e) a statement that indicates either—(i) that the modification is merely intended to correct a minor error, misdescription or miscalculation, or(ii) that the modification is intended to have some other effect, as specified in the statement,(f) a description of the expected impacts of the modification,(g) an undertaking to the effect that the development (as to be modified) will remain substantially the same as the development that was originally approved,(g1) in the case of an application that is accompanied by a biodiversity development assessment report, the reasonable steps taken to obtain the like-for-like biodiversity credits required to be retired under the report to offset the residual impacts on biodiversity values if different biodiversity credits are proposed to be used as offsets in accordance with the variation rules under the Biodiversity Conservation Act 2016,(h) if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the making of the application (except where the application for the consent the subject of the modification was made, or could have been made, without the consent of the owner),and, if the consent authority so requires, must be in the form approved by that authority.(i) a statement as to whether the application is being made to the Court (under section 4.55) or to the consent authority (under section 4.56),(2) The notification requirements of clause 49 apply in respect of an application if the consent of the owner of the land would not be required were the application an application for development consent rather than an application for the modification of such consent.(3) In addition, if an application for the modification of a development consent under section 4.55(2) or section 4.56(1) of the Act relates to residential apartment development and the development application was required to be accompanied by a design verification from a qualified designer under clause 50(1A), the application must be accompanied by a statement by a qualified designer.(3A) The statement by the qualified designer must—(a) verify that he or she designed, or directed the design of, the modification of the development and, if applicable, the development for which the development consent was granted, and(b) provide an explanation of how—(i) the design quality principles are addressed in the development, and(ii) in terms of the Apartment Design Guide, the objectives of that guide have been achieved in the development, and(c) verify that the modifications do not diminish or detract from the design quality, or compromise the design intent, of the development for which the development consent was granted.(3B) If the qualified designer who gives the design verification under subclause (3) for an application for the modification of development consent (other than in relation to State significant development) does not verify that he or she also designed, or directed the design of, the development for which the consent was granted, the consent authority must refer the application to the relevant design review panel (if any) for advice as to whether the modifications diminish or detract from the design quality, or compromise the design intent, of the development for which the consent was granted.(4) If an application referred to in subclause (3) is also accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in that subclause need not be verified to the extent to which they aim—(a) to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or(b) to improve the thermal performance of the building.(5) The consent authority may refer the proposed modification to the relevant design review panel but not if the application is for modification of a development consent for State significant development.(6) An application for the modification of a development consent under section 4.55(1A) or (2) of the Act, if it relates to development for which the development application was required to be accompanied by a BASIX certificate or BASIX certificates, or if it relates to BASIX optional development in relation to which a person has made a development application that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A of Schedule 1 for it to be so accompanied), must also be accompanied by the appropriate BASIX certificate or BASIX certificates.(7) The appropriate BASIX certificate for the purposes of subclause (6) is—(a) if the current BASIX certificate remains consistent with the proposed development, the current BASIX certificate, and(b) if the current BASIX certificate is no longer consistent with the proposed development, a new BASIX certificate to replace the current BASIX certificate.(8) An application for modification of a development consent under section 4.55(1), (1A) or (2) or 4.56(1) of the Act relating to land owned by a Local Aboriginal Land Council may be made only with the consent of the New South Wales Aboriginal Land Council.(9) The application must be accompanied by the relevant fee prescribed under Part 15.(10) A development consent may not be modified by the Land and Environment Court under section 4.55 of the Act if an application for modification of the consent has been made to the consent authority under section 4.56 of the Act and has not been withdrawn.cl 115: Am 26.7.2002; 7.2.2003; 25.6.2004; 2005 (599), Sch 1 [6]–[10]; 2006 (600), Sch 1 [6] [7]; 2007 (6), Sch 1 [3]; 2009 No 58, Sch 2.3 [4]; 2011 (510), Sch 2 [30]–[35]; 2015 (315), Sch 1 [6]; 2017 (440), Sch 1 [11]; 2018 (66), Sch 2 [22].
116 Modification of consent granted by Court
A copy of an application for the modification of a development consent granted by the Court is not to be lodged with the Court, but with the consent authority that dealt with the original development application from which that consent arose.cl 116: Am 7.2.2003. Subst 2011 (510), Sch 2 [36].
117 Modification of consent involving minimal environmental impact
(1) This clause applies to an application under section 4.55(1A) of the Act or under section 4.56 of the Act in respect of a modification which, in the opinion of the consent authority, is of minimal environmental impact.(2) If an application to which this clause applies is required by a development control plan to be notified or advertised and the development consent was granted by the Court on appeal, the application must be so notified or advertised by the consent authority to which the original development application was made.(3) A consent authority referred to in subclause (2) must, in the case of an application under section 4.56 of the Act, notify the Court of—(a) the manner in which the application was notified or advertised, and(b) any submission period required by the development control plan, and(c) the date (or dates) on which the application was notified or advertised.(3A) If an application to which this clause applies relates to a development consent that was originally granted or deemed to have been refused by a regional panel, the council or councils of the area in which the development concerned is to be carried out are to notify or advertise the application, and are to notify the Court (if applicable), in accordance with this clause instead of the regional panel.(3B) Subclauses (2)–(3A) do not apply if the application to which this clause applies is in respect of State significant development.(4) If a development control plan provides for a period for notification or advertising of an application, any person during that period may inspect the application and any accompanying information and make extracts from or copies of them.cl 117: Am 22.12.2000; 7.2.2003; 2006 (587), Sch 1 [1]; 2009 (269), Sch 1 [5]; 2011 (510), Sch 2 [37]; 2018 (66), Sch 2 [22].
118 Applications under sections 4.55(2) and 4.56 for modification of certain development consents
(cf clause 72A of EP&A Regulation 1994)
(1) This clause applies to an application under section 4.55(2) or 4.56(1) of the Act to modify a development consent if the original development application for the consent was an application to carry out any of the following—(a) designated development,(b) State significant development,(c) any other advertised development where the application was made to a consent authority other than a council.(2) Notice of the application must be published in a local newspaper by the relevant consent authority, that is—(a) by the consent authority that granted the development consent, or(b) by the consent authority to which the original development application was made, if development consent was granted by the Court on appeal, or(c) by the council or councils of the area in which the development concerned is to be carried out, if the development consent was granted by a regional panel or if the development consent was granted by the Court on appeal and the original development consent was granted or was deemed to have been refused by a regional panel.(3) The relevant consent authority must also cause notice of the application to be given to each person who made a submission in relation to the original development application.(4) A consent authority referred to in subclause (2)(b) or a council referred to in subclause (2)(c) (if development consent was granted by the Court) must, in the case of an application under section 4.56 of the Act, notify the Court of the date on which notice of the application is published under subclause (2).(5) The notice published under subclause (2) must contain the following information—(a) a brief description of the development consent, the land to which it relates and the details of the modification sought,(b) a statement that written submissions concerning the proposed modification may be made to the consent authority that publishes the notice within the period specified in accordance with paragraph (c),(c) the period during which the application may be inspected at the principal office of the consent authority that publishes the notice,(d) a statement that, if the application is approved, there is no right of appeal to the Court by an objector.(6) For the purposes of sections 4.55(2)(d) and 4.56(1)(d) of the Act, the period referred to in subclause (5)(c) must be a period of at least 14 days commencing on the day after which notice of the application for modification is first published in a local newspaper.(7) During the period referred to in subclause (5)(c), any person may inspect the application and any accompanying information and make extracts from or copies of them.cl 118: Am 7.2.2003; 2006 (587), Sch 1 [2]; 2009 (269), Sch 1 [6] [7]; 2011 (510), Sch 2 [38]; 2018 (66), Sch 2 [22].
119 Public participation—applications under sections 4.55(2) and 4.56 for modification of other development consents
(1) This clause applies to an application under section 4.55(2) of the Act to which clause 118 does not apply or under section 4.56(1) of the Act to which clauses 117 and 118 do not apply.(2) An application to which this clause applies must be notified or advertised for a period not exceeding 14 days but otherwise in the same manner as the original development application was notified or advertised.(3) However, if the application is made to a council that has provided in a development control plan for the notification or advertising of such an application (or has provided that such an application is not required to be notified or advertised), the application is to be notified or advertised in accordance with the development control plan.(4) If an application to which this clause applies is required by this clause or a development control plan to be notified or advertised and the development consent was granted by the Court on appeal, the application must be so notified or advertised by the council to which the original development application was made.(5) A council referred to in subclause (4) must, in the case of an application under section 4.56 of the Act, notify the Court of—(a) the manner in which the application was notified or advertised, and(b) any submission period required by the development control plan, and(c) the date (or dates) on which the application was notified or advertised.(5A) If an application to which this clause applies is made about a development consent granted, or deemed to have been refused, by a regional panel, the council or councils of the area in which the development concerned is to be carried out are to notify or advertise the application, and are to notify the Court (if applicable), in accordance with this clause instead of the regional panel.(6) During the period referred to in subclause (2) or, if a development control plan provides for a period for notification or advertising of an application, during that period, any person may inspect the application and any accompanying information and make extracts from or copies of them.cl 119: Am 7.2.2003; 2006 (587), Sch 1 [3]; 2009 (269), Sch 1 [8]; 2018 (66), Sch 2 [22].
119A Special provisions relating to applications under section 4.55(2) relating to strategic agricultural land
(1) This clause applies to an application to modify a development consent under section 4.55(2) of the Act that relates to mining or petroleum development (within the meaning of Part 4AA of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007) on the following land—(a) land shown on the Strategic Agricultural Land Map,(b) any other land that is the subject of a site verification certificate.(2) An application to which this clause applies must be accompanied by—(a) in relation to land shown on the Strategic Agricultural Land Map as critical industry cluster land—a current gateway certificate in respect of the proposed development to be carried out under the modified consent, or(b) in relation to any other land—(i) a current gateway certificate in respect of the proposed development to be carried out under the modified consent, or(ii) a site verification certificate that certifies that the land concerned is not biophysical strategic agricultural land.(3) For the avoidance of doubt, Part 4AA of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (other than Divisions 2 and 5) applies (with all necessary changes) to an application to which this clause applies as if it were an application for development consent.(4) For the avoidance of doubt, a site verification certificate or a gateway certificate for the purposes of this clause may be issued with respect to the part of land or the part of the proposed development to which the modification relates (rather than the whole of the land or the whole development to which the consent relates).(5) This clause does not apply to or with respect to an application under section 4.55(2) of the Act that was made, but not determined, on or before 10 September 2012.(5A) In addition to subclause (5), this clause does not apply to or with respect to an application under section 4.55(2) of the Act if—(a) the land to which the application relates was not shown (whether in whole or in part) on the Strategic Agricultural Land Map before 28 January 2014, and(b) the application was made, but not determined, on or before 3 October 2013.(5B) However, the Minister or the Planning Secretary, in dealing with an application referred to in subclause (5) or (5A), may seek the advice of the Gateway Panel.(6) In this clause, biophysical strategic agricultural land, critical industry cluster land and Strategic Agricultural Land Map have the same meanings as they have in State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007.cl 119A: Ins 2013 (578), Sch 2 [3]. Am 2014 (463), Sch 2 [2]; 2018 (66), Sch 2 [22].
120 Notification of concurrence authorities and approval bodies
(1) As soon as practicable after receiving an application for the modification of a development consent, a consent authority must cause a copy of the application to be given to each concurrence authority and approval body for the development to which the application relates.(2) If an application to which this clause applies is made about a development consent granted by a regional panel, the council or councils of the area in which the development concerned is to be carried out are to comply with subclause (1) instead of the regional panel.cl 120: Am 2009 (269), Sch 1 [9].
121 Applications for modifications of development consents to be kept available for public inspection
(cf clause 73 of EP&A Regulation 1994)
(1) An application for the modification of a development consent must be made available for inspection by the consent authority that published the notice of the application.(2) The application—(a) must be available at the consent authority’s principal office, free of charge, during the consent authority’s ordinary office hours, and(b) must be available for the period specified in the notice referred to in subclause (1).
122 Notice of determination of application to modify development consent
(cf clause 73A of EP&A Regulation 1994)
(1) Notice in writing of the determination of an application for the modification of a development consent must be given to the applicant as soon as practicable after the determination is made.(1A) A notice of determination of an application granted for the modification of a development consent must include a copy of any relevant plans endorsed by the consent authority.(2) If the determination is made subject to conditions or by refusing the application, the notice—(a) must indicate the consent authority’s reasons for the imposition of the conditions or the refusal, and(b) must specify any right of the applicant to seek a review or make an appeal against the determination under the Act.(3) If an application for the modification of a development consent applies to land owned by a Local Aboriginal Land Council, notice under subclause (1) must also be given to the New South Wales Aboriginal Land Council.cl 122: Am 2003 No 95, Sch 2.1 [12]; 2008 (467), Sch 1 [12]; 2009 No 58, Sch 2.3 [5]; 2011 (70), Sch 1 [7].
122A Effect of failure to determine modification applications
(1) For the purposes of sections 4.55(6) and 4.56(3) of the Act—(a) a consent authority is taken to have refused an application under section 4.55 or 4.56 if it fails to determine the application within 40 days after the application is made, and(b) a later determination does not prejudice or affect the continuance or determination of an appeal made under section 8.9 of the Act in respect of a determination that is taken by this clause to have been made.(2) If a later determination 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 8.9 of the Act in respect of a determination that is taken to have been made by this clause) withdrawn at any time prior to the determination of that appeal.cl 122A: Ins 2011 (70), Sch 1 [8]. Am 2018 (66), Sch 2 [22]; 2018 (500), Sch 2 [37].
123 Persons to be informed of proposed revocation or modification of consent under section 4.57(3) of the Act
(cf clause 73B of EP&A Regulation 1994)
(1) For the purposes of section 4.57(3)(a)(ii) of the Act, the Secretary of the Department of Finance, Services and Innovation is a prescribed person if the proposed revocation or modification affects—(a) the transfer, alteration, repair or extension of water service pipes, or(b) the carrying out of sanitary plumbing work, sanitary drainage work or stormwater drainage work.(2) The notification of the proposed revocation or modification of a consent or a complying development certificate must include the reasons for the proposed revocation or modification.cl 123: Am 2015 No 15, Sch 3.26 [7]; 2018 (66), Sch 2 [22].
123A (Repealed)
cl 123A: Ins 7.2.2003. Rep 2018 (66), Sch 2 [13] (transferred to Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).
Division 12A Additional provisions where regional panel is exercising consent authority functions
pt 6, div 12A: Ins 2009 (269), Sch 1 [10].
123B Application of Division
(1) This Division applies to development for which a regional panel has the function of determining the development application or an application to modify a development consent.(2) In this Division, a reference to a development application includes a reference to an application to modify a development consent.cl 123B: Ins 2009 (269), Sch 1 [10].
123BA Functions exercisable by council on behalf of regional panel
The following consent authority functions of a Sydney district or regional planning panel are prescribed under section 4.7(2)(h) of the Act as functions to be exercised on behalf of a panel by the council of the area concerned—(a) the determination of applications to modify a development consent under section 4.55(1) of the Act,(b) the determination of applications to modify a development consent under section 4.55(1A) of the Act.cl 123BA: Ins 2018 (363), Sch 1 [1].
123C Development applications where land is in 2 or more local government areas
(1) This clause applies to development applications for development located in 2 or more local government areas.(2) A separate development application for the proposed development must be lodged with each council for an area in which the proposed development is situated.cl 123C: Ins 2009 (269), Sch 1 [10].
123D (Repealed)
cl 123D: Ins 2009 (269), Sch 1 [10]. Am 2011 (70), Sch 1 [9]. Rep 2018 (363), Sch 1 [2].
123E Procedural matters related to determination of development applications
(1) A regional panel may, for the purpose of determining a development application—(a) obtain assessment reports, in addition to any assessment report or other information provided by a relevant council in dealing with the application, and(b) obtain other technical advice or assistance as the panel thinks fit.(2) If a development consent is granted by a regional panel subject to a condition referred to in section 4.16(3) or 4.17(2) of the Act, the regional panel is taken to be satisfied as to a matter specified in the condition if the council for the area in which the land on which the development is to be carried out notifies the chairperson of the panel in writing that the matter specified in the condition has been satisfied.cl 123E: Ins 2009 (269), Sch 1 [10]. Am 2018 (363), Sch 1 [3].
123F Procedural matters relating to determination of applications to modify consents
A regional panel may carry out consultation for the purposes of section 4.55(2)(b) of the Act by directing the general manager of a council for an area in which the development the subject of the consent is to be carried out to consult with the relevant Minister, public authority or approval body on behalf of the regional panel.cl 123F: Ins 2009 (269), Sch 1 [10]. Am 2018 (363), Sch 1 [4] [5].
Division 12B Applications for review under Division 2 of Part 4 of the Act
pt 6, div 12B: Ins 2011 (70), Sch 1 [10].
123G Review of determination of development application
A council must give written notice to an applicant of the result of a review under section 8.3 of the Act as soon as practicable after the review is determined.cll 123G: Ins 2011 (70), Sch 1 [10]. Am 2018 (66), Sch 2 [22].
123H Review of decision to reject development application
(1) An application for a review under section 8.3 of the Act by a council must be made not later than 14 days after the applicant is given written notice by the council of its decision to reject and not to determine the application.(2) A council must give written notice to the applicant of the result of a review as soon as practicable after the review is determined.(3) A council is taken to have refused an application for a review if it fails to determine the application within 14 days after the application is made.cll 123H: Ins 2011 (70), Sch 1 [10]. Am 2018 (66), Sch 2 [22].
123I Review of modification decision
(1) An application for a review under section 8.3 of the Act is to be made not later than 28 days after the date on which the application for the modification of the development consent was determined.(2) An application must be notified or advertised—(a) for a period not exceeding 14 days, but otherwise in the same manner as the original application for modification was notified or advertised, or(b) if the application is made to a council that has provided in a development control plan for the notification or advertising of such an application, the application is to be notified or advertised in accordance with the development control plan.(3) The notice or advertisement must contain the following information—(a) a brief description of the original modification application and the land to which it relates,(b) a statement that submissions concerning the application for review may be made to the council within the notification period.(4) Submissions may be made in relation to such an application during the notification period and during that period any person may inspect the application and any accompanying information and make extracts from or copies of them.(5) The council must, as soon as practicable after the review is determined, give written notice of the results of the review to—(a) the applicant, and(b) if the application applies to land owned by a Local Aboriginal Land Council—the New South Wales Aboriginal Land Council (but not if the review confirms the determination).(6) In this clause—notification period means the period during which the application is required to be advertised or notified under subclause (2).cl 123I: Ins 2011 (70), Sch 1 [10]. Am 2018 (66), Sch 2 [22]; 2018 (500), Sch 2 [38].
Division 13 Validity of development consents
124 What are the public notification procedures for the purposes of section 4.59 of the Act?
(cf clause 74 of EP&A Regulation 1994)
(1) The granting of a development consent is publicly notified for the purposes of section 4.59 of the Act if—(a) public notice in a local newspaper is given—(i) by the consent authority, or(ii) if the consent authority is not the council, by the consent authority or the council, and(b) the notice describes the land and the development the subject of the development consent, and(c) the notice contains a statement that the development consent is available for public inspection, free of charge, during ordinary office hours—(i) at the consent authority’s principal office, or(ii) if the consent authority is not the council, at the consent authority’s office or the council’s principal office.(2) Nothing in this clause confers a right or entitlement to inspect, make copies of or take extracts from so much of a document that, because of section 12(1A) of the Local Government Act 1993, a person does not have the right to inspect.cl 124: Am 2018 (66), Sch 2 [22].
Division 14 Review conditions
pt 6, div 14: Ins 2008 No 36, Sch 2.10 [10].
124A Application of Division
This Division applies to a further condition imposed under section 4.17(10B) of the Act in relation to a development consent condition that permits extended hours of operation or increases the maximum number of persons permitted in a building (in this Division called a review condition).cl 124A: Ins 2008 No 36, Sch 2.10 [10]. Am 2018 (500), Sch 2 [39].
124B Development for which review condition may be imposed
(1) Development consent for the following uses of a building may be the subject of a review condition—(a) entertainment venue,(b) function centre,(c) pub,(d) registered club,(e) restaurant.(2) Words and expressions used in this clause have the same meanings as they have in the Standard Instrument.cl 124B: Ins 2008 No 36, Sch 2.10 [10]. Subst 2009 (511), Sch 1 [13]. Am 2016 (303), Sch 1 [3].
124C Matters to be included in consent
A consent that is subject to a review condition must include the following—(a) a statement that the consent is subject to the condition and the purpose of the condition,(b) that the consent authority is to carry out the reviews,(c) when, or at what intervals, the reviews are to be carried out.cl 124C: Ins 2008 No 36, Sch 2.10 [10].
124D Review procedures
(1) The consent authority must give the operator of a development subject to a review condition not less than 14 days written notice that a review is to be carried out under the condition.(2) The consent authority may notify such other persons as it thinks fit of the review.(3) The consent authority must take into account any submissions made by a person that are received within 14 days after notice is given to the person of a review.Note—Under section 4.17(10D) of the Act, a decision to change a review condition of a development consent is taken to be a determination of a development consent and is subject to the notification and appeal provisions under the Act in relation to such a determination.cl 124D: Ins 2008 No 36, Sch 2.10 [10]. Am 2018 (66), Sch 2 [22].
Division 15 Calling in development as State significant development
pt 6, div 15: Ins 2011 (510), Sch 2 [39].
124E Advice of Independent Planning Commission
(1) In providing its advice under section 4.36(3) of the Act, the Independent Planning Commission is to consider any general issues relating to State or regional planning significance that the Minister has requested the Commission to consider.(2) If the Minister considers that the advice of the Commission does not adequately address any such issue, the Minister may request the Commission to reconsider the issue.(3) Nothing in this clause affects the validity of any advice given or decision made under section 4.36(3) of the Act.cl 124E: Ins 2011 (510), Sch 2 [39]. Am 2018 (66), Sch 2 [22]; 2018 (500), Sch 2 [17].
124F Calling in existing development applications
(1) This clause applies to development that is declared to be State significant development by order of the Minister under section 4.36(3) of the Act and which is the subject of a development application made and not finally determined before that declaration.(2) On making the declaration, the Minister may in writing direct the relevant consent authority—(a) to complete any steps in relation to the development application, and(b) to forward to the Minister the development application and any other relevant documents and information in relation to the development, and(c) to pay to the Planning Secretary a specified proportion of any fees paid in relation to the development application, and(d) to notify the applicant, relevant authorities and any other persons or classes of persons specified in the direction that the Minister is now the consent authority for the development.(3) On the making of the declaration—(a) the development application is taken to be a development application for State significant development, and(b) any amount payable under clauses 256F–256L in relation to the development is to be reduced by the amount (if any) payable to the Planning Secretary under subclause (2)(c), and(c) any steps taken by the relevant consent authority in respect of the development application are taken to be steps taken by the Planning Secretary or the Minister in relation to the application for State significant development.cl 124F: Ins 2011 (510), Sch 2 [39]. Am 2018 (66), Sch 2 [22].
124G Planning Secretary’s functions with respect to proposed orders under section 4.36(3) of the Act
The Planning Secretary may exercise the following functions in relation to the making of an order under section 4.36(3) of the Act declaring specified development on specified land to be State significant development—(a) the receipt of a request made by the proponent for the making of the proposed order,(b) the preparation and provision of a report to the Independent Planning Commission to assist the Commission to advise the Minister on the State or regional planning significance of the proposed development,(c) consultation with councils and other relevant agencies for the purpose of preparing that report.cl 124G: Ins 2012 (346), Sch 2 [2]. Am 2018 (66), Sch 2 [22]; 2018 (500), Sch 2 [17].
Division 16 Provisions relating to local planning panels exercising consent authority functions
pt 6, div 16: Ins 2017 No 39, Sch 2.
124H Development applications where land is in 2 or more local government areas
If a single local planning panel has been established for 2 or more councils, a separate development application for proposed development situated in the areas of more than 1 of those councils must be lodged with each council for an area in which the proposed development is situated.cl 124H: Ins 2017 No 39, Sch 2.
124I Procedural matters related to determination of development applications
(1) A local planning panel may, for the purpose of determining a development application (or an application to modify a development consent)—(a) obtain assessment reports, in addition to any assessment report or other information provided by a relevant council in dealing with the application, and(b) obtain other technical advice or assistance as the panel thinks fit.(2) If a development consent is granted by a local planning panel subject to a condition referred to in section 4.16(3) or 4.17(2) of the Act, the panel is taken to be satisfied as to a matter specified in the condition if the council for the area in which the land on which the development is to be carried out notifies the chairperson of the panel in writing that the matter specified in the condition has been satisfied.cll 124I: Ins 2017 No 39, Sch 2. Am 2018 (66), Sch 2 [22].
124J Procedural matters relating to determination of applications to modify consents
A local planning panel may carry out consultation for the purposes of section 4.55(2)(b) of the Act by directing the general manager of a council for an area in which the development the subject of the consent is to be carried out to consult with the relevant Minister, public authority or approval body on behalf of the panel.cll 124J: Ins 2017 No 39, Sch 2. Am 2018 (66), Sch 2 [22].
Division 17 Council of local government area to constitute local planning panel
pt 6, div 17 (cl 124K): Ins 2019 (544), cl 3.
124K Council of Central Coast local government area to constitute local planning panel
For the purposes of section 2.17(2)(c) of the Act, the council of the Central Coast local government area is prescribed as a council that must constitute a single local planning panel for the whole of the area of the council.pt 6, div 17 (cl 124K): Ins 2019 (544), cl 3.
Part 7 Procedures relating to complying development certificates
Division 1 Applications for complying development certificates
125 Application of Part
(cf clause 75 of EP&A Regulation 1994)
This Part applies to complying development.
126 Making application for complying development certificate
(cf clause 75A of EP&A Regulation 1994)
(1) An application for a complying development certificate—(a) must contain the information, and be accompanied by the documents, specified in Part 2 of Schedule 1, and(b) if the certifying authority so requires, must be in the form approved by that authority, and(c) must be lodged on the NSW planning portal or be delivered by hand, sent by post or transmitted electronically to the principal office of the council or the accredited certifier, but may not be sent by facsimile transmission.(2) Immediately after it receives an application for a complying development certificate, the council or accredited certifier must endorse the application with the date of its receipt.(3) In determining whether an alteration, enlargement or extension of a BASIX affected building is BASIX affected development, the certifying authority must make its determination by reference to a genuine estimate of the construction costs of the work, including any part of the work that is BASIX excluded development. The estimate must, unless the certifying authority is satisfied that the estimated cost indicated in the application for a complying development certificate is neither genuine nor accurate, be the estimate so indicated.(4) A single application for a complying development certificate may be made for complying development comprising—(a) the erection of a dual occupancy, manor house or multi dwelling housing (terraces) on a lot and the subsequent subdivision of that lot, or(b) the concurrent erection of any of the following on existing adjoining lots—(i) new single storey or two storey dwelling houses,(ii) dual occupancies,(iii) manor houses,(iv) multi dwelling housing (terraces).cl 126: Am 2006 (600), Sch 1 [8]; 2010 (655), Sch 1 [5]; 2018 (130), Sch 1 [1]; 2018 (230), cl 3 (1).
127 Council or accredited certifier may require additional information
(cf clause 76 of EP&A Regulation 1994)
(1) A council or accredited certifier may require the applicant for a complying development certificate to give the council or accredited certifier any additional information concerning the proposed development that is essential to the council’s or accredited certifier’s proper consideration of the application.(1A) A council or an accredited certifier may require that the additional information under subclause (1) be obtained by or on behalf of the applicant from a properly qualified person.(2) Nothing in this clause affects the council’s or accredited certifier’s duty to determine an application for a complying development certificate.cl 127: Am 2009 (386), Sch 1 [1].
128 Council or accredited certifier to supply application form for complying development certificates
(cf clause 76A of EP&A Regulation 1994)
If the council or accredited certifier requires an application for a complying development certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.
