Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43
Repealed version for 24 November 2005 to 19 June 2006 (accessed 9 August 2020 at 00:37)
Schedule 2
Schedule 2 Planning instruments amendments
(Section 3)
[1]   Section 4 Definitions
Insert in alphabetical order in section 4 (1):
  
development control plan means a development control plan prepared (or taken to have been prepared) under Division 6 of Part 3.
[2]   Section 26 Contents of environmental planning instruments
Insert at the end of the section:
  
(4)  An environmental planning instrument that makes provision for or with respect to protecting or preserving trees or other vegetation may make provision:
(a)  for development control plans to specify the species or kinds of trees or other vegetation included in or excluded from the relevant provisions, and
(b)  for the grant of permission to remove or otherwise affect trees or other vegetation, and for a refusal to grant permission to be treated as a refusal or failure to grant development consent under and for the purposes of Part 4.
[3]   Section 33 Model provisions
Omit the section.
[4]   Sections 33A–33C
Insert after section 33:
  
33A   Standardisation of local and other environmental planning instruments
(1)  The Governor may, by order published in the Gazette, prescribe the standard form and content of local environmental plans or other environmental planning instruments (a standard instrument).
(2)  An environmental planning instrument may be made in the form of:
(a)  a declaration that the applicable mandatory provisions of a standard instrument are adopted, and
(b)  the prescription of the matters required to be prescribed for the purposes of the application of the mandatory provisions of the standard instrument (such as the adoption of land zoning or other maps), and
(c)  the prescription of any other matters permitted to be prescribed by an environmental planning instrument, including non-mandatory provisions of the standard instrument (with or without modification) or additional provisions.
(3)  When an environmental planning instrument is made with such a declaration, the instrument has the form and content of the applicable mandatory provisions of the standard instrument and the matters so prescribed. Any draft of the instrument that is exhibited under this Act is to set out in full the provisions that are adopted.
(4)  If the mandatory provisions of a standard instrument so adopted are amended by a further order under subsection (1) after they are adopted, the environmental planning instrument is taken (without further amendment) to adopt the amended provisions of the standard instrument on and from the date the amendment to the standard instrument takes effect.
(5)  The order that amends a standard instrument may make provision of a savings or transitional nature consequent on the amendment of the standard instrument.
(6)  Where a standard instrument has been adopted, the provisions of the environmental planning instrument (other than the mandatory provisions of the adopted standard instrument) may be amended from time to time by another environmental planning instrument or in accordance with any Act.
(7)  A standard instrument may:
(a)  provide that a provision is a mandatory provision only in the circumstances specified in the instrument, and
(b)  contain requirements or guidance as to the form or content of a non-mandatory provision.
(8)  The adoption of the provisions of a standard instrument in an environmental planning instrument is taken to be a matter of State environmental planning significance for the purposes of this Act.
(9)  Subject to this Act and the regulations, the form and subject-matter of an environmental planning instrument or draft instrument is (if there is no applicable standard instrument) to be as determined by the Minister.
(10)  In this section:
amend includes alter or vary.
form includes structure.
33B   Staged repeal and review of environmental planning instruments
(1)  In order to facilitate the staged implementation of standard instruments and the periodic review of existing instruments, the Minister may, by order published in the Gazette, establish a staged repeal program for existing environmental planning instruments.
(2)  The staged repeal program may include provision for or with respect to the following:
(a)  the repeal of designated environmental planning instruments at specified times during the period of the program,
(b)  requirements for the preparation and making of replacement instruments (including the times by which draft replacement instruments are to be submitted to the Director-General or the Minister),
(c)  the postponement of the repeal of particular instruments when the making of a replacement instrument is delayed,
(d)  the periodic review by a council of environmental planning instruments (other than State environmental planning policies and regional environmental plans) applying in its area and the submission of reports of each review to the Director-General.
(3)  At the time specified by the staged repeal program for the repeal of a designated environmental planning instrument, the instrument is repealed by the operation of this section.
(4)  The Minister may, by order published in the Gazette, make a local environmental plan to take effect on the repeal of an instrument under this section pending the making of a replacement instrument in accordance with this Act. Any such plan made by the Minister is to adopt the mandatory provisions of a standard instrument (with the prescriptions the Minister considers necessary in the particular circumstances).
(5)  For the purposes of subsection (4):
(a)  an order making a plan under that subsection is not required to comply with other requirements for the making of an environmental planning instrument, and
(b)  public notice is to be given of the proposed plan for such period as the Minister considers appropriate and submissions invited on the proposed plan during that period, and
(c)  the council is to provide the Minister, when requested, with copies of any draft plans, maps or other relevant documents prepared or held by the council.
The Minister may direct the council to pay to the Director-General such amount as the Director-General determines will meet the reasonable costs incurred on behalf of the Minister by the Department for the purposes of making the plan under subsection (4).
Note.
 See section 118 (1A) in relation to the power to appoint an administrator to exercise plan-making functions when a council fails to comply with the requirements of the staged repeal program for the preparation or making of a replacement instrument.
33C   Public access to environmental planning instruments and related documents
For the purpose of facilitating electronic or other public access to environmental planning instruments and any development control plans, contributions plans or other documents under this Act:
(a)  the Minister may determine standard technical requirements with respect to the preparation of those instruments, plans or other documents and of the maps or other documents that are referred to in (or adopted under) them, and
(b)  a council is to provide the Director-General, when requested, with copies and electronic files (in a specified format) of any such instruments, plans, maps or other documents prepared or held by the council.
[5]   Section 36 Inconsistency between instruments
Omit section 36 (1), (2) and (3). Insert instead:
  
