Schedule 4 Amendments relating to certification of development
(Section 3)
4.1 Amendment of Environmental Planning and Assessment Act 1979 No 203
[3] Section 80A Imposition of conditions
Insert after section 80A (6) (c):(d) ensuring compliance with the terms of the development consent during the carrying out of any building work or subdivision work.
Insert after section 80A (7):(7A) Despite subsection (7), if the regulations make provision for or with respect to the maximum amount of security that may be required for a purpose referred to in subsection (6) (d), the security required for any such purpose is not to exceed the maximum amount determined in accordance with the regulations.
Omit section 80A (10). Insert instead:(10) The funds realised from a security may:(a) be paid out to meet any cost referred to in subsection (6) (a)–(c), and(b) be paid out to meet any cost referred to in subsection (6) (d), but only in the circumstances prescribed by the regulations.(10AA) Any balance of the funds realised from a security remaining after meeting the costs referred to in subsection (10) is to be refunded to, or at the direction of, the persons who provided the security.(10AB) A person who provides security for the purposes referred to in subsection (6) (d) is entitled to request the release of any such balance of funds realised from the security only after:(a) in the case of building work where an occupation certificate is issued:(i) the date of issue of a final occupation certificate as a result of the building work, or(ii) the date that is 12 months after the date of issue of an interim occupation certificate as a result of the building work,whichever occurs first, or(b) in the case of building work where no occupation certificate is issued—the date of the first lawful occupation or use of a building or part of a building resulting from that building work (as determined in accordance with section 109M), or(c) in the case of subdivision work—the date of issue of a subdivision certificate as a result of the subdivision work.(10AC) If the consent authority has paid out any of those funds for a purpose referred to in subsection (6) (d), the consent authority must, within 14 days after receiving a request under subsection (10AB) for the release of the funds, give written reasons to the person who provided the security as to why the consent authority considers it was entitled to use those funds.
[10] Section 98A Appeal concerning security
Insert “that relates to security of a kind referred to in section 80A (6) (a)–(c)” after “subsection (1) (b)” in section 98A (3).
Insert after section 98A (3):(4) An appeal with respect to a failure or refusal referred to in subsection (1) (b) that relates to security of a kind referred to in section 80A (6) (d) may be made within 6 months after the date after which the person who provided the security may request the release of funds realised from the security under section 80A (10AB).
Insert after section 109EA:109EB Directions by certifying authorities
(1) A reference in this section to a non-compliance in respect of an aspect of development is a reference to:(a) a failure to comply with a condition of a development consent relating to the manner in which construction of that aspect of development is carried out on the relevant site (including, for example, a condition relating to the hours during which construction may be carried out or the measures to be taken to reduce impacts on adjoining land), and(b) any matter arising during the course of carrying out that aspect of development that would prevent the issuing of a final occupation certificate or a subdivision certificate in respect of that aspect of development.(2) If a certifying authority for an aspect of development becomes aware of any non-compliance in respect of the aspect of development, the certifying authority must issue a notice in writing to the person responsible for carrying out that aspect of the development:(a) identifying the matter that has resulted or would result in the non-compliance, and(b) directing the person to take specified action within a specified period to remedy the matter.(3) If a certifying authority gives a direction under this section and the direction is not complied with within the time specified in the notice containing the direction, the certifying authority that issued the direction is, within the period prescribed by the regulations, to send a copy of the notice to the consent authority and to notify the consent authority of the fact that the direction has not been complied with.(4) The regulations may make provision for or with respect to the following:(a) the procedure for issuing notices under this section,(b) requirements in relation to follow-up action,(c) the keeping of records in relation to notices given and follow-up action taken,(d) requirements for any matter or record relating to a notice or follow-up action to be notified to specified persons.
[18] Section 109L Accredited certifiers may issue notices requiring work to be carried out
Omit the section.
Insert after section 109P:109PA Certifying authorities may apply for advice
(1) Before issuing a construction certificate for building work or subdivision work, a certifying authority may make an application to the consent authority for advice as to whether, in the opinion of the consent authority, the design and construction of any building or work to which the certificate relates is consistent with the relevant development consent.(2) Before issuing a final occupation certificate for a building or part of a building, a certifying authority may make an application to the consent authority for advice as to whether, in the opinion of the consent authority, the design and construction of the building is consistent with the relevant development consent or complying development certificate.(3) If the consent authority does not deal with an application made to it under this section within 21 days after receiving the application, the consent authority is taken to have given advice that the building, part of the building or work concerned is consistent with the relevant development consent or complying development certificate.(4) If a consent authority has given advice under this section that the design and construction of a building, part of a building or work is consistent with the relevant development consent or complying development certificate, a construction certificate or final occupation certificate issued in reliance on that advice may not be challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings at the request of the consent authority on the basis that the design and construction of the building (or part) or work concerned is not consistent with the relevant development consent or complying development certificate.(5) The regulations may make provision for or with respect to applications for advice under this section (including the information to be provided with such applications), the form in which advice is to be given under this section and fees in connection with the making of such applications and the giving of advice.(6) In this section:(a) a reference to the design and construction of a building is, in relation to the issue of a construction certificate, a reference to the design and construction of the building as depicted in the plans and specifications furnished to the certifying authority and as described in any other information furnished to the certifying authority in accordance with the regulations, and(b) a reference to a building, part of a building or work being consistent with a development consent or complying development certificate is a reference to the building, part or work being consistent with the development consent or complying development certificate as determined in accordance with the regulations (if any).
[32] Schedule 6 Savings, transitional and other provisions
Insert in appropriate order in Part 21 (as inserted by Schedule 5.1 [12]):Division 5 Provisions relating to certification
Section 109L is taken to continue to have effect in relation to notices served under that section before its repeal.The amendment made to section 109ZK by the amending Act does not apply to any building work or subdivision work commenced before the commencement of the amendment.
4.2 Amendment of Environmental Planning and Assessment Regulation 2000
[4] Clause 145 Compliance with development consent and Building Code of Australia
Omit “not inconsistent with” wherever occurring in clause 145 (1) (a) and (2).Insert instead “consistent with”.
Insert after clause 154C:(Repealed)154D Compliance with development consent
(1) If a certifying authority issues an interim occupation certificate for a building or part of a building where the design and construction of the building or part are not consistent with the relevant development consent or complying development certificate, the certifying authority must record on the certificate information identifying the nature and extent of the inconsistency.(2) A certifying authority must not issue a final occupation certificate for a building or part of a building unless the design and construction of the building or part are consistent with the relevant development consent or complying development certificate.