An Act to amend the Environmental Planning and Assessment Act 1979 and other Acts and instruments to improve the NSW planning system.

1   Name of Act

This Act is the Environmental Planning and Assessment Amendment Act 2008.

2   Commencement

This Act commences on a day or days to be appointed by proclamation.

3   Amendment of Environmental Planning and Assessment Act 1979 No 203 and other Acts and instruments

The Environmental Planning and Assessment Act 1979 and other Acts and instruments specified in Schedules 1–5 are amended as set out in those Schedules.

4   Repeal of Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 No 205

The Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 is repealed.

5   Repeal of Act

(1)  This Act is repealed on the day following the day on which all of the provisions of this Act have commenced.

(2)  The repeal of this Act does not, because of the operation of section 30 of the Interpretation Act 1987, affect any amendment made by this Act.

Schedule 1 Amendments relating to environmental planning

(Section 3)

1.1 Principal amendments to Environmental Planning and Assessment Act 1979

[1]   Section 4 Definitions

Omit the definition of environmental planning instrument from section 4 (1).

Insert instead:

  

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

[2]   Section 4 (1), definition of “regional environmental plan”

Omit the definition.

[3]   Section 4 (1)

Insert in alphabetical order:

  

relevant planning authority:

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

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

[4]   Section 24 Making of environmental planning instruments

Insert at the end of section 24:

  

(2)  Environmental planning instruments may be made:

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

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

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

[5]   Section 26 Contents of environmental planning instruments

Insert before section 26 (4):

  

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

[6]   Section 33A Standardisation of environmental planning instruments

Insert after section 33A (8):

  

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

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

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

[7]   Section 34A

Omit the section. Insert instead:

  

34A   Special consultation procedures concerning threatened species

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

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

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

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

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

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

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

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

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

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

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

[8]   Section 34B

Insert after section 34A:

  

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

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

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

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

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

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

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

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

[9]   Part 3, Division 2

Omit the Division. Insert instead:

  

Division 2 SEPPs

37   Governor may make environmental planning instruments (SEPPs)

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

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

38   Consultation requirements

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

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

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

Note. See also section 34A.

[10]   Part 3, Division 3 Regional environmental plans

Omit the Division.

[11]   Part 3, Divisions 4 and 4A

Omit the Divisions. Insert instead:

  

Division 4 LEPs

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

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

(a)  in each local government area, and

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

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

54   Relevant planning authority

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

56   Gateway determination

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

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

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

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

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

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

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

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

(g)  whether the function under this Division of making a local environmental plan in respect of the matter is to be exercised by the Minister or delegated to the relevant planning authority.

Any such delegation may be set out in the determination or made by a separate instrument.

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

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

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

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

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

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

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

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

57   Community consultation

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

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

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

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

(5)  If:

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

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

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

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

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

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

58   Relevant planning authority may vary proposals or not proceed

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

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

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

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

59   Making of local environmental plan by Minister

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

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

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

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

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

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

60   Regulations

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

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

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

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

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

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

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

[12]   Section 73A Expedited amendments of environmental planning instruments

Insert after section 73A (b):

  

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

[13]   Section 73A (2)

Insert at the end of section 73A:

  

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

[14]   Section 74B Definition (DCPs)

Omit the definition of relevant planning authority from section 74B (1).

Insert instead:

  

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

[15]   Section 74C Preparation of development control plans

Insert “or” at the end of section 74C (1) (c) (iii) and omit section 74C (1) (c) (iv).

1.2 Consequential and other amendments to Environmental Planning and Assessment Act 1979

[1]   Section 4 Definitions

Omit the definition of deemed environmental planning instrument from section 4 (1).

[2]   Section 4 (1), definition of “development control plan”

Omit the definition. Insert instead:

  

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

[3]   Section 4 (1), definition of “local environmental plan”

Omit the definition. Insert instead:

  

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

[4]   Section 4 (1), definition of “State environmental planning policy”

Omit the definition. Insert instead:

  

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

[5]   Section 4 (5)

Omit the subsection. Insert instead:

  

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

[6]   Section 7 Responsibility of Minister

Omit “local environmental plans” from section 7 (b).

Insert instead “environmental planning instruments”.

[7]   Section 25 Statement of aims etc in environmental planning instruments

Omit the section.

[8]   Section 26 Contents of environmental planning instruments

Omit section 26 (2) and (3).

[9]   Section 33A Standardisation of environmental planning instruments

Omit “Any draft of the instrument that is exhibited under this Act is to set out in full the provisions that are adopted.” from section 33A (3).

[10]   Section 33A (9)

Omit “or draft instrument”.

[11]   Section 33B Staged repeal and review of environmental planning instruments

Omit “draft replacement instruments” from section 33B (2) (b).

Insert instead “proposals for replacement instruments”.

[12]   Section 33B (2) (d)

Omit “and regional environmental plans”.

[13]   Section 33B (4)

Omit “The Minister may, by order published in the Gazette, make a local environmental plan”.

Insert instead “The Minister may, under Division 4, make a local environmental plan”.

[14]   Section 33B (5) (a)

Omit “an order making a plan under that subsection is not required to comply with other requirements”.

Insert instead “a local environmental plan made pursuant to that subsection is not required to comply with the conditions precedent in Division 4”.

[15]   Section 33B (5) (b)

Omit the paragraph.

[16]   Section 33B (5) (c)

Omit “draft plans,”.

[17]   Section 36 Inconsistency between instruments

Omit section 36 (1) (a) and (b). Insert instead:

  

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

[18]   Section 72K Joint exhibition of proposed instrument amendment and advertising of application

Omit “the preparation and making of a draft environmental planning instrument” from section 72K (1).

Insert instead “the making of a proposed environmental planning instrument”.

[19]   Section 72K (2)

Omit “the draft environmental planning instrument”.

Insert instead “the documents relating to the proposed environmental planning instrument”.

[20]   Section 72K (3)

Omit “the draft environmental planning instrument proposes to make”.

Insert instead “the proposed environmental planning instrument makes”.

[21]   Section 72L Commission of Inquiry

Omit the section.

[22]   Section 73 Review of environmental planning instruments

Omit “and regional environmental plans,”.

[23]   Section 74 Amendment of environmental planning instruments

Omit section 74 (2).

[24]   Section 74B Definition (DCPs)

Omit “any such draft instrument” from section 74B (2).

Insert instead “any such proposed instrument”.

[25]   Section 79B Consultation and concurrence

Omit “a deemed environmental planning instrument” from section 79B (8).

Insert instead “a deemed instrument referred to in Division 2 of Part 21 of Schedule 6”.

[26]   Section 79C Evaluation

Omit section 79C (1) (a) (ii). Insert instead:

  

(ii)  any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

[27]   Section 94F Conditions requiring land or contributions for affordable housing

Omit “regional environmental plan or” from section 94F (3) (b).

[28]   Section 96A Revocation or modification of development consent

Omit section 96A (1) (a) and (b). Insert instead:

  

(a)  the Director-General, having regard to the provisions of any proposed State environmental planning policy, 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 proposed local environmental plan,

[29]   Section 109A Uses unlawfully commenced

Omit “deemed environmental planning instrument” from section 109A (2).

Insert instead “deemed instrument referred to in Division 2 of Part 21 of Schedule 6”.

[30]   Section 117 Directions by Minister

Omit “draft” from section 117 (2) (a).

[31]   Section 117 (2) (b)

Omit “a draft local environmental plan”. Insert instead “a planning proposal”.

[32]   Section 117 (2A) (b) and (c)

Omit “draft plans” wherever occurring. Insert instead “planning proposals”.

[33]   Section 117 (2B)

Insert after section 117 (2A):

  

(2B)  A reference to a council in subsections (2) and (2A) includes a reference to a relevant planning authority under Division 4 of Part 3 that is not a council.

[34]   Section 117 (5)

Omit “any draft”. Insert instead “any planning proposal”.

[35]   Section 148 Disclosure and misuse of information

Omit “draft” from section 148 (3) (a). Insert instead “proposed”.

[36]   Section 154 Transfer or amalgamation of land to which environmental planning instrument applies

Omit “a draft local environmental plan that has been placed on public exhibition in accordance with section 66” from section 154 (2) (a).

Insert instead “a planning proposal that has been placed on public exhibition in accordance with Division 4 of Part 3”.

[37]   Schedule 6 Savings, transitional and other provisions

Insert in appropriate order in Part 21 (as inserted by Schedule 5.1 [12]):

  

Division 2 Provisions consequent on Schedule 1 to amending Act

119   Definitions

In this Division:

deemed environmental planning instrument means a former environmental 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.

existing local environmental plan means a local environmental plan made under Part 3 of this Act (as in force immediately before the relevant commencement day).

existing regional environmental plan means a regional environmental plan made under Part 3 of this Act (as in force immediately before the relevant commencement day).

existing State environmental planning policy means a State environmental planning policy made under Part 3 of this Act (as in force immediately before the relevant commencement day).

the relevant commencement day means the day on which Schedule 1.1 [4] to the amending Act commences.

120   Continuation in force of existing SEPPs and REPs

All existing State environmental planning policies and existing regional environmental plans are, on the relevant commencement day, taken to be environmental planning instruments made by the Governor under Division 2 of Part 3 of this Act, as amended by the amending Act.

121   Review of existing REPs

(1)  As soon as practicable after the relevant commencement day, the Minister is to review the provisions of all existing regional environmental plans.

(2)  An environmental planning instrument (whether a principal or amending instrument) may be made by the Governor under Division 2 of Part 3 of this Act, or by the Minister under Division 4 of that Part, to transfer those existing environmental planning provisions (with or without modification) to appropriate new or existing principal instruments that apply to the land concerned.

(3)  Any such instrument may be made without compliance with the provisions of Part 3 of this Act relating to the conditions precedent to the making of the instrument.

122   Continuation in force of existing LEPs

(1)  All existing local environmental plans are, on the relevant commencement day, taken to be environmental planning instruments made by the Minister under Division 4 of Part 3 of this Act, as amended by the amending Act.

(2)  The Minister may dispense with any conditions precedent to the making of an environmental planning instrument under that Division if satisfied that the instrument was in the course of preparation before the commencement of this clause.

123   Continuation in force of deemed environmental planning instruments

(1)  All deemed environmental planning instruments that are in force immediately before the relevant commencement day continue in force and have effect according to their tenor.

(2)  Any such instrument may be amended or repealed by an environmental planning instrument made under Part 3 of this Act.

1.3 Amendment of Fisheries Management Act 1994 No 38

Section 221ZK Biodiversity certification

Omit “public exhibition of a draft of the EPI under section 66” and “that section” from section 221ZK (4) (a).

Insert instead respectively “community consultation of the proposed EPI under Part 3” and “that Part”.

1.4 Amendment of Heritage Act 1977 No 136

Part 5 Environmental planning instruments affecting certain land

Omit the Part.

1.5 Amendment of Sydney Water Catchment Management Act 1998 No 171

[1]   Section 31 Function of Tribunal

Omit “with the provisions of the regional environmental plan or plans referred to in section 53” from section 31 (1) (c).

Insert instead “with the provisions of the environmental planning instrument that was made pursuant to section 53 before its repeal and that are currently in force”.

[2]   Section 40 Other documents to be presented to Parliament

Omit section 40 (1) (d).

[3]   Section 48 Regulations concerning special areas

Omit “, including an environmental planning instrument” from section 48 (2).

Insert instead “, other than a SEPP under the Environmental Planning and Assessment Act 1979”.

[4]   Section 52 Regulations concerning controlled areas

Omit “, including an environmental planning instrument” from section 52 (2).

Insert instead “, other than a SEPP under the Environmental Planning and Assessment Act 1979”.

[5]   Part 5, Division 4 Regional environmental plan

Omit the Division.

1.6 Amendment of Threatened Species Conservation Act 1995 No 101

Section 126G Biodiversity certification

Omit “public exhibition of a draft of the EPI under section 66” and “that section” from section 126G (4) (a).

Insert instead respectively “community consultation of the proposed EPI under Part 3” and “that Part”.

1.7 Amendment of Water Management Act 2000 No 92

Section 322 Regulations

Omit “, including an environmental planning instrument” from section 322 (2).

Insert instead “, other than a SEPP”.

1.8 Amendment of Drinking Water Catchments Regional Environmental Plan No 1

Clauses 9 and 23

Omit the clauses.

Schedule 2 Amendments relating to development assessment

(Section 3)

2.1 Principal amendments to Environmental Planning and Assessment Act 1979

[1]   Section 4 Definitions

Omit the definitions of Commission of Inquiry and Commissioner of Inquiry from section 4 (1).

[2]   Section 4 (1), definition of “consent authority”

Omit paragraph (b) of the definition. Insert instead:

  

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

[3]   Section 4 (1)

Insert in alphabetical order:

  

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

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

planning arbitrator means a planning arbitrator listed on the register of planning arbitrators under section 23K.

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

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

[4], [5]   (Repealed)

[6]   Section 23 Delegation

Omit section 23 (1) (c).

[7]   Section 23 (1) (e)

Omit “council, or”. Insert instead “council,”.

[8]   Section 23 (1) (f) and (g)

Omit section 23 (1) (f). Insert instead:

  

(f)  the Planning Assessment Commission, or

(g)  a joint regional planning panel,

[9]   Section 23 (1A) and (1B)

Insert after section 23 (1):

  

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

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

[10]   Section 23 (4), (5) and (6)

Omit “or Director-General” wherever occurring.

Insert instead “, Director-General, Commission or panel”.

[11]   Section 23 (6)

Omit “his or her”. Insert instead “the”.

[12]   Section 23 (8) (a1)

Omit the paragraph. Insert instead:

  

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

[13]   Part 2A

Insert after Part 2:

  

Part 2A Other planning bodies

Division 1 Preliminary

23A   Definitions

In this Part:

Commission means the Planning Assessment Commission.

regional panel means a joint regional planning panel.

Division 2 Planning Assessment Commission

23B   Planning Assessment Commission

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

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

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

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

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

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

23C   Chairperson of Commission

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

Note. The chairperson is appointed under Schedule 3.

23D   Functions of Commission

(1)  The Commission has the following functions:

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

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

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

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

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

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

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

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

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

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

(3)  The Commission cannot employ any staff.

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

(4)  However, the Commission may:

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

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

23E   Reviews by, and procedures of, Commission

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

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

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

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

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

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

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

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

(h)  the provision of information by the Commission.

23F   No appeals against decisions by Commission after public hearings

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

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

(3)  In this section:

appeal includes a review application under Division 7A of Part 4.

Division 3 Joint regional planning panels

23G   Joint regional planning panels

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

(2)  A regional panel has the following functions:

(a)  functions as a consent authority that are conferred on it under an environmental planning instrument,

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

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

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

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

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

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

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

23H   Regulations

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

(a)  the procedures of a regional panel in exercising its functions,

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

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

Division 4 Independent hearing and assessment panels

23I   Independent hearing and assessment panels

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

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

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

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

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

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

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

23J   Regulations

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

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

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

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

Division 5 Planning arbitrators

23K   Planning arbitrators

(1)  A register of planning arbitrators is to be kept by the Director-General.

(2)  A person is to be listed on the register if approved by the Minister.

(3)  The register may designate planning arbitrators for particular local government areas or particular kinds of development, or both.

(4)  A person may be listed as a planning arbitrator if the person has expertise in 1 or more of planning, architecture, heritage, urban design, law or engineering.

(5)  A planning arbitrator is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the arbitrator.

(6)  The Minister may determine that the whole or part of any remuneration payable under this section to a planning arbitrator who is a member of staff of a council is payable to the council, if the planning arbitrator is paid by the council while exercising functions as a planning arbitrator.

23L   Regulations

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

(a)  the requirements for registration and the appointment and removal of planning arbitrators,

(b)  the procedures of planning arbitrators in exercising their functions,

(c)  without limiting paragraph (b), providing that parties are not to be legally represented or are only to be legally represented in specified circumstances,

(d)  without limiting paragraph (b), providing that parties may be represented by a person other than an Australian legal practitioner in specified circumstances,

(e)  regulating the conduct of planning arbitrators,

(f)  regulating the conduct of matters by planning arbitrators in respect of conflicts of interest and prohibiting planning arbitrators from determining matters if there is a conflict of interest,

(g)  complaints about planning arbitrators, including actions to be taken in relation to complaints and planning arbitrators,

(h)  the provision of information or reports by planning arbitrators and councils with respect to functions exercised by planning arbitrators.

Division 6 Matters relating to councils and council functions

23M   Obligation to consult with council about certain decisions

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

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

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

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

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

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

Maximum penalty: 10 penalty units.

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

Maximum penalty: 10 penalty units.

23O   Recovery of certain costs

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

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

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

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

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

(4)  A council is to pay to the Director-General, out of the council’s consolidated fund, the remuneration, costs and expenses of a planning arbitrator appointed to carry out a review of a matter for which the council is the consent authority.

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

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

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

23P   Indemnity

A council must indemnify a planning arbitrator appointed by it to determine a matter against a liability for costs incurred by the planning arbitrator with respect to an appeal concerning a matter under section 97 or 123.

[14]   Section 75F Environmental assessment requirements for approval

Omit “relevant public authorities” from section 75F (4).

Insert instead “such public authorities as relevant guidelines in respect of the project require to be consulted”.

[15]   Section 76A Development that needs consent

Insert “, or a class of development,” after “development” where firstly occurring in section 76A (5).

[16]   Section 76A (6)

Omit the subsection.

[17]   Section 78A Application

Insert at the end of section 78A (8) (b), before the note:

  

, or

(c)  if the application is in respect of development not referred to in paragraph (a) or (b), a statement of environmental effects prepared by or on behalf of an applicant in accordance with the regulations.

[18]   Section 79AA

Insert after section 79A:

  

79AA   Public participation—other development subject to objector reviews

(1)  This section applies to development applications of a class in respect of which a review application may be made under section 96E.

(2)  Regulations may be made for or with respect to the following:

(a)  notice of development applications to which this section applies,

(b)  submissions to the consent authority about development applications to which this section applies.

[19]   Section 79C Evaluation

Insert after section 79C (1):

  

(1A) Rejection of submissions—development (other than designated development) subject to objector review
A consent authority determining a development application of a class in respect of which a review application may be made under section 96E may reject a submission that it considers has been made primarily to secure or maintain a direct or indirect commercial advantage for the objector. If an objection is rejected under this subsection, this Act applies as if the objection had not been made.

[20]   Section 80A Imposition of conditions

Omit “section 97” from section 80A (3).

Insert instead “section 96C, 96D or 97”.

[21]   Section 80A (10B)–(10E)

Insert in appropriate order in section 80A:

  

(10B) Review of extended hours of operation and number of persons permitted
A development consent that is granted subject to a reviewable condition may be granted subject to a further condition that the consent authority may review that condition at any time or at intervals specified by the consent and that the reviewable condition may be changed on any such review.

(10C)  The regulations may make provision for or with respect to the kinds of development that may be subject to a further condition referred to in subsection (10B), the matters that must be included in such a condition and the procedures for a review under such a condition.

(10D)  A decision by a consent authority to change a reviewable condition on a review is taken to be a determination of a development consent for the purposes of this Act.

Note. A review application or an appeal against a determination of a development consent may be made under Division 7A or 8.

(10E)  For the purposes of subsections (10B)–(10D), a reviewable condition means any of the following:

(a)  a condition that permits extended hours of operation (in addition to other specified hours of operation),

(b)  a condition that increases the maximum number of persons permitted in a building (in addition to the maximum number otherwise permitted).

[22]   Part 4, Division 3

Omit the note after the heading to the Division.

[23]   Section 85A Process for obtaining complying development certificates

Omit section 85A (2).

