Part 1 Preliminary

1   Name of Regulation

This Regulation is the Environmental Planning and Assessment Regulation 2000.

2   Commencement

This Regulation commences on 1 January 2001.

3   Definitions

(cf clause 3 of EP&A Regulation 1994)

(1)  In this Regulation:

accredited body corporate has the same meaning as in the Building Professionals Act 2005.

alternative solution has the same meaning as in the Building Code of Australia.

approval body has the same meaning as in section 90A of the Act.

assessment method has the same meaning as in the Building Code of Australia.

Australian Rail Track Corporation Ltd means the Australian Rail Track Corporation Ltd (ACN 081 455 754).

BASIX affected building means any building that contains one or more dwellings, but does not include a hotel or motel.

BASIX affected development means any of the following development that is not BASIX excluded development:

(a)  development that involves the erection (but not the relocation) of a BASIX affected building,

(b)  development that involves a change of building use by which a building becomes a BASIX affected building,

(c)  development that involves the alteration, enlargement or extension of a BASIX affected building, where the estimated construction cost of the development is:

(i)  $100,000 or more—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 October 2006 and before 1 July 2007, or

(ii)  $50,000 or more—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 July 2007,

(d)  development for the purpose of a swimming pool or spa, or combination of swimming pools and spas, that services or service only one dwelling and that has a capacity, or combined capacity, of 40,000 litres or more.

BASIX certificate means a certificate issued by the Director-General under clause 164A.

BASIX excluded development means any of the following development:

(a)  development for the purpose of a garage, storeroom, car port, gazebo, verandah or awning,

(b)  alterations, enlargements or extensions to a building listed on the State Heritage Register under the Heritage Act 1977,

(c)  alterations, enlargements or extensions that result in a space that cannot be fully enclosed (for example, a verandah that is open or enclosed by screens, mesh or other materials that permit the free and uncontrolled flow of air), other than a space can be fully enclosed but for a vent needed for the safe operation of a gas appliance,

(d)  alterations, enlargements or extensions that the Director-General has declared, by order published in the Gazette, to be BASIX excluded development.

BASIX optional development means any of the following development that is not BASIX excluded development:

(a)  development that involves the alteration, enlargement or extension of a BASIX affected building, where the estimate of the construction cost of the development is:

(i)  less than $100,000—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 October 2006 and before 1 July 2007, or

(ii)  less than $50,000—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 July 2007,

(b)  development for the purpose of a swimming pool or spa, or combination of swimming pools and spas, that services or service only one dwelling and that has a capacity, or combined capacity, of less than 40,000 litres.

building premises, in relation to a building, means the building and the land on which it is situated.

capital investment value of a development or project includes all costs necessary to establish and operate the project, including the design and construction of buildings, structures, associated infrastructure and fixed or mobile plant and equipment, other than the following costs:

(a)  amounts payable, or the cost of land dedicated or any other benefit provided, under a condition imposed under Division 6 or 6A of Part 4 of the Act or a planning agreement under that Division,

(b)  costs relating to any part of the development or project that is the subject of a separate development consent or project approval,

(c)  land costs (including any costs of marketing and selling land),

(d)  GST (within the meaning of A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth).

Category 1 fire safety provision means the following provisions of the Building Code of Australia, namely, EP1.3, EP1.4, EP1.6, EP2.1, EP2.2 and EP3.2 in Volume One of that Code and P2.3.2 in Volume Two of that Code.

Category 2 fire safety provision means the following provisions of the Building Code of Australia, namely, CP9, EP1.3, EP1.4, EP1.6, EP2.2 and EP3.2 in Volume One of that Code.

Category 3 fire safety provision means the following provisions of the Building Code of Australia, namely, EP1.3, EP1.4, EP1.6, EP2.2 and EP3.2 in Volume One of that Code.

class, in relation to a building or part of a building, means:

(a)  in a provision of this Regulation that imposes requirements with respect to a development consent, the class to which the building belongs, as identified by that consent, or

(b)  in any other provision of this Regulation, the class to which the building or part of a building belongs, as ascertained in accordance with the Building Code of Australia.

