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3   (Repealed)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 a person who is the holder of a certificate of accreditation 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.

building includes part of a building and any structure or part of a structure, but does not include:

(a)  a manufactured home, a moveable dwelling or associated structure or part of a manufactured home, a moveable dwelling or associated structure, or

(b)  a temporary structure within the meaning of the Local Government Act 1993.

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.

Commission of Inquiry means a Commission of Inquiry constituted under section 119.

Commissioner of Inquiry means a person appointed and holding office under section 18 and includes the Chairperson of Commissioners of Inquiry and the Deputy Chairperson of Commissioners of Inquiry.

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 or public authority (other than a council) as having the function to determine the application—that Minister or public 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.

deemed environmental planning instrument means a former planning instrument referred to in clause 2 of Schedule 3 to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 and includes an instrument referred to in clause 3 (2) of that Schedule.

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 means a development control plan prepared (or taken to have been prepared) under Division 6 of Part 3.

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 a State environmental planning policy, a regional environmental plan, or a local environmental plan, and except where otherwise expressly provided by this Act, includes a deemed environmental planning instrument.

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.

integrated development has the meaning given by section 91.

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 means a plan made by the Minister under section 70 that is in force.

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.

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).

regional environmental plan means a plan made by the Minister under section 51 that is in force.

regulation means a regulation made under this Act.

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 means a policy made by the Governor under section 39 that is in force.

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).

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 the Director-General or a council preparing an environmental planning instrument or an environmental study includes a reference to the Director-General or a council, as the case may be, causing that environmental planning instrument or environmental study to be prepared on the Director-General’s or the council’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 the 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 local environmental plans,

(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 Commissioners of Inquiry

18   Commissioners of Inquiry

(1)  The Governor may appoint a person to be the Chairperson of Commissioners of Inquiry, a person to be the Deputy Chairperson of Commissioners of Inquiry and persons to be Commissioners of Inquiry.

(2)  (Repealed)

(3)  The Governor may appoint a person under subsection (1) to be a Commissioner of Inquiry for the purposes only of a particular inquiry directed to be held by the Minister.

(4)  Where a person is appointed as referred to in subsection (3):

(a)  the person shall be paid such remuneration and allowances as may be determined in respect of the person by the Minister, and

(b)  (Repealed)

(5)  Without affecting the functions of Commissioners of Inquiry under section 119, the Minister may make use of the services of any Commissioner in the administration of this Act or any other Act administered by the Minister.

Division 5 Committees

19   (Repealed)

20   Local Government Liaison Committee

(1)  A Local Government Liaison Committee is hereby established.

(2)  The functions of the Committee shall be to advise the Minister on the following matters:

(a)  the means to ensure effective co-ordination of the activities and programmes of public authorities and councils in the achievement of the objects of this Act,

(b)  policies and procedures relating to the functions of councils under this Act,

(c)  the needs of councils in connection with their responsibilities under this Act for information, advice and procedures relating to environmental planning and assessment,

(d)  local environmental planning policies and procedures, and

(e)  such other matters as may be referred to the Committee by the Minister or the Director-General.

(3)  Schedules 3 and 5 apply in relation to the Committee.

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

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)  Schedule 5 applies in relation to a committee established under subsection (1).

(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)  any committee or subcommittee established under this Act,

(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, or

(f)  a Commissioner of Inquiry,

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

(1A)  (Repealed)

(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 or Director-General, 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 or Director-General, as the case may be, and shall be deemed to have been done or suffered by the Minister, corporation or Director-General, as the case may be.

(6)  An instrument purporting to be signed by a delegate of the Minister, corporation or Director-General, in his or her 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 or Director-General, 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 or Director-General, 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 the carrying out of a project or the concept plan for a 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 3 Environmental planning instruments

Division 1 General

24   Making of environmental planning instruments and the application of objects thereto

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.

25   Statement of aims etc in environmental planning instruments

(1)  An environmental planning instrument shall state the aims, objectives, policies and strategies whereby that environmental planning instrument is designed to achieve any of the objects of this Act.

(2)  Except as provided by subsection (3), a statement referred to in subsection (1) does not affect the construction or effect of any other provision of the environmental planning instrument in which the statement is made.

(3)  Where a provision of an environmental planning instrument is genuinely capable of different interpretations, that interpretation which best meets the aims, objectives, policies and strategies stated in that instrument shall be preferred.

(4)  A failure to comply in any respect with subsection (1) does not affect the validity, construction or effect of an environmental planning instrument.

(5)  This section does not apply in the case of a deemed environmental planning instrument.

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)  If land declared to be critical habitat is land to which an environmental planning instrument described in subsection (3) applies, the instrument must be amended as soon as practicable after the declaration to identify the land that is critical habitat.

(3)  The environmental planning instruments described in this subsection are regional environmental plans and local environmental plans that:

(a)  are principal instruments, as distinct from amending instruments (that is, principal instruments contain provisions apart from citation, commencement, a statement of their relationship with other instruments, a description, by reference or otherwise, of the land to which they apply and savings and transitional provisions), and

(b)  make provision for the development of land that is identified by a map or a description, and

(c)  are prepared or made before or after the commencement of Part 3 of the Threatened Species Conservation Act 1995.

(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.

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 local and other environmental planning instruments

(1)  The Governor may, by order published in the Gazette, 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. Any draft of the instrument that is exhibited under this Act is to set out in full the provisions that are adopted.

(4)  If the mandatory provisions of a standard instrument so adopted are amended by a further order under subsection (1) 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.

(9)  Subject to this Act and the regulations, the form and subject-matter of an environmental planning instrument or draft 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 in the Gazette, 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 draft 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 and regional environmental plans) 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, by order published in the Gazette, 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)  an order making a plan under that subsection is not required to comply with other requirements for the making of an environmental planning instrument, and

(b)  public notice is to be given of the proposed plan for such period as the Minister considers appropriate and submissions invited on the proposed plan during that period, and

(c)  the council is to provide the Minister, when requested, with copies of any draft plans, 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 in the Gazette, and

(b)  take effect 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 in the Gazette after the day on which one or more of its provisions is expressed to take effect. In that case, the provisions concerned take effect on and from the day the instrument is published in the Gazette, 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 in the Gazette 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   Consultation with Director-General of National Parks and Wildlife about preparation of studies or instruments

(1)  The Director-General of the Department of Urban Affairs and Planning must consult with the Director-General of National Parks and Wildlife before preparing:

(a)  a draft State environmental planning policy, or

(b)  an environmental study or a draft regional environmental plan,

      if, in the opinion of the Director-General of the Department of Urban Affairs and Planning, critical habitat or threatened species, populations or ecological communities, or their habitats, will or may be affected by the draft policy, environmental study or draft plan.

(2)  A council must consult with the Director-General of National Parks and Wildlife before preparing:

(a)  an environmental study, or

(b)  a draft local environmental plan,

      if, in the opinion of the council, critical habitat or threatened species, populations or ecological communities, or their habitats, will or may be affected by the environmental study or draft plan.

(3)  For the purpose of the consultation, the Director-General of the Department of Urban Affairs and Planning or the council must provide the following information to the Director-General of National Parks and Wildlife:

(a)  the reasons for deciding to prepare the draft environmental planning instrument or the environmental study,

(b)  the proposed aims, objectives, policies and strategies whereby the draft instrument is designed to achieve any of the objects of this Act,

(c)  a description of the land to which the draft instrument or the study is intended to apply,

(d)  the types of matters to be dealt with in the draft instrument or the study.

(4)  For the purposes of the consultation, the Director-General of the Department of Urban Affairs and Planning or the council may provide any other information that, in the Director-General’s or council’s opinion, would assist in understanding the draft environmental planning instrument or the environmental study.

(5)  The Director-General of National Parks and Wildlife may comment to the Director-General of the Department of Urban Affairs and Planning or the council on the preparation of the draft environmental planning instrument or the environmental study within 40 days after the information required to be provided under subsection (3) is provided.

(6)  The consultation required by this section is completed when the Director-General of the Department of Urban Affairs and Planning or the council has considered any comments so made.

Note. Section 5C provides that a reference to the Director-General of National Parks and Wildlife, in connection with the Threatened Species Conservation Act 1995, is taken, in the case of threatened species, populations or ecological communities of fish or marine vegetation, to be a reference to the Director of NSW Fisheries.

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 in the Gazette.

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 regional environmental plan or local environmental plan made before or after the policy, and

(b)  there is a general presumption that a regional environmental plan prevails over a local environmental plan made before or after the regional environmental plan, and

(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 State environmental planning policies

37   Decision or direction to prepare draft State environmental planning policy

(1)  The Director-General may, after consultation with such public authorities as the Director-General determines, prepare a draft State environmental planning policy with respect to such matters as are, in the opinion of the Director-General, of significance for environmental planning for the State, and may submit it to the Minister.

(2)  The Minister may, after consultation with such Ministers as the Minister determines, cause to be prepared by the Director-General for submission to the Minister a draft State environmental planning policy with respect to any matter specified by the Minister, being a matter which is, in the opinion of the Minister, of significance for environmental planning for the State.

38   (Repealed)

39   Making of State environmental planning policies by the Governor

(1)  The Minister may, on the submission to the Minister by the Director-General of a draft State environmental planning policy, recommend to the Governor the making of a State environmental planning policy:

(a)  in accordance with that draft State environmental planning policy submitted to the Minister, or

(b)  in accordance with that draft State environmental planning policy with such alterations as the Minister thinks fit,

      or the Minister may decide not to make that recommendation.

(2)  The Minister shall take such steps, if any, as the Minister considers appropriate or necessary to publicise a draft State environmental planning policy and to seek and consider submissions from the public before the Minister makes such a recommendation.

(3)  The Minister may not make such a recommendation except with respect to such matters as are, in his or her opinion, of significance for environmental planning for the State.

(4)  The Governor may make a State environmental planning policy in accordance with a recommendation made under this section.

(5)  A State environmental planning policy shall apply to the State or such part of the State as is described in the policy.

Division 3 Regional environmental plans

40   Decision or direction to prepare draft regional environmental plan

(1)  The Director-General may prepare a draft regional environmental plan in respect of a region or part of a region and with respect to such matters as are, in the opinion of the Director-General, of significance for environmental planning for the region to which, or to part of which, that plan is intended to apply.

(2)  The Minister may cause to be prepared by the Director-General for submission to the Minister a draft regional environmental plan with respect to any matter specified by the Minister, being a matter which is, in the opinion of the Minister, of significance for environmental planning for the region to which, or to part of which, that plan is intended to apply.

41   Preparation of environmental study

(1)  The Director-General shall, before commencing to prepare a draft regional environmental plan or at any time during the course of its preparation, prepare an environmental study of the land to which the draft regional environmental plan is intended to apply.

(2)  The environmental study referred to in subsection (1) shall have regard to such matters, relating to the environment of the region to which, or to part of which the draft regional environmental plan is intended to apply, as the Director-General determines.

42, 43   (Repealed)

44   Preparation of draft regional environmental plan

In the preparation of a draft regional environmental plan, the Director-General shall, within such time as the Minister may determine:

(a)  cause any State environmental planning policy to be considered so far as it may affect or be affected by the subject-matter of the draft regional environmental plan, and

(b)  prepare the plan having regard to the environmental study prepared by the Director-General under section 41.

(c)–(e)  (Repealed)

45   Notification

(1)  In the preparation of an environmental study or a draft regional environmental plan, the Director-General, to the extent required by this section, is to notify the information specified in subsection (2) to the following:

(a)  each council whose area or part of whose area is situated in the region or part of the region to which that study or draft plan applies,

(b)  (Repealed)

(c)  such other public authorities, other bodies (including authorities of the Commonwealth or other States) and other persons as the Director-General determines.

(2)  The information to be notified is the following:

(a)  the reasons for deciding to prepare the environmental study or the draft regional environmental plan,

(b)  the general aims and objectives of the study or draft plan,

(c)  a general description of the land or area to which the study or draft plan is intended to apply,

(d)  such other matters (if any) as the Director-General thinks fit.

(3)  Information about an environmental study and information about a draft regional environmental plan may be notified under this section at the same time or at different times.

(4)  A person to whom information is notified under this section may comment to the Director-General on the preparation of the environmental study or draft regional environmental plan within 28 days after the Director-General notifies the information.

46   Information from public authorities

To facilitate the preparation of an environmental study or a draft regional environmental plan, a public authority:

(a)  shall, if requested in writing to do so by the Director-General, furnish such information and provide such assistance as may reasonably be required by the Director-General in the preparation of the study or plan, and

(b)  shall notify the Director-General of any information or any actual or proposed activity or work that, in its opinion, is relevant to the study or plan,

and a public authority is hereby empowered to the extent necessary to comply with the provisions of this section.

47   Public exhibition of draft regional environmental plan

When a draft regional environmental plan has been prepared, the Director-General shall:

(a)  give public notice, in a form and manner determined by the Director-General, of the places at which, the dates on which, and the times during which, the environmental study prepared by the Director-General under section 41 of the land to which the draft regional environmental plan applies and the draft regional environmental plan may be inspected by the public,

(b)  publicly exhibit that environmental study and draft regional environmental plan at the places, on the dates and during the times set out in the notice,

(c)  publicly exhibit such other matters as the Director-General considers appropriate or necessary to better enable the draft plan and its implications to be understood, and

(d)  specify, in the notice, the period during which submissions may be made to the Director-General in accordance with section 48.

48   Submissions

Any person may, during the period referred to in section 47 (d), make submissions in writing to the Director-General with respect to the draft regional environmental plan publicly exhibited under section 47 (b).

49   Consideration of submissions and amendment of draft plan

(1)  The Director-General shall cause any submissions made under section 48 to be considered and:

(a)  may, if the Director-General thinks fit, direct that an inquiry be held, in accordance with section 119, by a Commission of Inquiry appointed under section 119 (2), with respect to any matter relating to the draft regional environmental plan whether or not arising from any submission,

(b)  may amend the draft regional environmental plan by making changes whether or not of substance and whether or not as a consequence of the consideration of any such submissions or of the findings and recommendations of any such Commission of Inquiry,

(c)  may (but need not) publicly exhibit that amended draft regional environmental plan together with a written explanation of the reasons for the amendments, at such places, on such dates and during such times as the Director-General determines, and

(d)  where an amended draft regional environmental plan is exhibited under paragraph (c), shall cause public notice to be given in a form and manner determined by the Director-General, specifying the period during which submissions may be made to the Director-General in accordance with section 48 as applied by subsection (2).

(2)  Where the Director-General causes an amended draft regional environmental plan to be publicly exhibited in accordance with subsection (1) (c), section 48 and subsection (1) apply to and in respect of that amended draft regional environmental plan in the same way as they apply to and in respect of a draft regional environmental plan.

50   Submission of draft regional environmental plan to the Minister

(1)  Subject to subsection (2), the Director-General shall submit to the Minister the draft regional environmental plan, with any amendments made in accordance with section 49.

(2)  In submitting the draft regional environmental plan, the Director-General may exclude certain provisions of the draft plan or exclude part of the region from the draft plan, or both (in this section referred to as the deferred matter) which, in the Director-General’s opinion, require or requires further consideration but which should not prejudice the consideration by the Minister of the draft plan as submitted.

(3)  A draft regional environmental plan submitted under subsection (1) shall be accompanied by a report by the Director-General on the draft plan, on any submissions made under section 48 and on any inquiry referred to in section 49 (1) (a) in relation to the draft plan.

(4)  The Director-General may subsequently take action under section 49 and this section in respect of the deferred matter which for the purposes of those sections shall be deemed to be a draft regional environmental plan.

51   Making of regional environmental plans by the Minister

(1)  The Minister may, on the submission to the Minister by the Director-General of a draft regional environmental plan:

(a)  make a regional environmental plan:

(i)  in accordance with the draft regional environmental plan submitted to the Minister, or

(ii)  in accordance with the draft regional environmental plan with such alterations as the Minister thinks fit,

(b)  direct that action be taken in accordance with subsection (4), or

(c)  decide not to proceed with the draft regional environmental plan.

(1A)  Without limiting subsection (1) (a) (ii), the alterations that may be made by the Minister to the draft regional environmental plan may comprise changes of substance and may arise from submissions or from a finding or recommendation of a Commission of Inquiry or otherwise from the Minister’s consideration of the matters in the draft plan.

(2)  The Minister may not make a regional environmental plan except with respect to such matters as are, in his or her opinion, of significance for environmental planning for the region or part of the region to which that regional environmental plan applies.

(3)  A regional environmental plan shall apply to such region or part of the region as is described in the plan.

(4)  The Minister may direct the Director-General to publicly exhibit a draft regional environmental plan with such alterations as the Minister specifies, and the provisions of this section and sections 47, 48, 49 and 50 shall, with any necessary adaptations, apply to that plan.

51A, 52   (Repealed)

Division 4 Local environmental plans

53   Definition

Where 2 or more councils decide to join in the preparation of a draft local environmental plan under section 54 (2), a reference in this Division:

(a)  except in section 54, to a council includes a reference to those councils, and

(b)  to an area includes a reference to the areas of those councils.

54   Decision to prepare draft local environmental plan

(1)  A council may decide to prepare a draft local environmental plan in respect of the whole or any part of the land within its area.

(2)  Two or more councils may decide to join in the preparation of a draft local environmental plan in respect of the whole or any part of the land within their areas.

(3)  Where 2 or more councils decide to join in the preparation of a draft local environmental plan under subsection (2), they shall enter into an agreement for the purpose of preparing that draft local environmental plan.

(4)  A council or councils, as the case may be, shall inform the Director-General of the decision to prepare a draft local environmental plan and of the land to which it is intended to apply.

(5)  Following the decision to prepare a draft local environmental plan, the council or councils may, subject to and in accordance with this Division, prepare the plan.

55   Directions from Minister for the preparation of local environmental plan

(1)  The Minister may direct a council, or 2 or more councils jointly, to perform any function conferred or imposed on it or them under section 54 or any other provision of this Division within such time or period as is specified in the direction.

(2)  Where a direction is given under subsection (1), no function performed after the expiration of any time or period specified in the direction shall thereby be rendered void or otherwise ineffective.

(3)  Nothing in this section affects the operation of section 117.

(4)  Following the direction to prepare a draft local environmental plan, the council or councils shall, subject to and in accordance with this Division, prepare the plan.

56   (Repealed)

57   Preparation of environmental study

(1)  Where a council decides to prepare a draft local environmental plan or is directed to do so by the Minister under section 55, it shall prepare an environmental study of the land to which the draft local environmental plan is intended to apply.

(2)  A council shall prepare an environmental study in accordance with such specifications, if any, relating to the form, content and preparation of the study as have been notified to the council by the Director-General and are then applicable.

(3)  (Repealed)

(4)  The environmental study referred to in subsection (1) shall be prepared with regard to such matters, relating to the environment of the area to which the draft local environmental plan is intended to apply, as the council, subject to the specifications, determines.

(5)  Where, in relation to a request or submission made by or on behalf of a person to a council, an environmental study referred to in subsection (1) of particular land is prepared by the council for the purposes of a draft local environmental plan to enable the carrying out of development on the land, the council may, subject to and in accordance with the regulations, recover the costs and expenses, determined in accordance with the regulations, incurred in the preparation of the environmental study, from the person.

58–60   (Repealed)

61   Council’s responsibilities in preparing draft local environmental plan

The council shall prepare a draft local environmental plan having regard to the environmental study prepared by the council under section 57.

62   Consultation

In the preparation of an environmental study or a draft local environmental plan, the council shall consult with:

(a)  such public authorities or bodies (including authorities of the Commonwealth or other States) as, in its opinion, will or may be affected by that draft local environmental plan,

(b)  where the draft local environmental plan applies to land adjoining a boundary between the council’s area and another area—the council of that other area, and

(c)  such other persons as the council determines.

63   Information from public authorities

To facilitate the preparation of an environmental study or a draft local environmental plan, a public authority:

(a)  shall, if requested in writing to do so by the council, furnish such information and provide such assistance as it deems proper to assist the council in the preparation of the study or plan, and

(b)  shall notify the council of any information or any actual or proposed activity or work that, in its opinion, is relevant to the study or plan,

and a public authority is hereby empowered to the extent necessary to comply with the provisions of this section.

