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) ceases to have effect in relation to land if the land becomes 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) Two types of development that need consent
Development that may not be carried out except with development consent comprises 2 types, namely:(a) local development (which includes complying development), and(b) State significant development.(4) Local development
Local development is development that is described in subsection (1) and that is not State significant development.(5) Complying development
An environmental planning instrument may provide that local development that can be addressed by specified predetermined development standards is complying development.(6) A provision under subsection (5) cannot be made:(a) if the development is State significant development, or(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) ceases to have effect in relation to development or land if the development or land becomes development or land to which paragraph (a)–(g) applies.
Note. Further provisions concerning complying development are found in Division 3 of this Part.(7) State significant development
State significant development is:(a) development:(i) that is declared by a State environmental planning policy or a regional environmental plan to be State significant development, and(ii) that may be carried out with development consent, or(b) particular development, or a particular class of development:(i) that, under an environmental planning instrument, may be carried out with development consent, and(ii) that, in the opinion of the Minister, is of State or regional environmental planning significance, and(iii) that is declared by the Minister, by notice in the Gazette, to be State significant development, or(c) development that is proposed to be carried out in accordance with a development application that the Minister has directed, under section 88A, to be referred to the Minister for determination, or(d) prohibited development in respect of which a direction by the Minister under section 89 is in force.(8) If:(a) a project comprises development part of which is State significant development, all other development comprised in the project is taken to be State significant development, and(b) but for this provision, part of State significant development would be subject to Part 5, this Part applies to the exclusion of Part 5 and the development may be carried out with development consent, and(c) but for this provision, part of State significant development would be prohibited, the development may be carried out with development consent.(9) The Minister is the consent authority for State significant development.
76B Development that is prohibited
If:(a) an environmental planning instrument provides that 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) is local development (including complying development) or State significant development, and(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, 2 or 3 of Part A
paragraph 1–6 of Part B
paragraph 1–5 of Part C
paragraph 1 of Part E
paragraph 1–6, 8, 9 or 10 of Part F.
Note. The relevant approvals under the Local Government Act 1993 are:Structures or places of public entertainmentInstalling a manufactured home, moveable dwelling or associated structure on landInstalling a temporary structure on land
Using a building or temporary structure as a place of public entertainment or permitting its use as a place of public entertainment
Water supply, sewerage and stormwater drainage workCarrying out water supply workDrawing water from a council water supply or a standpipe or selling water so drawn
Installing, altering, disconnecting or removing a meter connected to a service pipe
Carrying out sewerage work
Carrying out stormwater drainage work
Connecting a private drain or sewer with a public drain or sewer under the control of a council or with a drain or sewer which connects with such a public drain or sewer
Management of wasteFor fee or reward, transporting waste over or under a public placePlacing waste in a public place
Placing a waste storage container in a public place
Disposing of waste into a sewer of the council
Installing, constructing or altering a waste treatment device or a human waste storage facility or a drain connected to any such device or facility
Public roadsSwinging or hoisting goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footwayOther activitiesOperating a public car parkOperating a caravan park or camping ground
Operating a manufactured home estate
Installing a domestic oil or solid fuel heating appliance, other than a portable appliance
Installing or operating amusement devices (within the meaning of the Construction Safety Act 1912)
Installing or operating amusement devices prescribed by the regulations under the Local Government Act 1993 in premises
Operating an undertaker’s business
Operating a mortuary
Carrying out an activity prescribed by the regulations under the Local Government Act 1993 or an activity of a class or description so prescribed
(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.(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.(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 the Director-General proposes to make, or any advice that the 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 (as described by section 6 (2) of the Protection of the Environment Administration Act 1991),(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 environmental planning instrument).
(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).
(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 draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority, and(iii) any development control plan, 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.(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 component, process or design relating to the development is unsatisfactory if the component, process or design is accredited 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) Staged development
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) A development consent referred to in subsection (4) may be granted subject to a condition that the development or the specified part or aspect of the development, or any thing associated with the development or the carrying out of the development, must be the subject of another development consent.(6) Restrictions on determination of development applications where Commission of Inquiry is held concerning environmental aspects of proposed development
A consent authority that has received notice that the Minister has directed that an inquiry be held, in accordance with section 119, 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 inquiry has been held, and(ii) the consent authority has considered the findings and recommendations of the Commission of Inquiry 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 directed that an inquiry be held by a Commission of Inquiry in relation to any proposed designated development the subject of a development application, the Minister is to determine the application after the inquiry has been held and the Minister has considered the findings and recommendations of the Commission of Inquiry.(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 are taken to form part of the relevant development consent (other than for the purposes of section 96).(13) Classification of buildings
A development consent for the erection of a building must identify the classification of the building in accordance with the Building Code of Australia.(14) A development consent 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 development consent under this Division replaces the statement of classification formerly issued under the regulations under the Local Government Act 1993.
