Local Government Act 1993 No 30
Current version for 24 November 2014 to date (accessed 25 November 2014 at 02:04)
Chapter 7Part 1Division 3

Division 3 Making and determination of applications for approval—generally

75   Applications for approval

An application may be made to the council for an approval under this Part.

76   What may an application relate to?

The application may relate to:
•  the whole or part of an activity
•  the whole or any part of land on which the activity is proposed to be carried out
•  more than one activity.

77   Relevant regulations and local policies to be brought to notice of intending applicants

A council must take such steps as are reasonably practicable to bring the existence of any relevant regulations and any relevant local policy adopted under Part 3 to the notice of any person it knows to be an intending applicant for an approval.

78   Who may make an application?

(1)  An application may be made by the person seeking to carry out the activity for which the council’s approval is required.
(2)  If the application applies to particular land, the applicant must be the owner of the land or a person who has the consent of the owner.
(3)  If the Crown is the owner of the land, the application may be made by or with the consent of a Minister or a person authorised for the purpose by a Minister.

79   What is the form of application?

An application must be made in the approved form.

80   Is there an application fee?

(1)  An application must be accompanied by the approved fee.
(2)  A council may require payment of a further approved fee if the application is subsequently amended.

81   What matters must accompany an application?

An application must be accompanied by such matters as may be prescribed by the regulations and such matters specified by the council as may be necessary to provide sufficient information to enable the council to determine the application.

82   Objections to application of regulations and local policies

(1)  An applicant for an approval may lodge with the council an objection:
(a)  that the regulations or a local policy adopted under Part 3 by the council relating to the activity for which approval is sought do not make appropriate provision with respect to that activity, or
(b)  that compliance with any provision of those regulations or such a policy is unreasonable or unnecessary in the particular circumstances of the case.
(2)  The applicant must specify the grounds of the objection.
(3)  If the objection relates to the regulations and the council is satisfied that the objection is well founded, it may, with the concurrence of the Director-General, in determining the application, direct that:
(a)  such provisions of any regulation relating to that activity as are specified in the direction:
(i)  are not to apply, or
(ii)  are to apply with such modifications as are specified in the direction,
in respect of the carrying out of that activity, or
(b)  such requirements as are specified in the direction are to apply to the carrying out of that activity,
or give directions under both paragraphs (a) and (b).
(3A)  If the objection relates to a local policy adopted under Part 3 by the council and the council is satisfied that the objection is well founded, it may, in determining the application, direct that:
(a)  such provisions of any local policy relating to that activity as are specified in the direction:
(i)  are not to apply, or
(ii)  are to apply with such modifications as are specified in the direction,
in respect of the carrying out of that activity, or
(b)  such requirements as are specified in the direction are to apply to the carrying out of that activity,
or give directions under both paragraphs (a) and (b) and the council must give the reasons for its direction or directions.
(3B)  An objection is well founded for the purposes of subsection (3A) only if the council is satisfied that no person or the public interest will be adversely affected by the variation and that any variation is consistent with the principles of ecologically sustainable development.
(4)  Any direction given by the council under subsection (3) or (3A), if the council’s approval to the application concerned is granted, has effect according to its tenor and, in the case of a direction referred to in subsection (3) (a) (ii) or (b) or subsection (3A) (a) (ii) or (b), is a condition of that approval.

83   Ownership and use of plans and specifications

One copy of any plans and specifications accompanying an application becomes the property of the council, but must not be used for any purpose other than giving effect to the provisions of this Act or any other Act.
Note. This section does not prevent the use of the plans and specifications for other purposes with the consent of the applicant and with any other necessary consent.

84   Acknowledgment of application

The council, on receiving an application, must give written acknowledgment to the applicant of its receipt, unless the council rejects the application under section 85.

85   Rejection of unclear or illegible applications

(1)  The council may reject an application within 7 days after its receipt if it is not clear as to the approval sought or if it is not easily legible.
(2)  An application so rejected is taken not to have been made and the application fee is to be refunded.

86   Request for more information

(1)  The council may, before it determines or is taken to have determined an application, request an applicant to provide it with more information that is reasonably necessary to enable the proper determination of the application.
(2)  The request must be made within 21 days after the council receives the application.
(3)  The information must be provided within a reasonable period specified by the council for the purpose, subject to subsection (4).
(4)  The period of time that elapses between the date of the council’s request and the date on which:
(a)  the information is provided, or
(b)  the applicant notifies the council that the information will not be provided, or
(c)  the period specified by the council ends,
whichever is the sooner, is not to be taken into consideration in calculating the period referred to in section 105.
(5)  A second or subsequent request for information may be made by the council, but such a request has no effect for the purposes of section 105.

