Note. The environmental planning legislation comprises 3 elements, namely, this Act, the environmental planning instruments and the regulations made under this Act. The legislative scheme for environmental planning control is, broadly speaking, distributed between the 3 elements as follows:(a) This Part of the Act, Part 4, lays the foundation for the legislative scheme. It contains the major concepts and addresses the major matters of principle.(b) The environmental planning instruments identify particular forms of development according to the threefold classification that is established by Division 1 of this Part. They also determine whether development is exempt development as referred to in section 76 (2) or complying development as referred to in section 76A (5).(c) The regulations contain much of the detail of the various processes that, having regard to the nature of the proposed development, lead to the granting of development consent. They also largely determine whether development is designated development.
Division 1 Carrying out of development—the threefold classification
76 Development that does not need consent
(1) General
If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies.Note. Environmental assessment of the development may nevertheless be required under Part 5.(2) Exempt development
An environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development.(3) If development is exempt development:(a) the development may be carried out, in accordance with the instrument, on land to which the provision applies without the need for development consent, unless that land:(i) is critical habitat, or(ii) is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987), and(b) Part 5 does not apply to the development.A provision made under subsection (2) has no effect at any time during which the land is land to which paragraph (a) (i) or (ii) applies.
76A Development that needs consent
(1) General
If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:(a) such a consent has been obtained and is in force, and(b) the development is carried out in accordance with the consent and the instrument.(2) For the purposes of subsection (1), development consent may be obtained:(a) by the making of a determination by a consent authority to grant development consent, or(b) in the case of complying development, by the issue of a complying development certificate.(3), (4) (Repealed)(5) Complying development
An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.(6) A provision under subsection (5) cannot be made:(a) (Repealed)(b) if the development is designated development, or(c) if the development is development for which development consent cannot be granted except with the concurrence of a person other than:(i) the consent authority, or(ii) the Director-General of National Parks and Wildlife as referred to in section 79B (3), or(d) so as to apply to land that is critical habitat, or(e) so as to apply to land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987), or(f) so as to apply to land that comprises, or on which there is, an item of the environmental heritage:(i) that is subject to an interim heritage order under the Heritage Act 1977, or that is listed on the State Heritage Register under that Act, or(ii) that is identified as such an item in an environmental planning instrument, or(g) so as to apply to land that is identified as an environmentally sensitive area in the environmental planning instrument that makes provision for the complying development.A provision made under subsection (5) has no effect in relation to development or land at any time during which the development or land is development or land to which paragraph (a)–(g) applies.
Note. Further provisions concerning complying development are found in Division 3 of this Part.(7)–(9) (Repealed)
76B Development that is prohibited
If an environmental planning instrument provides that:(a) specified development is prohibited on land to which the provision applies, or(b) development cannot be carried out on land with or without development consent,a person must not carry out the development on the land.
76C Relationship of this Division to this Act
This Division is subject to the other provisions of this Act, unless express provision is made to the contrary.
Division 2 The procedures for development that needs consent
This Division:(a) applies to development that may not be carried out except with development consent, but(b) does not apply to complying development.Note. Under this Part, the procedures by which development consent is obtained differ according to whether the development:(a) (Repealed)(b) is or is not designated development (which it may be declared to be by an environmental planning instrument or the regulations), and(c) is or is not integrated development (see Division 5).
Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations.
78 The development consent process—the main steps
The main steps in the development consent process are set out in sections 78A–81 and in the regulations made for the purposes of this Part.
(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.(2) A single application may be made in respect of one or more of the types of development referred to in paragraphs (a)–(f) of the definition of development in section 4 (1).(3) If the consent authority is a council, a person (other than the Crown or a person acting on behalf of the Crown) may, in the same development application, apply for development consent and approval for anything that requires approval under the following provisions of the Table to section 68 of the Local Government Act 1993, namely:paragraph 1 of Part A
paragraph 1–6 of Part B
paragraph 1–5 of Part C
paragraph 1 of Part E
paragraph 1–5 or 10 of Part F.
(4) In determining a development application to which subsection (3) applies, the council may apply any of the provisions of or under the Local Government Act 1993 that it could apply if the development application were an application under that Act for the relevant approval. In particular, if development consent is granted, the council may impose a condition that is authorised under that Act to be imposed as a condition of an approval.(5) If development consent is granted to a development application to which subsection (3) applies, the council is taken to have granted the relevant approval under the Local Government Act 1993 that authorises the activity, but that Act has no application to the approval so taken to have been granted.(6) In granting development consent to a development application to which subsection (3) applies, the council may, without limiting any other condition it may impose, impose, in relation to the approval taken to have been granted under the Local Government Act 1993, either or both of the following conditions:(a) a condition that the approval is granted only to the applicant and does not attach to or run with the land to which it applies,(b) a condition that the approval is granted for a specified time.(7) A development application cannot be made in respect of land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987) unless any consent to the development required under that Act has been obtained.(8) A development application must be accompanied by:(a) if the application is in respect of designated development—an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations, or(b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats—a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.Note. Part 7A of the Threatened Species Conservation Act 1995 provides for certain circumstances in which development is taken not to significantly affect threatened species, populations or ecological communities, or their habitats.(9) The regulations may specify other things that are required to be submitted with a development application.
79 Public participation—designated development
(1) Public exhibition and notification
As soon as practicable after a development application is made for consent to carry out designated development, the consent authority must:(a) place the application and any accompanying information on public exhibition for a period of not less than 30 days (the submission period) commencing on the day after which notice of the application is first published as referred to in paragraph (d), and(b) give written notice of the application in accordance with the regulations:(i) to such persons as appear to it to own or occupy the land adjoining the land to which the development application relates, and(ii) if practicable, to such other persons as appear to it to own or occupy land the use or enjoyment of which, in its opinion, may be detrimentally affected if the designated development is carried out, and(iii) to such other persons as are required to be notified by the regulations, and(c) cause notice of the application to be exhibited in accordance with the regulations on the land to which the application relates, and(d) cause notice of the application to be published in accordance with the regulations in a newspaper circulating in the locality.(2) If land is:(a) a lot within the meaning of the Strata Schemes (Freehold Development) Act 1973, a written notice to the owners corporation is taken to be a written notice under subsection (1) (b) to the owner or occupier of each lot within the strata scheme, or(b) a lot within the meaning of the Strata Schemes (Leasehold Development) Act 1986, a written notice to the lessor under the leasehold strata scheme concerned and to the owners corporation is taken to be a written notice under subsection (1) (b) to the owner or occupier of each lot within the scheme.(3) If land is owned or occupied by more than one person, a written notice to one owner or one occupier is taken to satisfy the requirements of subsection (1) (b).(4) Inspection of application and accompanying information
During the submission period, any person may inspect the development application and any accompanying information and make extracts from or copies of them.(5) Making of submissions
During the submission period, any person may make written submissions to the consent authority with respect to the development application. A submission by way of objection must set out the grounds of the objection.(6) Circumstances in which public exhibition may be dispensed with
If:(a) a development application for designated development is amended, or substituted, or withdrawn and later replaced before it has been determined by the consent authority, and(b) the consent authority has complied with subsections (1), (2) and (3) in relation to the original application, and(c) the consent authority is of the opinion that the amended, substituted or later application differs only in minor respects from the original application,the consent authority may decide to dispense with further compliance with subsection (1) in relation to the amended, substituted or later application. In that event, compliance with subsection (1) in relation to the original application is taken to be compliance in relation to the amended, substituted or later application.(7) The consent authority must give written notice to the applicant of its decision under subsection (6) at or before the time notice of the determination of the development application is given under section 81.
79A Public participation—advertised development and other notifiable development
(1) Notice of a development application for consent to carry out advertised development is to be given in accordance with this Act, the regulations, the relevant environmental planning instrument and any relevant development control plan.(2) A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application.
79B Consultation and concurrence
(1) General
If, by an environmental planning instrument, the consent authority, before determining the development application, is required to consult with or to obtain the concurrence of a person, the consent authority must, in accordance with the environmental planning instrument and the regulations, consult with or obtain the concurrence of the person, unless the consent authority determines to refuse to grant development consent.(2) However, if, by an environmental planning instrument, the Minister, before determining a development application, is required to obtain the concurrence of a person, the Minister is required only to consult with the person.(3) Consultation and concurrence—threatened species
Development consent cannot be granted for:(a) development on land that is, or is a part of, critical habitat, or(b) development that is likely to significantly affect a threatened species, population, or ecological community, or its habitat,without the concurrence of the Director-General of National Parks and Wildlife or, if a Minister is the consent authority, unless the Minister has consulted with the Minister administering the Threatened Species Conservation Act 1995.Note. If a biobanking statement has been issued in respect of the development under Part 7A of the Threatened Species Conservation Act 1995, the development is taken not to significantly affect threatened species, populations or ecological communities, or their habitats.(4) Despite subsection (3), if the Minister administering the Threatened Species Conservation Act 1995 considers that it is appropriate, that Minister may:(a) elect to act in place of the Director-General of National Parks and Wildlife for the purposes of that subsection, or(b) review and amend any recommendations that that Director-General proposes to make, or any advice that that Director-General proposes to offer, for the purposes of that subsection.(5) In deciding whether or not concurrence should be granted under subsection (3), the Director-General of National Parks and Wildlife or the Minister administering the Threatened Species Conservation Act 1995 must take the following matters into consideration:(a) any species impact statement that accompanied the development application,(b) any assessment report prepared by the consent authority,(c) any submissions received concerning the development application,(d) any relevant recovery plan or threat abatement plan,(e) whether the development proposed is likely to reduce the long-term viability of the species, population or ecological community in the region,(f) whether the development is likely to accelerate the extinction of the species, population or ecological community or place it at risk of extinction,(g) the principles of ecologically sustainable development,(h) the likely social and economic consequences of granting or of not granting concurrence.(6) The Minister administering the Threatened Species Conservation Act 1995 must provide the Minister who is the consent authority with any recommendations made by the Director-General of National Parks and Wildlife concerning determination of a development application relating to development referred to in subsection (3) and, if that Minister does not accept any one or more of the recommendations, that Minister must include in the determination the recommendations not accepted and that Minister’s reasons for not accepting them.(7) A copy of the reasons referred to in subsection (6) must be available for public inspection, during ordinary office hours, at the head office of the National Parks and Wildlife Service.(8) Granting or refusal of concurrence
A person whose concurrence to development is required may:(a) grant concurrence to the development, either unconditionally or subject to conditions, or(b) refuse concurrence to the development.In deciding whether to grant concurrence, the person must take into consideration only the matters stated pursuant to section 30 (3) and applicable to the development (unless the relevant environmental planning instrument is a deemed instrument referred to in Division 2 of Part 21 of Schedule 6).
