An Act to repeal certain Acts and amend certain other Acts, consequent on the enactment of the Environmental Planning and Assessment Act 1979, and the Land and Environment Court Act 1979, and to enact savings, transitional and other provisions consequent on and in connection with the enactment of those Acts.
1 Name of Act
This Act may be cited as the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979.
2 Commencement
(1) This section and section 1 shall commence on the date of assent to this Act.(2) Section 5, in its application to a provision of Schedule 2, shall commence on the day on which that provision commences.(3) Part 2 of Schedule 2 shall commence on:(a) the day referred to in section 2 (2) of the Supreme Court (Summary Jurisdiction) Bail (Amendment) Act 1978, orwhichever is the later, or, if those days are the same, shall commence on that day.(b) the day appointed and notified under section 2 (2) of the Environmental Planning and Assessment Act 1979,(4) Except as provided in this section, this Act shall commence on the day appointed and notified under section 2 (2) of the Environmental Planning and Assessment Act 1979.
3 Schedules
This Act contains the following Schedules:SCHEDULE 1—REPEALSSCHEDULE 2—AMENDMENTSSCHEDULE 3—SAVINGS, TRANSITIONAL AND OTHER PROVISIONS
4, 5 (Repealed)
s 4: Rep 2010 No 119, Sch 4.
s 5: Rep 2010 No 119, Sch 4.
6 Savings, transitional and other provisions
Schedule 3 has effect.
Schedules 1, 2 (Repealed)
sch 1: Am 1980 No 103, Sch 7. Rep 2010 No 119, Sch 4.
sch 2: Am 1980 No 74, Sch 8; 1982 No 148, Sch 1; 1983 No 174, Sch 1; 1984 No 153, Sch 16; 1986 No 85, Sch 1; 1986 No 218, sec 4 (2) (d); 1987 No 63, Sch 1; 1987 No 143, Sch 1. Rep 2010 No 119, Sch 4.
Schedule 3 Savings, transitional and other provisions
(Section 6)
1 Interpretation
(1) In this Schedule, except in so far as the context or subject-matter otherwise indicates or requires:appointed day means the day appointed and notified under section 2 (2) of the Environmental Planning and Assessment Act 1979.Authority means the State Planning Authority of New South Wales as constituted under the State Planning Authority Act 1963.Commission means the New South Wales Planning and Environment Commission as constituted under the New South Wales Planning and Environment Commission Act 1974.former planning instrument means a prescribed scheme or an interim development order or The Town and Country Planning (General Interim Development) Ordinance.former tribunal means the Land and Valuation Court, the Local Government Appeals Tribunal, a Valuation Board of Review or the Clean Waters Appeals Board.interim development order means an interim development order within the meaning of Part 12A.new Court means the Land and Environment Court.Part 12A means Part 12A of the Local Government Act 1919 as in force at any time.prescribed scheme means a prescribed scheme within the meaning of Part 12A.regulations means regulations under clause 38.(2) Except in so far as the context or subject-matter otherwise indicates or requires, expressions used in this Schedule have the same meanings as in the Environmental Planning and Assessment Act 1979.(3) In this Schedule, a reference to a subclause is, unless a contrary intention appears, a reference to a subclause of the clause in which the reference occurs.
2 Former planning instruments
(1) A former planning instrument, as in force immediately before the appointed day, shall, subject to this Act have full force and effect according to its tenor and shall be deemed to be a deemed environmental planning instrument.(2) Where, in the opinion of the Minister administering the Environmental Planning and Assessment Act 1979, a provision of a former planning instrument is inconsistent with or contains a provision that deals with the same or like matter which is dealt with by any provision of the Environmental Planning and Assessment Act 1979, or the regulations thereunder, the Minister administering the Environmental Planning and Assessment Act 1979 may, by order published in the Gazette, amend the former planning instrument in such a manner as, in his opinion, will remove the inconsistency or the provision dealing with the same or like matter, as the case may be, but no such order shall take effect before the appointed day.
