Environmental Planning and Assessment Regulation 2021



Part 1 Preliminary
1   Name of Regulation
This Regulation is the Environmental Planning and Assessment Regulation 2021.
2   Commencement
(1)  This Regulation commences on 1 March 2022, except as provided by subsections (2) and (3), and is required to be published on the NSW legislation website.
Note—
This Regulation replaces the Environmental Planning and Assessment Regulation 2000, which is repealed on 1 March 2022 by the Subordinate Legislation Act 1989.
(2)  Schedule 8 commences on 1 July 2022.
(3)  Schedule 9 commences on 1 January 2022, immediately before the commencement of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.
s 2: Am 2022 (40), Sch 1[1].
3   Definitions
(1)  The Dictionary in Schedule 7 defines words used in this Regulation.
Note—
The Environmental Planning and Assessment Act 1979 and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.
(2)  Words used in this Regulation have the same meaning as in the Standard Instrument, unless otherwise defined in this Regulation.
(3)  For the purposes of the Act, section 1.4(1), definition of public authority, paragraph (g), the persons specified in Schedule 1 of this Regulation are prescribed.
(4)  For the purposes of the Act, section 1.4(1), definition of work, the deposit of material on a beach or land in a beach fluctuation zone, within the meaning of the Coastal Management Act 2016, is specified to be a work.
(5)  For the purposes of the Act, section 1.5, definition of development, the demolition of a temporary structure is not development.
(6)  In this Regulation, a reference to the consent authority’s website means—
(a)  if the consent authority is a council, a local planning panel or a Sydney district or regional planning panel—the website of the council or councils of the area in which the development will be carried out, or
(b)  if the consent authority is the Minister, the Independent Planning Commission or a public authority—the NSW planning portal.
4   Building Code of Australia
(1)  For the purposes of the Act, section 1.4(1), definition of Building Code of Australia, Volumes 1 and 2 of the National Construction Code, referred to as the Building Code of Australia, published by the Australian Building Codes Board, as in force from time to time, are prescribed.
(2)  All amendments and variations of the Building Code of Australia that are from time to time made or approved by the Australian Building Codes Board in relation to New South Wales are prescribed.
(3)  An amendment or variation comes into effect on the date specified by the Australian Building Codes Board for New South Wales.
(4)  The Building Code of Australia is varied in relation to small live music or arts venues as follows—
(a)  Schedule 3 of Volume 1 applies as if 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)  Schedule 3 of Volume 1 applies as if the following definition were inserted after the definition of Sitework
  
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 storeys—
(a)  in which live music or arts are provided to the public, and
(b)  that has a floor area of no more than 300 square metres.
(c)  clause A6.6 of Volume 1 applies as if the following were inserted at the end of the definition of Class 6
  
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 1 of the Building Code of Australia.
5   Abbreviations for building materials
The abbreviations for building materials specified in the following Table must be used in a development application or application for a complying development certificate—
Walls
Code
Roof
Code
Floor
Code
Frame
Code
Brick (double)
11
Tiles
10
Concrete or slate
20
Timber
40
Brick (veneer)
12
Concrete or slate
20
Timber
40
Steel
60
Concrete or stone
20
Fibre cement
30
Other
80
Aluminium
70
Fibre cement
30
Steel
60
Not specified
90
Other
80
Timber
40
Aluminium
70
  