(9) Giving effect to concurrence
A consent authority that grants consent to the carrying out of development for which a concurrence has been granted must grant the consent subject to any conditions of the concurrence. This does not affect the right of the consent authority to impose conditions under section 80A not inconsistent with the conditions of the concurrence or to refuse consent.(10) Avoidance of consents subject to concurrence
If, by an environmental planning instrument or by subsection (3), a development application may not be determined by the granting of consent without the concurrence of a specified person, a consent granted:(a) without that concurrence, or(b) not subject to any conditions of the concurrence,is, subject to sections 102–104, voidable.(11) However, if the specified person fails to inform the consent authority of the decision concerning concurrence within the time allowed for doing so, the consent authority may determine the development application without the concurrence of the specified person and a development consent so granted is not voidable on that ground.(12) Nothing in this section affects any liability of a consent authority in respect of a consent granted as referred to in subsection (10) (a) or (b).
79BA Consultation and development consent—certain bush fire prone land
(1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land unless the consent authority:(a) is satisfied that the development conforms to the specifications and requirements of Planning for Bushfire Protection, ISBN 0 9585987 8 9, produced by the NSW Rural Fire Service (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document), that are relevant to the development, or(b) has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire.(2) In this section:special fire protection purpose has the same meaning as it has in section 100B of the Rural Fires Act 1997.
(1) Matters for consideration—general
In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:(a) the provisions of:(i) any environmental planning instrument, and(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and(iii) any development control plan, and(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),that apply to the land to which the development application relates,(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,(c) the suitability of the site for the development,(d) any submissions made in accordance with this Act or the regulations,(e) the public interest.Note. See section 75P (2) (a) for circumstances in which determination of development application to be generally consistent with approved concept plan for a project under Part 3A.Note. If a biobanking statement has been issued in respect of a development under Part 7A of the Threatened Species Conservation Act 1995, the consent authority is not required to take into consideration the likely impact of the development on biodiversity values.(2) Compliance with non-discretionary development standards—development other than complying development
If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority:(a) is not entitled to take those standards into further consideration in determining the development application, and(b) must not refuse the application on the ground that the development does not comply with those standards, and(c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,and the discretion of the consent authority under this section and section 80 is limited accordingly.(3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards:(a) subsection (2) does not apply and the discretion of the consent authority under this section and section 80 is not limited as referred to in that subsection, and(b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.Note. The application of non-discretionary development standards to complying development is dealt with in section 85A (3) and (4).(4) Consent where an accreditation is in force
A consent authority must not refuse to grant consent to development on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.(5) A consent authority and an employee of a consent authority do not incur any liability as a consequence of acting in accordance with subsection (4).(6) Definitions
In this section:(a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and(b) non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.
(1) General
A consent authority is to determine a development application by:(a) granting consent to the application, either unconditionally or subject to conditions, or(b) refusing consent to the application.(2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.(3) “Deferred commencement” consent
A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.(4) Total or partial consent
A development consent may be granted:(a) for the development for which the consent is sought, or(b) for that development, except for a specified part or aspect of that development, or(c) for a specified part or aspect of that development.(5) The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development.Note. See also Division 2A for special procedures concerning staged development applications.(6) Restrictions on determination of development applications where Planning Assessment Commission review is held concerning environmental aspects of proposed development
A consent authority that has received notice that the Minister has requested that a review be held by the Planning Assessment Commission with respect to the environmental aspects of proposed development or part of any such proposed development the subject of a development application:(a) must not determine the development application in so far as it relates to proposed designated development, and(b) must not determine the development application in so far as it relates to development that is not designated development until:(i) the review has been held, and(ii) the consent authority has considered the findings and recommendations of the Planning Assessment Commission and any comments made by the Minister that accompanied those findings and recommendations when they were forwarded to the consent authority.(7) If the Minister has requested that a review be held by the Planning Assessment Commission in relation to any proposed designated development the subject of a development application, the Minister is to determine the application after the review has been held and the Minister has considered the findings and recommendations of the Commission.(8) Sections 82, 97 and 98 do not apply to or in respect of the development application determined by the Minister under subsection (7) or its determination.(9) Restrictions on determination of development applications for designated development
A consent authority must not determine a development application for designated development:(a) until after the submission period (within the meaning of section 79 (1) (a)) has expired, or(b) if a submission is made with respect to the application within the submission period, until after 21 days following the date on which a copy of the submission is forwarded to the Director-General have expired.(10) Subsection (9) (b) does not apply:(a) to a consent authority being the Minister or the Director-General, or(b) if the Director-General has waived the requirement that submissions be forwarded to the Director-General for a specified development application or for a specified class of development applications.(10A) (Repealed)(11) Other restrictions on determination of development applications
The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined.(12) Effect of issuing construction certificate
If a consent authority or an accredited certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 96).(13), (14) (Repealed)
(1) Conditions—generally
A condition of development consent may be imposed if:(a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or(b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 10 in relation to the land to which the development application relates, or(c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or(d) it limits the period during which development may be carried out in accordance with the consent so granted, or(e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or(g) it modifies details of the development the subject of the development application, or(h) it is authorised to be imposed under section 80 (3) or (5), subsections (5)–(9) of this section or section 94, 94A, 94EF or 94F.(2) Ancillary aspects of development
A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.(3) A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 97, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect.(4) Conditions expressed in terms of outcomes or objectives
A consent may be granted subject to a condition expressed in a manner that identifies both of the following:(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,(b) clear criteria against which achievement of the outcome or objective must be assessed.(5) Modification or surrender of consents or existing use rights
If a consent authority imposes (as referred to in subsection (1) (b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 10, the consent or right may be modified or surrendered subject to and in accordance with the regulations.(6) Conditions and other arrangements concerning security
A development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of any one or more of the following:(a) making good any damage caused to any property of the consent authority (or any property of the corporation) as a consequence of the doing of anything to which the consent relates,(b) completing any public work (such as road work, kerbing and guttering, footway construction, stormwater drainage and environmental controls) required in connection with the consent,(c) remedying any defects in any such public work that arise within 6 months after the work is completed.(7) The security is to be for such reasonable amount as is determined by the consent authority.(8) The security may be provided, at the applicant’s choice, by way of:(a) deposit with the consent authority, or(b) a guarantee satisfactory to the consent authority.(9) The security is to be provided before carrying out any work in accordance with the development consent or at such other time as may be agreed to by the consent authority.(10) The funds realised from a security may be paid out to meet any cost referred to in subsection (6). Any balance remaining is to be refunded to, or at the direction of, the persons who provided the security.(10A) A condition of a consent has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development.(11) Prescribed conditions
A development consent is subject to such conditions as may be prescribed by the regulations.
81 Post-determination notification
(1) The consent authority must, in accordance with the regulations, notify its determination of a development application to:(a) the applicant, and(b) in the case of a development application for consent to carry out designated development, each person who made a submission under section 79 (5), and(c) such other persons as are required by the regulations to be notified of the determination of the development application.(2) If the consent authority is not the council, the consent authority must notify the council of its determination.(3) In the case of a development application for consent to carry out designated development, the consent authority must also notify each person who made a submission under section 79 (5) by way of objection of the person’s rights to appeal against the determination and of the applicant’s rights to appeal against the determination.
81A Effects of development consents and commencement of development
(1) Erection of buildings
A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M.Note. Section 109M prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.(2) The erection of a building in accordance with a development consent must not be commenced until:(a) a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and(b) the person having the benefit of the development consent has:(i) appointed a principal certifying authority for the building work, and(ii) notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and(b1) the principal certifying authority has, no later than 2 days before the building work commences:(i) notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and(ii) notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and(b2) the person having the benefit of the development consent, if not carrying out the work as an owner-builder, has:(i) appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and(ii) notified the principal certifying authority of any such appointment, and(iii) unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and(c) the person having the benefit of the development consent has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the erection of the building.(3) Subdivision of land
A development consent that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems.Note. A plan of subdivision cannot be registered under the Conveyancing Act 1919 unless a subdivision certificate has been issued for the subdivision.(4) Subdivision work in accordance with a development consent must not be commenced until:(a) a construction certificate for the subdivision work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and(b) the person having the benefit of the development consent has appointed a principal certifying authority for the subdivision work, and(b1) the principal certifying authority has, no later than 2 days before the subdivision work commences:(i) notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and(ii) notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the subdivision work, and(c) the person having the benefit of the development consent has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the subdivision work.(5) Regulations may provide for the issue of certificates
The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.(6) Crown building work
Subsections (2) and (4) do not apply in relation to Crown building work that is certified, in accordance with section 109R, to comply with the technical provisions of the State’s building laws.(7) Penalty for contravention of subsection (2) or (4)
The maximum penalty that may be imposed for a contravention of subsection (2) or (4) is 1,000 penalty units.
82 Circumstances in which consent is taken to have been refused
(1) A consent authority that has not determined a development application within the relevant period, prescribed by the regulations, applicable to the development the subject of the development application is, for the purpose only of section 97, taken to have determined the application by refusing consent on the date on which the period expires.(2) Nothing in subsection (1) prevents a consent authority from determining a development application after the expiration of the relevant period referred to in that subsection, whether on a review under section 82A or otherwise.(3) A determination pursuant to subsection (2) does not, subject to subsection (4), prejudice or affect the continuance or determination of an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made.(4) If a determination pursuant to subsection (2) is made by granting consent, the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal (being an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made) withdrawn at any time prior to the determination of that appeal.
(1) If the consent authority is a council, an applicant may request the council to review a determination of the applicant’s application, other than:(a) a determination to issue or refuse to issue a complying development certificate, or(b) a determination in respect of designated development, or(c) a determination in respect of integrated development, or(d) a determination made by the council under section 116E in respect of an application by the Crown.(2) A request for a review may be made at any time, subject to subsection (2A).(2A) A determination cannot be reviewed:(a) after the time limited for the making of an appeal under section 97 expires, if no such appeal is made against the determination, or(b) after an appeal under section 97 against the determination is disposed of by the Court, if such an appeal is made against the determination.(3) The prescribed fee must be paid in connection with a request for a review.(3A) In requesting a review, the applicant may make amendments to the development described in the original application, subject to subsection (4) (c).(4) The council may review the determination if:(a) it has notified the request for review in accordance with:(i) the regulations, if the regulations so require, or(ii) a development control plan, if the council has made a development control plan that requires the notification or advertising of requests for the review of its determinations, and(b) it has considered any submissions made concerning the request for review within any period prescribed by the regulations or provided by the development control plan, as the case may be, and(c) in the event that the applicant has made amendments to the development described in the original application, the consent authority is satisfied that the development, as amended, is substantially the same development as the development described in the original application.(4A) As a consequence of its review, the council may confirm or change the determination.(5) The decision whether or not to review the determination must not be made by the person who made the determination unless that person was the council, but is to be made by a person who is qualified under subsection (6) to make the review.(6) If the council reviews the determination, the review must be made by:(a) if the determination was made by a delegate of the council—the council or another delegate of the council who is not subordinate to the delegate who made the determination, or(b) if the determination was made by the council—the council.(7) The council must give notice of the result of the review to the applicant as soon as practicable after the review.(8) If on the review the council grants development consent, or varies the conditions of a development consent, the council must endorse on the notice the date from which the consent, or the consent as varied, operates.(9) If on a review the council changes a determination, the changed determination replaces the earlier determination as from the date of the review.(10) If on a review the council grants development consent, or varies the conditions of a development consent, the council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal made under section 97 in respect of its determination withdrawn at any time prior to the determination of that appeal.(11) A decision on a review may not be further reviewed under this section.