87   Amendment of applications

(1)  An applicant, at any time before the application is determined, may make a minor amendment to the application and may amend any matter accompanying the application.
(2)  The making of a minor amendment does not require the application to be further notified to anyone.
(3)  For the purposes of section 105, the application is taken not to have been made until the amendment is made.

88   Withdrawal of applications

(1)  An applicant may withdraw an application at any time before its determination by the council by giving the council notice to that effect signed by the applicant.
(2)  An application withdrawn under this section is taken for the purposes of this Act never to have been made.
(3)  However, the question whether the application fee should be refunded is at the absolute discretion of the council.

89   Matters for consideration

(1)  In determining an application, the council:
(a)  must not approve the application if the activity or the carrying out of the activity for which approval is sought would not comply with the requirements of any relevant regulation, and
(b)  must take into consideration any criteria in a local policy adopted under Part 3 by the council which are relevant to the subject-matter of the application, and
(c)  must take into consideration the principles of ecologically sustainable development.
(2)  If no requirements are prescribed for the purposes of subsection (1) (a), and no criteria are adopted for the purposes of subsection (1) (b), the council in determining an application:
(a)  is to take into consideration, in addition to the principles of ecologically sustainable development, all matters relevant to the application, and
(b)  is to seek to give effect to the applicant’s objectives to the extent to which they are compatible with the public interest.
(3)  Without limiting subsection (2), in considering the public interest the matters the council is to consider include:
(a)  protection of the environment, and
(b)  protection of public health, safety and convenience, and
(c)  any items of cultural and heritage significance which might be affected.

90   Concurrence

(1)  The council must not grant an approval in relation to a matter for which this Act or a regulation requires the council to obtain the concurrence of some other person or authority unless the council has obtained the concurrence of the person or authority.
(2)  The person or authority may give the council notice that the concurrence may be assumed with such qualifications or conditions as are specified in the notice.
(3)  The person or authority may amend its notice by a further notice.
(4)  An approval given in accordance with a notice in force under this section is as valid as it would be if the council had obtained the concurrence of the person or authority concerned.
(5)  Concurrence is to be assumed if at least 40 days have passed since concurrence was sought and the person or authority has not, within that period, expressly refused concurrence.

91   Giving effect to concurrence

(1)  In granting an approval for which the concurrence of a person or authority has been given or may be assumed, the council must grant the approval subject to any conditions of the concurrence (whether the concurrence is given under section 90 (1) or (2)).
(2)  This section does not affect the council’s right to impose conditions under this Division not inconsistent with the conditions referred to in subsection (1) or to refuse approval.

92   Approval where an accreditation is in force

A council must not refuse to give its approval to an activity on the ground that any component, process or design relating to the activity is unsatisfactory if the component, process or design is accredited under Division 5 or under the regulations under the Environmental Planning and Assessment Act 1979.

93   Certification by qualified persons

(1)  A council or the Minister may be satisfied that:
(a)  a particular design, material, process or product complies with a criterion for approval, or
(b)  an activity has been carried out in compliance with an approval,
by relying on a certificate to that effect from an appropriately qualified person.
(2)  A certificate relating to a particular design, material, process or product must specify the particular criterion with which the design, material, process or product complies.
(3)  The council or the Minister must rely on such a certificate if it is from an appropriately qualified person and is furnished by a public authority.
Note. Sections 92 and 93 specify circumstances in which a council does not have to form an independent judgment about some aspect of an activity for which approval is being sought, but may rely on an accreditation or certification of a competent person.

A component, process or design relating to an activity may be accredited in accordance with the procedure set out in Division 5 of this Part.

Section 732 exempts a council, councillor or employee of a council from liability that would otherwise be incurred as a consequence of relying on an accreditation or certification.

94   Determination of application

(1)  The council may determine an application:
(a)  by granting approval to the application, either unconditionally or subject to conditions, or
(b)  by refusing approval.
(2)  This section does not affect section 72.

95   “Deferred commencement” approval

(1)  An approval may be granted subject to a condition that the approval is not to operate until the applicant satisfies the council 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.
(2)  Such an approval must be clearly identified as a “deferred commencement” approval (whether by the use of that expression or by reference to this section or otherwise).
(3)  A “deferred commencement” approval must clearly distinguish conditions concerning matters as to which the council must be satisfied before the approval can operate from any other conditions.
(4)  A council may specify the period in which the applicant must produce evidence to the council sufficient to enable it to be satisfied as to those matters.
(5)  The applicant may produce evidence to the council sufficient to enable it to be satisfied as to those matters and, if the council has specified a period for the purpose, the evidence must be produced within that period.
(6)  If the applicant produces evidence in accordance with this section, the council must notify the applicant whether or not it is satisfied as to the relevant matters. If the council has not notified the applicant within the period of 28 days after the applicant’s evidence is produced to it, the council is, for the purposes only of section 177, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires.