[24]   Section 85A (8)

Omit “7 days”. Insert instead “the period prescribed by the regulations”.

[25]   Section 85A (11) (c)

Insert at the end of section 85A (11) (b):

  

, and

(c)  if the determination is to issue a complying development certificate, the council or accredited certifier must notify any other person, if required to do so by the regulations, in accordance with the regulations.

[26]   Section 86A Duration of complying development certificate

Insert after section 86A (4):

  

(5)  The regulations may set out circumstances in which work is or is not taken to be physically commenced for the purposes of this section.

[27]   Part 4, Division 4

Insert after Division 3:

  

Division 4 Crown developments

88   Definitions

(1)  In this Division:

applicable regional panel for development means the regional panel for the part of the State in which the development is to be carried out.

Crown development application means a development application made by or on behalf of the Crown.

regional panel means a joint regional planning panel.

(2)  A reference in this Division to the Crown:

(a)  includes a reference to a person who is prescribed by the regulations to be the Crown for the purposes of this Division, and

(b)  does not include a reference to:

(i)  a capacity of the Crown that is prescribed by the regulations not to be the Crown for the purposes of this Division, or

(ii)  a person who is prescribed by the regulations not to be the Crown for the purposes of this Division.

89   Determination of Crown development applications

(1)  A consent authority (other than the Minister) must not:

(a)  refuse its consent to a Crown development application, except with the approval of the Minister, or

(b)  impose a condition on its consent to a Crown development application, except with the approval of the applicant or the Minister.

(2)  If the consent authority fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the consent authority may refer the application:

(a)  to the Minister, if the consent authority is not a council, or

(b)  to the applicable regional panel, if the consent authority is a council.

(3)  An applicable regional panel to which a Crown development application is referred may exercise the functions of the council as a consent authority (subject to subsection (1)) with respect to the application.

(4)  A decision by a regional panel in determining a Crown development application is taken for all purposes to be the decision of the council.

(5)  If an applicable regional panel fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the panel may refer the application to the Minister.

(6)  The party that refers an application under this section must notify the other party in writing that the application has been referred.

(7)  When an application is referred under this section to an applicable regional panel or the Minister, the consent authority must, as soon as practicable, submit to the panel or the Minister:

(a)  a copy of the development application, and

(b)  details of its proposed determination of the development application, and

(c)  the reasons for the proposed determination, and

(d)  any relevant reports of another public authority.

89A   Directions by Minister

(1)  On a referral being made by a consent authority or an applicable regional panel to the Minister under this Division, the Minister may direct the relevant consent authority, within the time specified in the direction:

(a)  to approve the Crown development application, with or without specified conditions, or

(b)  to refuse the Crown development application.

(2)  A consent authority must comply with a direction by the Minister.

(3)  If the consent authority fails to comply, the consent authority is taken, on the last date for compliance specified in the direction, to have determined the Crown development application in accordance with the Minister’s direction.

(4)  Despite subsection (2), a consent authority may vary a condition specified by the Minister with the approval of the applicant.

89B   Modification of Crown development consents

This Division applies to an application made by or on behalf of the Crown under section 96 in the same way as it applies to an application for development consent.

89C   Applicant’s rights of appeal

This Division does not affect any right of an applicant to seek a review or to appeal under Division 7A or 8.

[28]   Section 95 Lapsing of consent

Insert “However, the consent does lapse if that work is not substantially commenced within 2 years after that date.” after “this section.” in section 95 (4).

[29]   Section 95 (7)

Insert after section 95 (6):

  

(7)  The regulations may set out circumstances in which work is or is not taken to be substantially or physically commenced for the purposes of this section.

[30]   Section 95A Extension of lapsing period for 1 year

Insert after section 95A (1):

  

(1A)  If, in granting a development consent that is subject to a deferred commencement condition under section 80 (3), the consent authority specifies a shorter period than 5 years within which the consent will lapse if it is not satisfied as to the matter specified in the condition, 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.

[31]   Section 95A (3)

Omit “subsection (1)”. Insert instead “this section”.

[32]   Section 96 Modification of consents—generally

Omit “(5), (6) and (7)” from section 96 (1).

Insert instead “(5) and (6) and Divisions 7A and 8”.

[33]   Section 96 (3A)

Insert after section 96 (3):

  

(3A)  For the purposes of the application of section 79C (1) under subsection (3):

(a)  the consent authority must treat the application for modification as if it were an application for development consent made at the time the consent authority is determining the application for modification, and

(b)  without limiting paragraph (a), the provisions of any environmental planning instrument apply to the application for modification as if it were an application for development consent.

[34]   Section 96 (6)

Omit section 96 (6) and (7). Insert instead:

  

(6) Deemed refusals
The regulations may make provision for or with respect to the following:

(a)  the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent,

(b)  the effect of any such deemed determination on the power of a consent authority to determine any such application,

(c)  the effect of a subsequent determination by a consent authority on any review or appeal sought under this Act.

[35]   Section 96AA Modification by consent authorities of consents granted by the Court

Omit section 96AA (3) and (4). Insert instead:

  

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

(a)  the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent,

(b)  the effect of any such deemed determination on the power of a consent authority to determine any such application,

(c)  the effect of a subsequent determination by a consent authority on any review or appeal sought under this Act.

[36]   Part 4, Division 7A:

Insert after Division 7 of Part 4:

  

Division 7A Reviews of development application determinations by bodies other than the Land and Environment Court

96B   Definitions

In this Division:

applicable regional panel for development means the regional panel for the part of the State in which the development is to be carried out.

Commission means the Planning Assessment Commission.

deemed refusal:

(a)  in relation to a development application, means a refusal of a development application taken to have been determined under section 82 (1), or

(b)  in relation to an application to modify a development consent, means a refusal of an application taken to have been determined in accordance with regulations made under section 96 (6) or 96AA (3).

planning arbitrator matter means:

(a)  a class of reviewable determinations that is prescribed by the regulations for the purposes of this definition, or

(b)  a determination by a council that a development application may not be considered because further information is required or it does not comply with the provisions of this Act or the regulations.

regional panel means a joint regional planning panel.

review application means an application for a review under this Division.

reviewable determination means:

(a)  a determination of a development application (including a deemed refusal), or

(b)  a determination of an application to modify a development consent (including a deemed refusal), or

(c)  a determination by a consent authority, or a person specified by the consent authority, that the consent authority or person is not satisfied (pursuant to a condition imposed under section 80A (2)) as to a specified aspect of a development that is to be carried out to the satisfaction of the consent authority or person, or

(d)  a determination that a consent authority is not satisfied as to a matter that it must be satisfied about before a “deferred commencement” consent under section 80 (3) can operate,

other than a determination of a class prescribed by the regulations for the purposes of this definition.

reviewing body means a planning arbitrator, a regional panel or the Commission.

96C   Applications for review of planning arbitrator matters—applicants

(1)  The applicant in relation to a planning arbitrator matter may apply to the council for a review of the determination.

(2)  An application for a review of a planning arbitrator matter must be made within the period prescribed by the regulations.

(3)  The council must notify the Director-General of a review application made under this section as soon as practicable.

(4)  The Director-General must appoint a planning arbitrator to determine an application for a review of a planning arbitrator matter.

(5)  The Director-General may appoint more than one planning arbitrator to review a matter, if the Director-General thinks it appropriate to do so in the circumstances.

(6)  An applicant may amend the development the subject of the original application.

(7)  The prescribed fee must be paid in connection with a review application.

(8)  An application for a review of a reviewable determination cannot be made under this section if an appeal under section 97 (5) has been made against the determination.

96D   Applications for reviews of other matters—applicants

(1)  The applicant in relation to a development application determined by a council (other than a planning arbitrator matter), that is of a class prescribed by the regulations for the purposes of this section, may apply to the council for a review of the determination.

(2)  An application for a review under this section must be made within the period prescribed by the regulations.

(3)  The review must be carried out:

(a)  if the determination was made by the council, by the council, or

(b)  if the determination was made by a delegate of the council, by the council or a delegate of the council who is not subordinate to the delegate who made the determination.

(4)  An applicant may amend the development the subject of the original application.

(5)  The prescribed fee must be paid in connection with a review application.

(6)  An application for a review under this section cannot be made if an appeal has been made against the determination under section 97.

96E   Applications for review—objectors

(1)  This section applies to development applications of a class prescribed by the regulations for the purposes of this section.

(2)  Without limiting subsection (1), a class of development application may be described by reference to whether, or to what extent, the relevant development fails to meet any applicable development standards.

(3)  A person (an objector) may make an application under this section if:

(a)  the person is not an applicant and has made a submission objecting to the development in accordance with regulations made under section 79AA, and

(b)  the person owns land within 1 kilometre of any point on the boundary of the land the subject of the development application or is currently occupying any such land and has been an occupant for at least 6 months.

(4)  An objector who is dissatisfied with a determination of a council to grant consent to a development application either unconditionally or subject to conditions may apply to the applicable regional panel for a review of the determination.

(5)  An objector who is dissatisfied with a determination of a regional panel to grant consent to a development application either unconditionally or subject to conditions may apply to the Commission for a review of the determination.

(6)  An application for a review of a determination under this section must be made within 28 days after the date on which notice of the determination was given in accordance with the regulations.

(7)  An applicant may amend the development the subject of the original application.

(8)  The prescribed fee must be paid in connection with a review application.

(9)  The regulations may limit the persons who are qualified to apply for reviews under this section.

(10)  This section does not apply to planning arbitrator matters or to the following development applications:

(a)  a development application in relation to which an appeal may be made by an objector under section 98,

(b)  a development application relating to integrated development,

(c)  a Crown development application (within the meaning of Division 4).

96F   Notification of review applications

(1)  A council, a regional panel or the Commission must notify a review application in accordance with the regulations, if the regulations so require.

(2)  The regulations may provide that a person given notice under this section is entitled to be heard on the review application.

96G   Procedures for reviews and determinations—applicant and objector reviews

(1)  A review under this Division by a reviewing body:

(a)  must be held within the period prescribed by the regulations and must be determined within the period prescribed by the regulations, and

(b)  is to be conducted in accordance with the regulations (if any) or any procedures determined by the Minister.

(2)  Before determining a review application, the reviewing body must consider any submissions made concerning the request for review within any period prescribed by the regulations.

(3)  The reviewing body may consider additional matters not considered by the consent authority in determining the original application.

(4)  If the applicant has made amendments to the development described in the original application, the reviewing body may only conduct a review of a determination of a development application if satisfied that the development, as amended, is substantially the same development as the development described in the original application.

(5)  If an appeal is made under section 97 in respect of a reviewable determination that is already the subject of a review application under section 96C or 96D, the determination cannot be reviewed after the determination is disposed of by the Court.

Note. A review application may not be made under section 96C or 96D if an appeal has already been made to the Court.

(6)  If review applications concerning the same matter are made under sections 96D and 96E, the applications are to be dealt with together and determined by the regional panel reviewing the application under section 96E. A council may not determine a review application under section 96D if an application concerning the same matter is made under section 96E.

96H   Review bodies to have consent authority functions for review

(1)  A reviewing body has the same functions as the consent authority had, in relation to the original determination or application, for the purposes of determining a review application.

(2)  A decision by a reviewing body in determining a review application is taken for all purposes to be the decision of the consent authority.

(3)  This section has effect even if the appointment of a reviewing body or a member of a reviewing body is subsequently found not to have been validly made.

96I   Review of unaccepted applications by planning arbitrators

(1)  If a planning arbitrator determines that a development application that was not accepted by a council should have been dealt with by the council, the planning arbitrator must refer the application to the council for determination.

(2)  The council must determine an application that is referred to it under this section.

96J   Decisions on reviews and determinations

(1)  The reviewing body must, in accordance with the regulations, give notice of the result of its determination of a review application:

(a)  to the person who applied for the review, and

(b)  if the person was not the applicant for the determination reviewed, to the applicant, and

(c)  in the case of a development application in respect of which a person other than the applicant may make a review application (a third party matter), each person who made a submission to the consent authority in accordance with regulations made under section 79AA.

(2)  In the case of a third party matter, the reviewing body must also notify each person who made a submission 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.

(3)  If the reviewing body grants development consent, or varies the conditions of a development consent or otherwise modifies a development consent, the reviewing body must endorse on the notice the date from which the consent, or the consent as varied, operates.

(4)  If the reviewing body changes a determination, the changed determination replaces the earlier determination as from the date of the review.

(5)  If on a review under section 96C or 96D 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.

(6)  A decision on a review application may not be further reviewed by a reviewing body under this Division.

(7)  Subsection (5) does not prevent a review of a determination of a development application by a council following a decision by a planning arbitrator that the council must determine the application.

96K   Circumstances in which review application is taken to have been refused

(1)  A planning arbitrator that has not determined a review application within the period prescribed for the purposes of section 96G (1) 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)  If a planning arbitrator is not appointed to determine a planning arbitrator matter within the period prescribed by the regulations, the application for the review is, for the purpose only of section 97, taken to have been determined by refusing consent on the date on which the period expires.

(3)  Nothing in subsection (1) or (2) prevents a planning arbitrator from determining a review application after the relevant period on a review under this Division.

(4)  A determination pursuant to subsection (3) does not, subject to subsection (5), 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) or (2) to have been made.

(5)  If a determination pursuant to subsection (3) is made by granting consent, the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have an application for review made before that consent in respect of a failure to determine the matter withdrawn at any time prior to the determination of that application or appeal.

Note. An appeal under section 97 may also be withdrawn, see section 96I (5).

96L   Improper influence with respect to conduct of planning arbitrator

(1)  A planning arbitrator must not, on an understanding that he or she will act otherwise than impartially in the exercise of his or her functions as a planning arbitrator, seek or accept, or offer or agree to accept, any benefit of any kind, whether on his or her own behalf or on behalf of any other person.

Maximum penalty: 10,000 penalty units or imprisonment for 2 years, or both.

(2)  A person must not, on an understanding that a planning arbitrator will act otherwise than impartially in the exercise of his or her functions as a planning arbitrator, give, or offer or agree to give, any benefit of any kind, whether to the planning arbitrator or to any other person.

Maximum penalty: 10,000 penalty units or imprisonment for 2 years, or both.

[37]   Sections 97–97B

Omit section 97. Insert instead:

  

97   Appeal by an applicant—development applications

(1) Development application determinations (other than planning arbitrator matters)
An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant’s development application (other than in relation to a planning arbitrator matter), including a determination on a review under section 96D, may appeal to the Court within 3 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) Determinations as to modifications of consents (other than planning arbitrator matters)
An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant’s application under section 96 or 96AA (other than in relation to a planning arbitrator matter) may appeal to the Court within 3 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 the applicant’s application is taken to have been determined in accordance with regulations made under section 96 (6) or 96AA (3).

(3) Determinations relating to ancillary aspects of consent (other than planning arbitrator matters)
An applicant who is dissatisfied with a decision (other than in relation to a planning arbitrator matter) that a consent authority, or a person specified by the consent authority, is not satisfied (pursuant to a condition imposed under section 80A (2)) as to a specified aspect of the development that is to be carried out to the satisfaction of the consent authority or person may appeal to the Court within 3 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).

(4) Determinations relating to deferred consents (other than planning arbitrator matters)
An applicant who is dissatisfied with a decision (other than in relation to a planning arbitrator matter) that a consent authority is not satisfied as to a matter that it must be satisfied about before a “deferred commencement” consent under section 80 (3) can operate may appeal to the Court within 3 months after the consent authority notifies the applicant of its decision.

(5) Planning arbitrator matters where consent authority consents to appeal
An applicant in a planning arbitrator matter who is dissatisfied with the determination of a consent authority with respect to the matter may, with the consent of the consent authority, appeal to the Court within 3 months after:

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

(b)  the date on which the matter is taken to have been determined under an applicable provision of this Act or the regulations.

(6) Determinations by planning arbitrators
An applicant in a planning arbitrator matter who is dissatisfied with the determination of a planning arbitrator with respect to the matter may appeal to the Court within 3 months after:

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

(b)  the date on which the applicant’s application is taken to have been determined under section 96K.

(7) Appeals to be heard after expiry of objector appeal period
An appeal under this section relating to a development application for consent to carry out designated development or development in respect of which a review application may be made under section 96E, 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 that section or make a review application.

(8) Interpretation
Words and expressions used in this section have the same meaning as they have in Division 7A.

97A   Notice of appeals to be given and right to be heard

(1)  The consent authority must give notice of an appeal under section 97:

(a)  to an objector, in the case of an appeal concerning a development application in respect of which the objector may appeal under section 98 or make a review application under section 96E, or

(b)  to the relevant Minister or public authority, in the case of an appeal concerning a development application in relation to which the concurrence of a Minister or public authority is required under this Act, or

(c)  to the relevant approval body (within the meaning of Division 5), in the case of a development application for consent to carry out integrated development that involves the approval body.

(2)  A person or body who is given notice of an appeal under this section 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 person or body were a party to the appeal.

97B   Costs payable if amended development application filed

(1)  This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment).

(2)  In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal.

(3)  The regulations may provide for circumstances in which subsection (2) does not apply.

(4)  This section has effect despite the provisions of any other Act or law.

[38]   Section 99 Joint hearing of certain appeals

Insert after section 99 (3):

  

(4)  If an appeal is made under section 97 with respect to a development application and a review application is made under section 96E with respect to the same application, the review application is to be dealt with by the Court as if it were an appeal under section 98 and is, as far as practicable, to be heard together with the appeal under section 97.

[39]   Section 118 Appointment of planning administrator, planning assessment panel or regional panel

Omit “or a panel (or both)” from section 118 (1).

Insert instead “, a planning assessment panel or a regional panel (or all of them)”.

[40]   Section 118 (3)

Omit “panel”. Insert instead “planning assessment panel or regional panel”.

[41]   Section 118 (3) (a)

Omit “under Part 4”.

[42]   Section 118 (3) (b)

Insert “or under Division 1 of Part 2 of Chapter 6 of the Local Government Act 1993” after “Part 3”.

[43]   Section 118 (4)

Omit “panel”. Insert instead “planning assessment panel or regional panel”.

[44]   Section 118 (5) and (7)

Omit “panel” wherever occurring. Insert instead “planning assessment panel”.

[45]   Section 118 (7A)–(7C)

Insert after section 118 (7):

  

(7A)  Functions are to be conferred on a regional panel under this section by order of the Minister published in the Gazette.

(7B)  Before appointing a planning administrator or planning assessment panel, or conferring functions under this section on a regional panel, the Minister must notify the council concerned in writing of the proposed action (including the reasons for the proposed action) and request the council to show cause why the action should not be taken.

(7C)  The Minister must consider any written submissions made by the council within 21 days of notice being given under subsection (7B) and must not take action under this section earlier than 21 days after the notice is given.

[46]   Section 118 (8)

Omit “panel”.

Insert instead “a planning assessment panel, or conferring functions on a regional panel under this section”.

[47]   Section 118 (9)

Omit “panel”.

Insert instead “planning assessment panel, or confer functions on a regional panel under this section,”.

[48]   Section 118 (9)

Omit “those heads of consideration”.

Insert instead “any of those heads of consideration that are relevant”.

[49]   Section 118 (10)

Omit “make an appointment under subsection (1) (d)”.

Insert instead “take action under this section in the circumstances specified in subsection (1) (d)”.

[50]   Section 118 (11)

Omit “panel”.

Insert instead “planning assessment panel, or conferring functions on a regional panel under this section”.

[51]   Section 118 (12), definition of “failure to comply with obligations under the planning legislation”

Insert at the end of paragraph (b):

  

, or

(c)  without limiting paragraph (a), a failure to comply with a determination under section 56, or

(d)  without limiting paragraph (a), a failure to provide access to and the use of staff and facilities to the Planning Assessment Commission, a joint regional planning panel or a planning arbitrator as referred to in section 23N (1).

