An Act to institute a system of environmental planning and assessment for the State of New South Wales.

Part 1 Preliminary

1   Name of Act

This Act may be cited as the Environmental Planning and Assessment Act 1979.

2   Commencement

(1)  This section and sections 1 and 155 shall commence on the date of assent to this Act.

(2)  Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.

3   (Repealed)

4   Definitions

(1)  In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

accredited certifier, in relation to matters of a particular kind, means the holder of a certificate of accreditation as an accredited certifier under the Building Professionals Act 2005 in relation to those matters.

advertised development means development, other than designated development, that is identified as advertised development by the regulations, an environmental planning instrument or a development control plan.
Advertised development includes any development for the purposes of a scheduled activity at any premises under the Protection of the Environment Operations Act 1997 that is not designated development.

advertisement means a sign, notice, device or representation in the nature of an advertisement visible from any public place or public reserve or from any navigable water.

advertising structure means a structure used or to be used principally for the display of an advertisement.

affordable housing means housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument.

alignment means the boundary line between any public place and any land abutting that place.

area has the same meaning as it has in the Local Government Act 1993.

associated structure has the same meaning as in the Local Government Act 1993.

brothel means a brothel within the meaning of the Restricted Premises Act 1943, other than premises used or likely to be used for the purposes of prostitution by no more than one prostitute.

building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure.

Building Code of Australia means the document, published by or on behalf of the Australian Building Codes Board, that is prescribed for purposes of this definition by the regulations, together with:

(a)  such amendments made by the Board, and

(b)  such variations approved by the Board in relation to New South Wales,

      as are prescribed by the regulations.

Building Professionals Board means the Building Professionals Board constituted under the Building Professionals Act 2005.

building work means any physical activity involved in the erection of a building.

bush fire prone land, in relation to an area, means land recorded for the time being as bush fire prone land on a bush fire prone land map for the area.

bush fire prone land map for an area means a map for the area certified as referred to in section 146 (2).

certifying authority means a person who:

(a)  is authorised by or under section 85A to issue complying development certificates, or

(b)  is authorised by or under section 109D to issue Part 4A certificates.

change of building use means a change of use of a building from a use that the Building Code of Australia recognises as appropriate to one class of building to a use that the Building Code of Australia recognises as appropriate to a different class of building.

compliance certificate means a certificate referred to in section 109C (1) (a).

complying development is development for which provision is made as referred to in section 76A (5).

complying development certificate means a complying development certificate referred to in section 85.

consent authority, in relation to a development application or an application for a complying development certificate, means:

(a)  the council having the function to determine the application, or

(b)  if a provision of this Act, the regulations or an environmental planning instrument specifies a Minister, the Planning Assessment Commission, a joint regional planning panel or public authority (other than a council) as having the function to determine the application—that Minister, Commission, panel or authority, as the case may be.

construction certificate means a certificate referred to in section 109C (1) (b).

control, in relation to development or any other act, matter or thing, means:

(a)  consent to, permit, regulate, restrict or prohibit that development or that other act, matter or thing, either unconditionally or subject to conditions, or

(b)  confer or impose on a consent authority functions with respect to consenting to, permitting, regulating, restricting or prohibiting that development or that other act, matter or thing, either unconditionally or subject to conditions.

corporation means the corporation constituted by section 8 (1).

council has the same meaning as it has in the Local Government Act 1993.

Court means the Land and Environment Court.

critical habitat has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.

critical stage inspections means the inspections prescribed by the regulations for the purposes of section 109E (3) (d).

Crown land has the same meaning as in the Crown Lands Act 1989.

Department means the Department of Planning.

designated development has the meaning given by section 77A.

development means:

(a)  the use of land, and

(b)  the subdivision of land, and

(c)  the erection of a building, and

(d)  the carrying out of a work, and

(e)  the demolition of a building or work, and

(f)  any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,

      but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

development application means an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate.

development area means land constituted as a development area in accordance with Division 1 of Part 7.

development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate.

development control plan (or DCP) means a development control plan made, or taken to have been made, under Division 6 of Part 3 and in force.

development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:

(a)  the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,

(b)  the proportion or percentage of the area of a site which a building or work may occupy,

(c)  the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work,

(d)  the cubic content or floor space of a building,

(e)  the intensity or density of the use of any land, building or work,

(f)  the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment,

(g)  the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles,

(h)  the volume, nature and type of traffic generated by the development,

(i)  road patterns,

(j)  drainage,

(k)  the carrying out of earthworks,

(l)  the effects of development on patterns of wind, sunlight, daylight or shadows,

(m)  the provision of services, facilities and amenities demanded by development,

(n)  the emission of pollution and means for its prevention or control or mitigation, and

(o)  such other matters as may be prescribed.

Director-General means the Director-General of the Department.

ecological community has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.

ecologically sustainable development has the same meaning it has in section 6 (2) of the Protection of the Environment Administration Act 1991.

endangered ecological community means an endangered ecological community within the meaning of the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.

endangered population means an endangered population within the meaning of the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.

endangered species means an endangered species within the meaning of the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.

environment includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings.

environmental planning instrument means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force.

exempt development is development for which provision is made as referred to in section 76 (2).

functions includes powers, authorities and duties.

habitat has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.

independent hearing and assessment panel means a panel constituted under section 23I.

integrated development has the meaning given by section 91.

joint regional planning panel means a joint regional planning panel constituted under section 23G.

land includes:

(a)  the sea or an arm of the sea,

(b)  a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal, and

(c)  a river, stream or watercourse, whether tidal or non-tidal, and

(d)  a building erected on the land.

local environmental plan (or LEP)—see section 24 (2).

manufactured home has the same meaning as in the Local Government Act 1993.

moveable dwelling has the same meaning as in the Local Government Act 1993.

objector means a person who has made a submission under section 79 (5) by way of objection to a development application for consent to carry out designated development.

occupation certificate means a certificate referred to in section 109C (1) (c).

occupier includes a tenant or other lawful occupant of premises, not being the owner.

officer of the Department means an officer or employee of the Department, and includes the Director-General.

owner has the same meaning as in the Local Government Act 1993 and includes, in Division 2A of Part 6, in relation to a building, the owner of the building or the owner of the land on which the building is erected.

owner-builder has the same meaning as in the Home Building Act 1989.

Part 4A certificate means a certificate referred to in section 109C (1) (a), (b), (c) or (d).

person includes an unincorporated group of persons or a person authorised to represent that group.

place of shared accommodation includes a boarding house, a common lodging house, a house let in lodgings and a backpackers hostel.

Planning Assessment Commission means the Planning Assessment Commission constituted under section 23B.

planning assessment panel means a panel listed in Schedule 5B.

population has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.

premises means any of the following:

(a)  a building of any description or any part of it and the appurtenances to it,

(b)  a manufactured home, moveable dwelling and associated structure,

(c)  land, whether built on or not,

(d)  a tent,

(e)  a swimming pool,

(f)  a ship or vessel of any description (including a houseboat).

principal certifying authority means a principal certifying authority appointed under section 109E.

principal contractor for building work means the person responsible for the overall co-ordination and control of the carrying out of the building work.

Note. If any residential building work is involved, the principal contractor must be the holder of a contractor licence under the Home Building Act 1989.

prohibited development means:

(a)  development the carrying out of which is prohibited on land by the provisions of an environmental planning instrument that apply to the land, or

(b)  development that cannot be carried out on land with or without development consent.

provision for fire safety means provision for any or all of the following:

(a)  the safety of persons in the event of fire,

(b)  the prevention of fire,

(c)  the detection of fire,

(d)  the suppression of fire,

(e)  the prevention of the spread of fire.

public authority means:

(a)  a public or local authority constituted by or under an Act, or

(b)  a government Department, or

(c)  a statutory body representing the Crown, or

(d)  a chief executive officer within the meaning of the Public Sector Management Act 1988 (including the Director-General), or

(e)  a statutory State owned corporation (and its subsidiaries) within the meaning of the State Owned Corporations Act 1989, or

(f)  a chief executive officer of a corporation or subsidiary referred to in paragraph (e), or

(g)  a person prescribed by the regulations for the purposes of this definition.

public place has the same meaning as in the Local Government Act 1993.

public reserve has the same meaning as in the Local Government Act 1993.

public road has the same meaning as in the Roads Act 1993.

recovery plan has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.

region means any land that the Minister, under subsection (6), declares to be a region, except as provided by subsection (6A).

regulation means a regulation made under this Act.

relevant planning authority:

(a)  in relation to environmental planning instruments—see section 54, or

(b)  in relation to development control plans—see section 74B.

residential building work has the same meaning as in the Home Building Act 1989.

species has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.

species impact statement has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.

State environmental planning policy (or SEPP)—see section 24 (2).

subdivision certificate means a certificate referred to in section 109C (1) (d).

subdivision of land has the meaning given by section 4B.

subdivision work means any physical activity authorised to be carried out under the conditions of a development consent for the subdivision of land, as referred to in section 81A (3).

temporary structure includes a booth, tent or other temporary enclosure (whether or not part of the booth, tent or enclosure is permanent), and also includes a mobile structure.

threat abatement plan has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.

threatened species has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.

threatened species, populations and ecological communities and threatened species, population or ecological community have the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994, except as provided by section 5D.

Note. Section 5D excludes vulnerable ecological communities from this expression.

threatening process has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.

vulnerable ecological community has the same meaning as in the Threatened Species Conservation Act 1995.

vulnerable species has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.

(2)  A reference in this Act to:

(a)  the use of land includes a reference to a change of building use, and

(b)  the erection of a building includes a reference to:

(i)  the rebuilding of, the making of alterations to, or the enlargement or extension of, a building, or

(ii)  the placing or relocating of a building on land, or

(iii)  enclosing a public place in connection with the construction of a building, or

(iv)  erecting an advertising structure over a public road, or

(v)  extending a balcony, awning, sunshade or similar structure or an essential service pipe beyond the alignment of a public road, and

(c)  the carrying out of a work includes a reference to:

(i)  the rebuilding of, the making of alterations to, or the enlargement or extension of, a work, or

(ii)  enclosing a public place in connection with the carrying out of a work, and

(d)  a work includes a reference to any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act, and

(e)  the demolition of a building or work includes a reference to enclosing a public place in connection with the demolition of a building or work, and

(f)  the carrying out of development includes a reference to the use of land or a building, the subdivision of land, the erection of a building, the carrying out of a work, the demolition of a building or work or the doing of any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument.

(3)  Where functions are conferred or imposed by or under this Act on a council:

(a)  except as provided in paragraph (b), those functions may be exercised in respect of an area by the council of that area, or

(b)  if the functions are conferred or imposed in respect of part of an area, those functions may be exercised in respect of that part by the council of that area.

(3A)  Where functions are conferred or imposed by or under this Act on a public authority, being a government Department or some other unincorporated group of persons, those functions may be exercised by a person who is authorised to exercise those functions on behalf of the public authority.

(4)  A reference in this Act to the exercise of a function includes, where that function is a duty, a reference to the performance of that duty.

(5)  A reference in this Act to an authority or person preparing a document includes a reference to the authority or person causing the document to be prepared on the authority’s or person’s behalf.

(6)  The Minister may, by order published in the Gazette, declare any land, whether or not consisting of areas or parts of areas, to be a region for the purposes of this Act.

Editorial note. For orders pursuant to this subsection see Gazettes of 13.11.1981, p 5819; 11.12.1981, p 6381 and the declaration of the Shire of Snowy River as a Region and Gazettes No 46 of 26.3.1982, p 1334; No 85 of 25.6.1982; No 142 of 5.10.1984; No 40 of 15.2.1985, p 729; No 88 of 31.5.1985, p 2430; No 60 of 11.4.1986, p 1593; No 81 of 16.5.1986, pp 2186, 2193; No 60 of 27.3.1987, p 1666; No 199 of 31.12.1987, p 7354; No 38 of 7.4.1989, p 1841; No 142 of 11.10.1991, p 8758; No 60 of 15.5.1992, p 3337; No 65 of 6.5.1994, p 2081; No 5 of 20.1.1995, p 418; No 57 of 10.5.1996, p 2166; No 115 of 11.10.1996, p 6927; No 175 of 16.11.2001, p 9268; No 137 of 5.9.2003, p 9146 and No 174 of 31.10.2003, p 10329.

(6A)  However, for the purposes of sections 5A, 79B (5) and 112D, a region has the same meaning as in the Threatened Species Conservation Act 1995 or (subject to section 5C) Part 7A of the Fisheries Management Act 1994.

(7)  A reference in this Act to a direction is a reference to a direction in writing.

(7A)  A power, express or implied, of the Minister to make a declaration under this Act includes a power to revoke or amend the declaration.

(8)  A power, express or implied, to give a direction under this Act includes a power to revoke or amend the direction.

(8A)  If an environmental planning instrument confers a power on any person or body to make an order (whether or not the order must be in writing), the power includes a power to amend or repeal an order made in the exercise of the power.

(9)  A reference in this Act to a prescribed form includes a reference to a form that is to the effect of that prescribed form.

(10)  A reference in this Act to any act, matter or thing as specified in an environmental planning instrument includes a reference to any act, matter or thing that is of a class or description as specified in such an instrument.

(11)  A reference in this Act to the granting of consent includes a reference to the granting of consent subject to conditions.

(12)  Without affecting the generality of section 8 (b) of the Interpretation Act 1987, a reference in this Act to the owner or lessee of land includes a reference to joint or multiple owners or lessees of land.

(13)  Notes in this Act are explanatory notes and do not form part of this Act.

(14)  A reference in this Act to an original document, map or plan includes a reference to a document, map or plan created, or a copy of which is kept, in electronic form.

4A   (Repealed)

4B   Subdivision of land

(1)  For the purposes of this Act, subdivision of land means the division of land into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected:

(a)  by conveyance, transfer or partition, or

(b)  by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition.

(2)  Without limiting subsection (1), subdivision of land includes the procuring of the registration in the office of the Registrar-General of:

(a)  a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919, or

(b)  a strata plan or a strata plan of subdivision within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.

Note. The definition of plan of subdivision in section 195 of the Conveyancing Act 1919 extends to plans of subdivision for lease purposes (within the meaning of section 23H of that Act) and to various kinds of plan under the Community Land Development Act 1989.

(3)  However, subdivision of land does not include:

(a)  a lease (of any duration) of a building or part of a building, or

(b)  the opening of a public road, or the dedication of land as a public road, by the Crown, a statutory body representing the Crown or a council, or

(c)  the acquisition of land, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or

(d)  a division of land effected by means of a transaction referred to in section 23G of the Conveyancing Act 1919, or

(e)  the procuring of the registration in the office of the Registrar-General of:

(i)  a plan of consolidation, a plan of identification or a miscellaneous plan within the meaning of section 195 of the Conveyancing Act 1919, or

(ii)  a strata plan of consolidation or a building alteration plan within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.

5   Objects

The objects of this Act are:

(a)  to encourage:

(i)  the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii)  the promotion and co-ordination of the orderly and economic use and development of land,

(iii)  the protection, provision and co-ordination of communication and utility services,

(iv)  the provision of land for public purposes,

(v)  the provision and co-ordination of community services and facilities, and

(vi)  the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and

(vii)  ecologically sustainable development, and

(viii)  the provision and maintenance of affordable housing, and

(b)  to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and

(c)  to provide increased opportunity for public involvement and participation in environmental planning and assessment.

5A   Significant effect on threatened species, populations or ecological communities, or their habitats

(1)  For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats:

(a)  each of the factors listed in subsection (2),

(b)  any assessment guidelines.

(2)  The following factors must be taken into account in making a determination under this section:

(a)  in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,

(b)  in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction,

(c)  in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed:

(i)  is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii)  is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

(d)  in relation to the habitat of a threatened species, population or ecological community:

(i)  the extent to which habitat is likely to be removed or modified as a result of the action proposed, and

(ii)  whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and

(iii)  the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality,

(e)  whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly),

(f)  whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan,

(g)  whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.

(3)  In this section:

assessment guidelines means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995 or, subject to section 5C, section 220ZZA of the Fisheries Management Act 1994.

key threatening process has the same meaning as in the Threatened Species Conservation Act 1995 or, subject to section 5C, Part 7A of the Fisheries Management Act 1994.

5B   Planning authorities to have regard to register of critical habitat

(1)  Each planning authority must have regard to the register of critical habitat kept by the Director-General of National Parks and Wildlife under the Threatened Species Conservation Act 1995 when exercising its functions under this Act.

(2)  In this section, planning authority in relation to a function under this Act means:

(a)  in the case of a function relating to a development application—the consent authority (or a person or body taken to be a consent authority), and

(b)  in the case of any other function—the public authority or other person responsible for exercising the function.

5C   Application of Act with respect to threatened species conservation—fish and marine vegetation

(1)  A reference in this Act to the Threatened Species Conservation Act 1995, in connection with critical habitat, or threatened species, populations or ecological communities, or their habitats, is to be construed in accordance with this section.

(2)  To the extent that the matter concerns critical habitat of fish or marine vegetation, or threatened species, populations or ecological communities of fish or marine vegetation, or their habitats:

(a)  a reference to the Threatened Species Conservation Act 1995 is taken to be a reference to Part 7A of the Fisheries Management Act 1994, and

(b)  a reference to the Minister administering the Threatened Species Conservation Act 1995 is taken to be a reference to the Minister administering the Fisheries Management Act 1994, and

(c)  a reference to the Director-General of National Parks and Wildlife is taken to be a reference to the Director of NSW Fisheries.

(3)  In this section:

fish has the same meaning as in Part 7A of the Fisheries Management Act 1994.

marine vegetation has the same meaning as in Part 7A of the Fisheries Management Act 1994.

5D   Application of Act to vulnerable ecological communities

(1)  In this Act, a reference to threatened species, populations and ecological communities or threatened species, population or ecological community (however expressed) does not include a reference to any vulnerable ecological community.

(2)  However, this section does not affect the application of this Act to any threatened species or endangered population that forms part of a vulnerable ecological community.

Note. Vulnerable ecological communities are generally excluded from the provisions of this Act relating to threatened species, populations and ecological communities, including provisions that require the concurrence of the Director-General of National Parks and Wildlife or the Minister administering the Threatened Species Conservation Act 1995, or the preparation of a species impact statement, in respect of development or an activity that is likely to have a significant effect on threatened species, populations or ecological communities (subject to subsection (2) above). However, vulnerable ecological communities are relevant to the preparation of environmental planning instruments under section 26.

6   Act to bind Crown

This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

Part 2 Administration

Division 1 The Minister

7   Responsibility of Minister

Without affecting the functions that the Minister has apart from this section, the Minister is charged with the responsibility of promoting and co-ordinating environmental planning and assessment for the purpose of carrying out the objects of this Act and, in discharging that responsibility, shall have and may exercise the following functions:

(a)  to carry out research into problems of environmental planning and assessment and disseminate information including the issue of memoranda, reports, bulletins, maps or plans relating to environmental planning and assessment,

(b)  to advise councils upon all matters concerning the principles of environmental planning and assessment and the implementation thereof in environmental planning instruments,

(c)  to promote the co-ordination of the provision of public utility and community services and facilities within the State,

(d)  to promote planning of the distribution of population and economic activity within the State,

(e)  to investigate the social aspects of economic activity and population distribution in relation to the distribution of utility services and facilities, and

(f)  to monitor progress and performance in environmental planning and assessment, and to initiate the taking of remedial action where necessary.

8   Minister to be corporation sole for certain purposes

(1)  The Minister is, for the purpose of exercising those functions expressed to be conferred or imposed on the corporation by or under this or any other Act, hereby incorporated as a corporation sole with the corporate name “Minister administering the Environmental Planning and Assessment Act 1979”.

(2)  The corporation:

(a)  has perpetual succession,

(b)  shall have an official seal,

(c)  may take proceedings, and be proceeded against, in its corporate name,

(d)  may do and suffer all other things that a body corporate generally may, by law, do and suffer and that are necessary for or incidental to the purposes for which the corporation is constituted, and

(e)  is, for the purpose of any Act, a statutory body representing the Crown.

(3)  The seal of the corporation shall not be affixed to any instrument or document except in the presence of the Minister, or an officer of the Department for the time being authorised by the Minister for the purpose, who shall attest by his or her signature the fact and date of the affixing of the seal.

(4)  All courts and persons acting judicially:

(a)  shall take judicial notice of the seal of the corporation that has been affixed to any instrument or document,

(b)  shall, until the contrary is proved, presume that the seal was properly affixed.

(5)  For the purposes of section 81 of the Public Works Act 1912, the corporation shall be deemed to be a Constructing Authority.

9   Power to acquire land etc

(1)  The corporation may, for the purposes of this Act or pursuant to any function conferred or imposed on the Minister or the Director-General by any environmental planning instrument, acquire land by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

(2)  Without limiting the generality of subsection (1), the corporation may acquire in any manner authorised by that subsection:

(a)  any land to which an environmental planning instrument applies and which the Minister considers should be made available in the public interest for any purpose,

(b)  any land of which that proposed to be acquired under this Part forms part, or

(c)  any land adjoining or in the vicinity of any land proposed to be acquired under this Part, or

(d)  a leasehold or any other interest in land.

(3)  The corporation may acquire, by gift inter vivos, devise or bequest, any property for the purposes of this Act and may agree to the condition of any such gift, devise or bequest.

(4)  The rule of law against remoteness of vesting shall not apply to any such condition to which the corporation has agreed.

(5)  Where the corporation acquires property under subsection (3):

(a)  neither an instrument that effects the acquisition nor any agreement pursuant to which the property is acquired is chargeable with duty under the Stamp Duties Act 1920, and

(b)  the property, or the value of the property, shall not be included in the dutiable estate of the donor or testator for the purposes of assessing death duty under that Act.

