Environmental Planning and Assessment Regulation 2000



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 practitioner means the holder of an accreditation under the Building and Development Certifiers Act 2018 that authorises the holder to exercise the functions of an accredited practitioner.
accredited practitioner (fire safety) means an accredited practitioner whose class of accreditation authorises the holder to exercise the functions of an accredited practitioner (fire safety) who is acting in respect of matters to which the accreditation applies.
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).
BASIX affected building means a building containing at least 1 dwelling, but does not include the following types of development as defined in the Standard Instrument—
(a)  hotel or motel accommodation, or
(b)  a boarding house, hostel or co-living housing that—
(i)  accommodates more than 12 residents, or
(ii)  has a gross floor area of more than 300 square metres.
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 the Environmental Planning and Assessment (Development Certificate and Fire Safety) Regulation 2021.
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.
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.
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.
concurrence authority 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.
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.
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 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 registered under the Building and Development Certifiers Act 2018 whose registration authorises the person to exercise the functions of a fire safety engineer.
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.
Lord Howe Island Board means the corporation constituted under section 4 of the Lord Howe Island Act 1953.
multi dwelling housing (terraces) has the same meaning as in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
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.
performance requirement has the same meaning as in the Building Code of Australia.
performance solution 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 body corporate has the same meaning as in the Building and Development Certifiers Act 2018.
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.
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)    (Repealed)
(d)  site compatibility certificate (schools or TAFE establishments).
site compatibility certificate (affordable rental housing) means a certificate issued under State Environmental Planning Policy (Housing) 2021, clause 39.
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 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.
State Significant Development Guidelines means the State Significant Development Guidelines prepared by the Secretary as in force from time to time and available on the website of the Department.
State Significant Infrastructure Guidelines means the State Significant Infrastructure Guidelines prepared by the Secretary as in force from time to time and available on the website of the Department.
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.
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.
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.
(4)  A reference in this Regulation to a consent authority’s website means—
(a)  if the consent authority is a council, local planning panel or regional panel—the website of the council or councils of the area in which the development concerned is to be carried out, or
(b)  if the consent authority is the Minister, the Independent Planning Commission or a public authority—the NSW planning portal.
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]; 2018 No 63, Sch 3.4[1]; 2019 (120), Sch 1 [1]; 2019 (426), Sch 1[2]; 2019 (571), Sch 2[1]; 2020 (167), Sch 1[1] [2]; 2021 (356), Sch 1.2[1]; 2021 (689), Sch 3[1] [2]; 2021 (692), Sch 1[1]–[4].
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, 6   (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].
cl 6: Rep 2020 (167), Sch 1[3].
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)    (Repealed)
(3)  Also, the Code mentioned in subclause (1) is varied in relation to small live music or arts venues as follows—
(a)  Volume One of the Code applies as if, in Schedule 3, paragraph (c)(iii) of the definition of Assembly building were omitted and replaced with—
  
(iii)  a sports stadium, sporting or other club—but not including a small live music or arts venue; or
(b)  Volume One of the Code applies as if, in Schedule 3, after the definition of Sitework, the following definition were inserted—
  
small live music or arts venue means the whole or part of a Class 6 building that has a rise in storeys of no more than 2—
(a)  in which live music or arts are provided to the public, and
(b)  that has a floor area of not more than 300 square metres.
(c)  Volume One of the Code applies as if, at the end of the definition of Class 6 in clause A6.6 the following were inserted—
  
A Class 6 building or part of a Class 6 building in which people assemble for entertainment remains a Class 6 building or part of a Class 6 building if it is a small live music or arts venue—see the definition of Assembly building in Volume One of the Code.
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]; 2020 No 40, Sch 4.4.
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   Planning proposal authority—Lord Howe Island Board
For the purposes of section 3.32(1)(b) of the Act, the Lord Howe Island Board is prescribed as a body that the Minister may direct is the planning proposal authority for a proposed instrument under section 3.32(2) of the Act.
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). Ins 2019 (571), Sch 2[2].
12A–15A   (Repealed)
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   Public exhibition of draft development control plans
Following the preparation of a draft development control plan, the council must publish the following on its website—
(a)  the draft development control plan,
(b)  any relevant local environmental plan or deemed environmental planning instrument,
(c)  the period during which submissions about the draft plan may be made to the council.
cl 18: Am 2019 (571), Sch 2[3]. Subst 2020 (167), Sch 1[4].
19   (Repealed)
cl 19: Rep 2020 (167), Sch 1[4].
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 publish notice of its decision on its website 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 notice of the council’s decision to approve the plan is published on its website, or on a later date specified in the notice.
cl 21: Am 2020 (167), Sch 1[5] [6].
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   Amendment or repeal of development control plan
(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 publishing notice of the decision to repeal the plan on its website.
(3)  At least 14 days before repealing a development control plan under subclause (2)(b), the council must publish notice of its intention to repeal the plan, and its reasons for the repeal, on its website.
(4)  The repeal of a development control plan under subclause (2)(b) takes effect on the date on which the notice is published on the council’s website.
cl 22: Am 2020 (167), Sch 1[7]–[9].
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, not later than 14 days after making a development control plan, publish notice of the making of the plan on its website.
(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]; 2020 (167), Sch 1[10].
23   (Repealed)
cl 23: Rep 2020 (167), Sch 1[11].
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,
(c)  a reference to a council’s website is taken to be a reference to the NSW planning portal.
cl 24: Am 2005 (600), Sch 1 [2] [3]; 2009 (268), Sch 1 [2]; 2018 (500), Sch 2 [6]; 2020 (167), Sch 1[12].
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 planning authority 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, and
(c)  be lodged on the NSW planning portal, and
(d)  be accompanied by the fee prescribed under clause 263B.
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.
(3)  A council that is negotiating, or entering into, a planning agreement must consider any relevant practice note.
cl 25B: Ins 2005 (339), Sch 1 [4]. Am 2018 (66), Sch 2 [22]; 2021 (40), Sch 1[1]; 2021 (180), Sch 1[2].
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).
cl 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)  In preparing the explanatory note, the planning authority must consider any relevant practice note prepared by the Planning Secretary under clause 25B(2).
(3), (4)    (Repealed)
(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]; 2021 (40), Sch 1[2].
25F   Information about planning agreements—councils
(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, a description of the development, if relevant, 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.
cl 25F: Ins 2005 (339), Sch 1 [4]. Am 2021 (40), Sch 1[3] [4].
25G   Information about planning agreements—Planning Secretary
(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, a description of the development, if relevant, 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.
cl 25G: Ins 2005 (339), Sch 1 [4]. Am 2021 (40), Sch 1[4] [7].
25H   Information about planning agreements—other planning authorities
(1)  A planning authority must keep a planning agreement register.
(2)  The planning authority must record in the register a short description of any planning agreement, including any amendment, to which it is a party, including the following—
(a)  the date the agreement was entered into,
(b)  the names of the parties,
(c)  a description of the development, if relevant,
(d)  the land to which it applies.
(4)  In this clause—
planning authority does not include a council or the Minister.
cl 25H: Ins 2005 (339), Sch 1 [4]. Subst 2021 (40), Sch 1[10].
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
Column 1
Column 2
Proposed cost of carrying out the development
Maximum percentage of the levy
Land within the Neighbourhood Centre, Commercial Core, Mixed Use or Enterprise Corridor zone under Liverpool City Centre Local Environmental Plan 2007
Less than $1,000,000
Nil
$1,000,000 or more
3 per cent
Land within the High Density Residential or Light Industrial zone under Liverpool City Centre Local Environmental Plan 2007
Less than $1,000,000
Nil
$1,000,000 or more
2 per cent
Land within the Commercial Core zone under Wollongong Local Environmental Plan 2009
Up to and including $250,000
Nil
More than $250,000
2 per cent
Land identified on the Land Application Map under Parramatta City Centre Local Environmental Plan 2007
Up to and including $250,000
Nil
More than $250,000
3 per cent
Land identified on the Land Application Map under Newcastle City Centre Local Environmental Plan 2008
Up to and including $100,000
Nil
More than $100,000, up to and including $200,000
0.5 per cent
More than $200,000, up to and including $250,000
1 per cent
More than $250,000
3 per cent
Land identified on the Land Application Map under Burwood Local Environmental Plan (Burwood Town Centre) 2010
Up to and including $250,000
Nil
More than $250,000
4 per cent
Land identified in Figure 1 to the Willoughby Local Infrastructure Contributions Plan 2019, as adopted by Willoughby City Council on 11 June 2019
Up to and including $100,000
Nil
More than $100,000, up to and including $200,000
0.5 per cent
More than $200,000, up to and including $250,000
1 per cent
More than $250,000
3 per cent
Land identified in Figure 1—Kensington Town Centre and Figure 2—Kingsford Town Centre to the Randwick City Section 7.12 Development Contributions Plan 2019—Kensington and Kingsford Town Centres, as adopted by Randwick City Council on 10 December 2019
Up to and including $100,000
Nil
More than $100,000, up to and including $200,000
0.5 per cent
More than $200,000, up to and including $250,000
1 per cent
More than $250,000
2.5 per cent
Land identified in Figure 1 to the Norwest Innovation Section 7.12 Development Contributions Plan, as adopted by The Hills Shire Council on 13 July 2021 (Norwest Innovation Land)
Up to and including $100,000
Nil
More than $100,000, up to and including $200,000
0.5 per cent
More than $200,000
1 per cent
More than $1,000,000
2.8 per cent
Land identified in Figure 1 to the Central Sydney Development Contributions Plan 2020, as adopted by the Council of the City of Sydney on 14 December 2020
Up to and including $250,000
Nil
More than $250,000, up to and including $500,000
1 per cent
More than $500,000, up to and including $1 million
2 per cent
More than $1 million
On or before 30 June 2022—2 per cent
On or from 1 July 2022—3 per cent
(1A)  For the avoidance of doubt, the Table to subclause (1)(b) continues to apply to the land specified in that Table even if the local environmental plan or contributions plan used to describe the land has been repealed.
(1B)  If development is proposed to be carried out on Norwest Innovation Land and the maximum floor space ratio shown for the land on the Floor Space Ratio Map under The Hills Local Environmental Plan 2019 is 1:1 or less, subclause (1)(a) applies to the development instead of subclause (1)(b).
(2)  This clause is subject to any direction given by the Minister under section 7.17(1)(d) of the Act.
cl 25K: Ins 2005 (339), Sch 1 [4]. Subst 2007 (28), Sch 1. Am 2007 (575), cl 2; 2007 (622), cl 2; 2007 (624), cl 2; 2008 (22), Sch 1; 2010 (181), cl 3; 2012 (346), Sch 2 [1]; 2018 (66), Sch 2 [22]; 2020 (470), cl 3; 2021 (40), Sch 1[11]–[14]; 2021 (660), sec 3(1) (2); 2021 (698), sec 3.
25L   Electronic transfer of affordable housing contribution
If a condition is imposed on a development consent under the Act, section 7.32 requiring the payment of a monetary contribution to be used for the purpose of providing affordable housing, the monetary contribution may be paid by electronic transfer into an account nominated by the relevant consent authority.
cl 25L: Ins 2021 (692), Sch 1[5].
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)    (Repealed)
cl 26: Am 2007 (342), Sch 1 [17]; 2018 (66), Sch 2 [22]; 2019 (571), Sch 2[4].
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   Public exhibition of draft contributions plans
Following the preparation of a draft contributions plan, the council must publish the following on its website—
(a)  the draft contributions plan and any supporting documents,
(b)  the period during which submissions about the draft plan may be made to the council.
cl 28: Subst 2020 (167), Sch 1[13].
29   (Repealed)
cl 29: Rep 2020 (167), Sch 1[13].
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 publish notice of its decision on its website 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 notice of the council’s decision to approve the plan is published on its website, or on a later date specified in the notice.
cl 31: Am 2020 (167), Sch 1[14] [15].
Division 4 Amendment and repeal of contributions plans
32   Amendment or repeal of contributions plan
(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 publishing notice of the decision to repeal the plan on its website.
(2A)  At least 14 days before repealing a contributions plan under subclause (2)(b), the council must publish notice of its intention to repeal the plan, and its reasons for the repeal, on its website.
(2B)  The repeal of a contributions plan under subclause (2)(b) takes effect on the date on which the notice is published on the council’s website.
(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]; 2020 (167), Sch 1[16]–[18].
33   (Repealed)
cl 33: Rep 2020 (167), Sch 1[19].
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 and reporting
pt 4, div 5, hdg: Am 2021 (40), Sch 1[15].
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—councils
(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]; 2021 (40), Sch 1[17].
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 clause 35 to be included in the notes to its annual financial report.
cl 36: Am 2021 (40), Sch 1[21].
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,
(a1)  the current contribution rates under each of those 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.
cl 37: Am 2021 (40), Sch 1[22].
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   Development application information
(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.
(c)    (Repealed)
cl 48: Am 2020 (312), Sch 1[1] [2].
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 of the owner of that land.
(2)  The consent of the owner of the land is not required 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)  to the owner of the land before the application is made, or
(b)  by publishing a notice no later than 14 days after the application is made—
(i)  in a newspaper circulating in the area in which the development is to be carried out, and
(ii)  in the case of an application made by a public authority, on the public authority’s website, or, in the case of public notification development, on the NSW planning portal.
(3)  Despite subclause (1), a development application made by a lessee of Crown land may only be made with the consent 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.
(4A)  The consent of an owner or other person under this clause is not required to be in writing.
(5)  In this clause—
public authority 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]; 2020 (167), Sch 1[20]; 2020 (312), Sch 1[3] [4].
50   How must a development application be made?
(cf clause 46A of EP&A Regulation 1994)
(1)  A development application, other than an application for State significant development, must—
(a)  be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and
(b)  contain all of the information that is specified in the approved form or required by the Act and this Regulation, and
(c)  be accompanied by the information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation, and
(d)  be lodged on the NSW planning portal.
(1AA)  A development application for State significant development must be—
(a)  in the form approved by the Planning Secretary and made available on the NSW planning portal, and
(b)  accompanied by an environmental impact statement, and
(b1)  if the development application is for BASIX affected development—accompanied by the documents specified in Schedule 1, Part 1A, and
(c)  lodged on the NSW planning portal.
(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), (3)    (Repealed)
(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 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.
(8)  The applicant must be notified, by means of the NSW planning portal, that the development application has been lodged.
(9)  A development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid.
Note—
The amount of a fee payable by an applicant for a development application is determined in accordance with Part 15.
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]; 2020 (312), Sch 1[5]–[7]; 2020 (662), cl 3(1); 2021 (356), Sch 1.2[2] [3]; 2021 (614), Sch 1[1].
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)  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]. Am 2020 (312), Sch 1[8].
50C   Special provision relating to development applications for land within Activation Precincts
(1)  A development application that relates to proposed development on land within an Activation Precinct under State Environmental Planning Policy (Activation Precincts) 2020 must be accompanied by a current Activation Precinct certificate.
(2)  This clause does not apply to or with respect to a development application made by a public authority (other than the Development Corporation within the meaning of that Policy).
cl 50C: Ins 2020 (265), 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 all of the information that is specified in the approved form or required by the Act or this Regulation, or is not accompanied by all of the documents and information specified in Part 1 of Schedule 1 or required by the Act or this Regulation, or
(c)  being an application for designated development, the application is not accompanied by an environmental impact statement, or
Note—
Schedule 2 sets out requirements in relation to environmental impact statements.
(d)  being an application for State significant development, the application is—
(i)  not in the form approved by the Planning Secretary, or
(ii)  not accompanied by an environmental impact statement, or
(iii)  considered incomplete for reasons specified in writing to the applicant by the Planning Secretary.
(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, or
(b)  integrated development,
the consent authority must notify each relevant concurrence authority or approval body of the rejection by means of the NSW planning portal.
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]; 2020 (312), Sch 1[9]; 2021 (180), Sch 1[3]; 2021 (356), Sch 1.2[4] [5].
52   Withdrawal of development applications
(cf clause 47(4)–(6) of EP&A Regulation 1994)
(1)  An applicant may withdraw a development application at any time prior to its determination by lodging notice of the withdrawal of the application on the NSW planning portal.
(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, or
(b)  integrated development,
the consent authority must notify each relevant concurrence authority or approval body of the withdrawal by means of the NSW planning portal.
cl 52: Am 2011 (510), Sch 2 [15]; 2018 (66), Sch 2 [22]; 2018 No 25, Sch 5.13; 2020 (312), Sch 1[10]; 2021 (180), Sch 1[4].
53   (Repealed)
cl 53: Rep 2020 (312), Sch 1[11].
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 made by means of the NSW planning portal, 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, by means of the NSW planning portal, 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), or
(b)  such further period as the consent authority may allow,
the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly.
cl 54: Am 2018 (66), Sch 2 [22]; 2020 (312), Sch 1[12] [13].
55   Amendment or variation of development applications except for State significant development
(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, by lodging the amendment or variation on the NSW planning portal.
(2)  If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must include 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, or
(b)  integrated development,
the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.
(4)  This clause does not apply to a development application for State significant development.
cl 55: Am 2018 (66), Sch 2 [22]; 2020 (312), Sch 1[14] [15]; 2021 (356), Sch 1.2[6] [7].
55AA   Amendment or variation of development applications for State significant development
(1)  A development application for State significant development may, with the agreement of the consent authority, be amended or varied by the applicant at any time before the application is determined.
(2)  An application to amend or vary a development application for State significant development must—
(a)  be in the form approved by the Planning Secretary and made available on the NSW planning portal, and
(b)  include particulars of the nature of the proposed amendments or variations, and
(c)  be prepared having regard to the State Significant Development Guidelines, and
(d)  be lodged on the NSW planning portal.
cl 55AA: Ins 2021 (356), Sch 1.2[8].
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 Schedule 1, clause 2A or 2B 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 Schedule 1, clause 2A or 2B 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]; 2021 (614), Sch 1[2].
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 or designated 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, and
(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,
are to be made available on the NSW planning portal.
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]; 2020 (312), Sch 1[16]; 2021 (691), Sch 1[1].
56A   Planning functions subject to community participation requirements
For the purposes of section 2.21(2)(f) of the Act, environmental impact assessment functions under Division 5.1 of the Act are prescribed if a species impact statement or a biodiversity development assessment report is required under section 7.8 of the Biodiversity Conservation Act 2016.
cll 56A: Ins 2019 (571), Sch 2[5].
56B   Planning authorities subject to community participation requirements
(1)  For the purposes of section 2.23(3)(c) of the Act, the community participation plan of a council applies to the exercise of the council’s relevant planning functions by the following planning authorities—
(a)  a Sydney district or regional planning panel,
(b)  a local planning panel.
(2)  For the purposes of section 2.23(3)(c) of the Act, a Sydney district or regional planning panel, or a local planning panel is not required to prepare its own community participation plan.
cll 56B: Ins 2019 (571), Sch 2[5].
Division 1A
57–57B  (Repealed)
pt 6, div 1A: Ins 2018 (756), Sch 1 [2]. Rep 2020 (312), Sch 1[17].
cl 57: Rep 2013 (79), Sch 1 [1]. Ins 2018 (756), Sch 1 [2]. Rep 2020 (312), Sch 1[17].
cll 57A: Ins 2018 (756), Sch 1 [2]. Rep 2020 (312), Sch 1[17].
cll 57B: Ins 2018 (756), Sch 1 [2]. Rep 2020 (312), Sch 1[17].
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), or
(b)  such further period as the concurrence authority may allow,
the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly.
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, or
(b)  refuses concurrence,
the concurrence authority must give written notice to the consent authority of the reasons for the imposition of the conditions or the refusal.
(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), or
(b)  such further period as the approval body may allow,
the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly.
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, and
(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),
the Planning Secretary must cause notice of that fact to be given to the consent authority.
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)(b) and (c), 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]; 2020 (312), Sch 1[18].
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, State significant development, nominated integrated development, threatened species development and Class 1 aquaculture development
pt 6, div 5, hdg: Am 2020 (167), Sch 1[21].
77   Notice of development applications
(1)  As soon as practicable after a development application is lodged with the consent authority, the consent authority must—
(a)  publish notice of the application on the consent authority’s website, and
(b)  give notice of the application to—
(i)  the public authorities (other than relevant concurrence authorities or approval bodies) that, in the opinion of the consent authority, may have an interest in the determination of the application, and
(ii)  in the case of a development application other than designated development—the persons that, in the opinion of the consent authority, 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).
(2)  The notice 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 the consent authority,
(c)  a description of the proposed development,
(d)  whether or not the development is designated development, nominated integrated development, threatened species development, Class 1 aquaculture development or State significant development,
(e)  a statement that the development application and the documents accompanying the application, including any environmental impact statement, are publicly available on the consent authority’s website for the period specified in Schedule 1 to the Act for that kind of development,
(f)  a statement that any person, during the submission period specified in Schedule 1 to the Act for that kind of development, may make submissions to the consent authority concerning the development application and that the submissions must specify the grounds of objection (if any),
(g)  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,
(h)  in the case of State significant development—whether the Minister has directed that a public hearing should be held,
(i)  in the case of designated development—a statement that, unless the Independent Planning Commission has conducted a public hearing, a person may appeal to the Land and Environment Court if the person makes a submission by way of objection and is dissatisfied with the determination of the consent authority to grant development consent,
(j)  in the case of designated development—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.
(3)  For the purposes of this clause—
(a)  if land is a lot in a strata scheme (within the meaning of the Strata Schemes Development Act 2015), 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 in a leasehold strata scheme (within the meaning of the Strata Schemes Development Act 2015), a notice to the lessor under the leasehold strata scheme and to the owners corporation is taken to be notice to the owner or occupier of each lot within the leasehold 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 77: Am 2018 (500), Sch 2 [15]. Subst 2020 (167), Sch 1[22].
78   Notice of designated development application must be exhibited on relevant land
A notice for a development application for designated development must be exhibited on the land to which the development application relates and must—
(a)  be displayed on a signpost or board, and
(b)  be clear and legible, and
(c)  be headed in capital letters and bold type “DEVELOPMENT PROPOSAL”, and
(d)  contain the following information—
(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)  a statement that the development application and the documents accompanying the application, including any environmental impact statement, are publicly available on the consent authority’s website for the period specified in Schedule 1 to the Act for designated development, and
(e)  if practicable, be capable of being read from a public place.
cl 78: Am 2008 (467), Sch 1 [4] [5]; 2018 (500), Sch 2 [16]–[20]; 2019 (571), Sch 2[6] [7]. Subst 2020 (167), Sch 1[22].
79, 80   (Repealed)
cl 79: Am 2018 (500), Sch 2 [21] [22]. Rep 2020 (167), Sch 1[22].
cl 80: Am 2018 (500), Sch 2 [23] [24]. Rep 2020 (167), Sch 1[22].
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 Additional requirements for State significant development
pt 6, div 6: Subst 2011 (510), Sch 2 [18]; 2020 (167), Sch 1[23].
82   Additional requirements for State significant development
(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 written notice—
(a)  identify the issues raised in the submissions considered by the Planning Secretary to require a response from the applicant, and
(b)  require the applicant to provide a written response to the identified issues, and
(c)  require the applicant’s written response to be prepared having regard to the State Significant Development Guidelines.
(3)  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 NSW planning portal—
(a)  the Planning Secretary’s environmental assessment requirements under Part 2 of Schedule 2,
(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 subclause (2),
(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 a 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 82: Subst 2011 (510), Sch 2 [18]; 2020 (167), Sch 1[23]. Am 2021 (356), Sch 1.2[9].
83–85B   (Repealed)
cl 83: Am 2008 (467), Sch 1 [6]. Subst 2011 (510), Sch 2 [18]. Rep 2018 (500), Sch 2 [25].
cl 84: Subst 2011 (510), Sch 2 [18]. Am 2018 (500), Sch 2 [26]. Rep 2020 (167), Sch 1[23].
cl 85: Subst 2011 (510), Sch 2 [18]. Am 2018 (500), Sch 2 [27]. Rep 2020 (167), Sch 1[23].
cl 85A: Ins 2011 (510), Sch 2 [18]. Rep 2020 (167), Sch 1[23].
cl 85B: Ins 2011 (510), Sch 2 [18]. Am 2018 (66), Sch 2 [22]. Rep 2020 (167), Sch 1[23].
Division 7 Additional requirements for nominated integrated development, threatened species development and Class 1 aquaculture development
pt 6, div 7, hdg: Subst 2019 (571), Sch 2[8]; 2020 (167), Sch 1[24].
86   Application of Division
(cf clause 65 of EP&A Regulation 1994)
(1)  This Division applies to nominated integrated development, threatened species development and Class 1 aquaculture 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]; 2019 (571), Sch 2[9].
87–89   (Repealed)
cl 87: Am 2019 (571), Sch 2[10]. Rep 2020 (167), Sch 1[25].
cl 88: Rep 2020 (167), Sch 1[25].
cl 89: Am 2018 (500), Sch 2 [28] [29]; 2019 (571), Sch 2[11]–[13]. Rep 2020 (167), Sch 1[25].
