State Environmental Planning Policy (Transport and Infrastructure) 2021

Chapter 1 Preliminary

1.1 Name of Policy

This Policy is State Environmental Planning Policy (Transport and Infrastructure) 2021.

1.2 Commencement

This Policy commences on 1 March 2022 and is required to be published on the NSW legislation website.

1.3 Definitions

In this Policy—

the Act means the Environmental Planning and Assessment Act 1979.

Note—

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Policy.

1.4 Transferred provisions

The Interpretation Act 1987, section 30A is taken to apply to the provisions transferred to this Policy on the commencement of this Policy in the same way as it applies to provisions transferred from a statutory rule to another statutory rule.

Note—

The Interpretation Act 1987, section 30A provides—

(a)  the transfer of a provision does not affect the operation or meaning of the provision, and

(b)  a transferred provision is to be construed as if it had not been transferred.

Chapter 2 Infrastructure

Part 2.1 Preliminary

Note—

Nothing in this Chapter (except section 2.8) affects any requirement under another Act to obtain an approval, licence or permit for or concurrence to any development of a kind specified in Part 2.3. Examples of Acts imposing such requirements include the Fisheries Management Act 1994, Forestry Act 2012, Heritage Act 1977, Mine Subsidence Compensation Act 1961, Mining Act 1992, National Parks and Wildlife Act 1974, Protection of the Environment Operations Act 1997, Roads Act 1993, Rural Fires Act 1997 and Water Management Act 2000.

2.1 Aim of Chapter

The aim of this Chapter is to facilitate the effective delivery of infrastructure across the State by—

(a)  improving regulatory certainty and efficiency through a consistent planning regime for infrastructure and the provision of services, and

(b)  providing greater flexibility in the location of infrastructure and service facilities, and

(c)  allowing for the efficient development, redevelopment or disposal of surplus government owned land, and

(d)  identifying the environmental assessment category into which different types of infrastructure and services development fall (including identifying certain development of minimal environmental impact as exempt development), and

(e)  identifying matters to be considered in the assessment of development adjacent to particular types of infrastructure development, and

(f)  providing for consultation with relevant public authorities about certain development during the assessment process or prior to development commencing, and

(g)  providing opportunities for infrastructure to demonstrate good design outcomes.

2.2 Land to which Chapter applies

Except as otherwise provided by this Chapter, this Chapter applies to the State.

2.3 Interpretation—general

(1)  A word or expression used in this Chapter has the same meaning as it has in the Standard Instrument unless it is otherwise defined in this Chapter.

(2)  In this Chapter—

associated public transport facilities for a railway station, public ferry wharf or road means such of the following as are integrated or associated with the station, wharf or road—

(a)  car parks intended for use by commuters,

(b)  public transport interchanges (being locations intended for use by commuters to transfer between and to different kinds of public transport such as buses, trains and ferries),

(c)  bus bays (being locations that are set aside for buses to stop or park for the purpose of picking up and setting down passengers),

(d)  bus layovers.

Blue Book means Managing Urban Stormwater: Soils & Construction (4th edition, Landcom, 2004), commonly referred to as the “Blue Book” and as in force at the commencement of State Environmental Planning Policy (Infrastructure) Amendment 2018.

bus layover means a location set aside for buses to park during periods between bus journeys.

Note—

Bus layovers may (but need not) have amenities for bus drivers to use during periods between bus journeys.

capital investment value of development has the same meaning as in the Environmental Planning and Assessment Regulation 2000.

consent—

(a)  when used in relation to the carrying out of development without consent, means development consent and any other type of consent, licence, permission, approval or authorisation that is required by or under an environmental planning instrument, and

(b)  when used in any other context, means development consent.

Note—

As a result of paragraph (a) of the definition of consent, development that this Chapter provides may be carried out without development consent may also be carried out without any other consent, licence, permission, approval or authorisation that would otherwise be required by another environmental planning instrument (such as an approval to remove a tree that is subject to a tree preservation order).

Development that does not require consent under Part 4 of the Act and is not a project to which Part 3A of the Act applies or exempt development will be subject to the environmental assessment and approval requirements of Part 5 of the Act.

consent authority has the same meaning as it has in the Act.

emergency works means works carried out in response to—

(a)  a sudden natural event, including a storm, flood, tree fall, bush fire, land slip or coastal inundation, or

(b)  accident, equipment failure or structural collapse, or

(c)  damage caused by vandalism, arson or a pollution incident,

provided the works involve no greater disturbance to soil or vegetation than necessary and are carried out in accordance with all applicable requirements of the Blue Book.

environmental management works means—

(a)  works for the purpose of avoiding, reducing, minimising or managing the environmental effects of development (including effects on water, soil, air, biodiversity, traffic or amenity), and

(b)  environmental protection works.

heritage conservation area means land identified as a heritage conservation area or place of Aboriginal significance (or by a similar description) in an environmental planning instrument.

heritage significance means historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance.

infrastructure facility means development that is the subject of development controls under Part 2.3.

Lighting for Roads and Public Spaces Standard means the following Australian and New Zealand Standards—

(a)  AS/NZS 1158.0:2005, Lighting for roads and public spaces, Part 0: Introduction,

(b)  AS/NZS 1158.1.1:2005, Lighting for roads and public spaces, Part 1.1: Vehicular traffic (Category V) lighting—Performance and design requirements,

(c)  AS/NZS 1158.1.2:2010, Lighting for roads and public spaces, Part 1.2: Vehicular traffic (Category V) lighting—Guide to design, installation, operation and maintenance,

(d)  AS/NZS 1158.2:2005, Lighting for roads and public spaces, Part 2: Computer procedures for the calculation of light technical parameters for Category V and Category P lighting,

(e)  AS/NZS 1158.3.1:2005, Lighting for roads and public spaces, Part 3.1: Pedestrian area (Category P) lighting—Performance and design requirements,

(f)  AS/NZS 1158.4:2009, Lighting for roads and public spaces, Part 4: Lighting of pedestrian crossings,

(g)  AS/NZS 1158.5:2007, Lighting for roads and public spaces, Part 5: Tunnels and underpasses,

(h)  AS/NZS 1158.6:2010, Lighting for roads and public spaces, Part 6: Luminaires.

local heritage item means—

(a)  a place, building, work, relic, tree, archaeological site or Aboriginal object that is identified as a heritage item (or by a similar description) in a local or regional environmental plan, or

(b)  an item of local heritage significance, as defined by the Heritage Act 1977, that is the subject of an interim heritage order in force under that Act or is listed as an item of local heritage significance on the State Heritage Inventory under that Act.

maintenance includes repair.

primary road means the road to which the front of a dwelling house, or a main building, on a lot faces or is proposed to face.

public authority—

(a)  has the same meaning as it has in the Act, and

(b)  in respect of development connected with rail corridors or railway infrastructure facilities, includes the Australian Rail Track Corporation Limited (ACN 081 455 754).

railway station includes any station for a metro (within the meaning of the Transport Administration Act 1988).

site compatibility certificate means a certificate issued under section 2.19(5).

Standard Instrument means the standard local environmental planning instrument prescribed by the Standard Instrument (Local Environmental Plans) Order 2006 made under the Act.

State heritage item means an item of State heritage significance, as defined by the Heritage Act 1977, that is the subject of an interim heritage order in force under that Act or listed on the State Heritage Register under that Act.

State land means—

(a)  Crown land within the meaning of the Crown Land Management Act 2016, or

(b)  any other land of the Crown or vested in a Minister on behalf of the Crown, or

(c)  land owned by a public authority other than a council.

telecommunications facility—see section 2.140.

the Act means the Environmental Planning and Assessment Act 1979.

Transport for NSW or TfNSW means Transport for NSW constituted under the Transport Administration Act 1988.

waste has the same meaning as in Schedule 3 to the Environmental Planning and Assessment Regulation 2000.

written notice includes notice by electronic mail or facsimile.

Note—

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Chapter.

(3)  If this Chapter provides that development for a particular purpose that may be carried out without consent includes construction works, the following works or activities are (subject to and without limiting that provision) taken to be construction works if they are carried out for that purpose—

(a)  accessways,

(b)  temporary construction yards,

(c)  temporary lay-down areas for materials or equipment,

(d)  temporary structures,

(e)  investigations (including geotechnical and other testing, surveying and the placement of survey marks, and sampling),

(f)  clearing of vegetation (including any necessary cutting, pruning, ringbarking or removal of trees) and associated rectification and landscaping,

(g)  demolition,

(h)  relocation or removal of infrastructure,

(i)  extraction of extractive materials at the construction site solely for the purpose of the construction.

(4)  If this Chapter provides that development for a particular purpose that may be carried out without consent includes routine maintenance works, the following works or activities are (subject to and without limiting that provision) taken to be routine maintenance works if they are carried out for that purpose—

(a)  routine repairs to or replacement of equipment or assets,

(b)  temporary construction yards,

(c)  clearing of vegetation (including any necessary cutting, pruning, ringbarking or removal of trees) and associated rectification and landscaping.

(5)  Notes included in this Chapter are provided for guidance and do not form part of this Chapter.

2.4 Interpretation—references to equivalent land use zones

(1)  A reference in this Chapter to a land use zone that is equivalent to a named land use zone is a reference to a land use zone under an environmental planning instrument that is not made as provided by section 3.20(2) of the Act—

(a)  that the Secretary has determined under clause 1.6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 is a land use zone in which equivalent land uses are permitted to those permitted in that named land use zone, or

(b)  if no such determination has been made in respect of the particular zone, that is a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in that named land use zone.

(2)  An assessment made by a relevant authority under subsection (1)(b) applies only in respect of the particular development that is proposed to be carried out and more than one such assessment may be made in respect of the same land use zone.

(3)  Despite subsection (1), in relation to land—

(a)  to which an environmental planning instrument that is not made as provided by section 3.20(2) of the Act applies, and

(b)  to which a draft environmental planning instrument that complies with that section and that has been the subject of community consultation also applies,

a reference in this Chapter to a lot or land in a named land use zone is a reference to a lot or land specified in a land use zone that is equivalent to such a zone in the last such draft environmental planning instrument that was the subject of such community consultation.

(4)  In subsection (3), community consultation means community consultation under clause 4 of Schedule 1 to the Act or public exhibition under section 66 of the Act (as continued on by clause 12 of the Environmental Planning and Assessment Regulation 2000).

(5)  In this section, relevant authority means—

(a)  the public authority proposing to carry out the development, or on whose behalf the development is proposed to be carried out, or

(b)  if the development is to be carried out by or on behalf of a person other than a public authority, the Secretary.

Note—

Land use zones that are named in this Chapter are those set out in the standard instrument.

2.5 Interpretation—references to maps

(1)  A reference in this Chapter to a named map adopted by this Chapter is a reference to a map by that name—

(a)  approved by the Minister when the map is adopted, and

(b)  as amended or replaced from time to time by maps declared by environmental planning instruments to amend or replace that map, and approved by the Minister when the instruments are made.

(2)  Any 2 or more named maps may be combined into a single map. In that case, a reference in this Chapter to any such named map is a reference to the relevant part or aspect of the single map.

(3)  Any such maps are to be kept and made available for public access in accordance with arrangements approved by the Minister.

2.6 Preconditions to carrying out certain development

For the purposes of this Chapter, and despite any other provision of this Chapter, development that is subject to a precondition that must be satisfied before it may be carried out without development consent is not development that may be carried out without development consent under this Chapter until the precondition is satisfied.

2.7 Relationship to other environmental planning instruments

Note—

This section is subject to section 3.28(4) of the Act.

(1)  Except as provided by subsection (2), if there is an inconsistency between this Chapter and any other environmental planning instrument, whether made before or after the commencement of this Chapter, this Chapter prevails to the extent of the inconsistency.

Note—

Subsection (1) does not prevent a local environmental plan from making provision about development of a kind specified in Part 2.3 in a particular zone if the provisions of this Chapter dealing with development of that kind do not apply in that zone.

(2)  Except as provided by subsections (3) and (4), if there is an inconsistency between a provision of this Chapter and any of the following provisions of another environmental planning instrument, the provision of the other instrument prevails to the extent of the inconsistency—

(a)  clauses 10, 11 and 19 of State Environmental Planning Policy (Coastal Management) 2018,

(b)  all of the provisions of State Environmental Planning Policy (State Significant Precincts) 2005.

(3)  Section 2.54 of this Chapter prevails over clauses 10 and 11 of State Environmental Planning Policy (Coastal Management) 2018 to the extent of any inconsistency.

(4)  A provision of this Chapter that permits development for the purpose of emergency works or routine maintenance works to be carried out without consent, or that provides that development for that purpose is exempt development, prevails over clauses 10 and 11 of State Environmental Planning Policy (Coastal Management) 2018 to the extent of any inconsistency, but only if any adverse effect on the land concerned is restricted to the minimum possible to allow the works to be carried out.

(5)  For the avoidance of doubt, development to which subsection (3) or (4) applies is not declared designated development for the purposes of the Act.

2.8 Suspension of laws

(1)  The Acts, regulations and provisions of Acts specified below in relation to particular development to which this Chapter applies do not apply to that development to the extent necessary to enable the development to be carried out in accordance with this Chapter or with a consent granted under the Act—

(a)  development to which clause 7(2) of State Environmental Planning Policy No 54—Northside Storage Tunnel applied immediately before its repeal—so much of the National Parks and Wildlife Act 1974 and the regulations made under that Act as would prevent or restrict the continued operation of the Northside Storage Tunnel (as defined by section 2.125),

(b)  development to which clause 9(1) of State Environmental Planning Policy No 63—Major Transport Projects applied immediately before its repeal—section 68 of the Local Government Act 1993 and sections 86, 87 and 91(b) of the Public Works Act 1912,

(c)  development to which clause 8(1) of State Environmental Planning Policy (Sydney Metropolitan Water Supply) 2004 applied immediately before its repeal—Part 4 and Divisions 8 and 9 of Part 6 of the Heritage Act 1977,

(d)  development to which clause 9(1) of State Environmental Planning Policy (Sydney Metropolitan Water Supply) 2004 applied immediately before its repeal—

(i)  the Fisheries Management Act 1994 and the regulations made under that Act, and

(ii)  section 68 of the Local Government Act 1993, and

(iii)  so much of the National Parks and Wildlife Act 1974 and the regulations made under that Act as would prevent or restrict the laying, maintenance or use of seawater inlet and outlet pipelines and tunnelling under Botany Bay National Park, or to a sewer line, for a desalination plant (including a pilot plant) on the Kurnell Peninsula.

(2)  This section does not affect the rights or interests of any public authority under any registered instrument.

(3)  In accordance with clause 28 of the Environmental Planning and Assessment Act 1979, before the making of this Chapter, the Governor approved the making of this section with the concurrence in writing of the Ministers administering the Acts referred to in subsection (1).

2.9 Review of Policy

The Minister must ensure that the provisions of this Chapter are reviewed—

(a)  as soon as practicable after the first anniversary of the commencement of this Chapter, and

(b)  at least every 5 years after that commencement.

Part 2.2 General

Division 1 Consultation

2.10 Consultation with councils—development with impacts on council-related infrastructure or services

(1)  This section applies to development carried out by or on behalf of a public authority that this Chapter provides may be carried out without consent if, in the opinion of the public authority, the development—

(a)  will have a substantial impact on stormwater management services provided by a council, or

(b)  is likely to generate traffic to an extent that will strain the capacity of the road system in a local government area, or

(c)  involves connection to, and a substantial impact on the capacity of, any part of a sewerage system owned by a council, or

(d)  involves connection to, and use of a substantial volume of water from, any part of a water supply system owned by a council, or

(e)  involves the installation of a temporary structure on, or the enclosing of, a public place that is under a council’s management or control that is likely to cause a disruption to pedestrian or vehicular traffic that is not minor or inconsequential, or

(f)  involves excavation that is not minor or inconsequential of the surface of, or a footpath adjacent to, a road for which a council is the roads authority under the Roads Act 1993 (if the public authority that is carrying out the development, or on whose behalf it is being carried out, is not responsible for the maintenance of the road or footpath).

(2)  A public authority, or a person acting on behalf of a public authority, must not carry out development to which this section applies unless the authority or the person has—

(a)  given written notice of the intention to carry out the development (together with a scope of works) to the council for the area in which the land is located, and

(b)  taken into consideration any response to the notice that is received from the council within 21 days after the notice is given.

2.11 Consultation with councils—development with impacts on local heritage

(1)  This section applies to development carried out by or on behalf of a public authority if the development—

(a)  is likely to affect the heritage significance of a local heritage item, or of a heritage conservation area, that is not also a State heritage item, in a way that is more than minor or inconsequential, and

(b)  is development that this Chapter provides may be carried out without consent.

(2)  A public authority, or a person acting on behalf of a public authority, must not carry out development to which this section applies unless the authority or the person has—

(a)  had an assessment of the impact prepared, and

(b)  given written notice of the intention to carry out the development, with a copy of the assessment and a scope of works, to the council for the area in which the heritage item or heritage conservation area (or the relevant part of such an area) is located, and

(c)  taken into consideration any response to the notice that is received from the council within 21 days after the notice is given.

2.12 Consultation with councils—development with impacts on flood liable land

(1)  In this section, flood liable land means land that is susceptible to flooding by the probable maximum flood event, identified in accordance with the principles set out in the manual entitled Floodplain Development Manual: the management of flood liable land published by the New South Wales Government and as in force from time to time.

(2)  A public authority, or a person acting on behalf of a public authority, must not carry out, on flood liable land, development that this Chapter provides may be carried out without consent and that will change flood patterns other than to a minor extent unless the authority or person has—

(a)  given written notice of the intention to carry out the development (together with a scope of works) to the council for the area in which the land is located, and

(b)  taken into consideration any response to the notice that is received from the council within 21 days after the notice is given.

2.13 Consultation with State Emergency Service—development with impacts on flood liable land

(1)  A public authority, or a person acting on behalf of a public authority, must not carry out development on flood liable land that may be carried out without development consent under a relevant provision unless the authority or person has—

(a)  given written notice of the intention to carry out the development (together with a scope of works) to the State Emergency Service, and

(b)  taken into consideration any response to the notice that is received from the State Emergency Service within 21 days after the notice is given.

(2)  Any of the following provisions in Part 2.3 is a relevant provision—

(a)  Division 1 (Air transport facilities),

(b)  Division 2 (Correctional centres and correctional complexes),

(c)  Division 6 (Emergency services facilities and bush fire hazard reduction),

(d)  Division 10 (Health services facilities),

(e)  Division 14 (Public administration buildings and buildings of the Crown),

(f)  Division 15 (Railways),

(g)  Division 16 (Research and monitoring stations),

(h)  Division 17 (Roads and traffic),

(i)  Division 20 (Stormwater management systems).

(3)  This section does not apply in relation to the carrying out of minor alterations or additions to, or the demolition of, a building, emergency works or routine maintenance.

(4)  In this section, flood liable land means land that is susceptible to flooding by the probable maximum flood event, identified in accordance with the principles set out in the manual entitled Floodplain Development Manual: the management of flood liable land published by the New South Wales Government and as in force from time to time.

2.14 Consultation with councils—development with impacts on certain land within the coastal zone

(1)  This section applies to development on land that is within a coastal vulnerability area and is inconsistent with a certified coastal management program that applies to that land.

(2)  A public authority, or a person acting on behalf of a public authority, must not carry out development to which this section applies, which this Chapter provides may be carried out without development consent, unless the authority or person has—

(a)  given written notice of the intention to carry out the development to the council for the local government area in which the land is located, and

(b)  taken into consideration any response to the notice that is received from the council within 21 days after the notice is given.

(3)  In this section—

certified coastal management program has the same meaning as in State Environmental Planning Policy (Coastal Management) 2018.

coastal vulnerability area has the same meaning as in the Coastal Management Act 2016.

2.15 Consultation with public authorities other than councils

(1)  A public authority, or a person acting on behalf of a public authority, must not carry out specified development that this Chapter provides may be carried out without consent unless the authority or person has—

(a)  given written notice of the intention to carry out the development (together with a scope of works) to the specified authority in relation to the development, and

(b)  taken into consideration any response to the notice that is received from that authority within 21 days after the notice is given.

(2)  For the purposes of subsection (1), the following development is specified development and the following authorities are specified authorities in relation to that development—

(a)  development adjacent to land reserved under the National Parks and Wildlife Act 1974 or to land acquired under Part 11 of that Act—the Office of Environment and Heritage,

(b)  development on land in Zone E1 National Parks and Nature Reserves or in a land use zone that is equivalent to that zone, other than land reserved under the National Parks and Wildlife Act 1974—the Office of Environment and Heritage,

(c)  development comprising a fixed or floating structure in or over navigable waters—Transport for NSW,

(d)  development that may increase the amount of artificial light in the night sky and that is on land within the dark sky region as identified on the dark sky region map—the Director of the Observatory,

Note—

The dark sky region is land within 200 kilometres of the Siding Spring Observatory.

(e)  development on defence communications facility buffer land within the meaning of clause 5.15 of the Standard Instrument—the Secretary of the Commonwealth Department of Defence,

Note—

Defence communications facility buffer land is located around the defence communications facility near Morundah. See the Defence Communications Facility Buffer Map referred to in clause 5.15 of Lockhart Local Environmental Plan 2012, Narrandera Local Environmental Plan 2013 and Urana Local Environmental Plan 2011.

(f)  development on land in a mine subsidence district within the meaning of the Mine Subsidence Compensation Act 1961—the Mine Subsidence Board.

(3)  In this section—

dark sky region map means the map marked “Dark Sky Region Map” held in the head office of the Department of Planning and Environment.

Note—

Clause 18A(2) of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 requires public authorities (or persons acting on their behalf) to consult with the Department of Planning and Environment before carrying out any development comprising the clearing of native vegetation on certain land within a growth centre (within the meaning of that Policy). The land concerned is land other than the subject land (within the meaning of Part 7 of Schedule 7 to the Threatened Species Conservation Act 1995). The subject land is generally land to which precinct plans apply under that Policy.

2.16 Consideration of Planning for Bush Fire Protection

(1)  This section applies to development for the following purposes that this Chapter provides may be carried out without development consent—

(a)  health services facilities,

(b)  correctional centres,

(c)  residential accommodation.

(2)  A public authority, or a person acting on behalf of a public authority, must consider Planning for Bush Fire Protection before carrying out the development in an area that is bush fire prone land.

(3)  In this section—

bush fire prone land means land recorded for the time being as bush fire prone land on a map certified under the Act, section 10.3(2).

Planning for Bush Fire Protection means the document entitled Planning for Bush Fire Protection, ISBN 978 0 646 99126 9, prepared by the NSW Rural Fire Service in co-operation with the Department of Planning, Industry and Environment, dated November 2019.

2.17 Exceptions

(1)  Sections 2.10–2.15 do not apply with respect to development to the extent that—

(a)  they would require notice of the intention to carry out the development to be given to a council or public authority from whom an approval is required in order for the development to be carried out lawfully, or

(b)  they would require notice to be given to a council or public authority with whom the public authority that is carrying out the development, or on whose behalf it is being carried out, has an agreed consultation protocol that applies to the development, or

(c)  they would require notice to be given to a council or public authority that is carrying out the development or on whose behalf it is being carried out, or

(d)  the development is exempt development or complying development under any environmental planning instrument (including this Chapter), or

(e)  the development comprises emergency works, or

(f)  the development is carried out in accordance with a code of practice approved by the Minister for the purposes of this section and published in the Gazette.

(2)  In this section—

approval means any licence, permission or any form of authorisation, other than development consent, under any other law.

consultation protocol means an arrangement that—

(a)  is about when and how the parties to the arrangement will consult one another about proposed development, and

(b)  is recorded in writing, and

(c)  is approved in writing on behalf of any public authority that is a party to the arrangement by a person who is authorised to do so.

Division 2 Additional uses of State land

Note—

Consent for development under this Division may be granted only if the development is the subject of a certificate of the Secretary certifying that the development is compatible with surrounding land uses. The provisions of this Division extend to the classes of development specified in sections 2.60(2) and 62(1).

2.18 Additional uses of certain State land permitted

(1)  In this section, prescribed State land means State land that is—

(a)  not subject to a standard local environmental plan made as provided by section 3.20(2) of the Act, and

(b)  not zoned for conservation purposes under an environmental planning instrument, and

(c)  not a forestry area within the meaning of the Forestry Act 2012, and

(d)  not reserved under the National Parks and Wildlife Act 1974, and

(e)  not reserved under the Crown Land Management Act 2016 for a public purpose that, in the opinion of the Secretary, is an environmental protection or nature conservation purpose.

(2)  Development on land for a purpose that is permitted without consent by the zoning of that land may be carried out without consent on adjacent land that is prescribed State land despite any local environmental plan applying to that adjacent land.

Note—

This subsection and subsection (3) apply whether or not the land to which the relevant zoning applies and the adjacent State land (or former State land) are subject to the same environmental planning instruments.

(3)  Development on land for a purpose that is permitted with consent by the zoning of that land may be carried out with consent on adjacent land, despite any local environmental plan applying to that adjacent land, if—

(a)  there is a valid site compatibility certificate applying to the development, and

(b)  the adjacent land was prescribed State land when the Secretary issued the certificate.

(4)  However, subsection (3) does not apply in relation to the development if the adjacent land concerned is no longer prescribed State land because it is—

(a)  a forestry area within the meaning of the Forestry Act 2012, or

(b)  reserved under the National Parks and Wildlife Act 1974, or

(c)  reserved under the Crown Land Management Act 2016 for a public purpose that, in the opinion of the Secretary, is an environmental protection or nature conservation purpose.

(5)  This section does not—

(a)  prevent a consent authority from—

(i)  granting consent for development on a site by reference to site and design features that are more stringent than those identified in a site compatibility certificate for the same site, or

(ii)  refusing to grant consent for development by reference to the consent authority’s own assessment of the compatibility of the development with the surrounding land uses, or

(b)  otherwise limit the matters to which a consent authority may have regard in determining a development application for development to which this section applies.

(6)  Land is adjacent to other land for the purpose of this section even if it is separated from that other land by a road, or road related area, as defined by the Road Transport (General) Act 2005.

(7)  In this section, a reference to land zoned for conservation purposes means land in any of the following land use zones or in a land use zone that is equivalent to any of those zones—

(a)  RE1 Public Recreation,

(b)  E1 National Parks and Nature Reserves,

(c)  E2 Environmental Conservation,

(d)  W1 Natural Waterways.

Division 3 Site compatibility certificates

2.19 Site compatibility certificates

(1)  An application for a site compatibility certificate for the purpose of section 2.18, 2.60(3) or 63C(2)(a) may be made to the Secretary—

(a)  by the owner of the land on which the development is proposed to be carried out, or

(b)  by any other person with the consent of the owner of that land.

(2)  An application under this section—

(a)  must be in writing in the form approved by the Secretary, and

(b)  must be accompanied by such documents and information as the Secretary may require, and

(c)  must be accompanied by such fee, if any, as is prescribed by the regulations.

(3)  The Secretary may request further documents and information to be furnished in connection with an application under this section.

(4)  Within 7 days after the application is made, the Secretary must provide a copy of the application to the council for the area in which the development concerned is proposed to be carried out, unless the Secretary refuses, before those 7 days have elapsed, to issue a certificate.

(5)  Subject to subsection (6), the Secretary may determine the application by issuing a certificate or refusing to do so.

(6)  The Secretary must not issue a certificate unless the Secretary—

(a)  has taken into account any comments received from the council within 21 days after the application for the certificate was made, and

(b)  is of the opinion that the development concerned is compatible with the surrounding land uses having regard to the following matters—

(i)  the existing uses and approved uses of land in the vicinity of the development,

(ii)  the impact that the development (including its bulk and scale) is likely to have on the existing uses, approved uses and uses that, in the opinion of the Secretary, are likely to be the preferred future uses of that land,

(iii)  the services and infrastructure that are or will be available to meet the demands arising from the development, and

(c)  is of the opinion that the development concerned is not likely to have an adverse effect on the environment and does not cause any unacceptable environmental risks to the land.

(7)  A certificate may certify that the development to which it relates is compatible with the surrounding land uses only if it satisfies certain requirements specified in the certificate.

(8)  A certificate continues to apply to the land in respect of which it was issued despite any change in the ownership of that land.

(9)  A certificate is valid for 5 years or such other period specified in the certificate.

Division 4 Exempt development

Note 1—

Section 4.1 of the Act contains requirements applying to exempt development.

Note 2—

In addition to the requirements set out in this Chapter in relation to exempt development, adjoining owners’ property rights, the applicable common law and other legislative requirements for approvals, licences, permits and authorities still apply. For example, requirements relevant to the kind of exempt development concerned may be contained in the Act, the Environmental Planning and Assessment Regulation 2000, various State environmental planning policies, the Protection of the Environment Operations Act 1997, the Roads Act 1993 and Acts applying to various infrastructure authorities. If the development is in proximity to infrastructure, including water, stormwater and sewer mains, electricity power lines and telecommunications facilities, the relevant infrastructure authority should be contacted before commencing the development.

2.20 General requirements for exempt development

(1)  This section applies to any development that this Chapter provides is exempt development.

Note—

Section 2.21 and other provisions of this Chapter identify kinds of development that are exempt development if they meet the requirements of this section.

(2)  To be exempt development, the development—

(a)  must meet the relevant deemed-to-satisfy provisions of the Building Code of Australia, or if there are no such relevant provisions, must be structurally adequate, and

(b)  must not, if it relates to an existing building—

(i)  cause the building to contravene the Building Code of Australia, or

(ii)  compromise the fire safety of the building or affect access to any fire exit, and

(c)  must be carried out in accordance with all relevant requirements of the Blue Book, and

(d)  must not be designated development, and

Note—

Designated development is defined in section 4.10 of the Act as development that is declared to be designated development by an environmental planning instrument or the regulations.

(e)  if it is likely to affect a State or local heritage item or a heritage conservation area, must involve no more than minimal impact on the heritage significance of the item or area, and

(f)  must not involve the demolition of a building or work that is, or is part of, a State or local heritage item, and

(g)  if it involves the demolition of a building, must be carried out in accordance with Australian Standard AS 2601—2001, The demolition of structures, and

(h)  must be installed in accordance with the manufacturer’s specifications, if applicable, and

(i)  must not involve the removal or pruning of a tree or other vegetation that requires a permit or development consent for removal or pruning, unless that removal or pruning is undertaken in accordance with a permit or development consent, and

Note—

A permit for the removal or pruning of a tree or other vegetation may be granted under a local environmental plan. A development consent for the removal of native vegetation may be granted under the Native Vegetation Act 2003.

(j)  must not involve the removal of asbestos, unless that removal is undertaken in accordance with Working with Asbestos: Guide 2008 (ISBN 0 7310 5159 9) published by the WorkCover Authority.

2.21 Exempt development carried out by public authorities for purposes in Schedule 1

(1)  Development for a purpose specified in Schedule 1 is exempt development if—

(a)  it is carried out by or on behalf of a public authority, and

(b)  it meets the development standards for the development specified in Schedule 1, and

(c)  it complies with section 2.20.

(2)  This section does not apply to development carried out by public authorities in connection with an existing educational establishment.

Note—

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 provides for exempt development carried out by public authorities in connection with an existing educational establishment.

(3)  Any other provision of this Chapter prevails over Schedule 1 to this Chapter to the extent of any inconsistency.

Division 5 Complying development

Note—

Clause 1.17A of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 contains requirements that must be met for development to be complying development.

2.22 General requirements for complying development

(1)  This section applies to any development that this Chapter provides is complying development.

(2)  To be complying development, the development must—

(a)  not be exempt development under this Chapter, and

(b)  be permissible, with consent, under an environmental planning instrument applying to the land on which the development is carried out, and

Note—

Accordingly, development that is permitted to be carried out without consent is not complying development.

(c)  meet the relevant provisions of the Building Code of Australia, and

(d)  must be carried out in accordance with the relevant provisions of the Blue Book, and

(e)  before the complying development certificate is issued, have written consent from the relevant roads authority, 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

(f)  if it is the alteration or erection of improvements on land in a mine subsidence district within the meaning of the Mine Subsidence Compensation Act 1961, have the prior approval of the Mine Subsidence Board, and

Note—

Information about mine subsidence is information that is a prescribed matter for the purpose of a planning certificate under section 10.7(2) of the Act.

(g)  not involve the removal or pruning of a tree or other vegetation that requires a permit or development consent for removal or pruning, unless that removal or pruning is undertaken in accordance with a permit or development consent, and

Note—

A permit for the removal or pruning of a tree or other vegetation may be granted under a local environmental plan. A development consent for the removal of native vegetation may be granted under the Native Vegetation Act 2003.

(h)  not be carried out within 1m of any public sewer, if the development comprises the erection of a building, except with the written approval of the authority that has management or control of that sewer, and

(i)  not involve the removal of asbestos, unless that removal is undertaken in accordance with Working with Asbestos: Guide 2008 (ISBN 0 7310 5159 9) published by the WorkCover Authority.

2.23 General conditions of complying development certificates

Note—

The Protection of the Environment Operations Act 1997 and the Protection of the Environment Operations (Noise Control) Regulation 2008 contain provisions relating to noise.

(1) General A complying development certificate for complying development under this Chapter is subject to the conditions specified in this section.

Note—

The regulations made under the Act contain additional conditions of a complying development certificate.

(2) Conditions applying before works commence A temporary hoarding or temporary construction site fence must be erected between the work site and adjoining lands before the works begin and must be kept in place until after the completion of works if the works—

(a)  could cause a danger, obstruction or inconvenience to pedestrian or vehicular traffic, or

(b)  could cause damage to adjoining lands by falling objects, or

(c)  involve the enclosure of a public place or part of a public place.

Note—

See the entry for hoardings in Schedule 1. See also the entry for scaffolding, hoardings and temporary construction site fences in the General Exempt Development Code in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

(3)  Toilet facilities must be available or provided at the work site before works begin and must be maintained until the works are completed at a ratio of one toilet plus one additional toilet for every 20 persons employed at the site.

(4)  Each toilet must—

(a)  be a standard flushing toilet connected to a public sewer, or

(b)  have an on-site effluent disposal system approved under the Local Government Act 1993, or

(c)  be a temporary chemical closet approved under the Local Government Act 1993.

(5)  A garbage receptacle must be provided at the work site before works begin and must be maintained until the works are completed.

(6) Conditions applying during works Construction or demolition may only be carried out between 7.00 am and 5.00 pm on Monday to Saturday and no construction or demolition is to be carried out at any time on a Sunday or a public holiday.

(7)  Works must be carried out in accordance with the plans and specifications to which the complying development certificate relates.

(8)  If works involve the demolition of a building, demolition must be carried out in accordance with Australian Standard AS 2601—2001, The demolition of structures.

(9)  Erosion and sediment controls must be effectively maintained until the site has been stabilised and landscaped.

(10)  If any object (other than an Aboriginal object) having interest due to its age or association with the past is discovered during the course of the work—

(a)  all work must stop immediately, and

(b)  the Office of Environment and Heritage must be advised of the discovery.

Note—

Depending on the nature and significance of the object, an archaeological assessment and excavation permit under the Heritage Act 1977 may be required before the work can continue.

(11)  If any Aboriginal object (including any evidence of habitation or remains) is discovered during the course of the work—

(a)  all work must stop immediately, and

(b)  the Chief Executive of the Office of Environment and Heritage must be advised of the discovery in accordance with section 89A of the National Parks and Wildlife Act 1974.

Note—

If an Aboriginal object is discovered, an Aboriginal heritage impact permit may be required under the National Parks and Wildlife Act 1974.

(12)  Dirt, sand and other materials relating to the construction or other work comprised in the development and loaded on to any vehicles entering or leaving the site must be covered.

(13)  All vehicles, before leaving the site, must be cleaned of dirt, sand or other materials that have adhered during that construction or other work and could be tracked onto public roads.

(14)  Building, or demolition, materials and equipment must be stored wholly within the work site unless an approval to store them elsewhere is held.

(15)  Demolition materials and waste materials must be sorted, and must be disposed of at a waste or resource management facility.

(16)  The work site must be left clear of waste and debris at the completion of the works.

(17) Utility services If the complying development requires alteration to, or the relocation of, utility services on the lot on which the complying development is carried out, the complying development is not complete until all such works are carried out.

(18) Post-works requirements If—

(a)  the development involves the erection or change of use of a building within a water supply authority’s area of operations, and

(b)  the water supply authority requires a certificate of compliance to be obtained with respect to the erection or change of use of the building,

the building cannot be occupied before such a certificate has been obtained.

(19)  In this section—

certificate of compliance, in relation to a water supply authority, means a certificate of compliance issued by the water supply authority under the Act under which the water supply authority is constituted.

water supply authority means—

(a)  the Sydney Water Corporation, the Hunter Water Corporation or a water supply authority within the meaning of the Water Management Act 2000, or

(b)  a council or county council exercising water supply, sewerage or stormwater drainage functions under Division 2 of Part 3 of Chapter 6 of the Local Government Act 1993.

Part 2.3 Development controls

Division 1 Air transport facilities

2.24 Development permitted without consent

(1)  Development for the purpose of an airport may be carried out by or on behalf of a public authority without consent on land in any of the following land use zones or in a land use zone that is equivalent to any of those zones—

(a)  RU1 Primary Production,

(b)  RU2 Rural Landscape,

(c)  IN4 Working Waterfront,

(d)  SP1 Special Activities,

(e)  SP2 Infrastructure,

(f)  W2 Recreational Waterways,

(g)  W3 Working Waterways.

(2)  Development for the purpose of an air transport facility, being a heliport that is not part of an airport, may be carried out by or on behalf of a public authority without consent on land in any of the following land use zones or in a land use zone that is equivalent to any of these zones—

(a)  RU1 Primary Production,

(b)  RU2 Rural Landscape,

(c)  RU4 Primary Production Small Lots,

(d)  IN1 General Industrial,

(e)  IN2 Light Industrial,

(f)  IN3 Heavy Industrial,

(g)  IN4 Working Waterfront,

(h)  SP1 Special Activities,

(i)  SP2 Infrastructure,

(j)  W2 Recreational Waterways,

(k)  W3 Working Waterways.

(3)  A reference in this section to development for the purpose of an air transport facility includes a reference to development for any of the following purposes if the development is in connection with an air transport facility—

(a)  construction works,

(b)  fencing, drainage or vegetation management.

2.25 Development permitted with consent

Development for any of the following purposes may be carried out with consent on land within the boundaries of an existing air transport facility if the development is ancillary to the air transport facility—

(a)  passenger transport facilities,

(b)  facilities for the receipt, forwarding or storage of freight,

(c)  hangars for aircraft storage or maintenance,

(d)  commercial premises,

(e)  industries,

(f)  recreation areas, recreation facilities (indoor) or recreation facilities (outdoor),

(g)  residential accommodation,

(h)  tourist and visitor accommodation.

Division 2 Correctional centres and correctional complexes

2.26 Definitions

In this Division—

correctional centre means—

(a)  any premises declared to be a correctional centre by a proclamation in force under section 225 of the Crimes (Administration of Sentences) Act 1999, including any juvenile correctional centre declared under section 225A of that Act, and

(b)  any premises declared to be a detention centre by an order in force under section 5(1) of the Children (Detention Centres) Act 1987,

but does not include any police station or court cell complex in which a person is held in custody in accordance with any Act.

correctional complex means any premises declared to be a correctional complex by a proclamation in force under section 224 of the Crimes (Administration of Sentences) Act 1999.

prescribed zone means any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  RU2 Rural Landscape,

(b)  RU4 Primary Production Small Lots,

(c)  RU6 Transition,

(d)  B4 Mixed Use,

(e)  SP1 Special Activities,

(f)  SP2 Infrastructure.

2.27 Development permitted with consent

(1)  Development for the purpose of correctional centres may be carried out by or on behalf of a public authority with consent on land in a prescribed zone or within the boundaries of an existing correctional complex.

(2)  A reference in this section to development for the purpose of correctional centres includes a reference to development for any of the following purposes if the development is associated with a correctional centre—

(a)  accommodation for staff,

(b)  administration buildings,

(c)  car parks for visitors and staff,

(d)  educational establishments,

(e)  group homes,

(f)  health services facilities,

(g)  industries,

(h)  recreational facilities.

2.28 Development permitted without consent

(1)  Development for any of the following purposes may be carried out by or on behalf of a public authority without consent on any land if the development is carried out within the boundaries of an existing correctional centre—

(a)  replacement of buildings,

(b)  alterations of, or additions to, a correctional centre,

(c)  demolition of buildings.