64   Submission of copy of draft local environmental plan to Department

When a draft local environmental plan has been prepared, the council shall submit a copy of the draft plan to the Director-General, together with a statement specifying the names of the public authorities, bodies and other persons the council has consulted with pursuant to section 62.

65   Certificate of Director-General

(1)  Where the Director-General receives a copy of a draft local environmental plan from a council under section 64, the Director-General may cause to be issued to the council a certificate certifying that the draft plan may be publicly exhibited in accordance with section 66.

(1A)  A certificate is not to be issued under this section unless the Director-General is satisfied that the draft local environmental plan has been prepared in accordance with any applicable standard instrument under section 33A. This subsection does not limit the grounds on which a certificate may be refused or the draft plan may be required to be amended under this section.

Note. Section 117 also empowers the Minister to give directions as to the principles to be observed in the preparation of, or the provisions to be included in, draft local environmental plans.

(2)  A certificate issued under this section may be granted subject to the condition that the draft local environmental plan be amended in the manner specified in the certificate before it is publicly exhibited in accordance with section 66.

(3)  Where a certificate is not issued under this section, the Director-General shall return the draft plan to the council, giving the reasons why the certificate was not issued, and directing the council to amend the draft plan in such a manner as to enable a certificate to be issued, or to take such other action as is appropriate.

(4)  The council shall comply with a direction given under subsection (3).

66   Public exhibition of draft local environmental plan

(1)  Where a council receives a certificate under section 65 with respect to a draft local environmental plan, it shall, after complying with any condition subject to which the certificate was granted and subject to the regulations:

(a)  give public notice, in a form and manner determined by the council, of the place at which, the dates on which, and the times during which, the environmental study prepared by the council under section 57 of the land to which the draft local environmental plan applies and the draft local environmental plan may be inspected by the public,

(b)  publicly exhibit at the place, on the dates and during the times set out in the notice:

(i)  a copy of that environmental study and draft local environmental plan,

(ii)  a copy of any standard instrument, environmental planning instrument or direction under section 117 that substantially governs the content and operation of the draft local environmental plan (or provide for access to such a copy), and

(iii)  a statement to the effect that any such standard instrument, environmental planning instrument or direction substantially governs the content and operation of the draft local environmental plan and that any submissions made pursuant to section 67 should be made having regard to that fact,

(c)  specify, in the notice, the period (being a period which is or includes the period referred to in subsection (2)) during which submissions may be made to the council in accordance with section 67, and

(d)  publicly exhibit such other matter as it considers appropriate or necessary to better enable the draft plan and its implications to be understood.

(2)  A draft local environmental plan shall be publicly exhibited for a period being not less than the prescribed period.

(3)  Where, for the purposes of informing the public generally, a council decides to publicly exhibit a draft local environmental plan otherwise than in accordance with subsection (1), or to publicly exhibit any other matter which could be construed or represented as having a similar purpose to a draft local environmental plan, it shall at the same time publicly exhibit a statement to the effect that the exhibition is not to be regarded as an exhibition for the purposes of this Act.

67   Making of submissions

Any person may, during the period referred to in section 66 (1) (c), make submissions in writing to the council with respect to the provisions of a draft local environmental plan publicly exhibited under section 66 (1) (b).

68   Consideration of submissions

(1)  Where:

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

(b)  the council considers that the issues raised in a submission are of such significance that they should be the subject of a hearing before the council decides whether and, if so, what alterations should be made,

      the council shall, in the prescribed manner, arrange a public hearing in respect of the submission.

(2)  A report of the public hearing shall be furnished to the council and the council shall make public the report.

(3)  The council shall consider the submission and the report furnished pursuant to subsection (2) and may make any alterations it considers are necessary to the draft local environmental plan arising from its consideration of submissions or matters raised at any public hearing.

(3A)  An alteration made by a council pursuant to subsection (3) need not relate to a submission.

(3B)  The council may (but need not) give public notice of and publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to subsection (3). The provisions of this section and sections 66 and 67, with any necessary adaptations, apply to any such exhibition of a draft plan, but not so as to require a further certificate under section 65.

(4)  The council shall, subject to and except as may be provided by the regulations, submit to the Director-General:

(a)  details of all submissions,

(b)  the report of any public hearing,

(c)  the draft local environmental plan and the reasons for any alterations made to the plan pursuant to subsection (3), and

(d)  a statement:

(i)  to the effect that the provisions of sections 66 and 67 and this section relating to public involvement in the preparation of the draft plan have been complied with,

(ii)  specifying the environmental planning instruments and directions under section 117 that have been taken into consideration,

(iii)  giving details of any inconsistency between the draft plan and any instrument or direction referred to in subparagraph (ii) and the reasons justifying the inconsistency, and

(iv)  giving details of the reasons justifying the exclusion of provisions of the draft plan under subsection (5) or the exclusion from the application of the draft plan of any land under that subsection.

(5)  In submitting the draft local environmental plan, the council may exclude certain provisions of the draft plan or exclude part of the land from the draft plan, or both (in this section referred to as the deferred matter) which, in its opinion, require or requires further consideration but which should not prejudice the consideration by the Director-General and the Minister of the draft plan as submitted.

(6)  The council may subsequently take action under this section in respect of the deferred matter, without having to publicly re-exhibit that deferred matter, as if it were a draft local environmental plan.

(7)  More than one public hearing may be held in respect of any submissions, and one hearing may be held in respect of more than one submission.

(8)  The regulations may make provision for or with respect to the conduct of a public hearing.

(9)  After a draft local environmental plan has been submitted to the Director-General under this section:

(a)  the council and the Director-General may (on one or more occasions) agree to the council making changes to the draft plan and resubmitting it under this section, or

(b)  the Director-General may (on one or more occasions) return the draft plan so that the council can make changes to accord with any applicable standard instrument under section 33A or to take into account any directions under section 117.

This subsection applies whether or not a report under section 69 has been furnished in respect of the draft plan.

69   Report by Director-General

(1)  The Director-General shall furnish a report to the Minister as to:

(a)  whether the draft local environmental plan submitted under section 68 (4) is inconsistent with any State environmental planning policy, regional environmental plan, or relevant direction under section 117, applying to the land to which the draft plan applies,

(b)  if there is such an inconsistency—whether the inconsistency is justifiable in the circumstances,

(c)  whether the provisions of sections 66, 67 and 68 relating to public involvement in the preparation of the draft plan have been complied with,

(d)  the relationship between the draft plan, and other proposed and any existing environmental planning instruments, and any relevant directions under section 117, applying to the land to which the draft plan applies, and

(e)  such other matters (if any) relating to the draft plan as the Director-General thinks appropriate.

(2)  The Director-General is not to furnish a report to the Minister under this section unless the Director-General is satisfied that the draft local environmental plan has been prepared in accordance with any applicable standard instrument under section 33A. This subsection does not limit the matters that the Director-General is required to consider for the purposes of a report.

70   Making of local environmental plan

(1)  After considering the Director-General’s report made under section 69, the Minister may:

(a)  make a local environmental plan:

(i)  in accordance with the draft local environmental plan as submitted by the council under section 68 (4), or

(ii)  in accordance with that draft plan with such alterations as the Minister thinks fit relating to any matter which in the opinion of the Minister is of significance for State or regional environmental planning,

(b)  direct that action be taken in accordance with subsection (3), or

(c)  decide not to proceed with the draft local environmental plan.

(1A)  Without limiting subsection (1) (a) (ii), the alterations that may be made by the Minister relating to any matters which in the opinion of the Minister are of significance for State or regional environmental planning may comprise changes of substance to the draft local environmental plan and may arise from submissions or otherwise from the Minister’s consideration of the matters in the draft plan.

(2)  A local environmental plan shall apply to such area or part of such area as is described in that plan.

(3)  The Minister may (but need not) direct the council to publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to this section or section 68, and the provisions of this section and sections 66, 67, 68 and 69 shall, with any necessary adaptations, apply to that plan.

(4)  Where the Minister decides to make a plan in accordance with subsection (1), the Minister may exclude certain provisions of the draft plan or exclude part of the land from the draft plan, or both (in this section referred to as the deferred matter) which, in his or her opinion, require or requires further consideration but which should not prejudice the making of the local environmental plan.

(5)  The Minister may subsequently take action in accordance with this section in respect of the deferred matter as if it were a draft local environmental plan submitted under section 68 (4).

(6)  Where the Minister decides not to proceed with a draft local environmental plan under subsection (1) (c), the Minister shall give such directions to the council as the Minister considers necessary in relation to that decision.

(7)  The Minister shall inform the council of his or her decision under subsection (1) and, except where the Minister decides to make a local environmental plan in accordance with the draft local environmental plan as submitted by the council under section 68 (4), the reasons therefor, and may at the same time give directions to the council as to the procedure to be followed in connection with making his or her decision known to the public.

(8)  Notwithstanding anything in this section and without affecting the power to make alterations pursuant to subsection (1), the Minister may make a local environmental plan with such alterations as the Minister thinks fit, being alterations that do not affect the substance of the provisions of the plan as submitted by the council or as altered pursuant to subsection (1).

71, 72   (Repealed)

Division 4A Applications for the preparation of local environmental plans

72A   Making of application

(1)  A person may make an application under this Division to a council for the preparation of a local environmental plan by the council to enable the carrying out of any prescribed residential development on any prescribed land within its area.

(2)  Such an application may only be made if the development the subject of the application is:

(a)  development which, but for this Division, cannot be carried out either with or without development consent, or

(b)  development the carrying out of which, but for this Division, is prohibited under this Act.

(3)  Such an application:

(a)  shall be made in the prescribed form and manner, and

(b)  shall be accompanied by a development application made in accordance with section 78A for consent to carry out the development.

72B   Preparation of local environmental plan and advertising of development application

(1)  Where an application is made under this Division, the council shall:

(a)  with respect only to the land the subject of the accompanying development application, prepare a draft local environmental plan to enable the carrying out, with the council’s consent, of the development the subject of the application, and

(b)  prepare the draft plan in the terms determined by the Minister and notified to the council, and

(c)  provide in the draft plan, unless the development is designated development, for the development to be advertised development, and

(d)  not later than 14 days after lodgment of the application or after the Minister notifies the council of the terms of the draft plan, whichever is the later, exhibit the draft plan in accordance with section 66, and

(e)  if the development is not designated development—not later than 14 days after lodgment of the application, notify the accompanying development application in accordance with section 79A, and

(f)  if the development is designated development—not later than 34 days after lodgment of the application, complete the notification of the accompanying development application in accordance with section 79.

(2)  Any person may:

(a)  in accordance with section 67, make submissions with respect to the draft local environmental plan, and

(b)  in accordance with the regulations or section 79 (5), inspect and make submissions with respect to the accompanying development application.

(3)  Except in the case of a person making a submission in respect of an application to carry out designated development, a person making a submission is not an objector for the purposes of this Act.

72C   Consideration and making of plan

(1)  The council shall consider:

(a)  any submission made in accordance with section 67, and

(b)  any matters prescribed by the regulations,

      and shall decide whether, in its opinion, the draft local environmental plan should be made.

(2)  If the council decides that the draft local environmental plan should be made, it shall, within 14 days of its decision, submit to the Director-General:

(a)  the draft plan, and

(b)  a statement to the effect that the provisions of section 72B relating to public involvement in connection with the draft plan have been complied with.

(3)  On receipt of the draft local environmental plan and the statement, the Director-General shall arrange for the draft plan to be published in the Gazette, with such alterations as the Director-General thinks fit, being alterations that do not affect the substance of the provisions of the plan.

(4)  The draft local environmental plan shall take effect on and from the date of its publication in the Gazette as if it were a local environmental plan made under section 70 by the Minister.

72D   Determination of development application by council

(1)  If the council decides that the draft local environmental plan should be made, the council shall determine the accompanying development application as if the draft plan were in force.

(2)  In determining the accompanying development application, the council shall take into consideration (in addition to the matters required to be considered under section 79C (1)):

(a)  any submissions made under section 72B, and

(b)  any matters prescribed by the regulations.

(3)  If the council decides that the draft local environmental plan should not be made, the council shall refuse consent to the accompanying development application.

(4)  Section 82 applies to the accompanying development application whether or not the council makes a decision about the making of the draft local environmental plan.

(5)  Nothing in this Act or in any environmental planning instrument prevents the council from determining the accompanying development application in accordance with this Division.

72E   Appeals

(1)  If an appeal is made under section 97 (1) in respect of a development application to which this Division applies, each person who made a submission under section 87 in respect of the application shall be given notice by the council of that appeal and shall, on application made to the Court in accordance with rules of Court within 28 days after the date of the notice, be entitled to be heard at the hearing of the appeal as if the person were a party to the appeal.

(2)  The Court shall make its decision on an appeal under section 97 (1) or 98 (1) in respect of the development application as if the draft local environmental plan were in force.

72F   Making of local environmental plan following decision of Court

(1)  If the decision of the Court on an appeal has the effect of granting consent either unconditionally or subject to conditions to the carrying out of the development the subject of the development application, the registrar of the Court shall notify the Director-General accordingly.

(2)  If the Director-General has not already done so, the Director-General shall arrange for the draft local environmental plan which the development application accompanied to be published in the Gazette, with such alterations as the Director-General thinks fit, being alterations that do not affect the substance of the provisions of the plan.

(3)  The draft local environmental plan shall take effect on and from the date of its publication in the Gazette as if it were a local environmental plan made under section 70 by the Minister.

72G   Date from which consent operates

A consent granted by a council or by a decision of the Court to a development application to which this Division applies shall be taken:

(a)  to have been granted under Part 4, and

(b)  to become effective in accordance with section 83 and to operate from the date on which it becomes effective in accordance with that section or the date on which the draft local environmental plan which the development application accompanied is published in the Gazette, whichever is the later.

72H   Application of Divisions 1 and 5 and Part 4

Divisions 1 and 5 and Part 4 apply to and in respect of a local environmental plan prepared under this Division and a development application made under this Division:

(a)  except to the extent provided by this Division, and

(b)  except to the extent of any inconsistency between a provision of those Divisions or that Part and a provision of this Division.

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.

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 preparation and making of a draft 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.

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

(3)  If the draft environmental planning instrument proposes to make 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   Commission of Inquiry

Nothing in this Act prevents the Minister from directing that a single inquiry be held, in accordance with section 119, by a Commission of Inquiry into both a draft environmental planning instrument and a development application that are being dealt with under this Division.

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 regional environmental plans, 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   Minor amendments of environmental planning instruments

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.

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)  A subsequent environmental planning instrument shall be made in accordance with the provisions of this Part except that:

(a)  where the subsequent instrument is a regional environmental plan—the provisions of sections 41 and 44 (b) shall not apply, unless the Minister directs to the contrary, or

(b)  where the subsequent instrument is a local environmental plan—the provisions of sections 57 and 61 shall not apply, unless the Director-General directs to the contrary.

(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

(1)  In this Division:

relevant planning authority means:

(a)  in relation to local environmental plans applying to land in (or development in) a local government area—the council of the area, and

(b)  in relation to other environmental planning instruments (or development in the area to which they apply)—the Director-General.

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

(iv)  an application for a complying development certificate, or

(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 and No 87 of 6.7.2007, p 4412.

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 and No 1 of 5.1.2007, p 4.

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   Independent hearing and assessment panels

(1)  The Minister may constitute:

(a)  a panel of experts, or

(b)  a panel of officers representing the Department and other relevant public authorities,

      to assess any aspect of a project referred to the panel by the Minister.

(2)  The members of a panel of experts are not to be officers of the Department or of other public authorities having regulatory functions in connection with the project.

(3)  The members of a panel of officers are to be nominated by the respective chief executive officers of the public authorities that the Minister nominates to constitute the panel.

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

(5)  A panel is to exercise its functions in accordance with 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 Department is to provide staff and facilities for the purpose of enabling a panel to exercise its functions.

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 a panel constituted under section 75G 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)  if the Minister has directed an inquiry be held in accordance with section 119 with respect to the project—any findings or recommendations of the Commission of Inquiry.

(3)  The Minister cannot approve of the carrying out of a project:

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

(b)  that would (but for this Part) be wholly prohibited under an environmental planning instrument by the operation of section 76B.

(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 an inquiry held in accordance with section 119 or of a report of a panel of experts under section 75G, 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 an inquiry held in accordance with section 119 or of a report of a panel of experts under section 75G, 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, panel report, public consultation and Director-General’s report for concept plan

Sections 75F (Environmental assessment requirements for approval), 75G (Independent hearing and assessment panels), 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)  if the Minister has directed an inquiry be held in accordance with section 119 with respect to the project—any findings or recommendations of the Commission of Inquiry.

(3)  The Minister cannot give approval for the concept plan for a project:

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

(b)  that would (but for this Part) be wholly prohibited under an environmental planning instrument by the operation of section 76B.

(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),

(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 an inquiry held in accordance with section 119 or of a report of a panel of experts under section 75G, 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.

(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)  Sections 116B and 116G apply to an approved project, but the other provisions of Part 5A do 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 an inquiry held in accordance with section 119 or of a report of a panel of experts under section 75G.

(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   Transitional arrangements

(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)  However, on the declaration being made, any development consent under Part 4 or approval under Part 5 that authorises the carrying out of the development ceases to have effect. The consent or approval is revived if the declaration is subsequently revoked without any approval of the project under this Part.

(3)  If the declaration of a project under this Part is revoked after approval has been given under this Part to carry out the project, the approval is (subject to the regulations) taken to be a development consent for the project granted under Part 4.

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 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, 2 or 3 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 environmental planning instrument).

(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 draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the draft 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 Commission of Inquiry is held concerning environmental aspects of proposed development
A consent authority that has received notice that the Minister has directed that an inquiry be held, in accordance with section 119, 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 inquiry has been held, and

(ii)  the consent authority has considered the findings and recommendations of the Commission of Inquiry 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 directed that an inquiry be held by a Commission of Inquiry in relation to any proposed designated development the subject of a development application, the Minister is to determine the application after the inquiry has been held and the Minister has considered the findings and recommendations of the Commission of Inquiry.

(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.

(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 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 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 116G, 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 300 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 an inquiry by a Commission of Inquiry—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

Note. This Division applies to development that is declared by an environmental planning instrument to be complying development which means that the whole of the development is subject to specified development standards.

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) Public notification
An application for a complying development certificate is to be publicly notified in accordance with a development control plan if the development control plan requires the public notification of the complying development.

(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 7 days (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 the council or accredited certifier is satisfied that 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.

(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 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 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

88–89A(Repealed)

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 to which Part 5A applies.

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.

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   (Repealed)

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.

(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.

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 in the Gazette, 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 in the Gazette 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 regional environmental plan or 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 modified (if at all), and

(b)  it has notified the application in accordance with:

(i)  the regulations, if the regulations so require, and

(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

(c)  it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, 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.

(1A)  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.

(1B)  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).

(1C)  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.

(2)  After determining an application for modification of a consent under this section, the consent authority must send a notice of its determination to each person who made a submission in respect of the application for modification.

(3)  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.

(4)  A person who made a submission in respect of the application for modification and who is dissatisfied with the determination of the application by the consent authority may, in accordance with rules of court, apply to the Court for leave to appeal against the determination within 28 days after the date on which notice of the determination was given to the person and the Court may grant or refuse leave to appeal.

96A   Revocation or modification of development consent

(1)  If at any time it appears to:

(a)  the Director-General, having regard to the provisions of any draft State environmental planning policy or draft regional environmental plan, or

(b)  a council (being the consent authority in relation to the development application referred to in this subsection), having regard to the provisions of any draft local environmental plan,

      that any development for which consent under this Division is in force in relation to a development application should not be carried out or completed, or should not be carried out or completed except with modifications, the Director-General or council may, by instrument in writing, revoke or modify that consent.

(2)  This section applies to complying development for which a complying development certificate has been issued in the same way as it applies to development for which development consent has been granted and so applies to enable a council to revoke or modify a complying development certificate whether the certificate was issued by the council or by an accredited certifier.

(3)  Before revoking or modifying the consent, the Director-General or council must:

(a)  by notice in writing inform, in accordance with the regulations:

(i)  each person who in the Director-General’s or council’s opinion will be adversely affected by the revocation or modification of the consent, and

(ii)  such persons as may be prescribed by the regulations,

      of the intention to revoke or modify the consent, and

(b)  afford each such person the opportunity of appearing before the Director-General or council, or a person appointed by the Director-General or council, to show cause why the revocation or modification should not be effected.