Class 1 aquaculture development means development of the kind referred to in clause 5 (1) (d).

concurrence authority means a person whose concurrence is, by the Act or an environmental planning instrument, required by the consent authority before determining a development application.

contributions plan means a contributions plan referred to in section 94EA of the Act.

deemed-to-satisfy provisions has the same meaning as in the Building Code of Australia.

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

dwelling, in relation to a BASIX affected building, means a room or suite of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile.

entertainment venue means a building used as a cinema, theatre or concert hall or an indoor sports stadium.

environmental impact statement means an environmental impact statement referred to in section 78A or 112 of the Act.

existing use right means a right conferred by Division 10 of Part 4 of the Act.

exit has the same meaning as in the Building Code of Australia.

fire alarm communication link means that part of a fire alarm system which relays a fire alarm signal from the system to an alarm monitoring network.

Fire Commissioner means the Commissioner of New South Wales Fire Brigades.

fire compartment has the same meaning as in the Building Code of Australia.

fire link conversion means the conversion of a fire alarm communication link from connection with the fire alarm monitoring network operated by the New South Wales Fire Brigades to connection with an alarm monitoring network operated by a private service provider.

fire link conversion schedule means a conversion schedule referred to in clause 168A (2) (a).

fire protection and structural capacity of a building means:

(a)  the structural strength and load-bearing capacity of the building, and

(b)  the measures to protect persons using the building, and to facilitate their egress from the building, in the event of fire, and

(c)  the measures to restrict the spread of fire from the building to other buildings nearby.

fire safety engineer means a person holding Category C10 accreditation under the Building Professionals Act 2005.

fire safety requirement means a requirement under the Building Code of Australia relating to:

(a)  a fire safety system, as defined in the Building Code of Australia, and components of a fire safety system, or

(b)  the safety of persons in the event of fire, or

(c)  the prevention, detection or suppression of fire.

fire safety schedule means a schedule referred to in clause 168 (1), 168A (2) (b) or 182 (2).

local newspaper means a newspaper circulating throughout the relevant area at intervals of not more than 2 weeks.

nominated integrated development means development of the kind referred to in clause 5 (1) (b).

other advertised development means development of the kind referred to in clause 5 (2).

performance requirement has the same meaning as in the Building Code of Australia.

private service provider means a person or body that has entered into an agreement with the New South Wales Fire Brigades to monitor fire alarm systems.

qualified designer means a person registered as an architect in accordance with the Architects Act 2003.

Note. A building designer may be able to be registered as an architect in accordance with the Architects Act 2003 even though the person may have no formal qualifications in architecture.

regional panel means a joint regional planning panel.

relevant BASIX certificate, in relation to development, means:

(a)  in the case of development the subject of development consent:

(i)  a BASIX certificate that is applicable to the development when development consent is granted or (in the case of development consent modified under section 96 of the Act) modified, or

(ii)  if a replacement BASIX certificate accompanies any subsequent application for a construction certificate, the replacement BASIX certificate applicable to the development when the construction certificate is issued or (in the case of a construction certificate modified under clause 148) modified, or

(b)  in the case of development the subject of a complying development certificate, a BASIX certificate that is applicable to the development when the complying development certificate is granted or (in the case of a complying development certificate modified under section 87 of the Act) modified.

relevant submission period means:

(a)  in relation to submissions concerning a draft development control plan, the submission period specified for the plan in the notice referred to in clause 18 (1), or

(b)  in relation to submissions concerning a draft contributions plan, the submission period specified for the plan in the notice referred to in clause 28, or

(c)  in relation to submissions concerning designated development that has been notified as required by section 79 (1) of the Act, the submission period specified for the development in the notice referred to in clause 78 (1), or

(d)  in relation to submissions concerning State significant advertised development that has been notified as required by section 79A (1) of the Act, the submission period specified for the development in the notice referred to in clause 83 (1), or

(e)  in relation to submissions concerning nominated integrated development that has been notified as required by section 79A (1) of the Act, the submission period specified for the development in the notice referred to in clause 89 (1), or

(f)  in relation to submissions concerning development that has been notified or advertised as required by a development control plan referred to in section 79A (2) of the Act, the submission period specified for the development in the instrument by which the development has been so notified or advertised, or

