Division 3Division 3 Applications for approval
Subdivision 1 Applications generally
(1) This Subdivision applies to an application for approval in respect of the doing or carrying out of an act, matter or thing referred to in section 57 (1).(2) This Subdivision applies in addition to, and not in derogation from, the provisions of any other Act or statutory instrument under which an application for approval in respect of the doing or carrying out of an act, matter or thing referred to in section 57 (1) is required to be made.
An application for approval may be made by:(a) the owner of the item or land the subject of the application, or(b) any person with the consent in writing of that owner, or(c) if the item or land is situated on or comprises Crown land as defined in the Crown Lands Act 1989, the lawful occupier of the Crown land.
An application for approval shall be made to the approval body in the approved form and shall be accompanied by such fee as may be prescribed.
61 Public notice of certain applications
(1) Where an application for approval is made in respect of an item of the environmental heritage and that application, if approved, would, in the opinion of the approval body, materially affect the significance of that item as an item of the environmental heritage, the approval body shall cause public notice of that application to be given in a daily newspaper circulating throughout the State.(1A) Public notice is not to be given under this section of an application for approval in respect of integrated development of which public notice has been given under the Environmental Planning and Assessment Act 1979.(2) A notice referred to in subsection (1) shall contain a statement to the effect that the application for approval referred to in that notice and any plans, specifications or similar documents lodged in connection with that application and in the custody of the approval body may be inspected at the office of the approval body by any person during ordinary office hours within a period of 21 days after the day on which that notice is published in the newspaper in accordance with subsection (1).(3) During the period specified in subsection (2), any person may inspect the application and any documents referred to in that subsection which have been lodged in connection with that application at the office of the approval body during ordinary office hours and make representations in writing to the approval body with respect to that application.(4) The approval body shall not determine the application until the expiration of the period specified in subsection (2).
In determining an application for approval in respect of an item or land, the approval body shall take into consideration:(a) the extent to which that application, if approved, would affect the significance of any item as an item of the environmental heritage,(b) the representations, if any, made with respect to that application under section 61 (3),(c) such matters relating to the conservation of that item or land as to it seem relevant, and(c1) any applicable conservation management plan (within the meaning of section 38A) endorsed by the Heritage Council, and(d) such other matters as to it seem relevant.
63 Determination of application
(1) Except as provided by subsection (2), the approval body may determine an application for approval by granting approval to that application, either unconditionally or subject to conditions, or by refusing approval.(1A) The determination of an application for approval in relation to integrated development is subject to Division 5 of Part 4 of the Environmental Planning and Assessment Act 1979.(2) Where:(a) an application for approval is made to demolish the whole of a building or work, or(b) an application for approval is made which would, if it were approved, necessitate the demolition of the whole of a building or work,the approval body shall determine that application by refusing approval.(3) Nothing in subsection (2) prevents the approval body from approving an application referred to in that subsection if:(a) it is of the opinion that the building or work constitutes a danger to the users or occupiers of that building or work, the public or a section of the public, or(b) it is a condition of the approval that the building or work be relocated on other land, or(c) the building or work is situated (whether wholly or partly) in a place or precinct that is an item of State heritage significance, but is not itself such an item, and the approval body is of the opinion that the demolition of the whole of the building or work will not have a materially detrimental effect on the heritage significance of the place or precinct.(4) Without limiting or restricting the power of the approval body to impose conditions under subsection (1), it may, in granting approval to an application for approval, impose, as a condition of its approval, a condition:(a) that the applicant give security in such form and such amount as is determined by the approval body having regard to the nature and extent of the work referred to in the approval to ensure the satisfactory completion of that work, and(b) that where the approval is to the demolition, in whole or in part, of a building or work, such measures as are specified in the approval be taken in the interests of public safety and convenience with respect to the demolition.