(4)  The revocation or modification of a development consent takes effect, subject to this section, from the date on which the instrument referred to in subsection (1) is served on the owner of the land to which the consent applies.

(5)  Within 3 months after the date on which the revocation or modification of the consent takes effect, the applicant for the consent, or any other person entitled to rely on the consent, who is aggrieved by the revocation or modification may appeal to the Court, and the Court may determine the appeal.

(6)  The Court may determine the appeal by affirming, varying or cancelling the instrument of revocation or modification.

(7)  If a development consent is revoked or modified under this section, a person aggrieved by the revocation or modification is entitled to recover from:

(a)  the Government of New South Wales—if the Director-General is responsible for the issue of the instrument of revocation or modification, or

(b)  the council—if the council is responsible for the issue of that instrument,

      compensation for expenditure incurred pursuant to the consent during the period between the date on which the consent becomes effective and the date of service of the notice under subsection (3) which expenditure is rendered abortive by the revocation or modification of that consent.

(8)  The Director-General or council must, on or as soon as practicable after the date on which the instrument referred to in subsection (1) is served on the owner of the land referred to in subsection (4), cause a copy of the instrument to be sent to each person who is, in the Director-General’s or council’s opinion, likely to be disadvantaged by the revocation or modification of the consent.

(9)  This section does not apply to or in respect of a consent granted by the Court or by the Minister.

Division 8 Appeals and related matters

97   Appeal by an applicant—development applications

(1)  An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant’s development application (including a determination on a review under section 82A) may appeal to the Court within 12 months after:

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

(b)  the date on which that application is taken to have been determined under section 82 (1).

(2)  An applicant who is dissatisfied with a decision that a consent authority, or a person specified by the consent authority, is not satisfied as to a matter, being a specified aspect of the development that is to be carried out to the satisfaction of the consent authority, or person, pursuant to a condition imposed under section 80A (2), may appeal to the Court within 12 months after:

(a)  the consent authority or person notifies the applicant of its decision, or

(b)  the date on which the applicant’s request is taken to have been determined under section 80A (3).

(3)  An applicant who is dissatisfied with a decision that a consent authority is not satisfied as to a matter, being a matter as to which it must be satisfied before a “deferred commencement” consent under section 80 (3) can operate, may appeal to the Court within 12 months after the consent authority notifies the applicant of its decision.

(4)  If an appeal has been made under this section relating to a development application for consent to carry out designated development, each objector to that application is to be given notice by the consent authority 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 he, she or it were a party to the appeal.

(5)  If:

(a)  an appeal has been made under this section relating to a development application, and

(b)  the application is one:

(i)  in relation to which the concurrence of a Minister or public authority is required under this Act, or

(ii)  for consent to carry out integrated development that involves an approval body (within the meaning of Division 5),

      that Minister, public authority or approval body must be given notice by the consent authority 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 he, she or it were a party to the appeal.

(6)  An appeal under this section relating to a development application for consent to carry out designated development in respect of which an objection has been made in accordance with the regulations must not be heard by the Court until after the expiration of the time within which an objector may appeal to the Court under section 98.

98   Appeal by an objector

(1)  An objector who is dissatisfied with the determination of a consent authority to grant consent to a development application for designated development (including designated development that is integrated development) either unconditionally or subject to conditions may, within 28 days after the date on which notice of the determination was given in accordance with the regulations, and in accordance with rules of court, appeal to the Court.

(2)  If an appeal has been made under subsection (1), the person who made the development application and the consent authority referred to in that subsection are to be given notice of that appeal, in accordance with rules of court, and are entitled to be heard at the hearing of the appeal as parties to the appeal.

(3)  If:

(a)  an appeal has been made under subsection (1) relating to a development application, and

(b)  the consent authority referred to in subsection (1) is given notice of an appeal under that subsection, and

(c)  the application is one:

(i)  in relation to which the concurrence of a Minister or public authority is required under this Act, or

(ii)  for consent to carry out integrated development that involves an approval body (within the meaning of Division 5),

      that Minister, public authority or approval body must be given notice of that appeal by the consent authority 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 he, she or it were a party to the appeal.

98A   Appeal concerning security

(1)  An applicant who is dissatisfied with:

(a)  a decision of a consent authority with respect to the provision (otherwise than by the imposition of a condition of development consent) of security of a kind referred to in section 80A (6), or

(b)  the failure or refusal of the consent authority to release a security held by it,

      may appeal to the Court.

Note. The right to appeal against the imposition of a condition of development consent is excluded from subsection (1) (a) so as not to duplicate the right of appeal conferred by section 97.

(2)  An appeal with respect to a decision referred to in subsection (1) (a) may be made within 12 months after the applicant received notice of the decision.

(3)  An appeal with respect to a failure or refusal referred to in subsection (1) (b) may be made:

(a)  except as provided by paragraph (b), within 6 months after the work to which the security relates has been completed, or

(b)  if the security is provided in respect of contingencies that may arise on or after completion of the work to which the security relates, not earlier than 6 months and not later than 12 months after the completion of the work.

99   Joint hearing of certain appeals

(1)  If an appeal is made under section 97 with respect to a development application, the appeal is, as far as practicable, to be heard together with any appeals under section 98 made with respect to the application.

(2)  Without affecting subsection (1), if 2 or more appeals are made under section 98 with respect to the same development application, the appeals are, as far as practicable, to be heard together.

(3)  If 2 or more appeals are made under section 96A (5) with respect to the same notice referred to in section 96A, the appeals are, as far as practicable, to be heard together.

Division 9 Miscellaneous

100   Register of consents and certificates

(1)  A council must, in the prescribed form and manner (if any), keep a register of:

(a)  applications for development consent, and

(b)  the determination of applications for development consent (including the terms of development consents granted under this Part), and

(c)  the determination of applications for complying development certificates (including the terms of complying development certificates issued under this Part), and

(d)  decisions on appeal from any determination made under this Part.

(2)  The register is to be available for public inspection, without charge, at the office of the council during ordinary office hours.

101   Validity of development consents and complying development certificates

If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.

102   Non-compliance with certain provisions regarding State significant development

(1)  This section applies to a development consent granted, or purporting to be granted, by the Minister, before or after the commencement of this section.

(2)  The only requirements of this Act that are mandatory in connection with the validity of a development consent to which subsection (1) applies are as follows:

(a)  A requirement that a development application to carry out designated development and its accompanying information be publicly exhibited for the minimum period of time.

(b)  A requirement that a development application to carry out development, being development, other than designated development, to which some or all of the provisions of sections 84, 85, 86, 87 (1) and 90, as in force immediately before the commencement of this section, applied by virtue of an environmental planning instrument, as referred to in section 30 (4), as then in force, be publicly exhibited for the minimum period of time.

(c)  A requirement that a development application to carry out advertised development and its accompanying information be publicly exhibited for the minimum period of time prescribed by the regulations.

103   Revocation or regrant of development consents after order of Court

(1)  This section applies to a development consent granted, or purporting to be granted, by a consent authority, to which an order of suspension applies under section 25B of the Land and Environment Court Act 1979.

(2)  The consent authority may revoke a development consent to which this section applies, whether or not the terms imposed by the Court under section 25B of the Land and Environment Court Act 1979 have been complied with.

(3)  However, if the terms imposed by the Court have been substantially complied with, the consent authority may revoke the development consent to which this section applies and grant a new development consent with such alterations to the revoked consent as the consent authority thinks appropriate having regard to the terms themselves and to any matters arising in the course of complying with the terms. Such a grant of a development consent is referred to as a regrant of the consent.

(4)  No preliminary steps need be taken with regard to the regrant of a development consent under this section, other than those that are required to secure compliance with those terms.

(5)  Section 81 and such other provisions of this Act as may be prescribed by the regulations apply to development consents regranted under this section.

104   Appeals and other provisions relating to development consents after order of Court

(1)  A development consent declared to be valid under section 25C of the Land and Environment Court Act 1979:

(a)  is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and

(b)  is operative as from the date the development consent originally took effect or purported to take effect, unless the Court otherwise orders.

(2)  A development consent declared under section 25C of the Land and Environment Court Act 1979 to be validly regranted:

(a)  is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and

(b)  takes effect from the date of the declaration or another date specified by the Court.

104A   Voluntary surrender of development consent

(1)  A development consent may be surrendered, subject to and in accordance with the regulations, by any person entitled to act on the consent.

(2)  A development consent may be surrendered under this section even if, on the making of an appeal under section 97 or 98, the consent has ceased to be, or does not become, effective as referred to in section 83 (2).

105   Regulations—Part 4

(1)  In addition to any other matters for or with respect to which regulations may be made for the purposes of this Part, the regulations may make provision for or with respect to the following:

(a)  any matter that is necessary or convenient to be done before making a development application,

(b)  the persons who may make development applications,

(c)  the making, consideration and determination of development applications that are made by or on behalf of the Crown, public authorities and persons prescribed by the regulations,

(d)  the form of development applications,

(e)  the documents and information required to accompany development applications, including documents that will assist the consent authority in assessing the environmental effects of development,

(f)  the fees for development applications,

(g)  the notification and advertising of development applications (and proposed development),

(h)  the form and contents of notices of development applications, the manner of giving notices and the persons to whom notices are to be given,

(i)  the requirement for consultation with, or obtaining the concurrence of, the Director-General, public authorities and other persons concerning proposed development,

(j)  the preparation, contents, form and submission of environmental impact statements and statements of environmental effects,

(k)  the documents and information required to accompany statements of environmental effects and environmental impact statements,

(l)  the making of submissions, by way of objection or otherwise, with respect to proposed development and the consideration of submissions,

(m)  the holding of inquiries into proposed development,

(n)  procedures concerning complying development, advertised development and designated development,

(n1)  authorising a consent authority or council to impose a fee with respect to the lodging of any complying development certificate with it, whether pursuant to a requirement made by or under this Act or otherwise,

(o)  procedures concerning integrated development,

(p)  notifications and notices for the purposes of sections 81A and 86,

(p1)  procedural matters in relation to the review, under section 82A, of determinations,

(q)  the modification of development consents, including the fees for applications for modification,

(r)  the periods within which specified aspects of the environmental planning control process must be completed and the variation of those periods,

(s)  the effect of a failure to comply with any requirement of the regulations,

(t)  the notification of applicants and persons making submissions (including by way of objection) of the determination of development applications, reasons for the determinations and any rights of appeal.

(2)  The regulations may provide that an applicant who is not entitled to copyright in a document forming part of or accompanying the development application or the application for a complying development certificate is taken to have indemnified all persons using the application and document in accordance with this Act against any claim or action in respect of breach of copyright.

(3)  The regulations may provide for the accreditation of building products and systems, including the following:

(a)  applications for accreditation,

(b)  the determination of applications for accreditation,

(c)  revocation of accreditation,

(d)  extension or renewal of accreditation,

(e)  the adoption, application or incorporation (whether with or without modification) of a scheme of accreditation (however described) of building products and systems,

(f)  the notification of consent authorities of information concerning accreditation (including accreditation referred to in paragraph (e)).

(4)  The regulations may provide for the adoption and application of the Building Code of Australia.

(5)  The regulations may make provision for or with respect to the remission of part of the fees for development applications to the Director-General for payment, in accordance with subsection (6), into the Building Professionals Board Fund established under the Building Professionals Act 2005.

(6)  The Director-General is to pay into the Building Professionals Board Fund established under the Building Professionals Act 2005 such part of the fees for development applications remitted to the Director-General:

(a)  as may be provided for in the regulations, or

(b)  subject to the regulations (if any), as the Minister directs to be paid into the Fund.

105A   Transitional—amendment to list of vulnerable species

(1)  An amendment to the list of vulnerable species does not apply in respect of any development application made under section 78A before the amendment was made.

(2)  This section ceases to apply in respect of a development application if the application has not been determined by the consent authority at the end of the period of 12 months after the date the application was made under section 78A.

(3)  In this section:

list of vulnerable species means Part 1 of Schedule 2 to the Threatened Species Conservation Act 1995 or, subject to section 5C, Schedule 5 to the Fisheries Management Act 1994.

Division 10 Existing uses

106   Definition of “existing use”

In this Division, existing use means:

(a)  the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, and

(b)  the use of a building, work or land:

(i)  for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii)  that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

107   Continuance of and limitations on existing use

(1)  Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

(2)  Nothing in subsection (1) authorises:

(a)  any alteration or extension to or rebuilding of a building or work, or

(b)  any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c)  without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or

(d)  the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or

(e)  the continuance of the use therein mentioned where that use is abandoned.

(3)  Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

108   Regulations respecting existing use

(1)  The regulations may make provision for or with respect to existing use and, in particular, for or with respect to:

(a)  the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and

(b)  the change of an existing use to another use, and

(c)  the enlargement or expansion or intensification of an existing use.

(2)  The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.

(3)  An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.

(4)  Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 89 to a development application for consent to carry out prohibited development.

109   Continuance of and limitations on other lawful uses

(1)  Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.

(2)  Nothing in subsection (1) authorises:

(a)  any alteration or extension to or rebuilding of a building or work, or

(b)  any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c)  without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or

(d)  the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or

(e)  the continuance of the use therein mentioned where that use is abandoned.

(3)  Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

109A   Uses unlawfully commenced

(1)  The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except:

(a)  the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor, or

(b)  the granting of development consent to that use.

(2)  The continuation of a use of a building, work or land that was unlawfully commenced is, and is taken always to have been, development of the land within the meaning of and for the purposes of any deemed environmental planning instrument applying, or which at any time applied, to or in respect of the building, work or land.

109B   Saving of effect of existing consents

(1)  Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.

(2)  This section:

(a)  applies to consents lawfully granted before or after the commencement of this Act, and

(b)  does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and

(c)  has effect despite anything to the contrary in section 107 or 109.

(3)  This section is taken to have commenced on the commencement of this Act.

Part 4A Certification of development

109C   Part 4A certificates

(1)  The following certificates (known collectively as Part 4A certificates) may be issued for the purposes of this Part:

(a)  a compliance certificate, being a certificate to the effect that:

(i)  specified building work or subdivision work has been completed as specified in the certificate and complies with specified plans and specifications, or

(ii)  a condition with respect to specified building work or subdivision work (being a condition attached to a development consent or complying development certificate) has been duly complied with, or

(iii)  a specified building or proposed building has a specified classification identified in accordance with the Building Code of Australia, or

(iv)  any specified aspect of development complies with the requirements of any other provisions prescribed by the regulations, or

(v)  any specified aspect of development (including design of development) complies with standards or requirements specified in the certificate with respect to the development,

(b)  a construction certificate, being a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A (5),

(c)  an occupation certificate, being a certificate that authorises:

(i)  the occupation and use of a new building, or

(ii)  a change of building use for an existing building,

(d)  a subdivision certificate, being a certificate that authorises the registration of a plan of subdivision under Division 3 of Part 23 of the Conveyancing Act 1919.

(1A)  A single compliance certificate may deal with any number of matters, whether of the same or of a different kind.

(2)  An occupation certificate:

(a)  may be an interim certificate or a final certificate, and

(b)  may be issued for the whole or any part of a building.

(3)  If the regulations so provide, a construction certificate may be issued subject to conditions.

(4)  In this section:

new building includes an altered portion of, or an extension to, an existing building.

Notes. 

(1)   Sections 109M and 109N prohibit the occupation or use of a new building, and the change of building use for an existing building, unless an occupation certificate has been issued for the building.

(2)   A plan of subdivision (whether or not the subdivision requires development consent) is not in registrable form for the purposes of the Conveyancing Act 1919 unless it is endorsed with a subdivision certificate issued under this Division. Plans prepared for the purposes of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 are not plans of subdivision within the meaning of section 195 of the Conveyancing Act 1919 and are therefore not subject to this Division. The regulations under the Conveyancing Act 1919 provide for the manner and form in which a plan of subdivision is to be endorsed for the purpose of enabling the plan to be registered under that Act.

109D   Certifying authorities

(1)  Subject to subsections (2) and (3), the following kinds of Part 4A certificate may be issued by the following kinds of persons:

(a)  a compliance certificate may be issued by a consent authority, the council or an accredited certifier,

(b)  a construction certificate may be issued by a consent authority, the council or an accredited certifier,

(c)  an occupation certificate may be issued by a consent authority, the council or an accredited certifier,

(d)  a subdivision certificate may be issued:

(i)  in the case of subdivision the subject of development consent, by the consent authority or the council,

(ii)  in the case of subdivision that is not the subject of development consent, by the council,

(iii)  in the case of subdivision carried out by or on behalf of the Crown or a prescribed person, by the Crown or prescribed person or by any person acting on behalf of the Crown or prescribed person,

(iv)  in the case of subdivision of a kind identified by an environmental planning instrument as one in respect of which an accredited certifier may be a certifying authority, by an accredited certifier.

(2)  An occupation certificate must not be issued to authorise a person to commence occupation or use of a new building except by the principal certifying authority appointed for the erection of the building.

(3)  A subdivision certificate must not be issued for a subdivision involving subdivision work except by the principal certifying authority appointed for the carrying out of the subdivision work.

(4)  In this section:

new building includes an altered portion of, or an extension to, an existing building.

109E   Principal certifying authorities

(1)  The person having the benefit of a development consent or complying development certificate for development involving building work or subdivision work may appoint the consent authority, the council or an accredited certifier as the principal certifying authority for the development.

(1AA)  The council must, if appointed under subsection (1), accept that appointment.

(1A)  Despite subsection (1), such an appointment may not be made by any contractor or other person who will carry out the building work or subdivision work unless the contractor or other person is the owner of the land on which the work is to be carried out.

(2)  Despite subsection (1), an accredited certifier must not be appointed as the principal certifying authority for development involving subdivision work unless the subdivision to which the work relates is of a kind identified by an environmental planning instrument as one in respect of which an accredited certifier may be a certifying authority.

(3)  A principal certifying authority for building work or subdivision work to be carried out on a site is required to be satisfied:

(a)  that a construction certificate or complying development certificate has been issued for such of the building work or subdivision work as requires development consent and over which the principal certifying authority has control, before the work commences on the site, and

(b)  that the principal contractor for the work is the holder of the appropriate licence and is covered by the appropriate insurance, in each case if required by the Home Building Act 1989, before any residential building work over which the principal certifying authority has control commences on the site, unless the work is to be carried out by an owner-builder, and

(c)  that the owner-builder is the holder of any owner-builder permit required under the Home Building Act 1989, before an owner-builder commences on the site any residential building work over which the principal certifying authority has control, and

(d)  that building work or subdivision work on the site has been inspected by the principal certifying authority or another certifying authority on such occasions (if any) as are prescribed by the regulations and on such other occasions as may be required by the principal certifying authority, before the principal certifying authority issues an occupation certificate or subdivision certificate for the building or work, and

(e)  that any preconditions required by a development consent or complying development certificate to be met for the work before the issue of an occupation certificate or subdivision certificate have been met, before the principal certifying authority issues the occupation certificate or subdivision certificate.

(4)  A principal certifying authority must also comply with such other requirements of a like or different nature as may be imposed on principal certifying authorities by the regulations.

Note. Section 81A prohibits the commencement of building work or subdivision work unless the consent authority has been notified of the appointment of a principal certifying authority for the work. Section 109D (2) prohibits the issue of an occupation certificate authorising the occupation and use of a new building except by the principal certifying authority appointed for the erection of the building. Section 109D (3) prohibits the issue of a subdivision certificate for a subdivision involving subdivision work except by the principal certifying authority appointed for the carrying out of the subdivision.

109EA   Replacement of principal certifying authorities

(1)  A person may not be appointed to replace another person as the principal certifying authority for development unless:

(a)  the Building Professionals Board so approves in writing and the relevant council and consent authority are notified before the replacement occurs, or

(b)  the current principal certifying authority, the proposed principal certifying authority and the person who appointed the current principal certifying authority agree and the Building Professionals Board and the relevant council and consent authority are notified before the replacement occurs.

(2)  An application to the Building Professionals Board for approval or a notification under subsection (1) is to be accompanied by the fee (if any) prescribed by the regulations under the Building Professionals Act 2005 and is to be in a form approved by the Board.