[52]   Section 118AD Council to assist planning administrator or panel

Insert after section 118AD (2):

  

(2A)  The general manager of a council must carry out any reasonable direction of the planning administrator or planning assessment panel relating to functions of the council being exercised by the planning administrator or panel.

Maximum penalty: 10 penalty units.

[53]   Section 118AG

Insert after section 118AF:

  

118AG   Protection for exercise of certain functions by Minister

(1)  This section applies to any function (a protected function) conferred or imposed on the Minister (including a delegate of the Minister) relating to the appointment of a planning administrator or planning assessment panel, or the conferral of functions on a regional panel, under this Division.

(2)  The exercise by the Minister of any protected function may not be:

(a)  challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings, or

(b)  restrained, removed or otherwise affected by any proceedings.

(3)  Without limiting subsection (2), that subsection applies whether or not the proceedings relate to any question involving compliance or non-compliance, by the Minister (including a delegate of the Minister), with the provisions of this Division or the rules of natural justice (procedural fairness).

(4)  Accordingly, no court of law or administrative review body has jurisdiction or power to consider any question involving compliance or non-compliance, by the Minister (including a delegate of the Minister), with those provisions or with those rules so far as they apply to the exercise of any protected function.

(5)  This section has effect despite any provision of this Act or other legislation or any other law (whether written or unwritten).

(6)  In this section:

exercise of functions includes:

(a)  the purported exercise of functions, and

(b)  the non-exercise or improper exercise of functions, and

(c)  the proposed, apprehended or threatened exercise of functions.

proceedings includes:

(a)  proceedings for an order under section 124, and

(b)  proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, and

(c)  without limiting paragraph (b), proceedings in the exercise of the inherent jurisdiction of the Supreme Court or the jurisdiction conferred by section 23 of the Supreme Court Act 1970.

[54]   Section 158 Exclusion of personal liability

Omit section 158 (d)–(g). Insert instead:

  

(d)  a member of the Planning Assessment Commission, a joint regional planning panel or an independent hearing and assessment panel, or

(e)  a planning arbitrator, or

(f)  any person acting under the direction of a person or body referred to in paragraph (a)–(e),

[55]   Section 158

Omit “the Commissioner of Inquiry”.

Insert instead “a planning arbitrator, a member”.

[56]   Schedules 3 and 4

Omit Schedules 3 and 5. Insert instead:

  

Schedule 3 Planning Assessment Commission

(Section 23B (5))

Part 1 General

1   Definitions

In this Part:

chairperson means the person appointed by the Minister as the chairperson of the Commission.

Commission means the Planning Assessment Commission.

member means a member of the Commission.

Part 2 Members

2   Members

(1)  The Commission is to consist of the chairperson and not less than 3 members and not more than 8 members appointed by the Minister.

(2)  One member of the Commission is, in the instrument of appointment, to be appointed as chairperson of the Commission.

(3)  Each member is to have expertise in at least 1 of planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering, tourism or government and public administration.

(4)  In appointing a member of the Commission, the Minister is to have regard to the need to have a range of expertise represented among the Commission’s members.

3   Additional casual members

The Minister may appoint additional members of the Commission for the purposes of exercising specific functions of the Commission. A casual member is not required to have expertise in an area referred to in clause 2 but is required to have expertise in an area relevant to the functions the member is to exercise.

4   Constitution of Commission for particular matters

(1)  For the purpose of carrying out any of its functions, the Commission is to be constituted by 3 members. The regulations may prescribe circumstances in which the Commission may be constituted by more than 3 members or less than 3 members.

(2)  The members for the purpose of exercising a function of the Commission are, subject to any directions of the Minister, to be determined by the chairperson.

(3)  The Commission may, at any time, exercise by the same members or different members, one or more of its functions.

(4)  For the purpose of exercising any of its functions, the Commission is to be constituted by specified members, or members with specified qualifications or expertise, if a direction to that effect is given by the Minister.

5   Terms of office of members

(1)  Subject to this Part and the regulations, a member holds office for such period (not exceeding 3 years) as is specified in the member’s instrument of appointment.

(2)  The period under subclause (1) may be determined by reference to the occurrence of a specified event or the completion of the exercise of particular functions of the Commission.

(3)  A member is eligible to be re-appointed.

6   Basis of office

(1)  The office of chairperson may be a full-time or a part-time office.

(2)  The office of any other member is a part-time office.

7   Remuneration

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

8   Vacancy in office of member

(1)  The office of a member becomes vacant if the member:

(a)  dies, or

(b)  completes a term of office and is not re-appointed, or

(c)  resigns the office by instrument in writing addressed to the Minister, or

(d)  is removed from office by the Governor under Chapter 5 of the Public Sector Employment and Management Act 2002, or

(e)  is absent from 3 consecutive meetings of the Commission of which reasonable notice has been given to the member personally or by post, except on leave granted by the Commission or unless the member is excused by the Commission for having been absent from those meetings, or

(f)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or

(g)  becomes a mentally incapacitated person, or

(h)  is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable.

(2)  The Minister may remove a member from office if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the removal of the member from office because of corrupt conduct by the member.

9   Filling of vacancy in office of member

If the office of a member becomes vacant, a person may, subject to this Act and the regulations, be appointed to fill the vacancy.

10   Chairperson

The chairperson vacates office as chairperson if he or she:

(a)  is removed from that office by the Minister, or

(b)  resigns that office by instrument in writing addressed to the Minister, or

(c)  ceases to be a member of the Commission.

11   Disclosure of pecuniary interests

(1)  If:

(a)  a member has a pecuniary interest in a matter being considered or about to be considered at a meeting of the Commission, and

(b)  the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter,

      the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the Commission.

(2)  A member has a pecuniary interest in a matter if the pecuniary interest is the interest of:

(a)  the member, or

(b)  the member’s spouse or de facto partner or a relative of the member, or a partner or employer of the member, or

(c)  a company or other body of which the member, or a nominee, partner or employer of the member, is a member.

(3)  However, a member is not taken to have a pecuniary interest in a matter as referred to in subclause (2) (b) or (c):

(a)  if the member is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative, partner, employer or company or other body, or

(b)  just because the member is a member of, or is employed by, a council or a statutory body or is employed by the Crown, or

(c)  just because the member is a member of, or a delegate of a council to, a company or other body that has a pecuniary interest in the matter, so long as the member has no beneficial interest in any shares of the company or body.

(4)  A disclosure by a member at a meeting of the Commission that the member, or a spouse, de facto partner, relative, partner or employer of the member:

(a)  is a member, or is in the employment, of a specified company or other body, or

(b)  is a partner, or is in the employment, of a specified person, or

(c)  has some other specified interest relating to a specified company or other body or to a specified person,

      is a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under subclause (1).

(5)  Particulars of any disclosure made under this clause must be recorded by the Commission in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person on payment of the fee determined by the Commission.

(6)  After a member has disclosed the nature of an interest in any matter, the member must not, unless the Minister or the Commission otherwise determines:

(a)  be present during any deliberation of the Commission with respect to the matter, or

(b)  take part in any decision of the Commission with respect to the matter.

(7)  For the purposes of the making of a determination by the Commission under subclause (6), a member who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not:

(a)  be present during any deliberation of the Commission for the purpose of making the determination, or

(b)  take part in the making by the Commission of the determination.

(8)  A contravention of this clause does not invalidate any decision of the Commission.

12   Effect of certain other Acts

(1)  Chapter 2 of the Public Sector Employment and Management Act 2002 does not apply to or in respect of the appointment of a member.

(2)  If by or under any Act provision is made:

(a)  requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or

(b)  prohibiting the person from engaging in employment outside the duties of that office,

      the provision does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as a member.

Schedule 4 Joint Regional Planning Panels

(Section 23G (6))

Part 1 General

1   Definitions

In this Part:

applicable council means the council of an area that is situated (wholly or partly) in a part of the State for which a regional panel is appointed.

chairperson means the person appointed by the Minister as the chairperson of a joint regional planning panel.

council nominee means a person nominated as a member of a regional panel by an applicable council.

member means a member of a regional panel.

regional panel means a joint regional planning panel.

State member means a member appointed by the Minister.

Part 2 Members

2   Members

(1)  A regional panel is to consist of the following 5 members:

(a)  3 persons appointed by the Minister, each having expertise in at least 1 of planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering, tourism or government and public administration,

(b)  2 council nominees of an applicable council, at least one of whom has expertise in planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering or tourism.

(2)  One State member is, in the instrument of appointment, to be appointed as chairperson of the regional panel.

(3)  In appointing a State member, the Minister is to have regard to the need to have a range of expertise represented among the panel’s members.

(4)  Each applicable council is to nominate 2 persons as council nominees for the purposes of the regional panel, at least one of whom has expertise in planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering or tourism.

(5)  If an applicable council fails to nominate 1 or more council nominees, a regional panel is not required to include 2 council nominees for the purposes of exercising its functions in relation to the area of the council concerned.

3   Rotation of council nominees

(1)  For the purposes of exercising the functions of a regional panel in relation to a matter, the council nominees appointed to the regional panel are to be those nominated by the applicable council for the land to which the matter relates.

(2)  Subject to this Part, a council nominee remains eligible to participate as a member of the regional panel for such period (not exceeding 3 years) as is specified in the nominee’s instrument of nomination, but is eligible (if otherwise qualified) for re-nomination.

4   Terms of office of State members

(1)  Subject to this Part, a State member holds office for such period (not exceeding 3 years) as is specified in the member’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.

(2)  The period under subclause (1) may be determined by reference to the occurrence of a specified event.

5   Basis of office

The office of a member is a part-time office.

6   Remuneration

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

7   Deputy chairperson

(1)  The members of a regional panel may elect a State member to be the deputy chairperson of the regional panel.

(2)  The person may be elected for the duration of the person’s term of office as a member or for a shorter term.

8   Alternates

(1)  The Minister may, from time to time, appoint a person to be the alternate of a State member, and may revoke any such appointment.

(2)  An applicable council may, from time to time, appoint a person to be the alternate of a member nominated by the council, and may revoke any such appointment.

(3)  In the absence of a member, the member’s alternate may, if available, act in the place of the member.

(4)  While acting in the place of a member, a person has all the functions of the member and is taken to be a member.

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

(6)  A person may be appointed as the alternate of 2 or more members, but has only one vote at any meeting of the regional panel.

9   Vacancy in office of member

(1)  The office of a member becomes vacant if the member:

(a)  dies, or

(b)  completes a term of office and is not re-appointed, or

(c)  resigns the office by instrument in writing addressed to the Minister or applicable council, as the case requires, or

(d)  in the case of a council nominee, is removed from office by an applicable council under this clause or by the Minister under subclause (2), or

(e)  in the case of a State member, is removed from office by the Minister or by the Governor under Chapter 5 of the Public Sector Employment and Management Act 2002, or

(f)  is absent from 3 consecutive meetings of the regional panel of which reasonable notice has been given to the member personally or by post, except on leave granted by the panel or unless the member is excused by the panel for having been absent from those meetings, or

(g)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or

(h)  becomes a mentally incapacitated person, or

(i)  is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable.

(2)  The Minister may remove a member from office if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the removal of the member from office because of corrupt conduct by the member.

(3)  The Minister may remove a State member from office for any or no reason and without notice.

(4)  An applicable council may remove any of its council nominees from office for any or no reason and without notice.

10   Filling of vacancy in office of member

If the office of a member becomes vacant, a person may, subject to this Act and the regulations, be appointed to fill the vacancy.

11   Chairperson

(1)  The chairperson vacates office as chairperson if he or she:

(a)  is removed from that office by the Minister, or

(b)  resigns that office by instrument in writing addressed to the Minister, or

(c)  ceases to be a member of the regional panel.

(2)  The Minister may at any time remove the chairperson from office as chairperson for any or no reason and without notice.

12   Disclosure of pecuniary interests

(1)  If:

(a)  a member has a pecuniary interest in a matter being considered or about to be considered at a meeting of the regional panel, and

(b)  the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter,

      the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the regional panel.

(2)  A member has a pecuniary interest in a matter if the pecuniary interest is the interest of:

(a)  the member, or

(b)  the member’s spouse or de facto partner or a relative of the member, or a partner or employer of the member, or

(c)  a company or other body of which the member, or a nominee, partner or employer of the member, is a member.

(3)  However, a member is not taken to have a pecuniary interest in a matter as referred to in subclause (2) (b) or (c):

(a)  if the member is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative, partner, employer or company or other body, or

(b)  just because the member is a member of, or is employed by, a council or a statutory body or is employed by the Crown, or

(c)  just because the member is a member of, or a delegate of a council to, a company or other body that has a pecuniary interest in the matter, so long as the member has no beneficial interest in any shares of the company or body.

(4)  A disclosure by a member at a meeting of the regional panel that the member, or a spouse, de facto partner, relative, partner or employer of the member:

(a)  is a member, or is in the employment, of a specified company or other body, or

(b)  is a partner, or is in the employment, of a specified person, or

(c)  has some other specified interest relating to a specified company or other body or to a specified person,

      is a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under subclause (1).

(5)  Particulars of any disclosure made under this clause must be recorded by the regional panel in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person on payment of the fee determined by the regional panel.

(6)  After a member has disclosed the nature of an interest in any matter, the member must not, unless the Minister or the regional panel otherwise determines:

(a)  be present during any deliberation of the panel with respect to the matter, or

(b)  take part in any decision of the panel with respect to the matter.

(7)  For the purposes of the making of a determination by the regional panel under subclause (6), a member who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not:

(a)  be present during any deliberation of the panel for the purpose of making the determination, or

(b)  take part in the making by the panel of the determination.

(8)  A contravention of this clause does not invalidate any decision of the regional panel.

13   Effect of certain other Acts

(1)  Chapter 2 of the Public Sector Employment and Management Act 2002 does not apply to or in respect of the appointment of a member.

(2)  If by or under any Act provision is made:

(a)  requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or

(b)  prohibiting the person from engaging in employment outside the duties of that office,

      the provision does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as a member.

2.2 Consequential amendments to Environmental Planning and Assessment Act 1979

[1]   Part 2, Division 4

Omit the Division.

[2]   Section 75G Independent hearing and assessment panels

Omit the section.

[3]   Section 75I Director-General’s environmental assessment report

Omit “a panel constituted under section 75G” from section 75I (2) (c).

Insert instead “the Planning Assessment Commission”.

[4]   Section 75J Giving of approval by Minister to carry out project

Omit section 75J (2) (c). Insert instead:

  

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

[5]   Section 75K Appeals by proponent

Omit section 75K (1) (c). Insert instead:

  

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

[6]   Section 75L Appeals by an objector

Omit section 75L (1) (c). Insert instead:

  

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

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

Omit “, 75G (Independent hearing and assessment panels)”.

[8]   Section 75O Giving of approval for concept plan

Omit section 75O (2) (c). Insert instead:

  

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

[9]   Section 75Q Appeal by proponent

Omit section 75Q (1) (c). Insert instead:

  

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

[10]   Section 75S Erection and occupation of buildings and subdivision of land

Omit section 75S (3). Insert instead:

  

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

[11]   Section 75X Miscellaneous provisions relating to approvals under this Part

Omit “an inquiry held in accordance with section 119 or of a report of a panel of experts under section 75G” from section 75X (1).

Insert instead “a review by the Planning Assessment Commission”.

[12]   Section 80 Determination

Omit “Commission of Inquiry” from the heading to section 80 (6).

Insert instead “Planning Assessment Commission review”.

[13]   Section 80 (6)

Omit “directed that an inquiry be held, in accordance with section 119,”.

Insert instead “requested that a review be held by the Planning Assessment Commission”.

[14]   Section 80 (6) (b) (i)

Omit “inquiry”. Insert instead “review”.

[15]   Sections 80 (6) (b) (ii), 112 (1) (d) and 114 (a) and (b)

Omit “Commission of Inquiry” wherever occurring.

Insert instead “Planning Assessment Commission”.

[16]   Section 80 (7)

Omit section 80 (7) and (8). Insert instead:

  

(7)  If the Minister has requested that a review be held by the Planning Assessment Commission in relation to any proposed designated development the subject of a development application, the Minister is to determine the application after the review has been held and the Minister has considered the findings and recommendations of the Commission.

[17]   Section 81 Post-determination notification

Omit section 81 (1) (b). Insert instead:

  

(b)  in the case of a development application for consent to carry out designated development or development in respect of which a review application may be made under section 96E, each objector, and

[18]   Section 81 (3) and (4)

Omit section 81 (3). Insert instead:

  

(3)  In the case of a development application for consent to carry out designated development or development in respect of which a review application may be made under section 96E, the consent authority must also notify each objector of the objector’s rights to appeal against the determination and of the applicant’s rights to appeal against the determination.

(4)  In this section:

appeal includes make a review application under Division 7A.

objector means a person who has made a submission by way of objection under section 79 (5) or under regulations made under section 79AA.

[19]   Section 81A Effects of development consents and commencement of development

Omit “section 116G” from section 81A (6). Insert instead “section 109R”.

[20]   Section 82 Circumstances in which consent is taken to have been refused

Omit “section 97” from section 82 (1). Insert instead “section 96C, 96D or 97”.

[21]   Section 82 (2)

Omit “on a review under section 82A”.

Insert instead “following a review under Division 7A”.

[22]   Section 82 (3)

Insert “a review application made under Division 7A or” before “an appeal”.

[23]   Section 82 (4)

Omit the subsection. Insert instead:

  

(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 application for review or an appeal made before that consent in respect of a failure to determine the matter withdrawn at any time prior to the determination of that application or appeal.

[24]   Section 82A Review of determination

Omit the section.

[25]   Section 83 Date from which consent operates

Omit “section 82A (7)” from section 83 (1) (a).

Insert instead “section 96J (3)”.

[26]   Section 83 (1) (b)

Insert “or development to which an objection has been made in accordance with regulations under section 79AA” after “section 79 (5)”.

[27]   Section 83 (1) (b) (i)

Omit “an inquiry by a Commission of Inquiry”.

Insert instead “a review by the Planning Assessment Commission”.

[28]   Section 83 (2)

Insert “a review application has been made under Division 7A or” before “an appeal”.

[29]   Section 83 (2) (b)

Insert “review application or” before “appeal”.

[30]   Section 83 (3)

Omit the subsection. Insert instead:

  

(3)  A consent referred to in subsection (1) or (2) is void and, except for the purposes of Division 7A or section 97 or 98, is taken never to have been granted, if:

(a)  development consent is refused on a review application under section 96C or 96D or an appeal under section 97, or

(b)  the effect of a decision on a review application under section 96E or an appeal under section 98 is that development consent is refused.

[31]   Section 83 (4)

Insert “or 96K” after “section 82”.

[32]   Section 83 (6)

Omit the subsection.

[33]   Section 90 Application of this Division

Omit “to which Part 5A applies” from section 90 (2).

Insert instead “made by or on behalf of the Crown (within the meaning of Division 4)”.

[34]   Section 92A Effect of giving notice

Insert “or a regulation made under section 79AA” after “or 79A” in section 92A (a).

[35]   Part 4, Division 8, heading

Omit “Appeals”. Insert instead “Appeals to the Court”.

[36]   Section 104 Appeals and other provisions relating to development consents after order of Court

Insert “Division 7A and” before “sections 97 and 98” wherever occurring.

[37]   Section 104A Voluntary surrender of development consent

Insert “a review application under Division 7A or” before “an appeal” in section 104A (2).

[38]   Section 105 Regulations—Part 4

Omit section 105 (1) (p1).

