Environmental Planning and Assessment Act 1979 No 203
Current version for 19 November 2014 to date (accessed 20 December 2014 at 19:00)
Part 4Division 2Section 79B

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.
(2A) State significant development—exclusion
This section does not apply to State significant development unless the requirement of an environmental planning instrument for consultation or concurrence specifies that it applies to State significant development.
(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 the Department of Environment, Climate Change and Water or, if a Minister is the consent authority, unless the Minister has consulted with the Minister administering the Threatened Species Conservation Act 1995.
Note. The development is taken not to significantly affect threatened species, populations or ecological communities, or their habitats if:
(a)  the development is to be carried out on biodiversity certified land (within the meaning of Part 7AA of the Threatened Species Conservation Act 1995), or
(b)  a biobanking statement has been issued in respect of the development under Part 7A of 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 the Department of Environment, Climate Change and Water for the purposes of that subsection, or
(b)  review and amend any recommendations that that Director-General proposes to make, or any advice that that Director-General proposes to offer, for the purposes of that subsection.
(5)  In deciding whether or not concurrence should be granted under subsection (3), the Director-General of the Department of Environment, Climate Change and Water or the Minister administering the Threatened Species Conservation Act 1995 must take the following matters into consideration:
(a)  any species impact statement that accompanied the development application,
(b)  any assessment report prepared by the consent authority,
(c)  any submissions received concerning the development application,
(d)  any relevant recovery plan or threat abatement plan,
(e)  whether the development proposed is likely to reduce the long-term viability of the species, population or ecological community in the region,
(f)  whether the development is likely to accelerate the extinction of the species, population or ecological community or place it at risk of extinction,
(g)  the principles of ecologically sustainable development,
(h)  the likely social and economic consequences of granting or of not granting concurrence.
(6)  The Minister administering the Threatened Species Conservation Act 1995 must provide the Minister who is the consent authority with any recommendations made by the Director-General of the Department of Environment, Climate Change and Water concerning determination of a development application relating to development referred to in subsection (3) and, if that Minister does not accept any one or more of the recommendations, that Minister must include in the determination the recommendations not accepted and that Minister’s reasons for not accepting them.
(7)  A copy of the reasons referred to in subsection (6) must be available for public inspection, during ordinary office hours, at the head office of the National Parks and Wildlife Service.
(8) Granting or refusal of concurrence
A person whose concurrence to development is required may:
(a)  grant concurrence to the development, either unconditionally or subject to conditions, or
(b)  refuse concurrence to the development.

In deciding whether to grant concurrence, the person must take into consideration only the matters stated pursuant to section 30 (3) and applicable to the development (unless the relevant environmental planning instrument is a deemed instrument referred to in Division 2 of Part 21 of Schedule 6).

(8A) Threatened species requirements
The Director-General of the Department of Environment, Climate Change and Water may grant concurrence under this section conditional on the taking of specified action (voluntary action, as provided by subsection (8B)) that the Director-General considers will significantly benefit threatened species conservation, but only if the Director-General is satisfied that the person who proposes to carry out the development to which the concurrence relates has agreed to take the voluntary action and agrees to the imposition of the condition.
(8B)  The voluntary action that can be required by a condition imposed under this section is any one or more of the following:
(a)  the reservation of land under Part 4 of the National Parks and Wildlife Act 1974 or the entering into of a conservation agreement relating to the land under that Act,
(b)  action to secure the protection of land for conservation purposes by a method that the Director-General considers satisfactory,
(c)  action to restore threatened species habitat on land referred to in paragraph (a) or (b),
(d)  the contribution of money for a purpose referred to in paragraphs (a)–(c).
(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).
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