(3)  If the Building Professionals Board approves the appointment of the relevant council to replace another person as the principal certifying authority under subsection (1) (a), the council must accept that appointment.

109F   Restriction on issue of construction certificates

(1)  A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless the certifying authority is satisfied that:

(a)  the requirements of the regulations referred to in section 81A (5) have been complied with, and

(b)  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.

(1A)  A construction certificate has no effect if it is issued after the building work or subdivision work to which it relates is physically commenced on the land to which the relevant development consent applies.

(2)  A certifying authority must not refuse to issue a construction 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 made for the purposes of Part 4.

(3)  A certifying authority and (but only in the case of a certifying authority that is a consent authority) an employee of a certifying authority do not incur any liability as a consequence of acting in accordance with subsection (2).

109G   Restriction on issue of compliance certificates

A compliance certificate of the kind referred to in section 109C (1) (a) (i) or (ii) must not be issued for any building work or subdivision work unless the certifying authority is satisfied that a development consent or complying development certificate is in force with respect to the building or subdivision to which the work relates.

109H   Restrictions on issue of occupation certificates

(1A)  There are two kinds of occupation certificates, as follows:

(a)  an interim occupation certificate that authorises a person to commence occupation or use of a partially completed new building, or to commence a new use of part of a building resulting from a change of building use for an existing building,

(b)  a final occupation certificate that authorises a person to commence occupation or use of a new building, or to commence a new use of a building resulting from a change of building use for an existing building.

It is not necessary for an interim occupation certificate to be issued before a final occupation certificate is issued with respect to the same building.

(1B)  An occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent or complying development certificate have been met.

(1C)  An interim occupation certificate must not be issued to authorise a person to commence to occupy or use a partially completed new building unless the certifying authority is satisfied:

(a)  that a development consent or complying development certificate is in force with respect to the building, and

(b)  in the case of a building erected pursuant to a development consent but not a complying development certificate, that a construction certificate has been issued with respect to the plans and specifications for the building, and

(c)  that the partially completed building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and

(d)  that such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

(1D)  An interim occupation certificate must not be issued to authorise a person to commence a new use in part of a building resulting from a change of building use of an existing building unless the certifying authority is satisfied:

(a)  that a development consent or complying development certificate is in force with respect to the change of building use, and

(b)  that the part of the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and

(c)  that such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

(1)  A final occupation certificate must not be issued to authorise a person to commence occupation or use of a new building unless the certifying authority is satisfied:

(a)  that a development consent or complying development certificate is in force with respect to the building, and

(b)  in the case of a building erected pursuant to a development consent but not a complying development certificate, that a construction certificate has been issued with respect to the plans and specifications for the building, and

(c)  that the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and

(d)  that such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

(2)  A final occupation certificate must not be issued to authorise a person to commence a new use of a building resulting from a change of building use for an existing building unless the certifying authority is satisfied:

(a)  that a development consent or complying development certificate is in force with respect to the change of building use, and

(b)  that the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and

(c)  that such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

(3)  (Repealed)

(4)  In this section:

new building includes an altered portion of, or an extension to, an existing building.

109I   Effect of occupation certificate on earlier occupation certificates

(1)  A final occupation certificate for the whole of a building revokes any earlier occupation certificate for that building.

(2)  An interim occupation certificate for a part of a building additional to the part or parts in respect of which an earlier interim occupation certificate is in force:

(a)  revokes the earlier interim occupation certificate, and

(b)  applies to the part in respect of which it is issued and to the part or parts in respect of which the earlier interim occupation certificate was in force.

(3)  An occupation certificate (whether interim or final) for a part of a building revokes any earlier occupation certificate to the extent to which it applies to that part.

109J   Restriction on issue of subdivision certificates

(1)  A subdivision certificate must not be issued for a subdivision unless the certifying authority is satisfied of each of the following:

(a)  that the subdivision is not prohibited by or under this Act,

(b)  in the case of subdivision that may not be carried out except with development consent, that a development consent (or, in the case of complying development, a complying development certificate) is in force with respect to the subdivision,

(c)  in the case of subdivision for which a development consent has been granted, that the applicant has complied with all conditions of the consent that, by its terms, are required to be complied with before a subdivision certificate may be issued in relation to the plan of subdivision,

(d)  in the case of subdivision for which a “deferred commencement” consent under section 80 (3) has been granted, that the applicant has satisfied the consent authority concerning all matters as to which the consent authority must be satisfied before the consent can operate,

(e)  in the case of subdivision that relates to land within a water supply authority’s area of operations, that the applicant has obtained a certificate of compliance from the water supply authority with respect to the division of the land,

(f)  in the case of subdivision the subject of an order made by the Court under section 40 of the Land and Environment Court Act 1979 concerning the provision of drainage easements, that all such drainage easements have been acquired by the council referred to in that section,

(g)  in the case of subdivision the subject of a development consent for which the consent authority is required by the regulations to notify any objector:

(i)  that at least 28 days have elapsed since the objector was notified, or

(ii)  if an appeal has been made by the objector within that time, that the appeal has been finally determined.

(2)  Without limiting subsection (1), a subdivision certificate must not be issued for a subdivision that involves subdivision work unless the certifying authority is satisfied:

(a)  that the work has been completed, or

(b)  that agreement has been reached between the applicant for the certificate and the consent authority:

(i)  as to the payment by the applicant to the consent authority of the cost of carrying out the work, and

(ii)  as to when the work will be completed by the consent authority, or

(c)  that agreement has been reached between the applicant for the certificate and the consent authority:

(i)  as to the security to be given by the applicant to the consent authority with respect to the work to be completed, and

(ii)  as to when the work will be completed by the applicant.

(3)  Subsection (2) does not prohibit the issue of a subdivision certificate for part only of land that may be subdivided in accordance with a development consent as long as the requirements of that subsection have been complied with in relation to that part.

(4)  In this section:

certificate of compliance, in relation to a water supply authority, means a certificate of compliance issued by the water supply authority under the Act under which the water supply authority is constituted.

water supply authority means:

(a)  the Sydney Water Corporation, the Hunter Water Corporation or a water supply authority within the meaning of the Water Management Act 2000, or

(b)  a council or county council exercising water supply, sewerage or stormwater drainage functions under Division 2 of Part 3 of Chapter 6 of the Local Government Act 1993.

109K   Appeals against failure or refusal to issue Part 4A certificates

(1)  An applicant for:

(a)  a construction certificate, or

(b)  a final occupation certificate, or

(c)  a subdivision certificate,

      may appeal to the Court against a consent authority’s (or, in the case of a subdivision certificate for subdivision that is not the subject of development consent, a council’s) decision to refuse to issue such a certificate or to issue a construction certificate subject to conditions.

(2)  An appeal under this section is to be made within 12 months after the date on which the decision was made.

(3)  For the purposes only of an appeal under this section, a consent authority or council is taken to have made a decision to refuse to issue a certificate if, following an application for the certificate, it has failed to issue the certificate:

(a)  in the case of an application for a construction certificate:

(i)  if the application is made on or before the date on which its associated development application is determined, within the relevant period referred to in section 82 (1) in relation to the development the subject of the development application, or

(ii)  if the application is made after the date on which its associated development application is determined, within 28 days after the application for the construction certificate was made, or

(b)  in the case of an application for a final occupation certificate, within 14 days after the application was made, or

(c)  in the case of an application for a subdivision certificate for subdivision that does not constitute designated development:

(i)  within 14 days after the application was made, where development consent to the subdivision is required, or

(ii)  within 7 days after the application was made, where development consent to the subdivision is not required, or

(d)  in the case of an application for a subdivision certificate for subdivision that constitutes designated development:

(i)  within 14 days after the application was made, or

(ii)  within 14 days after the period in which an appeal may be made under section 98 against the granting of development consent to that development, or

(iii)  if such an appeal is made, within 14 days after the final determination of the appeal,

      whichever is the longer.

(4)  Nothing in subsection (3) prevents a consent authority or council from determining an application for a construction certificate, occupation certificate or subdivision certificate after the expiration of the relevant period prescribed by that subsection.

(5)  A determination pursuant to subsection (4) does not, subject to subsection (6), prejudice or affect the continuance or determination of an appeal made under this section in respect of a determination that is taken by subsection (3) to have been made.

(6)  If a determination pursuant to subsection (4) is made by granting the certificate concerned, the consent authority or council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal (being an appeal made under this section in respect of a determination that is taken by subsection (3) to have been made) withdrawn at any time prior to the determination of that appeal.

109L   Accredited certifiers may issue notices requiring work to be carried out

(1)  An accredited certifier who is the principal certifying authority for any development may, by notice served on a person on whom an order under section 121B may be served, direct that person to do anything that the consent authority could require that person to do by means of such an order.

(2)  A notice under this section has the same effect as a notice referred to in section 121H (1), and the provisions of Division 2A of Part 6 have effect accordingly:

(a)  subject to the accredited certifier being:

(i)  present when representations are made under section 121I, and

(ii)  entitled to make representations to the consent authority or nominated person to whom the representations under section 121I are made, and

(iii)  entitled to have the representations made by the accredited certifier heard and considered under section 121J in the same way as the representations under section 121I are heard and considered, and

(b)  subject to such other modifications as the regulations may prescribe.

(3)  Within 2 working days after the date on which an accredited certifier serves a notice under this section, the accredited certifier must send copies of the notice:

(a)  to the council, and

(b)  if the development is the subject of development consent given by a consent authority other than the council, to the consent authority, and

(c)  if the person on whom the notice is served is not the owner of the land on which the development is being carried out, to the owner of the land.

109M   Occupation and use of new building requires occupation certificate

(1)  A person must not commence occupation or use of the whole or any part of a new building (within the meaning of section 109H) unless an occupation certificate has been issued in relation to the building or part.

Maximum penalty:

(a)  in the case of a class 1a or class 10 building, as referred to in the Building Code of Australia—5 penalty units, or

(b)  in the case of any other building—1,000 penalty units.

(2)  This section does not apply to:

(a)  the occupation or use of a new building for any purpose if the erection of the building is or forms part of exempt development or development that does not otherwise require development consent, or

(b)  the occupation or use of a new building at any time after the expiration of 12 months after the date on which the building was first occupied or used, or

(c)  the occupation or use of a new building by such persons or in such circumstances as may be prescribed by the regulations, or

(d)  the occupation or use of a new building that has been erected by or on behalf of the Crown or by or on behalf of a prescribed person.

109N   Change of building use of existing building requires occupation certificate

(1)  A person must not effect a change of building use for the whole or any part of an existing building unless an occupation certificate has been issued in relation to the building or part.

Maximum penalty: 25 penalty units.

(2)  This section does not apply to:

(a)  a change of building use of an existing building if the change of building use is or forms part of exempt development or development that does not otherwise require development consent, or

(b)  the continued occupation or use of a building at any time after the expiration of 12 months after the date on which the building was first occupied or used, or

(c)  a change of building use of an existing building by such persons or in such circumstances as may be prescribed by the regulations, or

(d)  a change of building use of an existing building that has been erected by or on behalf of the Crown or by or on behalf of a prescribed person.

109O   Certifying authorities may be satisfied as to certain matters

(1)  For the purpose of enabling a Part 4A certificate or a complying development certificate to be issued by a certifying authority, the regulations may provide that any requirement for a consent authority or council to be satisfied as to any specified matter (or any matter of a specified class of matters) is taken to have been complied with if the certifying authority is satisfied as to that matter.

(2)  This section applies whether the requirement is imposed by or under:

(a)  this Act, the regulations or an environmental planning instrument, or

(b)  the terms of a development consent or complying development certificate.

109P   Satisfaction as to compliance with conditions precedent to the issue of certificates

(1)  A person who exercises functions under this Act in reliance on a Part 4A certificate or a complying development certificate is entitled to assume:

(a)  that the certificate has been duly issued, and

(b)  that all conditions precedent to the issuing of the certificate have been duly complied with, and

(c)  that all things that are stated in the certificate as existing or having been done do exist or have been done,

      and is not liable for any loss or damage arising from any matter in respect of which the certificate has been issued.

(2)  This section does not apply to an accredited certifier in relation to any Part 4A certificate or complying development certificate that he or she has issued.

109Q   Regulations under Part 4A

(1)  In addition to any other matters for or with respect to which regulations may be made for the purposes of this Part, the regulations may make provision for or with respect to the following:

(a)  the matters to be notified to a consent authority under this Part,

(b)  the records to be kept by certifying authorities under this Part.

(2)  In particular, the regulations may authorise a consent authority or council to impose a fee with respect to any Part 4A certificate that is lodged with it, whether pursuant to a requirement of this Act or the regulations or otherwise.

Part 4B

109R–109ZH(Repealed)

Part 4C Liability and insurance

Division 1 Preliminary

109ZI   Definitions

In this Part:

building action means an action (including a counter-claim) for loss or damage arising out of or concerning defective building work.

building work includes the design, inspection and issuing of a Part 4A certificate or complying development certificate in respect of building work.

subdivision action means an action (including a counter-claim) for loss or damage arising out of or concerning defective subdivision work.

subdivision work includes the design, inspection and issuing of a Part 4A certificate or complying development certificate in respect of subdivision work.

Division 2 Liability

109ZJ   (Repealed)

109ZK   Limitation on time when building action or subdivision action may be brought

(1)  Despite any Act or law to the contrary:

(a)  a building action may not be brought in relation to any building work more than 10 years after the date on which the relevant final occupation certificate is issued, and

(b)  a subdivision action may not be brought in relation to any subdivision work more than 10 years after:

(i)  in the case of work completed before the relevant subdivision certificate is issued, the date on which the relevant subdivision certificate is issued, or

(ii)  in the case of work completed after the relevant subdivision certificate is issued, the date on which the compliance certificate that certifies that the work has been completed is issued.

(2)  This section does not operate to extend any period of limitation under the Limitation Act 1969.

109ZL   Division not to affect rights to recover damages for death or personal injury

Nothing in this Division applies to or affects any right to recover damages for death or personal injury arising out of or concerning defective building work or subdivision work.

Division 3

109ZM–109ZP(Repealed)

Part 5 Environmental assessment

Division 1 Preliminary

110   Definitions

(1)  In this Part:

activity 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 prescribed by the regulations for the purposes of this definition,

      but does not include:

(g)  any act, matter or thing for which development consent under Part 4 is required or has been obtained, or

(h)  any act matter or thing that is prohibited under an environmental planning instrument, or

(i)  exempt development, or

(j)  development carried out in compliance with an order under Division 2A of Part 6, or

(k)  any development of a class or description that is prescribed by the regulations for the purposes of this definition.

approval includes:

(a)  a consent, licence or permission or any form of authorisation, and

(b)  a provision of financial accommodation by a determining authority to another person, not being a provision of such financial accommodation, or financial accommodation of such class or description, as may be prescribed for the purposes of this definition by a determining authority so prescribed.

determining authority means a Minister or public authority and, in relation to any activity, means the Minister or public authority by or on whose behalf the activity is or is to be carried out or any Minister or public authority whose approval is required in order to enable the activity to be carried out.

nominated determining authority, in relation to an activity, means the determining authority nominated by the Minister in accordance with section 110A in relation to the activity.

proponent, in relation to an activity, means the person proposing to carry out the activity, and includes any person taken to be the proponent of the activity by virtue of section 110B.

(2)  The Minister is not a determining authority in relation to an activity for the purposes of this Part merely because the Minister’s approval is required under Part 3A.

110A   Nomination of nominated determining authority

(1)  Where the approval of more than one determining authority is required in relation to an activity or an activity of a specified class or description (either in respect of the carrying out of the activity or the granting of an approval in respect of the activity), the Minister may, by order published in the Gazette and in a newspaper circulating throughout the State, nominate a determining authority to be the nominated determining authority in relation to the activity or an activity of that class or description for the purposes of this Part.

(2)  Where, under subsection (1), the Minister has nominated a determining authority to be the nominated determining authority in relation to an activity or an activity of a specified class or description, any other determining authority which would otherwise be required to comply with the provisions of this Part in relation to the activity or an activity of that class or description is not required:

(a)  to comply with section 112 (2) or (3), or

(b)  to comply with section 113,

      in relation to the activity or any activity which comes within that class or description but shall, in all other respects, comply with the relevant provisions of this Part.

(3)  A determining authority (other than the nominated determining authority) is required to forward to the nominated determining authority a copy of any submissions made to it under section 113 (2) and to provide other information to the nominated determining authority, as required by the regulations, to enable the nominated determining authority to co-ordinate the preparation and furnishing of reports in relation to the activity or activity of the specified class or description.

110B   Determining authorities taken to be proponents of activities

(1)  A proponent of an activity for the purposes of this Part is taken to include the following:

(a)  the Forestry Commission in respect of forestry activities authorised by that Commission on land under the management of that Commission,

(b)  any determining authority which the Minister certifies in writing to be the proponent of a particular activity specified in the certificate or which the regulations declare to be the proponent of activities of the kind specified in the regulations.

(2)  In any such case, a reference in this Part to a determining authority carrying out an activity includes a reference to the Forestry Commission or such a determining authority granting an approval in relation to the activity.

110C   Determining authorities to have regard to register of critical habitat

Each determining authority must, for the purpose of exercising functions under this Part, 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.

110D   Transitional—amendment of list of vulnerable species

(1)  For the purposes of Divisions 2 and 3 of this Part, an amendment to the list of vulnerable species does not apply in respect of an activity if:

(a)  an environmental impact statement was obtained in relation to that activity in accordance with this Part before the amendment was made, and

(b)  notice of the environmental impact statement has been given as provided for by section 113 (1).

(2)  Subsection (1) ceases to apply in respect of an activity if the activity has not commenced to be carried out, or an approval in relation to the activity has not been granted, by a determining authority at the end of the period of 12 months after the date the notice of the environmental impact statement was given under section 113 (1).

(3), (4)  (Repealed)

(5)  In this section:

list of vulnerable species means Part 1 of Schedule 2 to the Threatened Species Conservation Act 1995 or, subject to section 5C, Schedule 5 to the Fisheries Management Act 1994.

110E   Exemptions for certain activities

Sections 111 and 112 do not apply to or in respect of the following (despite the terms of those sections):

(a)  a modification of an activity, whose environmental impact has already been considered, that will reduce its overall environmental impact,

(b)  a routine activity (such as the maintenance of infrastructure) that the Minister determines has a low environmental impact and that is carried out in accordance with a code approved by the Minister,

(c)  an activity (or part of an activity) that has been approved, or is to be carried out, by another determining authority after environmental assessment in accordance with this Part.

Division 2 Duty of determining authorities to consider environmental impact of activities

111   Duty to consider environmental impact

(1)  For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.

(2)  Without limiting subsection (1), a determining authority shall consider the effect of an activity on:

(a)  any conservation agreement entered into under the National Parks and Wildlife Act 1974 and applying to the whole or part of the land to which the activity relates, and

(b)  any plan of management adopted under that Act for the conservation area to which the agreement relates, and

(c)  any joint management agreement entered into under the Threatened Species Conservation Act 1995, and

(d)  any biobanking agreement entered into under Part 7A of the Threatened Species Conservation Act 1995 that applies to the whole or part of the land to which the activity relates.

(3)  Without limiting subsection (1), a determining authority shall consider the effect of an activity on any wilderness area (within the meaning of the Wilderness Act 1987) in the locality in which the activity is intended to be carried on.

(4)  Without limiting subsection (1), a determining authority must consider the effect of an activity on:

(a)  critical habitat, and

(b)  in the case of threatened species, populations and ecological communities, and their habitats, whether there is likely to be a significant effect on those species, populations or ecological communities, or those habitats, and

(c)  any other protected fauna or protected native plants within the meaning of the National Parks and Wildlife Act 1974.

Note. If a biobanking statement has been issued in respect of a development under Part 7A of the Threatened Species Conservation Act 1995, the determining authority is not required to consider the impact of the activity on biodiversity values.