[39]   Part 4A, Division 1, heading

Insert after the heading to Part 4A:

Division 1  Certification of work and other matters

[40]   Section 109J Restriction on issue of subdivision certificates

Insert “or person who has made a submission in accordance with the regulations under section 79AA” after “objector” in section 109J (1) (g) where firstly occurring.

[41]   Section 109J (1) (g) (i)

Insert “or person” after “objector”.

[42]   Section 109J (1) (g) (ii)

Omit the subparagraph. Insert instead:

  

(ii)  if a review application under section 96D, or an appeal, has been made by the objector or person within that time, the application or appeal has been finally determined.

[43]   Section 109K Appeals against failure or refusal to issue Part 4A certificates

Insert “or other development in respect of which a review application may be made under section 96E” after “designated development” wherever occurring in section 109K (3) (c) and (d).

[44]   Section 109K (3) (d) (ii)

Insert “a review application may be made under section 96E or” before “an appeal”.

[45]   Section 109K (3) (d) (iii)

Omit the subparagraph. Insert instead:

  

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

[46]   Part 4A, Division 2, heading

Insert before section 109R (as renumbered by Schedule 2.2 [58]):

Division 2  Crown building work and other Crown development

[47]   Section 112 Decision of determining authority in relation to certain activities

Omit “directed that an inquiry be held in accordance with section 119” from section 112 (1) (d).

Insert instead “requested that a review be held by the Planning Assessment Commission”.

[48]   Section 112 (1) (d)

Omit “the inquiry”. Insert instead “the review”.

[49]   Section 113 Publicity and examination of environmental impact statements

Omit “directed that an inquiry be held in accordance with section 119” from section 113 (5).

Insert instead “requested that a review be held by the Planning Assessment Commission”.

[50]   Section 114 Consideration of findings and recommendations of Planning Assessment Commission

Omit “directed that an inquiry be held, in accordance with section 119”.

Insert instead “requested that a review be held by the Planning Assessment Commission”.

[51]   Section 115M Reviews about designated fishing activity

Omit “direct an inquiry under section 119” from section 115M (1).

Insert instead “request that a review be held by the Planning Assessment Commission”.

[52]   Section 115M (2)

Omit “Commission of Inquiry that has conducted the inquiry”.

Insert instead “Planning Assessment Commission”.

[53]   Section 115M (3)

Omit “an inquiry”. Insert instead “a review”.

[54]   Section 115O Determination with respect to environmental assessment

Omit “a Commission of Inquiry” from section 115O (3) (c).

Insert instead “the Planning Assessment Commission”.

[55]   Part 5A, heading and sections 116A–116F and 116H (or sections 115T–115Y and 115ZB (as renumbered by Schedule 3.1 [5]))

Omit the heading and sections.

[56]   Section 116G Building, demolition and incidental work (or section 115Z (as renumbered by Schedule 3.1 [5]))

Insert in alphabetical order in section 116G (1):

  

Crown has the same meaning as it has in Division 4 of Part 4.

[57]   Section 116GA Crown development for public entertainment (or section 115ZA (as renumbered by Schedule 3.1 [5]))

Insert in alphabetical order in section 116GA (1):

  

Crown has the same meaning as it has in Division 4 of Part 4.

[58]   Sections 116G and 116GA (or sections 115Z and 115ZA (as renumbered by Schedule 3.1 [5]))

Renumber as sections 109R and 109S, respectively.

[59]   Section 117C Definitions

Omit the definition of panel. Insert instead in alphabetical order:

  

regional panel means a joint regional planning panel.

[60]   Section 118AA Planning assessment panels

Omit “panel” wherever occurring in section 118AA (2)–(6) and (8)–(11).

Insert instead “planning assessment panel”.

[61]   Section 118AA (7) and (7A)

Omit section 118AA (7). Insert instead:

  

(7)  Part 2 of Schedule 5B has effect with respect to the members of planning assessment panels.

(7A)  The regulations may make provision for or with respect to the procedures of planning assessment panels.

[62]   Section 118AB Functions of planning administrators or panels

Omit “or panel” from section 118AB (1).

Insert instead “, planning assessment panel or regional panel”.

[63]   Section 118AB (2)

Omit “or panel”. Insert instead “or planning assessment panel”.

[64]   Section 118AC Costs of planning administrator or planning assessment panel

Omit “or panel” wherever occurring.

Insert instead “or planning assessment panel”.

[65]   Section 118AD Council to assist planning administrator or panel

Omit “or panel” wherever occurring in section 118AD (1).

Insert instead “, planning assessment panel or regional panel”.

[66]   Section 118AE Annual report on activities of planning administrators and planning assessment panels

Omit “and panels” wherever occurring.

Insert instead “and planning assessment panels”.

[67]   Section 118AF Regulations

Omit “or panel” wherever occurring.

Insert instead “, planning assessment panel or regional panel”.

[68]   Section 118AF (a) and (b)

Omit “or panel’s” wherever occurring.

Insert instead “, planning assessment panel’s or regional panel’s”.

[69]   Part 6, Division 2, heading

Omit “Public inquiries and settlement”. Insert instead “Settlement”.

[70]   Sections 119–120A

Omit the sections.

[71]   Section 121 Settlement of disputes

Omit “a Commissioner of Inquiry” from section 121 (3).

Insert instead “a member of the Planning Assessment Commission”.

[72]   Section 132 Constitution of development areas

Omit section 132 (7). Insert instead:

  

(7)  If the Minister has requested that a review be held by the Planning Assessment Commission with respect to the proposal, the Minister must not determine the application until after:

(a)  the review has been held, and

(b)  the Minister has considered the findings and recommendations of the Commission following the review.

[73]   Section 152 Right to be heard

Omit “Where”.

Insert instead “Except as provided by this Act or the regulations, if”.

[74]   Schedule 5B Planning assessment panels

Omit Division 3 of Part 2.

[75]   Schedule 6 Savings, transitional and other provisions

Insert in appropriate order in Part 21 (as inserted by Schedule 5.1 [12]):

  

Division 3 Provisions relating to development assessment

124   Commissioners of Inquiry

(1)  A person who held office as a Commissioner of Inquiry immediately before the repeal of Division 4 of Part 2 by the amending Act ceases to hold office on that repeal.

(2)  A Commissioner of Inquiry is not entitled to any remuneration or compensation because of the loss of that office as a consequence of the amendments made by the amending Act.

125   Committees

(1)  A person who held office as a member of the Local Government Liaison Committee immediately before the repeal of Division 5 of Part 2 by the amending Act ceases to hold office on that repeal.

(2)  Any such member is not entitled to any remuneration or compensation because of the loss of that office as a consequence of the amendments made by the amending Act.

126   Application to existing development applications and consents

(1)  The amendment made to section 86A by the amending Act does not apply to or in respect of a complying development certificate issued before the commencement of the amendment.

(2)  The amendments made to section 95 by the amending Act do not apply to or in respect of a development consent granted before the commencement of those amendments.

(3)  The amendments made to section 95A by the amending Act apply to or in respect of a development consent granted before the commencement of those amendments.

2.3 Amendment of Heritage Act 1977 No 136

[1]   Section 4 Definitions

Omit the definition of Commissioner of Inquiry from section 4 (1).

Insert instead in alphabetical order:

  

Planning Assessment Commission has the same meaning as it has in the Environmental Planning and Assessment Act 1979.

[2]   Section 34 Action by Minister following recommendation for listing

Omit section 34 (1) (c). Insert instead:

  

(c)  request the Planning Assessment Commission to review the matter.

[3]   Section 34 (2)

Omit “appoints a Commissioner of Inquiry”.

Insert instead “requests a review by the Planning Assessment Commission”.

[4]   Section 34 (2)

Omit “Commissioner of Inquiry provides the Commissioner’s report”.

Insert instead “Commission provides its report”.

[5]   Section 57 Effect of interim heritage orders and listing on State Heritage Register

Omit “for the purposes of section 116C of the Environmental Planning and Assessment Act 1979 as referred to in section 116B (a) of that Act” from section 57 (1A) (b).

Insert instead “for the purposes of Division 4 of Part 4 of the Environmental Planning and Assessment Act 1979 as referred to in section 88 (2) (a) of that Act”.

[6]   Section 71 Planning Assessment Commission reports

Omit “appoint a Commissioner of Inquiry”.

Insert instead “request the Planning Assessment Commission”.

[7]   Sections 71 (a) and 78 (a)

Omit “the Commissioner” wherever occurring.

Insert instead “the Commission”.

[8]   Sections 72 and 79

Omit “the Commissioner of Inquiry” wherever occurring.

Insert instead “the Planning Assessment Commission”.

[9]   Sections 73 (1) (d) and 79A (1) (d)

Omit “Commissioner of Inquiry concerned” wherever occurring.

Insert instead “Planning Assessment Commission”.

[10]   Section 78 Planning Assessment Commission reports

Omit “appoint a Commissioner of Inquiry”.

Insert instead “request the Planning Assessment Commission”.

2.4 Amendment of Independent Commission Against Corruption Act 1988 No 35

Section 74C Reports relating to local government and planning authorities

Insert after section 74C (3B):

  

(3C)  The Commission is authorised to include in a report under section 74 a recommendation that consideration be given to the removal from office under the Environmental Planning and Assessment Act 1979 of a member of the Planning Assessment Commission or of a joint regional planning panel or a planning arbitrator because of corrupt conduct by the member or planning arbitrator.

2.5 Amendment of Ombudsman Act 1974 No 68

Section 5 Definitions

Insert “or planning arbitrator” after “certifier” in paragraph (f1) of the definition of public authority in section 5 (1).

2.6 Amendment of Public Sector Employment and Management Act 2002 No 43

Schedule 2 Executive positions (other than non-statutory SES positions)

Omit from Part 3:

  

Chairman of Commissioners of Inquiry (under the Environmental Planning and Assessment Act 1979)

Deputy Chairman of Commissioners of Inquiry (under the Environmental Planning and Assessment Act 1979)

Commissioner of Inquiry (under the Environmental Planning and Assessment Act 1979) (2 positions)

2.7 Amendment of Statutory and Other Offices Remuneration Act 1975 (1976 No 4)

Schedule 2 Public offices

Omit from Part 1:

  

Chairperson of Commissioners of Inquiry (under the Environmental Planning and Assessment Act 1979)

Deputy Chairperson of Commissioners of Inquiry (under the Environmental Planning and Assessment Act 1979)

Commissioner of Inquiry (under the Environmental Planning and Assessment Act 1979)

2.8 Amendment of Water Act 1912 No 44

[1]   Section 11A Determination of applications affected by reviews by Planning Assessment Commission

Omit “a Commission of Inquiry has given a section 120A notice” from section 11A (1).

Insert instead “the Planning Assessment Commission has given notice of a review under the Environmental Planning and Assessment Act 1979”.

[2]   Section 11A (2) (a)

Omit “Commission of Inquiry”.

Insert instead “Planning Assessment Commission”.

[3]   Section 11A (2)

Omit “section 120A”.

[4]   Section 11A (2) (b) and (3)

Omit “Commission of Inquiry’s section 119 report” wherever occurring.

Insert instead “Commission’s report under the Environmental Planning and Assessment Act 1979”.

[5]   Section 11A (6)

Omit the subsection.

[6]   Section 171A Determination of applications affected by reviews by Planning Assessment Commission

Omit “a Commission of Inquiry has given a section 120A notice” from section 171A (1).

Insert instead “the Planning Assessment Commission has given notice of a review under the Environmental Planning and Assessment Act 1979”.

[7]   Section 171A (2) (a)

Omit “Commission of Inquiry”.

Insert instead “Planning Assessment Commission”.

[8]   Section 171A (2)

Omit “section 120A”.

[9]   Section 171A (2) (b) and (3)

Omit “Commission of Inquiry’s section 119 report” wherever occurring.

Insert instead “Commission’s report under the Environmental Planning and Assessment Act 1979”.

[10]   Section 171A (6)

Omit the subsection.

2.9 Amendment of Water Management Act 2000 No 92

[1]   Section 94 Determination of applications affected by reviews by Planning Assessment Commission

Omit “a Commission of Inquiry has given a section 120A notice” from section 94 (1).

Insert instead “the Planning Assessment Commission has given notice of a review under the Environmental Planning and Assessment Act 1979”.

[2]   Section 94 (2) (a)

Omit “Commission of Inquiry”.

Insert instead “Planning Assessment Commission”.

[3]   Section 94 (2)

Omit “section 120A”.

[4]   Section 94 (2) (b) and (3)

Omit “Commission of Inquiry’s section 119 report” wherever occurring.

Insert instead “Commission’s report under the Environmental Planning and Assessment Act 1979”.

[5]   Section 94 (4)

Omit the subsection.

2.10 Amendment of Environmental Planning and Assessment Regulation 2000

[1]   Clause 51 Rejection of development applications

Omit “7” from clause 51 (1). Insert instead “14”.

[2]   Part 6, Division 7, heading

Insert “and development (other than designated development) subject to third party review applications” after “development”.

[3]   Clause 86 Application of Division

Omit clause 86 (1). Insert instead:

  

(1)  This Division applies:

(a)  to other advertised development, and

(b)  to development in respect of a which a review application may be made by a person (other than the applicant for a development application) under section 96E of the Act (reviewable development).

[4]   Clause 87 How must a development application be publicly notified?

Omit “other advertised development”.

Insert instead “development to which this Division applies”.

[5]   Clause 88 Who must written notice be given to?

Insert “(in the case of other advertised development)” after “application” in clause 88 (1) where firstly occurring.

[6]   Clause 88 (1A)

Insert after clause 88 (1):

  

(1A)  Written notice of the development application (in the case of reviewable development) must be given to such persons as appear to the consent authority to own or occupy land within 1 kilometre of any point on the boundary of the land the subject of the development application.

[7]   Clause 100 Notice of determination

Omit “section 82A” from clause 100 (1) (c1).

Insert instead “Division 7A of Part 4”.

[8]   Clause 100 (1) (k)

Insert “or a right to make a review application” after “appeal”.

[9]   Clause 113A Public participation: application under section 82A of the Act for review of Council’s determination

Omit the clause.

[10]   Part 6, Division 14

Insert after Division 13:

  

Division 14 Review conditions

124A   Application of Division

This Division applies to a further condition imposed under section 80A (10B) of the Act in relation to a development consent condition that permits extended hours of operation or increases the maximum number of persons permitted in a building (in this Division called a review condition).

124B   Development for which review condition may be imposed

(1)  Development consent for the following purposes may be the subject of a review condition:

(a)  entertainment facilities,

(b)  function centres,

(c)  nightclubs,

(d)  pubs,

(e)  registered clubs.

(2)  Words and expressions used in this clause have the same meaning as they have in the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006.

124C   Matters to be included in consent

A consent that is subject to a review condition must include the following:

(a)  a statement that the consent is subject to the condition and the purpose of the condition,

(b)  that the consent authority is to carry out the reviews,

(c)  when, or at what intervals, the reviews are to be carried out.

124D   Review procedures

(1)  The consent authority must give the operator of a development subject to a review condition not less than 14 days written notice that a review is to be carried out under the condition.

(2)  The consent authority may notify such other persons as it thinks fit of the review.

(3)  The consent authority must take into account any submissions made by a person that are received within 14 days after notice is given to the person of a review.

Note. Under section 80A (10D) of the Act, a decision to change a review condition of a development consent is taken to be a determination of a development consent and is subject to the notification and appeal provisions under the Act in relation to such a determination.

[11]   Clause 264 Council to maintain a register of development applications and consents

Insert after clause 264 (2) (m):

  

(ma)  in the case of a consent subject to a condition under section 80A (10B) of the Act, the outcome of any review carried out under the condition,

[12]   (Repealed)

[13]   Clause 285

Insert after clause 284:

  

285   Categories of development for which review applications may be made by objectors

The classes of development applications in respect of which a review application may be made under section 96E of the Act are as follows:

(a)  development applications relating to development for residential purposes that:

(i)  exceeds 2 storeys, or

(ii)  contains at least 5 separate dwellings and has a site area of more than 2,000m²,

      and exceeds an applicable development standard for height or floor space ratio by more than 25%,

(b)  development applications relating to development for commercial, retail or mixed use purposes that:

(i)  is greater than 9m in height, and

(ii)  has a site area of more than 2,000m², and

(iii)  exceeds an applicable development standard for height or floor space ratio by more than 25%.

Schedule 3 Amendments relating to development contributions

(Section 3)

3.1 Amendment of Environmental Planning and Assessment Act 1979

[1]   Section 75O Giving of approval for concept plan

Omit “planning agreement referred to in section 93F” from section 75O (5).

Insert instead “planning agreement under Division 4 of Part 5B”.

[2]   Section 75R Application of other provisions of Act

Omit section 75R (4).

[3]   Section 75R

Insert at the end of the section:

  

Note. Section 116B provides for the application of Part 5B (Provision of public infrastructure) to projects and the giving of approval for the carrying out of projects under this Part.

[4]   Part 4, Divisions 6 and 6A

Omit the Divisions.

[5]   Part 5A Development by the Crown

Renumber the sections of Part 5A with sections numbered consecutively starting from section 115T and with cross-references in the Act to sections of that Part renumbered accordingly.

[6]   Part 5B

Insert after Part 5A:

  

Part 5B Provision of public infrastructure

Division 1 Preliminary

116A   Definitions

(1)  In this Part:

community infrastructure—see section 116C.

community infrastructure contribution means a development contribution required by a consent authority under Division 2.

contributions plan means a contributions plan approved under this Part.

development contribution means:

(a)  the dedication of land free of cost, or

(b)  the payment of a monetary contribution.

Note. Development contributions for community infrastructure are provided for in Division 2 and development contributions for public infrastructure are provided for in Division 3.

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 planning agreement provided for in Division 4.

planning authority means:

(a)  a council, or

(b)  the Minister, or

(c)  the corporation, or

(d)  a development corporation, or

(e)  a public authority declared by the regulations to be a planning authority for the purposes of this Part.

public infrastructure—see section 116C.

State contributions area means land for the time being described in Schedule 5A.

State infrastructure contribution means a State infrastructure contribution determined by the Minister under Division 3.

(2)  Words and expressions used in Schedule 1 have the same meanings as they have in this Part.

116B   Application of Part

(1)  This Part applies to development that requires development consent.

(2)  This Part applies to projects under Part 3A (and the giving of approval for the carrying out of projects under that Part) in the same way as it applies 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 a provision of Division 2, 3 or 5 of this Part unless the provision would have applied if Part 3A did not apply to the project and a development consent were granted.

116C   Community and public infrastructure

(1)  In this Part:

community infrastructure means public amenities and public services, but does not include water supply or sewerage services.

public infrastructure includes:

(a)  public amenities and public services, and

(b)  affordable housing, and

(c)  transport infrastructure,

      but does not include water supply or sewerage services.

(2)  In this Part, provision of public infrastructure includes:

(a)  the provision, extension and augmentation of (or the recoupment of the cost of providing, extending or augmenting) public infrastructure, and

(b)  the funding of recurrent expenditure relating to the provision, extension and augmentation of public infrastructure, and

(c)  the conservation or enhancement of the natural environment, and

(d)  any action of a planning authority in connection with the exercise of any statutory function under this Act, including the carrying out of any research or investigation and the preparation of any report, study or instrument.

116D   Key considerations for development contributions

The following are the key considerations for development contributions for the purposes of this Part:

(a)  Can the public infrastructure that is proposed to be funded by a development contribution be provided within a reasonable time?

(b)  What will be the impact of the proposed development contribution on the affordability of the proposed development?

(c)  Is the proposed development contribution based on a reasonable apportionment between existing demand and new demand for public infrastructure to be created by the proposed development to which the contribution relates?

(d)  Is the proposed development contribution based on a reasonable estimate of the cost of proposed public infrastructure?