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, and
(b)  the consent authority is of the opinion that the amended, substituted or later application differs only in minor respects from the original application,
referred to in this clause as a replacement 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   (Repealed)
cl 91: Rep 2020 (167), Sch 1[25].
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 Low Rise Housing Diversity Design Guide for Development Applications published by the Department in July 2020, 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); 2020 (662), cl 3(2).
92A   Additional matters that consent authority must consider for Wagga Wagga
(1)  In determining a development application for development on land to which Wagga Wagga Local Environmental Plan 2010 applies, the consent authority must take into consideration whether the development is consistent with the Wagga Wagga Special Activation Precinct Master Plan published by the Department in May 2021.
Note—
The Master Plan is available on the NSW planning portal.
(2)  This clause does not apply to a development application made on or after 31 March 2022.
(3)  This clause prescribes matters for the purposes of section 4.15(1)(a)(iv) of the Act.
cl 92A: Ins 10.11.2000. Am 2005 No 43, Sch 7.3 [2]. Rep 2005 (600), Sch 1 [6]. Ins 2021 (234), Sch 1[1]. Am 2021 (690), Sch 1[1] [2].
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].
Subdivision 1 Development generally
pt 6, div 8A, sdiv 1, hdg: Ins 2021 (692), Sch 1[6].
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 164B, 187 or 188, subject to the terms of any condition or requirement referred to in clause 164B(4), 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]; 2019 (426), Sch 1[3] [4].
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 certifier 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 certifiers 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 certifier 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 certifier 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].
Subdivision 2 Development permitted under State Environmental Planning Policy (Housing) 2021
pt 6, div 8A, sdiv 2, hdg: Ins 2021 (692), Sch 1[7].
98EA   Definitions
In this Subdivision—
Affordable Housing Guidelines means the document titled “NSW Affordable Housing Ministerial Guidelines” published by the Department of Communities and Justice in August 2020, as approved by the Minister for Families, Communities and Disability Services from time to time.
registered community housing provider has the same meaning as in the Community Housing Providers (Adoption of National Law) Act 2012, section 13.
Registrar of Community Housing means the Registrar of Community Housing appointed under the Community Housing Providers (Adoption of National Law) Act 2012, section 10.
cl 98EA: Ins 2021 (692), Sch 1[7].
98F   Conditions relating to development involving use of buildings as build-to-rent housing
(1)  For the purposes of section 4.17(11) of the Act, the requirements set out in this clause are prescribed as conditions of development consent for development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 3, Part 4.
(2)  During the relevant period—
(a)  the development must contain at least 50 dwellings occupied, or intended to be occupied, by individuals under residential tenancy agreements, and
(b)  for development on land in Zone B3 Commercial Core—any building to which the development relates must not be subdivided into separate lots, and
(c)  for development on land in another zone—the tenanted component of the development must not be subdivided into separate lots, and
(d)  the tenanted component of the development—
(i)  must be owned and controlled by 1 person, and
(ii)  must be operated by 1 managing agent, who provides on-site management.
(3)  In this clause—
relevant period means—
(a)  for development on land in Zone B3 Commercial Core—for the period commencing on the day an occupation certificate is issued for all parts of the building or buildings to which the development relates and continuing in perpetuity, or
(b)  for development on other land—for a period of 15 years commencing on the day an occupation certificate is issued for all parts of the building or buildings to which the development relates.
tenanted component has the same meaning as in State Environmental Planning Policy (Housing) 2021, clause 71.
cl 98F: Ins 2021 (41), Sch 1. Am 2021 (692), Sch 1[8] [9].
98G   Conditions relating to certain in-fill affordable housing—the Act, s 4.17(11)
(1)  This clause applies to development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 2, Part 2, Division 1, other than—
(a)  development on land owned by the Land and Housing Corporation, or
(b)  a development application made by, or on behalf of, a public authority.
(2)  Before the issue of an occupation certificate for the development—
(a)  a restriction must be registered, in accordance with the Conveyancing Act 1919, section 88E, against the title of the property relating to the development, which will ensure the requirements of subclause (3)(a) and (b) are met, and
(b)  evidence of an agreement with a registered community housing provider for the management of the affordable housing component must be given to the Registrar of Community Housing, including the name of the registered community housing provider, and
(c)  the consent authority must be given evidence demonstrating the requirements of paragraph (a) and (b) have been met.
(3)  During the relevant period—
(a)  the affordable housing component must be used for affordable housing, and
(b)  the affordable housing component must be managed by a registered community housing provider, and
(c)  notice of a change in the registered community housing provider who manages the affordable housing component must be given to the Registrar of Community Housing and the consent authority no later than 3 months after the change, and
(d)  the registered community housing provider who manages the affordable housing component must apply the Affordable Housing Guidelines.
(4)  In this clause—
affordable housing component has the same meaning as in State Environmental Planning Policy (Housing) 2021, clause 21.
relevant period means a period of 15 years commencing on the day an occupation certificate is issued for all parts of the building or buildings to which the development relates.
cll 98G–98K: Ins 2021 (692), Sch 1[10].
98H   Boarding houses
(1)  This clause applies to development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 2, Part 2, Division 2.
(2)  Before the issue of an occupation certificate for the development—
(a)  a restriction must be registered, in accordance with the Conveyancing Act 1919, section 88E, against the title of the property relating to the development, which will ensure the requirements of subclause (3)(a) and (b) are met, and
(b)  evidence of an agreement with a registered community housing provider for the management of the boarding house must be given to the Registrar of Community Housing, including the name of the registered community housing provider, and
(c)  the consent authority must be given evidence demonstrating the requirements of paragraph (a) and (b) have been met.
(3)  From the day on which an occupation certificate is issued for the development—
(a)  the boarding house must be used for affordable housing, and
(b)  the boarding house must be managed by a registered community housing provider in accordance with a plan of management, and
(c)  notice of a change in the registered community housing provider who manages the boarding house must be given to the Registrar of Community Housing and the consent authority no later than 3 months after the change, and
(d)  notice of a change to the plan of management must be given to the consent authority no later than 3 months after the change, and
(e)  the registered community housing provider who manages the boarding house must apply the Affordable Housing Guidelines.
cll 98G–98K: Ins 2021 (692), Sch 1[10].
98I   Residential flat buildings—social housing providers, public authorities and joint ventures
(1)  This clause applies to development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 2, Part 2, Division 5, other than—
(a)  development on land owned by the Land and Housing Corporation, or
(b)  a development application made by a public authority.
(2)  Before the issue of an occupation certificate for the development—
(a)  a restriction must be registered, in accordance with the Conveyancing Act 1919, section 88E, against the title of the property relating to the development, which will ensure the requirements of subclause (3)(a) and (b) are met, and
(b)  evidence of an agreement with a registered community housing provider for the management of the residential flat building must be given to the Registrar of Community Housing, including the name of the registered community housing provider, and
(c)  the consent authority must be given evidence demonstrating the requirements of paragraph (a) and (b) have been met.
(3)  During the relevant period—
(a)  50% of the dwellings to which the development relates must be used for affordable housing (the affordable housing dwellings), and
(b)  the affordable housing dwellings must be managed by a registered community housing provider, and
(c)  notice of a change in the registered community housing provider who manages the affordable housing dwellings must be given to the Registrar of Community Housing and the consent authority no later than 3 months after the change, and
(d)  the registered community housing provider who manages the affordable housing dwellings must apply the Affordable Housing Guidelines.
(4)  In this clause—
relevant period means a period of 10 years commencing on the day an occupation certificate is issued for all parts of the building or buildings to which the development relates.
cll 98G–98K: Ins 2021 (692), Sch 1[10].
98J   Co-living housing
(1)  This clause applies to development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 3, Part 3.
(2)  From the day on which an occupation certificate is issued for the development—
(a)  the co-living housing must be managed in accordance with a plan of management by a managing agent who is contactable 24 hours a day, and
(b)  notice of a change to the plan of management must be given to the consent authority no later than 3 months after the change, and
(c)  private rooms and communal living areas in the co-living housing must contain appropriate furniture and fittings, maintained in a reasonable state of repair, for the use of residents.
cll 98G–98K: Ins 2021 (692), Sch 1[10].
98K   Seniors housing
(1)  This clause applies to development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 3, Part 5.
(2)  Before the issue of the occupation certificate for the development, a restriction will be registered, in accordance with the Conveyancing Act 1919, section 88E, against the title of the property relating to the development, which will ensure that the requirement of subclause (3) is met.
(3)  From the day on which an occupation certificate is issued for the development, only the following kinds of people may occupy the accommodation to which the development relates—
(a)  seniors or people who have a disability,
(b)  people who live in the same household with seniors or people who have a disability,
(c)  staff employed to assist in the administration and provision of services to the accommodation.
cll 98G–98K: Ins 2021 (692), Sch 1[10].
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)  For the purposes of section 4.18(1) of the Act, the consent authority must—
(a)  publish the notice of determination of a development application on the NSW planning portal within 14 days after the date of the determination, and
(b)  send the notice of determination to the following persons within 14 days after the date of determination—
(i)  a person to whom section 4.18(1)(b) of the Act requires the notice to be given,
(ii)  a person who made a submission under the Act in relation to the development application (whether or not it involved designated development).
(2)    (Repealed)
(3)  Failure to publish or 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]; 2020 (312), Sch 1[19]; 2021 (180), Sch 1[5].
103–104   (Repealed)
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]; 2018 No 63, Sch 3.4[2]–[4]; 2020 (312), Sch 1[20] [21]. Rep 2021 (689), Sch 3[3].
cl 103A: Ins 2003 No 95, Sch 2.1 [11]. Am 2018 (66), Sch 2 [22]; 2018 No 63, Sch 3.4[3]; 2020 (312), Sch 1[22]. Rep 2021 (689), Sch 3[3].
cl 104: Am 2018 (66), Sch 2 [22]; 2020 (312), Sch 1[23] [24]. Rep 2021 (689), Sch 3[3].
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.
cl 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, or
Note—
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 on the NSW planning portal nor the following day are to be taken into consideration in calculating the number of days in any of the assessment periods.
cl 107: Am 2020 (312), Sch 1[25].
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, or
(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,
whichever is the earlier, is not to be taken into consideration in calculating the number of days in any of the assessment periods.
(2)  Subclause (1) applies only if the relevant request is made within 25 days after the date on which the development application was lodged on the NSW planning portal.
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]; 2020 (312), Sch 1[25].
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, or
(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,
whichever is the earlier, is not to be taken into consideration in calculating the number of days in any of the assessment periods.
(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, and
(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),
any 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 on the NSW planning portal) is not to be taken into consideration for the purpose of calculating the number of days in any of the assessment periods.
(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]; 2020 (312), Sch 1[25].
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,
(c)  the receipt by a consent authority of a notice from the Chief Executive of the Office of Environment and Heritage under clause 68,
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.
(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 on the NSW planning portal, 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 nominated integrated development, threatened species development or Class 1 aquaculture development for which the relevant submission period exceeds the minimum period specified in clause 8A of Schedule 1 to the Act, the deemed refusal period is to be increased by that part of the submission period that exceeds the minimum period specified in clause 8A of Schedule 1 to the Act, despite subclause (1).
(3A)  Despite subclause (1), if the relevant submission period for an application for designated development exceeds the minimum period specified in clause 8 of Schedule 1 to the Act, the deemed refusal period is to be increased by that part of the submission period that exceeds that minimum period.
(4)  If the relevant submission period for a development application for designated development is more than the minimum period specified in clause 8 of Schedule 1 to the Act, 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 the minimum period specified in clause 9 of Schedule 1 to the Act, the deemed refusal period is to be increased by that part of the submission period that exceeds the minimum period specified in clause 9 of Schedule 1 to the Act, despite subclause (1).
(6)  If the relevant submission period for a development application for State significant development is more than the minimum period specified in clause 9 of Schedule 1 to the Act, 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 82(2) 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]; 2019 (571), Sch 2[14]–[18]; 2020 (312), Sch 1[25] [26].
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 the period specified in clause 20A of Schedule 1 to the Act, but otherwise in the same manner as the original development application was notified or advertised.
(3)    (Repealed)
(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)    (Repealed)
(7)  During the period referred to in subclause (2), 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]; 2019 (571), Sch 2[19]–[21].
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)
(1)  An application under section 4.54 of the Act for the extension of time to commence development—
(a)    (Repealed)
(b)  must identify the development consent to which it relates, and
(c)  must indicate why the consent authority should extend the time.
(2)  The application must be lodged on the NSW planning portal.
cl 114: Am 2018 (66), Sch 2 [22]; 2020 (312), Sch 1[27] [28]; 2021 (180), Sch 1[6].
114A   (Repealed)
cl 114A: Ins 2003 No 60, Sch 2 [3]. Rep 2005 (391), Sch 1 [3].
115   Application for modification of development consent except for State significant development
(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 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),
(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).
(1A)  An application for modification of development consent must—
(a)  be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and
(b)  be accompanied by the information and documents specified in the approved form and information or documents required by the Act or this Regulation, and
(c)  be lodged on the NSW planning portal.
Note—
An application for the modification of a development consent granted by the Court is not required to be lodged with the Court.
(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)    (Repealed)
(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.
(11)  In the case of an application for modification of a Penrith Lakes Development Corporation development consent where the proposed modification relates only to part of the land to which the development consent applies, the requirement to include the owner’s consent in the application under subclause (1)(h) is a requirement to include the consent of the owner of the part of the land to which the modification relates only.
(12)  In subclause (11), Penrith Lakes Development Corporation development consent means the development consents DA2, DA3 and DA4 granted to the Penrith Lakes Development Corporation Limited in respect of land to which State Environmental Planning Policy (Penrith Lakes Scheme) 1989 applies on 24 February 1987, 27 June 1995 and 9 September 1998 respectively.
(13)  This clause does not apply to an application for modification of a development consent for State significant development.
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]; 2020 (178), cl 3; 2020 (312), Sch 1[29]–[32]; 2021 (356), Sch 1.2[10] [11].
115AA   Application for modification of development consent for State significant development
An application for modification of a development consent for State significant development under the Act, section 4.55(1), (1A) or (2) or 4.56(1) must—
(a)  be in the form approved by the Planning Secretary and made available on the NSW planning portal, and
(b)  include particulars of the nature of the proposed modification to the development consent, and
(c)  be prepared having regard to the State Significant Development Guidelines, and
(d)  be lodged on the NSW planning portal.
cl 115AA: Ins 2021 (356), Sch 1.2[12].
115A   Application fee for modification of development consent
(1)  An applicant for modification of a development consent under clause 115 or 115AA must pay the relevant fee prescribed under Part 15.
(2)  The application for modification of a development consent is taken not to be lodged until the fee prescribed under Part 15 has been paid.
cl 115A: Ins 2020 (312), Sch 1[33]. Am 2021 (356), Sch 1.2[13].
116   (Repealed)
cl 116: Am 7.2.2003. Subst 2011 (510), Sch 2 [36]. Rep 2020 (312), Sch 1[34].
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 community participation 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 community participation 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 community participation 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]; 2019 (571), 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)  nominated integrated development, threatened species development or Class 1 aquaculture development where the application was made to a consent authority other than a council.
(2)  Notice of the application must be published on the website of the relevant consent authority, that is—
(a)  the website of the consent authority that granted the development consent, or
(b)  the website of the consent authority to which the original development application was made, if development consent was granted by the Court on appeal, or
(c)  the website of 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 minimum period specified in clause 10 of Schedule 1 to the Act,
(d)  a statement that, if the application is approved, there is no right of appeal to the Court by an objector.
(6)    (Repealed)
(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]; 2019 (571), Sch 2[23]–[25]; 2020 (167), Sch 1[26]–[28].
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 the minimum period specified in clause 10 of Schedule 1 to the Act but otherwise in the same manner as the original development application was notified or advertised.
(3)    (Repealed)
(4)  If an application to which this clause applies is required by this clause 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)  the minimum public exhibition period required by clause 10 of Schedule 1 to the Act, 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 clause 10 of Schedule 1 to the Act, 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]; 2019 (571), Sch 2[26]–[30].
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].
119B   Rejection of application for modification of development consent
A consent authority may reject an application for modification of a development consent for State significant development within 7 days after receiving the application if the application is—
(a)  not in the form approved by the Planning Secretary, or
(b)  considered incomplete for reasons specified in writing to the applicant by the Planning Secretary.
cl 119B: Ins 2021 (356), Sch 1.2[14].
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).
(3)  If an application for modification of a development consent is amended after the application is lodged, the application that is made available for inspection must include the details of the amendment.
cl 121: Am 2021 (377), Sch 1[1].
121A   Consent authority may request additional information from applicant—the Act, ss 4.55(6) and 4.64(1)(q)
(1)  A consent authority may request an applicant for modification of a development consent provide the consent authority with additional information about the development that the consent authority considers necessary to properly consider the application for modification.
(2)  The request must—
(a)  be made by means of the NSW planning portal, and
(b)  specify a reasonable period within which the information must be provided to the consent authority.
(3)  The applicant may, by means of the NSW planning portal, notify the consent authority that the applicant will not provide the information.
(4)  An applicant is taken to have not provided the information if the applicant has not provided the information by the end of—
(a)  the period specified under subclause (2)(b), or
(b)  a further period allowed by the consent authority.
cll 121A: Ins 2021 (377), Sch 1[2].
121B   Amendment of modification application—the Act, s 4.64(1)(q)
(1)  An application for modification of a development consent may, with the agreement of the consent authority, be amended by the applicant at any time before the application is determined by lodging an amendment on the NSW planning portal.
(2)  If the amendment results in a change to the development, the applicant must provide the consent authority with details of the nature of the change to the application.
cll 121B: Ins 2021 (377), Sch 1[2].
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, by means of the NSW planning portal, 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]; 2020 (312), Sch 1[35].
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].
122B   Days not to be included in calculating period for deemed refusal of modification application
(1)  A day that occurs between a request by a consent authority for additional information from an applicant for modification of a development consent under clause 121A, and the earlier of the following days, is not to be included in calculating the relevant period for the application—
(a)  the day on which the information is provided to the consent authority,
(b)  the day on which the applicant notifies, or is taken to have notified, the consent authority that the information will not be provided.
(2)  Subclause (1) applies only if the request is made within 25 days after the date on which the application for modification of the development consent is lodged on the NSW planning portal.
(3)  The following days are not to be included in calculating the relevant period for an application for modification of a development consent—
(a)  the day on which the application is lodged on the NSW planning portal,
(b)  the day following the day in paragraph (a).
(4)  In this clause—
relevant period for an application for modification of a development consent means the period of 40 days specified in clause 122A after which the application is taken to have been refused.
cl 122B: Ins 2021 (377), Sch 1[3].
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
(1)  For the purposes of section 4.7(2)(h) of the Act, the determination of an application to modify a development consent under section 4.55 of the Act is, except as provided by subclause (2), prescribed as a function that is to be exercised on behalf of a regional panel by a council.
(2)  A council is not to determine, on behalf of a regional panel, an application to modify a development consent under section 4.55(2) of the Act if the application is of a kind specified in the Instruction on Functions Exercisable by Council on Behalf of Sydney District or Regional Planning Panels—Applications to Modify Development Consents published on the NSW planning portal on 30 June 2020.
cl 123BA: Ins 2018 (363), Sch 1 [1]. Subst 2020 (367), cl 3.
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
(1)  An application for a review of a determination of a development application under section 8.3 of the Act must—
(a)  be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and
(b)  be lodged on the NSW planning portal.
(2)  A council must, as soon as practicable after a review of a determination of a development application under section 8.3 of the Act is determined, notify the applicant of the result of a review by means of the NSW planning portal.
cl 123G: Ins 2011 (70), Sch 1 [10]. Am 2018 (66), Sch 2 [22]. Subst 2020 (312), Sch 1[36].
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 notice by the council of its decision to reject and not to determine the application.
(2)  A council must, as soon as practicable after the review is determined, notify the applicant of the result of the review by means of the NSW planning portal.
(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.
cl 123H: Ins 2011 (70), Sch 1 [10]. Am 2018 (66), Sch 2 [22]; 2020 (312), Sch 1[37] [38].
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 for the period required by clause 20A of Schedule 1 to the Act.
(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—
(a)  notify the applicant of the result of the review by means of the NSW planning portal, and
(b)  if the application applies to land owned by a Local Aboriginal Land Council—notify the New South Wales Aboriginal Land Council of the result of the review (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]; 2019 (571), Sch 2[31]; 2020 (312), Sch 1[39].
Division 13 Validity of development consents
124   Validity of development consents
For the purposes of section 4.59 of the Act, a notice relating to the granting of a development consent must be published on the consent authority’s website and must describe the land and the development the subject of the development consent.
cl 124: Am 2018 (66), Sch 2 [22]. Subst 2020 (167), Sch 1[29].
124AA   When work is physically commenced
(1)  For the purposes of section 4.53(7) of the Act, work is not taken to have been physically commenced merely by the doing of any one or more of the following—
(a)  creating a bore hole for soil testing,
(b)  removing water or soil for testing,
(c)  carrying out survey work, including the placing of pegs or other survey equipment,
(d)  acoustic testing,
(e)  removing vegetation as an ancillary activity,
(f)  marking the ground to indicate how land is to be developed.
(2)  This clause does not apply to a development consent granted before the commencement of this clause.
cl 124AA: Ins 2020 (206), cl 3.
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: Ins 2019 (544), cl 3.
124K   Councils required to constitute single local planning panel
For the purposes of the Act, section 2.17(2)(c), the councils of the following local government areas are prescribed—
(a)  Central Coast,
(b)  Wingecarribee.
cl 124K: Ins 2019 (544), cl 3. Subst 2021 (273), 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 must—
(a)  be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and
(b)  contain all of the information that is specified in the approved form or required by the Act and this Regulation, and
(c)  be accompanied by the documents that are specified in Part 2 of Schedule 1 or required by the Act and this Regulation, and
(d)  be lodged on the NSW planning portal.
(2)  The applicant must be notified, by means of the NSW planning portal, that the application for a complying development certificate has been lodged.
(2A)  If the application is made in relation to development for the purposes of a new building, or the alteration of or addition to an existing building, to which Part 5A of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 applies, the application must also contain information on whether the land on which the development is to be carried out—
(a)  is used, or was formerly used, for a purpose listed in Table 1 to clause 3.2.1 of the document entitled Managing Land Contamination Planning Guidelines, SEPP 55—Remediation of Land and published in 1998 by the Department of Urban Affairs and Planning and the Environment Protection Authority, or
(b)  is on the list of sites notified under section 60 of the Contaminated Land Management Act 1997.
(2B)  Subclause (2A) 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 that Policy.
(3)  In determining whether an alteration, enlargement or extension of a BASIX affected building is BASIX affected development, the certifier 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 certifier 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); 2018 No 63, Sch 3.4[4] [5]; 2019 (426), Sch 1[5]; 2020 (312), Sch 1[40].
127   Council or registered certifier may require additional information
(cf clause 76 of EP&A Regulation 1994)
(1)  A council or registered certifier may require the applicant for a complying development certificate to give the council or registered certifier any additional information concerning the proposed development that is essential to the council’s or registered certifier’s proper consideration of the application.
(1A)  A council or a registered 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 registered certifier’s duty to determine an application for a complying development certificate.
cl 127: Am 2009 (386), Sch 1 [1]; 2018 No 63, Sch 3.4[2] [5] [6].
128   Special provision relating to complying development certificates for Western Sydney Aerotropolis
An application for a complying development certificate for development in the Western Sydney Aerotropolis under State Environmental Planning Policy (Western Sydney Aerotropolis) 2020 must be accompanied by a current Aerotropolis certificate issued under that Policy.
cl 128: Am 2018 No 63, Sch 3.4[5]. Rep 2020 (312), Sch 1[41]. Ins 2020 (536), Sch 1[1].
129   Special provision relating to complying development certificates for development on land within Activation Precincts
(1)  An application for a complying development certificate for proposed development on land within an Activation Precinct under State Environmental Planning Policy (Activation Precincts) 2020 must be accompanied by a current Activation Precinct certificate.
(2)  This clause does not apply to or with respect to an application for a complying development certificate made by a public authority (other than the Development Corporation within the meaning of that Policy).
cl 129: Rep 2013 (79), Sch 1 [1]. Ins 2020 (265), Sch 1[2].
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 certifier 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, or
(b)  an alteration or addition to an existing building that will result in its building height being more than 12 metres,
unless the certifier 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.
cl 129AA: Ins 2017 (491), Sch 1 [3].
129AB   Restriction on issue of complying development certificate for certain development related to educational establishments
A certifier 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 certifier must not issue a complying development certificate for development unless a council or a registered 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]; 2018 No 63, Sch 3.4[2].
129C   Record of site inspections
(1)  A council or registered certifier must make a record of each inspection carried out by the council or registered certifier for the purposes of clause 129B.