129 (Repealed)
cl 129: Rep 2013 (79), Sch 1 [1].
129A Amendments with respect to BASIX commitments
(1) This clause applies to an application for a complying development certificate that has been accompanied by a BASIX certificate or certificates pursuant to clause 4A of Schedule 1 or to an application for a complying development certificate for BASIX optional development that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 4A of Schedule 1 for it to be so accompanied).(2) An application for a complying development certificate may be amended or varied by the lodging of—(a) a new BASIX certificate to replace a BASIX certificate that accompanied the application, or to replace any subsequent BASIX certificate lodged under this clause, and(b) if any new accompanying document is required or any existing accompanying document requires amendment, a new or amended accompanying document.(3) If an amendment or variation of an application for a complying development certificate, or of any accompanying document, results in the proposed development differing in any material respect from the description contained in a current BASIX certificate for the development, the application to amend or vary the application for the complying development certificate must have annexed to it a replacement BASIX certificate whose description takes account of the amendment or variation.(4) In this clause, a reference to the accompanying document is a reference to any document required to accompany an application for a complying development certificate pursuant to clause 4 of Schedule 1.cl 129A: Ins 25.6.2004. Am 2006 (600), Sch 1 [9] [10].
129AA Restriction on issue of complying development certificate for certain development for the purpose of schools or school-based child care
A certifying authority must not issue a complying development certificate for proposed development for a purpose specified in clause 39(1) (Existing schools—complying development) or 40(2)(e) (School-based child care—complying development) of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 that involves—(a) the construction of a new building with a building height (within the meaning of the Standard Instrument) of more than 12 metres, orunless the certifying authority has been provided with a written statement by a qualified designer that verifies that the development applies the design quality principles set out in Schedule 4 to that Policy.(b) an alteration or addition to an existing building that will result in its building height being more than 12 metres,cl 129AA: Ins 2017 (491), Sch 1 [3].
129AB Restriction on issue of complying development certificate for certain development related to educational establishments
A certifying authority must not issue a complying development certificate for proposed development that is identified as complying development under State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 unless—(a) the relevant roads authority has given its written consent, if required by the Roads Act 1993—(i) for each opening of a public road required by the development, and(ii) to operate or store machinery, materials or waste required by the development on a road or footpath reserve, and(b) if the development involves the alteration or erection of improvements on land in a mine subsidence district within the meaning of the Mine Subsidence Compensation Act 1961, the Mines Subsidence Board has approved of the development in writing.Note—Information about mine subsidence is information that is a prescribed matter for the purpose of a planning certificate under section 10.7(2) of the Act.cl 129AB: Ins 2017 (491), Sch 1 [3]. Am 2018 (66), Sch 2 [22].
129B Restriction on issue of complying development certificate
(1) A certifying authority must not issue a complying development certificate for development unless a council or an accredited certifier has carried out an inspection of the site of the development.(1A) If the development affects an existing building that is a class 1b, 2, 3, 4, 5, 6, 7, 8 or 9 building, an inspection of the site of the development must include an inspection of—(a) the parts of the building affected by the development, and(b) the egress routes from those parts of the building.(2) Subclause (1) does not apply in respect of a complying development certificate that relates only to fire alarm communication link works.cl 129B: Ins 2008 No 36, Sch 4.2 [1]. Am 2013 (705), Sch 1 [10]; 2014 (452), Sch 1 [2].
129C Record of site inspections
(1) A council or accredited certifier must make a record of each inspection carried out by the council or accredited certifier for the purposes of clause 129B.(2) Any council or accredited certifier who is required to make such a record but is not the certifying authority in relation to the issue of the complying development certificate concerned must, within 2 days after the carrying out of the inspection, provide a copy of the record to the certifying authority.(3) The record must include the following—(a) the date of the application for the complying development certificate,(b) the address of the property at which the inspection was carried out,(c) the type of inspection,(d) the date on which the inspection was carried out,(e) if the inspection was carried out by a council, the name of the council and the identity and signature of the individual who carried out the inspection on behalf of the council,(f) if the inspection was carried out by an accredited certifier, the identity of the accredited certifier, including, in a case where the accredited certifier is an accredited body corporate, the identity of the individual who carried out the inspection on behalf of the body corporate,(g) if the inspection was carried out by an accredited certifier, the accreditation number of the accredited certifier, including, in a case where the accredited certifier is an accredited body corporate, the accreditation number of the individual who carried out the inspection on behalf of the body corporate,(h) details of the current fire safety measures in the existing buildings on the site that will be affected by the proposed development concerned,(i) details as to whether or not the plans and specifications accompanying the application for the complying development certificate adequately and accurately depict the existing site conditions,(j) details of any features of the site, or of any building on the site, that would result in the proposed development the subject of the application for the complying development certificate—(i) not being complying development, or(ii) not complying with the Building Code of Australia.cl 129C: Ins 2009 (39), Sch 1 [2].
129D Council to be notified of significant fire safety issues
(1) A certifying authority is required to give written notice to the council in accordance with this clause if—(a) an application has been made to the certifying authority for a complying development certificate affecting an existing building, and(b) the building is a class 1b, 2, 3, 4, 5, 6, 7, 8 or 9 building, and(c) at any time between the application being received and the issue of the complying development certificate, the certifying authority becomes aware (when carrying out an inspection or otherwise) of a significant fire safety issue with any part of the building.(2) The notice—(a) must describe the fire safety issue and the parts of the building affected by the issue, and(b) must be made within 2 days after the certifying authority becomes aware of the fire safety issue.(3) However, the certifying authority is not required to give notice if the fire safety issue is being addressed—(a) by the proposed development, or(b) by a fire safety order, or(c) by some other development consent (including a complying development certificate) that affects the building.(4) To avoid doubt, this clause extends to a council that is a certifying authority.cl 129D: Ins 2014 (452), Sch 1 [3].
Division 2 Determination of applications and commencement of complying development
130AA Time limit for determining application for complying development certificate
For the purposes of section 4.28(8) of the Act, the period prescribed by the regulations is—(a) for development that requires a notice to be given under clause 130AB—20 days, or(b) in any other case—10 days.cl 130AA: Ins 2009 (23), Sch 1 [1]. Subst 2013 (705), Sch 1 [11]. Am 2018 (66), Sch 2 [22].
130AB Requirement to advise of applications for certain complying development certificates
(1) This clause applies to a complying development certificate in relation to any of the following development on land in an applicable local government area, other than on land within a residential release area, if the development is to be carried out on a lot that has a boundary within 20 metres of the boundary of another lot on which a dwelling is located—(a) development specified under any environmental planning instrument that involves any of the following—(i) a new dwelling,(ii) an addition to an existing dwelling,(b) development specified in Part 7 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Demolition Code),(c) development specified in Division 2 or 7 of Part 2 of State Environmental Planning Policy (Affordable Rental Housing) 2009.(2) A certifying authority for an application for a complying development certificate to which this clause applies must not determine the application by issuing a complying development certificate until at least 14 days after the certifying authority has given a notice that complies with this clause to—(a) if the development will be on land in a rural or residential zone—the occupier of each dwelling referred to in subclause (1) that is on land in a rural or residential zone, and(b) if the certifying authority is not the council for the area in which the development is to be carried out—the council.(3) The notice must be in writing and must include the following—(a) the name and contact details of the certifying authority,(b) a statement that the certifying authority has received an application for a complying development certificate and will determine the application in accordance with the Environmental Planning and Assessment Act 1979,(c) the name, address and contact details of the applicant for the complying development certificate,(d) the address of the land on which the development is to be carried out,(e) a description of the development to which the application relates,(f) the date on which the application was received by the certifying authority,(g) a statement that, once the application is determined, the council is required to make a copy of the determination available for inspection.(4) In this clause—applicable local government area means any of the local government areas of Ashfield, City of Auburn, City of Bankstown, City of Blacktown, City of Blue Mountains, City of Botany Bay, Burwood, Camden, City of Campbelltown, Canada Bay, City of Canterbury, City of Fairfield, City of Hawkesbury, City of Holroyd, Hornsby, Hunter’s Hill, City of Hurstville, City of Kogarah, Ku-ring-gai, Lane Cove, Leichhardt, City of Liverpool, Manly, Marrickville, Mosman, North Sydney, City of Parramatta, City of Penrith, Pittwater, City of Randwick, City of Rockdale, City of Ryde, Strathfield, Sutherland Shire, City of Sydney, The Hills Shire, Warringah, Waverley, City of Willoughby, Wingecarribee, Wollondilly or Woollahra.residential release area means any land within—(a) an urban release area identified within a local environmental plan that adopts the applicable mandatory provisions of the Standard Instrument, or(b) a land release area identified under the Eurobodalla Local Environmental Plan 2012, or(c) any land subject to State Environmental Planning Policy (Sydney Region Growth Centres) 2006, or(d) any area included in Parts 6, 26, 27, 28 and 29 of Schedule 3 to State Environmental Planning Policy (Major Development) 2005.cl 130AB: Ins 2013 (705), Sch 1 [11]. Am 2014 (68), Sch 1 [1]; 2015 (655), Sch 1 [1] [2]; 2016 (303), Sch 1 [8].
130 Procedure for determining application for complying development certificate and notification requirements
(cf clause 77 of EP&A Regulation 1994)
(1) A certifying authority must not issue a complying development certificate for building work unless the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the certificate was made).(2) In the case of complying development that is required to comply with the deemed-to-satisfy provisions of Volume One, or Section 3 of Volume Two, of the Building Code of Australia, a complying development certificate cannot authorise compliance with an alternative solution to the performance requirements corresponding to those deemed-to-satisfy provisions.(2A) A certifying authority must not issue a complying development certificate for building work that involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement unless the certifying authority—(a) has obtained or been provided with an alternative solution report that—(i) was prepared by or on behalf of a person with the qualifications required by this clause, and(ii) includes a statement that the alternative solution complies with the relevant performance requirements of the Building Code of Australia, and(iii) where relevant, identifies the deemed-to-satisfy provisions of the Building Code of Australia being varied, and(iv) describes and justifies the alternative solution, including the acceptance criteria and parameters on which the justification is based and any restrictions or conditions of the alternative solution, and(v) includes a copy of the brief on which the justification of the alternative solution was based, and(b) is satisfied that—(i) the report correctly identifies both the performance requirements and the deemed-to-satisfy provisions of the Building Code of Australia, and(ii) the plans show, and the specifications describe, the physical elements of the alternative solution (where they are capable of being shown and described).(2B) Subclause (2A) clause does not apply to building work relating to a class 1a or 10 building, as defined in the Building Code of Australia.(2C), (2D) (Repealed)(2E) A certifying authority must not issue a complying development certificate for proposed development comprising internal alterations to, or a change of use of, an existing building that is subject to an alternative solution relating to a fire safety requirement under the Building Code of Australia unless—(a) the certifying authority has obtained or been provided with a written report by another accredited certifier, who is an accredited certifier for the purpose of issuing a complying development certificate for a building of that kind, and(b) the written report includes a statement that the proposed development is consistent with that alternative solution.(3) Evidence of the issue of a complying development certificate must be endorsed by the council or the accredited certifier on any plans, specifications and any other documents that were lodged with the application for the certificate or submitted to the accredited certifier in accordance with clause 126.(4) For the purposes of section 4.28(11)(b) of the Act, the accredited certifier must cause notice of his or her determination of an application for a complying development certificate to be given to the council by forwarding to it, within 2 days after the date of the determination, copies of—(a) the determination, together with the application to which it relates, and(b) any endorsed plans, specifications or other documents that were lodged with the application or submitted to the accredited certifier in accordance with clause 127, and(c) any complying development certificate issued as a result of the determination, together with any associated fire safety schedule, and(d) the record of any inspection made for the purposes of clause 129B in relation to the issue of the complying development certificate unless the inspection was carried out by the council, and(e) (Repealed)(5) A person has the qualifications required by this clause if—(a) the person is a competent fire safety practitioner who is also a fire safety engineer and the report is about an alternative solution under the Building Code of Australia in respect of the requirements set out in EP1.4, EP2.1, EP2.2, DP4 and DP5 in Volume 1 for—(i) a class 9a building, as defined in the Building Code of Australia, that is proposed to have a total floor area of 2,000 square metres or more, or(ii) any building (other than a class 9a building so defined) that is proposed to have a fire compartment, as defined in the Building Code of Australia, with a total floor area of more than 2,000 square metres, or(iii) any building (other than a class 9a building so defined) that is proposed to have a total floor area of more than 6,000 square metres, or(b) the person is a competent fire safety practitioner, in the case of any other report.(6) (Repealed)cl 130: Am 22.12.2000; 19.7.2002; 2003 No 95, Sch 2.1 [13]; 2007 (19), Sch 1 [2]; 2007 (342), Sch 1 [19]; 2008 (69) Sch 1 [1]; 2008 (506), Sch 1 [2]–[5]; 2009 (23), Sch 1 [2]; 2009 (39), Sch 1 [3]; 2009 (220), Sch 1 [1]; 2009 (386), Sch 1 [2] [3]; 2010 (104), Sch 1 [11] [12]; 2010 (759), Sch 1 [3] [4]; 2013 (705), Sch 1 [12] [13]; 2014 (452), Sch 1 [4]; 2017 (307), Sch 1 [2] [3]; 2018 (66), Sch 2 [22].
130A Copy of particular documents to be given to NSW Rural Fire Service and council
(1) If a certifying authority issues a complying development certificate for development on bush fire prone land, the certifying authority must send a copy of the following to the NSW Rural Fire Service—(a) the complying development certificate, and(b) any associated documentation (including a copy of the application and any certification referred to in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 that is required to carry out the complying development on bush fire prone land).(2) If the certifying authority is not a council, the certifying authority must also send a copy of the documents mentioned in subclause (1) to the council.cl 130A: Ins 2010 (655), Sch 1 [6]. Am 2017 (345), cl 3; 2018 (130), Sch 1 [2]; 2018 No 68, Sch 2.12 [3].
131 Development standards for change of building use
(1) This clause applies to development for which a complying development certificate is sought involving a change of building use of an existing building.(2) The development standards applicable to such development include the following requirements—(a1) that, whether or not any building work is carried out, the building will contain measures that are adequate, in the event of fire, to facilitate the safe egress of persons from the part of the building affected by the change of building use,(a) that, on completion of any building work, the fire protection and structural capacity of the building will be appropriate to the proposed use,assuming that any building work is carried out in accordance with the plans and specifications to which the complying development certificate relates and any conditions to which the complying development certificate is subject.(b) that, whether or not any building work is carried out, the building will comply with such of the Category 1 fire safety provisions as are applicable to the proposed use,cl 131: Am 2007 (496), Sch 1 [14]–[16]; 2009 (511), Sch 1 [14] [15]; 2014 (452), Sch 1 [5].
132 Development standards for building work involving the alteration, enlargement or extension of an existing building
(1) This clause applies to development for which a complying development certificate is sought involving the alteration, enlargement or extension of an existing building, otherwise than in connection with a change of building use of an existing building.(2) The development standards applicable to such development include the requirements that on completion of the building work—(a) if the building work involves the reconfiguration of any internal part of the building (being a part that is to be occupied)—the building will contain measures that are adequate, in the event of fire, to facilitate the safe egress of persons from the reconfigured part of the building, and(b) the fire protection and structural capacity of the building will not be reduced.(3) That requirement assumes that the building work is carried out in accordance with the plans and specifications to which the complying development certificate relates and any conditions to which the complying development certificate is subject.cl 132: Am 2007 (496), Sch 1 [17]; 2009 (511), Sch 1 [16]; 2014 (452), Sch 1 [6].
132A (Repealed)
cl 132A: Ins 2013 (705), Sch 1 [14]. Am 2014 (68), Sch 1 [2]–[7]. Rep 2014 (452), Sch 1 [7].
133 Development standards for erection of temporary structure
(1) This clause applies to development for which a complying development certificate is sought involving the erection of a temporary structure.(2) The development standards applicable to such development include the following requirements—(a) the fire protection and structural capacity of the structure will, when the structure is erected, be appropriate to the proposed use of the structure,(b) the ground or other surface on which the structure is to be erected will be sufficiently firm and level to sustain the structure while in use.cl 133: Renumbered as cl 136A, 2003 No 95, Sch 2.1 [21]. Ins 2007 (496), Sch 1 [18].
134 Form of complying development certificate
(1) A complying development certificate must contain the following—(a) the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,(b) if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate,(b1) if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,(b2) if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate,(c) the date of the certificate,(d) the date on which the certificate lapses,(e) a statement to the effect that the 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 such other requirements prescribed by this regulation concerning the issue of the certificate,(f) if the development involves the erection of a building, the class of the building under the Building Code of Australia,(f1) the following details of any alternative solution report about the building work that is required to be obtained or provided under clause 130(2A)—(i) the title of the report,(ii) the date on which the report was made,(iii) the reference number and version number of the report,(iv) the name of the competent fire safety practitioner who prepared the report or on whose behalf the report was prepared,(v) if the competent fire safety practitioner who prepared the report or on whose behalf the report was prepared is an accredited certifier—the accreditation number of that practitioner,(f2) if any of the building work is exempt from compliance with the Building Code of Australia because of clause 164B—the details of that exemption,(g) any conditions imposed on the development under this Regulation.(1A) A complying development certificate for development that is complying development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 must also specify—(a) the land use zone within which the land is situated, and(b) if the land is not zoned under an environmental planning instrument made as provided by section 3.20(2) of the Act, the equivalent named land use zone applicable to the land for the purposes of that Policy, and(c) if the development is carried out under a complying development code under that Policy, the name of the code.(2) A complying development certificate for the erection of a building must be accompanied by a fire safety schedule for the building (if a fire safety schedule is required under Part 9).(2A) A complying development certificate for any development must include a copy of any relevant plans endorsed by the certifying authority.(3) Subclause (2) does not apply to—(a) a class 1a or class 10 building within the meaning of clause 167, or(b) (Repealed)(c) the erection of a temporary structure.cl 134: Am 19.7.2002; 2003 No 95, Sch 2.1 [14]; 2005 No 115, Sch 3.3 [3]; 2007 (496), Sch 1 [19]; 2008 (467), Sch 1 [13] [14]; 2009 (23), Sch 1 [3]; 2009 (386), Sch 1 [4]; 2013 (705), Sch 1 [15] [16]; 2017 (307), Sch 1 [4]; 2017 (541), cl 3; 2018 (66), Sch 2 [22].
135 Notice under section 86 of the Act of appointment of principal certifying authority
(cf clause 77A of EP&A Regulation 1994)
A notice given under or for the purposes of section 86(1)(a1)(i) or (2)(a1) of the Act must contain the following information—(a) (Repealed)(b) a description of the work to be carried out,(c) the address of the land on which the work is to be carried out,(d) the registered number and date of issue of the relevant complying development certificate,(e) the name and address of the principal certifying authority, and of the person by whom the principal certifying authority was appointed,and, if the consent authority so requires, must be in the form approved by that authority.(f) if the principal certifying authority is an accredited certifier—(i) his or her accreditation number, and(ii) (Repealed)(iii) a statement signed by the accredited certifier to the effect that he or she consents to being appointed as principal certifying authority, and(iv) a telephone number on which he or she may be contacted for business purposes,cl 135: Am 2003 No 95, Sch 2.1 [15]–[18]; 2005 No 115, Sch 3.3 [4].
135A Notice under section 86 of the Act of critical stage inspections
A notice given under section 86(1)(a1)(ii) of the Act must contain the following information—(a) the name and address of the principal certifying authority by whom the notice is given,(b) a telephone number on which the principal certifying authority can be contacted for business purposes,(c) the registered number of the complying development certificate,(d) a description of the work to be carried out,(e) the address of the land at which the work is to be carried out,(f) a list of the critical stage inspections and other inspections required to be carried out in respect of the work.cl 135A: Ins 2003 No 95, Sch 2.1 [19].
136 Notice under section 86 of the Act of intention to commence subdivision work or erection of building
(cf clause 77A of EP&A Regulation 1994)
A notice given under or for the purposes of section 86(1)(b) or (2)(b) of the Act must contain the following information—(a) the name and address of the person by whom the notice is being given,(b) a description of the work to be carried out,(c) the address of the land on which the work is to be carried out,(d) the registered number and date of issue of the relevant complying development certificate,(e) the date on which the work is intended to commence,and, if the consent authority so requires, must be in the form approved by that authority.(f) a statement signed by or on behalf of the principal certifying authority to the effect that all conditions of the relevant complying development certificate that are required to be satisfied before the work commences have been satisfied,cl 136: Am 2013 (705), Sch 1 [17].
Division 2A Conditions of complying development certificate
pt 7, div 2A, hdg: Ins 2003 No 95, Sch 2.1 [20].
136A Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989
(cf clauses 78 and 78A of EP&A Regulation 1994)
(1) A complying development certificate for development that involves any building work must be issued subject to the following conditions—(a) that the work must be carried out in accordance with the requirements of the Building Code of Australia,(b) in the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance must be entered into and be in force before any building work authorised to be carried out by the certificate commences.(1A) A complying development certificate for a temporary structure that is used as an entertainment venue must be issued subject to the condition that the temporary structure must comply with Part B1 and NSW Part H102 of Volume One of the Building Code of Australia (as in force on the date the application for the relevant complying development certificate is made).(2) This clause does not limit any other conditions to which a complying development certificate may be subject, as referred to in section 4.28(6)(a) of the Act.(3) This clause does not apply—(a) to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187(6) or 188(4), or(b) to the erection of a temporary building, other than a temporary structure that is used as an entertainment venue.(4) In this clause, a reference to the Building Code of Australia is a reference to that Code as in force on the date the application for the relevant complying development certificate is made.Note—There are no relevant provisions in the Building Code of Australia in respect of temporary structures that are not entertainment venues.cl 136A (previously cl 133): Renumbered 2003 No 95, Sch 2.1 [21]. Am 2003 No 95, Sch 2.1 [22]; 2009 (511), Sch 1 [17]–[19]; 2018 (66), Sch 2 [22].
136AA Condition relating to fire safety systems in class 2–9 buildings
(1) A complying development certificate for building work involving the installation, extension or modification of any relevant fire safety system in a class 2, 3, 4, 5, 6, 7, 8 or 9 building, as defined in the Building Code of Australia, must be issued subject to the condition required by this clause.(2) The condition required by this clause is that the building work involving the installation, modification or extension of the relevant fire safety system cannot commence unless—(a) plans have been submitted to the principal certifying authority that show—(i) in the case of building work involving the installation of the relevant fire safety system—the layout, extent and location of key components of the relevant fire safety system, or(ii) in the case of building work involving the modification or extension of the relevant fire safety system—the layout, extent and location of any new or modified components of the relevant fire safety system, and(b) specifications have been submitted to the principal certifying authority that—(i) describe the basis for design, installation and construction of the relevant fire safety system, and(ii) identify the provisions of the Building Code of Australia upon which the design of the system is based, and(c) those plans and specifications—(i) have been certified by a compliance certificate referred to in section 6.4(e) of the Act as complying with the relevant provisions of the Building Code of Australia, or(ii) unless they are subject to an exemption under clause 164B, have been endorsed by a competent fire safety practitioner as complying with the relevant provisions of the Building Code of Australia, and(d) if those plans and specifications were submitted before the complying development certificate was issued—each of them was endorsed by the certifying authority with a statement that the certifying authority is satisfied that it correctly identifies both the performance requirements and the deemed-to-satisfy provisions of the Building Code of Australia, and(e) if those plans and specifications were not submitted before the complying development certificate was issued—each of them was endorsed by the principal certifying authority with a statement that the principal certifying authority is satisfied that it correctly identifies both the performance requirements and the deemed-to-satisfy provisions of the Building Code of Australia.(3) In this clause—relevant fire safety system means any of the following—(a) a hydraulic fire safety system within the meaning of clause 165,(b) a fire detection and alarm system,(c) a mechanical ducted smoke control system.cl 136AA: Ins 2017 (307), Sch 1 [5]. Am 2018 (66), Sch 2 [22].
136AB Notice to neighbours
(1) A complying development certificate for development on land that is in a category 1 local government area and that is not in a residential release area and that involves—(a) a new building, or(b) an addition to an existing building, ormust be issued subject to a condition that the person having the benefit of the complying development certificate must give at least 7 days’ notice in writing of the person’s intention to commence the work authorised by the certificate to the occupier of each dwelling that is located on a lot that has a boundary within 20 metres of the boundary of the lot on which the work is to be carried out.(c) the demolition of a building,(2) A complying development certificate for development on land that is in a category 2 local government area or a residential release area and that involves—(a) a new building, or(b) an addition to an existing building, ormust be issued subject to a condition that the person having the benefit of the complying development certificate must give at least 2 days’ notice in writing of the person’s intention to commence the work authorised by the certificate to the occupier of each dwelling that is located on a lot that has a boundary within 20 metres of the boundary of the lot on which the work is to be carried out.(c) the demolition of a building,(3) In this clause—category 1 local government area means any of the local government areas of Ashfield, City of Auburn, City of Bankstown, City of Blacktown, City of Blue Mountains, City of Botany Bay, Burwood, Camden, City of Campbelltown, Canada Bay, City of Canterbury, City of Fairfield, City of Hawkesbury, City of Holroyd, Hornsby, Hunter’s Hill, City of Hurstville, City of Kogarah, Ku-ring-gai, Lane Cove, Leichhardt, City of Liverpool, Manly, Marrickville, Mosman, North Sydney, City of Parramatta, City of Penrith, Pittwater, City of Randwick, City of Rockdale, City of Ryde, Strathfield, Sutherland Shire, City of Sydney, The Hills Shire, Warringah, Waverley, City of Willoughby, Wingecarribee, Wollondilly or Woollahra.category 2 local government area means any local government area that is not a category 1 local government area.residential release area means any land within—(a) an urban release area identified within a local environmental plan that adopts the applicable mandatory provisions of the Standard Instrument, or(b) a land release area identified under the Eurobodalla Local Environmental Plan 2012, or(c) any land subject to State Environmental Planning Policy (Sydney Region Growth Centres) 2006, or(d) any area included in Parts 6, 26, 27, 28 and 29 of Schedule 3 to State Environmental Planning Policy (Major Development) 2005.cl 136AB: Ins 2013 (705), Sch 1 [18]. Am 2015 (655), Sch 1 [3]–[5]; 2016 (303), Sch 1 [8].
136B Erection of signs
(1) A complying development certificate for development that involves any building work, subdivision work or demolition work must be issued subject to a condition that the requirements of subclauses (2) and (3) are complied with.(2) A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out—(a) showing the name, address and telephone number of the principal certifying authority for the work, and(b) showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and(c) stating that unauthorised entry to the site is prohibited.(3) Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.(4) This clause does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building, that does not affect the external walls of the building.(5) This clause does not apply in relation to Crown building work that is certified, in accordance with section 6.28 of the Act, to comply with the technical provisions of the State’s building laws.(6) This clause applies to a complying development certificate issued before 1 July 2004 only if the building work, subdivision work or demolition work involved had not been commenced by that date.Note—Principal certifying authorities and principal contractors must also ensure that signs required by this clause are erected and maintained (see clause 227A which currently imposes a maximum penalty of $1,100).cl 136B: Ins 2003 No 95, Sch 2.1 [23]. Am 27.2.2004; 2009 (269), Sch 1 [11]; 2018 (66), Sch 2 [22].
136C Notification of Home Building Act 1989 requirements
(1) A complying development certificate for development that involves any residential building work within the meaning of the Home Building Act 1989 must be issued subject to a condition that the work is carried out in accordance with the requirements of this clause.(2) Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the following information—(a) in the case of work for which a principal contractor is required to be appointed—(i) the name and licence number of the principal contractor, and(ii) the name of the insurer by which the work is insured under Part 6 of that Act,(b) in the case of work to be done by an owner-builder—(i) the name of the owner-builder, and(ii) if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.(3) If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the updated information.(4) This clause does not apply in relation to Crown building work that is certified, in accordance with section 6.28 of the Act, to comply with the technical provisions of the State’s building laws.cl 136C: Ins 2003 No 95, Sch 2.1 [23]. Am 2009 (269), Sch 1 [12]; 2018 (66), Sch 2 [22].