3 Schemes in preparation
(1) Where, immediately before the appointed day, a scheme under Part 12A has reached a stage of preparation which, in the opinion of the Minister administering the Environmental Planning and Assessment Act 1979, warrants completion in accordance with this clause, the Minister administering the Environmental Planning and Assessment Act 1979 may, by order published in the Gazette, direct that further preparation of that scheme be continued in accordance with such of the provisions of Part 3 of the Environmental Planning and Assessment Act 1979, as are specified in that order as if that scheme were a draft environmental planning instrument.(2) A scheme prepared in accordance with directions given pursuant to subclause (1) shall, if made by the Minister administering the Environmental Planning and Assessment Act 1979, be deemed to be an environmental planning instrument notwithstanding any failure to comply with the provisions of Part 3 of the Environmental Planning and Assessment Act 1979, with respect to the making of such an instrument.(3) A scheme, the subject of an order made under subclause (1), which has received a certificate under section 342F (2) or 342GB (2) of the Local Government Act 1919, shall be deemed to be a draft environmental planning instrument within the meaning of section 90 (1) (a) (ii) of the Environmental Planning and Assessment Act 1979.(4) In subclauses (1) and (2), a reference to a scheme includes a reference to:(a) an interim development order, and(b) an instrument prepared or in the course of preparation by the Commission or by a regional planning committee constituted under Part 4 of the State Planning Authority Act 1963, and declared by the Minister administering the Environmental Planning and Assessment Act 1979 to be an instrument to which this clause applies.
4 Model provisions
The provisions of any standard or model provisions, adopted wholly or partially by reference by a former planning instrument, in accordance with section 342U (3) of the Local Government Act 1919 shall be deemed, for the purposes of that instrument, to be a set of model provisions made under section 33 of the Environmental Planning and Assessment Act 1979 and may be amended or revoked accordingly.
5 Applications
(1) Where, immediately before the appointed day, an application for consent, approval or permission under a former planning instrument has not been finally determined, the application shall, subject to this clause, be determined as if this Act and the Environmental Planning and Assessment Act 1979 had not been enacted.(2) For the purposes of subclause (1), an application is not finally determined unless:(a) consent, approval or permission is granted or refused in respect of that application and no appeal is lodged within a period of 12 months from the date of granting or refusing the application, or(b) where an appeal is lodged within the period of 12 months referred to in paragraph (a)—that appeal is finally disposed of.(3) An appeal that would, but for this subclause, be made on or after the appointed day to a former tribunal in relation to any matter referred to in this clause shall be made to the new Court, and shall, for the purposes of the Land and Environment Court Act 1979, be treated as an appeal under section 97 of the Environmental Planning and Assessment Act 1979.
6 Development prohibited except with consent
A provision of a former planning instrument to the effect that development may not be carried out except with a specified consent, approval or permission shall be deemed to be a provision to the effect that that development may not be carried out except with consent under the Environmental Planning and Assessment Act 1979 being obtained therefor.
7 Consents, approvals and permissions
(1) Any consent, approval or permission granted in respect of an application made under a former planning instrument, and in force immediately before the appointed day, shall, subject to subclause (2), continue in full force and effect subject to:(a) the operation of any provision of that instrument or any term or condition of that consent, approval or permission governing or relating to the currency, duration or continuing legal effect of that consent, approval or permission, and(b) the operation of any condition (other than that referred to in paragraph (a)), restriction or limitation, subject to which that consent, approval or permission was granted.(2) Where no provision or term or condition of the type referred to in subclause (1) (a) operates in respect of a consent, approval or permission therein mentioned, the provisions of section 99 of the Environmental Planning and Assessment Act 1979 shall apply to that consent, approval or permission as if it were a consent referred to in that section which had taken effect on the appointed day.(3) The provisions of section 103 of the Environmental Planning and Assessment Act 1979 shall apply to a consent referred to in subclause (1) as if that consent were a consent referred to in that section.(4) A consent, approval or permission referred to in subclause (1) is taken to be a development consent within the meaning of the Environmental Planning and Assessment Act 1979.
8 Directions under s 342V (3) of Local Government Act 1919
A direction given under section 342V (3) of the Local Government Act 1919, and in force immediately before the appointed day shall be deemed to be a direction given in the same terms under section 101 of the Environmental Planning and Assessment Act 1979.
9 Proclamations under s 313 (j) of Local Government Act 1919
A proclamation under section 313 (j) of the Local Government Act 1919 and in force immediately before the appointed day shall be deemed to have been made under section 313 (2) (b) of that Act, as amended by this Act.