(2)  Any council or registered certifier who is required to make such a record but is not the certifier 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 certifier, by means of the NSW planning portal.
(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 a registered certifier, the identity of the registered certifier, including, in a case where the registered certifier is a registered 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 a registered certifier, the registration number of the registered certifier, including, in a case where the registered certifier is a registered body corporate, the registration 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]. Am 2018 No 63, Sch 3.4[2]–[5] [7]; 2020 (312), Sch 1[42].
129D   Council to be notified of significant fire safety issues
(1)  A certifier is required to give written notice to the council in accordance with this clause if—
(a)  an application has been made to the certifier 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 certifier 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 certifier becomes aware of the fire safety issue.
(3)  However, the certifier 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 certifier.
cl 129D: Ins 2014 (452), Sch 1 [3].
129E   Application form to modify complying development
(1)  The Planning Secretary is to determine the form of an application under section 4.30 of the Act to modify the development the subject of a complying development certificate or application.
(2)  This Part applies to an application to modify complying development in the same way as it applies to the original application.
cl 129E: Ins 2020 (312), Sch 1[43].
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 State Environmental Planning Policy (Housing) 2021, Chapter 3, Parts 1 or 2.
(2)  A certifier 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 certifier 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 certifier 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 certifier,
(b)  a statement that the certifier 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 certifier,
(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
(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]; 2021 (692), Sch 1[11].
130   Procedure for determining application for complying development certificate and notification requirements
(cf clause 77 of EP&A Regulation 1994)
(1)  A certifier 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 a performance solution to the performance requirements corresponding to those deemed-to-satisfy provisions.
(2A)  A certifier must not issue a complying development certificate for development that involves a performance solution under the Building Code of Australia for building work unless the certifier—
(a)  has obtained or been given a report about the performance solution, and
(b)  is satisfied that—
(i)  the report was prepared in accordance with the requirements set out in A2.2(4) of the Building Code of Australia, and
(ii)  the building work plans and specifications show and describe the physical elements of the performance solution, if possible.
(2B)–(2D)    (Repealed)
(2E)  A certifier 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 a performance solution relating to a fire safety requirement under the Building Code of Australia unless—
(a)  the certifier has obtained or been provided with a written report by another registered certifier, who is a registered 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 performance solution.
(3)  Evidence of the issue of a complying development certificate must be endorsed by the council or the registered certifier on any plans, specifications and any other documents that were lodged with the application for the certificate or submitted to the registered certifier in accordance with clause 126.
(4)  For the purposes of section 4.28(11) of the Act, the registered certifier must, within 2 days after the date of the determination, by means of the NSW planning portal—
(a)  notify the applicant of the determination, and
(b)  notify the council of the determination and provide the council with the following—
(i)  the determination, together with the application to which it relates,
(ii)  any endorsed plans, specifications or other documents that were lodged with the application or submitted to the registered certifier in accordance with clause 127,
(iii)  any complying development certificate issued as a result of the determination, together with any associated fire safety schedule,
(iv)  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.
(5)  A report about a performance solution for a fire safety requirement must be prepared by or on behalf of—
(a)  for a prescribed report—a person who is an accredited practitioner (fire safety) and a fire safety engineer, or
(b)  otherwise—a person who is an accredited practitioner (fire safety).
(6)  In this clause—
prescribed report means a report about a performance solution for a requirement set out in EP1.4, EP2.1, EP2.2, DP4 or DP5 in Volume 1 of the Building Code of Australia for—
(a)  a class 9a building that is proposed to have a floor area of 2,000 square metres or more, or
(b)  a building, other than a class 9a building, that is proposed to have a fire compartment with a floor area of more than 2,000 square metres, or
(c)  a building, other than a class 9a building, that is proposed to have a floor area of more than 6,000 square metres.
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]; 2018 No 63, Sch 3.4[2] [4] [8] [9]; 2019 (426), Sch 1[6]–[8]; 2020 (312), Sch 1[44]; 2020 No 30, Sch 2.14[1]; 2021 (689), Sch 3[4] [5].
130A   Copy of particular documents to be given to NSW Rural Fire Service and council
(1)  If a certifier issues a complying development certificate for development on bush fire prone land, the certifier 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 certifier is not a council, the certifier 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,
(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,
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.
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 certifier that issued it, including, in a case where the certifier is a registered body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,
(b)  if the certifier is a registered certifier, the registration number of the certifier, including, in a case where the certifier is a registered body corporate, the registration number of the individual who issued the certificate on behalf of the body corporate,
(b1)  if the certifier is a registered certifier who is an individual, the signature of the registered certifier,
(b2)  if an individual issued the certificate on behalf of the certifier, 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 a performance 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 person who prepared the report or on whose behalf the report was prepared,
(vi)  if the person referred to in subparagraph (iv) is an accredited practitioner (fire safety) and a registered certifier—the certifier’s registration number,
(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 certifier.
(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]; 2018 No 63, Sch 3.4[2]–[4] [7] [10]; 2019 (426), Sch 1[6]; 2021 (689), Sch 3[6].
135   Notice under section 86 of the Act of appointment of principal certifier
(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 certifier, and of the person by whom the principal certifier was appointed,
(f)  if the principal certifier is a registered certifier—
(i)  his or her registration number, and
(ii)    (Repealed)
(iii)  a statement signed by the registered certifier to the effect that he or she consents to being appointed as principal certifier, and
(iv)  a telephone number on which he or she may be contacted for business purposes,
and, if the consent authority so requires, must be in the form approved by that authority.
cl 135: Am 2003 No 95, Sch 2.1 [15]–[18]; 2005 No 115, Sch 3.3 [4]; 2018 No 63, Sch 3.4[2]–[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 certifier by whom the notice is given,
(b)  a telephone number on which the principal certifier 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,
(f)  a statement signed by or on behalf of the principal certifier 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,
and, if the consent authority so requires, must be in the form approved by that authority.
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 164B, 187 or 188, subject to the terms of any condition or requirement referred to in clause 164B(4), 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]; 2019 (426), Sch 1[3] [4].
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 certifier 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 certifier 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 an accredited practitioner (fire safety) 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 certifier with a statement that the certifier 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 certifier with a statement that the principal certifier 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]; 2018 No 63, Sch 3.4[9].
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, or
(c)  the demolition of a building,
must 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.
(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, or
(c)  the demolition of a building,
must 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.
(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
(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 certifier 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 certifiers 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 certifier 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 certifier 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 certifier 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 certifier 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 Transport for NSW 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 Transport for NSW must be complied with.
cl 136I: Ins 2013 (705), Sch 1 [21]. Am 2017 (491), Sch 1 [4]; 2020 No 30, Sch 4.18.
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 certifier 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 certifier 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 certifier for building work or subdivision work to be carried out on a site, and over which the principal certifier 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   Validity of complying development certificates
For the purposes of section 4.59 of the Act, a notice relating to the issue of a complying development certificate (including a certificate that is issued by a registered certifier) that describes the land and the development the subject of the certificate must be published on the relevant council’s website.
cl 137: Am 2018 (66), Sch 2 [22]. Subst 2020 (167), Sch 1[30]. Am 2020 (312), Sch 1[45] [46].
Parts 8, 9
138–164C  (Repealed)
pt 8: Rep 2021 (689), Sch 3[3].
pt 8, div 1: Rep 2021 (689), Sch 3[3].
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]; 2018 No 63, Sch 3.4[2]–[4] [7]; 2019 (426), Sch 1[9]. Rep 2021 (689), Sch 3[3].
cl 138A: Ins 2019 (426), Sch 1[10]. Rep 2021 (689), Sch 3[3].
pt 8, div 2: Rep 2021 (689), Sch 3[3].
cl 139: Am 2008 No 36, Sch 4.2 [2]; 2019 (426), Sch 1[5]; 2020 (312), Sch 1[47] [48]. Rep 2021 (689), Sch 3[3].
cl 139A: Ins 2003 No 95, Sch 2.1 [26]. Am 2020 (312), Sch 1[49]. Rep 2021 (689), Sch 3[3].
cl 140: Am 2011 (64), Sch 1 [4] [5]; 2019 (426), Sch 1[11]. Rep 2021 (689), Sch 3[3].
cl 141: Rep 2020 (312), Sch 1[50].
cl 142: Am 19.7.2002; 2003 No 95, Sch 2.1 [27]; 2009 (39), Sch 1 [5] [6]; 2013 (705), Sch 1 [22]; 2019 (426), Sch 1[12]; 2020 (312), Sch 1[51]–[53]. Rep 2021 (689), Sch 3[3].
cl 142A: Ins 2019 (571), Sch 2[32]. Rep 2021 (689), Sch 3[3].
cl 143: Am 2007 (342), Sch 1 [20]; 2019 (426), Sch 1[3] [4]. Rep 2021 (689), Sch 3[3].
cl 143A: Ins 26.7.2002. Am 2005 (599), Sch 1 [12]. Subst 2015 (315), Sch 1 [7]. Rep 2021 (689), Sch 3[3].
cl 143B: Ins 2008 No 36, Sch 4.2 [3]. Am 2014 (452), Sch 1 [8]; 2019 (426), Sch 1[13]. Rep 2021 (689), Sch 3[3].
cl 143C: Ins 2009 (39), Sch 1 [7]. Am 2018 No 63, Sch 3.4[2]–[4] [7]; 2019 (426), Sch 1[11] [14]; 2020 (312), Sch 1[54]. Rep 2021 (689), Sch 3[3].
cl 144: Am 2009 (39), Sch 1 [8]; 2015 (583), Sch 1 [3] [4]; 2018 (499), Sch 1 [2] [3]; 2019 (426), Sch 1[6] [7]; 2020 (312), Sch 1[55]; 2020 (715), cl 3(1)–(3); 2021 (180), Sch 1[7]. Rep 2021 (689), Sch 3[3].
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]. Am 2018 No 63, Sch 3.4[9]; 2019 (426), Sch 1[6] [7]. Rep 2021 (689), Sch 3[3].
cl 145: Am 25.6.2004; 2005 (599), Sch 1 [13]; 2006 (600), Sch 1 [12]; 2007 (342), Sch 1 [21]–[25]; 2019 (426), Sch 1[3] [4] [15] [16]. Rep 2021 (689), Sch 3[3].
cl 146: Am 2005 (339), Sch 1 [16]; 2007 (342), Sch 1 [26]; 2018 (500), Sch 2 [40] [41]; 2019 (426), Sch 1[17]. Rep 2021 (689), Sch 3[3].
cl 146A: Ins 2011 (64), Sch 1 [6]. Am 2019 (426), Sch 1[17] [18]. Rep 2021 (689), Sch 3[3].
cl 146B: Ins 2017 (307), Sch 1 [7]. Am 2018 (500), Sch 2 [42]; 2018 No 63, Sch 3.4[9]; 2019 (426), Sch 1[19]. Rep 2021 (689), Sch 3[3].
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]; 2018 No 63, Sch 3.4[2]–[4] [7] [10]; 2019 (426), Sch 1[6] [20]. Rep 2021 (689), Sch 3[3].
cl 148: Am 2003 No 95, Sch 2.1 [30]. Rep 2021 (689), Sch 3[3].
pt 8, div 2A: Ins 2019 (426), Sch 1[21]. Rep 2021 (689), Sch 3[3].
cl 148A: Ins 2019 (426), Sch 1[21]. Am 2020 (312), Sch 1[56] [57]. Rep 2021 (689), Sch 3[3].
cl 148B: Ins 2019 (426), Sch 1[21]. Am 2020 (312), Sch 1[58]. Rep 2021 (689), Sch 3[3].
cl 148C: Ins 2019 (426), Sch 1[21]. Rep 2021 (689), Sch 3[3].
cl 148D: Ins 2019 (426), Sch 1[21]. Am 2020 (312), Sch 1[59]. Rep 2021 (689), Sch 3[3].
cl 148E: Ins 2019 (426), Sch 1[21]. Am 2020 (312), Sch 1[51] [60]. Rep 2021 (689), Sch 3[3].
cl 148F: Ins 2019 (426), Sch 1[21]. Rep 2021 (689), Sch 3[3].
cl 148G: Ins 2019 (426), Sch 1[21]. Rep 2021 (689), Sch 3[3].
cl 148H: Ins 2019 (426), Sch 1[21]. Rep 2021 (689), Sch 3[3].
cl 148I: Ins 2019 (426), Sch 1[21]. Rep 2021 (689), Sch 3[3].
cl 148J: Ins 2019 (571), Sch 2[33]. Rep 2021 (689), Sch 3[3].
pt 8, div 3: Rep 2021 (689), Sch 3[3].
cl 149: Am 25.6.2004; 2005 (599), Sch 1 [14]; 2006 (600), Sch 1 [13] [14]; 2008 No 36, Sch 4.2 [5]; 2019 (426), Sch 1[5] [22]; 2020 (312), Sch 1[61] [62]; 2020 (391), Sch 1[1]. Rep 2021 (689), Sch 3[3].
cl 149A: Ins 2011 (64), Sch 1 [7]. Am 2011 (510), Sch 2 [40]; 2019 (426), Sch 1[23]. Rep 2021 (689), Sch 3[3].
cl 150: Rep 2020 (312), Sch 1[63].
cl 151: Am 2003 No 95, Sch 2.1 [31]; 9.7.2004; 2019 (426), Sch 1[24]–[27]; 2020 (312), Sch 1[51] [64]. Rep 2021 (689), Sch 3[3].
cl 151A: Ins 2019 (571), Sch 2[34]. Rep 2021 (689), Sch 3[3].
cl 152: Am 2015 (583), Sch 1 [5]–[7]; 2017 (307), Sch 1 [10] [11]; 2019 (426), Sch 1[6] [28]; 2020 (312), Sch 1[65]; 2021 (180), Sch 1[8]. Rep 2021 (689), Sch 3[3].
cl 152A: Ins 2017 (307), Sch 1 [12]. Am 2019 (426), Sch 1[28]; 2020 (312), Sch 1[66]; 2021 (180), Sch 1[9]. Rep 2021 (689), Sch 3[3].
cl 152B: Ins 2017 (307), Sch 1 [12]. Am 2019 (426), Sch 1[6]–[8]. Rep 2021 (689), Sch 3[3].
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]; 2019 (426), Sch 1[29]–[32]. Rep 2021 (689), Sch 3[3].
cl 153A: Ins 2007 (19), Sch 1 [4]. Subst 2008 (506), Sch 1 [8]. Rep 2017 (307), Sch 1 [13].
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]; 2019 (426), Sch 1[15] [33]–[35]. Rep 2021 (689), Sch 3[3].
cl 154A: Ins 26.7.2002. Am 2005 (599), Sch 1 [15]. Subst 2015 (315), Sch 1 [8]. Rep 2021 (689), Sch 3[3].
cl 154B: Ins 25.6.2004. Am 2005 (599), Sch 1 [16]; 2006 (600), Sch 1 [15] [16]; 2007 (342), Sch 1 [30]; 2019 (426), Sch 1[36]. Rep 2021 (689), Sch 3[3].
cl 154C: Ins 2006 (362), Sch 1 [1]. Am 2006 (600), Sch 1 [17]–[19]; 2010 (759), Sch 1 [7]–[9]; 2019 (426), Sch 1[37] [38]. Rep 2021 (689), Sch 3[3].
cl 154D: Ins 2013 (705), Sch 1 [27]. Rep 2014 (452), Sch 1 [9]. Ins 2016 (303), Sch 1 [9]. Am 2019 (426), Sch 1[36] [39]. Rep 2021 (689), Sch 3[3].
cl 154E: Ins 2019 (426), Sch 1[40]. Rep 2021 (689), Sch 3[3].
cl 154F: Ins 2020 (391), Sch 1[2]. Rep 2021 (689), Sch 3[3].
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]; 2018 No 63, Sch 3.4[2]–[4] [7] [10]; 2019 (426), Sch 1[6] [41] [42]; 2020 No 30, Sch 2.14[2]. Rep 2021 (689), Sch 3[3].
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]; 2019 (426), Sch 1[43]–[46]. Rep 2021 (689), Sch 3[3].
cl 156A: Ins 2019 (426), Sch 1[47]. Rep 2021 (689), Sch 3[3]. Rep 2021 (689), Sch 3[3].
pt 8, div 4: Rep 2021 (689), Sch 3[3].
cl 157: Am 2002 No 83, Sch 2.8; 2008 No 36, Sch 4.2 [7]; 2009 No 119, Sch 2.10; 2019 (426), Sch 1[5] [48] [49]; 2020 (312), Sch 1[67]–[70]; 2021 (104), cl 3(1) (2). Rep 2021 (689), Sch 3[3].
cl 158: Am 2011 (64), Sch 1 [8] [9]. Rep 2021 (689), Sch 3[3].
cl 159: Rep 2020 (312), Sch 1[71].
cl 160: Am 2003 No 95, Sch 2.1 [33]; 2008 (467), Sch 1 [22]; 2018 No 63, Sch 3.4[2]–[4] [7]; 2020 (312), Sch 1[51] [72]. Rep 2021 (689), Sch 3[3].
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. Rep 2019 (426), Sch 1[50].
cl 160B: Ins 2019 (571), Sch 2[35]. Rep 2021 (689), Sch 3[3].
pt 8, div 5: Rep 2021 (689), Sch 3[3].
cl 161: Am 2019 (426), Sch 1[51]. Rep 2021 (689), Sch 3[3].
cl 161A: Ins 2019 (426), Sch 1[52]. Rep 2021 (689), Sch 3[3].
cl 161B: Ins 2019 (426), Sch 1[52]. Rep 2021 (689), Sch 3[3].
cl 162: Subst 2003 No 95, Sch 2.1 [34]. Am 2008 (467), Sch 1 [23] [24]. Subst 2019 (426), Sch 1[53]. Rep 2021 (689), Sch 3[3].
cl 162AA: Ins 2019 (426), Sch 1[53]. Rep 2021 (689), Sch 3[3].
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]; 2019 (426), Sch 1[54]–[56]. Rep 2021 (689), Sch 3[3].
cl 162AB: Ins 2013 (236), Sch 1 [4]. Subst 2014 (286) Sch 1 [4]. Am 2019 (426), Sch 1[57]. Rep 2021 (689), Sch 3[3].
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]; 2018 No 63, Sch 3.4[2] [3] [7]; 2019 (426), Sch 1[58]. Rep 2021 (689), Sch 3[3].
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]; 2018 No 63, Sch 3.4[3]; 2019 (426), Sch 1[27] [59]. Rep 2021 (689), Sch 3[3].
cl 162D: Ins 2014 (452), Sch 1 [10]. Am 2019 (426), Sch 1[60]–[62]. Rep 2021 (689), Sch 3[3].
cl 163: Subst 2003 No 95, Sch 2.1 [36]. Am 9.7.2004. Rep 2021 (689), Sch 3[3].
cl 164: Rep 2021 (689), Sch 3[3].
cl 164A: Ins 25.6.2004. Am 2005 (599), Sch 1 [17]–[19]; 2006 (600), Sch 1 [20] [21]. Rep 2021 (689), Sch 3[3].
cl 164B: Ins 2017 (307), Sch 1 [17]. Am 2018 No 63, Sch 3.4[9] [10]. Rep 2021 (689), Sch 3[3].
cl 164C: Ins 2019 (426), Sch 1[63]. Rep 2021 (689), Sch 3[3].
Part 9
165–190B  (Repealed)
pt 9: Rep 2021 (689), Sch 3[3].
pt 9, div 1: Rep 2021 (689), Sch 3[3].
cl 165: Am 19.7.2002; 2013 (705), Sch 1 [30]–[32]; 2014 (452), Sch 1 [11]. Rep 2021 (689), Sch 3[3].
cl 166: Am 2006 (89), Sch 1 [2]; 2013 (705), Sch 1 [33]. Rep 2021 (689), Sch 3[3].
cl 167: Am 2006 (89), Sch 1 [3]; 2007 (496), Sch 1 [27]; 2018 (499), Sch 1 [4]; 2021 (171), Sch 1[1]. Rep 2021 (689), Sch 3[3].
cl 167A: Ins 2017 (307), Sch 1 [18]. Rep 2018 No 63, Sch 3.4[11].
pt 9, div 2: Rep 2021 (689), Sch 3[3].
cl 168: Am 19.7.2002; 2013 (705), Sch 1 [34] [35]. Rep 2021 (689), Sch 3[3].
cl 168A: Ins 19.7.2002. Rep 2013 (705), Sch 1 [36].
cl 168B: Ins 2012 (668), Sch 1 [3]. Rep 2021 (689), Sch 3[3].
pt 9, div 3: Rep 2021 (689), Sch 3[3].
cl 169: Rep 2021 (689), Sch 3[3].
pt 9, div 4: Rep 2021 (689), Sch 3[3].
cl 170: Am 19.7.2002; 2003 No 95, Sch 2.1 [37]; 2013 (705), Sch 1 [37]; 2019 (426), Sch 1[64]. Rep 2021 (689), Sch 3[3].
cl 171: Rep 2021 (689), Sch 3[3].
cl 172: Rep 2021 (689), Sch 3[3].
cl 173: Am 2019 (426), Sch 1[65]. Rep 2021 (689), Sch 3[3].
cl 174: Am 2017 (307), Sch 1 [19]. Rep 2021 (689), Sch 3[3].
pt 9, div 5: Rep 2021 (689), Sch 3[3].
cl 175: Am 2003 No 95, Sch 2.1 [38]; 2017 (307), Sch 1 [20]; 2018 No 63, Sch 3.4[9]. Rep 2021 (689), Sch 3[3].
cl 176: Rep 2021 (689), Sch 3[3].
cl 177: Am 2002 No 134, Sch 2.1 [25]; 2017 (307), Sch 1 [21]. Rep 2021 (689), Sch 3[3].
cl 178: Am 2017 (307), Sch 1 [22]; 2018 No 63, Sch 3.4[9]. Rep 2021 (689), Sch 3[3].
cl 179: Rep 2021 (689), Sch 3[3].
cl 180: Am 2002 No 134, Sch 2.1 [26]. Rep 2021 (689), Sch 3[3].
cl 181: Am 2017 (307), Sch 1 [23] [24]; 2018 No 63, Sch 3.4[10]. Rep 2021 (689), Sch 3[3].
pt 9, div 6: Rep 2021 (689), Sch 3[3].
cl 182: Rep 2021 (689), Sch 3[3].
pt 9, div 7: Rep 2021 (689), Sch 3[3].
cl 183: Am 2015 (424), Sch 1 [2]. Rep 2021 (689), Sch 3[3].
cl 184: Am 2015 (424), Sch 1 [3]. Rep 2021 (689), Sch 3[3].
cl 185: Am 2015 (424), Sch 1 [4]. Rep 2021 (689), Sch 3[3].
cl 186: Am 2015 (424), Sch 1 [5]. Rep 2021 (689), Sch 3[3].
pt 9, div 7A: Ins 2006 (89), Sch 1 [4]. Rep 2021 (689), Sch 3[3].
cl 186A: Ins 2006 (89), Sch 1 [4]. Am 2007 No 9, Sch 5.8; 2013 No 19, Sch 4.20 [1]; 2019 (426), Sch 1[66]. Rep 2021 (689), Sch 3[3].
cl 186AA: Ins 2010 (759), Sch 1 [10]. Am 2013 No 19, Sch 4.20 [2]. Rep 2021 (689), Sch 3[3].
cl 186B: Ins 2006 (89), Sch 1 [4]. Am 2010 (759), Sch 1 [11]–[13]. Rep 2021 (689), Sch 3[3].
cl 186C: Ins 2006 (89), Sch 1 [4]. Am 2010 (759), Sch 1 [14]. Rep 2021 (689), Sch 3[3].
cl 186D: Ins 2006 (89), Sch 1 [4]. Rep 2021 (689), Sch 3[3].
cl 186E: Ins 2006 (89), Sch 1 [4]. Rep 2021 (689), Sch 3[3].
cl 186F: Ins 2006 (89), Sch 1 [4]. Rep 2021 (689), Sch 3[3].
cl 186G: Ins 2010 (759), Sch 1 [15]. Rep 2021 (689), Sch 3[3].
pt 9, div 7B: Ins 2012 (668), Sch 1 [4]. Rep 2021 (689), Sch 3[3].
cl 186H: Ins 2012 (668), Sch 1 [4]. Am 2014 (45), cl 3 (1). Rep 2021 (689), Sch 3[3].
cl 186I: Ins 2012 (668), Sch 1 [4]. Rep 2021 (689), Sch 3[3].
cl 186J: Ins 2012 (668), Sch 1 [4]. Rep 2021 (689), Sch 3[3].
cl 186K: Ins 2012 (668), Sch 1 [4]. Rep 2021 (689), Sch 3[3].
cl 186L: Ins 2012 (668), Sch 1 [4]. Rep 2021 (689), Sch 3[3].
cl 186M: Ins 2012 (668), Sch 1 [4]. Rep 2021 (689), Sch 3[3].
cl 186N: Ins 2012 (668), Sch 1 [4]. Am 2019 (426), Sch 1[67]. Rep 2021 (689), Sch 3[3].
cl 186O: Ins 2012 (668), Sch 1 [4]. Am 2018 (66), Sch 2 [22]. Rep 2021 (689), Sch 3[3].
cl 186P: Ins 2012 (668), Sch 1 [4]. Rep 2021 (689), Sch 3[3].
cl 186Q: Ins 2012 (668), Sch 1 [4]. Am 2014 (45), cl 3 (2); 2015 No 15, Sch 3.26 [9]. Rep 2021 (689), Sch 3[3].
cl 186R: Ins 2012 (668), Sch 1 [4]. Rep 2021 (689), Sch 3[3].
pt 9, div 7C: Ins 2018 (499), Sch 1 [5]. Rep 2021 (689), Sch 3[3].
cl 186S: Ins 2018 (499), Sch 1 [5]. Rep 2021 (689), Sch 3[3].
cl 186T: Ins 2018 (499), Sch 1 [5]. Rep 2021 (689), Sch 3[3].
cl 186U: Ins 2018 (499), Sch 1 [5]. Rep 2021 (689), Sch 3[3].
pt 9, div 7D: Ins 2021 (171), Sch 1[2] (am 2021 (629), Sch 1). Rep 2021 (689), Sch 3[3].
cl 186V: Ins 2021 (171), Sch 1[2] (am 2021 (629), Sch 1). Am 2021 (692), Sch 1[12]. Rep 2021 (689), Sch 3[3].
cl 186W: Ins 2021 (171), Sch 1[2] (am 2021 (629), Sch 1). Rep 2021 (689), Sch 3[3].
cl 186X: Ins 2021 (171), Sch 1[2] (am 2021 (629), Sch 1). Rep 2021 (689), Sch 3[3].
cl 186Y: Ins 2021 (171), Sch 1[2] (am 2021 (629), Sch 1). Rep 2021 (689), Sch 3[3].
cl 186Z: Ins 2021 (171), Sch 1[2] (am 2021 (629), Sch 1). Rep 2021 (689), Sch 3[3].
pt 9, div 8: Rep 2021 (689), Sch 3[3].
cl 187: Am 2007 (496), Sch 1 [28]–[37]; 2009 (511), Sch 1 [25]–[32]. Rep 2021 (689), Sch 3[3].
cl 188: Am 2007 (496), Sch 1 [38]–[43]; 2009 (511), Sch 1 [33]–[35]. Rep 2021 (689), Sch 3[3].
cl 189: Am 2012 (668), Sch 1 [5]; 2015 (424), Sch 1 [6]; 2018 (66), Sch 2 [22]. Rep 2021 (689), Sch 3[3].
cl 190: Am 2017 No 17, Sch 4.28 [1] [2]. Rep 2021 (689), Sch 3[3].
cl 190A: Ins 2012 (668), Sch 1 [6]. Am 2014 (45), cl 3 (3); 2021 (692), Sch 1[13] [14]. Rep 2021 (689), Sch 3[3].
cl 190B: Ins 2017 (307), Sch 1 [25]. Rep 2021 (689), Sch 3[3].