Not specified
90
Curtain glass
50
Other
80
    
Steel
60
Not specified
90
    
Aluminium
70
      
Other
80
      
Not specified
90
      
6   Determination of BASIX development
(1)  In determining if an alteration of a BASIX building is BASIX development, a consent authority or registered certifier must use a genuine estimate of the construction costs of the work, including a part of the work that is BASIX excluded development.
(2)  The estimate must be the estimate indicated in the development application or application for a complying development certificate, unless the consent authority or registered certifier is not satisfied that the estimated cost is genuine or accurate.
7   Designated development—the Act, s 4.10
(1)  Development described in Schedule 3, Part 2 is declared to be designated development unless it is not designated development under Schedule 3, Part 3.
(2)  If Schedule 3 is amended after a development application is made—
(a)  Schedule 3, as in force when the development application was made, continues to apply to the development application, and
(b)  the development application is not affected by the amendment.
(3)  A reference in subsection (2) to Schedule 3 includes a reference to the Environmental Planning and Assessment Regulation 2000, Schedule 3.
Part 2 Planning instruments
Division 1 Local environmental plans
8   Concurrence of public authorities for proposed reservation of land—the Act, s 3.37(e)
(1)  A planning proposal for a proposed local environmental plan must not contain a proposed reservation of land for a purpose referred to in the Act, section 3.14(1)(c) without the concurrence of the relevant authority in relation to the reservation of the land for that purpose.
(2)  In this section—
relevant authority means an authority that will be specified in the proposed local environmental plan as the relevant authority to acquire the land for the purposes of the Act, section 3.15.
9   Notification of refusal to prepare planning proposal
If a council refuses a request made to the council by a person for the preparation of a planning proposal under the Act, section 3.33, the council must, as soon as practicable, give the person written notice of the refusal.
10   Fee payable for costs and expenses of studies by planning proposal authority—the Act, s 3.32(3)
(1)  A planning proposal authority may enter into an agreement or arrangement with a person who requests the preparation of a planning proposal 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 amount payable to the planning proposal authority for the costs and expenses is—
(a)  if the authority is a council—the amount set out in, or calculated in accordance with, the agreement or arrangement, or
(b)  otherwise—the 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.
(3)  Despite subsection (2)(b), the planning proposal authority and a person who requests the preparation of a planning proposal may agree on a greater amount in a particular case.
(4)  An amount payable by a person under this section is payable at the time specified in a written notice to the person from the planning proposal authority.
(5)  If the planning proposal authority is the Independent Planning Commission or a Sydney district or regional planning panel, the Planning Secretary may exercise the relevant planning authority’s functions under this section.
11   Planning proposal authority for Lord Howe Island
For the purposes of the Act, section 3.32(1)(b), the Lord Howe Island Board under the Lord Howe Island Act 1953 is prescribed for a proposed instrument that applies to Lord Howe Island.
Division 2 Development control plans—the Act, s 3.45
12   Form of development control plan
(1)  A development control plan must—
(a)  be written, and
(b)  describe the land to which it applies, and
(c)  identify the local environmental plan or deemed environmental planning instrument that applies to the land.
(2)  A development control plan may include supporting maps, plans, diagrams, illustrations and other materials.
13   Public exhibition of draft development control plans
After a draft development control plan is prepared, the council must publish the following on its website—
(a)  the draft development control plan,
(b)  the 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.
14   Approval of development control plans
(1)  After considering any submissions about the draft development control plan that have been duly made, the council may—
(a)  approve the plan in the form in which it was publicly exhibited, or
(b)  approve the plan with any alterations the council considers appropriate, or
(c)  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 contain the council’s reasons for the decision.
(4)  A development control plan comes into effect on—
(a)  the day on which the notice of the council’s decision to approve the plan is published on its website, or
(b)  a later day specified in the notice.
15   Approval of development control plans for residential apartment development
(1)  The council must not approve a draft development control plan containing provisions that apply to residential apartment development unless the council—
(a)  has referred the provisions that relate to design quality to a design review panel constituted for—
(i)  the council’s local government area, or
(ii)  2 or more local government areas that include the council’s area, and
(b)  has considered the following—
(i)  the comments made by the design review panel about the provisions,
(ii)  the matters specified in Parts 1 and 2 of the Apartment Design Guide.
(2)  Subsections (1)(a) and (b)(i) apply only if a design review panel has been constituted for the council’s local governmental area.
(3)  This section extends to—
(a)  a draft amending development control plan, and
(b)  a draft development control plan that the council began preparing before a design review panel was constituted.
16   Amendment or repeal of development control plan
(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 a decision to repeal the plan on its website.
(3)  At least 14 days before repealing a development control plan under subsection (2)(b), the council must publish notice of its intention to repeal the plan, and the reasons for the repeal, on its website.
(4)  The repeal of a development control plan under subsection (2)(b) takes effect on the day on which the notice under subsection (2)(b) is published on the council’s website.
17   Amendment or revocation of development control plan at Minister’s direction
(1)  This section applies if, under the Act, section 3.46, the Minister directs a council—
(a)  to amend a development control plan and the direction specifies that the amending plan is not required to be exhibited, or
(b)  to revoke a development control plan.
(2)  The council may amend or revoke the development control plan by making a subsequent development control plan.
(3)  The council must, within 14 days after making a subsequent development control plan, publish notice of the making of the plan on its website.
(4)  The notice must specify the following—
(a)  the day on which the council made the plan,
(b)  the day on which the plan takes effect under subsection (5),
(c)  the name of the plan being amended or revoked,
(d)  for an amendment—that the amendment is in accordance with a direction under the Act, section 3.46.
(5)  The subsequent development control plan takes effect on the earlier of—
(a)  the day on which the notice is given, or
(b)  14 days after the council makes the development control plan.
(6)  Sections 13–16 do not apply to a development control plan made under this section.
18   Draft development control plans submitted by owners
(1)  This section applies if an environmental planning instrument requires or permits a development control plan to be prepared and submitted to the relevant planning authority, as referred to in the Act, section 3.44.
(2)  The relevant planning authority may request information from the owners of the land to which the development control plan relates that—
(a)  the planning authority considers necessary for the purposes of making the development control plan, and
(b)  relates to a relevant matter referred to in an environmental planning instrument.
(3)  For the purposes of the Act, section 3.44(6), the 60-day period is extended by the number of days between—
(a)  the day on which the relevant planning authority requests additional information from the owners under subsection (2), and
(b)  the day on which the owners give or refuse to give the information to the relevant planning authority.
(4)  If the owners refuse to give the information to the relevant planning authority, the development control plan is taken not to have been submitted to the relevant planning authority.
19   Fees for draft development control plans prepared by owners
(1)  If a draft development control plan is prepared and submitted to the relevant planning authority by the owners of the land to which it applies, the owners must pay the authority an assessment fee determined by the authority.
(2)  If a draft development control plan is prepared by the relevant planning authority at the request of the owners, the owners must pay the authority a preparation fee determined by the authority.
(3)  The assessment fee or preparation fee must not exceed the reasonable cost to the relevant planning authority of—
(a)  assessing or preparing the draft development control plan, and
(b)  carrying out associated studies, and
(c)  publicly exhibiting the draft plan.
(4)  If there is more than 1 owner, the relevant planning authority must apportion the fee between the owners.
(5)  If the Minister makes a development control plan under the Act, section 3.44(5)(b), the council must pay to the Minister any assessment or preparation fee that was paid to the council in relation to the plan, if the Minister directs.
20   Publication of development control plans
(1)  A council must, within 28 days of making a development control plan, give a copy of the plan to the Planning Secretary.
(2)  For the purposes of the Act, section 3.45(4)(b), a council must publish a development control plan on its website, including any document, map, plan, diagram or other material referred to in the plan.
21   Development control plans made by Planning Secretary
This Part applies to a development control plan prepared by the Planning Secretary as the relevant planning authority under the Act, section 3.43, 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 council’s website is taken to be a reference to the NSW planning portal,
(c)  a reference to a local environmental plan or deemed environmental planning instrument is taken to be a reference to a State environmental planning policy.
Part 3 Development applications
Division 1 Making development applications—the Act, ss 4.12 and 4.64
22   Application of Part
This Part applies to all development applications.
Note—
This Part does not apply to applications for complying development certificates. See the Act, section 1.4, definition of development application.
23   Persons who may make development applications
(1)  A development application may be made by—
(a)  the owner of the land to which the development application relates, or
(b)  another person, with the consent of the owner of the land.
(2)  The consent of the owner of the land is not required for a development application made by a public authority or for public notification development if the applicant complies with subsections (3) and (4).
(3)  The applicant must give notice of the application—
(a)  to the owner of the land before the application is made, or
(b)  by publishing, no later than 14 days after the application is made, a notice in a newspaper circulating in the area in which the development will be carried out.
(4)  If the applicant gives notice under subsection (3)(b), the applicant must also, no later than 14 days after the application is made—
(a)  if the applicant is a public authority—publish the notice on the public authority’s website, or
(b)  for public notification development—arrange for the consent authority to publish the notice on the NSW planning portal.
(5)  A development application 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.
(6)  A lessee of Crown land may make a development application relating to Crown land only with the consent of the Crown.
(7)  The consent of the Crown is not required under subsection (6) for a development application for—
(a)  public notification development, or
(b)  other State significant development if the development application is made by a public authority.
(8)  In this section—
public authority includes an irrigation corporation, within the meaning of the Water Management Act 2000, that the Minister administering that Act has, by written order, declared to have the status of a public authority for the purposes of this section in relation to development of a kind specified in the order.
24   Content of development applications
(1)  A development application must—
(a)  be in the approved form, and
(b)  contain all the information and documents required by—
(i)  the approved form, and
(ii)  the Act or this Regulation, and
Example—
The Act, section 4.12(8) requires a development application for State significant development or designated development to be accompanied by an environmental impact statement.
(c)  be submitted on the NSW planning portal.
(2)  The fees payable for a development application are specified in Schedule 4 and determined in accordance with Part 13, including additional fees for integrated development, development requiring concurrence and designated development.
(3)  A development application is lodged
(a)  on the day on which the fees payable for the development application under this Regulation are paid, or
(b)  if the applicant is notified under Part 13 that no fee is required—on the day the applicant submitted the application on the NSW planning portal.
(4)  The applicant must be notified through the NSW planning portal that the development application has been lodged.
(5)  If the council is not the consent authority, the consent authority must give the council a copy of—
(a)  the development application, and
(b)  for designated development—the environmental impact statement.
25   Information about concurrence or approvals
A development application must contain the following information—
(a)  a list of the authorities —
(i)  from which concurrence must be obtained before the development may lawfully be carried out, and
(ii)  from which concurrence would have been required but for the Act, section 4.13(2A) or 4.41,
(b)  a list of the approvals of the kind referred to in the Act, section 4.46(1) that must be obtained before the development may lawfully be carried out.
26   Information about community housing, boarding houses, co-living housing
(1)  A development application for development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 2, Part 2, Division 1 or 2 must specify the name of the registered community housing provider who will be managing the boarding house.
(2)  A development application for development for the purposes of boarding houses or co-living housing must be accompanied by a copy of the plan of management.
27   BASIX development
(1)  A development application for BASIX development must be accompanied by—
(a)  a relevant BASIX certificate for the development issued no earlier than 3 months before the day on which the development application is lodged, and
(b)  the other matters required by the BASIX certificate.
(2)  If the development involves the alteration of a BASIX building that contains more than 1 dwelling, a separate BASIX certificate is required for each dwelling.
28   Development applications relating to Biodiversity Conservation Act 2016
(1)  A development application for biodiversity compliant development must contain the reason the development is biodiversity compliant development.
(2)  A development application that is accompanied by a biodiversity development assessment report under the Biodiversity Conservation Act 2016 must contain the biodiversity credits information.
(3)  A development application relating to land that is subject to a private land conservation agreement under the Biodiversity Conservation Act 2016 must contain a description of the kind of agreement and the area to which it applies.
(4)  In this section—
biodiversity compliant development means—
(a)  development to be carried out on biodiversity certified land under the Biodiversity Conservation Act 2016, or
(b)  development to which the biodiversity certification conferred by the Threatened Species Conservation Act 1995, Schedule 7, Part 7 applies, or
(c)  development for which development consent is required under a biodiversity certified EPI, within the meaning of the Threatened Species Conservation Act 1995, Schedule 7, Part 8.
Note—
The Biodiversity Conservation (Savings and Transitional) Regulation 2017, clause 43 provides that the repeal of the Threatened Species Conservation Act 1995 does not affect the operation of that Act, Schedule 7, Part 7 or 8.
biodiversity credits information, in relation to a development application, means the reasonable steps taken to obtain like-for-like biodiversity credits required to be retired under the biodiversity development assessment report, if different biodiversity credits are proposed to be used as offsets in accordance with the variation rules under the Biodiversity Conservation Act 2016.
29   Residential apartment development
(1)  A development application that relates to residential apartment development must be accompanied by a statement by a qualified designer.
(2)  The statement must—
(a)  verify that the qualified designer designed, or directed the design of, the development, and
(b)  explain how the development addresses—
(i)  the design quality principles, and
(ii)  the objectives in Parts 3 and 4 of the Apartment Design Guide.
(3)  If the development application is accompanied by a BASIX certificate for a building, the design quality principles do not need to be addressed to the extent to which they aim—
(a)  to reduce consumption of mains-supplied potable water or greenhouse gas emissions in the use of—
(i)  the building, or
(ii)  the land on which the building is located, or
(b)  to improve the thermal performance of the building.
(4)  The additional fee payable for a development application for residential apartment development that is referred to the relevant design review panel for advice is specified in Schedule 4.
30   Mining or petroleum development
(1)  This section applies to a development application that relates to mining or petroleum development on land—
(a)  shown on the Strategic Agricultural Land Map, or
(b)  subject to a site verification certificate.
(2)  The development application must be accompanied by—
(a)  for development on land shown on the Strategic Agricultural Land Map as critical industry cluster land—a current gateway certificate that applies to the development, or
(b)  for development on other land—
(i)  a current gateway certificate that applies to the development, or
(ii)  a site verification certificate that certifies that the land on which the development will be carried out is not biophysical strategic agricultural land.
31   Other documents required for certain development applications
(1)  A development application that relates to development for which consent under the Wilderness Act 1987 is required must be accompanied by a copy of the consent.
(2)  A development application that relates to development for which a site compatibility certificate is required by a SEPP must be accompanied by the site compatibility certificate.
(3)  A development application made under the Act, section 4.12(3) must be accompanied by the matters that would be required under the Local Government Act 1993, section 81 if approval were sought under that Act.
(4)  A development application that relates to development on land in an Activation Precinct under State Environmental Planning Policy (Precincts—Regional) 2021, Chapter 3 must be accompanied by a current Activation Precinct certificate.
(5)  Subsection (4) does not apply to a development application—
(a)  made by a public authority, other than the Development Corporation within the meaning of State Environmental Planning Policy (Precincts—Regional) 2021, Chapter 3, or
(b)  that relates to development on land in the Snowy Mountains Activation Precinct under that Chapter.
s 31: Am 2022 (40), Sch 1[2]; 2022 (333), sec 3(1).
32   Extract of development application for erection of building
(1)  If a development application relates to the erection of a building, an extract of the application must be published on the NSW planning portal.
(2)  The extract must—
(a)  identify the applicant and the land to which the application relates, and
(b)  contain a plan of the building that indicates the proposed height and external configuration of the site, if relevant for the development.
(3)  This section does not apply to the following—
(a)  designated development,
(b)  nominated integrated development,
(c)  threatened species development,
(d)  Class 1 aquaculture development,
(e)  State significant development.
33   Concept development applications
(1)  The information about the various stages of development, required by this Regulation to be included in a concept development application, may be deferred to a subsequent development application, with the approval of the consent authority.
(2)  Section 29 applies in relation to a concept development application only if the application sets out detailed proposals for the development or part of the development.
34   Urban development in Sydney region growth centres
(1)  For the purposes of State Environmental Planning Policy (Precincts—Central River City) 2021, Chapter 3 or State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 3, the Minister may, by order published in the Gazette, declare a precinct or part of a precinct to be released for urban development.
(2)  The Minister must arrange for a development code to be prepared that contains guidelines that, together with the relevant growth centre structure plan, will assist environmental planning in precincts released for urban development.
(3)  The Minister must consult—
(a)  relevant councils about the making of declarations, and
(b)  relevant councils and the public authorities the Minister considers appropriate about the preparation of a development code.
s 34: Am 2022 (40), Sch 1[3]–[5].
35   Additional requirements for development applications in certain areas of Sydney
(1)  A person must not apply to a consent authority for development consent to carry out development on land zoned “Employment” or “Urban” under Sydney Regional Environmental Plan No 30—St Marys, other than development referred to in that Plan, clause 20(3) or (4) or 48, unless the Minister has declared the land, or land that includes the land, to be a release area in accordance with that Plan, clause 7.
(2)  A person must not apply to a consent authority for development consent to carry out development on the following land unless the application is accompanied by an assessment of the consistency of the development with the relevant plan—
(a)  land in the North Wilton Precinct under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 3,
(b)  land in the South East Wilton Precinct under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 3,
(c)  declared land,
(d)  land in the Mamre Road Precinct, identified as Precinct 12 on the Land Application Map under State Environmental Planning Policy (Industry and Employment) 2021, Chapter 2,
(e)  land in the Western Sydney Aerotropolis under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 4,
(f)  land in the Glenfield Precinct as identified on the Locality and Site Identification Map under Campbelltown Local Environmental Plan 2015,
(g)  land in the Rhodes Precinct under Canada Bay Local Environmental Plan 2013.
(3)  Subsection (2)(c) applies to the following development, other than development for the purposes of a single residential dwelling, on declared land only—
(a)  development with a capital investment value of more than $500,000,
(b)  development that relates to an area of land of more than 2 hectares,
(c)  development that is a subdivision of land that creates 2 or more lots.
(4)  In this section—
declared land means land—
(a)  in a precinct of a growth centre declared by the Minister under section 34 to be released for urban development, and
(b)  to which the Growth Centres SEPP, clause 17 applies.
relevant plan means the following—
(a)  for land in the North Wilton Precinct—the North Wilton structure plans under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Appendix 8,
(b)  for land in the South East Wilton Precinct—the South East Wilton structure plans under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Appendix 7,
(c)  for declared land—the growth centre structure plan under State Environmental Planning Policy (Precincts—Central River City) 2021, Chapter 3 or State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 3 that applies to the land,
(d)  for land in the Mamre Road Precinct—the Mamre Road Precinct Structure Plan dated June 2020 and published on the NSW planning portal,
(e)  for land in the Western Sydney Aerotropolis—the Western Sydney Aerotropolis Plan and any precinct plan that applies to the land under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 4,
(f)  for land in the Glenfield Precinct—the Glenfield Place Strategy and the Glenfield Precinct Structure Plan published on the Department’s website and in force from time to time,
(g)  for land in the Rhodes Precinct—the Rhodes Place Strategy published on the Department’s website on 30 October 2021.
s 35: Am 2022 (40), Schs 1[6]–[12], 3[1].
35A   Additional requirements for development applications in Frenchs Forest Precinct
(1)  A person must not apply to a consent authority for development consent to carry out development on land in the Frenchs Forest Precinct unless the application is accompanied by an assessment of the consistency of the proposed development with the Frenchs Forest 2041 Place Strategy.
(2)  A person must not make a concept development application to a consent authority for development consent to carry out development on Site F unless the application is accompanied by a study about traffic and transport that—
(a)  is endorsed by Transport for NSW, and
(b)  sets out the transport infrastructure and capacity that will service Site F.
(3)  In this section—
Frenchs Forest 2041 Place Strategy means the Frenchs Forest 2041 Place Strategy published on the Department’s website from time to time.
Frenchs Forest Precinct has the same meaning as in Warringah Local Environmental Plan 2011, Part 8.
Site F has the same meaning as in Warringah Local Environmental Plan 2011, Part 8.
s 35A: Ins 2022 (40), Sch 3[2].
36   Consent authority may request additional information from applicant
(1)  A consent authority that receives a development application may request additional information about the development from the applicant.
(2)  A consent authority may not request additional information in relation to building work or subdivision work if the information is required to accompany an application for a construction certificate or subdivision works certificate.
(3)  A consent authority’s request must—
(a)  be made through the NSW planning portal, and
(b)  specify a reasonable period within which the additional information must be given to the consent authority, and
(c)  specify the number of days in the assessment period that have elapsed, and
(d)  inform the applicant that the assessment period ceases to run, in accordance with Part 4, Division 4, during the period between—
(i)  the request, and
(ii)  the day on which the applicant provides the additional information or notifies, or is taken to have notified, the consent authority that the information will not be provided.
(4)  The applicant may, using the NSW planning portal, notify the consent authority that the applicant will not provide the additional information.
(5)  The applicant is taken to have notified the consent authority that the applicant will not provide the additional information if the applicant has not provided the information by the end of—
(a)  the period specified under subsection (3)(b), or
(b)  a further period allowed by the consent authority.
(6)  In this section—
additional information, in relation to a development application, means information the consent authority considers necessary to properly consider the development application.
Division 2 Amendment, rejection and withdrawal of development applications—the Act, ss 4.12 and 4.64
37   Amendment of development application
(1)  An applicant may, at any time before a development application is determined, apply to the consent authority for an amendment to the development application.
(2)  The application must be made on the NSW planning portal.
(3)  If the application relates to State significant development—
(a)  the application must be in the approved form, and
(b)  the applicant must have regard to the State Significant Development Guidelines in preparing the application.
(4)  If the amendment relates to a BASIX certificate that accompanied the original development application only, the development application may instead be amended by submitting on the NSW planning portal—
(a)  a new BASIX certificate to replace the current BASIX certificate for the original development application, or
(b)  if a new document is required or a document that accompanied the original development application requires amendment—the new or amended document.
(5)  If the amendment will result in the development differing materially from the description contained in the BASIX certificate that accompanied the original development application, the application must be accompanied by a new BASIX certificate that takes account of the amendment.
(6)  If the amendment will result in a change to the development, the application must contain details of the change, including the name, number and date of any plans that have changed, to enable the consent authority to compare the development with the development originally proposed.
(7)  A requirement to use the NSW planning portal under this section does not apply if the development application is subject to proceedings in the Court.
s 37: Am 2022 (142), Sch 1[1].
38   Determination of application for amendment of development application
(1)  The consent authority may, through the NSW planning portal, approve or reject an application for an amendment to a development application submitted under section 37.
(2)  If the consent authority approves the amendment, the development application is taken to be lodged on the day on which the applicant applied for the amendment if the consent authority—
(a)  considers the amendment not to be minor, and
(b)  notifies the applicant, by the NSW planning portal, that the later day applies.
(3)  If the consent authority approves an amendment to a development application for integrated development or development requiring concurrence, the consent authority must, as soon as practicable after approving the amendment, give a copy of the amended development application to the approval body or concurrence authority by the NSW planning portal.
(4)  A requirement to use the NSW planning portal under this section does not apply if the development application is subject to proceedings in the Court.
39   Rejection of development applications
(1)  A consent authority may reject a development application within 14 days after receiving the application if—
(a)  the application is illegible or unclear about the development consent sought, or
(b)  the application does not contain the information and documents that are required by—
(i)  the approved form, or
(ii)  the Act or this Regulation, or
(c)  for an application for State significant development—the Planning Secretary considers the application incomplete for reasons given by written notice to the applicant, or
(d)  for an application for integrated development—the application does not identify all of the approvals required to be obtained, as referred to in the Act, section 4.46, before the development may be carried out, or
(e)  for an application required to be accompanied by a biodiversity development assessment report under the Biodiversity Conservation Act 2016—the application is not accompanied by a report, or
(f)  for an application required to be accompanied by a species impact statement under the Fisheries Management Act 1994, section 221ZW—the application is not accompanied by a statement.
(2)  For the purposes of the Act, a development application is taken never to have been made if—
(a)  the application is rejected by a consent authority under this section, and
(b)  the determination to reject the application is not changed following a review.
(3)  Immediately after rejecting a development application, the consent authority must notify, by the NSW planning portal—
(a)  the applicant of the reasons for the rejection, and
(b)  if the development application is for integrated development or development requiring concurrence—each relevant approval body or concurrence authority.
(4)  Subsection (3)(b) applies only if the consent authority has already notified the approval body under section 42 or the concurrence authority under section 50.
40   Withdrawal of development applications
(1)  An applicant may, through the NSW planning portal, withdraw a development application at any time before the application is determined.
(2)  An application that is withdrawn is taken never to have been made, except for the purposes of this Regulation, section 57(4) or the Act, Schedule 1.
(3)  Immediately after a development application for integrated development or development requiring concurrence is withdrawn, the consent authority must notify, through the NSW planning portal, each relevant approval body or concurrence authority.
(4)  Subsection (3) applies only if the consent authority has already notified the approval body under section 42 or the concurrence authority under section 50.
Division 3 Development applications for integrated development—the Act, ss 4.12, 4.47 and 4.64
41   Application of Division
(1)  This Division applies to a development application for integrated development.
(2)  This Division ceases to apply to a development application for integrated development if the development application is rejected or withdrawn.
42   Consent authority to seek general terms of approval
(1)  Within 14 days after a development application for integrated development is lodged, the consent authority must—
(a)  give a copy of the application and all accompanying documents to each approval body whose approval is required, and
(b)  give written notice to the approval body of—
(i)  the basis on which its approval is required, and
(ii)  the day on which the development application was lodged, and
(iii)  if known, when the application will be publicly exhibited for the purposes of the Act.
(2)  The consent authority is not required to comply with subsection (1) if, within 14 days after the development application is lodged—
(a)  the consent authority rejects the application, or
(b)  the application is withdrawn.
(3)  Immediately after the end of the public exhibition period, the consent authority must give a copy of all submissions received during the public exhibition period to each approval body.
43   Approval body may request additional information from consent authority
(1)  An approval body whose approval has been sought in relation to development may request additional information about the development from the consent authority.
(2)  The approval body’s request must—
(a)  be written, and
(b)  specify a reasonable period within which the additional information must be given to the approval body.
(3)  Immediately after receiving a request for additional information from an approval body, a consent authority must request the additional information from the applicant.
(4)  The consent authority’s request must—
(a)  be made through the NSW planning portal, and
(b)  specify the period within which the additional information must be given to the approval body, and
(c)  specify the number of days in the assessment period that have elapsed, and
(d)  inform the applicant that the assessment period ceases to run, in accordance with Part 4, Division 4, during the period between—
(i)  the request, and
(ii)  the day on which the applicant provides the additional information or notifies, or is taken to have notified, the consent authority that the information will not be provided.
(5)  Immediately after receiving the additional information from the applicant, the consent authority must give the information to the approval body.
(6)  An applicant to whom a request is made may, through the NSW planning portal, notify the consent authority that the applicant will not provide the additional information.
(7)  An applicant is taken to have notified the consent authority that the applicant will not provide the additional information if the applicant has not provided the information by the end of—
(a)  the period specified under subsection (2)(b), or
(b)  a further period allowed by the approval body.
(8)  The consent authority must notify the approval body as soon as practicable after the applicant notifies, or is taken to have notified, the consent authority that the applicant will not provide the additional information.
(9)  In this section—
additional information, in relation to a development application, means information the approval body considers necessary to properly consider the general terms of approval.
44   Notice of proposed consultations about Aboriginal heritage impact under National Parks and Wildlife Act 1974
(1)  If a development application relates to development that requires an Aboriginal heritage impact permit under the National Parks and Wildlife Act 1974, the Planning Secretary must notify the consent authority that Aboriginal community consultation is required under that Act.
(2)  Immediately after being notified by the Planning Secretary under this section, the consent authority must give notice to the applicant that—
(a)  specifies the number of days in the assessment period for the development application that have elapsed, and
(b)  informs the applicant that the assessment period ceases to run, in accordance with Part 4, Division 4, during a period of Aboriginal community consultation required under the National Parks and Wildlife Act 1974.
45   Notification of general terms of approval
(1)  An approval body that receives a development application from a consent authority must give written notice to the consent authority of its decision about the general terms of approval in relation to the development application, including whether it will grant an approval—
(a)  within 40 days after receiving the development application from the consent authority, or
(b)  if the development must be publicly exhibited under the Act—within 21 days after—
(i)  receiving from the consent authority the submissions made during the public exhibition period, or
(ii)  being notified by the consent authority that no submissions were made.
(2)  If the consent authority determines a development application by refusing to grant consent before the end of the period under subsection (1)—
(a)  the consent authority must notify the approval body as soon as practicable after the determination, and
(b)  this section ceases to apply to the development application.
(3)  This section does not prevent a consent authority from considering the general terms of approval notified to the consent authority by an approval body after the end of the period under subsection (1).
46   Planning Secretary may act on behalf of approval body
(1)  The Planning Secretary is authorised to act on behalf of an approval body if—
(a)  the approval body has not given written notice to the consent authority under the Act, section 4.47, within the relevant assessment period, of—
(i)  whether the approval body will grant the approval, or
(ii)  the general terms of its approval, or
(b)  the consent authority identifies an inconsistency in the general terms of approval of 2 or more approval bodies that means a general term of approval of an approval body could not be complied with without breaching a general term of approval of another approval body.
(2)  As soon as practicable after deciding to act on behalf of an approval body, the Planning Secretary must give written notice to the consent authority and approval body.
(3)  The assessment requirements set out in the Secretary’s Assessment Requirements for Development Requiring General Terms of Approval, as in force from time to time and published on the NSW planning portal, are prescribed as State assessment requirements.
(4)  In this section—
relevant assessment period means the period of 21 or 40 days specified in section 45(1) as the period within which the approval body must notify its decision to the consent authority.
47   Planning Secretary may request additional information from applicant
(1)  This section applies if the Planning Secretary decides to act on behalf of an approval body as referred to in the Act, section 4.47(4A).
(2)  The Planning Secretary may request additional information from the applicant.
(3)  The request must—
(a)  be written, and
(b)  specify a reasonable period within which the additional information must be given to the Planning Secretary.
(4)  An applicant to whom a request is made may give the Planning Secretary written notice that the applicant will not provide the additional information.
(5)  The Planning Secretary may deal with a request for general terms of approval without the additional information from an applicant if the applicant—
(a)  notifies the Planning Secretary that the additional information will not be provided, or
(b)  has not provided the additional information by the end of—
(i)  the period specified under subsection (3)(b), or
(ii)  a further period allowed by the Planning Secretary.
(6)  In this section—
additional information, in relation to a development application, means information the Planning Secretary considers necessary to properly consider the general terms of approval.
48   Notification of general terms of approval by Planning Secretary
(1)  If the Planning Secretary decides to act on behalf of an approval body as referred to in the Act, section 4.47(4A), the Planning Secretary must, within 21 days after giving notice under section 46(2), give written notice of the Planning Secretary’s decision about the general terms of approval, including whether approval will be given, to—
(a)  the consent authority, and
(b)  each approval body.
(2)  If the consent authority determines the development application by refusing to grant consent before the end of the period under subsection (1)—
(a)  the consent authority must, as soon as practicable after the determination, give written notice to the Planning Secretary, and
(b)  subsection (1) ceases to apply in relation to the development application.
(3)  This section does not prevent a consent authority from considering the general terms of approval notified to the consent authority by the Planning Secretary after the end of the period under subsection (1).
Division 4 Development applications for development requiring concurrence—the Act, ss 4.12, 4.13 and 4.64
49   Application of Division
(1)  This Division applies to a development application that relates to development requiring the concurrence of a concurrence authority.
(2)  This Division extends, with necessary modifications, to a development application or environmental assessment that relates to development or an activity for which concurrence is required under—
(a)  the Biodiversity Conservation Act 2016, section 7.12, or
(b)  the Fisheries Management Act 1994, section 221ZZ.
(3)  This Division, other than section 55, does not apply if a concurrence authority’s concurrence may be assumed under section 55.
(4)  This Division ceases to apply to a development application if the development application is rejected or withdrawn.
50   Consent authority to seek concurrence
(1)  Within 14 days after a development application for development requiring concurrence is lodged, the consent authority must give each concurrence authority whose concurrence is required—
(a)  a copy of the application and all accompanying documents, and
(b)  written notice of the following—
(i)  the basis on which its concurrence is required,
(ii)  the day on which the development application was lodged,
(iii)  if known, when the application will be publicly exhibited.
(2)  The consent authority is not required to comply with subsection (1) if, within 14 days after the application is lodged—
(a)  the consent authority rejects the application, or
(b)  the application is withdrawn.
(3)  If the Planning Secretary has made an election under State Environmental Planning Policy (Planning Systems) 2021, Chapter 4 in relation to the development, the consent authority must give the development application to the Planning Secretary as soon as practicable after receiving notice of the election.
(4)  Immediately after the end of the public exhibition period for a development application for development requiring concurrence, the consent authority must give a copy of all submissions received during the public exhibition period to each concurrence body.
s 50: Am 2022 (40), Sch 1[13].
51   Concurrence under Biodiversity Conservation Act 2016
(1)  This section applies if concurrence may be required under the Biodiversity Conservation Act 2016, Part 7 from a person (the biodiversity concurrence authority) because the development application indicates that a reduction is being sought in the number of biodiversity credits required to be retired under the biodiversity development assessment report.
(2)  The development application must be given to the biodiversity concurrence authority within 10 days, instead of 14 days, after the development application is lodged.
(3)  The consent authority must, within 30 days after the application is lodged, notify the biodiversity concurrence authority—
(a)  whether it proposes to reduce the number of biodiversity credits required to be retired, and
(b)  if so, the amount of and the reasons for the reduction, as referred to in the Biodiversity Conservation Act 2016, section 7.13(4).
(4)  If the concurrence of the biodiversity concurrence authority is required because the consent authority proposes to reduce the number of biodiversity credits, the reference in section 53(1)(a) to a concurrence authority giving notice of its decision to a consent authority within 40 days after receiving the development application is taken to be a reference to giving notice within 50 days after the development application is lodged.
52   Concurrence authority may request additional information from consent authority
(1)  A concurrence authority whose concurrence has been sought in relation to development may request additional information about the development from the consent authority.
(2)  The request must—
(a)  be written, and
(b)  specify a reasonable period within which the additional information must be given to the concurrence authority.
(3)  Immediately after receiving a request for additional information from a concurrence authority, a consent authority must request the additional information from the applicant.
(4)  The consent authority’s request must—
(a)  be written, and
(b)  specify the period within which the additional information must be given to the concurrence authority, and
(c)  specify the number of days in the assessment period that have elapsed, and
(d)  inform the applicant that the assessment period ceases to run, in accordance with Part 4, Division 4, during the period between—
(i)  the request, and
(ii)  the day on which the applicant provides the information or notifies, or is taken to have notified, the consent authority that the information will not be provided.
(5)  Immediately after receiving the additional information from the applicant, the consent authority must give the information to the concurrence authority.
(6)  The applicant to whom a request is made may, through the NSW planning portal, notify the consent authority that the applicant will not provide the additional information.
(7)  The applicant is taken to have notified the consent authority that the applicant will not provide the additional information if the applicant has not provided the information by the end of—
(a)  the period specified under subsection (2)(b), or
(b)  a further period allowed by the concurrence authority.
(8)  The consent authority must notify the concurrence authority as soon as practicable after the applicant notifies, or is taken to have notified, the consent authority that the applicant will not provide the additional information.
(9)  In this section—
additional information, in relation to development, means information the concurrence authority considers necessary to properly consider if concurrence should be granted.
53   Notification of decision
(1)  A concurrence authority that receives 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 after receiving the development application from the consent authority, or a lesser period, if any, provided for in an environmental planning instrument, or
(b)  if the development must be publicly exhibited under the Act—within 21 days after—
(i)  receiving from the consent authority the submissions made during the public exhibition period, or
(ii)  being notified by the consent authority that no submissions were made.
(2)  If the consent authority determines a development application by refusing to grant consent before the end of the period under subsection (1)—
(a)  the consent authority must notify the concurrence authority as soon as practicable after the determination, and
(b)  this section ceases to apply to the development application.
(3)  This section does not prevent a consent authority from considering a concurrence authority’s decision on a development application that is notified to the consent authority after the end of the relevant period under subsection (1).
54   Notice of reasons for concurrence decisions
If the concurrence authority grants concurrence subject to a condition, or refuses concurrence, the concurrence authority must give written notice to the consent authority of the reasons for the imposition of the condition or the refusal.
55   Circumstances in which concurrence may be assumed
(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 the qualifications or conditions specified in the notice, and
(b)  amend or revoke an earlier notice under this section.
(2)  A consent granted by a consent authority that has assumed concurrence in accordance with a notice under this section is as valid and effective as if concurrence had been given.
Division 5 Development applications for designated development, nominated integrated development, threatened species development, Class 1 aquaculture development and State significant development—the Act, ss 4.12, 4.47 and 4.64
56   Notice of development applications
(1)  This section applies to a development application for the following only—
(a)  designated development,
(b)  nominated integrated development,
(c)  threatened species development,
(d)  Class 1 aquaculture development,
(e)  State significant development.
(2)  As soon as practicable after a development application is lodged, 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 that, in the consent authority’s opinion, may have an interest in the determination of the application, and
(ii)  the persons that own or occupy the land adjoining the land to which the application relates.
(3)  Subsection (2)(b)(i) does not require notice to be given to relevant concurrence authorities or approval bodies.
(4)  Subsection (2)(b)(ii) does not apply to a notice that relates to an application for public notification development or designated development.
(5)  The fee payable to a consent authority for the giving of notice under this section, other than for State significant development, is specified in Schedule 4.
(6)  The notice under subsection (2)(a) and (b) must contain the following information—
(a)  a description and address of the land on which the development will be carried out,
(b)  the name of the applicant and the consent authority,
(c)  a description of the development,
(d)  whether the development is designated development, nominated integrated development, threatened species development, Class 1 aquaculture development or State significant development,
(e)  a statement that the application and the documents accompanying the application, including any environmental impact statement, are available on the consent authority’s website for the minimum period required under the Act,
(f)  a statement that a person may, during the public exhibition period, make submissions to the consent authority about the application and that the submissions must specify the grounds of objection, if any,
(g)  for development that is also integrated development—a statement of the required approvals and the approval bodies for the approvals,
(h)  for State significant development—whether the Minister has directed that the Independent Planning Commission must hold a public hearing,
(i)  for designated development—
(i)  a statement that, unless the Independent Planning Commission has held a public hearing, a person who objected to the development by making a submission and who is dissatisfied with the determination of the consent authority to grant development consent, may appeal to the Court, and
(ii)  a statement that, if the Independent Planning Commission holds a public hearing, the Commission’s determination of the application is final and not subject to appeal.
(7)  For the purposes of this section—
(a)  if land is a lot in a freehold strata scheme—a notice to the owners corporation is taken to be a notice to the owner or occupier of each lot in the strata scheme, and
(b)  if land is a lot in a leasehold strata scheme—a notice to the lessor under the leasehold strata scheme and to the owners corporation is taken to be a notice to the owner or occupier of each lot in the strata scheme, and
(c)  if land is owned or occupied by more than 1 person—a notice to 1 owner or 1 occupier is taken to be a notice to all owners and occupiers of the land.
(8)  In this section—
freehold strata scheme and leasehold strata scheme have the same meaning as in the Strata Schemes Development Act 2015.
57   Notice not required in certain circumstances
(1)  This section applies to a development application for the following that has been lodged but not determined by the consent authority—
(a)  nominated integrated development,
(b)  threatened species development,
(c)  Class 1 aquaculture development.
(2)  The consent authority may decide not to comply with section 56 in relation to an amended development application if the consent authority—
(a)  complied with section 56 in relation to the development application (the original development application) before it was amended, and
(b)  considers that the amended development application differs from the original development application in minor ways only.
(3)  Compliance with section 56 in relation to the original development application is taken to be compliance in relation to the amended development application.
(4)  The consent authority must give written notice to the applicant of its decision under this section no later than the notice of the determination of the amended development application is given under the Act, section 4.18.
58   Exhibition of notice of designated development application
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)  have the heading “DEVELOPMENT PROPOSAL” in capital letters and bold type, 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 development application, including any environmental impact statement, are available on the consent authority’s website for the minimum period required under the Act for designated development, and
(e)  if practicable, be able to be read from a public place.