10   Application of Public Works Act 1912

(1)  For the purposes of the Public Works Act 1912, any acquisition of land under section 9 is taken to be for an authorised work and the corporation is, in relation to that authorised work, taken to be the Constructing Authority.

(2)  Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in respect of works constructed under this Act.

11   Functions of corporation

(1)  For the purposes of this Act, the corporation may, in such manner and subject to such terms and conditions as it thinks fit, sell, lease, exchange or otherwise dispose of or deal with land vested in the corporation and grant easements or rights-of-way over that land or any part thereof.

(2)  Without affecting the generality of subsection (1), the corporation may, in any contract for the sale of land vested in it, include conditions for or with respect to:

(a)  the erection of any building on that land by the purchaser within a specified period,

(b)  conferring on the corporation an option or right to repurchase that land if the purchaser has failed to comply with a condition referred to in paragraph (a),

(c)  conferring on the corporation an option or right to repurchase that land if the purchaser wishes to sell or otherwise dispose of that land before the expiration of a specified period or requiring the purchaser to pay to the corporation a sum determined in a specified manner where the corporation does not exercise that option or right, or

(d)  the determination of the repurchase price payable by the corporation pursuant to a condition referred to in paragraph (b) or (c).

(3)  A condition included in a contract of sale pursuant to subsection (2) does not merge in the transfer of title to the land, the subject of the contract of sale, on completion of the sale.

(4)  In addition to other functions conferred or imposed on the corporation by or under this or any other Act, the corporation may, for the purposes of this Act:

(a)  manage land vested in the corporation,

(b)  cause surveys to be made and plans of surveys to be prepared in relation to land vested in the corporation or in relation to any land proposed to be acquired by the corporation,

(c)  (Repealed)

(d)  demolish, or cause to be demolished, any building on land vested in the corporation of which it has exclusive possession,

(e)  provide, or arrange, on such terms and conditions as may be agreed upon for the location or relocation of utility services within or adjoining or in the vicinity of land vested in the corporation,

(f)  subdivide and re-subdivide land and consolidate subdivided or re-subdivided land vested in the corporation,

(g)  set out and construct roads on land vested in the corporation or on land of which the corporation has exclusive possession, or on any other land with the consent of the person in whom it is vested,

(h)  erect, alter, repair and renovate buildings on and make other improvements to or otherwise develop land vested in the corporation or any other land, with the consent of a person in whom it is vested,

(i)  cause any work to be done on or in relation to any land vested in the corporation or any other land, with the consent of the person in whom it is vested, for the purpose of rendering it fit to be used for any purpose for which it may be used under any environmental planning instrument which applies to the land, and

(j)  by notification published in the Gazette, dedicate any land vested in the corporation as a reserve for public recreation or other public purposes and fence, plant and improve any such reserve.

(5)  (Repealed)

(6)  In the exercise of any function under subsection (4) (g), consultations are to be held with the Roads and Traffic Authority, the relevant council and such other persons as the Minister determines.

(7)  In relation to any land (whether vested in the corporation or not), the corporation may exercise any function that is necessary or convenient to be exercised in, or for any purpose of, the application of any part of a Development Fund referred to in Division 1 of Part 7.

12   Notification of interests

(1)  The Registrar-General shall, at the request of the corporation made in a manner approved by the Registrar-General and on payment of the fee prescribed under the Real Property Act 1900, make, in the Register kept under that Act, a recording appropriate to signify:

(a)  that land specified in the request is held subject to a condition authorised under section 11 (2), or

(b)  that a recording made pursuant to paragraph (a) has ceased to have effect.

(2)  The corporation shall not make a request pursuant to subsection (1) (a) except for the purpose of ensuring compliance with the conditions in the contract of sale under which the land was sold, but the Registrar-General shall not be concerned to inquire whether any such request has been made for that purpose.

(3)  Where a recording pursuant to subsection (1) (a) has been made in respect of any land, the Registrar-General shall not register under the Real Property Act 1900 a transfer of that land to or by a person other than the corporation unless it would be so registrable if this Part had not been enacted and unless:

(a)  a recording pursuant to subsection (1) (b) has been made in respect of the land, or

(b)  the consent of the corporation to the transfer has been endorsed thereon.

(4)  When a recording is made pursuant to subsection (1) in respect of any land, the Director-General shall notify the council in whose area the land is situated of the recording.

Division 2 The Director-General

13   Director-General of Department of Infrastructure, Planning and Natural Resources

(1)  (Repealed)

(2)  The Director-General shall, in the exercise of any function conferred upon the Director-General by or under this Act (except in relation to the contents of a recommendation or report made by the Director-General to the Minister), be subject to the control and direction of the Minister.

(3)  (Repealed)

(4)  A reference in any Act or statutory instrument, or in any other instrument, to the Director of Environment and Planning or to the Director of Planning or to the Director-General of the Department of Urban Affairs and Planning is to be read as a reference to the Director-General.

(5)  A reference in any environmental planning instrument, or any regulation or other instrument made under this Act, to the Director is taken to be a reference to the Director-General.

14   (Repealed)

15   Functions of the Director-General

In addition to the functions conferred or imposed on the Director-General by or under this or any other Act, the Director-General may, for the purposes of this Act:

(a)  submit to the Minister such proposals with respect to environmental planning and assessment as the Director-General considers necessary or appropriate, including proposals for the development and use of land, whether or not in conjunction with the provision of utility services and public transport facilities, and

(b)  consider and furnish reports to and advise and make recommendations to the Minister upon any matter or proposal relating to the development and use of land or to environmental planning and assessment which may be referred to the Director-General by the Minister.

Division 3 The Department

16   (Repealed)

17   Use of services of public authorities

For the purpose of exercising any functions of the Minister, corporation, Department or Director-General under this or any other Act, the Director-General may, with the approval of the Minister and of the public authority concerned and on such terms as may be arranged, make use of the services of any officers, employees or servants of any public authority.

Division 4

18(Repealed)

Division 5 Committees

19–21   (Repealed)

22   Establishment of other committees

(1)  The Minister or Director-General may establish committees, in addition to those established by this Act.

(2)  The functions of a committee established under subsection (1) are to be as specified in the instrument by which the committee is established, and (without limitation) may include:

(a)  the investigation of any matter relevant to the administration or execution of this Act, and

(b)  the preparation of advice, opinions or recommendations with respect to any such matter for the Minister, the Director-General, a consent authority or any other person or body engaged in the administration of this Act.

(3)  The person who establishes a committee under this section may appoint one of the members as Chairperson of the committee.

(4)  The regulations may make provision for or with respect to the following matters:

(a)  the procedures of committees in exercising their functions,

(b)  the remuneration payable to committee members and alternate members,

(c)  the appointment of alternate members for committee members and the functions of alternate members,

(d)  the appointment and procedures of subcommittees in exercising their functions.

(5)  A committee established under subsection (1) is, for the purpose of any Act, a statutory body representing the Crown.

Division 6 Delegation

23   Delegation

(1)  The Minister, corporation or Director-General may, by instrument in writing, under seal (in the case of the corporation), delegate any of the Minister’s, the corporation’s or the Director-General’s functions conferred or imposed by or under this or any other Act as are specified in the instrument to:

(a)  any officer of the Department,

(b)  any officer, employee or servant of whose services the Director-General makes use in pursuance of this or any other Act,

(c)  (Repealed)

(c1)  a development corporation under the Growth Centres (Development Corporations) Act 1974 or an officer or employee of any such corporation for the purposes of that Act,

(c2)  any other public authority or an officer or employee of any other public authority,

(d)  a council,

(e)  an officer or employee of a council,

(f)  the Planning Assessment Commission, or

(g)  a joint regional planning panel,

      and may, by such an instrument, revoke wholly or in part any such delegation.

(1A)  The Planning Assessment Commission may, by instrument in writing and with the approval of the Minister, delegate any of the Commission’s functions conferred or imposed by or under this or any other Act.

(1B)  A joint regional planning panel may, by instrument in writing and with the approval of the Minister, delegate any of the panel’s functions conferred or imposed by or under this or any other Act to a council for an area situated wholly or partly in a part of the State for which the panel is appointed.

(2)  A function, the exercise of which has been delegated under this section, may, while the delegation remains unrevoked, be exercised from time to time in accordance with the terms of the delegation.

(3)  A delegation under this section may be made subject to such conditions or limitations as to the exercise of any of the functions delegated, or as to time or circumstance, as may be specified in the instrument of delegation.

(4)  Notwithstanding any delegation under this section, the Minister, corporation, Director-General, Commission or panel, as the case may be, may continue to exercise all or any of the functions delegated.

(5)  Any act or thing done or suffered by a delegate while acting in the exercise of a delegation under this section shall have the same force and effect as if the act or thing had been done or suffered by the Minister, corporation, Director-General, Commission or panel, as the case may be, and shall be deemed to have been done or suffered by the Minister, corporation, Director-General, Commission or panel, as the case may be.

(6)  An instrument purporting to be signed by a delegate of the Minister, corporation, Director-General, Commission or panel, in the capacity as such a delegate, shall in all courts and before all persons acting judicially be received in evidence as if it were an instrument executed by the Minister, corporation, Director-General, Commission or panel, as the case may be, under seal (in the case of the corporation), and, until the contrary is proved, shall be deemed to be an instrument signed by a delegate of the Minister, corporation, Director-General, Commission or panel, as the case may be, under this section.

(7)  The Director-General shall cause to be published in the Gazette a notice setting out the details of any instrument referred to in subsection (1), but this subsection does not affect the provisions of subsection (1).

(8)  Nothing in this section authorises the delegation of:

(a)  the power of delegation conferred by this section, or

(a1)  the function of the Minister under Part 3A of determining whether to approve under section 75J the carrying out of a critical infrastructure project or under section 75O the concept plan for a critical infrastructure project, or

(b)  any function of the Minister conferred by section 80 (7), 117 or 118 or by section 130 (4).

(9)  Any matter or thing done and any contract entered into by a person acting in accordance with a delegation under this section shall not, if the matter or thing was done or the contract was entered into in good faith for the purpose of exercising the function delegated, subject the person to any action, liability, claim or demand.

Part 2A Other planning bodies

Division 1 Preliminary

23A   Definitions

In this Part:

Commission means the Planning Assessment Commission.

regional panel means a joint regional planning panel.

Division 2 Planning Assessment Commission

23B   Planning Assessment Commission

(1)  There is constituted by this Act a body corporate with the corporate name of the Planning Assessment Commission of New South Wales.

(2)  The Commission has such functions as are conferred or imposed on it by or under this or any other Act.

(3)  The Commission is not subject to the direction or control of the Minister, except in relation to the procedures of the Commission and to the extent specifically provided for in this Act.

(4)  The Commission is a statutory body representing the Crown.

Note. By virtue of section 13A of the Interpretation Act 1987, a statutory body representing the Crown has the status, privileges and immunities of the Crown.

(5)  Schedule 3 has effect with respect to the Commission.

23C   Chairperson of Commission

The work of the Commission is, subject to this Act and the regulations, to be allocated by the chairperson of the Commission.

Note. The chairperson is appointed under Schedule 3.

23D   Functions of Commission

(1)  The Commission has the following functions:

(a)  to determine applications for the approval of projects and concept plans under Part 3A, if those matters are delegated to it by the Minister,

(b)  if requested to do so by the Minister:

(i)  to advise the Minister as to planning or development matters, environmental planning instruments or the administration or implementation of the provisions of this Act, or any related matter, and

(ii)  to review any aspect of a project, or a concept plan, under Part 3A, and

(iii)  to review all or any of the environmental aspects of proposed development the subject of a development application (whether or not it is designated development), or a part of any such proposed development, and

(iv)  to review all or any of the environmental aspects of an activity referred to in section 112 (1), or of a part of any such activity, and

(v)  to review a proposal to constitute, alter or abolish a development area under section 132 or 133,

(c)  any function of a regional panel, an independent hearing and assessment panel or a planning assessment panel conferred on it by order in writing by the Minister,

(d)  if a regional panel has not been appointed for any part of the State, any function that is conferred on a regional panel under an environmental planning instrument applicable to that part or that is otherwise conferred on a regional panel under this Act.

(2)  For the purposes of subsection (1) (c) and (d), the Commission has all the functions of the panel concerned.

(3)  The Commission cannot employ any staff.

Note. Staff to enable the Commission to exercise its functions may be employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the Government Service.

(4)  However, the Commission may:

(a)  arrange, with the approval of the Director-General, for the use of the services of any staff (by secondment or otherwise) or facilities of a Division of the Government Service or a public authority, and

(b)  with the approval of the Director-General, engage such consultants as it requires to exercise its functions.

23E   Reviews by, and procedures of, Commission

The regulations may make provision for or with respect to the following:

(a)  the procedures of the Commission, including the procedures for reviews relating to any or all, or a class, of its functions,

(b)  without limiting paragraph (a), the circumstances in which public hearings are to be held by the Commission,

(c)  without limiting paragraph (a), providing that parties are not to be represented (whether by an Australian legal practitioner or any other person) or are only to be represented in specified circumstances,

(d)  the conferral on the Commission of power to require a person to give evidence or produce documents for the purposes of a review or the exercise of any of its other functions,

(e)  additional procedural requirements relating to hearings involving a proposed development or activity that may involve the need for an approval under the Water Management Act 2000 or a licence under the Water Act 1912,

(f)  reports of the Commission’s findings and recommendations,

(g)  the making of findings and recommendations of the Commission public,

(h)  the provision of information by the Commission.

23F   No appeals against decisions by Commission after public hearings

(1)  This section has effect despite any other provision of this Act or the regulations.

(2)  An appeal under this Act may not be made in respect of a decision of the Commission in exercising a function conferred on the Commission by or under this Act (including a function delegated to it under this Act) if the decision was made by the Commission after a public hearing.

Division 3 Joint regional planning panels

23G   Joint regional planning panels

(1)  The Minister may, by order published in the Gazette, constitute a joint regional planning panel for a particular part of the State specified in the order.

(2)  A regional panel has the following functions:

(a)  any of a council’s functions as a consent authority that are conferred on it under an environmental planning instrument,

(b)  any functions that are conferred on it under Division 1AA (Planning administrators and panels) of Part 6,

(c)  to advise the Minister as to planning or development matters or environmental planning instruments relating to the part of the State for which it is appointed, or any related matters, if requested to do so by the Minister.

(3)  A regional panel has the functions conferred or imposed on it by or under this or any other Act.

(4)  A regional panel is not subject to the direction or control of the Minister, except in relation to the procedures of the regional panel and to the extent specifically provided for in this Act.

(5)  A regional panel is a statutory body representing the Crown.

Note. By virtue of section 13A of the Interpretation Act 1987, a statutory body representing the Crown has the status, privileges and immunities of the Crown.

(5A)  Subject to the regulations, a regional panel is, in the exercise of functions conferred under subsection (2) (a), taken to be the council whose functions are conferred on a regional panel as referred to in subsection (2) (a).

(5B)  A regional panel is to exercise functions conferred as referred to in subsection (2) (a) to the exclusion of the applicable council (subject to any delegation under this Act).

(5C)  Subsections (5A) and (5B) apply to the Commission in its exercise of the functions of a regional panel under an environmental planning instrument that are conferred on the Commission under section 23D (1) (d) in the same way as they apply to a regional panel in the exercise of functions conferred as referred to in subsection (2) (a).

(6)  Schedule 4 has effect with respect to regional panels.

23H   Regulations

The regulations may make provision for or with respect to the following matters:

(a)  the functions conferred by this Act on a regional panel including its procedures in exercising its functions, and procedures in relation to its determination of development applications and applications to modify development consents,

(b)  the provision of information and reports by regional panels,

(c)  without limiting paragraph (a), providing that parties to matters being determined by a regional panel are not to be represented (whether by an Australian legal practitioner or any other person) or are only to be represented in specified circumstances.

Division 4 Independent hearing and assessment panels

23I   Independent hearing and assessment panels

(1)  A council may constitute a panel of experts to assess any aspect of a development application or any planning matter referred to the panel by the council (other than a matter subject to a determination or review by a regional panel).

(2)  A council must constitute a panel of experts to assess any aspect of a development application or any planning matter if an assessment by a panel is required by an environmental planning instrument.

(3)  The members of a panel of experts are to consist of persons having expertise in at least 1 of planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering, tourism or government and public administration.

(4)  For the purposes of an assessment, a panel may receive or hear submissions from interested persons and must submit a report to the council within the time required by the council.

(5)  A panel is to exercise its functions in accordance with the regulations and any arrangements approved by the Minister. However, a panel is not subject to the direction of the Minister on the findings or recommendations in its report.

(6)  The council is to provide staff and facilities for the purpose of enabling a panel to exercise its functions.

(7)  A member of a panel is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.

23J   Regulations

The regulations may make provision for or with respect to the following matters:

(a)  the procedures of independent hearing and assessment panels in exercising functions,

(b)  without limiting paragraph (a), providing that parties are not to be represented (whether by an Australian legal practitioner or any other person) or are only to be represented in specified circumstances,

(c)  the provision of information or reports by councils with respect to the exercise of functions by independent hearing and assessment panels and any actions taken or not taken by councils in response to panel assessments.

Division 6 Matters relating to councils and council functions

23M   Obligation to consult with council about certain decisions

The Commission or a regional panel must not exercise a function that will result in the making of a decision that will have, or that might reasonably be expected to have, a significantly adverse financial impact on a council until after it has consulted with the council.

23N   Obligations of councils to assist Commission, regional panels and planning arbitrators

(1)  The Commission, a regional panel or a planning arbitrator is entitled:

(a)  to have access to, and to make copies of and take extracts from, records of a council relevant to the exercise of the Commission’s, panel’s or arbitrator’s functions, and

(b)  to the use of the staff and facilities of a relevant council in order to exercise the Commission’s, panel’s or arbitrator’s functions.

(2)  The general manager of a council must carry out any reasonable direction of the Commission, a regional panel or a planning arbitrator relating to functions of the council being exercised by the Commission or panel or to a review by the arbitrator of a matter for which the council is the consent authority.

Maximum penalty: 10 penalty units.

(3)  A member of a council, or the general manager or other member of staff of a council, must not obstruct the Commission, a regional panel, a planning arbitrator or a member of the Commission or a panel in the exercise of the Commission’s, panel’s or arbitrator’s functions under this Act.

Maximum penalty: 10 penalty units.

23O   Recovery of certain costs

(1)  A council is to pay to the Director-General out of the council’s consolidated fund:

(a)  the remuneration, costs and expenses of the Commission in respect of the exercise of any functions of a consent authority involving development on land within the area of the council, and

(b)  any other costs relating to the provision of services to the Commission by the Department in respect of the exercise of any such functions.

(2)  The councils for an area or part of an area situated in a part of the State for which a regional panel has been appointed are to pay to the Director-General, out of the councils’ consolidated funds, the remuneration, costs and expenses of the panel and of the Department relating to the costs of administration of the panel.

(3)  A council is to pay, out of the council’s consolidated fund, the remuneration, costs and expenses of any independent hearing and assessment panel established by the council.

(5)  The Minister may do either or both of the following:

(a)  exempt a council from payment of any or all of any such remuneration, costs or expenses,

(b)  resolve any dispute as to the amount of any such remuneration, costs or expenses.

Part 3 Environmental planning instruments

Division 1 General

24   Making of environmental planning instruments

(1)  Without affecting the generality of any other provisions of this Act, an environmental planning instrument may be made in accordance with this Part for the purposes of achieving any of the objects of this Act.

(2)  Environmental planning instruments may be made:

(a)  by the Governor under Division 2 (called a State environmental planning policy or SEPP), or

(b)  by the Minister (or delegate) under Division 4 (called a local environmental plan or LEP).

Note. Under transitional arrangements made by Schedule 6, some former instruments (such as regional environmental plans, planning scheme ordinances and interim development orders) continue in force.

25   (Repealed)

26   Contents of environmental planning instruments

(1)  Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following:

(a)  protecting, improving or utilising, to the best advantage, the environment,

(b)  controlling (whether by the imposing of development standards or otherwise) development,

(c)  reserving land for use for the purposes of open space, a public place or public reserve within the meaning of the Local Government Act 1993, a national park or other land reserved or dedicated under the National Parks and Wildlife Act 1974, a public cemetery, a public hospital, a public railway, a public school or any other purpose that is prescribed as a public purpose for the purposes of this section,

(d)  providing, maintaining and retaining, and regulating any matter relating to, affordable housing,

(e)  protecting or preserving trees or vegetation,

(e1)  protecting and conserving native animals and plants, including threatened species, populations and ecological communities, and their habitats,

(f)  controlling any act, matter or thing for or with respect to which provision may be made under paragraph (a) or (e),

(g)  controlling advertising,

(h)  such other matters as are authorised or required to be included in the environmental planning instrument by this or any other Act.

(1A)  An environmental planning instrument may also make provision for or with respect to protecting and conserving vulnerable ecological communities.

(1B)  Despite subsection (1A), an environmental planning instrument must not contain any provision that requires a consent authority, before determining a development application relating to development that may affect a vulnerable ecological community:

(a)  to consult with the Director-General of National Parks and Wildlife or the Minister administering the Threatened Species Conservation Act 1995 about the effect of the development on the vulnerable ecological community, or

(b)  to obtain the concurrence of the Director-General of National Parks and Wildlife or the Minister administering the Threatened Species Conservation Act 1995 in respect of the development because of its possible effect on the vulnerable ecological community.

(2), (3)  (Repealed)

(3A)  An environmental planning instrument may make provision for any zoning of land or other provision to have effect only for a specified period or only in specified circumstances.

