Environmental Planning and Assessment Act 1979 No 203
Historical version for 22 December 2000 to 31 December 2000 (accessed 19 December 2014 at 08:42) Current version
Part 8

Part 8 Miscellaneous

146, 147   (Repealed)

148   Disclosure and misuse of information

(1)  A person shall not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made:
(a)  with the consent of the person from whom the information was obtained,
(b)  in connection with the administration or execution of this Act,
(c)  for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings,
(d)  in accordance with a requirement imposed under the Ombudsman Act 1974, or
(e)  with other lawful excuse.
(2)  A person acting in the administration or execution of this Act shall not use, either directly or indirectly, information acquired by the person in that capacity, being information that is not generally known but if generally known might reasonably be expected to affect materially the market value or price of any land, for the purpose of gaining either directly or indirectly an advantage for himself or herself, or a person with whom he or she is associated.
(3)  A person acting in the administration or execution of this Act, and being in a position to do so, shall not, for the purpose of gaining either directly or indirectly an advantage for himself or herself, or a person with whom he or she is associated, influence:
(a)  the making of any provision of an environmental planning instrument or draft environmental planning instrument, or
(b)  the determination of a development application, or
(c)  a decision concerning a complying development certificate, or
(d)  the giving of an order under Division 2A of Part 6.
(4)  In this section, a person is associated with another person if the person is the spouse, de facto partner (whether of the same or the opposite sex), sibling, parent or child of the other person.

Maximum penalty: 20 penalty units or imprisonment for a term not exceeding 6 months.

149   Planning certificates

(1)  A person may, on payment of the prescribed fee, apply to a council for a certificate under this section (a planning certificate) with respect to any land within the area of the council.
(2)  On application made to it under subsection (1), the council shall, as soon as practicable, issue a planning certificate specifying such matters relating to the land to which the certificate relates as may be prescribed (whether arising under or connected with this or any other Act or otherwise).
(3)  (Repealed)
(4)  The regulations may provide that information to be furnished in a planning certificate shall be set out in the prescribed form and manner.
(5)  A council may, in a planning certificate, include advice on such other relevant matters affecting the land of which it may be aware.
(6)  A council shall not incur any liability in respect of any advice provided in good faith pursuant to subsection (5). However, this subsection does not apply to advice provided in relation to contaminated land (including the likelihood of land being contaminated land) or to the nature or extent of contamination of land within the meaning of Part 7A.
(7)  For the purpose of any proceedings for an offence against this Act or the regulations which may be taken against a person who has obtained a planning certificate or who might reasonably be expected to rely on that certificate, that certificate shall, in favour of that person, be conclusively presumed to be true and correct.

149A   Building certificates

(1)  A council may issue a building certificate in accordance with this section and sections 149B–149E.
(2)  A building certificate may apply to the whole or to part only of a building.
(3)  The regulations may provide for the form in which a building certificate is to be issued.
(4)  (Repealed)
Note. A building certificate under this Part replaces the building certificate formerly issued under the Local Government Act 1993.

149B   Applications for building certificates

(1)  An application for a building certificate may be made:
(a)  by the owner of the land on which the building is erected, or
(b)  by any other person, with the consent of the owner of that land, or
(c)  by the purchaser under a contract for the sale of property that comprises or includes the building or part, or by the purchaser’s solicitor or agent, or
(d)  by a public authority that has notified the owner of its intention to apply for the certificate.
(2)  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.

149C   Supply of information in connection with applications for building certificates

(1)  On receipt of an application, the council may, by notice in writing served on the applicant, require the applicant to supply it with such information (including building plans, specifications, survey reports and certificates) as may reasonably be necessary to enable the proper determination of the application.
(2)  If the applicant is able to provide evidence that no material change has occurred in relation to the building since the date of a survey certificate which, or a copy of which, is supplied to the council by the applicant, the council is not entitled to require the applicant to supply a more recent survey certificate.

149D   Obligations of council to issue building certificate

(1)  The council must issue a building certificate if it appears that:
(a)  there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993:
(i)  to order the building to be demolished, altered, added to or rebuilt, or
(ii)  to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or
(iii)  to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or
(b)  there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.
(2)  If the council refuses to issue a building certificate, it must inform the applicant, by notice, of its decision and of the reasons for it.
(3)  The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building certificate.
(4)  The council must not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in subsection (1) (a).
(5)  Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work.

149E   Effect of building certificate

(1)  A building certificate operates to prevent the council:
(a)  from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and
(b)  from taking proceedings in relation to any encroachment by the building onto land vested in or under the control of the council,
in relation to matters existing or occurring before the date of issue of the certificate.
(2)  A building certificate operates to prevent the council, for a period of 7 years from the date of issue of the certificate:
(a)  from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and
(b)  from taking proceedings in relation to any encroachment by the building onto land vested in or under the control of the council,
in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear.
(3)  However, a building certificate does not operate to prevent a council:
(a)  from making order No 6 in the Table to section 121B, or
(b)  from taking proceedings against any person under section 125 with respect to that person’s failure:
(i)  to obtain a development consent with respect to the erection or use of the building, or
(ii)  to comply with the conditions of a development consent.
(4)  An order or proceeding that is made or taken in contravention of this section is of no effect.