(g)  (Repealed)

(h)  in relation to submissions concerning development of a kind referred to in two or more of paragraphs (c), (d), (e) and (f), the longer or longest of those periods.

required, when used as an adjective, has the same meaning as in the Building Code of Australia.

residential flat development has the same meaning as in State Environmental Planning Policy No 65—Design Quality of Residential Flat Development.

section 94 condition means a condition under section 94 of the Act requiring the dedication of land or the payment of a monetary contribution, or both.

section 94 contribution means the dedication of land, the payment of a monetary contribution or the provision of a material public benefit, as referred to in section 94 of the Act.

section 94A condition means a condition under section 94A of the Act requiring the payment of a levy.

section 94A levy means the payment of a levy, as referred to in section 94A of the Act.

site compatibility certificate means the following:

(a)  site compatibility certificate (affordable rental housing),

(b)  site compatibility certificate (infrastructure),

(c)  site compatibility certificate (seniors housing).

site compatibility certificate (affordable rental housing) means a certificate issued under clause 37 (5) of State Environmental Planning Policy (Affordable Rental Housing) 2009.

site compatibility certificate (infrastructure) means a certificate issued under clause 19 (5) of State Environmental Planning Policy (Infrastructure) 2007.

site compatibility certificate (seniors housing) means a certificate issued under clause 25 (4) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.

State significant advertised development means development of the kind referred to in clause 5 (1) (a).

temporary building means:

(a)  a temporary structure, or

(b)  a building that is stated to be a temporary building in a development consent or complying development certificate granted or issued in relation to its erection.

the Act means the Environmental Planning and Assessment Act 1979.

threatened species development means development of the kind referred to in clause 5 (1) (c).

(2)  A reference in this Regulation to building work does not include a reference to any physical activity involved in the erection of a temporary structure.

Note. Building work is defined by the Act to mean any physical activity involved in the erection of a building.

(3)  A reference in this Regulation to an existing building does not include a reference to a temporary structure.

3A   Exclusion from definition of “development”

For the purposes of the definition of development in section 4 (1) of the Act, the demolition of a temporary structure is prescribed as not being such development.

4   What is designated development?

(cf clause 53C of EP&A Regulation 1994)

(1)  Development described in Part 1 of Schedule 3 is declared to be designated development for the purposes of the Act unless it is declared not to be designated development by a provision of Part 2 or 3 of that Schedule.

(2)  Part 4 of Schedule 3 defines certain words and expressions used in that Schedule.

(3)  Part 5 of Schedule 3 prescribes how certain distances are to be measured for the purposes of that Schedule.

(4)  Schedule 3, as in force when a development application is made, continues to apply to and in respect of the development application regardless of any subsequent substitution or amendment of that Schedule, and the application is unaffected by any such substitution or amendment.

(5)  References in subclause (4) to Schedule 3 include references to Schedule 3 to the Environmental Planning and Assessment Regulation 1994.

5   What is advertised development?

(cf clause 63 of EP&A Regulation 1994)

(1)  For the purposes of the definition of advertised development in section 4 (1) of the Act, the following types of development (not being designated development) are identified as advertised development:

(a)  State significant development referred to in section 76A (7) (b) or (d) of the Act (not being Class 1 aquaculture development), referred to in this Regulation as State significant advertised development,

(b)  integrated development (not being State significant advertised development, threatened species development or Class 1 aquaculture development) that requires an approval (within the meaning of section 90A of the Act) under:

(i)  a provision of the Heritage Act 1977 specified in section 91 (1) of the Act, or

(ii)  a provision of the Water Management Act 2000 specified in section 91 (1) of the Act, or

(iii)  a provision of the Protection of the Environment Operations Act 1997 specified in section 91 (1) of the Act,

      referred to in this Regulation as nominated integrated development,

(c)  development referred to in section 78A (8) (b) of the Act (not being State significant advertised development), referred to in this Regulation as threatened species development,

(d)  development that, pursuant to State Environmental Planning Policy No 62—Sustainable Aquaculture, is Class 1 aquaculture development, referred to in this Regulation as Class 1 aquaculture development.