(4)  An environmental planning instrument that makes provision for or with respect to protecting or preserving trees or other vegetation may make provision:

(a)  for development control plans to specify the species or kinds of trees or other vegetation included in or excluded from the relevant provisions, and

(b)  for the grant of permission to remove or otherwise affect trees or other vegetation, and for a refusal to grant permission to be treated as a refusal or failure to grant development consent under and for the purposes of Part 4.

Note. Section 5C provides that a reference to the Threatened Species Conservation Act 1995, in relation to the critical habitat of fish or marine vegetation, is taken to be a reference to Part 7A of the Fisheries Management Act 1994.

27   Owner-initiated acquisition of land reserved for public purposes

(1)  An environmental planning instrument that reserves land for use exclusively for a purpose referred to in section 26 (1) (c) must specify an authority of the State that will be the relevant authority to acquire the land if the land is required to be acquired under Division 3 of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991.

(2)  Section 21 of the Land Acquisition (Just Terms Compensation) Act 1991 applies for the purposes of determining whether an environmental planning instrument reserves land for use exclusively for a purpose referred to in section 26 (1) (c).

(3)  An environmental planning instrument (whenever made) is not to be construed as requiring an authority of the State to acquire land, except as required by Division 3 of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991.

(4)  Subsection (3) applies despite:

(a)  any provision of an environmental planning instrument (whenever made) to the contrary, or

(b)  the service of a notice to acquire the land on an authority of the State on or after the day on which notice was given in Parliament for leave to introduce the Bill for the Environmental Planning and Assessment Amendment (Reserved Land Acquisition) Act 2006.

28   Suspension of laws etc by environmental planning instruments

(1)  In this section, regulatory instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made.

(2)  For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument.

(3)  A provision referred to in subsection (2) shall have effect according to its tenor, but only if the Governor has, before the making of the environmental planning instrument, approved of the provision.

(4)  Where a Minister is responsible for the administration of a regulatory instrument referred to in subsection (2), the approval of the Governor for the purposes of subsection (3) shall not be recommended except with the prior concurrence in writing of that Minister.

(5)  A declaration in the environmental planning instrument as to the approval of the Governor as referred to in subsection (3) or the concurrence of a Minister as referred to in subsection (4) shall be prima facie evidence of the approval or concurrence.

(6)  The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.

29   Designated development: declaration by environmental planning instruments

An environmental planning instrument may contain provisions declaring any class or description of development (whether by reference to the type, purpose or location of development or otherwise) to be designated development for the purposes of this Act.

29A   Advertised development

(1)  Without limiting the generality of section 26 (1) (b), an environmental planning instrument may identify development, other than designated development, as advertised development.

(2)  Any such provisions may add to or extend, but not replace or reduce, the provisions of the regulations concerning the notification and advertising of development and the making of submissions relating to advertised development.

30   Consents and concurrences

(1)  Without limiting the generality of section 26 (1) (b), an environmental planning instrument may provide that development specified therein:

(a)  may be carried out without the necessity for consent under this Act being obtained therefor, or

(b)  may not be carried out except with consent under this Act being obtained therefor.

(2)  Where provision is made in accordance with subsection (1) (b), the instrument may provide that a development application in respect of development specified in the instrument shall not be determined by the granting of consent under this Act, except with the concurrence of such Minister or public authority as is specified in the instrument to the carrying out of the development.

(3)  An environmental planning instrument which makes provision in accordance with subsection (2) shall state the matters which shall be taken into consideration in deciding whether concurrence should be granted.

(4), (5)  (Repealed)

31   Prohibitions

Without limiting the generality of section 26 (1) (b), an environmental planning instrument may provide that development specified therein is prohibited.

32, 33   (Repealed)

33A   Standardisation of environmental planning instruments

(1)  The Governor may, by order published on the NSW legislation website, prescribe the standard form and content of local environmental plans or other environmental planning instruments (a standard instrument).

(2)  An environmental planning instrument may be made in the form of:

(a)  a declaration that the applicable mandatory provisions of a standard instrument are adopted, and

(b)  the prescription of the matters required to be prescribed for the purposes of the application of the mandatory provisions of the standard instrument (such as the adoption of land zoning or other maps), and

(c)  the prescription of any other matters permitted to be prescribed by an environmental planning instrument, including non-mandatory provisions of the standard instrument (with or without modification) or additional provisions.

(3)  When an environmental planning instrument is made with such a declaration, the instrument has the form and content of the applicable mandatory provisions of the standard instrument and the matters so prescribed.

(4)  If the mandatory provisions of a standard instrument so adopted are amended by a further order under subsection (1) or by an Act after they are adopted, the environmental planning instrument is taken (without further amendment) to adopt the amended provisions of the standard instrument on and from the date the amendment to the standard instrument takes effect.

(5)  The order that amends a standard instrument may make provision of a savings or transitional nature consequent on the amendment of the standard instrument.

(6)  Where a standard instrument has been adopted, the provisions of the environmental planning instrument (other than the mandatory provisions of the adopted standard instrument) may be amended from time to time by another environmental planning instrument or in accordance with any Act.

(7)  A standard instrument may:

(a)  provide that a provision is a mandatory provision only in the circumstances specified in the instrument, and

(b)  contain requirements or guidance as to the form or content of a non-mandatory provision.

(8)  The adoption of the provisions of a standard instrument in an environmental planning instrument is taken to be a matter of State environmental planning significance for the purposes of this Act.

(8A)  An environmental planning instrument may be made under this Part without compliance with the provisions of this Part relating to the conditions precedent to the making of the instrument if:

(a)  the instrument adopts the provisions of a standard instrument for the purposes of replacing instruments that apply to the land concerned (being existing instruments that do not adopt the provisions of a standard instrument), and

(b)  the Minister is of the opinion that the replacement instrument does not make any substantial changes to the general effect of the existing instrument or instruments.

(9)  Subject to this Act and the regulations, the form and subject-matter of an environmental planning instrument is (if there is no applicable standard instrument) to be as determined by the Minister.

(10)  In this section:

amend includes alter or vary.

form includes structure.

33B   Staged repeal and review of environmental planning instruments

(1)  In order to facilitate the staged implementation of standard instruments and the periodic review of existing instruments, the Minister may, by order published on the NSW legislation website, establish a staged repeal program for existing environmental planning instruments.

(2)  The staged repeal program may include provision for or with respect to the following:

(a)  the repeal of designated environmental planning instruments at specified times during the period of the program,

(b)  requirements for the preparation and making of replacement instruments (including the times by which proposals for replacement instruments are to be submitted to the Director-General or the Minister),

(c)  the postponement of the repeal of particular instruments when the making of a replacement instrument is delayed,

(d)  the periodic review by a council of environmental planning instruments (other than State environmental planning policies) applying in its area and the submission of reports of each review to the Director-General.

(3)  At the time specified by the staged repeal program for the repeal of a designated environmental planning instrument, the instrument is repealed by the operation of this section.

(4)  The Minister may, under Division 4, make a local environmental plan to take effect on the repeal of an instrument under this section pending the making of a replacement instrument in accordance with this Act. Any such plan made by the Minister is to adopt the mandatory provisions of a standard instrument (with the prescriptions the Minister considers necessary in the particular circumstances).

(5)  For the purposes of subsection (4):

(a)  a local environmental plan made pursuant to that subsection is not required to comply with the conditions precedent in Division 4 for the making of an environmental planning instrument, and

(b)  (Repealed)

(c)  the council is to provide the Minister, when requested, with copies of any maps or other relevant documents prepared or held by the council.

The Minister may direct the council to pay to the Director-General such amount as the Director-General determines will meet the reasonable costs incurred on behalf of the Minister by the Department for the purposes of making the plan under subsection (4).

Note. See section 118 (1A) in relation to the power to appoint an administrator to exercise plan-making functions when a council fails to comply with the requirements of the staged repeal program for the preparation or making of a replacement instrument.

33C   Public access to environmental planning instruments and related documents

For the purpose of facilitating electronic or other public access to environmental planning instruments and any development control plans, contributions plans or other documents under this Act:

(a)  the Minister may determine standard technical requirements with respect to the preparation of those instruments, plans or other documents and of the maps or other documents that are referred to in (or adopted under) them, and

(b)  a council is to provide the Director-General, when requested, with copies and electronic files (in a specified format) of any such instruments, plans, maps or other documents prepared or held by the council.

34   Environmental planning instruments—making, operation and inspection

(1)–(4)  (Repealed)

(5)  An environmental planning instrument shall:

(a)  be published on the NSW legislation website, and

(b)  commence on and from the date of publication or a later date specified in the instrument.

(5A)  Subsection (5) does not prevent an environmental planning instrument from specifying different days for the commencement of different provisions of the instrument.

(5B)  Neither the whole nor any part of an environmental planning instrument is invalid merely because the instrument is published on the NSW legislation website after the day on which one or more of its provisions is expressed to commence. In that case, the provisions concerned commence on and from the day the instrument is published on the NSW legislation website, instead of on and from the earlier day.

(6)  A copy of every environmental planning instrument shall be available for public inspection, without charge, at the office of the Department during ordinary office hours.

(7)  The Director-General shall furnish each council affected by an environmental planning instrument with a copy of the instrument as soon as practicable after it is made.

(8)  A copy of each environmental planning instrument that has been furnished to a council by the Director-General shall be available for public inspection, without charge, at:

(a)  the office of the council during ordinary office hours, and

(b)  such other premises operated or controlled by the council and at such times as may be prescribed.

(9)  An environmental planning instrument shall be deemed to have been published on the NSW legislation website notwithstanding that any planning map or other instrument or material referred to, embodied or incorporated in the environmental planning instrument is not so published.

(10)  A reference in subsections (6), (7) and (8) to a copy of an environmental planning instrument includes a reference to any planning map or other prescribed instrument or material referred to, embodied or incorporated in the instrument.

Note. An environmental planning instrument is an instrument for the purposes of the Interpretation Act 1987, and accordingly standard provisions under that Act applying to statutory instruments apply to environmental planning instruments.

34A   Special consultation procedures concerning threatened species

(1)  In this section, the relevant authority means:

(a)  in the case of a proposed SEPP—the Director-General, or

(b)  in the case of a proposed LEP—the relevant planning authority.

(2)  Before an environmental planning instrument is made, the relevant authority must consult with the Director-General of the Department of Environment and Climate Change if, in the opinion of the relevant authority, critical habitat or threatened species, populations or ecological communities, or their habitats, will or may be adversely affected by the proposed instrument.

(3)  For the purposes of the consultation, the relevant authority is to provide such information about the proposed instrument as would assist in understanding its effect (including information of the kind prescribed by the regulations).

(4)  The consultation in relation to a proposed local environmental plan is to commence after a decision under section 56 (Gateway determination) that the matter should proceed, unless the regulations otherwise provide.

(5)  The Director-General of the Department of Environment and Climate Change may comment to the relevant authority on the proposed instrument within the following period after the consultation commences:

(a)  the period agreed between that Director-General and the relevant authority,

(b)  in the absence of any such agreement, the period of 21 days or such other period as is prescribed by the regulations.

(6)  The consultation required by this section is completed when the relevant authority has considered any comments so made.

(7)  In this section, a reference to the Director-General of the Department of Environment and Climate Change includes, in the application of this section to fish and marine vegetation, a reference to the Director-General of the Department of Primary Industries.

34B   Special provision for development in Sydney water catchment relating to water quality

(1)  In this section, Sydney drinking water catchment means a catchment area of the State to which the Sydney Water Catchment Management Act 1998 applies that is declared by a State Environmental Planning Policy to be the Sydney drinking water catchment.

(2)  Provision is to be made in a State Environmental Planning Policy requiring a consent authority to refuse to grant consent to a development application relating to any part of the Sydney drinking water catchment unless the consent authority is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on the quality of water.

(3)  Pending a declaration under subsection (1), the hydrological catchment (within the meaning of the Drinking Water Catchments Regional Environmental Plan No 1, as in force on that commencement) is taken to be the Sydney drinking water catchment.

Note. Schedule 6 provides that regional environmental plans are taken to be SEPPs as a consequence of the repeal of provisions of this Act relating to the making of regional environmental plans.

(4)  The Minister is not to recommend the making of a State Environmental Planning Policy that relates to the declaration of the Sydney drinking water catchment unless:

(a)  the Minister administering the Water Management Act 2000 approves of the declaration, and

(b)  the Minister administering the Protection of the Environment Operations Act 1997 has been consulted about the declaration.

35   Validity of instruments

The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication on the NSW legislation website.

36   Inconsistency between instruments

(1)  In the event of an inconsistency between environmental planning instruments and unless otherwise provided:

(a)  there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy, and

(b)  (Repealed)

(c)  the general presumptions of the law as to when an Act prevails over another Act apply to when one kind of environmental planning instrument prevails over another environmental planning instrument of the same kind.

(2), (3)  (Repealed)

(4)  Nothing in this section prevents an environmental planning instrument from being expressly amended by a later environmental planning instrument, of the same or a different kind, to provide for the way in which an inconsistency between them is to be resolved.

Division 2 SEPPs

37   Governor may make environmental planning instruments (SEPPs)

(1)  The Governor may make environmental planning instruments for the purpose of environmental planning by the State. Any such instrument may be called a State environmental planning policy (or SEPP).

(2)  Without limiting subsection (1), an environmental planning instrument may be made by the Governor to make provision with respect to any matter that, in the opinion of the Minister, is of State or regional environmental planning significance.

38   Consultation requirements

Before recommending the making of an environmental planning instrument by the Governor, the Minister is to take such steps, if any, as the Minister considers appropriate or necessary:

(a)  to publicise an explanation of the intended effect of the proposed instrument, and

(b)  to seek and consider submissions from the public on the matter.

Note. See also section 34A.

39   (Repealed)

Division 3

40–52(Repealed)

Division 4 LEPs

53   Minister (or delegate) may make environmental planning instrument for local areas (LEPs)

(1)  The Minister (or delegate) may make environmental planning instruments for the purpose of environmental planning:

(a)  in each local government area, and

(b)  in such other areas of the State (including the coastal waters of the State) as the Minister determines.

(2)  Any such instrument may be called a local environmental plan (or LEP).

54   Relevant planning authority

(1)  For the purposes of this Part, the relevant planning authority in respect of a proposed instrument is as follows:

(a)  the council for the local government area to which the proposed instrument is to apply, subject to paragraph (b),

(b)  the Director-General or any other person or body prescribed by the regulations if the Minister so directs under subsection (2).

(2)  The Minister may direct that the Director-General (or any other person or body prescribed by the regulations) is the relevant planning authority for a proposed instrument in the following cases:

(a)  the proposed instrument relates to a matter that, in the opinion of the Minister, is of State or regional environmental planning significance,

(b)  the proposed instrument makes provision that, in the opinion of the Minister, is consequential on the approval of the concept plan for a project under Part 3A, is consequential on the making of another environmental planning or other instrument or is consequential on changes made to a standard instrument under section 33A,

(c)  the Planning Assessment Commission or a joint regional planning panel has recommended to the Minister that the proposed instrument should be made,

(d)  the council for the local government area concerned has, in the opinion of the Minister, failed to comply with its obligations with respect to the making of the proposed instrument or has not carried out those obligations in a satisfactory manner,

(e)  the proposed instrument is to apply to an area that is not within a local government area (subject to subsection (6)).

(3)  A relevant planning authority that is requested by the owner of any land to exercise its functions under this Division in relation to the land may, as a condition of doing so, require the owner to carry out studies or provide other information concerning the proposal or to pay the costs of the authority in accordance with the regulations.

(4)  The Minister may, in a direction under this section, require a council to provide studies or other information in its possession relating to the proposed instrument to be provided to the person or body specified in the direction as the relevant planning authority for the proposed instrument.

(5)  Two or more relevant local authorities may together exercise the functions under this Division of a relevant planning authority in connection with the making of a single principal or amending instrument in relation to the whole of their combined areas.

(6)  A reference in this section to a local government area includes a reference to an adjoining area that is not within a local government area and that is designated as part of that local government area for the purposes of this Division by the Minister by order published in the Gazette.

Note. Section 117 enables directions to be given to councils or other relevant planning authorities on the exercise of functions under this Division in relation to the making of an instrument.

55   Relevant planning authority to prepare explanation of and justification for proposed instrument—the planning proposal

(1)  Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal).

(2)  The planning proposal is to include the following:

(a)  a statement of the objectives or intended outcomes of the proposed instrument,

(b)  an explanation of the provisions that are to be included in the proposed instrument,

(c)  the justification for those objectives, outcomes and provisions and the process for their implementation (including whether the proposed instrument will comply with relevant directions under section 117),

(d)  if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land—a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument,

(e)  details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument.

(3)  The Director-General may issue requirements with respect to the preparation of a planning proposal.

56   Gateway determination

(1)  After preparing a planning proposal, the relevant planning authority may forward it to the Minister.

(2)  After a review of the planning proposal, the Minister is to determine the following:

(a)  whether the matter should proceed (with or without variation),

(b)  whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal),

(c)  community consultation required before consideration is given to the making of the proposed instrument (the community consultation requirements),

(d)  any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument,

(e)  whether a public hearing is to be held into the matter by the Planning Assessment Commission or other specified person or body,

(f)  the times within which the various stages of the procedure for the making of the proposed instrument are to be completed.

(3)  A determination of the community consultation requirements includes a determination under section 73A (or other provision of this Act) that the matter does not require community consultation.

(4)  The regulations may provide for the categorisation of planning proposals for the purposes of this section, and may prescribe standard community consultation requirements for each such category.

(5)  The Minister may arrange for the review of a planning proposal (or part of a planning proposal) under this section to be conducted by, or with the assistance of, the Planning Assessment Commission or a joint regional planning panel:

(a)  if there has been any delay in the matter being finalised, or

(b)  if for any other reason the Minister considers it appropriate to do so.

(6)  The relevant planning authority may, at any time, forward a revised planning proposal to the Minister.

(7)  The Minister may, at any time, alter a determination made under this section.

(8)  A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under section 57, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that section.

57   Community consultation

(1)  Before consideration is given to the making of a local environmental plan, the relevant planning authority must consult the community in accordance with the community consultation requirements for the proposed instrument.

(2)  The planning proposal (as revised to comply with the determination under section 56 and in a form approved by the Director-General) is to be made publicly available during the period of community consultation. Detailed provisions may be summarised instead of being set out in full if the Director-General is satisfied that the summary provides sufficient details for community consultation.

(3)  During the period of community consultation, any person may make a written submission to the relevant planning authority concerning the matter (other than any matter that is mandatory under an applicable standard instrument under section 33A).

(4)  The relevant planning authority may (but need not) make publicly available, in accordance with the community consultation requirements, the submissions made concerning a matter (or a summary of or report on any such submissions).

(5)  If:

(a)  a person making a submission so requests, and

(b)  the relevant planning authority considers that the issues raised in a submission are of such significance that they should be the subject of a hearing,

      the relevant planning authority is to arrange a public hearing on the issues raised in the submission.

(6)  The relevant planning authority may arrange a public hearing on any issue whether or not a person has made a submission concerning the matter.

(7)  A report of any public hearing is to be furnished to the relevant planning authority and may be made publicly available by that authority.

(8)  The consultation required by this section is completed when the relevant planning authority has considered any submissions made concerning the proposed instrument and the report of any public hearing.

58   Relevant planning authority may vary proposals or not proceed

(1)  The relevant planning authority may, at any time, vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason.

(2)  If it does so, the relevant planning authority is to forward a revised planning proposal to the Minister.

(3)  Further community consultation under section 57 is not required unless the Minister so directs in a revised determination under section 56.

(4)  The relevant planning authority may also, at any time, request the Minister to determine that the matter not proceed.

59   Making of local environmental plan by Minister

(1)  The Director-General is to make arrangements for the drafting of any required local environmental plan to give effect to the final proposals of the relevant planning authority. The Director-General is to consult the relevant planning authority, in accordance with the regulations, on the terms of any such draft instrument.

(2)  The Minister (or the Minister’s delegate) may, following completion of community consultation:

(a)  make a local environmental plan (with or without variation of the proposals submitted by the relevant planning authority) in the terms the Minister (or delegate) considers appropriate, or

(b)  decide not to make the proposed local environmental plan.

(3)  The Minister (or the Minister’s delegate) may defer the inclusion of a matter in a proposed local environmental plan.

(4)  If the Minister (or the Minister’s delegate) does not make the proposed local environmental plan or defers the inclusion of a matter in a proposed local environmental plan, the Minister (or delegate) may specify which procedures under this Division the relevant planning authority must comply with before the matter is resubmitted to the Minister (or delegate).

60   Regulations

The regulations may make further provision with respect to the making of environmental planning instruments under this Division, including:

(a)  requirements with respect to consultation about proposed instruments by a relevant planning authority with particular persons or bodies, and

(b)  requirements with respect to planning proposals and the submission of other related reports and documents, and

(c)  requirements with respect to advertising in connection with community consultation on proposed instruments, and

(d)  provisions relating to consultation by the Director-General with relevant planning authorities and others on the drafting of proposed instruments, and

(e)  requirements for concurrence of public authorities in relation to the reservation of land for a purpose referred to in section 26 (1) (c).

Note. The Interpretation Act 1987 applies to environmental planning instruments.

61–72   (Repealed)

Division 4A

72A–72H(Repealed)

Division 4B Instrument amendments and development applications

72I   Application of Division

(1)  This Division applies if a development application is made to a consent authority for consent to carry out development that may only be carried out if an environmental planning instrument applying to the land on which the development is proposed to be carried out is appropriately amended.