59   Additional requirements for State significant development—the Act, s 4.39
(1)  The Planning Secretary must give an applicant for State significant development a copy of the submissions, or a summary of the submissions, received in relation to the application during the public exhibition period.
(2)  The Planning Secretary may, by written notice—
(a)  identify the issues raised in the submissions that the Planning Secretary considers require a response from the applicant, and
(b)  require the applicant to give a written response, and
(c)  require the applicant to have regard to the State Significant Development Guidelines in preparing the response.
(3)  The written notice must specify a reasonable period within which the response must be given to the Planning Secretary.
(4)  The applicant may, using the NSW planning portal, notify the Planning Secretary that the applicant will not give a response.
(5)  The applicant is taken to have notified the Planning Secretary that the applicant will not give a response if the applicant has not provided the information by the end of—
(a)  the period specified under subsection (3), or
(b)  a further period allowed by the Planning Secretary.
(6)  The Planning Secretary must publish the following documents relating to a development application for State significant development on the NSW planning portal—
(a)  the Planning Secretary’s environmental assessment requirements under Part 8, Division 2,
(b)  the application, including accompanying documents and information and any amendments made to the application,
(c)  submissions received during the public exhibition period and any response from the applicant received under subsection (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 development consent, including accompanying documents and information,
(g)  documents or information given to the Planning Secretary by the applicant in response to submissions.
s 59: Am 2022 (142), Sch 1[1].
60   Submissions about designated development to be given to Planning Secretary
The consent authority must, immediately after the public exhibition period for a development application for designated development, give a copy of any submissions to the Planning Secretary, unless the Minister is the consent authority.
Part 4 Determination of development applications
Division 1 Determination of development applications—the Act, s 4.15(1)(a)(iv)
61   Additional matters that consent authority must consider
(1)  In determining a development application for the demolition of a building, the consent authority must consider the Australian Standard AS 2601—2001: The Demolition of Structures.
(2)  In determining a development application for the carrying out of development on land that is subject to a subdivision order under the Act, Schedule 7, the consent authority must consider—
(a)  the subdivision order, and
(b)  any development plan prepared for the land by a relevant authority under that Schedule.
(3)  In determining a development application for development on the following land, the consent authority must consider the Dark Sky Planning Guideline
(a)  land in the local government area of Coonamble, Gilgandra or Warrumbungle Shire or in the part of the local government area of Dubbo Regional that was formerly in the City of Dubbo,
(b)  land less than 200 kilometres from the Siding Spring Observatory, if the development is—
(i)  State significant development, or
(ii)  designated development, or
(iii)  development specified in State Environmental Planning Policy (Planning Systems) 2021, Schedule 6.
(4)  In determining a development application for development for the purposes of a manor house or multi dwelling housing (terraces), the consent authority must consider the Low Rise Housing Diversity Design Guide for Development Applications published by the Department in July 2020.
(5)  Subsection (4) applies only if the consent authority is satisfied there is not a development control plan that adequately addresses the development.
(6)  In determining a development application for development for the erection of a building for residential purposes on land in Penrith City Centre, within the meaning of Penrith Local Environmental Plan 2010, the consent authority must consider the Development Assessment Guideline: An Adaptive Response to Flood Risk Management for Residential Development in the Penrith City Centre published by the Department on 28 June 2019.
(7)  In determining a development application for development on land to which Wagga Wagga Local Environmental Plan 2010 applies, the consent authority must consider whether the development is consistent with the Wagga Wagga Special Activation Precinct Master Plan published by the Department in May 2021.
(7A)  In determining a development application for development on land to which Moree Plains Local Environmental Plan 2011 applies, the consent authority must consider whether the development is consistent with the Moree Plains Special Activation Precinct Master Plan published by the Department in January 2022.
(8)  Subsections (7) and (7A) do not apply to a development application made on or after 30 September 2022.
s 61: Am 2022 (39), sec 3(1) (2); 2022 (40), Sch 1[14]; 2022 (142), Sch 1[2].
62   Consideration of fire safety
(1)  This section applies to the determination of a development application for a change of building use for an existing building if the applicant does not seek the rebuilding or alteration of the building.
(2)  The consent authority must—
(a)  consider whether the fire protection and structural capacity of the building will be appropriate to the building’s proposed use, and
(b)  not grant consent to the change of building use unless the consent authority is satisfied that the building complies, or will, when the development is completed, comply, with the Category 1 fire safety provisions that are applicable to the building’s proposed use.
(3)  Subsection (2)(b) does not apply to the extent to which an exemption from a provision of the Building Code of Australia or a fire safety standard is in force under the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.
63   Considerations for erection of temporary structures
In determining a development application for the erection of a temporary structure, the consent authority must consider whether—
(a)  the fire protection and structural capacity of the structure will be appropriate to the proposed use of the structure, and
(b)  the ground or other surface on which the structure will be erected will be sufficiently firm and level to sustain the structure while in use.
64   Consent authority may require upgrade of buildings
(1)  This section applies to the determination of a development application that involves the rebuilding or alteration of an existing building if—
(a)  the proposed building work and previous building work together represent more than half of the total volume of the building, or
(b)  the measures contained in the building are inadequate—
(i)  to protect persons using the building, if there is a fire, or
(ii)  to facilitate the safe egress of persons using the building from the building, if there is a fire, or
(iii)  to restrict the spread of fire from the building to other buildings nearby.
(2)  The consent authority must consider whether it is appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia.
(3)  In this section—
previous building work means building work completed or authorised within the previous 3 years.
total volume of a building means the volume of the building before the previous building work commenced and measured over the building’s roof and external walls.
65   Consideration of conservation plan for development at Sydney Opera House
(1)  In determining a development application for development at the Sydney Opera House to which the Act, Part 4 applies, the consent authority must consider the provisions of the Sydney Opera House Conservation Plan.
(2)  In this section—
Sydney Opera House has the same meaning as Opera House in the Sydney Opera House Trust Act 1961.
Sydney Opera House Conservation Plan means the conservation management plan for the Sydney Opera House entitled “Respecting the Vision”, 4th edition, published in July 2017 on the Sydney Opera House Trust’s website.
66   Contributions plans for certain areas in Sydney—the Act, s 4.16(1)
(1)  A development application for development on the following land must not be determined by the consent authority unless a contributions plan has been approved for the land to which the application relates—
(a)  land in Zone IN1 General Industrial under State Environmental Planning Policy (Industry and Employment) 2021, Chapter 2,
(b)  land in a residential, business or industrial zone, Zone C4 Environmental Living or Zone 1 Urban Development under a Precinct Plan in State Environmental Planning Policy (Precincts—Central River City) 2021, Chapter 3 or State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 3,
(2)  The consent authority may dispense with the requirement for a contributions plan if—
(a)  the consent authority considers the development application is of a minor nature, or
(b)  the developer has entered into a planning agreement for the matters that may be the subject of a contributions plan.
(3)  This section applies to a development application for development on land referred to in subsection (1)(b) that was made but not finally determined before 25 January 2019.
s 66: Am 2022 (40), Sch 1[15]–[17]; 2022 (142), Sch 1[3].
67   Modification or surrender of development consent or existing use right—the Act, s 4.17(5)
(1)  A development consent or existing use right may be modified or surrendered by written notice to the consent authority.
(2)  The notice must contain the following information—
(a)  the name and address of the person giving the notice,
(b)  the address and folio identifier of the land to which the consent or right relates,
(c)  a description of the consent or right to be modified or surrendered,
(d)  whether the consent or right will be modified, including details of the modification, or surrendered,
(e)  if the person giving the notice is not the owner of the land—a statement signed by the owner of the land that the owner consents to the modification or surrender of the consent or right.
(3)  The notice takes effect when the consent authority gives written notice to the person giving the notice that the consent authority received the notice.
(4)  The notice operates, according to its terms, to modify or surrender the development consent or existing use right to which it relates.
(5)  The consent of the owner is not required under subsection (2)(e) if the consent of the owner of the land was not required under section 23 to make the application for the development consent.
(6)  In this section—
existing use right means a right conferred by the Act, Division 4.11.
68   Voluntary surrender of development consent—the Act, s 4.63
(1)  A development consent may be voluntarily surrendered by written notice to the consent authority.
(2)  The notice must contain the following information—
(a)  the name and address of the person giving the notice,
(b)  the address and folio identifier of the land to which the development 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 that the owner consents to the surrender of the development consent,
(e)  whether any part of the development to which the development consent relates has commenced.
(3)  If any part of the development to which the development consent relates has commenced (the commenced development), the notice must also set out the circumstances that indicate—
(a)  the commenced development was carried out in compliance with—
(i)  each condition of the development consent that is relevant to the commencement development, or
(ii)  an agreement with the consent authority relating to the development consent that is relevant to the commenced development, and
(b)  the surrender of the development consent will not have an adverse impact on a third party or the locality.
(4)  The notice takes effect when the consent authority notifies the person that the consent authority is satisfied that—
(a)  no part of the development to which the development consent relates has commenced, or
(b)  if there is commenced development—
(i)  it was carried out in compliance with each condition of the development consent, or an agreement with the consent authority relating to the development consent, that is relevant to the commenced development, and
(ii)  the surrender of the development consent will not have an adverse impact on a third party or the locality.
(5)  The notice operates, according to its terms, to surrender the development consent to which it relates.
(6)  The consent of the owner is not required under subsection (2)(d) if the consent of the owner of the land was not required under section 23 to make the application for the development consent.
Division 2 Conditions of development consent—the Act, s 4.17(11)
Subdivision 1 Development generally
69   Compliance with Building Code of Australia and insurance requirements under Home Building Act 1989
(1)  It is a condition of a development consent for development that involves building work that the work must be carried out in accordance with the requirements of the Building Code of Australia.
(2)  It is a condition of a development consent for development that involves residential building work for which a contract of insurance is required under the Home Building Act 1989, Part 6 that a contract of insurance is in force before building work authorised to be carried out by the consent commences.
(3)  It is a condition of a development consent for a temporary structure used as an entertainment venue that the temporary structure must comply with Part B1 and NSW Part H102 in Volume 1 of the Building Code of Australia.
(4)  In subsection (1), a reference to the Building Code of Australia is a reference to the Building Code of Australia as in force on the day on which the application for the construction certificate was made.
(5)  In subsection (3), a reference to the Building Code of Australia is a reference to the Building Code of Australia as in force on the day on which the application for development consent was made.
(6)  This section does not apply—
(a)  to the extent to which an exemption from a provision of the Building Code of Australia or a fire safety standard is in force under the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021, or
(b)  to the erection of a temporary building, other than a temporary structure to which subsection (3) applies.
70   Erection of signs
(1)  This section applies to a development consent for development involving building work, subdivision work or demolition work.
(2)  It is a condition of the development consent that a sign must be erected in a prominent position on a 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 the building work and a telephone number on which the principal contractor may be contacted outside working hours, and
(c)  stating that unauthorised entry to the work site is prohibited.
(3)  The sign must be—
(a)  maintained while the building work, subdivision work or demolition work is being carried out, and
(b)  removed when the work has been completed.
(4)  This section does not apply in relation to—
(a)  building work, subdivision work or demolition work carried out inside an existing building, if the work does not affect the external walls of the building, or
(b)  Crown building work certified to comply with the Building Code of Australia under the Act, Part 6.
71   Notification of Home Building Act 1989 requirements
(1)  This section applies to a development consent for development involving residential building work if the principal certifier is not the council.
(2)  It is a condition of the development consent that residential building work must not be carried out unless the principal certifier for the development to which the work relates has given the council written notice of the following—
(a)  for work that requires a principal contractor to be appointed—
(i)  the name and licence number of the principal contractor, and
(ii)  the name of the insurer of the work under the Home Building Act 1989, Part 6,
(b)  for work to be carried out 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 the Home Building Act 1989—the number of the owner-builder permit.
(3)  If the information notified under subsection (2) is no longer correct, it is a condition of the development consent that further work must not be carried out unless the principal certifier has given the council written notice of the updated information.
(4)  This section does not apply in relation to Crown building work certified to comply with the Building Code of Australia under the Act, Part 6.
72   Entertainment venues
(1)  The requirements specified in this section are conditions of development consent for the use of a building as an entertainment venue.
(2)  During a stage performance at an entertainment venue, there must be at least 1 suitably trained person in attendance in the stage area at all times for the purpose of operating, if necessary, a proscenium safety curtain, drencher system and smoke exhaust system.
(3)  If a proscenium safety curtain is installed at an entertainment venue, there must be no obstruction to the opening or closing of the curtain and the curtain must be operable at all times.
(4)  When a film is being screened at an entertainment venue, there must be at least 1 person in attendance at the entertainment venue who is trained in—
(a)  the operation of the projectors being used, and
(b)  the use of the fire fighting equipment in the room in which the projectors are installed (the projection room).
(5)  If the projection room is not fitted with automatic fire suppression equipment and a smoke detection system, in accordance with the Building Code of Australia, the person required by subsection (4) to be in attendance must be in the projection suite in which the projection room is located during the screening of a film.
(6)  A member of the public must not be present in the projection suite during the screening of a film.
(7)  An entertainment venue must not screen a nitrate film.
(8)  An emergency evacuation plan must be prepared, maintained and implemented for a building, other than a temporary structure, used as an entertainment venue.
(9)  The emergency evacuation plan must specify the following—
(a)  the location of all exits, and fire protection and safety equipment, for the part of the building used as an entertainment venue,
(b)  the number of fire safety officers that must be present during performances,
(c)  how the audience will be evacuated from the building if there is a fire or other emergency.
(10)  A fire safety officer appointed to be present during a performance must have appropriate training in evacuating persons from the building if there is a fire or other emergency.
(11)  In this section—
exit has the same meaning as in the Building Code of Australia.
73   Maximum capacity signage
(1)  This section applies to a development consent, including an existing development consent, for the following uses of a building, if the development consent contains a condition specifying the maximum number of persons permitted in the building—
(a)  an entertainment venue,
(b)  a function centre,
(c)  a pub,
(d)  a registered club,
(e)  a restaurant or cafe.
(2)  It is a condition of the development consent that 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.
74   Shoring and adequacy of adjoining property
(1)  This section applies to a development consent for development that involves excavation that extends below the level of the base of the footings of a building, structure or work on adjoining land, including a structure or work in a road or rail corridor.
(2)  It is a condition of the development consent that 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 on adjoining land from possible damage from the excavation, and
(b)  if necessary, underpin the building, structure or work on adjoining land to prevent damage from the excavation.
(3)  This section does not apply if—
(a)  the person having the benefit of the development consent owns the adjoining land, or
(b)  the owner of the adjoining land gives written consent to the condition not applying.
75   Fulfilment of BASIX commitments
It is a condition of a development consent for the following that each commitment listed in a relevant BASIX certificate is fulfilled—
(a)  BASIX development,
(b)  BASIX optional development, if the development application was accompanied by a BASIX certificate.
76   Deferred commencement consent
(1)  A development consent with a deferred commencement, as referred to in the Act, section 4.16(3), must be clearly identified as a “deferred commencement” consent, whether by using the expression, referring to that section or otherwise.
(2)  A deferred commencement consent must clearly distinguish between—
(a)  conditions that relate to matters about which the consent authority must be satisfied before the consent can operate (the relevant matters), and
(b)  other conditions.
(3)  A consent authority may specify the period within which the applicant must produce sufficient evidence to the consent authority to enable it to be satisfied about the relevant matters.
(4)  If the applicant produces evidence in accordance with this section, the consent authority must notify the applicant whether it is satisfied about the relevant matters.
(5)  If the consent authority does not notify the applicant within 28 days after the applicant produces the evidence, the consent authority is taken to have notified the applicant, on the day on which the period expires, that it is not satisfied about the relevant matters.
(6)  Subsection (5) applies for the purposes of the Act, section 8.7 only.
77   Conditions for ancillary aspects of development
(1)  If a consent authority grants development consent subject to a condition referred to in the Act, section 4.17(2) in relation 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.
(2)  The applicant may produce evidence to the consent authority, or to the person specified by the consent authority, sufficient to enable the consent authority or the person to be satisfied in relation to the ancillary aspect of the development.
(3)  For the purposes of the Act, section 4.17(3), 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.
78   Conditions for State significant development
A development consent may be granted subject to a condition referred to in the Act, section 4.17(4A) or (4B) only if the development is State significant development.
79   Review conditions—the Act, s 4.17(10C)
(1)  A development consent that is granted subject to a reviewable condition may, as referred to in the Act, section 4.17(10B), be granted subject to a further condition (a review condition) if the development consent relates to the following kinds of development—
(a)  an entertainment venue,
(b)  a function centre,
(c)  a pub,
(d)  a registered club,
(e)  a restaurant or cafe.
(2)  A development consent that is subject to a review condition must contain the following—
(a)  a statement that the development consent is subject to the review condition and the purpose of the review condition,
(b)  a statement that the consent authority will carry out the reviews,
(c)  when, or at what intervals, the reviews must be carried out.
(3)  The consent authority must give written notice to the operator of a development that is subject to a review condition at least 14 days before carrying out a review.
(4)  The consent authority may notify other persons of the review as it considers appropriate.
(5)  The consent authority must take into account submissions that are received from any person within 14 days after notice of a review is given to the person.
Subdivision 2 Development permitted under State Environmental Planning Policy (Housing) 2021
80   Definitions
In this Subdivision—
Affordable Housing Guidelines means the NSW Affordable Housing Ministerial Guidelines published by the Department of Community and Justice and approved by the Minister for Families, Communities and Disability Services from time to time.
Land and Housing Corporation means the New South Wales Land and Housing Corporation constituted under the Housing Act 2001.
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.
81   Build-to-rent housing
(1)  This section applies to a development consent for development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 3, Part 4.
(2)  It is a condition of the development consent that during the relevant period—
(a)  the buildings to which the development consent relates 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—the buildings to which the development consent relates must not be subdivided into separate lots, and
(c)  for development on land in another zone—the tenanted component of the buildings to which the development consent relates must not be subdivided into separate lots, and
(d)  the tenanted component of the buildings to which the development consent relates must—
(i)  be owned and controlled by 1 person only, and
(ii)  be operated by 1 managing agent only, who provides on-site management.
(3)  In this section—
relevant period has the same meaning as in State Environmental Planning Policy (Housing) 2021, section 73.
tenanted component has the same meaning as in State Environmental Planning Policy (Housing) 2021, section 71.
s 81: Am 2022 (40), Sch 1[18] [19].
82   In-fill affordable housing
(1)  This section 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)  It is a condition of the development consent that 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 subsection (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)  evidence that the requirements of paragraphs (a) and (b) have been met must be given to the consent authority.
(3)  It is a condition of the development consent that 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 section—
affordable housing component has the same meaning as in State Environmental Planning Policy (Housing) 2021, section 21.
relevant period means a period of 15 years commencing on the day on which an occupation certificate is issued for all parts of the building or buildings to which the development consent relates.
s 82: Am 2022 (40), Sch 1[20].
83   Boarding houses
(1)  This section applies to development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 2, Part 2, Division 2.
(2)  It is a condition of the development consent that 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 subsection (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)  evidence that the requirements of paragraphs (a) and (b) have been met must be given to the consent authority.
(3)  It is a condition of the development consent that 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.
84   Residential flat buildings—social housing providers, public authorities and joint ventures
(1)  This section 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)  It is a condition of the development consent that 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 in subsection (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)  evidence that the requirements in paragraph (a) and (b) have been met must be given to the consent authority.
(3)  It is a condition of the development consent that during the relevant period—
(a)  50% of the dwellings to which the development consent 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 section—
relevant period means a period of 10 years commencing on the day on which an occupation certificate is issued for all parts of the building or buildings to which the development consent relates.
85   Co-living housing
(1)  This section applies to development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 3, Part 3.
(2)  It is a condition of the development consent that 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.
86   Seniors housing
(1)  This section applies to development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 3, Part 5.
(2)  It is a condition of the development consent that, before the issue of the occupation certificate for the development, 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 that the requirement in subsection (3) is met.
(3)  It is a condition of the development consent that, from the day on which an occupation certificate is issued for the development, only the following persons may occupy the accommodation to which the development consent 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.
Division 3 Post-determination notifications—the Act, s 4.18(1)
87   Notice of determination of development application
(1)  Within 14 days after determining a development application, the consent authority must give written notice of the determination to the following—
(a)  the applicant,
(b)  each person referred to in the Act, section 4.18(1)(b),
(c)  each person who made a submission about the development application under the Act, whether or not the development was designated development,
(d)  for development that required concurrence under the Biodiversity Conservation Act 2016, Part 7 or under the Fisheries Management Act 1994, Part 7A—the person whose concurrence was required,
(e)  for a development on land owned by a Local Aboriginal Land Council—the New South Wales Aboriginal Land Council,
(f)  for integrated development—the relevant approval body, as required under the Act, section 4.47(6).
(2)  Within 7 days after determining a development application to which State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 5, section 5.17 applies, the consent authority must give written notice of the determination to the chief executive of the applicable Port Operator, within the meaning of that Chapter.
(3)  Notice under subsection (1)(a) must be given through the NSW planning portal.
(4)  Notice under subsection (1)(d) or (f) may be given through the NSW planning portal.
(5)  Failure to give the notice within the period required under this section does not affect the validity of the notice or the development consent to which it relates.
s 87: Am 2022 (40), Sch 1[21] [22].
88   Content of notice of determination
(1)  The notice of the determination of a development application given under section 87(1)(a), (d), (e) or (f) or (2) must contain the following information—
(a)  whether the application is granted or refused,
(b)  if the application is refused—the consent authority’s reasons for the refusal,
(c)  if the application is granted with conditions, including conditions under the Act, section 4.17(11)—
(i)  the terms of the conditions, and
(ii)  for conditions other than the conditions prescribed under the Act, section 4.17(11)—the consent authority’s reasons for imposing the conditions,
(d)  the day on which the determination was made,
(e)  if development consent is granted for a concept development application—whether a subsequent development application is required,
(f)  if development consent is granted—
(i)  the day from which the development consent operates, and
(ii)  the day on which the development consent lapses, and
(iii)  a copy of any relevant plans endorsed by the consent authority,
(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 about the application,
(i)  which approval bodies have given general terms of approval in relation to the development, as referred to in the Act, section 4.50,
(j)  whether the applicant has the right to request a review of the determination under the Act, section 8.3,
(k)  whether the applicant has a right of appeal against the determination under the Act, Part 8,
(l)  whether an objector has a right of appeal against the determination under the Act.
(2)  The notice must clearly refer to the registered number of the development application.
(3)  If a development consent is granted subject to a condition that the development consent is not to operate until the applicant satisfies the consent authority, or a person specified by the consent authority, about a matter specified in the condition—
(a)  the day from which the development consent operates must not be endorsed on the notice of determination, and
(b)  if the applicant satisfies the consent authority, or person, about the matter, the consent authority must notify the applicant of the day from which the development consent operates.
89   Additional information relating to local infrastructure contributions
(1)  This section applies to the notice of the determination of a development application given to the applicant under section 87(1)(a), if the development consent is granted subject to—
(a)  a condition under the Act, section 7.11 requiring the dedication of land or the payment of a monetary contribution, or both, or
(b)  a condition under the Act, section 7.12 requiring the payment of a levy.
(2)  The notice must also specify—
(a)  if the condition was imposed under a contributions plan—
(i)  the name of the contributions plan under which the condition is imposed, and
(ii)  that the contributions plan is available on the council’s website, and
(b)  for a condition under the Act, section 7.11—the specific public amenity or public service in relation to which the condition is imposed.
90   Content of notice of determination for persons who made submissions
(1)  This section applies to notice of the determination of a development application given to a person under section 87(1)(b) or (c).
(2)  The notice must contain the following information—
(a)  whether the application has been granted or refused,
(b)  if development consent is granted—
(i)  the day from which the development consent operates, and
(ii)  the day on which the development consent lapses,
(c)  whether the Independent Planning Commission has conducted a public hearing about the application,
(d)  which approval bodies have given general terms of approval in relation to the development, as referred to in the Act, section 4.50,
(e)  whether the applicant has the right to request a review of the determination under the Act, section 8.3,
(f)  whether the applicant has a right of appeal against the determination under the Act, Part 8,
(g)  whether an objector has a right of appeal against the determination under the Act,
(h)  how the person may access more information about the development application.
(3)  The notice must clearly refer to the registered number of the development application.
(4)  Failure to give the notice within 14 days does not affect the validity of the notice or a development consent to which it relates.
Division 4 Time for determining development applications—the Act, s 8.11
91   Time for determining development applications
(1)  A consent authority is taken to have refused development consent if it has not determined the development application within the assessment period calculated in accordance with this Division.
(2)  The assessment period is 60 days for a development application—
(a)  for designated development, or
(b)  for integrated development, other than integrated development that is Class 1 aquaculture development, or
(c)  for development requiring concurrence, or
(d)  that is accompanied by a biodiversity development assessment report under the Biodiversity Conservation Act 2016 that proposes to reduce the number of biodiversity credits required to be retired.
(3)  The assessment period is 90 days for a development application for State significant development.
(4)  The assessment period is 40 days for all other development applications, other than a Crown development application referred to in section 95.
92   Commencement of assessment period
(1)  The assessment period for a development application commences on the day on which the development application is lodged.
(2)  If a public hearing is conducted by the Independent Planning Commission into a development or part of a development, the assessment period for the development application commences on the day on which the Independent Planning Commission’s final report is published on the NSW planning portal, as required under the Act, Schedule 2, clause 6.
93   Additional days for certain assessment periods
(1)  The assessment period for a development application for the following development is increased by the number of days by which the public exhibition period for the development application exceeds the minimum period required under the Act—
(a)  designated development,
(b)  nominated integrated development,
(c)  threatened species development,
(d)  State significant development.
(2)  If the public exhibition period for a development application for development specified in subsection (1) exceeds the minimum period required under the Act, the consent authority must notify the applicant of the dates of the public exhibition period and the effect of subsection (1).
94   Circumstances in which the assessment period ceases to run
(1)  The assessment period for a development application for State significant development ceases to run during the period between the day on which the Planning Secretary requests a written response to submissions from the applicant under section 59 and the earlier of—
(a)  the day on which the response is given to the Planning Secretary, or
(b)  the day on which the applicant gives, or is taken to have given, written notice to the Planning Secretary that a response will not be given.
(2)  The assessment period for a development application ceases to run during the period between the day on which a consent authority requests additional information from an applicant under section 36 and the earlier of—
(a)  the day on which the information is given to the consent authority, or
(b)  the day on which the applicant gives, or is taken to have given, written notice to the consent authority that the information will not be given.
(3)  Subsection (2) applies only if the consent authority’s request is made within 25 days after the day on which the development application is lodged.
(4)  The assessment period for integrated development that requires an Aboriginal heritage impact permit under the National Parks and Wildlife Act 1974 ceases to run during the period of Aboriginal community consultation required under that Act that occurs within 46 days after the day on which the development application is lodged.
(5)  Subsection (4) applies only if the Aboriginal community consultation commences within 25 days after the day on which the development application is given to the approval body under the National Parks and Wildlife Act 1974.
(6)  The assessment period for development requiring the concurrence of a concurrence authority or the approval of an approval body ceases to run during the period between the day on which the concurrence authority or approval body requests additional information from a consent authority under section 43 or 52 and the earlier of—
(a)  the day on which the consent authority gives the information to the concurrence authority or approval body, or
(b)  the day on which the consent authority gives, or is taken to have given, written notice to the concurrence authority or approval body that the information will not be given.
(7)  Subsection (6) applies only if the concurrence authority or approval body makes the request to the consent authority within 25 days after the request for concurrence or approval is received by the concurrence authority or approval body from the consent authority.
95   Time for determining Crown development applications
(1)  For the purposes of the Act, section 4.33(2), the prescribed period is 70 days after the day on which the Crown development application is lodged.
(2)  For the purposes of the Act, section 4.33(5), the prescribed period is 50 days after the Crown development application is referred to the applicable Sydney district or regional planning panel under the Act, section 4.33(2)(b).
Division 5 Miscellaneous
96   When work is physically commenced—the Act, s 4.53(7)
(1)  Work is not taken to have been physically commenced merely by the doing of 1 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 will be developed.
(2)  This section does not apply to a development consent granted before 15 May 2020.
97   Validity of development consents—the Act, s 4.59
A notice relating to the granting of a development consent that describes the land and the development must be published on the consent authority’s website.
Part 5 Modification of development consents—the Act, ss 4.55, 4.56 and 4.57
Division 1 Applications for modification of development consent
98   Modification applications for development
(1)  A modification application may be made by—
(a)  the owner of the land to which the modification application relates, or
(b)  another person, with the consent of the owner of the land.
(2)  The consent of the owner is not required if the original development application was made, or could have been made, without the consent of the owner.
(3)  The consent of the owner of the land is not required for a modification application made by a public authority, or a modification application for public notification development, if the applicant complies with subsections (4) and (5).
(4)  The applicant must give notice of the modification application—
(a)  to the owner of the land before the modification application is made, or
(b)  by publishing, no later than 14 days after the modification application is made. a notice in a newspaper circulating in the area in which the development will be carried out.
(5)  If the applicant gives notice under subsection (4)(b), the applicant must also, no later than 14 days after the application is made—
(a)  if the applicant is a public authority—publish the notice on the public authority’s website, or
(b)  for public notification development—arrange for the consent authority to publish the notice on the NSW planning portal.
(6)  A modification application 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.
(7)  A development consent may not be modified by the Court under the Act, section 4.55 if a modification application has been made to the consent authority under the Act, section 4.56 and has not been withdrawn.
99   Making a modification application
(1)  A modification application must—
(a)  be in the approved form, and
(b)  contain all the information and documents required by—
(i)  the approved form, and
(ii)  the Act or this Regulation, and
(c)  be submitted on the NSW planning portal.
(2)  If the modification application is for State significant development—
(a)  the application must also include particulars of the nature of the modification, and
(b)  the applicant must have regard to the State Significant Development Guidelines in preparing the application.
(3)  The fees payable for a modification application are specified in Schedule 4 and determined in accordance with Part 13.
(4)  A modification application is lodged
(a)  on the day on which the fees payable for the modification application under this Regulation are paid, or
(b)  if the applicant is notified under Part 13 that no fee is payable—on the day the applicant submitted the application on the NSW planning portal.
(5)  A fee is not payable for an application for the modification of a development consent granted by the Court on appeal from a consent authority.
s 99: Am 2022 (142), Sch 1[1].
100   Content of modification application
(1)  A modification application must contain the following information—
(a)  the name and address of the applicant,
(b)  a description of the development that will be carried out under the development consent,
(c)  the address and folio identifier of the land on which the development will be carried out,
(d)  a description of the modification to the development consent, including the name, number and date of plans that have changed, to enable the consent authority to compare the development with the development originally approved,
(e)  whether the modification is intended to—
(i)  merely correct a minor error, misdescription or miscalculation, or
(ii)  have another effect specified in the modification application,
(f)  a description of the expected impacts of the modification,
(g)  an undertaking that the modified development will remain substantially the same as the development originally approved,
(h)  for a modification application that is accompanied by a biodiversity development assessment report—the biodiversity credits information,
(i)  if the applicant is not the owner of the land—a statement that the owner consents to the making of the modification application,
(j)  whether the modification application is being made to—
(i)  the Court under the Act, section 4.55, or
(ii)  the consent authority under the Act, section 4.56.
(2)  Subsection (1)(i) does not apply if the consent of the owner is not required under section 98.
(3)  If a modification application under the Act, section 4.55(1A) or (2) relates to BASIX development, or BASIX optional development if the development application was accompanied by a BASIX certificate, the application must be accompanied by—
(a)  the BASIX certificate, or
(b)  a new BASIX certificate if the current BASIX certificate is no longer consistent with the development.
(4)  In this section—
biodiversity credits information, in relation to a modification application, means the reasonable steps taken to obtain the like-for-like biodiversity credits required to be retired under a biodiversity development assessment report if different biodiversity credits are proposed to be used as offsets in accordance with the variation rules under the Biodiversity Conservation Act 2016.
101   Exception for Penrith Lakes Development Corporation development consents
(1)  This section applies to a modification application that relates to a Penrith Lakes Development Corporation development consent if the modification relates only to part of the land to which the development consent applies.
(2)  The requirement for the owner’s consent under section 98 is a requirement for the consent of the owner of the part of the land to which the modification relates only.
(3)  In this section—
Penrith Lakes Development Corporation development consent means the development consents DA2, DA3 and DA4 granted to the Penrith Lakes Development Corporation Limited in relation to land to which State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 5 applies on 24 February 1987, 27 June 1995 and 9 September 1998, respectively.
s 101: Am 2022 (40), Sch 1[23].
102   Modification applications for residential apartment development consents
(1)  A modification application under the Act, section 4.55(2) or 4.56(1), where the original development application was required to be accompanied by a statement by a qualified designer under section 29, must be accompanied by—
(a)  the additional fee specified in Schedule 4, and
(b)  a statement by a qualified designer.
(2)  The statement must—
(a)  verify that the qualified designer designed, or directed the design of, the modification of the development, and
(b)  verify if the qualified designer designed, or directed the design of, the development for which the original development consent was granted (the original development), and
(c)  explain how the development addresses—
(i)  the design quality principles, and
(ii)  the objectives in the Apartment Design Guide, and
(d)  verify that the modification does not—
(i)  diminish or detract from the design quality of the original development, or
(ii)  compromise the design intent of the original development.
(3)  If the modification application is accompanied by a BASIX certificate for a building, the design quality principles do not need to be addressed to the extent to which they aim—
(a)  to reduce consumption of mains-supplied potable water or greenhouse gas emissions in the use of—
(i)  the building, or
(ii)  the land on which the building is located, or
(b)  to improve the thermal performance of the building.
(4)  If a statement by the qualified designer does not verify that the qualified designer designed, or directed the design of, the original development, the consent authority must refer the modification application to the relevant design review panel, if any, for advice.
(5)  The relevant design review panel must advise whether the modification—
(a)  diminishes or detracts from the design quality of the original development, or
(b)  compromises the design intent of the original development.
(6)  The consent authority may refer a modification application to the relevant design review panel.
(7)  Subsections (4) and (6) do not apply to a modification application for State significant development.
(8)  The additional fee payable for a modification application that is referred to a relevant design review panel for advice is specified in Schedule 4.
103   Modification applications for mining and petroleum development consents
(1)  This section applies to an application under the Act, section 4.55(2), to modify a development consent that relates to mining or petroleum development on land—
(a)  shown on the Strategic Agricultural Land Map, or
(b)  subject to a site verification certificate.
(2)  The application must be accompanied by—
(a)  for development on land shown on the Strategic Agricultural Land Map as critical industry cluster land—a current gateway certificate that applies to the development to be carried out under the modified consent, or
(b)  for development on other land—
(i)  a current gateway certificate that applies to the development to be carried out under the modified consent, or
(ii)  a site verification certificate certifying that the land on which the development will be carried out is not biophysical strategic agricultural land.
(3)  To avoid doubt, State Environmental Planning Policy (Resources and Energy) 2021, Part 2.4, other than Divisions 2 and 5, applies, with necessary modifications, to an application to modify a development consent as if it were a development application.
(4)  To avoid doubt, a site verification certificate or gateway certificate for the purposes of this section may be issued in relation to the part of the land or the part of the development to which the modification relates, rather than the whole of the land or the whole development to which the consent relates.
s 103: Am 2022 (40), Sch 1[24].
104   Consent authority may request additional information from applicant
(1)  A consent authority that receives a modification application may request additional information about the development from the applicant.
(2)  A consent authority’s request must—
(a)  be made through the NSW planning portal, and
(b)  specify a reasonable period within which the additional information must be given to the consent authority, and
(c)  specify the number of days in the assessment period that have elapsed, and
(d)  inform the applicant that the assessment period ceases to run, in accordance with Part 4, Division 4, during the period between—
(i)  the request, and
(ii)  the day on which the applicant provides the additional information or notifies, or is taken to have notified, the consent authority that the information will not be provided.
(3)  The applicant may, using the NSW planning portal, notify the consent authority that the applicant will not provide the additional information.
(4)  The applicant is taken to have notified the consent authority that the applicant will not provide the additional information if the applicant has not provided the information by the end of—
(a)  the period specified under subsection (2)(b), or
(b)  a further period allowed by the consent authority.
(5)  In this section—
additional information, in relation to a modification application, means information the consent authority considers necessary to properly consider the modification application.
Division 2 Notification of modification applications
105   Notice of modification applications involving minimal environmental impact
(1)  This section applies to—
(a)  a modification application under the Act, section 4.55(1A), and
(b)  a modification application under the Act, section 4.56, if the modification is, in the consent authority’s opinion, of minimal environmental impact.
(2)  If a modification application is required by a community participation plan to be notified or advertised and the development consent was granted by the Court on appeal, the modification application must be notified or advertised by the consent authority to which the original development application was made.
(3)  The consent authority must, for a modification application referred to in subsection (1)(b), notify the Court of—
(a)  the way in which the application was notified or advertised, and
(b)  the period for submissions required by the community participation plan, and
(c)  the period during which the application was notified or advertised.
(4)  This section does not apply to State significant development.
106   Notice of modification applications for designated development, State significant development and other development
(1)  This section applies to a modification application under the Act, section 4.55(2) or 4.56(1) if the original development application was for—
(a)  designated development, or
(b)  State significant development, or
(c)  the following development, if the original development application was made to a consent authority other than a council—
(i)  nominated integrated development,
(ii)  threatened species development,
(iii)  Class 1 aquaculture development.
(2)  As soon as practicable after a modification application is lodged, the consent authority must—
(a)  publish a notice on its website that contains the following information—
(i)  a brief description of the development consent, the land to which it relates and the details of the modification sought,
(ii)  a statement that written submissions about the modification may be made to the consent authority during the public exhibition period required under the Act,
(iii)  a statement that, if the application is approved, there is no right of appeal to the Court by an objector, and
(b)  give the notice to each person who made a submission in relation to the original development application.
(3)  If an application under the Act, section 4.56 relates to development consent granted by the Court on appeal, the consent authority or council, as the case requires, must notify the Court of the day on which notice of the application is published under subsection (2)(a).
107   Notice of other modification applications
(1)  This section applies to—
(a)  a modification application under the Act, section 4.55(2) to which section 106 does not apply, and
(b)  a modification application under the Act, section 4.56(1) to which sections 105 and 106 do not apply.
(2)  An application must be notified or advertised—
(a)  for the minimum period specified in the Act, Schedule 1, clause 10, and
(b)  otherwise in the same way as the original development application was notified or advertised.
(3)  If an application relates to a development consent that was granted by the Court on appeal, the application must be notified or advertised in accordance with this section by the consent authority to which the original development application was made.
(4)  The consent authority must, for an application referred to in subsection (1)(b), notify the Court of—
(a)  the way in which the application was notified or advertised, and
(b)  the period for submissions required by the community participation plan, and
(c)  the period during which the application was notified or advertised.
108   Notice not required in certain circumstances
(1)  This section applies to a modification application under the Act if the original development application was for the following—
(a)  nominated integrated development,
(b)  threatened species development,
(c)  Class 1 aquaculture development.
(2)  The consent authority may decide not to comply with section 105, 106 or 107 (the relevant section) in relation to an amended modification application if the consent authority—
(a)  complied with the relevant section in relation to the modification application (the original modification application) before it was amended, and
(b)  considers that the amended modification application differs from the original modification application in minor ways only.