(1)  In the event of an inconsistency between environmental planning instruments and unless otherwise provided:
(a)  there is a general presumption that a State environmental planning policy prevails over a regional environmental plan or local environmental plan made before or after the policy, and
(b)  there is a general presumption that a regional environmental plan prevails over a local environmental plan made before or after the regional environmental plan, and
(c)  the general presumptions of the law as to when an Act prevails over another Act apply to when one kind of environmental planning instrument prevails over another environmental planning instrument of the same kind.
[6]   Section 38 Format of State environmental planning policies
Omit the section.
[7]   Section 51A Development control plans
Omit the section.
[8]   Section 52 Format of regional environmental plan or draft plan
Omit the section.
[9]   Section 65 Certificate of Director-General
Insert after section 65 (1):
  
(1A)  A certificate is not to be issued under this section unless the Director-General is satisfied that the draft local environmental plan has been prepared in accordance with any applicable standard instrument under section 33A. This subsection does not limit the grounds on which a certificate may be refused or the draft plan may be required to be amended under this section.
Note.
 Section 117 also empowers the Minister to give directions as to the principles to be observed in the preparation of, or the provisions to be included in, draft local environmental plans.
[10]   Section 66 Public exhibition of draft local environmental plan
Omit section 66 (1) (b) (ii) and (iii). Insert instead:
  
(ii)  a copy of any standard instrument, environmental planning instrument or direction under section 117 that substantially governs the content and operation of the draft local environmental plan (or provide for access to such a copy), and
(iii)  a statement to the effect that any such standard instrument, environmental planning instrument or direction substantially governs the content and operation of the draft local environmental plan and that any submissions made pursuant to section 67 should be made having regard to that fact,
[11]   Section 68 Consideration of submissions
Insert after section 68 (8):
  
(9)  After a draft local environmental plan has been submitted to the Director-General under this section:
(a)  the council and the Director-General may (on one or more occasions) agree to the council making changes to the draft plan and resubmitting it under this section, or
(b)  the Director-General may (on one or more occasions) return the draft plan so that the council can make changes to accord with any applicable standard instrument under section 33A or to take into account any directions under section 117.
This subsection applies whether or not a report under section 69 has been furnished in respect of the draft plan.
[12]   Section 69 Report by Director-General
Insert at the end of the section:
  
(2)  The Director-General is not to furnish a report to the Minister under this section unless the Director-General is satisfied that the draft local environmental plan has been prepared in accordance with any applicable standard instrument under section 33A. This subsection does not limit the matters that the Director-General is required to consider for the purposes of a report.
[13]   Section 71 Format of local environmental plan or draft plan
Omit the section.
[14]   Section 72 Development control plans
Omit the section.
[15]   Section 73A
Insert after section 73:
  
73A   Minor amendments of environmental planning instruments
An amending environmental planning instrument may be made under this Part without compliance with the provisions of this Part relating to the conditions precedent to the making of the instrument if the instrument, if made, would amend or repeal a provision of a principal instrument in order to do any one or more of the following:
(a)  correct an obvious error in the principal instrument consisting of a misdescription, the inconsistent numbering of provisions, a wrong cross-reference, a spelling error, a grammatical mistake, the insertion of obviously missing words, the removal of obviously unnecessary words or a formatting error,
(b)  address matters in the principal instrument that are of a consequential, transitional, machinery or other minor nature.
[16]   Section 74A
Insert after section 74:
  
74A   Application of Division
This Division is subject to sections 33A and 33B.
[17]   Part 3, Division 6
Insert after Division 5 of Part 3:
  