83 Date from which consent operates
(1) Subject to subsections (2) and (3), if a determination is made by the granting of consent, the consent becomes effective and operates from:(a) except as provided in paragraph (b)—the date that is endorsed on the notice given to the applicant in accordance with section 81 (1) of the determination of the development application or under section 82A (7), or(b) in the case of designated development to which an objection has been made in accordance with section 79 (5):(i) if consent was granted under section 80 (7) following the holding of a review by the Planning Assessment Commission—the date that is endorsed on the notice of the determination of the development application given to the applicant in accordance with section 81 (1), or(ii) in any other case—the expiration of 28 days from the date that is endorsed on the notice of the determination of the development application given to the applicant in accordance with section 81 (1).(2) Subject to subsection (3), if a determination is made by the granting of consent or the granting of consent subject to conditions, and an appeal has been made under section 97 or 98, the consent:(a) ceases to be, or does not become, effective pursuant to subsection (1), and(b) becomes effective and operates from the date of the determination of that appeal, except where that decision is to refuse development consent.(3) A consent referred to in subsection (1) or (2) is void and, except for the purposes of section 97 or 98, is taken never to have been granted if:(a) an appeal under section 97 is dismissed and development consent is refused, or(b) an appeal under section 98 is upheld, with the effect that development consent is refused.(4) If a determination is made by refusing consent or if an application is taken by section 82 to have been so determined, and the decision on the appeal made pursuant to section 97 in respect of that determination has the effect of granting consent, the decision is taken to be a consent granted under this Division and that consent is effective and operates from the date of that decision.(5) Despite any other provision of this section, a development consent is taken to become effective and operate from such date as may be fixed by:(a) a court (whether or not the Land and Environment Court) that finally determines an appeal on a question of law which confirms the validity of, or results in the granting of, the consent, or(b) the Land and Environment Court, if the validity of a consent granted by that Court is confirmed by, or the consent is granted by that Court as a result of, such a final determination made by another court that has not fixed that date.(6) A development consent in respect of a development application that is taken to have been determined under Part 5A operates from the date on which it is taken to have been determined.
Division 2A Special procedures concerning staged development applications
83A Application of this Division
This Division applies to staged development applications and to consents granted on the determination of those applications.
83B Staged development applications
(1) For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development.(2) A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application.(3) If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless:(a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or(b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.(4) The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3).
83C Staged development applications as alternative to dcp required by environmental planning instruments
(1) An environmental planning instrument cannot require the making of a staged development application before development is carried out.(2) However, if an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, that obligation may be satisfied by the making and approval of a staged development application in respect of that land.Note. Section 74D (5) also authorises the making of a development application where the relevant planning authority refuses to make, or delays making, a development control plan.(3) Any such staged development application is to contain the information required to be included in the development control plan by the environmental planning instrument or the regulations.
83D Status of staged development applications and consents
(1) The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a staged development application and a development consent granted on the determination of any such application.Note. Applicable provisions in respect of staged development applications include provisions relating to designated development, integrated development and regulations made under section 105.(2) While any consent granted on the determination of a staged development application for a site remains in force, the determination of any further development application in respect of that site cannot be inconsistent with that consent.(3) Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a staged development application.Note. See section 95 (2) which prevents a reduction in the 5 year period of a development consent.
Division 3 Special procedure for complying development
84 Application of this Division
This Division applies to complying development.
84A Carrying out of complying development
(1) A person may carry out complying development on land if:(a) the person has been issued with a complying development certificate for the development, and(b) the development is carried out in accordance with:(i) the complying development certificate, and(ii) any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued.(2) An application for a complying development certificate may be made:(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.(3) The regulations may provide for the procedures for making an application, the fees payable in connection with an application and the procedures for dealing with an application.(4) (Repealed)(5) Nothing in this Division prevents a consent authority from considering and determining a development application for the carrying out of complying development.
85 What is a “complying development certificate”?
(1) Terms of complying development certificate
A complying development certificate is a certificate:(a) that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and(b) in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia.(2) A complying development certificate may indicate different classifications for different parts of the same building.Note. To the extent to which it deals with the classification of a proposed building, a complying development certificate under this Division replaces the statement of classification formerly issued under the regulations under the Local Government Act 1993.(3) Erection of buildings
A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 109M.Note. Section 109M prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.(4) Subdivision of land
A complying development certificate that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems.Note. A plan of subdivision cannot be registered under the Conveyancing Act 1919 unless a subdivision certificate has been issued for the subdivision.(5) Other requirements for complying development certificates
The regulations:(a) may impose other requirements concerning the issue of complying development certificates, and(b) may provide for the form in which a complying development certificate is to be issued.(5A) A complying development certificate has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development.(6) For the purposes of this section, development standard includes a provision of a development control plan that would be a development standard, within the meaning of section 4, if the provision were in an environmental planning instrument.
85A Process for obtaining complying development certificates
(1) Application
An applicant may, in accordance with the regulations, apply to:(a) the council, or(b) an accredited certifier,for a complying development certificate.(2) (Repealed)(3) Evaluation
The council or accredited certifier must consider the application and determine:(a) whether or not the proposed development is complying development, and(b) whether or not the proposed development complies with the relevant development standards, and(c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions.(4) A council or accredited certifier must not refuse to issue a complying development certificate on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.(5) A council, an employee of a council and an accredited certifier do not incur any liability as a consequence of acting in accordance with subsection (4).(6) Determination
The council or an accredited certifier may determine an application:(a) by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or(b) by refusing to issue a complying development certificate.(7) The council or an accredited certifier must not refuse to issue a complying development certificate if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the regulations relating to the issue of a complying development certificate.(8) The determination of an application by the council or accredited certifier must be completed within the period prescribed by the regulations (or such longer period as may be agreed to by the applicant) after lodgment of the application.(9) In determining the application, the council or the accredited certifier must impose a condition that is required to be imposed under Division 6 in relation to the complying development.(10) There is no right of appeal against the determination of, or a failure or refusal to determine, an application for a complying development certificate by a council or an accredited certifier.(10A) Payment of long service levy
Where a council or accredited certifier completes a complying development certificate, that certificate is not to be forwarded or delivered to the applicant, unless any long service levy payable under section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) has been paid.(11) Post-determination notification
On the determination of an application for the issue of a complying development certificate:(a) the council or accredited certifier must notify the applicant of the determination, and(b) the accredited certifier must notify the council of the determination, and(c) if the determination is to issue a complying development certificate, the council or accredited certifier must notify any other person, if required to do so by the regulations, in accordance with the regulations.(12) For the purposes of subsection (7), development standard includes a provision of a development control plan that would be a development standard, within the meaning of section 4, if the provision were in an environmental planning instrument.
86 Commencement of complying development
(1) Erection of buildings
The erection of a building in accordance with a complying development certificate must not be commenced until:(a) the person having the benefit of the complying development certificate has:(i) appointed a principal certifying authority for the building work, and(ii) notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and(a1) the principal certifying authority has, no later than 2 days before the building work commences:(i) notified the council of his or her appointment, and(ii) notified the person having the benefit of the complying development certificate of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and(a2) the person having the benefit of the complying development certificate, if not carrying out the work as an owner-builder, has:(i) appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and(ii) notified the principal certifying authority of any such appointment, and(iii) unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and(b) the person having the benefit of the complying development certificate has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the erection of the building.(2) Subdivision of land
Subdivision work in accordance with a complying development certificate must not be commenced until:(a) the person having the benefit of the complying development certificate has appointed a principal certifying authority for the subdivision work, and(a1) the principal certifying authority has, no later than 2 days before the subdivision work commences, notified the council of his or her appointment, and(b) the person having the benefit of the complying development certificate has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the subdivision work.(3) Crown development
Subsections (1) and (2) do not apply in relation to development carried out by the Crown.(4) Penalty for contravention of subsection (1) or (2)
The maximum penalty that may be imposed for a contravention of subsection (1) or (2) is 300 penalty units.
86A Duration of complying development certificate
(1) A complying development certificate becomes effective and operates from the date endorsed on the certificate.(2) A complying development certificate lapses 5 years after the date endorsed on the certificate.(3) However, a complying development certificate does not lapse if the development to which it relates is physically commenced on the land to which the certificate applies within the period of 5 years after the date endorsed on the certificate.(4) No proceedings may be taken before a court or tribunal to extend the 5-year period.
87 Modification of complying development
(1) A person who has made an application to carry out complying development and a person having the benefit of a complying development certificate may apply to modify the development the subject of the application or certificate.(2) This Division applies to an application to modify development in the same way as it applies to the original application.
(1) In this Division:applicable regional panel for development means the regional panel for the part of the State in which the development is to be carried out.
Crown development application means a development application made by or on behalf of the Crown.
regional panel means a joint regional planning panel.
(2) A reference in this Division to the Crown:(a) includes a reference to a person who is prescribed by the regulations to be the Crown for the purposes of this Division, and(b) does not include a reference to:(i) a capacity of the Crown that is prescribed by the regulations not to be the Crown for the purposes of this Division, or(ii) a person who is prescribed by the regulations not to be the Crown for the purposes of this Division.
89 Determination of Crown development applications
(1) A consent authority (other than the Minister) must not:(a) refuse its consent to a Crown development application, except with the approval of the Minister, or(b) impose a condition on its consent to a Crown development application, except with the approval of the applicant or the Minister.(2) If the consent authority fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the consent authority may refer the application:(a) to the Minister, if the consent authority is not a council, or(b) to the applicable regional panel, if the consent authority is a council.(3) An applicable regional panel to which a Crown development application is referred may exercise the functions of the council as a consent authority (subject to subsection (1)) with respect to the application.(4) A decision by a regional panel in determining a Crown development application is taken for all purposes to be the decision of the council.(5) If an applicable regional panel fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the panel may refer the application to the Minister.(6) The party that refers an application under this section must notify the other party in writing that the application has been referred.(7) When an application is referred under this section to an applicable regional panel or the Minister, the consent authority must, as soon as practicable, submit to the panel or the Minister:(a) a copy of the development application, and(b) details of its proposed determination of the development application, and(c) the reasons for the proposed determination, and(d) any relevant reports of another public authority.