(3)  Compliance with the relevant section in relation to the original modification application is taken to be compliance in relation to the amended modification application.
(4)  The consent authority must give written notice to the applicant of its decision under this section no later than the notice of the determination of the amended modification application.
109   Notification of concurrence authorities and approval bodies
(1)  As soon as practicable after a modification application under the Act, section 4.55(1) or (1A) is lodged, the consent authority must give a copy of the application to—
(a)  if the modification affects a condition imposed by a concurrence authority—the concurrence authority, and
(b)  if the modification affects the general terms of approval of an approval body—the approval body.
(2)  As soon as practicable after a modification application under the Act, section 4.55(2) is lodged with a consent authority, the consent authority must give a copy of the application to each concurrence authority and approval body for the development to which the application relates.
(3)  A consent authority is not required to comply with this section if, within 14 days after the modification application is lodged—
(a)  the consent authority rejects the application, or
(b)  the application is withdrawn.
110   Fees payable for notice of modification applications
(1)  The additional fee payable for a modification application in relation to which notice is required to be given under the Act, section 4.55(2) or 4.56(1) is specified in Schedule 4.
(2)  The fee is not payable for notice given on the NSW planning portal.
111   Notification of amended modification applications
(1)  This section applies if notice of a modification application is given under this Division and the modification application is subsequently amended under Division 3.
(2)  The notice of the modification application must be updated to include details of the amendment.
112   Consent authority to notify or publicly exhibit modification applications
A requirement under the Act or this Division to notify or publicly exhibit a modification application must be carried out by—
(a)  if the original development consent was granted by the Court—the consent authority to which the original development application was made, or
(b)  if the original development consent was granted or deemed to be refused by a Sydney district or regional planning panel—the council or councils of the area in which the development will be carried out, or
(c)  if the development consent was granted by the Court on appeal and the original development consent was granted or deemed to be refused by a Sydney district or regional planning panel—the council or councils of the area in which the development will be carried out, or
(d)  otherwise—the consent authority to which the modification application is made.
Division 3 Amendment, rejection and withdrawal of modification applications
113   Amendment of modification application
(1)  An applicant may, at any time before a modification application is determined, apply to the consent authority for an amendment to the modification application.
(2)  The application must be made on the NSW planning portal.
(3)  If the amendment will result in a change to the proposed modification, the application must contain details of the change, including the name, number and date of any plans that have changed, to enable the consent authority to compare the development with the modification originally proposed.
(4)  The consent authority may, through the NSW planning portal, approve or reject the application.
(5)  If the consent authority approves the amendment, the modification application is taken to be lodged on the day on which the applicant applied for the amendment if the consent authority—
(a)  considers the amendment not to be minor, and
(b)  notifies the applicant, by the NSW planning portal, that the later day applies.
(6)  A requirement to use the NSW planning portal under this section does not apply if the modification application is subject to proceedings in the Court.
s 113: Am 2022 (142), Sch 1[4].
114   Rejection of modification applications
(1)  A consent authority may reject a modification application for development other than State significant development within 14 days after receiving the application if—
(a)  the application is illegible or unclear about the modification sought, or
(b)  the application does not specify the conditions of the development consent proposed to be modified, or
(c)  the application does not contain the information and documents required by—
(i)  the approved form, or
(ii)  the Act or this Regulation, or
(d)  for an application for integrated development—the application does not identify all of the approvals required to be obtained, as referred to in the Act, section 4.46, before the development may be carried out.
(2)  A consent authority may reject a modification application for State significant development within 7 days after receiving the application if—
(a)  the application does not contain the information and documents required by—
(i)  the approved form, or
(ii)  the Act or this Regulation, or
(b)  the Planning Secretary considers the application incomplete for reasons given by written notice to the applicant.
(3)  The consent authority must give the applicant written notice of the reasons for rejecting the application.
(4)  A modification application rejected under this section is taken, for the purposes of the Act, never to have been made.
(5)  Immediately after rejecting a modification application for integrated development or development for which concurrence was required, the consent authority must notify each relevant approval body or concurrence authority.
(6)  Subsection (5) applies only if the consent authority has already notified the approval body or concurrence authority under section 109.
115   Withdrawal of applications for modifications
(1)  An applicant for a modification application may, at any time before the application is determined, withdraw the application by giving written notice to the consent authority.
(2)  A modification application withdrawn under this section is taken, for the purposes of the Act, never to have been made.
(3)  Immediately after the withdrawal of a modification application for integrated development or development requiring concurrence, the consent authority must notify each relevant approval body or concurrence authority of the withdrawal.
(4)  Subsection (3) applies only if the consent authority has already notified the approval body or concurrence authority under section 109.
116   Application for extension of development consent
(1)  An application under the Act, section 4.54 for an extension of 1 year must—
(a)  identify the development consent to which it relates, and
(b)  indicate why the consent authority should extend the time.
(2)  The application must be submitted on the NSW planning portal.
117   Notice of proposed revocation or modification of consent
(1)  For the purposes of the Act, section 4.57(3)(a)(ii), the Secretary of the Department of Customer Service is prescribed in relation to a proposed revocation or modification of a development consent that 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 notice of the proposed revocation or modification of a development consent must contain the reasons for the proposed revocation or modification.
Division 4 Determination of modification applications
118   Notice of determination of application to modify development consent
(1)  Notice of the determination of a modification application must be given to the applicant, through the NSW planning portal, as soon as practicable after the determination.
(2)  Notice of the determination of an application to grant a modification of a development consent must contain a copy of the relevant plans endorsed by the consent authority.
(3)  If the determination is made subject to a condition or by refusing the application, the notice must—
(a)  indicate the consent authority’s reasons for the imposition of the condition or the refusal, and
(b)  specify any right the applicant has to request a review or to appeal against the determination under the Act, Part 8.
(4)  If a modification application applies to land owned by a Local Aboriginal Land Council, a notice of the determination must also be given to the New South Wales Aboriginal Land Council.
(5)  A consent authority that grants an application for modification of a development consent must give a modified development consent to the applicant that complies with any requirements specified by the Planning Secretary in relation to the form and content of modified development consents.
119   Effect of failure to determine modification applications
(1)  For the purposes of the Act, sections 4.55(6) and 4.56(3), a consent authority is taken to have refused a modification application if it does not determine the application within 40 days after the modification application is lodged.
(2)  A later determination by the consent authority does not prejudice or affect the continuance or determination of a related appeal.
(3)  If the consent authority makes a later determination to grant consent, the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have a related appeal withdrawn at any time before the appeal is determined.
(4)  The 40-day period specified in subsection (1) ceases to run during the period between the day on which a consent authority requests additional information from an applicant under section 104 and the earlier of—
(a)  the day on which the information is given to the consent authority, or
(b)  the day on which the applicant gives, or is taken to have given, written notice to the consent authority that the information will not be given.
(5)  Subsection (4) applies only if the consent authority’s request is made within 25 days after the day on which the modification application is lodged.
(6)  In this section—
related appeal means an appeal under the Act, section 8.9 against a determination taken to have been made under subsection (1).
Part 6 Complying development—the Act, Div 4.5 and s 4.64
Division 1 Applications for complying development certificates
120   Application for complying development certificate
(1)  An application for a complying development certificate must—
(a)  be in the approved form, and
(b)  contain all the information and documents required by—
(i)  the approved form, and
(ii)  the Act and this Regulation, and
(c)  be lodged on the NSW planning portal.
(2)  The applicant must be notified, through the NSW planning portal, that the application for a complying development certificate has been lodged.
(3)  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 the 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).
121   Plans and drawings to accompany complying development certificate application
(1)  An application for a complying development certificate must be accompanied by the following—
(a)  a site plan of the land,
(b)  a drawing of the development.
(2)  The site plan of the land must be drawn to a suitable scale and indicate the following—
(a)  the location, boundary dimensions, site area and north point of the land,
(b)  existing vegetation and trees on the land,
(c)  the location and uses of existing buildings on the land,
(d)  existing levels of the land in relation to buildings and roads,
(e)  the location and uses of buildings on sites adjoining the land,
(f)  the location of any registered easement on the land.
(3)  The drawing of the development must indicate the following—
(a)  the location of proposed buildings or works, including extensions or additions to existing buildings or works, in relation to the land’s boundaries and adjoining development,
(b)  the floor plans of proposed buildings showing the layout, partitioning, room sizes and intended uses of each part of the building,
(c)  the building envelope of the development,
(d)  elevations and sections showing external finishes and height of proposed buildings, other than temporary structures,
(e)  elevations and sections showing—
(i)  the height of proposed temporary structures, and
(ii)  the materials proposed to be used for the structures, using the relevant abbreviations,
(f)  proposed finished levels of the land in relation to existing and proposed buildings and roads,
(g)  proposed parking arrangements, entry and exit points for vehicles and provision for movement of vehicles on the site, including dimensions if appropriate,
(h)  proposed landscaping and treatment of the land, indicating plant types and their height and maturity,
(i)  proposed methods of draining the land,
(j)  if the application is accompanied by a BASIX certificate—the other matters required by a relevant BASIX certificate.
122   Complying development involving building work
(1)  This section applies to an application for a complying development certificate that relates to development involving building work, including building work in relation to—
(a)  a dwelling house, or
(b)  a building or structure that is ancillary to a dwelling house.
(2)  An application for a complying development certificate must contain the following—
(a)  a detailed description of the development,
(b)  building work plans and specifications.
(3)  The detailed description of the development must indicate the following—
(a)  for each new building—
(i)  the number of storeys in the building, including underground storeys, and
(ii)  the gross floor area of the building in square metres, and
(iii)  the gross site area of the land on which the building will be erected in square metres, and
(iv)  the site coverage, that is, the percentage of the site area that will be covered by a building,
(b)  for each new residential building—
(i)  the number of existing dwellings on the land on which the new building will be erected, and
(ii)  the number of the existing dwellings that will be demolished in connection with the erection of the new building, and
(iii)  the number of dwellings that will be in the new building, and
(iv)  whether the new building will be attached to an existing building, and
(v)  whether the new building will be attached to another new building, and
(vi)  whether the land contains a dual occupancy, and
(vii)  the materials to be used in the construction of the new building, using the relevant abbreviations.
(4)  The building work plans and specifications must contain the following—
(a)  detailed building work plans, drawn to a suitable scale and consisting of a block plan and a general plan, that show—
(i)  a plan of each floor section, and
(ii)  a plan of each elevation of the building, and
(iii)  the levels of the lowest floor, an unbuilt yard or area that belongs to the lowest floor and the adjacent ground, and
(iv)  the height, design, construction and provision for fire safety and fire resistance, if any,
(b)  specifications for the development that—
(i)  describe the construction and the materials to be used to construct the building, and
(ii)  describe the method of drainage, sewerage and water supply, and
(iii)  state whether the materials to be used are new or second-hand and contain details of any second-hand materials to be used,
(c)  if the development involves building work to alter, expand or rebuild an existing building—a scaled plan of the existing building,
(d)  for BASIX development, or BASIX optional development if the application is accompanied by a BASIX certificate—the other matters required by a relevant BASIX certificate.
(5)  An application for a complying development certificate must also contain the following—
(a)  if the building work involves a performance solution under the Building Code of Australia—a report about the performance solution prepared in accordance with the requirements set out in A2.2(4) of the Building Code of Australia,
(b)  a description of any building product or system accredited under the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 for the purposes of the Act, section 4.28(4),
(c)  copies of compliance certificates to be relied on.
123   Fire safety requirements
(1)  An application for a complying development certificate for development involving a change of use of a building must be accompanied by—
(a)  a list of the Category 1 fire safety provisions that currently apply to the existing building, and
(b)  a list of the Category 1 fire safety provisions that will apply to the building after the change of use.
(2)  Subsection (1) does not apply to—
(a)  a dwelling house, or
(b)  a building or structure that is ancillary to a dwelling house, or
(c)  a temporary structure.
(3)  An application for a complying development certificate for development that involves building work must be accompanied by—
(a)  a list of the existing fire safety measures provided in relation to the land or an existing building on the land, and
(b)  a list of the fire safety measures to be provided in relation to the land and buildings on the land as a consequence of the building work.
(4)  Subsection (3) does not apply to work in relation to—
(a)  a dwelling house, or
(b)  a building or structure that is ancillary to a dwelling house.
(5)  An application for a complying development certificate for fire alarm communication link works must be accompanied by—
(a)  a plan that indicates the location of the new fire alarm communication link and associated works, and
(b)  a document that describes the design, construction and mode of operation of the new fire alarm communication link and associated works.
(6)  An application for a complying development certificate for an alteration to a hydraulic fire safety system must be accompanied by—
(a)  a plan that indicates the location of the alteration and associated works, and
(b)  a document that describes—
(i)  the required pressure and flow characteristics of the hydraulic fire safety system that will be altered, and
(ii)  the pressure and flow characteristics that will be available from the town main following mains pressure reduction by or on behalf of the relevant water utility, and
(iii)  the design, construction and performance of the alteration and associated works.
(7)  In this section—
alteration to a hydraulic fire safety system has the same meaning as in the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.
124   Complying development involving subdivision
(1)  An application for a complying development certificate for development involving subdivision work must be accompanied by subdivision work plans and specifications.
(2)  The subdivision work plans and specifications must contain the following—
(a)  details of the existing and proposed subdivision pattern, including the number of lots and the location of roads,
(b)  details about the public authorities that have been consulted about the provision of utility services to the land,
(c)  detailed engineering plans about earthworks, roadworks, road pavement, road furnishings, stormwater drainage, water supply works, sewerage works, landscaping works and erosion control works,
(d)  copies of compliance certificates to be relied on.
125   Complying development involving telecommunications facilities or electricity power lines
An application for a complying development certificate for development for the purposes of a telecommunications facility or electricity power lines must be accompanied by detailed engineering plans.
126   Complying development in certain areas
(1)  An application for a complying development certificate for development on land in an Activation Precinct under State Environmental Planning Policy (Precincts—Regional) 2021, Chapter 3 must be accompanied by a current Activation Precinct certificate issued under that Chapter.
(2)  Subsection (1) does not apply to an application made by a public authority, except the Development Corporation within the meaning of State Environmental Planning Policy (Precincts—Regional) 2021, Chapter 3.
(3)  An application for a complying development certificate for development on land in the Western Sydney Aerotropolis under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 4 must be accompanied by a current Aerotropolis certificate issued under that Chapter.
(4)  An application for a complying development certificate for development on land in the Moorebank Freight Intermodal Precinct under State Environmental Planning Policy (Transport and Infrastructure) 2021, Schedule 13, sections 1–3 must be accompanied by a current traffic certificate issued under that Policy, Chapter 6.
s 126: Am 2022 (40), Sch 1[22] [25]. Subst 2022 (244), Sch 1[1].
127   (Repealed)
s 127: Am 2022 (40), Sch 1[22] [26]. Rep 2022 (244), Sch 1[1].
128   Traffic generating complying development
(1)  This section applies to an application for a complying development certificate for the following development—
(a)  development for a purpose specified in State Environmental Planning Policy (Infrastructure) 2021, section 3.38(1) that will result in a school being able to accommodate at least 50 additional students,
(b)  development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Part 5A for the following purposes—
(i)  food and drink premises with a gross floor area of 300m2 or more,
(ii)  shops or wholesale supplies with a gross floor area of 500m2 or more,
(iii)  commercial premises with a gross floor area of 2,500m2 or more,
(iv)  industries with a gross floor area of 5,000m2 or more,
(v)  depots or warehouses or distribution centres with a gross floor area of 8,000m2 or more,
(vi)  the construction, installation or alteration of a drive through facility as referred to in Division 1, Subdivision 11A of that Part,
(vii)  car parks of 50 car parking spaces or more,
(c)  development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Part 5A for the following purposes, if the development involves 50 or more vehicles per hour—
(i)  community facilities,
(ii)  health consulting rooms,
(iii)  information and education facilities,
(iv)  medical centres,
(v)  storage premises,
(vi)  vehicle repair stations,
(vii)  veterinary hospitals.
(2)  An application for a complying development certificate must be accompanied by a certificate issued by the relevant roads authority certifying that any impacts on the surrounding road network as a result of the development—
(a)  are acceptable, or
(b)  will be acceptable if the requirements specified in the certificate issued by the relevant roads authority are met.
(3)    (Repealed)
s 128: Am 2022 (40), Sch 1[27]–[29].
129   Complying development on contaminated land
(1)  This section applies to an application for a complying development certificate for complying development under—
(2)  The application must specify whether the land on which the development will be carried out—
(a)  is or was 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, 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 the Contaminated Land Management Act 1997, section 60.
(3)  If the development will be carried out on land specified in subsection (2), the application must be accompanied by a statement by a qualified person.
(4)  The statement must certify that the land has been investigated in accordance with guidelines made by the Environment Protection Authority under the Contaminated Land Management Act 1997, section 105, as in force from time to time.
(5)  The statement must certify that the land—
(a)  is suitable for the intended purpose of the development, considering the contamination status of the land, or
(b)  will be suitable if the remediation works specified in the statement are carried out.
(6)  This section does not apply to complying development carried out under the complying development provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 5 in the Lease Area, within the meaning of that Chapter.
(7)  In this section—
qualified person means a person who has a certification specified in the Contaminated Land Consultant Certification Policy, published by the Environment Protection Authority in January 2018.
s 129: Am 2022 (40), Sch 1[22] [30] [31]; 2022 (244), Sch 1[2].
129A   Design statement for industrial and business buildings under Codes SEPP
(1)  This section applies to an application for a complying development certificate for complying development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Part 5A that relates to development for a specified purpose on land in Zone B5, B6 or B7.
(2)  The statement must—
(a)  be in the approved form, and
(b)  verify that the qualified designer designed, or directed the design of, the development, and
(c)  explain how the design is consistent with the relevant design criteria set out in the Business Zone Design Guidelines published on the NSW planning portal from time to time.
(3)  In this section—
specified purpose has the same meaning as in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Part 5A.
s 129A: Ins 2022 (40), Sch 1[32].
130   Other documents to accompany complying development certificate application
(1)  An application for a complying development certificate for development involving the erection of a wall to a boundary that has a wall less than 0.9m from the boundary must be accompanied by a report by a professional engineer that outlines the proposed method of supporting the adjoining wall.
(2)  An application for a complying development certificate for development involving the demolition or removal of a wall to a boundary that has a wall less than 0.9m from the boundary must be accompanied by a report by a professional engineer that outlines the proposed method of maintaining support for the adjoining wall after the demolition or removal.
(3)  An application for a complying development certificate for development involving the erection of a temporary structure must be accompanied by the following—
(a)  a document that specifies the live and dead loads the temporary structure is designed to meet,
(b)  a list of the fire safety measures to be provided in relation to the use of the temporary structure,
(c)  for a temporary structure that will be used as an entertainment venue where the building work involves a performance solution for a requirement set out in Part B1 or NSW Part H102 in Volume 1 of the Building Code of Australia—a report about the performance solution prepared in accordance with the requirements set out in A2.2(4) of the Building Code of Australia,
(d)  a document that describes any building product or system accredited under the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 for the purposes of the Act, section 4.28(4),
(e)  copies of compliance certificates to be relied on.
(4)  An application for a complying development certificate for development involving the following uses of a building must be accompanied by a statement specifying the maximum number of persons proposed to occupy, at any one time, the part of the building to which the use applies—
(a)  an entertainment venue,
(b)  a function centre,
(c)  a pub,
(d)  a registered club,
(e)  a restaurant or cafe.
(5)  An application for a complying development certificate for development required, by a development standard, to be set back from a registered easement must be accompanied by—
(a)  a copy of the official search under the Real Property Act 1900, Part 11A for the lot on which the development will be carried out, and
(b)  if the land is subject to a registered easement—a title diagram for the lot and each adjoining lot that benefits from the easement.
(6)  An application for a complying development certificate for development involving the erection or alteration of the following must be accompanied by a design statement—
(a)  a dual occupancy,
(b)  a manor house,
(c)  multi dwelling housing (terraces).
(7)  In this section—
accredited designer means—
(a)  a qualified designer, or
(b)  a person accredited as a building designer by the Building Designers Association of Australia.
design statement means a statement by an accredited designer that—
(a)  verifies that the designer designed, or directed the design of, the development, and
(b)  explains how the design is consistent with the relevant design criteria set out in the Low Rise Housing Diversity Design Guide for Development Applications published by the Department in July 2020.
professional engineer has the same meaning as in the Building Code of Australia.
131   BASIX development and certificates
(1)  An application for a complying development certificate for BASIX development must be accompanied by—
(a)  a relevant BASIX certificate for the development issued no earlier than 3 months before the day on which the application is lodged, and
(b)  the other matters required by the BASIX certificate.
(2)  If the development involves the alteration of a BASIX building that contains more than 1 dwelling, a separate BASIX certificate is required for each dwelling.
(3)  An application for a complying development certificate for BASIX optional development that is accompanied by a BASIX certificate must be accompanied by the other matters required by the BASIX certificate.
(4)  If an application for a complying development certificate is amended before it is determined and the amendment results in the development differing materially from the description contained in the BASIX certificate that accompanied the original application, the amendment must be accompanied by a new BASIX certificate that takes account of the amendment.
(5)  If the original application for a complying development certificate was accompanied by a BASIX certificate, the original application may be amended by lodging on the NSW planning portal—
(a)  a new BASIX certificate to replace the current BASIX certificate for the original application, and
(b)  if a new document is required or a document that accompanied the original application requires amendment—the new or amended document.
Division 2 Determination of applications for complying development certificates
132   Certifier may require additional information
(1)  A certifier may request additional information about the development from the applicant for a complying development certificate that the certifier considers necessary to properly consider the application.
(2)  A certifier may require the additional information to be obtained from a properly qualified person.
(3)  This section does not affect the certifier’s duty to determine an application for a complying development certificate.
133   Time for determining application for complying development certificate
For the purposes of the Act, section 4.28(8), the determination of an application for a complying development certificate must be completed within—
(a)  for a complying development certificate to which section 134 applies—20 days, or
(b)  otherwise—10 days.
134   Notice to neighbours and councils
(1)  This section applies to a complying development certificate in relation to development on relevant land that is—
(a)  specified under an environmental planning instrument and involves a new dwelling or an addition to an existing dwelling, or
(c)  specified in State Environmental Planning Policy (Housing) 2021, Chapter 3, Parts 1 or 2.
(2)  This section applies only if the development will 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.
(3)  A certifier must not issue a complying development certificate until at least 14 days after the certifier has given written notice to—
(a)  if the development will be on land in a rural or residential zone—each neighbour on land in a rural or residential zone, and
(b)  if the certifier is not the council for the area in which the development will be carried out—the council.
(4)  The notice must contain the following—
(a)  the name, address and telephone number 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 Act,
(c)  the name, address and telephone number of the applicant for the complying development certificate,
(d)  the address of the land on which the development will be carried out,
(e)  a description of the development to which the application relates,
(f)  the name of each relevant environmental planning instrument, including the relevant complying development code,
(g)  the site plan of the land, as referred to in section 121, that accompanied the application,
(h)  the day on which the application was received by the certifier,
(i)  a statement that, once the application is determined, the council is required to make a copy of the determination available for inspection.
(5)  In this section—
applicable local government area means the local government areas of Bayside, City of Blacktown, City of Blue Mountains, Burwood, Camden, City of Campbelltown, Canada Bay, Canterbury-Bankstown, Cumberland, City of Fairfield, Georges River, City of Hawkesbury, Hornsby, Hunter’s Hill, Inner West, Ku-ring-gai, Lane Cove, City of Liverpool, Mosman, North Sydney, Northern Beaches, City of Parramatta, City of Penrith, City of Randwick, City of Ryde, Strathfield, Sutherland Shire, City of Sydney, The Hills Shire, Waverley, City of Willoughby, Wingecarribee, Wollondilly or Woollahra.
neighbour means the occupier of a dwelling located on a lot that has a boundary within 20 metres of the boundary of the lot on which the work will be carried out.
relevant land means land in an applicable local government area that is not in—
(a)  an urban release area identified in a local environmental plan that adopts the applicable mandatory provisions of the Standard Instrument, or
(c)  an area to which State Environmental Planning Policy (Precincts—Regional) 2021, Appendix 1, 4 or 5 applies.
s 134: Am 2022 (40), Sch 1[33] [34].
135   Council to be notified of significant fire safety issues
(1)  This section applies to a certifier if—
(a)  an application is 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)  between receiving the application and issuing the complying development certificate, the certifier becomes aware, when carrying out an inspection or otherwise, of a significant fire safety issue with the building.
(2)  Within 2 days after becoming aware of a significant fire safety issue, the certifier must give written notice to the council that describes the fire safety issue and the parts of the building affected by the issue.
(3)  However, the certifier is not required to give notice if the fire safety issue is being addressed by—
(a)  the development, or
(b)  a fire safety order under the Act, Schedule 5, Part 2, or
(c)  another development consent that affects the building.
(4)  To avoid doubt, this section extends to a council that is a certifier.
Division 3 Issue of complying development certificates
136   Form of complying development certificate
(1)  A complying development certificate must contain the following—
(a)  the name of the certifier that issued the certificate,
(b)  if the certifier is a registered body corporate—the name of the individual who issued the certificate,
(c)  if the certifier is a registered certifier—
(i)  the registration number of the certifier, and
(ii)  if the certifier is a registered body corporate—the registration number of the individual who issued the certificate,
(d)  the signature of the individual who issued the certificate,
(e)  the date of the certificate,
(f)  the day on which the certificate lapses,
(g)  a statement that the development is complying development and, if carried out as specified in the certificate, will comply with—
(i)  all the development standards applicable to the development, and
(ii)  other requirements of this Regulation relating to the issue of the certificate,
(h)  if the development involves the erection of a building—the class of the building under the Building Code of Australia,
(i)  if a report about a performance solution is required under section 137(3)—the following details of the report—
(i)  the title of the report,
(ii)  the date of the report,
(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,
(v)  if the person referred to in subparagraph (iv) is an accredited practitioner (fire safety) and a registered certifier—the accredited practitioner’s registration number,
(j)  if any of the building work is exempt from compliance with the Building Code of Australia under the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021—the details of the exemption,
(k)  the conditions imposed on the development under this Regulation.
(2)  A complying development certificate must also contain—
(a)  a detailed list of the particular plans, reports, studies or other documents relied on by the certifier to determine the application for the certificate, including information about how the documents can be accessed, and
(b)  a copy of the relevant plans endorsed by the certifier.
(3)  A complying development certificate for development that is complying development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 must also specify—
(a)  the land use zone in which the land is located, and
(b)  if the land is not zoned under an environmental planning instrument made as provided by the Act, section 3.20(2), the equivalent named land use zone for the land under that Policy, and
(c)  if the development is carried out under a complying development code under that Policy—the name of the code.
(4)  A complying development certificate for the erection of a building must be accompanied by the fire safety schedule for the building, if required under the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.
(5)  Subsection (4) does not apply to—
(a)  the erection of a building that will be a class 1a or class 10 building when completed, or
(b)  the erection of a temporary structure.
(6)  A certifier must not issue a compliance certificate that does not comply with subsection (1), (2)(b) or (4).
Maximum penalty (subsection (6))—
(a)  for non-compliance with subsection (1) or (2)(b)—
(i)  300 penalty units for a corporation, or
(ii)  150 penalty units for an individual, and
(b)  for non-compliance with subsection (4)—
(i)  600 penalty units for a corporation, or
(ii)  300 penalty units for an individual.
137   Compliance with Building Code of Australia
(1)  A certifier must not issue a complying development certificate for building work unless the building, not including 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)  A complying development certificate for complying development that is required to comply with the deemed-to-satisfy provisions in Volume 1, or section 3 of Volume 2, of the Building Code of Australia, must not authorise compliance with a performance solution to the performance requirements corresponding to the deemed-to-satisfy provisions.
(3)  A certifier must not issue a complying development certificate for building work, or development comprising internal alterations to, or a change of building use for, an existing building, that involves a performance solution under the Building Code of Australia unless the certifier—
(a)  has obtained or been given a performance solution report, 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.
(4)  A certifier must not issue a complying development certificate unless the certifier has endorsed the building work plans and specifications and other documents that accompanied the application for the certificate or were submitted to the certifier under Division 1 with evidence of the issue of the certificate.
Maximum penalty (subsection (4))—
(a)  300 penalty units for a corporation, or
(b)  150 penalty units for an individual.
(5)  A performance solution report referred to in subsection (3) that relates to a fire safety requirement must be prepared by or on behalf of—
(a)  for a prescribed report—a person who is both 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 section—
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 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, or
(b)  the safety of persons if there is a fire, or
(c)  the prevention, detection or suppression of fire.
prescribed report means a report about a performance solution for a requirement set out in EP1.4, EP2.1, EP2.2, DP4 and DP5 in Volume 1 of the Building Code of Australia for—
(a)  a class 9a building that will have a total floor area of 2,000 square metres or more, or
(b)  a building, other than a class 9a building, that will have a fire compartment, as defined in the Building Code of Australia, with a total floor area of more than 2,000 square metres, or
(c)  a building, other than a class 9a building, that will have a total floor area of more than 6,000 square metres.
138   Complying development under Transport and Infrastructure SEPP, Chapter 3
(1)  A certifier must not issue a complying development certificate for the following development unless the certifier has been given a written statement by a qualified designer verifying that the development applies the design quality principles set out in State Environmental Planning Policy (Transport and Infrastructure) 2021, Schedule 8—
(a)  development for a purpose specified in State Environmental Planning Policy (Transport and Infrastructure) 2021, section 3.40(1)(a) or 3.41(2)(e) that involves the construction of a new building with a building height of more than 12 metres,
(b)  development for a purpose specified in State Environmental Planning Policy (Transport and Infrastructure) 2021, section 3.40(1)(a) or 3.41(2)(e) that involves an alteration to an existing building that will result in a building height of more than 12 metres.
(2)  A certifier must not issue a complying development certificate for development that is identified as complying development under State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 3 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 erection or alteration of improvements on land in a mine subsidence district—the Chief Executive of Subsidence Advisory NSW has given written approval of the development.
(3)  In this section—
mine subsidence district has the same meaning as in the Coal Mine Subsidence Compensation Act 2017.
s 138: Am 2022 (40), Sch 1[35]–[37]; 2022 (333), sec 3(2) (3).
139   Site inspection required
(1)  A certifier must not issue a complying development certificate for development unless a council or registered certifier has carried out an inspection of the site of the development.
(2)  If the development affects an existing building that is a class 1b, 2, 3, 4, 5, 6, 7, 8 or 9 building, an inspection of the site of the development must include an inspection of—
(a)  the parts of the building affected by the development, and
(b)  the egress routes from those parts of the building.
(3)  This section does not apply to a complying development certificate that relates only to fire alarm communication link works.
140   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 section 139.
(2)  If the council or registered certifier required to make the record is not the certifier in relation to the issue of the complying development certificate, the council or registered certifier must, within 2 days after the carrying out of the inspection, give a copy of the record to the certifier through the NSW planning portal.
(3)  The record must contain 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 day on which the inspection was carried out,
(e)  if the inspection was carried out by a council—
(i)  the name of the council, and
(ii)  the name and signature of the individual who carried out the inspection,
(f)  if the inspection was carried out by a registered certifier—
(i)  the name and registration number of the registered certifier, and
(ii)  if the registered certifier is a registered body corporate—the name and registration number of the individual who carried out the inspection,
(g)  details of the current fire safety measures in the existing buildings on the site that will be affected by the development,
(h)  details about whether the plans and specifications accompanying the application for the complying development certificate adequately and accurately depict the existing site conditions,
(i)  details of features of the site, or of a building on the site, that would result in the development—
(i)  not being complying development, or
(ii)  not complying with the Building Code of Australia.
141   Notice of determination of complying development certificate application
(1)  Within 2 days after issuing a complying development certificate, a registered certifier must submit the certificate on the NSW planning portal.
(2)  The fee for submitting a complying development certificate on the NSW planning portal is specified in Schedule 4.
(3)  A certifier must give the applicant notice of the determination of an application for a complying development certificate under the Act, section 4.28(11) through the NSW planning portal.
(4)  Within 2 days after determining an application for a complying development certificate, a registered certifier must give the following to the council using the NSW planning portal—
(a)  the application and the determination,
(b)  the endorsed plans, specifications or other documents that accompanied the application or were submitted to the registered certifier in accordance with Division 1,
(c)  the fire safety schedule for the building, if required under the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021,
(d)  the record of an inspection made for the purposes of section 140 in relation to the issue of the complying development certificate, but only if the inspection was not carried out by the council.
Maximum penalty (subsections (3) and (4))—
(a)  300 penalty units for a corporation, or
(b)  150 penalty units for an individual.
Division 4 Development standards for complying development
142   Development standards for change of building use
The development standards applicable to complying development that involves a change of building use for an existing building include the following requirements—
(a)  the building will, whether or not any building work is carried out—
(i)  contain measures that are adequate, if there is a fire, to facilitate the safe egress of persons from the part of the building affected by the change of building use, and
(ii)  comply with the Category 1 fire safety provisions that apply to the proposed use,
(b)  the fire protection and structural capacity of the building will, on completion of the building work, be appropriate to the proposed use.
143   Development standards for building work involving alteration of existing building
(1)  The development standards applicable to complying development that involves the alteration of an existing building include the following requirements—
(a)  if the building work involves the reconfiguration of an internal part of the building that will be occupied—on completion of the building work, the building will contain measures that are adequate, if there is a fire, to facilitate the safe egress of persons from the reconfigured part of the building,
(b)  the fire protection and structural capacity of the building will, on completion of the building work, not be reduced.
(2)  This section does not apply to development in connection with a change of building use for an existing building.
144   Development standards for erection of temporary structure
The development standards applicable to complying development that involves the erection of a temporary structure include the following requirements—
(a)  the fire protection and structural capacity of the structure will be appropriate to the proposed use of the structure,
(b)  the ground or other surface on which the structure will be erected will be sufficiently firm and level to sustain the structure while in use.
145   Effect of Division
This Division does not affect a requirement for the building work to be carried out in accordance with—
(a)  the plans and specifications to which a complying development certificate relates, and
(b)  the conditions of the complying development certificate.
Division 5 Conditions of complying development certificates
146   Compliance with Building Code of Australia and insurance requirements under Home Building Act 1989
(1)  A complying development certificate for development that involves building work must be issued subject to the following conditions—
(a)  the work must be carried out in accordance with the requirements of the Building Code of Australia,
(b)  for residential building work that requires a contract of insurance under the Home Building Act 1989—a contract of insurance must be in force before the building work authorised to be carried out by the certificate commences.
(2)  A complying development certificate for a temporary structure that is used as an entertainment venue must be issued subject to a condition that the temporary structure must comply with Part B1 and NSW Part H102 in Volume 1 of the Building Code of Australia.
(3)  This section does not limit the other conditions to which a complying development certificate may be subject.
(4)  This section does not apply—
(a)  to the extent to which an exemption from a provision of the Building Code of Australia or a fire safety standard is in force under the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021, or
(b)  to the erection of a temporary building, other than a temporary structure to which subsection (2) applies.
(5)  In this section, a reference to the Building Code of Australia is a reference to the Building Code of Australia as in force on the date on which the application for the relevant complying development certificate is made.
147   Fire safety systems in class 2–9 buildings
(1)  A complying development certificate for building work involving the installation, extension or modification of a relevant fire safety system in a class 2, 3, 4, 5, 6, 7, 8 or 9 building must be issued subject to a condition that the building work must not commence unless—
(a)  plans have been submitted to the principal certifier that show—
(i)  for 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)  for building work involving the extension or modification of the relevant fire safety system—the layout, extent and location of the 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 the design, installation and construction of the relevant fire safety system, and
(ii)  identify the provisions of the Building Code of Australia on which the design of the system is based, and
(c)  the plans and specifications—
(i)  have been certified by a compliance certificate as complying with the relevant provisions of the Building Code of Australia, or
(ii)  have been endorsed by an accredited practitioner (fire safety) as complying with the relevant provisions of the Building Code of Australia, and
(d)  if the plans and specifications were submitted before the complying development certificate was issued—the plans and specifications are endorsed by a certifier with a statement that the certifier is satisfied they correctly identify the relevant performance requirements and deemed-to-satisfy provisions, and
(e)  if the plans and specifications were not submitted before the complying development certificate was issued—the plans and specifications are endorsed by the principal certifier with a statement that the principal certifier is satisfied they correctly identify the relevant performance requirements and deemed-to-satisfy provisions.
(2)  Subsection (1)(c)(ii) does not apply to the extent of an exemption under the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.
(3)  In this section—
relevant fire safety system means the following—
(a)  a hydraulic fire safety system,
(b)  a fire detection and alarm system,
(c)  a mechanical ducted smoke control system.
148   Notice to neighbours of commencement of work
(1)  This section applies to a complying development certificate for development involving—
(a)  the erection of a new building, or
(b)  an addition to an existing building, or
(c)  the demolition of a building.
(2)  This section applies only if the development will 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.
(3)  A complying development certificate must be issued subject to a condition that the person having the benefit of the certificate must give each neighbour written notice of the person’s intention to commence the work authorised by the certificate—
(a)  for development on relevant land—at least 7 days before commencing work, or
(b)  otherwise—at least 2 days before commencing work.
(4)  In this section—
neighbour and relevant land have the same meaning as in section 134.
149   Erection of signs
(1)  This section applies to a complying development certificate for development involving building work, subdivision work or demolition work.
(2)  A complying development certificate must be issued subject to a condition that the requirements of subsections (3) and (4) must be complied with.
(3)  A sign must be erected in a prominent position on a 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 building work and a telephone number on which the principal contractor may be contacted outside working hours, and
(c)  stating that unauthorised entry to the work site is prohibited.
(4)  The sign must be—
(a)  maintained while the building work, subdivision work or demolition work is being carried out, and
(b)  removed when the work is completed.
(5)  This section does not apply in relation to—
(a)  building work, subdivision work or demolition work carried out inside an existing building, if the work does not affect the external walls of the building, or
(b)  Crown building work certified to comply with the Building Code of Australia. under the Act, Part 6.
150   Notification of Home Building Act 1989 requirements
(1)  This section applies to a complying development certificate if—
(a)  the development involves residential building work, and
(b)  the principal certifier is not the council.
(2)  A complying development certificate must be issued subject to a condition that the work is carried out in accordance with the requirements of this section.
(3)  Residential building work must not be carried out unless the principal certifier has given the council written notice of the following—
(a)  for work that requires a principal contractor to be appointed—
(i)  the name and licence number of the principal contractor, and
(ii)  the name of the insurer of the work under the Home Building Act 1989, Part 6,
(b)  for work to be carried out 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 the Home Building Act 1989—the number of the owner-builder permit.
(4)  If the information notified under subsection (3) is no longer correct, further work must not be carried out unless the principal certifier has given the council written notice of the updated information.
(5)  This section does not apply in relation to Crown building work certified to comply with the Building Code of Australia under the Act, Part 6.
151   Fulfilment of BASIX commitments
A complying development certificate for the following development must be issued subject to a condition that each commitment listed in a relevant BASIX certificate must be fulfilled—
(a)  BASIX development,
(b)  BASIX optional development, if the application for the complying development certificate was accompanied by a BASIX certificate.
152   Development involving 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)  prescribed asbestos removal work must be undertaken by a person who conducts a business of asbestos removal work in accordance with the Work Health and Safety Regulation 2017, clause 458 (a licensed person),
(b)  the person having the benefit of the complying development certificate must give the principal certifier a copy of a signed contract with a licensed person before development under the complying development certificate commences,
(c)  the contract must indicate whether asbestos will be removed, and if so, must specify the landfill site, which may lawfully receive asbestos, to which the asbestos will be delivered,
(d)  if the contract indicates that asbestos 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 referred to in the contract has been received by the operator.
(2)  In this section—
asbestos removal work has the same meaning as in the Work Health and Safety Regulation 2017.
friable asbestos has the same meaning as in the Work Health and Safety Regulation 2017.
non-friable asbestos has the same meaning as in the Work Health and Safety Regulation 2017.
prescribed asbestos removal work means asbestos removal work that involves the removal of—