111A   (Repealed)

Division 3 Activities for which EIS required

112   Decision of determining authority in relation to certain activities

(1)  A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, unless:

(a)  the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity:

(i)  prepared in the prescribed form and manner by or on behalf of the proponent, and

(ii)  except where the proponent is the determining authority, submitted to the determining authority in the prescribed manner,

(b)  notice referred to in section 113 (1) has been duly given by the determining authority (or, where a nominated determining authority has been nominated in relation to the activity, by the nominated determining authority), the period specified in the notice has expired and the determining authority has examined and considered any representations made to it or any other determining authority in accordance with section 113 (2),

(c)  the determining authority has complied with section 113 (3),

(c1)  (Repealed)

(d)  where it receives notice from the Director-General that the Minister has directed that an inquiry be held in accordance with section 119 with respect to the activity, the inquiry has been held and the determining authority has considered the findings and recommendations of the Commission of Inquiry and any advice given to it by the Minister in accordance with section 114, and

(e)  where it receives notice from the Director-General that the Director-General has decided that an examination be undertaken in accordance with section 113 (5), that examination has been carried out and the determining authority has considered the report furnished to it in accordance with that subsection.

(1A)  A determining authority shall not grant an approval in relation to an activity referred to in subsection (1) that is to be carried out 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 activity required under that Act has been obtained.

(1B)  Without limiting subsection (1), a determining authority must not carry out an activity, or grant an approval in relation to an activity, being an activity that is in respect of 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, unless a species impact statement, or an environmental impact statement that includes a species impact statement, has been prepared (in each case) in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.

(1C)  An environmental impact statement is not required (despite subsection (1) (a)) in respect of an activity that:

(a)  is on land that is, or is part of, critical habitat, or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, and

(b)  is not likely to significantly affect the environment except as described in paragraph (a),

      if the determining authority has obtained or been furnished with a species impact statement in respect of the activity, prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995. However, the provisions of this Part relating to environmental impact statements (other than subsection (1) (a) (i)) apply to the species impact statement as if references to an environmental impact statement included a reference to the species impact statement.

Note. If a biobanking statement has been issued in respect of the activity under Part 7A of the Threatened Species Conservation Act 1995, the activity is taken not to significantly affect threatened species, populations or ecological communities, or their habitats.

(1D)  (Repealed)

(2)  The determining authority or nominated determining authority, as the case requires, shall, as soon as practicable after an environmental impact statement is obtained by or furnished to it, as referred to in subsection (1), but before giving notice under section 113 (1), furnish to the Director-General a copy of the statement.

(3)  A determining authority or nominated determining authority, as the case requires, shall furnish such number of additional copies of an environmental impact statement to the Director-General as the Director-General may request.

(4)  Before carrying out an activity referred to in subsection (1) or in determining whether to grant an approval in relation to such an activity, a determining authority which is satisfied that the activity will detrimentally affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats:

(a)  may, except where it is the proponent of the activity:

(i)  impose such conditions or require such modifications as will in its opinion eliminate or reduce the detrimental effect of the activity on the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, or

(ii)  disapprove of the activity, or

(b)  may, where it is the proponent of the activity:

(i)  modify the proposed activity so as to eliminate or reduce the detrimental effect of the activity on the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, or

(ii)  refrain from undertaking the activity.

(5)  Where a determining authority, not being the proponent of an activity, imposes conditions as referred to in subsection (4) (a) (i) or disapproves of an activity as referred to in subsection (4) (a) (ii), the determining authority shall, by notice in writing to the proponent, indicate the reasons for the imposition of the conditions or for disapproving of the activity.

(6)  The provisions of subsection (4) have effect notwithstanding any other provisions of this Act (other than Part 3A) or the provisions of any other Act or of any instrument made under this or any other Act.

(6A)  (Repealed)

(7)  Where a nominated determining authority has been nominated in relation to an activity, no other determining authority which may grant an approval in relation to the activity shall be concerned to inquire whether or not the nominated determining authority has complied with this section or section 113.

112A   Determining authorities to have regard to recovery plans and threat abatement plans

A determining authority, in considering a species impact statement, must have regard to the terms of any recovery plan or threat abatement plan relating to the land referred to in the species impact statement for the purposes of assessing any effect on a threatened species, population or ecological community, or its habitat.

112B   Consultation with Minister for the Environment if Minister is determining authority

(1)  A Minister who is a determining authority must not carry out, or grant an approval to carry out, an activity in respect of 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, unless that Minister has consulted with the Minister administering the Threatened Species Conservation Act 1995.

(2)  In so consulting, the Minister administering the Threatened Species Conservation Act 1995 must provide the Minister who is the determining authority with any recommendations made by the Director-General of National Parks and Wildlife concerning the determination of the activity. If that Minister does not accept any one or more of the recommendations, that Minister must include the recommendations not accepted and the Minister’s reasons for not accepting them in the determination.

112C   Concurrence of or consultation with Director-General of National Parks and Wildlife if Minister is not determining authority

(1)  A determining authority (not being a Minister) must not carry out, or grant an approval to carry out, an activity:

(a)  that is to be carried out in respect of land that is, or is part of, critical habitat, or

(b)  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.

(2)  Despite subsection (1), if the Minister administering the Threatened Species Conservation Act 1995 considers that it is appropriate, that Minister may elect to act in the place of the Director-General of National Parks and Wildlife for the purpose of that subsection. However, if the Minister so elects, the Minister must:

(a)  consult the Director-General of National Parks and Wildlife and seek that Director-General’s recommendations in respect of the proposed activity, and

(b)  if the Minister does not accept any one or more of those recommendations—specify, in the determination as to the grant or refusal to grant concurrence under this section, the recommendations that were not accepted and the Minister’s reasons for not accepting them.

(3)  Section 79B (8), (9) and (11) and the prescribed provisions of the regulations apply (with such modifications as may be necessary) to and in respect of the granting of concurrence under this section in the same way as they apply to and in respect of the granting of concurrence required by an environmental planning instrument.

(4)  The Director-General of National Parks and Wildlife or, in a case where the Minister administering the Threatened Species Conservation Act 1995 has elected to act in the place of the Director-General, the Minister may, on the request of a determining authority that proposes to carry out or grant an approval to carry out an activity referred to in subsection (1), modify a concurrence granted under this section by:

(a)  revoking or varying a condition of the concurrence, or

(b)  imposing an additional condition on the concurrence.

112D   Matters to be considered by Director-General of National Parks and Wildlife as concurrence authority

(1)  In deciding whether or not concurrence should be granted under section 112C, the Director-General of National Parks and Wildlife (or the Minister administering the Threatened Species Conservation Act 1995, if that Minister acts under that section) must take the following matters into consideration:

(a)  any species impact statement prepared in relation to the activity,

(b)  any assessment report prepared by or on behalf of the proponent,

(c)  any representations made under section 113 concerning the species impact statement,

(d)  any relevant recovery plan or threat abatement plan,

(e)  whether the activity is likely to reduce the long-term viability of the species, population or ecological community in the region,

(f)  whether the activity 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.

(2)  Before the Director-General of National Parks and Wildlife or the Minister administering the Threatened Species Conservation Act 1995 decides to modify a concurrence in respect of an activity under section 112C he or she must:

(a)  give notice of the proposed decision to any person who made representations under section 113 concerning the species impact statement in respect of the activity, and

(b)  provide the person with an opportunity to make submissions with respect to the proposed decision within a period specified in the notice (being a period of not less than 28 days after the date of the notice), and

(c)  have regard to any submissions made to him or her in accordance with the notice within the period so specified.

112E   Matters to be considered by Minister or Director-General of National Parks and Wildlife when consulted

The Minister administering the Threatened Species Conservation Act 1995 (for the purposes of consultation under section 112B) or the Director-General of National Parks and Wildlife (for the purposes of consultation under section 112C) (or the Minister administering the Threatened Species Conservation Act 1995, if that Minister acts under that section) must take the following matters into consideration:

(a)  any species impact statement prepared in relation to the activity,

(b)  any assessment report prepared by or on behalf of the proponent,

(c)  any representations made under section 113 concerning the species impact statement,

(d)  whether the activity is likely to reduce the long-term viability of the species in the region,

(e)  whether the activity is likely to place the species at risk of becoming endangered as described in section 10 of the Threatened Species Conservation Act 1995,

(f)  the principles of ecologically sustainable development,

(g)  the likely social and economic consequences if the activity is not carried out.

113   Publicity and examination of environmental impact statements

(1)  A determining authority shall give notice in the prescribed form and manner that a copy of an environmental impact statement prepared by or submitted to it, as referred to in section 112 (1), may be inspected at:

(a)  the office of the determining authority and the Department at any time during ordinary office hours, and

(b)  such other premises operated or controlled by them respectively and at such times as may be prescribed,

      within such period, being not less than 30 days after the day on which the notice is given, as may be specified in the notice.

(2)  Any person may, during the period specified in the notice, inspect the environmental impact statement (except any part thereof the publication of which would, in the opinion of the determining authority, be contrary to the public interest by reason of its confidential nature or for any other reason) and may within that period make submissions in writing to the determining authority with respect to the activity to which the environmental impact statement relates.

(3)  A determining authority shall, as soon as practicable and not less than 21 days before carrying out an activity or granting an approval in relation to an activity, being an activity referred to in section 112 (1), furnish to the Director-General a copy of any submissions made to it under subsection (2) with respect to the activity.

(3A)  The determining authority must, at that time, also forward copies of those submissions to the Environment Protection Authority if the activity is a scheduled activity under the Protection of the Environment Operations Act 1997.

(4)  A proponent not entitled to copyright in an environmental impact statement referred to in section 112 (1) shall be deemed to have indemnified all persons using the environmental impact statement for the purposes of this Part against any claim or action in respect of a breach of copyright in the statement.

(5)  Except where the Minister has directed that an inquiry be held in accordance with section 119, the Director-General may examine or cause to be examined in the Department an environmental impact statement furnished in accordance with section 112 (2) and any submissions made with respect to the activity to which the statement relates under subsection (2) and shall forward, as soon as practicable to the relevant determining authority, a report containing the findings of that examination together with any recommendations arising therefrom.

(6)  After the report referred to in subsection (5) has been forwarded to the determining authority, the Director-General shall make public that report.

(7)  Any public authority or body to which an appeal may be made by or under any Act in relation to the activity the subject of an examination carried out under subsection (5) shall, in deciding the appeal, consider and take into account the report forwarded to the determining authority under that subsection.

(8)  In this section, environmental impact statement includes a fauna impact statement and a species impact statement.

114   Consideration of findings and recommendations of Commission of Inquiry

Where the Minister has directed that an inquiry be held, in accordance with section 119, with respect to any activity referred to in section 112 (1):

(a)  the Minister shall consider the findings and recommendations of the Commission of Inquiry and forward to the relevant determining authority (whether or not that determining authority is the nominated determining authority) a copy of the findings and recommendations and may give advice to the authority as to whether, in the Minister’s opinion:

(i)  there are no environmental grounds which would preclude the carrying out of the activity to which the findings and recommendations relate in accordance with the proponent’s proposal,

(ii)  there are no environmental grounds which would preclude the carrying out of the activity subject to its being modified in the manner specified in the advice,

(iii)  there are no environmental grounds which would preclude the carrying out of the activity subject to the observance of conditions specified in the advice, or

(iv)  there are environmental grounds which would preclude the carrying out of the activity, and

(b)  any public authority or body to which an appeal may be made by or under any Act in relation to the activity shall, in deciding the appeal, consider and take into account the findings and recommendations of the Commission of Inquiry and any such advice given by the Minister.

115   Regulations

The regulations may make provision for or with respect to:

(a)  the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment,

(b)  the preparation, contents, form and submission of environmental impact statements,

(c)  the making of environmental impact statements available for public comment, or

(d)  the methods of examination of environmental impact statements and submissions made with respect to activities to which any such statements relate.

Division 4

115A–115F(Repealed)

Division 5 Environmental assessment of fishing activities

115G   Definitions

In this Division:

designated fishing activity means a fishing activity to which this Division applies as provided by section 115I.

fish, fishery, fishing activity and share management fishery have the respective meanings given in the Fisheries Management Act 1994.

fisheries approval means a licence, endorsement or permit, of any kind, issued or renewed under the Fisheries Management Act 1994 or the regulations under that Act.

Fisheries Minister means the Minister administering the Fisheries Management Act 1994.

fishery management strategy means a fishery management strategy for a designated fishing activity under Part 1A of the Fisheries Management Act 1994.

fishing regulatory controls means the provisions of the following instruments that regulate, prohibit or authorise fishing activities:

(a)  the Fisheries Management Act 1994 and the regulations under that Act,

(b)  management plans under the Fisheries Management Act 1994,

(c)  fishing closures under section 8 of the Fisheries Management Act 1994,

(d)  fisheries approvals,

(e)  determinations of the TAC Committee under Division 4 of Part 2 of the Fisheries Management Act 1994,

(f)  policies approved by the Fisheries Minister with respect to the administration of the Fisheries Management Act 1994 and the regulations under that Act,

(g)  any relevant environmental planning instrument referred to in section 115R (5),

(h)  Ministerial orders and interim orders made under Subdivision 1A of Division 6 of Part 7A of the Fisheries Management Act 1994.

proponent of a fishing activity means:

(a)  in the case of a share management fishery—the holders of shares in the fishery or, if shares have not yet been issued on a provisional or permanent basis, the persons who are entitled to be allocated shares in the fishery, or

(b)  in the case of any other fishery—the fishers or other persons who carry out, or propose to carry out, the fishing activity.

115H   Principles guiding administration of Division

The administration of this Division is to be guided by the following principles:

(a)  the principles of ecologically sustainable development,

(b)  public participation in accordance with this Division,

(c)  environmental impact assessment in accordance with this Division.

115I   Application of Division to designated fishing activities

(1)  This Division applies to designated fishing activities described in Schedule 1A to the Fisheries Management Act 1994.

(2)  This Division extends to the following activities (but only if the activity is such a designated fishing activity):

(a)  the stocking of waters with fish,

(b)  the placing of nets around beaches or other waters to protect the public from sharks,

(c)  the harvesting of marine vegetation.

For that purpose, a reference in this Division to a fishing activity or fishery includes a reference to any such activity.

(3)  This Division does not apply to aquaculture within the meaning of the Fisheries Management Act 1994.

115J   Designated fishing activities to be assessed under this Division

(1)  Environmental assessments of designated fishing activities are to be undertaken in accordance with this Division.

(2)  A draft fishery management strategy is required for a designated fishing activity that is the subject of such an environmental assessment.

Note. Section 7E of the Fisheries Management Act 1994 deals with the contents of such a strategy (including the incorporation of the relevant management plan).

(3)  The environmental assessment is to be undertaken on the basis of the activity described in the draft strategy.

(4)  The environmental assessment is to assess the likely cumulative environmental impact of the designated fishing activity carried out by all the proponents as authorised by the applicable fishing regulatory controls described in the draft strategy.

115K   Environmental impact statements to be prepared

(1)  An environmental impact statement in respect of a designated fishing activity must be prepared for the purposes of an environmental assessment under this Division.

(2)  An environmental impact statement is required even if it would not be required under Division 3 if that Division applied to the carrying out of the designated fishing activity.

(3)  An environmental impact statement is to be prepared in accordance with the requirements of Division 3, and the regulations under that Division, relating to the preparation of such statements.

(4)  The Fisheries Minister is to make arrangements for the preparation of an environmental impact statement, including engaging a person to be responsible for the preparation of the statement.

(5)  The Fisheries Minister may, under those arrangements, require the proponents of the designated fishing activity to provide information or carry out investigations for the statement and to contribute to the cost of the preparation of the statement.

(6)  As soon as practicable after an environmental impact statement has been prepared and before public notice is given under section 115L, the Fisheries Minister is to give a copy of the statement to the Director-General.

115L   Publicity and examination of environmental impact statements

(1)  The Fisheries Minister must give public notice of the preparation of an environmental impact statement under this Division and make a copy of the statement available for public inspection in accordance with the requirements for environmental impact statements made by section 113.

(2)  A copy of the relevant draft fishery management strategy is to accompany any copy of the environmental impact statement that is made available for public inspection in accordance with this section.

(3)  Any person may, during the period specified in the public notice under subsection (1), inspect the environmental impact statement and may, within that period, make representations in writing to the Fisheries Minister with respect to the designated fishing activity to which the statement relates.

(4)  Copies of all such representations received by the Fisheries Minister are to be provided, as soon as practicable, to the Director-General.

(5)  The Director-General may, unless an inquiry has been directed under section 115M:

(a)  examine or cause to be examined in the Department the environmental impact statement and any relevant representations, and

(b)  forward to the Fisheries Minister, as soon as practicable, a report containing the findings of that examination together with any recommendations arising from that examination.

The Director-General must make that report public.

(6)  If the Director-General notifies the Fisheries Minister that the environmental impact statement and representations are to be examined in the Department, the Fisheries Minister must not make a determination under section 115O with respect to the designated fishing activity until the report of the Director-General has been forwarded to the Fisheries Minister.

115M   Public inquiry into designated fishing activity

(1)  The Minister administering this Act may direct an inquiry under section 119 with respect to all or any of the environmental aspects of a designated fishing activity the subject of an environmental impact statement prepared under this Division.

(2)  The Minister administering this Act is to consider the findings and recommendations of the Commission of Inquiry that has conducted the inquiry and forward to the Fisheries Minister a copy of the findings and recommendations (together with any advice on whether there are environmental grounds on which the activity should be permitted, modified or prevented).

(3)  If the Minister administering this Act notifies the Fisheries Minister that an inquiry is to be conducted, the Fisheries Minister must not make a determination under section 115O with respect to the designated fishing activity until the findings and recommendations (and any advice) have been forwarded to the Fisheries Minister.

115N   Special provisions relating to threatened species conservation

(1)  An environmental assessment under this Division of a designated fishing activity is to include an assessment of the effect or likely effect on the following:

(a)  critical habitat,

(b)  threatened species, populations and ecological communities and their habitats.

(2)  An environmental impact statement under this Division must include a species impact statement if the designated fishing activity is to be carried out in critical habitat or is likely to significantly affect threatened species, populations or ecological communities or their habitats.

(2A)  However, despite subsection (2), a species impact statement is not required in relation to threatened species, populations or ecological communities or their habitats, if:

(a)  the designated fishing activity subject to the environmental assessment is an activity authorised by a Ministerial order made under Subdivision 1A of Division 6 of Part 7A of the Fisheries Management Act 1994, and

(b)  the species impact statement prepared under section 221IC of the Fisheries Management Act 1994 in relation to that order includes an assessment of the likely effect of the activity on those threatened species, populations or ecological communities or their habitats.

(3)  The Fisheries Minister, in considering a species impact statement under this Division, must have regard to the terms of any recovery plans or threat abatement plans relating to the area to which the statement applies for the purpose of assessing any effect on a threatened species, population or ecological community, or its habitat.

(4)  The Fisheries Minister must not make a determination under section 115O with respect to a designated fishing activity that is to be carried out in critical habitat or is likely to significantly affect threatened species, populations or ecological communities or their habitats unless the Minister has consulted the Minister administering the Threatened Species Conservation Act 1995. This subsection does not apply if the critical habitat or the threatened species, population or ecological community relate to fish or marine vegetation.

(5)  In consulting under subsection (4), the Minister administering the Threatened Species Conservation Act 1995 must provide the Fisheries Minister with any recommendations made by the Director-General of National Parks and Wildlife concerning the determination with respect to the designated fishing activity. The Fisheries Minister must include any recommendations not accepted by the Fisheries Minister (and the reasons for not accepting them) in the public report of the Fisheries Minister’s determination.

(6)  The Minister administering the Threatened Species Conservation Act 1995 (for the purposes of consultation under subsection (4)) must take into consideration the matters referred to in section 112E of this Act.

Note. This section incorporates the relevant obligations under Division 3 with respect to threatened species conservation.

115O   Determination with respect to environmental assessment

(1)  The Fisheries Minister is to make a determination with respect to the designated fishing activity the subject of an environmental impact statement for the purpose of attaining the objects of this Act relating to the protection and the enhancement of the environment and the objects of the Fisheries Management Act 1994.

(2)  When making the determination, the Fisheries Minister is to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the designated fishing activity (including the effect of the activity on the matters referred to in section 111 (2)–(4)).

Note. The duty of the Fisheries Minister under this section is in similar terms to the duty imposed on determining authorities by section 111 to consider the environmental impact of activities.