149F   Appeals with respect to building certificates

(1)  An applicant:
(a)  who is aggrieved by a council’s refusal to issue a building certificate, or
(b)  who is aggrieved by a council’s refusal to issue a building certificate within 40 days after:
(i)  the date of application for the certificate, or
(ii)  if the applicant receives a notice under section 149C to supply information, the date on which the information is supplied,
whichever is the later, or
(c)  who receives a notice under section 149C to supply information,
may appeal to the Court.
(2)  The appeal must be made within 12 months after the date on which the refusal is communicated to the person, the date on which the 40-day period expires or the date of the notice under section 149C, as the case requires.
(3)  On hearing the appeal, the Court may do any one or more of the following:
(a)  it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit,
(b)  it may revoke, alter or confirm a notice under section 149C,
(c)  it may make any other order that it considers appropriate.

149G   Record of building certificates

(1)  The council must keep a record of building certificates issued by it in such form as it thinks fit.
(2)  A person may inspect the record at any time during the ordinary office hours of the council.
(3)  A person may obtain a copy of a building certificate from the record with the consent of the owner of the building and on payment of the fee prescribed by the regulations.

150   Evidence

(1)  A document that purports to be a copy or extract of any document, map or plan embodied, incorporated or referred to in an environmental planning instrument is admissible in evidence if:
(a)  it purports to be printed by the Government Printer or by the authority of the Government, or
(b)  it purports to be certified:
(i)  where the original documents, maps or plans are held in the office of the Department—under the hand of such officer of the Department as is prescribed, or
(ii)  where the original documents, maps or plans are held in the offices of a council—under the hand of the mayor, general manager or public officer of the council.
(2)  Where the original documents, maps or plans are held in the office of:
(a)  the Department—the Director-General shall furnish a certified copy or extract to the person applying for it on payment of the prescribed fee, or
(b)  a council—that council shall furnish a certified copy or extract to the person applying for it on payment of the prescribed fee.
(3)  For the purposes of this section, a copy or extract of a map or plan:
(a)  may be to the same scale as the original document, map or plan or may be an enlarged or reduced copy, and
(b)  where the original document, map or plan is coloured, may be a coloured copy or may be a black and white copy.

151   Proof of ownership of land

(1)  In any legal proceedings under this Act, in addition to any other method of proof available:
(a)  evidence that the person proceeded against is rated in respect of any land to any rate under the Local Government Act 1993, otherwise than as a rate paying lessee, is, until the contrary is proved, evidence that the person is the owner of the land, or
(b)  a certificate furnished by the Registrar-General under subsection (2) with respect to any land is, until the contrary is proved, evidence that the person described in the certificate as the proprietor or owner of the land was the owner of that land at the time or during the period specified in the certificate pursuant to subsection (3) (b) (i) or (ii).
(2)  If:
(a)  written application with respect to any land is made to the Registrar-General under this subsection by a consent authority, and
(b)  the Registrar-General has been paid the prescribed fee,
the Registrar-General is to furnish to the consent authority a certificate setting out such of the particulars specified in subsection (3) as are recorded in the Register kept under the Real Property Act 1900 or in the General Register of Deeds maintained under Division 1 of Part 23 of the Conveyancing Act 1919 and as the Registrar-General is able to ascertain from the information about the land furnished in the application.
(3)  The particulars are:
(a)  the situation and a description of the land, and
(b)  in the case of:
(i)  land subject to the provisions of the Real Property Act 1900—the names and addresses of the person registered under that Act as the proprietor of the land at the time or during the period in respect of which the application is made and the date of registration of the instruments under which they became so registered, or
(ii)  land not subject to those provisions—the names and addresses of the owner of the land at the time or during the period in respect of which the application is made and the dates, and dates of registration under Division 1 of Part 23 of the Conveyancing Act 1919, of the instruments kept in the General Register of Deeds maintained under that Division under which the owner became the owner of the land.
(4)  Judicial notice is to be taken for the purposes of this Act of the signature of the Registrar-General and of a Deputy Registrar-General.
(5)  In subsection (2) (b), the reference to the prescribed fee is, in relation to an application made under that paragraph:
(a)  in the case of land subject to the provisions of the Real Property Act 1900—a reference to the fee prescribed under that Act for the purposes of that paragraph, or
(b)  in the case of land not subject to those provisions—a reference to the fee prescribed under the Conveyancing Act 1919 for the purposes of that paragraph.

152   Right to be heard

Where this Act confers a right on a person to be heard, that person shall be entitled to be heard personally or by counsel, solicitor or agent.