(2)  Development for any of the following purposes may be carried out by or on behalf of a public authority without consent on any land if the development is carried out within the boundaries of an existing correctional complex—

(a)  transitional group homes that each contain not more than 5 bedrooms and accommodate fewer residents than the number equal to the number calculated by multiplying the number of bedrooms in the home by 2,

(b)  sporting facilities or additions to sporting facilities, if the development does not involve clearing of more than 2 hectares of native vegetation,

(c)  demolition of buildings,

(d)  replacement of accommodation, administration or other facilities in a correctional complex,

(e)  alterations of, or additions to, a building within a correctional complex,

(f)  construction or realignment of security fencing with a height of not more than 12 metres above ground level (existing),

(g)  ancillary facilities, such as car parks, storage buildings, facilities used for the purpose of educating prisoners, administration buildings, utilities and gate houses, if any such facility does not exceed 1 storey and is setback at least 5 metres from any boundary with a residential zone and at least 1 metre from any other zone boundary.

(3)  Development for any of the following purposes may be carried out by or on behalf of a public authority without consent on land identified on the Correctional Centres Map—

(a)  correctional centres, if the land is identified as “Centre” on the Correctional Centres Map,

(b)  ancillary facilities, such as car parks, storage buildings, facilities used for the purpose of educating prisoners, administration buildings, utilities and gate houses, provided any such facility is erected within the boundaries of a correctional complex.

(4)  In this section, Correctional Centres Map means the State Environmental Planning Policy (Infrastructure) 2007 Correctional Centres Map.

2.29 Exempt development

Development for any of the following purposes is exempt development if it complies with section 2.20 and is carried out by or on behalf of a public authority within the boundaries of an existing correctional centre—

(a)  demolition of buildings, if the footprint of the building covers an area no greater than 250 square metres,

(b)  at grade car parks,

(c)  outdoor recreational facilities, including playing fields and associated earthworks,

(d)  environmental management works,

(e)  landscaping, including landscape structures or features and irrigation systems (whether or not they use recycled water),

(f)  emergency or maintenance works in relation to security fences.

2.30 Complying development

(1)  Development carried out by or on behalf of a public authority on land within the boundaries of an existing correctional centre is complying development if—

(a)  the development consists of the replacement of, construction of, or alterations or additions to accommodation, administration or other facilities, and

(b)  the development complies with this section and section 2.22 (General requirements for complying development).

(2)  The following are the development standards for complying development under this section—

(a)  Building height standard. The building height of a building must not exceed 12 metres.

(b)  Side and rear setback standard. A building must be located at least 5 metres from any side or rear boundary of the land.

Division 3 Data storage

2.31 Development permitted with consent

(1)  Development for the purpose of storage premises used for the storage of data and related information technology hardware may be carried out by any person with consent on land in a prescribed zone.

(2)  In this section—

prescribed zone means any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  B5 Business Development,

(b)  B6 Enterprise Corridor,

(c)  B7 Business Park,

(d)  IN1 General Industrial,

(e)  IN2 Light Industrial,

(f)  IN3 Heavy Industrial.

Division 3A Dog-proof fences in Western Division of State

2.32 Definitions

In this Division—

border fence means the Queensland Border Fence, the South Australian Border Fence and an extended border fence.

dog-proof fence, Queensland Border Fence and South Australian Border Fence have the same meanings as in the Border Fence Maintenance Act 1921.

extended border fence means a dog-proof fence that is an extension of the Queensland Border Fence or the South Australian Border Fence.

relevant land means land in the Western Division that is along and in the vicinity of the borders between New South Wales and South Australia and New South Wales and Queensland and includes land in the vicinity of the Queensland Border Fence or the South Australian Border Fence.

Western Division has the same meaning as in the Crown Land Management Act 2016.

2.33 Development permitted without consent

(1)  Development for the following purposes may be carried out by any person without development consent on relevant land—

(a)  maintenance or reconstruction of a border fence,

(b)  the laying of a clay surface alongside a border fence to stabilise it and any associated excavation.

(2)  Development for the purposes of the construction of an extended border fence may be carried out by or on behalf of a public authority without development consent on relevant land.

2.34 Exempt development

(1)  Development on relevant land in connection with a dog-proof fence for the following purposes is exempt development—

(a)  emergency repairs,

(b)  installation, maintenance or removal of gates, signage or wires.

(2)  Development is exempt development under this section only if the development—

(a)  complies with section 2.20, and

(b)  involves no greater disturbance to the ground or native vegetation than necessary, and

(c)  does not disturb any ground or native vegetation that is more than 8 metres from the dog-proof fence.

Division 4 Electricity generating works or solar energy systems

2.35 Definitions

In this Division—

electricity generating works means a building or place used for the following purposes, but does not include a solar energy system—

(a)  making or generating electricity,

(b)  electricity storage.

prescribed residential zone means any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  Zone R1 General Residential,

(b)  Zone R2 Low Density Residential,

(c)  Zone R3 Medium Density Residential,

(d)  Zone R4 High Density Residential,

(e)  Zone R5 Large Lot Residential,

(f)  Zone RU5 Village.

prescribed rural zone means any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  Zone RU1 Primary Production,

(b)  Zone RU2 Rural Landscape,

(c)  Zone RU3 Forestry,

(d)  Zone RU4 Primary Production Small Lots.

prescribed rural, industrial or special use zone means any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  RU1 Primary Production,

(b)  RU2 Rural Landscape,

(c)  RU3 Forestry,

(d)  RU4 Primary Production Small Lots,

(e)  IN1 General Industrial,

(f)  IN2 Light Industrial,

(g)  IN3 Heavy Industrial,

(h)  IN4 Working Waterfront,

(i)  SP1 Special Activities,

(j)  SP2 Infrastructure.

small wind turbine means a wind turbine that has a generating capacity of no more than 100kW.

small wind turbine system means a system comprising one or more small wind turbines each of which feed into the same grid or battery bank.

small-scale battery system means a battery system designed only for the purposes of the storage of photovoltaic solar energy generated from a solar energy system.

solar energy system means any of the following systems—

(a)  a photovoltaic electricity generating system used for the primary purpose of generating electricity for a land use—

(i)  carried out on the land on which the system is located, or

(ii)  carried out by the owner of the system on adjoining land,

(b)  a solar hot water system,

(c)  a solar air heating system.

waste or resource management facility has the same meaning as in the Standard Instrument.

s 2.35: Am 2022 (132), Sch 1[1]–[3].

2.36 Development permitted with consent

(1)  Development for the purpose of electricity generating works may be carried out by any person with consent on the following land—

(a)  in the case of electricity generating works comprising a building or place used for the purpose of making or generating electricity using waves, tides or aquatic thermal as the relevant fuel source—on any land,

(b)  in any other case—any land in a prescribed rural, industrial or special use zone.

(2)  Development for the purpose of a back-up electricity generating plant that operates for not more than 200 hours in any year may be carried out by any person with consent on any land.

(3)  Development for the purpose of the expansion of existing electricity generating works may be carried out by or on behalf of a public authority with consent on any land that is adjacent to the existing works.

(4)  Consent is not required to carry out any such development on land if the development could, but for subsection (3), be carried out on that land without consent.

(5)  Development for the purpose of, or resulting in, a change of fuel source of an existing coal or gas fired generating works by a proportion of more than 5 per cent in any 12 month period may only be carried out with consent.

(6)  If, under any environmental planning instrument (including this Chapter), development for the purpose of—

(a)  industry, or

(b)  a waste or resource management facility,

may be carried out on land with consent, development for the purpose of electricity generating works that generate energy from waste, or from gas generated by waste, may also be carried out by any person with consent on that land.

(7)  Without limiting subsection (1), development for the purpose of a small wind turbine system may be carried out by any person with consent on any land.

(8)  However, subsection (7) only applies in relation to land in a prescribed residential zone if—

(a)  the small wind turbine system has the capacity to generate no more than 10kW, and

(b)  the height of any ground-mounted small wind turbine in the system from ground level (existing) to the topmost point of the wind turbine is no more than 18m.

(9) Solar energy systems Development for the purpose of a solar energy system may be carried out by any person with consent on any land.

2.37 Other development permitted with consent where electricity generating works permitted

If, under any environmental planning instrument (including this Chapter), development for the purpose of coal-fired or gas-fired electricity generating works may be carried out on land with consent, development for the purpose of industry may also be carried out by any person with consent on that land if the industry—

(a)  is located close to the works, and

(b)  provides opportunities for energy efficiency or co-generation in the operation of the works.

2.38 Development permitted without consent

(1)  Development for any of the following purposes may be carried out by or on behalf of a public authority without consent on any land—

(a)  the generation or distribution of hydro-electric power using existing dam infrastructure,

(b)  routine maintenance of, or emergency works relating to, electricity generating works,

(c)  the installation of plant that—

(i)  is on the site of, and required in connection with, existing electricity generating works, and

(ii)  does not increase the existing electricity generating capacity of the works by more than 2 percent.

(2)  In subsection (1)(c), existing electricity generating capacity of works includes the electricity generating capacity of the works, as changed from time to time as a result of the alteration of the works (other than solely as a result of alterations that have been carried out in reliance on that paragraph).

(3)  If, under any environmental planning instrument (including this Chapter), development for the purpose of sewage treatment plants may be carried out on land without consent, development for the purpose of electricity generating works that generate energy from waste, or from gas generated by waste, may also be carried out by any person without consent on that land.

(4) Solar energy systems Development for the purpose of a solar energy system may be carried out by or on behalf of a public authority without consent on any land if it is ancillary to—

(a)  an existing infrastructure facility, or

(b)  an educational establishment within the meaning of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017.

2.39 Complying development

(1) Small wind turbine systems Development for the purpose of a small wind turbine system is complying development on any land if—

(a)  the development complies with section 2.22, and

(b)  the land is not in a heritage conservation area, and

(c)  the system is installed no less than—

(i)  25 metres—in the case of a system that has a source sound power level of 0–70 dB(A), or

(ii)  40 metres—in the case of a system that has a source sound power level of 71–80 dB(A), or

(iii)  126 metres—in the case of a system that has a source sound power level of 81–90 dB(A), or

(iv)  200 metres—in the case of a system that has a source sound power level of more than 91 dB(A), or

(v)  200 metres—in the case of a system that has an unknown source sound power level,

from any dwelling that is not owned or occupied by the owner of the system, and

(d)  the system is located clear of any works, including power lines, of any relevant network operator (within the meaning of the Electricity Supply Act 1995) and complies with any requirements of the network operator that relate to clearance from those works, and

(e)  the system is installed in accordance with the manufacturer’s specifications or by a person who is endorsed for the design and installation of small wind turbine systems under the Clean Energy Council’s wind endorsement scheme, and

(f)  in the case of any ground-mounted small wind turbine in the system—the turbine does not penetrate any obstacle limitation surface shown on any relevant Obstacle Limitation Surface Plan that has been prepared by the operator of an aerodrome or airport operating within 2 kilometres of the proposed development and reported to the Civil Aviation Safety Authority, and

(g)  in the case of land in a prescribed residential zone—

(i)  the system has the capacity to generate no more than 10kW, and

(ii)  if the system is ground-mounted—

(A)  the development will result in no more than one small wind turbine being situated on the lot concerned, and

(B)  the small wind turbine has a height of not more than 18m above ground level (existing), and

(C)  the small wind turbine is not installed forward of any existing building line on the lot concerned that faces a primary road, and

(iii)  if the system is not ground-mounted—

(A)  the development will result in no more than 2 small wind turbines being situated on the lot concerned, and

(B)  each small wind turbine does not protrude more than 3m above any building to which it is attached (as measured from the point of attachment), and

(C)  each small wind turbine is not attached to a wall or roof facing a primary road, and

(h)  in the case of land in a prescribed rural, industrial or special use zone—

(i)  the system has the capacity to generate no more than 100kW, and

(ii)  if the system is ground-mounted—

(A)  the development will result in no more than 3 small wind turbines being situated on the lot concerned, and

(B)  each small wind turbine has a height of not more than 35m above ground level (existing), and

(iii)  if the system is not ground-mounted—

(A)  the development will result in no more than 4 small wind turbines being situated on the lot concerned, and

(B)  each small wind turbine does not protrude more than 5m above any building to which it is attached (as measured from the point of attachment), and

(i)  in the case of land in any land use zone other than a land use zone referred to in paragraph (g) or (h)—

(i)  the system has the capacity to generate no more than 100kW, and

(ii)  if the system is ground-mounted—

(A)  the development will result in no more than 2 small wind turbines being situated on the lot concerned, and

(B)  each small wind turbine has a height of not more than 26m above ground level (existing), and

(iii)  if the system is not ground-mounted—

(A)  the development will result in no more than 4 small wind turbines being situated on the lot concerned, and

(B)  each small wind turbine does not protrude more than 5m above any building to which it is attached (as measured from the point of attachment).

(2) Solar energy systems Development for the purpose of a solar energy system is complying development on any land if—

(a)  the development complies with section 2.22, and

(b)  the land is not in a heritage conservation area, and

(c)  in the case of development for the purposes of a photovoltaic electricity generating system—the system is installed in accordance with the manufacturer’s specifications or by a person who is accredited by the Clean Energy Council for the installation of photovoltaic electricity generating systems, and

(d)  in the case of development for the purposes of a system other than a photovoltaic electricity generating system—the system is installed in accordance with the manufacturer’s specifications, and

(e)  in the case of a system that is ground-mounted—

(i)  the total area occupied by the system (together with any other ground-mounted solar energy system on the lot concerned) does not exceed 500m², and

(ii)  the system has a height of not more than 10m above ground level (existing), and

(iii)  the system is installed no less than 10m from any adjoining property boundary, and

(iv)  if the system involves the use of mirrors or lenses to reflect or concentrate sunlight—the system is installed no less than 100m from any dwelling or other building that is not owned or occupied by the owner of the system, and

(v)  if the solar energy system is a photovoltaic electricity generating system having the capacity to generate 10kW or more—the system is installed no less than 50m from any dwelling that is not owned or occupied by the owner of the system, and

(f)  in the case of a system that is not ground-mounted—

(i)  the development does not reduce the structural integrity of, or involve structural alterations to, any building to which the system is attached, and

Note—

The term building is defined in the Environmental Planning and Assessment Act 1979 as including any structure.

(ii)  the system does not involve mirrors or lenses to reflect or concentrate sunlight, and

(iii)  if the land is in a prescribed residential zone and the system is attached to a wall or roof facing a primary road—the system does not protrude more than 0.5m from the wall or roof (as measured from the point of attachment), and

(iv)  if the land is in a prescribed residential zone and the system is not attached to a wall or roof facing a primary road—

(A)  the system does not protrude more than 1.5m from any building to which it is attached (as measured from the point of attachment), and

(B)  the system is installed no less than 1m from any adjoining property boundary if the system protrudes more than 0.5m from any building to which it is attached (as measured from the point of attachment), and

(v)  the system does not protrude more than 3m from any building to which it is attached (as measured from the point of attachment) if the land is in a land use zone other than a prescribed residential zone.

(3)  For the purposes of subsection (1)(c), a source sound power level is a level that is measured at a wind speed of no less than 8 metres per second and in accordance with the International Standard IEC 61400—11Noise Measurement.

2.40 Prohibited development

Development on any land for the purpose of electricity generating works that burn native forest bio-material (within the meaning of clause 57L of the Protection of the Environment Operations (General) Regulation 1998) is prohibited.

2.41 Exempt development

(1) Small wind turbine systems Development for the purpose of a small wind turbine system is exempt development on land in a prescribed rural zone if—

(a)  it complies with section 2.20 (other than section 2.20(2)(h)), and

(b)  the system is ground-mounted, and

(c)  each small wind turbine has a height of not more than 35m from ground level (existing), and

(d)  each small wind turbine is installed no less than 200m from any dwelling that is not owned or occupied by the owner of the system, and

(e)  the development will result in no more than 2 small wind turbines being situated on the lot concerned, and

(f)  each small wind turbine is located clear of any works, including power lines, of any relevant network operator (within the meaning of the Electricity Supply Act 1995) and complies with any requirements of the network operator that relate to clearance from those works, and

(g)  each small wind turbine does not penetrate any obstacle limitation surface shown on any relevant Obstacle Limitation Surface Plan that has been prepared by the operator of an aerodrome or airport operating within 2 kilometres of the proposed development and reported to the Civil Aviation Safety Authority, and

(h)  the system is installed in accordance with the manufacturer’s specifications or by a person who is endorsed for the design and installation of small wind systems under the Clean Energy Council’s wind endorsement scheme, and

(i)  if the land contains a State or local heritage item or is in a heritage conservation area—the system is not visible from any road at the point where the road adjoins the property boundary concerned.

(2) Wind monitoring towers The installation of a wind monitoring tower used in connection with investigating or determining the feasibility of a small wind turbine system that has a generating capacity of no more than 1 MW is exempt development on any land if—

(a)  it complies with section 2.20 (other than section 2.20(2)(h)), and

(b)  the tower is located clear of any works, including power lines, of any relevant network operator (within the meaning of the Electricity Supply Act 1995) and complies with any requirements of the network operator that relate to clearance from those works, and

(c)  the tower does not penetrate any obstacle limitation surface shown on any relevant Obstacle Limitation Surface Plan that has been prepared by the operator of an aerodrome or airport operating within 2 kilometres of the proposed development and reported to the Civil Aviation Safety Authority, and

(d)  the tower is installed in accordance with the manufacturer’s specifications or by a person who is endorsed for the design and installation of small wind turbine systems under the Clean Energy Council’s wind endorsement scheme, and

(e)  if the land contains a State or local heritage item or is in a heritage conservation area—the tower is not visible from any road at the point where the road adjoins the property boundary concerned, and

(f)  in the case of land in a prescribed residential zone—

(i)  there is no other wind monitoring tower installed on the lot concerned, and

(ii)  the height of the tower from ground level (existing) to the topmost point of the tower is no more than 18m, and

(iii)  the tower is installed no less than 18m from any dwelling that is not owned or occupied by the owner of the tower, and

(g)  in the case of land in a prescribed rural, industrial or special use zone—

(i)  there are no more than 2 other wind monitoring towers installed on the lot concerned, and

(ii)  the height of the tower from ground level (existing) to the topmost point of the tower is no more than 35m, and

(iii)  the tower is installed no less than 35m from any dwelling that is not owned or occupied by the owner of the tower, and

(h)  in the case of land in any land use zone (other than a land use zone referred to in paragraph (f) or (g))—

(i)  there is no more than one other wind monitoring tower installed on the lot concerned, and

(ii)  the height of the tower from ground level (existing) to the topmost point of the tower is no more than 26m, and

(iii)  the tower is installed no less than 26m from any dwelling that is not owned or occupied by the owner of the tower, and

(i)  in the case of a development application in relation to the small wind turbine system to be used in connection with the tower that is refused or withdrawn—the tower is demolished within 6 months after the decision to refuse or withdraw the application.

(3)  Development for the purpose of a wind monitoring tower used in connection with the investigation or determination of the feasibility of a wind farm that has a generating capacity of more than 1 MW is exempt development if—

(a)  it complies with section 2.20, and

(b)  the tower—

(i)  is erected in accordance with the manufacturer’s specifications, and

(ii)  has a height of not more than 110m, and

(iii)  is removed within 60 months after its erection is completed, and

(c)  the site of the tower—

(i)  is enclosed by a fence that prevents unauthorised entry to the site, and

(ii)  is not within 100m of any public road, and

(iii)  is not within 1km of any other wind monitoring tower or a school, and

(iv)  is not within 1km of any dwelling except with the prior written permission of the owner of the dwelling, and

(v)  is not within 500m of any State heritage item, and

(vi)  does not affect a significant view to or from any such item that is identified in a conservation management plan (as defined by clause 3 of the Heritage Regulation 2005) for the item, and

(d)  before the tower is erected, the Civil Aviation Safety Authority (established under the Civil Aviation Act 1988 of the Commonwealth) is notified in writing of—

(i)  the tower’s “as constructed” longitude and latitude co-ordinates, and

(ii)  the ground level elevation at the base of the tower, referenced to the Australian Height Datum, and

(iii)  the height from ground level (existing) to the topmost point of the tower (including all attachments), and

(iv)  the elevation to the top of the tower (including all attachments), referenced to the Australian Height Datum, and

(v)  the date on which it is proposed to remove the tower.

(4) Solar energy systems Development for the purpose of a solar energy system is exempt development if—

(a)  it complies with section 2.20 (other than section 2.20(2)(f)), and

(b)  in the case of development for the purposes of a photovoltaic electricity generating system—the system is installed in accordance with the manufacturer’s specifications or by a person who is accredited by the Clean Energy Council for the installation of photovoltaic electricity generating systems, and

(c)  in the case of development for the purpose of any solar energy system other than a photovoltaic electricity generating system—the system is installed in accordance with the manufacturer’s specifications, and

(d)  the system does not involve mirrors or lenses to reflect or concentrate sunlight, and

(e)  in the case of a system that is ground-mounted—

(i)  the total area occupied by the system (together with any other ground-mounted solar energy system on the lot concerned) does not exceed 150m², and

(ii)  the system has a height of not more than 5m above ground level (existing), and

(iii)  the system is installed no less than 3m from any adjoining property boundary, and

(iv)  if the land contains a State or local heritage item or is in a heritage conservation area—the system is not visible from any road at the point where the road adjoins the property boundary concerned, and

(v)  if the solar energy system is a photovoltaic electricity generating system having the capacity to generate 10kW or more—the system is installed no less than 10m from any dwelling that is not owned or occupied by the owner of the system, and

(f)  in the case of a system that is not ground-mounted—

(i)  the development does not reduce the structural integrity of, or involve structural alterations to, any building to which the system is attached, and

Note—

The term building is defined in the Environmental Planning and Assessment Act 1979 as including any structure.

(ii)  if the land is in a prescribed residential zone and the system is attached to a wall or roof facing a primary road—the system does not protrude more than 0.5m from the wall or roof (as measured from the point of attachment), and

(iii)  if the land is in a prescribed residential zone and the system is not attached to a wall or roof facing a primary road—

(A)  the system does not protrude more than 1m from any building to which it is attached (as measured from the point of attachment), and

(B)  the system is installed no less than 1m from any adjoining property boundary if the system protrudes more than 0.5m from any building to which it is attached (as measured from the point of attachment), and

(iv)  if the land contains a State or local heritage item or is in a heritage conservation area—

(A)  the system is not attached to any wall or roof of a building facing a primary road, and

(B)  the system does not protrude more than 0.5m from any building to which it is attached (as measured from the point of attachment), and

(v)  the system does not protrude more than 1.5m from any building or structure to which it is attached (as measured from the point of attachment) if the land is in a land use zone other than a prescribed residential zone.

(5)  Development for the purposes of a small-scale battery system is exempt development if—

(a)  the installation of the system complies with section 2.20, and

(b)  the system complies with AS/NZS 5139:2019Electrical installations—Safety of battery systems for use with energy conversion equipment, and

(c)  the battery is approved by the Clean Energy Council, and

(d)  the system is installed by a person accredited by the Clean Energy Council for the installation of small-scale battery systems, and

(e)  the system is not capable of storing more than 20kWh of energy, and

(f)  the development does not result in the installation of more than 1 system, and

(g)  for land containing a heritage item or within a heritage conservation area—the system must be attached to the rear wall of an existing building.

s 2.41: Am 2022 (132), Sch 1[4]–[6].

2.42 Determination of development applications for solar or wind electricity generating works on certain land

(1)  This section applies to development in a regional city for the purposes of electricity generating works using a solar or wind energy source that is—

(a)  State significant development, or

(b)  regionally significant development.

(2)  Development consent must not be granted unless the consent authority is satisfied that the development—

(a)  is located to avoid significant conflict with existing or approved residential or commercial uses of land surrounding the development, and

(b)  is unlikely to have a significant adverse impact on the regional city’s—

(i)  capacity for growth, or

(ii)  scenic quality and landscape character.

(3)  In determining whether to grant development consent, the consent authority must consider measures proposed to be included in the development to avoid or mitigate conflicts referred to in subsection (2)(a) or adverse impacts referred to in subsection (2)(b).

(4)  In this section—

Regional Cities Map means the State Environmental Planning Policy (Infrastructure) 2007 Regional Cities Map.

regional city means an area of land identified as “subject land” on the Regional Cities Map.

Division 5 Electricity transmission or distribution

Subdivision 1 Electricity transmission or distribution networks

2.43 Definitions

In this Division—

distributor and transmission operator have the same meanings as in the Electricity Supply Act 1995.

electricity supply authority means a person or body 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, and

(c)  Rail Corporation New South Wales constituted under the Transport Administration Act 1988, and

(d)  Sydney Metro constituted under the Transport Administration Act 1988, and

(e)  the Water Administration Ministerial Corporation constituted under the Water Management Act 2000.

electricity transmission or distribution network includes the following components—

(a)  above or below ground electricity transmission or distribution lines (including related bridges, cables, conductors, conduits, poles, towers, trenches, tunnels, access structures, access tracks and ventilation structures) and telecommunication facilities that are related to the functioning of the network,

(b)  above or below ground electricity switching stations or electricity substations, feeder pillars or transformer housing, substation yards or substation buildings,

(c)  systems for electricity storage associated with a component specified in paragraphs (a) and (b).

safety risks means risks of electrocution, fire risks, risks relating to voltage rises or risks to the integrity of an electricity transmission or distribution network.

2.44 Development permitted without consent

(1)  Development for the purpose of an electricity transmission or distribution network may be carried out by or on behalf of an electricity supply authority or public authority without consent on any land. However, such development may be carried out without consent on land reserved under the National Parks and Wildlife Act 1974 only if the development—

(a)  is authorised by or under that Act, or

(b)  is, or is the subject of, an existing interest within the meaning of section 39 of that Act, or

(c)  is carried out on land to which that Act applies over which an easement has been granted and is not contrary to the terms or nature of the easement, or

(d)  is an electricity work to which section 53 of the Electricity Supply Act 1995 applies.

(2)  In this section, a reference to development for the purpose of an electricity transmission or distribution network includes a reference to development for any of the following purposes if the development is in connection with such a network—

(a)  construction works (whether or not in a heritage conservation area), including—

(i)  laying and installation of cables and cable pits, co-location of cabling and erection of ventilation and access structures, bridges and tunnel adits, and construction of a tunnel or conduit for an underground cable, and

(ii)  alteration, demolition or relocation of a local heritage item, and

(iii)  alteration or relocation of a State heritage item, and

(iv)  installation of overhead wires and associated component parts, including support structures, and

(v)  construction of access tunnels or access tracks,

(b)  emergency works or routine maintenance works,

Note—

See section 2.7(4) regarding emergency works and routine maintenance works on land to which clauses 10 and 11 of State Environmental Planning Policy (Coastal Management) 2018 apply.

(c)  environmental management works,

(d)  establishment of a new substation or an increase in the area of existing substation yards or the installation of equipment, plant or structures in existing substation yards or substation buildings,

(e)  above or below ground co-location of telecommunications cabling and associated structures,

(f)  an electricity generating unit to provide temporary support to the network, but only if—

(i)  the combined capacity of all units at the premises where the unit is located, or is intended to be located, does not exceed 5 megawatts, and

(ii)  none of the units is operated, or is intended to be operated, for more than 200 hours in any 12 month period.

2.45 Notification of certain electricity substation development that may be carried out without consent

(1)  This section applies to development (other than exempt development) that—

(a)  is carried out by or on behalf of an electricity supply authority or public authority, and

(b)  is for the purpose of a new or existing electricity substation of any voltage (including any associated yard, control building or building for housing plant), and

(c)  is not a project to which Part 3A of the Act applies or State significant infrastructure.

(2)  Before development to which this section applies is carried out, the electricity supply authority or public authority must—

(a)  give written notice of the intention to carry out the development to the council for the area in which the land is located (unless the authority is that council) and to the occupiers of adjoining land, and

(b)  take into consideration any response to the notice that is received within 21 days after the notice is given.

2.46 Exempt development

(1)  Development for any of the following purposes is exempt development if the development is in connection with an electricity transmission or distribution network and complies with section 2.20—

(a)  installation of cables in existing conduits if the installation involves no greater soil or vegetation disturbance than necessary,

(b)  maintenance of electricity lines or of poles (or associated structures) for electricity lines,

(c)  any of the following if the primary purpose of the development is not to increase the capacity of the network—

(i)  replacement or re-alignment of electricity lines for conveying electricity at a voltage of 66kV or less,

(ii)  installation or upgrading of electricity lines for conveying electricity at a voltage of 66kV or less that are above or below ground service lines connecting premises to the network,

(iii)  replacement of poles with similar sized poles, or of associated support structures, for electricity lines for conveying electricity at a voltage of 66kV or less,

(iv)  re-alignment of poles, or of associated support structures, for electricity lines for conveying electricity at a voltage of 66kV or less,

(d)  installation, maintenance or replacement of the following—

(i)  existing plant or equipment in an existing fenced area or in an existing building (including pillars, fuses, control points, switches, regulators and protection equipment, but not including outdoor installation of equipment designed to operate (or convey electricity) at a voltage of more than 66kV),

(ii)  street lighting if the lighting minimises light spill and artificial sky glow in accordance with the Lighting for Roads and Public Spaces Standard,

(iii)  electricity metering,

(iv)  electrical conductors on existing structures if the primary purpose of the development is not to increase the capacity of the network,

(e)  maintenance of existing access tracks in easements or rights of way, or on land subject to section 53 of the Electricity Supply Act 1995, if it is required to facilitate the maintenance of electricity lines,

(f)  maintenance or replacement of pole substations, if—

(i)  the primary purpose of the development is not to increase the capacity of the network, and

(ii)  in the case of replacement of materials, the replacement materials are similar to the materials being replaced and the replacement does not involve any structural alterations,

(g)  demolition and removal of electricity works if—

(i)  the demolition is carried out in accordance with AS 2601—2001, Demolition of structures, and

(ii)  the development is not associated with substations containing equipment designed to operate (or convey electricity) at a voltage of more than 66kV, and

(iii)  the development will not be carried out on sites where soil is likely to be contaminated,

(h)  emergency works to maintain or restore a supply of electricity,

(i)  construction, maintenance or realignment of security fencing with a height of not more than 3.2m above ground level (existing),

(j)  vegetation management that is in accordance with a tree management plan established under clause 37 of the Electricity Supply (Safety and Network Management) Regulation 2014,

(k)  vegetation management that is exempted under clauses 24 and 35(4) of Schedule 5A to the Local Land Services Act 2013,

(l)  vegetation management that is carried out on category 1-exempt land (within the meaning of section 60D of the Local Land Services Act 2013),

(m)  environmental management works in an existing fenced area or in an existing building.

(2)  Section 2.20(2)(i) does not apply in relation to development carried out under subsection (1)(j), (k) or (l).

(3)  To be exempt development, the development specified in subsection (1)(j), (k) and (l) must be carried out in a manner that minimises the risk of soil erosion.

Subdivision 2 Development likely to affect an electricity transmission or distribution network

2.47 Excavation—corridors and transmission circuits

(1)  This section applies to a development application, or an application for modification of a consent, for development that involves the following—

(a)  the penetration of ground to a depth of at least 3m below ground level (existing) on land that is within 10m, measured radially, of the centreline of the following electricity supply corridors, or parts of those corridors—

(i)  the part of the Picnic Point to Haymarket corridor, as approved by the Minister on 1 February 2002, that runs between Sydney Park and Haymarket,

(ii)  the Haymarket to Surry Hills corridor, as approved by the Minister on 21 December 2001,

(iii)  the City West Cable Tunnel corridor, as approved by the Minister on 21 February 2007,

(b)  the penetration of ground to a depth of at least 0.5m below ground level (existing) on land that is within 15m, measured radially, of the centreline of the Potts Hill to Alexandria underground transmission cable circuit, as approved by the Minister on 14 May 2020.

(2)  Before determining an application to which this section applies, the consent authority must—

(a)  give written notice of the application to the electricity supply authority for the area in which the development is to be carried out, and

(b)  take into consideration any response to the notice that is received within 21 days after the notice is given, and

(c)  be satisfied that any safety risks associated with the development or modification to which the application relates have been identified, and

(d)  take those risks into consideration.

2.48 Determination of development applications—other development

(1)  This section applies to a development application (or an application for modification of a consent) for development comprising or involving any of the following—

(a)  the penetration of ground within 2m of an underground electricity power line or an electricity distribution pole or within 10m of any part of an electricity tower,

(b)  development carried out—

(i)  within or immediately adjacent to an easement for electricity purposes (whether or not the electricity infrastructure exists), or

(ii)  immediately adjacent to an electricity substation, or

(iii)  within 5m of an exposed overhead electricity power line,

(c)  installation of a swimming pool any part of which is—

(i)  within 30m of a structure supporting an overhead electricity transmission line, measured horizontally from the top of the pool to the bottom of the structure at ground level, or

(ii)  within 5m of an overhead electricity power line, measured vertically upwards from the top of the pool,

(d)  development involving or requiring the placement of power lines underground, unless an agreement with respect to the placement underground of power lines is in force between the electricity supply authority and the council for the land concerned.

(2)  Before determining a development application (or an application for modification of a consent) for development to which this section applies, the consent authority must—

(a)  give written notice to the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks, and

(b)  take into consideration any response to the notice that is received within 21 days after the notice is given.

Division 6 Emergency services facilities and bush fire hazard reduction

2.49 Definitions

In this Division—

bush fire hazard reduction work has the same meaning as in the Rural Fires Act 1997.

bush fire management plan has the same meaning as in the Rural Fires Act 1997.

designated fire trail has the same meaning as in the Rural Fires Act 1997.

emergency services facility means a building or place (including a helipad) used in connection with the provision of services by an emergency services organisation, including a police station and related training facilities.

Fire Trail Standards means the Fire Trail Standards under section 62K of the Rural Fires Act 1997.

police station means a building or place that is used in connection with the provision of police services to the public by the NSW Police Force and may include custodial facilities or premises used for a local area command function.

prescribed zone means any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  RU1 Primary Production,

(b)  RU2 Rural Landscape,

(c)  RU3 Forestry,

(d)  RU4 Primary Production Small Lots,

(e)  RU5 Village,

(f)  B1 Neighbourhood Centre,

(g)  B2 Local Centre,

(h)  B3 Commercial Core,

(i)  B4 Mixed Use,

(j)  B5 Business Development,

(k)  B6 Enterprise Corridor,

(l)  B7 Business Park,

(m)  B8 Metropolitan Centre,

(n)  IN1 General Industrial,

(o)  IN 2 Light Industrial,

(p)  IN3 Heavy Industrial,

(q)  IN4 Working Waterfront,

(r)  SP1 Special Activities,

(s)  SP2 Infrastructure.

2.50 Division does not apply to shooting ranges

This Division does not apply to an emergency services facility that is a shooting range within the meaning of Division 18A.

Note—

Development for the purposes of a shooting range is addressed in Division 18A.

2.51 Development permitted with consent

(1)  Development for the purpose of an emergency services facility may be carried out with consent in a prescribed zone by or on behalf of the NSW Rural Fire Service or an emergency services organisation that is not a public authority.

(2)  Development for the purpose of an emergency services facility may be carried out with consent by or on behalf of a public authority (other than the NSW Rural Fire Service) on any land.

(3)  Development to which subsection (2) applies may only be carried out on land reserved under the National Parks and Wildlife Act 1974 if it is authorised by or under that Act.

2.52 Development permitted without consent

(1)  Development for the purpose of an emergency services facility may be carried out by or on behalf of a public authority (other than the NSW Rural Fire Service) without consent in a prescribed zone.

(2)  Development for the purpose of an ambulance facility may be carried out by or on behalf of a public authority without consent on any land if the facility is a single storey building that provides parking for no more than 2 ambulances.

(3)  Development for any of the following purposes may be carried out by or on behalf of an emergency services organisation without consent on any land—

(a)  the replacement or alteration of, or an addition to, an existing emergency services facility,

(b)  the restoration of an emergency services facility due to damage,

(c)  the demolition of an emergency services facility.

(4)  Development to which this section applies may only be carried out on land reserved under the National Parks and Wildlife Act 1974 if it is authorised by or under that Act.

(5)  This section does not permit the erection of any building that exceeds 12m in height or that is located closer than 5m to any property boundary (or an addition to a building resulting in the building exceeding that height or being closer than that distance to any property boundary).

(6)  Despite subsection (5), development for the following purposes may result in a building being located closer than 5 metres to a property boundary—

(a)  an emergency services facility carried out by or on behalf of Fire and Rescue NSW,

(b)  an ambulance facility carried out by or on behalf of the Ambulance Service of NSW.

(7)  Before development to which this section applies is carried out, the proponent of the development must—

(a)  give written notice of the intention to carry out the development to the council for the area in which the land is located (unless the proponent is that council) and to the occupiers of adjoining land, and

(b)  take into consideration any response to the notice that is received within 21 days after the notice is given.

(8)  Development for the purpose of bush fire hazard reduction work may be carried out by any person without consent on any land that is not within the coastal wetlands and littoral rainforests area if the development is consistent with the applicable bush fire management plan or the direction or agreement relating to the applicable designated fire trail.

(9)  In this section, coastal wetlands and littoral rainforests area has the same meaning as in section 6 of the Coastal Management Act 2016, but does not include land identified as “proximity area for coastal wetlands” or “proximity area for littoral rainforest” on the Coastal Wetlands and Littoral Rainforests Area Map (within the meaning of State Environmental Planning Policy (Coastal Management) 2018).

2.53 Exempt development

(1)  Development for any of the following purposes is exempt development if the development complies with section 2.20 and is consistent with the applicable bush fire management plan or the direction or agreement relating to the applicable designated fire trail—

(a)  maintaining fire trails, or installing or maintaining gates and associated structures on such trails, if the development is consistent with the Fire Trail Standards and does not result in any change in the alignment of fire trails,

(b)  maintaining asset protection zones or installing or maintaining gates and associated structures on such zones, if the development is consistent with the NSW Rural Fire Service’s publication Standards for Asset Protection Zones published on the website of the NSW Rural Fire Service and does not result in any change in the alignment of asset protection zones.

(2)  Section 2.20(2)(i) does not apply to the development referred to in subsection (1) if the vegetation concerned is pruned or removed only so far as generally corresponds to the existing alignment of the formed fire trail or asset protection zone.

(3)  Development for any of the following purposes is exempt development if the development complies with section 2.20—

(a)  a hose drying rack, if the height of the rack does not exceed 1.5 metres,

(b)  a standby power generator for use by the NSW Rural Fire Service, if the generator is insulated to ensure that noise levels will not exceed 35dB(A) from outside the generator housing,

(c)  a toilet facility to be used in connection with a fire station, if the facility comprises a standard flushing toilet connected to a public sewer, or an on-site effluent disposal system or temporary chemical closet approved under the Local Government Act 1993,

(d)  new or replacement paving, if any surface water run-off is directed to a stormwater management system, the work involves no greater soil or vegetation disturbance than necessary and does not involve a new connection with a public road.

(4)  This section does not apply to land within the coastal wetlands and littoral rainforests area (within the meaning of the Coastal Management Act 2016).

2.54 Development on certain coastal wetlands land

(1)  This section applies to land identified as “coastal wetlands” on the Coastal Wetlands and Littoral Rainforests Area Map within the meaning of State Environmental Planning Policy (Coastal Management) 2018.

(2)  Development for the purpose of bush fire hazard reduction work (other than establishing or maintaining a fire trail) may be carried out by any person without consent on land to which this section applies if—

(a)  the land is within 20 metres of a dwelling house, secondary dwelling, dual occupancy, multi dwelling housing, residential flat building, hospital, centre-based child care facility, attached dwelling, boarding house, group home, hostel, semi-detached dwelling, seniors housing, residential accommodation, residential aged care facility or retirement village within the meaning of the Retirement Villages Act 1999, that was in existence immediately before the commencement of this section, and

(b)  the bush fire hazard reduction work does not involve the use of fire, and

(c)  the bush fire hazard reduction work is carried out under section 66, 70, 73 or 74E of the Rural Fires Act 1997, and

(d)  the bush fire hazard reduction work is consistent with the standards relating to bush fire hazard reduction set out in the Department’s and NSW Rural Fire Service’s joint publication Standards for Bush Fire Hazard Reduction Works in SEPP 14—Coastal Wetlands published on the website of the Department.

(3)  Development for the purpose of maintaining a fire trail may be carried out by a public authority without consent on land to which this section applies if—

(a)  the development is consistent with the applicable bush fire management plan or any direction or agreement relating to the applicable fire trail, and

(b)  the development complies with the Fire Trail Standards, and

(c)  the development does not involve the use of fire, the widening of a fire trail, any clearing of vegetation (other than of regrowth on a fire trail) or any excavation.