(1) On a referral being made by a consent authority or an applicable regional panel to the Minister under this Division, the Minister may direct the relevant consent authority, within the time specified in the direction:(a) to approve the Crown development application, with or without specified conditions, or(b) to refuse the Crown development application.(2) A consent authority must comply with a direction by the Minister.(3) If the consent authority fails to comply, the consent authority is taken, on the last date for compliance specified in the direction, to have determined the Crown development application in accordance with the Minister’s direction.(4) Despite subsection (2), a consent authority may vary a condition specified by the Minister with the approval of the applicant.
89B Modification of Crown development consents
This Division applies to an application made by or on behalf of the Crown under section 96 in the same way as it applies to an application for development consent.
Division 5 Special procedure for integrated development
90 Application of this Division
(1) This Division applies to integrated development.(2) However, this Division does not apply to development the subject of a development application made by or on behalf of the Crown (within the meaning of Division 4).
In this Division:approval means a consent, licence, permit, permission or any form of authorisation.
approval body means a person who may grant an approval.
first renewal of an approval means, in the case of an environment protection licence under the Protection of the Environment Operations Act 1997, the first review of the licence under section 78.
grant an approval includes give or issue an approval.
91 What is “integrated development”?
(1) Integrated development is development (not being complying development) that, in order for it to be carried out, requires development consent and one or more of the following approvals:
Act
Provision
Approval
s 144
aquaculture permit
s 201
permit to carry out dredging or reclamation work
s 205
permit to cut, remove, damage or destroy marine vegetation on public water land or an aquaculture lease, or on the foreshore of any such land or lease
s 219
permit to:
(a) set a net, netting or other material, or(b) construct or alter a dam, floodgate, causeway or weir, or(c) otherwise create an obstruction,across or within a bay, inlet, river or creek, or across or around a flats 58
approval in respect of the doing or carrying out of an act, matter or thing referred to in s 57 (1)
s 15
approval to alter or erect improvements within a mine subsidence district or to subdivide land therein
ss 63, 64
grant of mining lease
s 90
consent to knowingly destroy, deface or damage or knowingly cause or permit the destruction or defacement of or damage to, a relic or Aboriginal place
s 9
grant of production lease
ss 43 (a), 47 and 55
Environment protection licence to authorise carrying out of scheduled development work at any premises.
ss 43 (b), 48 and 55
Environment protection licence to authorise carrying out of scheduled activities at any premises (excluding any activity described as a “waste activity” but including any activity described as a “waste facility”).
ss 43 (d), 55 and 122
Environment protection licences to control carrying out of non-scheduled activities for the purposes of regulating water pollution resulting from the activity.
s 138
consent to:
(a) erect a structure or carry out a work in, on or over a public road, or(b) dig up or disturb the surface of a public road, or(c) remove or interfere with a structure, work or tree on a public road, or(d) pump water into a public road from any land adjoining the road, or(e) connect a road (whether public or private) to a classified roads 100B
authorisation under section 100B in respect of bush fire safety of subdivision of land that could lawfully be used for residential or rural residential purposes or development of land for special fire protection purposes
ss 89, 90, 91
water use approval, water management work approval or activity approval under Part 3 of Chapter 3
(1A) Development is integrated development in respect of a licence that may be granted under the Protection of the Environment Operations Act 1997 to control the carrying out of non-scheduled activities for the purpose of regulating water pollution only if:(a) the development application stipulates that an application for such a licence has been or will be made in respect of the development, or(b) the Environment Protection Authority notifies the consent authority in writing before the development application is granted or refused that an application for such a licence has been or may be made in respect of the development.(2) Development is not integrated development in respect of the consent required under section 90 of the National Parks and Wildlife Act 1974 unless:(a) a relic referred to in that section is known, immediately before the development application is made, to exist on the land to which the development application applies, or(b) the land to which the development application applies is an Aboriginal place within the meaning of that Act immediately before the development application is made.(3) Development is not integrated development in respect of the consent required under section 138 of the Roads Act 1993 if, in order for the development to be carried out, it requires the development consent of a council and the approval of the same council.(4) Development is not integrated development in respect of the approval required under section 57 of the Heritage Act 1977 if the approval that is required is the approval of a council.
91A Development that is integrated development
(1) This section applies to the determination of a development application for development that is integrated development.(2) Before granting development consent to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such approval if the consent authority determines to refuse to grant development consent.(3) A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purposes of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval.(4) If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application.(5) If the approval body fails to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval, or of the general terms of its approval:(a) the consent authority may determine the development application, and(b) if the consent authority determines the development application by granting consent:despite any other Act or law.(i) the approval body cannot refuse to grant approval to an application for approval in respect of the development, and(ii) an approval granted by the approval body must not be inconsistent with the development consent, and(iii) section 93 applies to an approval so granted as if it were an approval the general terms of which had been provided to the consent authority,(6) If a development application is determined, whether or not by the granting of development consent, the consent authority must notify all relevant approval bodies of the determination.Note. If a dispute arises under this section between a consent authority and an approval body, the dispute may be dealt with under section 121.
If, in relation to integrated development:(a) notice of a development application is given under section 79 or 79A, and(b) the consent authority obtains from an approval body the general terms of any approval proposed to be granted by the approval body in relation to the development or the approval body fails to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval or of the general terms of its approval, and(c) the consent authority determines the application by granting consent,the notice is taken to be notice duly given for the purpose of any law that requires the giving of public notice in relation to an application for the approval of the approval body to that development.
93 Granting and modification of approval by approval body
(1) Despite any other Act or law, an approval body must, in respect of integrated development for which development consent has been granted following the provision by the approval body of the general terms of the approval proposed to be granted by the approval body in relation to the development, grant approval to any application for approval that is made within 3 years after the date on which the development consent is granted if, within that 3-year period, the development consent has not lapsed or been revoked.(2) The approval may be granted subject to conditions that are not inconsistent with the development consent. Neither the provisions of section 80A (6)–(10) nor the imposition of conditions as to security by the consent authority prevent an approval body from imposing conditions, or additional conditions, as to security.(3) Subsection (1) does not apply to or limit the granting of approval to an application for renewal of an approval.(4) An approval body cannot vary the terms of an approval granted for integrated development for which development consent has been granted before the expiration, lapsing or first renewal of the approval, whichever first occurs, other than to make variations that are not inconsistent with the development consent.(5) Subsection (4) does not prevent:(a) the modification, in accordance with section 96 or 96A, of the development consent at any time, or(b) if a development consent is modified as referred to in paragraph (a) before the expiration, lapsing or first renewal, whichever first occurs, of the approval, the modification in accordance with law of the approval to any necessary consequential extent, or(c) the exercise by the approval body of any of its other functions, such as the issuing of orders, the suspension or cancellation of an approval or the prosecution of offences.
93A Effect of approval if the approval body is also a concurrence authority
If the concurrence of a person who is also an approval body is required before a consent authority may grant a development consent, the granting of the general terms of its approval is taken to also grant the concurrence provided that the matters to be considered in granting the general terms of its approval are the same as those required to be considered in deciding whether or not to grant the concurrence.
(1) Applicant’s appeal rights
This Division does not affect any right of objection, appeal or review conferred on an applicant for an approval under the Act that provides for the granting of the approval, except as provided by subsection (2).(2) Restriction on appellate body
Despite any other Act or law, section 93 applies to a person, court or tribunal that deals with an objection, appeal or review referred to in this section in the same way as it applies to an approval body.
Division 6 Development contributions
In this Division:contributions plan means a contributions plan approved under section 94EA.
development corporation means a development corporation constituted under Part 2 of the Growth Centres (Development Corporations) Act 1974.
growth centre has the same meaning as it has in the Growth Centres (Development Corporations) Act 1974.
planning agreement means a voluntary agreement referred to in section 93F.
planning authority means:
(a) a council, or(b) the Minister, or(c) the corporation, or(d) a development corporation (within the meaning of the Growth Centres (Development Corporations) Act 1974), or(e) a public authority declared by the regulations to be a planning authority for the purposes of this Division.public amenities or public services do not include water supply or sewerage services.
special contributions area means land for the time being described in Schedule 5A.
93D Relationship to planning instruments
This Division does not derogate from or otherwise affect any provision of an environmental planning instrument, whether made before or after the commencement of this section, that requires satisfactory arrangements to be made for the provision of particular kinds of public infrastructure, facilities or services before development is carried out.
93E Provisions relating to money etc contributed under this Division (other than Subdivision 4)
(1) A consent authority or planning authority is to hold any monetary contribution or levy that is paid under this Division (other than Subdivision 4) in accordance with the conditions of a development consent or with a planning agreement for the purpose for which the payment was required, and apply the money towards that purpose within a reasonable time.(2) However, money paid under this Division (other than Subdivision 4) for different purposes in accordance with the conditions of development consents may be pooled and applied progressively for those purposes, subject to the requirements of any relevant contributions plan or ministerial direction under this Division (other than Subdivision 4).(3) Land dedicated in accordance with this Division (other than Subdivision 4) is to be made available by the consent authority or planning authority for the purpose for which the dedication was required and within a reasonable time.(4) A reference in this section to a monetary contribution or levy includes a reference to any additional amount earned from its investment.