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.
cl 191: 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 be—
(a)  in the form approved by the Planning Secretary and made available on the NSW planning portal, and
(b)  lodged on the NSW planning portal.
(2)  An application may, with the approval of the Planning Secretary, be amended or varied at any time before the application is determined.
(3)  An application to amend or vary an application for approval of the Minister to carry out State significant infrastructure must—
(a)  be in the form approved by the Planning Secretary and made available on the NSW planning portal, and
(b)  include particulars of the nature of the proposed amendments or variations to the application for approval, and
(c)  be prepared having regard to the State Significant Infrastructure Guidelines, and
(d)  be lodged on the NSW planning portal.
cl 192: Rep 2005 No 115, Sch 3.3 [9]. Ins 2011 (510), Sch 2 [41]. Am 2018 (66), Sch 2 [22]; 2021 (356), Sch 1.2[15]–[17].
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,
(d)  development for a purpose specified in State Environmental Planning Policy (State and Regional Development) 2011, Schedule 1, clause 5(1)–(4).
(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 publish notice of the application or request on the NSW planning portal and by—
(a)  written notice to the owner of the land before, or no later than 14 days after, the application or request is made, or
(b)  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.
cl 193: Rep 2005 No 115, Sch 3.3 [9]. Ins 2011 (510), Sch 2 [41]. Am 2018 (66), Sch 2 [22]; 2020 (167), Sch 1[31]; 2021 (614), Sch 1[3].
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].
193B   Environmental assessment requirements—further particulars and specified publications
In preparing the environmental assessment requirements for State significant infrastructure under the Act, section 5.16, the Planning Secretary may—
(a)  require the proponent of State significant infrastructure to provide further particulars, and
(b)  impose environmental assessment requirements by reference to specified publications.
cll 193B: Ins 2021 (356), Sch 1.2[18].
193C   Environmental assessment requirements—environmental impact statements
The environmental impact statement for State significant infrastructure must comply with the environmental assessment requirements that have been notified to the proponent by the Planning Secretary under the Act, section 5.16.
cll 193C: Ins 2021 (356), Sch 1.2[18].
194   Environmental assessment requirements—expiry
(1)  The environmental assessment requirements expire if an environmental impact statement is not submitted to the Planning Secretary within the period of 2 years after the Planning Secretary last gave notice under the Act, section 5.16(4).
(2)  If, before the expiry, the proponent makes a written request for an extension, the Planning Secretary may, on more than 1 occasion, extend the expiry day so long as the total period of extension does not exceed 2 years.
cl 194: Rep 2005 No 115, Sch 3.3 [9]. Ins 2011 (510), Sch 2 [41]. Rep 2018 (500), Sch 2 [43]. Ins 2021 (356), Sch 1.1[1].
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.
cl 195: 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 NSW planning portal.
(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.
cl 196: Rep 2005 No 115, Sch 3.3 [9]. Ins 2011 (510), Sch 2 [41]. Am 2018 (66), Sch 2 [22]; 2020 (167), Sch 1[32].
196A   Request for modification of approval for State significant infrastructure
A request to modify the Minister’s approval for State significant infrastructure under the Act, section 5.25(2) must—
(a)  be in the form approved by the Planning Secretary and made available on the NSW planning portal, and
(b)  include particulars of the nature of the proposed modification, and
(c)  be prepared having regard to the State Significant Infrastructure Guidelines, and
(d)  be lodged on the NSW planning portal.
cl 196A: Ins 2021 (356), Sch 1.2[19].
196B   Amendment of request for modification of Minister’s approval—the Act, s 5.29
(1)  A request to modify the Minister’s approval for State significant infrastructure under the Act, section 5.25(2) may be amended by the proponent, with the agreement of the Planning Secretary, at any time before the request is determined.
(2)  The amendment must include details of the nature of the change to the request to modify the Minister’s approval.
(3)  The amendment must be lodged on the NSW planning portal.
cl 196B: Ins 2021 (377), Sch 1[4]. Am 2021 (377), Sch 2.
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.
cl 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
224, 225  (Repealed)
pt 12: Subst 2006 (315), Sch 1. Rep 2021 (689), Sch 3[3].
cl 224: Subst 2006 (315), Sch 1. Am 2018 (66), Sch 2 [22]; 2018 (500), Sch 2 [44]–[46].Rep 2021 (689), Sch 3[3].
cl 225: Subst 2006 (315). Sch 1. Rep 2021 (689), Sch 3[3]. Rep 2021 (689), Sch 3[3].
Part 13 Development by the Crown
226   (Repealed)
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
227A  (Repealed)
pt 13A: Ins 2003 No 95, Sch 2.1 [44]. Rep 2021 (689), Sch 3[3].
cl 227A: Ins 2003 No 95, Sch 2.1 [44]. Am 27.2.2004; 2015 (424), Sch 1 [7]. Rep 2021 (689), Sch 3[3].
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   Publication of environmental impact statements
(1)  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)  the website on which the environmental impact statement will be publicly available,
(e)  a statement that any person may, before the specified closing date, make written representations to the determining authority about the proposed activity.
(2)  The notice is to be published on the NSW planning portal.
(3)  The period within which the notice may be inspected (as referred to in section 5.8(1) of the Act) begins on the date on which the notice is first published on the NSW planning portal.
(4)  An environmental impact statement is to be made publicly available on the website of the determining authority for the activity concerned and on the website of the council of each area affected by the activity.
cl 233: Am 2018 (66), Sch 2 [22]; 2020 (167), Sch 1[33]–[35].
234, 235   (Repealed)
cl 234: Am 2018 (66), Sch 2 [22]; 2019 (571), Sch 2[36]. Rep 2020 (167), Sch 1[36].
cl 235: Am 2006 (587), Sch 1 [4] [5]; 2018 (66), Sch 2 [22]. Rep 2020 (167), Sch 1[36].
Divisions 4, 5
236–242  (Repealed)
pt 14, div 4 (cll 236, 237): Rep 2011 (510), Sch 2 [17].
pt 14, div 5: Rep 2020 (167), Sch 1[37].
cl 237A: Ins 2005 (391), Sch 1 [4]. Rep 2020 (167), Sch 1[37].
cll 238–242: Rep 2020 (167), Sch 1[37].
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, and
(iii)  any public hearing by the Independent Planning Commission,
with respect to the proposed activity.
(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.
authorised network operator 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
Estimated cost
Maximum fee payable
Up to $5,000
$750
$5,001–$50,000
$750, plus an additional $23.33 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $5,000.
$50,001–$100,000
$1,800, plus an additional $70.00 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $50,000.
$100,001–$200,000
$5,300, plus an additional $4.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $100,000.
$200,001–$500,000
$5,750, plus an additional $5.83 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $200,000.
$500,001–$1,000,000
$7,500, plus an additional $5.00 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $500,000.
$1,000,001–$2,000,000
$10,000, plus an additional $1.00 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $1,000,000.
$2,000,001–$3,000,000
$11,000, plus an additional $0.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $2,000,000.
$3,000,001–$4,000,000
$11,500, plus an additional $0.70 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $3,000,000.
$4,000,001–$5,000,000
$12,200, plus an additional $0.80 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $4,000,000.
$5,000,001–$8,000,000
$13,000, plus an additional $1.00 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $5,000,000.
$8,000,001–$9,000,000
$16,000, plus an additional $1.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $8,000,000.
$9,000,001–$10,000,000
$17,500, plus an additional $2.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $9,000,000.
$10,000,001–$50,000,000
$20,000, plus an additional $1.00 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $10,000,000.
$50,000,001–$100,000,000
$60,000, plus an additional $0.60 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $50,000,000.
$100,000,001–$200,000,000
$90,000, plus an additional $0.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $100,000,000.
$200,000,001–$300,000,000
$140,000, plus an additional $0.35 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $200,000,000.
$300,000,001–$400,000,000
$175,000, plus an additional $0.81 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $300,000,000.
More than $400,000,000
$256,000, plus an additional $0.64 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $400,000,000.
cl 245D: Ins 2007 (6), Sch 1 [5].
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)—
 

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, or
(b)  $5,000,
whichever is the greater.
(4)  If there is public notice of a request for modification, an additional fee of $2,830 is payable.
(5)  The fee payable under this clause is payable by the person making the request and must be paid within 14 days after the Planning Secretary notifies that person of the amount of the fee.
(6)  The Minister may refuse to consider any such request if the fee remains unpaid.
cl 245K: Ins 2007 (6), Sch 1 [5]. Am 2010 (513), Sch 1 [5]; 2010 (759), Sch 1 [24]–[26].
245L   Fee for review by Independent Planning Commission
(1)  The fee payable to the Planning Secretary in respect of the review of any aspect of a project, or a concept plan for a project, by the Independent Planning Commission pursuant to section 23D(1)(b)(ii) of the Act is to be determined by the Planning Secretary in accordance with this clause. Any such review includes the giving of public notice in connection with a public hearing.
(2)  The fee is $56,600, plus an additional amount (being the estimated costs of the Commission undertaking the review) of not more than $56,600.
(3)  A fee is not payable under this clause if the Planning Secretary determines that a fee is not appropriate in the circumstances of the case.
(4)  The fee payable under this clause is payable by the relevant Part 3A proponent and must be paid within 14 days after the Planning Secretary notifies the proponent of the amount of the fee.
cl 245L: Ins 2007 (6), Sch 1 [5]. Am 2007 (342), Sch 1 [34]; 2008 (467), Sch 1 [28]–[30]; 2010 (759), Sch 1 [27]; 2018 (500), Sch 2 [17].
245M   Fee for investigation of potential State significant site
(1)  In this clause, State significant site investigation means an investigation initiated by the Minister under clause 8 of the State Environmental Planning Policy (Major Development) 2005 into a proposed State significant site.
(2)  The fee payable for a State significant site investigation requested by a person who has or proposes to acquire an interest in all or any part of the proposed site is $22,650 plus an additional fee of $1,130 for each hectare (or part of a hectare) of the area of the proposed site.
(3)  The additional fee is not payable if the investigation is carried out in conjunction with the assessment of an application for approval of a concept plan under Part 3A in relation to the site.
(4)  The fee is payable by the person requesting the investigation within 14 days after the Planning Secretary notifies the person of the fee payable.
cl 245M: Ins 2007 (6), Sch 1 [5]. Am 2009 No 106, Sch 2.13 [2]; 2010 (759), Sch 1 [28].
245N   Meaning of “estimated cost” for determining fee under this Division
(1)  In determining the fee in relation to a project involving the erection of a building, the Planning Secretary must make his or her determination by reference to a genuine estimate of the capital investment value of the project.
(2)  In determining the fee in relation to a project involving the carrying out of a work, the Planning Secretary must make his or her determination by reference to a genuine estimate of the construction costs of the work.
(3)  In determining the fee in relation to a project involving the demolition of a building or work, the Planning Secretary must make his or her determination by reference to a genuine estimate of the costs of demolition.
(4)  In determining the fee in relation to a concept plan for a project, the Planning Secretary may make any necessary assumptions about the detail of the future project that is the subject of the concept plan.
(5)    (Repealed)
cl 245N: Ins 2007 (6), Sch 1 [5]. Am 2010 (104), Sch 1 [15].
Division 1 Fees for development applications (other than for State significant development)
pt 15, div 1, hdg: Am 2011 (510), Sch 2 [47].
245   
(Renumbered as clause 245AA)
245AA   
(Renumbered as clause 246A)
246   Definition
In this Division—
development application does not include a development application for State significant development.
cl 246: Ins 2011 (510), Sch 2 [49].
246A   What is the maximum fee?
(cf clause 92 of EP&A Regulation 1994)
(1)  The fee for a development application must not exceed the maximum amount determined in accordance with this Division.
(2)  The services covered by the fee for a development application include the following—
(a)  the receipt of the application, and any internal referrals of the application,
(b)  consideration of the application for the purpose of determining whether any further information is required in relation to the proposed development,
(c)  inspection of the land to which the proposed development relates,
(d)  evaluation of the proposed development under section 4.15 of the Act, including discussion with interested parties,
(e)  preparation of internal reports on the application,
(f)  preparation and service of notices of the consent authority’s determination of the application,
(g)  the monitoring and reviewing by the Planning Secretary of the practices and procedures followed by consent authorities in dealing with development applications—
(i)  for the purpose of assessing the efficiency and effectiveness of those practices and procedures, and
(ii)  for the purpose of ensuring that those practices and procedures comply with the provisions of the Act and this Regulation,
(h)  the monitoring and reviewing by the Planning Secretary of the provisions of environmental planning instruments—
(i)  that control development, or
(ii)  that are required to be taken into consideration by consent authorities when dealing with development applications,
for the purposes of assessing the effectiveness of those provisions in achieving their intended effect and making recommendations for their improvement,
(i)    (Repealed)
(j)  the online delivery of planning services and information by the Planning Secretary, including—
(i)  the compilation and maintenance of the NSW planning database, and
(ii)  the operation of the NSW planning portal, and
(iii)  the enhancement of the NSW planning database and the NSW planning portal.
Note—
Clause 50(9) provides that a development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid.
cl 246A (previously cl 245AA; previously cl 245): Am 21.9.2001; 1.11.2002. Renumbered 2007 (6), Sch 1 [4]. Am 2005 No 115, Sch 3.3 [11]; 2007 (6), Sch 1 [4]. Renumbered 2011 (510), Sch 2 [48]. Am 2015 (314), Sch 1 [1]; 2018 (66), Sch 2 [22]; 2018 No 63, Sch 3.4[12]; 2020 (312), Sch 1[73].
246B   Fee for development application
(cf clause 93 of EP&A Regulation 1994)
(1)  The maximum fee for development involving the erection of a building, the carrying out of 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)  Despite subclause (1), the maximum fee payable for development for the purpose of one or more advertisements is—
(a)  $285, plus $93 for each advertisement in excess of one, or
(b)  the fee calculated in accordance with the Table,
whichever is the greater.
(3)  The fees determined under this clause do not apply to development for which a fee is payable under clause 247.
Table
Estimated cost
Maximum fee payable
Up to $5,000
$110
$5,001–$50,000
$170, plus an additional $3 for each $1,000 (or part of $1,000) of the estimated cost.
$50,001–$250,000
$352, plus an additional $3.64 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $50,000.
$250,001–$500,000
$1,160, plus an additional $2.34 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $250,000.
$500,001–$1,000,000
$1,745, plus an additional $1.64 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $500,000.
$1,000,001–$10,000,000
$2,615, plus an additional $1.44 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $1,000,000.
More than $10,000,000
$15,875, plus an additional $1.19 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $10,000,000.
cl 246B (previously cl 246): Am 21.9.2001; 1.11.2002; 2010 (759), Sch 1 [29]. Renumbered 2011 (510), Sch 2 [48].
247   Fee for dwelling-house—construction cost under $100,000
(cf clause 94 of EP&A Regulation 1994)
A maximum fee of $455 is payable for development involving the erection of a dwelling-house with an estimated cost of construction of $100,000 or less.
cl 247: Am 21.9.2001; 1.11.2002; 2010 (759), Sch 1 [30].
248   Additional fee—residential apartment development
An additional fee, not exceeding $3,000, is payable for development involving an application for development consent, or an application for the modification of the development consent, that is referred to a design review panel for advice.
cl 248: Rep 21.9.2001. Ins 26.7.2002. Am 2010 (759), Sch 1 [31]. Subst 2015 (315), Sch 1 [9].
249   Maximum fee—subdivision of land
(cf clause 96 of EP&A Regulation 1994)
The maximum fee payable for development involving the subdivision of land is calculated as follows—
(a)  subdivision (other than strata subdivision)—
(i)  involving the opening of a public road, $665, plus $65 for each additional lot created by the subdivision, or
(ii)  not involving the opening of a public road, $330, plus $53 for each additional lot created by the subdivision,
(b)  strata subdivision, $330, plus $65 for each additional lot created by the subdivision.
Note—
For example, a plan of subdivision that provides for 5 lots over land that has previously comprised 2 lots will result in the creation of 3 additional lots, and so attract a fee that includes a base amount of $665 or $330, as the case requires, together with a further amount of $65 or $53, as the case requires, for each of the 3 additional lots.
cl 249: Am 21.9.2001; 2010 (759), Sch 1 [32]–[34] (note revised consequentially by Parliamentary Counsel).
250   Development not involving the erection of a building, the carrying out of a work, the subdivision of land or the demolition of a building or work
(cf clause 97 of EP&A Regulation 1994)
A maximum fee of $285 is payable for development that does not involve the erection of a building, the carrying out of a work, the subdivision of land or the demolition of a building or work.
cl 250: Am 21.9.2001; 2010 (759), Sch 1 [35].
251   Additional fee—designated development
In addition to any other fees payable under this Division, a maximum fee of $920 is payable for designated development.
cl 251: Subst 21.9.2001. Am 2010 (759), Sch 1 [36].
252   Additional fees—development requiring advertising
(cf clause 99 of EP&A Regulation 1994)
(1)  In addition to any other fees payable under this Division, a consent authority may charge up to the following maximum fees for the giving of the notice required for the development—
(a)  $2,220, in the case of designated development,
(b)  $1,105, in the case of nominated integrated development, threatened species development or Class 1 aquaculture development,
(c)  $1,105, in the case of prohibited development,
(d)  $1,105, in the case of development for which a community participation plan requires notice to be given otherwise than as referred to in paragraph (a), (b) or (c).
(2)  The consent authority must refund so much of the fee paid under this clause as is not spent in giving the notice.
cl 252: Am 2010 (759), Sch 1 [37] [38]; 2019 (571), Sch 2[37] [38].
252A   Additional fees—development requiring concurrence
(1)  An additional processing fee of $140, plus a concurrence fee for payment to each concurrence authority, are payable in respect of an application for development that requires concurrence under the Act or an environmental planning instrument.
(2)  The concurrence fee is to be paid to the concurrence authority.
(3)  The concurrence fee for a development application is not payable—
(a)  to any concurrence authority whose concurrence may be assumed in accordance with clause 64, or
(b)  to any concurrence authority that has waived the payment of the fee.
(3A)  A concurrence authority may determine to repay the whole or any part of a concurrence fee paid to it under this clause, in which case the whole or part of the concurrence fee must be repaid to the applicant.
(4)  The additional processing fee is not payable—
(a)  for any application in respect of which concurrence may be assumed in accordance with clause 64 for all of the concurrence authorities concerned, or
(b)  for any application made before 1 July 2002.
(5)  For the purposes of this clause, the concurrence fee payable to a concurrence authority for a development application is $320.
(6)  A concurrence authority may waive or reduce the concurrence fee payable to it generally, in relation to a particular application or in relation to a class of applications by giving written notice to—
(a)  a consent authority for concurrence fees collected by the consent authority, or
(b)  the Planning Secretary for concurrence fees collected by means of the NSW planning portal.
cl 252A: Ins 21.9.2001. Am 2.8.2002; 2010 (759), Sch 1 [39] [40]; 2018 (756), Sch 1 [13]–[17].
253   Additional fees—integrated development
(cf clause 100 of EP&A Regulation 1994)
(1)  An additional processing fee of $140, plus an approval fee for payment to each approval body, are payable in respect of an application for integrated development.
(2)  The approval fee is to be paid to the approval body.
(2A)  The approval fee for a development application is not payable to any approval body that has waived the payment of the fee.
(2B)  An approval body may determine to repay the whole or any part of an approval fee paid to it under this clause, in which case the whole or part of the approval fee must be repaid to the applicant.
(3)  The additional processing fee is payable in respect only of applications made on or after 1 July 2002.
(4)    (Repealed)
(5)  For the purposes of this clause, the approval fee payable to an approval body for a development application is $320.
(6)  An approval body may waive or reduce the approval fee payable to it generally, in relation to a particular application or in relation to a class of applications by giving written notice to—
(a)  a consent authority for approval fees collected by the consent authority, or
(b)  the Planning Secretary for approval fees collected by means of the NSW planning portal.
cl 253: Am 21.9.2001; 2.8.2002; 2010 (759), Sch 1 [41] [42]; 2018 (756), Sch 1 [13] [18]–[21].
254   What if two or more fees are applicable to a single development application?
(cf clause 101 of EP&A Regulation 1994)
If two or more fees are applicable to a single development application (such as an application to subdivide land and erect a building on one or more lots created by the subdivision), the maximum fee payable for the development is the sum of those fees.
255   How is a fee based on estimated cost determined?
(cf clause 102 of EP&A Regulation 1994)
(1)  In determining the fee for development involving the erection of a building, the consent authority must make its determination by reference to a genuine estimate of—
(a)  the costs associated with the construction of the building, and
(b)  the costs associated with the preparation of the building for the purpose for which it is to be used (such as the costs of installing plant, fittings, fixtures and equipment).
(1A)  In determining the fee for development involving the carrying out of a work, the consent authority must make its determination by reference to a genuine estimate of the construction costs of the work.
(1B)  In determining the fee for development involving the demolition of a building or work, the consent authority must make its determination by reference to a genuine estimate of the costs of demolition.
(2)  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 255: Am 21.9.2001.
256   Determination of fees for development applications
(cf clause 103 of EP&A Regulation 1994)
(1)  The determination of a fee to accompany a development application must be made before, or within 14 days after, the consent authority receives the application.
(2)  A determination has no effect until notice of the determination is given to the applicant by means of the NSW planning portal.
(3)  A consent authority may refuse to consider a development application for which a fee has been duly determined and notified to the applicant but remains unpaid.
cl 256: Am 2020 (312), Sch 1[74]–[76]; 2021 (180), Sch 1[10].