Division 7 Flood mitigation work

2.55 Definition

In this Division—

flood mitigation work has the same meaning as it has in the Standard Instrument.

Note—

The Standard Instrument defines flood mitigation work as follows—

flood mitigation work means work designed and constructed for the express purpose of mitigating flood impacts. It involves changing the characteristics of flood behaviour to alter the level, location, volume, speed or timing of flood waters to mitigate flood impacts. Types of works may include excavation, construction or enlargement of any fill, wall or levee that will alter riverine flood behaviour, local overland flooding, or tidal action so as to mitigate flood impacts.

Note—

Examples of flood mitigation work include levees, barrages, causeways, cuttings, embankments, floodgates and detention basins.

2.56 Development permitted without consent

(1)  Development for the purpose of flood mitigation work may be carried out by or on behalf of a public authority without consent on any land.

(2)  A reference in this section to development for the purpose of flood mitigation work includes a reference to development for any of the following purposes if the development is in connection with flood mitigation work—

(a)  construction works,

(b)  routine maintenance works,

(c)  environmental management works.

Division 8 Forestry

Note—

This Division does not apply in relation to forestry to which a forest agreement or integrated forestry operations approval under the Forestry Act 2012 applies—see section 69W of that Act. See also the Native Vegetation Act 2003 in relation to the clearing of native vegetation.

2.57 Definition

In this Division—

forestry has the same meaning as it has in the Standard Instrument.

2.58 Development permitted without consent

(1)  Development for the purpose of forestry may be carried out by or on behalf of a public authority without consent on land in Zone RU3 Forestry or an equivalent land use zone.

(2)  A reference in this section to development for the purpose of forestry includes a reference to development for any of the following purposes—

(a)  operation of portable timber mills,

(b)  harvesting of products of cultural value from trees, shrubs and other vegetation,

(c)  forest management activities relating to matters such as Aboriginal cultural heritage, forestry research and forest conservation,

(d)  environmental management works (such as weed and pest control),

(e)  facilities and works associated with forestry (such as landscaping, recycled water and biosolids reuse schemes, maintenance depots and bushfire lookouts),

(f)  outdoor recreational facilities and related amenities for visitors to forests (such as viewing platforms, toilet facilities and garbage collection areas),

(g)  construction and maintenance of roads, tracks and fire trails to enable or assist anything mentioned in paragraphs (a)–(f).

Division 9

Division 10 Health services facilities

2.59 Definitions

In this Division—

health services facility has the same meaning as in the Standard Instrument.

prescribed zone means any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  RU4 Primary Production Small Lots,

(b)  RU5 Village,

(c)  RU6 Transition,

(d)  R1 General Residential,

(e)  R2 Low Density Residential,

(f)  R3 Medium Density Residential,

(g)  R4 High Density Residential,

(h)  R5 Large Lot Residential,

(i)  B1 Neighbourhood Centre,

(j)  B2 Local Centre,

(k)  B3 Commercial Core,

(l)  B4 Mixed Use,

(m)  B5 Business Development,

(n)  B6 Enterprise Corridor,

(o)  B7 Business Park,

(p)  B8 Metropolitan Centre,

(q)  SP1 Special Activities,

(r)  SP2 Infrastructure.

2.60 Development permitted with consent

(1)  Development for the purpose of health services facilities may be carried out by any person with consent on land in a prescribed zone.

(2)  Development for any of the following purposes may be carried out by or on behalf of a public authority with consent on State land if the development is carried out within the boundaries of an existing health services facility—

(a)  health research (or development) industries, including medical research (or development) industries,

(b)  high technology industry for an industrial activity that involves biological, pharmaceutical, medical or paramedical systems, goods or components,

(c)  any of the following premises that service patients or staff of, or visitors to, the health services facility (or staff of, or visitors to, other premises within the boundaries of the facility)—

(i)  centre-based child care facilities,

(ii)  commercial premises,

(iii)  community facilities,

(iv)  information and education facilities,

(v)  recreation areas, recreation facilities (indoor) or recreation facilities (outdoor),

(vi)  residential accommodation,

(d)  a building or place used for the training or education of health and other professionals.

(3)  Consent must not be granted for development of a kind referred to in subsection (2)(c) (other than development for the purposes of a centre-based child care facility) unless the consent authority is satisfied that the Secretary has certified in a site compatibility certificate that, in the Secretary’s opinion, the development is compatible with the surrounding land uses.

(4)  Nothing in this section—

(a)  prevents a consent authority from—

(i)  granting consent for development on a site by reference to site and design features that are more stringent than those identified in a site compatibility certificate for the same site, or

(ii)  refusing to grant consent for development by reference to the consent authority’s own assessment of the compatibility of the development with the surrounding land uses, or

(b)  otherwise limits the matters to which a consent authority may have regard in determining a development application for development of a kind referred to in subsection (2).

2.61 Development permitted without consent

(1)  Any of the following development may be carried out by or on behalf of a public authority without consent on any land if the development is carried out within the boundaries of an existing health services facility—

(a)  the erection or alteration of, or addition to, a building that is a health services facility,

(b)  development for the purposes of restoring or replacing accommodation or administration facilities,

(c)  demolition of buildings carried out for the purposes of a health services facility,

(d)  development for the purposes of patient transport facilities, including helipads and ambulance facilities,

(e)  development for the purposes of car parks to service patients or staff of, or visitors to, the health services facility (or to service staff of, or visitors to, other premises within the boundaries of the facility).

(2)  This section does not permit the erection of any building that exceeds 15 metres in height or is located closer than 5 metres to any property boundary (or an addition to a building resulting in the building exceeding that height or being closer than that distance to any property boundary).

(3)  Despite subsection (2), development may result in a building being located up to 1 metre from a property boundary if—

(a)  the building does not exceed 1 storey or 5 metres in height, and

(b)  the land on the other side of the property boundary is not in—

(i)  a residential zone or

(ii)  Zone E4 Environmental Living or a land use zone that is equivalent to Zone E4.

2.62 Notification of carrying out of certain development without consent

(1)  This section applies to development carried out by or on behalf of a public authority under section 2.61(1) (other than section 2.61(1)(b) or (c)).

(2)  Before development to which this section applies is carried out, the person carrying out the development or the public authority concerned must—

(a)  give written notice of the intention to carry out the development to each of the following—

(i)  the council for the area in which the relevant land is located (unless the public authority is the council),

(ii)  the occupiers of any adjoining land, and

(b)  take into consideration any response to the notice that is received within 21 days after the notice is given.

(3)  In this section, relevant land means the land on which the development is proposed to be carried out.

2.63 Exempt development

(1)  Any of the following development is exempt development if it is carried out within the boundaries of an existing health services facility and complies with section 2.20—

(a)  development for the purposes of roads and cycleways,

(b)  development for the purposes of information boards and other information facilities (except for visitors’ centres),

(c)  development for the purposes of lighting, if light spill and artificial sky glow is minimised in accordance with the Lighting for Roads and Public Spaces Standard,

(d)  development for the purposes of landscaping, including landscape structures or features (such as art work) and irrigation systems,

(e)  development for the purposes of maintenance depots used solely for the maintenance of a health services facility (or of any other premises within the boundaries of a health services facility),

(f)  environmental management works,

(g)  the removal and replacement, or pruning, of a tree if—

(i)  the tree has been assessed by a Level 5 qualified arborist as posing a risk to human health or safety, or a risk of damage to infrastructure, and

(ii)  in the case of removal and replacement of a tree, the replacement tree is planted within the boundaries of the health services facility and is capable of achieving a mature height of 3 metres or more,

(h)  development for the purposes of a building site shed if—

(i)  the shed is not used for residential purposes, and

(ii)  any plumbing fixtures are connected to an approved waste water treatment device or an approved connection to the sewer, and

(iii)  the shed is removed immediately after the completion of the works for which the shed was required, and

(iv)  the shed is free-standing, prefabricated and constructed of non-reflective materials.

(2)  In this section, Level 5 qualified arborist means an arborist with a minimum AQF Level 5 in Arboriculture under the Australian Qualifications Framework (within the meaning of section 7 of the Higher Education Act 2001).

2.63A Exempt development—COVID-19 pandemic response

(1)  The following development is exempt development—

(a)  a change of use of a building or place to a health services facility,

(b)  a change of use of a health services facility to another health services facility,

(c)  the construction or installation of a temporary structure, or a temporary alteration or addition to a building or work, necessary to carry out a change of use referred to in paragraph (a) or (b).

(2)  The development must be carried out by or on behalf of—

(a)  the Health Administration Corporation, or

(b)  for land owned by another public authority—the owner of the land.

(3)  If the development is not carried out within the boundaries of an existing health services facility owned by a local health district or a statutory health corporation, the development must not be carried out without the written consent of the owner of the land.

(4)  Construction or demolition associated with the development—

(a)  must only be carried out between 7am and 5pm from Monday to Saturday, and

(b)  must not be carried out at any time on a Sunday or public holiday.

(5)  Development carried out under this section on land outside the boundaries of an existing health services facility—

(a)  is taken to be a temporary use of land, and

(b)  does not result in the creation of an existing health services facility.

(6)  This section is repealed 1 year after its commencement.

(7)  A word used in this section has the same meaning as in the Health Services Act 1997 unless otherwise defined in this Policy.

s 2.63A: Ins 2022 (132), Sch 1[7].

2.64 Complying development

(1)  Development for any of the following purposes is complying development if it is carried out within the boundaries of an existing health services facility, and complies with the requirements of this section and section 2.22—

(a)  a health services facility,

(b)  a building or place used for the training or education of health and other professionals,

(c)  commercial premises, providing goods or services to staff or patients of, or visitors to, a health services facility (or to staff of, or visitors to, other premises within the boundaries of a health services facility),

(d)  any premises to service patients or staff of, or visitors to, a health services facility (or to service staff of, or visitors to, other premises within the boundaries of a health services facility) that consist of an administration building or a car park,

(e)  demolition of buildings,

(f)  the removal or pruning of a tree or other vegetation if —

(i)  the tree is not listed on a register of significant trees kept by the council, and

(ii)  the tree or vegetation is within 3 metres of a building within the boundaries of the health services facility, and

(iii)  the tree or vegetation has a height of less than 8 metres, and

(iv)  in the case of removal of a tree—a replacement tree capable of achieving a mature height of 3 metres or more is planted within the boundaries of the health services facility.

(2)  Development specified in subsection (1)(f) is not required to satisfy section 2.22(2)(g) to be complying development.

(3)  This section does not permit the erection of any building that exceeds 12m in height or is located closer than 5m to any property boundary (or an addition to a building resulting in the building exceeding that height or being closer than that distance to any property boundary).

(4)  The footprint of any building demolished under this section must not exceed 250m².

(5)  Demolition of a building under this section is not complying development if the building is within a heritage conservation area.

Note—

Certain development on bush fire prone land (such as a hospital) is not complying development (see section 100B of the Rural Fires Act 1997).

2.65 Complying development—additional condition

(1)  A complying development certificate for development specified in section 2.64 is subject to the condition that work may be carried out outside the standard hours for construction specified in section 2.23(6) if—

(a)  the work only generates noise that is—

(i)  no louder than 5 dB(A) above the rating background level at any adjoining residence in accordance with the Interim Construction Noise Guideline (ISBN 978 1 74232 217 9) published by the Department of Environment and Climate Change NSW in July 2009, and

(ii)  no louder than the noise management levels specified in Table 3 of that guideline at other sensitive receivers, or

(b)  in an emergency, to avoid the loss of lives or property or to prevent environmental harm.

(2)  This condition is in addition to the conditions set out in section 2.23.

Division 10A Operational land

2.66 Definition

In this Division—

operational land has the same meaning as in the Local Government Act 1993.

2.67 Development permitted without consent

Development for any purpose referred to in section 2.73(3) may be carried out without consent on operational land by or on behalf of a council.

2.68 Exempt development

(1)  Development for any purpose referred to in section 2.74(1) is exempt development if carried out on operational land by or on behalf of a council.

(2)  Development is exempt development under this section only if the development—

(a)  complies with section 2.20, and

(b)  involves no greater disturbance of native vegetation than necessary, and

(c)  does not result in an increase in stormwater run-off or erosion.

Division 11 Public authority precincts

2.69 Land to which Division applies

This Division applies to land identified on the State Significant Development Sites Map, within the meaning of State Environmental Planning Policy (State and Regional Development) 2011, as being within any of the following sites—

(a)  Barangaroo Site,

(b)  Darling Harbour Site,

(c)  Sydney Olympic Park Site,

(d)  The Rocks Site.

2.70 Exempt development

(1)  Development for any of the following purposes is exempt development if it is carried out by or on behalf of a public authority on land to which this Division applies—

(a)  roads, cycleways, pedestrian bridges, at grade car parks, ticketing facilities and viewing platforms,

(b)  recreation facilities (outdoor), other than grandstands,

(c)  amenity facilities, including toilets, change rooms and food preparation and related facilities for persons using public spaces within the site,

(d)  information boards and other information facilities (except visitor centres),

(e)  lighting if the lighting minimises light spill and artificial sky glow in accordance with AS/NZS 1158 Set:2010, Lighting for roads and public spaces Set,

(f)  maintenance depots used solely for the maintenance of the land or structures within the site,

(g)  environmental management works,

(h)  landscaping, including landscape structures or features (such as art work) and irrigation systems (whether or not they use recycled water),

(i)  Christmas trees that comply with subsection (2),

(j)  demolition of buildings (unless the building is a State or local heritage item or is within a heritage conservation area) so long as the footprint of the building covers an area no greater than 250 square metres.

(2)  The erection, installation or display of Christmas trees is subject to the following requirements—

(a)  subject to paragraph (b), the trees must be no more than 4.5m in height, except that one Christmas tree of no more than 20m in height may be erected on each site to which this Division applies,

(b)  the trees must be structurally stable with adequate footings or attachments,

(c)  the trees must not be displayed before 15 November in any year and must not be displayed for more than 8 continuous weeks,

(d)  the erection or installation of a Christmas tree may start 1 week before the display starts and must be removed during the week following the 8 week display period.

Division 11A Certain development at the Sydney Cricket Ground

2.71 Exempt development

Development for any of the following purposes is exempt development if it is carried out on land identified in Schedule 4A, Part 1 of the Sporting Venues Authorities Act 2008—

(a)  landscaping (including the installation, maintenance and upgrading of playground or recreational equipment, park furniture, gardens, paving and the like),

(b)  installation, maintenance and upgrading of bus shelters, pedestrian pathways, cycleways, cycle storage racks, visitor information booths, kiosks, street furniture, access ramps for people, shade shelters, awnings, fences, gates, flag poles, public art, catering outlets, bars and restaurants,

(c)  signage to promote events or identify buildings if the signage—

(i)  is attached to an existing building or an existing pole, and

(ii)  does not project beyond the parapet or eaves of the building to which it is attached, and

(iii)  does not cover any window, door or architectural feature, and

(iv)  is securely fixed to the existing building or existing pole, and

(v)  does not cover any mechanical ventilation inlets or outlets located on any building on which it is carried out, and

(vi)  does not obstruct or interfere with any traffic sign, and

(vii)  complies with AS 4282:1997, Control of the obtrusive effects of outdoor lighting,

(d)  installation, maintenance and upgrading of security or emergency services equipment (including fire detection systems, pump houses, fire water tanks, security cameras, lighting, emergency security fencing and barriers to prevent unauthorised access or to ensure public safety) and the internal or external modification of buildings for building security and fire safety reasons,

(e)  installation, maintenance and upgrading of mobile communication facilities, road and traffic management works, solar panels and associated structures and lighting,

(f)  minor alterations and additions to existing facilities (including grandstand seating, lights, light towers, lifts, air conditioning systems, toilets, plant and equipment).

Division 12 Parks and other public reserves

2.72 Definitions

In this Division—

Crown land manager has the same meaning as in the Crown Land Management Act 2016.

Crown managed land has the same meaning as in the Crown Land Management Act 2016.

Ministerial Corporation has the same meaning as in the Crown Land Management Act 2016.

public reserve has the same meaning as it has in the Local Government Act 1993, but does not include a Crown reserve that is dedicated or reserved for a public cemetery.

Secretary has the same meaning as in the Crown Land Management Act 2016.

2.73 Development permitted without consent

(1)  Development for any purpose may be carried out without consent—

(a)  on land reserved under the National Parks and Wildlife Act 1974, or acquired under Part 11 of that Act, if the development is for a use authorised under that Act, or

(b)  on land declared under the Marine Estate Management Act 2014 to be a marine park or an aquatic reserve if the development is for a use authorised under that Act, or

(2)  Development for any purpose may be carried out without consent—

(a)  on Trust lands within the meaning of the Centennial Park and Moore Park Trust Act 1983, by or on behalf of the Centennial Park and Moore Park Trust, or

(b)  on trust lands within the meaning of the Parramatta Park Trust Act 2001, by or on behalf of the Parramatta Park Trust, or

(c)  on Crown managed land, by or on behalf of—

(i)  the Secretary, or

(ii)  a Crown land manager of the land (or an administrator of the manager), or

(iii)  the Ministerial Corporation, or

(iv)  the Minister administering the Crown Land Management Act 2016,

if the development is for the purposes of implementing a plan of management adopted for the land under the Act referred to above in relation to the land or in accordance with the Local Government Act 1993 in relation to Crown managed land managed by a council.

(3)  Any of the following development may be carried out by or on behalf of a council without consent on a public reserve under the control of or vested in the council—

(a)  development for any of the following purposes—

(i)  roads, pedestrian pathways, cycleways, single storey car parks, ticketing facilities, viewing platforms and pedestrian bridges,

(ii)  recreation areas and recreation facilities (outdoor), but not including grandstands,

(iii)  visitor information centres, information boards and other information facilities,

(iv)  lighting, if light spill and artificial sky glow is minimised in accordance with the Lighting for Roads and Public Spaces Standard,

(v)  landscaping, including landscape structures or features (such as art work) and irrigation systems,

(vi)  amenities for people using the reserve, including toilets and change rooms,

(vii)  food preparation and related facilities for people using the reserve,

(viii)  maintenance depots,

(ix)  portable lifeguard towers,

(b)  environmental management works,

(c)  demolition of buildings (other than any building that is, or is part of, a State or local heritage item or is within a heritage conservation area).

Note—

The term building is defined in the Environmental Planning and Assessment Act 1979 as including any structure.

2.74 Exempt development

(1)  Development for any of the following purposes that is carried out in the prescribed circumstances is exempt development—

(a)  construction or maintenance of—

(i)  walking tracks, raised walking paths (including boardwalks), ramps, stairways or gates, or

(ii)  bicycle-related storage facilities, including bicycle racks and other bicycle parking facilities (except for bicycle paths), or

(iii)  handrail barriers or vehicle barriers, or

(iv)  ticketing machines or park entry booths, or

(v)  viewing platforms with an area not exceeding 100m², or

(vi)  sporting facilities, including goal posts, sight screens and fences, if the visual impact of the development on surrounding land uses is minimal, or

(vii)  play equipment if adequate safety measures (including soft landing surfaces) are provided and, in the case of the construction of such equipment, so long as the equipment is situated at least 1.2m away from any fence, or

(viii)  seats, picnic tables, barbecues, bins (including frames and screening), shelters or shade structures, or

(ix)  portable lifeguard towers if the footprint of the tower covers an area no greater than 20 square metres,

(b)  routine maintenance of playing fields and other infrastructure, including landscaping,

(c)  routine maintenance of roads that provide access to or within those playing fields, including landscaping.

(2)  Development is carried out in the prescribed circumstances if the development is carried out—

(a)  on land referred to in section 2.73(1) by or on behalf of a public authority, or

(b)  on land referred to in section 2.73(2)(a) or (b) by or on behalf of the Centennial Park and Moore Park Trust or the Parramatta Trust, as the case may be, or

(c)  in connection with a public reserve (other than Crown managed land) by or on behalf of a public authority, or

(d)  on Crown managed land, by or on behalf of—

(i)  the Secretary, or

(ii)  a Crown land manager of the land (or an administrator of the manager), or

(iii)  the Ministerial Corporation, or

(iv)  a council having control of the land under section 48 of the Local Government Act 1993, or

(v)  the Minister administering the Crown Land Management Act 2016.

(3)  Development is exempt development under this section only if the development—

(a)  complies with section 2.20, and

(b)  involves no greater disturbance of native vegetation than necessary, and

(c)  does not result in an increase in stormwater run-off or erosion.

Division 12A Pipelines and pipeline corridors

Subdivision 1 Pipelines

2.75 Development permitted without consent

(1)  Development for the purpose of a pipeline may be carried out by any person without consent on any land if the pipeline is subject to a licence under the Pipelines Act 1967 or a licence or authorisation under the Gas Supply Act 1996.

(2)  Development for the purpose of a gas pipeline may be carried out by or on behalf of a public authority without consent on any land.

(3)  However, subsections (1) and (2) apply with respect to land in Zone E1 National Parks and Nature Reserves or an equivalent land use zone only if the development—

(a)  is authorised by or under the National Parks and Wildlife Act 1974, or

(b)  is, or is the subject of, an existing interest within the meaning of section 39 of that Act, or

(c)  is carried out on land to which that Act applies over which an easement has been granted and is not contrary to the terms or nature of the easement.

(4)  In this section, a reference to development for the purpose of a pipeline includes a reference to development for any of the following purposes if the development is in connection with a pipeline—

(a)  construction works,

(b)  emergency works or routine maintenance works.

2.76 Exempt development

(1)  Development for any of the following purposes is exempt development if the development is in connection with a pipeline that is the subject of a licence or authorisation under the Gas Supply Act 1996 and complies with section 2.20—

(a)  installation, maintenance or replacement of—

(i)  gas metering at gas customers’ premises, or

(ii)  gas customer service lines connecting customers’ premises to a gas distribution network,

(b)  maintenance or emergency works or routine maintenance to protect the pipeline, the environment or the public, if the works involve no greater soil or vegetation disturbance than necessary.

(2)  Development for any of the following purposes is exempt development if the development is in connection with a gas pipeline that is the subject of a licence under the Pipelines Act 1967 and complies with section 2.20—

(a)  maintenance or emergency works to protect the pipeline, the environment or the public, if the works involve no greater soil or vegetation disturbance than necessary,

(b)  installation, maintenance, realignment or replacement of security fencing with a height of not more than 3.2m above ground level (existing),

(c)  installation, maintenance or replacement of—

(i)  pipeline markers, if they involve no greater soil or vegetation disturbance than necessary, or

(ii)  temporary fencing around work sites or open excavations, or,

(iii)  temporary structures associated with site compounds for construction or maintenance projects (such as demountable buildings) but only if any temporary building is not more than one storey high, or

(iv)  cathodic protection systems, or

(v)  controls over access to gas control facilities or to associated roads and facilities,

(d)  maintenance of—

(i)  existing access tracks or gates along pipeline corridors, if the maintenance involves no greater soil or vegetation disturbance than necessary, or

(ii)  gas control facilities (including painting, servicing or replacement of existing equipment and maintenance of, or minor alterations to, enclosures or buildings),

(e)  excavations to expose pipelines for inspection or testing, and the creation of temporary stockpiles associated with pipeline maintenance, if—

(i)  measures to control stockpile erosion or movement of sediment from the stockpiles are in place, and

(ii)  there is no greater soil or vegetation disturbance than necessary.

Subdivision 2 Development adjacent to pipeline corridors

2.77 Determination of development applications

(1)  Before determining a development application for development adjacent to land in a pipeline corridor, the consent authority must—

(a)  be satisfied that the potential safety risks or risks to the integrity of the pipeline that are associated with the development to which the application relates have been identified, and

(b)  take those risks into consideration, and

(c)  give written notice of the application to the pipeline operator concerned within 7 days after the application is made, and

(d)  take into consideration any response to the notice that is received from the pipeline operator within 21 days after the notice is given.

(2)  Land is in a pipeline corridor for the purposes of this section if the land is located—

(a)  within the licence area of a pipeline for gas, or for petroleum or other liquid fuels, licensed under the Pipelines Act 1967, or

(b)  within 20m of the centreline (measured radially) of a relevant pipeline, or

(c)  within 20m of land the subject of an easement for a relevant pipeline.

(3)  The following pipelines for gas, or for petroleum or other liquid fuels, are relevant pipelines for the purposes of this section—

(a)  the pipelines with licence numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 32, 33, 35 and 42 licensed under the Pipelines Act 1967,

(b)  the Clyde to Gore Bay pipeline.

Division 13 Port, wharf or boating facilities

2.78 Definitions

In this Division—

navigation and emergency response facilities means facilities for—

(a)  water traffic control, safe navigation and other safety purposes (such as beacons, navigation towers, radar towers, communication facilities, vessel monitoring facilities, lighthouses, buoys, marine markers, pilot stations, jetties, breakwaters or training walls), and

(b)  emergency response, including rescue stations and emergency communication facilities and jetties.

port facilities has the same meaning as in the Standard Instrument.

prescribed zone means any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  B4 Mixed Use,

(b)  B8 Metropolitan Centre,

(c)  IN1 General Industrial,

(d)  IN3 Heavy Industrial,

(e)  IN4 Working Waterfront,

(f)  SP1 Special Activities,

(g)  SP2 Infrastructure,

(h)  SP3 Tourist,

(i)  RE1 Public Recreation,

(j)  W2 Recreational Waterways,

(k)  W3 Working Waterways,

and includes any waterbody that is unzoned under any environmental planning instrument.

public ferry wharf means a wharf or any associated facilities used for the purposes of public passenger services provided by ferries.

wharf or boating facilities has the same meaning as in the Standard Instrument.

2.79 Application of Division

This Division does not apply to land within the Lease Area within the meaning of State Environmental Planning Policy (Three Ports) 2013.

2.80 Development permitted without consent

(1)  Development for the purpose of port facilities may be carried out—

(a)  by or on behalf of the Newcastle Port Corporation or Transport for NSW without consent on land in a prescribed zone or (providing the development is directly related to an existing port facility) on any other land, or

(b)  by or on behalf of any other public authority without consent on land in a prescribed zone.

(2)  The following development may be carried out by or on behalf of a public authority without consent on any land—

(a)  development for the purposes of navigation and emergency response facilities,

(b)  environmental management works associated with a port facility or a wharf or boating facility,

(c)  emergency works associated with a navigation and emergency response facility or a port facility.

(3)  Subdivision of land in the area of a port managed by the Newcastle Port Corporation, being subdivision that is required to facilitate operations at the port, may be carried out by the Newcastle Port Corporation without consent.

(4)  Development for the purpose of wharf or boating facilities may be carried out by or on behalf of a public authority without consent on any land. However, such development may be carried out on land reserved under the National Parks and Wildlife Act 1974 only if the development is authorised by or under that Act.

(5)  To avoid doubt, subsection (4) does not permit the subdivision of any land.

(6)  Development for the purposes of associated public transport facilities for a public ferry wharf may be carried out by or on behalf of a public authority without consent on any land. However, such development may be carried out on land reserved under the National Parks and Wildlife Act 1974 only if the development is authorised by or under that Act.

(7)  In this section, a reference to development for the purpose of port facilities, navigation and emergency response facilities, wharf or boating facilities or associated public transport facilities for a public ferry wharf includes a reference to the operation of such a facility and to development for any of the following purposes if the development is in connection with such facilities—

(a)  construction works (including dredging or land reclamation, if the dredging or land reclamation is required for the construction of those facilities),

(b)  routine maintenance works,

(c)  environmental management works,

(d)  alteration, demolition or relocation of a local heritage item,

(e)  alteration or relocation of a State heritage item.

(8)  In this section, a reference to development for the purpose of port facilities also includes a reference to any of the following if carried out in connection with port facilities—

(a)  dredging, or bed profile levelling, of existing navigation channels,

(b)  dredging, or bed profile levelling, so as to create new navigation channels.

(9)  In this section, a reference to development for the purpose of navigation and emergency response facilities, wharf or boating facilities or associated public transport facilities for a public ferry wharf also includes a reference to dredging, or bed profile levelling, of existing navigation channels, if that dredging or levelling is—

(a)  carried out for safety reasons, or

(b)  carried out in connection with any such facilities that, at the time of the dredging or levelling, exist.

2.81 Development permitted with consent

(1)  The erection or use of a structure (within an existing port facility or public ferry wharf) that is associated with retail premises, business premises or industrial premises that are not directly related to the operation of the port or wharf may be carried out by any person with consent on land in a prescribed zone or on unzoned land.

(2)  Subdivision of any land in the area of a port managed by the Newcastle Port Corporation may be carried out by any person with consent.

(3)  Dredging may be carried out by any person with consent on any land.

(4)  Development for the purpose of a facility for maintaining vessels may be carried out by any person with consent on land in a prescribed zone or on unzoned land.

(5)  Nothing in this section requires a person to obtain consent for development of any kind that the person is permitted by section 2.80 or 2.82 to carry out without consent.

2.82 Exempt development

Development for any of the following purposes is exempt development if it is lawfully carried out on land in the area of a port that is managed by the Newcastle Port Corporation, or is vested in Transport for NSW, and complies with section 2.20—

(a)  awnings or canopies,

(b)  adjustment of boundaries between lots or consolidation of lots, if it will not result in—

(i)  a change in the area of any lot by more than 10 per cent, or

(ii)  the creation of an additional lot or of a legal right to erect a building on a lot, or

(iii)  a reduction in vehicular access to any lot, in loading and unloading areas on any lot or in areas used for car parks, or

(iv)  a breach of any requirements under an environmental planning instrument relating to a minimum area of open space or of landscaping, or

(v)  a lot that depends on the use of the services provided to, or utilities of, another lot,

(c)  building alterations, including—

(i)  non-structural alterations to the exteriors of buildings (such as painting, plastering, cement rendering, cladding, attaching fittings and decorative work), where the alterations do not involve the use of external combustible cladding (within the meaning of the Environmental Planning and Assessment Regulation 2000), and

(ii)  interior alterations to buildings that do not affect the load bearing capacity of any load bearing component of a building,

(d)  demolition of a building—

(i)  that has a gross floor area of not more than 500m², or

(ii)  the erection of which is exempt development under this Chapter,

Note—

The term building is defined in the Environmental Planning and Assessment Act 1979 as including any structure.

(e)  minor installations for securing or accessing vessels (such as bollards, ladders, ramps, gantries, railings and mooring points), including the removal of those installations,

(f)  minor installations for protecting wharves or vessels (such as cathodic protection systems and fenders), including the removal of those installations,

(g)  emergency services equipment (including replacement or augmentation of fire systems, pumphouses, fire water tanks and other essential fire safety facilities),

(h)  a flagpole that—

(i)  has a height above ground level (existing) of not more than 30m or (if attached to or mounted on a building) extends not more than 10m above the highest point of the roof of the building, and

(ii)  is located no closer than 20m from any boundary of a property on which residential accommodation is located, and

(iii)  does not display any commercial advertisements for or about anything other than the Newcastle Port Corporation (in the case of the area of a port managed by it) or Transport for NSW (in the case of the area of a port vested in it) or any business operating in those areas,

(i)  hail netting that—

(i)  has a height above ground level (existing) of not more than 12m, and

(ii)  is dark in colour,

(j)  paving, or an at-grade car park (including access to or from the car park), that—

(i)  is ancillary or incidental to a lawful use of the land, and

(ii)  is designed so that any surface water run-off is directed to a stormwater management system or landscaped area,

(k)  landscaping, including landscape structures or features (such as art work),

(l)  marking out of roads,

(m)  structures for external lighting if—

(i)  any obtrusive effects of the external lighting (if new) are controlled in accordance with AS 4282—1997, Control of the obtrusive effects of outdoor lighting, and

(ii)  the structures have a height above ground level (existing) of not more than 35m or (if attached to or mounted on a building) do not extend more than 10m above the highest point of the roof of the building,

(n)  pedestrian ramps, pathways or stairways (other than escalators or travelators),

(o)  escalators, or travelators, that are designed to ensure that any noise emitted by them does not exceed 5dB(A) above ambient background noise level (as measured at any adjoining property boundary),

(p)  pollution control facilities, occupational health and safety measures and environmental management works (including such facilities and works associated with liquid petroleum gas storage containers or fuel storage tanks) that satisfy any applicable pollution control provisions and guidelines and are not inconsistent with, or in contravention of, an existing development consent or undertaken for the purpose of remediating contaminated land,

(q)  retaining walls (not including sea walls) that—

(i)  provide for the retaining of fill to a height above ground level (existing) of not more than 2m and excavation to a depth below ground level (existing) of not more than 1m, and

(ii)  are constructed so as to not impede the natural flow of stormwater or surface water run-off,

(r)  hoardings or scaffolding in the circumstances specified in Schedule 1,

(s)  security fencing or security boom gate (whether or not installed along a road frontage) that has a height (in the case of a security fence) of not more than 3.5m,

(t)  safety or security barriers, including jersey barriers, earth berms and bollards,

(u)  traffic monitoring and security cameras and other facilities for tracking vessels or trucks, port navigation or security (including radar, communication or microwave receivers and the like),

(v)  directional or safety signs that comply with AS 1319—1994, Safety signs for the occupational environment and AS 4282—1997, Control of the obtrusive effects of outdoor lighting,

(w)  public notices that—

(i)  are displayed by a public authority, and

(ii)  contain only warning, safety, security or instructive information (whether or not conveyed by a graphic),

(x)  business identification signs that—

(i)  are flush to or painted on a wall, and

(ii)  have an area of not more than 25m², and

(iii)  are not more than 10m wide or long, and

(iv)  if flush to a wall, do not project more than 0.3m out from the wall and do not extend vertically above or laterally beyond the wall, and

(v)  are not illuminated, and

(vi)  relate to the business carried out on the land,

(y)  without limiting paragraph (v), (w) or (x), a change in the display on, or the maintenance or replacement of, an existing sign that does not involve a change in the area, form or shape of the sign,

(z)  a temporary structure if—

(i)  the structure is used for a period totalling not more than 12 months, and

(ii)  any car parks and directional or safety signage associated with the use of the structure is located on the same site as the structure, and

(iii)  any waste associated with use of the structure is disposed of lawfully,

(za)  utilities and service facilities that have a height of not more than 3m above ground level (existing), including pipelines (but not including pipelines for fuel or hazardous materials or pipelines that are the subject of a licence under the Pipelines Act 1967 or above ground or overhead power facilities),

(zb)  minor vegetation management carried out for the purpose of maintaining the security or safety of the designated port concerned and that involves no more disturbance of vegetation than is necessary for that purpose,

(zc)  investigations of the physical properties of soil, rock or seabed (including geotechnical and other testing, surveying and sampling to investigate those physical properties),

(zd)  movable plant and equipment,

(ze)  a port facility, but only in the circumstances specified in clause 21 of Schedule 1 to State Environmental Planning Policy (Three Ports) 2013 (relating to the change of use of port facilities), and the maintenance of a port facility if—

(i)  the facility is not a petroleum terminal, and

(ii)  the facility was not, before the change of use, a petroleum terminal, and

(iii)  the maintenance work does not involve dredging or bed profile levelling, and

(iv)  the maintenance work involves no greater waterway bed, soil or vegetation disturbance than necessary,

(zf)  washbays,

(zg)  rainwater or grey water tanks used by any business at the designated port that, together with any other rainwater or grey water tanks used by the business, have a total storage capacity of not more than 20,000 litres of water,

(zh)  maintenance, removal and replacement of moorings and navigation marks if—

(i)  they are not located in a marine park or aquatic reserve (within the meaning of the Marine Estate Management Act 2014), and

(ii)  they are not moved to a different location, and

(iii)  the work involves no greater waterway bed, soil or vegetation disturbance than necessary,

(zi)  emergency works to protect port facilities, navigation facilities, wharf or boating facilities, the environment or the public, but only if the work involves no greater waterway bed, soil or vegetation disturbance than necessary.

2.83 Complying development

(1)  Development for any of the following purposes is complying development if it is lawfully carried out on land in the area of a port that is managed by the Newcastle Port Corporation, or is vested in Transport for NSW, and complies with section 2.22—

(a)  addition to, or alteration (including internal alteration) of, a building that does not result in—

(i)  the gross floor area of the building being the lesser of 25 per cent or 500m² greater than it was immediately before the commencement of this Chapter, or

(ii)  the building having a height (including the addition or alteration) of more than 12m above ground level (existing),

(b)  a new building that—

(i)  has a gross floor area of not more than 500m² or is not more than 1 storey high, and

(ii)  has a height above ground level (existing) of not more than 12m, and

(iii)  except in the case of a security booth, is erected no closer than 1m from any adjoining property boundary (unless the adjoining property is owned or managed by the Port Corporation), and

(iv)  in the case of food premises, including a canteen or kiosk, is designed, constructed and fitted-out in accordance with Australian Standard AS 4674—2004, Design, construction and fit-out of food premises,

(c)  demolition, carried out in accordance with Australian Standard AS 2601—2001, The demolition of structures, of a building—

(i)  that has a gross floor area not exceeding 2,000m², or

(ii)  the erection of which is complying development under this section,

(d)  fences or gates (including security boom gates) that have a height (when closed, in the case of boom gates) of not more than 5m above ground level (existing),

(e)  buildings (including switch rooms or security booths) or sheds that—

(i)  have a floor space area of not more than 500m², and

(ii)  are one storey high and have a height above ground level (existing) of not more than 10m, and

(iii)  are not within 10m of any boundary,

(f)  retaining walls (other than seawalls) that—

(i)  have a height of not more than 3m above ground level (existing), and

(ii)  if they have a height of more than 1m, are certified by a structural engineer as having a satisfactory design and structure and as having been constructed in accordance with the specifications of that design, and

(iii)  comply with—

(A)  AS 3700—2011, Masonry structures and AS 3700 Supp 1—2004, Masonry structures—Commentary (Supplement to AS 3700—2001), and

(B)  AS/NZS 1170.1:2002, Structural design actions Part 1: Permanent, imposed and other actions and AS/NZS 1170.1 Supp1:2002, Structural design actions—Permanent, imposed and other actions—Commentary (Supplement to AS/NZS 1170.1:2002), and

(C)  if the structure is made of timber, AS 1720:1—1997/Amdt 1—1998, Timber structures (known as the SAA Timber Structures Code)—Design methods,

(g)  removal of existing cranes, replacement of existing cranes with smaller cranes or with cranes of the same capacity, or installation of crane rails for an existing crane, if—

(i)  the development is not inconsistent with or in contravention of an existing consent, and

(ii)  in the case of the replacement of cranes or installation of crane rails, the new cranes or crane rails are certified by a structural engineer as having a satisfactory design and as having been erected or installed in accordance with the specifications of that design,

(h)  liquid petroleum gas storage containers that—

(i)  together have a capacity to store, at any one time, a total of not more than 3 tonnes of gas for each business, and

(ii)  comply with the relevant requirements of AS 1940—2004, The storage and handling of flammable and combustible liquids and Australian and New Zealand Standard AS/NZS 1596:2008, The storage and handling of LP Gas,

(i)  fuel storage tanks that—

(i)  together have a capacity to store, at any one time, a total of not more than 50,000 litres of fuel for each business, and

(ii)  comply with the relevant requirements of Australian Standard AS 1940—2004, The storage and handling of flammable and combustible liquids,

(j)  fire water tanks that together have a capacity to store, at any one time, a total of not more than 1,500 tonnes of water for each business,

(k)  new or replacement paving, if the area being paved is not more than 5,000m² and the development is not inconsistent with or in contravention of an existing consent,

(l)  satellite dishes or telecommunications facilities, if—

(i)  the development will result in there being not more than one dish or one facility on the site at any one time, and

(ii)  the dish or facility is made of non-reflective materials, has a height of not more than 12m above ground level (existing) and a diameter of not more than 3m,

2.84 Complying development conditions—additional conditions

A complying development certificate for development referred to in section 2.83 is subject to the following conditions (in addition to the conditions set out in section 2.23)—

(a)  at the following stages, the principal certifying authority must be given the following survey certificates prepared by a registered land surveyor—

(i)  before any form work below any ground floor slab or any addition to the ground floor slab, for a new building or addition is completed or (if there is no such form work) before the concrete is poured for the ground floor slab or addition to the ground floor slab—a survey certificate showing the location of the proposed new building or addition relative to the property boundaries,

(ii)  at the completion of the lowest floor of any building or any addition to the lowest floor—a survey certificate confirming that the levels correspond to the levels shown on the plans in respect of which the complying development certificate is issued,

(b)  to control dust emissions from the site, suitable screens or barricades must be erected prior to any demolition, excavation or building work,

(c)  following removal of any friable asbestos from the site, a certificate from a suitably qualified person must be provided to the principal certifying authority certifying that no such asbestos remains on site and a copy of the certificate must be forwarded, before any other work begins, to the following—

(i)  the Newcastle Port Corporation if the land is in the area of a port managed by it,

(ii)  Transport for NSW if the land is in the area of a port vested in it,

(iii)  the Department of Planning and Environment,

(iv)  the council.