136D Fulfilment of BASIX commitments
(1) This clause applies to the following development—(a) BASIX affected development,(b) any BASIX optional development in relation to which a person has made an application for a complying development certificate that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 4A of Schedule 1 for it to be so accompanied).(2) A complying development certificate for development to which this clause applies must be issued subject to a condition that the commitments listed in each relevant BASIX certificate for the development must be fulfilled.cl 136D: Ins 25.6.2004. Am 2005 (599), Sch 1 [11]. Subst 2006 (600), Sch 1 [11].
136E Development involving bonded asbestos material and friable asbestos material
(1) A complying development certificate for development that involves building work or demolition work must be issued subject to the following conditions—(a) work involving bonded asbestos removal work (of an area of more than 10 square metres) or friable asbestos removal work must be undertaken by a person who carries on a business of such removal work in accordance with a licence under clause 458 of the Work Health and Safety Regulation 2011,(b) the person having the benefit of the complying development certificate must provide the principal certifying authority with a copy of a signed contract with such a person before any development pursuant to the complying development certificate commences,(c) any such contract must indicate whether any bonded asbestos material or friable asbestos material will be removed, and if so, must specify the landfill site (that may lawfully receive asbestos) to which the bonded asbestos material or friable asbestos material is to be delivered,(d) if the contract indicates that bonded asbestos material or friable asbestos material will be removed to a specified landfill site, the person having the benefit of the complying development certificate must give the principal certifying authority a copy of a receipt from the operator of the landfill site stating that all the asbestos material referred to in the contract has been received by the operator.(2) This clause applies only to a complying development certificate issued after the commencement of this clause.(3) In this clause, bonded asbestos material, bonded asbestos removal work, friable asbestos material and friable asbestos removal work have the same meanings as in clause 317 of the Occupational Health and Safety Regulation 2001.Note 1—Under clause 317 removal work refers to work in which the bonded asbestos material or friable asbestos material is removed, repaired or disturbed.Note 2—The effect of subclause (1)(a) is that the development will be a workplace to which the Occupational Health and Safety Regulation 2001 applies while removal work involving bonded asbestos material or friable asbestos material is being undertaken.Note 3—Information on the removal and disposal of asbestos to landfill sites licensed to accept this waste is available from the Office of Environment and Heritage.Note 4—Demolition undertaken in relation to complying development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 must be carried out in accordance with Australian Standard AS 2601—2001, Demolition of structures.cl 136E: Ins 2007 (496), Sch 1 [20]. Rep 2009 (511), Sch 1 [20]. Ins 2009 (584), Sch 1 [1]. Am 2010 (655), Sch 1 [7]; 2013 No 47, Sch 2.11; 2015 No 15, Sch 3.26 [8].
136F, 136G (Repealed)
cll 136F: Ins 2007 (496), Sch 1 [20]. Rep 2009 (511), Sch 1 [20].
cll 136G: Ins 2007 (496), Sch 1 [20]. Rep 2009 (511), Sch 1 [20].
136H Condition relating to shoring and adequacy of adjoining property
(1) A complying development certificate for development must be issued subject to a condition that if the development involves an excavation that extends below the level of the base of the footings of a building, structure or work (including any structure or work within a road or rail corridor) on adjoining land, the person having the benefit of the certificate must at the person’s own expense—(a) protect and support the building, structure or work from possible damage from the excavation, and(b) where necessary, underpin the building, structure or work to prevent any such damage.(2) The condition referred to in subclause (1) does not apply if the person having the benefit of the complying development certificate owns the adjoining land or the owner of the adjoining land has given consent in writing to that condition not applying.cl 136H: Ins 2009 (39), Sch 1 [4]. Am 2013 (705), Sch 1 [19] [20].
136I Traffic generating development
If an application for a complying development certificate is required to be accompanied by a certificate of Roads and Maritime Services as referred to in clause 4(1)(j1) or (k) of Schedule 1, the complying development certificate must be issued subject to a condition that any requirements specified in the certificate of Roads and Maritime Services must be complied with.cl 136I: Ins 2013 (705), Sch 1 [21]. Am 2017 (491), Sch 1 [4].
136J Development on contaminated land
(1) If an application for a complying development certificate is required to be accompanied by a statement of a qualified person as referred to in clause 4(1)(l) of Schedule 1, the complying development certificate must be issued subject to a condition that any requirements specified in the statement must be complied with.(2) Subclause (1) does not apply to complying development carried out under the complying development provisions of State Environmental Planning Policy (Three Ports) 2013 in the Lease Area within the meaning of clause 4 of that Policy.cl 136J: Ins 2013 (705), Sch 1 [21]. Am 2014 (286) Sch 1 [1].
136K When complying development certificates must be subject to section 4.28(9) condition
(1) This clause applies if a council’s contributions plan provides for the payment of a monetary section 7.11 contribution or section 7.12 levy in relation to development for a particular purpose (whether or not it is classed as complying development under the contributions plan).(2) The certifying authority must issue the relevant complying development certificate authorising development for that purpose subject to a condition requiring payment of such contribution or levy, as required by section 4.28(9) of the Act.(3) Subclause (2) applies despite any provision to the contrary in the council’s contributions plan.cll 136K: Ins 2013 (705), Sch 1 [21]. Am 2018 (66), Sch 2 [22].
136L Contributions and levies payable under section 4.28(9) must be paid before work commences
(1) A complying development certificate issued subject to a condition required by section 4.28(9) of the Act must be issued subject to a condition that the contribution or levy must be paid before any work authorised by the certificate commences.(2) Subclause (1) applies despite any provision to the contrary in the council’s contributions plan.cll 136L: Ins 2013 (705), Sch 1 [21]. Am 2018 (66), Sch 2 [22].
136M Condition relating to payment of security
(1) This clause applies to a complying development certificate authorising the carrying out of development if—(a) the development is demolition of a work or building, erection of a new building or an addition to an existing building and the estimated cost of the development (as specified in the application for the certificate) is $25,000 or more, and(b) the development is to be carried out on land adjacent to a public road, and(c) at the time the application for the certificate is made, there is specified on the website of the council for the area in which the development is to be carried out an amount of security determined by the council that must be paid in relation to—(i) development of the same type or description, or(ii) development carried out in the same circumstances, or(iii) development carried out on land of the same size or description.(2) A complying development certificate to which this clause applies must be issued subject to a condition that the amount of security referred to in subclause (1) is to be provided, in accordance with this clause, to the council before any building work or subdivision work authorised by the certificate commences.(3) The security may be provided, at the applicant’s choice, by way of—(a) deposit with the council, or(b) a guarantee satisfactory to the council.(4) The funds realised from a security may be paid out to meet the cost of making good any damage caused to any property of the council as a consequence of doing anything (or not doing anything) authorised or required by the complying development certificate, including the cost of any inspection to determine whether damage has been caused.(5) Any balance of the funds realised from a security remaining after meeting the costs referred to in subclause (4) is to be refunded to, or at the direction of, the person who provided the security.cl 136M: Ins 2013 (705), Sch 1 [21]. Am 2014 (68), Sch 1 [8].
136N Principal certifying authority to be satisfied that preconditions met before commencement of work
(1) This clause applies to building work or subdivision work that is the subject of a complying development certificate.(2) A principal certifying authority for building work or subdivision work to be carried out on a site, and over which the principal certifying authority has control, is required to be satisfied that any preconditions in relation to the work and required to be met before the work commences have been met before the work commences.cl 136N: Ins 2013 (705), Sch 1 [21].
Division 3 Validity of complying development certificates
137 What are the public notification procedures for the purposes of section 4.59 of the Act?
(cf clause 77B of EP&A Regulation 1994)
(1) The determination of an application for a complying development certificate is publicly notified for the purposes of section 4.59 of the Act—(a) if public notice in a local newspaper is given by the council or an accredited certifier, and(b) if the notice describes the land and the development the subject of the complying development certificate, and(c) if the notice contains a statement that the determination of the application for a complying development certificate is available for public inspection, free of charge, during ordinary office hours at the council’s offices.(2) If the public notification is given by an accredited certifier, the accredited certifier must send a copy of the page of the newspaper in which notice of the complying certificate was published to the council within 7 days after the notice is published.(3) Nothing in this clause confers a right or entitlement to inspect, make copies of or take extracts from so much of a document that, because of section 12(1A) of the Local Government Act 1993, a person does not have the right to inspect.cl 137: Am 2018 (66), Sch 2 [22].
Part 8 Certification of development
Division 1 Compliance certificates
138 Compliance certificate
(cf clause 79 of EP&A Regulation 1994)
(1) A compliance certificate must contain the following—(a) the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,(b) if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate,(b1) if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,(b2) if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate,(c) a description of the development being carried out,(d) the registered number and date of issue of any relevant development consent or complying development certificate,(e) the address, and formal particulars of title, of the land on which the development is being carried out,(f) the date of the certificate,(g) a description of any work that has been inspected, how the work has been inspected and the date and time when the work was inspected,(h) a statement as to the matters in respect of which the certificate is given.Note—Section 109C of the Act identifies the various matters in respect of which a compliance certificate may be given.(2) A compliance certificate must be accompanied by any documents referred to in the certificate, being documents concerning matters in respect of which the certificate is given.(3) A copy of each compliance certificate relied on in issuing an occupation certificate must be forwarded to the consent authority and the council when a certifying authority notifies them of the issue of an occupation certificate.cl 138: Am 2003 No 95, Sch 2.1 [24] [25]; 9.7.2004; 2005 No 115, Sch 3.3 [5]; 2008 (467), Sch 1 [15]–[17].
Division 2 Construction certificates
139 Applications for construction certificates
(cf clause 79A of EP&A Regulation 1994)
(1) An application for a construction certificate—(a) must contain the information, and be accompanied by the documents, specified in Part 3 of Schedule 1, and(b) if the certifying authority so requires, must be in the form approved by that authority, and(c) must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.(1A) The application may only be made by a person who is eligible to appoint a principal certifying authority for the relevant development.(2) Immediately after it receives an application for a construction certificate, the certifying authority must endorse the application with the date of its receipt.cl 139: Am 2008 No 36, Sch 4.2 [2].
139A Withdrawal of application for construction certificate
(1) An application for a construction certificate may be withdrawn at any time prior to its determination by service on the certifying authority to which it was made of a notice to that effect signed by the applicant.(2) The certifying authority may (but is not required to) refund to the applicant the whole or any part of the application fee paid in connection with an application that has been withdrawn.cl 139A: Ins 2003 No 95, Sch 2.1 [26].
140 Certifying authority may require additional information
(cf clause 79B of EP&A Regulation 1994)
(1) A certifying authority may require the applicant for a construction certificate to give the certifying authority any additional information concerning the proposed building or subdivision work or a planning agreement that is essential to the certifying authority’s proper consideration of the application.(2) Nothing in this clause affects the certifying authority’s duty to determine an application for a construction certificate.(3) A planning authority that is a party to a planning agreement may, at the request of an applicant for a construction certificate that is made for the purposes of obtaining information required under this clause, certify that specified requirements of the agreement have been complied with.cl 140: Am 2011 (64), Sch 1 [4] [5].
141 Certifying authority to supply application form for construction certificates
(cf clause 79C of EP&A Regulation 1994)
If a certifying authority requires an application for a construction certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.
142 Procedure for determining application for construction certificate
(cf clause 79D of EP&A Regulation 1994)
(1) The determination of an application for a construction certificate must be in writing and must contain the following information—(a) the date on which the application was determined,(b) whether the application has been determined—(i) by approval, or(ii) by refusal, and(c) if the application has been determined by refusal—(i) the reasons for the refusal, and(ii) if the certifying authority is a consent authority, of the applicant’s right of appeal under the Act against the refusal,(d) if a construction certificate has been issued subject to conditions of the kind referred to in clause 187 or 188—(i) the reasons for the conditions, and(ii) if the certifying authority is a consent authority, of the applicant’s right of appeal under the Act against any such conditions.(2) The certifying authority must cause notice of its determination to be given to the consent authority, and to the council, by forwarding to it, within 2 days after the date of the determination, copies of—(a) the determination, together with the application to which it relates, and(b) any construction certificate issued as a result of the determination, and(c) any plans and specifications in relation to which such a construction certificate has been issued, and(d) any fire safety schedule attached to such a construction certificate, and(e) any other documents that were lodged with the application for the certificate (such as any relevant decision on an objection under clause 187 or 188) or given to the certifying authority under clause 140, and(f) the record of any inspection made for the purposes of clause 143B in relation to the issue of the construction certificate.Note—See also clause 168 which requires a fire safety schedule to be attached to a construction certificate when it is issued.(2A) A copy of a record of inspection referred to in subclause (2)(f) need not be given to a consent authority or council that carried out the inspection.(3) In this Part, a reference to the issuing of a construction certificate includes a reference to the endorsement of the construction certificate on any relevant plans and specifications, as referred to in section 109C(1)(b) of the Act.cl 142: Am 19.7.2002; 2003 No 95, Sch 2.1 [27]; 2009 (39), Sch 1 [5] [6]; 2013 (705), Sch 1 [22].
143 Fire protection and structural capacity
(cf clause 79E of EP&A Regulation 1994)
(1) A certifying authority must not issue a construction certificate for building work under a development consent that authorises a change of building use unless—(a) the fire protection and structural capacity of the building will be appropriate to its new use, andassuming that the building work is carried out in accordance with the plans and specifications to which the construction certificate relates and any conditions to which the construction certificate is subject.(b) the building will comply with such of the Category 1 fire safety provisions as are applicable to the new use,(2) Subclause (1)(b) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187(6) or 188(4).(3) In the case of building work that involves the alteration, enlargement or extension of an existing building in circumstances in which no change of building use is proposed, a certifying authority must not issue a construction certificate for the work unless, on completion of the building work, the fire protection and structural capacity of the building will not be reduced, assuming that the building work is carried out in accordance with the plans and specifications to which the construction certificate relates and any conditions to which the construction certificate is subject.(4) This clause does not apply to building work required by a consent authority as a condition of a development consent that authorises a change of building use.cl 143: Am 2007 (342), Sch 1 [20].
143A Special requirements for construction certificates for residential apartment development
(1) This clause applies to residential apartment development for which the development application was required to be accompanied by a statement by a qualified designer under clause 50(1A).(2) A certifying authority must not issue a construction certificate for the development unless the certifying authority has received the statement by the qualified designer verifying that the plans and specifications achieve or improve the design quality of the development for which development consent was granted, having regard to the design quality principles.(3) If the development application referred to in subclause (1) was also required to be accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in subclause (2) need not be verified to the extent to which they aim—(a) to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or(b) to improve the thermal performance of the building.cl 143A: Ins 26.7.2002. Am 2005 (599), Sch 1 [12]. Subst 2015 (315), Sch 1 [7].
143B Restriction on issue of certain construction certificates without inspection
(1) A certifying authority must not issue a construction certificate for development on a site which affects an existing building unless a council, a consent authority or an accredited certifier has carried out an inspection of the building.(2) If the development affects an existing building that is a class 1b, 2, 3, 4, 5, 6, 7, 8 or 9 building, an inspection of the site of the development must include an inspection of—(a) the parts of the building affected by the development, and(b) the egress routes from those parts of the building.cl 143B: Ins 2008 No 36, Sch 4.2 [3]. Am 2014 (452), Sch 1 [8].
143C Record of site inspections
(1) A council, consent authority or accredited certifier must make a record of each inspection carried out by the council, consent authority or accredited certifier for the purposes of clause 143B.(2) Any council, consent authority or accredited certifier who is required to make such a record but is not the certifying authority in relation to the issue of the construction certificate concerned must, within 2 days after the carrying out of the inspection, provide a copy of the record to the certifying authority.(3) The record must include the following—(a) the registered number of the relevant development application,(b) the address of the property at which the inspection was carried out,(c) the type of inspection,(d) the date on which the inspection was carried out,(e) if the inspection was carried out by a council, the name of the council and the identity and signature of the individual who carried out the inspection on behalf of the council,(f) if the inspection was carried out by an accredited certifier, the identity of the accredited certifier, including, in a case where the accredited certifier is an accredited body corporate, the identity of the individual who carried out the inspection on behalf of the body corporate,(g) if the inspection was carried out by an accredited certifier, the accreditation number of the accredited certifier, including, in a case where the accredited certifier is an accredited body corporate, the accreditation number of the individual who carried out the inspection on behalf of the body corporate,(h) details of the current fire safety measures in the existing building the subject of the inspection,(i) details as to whether or not the plans and specifications accompanying the application for the construction certificate adequately and accurately depict the condition of the existing building the subject of the inspection,(j) details as to whether or not any building or subdivision work authorised by the relevant development consent has commenced on the site.cl 143C: Ins 2009 (39), Sch 1 [7].
144 Referral of certain plans and specifications to New South Wales Fire Brigades
(cf clause 79F of EP&A Regulation 1994)
(1) This clause applies to the following buildings, or parts of buildings, that are the subject of an application for erection, rebuilding, alteration, enlargement or extension—(a) a class 9a building that is proposed to have a total floor area of 2,000 square metres or more, where the plans and specifications for the work provide for an alternative solution to meet the performance requirements contained in any one or more of the Category 2 fire safety provisions,(b) a building (other than a class 9a building) that is proposed to have a fire compartment with a total floor area of more than 2,000 square metres, where the plans and specifications for the work provide for an alternative solution to meet the performance requirements contained in any one or more of the Category 2 fire safety provisions,(c) a building (other than a class 9a building) that is proposed to have a total floor area of more than 6,000 square metres, where the plans and specifications for the work provide for an alternative solution to meet the performance requirements contained in any one or more of the Category 2 fire safety provisions,(d) a class 2, class 3 or class 9 building of 2 or more storeys, or the class 4 part of any class 9 building of 2 or more storeys, where—(i) the plans and specifications for the work provide for an alternative solution to meet performance requirement CP2 in Volume 1 of the Building Code of Australia, to the extent that it relates to external combustible cladding, and(ii) the alternative solution does not apply the verification method CV3 in Volume 1 of the Building Code of Australia in its entirety,(e) a class 5, class 6, class 7 or class 8 building of 3 or more storeys, or the class 4 part of any class 5, class 6, class 7 or class 8 building of 3 or more storeys, where—(i) the plans and specifications for the work provide for an alternative solution to meet performance requirement CP2 in Volume 1 of the Building Code of Australia, to the extent that it relates to external combustible cladding, and(ii) the alternative solution does not apply the verification method CV3 in Volume 1 of the Building Code of Australia in its entirety.(2) Within 7 days after receiving an application for a construction certificate for a building to which this clause applies, the certifying authority must forward to the Fire Commissioner—(a) a copy of the application, and(b) a copy of the plans and specifications for the building, and(c) details of the performance requirements that the alternative solution is intended to meet, andwhich may be delivered by hand, forwarded by post or transmitted electronically, but may not be sent by facsimile transmission.(d) details of the assessment methods to be used to establish compliance with those performance requirements,(3) The Fire Commissioner must notify the certifying authority of the date of receipt of documents under subclause (2) (the document receipt date) within 2 days after receiving those documents and must, within 10 days after receiving those documents, notify the certifying authority whether or not an initial fire safety report for the building will be provided.(4) The Fire Commissioner may provide the certifying authority with an initial fire safety report for the building, but only if notice has been given to the certifying authority in accordance with subclause (3) that an initial fire safety report will be provided.(5) An initial fire safety report may recommend conditions to be imposed on the erection, rebuilding, alteration, enlargement or extension of the building to which the report relates.(6) The certifying authority must not issue a construction certificate for a building to which this clause applies unless it has taken into consideration an initial fire safety report for the building issued in accordance with this clause.(6A) The certifying authority may issue a construction certificate without taking an initial fire safety report into consideration if—(a) the Fire Commissioner has notified the certifying authority in accordance with subclause (3) that an initial fire safety report will not be provided, or(b) the Fire Commissioner has failed to notify the certifying authority within 10 days after the document receipt date whether or not an initial fire safety report will be provided, or(c) the Fire Commissioner has given notice in accordance with subclause (3) that an initial fire safety report will be provided, but such a report is not provided within 28 days after the document receipt date.(6B) If the certifying authority does not adopt any recommendation in an initial fire safety report that it is required to take into consideration because the certifying authority does not agree with the recommendation, the certifying authority must cause written notice to be given to the Fire Commissioner of the fact that it has not adopted the recommendation and of the reasons why it has not adopted the recommendation.(6C) If the Fire Commissioner has notified the certifying authority within 10 days after the document receipt date that an initial fire safety report will be provided but has failed to provide the report within 28 days after the document receipt date, the certifying authority must notify the Fire Commissioner in writing if a construction certificate is issued.(7) If the certifying authority adopts any condition recommended by an initial fire safety report—(a) it must ensure that the terms of the recommended condition have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or(b) it must attach to the construction certificate a condition in the same terms as those of the recommended condition, in the case of a condition whose terms are not capable of being so included.(8) Compliance with the requirement that the terms of a recommended condition be included in the plans and specifications for building work is sufficiently complied with—(a) if the plans and specifications are redrawn so as to accord with those terms, or(b) if those terms are included by way of an annotation (whether by way of insertion, deletion or alteration) marked on the relevant part of those plans and specifications.(8A) An application for a construction certificate made, but not finally determined, before the substitution of subclause (1) by the Environmental Planning and Assessment Amendment (Identification of Buildings with External Combustible Cladding) Regulation 2018 is to be dealt with as if that subclause had not been substituted.(9) In this clause—initial fire safety report means a written report specifying whether or not the Fire Commissioner is satisfied, on the basis of the documents referred to in subclause (2)—(a) that the alternative solution will meet such of the performance requirements as it is intended to meet, and(b) that the fire hydrants in the proposed fire hydrant system will be accessible for use by Fire and Rescue NSW, and(c) that the couplings in the system will be compatible with those of the fire appliances and equipment used by Fire and Rescue NSW.cl 144: Am 2009 (39), Sch 1 [8]; 2015 (583), Sch 1 [3] [4]; 2018 (499), Sch 1 [2] [3].
144A Alternative solution report required for certain fire safety aspects of building work
(1) A certifying authority must not issue a construction certificate for building work that involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement unless the certifying authority—(a) has obtained or been provided with an alternative solution report that—(i) was prepared by or on behalf of a person with the qualifications required by this clause, and(ii) includes a statement that the alternative solution complies with the relevant performance requirements of the Building Code of Australia, and(iii) where relevant, identifies the deemed-to-satisfy provisions of the Building Code of Australia being varied, and(iv) describes and justifies the alternative solution, including the acceptance criteria and parameters on which the justification is based and any restrictions or conditions on the alternative solution, and(v) includes a copy of the brief on which the justification of the alternative solution is based, and(b) is satisfied that—(i) the report correctly identifies both the performance requirements and the deemed-to-satisfy provisions of the Building Code of Australia, and(ii) the plans show, and the specifications describe, the physical elements of the alternative solution (where they are capable of being shown and described).(2) This clause does not apply to building work relating to a class 1a or 10 building, as defined in the Building Code of Australia.(3) A person has the qualifications required by this clause if—(a) the person is a competent fire safety practitioner who is also a fire safety engineer and the report is about an alternative solution under the Building Code of Australia in respect of the requirements set out in EP1.4, EP2.1, EP2.2, DP4 and DP5 in Volume 1 for—(i) a class 9a building, as defined in the Building Code of Australia, that is proposed to have a total floor area of 2,000 square metres or more, or(ii) any building (other than a class 9a building so defined) that is proposed to have a fire compartment, as defined in the Building Code of Australia, with a total floor area of more than 2,000 square metres, or(iii) any building (other than a class 9a building so defined) that is proposed to have a total floor area of more than 6,000 square metres, or(b) the person is a competent fire safety practitioner, in the case of any other report.cl 144A: Ins 2007 (19), Sch 1 [3]. Am 2008 (69) Sch 1 [2]; 2008 (506), Sch 1 [3] [4] [6] [7]; 2010 (104), Sch 1 [13] [14]; 2010 (759), Sch 1 [5] [6]. Subst 2017 (307), Sch 1 [6].
145 Compliance with development consent and Building Code of Australia
(cf clause 79G of EP&A Regulation 1994)
(1) A certifying authority must not issue a construction certificate for building work unless—(a1) the plans and specifications for the building include such matters as each relevant BASIX certificate requires, and(a) the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent, and(b) the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made).(2) A certifying authority must not issue a construction certificate for subdivision work unless the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent.(3) Subclause (1)(b) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187(6) or 188(4).cl 145: Am 25.6.2004; 2005 (599), Sch 1 [13]; 2006 (600), Sch 1 [12]; 2007 (342), Sch 1 [21]–[25].
146 Compliance with conditions of development consent
(cf clause 79H of EP&A Regulation 1994)
A certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless each of the following have been complied with—(a) each condition or agreement requiring the provision of security before work is carried out in accordance with the consent (as referred to in section 4.17(6) of the Act),(b) each condition requiring the payment of a monetary contribution or levy before work is carried out in accordance with the consent (as referred to in section 7.11 or 7.12 of the Act),(c) each other condition of the development consent that must be complied with before a construction certificate may be issued in relation to the building work or subdivision work.cl 146: Am 2005 (339), Sch 1 [16]; 2007 (342), Sch 1 [26]; 2018 (500), Sch 2 [40] [41].
146A Restriction on issue of construction certificates without compliance with planning agreement
If a planning agreement specifies requirements of the agreement that are required to be complied with before a construction certificate for building work or subdivision work is issued, a certifying authority must not issue a construction certificate for the work unless the authority is satisfied that those requirements have been complied with.cl 146A: Ins 2011 (64), Sch 1 [6].
146B Condition relating to fire safety systems in class 2–9 buildings
(1) A construction certificate for building work involving the installation, extension or modification of any relevant fire safety system in a class 2, 3, 4, 5, 6, 7, 8 or 9 building, as defined in the Building Code of Australia, must be issued subject to the conditions required by this clause.(2) The condition required by this clause is that the building work involving the installation, modification or extension of the relevant fire safety system cannot commence unless—(a) plans have been submitted to the principal certifying authority that show—(i) in the case of building work involving the installation of the relevant fire safety system—the layout, extent and location of key components of the relevant fire safety system, or(ii) in the case of building work involving the modification or extension of the relevant fire safety system—the layout, extent and location of any new or modified components of the relevant fire safety system, and(b) specifications have been submitted to the principal certifying authority that—(i) describe the basis for design, installation and construction of the relevant fire safety system, and(ii) identify the provisions of the Building Code of Australia upon which the design of the system is based, and(c) those plans and specifications—(i) have been certified by a compliance certificate referred to in section 109C(1)(a) of the Act as complying with the relevant provisions of the Building Code of Australia, or(ii) unless they are subject to an exemption under clause 164B, have been endorsed by a competent fire safety practitioner as complying with the relevant provisions of the Building Code of Australia, and(d) if those plans and specifications were submitted before the construction certificate was issued—each of them was endorsed by the certifying authority with a statement that the certifying authority is satisfied that it correctly identifies both the performance requirements and the deemed-to-satisfy provisions of the Building Code of Australia, and(e) if those plans and specifications were not submitted before the construction certificate was issued—each of them was endorsed by the principal certifying authority with a statement that the principal certifying authority is satisfied that it correctly identifies both the performance requirements and the deemed-to-satisfy provisions of the Building Code of Australia.(3) In this clause—relevant fire safety system means any of the following—(a) a hydraulic fire safety system within the meaning of clause 165,(b) a fire detection and alarm system,(c) a mechanical ducted smoke control system.cl 146B: Ins 2017 (307), Sch 1 [7]. Am 2018 (500), Sch 2 [42].
