Environmental Planning and Assessment Act 1979 No 203
Current version for 19 November 2014 to date (accessed 27 November 2014 at 15:18)
Part 4Division 3

Division 3 Special procedure for complying development

84   Application of this Division

This Division applies to complying development.

84A   Carrying out of complying development

(1)  A person may carry out complying development on land if:
(a)  the person has been issued with a complying development certificate for the development, and
(b)  the development is carried out in accordance with:
(i)  the complying development certificate, and
(ii)  any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued.
(2)  An application for a complying development certificate may be made:
(a)  by the owner of the land on which the development is proposed to be carried out, or
(b)  by any other person, with the consent of the owner of that land.
(3)  The regulations may provide for the procedures for making an application, the fees payable in connection with an application and the procedures for dealing with an application.
(4)  (Repealed)
(5)  Nothing in this Division prevents a consent authority from considering and determining a development application for the carrying out of complying development.

84B   (Repealed)

85   What is a “complying development certificate”?

(1) Terms of complying development certificate
A complying development certificate is a certificate:
(a)  that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and
(b)  in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia.
(2)  A complying development certificate may indicate different classifications for different parts of the same building.
Note. To the extent to which it deals with the classification of a proposed building, a complying development certificate under this Division replaces the statement of classification formerly issued under the regulations under the Local Government Act 1993.
(3) Erection of buildings
A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 109M.
Note. Section 109M prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.
(4) Subdivision of land
A complying development certificate that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems.
Note. A plan of subdivision cannot be registered under the Conveyancing Act 1919 unless a subdivision certificate has been issued for the subdivision.
(5) Other requirements for complying development certificates
The regulations:
(a)  may impose other requirements concerning the issue of complying development certificates, and
(b)  may provide for the form in which a complying development certificate is to be issued.
(5A)  A complying development certificate has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development.
(6)  For the purposes of this section, development standard includes a provision of a development control plan that would be a development standard, within the meaning of section 4, if the provision were in an environmental planning instrument.

85A   Process for obtaining complying development certificates

(1) Application
An applicant may, in accordance with the regulations, apply to:
(a)  the council, or
(b)  an accredited certifier,
for a complying development certificate.
(2)  (Repealed)
(3) Evaluation
The council or accredited certifier must consider the application and determine:
(a)  whether or not the proposed development is complying development, and
(b)  whether or not the proposed development complies with the relevant development standards, and
(c)  if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions.
(4)  A council or accredited certifier must not refuse to issue a complying development certificate on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.
(5)  A council, an employee of a council and an accredited certifier do not incur any liability as a consequence of acting in accordance with subsection (4).
(6) Determination
The council or an accredited certifier may determine an application:
(a)  by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or
(b)  by refusing to issue a complying development certificate.
(7)  The council or an accredited certifier must not refuse to issue a complying development certificate if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the regulations relating to the issue of a complying development certificate.
(8)  The determination of an application by the council or accredited certifier must be completed within the period prescribed by the regulations (or such longer period as may be agreed to by the applicant) after lodgment of the application.
(9)  In determining the application, the council or the accredited certifier must impose a condition that is required to be imposed under Division 6 in relation to the complying development.
(10)  There is no right of appeal against the determination of, or a failure or refusal to determine, an application for a complying development certificate by a council or an accredited certifier.
(10A) Payment of long service levy
Where a council or accredited certifier completes a complying development certificate, that certificate is not to be forwarded or delivered to the applicant, unless any long service levy payable under section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) has been paid.
(11) Post-determination notification
On the determination of an application for the issue of a complying development certificate:
(a)  the council or accredited certifier must notify the applicant of the determination, and
(b)  the accredited certifier must notify the council of the determination, and
(c)  if the determination is to issue a complying development certificate, the council or accredited certifier must notify any other person, if required to do so by the regulations, in accordance with the regulations.
(12)  For the purposes of subsection (7), development standard includes a provision of a development control plan that would be a development standard, within the meaning of section 4, if the provision were in an environmental planning instrument.

86   Commencement of complying development

(1) Erection of buildings
The erection of a building in accordance with a complying development certificate must not be commenced until:
(a)  the person having the benefit of the complying development certificate has:
(i)  appointed a principal certifying authority for the building work, and
(ii)  notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and
(a1)  the principal certifying authority has, no later than 2 days before the building work commences:
(i)  notified the council of his or her appointment, and
(ii)  notified the person having the benefit of the complying development certificate of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and
(a2)  the person having the benefit of the complying development certificate, if not carrying out the work as an owner-builder, has:
(i)  appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and
(ii)  notified the principal certifying authority of any such appointment, and
(iii)  unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and
(b)  the person having the benefit of the complying development certificate has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the erection of the building.
(2) Subdivision of land
Subdivision work in accordance with a complying development certificate must not be commenced until:
(a)  the person having the benefit of the complying development certificate has appointed a principal certifying authority for the subdivision work, and
(a1)  the principal certifying authority has, no later than 2 days before the subdivision work commences, notified the council of his or her appointment, and
(b)  the person having the benefit of the complying development certificate has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the subdivision work.
(3) Crown development
Subsections (1) and (2) do not apply in relation to development carried out by the Crown.
(4) Penalty for contravention of subsection (1) or (2)
The maximum penalty that may be imposed for a contravention of subsection (1) or (2) is 300 penalty units.

86A   Duration of complying development certificate

(1)  A complying development certificate becomes effective and operates from the date endorsed on the certificate.
(2)  A complying development certificate lapses 5 years after the date endorsed on the certificate.
(3)  However, a complying development certificate does not lapse if the development to which it relates is physically commenced on the land to which the certificate applies within the period of 5 years after the date endorsed on the certificate.
(4)  No proceedings may be taken before a court or tribunal to extend the 5-year period.

87   Modification of complying development

(1)  A person who has made an application to carry out complying development and a person having the benefit of a complying development certificate may apply to modify the development the subject of the application or certificate.
(2)  This Division applies to an application to modify development in the same way as it applies to the original application.
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