(a)  non-friable asbestos from an area of more than 10 square metres, or
(b)  friable asbestos.
Note 1—
The effect of subsection (1)(a) is that the development will be a workplace to which the Work Health and Safety Regulation 2017 applies while asbestos removal work is being undertaken.
Note 2—
Information on the removal and disposal of asbestos to landfill sites licensed to accept asbestos is available from the Environment Protection Authority.
153   Shoring and adequacy of adjoining property
(1)  This section applies to a complying development certificate for development that involves excavation that extends below the level of the base of the footings of a building, structure or work, including a structure or work in a road or rail corridor, on adjoining land.
(2)  The complying development certificate must be issued subject to a condition that 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)  if necessary, underpin the building, structure or work to prevent damage from the excavation.
(3)  This section does not apply if—
(a)  the person having the benefit of the complying development certificate owns the adjoining land, or
(b)  the owner of the adjoining land has given written consent to the condition not applying.
154   Traffic generating development
If an application for a complying development certificate is required to be accompanied by a certificate of the relevant roads authority under section 128, the complying development certificate must be issued subject to a condition that any requirements specified in the certificate of the relevant roads authority must be complied with.
155   Development on contaminated land
If an application for a complying development certificate is required to be accompanied by a statement referred to in section 129(3), the complying development certificate must be issued subject to a condition that the requirements specified in the statement must be complied with.
s 155: Am 2022 (142), Sch 1[5].
156   Development contributions
(1)  This section applies if a council’s contributions plan provides for the payment of a monetary section 7.11 contribution or a section 7.12 levy in relation to development for a particular purpose (a relevant purpose), whether or not the development is classed as complying development under the contributions plan.
(2)  A complying development certificate that authorises development for a relevant purpose must be issued subject to the following conditions—
(a)  the condition required by the Act, section 4.28(9) requiring payment of a monetary section 7.11 contribution or a section 7.12 levy,
(b)  the contribution or levy must be paid before the work authorised by the certificate commences.
(3)  This section applies despite a provision to the contrary in the council’s contributions plan.
(4)  In this section—
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 the Act, section 7.11.
section 7.12 levy means the payment of a levy, as referred to in the Act, section 7.12.
157   Payment of security
(1)  This section applies to a complying development certificate authorising the carrying out of development if—
(a)  the development involves the demolition of a work or building, the erection of a new building or an addition to an existing building, and
(b)  the estimated cost of the development, as specified in the application for the certificate, is $25,000 or more, and
(c)  the development will be carried out on land adjacent to a public road, and
(d)  at the time the application for the certificate is made, the council for the area in which the development will be carried out has specified, on its website, an amount of security that must be paid in relation to development—
(i)  of the same type or description, or
(ii)  carried out in the same circumstances, or
(iii)  carried out on land of the same size or description.
(2)  A complying development certificate must be issued subject to a condition that the amount of security referred to in subsection (1)(d) will be given, in accordance with this section, to the council before the building work or subdivision work authorised by the certificate commences.
(3)  The applicant may give the security to the council by—
(a)  a deposit with the council, or
(b)  a guarantee satisfactory to the council.
(4)  The council may use the security to meet the cost of making good damage caused to council property as a consequence of doing a thing, or not doing a thing, authorised or required by the complying development certificate, including the cost of an inspection to determine if damage has been caused.
(5)  The balance of the security remaining after meeting the costs referred to in subsection (4) must be refunded to, or at the direction of, the person who gave the security.
158   Principal certifier to be satisfied that preconditions met before commencement of work
(1)  This section applies to a complying development certificate that involves building work or subdivision work.
(2)  The complying development certificate must be issued subject to the condition that the principal certifier for the building work or subdivision work, and over which the principal certifier has control, must be satisfied that any preconditions in relation to the work that are required to be met before the work commences have been met before the work commences.
Division 6 Miscellaneous
159   Application to modify complying development
(1)  An application under the Act, section 4.30 to modify complying development in relation to which a complying development certificate has been issued, or in relation to which an application for a complying development certificate has been made, must be in the approved form.
(2)  This Part applies to an application to modify complying development in the same way as it applies to the original application.
160   Complying development certificate 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 give a copy of the following to the NSW Rural Fire Service—
(a)  the complying development certificate,
(b)  associated documents, including—
(i)  a copy of the application for the certificate, and
(ii)  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 give a copy of the documents to the council.
161   Validity of complying development certificates—the Act, s 4.59
A notice relating to the issue of a complying development certificate, including a certificate issued by a registered certifier, that describes the land and the complying development must be published on the relevant council’s website.
Part 7 Existing uses—the Act, Div 4.11
162   Application of Part
(1)  The provisions of this Part are provisions in force for the purposes of the Act, section 4.67(1).
Note—
The Act, section 4.67(2) provides that the provisions in force for the purposes of the Act, section 4.67(1) are taken to be incorporated in every environmental planning instrument.
(2)  In this Part—
relevant day means—
(a)  in relation to an existing use referred to in the Act, section 4.65(a)—the day 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 the Act, section 4.65(b)—the day on which the building, work or land being used for the existing use was first erected, carried out or used.
163   Certain development allowed
(1)  An existing use may, subject to this Part—
(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 the 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 subsection (1)(e) or (f) unless the change—
(a)  involves only minor alterations, and
(b)  does not involve an increase of more than 10% in the gross floor area 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 the existing use.
(3)  In this section—
commercial use means the use of a building, work or land for the purposes of commercial premises.
light industrial use means the use of a building, work or land for the purposes of light industry.
164   Enlargement, expansion and intensification of existing uses
(1)  Development consent is required for any enlargement, expansion or intensification of an existing use.
(2)  The enlargement, expansion or intensification must be—
(a)  for the existing use and for no other use, and
(b)  carried out only on the land on which the existing use was carried out immediately before the relevant day.
165   Alteration of buildings and works
(1)  Development consent is required for an alteration of a building or work used for an existing use.
(2)  The alteration must be—
(a)  for the existing use of the building or work and for no other use, and
(b)  erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant day.
166   Rebuilding of buildings and works
(1)  Development consent is required for any rebuilding of a building or work used for an existing use.
(2)  The rebuilding must be—
(a)  for the existing use of the building or work and for no other use, and
(b)  carried out only on the land on which the building or work was erected or carried out immediately before the relevant day.
167   Change of existing uses
(1)  Development consent is required for—
(a)  a change of an existing use to another use, and
(b)  for a building, work or land that is used for different existing uses—a change in the proportions in which the various parts of the building, work or land are used for the different existing uses.
(2)  This Part does not prevent the granting of a development consent referred to in another provision of this Part at the same time as the granting of a development consent referred to in subsection (1).
Part 8 Infrastructure and environmental impact assessment
Division 1 Preliminary
168   Definitions
(1)  In this Part—
environmental assessment requirements means—
(a)  in relation to State significant development, designated development or an activity under the Act, Division 5.1—the environmental assessment requirements prepared by the Planning Secretary and notified under section 176, and
(b)  in relation to State significant infrastructure—the requirements prepared by the Planning Secretary under the Act, section 5.16.
environmental factors—see section 170.
environmental factors guidelines means guidelines issued by the Planning Secretary under section 170.
responsible person means the applicant or proponent responsible for preparing an environmental impact statement.
(2)  For the purposes of the Act, section 5.11, definition of infrastructure, if a single development comprises development that is only partly infrastructure, the remainder of the development, for whatever purposes, is also infrastructure.
169   Development that is not an activity
For the Act, section 5.1(1), definition of activity, the following development is not an activity—
(a)  the demolition of a temporary structure,
(b)  development for the purposes of camping grounds or caravan parks that is permitted without development consent under State Environmental Planning Policy (Housing) 2021, Chapter 3, Part 10,
(c)  development for the following purposes that is permitted without development consent under State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 2, Division 27—
(i)  early education and care facilities,
(ii)  health services facilities, other than patient transport facilities or hospitals,
(iii)  schools.
s 169: Subst 2022 (146), sec 3. Am 2022 (266), sec 3(1).
170   Planning Secretary guidelines about review of environmental factors—the Act, s 5.10(a)
(1)  The Planning Secretary may issue guidelines in relation to—
(a)  the factors to be taken into account by a determining authority when considering the likely impact of an activity (the environmental factors), and
(b)  the form of the document required to be prepared by a determining authority under section 171.
(2)  The guidelines must be published on the NSW planning portal.
(3)  The Planning Secretary may vary or revoke the guidelines.
171   Review of environmental factors—the Act, s 5.10(a)
(1)  When considering the likely impact of an activity on the environment, the determining authority must take into account the environmental factors specified in the environmental factors guidelines that apply to the activity.
(2)  If there are no environmental factors guidelines in force, the determining authority must take into account the following environmental factors—
(a)  the environmental impact on the community,
(b)  the transformation of the locality,
(c)  the environmental impact on the ecosystems of the locality,
(d)  reduction of the aesthetic, recreational, scientific or other environmental quality or value of the locality,
(e)  the effects on any locality, place or building that has—
(i)  aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance, or
(ii)  other special value for present or future generations,
(f)  the impact on the habitat of protected animals, within the meaning of the Biodiversity Conservation Act 2016,
(g)  the endangering of a species of animal, plant or other form of life, whether living on land, in water or in the air,
(h)  long-term effects on the environment,
(i)  degradation of the quality of the environment,
(j)  risk to the safety of the environment,
(k)  reduction in the range of beneficial uses of the environment,
(l)  pollution of the environment,
(m)  environmental problems associated with the disposal of waste,
(n)  increased demands on natural or other resources that are, or are likely to become, in short supply,
(o)  the cumulative environmental effect with other existing or likely future activities,
(p)  the impact on coastal processes and coastal hazards, including those under projected climate change conditions,
(q)  applicable local strategic planning statements, regional strategic plans or district strategic plans made under the Act, Division 3.1,
(r)  other relevant environmental factors.
(3)  A determining authority must prepare a review of the environmental factors that demonstrates how the environmental factors specified in the environmental factors guidelines, or the environmental factors specified in subsection (2) if no guidelines are in force, were taken into account when considering the likely impact of an activity.
(4)  The review of environmental factors must be published on the determining authority’s website or the NSW planning portal if—
(a)  the activity has a capital investment value of more than $5 million, or
(b)  the activity requires an approval or permit as referred to in any of the following provisions before it may be carried out—
(i)  Fisheries Management Act 1994, sections 144, 201, 205 or 219,
(ii)  Heritage Act 1977, section 57,
(iv)  Protection of the Environment Operations Act 1997, sections 47–49 or 122, or
(c)  the determining authority considers that it is in the public interest to publish the review.
(5)  The review must be published under subsection (4)—
(a)  before the activity commences, or
(b)  if publishing the review before the activity commences is not practicable—as soon as practicable, and no later than 1 month, after the activity commences.
(6)  Subsection (4) does not apply in relation to a review of an activity—
(a)  that belongs to a class specified by the Planning Secretary in a notice published on the Department’s website for the purposes of this section, or
(b)  to which an approved code under Division 6 applies.
(7)  If a provision of an approved code under Division 6 applies to a determining authority’s exercise of functions under the Act, section 5.5, the provision of the approved code prevails to the extent of an inconsistency with a provision of this section.
(8)  Subsection (4) applies on and from 1 July 2022.
s 171: Am 2022 (40), Sch 1[38].
Division 2 Environmental assessment requirements for State significant development, designated development and activities—the Act, ss 4.39, 4.64 and Div 5.1
172   Application of Division
(1)  This Division applies to an environmental impact statement prepared under the Act, section 4.12(8) or Division 5.1 only.
(2)  This Division does not apply to an environmental impact statement prepared under the Act, section 5.16.
173   Application to Planning Secretary for environmental assessment requirements
(1)  Before preparing an environmental impact statement, the responsible person must apply to the Planning Secretary for the environmental assessment requirements for the environmental impact statement.
(2)  The application must—
(a)  be in the approved form, and
(b)  contain details of the location, nature and scale of the development or activity.
(3)  If the application relates to State significant development, the applicant must have regard to the State Significant Development Guidelines in preparing the application.
(4)  The Planning Secretary may require the responsible person to provide further information about the location, nature and scale of the development or activity.
(5)  The Planning Secretary may at any time waive the requirement for an application in relation to—
(a)  a particular development or activity, or
(b)  a particular class or description of development or activity.
(6)  A waiver may be given subject to conditions or unconditionally.
(7)  Subsection (5) does not apply to the following development—
(a)  integrated development,
(b)  State significant development that, but for the Act, section 4.41, would require an authorisation specified in that section,
(c)  State significant development for which an authorisation, other than a consent under the Roads Act 1993, section 138, must be given under the Act, section 4.42.
s 173: Am 2022 (142), Sch 1[1].
174   Application for environmental assessment requirements for integrated development
(1)  This section applies to an application for the environmental assessment requirements for integrated development.
(2)  In addition to the requirements under section 173, the application must contain details of the approvals that are required for the development.
(3)  After receiving an application, the Planning Secretary must, by written notice, request each relevant approval body to give the approval body’s requirements in relation to the environmental impact statement to the Planning Secretary.
(4)  If the approval body’s requirements are given to the Planning Secretary within 14 days after receipt of the Planning Secretary’s request, the Planning Secretary must notify the approval body of the environmental assessment requirements and any modifications to the requirements.
(5)  If the approval body’s requirements are not given to the Planning Secretary within 14 days, the Planning Secretary must give written notice to the responsible person.
(6)  After receiving notice under subsection (5), the responsible person must—
(a)  apply to the approval body for its requirements in relation to the environmental impact statement, and
(b)  if the approval body gives its requirements to the responsible person—consider the requirements in completing the environmental impact statement.
(7)  In this section—
approval body’s requirements means the approval body’s requirements in relation to an environmental impact statement for the purposes of its decision about the general terms of the approval in relation to the development, including whether it will grant an approval.
175   Environmental assessment requirements for State significant development
(1)  This section applies to the environmental assessment requirements for State significant development in addition to the requirements under section 173.
(2)  In preparing the environmental assessment requirements for nominated State significant development, the Planning Secretary must—
(a)  consult relevant public authorities, and
(b)  consider whether the requirements need to assess any key issues raised by the public authorities.
(3)  In preparing the environmental assessment requirements for development in relation to which a gateway certificate has been issued, the Planning Secretary must address any recommendations of the Gateway Panel set out in the certificate.
(4)  In preparing the environmental assessment requirements for development in relation to which an unconditional gateway certificate has been issued, the Planning Secretary must—
(a)  consult the Gateway Panel, and
(b)  consider whether the requirements need to assess any key issues raised by the Panel.
(5)  If a gateway certificate is issued for the development after the environmental assessment requirements for the development have been notified under section 176, the Planning Secretary—
(a)  must consider any recommendations of the Gateway Panel set out in the gateway certificate, and
(b)  may modify the requirements in accordance with section 180.
(6)  In this section—
Gateway Panel means the Mining and Petroleum Gateway Panel under State Environmental Planning Policy (Resources and Energy) 2021, Chapter 2.
nominated State significant development means State significant development that—
(a)  would, but for the Act, section 4.10(2), be designated development, or
(b)  is partly prohibited by an environmental planning instrument, or
(c)  is wholly prohibited by an environmental planning instrument, to the extent that the Act, section 4.38(5) applies, or
(d)  is part of a concept development application.
unconditional gateway certificate means an unconditional certificate under State Environmental Planning Policy (Resources and Energy) 2021, Chapter 2.
s 175: Am 2022 (40), Sch 1[39] [40].
176   Notice of environmental assessment requirements
(1)  The Planning Secretary must give written notice of the environmental assessment requirements to—
(a)  the responsible person, and
(b)  if relevant, the relevant consent authority or determining authority.
(2)  The notice must be given—
(a)  within 28 days after the application is made under section 173, or
(b)  if the Planning Secretary requests further information—within 28 days after the information is given to the Planning Secretary, or
(c)  within a further period agreed between the Planning Secretary and the responsible person.
(3)  The Planning Secretary may modify the environmental assessment requirements by further written notice.
(4)  The Planning Secretary may impose environmental assessment requirements by reference to specified publications.
177   Expiry of environmental assessment requirements for State significant development
(1)  If a development application for State significant development is not made within 2 years after notice of the environmental assessment requirements is last given to the responsible person under section 176, the environmental assessment requirements expire.
(2)  The Planning Secretary may, on the written request of the responsible person, extend the period specified in subsection (1).
(3)  The responsible person must request an extension before the end of the period.
(4)  More than 1 request for an extension may be made but the total period of extension must not exceed 2 years.
178   Duration of environmental assessment requirements for designated development and other activities
(1)  This section applies to the following applications—
(a)  a development application for designated development,
(b)  an application for approval of an activity.
(2)  If the application is not made within 2 years after notice of the environmental assessment requirements is last given to the responsible person under section 176, the responsible person must further consult the Planning Secretary in relation to the preparation of the environmental impact statement.
Division 3 Approval of State significant infrastructure—the Act, Div 5.2
179   Applications for approval
(1)  An application for approval of the Minister to carry out State significant infrastructure must be—
(a)  in the approved form, and
(b)  submitted on the NSW planning portal.
(2)  An application may, with the approval of the Planning Secretary, be amended at any time before the application is determined.
(3)  An application to amend an application for approval of the Minister to carry out State significant infrastructure must—
(a)  be in the approved form, and
(b)  contain details of the amendment, and
(ba)  be prepared having regard to the State Significant Infrastructure Guidelines, and
(c)  be submitted on the NSW planning portal.
(4)    (Repealed)
(5)  The fees for an application for approval, including an additional fee for critical State significant infrastructure, are specified in Schedule 4 and determined in accordance with Part 13.
s 179: Am 2022 (142), Sch 1[6] [7].
180   Modification requests
(1)  A modification request must—
(a)  be in the approved form, and
(b)  contain details of the modification, and
(ba)  be prepared having regard to the State Significant Infrastructure Guidelines, and
(c)  be submitted on the NSW planning portal.
(2)    (Repealed)
(3)  A modification request may, with the approval of the Planning Secretary, be amended at any time before the request is determined.
(4)  An application to amend a modification request must—
(a)  contain details of the amendment, and
(b)  be submitted on the NSW planning portal.
(5)  The fees payable for the following are specified in Schedule 4—
(a)  a modification request,
(b)  giving of notice of a modification request required under the Act, other than on the NSW planning portal.
s 180: Am 2022 (142), Sch 1[8] [9].
181   Owner’s consent for applications for approval and modification requests
(1)  This section applies to—
(a)  an application for the Minister’s approval to carry out State significant infrastructure, and
(b)  a modification request.
(2)  An application may be made only with the consent of the owner of the land on which the State significant infrastructure will be carried out.
(3)  If an application relates to land owned by a Local Aboriginal Land Council and requires the consent of the Local Aboriginal Land Council, the consent of the New South Wales Aboriginal Land Council is also required.
(4)  Consent may be obtained at any time before the determination of the application.
(5)  Consent of the owner is not required for an application for the following State significant infrastructure—
(a)  State significant infrastructure that will be carried out by a proponent that is a public authority,
(b)  critical State significant infrastructure,
(c)  State significant infrastructure comprising 1 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 section by written notice to the person making the application or request,
(d)  State significant infrastructure that involves development for a purpose specified in State Environmental Planning Policy (Planning Systems) 2021, Schedule 1, section 5(1)–(4).
(6)  The proponent of State significant infrastructure specified in subsection (5) must—
(a)  arrange for the Minister to publish notice of the application on the NSW planning portal, and
(b)  give notice of the application during the relevant period by—
(i)  giving written notice to the owner of the land, or
(ii)  an advertisement published in a newspaper circulating in the area in which the infrastructure will be carried out.
(7)  In this section—
application means—
(a)  an application for the Minister’s approval to carry out State significant infrastructure, or
(b)  a modification request.
relevant period means—
(a)  for written notice under subsection (6)(b)(i)—the period ending 14 days after the application is made, or
(b)  for an advertisement under subsection (6)(b)(ii) for an application for the Minister’s approval—the period ending 14 days before the environmental impact statement relating to the infrastructure is publicly exhibited, or
(c)  for an advertisement under subsection (6)(b)(ii) for a modification request—the period ending 14 days after the modification request is made.
s 181: Am 2022 (40), Sch 1[41].
Division 4 Environmental assessment for State significant infrastructure—the Act, Div 5.2
182   Preparation of environmental assessment requirements
(1)  In preparing the environmental assessment requirements for State significant infrastructure, the Planning Secretary may require the proponent to provide more information.
(2)  The environmental assessment requirements may be imposed by reference to specified publications.
183   Expiry of environmental assessment requirements
(1)  If an environmental impact statement is not submitted to the Planning Secretary under the Act, section 5.17 within 2 years after the proponent is last notified under the Act, section 5.16(4), the environmental assessment requirements expire.
(2)  The Planning Secretary may, on the written request of the proponent, extend the period after which the environmental assessment requirements expire.
(3)  The proponent must request an extension before the expiry of the environmental assessment requirements.
(4)  More than 1 request for an extension may be made but the total period of extension must not exceed 2 years.
184   Environmental impact statement for infrastructure on land near Siding Spring Observatory—the Act, s 5.29(e)
When preparing an environmental impact statement for State significant infrastructure on land less than 200 kilometres from the Siding Spring Observatory, the proponent must consider the Dark Sky Planning Guideline.
185   Planning Secretary’s environmental assessment report
(1)  The Planning Secretary must give the report under the Act, section 5.18 to the Minister 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 the time during which the Planning Secretary is waiting for a response or a preferred infrastructure report required from the proponent under the Act, section 5.17(6).
186   State significant infrastructure documents to be publicly available
(1)  For the purposes of the Act, section 5.28(1), the documents must be published on the NSW planning portal.
(2)  For the purposes of the Act, section 5.28(1)(i), submissions made under the Act, section 5.17, or the report of the issues raised in the submissions, are prescribed.
187   Surrender of approvals or existing use rights—the Act, s 5.28(4)
(1)  A surrender of an approval for State significant infrastructure or of a right conferred by the Act, Division 4.11 must be made by giving the Planning Secretary a written notice of the surrender.
(2)  The notice of surrender must contain the following information—
(a)  the name and address of the person giving the notice,
(b)  the address and folio identifier 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 that the owner consents to the surrender of the approval or right.
(3)  A notice of surrender takes effect on the day determined by the Planning Secretary.
(4)  A notice of surrender operates, according to its terms, to surrender the approval or right to which it relates.
188   Application of the Act, Part 6 to State significant infrastructure—the Act, s 6.33(2)
(1)  A relevant provision applies to approved State significant infrastructure in the same way as it applies, with necessary modifications, to development to which a development consent relates.
(2)  For the purposes of this section, a reference in the Act, Part 6 to a development consent is taken to include a reference to an approval of State significant infrastructure.
(3)  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, makes it a condition of the approval that the provision applies.
(4)  In this section—
relevant provision means—
(a)  the Act, section 6.6, 6.9 or 6.12, or
(b)  a provision of the Act relating to the issue of a subdivision certificate.
Division 5 Environmental impact statements—the Act, ss 4.12(8), 5.7(1) and 5.16(2)
189   Definitions
In this Division—
infrastructure means State significant infrastructure.
190   Form of environmental impact statement
(1)  An environmental impact statement must contain the following information—
(a)  the name, address and professional qualifications of the person who prepared the statement,
(b)  the name and address of the responsible person,
(c)  the address of the land—
(i)  to which the development application relates, or
(ii)  on which the activity or infrastructure to which the statement relates will be carried out,
(d)  a description of the development, activity or infrastructure,
(e)  an assessment by the person who prepared the statement of the environmental impact of the development, activity or infrastructure, dealing with the matters referred to in this Division.
(2)  The person preparing the statement must have regard to—
(a)  for State significant development—the State Significant Development Guidelines, or
(b)  for State significant infrastructure—the State Significant Infrastructure Guidelines.
(3)  An environmental impact statement must also contain a declaration by a relevant person that—
(a)  the statement has been prepared in accordance with this Regulation, and
(b)  the statement contains all available information that is relevant to the environmental assessment of the development, activity or infrastructure, and
(c)  the information contained in the statement is not false or misleading, and
(d)  for State significant development or State significant infrastructure—the statement contains the information required under the Registered Environmental Assessment Practitioner Guidelines.
(4)  In this section—
registered environmental assessment practitioner means a person who is registered or certified under a professional scheme that is specified as a registered environmental assessment practitioner scheme in the Accredited Registered Environmental Assessment Practitioner (REAP) Schemes published on the NSW Planning Portal on 1 July 2021.
Registered Environmental Assessment Practitioner Guidelines means the Registered Environmental Assessment Practitioner Guidelines prepared by the Planning Secretary as in force from time to time and published on the Department’s website.
relevant person means—
(a)  for State significant development or State significant infrastructure—a registered environmental assessment practitioner, or
(b)  otherwise—the person who prepares the environmental impact statement.
s 190: Am 2021 (759), Sch 8[1]; 2022 (142), Sch 1[1].
191   Compliance with environmental assessment requirements
The environmental impact statement must comply with the environmental assessment requirements notified under section 176 or the Act, section 5.16(4).
192   Content of environmental impact statement
(1)  An environmental impact statement must contain the following—
(a)  a summary of the environmental impact statement,
(b)  a statement of the objectives of the development, activity or infrastructure,
(c)  an analysis of feasible alternatives to the carrying out of the development, activity or infrastructure, considering its objectives, including the consequences of not carrying out the development, activity or infrastructure,
(d)  an analysis of the development, activity or infrastructure, including—
(i)  a full description of the development, activity or infrastructure, and
(ii)  a general description of the environment likely to be affected by the development, activity or infrastructure and a detailed description of the aspects of the environment that are likely to be significantly affected, and
(iii)  the likely impact on the environment of the development, activity or infrastructure, and
(iv)  a full description of the measures to mitigate adverse effects of the development, activity or infrastructure on the environment, and
(v)  a list of the approvals that must be obtained under another Act or law before the development, activity or infrastructure may lawfully be carried out,
(e)  a compilation, in a single section of the environmental impact statement, of the measures referred to in paragraph (d)(iv),
(f)  the reasons justifying the carrying out of the development, activity or infrastructure, considering biophysical, economic and social factors, including the principles of ecologically sustainable development set out in section 193.
Note—
A cost benefit analysis may be submitted or referred to in the reasons justifying the carrying out of the development, activity or infrastructure.
(2)  This section is subject to the environmental assessment requirements that relate to the environmental impact statement.
(3)  This section does not apply if—
(a)  the Planning Secretary has waived the requirement for an application for environmental assessment requirements in relation to an environmental impact statement for State significant development, and
(b)  the conditions of the waiver specify that the environmental impact statement must instead comply with requirements set out or referred to in the conditions.
(4)  A document adopted or referred to by an environmental impact statement is taken to form part of the statement.
193   Principles of ecologically sustainable development
(1)  The principles of ecologically sustainable development are the following—
(a)  the precautionary principle,
(b)  inter-generational equity,
(c)  conservation of biological diversity and ecological integrity,
(d)  improved valuation, pricing and incentive mechanisms.
(2)  The precautionary principle is that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(3)  In applying the precautionary principle, public and private decisions should be guided by—
(a)  careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and
(b)  an assessment of the risk-weighted consequences of various options.
(4)  The principle of inter-generational equity is that the present generation should ensure the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations.
(5)  The principle of the conservation of biological diversity and ecological integrity is that the conservation of biological diversity and ecological integrity should be a fundamental consideration.
(6)  The principle of improved valuation, pricing and incentive mechanisms is that environmental factors should be included in the valuation of assets and services, such as—
(a)  polluter pays, that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement, and
(b)  the users of goods and services should pay prices based on the full life cycle of the costs of providing the goods and services, including the use of natural resources and assets and the ultimate disposal of waste, and
(c)  established environmental goals should be pursued in the most cost effective way by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.
194   Publication of environmental impact statements—the Act, s 5.8
(1)  The notice required under the Act, section 5.8(1) must also contain the following—
(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 published,
(e)  a statement that a person may, before the specified closing date, make written representations to the determining authority about the proposed activity.
(2)  The notice must be published on the NSW planning portal.
(3)  The period during which the environmental impact statement may be inspected begins on the day on which the notice is first published on the NSW planning portal.
(4)  An environmental impact statement must be published on—
(a)  the website of the determining authority for the activity, and
(b)  the website of the council of each area affected by the activity.
195   Submissions about environmental impact statements for State significant infrastructure
(1)  Submissions about an environmental impact statement for State significant infrastructure under the Act, Division 5.2 made during the public exhibition period must be made to the determining authority using the NSW planning portal.
(2)  This section applies on and from 1 July 2023.
196   Reports about activities under the Act, Div 5.1
(1)  A determining authority for an activity must prepare a report on an 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—
(a)  carry out or refrain from carrying out the activity, or
(b)  approve or disapprove the carrying out of the activity.
(3)  The report must consider and comment on each of the following matters—
(a)  the environmental impact statement,
(b)  any representations duly made about the proposed activity,
(c)  the effects of the proposed activity on the environment,
(d)  the proponent’s proposals to mitigate adverse effects of the activity on the environment,
(e)  findings and recommendations relating to the proposed activity arising from the following—
(i)  a report by the Planning Secretary under the Act, section 5.8,
(ii)  advice given by the Minister under the Act, section 5.9,
(iii)  a public hearing by the Independent Planning Commission.
(4)  The report must also contain—
(a)  full details of the determining authority’s decision on the proposed activity, and
(b)  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—
(a)  make the report public as soon as practicable after it is completed, and
(b)  send a copy of the report to the council of each area that is, or would have been, affected by the activity.
(6)  Subsection (5) does not apply to the extent of a direction given by the Independent Planning Commission under the Act, Schedule 2, clause 5 that prohibits or restricts the publication of the report.
Division 6 Codes for the carrying out of activities by determining authorities—the Act, s 5.6
197   Definitions
In this Division—
approved Code means a Code approved by the Minister under this Division.
ARTC means the Australian Rail Track Corporation Ltd (ACN 081 455 754).
ARTC Code means a Code approved under section 200(1).
198   Approved Codes
(1)  An approved Code may make provision about the following—
(a)  the exercise by ARTC of its functions under the Act, section 5.5 in relation to activities, including activities for the following purposes—
(i)  development for the purposes of the construction, maintenance or operation of ARTC rail infrastructure facilities,
(ii)  geotechnical investigations relating to ARTC rail infrastructure facilities,
(iii)  environmental management and pollution control relating to ARTC rail infrastructure facilities,
(iv)  access for the purpose of the construction, maintenance or operation of ARTC rail infrastructure facilities,
(v)  temporary construction sites and storage areas, including temporary batching plants, the storage of plant and equipment and the stockpiling of excavated material,
(b)  the exercise by a proprietor of a registered non-government school of its functions under the Act, section 5.5 in relation to activities for the purposes of development that is permitted without consent under State Environmental Planning Policy (Transport and Infrastructure) 2021, section 3.35,
(c)  the exercise by an authorised network operator of its functions under the Act, section 5.5 in relation to activities, including activities for the following purposes—
(i)  development for the purposes of the construction, maintenance or operation of a transacted electricity transmission or distribution network,
(ii)  geotechnical investigations relating to a transacted electricity transmission or distribution network,
(iii)  environmental management and pollution control relating to a transacted electricity transmission or distribution network,
(iv)  access for the purpose of the construction, maintenance or operation of a transacted electricity transmission or distribution network,
(v)  temporary construction sites and storage areas, including temporary batching plants, the storage of plant and equipment and the stockpiling of excavated material.
(2)  An approved Code may specify the period for which the approved Code is in force.
(3)  An approved Code does not apply to an activity for which the relevant determining authority is required under the Act, Part 5 to provide or obtain an environmental impact statement.
(4)  Without limitation, an approved Code may provide for the matters specified in the Act, section 5.6(2).
(5)  The Minister may, by written notice to a relevant determining authority, exempt a specified activity of the authority from the operation of an approved Code.
(6)  An exemption may be—
(a)  subject to conditions, and
(b)  revoked or varied at any time by written notice to the relevant determining authority.
(7)  In this section—
ARTC rail infrastructure facilities means rail infrastructure facilities owned by ARTC or a rail authority that are—
(a)  subject to a lease or licence or other arrangement under the Transport Administration Act 1988, Part 8A, or
(b)  located on land that is subject to a lease or licence or other arrangement under that Part.
rail authority has the same meaning as in the Transport Administration Act 1988, Part 8A.
transacted electricity transmission or distribution network means a transacted distribution system or transacted transmission system under the Electricity Network Assets (Authorised Transactions) Act 2015.
s 198: Am 2022 (40), Sch 1[42].
199   Additional requirements for ARTC Code
The ARTC Code must also 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 to consider advice from the Planning Secretary,
(f)  requirements to consider environmental management procedures in relation to effects of activities on the environment,
(g)  requirements for documents,
(h)  protocols for the availability of documents to the Minister, the Planning Secretary and the public,
(i)  protocols for auditing the performance of and compliance with the Code,
(j)  other matters required by the Minister.
200   Approval of ARTC Code
(1)  ARTC must prepare a Code and apply to the Planning Secretary for approval of the Code by the Minister.
(2)  As soon as practicable after receiving an application for approval of a Code, the Planning Secretary must—
(a)  assess the application, and
(b)  give a report on the application to the Minister.
(3)  The Minister may—
(a)  approve or refuse to approve a Code prepared by ARTC, and
(b)  vary or revoke an approved Code.
(4)  The Minister must give ARTC written notice of an approval of or refusal to approve a Code, including the reasons for a refusal.
(5)  An approval may be given subject to conditions.
201   Approval of other Codes
(1)  The Minister may—
(a)  approve 1 or more Codes for the purposes of this Division, and
(b)  vary or revoke an approved Code.
(2)  An approval of a Code, or a variation or revocation of an approved Code, takes effect on—
(a)  the day on which notice of the approval, variation or revocation is published in the Gazette, or
(b)  a later day specified in the approval, variation or revocation.
(3)  Before varying or revoking a Code or approving a Code as a replacement for an existing Code that applies to an authorised network operator as referred to in section 198(1)(c), the Minister must—
(a)  notify each authorised network operator affected by the proposal, and
(b)  give each operator an opportunity to make submissions on the proposal.
(4)  The Minister must take into account any submission made by an authorised network operator within 20 business days after the operator was notified of the proposal.
(5)  This section does not apply to an ARTC Code.
(6)  In this section—
business day means a day that is not a Saturday, a Sunday or a public holiday throughout New South Wales.
Part 9 Infrastructure contributions and finance
Division 1 Planning agreements—the Act, s 7.10
202   Definitions
(1)  In this Part—
development contribution means the dedication of land, the payment of a monetary contribution or the provision of a material public benefit, as referred to in the Act, section 7.11.
development contribution condition means a condition of development consent, referred to in the Act, section 7.11, requiring the dedication of land or the payment of a monetary contribution, or both.
development levy means a levy referred to in the Act, section 7.12.
development levy condition means a condition of development consent, referred to in the Act, section 7.12, requiring the payment of a levy.
(2)  For the purposes of the Act, section 7.1, definition of planning authority, paragraph (e), all public authorities are declared to be planning authorities.
203   Making of planning agreements
(1)  A planning agreement must be—
(a)  written, and
(b)  signed by the parties to the agreement, and
(c)  submitted on the NSW planning portal.
(2)  The fee for submitting a planning agreement on the NSW planning portal is specified in Schedule 4.
(3)  A planning agreement is not entered into until it is signed by all the parties to the agreement.
(4)  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 day on which the change is made, or
(b)  if the agreement relates to a development application or proposed development application—the day on which the development consent is granted.
(5)  A planning agreement may be amended or revoked by further agreement signed by the parties to the agreement, including by a subsequent planning agreement.
(6)  The Planning Secretary may from time to time issue practice notes to assist parties to prepare planning agreements.
(7)  A council that is negotiating or entering into a planning agreement must consider any relevant practice notes.
204   Public notice of planning agreements—the Act, s 7.5(2)
(1)  If a planning authority proposes to enter into, amend or revoke a planning agreement, in connection with a development application or a change to a local environmental plan, notice of the planning authority’s proposal must be given as part of, and at the same time and in the same way as, the notice of—
(a)  the development application to which the proposal relates, or
(b)  the planning proposal for the change to the local environmental plan to which the proposal relates.
(2)  The Planning Secretary must give notice of any other planning agreement that requires public notice under the Act, section 7.5—
(a)  at least 28 days before the agreement is entered into, amended or revoked, and
(b)  in the way agreed to by the planning authorities that are parties to the agreement.
(3)  If it is not practicable for notice to be given as required under this section, the notice must be given—
(a)  as soon as practicable, and
(b)  in a way agreed to by the planning authorities that are parties to the agreement.
205   Explanatory notes for planning agreements
(1)  A planning authority proposing to enter into, amend or revoke a planning agreement must prepare a written statement (an explanatory note) that—
(a)  summarises the objectives, nature and effect of the proposed agreement, amendment or revocation, and
(b)  contains an assessment of the merits of the proposed agreement, amendment or revocation, including the positive and negative impacts on the public or a relevant section of the public.
(2)  In preparing the explanatory note, the planning authority must consider any relevant practice notes issued by the Planning Secretary under section 203(6).
(3)  A copy of the explanatory note must be exhibited with the copy of the proposed agreement, amendment or revocation when it is made publicly available in accordance with the Act.
(4)  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 given to the council when a copy of the agreement is given to the council under the Act, section 7.5(4).
(5)  A planning agreement may provide that the explanatory note must not be used to assist in construing the agreement.
206   Information about planning agreements
(1)  A planning authority must keep a register of all relevant planning agreements and record the following information in the register for each relevant planning agreement—
(a)  the day on which the agreement was entered into,
(b)  the names of the parties to the agreement,
(c)  a description of the development to which the agreement relates, if relevant,
(d)  the land to which the agreement applies.
(2)  The planning authority must publish the following on the NSW planning portal and the planning authority’s website—
(a)  the register under subsection (1),
(b)  each relevant planning agreement,
(c)  the explanatory note under section 205 relating to each relevant planning agreement,
(d)  records for each financial year that show—
(i)  the monetary amounts received by the planning authority under the relevant planning agreements, and
(ii)  the value of works contributed under the relevant planning agreements, including assets provided to, or held by, the planning authority in relation to the works, and
(iii)  the value of land contributed under the relevant planning agreements.
(3)  The functions of the Minister as a planning authority under this section must be exercised by the Planning Secretary.
(4)  This section extends to a planning agreement entered into before the commencement of this section.
(5)  Subsection (2) applies to a planning authority that is not a council or the Minister on and from until 1 July 2022 only.
(6)  In this section—
relevant planning agreement means—
(a)  if the planning authority is a council—a planning agreement that applies to the area of the council, including an amendment to the planning agreement, whether or not the council is a party to the agreement, and
(b)  otherwise—a planning agreement to which the planning authority is a party, including an amendment to the planning agreement.
s 206: Am 2021 (759), Sch 8[2] [3].
Division 2 Development contributions and development levies
207   Indexation of monetary development contribution—the Act, s 7.11(3)
The cost of providing public amenities and public services must be indexed quarterly or annually, as specified in the relevant contributions plan, in accordance with movements in the Consumer Price Index.
208   Determination of proposed cost of development—the Act, s 7.12(5)(a)
(1)  The proposed cost of carrying out development must be determined by the consent authority by adding up all the costs and expenses that have been or will be incurred by the applicant in carrying out the development.
(2)  The costs of carrying out development include the costs of, and costs incidental to, the following—
(a)  if the development involves the erection of a building or the carrying out of engineering or construction work—
(i)  erecting the building or carrying out the work, and
(ii)  demolition, excavation and site preparation, decontamination or remediation,
(b)  if the development involves a change of use of land—doing anything necessary to enable the use of the land to be changed,
(c)  if the development involves the subdivision of land—preparing, executing and registering—
(i)  the plan of subdivision, and
(ii)  the related covenants, easements or other rights.
(3)  In determining the proposed cost, a consent authority may consider an estimate of the proposed cost that is prepared by a person, or a person of a class, approved by the consent authority to provide the estimate.
(4)  The following costs and expenses must not be included in an estimate or determination of the proposed cost—
(a)  the cost of the land on which the development will be carried out,
(b)  the costs of repairs to a building or works on the land that will be kept in connection with the development,
(c)  the costs associated with marketing or financing the development, including interest on 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 for the development,
(g)  the costs of fittings and furnishings, including refitting or refurbishing, associated with the development, except if the development involves an enlargement, expansion or intensification of a current use of land,
(h)  the costs of commercial stock inventory,
(i)  the taxes, levies or charges, excluding GST, paid or payable in connection with the development by or under a law,
(j)  the costs of enabling access by people with disability to the development,
(k)  the costs of energy and water efficiency measures associated with the development,
(l)  the costs of development that is provided as affordable housing,
(m)  the costs of development that is the adaptive reuse of a heritage item.
(5)  The proposed cost may be adjusted before payment of a development levy, as specified in a contributions plan, to reflect quarterly or annual variations to readily accessible index figures adopted by the plan between the day on which the proposed cost was determined by the consent authority and the day by which the development levy must be paid.
Example—
A contributions plan may adopt the Consumer Price Index.
(6)  To avoid doubt, this section does not affect the determination of the fee payable for a development application.
209   Maximum percentage of development levy—the Act, s 7.12(5)(b)
(1)  The following Table specifies the maximum percentage of the proposed cost of carrying out development that may be imposed by a development levy for development specified in the Table—
Table
Proposed cost of development
Maximum development levy
Development on land to which Burwood Local Environmental Plan (Burwood Town Centre) 2010 applied immediately before its repeal—
 