(2)  This Division also applies in respect of applications and approvals under Part 3A, and references to a development application, a consent authority or a consent are to be construed accordingly.

(3)  A reference in this Division to the appropriate amendment of an environmental planning instrument includes a reference to the making of an appropriate principal environmental planning instrument.

72J   Making and consideration of certain development applications

Nothing in this Act prevents:

(a)  the making of a development application to a consent authority for consent to carry out development that may only be carried out if an environmental planning instrument applying to the land on which the development is proposed to be carried out is appropriately amended, or

(b)  the consideration by a consent authority of such a development application,

subject to this Division.

72K   Joint exhibition of instrument and advertising of application

(1)  Public notice that is required to be given under this Act in connection with the making of a proposed environmental planning instrument and notice that is required to be given under this Act of a development application in circumstances where this Division applies are to be given by the same notice if that is practicable or, if that is not practicable, as closely together as is practicable.

(2)  The period during which the public may inspect the documents relating to the proposed environmental planning instrument and the development application the subject of the same notice, if those periods are different, is to be the longer of them.

(3)  If the proposed environmental planning instrument makes the development the subject of the development application designated development, the period for public inspection of the development application that is to be relevant in determining the period for public inspection under subsection (2) is the period relevant to the inspection of a development application for designated development.

72L   (Repealed)

Division 5 Review and amendment of environmental planning instruments

73   Review of environmental planning instruments

The Director-General shall keep State environmental planning policies and councils shall keep their local environmental plans and development control plans under regular and periodic review for the purpose of ensuring that the objects of this Act are, having regard to such changing circumstances as may be relevant, achieved to the maximum extent possible.

73A   Expedited amendments of environmental planning instruments

(1)  An amending environmental planning instrument may be made under this Part without compliance with the provisions of this Part relating to the conditions precedent to the making of the instrument if the instrument, if made, would amend or repeal a provision of a principal instrument in order to do any one or more of the following:

(a)  correct an obvious error in the principal instrument consisting of a misdescription, the inconsistent numbering of provisions, a wrong cross-reference, a spelling error, a grammatical mistake, the insertion of obviously missing words, the removal of obviously unnecessary words or a formatting error,

(b)  address matters in the principal instrument that are of a consequential, transitional, machinery or other minor nature,

(c)  deal with matters that the Minister considers do not warrant compliance with the conditions precedent for the making of the instrument because they will not have any significant adverse impact on the environment or adjoining land.

(2)  A reference in this section to an amendment of an instrument includes a reference to the amendment or replacement of a map adopted by an instrument.

74   Amendment of environmental planning instruments

(1)  An environmental planning instrument may be amended in whole or in part by a subsequent environmental planning instrument whether of the same or a different type.

(2)  (Repealed)

(3)  In this section, amended includes altered, varied or repealed.

74A   Application of Division

This Division is subject to sections 33A and 33B.

Division 6 Development control plans

74B   Definition (DCPs)

(1)  In this Division:

relevant planning authority, in relation to any matter, means the council of the area to which the matter relates or the Director-General. However, the council is not the relevant planning authority in relation to a SEPP and the Director-General is not the relevant planning authority in relation to a LEP for which a council is the relevant planning authority under Division 4.

(2)  A reference in this Division to an environmental planning instrument includes a reference to any such proposed instrument.

74C   Preparation of development control plans

(1)  The relevant planning authority may prepare a development control plan (or cause such a plan to be prepared) if it considers it necessary or desirable:

(a)  to make more detailed provision with respect to development to achieve the purpose of an environmental planning instrument applying to the land concerned, or

(b)  to identify development as advertised development (so as to make additional but not inconsistent requirements to those imposed by the regulations in relation to development applications), or

(c)  to provide for (or exclude) public or particular advertising or notification of any of the following:

(i)  a development application for specified development (other than designated development or advertised development),

(ii)  a request for the review of a determination of a development application where the applicant for review makes amendments to the development described in the original development application,

(iii)  an application for the modification of a development consent for specified development (including advertised development but not designated development), or

(iv)  (Repealed)

(d)  in the case of a council—to specify criteria (in addition to but not inconsistent with any criteria prescribed by the regulations) that the council is to take into consideration in determining whether or not to give an order under Division 2A of Part 6, or

(e)  to make provision for anything permitted by this Act to be prescribed by a development control plan.

Note. See for example section 26 (4) (a).

(2)  Only one development control plan made by the same relevant planning authority may apply in respect of the same land. This subsection does not apply to:

(a)  a plan prepared for the purposes of subsection (1) (d) or for any other purpose prescribed by the regulations, or

(b)  a plan prepared for the purpose of amending an existing plan.

If this subsection is not complied with, all the development control plans concerned have no effect.

Note. A planning authority may prepare one development control plan for the whole of its area or one plan for each precinct or locality in its area, or prepare one plan for a site (and exclude that site from the area to which other plans apply).

(3)  A development control plan may adopt by reference the provisions of another development control plan.

(4)  A development control plan may amend, substitute or revoke another development control plan.

(5)  A provision of a development control plan (whenever made) has no effect to the extent that:

(a)  it is the same or substantially the same as the provision of an environmental planning instrument applying to the same land, or

(b)  it is inconsistent with a provision of any such instrument or its application prevents compliance with a provision of any such instrument.

74D   Development control plans required or authorised by environmental planning instruments

(1)  An environmental planning instrument may require or permit a development control plan to be prepared before any particular development or kind of development may be carried out (and make provision with respect to the preparation and content of any such plan).

(2)  Any such development control plan may outline the development of all the land to which it applies.

(3)  Any such development control plan may be prepared (and submitted to the relevant planning authority) by the owners of the land to which it applies or by such percentage of those owners as the environmental planning instrument concerned allows. A person authorised by those owners may act on their behalf for the purposes of this subsection.

(4)  The relevant planning authority may make a development control plan submitted to it under this section, including with such changes as it thinks fit.

(5)  If the relevant planning authority refuses to make a development control plan submitted to it under this section (or delays by more than 60 days to make a decision on whether to make the plan):

(a)  the owners may make a development application despite the requirement of the environmental planning instrument concerned for the preparation of a development control plan, or

(b)  the Minister may act in the place of the relevant planning authority to make the plan (with or without modification), but only if the environmental planning instrument concerned authorises the Minister to do so.

(6)  The regulations may extend the period of 60 days referred to in subsection (5) in connection with any failure by the owners to provide further information required by the relevant planning authority for the purposes of making the plan.

Note. Section 75M provides that a concept plan may be submitted for a project to which Part 3A applies as an alternative to a development control plan required by an environmental planning instrument. Section 83C provides that a staged development application may be made for development requiring consent under Part 4 as an alternative to a development control plan required by an environmental planning instrument.

74E   Miscellaneous provisions relating to development control plans

(1)  The regulations may make provision for or with respect to development control plans, including:

(a)  the form, structure and subject-matter of development control plans, and

(b)  the procedures for the preparation, public exhibition, making, amendment and repeal of development control plans, and

(c)  the fees payable to the relevant planning authority by owners submitting draft development control plans under section 74D.

(2)  The staged repeal program under section 33B may be extended to development control plans, and for that purpose a reference in that section to an environmental planning instrument is taken to include a reference to a development control plan.

(3)  An environmental planning instrument may exclude or modify the application of development control plans in respect of land to which the instrument applies (whether the plan was prepared before or after the making of the instrument).

(4)  A development control plan must be available for public inspection (without charge):

(a)  at the principal office of the relevant planning authority that prepared the plan, and

(b)  in such other manner as is prescribed by the regulations.

74F   Minister may direct councils with respect to development control plans

(1)  The Minister may, subject to the regulations (if any), direct a council to make, amend or revoke a development control plan in the time and manner specified in the direction.

(2)  A council to which a direction is given under this section must comply with the direction in accordance with its terms.

(3)  If a council fails to comply with a direction of the Minister under this section, the Minister may make, amend or revoke the development control plan as if the Minister were the council.

(4)  A development control plan made, amended or revoked by the Minister under this section has effect, or ceases to have effect as the case may be, as if it were made, amended or revoked by the council.

(5)  The Minister in making, amending or revoking a development control plan under this section is not subject to the regulations.

(6)  Section 74C (2) does not apply to development control plan made by or at the direction of the Minister under this section.

Part 3A Major infrastructure and other projects

Division 1 Preliminary

75A   Definitions

In this Part:

approved project means a project to the extent that it is approved by the Minister under this Part, but does not include a project for which only approval for a concept plan has been given.

critical infrastructure project means a project that is a critical infrastructure project, as referred to in section 75C.

development includes an activity within the meaning of Part 5.

major infrastructure development includes development, whether or not carried out by a public authority, for the purposes of roads, railways, pipelines, electricity generation, electricity or gas transmission or distribution, sewerage treatment facilities, dams or water reticulation works, desalination plants, trading ports or other public utility undertakings.

project means development that is declared under section 75B to be a project to which this Part applies.

proponent of a project, means the person proposing to carry out development comprising all or any part of the project, and includes any person certified by the Minister to be the proponent.

75B   Projects to which Part applies

(1) General
This Part applies to the carrying out of development that is declared under this section to be a project to which this Part applies:

(a)  by a State environmental planning policy, or

(b)  by order of the Minister published in the Gazette (including by an order that amends such a policy).

The carrying out of particular or a class of development, or development for a program or plan of works or activities, may be so declared.

(2) Kinds of projects
The following kind of development may be declared to be a project to which this Part applies:

(a)  major infrastructure or other development that, in the opinion of the Minister, is of State or regional environmental planning significance,

(b)  major infrastructure or other development that is an activity for which the proponent is also the determining authority (within the meaning of Part 5) and that, in the opinion of the proponent, would (but for this Part) require an environmental impact statement to be obtained under that Part.

(3) Related development
If only part of any development is a project to which this Part applies, the other parts of the development are (subject to subsection (4)) taken to be a project to which this Part applies. The development is to be dealt with under this Part as a single project.

(4) Limiting declared development
The declaration of a project may be limited to an aspect of development (such as the construction of a project), to a particular period of carrying out development or otherwise.

(5) Amendment or revocation of declaration
The declaration of a project may be amended or revoked at any time (including before or after an approval for the project is given under this Part).

Editorial note. For orders under this section see Gazettes No 96 of 29.7.2005, p 4054 (see also No 135 of 10.11.2006, p 9535); No 52 of 13.4.2006, p 2223; No 58 of 28.4.2006, p 2468 (revoked GG No 122 of 6.10.2006, p 8671); No 76 of 9.6.2006, p 4352; No 82 of 23.6.2006, p 4704; No 93 of 21.7.2006, p 5798; No 114 of 8.9.2006, p 7933; No 117 of 15.9.2006, p 8077 (revoked GG No 66 of 11.5.2007, p 2675); No 123 of 13.10.2006, p 8749; No 127 of 27.10.2006, p 8995; No 139 of 17.11.2006, p 9781; No 175 of 8.12.2006, p 10507; No 186 of 15.12.2006, p 11525; No 1 of 5.1.2007, p 5; No 35 of 1.3.2007, p 1173; No 83 of 29.6.2007, pp 4241, 4242; No 87 of 6.7.2007, p 4412; No 139 of 5.10.2007, p 7657; No 156 of 26.10.2007, pp 8122–8124 (see also No 9 of 18.1.2008, p 100); No 167 of 9.11.2007, p 8368; No 169 of 16.11.2007, p 8521; No 175 of 30.11.2007, p 8726; No 182 of 14.12.2007, p 9632; No 185 of 21.12.2007, p 10002; No 4 of 11.1.2008, p 39; No 12 of 1.2.2008, p 446; No 21 of 22.2.2008, p 1168; No 37 of 28.3.2008, p 2530; No 60 of 26.5.2008, p 4017; No 88 of 18.7.2008, p 7245; No 20 of 23.1.2009, p 420; No 29 of 6.2.2009, p 605; No 30 of 6.2.2009, p 935; No 44 of 27.2.2009, p 1262; No 50 of 6.3.2009, p 1318; No 51 of 13.3.2009, p 1375; No 103 of 10.7.2009, p 4068; No 146 of 16.10.2009, p 5426 and No 156 of 30.10.2009, p 5536.

75C   Critical infrastructure projects

(1)  Any development that is declared to be a project to which this Part applies may also be declared to be a critical infrastructure project if it is of a category that, in the opinion of the Minister, is essential for the State for economic, environmental or social reasons.

(2)  Section 75B applies to a declaration under this section in the same way as it applies to a declaration under that section. The declaration of a critical infrastructure project under this section may (but need not) be made at the same time or by the same method as the declaration under section 75B relating to the project.

Note. In the case of a critical infrastructure project, this Part contains the following additional provisions:

(a)  sections 75K, 75L and 75Q exclude proponent or objector appeals in respect of the determination of an application for approval of the project,

(b)  section 75R excludes with respect to the project all environmental planning instruments (other than SEPPs that specifically relate to the project) and council orders under Division 2A of Part 6,

(c)  section 75T excludes third-party appeals against the project under this Act or other environment protection legislation.

Guidelines with respect to environmental assessment of the project under section 75F can be tailored to the circumstances of the case.

Editorial note. For declarations gazetted under this section see Gazettes No 175 of 8.12.2006, pp 10509, 10511; No 1 of 5.1.2007, p 4; No 24 of 27.2.2008, p 1247; No 48 of 2.5.2008, p 2996; No 44 of 27.2.2009, p 1262; No 51 of 13.3.2009, pp 1374, 1375; No 75 of 22.5.2009, p 2305 and No 103 of 10.7.2009, p 4068.

Division 2 Environmental assessment and approval of projects

75D   Minister’s approval required for projects

(1)  A person is not to carry out development that is a project to which this Part applies unless the Minister has approved of the carrying out of the project under this Part.

(2)  The person is to comply with any conditions to which such an approval is subject.

75E   Application for approval of project

(1)  The proponent may apply for the approval of the Minister under this Part to carry out a project.

(2)  The application is to:

(a)  describe the project, and

(b)  contain any other matter required by the Director-General.

(3)  The application is to be lodged with the Director-General.

(4)  An application may relate to part only of a project.

75F   Environmental assessment requirements for approval

(1)  The Minister may, after consultation with the Minister for the Environment, publish guidelines in the Gazette with respect to environmental assessment requirements for the purpose of the Minister approving projects under this Part (including levels of assessment and the public authorities and others to be consulted).

(2)  When an application is made for the Minister’s approval for a project, the Director-General is to prepare environmental assessment requirements having regard to any such relevant guidelines in respect of the project.

(3)  The Director-General is to notify the proponent of the environmental assessment requirements. The Director-General may modify those requirements by further notice to the proponent.

(4)  In preparing the environmental assessment requirements, the Director-General is to consult relevant public authorities and have regard to the need for the requirements to assess any key issues raised by those public authorities.

(5)  The environmental assessment requirements may require an environmental assessment to be prepared by or on behalf of the proponent in the form approved by the Director-General.

(6)  The Director-General may require the proponent to include in an environmental assessment a statement of the commitments the proponent is prepared to make for environmental management and mitigation measures on the site.

(7)  This section is subject to section 75P.

Note. Section 75P enables the Minister to determine environmental assessment requirements for approval to carry out the project or any stage of the project when giving approval to a concept plan for the project under Division 3.

75G   (Repealed)

75H   Environmental assessment and public consultation

(1)  The proponent is to submit to the Director-General the environmental assessment required under this Division for approval to carry out the project.

(2)  If the Director-General considers that the environmental assessment does not adequately address the environmental assessment requirements, the Director-General may require the proponent to submit a revised environmental assessment to address the matters notified to the proponent.

(3)  After the environmental assessment has been accepted by the Director-General, the Director-General must, in accordance with any guidelines published by the Minister in the Gazette, make the environmental assessment publicly available for at least 30 days.

(4)  During that period, any person (including a public authority) may make a written submission to the Director-General concerning the matter.

(5)  The Director-General is to provide copies of submissions received by the Director-General or a report of the issues raised in those submissions to:

(a)  the proponent, and

(b)  if the project will require an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997—the Department of Environment and Conservation, and

(c)  any other public authority the Director-General considers appropriate.

(6)  The Director-General may require the proponent to submit to the Director-General:

(a)  a response to the issues raised in those submissions, and

(b)  a preferred project report that outlines any proposed changes to the project to minimise its environmental impact, and

(c)  any revised statement of commitments.

(7)  If the Director-General considers that significant changes are proposed to the nature of the project, the Director-General may require the proponent to make the preferred project report available to the public.

75I   Director-General’s environmental assessment report

(1)  The Director-General is to give a report on a project to the Minister for the purposes of the Minister’s consideration of the application for approval to carry out the project.

(2)  The Director-General’s report is to include:

(a)  a copy of the proponent’s environmental assessment and any preferred project report, and

(b)  any advice provided by public authorities on the project, and

(c)  a copy of any report of the Planning Assessment Commission in respect of the project, and

(d)  a copy of or reference to the provisions of any State Environmental Planning Policy that substantially govern the carrying out of the project, and

(e)  except in the case of a critical infrastructure project—a copy of or reference to the provisions of any environmental planning instrument that would (but for this Part) substantially govern the carrying out of the project and that have been taken into consideration in the environmental assessment of the project under this Division, and

(f)  any environmental assessment undertaken by the Director-General or other matter the Director-General considers appropriate, and

(g)  a statement relating to compliance with the environmental assessment requirements under this Division with respect to the project.

75J   Giving of approval by Minister to carry out project

(1)  If:

(a)  the proponent makes an application for the approval of the Minister under this Part to carry out a project, and

(b)  the Director-General has given his or her report on the project to the Minister,

      the Minister may approve or disapprove of the carrying out of the project.

(2)  The Minister, when deciding whether or not to approve the carrying out of a project, is to consider:

(a)  the Director-General’s report on the project and the reports, advice and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and

(b)  if the proponent is a public authority—any advice provided by the Minister having portfolio responsibility for the proponent, and

(c)  any findings or recommendations of the Planning Assessment Commission following a review in respect of the project.

(3)  In deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.

(4)  A project may be approved under this Part with such modifications of the project or on such conditions as the Minister may determine.

(5)  The conditions of approval for the carrying out of a project may require the proponent to comply with any obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F).

75JA   Biobanking—special provisions

(1)  Without limiting section 75J, the Minister may approve a project subject to a condition that requires the proponent to acquire and retire (in accordance with Part 7A of the Threatened Species Conservation Act 1995) biodiversity credits of a number and class (if any) specified by the Minister in the approval. This subsection applies whether or not a biobanking statement under Part 7A of that Act was obtained in respect of the project.

(2)  The Minister may approve an arrangement under which:

(a)  the retirement of some or all of the biodiversity credits is deferred pending the completion of any rehabilitation or restoration action proposed to be taken on the site of the project, after the project has been substantially completed, that will restore or improve the biodiversity values affected by the project, and

(b)  the biodiversity credits the retirement of which is deferred pending the completion of those actions are required to be transferred to the Minister administering the Threatened Species Conservation Act 1995.

(3)  Division 7 of Part 7A of the Threatened Species Conservation Act 1995 applies in respect of any such arrangement as if it were a deferred retirement arrangement approved by the Director-General of the Department of Environment and Conservation under that Division.

(4)  If a biobanking statement was obtained in respect of the project, the Minister may approve the project subject to a condition that requires the proponent to comply with any conditions of the biobanking statement.

Note. The conditions of a biobanking statement may require the proponent to retire biodiversity credits in respect of the project in order to ensure that it maintains or improves biodiversity values, or to carry out other onsite measures to minimise any negative impact of the project on biodiversity values.

(5)  A person cannot appeal to the Court in respect of a condition imposed by the Minister under subsection (4).

75K   Appeals by proponent

(1)  This section applies to a project if:

(a)  the project is not a critical infrastructure project, and

(b)  the proponent is not a public authority, and

(c)  the project has not been the subject of a review by the Planning Assessment Commission, and

(d)  but for this Part, the provisions of Part 4 would apply to the project.

(2)  A proponent who is dissatisfied with the determination of the Minister with respect to an application by the proponent under this Division may appeal to the Court within 3 months after:

(a)  the date on which the proponent received notice of the determination of the application in accordance with the regulations, or

(b)  the date on which the regulations provide that a pending application is taken to have been refused for the purposes only of this section.

(3)  If any such appeal is made, each objector to the application referred to in section 75L is to be given notice by the Minister of that appeal and is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if the objector were a party to the appeal.

75L   Appeals by an objector

(1)  This section applies to a project if:

(a)  it is not a critical infrastructure project, and

(b)  there has been no approval of a concept plan for the project under Division 3, and

(c)  the project has not been the subject of a review by the Planning Assessment Commission, and

(d)  but for this Part, the project would be designated development to which the provisions of Part 4 would apply.

(2)  For the purposes of this section, an objector is a person who has made a submission under section 75H by way of objection to an application for approval under this Division to carry out a project.

(3)  An objector who is dissatisfied with the determination of the Minister under this Division to give approval to carry out a project may appeal to the Court within 28 days after the date on which notice of the determination was given in accordance with the regulations.

(4)  If such an appeal is made, the proponent and the Minister are to be given notice of the appeal, in accordance with rules of court, and are entitled to be heard at the hearing of the appeal as parties to the appeal.

Division 3 Concept plans for certain projects

75M   Application for approval of concept plan for project

(1)  The Minister may authorise or require the proponent to apply for approval of a concept plan for a project.

(2)  The application is to:

(a)  outline the scope of the project and any development options, and

(b)  set out any proposal for the staged implementation of the project, and

(c)  contain any other matter required by the Director-General.

A detailed description of the project is not required.

(3)  The application is to be lodged with the Director-General.