(e)  Are the estimates of demand for each item of public infrastructure to which the proposed development contribution relates reasonable?

116E   Accountability

(1)  The regulations may make provision for or with respect to requiring the collection and publication by planning authorities of information concerning the provision of public infrastructure and the determination, collection, application and use of development contributions under this Part.

(2)  The information required to be collected and published can include (but is not limited to):

(a)  details of the amounts of monetary contributions paid and the purposes for which they were paid, and

(b)  details of the purposes for which monetary contributions have been applied by a planning authority, and

(c)  details of the time frame for the provision of public infrastructure to which any contributions plan approved by the planning authority relates, and

(d)  details of any borrowings or other arrangements made by a planning authority for the provision of public infrastructure, and

(e)  the amount and other details of any monetary contributions that have not been applied for the purpose for which they were paid and that continue to be held by a planning authority.

(3)  The regulations can, for example, require the publication of information by a planning authority by requiring inclusion of the information in any annual or other report of the planning authority.

116F   Use of development contributions

(1)  A consent authority or planning authority is to hold any monetary contribution paid under this Part (including under a planning agreement) for the purpose for which the payment was required, and apply the money towards that purpose within a reasonable time.

(2)  Money paid under this Part for different purposes may be pooled and applied progressively for those purposes, subject to the requirements of any relevant contributions plan.

(3)  Money paid as an indirect contribution under Division 2 is to be applied (subject to any relevant provisions of a contributions plan) towards the provision, extension or augmentation of community infrastructure or towards recouping the cost of the provision, extension or augmentation of community infrastructure.

(4)  Land dedicated under this Part 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.

(5)  A reference in this section to a monetary contribution includes a reference to any additional amount earned from its investment.

(6)  This section is subject to any direction of the Minister under this Part.

(7)  This section does not apply in respect of any of the following:

(a)  monetary contributions paid, and the proceeds of the sale of land dedicated, under Division 2 (Community infrastructure contributions) in respect of development within a growth centre (or other area of land) that is specified in Schedule 3 (Community Infrastructure Trust Fund areas) to the Growth Centres (Development Corporations) Act 1974,

Note. Section 25 of the Growth Centres (Development Corporations) Act 1974 requires these contributions to be paid into a Community Infrastructure Trust Fund. The other areas of land referred to in this paragraph are former growth centres.

(b)  a State infrastructure contribution under Division 3,

(c)  a development contribution under Division 5 (Development contributions for affordable housing).

Division 2 Community infrastructure contributions

116G   Direct and indirect contributions for community infrastructure

(1)  A consent authority can require the following development contributions in respect of development:

direct contributions, being either or both of the following:

(a)  a reasonable development contribution for the provision, extension or augmentation of community infrastructure within the area,

(b)  a reasonable monetary contribution towards recoupment of the cost of providing existing community infrastructure within the area.

indirect contributions, being the payment of a monetary contribution that is a percentage of the proposed cost of carrying out the development.

(2)  An indirect contribution cannot be required in relation to development if a direct contribution is required in relation to that development.

(3)  Once a direct contribution has been required in respect of development comprising the subdivision of land (the initial development), no direct or indirect contribution can be required in respect of other development on that land except to the extent (if any) that the other development will or is likely to increase the demand for community infrastructure beyond the increase in demand attributable to the initial development.

116H   Councils require contributions plan

(1)  A council cannot require a community infrastructure contribution unless it is of a kind allowed by, and is determined in accordance with, a contributions plan approved by the council.

(2)  The Minister may, by direction in writing given in a particular case, authorise a council to require a community infrastructure contribution even though it is not of a kind allowed by, or is not determined in accordance with, a contributions plan approved by the council.

(3)  A council and the Minister must have regard to the key considerations for development contributions established by section 116D when approving a contributions plan or giving a direction under this section.

116I   Councils limited to contributions for key community infrastructure

(1)  A council’s contributions plan cannot allow the council to require a community infrastructure contribution unless the community infrastructure is:

(a)  key community infrastructure (being community infrastructure prescribed by the regulations as key community infrastructure), or

(b)  additional community infrastructure (being community infrastructure other than key community infrastructure) that the Minister has approved for the council under this section.

(2)  The Minister may on application by a council approve particular community infrastructure or a kind of community infrastructure as additional community infrastructure for the council.

(3)  The Minister may by direction in writing to one or more councils direct that (despite any other provision of this section or the regulations) a contributions plan of the council may permit the council to require a community infrastructure contribution for specified additional community infrastructure.

(4)  In determining whether to grant approval or give a direction under this section, the Minister must have regard to the key considerations for development contributions established by section 116D.

(5)  The regulations may:

(a)  limit the kinds of infrastructure that may be the subject of an approval or direction of the Minister of additional community infrastructure for the purposes of this section, and

(b)  require a council that applies for the approval of the Minister under this section to provide specified information and documents (such as a business plan and independent assessment of the business plan) in support of or otherwise in connection with the application.

116J   Nexus for direct contributions

(1)  A direct contribution for the provision, extension or augmentation of community infrastructure within an area can only be required if the consent authority is satisfied that the development concerned will or is likely to require the provision of or increase the demand for that community infrastructure.

(2)  A direct contribution towards recoupment of the cost of providing existing community infrastructure within the area can only be required if:

(a)  the consent authority is satisfied that the development concerned will, if carried out, benefit from the provision of the existing public infrastructure, and

(b)  the existing public infrastructure was (at any time, whether before or after the date of commencement of this Part) provided within the area by a consent authority in preparation for or to facilitate the carrying out of development in the area.

(3)  For the purposes of a direct contribution, the cost of providing existing community infrastructure is that cost as indexed in accordance with the regulations.

(4)  A direct contribution cannot be required if the community infrastructure concerned is, in whole or in part, infrastructure provided, or to be provided, in relation to the development out of State infrastructure contributions.

116K   Nexus for indirect contributions

(1)  The validity of an indirect contribution is not affected by there being no connection between the development the subject of the indirect contribution and the object of expenditure of any money required to be paid.

(2)  A consent authority cannot require payment of an indirect contribution in relation to development on land in a State contributions area except with the approval of the Minister or a development corporation designated by the Minister to give approvals under this subsection.

(3)  The regulations may make provision for or with respect to indirect contributions, 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 an indirect contribution.

(4)  The Minister may by direction to a consent authority in the case of a particular development application permit the consent authority to require payment of an indirect contribution of a percentage in excess of any maximum percentage fixed by the regulations. The Minister’s direction may also include requirements for the public notification of any such permission, including notification in any contributions plan of the consent authority.

116L   Minister’s directions about community infrastructure contributions

(1)  The Minister may, generally or in any particular case or class of cases, direct a consent authority as to any one or more of the following:

(a)  the community infrastructure in relation to which a requirement for a community infrastructure contribution may or may not be imposed,

(b)  in the case of a requirement for a direct contribution requiring the payment of a monetary contribution—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 the maximum amount of any such contribution,

(c)  in the case of a requirement for an indirect contribution—the maximum percentage or maximum amount of the indirect contribution,

(d)  the things that may or may not be accepted as a material public benefit for the purposes of a requirement for a direct contribution,

(e)  the type or area of development in respect of which a community infrastructure contribution may or may not be imposed,

(f)  the time within which community infrastructure contributions in the form of monetary contributions under this Division are to be applied (including a direction as to what constitutes a reasonable time for the provision of community infrastructure funded by community infrastructure contributions under this Division),

(g)  the use of community infrastructure contributions in the form of monetary contributions for purposes other than those for which they were paid,

(h)  the preparation of joint contributions plans by 2 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 Part and despite the provisions of any contributions plan.

(4)  A direction under this section as to the maximum amount or maximum percentage of a community infrastructure contribution may provide for the Minister to approve of an increase in that maximum amount or percentage in a particular case on the application of a council.

(5)  The regulations may require a council that applies for the approval of the Minister as referred to in subsection (4) to provide specified information and documents (such as a business plan and independent assessment of the business plan) in support of or otherwise in connection with the application

(6)  Directions in force under this section are to be made publicly available on the website of the Department.

116M   Development contribution provisions in planning instruments

(1)  An environmental planning instrument (EPI) must not include provision that requires as a condition of development consent or as a precondition to the grant of development consent:

(a)  the making of a development contribution for the provision of public infrastructure of any kind in connection with the carrying out of the development concerned, or

(b)  the making of satisfactory arrangements for the making of such a development contribution.

(2)  This section does not apply to any provision of an EPI authorised by Division 3.

(3)  This section does not prevent an EPI from including a provision to the effect that development consent must not be granted for development unless the consent authority is satisfied that specified public infrastructure is available or that adequate arrangements have been made to make that public infrastructure available.

(4)  This section does not apply to any provision that is in force immediately before the commencement of this section.

116N   Procedural matters

Part 1 of Schedule 1 has effect in relation to community infrastructure contributions.

Division 3 State infrastructure contributions

116O   State infrastructure contributions in State contributions areas

(1)  For any land in a State contributions area, the Minister may determine that development contributions (State infrastructure contributions) are to be made for the provision of public infrastructure in relation to development or a class of development on the land.

(2)  The Minister is to determine the level and nature of State infrastructure contributions. A State infrastructure contribution may be determined as a contribution of a specified amount or of a percentage of the proposed cost of carrying out development or any class of development.

(3)  In determining the level and nature of a State infrastructure contribution, the Minister must have regard to the key considerations for development contributions established by section 116D.

(4)  A State infrastructure contribution can extend to the provision of public infrastructure outside a State contributions area or outside New South Wales.

116P   Restrictions on State infrastructure determinations

(1)  The determination by the Minister of a state infrastructure contribution is subject to the concurrence of:

(a)  the Treasurer, or

(b)  the Secretary of the Treasury (if the cost of the infrastructure is less than $30 million).

(2)  The determination by the Minister of a State infrastructure contribution as a specified amount (but not as a percentage of the proposed cost of carrying out development) is subject to the following requirements:

(a)  the contribution must as far as reasonably practicable be reasonable having regard to the cost of the provision of public infrastructure in relation to the development or class of development concerned,

(b)  a State infrastructure contribution for the provision of public infrastructure outside the State contributions area concerned is not to be determined unless the Minister is of the opinion that the need for that public infrastructure arises as a result of the development concerned.

116Q   State infrastructure contributions in addition to community infrastructure contributions

A requirement for a State infrastructure contribution is in addition to any requirement for a community infrastructure contribution under Division 2.

116R   Provision in EPIs for satisfactory arrangements for State infrastructure

(1)  An environmental planning instrument can include provision to the effect that development consent is not to be granted for specified development or development of a specified class unless arrangements satisfactory to the Director-General have been made for the making of a development contribution for the provision of public infrastructure by the State in relation to the development.

(2)  In deciding for the purposes of any such provision whether satisfactory arrangements have been made for the making of a development contribution for the provision of public infrastructure by the State in relation to development, the Director-General must have regard to the key considerations for development contributions established by section 116D.

(3)  If a State infrastructure contribution is required in respect of development, a development contribution for the provision of public infrastructure in respect of the development cannot be required under a provision of an environmental planning instrument.

116S   Procedural matters

Part 2 of Schedule 1 has effect in relation to State infrastructure contributions.

Division 4 Voluntary planning agreements

116T   Developers can enter into planning agreements

(1)  A planning agreement is a voluntary agreement between one or more planning authorities and a person (the developer) 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 the provision of public infrastructure or another public purpose.

(2)  The developer must be:

(a)  a person who has sought a change to or the making or revocation of an environmental planning instrument, or

(b)  a person who has made, or proposes to make, a development application, or

(c)  a person who has entered into an agreement with, or is otherwise associated with, a person to whom paragraph (a) or (b) applies.

116U   Planning authority must have regard to key considerations for development contributions

When entering into a planning agreement a planning authority must have regard to the key considerations for development contributions established by section 116D.

116V   Council planning agreements limited to key community infrastructure

(1)  A planning agreement entered into by a council cannot apply in respect of the provision of public infrastructure unless:

(a)  the infrastructure is key community infrastructure (being community infrastructure prescribed by the regulations as key community infrastructure), or

(b)  the provision of the public infrastructure concerned has been approved for the council by the Minister under this section.

(2)  The Minister may on application by a council approve the provision of public infrastructure specified by the Minister or of a kind specified by the Minister for the purposes of a planning agreement.

(3)  The Minister may by direction in writing to a council direct that (despite any other provision of this section or the regulations) a planning agreement entered into by the council can apply in respect of the provision of public infrastructure specified by the Minister.

(4)  In determining whether to grant approval or give a direction under this section, the Minister must have regard to the key considerations for development contributions established by section 116D.

(5)  The regulations may:

(a)  limit the kinds of infrastructure that may be the subject of an approval or direction of the Minister or the purposes of this section, or

(b)  require a council that applies for the approval of the Minister under this section to provide specified information and documents (such as a business plan and independent assessment of the business plan) in support of or otherwise in connection with such an application.

116W   Planning agreements can limit other development contribution requirements

(1)  A planning agreement can exclude the application in respect of development of any provision of Division 2 (Community infrastructure contributions) or of Division 3 (State infrastructure contributions), subject to the following restrictions:

(a)  a planning agreement cannot exclude the application of a provision of Division 2 in respect of development unless the consent authority for the development or the Minister is a party to the agreement,

(b)  a planning authority is not to enter into a planning agreement excluding the application of Division 3 unless the planning authority is the Minister or does so with the approval of the Minister or a development corporation designated by the Minister to give such approvals.

(2)  If a planning agreement excludes the application of any provision of Division 2 or 3 to particular development, a consent authority cannot require a development contribution in respect of that development under the excluded provisions (except in respect of the application of any part of those provisions that is not excluded by the agreement).

(3)  A planning agreement can exclude benefits under a planning agreement from being taken into consideration in connection with requiring a direct contribution under Division 2, and such an exclusion has effect accordingly.

116X   Procedural matters

Part 3 of Schedule 1 has effect in relation to planning agreements.

Division 5 Development contributions for affordable housing

116Y   Conditions requiring land or contributions for affordable housing

(1)  A State environmental planning policy may identify that there is a need for affordable housing within an area.

(2)  A consent authority may grant development consent for development within such an area subject to a condition requiring a reasonable development contribution to be used for the purpose of providing affordable housing, but only if:

(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 for development consent.

(3)  The reasonableness of a development contribution is to be determined having regard to the following:

(a)  the extent of the need in the area for affordable housing,

(b)  the scale of the proposed development,

(c)  any other dedication or contribution required to be made by the applicant under this Division, or under Division 2 as a direct contribution.

(4)  A condition may be imposed under this section only if:

(a)  the condition complies with all relevant requirements made by a State environmental planning policy with respect to the imposition of conditions under this section, and

(b)  the condition is authorised to be imposed by a local environmental plan or State environmental planning policy, and is in accordance with a scheme for dedications or contributions set out in or adopted by the plan or policy.

(5)  A condition is not to be imposed under this section in relation to development that is within a State contributions area.

116Z   Other contributions to be taken into account

A consent authority that proposes to impose a condition in accordance with this Division 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.

116ZA   Other conditions concerning affordable housing

This Division does not prevent 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.

116ZB   Use of affordable housing contributions

(1)  A development contribution made in accordance with a condition imposed under this Division must:

(a)  in the case of land, be made available by the consent authority for the purposes of affordable housing within a reasonable time, or

(b)  in the case of a monetary contribution, be held by the consent authority (together with any additional amount earned from its investment) for the purpose for which the payment was required and applied by the consent authority for the purposes of affordable housing in the area or an adjoining area within a reasonable time, or

(c)  in either case, transfer the land or pay the monetary contribution in accordance with any applicable direction of the Minister under this section.

(2)  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 to a person nominated by the Minister land contributed under this Division, or

(b)  requiring it to pay to a person nominated by the Minister a monetary contribution contributed under this Division.

(3)  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 or (if the Minister so directs) within a time directed by the Minister, 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 any other area directed by the Minister, within a time directed by the Minister.

Division 6 State Infrastructure Fund

116ZC   Definition

In this Part:

the Fund means the State Infrastructure Fund established under this Division.

116ZD   Establishment of Fund

(1)  There is to be established in the Special Deposits Account a fund called the State Infrastructure Fund.

(2)  The Fund is to be administered by the Secretary of the Treasury. The Secretary is to consult the Director-General in relation to the administration of the Fund.

116ZE   Payments into Fund

The following is to be paid into the Fund:

(a)  monetary contributions, and the proceeds of sale of any land, received by a consent authority as a State infrastructure contribution under Division 3,

(b)  any money appropriated by Parliament for the purposes of the Fund,

(c)  the proceeds of the investment of money in the Fund,

(d)  any other money required to be paid into the Fund by or under this or any other Act or the regulations under this Act.

116ZF   Payments out of Fund

(1)  The following is to be paid from the Fund:

(a)  payments to public authorities for the provision of public 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).

116ZG   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 Secretary of the Treasury to invest the money, in any other manner approved by the Treasurer.

[7]   Schedule 1

Insert as Schedule 1:

  

Schedule 1 Provisions relating to development contributions

(Sections 116N, 116S and 116X)

Part 1 Community infrastructure contributions

1   Development contributions to be imposed by condition of consent

A requirement for a community infrastructure contribution is to be imposed by means of a condition on development consent for the development concerned.

2   Appeals

(1)  A condition of development consent that imposes a direct contribution may be disallowed or amended by the Court on appeal, or by a reviewing body on a review under section 96E, because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with a contributions plan or direction of the Minister. The Court is not authorised to disallow or amend the contributions plan or direction.

(2)  A condition of development consent that imposes an indirect contribution that is of a kind allowed by, and determined in accordance with, a contributions plan (or a direction of the Minister under this Part) may not be disallowed or amended by the Court on appeal, or by a reviewing body on a review under section 96E.

(3)  A person cannot appeal to the Court under this Act (despite section 123 or any other provision of this Act) in respect of:

(a)  the approving, amending or repealing of a contributions plan by the Minister under clause 7 (Minister’s directions about contributions plans), or

(b)  the reasonableness in the particular circumstances of a requirement for a community infrastructure contribution that is determined in accordance with any such contributions plan.

3   Dedication of land or provision of material public benefit in satisfaction of development contribution requirement

A consent authority may accept the dedication of land or the provision of a material public benefit in part or full satisfaction of a requirement for a community infrastructure contribution other than an indirect contribution.

4   Other contributions to be taken into account

A consent authority that proposes to require a community infrastructure contribution in respect of development 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 by a planning agreement.

5   Contribution requirements under other Acts

(1)  Compliance with a requirement for a community infrastructure contribution in relation to development operates to satisfy a requirement imposed by a public authority under any other Act (in relation to or in connection with that development) for the dedication of land or payment of money in respect of the provision of public infrastructure, to the extent of the value of the land dedicated or the amount of money paid in compliance with the requirement.

(2)  The regulations may make provision for the determination in accordance with the regulations of the value for the purposes of this clause of the land dedicated in compliance with the requirement.

6   Making of contributions plans

(1)  A council, or 2 or more councils, may, subject to and in accordance with the regulations, prepare and approve a contributions plan for the purpose of imposing requirements for community infrastructure contributions.

(2)  If a contributions plan authorises the imposition of a requirement for an indirect contribution, the plan is to specify the type or area of development in respect of which an indirect contribution may be imposed and is to preclude the imposition of a requirement for a direct contribution in respect of that type or area of development.

(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 must, within 14 days after approving a contributions plan, provide the Minister with a copy of the plan.

7   Minister’s directions about contributions plans

(1)  The Minister may direct a council to provide the Minister with a draft of a contributions plan for review by the Minister before the council approves the plan. The council is not to approve the contributions plan until the Minister has notified the council that the Minister’s review of the plan has been completed.