(a)  up to and including $250,000
Nil
(b)  more than $250,000
4%
Development on land identified in Figure 1 of the Willoughby Local Infrastructure Contributions Plan 2019 adopted by Willoughby City Council on 11 June 2019—
 
(a)  up to and including $100,000
Nil
(b)  $100,001–$200,000
0.5%
(c)  $200,001–$250,000
1%
(d)  more than $250,000
3%
Development on land in Zone B1, B3, B4 or B6 under Liverpool City Centre Local Environmental Plan 2007 immediately before its repeal—
 
(a)  up to but not including $1 million
Nil
(b)  $1 million or more
3%
Development on land in Zone R4 or IN2 under Liverpool City Centre Local Environmental Plan 2007 immediately before its repeal—
 
(a)  up to but not including $1 million
Nil
(b)  $1 million or more
2%
Development on land to which Newcastle City Centre Local Environmental Plan 2008 applied immediately before its repeal—
 
(a)  up to and including $100,000
Nil
(b)  $100,001–$200,000
0.5%
(c)  $200,001–250,000
1%
(d)  more than $250,000
3%
Development on land to which Parramatta City Centre Local Environmental Plan 2007 applied immediately before its repeal—
 
(a)  up to and including $250,000
Nil
(b)  more than $250,000
3%
Development on land in Zone B3 under Wollongong Local Environmental Plan 2009
 
(a)  up to and including $250,000
Nil
(b)  more than $250,000
2%
Development on land identified in Figures 1 and 2 in the Section 7.12 Development Contributions Plan 2019: Kensington and Kingsford Town Centres adopted by Randwick City Council on 10 December 2019—
 
(a)  up to and including $100,000
Nil
(b)  $100,001–$200,000
0.5%
(c)  $200,001–$250,000
1%
(d)  more than $250,000
2.5%
Development on land identified in Figure 1 to the Central Sydney Contributions Plan 2022 adopted by the Council of the City of Sydney on 14 December 2020—
 
(a)  up to and including $250,000
Nil
(b)  $250,001–$500,000
1%
(c)  $500,001–$1 million
2%
(d)  more than $1 million—on or before 30 June 2022
2%
(d)  more than $1 million—on or from 1 July 2022
3%
Development on land identified in Figure 1 to the Norwest Innovation Section 7.12 Development Contributions Plan adopted by The Hills Shire Council on 13 July 2021 (Norwest Innovation Land), subject to subsection (3)—
 