147 Form of construction certificate
(cf clause 79I of EP&A Regulation 1994)
(1) A construction certificate must contain the following—(a) the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,(b) if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate,(b1) if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,(b2) if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate,(c) the registered number and date of issue of any relevant development consent,(d) the date of the certificate,(e) a statement to the effect that work completed in accordance with documentation accompanying the application for the certificate (with such modifications verified by the certifying authority as may be shown on that documentation) will comply with the requirements of this Regulation as are referred to in section 81A(5) of the Act,(f) the classification (in accordance with the Building Code of Australia) of the building to which the certificate relates.(g) the following details of any alternative solution report about the building work that is required to be obtained or provided under clause 144A(1)—(i) the title of the report,(ii) the date on which the report was made,(iii) the reference number and version number of the report,(iv) the name of the competent fire safety practitioner who prepared the report or on whose behalf the report was prepared,(v) if the competent fire safety practitioner who prepared the report or on whose behalf the report was prepared is an accredited certifier—the accreditation number of that practitioner,(h) if any of the building work is exempt from compliance with the Building Code of Australia because of clause 164B—the details of that exemption.(1A) A construction certificate may indicate different classifications for different parts of the same building.(2) A construction certificate for a building must be accompanied by a fire safety schedule for the building (if a fire safety schedule is required under Part 9). If any of the building work is exempt from compliance with the Building Code of Australia because of clause 164B, that fire safety schedule must include details of that exemption.(3) Subclause (2) does not apply to a class 1a or class 10 building within the meaning of clause 167.cl 147: Am 22.12.2000; 19.7.2002; 2003 No 95, Sch 2.1 [28] [29]; 2005 No 115, Sch 3.3 [6]; 2008 (467), Sch 1 [18] [19]; 2013 (705), Sch 1 [23] [24]; 2017 (307), Sch 1 [8] [9].
148 Modification of construction certificate
(cf clause 79IA of EP&A Regulation 1994)
(1) A person who has made an application for a construction certificate and a person having the benefit of a construction 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.(3) As soon as practicable after granting an application to modify development in respect of which an application for a construction certificate has previously been referred to the Fire Commissioner under clause 144, but for which (in its modified form) an application for a construction certificate for a building would no longer be required to be so referred, a certifying authority must notify the Fire Commissioner that the building to which the construction certificate relates is no longer a building to which clause 144 applies.cl 148: Am 2003 No 95, Sch 2.1 [30].
Division 3 Occupation certificates
149 Applications for occupation certificates
(cf clause 79J of EP&A Regulation 1994)
(1) An application for an occupation certificate must contain the following information—(a) the name and address of the applicant,(b) a description of the building to which the application relates, including the existing and new classifications of the building under the Building Code of Australia, as identified by the development consent,(c) the address, and formal particulars of title, of the land on which the building to which the application relates is situated,(d) the type of occupation certificate applied for (that is, interim or final),and, if the certifying authority so requires, must be in the form approved by that authority.(e) a list of the documents accompanying the application,(2) The application must be accompanied by the following documents—(a) a copy of the relevant development consent or complying development certificate,(b) a copy of any relevant construction certificate,(c) a copy of any relevant fire safety certificate,(d) a copy of any relevant compliance certificate.(2A) In the case of an application with respect to development the subject of a condition requiring commitments listed in a BASIX certificate or in BASIX certificates to be fulfilled, the application must also be accompanied by a copy of each relevant BASIX certificate for the development.(2B) The application may only be made by a person who is eligible to appoint a principal certifying authority for the relevant development.(3) The application must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.(4) Immediately after it receives an application for an occupation certificate, the certifying authority must endorse the application with the date of its receipt.cl 149: Am 25.6.2004; 2005 (599), Sch 1 [14]; 2006 (600), Sch 1 [13] [14]; 2008 No 36, Sch 4.2 [5].
149A Certifying authority may require additional information
(1) A certifying authority may require the applicant for an occupation certificate to give the certifying authority any additional information concerning the building to which the application relates (including any work that may have been carried out on the building) or a planning agreement that is essential to the authority’s proper consideration of the application.(2) Nothing in this clause affects the certifying authority’s duty to determine an application for an occupation certificate.(3) A planning authority that is a party to a planning agreement may, at the request of an applicant for an occupation certificate that is made for the purposes of obtaining information required under this clause, certify that specified requirements of the agreement have been complied with.cl 149A: Ins 2011 (64), Sch 1 [7]. Am 2011 (510), Sch 2 [40].
150 Certifying authorities to supply application form for occupation certificates
(cf clause 79K of EP&A Regulation 1994)
If a certifying authority requires an application for an occupation certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.
151 Procedure for determining application for occupation certificate
(cf clause 79L of EP&A Regulation 1994)
(1) The determination of an application for an occupation certificate must be in writing and must contain the following information—(a) the date on which the application was determined, and(b) whether the application has been determined—(i) by approval, or(ii) by refusal, and(c) if the application has been determined by refusal—(i) the reasons for the refusal, and(ii) if the certifying authority is a consent authority and the application relates to a final occupation certificate, of the applicant’s right of appeal under the Act against the refusal.(2) The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 2 days after the date of the determination—(a) a copy of the determination,(b) copies of any documents that were lodged with the application for the certificate,(c) if an occupation certificate was issued, a copy of the certificate,(d) a copy of the record required to be made of each of the following—(i) all critical stage inspections and any other inspections carried out because they were required by the principal certifying authority under section 109E(3)(d) of the Act,(ii) any inspection carried out under clause 162A(4A)(a),(iii) any missed inspection to which clause 162C applies,(e) a copy of any compliance certificate and of any other documentary evidence, whether or not of a kind referred to in Part A2, clause A2.2, of the Building Code of Australia, relied on in issuing the occupation certificate.cl 151: Am 2003 No 95, Sch 2.1 [31]; 9.7.2004.
152 Reports of Fire Commissioner: section 109H
(cf clause 79M of EP&A Regulation 1994)
(1) This clause applies to a building to which clause 144 applies.(2) Unless it has already refused such an application, a certifying authority must request the Fire Commissioner to furnish it with a final fire safety report for a building as soon as practicable after receiving an application for an occupation certificate for the building.(3) If it refuses the application after making such a request but before receiving a final fire safety report, the certifying authority must cause notice of the refusal to be given to the Fire Commissioner.(4) If a request has been made to the Fire Commissioner under this clause and no notice of the refusal of the application has been received by him or her, the Fire Commissioner may furnish the certifying authority with a final fire safety report for the building.(5) The certifying authority must not issue an occupation certificate for the building unless it has taken into consideration any final fire safety report for the building that has been furnished to it within 10 days after the Fire Commissioner receives the request for the report.(5A) If the Fire Commissioner furnished a report for a building under clause 152A, the Fire Commissioner is not required to also prepare a separate report under this clause.(6) In this clause—final fire safety report for a building means a written report specifying whether or not the Fire Commissioner is satisfied—(a) that the building work complies with any alternative solution in respect of a Category 2 fire safety provision that was the subject of the construction certificate, and(b) that all of the fire hydrants in the fire hydrant system will be accessible for use by Fire and Rescue NSW, and(c) that all of the couplings in the fire hydrant system will be compatible with those of the fire appliances and equipment used by Fire and Rescue NSW.cl 152: Am 2015 (583), Sch 1 [5]–[7]; 2017 (307), Sch 1 [10] [11].
152A Reports of the Fire Commissioner for class 2 or 3 buildings containing certain fire safety systems: section 109H
(1) A certifying authority must request the Fire Commissioner to furnish it with a fire safety system report as soon as practicable after receiving any application for an occupation certificate for a class 2 or 3 building for building work, as defined in the Building Code of Australia, that involved installing, extending or modifying a relevant fire safety system in the building.(2) The certifying authority is not required to make such a request—(a) if it has already refused such an application, or(b) if clause 144 applies to the building work and the Fire Commissioner has furnished a report for the building under clause 152.(3) If the certifying authority refuses the application after making such a request but before receiving a fire safety system report, the certifying authority must cause notice of the refusal to be given to the Fire Commissioner.(4) If a request has been made to the Fire Commissioner under this clause and no notice of the refusal of the application has been received from the certifying authority, the Fire Commissioner may furnish the certifying authority with a fire safety system report for the building.(5) The certifying authority must not issue an occupation certificate for the building unless it has taken into consideration any fire safety system report for the building that has been furnished to it within 10 days after the Fire Commissioner receives the request for the report.(6) A fire safety system report must be in writing and must specify whether or not the Fire Commissioner is satisfied that the relevant fire safety system is capable of performing to at least the standard in the current fire safety schedule for the building.(7) In this clause—relevant fire safety system means any of the following—(a) a hydraulic fire safety system within the meaning of clause 165,(b) a fire detection and alarm system,(c) a mechanical ducted smoke control system.cll 152A: Ins 2017 (307), Sch 1 [12].
152B Alternative solution report must be considered before issuing occupation certificate
A certifying authority must not issue an occupation certificate for a building for which building work that involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement that was carried out unless—(a) the certifying authority is satisfied that the relevant building work was constructed or installed in accordance with the alternative solution report that accompanied the complying development certificate or construction certificate, if such a certificate was required by clause 130 or 144A, and(b) if a fire safety engineer was required by clause 130 or 144A to be involved in the preparation of the alternative solution report—the certifying authority has obtained a compliance certificate or written report prepared by a fire safety engineer that includes a statement that the building work relating to the alternative solution that was the subject of the first certificate or report has been completed and is consistent with that alternative solution.cll 152B: Ins 2017 (307), Sch 1 [12].
153 Fire safety certificates: section 109H
(cf clause 79N of EP&A Regulation 1994)
(1) For the purposes of section 109H(5)(d) and (6)(c) of the Act, a final occupation certificate authorising a person—(a) to commence occupation or use of a new building, ormust not be issued unless a final fire safety certificate has been issued for the building (if a fire safety schedule is required under Part 9).(b) to commence a change of use for an existing building,(1A) (Repealed)(1B) If the need for the final occupation certificate arises solely from the installation of a fire sprinkler system that is required to be installed under Division 7B of Part 9 of this Regulation, the final fire safety certificate referred to in subclause (1) need only deal with the new fire sprinkler system.(2) For the purposes of section 109H(3)(d) and (4)(c) of the Act, an interim occupation certificate authorising a person—(a) to commence occupation or use of a partially completed new building, ormust not be issued unless a final fire safety certificate or an interim fire safety certificate has been issued for the relevant part of the building.(b) to commence a change of use for part of an existing building,(3) This clause does not apply to a class 1a or class 10 building within the meaning of clause 167 or to a temporary structure.(4) In this clause—interim fire safety certificate has the same meaning as it has in Part 9.final fire safety certificate has the same meaning as it has in Part 9.new building has the same meaning as it has in section 109H of the Act.cl 153: Am 19.7.2002; 2007 (342), Sch 1 [27] [28]; 2007 (496), Sch 1 [21]; 2012 (668), Sch 1 [2]; 2013 (705), Sch 1 [25] [26].
153A (Repealed)
cl 153A: Ins 2007 (19), Sch 1 [4]. Subst 2008 (506), Sch 1 [8]. Rep 2017 (307), Sch 1 [13].
154 Health, safety, compliance with development consent and other issues: section 109H
(cf clause 79O of EP&A Regulation 1994)
(1) For the purposes of section 109H(3)(d) and (4)(c) of the Act, an interim occupation certificate authorising a person—(a) to commence occupation or use of a partially completed new building, ormust not be issued unless the building will not constitute a hazard to the health or safety of the occupants of the building.(b) to commence a change of building for use for part of an existing building,(1A) For the purposes of section 109H(5)(d) of the Act, a final occupation certificate authorising a person to commence occupation or use of a temporary structure as an entertainment venue must not be issued unless—(a) the certifying authority has inspected the temporary structure, and(b) the temporary structure is suitable for its proposed use as an entertainment venue, including for the number of persons proposed to occupy or use the temporary structure.(1B) An occupation certificate authorising a person to commence occupation or use of a new building, or a partially completed new building, must not be issued unless the design and construction of the new building, or any part of the new building that is completed, are not inconsistent with the development consent in force with respect to the new building. This subclause applies only if the development consent (excluding any construction certificate forming part of the consent) was issued on or after 1 March 2013.Note—A complying development certificate is a form of development consent.(2) In this clause—new building has the same meaning as it has in section 109H of the Act.cl 154: Am 2007 (342), Sch 1 [29]; 2007 (496), Sch 1 [22] [23]; 2009 (511), Sch 1 [21] [22]; 2013 (79), Sch 1 [2].
154A Special requirements for occupation certificates for residential apartment development
(1) This clause applies to residential apartment development for which the development application was required to be accompanied by a statement by a qualified designer under clause 50(1A).(2) A certifying authority must not issue an occupation certificate to authorise a person to commence occupation or use of the development unless the certifying authority has received the statement by the qualified designer verifying that the development achieves the design quality of the development as shown in the plans and specifications in respect of which the construction certificate was issued, having regard to the design quality principles.(3) If the development application referred to in subclause (1) was also required to be accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in subclause (2) need not be verified to the extent to which they aim—(a) to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or(b) to improve the thermal performance of the building.cl 154A: Ins 26.7.2002. Am 2005 (599), Sch 1 [15]. Subst 2015 (315), Sch 1 [8].
154B Fulfilment of BASIX commitments
(1) This clause applies to BASIX affected development in respect of which, and BASIX optional development in respect of which, a relevant BASIX certificate requires a certifying authority to monitor fulfilment of any of the commitments listed in the certificate.(2) A certifying authority must not issue an occupation certificate (whether interim or final) for any building resulting from, or any building that becomes a BASIX affected building because of, BASIX affected development or BASIX optional development to which this clause applies, or for any part of such a building, unless each of the commitments whose fulfilment it is required to monitor in relation to the building or part has been fulfilled.(3) For the purpose of satisfying itself as to the fulfilment of any such commitment, a certifying authority may rely on the advice of any properly qualified person.cl 154B: Ins 25.6.2004. Am 2005 (599), Sch 1 [16]; 2006 (600), Sch 1 [15] [16]; 2007 (342), Sch 1 [30].
154C BASIX completion receipt
(1A) This clause applies to BASIX affected development in respect of which one or more relevant BASIX certificates require a certifying authority to monitor fulfilment of any of the commitments listed in the certificate.(1) Before issuing a final occupation certificate for a building the subject of development to which this clause applies, or for part of such a building, the certifying authority must apply to the Planning Secretary for a BASIX completion receipt with respect to that building or part.(2) An application for a BASIX completion receipt must be made in the manner notified in writing to certifying authorities by the Planning Secretary and must contain the following information—(a) the number of each relevant BASIX certificate for the building or part of a building,(b) the postcode of the address of the building,(c) the date of the final inspection,(d) such other information (if any) as the Planning Secretary may determine and is notified in writing to certifying authorities.(3) The Planning Secretary may issue a BASIX completion receipt—(a) by means of a computerised system, as approved from time to time by the Planning Secretary, being a system to which certifying authorities are given on-line access, whether over the internet or otherwise, or(b) by such other means as the Planning Secretary may approve from time to time.(4) A BASIX completion receipt is to confirm that the information required to be provided by a certifying authority under this clause has been provided.(5) A BASIX completion receipt is to be in such form, and contain such other information, as the Planning Secretary may approve from time to time.cl 154C: Ins 2006 (362), Sch 1 [1]. Am 2006 (600), Sch 1 [17]–[19]; 2010 (759), Sch 1 [7]–[9].
154D Lighting affecting observing conditions at Siding Spring Observatory
(1) For the purposes of section 109H of the Act, a certifying authority for complying development must not issue an occupation certificate (whether interim or final) for a dwelling house, dual occupancy or secondary dwelling on land in the local government area of—(a) Coonamble, City of Dubbo, Gilgandra or Warrumbungle Shire, if any dwelling in the dwelling house, dual occupancy or secondary dwelling has an outside light fitting other than a shielded light fitting, or(b) Coonamble, Gilgandra or Warrumbungle Shire, if any dwelling in the dwelling house, dual occupancy or secondary dwelling has more than 7 shielded outside light fittings or more than 5 such light fittings that are not automatic light fittings.(2) In this clause—automatic light fitting means a light fitting that is activated by a sensor and switches off automatically after a period of time.dwelling house, dual occupancy and secondary dwelling have the same meanings as they have in the Standard Instrument.outside light fitting means a light fitting that is attached or fixed outside, including on the exterior of, a building.shielded light fitting means a light fitting that does not permit light to shine above the horizontal plane.cl 154D: Ins 2013 (705), Sch 1 [27]. Rep 2014 (452), Sch 1 [9]. Ins 2016 (303), Sch 1 [9].
155 Form of occupation certificate
(cf clause 79P of EP&A Regulation 1994)
(1) An occupation certificate must contain the following—(a) the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,(b) if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate,(b1) if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,(b2) if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate,(c) the date of the certificate,(d) indicate the type of certificate being issued (that is, interim or final),(e) a statement to the effect that—(i) the health and safety of the occupants of the building have been taken into consideration where an interim occupation certificate is being issued, and(ii) a current development consent or complying development certificate is in force for the building, and(iii) if any building work has been carried out, a current construction certificate (or complying development certificate) has been issued with respect to the plans and specifications for the building, and(iv) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and(v) a fire safety certificate has been issued for the building (if a fire safety schedule is required under Part 9), and(vi) a report from the Fire Commissioner has been considered (if required).(f) the following details of any alternative solution report about the building work involved that is required for the purposes of either clause 130(2A) or 144A(1)—(i) the title of the report,(ii) the date on which the report was made,(iii) the reference number and version number of the report,(iv) the name of the competent fire safety practitioner who prepared the report or on whose behalf the report was prepared,(v) if the competent fire safety practitioner who prepared the report or on whose behalf the report was prepared is an accredited certifier—the accreditation number of that practitioner.(2) The occupation certificate must be accompanied by a fire safety certificate and a fire safety schedule for the building (if a fire safety schedule is required under Part 9).(3), (4) (Repealed)cl 155: Am 19.7.2002; 2005 No 115, Sch 3.3 [7]; 2007 (496), Sch 1 [24] [25]; 2008 (467), Sch 1 [20] [21]; 2009 (511), Sch 1 [23]; 2013 (705), Sch 1 [28] [29]; 2017 (307), Sch 1 [14].
156 Occupation and use of new buildings: section 109M(2)
(cf clause 79Q of EP&A Regulation 1994)
(1) For the purposes of section 109M(2)(c) of the Act, the following are prescribed circumstances—(a) the fact that a building is a class 1a or class 10 building for which a construction certificate or complying development certificate was issued before 1 March 2004 (being the date on which Schedule 2.1 [32] to the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003 commenced),(b) the fact that the building is a temporary structure (other than a temporary structure that is an entertainment venue),(c) the fact that the building is a structure resulting from building work to which clause 162AB applies.(2) A person who is prescribed for the purposes of section 88(2)(a) of the Act in relation to Crown building work involving the erection of a new building is prescribed for the purposes of section 109M(2)(d) of the Act in relation to that building.Note—Section 109M of the Act prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.Section 109M(2)(c) provides for the disapplication of that section in circumstances prescribed by the regulations. Subclause (1) of this clause prescribes such circumstances.Section 109M(2)(d) provides for the disapplication of that section in the case of buildings erected by or on behalf of the Crown or by or on behalf of prescribed persons. Subclause (2) of this clause prescribes such persons.cl 156: Am 16.2.2001; 2003 No 95, Sch 2.1 [32]; 2007 (496), Sch 1 [26]; 2009 (269), Sch 1 [13]; 2009 (511), Sch 1 [24]; 2013 (236), Sch 1 [2]; 2014 (286) Sch 1 [1] [2].
Division 4 Subdivision certificates
157 Applications for subdivision certificates
(cf clause 79R of EP&A Regulation 1994)
(1) An application for a subdivision certificate must contain the following information—(a) the name and address of the applicant,(b) the address, and formal particulars of title, of the land to which the application relates,(c) if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the making of the application,and, if the certifying authority so requires, must be in the form approved by that authority.(d) a list of the documents accompanying the application,(2) The application must be accompanied by the following documents—(a) a plan of subdivision,(b) a copy of the relevant development consent or complying development certificate,(c) a copy of any relevant construction certificate,(d) a copy of detailed subdivision engineering plans,(e) for a deferred commencement consent, evidence that the applicant has satisfied the consent authority on all matters of which the consent authority must be satisfied before the consent can operate,(f) evidence that the applicant has complied with all conditions of consent that it is required to comply with before a subdivision certificate can be issued, where relevant,(g) a certificate of compliance from the relevant water supply authority, where relevant,(h) if a subdivision is the subject of an order of the Land and Environment Court under section 40 of the Land and Environment Court Act 1979, evidence that required drainage easements have been acquired by the relevant council,(i) for subdivision involving subdivision work, evidence that—(i) the work has been completed, or(ii) agreement has been reached with the relevant consent authority as to payment of the cost of the work and as to the time for carrying out the work, or(iii) agreement has been reached with the relevant consent authority as to security to be given to the consent authority with respect to the completion of the work.Note—See section 109O of the Act and clause 161 which provide that a requirement for a consent authority to be satisfied as to certain matters may be met if a certifying authority is satisfied as to those matters.(2A) The application may only be made—(a) by the owner of the land to which the application relates, or(b) by any other person, with the consent in writing of the owner of that land.(3) The application must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.(4) The plan of subdivision to which the application relates must be accompanied by a certificate on the plan in the relevant form required by the regulations in force under the Surveying and Spatial Information Act 2002.(5) Immediately after it receives an application for a subdivision certificate, the certifying authority must endorse the application with the date of its receipt.cl 157: Am 2002 No 83, Sch 2.8; 2008 No 36, Sch 4.2 [7]; 2009 No 119, Sch 2.10.
158 Certifying authority may require additional information
(cf clause 79S of EP&A Regulation 1994)
(1) A certifying authority may require the applicant for a subdivision certificate to give the certifying authority any additional information concerning the proposed subdivision or a planning agreement that is essential to the certifying authority’s proper consideration of the application.(2) Nothing in this clause affects the certifying authority’s duty to determine an application for a subdivision certificate.(3) A planning authority that is a party to a planning agreement may, at the request of an applicant for a subdivision certificate that is made for the purposes of obtaining information required under this clause, certify that specified requirements of the agreement have been complied with.cl 158: Am 2011 (64), Sch 1 [8] [9].
159 Certifying authorities to supply application form for subdivision certificates
(cf clause 79T of EP&A Regulation 1994)
If a certifying authority requires an application for a subdivision certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.
160 Procedure for determining application for subdivision certificate
(cf clause 79U of EP&A Regulation 1994)
(1) The determination of an application for a subdivision certificate must be in writing and must contain the following information—(a) the date on which the application was determined,(b) whether the application has been determined—(i) by approval, or(ii) by refusal,(c) if the application has been determined by refusal—(i) the reasons for the refusal, and(ii) if the certifying authority is a consent authority, of the applicant’s right of appeal under the Act against the refusal,(d) the identity of the certifying authority determining the application, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who dealt with the application on behalf of the body corporate,(e) if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who dealt with the application on behalf of the body corporate,(f) if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,(g) if an individual dealt with the application on behalf of the certifying authority, the signature of the individual who dealt with the application.(2) The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 2 days after the date of the determination—(a) a copy of the determination,(b) copies of any documents that were lodged with the application for the certificate,(c) if a subdivision certificate was issued, a copy of the endorsed plan of subdivision.Note—The form of the subdivision certificate is regulated under the Conveyancing Act 1919.cl 160: Am 2003 No 95, Sch 2.1 [33]; 2008 (467), Sch 1 [22].
160A Prescribed persons—subdivision certificates
The following persons are prescribed for the purposes of section 109D(1)(d)(iii) of the Act—(a) Newcastle Port Corporation,(b), (c) (Repealed)(d) Rail Corporation New South Wales,(e) Transport Infrastructure Development Corporation,(f) port operator of the Port of Botany Bay within the meaning of the Ports and Maritime Administration Act 1995,(g) port operator of the Port of Port Kembla within the meaning of the Ports and Maritime Administration Act 1995,(h) port operator of the Port of Newcastle within the meaning of the Ports and Maritime Administration Act 1995.cl 160A: Ins 26.4.2002. Am 2005 (831), Sch 1 [2]; 2013 (236), Sch 1 [3]; 2014 (286) Sch 1 [3]; 2016 No 55, Sch 3.11.
Division 5 General
161 Certifying authorities may be satisfied as to certain matters: section 109O
(cf clause 79V of EP&A Regulation 1994)
(1) This clause applies to the following matters—(a) any matter that relates to the form or content of the plans and specifications for the following kind of work to be carried out in connection with the erection of a building or the subdivision of land—(i) earthwork,(ii) road work, including road pavement and road finishing,(iii) stormwater drainage work,(iv) landscaping work,(v) erosion and sedimentation control work,(vi) excavation work,(vii) mechanical work,(viii) structural work,(ix) hydraulic work,(x) work associated with driveways and parking bays, including road pavement and road finishing,(b) any matter that relates to the external finish of a building.(2) Any requirement of the conditions of a development consent that a consent authority or council is to be satisfied as to a matter to which this clause applies is taken to have been complied with if a certifying authority is satisfied as to that matter.
162 Notice of replacement of principal certifying authority
(1) A principal certifying authority appointed to replace another principal certifying authority must ensure that notice of the appointment and of the approval of that appointment is given to the consent authority (and, if the consent authority is not the council, to the council) within 2 days after the appointment.(2) Nothing in this clause requires any notice to be given to a person who has agreed to, or been notified of, the proposed appointment under section 109EA of the Act.(3) Clause 103 applies to a notice given for the purposes of this clause in the same way as it applies to a notice given under or for the purposes of section 81A(2)(b1)(i) or (4)(b1)(i) of the Act.(4) In addition to the information required by subclause (3) to be included in a notice under this clause, the following information is to be included—(a) the name of the former principal certifying authority who has been replaced,(b) a statement that the former principal certifying authority agreed to be replaced.cl 162: Subst 2003 No 95, Sch 2.1 [34]. Am 2008 (467), Sch 1 [23] [24].
162A Critical stage inspections required by section 109E(3)(d)
(1) For the purposes of section 109E(3)(d) of the Act, the occasions on which building work must be inspected are as set out in this clause.Note—These inspections are the critical stage inspections.(2) Except as provided by subclause (3), the critical stage inspections may be carried out by the principal certifying authority or, if the principal certifying authority agrees, by another certifying authority.(3) The last critical stage inspection required to be carried out for the class of building concerned must be carried out by the principal certifying authority.(4) In the case of a class 1 or 10 building, the occasions on which building work for which a principal certifying authority is first appointed on or after 1 July 2004 must be inspected are—(a) (Repealed)(b) after excavation for, and prior to the placement of, any footings, and(c) prior to pouring any in-situ reinforced concrete building element, and(d) prior to covering of the framework for any floor, wall, roof or other building element, and(e) prior to covering waterproofing in any wet areas, and(f) prior to covering any stormwater drainage connections, and(g) after the building work has been completed and prior to any occupation certificate being issued in relation to the building.(4A) However, in the case of a class 1 or 10 building, an inspection on an occasion described in subclause (4)(a)–(f) that occurs before 1 July 2005 is not prescribed for the purposes of section 109E(3)(d) of the Act if—(a) the inspection is carried out by a person considered by the principal certifying authority to be suitably qualified to carry out the inspection (but who is not necessarily an accredited certifier) and employed, or nominated for the purpose of carrying out the inspection, by the principal certifying authority, and(b) the person would not be disqualified by section 109ZG of the Act (except by subsection (1)(d) or (1A) of that section) from issuing a Part 4A certificate in relation to any aspect of the development concerned.(c) the person makes a record of each inspection carried out by him or her, and provides a copy of that record to the principal certifying authority, as required by clause 162B for a critical stage inspection or any other inspection required by the principal certifying authority.(5) In the case of a class 2, 3 or 4 building, the occasions on which building work must be inspected are—(a) prior to covering of fire protection at service penetrations to building elements that are required to resist internal fire or smoke spread, inspection of a minimum of one of each type of protection method for each type of service, on each storey of the building comprising the building work, and(a1) prior to covering the junction of any internal fire-resisting construction bounding a sole-occupancy unit, and any other building element required to resist internal fire spread, inspection of a minimum of 30% of sole-occupancy units on each storey of the building containing sole-occupancy units, and(b) prior to covering of waterproofing in any wet areas, for a minimum of 10% of rooms with wet areas within a building, and(c) prior to covering any stormwater drainage connections, and(d) after the building work has been completed and prior to any occupation certificate being issued in relation to the building.(6) In the case of a class 5, 6, 7, 8 or 9 building, the occasions on which building work for which a principal certifying authority is first appointed on or after 1 July 2004 must be inspected are—(a) in relation to a critical stage inspection of a class 9a and 9c building, as defined in the Building Code of Australia—prior to covering of fire protection at service penetrations to building elements that are required to resist internal fire or smoke spread, inspection of a minimum of one of each type of protection method for each type of service, on each storey of the building comprising the building work, and(b) prior to covering any stormwater drainage connections, and(c) after the building work has been completed and prior to any occupation certificate being issued in relation to the building.(7) (Repealed)(7A) Inspections of building work must be made on the following occasions in addition to those required by the other provisions of this clause for the building work—(a) in the case of a swimming pool, as soon as practicable after the barrier (if one is required under the Swimming Pools Act 1992) has been erected,(b) in the case of a class 2, 3, 4, 5, 6, 7, 8 or 9 building, after the commencement of the excavation for, and before the placement of, the first footing.(8) This clause does not prescribe any occasion on which a manufactured home or dwelling built off the site in sections and transported to the site for assembly is required to be inspected.cl 162A: Ins 2003 No 95, Sch 2.1 [35]. Am 27.2.2004; 9.7.2004; 2004 No 91, Sch 2.28 [2]; 2008 No 36, Sch 4.2 [8]–[10]; 2009 (39), Sch 1 [9]; 2010 (513), Sch 1 [4]; 2017 (307), Sch 1 [15] [16].