(3A)  A single application may be made for approval of a concept plan for a project and for approval to carry out any part or aspect of the project. In that case, environmental assessment requirements, public consultation and reports under this Division and Division 2 with respect to the project may be combined.

(4)  If an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, the obligation may be satisfied for a project by an application for approval and approval of a concept plan in respect of the land concerned (but only if the Minister authorises or requires an application for approval of the concept plan).

75N   Environmental assessment, public consultation and Director-General’s report for concept plan

Sections 75F (Environmental assessment requirements for approval), 75H (Environmental assessment and public consultation) and 75I (Director-General’s environmental assessment report) apply, subject to the regulations, with respect to approval for the concept plan for a project in the same way as they apply with respect to approval to carry out a project.

75O   Giving of approval for concept plan

(1)  If:

(a)  the proponent makes an application for the approval of the Minister under this Part of a concept plan for a project, and

(b)  the Director-General has given his or her report on the project to the Minister,

      the Minister may give or refuse to give approval for the concept plan for the project.

(2)  The Minister, when deciding whether or not to give approval for the concept plan, is to consider:

(a)  the Director-General’s report on the project and the reports and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and

(b)  if the proponent is a public authority—any advice provided by the Minister having portfolio responsibility for the proponent, and

(c)  any findings or recommendations of the Planning Assessment Commission following a review in respect of the project.

(3)  In deciding whether or not to give approval for the concept plan for a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for a concept plan for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.

(4)  Approval for a concept plan may be given under this Division with such modifications of the concept plan as the Minister may determine.

(5)  Approval for the concept plan may be given under this Division subject to satisfactory arrangements being made, before final approval is given for the project or any stage of the project under this Part or under the other provisions of this Act, for the purpose of fulfilling the obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F).

75P   Determinations with respect to project for which concept plan approved

(1)  When giving an approval for the concept plan for a project, the Minister may make any (or any combination) of the following determinations:

(a)  the Minister may determine the further environmental assessment requirements for approval to carry out the project or any particular stage of the project under this Part (in which case those requirements have effect for the purposes of Division 2),

(b)  the Minister may determine that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act (in which case the project or that stage of the project ceases to be a project to which this Part applies),

(c)  the Minister may determine that no further environmental assessment is required for the project or any particular stage of the project (in which case the Minister may, under section 75J, approve or disapprove of the carrying out of the project or that stage of the project without further application, environmental assessment or report under Division 2).

(1A)  The further requirements for approval to carry out the project or any part of the project that the Minister may determine under subsection (1) (a) are not limited to matters that the Director-General may require under Division 2.

Note. The Minister may, for example, require a design competition for any building that is part of the project.

(2)  If the Minister determines that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act, the following provisions apply:

(a)  the determination of a development application for the project or that stage of the project under Part 4 is to be generally consistent with the terms of the approval of the concept plan,

(a1)  any consent granted for the project or that stage of the project under Part 4 is to be subject to such conditions as the Minister directs for the purpose of fulfilling the obligations in a statement of commitments submitted by the proponent (in which case those conditions cannot be modified without the approval of the Minister and a person cannot appeal to the Court under this Act in respect of the direction or any such conditions imposed by the consent authority),

(b)  the project or that stage of the project is not integrated development for the purposes of Part 4,

(c)  any further environmental assessment of the project or that stage of the project under Part 4 or Part 5 is to be undertaken in accordance with the requirements determined by the Minister when approving the concept plan (despite anything to the contrary in that Part),

(c1)  a provision of an environmental planning instrument prohibiting or restricting the carrying out of the project or that stage of the project under Part 4 (other than a project of a class prescribed by the regulations) does not have effect if the Minister so directs,

(d)  the Minister may, by order, declare that that stage of the project (or any part of it) is exempt or complying development for the purposes of this Act,

(e)  the Minister may, by order, declare that that stage of the project (or any part of it) is not designated development for the purposes of this Act,

(f)  the Minister may, by order, revoke or amend (as the case requires) the declaration of the project under this Part.

An order under paragraph (d), (e) or (f) is to be published in the Gazette and has effect according to its tenor.

75Q   Appeal by proponent

(1)  This section applies to a project for which an application for approval of a concept plan has been made if:

(a)  the project is not a critical infrastructure project, and

(b)  the proponent is not a public authority, and

(c)  the project has not been the subject of a review by the Planning Assessment Commission, and

(d)  but for this Part, the provisions of Part 4 would apply to the project.

(2)  A proponent who is dissatisfied with the determination of the Minister under this Division to refuse to approve the concept plan for a project (or to modify a concept plan for which approval is given) may appeal to the Court within 3 months after:

(a)  the date on which the proponent received notice of the determination in accordance with the regulations, or

(b)  the date on which the regulations provide that a pending application is taken to have been refused for the purposes only of this section.

(3)  If the Court allows the appeal, the Minister is to approve the concept plan in the manner determined by the Court. The Court does not have jurisdiction to approve the concept plan or to make or direct the Minister on any determination that may be made under section 75P when giving approval for a concept plan.

Division 4 Application of other provisions of this and other Acts

75R   Application of other provisions of Act

(1)  Part 4 and Part 5 do not, except as provided by this Part, apply to or in respect of an approved project (including the declaration of the project as a project to which this Part applies and any approval or other requirement under this Part for the project).

(2)  Part 3 and State environmental planning policies apply to:

(a)  the declaration of a project as a project to which this Part applies or as a critical infrastructure project, and

(b)  the carrying out of a project, but (in the case of a critical infrastructure project) only to the extent that the provisions of such a policy expressly provide that they apply to and in respect of the particular project.

(3)  Environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project.

Note. See sections 75J (3) and 75O (3) in relation to the application of such instruments when an application for approval of a project or a concept plan is being considered.

(3A)  The Minister may, by order published on the NSW legislation website, amend an environmental planning instrument to authorise the carrying out of any of the following development (or to remove or modify any provisions of the instrument that purport to prohibit or restrict the carrying out of any of the following development):

(a)  development that is an approved project,

(b)  development that is a project for which a concept plan has been approved (whether or not approval for carrying out the project or any part of the project is subject to this Part).

(4)  Divisions 6 and 6A of Part 4 apply to projects (and the giving of approval for the carrying out of projects under this Part) in the same way as they apply to development and the granting of consent to the carrying out of development under Part 4, subject to any necessary modifications and any modifications prescribed by the regulations. However, a condition cannot be imposed under section 94, 94A, 94EF or 94F unless that section would have applied if this Part did not apply to the project and a development consent were granted.

(5)  Division 2A of Part 6 applies to a critical infrastructure project only to the extent that the regulations so provide.

75S   Erection and occupation of buildings and subdivision of land

(1A)  For the purposes of this section, a relevant provision is section 81A, section 109M or any other provision of this Act relating to the issue of subdivision certificates.

(1)  A relevant provision applies to an approved project (other than a critical infrastructure project) in the same way as it applies to development subject to a development consent, subject to any necessary modifications and any modifications prescribed by the regulations. For that purpose, a reference in Part 4A to a development consent includes a reference to an approval of a project under this Part.

(2)  However:

(a)  a relevant provision does not apply unless that provision would have applied if this Part did not apply to the project, and

(b)  a relevant provision applies to a critical infrastructure project if the Minister when giving approval under this Part makes it a condition of that approval that the provision applies.

(3)  Section 109R applies to an approved project, but section 109S does not apply.

75T   Third-party appeals—critical infrastructure projects

(1)  This section applies to:

(a)  proceedings in the Court (and orders made by the Court) under Division 3 of Part 6, and

(b)  proceedings in the Court (and orders made by the Court) under section 252 or 253 of the Protection of the Environment Operations Act 1997, and

(c)  proceedings in the Court (and orders made by the Court) under section 20 (2) of the Land and Environment Court Act 1979.

(2)  Proceedings in the Court (and orders made by the Court) cannot be taken or made, except on application made or approved by the Minister:

(a)  to remedy or restrain a breach of this Act (within the meaning of Division 3 of Part 6) arising under this Part in respect of a critical infrastructure project, including the declaration of the project as a project (and a critical infrastructure project) to which this Part applies and any approval or other requirement under this Part for the project, or

(b)  to enforce any conditions of an approval under this Part for a critical infrastructure project, or

(c)  to remedy or restrain a breach of this or any other Act arising in respect of the giving of an authorisation of a kind referred to in section 75V (1) for a critical infrastructure project (or in respect of the conditions of such an authorisation).

75U   Approvals etc legislation that does not apply

(1)  The following authorisations are not required for an approved project (and accordingly the provisions of any Act that prohibit an activity without such an authority do not apply):

(a)  the concurrence under Part 3 of the Coastal Protection Act 1979 of the Minister administering that Part of the Act,

(b)  a permit under section 201, 205 or 219 of the Fisheries Management Act 1994,

(c)  an approval under Part 4, or an excavation permit under section 139, of the Heritage Act 1977,

(d)  a permit under section 87 or a consent under section 90 of the National Parks and Wildlife Act 1974,

(e)  an authorisation referred to in section 12 of the Native Vegetation Act 2003 (or under any Act to be repealed by that Act) to clear native vegetation or State protected land,

(f)  a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948,

(g)  a bush fire safety authority under section 100B of the Rural Fires Act 1997,

(h)  a water use approval under section 89, a water management work approval under section 90 or an activity approval under section 91 of the Water Management Act 2000.

(2)  Division 8 of Part 6 of the Heritage Act 1977 does not apply to prevent or interfere with the carrying out of an approved project.

(3)  The following orders or notices cannot be made or given so as to prevent or interfere with the carrying out of an approved critical infrastructure project:

(a)  an interim protection order (within the meaning of the National Parks and Wildlife Act 1974 or the Threatened Species Conservation Act 1995),

(b)  an order under Division 1 (Stop work orders) of Part 6A of the National Parks and Wildlife Act 1974, Division 1 (Stop work orders) of Part 7 of the Threatened Species Conservation Act 1995 or Division 7 (Stop work orders) of Part 7A of the Fisheries Management Act 1994,

(c)  an environment protection notice under Chapter 4 of the Protection of the Environment Operations Act 1997,

(d)  an order under section 124 of the Local Government Act 1993.

Note. Under the National Parks and Wildlife Act 1974, actions that are essential for carrying out an approved project provide the same defence to actions relating to harm to native fauna (and threatened species) as a development consent under Part 4, or environmental assessment under Part 5, of this Act provide.

(4)  A reference in this section to an approved project includes a reference to any investigative or other activities that are required to be carried out for the purpose of complying with any environmental assessment requirements under this Part in connection with an application for approval to carry out the project or of a concept plan for the project.

75V   Approvals etc legislation that must be applied consistently

(1)  An authorisation of the following kind cannot be refused if it is necessary for carrying out an approved project and is to be substantially consistent with the approval under this Part:

(a)  an aquaculture permit under section 144 of the Fisheries Management Act 1994,

(b)  an approval under section 15 of the Mine Subsidence Compensation Act 1961,

(c)  a mining lease under the Mining Act 1992,

(d)  a production lease under the Petroleum (Onshore) Act 1991,

(e)  an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997 (for any of the purposes referred to in section 43 of that Act),

(f)  a consent under section 138 of the Roads Act 1993,

(g)  a licence under the Pipelines Act 1967.

(2)  If:

(a)  the Minister determines when giving approval for a concept plan under section 75P that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act, and

(b)  development consent to carry out the project or that stage of the project is given under Part 4,

      an authorisation of the kind referred to in subsection (1) or section 75U (1) cannot be refused if it is necessary for carrying out the project or that stage of the project and is to be substantially consistent with the development consent.

(3)  This section does not apply to or in respect of:

(a)  an application for the renewal of an authorisation or a renewed authorisation, or

(b)  an application for a further authorisation or a further authorisation following the expiry or lapsing of an authorisation, or

(c)  in the case of an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997—any period after the first review of the licence under section 78 of that Act.

(4)  A reference in this section to an authorisation or approval includes a reference to any conditions of the authorisation or approval.

(5)  This section applies to a person, court or tribunal that deals with an objection, appeal or review conferred on a person in relation to an authorisation in the same way as it applies to the person giving the authorisation.

Division 5 Miscellaneous

75W   Modification of Minister’s approval

(1)  In this section:

Minister’s approval means an approval to carry out a project under this Part, and includes an approval of a concept plan.

modification of approval means changing the terms of a Minister’s approval, including:

(a)  revoking or varying a condition of the approval or imposing an additional condition of the approval, and

(b)  changing the terms of any determination made by the Minister under Division 3 in connection with the approval.

(2)  The proponent may request the Minister to modify the Minister’s approval for a project. The Minister’s approval for a modification is not required if the project as modified will be consistent with the existing approval under this Part.

(3)  The request for the Minister’s approval is to be lodged with the Director-General. The Director-General may notify the proponent of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister.

(4)  The Minister may modify the approval (with or without conditions) or disapprove of the modification.

(5)  The proponent of a project to which section 75K applies who is dissatisfied with the determination of a request under this section with respect to the project (or with the failure of the Minister to determine the request within 40 days after it is made) may, within the time prescribed by the regulations, appeal to the Court. The Court may determine any such appeal.

(6)  Subsection (5) does not apply to a request to modify:

(a)  an approval granted by or as directed by the Court on appeal, or

(b)  a determination made by the Minister under Division 3 in connection with the approval of a concept plan.

(7)  This section does not limit the circumstances in which the Minister may modify a determination made by the Minister under Division 3 in connection with the approval of a concept plan.

75X   Miscellaneous provisions relating to approvals under this Part

(1)  If the proponent of a project (or proposed project) is the Minister or the corporation constituted by section 8 (1), the project must be the subject of a review by the Planning Assessment Commission.

(2)  The following documents under this Part in relation to a project are to be made publicly available by the Director-General:

(a)  applications to carry out projects,

(b)  environmental assessment requirements for a project determined by the Director-General or the Minister,

(c)  environmental assessment reports of the Director-General to the Minister,

(d)  approvals to carry out projects given by the Minister,

(e)  applications for the Minister’s approval of concept plans (and approvals of concept plans),

(f)  requests for modifications of approvals given by the Minister and any modifications made by the Minister.

(3)  The Minister may, but is not required to, give reasons to the proponent for:

(a)  any disapproval, or conditions or modifications, of a project, or

(b)  any disapproval, or modifications of, a concept plan for a project, or

(c)  any conditions of approval of a modification of the approval of a project.

(4)  The validity of an approval or other decision under this Part cannot be questioned in any legal proceedings in which the decision may be challenged except those commenced in the Court within 3 months after public notice of the decision was given.

(5)  The only requirement of this Part that is mandatory in connection with the validity of an approval of a project or of a concept plan for a project is a requirement that an environmental assessment with respect to the project is made publicly available under section 75H (or under that section as applied by section 75N). This subsection does not affect the operation of section 75T in relation to a critical infrastructure project.

75Y   Lapsing of approvals

(1)  An approval under this Part may be subject to a condition that it lapses on a specified date unless specified action with respect to the approval has been taken (such as the commencement of work on the project or the submission of an application for approval to carry out a project for which concept approval has been given).

(2)  Any such condition may be modified under this Part to extend the lapsing period. The Minister is to review the approval before extending the lapsing period and may make other modifications to the approval (whether or not requested by the proponent).

75YA   Surrender of approvals and consents

(1)  An approval under this Part may be surrendered, subject to and in accordance with the regulations, by any person entitled to act on the approval.

(2)  A condition of the approval of a project under this Part may require any one or more of the following:

(a)  the surrender under subsection (1) of any other approval under this Part relating to the project or the land concerned,

(b)  the surrender under section 104A of any development consent relating to the project or the land concerned,

(c)  the surrender, subject to and in accordance with the regulations, of a right conferred by Division 10 of Part 4 relating to the project or the land concerned.

75Z   Regulations for purposes of Part

The regulations may make provision for or with respect to the approval of projects (and concept plans for projects) under this Part and to approved projects (and concept plans), including:

(a)  prescribing time limits for dealing with applications or other matters under this Part and deeming acceptance or rejection of applications or other matters if those time limits are not complied with, and

(b)  requiring owners of land on which projects are proposed to be carried out to consent to applications for approvals under this Part, and

(c)  providing for public exhibition, notification and public registers of applications for approvals under this Part (or for the modification of approvals) and of the determination of those applications, and

(d)  the fees for applications and the exercise of functions under this Part.

75ZA   Savings, transitional and other provisions

(1)  Development may be declared to be a project to which this Part applies even though action has been taken under Part 4 or Part 5 before the declaration (whether before or after the commencement of this Part) for the purposes of authorising the carrying out of the development under this Act.

(2)  The regulations may make provision for or with respect to the effect of any such action under Part 4 or Part 5 after the declaration is made or to the effect of the revocation of a declaration after an approval has been given under this Part. In particular, the regulations may make provision for or with respect to:

(a)  the termination or consolidation of consents or approvals under Part 4 or Part 5, and

(b)  the revival of consents or approvals under Part 4 or Part 5 or the preservation of the effect of approvals under this Part, and

(c)  the recognition of any environmental assessment under Part 4 or Part 5 for the purposes of this Part or of any environmental assessment under this Part for the purposes of Part 4 or Part 5.

(3)  Any development that has been approved by the Minister under this Part (at any time after the commencement of this Part) is taken to be a project to which this Part applies, and to have been such a project for the purposes of any application, concept plan or other matter under this Part in relation to the development.

(4)  Subsection (3) extends to things that purport to be done under this Part.

Part 4 Development assessment

Note. The environmental planning legislation comprises 3 elements, namely, this Act, the environmental planning instruments and the regulations made under this Act. The legislative scheme for environmental planning control is, broadly speaking, distributed between the 3 elements as follows:

(a)  This Part of the Act, Part 4, lays the foundation for the legislative scheme. It contains the major concepts and addresses the major matters of principle.

(b)  The environmental planning instruments identify particular forms of development according to the threefold classification that is established by Division 1 of this Part. They also determine whether development is exempt development as referred to in section 76 (2) or complying development as referred to in section 76A (5).

(c)  The regulations contain much of the detail of the various processes that, having regard to the nature of the proposed development, lead to the granting of development consent. They also largely determine whether development is designated development.

Division 1 Carrying out of development—the threefold classification

76   Development that does not need consent

(1) General
If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies.

Note. Environmental assessment of the development may nevertheless be required under Part 5.

(2) Exempt development
An environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development.

(3)  If development is exempt development:

(a)  the development may be carried out, in accordance with the instrument, on land to which the provision applies without the need for development consent, unless that land:

(i)  is critical habitat, or

(ii)  is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987), and

(b)  Part 5 does not apply to the development.

A provision made under subsection (2) has no effect at any time during which the land is land to which paragraph (a) (i) or (ii) applies.

76A   Development that needs consent

(1) General
If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a)  such a consent has been obtained and is in force, and

(b)  the development is carried out in accordance with the consent and the instrument.

(2)  For the purposes of subsection (1), development consent may be obtained:

(a)  by the making of a determination by a consent authority to grant development consent, or

(b)  in the case of complying development, by the issue of a complying development certificate.

(3), (4)  (Repealed)

(5) Complying development
An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.

(6)  A provision under subsection (5) cannot be made:

(a)  (Repealed)

(b)  if the development is designated development, or

(c)  if the development is development for which development consent cannot be granted except with the concurrence of a person other than:

(i)  the consent authority, or

(ii)  the Director-General of National Parks and Wildlife as referred to in section 79B (3), or

(d)  so as to apply to land that is critical habitat, or

(e)  so as to apply to land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987), or

(f)  so as to apply to land that comprises, or on which there is, an item of the environmental heritage:

(i)  that is subject to an interim heritage order under the Heritage Act 1977, or that is listed on the State Heritage Register under that Act, or

(ii)  that is identified as such an item in an environmental planning instrument, or

(g)  so as to apply to land that is identified as an environmentally sensitive area in the environmental planning instrument that makes provision for the complying development.

A provision made under subsection (5) has no effect in relation to development or land at any time during which the development or land is development or land to which paragraph (a)–(g) applies.

Note. Further provisions concerning complying development are found in Division 3 of this Part.

(7)–(9)  (Repealed)

76B   Development that is prohibited

If an environmental planning instrument provides that:

(a)  specified development is prohibited on land to which the provision applies, or

(b)  development cannot be carried out on land with or without development consent,

a person must not carry out the development on the land.

76C   Relationship of this Division to this Act

This Division is subject to the other provisions of this Act, unless express provision is made to the contrary.

Division 2 The procedures for development that needs consent

77   Application of Division

This Division:

(a)  applies to development that may not be carried out except with development consent, but

(b)  does not apply to complying development.

Note. Under this Part, the procedures by which development consent is obtained differ according to whether the development:

(a)  (Repealed)

(b)  is or is not designated development (which it may be declared to be by an environmental planning instrument or the regulations), and

(c)  is or is not integrated development (see Division 5).

77A   Designated development

Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations.

78   The development consent process—the main steps

The main steps in the development consent process are set out in sections 78A–81 and in the regulations made for the purposes of this Part.

78A   Application

(1)  A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

(2)  A single application may be made in respect of one or more of the types of development referred to in paragraphs (a)–(f) of the definition of development in section 4 (1).

(3)  If the consent authority is a council, a person (other than the Crown or a person acting on behalf of the Crown) may, in the same development application, apply for development consent and approval for anything that requires approval under the following provisions of the Table to section 68 of the Local Government Act 1993, namely:

paragraph 1 of Part A

paragraph 1–6 of Part B

paragraph 1–5 of Part C

paragraph 1 of Part E

paragraph 1–5 or 10 of Part F.

(4)  In determining a development application to which subsection (3) applies, the council may apply any of the provisions of or under the Local Government Act 1993 that it could apply if the development application were an application under that Act for the relevant approval. In particular, if development consent is granted, the council may impose a condition that is authorised under that Act to be imposed as a condition of an approval.