Division 14 Public administration buildings and buildings of the Crown

2.85 Definitions

In this Division—

prescribed zone means any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  B3 Commercial Core,

(b)  B4 Mixed Use,

(c)  B5 Business Development,

(d)  B6 Enterprise Corridor,

(e)  B7 Business Park,

(f)  B8 Metropolitan Centre,

(g)  SP1 Special Activities,

(h)  SP2 Infrastructure.

public administration building has the same meaning as it has in the Standard Instrument.

Note—

The Standard Instrument defines public administration building as follows—

public administration building means a building used as offices or for administrative or other like purposes by the Crown, a statutory body, a council or an organisation established for public purposes, and includes a courthouse or a police station.

2.86 Existing buildings of the Crown

This Chapter does not restrict or prohibit, or enable the restriction or prohibition of, the use of existing buildings of the Crown by the Crown.

2.87 Sections 2.88 and 2.89 not applicable to police stations

Sections 2.88 and 2.89 do not apply to development for the purpose of police stations within the meaning of Division 6 of Part 2.3.

2.88 Development permitted with consent

(1)  Development for the purpose of public administration buildings may be carried out by or on behalf of a public authority with consent on land in a prescribed zone.

(2)  Development for the purpose of public administration buildings that are ancillary to and located on the same land as another infrastructure facility may be carried out by or on behalf of a public authority with consent if—

(a)  the development application for the public administration building is determined at the same time as the development application for the infrastructure facility, and development for the public administration building is to be carried out at the same time as development for the infrastructure facility, or

(b)  development for the purposes of the public administration building is to be carried out on land on which an existing infrastructure facility is located.

2.89 Development permitted without consent

(1)  Development for any of the following purposes may be carried out by or on behalf of a public authority without consent—

(a)  alterations of or additions to a public administration building,

(b)  restoration of a damaged public administration building,

(c)  demolition of a public administration building,

(d)  replacement of a public administration building if the height of the building does not exceed 12 metres and the setback is at least 5 metres.

(2)  Development for the purpose of a public administration building that is ancillary to and located on the same land as an infrastructure facility may be carried out by or on behalf of a public authority without consent if—

(a)  development for the purpose of the infrastructure facility may be carried out without consent on that land, and

(b)  the approval of the activity (within the meaning of Part 5 of the Act) includes an approval for the public administration building, and development for the public administration building is to be carried out at the same time as development for the infrastructure facility.

2.90 Exempt development

Any of the following development is exempt development if the development complies with section 2.20—

(a)  development for the purposes of landscaping in the grounds of a public administration building, including landscape structures or features (such as art work),

(b)  use of a building as a public administration building following a change of use of the building as commercial premises.

Note—

Subdivision 10A of Division 1 of Part 2 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 contains provisions relating to a change of use from a public administration building to business premises, office premises, shops and kiosks.

Division 15 Railways

Subdivision 1 Railways and rail infrastructure facilities

2.91 Definitions

(1)  In this Division—

ARTC means Australian Rail Track Corporation Ltd (ACN 081 455 754).

ARTC arrangement means a lease, licence agreement or other arrangement under Part 8A of the Transport Administration Act 1988.

freight includes livestock, containers, liquids, materials, plant and equipment, vehicles and vessels.

Interim Metro Corridor means land shown on a rail corridors map as—

(a)  CBD Metro (Zone A—Above Ground Including Cut & Cover Tunnel), or

(b)  CBD Metro (Zone B—Tunnel), or

(c)  CBD Metro Station Extent.

interim rail corridor means the Interim Metro Corridor, the Interim Rail Link Corridor or the Interim Sydney Metro West Corridor.

Interim Rail Link Corridor means land shown on a rail corridors map as—

(a)  CBD Rail Link (Zone B—Tunnel), or

Interim Sydney Metro West Corridor means land shown on a rail corridors map as Sydney Metro West Tunnel.

major development has the same meaning it has in Part 4 of the City of Sydney Act 1988.

prescribed zone means any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  IN1 General Industrial,

(b)  IN2 Light Industrial,

(c)  IN3 Heavy Industrial,

(d)  SP1 Special Activities,

(e)  SP2 Infrastructure.

rail authority for a rail corridor means—

(a)  in relation to a rail corridor that is vested in or owned by ARTC or is the subject of an ARTC arrangement—ARTC, and

(b)  in relation to any other rail corridor—Transport for NSW.

rail corridor means land—

(a)  that is owned, leased, managed or controlled by a public authority for the purpose of a railway or rail infrastructure facilities, or

(b)  that is zoned under an environmental planning instrument predominantly or solely for development for the purpose of a railway or rail infrastructure facilities, or

(c)  in respect of which the Minister has granted approval under Part 3A or Division 5.2 or (before its repeal) Division 4 of Part 5 of the Act, or consent under Part 4 of the Act, for the carrying out of development (or for a concept plan for a project comprising or including development) for the purpose of a railway or rail infrastructure facilities.

Note—

Copies of the Minister’s approvals are available on the website of the Department of Planning and Environment.

rail corridors map means the maps marked as follows and held in the head office of the Department of Planning and Environment—

(a)  State Environmental Planning Policy (Infrastructure) 2007—Interim Rail Corridor—CBD Rail Link & CBD Metro,

(b)  State Environmental Planning Policy (Transport and Infrastructure) 2021—Interim Rail Corridor—Sydney Metro West.

rail infrastructure facilities include—

(a)  railway tracks, associated track structures, cuttings, drainage systems, fences, tunnels, ventilation shafts, emergency accessways, bridges, embankments, level crossings and roads, pedestrian and cycleway facilities, and

(b)  signalling, train control, communication and security systems, and

(c)  power supply (including overhead power supply) systems, and

(d)  railway stations, station platforms and areas in a station complex that commuters use to get access to the platforms, and

(e)  public amenities for commuters, and

(f)  associated public transport facilities for railway stations, and

(g)  facilities for the assembly, maintenance and stabling of rolling stock, and

(h)  facilities for the dismantling and stabling of rolling stock taken out of service, and

(i)  refuelling depots, garages, maintenance facilities and storage facilities that are for the purposes of a railway, and

(j)  railway workers’ facilities, and

(k)  rail freight terminals, sidings and freight intermodal facilities, and

(l)  buildings for or related to railway purposes,

but do not include buildings or works that are for residential, retail or business purposes and unrelated to railway purposes.

RailCorp means Rail Corporation New South Wales constituted under the Transport Administration Act 1988.

(2)  A reference in this Division to rail infrastructure facilities includes a reference to any facilities, buildings, works or infrastructure related to light rail purposes.

s 2.91: Am 2022 (441), Sch 1[1].

2.92 Development permitted without consent—rail infrastructure facilities generally

(1)  Development for the purpose of a railway or rail infrastructure facilities may be carried out by or on behalf of a public authority without consent on any land. However, such development may be carried out without consent on land reserved under the National Parks and Wildlife Act 1974 only if the development—

(a)  is authorised by or under that Act, or

(b)  is, or is the subject of, an existing interest within the meaning of section 39 of that Act, or

(c)  is on land to which that Act applies over which an easement has been granted and is not contrary to the terms or nature of the easement.

(2)  In this section, a reference to development for the purpose of a railway or rail infrastructure facilities includes a reference to operation of a railway and to development for any of the following purposes if the development is in connection with a railway or rail infrastructure facilities—

(a)  construction works (whether or not in a heritage conservation area), including—

(i)  temporary crushing plants, or temporary concrete batching plants, that are in or adjacent to a rail corridor and used solely in connection with the construction of a railway, and

(ii)  track support earthworks, and

(iii)  alteration, demolition or relocation of a local heritage item, and

(iv)  alteration or relocation of a State heritage item, and

(v)  temporary buildings, or temporary facilities for the management of railway construction, that are in or adjacent to a rail corridor,

(b)  emergency works or routine maintenance works,

Note—

See section 2.7(4) regarding emergency works and routine maintenance works on land to which clauses 10 and 11 of State Environmental Planning Policy (Coastal Management) 2018 apply.

(c)  maintenance of an existing rail infrastructure facility,

(d)  environmental management works.

(3)  Development for the following purposes may be carried out by or on behalf of a rail authority for a rail corridor without consent on land in a prescribed zone—

(a)  any of the following if the development is carried out in a car park intended for use by commuters that is owned, leased, managed or controlled by a rail authority—

(i)  vehicle share car parking,

(ii)  vehicle hire,

(iii)  vehicle servicing and cleaning,

(b)  markets if the development is carried out on land used for the purpose of a railway station or on any land that is owned, leased, managed or controlled by a rail authority no more than once per calendar month.

2.93 Development permitted without consent—particular rail infrastructure facilities

Development for the purpose of any of the following railways or railway projects as described in Schedule 2 may be carried out by or on behalf of a public authority without consent on any land—

(a)  the Sydney Airport Rail Link,

(b)  the Parramatta Rail Link,

(c)  the Southern Sydney Freight Line,

(d)  the Rail Clearways Program.

2.94 Development permitted with consent

(1)  Development for any of the following purposes, being development that is not development of a kind referred to in section 2.92, may be carried out by any person with consent on land in a prescribed zone—

(a)  rail freight terminals, rail freight sidings or rail freight intermodal facilities,

(b)  any of the following in a rail corridor if the development is carried out wholly or partly above a railway station—

(i)  residential accommodation,

(ii)  tourist and visitor accommodation,

(iii)  retail premises,

(iv)  business premises,

(c)  retail or business premises in a railway complex, including the following such premises that are—

(i)  below a railway complex but above ground (for example, at Circular Quay),

(ii)  in areas of the railway complex used by commuters to gain access to station platforms,

(d)  retail or business premises in a transport interchange (other than an at-grade transport interchange) if the premises are located on the ground floor of the interchange or have street frontage,

(e)  retail or business premises in a car park intended for use by commuters (other than an at-grade car park) if the premises are located on the ground floor of the car park or have street frontage,

(f)  car parks that are intended to be used by commuters but that are not owned, leased, managed or controlled by a public authority,

(g)  bus interchanges that are integrated or associated with railway stations but that are not owned, leased, managed or controlled by a public authority.

(2)  Nothing in this section requires a public authority to obtain consent for development that is permitted without consent by section 2.92.

2.95 Exempt development—public authorities

(1)  Development for any of the following purposes is exempt development if it is carried out by or on behalf of a public authority, is in connection with a railway or rail infrastructure facilities and complies with section 2.20, involves no greater disturbance to the ground or vegetation than necessary, and does not result in an increase in stormwater drainage or run-off from the site concerned—

(a)  routine maintenance (including removal of graffiti or debris, maintenance or replacement of lighting, mechanical systems, electrical equipment or air monitoring equipment and replacement of screening of overhead bridges),

(b)  emergency works to protect railway infrastructure facilities, the environment or the public,

(c)  maintenance or replacement of identification, directional or safety signs that does not involve a change in their location or size,

(d)  maintenance of existing access roads,

(e)  slope stability works that are required for safety reasons,

(f)  erection, maintenance or replacement of safety barriers,

(g)  construction, maintenance, replacement or realignment of security fencing with a height of not more than 3.2m above ground level (existing),

(h)  reconstruction, maintenance or replacement of culverts or drains,

(i)  upgrading or maintenance of landscaping, or vegetation management, that—

(i)  does not involve construction works, and

(ii)  involves the replacement (if any) of existing materials with similar materials only,

(j)  installation, maintenance or replacement of—

(i)  temporary structures, or temporary signs, associated with alternative transport arrangements necessitated by rail track work or railway maintenance, or

(ii)  other signs that comply with any relevant requirements of AS 1319—1994, Safety signs for the occupational environment and AS 4282—1997, Control of the obtrusive effects of outdoor lighting.

(1A)  The use of a railway station room for the purposes of commercial premises, community facilities or public administration buildings is exempt development if the development—

(a)  is carried out by or on behalf of a public authority, and

(b)  complies with section 2.20, and

(c)  does not affect the load-bearing capacity of a load-bearing component of the building in which the room is located.

(1B)  If the room is used for the purposes of food and drink premises, the room must be designed, constructed and fitted-out in accordance with Australian Standard AS 4674—2004, Design, construction and fit-out of food premises, published in February 2004.

(2)  For the purposes of this section, development carried out by or on behalf of a lessee or licensee of ARTC, Sydney Metro or Transport for NSW is taken to be carried out by or on behalf of ARTC, Sydney Metro or Transport for NSW if the development is required or authorised to be carried out by the lease or licence.

(3)  In this section—

railway station room means a room that—

(a)  is located on a station platform or in an area of a railway complex used by commuters to access station platforms, and

(b)  was previously used for railway purposes.

Note—

See also section 2.21 in relation to exempt development carried out by public authorities for purposes specified in Schedule 1.

s 2.95: Am 2022 (441), Sch 1[2]–[4].

2.96 Exempt development

Development for the purposes of automatic teller machines, coffee carts or vending machines is exempt development if—

(a)  the development complies with section 2.20, and

(b)  is located on station platforms or in areas of a railway complex used by commuters to access station platforms.

s 2.96: Subst 2022 (441), Sch 1[5].

2.96A Complying development

(1)  The use of a railway station room for the purposes of commercial premises, community facilities or public administration buildings is complying development if the development—

(a)  complies with section 2.22, and

(b)  does not affect the load-bearing capacity of a load-bearing component of the building in which the room is located.

(2)  If the development involves internal alterations, the alterations must not involve structural alterations.

(3)  If the room is used for the purposes of food and drink premises, the room must be designed, constructed and fitted-out in accordance with Australian Standard AS 4674—2004, Design, construction and fit-out of food premises, published in February 2004.

(4)  In this section—

railway station room means a room that—

(a)  is located on a station platform or in an area of a railway complex used by commuters to access station platforms, and

(b)  was previously used for railway purposes.

s 2.96A: Ins 2022 (441), Sch 1[5].

Subdivision 2 Development in or adjacent to rail corridors and interim rail corridors—notification and other requirements

2.97 Development involving access via level crossings

(1)  This section applies to development that involves—

(a)  a new level crossing, or

(b)  the conversion into a public road of a private access road across a level crossing, or

(c)  a likely significant increase in the total number of vehicles or the number of trucks using a level crossing as a result of the development.

(2)  Before determining a development application for development to which this section applies, the consent authority must—

(a)  within 7 days after the application is made, give written notice of the application to the rail authority for the rail corridor, and

(b)  take into consideration—

(i)  any response to the notice that is received within 21 days after the notice is given, and

(ii)  the implications of the development for traffic safety including the costs of ensuring an appropriate level of safety, having regard to existing traffic characteristics and any likely change in traffic at level crossings as a result of the development, and

(iii)  the feasibility of access for the development that does not involve use of level crossings.

(3)  Subject to subsection (5), the consent authority must not grant consent to development to which this section applies without the concurrence of the rail authority for the rail corridor.

(4)  In determining whether to provide concurrence, the rail authority must take into account—

(a)  any rail safety or operational issues associated with the aspects of the development, and

(b)  the implications of the development for traffic safety including the cost of ensuring an appropriate level of safety, having regard to existing traffic and any likely change in traffic at level crossings as a result of the development.

(5)  The consent authority may grant consent to development to which this section applies without the concurrence of the rail authority for the rail corridor if 21 days have passed since the consent authority gave notice under subsection (2)(a) and the rail authority has not granted or refused to grant concurrence.

(6)  The consent authority must provide the rail authority for the rail corridor with a copy of the determination of the application within 7 days after the determination is made.

(7)  In this section—

level crossing means a level crossing over railway lines.

traffic includes rail, road and pedestrian traffic.

2.98 Development adjacent to rail corridors

(1)  This section applies to development on land that is in or adjacent to a rail corridor, if the development—

(a)  is likely to have an adverse effect on rail safety, or

(b)  involves the placing of a metal finish on a structure and the rail corridor concerned is used by electric trains, or

(c)  involves the use of a crane in air space above any rail corridor, or

(d)  is located within 5 metres of an exposed overhead electricity power line that is used for the purpose of railways or rail infrastructure facilities.

Note—

Section 2.48 also contains provisions relating to development that is within 5 metres of an exposed overhead electricity power line.

(2)  Before determining a development application for development to which this section applies, the consent authority must—

(a)  within 7 days after the application is made, give written notice of the application to the rail authority for the rail corridor, and

(b)  take into consideration—

(i)  any response to the notice that is received within 21 days after the notice is given, and

(ii)  any guidelines that are issued by the Secretary for the purposes of this section and published in the Gazette.

(3)  Despite subsection (2), the consent authority is not required to comply with subsection (2)(a) and (b)(i) if the development application is for development on land that is in or adjacent to a rail corridor vested in or owned by ARTC or the subject of an ARTC arrangement.

(4)  Land is adjacent to a rail corridor for the purpose of this section even if it is separated from the rail corridor by a road or road related area within the meaning of the Road Transport Act 2013.

2.99 Excavation in, above, below or adjacent to rail corridors

(1)  This section applies to development (other than development to which section 2.101 applies) that involves the penetration of ground to a depth of at least 2m below ground level (existing) on land—

(a)  within, below or above a rail corridor, or

(b)  within 25m (measured horizontally) of a rail corridor, or

(c)  within 25m (measured horizontally) of the ground directly below a rail corridor, or

(d)  within 25m (measured horizontally) of the ground directly above an underground rail corridor.

(2)  Before determining a development application for development to which this section applies, the consent authority must—

(a)  within 7 days after the application is made, give written notice of the application to the rail authority for the rail corridor, and

(b)  take into consideration—

(i)  any response to the notice that is received within 21 days after the notice is given, and

(ii)  any guidelines issued by the Secretary for the purposes of this section and published in the Gazette.

(3)  Subject to subsection (5), the consent authority must not grant consent to development to which this section applies without the concurrence of the rail authority for the rail corridor to which the development application relates.

(4)  In deciding whether to provide concurrence, the rail authority must take into account—

(a)  the potential effects of the development (whether alone or cumulatively with other development or proposed development) on—

(i)  the safety or structural integrity of existing or proposed rail infrastructure facilities in the rail corridor, and

(ii)  the safe and effective operation of existing or proposed rail infrastructure facilities in the rail corridor, and

(b)  what measures are proposed, or could reasonably be taken, to avoid or minimise those potential effects.

(5)  The consent authority may grant consent to development to which this section applies without the concurrence of the rail authority concerned if—

(a)  the rail corridor is owned by or vested in ARTC or is the subject of an ARTC arrangement, or

(b)  in any other case, 21 days have passed since the consent authority gave notice under subsection (2)(a) and the rail authority has not granted or refused to grant concurrence.

2.100 Impact of rail noise or vibration on non-rail development

(1)  This section applies to development for any of the following purposes that is on land in or adjacent to a rail corridor and that the consent authority considers is likely to be adversely affected by rail noise or vibration—

(a)  residential accommodation,

(b)  a place of public worship,

(c)  a hospital,

(d)  an educational establishment or centre-based child care facility.

(2)  Before determining a development application for development to which this section applies, the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this section and published in the Gazette.

(3)  If the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded—

(a)  in any bedroom in the residential accommodation—35 dB(A) at any time between 10.00 pm and 7.00 am,

(b)  anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

2.101 Development within or adjacent to interim rail corridor

(1)  This section applies to development that is—

(a)  on the land shown as “Zone A” on a rail corridors map and has a capital investment value of more than $200,000, or

(b)  on the land shown as “Zone B” on a rail corridors map and—

(i)  involves the penetration of ground to a depth of at least 2m below ground level (existing), or

(ii)  has a capital investment value of more than $200,000 and involves the erection of a structure that is 10 or more metres high or an increase in the height of a structure so that it is more than 10m, or

(c)  on the land shown as “Sydney Metro West Tunnel” on a rail corridors map and involves the penetration of ground to a depth of at least 2m below ground level (existing).

(2)  Before determining a development application to which this section applies, the consent authority must give written notice of the application to the rail authority for the interim rail corridor in which the development is to be carried out (the relevant rail authority) within 7 days after the application is made.

(3)  Except as provided by subsection (5), consent must not be granted to development to which this section applies without the concurrence of the relevant rail authority.

(4)  In determining whether to provide concurrence, the relevant rail authority is to take into account the likely effect of the development on—

(a)  the practicability and cost of carrying out rail expansion projects on the land in the future, and

(b)  without limiting paragraph (a), the structural integrity or safety of, or ability to operate, such a project, and

(c)  without limiting paragraph (a), the land acquisition costs and the costs of construction, operation or maintenance of such a project.

(5)  The consent authority may grant consent to development to which this section applies without the concurrence of the relevant rail authority if—

(a)  the consent authority has given the relevant rail authority notice of the development application, and

(b)  21 days have passed since that notice was given and the relevant rail authority has not granted or refused to grant concurrence.

(6)  The consent authority must provide the relevant rail authority with a copy of the determination of the application within 7 days after the determination is made.

(7)  In this section—

rail authority means the following—

(a)  for the Interim Metro Corridor or the Interim Rail Link Corridor—Transport for NSW,

(b)  for the Interim Sydney Metro West Corridor—Sydney Metro constituted under the Transport Administration Act 1988.

2.102 Major development within Interim Metro Corridor

(1)  This section applies to land within the City of Sydney that is within the Interim Metro Corridor.

(2)  A consent authority must—

(a)  give written notice of an application for consent to major development on land to which this section applies to the Secretary of the Department of Transport within 7 days of receiving the application, and

(b)  before determining the application, take into account any submissions made by that Secretary within 21 days after giving the notice.

(3)  A consent authority must not grant consent to major development on land to which this section applies if the development would have an adverse effect on the viability of the proposed metro, including by increasing the likely cost of developing the proposed metro.

(4)  For the purposes of determining whether a proposed major development could have an adverse effect on the viability of the proposed metro, a consent authority may rely on a certificate issued by the Secretary of the Department of Transport that certifies whether or not there would be any such adverse effect.

(5)  The consent authority must provide the Secretary of the Department of Transport with a copy of the determination of the application within 7 days after the determination is made.

2.103 Development near proposed metro stations

(1)  This section applies to land shown as CBD Metro Station Extent on a rail corridors map and land that is adjacent to that land.

(2)  A consent authority must not grant consent to development on land to which this section applies unless it has taken into consideration—

(a)  whether the proposed development will adversely affect the development and operation of a proposed metro station, including by impeding access to, or egress from, the proposed metro station, and

(b)  whether the proposed development will encourage the increased use of public transport.

Division 16 Research and monitoring stations

2.104 Definitions

In this Division—

monitoring station means a facility operated for the principal purpose of monitoring weather, noise, air, water, groundwater or environmental impacts.

prescribed zone means any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  RU1 Primary Production,

(b)  RU2 Rural Landscape,

(c)  RU3 Forestry,

(d)  RU4 Primary Production Small Lots,

(e)  RU5 Village,

(f)  IN4 Working Waterfront,

(g)  SP1 Special Activities,

(h)  SP2 Infrastructure,

(i)  W2 Recreational Waterways,

(j)  W3 Working Waterways.

research station means a facility operated by a public authority for the principal purpose of agricultural, environmental, fisheries, forestry, minerals or soil conservation research, and includes any associated facility for education, training, administration or accommodation.

2.105 Development permitted with consent

Development for the purpose of research stations may be carried out by or on behalf of a public authority with consent on land in a prescribed zone.

2.106 Development permitted without consent

(1)  Development for any of the following purposes connected with an existing research station may be carried out by or on behalf of a public authority without consent on land in a prescribed zone—

(a)  maintenance or operation of the research station,

(b)  replacement of buildings,

(c)  demolition of buildings,

(d)  minor alterations of or additions to the research station,

if the development does not involve the clearing of more than 2 hectares of native vegetation.

(2)  Development for the purpose of a monitoring station (other than development to which section 2.107 applies) may be carried out by or on behalf of a public authority without consent on any land.

2.107 Exempt development

Development for the purpose of a monitoring station is exempt development if it complies with section 2.20 and is carried out on land within Zone E1 National Parks and Nature Reserves or a prescribed zone or on land acquired under Part 11 of the National Parks and Wildlife Act 1974.

Division 17 Roads and traffic

Subdivision 1 Roads and road infrastructure facilities

2.108 Definitions

In this Division—

accredited bus service operator means a person who is—

(a)  accredited under Division 1 of Part 2 of the Passenger Transport Act 1990 to carry on a public passenger service, within the meaning of that Act, by means of a bus, or

(b)  accredited under Part 2 of the Passenger Transport Act 2014 to operate a public passenger service, within the meaning of that Act, by means of a bus.

AS 1428 means the following publications—

(a)  Australian Standard AS 1428.1—2009, Design for access and mobility, Part 1: General requirements for access—New building work,

(b)  Australian Standard AS 1428.2—1992, Design for access and mobility, Part 2: Enhanced and additional requirements—Buildings and facilities,

(c)  Australian and New Standard AS/NZS 1428.4.1:2009, Design for access and mobility, Part 4.1: Means to assist the orientation of people with vision impairment—Tactile ground surface indicators,

(d)  Australian Standard AS 1428.5—2010, Design for access and mobility, Part 5: Communication for people who are deaf or hearing impaired.

bus depot means premises used for the servicing, repair, garaging or parking of buses.

classified road has the same meaning as it has in the Standard Instrument.

Note—

The Standard Instrument defines classified road (by reference to the Roads Act 1993) to mean any of the following—

(a)  a main road,

(b)  a highway,

(c)  a freeway,

(d)  a controlled access road,

(e)  a secondary road,

(f)  a tourist road,

(g)  a tollway,

(h)  a transitway,

(i)  a State work.

See the Roads Act 1993 for the meanings of the terms listed above.

Disability Standards means Disability Standards for Accessible Public Transport 2002 made under the Disability Discrimination Act 1992 of the Commonwealth.

prescribed zone means any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  B4 Mixed Use,

(b)  B6 Enterprise Corridor,

(c)  B8 Metropolitan Centre,

(d)  IN1 General Industrial,

(e)  IN2 Light Industrial,

(f)  IN3 Heavy Industrial,

(g)  SP1 Special Activities,

(h)  SP2 Infrastructure.

public road means—

(a)  any road that is opened or dedicated as a public road, whether under the Roads Act 1993 or any other Act or law, and

(b)  any road that is declared to be a public road for the purposes of the Roads Act 1993.

regular bus service means a public passenger service (within the meaning of the Passenger Transport Act 2014) that is conducted by bus according to regular routes and timetables and does not include a tourist service or a community transport service (within the meaning of the Passenger Transport Act 2014).

road corridor means—

(a)  land that is used for the purposes of a road or road infrastructure facilities and owned or managed by a public authority, or

(b)  any land in respect of which the Minister has granted approval under Part 3A or Division 5.2 or (before its repeal) Division 4 of Part 5 of the Act, or consent under Part 4 of the Act, for the carrying out of development for the purpose of a road or road infrastructure facilities.

road infrastructure facilities includes—

(a)  tunnels, ventilation shafts, emergency accessways, vehicle or pedestrian bridges, causeways, road-ferries, retaining walls, toll plazas, toll booths, security systems, bus lanes, transit lanes, transitways, transitway stations, rest areas and road related areas (within the meaning of the Road Transport Act 2013), and

(b)  associated public transport facilities for roads used to convey passengers by means of regular bus services, and

(c)  bus layovers that are integrated or associated with roads (whether or not the roads are used to convey passengers by means of regular bus services), and

(d)  bus depots, and

(e)  bus stops and bus shelters, and

(f)  traffic control facilities (within the meaning of Part 6 of the Transport Administration Act 1988), TfNSW road safety training facilities and safety works, and

(g)  premises used for the purposes of testing and inspecting heavy vehicles (within the meaning of the Road Transport Act 2013) under the TfNSW Heavy Vehicle Authorised Inspection Scheme.

2.109 Development permitted without consent—general

(1)  Development for the purpose of a road or road infrastructure facilities may be carried out by or on behalf of a public authority without consent on any land. However, such development may be carried out without consent on land reserved under the National Parks and Wildlife Act 1974 only if the development—

(a)  is authorised by or under the National Parks and Wildlife Act 1974, or

(b)  is, or is the subject of, an existing interest within the meaning of section 39 of that Act, or

(c)  is on land to which that Act applies over which an easement has been granted and is not contrary to the terms or nature of the easement.

(2)  Development for any of the following purposes may be carried out by or on behalf of a public authority without consent on land in a prescribed zone—

(a)  bus depots,

(b)  permanent road maintenance depots and associated infrastructure (such as garages, sheds, tool houses, storage yards, training facilities and workers’ amenities).

(3)  In this section and section 2.112, a reference to development for the purpose of road infrastructure facilities includes a reference to development for any of the following purposes if the development is in connection with a road or road infrastructure facilities—

(a)  construction works (whether or not in a heritage conservation area), including—

(i)  temporary buildings or facilities for the management of construction, if they are in or adjacent to a road corridor, and

(ii)  creation of embankments, and

(iii)  extraction of extractive materials and stockpiling of those materials, if—

(A)  the extraction and stockpiling are ancillary to road construction, or

(B)  the materials are used solely for road construction and the extraction and stockpiling take place in or adjacent to a road corridor, and

(iv)  temporary crushing or concrete batching plants, if they are used solely for road construction and are on or adjacent to a road corridor, and

(v)  temporary roads that are used solely during road construction,

(b)  emergency works or routine maintenance works,

Note—

See section 2.7(4) regarding emergency works and routine maintenance works on land to which clauses 10 and 11 of State Environmental Planning Policy (Coastal Management) 2018 apply.

(c)  alterations or additions to an existing road (such as widening, narrowing, duplication or reconstruction of lanes, changing the alignment or strengthening of the road),

(d)  environmental management works, if the works are in or adjacent to a road corridor.

2.110 Development permitted without consent—particular roads or road projects

Development for the purpose of any of the following roads or road projects (as described in Schedule 2) may be carried out by or on behalf of a public authority without consent—

(a)  the Eastern Distributor,

(b)  the Cross City Tunnel,

(c)  the Lane Cove Tunnel,

(d)  the Tugun Bypass,

(e)  the Liverpool—Parramatta Transitway,

(f)  the North-West Sydney Transitway Network.

2.111 Notification of carrying out of certain development under section 2.109 or 2.110 without consent

(1)  This section applies to development that may be carried out by or on behalf of a public authority without consent under section 2.109 or 2.110 for any of the following purposes—

(a)  car parks intended for use by commuters using regular bus services,

(b)  bus depots,

(c)  permanent road maintenance depots and associated infrastructure (such as garages, sheds, tool houses, storage yards, training facilities and workers’ amenities).

(2)  Before development to which this section applies is carried out on land, the public authority concerned must—

(a)  give written notice of the intention to carry out the development to the council for the area in which the land is located (unless the public authority is that council) and to the occupiers of adjoining land, and

(b)  take into consideration any response to the notice that is received within 21 days after giving the notice.

2.112 Development permitted with consent

(1)  Development for the purpose of a road or road infrastructure facilities may be carried out by any person with consent on land within a special area within the meaning of the Water NSW Act 2014.

(2)  Development for any of the following purposes may be carried out by any person with consent on land in a prescribed zone—

(a)  car parks intended for use by commuters using regular bus services,

(b)  bus depots,

(c)  permanent road maintenance depots and associated infrastructure (such as garages, sheds, tool houses, storage yards, training facilities and workers’ amenities),

(d)  retail or business premises in a car park (other than an at-grade car park) that is intended for use by commuters using regular bus services, but only if the premises are located on the ground floor of the car park or have street frontage,

(e)  retail or business premises in a public transport interchange (other than an at-grade interchange) on a route used to convey passengers by means of regular bus services, but only if the premises are located on the ground floor of the interchange or have street frontage.

(3)  Nothing in this section requires a public authority to obtain consent for development that is permitted without consent by section 2.109, 2.110 or 2.113.

2.113 Exempt development

(1)  Development for any of the following purposes is exempt development if it is carried out by or on behalf of a public authority or the Minister responsible for Crown roads (within the meaning of the Roads Act 1993) in connection with a road or road infrastructure facilities and complies with section 2.20—

(a)  erection, installation, maintenance, reconstruction or replacement of any of the following, and any associated landscaping works—

(i)  security fencing with a height above ground level (existing) of not more than 3.2m,

(ii)  safety barriers or systems, including Jersey barriers,

(iii)  directional, safety or other advisory signs relating to road works or the use of existing road infrastructure facilities,

(iv)  pedestrian and cyclist facilities (such as footpaths, street lighting, kerb adjustments and ramps, pedestrian fences, refuges, holding rails, and bollards),

(v)  slope stability works that are required for safety reasons and minor road safety improvements,

(vi)  minor road pavement or shoulder work (such as patching, grading, re-sheeting, sealing and re-sealing),

(vii)  street furniture (such as seats, bins and directional signs) and any associated kerb construction, access paths and ramps, lighting and signage that complies with AS:1428.2 and the Disability Standards,

(viii)  removal from or addition to existing traffic lights of items such as signal displays, loops or buttons,

(ix)  roadside facilities and rest areas, if the development does not involve the installation of toilets and involves no greater disturbance to the ground or vegetation than necessary,

(x)  street lighting, if any replacement involves the replacement of existing materials with similar materials only and if the lighting minimises light spill and artificial sky glow in accordance with the Lighting for Roads and Public Spaces Standard,

(xi)  pavement and road surface markings (such as bus lane markings), lane delineators, electric pavement lights, detection loops and traffic counters,

(xii)  kerb and guttering,

(xiii)  culverts, drains and other works to improve the quality or control of stormwater runoff,

(xiv)  public transport information display and ticketing systems,

(b)  repair or replacement of lighting, mechanical systems, electrical equipment or air monitoring equipment, replacement of screening of overhead bridges and removal of graffiti or debris,

(c)  emergency works to protect a road or road infrastructure facilities, the environment or the public, but only if they involve no greater disturbance to soil or vegetation than necessary,

(d)  upgrading or maintenance of landscaping, or vegetation management (such as weed spraying, slashing and pruning), that—

(i)  does not involve construction works, and

(ii)  involves the replacement (if any) of existing materials with similar materials only,

(e)  installation, replacement or maintenance of temporary structures (such as temporary bus stops, bus shelters or signs) that are associated with alternative transport arrangements necessitated by road works or road maintenance and that are removed as soon as practicable.

(2)  The construction of bus stops or bus shelters (including the construction or installation of any associated kerbs, access paths or ramps, lighting or signage) carried out by or on behalf of a public authority, or an accredited bus service operator providing regular bus services at those stops or shelters, is exempt development if—

(a)  the development complies with section 2.20, and

(b)  the stops or shelters—

(i)  have a height above the footpath of not more than 3.2 metres, and

(ii)  have only non-reflective finishes, and

(iii)  do not obstruct the line of sight of vehicular traffic or pedestrian traffic, and

(c)  the design of any associated kerbs, access paths and ramps, lighting and signage is in accordance with AS 1428 and the Disability Standards.

(3)  The display of commercial advertisements on bus stops or bus shelters is not exempt development under this section.

(4)  Development for the purposes of maintaining bus stops or bus shelters (including maintaining any associated kerbs, access paths or ramps, lighting or signage) by or on behalf of a public authority, or an accredited bus service operator providing regular bus services at those stops or shelters, is exempt development if the development—

(a)  complies with section 2.20, and

(b)  does not involve giving the shelter or stop a reflective finish, and

(c)  does not cause the design of any associated kerbs, access paths or ramps, lighting or signage to be inconsistent with AS 1428 or the Disability Standards.

(5)  Without limiting section 2.21, development for a purpose specified in Schedule 1 is exempt development if the development—

(a)  is carried out by or on behalf of an accredited bus service operator providing a regular bus service, and

(b)  is carried out on land within the boundaries of an existing bus depot, and

(c)  meets the development standards for the development specified in Schedule 1, and

(d)  complies with section 2.20.

(6)  In this section—

relevant development control plan means, in relation to a bus stop or bus shelter, a development control plan (as in force on the commencement of this Chapter) that has been adopted by the council for the local government area in which the stop or shelter is located.

2.114 Complying development

Development on land within the boundaries of an existing bus depot is complying development if it is carried out by or on behalf of a public authority, or an accredited bus service operator who is operating a regular bus service, complies with section 2.22 and consists of—

(a)  the addition to or alteration of office premises, a shed, a garage or a kiosk in existence before the commencement of this section, but only if, on completion of the addition or alteration—

(i)  the gross floor area of the office premises, shed, garage or kiosk is not more than 25% greater than it was immediately before the commencement of this section, and

(ii)  the height of the office premises, shed, garage or kiosk is not more than 12m above ground level (existing), and

(iii)  the office premises, shed, garage or kiosk is located no closer than 5m from any adjoining property boundary, or

(b)  the erection of a canteen, or kiosk, for the use of employees, but only if the canteen or kiosk—

(i)  has a gross floor area of not more than 100m², and

(ii)  has a height of not more than 12m above ground level (existing), and

(iii)  is designed, constructed and fitted-out in accordance with Australian Standard AS 4674—2004, Design, construction and fit-out of food premises, and

(iv)  is located no closer than 5m from any adjoining property boundary, or

(c)  the erection of an amenity facility (such as a toilet block or showers) for the use of employees, but only if the facility—

(i)  has a gross floor area of not more than 100m², and

(ii)  has a height of not more than 10m above ground level (existing), and

(iii)  is located no closer than 5m from any adjoining property boundary, or

(d)  the demolition of any of the following buildings—

(i)  a building having a gross floor area of not more than 250m²,

(ii)  a building the erection of which is exempt development under this Chapter,

(iii)  a building the erection of which is complying development under this section, or

(e)  the erection of a fence or a gate (including a security boom gate) having a height of not more than 5m above ground level (existing), or

(f)  the erection of a building consisting of a switch room, security booth, shed or the like, but only if—

(i)  the gross floor area of the building is not more than 500m², and

(ii)  the building is 1 storey high, and

(iii)  the height of the building is not more than 12m above ground level (existing), and

(iv)  the building is located no closer than 5m from any adjoining property boundary, or

(g)  the erection of a rainwater or grey water tank having a storage capacity of not more than 20,000 litres of water, or

(h)  the installation or replacement of paving, but only if—

(i)  any uncontaminated stormwater that traverses the new paving is directed to a stormwater management system, and

(ii)  in a case where it is proposed that there be any fuel stored or any refuelling on the paved area—the paved area is bunded so that any fuel spilled on the paved area is contained.

Note—

The relevant water supply authority should be contacted in relation to any controls on the disposal of contaminated liquids.

2.115 Complying development certificate conditions—additional conditions

A complying development certificate for development referred to in section 2.114 is subject to the following conditions (in addition to the conditions set out in section 2.23)—

(a)  suitable screens or barricades must be erected prior to any demolition, excavation or building work in order to control dust emissions from the site,

(b)  in the case of development referred to in section 2.114(b), (c) or (f)—the principal certifying authority for the development must be given the following survey certificates prepared by a registered land surveyor—

(i)  before any form work below the ground floor slab is completed or (if there is no such form work) before the concrete is poured for the ground floor slab—a survey certificate showing the location of the proposed building relative to the property boundaries,

(ii)  on completion of the lowest floor—a survey certificate confirming that the levels correspond to the levels shown on the plans in respect of which the complying development certificate is issued.

Subdivision 2 Development in or adjacent to road corridors and road reservations

2.116 Development other than road facilities on public roads

(1)  Development may be carried out with consent on a public road that is unzoned land for any purpose that may be carried out (either with or without consent) on land adjoining the road.

(2)  Development for any purpose may be carried out by a public authority without consent on a public road that is unzoned land.

2.117 Highway service centres in road corridors

(1)  Development for the purpose of a highway service centre may be carried out in a road corridor for a freeway, main road or tollway only with consent.

(2)  In this section, freeway, main road and tollway have the same meanings as in the Roads Act 1993.

2.118 Development on proposed classified road

(1)  Consent for development for any of the following purposes on land reserved for the purposes of a classified road (but before the land is declared to be a classified road) may be granted only with the concurrence of TfNSW—

(a)  subdivision that results in the creation of an additional lot with dwelling entitlements,

(b)  development with a capital investment value greater than $185,000,

(c)  development for the purpose of dwellings that are, or any other building that is, to be held under strata title.

(2)  Before determining a development application (or an application for modification of a consent) for development to which this section applies, the consent authority must—

(a)  give written notice of the application to TfNSW within 7 days after the application is made, and

(b)  take into consideration any response to the notice that is received within 21 days after the notice is given.