256A   Proportion of development application fees to be remitted to Planning Secretary and Registration Secretary
(1)  For each development application lodged with a consent authority for development referred to in clause 246B(1) having an estimated cost exceeding $50,000, an amount calculated as follows is to be set aside for payment to the Planning Secretary for the services referred to in clause 246A(2)(g), (h) and (j)—
 
where—
P represents the amount to be set aside, expressed in dollars rounded down to the nearest dollar, and
E represents the estimated cost of the development, expressed in dollars rounded up to the nearest thousand dollars.
(1A)  The amount referred to in subclause (1) is to be applied by the Secretary to the services referred to in clause 246A(2)(g), (h) and (j).
(2)  The consent authority must forward to the Planning Secretary—
(a)  on or before the 14th day of each month, a report in relation to development applications lodged with it during the previous month containing such information, and being prepared in such form, as the Planning Secretary may determine, and
(b)  on or before the 28th day of each month, the total amount set aside under subclause (1) in relation to those development applications.
(3)  The Planning Secretary may at any time reduce or waive (unconditionally or subject to conditions) the amount to be paid under this clause.
cl 256A: Ins 1.11.2002. Am 2005 No 115, Sch 3.3 [12] [13]; 2007 No 27, Sch 2.18; 2010 (513), Sch 1 [6]; 2011 (510), Sch 2 [50] [51]; 2015 (314), Sch 1 [2] [3]; 2018 (66), Sch 2 [22]; 2018 (500), Sch 2 [48]; 2018 No 63, Sch 3.4[13] [14].
256B   Concept development applications
The maximum fee payable for a concept development application in relation to a site, and for any subsequent development application for any part of the site, is the maximum fee that would be payable as if a single development application only was required for all the development on the site.
cl 256B: Ins 2005 (600), Sch 1 [10]. Am 2017 No 38, Sch 2.2 [2].
256BA   Fees not to be charged for council compliance and enforcement functions—the Act, s 4.64(1)(f)
(1)  The charging of a fee by a council in relation to a development application for the exercise of the council’s compliance or enforcement functions under the Act in relation to development carried out in the council’s area is prohibited.
Note—
The Local Government Act 1993, section 610(2) provides that a council must not charge a fee for a service if another Act prohibits the charging of the fee.
(2)  This clause does not prohibit the charging of a fee that is specifically prescribed by this Regulation.
cl 256BA: Ins 2021 (383), Sch 1[1].
Division 1AA Fees for State significant development and State significant infrastructure—the Act, ss 4.64 and 5.29
pt 15, div 1AA, hdg: Am 2021 (356), Sch 1.4[1].
pt 15, div 1AA: Ins 2011 (510), Sch 2 [52].
256C   Definitions
In this Division—
application means a development application for State significant development or an application for approval of State significant infrastructure.
concept component of a staged application means that part of a staged application that sets out concept proposals for the development of a site or for proposed infrastructure.
staged application means an application that is a concept development application or a staged infrastructure application.
Note—
Section 4.22 of the Act sets out the meaning of concept development application.
staged infrastructure application has the same meaning as it has in section 5.20 of the Act.
cl 256C: Ins 2011 (510), Sch 2 [52]. Am 2015 (289), Sch 1 [2]; 2017 No 38, Sch 2.2 [2]; 2018 (66), Sch 2 [22].
256D   Determination of fees payable for application
(1)  The fee for an 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)  If two or more fees are applicable to a single 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.
(3)    (Repealed)
cl 256D: Ins 2011 (510), Sch 2 [52]. Am 2015 (289), Sch 1 [3].
256E   Determination of fees
(1)  The determination of a fee to accompany an application for State significant development must be made before, or within 14 days after, the consent authority receives the application.
(1A)  The determination of a fee to accompany an application for State significant infrastructure must be made before, or within 14 days after, the proponent submits an environmental impact statement to the Planning Secretary under the Act, section 5.17(1).
(2)  A determination has no effect until notice of the determination is given to the applicant by means of the NSW planning portal.
(3)  The Minister may refuse to consider an application for which a fee has been duly determined and notified to the applicant but remains unpaid.
cl 256E: Ins 2011 (510), Sch 2 [52]. Am 2020 (312), Sch 1[77]–[79]; 2021 (180), Sch 1[11]; 2021 (356), Sch 1.4[2] [3].
256F   Maximum fee—buildings, works or demolition (other than marinas or extractive industries)
(1)  The maximum fee for an application 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 or infrastructure for which a fee is payable under clause 256G or 256H.
Table
Estimated cost
Maximum fee payable
Up to $5,000
$750.
$5,001–$50,000
$750, plus an additional $23.33 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $5,000.
$50,001–$100,000
$1,800, plus an additional $70.00 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $50,000.
$100,001–$200,000
$5,300, plus an additional $4.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $100,000.
$200,001–$500,000
$5,750, plus an additional $5.83 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $200,000.
$500,001–$1,000,000
$7,500, plus an additional $5.00 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $500,000.
$1,000,001–$2,000,000
$10,000, plus an additional $1.00 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $1,000,000.
$2,000,001–$3,000,000
$11,000, plus an additional $0.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $2,000,000.
$3,000,001–$4,000,000
$11,500, plus an additional $0.70 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $3,000,000.
$4,000,001–$5,000,000
$12,200, plus an additional $0.80 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $4,000,000.
$5,000,001–$8,000,000
$13,000, plus an additional $1.00 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $5,000,000.
$8,000,001–$9,000,000
$16,000, plus an additional $1.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $8,000,000.
$9,000,001–$10,000,000
$17,500, plus an additional $2.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $9,000,000.
$10,000,001–$50,000,000
$20,000, plus an additional $1.00 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $10,000,000.
$50,000,001–$100,000,000
$60,000, plus an additional $0.60 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $50,000,000.
$100,000,001–$200,000,000
$90,000, plus an additional $0.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $100,000,000.
$200,000,001–$300,000,000
$140,000, plus an additional $0.35 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $200,000,000.
$300,000,001–$400,000,000
$175,000, plus an additional $0.81 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $300,000,000.
More than $400,000,000
$256,000, plus an additional $0.64 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $400,000,000.
cll 256F–256J: Ins 2011 (510), Sch 2 [52].
256G   Maximum fee—marinas
(1)  The maximum fee payable for an application 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 an application 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.
cll 256F–256J: Ins 2011 (510), Sch 2 [52].
256H   Maximum fee—extractive industries
(1)  The maximum fee payable for an application 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 application involves the erection of a building—the maximum fee calculated in accordance with clause 256F 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.
cll 256F–256J: Ins 2011 (510), Sch 2 [52].
256I   Maximum fee—subdivision of land
(1)  The maximum fee payable for an application 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.
cll 256F–256J: Ins 2011 (510), Sch 2 [52].
256J   Additional fee for critical State significant infrastructure
(1)  The maximum additional fee payable for an application in respect of critical State significant infrastructure is $50,000.
(2)  If State significant infrastructure is declared to be critical State significant infrastructure after the fee for the State significant infrastructure application is paid or due for payment, the additional fee under this clause is payable within 14 days after the Planning Secretary notifies the proponent that the additional fee is payable.
cll 256F–256J: Ins 2011 (510), Sch 2 [52].
256K   Additional fee for making environmental impact statement publicly available
In addition to any other fees payable under this Division, the maximum fee payable for an application includes a maximum fee of $2,830 for making an environmental impact statement in relation to the application publicly available under the Act.
cl 256K: Ins 2011 (510), Sch 2 [52]. Am 2018 (66), Sch 2 [22].
256KA   Additional fee for assessing concept component of staged application
(1)  In addition to any other fees payable under this Division, a fee is payable for assessing the concept component of a staged application.
(2)  The maximum fee payable under this clause is the maximum fee that would be payable in respect of all the proposed development, or all the proposed State significant infrastructure, to which the concept component of the staged application relates.
(3)  For the avoidance of doubt, the payment of a fee under this clause does not remove the need to pay any fee under this Division (or reduce any such fee) in relation to—
(a)  in the case of a concept development application—the concept development application insofar as it sets out detailed proposals for the first stage of development, or
(b)  in the case of a staged infrastructure application—the staged infrastructure application insofar as it sets out detailed proposals for the first stage, or
(c)  any other application, including a subsequent application that relates to the staged application.
cl 256KA: Ins 2015 (289), Sch 1 [4]. Am 2017 No 38, Sch 2.2 [2].
256L   Additional fee for planning reform
(1)  In addition to any other fees payable under this Division, the maximum fee payable for an application includes (if the estimated cost of the development or infrastructure exceeds $50,000) a maximum fee for the services to which this clause applies, calculated as follows—
 
where—
P represents the amount payable, expressed in dollars rounded down to the nearest dollar.
E represents the estimated cost of the development or infrastructure, expressed in dollars rounded up to the nearest thousand dollars.
(2)  This clause applies to the following services—
(a)  the monitoring and reviewing by the Planning Secretary of the practices and procedures followed by consent authorities in dealing with applications—
(i)  for the purpose of assessing the efficiency and effectiveness of those practices and procedures, and
(ii)  for the purpose of ensuring that those practices and procedures comply with the provisions of the Act and this Regulation,
(b)  the monitoring and reviewing by the Planning Secretary of the provisions of environmental planning instruments—
(i)  that control development or infrastructure, or
(ii)  that are required to be taken into consideration by consent authorities when dealing with applications,
for the purposes of assessing the effectiveness of those provisions in achieving their intended effect and making recommendations for their improvement,
(c)    (Repealed)
(d)  the online delivery of planning services and information by the Planning Secretary, including—
(i)  the compilation and maintenance of the NSW planning database, and
(ii)  the operation of the NSW planning portal, and
(iii)  the enhancement of the NSW planning database and the NSW planning portal.
(3)  This clause does not apply to the concept component of a staged application.
cl 256L: Ins 2011 (510), Sch 2 [52]. Am 2015 (289), Sch 1 [5]; 2015 (314), Sch 1 [4]; 2018 No 63, Sch 3.4[15].
256M   Fees for modifications
(1)  The fee payable for consideration of an application or request for modification of any of the following is to be determined by the Planning Secretary in accordance with this clause—
(a)  a consent granted by the Minister for State significant development, or
(b)  an approval of the Minister for State significant infrastructure.
(2)  The maximum fee is $850 for—
(a)  an application under section 4.55(1) of the Act, or
(b)  a request under section 5.25 of the Act, if the Planning Secretary considers that the modification will relate only to a minor matter such as a minor error, a misdescription or a miscalculation (but not a modification referred to in subclause (3)(b)).
(3)  The maximum fee is $5,000 for—
(a)  an application under section 4.55(1A) of the Act, or
(b)  a request under section 5.25 of the Act, if the Planning Secretary considers that the modification will involve minor environmental assessment.
(4)  The maximum fee in any other case is whichever is the greater of—
(a)  50% of the fee paid for the application or request in respect of the development or infrastructure that is proposed to be modified, or
(b)  $5,000.
(5)  If there is public notice of an application or request for modification (other than public notice on the website of the Department), an additional fee of $2,830 is payable.
(6)  The fee payable under this clause is payable by the person making the application or request and must be paid within 14 days after the Planning Secretary notifies that person of the amount of the fee.
(7)  The Minister may refuse to consider any such application or request if the fee remains unpaid.
cl 256M: Ins 2011 (510), Sch 2 [52]. Am 2018 (66), Sch 2 [22].
256N   Fee for public hearing by Independent Planning Commission
(1)  The fee payable to the Planning Secretary in respect of a public hearing by the Independent Planning Commission pursuant to section 2.9(1)(d) of the Act in respect of an application is to be determined by the Planning Secretary in accordance with this clause.
(2)  The fee is $56,600, plus an additional amount (being the estimated costs of the Commission undertaking the public hearing) of not more than $56,600.
(3)  A fee is not payable under this clause if the Planning Secretary determines that a fee is not appropriate in the circumstances of the case.
(4)  The fee payable under this clause is payable by the person making the application to which the hearing relates and must be paid within 14 days after the Planning Secretary notifies the person of the amount of the fee.
cl 256N: Ins 2011 (510), Sch 2 [52]. Am 2018 (66), Sch 2 [22]; 2018 (500), Sch 2 [17].
256O   Fee for planning proposal with application
(1)  The fee payable for considering a proposed environmental planning instrument in conjunction with an application under section 4.38(5) of the Act is $22,650 plus an additional fee of $1,130 for each hectare (or part of a hectare) of the area of the proposed development site.
(2)  The fee is payable by the person making the application within 14 days after the Planning Secretary notifies the person of the fee payable.
cl 256O: Ins 2011 (510), Sch 2 [52]. Am 2018 (66), Sch 2 [22].
256P   Meaning of “estimated cost” for determining fee under this Division
(1)  In determining the fee in relation to an application involving the erection of a building, the Planning Secretary must make his or her determination by reference to a genuine estimate of the capital investment value of the application.
(2)  In determining the fee in relation to an application involving the carrying out of a work, the Planning Secretary must make his or her determination by reference to a genuine estimate of the construction costs of the work.
(3)  In determining the fee in relation to an application involving the demolition of a building or work, the Planning Secretary must make his or her determination by reference to a genuine estimate of the costs of demolition.
(4)  In determining the fee in relation to the concept component of a staged application, the Planning Secretary may make any necessary assumptions about the detail of the future stages of the development or infrastructure.
cl 256P: Ins 2011 (510), Sch 2 [52]. Am 2015 (289), Sch 1 [6].
Division 2 Other fees and charges
257   Fee for request for review of determination
The maximum fee for a request for a review of a determination under section 82A of the Act is—
(a)  in the case of a request with respect to a development application that does not involve the erection of a building, the carrying out of a work or the demolition of a work or building, 50 per cent of the fee for the original development application, and
(b)  in the case of a request with respect to a development application that involves the erection of a dwelling-house with an estimated cost of construction of $100,000 or less, $190, and
(c)  in the case of a request with respect to any other development application, as set out in the Table to this clause,
plus an additional amount of not more than $620 if notice of the application is required to be given under section 82A of the Act.
Table
Estimated cost
Maximum fee payable
Up to $5,000
$55
$5,001–$250,000
$85, plus an additional $1.50 for each $1,000 (or part of $1,000) of the estimated cost.
$250,001–$500,000
$500, plus an additional $0.85 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $250,000.
$500,001–$1,000,000
$712, plus an additional $0.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $500,000.
$1,000,001–$10,000,000
$987, plus an additional $0.40 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $1,000,000.
More than $10,000,000
$4,737, plus an additional $0.27 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $10,000,000.
cl 257: Subst 21.9.2001; 1.11.2002. Am 7.2.2003; 2010 (759), Sch 1 [43] [44]; 2011 (70), Sch 1 [11]; 2011 No 27, Sch 2.15 [2].
257A   Fee for review of decision to reject a development application
The fee for an application under section 8.2(1)(c) for a review of a decision is as follows—
(a)  $55—if the estimated cost of the development is less than $100,000,
(b)  $150—if the estimated cost of the development is $100,000 or more and less than or equal to $1,000,000,
(c)  $250—if the estimated cost of the development is more than $1,000,000.
cl 257A: Ins 2011 (70), Sch 1 [12]. Am 2018 (66), Sch 2 [22].
258   Fee for application for modification of consent for local development
(cf clause 105 of EP&A Regulation 1994)
(1)  The maximum fee for an application under section 4.55(1) of the Act is $71.
(1A)  The maximum fee for an application under section 4.55(1A) of the Act, or under section 4.56(1) of the Act in respect of a modification which, in the opinion of the consent authority, is of minimal environmental impact, is $645 or 50 per cent of the fee for the original development application, whichever is the lesser.
(2)  The maximum fee for an application under section 4.55(2) of the Act, or under section 4.56(1) of the Act in respect of a modification which, in the opinion of the consent authority, is not of minimal environmental impact, is—
(a)  if the fee for the original application was less than $100, 50 per cent of that fee, or
(b)  if the fee for the original application was $100 or more—
(i)  in the case of an application with respect to a development application that does not involve the erection of a building, the carrying out of a work or the demolition of a work or building, 50 per cent of the fee for the original development application, and
(ii)  in the case of an application with respect to a development application that involves the erection of a dwelling-house with an estimated cost of construction of $100,000 or less, $190, and
(iii)  in the case of an application with respect to any other development application, as set out in the Table to this clause,
plus an additional amount of not more than $665 if notice of the application is required to be given under section 4.55(2) or 4.56(1) of the Act.
(2A)  An additional fee, not exceeding $760, is payable for development to which clause 115(3) applies.
(3)  The consent authority must refund so much of the additional amount as is not spent in giving the notice under section 4.55(2) or 4.56(1) of the Act.
(3A)  The consent authority must refund the additional fee paid under subclause (2A) if the development is not referred to a design review panel.
(4)  In this clause—
(a)  a reference to an original development application is a reference to the development application that resulted in the granting of the consent to be modified, and
(b)  a reference to the fee for the original development application does not include a reference to any fee under clause 252 that was payable for the giving of notice.
(4A)  A reference in the Table to this clause to an estimated cost is a reference to the estimated cost of the development for which development consent was granted.
(5)  This clause does not apply to an application for the modification of a development consent granted by the Land and Environment Court on appeal from some other consent authority.
Table
Estimated cost
Maximum fee payable
Up to $5,000
$55
$5,001–$250,000
$85, plus an additional $1.50 for each $1,000 (or part of $1,000) of the estimated cost.
$250,001–$500,000
$500, plus an additional $0.85 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $250,000.
$500,001–$1,000,000
$712, plus an additional $0.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $500,000.
$1,000,001–$10,000,000
$987, plus an additional $0.40 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $1,000,000.
More than $10,000,000
$4,737, plus an additional $0.27 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $10,000,000.
cl 258: Am 21.9.2001; 26.7.2002; 1.11.2002; 7.2.2003; 2010 (759), Sch 1 [45]–[49]; 2011 (70), Sch 1 [13]; 2011 (510), Sch 2 [53]; 2018 (66), Sch 2 [22].
258A   Fee for review of modification application
The fee for an application under section 8.9 for a review of a decision is 50 per cent of the fee that was payable in respect of the application that is the subject of the review.
cl 258A: Ins 2011 (70), Sch 1 [14]. Am 2018 (66), Sch 2 [22].
259   Fee for planning certificate
(cf clause 106 of EP&A Regulation 1994)
(1)  The prescribed fee for the issue of a certificate under section 10.7(2) of the Act is $53.
(2)  A council may charge one additional fee of not more than $80 for any advice given under section 10.7(5) of the Act.
cl 259: Am 2010 (759), Sch 1 [50] [51]; 2018 (66), Sch 2 [22].
260   Fee for building information certificate
(cf clause 107 of EP&A Regulation 1994)
(1)  For the purposes of section 6.23(2) of the Act, the fee for an application for a building information certificate in relation to a building is—
(a)  in the case of a class 1 building (together with any class 10 buildings on the site) or a class 10 building, $250 for each dwelling contained in the building or in any other building on the allotment, or
(b)  in the case of any other class of building, as set out in the Table to this clause, or
(c)  in any case where the application relates to a part of a building and that part consists of an external wall only or does not otherwise have a floor area, $250.
(2)  If it is reasonably necessary to carry out more than one inspection of the building before issuing a building information certificate, the council may require the payment of an additional fee (not exceeding $90) for the issue of the certificate.
(3)  However, the council may not charge an additional fee for any initial inspection.
(3A)  An additional fee determined in accordance with subclause (3B) may be charged for an application for a building information certificate in relation to a building where the applicant for the certificate, or the person on whose behalf the application is made, is the person who erected the building or on whose behalf the building was erected and any of the following circumstances apply—
(a)  where a development consent, complying development certificate or construction certificate was required for the erection of the building and no such consent or certificate was obtained,
(b)  where a penalty notice has been issued for an offence under section 4.2(1) of the Act in relation to the erection of the building and the person to whom it was issued has paid the penalty required by the penalty notice in respect of the alleged offence (or if the person has not paid the penalty and has not elected to have the matter dealt with by a court, enforcement action has been taken against the person under Division 4 of Part 4 of the Fines Act 1996),
(c)  where order No 2, 3, 10, 11 or 14 in Part 1 of Schedule 5 to the Act has been given in relation to the building unless the order has been revoked on appeal,
(d)  where a person has been found guilty of an offence under the Act in relation to the erection of the building,
(e)  where the court has made a finding that the building was erected in contravention of a provision of the Act.
(3B)  The additional fee payable under subclause (3A) is the total of the following amounts—
(a)  the amount of the maximum fee that would be payable if the application were an application for development consent, or a complying development certificate (if appropriate), authorising the erection or alteration of any part of the building to which the application relates that has been erected or altered in contravention of the Act in the period of 24 months immediately preceding the date of the application,
(b)  the amount of the maximum fee that would be payable if the application were an application to the council for a construction certificate relating to the erection or alteration of any part of the building to which the application relates that has been erected or altered in contravention of the Act in the period of 24 months immediately preceding the date of the application.
(3C)  If an application for a building information certificate is made in relation to part only of a building, a reference in subclause (3A) to a building is taken to be a reference to the part of a building that is the subject of the application.
(4)  In this clause, a reference to a class 1 building includes a reference to a class 2 building that comprises 2 dwellings only.
Table
Floor area of building or part
Fee
Not exceeding 200 square metres
$250
Exceeding 200 square metres but not exceeding 2,000 square metres
$250, plus an additional $0.50 per square metre over 200
Exceeding 2,000 square metres
$1,165, plus an additional $0.075 per square metre over 2,000
cl 260: Am 21.9.2001; 9.7.2004; 2008 No 36, Sch 4.2 [12]; 2008 (467), Sch 1 [31]; 2010 (759), Sch 1 [52]–[55]; 2018 (66), Sch 2 [22].
261   Fee for copy of building information certificate
For the purposes of section 6.26(10) of the Act, the prescribed fee for a copy of a building information certificate is $13.
cl 261: Am 2010 (759), Sch 1 [56]; 2018 (66), Sch 2 [22].
262   Fee for certified copy of document, map or plan held by Department or council
(cf clause 108 of EP&A Regulation 1994)
The prescribed fee for a certified copy of a document, map or plan referred to in section 10.8(2) of the Act is $53.
cl 262: Am 2010 (759), Sch 1 [57]; 2018 (66), Sch 2 [22].
262A   Fee for site compatibility certificate
(1)  The maximum fee for an application to the Planning Secretary for a site compatibility certificate (affordable rental housing) is $265, plus $42 for each dwelling in the development in respect of which the certificate was issued.
(2)  The maximum fee for an application to the Planning Secretary for a site compatibility certificate (infrastructure) or a site compatibility certificate (schools or TAFE establishments) is $265, plus $265 for each hectare (or part of a hectare) of the area of the land in respect of which the certificate was issued.
(3)    (Repealed)
(4)  Despite any other provision of this clause, the fee for an application to the Planning Secretary for a site compatibility certificate must not exceed $5,580.
cl 262A: Ins 2007 (495), Sch 1 [3]. Am 2007 (623), Sch 1 [4]. Subst 2009 (355), Sch 1 [3]. Am 2010 (759), Sch 1 [58]–[62]; 2017 (491), Sch 1 [6]; 2021 (692), Sch 1[15].
262B   
cl 262B: Ins 2007 (623), Sch 1 [5]. Rep 2009 (355), Sch 1 [3]. Ins 2010 (759), Sch 1 [63]. Rep 2021 (689), Sch 3[3].
262C   Fee for strategic agricultural land site verification certificate
The fee for the issue of a site verification certificate is $3,900.
cl 262C: Ins 2013 (578), Sch 2 [4].
263   Other fees
(cf clause 109 of EP&A Regulation 1994)
(1)  The maximum charge or fee that may be imposed under section 7.44(1) of the Act is—
(a)  the amount determined by the Planning Secretary (either generally or in any particular case or class of cases), having regard to the cost to the Minister, corporation, Department or Planning Secretary of doing anything referred to in that subsection, or
(b)  if there is not a relevant determination in force, 120 per cent of the cost to the Minister, corporation, Department or Planning Secretary of doing anything referred to in that subsection.
(2)  A consent authority or council may impose a fee of not more than $36 for the lodging of any of the following certificates on the NSW planning portal—
(a)  a complying development certificate,
(b)  a Part 6 certificate, if it is—
(i)  a construction certificate, or
(ia)  a subdivision works certificate, or
(ii)  an occupation certificate, or
(iii)  a subdivision certificate.
(3)  The Planning Secretary may, under section 7.44(1A) of the Act, require a proponent who has made a request referred to in clause 124G for an order that specified development be declared State significant development under section 4.36(3) of the Act to pay a fee of an amount determined by the Planning Secretary that does not exceed the reasonable costs incurred by the Department in exercising the functions under clause 124G in respect of that request.
(4)  The Planning Secretary may, under section 7.44(1A) of the Act, require the payment of an initial fee of not more than $5,000 for consideration of a request that the Minister or the Planning Secretary refer a matter to the Commission or to a regional panel.
Note—
The Commission and a regional panel may advise the Minister or Planning Secretary as to planning matters under sections 2.9(1)(c) and 2.15(c) of the Act, respectively.