(3)  The Fisheries Minister is to consider:

(a)  the environmental impact statement and the representations duly received by the Fisheries Minister with respect to the designated fishing activity to which the statement relates, and

(b)  any report on the statement and recommendations of the Director-General that are forwarded to the Fisheries Minister under section 115L, and

(c)  any findings and recommendations of a Commission of Inquiry and advice of the Minister administering this Act that are forwarded to the Fisheries Minister under section 115M, and

(d)  the matters required to be considered under section 115N relating to threatened species conservation.

(4)  The Fisheries Minister may make any of the following determinations:

(a)  a determination to permit the designated fishing activity to be carried out,

(b)  a determination to permit the designated fishing activity to be carried out subject to such modifications as will in the Fisheries Minister’s opinion eliminate or reduce the detrimental effect of the activity on the environment,

(c)  a determination to prevent the carrying out of the designated fishing activity or any part of the activity.

The Fisheries Minister must make the determination public as soon as practicable after it is made.

Note. This subsection is in similar terms to section 112 (4) with respect to the actions of a determining authority once it has obtained and considered an environmental impact statement on an activity that is likely to significantly affect the environment. Section 7F of the Fisheries Management Act 1994 requires the Fisheries Minister to revise the relevant draft fishery management strategy (and publish the approved strategy) so as to reflect the result of the determination.

(5)  If the approval of the Minister administering this Act is required under section 115P for a determination under this section, the Fisheries Minister is to make a preliminary determination before seeking approval under that section. A determination is not made under this section until a final determination is made in accordance with section 115P.

(6)  When giving effect to a determination, the Fisheries Minister is to comply with the applicable provisions of the Fisheries Management Act 1994 and the regulations under that Act.

(7)  A determination under this section does not prevent the imposition from time to time of new fishing regulatory controls applicable to a designated fishing activity, or changes from time to time to those controls.

Note. See also section 115R (3) which only excludes a fishing approval from the requirement for individual environmental assessment under this Part if it is issued or renewed in accordance with the determination of the environmental assessment under this section.

115P   Approval of Minister administering this Act required for designated fishing activity where Fisheries Minister is or is declared to be proponent

(1)  This section applies to:

(a)  any designated fishing activity of which the Fisheries Minister is the proponent, and

(b)  any other designated fishing activity in respect of which the Fisheries Minister is declared to be the proponent by the Minister administering this Act by order published in the Gazette:

(i)  with the approval of the Fisheries Minister, or

(ii)  if there is a dispute between the Minister administering this Act and the Fisheries Minister, with the approval of the Premier.

(2)  The Fisheries Minister is not to make a final determination under section 115O with respect to a designated fishing activity to which this section applies without the approval of the Minister administering this Act. If the approval is subject to conditions, the final determination must accord with those conditions.

(3)  The regulations may make provisions for or with respect to approvals under this section of the Minister administering this Act.

115Q   Re-assessment of designated fishing activity

(1)  A further environmental assessment of a designated fishing activity is to be undertaken under this Division if:

(a)  a review of the relevant fishery management strategy is indicated by the strategy because the specified performance indicators are not being met, and

(b)  the review results in proposed changes to the strategy, and

(c)  the proposed changes to fishing regulatory controls are likely, in the opinion of the Fisheries Minister, to significantly affect the environment (including threatened species, populations or ecological communities or their habitats).

(2)  A further environmental assessment may be limited to an assessment that relates to the proposed changes to fishing regulatory controls.

115R   Application of other provisions of this Act

(1)  The provisions of this Part (other than this Division) do not apply to or in respect of a designated fishing activity.

(2)  Despite subsection (1), those provisions apply to a designated fishing activity if the Fisheries Minister has not made a determination with respect to the activity under this Division before:

(a)  1 July 2003, except as provided by paragraph (b), or

(b)  a later date prescribed by the regulations for the purposes of that fishing activity.

In that case, those provisions cease to apply if the determination is made after that date.

(3)  Despite subsection (1), those provisions apply to a fisheries approval that relates to a designated fishing activity if:

(a)  until a determination is made by the Fisheries Minister with respect to the activity under section 115O—the fisheries approval does not authorise commercial fishing activities and is granted or renewed for a period exceeding 12 months, or

(b)  after such a determination is made—the fisheries approval is not granted or renewed in accordance with the determination.

(3A)  A designated fishing activity cannot be declared to be a project to which Part 3A applies.

(4)  A designated fishing activity cannot be made subject to a requirement for development consent under Part 4.

(5)  An environmental planning instrument cannot prohibit or otherwise regulate a designated fishing activity (or any part of such an activity) unless the Fisheries Minister has approved those provisions before the instrument is made.

115S   Transitional—amendment to list of vulnerable species

(1)  An amendment to the list of vulnerable species does not apply in respect of a designated fishing activity if:

(a)  an environmental impact statement was prepared in relation to that activity in accordance with this Part before the amendment was made, and

(b)  notice of the environmental impact statement has been given as provided for by section 115L.

(2)  Subsection (1) ceases to apply in respect of a designated fishing activity if a determination under section 115O has not been made in respect of the activity at the end of the period of 12 months after the date the notice of the environmental impact statement was given under section 115L.

(3)  In this section:

list of vulnerable species means Part 1 of Schedule 2 to the Threatened Species Conservation Act 1995 or, subject to section 5C, Schedule 5 to the Fisheries Management Act 1994.

Part 5A Development by the Crown

116A   Relationship between Parts 4 and 5A

Part 4 applies to development to which this Part applies but this Part prevails over Part 4 to the extent of any inconsistency between this Part and Part 4.

116B   References to the Crown

A reference in a provision of this Part to the Crown:

(a)  includes a reference to a person who is prescribed by the regulations to be the Crown for the purposes of the provision, 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 the provision, or

(ii)  a person who is prescribed by the regulations not to be the Crown for the purposes of the provision.

116C   Determination of Crown development applications

A consent authority, in respect of a development application made by or on behalf of the Crown, must not:

(a)  refuse its consent to the application, except with the written approval of the Minister, or

(b)  impose a condition of its consent, except with the written approval of the Minister or the applicant.

116D   Reference of undetermined applications to Minister

(1)  The applicant or the consent authority may refer the development application to the Minister if it has not been determined by the consent authority within 40 days after being lodged with the consent authority.

(2)  The party who refers the application to the Minister must notify the other party in writing that the application has been referred.

(3)  When an application is referred to the Minister by either party, the consent authority must, as soon as practicable after the application is referred, submit to 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.

(4)  The Minister is required to notify the Director-General in writing that the application has been referred.

116E   Negotiating determination of development application

(1)  On being notified of the reference of a development application, the Director-General must convene a meeting between the consent authority and the applicant for the purpose of negotiating, as far as possible, a determination of the development application that is acceptable to them and that is in accordance with this Act.

(2)  If agreement is reached between the consent authority and the applicant that development consent be granted, unconditionally or subject to conditions, the Director-General must prepare a report of the agreement. The report:

(a)  may include any recommendations that may be necessary or desirable to ensure the implementation of the agreement, and

(b)  must specify the date by which consent is to be granted.

The Director-General must give a copy of the report to the consent authority and the applicant.

(3)  After receiving the Director-General’s report, the consent authority must determine the application by granting consent in accordance with the report and recommendations and must do so on or before the date specified for the purpose in the report. Such a consent is taken to have been granted in accordance with the written approval of the Minister.

(4)  If agreement is not reached between the consent authority and the applicant that development consent be granted, unconditionally or subject to conditions, the Minister must notify the consent authority and the applicant in writing of:

(a)  the Minister’s approval to the refusal of consent, or

(b)  the Minister’s approval to the imposition of the consent authority’s proposed conditions and the date on or before which the development application must be determined, or

(c)  the Minister’s intention not to agree with the consent authority’s proposed refusal and that the consent authority may submit any conditions it wishes to impose as conditions of consent to the Minister within 21 days after the date of the Minister’s notification, or

(d)  the Minister’s refusal to agree with the consent authority’s proposed conditions, any conditions that may be imposed with the Minister’s approval and the date on or before which the development application must be determined.

(5)  At the end of the 21-day period specified in subsection (4) (c), the Minister must notify the consent authority and the applicant in writing:

(a)  whether the Minister approves of the imposition of any of the conditions submitted by the consent authority during that period and, if so, which conditions, or

(b)  of the conditions that may be imposed with the Minister’s approval,

      or both, and that the consent authority must determine the application in accordance with the Minister’s notification on or before the date notified by the Minister for the purpose.

(6)  The Minister must notify the consent authority and the applicant in writing of the reasons for a decision under subsection (4) or (5).

(7)  If the consent authority does not determine the application on or before the date specified in the Director-General’s report under subsection (2), or on or before the date notified for the purpose by the Minister under subsection (4) (b) or (d) or subsection (5), the consent authority is taken, on the date so specified or notified, to have determined the application:

(a)  in the case of a report under subsection (2)—by granting consent in accordance with the report and recommendations, or

(b)  in the case of a notification under subsection (4) (b) or (d)—by granting consent subject to the conditions that may be imposed with the Minister’s approval, or

(c)  in the case of a notification under subsection (5)—in accordance with the Minister’s approval as notified to it.

116F   Modification of Crown development consents

This Part applies to an application by or on behalf of the Crown under section 96 in the same way as it applies to an application for development consent.

116G   Building, demolition and incidental work

(1)  In this section:

Crown building work means development (other than exempt development), or an activity within the meaning of Part 5, by the Crown that comprises:

(a)  the erection of a building, or

(b)  the demolition of a building or work, or

(c)  the doing of anything that is incidental to the erection of a building or the demolition of a building or work.

technical provisions of the State’s building laws means those provisions of:

(a)  the regulations, or

(b)  a publication, the provisions of which have been applied, adopted or incorporated by the regulations,

      that are prescribed by the regulations to be technical provisions of the State’s building laws for the purposes of this section.

(2)  Crown building work cannot be commenced to be carried out unless the Crown building work is certified by or on behalf of the Crown to comply with the technical provisions of the State’s building laws in force as at:

(a)  the date of the invitation for tenders to carry out the Crown building work, or

(b)  in the absence of tenders, the date on which the carrying out of the Crown building work commences, except as provided by this section.

(3)  A Minister, by order in writing, may at any time determine in relation to buildings generally or a specified building or buildings of a specified class that a specified technical provision of the State’s building laws:

(a)  does not apply, or

(b)  does apply, but with such exceptions and modifications as may be specified.

(4)  A determination of a Minister applies only to:

(a)  a building erected on behalf of the Minister, or

(b)  a building erected by or on behalf of a person appointed, constituted or regulated by or under an Act administered by the Minister.

(5)  A determination of a Minister has effect according to its tenor.

(6)  (Repealed)

116H   Applicant’s rights of appeal

This Part does not affect the right of an applicant to appeal under section 96 (6) or 97.

Part 6 Implementation and enforcement

Division 1 General

116   (Repealed)

117   Directions by the Minister

(1)  The Minister may direct a public authority or person having functions under this Act or an environmental planning instrument to exercise those functions at or within such times as are specified in the direction.

(2)  In addition to any direction which may be given under subsection (1), the Minister may direct a council:

(a)  to exercise its functions under Division 4 or 5 of Part 3 in relation to the preparation of a draft local environmental plan in accordance with such principles, not inconsistent with this Act, as are specified in the direction, and

(b)  without limiting paragraph (a), to include in a draft local environmental plan prepared by the council provisions which will achieve or give effect to such principles or such aims, objectives or policies, not inconsistent with this Act, as are specified in the direction, and

(c)  to provide the Minister, in the manner and at the times specified in the direction, with reports, containing such information as the Minister may direct, on the council’s performance in relation to planning and development matters.

(2A)  A direction under subsection (2):

(a)  may be given to a particular council or to councils generally, and

(b)  may require the inclusion in draft plans of provisions to achieve or give effect to particular principles, aims, objectives or policies, and

(c)  may require draft plans to be strictly consistent or substantially consistent with the terms of the direction (or provide for the circumstances in which an inconsistency can be justified).

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

(3)  A public authority or person to whom a direction is given under subsection (1) or (2) shall comply, and is hereby empowered to comply, with the direction in accordance with the terms of the direction.

(4)  Before giving a direction under subsection (1) or (2), the Minister shall consult with the responsible Minister concerned.

(4A)  Before giving a direction under subsection (2) (c), the Minister is to consult with the Local Government and Shires Associations of New South Wales and any other industry organisation the Minister considers to be relevant, in relation to the information that the Minister is proposing to seek. This requirement is in addition to the requirement under subsection (4).

(5)  A local environmental plan (or any draft or purported plan) cannot in any court proceedings be challenged, reviewed, called into question, prevented from being made or otherwise affected on the basis of anything in a direction under subsection (1) or (2).

117A   Inquiry into councils by Director-General of Department of Local Government

(1)  The Director-General of the Department of Infrastructure, Planning and Natural Resources may request the Director-General of the Department of Local Government to authorise an investigation under section 430 of the Local Government Act 1993 into any aspect of a council’s performance of its functions under this Act that requires investigation.

(2)  The Director-General of the Department of Local Government is to provide the Director-General of the Department of Infrastructure, Planning and Natural Resources with advice on the outcome of any such request or investigation.

117B   (Repealed)

Division 1AA Planning administrators and panels

117C   Definitions

In this Division:

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

planning administrator means a person appointed as a planning administrator under section 118.

118   Appointment of planning administrator or panel

(1)  The Minister may appoint a planning administrator or a panel (or both) to exercise functions of a council if:

(a)  the Minister is of the opinion that the council has failed to comply with its obligations under the planning legislation, or

(b)  the Minister is of the opinion that the performance of a council in dealing with planning and development matters (or any particular class of such matters) is unsatisfactory because of the manner in which the council has dealt with those matters, the time taken or in any other respect, or

(c)  the council agrees to the appointment, or

(d)  a report referred to in section 74C of the Independent Commission Against Corruption Act 1988 recommends that consideration be given to the appointment because of serious corrupt conduct by any of the councillors in connection with the exercise or purported exercise of functions conferred or imposed on the council by or under this Act.

(2)  A planning administrator may be appointed to exercise all or any particular function or class of functions of the council under this Act.

(3)  A panel may be appointed to exercise only all or any particular function or class of functions of the council:

(a)  as a consent authority under Part 4, or

(b)  in relation to making of environmental planning instruments under Part 3.

(4)  A panel may not exercise the functions of a council for a continuous period of more than 5 years.

(5)  If a panel exercises the functions of a council for a continuous period of more than 2 years, the Minister is, as soon as practicable after 2 years after the date on which the panel was appointed, to conduct a review of the appointment and functions of the panel.

(6)  A review under subsection (5) is to be conducted by the Minister in consultation with the Minister for Local Government, the Local Government and Shires Associations of New South Wales and any other industry organisation that the Minister considers to be relevant.

(7)  A planning administrator or panel is to be appointed by order of the Minister published in the Gazette.

(8)  Before appointing a planning administrator or panel, the Minister is to obtain the concurrence of the Minister for Local Government.

(9)  The Minister may appoint a planning administrator or a panel for a reason set out in subsection (1) (b) only if the Minister has, by order published in the Gazette, provided heads of consideration for the exercise of power under subsection (1) (b), and has taken those heads of consideration into account.

(10)  The Minister may make an appointment under subsection (1) (d) without conducting an inquiry but, in that case, the Minister is to inquire into the matter as soon as practicable with a view to confirming or revoking the appointment.

(11)  The Minister must, as soon as reasonably practicable after appointing a planning administrator or a panel, make the reasons for that appointment publicly available.

(12)  In this section:

failure to comply with obligations under the planning legislation includes:

(a)  a failure to carry into effect or enforce the provisions of this Act, an environmental planning instrument or a direction under section 55, 94E or 117, or

(b)  a failure to comply with the requirements of the staged repeal program under section 33B with respect to the preparation or making of a replacement local environmental plan.

serious corrupt conduct means corrupt conduct (within the meaning of the Independent Commission Against Corruption Act 1988) that may constitute a serious indictable offence, being conduct in connection with the exercise or purported exercise of the functions of a councillor.

118AA   Planning assessment panels

(1)  The bodies listed in Part 1 of Schedule 5B from time to time are established by this Act as planning assessment panels.

(2)  A panel is a body corporate with the corporate name specified in Part 1 of Schedule 5B.

(3)  A panel is a statutory body representing the Crown and has the status, privileges and immunities of the Crown.

(4)  A panel is to consist of such members (being not less than 3 and not more than 5) as are appointed by the Minister.

(5)  The members of the panel are to be persons who together have, in the opinion of the Minister, relevant skills and knowledge in planning and development matters.

(6)  The Minister is to appoint a member of the panel as the chairperson of the panel.

(7)  Part 2 of Schedule 5B has effect with respect to the members and procedure of panels.

(8)  A panel is, in the exercise of its functions, subject to the control and direction of the Minister.

(9)  A panel is to provide the Minister with such information and material as the Minister may require in relation to its policies, programs and procedures.

(10)  Despite subsection (8), a panel is not subject to the control of the Minister in determining a development application.

(11)  The Minister may, by order published in the Gazette, amend Part 1 of Schedule 5B for the purpose of:

(a)  establishing a panel, or

(b)  abolishing a panel, or

(c)  changing the name of a panel.

(12)  Any such order may contain savings and transitional provisions.

118AB   Function of a planning administrator or panel

(1)  During the period of appointment, the planning administrator or panel:

(a)  is to exercise the functions of the council under this Act that are specified in the order of appointment, and

(b)  is, in the exercise of those functions, taken to be the council, and

(c)  is to exercise those functions to the exclusion of the council except to the extent that the order of appointment provides otherwise, and

(d)  is, in the exercise of those functions, to give priority to particular functions to the extent that the order of appointment so provides.

(2)  Despite subsection (1), a planning administrator or panel is not to enter into contracts in the exercise of the planning administrator’s or panel’s functions except:

(a)  with the consent of the Minister and the concurrence of the Minister for Local Government, or

(b)  in the case of contracts for the appointment of staff—with the authority conferred by a regulation made under section 118AF.

(3)  Subsection (1) has effect even if the appointment of the planning administrator or panel is subsequently found not to have been validly made.

118AC   Costs of planning administrator or panel

(1)  A council, the functions of which are exercised by a planning administrator or panel, is to pay to the Director-General out of the council’s consolidated fund, the remuneration and costs and expenses of the planning administrator or panel.

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

(a)  exempt a council from payment of all or part of the remuneration and costs and expenses of the planning administrator or panel,

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

118AD   Council to assist planning administrator or panel

(1)  A council must, if directed to do so by the Minister, provide any of the following with such staff, facilities and documents as are specified in the direction:

(a)  a planning administrator or panel appointed to exercise functions of the council,

(b)  a staff member of any such planning administrator or panel,

(c)  a member of any such panel.

(2)  A member of a council, or a member of staff of a council, must not obstruct any of the persons in subsection (1) (a)–(c) in the exercise of his or her functions under this Division.

Maximum penalty: 10 penalty units.

(3)  Before giving a direction under subsection (1), the Minister is to consult with the Minister for Local Government.

118AE   Annual report on activities of planning administrators and panels

The Director-General is, in the annual report of the Department, to report on the activities of planning administrators and panels during the period covered by the annual report, including:

(a)  the financial activities of planning administrators and panels, and

(b)  the exercise of council functions by planning administrators and panels.

118AF   Regulations

The regulations may make provision for or with respect to the appointment and functions of a planning administrator or panel and, in particular, for or with respect to:

(a)  the accommodation, if any, to be provided at the offices of the council for the planning administrator or panel and any other persons assisting the planning administrator or panel in the exercise of the planning administrator’s or panel’s functions, and

(b)  the appointment of staff by the planning administrator or panel to assist in the exercise of the planning administrator’s or panel’s functions.

Division 1A Local enforcement powers

118A   Power of entry

(1)  For the purpose of enabling a council to exercise the council’s functions, the council may authorise a person, in writing, to enter any premises.

(2), (2A)  (Repealed)

(2B)  The principal certifying authority for any development may enter the land on which the development is carried out, including any building or work being erected on the land, for the purpose of exercising his or her functions under this Act and the regulations as the principal certifying authority with respect to the development.