162AB Critical stage inspections and other matters for certain structures at Ports Botany and Kembla and Port of Newcastle
(1) This clause applies to any building work on land to which State Environmental Planning Policy (Three Ports) 2013 applies if that work results in a structure that—(a) does not have a classification under the Building Code of Australia, or(b) is, or is of a kind, declared by the Planning Secretary (by notice published in the Gazette) to be a structure to which this paragraph applies.(2) A principal certifying authority (PCA) for building work to which this clause applies is required to carry out (or to be satisfied that another certifying authority has carried out) inspections in respect of that work on the occasions specified by this clause (and on such other occasions as may be required by the PCA) before the use of the structure may commence.(3) The occasions on which inspections (critical stage inspections) must be carried out are—(a) after excavation for, and prior to the placement of, any footings, and(b) prior to pouring any in-situ reinforced concrete building element, and(c) on completion of the building work.(4) Except as provided by subclause (5), the critical stage inspections may be carried out by the PCA or, if the PCA agrees, by another certifying authority.(5) The critical stage inspection required to be carried out on completion of the building work must be carried out by the PCA.(6) Before carrying out that critical stage inspection, the PCA is required to be satisfied that the PCA has been provided with all certificates that the PCA is required to be provided with as a condition, under State Environmental Planning Policy (Three Ports) 2013, of any complying development certificate authorising the building work.cl 162AB: Ins 2013 (236), Sch 1 [4]. Subst 2014 (286) Sch 1 [4].
162B Record of inspections conducted under section 109E(3) of the Act and clauses 162A and 162AB
(1) A certifying authority (whether or not a principal certifying authority) must make a record of each of the following inspections carried out by the certifying authority—(a) each critical stage inspection under clause 162A or 162AB, and(b) each inspection carried out because it was required by the principal certifying authority under section 109E(3)(d) of the Act or clause 162AB.(2) Any certifying authority who is required to make such a record but is not the principal certifying authority for the work concerned must, within 2 days after the record is made, provide a copy of the record to the principal certifying authority for the work.Note—Copies of these records must be kept for at least 15 years (see the regulations made under the Building Professionals Act 2005).(3) Each record of an inspection required by this clause must be made as soon as practicable after the inspection is carried out.(4) The record must include details of—(a) the registered number of the development application and of the construction certificate or complying development certificate, and(b) the address of the property at which the inspection was carried out, and(c) the type of inspection, and(d) the date on which it was carried out, and(e) the identity of the certifying authority by whom the inspection was carried out, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who carried out the inspection on behalf of the body corporate, and(e1) if the certifying authority by whom the inspection was carried out is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who carried out the inspection on behalf of the body corporate, and(f) whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out.cl 162B: Ins 2003 No 95, Sch 2.1 [35]. Am 9.7.2004; 2008 (467), Sch 1 [25]; 2009 (39), Sch 1 [10]; 2013 (236), Sch 1 [5]; 2014 (286) Sch 1 [5] [6].
162C Progress inspection unavoidably missed
(1) If the circumstances described in subclause (2) apply—(a) an inspection, other than a final inspection, that would be prescribed for the purposes of section 109E(3)(d) of the Act in the absence of this clause, is not prescribed for the purposes of that paragraph, and(b) an inspection that is not prescribed for the purposes of that paragraph, but is required to be carried out by the principal certifying authority under that paragraph, need not be carried out.(1A) If the circumstances described in subclause (2) apply, an inspection, other than a final inspection, that is required to be carried out under clause 162AB need not be carried out.(2) The circumstances are—(a) the inspection was missed because of circumstances that the principal certifying authority considers were unavoidable, and(b) the principal certifying authority is satisfied that the work that would have been the subject of the missed inspection was satisfactory, and(c) the principal certifying authority, as soon as practicable after becoming aware of the circumstances that caused the inspection to be missed, makes a record in accordance with subclause (3).(3) The record of a missed inspection must include the following—(a) a description of the development to which the record relates and of the class of the building concerned,(b) the address and land title particulars (such as the Lot and DP numbers) of the property concerned,(c) the registered number of the development consent and the construction certificate or of the complying development certificate,(d) the name and accreditation number of the principal certifying authority,(e) the name, address and telephone number of the principal contractor or owner builder and, if that person is required to be the holder of a licence or permit, the number of that licence or permit,(f) particulars of the inspection that was missed and of the circumstances that the principal certifying authority considers were unavoidable that caused it to be missed,(g) a statement that the principal certifying authority is satisfied that the work that would have been the subject of the missed inspection was satisfactory,(h) the documentary evidence that was relied on to satisfy the principal certifying authority that the work that would have been the subject of the missed inspection was satisfactory, including (but not limited to) documentary evidence of a kind referred to in Part A2, clause A2.2, of the Building Code of Australia.(4) Within 2 days after a person who is not the principal certifying authority becomes aware that an inspection described in subclause (1) that was required to be carried out by him or her has been missed, he or she must inform the principal certifying authority of that fact and of the circumstances causing the inspection to be missed.(5) Within 2 days after becoming aware that an inspection, other than a final inspection, has been missed, the principal certifying authority—(a) must notify that fact to the person who appointed the principal certifying authority and in the case of work for which a principal contractor is required to be appointed, the principal contractor or, in the case of work being done by an owner builder, the owner builder, and(b) must send a copy of the record made under this clause to the person who appointed the principal certifying authority.(6) In this clause, final inspection means an inspection described in clause 162A(4)(g), (5)(d) or (6)(c) or 162AB(3)(c).cl 162C: Ins 9.7.2004. Am 2005 No 115, Sch 3.3 [8]; 2008 No 36, Sch 4.2 [11]; 2009 (39), Sch 1 [11] [12]; 2013 (236), Sch 1 [6] [7]; 2014 (286) Sch 1 [7].
162D Council to be notified of significant fire safety issues
(1) A certifying authority is required to give written notice to the council in accordance with this clause if—(a) an application has been made to the certifying authority for a Part 4A certificate affecting an existing building, and(b) the building is a class 1b, 2, 3, 4, 5, 6, 7, 8 or 9 building, and(c) at any time between the application being received and the issue of the Part 4A certificate, the certifying authority becomes aware (when carrying out an inspection or otherwise) of a significant fire safety issue with any part of the building.(2) A principal certifying authority is required to give written notice to the council in accordance with this clause if—(a) the principal certifying authority has been appointed under section 109E of the Act in relation to building work affecting an existing building, and(b) the building is a class 1b, 2, 3, 4, 5, 6, 7, 8 or 9 building, and(c) at any time between the appointment under section 109E and the issue of an occupation certificate in respect of the building work, the principal certifying authority becomes aware (when carrying out an inspection or otherwise) of a significant fire safety issue with the building.(3) The notice—(a) must describe the fire safety issue and the parts of the building affected by the issue, and(b) must be made within 2 days after the certifying authority or principal certifying authority becomes aware of the fire safety issue.(4) However, the certifying authority or principal certifying authority is not required to give notice if the fire safety issue is being addressed—(a) by a fire safety order, or(b) by development that affects the building, being development that is the subject of a development consent (including a complying development certificate) or a construction certificate.(5) To avoid doubt, this clause extends to a council that is a certifying authority or principal certifying authority.cl 162D: Ins 2014 (452), Sch 1 [10].
163 Notice to allow inspections
To allow a principal certifying authority or another certifying authority time to carry out critical stage inspections or any other inspections required by the principal certifying authority, the principal contractor for a building site, or the owner-builder, must notify the principal certifying authority at least 48 hours before each required inspection needs to be carried out.cl 163: Subst 2003 No 95, Sch 2.1 [36]. Am 9.7.2004.
164 No need for duplicate notices
(cf clause 79Y of EP&A Regulation 1994)
Nothing in this Part requires a certifying authority to give a copy of a document to itself just because it is also a consent authority or council or to give more than one copy of a document to any other person just because that other person is both a consent authority and a council.
164A BASIX certificates
(1) The Planning Secretary may issue certificates (BASIX certificates) in relation to the sustainability of any proposed BASIX affected development and any proposed BASIX optional development.(2) Without limiting subclause (1), a BASIX certificate may be issued by means of a computerised system, as approved from time to time by the Planning Secretary, being a system to which members of the public are given on-line access, whether over the internet or otherwise.(3) The relevant application need only be accompanied by one BASIX certificate.(3A) Subclause (3) does not apply to development that involves the alteration, enlargement or extension of a BASIX affected building that contains more than one dwelling.Note—See Schedule 1, clauses 2A, 4A and 6A which require separate certificates for each dwelling.(4) A BASIX certificate must contain the following—(a) a description of the proposed development, corresponding in all relevant respects with the description contained in—(i) the relevant application, and(ii) any relevant accompanying documents,(b) a detailed list of the commitments that the applicant has made as to the manner in which the development will be carried out (being commitments as to the measures, such as design and fit-out, that the applicant proposes to implement in order to promote the sustainability of the development),(c) a statement to the effect that the proposed development will meet the Government’s requirements for sustainability if the applicant’s commitments are fulfilled.(4A) In the case of a development that involves the erection of a building for both residential and non-residential purposes, or the change of use of a building to both residential and non-residential purposes, the description referred to in subclause (4)(a) need only include information concerning the part of the development that is intended to be used for residential purposes.(5) In this clause—accompanying document means any document required to accompany an application pursuant to clause 2, 4 or 6 of Schedule 1.application means—(a) a development application, application for a complying development certificate or application for a construction certificate, or(b) an application for modification of a development consent, complying development certificate or construction certificate.sustainability, in relation to proposed development, means the capacity of the development—(a) to reduce consumption of mains-supplied potable water, and(b) to reduce emissions of greenhouse gases, and(c) to perform in a thermally efficient manner.cl 164A: Ins 25.6.2004. Am 2005 (599), Sch 1 [17]–[19]; 2006 (600), Sch 1 [20] [21].
164B Certain building work on fire safety systems may be exempt from compliance with the BCA standards
(1) A person may lodge with the certifying authority an objection that compliance with any specified provision of the Building Code of Australia that relates to the operational performance of a relevant fire safety system is unreasonable or unnecessary in the particular circumstances of the case.(2) A person may lodge an objection under this clause only if the person has, or will have, the benefit of—(a) a complying development certificate subject to a condition under clause 136AA in relation to building work involving the minor modification or extension of any relevant fire safety system, or(b) a construction certificate subject to a condition under clause 146B in relation to building work involving the minor modification or extension of any relevant fire safety system.(3) The objection must specify the grounds of the objection and must furnish the certifying authority with a copy of the plans and specifications for the building work.(4) If the certifying authority is satisfied that an objection is well founded, it may exempt the building work, either conditionally or unconditionally, from any specified provision of the Building Code of Australia.(5) A certifying authority may only exempt the building work if—(a) the non-compliance with the Building Code of Australia relates only to the operational performance of the relevant fire safety system, and(b) the certifying authority is satisfied that the non-compliance will not reduce the operational performance of the relevant fire safety system, and(c) a competent fire safety practitioner (other than the competent fire safety practitioner who prepared the plans and specifications) has endorsed the non-compliance, and(d) a fire safety certificate or fire safety statement that relates to or includes the fire safety system being modified or extended was issued for the building no more than 6 months before the objection was made.Note—If the certifying authority exempts compliance with the Building Code of Australia under this clause, the exemption must be detailed in the terms of the complying development certificate or construction certificate (see clauses 134 and 147, respectively).(6) This clause does not apply to building work that is required by a fire safety order.(7) In this clause—relevant fire safety system means any of the following—(a) a hydraulic fire safety system within the meaning of clause 165,(b) a fire detection and alarm system,(c) a mechanical ducted smoke control system.cl 164B: Ins 2017 (307), Sch 1 [17].
Part 9 Fire safety and matters concerning the Building Code of Australia
Division 1 Preliminary
165 Definitions
(cf clause 80 of EP&A Regulation 1994)
In this Part and Schedule 1—alteration to a hydraulic fire safety system means a permanent alteration to a hydraulic fire safety system that modifies or enables the modification of the pressure or flow characteristics of the hydraulic fire safety system and that is not associated with—(a) an alteration, enlargement or extension of an existing building, unless the alteration, enlargement or extension relates solely and directly to the alteration to the hydraulic fire safety system, or(b) a change of use of a building.annual fire safety statement means a statement referred to in clause 175.critical fire safety measure means a fire safety measure that is identified in a fire safety schedule as a critical fire safety measure, being a measure that is of such a nature, or is implemented in such an environment or in such circumstances, that the measure requires periodic assessment and certification at intervals of less than 12 months.essential fire safety measure, in relation to a building, means a fire safety measure that is included—(a) in the fire safety schedule for the building, or(b) in the essential services (within the meaning of Ordinance No 70 under the Local Government Act 1919) attached to an approval or order referred to in Part 59 of that Ordinance, being an approval or order that was in force immediately before 1 July 1993, or(c) in the essential services (within the meaning of the Local Government (Approvals) Regulation 1993) attached to an approval referred to in clause 22 of that Regulation, being the latest such approval granted during the period from 1 July 1993 to 30 June 1997, or(d) in the essential services (within the meaning of the Local Government (Orders) Regulation 1993) attached to an order referred to in clause 6(1) of that Regulation, being the latest such order given during the period from 1 July 1993 to 30 June 1997.final fire safety certificate means a certificate referred to in clause 170.fire exit, in relation to a building, means any exit to the building that has been provided in compliance with any requirement imposed by or under the Act or this Regulation or by or under any other law, whether or not that law is currently in force.fire safety certificate means an interim fire safety certificate or a final fire safety certificate.fire safety measure means any measure (including any item of equipment, form of construction or fire safety strategy) that is, or is proposed to be, implemented in a building to ensure the safety of persons using the building in the event of fire.fire safety statement means an annual fire safety statement or a supplementary fire safety statement.fire-isolated, when used in connection with the words “stairway, passageway or ramp”, means a fire-isolated stairway, fire-isolated passageway or fire-isolated ramp, as the case may be, within the meaning of the Building Code of Australia.hydraulic fire safety system means—(a) a fire hydrant system, or(b) a fire hose reel system, or(c) a sprinkler system (including a wall-wetting sprinkler or drencher system), orthat is installed in accordance with a requirement of, or under, the Act or any other Act or law (including an order or a condition of an approval or some other sort of authorisation).(d) any type of automatic fire suppression system of a hydraulic nature,interim fire safety certificate means a certificate referred to in clause 173.statutory fire safety measure means a fire safety measure of a kind referred to in the Table to clause 166.supplementary fire safety statement means a statement referred to in clause 178.cl 165: Am 19.7.2002; 2013 (705), Sch 1 [30]–[32]; 2014 (452), Sch 1 [11].
166 Statutory fire safety measures
(cf clause 80A of EP&A Regulation 1994)
The fire safety measures listed in the Table to this clause are statutory fire safety measures for the purposes of this Part.Table
Automatic fail-safe devices
Automatic fire detection and alarm systems
Automatic fire suppression systems
Emergency lifts
Emergency lighting
Emergency warning and intercommunication systems
Exit signs
Fire control centres and rooms
Fire dampers
Fire doors
Fire hose reel systems
Fire hydrant systems
Fire seals protecting openings in fire-resisting components of the building
Fire windows
Lightweight construction
Mechanical air handling systems
Perimeter vehicle access for emergency vehicles
Portable fire extinguishers
Safety curtains in proscenium openings
Smoke alarms and heat alarms
Smoke and heat vents
Smoke dampers
Smoke detectors and heat detectors
Smoke doors
Solid core doors
Standby power systems
Wall-wetting sprinkler and drencher systems
Warning and operational signscl 166: Am 2006 (89), Sch 1 [2]; 2013 (705), Sch 1 [33].
167 Application of Part
(cf clause 80B of EP&A Regulation 1994)
(1) This Part applies to all buildings except as follows—(a) only Division 7A applies to class 1a and class 10 buildings,(b) only Division 8 applies to temporary structures,(c) Division 7C applies only to—(i) class 2, class 3 and class 9 buildings of 2 or more storeys, and(ii) any class 4 part of a class 9 building of 2 or more storeys.(2) In this clause, a reference to a class 1a or class 10 building—(a) in the case of the erection of a new building, is a reference to a building that will be a class 1a or class 10 building when completed, and(b) in the case of the rebuilding, alteration, enlargement or extension of an existing building, is a reference to an existing class 1a or class 10 building, and(c) in the case of the change of building use for a building, is a reference to a building that will be a class 1a or class 10 building as a result of the change of building use.cl 167: Am 2006 (89), Sch 1 [3]; 2007 (496), Sch 1 [27]; 2018 (499), Sch 1 [4].
167A Competent fire safety practitioners
(1) The Secretary may, by order published in the Gazette, recognise a class of persons as competent fire safety practitioners for the purposes of one or more provisions of this Regulation.(2) Without limiting the classes of persons who may be recognised, they may include—(a) a class of persons holding a specified category of certificate of accreditation under the Building Professionals Act 2005, or(b) a class of persons holding a specified category of certificate of accreditation under the Building Professionals Act 2005 and having some other characteristic or qualification, or(c) a class of persons who have undergone particular training or assessment carried out by a specified professional organisation or body or an industry organisation or body.(3) In determining whether or not to make an order under this clause, the Secretary must have regard to any guidelines published by the Secretary about the steps that professional or industry organisations or bodies are to follow in order to be considered for inclusion in such an order, including requirements about auditing and complaints handling.(4) Until an order is published under subclause (1) and one or more persons have been recognised as a competent fire safety practitioner for a particular function under this Regulation—(a) for the purposes of the functions referred to in clauses 130, 136AA, 144A, 146B and 164B, any person who, in the written opinion of the relevant certifying authority or principal certifying authority, as the case may be, is competent to perform the fire safety assessment functions under those clauses is taken to be a competent fire safety practitioner, and(b) for the purposes of the functions referred to in Divisions 4 and 5 of Part 9, any person who, in the written opinion of the relevant building owner, is competent to perform the fire safety assessment functions under those Divisions is taken to be a competent fire safety practitioner.(5) In this clause—Secretary means the Secretary of the Department of Finance, Services and Innovation.cl 167A: Ins 2017 (307), Sch 1 [18].
Division 2 Fire safety schedules
168 Fire safety schedules
(cf clause 80C of EP&A Regulation 1994)
(1) When—(a) granting a development consent for a change of building use (other than a complying development certificate) in circumstances in which no building work is proposed by the applicant for the consent and no building work is required by the consent authority, or(b) issuing a complying development certificate for the erection of a building or for a change of building use, or(c) issuing a construction certificate for proposed building work, orthe person doing so must issue a schedule (a fire safety schedule) specifying the fire safety measures (both current and proposed) that should be implemented in the building premises.(d) giving a fire safety order in relation to building premises,(2) In the case of a fire safety order in respect of which a further order is made under section 121R of the Act, the fire safety schedule is to be issued when the further order is given.(2A) Despite subclause (1)(b), (c) and (d), a fire safety schedule is not required to be issued if—(a) the work for which a complying development certificate or construction certificate is to be issued relates only to—(i) an alteration to a hydraulic fire safety system, or(ii) the installation of a fixed on-site pumpset and the construction of a new external pumphouse to accommodate that pumpset, and(b) the carrying out of that work does not result in a permanent reduction of the fire protection provided by the existing hydraulic fire safety system that will be the subject of that work, and(c) there is notice, in respect of the premises on which the works are to be carried out, of a past, current or proposed action by or on behalf of a water utility to install mains pressure reduction capability or to implement mains pressure reduction.Note—Pursuant to clause 167, a fire safety schedule is also not required in relation to a class 1a building, a class 10 building or a temporary structure.(3) A fire safety schedule—(a) must deal with the whole of the building, not merely the part of the building to which the development consent, complying development certificate, construction certificate or fire safety order relates, and(b) must include—(i) such of the fire safety measures currently implemented in the building premises, andas are statutory fire safety measures, and(ii) such of the fire safety measures proposed or required to be implemented in the building premises,(c) must distinguish between—(i) the fire safety measures currently implemented in the building premises, and(ii) the fire safety measures proposed or required to be implemented in the building premises, and(d) must identify each measure that is a critical fire safety measure and the intervals (being intervals of less than 12 months) at which supplementary fire safety statements must be given to the council in respect of each such measure, and(e) must specify the minimum standard of performance for each fire safety measure included in the schedule.(4) A copy of the fire safety schedule must be attached to (and is taken to form part of) the relevant development consent, complying development certificate, construction certificate or fire safety order and for the purposes of an appeal forms part of the development consent or construction certificate.(5) An earlier fire safety schedule is superseded by a later fire safety schedule, and ceases to have effect when the later fire safety schedule is issued.cl 168: Am 19.7.2002; 2013 (705), Sch 1 [34] [35].
168A (Repealed)
cl 168A: Ins 19.7.2002. Rep 2013 (705), Sch 1 [36].
168B Installation of fire sprinkler systems in certain residential aged care facilities
(1) This clause applies to a complying development certificate or a construction certificate that relates only to the installation of a fire sprinkler system that is required to be installed under Division 7B of Part 9 of this Regulation.(2) A person issuing such a certificate must also issue—(a) if there is a current fire safety schedule for the building concerned, a schedule (a fire sprinkler system installation schedule) for the new fire sprinkler system, or(b) in any other case, a fire safety schedule dealing only with the new fire sprinkler system.(3) A fire sprinkler system installation schedule or fire safety schedule issued under this clause—(a) must specify the minimum standard of performance for the new fire sprinkler system, and(b) if the new fire sprinkler system is a critical fire safety measure, must identify the system as such and specify the intervals (being intervals of less than 12 months) at which supplementary fire safety statements must be given to the council.(4) If a fire sprinkler system installation schedule is issued, a copy of the schedule must be attached to the current fire safety schedule for the building concerned and the copy is taken, for the purposes of this Regulation, to form part of the fire safety schedule.Note—This means that when the current fire safety schedule is updated, the updated fire safety schedule must incorporate not only the current fire safety schedule but also the fire sprinkler system installation schedule.(5) Clause 168(4) applies to a fire sprinkler system installation schedule and a fire safety schedule issued under this clause.cl 168B: Ins 2012 (668), Sch 1 [3].
Division 3 Fire safety orders
169 Fire safety schedules and fire safety certificates
(cf clause 80D of EP&A Regulation 1994)
(1) As soon as practicable after making a fire safety order, a person must cause copies of the fire safety schedule required by clause 168 to be given to the council and to the Fire Commissioner.(2) A person to whom a fire safety order is given in relation to any building must, within the time specified in the order, cause copies of a final fire safety certificate for the building (being a certificate issued after the requirements of the order have been complied with) to be given to the person by whom the order was given (and, if that person was not the council, to the council).Note—See also clause 172 which requires a copy of the ensuing fire safety certificate to be given to the Fire Commissioner.
Division 4 Fire safety certificates
170 What is a final fire safety certificate?
(cf clause 80E of EP&A Regulation 1994)
A final fire safety certificate is a certificate issued by or on behalf of the owner of a building to the effect that each essential fire safety measure specified in the current fire safety schedule for the building to which the certificate relates—(a) has been assessed by a properly qualified person, and(b) was found, when it was assessed, to be capable of performing to at least the standard required by the current fire safety schedule for the building for which the certificate is issued.Note—A final fire safety certificate must be provided before a final occupation certificate can be issued for a building under clause 153(1), and must also be provided if a fire safety order is made in relation to building premises.cl 170: Am 19.7.2002; 2003 No 95, Sch 2.1 [37]; 2013 (705), Sch 1 [37].
171 Issue of final fire safety certificates
(1) The assessment of essential fire safety measures must have been carried out within the period of 3 months prior to the date on which a final fire safety certificate is issued.(2) The choice of person to carry out an assessment is up to the owner of the building.(3) A person who carries out an assessment—(a) must inspect and verify the performance of each fire safety measure being assessed, and(b) must test the operation of each new item of equipment installed in the building premises that is included in the current fire safety schedule for the building.(4) A final fire safety certificate issued in relation to work that has been authorised or required by a development consent, construction certificate or fire safety order need not deal with any essential fire safety measure the subject of some other final fire safety certificate or fire safety statement issued within the previous 6 months, unless the person by whom the development consent, construction certificate or fire safety order is issued or given otherwise determines.(5) The person by whom the development consent, construction certificate or fire safety order is issued or given may make such a determination only if—(a) the person is of the opinion that the measure will be affected by the work, and(b) the person has specified in the fire safety schedule attached to the development consent, construction certificate or fire safety order that the final fire safety certificate issued in relation to the work must deal with that measure.
172 Final fire safety certificate to be given to Fire Commissioner and prominently displayed in building
(1) As soon as practicable after a final fire safety certificate is issued, the owner of the building to which it relates—(a) must cause a copy of the certificate (together with a copy of the current fire safety schedule) to be given to the Fire Commissioner, and(b) must cause a further copy of the certificate (together with a copy of the current fire safety schedule) to be prominently displayed in the building.(2) Subclause (1)(b) ceases to apply to a final fire safety certificate only when every essential fire safety measure with which it deals has become the subject of a later fire safety certificate or fire safety statement.
173 What is an interim fire safety certificate?
(cf clause 80F of EP&A Regulation 1994)
(1) An interim fire safety certificate is a certificate issued by the owner of a building to the effect that each essential fire safety measure specified in the current fire safety schedule for the part of the building to which the certificate relates—(a) has been assessed by a properly qualified person, and(b) was found, when it was assessed, to be capable of performing to at least the standard required by the current fire safety schedule for the building for which the certificate is issued.(2) The provisions of clause 171 and 172 apply to an interim fire safety certificate in the same way as they apply to a final fire safety certificate.Note—An interim fire safety certificate (or a final fire safety certificate) must be provided before an interim occupation certificate can be issued for a building under clause 153(2).
174 Form of fire safety certificates
(cf clause 80G of EP&A Regulation 1994)
(1) A fire safety certificate for a building or part of a building must be made in the form approved by the Planning Secretary and must contain the following information—(a) the name and address of the owner of the building or part,(b) a description of the building or part (including its address),(c) a list identifying each essential fire safety measure in the building or part, together with the minimum standard of performance specified in the relevant fire safety schedule in relation to each such measure,(d) the date or dates on which the essential fire safety measures were assessed,(e) the type of certificate being issued (that is, final or interim),(f) a statement to the effect referred to in clause 170 (for a final certificate) or clause 173 (for an interim certificate),(g) the date on which the certificate is issued.(2) A fire safety certificate for a building or part of a building must be accompanied by a fire safety schedule for the building or part.cl 174: Am 2017 (307), Sch 1 [19].