(5)  If development consent is granted to a development application to which subsection (3) applies, the council is taken to have granted the relevant approval under the Local Government Act 1993 that authorises the activity, but that Act has no application to the approval so taken to have been granted.

(6)  In granting development consent to a development application to which subsection (3) applies, the council may, without limiting any other condition it may impose, impose, in relation to the approval taken to have been granted under the Local Government Act 1993, either or both of the following conditions:

(a)  a condition that the approval is granted only to the applicant and does not attach to or run with the land to which it applies,

(b)  a condition that the approval is granted for a specified time.

(7)  A development application cannot be made in respect of land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987) unless any consent to the development required under that Act has been obtained.

(8)  A development application must be accompanied by:

(a)  if the application is in respect of designated development—an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations, or

(b)  if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats—a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.

Note. Part 7A of the Threatened Species Conservation Act 1995 provides for certain circumstances in which development is taken not to significantly affect threatened species, populations or ecological communities, or their habitats.

(9)  The regulations may specify other things that are required to be submitted with a development application.

79   Public participation—designated development

(1) Public exhibition and notification
As soon as practicable after a development application is made for consent to carry out designated development, the consent authority must:

(a)  place the application and any accompanying information on public exhibition for a period of not less than 30 days (the submission period) commencing on the day after which notice of the application is first published as referred to in paragraph (d), and

(b)  give written notice of the application in accordance with the regulations:

(i)  to such persons as appear to it to own or occupy the land adjoining the land to which the development application relates, and

(ii)  if practicable, to such other persons as appear to it to own or occupy land the use or enjoyment of which, in its opinion, may be detrimentally affected if the designated development is carried out, and

(iii)  to such other persons as are required to be notified by the regulations, and

(c)  cause notice of the application to be exhibited in accordance with the regulations on the land to which the application relates, and

(d)  cause notice of the application to be published in accordance with the regulations in a newspaper circulating in the locality.

(2)  If land is:

(a)  a lot within the meaning of the Strata Schemes (Freehold Development) Act 1973, a written notice to the owners corporation is taken to be a written notice under subsection (1) (b) to the owner or occupier of each lot within the strata scheme, or

(b)  a lot within the meaning of the Strata Schemes (Leasehold Development) Act 1986, a written notice to the lessor under the leasehold strata scheme concerned and to the owners corporation is taken to be a written notice under subsection (1) (b) to the owner or occupier of each lot within the scheme.

(3)  If land is owned or occupied by more than one person, a written notice to one owner or one occupier is taken to satisfy the requirements of subsection (1) (b).

(4) Inspection of application and accompanying information
During the submission period, any person may inspect the development application and any accompanying information and make extracts from or copies of them.

(5) Making of submissions
During the submission period, any person may make written submissions to the consent authority with respect to the development application. A submission by way of objection must set out the grounds of the objection.

(6) Circumstances in which public exhibition may be dispensed with
If:

(a)  a development application for designated development is amended, or substituted, or withdrawn and later replaced before it has been determined by the consent authority, and

(b)  the consent authority has complied with subsections (1), (2) and (3) in relation to the original application, and

(c)  the consent authority is of the opinion that the amended, substituted or later application differs only in minor respects from the original application,

      the consent authority may decide to dispense with further compliance with subsection (1) in relation to the amended, substituted or later application. In that event, compliance with subsection (1) in relation to the original application is taken to be compliance in relation to the amended, substituted or later application.

(7)  The consent authority must give written notice to the applicant of its decision under subsection (6) at or before the time notice of the determination of the development application is given under section 81.

79A   Public participation—advertised development and other notifiable development

(1)  Notice of a development application for consent to carry out advertised development is to be given in accordance with this Act, the regulations, the relevant environmental planning instrument and any relevant development control plan.

(2)  A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application.

79B   Consultation and concurrence

(1) General
If, by an environmental planning instrument, the consent authority, before determining the development application, is required to consult with or to obtain the concurrence of a person, the consent authority must, in accordance with the environmental planning instrument and the regulations, consult with or obtain the concurrence of the person, unless the consent authority determines to refuse to grant development consent.

(2)  However, if, by an environmental planning instrument, the Minister, before determining a development application, is required to obtain the concurrence of a person, the Minister is required only to consult with the person.

(3) Consultation and concurrence—threatened species
Development consent cannot be granted for:

(a)  development on land that is, or is a part of, critical habitat, or

(b)  development that is likely to significantly affect a threatened species, population, or ecological community, or its habitat,

      without the concurrence of the Director-General of National Parks and Wildlife or, if a Minister is the consent authority, unless the Minister has consulted with the Minister administering the Threatened Species Conservation Act 1995.

Note. If a biobanking statement has been issued in respect of the development under Part 7A of the Threatened Species Conservation Act 1995, the development is taken not to significantly affect threatened species, populations or ecological communities, or their habitats.

(4)  Despite subsection (3), if the Minister administering the Threatened Species Conservation Act 1995 considers that it is appropriate, that Minister may:

(a)  elect to act in place of the Director-General of National Parks and Wildlife for the purposes of that subsection, or

(b)  review and amend any recommendations that that Director-General proposes to make, or any advice that that Director-General proposes to offer, for the purposes of that subsection.

(5)  In deciding whether or not concurrence should be granted under subsection (3), the Director-General of National Parks and Wildlife or the Minister administering the Threatened Species Conservation Act 1995 must take the following matters into consideration:

(a)  any species impact statement that accompanied the development application,

(b)  any assessment report prepared by the consent authority,

(c)  any submissions received concerning the development application,

(d)  any relevant recovery plan or threat abatement plan,

(e)  whether the development proposed is likely to reduce the long-term viability of the species, population or ecological community in the region,

(f)  whether the development is likely to accelerate the extinction of the species, population or ecological community or place it at risk of extinction,

(g)  the principles of ecologically sustainable development,

(h)  the likely social and economic consequences of granting or of not granting concurrence.

(6)  The Minister administering the Threatened Species Conservation Act 1995 must provide the Minister who is the consent authority with any recommendations made by the Director-General of National Parks and Wildlife concerning determination of a development application relating to development referred to in subsection (3) and, if that Minister does not accept any one or more of the recommendations, that Minister must include in the determination the recommendations not accepted and that Minister’s reasons for not accepting them.

(7)  A copy of the reasons referred to in subsection (6) must be available for public inspection, during ordinary office hours, at the head office of the National Parks and Wildlife Service.

(8) Granting or refusal of concurrence
A person whose concurrence to development is required may:

(a)  grant concurrence to the development, either unconditionally or subject to conditions, or

(b)  refuse concurrence to the development.

In deciding whether to grant concurrence, the person must take into consideration only the matters stated pursuant to section 30 (3) and applicable to the development (unless the relevant environmental planning instrument is a deemed instrument referred to in Division 2 of Part 21 of Schedule 6).

(9) Giving effect to concurrence
A consent authority that grants consent to the carrying out of development for which a concurrence has been granted must grant the consent subject to any conditions of the concurrence. This does not affect the right of the consent authority to impose conditions under section 80A not inconsistent with the conditions of the concurrence or to refuse consent.

(10) Avoidance of consents subject to concurrence
If, by an environmental planning instrument or by subsection (3), a development application may not be determined by the granting of consent without the concurrence of a specified person, a consent granted:

(a)  without that concurrence, or

(b)  not subject to any conditions of the concurrence,

      is, subject to sections 102–104, voidable.

(11)  However, if the specified person fails to inform the consent authority of the decision concerning concurrence within the time allowed for doing so, the consent authority may determine the development application without the concurrence of the specified person and a development consent so granted is not voidable on that ground.

(12)  Nothing in this section affects any liability of a consent authority in respect of a consent granted as referred to in subsection (10) (a) or (b).

79BA   Consultation and development consent—certain bush fire prone land

(1)  Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land unless the consent authority:

(a)  is satisfied that the development conforms to the specifications and requirements of Planning for Bushfire Protection, ISBN 0 9585987 8 9, produced by the NSW Rural Fire Service (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document), that are relevant to the development, or

(b)  has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire.

(2)  In this section:

special fire protection purpose has the same meaning as it has in section 100B of the Rural Fires Act 1997.

79C   Evaluation

(1) Matters for consideration—general
In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a)  the provisions of:

(i)  any environmental planning instrument, and

(ii)  any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)  any development control plan, and

(iiia)  any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv)  the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

      that apply to the land to which the development application relates,

(b)  the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)  the suitability of the site for the development,

(d)  any submissions made in accordance with this Act or the regulations,

(e)  the public interest.

Note. See section 75P (2) (a) for circumstances in which determination of development application to be generally consistent with approved concept plan for a project under Part 3A.

Note. If a biobanking statement has been issued in respect of a development under Part 7A of the Threatened Species Conservation Act 1995, the consent authority is not required to take into consideration the likely impact of the development on biodiversity values.

(2) Compliance with non-discretionary development standards—development other than complying development
If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority:

(a)  is not entitled to take those standards into further consideration in determining the development application, and

(b)  must not refuse the application on the ground that the development does not comply with those standards, and

(c)  must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,

      and the discretion of the consent authority under this section and section 80 is limited accordingly.

(3)  If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards:

(a)  subsection (2) does not apply and the discretion of the consent authority under this section and section 80 is not limited as referred to in that subsection, and

(b)  a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.

Note. The application of non-discretionary development standards to complying development is dealt with in section 85A (3) and (4).

(4) Consent where an accreditation is in force
A consent authority must not refuse to grant consent to development 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 consent authority and an employee of a consent authority do not incur any liability as a consequence of acting in accordance with subsection (4).

(6) Definitions
In this section:

(a)  reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and

(b)  non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.

80   Determination

(1) General
A consent authority is to determine a development application by:

(a)  granting consent to the application, either unconditionally or subject to conditions, or

(b)  refusing consent to the application.

(2)  Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

(3) “Deferred commencement” consent
A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, 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.

(4) Total or partial consent
A development consent may be granted:

(a)  for the development for which the consent is sought, or

(b)  for that development, except for a specified part or aspect of that development, or

(c)  for a specified part or aspect of that development.

(5)  The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development.

Note. See also Division 2A for special procedures concerning staged development applications.

(6) Restrictions on determination of development applications where Planning Assessment Commission review is held concerning environmental aspects of proposed development
A consent authority that has received notice that the Minister has requested that a review be held by the Planning Assessment Commission with respect to the environmental aspects of proposed development or part of any such proposed development the subject of a development application:

(a)  must not determine the development application in so far as it relates to proposed designated development, and

(b)  must not determine the development application in so far as it relates to development that is not designated development until:

(i)  the review has been held, and

(ii)  the consent authority has considered the findings and recommendations of the Planning Assessment Commission and any comments made by the Minister that accompanied those findings and recommendations when they were forwarded to the consent authority.

(7)  If the Minister has requested that a review be held by the Planning Assessment Commission in relation to any proposed designated development the subject of a development application, the Minister is to determine the application after the review has been held and the Minister has considered the findings and recommendations of the Commission.

(8)  Sections 82, 97 and 98 do not apply to or in respect of the development application determined by the Minister under subsection (7) or its determination.

(9) Restrictions on determination of development applications for designated development
A consent authority must not determine a development application for designated development:

(a)  until after the submission period (within the meaning of section 79 (1) (a)) has expired, or

(b)  if a submission is made with respect to the application within the submission period, until after 21 days following the date on which a copy of the submission is forwarded to the Director-General have expired.

(10)  Subsection (9) (b) does not apply:

(a)  to a consent authority being the Minister or the Director-General, or

(b)  if the Director-General has waived the requirement that submissions be forwarded to the Director-General for a specified development application or for a specified class of development applications.

(10A)  (Repealed)

(11) Other restrictions on determination of development applications
The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined.

(12) Effect of issuing construction certificate
If a consent authority or an accredited certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 96).

(13), (14)  (Repealed)

80A   Imposition of conditions

(1) Conditions—generally
A condition of development consent may be imposed if:

(a)  it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or

(b)  it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 10 in relation to the land to which the development application relates, or

(c)  it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or

(d)  it limits the period during which development may be carried out in accordance with the consent so granted, or

(e)  it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or

(f)  it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or

(g)  it modifies details of the development the subject of the development application, or

(h)  it is authorised to be imposed under section 80 (3) or (5), subsections (5)–(9) of this section or section 94, 94A, 94EF or 94F.

(2) Ancillary aspects of development
A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.

(3)  A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 97, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect.

(4) Conditions expressed in terms of outcomes or objectives
A consent may be granted subject to a condition expressed in a manner that identifies both of the following:

(a)  one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,

(b)  clear criteria against which achievement of the outcome or objective must be assessed.

(5) Modification or surrender of consents or existing use rights
If a consent authority imposes (as referred to in subsection (1) (b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 10, the consent or right may be modified or surrendered subject to and in accordance with the regulations.

(6) Conditions and other arrangements concerning security
A development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of any one or more of the following:

(a)  making good any damage caused to any property of the consent authority (or any property of the corporation) as a consequence of the doing of anything to which the consent relates,

(b)  completing any public work (such as road work, kerbing and guttering, footway construction, stormwater drainage and environmental controls) required in connection with the consent,

(c)  remedying any defects in any such public work that arise within 6 months after the work is completed.

(7)  The security is to be for such reasonable amount as is determined by the consent authority.

(8)  The security may be provided, at the applicant’s choice, by way of:

(a)  deposit with the consent authority, or

(b)  a guarantee satisfactory to the consent authority.

(9)  The security is to be provided before carrying out any work in accordance with the development consent or at such other time as may be agreed to by the consent authority.

(10)  The funds realised from a security may be paid out to meet any cost referred to in subsection (6). Any balance remaining is to be refunded to, or at the direction of, the persons who provided the security.

(10A)  A condition of a consent has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development.

(10B) Review of extended hours of operation and number of persons permitted
A development consent that is granted subject to a reviewable condition may be granted subject to a further condition that the consent authority may review that condition at any time or at intervals specified by the consent and that the reviewable condition may be changed on any such review.

(10C)  The regulations may make provision for or with respect to the kinds of development that may be subject to a further condition referred to in subsection (10B), the matters that must be included in such a condition and the procedures for a review under such a condition.

(10D)  A decision by a consent authority to change a reviewable condition on a review is taken to be a determination of a development consent for the purposes of this Act.

Note. A review application or an appeal against a determination of a development consent may be made under Division 7A or 8.

(10E)  For the purposes of subsections (10B)–(10D), a reviewable condition means any of the following:

(a)  a condition that permits extended hours of operation (in addition to other specified hours of operation),

(b)  a condition that increases the maximum number of persons permitted in a building (in addition to the maximum number otherwise permitted).

(11) Prescribed conditions
A development consent is subject to such conditions as may be prescribed by the regulations.

81   Post-determination notification

(1)  The consent authority must, in accordance with the regulations, notify its determination of a development application to:

(a)  the applicant, and

(b)  in the case of a development application for consent to carry out designated development, each person who made a submission under section 79 (5), and

(c)  such other persons as are required by the regulations to be notified of the determination of the development application.

(2)  If the consent authority is not the council, the consent authority must notify the council of its determination.

(3)  In the case of a development application for consent to carry out designated development, the consent authority must also notify each person who made a submission under section 79 (5) by way of objection of the person’s rights to appeal against the determination and of the applicant’s rights to appeal against the determination.

81A   Effects of development consents and commencement of development

(1) Erection of buildings
A development consent 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 development application, 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.

(2)  The erection of a building in accordance with a development consent must not be commenced until:

(a)  a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and

(b)  the person having the benefit of the development consent 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

(b1)  the principal certifying authority has, no later than 2 days before the building work commences:

(i)  notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and

(ii)  notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

(b2)  the person having the benefit of the development consent, 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

(c)  the person having the benefit of the development consent 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.

(3) Subdivision of land
A development consent 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.

(4)  Subdivision work in accordance with a development consent must not be commenced until:

(a)  a construction certificate for the subdivision work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and

(b)  the person having the benefit of the development consent has appointed a principal certifying authority for the subdivision work, and

(b1)  the principal certifying authority has, no later than 2 days before the subdivision work commences:

(i)  notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and

(ii)  notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the subdivision work, and

(c)  the person having the benefit of the development consent 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.

(5) Regulations may provide for the issue of certificates
The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.

(6) Crown building work
Subsections (2) and (4) do not apply in relation to Crown building work that is certified, in accordance with section 109R, to comply with the technical provisions of the State’s building laws.

(7) Penalty for contravention of subsection (2) or (4)
The maximum penalty that may be imposed for a contravention of subsection (2) or (4) is 1,000 penalty units.

82   Circumstances in which consent is taken to have been refused

(1)  A consent authority that has not determined a development application within the relevant period, prescribed by the regulations, applicable to the development the subject of the development application is, for the purpose only of section 97, taken to have determined the application by refusing consent on the date on which the period expires.

(2)  Nothing in subsection (1) prevents a consent authority from determining a development application after the expiration of the relevant period referred to in that subsection, whether on a review under section 82A or otherwise.

(3)  A determination pursuant to subsection (2) does not, subject to subsection (4), prejudice or affect the continuance or determination of an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made.

(4)  If a determination pursuant to subsection (2) is made by granting consent, the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal (being an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made) withdrawn at any time prior to the determination of that appeal.

82A   Review of determination

(1)  If the consent authority is a council, an applicant may request the council to review a determination of the applicant’s application, other than:

(a)  a determination to issue or refuse to issue a complying development certificate, or

(b)  a determination in respect of designated development, or

(c)  a determination in respect of integrated development, or

(d)  a determination made by the council under section 116E in respect of an application by the Crown.

(2)  A request for a review may be made at any time, subject to subsection (2A).

(2A)  A determination cannot be reviewed:

(a)  after the time limited for the making of an appeal under section 97 expires, if no such appeal is made against the determination, or

(b)  after an appeal under section 97 against the determination is disposed of by the Court, if such an appeal is made against the determination.

(3)  The prescribed fee must be paid in connection with a request for a review.

(3A)  In requesting a review, the applicant may make amendments to the development described in the original application, subject to subsection (4) (c).

(4)  The council may review the determination if:

(a)  it has notified the request for review in accordance with:

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the council has made a development control plan that requires the notification or advertising of requests for the review of its determinations, and

(b)  it has considered any submissions made concerning the request for review within any period prescribed by the regulations or provided by the development control plan, as the case may be, and

(c)  in the event that the applicant has made amendments to the development described in the original application, the consent authority is satisfied that the development, as amended, is substantially the same development as the development described in the original application.

(4A)  As a consequence of its review, the council may confirm or change the determination.

(5)  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 (6) to make the review.

(6)  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.

(7)  The council must give notice of the result of the review to the applicant as soon as practicable after the review.

(8)  If on the review the council grants development consent, or varies the conditions of a development consent, the council must endorse on the notice the date from which the consent, or the consent as varied, operates.

(9)  If on a review the council changes a determination, the changed determination replaces the earlier determination as from the date of the review.

(10)  If on a review the council grants development consent, or varies the conditions of a development consent, the council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal made under section 97 in respect of its determination withdrawn at any time prior to the determination of that appeal.

(11)  A decision on a review may not be further reviewed under this section.

83   Date from which consent operates

(1)  Subject to subsections (2) and (3), if a determination is made by the granting of consent, the consent becomes effective and operates from:

(a)  except as provided in paragraph (b)—the date that is endorsed on the notice given to the applicant in accordance with section 81 (1) of the determination of the development application or under section 82A (7), or

(b)  in the case of designated development to which an objection has been made in accordance with section 79 (5):

(i)  if consent was granted under section 80 (7) following the holding of a review by the Planning Assessment Commission—the date that is endorsed on the notice of the determination of the development application given to the applicant in accordance with section 81 (1), or

(ii)  in any other case—the expiration of 28 days from the date that is endorsed on the notice of the determination of the development application given to the applicant in accordance with section 81 (1).

(2)  Subject to subsection (3), if a determination is made by the granting of consent or the granting of consent subject to conditions, and an appeal has been made under section 97 or 98, the consent:

(a)  ceases to be, or does not become, effective pursuant to subsection (1), and

(b)  becomes effective and operates from the date of the determination of that appeal, except where that decision is to refuse development consent.

(3)  A consent referred to in subsection (1) or (2) is void and, except for the purposes of section 97 or 98, is taken never to have been granted if:

(a)  an appeal under section 97 is dismissed and development consent is refused, or

(b)  an appeal under section 98 is upheld, with the effect that development consent is refused.

(4)  If a determination is made by refusing consent or if an application is taken by section 82 to have been so determined, and the decision on the appeal made pursuant to section 97 in respect of that determination has the effect of granting consent, the decision is taken to be a consent granted under this Division and that consent is effective and operates from the date of that decision.

(5)  Despite any other provision of this section, a development consent is taken to become effective and operate from such date as may be fixed by:

(a)  a court (whether or not the Land and Environment Court) that finally determines an appeal on a question of law which confirms the validity of, or results in the granting of, the consent, or

(b)  the Land and Environment Court, if the validity of a consent granted by that Court is confirmed by, or the consent is granted by that Court as a result of, such a final determination made by another court that has not fixed that date.

(6)  A development consent in respect of a development application that is taken to have been determined under Part 5A operates from the date on which it is taken to have been determined.

Division 2A Special procedures concerning staged development applications

83A   Application of this Division

This Division applies to staged development applications and to consents granted on the determination of those applications.

83B   Staged development applications

(1)  For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development.

(2)  A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application.

(3)  If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless:

(a)  consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or

(b)  the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.

(4)  The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3).