(2C)  Subject to the regulations, this Division applies to a principal certifying authority referred to in subsection (2B) as if his or her functions as a principal certifying authority were the functions of a council and as if he or she had been authorised by a council to enter premises for the purpose of exercising those functions.

(3)  Entry may only be made at any reasonable hour in the daytime or at any hour during which business is in progress or is usually carried on at the premises.

118B   Inspections and investigations

For the purpose of enabling a council to exercise the council’s functions, a person authorised to enter premises under this Division may:

(a)  inspect the premises and any article, matter or thing on the premises, and

(b)  for the purpose of an inspection:

(i)  open any ground and remove any flooring and take such measures as may be necessary to ascertain the character and condition of the premises and of any pipe, sewer, drain, wire or fitting, and

(ii)  require the opening, cutting into or pulling down of any work if the person authorised has reason to believe or suspect that anything on the premises has been done in contravention of this Act, the regulations or an environmental planning instrument, and

(c)  take measurements, make surveys and take levels and, for those purposes, dig trenches, break up the soil and set up any posts, stakes or marks, and

(d)  require any person at those premises to answer questions or otherwise furnish information in relation to the matter the subject of the inspection or investigation, and

(e)  take samples or photographs in connection with any inspection.

118C   Notice of entry

(1)  Before a person authorised to enter premises under this Division does so, the council or the person must give the owner or occupier of the premises written notice of the intention to enter the premises.

(2)  The notice must specify the day on which the person intends to enter the premises and must be given before that day.

(3)  This section does not require notice to be given:

(a)  if entry to the premises is made with the consent of the owner or occupier of the premises, or

(b)  if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or

(c)  if entry is required urgently and the case is one in which the general manager of the council has authorised in writing (either generally or in the particular case) entry without notice.

118D   Use of force

(1)  Reasonable force may be used for the purpose of gaining entry to any premises (other than residential premises) under a power conferred by this Division, but only if authorised by the council in accordance with this section.

(2)  The authority of the council:

(a)  must be in writing, and

(b)  must be given in respect of the particular entry concerned, and

(c)  must specify the circumstances which are required to exist before force may be used.

118E   Notification of use of force or urgent entry

(1)  A person authorised to enter premises under this Division who:

(a)  uses force for the purpose of gaining entry to the premises, or

(b)  enters the premises in an emergency without giving written notice to the owner or occupier,

      must promptly advise the council.

(2)  The council must give notice of the entry to such persons or authorities as appear to the council to be appropriate in the circumstances.

118F   Care to be taken

(1)  In the exercise of a function under this Division, a person authorised to enter premises must do as little damage as possible. The council must provide, if necessary, other means of access in place of any taken away or interrupted by a person authorised by it.

(2)  As far as practicable, entry on to fenced land is to be made through an existing opening in the enclosing fence. If entry by that means is not practicable, a new opening may be made in the enclosing fence, but the fence is to be fully restored when the need for entry ceases.

118G   Recovery of cost of entry and inspection

If a person authorised by a council enters any premises under this Division for the purpose of making an inspection and as a result of that inspection, under a power conferred on the council, the council requires any work to be carried out on or in the premises, the council may recover the reasonable costs of the entry and inspection from the owner or occupier of the premises.

118H   Compensation

A council must pay compensation for any damage caused by any person authorised by the council under this Division to enter premises, other than damage arising from work done for the purpose of an inspection which reveals that there has been a contravention of this Act, the regulations or an environmental planning instrument.

118I   Authority to enter premises

(1)  A power conferred by this Division to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority if required to do so by the owner or occupier of the premises.

(2)  The authority must be a written authority which is issued by the council and which:

(a)  states that it is issued under this Act, and

(b)  gives the name of the person to whom it is issued, and

(c)  describes the nature of the powers conferred and the source of the powers, and

(d)  states the date (if any) on which it expires, and

(e)  describes the kind of premises to which the power extends, and

(f)  in the case of a council, bears the signature of the general manager.

(3)  This section does not apply to a power conferred by a search warrant.

118J   In what circumstances can entry be made to a residence?

The powers of entry and inspection conferred by this Division are not exercisable in relation to that part of any premises being used for residential purposes except:

(a)  with the permission of the occupier of that part of the premises, or

(b)  if entry is necessary for the purpose of inspecting work being carried out under a development consent (including a complying development certificate), or

(c)  under the authority conferred by a search warrant, or

(d)  if an application for a building certificate has been made under section 149B in respect of premises used for residential purposes and entry is necessary for the purpose of inspecting the premises in order to issue a building certificate in accordance with sections 149A–149E.

118K   Search warrants

(1)  A person generally or specially authorised by a council for the purposes of this section may apply to an authorised officer if the authorised person has reasonable grounds for believing that the provisions of this Act, the regulations, an environmental planning instrument or the terms of a development consent, complying development certificate or order under this Act have been or are being contravened in or on any premises.

(2)  An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised person named in the warrant:

(a)  to enter the premises, and

(b)  to search the premises for evidence of a contravention of this Act, the regulations, an environmental planning instrument or the terms of a development consent, complying development certificate or order under this Act.

(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.

(4)  Without limiting the generality of section 71 of the Law Enforcement (Powers and Responsibilities) Act 2002, a police officer:

(a)  may accompany an authorised person executing a search warrant issued under this section, and

(b)  may take all reasonable steps to assist the authorised person in the exercise of the person’s functions under this section.

(5)  In this section:

authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.

118L   Special provision with respect to fire brigades

(1)  An authorised fire officer within the meaning of section 121ZC may exercise the functions conferred on a person authorised by a council under this Division for the purpose of inspecting a building to determine:

(a)  whether or not adequate provision for fire safety has been made in or in connection with the building, or

(b)  whether or not such of the provisions of this or any other Act or law as may be prescribed for the purposes of this paragraph have been complied with.

(2)  An inspection for the purposes of subsection (1) (a) is not, however, authorised for premises other than places of shared accommodation except:

(a)  when requested by the council of the area in which the building is located, or

(b)  when requested by a person who holds himself or herself out as the owner, lessee or occupier of the building, or

(c)  when the Commissioner of New South Wales Fire Brigades has received a complaint in writing that adequate provision for fire safety has not been made concerning the building.

(3)  A council must, at the request of the Commissioner of New South Wales Fire Brigades, make available a person authorised by the council for the purposes of the inspection, and the person concerned is to be present during the inspection.

(4)  The Commissioner of New South Wales Fire Brigades must send a report of any inspection carried out under this section to the council concerned.

(5)  This Division applies to an authorised fire officer within the meaning of section 121ZC in the same way as it applies to a council and a council employee (or other person) authorised by the council.

118M   Councils to carry out fire-safety inspections on request of Commissioner of NSW Fire Brigades

(1)  A council must, at the written request of the Commissioner of New South Wales Fire Brigades, cause any building specified in the request to be inspected for the purpose of determining whether or not adequate provision for fire safety has been made in or in connection with the building.

(2)  As soon as practicable after such an inspection has been carried out, the council must send a report of the inspection to the Commissioner of New South Wales Fire Brigades.

118N   Obstruction of authorised persons

A person must not obstruct, hinder or interfere with an authorised person in the exercise of the person’s functions under this Division.

Maximum penalty: 20 penalty units.

Division 1B

118O–118R(Repealed)

Division 2 Public inquiries and settlement of disputes

119   Public inquiry

(1)  The Minister may at any time direct that an inquiry be held, in accordance with this section, by a Commission of Inquiry appointed under subsection (2) with respect to:

(a)  any matter relating to the administration and implementation of the provisions of this Act or any environmental planning instrument or relating to the administration and implementation of the provisions of any other Act administered by the Minister,

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

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

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

(e)  all or any of the environmental aspects of a project under Part 3A.

(2)  Where, pursuant to subsection (1) or section 49 (1) or 89 (3), an inquiry is directed to be held, the Minister may appoint one or more Commissioners of Inquiry to constitute a Commission of Inquiry to hold the inquiry and may appoint one or more persons to assist such a Commission.

(3)  Any person appointed under subsection (2) to assist a Commission of Inquiry shall be paid such remuneration and allowances as may be determined in respect of the person by the Minister.

(3A)  Where the Chairperson of Commissioners of Inquiry is appointed with one or more Commissioners of Inquiry to constitute a Commission of Inquiry, the Chairperson shall preside at the proceedings of the Commission.

(3B)  Except as provided by subsection (3A), where the Deputy Chairperson of Commissioners of Inquiry is appointed with one or more Commissioners of Inquiry to constitute a Commission of Inquiry, the Deputy Chairperson shall preside at the proceedings of the Commission.

(4)  Where there is more than one Commissioner of Inquiry constituting a Commission of Inquiry, neither or none of whom is the Chairperson of Commissioners of Inquiry or the Deputy Chairperson of Commissioners of Inquiry, the Minister shall appoint one of the Commissioners to preside at the proceedings of the Commission.

(5)  Except as provided in subsection (1), a Commission of Inquiry is not subject to directions by the Minister or any other person in relation to the contents of its report, findings or recommendations.

(6)  A Commission of Inquiry constituted under this section shall hold an inquiry in accordance with the direction of the Minister or Director-General, as referred to in subsection (1) or (2), shall report its findings and recommendations to the Minister or Director-General, as the case may be, and shall, after so reporting, but subject to subsection (7), make public those findings and recommendations.

(7)  A Commission of Inquiry shall not make public any evidence or matters in respect of which directions have been given under section 120 (5) (b) or matters the publication of which is excepted from section 120 (8).

(8)  If the inquiry was held with respect to proposed development (other than designated development), or part of any such proposed development, the subject of a development application, a copy of the findings and recommendations, and of any comment that the Minister may consider appropriate to make on them, must be forwarded by the Minister:

(a)  to the consent authority having the function of determining the application, and

(b)  to any public authority whose concurrence to the granting of consent to the application is required.

119A   Certain inquiries taken to be public inquiries for purposes of Local Government Act 1993

An inquiry that is directed to be held under section 119 that relates to the exercise, or the failure or refusal to exercise, by a council of any of the functions conferred or imposed on it by or under this Act may be relied on as a public inquiry for the purposes of section 255 of the Local Government Act 1993.

120   Procedure at inquiries

(1)  Subject to this section, an inquiry by a Commission of Inquiry constituted under section 119 shall be held in public and evidence in the inquiry shall be taken in public and may be required to be taken on oath or affirmation.

(2)  Before a Commission of Inquiry commences to hold an inquiry, it shall give reasonable notice, by advertisement published in the Gazette and in such newspapers as it thinks necessary, of its intention to hold the inquiry, of the subject of the inquiry and of the time and place at which the inquiry is to be commenced.

(3)  A Commissioner of Inquiry may, by writing signed by the Commissioner summon a person to appear before the Commission of Inquiry at a time and place specified in the summons to give evidence and to produce such books and documents (if any) as are referred to in the summons.

(4)  A person served with a summons to appear as a witness at an inquiry by a Commission of Inquiry shall not, without reasonable excuse:

(a)  fail to attend as required by the summons, or

(b)  fail to appear and report himself or herself from day to day unless excused or released from further attendance by or on behalf of the Commission.

Maximum penalty: 10 penalty units.

(5)  Where a Commission of Inquiry is satisfied that it is desirable to do so in the public interest by reason of the confidential nature of any evidence or matter or for any other reason, the Commission may:

(a)  direct that an inquiry or a part of an inquiry shall take place in private and give directions as to the persons who may be present, or

(b)  give directions prohibiting or restricting the publication of evidence given before the Commission or of matters contained in documents lodged with the Commission,

      or do both of those things.

(6)  A Commission of Inquiry may, if it thinks fit, permit a person appearing as a witness before the Commission to give evidence by tendering, and verifying by oath or affirmation, a written statement.

(7)  Where a Commission of Inquiry considers that the attendance of a person as a witness before the Commission would cause serious hardship to the person, the Commission may permit the person to give evidence by sending to the Commission a written statement, verified in such manner as the Commission allows.

(8)  Where evidence is given to a Commission of Inquiry by a written statement in accordance with subsection (6) or (7), the Commission shall make available to the public in such manner as the Commission thinks fit the contents of the statement other than any matter the publication of which, in the opinion of the Commissioner, would be contrary to the public interest by reason of its confidential nature or for any other reason.

(9)  Subject to this section and the regulations:

(a)  the procedure to be followed at an inquiry by a Commission of Inquiry shall be determined by the Commission, and

(b)  a Commission of Inquiry is not bound by the rules of evidence.

(10)  An oath or an affirmation may be administered for the purposes of this section by a Commissioner of Inquiry or by any person authorised by the Oaths Act 1900 to administer a judicial oath.

(11)  Nothing in this section derogates from any law relating to Crown privilege.

(12)  This section is subject to section 120A.

120A   Additional procedural requirements where water approval is involved

(1)  A Commission of Inquiry must cause notice to be given to the Minister for Land and Water Conservation if, before or at any time up to the conclusion of an inquiry held by it into:

(a)  the environmental aspects of any proposed development the subject of a development application, whether or not it is designated development, or

(b)  the environmental aspects of any activity referred to in section 112 (1),

      it is of the opinion that the development or activity may involve the need for an approval under the Water Management Act 2000.

(2)  For the purposes of subsection (1), an inquiry concludes when the Commission of Inquiry provides its report on the inquiry to the Minister under section 119 (6), regardless of when any public hearings conducted in connection with the inquiry are concluded.

(3)  The Commission of Inquiry must also cause notice to be given to the applicant for the development, or the proponent of the activity, advising that an application for an approval should be made promptly if it has not already been made.

(4)  The Commission of Inquiry must defer concluding its inquiry for sufficient time to enable:

(a)  the applicant or proponent to apply for an approval, and

(b)  any objectors to object to the granting of an approval,

      under the Water Management Act 2000.

(5)  As soon as practicable after the applicant’s or proponent’s application for an approval is referred to it under section 94 of the Water Management Act 2000, the Commission of Inquiry must give at least 28 days’ notice, by advertisement published in the Gazette and in such newspapers as it thinks necessary, of its intention to hold a public hearing in connection with the application concerned and of the time and place at which the hearing is to be held.

(6)  The advertisement under subsection (5) may, but need not, form part of the advertisement referred to in section 120 (2).

(7)  In addition to considering any submissions that are made to it in the course of its inquiry, the Commission of Inquiry must consider:

(a)  the application for an approval, and

(b)  any objection to the granting of an approval that has been referred to it under section 94 of the Water Management Act 2000.

(8)  In any report prepared by it under section 119 (6), the Commission of Inquiry must include findings and recommendations with respect to:

(a)  the question of whether or not an approval should be granted, and

(b)  the period, term, limitations and conditions of any such approval.

(9)  The Commission of Inquiry must cause a copy of any such report to be given to the Minister for Land and Water Conservation.

(10)  This section extends to any inquiry that had been begun by a Commission of Inquiry, but in respect of which a report had yet to be made under section 119 (6), as at the commencement of this section.

(11)  The regulations may make further provision for or with respect to the procedure of a Commission of Inquiry in relation to those aspects of its inquiry that relate to the granting of an approval.

(12)  (Repealed)

121   Settlement of disputes

(1)  Where a dispute arises between the Department or the Director-General, and a public authority, other than a council, with respect to:

(a)  the operation of any provision made by or under this Act, the regulations or an environmental planning instrument, or

(b)  the exercise of any function conferred or imposed upon the Department or the Director-General or upon the public authority by or under this Act, the regulations or an environmental planning instrument,

      a party to the dispute may submit that dispute to the Premier for settlement in accordance with this section.

(1A)  Where a dispute arises between a public authority, other than a council, and another public authority, other than a council, with respect to:

(a)  the operation of any provision made by or under this Act, the regulations or an environmental planning instrument, or

(b)  the exercise of any function conferred or imposed upon any such public authority by or under this Act, the regulations or an environmental planning instrument,

      a party to the dispute may submit that dispute to the Premier for settlement in accordance with this section.

(2)  Where a dispute arises between a public authority (including the Department and the Director-General) and a council with respect to:

(a)  the operation of any provision made by or under this Act, the regulations or an environmental planning instrument, or

(b)  the exercise of any function conferred or imposed upon the public authority or council by or under this Act, the regulations or an environmental planning instrument,

      a party to the dispute may submit that dispute to the Minister for settlement in accordance with this section.

(3)  On the submission of a dispute to the Premier or the Minister under subsection (1), (1A) or (2), the Premier or Minister may appoint a Commissioner of Inquiry to hold an inquiry and make a report to the Premier or the Minister with respect to that dispute or may himself or herself hold an inquiry with respect to that dispute.

(4)  After the completion of an inquiry held under subsection (3) and, where a report is made to the Premier or the Minister under that subsection, after consideration by the Premier or the Minister of that report, the Premier or the Minister, as the case may be, may make such order with respect to the dispute, having regard to the public interest and to the circumstances of the case, as the Premier or the Minister thinks fit.

(5)  An order made by the Premier or the Minister under subsection (4) may direct the payment of any costs or expenses of or incidental to the holding of the inquiry.

(6)  The Department, the Director-General, a council or other public authority, as the case may be, shall comply with an order given under subsection (4), and shall, notwithstanding the provisions of any Act, be empowered to comply with any such order.

(7)  The provisions of any other Act relating to the settlement of disputes do not apply to the settlement of a dispute referred to in subsection (1), (1A) or (2).

Division 2A Orders

121A   Definitions

In this Division:

consent authority includes, in the case of a project to which Part 3A applies, the Minister.

development consent includes, in the case of a project to which Part 3A applies, an approval under that Part to carry out the project.

order means an order under this Division.

121B   Orders that may be given by consent authority or by Minister etc

(1)  An order may be given to a person by:

(aa)  the Minister or the Director-General (but only in connection with a project to which Part 3A applies or in connection with development for which the Minister or Director-General is or has been the consent authority), or

(a)  a council, or

(b)  any other person who exercises functions as a consent authority, except in relation to complying development for which a complying development certificate has been issued,

      to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.