Division 5 Fire safety statements
175 What is an annual fire safety statement?
(cf clause 80GA of EP&A Regulation 1994)
An annual fire safety statement is a statement issued by or on behalf of the owner of a building to the effect that—(a) each essential fire safety measure specified in the statement has been assessed by a competent fire safety practitioner and was found, when it was assessed, to be capable of performing—(i) in the case of an essential fire safety measure applicable by virtue of a fire safety schedule, to a standard no less than that specified in the schedule, or(ii) in the case of an essential fire safety measure applicable otherwise than by virtue of a fire safety schedule, to a standard no less than that to which the measure was originally designed and implemented, and(b) the building has been inspected by a competent fire safety practitioner and was found, when it was inspected, to be in a condition that did not disclose any grounds for a prosecution under Division 7.cl 175: Am 2003 No 95, Sch 2.1 [38]; 2017 (307), Sch 1 [20].
176 Issue of annual fire safety statements
(1) The assessment and inspection of an essential fire safety measure or building must have been carried out within the period of 3 months prior to the date on which the annual fire safety statement is issued.(2) The choice of person to carry out an assessment or inspection is up to the owner of the building.(3) The person who carries out an assessment must inspect and verify the performance of each fire safety measure being assessed.
177 Annual fire safety statement to be given to consent authority and Fire Commissioner and prominently displayed in building
(cf clause 80GB of EP&A Regulation 1994)
(1) Each year, the owner of a building to which an essential fire safety measure is applicable must cause the council to be given an annual fire safety statement for the building.(2) An annual fire safety statement for a building—(a) must deal with each essential fire safety measure in the building premises, and(b) must be given—(i) within 12 months after the date on which an annual fire safety statement was previously given, orwhichever is the later.(ii) if a fire safety certificate has been issued within the previous 12 months, within 12 months after the fire safety certificate was issued,(2A) Failure to give an annual fire safety statement to the council within the time prescribed by subclause (2)(b) constitutes a separate offence for each week beyond the expiry of that time for which the failure continues.(3) As soon as practicable after an annual fire safety statement is issued, the owner of the building to which it relates—(a) must cause a copy of the statement (together with a copy of the current fire safety schedule) to be given to the Fire Commissioner, and(b) must cause a further copy of the statement (together with a copy of the current fire safety schedule) to be prominently displayed in the building.(4) Subclause (3)(b) ceases to apply to an annual fire safety statement only when every essential fire safety measure with which it deals has become the subject of a later fire safety certificate or fire safety statement.(5) In relation to land to which the State Environmental Planning Policy (Kosciuszko National Park—Alpine Resorts) 2007 applies, a reference in this clause to the provision of fire safety statements for premises in ski resort areas to the council is taken to be a reference to the Minister.cl 177: Am 2002 No 134, Sch 2.1 [25]; 2017 (307), Sch 1 [21].
178 What is a supplementary fire safety statement?
(cf clause 80GC of EP&A Regulation 1994)
A supplementary fire safety statement is a statement issued by the owner of a building to the effect that each critical fire safety measure specified in the statement has been assessed by a competent fire safety practitioner and was found, when it was assessed, to be capable of performing to at least the standard required by the current fire safety schedule for the building for which the statement is issued.cl 178: Am 2017 (307), Sch 1 [22].
179 Issue of supplementary fire safety statements
(1) The assessment of a critical fire safety measure must have been carried out within the period of one month prior to the date on which the supplementary fire safety statement is issued.(2) The choice of person to carry out the assessment is up to the owner of the building.(3) The person who carries out the assessment must inspect and verify the performance of each fire safety measure being assessed.
180 Supplementary fire safety statement to be given to council and Fire Commissioner and prominently displayed in building
(cf clause 80GD of EP&A Regulation 1994)
(1) The owner of building premises in which a critical fire safety measure is implemented must cause the council to be given periodic supplementary fire safety statements for that measure.(2) A supplementary fire safety statement for a critical fire safety measure must be given at such intervals (being intervals of less than 12 months) as is specified in respect of that measure in the current fire safety schedule for the building.(2A) Failure to give a supplementary fire safety statement to the council within the time required by the current fire safety schedule for the building constitutes a separate offence for each week beyond the expiry of that time for which the failure continues.(3) As soon as practicable after a supplementary fire safety statement is issued, the owner of the building to which it relates—(a) must cause a copy of the statement (together with a copy of the current fire safety schedule) to be given to the Fire Commissioner, and(b) must cause a further copy of the statement (together with a copy of the current fire safety schedule) to be prominently displayed in the building.(4) Subclause (3)(b) ceases to apply to a supplementary fire safety statement only when every critical fire safety measure with which it deals has become the subject of a later fire safety certificate or fire safety statement.cl 180: Am 2002 No 134, Sch 2.1 [26].
181 Form of fire safety statements
(cf clause 80GE of EP&A Regulation 1994)
(1) A fire safety statement for a building or part of a building must be made in the form approved by the Planning Secretary and must contain the following information—(a) the name and address of the owner of the building or part,(b) a description of the building or part (including its address),(c) a list identifying—(i) each essential fire safety measure in the building or part (for an annual statement), ortogether with the minimum standard of performance specified in the relevant fire safety schedule in relation to each such measure,(ii) each critical fire safety measure in the building or part (for a supplementary statement),(d) the date or dates on which the essential fire safety measures were assessed,(e) the date on which the building or part was inspected,(f) the type of statement being issued (that is, annual or supplementary),(g) a statement to the effect referred to in clause 175 (for an annual statement) or clause 178 (for a supplementary statement),(h) the date on which the statement is issued.(i) the name and contact details of the person who issued the statement,(j) the name and contact details of the competent fire safety practitioner who endorsed the statement.(2) A fire safety statement for a building or part of a building must be accompanied by a fire safety schedule for the building or part.cl 181: Am 2017 (307), Sch 1 [23] [24].
Division 6 Fire safety maintenance
182 Essential fire safety measures to be maintained
(cf clause 80GF of EP&A Regulation 1994)
(1) The owner of a building to which an essential fire safety measure is applicable must not fail to maintain each essential fire safety measure in the building premises—(a) in the case of an essential fire safety measure applicable by virtue of a fire safety schedule, to a standard no less than that specified in the schedule, or(b) in the case of an essential fire safety measure applicable otherwise than by virtue of a fire safety schedule, to a standard no less than that to which the measure was originally designed and implemented.(2) As soon as practicable after receiving a request in that regard from the owner of a building to which an essential fire safety measure is applicable otherwise than by virtue of a fire safety schedule, the council must provide the owner with a schedule of the essential fire safety measures for the building premises.
Division 7 Miscellaneous fire safety offences
183 Fire safety notices
(cf clause 80GG of EP&A Regulation 1994)
(1) If—(a) a building’s fire exit includes any fire-isolated stairway, passageway or ramp, andthe occupier of the part of the premises adjacent to the stairway, passageway or ramp is guilty of an offence.(b) a notice in the form at the end of this clause is not at all times displayed in a conspicuous position adjacent to a doorway providing access to, but not within, that stairway, passageway or ramp,(2) The words “OFFENCE RELATING TO FIRE EXITS” in the notice referred to in subclause (1)(b) must be in letters at least 8 millimetres high, and the remaining words must be in letters at least 2.5 millimetres high.(3) A notice in the form prescribed under the Local Government Act 1919 or the Local Government Act 1993 for the purposes of a provision corresponding to this clause is taken to comply with the requirements of this clause.
184 Fire exits
(cf clause 80GH of EP&A Regulation 1994)
A person must not—(a) place anything that may impede the free passage of persons—(i) in a stairway, passageway or ramp serving as or forming part of a building’s fire exit, or(ii) in a path of travel leading to a building’s fire exit, or(b) interfere with, or cause obstruction or impediment to, the operation of any fire doors providing access to a stairway, passageway or ramp serving as or forming part of a building’s fire exit, or(c) remove, damage or otherwise interfere with a notice referred to in clause 183.cl 184: Am 2015 (424), Sch 1 [3].
185 Doors relating to fire exits
(cf clause 80GI of EP&A Regulation 1994)
A person must not—(a) without lawful excuse, interfere with, or cause obstruction or impediment to, the operation of any door that—(i) serves as or forms part of a building’s fire exit, or(ii) is situated in a path of travel leading to a building’s fire exit, or(b) without lawful excuse, obstruct any doorway that—(i) serves as or forms part of a building’s fire exit, or(ii) is situated in a path of travel leading to a building’s fire exit.cl 185: Am 2015 (424), Sch 1 [4].
186 Paths of travel to fire exits
(cf clause 80GJ of EP&A Regulation 1994)
The owner of a building—(a) must ensure that—(i) any stairway, passageway or ramp serving as or forming part of a building’s fire exit, andis kept clear of anything that may impede the free passage of persons, and(ii) any path of travel leading to a building’s fire exit,(b) must ensure that the operation of any door that—(i) serves as or forms part of a building’s fire exit, oris not interfered with, or otherwise obstructed or impeded, except with lawful excuse, and(ii) is situated in a path of travel leading to a building’s fire exit,(c) must ensure that any notice required by clause 183 to be displayed is so displayed.cl 186: Am 2015 (424), Sch 1 [5].
Division 7A Smoke Alarms
pt 9, div 7A: Ins 2006 (89), Sch 1 [4].
186A Owners of existing buildings and dwellings must ensure smoke alarms are installed
(1) Despite any other provision of this clause, this clause does not apply to any of the following—(a) those buildings or parts of a building in which smoke alarms or smoke detection and alarm systems are installed, or are required to be installed, in accordance with a requirement under the Act or any other Act or law (including an order or a condition of an approval),Note—An example of a requirement under the Act is an order under section 121B of the Act requiring the installation of smoke alarms or smoke detection and alarm systems.(b) those buildings or parts of buildings occupied by a public authority, but only if the Minister responsible for the public authority has determined, by order published in the Gazette, that those buildings or parts of buildings are not to be subject to this clause,(c) buildings in which no person sleeps.(2) The owner of a class 1a building or relocatable home must ensure that the building or home is equipped with smoke alarms that are located, on or near the ceiling—(a) in any storey of the building or home containing bedrooms—in every corridor or hallway associated with a bedroom, and if there is no such corridor or hallway associated with a bedroom, between that part of the building or home containing the bedroom and the remainder of the building or home, and(b) in any other storey of the building not containing bedrooms.(3) The owner of a class 1b building must ensure that the building is equipped with smoke alarms that are located, on or near the ceiling—(a) in any storey of the building containing bedrooms—(i) in every bedroom, and(ii) in every corridor or hallway associated with a bedroom, and if there is no such corridor or hallway associated with a bedroom, between each part of the building containing the bedroom and the remainder of the building, and(b) in any other storey of the building not containing bedrooms.(4) The owner of a dwelling within a class 2 building or, that is a class 4 part of a building, must ensure that the dwelling is equipped with smoke alarms that are located, on or near the ceiling—(a) in any storey of the dwelling containing bedrooms—in every corridor or hallway associated with a bedroom, and if there is no such corridor or hallway associated with a bedroom, between each part of the dwelling containing the bedroom and the remainder of the dwelling, and(b) in any other storey of the dwelling not containing bedrooms.(5) The owner of a class 3 building must ensure that—(a) each sole-occupancy unit, in any storey of the unit containing bedrooms, is equipped with smoke alarms that are located, on or near the ceiling in every corridor or hallway associated with a bedroom, and if there is no such corridor or hallway associated with a bedroom, between each part of the unit containing the bedroom and the remainder of the unit, and(b) each sole-occupancy unit, in any storey of the unit not containing bedrooms, is equipped with smoke alarms that are located on or near the ceiling, and(c) if the building does not have a functioning sprinkler system, each habitable room not within a sole-occupancy room, each public corridor and any other internal public space is equipped with smoke alarms that are located in those places where AS 1670.1 requires smoke detectors to be located.(6) The owner of a class 9a building that is a health care building must ensure that each patient care area, each public corridor and any other internal public space associated with a patient care area, are equipped with smoke alarms that are located in those places where AS 1670.1 requires smoke detectors to be located.(7) Despite subclauses (2), (4) and (5), the owner of a dwelling or unit that consists substantially of a single room (containing sleeping facilities and other facilities) satisfies the requirements of subclauses (2), (4) and (5)(a) and (b) if he or she ensures that the dwelling or unit is equipped with a smoke alarm that is located on or near the ceiling between the sleeping facilities and the rest of the dwelling or unit.(8) An order under subclause (1)(b) may specify a particular building or part of a building or a class of buildings or parts of buildings.(9) In this clause—approval means any consent, licence, permit, permission or authorisation that is required, under an Act or law, to be obtained before development may be carried out.AS 1670.1 means AS 1670.1—2004, Fire detection, warning, control and intercom systems—System design, installation and commissioning—Part 1: Fire as in force from time to time.class 1a building means, in relation to a building that forms part of a strata scheme, the lot containing a dwelling within the building.health care building means a building (other than a clinic, day surgery, day procedure unit or medical centre) occupied by persons receiving full-time care or patients undergoing medical treatment, being persons of a kind who generally require physical assistance to evacuate the building in an emergency, and includes the following—(a) a nursing home,(b) a facility under the control of a public health organisation within the meaning of the Health Services Act 1997,(c) a private health facility licensed under the Private Health Facilities Act 2007.nursing home means a facility at which a high level of residential care (within the meaning of the Aged Care Act 1997 of the Commonwealth) is provided.order means an order made under the Act or any other Act or law.patient care area has the same meaning as it has in the Building Code of Australia but does not include any bathroom, ensuite bathing area or toilet area.relocatable home means—(a) a manufactured home, orbut does not include a tent, caravan or campervan or any moveable dwelling that is a vehicle of a kind that is capable of being registered within the meaning of the Road Transport Act 2013.(b) any other moveable dwelling (whether or not self-contained) that comprises one or more major sections, including any associated structure that forms part of the dwelling,sole-occupancy unit has the same meaning as it has in the Building Code of Australia.cl 186A: Ins 2006 (89), Sch 1 [4]. Am 2007 No 9, Sch 5.8; 2013 No 19, Sch 4.20 [1].
186AA Owners of moveable dwellings must ensure smoke alarms are installed
(1) This clause does not apply to any of the following—(a) a moveable dwelling in which no person sleeps,(b) a moveable dwelling to which clause 186A applies.(2) The owner of a moveable dwelling must ensure—(a) that the dwelling is equipped with a smoke alarm that is located on or near the ceiling between that part of the dwelling in which persons sleep and the remainder of the dwelling, and(b) that the smoke alarm installed in the dwelling is repaired or replaced as soon as reasonably practicable after the owner becomes aware that the smoke alarm is not functioning properly.(3) This clause applies whether or not the moveable dwelling is a vehicle of a kind that is capable of being registered within the meaning of the Road Transport Act 2013.(4) In this clause—annexe, campervan, caravan, holiday van, and park van have the same meanings as they have in the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005.associated structure has the same meaning as in the Local Government Act 1993.moveable dwelling includes the following—(a) campervans,(b) caravans,(c) holiday vans,(d) park vans,(e) annexes,(f) associated structures,but does not include—(g) any other type of van or portable device used for human habitation,(h) a tent or structure that has two or more walls and a roof or ceiling primarily constructed of flexible fabric or plastic material, or(i) a manufactured home, or(j) a relocatable home.relocatable home has the same meaning as in clause 186A(9) of this Regulation.cl 186AA: Ins 2010 (759), Sch 1 [10]. Am 2013 No 19, Sch 4.20 [2].
186B Specifications for smoke alarms
(1) A smoke alarm installed under this Division is to be functioning and is to comply with the requirements of AS 3786.(1A) A smoke alarm installed in a moveable dwelling under clause 186AA must be fitted with a hush button (being a button designed to silence false alarms).(2) Despite the requirements of AS 3786, a smoke alarm that is required under clause 186A to be installed in a class 1b, class 3 or class 9a building is to be powered—(a) from the mains electricity supply, or(b) by a non-removable battery with a minimum life expectancy of 10 years that is connected to the smoke alarm.Note—AS 3786 permits smoke alarms to be powered by batteries or mains electricity supply. Smoke alarms in buildings that are relocatable homes or class 1a or class 2 buildings or class 4 parts of buildings will be able to use any of the power sources specified by AS 3786.(3) Despite any other provision of this Division, a heat alarm may be used in the place of a smoke alarm in any kitchen or other area where it is likely to be inappropriately activated, other than in a moveable dwelling to which clause 186AA applies.(4) In this clause—AS 3786 means AS 3786—1993, Smoke alarms as in force from time to time.(5) A functioning smoke alarm installed in a class 1a or class 2 building, a relocatable home or a class 4 part of a building before the commencement of this clause is taken to comply with the requirements of this clause until such time as the alarm is removed or ceases to function.(6) A functioning smoke alarm installed in a moveable dwelling to which clause 186AA applies before the commencement of that clause is taken to comply with the requirements of this clause until such time as the alarm is removed or ceases to function.cl 186B: Ins 2006 (89), Sch 1 [4]. Am 2010 (759), Sch 1 [11]–[13].
186C Persons must not remove or interfere with smoke alarms
(1) A person must not, without reasonable excuse, remove or interfere with the operation of a smoke alarm or heat alarm that has been installed in a building in which persons sleep.(1A) A person must not, without reasonable excuse, remove or interfere with the operation of a smoke alarm that has been installed in a moveable dwelling to which clause 186AA applies.(2) Without limiting subclause (1), a person does not commit an offence under this clause if the person removes or interferes with the operation of a smoke alarm or heat alarm to repair, maintain or replace the smoke alarm or heat alarm.(3) This clause applies to alarms installed before or after the commencement of this Division.cl 186C: Ins 2006 (89), Sch 1 [4]. Am 2010 (759), Sch 1 [14].
186D No development consent or consent of owners corporation required to install smoke alarms
(1) Development consent under Part 4 of the Act and the consent of an owners corporation is not required to install a smoke alarm or heat alarm.(2) Subclause (1) is subject to the condition that, in circumstances where the installation of a smoke alarm or heat alarm causes damage to any part of common property, the person who installs the alarm must repair the damage.(3) In this clause—common property and owners corporation have the same meanings that they have in the Strata Schemes Management Act 1996.cll 186D–186F: Ins 2006 (89), Sch 1 [4].
186E Smoke alarms and heat alarms in certain existing buildings taken to be essential fire services
(1) This clause applies to a building for which a fire safety schedule is issued before the commencement of this clause.(2) A smoke alarm or heat alarm installed under this Division is taken to be an essential fire safety measure that is specified in the fire safety schedule for the building for the purposes of this Part (other than clauses 175(a)(i) and 182(1)(a)).(3) Clauses 175(a)(ii) and 182(1)(b) apply to a smoke alarm or heat alarm taken to be an essential fire safety measure under this clause.cll 186D–186F: Ins 2006 (89), Sch 1 [4].
186F Transitional provisions relating to obligations under this Division
(1) A legal obligation under clause 186A to install a smoke alarm does not arise until 6 months after the commencement of this Division.(2) A person is not liable for an offence under this Division (other than an offence under clause 186C) in respect of any act or omission that occurs within 6 months after the commencement of this Division.(3) However, subclause (2) does not apply to any failure to comply with the requirements of this Division that continues after 6 months after that commencement.cll 186D–186F: Ins 2006 (89), Sch 1 [4].
186G Transitional provisions relating to obligations under clause 186AA
A legal obligation under clause 186AA to install a smoke alarm does not arise until 6 months after the commencement of that clause.Note—This provides the owner of an existing moveable dwelling with a 6 month grace period before being legally obliged to install a smoke alarm in the dwelling.cl 186G: Ins 2010 (759), Sch 1 [15].
Division 7B Fire sprinklers in certain residential aged care facilities
pt 9, div 7B: Ins 2012 (668), Sch 1 [4].
186H Definitions
(1) In this Division—approved provider means a person who is an approved provider within the meaning of the Aged Care Act 1997 of the Commonwealth on 1 January 2013 (whether or not the person ceases to be such an approved provider after that date).Fire Sprinkler Standard means the technical standard entitled Fire Sprinkler Standard dated as in force from time to time and approved by the Planning Secretary.Implementation Committee means the Fire Sprinkler System Implementation Committee constituted under clause 186Q.nominated completion date, for a facility—see clause 186K.required completion date, for a facility, means the date by which a person who operates the facility is required by this Division to install a fire sprinkler system in the facility.(2) The Fire Sprinkler Standard is to be made publicly available on the website of the Department.cl 186H: Ins 2012 (668), Sch 1 [4]. Am 2014 (45), cl 3 (1).
186I Application
This Division applies to a facility at which residential care (within the meaning of the Aged Care Act 1997 of the Commonwealth) was provided immediately before 1 January 2013, but does not apply to—(a) a facility in which a fire sprinkler system was installed before 1 January 2013, or(b) a facility in which a fire sprinkler system is required to be installed in accordance with the Act or any other Act or law (including an order or a condition of a development consent), where the requirement arose before 1 January 2013.cll 186I–186N: Ins 2012 (668), Sch 1 [4].
186J Requirement to install fire sprinkler systems
(1) An approved provider that operates a facility to which this Division applies must install a fire sprinkler system in the facility before—(a) the nominated completion date for the facility, or(b) if the required completion date has been postponed to a later date under clause 186L—that later date.(2) A person who begins to operate a facility to which this Division applies after 1 January 2013 must install the fire sprinkler system in the facility before—(a) the earlier of the following dates—(i) the nominated completion date for the facility (if any),(ii) the date that is 12 months after the person begins operating the facility, or(b) if the required completion date has been postponed to a later date under clause 186L—that later date.cll 186I–186N: Ins 2012 (668), Sch 1 [4].
186K Nominated completion date
(1) An approved provider that operates a facility to which this Division applies must, before 1 March 2013, nominate one of the following dates as the date by which the approved provider will install the fire sprinkler system in the facility (the nominated completion date)—(a) 1 September 2014,(b) 1 March 2016.(2) A nomination under this clause is to be made by giving notice in writing of the nominated completion date to the Implementation Committee. That notice is to—(a) state the nominated completion date, and(b) include—(i) the name of the approved provider, and(ii) the name and address of the facility, and(iii) details of the residential care provided at the facility, and(c) in relation to a nomination of 1 September 2014 as the nominated completion date—(i) describe any work completed for the purposes of the installation, and(ii) provide an estimate of the date by which the installation will be completed, and(d) otherwise be in the form approved by the Planning Secretary.(3) A notice under subclause (2) may relate to more than one facility.cll 186I–186N: Ins 2012 (668), Sch 1 [4].
186L Postponement of required completion date for installation
(1) A person who operates a facility to which this Division applies may apply once to the Implementation Committee for a postponement of the facility’s required completion date.(2) An application under this clause made by an approved provider must be made before—(a) in relation to a facility for which the nominated completion date is 1 September 2014—1 March 2014, and(b) in relation to a facility for which the nominated completion date is 1 March 2016—1 March 2015.(3) An application under this clause made by a person who began operating the facility concerned after 1 January 2013 must be made before the existing required completion date for the facility.(4) An application under this clause is to be in the form approved by the Implementation Committee.(5) The Implementation Committee may postpone the required completion date for the installation of the fire sprinkler system in the facility by a period of—(a) in relation to a facility for which the nominated completion date is 1 September 2014 (other than a facility to which clause 186J(2) applies)—up to 6 months, and(b) in any other case—up to 1 year.(6) In determining whether to grant such a postponement, the Implementation Committee is to consider—(a) whether the applicant has substantially complied with the implementation plan for the facility (if any), and(b) whether, if the application were to be refused, the requirement under this Division to complete the installation by the existing required completion date would create such a significant financial burden on the applicant that the provision of residential care at the facility may suffer, and(c) any other matter that the Committee considers relevant.(7) A postponement may be granted unconditionally or subject to conditions (including conditions requiring that other fire safety measures be implemented and maintained until the fire sprinkler system is installed).cll 186I–186N: Ins 2012 (668), Sch 1 [4].
186M Fire sprinkler systems to be installed in accordance with the Fire Sprinkler Standard
A fire sprinkler system must be installed in accordance with the Fire Sprinkler Standard.cll 186I–186N: Ins 2012 (668), Sch 1 [4].
186N Final occupation certificate to be provided to Implementation Committee
A person who is required by this Division to install a fire sprinkler system in a facility must, before the relevant required completion date, provide the Implementation Committee with a final occupation certificate to show that the fire sprinkler system has been installed in the facility.cll 186I–186N: Ins 2012 (668), Sch 1 [4].
186O Installation of fire sprinkler systems in facilities with 1 March 2016 as nominated completion date
(1) If an approved provider of a facility nominated 1 March 2016 as the nominated completion date for the facility, the approved provider must—(a) before 1 September 2013, provide an implementation plan to the Implementation Committee, and(b) before 1 March 2014 (and every 1 September and 1 March after that date unless the fire sprinkler system has been installed), provide a progress report to the Implementation Committee.(2) An implementation plan is to—(a) specify details of the proposed installation of the fire sprinkler system (including any approvals required for the installation), and(b) describe any work completed for the purposes of the installation, and(c) provide an estimate of the date by which the installation will be completed, and(d) specify the capital investment value of installing the fire sprinkler system, and(e) be in a form approved by the Implementation Committee, and(f) include any other information that the Implementation Committee directs (in its approved form) is to be included in the plan.(3) A progress report is to—(a) specify any changes to information provided to the Implementation Committee in the implementation plan or an earlier progress report, and(b) be in a form approved by the Implementation Committee.(4) In this clause, approval means an approval under the Act and includes a development consent, a complying development certificate or any other certificate under Part 6 of the Act.cl 186O: Ins 2012 (668), Sch 1 [4]. Am 2018 (66), Sch 2 [22].
186P Notices relating to residential aged care facilities without fire sprinkler systems
(1) A person who is required by this Division to install a fire sprinkler system in a facility must, until that fire sprinkler system is installed, display a notice in accordance with this clause.(2) The notice must—(a) state that the facility does not have a fire sprinkler system installed, and(b) specify the date by which this Division requires that a fire sprinkler system be installed in the facility, and(c) be in the form approved by the Planning Secretary.(3) The notice must be displayed—(a) in a prominent position at the principal pedestrian entrance to the facility, and(b) on the website (if any) of the person, or of any related body corporate of the person (within the meaning of the Corporations Act 2001 of the Commonwealth), that relates to the facility.(4) This clause has effect from 30 April 2013.cl 186P: Ins 2012 (668), Sch 1 [4].
186Q Implementation Committee
(1) The Planning Secretary is to constitute a Fire Sprinkler System Implementation Committee (the Implementation Committee).(2) The Implementation Committee is to consist of not more than 6 persons appointed by the Planning Secretary, of whom—(a) one is to be appointed as Chairperson of the Committee, and(b) one is to be a person employed in the Department, and(c) one is to be a person employed in Fire and Rescue NSW, nominated by the Commissioner of Fire and Rescue NSW, and(d) one is to have expertise or experience in the aged care industry, and(e) one is to have expertise or experience in fire protection system design and installation, and(f) one is to have expertise or experience in representing seniors in community organisations.(3) The Implementation Committee has the following functions—(a) determining the form of implementation plans and progress reports under this Division,(b) reviewing those implementation plans and progress reports,(c) publishing those implementation plans and progress reports (but excluding statements of the capital investment value of installing a fire sprinkler system) on the Department’s website,(d) determining applications for the postponement of the required completion dates for the installation of fire sprinkler systems in residential care facilities,(e) monitoring the progress of the installation of fire sprinkler systems in accordance with this Division,(f) any other function conferred or imposed on the Committee by this Regulation or any other law.(4) A member of the Implementation Committee—(a) holds office for such term as is determined by the Planning Secretary, and(b) ceases to hold office in such circumstances as are determined by the Planning Secretary, and(c) is entitled to such remuneration, if any, and to the payment of such expenses, if any, as are determined by the Planning Secretary, and(d) holds office subject to such conditions as are determined by the Planning Secretary.(5) The procedure at meetings of the Implementation Committee is to be determined by the Planning Secretary or, in the absence of any such determination, by the Committee.(6) The quorum at a meeting of the Implementation Committee is a majority of the members for the time being of the Committee.(7) The Implementation Committee is to provide the Planning Secretary with the following—(a) an annual report of the Committee’s operations during the preceding year by 1 March in every calendar year,(b) any other information or report that is requested by the Planning Secretary.(8) The Planning Secretary must, as soon as is reasonably practical after receiving the Implementation Committee’s annual report—(a) provide a copy of that report to the Minister and the Minister for Ageing, and(b) publish a copy of that report on the Department’s website.cl 186Q: Ins 2012 (668), Sch 1 [4]. Am 2014 (45), cl 3 (2); 2015 No 15, Sch 3.26 [9].