(2)  The Minister may, by direction in writing to a council, approve, amend or repeal a contributions plan on behalf of the council.

(3)  Alternatively, 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. The Minister may then, by direction in writing to the council, approve, amend or repeal the contributions plan on behalf of the council if the council fails to do so in accordance with the direction.

(4)  The approval, amendment or repeal of a contributions plan by the Minister has effect as if done by the council.

(5)  In approving, amending or repealing a contributions plan under this clause the Minister is not subject to the regulations.

8   Operation of contributions plan if consent authority not a council

(1)  A consent authority that is not a council can require a development contribution even if it is not of a kind allowed by, or is not determined in accordance with, a contributions plan.

(2)  If there is a contributions plan that applies to the whole or any part of the area in which development is to be carried out, a consent authority that is not a council must however have regard to the contributions plan before imposing the requirement.

9   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.

10   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 requiring a community infrastructure contribution, and

(b)  can only authorise the imposition by an accredited certifier of a condition requiring the payment of a monetary contribution, and

(c)  must specify the amount of the monetary contribution that an accredited certifier must so impose or the precise method by which the amount is to be determined.

(1A)  The imposition of a condition by an accredited certifier as authorised by a contributions plan is subject to compliance with any directions given under section 116L (1) (a), (b), (c) or (e) with which a council would be required to comply if issuing the complying development certificate concerned.

(2)  If an accredited certifier fails to comply with such a requirement of a contributions plan, the consent authority may impose the necessary condition on the complying development certificate and it has effect as if it had been imposed by the accredited certifier.

(3)  This clause does not limit anything for which a contributions plan may make provision in relation to a consent authority.

11   Cross-boundary issues

(1)  A requirement for a community infrastructure contribution may be imposed 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 payable pursuant to such a requirement 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.

12   Public infrastructure may be provided outside NSW

A requirement for a direct contribution may, with the written approval of the Minister, be imposed for the provision of public infrastructure on land in another State or Territory if the area in which the development the subject of the requirement is to be carried out adjoins the other State or Territory.

13   Community infrastructure contributions imposed by Minister or Director-General in growth centres etc

(1)  This clause applies where the Minister or the Director-General, as the consent authority, imposes a requirement for a community infrastructure contribution in relation to:

(a)  land within a growth centre, or

(b)  other land within one or more council areas.

(2)  This Schedule and Part 5B apply to land within a growth centre as if references in this Schedule and that Part to the area were references to the growth centre.

(3)  Any monetary contribution paid as a community infrastructure contribution:

(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 required.

(4)  This clause does not apply in respect of a monetary contribution in respect of development within a growth centre (or other area of land) that is specified in Schedule 3 (Community Infrastructure Trust Fund areas) to the Growth Centres (Development Corporations) Act 1974.

Note. Section 25 of the Growth Centres (Development Corporations) Act 1974 requires these community infrastructure contributions to be paid into a Community Infrastructure Trust Fund. The other areas of land referred to in this subclause are former growth centres.

Part 2 State infrastructure contributions

14   How State infrastructure contributions are imposed

(1)  Having determined a State infrastructure contribution for development, the Minister may direct a consent authority to require the State infrastructure contribution for the development. The consent authority must comply by requiring the contribution as a condition of development consent for the development.

Note. If the Minister is the consent authority, the Minister may impose the condition without such a direction.

(2)  If a consent authority given a direction to require a State infrastructure contribution fails to comply with the direction in accordance with its terms, the Minister may impose the necessary condition on development consent and it has effect as if it had been imposed by the consent authority.

15   Consultation on proposed State infrastructure contributions

(1)  In determining the level and nature of State infrastructure contributions in respect of development within a particular State contributions area, the Minister may:

(a)  consult with owners of land in the State contributions area and other relevant stakeholders, or consult with a panel of those owners and stakeholders established by the Minister, or

(b)  publicly exhibit within the State contributions area a proposal in relation to the level of State infrastructure contributions and seek submissions within a reasonable time in relation to that proposal.

(2)  The Minister’s determination of a State infrastructure contribution:

(a)  is to contain reasons for the level and nature of the contribution, and

(b)  is to be made publicly available by the Minister.

16   Restrictions on appeals and changes to conditions

(1)  A person cannot appeal to the Court under this Act (including section 123) or make a review application under Division 7A of Part 4 in respect of a determination or direction of the Minister, or a condition imposed by a consent authority or the Minister, under Division 3 of Part 5B or under this Part.

(2)  A condition imposed by a consent authority or the Minister under Division 3 of Part 5B cannot be modified without the approval of the Minister.

17   Dedication of land or material public benefit in satisfaction of contribution

The consent authority may, with the consent of the Minister, accept the dedication of land or the provision of a material public benefit in partial or full satisfaction of a condition of development consent that requires a State infrastructure contribution.

18   Special provision for council infrastructure and other components of development contributions

(1)  The Minister’s determination of a State infrastructure contribution is to identify what part (if any) of the contribution is for the provision of public infrastructure by a council or for any action of a planning authority in connection with the exercise of any statutory function under this Act.

(2)  Any part of a State infrastructure contribution identified under this clause:

(a)  is, for the purposes of Division 6 (State Infrastructure Fund) of Part 5B, deemed not to have been received by the consent authority under that Part, and

(b)  is not to be taken into account in calculating the cost of public infrastructure for the purposes of the requirement that the Minister consult the Treasurer when the cost of public infrastructure exceeds $30 million, and

(c)  is, if the part is identified as being for the provision of public infrastructure by a council, to be provided to the council and is to be held and applied by the council in accordance with section 116F (Use of development contributions), and

(d)  is, if the part is identified as being for any action of a planning authority in connection with the exercise of any statutory function under this Act, to be provided to the Department and is to be held and applied by the Department in accordance with section 116F.

(3)  Subclause (1) does not limit any payments being made out of the Fund to a council or the Department under section 116ZF (1) (a).

19   Land contributed as State infrastructure contribution

The Minister may direct a consent authority to sell all or part of any land it receives as a State infrastructure contribution or to transfer any such land to a public authority that is to provide, or has provided, public infrastructure in relation to the development to which the land relates or the class of development to which that development belongs.

20   Minister may make, amend or repeal State contributions areas

(1)  The Minister may, by order published in the Gazette, amend Schedule 5A for the purpose of:

(a)  creating a State contributions area, or

(b)  repealing a State contributions area, or

(c)  changing a State contributions area.

(2)  The Minister is to consult with the Treasurer before amending Schedule 5A.

(3)  Any such order may contain savings and transitional provisions.

(4)  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.

Part 3 Planning agreements

21   Parties to planning agreements

(1)  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.

(2)  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.

22   Limitations on planning agreements

(1)  A planning agreement cannot impose an obligation on a planning authority to grant development consent, or to exercise any function under this Act in relation to a change to or the making or revocation of an environmental planning instrument.

(2)  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 a provision of this Act, an environmental planning instrument or a development consent applying to the land concerned.

23   Contents of planning agreements

(1)  A planning agreement must provide for the following:

(a)  a description of the land to which the agreement applies,

(b)  a description of the change to or the making or revocation of the environmental planning instrument, or 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 Divisions 2 and 3 of Part 5B to the development,

(e)  if the agreement does not exclude the application to the development of provisions of Division 2 of Part 5B for requiring a direct contribution, whether benefits under the agreement are or are not to be taken into consideration in connection with requiring such a contribution,

(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.

(2)  There is not required to be any connection between the development to which a planning agreement applies and the object of expenditure of any money required to be paid by the agreement.

Note. See section 116F, which requires money paid under a planning agreement to be applied for the purpose for which it was paid within a reasonable time.

24   Registered planning agreements to run with land

(1)  A planning agreement can be registered under this clause 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,

(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 lodgment 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 clause 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 clause to a planning agreement includes a reference to any amendment or revocation of a planning agreement.

25   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 8 July 2005) has no effect to the extent that the provision:

(a)  expressly requires a planning agreement to be entered into before a development application can be made, considered or determined, or

(b)  expressly prevents a development consent from being granted or having effect unless or until a planning agreement is entered into.

(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 a change to or the amendment or revocation of an environmental planning instrument sought by the developer for the purposes of making the development application, or

(b)  a commitment made by the proponent in a statement of commitments made under Part 3A.

(4)  In this clause, planning agreement includes any agreement (however described) containing provisions similar to those contained in a planning agreement.

26   Appeals

(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 clause does not affect the jurisdiction of the Court under section 123 (Restraint etc of breaches of this Act).

27   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, or

(d)  the kinds of material public benefit that a planning agreement may or may not require a developer to provide.

28   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)  requiring the provision to a planning authority of a copy of a planning agreement and any amendment or notice of revocation of a planning agreement,

(e)  the public inspection of planning agreements after they have been made.

[8]   Schedule 5A, heading and source reference

Omit the heading and the source reference. Insert instead:

  

Schedule 5A State contributions areas

(Schedule 116A and Schedule 1, clause 20)

[9]   Schedule 6 Savings, transitional and other provisions

Insert in appropriate order in Part 21 (as inserted by Schedule 5.1 [12]):

  

Division 4 Provisions relating to development contributions

127   Definitions

In this Division:

former contributions provisions means the provisions of Division 6 or 6A of Part 4 as in force before their repeal by the amending Act.

new contributions provisions means the provisions of Part 5B and Schedule 1.

128   Savings and transitional regulations

Regulations made under Part 1 of this Schedule have effect despite anything to the contrary in this Part.

129   Existing contributions conditions, agreements and actions

(1)  A condition of development consent imposed under the former contributions provisions is taken to have been imposed under the corresponding provision of the new contributions provisions.

(2)  A planning agreement in force under the former contributions provisions immediately before the repeal of those provisions by the amending Act is taken to be a planning agreement under the corresponding provisions of the new contributions provisions.

(3)  Any action taken by the Minister or a consent authority under or for the purposes of the former contributions provisions is, to the extent that the action has any force or effect immediately before the repeal of those provisions by the amending Act, taken to be an action of the Minister or consent authority under and for the purposes of the corresponding provisions of the new contributions provisions.

(4)  A reference in this Act to a State infrastructure contribution includes a reference to a special infrastructure contribution (being a contribution provided for under Subdivision 4 of Division 6 of Part 4) paid or required to be paid by a condition of development consent imposed before the commencement of this clause.

(5)  The new contributions provisions extend to levies paid or payable under the former contributions provisions as if those levies were monetary contributions paid or payable under the new contributions provisions.

130   Existing contributions plans

(1)  A contributions plan in force under the former contributions provisions immediately before the commencement of this clause (an existing contributions plan) is repealed on 31 March 2010 unless the contributions plan is remade by the Minister under this clause before that date.

(2)  The Minister may, by direction in writing to a council, remake an existing contributions plan on behalf of the council if the Minister is satisfied that the plan provides for a community infrastructure contribution in respect of community infrastructure that is:

(a)  the subject of a contract with the council for its construction, or

(b)  the subject of a loan or other debt financing arrangement with a bank or other recognised financial institution for its forward funding, or

(c)  the subject of a commitment for its construction in the council’s budget for the 2007–08 financial year, or

(d)  for which land acquisition has been commenced by the council, either by exchange of contracts for purchase or a compulsory acquisition process.

(3)  The Minister may call on councils to submit contributions plans together with supporting information by 31 March 2009 (or a later date determined by the Minister) for consideration for remaking by the Minister under this clause.

(4)  In remaking a contributions plan under this clause, the Minister is not subject to section 116I (Councils limited to contributions for key community infrastructure) or to the regulations.

(5)  The remaking of a contributions plan by the Minister under this clause has effect as if the contributions plan had been made by the council.

(6)  A provision of an existing contributions plan that is remade by the Minister under this clause operates to allow the council to require a community infrastructure contribution for community infrastructure even if it is not key community infrastructure (despite section 116I).

(7)  Subclause (6) does not apply to any provision of a contributions plan that results from the amendment of the contributions plan after it is remade by the Minister unless the effect of the amendment is only:

(a)  to update a works schedule to reflect revised construction costs or the completion of works on the schedule, or

(b)  to make minor or consequential amendments arising from any change to an environmental planning instrument or a development control plan.

(8)  A person cannot appeal to the Court under this Act (despite section 123 or any other provision of this Act) in respect of:

(a)  the remaking of a contributions plan by the Minister under this clause, or

(b)  the reasonableness in the particular circumstances of a requirement for a community infrastructure contribution that is determined in accordance with any such contributions plan.

(9)  In this clause:

key community infrastructure means community infrastructure that is key community infrastructure for the purposes of section 116I.

131   State Infrastructure Fund

The State Infrastructure Fund established by the amending Act under the new contributions provisions is a continuation of the Special Contributions Areas Infrastructure Fund established under the former contributions provisions.

3.2 Amendment of Growth Centres (Development Corporations) Act 1974 No 49

[1]   Sections 25 and 26

Insert after section 24:

  

25   Community Infrastructure Trust Fund

(1)  There is established by this section a fund called the Community Infrastructure Trust Fund.

(2)  The Fund is to be administered by the Secretary of the Treasury. The Secretary is to consult the Director-General and the trustees appointed under subsection (9) in relation to the administration of the Fund.

(3)  The following is to be paid into the Fund:

(a)  monetary contributions paid under, and the proceeds of the sale of land dedicated under, Division 2 (Community infrastructure contributions) of Part 5B of the Environmental Planning and Assessment Act 1979 in respect of development within a growth centre (or other area of land) that is specified in Schedule 3 (Community Infrastructure Trust Fund areas),

(b)  any money appropriated by Parliament for the purposes of the Fund,

(c)  the proceeds of the investment of money in the Fund,

(d)  any other money required to be paid into the Fund by or under this or any other Act or the regulations under this Act.

(4)  The following is to be paid from the Fund:

(a)  payments to public authorities for the provision of public 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.

(5)  The assets of the Fund can only be applied for the purposes referred to in this section.

(6)  Money in the Fund may be kept in one or more financial institutions.

(7)  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 Secretary of the Treasury to invest the money, in any other manner approved by the Treasurer.

(8)  The Secretary of the Treasury may delegate any function of the Secretary under this section (other than this power of delegation) to:

(a)  in the case of a growth centre that is specified in Schedule 3—the chief executive of the development corporation constituted for the growth centre, or

(b)  in the case of any other area of land specified in Schedule 3—the Director-General.

(9)  The Minister is to appoint an independent board of 6 trustees for the purposes of this section, comprising 2 representatives of local government, 2 representatives of the Department of Planning, and 2 representatives of the Treasury nominated by the Treasurer.

26   Minister may make, amend or repeal Community Infrastructure Trust Fund areas

(1)  The Minister may, by order published in the Gazette, amend Schedule 3 for the purpose of:

(a)  including a reference to a growth centre, or

(b)  removing a reference to a growth centre or other area of land, or

(c)  changing a reference to a growth centre or other area of land.

(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.

[2]   Schedule 3

Insert after Schedule 2:

  

Schedule 3 Community Infrastructure Trust Fund areas

(Section 26)

1   The land shown edged heavy red on the map entitled “North West Growth Centre—Community Infrastructure Trust Fund Area” and on the map entitled “South West Growth Centre—Community Infrastructure Trust Fund Area”, copies of which are deposited in the office of the Department of Planning.

Note. Both these areas of land were formerly listed as growth centres under this Act.

3.3 Amendment of Environmental Planning and Assessment Regulation 2000

[1]   Clause 25D

Omit the clause. Insert instead:

  

25D   Public notification of planning agreements

(1)  A planning agreement cannot be entered into, amended or revoked unless:

(a)  public notice has been given of the proposed agreement, amendment or revocation, and

(b)  an explanatory note for the proposed agreement, amendment or revocation has been made available for inspection by the public for a period of not less than 28 days.

(2)  If a proposed planning agreement or amendment of a planning agreement is changed after public notice is given of the proposed agreement or amendment but the change does not result in a significant reduction in the public benefit to be provided by the developer under the proposed agreement or amendment:

(a)  no further public notice is required under this clause of the proposed agreement or amendment, and

(b)  the requirement that an explanatory note for the proposed agreement or amendment be made available does not require that an explanatory note be made available for the proposed agreement or amendment as changed.

(3)  If the proposed planning agreement, amendment or revocation is in connection with a development application or a project application, the responsible planning authority is to ensure that the required public notice of the proposed agreement, amendment or revocation is given:

(a)  in the case of an agreement in connection with a development application:

(i)  if practicable, as part of and contemporaneously with, and in the same manner as, any notice of the development application that is required to be given by a consent authority for a development application by or under the Act, or

(ii)  if it is not practicable for notice to be given contemporaneously, as soon as possible after any notice of the development application that is required to be given by a consent authority for a development application by or under the Act and in the manner determined by the planning authorities that are parties to the agreement, or

(b)  in the case of an agreement in connection with a project application:

(i)  if practicable, as part of and contemporaneously with, and in the same manner as, any notice of an environmental assessment in connection with the application that is required to be given by the Director-General by or under the Act, or

(ii)  if it is not practicable for notice to be given contemporaneously, as soon as possible after any notice of an environmental assessment for the project that is required to be given by the Director-General by or under the Act and in the manner determined by the planning authorities that are parties to the agreement.

(4)  If the proposed planning agreement, amendment or revocation is in connection with a proposed change to a local environmental plan, the responsible planning authority is to ensure that the required public notice of the proposed agreement, amendment or revocation is given:

(a)  if practicable, as part of and contemporaneously with, and in the same manner as, any community consultation on the relevant planning proposal under Part 3 of the Act, or

(b)  if it is not practicable for notice to be given contemporaneously, as soon as possible after any community consultation on the relevant planning proposal under Part 3 of the Act and in the manner determined by the planning authorities that are parties to the agreement.

(5)  In the case of a planning agreement of a kind other than an agreement referred to in subclause (1), (2) or (3) of which public notice is required to be given under this clause, the Director-General is to ensure that public notice of the proposed agreement, amendment or revocation is given not less than 28 days before the agreement is entered into or amended or revoked and in the manner determined by the planning authorities that are parties to the agreement.

(6)  The public notice of a proposed agreement, amendment or revocation must specify the arrangements relating to inspection by the public of copies of the explanatory note for the proposed agreement, amendment or revocation.

(7)  In this clause:

explanatory note means an explanatory note prepared in accordance with clause 25E.

project application has the same meaning as it has in Part 1A.

responsible planning authority for a proposed planning agreement or the amendment or revocation of a planning agreement is the planning authority that proposes to enter into the planning agreement or the agreement that revokes or amends the planning agreement.

[2]   Clause 25E Explanatory note

Omit clause 25E (5) and (6). Insert instead:

  

(5)  If a council is not a party to a planning agreement that applies to the area of the council, a copy of the explanatory note must be provided to the council when a copy of the agreement is provided to the council under clause 25EA.

[3]   Clause 25EA

Insert after clause 25E:

  

25EA   Copies of planning agreements to be provided to Minister and council

(1)  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.

(2)  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.

(3)  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.

[4]   Clauses 31A and 31B

Insert after clause 31:

  

31A   Key community infrastructure and additional community infrastructure

(1)  The following community infrastructure is prescribed as key community infrastructure for the purposes of sections 116I and 116V of the Act:

(a)  local roads,

(b)  local bus facilities,

(c)  local parks,

(d)  local sporting, recreational and cultural facilities and local social facilities (being community and child care centres and volunteer rescue and volunteer emergency services facilities),

(e)  local car parking facilities,

(f)  drainage and stormwater management works,

(g)  land for any community infrastructure (except land for riparian corridors),

(h)  district infrastructure of the kind referred to in paragraphs (a)–(e) but only if there is a direct connection with the development to which a contribution relates.