96   Staged approval

(1)  An approval may be granted:
(a)  for the activity or one or more of the activities for which the approval is sought, or
(b)  for such an activity, except for a specified part or aspect of the activity, or
(c)  for a specified part or aspect of such an activity.
(2)  Such an approval may be granted subject to a condition that the activity or the specified part or aspect of the activity, or any thing associated with the activity or the carrying out of the activity, must be the subject of:
(a)  a further approval, or
(b)  a consent, approval or permission under another Act,
or both.

97   Conditions concerning security

(1)  An approval may be granted subject to a condition that the applicant provides to the council security for the payment of the cost of either or both of the following:
(a)  making good any damage that may be caused to any council property as a consequence of doing or not doing any thing to which the approval relates,
(b)  completing any works (other than works prescribed by the regulations) that may be required in connection with the approval.
Note. Works the completion of which may be required in connection with an approval could include footpaths, kerbing and guttering, road works, trunk drainage and environmental controls.
(2)  The security is to be for such reasonable amount as is determined by the council and specified in the condition.
(3)  The security may be provided, at the applicant’s choice, by:
(a)  a deposit with the council, or
(b)  a guarantee satisfactory to the council.
(4)  Security provided by way of deposit may be paid out to meet any cost referred to in subsection (1).
(5)  A security deposit (or part) if repaid to the person who provided it is to be repaid with any interest accrued on the deposit (or part) as a consequence of its investment.

98   Other conditions

(1)  An approval may be granted subject to a condition that a specified aspect of the activity that is ancillary to the core purpose of the activity is to be carried out to the satisfaction of the council or a person specified by the council.
(2)  An approval is subject to any condition prescribed by the regulations as a condition of the approval.

99   Notice to applicant of determination of application

(1)  The council (or the Minister in the case of a determination by the Minister under section 72) must give notice of the determination of an application to the applicant as soon as practicable after the determination.
(2)  The date of the determination and the date from which the approval operates (if approval is granted) must be endorsed on the notice.
(3)  In the case of an approval granted subject to a condition that the approval is not to operate until the applicant satisfies the council as to any matter specified in the condition (a “deferred commencement” approval):
(a)  the date from which the approval operates must not be endorsed on the notice, and
(b)  if the applicant satisfies the council as to the matter, the council must, as soon as practicable after being satisfied, give notice to the applicant of the date from which the approval operates.
(4)  If the determination is made by the granting of approval subject to conditions or by refusing approval, the notice must notify the applicant:
(a)  of the council’s (or the Minister’s) reasons for the imposition of each condition or for refusing approval, and
(b)  of the provisions of this Act conferring a right of review of the determination (if relevant) and, in the case of a determination by the council, a right of appeal against the determination.

100   Review of determination

(1)  An applicant may request the council to review a determination of the applicant’s application.
(2)  The request for a review must be made within 28 days after the date of the determination.
(3)  An approved fee must, if required by the council, 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.
(4A)  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 (5) to make the review.
(5)  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.
(6)  The council must give notice of the result of the review to the applicant as soon as practicable after the review.
(7)  The date of review must be endorsed on the notice.
(8)  If, as a consequence of a review, the council changes a determination, the changed determination replaces the earlier determination as from the date of the review.
(9)  A determination on a review may not be further reviewed under this section.

101   Date from which approval operates

(1)  An approval operates from the date specified for the purpose in the notice under section 99 or 100, subject to this section and section 102.
(2)  If an appeal is made (and not withdrawn) against an approval granted on the determination of an application, the approval does not operate until the date of the decision on that appeal, except where that decision is to refuse approval.
(3)  An approval is void and (except for the purposes of section 176) is taken never to have been granted if an appeal under section 176 is dismissed and approval is refused.
(4)  If a determination is made by refusing approval or if an application is taken by section 105 to have been so determined, and the decision on the appeal made under section 176 in respect of that determination has the effect of granting approval, the decision is taken to be an approval granted under this Part and the approval operates from the date of that decision.
(5)  An approval in respect of an application that is taken to have been approved under section 72 operates from the date on which it is taken to have been approved.