186R Applications for complying development certificates and construction certificates for installation of fire sprinkler systems
An application for a complying development certificate or a construction certificate for the installation of a fire sprinkler system in a facility to which this Division applies must contain the following information and be accompanied by the following documents—(a) building work plans that show—(i) the location of the key components of the system (including sprinkler heads, valves, pumps, boosters and test connections) and associated alarm signalling equipment, and(ii) the layout of pipework associated with the system, and(iii) any other building work that is necessary to install the fire sprinkler system (including fire separation works),(b) the specifications of—(i) the fire sprinkler system to be installed (including the flow and pressure of the water supply), and(ii) any other building work that is necessary to install the fire sprinkler system.cl 186R: Ins 2012 (668), Sch 1 [4].
Division 7C Identification of certain buildings with external combustible cladding
Note—
Clause 167(1)(c) provides that this Division applies only to class 2, class 3 and class 9 buildings of 2 or more storeys and to any class 4 part of a class 9 building of 2 or more storeys.
pt 9, div 7C (Cll 186S–186U): Ins 2018 (499), Sch 1 [5].
186S Certain building owners must provide registration details of building and its cladding
(1) The owner of a building that has external combustible cladding must provide the Planning Secretary with details about the building and its cladding.(2) The following details are required to be provided under this clause—(a) the name and address of the owner of the building,(b) the address of the building,(c) the classification of the building under the Building Code of Australia,(d) the number of storeys in the building, above and below ground,(e) a description of any external combustible cladding applied to the building, including the materials comprising the cladding,(f) a description of the extent of application of external combustible cladding to the building and the parts of the building to which it is applied.(3) Those details must be provided—(a) in the case of a building that was or had been occupied before this clause commenced—on or before 22 February 2019, or(b) in any other case—within 4 months after the building is first occupied.(4) Those details must be provided through the NSW planning portal, unless the Planning Secretary agrees in writing that they may be provided in another manner.(5) Despite subclause (1), if the owner of the building has been given a direction under clause 186T that requires details to be provided, the owner is not required to comply with this clause.pt 9, div 7C (Cll 186S–186U): Ins 2018 (499), Sch 1 [5].
186T Building owner may be directed to provide registration details of building and its cladding
(1) The owner of a building may be directed in writing to provide the Planning Secretary with details about the building and any external combustible cladding that has been applied to it.(2) Such a direction may be given only by—(a) the Minister or the Planning Secretary, but only in connection with a building the erection of which was State significant development, State significant infrastructure or any other development for which the Minister, the Planning Secretary or the Independent Planning Commission is or was the consent authority, or(b) an authorised fire officer, or(c) the council for the area in which the building is located.(3) The following details are required to be provided under this clause—(a) the name and address of the owner of the building,(b) the address of the building,(c) the classification of the building under the Building Code of Australia,(d) the number of storeys in the building, above and below ground,(e) a description of the external combustible cladding applied to the building, including the materials comprising the cladding,(f) a description of the extent of application of external combustible cladding to the building and the parts of the building to which it is applied.(4) A person who has been directed to provide details under this clause must ensure that the details are provided before the date specified in the direction, which must be at least 14 days after the direction is given.(5) Those details must be provided through the NSW planning portal, unless the Planning Secretary agrees in writing that they may be provided in another manner.(6) An authorised fire officer or council must notify the Planning Secretary of any direction given by the officer or council under this clause.pt 9, div 7C (Cll 186S–186U): Ins 2018 (499), Sch 1 [5].
186U Register of buildings that have external combustible cladding
(1) The Planning Secretary may establish and maintain a register of buildings that have external combustible cladding.(2) The register may contain—(a) any details provided to the Planning Secretary by the owner of a building under this Division, and(b) any other information that the Planning Secretary considers appropriate.(3) The Planning Secretary may do any or all of the following—(a) make the register, or any part of it, available to Fire and Rescue NSW, any council, or any other person,(b) make the register, or any part of it, available to the public,(c) publish the register, or any part of it, on a website maintained by the Department.pt 9, div 7C (Cll 186S–186U): Ins 2018 (499), Sch 1 [5].
Division 8 Miscellaneous
187 Modification and supplementation of Building Code of Australia standards
(cf clause 80H of EP&A Regulation 1994)
(1) This clause applies to development the subject of—(a) a development application or an application for a complying development certificate for the change of building use of an existing building where the application does not seek any alteration, enlargement or extension of the building, or(a1) (Repealed)(a2) a development application or an application for a complying development certificate for the use of a building as an entertainment venue, or(a3) (Repealed)(b) an application for a construction certificate for building work, other than building work associated with a change of building use referred to in paragraph (a).(2) The applicant in relation to development to which this clause applies may lodge with the consent authority or certifying authority an objection—(a) that the Building Code of Australia (as applied by or under clause 98 or 136A) does not make appropriate provision with respect to—(i) the building in relation to which the change of building use is sought, or(ia) the building proposed to be used as an entertainment venue, or(ib) (Repealed)(ii) the proposed building work, or(b) that compliance with any specified provision of the Building Code of Australia (as applied by or under clause 98 or 136A) is unreasonable or unnecessary in the particular circumstances of the case.Note—This clause does not authorise the making of an objection to a condition imposed on a development consent otherwise than by operation of clause 98 or 136A. So if a consent authority requires the provision of specified fire safety equipment, an objection to that requirement cannot be made merely because the requirement happens to be the same as a requirement imposed by the Building Code of Australia. Nor can it be made if the consent authority requires the development to be carried out in accordance with the Building Code of Australia, as the requirement then arises not from the Building Code of Australia (as applied by clause 98 or 136A) but from the Building Code of Australia (as applied by the terms of the condition).(3) In the case of an objection with respect to a Category 3 fire safety provision (as applied by or under clause 98 or 136A), the objection—(a) must indicate that a similar objection has been made to the Fire Commissioner, and(b) must be accompanied by a copy of the Fire Commissioner’s determination of the objection.(4) An objection may not be made with respect to a Category 1 fire safety provision (as applied by or under clause 98 or 136A) by an applicant in relation to development the subject of an application referred to in subclause (1)(a) or (a2) if the application has already been determined by the granting of development consent.(5) The applicant must specify the grounds of the objection and (in the case of proposed building work) must furnish the consent authority or certifying authority with a copy of the plans and specifications for the building work.(6) If the consent authority or certifying authority is satisfied that the objection is well founded, it may do either or both of the following—(a) it may exempt the development, either conditionally or unconditionally, from any specified provision of the Building Code of Australia (as applied by or under clause 98 or 136A),(b) it may direct that specified requirements are to apply to the proposed building work.(7) A consent authority or certifying authority may not take action under this clause except with the concurrence of the Planning Secretary.(8) The Planning Secretary—(a) may give the consent authority or certifying authority notice that concurrence may be assumed, in relation to any particular class of objections, subject to such conditions as are specified in the notice, and(b) may amend any such notice by a further notice given to that consent authority or certifying authority.(9) Action taken in accordance with a notice referred to in subclause (8) is as valid as it would be if the consent authority or certifying authority had obtained the concurrence of the Planning Secretary.(10) Concurrence is to be assumed if at least 40 days have passed since concurrence was sought and the Planning Secretary has not, within that period, expressly refused concurrence.(11) Any exemption or direction given by the consent authority or certifying authority under this clause must be given subject to, and must not be inconsistent with, any conditions to which the concurrence of the Planning Secretary is subject.(12) When granting development consent for development the subject of an application referred to in subclause (1)(a) or (a2), the consent authority must ensure that the terms of any condition referred to in subclause (6)(a) and any requirement referred to in subclause (6)(b)—(a) have been included in the plans and specifications for the building work or temporary structure, in the case of a condition whose terms are capable of being so included, or(b) are included in the conditions attached to the development consent, in the case of a condition whose terms are not capable of being so included.(13) When issuing a construction certificate for building work the subject of an application referred to in subclause (1)(b), the certifying authority must ensure that the terms of any condition referred to in subclause (6)(a) and any requirement referred to in subclause (6)(b)—(a) have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or(b) are included in the conditions attached to the certificate, in the case of a condition whose terms are not capable of being so included.(14) Compliance with the requirement that the terms of a condition be included in the plans and specifications for building work or a temporary structure is sufficiently complied with—(a) if the plans and specifications are redrawn so as to accord with those terms, or(b) if those terms are included by way of an annotation (whether by way of insertion, deletion or alteration) marked on the relevant part of those plans and specifications.cl 187: Am 2007 (496), Sch 1 [28]–[37]; 2009 (511), Sch 1 [25]–[32].
188 Exemption from fire safety standards
(cf clause 80I of EP&A Regulation 1994)
(1) This clause applies to development the subject of—(a) a development application or an application for a complying development certificate for the change of building use of an existing building where the application does not seek any alteration, enlargement or extension of the building, or(a1) (Repealed)(b) an application for a construction certificate for building work, other than building work associated with a change of building use referred to in paragraph (a).Note—This clause does not authorise the making of an objection to a condition imposed on a development consent otherwise than by operation of clause 98 or 136A. So if a consent authority requires the provision of specified fire safety equipment, an objection to that requirement cannot be made merely because the requirement happens to be the same as a requirement imposed by the Building Code of Australia. Nor can it be made if the consent authority requires the development to be carried out in accordance with the Building Code of Australia, as the requirement then arises not from the Building Code of Australia (as applied by clause 98 or 136A) but from the Building Code of Australia (as applied by the terms of the condition).(2) The applicant in relation to development to which this clause applies may lodge with the Fire Commissioner an objection that compliance with any specified Category 3 fire safety provision (as applied by clause 98 or 136A) is unreasonable or unnecessary in the particular circumstances of the case.(3) The applicant must specify the grounds of the objection and (in the case of proposed building work) must furnish the Fire Commissioner with a copy of the plans and specifications for the building work.(4) If the Fire Commissioner is satisfied that the objection is well founded, the Fire Commissioner may exempt the development, either conditionally or unconditionally, from any specified Category 3 fire safety provision (as applied by clause 98 or 136A).(5) When granting development consent for development the subject of an application referred to in subclause (1)(a), a consent authority must ensure that the terms of any condition referred to in subclause (4)—(a) have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or(b) are included in the conditions attached to the development consent, in the case of a condition whose terms are not capable of being so included.(6) When issuing a construction certificate for building work the subject of an application referred to in subclause (1)(b), a certifying authority must ensure that the terms of any condition referred to in subclause (4)—(a) have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or(b) are included in the conditions attached to the certificate, in the case of a condition whose terms are not capable of being so included.(7) Compliance with the requirement that the terms of a condition be included in the plans and specifications for building work is sufficiently complied with—(a) if the plans and specifications are redrawn so as to accord with those terms, or(b) if those terms are included by way of an annotation (whether by way of insertion, deletion or alteration) marked on the relevant part of those plans and specifications.cl 188: Am 2007 (496), Sch 1 [38]–[43]; 2009 (511), Sch 1 [33]–[35].
189 Fire brigades inspection powers
(cf clause 80J of EP&A Regulation 1994)
For the purposes of section 9.32(1)(b) of the Act, the following provisions are prescribed—(a) such of the provisions of Division 2A of Part 6 of the Act as relate to compliance with a fire safety order,(b) such of the provisions of clauses 172(1)(b), 177(3)(b), 180(3)(b) and 182(2) as relate to the implementation, maintenance or certification of essential fire safety measures for building premises,(c) such of the provisions of Division 7 as relate to fire safety notices, fire exits, doors relating to fire exits and paths of travel to fire exits,(d) such of the provisions of Division 7B as relate to the installation of fire sprinkler systems.cl 189: Am 2012 (668), Sch 1 [5]; 2015 (424), Sch 1 [6]; 2018 (66), Sch 2 [22].
190 Offences relating to certain Crown property
(cf clause 80K of EP&A Regulation 1994)
No proceedings may be taken for an offence under this Part with respect to a building—(a) that is situated on Crown managed land within the meaning of the Crown Land Management Act 2016, orexcept with the consent of the Minister given after consultation with the Minister administering the Crown Land Management Act 2016.(b) that is a School of Arts or Mechanics Institute,cl 190: Am 2017 No 17, Sch 4.28 [1] [2].
190A Complying development certificates and construction certificates for installation of fire sprinkler systems in residential care facilities for seniors
(1) A certifying authority must not issue a complying development certificate or a construction certificate for building work that involves the installation of a fire sprinkler system in a residential care facility for seniors unless the certifying authority is satisfied that the system will comply with the Fire Sprinkler Standard within the meaning of Division 7B as in force when the application for the certificate was made.(2) In this clause, residential care facility for seniors has the same meaning as in State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.cl 190A: Ins 2012 (668), Sch 1 [6]. Am 2014 (45), cl 3 (3).
190B Plans and specifications for certain fire safety systems must be kept on site
(1) The principal contractor for building work must ensure that the most recently endorsed copy of the plans and specifications for any relevant fire safety system for the building that were required, by conditions under clause 136AA or 146B, to be submitted to the principal certifying authority—(a) are kept on the site of the building work, and(b) are made available for inspection on request by the certifying authority, consent authority, council and Fire and Rescue NSW at the times during which the building work is carried out.(2) In this clause—relevant fire safety system means any of the following—(a) a hydraulic fire safety system within the meaning of clause 165,(b) a fire detection and alarm system,(c) a mechanical ducted smoke control system.cl 190B: Ins 2017 (307), Sch 1 [25].
Part 10 State significant infrastructure
pt 10: Rep 2005 No 115, Sch 3.3 [9]. Ins 2011 (510), Sch 2 [41].
pt 10, div 1: Rep 2005 No 115, Sch 3.3 [9].
191 Interpretation
(1) Words and expressions used in this Part have the same meaning as they have in Division 5.2 of the Act.(2) For the purposes of the definition of infrastructure in section 5.11 of the Act, if a single proposed development comprises development that is only partly infrastructure, the remainder of the development (for whatever purposes) is also infrastructure.cll 191–193: Rep 2005 No 115, Sch 3.3 [9]. Ins 2011 (510), Sch 2 [41]. Am 2018 (66), Sch 2 [22].
192 Applications for approval
(1) An application for approval of the Minister to carry out State significant infrastructure must include—(a) details of any approvals that would, but for section 5.23 of the Act, be required for the carrying out of the State significant infrastructure, and(b) details of any authorisations that must be given under section 5.24 of the Act if the application is approved, and(c) a statement as to the basis on which the proposed infrastructure is State significant infrastructure including, if relevant, the capital investment value of the proposed infrastructure.(2) An application may, with the approval of the Planning Secretary, be amended at any time before the application is determined.(3) The Planning Secretary is not to approve any such amendment unless satisfied that written particulars have been provided that sufficiently identify the nature of any proposed amendments to the State significant infrastructure.cll 191–193: Rep 2005 No 115, Sch 3.3 [9]. Ins 2011 (510), Sch 2 [41]. Am 2018 (66), Sch 2 [22].
193 Owner’s consent or notification
(1) Consent of land owner The consent of the owner of the land on which State significant infrastructure is to be carried out is required for an infrastructure application or modification request unless the application or request relates to any of the following—(a) State significant infrastructure proposed to be carried out by a proponent that is a public authority,(b) critical State significant infrastructure,(c) State significant infrastructure comprising any one or more of the following—(i) linear transport infrastructure,(ii) utility infrastructure,(iii) infrastructure on land with multiple owners designated by the Planning Secretary for the purposes of this clause by notice in writing to the person making the application or request.(2) Consent may be obtained at any time before the determination of the application or request.(3) The consent of the New South Wales Aboriginal Land Council is required for an infrastructure application or modification request relating to land owned by a Local Aboriginal Land Council if the application requires the consent of the Local Aboriginal Land Council as owner of the land.(4) Notification if consent not required If the consent of the owner of the land is not required for an infrastructure application or modification request under this clause, the proponent is required to give notice of the application or request—(a) by written notice to the owner of the land before, or no later than 14 days after, the application or request is made, or(b) by advertisement published in a newspaper circulating in the area in which the infrastructure is to be carried out—(i) in the case of an infrastructure application—at least 14 days before the environmental impact statement that relates to the infrastructure is placed on public exhibition, or(ii) in the case of a modification request—no later than 14 days after the request is made.(5) In this clause—modification request means a request under section 5.25 of the Act for the modification of the Minister’s approval.cll 191–193: Rep 2005 No 115, Sch 3.3 [9]. Ins 2011 (510), Sch 2 [41]. Am 2018 (66), Sch 2 [22].
193A EIS for infrastructure on land within 200km of Siding Spring Observatory
For the purposes of section 5.29(e) of the Act, a proponent must, when preparing an environmental impact statement for State significant infrastructure on land less than 200 kilometres from the Siding Spring Observatory, take into consideration the Dark Sky Planning Guideline.cl 193A: Ins 2016 (303), Sch 1 [10]. Am 2018 (66), Sch 2 [22].
194 (Repealed)
cl 194: Rep 2005 No 115, Sch 3.3 [9]. Ins 2011 (510), Sch 2 [41]. Rep 2018 (500), Sch 2 [43].
195 Planning Secretary’s environmental assessment report
(1) The Planning Secretary is to complete the report under section 5.18 of the Act in relation to State significant infrastructure within 90 days after the end of the public exhibition period for the environmental impact statement to which the report relates.(2) The 90-day period does not include time during which the Planning Secretary, after having issued a requirement to the proponent under section 5.17(6), is awaiting a response or a preferred infrastructure report.cll 195–197: Rep 2005 No 115, Sch 3.3 [9]. Ins 2011 (510), Sch 2 [41]. Am 2018 (66), Sch 2 [22].
196 Publicly available documents
(1) For the purposes of section 5.28(1) of the Act, the documents are to be made publicly available on the Department’s website or by providing, on that website, an electronic link to the document on another website.(2) For the purposes of section 5.28(1)(i) of the Act, submissions made under section 5.17 or the report of the issues raised in those submissions provided under section 5.17(5), are prescribed.cll 195–197: Rep 2005 No 115, Sch 3.3 [9]. Ins 2011 (510), Sch 2 [41]. Am 2018 (66), Sch 2 [22].
197 Surrender of approvals or existing use rights
(1) For the purposes of section 5.28(4) of the Act, a surrender of an approval for State significant infrastructure or of a right conferred by Division 10 of Part 4 of the Act is to be made by giving to the Planning Secretary a notice in writing of the surrender of the approval or right.(2) The notice must contain the following information—(a) the name and address of the person by whom the notice is given,(b) the address, and formal particulars of title, of the land to which the approval or right relates,(c) a description of the approval or right to be surrendered,(d) if the person giving notice is not the owner of the land, a statement by the owner of the land to the effect that the owner consents to the surrender of the approval or right.(3) A duly signed and delivered notice of surrender of an approval or right conferred by Division 10 of Part 4 of the Act takes effect on the date determined by the Planning Secretary and operates, according to its terms, to surrender the approval or right to which it relates.cll 195–197: Rep 2005 No 115, Sch 3.3 [9]. Ins 2011 (510), Sch 2 [41]. Am 2018 (66), Sch 2 [22].
198 Erection and occupation of buildings and subdivision of land
(1) In this clause, a relevant provision means section 6.6, 6.12 or 6.9 or any other provision of the Act relating to the issue of subdivision certificates.(2) For the purposes of section 5.22(5) of the Act, a relevant provision applies to approved State significant infrastructure in the same way as it applies to development subject to a development consent, subject to any necessary modifications. For that purpose, a reference in section 6.6, section 6.12 or Part 6 of the Act to a development consent is taken to include a reference to an approval of State significant infrastructure under Division 5.2 of the Act.(3) However, a relevant provision—(a) does not apply unless that provision would have applied if the development was not State significant infrastructure, and(b) applies to critical State significant infrastructure only if the Minister, when giving approval to the infrastructure under Division 5.2 of the Act, makes it a condition of that approval that the provision applies.cl 198: Rep 2005 No 115, Sch 3.3 [9]. Ins 2011 (510), Sch 2 [41]. Am 2012 (346), Sch 2 [3]–[5]; 2018 (66), Sch 2 [22].
199–205 (Repealed)
cl 199: Rep 2005 No 115, Sch 3.3 [9].
pt 10, div 2: Rep 2005 No 115, Sch 3.3 [9].
cl 200: Am 2003 No 95, Sch 2.1 [39]; 9.7.2004. Rep 2005 No 115, Sch 3.3 [9].
cl 201: Am 2003 No 95, Sch 2.1 [40]; 9.7.2004. Rep 2005 No 115, Sch 3.3 [9].
cl 202: Am 2003 No 95, Sch 2.1 [41]. Rep 2005 No 115, Sch 3.3 [9].
cl 203: Rep 2005 No 115, Sch 3.3 [9].
pt 10, div 3: Rep 2005 No 115, Sch 3.3 [9].
cl 204: Am 5.11.2003. Rep 2005 No 115, Sch 3.3 [9].
cl 205: Am 2003 No 95, Sch 2.1 [42] [43]; 9.7.2004. Rep 2005 No 115, Sch 3.3 [9].
Part 11
206–223 (Repealed)
pt 11, div 1: Rep 2005 No 115, Sch 3.3 [10].
cl 206: Am 2001 No 34, Sch 5.9; 13.12.2002. Rep 2005 No 115, Sch 3.3 [10].
pt 11, div 2, hdg: Am 2003 No 40, Sch 2.11. Rep 2005 No 115, Sch 3.3 [10].
pt 11, div 2: Rep 2005 No 115, Sch 3.3 [10].
cll 207–210: Am 13.12.2002. Rep 2005 No 115, Sch 3.3 [10].
cll 211–213: Rep 13.12.2002.
cl 214: Am 13.12.2002. Rep 2005 No 115, Sch 3.3 [10].
cl 215: Rep 13.12.2002.
pt 11, div 3: Rep 2005 No 115, Sch 3.3 [10].
cll 216: Rep 13.12.2002.
cll 217: Rep 13.12.2002.
cll 218: Am 13.12.2002. Rep 2005 No 115, Sch 3.3 [10].
cll 219: Am 13.12.2002. Rep 2005 No 115, Sch 3.3 [10].
pt 11, div 4: Rep 13.12.2002.
pt 11, div 5 (cll 220–223): Rep 13.12.2002.
Part 12 Accreditation of building products and systems
pt 12: Subst 2006 (315), Sch 1.
224 Building products and systems certified under CodeMark scheme
(1) For the purposes of sections 4.15(4), 4.28(4) and 6.8(1)(a) of the Act, a building product or system is accredited if—(a) a certificate of conformity issued in accordance with the CodeMark scheme is in force with respect to the building product or system, and(b) use of the building product or system is not prohibited under the Building Products (Safety) Act 2017.Note—This clause also applies in relation to accreditation for the purposes of the issue of construction certificates. Section 109F of the Act (as in force immediately before the repeal of that section by the Environmental Planning and Assessment Amendment Act 2017) continues to apply pursuant to clause 18 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).(2) In this clause, CodeMark scheme means the CodeMark scheme for the certification of building products and systems managed by the Australian Building Codes Board, in which the certification bodies are accredited and monitored by the Joint Accreditation System of Australia and New Zealand established on 30 October 1991.cl 224: Subst 2006 (315), Sch 1. Am 2018 (66), Sch 2 [22]; 2018 (500), Sch 2 [44]–[46].
225 Savings provisions
(1) Any building product or system (however described) in respect of which a certificate of conformity under the ABCB scheme was issued before the commencement is taken to have been accredited in accordance with clause 224 as in force after the commencement, subject to the same limitations as to time as those to which the certificate of conformity is subject.(2) Any building product or system (however described)—(a) that was the subject of an application for a certificate of conformity that was lodged under the ABCB scheme before the commencement but had not been determined at the commencement, andis taken to have been accredited in accordance with clause 224 as in force after the commencement, subject to the same limitations as to time as those to which the certificate of conformity is subject.(b) in respect of which such a certificate of conformity is issued in accordance with that scheme after the commencement,(3) In this clause—ABCB scheme has the same meaning as in clause 224 as in force before the commencement.commencement means the commencement of the Environmental Planning and Assessment Amendment (CodeMark) Regulation 2006.cl 225: Subst 2006 (315). Sch 1.
Part 13 Development by the Crown
226 Prescribed persons: section 4.32
(cf clause 81MM of EP&A Regulation 1994)
(1) The following persons are prescribed for the purposes of Division 4 of Part 4 of the Act (as referred to in section 4.32(2)(a) of the Act)—(a) a public authority (not being a council),(b) a public utility,(c) an Australian university within the meaning of the Higher Education Act 2001,(d) a TAFE establishment within the meaning of the Technical and Further Education Commission Act 1990,(e) without limiting paragraph (a), a Crown cemetery operator within the meaning of the Cemeteries and Crematoria Act 2013.(2) The following persons are prescribed under section 4.32(2)(a) of the Act (as modified by section 6.28(1) of the Act) for the purposes of section 6.28 in relation to Crown building work for which development consent is required under Part 4 of the Act—(a) the Luna Park Reserve Trust,(b) the Sydney Light Rail Company (ACN 064 062 933),(c) the Pyrmont Light Rail Company Pty Ltd (ACN 065 183 913),(d) the Light Rail Construction Company Pty Ltd (ACN 067 246 897).(3) The following persons are prescribed under section 4.32(2)(a) of the Act (as modified by section 6.28(1) of the Act) for the purposes of section 6.28 in relation to Crown building work that constitutes an activity within the meaning of Part 5 of the Act—(a) a determining authority that is a proponent of the activity within the meaning of Part 5 of the Act,(b) a company SOC, within the meaning of the State Owned Corporations Act 1989, that is the subject of a certificate under section 37A of that Act in respect of that activity.cl 226: Am 16.2.2001; 2001 No 102, Sch 2.1; 2009 (269), Sch 1 [14]; 2010 No 59, Sch 2.27 [1]; 2013 No 105, Sch 6.4; 2017 No 17, Sch 4.28 [3]; 2018 (66), Sch 2 [22].
227 Technical provisions of the State’s building laws
(cf clause 81NN of EP&A Regulation 1994)
For the purposes of section 6.28 of the Act, all of the provisions of the Building Code of Australia and the Fire Sprinkler Standard (within the meaning of Division 7B of Part 9) are prescribed as technical provisions of the State’s building laws.cl 227: Am 16.2.2001; 2009 (269), Sch 1 [15]; 2012 (668), Sch 1 [7]; 2018 (66), Sch 2 [22].
Part 13A Supplementary provisions for development requiring consent
pt 13A: Ins 2003 No 95, Sch 2.1 [44].