(a)  up to and including $100,000
Nil
(b)  $100,001–$200,000
0.5%
(c)  $200,001–$1 million
1%
(d)  more than $1 million
2.8%
(2)  The maximum percentage of the proposed cost of carrying out development that may be imposed by a development levy for development not specified in the Table to subsection (1) is—
(a)  for a proposed cost of up to and including $100,000—nil, and
(b)  for a proposed cost of $100,001–$200,000—0.5%, and
(c)  for a proposed cost of more than $200,000—1%.
(3)  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, subsection (2) applies to the development instead of subsection (1).
(4)  This section is subject to a direction given by the Minister under the Act, section 7.17(1)(d).
(5)  To avoid doubt, the Table to subsection (1) continues to apply to the land specified in the Table even if the local environmental plan or contributions plan used to describe the land is repealed.
210   Electronic transfer of affordable housing contributions
If a condition is imposed on a development consent under the Act, section 7.32 that requires 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 consent authority.
Division 3 Contributions plans—the Act, ss 7.18 and 7.21
211   Form of contributions plan
(1)  The Planning Secretary may from time to time issue practice notes to assist councils to prepare contributions plans.
(2)  A practice note must be published on the NSW planning portal.
(3)  In preparing a contributions plan, a council must consider any relevant practice notes.
(4)  One or more contributions plans may be made—
(a)  for all or part of a council’s area, and
(b)  in relation to 1 or more public amenities or public services.
(5)  A contributions plan may be made for land outside a council’s area for the purposes of a condition referred to in the Act, section 7.15.
(6)  A council must not approve a contributions plan that is inconsistent with a direction given to it under the Act, section 7.17.
212   Content of contributions plan
(1)  A contributions plan must contain the following information—
(a)  the purpose of the plan,
(b)  the land to which the plan applies,
(c)  the relationship between—
(i)  the expected types of development in the area to which the plan applies, and
(ii)  the demand for additional public amenities and public services to meet the expected development,
(d)  the formulas to be used for determining the development contributions required for different categories of public amenities and public services,
(e)  the development contribution rates for different types of development, as specified in a schedule to the plan,
(f)  a map showing the specific public amenities and public services that will be provided by the council,
(g)  a works schedule that contains an estimate of the cost and staging of the public amenities and public services, whether by reference to dates or thresholds,
(h)  if the plan authorises monetary development contributions or development levies paid for different purposes to be pooled and applied progressively for the different purposes—the priorities for the expenditure of the development contributions or development levies, by reference to a works schedule.
(2)  If a contributions plan authorises the imposition of a development levy condition, the plan must contain—
(a)  the percentage of the development levy for each type of development, as specified in a schedule to the plan, and
(b)  the method, if any, of adjusting the proposed cost of carrying out the development, after being determined by the consent authority, to reflect quarterly or annual variations to readily accessible index figures adopted by the plan between the day of the determination and the day by which the levy must be paid.
Example—
A contributions plan may adopt the Consumer Price Index.
(3)  A contributions plan must contain information about the council’s policy about the following—
(a)  the timing of the payment of monetary development contributions,
(b)  development levies,
(c)  the imposition of development contribution conditions or development levy conditions that allow deferred or periodic payment.
(4)  A contributions plan that provides for the imposition of development contribution conditions or development levy conditions in relation to the issue of a complying development certificate must provide that monetary payments in accordance with the conditions must be made before the commencement of the building work or subdivision work authorised by the certificate.
(5)  In determining the development contribution rates or development levy percentages for different types of development, the council must consider the conditions that may be imposed under the Act, section 4.17(6)(b) or the Local Government Act 1993, section 97(1)(b).
(6)  A contributions plan may authorise monetary development contributions or development levies paid for different purposes to be pooled and applied progressively for the different purposes only if the council is satisfied that the pooling and progressive application will not unreasonably prejudice the carrying into effect, within a reasonable time, of the purposes for which the money was originally paid.
213   Public exhibition of draft contributions plans
(1)  After preparing 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.
(2)  This section does not apply to a draft contributions plan if—
(a)  the plan is a subsequent contributions plan that amends a contributions plan, and
(b)  the Minister has given written notice to the council that this section does not apply.
214   Approval of contributions plans
(1)  After considering any submissions about the draft contributions plan that have been duly made, the council may—
(a)  approve the plan in the form in which it was publicly exhibited, or
(b)  approve the plan with any alterations the council considers appropriate, or
(c)  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 contain the council’s reasons for the decision.
(4)  A contributions plan comes into effect on—
(a)  the day on which notice of the council’s decision to approve the plan is published on the council’s website, or
(b)  a later day specified in the notice.
215   Amendment or repeal of contributions plan
(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 a decision to repeal the plan on its website.
(3)  At least 14 days before repealing a contributions plan under subsection (2)(b), the council must publish notice of its intention to repeal the plan, and the reasons for the repeal, on its website.
(4)  The repeal of a contributions plan under subsection (2)(b) takes effect on the day on which the notice under subsection (2)(b) is published on the council’s website.
(5)  A council may make the following kinds of amendments to a contributions plan without preparing a new contributions plan—
(a)  minor typographical corrections,
(b)  changes to the rates of development contributions set out in the plan to reflect quarterly or annual variations to—
(i)  readily accessible index figures adopted by the plan, such as the Consumer Price Index, or
(ii)  index figures prepared by or on behalf of the council from time to time that are adopted by the plan,
(c)  the omission of details of works that have been completed.
216   Review of contributions plan
(1)  A council must keep a contributions plan under review and, if the plan specifies a date by which a review must be done, must review the plan by the date.
(2)  A council must also consider any submissions about contributions plans received from public authorities or the public.
Division 4 Records to be kept by councils—the Act, Part 7
217   Councils must keep contributions register
(1)  A council that imposes development contribution conditions or development levy conditions on development consents must keep a contributions register.
(2)  The contributions register must contain the following—
(a)  details of each development consent subject to a development contribution condition or development levy condition, including the following—
(i)  the development application to which the development consent relates,
(ii)  the relevant consent authority,
(iii)  the day on which the development consent was granted,
(b)  the nature and extent of the development contribution or development levy required by the condition for each public amenity or public service, including the following—
(i)  the purpose for which the contribution or levy was received,
(ii)  the value and location of any land dedicated or material public benefit provided,
(iii)  the total contribution or levy payable,
(iv)  the total contribution or levy received,
(c)  the contributions plan under which the development contribution condition or development levy condition was imposed,
(d)  the day on which the development contribution or development levy required by the condition was received, and its nature and extent.
s 217: Am 2021 (759), Sch 8[4].
218   Councils must keep accounting records for development contributions and development levies
(1)  A council must keep accounting records that allow development contributions or development levies received in the form of money, and any additional amounts earned from the investment of that money, to be distinguished from all other money held by the council.
(1A)  The accounting records for a contributions plan must identify the following—
(a)  all contributions received by the council under the plan,
(b)  the monetary amount or value of each contribution,
(c)  whether the contributions were in the form of—
(i)  money, or
(ii)  land, or
(iii)  a material public benefit, other than money or land, or
(iv)  a combination of the things in subparagraphs (i)–(iii).
(2)  The accounting records for a contributions plan must indicate the following—
(a)  all development contributions or development levies received under the plan, by reference to the various kinds of public amenities and public services for which they have been received and for which expenditure is authorised by the plan,
Example—
Public amenities and public services include open space, roads and traffic facilities, community facilities and drainage and stormwater management.
(b)    (Repealed)
(c)  for development contributions or development levies paid for different purposes—the pooling or progressive application of the contributions or levies for the different purposes, in accordance with—
(i)  the requirements of the plan, or
(ii)  a ministerial direction under the Act, Division 7.1,
(d)  the amounts spent in accordance with the plan, by reference to the various kinds of public amenities and public 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,
(a1)  the value of land and the value of material public benefits, other than land or money, contributed,
(b)  the total amounts of development contributions or development levies received in the form of money during the period, by reference to the various kinds of public amenities and public services for which they have been received,
(c)  the total amounts spent in accordance with the contributions plan during the period, by reference to the various kinds of public amenities and public services for which they have been spent,
(d)  the outstanding obligations of the council to provide public amenities and public services, by reference to the various kinds of public amenities and public services for which development contributions or development levies have been received in the form of money during that or any previous accounting period.
s 218: Am 2021 (759), Sch 8[5]–[7].
218A   Matters to be included in annual reports of councils
(1)  A council must disclose, in its annual report, how development contributions and development levies have been used or expended under each contributions plan.
(2)  The annual report must contain the following details for each project for which the contributions or levies have been used or expended—
(a)  the project identification number and description,
(b)  the kind of public amenity or public service to which the project relates,
(c)  the amount of monetary contributions or levies used or expended on the project,
(d)  the percentage of the cost of the project funded by contributions or levies,
(e)  the amounts expended that have been temporarily borrowed from money to be expended for another purpose under the same or another contributions plan,
(f)  the value of the following used for the project—
(i)  land,
(ii)  material public benefit other than money or land,
(g)  whether the project is complete.
(3)  The annual report must also contain—
(a)  the total value of all contributions and levies received during the period covered by the annual report, and
(b)  the total value of all contributions and levies expended during the period covered by the annual report.
(4)  The information required to be included in the annual report must also be published on the NSW planning portal.
s 218A: Ins 2021 (759), Sch 8[8].
219   Councils must prepare annual statements
(1)  As soon as practicable after the end of each financial year, a council must prepare an annual statement for the contributions plans in force in its area.
(2)  The annual statement must disclose, for each contributions plan, the information required by this Division to be included in its accounting records or notes to its annual financial report.
220   Councils must keep certain records publicly available
(1)  A council must publish the following on the NSW planning portal and the council’s website—
(a)  each current contributions plan,
(b)  the current development contribution rates under each contributions plan,
(c)  all annual statements,
(d)  the contributions register.
(2)    (Repealed)
(3)  Subject to the Local Government Act 1993, section 428, the annual statement may be included in, or form part of, the annual report prepared by the council under that section.
s 220: Am 2021 (759), Sch 8[9] [10].
Division 5 Development areas
221   Notice of proposal to constitute development area—the Act, s 7.38(4)
Written notice of the Planning Secretary’s proposal to include the whole or part of a council’s area in a development area must be given to the council.
222   Assessment of loan commitments of councils in development areas—the Act, s 7.42(1)
(1)  An assessment of a council must 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 the Act, section 7.42(1).
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 for 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 for all rateable land in the areas, or parts of the areas, of all the councils in the development area.
(2)  The Planning Ministerial Corporation is not required to notify a council of its intention to make an assessment.
(3)  After making an assessment of a council, the Planning Ministerial Corporation must serve notice of the assessment on the council on or before 1 April before the financial year in which the assessed amount must be paid.
(4)  For the purposes of the Act, section 7.42(4), the prescribed day is the day occurring 3 months after notice of the assessment is served on the council.
Part 10 Paper subdivisions—the Act, Sch 7
Division 1 Preliminary
223   Definitions
(1)  For the purposes of the Act, Schedule 7, clause 1, definition of subdivision works, 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 Part—
co-owner of a lot means a person who owns a lot jointly with 1 or more other persons.
contaminated land has the same meaning as in the Act, Schedule 6.
relevant authority includes a proposed relevant authority.
remediation has the same meaning as in State Environmental Planning Policy (Resilience and Hazards) 2021, Chapter 4.
s 223: Am 2022 (40), Sch 1[43].
Division 2 Preparation and notice of proposed development plans
224   Content of development plans
A development plan must contain the following—
(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 will 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.
225   Preparation of development plans
(1)  A relevant authority must give the Minister written notice if it proposes to prepare a development plan on its own initiative.
(2)  A relevant authority that prepares a development plan must consult with and consider submissions from—
(a)  the public authorities likely to be affected by the proposed development plan, and
(b)  each council in whose area the land is located.
226   Notice of proposed development plans and ballots
(1)  A relevant authority that proposes to adopt a development plan must, not less than 14 days before the ballot papers are issued for the ballot under Division 3, publish on the NSW planning portal a notice containing the following information—
(a)  that the relevant authority proposes to adopt a development plan,
(b)  the website on which the proposed development plan will be published,
(c)  the day 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, telephone number and email address of the relevant authority.
(2)  The relevant authority must also—
(a)  give a copy of the notice to each council in whose area the land is located, and
(b)  display, on or near 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.
Division 3 Consent by owners
227   Ballot to be held
(1)  Consent to a proposed development plan by owners of the land subject to the plan must be determined by a postal ballot held by the relevant authority proposing the plan.
(2)  The relevant authority must—
(a)  determine the form of the ballot paper, and
(b)  fix the dates for forwarding 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)  The ballot paper must specify, or require the owner to specify, the following—
(a)  the name of the owner,
(b)  the lot and deposited plan of all land held by the owner that is subject to the proposed development plan,
(c)  the name of any other co-owner of the lot.
(5)  The returning officer may be assisted by a person approved by the relevant authority.
228   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)  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.
(3)  Each owner of land subject to the proposed development plan is entitled to 1 ballot paper, whether the land—
(a)  consists of 1 or more lots, or
(b)  is owned with other co-owners or the same co-owners.
(4)  The returning officer must, at least 28 days before the date fixed for the closing of the ballot, send by post or otherwise deliver the following to each owner entitled to a ballot paper—
(a)  1 ballot paper,
(b)  a statement of the place, date and time at which the proposed development plan is available for inspection or the website on which it may be found,
(c)  an envelope (the outer envelope) addressed to the returning officer, which has the name and address of the owner and the lots and deposited plan numbers of the land to which the ballot paper relates marked on the reverse side,
(d)  a small envelope (the inner envelope) in which the ballot paper must be placed,
(e)  a statement relating to the ballot in a form approved by the Planning Secretary.
(5)  The returning officer may send a duplicate ballot paper to an owner if the returning officer is satisfied that—
(a)  the owner has not received a ballot paper or the ballot paper has been lost, spoilt or destroyed, and
(b)  the owner has not already voted.
(6)  If a duplicate ballot paper is sent, the relevant outer envelope must be marked “duplicate”.
229   Voting
An owner casts a vote in a 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.
230   Safe keeping of ballot papers
(1)  The returning officer must provide a ballot box that must—
(a)  be secured immediately before the ballot papers are delivered to the owners in accordance with this Division, and
(b)  remain secured until the close of the ballot.
(2)  The returning officer must place the outer envelopes in the ballot box no later than the time and date fixed on the ballot paper for the closing of the ballot.
(3)  The returning officer must keep the following materials in the ballot box for a period of not less than 3 months after the ballot or for a longer period directed by the Planning Secretary—
(a)  ballot papers,
(b)  rejected outer envelopes,
(c)  the voting roll.
231   Counting of votes
(1)  As soon as practicable after the date fixed for the closing of the ballot, the returning officer must, in the presence of scrutineers that may be appointed by the relevant authority conducting the ballot, open the ballot box and deal with the contents in accordance with this section.
(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 method, 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 a 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 in the method specified in 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 is taken to be 1 formal vote consenting to the development plan for the lot,
(b)  otherwise—the vote is taken not to be a formal vote in favour of consent to the development plan for the lot.
232   Result of ballot
(1)  The returning officer must count all votes cast and sign a statement containing the following information—
(a)  the total number of owners who are eligible to vote,
(b)  the number of formal votes by the owners consenting to the development plan,
(c)  the number of formal votes by the owners against consent to the development plan,
(d)  the number of informal votes by the owners,
(e)  the number of envelopes marked “rejected”,
(f)  the number of lots of land in relation to which no votes were cast,
(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,
(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.
(2)  The returning officer must give the relevant authority and the Planning Secretary written notice of the result of the ballot and a copy of the voting roll.
(3)  In this section—
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.
Division 4 Adoption and amendment of development plans
233   Adoption of development plans
(1)  A development plan is adopted by a relevant authority if—
(a)  the relevant authority resolves to adopt the plan or takes other action that is necessary to take the decision to adopt the plan, and
(b)  the relevant authority publishes notice of the adoption of the plan on the NSW planning portal within 28 days after the decision of the relevant authority to adopt the plan.
(2)  A relevant authority must not adopt a development plan unless it is satisfied that the consent of the owners, as referred to in the Act, Schedule 7, clause 3(2)(g), has been obtained.
(3)  A development plan that is adopted by a relevant authority is taken to be in force in relation to the subdivision land for the purposes of the Act, Schedule 7, clause 4(5).
234   Amendment of development plans
A proposed amendment to a development plan is adopted by the relevant authority if the relevant authority—
(a)  resolves to adopt the amendment or takes other action that is necessary to take the decision to adopt the amendment, and
(b)  within 28 days after the decision to adopt the amendment—gives written notice to the following—
(i)  the Minister,
(ii)  the owners of the land to which the development plan applies,
(iii)  each council in whose area the land is located.
235   Additional requirements for certain amendments
(1)  A relevant 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 section 226 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 subsection (1)(b), a ballot must be held in accordance with Division 3.
(3)  Division 3 applies to the proposed amendment in the same way as it applies to a proposed development plan.
(4)  A relevant 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 on the NSW planning portal that specifies the following—
(i)  the website on which the proposed amendment is published,
(ii)  the period of at least 28 days during which submissions may be made to the relevant authority about the proposed amendment,
(iii)  the name, telephone number and email address of the relevant authority, and
(b)  give the notice to each council in whose area the land is located, and
(c)  display, during the submission period, the notice on or near the land to which the development plan applies, and
(d)  make the proposed amendment publicly available.
(5)  Before adopting an amendment, the relevant authority must consider any submissions received during the submission period.
(6)  In this section—
major amendment means an amendment to a development plan that is not a minor amendment and that—
(a)  if adopted, would, in the Minister’s opinion, 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 the Land Acquisition (Just Terms Compensation) Act 1991, Part 3, Division 4.
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 paid by 1 or more owners of the land by no more than 5% in a particular case.
Division 5 Miscellaneous
236   Contributions by owners
(1)  A notice given under the Act, Schedule 7, clause 9(1) must specify—
(a)  the amount of the contribution sought, and
(b)  the period, not less than 90 days, within which the contribution must be paid.
(2)  For the purposes of the Act, Schedule 7, clause 9(5), 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 on which the land is dedicated or traded, as determined by the Valuer-General under the Valuation of Land Act 1916.
237   Powers of entry
(1)  This section applies to entry onto land under the Act, Schedule 7, clause 15.
(2)  Entry may be made only at a reasonable hour in the daytime or at an 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.
238   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 relevant authority of a development plan relating to land in the area of the council,
(b)  the making of a subdivision order or an amendment to a subdivision order relating to land in the area of the council,
(c)  the completion of subdivision works carried out by or on behalf of the relevant authority on land in the area of the council.
239   Reporting requirements for relevant authorities
(1)  A relevant authority under a subdivision order must, no later than 3 months after the end of each financial year, give a written report to the Minister about the following—
(a)  actions taken during the year by the relevant authority for the purposes of implementing the development plan for the subdivision land,
(b)  details of purchases and sales or other acquisitions or disposals of subdivision land by the relevant authority during the year, including details of compensation and other amounts paid or received by the relevant authority,
(c)  details of contributions required to be made, and made or not made, by owners of subdivision land during the year under the subdivision order,
(d)  details of amounts paid by the relevant authority during the year from funds received for carrying out subdivision works,
(e)  other matters specified by the Minister by written notice to the relevant authority relating to the subdivision order,
(f)  other matters the relevant authority considers 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, give 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 relevant authority in relation to its activities under the subdivision order,
(c)  details of any unspent funds collected by the relevant authority under the subdivision order,
(d)  details of a proposed scheme for distribution of the unspent funds and of consultation with owners of the subdivision land about the scheme,
(e)  details of purchases and sales or other acquisitions or disposals of subdivision land by the relevant authority for the purposes of the subdivision order, including details of amounts paid or received by the relevant authority,
(f)  details of the subdivision land owned by the relevant authority,
(g)  details of the notification by the relevant authority to owners of the subdivision land of the completion of the implementation of the development plan.
Part 11 Council registers and other records—the Act, s 4.58
240   Council to keep a register of development applications and development consents
(1)  This section applies to—
(a)  a development application that is made to a council as the consent authority, and
(b)  a development consent granted by the council as the consent authority, and
(c)  other development applications and development consents that are provided to a council under this Regulation, when the council is not the consent authority.
(2)  A council must keep a register containing the following information about each development application—
(a)  the registered number of the application,
(b)  the day on which the application was made,
(c)  the amount of the fees payable in relation to the application,
(d)  the day on which the fees were paid,
(e)  the day on which the application was determined.
(3)  The register must also contain the following information about each development consent—
(a)  the name and address of the person to whom the development consent was granted,
(b)  the address and folio identifier of the land to which the development consent relates,
(c)  the day on which the development consent was granted,
(d)  a brief description of the subject matter of the development consent, including a statement about whether the development is residential, commercial, industrial or another kind,
(e)  the conditions of the development consent,
(f)  the duration of the development consent,
(g)  the day on which the development consent became effective,
(h)  whether the development consent is revoked, modified or surrendered,
(i)  the day on which notice of the grant of the development consent was published on the council’s website for the purposes of the Act, section 4.59,
(j)  the date of issue of a related construction certificate or subdivision works certificate,
(k)  the day on which building work or subdivision work commenced under the development consent,
(l)  the name and registration number of the principal certifier for the building work or subdivision work to which the development consent relates,
(m)  for a development consent that relates to residential building work—
(i)  the name of each licensee and owner-builder, and
(ii)  the name of the approved insurer, if relevant, of the licensee under the Home Building Act 1989, Part 6, and
(iii)  the number endorsed on each contractor licence or permit, if the number is notified to the council under this Regulation,
(n)  for a development consent with a condition under the Act, section 4.17(10B)—the outcome of a review carried out by the consent authority under the condition,
(o)  the date of issue of a related subdivision certificate or occupation certificate,
(p)  the approvals taken, by the Act, section 4.12, to have been granted under the Local Government Act 1993,
(q)  the approvals under any Act that were considered as part of the integrated development process.
(4)  The register must contain the following indexes of the development consents—
(a)  an index prepared by reference to the address of the land to which each development consent relates,
(b)  an index prepared by reference to the chronological order of the granting of each development consent.
(5)  The register must be—
(a)  kept in electronic form, and
(b)  published on the council’s website.
241   Council to keep a register of complying development certificates
(1)  A council must keep a register containing the following information about each application for a complying development certificate and each complying development certificate for development on land in the council’s area—
(a)  the day on which the application was lodged,
(b)  the name and address of the applicant,
(c)  the address and folio identifier of the land to which the complying development certificate relates,
(d)  the day on which the complying development certificate was issued or refused,
(e)  if the complying development certificate was issued or refused by a registered certifier—the name and registration number of the registered certifier,
(f)  the day on which building work or subdivision work to which the complying development certificate relates commenced,
(g)  the name and registration number of the principal certifier for the building work or subdivision work,
(h)  for a complying development certificate that relates to residential building work—
(i)  the name of each licensee and owner-builder, and
(ii)  the name of the approved insurer, if relevant, of the licensee under the Home Building Act 1989, Part 6, and
(iii)  the number endorsed on each contractor licence or permit, if the number is notified to the council under this Regulation,
(i)  the date of issue of a related subdivision certificate or occupation certificate,
(j)  the day on which notice of the issue of the complying development certificate was published on the council’s website for the purposes of the Act, section 4.59.
(2)  The register must contain the following indexes of the complying development certificates—
(a)  an index prepared by reference to the address of the land to which each complying development certificate relates,
(b)  an index prepared by reference to the chronological order of the issuing of each complying development certificate.
(3)  The register must be—
(a)  kept in electronic form, and
(b)  published on the council’s website.
(4)  This section applies to an application for a complying development certificate and a complying development certificate, whether or not the council is the certifier.
242   Council to keep certain documents relating to development applications and consents
(1)  This section applies to—
(a)  a development application that is made to the council as the consent authority, and
(b)  a development consent granted by the council as the consent authority, and
(c)  other development applications, development consents and documents that are provided to the council under this Regulation, when the council is not the consent authority or the certifier.
(2)  A council must keep the following documents, or a copy of the documents, for each development application and each development consent—
(a)  the development application,
(b)  the post-determination notice given to the applicant under the Act, section 4.18,
(c)  an instrument by which some other development consent or existing use right conferred by the Act, Division 4.11 has been modified or surrendered,
(d)  a decision of the Court in relation to a development consent granted by the Court on appeal from the determination of the council,
(e)  a recommendation made by a relevant employee of the council in relation to the determination of the application,
(f)  if the development consent is revoked, modified or surrendered—the instrument of revocation, modification or surrender,
(g)  the notification of the determination to issue a related construction certificate or subdivision works certificate, including—
(i)  any construction certificate or subdivision works certificate issued, and
(ii)  the related plans and specifications and other documents that were given to the council,
(h)  the notice of the grant of the development consent published on the council’s website for the purposes of the Act, section 4.59,
(i)  the notification of the appointment of the principal certifier,
(j)  the notification of the commencement of building work or subdivision work,
(k)  the notification of the determination of an application for a related occupation certificate, including any occupation certificate issued,
(l)  the notification of the determination of an application for a related subdivision certificate, including the endorsed plan of subdivision,
(m)  the notification of the determination of an application for a related compliance certificate, including—
(i)  any compliance certificate issued, and
(ii)  the related plans and specifications and other documents that were given to the council,
(n)  a decision of the Court in relation to 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 a construction certificate or compliance certificate and details of the assessment methods used to establish compliance with the relevant performance requirements under the Building Code of Australia,
(p)  the record of an inspection made for the purposes of the issue of a construction certificate.
(3)  A council must publish the documents required to be kept under this section on its website.
243   Council to keep certain documents relating to complying development certificates
(1)  A council must keep the following documents, or a copy of the documents, in relation to each application for a complying development certificate and each complying development certificate for development on land in the council’s area—
(a)  the determination of the application for a complying development certificate, including—
(i)  any complying development certificate issued, and
(ii)  the related plans and specifications,
(b)  the notice of the issue of the complying development certificate published on the council’s website for the purposes of the Act, section 4.59,
(c)  the notification of the appointment of the principal certifier,
(d)  the notification of the commencement of building work or subdivision work,
(e)  the notification of the determination of an application for a related occupation certificate,
(f)  the notification of the determination of an application for a related subdivision certificate, including the endorsed plan of subdivision,
(g)  the notification of the determination of an application for a related compliance certificate,
(h)  a decision of the Court in relation to an occupation certificate or subdivision certificate issued by the Court on appeal from a determination of the council,
(i)  details of approved performance solutions relating to a compliance certificate and details of the assessment methods used to establish compliance with the relevant performance requirements under the Building Code of Australia,
(j)  the record of an inspection made for the purposes of the issue of a complying development certificate,
(k)  a notice given to, or given by, the council under section 135.
(2)  A council must publish the documents required to be kept under this section on its website.
(3)  This section applies to an application for a complying development certificate and a complying development certificate, whether or not the council is the certifier.
Part 12 Reviews and appeals—the Act, Div 8.2
244   Application for review of consent authority’s decision or determination
(1)  An application for review must be—
(a)  in the approved form, and
(b)  submitted on the NSW planning portal.
(2)  An application for review must be submitted on the NSW planning portal no later than—
(a)  for review of a determination of a modification application by a consent authority—28 days after the determination, or
(b)  for review of a decision by a council to reject and not determine a development application—14 days after the applicant is notified of the decision.
Note—
The Act, section 8.3(2) provides for when an application for review of a determination by a consent authority of an application for development consent must be made.
(3)  The fees payable for an application for review are specified in Schedule 4 and determined in accordance with Part 13.
(4)  An application for review is lodged on the day on which the fees payable for the application under this Regulation are paid.
245   Notice of application for review of consent authority’s decision or determination
(1)  The notice of an application for review, as required under the Act, Schedule 1, clause 20A, must contain the following information—
(a)  a brief description of the application for review and the land to which it relates,
(b)  a statement that submissions about the application for review may be made to the council during the period specified in the Act, Schedule 1, clause 20A.
(2)  An application for review must be otherwise notified or advertised in the same way as the development application or modification application was originally notified or advertised.
(3)  The consent authority must, using the NSW planning portal, give a copy of the application for review to each concurrence authority for the development to which the application relates.
(4)  The fee payable for the notice under this section is specified in Schedule 4.
246   Notice of consent authority’s review
(1)  As soon as practicable after determining an application for review, the consent authority must notify the following of the determination—
(a)  the applicant,
(b)  if the application applies to land owned by a Local Aboriginal Land Council—the New South Wales Aboriginal Land Council, but not if the review confirms the determination,
(c)  each person who made a submission under the Act in relation to the original application.
(2)  The applicant must be notified through the NSW planning portal.
247   Deemed refusal period for consent authority reviews
A council is taken to have refused an application for review of a decision to reject and not determine a development application or modification application if it does not determine the application for review within 14 days after the application for review is made.
248   Deemed refusal period for Court appeals
(1)  For the purposes of the Act, section 8.22(2), the period of 40 days after an application under the Act, section 4.54 is made is prescribed.
(2)  For the purposes of the Act, section 8.25(1)(b), the period of 40 days after the later of the following is prescribed—
(a)  the day on which the application for the building information certificate is made,
(b)  if the applicant receives a notice under the Act, section 6.26(2) to supply information—the day on which the information is supplied.
Part 13 Fees
Division 1 Preliminary—the Act, s 7.44
249   Definitions
In this Part—
application means the following—
(a)  a development application, including for State significant development,
(b)  a modification application, including for State significant development,
(c)  an application for approval of State significant infrastructure,
(d)  a request for modification of an approval of State significant infrastructure.
concept component of a staged application means the part of a concept development application or a staged infrastructure application that sets out concept proposals for the development of a site or infrastructure.
planning reform services means—
(a)  the monitoring and reviewing by the Planning Secretary of the practices and procedures followed by consent authorities in dealing with applications for the following purposes—
(i)  assessing the efficiency and effectiveness of the practices and procedures,
(ii)  ensuring the practices and procedures comply with the provisions of the Act and this Regulation, and
(b)  the monitoring and reviewing by the Planning Secretary of the following provisions of environmental planning instruments for the purposes of assessing the effectiveness of the provisions in achieving their intended effect and making recommendations for their improvement—
(i)  provisions that control development,
(ii)  provisions that consent authorities are required to consider when dealing with applications, and
(c)  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.
staged infrastructure application has the same meaning as it has in the Act, section 5.20.
250   Services covered by fees for development applications
(1)  The services covered by the fee for a development application, other than an application for State significant development or approval of State significant infrastructure, include the following—
(a)  the receipt of the application and internal referrals of the application,
(b)  consideration of the application for the purpose of determining if 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, 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)  planning reform services.
(2)  The services covered by the fee for a development application for State significant development or approval of State significant infrastructure include planning reform services.
251   Estimated cost of development
(1)  If a fee specified in Schedule 4 is based on the estimated cost of the development, the estimated cost must be determined by reference to a genuine estimate of the following—
(a)  for development involving the erection of a building that is State significant development or State significant infrastructure—the capital investment value of the development,
(b)  for development involving the erection of a building that is not State significant development or State significant infrastructure—the costs associated with the construction of the building and the preparation of the building for the purpose for which it will be used, such as the costs of installing plant, fittings, fixtures and equipment,
(c)  for development involving the carrying out of a work—the construction costs of the work,
(d)  for development involving the demolition of a building or work—the costs of demolition.
(2)  For the purposes of determining the fee for an application for development referred to in subsection (1)(b), (c) or (d), a consent authority must use the estimate specified in the application, unless the consent authority is not satisfied that the estimate is genuine or accurate.
(3)  For the purposes of 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.
Division 2 Determination of fees generally—the Act, s 7.44
252   Planning Secretary may determine fees
(1)  The Planning Secretary may determine, either generally or in a particular case, the fee payable for doing anything referred to in the Act, section 7.44(1).
(2)  In determining the fee, the Planning Secretary must consider the cost to the Minister, the Planning Ministerial Corporation, the Department or the Planning Secretary of doing the thing referred to in that subsection.
(3)  If the Planning Secretary has not determined a fee under subsection (1), the maximum fee that may be imposed under the Act, section 7.44(1) is 120% of the cost to the Minister, the Planning Ministerial Corporation, the Department or the Planning Secretary of doing the thing referred to in that subsection.
253   Waiver and refund of fees
(1)  A person or body to whom a fee or charge is payable under this Regulation may waive or refund payment of all or part of the fee or charge if the person or body considers it is appropriate to do so.
Example—
A consent authority may refund the whole or part of an application fee paid in relation to a development application that is withdrawn before it is determined.
(2)  A concurrence authority or an approval body may waive all or part of a fee payable to the authority or body for its concurrence or approval by giving written notice to—
(a)  a consent authority, in relation to concurrence or approval fees collected by the consent authority, or
(b)  the Planning Secretary, in relation to concurrence or approval fees collected through the NSW planning portal.
(3)  A waiver under subsection (2) may be given—
(a)  generally, or
(b)  in relation to a particular class of applications, or
(c)  in relation to a particular application.
254   Circumstances in which refund of fees required
(1)  If a consent authority rejects an application, the consent authority must refund to the applicant the whole of the fee paid for the application.
(2)  If a consent authority is paid a fee for giving notice of the following development, the consent authority must refund to the applicant any part of the fee that is not spent in giving the notice—
(a)  designated development,
(b)  nominated integrated development,
(c)  threatened species development,
(d)  Class 1 aquaculture development,
(e)  prohibited development,
(f)  other development for which a community participation plan requires notice to be given.
(3)  If a consent authority is paid a fee for giving notice of a modification application, the consent authority must refund to the applicant any part of the fee that is not spent in giving the notice.
(4)  If a consent authority is paid an additional fee for an application that is accompanied by a statement of a qualified designer, the consent authority must refund to the applicant the additional fee, if the development is not referred to a design review panel.
(5)  Subsections (3) and (4) do not apply to fees paid in relation to—
(a)  a development application for State significant development, or
(b)  an application for approval of State significant infrastructure,
Division 3 Fees for development applications, including State significant development and State significant infrastructure—the Act, ss 4.64 and 5.29
255   Information about development application fees
(1)  A consent authority must publish the following on its website—
(a)  the consent authority’s scale of fees for applications generally,
(b)  the amount of the fee to accompany an application of a particular kind, if determined by the consent authority.
(2)  This section does not apply to fees for State significant infrastructure.
256   Determination of fees for applications
(1)  The fee for an application must be determined in accordance with this Part and Schedule 4 by—
(a)  if the application relates to State significant development or State significant infrastructure—the Planning Secretary, or
(b)  otherwise—the consent authority.
(2)  The determination of the fee for an application must be made before, or within 14 days after—
(a)  if the application relates to State significant infrastructure—the environmental impact statement is submitted to the Planning Secretary under the Act, section 5.17, or
(b)  otherwise—the application is submitted on the NSW planning portal.
(3)  The determination takes effect when notice of the determination is given to the applicant through the NSW planning portal.
(4)  The fee for an application may consist of the sum of 1 or more fees for different matters.
Note—
Schedule 4 specifies various fees for different matters, including the following—
(a)  different fees for different kinds of development,
(b)  additional fees for certain kinds of development,
(c)  fees payable if a consent authority is required to publicly notify a development application or other document,
(d)  fees payable to an approval body for integrated development and to a concurrence authority for development requiring concurrence.
(5)  If a fee has been determined and notified to the applicant but has not been paid, the consent authority, or the Minister if the application relates to State significant infrastructure, may refuse to consider the application.
(6)  In this section—
application includes an application for review under the Act, section 8.3.
257   Timing for payment of certain additional fees
If State significant infrastructure is declared to be critical State significant infrastructure after the fee for the application for approval of State significant infrastructure is due or paid, the additional fee for the approval of critical State significant infrastructure is payable within 14 days after the Planning Secretary notifies the applicant of the additional fee.
258   Concept development applications other than State significant development
(1)  The fee payable for a concept development application in relation to a site, and for a subsequent development application for part of the site, is the fee that would be payable if a single development application were required for all development on the site.
(2)  This section does not apply to State significant development.
259   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 section does not prohibit the charging of a fee that is specifically prescribed by this Regulation or the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.
(3)  This section does not apply to a development application for State significant development.
Division 4 Miscellaneous fees—the Act, s 7.44
260   Fees for proponents of State significant development
(1)  The Planning Secretary may require an SSD proponent to pay a fee determined by the Planning Secretary that does not exceed the reasonable costs incurred by the Department in exercising the functions under section 280 in relation to the request.
(2)  In this section—
SSD proponent means a person who requests a Ministerial planning order under the Act, section 4.36(3).
261   Assessment fee for concept component of staged applications for State significant development and State significant infrastructure
(1)  The Planning Secretary may require the payment of an additional fee for the assessment of the concept component of a staged application that relates to State significant development or State significant infrastructure.
(2)  The amount of the fee must not exceed the fee that would be payable for all the proposed State significant development or State significant infrastructure to which the concept component of the staged application relates.
(3)  The payment of a fee under this section does not remove the need to pay another fee under this Regulation in relation to—
(a)  a concept development application to the extent to which it sets out detailed proposals for the first stage of development, or
(b)  a staged infrastructure application to the extent to which it sets out detailed proposals for the first stage, or
(c)  another application, including a subsequent application that relates to the staged application.
262   Fees for referral to Independent Planning Commission or Sydney district or regional planning panel
(1)  The Planning Secretary may require the payment of a fee, of no more than the maximum fee specified in Schedule 4, for considering a request that the Minister or the Planning Secretary refer a matter to the Independent Planning Commission or a Sydney district or regional planning panel.
(2)  If the matter is referred, the Planning Secretary may require the payment of a fee, of no more than the maximum fee specified in Schedule 4, for the costs and expenses incurred by—
(a)  the Minister or the Planning Secretary in preparing a report about the referred matter, including any necessary consultation with councils and other relevant agencies, or
(b)  the Independent Planning Commission or a Sydney district or regional planning panel in providing advice to the Minister or the Planning Secretary.
(3)  A fee is not payable under this section in relation to a request made by an SSD proponent under section 260.
263   Public hearing by Independent Planning Commission
(1)  This section applies to a public hearing held by the Independent Planning Commission under the Act, section 2.9(1)(d) that relates to—
(a)  a development application for State significant development, or
(b)  an application for approval of State significant infrastructure.
(2)  The fee payable for the public hearing is the sum of—
(a)  the base fee specified in Schedule 4, and
(b)  an additional fee determined by the Planning Secretary for the estimated costs to the Independent Planning Commission of the public hearing, not exceeding the maximum additional fee specified in Schedule 4.
(3)  The fee is payable by the person making the application to which the hearing relates within 14 days after the Planning Secretary notifies the person of the fee payable.
264   Consideration of planning proposal with State significant development application
(1)  The fee payable for considering a proposed environmental planning instrument in conjunction with a development application for State significant development under the Act, section 4.38(5) is specified in Schedule 4.
(2)  The fee is payable by the person making the development application within 14 days after the Planning Secretary notifies the person of the fee payable.
265   Making environmental impact statements publicly available
The maximum additional fee payable for making an environmental impact statement publicly available under the Act in relation to an application for State significant development or for approval of State significant infrastructure is specified in Schedule 4.
266   Planning reform contributions from development application fees
(1)  This section applies to a development application for development with an estimated cost of more than $50,000 that involves—
(a)  the erection of a building, or
(b)  the carrying out of a work, or
(c)  the demolition of a work or a building.
(2)  A consent authority to whom a development application is made must set aside an amount from the fee paid for the development application for payment to the Planning Secretary for planning reform services.
(3)  The amount must be determined in accordance with the following formula—
 
where—
P represents the amount to be set aside, expressed in dollars rounded down to the nearest dollar.
E represents the estimated cost of the development, expressed in dollars rounded up to the nearest thousand dollars.
(4)  The consent authority must give the Planning Secretary—
(a)  on or before the 14th day of each month—a report in the approved form, in relation to the applications lodged with the consent authority during the previous month, and
(b)  on or before the 28th day of each month—the total amount set aside under this section in relation to the applications.
(5)  The Planning Secretary must apply the amounts received under this section to planning reform services.
(6)  The Planning Secretary may, at any time, waive the requirement for all or part of an amount to be set aside by a consent authority and paid to the Planning Secretary under this section.
(7)  A waiver may be unconditional or subject to conditions.
(8)  This section does not apply to a development application to which section 267 applies.
267   Planning reform contributions from development application fees for State significant development and State significant infrastructure
(1)  This section applies to the following applications—
(a)  a development application for State significant development with an estimated cost of more than $50,000,
(b)  an application for approval of State significant infrastructure with an estimated cost of more than $50,000.
(2)  The Planning Secretary may require the payment of a fee for the application that is to be used for planning reform services.
(3)  The fee payable must not exceed the amount calculated in accordance with the following formula—
 