(3)  In deciding whether to grant concurrence to proposed development under this section, TfNSW must take the following matters into consideration—

(a)  the need to carry out development for the purposes of a classified road or a proposed classified road,

(b)  the imminence of acquisition of the land by TfNSW,

(c)  the likely additional cost to TfNSW resulting from the carrying out of the proposed development.

(4)  The consent authority must give TfNSW a copy of the determination of the application within 7 days after the determination is made.

(5)  The consent authority may grant consent to development to which this section applies without the concurrence of TfNSW if—

(a)  the consent authority has given the chief executive officer notice of the development application, and

(b)  21 days have passed since giving the notice and the chief executive officer has not granted or refused to grant the concurrence.

2.119 Development with frontage to classified road

(1)  The objectives of this section are—

(a)  to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b)  to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2)  The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—

(a)  where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b)  the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i)  the design of the vehicular access to the land, or

(ii)  the emission of smoke or dust from the development, or

(iii)  the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c)  the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

2.120 Impact of road noise or vibration on non-road development

(1)  This section applies to development for any of the following purposes that is on land in or adjacent to the road corridor for a freeway, a tollway or a transitway or any other road with an annual average daily traffic volume of more than 20,000 vehicles (based on the traffic volume data published on the website of TfNSW) and that the consent authority considers is likely to be adversely affected by road noise or vibration—

(a)  residential accommodation,

(b)  a place of public worship,

(c)  a hospital,

(d)  an educational establishment or centre-based child care facility.

(2)  Before determining a development application for development to which this section applies, the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this section and published in the Gazette.

(3)  If the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded—

(a)  in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am,

(b)  anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

(4)  In this section, freeway, tollway and transitway have the same meanings as they have in the Roads Act 1993.

2.121 Excavation in or immediately adjacent to corridors

(1)  This section applies to development that involves the penetration of ground to a depth of at least 3m below ground level (existing) on land that is the road corridor of any of the following roads or road projects (as described in Schedule 2)—

(a)  the Eastern Distributor,

(b)  the Cross City Tunnel,

(c)  the Lane Cove Tunnel,

(d)  the Tugun Bypass,

(e)  the Liverpool—Parramatta Transitway,

(f)  the North-West Sydney Transitway Network,

(g)  the Gore Hill Freeway,

(h)  the Western Distributor,

(i)  Southern Cross Drive,

(j)  the Cahill Expressway,

(k)  General Holmes Drive,

(l)  the Hume Motorway,

(m)  the M1 Pacific Motorway,

(n)  the M2,

(o)  the M4,

(p)  the M5,

(q)  the M4–M5 link,

(r)  the M7,

(s)  NorthConnex,

(t)  the Sydney Harbour Tunnel,

(u)  the King Georges Road Interchange,

(v)  the Pacific Highway.

(2)  Before determining a development application (or an application for modification of a consent) for development to which this section applies, the consent authority must—

(a)  give written notice of the application to TfNSW within 7 days after the application is made, and

(b)  take into consideration—

(i)  any response to the notice that is received within 21 days after the notice is given, and

(ii)  any guidelines that are issued by the Secretary for the purposes of this section and published in the Gazette, and

(iii)  any implications of the ground penetration for the structural integrity of the road or project, and

(iv)  any cost implications for the road or project of the ground penetration.

(3)  The consent authority must provide TfNSW with a copy of the determination of the application within 7 days after the determination is made.

2.122 Traffic-generating development

(1)  This section applies to development specified in Column 1 of the Table to Schedule 3 that involves—

(a)  new premises of the relevant size or capacity, or

(b)  an enlargement or extension of existing premises, being an alteration or addition of the relevant size or capacity.

(2)  In this section, relevant size or capacity means—

(a)  in relation to development on a site that has direct vehicular or pedestrian access to any road (except as provided by paragraph (b))—the size or capacity specified opposite that development in Column 2 of the Table to Schedule 3, or

(b)  in relation to development on a site that has direct vehicular or pedestrian access to a classified road or to a road that connects to a classified road where the access (measured along the alignment of the connecting road) is within 90m of the connection—the size or capacity specified opposite that development in Column 3 of the Table to Schedule 3.

(3)  A public authority, or a person acting on behalf of a public authority, must not carry out development to which this section applies that this Chapter provides may be carried out without consent unless the authority or person has—

(a)  given written notice of the intention to carry out the development to TfNSW in relation to the development, and

(b)  taken into consideration any response to the notice that is received from TfNSW within 21 days after the notice is given.

(4)  Before determining a development application for development to which this section applies, the consent authority must—

(a)  give written notice of the application to TfNSW within 7 days after the application is made, and

(b)  take into consideration—

(i)  any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, TfNSW advises that it will not be making a submission), and

(ii)  the accessibility of the site concerned, including—

(A)  the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and

(B)  the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and

(iii)  any potential traffic safety, road congestion or parking implications of the development.

(5)  The consent authority must give TfNSW a copy of the determination of the application within 7 days after the determination is made.

Subdivision 3 Facilities for electric vehicles

2.123 Premises used for recharging or exchanging batteries

Development for the purpose of premises used for recharging or exchanging the batteries of electric vehicles may be carried out by any person with consent on any of the following land adjoining a public road—

(a)  land in a prescribed zone,

(b)  land on which there is an existing service station, highway service centre or car washing facility.

2.124 Exempt development

The erection of an electric vehicle charger is exempt development if the erection of the charger complies with section 2.20 and the charger—

(a)  is for the private non-commercial use of an owner or occupier of the premises where it is erected, or

(b)  is located in compliance with AS/NZS 60079.10.1, Explosive gas atmospheres in an existing—

(i)  car park, or

(ii)  bus depot, or

(iii)  road maintenance depot, or

(iv)  service station, highway service centre or car washing facility.

Division 18 Sewerage systems

2.125 Definitions

In this Division—

biosolids treatment facility, sewage reticulation system, sewage treatment plant, sewerage system and water recycling facility have the same meanings as in the Standard Instrument.

Northside Storage Tunnel means—

(a)  a tunnel running from Thorn Street, Hunters Hill to the North Head Sewage Treatment Plant, Manly, and

(b)  a branch tunnel to Scotts Creek, and

(c)  branch bores to two outlets at Tarban Creek, namely, the Huntley’s Point submain and the Woolwich submain, and

(d)  a branch shaft to South Willoughby, and

(e)  a branch tunnel to Shelly Beach.

prescribed zone means any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  RU1 Primary Production,

(b)  RU2 Rural Landscape,

(c)  RU4 Primary Production Small Lots,

(d)  IN1 General Industrial,

(e)  IN3 Heavy Industrial,

(f)  SP1 Special Activities,

(g)  SP2 Infrastructure.

2.126 Development permitted with or without consent

(1)  Development is carried out in the prescribed circumstances if the development—

(a)  is carried out by or on behalf of a public authority, or

(b)  consists of the construction or operation of water industry infrastructure and, under the Water Industry Competition Act 2006, a network operator’s licence is required before the development may be carried out.

(2)  Development for the purpose of sewage treatment plants or biosolids treatment facilities may be carried out without consent on land in a prescribed zone in the prescribed circumstances.

(3)  In any other circumstances, development for the purpose of sewage treatment plants or biosolids treatment facilities may be carried out with consent on land in a prescribed zone.

(4)  Development for the purpose of water recycling facilities may be carried out without consent on land in a prescribed zone in the prescribed circumstances.

(5)  In any other circumstances, development for the purpose of water recycling facilities may be carried out with consent if—

(a)  the land on which the development is carried out is in a prescribed zone, or

(b)  the development is ancillary to an existing land use.

(6)  Development for the purpose of sewage reticulation systems may be carried out without consent on any land in the prescribed circumstances.

(7)  In any other circumstances, development for the purpose of sewage reticulation systems may be carried out with consent on any land.

(8)  Development for the purpose of water recycling facilities or sewage reticulation systems may be carried out on land reserved under the National Parks and Wildlife Act 1974 only if the development is authorised by or under that Act.

(9)  Development for the purpose of the Northside Storage Tunnel may be carried out by or on behalf of Sydney Water Corporation without consent on land in any of the following local government areas—

(a)  Hunters Hill,

(b)  Lane Cove,

(c)  Leichhardt,

(d)  Manly,

(e)  Mosman,

(f)  North Sydney,

(g)  Willoughby.

(10)  A reference in this Division to development for the purpose of a sewerage system of any kind includes a reference to development for any of the following purposes if the development is in connection with the sewerage system—

(a)  pumping stations, pipelines and tunnels,

(b)  temporary storage, including reservoirs, and transfer works to reticulate sewage or treated effluent,

(c)  effluent and biosolids reuse schemes,

(d)  sewage or effluent treatment systems, including artificial wetlands,

(e)  power supply to the development,

(f)  energy generating works,

(g)  construction works,

(h)  routine maintenance works,

(i)  environmental management works,

(j)  maintenance depots.

(11)  In this section, network operator’s licence and water industry infrastructure have the same meanings as in the Water Industry Competition Act 2006.

2.127 Exempt development

Development for any of the following purposes carried out by or on behalf of a public authority is exempt development if the development is in connection with a sewerage system and complies with section 2.20—

(a)  emergency works or emergency maintenance to protect a sewerage system, if they involve no greater soil or vegetation disturbance than necessary,

(b)  routine maintenance or associated landscaping works, including the following, if any disturbance to soil or vegetation is no greater than necessary—

(i)  removal of litter, silt or debris from any part of the sewerage system,

(ii)  harvesting of macrophytes associated with a treatment system,

(iii)  excavations to expose a pipeline for inspection or testing and the creation of temporary stockpiles associated with pipeline maintenance or replacement,

(iv)  flushing or relining of a pipeline if access is by a manhole,

(v)  maintenance of access tracks or fire trails (including access tracks along or to corridors, pipelines or other infrastructure),

(vi)  painting, servicing or minor alteration of existing equipment,

(vii)  alterations to existing enclosures or buildings,

(viii)  maintenance or replacement of sewerage system components that does not increase capacity (or increases capacity only to a minimal extent),

(c)  installation or maintenance of a cathodic protection system or trunk drainage channel pipeline marker,

(d)  works for safety or security, such as—

(i)  construction, maintenance or realignment of security fencing that has a height above ground level (existing) of not more than 3.2m, or

(ii)  temporary fencing around work sites or around open excavations, or

(iii)  maintenance of existing gates or installation of new gates, or

(iv)  slope stability works,

(e)  temporary structures associated with maintenance projects, but only if the structure has only one storey.

Division 18A Shooting ranges

2.128 Definitions

In this Division—

lawful shooting range means a shooting range that—

(a)  is approved under the Firearms Act 1996 and the regulations under that Act, and

(b)  was not established at a time when the carrying out of development on the land concerned for the purposes of a shooting range was prohibited.

range danger area means an area adjoining that part of a shooting range where firearm shooting takes place (together with relevant air space) within which there may be a danger to persons or property arising from firearm shooting.

shooting range means a recreation facility (outdoor) or an emergency services facility (within the meaning of Division 6) used for the purposes of any firearm shooting competition, training or practice, and includes the range danger area.

2.129 Shooting ranges permissible with consent

(1)  Development may be carried out by any person with consent—

(a)  for the purposes of a shooting range on land on which there is a lawful shooting range, or

(b)  for the purposes of a range danger area on land adjoining any such lawful shooting range.

(2)  This section does not require consent to carry out development on land if that development could, but for this section, be carried out on that land without consent (including under section 2.130 or 2.131).

2.130 Development carried out by NSW Police Force

Development may be carried out by or on behalf of the NSW Police Force without consent for the purposes of a shooting range on land on which there is a lawful shooting range.

2.131 Exempt development

(1)  This section applies to land that is part of or adjoining a lawful shooting range if the land is in any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  RU1 Primary Production,

(b)  RU2 Rural Landscape,

(c)  RU3 Forestry,

(d)  RU4 Primary Production Small Lots,

(e)  SP1 Special Activities,

(f)  SP2 Infrastructure,

(g)  RE1 Public Recreation,

(h)  RE2 Private Recreation,

(i)  E2 Environmental Conservation,

(j)  E3 Environmental Management.

(2)  The use of land to which this section applies for the purposes of a range danger area (including the erection of the fencing and signs required by this subsection) is exempt development if—

(a)  secure fencing is erected to prevent access to the range danger area and that fencing—

(i)  is constructed using post and wire or post and rail (and not of masonry), and

(ii)  if on bush fire prone land—is constructed of non-combustible material or hardwood, and

(iii)  if it is electrical fencing—is constructed in accordance with AS/NZS 3014:2003Electrical installations—Electric fences, and

(iv)  if it is on a flood control lot (within the meaning of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008)—does not redirect or interrupt the flow of surface or ground water on the lot, and

(b)  signage is affixed to that fencing—

(i)  so that it is located regularly along the fencing and each sign can be clearly seen from each adjacent sign with a sign also being at each entrance in the fencing, and

(ii)  each sign contains the words “Firearms range—Danger keep out” (or similar) in font that is clearly legible to a person approaching the fence from outside the range danger area.

Note 1—

Development cannot be carried out on land without the consent of the owner of the land.

Note 2—

The approval under the Firearms Act 1996 for the shooting range may specify additional requirements that must be complied with in relation to a range danger area.

Division 19 Soil conservation works

2.132 Definition

In this Division—

soil conservation works means development necessary—

(a)  to avoid, manage or mitigate the effects of salinity, acid sulfate soils, acid soils or sodic soils, or

(b)  to avoid, manage or mitigate the effects of erosion.

2.133 Development permitted without consent

(1)  Development for the purpose of soil conservation works may be carried out by or on behalf of a public authority without consent on any land.

(2)  A reference in this section to development for the purpose of soil conservation works includes a reference to development for any of the following purposes if the development is in connection with soil conservation works—

(a)  construction works,

(b)  routine maintenance works,

(c)  emergency works, including works associated with landslides,

(d)  environmental management works.

Division 19A State sport and recreation centres

2.134 Definition

In this Division—

State sport and recreation centre means the land identified as the subject land on the following maps—

(a)  State Environmental Planning Policy (Infrastructure) 2007 Sports and Recreation Berry Land Application Map,

(b)  State Environmental Planning Policy (Infrastructure) 2007 Sports and Recreation Borambola Land Application Map,

(c)  State Environmental Planning Policy (Infrastructure) 2007 Sports and Recreation Broken Bay Land Application Map,

(d)  State Environmental Planning Policy (Infrastructure) 2007 Sports and Recreation Jindabyne Land Application Map,

(e)  State Environmental Planning Policy (Infrastructure) 2007 Sports and Recreation Lake Ainsworth Land Application Map,

(f)  State Environmental Planning Policy (Infrastructure) 2007 Sports and Recreation Lake Burrendong Land Application Map,

(g)  State Environmental Planning Policy (Infrastructure) 2007 Sports and Recreation Lake Keepit Land Application Map,

(h)  State Environmental Planning Policy (Infrastructure) 2007 Sports and Recreation Milson Island Land Application Map,

(i)  State Environmental Planning Policy (Infrastructure) 2007 Sports and Recreation Myuna Land Application Map,

(j)  State Environmental Planning Policy (Infrastructure) 2007 Sports and Recreation Sydney Academy Land Application Map.

2.135 Development permitted with or without consent

(1)  Development for any of the following purposes may be carried out by or on behalf of the State Sporting Venues Authority with consent on land comprised in a State sport and recreation centre—

agriculture, animal boarding or training establishments, backpackers’ accommodation, bed and breakfast accommodation, boat launching ramps, boat sheds, camping grounds, community facilities, entertainment facilities, farm stay accommodation, function centres, information and education facilities, kiosks, markets, medical centres, public administration buildings, recreation facilities (indoor), recreation facilities (major), recreation facilities (outdoor), restaurants or cafes, take away food or drink premises, water recreation structures

(2)  Nothing in subsection (1) requires consent to be granted for the carrying out of development on land comprised in a State sport and recreation centre if that development could, but for that subsection, be carried out on the land without consent.

(3)  Development for any of the following purposes may be carried out by or on behalf of the State Sporting Venues Authority without consent on land comprised in a State sport and recreation centre—

environmental facilities, recreation areas

Division 20 Stormwater management systems

2.136 Definition

In this Division—

stormwater management system means—

(a)  works for the collection, detention, harvesting, distribution or discharge of stormwater (such as channels, aqueducts, pipes, drainage works, embankments, detention basins and pumping stations), and

(b)  stormwater quality control systems (such as waste entrapment facilities, artificial wetlands, sediment ponds and riparian management), and

(c)  stormwater reuse schemes.

2.137 Development permitted without consent

(1)  Development for the purpose of stormwater management systems may be carried out by or on behalf of a public authority without consent on any land.

(2)  A reference in this section to development for the purpose of stormwater management systems includes a reference to development for any of the following purposes if the development is in connection with a stormwater management system—

(a)  construction works,

(b)  routine maintenance works, including maintenance dredging to remove sediment build-up in a stormwater canal or at exit points into natural waterways that affects the efficiency of the stormwater management system,

(c)  environmental management works,

(d)  buildings, including buildings containing amenities for staff, that have a height of not more than 12m above ground level (existing).

Note—

The term building is defined in the Environmental Planning and Assessment Act 1979 as including any structure.

2.138 Development permitted with consent

Development for the purpose of a stormwater management system may be carried out by any person with consent on any land.

2.139 Exempt development

(1)  Development for any of the following purposes carried out by or on behalf of a public authority is exempt development if the development is in connection with a stormwater management system—

(a)  emergency works or emergency maintenance to protect a stormwater management system,

(b)  routine maintenance or associated landscaping works, including the following—

(i)  removal of litter, silt or debris from any part of the stormwater management system,

(ii)  harvesting of macrophytes associated with a treatment system,

(iii)  excavations to expose a pipeline for inspection or testing and temporary stockpiles associated with pipeline maintenance or repair,

(iv)  flushing or relining of a pipeline where access is by a manhole,

(v)  maintenance of access tracks along corridors, pipelines and other infrastructure,

(vi)  painting, servicing or minor alteration of existing equipment,

(vii)  alterations to existing enclosures or buildings,

(c)  installation, maintenance or replacement of a cathodic protection system or trunk drainage channel pipeline marker,

(d)  works for safety or security, such as—

(i)  construction, maintenance or realignment of security fencing that has a height above ground level (existing) of not more than 3.2m, or

(ii)  temporary fencing around work sites or around open excavations, or

(iii)  maintenance of existing gates or installation of new gates,

(e)  temporary structures associated with maintenance projects, but only if the structure has only one storey.

(2)  Development is exempt development under this section only if the development—

(a)  complies with section 2.20, and

(b)  involves no greater soil or vegetation disturbance than necessary, and

(c)  does not involve any increase in stormwater drainage or run-off from the site concerned.

Division 21 Telecommunications and other communication facilities

Note—

The installation of telecommunications facilities identified as low impact facilities by a determination made under clause 6(3) of Schedule 3 to the Telecommunications Act 1997 of the Commonwealth may be exempt under that Schedule from State laws.

2.140 Definitions

In this Division and Schedule 4—

ancillary facilities to a telecommunications facility means any of the following—

(a)  safety rails, fences or guards,

(b)  staircases or ladders,

(c)  steel walkways,

(d)  spreader beams supporting shelters,

(e)  screens or shrouds,

(f)  cable trays,

(g)  pole, rail or pedestal mounts,

(h)  electromagnetic energy, safety or operational signage,

(i)  anti-climbing devices,

(j)  power supply such as cabling, standby generators or small solar arrays,

(k)  raised platforms on flood liable land,

(l)  band-pass filters that pass radio frequency in both directions through a common connector while providing isolation between ports,

For example—

A triplexer, splitter or combiner.

(m)  remote radio transceivers that connect to an operator radio control panel through an electrical or wireless interface,

For example—

A remote radio unit or remote radio head.

(n)  low-noise amplifiers mounted to or near the antenna in mobile masts or base transceiver stations.

For example—

A tower mounted amplifier or mast head amplifier.

array of antennas means two or more antennas connected and arranged in a regular structure to form a single antenna.

carrier has the same meaning as in the Telecommunications Act 1997 of the Commonwealth.

Civil Aviation Safety Authority means the Civil Aviation Safety Authority established under the Civil Aviation Act 1988 of the Commonwealth.

co-location purpose means for the purpose of placing the telecommunications facilities of two or more carriers on the same support structure.

directional antenna means an antenna that focuses a narrow beam in a single specific direction, and includes an array of such antennas.

Electromagnetic Radiation Standard means the Radiocommunications (Electromagnetic Radiation — Human Exposure) Standard 2014 made under section 162 of the Radiocommunications Act 1992 of the Commonwealth.

emergency, in relation to a telecommunications facility, means circumstances in which the facility must be installed without delay to protect—

(a)  the integrity of a telecommunications network or a facility, or

(b)  the health or safety of persons, or

(c)  the environment, or

(d)  property, or

(e)  the maintenance of an adequate level of service.

equivalent land use zone, in relation to a named land use zone, means a land use zone that is equivalent to the named land use zone.

Note—

Land use zones that are named in this Chapter are those set out in the Standard Instrument. See also section 2.4 for the meaning of a land use zone that is equivalent to a named land use zone.

fibre access node means a facility that houses equipment for the purposes of a fibre to the premises distribution network.

fibre to the premises distribution network means an extensive network of optical fibre cables reaching all the way to the particular premises to which communications services are provided.

heritage item means a local heritage item or a State heritage item.

interconnect point means a facility that contains connection points for connection to a distribution network by wholesale or retail telecommunications service providers.

maintenance activities, in relation to a telecommunications facility, means painting, restoration or minor replacement of materials, elements, components, equipment or fixtures that comprise the facility for the purposes of maintaining or ensuring the proper functioning of the facility.

microcell installation means an installation that comprises one or more antennas and associated equipment cabinets for use in supplementing a mobile phone network in heavy usage areas by providing localised additional coverage or extra call capacity (or both).

Mobile Phone Base Station Code means the Mobile Phone Base Station Deployment CodeC564:2020 published by Communications Alliance Ltd.

omnidirectional antenna means an antenna that sends or receives signals equally in all directions, and includes—

(a)  an array of such antennas, and

(b)  such an antenna for repeater installations, global positioning systems and the like.

panel antenna means a directional antenna that is flat and has a panel-like appearance.

premises connection device means an external or pole mounted enclosure used in fibre to the premises distribution networks.

Radiation Protection Standard means the Radiation Protection Standard entitled Maximum Exposure Levels to Radiofrequency Fields—3 kHz to 300 GHz (2002, Radiation Protection Series No 3, as republished in 2016) published by the Australian Radiation Protection and Nuclear Safety Agency.

riser pole means a structure, involving a support and post, attached to a building and extending vertically to facilitate a connection to premises by providing a safe clearance height.

subscriber connection means an installation for the sole purpose of connecting premises to a telecommunications network.

support mount, in relation to a telecommunications facility, means a structure to support the facility, but does not include a tower.

telecommunications facility means—

(a)  any part of the infrastructure of a telecommunications network, or

(b)  any line, cable, optical fibre, fibre access node, interconnect point, equipment, apparatus, tower, mast, antenna, dish, tunnel, duct, hole, pit, pole or other structure in connection with a telecommunications network, or

(c)  any other thing used in or in connection with a telecommunications network.

telecommunications network has the same definition as it has in the Standard Instrument.

Note—

The Standard Instrument defines telecommunications network as follows—

telecommunications network means a system, or series of systems, that carries, or is capable of carrying, communications by means of guided or unguided electromagnetic energy, or both.

tower means a freestanding ground-based structure that supports a telecommunications facility at a height where it can satisfactorily send and receive radio waves, but does not include the facility.

yagi antenna means an antenna that radiates in only one direction, consisting of one or two dipoles connected to the transmitting or receiving circuit, and several insulated dipoles all parallel and about equally spaced in a line.

s 2.140: Am 2022 (132), Sch 1[8]–[10].

2.141 Development permitted without consent

(1)  Development for the purposes of telecommunications facilities (including radio facilities) may be carried out by a public authority without consent on any land.

(2)  Before a public authority undertakes the development of a tower or mast under this section, the public authority must—

(a)  give written notice of the authority’s intention to carry out the development to—

(i)  if the authority is not the council of the area in which the development will be carried out—the council of the area, and

(ii)  the occupiers of land adjoining the proposed development, and

(b)  take into consideration any response to the notice that is received within 21 days after the notice is given, and

(c)  take into consideration any guidelines concerning site selection, design, construction or operating principles for telecommunications facilities that are issued by the Secretary for the purposes of this section and published in the Gazette.

(2A)  Subsection (2)(a)(ii) does not apply if the proposed development will be located more than 2km from the boundary of the adjoining land.

(3)  Development for the purpose of co-locating telecommunications network cables on electricity or cable poles or with underground electricity or cable facilities, other than subscriber connections, may be carried out by any person without consent on any land.

(4)  To avoid doubt, development does not cease to be development permitted under subsection (3) if a cable is not co-located on a pole for safety reasons.

(5)  Development for the purpose of subscriber connections, other than development of a kind specified in section 2.144, may be carried out by any person without consent on any land unless the subscriber’s premises, or any land traversed by the connection, is a State or local heritage item or is located in a heritage conservation area.

(6)  Development for the purposes of an underground telecommunications network cable, other than subscriber connections, may be carried out by any person without consent on any land if the existing electricity or telecommunications network cable facilities are located underground.

(7)  Before carrying out development to which subsection (6) applies, a person must—

(a)  give written notice of the intention to carry out the development to the council for the area in which the land is located, and

(b)  take into consideration any response to the notice that is received within 21 days after the notice is given.

(8)  Development for the purposes of a new or existing fibre access node (including the extension of the area of an existing fibre access node or the installation of equipment, plant or structures in an existing fibre access node or an associated building) may be carried out by any person without consent on any land.

(9)  Before carrying out development to which subsection (8) applies that is not a project to which Part 3A of the Act applies or State significant infrastructure, a person must—

(a)  give written notice of the intention to carry out the development to the council for the area in which the land is located and to the occupiers of adjoining and adjacent land, and

(b)  take into consideration any response to the notice that is received within 21 days after the notice is given.

s 2.141: Am 2022 (132), Sch 1[11]; 2022 (441), Sch 1[6] [7].

2.142 Development permitted without consent—submarine cables

Development for the purpose of submarine telecommunication cables (and any attached devices) laid on or under the seabed beneath the coastal waters of the State and below the mean high water mark, being cables used for communications between Australia and other countries, may be carried out by any person without consent on any land.

2.143 Development permitted with consent

(1)  Development for the purposes of telecommunications facilities, other than development in section 2.141 or development that is exempt development under section 2.20 or 2.144, may be carried out by any person with consent on any land.

(2)  Before determining a development application for development to which this section applies, the consent authority must take into consideration any guidelines concerning site selection, design, construction or operating principles for telecommunications facilities that are issued by the Secretary for the purposes of this section and published in the Gazette.

2.144 Exempt development

(1)  Development carried out by or on behalf of any person on land in connection with a telecommunications facility is exempt development if—

(a)  it is for any of the purposes specified in Part 1 of Schedule 4, and

(b)  it meets the development standards (if any) for the development specified in Part 1 of Schedule 4, and

(c)  it complies with section 2.20, and

(d)  the land on which the development is proposed to be carried out is not located in an environmentally sensitive area within the meaning of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, and

(e)  in the case of development that is development of a kind to which the Mobile Phone Base Station Code applies—

(i)  it complies with that Code, and

(ii)  it is designed, installed and operated so that the maximum human exposure levels to radio frequency emissions comply with the Radiation Protection Standard, and

Note—

If the development is for a co-location purpose, then the new telecommunications facility must be designed, installed and operated so that the resultant cumulative levels of radio frequency emissions of the co-located telecommunications facilities are within the maximum human exposure levels set out in the Radiation Protection Standard.

(f)  in the case of development for the purpose of boring or directional drilling in connection with a telecommunications facility or for the purpose of an underground conduit or cable deployed by either trench or direct burial—

(i)  access to business premises is not restricted between the hours of 7 am and 5 pm, Monday to Friday, or such other hours agreed to by the relevant local government authority (ie, any hours within the range of 7 am to 5 pm), and

(ii)  where the development is on land in Zone R1, R2, R3, R4, R5 or RU5 or an equivalent land use zone—not more than 100 metres of excavation is left open at any time and vehicle access to each affected property is not lost for more than 8 hours in total, and

(g)  it complies with any relevant site and height requirements specified by the Civil Aviation Regulations 1988, Airports (Protection of Airspace) Regulations 1996 or Defence (Areas Control) Regulations 1989 of the Commonwealth, and

Note

See the Advisory Circular 139-08(0) entitled Reporting of Tall Structures issued by the Civil Aviation Safety Authority in 2005 concerning these requirements.

(h)  it does not penetrate any obstacle limitation surface shown on any relevant Obstacle Limitation Surface Plan that has been prepared by the operator of an aerodrome or airport operating within 30 kilometres of the proposed development and reported to the Civil Aviation Safety Authority, and

(2)  Despite subsection (1), development for any of the purposes specified in items 1, 2 or 3 of Part 1 of Schedule 4 is exempt development only if it is carried out by or on behalf of a public authority, a carrier or an emergency services organisation.

2.145 Complying development

(1)  Development carried out by or on behalf of any person on land in connection with a telecommunications facility (other than exempt development under section 2.21 or 2.144) is complying development if—

(a)  it is for any of the purposes specified by Part 2 of Schedule 4, and

(b)  it meets the development standards (if any) for the development specified in Part 2 of Schedule 4, and

(c)  it complies with the requirements of this section and section 2.22.

(2)  To be complying development, the development—

(a)  must not be carried out on land located in an environmentally sensitive area within the meaning of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, and

(b)  in the case of development that involves the installation of equipment—must be carried out in accordance with the applicable specifications (if any) of the manufacturer for the installation of such equipment, and

(c)  in the case of development that is development of a kind to which the Mobile Phone Base Station Code applies—must—

(i)  comply with that Code, and

(ii)  be designed, installed and operated so that the maximum human exposure levels to radio frequency emissions comply with the Radiation Protection Standard, and

Note—

If the development is for a co-location purpose, then the new telecommunications facility must be designed, installed and operated so that the resultant cumulative levels of radio frequency emissions of the co-located telecommunications facilities are within the maximum human exposure levels set out in the Radiation Protection Standard.

(d)  must comply with any relevant site and height requirements specified by the Civil Aviation Regulations 1988, Airports (Protection of Airspace) Regulations 1996 or Defence (Areas Control) Regulations 1989 of the Commonwealth, and

Note

See the Advisory Circular 139-08(0) entitled Reporting of Tall Structures issued by the Civil Aviation Safety Authority in 2005 concerning these requirements.

(e)  must not penetrate any obstacle limitation surface shown on any relevant Obstacle Limitation Surface Plan that has been prepared by the operator of an aerodrome or airport operating within 30 kilometres of the proposed development and reported to the Civil Aviation Safety Authority, and

(3)  Despite subsection (1), development for any of the purposes specified in items 1, 2 or 3 of Part 2 of Schedule 4 is complying development only if it is carried out by or on behalf of a public authority, a carrier or an emergency services organisation.

(4)  Before carrying out development involving the erection of a tower or mast under this section, a person must—

(a)  give written notice of the person’s intention to carry out the development to—

(i)  if the authority is not the council of the area in which the development will be carried out—the council of the area, and

(ii)  the occupiers of land adjoining the land on which the development will be carried out, and

(b)  consider all responses to the notice received within 21 days after the notice is given.

s 2.145: Am 2022 (132), Sch 1[12].

2.146 Complying development certificates—additional conditions

A complying development certificate for development that is complying development under this Division is subject to the following conditions—

(a)  the conditions set out in section 2.23,

(b)  if the development is part of infrastructure for a public mobile phone network—the principal certifying authority must, before work commences, be given—

(i)  in the case of development that will produce electromagnetic radiation—a report in the format required by the Australian Radiation Protection and Nuclear Safety Agency that shows the predicted levels of electromagnetic energy surrounding the development comply with the safety limits imposed by the Australian Communications and Media Authority and the Electromagnetic Radiation Standard, and

(ii)  a report showing compliance with the Mobile Phone Base Station Code.

2.147 Relationship of this Division with Telecommunications Act 1997 of Commonwealth

(1)  If a carrier is authorised to carry out development for a particular purpose by Division 2, 3 or 4 of Part 1 of Schedule 3 to the Telecommunications Act 1997 of the Commonwealth, this Division does not authorise or permit the carrier to carry out development for that purpose otherwise than in accordance with the authority given by that Act.

(2)  If the development that a carrier proposes to carry out is not authorised by Division 2, 3 or 4 of Part 1 of Schedule 3 to the Telecommunications Act 1997 of the Commonwealth, nothing in this Division prevents the carrier from carrying out development for that purpose in a manner authorised or permitted by this Division.

2.148 Application of amendments made by State Environmental Planning Policy (Infrastructure) Amendment (Telecommunications Facilities) 2010

A consent authority is not required to have regard to guidelines issued for the purposes of section 2.143(2) (as inserted by State Environmental Planning Policy (Infrastructure) Amendment (Telecommunications Facilities) 2010) in relation to development applications made, but not finally determined, before the commencement of that subsection.

Division 22 Travelling stock reserves

2.149 Definitions

In this Division—

local board means a local board established under Division 2 of Part 3 of the Local Land Services Act 2013.

travelling stock reserve has the same meaning as in the Local Land Services Act 2013.

2.150 Development permitted without consent

(1)  Development for the purpose of maintaining or managing a travelling stock reserve, other than development of a kind specified in section 2.151, may be carried out by or on behalf of a public authority or a local board without consent on land within the reserve.

(2)  Subsection (1) does not authorise the carrying out of development for any of the following purposes—

(a)  the erection of a building or the reconstruction or alteration of a building so as materially to affect its design or purpose,

(b)  any development designed to change the use or purpose of the reserve.

2.151 Development permitted with consent

Development for any of the following purposes may be carried out with consent by or on behalf of a public authority or a local board on land within a travelling stock reserve—

(a)  the erection of buildings, or the reconstruction or alteration of buildings in such a way as to materially affect their design or purpose,

(b)  any development designed to change the use or purpose of the travelling stock reserve.

Division 23 Waste or resource management facilities

2.152 Definitions

In this Division—

prescribed zone means any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  RU1 Primary Production,

(b)  RU2 Rural Landscape,

(c)  IN1 General Industrial,

(d)  IN3 Heavy Industrial,

(e)  SP1 Special Activities,

(f)  SP2 Infrastructure.

resource recovery facility, waste disposal facility, waste or resource management facility and waste or resource transfer station have the same meanings as in the Standard Instrument.

2.153 Development permitted with consent

(1)  Development for the purpose of waste or resource management facilities, other than development referred to in subsection (2), may be carried out by any person with consent on land in a prescribed zone.

(2)  Development for the purposes of a waste or resource transfer station may be carried out by any person with consent on—

(a)  land in a prescribed zone, or

(b)  land in any of the following land use zones or equivalent land use zones—

(i)  B5 Business Development,

(ii)  B6 Enterprise Corridor,

(iii)  IN2 Light Industrial,

(iv)  IN4 Working Waterfront, or

(c)  land on which development for any of the following purposes is permitted with consent under any environmental planning instrument—

(i)  industry,

(ii)  business premises or retail premises,

(iii)  freight transport facilities.

(3)  Development for the purpose of the recycling of construction and demolition material, or the disposal of virgin excavated natural material (within the meaning of Schedule 1 to the Protection of the Environment Operations Act 1997) or clean fill, may be carried out by any person with consent on land on which development for the purpose of industries, extractive industries or mining may be carried out with consent under any environmental planning instrument.

2.154 Exempt development

(1)  Any of the following development is exempt development if the development is in connection with a waste or resource management facility—

(a)  emergency works to protect a waste or resource management facility,

(b)  development for the purposes of routine maintenance or associated landscaping works, including the following—

(i)  works carried out to maintain access tracks,

(ii)  removal of litter or debris from stormwater quality control systems,

(c)  development for the purposes of investigations (including geotechnical and other testing, surveying and sampling) in the circumstances specified in Schedule 1,

(d)  internal alterations to buildings in the circumstances specified in Schedule 1, but only if the alterations do not increase the capacity of the facility (or increase the capacity only to a minimal extent),

(e)  demolition and replacement of weighbridges,

(f)  installation of shelters over weighbridges,

(g)  demolition and replacement of storage sheds.

(2)  Development is exempt development under this section only if the development—

(a)  complies with section 2.20, and

(b)  involves no greater soil or vegetation disturbance than necessary, and

(c)  does not involve any increase in stormwater drainage or run-off from the site concerned.

2.155 Exempt development—disposal of drug exhibit waste

(1)  Development for the purposes of the incineration of drug exhibit waste in a facility that has the written approval of the NSW Police Force is exempt development if the development is carried out in compliance with the following requirements—

(a)  the only drug exhibit waste incinerated is waste received from the NSW Police Force,

(b)  that waste is contained in drug bags made of polyethylene, or polypropylene, that is chlorine-free,

(c)  the combustion chamber used for the incineration of that waste and its casing is as airtight as reasonably possible,

(d)  during the incineration of that waste in that combustion chamber, combustion gases within the chamber are at or above 850°C for a minimum of 2 seconds,

(e)  the plant used for the incineration is fitted with monitoring and control equipment to monitor and ensure compliance with paragraph (d) and that equipment is maintained in working condition and used during any incineration of that waste,

(f)  no more than 50 kilograms of that waste is placed into, or otherwise contained in, the combustion chamber for incineration at any one time.

(2)  In this section—

drug exhibit waste means any prohibited drug or prohibited plant—

(a)  that is listed in Schedule 1 to the Drug Misuse and Trafficking Act 1985, and

(b)  that was collected, seized or confiscated by, or surrendered to, the NSW Police Force, and

(c)  that is no longer required by the NSW Police Force.

Note—

Part 3A of the Drug Misuse and Trafficking Act 1985 contains provisions about the destruction of exhibits (including the disposal of prohibited plants and prohibited drugs) and requires the destruction of exhibits to occur in the presence of police officers.

2.156 Additional permitted uses—Castlereagh Liquid Waste Disposal Depot

(1)  In this section—

depot means the Castlereagh Liquid Waste Disposal Depot.

depot site means the land shown edged heavy black on the map marked “State Environmental Planning Policy (Infrastructure) 2007—Castlereagh Liquid Waste Disposal Depot” held in the head office of the Department of Planning and Environment.

(2)  Development for any of the following purposes may be carried out by any person without consent on the depot site—

(a)  monitoring or mitigating pollution as a result of the operation of the depot,

(b)  rehabilitation of land.

(3)  Development for any of the following purposes may be carried out by any person with consent on the depot site—

(a)  disposal of inert waste,

(b)  resource recovery or recycling facilities.

2.157 Determination of development applications

(1)  In determining a development application for development for the purpose of the construction, operation or maintenance of a landfill for the disposal of waste, including putrescible waste, the consent authority must take the following matters into consideration—

(a)  whether there is a suitable level of recovery of waste, such as by using alternative waste treatment or the composting of food and garden waste, so that the amount of waste is minimised before it is placed in the landfill, and

(b)  whether the development—

(i)  adopts best practice landfill design and operation, and

(ii)  reduces the long term impacts of the disposal of waste, such as greenhouse gas emissions or the offsite impact of odours, by maximising landfill gas capture and energy recovery, and

(c)  if the development relates to a new or expanded landfill—

(i)  whether the land on which the development is located is degraded land such as a disused mine site, and

(ii)  whether the development is located so as to avoid land use conflicts, including whether it is consistent with any regional planning strategies or locational principles included in the publication EIS Guideline: Landfilling (Department of Planning, 1996), as in force from time to time, and

(d)  whether transport links to the landfill are optimised to reduce the environmental and social impacts associated with transporting waste to the landfill.

(2)  In this section—

putrescible waste means general solid waste (putrescible) within the meaning of clause 49 of Schedule 1 to the Protection of the Environment Operations Act 1997.

Division 24 Water supply systems

2.158 Definitions

In this Division—

prescribed zone means any of the following land use zones or a land use zone that is equivalent to any of those zones—

(a)  RU1 Primary Production,

(b)  RU2 Rural Landscape,

(c)  RU4 Primary Production Small Lots,

(d)  IN1 General Industrial,

(e)  IN3 Heavy Industrial,

(f)  SP1 Special Activities,

(g)  SP2 Infrastructure.

water reticulation system has the same meaning as in the Standard Instrument but also includes water supply reservoirs.

water storage facility, water supply system and water treatment facility have the same meanings as in the Standard Instrument.

2.159 Development permitted without consent

(1)  Development for the purpose of water reticulation systems may be carried out by or on behalf of a public authority without consent on any land.