(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 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.(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:(i) the consent authority, or(ii) an accredited certifier, and(b) the person having the benefit of the development consent:(i) has appointed a principal certifying authority, and(ii) has notified the consent authority and the council (if the council is not the consent authority) of the appointment, and(c) the person having the benefit of the development consent has given at least 2 days’ notice to 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:(i) the consent authority, or(ii) an accredited certifier, and(b) the person having the benefit of the development consent:(i) has appointed a principal certifying authority, and(ii) has notified the consent authority and the council (if the council is not the consent authority) of the appointment, and(c) the person having the benefit of the development consent has given at least 2 days’ notice to 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.
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.Note. This section does not apply to State significant development because it only applies if the consent authority is a council.(2) The request for a review must be made within 28 days after the date on which the applicant received notice, given in accordance with the regulations, of the determination of the application.(3) The prescribed fee must be paid in connection with a request for a review.(4) The council may review the determination and, as a consequence of its review, 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 an inquiry by a Commission of Inquiry—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 3 Special procedure for complying development
Note. This Division applies to development that is declared by an environmental planning instrument to be complying development which means that the whole of the development is subject to specified development standards.
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.(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) Public notification
An application for a complying development certificate is to be publicly notified in accordance with a development control plan if the development control plan requires the public notification of the complying development.(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 an accredited certifier must not refuse to issue a complying development certificate on the ground that any component, process or design relating to the development is unsatisfactory if the component, process or design is accredited 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 7 days (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 the council or accredited certifier is satisfied that 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.(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:(i) has appointed a principal certifying authority, and(ii) has notified the council of the appointment, and(b) the person having the benefit of the complying development certificate has given at least 2 days’ notice to 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:(i) has appointed a principal certifying authority, and(ii) has notified the council of the appointment, and(b) the person having the benefit of the complying development certificate has given at least 2 days’ notice to the council of the person’s intention to commence the subdivision work.
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.
Division 4 Additional procedures concerning State significant development
88 Application of this Division
(1) This Division applies to State significant development.(2) Division 2 applies to the determination of a development application under this Division, but in the event of any inconsistency between this Division and Division 2, this Division prevails to the extent of the inconsistency.
88A Development applications directed to be referred to the Minister for determination
(1) The Minister may direct a council to refer a particular development application made to it for determination by the Minister if, having regard to matters that in the Minister’s opinion are of significance for State or regional environmental planning, the Minister considers it is expedient in the public interest to do so.(2) On giving the direction:(a) the Minister becomes the consent authority for the development application to the exclusion of the council, except for such functions as the Minister’s direction specifies the council is to perform in relation to the development application, and(b) the council must deliver the development application to the Minister within 7 days after receiving the Minister’s direction, and(c) if the development application is being advertised, the advertising is to be completed as if the direction had not been given.(3) The council must perform the functions specified in the Minister’s direction as referred to in subsection (2) (a) in accordance with the appropriate requirements.(4) If the Minister’s direction is given during or after any period for which the development application is or was being advertised, the council must, at the end of that period, give written notice to each person who made a submission concerning the development application of their rights in the event that the Minister directs, under subsection (5), that a Commission of Inquiry be held.(5) If the Minister directs that a Commission of Inquiry be held in accordance with section 119:(a) the council, the applicant, an approval body (within the meaning of Division 5) and any person who made a submission concerning the development application are entitled to appear and be heard at the Commission of Inquiry, and(b) the Minister must consider the findings and recommendations of the Commission of Inquiry before determining the application.