Division 6 Development control plans
74B   Definition
(1)  In this Division:
relevant planning authority means:
(a)  in relation to local environmental plans applying to land in (or development in) a local government area—the council of the area, and
(b)  in relation to other environmental planning instruments (or development in the area to which they apply)—the Director-General.
(2)  A reference in this Division to an environmental planning instrument includes a reference to any such draft instrument.
74C   Preparation of development control plans
(1)  The relevant planning authority may prepare a development control plan (or cause such a plan to be prepared) if it considers it necessary or desirable:
(a)  to make more detailed provision with respect to development to achieve the purpose of an environmental planning instrument applying to the land concerned, or
(b)  to identify development as advertised development (so as to make additional but not inconsistent requirements to those imposed by the regulations in relation to development applications), or
(c)  to provide for (or exclude) public or particular advertising or notification of any of the following:
(i)  a development application for specified development (other than designated development or advertised development),
(ii)  a request for the review of a determination of a development application where the applicant for review makes amendments to the development described in the original development application,
(iii)  an application for the modification of a development consent for specified development (including advertised development but not designated development),
(iv)  an application for a complying development certificate, or
(d)  in the case of a council—to specify criteria (in addition to but not inconsistent with any criteria prescribed by the regulations) that the council is to take into consideration in determining whether or not to give an order under Division 2A of Part 6, or
(e)  to make provision for anything permitted by this Act to be prescribed by a development control plan.
Note.
 See for example section 26 (4) (a).
(2)  Only one development control plan made by the same relevant planning authority may apply in respect of the same land. This subsection does not apply to:
(a)  a plan prepared for the purposes of subsection (1) (d) or for any other purpose prescribed by the regulations, or
(b)  a plan prepared for the purpose of amending an existing plan.
If this subsection is not complied with, all the development control plans concerned have no effect.
Note.
 A planning authority may prepare one development control plan for the whole of its area or one plan for each precinct or locality in its area, or prepare one plan for a site (and exclude that site from the area to which other plans apply).
(3)  A development control plan may adopt by reference the provisions of another development control plan.
(4)  A development control plan may amend, substitute or revoke another development control plan.
(5)  A provision of a development control plan (whenever made) has no effect to the extent that:
(a)  it is the same or substantially the same as the provision of an environmental planning instrument applying to the same land, or
(b)  it is inconsistent with a provision of any such instrument or its application prevents compliance with a provision of any such instrument.
74D   Development control plans required or authorised by environmental planning instruments
(1)  An environmental planning instrument may require or permit a development control plan to be prepared before any particular development or kind of development may be carried out (and make provision with respect to the preparation and content of any such plan).
(2)  Any such development control plan may outline the development of all the land to which it applies.
(3)  Any such development control plan may be prepared (and submitted to the relevant planning authority) by the owners of the land to which it applies or by such percentage of those owners as the environmental planning instrument concerned allows. A person authorised by those owners may act on their behalf for the purposes of this subsection.
(4)  The relevant planning authority may make a development control plan submitted to it under this section, including with such changes as it thinks fit.
(5)  If the relevant planning authority refuses to make a development control plan submitted to it under this section (or delays by more than 60 days to make a decision on whether to make the plan):
(a)  the owners may make a development application despite the requirement of the environmental planning instrument concerned for the preparation of a development control plan, or
(b)  the Minister may act in the place of the relevant planning authority to make the plan (with or without modification), but only if the environmental planning instrument concerned authorises the Minister to do so.
(6)  The regulations may extend the period of 60 days referred to in subsection (5) in connection with any failure by the owners to provide further information required by the relevant planning authority for the purposes of making the plan.
Note.
 Section 75M provides that a concept plan may be submitted for a project to which Part 3A applies as an alternative to a development control plan required by an environmental planning instrument. Section 83C provides that a staged development application may be made for development requiring consent under Part 4 as an alternative to a development control plan required by an environmental planning instrument.
74E   Miscellaneous provisions relating to development control plans
(1)  The regulations may make provision for or with respect to development control plans, including:
(a)  the form, structure and subject-matter of development control plans, and
(b)  the procedures for the preparation, public exhibition, making, amendment and repeal of development control plans, and
(c)  the fees payable to the relevant planning authority by owners submitting draft development control plans under section 74D.
(2)  The staged repeal program under section 33B may be extended to development control plans, and for that purpose a reference in that section to an environmental planning instrument is taken to include a reference to a development control plan.
(3)  An environmental planning instrument may exclude or modify the application of development control plans in respect of land to which the instrument applies (whether the plan was prepared before or after the making of the instrument).
(4)  A development control plan must be available for public inspection (without charge):
(a)  at the principal office of the relevant planning authority that prepared the plan, and
(b)  in such other manner as is prescribed by the regulations.
[18]   Sections 82A (4) (a), 96 (1A) (c) and (2) (c), 96AA (1) (b) and 121F
Omit “under section 72” wherever occurring.
[19]   Section 117 Directions by Minister
Insert after section 117 (2):
  