(2)  Development for the purpose of water storage facilities may be carried out without consent if it is carried out by or on behalf of—

(a)  any public authority on land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone SP1 Special Activities, Zone SP2 Infrastructure or an equivalent land use zone, or

(b)  Water NSW on land within the Sydney catchment area within the meaning of the Water NSW Act 2014.

(3)  A reference in subsection (2) to development for the purpose of water storage facilities, includes a reference to development for any of the following purposes—

(a)  catchment management works,

(b)  recreation areas associated with a water storage facility.

(4)  Development for the purpose of water treatment facilities may be carried out by or on behalf of a public authority without consent on land in a prescribed zone.

(5)  Development for the purpose of a water supply system may be carried out on land reserved under the National Parks and Wildlife Act 1974 only if it is authorised by or under that Act.

(6)  In this Division, a reference to development for the purpose of a water supply system of any kind includes a reference to development for any of the following purposes if the development is in connection with the water supply system—

(a)  dams, reservoirs, weirs, levees, spillways and fishways,

(b)  catchment management works,

(c)  groundwater investigation works, groundwater bore stations, borefields, minewater works and the like,

(d)  access ways,

(e)  water intakes, pumping stations, pipelines, channels, tunnels, canals and aqueducts,

(f)  gauging and monitoring equipment,

(g)  power supply to the water supply system,

(h)  hydro-electric power generation equipment and associated connections to the electricity network,

(i)  construction works,

(j)  emergency works and routine maintenance works,

(k)  environmental management works,

(l)  schemes for the reuse of water treatment residuals,

(m)  maintenance depots.

(7)  Development for any of the following purposes may be carried out by or on behalf of Water NSW without consent on any land—

(a)  investigations into the availability of groundwater (including mine water), extraction of groundwater or mine water, and associated water reticulation systems,

(b)  development to enable access to deep water extraction in dams within the Sydney catchment area within the meaning of the Water NSW Act 2014, including investigations, associated works or equipment and construction works and other water supply infrastructure, such as the Megarrity’s Creek Water Pumping Station and other Warragamba Emergency Scheme works.

2.160 Development permitted without consent—desalination plants

Development for the purpose of a desalination plant or a pilot desalination plant, including development for any of the following purposes, may be carried out by or on behalf of Sydney Water Corporation without consent on any land—

(a)  the Kurnell Desalination Plant,

(b)  a pilot desalination plant on the Kurnell Peninsula.

2.161 Development permitted with consent

(1)  Development for the purpose of water reticulation systems may be carried out by any person with consent on any land.

(2)  Development for the purpose of water treatment facilities may be carried out by any person with consent on land in a prescribed zone.

(3)  Nothing in this section requires a public authority to obtain consent for development that is permitted without consent by section 2.159.

2.162 Exempt development

Development for the following purposes carried out by or on behalf of a public authority is exempt development if the development is in connection with a water supply system and complies with section 2.20 and if it involves no greater soil or vegetation disturbance than necessary and no increase in stormwater drainage or run-off from the site—

(a)  emergency works or emergency maintenance to protect a water supply system,

(b)  routine maintenance or associated landscaping works,

(c)  removal of litter, silt or debris from any part of the water supply system,

(d)  harvesting of macrophytes associated with a treatment system,

(e)  excavations to expose a pipeline for inspection or testing and temporary stockpiles associated with pipeline maintenance or replacement,

(f)  installation or maintenance of a trunk drainage channel pipeline marker,

(g)  installation, maintenance or replacement of a cathodic protection system,

(h)  flushing or relining of a pipeline where access is by a manhole,

(i)  maintenance of access tracks or fire trails (including access tracks along or to corridors, pipelines or other infrastructure),

(j)  painting, servicing or minor alteration of existing equipment,

(k)  alterations to existing enclosures or buildings,

(l)  maintenance or replacement of components of water supply systems that does not increase capacity (or increases capacity only to a minimal extent),

(m)  any of the following in relation to water meters—

(i)  installation of water meters having a height, width and depth no greater than 1.2m, 300mm and 1.5m, respectively,

(ii)  installation of bollards (to protect water meters from vehicles) having a height no greater than 1.2m,

(iii)  maintenance or decommissioning of water meters,

(n)  any of the following in relation to telemetric equipment that is associated with dams, weirs or reservoirs—

(i)  installation of telemetric equipment having a width and height no greater than 600mm and 2m, respectively,

(ii)  maintenance or decommissioning of telemetric equipment,

(o)  works for safety or security, such as—

(i)  construction, maintenance or realignment of security fencing that has a height above ground level (existing) of not more than 3.2m, or

(ii)  temporary fencing around work sites or around open excavations, or

(iii)  maintenance of existing gates or installation of new gates, or

(iv)  slope stability works,

(p)  temporary structures associated with maintenance projects, but only if the structure has only one storey,

(q)  public recreational facilities within a drinking water catchment area.

2.163 Determination of development applications

(1)  This section applies to development on land identified as “affected land” on the State Environmental Planning Policy (Infrastructure) 2007 Water Supply Infrastructure Map.

(2)  Development consent must not be granted to development to which this section applies unless the consent authority is satisfied the development is consistent with the Guideline for Development Adjacent to the Upper Canal and Warragamba Pipelines, published by Water NSW in September 2021.

Division 25 Waterway or foreshore management activities

2.164 Definition

In this Division—

waterway or foreshore management activities means—

(a)  riparian corridor and bank management, including erosion control, bank stabilisation, resnagging, weed management, revegetation and the creation of foreshore access ways, and

(b)  instream management or dredging to rehabilitate aquatic habitat or to maintain or restore environmental flows or tidal flows for ecological purposes, and

(c)  coastal management and beach nourishment, including erosion control, dune or foreshore stabilisation works, headland management, weed management, revegetation activities and foreshore access ways, and

(d)  salt interception schemes to improve water quality in surface freshwater systems, and

(e)  installation or upgrade of waterway gauging stations for water accounting purposes.

2.165 Development permitted without consent

(1)  Despite clause 129A, development for the purpose of waterway or foreshore management activities may be carried out by or on behalf of a public authority without consent on any land.

(2)  To avoid doubt, subsection (1) does not permit the subdivision of any land.

(3)  In this section, a reference to development for the purpose of waterway or foreshore management activities includes a reference to development for any of the following purposes if the development is in connection with waterway or foreshore management activities—

(a)  construction works,

(b)  routine maintenance works,

(c)  emergency works, including works required as a result of flooding, storms or erosion,

(d)  environmental management works.

(4)  Development for the purpose of temporary works for or associated with drought relief may be carried out by or on behalf of a public authority without consent, but only if the development is—

(a)  carried out on land publicly identified by the Minister for Primary Industries as being in drought, and

(b)  removed, and the area rehabilitated, within 4 months after the date on which the area is no longer so identified.

Note—

Areas of NSW that are in drought are identified on the website of the Department of Primary Industries.

Division 25A Subdivision of Sydney Harbour and adjacent land

2.166 Consent authority

The Minister administering the Ports and Maritime Administration Act 1995 is the consent authority for the purposes of this Division.

2.167 Subdivision of land permitted with consent

(1)  Despite any other environmental planning instrument, land owned by Transport for NSW that is in or adjacent to Sydney Harbour and that is subject to a lease that was entered before the commencement of this Division may be subdivided with development consent.

(2)  The consent authority must not give development consent to subdivision under this section unless the consent authority is satisfied that the subdivision is necessary for the purposes of—

(a)  renewing, for a period of 5 years or more, the lease to which the land is subject, or

(b)  entering, for a period of 5 years or more, a new lease over the land subject to the lease with the same lessee.

(3)  Before granting consent to subdivision under this section the consent authority must consider whether, and to what extent, the subdivision is likely to result in any reduction in public access to the foreshore or waterways.

(4)  Land is subject to a lease for the purposes of this section even if any written lease has expired if the lessee has, with the consent of the lessor, continued to occupy the land.

(5)  In this section—

Sydney Harbour includes all tidal bays, rivers and their tributaries connected with or leading to Sydney Harbour, and all waters bounded by mean high water mark and lying to the west of a line running between the southernmost point of North Head and the northernmost point of South Head.

Division 26 Special provisions

2.168 Complying development—connections to Sydney and Hunter water supply and sewerage

(1)  Development (including any associated earthworks or demolition) involved in installing a pipeline is complying development if the pipeline—

(a)  connects to a relevant utility operator’s water reticulation system and supplies water to land on which the whole or part of the development is carried out, or

(b)  connects to a relevant utility operator’s sewage reticulation system and collects and conveys sewage from land on which the whole or part of the development is carried out.

(2)  Development is complying development under this section only if—

(a)  the development complies with section 2.22 (General requirements for complying development), and

(b)  the development is carried out by a person who is neither a relevant utility operator nor acting on behalf of a relevant utility operator, and

(c)  the pipeline is—

(i)  no more than 375mm in diameter and no more than 1km in length, and

(ii)  if more than 500m in length—installed no more than 6m below ground level (existing), and

(d)  the land on which the development is carried out is not an environmentally sensitive area within the meaning of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

(3)  In this section—

relevant utility operator means the Sydney Water Corporation or the Hunter Water Corporation.

2.169 Complying development certificate—additional conditions for connections to Sydney and Hunter sewerage and water supply

(1)  A complying development certificate for development referred to in section 2.168 is subject to the conditions specified in this section (in addition to the conditions set out in section 2.23).

(2) Compliance with requirements of the Sydney Water Corporation or the Hunter Water Corporation Any relevant requirements of the Sydney Water Corporation or the Hunter Water Corporation in relation to the development must be complied with.

(3) Notification of adjoining owners The person having the benefit of the complying development certificate must give at least 7 days’ notice in writing of the intention to commence the works to the owner or occupier of any dwelling that is situated within 20m of the lot on which the works will be carried out.

(4) Earthworks If any earthworks are carried out—

(a)  those earthworks (including any structural support, or other related structure for the purposes of the development) must not redirect the flow of any surface or ground water or cause sediment to be transported onto an adjoining property, and

(b)  those earthworks (including any structural support, or other related structure for the purposes of the development) must not cause a danger to life or property or damage to any adjoining building or structure on the lot or to any building or structure on any adjoining lot, and

(c)  any excavation must be carried out in accordance with Excavation Work, Code of Practice (ISBN 978 0 642 78544 2), published in March 2015 by Safe Work Australia, and

(d)  any fill brought to the site must contain only virgin excavated natural material (within the meaning of Schedule 1 to the Protection of the Environment Operations Act 1997).

(5) Demolition Any demolition work must be carried out in accordance with Australian Standard AS 2601—2001, The demolition of structures.

s 2.169: Ins 2022 (132), Sch 1[13].

2.169 Ecological restoration works

(1)  Development for the purposes of environmental protection works may be carried out by or on behalf of a public authority without development consent if the environmental protection works will give effect to the draft Cumberland Plain Conservation Plan.

(2)  In this section—

draft Cumberland Plain Conservation Plan means the document titled “The Draft Cumberland Plain Conservation Plan”, published in August 2020 on the Department’s website.

Division 27 Temporary health services facilities, early education and care facilities and schools

ch 2, pt 2.3, div 27: Ins 2022 (274), Sch 1.

2.170 Development permitted without consent

(1)  This section applies to the following land at Wardell—

(a)  Lot 74, DP 1005240, 50 Bath Street,

(b)  Lot 75, DP 1005240, Pine Street.

(2)  Development for the purposes of health services facilities, early education and care facilities and schools is permitted without development consent if all of the following apply—

(a)  the development will only be used temporarily in relation to persons displaced as a result of a natural disaster,

(b)  the development is carried out by or on behalf of a public authority,

(c)  the development is carried out within 5 years of the natural disaster occurring,

(d)  the development is carried out on land that—

(i)  is supplied with water and electricity, and

(ii)  is provided with sewerage and drainage services, and

(iii)  has access to communal amenities,

(e)  each building is—

(i)  erected in a way that does not adversely affect the amenity of the land or the health and safety of persons, including by mitigating the risk of fire, and

(ii)  removed within 5 years of being erected or as soon as possible after a permanent building is erected to replace the temporary building, whichever occurs first.

(3)  To avoid doubt, a reference to an existing health services facility in Division 10 or an existing school in Part 3.4 extends to a health services facility or school erected under this section.

(4)  In this section—

health services facility does not include—

(a)  patient transport facilities, including helipads and ambulance facilities, or

(b)  a hospital.

s 2.170: Ins 2022 (274), Sch 1.

Chapter 3 Educational establishments and child care facilities

Part 3.1 Preliminary

3.1 Aims of Chapter

The aim of this Chapter is to facilitate the effective delivery of educational establishments and early education and care facilities across the State by—

(a)  improving regulatory certainty and efficiency through a consistent planning regime for educational establishments and early education and care facilities, and

(b)  simplifying and standardising planning approval pathways for educational establishments and early education and care facilities (including identifying certain development of minimal environmental impact as exempt development), and

(c)  establishing consistent State-wide assessment requirements and design considerations for educational establishments and early education and care facilities to improve the quality of infrastructure delivered and to minimise impacts on surrounding areas, and

(d)  allowing for the efficient development, redevelopment or use of surplus government-owned land (including providing for consultation with communities regarding educational establishments in their local area), and

(e)  providing for consultation with relevant public authorities about certain development during the assessment process or prior to development commencing, and

(f)  aligning the NSW planning framework with the National Quality Framework that regulates early education and care services, and

(g)  ensuring that proponents of new developments or modified premises meet the applicable requirements of the National Quality Framework for early education and care services, and of the corresponding regime for State regulated education and care services, as part of the planning approval and development process, and

(h)  encouraging proponents of new developments or modified premises and consent authorities to facilitate the joint and shared use of the facilities of educational establishments with the community through appropriate design.

3.2 Land to which Chapter applies

This Chapter applies to the State.

3.3 Interpretation

(1)  A word or expression used in this Chapter has the same meaning as it has in the Standard Instrument unless it is otherwise defined in this Chapter.

Note—

In particular, the following terms are as defined by the Standard Instrument—

centre-based child care facility means—

(a)  a building or place used for the education and care of children that provides any one or more of the following—

(i)  long day care,

(ii)  occasional child care,

(iii)  out-of-school-hours care (including vacation care),

(iv)  preschool care, or

(b)  an approved family day care venue (within the meaning of the Children (Education and Care Services) National Law (NSW)),

Note—

An approved family day care venue is a place, other than a residence, where an approved family day care service (within the meaning of the Children (Education and Care Services) National Law (NSW)) is provided.

but does not include—

(c)  a building or place used for home-based child care or school-based child care, or

(d)  an office of a family day care service (within the meanings of the Children (Education and Care Services) National Law (NSW)), or

(e)  a babysitting, playgroup or child-minding service that is organised informally by the parents of the children concerned, or

(f)  a child-minding service that is provided in connection with a recreational or commercial facility (such as a gymnasium) to care for children while the children’s parents are using the facility, or

(g)  a service that is concerned primarily with providing lessons or coaching in, or providing for participation in, a cultural, recreational, religious or sporting activity, or providing private tutoring, or

(h)  a child-minding service that is provided by or in a health services facility, but only if the service is established, registered or licensed as part of the institution operating in the facility.

early education and care facility means a building or place used for the education and care of children, and includes any of the following—

(a)  a centre-based child care facility,

(b)  home-based child care,

(c)  school-based child care.

educational establishment means a building or place used for education (including teaching), being—

(a)  a school, or

(b)  a tertiary institution, including a university or a TAFE establishment, that provides formal education and is constituted by or under an Act.

gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes—

(a)  the area of a mezzanine, and

(b)  habitable rooms in a basement or an attic, and

(c)  any shop, auditorium, cinema, and the like, in a basement or attic,

but excludes—

(d)  any area for common vertical circulation, such as lifts and stairs, and

(e)  any basement—

(i)  storage, and

(ii)  vehicular access, loading areas, garbage and services, and

(f)  plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

(g)  car parking to meet any requirements of the consent authority (including access to that car parking), and

(h)  any space used for the loading or unloading of goods (including access to it), and

(i)  terraces and balconies with outer walls less than 1.4 metres high, and

(j)  voids above a floor at the level of a storey or storey above.

ground level (existing) means the existing level of a site at any point.

home-based child care means a family day care residence (within the meaning of the Children (Education and Care Services) National Law (NSW)) at which the education and care service is provided at any one time to no more than 7 children (including any child of the person providing the service) all of whom are under the age of 13 years and no more than 4 of whom are children who do not ordinarily attend school.

Note—

A family day care residence is a residence at which a family day care educator educates and cares for children as part of a family day care service—see the Children (Education and Care Services) National Law (NSW).

school means a government school or non-government school within the meaning of the Education Act 1990.

school-based child care means a building or place within a school that is used to provide out-of-school-hours care (including vacation care) for school children only.

Note—

Accordingly, a building or place within a school that is used to provide out-of-school-hours care for both school children and pre-school children is not school-based child care.

(2)  In this Chapter—

Acid Sulfate Soils Map means a map in an environmental planning instrument that identifies land containing acid sulfate soil.

Blue Book means Managing Urban Stormwater: Soils and Construction (4th edition, Landcom, 2004), as in force at the commencement of this Chapter.

bush fire attack level-40 (BAL-40) has the same meaning as in AS 3959:2018, Construction of buildings in bushfire-prone areas.

campus student accommodation, in relation to a school, university or TAFE establishment, means residential accommodation that is—

(a)  associated with the school, university or TAFE establishment, and

(b)  principally for students enrolled at the school, university or TAFE establishment, and

(c)  not located on land outside the boundaries of the school, university or TAFE establishment, and

(d)  designed primarily for shared living with common spaces and shared facilities provided for residents.

Child Care Planning Guideline means the Child Care Planning Guideline approved by the Planning Secretary and published in the Gazette on 1 October 2021.

draft heritage conservation area means an area of land identified as a heritage conservation area or place of Aboriginal heritage significance in a local environmental plan that has been subject to community consultation.

draft heritage item means a building, work, place, tree, archaeological site or Aboriginal object that is identified as a heritage item in a local environmental plan that has been subject to community consultation.

environmental management works means—

(a)  works for the purpose of avoiding, reducing, minimising or managing the environmental effects of development (including effects on water, soil, air, biodiversity, traffic or amenity), and

(b)  environmental protection works.

flame zone (BAL-FZ) has the same meaning as in AS 3959:2018, Construction of buildings in bushfire-prone areas.

flood control lot has the same meaning as in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

foreshore area means the land between a foreshore building line and the mean high water mark of an adjacent waterbody (natural).

grasslands has the same meaning as in Planning for Bush Fire Protection.

heritage conservation area means land identified as a heritage conservation area or place of Aboriginal significance (or by a similar description) in an environmental planning instrument.

interim rail corridor has the same meaning as it has in clause 78 of State Environmental Planning Policy (Infrastructure) 2007.

Level 5 qualified arborist means an arborist with a minimum AQF level 5 in Arboriculture under the Australian Qualifications Framework (within the meaning of section 7 of the Higher Education Act 2001).

local heritage item means—

(a)  a building, work, place, relic, tree or archaeological site that is identified as a heritage item (or by a similar description) in a local environmental plan, or

(b)  an Aboriginal object or a place declared under section 84 of the National Parks and Wildlife Act 1974 to be an Aboriginal place for the purposes of that Act, or

(c)  an item of local heritage significance, as defined by the Heritage Act 1977, that is the subject of an interim heritage order in force under that Act or is listed as an item of local heritage significance on the State Heritage Inventory under that Act.

National Quality Framework means the national education and care services quality framework within the meaning of the Children (Education and Care Services) National Law (NSW).

Planning for Bush Fire Protection means the document entitled Planning for Bush Fire Protection, ISBN 978 0 646 99126 9, prepared by the NSW Rural Fire Service in co-operation with the Department of Planning, Industry and Environment, dated November 2019.

rail corridor means land—

(a)  that is owned, leased, managed or controlled by a public authority for the purpose of a railway or rail infrastructure facilities, or

(b)  that is zoned under an environmental planning instrument predominantly or solely for development for the purpose of a railway or rail infrastructure facilities, or

(c)  in respect of which the Minister has granted approval under Part 3A or Division 5.2 or (before its repeal) Division 4 of Part 5 of the Act, or consent under Part 4 of the Act, for the carrying out of development (or for a concept plan for a project comprising or including development) for the purpose of a railway or rail infrastructure facilities.

Note—

Copies of the Minister’s approvals are available on the website of the Department of Planning and Environment.

rail infrastructure facilities include—

(a)  railway tracks, associated track structures, cuttings, drainage systems, fences, tunnels, ventilation shafts, emergency accessways, bridges, embankments, level crossings and roads, pedestrian and cycleway facilities, and

(b)  signalling, train control, communication and security systems, and

(c)  power supply (including overhead power supply) systems, and

(d)  railway stations, station platforms and areas in a station complex that commuters use to get access to the platforms, and

(e)  public amenities for commuters, and

(f)  associated public transport facilities for railway stations, and

(g)  facilities for the assembly, maintenance and stabling of rolling stock, and

(h)  facilities for the dismantling and stabling of rolling stock taken out of service, and

(i)  refuelling depots, garages, maintenance facilities and storage facilities that are for the purposes of a railway, and

(j)  railway workers’ facilities, and

(k)  rail freight terminals, sidings and freight intermodal facilities, and

(l)  buildings for or related to railway purposes,

but do not include buildings or works that are for residential, retail or business purposes and unrelated to railway purposes.

railway station includes any station for a metro railway (within the meaning of the Transport Administration Act 1988).

site compatibility certificate means a certificate issued under section 3.14(5).

Standard Instrument means the standard local environmental planning instrument prescribed by the Standard Instrument (Local Environmental Plans) Order 2006 made under the Act.

State heritage item means an item of State heritage significance, as defined by the Heritage Act 1977, that is the subject of an interim heritage order in force under that Act or listed on the State Heritage Register under that Act.

State land means—

(a)  Crown land within the meaning of the Crown Land Management Act 2016, or

(b)  any other land of the Crown or vested in a Minister on behalf of the Crown, or

(c)  land owned by a public authority other than—

(i)  a council or other body established under the Local Government Act 1993, or

(ii)  (to the extent that it is prescribed as a public authority under the Act) a non-government school.

TAFE establishment has the same meaning as in the Technical and Further Education Commission Act 1990.

tertiary institution means a tertiary institution, including a university or a TAFE establishment, that provides formal education and is constituted by or under an Act.

the Act means the Environmental Planning and Assessment Act 1979.

the Regulation means the Environmental Planning and Assessment Regulation 2000.

university means an Australian university within the meaning of the Higher Education Act 2001.

Note—

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Chapter.

(3)  If this Chapter provides that development for a particular purpose that may be carried out without development consent includes construction works, the following works or activities are (subject to and without limiting that provision) taken to be construction works if they are carried out for that purpose—

(a)  accessways,

(b)  temporary construction yards,

(c)  temporary lay-down areas for materials or equipment,

(d)  temporary structures,

(e)  conduct of investigations,

(f)  subject to any other law, clearing of vegetation (including any necessary cutting, pruning or removal of trees) and associated rectification and landscaping,

(g)  demolition,

(h)  relocation or removal of infrastructure,

(i)  extraction of extractive materials at the construction site solely for the purpose of the construction.

(4)  A reference in this Chapter to an existing educational establishment or early education and care facility or other building or facility is a reference to one that is being lawfully used for the purpose concerned.

(5)  A reference in this Chapter—

(a)  to a development application, includes a reference to an application for modification to a development consent, and

(b)  to development consent, includes a reference to the grant of an application for modification to a development consent.

(6)  A reference in this Chapter to a lot or to land in a named land use zone is a reference—

(a)  to land that, under an environmental planning instrument made as provided by section 3.20(2) of the Act, is in a land use zone specified in the Standard Instrument, and

(b)  to land that, under an environmental planning instrument that is not made as provided by section 3.20(2) of the Act, is in a land use zone in which equivalent land uses are permitted to those permitted in the named land use zone.

(7)  Notes included in this Chapter do not form part of this Chapter.

3.4 Giving written notice

For the purposes of this Chapter, a written notice may be given to a person—

(a)  by delivering it to the person personally, or

(b)  by sending it by pre-paid post to the address of the person, or

(c)  by sending it by electronic transmission to an address specified by the person for giving of the notice.

3.5 Preconditions to carrying out certain development

For the purposes of this Chapter, and despite any other provision of this Chapter, development that is subject to a precondition that must be satisfied before it may be carried out without development consent is not development that may be carried out without development consent under this Chapter until the precondition is satisfied.

Note—

For preconditions to carrying out development referred to in this section, see Division 1 of Part 3.2 and sections 3.38, 3.48 and 3.55.

3.6 Relationship to other environmental planning instruments

(1)  If there is an inconsistency between this Chapter and another environmental planning instrument, whether made before or after the commencement of this Chapter, this Chapter prevails to the extent of the inconsistency.

(2)  In particular, without limiting subsection (1) and despite any other provision of this Chapter, the following provisions do not apply to development carried out under this Chapter on land to which those provisions apply—

(a)  clause 8.10 of Gosford Local Environmental Plan 2014,

(b)  clause 6.2 of Pittwater Local Environmental Plan 2014,

(c)  clause 6.12 of Randwick Local Environmental Plan 2012,

(d)  clause 6.9 of Ryde Local Environmental Plan 2010,

(e)  clause 6.8 of Ryde Local Environmental Plan 2014,

(f)  Part 5.4 and clause 36 of State Environmental Planning Policy (Penrith Lakes Scheme) 1989,

(g)  clause 6.6 of Appendix 1 (Oran Park and Turner Road Precinct Plan) of State Environmental Planning Policy (Sydney Region Growth Centres) 2006,

(h)  clause 6.9 of Appendix 7 (Schofields Precinct Plan) of State Environmental Planning Policy (Sydney Region Growth Centres) 2006,

(i)  clause 7.20 of Sydney Local Environmental Plan 2012,

(j)  clause 7.13 of Tweed Local Environmental Plan 2014.

Note—

The provisions referred to in this subsection require the preparation of a development control plan as a prerequisite to the grant of development consent for development on land to which they apply.

(3)  Despite any other provision of this Chapter, if there is an inconsistency between this Chapter and any of the following Policies, the other Policy prevails to the extent of the inconsistency—

(a)  State Environmental Planning Policy No 14—Coastal Wetlands,

(b)  State Environmental Planning Policy No 26—Littoral Rainforests,

(c)  State Environmental Planning Policy No 71—Coastal Protection,

(d)  State Environmental Planning Policy (State and Regional Development) 2011,

(e)  State Environmental Planning Policy (Three Ports) 2013.

(4)  The fact that another environmental planning instrument (other than one referred to in subsection (3)) and this Chapter specify the same development as either exempt or complying development does not of itself make this Chapter and the instrument inconsistent for the purposes of subsection (1). Accordingly, that development may be carried out under this Chapter or that other instrument.

Note—

The Environmental Planning and Assessment Regulation 2000 specifies that a person must refer to the environmental planning instrument under which the development is complying development in an application for a complying development certificate.

3.7 Review of Policy

The Minister must ensure that the provisions of this Chapter are reviewed—

(a)  as soon as is reasonably practicable after the first anniversary of the commencement of this Chapter, and

(b)  as soon as is reasonably practicable—

(i)  after any review of the National Quality Framework undertaken by the Federal, State and Territory Governments, or

(ii)  after the end of each 5-year period following the commencement of this Chapter, if no review of the National Quality Framework referred to in subparagraph (i) occurs within that period.

Part 3.2 General

Division 1 Consultation and notification

3.8 Consultation with councils—development with impacts on council-related infrastructure or services

(1)  This section applies to development carried out by or on behalf of a public authority that this Chapter provides may be carried out without development consent if, in the opinion of the public authority, the development—

(a)  will have a substantial impact on stormwater management services provided by a council, or

(b)  is likely to generate traffic to an extent that will strain the capacity of the road system in a local government area, or

(c)  involves connection to, and a substantial impact on the capacity of, any part of a sewerage system owned by a council, or

(d)  involves connection to, and use of a substantial volume of water from, any part of a water supply system owned by a council, or

(e)  involves the installation of a temporary structure on, or the enclosing of, a public place that is under a council’s management or control that is likely to cause a disruption to pedestrian or vehicular traffic that is not minor or inconsequential, or

(f)  involves excavation that is not minor or inconsequential of the surface of, or a footpath adjacent to, a road for which a council is the roads authority under the Roads Act 1993 (if the public authority that is carrying out the development, or on whose behalf it is being carried out, is not responsible for the maintenance of the road or footpath).

(2)  A public authority, or a person acting on behalf of a public authority, must not carry out development to which this section applies unless the authority or the person has—

(a)  given written notice of the intention to carry out the development (together with a scope of works) to the council for the area in which the land is located, and

(b)  taken into consideration any response to the notice that is received from the council within 21 days after the notice is given.

3.9 Consultation with councils—development with impacts on local heritage

(1)  This section applies to development carried out by or on behalf of a public authority if the development—

(a)  is likely to affect the heritage significance of a local heritage item, or of a heritage conservation area, that is not also a State heritage item in a way that is more than minimal, and

(b)  is development that this Chapter provides may be carried out without development consent.

(2)  A public authority, or a person acting on behalf of a public authority, must not carry out development to which this section applies unless the authority or the person has—

(a)  had an assessment of the impact prepared, and

(b)  given written notice of the intention to carry out the development, with a copy of the assessment and a scope of works, to the council for the area in which the local heritage item or heritage conservation area (or the relevant part of such an area) is located, and

(c)  taken into consideration any response to the notice that is received from the council within 21 days after the notice is given.

3.10 Notification of councils and State Emergency Service—development on flood liable land

(1)  A public authority, or a person acting on behalf of a public authority, must not carry out, on flood liable land, development that this Chapter provides may be carried out without development consent (other than demolition of buildings or structures, or internal works to existing buildings) unless the authority or person has—

(a)  given written notice of the intention to carry out the development (together with a scope of works) to the council for the area in which the land is located and the State Emergency Service, and

(b)  taken into consideration any responses to the notice that are received from the council and State Emergency Service within 21 days after the notice is given.

(2)  In this section, flood liable land means land that is susceptible to flooding by the probable maximum flood event, identified in accordance with the principles set out in the manual titled Floodplain Development Manual: the management of flood liable land published by the New South Wales Government and as in force from time to time.

3.11 Consideration of Planning for Bush Fire Protection

(1)  This section applies to development for the purposes of an educational establishment or school-based child care that this Chapter provides may be carried out without development consent.

(2)  A public authority, or a person acting on behalf of a public authority, must consider Planning for Bush Fire Protection before carrying out the development in an area that is bush fire prone land.

(3)  In this section—

bush fire prone land means land recorded for the time being as bush fire prone land on a map certified under the Act, section 10.3(2).

3.12 Consultation with public authorities other than councils

(1)  A public authority, or a person acting on behalf of a public authority, must not carry out specified development that this Chapter provides may be carried out without development consent unless the authority or person has—

(a)  given written notice of the intention to carry out the development (together with a scope of works) to the specified authority in relation to the development, and

(b)  taken into consideration any response to the notice that is received from that authority within 21 days after the notice is given.

(2)  For the purposes of subsection (1), the following development is specified development and the following authorities are specified authorities in relation to that development—

(a)  development adjacent to land reserved under the National Parks and Wildlife Act 1974 or acquired under Part 11 of that Act—an appropriate Public Service employee designated by the Minister for Energy and Environment,

(b)  development on land immediately adjacent to a rail corridor that—

(i)  is likely to have an adverse effect on rail safety, or

(ii)  if the rail corridor concerned is used by electric trains, involves the placing of a metal finish on a structure, or

(iii)  involves the use of a crane in air space above any rail corridor,

the rail authority for the rail corridor,

(c)  development that may increase the amount of artificial light in the night sky and that is on land within the dark sky region as identified on the dark sky region map—the Director of the Observatory,

Note—

The dark sky region is land within 200 kilometres of the Siding Spring Observatory.

(d)  development on land in a mine subsidence district within the meaning of the Coal Mine Subsidence Compensation Act 2017—Subsidence Advisory NSW.

(3)  For the purposes of subsection (1), development for the purpose of an existing school is specified development, in relation to which Transport for NSW is the specified authority, if—

(a)  the site has access to a road and the development will result in the school being able to accommodate 50 or more additional students, or

(b)  the site has access to—

(i)  a classified road, or

(ii)  a road (the connecting road) that connects, within 90 metres (measured along the alignment of the connecting road) of the access point, to a classified road,

and the development will result in the provision of an additional 50 or more car parking spaces, or

(c)  no road to which the site has access is classified and the development will result in the provision of an additional 200 or more car parking spaces, or

(d)  the development will result in—

(i)  a new vehicular or pedestrian access point to the school from a public road, or

(ii)  a change in location of an existing vehicular or pedestrian access point to the school from a public road, or

(e)  the development will involve excavation to a depth of 3 or more metres below ground level (existing) on land within or immediately adjacent to a classified road within the meaning of the Roads Act 1993.

(4)  In this section—

ARTC means Australian Rail Track Corporation Ltd (ACN 081 455 754).

ARTC arrangement means a lease, licence agreement or other arrangement under Part 8A of the Transport Administration Act 1988.

dark sky region map means the map marked “Dark Sky Region Map” held in the head office of the Department.

rail authority for a rail corridor means—

(a)  in relation to a rail corridor that is vested in or owned by ARTC or is the subject of an ARTC arrangement—the chief executive officer of ARTC, and

(b)  in relation to a rail corridor that is vested in or owned by RailCorp—the Chief Executive of RailCorp, and

(c)  in relation to any other rail corridor—the Secretary of the Department of Transport.

RailCorp means Rail Corporation New South Wales constituted under the Transport Administration Act 1988.

Note—

Clause 18A(2) of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 requires public authorities (or persons acting on their behalf) to consult with the Department before carrying out any development comprising the clearing of native vegetation on certain land within a growth centre (within the meaning of that Policy). The land concerned is land other than the subject land (within the meaning of Part 7 of Schedule 7 to the Threatened Species Conservation Act 1995). The subject land is generally land to which precinct plans apply under that Policy.

3.13 Exceptions

(1)  Sections 3.8–3.12 do not apply with respect to development to the extent that—

(a)  they would require notice of the intention to carry out the development to be given to a council or public authority from whom an approval is required in order for the development to be carried out lawfully, or

(b)  they would require notice to be given to a council or public authority with whom the public authority that is carrying out the development, or on whose behalf it is being carried out, has an agreed consultation protocol that applies to the development, or

(c)  they would require notice to be given to a council or public authority that is carrying out the development or on whose behalf it is being carried out, or

(d)  the development is exempt development under any environmental planning instrument (including this Chapter), or

(e)  the development comprises emergency works that—

(i)  involve no greater disturbance to soil or vegetation than necessary, and

(ii)  are carried out in accordance with all applicable requirements of the Blue Book.

(2)  In this section—

approval means any licence, permission or any form of authorisation, other than development consent, under any other law.

consultation protocol means an arrangement that—

(a)  is about when and how the parties to the arrangement will consult one another about proposed development, and

(b)  is recorded in writing, and

(c)  is approved in writing on behalf of any public authority that is a party to the arrangement by a person who is authorised to do so.

emergency works means works for the purpose of maintaining or restoring an educational establishment or early education and care facility, or equipment, in order to ensure public safety or to protect buildings or the environment due to—

(a)  a sudden natural event, including a storm, flood, tree fall, bush fire, land slip or coastal inundation, or

(b)  accident, equipment failure or structural collapse, or

(c)  damage caused by vandalism or arson.

Division 2 Site compatibility certificates

3.14 Site compatibility certificates

(1)  An application for a site compatibility certificate for the purpose of section 3.15 may be made to the relevant planning panel—

(a)  by the owner of the land on which the development is proposed to be carried out, or

(b)  by any other person with the consent of the owner of that land.

(2)  An application under this section—

(a)  must be in writing in the form approved by the relevant planning panel, and

(b)  must be accompanied by—

(i)  information demonstrating that the proposal is not inconsistent with the relevant district plan made under Division 3.1 of the Act (district plan), and

(ii)  any other document or information required by the relevant planning panel to accompany the application, and

(c)  must be accompanied by the fee, if any, prescribed by the regulations.

(3)  The relevant planning panel may request further documents and information to be furnished in connection with an application under this section.

(4)  Within 7 days after the application is made, the relevant planning panel must provide a copy of the application to the council for the area in which the development concerned is proposed to be carried out, unless the relevant planning panel refuses, before those 7 days have elapsed, to issue a certificate.

(5)  Subject to subsection (6), the relevant planning panel may determine the application by issuing a certificate or refusing to do so.

(6)  The relevant planning panel must not issue a certificate unless the relevant planning panel—

(a)  has taken into account any comments received from the council within 21 days after the application for the certificate was made, and

(b)  is of the opinion that the development concerned is compatible with the surrounding land uses having regard to the following matters—

(i)  the existing uses and approved uses of land in the vicinity of the development,

(ii)  the impact that the development (including its bulk and scale) is likely to have on the existing uses, approved uses and uses that, in the opinion of the relevant planning panel, are likely to be the preferred future uses of that land,

(iii)  the services and infrastructure that are or will be available to meet the demands arising from the development, and

(c)  is of the opinion that the development concerned is not likely to have an adverse effect on the environment and does not cause any unacceptable environmental risks to the land, and

(d)  is of the opinion that the development concerned is in the public interest, and will deliver social, economic and environmental benefits to the wider community, and

(e)  is of the opinion that the development concerned is consistent with the relevant district plan.

(7)  A certificate may certify that the development to which it relates is compatible with the surrounding land uses only if it satisfies certain requirements specified in the certificate.

(8)  A certificate continues to apply to the land in respect of which it was issued despite any change in the ownership of that land.

(9)  A certificate is valid for 5 years or any lesser period specified in the certificate.

(10)  In this section—

relevant planning panel means a Sydney district or regional planning panel for the particular part of the State concerned.

Division 3 Additional uses of State land

Note—

Consent for development under this Division may be granted only if the development is the subject of a certificate of the relevant planning panel certifying that the development is compatible with surrounding land uses.

3.15 Additional uses of certain State land permitted

(1)  Development for a purpose that is permitted under this Chapter without development consent on relevant land by the zoning of the relevant land may be carried out without development consent on adjacent prescribed State land.

(2)  Development for a purpose that is permitted under this Chapter with development consent on relevant land by the zoning of the relevant land may be carried out with development consent on adjacent prescribed State land, if there is a valid site compatibility certificate applying to the development.

(3)  Subsections (1) and (2) apply despite any local environmental plan that applies to the adjacent land.

(4)  However, subsection (2) does not apply in relation to the development if the adjacent land concerned is no longer prescribed State land because it is—

(a)  a forestry area within the meaning of the Forestry Act 2012, or

(b)  reserved under the National Parks and Wildlife Act 1974, or

(c)  reserved under the Crown Land Management Act 2016 for a public purpose that, in the opinion of the relevant planning panel, is an environmental protection or nature conservation purpose.

(5)  This Chapter does not—

(a)  prevent a consent authority from—

(i)  granting consent for development on land by reference to site and design features that are more stringent than those identified in a site compatibility certificate for the same land, or

(ii)  refusing to grant consent for development on the grounds of the consent authority’s own assessment of the compatibility of the development with the surrounding land uses, or

(b)  otherwise limit the matters to which a consent authority may have regard in determining a development application for development to which this section applies.

(6)  Land is adjacent to other land for the purpose of this section even if it is separated from that other land by a road, or road related area, as defined by the Road Transport Act 2013.

(7)  This section does not apply to development for the purposes of campus student accommodation.

(8)  In this section—

prescribed State land means State land other than the following land—

(a)  land in the following zones under an environmental planning instrument—

(i)  Zone RE1 Public Recreation,

(ii)  Zone E1 National Parks and Nature Reserves,

(iii)  Zone E2 Environmental Conservation,

(iv)  Zone W1 Natural Waterways,

(b)  land in a forestry area within the meaning of the Forestry Act 2012,

(c)  land reserved under the National Parks and Wildlife Act 1974,

(d)  land reserved under the Crown Land Management Act 2016 for a public purpose that, in the opinion of the relevant planning panel, is an environmental protection or nature conservation purpose.

relevant land means—

(a)  for subsection (1)—land that is prescribed State land on which a school or TAFE establishment is located, and

(b)  for subsection (2)—land that was prescribed State land when the site compatibility certificate was issued and on which a school or TAFE establishment is located.

relevant planning panel has the same meaning as in section 3.14.