153   Notices

(1)  Where under this Act any notice or other document is required to be given to or served upon any person, the notice or other document may be given or served:
(a)  in the case of an individual:
(i)  by delivering it to him or her, or
(ii)  by sending it by prepaid post addressed to him or her at the address, if any, specified by him or her for the giving of notices or service of documents under this Act, or, where no such address is specified, at his or her usual or last known place of abode or his or her last known place of business, or
(b)  in the case of a person not being an individual:
(i)  by leaving it at that person’s place of business, or, if that person is a corporation, at the registered office of that corporation, with a person apparently not less than 16 years of age and apparently in the service of the person to whom the notice or other document is required to be given or on whom the notice or other document is required to be served, or
(ii)  by sending it by prepaid post addressed to that person at the address, if any, specified by that person for the giving of notices or service of documents under this Act, or, where no such address is specified, at that person’s last known place of business.
(2)  A notice or other document shall, in respect of a notice or other document sent by prepaid post in accordance with subsection (1) (a) (ii) or (b) (ii), be deemed to have been given or served at the time at which the notice or other document would be delivered in the ordinary course of post.

153A   Delegation by public authorities

(1)  A public authority (other than a council) may delegate any function conferred or imposed on the public authority by or under this Act (other than this power of delegation) to:
(a)  in the case of a public authority other than a chief executive officer—any officer or employee of the public authority, or
(b)  in the case of a chief executive officer—any officer or employee of the public authority of which the chief executive officer is the chief executive officer.
(2)  An officer or employee of a public authority (other than a council) may delegate any function conferred or imposed on the officer or employee by or under this Act (other than this power of delegation) to any other officer or employee of the public authority. However, a function conferred or imposed on the firstmentioned officer or employee by delegation may not be subdelegated unless the subdelegation is authorised by the terms of the delegation.
(3)  A power conferred by this section is in addition to any other power of delegation of the public authority, officer or employee or any power of a person to exercise functions on behalf of a public authority.

154   Transfer or amalgamation of land to which an environmental planning instrument applies

(1)  Where land is transferred from one area to another area or is amalgamated with land of another area:
(a)  subject to paragraph (b), an environmental planning instrument shall continue to apply to the land to which it applied immediately before the date of the transfer or amalgamation, and so applies as in force at that date, and
(b)  the council of that other area has the functions conferred or imposed on a council by or under this Act by virtue of any environmental planning instrument applying to the land so transferred or amalgamated immediately before the date of the transfer or amalgamation.
(2)  Where land is transferred from one area to another area:
(a)  a draft local environmental plan that has been placed on public exhibition in accordance with section 66 and that applies to land including that land may, with the written consent of the council of that other area given within 2 months after the date of the transfer, be proceeded with as if the transfer had not taken effect,
(b)  subject to paragraph (c), the plan, when it takes effect as an environmental planning instrument, shall apply to that land, and so applies as in force at the date of publication of the plan in the Gazette, and
(c)  the council of that other area has the functions conferred or imposed on a council by or under this Act by virtue of the plan, when it takes effect as an environmental planning instrument, so far as it applies to that land.
(3)  An environmental planning instrument referred to in subsection (1) or (2), to the extent that it applies to land so referred to, so applies subject to any subsequent environmental planning instrument applying to that land.
(4)  This section applies to and in respect of a transfer or amalgamation of land, whether or not it is effected pursuant to the Local Government Act 1993.

155   Application of section 26 of the Interpretation Act 1987

Without limiting the generality of section 26 of the Interpretation Act 1987, a reference in that section to an instrument includes a reference to an environmental planning instrument.

156   Statute law revision (sec 16)

(1)  On a day to be appointed by the Governor for the purposes of this section and notified by proclamation published in the Gazette, section 16 is repealed.
Editorial note. Day appointed for the purposes of this Act, 25.3.1988. See Gazette No 65 of 25.3.1988, p 2044.
(2)  A day shall not be appointed for the purposes of subsection (1) that is earlier than a day on which the Department established by section 16 is abolished, or its name changed, under section 49 of the Constitution Act 1902.
(3)  The repeal of section 16 by subsection (1) does not itself affect the existence of the Department established by section 16, but nothing in this subsection affects the powers conferred by section 49 of the Constitution Act 1902.

157   Regulations

(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, for or with respect to:
(a)  any function conferred by this Act on any person, or
(b)  requiring information, particulars, returns and statistics to be furnished to the Director-General by councils and the time and mode of furnishing and the manner of verifying them, or
(c)  the form, time, manner and mode of giving notices under this Act, or
(d)  obligations on persons regarding fire safety, or
(e)  the purposes, objectives, provision and maintenance of affordable housing, including:
(i)  means for determining whether a household is a very low income, low income or moderate income household (for example, by reference to income statistics produced by the Australian Bureau of Statistics), and
(ii)  means for determining affordable housing costs payable in respect of affordable housing (for example, by reference to percentages of household income), and
(iii)  enabling the Minister by order to determine matters relating to affordable housing (including the matters referred to in subparagraphs (i) and (ii)).
(2)  A provision of a regulation may:
(a)  apply generally or be limited in its application by reference to specified exceptions or factors,
(b)  apply differently according to different factors of a specified kind, or
(c)  authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,
or may do any combination of those things.
(3)  A regulation may apply, adopt or incorporate any publication as in force from time to time.

158   (Repealed)

159   Savings, transitional and other provisions

Schedule 6 has effect.
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