Environmental Planning and Assessment Act 1979 No 203
Current version for 19 November 2014 to date (accessed 22 December 2014 at 04:58)
Part 6Division 1

Division 1 General

116   (Repealed)

117   Directions by the Minister

(1)  The Minister may direct a public authority or person having functions under this Act or an environmental planning instrument to exercise those functions at or within such times as are specified in the direction.
(2)  In addition to any direction which may be given under subsection (1), the Minister may direct a council:
(a)  to exercise its functions under Division 4 or 5 of Part 3 in relation to the preparation of a local environmental plan in accordance with such principles, not inconsistent with this Act, as are specified in the direction, and
(b)  without limiting paragraph (a), to include in a planning proposal prepared by the council provisions which will achieve or give effect to such principles or such aims, objectives or policies, not inconsistent with this Act, as are specified in the direction, and
(c)  to provide the Minister, in the manner and at the times specified in the direction, with reports, containing such information as the Minister may direct, on the council’s performance in relation to planning and development matters.
(2A)  A direction under subsection (2):
(a)  may be given to a particular council or to councils generally, and
(b)  may require the inclusion in planning proposals of provisions to achieve or give effect to particular principles, aims, objectives or policies, and
(c)  may require planning proposals to be strictly consistent or substantially consistent with the terms of the direction (or provide for the circumstances in which an inconsistency can be justified).

Any such direction may be given to councils generally by its publication in the Gazette or on a website maintained by the Department (or both).

(2B)  A reference to a council in subsections (2) and (2A) includes a reference to a relevant planning authority under Division 4 of Part 3 that is not a council.
(3)  A public authority or person to whom a direction is given under subsection (1) or (2) shall comply, and is hereby empowered to comply, with the direction in accordance with the terms of the direction.
(4)  Before giving a direction under subsection (1) or (2), the Minister shall consult with the responsible Minister concerned.
(4A)  Before giving a direction under subsection (2) (c), the Minister is to consult with the Local Government and Shires Association of New South Wales and any other industry organisation the Minister considers to be relevant, in relation to the information that the Minister is proposing to seek. This requirement is in addition to the requirement under subsection (4).
(5)  A local environmental plan (or any planning proposal or purported plan) cannot in any court proceedings be challenged, reviewed, called into question, prevented from being made or otherwise affected on the basis of anything in a direction under subsection (1) or (2).

117A   Inquiry into councils by Director-General of Department of Premier and Cabinet

(1)  The Director-General of the Department of Planning and Environment may request the Director-General of the Department of Premier and Cabinet to conduct an investigation under section 430 of the Local Government Act 1993 into any aspect of a council’s performance of its functions under this Act that requires investigation.
(2)  The Director-General of the Department of Premier and Cabinet is to provide the Director-General of the Department of Planning and Environment with advice on the outcome of any such request or investigation.

117B   Action that may be taken against council following investigation

(1)  If the Building Professionals Board has made its final report of the results of an investigation under section 45 of the Building Professionals Act 2005 in relation to a council publicly available and is of the opinion that the council has not taken appropriate action about a matter investigated, the Board may:
(a)  make recommendations to the Director-General of the Department of Local Government as to the measures that it considers appropriate to be taken in relation to the matter, or
(b)  recommend to the Minister that the Minister take action against the council under this section.
Note. Section 45 of the Building Professionals Act 2005 enables the Building Professionals Board to investigate the work and activities of a council in its capacity as a certifying authority.
(2)  The Minister may, on the recommendation of the Board under this section and following consultation with the Minister administering the Local Government Act 1993, make an order suspending a council’s authority to exercise all or specified functions of a certifying authority.
(3)  A council must comply with an order under this section that relates to the council.
(4)  Despite any other provision of this Act, a council that is the subject of an order must not exercise any function of a certifying authority while the council’s authority to exercise that function is suspended by operation of the order.
(5)  An order does not operate to suspend a council’s authority to exercise the functions of a certifying authority in relation to any matter being dealt with by the council as a certifying authority before the commencement of the order, unless the order provides otherwise.
(6)  An order may contain provisions of a savings or transitional nature consequent on the suspension contained in the order.
(7)  Without limiting subsection (6), an order may contain provisions for or with respect to the following:
(a)  the way in which any pending matter being dealt with by the relevant council as a certifying authority is to be completed, including, for example, enabling the council to complete any such matter or providing for the matter to be completed by an accredited certifier,
(b)  directing any fee paid to the council to act as a certifying authority in relation to any pending matter to be refunded,
(c)  directing the council to pay any fees required to be paid to an accredited certifier to complete any pending matter being dealt with by the council as a certifying authority.
(8)  The Minister must revoke an order if satisfied that the relevant council has implemented measures to address the matters that led to the making of the order.
(9)  Nothing prevents the Minister from amending an order made under this section by another order, including amending the first order to change the functions of a certifying authority to which the first order relates.
(10)  An order under this section must be in writing and published in the Gazette and takes effect on the day on which it is published in the Gazette or on a later day specified in the order.
(11)  Section 109E (1AA) does not require a council to accept an appointment as principal certifying authority if the council would contravene subsection (4) by accepting the appointment.
(12)  An order under this section may be made whether or not any action has been taken by the Minister under section 118 in relation to the exercise of all or any of the functions of the council concerned.
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