Division 4 Exempt development

Note—

In addition to the requirements set out in this Chapter in relation to exempt development, adjoining owners’ property rights, the applicable common law and other legislative requirements for approvals, licences, permits and authorities still apply. For example, requirements relevant to the kind of exempt development concerned may be contained in the Act, the Environmental Planning and Assessment Regulation 2000, various State environmental planning policies, the Protection of the Environment Operations Act 1997, the Roads Act 1993 and Acts applying to various infrastructure authorities. If the development is in proximity to infrastructure, including water, stormwater and sewer mains, electricity power lines and telecommunications facilities, the relevant infrastructure authority should be contacted before commencing the development.

3.16 General requirements for exempt development

(1)  This section applies to any development that this Chapter provides is exempt development.

Note—

Section 3.17 and other provisions of this Chapter identify kinds of development that are exempt development if they meet the requirements of this section.

(2)  Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Chapter.

(3)  To be exempt development, the development—

(a)  must meet the relevant deemed-to-satisfy provisions of the Building Code of Australia, or if there are no such relevant provisions, must be structurally adequate, and

(b)  must not, if it relates to an existing building—

(i)  cause the building to contravene the Building Code of Australia, or

(ii)  compromise the fire safety of the building or affect access to any fire exit, and

(c)  must be carried out in accordance with all relevant requirements of the Blue Book, and

(d)  must not be designated development, and

Note—

Designated development is defined in section 4.10 of the Act as development that is declared to be designated development by an environmental planning instrument or the regulations.

(e)  if it is likely to affect a State or local heritage item or a heritage conservation area—must involve no more than minimal impact on the heritage significance of the item or area, and be in accordance with any applicable heritage conservation management plan, and

(f)  must be installed in accordance with the manufacturer’s specifications, if applicable, and

(g)  must not involve the removal or pruning of a tree or other vegetation that requires a permit or approval, unless the removal or pruning is undertaken in accordance with a permit or approval, and

Note—

A permit or approval may be granted under State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017.

(h)  must not involve the removal of asbestos, unless that removal is undertaken in accordance with How To Safely Remove Asbestos: Code of Practice (ISBN 978 0 642 33317 9) published by Safe Work Australia, and

(i)  must not be carried out on land that is in a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 or declared critical habitat under the Fisheries Management Act 1994, Part 7A, and

(j)  must not be carried out on land in a wilderness area within the meaning of the Wilderness Act 1987.

(4)  In this section—

exempt development code means any of the following codes—

(a)  the General Exempt Development Code set out in Division 1 of Part 2 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008,

(b)  the Advertising and Signage Exempt Development Code set out in Division 2 of Part 2 of that Policy,

(c)  the Temporary Uses and Structures Exempt Development Code set out in Division 3 of Part 2 of that Policy.

Note—

A service approval is required to operate an early education and care facility that is an education and care service to which the Children (Education and Care Services) National Law (NSW) applies or a State regulated education and care service to which the Children (Education and Care Services) Supplementary Provisions Act 2011 applies. Approved services are subject to various operational requirements under that legislation, including requirements for the physical environment of the approved service.

3.17 Exempt development for Schedule 5 purposes carried out by public authorities in connection with educational establishments

Development for a purpose specified in Schedule 5 is exempt development if—

(a)  it is carried out by or on behalf of a public authority in connection with—

(i)  an existing educational establishment, or

(ii)  existing campus student accommodation on land within the boundaries of the educational establishment.

(b)  it meets the development standards for the development specified in Schedule 5.

Note—

Exempt development must also comply with the general requirements in section 3.16.

Division 5 Complying development

3.18 General requirements for complying development

(1)  This section applies to any development that this Chapter provides is complying development.

(2)  To be complying development, the development must—

(a)  meet the general requirements for complying development set out in clause 1.17A of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, and

(b)  not be exempt development under this Chapter, and

(c)  be permissible, with development consent, under an environmental planning instrument applying to the land on which the development is carried out, and

Note—

Accordingly, development that is permitted to be carried out without development consent is not complying development.

(d)  meet the relevant provisions of the Building Code of Australia, and

(e)  not involve the removal or pruning of a tree or other vegetation that requires a permit or approval, unless the removal or pruning is undertaken in accordance with a permit or approval, and

Note—

A permit or approval may be granted under State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017.

(f)  not be carried out within 1 metre of any public sewer, if the development comprises the erection of a building, except with the written approval of the authority that has management or control of that sewer, and

(g)  if it is on land that is—

(i)  within or above a rail corridor or interim rail corridor, or

(ii)  within 25 metres (measured horizontally) of a rail corridor or interim rail corridor, or

(iii)  within 25 metres (measured horizontally) of the ground directly above an underground rail corridor or an underground interim rail corridor,

not involve excavation to a depth greater than 2 metres below ground level (existing) on the land, and

(h)  if it is on land that is in or immediately adjacent to a rail corridor, must not involve the use of a crane in the air space above any rail corridor.

Note—

A service approval is required to operate an early education and care facility that is an education and care service to which the Children (Education and Care Services) National Law (NSW) applies or a State regulated education and care service to which the Children (Education and Care Services) Supplementary Provisions Act 2011 applies. Approved services are subject to various operational requirements under that legislation, including requirements for the physical environment of the approved service.

(3)  To be complying development, the development must not be carried out on—

(a)  land that is reserved for a public purpose in an environmental planning instrument, or

(b)  land identified on an Acid Sulfate Soils Map as being Class 1 or Class 2, or

(c)  land that is significantly contaminated land within the meaning of the Contaminated Land Management Act 1997, or

(d)  land that is subject to a biobanking agreement under Part 7A of the Threatened Species Conservation Act 1995 or a property vegetation plan approved under the Native Vegetation Act 2003, or

(e)  land identified by an environmental planning instrument as being—

(i)  within a buffer area, or

(ii)  within a river front area, or

(iii)  within an ecologically sensitive area, or

(iv)  environmentally sensitive land, or

(v)  within a protected area, or

(f)  land that is identified by an environmental planning instrument, a development control plan or a policy adopted by the council as being or affected by—

(i)  a coastline hazard, or

(ii)  a coastal hazard, or

(iii)  a coastal erosion hazard, or

(g)  land in a foreshore area, or

(h)  unsewered land—

(i)  to which State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 applies, or

(ii)  in any other drinking water catchment identified in any other environmental planning instrument.

(4)  Development referred to in clause 15(2) of Schedule 1 to State Environmental Planning Policy (State and Regional Development) 2011 is not complying development under this Chapter.

Note 1—

Accordingly, clause 9 of that Policy does not apply in relation to that development.

Note 2—

Clause 15(2) of Schedule 1 to that Policy declares to be State significant development, development that has a capital investment value of more than $50 million for the purposes of the erection of a building, or alterations or additions to an existing building, at an existing school.

3.19 Land on which complying development may not be carried out—bush fire prone land

(1)  To be complying development for the purposes of this Chapter, the development must not be carried out on land in bush fire attack level-40 (BAL-40) or the flame zone (BAL-FZ).

Note—

More information about the categories of bush fire attack, including the flame zone, can be found in Table A1.7 of Planning for Bush Fire Protection.

(2)  For the purposes of this Chapter, land is not in bush fire attack level-40 (BAL-40) or the flame zone (BAL-FZ) if—

(a)  the council or a person who is recognised by the NSW Rural Fire Service as a suitably qualified consultant in bush fire risk assessment determines, in accordance with the methodology specified in Planning for Bush Fire Protection, that the land is not in bush fire attack level-40 (BAL-40) or the flame zone (BAL-FZ), or

(b)  in the case of development carried out on grasslands—the development conforms to the specifications and requirements of Table 7.9a of Planning for Bush Fire Protection that are relevant to the development.

(3)  Nothing in this section prevents complying development being carried out on part of a lot that is not land referred to in subsection (1) even if other parts of the lot are such land.

3.20 Development affecting certain trees or vegetation

Complying development under this Chapter is not required to satisfy the requirements of section 3.18(2)(e), to the extent that it relates to a permit or approval required under an environmental planning instrument, in respect of the removal or pruning of a tree or other vegetation if—

(a)  in the case of any tree, it is not listed as a significant tree on a register kept by the council, and

(b)  the tree or vegetation is within 3 metres of the development, and

(c)  the tree or vegetation has a height that is less than 8 metres.

3.21 General conditions of complying development certificates

Note—

The Protection of the Environment Operations Act 1997 and the Protection of the Environment Operations (Noise Control) Regulation 2008 contain provisions relating to noise.

(1) General A complying development certificate for complying development under this Chapter is subject to the conditions specified in this section.

Note—

The regulations made under the Act contain additional conditions of a complying development certificate, including conditions relating to the Building Code of Australia, requirements under the Home Building Act 1989, BASIX and asbestos removal.

(2) Conditions applying before works commence A temporary hoarding or temporary construction site fence must be erected between the work site and adjoining land before the works begin and must be kept in place until after the completion of works if the works—

(a)  could cause a danger, obstruction or inconvenience to pedestrian or vehicular traffic, or

(b)  could cause damage to adjoining land by falling objects, or

(c)  involve the enclosure of a public place or part of a public place.

Note—

See the entry for hoardings in Schedule 5. See also the entry for scaffolding, hoardings and temporary construction site fences in the General Exempt Development Code in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

(3)  Toilet facilities must be available or provided at the work site before works begin and must be maintained until the works are completed at a ratio of one toilet plus one additional toilet for every 20 persons employed at the site.

(4)  Each toilet must—

(a)  be a standard flushing toilet connected to a public sewer, or

(b)  have an on-site effluent disposal system approved under the Local Government Act 1993, or

(c)  be a temporary chemical closet approved under the Local Government Act 1993.

(5)  A garbage receptacle must be provided at the work site before works begin and must be maintained until the works are completed.

(6) Conditions applying during works Construction or demolition may only be carried out between 7.00 am and 5.00 pm on Monday to Saturday and no construction or demolition is to be carried out at any time on a Sunday or a public holiday.

(7)  Works must be carried out in accordance with the plans and specifications to which the complying development certificate relates.

(8)  Run-off and erosion controls must be effectively maintained until the site has been stabilised and landscaped.

(9)  If any object having interest due to its age or association with the past is uncovered during the course of the work—

(a)  all work must stop immediately in that area, and

(b)  an appropriate Public Service employee designated by the Minister for Energy and Environment must be advised of the discovery.

Note—

Depending on the significance of the object uncovered, an archaeological assessment and excavation permit under the Heritage Act 1977 may be required before further the work can continue.

(10)  If any Aboriginal object (including evidence of habitation or remains) is discovered during the course of the work—

(a)  all excavation or disturbance of the area must stop immediately in that area, and

(b)  the Secretary of the Department of Premier and Cabinet must be advised of the discovery in accordance with section 89A of the National Parks and Wildlife Act 1974.

Note—

If an Aboriginal object is discovered, an Aboriginal heritage impact permit may be required under the National Parks and Wildlife Act 1974.

(11)  Dirt, sand and other materials relating to the construction or other work comprised in the development and loaded on to any vehicles entering or leaving the site must be covered.

(12)  All vehicles, before leaving the site, must be cleaned of dirt, sand or other materials that have adhered during that construction or other work and could be tracked onto public roads.

(13)  Building, or demolition, materials and equipment must be stored wholly within the work site unless an approval to store them elsewhere is held.

(14)  Demolition materials and waste materials must be sorted, and must be disposed of at a waste or resource management facility.

Note—

The Protection of the Environment Operations Act 1997 and the Protection of the Environment Operations (Waste) Regulation 2014 contain provisions relating to waste.

(15)  The work site must be left clear of waste and debris at the completion of the works.

(16) Utility services If the complying development requires alteration to, or the relocation of, utility services on the lot on which the complying development is carried out, the complying development is not complete until all such works are carried out.

(17) Post-works requirements If—

(a)  the development involves the erection or change of use of a building within a water supply authority’s area of operations, and

(b)  the water supply authority requires a certificate of compliance to be obtained with respect to the erection or change of use of the building,

the building cannot be occupied before such a certificate has been obtained.

(18)  In this section—

certificate of compliance, in relation to a water supply authority, means a certificate of compliance issued by the water supply authority under the Act under which the water supply authority is constituted.

water supply authority means—

(a)  the Sydney Water Corporation, the Hunter Water Corporation or a water supply authority within the meaning of the Water Management Act 2000, or

(b)  a council or county council exercising water supply, sewerage or stormwater drainage functions under Division 2 of Part 3 of Chapter 6 of the Local Government Act 1993.

Part 3.3 Early education and care facilities—specific development controls

Note 1—

A service approval is required to operate an early education and care facility that is an education and care service to which the Children (Education and Care Services) National Law (NSW) applies or a State regulated education and care service to which the Children (Education and Care Services) Supplementary Provisions Act 2011 applies. Approved services are subject to various operational requirements under that legislation, including requirements for the physical environment of the approved service.

Note 2—

Complying development controls specifically for school-based child care are provided for in section 3.41.

3.22 Centre-based child care facility—concurrence of Regulatory Authority required for certain development

(1)  This section applies to development for the purpose of a centre-based child care facility if—

(a)  the floor area of the building or place does not comply with regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations, or

(b)  the outdoor space requirements for the building or place do not comply with regulation 108 (outdoor unencumbered space requirements) of those Regulations.

(2)  The consent authority must not grant development consent to development to which this section applies except with the concurrence of the Regulatory Authority.

(3)  The consent authority must, within 7 days of receiving a development application for development to which this section applies—

(a)  forward a copy of the development application to the Regulatory Authority, and

(b)  notify the Regulatory Authority in writing of the basis on which the Authority’s concurrence is required and of the date it received the development application.

(4)  In determining whether to grant or refuse concurrence, the Regulatory Authority is to consider any requirements applicable to the proposed development under the Children (Education and Care Services) National Law (NSW).

(5)  The Regulatory Authority is to give written notice to the consent authority of the Authority’s determination within 28 days after receiving a copy of the development application under subsection (3).

Note—

The effect of section 4.13(11) of the Act is that if the Regulatory Authority fails to inform the consent authority of the decision concerning concurrence within the 28 day period, the consent authority may determine the development application without the concurrence of the Regulatory Authority and a development consent so granted is not voidable on that ground.

(6)  The consent authority must forward a copy of its determination of the development application to the Regulatory Authority within 7 days after making the determination.

(7)  In this section—

Regulatory Authority means the Regulatory Authority for New South Wales under the Children (Education and Care Services) National Law (NSW) (as declared by section 9 of the Children (Education and Care Services National Law Application) Act 2010).

Note—

Concurrence to development may be granted subject to conditions. A development consent subject to concurrence may be voidable if it is granted not subject to any conditions of the concurrence. (See section 4.13 of the Act.)

3.23 Centre-based child care facility—matters for consideration by consent authorities

Before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development.

3.24 Centre-based child care facility in Zone IN1 or IN2—additional matters for consideration by consent authorities

(1)  The object of this section is to minimise land use conflicts with existing developments on surrounding land and to ensure the safety and health of people using or visiting a centre-based child care facility on land in Zone IN1 General Industrial or Zone IN2 Light Industrial.

(2)  The consent authority must consider the following matters before determining a development application for development for the purpose of a centre-based child care facility on land in Zone IN1 General Industrial or Zone IN2 Light Industrial—

(a)  whether the proposed development is compatible with neighbouring land uses, including its proximity to restricted premises, sex services premises or hazardous land uses,

(b)  whether the proposed development has the potential to restrict the operation of existing industrial land uses,

(c)  whether the location of the proposed development will pose a health or safety risk to children, visitors or staff.

(3)  The matters referred to in subsection (2) are in addition to any other matter that the consent authority must consider before determining a development application for development for the purpose of a centre-based child care facility.

3.25 Centre-based child care facility—floor space ratio

(1)  Development consent must not be granted for the purposes of a centre-based child care facility in Zone R2 Low Density Residential if the floor space ratio for the building on the site of the facility exceeds 0.5:1.

(2)  This section does not apply if another environmental planning instrument or a development control plan sets a maximum floor space ratio for the centre-based child care facility.

3.26 Centre-based child care facility—non-discretionary development standards

(1)  The object of this section is to identify development standards for particular matters relating to a centre-based child care facility that, if complied with, prevent the consent authority from requiring more onerous standards for those matters.

(2)  The following are non-discretionary development standards for the purposes of section 4.15(2) and (3) of the Act in relation to the carrying out of development for the purposes of a centre-based child care facility—

(a)  location—the development may be located at any distance from an existing or proposed early education and care facility,

(b)  indoor or outdoor space

(i)  for development to which regulation 107 (indoor unencumbered space requirements) or 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations applies—the unencumbered area of indoor space and the unencumbered area of outdoor space for the development complies with the requirements of those regulations, or

(ii)  for development to which clause 28 (unencumbered indoor space and useable outdoor play space) of the Children (Education and Care Services) Supplementary Provisions Regulation 2012 applies—the development complies with the indoor space requirements or the useable outdoor play space requirements in that clause,

(c)  site area and site dimensions—the development may be located on a site of any size and have any length of street frontage or any allotment depth,

(d)  colour of building materials or shade structures—the development may be of any colour or colour scheme unless it is a State or local heritage item or in a heritage conservation area.

(3)  To remove doubt, this section does not prevent a consent authority from—

(a)  refusing a development application in relation to a matter not specified in subsection (2), or

(b)  granting development consent even though any standard specified in subsection (2) is not complied with.

3.27 Centre-based child care facility—development control plans

(1)  A provision of a development control plan that specifies a requirement, standard or control in relation to any of the following matters (including by reference to ages, age ratios, groupings, numbers or the like, of children) does not apply to development for the purpose of a centre-based child care facility—

(a)  operational or management plans or arrangements (including hours of operation),

(b)  demonstrated need or demand for child care services,

(c)  proximity of facility to other early education and care facilities,

(d)  any matter relating to development for the purpose of a centre-based child care facility contained in—

(i)  the design principles set out in Part 2 of the Child Care Planning Guideline, or

(ii)  the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 of that Guideline (other than those concerning building height, side and rear setbacks or car parking rates).

(2)  This section applies regardless of when the development control plan was made.

3.28 Mobile child care—exempt development

(1)  Development for the purpose of mobile child care is exempt development for the purposes of this Chapter if it meets the standards specified for the development in subsections (2)–(4).

Note—

Exempt development must also comply with the general requirements in section 3.16.

(2)  The development must not be on any of the following land—

(a)  land within a flood control lot,

(b)  land identified on an Acid Sulfate Soils Map as being Class 1 or Class 2,

(c)  land that is significantly contaminated land within the meaning of the Contaminated Land Management Act 1997,

(d)  land that is identified by an environmental planning instrument, a development control plan or a policy adopted by the council as being or affected by a coastline hazard, a coastal hazard or a coastal erosion hazard,

(e)  bush fire prone land.

(3)  The premises on which the development is carried out—

(a)  must provide or have convenient access to adequate sanitary facilities for use by staff and children attending the service, and

(b)  must not be located within 200 metres (measured from the closest boundary of the lot on which the development is proposed) from any restricted premises, sex services premises, pub or registered club.

(4)  If the development involves the erection of a temporary structure, it—

(a)  must not restrict any car parking required to be provided by a condition of a development consent applying to the land or any vehicular or pedestrian access to or from the land unless that parking and access is on land owned, controlled or managed by a council or public authority and that council or public authority has given its written consent to the temporary use of the land for the erection of the temporary structure, and

(b)  must not redirect the flow of any surface water or ground water, or cause sediment to be transported, onto an adjoining property, and

(c)  must be erected on a surface that is sufficiently firm and level to sustain the structure while in use, and

(d)  must meet any development standard for the erection of a temporary structure imposed by a local environmental plan applying to the land that sets a separation distance to a side or rear boundary with adjoining land that is under different ownership.

Note—

In addition to the requirements set out in this Chapter in relation to exempt development, adjoining owners’ property rights, the applicable common law and other legislative requirements for approvals, licences, permits and authorities still apply.

(5)  Subsection (4)(d) does not apply in respect of adjoining land that is owned by the council or other public authority if the council or public authority has consented in writing to the development standard not applying.

(6)  In this section—

education and care service means a service that provides care (other than residential care) or care and education, whether directly or indirectly, for one or more children under the age of 6 years who do not ordinarily attend school (disregarding any children who are related to the person providing the care).

mobile child care means an education and care service that visits premises, an area or a place for the purpose of providing child care, but does not include any of the following—

(a)  a babysitting, playgroup or child-minding service that is organised informally by the parents of the children concerned,

(b)  a service involving medical or clinical care provided by a hospital,

(c)  a service that is concerned primarily with the provision of private tutoring, or lessons or coaching in, or providing for participation in, a cultural, recreational, religious or sporting activity.

3.29 Temporary emergency relocation of early education and child care facility—exempt development

(1)  Development for the purpose of an early education and care facility is exempt development for the purposes of this Chapter if—

(a)  the building or place to be used for the development already exists, and

(b)  the development—

(i)  is necessary to enable an early education and care facility to be temporarily relocated following, or in anticipation of, an emergency, and

(ii)  meets the standards specified for the development in this section.

Note—

Exempt development must also comply with the general requirements in section 3.16.

(2)  The standards for the development are as follows—

(a)  the development must be carried out within, and the period of the temporary use must not exceed, 12 months, starting from the date on which a service approval to operate the relocated early education and care facility is granted,

(b)  the development must not be on any of the following land—

(i)  land within a flood control lot,

(ii)  land identified on an Acid Sulfate Soils Map as being Class 1 or Class 2,

(iii)  land that is significantly contaminated land within the meaning of the Contaminated Land Management Act 1997,

(iv)  land that is identified by an environmental planning instrument, a development control plan or a policy adopted by the council as being or affected by a coastline hazard, a coastal hazard or a coastal erosion hazard,

(v)  bush fire prone land,

(c)  the premises on which the development is carried out—

(i)  must provide or have convenient access to adequate sanitary facilities for use by staff and children attending the service, and

(ii)  must not be located within 200 metres (measured from the closest boundary of the lot on which the development is proposed) from any restricted premises, sex services premises, pub or registered club.

(3)  In this section—

emergency means an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which endangers, or threatens to endanger, the safety or health of persons in the early education and care facility or destroys or damages, or threatens to destroy or damage, the facility.

3.30 Home-based child care—exempt development

Development carried out by or on behalf of any person for the purpose of home-based child care is exempt development for the purposes of this Chapter if it is not carried out on bush fire prone land.

Note 1—

No standards are specified for this development. However, exempt development must comply with the general requirements in section 3.16.

Note 2—

The elements that must comprise this type of development are specified in the definition for this development in the Standard Instrument (see also the note to section 3.3(1) of this Chapter). If all the elements are not present, the development is not development to which this section applies.

3.31 Home-based child care—complying development

(1)  Development carried out by or on behalf of any person for the purpose of home-based child care is complying development for the purposes of this Chapter if it complies with this section.

Note—

Complying development must also comply with the general requirements in section 3.18 (other than section 3.18(2)(c)).

(2)  The use of the dwelling used for home-based child care (the dwelling) as a dwelling must be permitted, with or without development consent, under an environmental planning instrument applying to the land on which the development is carried out.

(3)  If the development is carried out on bush fire prone land, the following standards also apply—

(a)  an asset protection zone that is not on a slope exceeding 18 degrees and that is in accordance with Planning for Bush Fire Protection must be established for the dwelling,

(b)  a bush fire emergency management and evacuation plan must be prepared in accordance with the following—

(i)  Development Planning A guide to developing a Bush Fire Emergency Management and Evacuation Plan, published by the NSW Rural Fire Service in December 2014,

(ii)  AS 3745—2010, Planning for emergencies in facilities,

(c)  any associated access way is on land that is—

(i)  not in bush fire attack level-40 (BAL-40) or the flame zone (BAL-FZ), or

Note—

See section 3.19 in relation to when land is not in bush fire attack level-40 (BAL-40) or the flame zone (BAL-FZ).

(ii)  grasslands,

(d)  the lot on which the development is carried out (the relevant lot) must have direct access to a public road or a road vested in or maintained by the council,

(e)  there must be—

(i)  a reticulated water supply connection to the relevant lot and a fire hydrant within 70m of the part of the development carried out on bush fire prone land, or

(ii)  a 10,000 L capacity water tank on the relevant lot,

(f)  mains electricity must be connected to the relevant lot,

(g)  reticulated or bottled gas on the relevant lot must be installed and maintained in accordance with AS/NZS 1596:2014, The storage and handling of LP Gas and the requirements of relevant authorities (such as the requirement that metal piping must be used),

(h)  any gas cylinders on the relevant lot that are within 10m of a dwelling must—

(i)  have the release valves directed away from the dwelling, and

(ii)  be enclosed on the hazard side of the installation, and

(iii)  have metal connections to and from the cylinders,

(i)  there must be no polymer sheathed flexible gas supply lines to gas meters adjacent to any dwelling on the relevant lot or an adjoining lot.

Note—

The requirements relating to the construction of buildings in bush fire prone areas set out in the Building Code of Australia also apply.

(4)  Section 3.18(2)(c) does not apply to complying development under this section.

3.32 Out-of-school hours care at existing universities—complying development

(1)  Development carried out by or on behalf of any person for the purpose of out-of-school hours care (including vacation care) for primary school children is complying development for the purposes of this Chapter if it complies with this section.

Note—

Complying development must also comply with the general requirements in section 3.18.

(2)  The standards specified for the development are as follows—

(a)  the development must be carried out in an existing building within the boundaries of an existing university,

(b)  the development must not involve new building works,

(c)  the building—

(i)  must not be located on bush fire prone land, and

(ii)  must not be located on land within a flood control lot,

(d)  the building’s premises must not be licensed to sell alcohol or to operate gaming machines,

(e)  the premises on which the development is carried out—

(i)  must have a floor area that complies with regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations, and

(ii)  must have outdoor space that complies with regulation 108 (outdoor unencumbered space requirements) of those Regulations, and

(iii)  must have a dedicated entrance, and

(iv)  must have exclusive access to, and use of, on-site, age appropriate (K–Year 6) sanitary facilities during hours of operation, and

(v)  must have a documented and accessible emergency and fire evacuation plan, and

(vi)  must not be located within or adjacent to any building in which is located any restricted premises, sex services premises, pub or registered club.

(3)  Nothing in this section authorises the carrying out of development in contravention of any existing condition of the development consent currently operating (other than a complying development certificate) that applies to any part of the university, relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management, landscaping or student or staff numbers.

3.33 Out-of-school hours care at existing TAFE establishments—complying development

(1)  Development carried out by or on behalf of any person for the purpose of out-of-school hours care (including vacation care) for primary school children is complying development for the purposes of this Chapter if it complies with this section.

Note—

Complying development must also comply with the general requirements in section 3.18.

(2)  The standards specified for the development are as follows—

(a)  the development must be carried out in an existing building within the boundaries of an existing TAFE establishment,

(b)  the development must not involve new building works,

(c)  the building—

(i)  must not be located on bush fire prone land, and

(ii)  must not be located on land within a flood control lot,

(d)  the building’s premises must not be licensed to sell alcohol or to operate gaming machines,

(e)  the premises on which the development is carried out—

(i)  must have a floor area that complies with regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations, and

(ii)  must have outdoor space that complies with regulation 108 (outdoor unencumbered space requirements) of those Regulations, and

(iii)  must have a dedicated entrance, and

(iv)  must have exclusive access to, and use of, on-site, age appropriate (K–Year 6) sanitary facilities during hours of operation, and

(v)  must have a documented and accessible emergency and fire evacuation plan, and

(vi)  must not be located within or adjacent to any building in which is located any restricted premises, sex services premises, pub or registered club.

(3)  Nothing in this section authorises the carrying out of development in contravention of any existing condition of the development consent currently operating (other than a complying development certificate) that applies to any part of the TAFE establishment, relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management, landscaping or student or staff numbers.

Part 3.4 Schools—specific development controls

3.34 Interpretation

(1)  In this Part—

prescribed zone means any of the following land use zones—

(a)  Zone RU2 Rural Landscape,

(b)  Zone RU4 Primary Production Small Lots,

(c)  Zone RU5 Village,

(d)  Zone RU6 Transition,

(e)  Zone R1 General Residential,

(f)  Zone R2 Low Density Residential,

(g)  Zone R3 Medium Density Residential,

(h)  Zone R4 High Density Residential,

(i)  Zone R5 Large Lot Residential,

(j)  Zone B1 Neighbourhood Centre,

(k)  Zone B2 Local Centre,

(l)  Zone B3 Commercial Core,

(m)  Zone B4 Mixed Use,

(n)  Zone B5 Business Development,

(o)  Zone B6 Enterprise Corridor,

(p)  Zone B7 Business Park,

(q)  Zone B8 Metropolitan Centre,

(r)  Zone SP1 Special Activities,

(s)  Zone SP2 Infrastructure,

(t)  Zone E4 Environmental Living.

(2)  In this Part, development for the purposes of a school does not include development for the purposes of campus student accommodation.

3.35 Development for purposes of campus student accommodation

(1)  Despite section 3.34(2), development for the purposes of campus student accommodation may be carried out by a person with development consent on land within the boundaries of the school.

(2)  Development consent must not be granted if the development involves the subdivision of land.

(3)  Development consent must not be granted unless the consent authority has considered the design quality of the development, evaluated in accordance with the design quality principles set out in Schedule 8.

(4)  For the purposes of subsection (3), a reference in Schedule 8 to a school is taken to include a reference to campus student accommodation.

3.36 Schools—development permitted with consent

(1)  Development for the purpose of a school may be carried out by any person with development consent on land in a prescribed zone.

(2)  Development for a purpose specified in section 3.40(1) or 3.41(2)(e) may be carried out by any person with development consent on land within the boundaries of an existing school.

(3)  Development for the purpose of a school may be carried out by any person with development consent on land that is not in a prescribed zone if it is carried out on land within the boundaries of an existing school.

(4)  Subsection (3) does not require development consent to carry out development on land if that development could, but for this Chapter, be carried out on that land without development consent.

(5)  A school (including any part of its site and any of its facilities) may be used, with development consent, for the physical, social, cultural or intellectual development or welfare of the community, whether or not it is a commercial use of the establishment.

(6)  Before determining a development application for development of a kind referred to in subsection (1), (3) or (5), the consent authority must take into consideration—

(a)  the design quality of the development when evaluated in accordance with the design quality principles set out in Schedule 8, and

(b)  whether the development enables the use of school facilities (including recreational facilities) to be shared with the community.

(7)  Subject to subsection (8), the requirement in subsection (6)(a) applies to the exclusion of any provision in another environmental planning instrument that requires, or that relates to a requirement for, excellence (or like standard) in design as a prerequisite to the granting of development consent for development of that kind.

(8)  A provision in another environmental planning instrument that requires a competitive design process to be held as a prerequisite to the granting of development consent does not apply to development to which subsection (6)(a) applies that has a capital investment value of less than $50 million.

(9)  A provision of a development control plan that specifies a requirement, standard or control in relation to development of a kind referred to in subsection (1), (2), (3) or (5) is of no effect, regardless of when the development control plan was made.

(10)  Development for the purpose of a centre-based child care facility may be carried out by any person with development consent on land within the boundaries of an existing school.

3.37 Schools—development permitted without consent

(1)  Development for any of the following purposes may be carried out by or on behalf of a public authority without development consent on land within the boundaries of an existing school—

(a)  construction, operation or maintenance, more than 5 metres from any property boundary with land in a residential zone and more than 1 metre from any property boundary with land in any other zone, of—

(i)  a library or an administration building that is not more than 2 storeys high, or

(ii)  a portable classroom (including a modular or prefabricated classroom) that is not more than 2 storeys high, or

(iii)  a permanent classroom that is not more than 2 storeys high to replace an existing portable classroom and that is used for substantially the same purpose as the portable classroom, or

(iv)  a kiosk or shop selling school-related goods to students and staff, such as books, stationery or school uniforms, that is not more than 2 storeys high, or

(v)  a cafeteria or canteen that is not more than 2 storeys high and carried out in accordance with AS 4674—2004, Design, construction and fit-out of food premises, published by Standards Australia on 11 February 2004, or

(vi)  a car park that is not more than 1 storey high,

(b)  minor alterations or additions, such as—

(i)  internal fitouts, or

(ii)  alterations or additions to address work health and safety requirements or to provide access for people with a disability, or

(iii)  alterations or additions to the external facade of a building that do not increase the building envelope (for example, porticos, balcony enclosures or covered walkways),

(c)  restoration, replacement or repair of damaged buildings or structures,

(d)  security measures, including fencing, lighting and security cameras,

(e)  demolition of structures or buildings (unless a State heritage item or local heritage item).

(2)  Subsection (1) applies only if the development does not require an alteration of traffic arrangements, for example, a new vehicular access point to the school or a change in location of an existing vehicular access point to the school.

(3)  Subsection (1)(a) applies only if the development does not result in a prohibited increase in student or staff numbers.

(4)  Nothing in this section authorises the carrying out of development in contravention of any existing condition of the development consent currently operating (other than a complying development certificate) that applies to any part of the school, relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management, landscaping or student or staff numbers.

(5)  A reference in this section to development for a purpose referred to in subsection (1)(a), (b) or (c) includes a reference to development for the purpose of construction works in connection with the purpose referred to in subsection (1)(a), (b) or (c).

(6)  This section does not apply to development for the purposes of campus student accommodation.

(7)  In this section—

prohibited increase in student or staff numbers means—

(a)  an increase in the number of students that the school can accommodate that is more than the greater of 10% or 30 students, compared with the average number of students for the 12 months immediately before the commencement of the development, or

(b)  an increase in the number of staff employed at the school that is more than 10%, compared with the average number of staff for the 12 months immediately before the commencement of the development.

Note—

Section 100B(3) of the Rural Fires Act 1997 requires a person to obtain a bush fire safety authority under that Act before developing bush fire prone land for a special fire protection purpose such as a school.

3.38 Notification of carrying out of certain development without consent

(1)  This section applies to development to which section 3.37(1)(a) applies.

(2)  Before development to which this section applies is carried out, the proponent of the development must—

(a)  give written notice of the intention to carry out the development to the council for the area in which the land is located (unless the proponent is that council) and to the occupiers of adjoining land, and

(b)  take into consideration any response to the notice that is received within 21 days after the notice is given.

3.39 Existing schools—exempt development

(1)  Development for any of the following purposes is exempt development if it is on land within the boundaries of an existing school and complies with any requirements of this subsection that apply to the development—

(a)  an awning or canopy attached to a building, that is more than 1 metre from any property boundary,

(b)  the removal or pruning of a tree that has been assessed by a Level 5 qualified arborist as posing a risk to human health or safety or of damage to infrastructure, but only if a replacement tree that is capable of achieving a mature height of 3 metres or more is planted within the grounds of the school,

(c)  landscaping, including irrigation schemes (whether using recycled or other water),

(d)  play equipment where adequate safety provisions (including soft landing surfaces) are provided, but only if any structure is more than 1.2 metres from any fence,

(e)  routine maintenance (including earthworks associated with playing field regrading or landscaping),

(f)  walking paths (including raised walking paths), boardwalks, ramps, minor pedestrian bridges, stairways, gates, seats, barbecues, shelters and shade structures,

(g)  a sporting field, tennis court, basketball court or any other type of court used for sport, and associated awnings or canopies,

(h)  the use of existing facilities or buildings for the purposes of school-based child care between the hours of 7:00am and 7:00pm on a weekday only, whether or not it is a commercial use of the establishment,

(i)  the use of existing facilities or buildings for the physical, social, cultural or intellectual development or welfare of the community, whether or not it is a commercial use of the establishment,

(j)  an amenities building, workshop or storage shed—

(i)  that is not more than 1 storey high, and

(ii)  that is more than 5 metres from any property boundary with land in a residential zone and more than 1 metre from any property boundary with land in any other zone,

(k)  environmental management works,

(l)  a short-term portable classroom (including its removal)—

(i)  that is not more than 1 storey high, and

(ii)  that is more than 5 metres from any property boundary with land in a residential zone and more than 1 metre from any property boundary with land in any other zone, and

(iii)  that is removed within 48 months of being installed,

(m)  demolition of development that would be exempt development under this or any other environmental planning instrument if it were being constructed or installed, if it is not carried out on or in a State or local heritage item or in a heritage conservation area.

Note—

Exempt development must also comply with the general requirements in section 3.16.

(2)  Section 3.16(3)(g), to the extent that it relates to a permit or approval required under an environmental planning instrument, does not apply in relation to development carried out under subsection (1)(b).

(3)  Development for a purpose specified in Schedule 5 that is carried out by a person other than a public authority is exempt development if—

(a)  it is carried out on land within the boundaries of an existing school, and

(b)  it meets the development standards for the development specified in Schedule 5.

Note 1—

Exempt development must also comply with the general requirements in section 3.16.

Note 2—

Section 3.17 covers development carried out by or on behalf of a public authority.

(4)  This section applies to development for the purposes of existing campus student accommodation on land within the boundaries of the existing school with which the accommodation is associated only.

3.40 Existing schools—complying development

(1)  Development carried out by or on behalf of any person on land within the boundaries of an existing school is complying development if—

(a)  it consists of the construction of, or alterations or additions to, any of the following—

(i)  a library, an administration building or office premises for the purposes of the school,

(ii)  a gym, indoor sporting facility or hall,

(iii)  a teaching facility (including a classroom or lecture theatre), laboratory, trade facility or training facility,

(iv)  a cafeteria or canteen that is carried out in accordance with AS 4674—2004, Design, construction and fit-out of food premises, published by Standards Australia on 11 February 2004,

(v)  a kiosk or shop selling school-related goods to students and staff, such as books, stationery or school uniforms,

(vi)  a hall with associated covered outdoor learning area or kiosk,

(vii)  an outdoor learning or play area and associated awning or canopy,

(viii)  demolition of a building or structure (unless a State heritage item or local heritage item),

(ix)  minor alterations or additions (such as internal fitouts, structural upgrades, or alterations or additions to enable plant or equipment to be installed, to address work health and safety requirements or to provide access for people with a disability),

(x)  restoration, replacement or repair of a damaged building or structure, and

(b)  it complies with this section.

(2)  Development carried out by or on behalf of any person on land within the boundaries of an existing school is complying development if—

(a)  it is an alteration or addition referred to in subsection (1) or section 3.41(2)(e) that is carried out for the purpose of a change of use to another use specified in subsection (1), and

(b)  it complies with this section.

(3)  Development carried out by or on behalf of any person on land within the boundaries of an existing school for the purposes of campus student accommodation is complying development if the development—

(a)  involves only—

(i)  a minor alteration or addition to a building that does not result in an increase in the gross floor area or height of the building, or

Example—

Minor alterations and additions include internal fitouts, structural upgrades, or alterations or additions to enable plant or equipment to be installed, to address work health and safety requirements or to provide access for people with a disability.

(ii)  the restoration, replacement or repair of a damaged building that does not result in an increase in the gross floor area or height of the building, and

(b)  complies with this section.

(4)  Except as provided by subsection (3), development for the purposes of campus student accommodation is not complying development under this section.

(5)  The development standards for complying development under this section (other than for development referred to in subsection (1)(a)(viii), (ix) or (x)) are set out in Schedule 6.

(6)  Development that will result in the erection of a building over a registered easement is not complying development under this section.

(7)  Nothing in this section authorises the carrying out of development in contravention of any existing condition of the development consent currently operating (other than a complying development certificate) that applies to any part of the school, relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management, landscaping or student or staff numbers.

Note 1—

Complying development must also comply with the general requirements in section 3.18.

Note 2—

Development to which the Rural Fires Act 1997, section 100B(1) applies is not complying development under this Chapter.

3.41 School-based child care—complying development

(1)  Development carried out by or on behalf of any person for the purpose of school-based child care is complying development for the purposes of this Chapter if it complies with this section.

Note—

Complying development must also comply with the general requirements in section 3.18.

(2)  The standards specified for the development are as follows—

(a)  the development must be carried out within the boundaries of an existing school,

(b)  the development must not be on bush fire prone land,

(c)  the current use of the premises must not be an existing use within the meaning of section 4.65 of the Act,

(d)  if there is no existing condition on development consent applying to the school relating to the hours of operation—the school-based child care must not operate on a Saturday or Sunday, or before 7.00 am or after 7.00 pm on a weekday,

(e)  if the development consists of the construction of, or alterations or additions to, school-based child care—the development must comply with the standards set out in Schedule 6.

Note—

A service approval is required to operate an early education and care facility that is an education and care service to which the Children (Education and Care Services) National Law (NSW) applies or a State regulated education and care service to which the Children (Education and Care Services) Supplementary Provisions Act 2011 applies. Approved services are subject to various operational requirements under that legislation, including requirements for the physical environment of the approved service (for example, minimum requirements for indoor and outdoor space).

(3)  Nothing in this section authorises the carrying out of development in contravention of any existing condition of the development consent currently operating (other than a complying development certificate) that applies to any part of the school, relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management, landscaping or student or staff numbers.