102   Insurance for residential building work

(1)  This section applies if the council approves (whether or not subject to conditions) of the doing of any residential building work (within the meaning of the Home Building Act 1989) other than work by an owner-builder.
(2)  The council must not forward or deliver to the applicant or any other person a copy of the plans and specifications submitted to it with the application unless:
(a)  it is satisfied that the builder or other person who is to do the residential building work has complied with the applicable requirements of Part 6 of the Home Building Act 1989, and
(b)  it has endorsed on the copy that it is so satisfied.
(3)  Even though the council has approved of the doing of any such work, the approval has no effect unless the council has so endorsed a copy of the plans and specifications and forwarded or delivered the copy to the applicant after that approval was given.
(4)  If the builder or person who is to do the residential building work is not known when the work is approved by the council, subsections (2) and (3) do not apply and subsection (5) applies instead.
(5)  The council must grant the approval subject to a condition that the builder or person who does the residential building work complies with the applicable requirements of Part 6 of the Home Building Act 1989.

102A   Evidence of insurance-related matters

(1)  A statement purporting to be signed by an owner of land and declaring that:
(a)  the owner intends to do residential building work (within the meaning of the Home Building Act 1989) on the land, and
(b)  the reasonable market cost of the labour and materials involved in the work is not high enough for the owner to need an owner-builder permit to do the work,
is, for the purpose of the council’s making an endorsement, sufficient evidence of the matter referred to in subsection (1) (b).
(2)  A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 to the effect that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purpose of the council’s making an endorsement, sufficient evidence that the person has complied with the requirements of that Part.

103   When does an approval lapse?

(1)  An approval lapses:
(a)  5 years after the date from which it operates, except as provided by paragraph (b), or
(b)  in the case of an approval that is subject to a condition under section 96 (2), 2 years after the date on which the last approval, consent or permission required to be obtained in accordance with the condition operates.
(2)  A council, in granting an approval, may vary either or both of the periods referred to in subsection (1).
(3)  Such a variation may not be made so as to cause:
(a)  (Repealed)
(b)  an approval of a kind prescribed by the regulations to lapse within the period prescribed by the regulations in relation to the approval.
(4)  This section does not prevent the extension or renewal of an approval under section 107.
(5)  In this section, vary means increase or reduce.

104   (Repealed)

105   Circumstances in which approval is taken to have been refused

(1)  If the council has not determined an application:
(a)  within the period of 40 days after the application is lodged with it, except as provided by paragraph (b), or
(b)  within the period of 80 days after the application is lodged with it in the case of an application for which the concurrence of a person or authority is required by or under this Act,
the council is, for the purposes only of section 176, taken to have determined the application by refusing approval on the date on which that period expires.
(2)  Nothing in subsection (1) prevents the council from determining an application after the expiration of the 40-day or 80-day period, whether on a review under section 100 or otherwise.
(3)  A determination under subsection (2) does not prejudice or affect the continuance or determination of an appeal made under section 176 in respect of a determination that is taken under subsection (1) to have been made, subject to subsection (4).
(4)  Where a determination under subsection (2) is made by granting approval, the council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal made under section 176 in respect of a determination that is taken by subsection (1) to have been made, withdrawn at any time before the appeal is determined.

106   Can approvals be amended?

(1)  A person to whom an approval is granted or any other person entitled to act on an approval may apply to the council to amend the approval.
(2)  Sections 78–86, 89, 97–99 and 105 apply to an application to amend an approval in the same way as they apply to an application for approval.
(3)  The council may amend an approval if:
(a)  it is satisfied that the approval as amended will be substantially the same as the original approval, and
(b)  it is satisfied that no prejudice will be caused to any person who made a submission concerning the application for the original approval, and
(c)  it has consulted with any person or authority whose concurrence to the original approval was required to be obtained and the person or authority has not, within 21 days after being consulted, objected to the amendment of the original approval.
(4)  (Repealed)
(5)  If the council amends an approval under this section, the amended approval replaces the original approval as from the date endorsed on the notice of determination of the application.
(6)  In the case of an approval granted by the Land and Environment Court, a reference in this section to the council is taken to be a reference to the Court, but no appeal lies from the Court’s determination of the application.

107   Can approvals be extended or renewed?

(1)  The council may determine to extend or renew an approval (but without changing the terms of the approval) if satisfied there is good cause for doing so.
(2)  The renewal of an approval operates as if it were an approval granted on the date of renewal.
(3)  The extension or renewal may be granted before the approval lapses or at any time within 3 months after the approval lapses.
(4)  The relevant provisions of:
(a)  sections 72, 73, 74, 78, 79, 80, 84, 85, 87, 88, 99 and 105, and
(b)  Division 1 of Part 5,
apply to an application made by the Crown or a person prescribed by the regulations referred to in section 72 (1) to extend or renew an approval in the same way as they apply to an application for an approval.
(5)  The relevant provisions of:
(a)  sections 78, 79, 80, 84, 85, 87, 88, 99 and 105, and
(b)  Division 1 of Part 5,
apply to an application made by any other person to extend or renew an approval in the same way as they apply to an application for an approval.