Subdivision 2 Planning agreements
(1) A planning agreement is a voluntary agreement or other arrangement under this Division between a planning authority (or 2 or more planning authorities) and a person (the developer):(a) who has sought a change to an environmental planning instrument, or(b) who has made, or proposes to make, a development application, or(c) who has entered into an agreement with, or is otherwise associated with, a person to whom paragraph (a) or (b) applies,under which the developer is required to dedicate land free of cost, pay a monetary contribution, or provide any other material public benefit, or any combination of them, to be used for or applied towards a public purpose.(2) A public purpose includes (without limitation) any of the following:(a) the provision of (or the recoupment of the cost of providing) public amenities or public services,(b) the provision of (or the recoupment of the cost of providing) affordable housing,(c) the provision of (or the recoupment of the cost of providing) transport or other infrastructure relating to land,(d) the funding of recurrent expenditure relating to the provision of public amenities or public services, affordable housing or transport or other infrastructure,(e) the monitoring of the planning impacts of development,(f) the conservation or enhancement of the natural environment.(3) A planning agreement must provide for the following:(a) a description of the land to which the agreement applies,(b) a description of:(i) the change to the environmental planning instrument to which the agreement applies, or(ii) the development to which the agreement applies,(c) the nature and extent of the provision to be made by the developer under the agreement, the time or times by which the provision is to be made and the manner by which the provision is to be made,(d) in the case of development, whether the agreement excludes (wholly or in part) or does not exclude the application of section 94, 94A or 94EF to the development,(e) if the agreement does not exclude the application of section 94 to the development, whether benefits under the agreement are or are not to be taken into consideration in determining a development contribution under section 94,(f) a mechanism for the resolution of disputes under the agreement,(g) the enforcement of the agreement by a suitable means, such as the provision of a bond or guarantee, in the event of a breach of the agreement by the developer.(3A) A planning agreement cannot exclude the application of section 94 or 94A in respect of development unless the consent authority for the development or the Minister is a party to the agreement.(4) A provision of a planning agreement in respect of development is not invalid by reason only that there is no connection between the development and the object of expenditure of any money required to be paid by the provision.Note. See section 93E (1), which requires money paid under a planning agreement to be applied for the purpose for which it was paid within a reasonable time.(5) If a planning agreement excludes the application of section 94 or 94A to particular development, a consent authority cannot impose a condition of development consent in respect of that development under either of those sections (except in respect of the application of any part of those sections that is not excluded by the agreement).(5A) A planning authority, other than the Minister, is not to enter into a planning agreement excluding the application of section 94EF without the approval of:(a) the Minister, or(b) a development corporation designated by the Minister to give approvals under this subsection.(6) If a planning agreement excludes benefits under a planning agreement from being taken into consideration under section 94 in its application to development, section 94 (6) does not apply to any such benefit.(7) Any Minister, public authority or other person approved by the Minister is entitled to be an additional party to a planning agreement and to receive a benefit under the agreement on behalf of the State.(8) A council is not precluded from entering into a joint planning agreement with another council or other planning authority merely because it applies to any land not within, or any purposes not related to, the area of the council.(9) A planning agreement cannot impose an obligation on a planning authority:(a) to grant development consent, or(b) to exercise any function under this Act in relation to a change to an environmental planning instrument.(10) A planning agreement is void to the extent, if any, to which it requires or allows anything to be done that, when done, would breach this section or any other provision of this Act, or would breach the provisions of an environmental planning instrument or a development consent applying to the relevant land.(11) A reference in this section to a change to an environmental planning instrument includes a reference to the making or revocation of an environmental planning instrument.
93G Information about planning agreements
(1) A planning agreement cannot be entered into, and a planning agreement cannot be amended or revoked, unless public notice has been given of the proposed agreement, amendment or revocation, and a copy of the proposed agreement, amendment or revocation has been available for inspection by the public for a period of not less than 28 days.(2) The regulations may provide for the public notice to be given under subsection (1) and may provide that it may be given contemporaneously with, in association with, or as part of, any other public notice or public notification that is required to be given of any matter relevant to the planning agreement.(3) If the Minister is not a party to a planning agreement, the relevant planning authority that is a party to the agreement must provide to the Minister:(a) a copy of the agreement within 14 days after the agreement is entered into, and(b) if the agreement is amended, a copy of the amendment within 14 days after the amendment is made, and(c) if the agreement is revoked, notice of the revocation within 14 days after the revocation occurs.(4) If a council is not a party to a planning agreement that applies to the area of the council, the relevant planning authority that is a party to the agreement must provide to the council:(a) a copy of the agreement within 14 days after the agreement is entered into, and(b) if the agreement is amended, a copy of the amendment within 14 days after the amendment is made, and(c) if the agreement is revoked, notice of the revocation within 14 days after the revocation occurs.(5) A planning authority that has entered into one or more planning agreements must, while any such planning agreements remain in force, include in its annual report particulars of compliance with and the effect of the planning agreements during the year to which the report relates.
93H Registered planning agreements to run with land
(1) A planning agreement can be registered under this section if the following persons agree to its registration:(a) if the agreement relates to land under the Real Property Act 1900—each person who has an estate or interest in the land registered under that Act, or(b) if the agreement relates to land not under the Real Property Act 1900—each person who is seised or possessed of an estate or interest in the land.(2) On lodgement by a planning authority of an application for registration in a form approved by the Registrar-General, the Registrar-General is to register the planning agreement:(a) by making an entry in the relevant folio of the Register kept under the Real Property Act 1900 if the agreement relates to land under that Act, or(b) by registering the agreement in the General Register of Deeds if the agreement relates to land not under the Real Property Act 1900.(3) A planning agreement that has been registered by the Registrar-General under this section is binding on, and is enforceable against, the owner of the land from time to time as if each owner for the time being had entered into the agreement.(4) A reference in this section to a planning agreement includes a reference to any amendment or revocation of a planning agreement.
93I Circumstances in which planning agreements can or cannot be required to be made
(1) A provision of an environmental planning instrument (being a provision made after the commencement of this section):(a) that expressly requires a planning agreement to be entered into before a development application can be made, considered or determined, or(b) that expressly prevents a development consent from being granted or having effect unless or until a planning agreement is entered into,has no effect.(2) A consent authority cannot refuse to grant development consent on the ground that a planning agreement has not been entered into in relation to the proposed development or that the developer has not offered to enter into such an agreement.(3) However, a consent authority can require a planning agreement to be entered into as a condition of a development consent, but only if it requires a planning agreement that is in the terms of an offer made by the developer in connection with:(a) the development application, or(b) a change to an environmental planning instrument sought by the developer for the purposes of making the development application,or that is in the terms of a commitment made by the proponent in a statement of commitments made under Part 3A.(4) In this section, planning agreement includes any agreement (however described) containing provisions similar to those that are contained in an agreement referred to in section 93F.
93J Jurisdiction of Court with respect to planning agreements
(1) A person cannot appeal to the Court under this Act against the failure of a planning authority to enter into a planning agreement or against the terms of a planning agreement.(2) This section does not affect the jurisdiction of the Court under section 123.
93K Determinations or directions by Minister
The Minister may, generally or in any particular case or class of cases, determine or direct any other planning authority as to:(a) the procedures to be followed in negotiating a planning agreement, or(b) the publication of those procedures, or(c) other standard requirements with respect to planning agreements.
93L Regulations—planning agreements
The regulations may make provision for or with respect to planning agreements, including the following:(a) the form of planning agreements,(b) the subject-matter of planning agreements,(c) the making, amendment and revocation of planning agreements, including the giving of public notice and inspection by the public,(d) the public inspection of planning agreements after they have been made.
Subdivision 3 Local infrastructure contributions
94 Contribution towards provision or improvement of amenities or services
(1) If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring:(a) the dedication of land free of cost, or(b) the payment of a monetary contribution,or both.(2) A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned.(3) If:(a) a consent authority has, at any time, whether before or after the date of commencement of this Part, provided public amenities or public services within the area in preparation for or to facilitate the carrying out of development in the area, and(b) development for which development consent is sought will, if carried out, benefit from the provision of those public amenities or public services,the consent authority may grant the development consent subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services (being the cost as indexed in accordance with the regulations).(4) A condition referred to in subsection (3) may be imposed only to require a reasonable contribution towards recoupment of the cost concerned.(5) The consent authority may accept:(a) the dedication of land in part or full satisfaction of a condition imposed in accordance with subsection (3), or(b) the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with subsection (1) or (3).(6) If a consent authority proposes to impose a condition in accordance with subsection (1) or (3) in respect of development, the consent authority must take into consideration any land, money or other material public benefit that the applicant has elsewhere dedicated or provided free of cost within the area (or any adjoining area) or previously paid to the consent authority, other than:(a) a benefit provided as a condition of the grant of development consent under this Act, or(b) a benefit excluded from consideration under section 93F (6).(7) If:(a) a condition imposed under subsection (1) or (3) in relation to development has been complied with, and(b) a public authority would, but for this subsection, be entitled under any other Act to require, in relation to or in connection with that development, a dedication of land or payment of money in respect of the provision of public amenities or public services or both,then, despite that other Act, compliance with the condition referred to in paragraph (a) is taken to have satisfied the requirement referred to in paragraph (b) to the extent of the value (determined, if the regulations so provide, in accordance with the regulations) of the land dedicated or the amount of money paid in compliance with the condition.
94A Fixed development consent levies
(1) A consent authority may impose, as a condition of development consent, a requirement that the applicant pay a levy of the percentage, authorised by a contributions plan, of the proposed cost of carrying out the development.(2) A consent authority cannot impose as a condition of the same development consent a condition under this section as well as a condition under section 94.(2A) A consent authority cannot impose a condition under this section in relation to development on land within a special contributions area without the approval of:(a) the Minister, or(b) a development corporation designated by the Minister to give approvals under this subsection.(3) Money required to be paid by a condition imposed under this section is to be applied towards the provision, extension or augmentation of public amenities or public services (or towards recouping the cost of their provision, extension or augmentation). The application of the money is subject to any relevant provisions of the contributions plan.(4) A condition imposed under this section is not invalid by reason only that there is no connection between the development the subject of the development consent and the object of expenditure of any money required to be paid by the condition.(5) The regulations may make provision for or with respect to levies under this section, including:(a) the means by which the proposed cost of carrying out development is to be estimated or determined, and(b) the maximum percentage of a levy.
94B Section 94 or 94A conditions subject to contributions plan
(1) A consent authority may impose a condition under section 94 or 94A only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division).(2) However, in the case of a consent authority other than a council:(a) the consent authority may impose a condition under section 94 or 94A even though it is not authorised (or of a kind allowed) by, or is not determined in accordance with, a contributions plan, but(b) the consent authority must, before imposing the condition, have regard to any contributions plan that applies to the whole or any part of the area in which development is to be carried out.(3) A condition under section 94 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction.(4) A condition under section 94A that is of a kind allowed by, and determined in accordance with, a contributions plan (or a direction of the Minister under this Division) may not be disallowed or amended by the Court on appeal.
(1) A condition may be imposed under section 94 or 94A for the benefit (or partly for the benefit) of an area that adjoins the local government area in which the development is to be carried out.(2) Any monetary contribution that is required to be paid under any such condition is to be apportioned among the relevant councils:(a) in accordance with any joint or other contributions plan approved by those councils, or(b) if provision is not made for the apportionment in any such plan—in accordance with the terms of the development consent for the development.(3) Any dispute between the councils concerned is to be referred to the Director-General and resolved in accordance with any direction given by the Director-General.
94CA Public service or public amenity may be provided outside NSW
A condition may, with the written approval of the Minister, be imposed under section 94 or 94A for the provision of a public amenity or public service on land in another State or Territory if the area in which the development the subject of the condition is to be carried out adjoins the other State or Territory.