(5)  If the Minister or the Planning Secretary determines to refer any such matter to the Commission or a regional panel, the Planning Secretary may, under section 7.44(1A) of the Act, require the payment by the person who requested the referral of a fee of not more than $15,000 for the costs and expenses incurred by the Minister or Planning Secretary in preparing a report about the matter (including any necessary consultation with councils and other relevant agencies) or incurred by the Commission or the regional panel in providing advice to the Minister or the Planning Secretary.
(6)  A fee is not payable under subclause (4) or (5) in respect of a request referred to in subclause (3).
cl 263: Am 9.7.2004; 2010 (759), Sch 1 [64]; 2012 (346), Sch 2 [6]; 2012 (542), Sch 1 [3]; 2018 (66), Sch 2 [22]; 2019 (426), Sch 1[68]; 2020 (312), Sch 1[80].
263A   Charge by way of re-imbursement for certain local planning panel costs paid by Department
(1)  This clause applies where the Minister, under section 2.17(5) of the Act, constitutes a local planning panel because the council has failed to do so and the costs of the panel are paid from the funds of the Department.
(2)  The Planning Secretary may, from time to time, impose a charge under section 7.44 of the Act on the council in connection with the constitution and operation of the panel not exceeding the amount of the costs of the panel that have been paid from the funds of the Department.
(3)  For the purposes of this clause, the costs of a local planning panel are the amounts paid in connection with the appointment and remuneration of members of the panel and for other expenses reasonable incurred by the panel in connection with its operation.
cl 263A: Ins 2018 (66), Sch 2 [14]. Am 2018 No 68, Sch 2.12 [4].
263B   Additional fees for use of NSW planning portal
(1)  A fee of $40 is payable for the use of the NSW planning portal to lodge an application for the following—
(a)  modification of a development consent under section 4.55(1A) or (2) or 4.56 of the Act,
(b)  a site compatibility certificate,
(c)  a construction certificate,
(d)  a subdivision works certificate,
(e)  an occupation certificate,
(f)  a subdivision certificate,
(g)  a building information certificate.
(2)  A fee of $5 is payable for the use of the NSW planning portal to lodge the following—
(a)  a review of a determination under section 8.3 of the Act,
(b)  the lodgement of a planning agreement under clause 25B(1),
(c)  an application for a BASIX certificate under clause 164A,
(d)  the lodgement of a certificate referred to in clause 263(2).
(3)  A fee of $5 is payable for the use of the NSW planning portal to pay a monetary contribution or levy under Division 7.1 of the Act.
cl 263B: Ins 2021 (180), Sch 1[12]. Am 2021 (689), Sch 3[7].
Part 16 Registers and other records
264   Council to maintain a register of development applications and consents
(cf clause 109A of EP&A Regulation 1994)
(1)  A council must maintain a register containing details of the following matters for each development application that is either made to it as the consent authority or furnished to it in cases where it is not the consent authority—
(a)  the registered number of the application,
(b)  the date when the application was made,
(c)  the amount of any fee payable in connection with the application,
(d)  the date or dates when any such fee, or any part of such fee, was paid,
(e)  the date when the application was determined.
(2)  The register must also contain details of the following matters for each development consent—
(a)  the name and address of the person to whom the consent was granted,
(b)  the address, and formal particulars of title, of the land to which the consent relates,
(c)  the date when the consent was granted,
(d)  a brief description of the subject-matter of the consent, including a statement as to the nature of the development (residential, commercial, industrial or other),
(e)  any conditions to which the consent is subject,
(f)  the duration of the consent,
(g)  the date when the consent became effective,
(h)  whether the consent has been revoked, modified or surrendered,
(i)  the date when any notice was published in respect of the consent as referred to in section 4.59 of the Act,
(j)  the date of issue of any related construction certificates,
(k)  the date of commencement of building or subdivision work the subject of the consent,
(l)  the name and registration number of the principal certifier appointed in relation to a consent involving building or subdivision work,
(m)  in the case of a consent concerning residential building work (within the meaning of the Home Building Act 1989)—
(i)  the names of licensees and owner-builders, and
(ii)  the names of the approved insurers (where relevant) of the licensees under Part 6 of the Home Building Act 1989, and
(iii)  the numbers endorsed on contractor licences and permits of which the council is informed under the requirements of this Regulation,
(ma)  in the case of a consent subject to a condition under section 4.17(10B) of the Act, the outcome of any review carried out under the condition,
(n)  the date of issue of any related subdivision or occupation certificate,
(o)  any approvals taken, by section 4.12 of the Act, to have been granted under the Local Government Act 1993,
(p)  any approvals under an Act that were considered as part of the integrated development process.
(3)  The register must contain the following indexes of the development consents referred to in subclause (2)—
(a)  an index prepared by reference to the address of the land to which each development relates,
(b)  an index prepared by reference to the chronological order of the granting of each development consent.
(4)  For the purposes of section 4.58 of the Act, the prescribed form for the register is a book, in loose-leaf form, or an electronic data retrieval system.
cl 264: Am 2008 No 36, Sch 2.10 [11]; 2018 (66), Sch 2 [22]; 2018 No 63, Sch 3.4[3].
265   Council to maintain a register of complying development applications
(cf clause 109B of EP&A Regulation 1994)
(1)  A council must maintain a register containing details of the following matters for each application for a complying development certificate whether or not the council is the certifier—
(a)  the date when the application was made,
(b)  the name and address of the person making the application,
(c)  the address, and formal particulars of title, of the land to which the certificate relates,
(d)  the date when the certificate was granted or refused,
(e)  if the certificate was granted or refused by a registered certifier, the name and registration number of the registered certifier,
(f)  the date of commencement of building or subdivision work the subject of the certificate,
(g)  the name and registration number of the principal certifier appointed in relation to the building or subdivision work the subject of the certificate,
(h)  in the case of a certificate concerning residential building work (within the meaning of the Home Building Act 1989)—
(i)  the names of licensees and owner-builders, and
(ii)  the names of the approved insurers (where relevant) of the licensees under Part 6 of the Home Building Act 1989, and
(iii)  the numbers endorsed on contractor licences and permits of which the council is informed under the requirements of this Regulation,
(i)  the date of issue of any related subdivision or occupation certificate,
(j)  the date on which notice of the granting of the certificate was published under section 4.59 of the Act.
(2)  The register must contain the following indexes of the complying development certificates referred to in subclause (1)—
(a)  an index prepared by reference to the address of the land to which each certificate relates,
(b)  an index prepared by reference to the chronological order of the granting of each certificate.
(3)  The register is to be kept in the form of a book, in loose-leaf form, or in the form of an electronic data retrieval system.
(4)  The register under this clause is the register prescribed for the purposes of section 4.58 of the Act.
cl 265: Am 2008 No 62, Sch 2.22; 2018 (66), Sch 2 [22]; 2018 No 63, Sch 3.4[2]–[4].
266   Council to keep certain documents relating to development applications and consents
(cf clause 109C of EP&A Regulation 1994)
(1)  A council must keep the following documents for each development application made to it and each development consent resulting from a development application made to it—
(a)  a copy of the development application,
(b)  a copy of the relevant section 4.18 notice to the applicant,
(c)  a copy of any instrument by which some other development consent or existing use right has been modified or surrendered,
(d)  a copy of the decision of the Land and Environment Court, in the case of a development consent granted by the Court on appeal from the determination of the council,
(e)    (Repealed)
(f)  a copy of any recommendations made by relevant employees of the council with respect to the determination of the application,
(g)  if the development consent has been revoked, modified or surrendered, a copy of the instrument of revocation, modification or surrender,
(h)  a copy of any notice published on the council’s website in respect of the development consent as referred to in section 4.59 of the Act,
(i)  a copy of the notification of the determination to issue a construction certificate relating to the consent and a copy of the certificate and any related plans, specifications and any other documents that were forwarded to the council,
(j)  a copy of the notification of the appointment of the principal certifier and the notification of the commencement of building or subdivision work relating to the development the subject of the consent,
(k)  a copy of the notification of the determination of an application for an occupation certificate relating to any building the subject of the consent,
(l)  a copy of the notification of the determination of an application for a subdivision certificate relating to any subdivision the subject of the consent and the endorsed plan of subdivision,
(m)  a copy of the notification of the determination of any application for a compliance certificate relating to the development the subject of the consent and any relevant plans and specifications and other documents relating to the compliance certificate,
(n)  a copy of a decision of the Land and Environment Court in the case of an occupation certificate, subdivision certificate or construction certificate issued by the Court on appeal from a determination of the council,
(o)  details of approved performance solutions relating to construction certificates or compliance certificates together with details of the assessment methods used to establish compliance with the relevant performance requirements,
(p)  a copy of the record of any inspection made for the purposes of clause 143B in respect of the proposed development concerned.
(2)  A council must keep the documents referred to in subclause (1) that are furnished to it in accordance with this Regulation by any other consent authority or certifier in those cases where the council is not the consent authority or certifier.
cl 266: Am 2009 (39), Sch 1 [13]; 2011 (510), Sch 2 [54]; 2018 (66), Sch 2 [22]; 2019 (426), Sch 1[69]; 2020 (167), Sch 1[38].
267   Council to keep certain documents relating to complying development certificates
(cf clause 109D of EP&A Regulation 1994)
A council must keep the following documents for each application for a complying development certificate whether or not the application is made to the council and each complying development certificate whether or not the certificate is issued by the council—
(a)  a copy of the determination of the application for a complying development certificate including any related plans and specifications,
(b)  a copy of any notice published on the council’s website in respect of the complying development certificate as referred to in section 4.59 of the Act,
(c)  a copy of the notification of the appointment of the principal certifier and the notification of the commencement of building or subdivision work relating to the development the subject of the complying development certificate,
(d)  a copy of the notification of the determination of an application for an occupation certificate relating to any building the subject of the complying development certificate,
(e)  a copy of the notification of the determination of an application for a subdivision certificate relating to any subdivision the subject of the complying development certificate and the endorsed plan of subdivision,
(f)  a copy of the notification of the determination of any application for a compliance certificate relating to the development the subject of the complying development certificate,
(g)  a copy of a decision of the Land and Environment Court in the case of an occupation certificate or subdivision certificate issued by the Court on appeal from a determination of the council,
(h)  details of approved performance solutions relating to compliance certificates, together with details of the assessment methods used to establish compliance with the relevant performance requirements,
(i)  a copy of the record of any inspection made for the purposes of clause 129B in respect of the proposed development concerned,
(j)  a copy of each notice given to, or given by, the council under clause 130AB.
cl 267: Am 2009 (39), Sch 1 [14]; 2013 (705), Sch 1 [38]; 2019 (426), Sch 1[69]; 2020 (167), Sch 1[39].
267A   (Repealed)
cl 267A: Ins 2010 (513), Sch 1 [7]. Am 2019 (426), Sch 1[18]. Rep 2021 (689), Sch 3[3].
268   Council to keep certain records available for public inspection
(cf clause 109E of EP&A Regulation 1994)
(1)  A council must make the following documents available for inspection at its principal office, free of charge, during the council’s ordinary office hours—
(a)  the registers kept under clauses 264 and 265,
(b)  the documents kept under clauses 266 and 267.
(2)  A copy of any extracts from the registers or a copy of any of the other documents may be made on payment of a reasonable copying charge set by the council.
(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.
Part 16A
268A, 268B  (Repealed)
pt 16A: Ins 2007 (496), Sch 1 [45]. Rep 2021 (689), Sch 3[3].
cl 268A: Ins 2007 (496), Sch 1 [45]. Am 2009 (511), Sch 1 [36] [37]; 2011 (70), Sch 1 [15]; 2018 (66), Sch 2 [22]. Rep 2021 (689), Sch 3[3].
cl 268B: Ins 2007 (496), Sch 1 [45]. Rep 2009 (511), Sch 1 [38].
Part 16B
268C–268X  (Repealed)
pt 16B, hdg: Ins 2008 No 36, Sch 2.10 [12]. Am 2011 (70), Sch 1 [16]. Rep 2018 (66), Sch 2 [15].
pt 16B: Ins 2008 No 36, Sch 2.10 [12]. Rep 2018 (66), Sch 2 [15].
pt 16B, div 1, hdg: Ins 2008 (467), Sch 1 [32]. Rep 2018 (66), Sch 2 [15].
pt 16B, div 1: Rep 2018 (66), Sch 2 [15].
cl 268C: Ins 2008 No 36, Sch 2.10 [12]. Am 2008 (467), Sch 1 [33]; 2009 (269), Sch 1 [16]. Rep 2018 (66), Sch 2 [15].
cll 268D: Ins 2008 No 36, Sch 2.10 [12]. Rep 2018 (66), Sch 2 [15].
cll 268E: Ins 2008 No 36, Sch 2.10 [12]. Rep 2018 (66), Sch 2 [15].
cl 268F: Am 2008 (467), Sch 1 [34] [35]. Rep 2018 (66), Sch 2 [15].
cll 268G–268J: Ins 2008 No 36, Sch 2.10 [12]. Rep 2018 (66), Sch 2 [15].
pt 16B, div 2, hdg: Ins 2008 (467), Sch 1 [36]. Rep 2011 (70), Sch 1 [17].
cl 268K: Ins 2008 No 36, Sch 2.10 [12]. Rep 2011 (70), Sch 1 [17].
pt 16B, div 3, hdg: Ins 2008 (467), Sch 1 [37]. Rep 2018 (66), Sch 2 [15].
pt 16B, div 3: Rep 2018 (66), Sch 2 [15].
cll 268L–268N: Ins 2008 No 36, Sch 2.10 [12]. Rep 2018 (66), Sch 2 [15].
cl 268NA: Ins 2009 (269), Sch 1 [17]. Rep 2018 (66), Sch 2 [15].
pt 16B, div 4: Ins 2008 (467), Sch 1 [38]. Rep 2018 (66), Sch 2 [15].
cl 268O: Ins 2008 (467), Sch 1 [38]. Subst 2011 (510), Sch 2 [55]. Rep 2018 (66), Sch 2 [15].
cl 268P: Ins 2008 (467), Sch 1 [38]. Rep 2018 (66), Sch 2 [15].
cl 268Q: Ins 2008 (467), Sch 1 [38]. Am 2011 (510), Sch 2 [56]. Rep 2018 (66), Sch 2 [15].
cl 268R: Ins 2008 (467), Sch 1 [38]. Am 2011 (510), Sch 2 [57]–[59]. Rep 2018 (66), Sch 2 [15].
cll 268S–268W: Ins 2008 (467), Sch 1 [38]. Rep 2018 (66), Sch 2 [15].
pt 16B, div 5 (cl 268X): Ins 2008 (467), Sch 1 [38]. Rep 2018 (66), Sch 2 [15].
pt 16B, div 5 (cl 268X): Ins 2008 (467), Sch 1 [38]. Rep 2018 (66), Sch 2 [15].
Part 16C Paper subdivisions
pt 16C: Ins 2013 (91), Sch 1 [2].
Division 1 Preliminary
pt 16C, div 1: Ins 2013 (91), Sch 1 [2].
268Y   Interpretation
(1)  In this Part—
consent ballot—see clause 268ZC.
co-owner of a lot means a person who owns a lot jointly with 1 or more other persons.
(2)  Words and expressions used in this Part have the same meaning as they have in Schedule 7 to the Act.
cl 268Y: Ins 2013 (91), Sch 1 [2]. Am 2018 (66), Sch 2 [22].
268YA   Subdivision works
(1)  For the purposes of the definition of subdivision works in Schedule 7 to the Act, works for the following purposes are prescribed—
(a)  gas supply,
(b)  remediation of contaminated land,
(c)  demolition of a building or work if the demolition is required to carry out other subdivision works.
(2)  In this clause—
contaminated land has the same meaning as in Part 7A of the Act.
cl 268YA: Ins 2014 (237), c1 3. Am 2018 (66), Sch 2 [22].
Division 2 Preparation and notice of proposed development plans
pt 16C, div 2: Ins 2013 (91), Sch 1 [2].
268Z   Additional matters to be included in development plans
For the purposes of clause 6(2)(g) of Schedule 7 to the Act, a development plan is to include the following matters—
(a)  the land value of the land as determined by the Valuer-General under the Valuation of Land Act 1916,
(b)  if the development of the land is to be staged, a description of the proposed stages,
(c)  a proposed timetable for the subdivision of the land and the carrying out of the subdivision works.
cl 268Z: Ins 2013 (91), Sch 1 [2]. Am 2018 (66), Sch 2 [22].
268ZA   Preparation of development plans
(1)  An authority that proposes to prepare a development plan on its own initiative must notify the Minister in writing that it proposes to do so.
(2)  Any authority that prepares a development plan must consult with any public authorities likely to be affected by the proposed development plan and any council in whose area the land concerned is situated.
(3)  An authority must consider any submissions made by the public authorities or a council when preparing the proposed development plan.
cl 268ZA: Ins 2013 (91), Sch 1 [2].
268ZB   Notice of proposed development plans and consent ballots
(1)  An authority that proposes to adopt a development plan must, not less than 14 days before the ballot papers are issued for the consent ballot, publish on the NSW planning portal a notice containing the following information—
(a)  that the authority proposes to adopt a development plan,
(b)  the website on which the proposed development plan is published,
(c)  the date by which a vote in the ballot to approve the development plan must be received and the address to which it must be sent,
(d)  the name, contact phone number and email address of the authority.
(2)  The authority must also—
(a)  give a copy of the notice to each council in whose area the land is situated, and
(b)  display, on or in the vicinity of the land to which the development plan applies, a copy of the notice for not less than 28 days before the ballot closes, and
(c)  publish the proposed development plan on a public website.
cl 268ZB: Ins 2013 (91), Sch 1 [2]. Subst 2020 (167), Sch 1[40].
Division 3 Consent by owners
pt 16C, div 3: Ins 2013 (91), Sch 1 [2].
268ZC   Consent ballot to be held
(1)  Consent to a proposed development plan by owners of the land subject to the plan is to be determined by the authority proposing the plan by holding a postal ballot (a consent ballot).
(2)  The authority must—
(a)  determine the form of the ballot paper, and
(b)  fix the dates for forwarding of ballots to owners and the closing of the ballot, and
(c)  appoint a returning officer for the ballot.
(3)  The form of the ballot paper must be approved by the Planning Secretary.
(4)  Without limiting subclause (2), the ballot paper must specify, or require the owner to specify the following—
(a)  the name of the owner and the lot and deposited plan particulars of all land held by the owner that is subject to the proposed development plan,
(b)  the name of any other co-owner of a lot so specified.
(5)  The returning officer may be assisted by a person or persons approved by the authority.
cl 268ZC: Ins 2013 (91), Sch 1 [2].
268ZD   Voting roll and ballot papers
(1)  The returning officer must prepare a voting roll containing the following matters—
(a)  the names and addresses of all of the owners of each lot of land subject to the proposed development plan,
(b)  a unique identifier for each group of co-owners of land subject to the proposed development plan,
(c)  the lot and deposited plan numbers, and area, of the lots of land owned by each owner (other than as a co-owner),
(d)  the lot and deposited plan numbers, and area, of the lots of land owned by each group of co-owners (identified by the unique identifier for each group).
(2)  The returning officer must cause ballot papers to be prepared in the form determined by the authority and approved by the Planning Secretary.
(3)  Each ballot paper must—
(a)  be initialled by the returning officer or an appointed assistant, and
(b)  bear a mark that identifies it as a genuine ballot paper.
(4)  Each owner of land subject to the proposed development plan is entitled to one ballot paper, whether or not the land consists of one or more lots and whether or not it is owned with other co-owners or the same co-owners.
Note—
For the purposes of determining the consent of an owner of land to a development order, 2 or more owners of the same lot of land are to be treated as one owner (see clause 3(3) of Schedule 7 to the Act and clause 268ZG(4)).
(5)  The returning officer must, at least 28 days before the date fixed for the closing of the ballot, send by post or otherwise deliver to every owner entitled to a ballot paper one set of the following material—
(a)  one ballot paper,
(b)  a statement as to the place, date and time at which the proposed development plan is available for inspection or the address of a website where it may be found,
(c)  an envelope (the outer envelope) addressed to the returning officer and the reverse side of which is noted or printed with the name and address of the owner and the lots and deposited plan numbers of the land to which the ballot paper relates,
(d)  a small envelope (the inner envelope) in which the ballot paper is to be enclosed,
(e)  a statement relating to the ballot in a form approved by the Planning Secretary.
(6)  The returning officer may send a duplicate ballot paper to any owner if the returning officer is satisfied that the owner has not received a ballot paper or that the ballot paper received by the owner has been lost, spoilt or destroyed and that the owner has not already voted.
(7)  If a duplicate ballot paper is sent, the relevant outer envelope is to be marked with the word “Duplicate”.
cl 268ZD: Ins 2013 (91), Sch 1 [2]. Am 2018 (66), Sch 2 [22].
268ZE   Voting
An owner casts a vote in a consent ballot by—
(a)  completing the ballot paper according to the instructions on the ballot paper, and
(b)  sending the ballot paper, in the envelopes provided, to the returning officer.
cll 268ZE–268ZI: Ins 2013 (91), Sch 1 [2].
268ZF   Safe keeping of ballot papers
(1)  The returning officer must provide a ballot box that must be secured immediately before the ballot papers are delivered to the owners in accordance with this Division and must remain secured until the close of the ballot.
(2)  The returning officer must place the outer envelopes in the ballot box not later than the time and date fixed on the ballot paper for the closing of the ballot.
cll 268ZE–268ZI: Ins 2013 (91), Sch 1 [2].
268ZG   Counting of votes
(1)  As soon as practicable after the date fixed for the closing of the consent ballot, the returning officer must, in the presence of such scrutineers as are appointed by the authority conducting the ballot, open the ballot box and deal with the contents in accordance with this clause.
(2)  The returning officer must—
(a)  examine the outer envelopes, and
(b)  if a duplicate outer envelope has been issued and the original outer envelope is received, reject the original envelope and mark it “rejected”, and
(c)  mark the owner’s name on the roll by drawing a line through the name and the lots of land to which the envelope relates, and
(d)  remove the inner envelopes from the outer envelopes, and
(e)  when all the inner envelopes have been dealt with in the above manner, open all unrejected inner envelopes and take the ballot papers from them.
(3)  The ballot papers must be scrutinised by the returning officer who must count as informal any ballot paper that—
(a)  is not duly initialled by the returning officer or appointed assistant or does not bear a mark that identifies it as a genuine ballot paper, or
(b)  is so imperfectly completed that the intention of the voter cannot be ascertained by the returning officer, or
(c)  has not been completed as prescribed on the ballot paper itself.
(4)  If a lot of land is owned by a group of co-owners, the votes are to be counted as follows—
(a)  if all the co-owners or a majority of the co-owners of the lot cast a formal vote in favour of the development plan, the vote in respect of the lot is taken to be one formal vote consenting to the development plan for the lot,
(b)  in any other case, the vote is taken not to be a formal vote in favour of consent to the development plan in respect of the lot.
cll 268ZE–268ZI: Ins 2013 (91), Sch 1 [2].
268ZH   Result of ballot
(1)  The returning officer must count all votes cast and make out and sign a statement of—
(a)  the total number of owners who are eligible to vote, and
(b)  the number of formal votes by those owners consenting to the development plan, and
(c)  the number of formal votes by those owners against consent to the development plan, and
(d)  the number of informal votes by those owners, and
(e)  the number of envelopes marked “rejected”, and
(f)  the number of lots of land in respect of which no votes were cast, and
(g)  the proportion of the total number of owners of lots subject to the proposed development plan who cast formal votes in favour of consent to the plan, and
(h)  the proportion of the total area of the land subject to the proposed development plan that is owned by sole owners and groups of co-owners who have cast formal votes in favour of consent to the plan.
Note—
See clause 268ZG(4) for how the vote of groups of co-owners of the same lot is determined.
(2)  For the purposes of this clause, the total number of owners means the sum of—
(a)  the total number of sole owners of lots (whether or not they are also the co-owners of other lots), and
(b)  the total number of groups of co-owners of lots.
(3)  The returning officer must give the authority and the Planning Secretary written notice of the result of the consent ballot, together with a copy of the voting roll.
cll 268ZE–268ZI: Ins 2013 (91), Sch 1 [2].
268ZI   Retention of ballots
The returning officer must retain—
(a)  all ballot papers (whether formal or otherwise), and
(b)  all rejected outer envelopes, and
(c)  the voting roll,
used in connection with the consent ballot, locked in the ballot box, for a period of not less than 3 months unless directed by the Planning Secretary to retain those items for a longer period.
cll 268ZE–268ZI: Ins 2013 (91), Sch 1 [2].
Division 4 Adoption and amendment of development plans
pt 16C, div 4: Ins 2013 (91), Sch 1 [2].