(2A)  A direction under subsection (2):
(a)  may be given to a particular council or to councils generally, and
(b)  may require the inclusion in draft plans of provisions to achieve or give effect to particular principles, aims, objectives or policies, and
(c)  may require draft plans to be strictly consistent or substantially consistent with the terms of the direction (or provide for the circumstances in which an inconsistency can be justified).
Any such direction may be given to councils generally by its publication in the Gazette or on a website maintained by the Department (or both).
[20]   Section 117 (5)
Insert after section 117 (4):
  
(5)  A local environmental plan (or any draft or purported plan) cannot in any court proceedings be challenged, reviewed, called into question, prevented from being made or otherwise affected on the basis of anything in a direction under subsection (1) or (2).
[21]   Section 118 Appointment of environmental planning administrator
Insert after section 118 (1):
  
(1A)  In addition to the circumstances in which an appointment may be made under subsection (1), the Minister may appoint a person under that subsection to administer the functions of the council with respect to the making of local environmental plans if the council fails to comply with the requirements of the staged repeal program under section 33B with respect to the preparation or making of a replacement local environmental plan.
[22]   Schedule 6 Savings, transitional and other provisions
Insert in appropriate Divisional order (and with appropriate clause numbers) in the Part of the Schedule inserted by Schedule 6 to this Act:
  
Division 3 Planning instruments amendments
Review of SEPPs and REPs
(1)  The Minister may, by order published in the Gazette, transfer any provisions of State environmental planning policies or regional environmental plans (with or without modification) to the principal local environmental plans for the local government areas to which the existing provisions apply.
(2)  Subclause (1) does not prevent an environmental planning instrument being made to transfer any of those existing provisions in respect of a particular local area.
(3)  The transfer of any of those existing provisions is taken to be matter of State environmental planning significance for the purposes of this Act.
Standard instruments
The Director-General may issue a certificate under section 65 or furnish a report under section 69 (despite sections 65 (1A) and 69 (2), as inserted by the 2005 Amending Act) if the Director-General is satisfied that:
(a)  significant council resources have been expended in the preparation of the draft instrument before the prescription of the relevant standard instrument, or
(b)  the draft instrument makes a necessary amendment of a principal environmental planning instrument made before the prescription of the relevant standard instrument, or a necessary amendment of an instrument referred to in paragraph (a),
and the Director-General is satisfied that satisfactory arrangements have been made for the making of a replacement instrument in accordance with the relevant standard instrument.
Model provisions
(1)  Model provisions made under section 33 (as in force immediately before its repeal by the 2005 Amending Act) continue in force for the purposes of any existing environmental planning instruments that adopt those model provisions.
(2)  The Minister may, by order published in the Gazette, amend or revoke any of those model provisions, and section 33 (2) (as so in force) applies accordingly.
Development control plans
(1)  A development control plan made under section 51A or 72 and in force immediately before the repeal of that section by the 2005 Amending Act is taken to be a development control plan made under Division 6 of Part 3 (as inserted by that Act).
(2)  Section 74C (as inserted by the 2005 Amending Act) does not render invalid any provision of a development control plan that is continued in force by subclause (1) during the period until a development control plan is made under section 74C in respect of the land concerned.
(3)  Anything done under section 51A or 72 immediately before its repeal by the 2005 Amending Act in connection with a proposed development control plan is taken to have been done under Division 6 of Part 3 (as inserted by that Act).
(4)  Regulations made for the purposes of section 51A or 72 and in force immediately before the repeal of that section by the 2005 Amending Act are taken to have been made for the purposes of Division 6 of Part 3 (as inserted by that Act).
Master plans under existing instruments
(1)  This clause applies to any provision of an environmental planning instrument that is in force on the commencement of this clause and that requires, before the grant of development consent, a master plan (within the meaning of clause 92A of the Environmental Planning and Assessment Regulation 2000 as in force before its amendment by the 2005 Amending Act) for the land concerned.
(2)  While that provision continues in force, it is to be construed as requiring a development control plan under section 74D (as inserted by the 2005 Amending Act) with respect to the matters required to be included in the master plan, and in accordance with the procedures provided for making the master plan, by the environmental planning instrument.
(3)  Any master plan made under that provision before the commencement of this clause is taken to be a development control plan under section 74D (as inserted by the 2005 Amending Act).
Section 117 (2) directions
(1)  Directions given under section 117 (2) before the commencement of section 117 (2A) by the 2005 Amending Act cease to have effect on that commencement.
(2)  However, those directions continue in force for the purposes of any draft local environmental plan that is the subject of a certificate under section 65 issued before that commencement.