(2)  For the purposes of this Regulation, each of the following kinds of development, namely:

(a)  nominated integrated development,

(b)  threatened species development,

(c)  Class 1 aquaculture development,

(d)  any development that is identified as advertised development by an environmental planning instrument or a development control plan,

      is referred to in this Regulation as other advertised development.

(3)  A reference in subclause (1) to State significant development is a reference to development which, before the repeal of section 76A (7) of the Act, was State significant development and which (under transitional provisions of or made under the Act) continues to be subject to the former provisions of the Act relating to State significant development.

6   When is public notice given?

(cf clause 5 of EP&A Regulation 1994)

Public notice in a local newspaper is given for the purposes of this Regulation when the notice is first published in a local newspaper, even if the notice is required to be published more than once or in more than one newspaper.

7   Building Code of Australia

(cf clause 5A of EP&A Regulation 1994)

(1)  For the purposes of the definition of Building Code of Australia in section 4 (1) of the Act:

(a1)  the document referred to in that definition is:

(i)  the document published in October 1996 under the title Building Code of Australia, or

(ii)  if the document referred to in subparagraph (i) (or any replacement document under this subparagraph) is replaced by another document published under a title that includes the words “Building Code of Australia” together with a reference to the year 2004 or a later year, that other document, and

(a)  all amendments to that Code that are from time to time made by the Australian Building Codes Board are prescribed, and

(b)  all variations of that Code that are from time to time approved by the Australian Building Codes Board in relation to New South Wales are prescribed.

(2)  Any such amendment or variation comes into effect on the adoption date specified in that regard for New South Wales in the document by which the amendment or variation is published on behalf of the Australian Building Codes Board.

(2A), (3)  (Repealed)

8   Notes

(cf clause 4 of EP&A Regulation 1994)

The explanatory note, table of contents and notes in this Regulation do not form part of this Regulation.

Part 1A Major projects

8A   Definitions

(1)  In this Part:

environmental assessment requirements for a project (including a concept plan for a project) means environmental assessment requirements prepared by the Director-General under section 75F of the Act.

project means development to which Part 3A of the Act applies.

project application means:

(a)  an application for the Minister’s approval to carry out a project under Part 3A of the Act, or

(b)  an application for the Minister’s approval for a concept plan for a project under Part 3A of the Act, or

(c)  a single application for both an approval to carry out a project under Part 3A of the Act and for a concept plan for a project under that Part.

(2)  In this Part:

(a)  a reference to the end of the public consultation period for a project or concept plan is a reference to the end of the period of 30 days referred to in section 75H (3) of the Act in relation to the project or concept plan, and

(b)  a reference to the end of the proponent’s environmental assessment period for a project or concept plan is a reference to the time at which the proponent has complied with all of the Director-General’s requirements under section 75H of the Act.

(3)  In this Part, a reference to section 75F, 75H or 75I of the Act includes, in the case of a concept plan for a project, a reference to any such section as applied by section 75N of the Act.

8B   Matters for environmental assessment and Ministerial consideration

The Director-General’s report under section 75I of the Act in relation to a project is to include the following matters (to the extent that those matters are not otherwise included in that report in accordance with the requirements of that section):

(a)  an assessment of the environmental impact of the project,

(b)  any aspect of the public interest that the Director-General considers relevant to the project,

(c)  the suitability of the site for the project,

(d)  copies of submissions received by the Director-General in connection with public consultation under section 75H or a summary of the issues raised in those submissions.

Note. Section 75J (2) of the Act requires the Minister to consider the Director-General’s report (and the reports, advice and recommendations contained in it) when deciding whether or not to approve the carrying out of a project.

8C   Time limits for dealing with applications and other matters

The following time limits are prescribed for dealing with applications and other matters under Part 3A of the Act:

(a)  The time within which the Director-General is to notify the proponent of environmental assessment requirements with respect to a project or concept plan is 28 days after the proponent requests the Director-General to prepare those requirements.

(b)  The time within which the Director-General is to accept the environmental assessment with respect to a project or concept plan, or require the proponent to submit a revised environmental assessment, under section 75H of the Act is 21 days after the environmental assessment is received by the Director-General.