94D Section 94 or 94A conditions imposed by Minister or Director-General in growth centres etc
(1) This section applies where the Minister or the Director-General, as the consent authority, imposes conditions under section 94 or 94A in relation to:(a) land within a growth centre, or(b) other land within one or more council areas.(2) This Division applies to land within a growth centre as if references in this Division to the area were references to the growth centre.(3) Any monetary contribution paid in accordance with a condition under section 94 or 94A:(a) must be paid by the Minister or Director-General to the corporation for the growth centre or to the councils of the areas concerned, and(b) must (together with any additional amount earned from its investment) be applied within a reasonable time for the purpose for which it was levied.(4) This section applies to the Minister as consent authority whether or not the Minister is the consent authority pursuant to section 88A.(5) (Repealed)
(1) The Minister may, generally or in any particular case or class of cases, direct a consent authority as to:(a) the public amenities and public services in relation to which a condition under section 94 may or may not be imposed, and(b) in the case of a condition under section 94 requiring the payment of a monetary contribution:(i) the means by which or the factors in relation to which the amount of the contribution may or may not be calculated or determined, and(ii) the maximum amount of any such contribution, and(c) the things that may or may not be accepted as a material public benefit for the purposes of a condition under section 94, and(d) the type or area of development in respect of which a condition under section 94A may be imposed and the maximum percentage of the levy, and(e) the use of monetary contributions or levies for purposes other than those for which they were paid, and(f) the preparation of joint contributions plans by two or more councils.(2) A consent authority to which a direction is given under this section must comply with the direction in accordance with its terms.(3) A consent authority must not, in granting development consent in relation to which a direction under this section applies, impose a condition that is not in accordance with the terms of the direction, despite the other provisions of this Division and despite the provisions of any contributions plan.
94EA Contributions plans—making
(1) A council, or two or more councils, may, subject to and in accordance with the regulations, prepare and approve a contributions plan for the purpose of imposing conditions under this Division (other than Subdivision 4).(2) If a contributions plan authorises the imposition of conditions under section 94A, the plan is to specify the type or area of development in respect of which a condition under section 94A may be imposed and is to preclude the imposition of a condition under section 94 in respect of that type or area of development.(2A) A contributions plan does not authorise the imposition of a condition under section 94 on a grant of development consent if the public amenities or public services to which that condition relates are, in whole or in part, infrastructure provided, or to be provided, in relation to the development out of contributions collected under Subdivision 4.(3) The regulations may make provision for or with respect to the preparation and approval of contributions plans, including the format, structure and subject-matter of plans.(4) A council is, as soon as practicable after approving a contributions plan, to provide the Minister with a copy of the plan.
94EAA Contributions plans—making, amendment or repeal by Minister
(1) The Minister may direct a council, in writing, to approve, amend or repeal a contributions plan in the time and manner specified in the direction.(2) The Minister may make, amend or repeal a contributions plan if:(a) a council fails to approve, amend or repeal the plan in accordance with a direction of the Minister under this section, or(b) a council consents in writing to the Minister making, amending or repealing the plan.The plan, the amended plan or the repeal of the plan has effect as if it had been approved, amended or repealed by the council.
(3) The Minister in making, amending or repealing a contributions plan under this section is not subject to the regulations.(4) A person cannot appeal to the Court under this Act in respect of:(a) the making, amending or repealing of a contributions plan by or at the direction of the Minister under this section, or(b) the reasonableness in the particular circumstances of a condition under section 94 that is determined in accordance with any such contributions plan,despite section 94B (3) or any other provision of this Act.
94EB Contributions plans—judicial notice, validity etc
(1) Judicial notice is to be taken of a contributions plan and of the date on which the plan came into effect.(2) It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of a contributions plan have been complied with and performed.(3) The validity of any procedure required to be followed in making or approving a contributions plan is not to be questioned in any legal proceedings except those commenced in the Court by any person within 3 months after the date on which the plan came into effect.(4) The amendment or repeal, whether in whole or in part, of a contributions plan does not affect the previous operation of the plan or anything duly done under the plan.
94EC Contributions plans—complying development
(1) In relation to an application made to an accredited certifier for a complying development certificate, a contributions plan:(a) is to specify whether or not the accredited certifier must, if a complying development certificate is issued, impose a condition under section 94 or 94A, and(b) can only authorise the imposition by an accredited certifier of a condition under section 94 that requires the payment of a monetary contribution, and(c) must specify the amount of the monetary contribution or levy that an accredited certifier must so impose or the precise method by which the amount is to be determined.(1A) The imposition of a condition by an accredited certifier as authorised by a contributions plan is subject to compliance with any directions given under section 94E (1) (a), (b) or (d) with which a council would be required to comply if issuing the complying development certificate concerned.(2) This section does not limit anything for which a contributions plan may make provision in relation to a consent authority.
Subdivision 4 Special infrastructure contributions
94ED Provision of infrastructure
(1) In this Subdivision, a reference to the provision of infrastructure includes a reference to:(a) the provision, extension and augmentation of (or the recoupment of the cost of providing, extending or augmenting) public amenities or public services, affordable housing and transport or other infrastructure relating to land, and(b) the funding of recurrent expenditure relating to the provision, extension and augmentation of public amenities or public services, affordable housing and transport or other infrastructure, and(c) the conservation or enhancement of the natural environment, and(d) the Minister, corporation, Department or Director-General doing any one or more of the following:but does not include a reference to water supply or sewerage services.(i) carrying out of any research or investigation,(ii) preparing any report, study or instrument,(iii) doing any other matter or thing in connection with the exercise of any statutory function under this Act,(2) Subject to section 94EE (2) (c), infrastructure may be regarded as being provided in relation to development whether or not the infrastructure is provided on land within a special contributions area or within New South Wales.
94EE Minister to determine development contributions
(1) The Minister is, subject to the regulations (if any), to determine the level and nature of development contributions to be imposed as conditions under this Subdivision for the provision of infrastructure in relation to a development or a class of development.(2) In determining the level and nature of development contributions:(a) the Minister is, as far as reasonably practicable, to make the contribution reasonable having regard to the cost of the provision of infrastructure in relation to the development or class of development, and(b) if the cost of that infrastructure exceeds $30 million—the Minister is to consult the Treasurer, and(c) the Minister is not to take into account infrastructure provided on land other than that within the relevant special contributions area, unless, in the opinion of the Minister, the provision of the infrastructure on such land arises as a result of the development or as a result of a class of development of which the development forms a part.(3) Despite subsection (2), the Minister may, if he or she sees fit, determine the level and nature of development contributions in the form of a levy of a percentage of the proposed cost of carrying out development or any class of development.(3A) The determination of the Minister is to identify what part (if any) of a development contribution, that is to be imposed as a condition under this Subdivision, is for the provision of infrastructure by a council or for any one or more of the matters set out in section 94ED (1) (d).(3B) Any part of a development contribution identified in accordance with subsection (3A):(a) is, for the purposes of Subdivision 5, taken not to be received by the consent authority under this Subdivision, and(b) is not to be taken into account in calculating the cost of infrastructure for the purposes of subsection (2) (b), and(c) is, if the part is identified as being for the provision of infrastructure by a council, to be provided to the council and is to be held and applied by the council in accordance with section 93E, and(d) is, if the part is identified as being for any one or more of the matters set out in section 94ED (1) (d), to be provided to the Department and is to be held and applied by the Department in accordance with section 93E.(4) In determining the level and nature of development contributions to be imposed as conditions under this Subdivision for development within a particular special contributions area (other than a growth centre), the Minister is to do one or more of the following:(a) consult with owners of land in the special contributions area and other relevant stakeholders,(b) publicly exhibit a proposal in relation to the level of development contributions and seek submissions within a reasonable time in relation to that proposal,(c) establish a panel that, in the Minister’s opinion, represents the interests of the various relevant stakeholders and consult with that panel.(5) The determination of the Minister:(a) is to contain reasons for the level and nature of the development contributions, and(b) is to be made publicly available by the Minister.(6) A person cannot appeal to the Court under this Act in respect of a determination of the Minister under this section.(7) Subsection (3A) does not limit any payments being made out of the Fund to a council or the Department under section 94EL (1) (a).
94EF Special infrastructure contributions
(1) The Minister may direct a consent authority, in relation to development or class of development on land within a special contributions area, to impose a condition (determined in accordance with section 94EE) on a grant of development consent in relation to that land.(2) If the Minister is the consent authority, the Minister may impose a condition referred to in subsection (1) without giving a direction under that subsection.(3) A consent authority to which a direction is given under this section must comply with the direction in accordance with its terms. If the consent authority fails to do so, the Minister may impose the condition, and it has effect as if it had been imposed by the consent authority.(4) A condition imposed under this section is in addition to any condition that the consent authority may impose under section 94 or 94A in relation to the development.(5) The consent authority may, subject to the consent of the Minister, accept:(a) the dedication of land in part or full satisfaction of a condition imposed in accordance with this section, or(b) the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with this section.(6) A person cannot appeal to the Court under this Act in respect of a direction of the Minister, or a condition imposed by a consent authority or the Minister, under this section.(7) A condition imposed by a consent authority or the Minister under this section cannot be modified without the approval of the Minister.
94EG Minister may make, amend or repeal special contributions areas
(1) The Minister may, by order published on the NSW legislation website, amend Schedule 5A for the purpose of:(a) creating a special contributions area, or(b) repealing a special contributions area, or(c) changing a special contributions area.(2) Any such order may contain savings and transitional provisions.(3) Any such order takes effect on the day that it is published on the NSW legislation website or such later date as may be specified in the order.(4) Before creating a special contributions area (other than a growth centre), the Minister is to consult with the peak industry organisations that the Minister considers to be relevant.
94EH Land contributed under this Subdivision
The Minister may direct a consent authority to sell all or part of any land it receives under this Subdivision or to transfer any such land to a public authority that is to provide, or has provided, infrastructure in relation to:(a) the development to which the land relates, or(b) the class of development to which that development belongs.
Subdivision 5 Establishment of Special Contributions Areas Infrastructure Fund
In this Subdivision:the Fund means the Special Contributions Areas Infrastructure Fund established under section 94EJ.
(1) There is to be established in the Special Deposits Account a fund called the Special Contributions Areas Infrastructure Fund.(2) The Fund is to be administered by the Director-General. The Director-General is to consult the Secretary of the Treasury in relation to the administration of the Fund.
The following is to be paid into the Fund:(a) monetary contributions received by a consent authority under Subdivision 4,(b) the proceeds of the sale of any land received by a consent authority under Subdivision 4,(c) any money appropriated by Parliament for the purposes of the Fund,(d) the proceeds of the investment of money in the Fund,(e) any other money required to be paid into the Fund by or under this or any other Act or the regulations under this Act.
(1) The following is to be paid from the Fund:(a) payments to public authorities for the provision of infrastructure in relation to development,(b) any money required to meet administrative expenses in relation to the Fund,(c) all other money directed or authorised to be paid from the Fund by this Act or by the regulations under this Act.(2) The assets of the Fund can only be applied for the purposes referred to in subsection (1).
94EM Investment of money in Fund
The money in the Fund may be invested:(a) in such manner as may be authorised by the Public Authorities (Financial Arrangements) Act 1987, or(b) if that Act does not confer power on the Department to invest the money, in any other manner approved by the Treasurer.