268ZJ   Adoption of development plans
(1)  A development plan is adopted by an authority if—
(a)  the authority resolves to adopt the plan or takes such other action as is necessary to take the decision to adopt the plan, and
(b)  the authority publishes notice of the adoption of the plan on the NSW planning portal within 28 days after the decision of the authority to adopt the plan.
(2)  An authority must not adopt a development plan unless it is satisfied that the consent of the owners, as referred to in clause 3(2)(g) of Schedule 7 to the Act, has been obtained in relation to that plan.
(3)  A development plan that is adopted by an authority is taken to be in force in relation to the subdivision land for the purposes of clause 4(5) of Schedule 7 to the Act.
cl 268ZJ: Ins 2013 (91), Sch 1 [2]. Am 2018 (66), Sch 2 [22]; 2020 (167), Sch 1[41].
268ZK   Amendment of development plans
A proposed amendment to a development plan is adopted by the relevant authority if—
(a)  the authority resolves to adopt the amendment or takes such other action as is necessary to take the decision to adopt the amendment, and
(b)  the authority gives written notice of the amendment to the Minister, the owners of the land to which the development plan applies and each council in whose area the land is situated within 28 days after the decision of the authority to adopt the amendment.
cl 268ZK: Ins 2013 (91), Sch 1 [2].
268ZL   Additional requirements for amendments other than minor amendments
(1)  An authority that proposes to adopt a major amendment to a development plan—
(a)  must give notice of the proposed amendment in accordance with the requirements of clause 268ZB for proposed development plans, and
(b)  must not adopt the proposed amendment unless at least 60% of the total owners of the land subject to the development plan, and the owners of at least 60% of the total area of that land, have consented to the amendment.
(2)  For the purposes of subclause (1)(b), a ballot is to be held in accordance with Division 3 and that Division applies in respect of the proposed amendment in the same way that it applies to a proposed development plan.
(3)  An authority that proposes to adopt an amendment to a development plan that is not a major amendment or a minor amendment must—
(a)  publish a notice that complies with subclause (4) on the NSW planning portal, and
(b)  give a written notice complying with subclause (4) to any council in whose area the land is situated, and
(c)  display, on or in the vicinity of the land to which the development plan applies, a notice complying with subclause (4) during the submission period specified in the notice, and
(d)  make the proposed amendment publicly available, and
(e)  before adopting the amendment, consider any submissions received within the submission period specified in a notice given under this subclause.
(4)  The notice must specify the following—
(a)  the place, date and time at which the proposed amendment is available for inspection or the address of a website where it may be found,
(b)  the period (being not less than 28 days) during which submissions may be made to the authority about the proposed amendment,
(c)  the name, contact phone number and email address of the authority.
(5)  In this clause—
major amendment means an amendment to a development plan that is not a minor amendment and that—
(a)  in the opinion of the Minister, if adopted, would require an amendment to be made to the subdivision order relating to the land to which the development plan applies, or
(b)  amends provisions of the development plan that modify or disapply the provisions of Division 4 of Part 3 of the Land Acquisition (Just Terms Compensation) Act 1991.
minor amendment means an amendment to a development plan that—
(a)  corrects an error or misdescription, or
(b)  consists of a minor realignment of the boundaries of lots in the proposed plan of subdivision that will not create additional lots or the opportunity for additional dwellings, or
(c)  alters to a minor extent the location of roads or services to be provided, or
(d)  varies the proportion of costs to be borne by one or more owners of the land by not more than 5% in any particular case.
cl 268ZL: Ins 2013 (91), Sch 1 [2]. Am 2020 (167), Sch 1[42].
Division 5 Miscellaneous
pt 16C, div 5: Ins 2013 (91), Sch 1 [2].
268ZM   Contributions by owners
(1)  A notice given under clause 9(1) of Schedule 7 to the Act must specify the following—
(a)  the amount of the contribution sought,
(b)  the period within which the contribution is to be paid (being a period of not less than 90 days).
(2)  For the purposes of clause 9(5) of Schedule 7 to the Act, the value of land dedicated or traded to the relevant authority in accordance with a development plan is the land value of the land, as at the date the land is dedicated or traded, as determined by the Valuer-General under the Valuation of Land Act 1916.
cll 268ZM: Ins 2013 (91), Sch 1 [2]. Am 2018 (66), Sch 2 [22].
268ZN   Powers of entry
(1)  This clause applies to entry onto land under clause 15 of Schedule 7 to the Act.
(2)  Entry may be made only at any reasonable hour in the daytime or at any hour during which business is in progress or is usually carried on at the land.
(3)  At least 24 hours notice must be given to the owner or occupier of the land of the intention to enter the land.
(4)  An authorised person must not enter any part of premises being used for residential premises without the consent of the owner or occupier.
cll 268ZN: Ins 2013 (91), Sch 1 [2]. Am 2018 (66), Sch 2 [22].
268ZO   Notice to council of subdivision action
A relevant authority must give written notice of the following matters to a council—
(a)  the adoption by the authority of a development plan relating to land within the area of the council,
(b)  the making of a subdivision order or an amendment to a subdivision order relating to land within the area of the council,
(c)  the completion of subdivision works carried out by or on behalf of the authority on land within the area of the council.
cll 268ZO: Ins 2013 (91), Sch 1 [2].
268ZP   Reporting requirements for relevant authorities
(1)  A relevant authority under a subdivision order must, not later than 3 months after the end of each financial year, report to the Minister in writing as to the following—
(a)  actions taken during that year by the authority for the purposes of implementing the development plan for the subdivision land,
(b)  particulars of any purchases and sale or other acquisition or disposal of subdivision land by the authority during that year, including particulars of compensation and other amounts paid or received by the authority,
(c)  particulars of contributions required to be made, and made or not made, by owners of subdivision land during that year under the subdivision order,
(d)  particulars of amounts paid by the authority during that year from funds received for carrying out subdivision works,
(e)  any other matter specified by the Minister by notice in writing to the authority relating to the subdivision order,
(f)  any other matter the relevant authority thinks relevant to its functions as a relevant authority.
(2)  The relevant authority under a subdivision order must, as soon as practicable after it considers that the planning purpose of the order has been achieved and the development plan for the subdivision land implemented, or at the request of the Minister, provide the following to the Minister—
(a)  a schedule of completed subdivision works under the development plan for the subdivision land,
(b)  the audited accounts of the authority in relation to its activities under the subdivision order,
(c)  particulars of any unspent funds collected by the authority under the subdivision order,
(d)  particulars of a proposed scheme for distribution of the unspent funds and of consultation with owners of the subdivision land as to that scheme,
(e)  particulars of any purchases and sale or other acquisition or disposal of subdivision land by the authority for the purposes of the subdivision order, including particulars of amounts paid or received by the authority,
(f)  particulars of any subdivision land owned by the authority,
(g)  particulars of the notification by the authority of owners of the subdivision land of the completion of implementation of the development plan.
cll 268ZP: Ins 2013 (91), Sch 1 [2].
Part 17 Miscellaneous
269   Notice of proposal to constitute development area
(cf clause 110 of EP&A Regulation 1994)
A notification under section 7.38(4) of the Act of the Planning Secretary’s proposal to include the whole or any part of a council’s area in a development area must be given by instrument in writing posted or delivered to the councils concerned.
cl 269: Am 2018 (66), Sch 2 [22]; 2018 No 68, Sch 2.12 [2].
270   Contributions plans for Western Sydney Employment Area
(1)  Pursuant to section 4.16(11) of the Act, a development application in relation to any land zoned IN1 General Industrial under State Environmental Planning Policy (Western Sydney Employment Area) 2009 must not be determined by the consent authority unless a contributions plan under section 7.18 of the Act has been approved for the land to which the application relates.
(2)  Despite subclause (1), a consent authority may dispense with the need for a contributions plan referred to in that subclause if—
(a)  the development application is, in the opinion of the consent authority, of a minor nature, or
(b)  the developer has entered into a planning agreement with a planning authority (within the meaning of section 7.1 of the Act) with respect to the matters that may be the subject of a contributions plan.
cl 270: Am 16.2.2001. Subst 2009 (406), cl 3 (1). Am 2018 (66), Sch 2 [22]; 2020 (253), cl 3.
270A   Contributions plans for Sydney Region Growth Centres
(1)  This clause applies to land within a residential, business or industrial zone, Zone E4 Environmental Living or Zone 1 Urban Development under a Precinct Plan in State Environmental Planning Policy (Sydney Region Growth Centres) 2006.
(2)  Pursuant to section 4.16(11) of the Act, a development application in relation to any land to which this clause applies must not be determined by the consent authority unless a contributions plan under section 7.18 of the Act, authorising the imposition of conditions under section 7.11 of the Act, is in force in relation to the land to which the application relates.
(3)  Despite subclause (2), a consent authority may dispense with the need for a contributions plan referred to in that subclause if—
(a)  the development application is, in the opinion of the consent authority, of a minor nature, or
(b)  the developer has entered into a planning agreement with a planning authority (within the meaning of section 7.1 of the Act) with respect to the matters that may be the subject of a contributions plan.
(4)  The application of this clause extends to a development application made to a consent authority but not finally determined before the commencement of this clause.
cl 270A: Ins 2019 (23), cl 3.
271   Contributions plans for Western Sydney Aerotropolis
(1)  For the purposes of section 4.16(11) of the Act, a development application in relation to land shown on the Land Application Map under State Environmental Planning Policy (Western Sydney Aerotropolis) 2020 must not be determined by the consent authority unless a contributions plan has been approved for the land to which the application relates.
(2)  However, a contributions plan is not required if—
(a)  the development application is, in the opinion of the consent authority, of a minor nature, or
(b)  the applicant has entered into a planning agreement with a planning authority under Part 7 of the Act for the matters that may be the subject of a contributions plan.
cl 271: Am 16.2.2001; 2005 (339), Sch 1 [17]; 2005 (600), Sch 1 [11]. Rep 2009 (406), cl 3 (2). Ins 2020 (536), Sch 1[2].
271A, 271B   (Repealed)
cl 271A: Ins 2008 (491), Sch 1. Rep 2012 (471), cl 3 (1).
cl 271B: Ins 2008 (490), Sch 1. Rep 2012 (471), cl 3 (2).
272   Planning for Bush Fire Protection
For the purposes of section 4.14(1)(a) of the Act, the version of the document entitled Planning for Bush Fire Protection with ISBN 978 0 646 99126 9 and dated November 2019 is prescribed.
cl 272: Rep 2005 (600), Sch 1 [12]. Ins 2007 (108), cl 2. Am 2015 No 15, Sch 1.10; 2018 (66), Sch 2 [22]; 2020 (64), Sch 1[1].
273   Development excluded from application of requirements relating to bush fire prone land
(1)  Development comprising the erection, on land in an urban release area, of a building that is, or is ancillary to, a dual occupancy, dwelling house or secondary dwelling is excluded from the application of section 4.14 of the Act if—
(a)  the consent authority has been provided with a bush fire safety authority for the subdivision of the land that—
(i)  was in force on the date on which the development application for the development was duly lodged, and
(ii)  was issued no more than 5 years before that date, and
(b)  the consent authority is satisfied that the proposed development complies with standards (concerning setbacks, asset protection zones, provision of water supply or other matters) specified in the bush fire safety authority that are relevant to that development, and
(c)  the consent authority has been provided with a copy of a plan of subdivision that—
(i)  shows bush fire attack levels for the land, and
(ii)  contains a notation from the NSW Rural Fire Service showing that the plan was considered when the application for the bush fire safety authority was determined under the Rural Fires Act 1997, and
(iii)  accompanies a certificate (a post-subdivision bush fire attack level certificate) to the effect that, when the certificate was issued, the bush fire attack level of the part of the land on which the development is proposed to be carried out corresponded to the bush fire attack level shown on the plan and that part of the land was not in bush fire attack level–40 (BAL–40) or the flame zone (BAL–FZ).
(2)  The post-subdivision bush fire attack level certificate must—
(a)  specify the address and formal particulars of title of the land to which it relates, and
(b)  specify the date on which it was issued, and
(c)  contain identifying particulars of the bush fire safety authority, and
(d)  if the subdivision to which the bush fire safety authority relates required development consent—contain identifying particulars of that development consent (such as the name of the applicable consent authority or certifier, the date on which the consent was granted or issued and any registered number of the consent).
(3)  A post-subdivision bush fire attack level certificate may only be issued by the NSW Rural Fire Service or a recognised consultant.
(4)  If an application for a post-subdivision bush fire attack level certificate is made to the NSW Rural Fire Service, it must be accompanied by the fee determined by the NSW Rural Fire Service.
(5)  The maximum fee that the NSW Rural Fire Service may charge for the application is as follows—
(a)  if the application relates to a single lot or proposed lot—$500, or
(b)  if the application relates to 2 to 10 lots or proposed lots—$500, plus $300 for each lot or proposed lot exceeding 1 lot, or
(c)  if the application relates to 11 or more lots or proposed lots—$3,200, plus $150 for each lot or proposed lot exceeding 10 lots.
(6)  A recognised consultant must, within 7 days after issuing a post-subdivision bush fire attack level certificate, forward it to the Commissioner of the NSW Rural Fire Service.
(7)  The methodology for determining bush fire attack levels, for the purposes of this clause, is the methodology specified in Planning for Bush Fire ProtectionISBN 978 0 646 99126 9 dated November 2019.
(8)  In this clause—
AS 3959:2018 means the Australian Standard AS 3959:2018, Construction of buildings in bushfire-prone areas.
bush fire attack level has the same meaning as in AS 3959:2018.
bush fire attack level–40 (BAL–40) and flame zone (BAL–FZ) have the same meanings as in Appendix G to AS 3959:2018.
Note—
More information about bush fire attack levels, including the flame zone, can be found in Table A1.7 of Planning for Bush Fire ProtectionISBN 978 0 646 99126 9 dated November 2019.
bush fire safety authority has the same meaning as in Division 8 of Part 4 of the Rural Fires Act 1997.
dual occupancy, dwelling house and secondary dwelling have the same meanings as in the Standard Instrument.
recognised consultant means a person recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment.
urban release area means land that is shown as being within an urban release area on the series of maps marked “Bush Fire Planning—Urban Release Area Map” (approved by the Planning Secretary, by notice published in the Gazette, and held in the head office of the Department), as amended by the maps (or specified sheets of maps) that are—
(a)  approved by the Planning Secretary, by notice published in the Gazette, and
(b)  marked as specified in that notice, and
(c)  held in the head office of the Department.
cl 273: Rep 2005 (600), Sch 1 [12]. Ins 2014 (285), Sch 1 [2]. Am 2016 (303), Sch 1 [3]; 2018 (66), Sch 2 [22]; 2020 (64), Sch 1[2]–[5].
273A   Bush fire prone land map
(1)  For the purposes of section 10.3(2A) of the Act, the Commissioner of the NSW Rural Fire Service may review the designation of land on a bush fire prone land map, and revise the map accordingly, if the land is in an urban release area (within the meaning of clause 273) and the Commissioner is of the opinion that the map needs to be revised—
(a)  so that land on which the risk of bush fire is low is no longer recorded on the map as bush fire prone land, or
(b)  so that land on which the bush fire risk is not low is recorded on the map as bush fire prone land, or
(c)  to correct, or to record changes to, other information relating to land that is shown on the map.
(2)  For the purposes of forming an opinion under this clause, the Commissioner of the NSW Rural Fire Service may have regard to a post-subdivision bush fire attack level certificate applying in relation to the land or any other evidence that the Commissioner considers to be relevant.
cl 273A: Ins 2.7.2002. Rep 2005 (600), Sch 1 [12]. Ins 2014 (285), Sch 1 [2]. Am 2018 (66), Sch 2 [22].
273B   Transitional provision—Planning for Bush Fire Protection
An amendment made to clause 272 or 273 by the Environmental Planning and Assessment Amendment (Planning for Bush Fire Protection) Regulation 2020 does not apply to a development application made (but not determined) before 1 March 2020.
cl 273B: Ins 2020 (64), Sch 1[6].
274   Release areas under SREP 30
(1)  Pursuant to section 4.12(1) of the Act, a person cannot apply to a consent authority for consent to carry out development on land zoned “Employment” or “Urban” under Sydney Regional Environmental Plan No 30—St Marys unless the Minister has, in accordance with clause 7 of that plan, declared the land, or land that includes the land, to be a release area.
(2)  Subclause (1) does not apply to development referred to in clause 20(3) or (4) or 48 of Sydney Regional Environmental Plan No 30—St Marys.
cl 274: Rep 10.11.2000. Ins 19.1.2001. Am 2018 (66), Sch 2 [22].
274A, 274B   (Repealed)
cl 274A: Ins 19.1.2001. Rep 2005 (600), Sch 1 [12].
cl 274B: Ins 22.6.2001. Rep 2005 (600), Sch 1 [12].
275   Development assessment during precinct planning in North West and South West growth centres of Sydney Region
(1)  Terms and expressions used in this clause and clause 276 have the same meaning they have in State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP).
(2)  Pursuant to section 4.12(1) of the Act, a person cannot apply to a consent authority for consent to carry out development of a kind referred to in subclause (3) on land within a precinct of a growth centre that the Minister has declared under clause 276 to be released for urban development unless the application is accompanied by an assessment of the consistency of the proposed development with the relevant growth centre structure plan.
(3)  Subclause (2) applies to the carrying out of development (not being for a single residential dwelling)—
(a)  with a capital investment value of more than $500,000, or
(b)  in respect of an area of land of more than 2 hectares, or
(c)  that is a subdivision of land (being a subdivision that creates 2 or more lots).
(4)  This clause does not apply to land to which clause 17 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 does not apply.
Note—
After the release of a precinct for urban development and the completion of the planning process for the precinct, detailed land use and other development controls for the land will be included in the Growth Centres SEPP. A draft of those detailed provisions placed on public exhibition will be a draft amending environmental planning instrument and, accordingly, will be required by section 79C of the Act to be taken into consideration by a consent authority in determining any development application relating to the land concerned.
cl 275: Rep 2005 (600), Sch 1 [12]. Ins 2006 (417), Sch 1. Am 2007 (625), Sch 1 [1] [2]; 2010 (104), Sch 1 [16]; 2018 (66), Sch 2 [22].
275A   Development assessment in North and South East Wilton Precincts
(1)  For the purposes of section 4.12 of the Act, a person cannot apply to a consent authority for consent to carry out development on land within the North Wilton Precinct or the South East Wilton Precinct unless the application is accompanied by an assessment of the consistency of the proposed development with the relevant structure plans.
(2)  In this clause—
North Wilton Precinct and South East Wilton Precinct have the same meanings as in State Environmental Planning Policy (Sydney Region Growth Centres) 2006.
relevant structure plans means—
(a)  in relation to the North Wilton Precinct—the North Wilton structure plans within the meaning of Appendix 15 (North Wilton Precinct Plan) to State Environmental Planning Policy (Sydney Region Growth Centres) 2006, and
(b)  in relation to the South East Wilton Precinct—the South East Wilton structure plans within the meaning of Appendix 14 (South East Wilton Precinct Plan) to State Environmental Planning Policy (Sydney Region Growth Centres) 2006.
cl 275A: Ins 2018 (135), cl 3. Subst 2018 (652), cl 3.
275B   Development assessment in Mamre Road Precinct
(1)  For the purposes of section 4.12(1) of the Act, a person cannot apply to a consent authority for consent to carry out development on land within the Mamre Road Precinct unless the application is accompanied by an assessment of the consistency of the proposed development with the Mamre Road Precinct Structure Plan.
(2)  In this clause—
Mamre Road Precinct means the land identified as Mamre Road Precinct on the Land Application Map under the State Environmental Planning Policy (Western Sydney Employment Area) 2009.
Mamre Road Precinct Structure Plan means the Mamre Road Precinct Structure Plan dated June 2020 and published on the Department’s website.
cl 275B: Ins 2020 (253), cl 4.
275C   Requirements for development applications for Western Sydney Aerotropolis
For the purposes of section 4.12(1) of the Act, a person cannot apply to a consent authority for consent to carry out development on land in the Western Sydney Aerotropolis under State Environmental Planning Policy (Western Sydney Aerotropolis) 2020 unless the application is accompanied by an assessment of the consistency of the development with—
(a)  the Western Sydney Aerotropolis Plan as defined in that Policy, and
(b)  any precinct plan that applies to the land under that Policy.
cl 275C: Ins 2020 (536), Sch 1[3].
275D   Development assessment in Glenfield Precinct
(1)  For the purposes of the Act, section 4.12(1), a person cannot apply to a consent authority for consent to carry out development on land within the Glenfield Precinct unless the application is accompanied by an assessment of the consistency of the proposed development with—
(a)  the Glenfield Place Strategy, and
(b)  the Glenfield Precinct Structure Plan.
(2)  In this clause—
Glenfield Precinct means the land identified as Glenfield Precinct on the Locality and Site Identification Map for Campbelltown Local Environmental Plan 2015.
Glenfield Place Strategy means the Glenfield Place Strategy published on the Department’s website and in force from time to time.
Glenfield Precinct Structure Plan means the Glenfield Precinct Structure Plan published on the Department’s website and in force from time to time.
cl 275D: Ins 2021 (384), cl 3.
275E   Requirements for development applications for Rhodes Precinct
(1)  For the purposes of the Act, section 4.12(1) and (9), a person cannot apply to a consent authority for consent to carry out development on land within the Rhodes Precinct unless the application is accompanied by an assessment of the consistency of the development with the Rhodes Place Strategy.
(2)  In this clause—
Rhodes Place Strategy means the Rhodes Place Strategy
(a)  published on the website of the Department, and
(b)  as in force on 30 October 2021.
Rhodes Precinct has the same meaning as in Canada Bay Local Environmental Plan 2013.
cl 275E: Ins 2021 (628), sec 3.
276   Growth Centres SEPP—release of precinct for urban development and planning process for the precinct
(1)  The Minister may, for the purposes of the Growth Centres SEPP, declare any precinct (or part of a precinct) to be released for urban development. The declaration is to be published in the Gazette and in such other manner as the Minister determines.
Editorial note—
For declarations under this subclause, see Gazettes No 1 of 5.1.2007, p 4; No 76 of 27.6.2008, p 6368; No 13 of 16.1.2009, p 331; No 50 of 6.3.2009, p 1318; No 152 of 23.10.2009, p 5479; No 105 of 20.8.2010, p 3919; No 79 of 5.8.2011, p 5130; No 124 of 23.11.2012, p 4808; No 57 of 10.5.2013, p 1662; No 97 of 2.8.2013, p 3613; No 76 of 12.9.2014, p 3053; No 88 of 9.10.2015, p 3180; No 70 of 2.9.2016, p 2383; No 56 of 26.5.2017, p 1782 and No 126 of 24.11.2017, p 7207. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.
(2)  The Minister is to make arrangements for the preparation of a development code that provides guidelines (in conjunction with the relevant growth centre structure plan) to assist environmental planning in precincts released for urban development.
(3)  The Minister is to consult—
(a)  relevant councils about the making of declarations under this clause, and
(b)  relevant councils and such public authorities as the Minister considers appropriate about the making of arrangements under this clause.
cl 276: Rep 10.11.2000. Ins 2006 (417), Sch 1. Am 2008 No 122, Sch 11.2; 2010 (104), Sch 1 [17].
277   Public authorities
(1)  For the purpose of the definition of public authority in section 1.4(1) of the Act, Australian Rail Track Corporation Ltd is prescribed, but only so as—
(a)  to enable the corporation to be treated as a public authority within the meaning of Part 3A of the Act in relation to development for the purposes of rail and related transport facilities that is declared to be a project to which Part 3A applies under State Environmental Planning Policy (Major Development) 2005, and
(b)  to allow the corporation to be a determining authority within the meaning of Part 5 of the Act for—
(i)  development for the purposes of rail infrastructure facilities, development in or adjacent to rail corridors and development for prescribed railways or railway projects that is permitted without consent by a public authority under State Environmental Planning Policy (Infrastructure) 2007, and
(ii)  any other development for the purposes of rail infrastructure facilities and development in or adjacent to rail corridors within the meaning of that Policy that is permitted without consent under any other environmental planning instrument.
(2)    (Repealed)
(3)  For the purpose of the definition of public authority in section 1.4(1) of the Act, a Port Operator (within the meaning of State Environmental Planning Policy (Three Ports) 2013) is prescribed, but only so as to allow the Port Operator to be a determining authority within the meaning of Part 5 of the Act for development that is permitted without consent under that Policy on unzoned land or land in the Lease Area (within the meaning of that Policy) of the port concerned.
(4)  For the purpose of the definition of public authority in section 1.4(1) of the Act, the following universities are prescribed, but only so as to allow each university to be a determining authority within the meaning of Part 5 of the Act for development that is permitted without consent on land vested in, leased by or otherwise under the control or management of the university, under a provision of State Environmental Planning Policy (Infrastructure) 2007 or State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017
(a)  Charles Sturt University,
(b)  Macquarie University,
(c)  Southern Cross University,
(d)  University of New England,
(e)  University of New South Wales,
(f)  University of Newcastle,
(g)  University of Sydney,
(h)  University of Technology Sydney,
(i)  Western Sydney University,
(j)  University of Wollongong.