10, 11 (Repealed)
12 Resumptions and appropriations
(1) Land reserved or zoned for a public purpose by a deemed environmental planning instrument shall be deemed for the purposes of section 116 of the Environmental Planning and Assessment Act 1979 to be land reserved for that purpose pursuant to section 26 (c) of that Act.(2) Upon the resumption or appropriation of land referred to in subclause (1):(a) any compensation recovered under section 342AC of the Local Government Act 1919 in respect of the reservation or zoning shall be deducted from the compensation otherwise payable by virtue of the resumption or appropriation, and(b) no compensation under that section is payable in respect of a claim referred to in clause 13.
13 Compensation
Where a claim for compensation under section 342AC of the Local Government Act 1919 was made before the appointed day, but proceedings to enforce that claim have not been instituted or completed as at that day, that claim may, subject to clause 12, be enforced as if this Act and the Environmental Planning and Assessment Act 1979 had not been enacted.
14 Construction of references to Part 12A, schemes, etc
(1) On and from the appointed day, a reference in any other Act or in any regulation, by-law or other statutory instrument, or in any other document, whether of the same or of a different kind:(a) to Part 12A shall be read and construed as a reference to the Environmental Planning and Assessment Act 1979,(b) to any provision of that Part shall be read and construed as a reference to the corresponding provision, if any, of the Environmental Planning and Assessment Act 1979,(c) to a specified prescribed scheme or an interim development order made under that Part shall be read and construed as a reference to the deemed environmental planning instrument that that prescribed scheme or interim development order is deemed by this Schedule to be,(d) to a prescribed scheme or an interim development order made under that Part, that is not identified by the reference, shall be read and construed as a reference to an environmental planning instrument,(e) except as provided in paragraph (d), to a planning scheme prepared under that Part shall be read and construed as a reference to a draft local environmental plan in respect of which a certificate has been issued under section 65 of the Environmental Planning and Assessment Act 1979, andsubject to the regulations and except in so far as the context or subject-matter otherwise indicates or requires.(f) to prescribed qualifications with respect to town or country planning shall be read and construed as a reference to qualifications in environmental planning prescribed under the Environmental Planning and Assessment Act 1979,(2) Subclause (1) does not apply to references in section 254A of the Crown Lands Consolidation Act 1913, the Land Development Contribution Management Act 1970, or any other prescribed enactments, instruments or documents.
15 Agreements under s 342AN of Local Government Act 1919
Notwithstanding the repeal of Part 12A, any agreement entered into in accordance with section 342AN of the Local Government Act 1919 continues in force as if that Part had not been repealed, but any such agreement may be amended, varied or cancelled.
16 Certain full-time commissioners entitled to re-appointment in former employment
(1) In this clause:does not include a commissioner or a member of any prescribed body.prescribed body means a statutory body (other than the Commission) declared under section 4 (2) of the New South Wales Planning and Environment Commission Act 1974 to be a statutory body for the purposes of that Act.retiring age means:(a) in relation to a person who was, immediately before his appointment as a commissioner, an officer of the Public Service—the age of 60 years, and(b) in relation to a person who was, immediately before his appointment as a commissioner, an officer or employee of a prescribed authority—the age at which officers or employees, as the case may be (being officers or employees of the class to which that person belonged immediately before his appointment as a commissioner), of that prescribed authority are entitled to retire.(2) A person holding office at the appointed day under section 6 (2) (a) of the New South Wales Planning and Environment Commission Act 1974 not being a person who has attained the retiring age, is, unless appointed as the Director, entitled to be appointed, where, immediately before his appointment as a commissioner, he was:(a) an officer of the Public Service—to some position in the Public Service, ornot lower in classification and salary than that which he held immediately before his appointment as a commissioner.(b) an officer or employee of some prescribed authority—to some office in the service of that prescribed authority,
17 Full-time members of Commission, other than as referred to in clause 16
(1) This clause does not apply to a person entitled to an appointment under clause 16.(2) A person holding office at the appointed day under section 6 (2) (a) of the New South Wales Planning and Environmental Commission Act 1974 is, unless appointed as the Director, entitled:(a) to be appointed by the Governor to a position in the service of the Crown for the balance of his term of office under section 6 of that Act, at a salary (not less than that payable to him immediately before the appointed day) determined by the Governor, and(b) to retain all other rights and privileges conferred upon him by that Act other than the right to appointment under that section.(3) Notwithstanding the repeal by this Act of the New South Wales Planning and Environment Commission Act 1974 the provisions of section 10 (1) of that Act (paragraphs (d), (i), (j) and (k) excepted), apply to a person referred to in subclause (2) of this clause as if the repeal had not been effected, and so apply as if a reference therein to a full-time commissioner were a reference to that person.(4) The provisions of the Public Service Act 1979 do not apply to or in respect of the appointment of a person under this clause and such a person is not, in his capacity as such an appointee, subject to the provisions of that Act.