(c)  The time within which the Director-General is required to send copies of submissions received or a report of the issues raised in those submissions to the proponent and others under section 75H (5) of the Act (or to notify the proponent that no submissions were received) is 10 days after the end of the public consultation period for the project or concept plan.

8D   Rejection of applications if proponent fails to comply with requirements

(1)  This clause applies to project applications.

(2)  If:

(a)  any such application has not been duly made, and

(b)  the Director-General has notified the proponent of the action required to ensure that the application is duly made, and

(c)  the proponent has failed to take that action within 14 days after being so notified,

      the Minister may decide to reject the application without determining whether to approve or disapprove of the carrying out of the project or to give or refuse to give approval for the concept plan (as the case requires).

(3)  If:

(a)  the proponent has failed to comply with the Director-General’s requirements under section 75H of the Act in connection with an application, and

(b)  the Director-General has notified the proponent of the requirements that have not been complied with, and

(c)  the proponent has failed to comply with those requirements within 21 days after being so notified,

      the Minister may decide to reject the application without determining whether to approve or disapprove of the carrying out of the project or to give or refuse to give approval for the concept plan (as the case requires).

(4)  An application is taken to be rejected and never to have been made when the proponent is given notice of the Minister’s decision to reject the application under this clause.

(5)  The Director-General must refund to the proponent the whole of any fee paid in connection with an application that is rejected under this clause.

8E   Provisions relating to appeals

(1) Date of receipt of notice of determination
For the purposes of determining the commencement of the appeal period under section 75K (2) (a), 75L (3) or 75Q (2) (a) of the Act, notice of the determination concerned is received on the date that the notice is received (or taken to have been received) in accordance with section 153 of the Act.

(2) Proponent appeal relating to approval of project—deemed refusal
For the purposes of section 75K (2) (b) of the Act, the date on which a pending application for approval to carry out a project is taken to have been refused for the purposes only of enabling an appeal within 3 months after the date of the deemed refusal is as follows:

(a)  60 days from the end of the proponent’s environmental assessment period for the project, except as provided by paragraph (b) or (c),

(b)  120 days from the end of that period if the Director-General notifies the proponent, when notifying the environmental assessment requirements for the project, that the project involves a complex environmental assessment and approval process,

(c)  30 days from the end of that period if the Director-General notifies the proponent, when notifying the environmental assessment requirements for the project, that the project does not involve a complex environmental assessment and approval process.

(3) Proponent appeal relating to concept plan or modification of concept plan—deemed refusal
For the purposes of section 75Q (2) (b) of the Act, the date on which a pending application for approval of a concept plan or to modify a concept plan is taken to have been refused for the purposes only of enabling an appeal within 3 months after the date of the deemed refusal is as follows:

(a)  60 days from the end of the proponent’s environmental assessment period for the concept plan, except as provided by paragraph (b) or (c),

(b)  120 days from the end of that period if the Director-General notifies the proponent, when notifying the environmental assessment requirements for the concept plan, that the concept plan involves a complex environmental assessment and approval process,

(c)  30 days from the end of that period if the Director-General notifies the proponent, when notifying the environmental assessment requirements for the concept plan, that the concept plan does not involve a complex environmental assessment and approval process.

(4) Proponent appeal relating to modifications of approval
The time within which an appeal may be made under section 75W (5) of the Act is 3 months after:

(a)  the date on which the proponent received (or is taken to have received) notice of the determination of the request for a modification of the approval for a project in accordance with section 153 of the Act, or

(b)  the expiration of the period of 40 days after the request for the modification was made during which the Minister has failed to determine the request.

8F   Owner’s consent or notification

(1)  The consent of the owner of land on which a project is to be carried out is required for a project application or modification application unless:

(a)  the application is made by a public authority, or

(b)  the application relates to a critical infrastructure project, or

(c)  the application relates to a mining or petroleum production project, or

(d)  the application relates to a linear infrastructure project, or

(e)  the application relates to a project on land with multiple owners designated by the Director-General for the purposes of this clause.