89 Carrying out of prohibited development
(1) The Minister may direct in writing, that specified prohibited development on specified land may be the subject of a development application for determination by the Minister if, having regard to matters that in the Minister’s opinion are of significance for State or regional environmental planning, the Minister considers it is expedient in the public interest to do so.(2) On giving the direction:(a) a person may make a development application to the Minister as consent authority for consent to carry out the prohibited development, and(b) the Minister may determine the development application, and(c) if the development application is determined by granting consent, a person may carry out the development,despite any other provision of this Act or an environmental planning instrument.(3) The council may request that a Commission of Inquiry be held into the development application before it is determined by the Minister. If the council makes the request, the Minister must direct that such an inquiry be held in accordance with section 119.(4) If a Commission of Inquiry is held:(a) the council, the applicant, an approval body and any person who made a submission concerning the development application are entitled to appear and be heard at the Commission of Inquiry, and(b) the Minister must consider the findings and recommendations of the Commission of Inquiry before determining the application.
89A Application of sections 82, 97 and 98 to State significant development
(1) Section 82 does not apply to or in respect of a development application for State significant development for which a Commission of Inquiry has been held.(2) Sections 97 and 98 do not apply to the determination of a development application for State significant development that has been the subject of a Commission of Inquiry.
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 to which Part 5A applies.
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 in any waters
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 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
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
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.
Part 3A
permit under Part 3A
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 10
licence to construct and use a work, and to take and use water, if any, conserved or obtained by the work, and to dispose of the water for the use of occupiers of land
s 13A
licence to construct a supply work and to take and use water obtained thereby
s 18F
permit to construct and use a work, and to take and use water, if any, conserved or obtained by the work, and to dispose of the water for the use of occupiers of land for any purpose other than irrigation
s 20B
authority to take water from a river or lake for the purposes of a joint water supply scheme
s 20CA
authority to construct a supply work and to take and use water conserved or obtained thereby
s 20L
group licence
s 116
licence to commence sinking a bore or to enlarge, deepen or alter a bore
Part 8
approval to construct a controlled work
(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 Local development that is integrated development
(1) This section applies to the determination of a development application for local 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.
92 State significant development that is integrated development
(1) This section applies to the determination of a development application for State significant development that is integrated development.(2) Before granting development consent to an application for consent to carry out the development, the Minister 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 Minister to obtain the general terms of any such approval if the Minister determines to refuse to grant development consent.(3) For the purposes of this Part, the Minister 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 Minister that:(a) it will not grant an approval that is required in order for the development to be lawfully carried out, or(b) it will grant the approval but subject to general terms that, in the Minister’s opinion, are inappropriate,and a resolution of the matter cannot be agreed between the approval body and the Minister, the Minister must submit the dispute to the Premier for settlement under section 121.(5) For the purpose of the application of section 121 to any such dispute, the Minister and the approval body are taken to be public authorities.(6) If the approval body fails to inform the Minister, in accordance with the regulations, whether or not it will grant the approval, or of the general terms of any approval proposed to be granted by it:(a) the Minister may determine the development application, and(b) if the Minister 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,(7) If a development application is determined, whether or not by the granting of development consent, the Minister must notify all relevant approval bodies of the determination.
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 Conditions requiring contributions towards public amenities and services
94 Payment towards provision or improvement of amenities or services
(1) Subject to subsection (2), if a consent authority is satisfied that a development, the subject of a development application or of an application for a complying development certificate, 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 consent to that application 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) is to be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services mentioned in that subsection.(3) Subject to subsection (4), 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, the subject of a development application or of an application for a complying development certificate, will, if carried out, benefit from the provision of those public amenities or public services,the consent authority may grant consent to the application subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services.(4) A condition referred to in subsection (3) is, subject to any direction of the Minister under section 94E (1), to be imposed only to require a reasonable contribution towards recoupment of the cost referred to in subsection (3).(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) The consent authority is to hold any monetary contribution paid in accordance with a condition referred to in subsection (1) (and any additional amount earned from its investment) for the purpose for which the payment was required and apply the money towards providing public amenities or public services or both within a reasonable time and in such a manner as will meet the increased demand for those amenities or services or both.(7) The consent authority is to apply any monetary contribution paid in accordance with a condition referred to in subsection (3), if the whole or any part of the cost incurred in providing the public amenities or public services with respect to which the contribution is paid remains unpaid, towards repayment of that cost.(8) Land dedicated in accordance with a condition imposed under subsection (1) or in part or full satisfaction of a condition imposed under subsection (3) is to be made available by the consent authority for the purpose of providing public amenities or public services or both within a reasonable time.(9) 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 or other sum of money that the applicant has elsewhere dedicated free of cost within the area or previously paid to the consent authority other than as a condition of the grant of consent under this Act.(10) If:(a) a condition imposed under subsection (1) or (3) in relation to development the subject of a development application 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, notwithstanding 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.(11) A council may impose a condition referred to in this section only if it is of a kind allowed by, and is determined in accordance with, a contributions plan approved under section 94B.(12) A condition of a kind allowed by a contributions plan may be disallowed or amended by the Court on appeal because it is unreasonable, even if it was determined in accordance with the plan.(13) This section does not apply to public amenities or public services comprising water supply or sewerage works.