18 Officers and employees of Commission
(1) The persons who, immediately before the appointed day, were officers and temporary employees of the Commission shall, at that date, become officers and temporary employees of the Department.(2) Notwithstanding the repeal by this Act of the New South Wales Planning and Environment Commission Act 1974 the provisions of section 16 of that Act continue to apply in relation to the persons referred to in subclause (1) as if the repeal had not been effected.
19 Transfer of property, rights, obligations, etc
(1) On and from the appointed day:(a) all real and personal property and all right and interest therein and all management and control thereof that, immediately before that day, was vested in or belonged to the Commission shall vest in and belong to the corporation,(b) all money and liquidated and unliquidated claims that, immediately before that day, were payable to or recoverable by the Commission shall be money and liquidated and unliquidated claims payable to or recoverable by the corporation,(c) all proceedings commenced before that day by the Commission and pending immediately before that day shall be deemed to be proceedings pending on that day by the corporation and all proceedings so commenced by any person against the Commission and pending immediately before that day shall be deemed to be proceedings pending on that day by that person against the corporation,(d) all contracts, agreements, arrangements and undertakings entered into with, and all securities lawfully given to or by, the Commission and in force immediately before that day shall be deemed to be contracts, agreements, arrangements and undertakings entered into with and securities given to or by the corporation,(e) the corporation may, in addition to pursuing any other remedies or exercising any other powers that may be available to it, pursue the same remedies for the recovery of money and claims referred to in this clause and for the prosecution of actions and proceedings so referred to as the Commission might have done but for the enactment of this Act,(f) the corporation may enforce and realise any security or charge existing immediately before that day in favour of the Commission and may exercise any powers thereby conferred on the Commission as if the security or charge were a security or charge in favour of the corporation,(g) all debts, money and claims, liquidated and unliquidated, that, immediately before that day, were due or payable by, or recoverable against, the Commission shall be debts due by, money payable by and claims recoverable against, the corporation, and(h) all liquidated and unliquidated claims for which the Commission would, but for the enactment of this Act, have been liable shall be liquidated and unliquidated claims for which the corporation shall be liable.(2) No attornment to the corporation by a lessee from the Commission shall be required.
20 Construction of references to Authority or Commission
(1) On and from the appointed day, a reference in any other Act or in any regulation, by-law or other statutory instrument or in any other document, whether of the same or of a different kind, to the Authority or the Commission or the Chairman or a member thereof shall, subject to the regulations, be read and construed as a reference to the corporation, Director or Department, whichever is appropriate.(2) Subclause (1) does not apply to references in the Environmental Planning and Assessment Act 1979, the Chipping Norton Lake Authority Act 1977 or any other prescribed enactments, instruments or documents.
21 Development funds
(1) All fixed assets and fixed liabilities comprised in the Cumberland Development Fund established under the State Planning Authority Act 1963 and transferred to the corporation in pursuance of this Schedule shall:(a) except as provided in paragraph (b)—form part of the Development Fund for the Sydney Region, or(b) where those assets and liabilities relate to the City of Greater Wollongong—form part of the Development Fund for the Illawarra Region to the extent determined by the Minister administering the Environmental Planning and Assessment Act 1979.(2) All fixed assets and fixed liabilities comprised in the Northumberland Development Fund established under the State Planning Authority Act 1963 and transferred to the corporation in pursuance of this Schedule shall form part of the Development Fund for the Hunter Region.