(2)  Public infrastructure comprising land for riparian corridors cannot be approved under section 116I or 116V of the Act as additional community infrastructure or additional public infrastructure.

(3)  In this clause:

facilities means buildings and works.

31B   Material to be provided by council seeking approval for additional infrastructure contributions

A council requesting the Minister’s approval under section 116I or 116V of the Act to the making of a contributions plan or the entering into of a planning agreement providing for development contributions for additional community infrastructure or the provision of public infrastructure must provide to the Minister:

(a)  a business plan that establishes how the infrastructure concerned can be fully funded by the council and can be provided and fully operational within the period to be specified in the contributions plan or planning agreement, and

(b)  a report (provided by a suitably qualified person who is independent of the council) that assesses the proposed development contributions against the key considerations for development contributions for the purposes of Part 5B of the Act.

3.4 Amendment of City of Sydney Act 1988 No 48

[1]   Section 61 Development contributions

Omit section 61 (1). Insert instead:

  

(1)  Despite Part 5B of the Planning Act, a contributions plan prepared and approved under that Part in respect of the whole or any part of the land to which the Central Sydney Local Environmental Plan 1996 applies may authorise the imposition of a condition that the applicant for development consent pay a levy to the City Council of 1% of the cost, as estimated by the consent authority, of the proposed development.

[2]   Section 61 (4) (a)

Omit “Division 6 of Part 4 of”. Insert instead “Part 1 of Schedule 1 to”.

[3]   Section 61 (5)

Omit “Part 4”. Insert instead “Part 5B”.

[4]   Section 61 (7)

Omit the subsection. Insert instead:

  

(7)  A condition authorised by this section is not affected by the enactment of the Environmental Planning and Assessment Amendment (Development Contributions) Act 2005. However, this section ceases to apply if a contributions plan is prepared and approved under Part 5B of the Planning Act that authorises a requirement for an indirect contribution under Division 2 of that Part in relation to the land to which this section applies.

Schedule 4 Amendments relating to certification of development

(Section 3)

4.1 Amendment of Environmental Planning and Assessment Act 1979 No 203

[1]   Section 4 Definitions

Omit the definition of accredited certifier from section 4 (1).

[2]   Section 4 (1)

Insert the following definitions in alphabetical order:

  

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

design certificate means a design certificate required to be issued under section 109IA.

[3]   Section 80A Imposition of conditions

Insert after section 80A (6) (c):

  

(d)  ensuring compliance with the terms of the development consent during the carrying out of any building work or subdivision work.

[4]   Section 80A (7A)

Insert after section 80A (7):

  

(7A)  Despite subsection (7), if the regulations make provision for or with respect to the maximum amount of security that may be required for a purpose referred to in subsection (6) (d), the security required for any such purpose is not to exceed the maximum amount determined in accordance with the regulations.

[5]   Section 80A (10)–(10AC)

Omit section 80A (10). Insert instead:

  

(10)  The funds realised from a security may:

(a)  be paid out to meet any cost referred to in subsection (6) (a)–(c), and

(b)  be paid out to meet any cost referred to in subsection (6) (d), but only in the circumstances prescribed by the regulations.

(10AA)  Any balance of the funds realised from a security remaining after meeting the costs referred to in subsection (10) is to be refunded to, or at the direction of, the persons who provided the security.

(10AB)  A person who provides security for the purposes referred to in subsection (6) (d) is entitled to request the release of any such balance of funds realised from the security only after:

(a)  in the case of building work where an occupation certificate is issued:

(i)  the date of issue of a final occupation certificate as a result of the building work, or

(ii)  the date that is 12 months after the date of issue of an interim occupation certificate as a result of the building work,

      whichever occurs first, or

(b)  in the case of building work where no occupation certificate is issued—the date of the first lawful occupation or use of a building or part of a building resulting from that building work (as determined in accordance with section 109M), or

(c)  in the case of subdivision work—the date of issue of a subdivision certificate as a result of the subdivision work.

(10AC)  If the consent authority has paid out any of those funds for a purpose referred to in subsection (6) (d), the consent authority must, within 14 days after receiving a request under subsection (10AB) for the release of the funds, give written reasons to the person who provided the security as to why the consent authority considers it was entitled to use those funds.

[6]   Section 81A Effects of development consents and commencement of development

Insert “, and the principal certifying authority if that is not the council,” after “council” wherever occurring in section 81A (2) (c) and (4) (c).

[7], [8]   (Repealed)

[9]   Section 86 Commencement of complying development

Insert “, and the principal certifying authority if that is not the council,” after “council” wherever occurring in section 86 (1) (b) and (2) (b).

[10]   Section 98A Appeal concerning security

Insert “that relates to security of a kind referred to in section 80A (6) (a)–(c)” after “subsection (1) (b)” in section 98A (3).

[11]   Section 98A (4)

Insert after section 98A (3):

  

(4)  An appeal with respect to a failure or refusal referred to in subsection (1) (b) that relates to security of a kind referred to in section 80A (6) (d) may be made within 6 months after the date after which the person who provided the security may request the release of funds realised from the security under section 80A (10AB).

[12]–[14]   (Repealed)

[15]   Section 109EA Replacement of principal certifying authorities

Omit section 109EA (1) (b). Insert instead:

  

(b)  the current principal certifying authority, the proposed principal certifying authority and a person who is eligible to appoint a principal certifying authority for the development agree.

[16]   Section 109EB

Insert after section 109EA:

  

109EB   Directions by certifying authorities

(1)  A reference in this section to a non-compliance in respect of an aspect of development is a reference to:

(a)  a failure to comply with a condition of a development consent relating to the manner in which construction of that aspect of development is carried out on the relevant site (including, for example, a condition relating to the hours during which construction may be carried out or the measures to be taken to reduce impacts on adjoining land), and

(b)  any matter arising during the course of carrying out that aspect of development that would prevent the issuing of a final occupation certificate or a subdivision certificate in respect of that aspect of development.

(2)  If a certifying authority for an aspect of development becomes aware of any non-compliance in respect of the aspect of development, the certifying authority must issue a notice in writing to the person responsible for carrying out that aspect of the development:

(a)  identifying the matter that has resulted or would result in the non-compliance, and

(b)  directing the person to take specified action within a specified period to remedy the matter.

(3)  If a certifying authority gives a direction under this section and the direction is not complied with within the time specified in the notice containing the direction, the certifying authority that issued the direction is, within the period prescribed by the regulations, to send a copy of the notice to the consent authority and to notify the consent authority of the fact that the direction has not been complied with.

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

(a)  the procedure for issuing notices under this section,

(b)  requirements in relation to follow-up action,

(c)  the keeping of records in relation to notices given and follow-up action taken,

(d)  requirements for any matter or record relating to a notice or follow-up action to be notified to specified persons.

[17]   Section 109IA

Insert after section 109I:

  

109IA   Design certificates required for certain aspects of development

(1)  A Part 4A certificate must not be issued in relation to any aspect of development required by the regulations to be designed by a person holding accreditation under the Building Professionals Act 2005 unless:

(a)  that aspect of the development was designed by the holder of a certificate of accreditation under that Act that authorises the holder to prepare such designs, and

(b)  the holder has issued a design certificate in relation to the design certifying that he or she prepared the design and in doing so complied with the relevant requirements of this Act and the regulations.

(2)  The regulations may make provision for or with respect to any of the following:

(a)  the preparation of designs referred to in this section,

(b)  the form and content of design certificates issued for the purposes of this section,

(c)  requirements relating to the preparation of such design certificates,

(d)  savings and transitional provisions modifying the application of subsection (1) as a consequence of the making of a regulation for the purposes of that subsection.

[18]   Section 109L Accredited certifiers may issue notices requiring work to be carried out

Omit the section.

[19]   Section 109PA

Insert after section 109P:

  

109PA   Certifying authorities may apply for advice

(1)  Before issuing a construction certificate for building work or subdivision work, a certifying authority may make an application to the consent authority for advice as to whether, in the opinion of the consent authority, the design and construction of any building or work to which the certificate relates is consistent with the relevant development consent.

(2)  Before issuing a final occupation certificate for a building or part of a building, a certifying authority may make an application to the consent authority for advice as to whether, in the opinion of the consent authority, the design and construction of the building is consistent with the relevant development consent or complying development certificate.

(3)  If the consent authority does not deal with an application made to it under this section within 21 days after receiving the application, the consent authority is taken to have given advice that the building, part of the building or work concerned is consistent with the relevant development consent or complying development certificate.

(4)  If a consent authority has given advice under this section that the design and construction of a building, part of a building or work is consistent with the relevant development consent or complying development certificate, a construction certificate or final occupation certificate issued in reliance on that advice may not be challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings at the request of the consent authority on the basis that the design and construction of the building (or part) or work concerned is not consistent with the relevant development consent or complying development certificate.

(5)  The regulations may make provision for or with respect to applications for advice under this section (including the information to be provided with such applications), the form in which advice is to be given under this section and fees in connection with the making of such applications and the giving of advice.

(6)  In this section:

(a)  a reference to the design and construction of a building is, in relation to the issue of a construction certificate, a reference to the design and construction of the building as depicted in the plans and specifications furnished to the certifying authority and as described in any other information furnished to the certifying authority in accordance with the regulations, and

(b)  a reference to a building, part of a building or work being consistent with a development consent or complying development certificate is a reference to the building, part or work being consistent with the development consent or complying development certificate as determined in accordance with the regulations (if any).

[20]–[22]   (Repealed)

[23]   Section 117B

Insert after section 117A:

  

117B   Action that may be taken against council following investigation

(1)  If the Building Professionals Board has made its final report of the results of an investigation under section 45 of the Building Professionals Act 2005 in relation to a council publicly available and is of the opinion that the council has not taken appropriate action about a matter investigated, the Board may:

(a)  make recommendations to the Director-General of the Department of Local Government as to the measures that it considers appropriate to be taken in relation to the matter, or

(b)  recommend to the Minister that the Minister take action against the council under this section.

Note. Section 45 of the Building Professionals Act 2005 enables the Building Professionals Board to investigate the work and activities of a council in its capacity as a certifying authority.

(2)  The Minister may, on the recommendation of the Board under this section and following consultation with the Minister administering the Local Government Act 1993, make an order suspending a council’s authority to exercise all or specified functions of a certifying authority.

(3)  A council must comply with an order under this section that relates to the council.

(4)  Despite any other provision of this Act, a council that is the subject of an order must not exercise any function of a certifying authority while the council’s authority to exercise that function is suspended by operation of the order.

(5)  An order does not operate to suspend a council’s authority to exercise the functions of a certifying authority in relation to any matter being dealt with by the council as a certifying authority before the commencement of the order, unless the order provides otherwise.

(6)  An order may contain provisions of a savings or transitional nature consequent on the suspension contained in the order.

(7)  Without limiting subsection (6), an order may contain provisions for or with respect to the following:

(a)  the way in which any pending matter being dealt with by the relevant council as a certifying authority is to be completed, including, for example, enabling the council to complete any such matter or providing for the matter to be completed by an accredited certifier,

(b)  directing any fee paid to the council to act as a certifying authority in relation to any pending matter to be refunded,

(c)  directing the council to pay any fees required to be paid to an accredited certifier to complete any pending matter being dealt with by the council as a certifying authority.

(8)  The Minister must revoke an order if satisfied that the relevant council has implemented measures to address the matters that led to the making of the order.

(9)  Nothing prevents the Minister from amending an order made under this section by another order, including amending the first order to change the functions of a certifying authority to which the first order relates.

(10)  An order under this section must be in writing and published in the Gazette and takes effect on the day on which it is published in the Gazette or on a later day specified in the order.

(11)  Section 109E (1AA) does not require a council to accept an appointment as principal certifying authority if the council would contravene subsection (4) by accepting the appointment.

(12)  An order under this section may be made whether or not any action has been taken by the Minister under section 118 in relation to the exercise of all or any of the functions of the council concerned.

[24]–[26]   (Repealed)

[27]   Section 121B Orders that may be given by consent authority or by Minister etc

Insert at the end of the Table to section 121B (1):

  

19

To cease carrying out specified building work or subdivision work

(a)  Building work or subdivision work is being carried out in contravention of this Act (b)  Building work or subdivision work is being carried out that affects the support of adjoining premises

Owner of land or any person apparently engaged in carrying out the building work or subdivision work

[28]   Section 121CA

Insert after section 121C:

  

121CA   Compliance cost notices

(1)  A person (the relevant authority) who gives an order under this Division to another person may, by notice in writing served on the other person, require the other person to pay all or any reasonable costs and expenses incurred by the relevant authority in connection with:

(a)  monitoring action under the order, and

(b)  ensuring that the order is complied with, and

(c)  any other associated matters.

(2)  A notice under subsection (1) (a compliance cost notice) is to specify the amount required to be paid and a reasonable period within which the amount is to be paid or, if the regulations prescribe the period to be allowed for payment, that period.

(3)  The relevant authority may recover any unpaid amounts specified in a compliance cost notice as a debt in a court of competent jurisdiction.

(4)  If the person given a compliance cost notice complies with the notice but was not the person who was responsible for the situation giving rise to the issue of the notice, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who was responsible.

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

(a)  the issue of compliance cost notices,

(b)  the form of compliance cost notices,

(c)  limiting the amounts that may be required to be paid under compliance cost notices or the matters in respect of which costs and expenses may be required to be paid under those notices.

[29]   Section 121D Circumstances in which compliance with sections 121F–121K is required

Omit section 121D (a). Insert instead:

  

(a)  order No 8 or No 19 in the Table to section 121B (1), or

[30]   Section 121ZKA

Insert after section 121ZK:

  

121ZKA   Appeals concerning compliance cost notices

(1)  A person on whom a notice under section 121CA (a compliance cost notice) is served may appeal against the notice to the Local Court within 28 days after the service of the notice on the person.

(2)  If an appeal is lodged under section 121ZK against an order in relation to which a compliance cost notice has been issued:

(a)  an appeal may be lodged against the compliance cost notice in the same way as, and at the same time as, the appeal against the order, and

(b)  the Court may deal with the appeal against the compliance cost notice at the same time as it deals with the appeal against the order.

(3)  On hearing an appeal against a compliance cost notice, the Local Court or the Court may:

(a)  revoke the notice, or

(b)  modify the notice, or

(c)  make any other order with respect to the notice as the Court thinks fit.

[31]   (Repealed)

[32]   Schedule 6 Savings, transitional and other provisions

Insert in appropriate order in Part 21 (as inserted by Schedule 5.1 [12]):

  

Division 5 Provisions relating to certification

132   Section 109L notices

Section 109L is taken to continue to have effect in relation to notices served under that section before its repeal.

133   Section 109ZK

The amendment made to section 109ZK by the amending Act does not apply to any building work or subdivision work commenced before the commencement of the amendment.

4.2 Amendment of Environmental Planning and Assessment Regulation 2000

[1]   Clause 129B

Insert after clause 129A:

  

129B   Restriction on issue of complying development certificate

A certifying authority must not issue a complying development certificate for development unless a council or an accredited certifier has carried out an inspection of the site of the development.

[2]   (Repealed)

[3]   Clause 143B

Insert after clause 143A:

  

143B   Restriction on issue of certain construction certificates without inspection

A certifying authority must not issue a construction certificate for development on a site which affects an existing building unless a council, a consent authority or an accredited certifier has carried out an inspection of the building.

[4]   Clause 145 Compliance with development consent and Building Code of Australia

Omit “not inconsistent with” wherever occurring in clause 145 (1) (a) and (2).

Insert instead “consistent with”.

[5]   (Repealed)

[6]   Clause 154D

Insert after clause 154C:

  

154D   Compliance with development consent

(1)  If a certifying authority issues an interim occupation certificate for a building or part of a building where the design and construction of the building or part are not consistent with the relevant development consent or complying development certificate, the certifying authority must record on the certificate information identifying the nature and extent of the inconsistency.

(2)  A certifying authority must not issue a final occupation certificate for a building or part of a building unless the design and construction of the building or part are consistent with the relevant development consent or complying development certificate.

[7]   (Repealed)

[8]   Clause 162A Critical stage inspections required by section 109E (3) (d)

Omit clause 162A (4) (a), (5) (a) and (6) (a).

[9]   Clause 162A (7)

Omit the subclause.

[10]   Clause 162A (7A)

Insert before clause 162A (8):

  

(7A)  After the commencement of this subclause, the following inspections of building work must be made in addition to those required by the other provisions of this clause for the building work:

(a)  in the case of a swimming pool, after the construction of the swimming pool is completed and the fence (if one is required) has been erected and before the pool is filled with water,

(b)  in the case of a class 2, 3, 4, 5, 6, 7, 8 or 9 building, after excavation for, and prior to the placement of, any footings,

(c)  in the case of a class 2, 3, 4, 5, 6, 7, 8 or 9 building, before all walls, floors and ceilings required by the Building Code of Australia to have a fire-resistance level specified in that Code are enclosed,

(d)  in the case of a class 2, 3, 4 or 9c building, before all walls, floors and ceilings required by the Building Code of Australia to comply with sound insulation requirements specified in that Code are enclosed.

[11]–[13]   (Repealed)

4.3, 4.4

Schedule 5 Miscellaneous amendments

(Section 3)

5.1 Amendment of Environmental Planning and Assessment Act 1979 No 203

[1]   Section 4 Definitions

Omit the definitions of place of public entertainment and public entertainment from section 4 (1).

[2]   Section 79BA Consultation and development consent—certain bush fire prone land

Omit section 79BA (1). Insert instead:

  

(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 the document entitled Planning for Bush Fire Protection, ISBN 0 9751033 2 6, prepared by the NSW Rural Fire Service in co-operation with the Department of Planning (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or

(b)  has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.

(1A)  If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it 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.

[3]   Section 108 Regulations respecting existing use

Omit “and” from section 108 (1) (c) and section 108 (1) (d).

[4]   Section 109 Continuance of and limitation on other lawful uses

Omit section 109 (4).

[5]   Section 116GA Crown development for public entertainment (renumbered as section 115ZA by Schedule 3.1 [5] or as section 109S by Schedule 2.2 [58])

Omit the section.

[6]   Section 121B Orders that may be given by consent authority or by Minister etc

Omit item 13A of the Table to section 121B (1).

[7]   Section 155

Insert after section 154:

  

155   Paper subdivisions

Schedule 5 has effect.

[8]   Section 157 Regulations

Omit section 157 (1) (d2). Insert instead:

  

(d2)  entertainment venues (including in connection with the existing use of premises), or

[9]   Schedule 5

Insert in appropriate order:

  

Schedule 5 Paper subdivisions

(Section 155)

1   Definitions

In this Schedule:

development plan—see clause 6.

planning purpose—see clause 3 (1) (c).

relevant authority for subdivision land means the authority designated by a subdivision order as the relevant authority for the land.

subdivision land means land subject to a subdivision order.

subdivision order means an order under clause 3.

subdivision works means works for the following purposes:

(a)  roads,

(b)  water supply, sewerage services and drainage,

(c)  telecommunications,

(d)  electricity supply.

2   Subdivision authorities

Any of the following authorities may be designated in a subdivision order as the relevant authority for the subdivision land:

(a)  the corporation,

(b)  a council,

(c)  Landcom,

(d)  a development corporation established under the Growth Centres (Development Corporations) Act 1974,

(e)  any other body prescribed by the regulations.

3   Subdivision orders

(1)  The Minister may, by order published in the Gazette:

(a)  declare specified land to be subdivision land, and

(b)  specify the relevant authority for the subdivision land, and

(c)  specify the purpose for which the order is made (the planning purpose), and

(d)  specify the functions (if any) under this Schedule conferred on the relevant authority, and

(e)  specify the conditions (if any) to which the exercise of those functions are subject, and

(f)  specify the subdivision works (if any) to be undertaken by the relevant authority in respect of the subdivision land.