3.42 Complying development certificates—additional conditions

A complying development certificate for development that is complying development under this Part is subject to the following conditions (in addition to the conditions set out in section 3.18)—

(a)  any demolition work must be carried out in accordance with AS 2601—2001The demolition of structures, published by Standards Australia on 13 September 2001,

(b)  any removal or pruning of vegetation must be carried out in accordance with AS 4970—2009Protection of trees on development sites,

(c)  development must be carried out in accordance with all relevant requirements of the Blue Book,

(d)  the person having the benefit of the complying development certificate must give at least 2 days notice in writing of the intention to commence the works to the owner or occupier of any dwelling that is situated within 20 metres of the lot on which the works will be carried out.

3.43 State significant development for the purpose of schools—application of development standards in environmental planning instruments

Development consent may be granted for development for the purpose of a school that is State significant development even though the development would contravene a development standard imposed by this or any other environmental planning instrument under which the consent is granted.

Part 3.5 Universities—specific development controls

3.44 Interpretation

(1)  In this Part—

prescribed zone means—

(a)  any land within the boundaries of an existing university, or

(b)  any of the following land use zones—

(i)  Zone RU2 Rural Landscape,

(ii)  Zone RU4 Primary Production Small Lots,

(iii)  Zone RU5 Village,

(iv)  Zone RU6 Transition,

(v)  Zone R1 General Residential,

(vi)  Zone R2 Low Density Residential,

(vii)  Zone R3 Medium Density Residential,

(viii)  Zone R4 High Density Residential,

(ix)  Zone R5 Large Lot Residential,

(x)  Zone B1 Neighbourhood Centre,

(xi)  Zone B2 Local Centre,

(xii)  Zone B3 Commercial Core,

(xiii)  Zone B4 Mixed Use,

(xiv)  Zone B5 Business Development,

(xv)  Zone B6 Enterprise Corridor,

(xvi)  Zone B7 Business Park,

(xvii)  Zone B8 Metropolitan Centre,

(xviii)  Zone SP1 Special Activities,

(xix)  Zone SP2 Infrastructure,

(xx)  Zone E4 Environmental Living.

(2)  In this Part, development for the purposes of a university does not include development for the purposes of campus student accommodation.

3.45 Development for purposes of campus student accommodation

(1)  Despite section 3.44(2), development for the purposes of campus student accommodation may be carried out by a person with development consent on land within the boundaries of the university.

(2)  Development consent must not be granted if the development involves the subdivision of land.

(3)  Development consent must not be granted unless the consent authority has considered the design quality of the development, evaluated in accordance with the design quality principles set out in Schedule 8.

(4)  For the purposes of subsection (3), a reference in Schedule 8 to a school is taken to include a reference to campus student accommodation.

3.46 Universities—development permitted with consent

(1)  Development for the purpose of a university may be carried out by any person with development consent on land in a prescribed zone.

(2)  Development for a purpose specified in section 3.50(1) may be carried out by any person with development consent on land within the boundaries of an existing university.

(3)  Development for the purpose of a university may be carried out by any person with development consent on land that is not in a prescribed zone if it is carried out on land within the boundaries of an existing university.

(4)  Subsection (3) does not require development consent to carry out development on land if that development could, but for this Chapter, be carried out on that land without development consent.

(5)  A university (including any part of its site and any of its facilities) may be used, with development consent, for the physical, social, cultural or intellectual development or welfare of the community, whether or not it is a commercial use of the establishment.

(6)  Development for the purpose of a centre-based child care facility may be carried out by any person with development consent on land within the boundaries of an existing university.

3.47 Universities—development permitted without consent

(1)  Development for any of the following purposes may be carried out by or on behalf of a public authority without development consent on land within the boundaries of an existing university—

(a)  construction, operation or maintenance, more than 5 metres from any property boundary with land in a residential zone and more than 1 metre from any property boundary with land in any other zone, of—

(i)  a library or an administration building that is not more than 2 storeys high, or

(ii)  a teaching facility (including a classroom or lecture theatre), laboratory, trade facility or training facility that is not more than 2 storeys high, or

(iii)  an environmental facility, including a greenhouse or glass house, that is not more than 2 storeys high, or

(iv)  an information and education facility that is not more than 2 storeys high, or

(v)  a storage or maintenance facility that is not more than 2 storeys high, or

(vi)  a car park that is not more than 1 storey high, or

(vii)  an outdoor learning or play area and associated awnings or canopies, or

(viii)  a kiosk or shop selling university-related goods to students and staff, such as books, stationery or university merchandise, that is not more than 2 storeys high, or

(ix)  a cafeteria or canteen that is not more than 2 storeys high and carried out in accordance with AS 4674—2004, Design, construction and fit-out of food premises, published by Standards Australia on 11 February 2004,

(b)  minor alterations or additions to a building, such as—

(i)  internal fitouts, structural upgrades, alterations or additions to enable plant or equipment to be installed, or

(ii)  alterations or additions to address work health and safety requirements or to provide access for people with a disability,

(c)  restoration, replacement or repair of damaged buildings or structures,

(d)  demolition of structures or buildings (unless a State heritage item or local heritage item).

(2)  However, subsection (1) applies only to development that—

(a)  does not require an alteration of transport or traffic arrangements, and

(b)  does not cause the contravention of any existing condition of the development consent currently operating (other than a complying development certificate) that applies to the university relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management, landscaping or student or staff numbers, and

(c)  complies with—

(i)  any development standard that sets a maximum floor space ratio, and

(ii)  any development standard that sets a maximum gross floor area,

for a building on the land, imposed under a local environmental plan, and

(d)  if the development involves an alteration or addition to a building—

(i)  does not extend the gross floor area of the existing building by more than 50%, and

(ii)  does not result in the building having a gross floor area of more than 2,000 square metres, and

(e)  if the development is on a site with an area of—

(i)  2,000 square metres or less—does not result in the floor space ratio for all buildings on the site exceeding 1:1, or

(ii)  more than 2,000 square metres—does not extend the existing gross floor area for all buildings on the site by more than 2,000 square metres.

(3)  A reference in this section to development for a purpose referred to in subsection (1)(a), (b) or (c) includes a reference to development for the purpose of construction works in connection with the purpose referred to in subsection (1)(a), (b) or (c).

(4)  This section does not apply to development for the purposes of campus student accommodation.

(5)  In this section—

site means one or more lots that are contiguous and owned by the same entity.

3.48 Notification of carrying out of certain development without consent

(1)  This section applies to development to which section 3.47(1)(a) applies.

(2)  Before development to which this section applies is carried out, the proponent of the development must—

(a)  give written notice of the intention to carry out the development to the council for the area in which the land is located (unless the proponent is that council) and to the occupiers of adjoining land, and

(b)  take into consideration any response to the notice that is received within 21 days after the notice is given.

3.49 Existing universities—exempt development

(1)  Development for any of the following purposes is exempt development if it is on land within the boundaries of an existing university and complies with any requirements of this subsection that apply to the development—

(a)  an awning or canopy attached to a building, that is more than 1 metre from any property boundary,

(b)  the removal or pruning of a tree that has been assessed by a Level 5 qualified arborist as posing a risk to human health or safety or of damage to infrastructure, but only if a replacement tree that is capable of achieving a mature height of 3 metres or more is planted within the grounds of the university,

(c)  landscaping, including irrigation schemes (whether using recycled or other water),

(d)  play equipment where adequate safety provisions (including soft landing surfaces) are provided, but only if any structure is more than 1.2 metres from any fence,

(e)  routine maintenance (including earthworks associated with playing field regrading or landscaping, and maintenance of existing access roads),

(f)  cycleways, walking paths (including raised walking paths), boardwalks, ramps, minor pedestrian bridges, stairways, gates, seats, barbecues, shelters and shade structures,

(g)  a recreation facility (outdoor), including a playing field (but not including a grandstand or other viewing structure),

(h)  an amenities building—

(i)  that is not more than 1 storey high, and

(ii)  that is more than 5 metres from any property boundary with land in a residential zone and more than 1 metre from any property boundary with land in any other zone,

(i)  environmental management works,

(j)  a portable or temporary teaching facility, office amenities, storage facility, maintenance facility, office or kiosk (including its removal)—

(i)  that is not more than 1 storey high, and

(ii)  that is more than 5 metres from any property boundary with land in a residential zone and more than 1 metre from any property boundary with land in any other zone, and

(iii)  that is removed within 7 days after the use ends,

Note—

See Schedule 5 for the development standards for a portable office.

(k)  demolition of development that would be exempt development under this or any other environmental planning instrument if it were being constructed or installed, if it is not carried out on or in a State or local heritage item or a draft heritage item or in a heritage conservation area or a draft heritage conservation area.

Note—

Exempt development must also comply with the general requirements in section 3.16.

(2)  Section 3.16(3)(g), to the extent that it relates to a permit or approval required under an environmental planning instrument, does not apply in relation to development carried out under subsection (1)(b).

(3)  Development for a purpose specified in Schedule 5 that is carried out by a person other than a public authority is exempt development if—

(a)  it is carried out on land within the boundaries of an existing university, and

(b)  it meets the development standards for the development specified in Schedule 5.

Note 1—

Exempt development must also comply with the general requirements in section 3.16.

Note 2—

Section 3.17 covers development carried out by or on behalf of a public authority.

(4)  This section applies to development for the purposes of existing campus student accommodation on land within the boundaries of the existing university with which the accommodation is associated only.

3.50 Existing universities—complying development

(1)  Development carried out by or on behalf of any person on land within the boundaries of an existing university is complying development if—

(a)  it consists of the construction of, or alterations or additions to, any of the following—

(i)  a library or an administration building or office premises for the purposes of the university,

(ii)  a recreation facility (indoor) or recreation facility (outdoor),

(iii)  a teaching facility (including a classroom or lecture theatre), laboratory, trade facility or training facility,

(iv)  food and drink premises (other than pubs or bars) to provide for students or staff (or both) that are carried out in accordance with AS 4674—2004, Design, construction and fit-out of food premises, published by Standards Australia on 11 February 2004,

(v)  one or more shops for students or staff (or both),

(vi)  a hall, including a hall with an associated covered outdoor learning area or kiosk,

(vii)  an environmental facility, including a greenhouse or glass house,

(viii)  an information and education facility,

(ix)  a community facility,

(x)  a storage or maintenance facility,

(xi)  an amenities building,

(xii)  demolition of a building (unless a State heritage item or local heritage item),

(xiii)  minor alterations or additions (such as internal fitouts, structural upgrades, alterations or additions to enable plant or equipment to be installed, or alterations or additions to address work health and safety requirements or to provide access for people with a disability),

(xiv)  restoration, replacement or repair of a damaged building or structure, and

(b)  it complies with this section.

(2)  Development carried out by or on behalf of any person on land within the boundaries of an existing university is complying development if—

(a)  it is carried out on land in a prescribed zone, and

(b)  it is an alteration or addition referred to in subsection (1) that is carried out for the purpose of a change of use to another use specified in subsection (1), and

(c)  it complies with this section.

(3)  Development carried out by or on behalf of any person on land within the boundaries of an existing university for the purposes of campus student accommodation is complying development if the development—

(a)  involves only—

(i)  a minor alteration or addition to a building that does not result in an increase in the gross floor area or height of the building, or

Example—

Minor alterations and additions include internal fitouts, structural upgrades, or alterations or additions to enable plant or equipment to be installed, to address work health and safety requirements or to provide access for people with a disability.

(ii)  the restoration, replacement or repair of a damaged building that does not result in an increase in the gross floor area or height of the building, and

(b)  complies with this section.

(4)  Except as provided by subsection (3), development for the purposes of campus student accommodation is not complying development under this section.

(5)  The development standards for complying development under this section are set out in Schedule 7.

(6)  Development that will result in the erection of a building over a registered easement is not complying development under this section.

(7)  Section 3.18(2)(e), to the extent that it relates to a permit or approval required under an environmental planning instrument, does not apply in relation to development carried out under this section.

(8)  Nothing in this section authorises the carrying out of development in contravention of any existing condition of the development consent currently operating (other than a complying development certificate) that applies to any part of the university, relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management, landscaping or student or staff numbers.

(9)  In this section—

site means one or more lots that are contiguous and owned by the same entity.

Note—

Complying development must also comply with the general requirements in section 3.18.

Part 3.6 TAFE establishments—specific development controls

3.51 Interpretation

(1)  In this Part—

prescribed zone means—

(a)  any land within the boundaries of an existing TAFE establishment, or

(b)  any of the following land use zones—

(i)  Zone RU1 Primary Production,

(ii)  Zone RU2 Rural Landscape,

(iii)  Zone RU4 Primary Production Small Lots,

(iv)  Zone RU5 Village,

(v)  Zone RU6 Transition,

(vi)  Zone R1 General Residential,

(vii)  Zone R2 Low Density Residential,

(viii)  Zone R3 Medium Density Residential,

(ix)  Zone R4 High Density Residential,

(x)  Zone R5 Large Lot Residential,

(xi)  Zone B1 Neighbourhood Centre,

(xii)  Zone B2 Local Centre,

(xiii)  Zone B3 Commercial Core,

(xiv)  Zone B4 Mixed Use,

(xv)  Zone B5 Business Development,

(xvi)  Zone B6 Enterprise Corridor,

(xvii)  Zone B7 Business Park,

(xviii)  Zone B8 Metropolitan Centre,

(xix)  Zone IN1 General Industrial,

(xx)  Zone IN2 Light Industrial,

(xxi)  Zone SP1 Special Activities,

(xxii)  Zone SP2 Infrastructure,

(xxiii)  Zone E4 Environmental Living.

(2)  In this Part, development for the purposes of a TAFE establishment does not include development for the purposes of campus student accommodation.

3.52 Development for purposes of campus student accommodation

(1)  Despite section 3.51(2), development for the purposes of campus student accommodation may be carried out by a person with development consent on land within the boundaries of the TAFE establishment.

(2)  Development consent must not be granted if the development involves the subdivision of land.

(3)  Development consent must not be granted unless the consent authority has considered the design quality of the development, evaluated in accordance with the design quality principles set out in Schedule 8.

(4)  For the purposes of subsection (3), a reference in Schedule 8 to a school is taken to include a reference to campus student accommodation.

3.53 TAFE establishments—development permitted with consent

(1)  Development for the purpose of a TAFE establishment may be carried out by any person with development consent on land in a prescribed zone.

(2)  Development for a purpose specified in section 3.57(1) may be carried out by any person with development consent on land within the boundaries of an existing TAFE establishment.

(3)  Development for the purpose of a TAFE establishment may be carried out by any person with development consent on land that is not in a prescribed zone if it is carried out on land within the boundaries of an existing TAFE establishment.

(4)  A TAFE establishment (including any part of its site and any of its facilities) may be used, with development consent, for the physical, social, cultural or intellectual development or welfare of the community, whether or not it is a commercial use of the establishment.

(5)  Subsection (3) does not require development consent to carry out development on land if that development could, but for this Chapter, be carried out on that land without development consent.

(6)  Development for the purpose of a centre-based child care facility may be carried out by any person with development consent on land within the boundaries of an existing TAFE establishment.

3.54 TAFE establishments—development permitted without consent

(1)  Development for any of the following purposes may be carried out by or on behalf of a public authority without development consent on land within the boundaries of an existing TAFE establishment—

(a)  construction, operation or maintenance, more than 5 metres from any property boundary with land in a residential zone and more than 1 metre from any property boundary with land in any other zone, of—

(i)  a library or an administration building that is not more than 2 storeys high, or

(ii)  a teaching facility (including a classroom or lecture theatre), laboratory, trade facility or training facility that is not more than 2 storeys high, or

(iii)  food and drink premises (other than pubs or bars) to provide for students or staff (or both) that are not more than 2 storeys high and are carried out in accordance with AS 4674—2004, Design, construction and fit-out of food premises, published by Standards Australia on 11 February 2004, or

(iv)  one or more shops for students or staff (or both) that are not more than 2 storeys high, or

(v)  a car park that is not more than 1 storey high, or

(vi)  an environmental facility, including a greenhouse or glass house, that is not more than 2 storeys high, or

(vii)  an information and education facility that is not more than 2 storeys high, or

(viii)  a storage or maintenance facility that is not more than 2 storeys high, or

(ix)  an outdoor learning or play area and associated awnings or canopies,

(b)  minor alterations or additions, such as—

(i)  internal fitouts, structural upgrades, alterations or additions to enable plant or equipment to be installed, or

(ii)  alterations or additions to address work health and safety requirements or to provide access for people with a disability,

(c)  restoration, replacement or repair of damaged buildings or structures,

(d)  demolition of buildings or structures (unless a State heritage item or local heritage item).

(2)  However, subsection (1) applies only to development that—

(a)  does not require an alteration of transport or traffic arrangements, and

(b)  does not cause the contravention of any existing condition of the development consent currently operating (other than a complying development certificate) that applies to the TAFE establishment relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management, landscaping or student or staff numbers, and

(c)  complies with—

(i)  any development standard that sets a maximum floor space ratio, and

(ii)  any development standard that sets a maximum gross floor area,

for a building on the land, imposed under a local environmental plan, and

(d)  if the development involves an alteration or addition to a building—

(i)  does not extend the gross floor area of the existing building by more than 50%, and

(ii)  does not result in the building having a gross floor area of more than 2,000 square metres, and

(e)  if the development is on a site with an area of—

(i)  2,000 square metres or less—does not result in the floor space ratio for all buildings on the site exceeding 1:1, or

(ii)  more than 2,000 square metres—does not extend the existing gross floor area for all buildings on the site by more than 2,000 square metres.

(3)  Nothing in this section authorises the carrying out of development in contravention of any existing condition of the development consent currently operating (other than a complying development certificate) that applies to any part of the TAFE establishment, relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management, landscaping or student or staff numbers.

(4)  A reference in this section to development for a purpose referred to in subsection (1)(a), (b) or (c) includes a reference to development for the purpose of construction works in connection with the purpose referred to in subsection (1)(a), (b) or (c).

(5)  This section does not apply to development for the purposes of campus student accommodation.

(6)  In this section—

site means one or more lots that are contiguous and owned by the same entity.

3.55 Notification of carrying out of certain development without consent

(1)  This section applies to development to which section 3.54(1)(a) applies.

(2)  Before development to which this section applies is carried out, the proponent of the development must—

(a)  give written notice of the intention to carry out the development to the council for the area in which the land is located (unless the proponent is that council) and to the occupiers of adjoining land, and

(b)  take into consideration any response to the notice that is received within 21 days after the notice is given.

3.56 Existing TAFE establishments—exempt development

(1)  Development for any of the following purposes is exempt development if it is on land within the boundaries of an existing TAFE establishment and complies with any requirements in this subsection that apply to the development—

(a)  an awning or canopy attached to a building, that is not within 1 metre of any property boundary,

(b)  the removal or pruning of a tree that has been assessed by a Level 5 qualified arborist as posing a risk to human health or safety or of damage to infrastructure, but only if a replacement tree that is capable of achieving a mature height of 3 metres or more is planted within the grounds of the TAFE establishment,

(c)  landscaping, including irrigation schemes (whether using recycled or other water),

(d)  play equipment where adequate safety provisions (including soft landing surfaces) are provided, but only if any structure is more than 1.2 metres from any fence,

(e)  routine maintenance (including earthworks associated with playing field regrading or landscaping, and maintenance of existing access roads),

(f)  cycleways, walking paths (including raised walking paths), boardwalks, ramps, minor pedestrian bridges, stairways, gates, seats, barbecues, shelters and shade structures,

(g)  a recreation facility (outdoor), including a playing field (but not including a grandstand or other viewing structure),

(h)  the use of existing facilities or buildings for the purposes of providing a respite day care centre,

(i)  an amenities building that is not more than 1 storey high and is more than 5 metres from any property boundary,

(i)  that is not more than 1 storey high, and

(ii)  that is more than 5 metres from any property boundary with land in a residential zone and more than 1 metre from any property boundary with land in any other zone,

(j)  environmental management works,

(k)  a portable or temporary teaching facility, office amenities, storage facility, maintenance facility, office or kiosk (including its removal)—

(i)  that is not more than 1 storey high, and

(ii)  that is more than 5 metres from any property boundary with land in a residential zone and more than 1 metre from any property boundary with land in any other zone,

Note—

See Schedule 5 for the development standards for a portable office.

(l)  demolition of development that would be exempt development under this or any other environmental planning instrument if it were being constructed or installed, if it is not carried out on or in a heritage item or in a heritage conservation area.

Note—

Exempt development must also comply with the general requirements in section 3.16.

(2)  Section 3.16(3)(g), to the extent that it relates to a permit or approval required under an environmental planning instrument, does not apply in relation to development carried out under subsection (1)(b).

(3)  Development for a purpose specified in Schedule 5 that is carried out by a person other than a public authority is exempt development if—

(a)  it is carried out on land within the boundaries of an existing TAFE establishment, and

(b)  it meets the development standards for the development specified in Schedule 5.

Note 1—

Exempt development must also comply with the general requirements in section 3.16.

Note 2—

Section 3.17 covers development carried out by or on behalf of a public authority.

(4)  This section applies to development for the purposes of existing campus student accommodation on land within the boundaries of the existing TAFE establishment with which the accommodation is associated only.

3.57 Existing TAFE establishments—complying development

(1)  Development carried out by or on behalf of any person on land within the boundaries of an existing TAFE establishment is complying development if—

(a)  it consists of the construction of, or alterations or additions to, any of the following—

(i)  a library or an administration building or office premises for the purposes of the TAFE establishment,

(ii)  a recreation facility (indoor) or recreation facility (outdoor),

(iii)  a teaching facility (including a classroom or lecture theatre), laboratory, trade facility or training facility,

(iv)  food and drink premises (other than pubs or bars) to provide for students or staff (or both) that is carried out in accordance with AS 4674—2004, Design, construction and fit-out of food premises, published by Standards Australia on 11 February 2004,

(v)  one or more shops for students or staff (or both),

(vi)  a hall, including a hall with an associated covered outdoor learning area or kiosk,

(vii)  an environmental facility, including a greenhouse or glass house,

(viii)  an information and education facility,

(ix)  a community facility,

(x)  a storage or maintenance facility,

(xi)  an outdoor learning or play area and associated awnings or canopies,

(xii)  an amenities building,

(xiii)  demolition of a building (unless a State heritage item or local heritage item),

(xiv)  minor alterations or additions (such as internal fitouts, structural upgrades, alterations or additions to enable plant or equipment to be installed, or alterations or additions to address work health and safety requirements or to provide access for people with a disability),

(xv)  restoration, replacement or repair of a damaged building or structure, and

(b)  it complies with this section.

(2)  Development carried out by or on behalf of any person on land within the boundaries of an existing TAFE establishment is complying development if—

(a)  it is an alteration or addition referred to in subsection (1) that is carried out for the purpose of a change of use to another use specified in subsection (1), and

(b)  it complies with this section.

(3)  Development carried out by or on behalf of any person on land within the boundaries of an existing TAFE establishment for the purposes of campus student accommodation is complying development if the development—

(a)  involves only—

(i)  a minor alteration or addition to a building that does not result in an increase in the gross floor area or height of the building, or

Example—

Minor alterations and additions include internal fitouts, structural upgrades, or alterations or additions to enable plant or equipment to be installed, to address work health and safety requirements or to provide access for people with a disability.

(ii)  the restoration, replacement or repair of a damaged building that does not result in an increase in the gross floor area or height of the building, and

(b)  complies with this section.

(4)  Except as provided by subsection (3), development for the purposes of campus student accommodation is not complying development under this section.

(5)  The development standards for complying development under this section are set out in Schedule 7.

(6)  Development that will result in the erection of a building over a registered easement is not complying development under this section.

(7)  Nothing in this section authorises the carrying out of development in contravention of any existing condition of the development consent currently operating (other than a complying development certificate) that applies to any part of the TAFE establishment, relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management, landscaping or student or staff numbers.

Note—

Complying development must also comply with the general requirements in section 3.18.

Part 3.7 General development controls

3.58 Traffic-generating development

(1)  This section applies to development for the purpose of an educational establishment—

(a)  that will result in the educational establishment being able to accommodate 50 or more additional students, and

(b)  that involves—

(i)  an enlargement or extension of existing premises, or

(ii)  new premises,

on a site that has direct vehicular or pedestrian access to any road.

(2)  Before determining a development application for development to which this section applies, the consent authority must—

(a)  give written notice of the application to Transport for NSW (TfNSW) within 7 days after the application is made, and

(b)  take into consideration the matters referred to in subsection (3).

(3)  The consent authority must take into consideration—

(a)  any submission that TfNSW provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, TfNSW advises that it will not be making a submission), and

(b)  the accessibility of the site concerned, including—

(i)  the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and

(ii)  the potential to minimise the need for travel by car, and

(c)  any potential traffic safety, road congestion or parking implications of the development.

(4)  The consent authority must give TfNSW a copy of the determination of the application within 7 days after the determination is made.

Chapter 4 Major infrastructure corridors

4.1 Aims of Chapter

The aims of this Chapter are as follows—

(a)  to identify land that is intended to be used in the future as an infrastructure corridor,

(b)  to establish appropriate planning controls for the land for the following purposes—

(i)  to allow the ongoing use and development of the land until it is needed for the future infrastructure corridor,

(ii)  to protect the land from development that would adversely impact on or prevent the land from being used as an infrastructure corridor in the future.

4.2 Definitions

(1)  A word or expression used in this Chapter has the same meaning as it has in the Standard Instrument unless it is otherwise defined in this Chapter.

(2)  In this Chapter—

capital investment value has the same meaning as in State Environmental Planning Policy (State and Regional Development) 2011.

future infrastructure corridor means land shown as within Zone SP2 Infrastructure on the Future Infrastructure Corridor Map.

Future Infrastructure Corridor Map means the State Environmental Planning Policy (Major Infrastructure Corridors) 2020—Future Infrastructure Corridor Map.

Standard Instrument means the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006.

the Act means the Environmental Planning and Assessment Act 1979.

Note—

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Chapter.

(3)  Notes included in this Chapter do not form part of this Chapter.

4.3 Land to which Chapter applies

This Chapter applies to all land within a future infrastructure corridor and the adjacent land referred to in section 4.9(1)(b)–(d).

4.4 Relationship with other environmental planning instruments

(1)  Subject to subsection (2), in the event of an inconsistency between this Chapter and another environmental planning instrument, whether made before or after the commencement of this Chapter, this Chapter prevails to the extent of the inconsistency.

(2)  This Chapter does not restrict or prohibit the carrying out of development, by or on behalf of a public authority, that is permitted to be carried out with or without development consent, or that is exempt development, under State Environmental Planning Policy (Infrastructure) 2007.

4.5 Maps

(1)  A reference in this Chapter to a named map adopted by this Chapter is a reference to a map by that name—

(a)  approved by the Minister when the map is adopted, and

(b)  as amended or replaced from time to time by maps declared by environmental planning instruments to amend or replace that map, and approved by the person making the instrument when the instruments are made.

(2)  Any 2 or more named maps may be combined into a single map. In that case, a reference in this Chapter to any such named map is a reference to the relevant part or aspect of the single map.

(3)  Any such maps are to be kept and made available for public access in accordance with arrangements approved by the Minister.

(4)  For the purposes of this Chapter, a map may be in, and may be kept and made available in, electronic or paper form, or both.

4.6 Zone SP2 Infrastructure

(1) Objectives of zone The objectives of Zone SP2 Infrastructure are as follows—

(a)  to provide for infrastructure and related uses,

(b)  to prevent development that is not compatible with or that may detract from the provision of infrastructure.

(2) Permitted without consent Development for any of the following purposes is permitted without development consent on land within Zone SP2 Infrastructure—

Nil

(3) Permitted with consent Development for any of the following purposes is permitted only with development consent on land within Zone SP2 Infrastructure—

The purpose shown on the Future Infrastructure Corridor Map, including any development that is ordinarily incidental or ancillary to development for that purpose; Roads

(4) Prohibited Development for any of the following purposes is prohibited on land within Zone SP2 Infrastructure—

Any development not specified in subsection (2) or (3)

(5) Miscellaneous For the purposes of this section—

(a)  land is within Zone SP2 Infrastructure if the land is shown on the Future Infrastructure Corridor Map as being within that zone, and

(b)  the consent authority must have regard to the objectives for development in that zone when determining a development application in respect of land within the zone, and

(c)  a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and

(d)  a reference to a type of building or other thing does not include (despite any definition in this Chapter or the Standard Instrument) a reference to a type of building or other thing referred to separately in the section.

(6) National parks and other reserved land Despite subsections (2)–(4), if land within Zone SP2 Infrastructure is land reserved under the National Parks and Wildlife Act 1974—

(a)  development for uses authorised under that Act is permitted without consent, and

(b)  no development is permitted with consent, and

(c)  any development not specified in paragraphs (a) or (b) is prohibited.

(7)  This section is subject to the other provisions of this Chapter.

4.7 Development in future infrastructure corridor for previously permitted uses of land

(1)  Despite section 4.6, development may be carried out with development consent on land within a future infrastructure corridor, but only if—

(a)  the development is of a kind that could be carried out on the land under an applicable environmental planning instrument immediately before the land was included within a future infrastructure corridor, and

(b)  where the proposed development has a capital investment value of more than $200,000—Transport for NSW grants concurrence to the proposed development, and

(c)  the development is consistent with the aims of this Chapter.

(2)  Before determining a development application (or an application for modification of a consent) for development to which subsection (1)(b) applies, the consent authority must—

(a)  within 7 days after the application is made, give written notice of the application to Transport for NSW, and

(b)  take into consideration—

(i)  any response to the notice that is received within 21 days after the notice is given, and

(ii)  any guidelines issued by the Planning Secretary for the purposes of this section and published in the Gazette.

(3)  In deciding whether to grant concurrence to proposed development under this section, Transport for NSW must take the following matters into consideration—

(a)  the need to carry out the proposed development on the land,

(b)  the timing of carrying out the proposed development and the proposed timing for constructing infrastructure in the future infrastructure corridor,

(c)  the likely additional cost of constructing infrastructure in the future infrastructure corridor resulting from the carrying out of the proposed development.

(4)  Despite subsection (1)(b), the consent authority may grant consent to development to which that subsection applies without the concurrence of Transport for NSW if 21 days have passed since the consent authority gave notice under subsection (2)(a) and Transport for NSW has not granted or refused to grant concurrence.

4.8 Subdivision of land prohibited

(1)  The subdivision of land within a future infrastructure corridor is prohibited.

(2)  Despite subsection (1), a subdivision for the purpose of a realignment of boundaries that does not create or include any additional lot (or part lot) within a future infrastructure corridor is permitted with development consent.

4.9 Excavation in, above, below or adjacent to future infrastructure corridors

(1)  This section applies to development that involves the penetration of ground to a depth of at least 2 metres below ground level (existing) on land—

(a)  within, below or above a future infrastructure corridor, or

(b)  within 25 metres (measured horizontally) of a future infrastructure corridor, or

(c)  within 25 metres (measured horizontally) of the ground directly below a future infrastructure corridor, or

(d)  within 25 metres (measured horizontally) of the ground directly above an underground future infrastructure corridor.

(2)  Before determining a development application (or an application for modification of a consent) for development to which this section applies, the consent authority must—

(a)  within 7 days after the application is made, give written notice of the application to Transport for NSW, and

(b)  take into consideration—

(i)  any response to the notice that is received within 21 days after the notice is given, and

(ii)  any guidelines issued by the Planning Secretary for the purposes of this section and published in the Gazette.

(3)  The consent authority must not grant consent to development to which this section applies without the concurrence of Transport for NSW.

(4)  In deciding whether to provide concurrence, Transport for NSW must take into account—

(a)  the potential effects of the development (whether alone or cumulatively with other development or proposed development) on—

(i)  the safety or structural integrity of existing or proposed infrastructure in the future infrastructure corridor, and

(ii)  the safe and effective operation of existing or proposed future infrastructure in the future infrastructure corridor, and

(b)  what measures are proposed, or could reasonably be taken, to avoid or minimise those potential effects.

(5)  Despite subsection (3), the consent authority may grant consent to development to which this section applies without the concurrence of Transport for NSW if 21 days have passed since the consent authority gave notice under subsection (2)(a) and Transport for NSW has not granted or refused to grant concurrence.

4.10 Acquisition of land zoned under this Chapter

The authority of the State that will be the relevant authority to acquire any land within a future infrastructure corridor, if the land is required to be acquired under Division 3 of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991, is Transport for NSW.

Chapter 5 Three ports—Port Botany, Port Kembla and Port of Newcastle

ch 5, hdg: Am 2022 (373), Sch 1[1].

Part 5.1 Preliminary

5.1 Aims of Chapter

The aims of this Chapter are as follows—

(a)  to provide a consistent planning regime for the development and delivery of infrastructure on land in Port Botany, Port Kembla and the Port of Newcastle,

(b)  to allow the efficient development, re-development and protection of land at Port Botany, Port Kembla and the Port of Newcastle for port purposes,

(c)  to identify certain development within the Lease Area as exempt development or complying development,

(d)  to specify matters to be considered in determining whether to grant consent to development adjacent to development for port purposes,

(e)  to provide for development at Port Botany that does not, by its nature or scale, constitute an actual or potential obstruction or hazard to aircraft,

(f)  to identify certain development as State significant development or State significant infrastructure,

(g)  to ensure that land around the Lease Area is maintained for port-related and industrial uses, including heavy industry on land around Port Kembla.

5.2 Definitions

(1)  In this Chapter—

Additional Permitted Uses Map means the State Environmental Planning Policy (Transport and Infrastructure) 2021 Three Ports Additional Permitted Uses Map.

approved project means a transitional Part 3A project within the meaning of Schedule 6A to the Act that is an approved project.

Australian Dangerous Goods Code means the Australian Code for the Transport of Dangerous Goods by Road and Rail, 7th edition, approved by the Australian Transport Council.

capital dredging means dredging that is carried out for the purpose of—

(a)  constructing a new navigational channel, or

(b)  re-opening a discontinued navigational channel, or

(c)  deepening, widening or extending an existing navigational channel (other than for maintenance purposes),

for berthing or navigation purposes.

capital investment value of a development includes all costs necessary to establish and operate the development, including the design and construction of buildings, structures, associated infrastructure and fixed or mobile plant and equipment, other than the following costs—

(a)  amounts payable, or the cost of land dedicated or any other benefit provided, under a condition imposed under Division 7.1 or 7.2 of the Act or a planning agreement under Division 6 of that Part,

(b)  costs relating to any part of the development that is the subject of a separate development consent or is an approved project,

(c)  land costs (including any costs of marketing and selling land),

(d)  GST (within the meaning of A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth).

Channel User Licence Agreement means an agreement between Transport for NSW and the Port Operator under which the Port Operator is authorised to use certain channels and berthing boxes.

combustible liquid has the same meaning as in the Work Health and Safety Regulation 2017.

Council means—

(a)  in relation to land within the City of Botany Bay area—the Council of the City of Botany Bay, or

(b)  in relation to land within the Randwick City area—Randwick City Council, or

(c)  in relation to land within the Wollongong City area—Wollongong City Council, or

(d)  in relation to land within the Newcastle City area—Newcastle City Council.

dangerous goods has the same meaning as it has in the Dangerous Goods (Road and Rail Transport) Act 2008.

demolition includes the dismantling or removal of a building.

dispensing facility means a fuel transfer facility that is intended for the dispensing of liquids from a storage tank to the fuel tank of a vehicle or vessel.

dredging means the removal of material from the sea or harbour bed or the bed of a river.

environmental management works means—

(a)  works for the purpose of avoiding, reducing, minimising or managing the environmental effects of development (including effects on water, soil, air, biodiversity, traffic or amenity), and

(b)  environmental protection works.

freight means any item, goods or produce being transported and includes containers (whether empty or otherwise), gases, livestock, liquids, minerals, plant and equipment, raw materials, vehicles and vessels.

Height of Buildings Map means the State Environmental Planning Policy (Transport and Infrastructure) 2021 Three Ports Height of Buildings Map.

heritage item—see section 5.31(8).

Heritage Map means the State Environmental Planning Policy (Transport and Infrastructure) 2021 Three Ports Heritage Map.

Land Application Map means the State Environmental Planning Policy (Transport and Infrastructure) 2021 Three Ports Land Application Map.

Land Zoning Map means the State Environmental Planning Policy (Transport and Infrastructure) 2021 Three Ports Land Zoning Map.

Lease Area means the area shown edged in red and identified as “Port Botany Lease Area” or “Port Kembla Lease Area” or Port of Newcastle Lease Area on the Lease Area Map.

Lease Area Map means the State Environmental Planning Policy (Transport and Infrastructure) 2021 Three Ports Lease Area Map.

local heritage item means a heritage item within the meaning of section 5.31 that is not a State heritage item.

maintenance dredging means dredging and bed levelling for the purpose of maintaining an existing navigational channel at the depth and width specified for the purpose of maintenance dredging in the Channel User Licence Agreement or any Crown lease that authorises the use of that channel.

major hazard facility has the same meaning as in the Work Health and Safety Regulation 2017.

Mayfield Bulk Liquid Storage Tanks Area means the area shown edged heavy black on the Mayfield Bulk Liquid Storage Tanks Map.

Mayfield Bulk Liquid Storage Tanks Map means the State Environmental Planning Policy (Transport and Infrastructure) 2021 Three Ports Mayfield Bulk Liquid Storage Tanks Map.

navigation and emergency response facilities means facilities for—

(a)  water traffic control, safe navigation and other safety purposes (such as beacons, navigation towers, radar towers, communication facilities, vessel monitoring facilities, lighthouses, buoys, marine markers, pilot stations, jetties, breakwaters or training walls), and

(b)  emergency response, including rescue stations and emergency communication facilities and jetties.

navigational channel includes an access channel, swing basin, berthing box or other navigable area.

Newcastle LUSS means the Port of Newcastle Land Use Safety Study Final Report, dated 10 October 2017.

Outer Harbour Map means the State Environmental Planning Policy (Transport and Infrastructure) 2021 Three Ports Outer Harbour Map.

Port Botany LUSS means the Port Botany Land Use Safety Study Overview Report, published by Planning NSW in 1996.

Port Corporation means a Port Corporation established under the Ports and Maritime Administration Act 1995.

port facilities means facilities on land in the Lease Area used in connection with the carrying of freight and persons by water from one port to another for business or commercial purposes, and includes any of the following—

(a)  facilities for the embarkation or disembarkation of passengers onto or from any vessels, including public ferry wharves,

(b)  facilities for the loading or unloading of freight onto or from vessels and freight receival, processing, land transport and storage facilities,

(c)  wharves for commercial fishing operations,

(d)  refuelling, launching, berthing, mooring, storage or maintenance facilities for any vessel,

(e)  sea walls or training walls,

(f)  administration and port operations buildings and facilities,

(g)  communication, security and safety facilities,

(h)  utilities and services, road and rail infrastructure, pipelines and car parks.

Port Operator means—

(a)  in relation to Botany Bay—the port operator (within the meaning of the Ports and Maritime Administration Act 1995) of the port of Botany Bay, and

(b)  in relation to Port Kembla—the port operator (within the meaning of that Act) of the port of Port Kembla, and

(c)  in relation to the Port of Newcastle—the port operator (within the meaning of that Act) of the Port of Newcastle.

public authority includes the Port Operator.

reclamation work means any work (other than work undertaken in connection with maintenance dredging) that involves—

(a)  using any material (such as sand, soil, silt, gravel, concrete, oyster shells, tyres, timber or rocks) to fill in or reclaim land submerged by water (whether permanently or intermittently), or

(b)  depositing any such material on land submerged by water (whether permanently or intermittently) for the purpose of constructing anything over that land (such as a bridge but not a seawall, groyne or jetty), or

(c)  draining water from land submerged by water (whether permanently or intermittently) for the purpose of its reclamation.

Referral Area Map means the State Environmental Planning Policy (Transport and Infrastructure) 2021 Three Ports Referral Area Map.

State heritage item means an item of State heritage significance, within the meaning of the Heritage Act 1977, that is the subject of an interim heritage order in force under that Act or listed on the State Heritage Register under that Act.

the Act means the Environmental Planning and Assessment Act 1979.

virgin excavated natural material has the same meaning as in the Protection of the Environment Operations Act 1997, Schedule 1, clause 50(1).

Note—

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Chapter.

(2)  In this Chapter, a reference to development for the purpose of port facilities, navigation and emergency response facilities or wharf or boating facilities includes a reference to the operation of such a facility and any of the following if carried out in connection with such a facility—

(a)  construction works,

(b)  routine maintenance works,