22 Loans
(1) The due repayment of any money borrowed after 26 May 1972 by the authority or the Commission and of the interest thereon is hereby guaranteed by the Government.(2) Any liability arising from such a guarantee shall be payable out of money provided by Parliament.(3) A reference, in Part 7 of or Schedule 6 to the Environmental Planning and Assessment Act 1979, to a loan or renewal loan raised by the corporation includes a reference to a loan or renewal loan raised by the Authority or the Commission.
23 Development areas
(1) The following areas shall be deemed to have been constituted under section 132 of the Environmental Planning and Assessment Act 1979 as a development area, to be known as the Sydney Region Development Area, namely:Cities of Sydney, Blacktown, Fairfield, Liverpool, Parramatta, Penrith and Campbelltown.Municipalities of Ashfield, Auburn, Bankstown, Botany, Burwood, Camden, Canterbury, Concord, Drummoyne, Holroyd, Hunter’s Hill, Hurstville, Kogarah, Ku-ring-gai, Lane Cove, Leichhardt, Manly, Marrickville, Mosman, North Sydney, Randwick, Rockdale, Ryde, South Sydney, Strathfield, Waverley, Willoughby, Windsor and Woollahra.Shires of Baulkham Hills, Gosford, Hornsby, Sutherland, Warringah and Wyong.(2) The following areas shall be deemed to have been constituted under section 132 of the Environmental Planning and Assessment Act 1979 as a development area, to be known as the Hunter Region Development Area, namely:Cities of Newcastle, Greater Cessnock and Maitland.Municipality of Lake Macquarie.Shire of Port Stephens.(3) The following areas shall be deemed to have been constituted under section 132 of the Environmental Planning and Assessment Act 1979 as a development area, to be known as the Illawarra Region Development Area, namely:Cities of Wollongong and Shoalhaven.Municipalities of Bowral, Kiama and Shellharbour.Shires of Mittagong and Wingecarribee.(4) A development area referred to in this clause may be altered or abolished under section 133 of the Environmental Planning and Assessment Act 1979.(5) Section 135 of the Environmental Planning and Assessment Act 1979 does not apply to a development area as deemed to have been constituted under this clause.
24 Amendments made by repealed Act
The amendments made by section 22 of and the Schedule to the New South Wales Planning and Environment Commission Act 1974, except the amendment of section 342B of the Local Government Act 1919, continue to have force and effect as if the New South Wales Planning and Environment Commission Act 1974 had not been repealed by this Act.
25 Activity under s 519C (7) or Div 3A of Pt 24 of Local Government Act 1919
Any act, matter or thing done or omitted by the Commission under or for the purposes of section 519C (7) or Division 3A of Part 24 of the Local Government Act 1919 shall be deemed to have been done or omitted by the Director under or for the purposes of that subsection or Division as in force after the appointed day.
26 Appointment of Director before appointed day
A person may be appointed before the appointed day as Director, but his term of office as such shall not commence before the appointed day.
27 Unexpended funds appropriated in connection with the Commission
The sums authorised by the Appropriation Act 1979 to be appropriated out of the Consolidated Revenue Fund and to be issued and applied for or towards expenditure under the heading “Minister for Planning and Environment” in connection with the Commission shall be deemed, to the extent that, at the appointed day, they have not been so issued or applied, to be sums authorised by that Act to be appropriated out of that Fund and to be issued and applied for or towards expenditure in connection with the corporation, Director and the Department.
28 Proceedings pending in former tribunals
(1) Any proceedings (other than proceedings referred to in subclause (2)):(a) pending in a former tribunal immediately before the appointed day, orshall be deemed to be proceedings pending in the new Court, and shall be continued in and disposed of by the new Court accordingly.(b) pending in the Supreme Court immediately before that day and that would, but for this Act, be required thereafter to be remitted to the Land and Valuation Court, otherwise than on an appeal from that Court to the Supreme Court,(2) Any proceedings pending in the Supreme Court or the Land and Valuation Court under section 10 of the Growth Centres (Land Acquisition) Act 1974 immediately before the appointed day shall be deemed to be proceedings pending in the new Court, and shall be continued in and disposed of by the new Court accordingly, as if that section had not been amended by this Act, but as if:(a) references in that section to the Supreme Court and the Land and Valuation Court were references to the new Court, and(b) subsection (5) of that section were amended by omitting the words “Upon remission to the Land and Valuation Court of proceedings instituted under subsection (2) in respect of a resumption, that Court” and by inserting instead the words “In proceedings instituted under subsection (2) in respect of a resumption, the Land and Environment Court”.(3) The person who was the registrar or other officer having the custody of any records of a former tribunal or the Supreme Court immediately before the appointed day shall, as soon as practicable after that day, forward to the new Court all documents held by him and relating to any proceedings referred to in subclause (1) or (2).