Division 6A Conditions requiring land or contributions for affordable housing
94F Conditions requiring land or contributions for affordable housing
(1) This section applies with respect to a development application for consent to carry out development within an area if a State environmental planning policy identifies that there is a need for affordable housing within the area and:(a) the consent authority is satisfied that the proposed development will or is likely to reduce the availability of affordable housing within the area, or(b) the consent authority is satisfied that the proposed development will create a need for affordable housing within the area, or(c) the proposed development is allowed only because of the initial zoning of a site, or the rezoning of a site, or(d) the regulations provide for this section to apply to the application.(2) Subject to subsection (3), the consent authority may grant consent to a development application to which this section applies subject to a condition requiring:(a) the dedication of part of the land, or other land of the applicant, free of cost to be used for the purpose of providing affordable housing, or(b) the payment of a monetary contribution to be used for the purpose of providing affordable housing,or both.(3) A condition may be imposed under this section only if:(a) the condition complies with all relevant requirements made by a State environmental planning policy with respect to the imposition of conditions under this section, and(b) the condition is authorised to be imposed by a local environmental plan, and is in accordance with a scheme for dedications or contributions set out in or adopted by such a plan, and(c) the condition requires a reasonable dedication or contribution, having regard to the following:(i) the extent of the need in the area for affordable housing,(ii) the scale of the proposed development,(iii) any other dedication or contribution required to be made by the applicant under this section or section 94.(4) A consent authority that proposes to impose a condition in accordance with this section must take into consideration any land or other sum of money that the applicant has previously dedicated free of cost, or previously paid, for the purpose of affordable housing within the area otherwise than as a condition of a consent.(5) Nothing in this section prevents the imposition on a development consent of other conditions relating to the provision, maintenance or retention of affordable housing. Such conditions may require, but are not restricted to, the imposition of covenants (including positive covenants) or the entering into of contractual or other arrangements.(6) A condition is not to be imposed under this section in relation to development that is within a special contributions area (within the meaning of Division 6).
94G Provision of affordable housing
(1) Land dedicated in accordance with a condition imposed under this Division must:(a) be made available by the consent authority for the purposes of affordable housing within a reasonable time, or(b) be transferred by the consent authority in accordance with any applicable direction under subsection (3).(2) A consent authority must:(a) hold any monetary contribution paid in accordance with a condition imposed under this Division (and any additional amount earned from its investment) for the purpose for which the payment was required and apply the money for the purposes of affordable housing in the area or an adjoining area within a reasonable time, or(b) pay the monetary contribution in accordance with any applicable direction under subsection (3).(3) The Minister may give a direction, that applies generally or in any particular case or class of cases, to a consent authority:(a) requiring it to transfer land to a person nominated by the Minister, if it imposes a condition under this Division requiring dedication of the land, or(b) requiring it to pay a monetary contribution to a person nominated by the Minister, if it imposes a condition under this Division requiring the payment of the monetary contribution.(4) A person nominated under this section by the Minister must:(a) make available any land transferred to the person under this Division for the purposes of affordable housing within a reasonable time, and(b) apply any monetary contribution paid to the person under this Division (and any additional amount earned from its investment) for the purposes of affordable housing in the area concerned or in an adjoining area within a reasonable time.
Division 7 Post-consent provisions
(1) A development consent lapses 5 years after the date from which it operates.(2) However, a consent authority may reduce that period of 5 years in granting development consent. This subsection does not apply to development consent granted to a staged development application under Division 2A for development that requires a subsequent development application and consent.(3) Such a reduction may not be made so as to cause:(a) a development consent to erect or demolish a building or to subdivide land to lapse within 2 years after the date from which the consent operates, or(b) a development consent of a kind prescribed by the regulations to lapse within the period prescribed by the regulations in relation to the consent.(4) Development consent for:(a) the erection of a building, or(b) the subdivision of land, or(c) the carrying out of a work,does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.(5) Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse.(6) Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 80 (3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority, within the period so specified.
95A Extension of lapsing period for 1 year
(1) If, in granting a development consent, the consent authority reduces the period after which the consent lapses to less than 5 years, the applicant or any other person entitled to act on the consent may apply to the consent authority, before the period expires, for an extension of 1 year.(2) The consent authority may grant the extension if satisfied that the applicant has shown good cause.(3) A person making an application under subsection (1) who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after it is made, may appeal to the Court, and the Court may determine the appeal.(4) An extension of 1 year granted under this section commences to run from the later of the following:(a) the date on which the consent would have lapsed but for the extension,(b) the date on which the consent authority granted the extension or, if the Court has allowed the extension in determining an appeal, the date on which the Court determined the appeal.(5) This section does not apply to complying development.
96 Modification of consents—generally
(1) Modifications involving minor error, misdescription or miscalculation
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5), (6) and (7) do not apply to such a modification.(1A) Modifications involving minimal environmental impact
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:(a) it is satisfied that the proposed modification is of minimal environmental impact, and(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and(c) it has notified the application in accordance with:(i) the regulations, if the regulations so require, or(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.Subsections (1), (2) and (5) do not apply to such a modification.
(2) Other modifications
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and(c) it has notified the application in accordance with:(i) the regulations, if the regulations so require, or(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.Subsections (1) and (1A) do not apply to such a modification.
(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.(5) Threatened species
Development consent of the kind referred to in section 79B (3), or in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995, is not to be modified unless:(a) in the case of development referred to in section 79B (3)—the requirements of section 79B (3)–(7) have been complied with in relation to the proposed modification as if the application for the proposed modification were an application for development consent, or(b) in the case of development in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995—the applicant has made an application for modification of the biobanking statement in relation to the proposal and a new biobanking statement has been issued or the consent authority is satisfied that the modification will have no impact on biodiversity values (within the meaning of that Act).(6) Appeals
An applicant who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after the application is made may appeal to the Court and the Court may determine the appeal.(6A) (Repealed)(7) Subsection (6) does not enable an appeal to be made against the determination of, or the failure to determine, an application to modify a development consent, being a development consent granted by the Court.(8) Modifications by the Court
The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A) (c) or subsection (2) (b) and (c) are to be exercised by the relevant consent authority and not the Court.
96AA Modification by consent authorities of consents granted by the Court
(1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if:(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and(b) it has notified the application in accordance with:(i) the regulations, if the regulations so require, and(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and(c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.(1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.(1B) Development consent of the kind referred to in section 79B (3), or in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995, is not to be modified unless:(a) in the case of development referred to in section 79B (3)—the requirements of section 79B (3)–(7) have been complied with in relation to the proposed modification as if the application for the proposed modification were an application for development consent, or(b) in the case of development in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995—the applicant has made an application for modification of the biobanking statement in relation to the proposal and a new biobanking statement has been issued or the consent authority is satisfied that the modification will have no impact on biodiversity values (within the meaning of that Act).(1C) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.(2) After determining an application for modification of a consent under this section, the consent authority must send a notice of its determination to each person who made a submission in respect of the application for modification.(3) An applicant who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after the application is made may appeal to the Court and the Court may determine the appeal.(4) A person who made a submission in respect of the application for modification and who is dissatisfied with the determination of the application by the consent authority may, in accordance with rules of court, apply to the Court for leave to appeal against the determination within 28 days after the date on which notice of the determination was given to the person and the Court may grant or refuse leave to appeal.
96A Revocation or modification of development consent
(1) If at any time it appears to:(a) the Director-General, having regard to the provisions of any proposed State environmental planning policy, or(b) a council (being the consent authority in relation to the development application referred to in this subsection), having regard to the provisions of any proposed local environmental plan,that any development for which consent under this Division is in force in relation to a development application should not be carried out or completed, or should not be carried out or completed except with modifications, the Director-General or council may, by instrument in writing, revoke or modify that consent.(2) This section applies to complying development for which a complying development certificate has been issued in the same way as it applies to development for which development consent has been granted and so applies to enable a council to revoke or modify a complying development certificate whether the certificate was issued by the council or by an accredited certifier.(3) Before revoking or modifying the consent, the Director-General or council must:(a) by notice in writing inform, in accordance with the regulations:(i) each person who in the Director-General’s or council’s opinion will be adversely affected by the revocation or modification of the consent, and(ii) such persons as may be prescribed by the regulations,of the intention to revoke or modify the consent, and(b) afford each such person the opportunity of appearing before the Director-General or council, or a person appointed by the Director-General or council, to show cause why the revocation or modification should not be effected.(4) The revocation or modification of a development consent takes effect, subject to this section, from the date on which the instrument referred to in subsection (1) is served on the owner of the land to which the consent applies.(5) Within 3 months after the date on which the revocation or modification of the consent takes effect, the applicant for the consent, or any other person entitled to rely on the consent, who is aggrieved by the revocation or modification may appeal to the Court, and the Court may determine the appeal.(6) The Court may determine the appeal by affirming, varying or cancelling the instrument of revocation or modification.(7) If a development consent is revoked or modified under this section, a person aggrieved by the revocation or modification is entitled to recover from:(a) the Government of New South Wales—if the Director-General is responsible for the issue of the instrument of revocation or modification, or(b) the council—if the council is responsible for the issue of that instrument,compensation for expenditure incurred pursuant to the consent during the period between the date on which the consent becomes effective and the date of service of the notice under subsection (3) which expenditure is rendered abortive by the revocation or modification of that consent.(8) The Director-General or council must, on or as soon as practicable after the date on which the instrument referred to in subsection (1) is served on the owner of the land referred to in subsection (4), cause a copy of the instrument to be sent to each person who is, in the Director-General’s or council’s opinion, likely to be disadvantaged by the revocation or modification of the consent.(9) This section does not apply to or in respect of a consent granted by the Court or by the Minister.
Division 8 Appeals and related matters
97 Appeal by an applicant—development applications
(1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant’s development application (including a determination on a review under section 82A) may appeal to the Court within 12 months after:(a) the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application, or(b) the date on which that application is taken to have been determined under section 82 (1).(2) An applicant who is dissatisfied with a decision that a consent authority, or a person specified by the consent authority, is not satisfied as to a matter, being a specified aspect of the development that is to be carried out to the satisfaction of the consent authority, or person, pursuant to a condition imposed under section 80A (2), may appeal to the Court within 12 months after:(a) the consent authority or person notifies the applicant of its decision, or(b) the date on which the applicant’s request is taken to have been determined under section 80A (3).(3) An applicant who is dissatisfied with a decision that a consent authority is not satisfied as to a matter, being a matter as to which it must be satisfied before a “deferred commencement” consent under section 80 (3) can operate, may appeal to the Court within 12 months after the consent authority notifies the applicant of its decision.(4) If an appeal has been made under this section relating to a development application for consent to carry out designated development, each objector to that application is to be given notice by the consent authority of that appeal and is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if he, she or it were a party to the appeal.(5) If:(a) an appeal has been made under this section relating to a development application, and(b) the application is one:that Minister, public authority or approval body must be given notice by the consent authority of that appeal and is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if he, she or it were a party to the appeal.(i) in relation to which the concurrence of a Minister or public authority is required under this Act, or(ii) for consent to carry out integrated development that involves an approval body (within the meaning of Division 5),(6) An appeal under this section relating to a development application for consent to carry out designated development in respect of which an objection has been made in accordance with the regulations must not be heard by the Court until after the expiration of the time within which an objector may appeal to the Court under section 98.