107A   Special provision—renewal of approvals relating to operation of sewage management systems

(1)  This section applies to an approval to operate a system of sewage management.
(2)  The council may by notice in writing (in any form determined by the council) invite any person to whom an approval to which this section applies has been granted to apply to renew the approval.
Note. For example, an invitation in writing to a person to renew an approval could be made in the form of an account or invoice.
(3)  A person to whom such an invitation is made is taken to have made an application under section 107 to renew the approval on the same terms as the original approval if the person pays any required application fee (being an approved fee under section 80).

108   Can approvals be revoked or modified?

(1)  A council may revoke or modify an approval in the circumstances set out in section 109.
(2)  A modification may take the form of the imposition of an additional condition or the variation or rescission of a condition to which the approval is subject.
(3)  Notice of a revocation of an approval or a modification of an approval that restricts or reduces the authority conferred by the approval may be served on any person who appears to the council to be acting under that authority or to be entitled to act under that authority.
(4)  A revocation or modification takes effect on the date of service of the notice of the revocation or modification or a later date specified in the notice.
(5)  At the same time as or as soon as practicable after the notice of the revocation or modification is served, the council is required to send:
(a)  a copy of the notice to each person who, in its opinion, is likely to be disadvantaged by the revocation or modification, and
(b)  a copy of the notice and the reasons for the revocation or modification to the Building Services Corporation, if the approval is for:
•  the transfer, alteration, repair or extension of water service pipes, or
•  the carrying out of sanitary plumbing work, sanitary drainage work or stormwater drainage work.
(6)  This section does not apply to an approval granted by the Land and Environment Court.

109   In what circumstances can an approval be revoked or modified?

An approval may be revoked or modified in any of the following circumstances:
(a)  if the approval was obtained by fraud, misrepresentation or concealment of facts,
(b)  for any cause arising after the granting of the approval which, had it arisen before the approval was granted, would have caused the council not to have granted the approval (or not to have granted it in the same terms),
(c)  for any failure to comply with a requirement made by or under this Act relating to the subject of the approval,
(d)  for any failure to comply with a condition of the approval.

110   Notice to be given of proposed revocation or modification

(1)  Before revoking or modifying an approval, the council must inform, by notice:
(a)  each person who, in its opinion, will be disadvantaged by the revocation or modification of the approval, and
(b)  each person and authority whose concurrence was required to the granting of the approval.
(2)  The notice must include the council’s reasons for revoking or modifying the approval.
(3)  The council must give those persons and authorities the opportunity of appearing before the council (or a person appointed by it) to show cause why the approval should not be revoked or modified.

111   Application of secs 108, 109 and 110 to the Crown

(1)  A council that proposes to revoke or modify an approval given to the Crown or a person prescribed by the regulations for the purposes of section 72 must also give notice of its proposal to the Minister.
(2)  A council must not revoke or modify such an approval except with the written consent of the Minister.

112   Entitlement to compensation

A person aggrieved by the revocation or modification of an approval in the circumstances set out in section 109 (b) may recover compensation from the council for expenditure which is rendered abortive by the revocation or modification and which was incurred pursuant to the approval during the period between the date on which the approval commenced to operate and the date specified in the relevant notice served under section 108 (4).

113   Record of approvals

(1)  A council must keep a record of approvals granted under this Part and of decisions on appeal from any determination made by it under this Part.
(2)  The record is to include the following:
•  the serial number that identifies the application for the approval
•  the date on which the application for the approval was made to the council
•  the amount of any fee payable in connection with the application
•  the date or dates on which any such fee, or any part of it, was paid to the council
•  the date from which the approval operates
•  the name and address of the person to whom the approval is granted
•  the name or address of any place in relation to which the approval is granted
•  a brief description of the subject-matter of the approval
•  any conditions to which the approval is subject
•  the duration of the approval
•  whether the approval has been revoked or modified
•  in the case of approvals concerning residential building work (within the meaning of the Building Services Corporation Act 1989), the names of licensees and owner-builders and the numbers endorsed on contractor licences and permits of which it is informed by owners of affected land.
(3)  The council may include any other information in the record.
(4)  The council must make such amendments to the record as are necessary as a consequence of any decision made by the Land and Environment Court on an appeal.
(5)  The information in the record is to be available for public inspection, without charge, at the office of the council during ordinary office hours.
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