227A Signs on development sites
(1) This clause applies if there is a person who is the principal certifying authority or the principal contractor for any building work, subdivision work or demolition work authorised to be carried out on a site by a development consent or complying development certificate.(2) Each such person must ensure that a rigid and durable sign showing the person’s identifying particulars so that they can be read easily by anyone in any public road or other public place adjacent to the site—(a) is erected in a prominent position on the site before the commencement of the work, and(b) is maintained on the site at all times while this clause applies until the work has been carried out.(3) In this clause, the identifying particulars for a person means—(a) the name, address and telephone number of the person, and(b) in the case of a principal contractor, a telephone number on which the principal contractor may be contacted at any time for business purposes.(4) Nothing in this clause requires the erection of more than one sign on a site or prevents the use of an appropriate sign that has already been erected on a site.(5) This clause does not require a sign to be erected or maintained on a site before 1 July 2004.Note—See clauses 98A and 136B which require such a sign on a site as a condition of development consent or complying development certificate.cl 227A: Ins 2003 No 95, Sch 2.1 [44]. Am 27.2.2004; 2015 (424), Sch 1 [7] .
Part 14 Environmental assessment under Part 5 of the Act
Division 1A Preliminary
pt 14, div 1A: Ins 2007 (496), Sch 1 [44].
227AA Demolition of temporary structure not “activity”
Pursuant to paragraph (k) of the definition of activity in section 5.1(1) of the Act, the demolition of a temporary structure is prescribed not to be such an activity for the purposes of that definition.cl 227AA: Ins 2007 (496), Sch 1 [44]. Am 2018 (66), Sch 2 [22].
Division 1 Circumstances requiring an environmental impact statement
228 What factors must be taken into account concerning the impact of an activity on the environment?
(cf clause 82 of EP&A Regulation 1994)
(1) For the purposes of Part 5 of the Act, the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment include—(a) for activities of a kind for which specific guidelines are in force under this clause, the factors referred to in those guidelines, or(b) for any other kind of activity—(i) the factors referred to in the general guidelines in force under this clause, or(ii) if no such guidelines are in force, the factors referred to subclause (2).(2) The factors referred to in subclause (1)(b)(ii) are as follows—(a) any environmental impact on a community,(b) any transformation of a locality,(c) any environmental impact on the ecosystems of the locality,(d) any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality,(e) any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations,(f) any impact on the habitat of protected animals (within the meaning of the Biodiversity Conservation Act 2016),(g) any endangering of any species of animal, plant or other form of life, whether living on land, in water or in the air,(h) any long-term effects on the environment,(i) any degradation of the quality of the environment,(j) any risk to the safety of the environment,(k) any reduction in the range of beneficial uses of the environment,(l) any pollution of the environment,(m) any environmental problems associated with the disposal of waste,(n) any increased demands on resources (natural or otherwise) that are, or are likely to become, in short supply,(o) any cumulative environmental effect with other existing or likely future activities,(p) any impact on coastal processes and coastal hazards, including those under projected climate change conditions.(3) For the purposes of this clause, the Planning Secretary may establish guidelines for the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment, in relation to activities generally or in relation to any particular kind of activity.(4) The Planning Secretary may vary or revoke any guidelines in force under this clause.cl 228: Am 2010 No 78, Sch 3.3 [2]; 2017 (440), Sch 1 [12].
Division 2
229–232 (Repealed)
pt 14, div 2 (cll 229–232): Rep 2011 (510), Sch 2 [17].
Division 3 Public participation
233 What is the form for a section 5.8 notice?
For the purposes of section 5.8 of the Act, the prescribed form in which a notice under that section is to be prepared is a form that, in addition to the matters required by section 5.8(1) of the Act, includes the following matters—(a) the following heading in capital letters and bold type—“ASSESSMENT OF ENVIRONMENTAL IMPACT OF (a title description of the proposed activity and its location)—PUBLIC EXHIBITION”(b) a brief description of the proposed activity and its locality,(c) the name of the proponent,(d) a statement of the places, dates and times for inspection of the environmental impact statement,(e) a statement that any person may, before the specified closing date, make written representations to the determining authority about the proposed activity.cll 233: Am 2018 (66), Sch 2 [22].
234 In what manner must a section 5.8 notice be given?
(cf clause 87 of EP&A Regulation 1994)
(1) For the purposes of section 5.8 of the Act, the prescribed manner in which a notice under that section is to be given in relation to an environmental impact statement is by causing notice of the places, dates and times where the statement may be inspected to be published on at least 2 separate occasions—(a) in a daily newspaper circulating generally throughout the State, andso as to appear across 2 or 3 columns in the display section of those newspapers.(b) in a local newspaper,(2) The period of 30 days referred to in section 5.8(1) of the Act begins on—(a) the date on which the notice is first published in the daily newspaper circulating generally throughout the State, orwhichever is the later.(b) the date on which the notice is first published in the local newspaper,cll 234: Am 2018 (66), Sch 2 [22].
235 Where may an environmental impact statement be inspected?
(cf clause 88 of EP&A Regulation 1994)
In addition to the places referred to in section 5.8(1) of the Act, a determining authority must make copies of the relevant environmental impact statement available for public inspection, on the same dates and during the same times, at the following places—(a) the principal office of the council in whose area the proposed activity is to be carried out,(b) (Repealed)(c) the Sydney office of The Environment Centre (NSW) Pty Ltd.cl 235: Am 2006 (587), Sch 1 [4] [5]; 2018 (66), Sch 2 [22].
Division 4
236, 237 (Repealed)
pt 14, div 4 (cll 236, 237): Rep 2011 (510), Sch 2 [17].
Division 5 Public participation—modification of Minister’s approval where no environmental impact statement required
237A Application
This Division applies in relation to the provisions of Division 4 of Part 5 of the Act, as in force immediately before their repeal, to the extent that those provisions continue to apply to an activity by the operation of a transitional provision made by or under the Act.cl 237A: Ins 2005 (391), Sch 1 [4].
238 Particulars of proposed modification to be publicly exhibited
(cf clause 90A of EP&A Regulation 1994)
(1) For the purposes of section 115BA(5)(b) of the Act, particulars of a proposed modification of an approved activity must be publicly exhibited in accordance with this Division.(2) In this Division, particulars of a proposed modification include a description of the modification to be made to the approved activity and the locality of the proposed modified activity.
239 Notice to be given of the public exhibition of the proposed modification
(cf clause 90B of EP&A Regulation 1994)
(1) Notice of the period during which the particulars of the proposed modification may be inspected and the places and times for inspection—(a) must be published in a local newspaper circulating in the locality of the proposed modified activity, and(b) must be published in the newspaper on at least 2 separate occasions before the start of that inspection period, and(c) must appear in the display section of the newspaper.(2) The notice must include the following matters—(a) the following heading in capital letters and bold type—“PROPOSED MODIFICATION TO (a title description of approved activity and its location)—PUBLIC EXHIBITION”(b) brief particulars of the proposed modification,(c) the name of the proponent,(d) a statement of the period during which the particulars of the proposed modification may be inspected and the places and times for inspection,(e) a statement that any person may, before the end of that inspection period, make written representations to the proponent about the proposed modification.
240 Where may the proposed modification be inspected?
(cf clause 90C of EP&A Regulation 1994)
The particulars of the proposed modification are to be available for inspection during the inspection period specified in the notice under clause 241—(a) at the principal office of the proponent and the Department, and(b) at the office of the proponent and the Department closest to the locality in which the proposed modified activity is to be carried out, and(c) at the principal office of the council for the area in which the proposed modified activity is to be carried out, and(d) at the Sydney office of the Environment Centre (New South Wales) Pty Ltd.
241 Period of exhibition of proposed modification
(cf clause 90D of EP&A Regulation 1994)
The particulars of the proposed modification are to be available for inspection for a period of at least 14 days beginning on the day following the second occasion on which the relevant notice is published under clause 239.
242 Representations on proposed modification
(cf clause 90E of EP&A Regulation 1994)
(1) Any person may, during the inspection period specified in the notice under clause 239, inspect the particulars of the proposed modification and may, before the end of that inspection period, make written representations to the proponent about the proposed modification.(2) The proponent must include, in the request to the Minister for the modification of the relevant approval, a copy of any written representations made to the proponent in accordance with this clause.
Division 6 General
243 Report to be prepared for activities to which an environmental impact statement relates
(cf clause 91 of EP&A Regulation 1994)
(1) A determining authority for an activity must prepare a report on any activity for which an environmental impact statement has been prepared.(2) The report must be prepared as soon as practicable after a decision is made by the determining authority to carry out or refrain from carrying out the activity or to approve or disapprove the carrying out of the activity.(3) The report must comment on, and have regard to, each of the following matters—(a) the environmental impact statement,(b) any representations duly made to it about the proposed activity,(c) the effects of the proposed activity on the environment,(d) the proponent’s proposals to mitigate any adverse effects of the activity on the environment,(e) the findings and recommendations of—(i) any report given to it by the Planning Secretary under section 5.8 of the Act, and(ii) any advice given to it by the Minister under section 5.9 of the Act, andwith respect to the proposed activity.(iii) any public hearing by the Independent Planning Commission,(4) The report must also give full particulars of the determining authority’s decision on the proposed activity and, if the authority has granted approval to the carrying out of the activity, any conditions or modifications imposed or required by the authority in connection with the carrying out of the activity.(5) The determining authority must make the report public as soon as practicable after it has been completed and must send a copy of the report to the council of each area that is, or would have been, affected by the activity.(6) The requirements of subclause (5)—(a) are subject to any prohibition or restriction arising from a direction under clause 268U, but to the extent only of the prohibition or restriction, and(b) do not apply to an activity to which Division 4 of Part 5 of the Act applies.cl 243: Am 2008 (467), Sch 1 [26] [27]; 2018 (66), Sch 2 [22]; 2018 (500), Sch 2 [17] [47].
244 (Repealed)
cl 244: Am 2015 No 15, Sch 3.26 [5]. Rep 2017 (440), Sch 1 [13].
Division 7 Fisheries management
pt 14, div 7: Ins 7.2.2003.
244A Definitions
In this Division—fisheries approval has the same meaning as in Division 5 of Part 5 of the Act.Fisheries Minister has the same meaning as in Division 5 of Part 5 of the Act.fishing activity has the same meaning as in the Fisheries Management Act 1994.shark meshing means the placing of nets by the Fisheries Minister around beaches and other waters to protect the public from sharks.cl 244A: Ins 7.2.2003. Am 2006 (587), Sch 1 [6] [7].
244B Fishing activities and shark meshing
(1) For the purposes of the definition of activity in section 5.1(1) of the Act, a fishing activity carried out pursuant to a fisheries approval that is issued or renewed before 31 August 2009 for a period of not more than 12 months is prescribed not to be such an activity.(2) For the purposes of the definition of activity in section 5.1(1) of the Act, shark meshing carried out at any time before 31 August 2009 is prescribed not to be such an activity.(3) This clause does not apply to or in respect of aquaculture, within the meaning of the Fisheries Management Act 1994.cl 244B: Ins 7.2.2003. Am 12.12.2003; 24.12.2004; 2005 (831), Sch 1 [3]. Subst 2006 (587), Sch 1 [8]; 2008 No 86, Sch 2.2. Am 2009 (106), cl 3 (1) (2); 2018 (66), Sch 2 [22].
244C (Repealed)
cl 244C: Ins 7.2.2003. Am 12.12.2003; 24.12.2004; 2005 (831), Sch 1 [3]. Rep 2006 (587), Sch 1 [8].
Division 8 Special provisions relating to Australian Rail Track Corporation Ltd
pt 14, div 8: Ins 3.9.2004.
244D Definitions
In this Division—activities for the purposes of ARTC rail infrastructure facilities includes activities (within the meaning of Part 5 of the Act) for any one or more of the following purposes—(a) development for the purposes of the construction, maintenance or operation of ARTC rail infrastructure facilities,(b) geotechnical investigations relating to ARTC rail infrastructure facilities,(c) environmental management and pollution control relating to ARTC rail infrastructure facilities,(d) access for the purpose of the construction, maintenance or operation of ARTC rail infrastructure facilities,(e) temporary construction sites and storage areas, including temporary batching plants, the storage of plant and equipment and the stockpiling of excavated material.approved Code means a Code prepared by ARTC and approved by the Minister under this Division.ARTC means the Australian Rail Track Corporation Ltd (ACN 081 455 754).ARTC arrangement means a lease, licence or other arrangement under Part 8A of the Transport Administration Act 1988.ARTC lease or licence means a lease or licence under Part 8A of the Transport Administration Act 1988.ARTC rail infrastructure facilities means rail infrastructure facilities owned by ARTC or a rail authority (within the meaning of Part 8A of the Transport Administration Act 1988) that are—(a) situated on land subject to an ARTC arrangement, or(b) subject to an ARTC arrangement.rail infrastructure facilities has the same meaning as it has in Division 15 of Part 3 of State Environmental Planning Policy (Infrastructure) 2007.cl 244D: Ins 3.9.2004. Am 2005 (479), Sch 1 [1]; 2011 (510), Sch 2 [42] [43]; 2017 No 12, Sch 1.5.
244E Code required for rail infrastructure facilities must be complied with by ARTC
(1) ARTC must comply with the requirements of an approved Code in respect of an activity for the purposes of ARTC rail infrastructure facilities if a Code is in force under this Part in relation to the activity.(2) However, ARTC is not required to comply with subclause (1) if the Minister gives written notice to ARTC that the activity is not required to be covered by, or dealt with in accordance with, an approved Code.(3) An exemption under subclause (2) may be made subject to conditions and may be revoked or varied at any time.(4) (Repealed)cl 244E: Ins 3.9.2004. Am 2005 (479), Sch 1 [2] [3].
244F Approved Code
(1) ARTC must prepare a Code and make an application to the Planning Secretary for approval of the Code.(1A) The Code is to apply to activities for the purposes of ARTC rail infrastructure facilities, other than activities for which ARTC is required to furnish or obtain an environmental impact statement, or development that is a Part 3A project.(2) The Planning Secretary is to assess an application for approval of a Code and to provide a report to the Minister on any such application as soon as practicable after receiving an application.(3) The Minister may approve a Code prepared by ARTC for the purposes of this Part and may specify the period for which the approval is in force.(4) The Minister must give ARTC written notice of any approval or refusal to approve a Code. In the case of a refusal, the notice is to set out reasons for the refusal.(5) An approval may be made subject to conditions and may be revoked or varied at any time.(6) A Code approved for the purposes of this clause must contain the following matters—(a) classes of activities for the purposes of the application of the Code,(b) assessment requirements for specified activities or classes of activities,(c) procedures for carrying out assessments,(d) protocols for consultation,(e) requirements for consideration of any advice by the Planning Secretary,(f) requirements for consideration of environmental management procedures in relation to effects on the environment of activities,(g) requirements for documentation,(h) protocols for the availability of documentation to the Minister, the Planning Secretary and the public,(i) protocols for auditing the performance of and compliance with the Code,(j) any other matters required by the Minister.cl 244F: Ins 3.9.2004. Am 2005 (479), Sch 1 [4]; 2011 (510), Sch 2 [44].
244G, 244H (Repealed)
cl 244G: Ins 3.9.2004. Am 2005 (479), Sch 1 [5]–[8]. Rep 2011 (510), Sch 2 [45].
cl 244H: Ins 2005 (479), Sch 1 [9]. Rep 2011 (510), Sch 2 [45].
244I Existing environmental impact statements and assessments
To avoid doubt, the preparation of an environmental impact statement and any other thing done under Part 5 of the Act before the commencement of this clause in connection with rail infrastructure facilities or a wetlands affected activity are taken to have been done for the purposes of the preparation of an environmental impact statement or other thing under that Part as a result of the operation of this Division.cl 244I: Ins 2005 (479), Sch 1 [9].
Division 9 Special provisions relating to electricity distributors and transmission operators
pt 14, div 9: Ins 2015 No 5, Sch 8.13 [1].
244J Definitions
In this Division—activity for the purposes of a transacted electricity transmission or distribution network includes activities (within the meaning of Part 5 of the Act) for any one or more of the following purposes—(a) development for the purposes of the construction, maintenance or operation of a transacted electricity transmission or distribution network,(b) geotechnical investigations relating to a transacted electricity transmission or distribution network,(c) environmental management and pollution control relating to a transacted electricity transmission or distribution network,(d) access for the purpose of the construction, maintenance or operation of a transacted electricity transmission or distribution network,(e) temporary construction sites and storage areas, including temporary batching plants, the storage of plant and equipment and the stockpiling of excavated material.approved Code means a Code approved by the Minister under this Division.means an authorised network operator under the Electricity Network Assets (Authorised Transactions) Act 2015.electricity transmission or distribution network has the same meaning as it has in Division 5 of Part 3 of State Environmental Planning Policy (Infrastructure) 2007.transacted electricity transmission or distribution network means a transacted distribution system or transacted transmission system under the Electricity Network Assets (Authorised Transactions) Act 2015.cl 244J: Ins 2005 (479), Sch 1 [9]. Rep 2011 (510), Sch 2 [45]. Ins 2015 No 5, Sch 8.13 [1].
244K Approved Code
(1) An approved Code may make provision for or with respect to the exercise by an authorised network operator of its functions under section 5.5 of the Act in respect of an activity for the purposes of a transacted electricity transmission or distribution network.(2) An approved Code is not to apply to activities for the purposes of a transacted electricity transmission or distribution network for which the operator is required under Part 5 of the Act to furnish or obtain an environmental impact statement.(3) Without limitation, an approved Code may include provision for or with respect to any of the matters listed in section 5.6(2) of the Act.(4) An approved Code may specify the period for which the approved Code is in force.(5) The Minister may by notice in writing to an authorised network operator exempt a specified activity of the operator from the operation of an approved Code. Such an exemption may be made subject to conditions and may be revoked or varied at any time by notice in writing to the operator.cl 244K: Ins 2015 No 5, Sch 8.13 [1]. Am 2018 (66), Sch 2 [22].
244L Procedure for approval of Code
(1) The Minister may approve a Code for the purposes of this Division and may vary or revoke an approved Code.(2) An approval of a Code, or a variation or revocation of an approved Code, takes effect when notice of it is published in the Gazette or on such later date as is specified in the approval, variation or revocation.(3) The Minister must, before varying or revoking a Code or approving a Code as a replacement for an existing Code, give each authorised network operator who will be affected by it notice of the proposal and an opportunity to make submissions on the proposal. The Minister must take into account any submission made by an authorised network operator within 20 business days after the operator was given notice of the proposal.cl 244L: Ins 2015 No 5, Sch 8.13 [1].
Division 10 Special provisions relating to proprietors of registered non-government schools
pt 14, div 10: Ins 2017 (491), Sch 1 [5].
244M Definitions
In this Division—activities for the purposes of an existing school means activities (within the meaning of Part 5 of the Act) for the purpose of development that is permitted without consent under clause 36 of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017.approved Code means a Code approved by the Minister under this Division.cl 244M: Ins 2017 (491), Sch 1 [5].
244N Approved Code must be complied with
(1) An approved Code may make provision for or with respect to the exercise by a proprietor of a registered non-government school of its functions under section 5.5 of the Act in respect of activities for the purposes of an existing school.(2) An approved Code is not to apply to activities for the purposes of an existing school for which the proprietor is required under Part 5 of the Act to furnish or obtain an environmental impact statement.(3) Without limitation, an approved Code may include provision for or with respect to any of the matters listed in section 5.6(2) of the Act.(4) An approved Code may specify the period for which the approved Code is in force.(5) The Minister may, by notice in writing to a proprietor of a registered non-government school, exempt a specified activity from the operation of an approved Code. An exemption may be made subject to conditions and may be revoked or varied at any time by notice in writing to the proprietor.cl 244N: Ins 2017 (491), Sch 1 [5]. Am 2018 (66), Sch 2 [22].
244O Procedure for approval of Code
(1) The Minister may approve a Code for the purposes of this Division and may vary or revoke an approved Code.(2) An approval of a Code, or a variation or revocation of an approved Code, takes effect when notice of it is published in the Gazette or on such later date as is specified in the approval, variation or revocation.cll 244O: Ins 2017 (491), Sch 1 [5].
244P Offences against specified approved Code
(1) A proprietor of a registered non-government school must comply with the following requirements of the NSW Code of Practice for Part 5 Activities for registered non-government schools in respect of activities for the purposes of an existing school (other than an activity that is the subject of an exemption in relation to the proprietor under clause 244N(5))—(a) the mandatory requirements for consultation in clause 3.3.3 of the Code,(b) the mandatory requirements relating to assessment documentation in clause 3.4.1 of the Code,(c) the mandatory requirements relating to determination documentation in clause 3.5.1 of the Code,(d) the mandatory requirements relating to record keeping in clause 5.1 of the Code,(e) the mandatory requirements relating to public access to records in clause 5.2 of the Code,(f) the mandatory requirements relating to self-reporting of breaches of the Code in clause 6.2 of the Code,(g) the mandatory requirements relating to audits in clause 6.3.1 of the Code.(2) In this clause—NSW Code of Practice for Part 5 Activities for registered non-government schools means the approved Code of that name, notice of the making of which was published in the Gazette on 1 September 2017.cll 244P: Ins 2017 (491), Sch 1 [5].
Part 15 Fees and charges
Division 1A Fees for transitional Part 3A projects
pt 15, div 1A, hdg: Ins 2007 (6), Sch 1 [5]. Am 2011 (510), Sch 2 [46].
pt 15, div 1A: Ins 2007 (6), Sch 1 [5].
245A Definitions
In this Division—Part 3A application means an application for approval under Part 3A of the Act to carry out a project or for the concept plan for a project.project means development to which Part 3A of the Act applies.public notice, of an environmental assessment or other matter, means the publication of a notice of the assessment or other matter in accordance with Part 3A of the Act.cl 245A: Ins 2007 (6), Sch 1 [5]. Am 2007 (342), Sch 1 [31].
245B Determination of fees payable for Part 3A application
(1) The fee for a Part 3A application is to be determined by the Planning Secretary and is not to exceed the total maximum fee determined in accordance with the provisions of this Division relating to any such application.(2) Separate fees are payable for an application for approval of the concept plan for a project and for an application for approval to carry out that project (including where a single application is made for approval of the concept plan and for approval to carry out a part or aspect of that project).(3) If two or more fees are applicable to a single Part 3A application (such as an application relating to the subdivision of land and the erection of a building on one or more lots created by the subdivision), the maximum fee payable is the sum of those fees.(4) The total maximum fee payable for a Part 3A application for approval for part only of a project, and for any subsequent Part 3A applications for approval for any remaining part of the project, is the maximum fee that would otherwise be payable if only a single application for approval for the project was made.(5) A maximum fee of $850 is payable for a Part 3A application for which no other fee is provided under this Division.cl 245B: Ins 2007 (6), Sch 1 [5]. Am 2010 (759), Sch 1 [16].
245C Payment of fees for Part 3A applications
(1) The fee payable under this Division for a Part 3A application is payable by the proponent within 14 days after the Planning Secretary makes the environmental assessment in relation to the application publicly available under section 75H(3) or 75N of the Act and notifies the proponent of the amount of the fee.Note—For critical infrastructure projects—see also clause 245H(2).(2) The Minister may refuse to consider a Part 3A application if the fee payable for the application remains unpaid.cl 245C: Ins 2007 (6), Sch 1 [5]. Am 2007 (342), Sch 1 [32].
245D Maximum fee for application involving erection of building, carrying out of work or demolition (other than for marinas or extractive industries)
(1) The maximum fee for a Part 3A application in respect of a project involving the erection of a building, the carrying out of a work or the demolition of a work or a building, and having an estimated cost within the range specified in the Table to this clause is calculated in accordance with that Table.(2) The fees determined under this clause do not apply to development for which a fee is payable under clause 245E or 245F.Table
245E Maximum fee—marinas
(1) The maximum fee payable for a Part 3A application in respect of a project involving the erection of a building or the carrying out of work for the purposes of a marina is $5,660, plus $565 for each vessel that can be moored, berthed or stored at fixed or floating berths, at freestanding moorings, alongside jetties or pontoons, within dry storage stacks or on cradles in hardstand areas.(2) In the case of a project involving the extension of an existing marina, the number of vessels referred to in subclause (1) is to be calculated on the basis of the additional number of vessels that can be moored, berthed or stored as a result of the extension of the marina.(3) In this clause, a vessel does not include a dinghy or other small craft.cl 245E: Ins 2007 (6), Sch 1 [5]. Am 2010 (759), Sch 1 [17].
245F Maximum fee—extractive industries
(1) The maximum fee payable for a Part 3A application in respect of a project involving extractive industry (not being mining) is the sum of the following—(a) $5,660, plus $0.06 for each tonne of material that is to be extracted annually,(b) if the project involves the erection of a building—the maximum fee calculated in accordance with clause 245D in relation to the erection of a building.(2) For the purposes of subclause (1), the Planning Secretary is to determine the weight of material that is to be extracted annually by reference to a genuine estimate of the average annual weight of material intended to be extracted.cl 245F: Ins 2007 (6), Sch 1 [5]. Am 2010 (759), Sch 1 [18].
245G Maximum fee—subdivision of land
(1) The maximum fee payable for a Part 3A application in respect of a project involving the subdivision of land is as follows—(a) subdivision (other than minor subdivision and strata subdivision)—$5,660, plus $340 for each hectare (or part of a hectare) of the land being subdivided, up to a maximum of $34,000,(b) minor subdivision—$850,(c) strata subdivision—$850.(2) In this clause, minor subdivision means subdivision for the purpose only of any one or more of the following—(a) widening a public road,(b) making an adjustment to a boundary between lots, being an adjustment that does not involve the creation of a greater number of lots,(c) a minor realignment of boundaries that does not create additional lots or the opportunity for additional dwellings,(d) a consolidation of lots that does not create additional lots or the opportunity for additional dwellings,(e) rectifying an encroachment on a lot,(f) creating a public reserve,(g) excising from a lot land that is, or is intended to be, used for public purposes, including drainage purposes, rural fire brigade or other emergency service purposes or public conveniences.cl 245G: Ins 2007 (6), Sch 1 [5]. Am 2010 (759), Sch 1 [19]–[21].
245H Additional fee for critical infrastructure projects
(1) The maximum additional fee payable for a Part 3A application in respect of a critical infrastructure project is $50,000.(2) If a project is declared to be a critical infrastructure project after the fee for the Part 3A application is paid or due for payment, the additional fee is payable within 14 days after the Planning Secretary notifies the proponent that the additional fee is payable.cl 245H: Ins 2007 (6), Sch 1 [5]. Am 2007 (342), Sch 1 [33]. Subst 2010 (759), Sch 1 [22].
245I Additional application fee for making environmental assessment publicly available
In addition to any other fees payable under this Division, the maximum fee payable for a Part 3A application includes a maximum fee of $2,830 for giving public notice of the environmental assessment in relation to the application under section 75H(3) or 75N of the Act.cl 245I: Ins 2007 (6), Sch 1 [5]. Am 2010 (759), Sch 1 [23].
245J Additional application fee for planning reform
In addition to any other fees payable under this Division, the maximum fee payable for a Part 3A application (other than an application for approval of a concept plan) includes a maximum fee for planning reform calculated as follows (but only if the estimated cost of the project exceeds $50,000)—%20AND%20(No%3D0557)%20AND%20(Year%3D2000)%20AND%20(%22Historical%20Document%22%3D%222019-11-15%22))/g3.gif)
where—P represents the amount payable, expressed in dollars rounded down to the nearest dollar.E represents the estimated cost of the project, expressed in dollars rounded up to the nearest thousand dollars.cl 245J: Ins 2007 (6), Sch 1 [5].
245K Fee for request for modification of Minister’s approval
(1) The fee payable for consideration of a request for modification of any of the following is to be determined by the Planning Secretary in accordance with this clause—(a) the approval of the Minister for a project under Part 3A of the Act,(b) the approval of a concept plan under that Part,(c) a development consent that is taken to be an approval under that Part.(2) The maximum fee for a request for modification that the Planning Secretary considers will relate only to a minor matter such as a minor error, a misdescription or a miscalculation (but not a minor environmental assessment) is $850.(2A) The maximum fee for a request for modification that the Planning Secretary considers will involve a minor environmental assessment is $5,000.(3) The maximum fee in any other case is—(a) 50% of the fee paid for the Part 3A application in respect of the approval for the project or concept plan that is proposed to be modified, orwhichever is the greater.(b) $5,000,(