83C   Staged development applications as alternative to dcp required by environmental planning instruments

(1)  An environmental planning instrument cannot require the making of a staged development application before development is carried out.

(2)  However, if an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, that obligation may be satisfied by the making and approval of a staged development application in respect of that land.

Note. Section 74D (5) also authorises the making of a development application where the relevant planning authority refuses to make, or delays making, a development control plan.

(3)  Any such staged development application is to contain the information required to be included in the development control plan by the environmental planning instrument or the regulations.

83D   Status of staged development applications and consents

(1)  The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a staged development application and a development consent granted on the determination of any such application.

Note. Applicable provisions in respect of staged development applications include provisions relating to designated development, integrated development and regulations made under section 105.

(2)  While any consent granted on the determination of a staged development application for a site remains in force, the determination of any further development application in respect of that site cannot be inconsistent with that consent.

(3)  Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a staged development application.

Note. See section 95 (2) which prevents a reduction in the 5 year period of a development consent.

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.

Division 4 Crown developments

88   Definitions

(1)  In this Division:

applicable regional panel for development means the regional panel for the part of the State in which the development is to be carried out.

Crown development application means a development application made by or on behalf of the Crown.

regional panel means a joint regional planning panel.

(2)  A reference in this Division to the Crown:

(a)  includes a reference to a person who is prescribed by the regulations to be the Crown for the purposes of this Division, and

(b)  does not include a reference to:

(i)  a capacity of the Crown that is prescribed by the regulations not to be the Crown for the purposes of this Division, or

(ii)  a person who is prescribed by the regulations not to be the Crown for the purposes of this Division.

89   Determination of Crown development applications

(1)  A consent authority (other than the Minister) must not:

(a)  refuse its consent to a Crown development application, except with the approval of the Minister, or

(b)  impose a condition on its consent to a Crown development application, except with the approval of the applicant or the Minister.

(2)  If the consent authority fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the consent authority may refer the application:

(a)  to the Minister, if the consent authority is not a council, or

(b)  to the applicable regional panel, if the consent authority is a council.

(3)  An applicable regional panel to which a Crown development application is referred may exercise the functions of the council as a consent authority (subject to subsection (1)) with respect to the application.

(4)  A decision by a regional panel in determining a Crown development application is taken for all purposes to be the decision of the council.

(5)  If an applicable regional panel fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the panel may refer the application to the Minister.

(6)  The party that refers an application under this section must notify the other party in writing that the application has been referred.

(7)  When an application is referred under this section to an applicable regional panel or the Minister, the consent authority must, as soon as practicable, submit to the panel or the Minister:

(a)  a copy of the development application, and

(b)  details of its proposed determination of the development application, and

(c)  the reasons for the proposed determination, and

(d)  any relevant reports of another public authority.

89A   Directions by Minister

(1)  On a referral being made by a consent authority or an applicable regional panel to the Minister under this Division, the Minister may direct the relevant consent authority, within the time specified in the direction:

(a)  to approve the Crown development application, with or without specified conditions, or

(b)  to refuse the Crown development application.

(2)  A consent authority must comply with a direction by the Minister.

(3)  If the consent authority fails to comply, the consent authority is taken, on the last date for compliance specified in the direction, to have determined the Crown development application in accordance with the Minister’s direction.

(4)  Despite subsection (2), a consent authority may vary a condition specified by the Minister with the approval of the applicant.

89B   Modification of Crown development consents

This Division applies to an application made by or on behalf of the Crown under section 96 in the same way as it applies to an application for development consent.

Division 5 Special procedure for integrated development

90   Application of this Division

(1)  This Division applies to integrated development.

(2)  However, this Division does not apply to development the subject of a development application made by or on behalf of the Crown (within the meaning of Division 4), other than development that requires a heritage approval.

90A   Definitions

In this Division:

approval means a consent, licence, permit, permission or any form of authorisation.

approval body means a person who may grant an approval.

first renewal of an approval means, in the case of an environment protection licence under the Protection of the Environment Operations Act 1997, the first review of the licence under section 78.

grant an approval includes give or issue an approval.

heritage approval means an approval in respect of the doing or carrying out of an act, matter or thing referred to in section 57 (1) of the Heritage Act 1977.

91   What is “integrated development”?

(1)  Integrated development is development (not being complying development) that, in order for it to be carried out, requires development consent and one or more of the following approvals:

Act	Provision	Approval
Fisheries Management Act 1994	s 144	aquaculture permit
	s 201	permit to carry out dredging or reclamation work
	s 205	permit to cut, remove, damage or destroy marine vegetation on public water land or an aquaculture lease, or on the foreshore of any such land or lease
	s 219	permit to: (a)  set a net, netting or other material, or (b)  construct or alter a dam, floodgate, causeway or weir, or (c)  otherwise create an obstruction,       across or within a bay, inlet, river or creek, or across or around a flat
Heritage Act 1977	s 58	approval in respect of the doing or carrying out of an act, matter or thing referred to in s 57 (1)
Mine Subsidence Compensation Act 1961	s 15	approval to alter or erect improvements within a mine subsidence district or to subdivide land therein
Mining Act 1992	ss 63, 64	grant of mining lease
National Parks and Wildlife Act 1974	s 90	consent to knowingly destroy, deface or damage or knowingly cause or permit the destruction or defacement of or damage to, a relic or Aboriginal place
Petroleum (Onshore) Act 1991	s 9	grant of production lease
Protection of the Environment Operations Act 1997	ss 43 (a), 47 and 55	Environment protection licence to authorise carrying out of scheduled development work at any premises.
	ss 43 (b), 48 and 55	Environment protection licence to authorise carrying out of scheduled activities at any premises (excluding any activity described as a “waste activity” but including any activity described as a “waste facility”).
	ss 43 (d), 55 and 122	Environment protection licences to control carrying out of non-scheduled activities for the purposes of regulating water pollution resulting from the activity.
Roads Act 1993	s 138	consent to: (a)  erect a structure or carry out a work in, on or over a public road, or (b)  dig up or disturb the surface of a public road, or (c)  remove or interfere with a structure, work or tree on a public road, or (d)  pump water into a public road from any land adjoining the road, or (e)  connect a road (whether public or private) to a classified road
Rural Fires Act 1997	s 100B	authorisation under section 100B in respect of bush fire safety of subdivision of land that could lawfully be used for residential or rural residential purposes or development of land for special fire protection purposes
Water Management Act 2000	ss 89, 90, 91	water use approval, water management work approval or activity approval under Part 3 of Chapter 3

(1A)  Development is integrated development in respect of a licence that may be granted under the Protection of the Environment Operations Act 1997 to control the carrying out of non-scheduled activities for the purpose of regulating water pollution only if:

(a)  the development application stipulates that an application for such a licence has been or will be made in respect of the development, or

(b)  the Environment Protection Authority notifies the consent authority in writing before the development application is granted or refused that an application for such a licence has been or may be made in respect of the development.

(2)  Development is not integrated development in respect of the consent required under section 90 of the National Parks and Wildlife Act 1974 unless:

(a)  a relic referred to in that section is known, immediately before the development application is made, to exist on the land to which the development application applies, or

(b)  the land to which the development application applies is an Aboriginal place within the meaning of that Act immediately before the development application is made.

(3)  Development is not integrated development in respect of the consent required under section 138 of the Roads Act 1993 if, in order for the development to be carried out, it requires the development consent of a council and the approval of the same council.

(4)  Development is not integrated development in respect of the approval required under section 57 of the Heritage Act 1977 if the approval that is required is the approval of a council.

91A   Development that is integrated development

(1)  This section applies to the determination of a development application for development that is integrated development.

(2)  Before granting development consent to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such approval if the consent authority determines to refuse to grant development consent.

(3)  A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purposes of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval.

(4)  If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application.

(5)  If the approval body fails to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval, or of the general terms of its approval:

(a)  the consent authority may determine the development application, and

(b)  if the consent authority determines the development application by granting consent:

(i)  the approval body cannot refuse to grant approval to an application for approval in respect of the development, and

(ii)  an approval granted by the approval body must not be inconsistent with the development consent, and

(iii)  section 93 applies to an approval so granted as if it were an approval the general terms of which had been provided to the consent authority,

      despite any other Act or law.

(6)  If a development application is determined, whether or not by the granting of development consent, the consent authority must notify all relevant approval bodies of the determination.

Note. If a dispute arises under this section between a consent authority and an approval body, the dispute may be dealt with under section 121.

92   Consent authority may not refuse certain development applications

(1)  This section applies to the determination by a consent authority of a development application for development that is integrated development for which a heritage approval is required.

(2)  A consent authority must not refuse development consent on heritage grounds if the same development is the subject of a heritage approval.

92A   Effect of giving notice

If, in relation to integrated development:

(a)  notice of a development application is given under section 79 or 79A, and

(b)  the consent authority obtains from an approval body the general terms of any approval proposed to be granted by the approval body in relation to the development or the approval body fails to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval or of the general terms of its approval, and

(c)  the consent authority determines the application by granting consent,

the notice is taken to be notice duly given for the purpose of any law that requires the giving of public notice in relation to an application for the approval of the approval body to that development.

93   Granting and modification of approval by approval body

(1)  Despite any other Act or law, an approval body must, in respect of integrated development for which development consent has been granted following the provision by the approval body of the general terms of the approval proposed to be granted by the approval body in relation to the development, grant approval to any application for approval that is made within 3 years after the date on which the development consent is granted if, within that 3-year period, the development consent has not lapsed or been revoked.

(2)  The approval may be granted subject to conditions that are not inconsistent with the development consent. Neither the provisions of section 80A (6)–(10) nor the imposition of conditions as to security by the consent authority prevent an approval body from imposing conditions, or additional conditions, as to security.

(3)  Subsection (1) does not apply to or limit the granting of approval to an application for renewal of an approval.

(4)  An approval body cannot vary the terms of an approval granted for integrated development for which development consent has been granted before the expiration, lapsing or first renewal of the approval, whichever first occurs, other than to make variations that are not inconsistent with the development consent.

(5)  Subsection (4) does not prevent:

(a)  the modification, in accordance with section 96 or 96A, of the development consent at any time, or

(b)  if a development consent is modified as referred to in paragraph (a) before the expiration, lapsing or first renewal, whichever first occurs, of the approval, the modification in accordance with law of the approval to any necessary consequential extent, or

(c)  the exercise by the approval body of any of its other functions, such as the issuing of orders, the suspension or cancellation of an approval or the prosecution of offences.

93A   Effect of approval if the approval body is also a concurrence authority

If the concurrence of a person who is also an approval body is required before a consent authority may grant a development consent, the granting of the general terms of its approval is taken to also grant the concurrence provided that the matters to be considered in granting the general terms of its approval are the same as those required to be considered in deciding whether or not to grant the concurrence.

93B   Rights of appeal

(1) Applicant’s appeal rights
This Division does not affect any right of objection, appeal or review conferred on an applicant for an approval under the Act that provides for the granting of the approval, except as provided by subsection (2).

(2) Restriction on appellate body
Despite any other Act or law, section 93 applies to a person, court or tribunal that deals with an objection, appeal or review referred to in this section in the same way as it applies to an approval body.

Division 6 Development contributions

Subdivision 1 Preliminary

93C   Definitions

In this Division:

contributions plan means a contributions plan approved under section 94EA.

development corporation means a development corporation constituted under Part 2 of the Growth Centres (Development Corporations) Act 1974.

growth centre has the same meaning as it has in the Growth Centres (Development Corporations) Act 1974.

planning agreement means a voluntary agreement referred to in section 93F.

planning authority means:

(a)  a council, or

(b)  the Minister, or

(c)  the corporation, or

(d)  a development corporation (within the meaning of the Growth Centres (Development Corporations) Act 1974), or

(e)  a public authority declared by the regulations to be a planning authority for the purposes of this Division.

public amenities or public services do not include water supply or sewerage services.

special contributions area means land for the time being described in Schedule 5A.

93D   Relationship to planning instruments

This Division does not derogate from or otherwise affect any provision of an environmental planning instrument, whether made before or after the commencement of this section, that requires satisfactory arrangements to be made for the provision of particular kinds of public infrastructure, facilities or services before development is carried out.

93E   Provisions relating to money etc contributed under this Division (other than Subdivision 4)

(1)  A consent authority or planning authority is to hold any monetary contribution or levy that is paid under this Division (other than Subdivision 4) in accordance with the conditions of a development consent or with a planning agreement for the purpose for which the payment was required, and apply the money towards that purpose within a reasonable time.

(2)  However, money paid under this Division (other than Subdivision 4) for different purposes in accordance with the conditions of development consents may be pooled and applied progressively for those purposes, subject to the requirements of any relevant contributions plan or ministerial direction under this Division (other than Subdivision 4).

(3)  Land dedicated in accordance with this Division (other than Subdivision 4) is to be made available by the consent authority or planning authority for the purpose for which the dedication was required and within a reasonable time.

(4)  A reference in this section to a monetary contribution or levy includes a reference to any additional amount earned from its investment.

Subdivision 2 Planning agreements

93F   Planning agreements

(1)  A planning agreement is a voluntary agreement or other arrangement under this Division between a planning authority (or 2 or more planning authorities) and a person (the developer):

(a)  who has sought a change to an environmental planning instrument, or

(b)  who has made, or proposes to make, a development application, or

(c)  who has entered into an agreement with, or is otherwise associated with, a person to whom paragraph (a) or (b) applies,

      under which the developer is required to dedicate land free of cost, pay a monetary contribution, or provide any other material public benefit, or any combination of them, to be used for or applied towards a public purpose.

(2)  A public purpose includes (without limitation) any of the following:

(a)  the provision of (or the recoupment of the cost of providing) public amenities or public services,

(b)  the provision of (or the recoupment of the cost of providing) affordable housing,

(c)  the provision of (or the recoupment of the cost of providing) transport or other infrastructure relating to land,

(d)  the funding of recurrent expenditure relating to the provision of public amenities or public services, affordable housing or transport or other infrastructure,

(e)  the monitoring of the planning impacts of development,

(f)  the conservation or enhancement of the natural environment.

(3)  A planning agreement must provide for the following:

(a)  a description of the land to which the agreement applies,

(b)  a description of:

(i)  the change to the environmental planning instrument to which the agreement applies, or

(ii)  the development to which the agreement applies,

(c)  the nature and extent of the provision to be made by the developer under the agreement, the time or times by which the provision is to be made and the manner by which the provision is to be made,

(d)  in the case of development, whether the agreement excludes (wholly or in part) or does not exclude the application of section 94, 94A or 94EF to the development,

(e)  if the agreement does not exclude the application of section 94 to the development, whether benefits under the agreement are or are not to be taken into consideration in determining a development contribution under section 94,

(f)  a mechanism for the resolution of disputes under the agreement,

(g)  the enforcement of the agreement by a suitable means, such as the provision of a bond or guarantee, in the event of a breach of the agreement by the developer.

(3A)  A planning agreement cannot exclude the application of section 94 or 94A in respect of development unless the consent authority for the development or the Minister is a party to the agreement.

(4)  A provision of a planning agreement in respect of development is not invalid by reason only that there is no connection between the development and the object of expenditure of any money required to be paid by the provision.

Note. See section 93E (1), which requires money paid under a planning agreement to be applied for the purpose for which it was paid within a reasonable time.

(5)  If a planning agreement excludes the application of section 94 or 94A to particular development, a consent authority cannot impose a condition of development consent in respect of that development under either of those sections (except in respect of the application of any part of those sections that is not excluded by the agreement).

(5A)  A planning authority, other than the Minister, is not to enter into a planning agreement excluding the application of section 94EF without the approval of:

(a)  the Minister, or

(b)  a development corporation designated by the Minister to give approvals under this subsection.

(6)  If a planning agreement excludes benefits under a planning agreement from being taken into consideration under section 94 in its application to development, section 94 (6) does not apply to any such benefit.

(7)  Any Minister, public authority or other person approved by the Minister is entitled to be an additional party to a planning agreement and to receive a benefit under the agreement on behalf of the State.

(8)  A council is not precluded from entering into a joint planning agreement with another council or other planning authority merely because it applies to any land not within, or any purposes not related to, the area of the council.

(9)  A planning agreement cannot impose an obligation on a planning authority:

(a)  to grant development consent, or

(b)  to exercise any function under this Act in relation to a change to an environmental planning instrument.

(10)  A planning agreement is void to the extent, if any, to which it requires or allows anything to be done that, when done, would breach this section or any other provision of this Act, or would breach the provisions of an environmental planning instrument or a development consent applying to the relevant land.

(11)  A reference in this section to a change to an environmental planning instrument includes a reference to the making or revocation of an environmental planning instrument.

93G   Information about planning agreements

(1)  A planning agreement cannot be entered into, and a planning agreement cannot be amended or revoked, unless public notice has been given of the proposed agreement, amendment or revocation, and a copy of the proposed agreement, amendment or revocation has been available for inspection by the public for a period of not less than 28 days.

(2)  The regulations may provide for the public notice to be given under subsection (1) and may provide that it may be given contemporaneously with, in association with, or as part of, any other public notice or public notification that is required to be given of any matter relevant to the planning agreement.

(3)  If the Minister is not a party to a planning agreement, the relevant planning authority that is a party to the agreement must provide to the Minister:

(a)  a copy of the agreement within 14 days after the agreement is entered into, and

(b)  if the agreement is amended, a copy of the amendment within 14 days after the amendment is made, and

(c)  if the agreement is revoked, notice of the revocation within 14 days after the revocation occurs.

(4)  If a council is not a party to a planning agreement that applies to the area of the council, the relevant planning authority that is a party to the agreement must provide to the council:

(a)  a copy of the agreement within 14 days after the agreement is entered into, and

(b)  if the agreement is amended, a copy of the amendment within 14 days after the amendment is made, and

(c)  if the agreement is revoked, notice of the revocation within 14 days after the revocation occurs.

(5)  A planning authority that has entered into one or more planning agreements must, while any such planning agreements remain in force, include in its annual report particulars of compliance with and the effect of the planning agreements during the year to which the report relates.

93H   Registered planning agreements to run with land

(1)  A planning agreement can be registered under this section if the following persons agree to its registration:

(a)  if the agreement relates to land under the Real Property Act 1900—each person who has an estate or interest in the land registered under that Act, or

(b)  if the agreement relates to land not under the Real Property Act 1900—each person who is seised or possessed of an estate or interest in the land.

(2)  On lodgement by a planning authority of an application for registration in a form approved by the Registrar-General, the Registrar-General is to register the planning agreement:

(a)  by making an entry in the relevant folio of the Register kept under the Real Property Act 1900 if the agreement relates to land under that Act, or

(b)  by registering the agreement in the General Register of Deeds if the agreement relates to land not under the Real Property Act 1900.

(3)  A planning agreement that has been registered by the Registrar-General under this section is binding on, and is enforceable against, the owner of the land from time to time as if each owner for the time being had entered into the agreement.

(4)  A reference in this section to a planning agreement includes a reference to any amendment or revocation of a planning agreement.

93I   Circumstances in which planning agreements can or cannot be required to be made

(1)  A provision of an environmental planning instrument (being a provision made after the commencement of this section):

(a)  that expressly requires a planning agreement to be entered into before a development application can be made, considered or determined, or

(b)  that expressly prevents a development consent from being granted or having effect unless or until a planning agreement is entered into,

      has no effect.

(2)  A consent authority cannot refuse to grant development consent on the ground that a planning agreement has not been entered into in relation to the proposed development or that the developer has not offered to enter into such an agreement.

(3)  However, a consent authority can require a planning agreement to be entered into as a condition of a development consent, but only if it requires a planning agreement that is in the terms of an offer made by the developer in connection with:

(a)  the development application, or

(b)  a change to an environmental planning instrument sought by the developer for the purposes of making the development application,

      or that is in the terms of a commitment made by the proponent in a statement of commitments made under Part 3A.

(4)  In this section, planning agreement includes any agreement (however described) containing provisions similar to those that are contained in an agreement referred to in section 93F.

93J   Jurisdiction of Court with respect to planning agreements

(1)  A person cannot appeal to the Court under this Act against the failure of a planning authority to enter into a planning agreement or against the terms of a planning agreement.

(2)  This section does not affect the jurisdiction of the Court under section 123.

93K   Determinations or directions by Minister

The Minister may, generally or in any particular case or class of cases, determine or direct any other planning authority as to:

(a)  the procedures to be followed in negotiating a planning agreement, or

(b)  the publication of those procedures, or

(c)  other standard requirements with respect to planning agreements.

93L   Regulations—planning agreements

The regulations may make provision for or with respect to planning agreements, including the following:

(a)  the form of planning agreements,

(b)  the subject-matter of planning agreements,

(c)  the making, amendment and revocation of planning agreements, including the giving of public notice and inspection by the public,

(d)  the public inspection of planning agreements after they have been made.

Subdivision 3 Local infrastructure contributions

94   Contribution towards provision or improvement of amenities or services

(1)  If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring:

(a)  the dedication of land free of cost, or

(b)  the payment of a monetary contribution,

      or both.

(2)  A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned.

(3)  If:

(a)  a consent authority has, at any time, whether before or after the date of commencement of this Part, provided public amenities or public services within the area in preparation for or to facilitate the carrying out of development in the area, and

(b)  development for which development consent is sought will, if carried out, benefit from the provision of those public amenities or public services,

      the consent authority may grant the development consent subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services (being the cost as indexed in accordance with the regulations).

(4)  A condition referred to in subsection (3) may be imposed only to require a reasonable contribution towards recoupment of the cost concerned.

(5)  The consent authority may accept:

(a)  the dedication of land in part or full satisfaction of a condition imposed in accordance with subsection (3), or

(b)  the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with subsection (1) or (3).