94A Section 94 conditions imposed by the Minister or Director-General
(1) The Minister or the Director-General, as the consent authority determining a development application, may impose conditions under this Division if the application relates to:(a) land within a growth centre, or(b) other land within a single area.(2) This Division, as modified by this section, applies to the Minister or the Director-General determining such a development application as consent authority.(3) This Division applies to a development application relating to land within a growth centre as if references in this Division to the area were references to the growth centre.(4) Before imposing any condition under this Division, the Minister or the Director-General must have regard to any contributions plan approved under section 94B that applies to the whole or any part of the growth centre or area in which the relevant land is situated.(5) The Minister or the Director-General may impose a condition under this Division even though it is not of a kind allowed by, or is not in accordance with, a contributions plan.(6) Any monetary contribution paid in accordance with a condition under this Division imposed by the Minister or the Director-General:(a) must be paid by the Minister or Director-General to the corporation for the growth centre or the council of the area 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.(7) This section applies to the Minister as consent authority whether or not the Minister is consent authority pursuant to section 88A.(8) In this section, growth centre means:(a) a growth centre, within the meaning of the Growth Centres (Development Corporations) Act 1974, or(b) a designated area, within the meaning of the Albury-Wodonga Development Act 1974.
94B Contributions plans—making
(1) A council may, subject to and in accordance with the regulations, prepare and approve a contributions plan for the purpose of imposing conditions referred to in this Division.(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.
94C 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) 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 of the date on which the plan came into effect.(3) 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.
94D 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 of the kind referred to in this Division, and(b) can only authorise the imposition of a condition by an accredited certifier that requires the payment of a monetary contribution, and(c) if the contributions plan authorises the imposition of a condition by an accredited certifier that requires the payment of a monetary contribution, must specify the amount of the monetary contribution or the precise method by which the amount of the contribution is to be determined.(2) This section does not limit anything for which a contributions plan may make provision in relation to a consent authority.
94E Directions by the Minister
(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 this Division may or may not be imposed, and(b) in the case of a condition 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 which may or may not be accepted as a material public benefit.(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 consent to a development application 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.
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 regional environmental plan or 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.
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:(a) 5 years after the date from which it operates, except as provided by paragraph (b), or(b) in the case of a development consent that is subject to a condition under section 80 (5), 5 years after the date from which the initial development consent operates, or 2 years after the date from which a later or the latest development consent granted in accordance with the condition operates, whichever is the longer.(2) A consent authority, in granting development consent, may vary either or both of the periods referred to in subsection (1), despite that subsection.(3) Such a variation 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.
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, except where the application is made in respect of a consent granted by the Minister under section 88A or 89, 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.
(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), (6A) 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) under this section, 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 under section 72 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) under this section, 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 under section 72 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) Modification of a development consent in accordance with this section is not to be construed as the granting of development consent under this Part but a reference in this or any other Act to a development consent is a reference to the development consent so modified.(5) Threatened species
Development consent of the kind referred to in section 79B (3) is not to be modified unless the requirements of section 79B (3)–(7) have been complied with in relation to the proposed modification as if the proposed modification were an application for development consent.(6) Appeals
Except in the case of State significant development, 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) In the case of State significant development, 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 unless the consent for the State significant development that was originally granted was granted following the holding of an inquiry by a Commission of Inquiry. The Court may determine any such appeal.(7) Subsection (6) or (6A) 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.
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 draft State environmental planning policy or draft regional environmental plan, 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 draft 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’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’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.
(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.
(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 form of statements of environmental effects and environmental impact statements,(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,(o) procedures concerning integrated development,(p) notifications and notices for the purposes of sections 81A and 86,(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 components, processes and designs, 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 acceptance, status and effect of accreditation granted under schemes other than that provided for in the regulations,(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.
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.(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.
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 environmental planning instrument 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.