29 Other pending proceedings
Any proceedings pending in the Supreme Court or the District Court or before any other body or person immediately before the appointed day (being proceedings which, on or after that day, may only be commenced in the new Court, but excluding proceedings referred to in clause 28) shall be continued and disposed of as if this Act, the Environmental Planning and Assessment Act 1979 and the Land and Environment Court Act 1979 had not been enacted.
30 Construction of references to former tribunals
(1) On and from the appointed day, a reference in any other Act, or in any regulation, by-law or other statutory instrument or in any other document, whether of the same or of a different kind, to:(a) a former tribunal, orshall be read and construed as a reference to the new Court.(b) a valuation court constituted under the Valuation of Land Act 1916,(2) On and from the appointed day, a reference in the Local Government Act 1919, or in any instrument under that Act, to the “Tribunal” shall, unless a contrary intention appears, be read and construed as a reference to the new Court.(3) Subclause (1) does not apply to references in section 5 of the Land Development Contribution Management Act 1970 or in any other prescribed enactments, instruments or documents.
31 Construction of references to Private Irrigation Districts and Water (Amendment) Act 1973
On and from the appointed day, a reference in any other Act, or in any regulation, by-law or other statutory instrument, or in any other document, whether of the same or of a different kind, to the “Private Irrigation Districts and Water (Amendment) Act, 1973” shall be read and construed as a reference to the “Private Irrigation Districts Act, 1973”.
Where by or under any Act a right of appeal to the new Court in accordance with the provisions of section 341 of the Local Government Act 1919 is expressly conferred upon any person in respect of any matter arising out of or with respect to the carrying into effect or enforcing of an environmental planning instrument, a reference in any such Act to that section shall be read and construed as a reference to section 97 of the Environmental Planning and Assessment Act 1979.
33 Land Agents
A person whose registration in the Land and Valuation Court pursuant to the Land Agents Act 1927 as a land agent was in force immediately before the appointed day shall be deemed to have been registered as such in the new Court on that day.
34 Schedule 2 to Public Service Act 1979
The amendments by this Act of Schedule 2 to the Public Service Act 1979 do not affect any power under that Act to amend that Schedule.
35 Delegations
A delegation in force under section 69 of the State Planning Authority Act 1963, or section 71 of the Land Development Contribution Management Act 1970, immediately before the appointed day shall be deemed to be a delegation made under section 23 of the Environmental Planning and Assessment Act 1979.
36 Assessments under State Planning Authority Act 1963
An assessment made under section 47 of the State Planning Authority Act 1963 shall be deemed to be an assessment made under section 143 of the Environmental Planning and Assessment Act 1979.
37 Requirements for easements
For the purposes of section 327 of the Local Government Act 1919, as amended by this Act, a requirement made under section 342BG of the Local Government Act 1919 shall be deemed to be a requirement made by the Land and Environment Court under section 40 of the Land and Environment Court Act 1979.
38 Regulations
(1) The Governor may make regulations containing other provisions of a savings or transitional nature consequent on the enactment of this Act, the Environmental Planning and Assessment Act 1979 or the Land and Environment Court Act 1979.(2) A provision made under subclause (1) may take effect as from the appointed day or a later day.(3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or a public authority), the rights of that person existing before the date of its publication therein, or(b) to impose liabilities on any person (other than the State or a public authority) in respect of anything done or omitted to be done before the date of its publication therein.(4) A provision made under subclause (1) shall, if the regulations expressly so provide, have effect notwithstanding the foregoing clauses of this Schedule (clauses 16, 17, 18, 24 and 27 excepted).
sch 3: Am 1985 No 231, Sch 31; 1986 No 132, Sch 1; 1995 No 90, sec 3.