63A Deferred commencement approvals
(1) An approval may be granted subject to a condition that it is not to operate until the applicant for the approval satisfies the approval body as to any matter specified in the condition (a deferred commencement approval).(2) Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.(3) A deferred commencement approval must be clearly identified as a deferred commencement approval (whether by the use of that expression or by reference to this section or otherwise).(4) A deferred commencement approval must clearly distinguish conditions concerning matters as to which the approval body must be satisfied before the approval can operate from any other conditions.(5) An approval body may specify the period within which the applicant must produce evidence to the approval body sufficient enough to enable it to be satisfied as to those matters.(6) The applicant may produce evidence to the approval body sufficient to enable it to be satisfied as to those matters and, if the approval body has specified a period for the purpose, the evidence must be produced within that period.(7) If the applicant produces evidence in accordance with this section, the approval body must notify the applicant whether or not it is satisfied as to the relevant matters.(8) If the approval body has not notified the applicant within the period of 28 days after the applicant’s evidence is produced to it, the approval body is, for the purposes only of sections 70 and 70A, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires.
63B Partial and conditional approvals
(1) An approval may be granted:(a) for the doing or carrying out of the act, matter or thing for which the approval is sought, or(b) for the doing or carrying out of that act, matter or thing, except for a specified part or aspect of that act, matter or thing, or(c) for the doing or carrying out of a specified part or aspect of that act, matter or thing.(2) An approval referred to in subsection (1) may be granted subject to a condition that:(a) the act, matter or thing for which the approval is sought, or(b) the specified part or aspect of that act, matter or thing, or(c) any thing associated with that act, matter or thing or the doing or carrying out of that act, matter or thing,must be the subject of another approval.
(1) The approval body shall give notice in writing of its determination of an application for approval to the applicant.(2) Where the approval body determines an application for approval by granting approval subject to conditions or by refusing approval, the notice shall:(a) indicate the reasons for the determination, and(b) except in relation to the determination of an application referred to in section 63 (2) which is required to be determined by refusing approval, notify the applicant that he or she has a right of appeal under this Act against the determination.
65 Effect of failure to make determination
(1) Where the approval body has not determined an application for approval (other than an application for approval in respect of integrated development) within a period of 40 days, or, where public notice of that application has been given under section 61, within a period of 60 days, after service of that application on it, it shall, for the purposes only of section 70, be deemed to have determined that application by refusing approval.(2) Nothing in subsection (1) prevents the approval body from determining an application after the expiration of the period referred to in subsection (1) in relation to that application.(3) The determination of an application as referred to in subsection (2) shall not, where an appeal in respect of that application has been made under section 70, prejudice or affect the making, continuance or determination of that appeal.
(1) On application in the approved form by any person entitled to act on an approval, the approval body may modify the approval:(a) so as to vary any aspect of the original approval, but only if it is satisfied that the act, matter or thing authorised by the modified approval is substantially the same as the act, matter or thing authorised by the original approval, or(b) so as to correct a minor error, misdescription or miscalculation.(2) The provisions of sections 61, 62, 64 and 65 apply to an application under subsection (1) (a) in the same way as they apply to an application for an approval, but do not apply to or in respect of an application under subsection (1) (b).(3) For the purposes of this section:(a) the Minister is taken to be the approval body in relation to an approval granted by the Minister as a result of an appeal under Division 4, and(b) the Court is taken to be the approval body in relation to an approval granted by the Court as a result of an appeal under Division 4,but, in either case, the application for modification of the approval is to be lodged not with the Minister or Court but with the approval body to whom the application for original approval was made.(4) Modification of an approval under this section is not to be construed as the granting of an approval, but a reference in this or any other Act to an approval includes a reference to the modified approval.
Subdivision 2 Prescribed applications
This Subdivision prevails the extent of any inconsistency between this Subdivision and the Environmental Planning and Assessment Act 1979 (Part 3A and Division 5 of Part 4 excepted), any environmental planning instrument in force under that Act, the Local Government Act 1993, any instrument made under that Act, the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.
67 Order of giving of approvals
An approval given by a consent authority to a prescribed application before the Heritage Council’s determination of the application has been notified to the consent authority is void.
An approval given by a consent authority to a prescribed application is, to the extent of any inconsistency with the Heritage Council’s determination of the application, void.
69 Liability of consent authorities
Nothing in this Subdivision affects the liability of a consent authority in respect of an approval granted by it.