97B Costs payable if amended development application filed
(1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment).(2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal.(3) The regulations may provide for circumstances in which subsection (2) does not apply.(4) This section has effect despite the provisions of any other Act or law.
(1) An objector who is dissatisfied with the determination of a consent authority to grant consent to a development application for designated development (including designated development that is integrated development) either unconditionally or subject to conditions may, within 28 days after the date on which notice of the determination was given in accordance with the regulations, and in accordance with rules of court, appeal to the Court.(2) If an appeal has been made under subsection (1), the person who made the development application and the consent authority referred to in that subsection are to be given notice of that appeal, in accordance with rules of court, and are entitled to be heard at the hearing of the appeal as parties to the appeal.(3) If:(a) an appeal has been made under subsection (1) relating to a development application, and(b) the consent authority referred to in subsection (1) is given notice of an appeal under that subsection, and(c) the application is one:that Minister, public authority or approval body must be given notice of that appeal by the consent authority and is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if he, she or it were a party to the appeal.(i) in relation to which the concurrence of a Minister or public authority is required under this Act, or(ii) for consent to carry out integrated development that involves an approval body (within the meaning of Division 5),
98A Appeal concerning security
(1) An applicant who is dissatisfied with:(a) a decision of a consent authority with respect to the provision (otherwise than by the imposition of a condition of development consent) of security of a kind referred to in section 80A (6), or(b) the failure or refusal of the consent authority to release a security held by it,may appeal to the Court.Note. The right to appeal against the imposition of a condition of development consent is excluded from subsection (1) (a) so as not to duplicate the right of appeal conferred by section 97.(2) An appeal with respect to a decision referred to in subsection (1) (a) may be made within 12 months after the applicant received notice of the decision.(3) An appeal with respect to a failure or refusal referred to in subsection (1) (b) may be made:(a) except as provided by paragraph (b), within 6 months after the work to which the security relates has been completed, or(b) if the security is provided in respect of contingencies that may arise on or after completion of the work to which the security relates, not earlier than 6 months and not later than 12 months after the completion of the work.
99 Joint hearing of certain appeals
(1) If an appeal is made under section 97 with respect to a development application, the appeal is, as far as practicable, to be heard together with any appeals under section 98 made with respect to the application.(2) Without affecting subsection (1), if 2 or more appeals are made under section 98 with respect to the same development application, the appeals are, as far as practicable, to be heard together.(3) If 2 or more appeals are made under section 96A (5) with respect to the same notice referred to in section 96A, the appeals are, as far as practicable, to be heard together.
100 Register of consents and certificates
(1) A council must, in the prescribed form and manner (if any), keep a register of:(a) applications for development consent, and(b) the determination of applications for development consent (including the terms of development consents granted under this Part), and(c) the determination of applications for complying development certificates (including the terms of complying development certificates issued under this Part), and(d) decisions on appeal from any determination made under this Part.(2) The register is to be available for public inspection, without charge, at the office of the council during ordinary office hours.
101 Validity of development consents and complying development certificates
If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.
102 Non-compliance with certain provisions regarding State significant development
(1) This section applies to a development consent granted, or purporting to be granted, by the Minister, before or after the commencement of this section.(2) The only requirements of this Act that are mandatory in connection with the validity of a development consent to which subsection (1) applies are as follows:(a) A requirement that a development application to carry out designated development and its accompanying information be publicly exhibited for the minimum period of time.(b) A requirement that a development application to carry out development, being development, other than designated development, to which some or all of the provisions of sections 84, 85, 86, 87 (1) and 90, as in force immediately before the commencement of this section, applied by virtue of an environmental planning instrument, as referred to in section 30 (4), as then in force, be publicly exhibited for the minimum period of time.(c) A requirement that a development application to carry out advertised development and its accompanying information be publicly exhibited for the minimum period of time prescribed by the regulations.
103 Revocation or regrant of development consents after order of Court
(1) This section applies to a development consent granted, or purporting to be granted, by a consent authority, to which an order of suspension applies under section 25B of the Land and Environment Court Act 1979.(2) The consent authority may revoke a development consent to which this section applies, whether or not the terms imposed by the Court under section 25B of the Land and Environment Court Act 1979 have been complied with.(3) However, if the terms imposed by the Court have been substantially complied with, the consent authority may revoke the development consent to which this section applies and grant a new development consent with such alterations to the revoked consent as the consent authority thinks appropriate having regard to the terms themselves and to any matters arising in the course of complying with the terms. Such a grant of a development consent is referred to as a regrant of the consent.(4) No preliminary steps need be taken with regard to the regrant of a development consent under this section, other than those that are required to secure compliance with those terms.(5) Section 81 and such other provisions of this Act as may be prescribed by the regulations apply to development consents regranted under this section.
104 Appeals and other provisions relating to development consents after order of Court
(1) A development consent declared to be valid under section 25C of the Land and Environment Court Act 1979:(a) is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and(b) is operative as from the date the development consent originally took effect or purported to take effect, unless the Court otherwise orders.(2) A development consent declared under section 25C of the Land and Environment Court Act 1979 to be validly regranted:(a) is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and(b) takes effect from the date of the declaration or another date specified by the Court.
104A Voluntary surrender of development consent
(1) A development consent may be surrendered, subject to and in accordance with the regulations, by any person entitled to act on the consent.(2) A development consent may be surrendered under this section even if, on the making of an appeal under section 97 or 98, the consent has ceased to be, or does not become, effective as referred to in section 83 (2).
(1) In addition to any other matters for or with respect to which regulations may be made for the purposes of this Part, the regulations may make provision for or with respect to the following:(a) any matter that is necessary or convenient to be done before making a development application,(b) the persons who may make development applications,(c) the making, consideration and determination of development applications that are made by or on behalf of the Crown, public authorities and persons prescribed by the regulations,(d) the form of development applications,(e) the documents and information required to accompany development applications, including documents that will assist the consent authority in assessing the environmental effects of development,(f) the fees for development applications,(g) the notification and advertising of development applications (and proposed development),(h) the form and contents of notices of development applications, the manner of giving notices and the persons to whom notices are to be given,(i) the requirement for consultation with, or obtaining the concurrence of, the Director-General, public authorities and other persons concerning proposed development,(j) the preparation, contents, form and submission of environmental impact statements and statements of environmental effects,(k) the documents and information required to accompany statements of environmental effects and environmental impact statements,(l) the making of submissions, by way of objection or otherwise, with respect to proposed development and the consideration of submissions,(m) the holding of inquiries into proposed development,(n) procedures concerning complying development, advertised development and designated development,(n1) authorising a consent authority or council to impose a fee with respect to the lodging of any complying development certificate with it, whether pursuant to a requirement made by or under this Act or otherwise,(o) procedures concerning integrated development,(p) notifications and notices for the purposes of sections 81A and 86,(p1) procedural matters in relation to the review, under section 82A, of determinations,(q) the modification of development consents, including the fees for applications for modification,(r) the periods within which specified aspects of the environmental planning control process must be completed and the variation of those periods,(s) the effect of a failure to comply with any requirement of the regulations,(t) the notification of applicants and persons making submissions (including by way of objection) of the determination of development applications, reasons for the determinations and any rights of appeal.(2) The regulations may provide that an applicant who is not entitled to copyright in a document forming part of or accompanying the development application or the application for a complying development certificate is taken to have indemnified all persons using the application and document in accordance with this Act against any claim or action in respect of breach of copyright.(3) The regulations may provide for the accreditation of building products and systems, including the following:(a) applications for accreditation,(b) the determination of applications for accreditation,(c) revocation of accreditation,(d) extension or renewal of accreditation,(e) the adoption, application or incorporation (whether with or without modification) of a scheme of accreditation (however described) of building products and systems,(f) the notification of consent authorities of information concerning accreditation (including accreditation referred to in paragraph (e)).(4) The regulations may provide for the adoption and application of the Building Code of Australia.(5) The regulations may make provision for or with respect to the remission of part of the fees for development applications to the Director-General for payment, in accordance with subsection (6), into the Building Professionals Board Fund established under the Building Professionals Act 2005.(6) The Director-General is to pay into the Building Professionals Board Fund established under the Building Professionals Act 2005 such part of the fees for development applications remitted to the Director-General:(a) as may be provided for in the regulations, or(b) subject to the regulations (if any), as the Minister directs to be paid into the Fund.
105A Transitional—amendment to list of vulnerable species
(1) An amendment to the list of vulnerable species does not apply in respect of any development application made under section 78A before the amendment was made.(2) This section ceases to apply in respect of a development application if the application has not been determined by the consent authority at the end of the period of 12 months after the date the application was made under section 78A.(3) In this section:list of vulnerable species means Part 1 of Schedule 2 to the Threatened Species Conservation Act 1995 or, subject to section 5C, Schedule 5 to the Fisheries Management Act 1994.
106 Definition of “existing use”
In this Division, existing use means:(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, and(b) the use of a building, work or land:(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.
107 Continuance of and limitations on existing use
(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.(2) Nothing in subsection (1) authorises:(a) any alteration or extension to or rebuilding of a building or work, or(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or(e) the continuance of the use therein mentioned where that use is abandoned.(3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.
108 Regulations respecting existing use
(1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to:(a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and(b) the change of an existing use to another use, and(c) the enlargement or expansion or intensification of an existing use, and(d) in the case of an existing use for the purpose of a place of public entertainment, the conditions to which such a use is to be subject.(2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.(3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.(4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 89 to a development application for consent to carry out prohibited development.
109 Continuance of and limitations on other lawful uses
(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.(2) Nothing in subsection (1) authorises:(a) any alteration or extension to or rebuilding of a building or work, or(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or(e) the continuance of the use therein mentioned where that use is abandoned.(3) Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.(4) The regulations may make provision for or with respect to the conditions on which the use of a building for the purpose of a place of public entertainment may be continued pursuant to this section.
109A Uses unlawfully commenced
(1) The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except:(a) the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor, or(b) the granting of development consent to that use.(2) The continuation of a use of a building, work or land that was unlawfully commenced is, and is taken always to have been, development of the land within the meaning of and for the purposes of any deemed instrument referred to in Division 2 of Part 21 of Schedule 6 applying, or which at any time applied, to or in respect of the building, work or land.
109B Saving of effect of existing consents
(1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.(2) This section:(a) applies to consents lawfully granted before or after the commencement of this Act, and(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and(c) has effect despite anything to the contrary in section 107 or 109.(3) This section is taken to have commenced on the commencement of this Act.