(2)  The Minister may make a subdivision order only if:

(a)  the Minister is of the opinion that it is desirable to do so to promote and co-ordinate the orderly and economic use and development of the land affected by the order, and

(b)  the land has been subdivided and is held by more than one owner and the Minister is satisfied that the land is land for which no provision or inadequate provision has been made for subdivision works, and

(c)  that land is subject to an environmental planning instrument, or a planning proposal, that will facilitate the proposed planning purpose, and

(d)  the Minister has consulted with the proposed relevant authority, any other Minister responsible for that authority and the council of the area in which that land is situated, and

(e)  the Minister is satisfied that a development plan for that land has been prepared by the relevant authority in accordance with this Schedule, and

(f)  the Minister has considered any provisions of the development plan that modify or disapply the provisions of Division 4 of Part 3 of the Land Acquisition (Just Terms Compensation) Act 1991, and

(g)  at least 60% of the total number of owners of that land, and the owners of at least 60% of the total area of that land, have consented to the proposed development plan.

(3)  For the purposes of subclause (2) (b) and (g), 2 or more owners of the same lot are to be treated as one owner.

4   Functions of relevant authority

(1)  A relevant authority has the functions conferred on it by a subdivision order.

(2)  A relevant authority may only exercise functions conferred on it under a subdivision order for the purposes of, or purposes ancillary to, the planning purpose specified in the subdivision order.

(3)  Functions conferred on a relevant authority by a subdivision order are in addition to any other functions conferred on the authority under any other law.

(4)  Clauses 7–13 set out the functions that may be conferred on a relevant authority under a subdivision order but do not otherwise confer those functions on a relevant authority.

(5)  A relevant authority may not exercise functions under clause 7 or 9 unless there is a development plan in force in relation to the subdivision land.

5   Obligations of relevant authority

A relevant authority must, in accordance with the subdivision order and any development plan applicable to the subdivision land, give effect to the planning purpose specified in the order and must undertake or arrange for the undertaking of any subdivision works specified in the order.

6   Development plans

(1)  An authority referred to in clause 2 may, and must at the request of the Minister, prepare a development plan for subdivision land or proposed subdivision land.

(2)  A development plan is to contain the following matters:

(a)  a proposed plan of subdivision for the land,

(b)  details of subdivision works to be undertaken for the land,

(c)  details of the costs of the subdivision works and of the proposed means of funding those works,

(d)  details of the proportion of those costs to be borne by the owners of the land and of the manner in which the owners may meet those costs (including details of any proposed voluntary land trading scheme or voluntary contributions or, if voluntary measures are not agreed to by owners, of compulsory land acquisition or compulsory contributions),

(e)  rules as to the form of compensation for land that is compulsorily acquired and how entitlement to compensation is to be calculated,

(f)  rules as to the distribution of any surplus funds after the completion of subdivision works for the land,

(g)  any other matters prescribed by the regulations.

(3)  Regulations may be made for or with respect to procedures for the preparation, public notification, adoption, publication, amendment and repeal of development plans.

(4)  The validity of a development plan must 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.

7   Land acquisition powers

(1)  A relevant authority may, for a planning purpose specified in a subdivision order, acquire subdivision land by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

(2)  A relevant authority may not give a proposed acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991 without the approval of the Minister.

(3)  The following provisions apply if compensation provided for that acquisition is in accordance with the rules set out in a development plan in force in relation to the land:

(a)  sections 44 (2), 45 (3), 49–51, 64, 66 (4) and 68 (2) of the Land Acquisition (Just Terms Compensation) Act 1991 do not apply in relation to compensation other than monetary compensation,

(b)  all or any provisions of Division 4 of Part 3 of that Act do not apply, or apply with modifications, if the development plan so provides.

(4)  The rules set out in a development plan may provide that all or any of the provisions of Division 4 of Part 3 of the Land Acquisition (Just Terms Compensation) Act 1991 do not apply to the determination of compensation under that plan, or apply with such modifications as are set out in that plan.

(5)  If the rules set out in a development plan make provision as referred to in subclause (4), the Valuer-General must determine compensation to be offered to a person under the Land Acquisition (Just Terms Compensation) Act 1991 in respect of land acquired under this clause in accordance with the rules set out in any applicable development plan adopted by a relevant authority for the land.

(6)  For the purposes of this clause, a reference in the Land Acquisition (Just Terms Compensation) Act 1991 to an amount of compensation includes a reference to compensation other than monetary compensation and a reference to payment of compensation includes a reference to the provision of such compensation.

(7)  Subclauses (3)–(6) have effect despite any provision of the Land Acquisition (Just Terms Compensation) Act 1991.

8   Other powers to acquire and dispose of land

A relevant authority may sell, lease, exchange, mortgage or otherwise deal with or dispose of subdivision land vested in the authority, or an interest in that land, and may grant easements, rights-of-way or covenants over that land.

9   Contribution powers

(1)  A relevant authority may, by notice in writing, require an owner of subdivision land to make a reasonable monetary contribution for the provision, extension or augmentation of subdivision works.

(2)  A requirement under this clause must be in accordance with the development plan applicable to the subdivision land.

(3)  The amount payable by the owner of subdivision land under this clause is to be reduced by the amount or value of any voluntary contribution (whether a monetary or other contribution) made by the owner for the provision, extension or augmentation of subdivision works in accordance with the development plan applicable to the subdivision land or an agreement with the relevant authority.

(4)  Compliance with a requirement for a contribution under this clause, or a voluntary contribution made in accordance with a development plan, operates to satisfy any other requirement imposed by a public authority under this or any other Act (in relation to or in connection with the subdivision land) for the dedication of land or the payment of money in respect of the provision of the same subdivision works, to the extent of the value of the land dedicated or the amount of money paid in compliance with the requirement.

(5)  The regulations may make provision for the determination of the value for the purposes of this clause of the land dedicated or traded to the authority in accordance with a development plan.

(6)  A contribution required to be made under this clause may be in addition to any other contribution required to be made under this Act.

10   Use of monetary contributions and other amounts

(1)  The following are to be paid by the authority to a fund or funds approved by the Minister:

(a)  a monetary contribution paid to a relevant authority by the owner of subdivision land for subdivision works,

(b)  any money paid by the relevant authority to meet contribution amounts under the development plan in respect of land acquired by the authority under this Schedule,

(c)  the proceeds of any disposal by the relevant authority of land acquired under this Schedule.

(2)  The following may be paid from any fund to which contributions or amounts are paid under this clause:

(a)  payments to persons or bodies with respect to the provision of subdivision works,

(b)  payments in connection with the exercise of functions by the relevant authority for the planning purpose specified in the subdivision order,

(c)  payments for the whole or part of compensation payable under clause 7 and any payments required to be made under the Land Acquisition (Just Terms Compensation) Act 1991,

(d)  payments for the distribution of any surplus funds after the completion of subdivision works and any other payments under this clause,

(e)  any money required to meet the administrative expenses of the relevant authority in relation to its functions under the subdivision order.

11   Powers to carry out subdivision works

(1)  The relevant authority may carry out, or arrange for the carrying out of, subdivision works with respect to subdivision land.

(2)  The relevant authority may enter into contracts and other arrangements for the carrying out of subdivision works.

(3)  A relevant authority may make a development application to carry out development on subdivision land for the purposes of subdivision works without the consent of the owner of the land.

(4)  The consent authority may grant consent to any such development application even if the owner of the land has failed to consent to the application.

(5)  In this clause, subdivision works includes the carrying out of any research or investigation related to the provision or augmentation of subdivision works.

12   Roads powers

(1)  A road within subdivision land cannot be provided, opened, dedicated, closed (within the meaning of Part 4 of the Roads Act 1993) or realigned by the Crown, a public authority or any person except with the consent of the relevant authority.

(2)  A private road, or part of a private road, within subdivision land cannot be:

(a)  provided, opened, closed or realigned, or

(b)  regulated in its use, or

(c)  used for a purpose other than a road,

      except with the consent of the relevant authority.

13   Ancillary powers

A relevant authority has, for the purpose of any other functions conferred under this Schedule, the following functions:

(a)  the authority may enter into agreements with the owners of subdivision land for the purposes of a voluntary land trading scheme or the provision of voluntary contributions or for other purposes connected with the authority’s functions under the subdivision order,

(b)  the authority may cause surveys to be made, and plans of survey to be prepared, in relation to subdivision land or proposed subdivision land (whether or not vested in the authority),

(c)  the authority may manage subdivision land vested in the authority in accordance with the development plan,

(d)  the authority may carry out research or investigation relating to subdivision works or proposed subdivision works,

(e)  the authority may (subject to this Act) subdivide and re-subdivide land, and consolidate subdivided or re-subdivided land vested in the authority,

(f)  with the consent of the owner or occupier of the land, a person authorised in writing by the authority may enter subdivision land or proposed subdivision land.

14   Power to investigate land for subdivision order proposals

An authority specified in clause 2 may, before a subdivision order is made.

(a)  cause surveys to be made, and plans of survey to be prepared, in relation to proposed subdivision land (whether or not vested in the authority), and

(b)  carry out research or investigation relating to proposed subdivision works.

15   Other powers of entry

(1)  An authorised person may, without the consent of the owner or occupier of subdivision land or proposed subdivision land and in accordance with the regulations:

(a)  enter that land for a planning purpose, or

(b)  enter that land in connection with the carrying out of subdivision works or research or investigation relating to proposed subdivision works, or

(c)  enter that land in connection with the preparation of, or research or investigation for the purposes of, a development plan or proposed development plan.

(2)  In this clause, authorised person means the following persons:

(a)  a person authorised in writing by a relevant authority,

(b)  a person authorised in writing by the Minister in connection with the exercise of the powers of an authority under clause 14.

16   Failure to pay contributions

A monetary contribution required to be paid by an owner of subdivision land under clause 9 may be recovered by the relevant authority in any court of competent jurisdiction as a debt due to the relevant authority by the owner.

17   Voluntary contributions agreements to run with land

(1)  A voluntary contributions agreement is a voluntary agreement between a relevant authority and a person who owns subdivision land under which the owner is required to pay a monetary contribution to be used for or applied for subdivision works.

(2)  A voluntary contributions agreement can be registered under this clause 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,

(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.

(3)  On lodgment by a relevant authority of an application for registration in a form approved by the Registrar-General, the Registrar-General is to register the voluntary contributions 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.

(4)  A voluntary contributions agreement that has been registered by the Registrar-General under this clause 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.

(5)  A reference in this clause to a voluntary contributions agreement includes a reference to any amendment or revocation of a voluntary contributions agreement.

18   State taxes

(1)  State tax is not chargeable in respect of any matter or thing done by a relevant authority in the exercise of its functions under this Schedule if the Minister, with the approval of the Treasurer, exempts the authority from payment of any or all State taxes.

(2)  In this clause, State tax means duty under the Duties Act 1997 or any other tax, duty, rate (including a local government rate), fee or other charge imposed by or under any Act or law of the State, other than payroll tax.

19   Obstruction of authorised persons

A person must not obstruct, hinder or interfere with a person authorised in writing by an authority specified in clause 2 or authorised under clause 15 in the exercise of the person’s functions or functions of the authority under this Schedule.

Maximum penalty: 100 penalty units.

20   Regulations

Regulations may be made for or with respect to the following matters:

(a)  the manner in which consent to a development plan is to be given by owners of land,

(b)  information to be provided to the Minister by, and reports by, relevant authorities.

[10]   (Repealed)

[11]   Schedule 6, Part 10, clause 40 (2)

Omit the subclause.

[12]   (Repealed)

5.2 Amendment of Coastal Protection Act 1979 No 13

[1]   Section 37B

Insert after section 37A:

  

37B   Concurrence of Minister not required for certain development

The concurrence of the Minister under this Part is not required in relation to the carrying out in the coastal zone of any development (within the meaning of the Environmental Planning and Assessment Act 1979) that:

(a)  requires development consent under that Act, or

(b)  is exempt development under that Act, or

(c)  is carried out in accordance with a coastal zone management plan under Part 4A of this Act.

Note. The concurrence of the Minister under this Part is also not required for an approved project within the meaning of Part 3A of the Environmental Planning and Assessment Act 1979—see section 75U (1) (a) of that Act.

[2]   Section 42 Period for consideration by Minister of proposal or application

Omit “40 days” from section 42 (1) (a). Insert instead “21 days”.

[3]   Section 42 (3)

Insert after section 42 (2):

  

(3)  The amendment made to subsection (1) by the Environmental Planning and Assessment Amendment Act 2008 does not apply in relation to any proposal or application that has been notified or forwarded to the Minister before the commencement of that amendment.

5.3 Amendment of Coastal Protection Regulation 2004

Clause 5A

Insert after clause 5:

  

5A   Concurrence of Minister not required for certain development

The concurrence of the Minister under this Regulation is not required in relation to the carrying out of any development (within the meaning of the Environmental Planning and Assessment Act 1979) that:

(a)  requires development consent under that Act, or

(b)  is exempt development under that Act, or

(c)  is carried out in accordance with a coastal zone management plan under Part 4A of the Act.

5.4 Amendment of Local Government Act 1993 No 30

[1]   Section 68 What activities, generally, require the approval of the council?

Omit item 1 of Part F of the Table to the section.

[2]   Section 90 Concurrence

Omit “40 days” from section 90 (5). Insert instead “21 days”.

[3]   Section 90 (6)

Insert after section 90 (5):

  

(6)  The amendment made to subsection (5) by the Environmental Planning and Assessment Amendment Act 2008 does not apply in relation to any application for an approval made before the commencement of that amendment.

[4]   Section 733 Exemption from liability—flood liable land, land subject to risk of bush fire and land in coastal zone

Insert after section 733 (2):

  

(2A)  A council does not incur any liability in respect of:

(a)  any advice furnished in good faith by the council relating to the likelihood of any land being subject to the risk of bush fire or the nature or extent of any such risk, or

(b)  anything done or omitted to be done in good faith by the council in so far as it relates to the likelihood of land being subject to the risk of bush fire.

[5]   Section 733 (3)

Omit “and (2)”. Insert instead “, (2) and (2A)”.

[6]   Section 733 (3) (f1)

Insert after section 733 (3) (f):

  

(f1)  the carrying out of bush fire hazard reduction works, and

[7]   Section 733 (5) (c)

Insert at the end of section 733 (5) (b):

  

, or

(c)  a manual relating to the management of land subject to the risk of bush fire.

5.5 Amendment of Local Government (General) Regulation 2005

Part 2, Division 5, Subdivision 3 (Public car parks)

Omit the Subdivision.

5.6 Amendment of Roads Act 1993 No 33

[1]   Section 25A

Insert after section 25:

  

25A   Review of road widening orders

(1)  The Minister must review the operation of road widening orders.

(2)  The review of an order must be carried out before the end of each period of 10 years following the date on which the order was published in the Gazette.

(3)  As soon as practicable after carrying out the review of an order, the Minister must notify the owner of any land affected by the order whether or not the order is to continue.

(4)  This section extends to any road widening order in force immediately before the commencement of this section. However, any such order that would, because of the operation of this section, be required to be reviewed during the period of 12 months following that commencement is not required to be reviewed until the end of that 12-month period.

[2]   Section 125 Approval to use footway for restaurant purposes

Omit section 125 (3).

5.7 Amendment of Standard Instrument (Local Environmental Plans) Order 2006

Standard instrument at end of Order

Omit the definitions of place of public entertainment and public entertainment from the Dictionary.

Historical notes

The following abbreviations are used in the Historical notes:

See also the Building Professionals Amendment Act 2008 and the Strata Management Legislation Amendment Act 2008.

Table of amending instruments

Environmental Planning and Assessment Amendment Act 2008 No 36. Assented to 25.6.2008. Date of commencement of Sch 1 (except Sch 1.1 [11] to the extent that it inserts sec 56 (2) (g) and the sentence following that paragraph, Sch 1.1 [15] and Sch 1.2 [21]) and Sch 2.1 [51] except to the extent that it inserts sec 118 (12) (d), 1.7.2009, sec 2 and 2009 (254) LW 26.6.2009; date of commencement of Schs 1.1 [15] and 2.1 [15] and [22]–[25], 27.2.2009, sec 2 and GG No 20 of 23.1.2009, p 393; date of commencement of Schs 1.2 [21], 2.1 [1] [2] [3] (to the extent that it inserts the definitions of independent hearing and assessment panel, Planning Assessment Commission and planning assessment panel) [6] [7] [8] (except to the extent that it inserts sec 23 (1) (g)) [9] (to the extent that it inserts sec 23 (1A)) [10]–[12] [13] (to the extent that it inserts Divs 1, 2 (other than secs 23D (1) (d) and 23F (3)), 4 and 6 (other than secs 23O (2) and (4) and 23P) of Part 2A) [39] [40] [42]–[44] [45] (to the extent that it inserts sec 118 (7B) and (7C)) [46]–[50] [51] (to the extent that it inserts sec 118 (12) (d)) [52]–[55] and [56] (to the extent that it inserts Sch 3), Sch 2.2 [1]–[9] [11]–[15] [16] (except to the extent that it omits sec 80 (8)) [27] [47]–[54] and [59]–[74] [75] (to the extent that it inserts the heading to Div 3 of Part 21 of Sch 6 and cl 124), Schs 2.3 [1]–[4] and [6]–[10], 2.4, 2.6–2.9 and 4.1 [1] [2] (to the extent that it inserts the definition of accredited certifier) [6] [9] [15] and [23], 3.11.2008, sec 2 and GG No 137 of 29.10.2008, p 10441; date of commencement of Sch 2.1 [3] (to the extent that it inserts the definition of joint regional planning panel) [8] (to the extent that it inserts sec 23 (1) (g) [9] (except to the extent that it inserts sec 23 (1A)) [13] (to the extent that it inserts sec 23D (1) (d), Div 3 of Part 2A and sec 23O (2)) [27] (except to the extent that it inserts sec 89C) [41] [45] (except to the extent that it inserts sec 118 (7B) and (7C)) and [56] (to the extent that it inserts Sch 4), Sch 2.2 [10] [19] [33] [39] [46] and [55]–[58], Sch 2.3 [5] and Sch 5.1 [5], 1.7.2009, sec 2 and 2009 (255) LW 26.6.2009; date of commencement of Sch 2.1 [4] (to the extent that it omits sec 20) [37] (to the extent that it inserts sec 97B) and [56] (to the extent that it omits Schs 3 and 5), Sch 2.2 [75] (to the extent that it inserts cl 125 of Sch 6) and Schs 4.1 [13] [14] and [24]–[26], 4.2 [2] [5] [7] [12] and [13], 4.3 [1] and 4.4 [1], 1.9.2008, sec 2 and GG No 100 of 22.8.2008, p 7687; date of commencement of Schs 2.1 [5], 2.10 [12], 4.1 [7] [8] [12] [20]–[22] [31] and [32] (except to the extent that it inserts cl 132 of Div 5 of Part 21 of Sch 6), 4.2 [11], 4.3 [2] and [3], 4.4 [2] and [3] and 5.1 [10] and [12], 1.8.2008, sec 2 and GG No 91 of 23.7.2008, p 7278; date of commencement of Schs 2.1 [21], 2.10 [10] and [11], 5.1 [1] [3] [4] [6] [8] and [11] and 5.7, 26.10.2009, sec 2 and 2009 (509) LW 23.10.2009; date of commencement of Schs 4.1 [27] and [29] and 4.2 [1] [3] and [8]–[10], 2.3.2009, sec 2 and GG No 29 of 6.2.2009, p 563; date of commencement of the remainder: not in force. This Act has been amended as follows:

Table of amendments