Column 1		Column 2	Column 3
To do what?		In what circumstances?	To whom?
1	To cease using premises for a purpose specified in the order	(a)  Premises are being used for a purpose that is prohibited (b)  Premises are being used for a purpose for which development consent is required but has not been obtained (c)  Premises are being used in contravention of the conditions of a development consent	Owner of premises, or person by whom premises are being used for the purpose specified in the order
2	To demolish or remove a building	(a)  Building is erected without prior development consent of consent authority in a case where prior development consent is required or is erected without prior development consent of a consent authority and a prior construction certificate in a case where both prior development consent and a prior construction certificate are required (b)  Building is or is likely to become a danger to the public (c)  Building is so dilapidated as to be prejudicial to its occupants or to persons or property in the neighbourhood (d)  Building is erected without prior approval of council, in a case where prior approval was required under the Local Government Act 1919 or the Local Government Act 1993 when the erection of the building commenced	Owner of building
3	Not to demolish, or to cease demolishing a building	(a)  Building is likely to be demolished without prior development consent of consent authority in a case where prior development consent is required (b)  Building is being demolished without prior development consent of consent authority or otherwise than in accordance with prior development consent of consent authority in a case where prior development consent is required	Owner of building, person likely to demolish or person engaged in demolition
4	To repair or make structural alterations to a building	(a)  Building is or is likely to become a danger to the public (b)  Building is so dilapidated as to be prejudicial to its occupants or to persons or property in the neighbourhood	Owner of building
5	To alter, obliterate, demolish or remove an advertisement and any associated advertising structure	(a)  The advertisement is unsightly, objectionable or injurious to the amenity of any natural landscape, foreshore, public reserve or public place at or near where the advertisement is displayed (b)  The advertisement is displayed contrary to a provision made by or under this Act (c)  The advertising structure is erected contrary to a provision made by or under this Act	The person who caused the advertisement to be displayed or advertising structure to be erected or the owner or occupier of the premises on which the advertisement is displayed or the advertising structure is erected
6	To do or refrain from doing such things as are specified in the order so as to ensure or promote adequate fire safety or fire safety awareness	(a)  Provisions for fire safety or fire safety awareness are not adequate to prevent fire, suppress fire or prevent the spread of fire or ensure or promote the safety of persons in the event of fire (b)  Maintenance or use of the premises constitutes a significant fire hazard	Owner of premises or, in the case of a place of shared accommodation, the owner or manager
7	To erect or install on or around a building such structures or appliances as are necessary to protect persons or property on or in a public place	(a)  Building is about to be erected (b)  Building is situated in the immediate vicinity of a public place and is dangerous to persons or property on or in the public place (c)  Building is about to be demolished (d)  Work is about to be carried out (e)  Work is about to be demolished	Owner or occupier of land
8	Not to conduct, or to cease conducting, an activity on premises (being an activity that is, or is capable of being, the subject of a development consent, whether or not the activity is the subject of a development consent)	The activity constitutes or is likely to constitute: (a)  a life threatening hazard, or (b)  a threat to public health or public safety,       and is not regulated or controlled under any other Act by a public authority	Any person apparently engaged in promoting, conducting or carrying out the activity
9	To cease the use of a building	The use of the building: (a)  is not consistent with its classification under this Act or the Local Government Act 1993, and (b)  constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and (c)  is not regulated or controlled under any other Act by a public authority	The owner or occupier of the building
10	To cease the use of premises or to evacuate premises	A person to whom order No 6 or 8 is given has failed to comply with the order	The person to whom order No 6 or 8 is given
11	To leave premises or not to enter premises	A person to whom order No 6 or 8 is given has failed to comply with the order	Any person
12	To do such things as are specified in the order to restore premises to the condition in which they were before building was unlawfully erected or before work was unlawfully carried out	(a)  Building has been unlawfully erected, and an order No 2 has been given requiring the building to be demolished or removed (b)  Work has been unlawfully carried out	The owner of the premises, any person entitled to act on a development consent or complying development certificate or any person acting otherwise than in compliance with a development consent or complying development certificate
13	To do such things as are necessary to bring into compliance with relevant development standards any building or part of a building that has been unlawfully erected	Building has been unlawfully erected and does not comply with relevant development standards	The owner of the premises
14	To repair or remove a building	The building is situated wholly or partly in a public place	Owner or occupier of building
15	To comply with a development consent	The development consent is not being complied with	Person entitled to act on the development consent or person acting otherwise than in compliance with the development consent
16	To complete development that is subject to a development consent within such time (not being less than 12 months from the date of service of the order) as the consent authority considers reasonable, having regard to all relevant circumstances, including the nature of the development, and including, if the development is the subject of: (a)  a proposed strata development contract referred to in the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, or (b)  a development contract registered with a community plan or precinct plan under the Community Land Development Act 1989,       the proposals relating to the stages in which the development is to be effected	The development has been commenced within the period specified in section 95 (1) but has not been completed within that period	The owner of the land to which the development consent applies
17	To carry out works associated with a subdivision	There has been a failure to carry out the works in accordance with a development consent or an agreement made with the applicant for development consent	The person required to carry out the works
18	To do or refrain from doing any act to remedy or restrain a breach of Part 3A or of an approval under that Part	The breach has occurred, is occurring or is likely to occur	The person who caused, is causing or is likely to cause the breach, or the person entitled to act on the approval

(2)  The regulations may prescribe acts and circumstances that are taken to be included in or excluded from any of the acts or circumstances specified in Column 1 or 2 of the Table to subsection (1).

(3)  An order under item 18 of the Table to subsection (1) may only be given by the Minister or the Director-General.

121C   Giving orders to public authorities

(1)  An order under this Division may not be given in respect of the following land without the prior written consent of the Minister:

(a)  vacant Crown land,

(b)  a reserve within the meaning of Part 5 of the Crown Lands Act 1989,

(c)  a common within the meaning of the Commons Management Act 1989.

(2)  The Minister must not give consent in respect of vacant Crown land or a reserve within the meaning of Part 5 of the Crown Lands Act 1989 until after the Minister has consulted the Minister administering the Crown Lands Act 1989.

121D   Circumstances in which compliance with secs 121F–121K is required

Before giving an order, the person who gives the order must comply with sections 121F–121K, except for:

(a)  order No 8 in the Table to section 121B, or

(b)  an order given, and expressed to be given, in an emergency, or

(c)  an order given by the Minister or the Director-General in connection with a project to which Part 3A applies.

121E   Effect of compliance with secs 121F–121K

A person who complies with sections 121F–121K is taken to have observed the rules of natural justice (the rules of procedural fairness).

121F   Criteria to be considered before order is given

If a council has adopted criteria in a development control plan on which it is to give an order, the council is required to take the criteria into consideration before giving the order.

121G   Orders that make or are likely to make residents homeless

(1)  If an order will or is likely to have the effect of making a resident homeless, the person who gives the order must consider whether the resident is able to arrange satisfactory alternative accommodation in the locality.

(2)  If the resident is not able to arrange satisfactory alternative accommodation in the locality, the person who gives the order must provide the resident with:

(a)  information as to the availability of satisfactory alternative accommodation in the locality, and

(b)  any other assistance that the person considers appropriate.

121H   Notice to be given of proposed order

(1) Notice to whom the order is to be given
Before giving an order, the person who gives the order must give notice to the person to whom the order is proposed to be given of the intention to give the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with.

(2)  The notice must also indicate that the person to whom the order is proposed to be given may make representations to the person who gives the order as to why the order should not be given or as to the terms of or period for compliance with the order.

(3)  The notice may provide that the representations are to be made to the person who gives the order or a nominated person on a nominated date, being a date that is reasonable in the circumstances of the case. In the case of a council this may be a specified committee of the council on a specified meeting date or to a specified employee of the council on or before a specified date.

(4) Notice to the other consent authorities
If a council proposes to give an order in relation to development for which another person is the consent authority, the council must give the other person notice of its intention to give the order.

(5) Notice to principal certifying authority
If a council proposes to give an order in relation to building work or subdivision work for which the council is not the principal certifying authority, the council must give the principal certifying authority notice of its intention to give the order.

121I   Making of representations

(1)  A person may, in accordance with a notice under section 121H, make representations concerning the proposed order.

(2)  For the purpose of making the representations, the person may be represented by an Australian legal practitioner or agent.

121J   Hearing and consideration of representations

The person who gives the order or the nominated person is required to hear and to consider any representations made under section 121I.

121K   Procedure after hearing and consideration of representations

(1)  After hearing and considering any representations made concerning the proposed order, the person who gives the order or the nominated person may determine:

(a)  to give an order in accordance with the proposed order, or

(b)  to give an order in accordance with modifications made to the proposed order, or

(c)  not to give an order.

(2)  If the determination is to give an order in accordance with modifications made to the proposed order, the person who gives the order is not required to give notice under this Division of the proposed order as so modified.

121L   Reasons for orders to be given

(1)  A person who gives an order must give the person to whom the order is directed the reasons for the order.

(2)  The reasons may be given in the order or in a separate instrument.

(3)  The reasons must be given when the order is given, except in an emergency. In an emergency, the reasons may be given the next working day.

121M   Period for compliance with order

(1)  An order must specify a reasonable period within which the terms of the order are to be complied with, subject to this section.

(2)  An order may require immediate compliance with its terms in circumstances which the person who gives the order believes constitute a serious risk to health or safety or an emergency.

121N   Notice of right to appeal against order

A person who gives an order must, in giving a person notice of the order:

(a)  state that the person may appeal to the Court against the order or a specified part of the order, and

(b)  specify the period within which an appeal may be made.

121O   Development consent or approval not required to comply with order

A person who carries out work in compliance with a requirement of an order does not have to make an application under Part 3A for approval or Part 4 for consent to carry out the work.

121P   Order may specify standards and work that will satisfy those standards

(1)  Instead of specifying the things the person to whom the order is given must do or refrain from doing, an order:

(a)  may specify the standard that the premises are required to meet, and

(b)  may indicate the nature of the work that, if carried out, would satisfy that standard.

(2)  Such an order may require the owner or occupier to prepare and submit to the person who gives the order, within the period (not exceeding 3 months) specified in the order, particulars of the work the owner or occupier considers necessary to make provision for such matters as may be so specified.

121Q   Compliance with order under sec 121P

(1)  A person complies with a requirement of an order under section 121P (2) by submitting to the person who gives the order such matters as the person would be required to submit if applying to a consent authority for development consent to carry out the work.

(2)  (Repealed)

121R   Consent authority’s response to submission of particulars of work by owner

(1)  A person who gives an order must, within 28 days after particulars of work are submitted to the person in accordance with section 121P (2):

(a)  accept the particulars without modification or with such modifications as the person thinks fit, or

(b)  reject the particulars.

(2)  If a person accepts the particulars of work without modification, the person must forthwith order the owner to carry out that work.

(3)  If a person accepts the particulars of work with modifications or rejects the particulars, or if an owner fails to submit particulars of work in accordance with section 121P (2), the person must:

(a)  prepare, within 3 months after the acceptance, rejection or failure, particulars of the work that the person considers necessary to make provision for the matters specified in the order given to the owner under section 121P, and

(b)  order the owner to carry out that work.

(4)  An order under this section is not invalid merely because of the failure of the person to accept or reject any particulars of work or prepare particulars of any work, as the case may be, within the period it is required to do so by this section.

(5)  A person may recover from an owner as a debt the person’s expenses of preparing particulars of work under this section.

(6)  Except for the purposes of section 121ZK (3), an order under this section forms part of the order under section 121B to which it relates.

121S   Orders affecting heritage items

(1)  This section applies to an item of the environmental heritage:

(a)  to which an interim heritage order or listing on the State Heritage Register under the Heritage Act 1977 applies or to which an order under section 136 of that Act applies, or

(b)  that is identified as such an item in an environmental planning instrument.

(2)  A person must not give an order under this Division in respect of an item of the environmental heritage to which this section applies until after the person has considered the impact of the order on the heritage significance of the item.

(3)  A person must not give an order under this Division in respect of an item of the environmental heritage to which subsection (1) (a) applies until after the person has given notice of the order to the Heritage Council and has considered any submissions duly made to the person by the Heritage Council.

(4)  The Heritage Council may, by instrument in writing served on a person, exempt the person from the requirements of subsection (3).

(5)  An exemption under subsection (4) may be given unconditionally or subject to such conditions as the Heritage Council determines, and may be varied or revoked by a subsequent instrument in writing made by the Heritage Council and served on the person.

(6)  The Heritage Council may make a submission:

(a)  within 28 days after it is given notice by the person, or

(b)  if, within 28 days after it is given notice by the person, the Heritage Council requests that a joint inspection of the item be made, within 28 days after the joint inspection is made.

(7)  If the Heritage Council notifies a person that it wishes to be consulted in connection with an order under section 121R, the person must include a statement to that effect in any order under section 121P.

(8)  This section does not apply to:

(a)  order No 3 in the Table to section 121B if given by a person in an emergency, or

(b)  order No 8, 10 or 11.

121T   Combined orders

A person who gives an order may include two or more orders in the same instrument.

121U   Giving and taking effect of orders

An order is given by serving a copy of the order on the person to whom it is addressed and takes effect from the time of service or a later time specified in the order.

121V   Orders may be given to two or more persons jointly

If appropriate in the circumstances of the case, an order may direct two or more people to do the thing specified in the order jointly.

121W   Notice in respect of land or building owned or occupied by more than one person

(1)  If land, including land on which a building is erected, is owned or occupied by more than one person:

(a)  an order in respect of the land or building is not invalid merely because it was not given to all of those owners or occupiers, and

(b)  any of those owners or occupiers may comply with such an order without affecting the liability of the other owners or occupiers to pay for or contribute towards the cost of complying with the order.

(2)  Nothing in this Division affects the right of an owner or occupier to recover from any other person all or any of the expenses incurred by the owner or occupier in complying with such an order.

121X   Notice of giving of order No 16

A person who gives an order must, on or as soon as practicable after the day on which the person gives an order in the terms of order No 16 in the Table to section 121B, send a copy of the order to:

(a)  such persons (if any) as are, in the opinion of the person, likely to be disadvantaged by the giving of the order, and

(b)  such persons (if any) as are referred to in the regulations for the purposes of this section.

121Y   Effect of order on successors in title

An order given to a person binds any person claiming through or under or in trust for or in succession to the person or who is a subsequent owner or occupier to the person, as if the order had been given to that person.

121Z   Compliance with orders by occupiers or managers

If an occupier or manager complies with an order, the occupier or manager may (unless the occupier or manager has otherwise agreed) deduct the cost of so complying (together with interest at the rate currently prescribed by the Supreme Court rules in respect of unpaid judgment debts) from any rent payable to the owner or may recover the cost (and that interest) from the owner as a debt in any court of competent jurisdiction.

121ZA   Occupier of land may be required to permit owner to carry out work

(1)  The person who gives an order may order the occupier of any land to permit the owner of the land to carry out such work on the land as is specified in the order (being work that is, in the person’s opinion, necessary to enable the requirements of this Act or the regulations, or of any order under section 121B, to be complied with).

(2)  An occupier of land on whom such an order is served must, within 2 days after the order is served, permit the owner to carry out the work specified in the order.

(3)  The owner of the land is not guilty of an offence arising from his or her failure to comply with the requirements of this Act or the regulations, or of any order under section 121B, if, while an order under this section is in force, the occupier of the land refuses to permit the owner to carry out the work specified in the order.

(4)  Subsection (3) applies only if the owner of the land satisfies the Court that the owner has, in good faith, tried to comply with the requirements concerned.

121ZB   Notice of fire safety orders to be given to Commissioner of NSW Fire Brigades

A person who gives an order must immediately give notice to the Commissioner of New South Wales Fire Brigades of an order given by the person in terms of order No 6 in the Table to section 121B.

121ZC   Powers of fire brigades

(1)  An authorised fire officer who inspects a building in accordance with section 118L may give:

(a)  order No 6 in the Table to section 121B if the order does not require the carrying out of any structural work to the premises concerned, or

(b)  order No 8 in the Table to section 121B if the premises concerned are a place of shared accommodation, or

(c)  order No 10 or 11 in the Table to section 121B if a person to whom an order under paragraph (a) or (b) is given has failed to comply with the order.

(2)  The provisions of:

(a)  sections 121D–121K, and

(b)  section 121Q,

      do not apply to an order given in accordance with this section in circumstances which the authorised fire officer believes constitute an emergency or a serious risk to safety.

(3)  For the purpose of giving such an order, an authorised fire officer may exercise such of the powers of a person who gives an order under this Division as are specified in the fire officer’s authorisation under this section.

(4)  In exercising a power under this Division, an authorised fire officer may be accompanied and assisted by a police officer.

(5)  An authorised fire officer must forward a copy of an order given under this section to the relevant council.

(6)  In this section, a reference to an authorised fire officer, in relation to the exercise of a power under this Division, is a reference to:

(a)  the Commissioner of New South Wales Fire Brigades, or

(b)  a member of staff of New South Wales Fire Brigades who is for the time being authorised by the Minister administering the Fire Brigades Act 1989 to exercise that power, or

(c)  an officer or member of a fire brigade who is for the time being authorised by the Minister administering the Fire Brigades Act 1989 to exercise that power.

121ZD   Inspection reports by fire brigades

(1)  If the Commissioner of New South Wales Fire Brigades carries out an inspection of a building under section 118L, the Commissioner must furnish to the council of the area in which the building is located:

(a)  a report of the inspection, and

(b)  if of the opinion that adequate provision for fire safety has not been made concerning the building, such recommendations as to the carrying out of work or the provision of fire safety and fire-fighting equipment as the Commissioner considers appropriate.

(2)  A council must:

(a)  table any report and recommendations it receives under this section at the next meeting of the council, and

(b)  at any meeting of the council held within 28 days after receiving the report and recommendations or at the next meeting of the council held after the tabling of the report and recommendations, whichever is the later, determine whether it will exercise its powers to give order No 6 or 8 in the Table to section 121B.

(3)  A reference in subsection (2) to a meeting of a council does not include a reference to a special meeting of the council unless the special meeting is called for the purpose of tabling any report and recommendations or making any determination referred to in that subsection.

(4)  A council must give notice of a determination under this section to the Commissioner of New South Wales Fire Brigades.

121ZE   Details of orders and notices to be given to councils

(1)  A person, other than a council, who gives a notice or an order under this Division must immediately give a copy of the notice or order to the council.

(2)  The person, if requested by the council, must immediately inform the council whether or not the notice is outstanding or the order is in force and of any action proposed to be taken by the person in relation to the notice or order.

121ZF   Modification of orders

A person who gives an order may, at any time, modify an order it has given to a person (including a modification of the period specified for compliance with the order) but, except in the case of an order given by the Minister or the Director-General, only if the person to whom the order is given agrees to that modification.

121ZG   Revocation of orders

(1A)  An order given by the Minister may be revoked by the Minister at any time, and an order given by the Director-General may be revoked by the Minister or the Director-General at any time.

(1)  An order given by a consent authority may be revoked by the consent authority at any time.

(2)  An order given by a council may be revoked by the council at any time.

(3)  An order given by an authorised fire officer (as referred to in section 121ZC (6)) may be revoked by an authorised fire officer at any time.

121ZH   Minister may revoke or modify a council’s order

(1)  The Minister may revoke or modify an order given by a council.

(2)  Notice of the revocation or modification must be given to the council and the person to whom the order was given.

(3)  The revocation or modification takes effect from the date specified in the Minister’s notice. The date may be the date on which the order was given by the council or a later date.

(4)  The Minister may prohibit a council from re-making an order that is revoked or modified under this section, totally or within such period or except in accordance with such terms and conditions (if any) as the Minister may specify.

(5)  Notice of a prohibition may be given in the same notice as notice of the revocation or modification of an order or in a separate notice.

121ZI   Limitation on Minister’s orders

The Minister must not take any action under section 121ZH that is inconsistent with, or has the effect of revoking or modifying, an order given by the council unless the Minister is of the opinion that:

(a)  it is necessary because of an emergency, or

(b)  it is necessary because of the existence or reasonable likelihood of a serious risk to health or safety, or

(c)  the order relates to a matter of State or regional significance, or

(d)  the order relates to a matter in which the intervention of the Minister is necessary in the public interest.

121ZJ   Failure to comply with order—carrying out of work by consent authority

(1)  If a person fails to comply with the terms of an order given to the person under this Division, the person who gave the order may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order.

(2)  If the person who gave the order gives effect to it by demolishing a building, the person:

(a)  may remove any materials concerned, and

(b)  may sell the materials, unless the person’s expenses in giving effect to the terms of the order are paid to the person within 14 days after removal of the materials.

(3)  If the proceeds of such a sale exceed the expenses incurred by the person who gave the order in relation to the demolition and the sale, the person:

(a)  may deduct out of the proceeds of the sale an amount equal to those expenses, and

(b)  must pay the surplus to the owner on demand.

(4)  If the proceeds of sale do not exceed those expenses, the person who gave the order:

(a)  may retain the proceeds, and

(b)  may recover the deficiency (if any) together with the person’s costs of recovery from the owner as a debt.

(5)  Materials removed that are not saleable may be destroyed or otherwise disposed of.

(6)  If work required by the order is carried out by the person who gave the order in relation to development for which an amount of security was provided and the amount of the security is more than the costs of carrying out the work, the person, after being recompensed from the security, must pay the surplus to the person entitled to it on demand.

(7)  Any expenses incurred under this section by a person who gave an order (less the proceeds, if any, of any sale under this section or the amount of any security provided in respect of development to which the order relates) together with all associated costs may be recovered by the person in any court of competent jurisdiction as a debt due to the person by the person required to comply with the order.

(8)  Nothing in subsection (3), (4), (6) or (7) affects the owner’s right to recover any amount from any lessee or other person liable for the expenses of repairs.

(9)  A reference in subsection (4), (6) or (7) to costs is a reference to costs incurred by the person who gave the order in seeking to recover the deficiency or expenses otherwise than by proceedings in a court, but nothing in this section prevents the person from receiving costs as between party and party in respect of those proceedings.

(10)  The person who gave the order may exercise the person’s functions under this section irrespective of whether the person required to comply with the order has been prosecuted for an offence against this Act.

(11)  In any proceedings before the Land and Environment Court that are brought by a person who gave an order against another person as a result of the other person’s failure to comply with the order, the Court may, at any stage of the proceedings, order the person who gave the order to exercise the person’s functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.

(12)  If the Minister or the Director-General gave the order, the Minister’s or Director-General’s functions under this section may be exercised by the corporation.