(6)  If a consent authority proposes to impose a condition in accordance with subsection (1) or (3) in respect of development, the consent authority must take into consideration any land, money or other material public benefit that the applicant has elsewhere dedicated or provided free of cost within the area (or any adjoining area) or previously paid to the consent authority, other than:

(a)  a benefit provided as a condition of the grant of development consent under this Act, or

(b)  a benefit excluded from consideration under section 93F (6).

(7)  If:

(a)  a condition imposed under subsection (1) or (3) in relation to development has been complied with, and

(b)  a public authority would, but for this subsection, be entitled under any other Act to require, in relation to or in connection with that development, a dedication of land or payment of money in respect of the provision of public amenities or public services or both,

      then, despite that other Act, compliance with the condition referred to in paragraph (a) is taken to have satisfied the requirement referred to in paragraph (b) to the extent of the value (determined, if the regulations so provide, in accordance with the regulations) of the land dedicated or the amount of money paid in compliance with the condition.

94A   Fixed development consent levies

(1)  A consent authority may impose, as a condition of development consent, a requirement that the applicant pay a levy of the percentage, authorised by a contributions plan, of the proposed cost of carrying out the development.

(2)  A consent authority cannot impose as a condition of the same development consent a condition under this section as well as a condition under section 94.

(2A)  A consent authority cannot impose a condition under this section in relation to development on land within a special contributions area without the approval of:

(a)  the Minister, or

(b)  a development corporation designated by the Minister to give approvals under this subsection.

(3)  Money required to be paid by a condition imposed under this section is to be applied towards the provision, extension or augmentation of public amenities or public services (or towards recouping the cost of their provision, extension or augmentation). The application of the money is subject to any relevant provisions of the contributions plan.

(4)  A condition imposed under this section is not invalid by reason only that there is no connection between the development the subject of the development consent and the object of expenditure of any money required to be paid by the condition.

(5)  The regulations may make provision for or with respect to levies under this section, including:

(a)  the means by which the proposed cost of carrying out development is to be estimated or determined, and

(b)  the maximum percentage of a levy.

94B   Section 94 or 94A conditions subject to contributions plan

(1)  A consent authority may impose a condition under section 94 or 94A only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division).

(2)  However, in the case of a consent authority other than a council:

(a)  the consent authority may impose a condition under section 94 or 94A even though it is not authorised (or of a kind allowed) by, or is not determined in accordance with, a contributions plan, but

(b)  the consent authority must, before imposing the condition, have regard to any contributions plan that applies to the whole or any part of the area in which development is to be carried out.

(3)  A condition under section 94 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction.

(4)  A condition under section 94A that is of a kind allowed by, and determined in accordance with, a contributions plan (or a direction of the Minister under this Division) may not be disallowed or amended by the Court on appeal.

94C   Cross-boundary issues

(1)  A condition may be imposed under section 94 or 94A for the benefit (or partly for the benefit) of an area that adjoins the local government area in which the development is to be carried out.

(2)  Any monetary contribution that is required to be paid under any such condition is to be apportioned among the relevant councils:

(a)  in accordance with any joint or other contributions plan approved by those councils, or

(b)  if provision is not made for the apportionment in any such plan—in accordance with the terms of the development consent for the development.

(3)  Any dispute between the councils concerned is to be referred to the Director-General and resolved in accordance with any direction given by the Director-General.

94CA   Public service or public amenity may be provided outside NSW

A condition may, with the written approval of the Minister, be imposed under section 94 or 94A for the provision of a public amenity or public service on land in another State or Territory if the area in which the development the subject of the condition is to be carried out adjoins the other State or Territory.

94D   Section 94 or 94A conditions imposed by Minister or Director-General in growth centres etc

(1)  This section applies where the Minister or the Director-General, as the consent authority, imposes conditions under section 94 or 94A in relation to:

(a)  land within a growth centre, or

(b)  other land within one or more council areas.

(2)  This Division applies to land within a growth centre as if references in this Division to the area were references to the growth centre.

(3)  Any monetary contribution paid in accordance with a condition under section 94 or 94A:

(a)  must be paid by the Minister or Director-General to the corporation for the growth centre or to the councils of the areas concerned, and

(b)  must (together with any additional amount earned from its investment) be applied within a reasonable time for the purpose for which it was levied.

(4)  This section applies to the Minister as consent authority whether or not the Minister is the consent authority pursuant to section 88A.

(5)  (Repealed)

94E   Directions by Minister

(1)  The Minister may, generally or in any particular case or class of cases, direct a consent authority as to:

(a)  the public amenities and public services in relation to which a condition under section 94 may or may not be imposed, and

(b)  in the case of a condition under section 94 requiring the payment of a monetary contribution:

(i)  the means by which or the factors in relation to which the amount of the contribution may or may not be calculated or determined, and

(ii)  the maximum amount of any such contribution, and

(c)  the things that may or may not be accepted as a material public benefit for the purposes of a condition under section 94, and

(d)  the type or area of development in respect of which a condition under section 94A may be imposed and the maximum percentage of the levy, and

(e)  the use of monetary contributions or levies for purposes other than those for which they were paid, and

(f)  the preparation of joint contributions plans by two or more councils.

(2)  A consent authority to which a direction is given under this section must comply with the direction in accordance with its terms.

(3)  A consent authority must not, in granting development consent in relation to which a direction under this section applies, impose a condition that is not in accordance with the terms of the direction, despite the other provisions of this Division and despite the provisions of any contributions plan.

94EA   Contributions plans—making

(1)  A council, or two or more councils, may, subject to and in accordance with the regulations, prepare and approve a contributions plan for the purpose of imposing conditions under this Division (other than Subdivision 4).

(2)  If a contributions plan authorises the imposition of conditions under section 94A, the plan is to specify the type or area of development in respect of which a condition under section 94A may be imposed and is to preclude the imposition of a condition under section 94 in respect of that type or area of development.

(2A)  A contributions plan does not authorise the imposition of a condition under section 94 on a grant of development consent if the public amenities or public services to which that condition relates are, in whole or in part, infrastructure provided, or to be provided, in relation to the development out of contributions collected under Subdivision 4.

(3)  The regulations may make provision for or with respect to the preparation and approval of contributions plans, including the format, structure and subject-matter of plans.

(4)  A council is, as soon as practicable after approving a contributions plan, to provide the Minister with a copy of the plan.

94EAA   Contributions plans—making, amendment or repeal by Minister

(1)  The Minister may direct a council, in writing, to approve, amend or repeal a contributions plan in the time and manner specified in the direction.

(2)  The Minister may make, amend or repeal a contributions plan if:

(a)  a council fails to approve, amend or repeal the plan in accordance with a direction of the Minister under this section, or

(b)  a council consents in writing to the Minister making, amending or repealing the plan.

The plan, the amended plan or the repeal of the plan has effect as if it had been approved, amended or repealed by the council.

(3)  The Minister in making, amending or repealing a contributions plan under this section is not subject to the regulations.

(4)  A person cannot appeal to the Court under this Act in respect of:

(a)  the making, amending or repealing of a contributions plan by or at the direction of the Minister under this section, or

(b)  the reasonableness in the particular circumstances of a condition under section 94 that is determined in accordance with any such contributions plan,

      despite section 94B (3) or any other provision of this Act.

94EB   Contributions plans—judicial notice, validity etc

(1)  Judicial notice is to be taken of a contributions plan and of the date on which the plan came into effect.

(2)  It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of a contributions plan have been complied with and performed.

(3)  The validity of any procedure required to be followed in making or approving a contributions plan is not to be questioned in any legal proceedings except those commenced in the Court by any person within 3 months after the date on which the plan came into effect.

(4)  The amendment or repeal, whether in whole or in part, of a contributions plan does not affect the previous operation of the plan or anything duly done under the plan.

94EC   Contributions plans—complying development

(1)  In relation to an application made to an accredited certifier for a complying development certificate, a contributions plan:

(a)  is to specify whether or not the accredited certifier must, if a complying development certificate is issued, impose a condition under section 94 or 94A, and

(b)  can only authorise the imposition by an accredited certifier of a condition under section 94 that requires the payment of a monetary contribution, and

(c)  must specify the amount of the monetary contribution or levy that an accredited certifier must so impose or the precise method by which the amount is to be determined.

(1A)  The imposition of a condition by an accredited certifier as authorised by a contributions plan is subject to compliance with any directions given under section 94E (1) (a), (b) or (d) with which a council would be required to comply if issuing the complying development certificate concerned.

(2)  This section does not limit anything for which a contributions plan may make provision in relation to a consent authority.

Subdivision 4 Special infrastructure contributions

94ED   Provision of infrastructure

(1)  In this Subdivision, a reference to the provision of infrastructure includes a reference to:

(a)  the provision, extension and augmentation of (or the recoupment of the cost of providing, extending or augmenting) public amenities or public services, affordable housing and transport or other infrastructure relating to land, and

(b)  the funding of recurrent expenditure relating to the provision, extension and augmentation of public amenities or public services, affordable housing and transport or other infrastructure, and

(c)  the conservation or enhancement of the natural environment, and

(d)  the Minister, corporation, Department or Director-General doing any one or more of the following:

(i)  carrying out of any research or investigation,

(ii)  preparing any report, study or instrument,

(iii)  doing any other matter or thing in connection with the exercise of any statutory function under this Act,

      but does not include a reference to water supply or sewerage services.

(2)  Subject to section 94EE (2) (c), infrastructure may be regarded as being provided in relation to development whether or not the infrastructure is provided on land within a special contributions area or within New South Wales.

94EE   Minister to determine development contributions

(1)  The Minister is, subject to the regulations (if any), to determine the level and nature of development contributions to be imposed as conditions under this Subdivision for the provision of infrastructure in relation to a development or a class of development.

(2)  In determining the level and nature of development contributions:

(a)  the Minister is, as far as reasonably practicable, to make the contribution reasonable having regard to the cost of the provision of infrastructure in relation to the development or class of development, and

(b)  if the cost of that infrastructure exceeds $30 million—the Minister is to consult the Treasurer, and

(c)  the Minister is not to take into account infrastructure provided on land other than that within the relevant special contributions area, unless, in the opinion of the Minister, the provision of the infrastructure on such land arises as a result of the development or as a result of a class of development of which the development forms a part.

(3)  Despite subsection (2), the Minister may, if he or she sees fit, determine the level and nature of development contributions in the form of a levy of a percentage of the proposed cost of carrying out development or any class of development.

(3A)  The determination of the Minister is to identify what part (if any) of a development contribution, that is to be imposed as a condition under this Subdivision, is for the provision of infrastructure by a council or for any one or more of the matters set out in section 94ED (1) (d).

(3B)  Any part of a development contribution identified in accordance with subsection (3A):

(a)  is, for the purposes of Subdivision 5, taken not to be received by the consent authority under this Subdivision, and

(b)  is not to be taken into account in calculating the cost of infrastructure for the purposes of subsection (2) (b), and

(c)  is, if the part is identified as being for the provision of infrastructure by a council, to be provided to the council and is to be held and applied by the council in accordance with section 93E, and

(d)  is, if the part is identified as being for any one or more of the matters set out in section 94ED (1) (d), to be provided to the Department and is to be held and applied by the Department in accordance with section 93E.

(4)  In determining the level and nature of development contributions to be imposed as conditions under this Subdivision for development within a particular special contributions area (other than a growth centre), the Minister is to do one or more of the following:

(a)  consult with owners of land in the special contributions area and other relevant stakeholders,

(b)  publicly exhibit a proposal in relation to the level of development contributions and seek submissions within a reasonable time in relation to that proposal,

(c)  establish a panel that, in the Minister’s opinion, represents the interests of the various relevant stakeholders and consult with that panel.

(5)  The determination of the Minister:

(a)  is to contain reasons for the level and nature of the development contributions, and

(b)  is to be made publicly available by the Minister.

(6)  A person cannot appeal to the Court under this Act in respect of a determination of the Minister under this section.

(7)  Subsection (3A) does not limit any payments being made out of the Fund to a council or the Department under section 94EL (1) (a).

94EF   Special infrastructure contributions

(1)  The Minister may direct a consent authority, in relation to development or class of development on land within a special contributions area, to impose a condition (determined in accordance with section 94EE) on a grant of development consent in relation to that land.

(2)  If the Minister is the consent authority, the Minister may impose a condition referred to in subsection (1) without giving a direction under that subsection.

(3)  A consent authority to which a direction is given under this section must comply with the direction in accordance with its terms. If the consent authority fails to do so, the Minister may impose the condition, and it has effect as if it had been imposed by the consent authority.

(4)  A condition imposed under this section is in addition to any condition that the consent authority may impose under section 94 or 94A in relation to the development.

(5)  The consent authority may, subject to the consent of the Minister, accept:

(a)  the dedication of land in part or full satisfaction of a condition imposed in accordance with this section, or

(b)  the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with this section.

(6)  A person cannot appeal to the Court under this Act in respect of a direction of the Minister, or a condition imposed by a consent authority or the Minister, under this section.

(7)  A condition imposed by a consent authority or the Minister under this section cannot be modified without the approval of the Minister.

94EG   Minister may make, amend or repeal special contributions areas

(1)  The Minister may, by order published on the NSW legislation website, amend Schedule 5A for the purpose of:

(a)  creating a special contributions area, or

(b)  repealing a special contributions area, or

(c)  changing a special contributions area.

(2)  Any such order may contain savings and transitional provisions.

(3)  Any such order takes effect on the day that it is published on the NSW legislation website or such later date as may be specified in the order.

(4)  Before creating a special contributions area (other than a growth centre), the Minister is to consult with the peak industry organisations that the Minister considers to be relevant.

94EH   Land contributed under this Subdivision

The Minister may direct a consent authority to sell all or part of any land it receives under this Subdivision or to transfer any such land to a public authority that is to provide, or has provided, infrastructure in relation to:

(a)  the development to which the land relates, or

(b)  the class of development to which that development belongs.

Subdivision 5 Establishment of Special Contributions Areas Infrastructure Fund

94EI   Definition

In this Subdivision:

the Fund means the Special Contributions Areas Infrastructure Fund established under section 94EJ.

94EJ   Establishment of Fund

(1)  There is to be established in the Special Deposits Account a fund called the Special Contributions Areas Infrastructure Fund.

(2)  The Fund is to be administered by the Director-General. The Director-General is to consult the Secretary of the Treasury in relation to the administration of the Fund.

94EK   Payments into Fund

The following is to be paid into the Fund:

(a)  monetary contributions received by a consent authority under Subdivision 4,

(b)  the proceeds of the sale of any land received by a consent authority under Subdivision 4,

(c)  any money appropriated by Parliament for the purposes of the Fund,

(d)  the proceeds of the investment of money in the Fund,

(e)  any other money required to be paid into the Fund by or under this or any other Act or the regulations under this Act.

94EL   Payments out of Fund

(1)  The following is to be paid from the Fund:

(a)  payments to public authorities for the provision of infrastructure in relation to development,

(b)  any money required to meet administrative expenses in relation to the Fund,

(c)  all other money directed or authorised to be paid from the Fund by this Act or by the regulations under this Act.

(2)  The assets of the Fund can only be applied for the purposes referred to in subsection (1).

94EM   Investment of money in Fund

The money in the Fund may be invested:

(a)  in such manner as may be authorised by the Public Authorities (Financial Arrangements) Act 1987, or

(b)  if that Act does not confer power on the Department to invest the money, in any other manner approved by the Treasurer.

Division 6A Conditions requiring land or contributions for affordable housing

94F   Conditions requiring land or contributions for affordable housing

(1)  This section applies with respect to a development application for consent to carry out development within an area if a State environmental planning policy identifies that there is a need for affordable housing within the area and:

(a)  the consent authority is satisfied that the proposed development will or is likely to reduce the availability of affordable housing within the area, or

(b)  the consent authority is satisfied that the proposed development will create a need for affordable housing within the area, or

(c)  the proposed development is allowed only because of the initial zoning of a site, or the rezoning of a site, or

(d)  the regulations provide for this section to apply to the application.

(2)  Subject to subsection (3), the consent authority may grant consent to a development application to which this section applies subject to a condition requiring:

(a)  the dedication of part of the land, or other land of the applicant, free of cost to be used for the purpose of providing affordable housing, or

(b)  the payment of a monetary contribution to be used for the purpose of providing affordable housing,

      or both.

(3)  A condition may be imposed under this section only if:

(a)  the condition complies with all relevant requirements made by a State environmental planning policy with respect to the imposition of conditions under this section, and

(b)  the condition is authorised to be imposed by a local environmental plan, and is in accordance with a scheme for dedications or contributions set out in or adopted by such a plan, and

(c)  the condition requires a reasonable dedication or contribution, having regard to the following:

(i)  the extent of the need in the area for affordable housing,

(ii)  the scale of the proposed development,

(iii)  any other dedication or contribution required to be made by the applicant under this section or section 94.

(4)  A consent authority that proposes to impose a condition in accordance with this section must take into consideration any land or other sum of money that the applicant has previously dedicated free of cost, or previously paid, for the purpose of affordable housing within the area otherwise than as a condition of a consent.

(5)  Nothing in this section prevents the imposition on a development consent of other conditions relating to the provision, maintenance or retention of affordable housing. Such conditions may require, but are not restricted to, the imposition of covenants (including positive covenants) or the entering into of contractual or other arrangements.

(6)  A condition is not to be imposed under this section in relation to development that is within a special contributions area (within the meaning of Division 6).

94G   Provision of affordable housing

(1)  Land dedicated in accordance with a condition imposed under this Division must:

(a)  be made available by the consent authority for the purposes of affordable housing within a reasonable time, or

(b)  be transferred by the consent authority in accordance with any applicable direction under subsection (3).

(2)  A consent authority must:

(a)  hold any monetary contribution paid in accordance with a condition imposed under this Division (and any additional amount earned from its investment) for the purpose for which the payment was required and apply the money for the purposes of affordable housing in the area or an adjoining area within a reasonable time, or

(b)  pay the monetary contribution in accordance with any applicable direction under subsection (3).

(3)  The Minister may give a direction, that applies generally or in any particular case or class of cases, to a consent authority:

(a)  requiring it to transfer land to a person nominated by the Minister, if it imposes a condition under this Division requiring dedication of the land, or

(b)  requiring it to pay a monetary contribution to a person nominated by the Minister, if it imposes a condition under this Division requiring the payment of the monetary contribution.

(4)  A person nominated under this section by the Minister must:

(a)  make available any land transferred to the person under this Division for the purposes of affordable housing within a reasonable time, and

(b)  apply any monetary contribution paid to the person under this Division (and any additional amount earned from its investment) for the purposes of affordable housing in the area concerned or in an adjoining area within a reasonable time.

Division 7 Post-consent provisions

95   Lapsing of consent

(1)  A development consent lapses 5 years after the date from which it operates.

(2)  However, a consent authority may reduce that period of 5 years in granting development consent. This subsection does not apply to development consent granted to a staged development application under Division 2A for development that requires a subsequent development application and consent.

(3)  Such a reduction may not be made so as to cause:

(a)  a development consent to erect or demolish a building or to subdivide land to lapse within 2 years after the date from which the consent operates, or

(b)  a development consent of a kind prescribed by the regulations to lapse within the period prescribed by the regulations in relation to the consent.

(4)  Development consent for:

(a)  the erection of a building, or

(b)  the subdivision of land, or

(c)  the carrying out of a work,

      does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.

(5)  Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse.

(6)  Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 80 (3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority, within the period so specified.

95A   Extension of lapsing period for 1 year

(1)  If, in granting a development consent, the consent authority reduces the period after which the consent lapses to less than 5 years, the applicant or any other person entitled to act on the consent may apply to the consent authority, before the period expires, for an extension of 1 year.

(2)  The consent authority may grant the extension if satisfied that the applicant has shown good cause.

(3)  A person making an application under subsection (1) who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after it is made, may appeal to the Court, and the Court may determine the appeal.

(4)  An extension of 1 year granted under this section commences to run from the later of the following:

(a)  the date on which the consent would have lapsed but for the extension,

(b)  the date on which the consent authority granted the extension or, if the Court has allowed the extension in determining an appeal, the date on which the Court determined the appeal.

(5)  This section does not apply to complying development.

95B   (Repealed)

96   Modification of consents—generally

(1) Modifications involving minor error, misdescription or miscalculation
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5), (6) and (7) do not apply to such a modification.

(1A) Modifications involving minimal environmental impact
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a)  it is satisfied that the proposed modification is of minimal environmental impact, and

(b)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c)  it has notified the application in accordance with:

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1), (2) and (5) do not apply to such a modification.

(2) Other modifications
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c)  it has notified the application in accordance with:

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3)  In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.

(4)  The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

(5) Threatened species
Development consent of the kind referred to in section 79B (3), or in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995, is not to be modified unless:

(a)  in the case of development referred to in section 79B (3)—the requirements of section 79B (3)–(7) have been complied with in relation to the proposed modification as if the application for the proposed modification were an application for development consent, or

(b)  in the case of development in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995—the applicant has made an application for modification of the biobanking statement in relation to the proposal and a new biobanking statement has been issued or the consent authority is satisfied that the modification will have no impact on biodiversity values (within the meaning of that Act).

(6) Appeals
An applicant who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after the application is made may appeal to the Court and the Court may determine the appeal.

(6A)  (Repealed)

(7)  Subsection (6) does not enable an appeal to be made against the determination of, or the failure to determine, an application to modify a development consent, being a development consent granted by the Court.

(8) Modifications by the Court
The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A) (c) or subsection (2) (b) and (c) are to be exercised by the relevant consent authority and not the Court.

96AA   Modification by consent authorities of consents granted by the Court

(1)  A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if:

(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modif