where—
P represents the amount to be set aside, 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.
(4)  This section does not apply to the concept component of a staged application.
268   Other fees—the Act, section 10.8 and Sch 3, cl 3(2)
(1)  The fee payable for a certified copy of a document, map or plan under the Act, section 10.8(2) is specified in Schedule 4.
(2)  The fee payable for submitting the following on the NSW planning portal is specified in Schedule 4—
(a)  an application for modification of a development consent under the Act, section 4.55(1A) or (2) or 4.56,
(b)    (Repealed)
(c)  an application for a building information certificate,
(d)  an application for the following under the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021
(i)  a construction certificate
(ii)  a subdivision works certificate,
(iii)  an occupation certificate
(iv)  a subdivision certificate.
(3)  The fee payable for using the NSW planning portal to pay a monetary contribution or levy under the Act, Division 7.1 is specified in Schedule 4.
s 268: Am 2022 (142), Sch 1[10].
269   Fees for site compatibility certificates and site verification certificates
(1)  The fee payable for an application for a site compatibility certificate under the following State environmental planning policies is specified in Schedule 4—
(c)    (Repealed)
(2)  The fee for submitting an application under subsection (1) on the NSW planning portal is specified in Schedule 4.
(3)  The fee payable for an application for a site verification certificate under State Environmental Planning Policy (Resources and Energy) 2021, Chapter 2 is specified in Schedule 4.
s 269: Am 2022 (40), Sch 1[44] [45].
Part 14 Bush fire protection—the Act, s 4.14
270   Definitions
In this Part—
bush fire attack level has the same meaning as in the Australian Standard AS 3959:2018, Construction of buildings in bushfire-prone areas.
bush fire attack level–40 (BAL–40) has the same meaning as in Appendix G to the Australian Standard AS 3959:2018, Construction of buildings in bushfire-prone areas.
Note—
More information about bush fire attack level 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 the Rural Fires Act 1997, Part 4, Division 8.
flame zone (BAL–FZ) has the same meaning as in Appendix G to the Australian Standard AS 3959:2018, Construction of buildings in bushfire-prone areas.
Note—
More information about the flame zone, can be found in Table A1.7 of Planning for Bush Fire ProtectionISBN 978 0 646 99126 9, dated November 2019.
post-subdivision bush fire attack level certificate means a certificate that certifies that, at the time of issue—
(a)  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 subdivision plan, and
(b)  part of the land was not in bush fire attack level–40 (BAL–40) or the flame zone (BAL–FZ).
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 identified as an urban release area on the map entitled “Bush Fire Planning—Urban Release Area Map” that is approved, or amended or replaced from time to time, by the Planning Secretary and published on the NSW planning portal.
271   Planning for Bush Fire Protection—the Act, s 4.14(1)(a)
The document entitled Planning for Bush Fire ProtectionISBN 978 0 646 99126 9 dated November 2019 is prescribed.
272   Development excluded from bush fire prone land requirements—the Act, s 4.14(1C)
(1)  This section applies to development on land in an urban release area involving the erection of a building that is, or is ancillary to, a dual occupancy, dwelling house or secondary dwelling.
(2)  Development is excluded from the application of the Act, section 4.14 if the consent authority—
(a)  has been given—
(i)  a bush fire safety authority for the subdivision of the land that was in force on the day on which the development application for the development was lodged and issued no more than 5 years before that day, and
(ii)  a copy of a plan of subdivision that shows the bush fire attack levels for the land and contains a notation from the NSW Rural Fire Service that the plan was considered in determining the application for the bush fire safety authority under the Rural Fires Act 1997, and
(iii)  a post-subdivision bush fire attack level certificate, and
(b)  is satisfied that the development complies with relevant standards specified in the bush fire safety authority relating to setbacks, asset protection zones, provision of water supply or other matters.
(3)  The post-subdivision bush fire attack level certificate must—
(a)  specify the address and folio identifier of the land to which it relates, and
(b)  specify the date of issue, and
(c)  identify the relevant bush fire safety authority, and
(d)  if the subdivision to which the bush fire safety authority relates required development consent—identify the relevant development consent, including the name of the consent authority or certifier, the day on which the consent was granted or issued and the registered number of the consent.
(4)  A post-subdivision bush fire attack level certificate may only be issued by the NSW Rural Fire Service or a recognised consultant.
(5)  Within 7 days after a recognised consultant issues a post-subdivision bush fire attack level certificate, the consultant must give the certificate to the Commissioner of the NSW Rural Fire Service.
(6)  The methodology for determining bush fire attack levels, for the purposes of this section, is the methodology specified in Planning for Bush Fire ProtectionISBN 978 0 646 99126 9, dated 9 November 2019.
273   Fees for post-subdivision bush fire attack level certificates—the Act, s 4.14(1C)(b)
(1)  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.
(2)  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 2–10 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.
274   Bush fire prone land map—the Act, s 10.3(2A)
(1)  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 if—
(a)  the land is in an urban release area, and
(b)  the Commissioner considers that a revision of the map is necessary to—
(i)  record land as bush fire prone land on the map if the bush fire risk is not low, or
(ii)  remove land as bush fire prone land on the map if the bush fire risk is low, or
(iii)  correct, or record changes to, other information relating to land shown on the map.
(2)  For the purposes of subsection (1)(b), the Commissioner of the NSW Rural Fire Service may consider—
(a)  a post-subdivision bush fire attack level certificate applying in relation to the land, and
(b)  other evidence the Commissioner considers relevant.
Part 15 Miscellaneous
Division 1 Sydney district or regional planning panels and local planning panels
275   Functions exercisable by council on behalf of Sydney district or regional planning panel—the Act, s 4.7(2)(h)
(1)  The determination of an application to modify a development consent under the Act, section 4.55 is prescribed as a function of a Sydney district or regional planning panel that must be exercised on behalf of the panel by the council of the area, except as provided by subsection (2).
(2)  A council must not determine an application to modify a development consent under the Act, section 4.55(2) on behalf of a Sydney district or regional planning panel 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.
276   Development applications for land in 2 or more local government areas—the Act, s 4.12
(1)  This section applies to a development application for development located in 2 or more local government areas.
(2)  If a Sydney district or regional planning panel has the function of determining the development application, a separate development application must be lodged with the council for each area in which the development is located.
(3)  If a single local planning panel has been established for 2 or more councils, a separate development application must be lodged with the council for each area in which the development is located.
277   Determination of development applications and modification applications—the Act, s 4.8
(1)  For the purpose of determining a development application, a local planning panel or a Sydney district or regional planning panel may obtain—
(a)  assessment reports, in addition to an assessment report or other information provided by a relevant council, and
(b)  other technical advice or assistance the panel considers appropriate.
(2)  If a development consent is granted by a local planning panel or a Sydney district or regional planning panel subject to a condition referred to in the Act, section 4.16(3) or 4.17(2), the panel is taken to be satisfied about a matter specified in the condition if the council for the area gives written notice to the chairperson of the panel that the matter specified in the condition has been satisfied.
(3)  A local planning panel or a Sydney district or regional planning panel may carry out consultation in relation to a modification application under the Act, section 4.55(2)(b) by directing the general manager of a council for an area to consult the relevant Minister, public authority or approval body on behalf of the panel.
Division 2 Calling in development as State significant development—the Act, s 4.39
278   Advice of Independent Planning Commission
(1)  In providing its advice under the Act, section 4.36(3), the Independent Planning Commission must consider a general issue 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 the issue, the Minister may request the Commission to reconsider the issue.
(3)  This section does not affect the validity of advice given or a decision made under the Act, section 4.36(3).
279   Calling in existing development applications
(1)  This section applies to development declared to be State significant development by a Ministerial planning order under the Act, section 4.36(3) in relation to which a development application has been made but not finally determined before the order is made.
(2)  On making the order, the Minister may, by written direction, require the relevant consent authority—
(a)  to complete any steps in relation to the development application, and
(b)  to give the development application and other relevant documents and information relating to the development to the Minister, and
(c)  to pay a specified proportion of the fees paid in relation to the development application to the Planning Secretary, and
(d)  to notify the applicant, relevant authorities and the other persons or classes of persons specified in the direction that the Minister is now the consent authority for the development.
(3)  If a Ministerial planning order is made, the following apply—
(a)  the development application is taken to be a development application for State significant development,
(b)  an amount payable under this Regulation in relation to the development must be reduced by the amount, if any, payable to the Planning Secretary under subsection (2)(c),
(c)  any steps taken by the relevant consent authority in relation to 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.
280   Orders declaring State significant development
The Planning Secretary may exercise the following functions in relation to a Ministerial planning order under the Act, section 4.36(3)—
(a)  receiving a proponent’s request to make a Ministerial planning order,
(b)  preparing and providing a report to the Independent Planning Commission to assist the Commission in advising the Minister on the State or regional planning significance of the proposed development,
(c)  consulting councils and other relevant agencies for the purpose of preparing the report.
Division 3 Development control orders—the Act, Div 9.3 and Sch 5
281   Notice of development control orders
(1)  If a consent authority, other than a council, proposes to give a development control order that relates 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 by a consent authority under this section or by a council under the Act, Schedule 5, clause 9(2) must be given within 7 days after the notice of intention to give the order is given under the Act, Schedule 5, clause 8.
282   Enforcement of orders by cessation of utilities
(1)  Backpackers’ accommodation and boarding houses are prescribed for the purposes of the Act, Schedule 5, clause 35(1)(b).
(2)  The making of utilities orders for premises used as boarding houses is authorised for the purposes of the Act, Schedule 5, clause 35(10).
283   Form of compliance cost notices—the Act, Sch 5, cl 37(6)(b)
(1)  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 payable under the notice,
(d)  the day by which the amount must be paid,
(e)  the person to whom payment must be made,
(f)  the way in which payment must 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 the Act, section 8.24,
(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.
284   Amounts payable under compliance cost notices—the Act, Sch 5, cl 37(6)(c)
The maximum amount that may be required to be paid under a compliance cost notice for 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.
Division 4 NSW planning portal
285   Use of NSW planning portal—the Act, Sch 3, cl 3
(1)  A relevant authority may use the NSW planning portal to give a document or information to an applicant, or to request a document or information from an applicant, even if this Regulation requires or permits the document or information to be given in another way.
(2)  For the purposes of this Regulation—
(a)  the time at which a document or information is provided by a relevant authority through the NSW planning portal is the time when the document or information is shown on the NSW planning portal to have been provided by the relevant authority, and
(b)  the time at which a document or information is received by an applicant or relevant authority is the time when the document or information becomes capable of being retrieved by the applicant or relevant authority on the NSW planning portal.
(3)  In this section—
document or information includes an application, notification, advice or request.
relevant authority means the following—
(a)  a consent authority,
(b)  a concurrence authority,
(c)  an approval body,
(d)  a council,
(e)  a registered certifier,
(f)  the Planning Secretary.
286   Use of NSW planning portal for consultation, concurrence and approval
(1)  For the purposes of the Act, sections 4.13(1) and 4.64(1)(i), a consent authority must consult with, or obtain the concurrence of, a relevant authority by using the NSW planning portal.
(2)  For the purposes of the Act, sections 4.47(2) and 4.64(1)(o), a consent authority must obtain the general terms of an approval proposed to be granted by a relevant authority in relation to integrated development through the NSW planning portal.
(3)  A response to the consent authority’s consultation, or request for concurrence or for general terms of an approval, must be made by a relevant authority through the NSW planning portal.
(4)  In this section—
electricity supply authority means a person engaged in the distribution of electricity to the public or in the generation of electricity for supply, directly or indirectly, to the public, whether by statute, franchise agreement or otherwise, and includes—
(a)  an energy services corporation within the meaning of the Energy Services Corporations Act 1995, and
(b)  a transmission operator or distributor that holds a licence under the Electricity Supply Act 1995.
relevant authority means the following—
(a)  an approval body,
(b)  a concurrence authority,
(c)  an electricity supply authority,
(d)  the Planning Secretary,
(e)  a public authority.
287   Use of NSW planning portal for public exhibition submissions if Minister is consent authority—the Act, Sch 1, cl 22
(1)  A person must use the NSW planning portal to make submissions during the public exhibition period for development requiring development consent under the Act, Part 4, if the Minister is the consent authority.
(2)  This section applies on and from 1 July 2023.
288   Phasing in of NSW planning portal
(1)  This section applies to an application made without using the NSW planning portal under the Environmental Planning and Assessment Regulation 2000, clause 296, as in force immediately before 1 March 2022.
(2)  The NSW planning portal is not required to be used in relation to the following—
(a)  publishing an extract of a development application,
(b)  a request by a consent authority for more information from an applicant in relation to a development application or modification application,
(c)  an application to amend a development application or modification application,
(d)  the withdrawal of a development application,
(e)  giving notice to an applicant of the determination of a development application, modification application or application for a complying development certificate,
(f)  giving notice to a council of the determination of an application for a complying development certificate,
(g)  providing copies of records of inspection,
(h)  making an application for review.
Division 5 Miscellaneous
289   Building information certificates—the Act, Div 6.7
(1)  An application for a building information certificate must be made through the NSW planning portal.
(2)  A building information certificate must contain the following information—
(a)  a description of the building, or the part of the building, including the address,
(b)  the day on which the building, or the part of the building, was inspected,
(c)  a statement that the council is satisfied about the matters specified in the Act, section 6.25(1),
(d)  a statement that describes the effect of the certificate in the same terms as, or in substantially similar terms to, the Act, section 6.25,
(e)  the date of issue.
(3)  A building information certificate must be issued to an applicant through the NSW planning portal.
290   Planning certificates—the Act, s 10.7
(1)  Schedule 2 sets out the matters required to be specified in a planning certificate.
Note—
See also the Contaminated Land Management Act 1997, section 59(2) that sets out additional matters that must be specified in a planning certificate.
(2)  A planning certificate may be issued containing only the information set out in Schedule 2, section 4.
(3)  The fee payable for an application to a council for a planning certificate is specified in Schedule 4.
(4)  A council may charge a fee, not exceeding the maximum fee specified in Schedule 4, for giving advice in a planning certificate as referred to in the Act, section 10.7(5).
291   Councils required to constitute single local planning panel—the Act, s 2.17(2)(c)
The councils of the following local government areas are prescribed—
(a)  Central Coast,
(b)  Wingecarribee.
292   Reimbursement for local planning panel costs paid by Department—the Act, s 7.44
(1)  This section applies if—
(a)  the Minister constitutes a local planning panel under the Act, section 2.17(5), and
(b)  the costs of the panel are paid from the funds of the Department.
(2)  The Planning Secretary may require the council to pay a fee 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 Department’s funds.
(3)  For the purposes of this section, the costs of a local planning panel are—
(a)  the amounts paid in connection with the appointment and remuneration of members of the panel, and
(b)  other expenses reasonably incurred by the panel in connection with its operation.
293   Community participation requirements
(1)  For the purposes of the Act, section 2.21(2)(f), environmental impact assessment functions under the Act, Division 5.1 are prescribed if—
(a)  a species impact statement or a biodiversity development assessment report is required under the Biodiversity Conservation Act 2016, section 7.8, or
(b)  a species impact statement is required under the Fisheries Management Act 1994, section 221ZX.
(2)  For the purposes of the Act, section 2.23(3)(c), the community participation plan of a council applies to the exercise of the council’s relevant planning functions by—
(a)  a Sydney district or regional planning panel, or
(b)  a local planning panel.
(3)  For the purposes of the Act, section 2.23(3)(c), a Sydney district or regional planning panel or local planning panel is not required to prepare its own community participation plan.
294   Crown development—the Act, s 4.32(2)(a)
The following persons are prescribed as the Crown—
(a)  a public authority, other than a council,
(b)  an Australian university, within the meaning of the Higher Education Act 2001,
(c)  a TAFE establishment, within the meaning of the Technical and Further Education Commission Act 1990,
(d)  without limiting paragraph (a), a Crown cemetery operator, within the meaning of the Cemeteries and Crematoria Act 2013.
295   Modification of Protection of the Environment Operations Act 1997, Part 8.3—the Act, s 9.56(2A)
The Protection of the Environment Operations Act 1997, Part 8.3 applies to an offence under the Environmental Planning and Assessment Act 1979 or this Regulation, with the following modifications—
(a)  a reference in that Part to preventing, controlling, abating or mitigating harm to the environment caused by the commission of the offence is 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 in the Environmental Planning and Assessment Act 1979,
(c)  a reference in that Part to a regulatory authority or the EPA is to be read as a reference to a public authority,
(d)  the reference in the Protection of the Environment Operations Act 1997, section 250(1)(e) to the Environment Trust established under the Environmental Trust Act 1998 is to be disregarded,
(e)  the maximum penalty for an offence under the Protection of the Environment Operations Act 1997, section 251 of failing to comply with an order is $50,000 for a corporation and $10,000 for an individual.
296   Provision of false or misleading information—the Act, s 10.6(3)(d)
(1)  The matters specified in this section are declared to be the provision of information in connection with a planning matter.
(2)  The provision of information in response to a requirement imposed by the following conditions, except a condition imposed under the Act, section 9.40—
(a)  a condition of development consent,
(b)  a condition of an approval to carry out a transitional Part 3A project, within the meaning of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, Schedule 2,
(c)  a condition of an approval to carry out State significant infrastructure under the Act, Division 5.2.
(3)  The provision of information in or for the purposes of a submission in response to the public exhibition of the following documents—
(a)  a draft strategic plan,
(b)  a planning proposal,
(c)  an environmental impact statement,
(d)  a development application or a modification application,
(e)  an application for approval of State significant infrastructure or a request to modify the approval,
(f)  another plan, policy, strategy or document publicly exhibited for a planning purpose by the Department or a council.
297   Planning Secretary may certify certain documents—the Act, s 10.8(1)(b)(i)
The Planning Secretary is prescribed for the certification of documents.
298   Adjournment of Independent Planning Commission public hearings—the Act, Sch 2, cl 8
(1)  A public hearing of the Independent Planning Commission may be adjourned to a specified time or date if the Commission considers the adjournment necessary.
(2)  The requirement to give reasonable notice of a public hearing under the Act, Schedule 2, clause 3 does not apply to a public hearing that is reconvened following an adjournment.
s 298: Rep 2021 (759), sec 298(8). Ins 2022 (142), Sch 1[11].
Schedule 1 Public authorities
section 3(3)
1   Australian Rail Track Corporation Ltd
(1)  Australian Rail Track Corporation Ltd (ACN 081 455 754), but only for the following purposes—
(a)  to be a public authority for development for the purposes of rail and related transport facilities that is State significant infrastructure,
(b)  to be a determining authority for the following development that is permitted without consent by a public authority under State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 2 for—
(i)  development for the purposes of rail infrastructure facilities,
(ii)  development on land in or adjacent to a rail corridor,
(iii)  development for a railway or railway project specified in that Policy, Schedule 2,
(c)  to be a determining authority for the following development that is permitted without consent under another environmental planning instrument—
(i)  development for the purposes of rail infrastructure facilities,
(ii)  development on land in or adjacent to a rail corridor.
(2)  In this section—
rail corridor and rail infrastructure facilities have the same meaning as in State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 2.
2   Port Operators
(1)  A Port Operator, but only for the purposes of being a determining authority for development that is permitted without consent under State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 5 on unzoned land or land in the Lease Area of the port.
(2)  In this section—
Lease Area and Port Operator have the same meaning as in State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 5.
3   Universities
The following universities, but only for the purposes of being a determining authority 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 (Transport and Infrastructure) 2021, Chapter 2 or 3—
(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)  University of Wollongong,
(j)  Western Sydney University.
4   Authorised network operators
An authorised network operator, but only for the purposes of being a determining authority for development for the purposes of an electricity transmission or distribution network operated or to be operated by the authorised network operator that is—
(a)  permitted without consent by a public authority under State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 2, or
(b)  permitted without consent under another environmental planning instrument.
5   Non-government schools
(1)  The proprietor of a registered non-government school, but only for the following purposes—
(a)  to be a public authority in relation to development at the school that is exempt development under State Environmental Planning Policy (Transport and Infrastructure) 2021, section 3.17,
(b)  to be a determining authority for development that is permitted without consent under that Policy, section 3.37 on land in a prescribed zone within the meaning of that Policy, Part 3.4.
(2)  The Planning Secretary may determine that subsection (1) does not apply to a particular proprietor of a registered non-government school.
(3)  The Planning Secretary may vary or revoke a determination under subsection (2).
(4)  A determination, or a variation or revocation of a determination, takes effect—
(a)  on the day on which notice of the determination, variation or revocation is published in the Gazette, or
(b)  on a later day specified in the determination, variation or revocation.
6   Children (Education and Care Services) National Law Regulatory Authority
The Regulatory Authority for New South Wales under the Children (Education and Care Services) National Law (NSW), but only for the purposes of the Act, section 3.18(2).
7   Ministers
A Minister of the Government of New South Wales in relation to the Act, section 4.5(c).
sch 1: Am 2022 (40), Sch 1[31] [46]–[49]; 2022 (333), sec 3(4).
Schedule 2 Planning certificates
section 290
Editorial note—
This Schedule does not take effect until 1 October 2022. Schedule 6, section 8(1) provides that the Environmental Planning and Assessment Regulation 2000, Schedule 4 continues to apply until the end of 30 September 2022.
1   Names of relevant planning instruments and development control plans
(1)  The name of each environmental planning instrument and development control plan that applies to the carrying out of development on the land.
(2)  The name of each proposed environmental planning instrument and draft development control plan, which is or has been subject to community consultation or public exhibition under the Act, that will apply to the carrying out of development on the land.
(3)  Subsection (2) does not apply in relation to a proposed environmental planning instrument or draft development control plan if—
(a)  it has been more than 3 years since the end of the public exhibition period for the proposed instrument or draft plan, or
(b)  for a proposed environmental planning instrument—the Planning Secretary has notified the council that the making of the proposed instrument has been deferred indefinitely or has not been approved.
(4)  In this section—
proposed environmental planning instrument means a draft environmental planning instrument and includes a planning proposal for a local environmental plan.
2   Zoning and land use under relevant planning instruments
The following matters for each environmental planning instrument or draft environmental planning instrument that includes the land in a zone, however described—
(a)  the identity of the zone, whether by reference to—
(i)  a name, such as “Residential Zone” or “Heritage Area”, or
(ii)  a number, such as “Zone No 2 (a)”,
(b)  the purposes for which development in the zone—
(i)  may be carried out without development consent, and
(ii)  may not be carried out except with development consent, and
(iii)  is prohibited,
(c)  whether additional permitted uses apply to the land,
(d)  whether development standards applying to the land fix minimum land dimensions for the erection of a dwelling house on the land and, if so, the fixed minimum land dimensions,
(e)  whether the land is in an area of outstanding biodiversity value under the Biodiversity Conservation Act 2016,
(f)  whether the land is in a conservation area, however described,
(g)  whether an item of environmental heritage, however described, is located on the land.
3   Contributions plans
(1)  The name of each contributions plan under the Act, Division 7.1 applying to the land, including draft contributions plans.
(2)  If the land is in a special contributions area under the Act, Division 7.1, the name of the area.
4   Complying development
(1)  If the land is land on which complying development may be carried out under each of the complying development codes under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, because of that Policy, clause 1.17A(1)(c)–(e), (2), (3) or (4), 1.18(1)(c3) or 1.19.
(2)  If complying development may not be carried out on the land because of 1 of those clauses, the reasons why it may not be carried out under the clause.
(3)  If the council does not have sufficient information to ascertain the extent to which complying development may or may not be carried out on the land, a statement that—
(a)  a restriction applies to the land, but it may not apply to all of the land, and
(b)  the council does not have sufficient information to ascertain the extent to which complying development may or may not be carried out on the land.
(4)  If the complying development codes are varied, under that Policy, clause 1.12, in relation to the land.
5   Exempt development
(1)  If the land is land on which exempt development may be carried out under each of the exempt development codes under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, because of that Policy, clause 1.16(1)(b1)–(d) or 1.16A.
(2)  If exempt development may not be carried out on the land because of 1 of those clauses, the reasons why it may not be carried out under the clause.
(3)  If the council does not have sufficient information to ascertain the extent to which exempt development may or may not be carried out on the land, a statement that—
(a)  a restriction applies to the land, but it may not apply to all of the land, and
(b)  the council does not have sufficient information to ascertain the extent to which exempt development may or may not be carried out on the land.
(4)  If the exempt development codes are varied, under that Policy, clause 1.12, in relation to the land.
6   Affected building notices and building product rectification orders
(1)  Whether the council is aware that—
(a)  an affected building notice is in force in relation to the land, or
(b)  a building product rectification order is in force in relation to the land that has not been fully complied with, or
(c)  a notice of intention to make a building product rectification order given in relation to the land is outstanding.
(2)  In this section—
affected building notice has the same meaning as in the Building Products (Safety) Act 2017, Part 4.
building product rectification order has the same meaning as in the Building Products (Safety) Act 2017.
7   Land reserved for acquisition
Whether an environmental planning instrument or proposed environmental planning instrument referred to in section 1 makes provision in relation to the acquisition of the land by an authority of the State, as referred to in the Act, section 3.15.
8   Road widening and road realignment
Whether the land is affected by road widening or road realignment under—
(a)  the Roads Act 1993, Part 3, Division 2, or
(b)  an environmental planning instrument, or
(c)  a resolution of the council.
9   Flood related development controls
(1)  If the land or part of the land is within the flood planning area and subject to flood related development controls.
(2)  If the land or part of the land is between the flood planning area and the probable maximum flood and subject to flood related development controls.
(3)  In this section—
flood planning area has the same meaning as in the Floodplain Development Manual.
Floodplain Development Manual means the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005.
probable maximum flood has the same meaning as in the Floodplain Development Manual.
10   Council and other public authority policies on hazard risk restrictions
(1)  Whether any of the land is affected by an adopted policy that restricts the development of the land because of the likelihood of land slip, bush fire, tidal inundation, subsidence, acid sulfate soils, contamination, aircraft noise, salinity, coastal hazards, sea level rise or another risk, other than flooding.
(2)  In this section—
adopted policy means a policy adopted—
(a)  by the council, or
(b)  by another public authority, if the public authority has notified the council that the policy will be included in a planning certificate issued by the council.
11   Bush fire prone land
(1)  If any of the land is bush fire prone land, designated by the Commissioner of the NSW Rural Fire Service under the Act, section 10.3, a statement that all or some of the land is bush fire prone land.
(2)  If none of the land is bush fire prone land, a statement to that effect.
12   Loose-fill asbestos insulation
If the land includes residential premises, within the meaning of the Home Building Act 1989, Part 8, Division 1A, that are listed on the Register kept under that Division, a statement to that effect.
13   Mine subsidence
Whether the land is declared to be a mine subsidence district, within the meaning of the Coal Mine Subsidence Compensation Act 2017.
14   Paper subdivision information
(1)  The name of a development plan adopted by a relevant authority that—
(a)  applies to the land, or
(b)  is proposed to be subject to a ballot.
(2)  The date of a subdivision order that applies to the land.
(3)  Words and expressions used in this section have the same meaning as in this Regulation, Part 10 and the Act, Schedule 7.
15   Property vegetation plans
If the land is land in relation to which a property vegetation plan is approved and in force under the Native Vegetation Act 2003, Part 4, a statement to that effect, but only if the council has been notified of the existence of the plan by the person or body that approved the plan under that Act.
16   Biodiversity stewardship sites
If the land is a biodiversity stewardship site under a biodiversity stewardship agreement under the Biodiversity Conservation Act 2016, Part 5, a statement to that effect, but only if the council has been notified of the existence of the agreement by the Biodiversity Conservation Trust.
Note—
Biodiversity stewardship agreements include biobanking agreements under the Threatened Species Conservation Act 1995, Part 7A that are taken to be biodiversity stewardship agreements under the Biodiversity Conservation Act 2016, Part 5.
17   Biodiversity certified land
If the land is biodiversity certified land under the Biodiversity Conservation Act 2016, Part 8, a statement to that effect.
Note—
Biodiversity certified land includes land certified under the Threatened Species Conservation Act 1995, Part 7AA that is taken to be certified under the Biodiversity Conservation Act 2016, Part 8.
Whether an order has been made under the Trees (Disputes Between Neighbours) Act 2006 to carry out work in relation to a tree on the land, but only if the council has been notified of the order.
19   Annual charges under Local Government Act 1993 for coastal protection services that relate to existing coastal protection works
(1)  If the Coastal Management Act 2016 applies to the council, whether the owner, or a previous owner, of the land has given written consent to the land being subject to annual charges under the Local Government Act 1993, section 496B, for coastal protection services that relate to existing coastal protection works.
(2)  In this section—
existing coastal protection works has the same meaning as in the Local Government Act 1993, section 553B.
Note—
Existing coastal protection works are works to reduce the impact of coastal hazards on land, such as seawalls, revetments, groynes and beach nourishment, that existed before 1 January 2011.
20   Western Sydney Aerotropolis
Whether under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 4 the land is—
(a)  in an ANEF or ANEC contour of 20 or greater, as referred to in that Chapter, section 4.17, or
(c)  shown on the Obstacle Limitation Surface Map, or
(d)  in the “public safety area” on the Public Safety Area Map, or
(e)  in the “3 kilometre wildlife buffer zone” or the “13 kilometre wildlife buffer zone” on the Wildlife Buffer Zone Map.
21   Development consent conditions for seniors housing
If State Environmental Planning Policy (Housing) 2021, Chapter 3, Part 5 applies to the land, any conditions of a development consent granted after 11 October 2007 in relation to the land that are of the kind set out in that Policy, section 88(2).
22   Site compatibility certificates and development consent conditions for affordable rental housing
(1)  Whether there is a current site compatibility certificate under State Environmental Planning Policy (Housing) 2021, or a former site compatibility certificate, of which the council is aware, in relation to proposed development on the land and, if there is a certificate—
(a)  the period for which the certificate is current, and
(b)  that a copy may be obtained from the Department.
(2)  If State Environmental Planning Policy (Housing) 2021, Chapter 2, Part 2, Division 1 or 5 applies to the land, any conditions of a development consent in relation to the land that are of a kind referred to in that Policy, section 21(1) or 40(1).
(3)  Any conditions of a development consent in relation to land that are of a kind referred to in State Environmental Planning Policy (Affordable Rental Housing) 2009, clause 17(1) or 38(1).
(4)  In this section—
former site compatibility certificate means a site compatibility certificate issued under State Environmental Planning Policy (Affordable Rental Housing) 2009.
sch 2: Am 2022 (40), Sch 1[50]–[54].
Schedule 3 Designated development
section 7
Part 1 Preliminary
1   Definitions
(1)  In this Schedule—
acid sulfate soil means acid sulfate soil, potential acid sulfate soil, sulfidic clay or sulfidic sand with soil profiles or layers, within the material to be disturbed or impacted by the development, with more than 0.1% sulfide and a net acid generation potential of more than zero.
ADG Code means the Australian Code for the Transport of Dangerous Goods by Road and Rail approved by the National Transport Commission, as in force from time to time.
coastal dune field means a system of wind-blown sand deposits extending landwards of the coastline, whether active or stable.
coastline means ocean beaches, headlands or other coastal landforms, excluding bays, estuaries or inlets.
contaminated soil means soil or sediment that contains a substance at a concentration that—
(a)  is above the concentration at which the substance is normally present in soil or sediment from the same locality, and
(b)  presents a risk of harm to human health or the environment, where harm to the environment includes a direct or indirect alteration of the environment that has the effect of degrading the environment.
development site, in relation to a development application—
(a)  means—
(i)  the whole of the land to which the application applies, or
(ii)  the part of the land that is identified in the application as the actual site of the development, and
(b)  includes, in relation to a development application for development involving alteration of a building, the actual site of the existing or approved development.
drinking water catchment means—
(a)  land in a restricted area prescribed by a controlling water authority, including—
(i)  a declared catchment area, within the meaning of the Water NSW Act 2014, and
(ii)  a catchment district proclaimed under the Local Government Act 1993, section 128, or
(b)  land within 500 metres of a groundwater source used by a local water utility or major utility, within the meaning of the Water Management Act 2000, for the purposes of town water supply.
dwelling means a room or suite of rooms occupied or used, or constructed or adapted to be capable of being occupied or used, as a separate domicile.
effluent includes treated or partially treated wastewater from—
(a)  a sewage treatment plant, or
(b)  a treatment plant associated with intensive livestock industries or aquaculture, agricultural, livestock, wood, paper or food processing industries.
environmentally sensitive area of State significance means the following—
(a)  coastal waters of the State,
(b)  land identified as coastal wetlands or littoral rainforest on the Coastal Wetlands and Littoral Rainforests Area Map, within the meaning of State Environmental Planning Policy (Resilience and Hazards) 2021, Chapter 2,
(c)  an area declared to be an aquatic reserve or marine park under the Marine Estate Management Act 2014,
(d)  a declared Ramsar wetland or declared World Heritage property within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth,
(e)  land reserved or dedicated under the Crown Land Management Act 2016 for the preservation of flora, fauna, geological formations or for other environmental protection purposes,
(f)  land declared as an area of outstanding biodiversity value under the Biodiversity Conservation Act 2016,
(g)  land identified as critical habitat under the Fisheries Management Act 1994, Part 7A,
(h)  land in a national park, state conservation area, historic site, nature reserve or wilderness area under the National Parks and Wildlife Act 1974,
(i)  land in a wilderness area under the Wilderness Act 1987,
(j)  land identified in an environmental planning instrument as being of high Aboriginal cultural significance or high biodiversity significance or as in a conservation zone,
(k)  land, places, buildings or structures listed on the State Heritage Register under the Heritage Act 1977.
floodplain means—
(a)  the floodplain level nominated in a local environmental plan, or
(b)  if no level has been nominated—the areas inundated as a result of a 1 in 100 flood event.
high watertable means the areas where the groundwater depth is less than 3 metres below the surface at its highest seasonal level.
highly permeable soil means soil profiles or layers, within the upper 2 metres of the material to be disturbed or impacted by the development, with a saturated hydraulic conductivity of more than 50 millimetres per hour.
incinerate includes any method of burning or thermally oxidising solids, liquids or gases.
relevant irrigation land means—
(a)  land in the area of operations of an irrigation corporation, within the meaning of the Water Management Act 2000, Chapter 4, Part 1, or
(b)  land shown edged heavy black on the East Cadell Map under State Environmental Planning Policy (Primary Production) 2021, Chapter 2.
residential zone means land identified in an environmental planning instrument as being predominantly for residential use, including urban, village or living area zones, but excluding rural residential zones.
saline soil means soil profiles or layers, within the upper 2 metres of soil, with an electrical conductivity of saturated extracts (ECe) value of more than 4 deciSiemens per metre (dS/m).
sludge means semi-liquid particulate matter produced as a by-product of agricultural processing of produce, aquaculture, breweries or distilleries, intensive livestock agriculture, livestock processing industries, paper pulp or pulp product industries or sewerage systems or works.
sodic soil means soil profiles or layers, within the upper 2 metres of soil, with an exchangeable sodium percentage (ESP) of more than 6%.
thermal treatment has the same meaning as in the Protection of the Environment Operations Act 1997, Schedule 1.
toxic substance means a substance classified as toxic in the ADG Code, including toxic gases (Class 2.3) and toxic and infectious substances (Class 6).
waste tyres has the same meaning as in the Protection of the Environment Operations Act 1997, Schedule 1.
(2)  In this Schedule, waste includes a matter or thing that—
(a)  is solid, gaseous or liquid or a combination of solid, gaseous or liquid, and
(b)  is discarded or is refuse from processes or uses.
Example—
Domestic, medical, industrial, mining, agricultural or commercial processes and uses.
(3)  A substance may be waste for the purposes of this Schedule even if it may be—
(a)  reprocessed, re-used or recycled, or
(b)  sold or intended for sale.
2   Measuring distances
(1)  The distance between aquaculture leases is measured as the shortest distance between—
(a)  the boundary of an existing lease area, and
(b)  the boundary of the area to which the development application applies.
(2)  The distance from a coastline is measured as the shortest distance between—
(a)  the mean high water mark, and
(b)  the boundary of the development site, excluding access roads.
(3)  The distance from a dwelling is measured as the shortest distance between—
(a)  the edge of the dwelling, excluding associated works such as access roads, and
(b)  the boundary of the development or works to which the development application applies.
(4)  The distance from an environmentally sensitive area of State significance is measured as the shortest distance between—
(a)  the boundary of the environmentally sensitive area of State significance, and
(b)  the boundary of the development site.
(5)  The distance between extractive industries or mine sites is measured as the shortest distance between—
(a)  an area of disturbance by a mine or extractive industry that has operated within the past 5 years, and
(b)  the boundary of the development site, excluding access roads.
(6)  The distance between poultry farms is measured as the shortest distance between—
(a)  the edge of facilities or works associated with an existing poultry farm, and
(b)  the facilities or works to which the development application applies, excluding access roads.
(7)  The distance from a residential zone is measured as the shortest distance between—
(a)  the boundary of the residential zone, and
(b)  the facilities or works to which the development application applies, excluding access roads.
(8)  The distance between turf farms is measured as the shortest distance between—
(a)  the edge of an area that is growing or has previously grown turf sod within the last 5 years, and
(b)  the edge of the area for growing turf sod to which the development application applies.
(9)  The distance from a waterbody is measured as the shortest distance between—
(a)  the boundary of the development site, and
(b)  the top of the high bank, if present, or, if no high bank is present—
(i)  the mean high water mark in tidal waters, or
(ii)  the mean water level in non-tidal waters.
(10)  The distance from a wetland is measured as the shortest distance between—
(a)  the boundary of the development site, and
(b)  the top of the high bank, if present, or, if no high bank is present, the edge of vegetation communities dominated by wetland species.
Part 2 Designated development
3   Agricultural produce processing facilities
(1)  Development for the purposes of an agricultural processing facility is designated development if the facility—
(a)  involves crushing, juicing, grinding, ginning, milling, separating, washing, sorting, coating, rolling, pressing, steaming, flaking, combing, homogenising and pasteurising more than 30,000 tonnes of agricultural produce per year, or
(b)  releases effluent, sludge or other waste—
(i)  in or within 100 metres of a natural waterbody or wetland, or
(ii)  in an area of high watertable, highly permeable soils or acid sulfate, sodic or saline soils.
(2)  In this section—
agricultural processing facility means a building or place at which agricultural produce is processed.
agricultural produce includes dairy products, seeds, fruit, vegetables or other plant material.
4   Aircraft facilities
(1)  Development for the purposes of an aircraft facility for seaplanes or aeroplanes is designated development if the facility—
(a)  causes a significant environmental impact or significantly increases the environmental impacts as a result of—
(i)  the number of flight movements, including taking-off or landing, or
(ii)  the maximum take-off weight of aircraft capable of using the facility, and
(b)  is located so that the whole or part of a residential zone, school or hospital is—
(i)  in an ANEF contour of 20 or greater according to the Australian Noise Exposure Forecast for the facility within the meaning of the Airports Act 1996 of the Commonwealth, or
(ii)  within 5 kilometres of the facility, if there is no Australian Noise Exposure Forecast for the facility.
(2)  Development for the purposes of an aircraft facility for helicopters is designated development if the facility—
(a)  has an intended use of more than 7 helicopter flight movements per week, including taking-off or landing, and
(b)  is located within 1,000 metres of a dwelling not associated with the facility.
(3)  Subsection (2) does not apply to a facility used exclusively for emergency aeromedical evacuation, retrieval or rescue.
(4)  Development for the purposes of an aircraft facility is designated development if the development will result in more than 20 hectares of native vegetation being disturbed by clearing.
(5)  Development for the purposes of an aircraft facility is designated development if the facility is located within 40 metres of—
(a)  an environmentally sensitive area of State significance, or
(b)  a natural waterbody.
(6)  Subsection (5)(b) does not apply to an aircraft facility for seaplanes or helicopters.
(7)  In this section—
aircraft facility means a facility for the landing, taking-off or parking of aeroplanes, seaplanes or helicopters and includes a terminal, a building for the parking, servicing or maintenance of aircraft, installations and movement areas.
5   Aquaculture
(1)  Development for the purposes of aquaculture is designated development if it involves supplemental feeding in a tank or artificial waterbody that—
(a)  is located in an area of high watertable or acid sulfate soil, or
(b)  has a total water storage area of more than 10 hectares, or
(c)  has a total water volume of more than 400 megalitres.
(2)  Development for the purposes of aquaculture is designated development if it involves supplemental feeding in a tank or artificial waterbody that—
(a)  has a total water storage area of more than 2 hectares or total water volume of more than 40 megalitres, and
(b)  is located on a floodplain or release effluent or sludge into a natural waterbody or wetland or into groundwater.
(3)  Development for the purposes of aquaculture is designated development if it involves supplemental feeding in a natural waterbody, unless the development is a trial project that—
(a)  operates for a maximum period of 2 years, and
(b)  is approved by the Secretary of Regional NSW.
(4)  Development for the purposes of aquaculture is designated development if it—
(a)  involves farming of species not indigenous to New South Wales, and
(b)  is located—
(i)  in or within 500 metres of a natural waterbody or wetland, or
(ii)  on a floodplain.
(5)  Development for the purposes of aquaculture is designated development if it—
(a)  involves the establishment of new areas for lease under the Fisheries Management Act 1994 with a total area of more than 10 hectares, and
(b)  in the consent authority’s opinion, is likely to cause significant impacts—
(i)  on the habitat value or the scenic value, or
(ii)  on the amenity of the waterbody by obstructing or restricting navigation, fishing or recreational activities, or
(iii)  because another lease is within 500 metres.
(6)  Development for the purposes of aquaculture is designated development if it involves the establishment of new areas for lease under the Fisheries Management Act 1994 with a total area of more than 50 hectares.
(7)  This section does not apply to—
(a)  aquaculture development to which State Environmental Planning Policy (Primary Production) 2021, Part 2.5, Division 2 applies, or
(b)  artificial waterbodies located on relevant irrigation land.
(8)  In this section—
aquaculture means the commercial breeding, hatching, rearing or cultivation of marine, estuarine or fresh water organisms, including aquatic plants or animals such as fin fish, crustaceans, molluscs or other aquatic invertebrates.
Note—
State Environmental Planning Policy (Primary Production) 2021, section 2.26 declares—
(a)  Classes 1 and 2 aquaculture development are not designated development, and
(b)  Class 3 aquaculture development is designated development.
6   Artificial waterbodies
(1)  Development for the purposes of an artificial waterbody is designated development if the waterbody—
(a)  has a maximum aggregate surface area of water of more than 0.5 hectares, and
(b)  is located—
(i)  in or within 40 metres of a natural waterbody or environmentally sensitive area of State significance, or
(ii)  in or within 100 metres of a wetland, or
(iii)  in an area of high watertable or acid sulfate, sodic or saline soils.
(2)  Development for the purposes of an artificial waterbody is designated development if the waterbody—
(a)  has a maximum aggregate surface area of water of more than 20 hectares, or
(b)  has a storage capacity of more than 800 megalitres, or
(c)  will have more than 30,000 cubic metres of material removed from it per year.
(3)  Subsections (1) and (2) do not apply to an artificial waterbody located on relevant irrigation land.
(4)  Development for the purposes of an artificial waterbody is designated development if the waterbody—
(a)  is located on relevant irrigation land, and
(b)  has a storage capacity of—
(i)  100 megalitres or more, if the waterbody is in an environmentally sensitive area of State significance, or
(ii)  800 megalitres or more.
(5)  This section does not apply to an artificial waterbody located on land to which State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 5 applies.
7   Battery storage facilities
Development for the purposes of a battery storage facility is designated development if the facility supplies or is capable or supplying more than 30 megawatts of electrical power.
8   Bitumen pre-mix and hot-mix facilities
(1)  Development for the purposes of a bitumen pre-mix or hot-mix facility is designated development if the facility—
(a)  has an intended production capacity of more than—
(i)  150 tonnes per day, or
(ii)  30,000 tonnes per year, or
(b)  is located within—
(i)  100 metres of a natural waterbody or wetland, or
(ii)  250 metres of a residential zone, or
(iii)  250 metres of a dwelling not associated with the development.
(2)  This section does not apply to a bitumen plant located on or adjacent to a construction site that exclusively provides material to the development being carried out on the site—
(a)  for a period of less than 12 months, or
(b)  if the environmental impacts were previously assessed in an environmental impact statement prepared for the development.
(3)  In this section—
bitumen pre-mix or hot-mix facility means a building or place at which crushed or ground rock is mixed with bituminous materials.
9   Breweries and distilleries
(1)  Development for the purposes of a brewery or distillery that produces alcohol or alcoholic products is designated development if the brewery or distillery has an intended production capacity of more than—
(a)  30 tonnes per day, or
(b)  10,000 tonnes per year.
(2)  Development for the purposes of a brewery or distillery that produces alcohol or alcoholic products is designated development if the brewery or distillery—
(a)  is located within 500 metres of a residential zone, and
(b)  is likely, in the consent authority’s opinion, to significantly affect the amenity of the neighbourhood because of odour, traffic or waste.
(3)  Development for the purposes of a brewery or distillery that produces alcohol or alcoholic products is designated development if the brewery or distillery releases effluent or sludge—
(a)  in or within 100 metres of a natural waterbody or wetland, or
(b)  in an area of high watertable, highly permeable soils or acid sulfate, sodic or saline soils.
(4)  Subsection (2) does not apply to artisan food and drink industries.
10   Cement works
(1)  Development for the purposes of cement works is designated development if the works—
(a)  have an intended processing capacity of more than—
(i)  150 tonnes per day, or
(ii)  30,000 tonnes per year, and
(b)  burn, sinter or heat until molten calcareous, argillaceous or other materials or grind clinker or compound cement.
(2)  Development for the purposes of cement works is designated development if the works have an intended combined handling capacity of bulk cement, fly ash, powdered lime or other dry cement product of more than—
(a)  150 tonnes per day, or
(b)  30,000 tonnes per year.
(3)  Development for the purposes of cement works is designated development if the works are located within—
(a)  100 metres of a natural waterbody or wetland, or
(b)  250 metres of a residential zone, or
(c)  250 metres of a dwelling not associated with the development.
(4)  In this section—
cement works means works that manufacture portland or other special purpose cement or quicklime.
11   Ceramic and glass manufacturing
(1)  Development for the purposes of a ceramic or glass manufacturing facility is designated development if the facility—
(a)  has an intended production capacity of more than 150 tonnes per day or 30,000 tonnes per year, or
(b)  is located within—
(i)  40 metres of a natural waterbody, or
(ii)  100 metres of a wetland, or
(iii)  250 metres of a residential zone, or
(iv)  250 metres of a dwelling not associated with the development.
(2)  In this section—
ceramic or glass manufacturing facility means a building or place at which bricks, tiles, pipes, pottery, ceramics, refractories or glass are manufactured using a firing process.
12   Chemical industrial facilities and works
(1)  Development for the purposes of the following chemical industrial facilities or works is designated development—
(a)  an agriculture fertiliser facility or works that manufactures inorganic plant fertilisers in quantities of more than 20,000 tonnes per year,
(b)  a facility that—
(i)  manufactures or reprocesses batteries, and
(ii)  uses or recovers more than 30 tonnes of metal per year,
(c)  a carbon black plant that manufactures more than 5,000 tonnes of carbon black per year,
(d)  an explosive and pyrotechnic facility that manufactures explosives, including for industrial purposes, extractive industries and mining uses, ammunition, fireworks or fuel propellents,
(e)  a facility that manufactures any of the following in quantities of more than 5,000 tonnes per year—
(i)  paints or paint solvents,
(ii)  pigments, dyes or printing inks,
(iii)  industrial polishes,
(iv)  adhesives,
(v)  sealants,
(f)  a petrochemical facility that manufactures petrochemicals or petrochemical products in quantities of more than 2,000 tonnes per year,
(g)  a facility for pesticide, fungicide, herbicide, rodenticide, nematocide, miticide, fumigant or related products that—
(i)  use or produce toxic substances, or
(ii)  manufactures products in quantities of more than 2,000 tonnes per year, excluding simple blending,
(h)  a facility for pharmaceutical or veterinary products that uses or produces toxic substances in quantities of more than 1 tonne per year,
(i)  a plastics facility that—
(i)  manufactures more than 2,000 tonnes per year of synthetic plastic resins, or
(ii)  reprocesses more than 5,000 tonnes per year of plastics other than by a simple melting and reforming process,
(j)  a rubber facility that—
(i)  manufactures more than 2,000 tonnes per year of synthetic rubber, or
(ii)  manufactures, retreads, recycles or processes, otherwise than by thermal treatment, more than 5,000 tonnes per year of rubber products, rubber tyres or waste tyres, or
(iii)  dumps or stores, otherwise than in a building, more than 10 tonnes of waste tyres,
(k)  a facility that manufactures soap or detergent, including domestic, institutional or industrial soap or detergent that produces—
(i)  more than 100 tonnes per year of materials containing toxic substances, or
(ii)  more than 5,000 tonnes per year of products, excluding simple blending.
(2)  Development for the purposes of a chemical industrial facility or works not referred to in subsection (1) is designated development if the facility or works—
(a)  manufacture, blend, recover or use toxic substances or substances classified as explosive or radioactive in the ADG Code, or
(b)  manufacture or use more than 1,000 tonnes per year of substances classified in the ADG Code, but not as toxic, explosive or radioactive, or
(c)  crush, grind or mill more than 10,000 tonnes per year of chemical substances.
(3)  Development for the purposes of a chemical industrial facility or works is designated development if the facility or works are located—
(a)  within 40 metres of a natural waterbody, or
(b)  within 100 metres of a wetland, or
(c)  in an area of high watertable or highly permeable soil, or
(d)  in a drinking water catchment, or
(e)  on a floodplain.
(4)  This section does not apply to—
(a)  a chemical industrial facility or works where a chemical specified in the Work Health and Safety Regulation 2017, Schedule 11 is stored in a quantity below the placard quantity specified in that Schedule for the chemical, or
(b)  development specifically referred to elsewhere in this Schedule.
(5)  In this section—
chemical industrial facility or works means a building or place at which the following are carried out—
(a)  the commercial production of chemical substances,
(b)  research into chemical substances.
13   Chemical storage facilities
(1)  Development for the purposes of a chemical storage facility is designated development if the facility—
(a)  stores or packages chemical substances in containers, bulk storage facilities, stockpiles or dumps, and
(b)  has a total storage capacity of more than—
(i)  20 tonnes of pressurised gas, or
(ii)  200 tonnes of liquefied gases, or
(iii)  2,000 tonnes of chemical substances.
(2)  Development for the purposes of a chemical storage facility is designated development if the facility is located—
(a)  within 40 metres of a natural waterbody, or
(b)  within 100 metres of a wetland, or
(c)  in an area of high watertable or highly permeable soil, or
(d)  in a drinking water catchment, or
(e)  on a floodplain.
14   Coal mines
(1)  Development for the purposes of an underground coal mine that mines, processes or handles coal is designated development.
(2)  Development for the purposes of an open cut mine that mines, processes or handles coal is designated development if the mine—
(a)  produces or processes more than 500 tonnes per day of coal or carbonaceous material, or
(b)  disturbs or will disturb a total surface area of more than 4 hectares of land by—
(i)  clearing or excavating, or
(ii)  constructing dams, ponds, drains, roads, railways or conveyors, or
(iii)  storing or depositing overburden, coal or carbonaceous material or tailings.
(3)  Development for the purposes of a coal mine that mines, processes or handles coal is designated development if the mine is located—
(a)  in or within 40 metres of—
(i)  a natural waterbody, or
(ii)  a drinking water catchment, or
(iii)  an environmentally sensitive area of State significance, or
(b)  in or within 100 metres of a wetland, or
(c)  within 200 metres of a coastline, or
(d)  on land that slopes at more than 18 degrees to the horizontal, or
(e)  if the mine involves blasting, within—
(i)  1,000 metres of a residential zone, or
(ii)  500 metres of a dwelling not associated with the development.
15   Coal works
(1)  Development for the purposes of coal works is designated development if the coal works—
(a)  handle more than 500 tonnes per day of coal or carbonaceous material, or
(b)  store more than 5,000 tonnes of coal, except if the storage is within a closed container or a closed building, or
(c)  store or deposit more than 5,000 tonnes of carbonaceous reject material, or
(d)  are located in or within 40 metres of—
(i)  a natural waterbody, or
(ii)  a drinking water catchment, or
(iii)  an environmentally sensitive area of State significance, or
(e)  are located in or within 100 metres of a wetland.
(2)  In this section—
coal works means works that store and handle coal or carbonaceous material at an existing coal mine or on a separate coal industry site, including a coal loader, conveyor, washery or reject dump.
16   Composting facilities or works
(1)  Development for the purposes of a composting facility or works is designated development if the facility or works process more than 5,000 tonnes per year of organics.
(2)  Development for the purposes of a composting facility or works is designated development if the facility or works are located—
(a)  in or within 100 metres of—
(i)  a natural waterbody, or
(ii)  a wetland, or
(iii)  a coastal dune field, or
(iv)  an environmentally sensitive area of State significance, or
(b)  in an area of high watertable, highly permeable soils, acid sulfate, sodic or saline soils, or
(c)  in a drinking water catchment, or
(d)  in a catchment of an estuary where the entrance to the sea is intermittently open, or
(e)  on a floodplain, or
(f)  within 500 metres of a residential zone or 250 metres of a dwelling not associated with the development and, in the consent authority’s opinion, considering topography and local meteorological conditions, are likely to significantly affect the amenity of the neighbourhood because of noise, visual impacts, vermin, traffic or air pollution, including odour, smoke, fumes or dust.
(3)  In this section—
composting facility or works means a facility or works involving the controlled aerobic or anaerobic biological conversion of organics into humus-like products by—
(a)  methods such as bioconversion, biodigestion or vermiculture, or
(b)  reducing the size of organics by shredding, chipping, mulching or grinding.
organics has the same meaning as in the Protection of the Environment Operations Act 1997, Schedule 1.
17   Concrete works
(1)  Development for the purposes of concrete works is designated development if the works have an intended production capacity of more than—
(a)  150 tonnes per day, or
(b)  30,000 tonnes per year.
(2)  Development for the purposes of concrete works is designated development if the works—
(a)  have an intended production capacity of more than 500 tonnes per year, and
(b)  are located within—
(i)  100 metres of a natural waterbody or wetland, or
(ii)  250 metres of a residential zone, or
(iii)  250 metres of a dwelling not associated with the development.
(3)  This section does not apply to concrete works located on or adjacent to a construction site exclusively providing material to the development carried out on the site—
(a)  for a period of less than 12 months, or
(b)  if the environmental impacts were previously assessed in an environmental impact statement prepared for the development.
(4)  In this section—
concrete works means works that produce pre-mixed concrete or concrete products.
18   Container reconditioning works
(1)  Development for the purposes of container reconditioning works is designated development if the works handle—
(a)  containers, including metal, plastic or glass drums, bottles, cylinders or intermediate bulk containers, previously used for the transport or storage of—
(i)  toxic substances, or
(ii)  substances classified as radioactive in the ADG Code, or
(b)  more than 100 metal drums per day.
(2)  Subsection (1)(b) does not apply if the works, including associated drum storage, are wholly contained within a building.
(3)  In this section—
container reconditioning works means works at which containers and metal drums are—
(a)  received from off site, and
(b)  reconditioned, recovered, treated or stored.
19   Contaminated groundwater treatment works
Development for the purposes of contaminated groundwater treatment works is designated development if the works have the capacity to treat more than 100 megalitres per year of contaminated water.
20   Contaminated soil treatment works
(1)  Development for the purposes of contaminated soil treatment works is designated development if—
(a)  the contaminated soil does not originate from the site on which the development is located, and
(b)  the works are located—
(i)  within 100 metres of a natural waterbody or wetland, or
(ii)  in an area of high watertable or highly permeable soils, or
(iii)  in a drinking water catchment, or
(iv)  on land that slopes at more than 6 degrees to the horizontal, or
(v)  on a floodplain, or
(vi)  within 100 metres of a dwelling not associated with the development.
(2)  Development for the purposes of contaminated soil treatment works is designated development if the works treat more than 1,000 cubic metres per year of contaminated soil that does not originate from the site on which the development is located.
(3)  Development for the purposes of contaminated soil treatment works is designated development if—
(a)  the contaminated soil originates exclusively from the site on which the development is located, and
(b)  the works—
(i)  incinerate more than 1,000 cubic metres per year of contaminated soil, or
(ii)  treat, otherwise than by incineration, and store more than 30,000 cubic metres of contaminated soil, or
(iii)  disturb more than an aggregate area of 3 hectares of contaminated soil.
(4)  In this section—
contaminated soil treatment works means works for on-site or off-site treatment of contaminated soil and includes works that incinerate or store contaminated soil but does not include works that excavate contaminated soil for treatment at another site.
21   Crushing, grinding or separating works
(1)  Development for the purposes of crushing, grinding or separating works is designated development if the works have the capacity to process more than—
(a)  150 tonnes per day, or
(b)  30,000 tonnes per year.
(2)  Development for the purposes of crushing, grinding or separating works is designated development if the works are located within—
(a)  40 metres of a natural waterbody, or
(b)  100 metres of a wetland, or
(c)  250 metres of a residential zone, or
(d)  250 metres of a dwelling not associated with the development.
(3)  This section does not apply to development specifically referred to elsewhere in this Schedule.
(4)  In this section—
crushing, grinding or separating works means works that process the following materials by crushing, grinding or separating into different sizes—
(a)  materials such as sand, gravel, rock or minerals,
(b)  materials for recycling or reuse, such as slag, road base, concrete, bricks, tiles, bituminous material, metal or timber.
22   Dairies
Development for the purposes of a dairy is designated development if the dairy accommodates more than 800 head of cattle for the purposes of milk production.
23   Desalination plants
(1)  Development for the purposes of a desalination plant is designated development if the plant has an intended processing capacity of more than 2,500 persons equivalent capacity or 750 kilolitres per day.
(2)  Development for the purposes of a desalination plant is designated development if the plant—
(a)  has an intended processing capacity of more than 20 persons equivalent capacity or 6 kilolitres per day, and
(b)  is located—
(i)  on a floodplain, or
(ii)  in a coastal dune field, or
(iii)  in a drinking water catchment, or
(iv)  within 100 metres of a natural waterbody or wetland, or
(v)  within 250 metres of a dwelling not associated with the development.
24   Electricity generating stations
(1)  Development for the purposes of an electricity generating station is designated development if the station supplies or is capable of supplying—
(a)  electrical power where—
(i)  the associated water storage facilities inundate land identified as wilderness under the Wilderness Act 1987, or
(ii)  the temperature of the water released from the generating station into a natural waterbody is more than 2 degrees centigrade from the ambient temperature of the receiving water, or
(b)  more than 1 megawatt of hydroelectric power requiring a new dam, weir or inter-valley transfer of water, or
(c)  more than 30 megawatts of electrical power from other energy sources, including coal, gas, wind, bio-material, hydroelectric stations on existing dams or co-generation, but excluding solar powered generators.
(2)  Development for the purposes of an electricity generating station is designated development if the station supplies or is capable of supplying more than 30 megawatts of electrical power from a thermal solar powered generator.
(3)  Development for the purposes of an electricity generating station is designated development if the station—
(a)  supplies or is capable of supplying more than 30 megawatts of electrical power from a photovoltaic solar powered generator, and
(b)  is located on a floodplain.
(4)  This section does not apply to a power generation facility used exclusively for stand-by power purposes for less than 4 hours per week averaged over a continuous 3-month period.
(5)  In this section—
electricity generating station includes associated water storage, ash or waste management facilities.
25   Energy recovery facilities
(1)  Development for the purposes of an energy recovery facility is designated development if the facility—
(a)  processes more than 200 tonnes per year of waste, other than hazardous waste, liquid waste, restricted solid waste or special waste, or
(b)  has on site at any time more than 200 kilograms of hazardous waste, liquid waste, restricted solid waste or special waste.
(2)  Subsection (1) does not apply to—
(a)  the processing of contaminated soil, or
(b)  container reconditioning, or
(c)  the recovery of gases classified in Class 2 under the ADG Code.
(3)  For the purposes of this section, 1 litre of waste is taken to weigh 1 kilogram.
(4)  In this section—
energy recovery facility means a building or place that—
(a)  receives waste from on site or off site, and
(b)  recovers energy from waste.
hazardous waste, liquid waste, restricted solid waste and special waste have the same meaning as in the Protection of the Environment Operations Act 1997, Schedule 1.
26   Extractive industries
(1)  Development for the purposes of an extractive industry facility is designated development if the facility obtains or processes for sale, or reuse, more than 30,000 cubic metres of extractive material per year.
(2)  Development for the purposes of an extractive industry facility is designated development if the facility disturbs or will disturb a total surface area of more than 2 hectares of land by—
(a)  clearing or excavating, or
(b)  constructing dams, ponds, drains, roads or conveyors, or
(c)  storing or depositing overburden, extractive material or tailings.
(3)  Development for the purposes of an extractive industry facility is designated development if the facility is located—
(a)  in or within 40 metres of a natural waterbody or environmentally sensitive area of State significance, or
(b)  in or within 100 metres of a wetland, or
(c)  within 200 metres of a coastline, or
(d)  in an area of contaminated soil or acid sulfate soil, or
(e)  on land that slopes at more than 18 degrees to the horizontal, or
(f)  if the facility involves blasting—within 1,000 metres of a residential zone or within 500 metres of a dwelling not associated with the development, or
(g)  within 500 metres of the site of another extractive industry facility that has operated during the last 5 years.
(4)  This section does not apply to the following—
(a)  an extractive industry facility on land to which State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 5 applies,
(b)  an extractive industry facility on land in the Western Division, within the meaning of the Crown Land Management Act 2016,
(c)  maintenance dredging involving the removal of less than 1,000 cubic metres of alluvial material from oyster leases, sediment ponds or dams, artificial wetland or deltas formed at stormwater outlets, drains or the junction of creeks with rivers, if—
(i)  the extracted material does not include contaminated soil or acid sulfate soil, and
(ii)  dredging operations do not remove any seagrass or native vegetation, and
(iii)  there has been no other dredging within 500 metres during the past 5 years,
(d)  an extractive industry facility that—
(i)  is operated in accordance with a plan of management that complies with subsection (5), and
(ii)  involves the removal of less than 1,000 cubic metres of extractive material from a potential extraction site specified in the plan of management,
(e)  the excavation of contaminated soil for treatment at another site,
(f)  an artificial waterbody, contaminated soil treatment works, turf farm or waste management facility or works, specifically referred to elsewhere in this Schedule,
(g)  an artificial waterbody located on relevant irrigation land,
(h)  maintenance dredging of alluvial material from oyster leases and adjacent areas in Wallis Lake, if the dredging is undertaken in accordance with the document entitled Protocol for Wallis Lake Oyster Lease Maintenance Dredging approved by the Planning Secretary and published in the Gazette, as amended by the Planning Secretary from time to time by publication of an amended Protocol in the Gazette.
(5)  A plan of management must be—
(a)  prepared in accordance with guidelines approved by the Planning Secretary, and
(b)  approved by a public authority, and
(c)  adopted by the consent authority, and
(d)  reviewed by the consent authority every 5 years.
(6)  In this section—
extractive industry facility means a building or place at which—
(a)  extractive materials are obtained by methods including excavating, dredging, tunnelling or quarrying, or
(b)  extractive materials are stored, stockpiled or processed by methods including washing, crushing, sawing or separating.
plan of management means a plan for a river, estuary, land or water that considers the cumulative impacts, bank and channel stability, flooding, ecology and hydrology of the area to which the plan applies.
27   Feedlots
(1)  Development for the purposes of a feedlot is designated development if the feedlot accommodates in a confinement area, and wholly or substantially rears or fattens on prepared or manufactured feed, more than—
(a)  1,000 head of cattle, or
(b)  4,000 sheep, or
(c)  5,000 animals of any kind, excluding poultry.
(2)  This section does not apply to a facility for drought or similar emergency relief.
28   Geosequestration facilities
(1)  Development for the purposes of a facility for the injection and geological storage of greenhouse gases is designated development.
(2)  Development for the purposes of drilling or operating a greenhouse gas geological exploration well is designated development.
(3)  Subsection (2) does not include apply to a stratigraphic borehole or monitoring well.
29   Horse facilities
(1)  Development for the purposes of a facility or confined area operated on a commercial basis for the keeping or breeding of horses is designated development if the facility or area accommodates more than 400 horses.
(2)  This section does not apply to a facility for drought or similar emergency relief.
30   Limestone mines and works
(1)  Development for the purposes of limestone mines or works is designated development if the works disturb a total surface area of more than 2 hectares of land by—
(a)  clearing or excavating, or
(b)  constructing dams, ponds, drains, roads, railways or conveyors, or
(c)  storing or depositing overburden, limestone, limestone products or tailings.
(2)  Development for the purposes of a mine that mines or processes limestone is designated development if the mine is located—
(a)  in or within 40 metres of—
(i)  a natural waterbody, or
(ii)  a drinking water catchment, or
(iii)  an environmentally sensitive area of State significance, or
(b)  in or within 100 metres of a wetland, or
(c)  if the mine involves blasting, within—
(i)  1,000 metres of a residential zone, or
(ii)  500 metres of a dwelling not associated with the development, or
(d)  within 500 metres of another mining site that has operated within the past 5 years.
(3)  Development for the purposes of limestone works is designated development if the works—
(a)  are not associated with a mine, and
(b)  crush, screen, burn or hydrate more than 150 tonnes per day, or 30,000 tonnes per year, of material.
(4)  Development for the purposes of limestone works is designated development if the works—
(a)  are not associated with a mine, and
(b)  are located within—
(i)  100 metres of a natural waterbody, or
(ii)  100 metres of a wetland, or
(iii)  250 metres of a residential zone, or
(iv)  250 metres of a dwelling not associated with the development.
31   Livestock processing industry
(1)  Development for the purposes of livestock processing industry is designated development if it involves the slaughter of animals, including poultry, with an intended processing capacity of more than 750 tonnes per year of live weight.
(2)  Development for the purposes of livestock processing industry that involves the manufacture of products derived from the slaughter of animals is designated development.
(3)  Subsection (2) includes the following—
(a)  a tannery or fellmongery with an intended production capacity of more than 2 tonnes per year of products,
(b)  a rendering or fat extraction plant with an intended production capacity of more than 200 tonnes per year of tallow, fat or their derivatives or proteinaceous matter,
(c)  a plant with an intended production capacity of more than 5,000 tonnes per year of products, including hides, adhesives, pet feed, gelatine, fertiliser or meat products.
(4)  Development for the purposes of livestock processing industry is designated development if it involves—
(a)  the scouring, topping, carbonising or other processing of greasy wool or fleeces, and
(b)  an intended production capacity of more than 200 tonnes per year.
(5)  Development for the purposes of livestock processing industry is designated development if located—
(a)  within 100 metres of a natural waterbody or wetland, or
(b)  in an area of high watertable or highly permeable soils or acid sulfate, sodic or saline soils, or
(c)  on land that slopes at more than 6 degrees to the horizontal, or
(d)  in a drinking water catchment, or
(e)  on a floodplain, or
(f)  within 5 kilometres of a residential zone and, in the consent authority’s opinion, considering topography and local meteorological conditions, are likely to significantly affect the amenity of the neighbourhood because of noise, odour, dust, lights, traffic or waste.
32   Marinas and related land and water shoreline facilities
(1)  Development for the purposes of a marina or related facility is designated development if the marina or facility has an intended capacity of—
(a)  15 or more vessels with a length of 20 metres or more, or
(b)  80 or more vessels of any length.
(2)  Development for the purposes of a marina or related facility is designated development if —
(a)  the marina or facility has an intended capacity of 30 or more vessels of any length, and
(b)  the marina or facility—
(i)  is located in non-tidal waters or within 100 metres of a wetland or aquatic reserve, or
(ii)  requires the construction of a groyne or annual maintenance dredging, or
(iii)  has a ratio of car park spaces to vessels of less than 0.5:1.
(3)  Development for the purposes of a boat repair or maintenance facility is designated development if the facility has an intended capacity of—
(a)  1 or more vessels with a length of 25 metres or more, or
(b)  5 or more vessels of any length at any one time.
(4)  In this section—
boat repair or maintenance facility means a facility at which vessels are repaired or maintained out of the water and includes slipways, hoists or other facilities.
related facility means a land or water shoreline facility that moors, parks or stores vessels, excluding rowing boats, dinghies or other small craft—
(a)  at fixed or floating berths or freestanding moorings, or
(b)  alongside jetties or pontoons, or
(c)  within dry storage stacks or on cradles on hardstand areas.
33   Mineral processing or metallurgical works
(1)  Development for the purposes of mineral processing or metallurgical works is designated development if the works process into ore concentrates more than 150 tonnes per day of material.
(2)  Development for the purposes of mineral processing or metallurgical works is designated development if the works smelt, process, coat, reprocess or recover more than 10,000 tonnes per year of ferrous or non-ferrous metals, alloys or ore concentrates.
(3)  Development for the purposes of mineral processing or metallurgical works is designated development if the works—
(a)  crush, grind, shred, sort or store more than 150 tonnes per day, or 30,000 tonnes per year, of scrap metal, and
(b)  are not wholly contained within a building.
(4)  Development for the purposes of mineral processing or metallurgical works is designated development if the works—
(a)  crush, grind, shred, sort or store more than 50,000 tonnes per year of scrap metal, and
(b)  are wholly contained within a building.
(5)  Development for the purposes of mineral processing or metallurgical works is designated development if the works are located—
(a)  within 40 metres of a natural waterbody, or
(b)  within 100 metres of a wetland, or
(c)  in an area of high watertable, or
(d)  within 500 metres of a residential zone and, in the consent authority’s opinion, considering topography and local meteorological conditions, are likely to significantly affect the amenity of the neighbourhood because of noise, vibration, odour, fumes, smoke, soot, dust, traffic or waste, or
(e)  so they are likely, in the consent authority’s opinion, considering topography and local meteorological conditions, to significantly affect the environment because of the use or production of toxic substances.
(6)  In this section—
mineral processing or metallurgical works means works at which any of the following is carried out—
(a)  the commercial production or extraction of ores using methods including chemical, electrical, magnetic, gravity or physico-chemical methods,
(b)  the commercial refinement, processing or reprocessing of metals involving smelting, casting, metal coating or metal products recovery.
34   Mines
(1)  Development for the purposes of a mine is designated development if the mine—
(a)  disturbs or will disturb a total surface area of more than 4 hectares of land, by
(i)  clearing or excavating, or
(ii)  constructing dams, ponds, drains, roads, railways or conveyors, or
(iii)  storing or depositing overburden, ore, ore products or tailings, and
(b)  is associated with a mining lease or mineral claim under the Mining Act 1992.
(2)  Development for the purposes of a mine is designated development if the mine is located—
(a)  in or within 40 metres of a natural waterbody, drinking water catchment or environmentally sensitive area of State significance, or
(b)  in or within 100 metres of a wetland, or
(c)  within 200 metres of a coastline, or
(d)  if the mine involves blasting—within 1,000 metres of a residential zone or within 500 metres of a dwelling not associated with the development, or
(e)  within 500 metres of another mining site that has operated during the past 5 years, or
(f)  so the mine is likely, in the consent authority’s opinion, considering topography and local meteorological conditions, to significantly affect the environment because of the use or production of toxic substances.
(3)  In this section—
mine means a mine that mines, processes or handles minerals.
mineral has the same meaning as in the Mining Act 1992, but does not include coal or limestone.
35   Oil and petroleum waste storage works
(1)  Development for the purposes of oil and petroleum waste storage works is designated development.
(2)  In this section—
oil and petroleum waste storage works means works that involve an activity requiring a licence under the Protection of the Environment Operations Act 1997, Schedule 1, clause 42.
36   Paper pulp industrial facilities
(1)  Development for the purposes of a paper pulp industrial facility is designated development if the facility has an intended production capacity of more than—
(a)  30,000 tonnes per year, or
(b)  70,000 tonnes per year if—
(i)  at least 90% of the raw material is recycled material, and
(ii)  no bleaching or de-inking is undertaken.
(2)  Development for the purposes of a paper pulp industrial facility is designated development if the facility releases effluent or sludge—
(a)  in or within 100 metres of a natural waterbody or wetland, or
(b)  in an area of high watertable or highly permeable soils, or
(c)  in a drinking water catchment.
(3)  In this section—
paper pulp industrial facility means a building or place at which paper pulp or pulp products industries are carried out.
37   Petroleum works
(1)  Development for the purposes of petroleum works is designated development if the works involve an activity requiring a licence under the Protection of the Environment Operations Act 1997, Schedule 1, clause 31A.
(2)  Development for the purposes of petroleum works is designated development if the works involve receiving waste oil from off site or processing waste oil, to the extent that the activity requires a licence under the Protection of the Environment Operations Act 1997, Schedule 1, clause 34 or 41.
(3)  Development for the purposes of petroleum works is designated development if the works are located—
(a)  on land in the area of a production licence under the Petroleum (Offshore) Act 1982, or
(b)  on land included in a production lease under the Petroleum (Onshore) Act 1991, or
(c)  within 40 metres of a natural waterbody, or
(d)  within 100 metres of a wetland, or
(e)  in an area of high watertable or highly permeable soils, or
(f)  in a drinking water catchment, or
(g)  on a floodplain.
38   Pig farms
(1)  Development for the purposes of a pig farm is designated development if the pig farm accommodates more than 2,000 pigs or 200 breeding sows.
(2)  Development for the purposes of a pig farm is designated development if the pig farm