(5)  For the purpose of the definition of public authority in section 1.4(1) of the Act, an authorised network operator under the Electricity Network Assets (Authorised Transactions) Act 2015 is prescribed, but only so as to allow the authorised network operator to be a determining authority within the meaning of Part 5 of the Act for development for the purposes of an electricity transmission or distribution network (within the meaning of State Environmental Planning Policy (Infrastructure) 2007) operated or to be operated by the authorised network operator and that is—
(a)  permitted without consent by a public authority under that Policy, or
(b)  permitted without consent under any other environmental planning instrument.
(6)  For the purpose of the definition of public authority in section 1.4(1) of the Act, the proprietor of a registered non-government school is prescribed as a public authority (subject to subclause (7)), but only so as—
(a)  to enable the proprietor to be treated as a public authority in relation to development in connection with the school that is exempt development under clause 18 of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, and
(b)  to allow the proprietor to be a determining authority within the meaning of Part 5 of the Act for development that is permitted without consent under clause 36 of that Policy on land in a prescribed zone (within the meaning of clause 33 of that Policy).
(7)  Subclause (6) does not apply to a proprietor of a registered non-government school that the Planning Secretary determines is a school to which that subclause does not apply.
(8)  The Planning Secretary may vary or revoke a determination under subclause (7).
(9)  A determination under subclause (7), or a variation or revocation of a determination, takes effect when notice of it is published in the Gazette or on such later date as is specified in the determination, variation or revocation.
(10)  For the purpose of the definition of public authority in section 1.4(1) of the Act, the Regulatory Authority for New South Wales under the Children (Education and Care Services) National Law (NSW) (as declared by section 9 of the Children (Education and Care Services National Law Application) Act 2010) is prescribed as a public authority, but only for the purposes of section 3.18(2) of the Act.
Note—
Section 3.18(2) of the Act allows an environmental planning instrument to provide that a development application must not be determined by the granting of consent except with the concurrence of a Minister or public authority specified in the instrument.
(11)  To avoid doubt, a Minister of the Government of New South Wales is, for the purposes of the definition of public authority in section 1.4(1) of the Act, prescribed as a public authority in relation to section 4.5(c) of the Act.
cl 277: Am 3.9.2004; 2007 (342), Sch 1 [35]. Subst 2008 (118), Sch 1 [1]. Am 2009 No 106, Sch 2.13 [2]; 2012 (346), Sch 2 [7]; 2013 (236), Sch 1 [8]; 2014 (286) Sch 1 [1]; 2015 No 5, Sch 8.13 [2]; 2015 (405), cl 3; 2015 No 58, Sch 2.9 [1]; 2016 No 27, Sch 3; 2017 No 17, Sch 4.28 [4]; 2017 (491), Sch 1 [7] [8]; 2017 (716), cl 3; 2018 (66), Sch 2 [22]; 2018 (363), Sch 1 [6].
278   Assessment of loan commitments of councils in development areas
(cf clause 111 of EP&A Regulation 1994)
(1)  Any assessment to be made on a council under section 7.42(1) of the Act is to be made in accordance with the following formula—
 
where—
Contribution represents the amount to be contributed by the council.
Total assessment represents the total assessment for the development area, as referred to in section 7.42(1) of the Act.
Rateable value of council represents the value shown in the statement given by the council in relation to the assessment payable during the calendar year ending 31 December 1990 in respect of rateable land in the area or part of the area of the council.
Rateable value of all councils represents the total of the values shown in the statements given by all councils in the development area in relation to the assessment payable during the calendar year ending 31 December 1990 in respect of all rateable land in the areas or parts of the areas of all such councils.
(2)  The corporation is not obliged to notify a council of its intention to make an assessment, but (if an assessment is made) must serve notice of the assessment on each relevant council.
(3)  The notice must be served on or before 1 April before the financial year in which the assessed amount is to be paid.
(4)  For the purposes of section 7.42(4) of the Act, the prescribed day is the day occurring 3 months after notice of the assessment is served on the council.
cl 278: Am 2018 (66), Sch 2 [22].
279   What matters must be specified in a planning certificate?
(cf clause 112 of EP&A Regulation 1994)
(1)  The prescribed matters to be specified in a certificate under section 10.7(2) of the Act are the matters set out in Schedule 4.
(2)  A certificate under section 10.7(2) of the Act may be issued containing only the information set out in clause 3 of Schedule 4.
cl 279: Am 2009 (23), Sch 1 [4]; 2018 (66), Sch 2 [22].
280   Application for building information certificate
(cf clause 112A of EP&A Regulation 1994)
(1)  An application for a building information certificate in relation to the whole or a part of a building may be made to the council by—
(a)  the owner of the building or part or any other person having the owner’s consent to make the application, or
(b)  the purchaser under a contract for the sale of property, which comprises or includes the building or part, or the purchaser’s solicitor or agent, or
(c)  a public authority that has notified the owner of its intention to apply for the certificate.
(2)  An application must be accompanied by the fee payable under clause 260.
(2A)  An application that is lodged on or after 1 January 2022 must be lodged on the NSW planning portal.
(3)  Despite subclause (1)(a), the consent in writing of the owner of the building or part is not required if the applicant is a public authority and the public authority has, before making the application, served a copy of the application on the owner.
cl 280: Am 2021 (180), Sch 1[13]; 2021 (689), Sch 3[8].
281   Form and issue of building information certificate
(1)  A building information certificate must contain the following information—
(a)  a description of the building or part of the building being certified (including the address of the building),
(b)  the date on which the building or part of the building was inspected,
(c)  a statement to the effect that the council is satisfied as to the matters specified in section 6.25(1) of the Act,
(d)  a statement that describes the effect of the certificate in the same terms as, or in substantially similar terms to, section 6.25 of the Act,
(e)  the date on which the certificate is issued.
(2)  A building information certificate issued on or after 1 January 2022 must be issued to an applicant by means of the NSW planning portal.
cl 281: Am 2018 (66), Sch 2 [22]; 2021 (180), Sch 1[14] [15]; 2021 (689), Sch 3[9].
281A   Notice of orders under Schedule 5 to the Act
(1)  If a consent authority (other than a council) proposes to give an order under Division 2A of Part 6 of the Act in relation to building work or subdivision work for which the consent authority is not the principal certifier, the consent authority must give the principal certifier notice of its intention to give the order.
(2)  A notice required to be given under subclause (1) by a consent authority or under clause 9(2) of Schedule 5 to the Act by a council must be given within 7 days after the notice of intention to give the order concerned is given under section 121H(1) of the Act.
cl 281A: Ins 2010 (513), Sch 1 [8]. Am 2018 (66), Sch 2 [22].
281B   Form of compliance cost notices
(1)  For the purposes of clause 37(6)(b) of Schedule 5 to the Act, a compliance cost notice must contain the following—
(a)  details of the development to which the notice relates (including the address of the development),
(b)  the name of the person to whom the notice is issued,
(c)  the amount required to be paid under the notice,
(d)  the period within which the amount is to be paid,
(e)  the person to whom payment is to be made,
(f)  the method by which payment is to be made,
(g)  details of the costs and expenses claimed under the notice,
(h)  information setting out how a person may appeal against the notice under section 8.24 of the Act,
(i)  details of the action that may be taken against a person to recover the amount specified in the notice if it is not paid before the end of the period allowed for payment.
(2)  The notice must be accompanied by a copy of the order to which the notice relates.
cl 281B: Ins 2010 (759), Sch 1 [65]. Am 2018 (66), Sch 2 [22]; 2021 (624), sec 3(1).
281C   Maximum amounts payable under compliance cost notices—the Act, Sch 5, cl 37(6)
(1)    (Repealed)
(2)  The maximum amount that may be required to be paid under a compliance cost notice in respect of any costs or expenses relating to the preparation or serving of the notice of the intention to give the development control order to which the compliance cost notice relates is $750.
cl 281C: Ins 2010 (759), Sch 1 [65]. Subst 2013 (79), Sch 1 [3]. Am 2021 (624), sec 3(2)–(4).
282   Planning Secretary may certify certain documents
(cf clause 113 of EP&A Regulation 1994)
The Planning Secretary is a prescribed officer for the certification of documents under section 10.8(1) of the Act.
cl 282: Am 2018 (66), Sch 2 [22].
283   (Repealed)
cl 283: Am 2005 (391), Sch 1 [5]. Rep 2014 No 79, Sch 6.
283A   Offences against this Regulation
(1)  In this clause—
offence provision means a provision of this Regulation that is prescribed in Schedule 5 as a penalty notice offence in relation to an offence under this clause.
(2)  A person who contravenes an offence provision is guilty of an offence.
Maximum penalty—$110,000.
cl 283A: Ins 2018 (66), Sch 2 [16].
284   (Repealed)
cl 284: Am 2002 No 134, Sch 1.2 [27] [28]; 2009 (39), Sch 1 [15]; 2011 (510), Sch 2 [60]; 2015 No 15, Sch 3.26 [10]; 2015 (424), Sch 1 [8]–[11]; 2017 (491), Sch 1 [9] [10]; 2018 (66), Sch 2 [17] [22]; 2018 (499), Sch 1 [6]; 2020 (312), Sch 1[81]; 2021 (171), Sch 1[3]. Rep 2021 (689), Sch 3[3].
285   Enforcement of orders by cessation of utilities
(1)  For the purposes of clause 35(1)(b) of Schedule 5 to the Act, backpackers’ accommodation and boarding houses are prescribed.
(2)  For the purposes of clause 35(10) of Schedule 5 to the Act, the making of utilities orders for premises used as boarding houses is authorised.
(3)  In this clause, backpackers’ accommodation and boarding house have the same meaning as they have in the Standard Instrument.
cl 285: Rep 2002 No 134, Sch 1.2 [29]. Ins 2015 (424), Sch 1 [12]. Am 2016 (303), Sch 1 [3]; 2018 (66), Sch 2 [22].
285A   Modification of Part 8.3 of the Protection of the Environment Operations Act 1997
For the purposes of section 9.56(2A) of the Act, Part 8.3 (Court orders in connection with offences) of the Protection of the Environment Operations Act 1997 applies subject to the following modifications—
(a)  references in that Part to preventing, controlling, abating or mitigating any harm to the environment caused by the commission of the offence are taken to include a reference to reversing or rectifying any unlawful development or activity related to the commission of the offence,
(b)  the terms environment and public authority, when used in that Part, have the same meaning as they have in the Environmental Planning and Assessment Act 1979,
(c)  references in that Part to a “regulatory authority” or “the EPA” are to be read as references to a “public authority”,
(d)  the reference to the Environment Trust established under the Environmental Trust Act 1998 in section 250(1)(e) is to be disregarded,
(e)  the maximum penalty for an offence under section 251 of failing to comply with an order is—
(i)  in the case of a corporation—“$50,000”, and
(ii)  in the case of an individual—“$10,000”.
cl 285A: Ins 2015 (424), Sch 1 [12]. Am 2018 (66), Sch 2 [22].
285B   Provision of false or misleading information in connection with a planning matter
(1)  The matters specified in this clause are declared to be the provision of information in connection with a planning matter for the purposes of section 10.6 of the Act.
(2)  The provision of information in response to a requirement imposed by any of the following conditions (except a condition imposed under section 9.40 of the Act)—
(a)  a condition of development consent,
(b)  a condition of an approval to carry out a project that is a transitional Part 3A project (as defined in clause 2 of Schedule 2 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017),
(c)  a condition of an approval to carry out State significant infrastructure under Division 5.2 of the Act.
(3)  The provision of information in or for the purposes of a submission in response to the public exhibition of any of the following documents—
(a)  a draft strategic plan,
(b)  a planning proposal,
(c)  an environmental impact statement,
(d)  a development application, an application for approval to carry out State significant infrastructure or any request or application to modify or amend an approval or development consent,
(e)  any other plan, policy, strategy or document publicly exhibited for a planning purpose by the Department or a local council.
cl 285B: Ins 2015 (424), Sch 1 [13]. Am 2018 (66), Sch 2 [22]. Subst 2018 (755), Sch 1 [1].
286   Repeal, savings and transitional
(cf clause 116 of EP&A Regulation 1994)
(1)  The Environmental Planning and Assessment Regulation 1994 is repealed.
(2)  Anything begun under a provision of the Environmental Planning and Assessment Regulation 1994 before the repeal of that Regulation may be continued and completed under that Regulation as if that Regulation had not been repealed.
(3)  Subject to subclause (2), anything done under a provision of the Environmental Planning and Assessment Regulation 1994 for which there is a corresponding provision in this Regulation (including anything arising under subclause (2)) is taken to have been done under the corresponding provision of this Regulation.
(4)  Any instrument (including a schedule attached to a building approval or to a fire safety order) in force under the Environmental Planning and Assessment Regulation 1994 immediately before its repeal is taken to have been issued under this Regulation, and may be amended or revoked accordingly.
cl 286: Am 19.7.2002.
286A   Savings and transitional provisions: staged introduction of scheme
(1)  The amendments to this Regulation made by the Environmental Planning and Assessment Amendment (Building Sustainability Index: BASIX) Regulation 2004 do not apply to—
(a)  a development application, or application for a complying development certificate, that has been made before 1 July 2004, or
(b)  a development application, or application for a complying development certificate that is made on or after 1 July 2004, but before 1 January 2005, in relation to a building to be constructed—
(i)  pursuant to a building agreement entered into before 1 July 2004, or
(ii)  pursuant to a building agreement entered into on or after 1 July 2004 as a consequence of an offer made, or deposit paid, before 1 July 2004, or
(c)  a development consent or complying development certificate arising from an application referred to in paragraph (a) or (b), or
(d)  an application for a construction certificate or occupation certificate that is made in relation to development carried out under the authority of a development consent or complying development certificate arising from an application referred to in paragraph (a) or (b).
(2)  The amendments to this Regulation made by the regulation referred to in subclause (1) do not apply, in relation to land outside the initial BASIX area, to—
(a)  a development application, or application for a complying development certificate, that has been made before 1 July 2005, or
(b)  a development consent or complying development certificate arising from an application referred to in paragraph (a), or
(c)  an application for a construction certificate or occupation certificate that is made in relation to development carried out under the authority of a development consent or complying development certificate arising from an application referred to in paragraph (a).
(3)  The amendments to this Regulation made by the Environmental Planning and Assessment Further Amendment (Building Sustainability Index: BASIX) Regulation 2005 do not apply to—
(a)  a development application, or application for a complying development certificate, that has been made before 1 October 2005, or
(b)  a development consent or complying development certificate arising from an application referred to in paragraph (a), or
(c)  an application for a construction certificate or occupation certificate that is made in relation to development carried out under the authority of a development consent or complying development certificate arising from an application referred to in paragraph (a).
(4)  The amendments to this Regulation made by the Environmental Planning and Assessment Further Amendment (Building Sustainability Index: BASIX) Regulation 2006 do not apply to—
(a)  a development application, or application for a complying development certificate, that has been made before 1 October 2006, or
(b)  a development consent or complying development certificate arising from an application referred to in paragraph (a), or
(c)  an application for a construction certificate or occupation certificate that is made in relation to development carried out under the authority of a development consent or complying development certificate arising from an application referred to in paragraph (a).
cl 286A: Ins 25.6.2004. Am 2005 (306), cl 3; 2005 (599), Sch 1 [20]; 2006 (600), Sch 1 [22].
286AA   Savings and transitional provision: introduction of BASIX completion receipt
The amendments to this Regulation made by the Environmental Planning and Assessment Amendment (Building Sustainability Index: BASIX) Regulation 2006 apply only in respect of the issuing of a final occupation certificate for a BASIX affected building, or for part of such a building, on or after 1 July 2006.
Note—
An existing building may become a BASIX affected building by a change of building use. Under the Act, a final occupation certificate can be issued to authorise a person to commence a new use of an existing building resulting from a change of building use.
cl 286AA: Ins 2006 (362), Sch 1 [2].
286B   Savings and transitional provision: changes to development contributions scheme
Section 93E(2) of the Act, as inserted by the Environmental Planning and Assessment Amendment (Development Contributions) Act 2005, extends to money paid under Division 6 of Part 4 of the Act before its substitution by that Act.
cl 286B: Ins 2005 (339), Sch 1 [18].
286C   (Repealed)
cl 286C: Ins 2005 (783), Sch 1. Rep 2017 (440), Sch 1 [14].
286D   Savings and transitional provisions: existing uses
(1)  Subject to subclause (2), the amendments to this Regulation made by the amending Regulation extend to and in respect of an existing use that was an existing use before the commencement of the amending Regulation (including a use that was taken to be an existing use for the purposes of the Act).
Note—
Before the commencement of the Environmental Planning and Assessment Amendment (Existing Uses) Regulation 2006 clause 41 of this Regulation enabled an existing use to be changed to, among other uses, a use that would otherwise be prohibited under the Act and provided that a use to which an existing use was changed was itself taken to be an existing use.
(2)  The amendments to this Regulation made by the amending Regulation do not affect any—
(a)  application for development consent in respect of an existing use—
(i)  made before the commencement of the amending Regulation, or
(ii)  made on or after the commencement of the amending Regulation that relates to—
(A)  the use of a building, work or land if that application arises from, or is consequential to, a development consent for subdivision that was granted before the commencement of the amending Regulation (or after that commencement by virtue of the operation of this clause), or
(B)  the internal fitout, landscaping or other related development of a building, work or land if that application arises from, or is consequential to, a development consent relating to the building, work or land that was granted before the commencement of the amending Regulation (or after that commencement by virtue of the operation of this clause), or
(b)  a development consent or complying development certificate arising from an application referred to in paragraph (a), or
(c)  an application for a construction certificate or occupation certificate that is made in relation to a development carried out under the authority of a development consent or complying development certificate arising from an application referred to in paragraph (a).
(3)  In this clause, amending Regulation means the Environmental Planning and Assessment Amendment (Existing Uses) Regulation 2006.
cl 286D: Ins 2006 (131), Sch 1 [5]; Am 2007 (48), Sch 1 [3].
287   Special provisions relating to ski resort areas
Schedule 6 has effect.
cl 287: Ins 6.9.2002.
288   Special provision relating to Sydney Opera House
(1)  To the extent that any development that is to be carried out at the Sydney Opera House is development to which Part 4 of the Act applies, the provisions of the Management Plan for the Sydney Opera House are prescribed for the purposes of section 4.15(1)(a)(iv) of the Act as a matter that must be taken into consideration by the consent authority in determining a development application in respect of that development.
(2)  To the extent that any development that is to be carried out at the Sydney Opera House is a project to which Part 3A of the Act applies, the Planning Secretary’s report under section 75I of the Act in relation to the project must include—
(a)  the provisions of the Management Plan for the Sydney Opera House that are relevant to the carrying out of the development, and
(b)  advice as to the extent to which the project is consistent with the objectives of that Management Plan.
Note—
Section 75J(2) of the Act requires the Minister to consider the Planning Secretary’s report (and the reports, advice and recommendations contained in it) when deciding whether or not to approve the carrying out of a project.
(3)  In this clause—
Management Plan for the Sydney Opera House means the management plan that relates to Sydney Opera House that has been approved by the Minister administering the Sydney Opera House Trust Act 1961 and published in the Gazette.
Sydney Opera House means the land identified on Map 1 to Schedule 3 to State Environmental Planning Policy (Major Development) 2005.
cl 288: Ins 2005 (450), Sch 1. Am 2005 (831), Sch 1 [4]; 2009 No 106, Sch 2.13 [2]. Subst 2014 (843), cl 3. Am 2018 (66), Sch 2 [22]; 2018 No 68, Sch 2.12 [2].
288A   Special provision for major events
(1)  This clause applies to the XI Federation of International Polo World Polo Championship Sydney 2017, which is declared to be a major event under the Major Events Act 2009.
Note—
See clause 6 of the Major Events Regulation 2017, which declares the XI Federation of International Polo World Polo Championship Sydney 2017 to be a major event and specifies that the declaration is in force from 9 October 2017 until 5 November 2017.
(2)  Development for the purposes of a major event to which this clause applies during the period for which the declaration of the major event is in force—
(a)  is not development for the purposes of the definition of development in section 4(1) of the Act, and
(b)  is not an activity for the purposes of paragraph (k) of the definition of activity in section 110(1) of the Act.
(3)  Subclause (2) extends to car parking required by, or associated with, the major event referred to in subclause (1) on the contingency parking site.
(4)  In this clause, contingency parking site means the land shown edged heavy black on the XI FIP World Polo Championship Contingency Parking Site Map.
(5)  A reference in this clause to a named map is a reference to a map of that name in force on the commencement of this clause and held in the Department of Planning and Environment.
cl 288A: Ins 2010 (186), cl 3. Subst 2017 (538), cl 3.
289   Miscellaneous savings and transitional provisions: 2005 Amending Act
(1)  In this clause and clause 289A—
(2) Adoption of model provisions An environmental planning instrument made after the commencement of the repeal of section 33 of the Act by Schedule 2 to the 2005 Amending Act (but initiated before that commencement) may, despite the repeal of that section, adopt model provisions made under that section as in force immediately before its repeal. Accordingly, those model provisions continue in force for the purposes of any environmental planning instrument that adopts them and clause 93(2) of Schedule 6 to the Act extends to those provisions.
(3)  For the purposes of subclause (2), an environmental planning instrument is taken to have been initiated if the relevant council (or the Planning Secretary, as the case requires) has resolved to make the instrument.
(4) Pending development control plans Clause 94(1) of Schedule 6 to the Act extends to a development control plan that was approved before 30 September 2005 but did not take effect until after that date.
(5), (5A)    (Repealed)
(6) Existing section 117(2) directions continue to apply to draft plans Despite clause 96(2) of Schedule 6 to the Act, a direction given under section 117(2) of the Act before the commencement of Schedule 2 to the 2005 Amending Act continues in force in relation to a draft local environmental plan only if the draft plan—
(a)  is submitted to the Planning Secretary under section 68(4) of the Act before 31 December 2006, or
(b)  is the subject of a report under section 69 of the Act that is furnished before that date.
(7) Master plans under epis made before 31 December 2005 A reference in clause 95(2) of Schedule 6 to the Act to a provision of an environmental planning instrument that requires, before the grant of development consent, a master plan for the land concerned extends to a provision of that kind in an environmental planning instrument that is made before 31 December 2005.
cl 289: Ins 2005 (600), Sch 1 [13]. Am 2005 (678), Sch 1; 2005 (789), Sch 1 [1] [2]; 2006 (24), Sch 1 [1].
289A   Transitional provisions relating to development control plans
(1)  This clause applies to a development control plan—
(a)  that was made before 30 September 2005 and in force immediately before that date, or
(b)  that was approved before 30 September 2005 (but did not take effect until after that date), or
(c)  that is approved after 30 September 2005 (regardless of when it takes effect).
(2)  Section 74C of the Act (as inserted by the 2005 Amending Act) does not render invalid any provision of a development control plan to which this clause applies until—
(a)  the principal local environmental planning instrument applying to the land to which the development control plan applies adopts the provisions of a standard instrument as referred to in section 33A of the Act, or
(b)  in the case of a provision that is not inconsistent with, and capable of operating in conjunction with, the principal local environmental planning instrument—6 months after that day.
(3)  This clause has effect despite clause 94(2) of Schedule 6 to the Act.
cl 289A: Ins 2005 (789), Sch 1 [3]. Am 2006 (214), cl 2; 2010 (759), Sch 1 [66].
290   Savings and transitional provision: references to “comprehensive development applications”
(1)  A reference in an environmental planning instrument to a comprehensive development application (as referred to in clause 92A immediately before the repeal of that clause by the Environmental Planning and Assessment Amendment (Planning Instruments and Development Consents) Regulation 2005) is taken to be a reference to a staged development application within the meaning of the Act.
(2)  Section 83C(1) of the Act does not apply to any provision of an environmental planning instrument (as in force as at the commencement of this clause) that requires the making of a comprehensive development application that is taken to be a staged development application.
cl 290: Ins 2005 (600), Sch 1 [13].
291   Savings and transitional provisions
(1)  Clause 130(2A) applies to a complying development certificate only if the application for the certificate was made after 1 March 2008.
(2)  Clause 144A applies to a construction certificate only if the application for the certificate was made after 1 March 2008.
(3)  Clause 153A applies to an occupation certificate only if the application for the certificate was made after 1 March 2008 and the certificate is for a building resulting from building work in respect of which a compliance certificate under clause 130(2A) or 144A is required.
(4)  In relation to building work or a building to which clause 130(2A), 144A or 153A does not apply immediately before 1 March 2011 because of the operation of clause 130(2B) or 144A(2), subclauses (1)–(3) have effect as if a reference to 1 March 2008 were a reference to 1 March 2011.</