(1A)  The consent of the New South Wales Aboriginal Land Council is required for a project application or modification application relating to land owned by a Local Aboriginal Land Council if the consent of the Local Aboriginal Land Council is required as owner of the land to the application.

(2)  Any such consent may be obtained at any time before the determination of the application.

(3)  If the consent of the owner of the land is not required for a project application under this clause, then the proponent is required to give notice of the application:

(a)  in the case of a linear infrastructure project or a project designated under subclause (1) (e)—to the public by advertisement published in a newspaper circulating in the area of the project before the start of the public consultation period for the project, or

(b)  in the case of a project that comprises mining or petroleum production (other than a project that also comprises a linear infrastructure project)—to the public by advertisement published in a newspaper circulating in the area of the project before the end of the period of 14 days after the application is made, or

(c)  in the case of a critical infrastructure project (other than a project that also comprises a linear infrastructure project or mining or petroleum production project)—to the owner of the land before the end of period of 14 days after the application is made, or

(d)  in any other case—to the owner of the land at any time before the application is made.

(4)  In this section:

linear infrastructure project means development for the purposes of linear transport or public utility infrastructure.

mining or petroleum production includes any activity that is related to mining or petroleum production, but does not include any activity to the extent that it is carried out on land that is a state conservation area reserved under the National Parks and Wildlife Act 1974.

modification application means a request for modification of approval for a project under section 75W of the Act.

8G   Public information about documents relating to projects

(1)  This clause applies to the duty of the Director-General under section 75X (2) of the Act to make specified documents relating to a project publicly available.

(2)  The documents are to be made available on the Department’s website and in such other locations as the Director-General determines.

(3)  The documents are to be posted on the Department’s website and in those other locations within 14 days of:

(a)  in the case of a document that is an application, request or submission—the date on which the application, request or submission is made, or

(b)  in the case of a document that is a determination of environmental assessment requirements, a report or an approval—the date on which the determination, report or approval is made or given.

(4)  In addition to the documents referred to in section 75X (2) of the Act, the Director-General is to include on the Department’s website and in such other locations as the Director-General determines the following documents:

(a)  the declaration of development as a project to which Part 3A of the Act applies or its declaration as a critical infrastructure project,

(b)  guidelines published under section 75F or 75H of the Act,

(c)  any environmental assessment in relation to a project that has been placed on public exhibition under section 75H of the Act,

(d)  responses to submissions, preferred project reports and other material in relation to a project provided to the Director-General by the proponent after the end of the public consultation period (whether under section 75H (6) of the Act or otherwise),

(e)  reports of panels under section 75G of the Act (as in force before its repeal) or of reviews by the Planning Assessment Commission,

(f)  any reasons given to the proponent by the Minister as referred to in section 75X (3) of the Act.

(5)  A document may be made available on the Department’s website by providing an electronic link to the document on another website.

8H   Fees

The fees for applications and exercise of functions under Part 3A of the Act are as set out in Part 15 of this Regulation.

8I   Enforcement: critical infrastructure

In accordance with section 75R (5) of the Act, Division 2A of Part 6 of the Act applies to a critical infrastructure project only to the extent that it authorises the Minister or the Director-General to give an order or exercise any other function under that Division.

8J   Transitional provisions

(1AA)  The Director-General may accept, as an application for approval of a project under Part 3A of the Act, any development application made under Part 4 of the Act with respect to any development before it becomes a project to which Part 3A of the Act applies. The Director-General may, for that purpose, require any matter to be provided by the applicant that he or she could require to be included in the application under section 75E of the Act.

(1)  The Director-General may adopt (with or without modification), as environmental assessment requirements for a project or concept plan, environmental assessment requirements issued by the Director-General under Part 4 or Part 5 of the Act with respect to any development or activity before it becomes a project to which Part 3A of the Act applies.

(2)  The Director-General may accept (with or without modification), as an environmental assessment for a project or part of a project or concept plan:

(a)  an environmental impact statement obtained in accordance with the requirements of the Director-General under Part 4 or Part 5 of the Act with respect to any development or activity before it becomes a project or part of a project to which Part 3A of the Act applies, or

(b)  a statement of environmental effects (as referred to in clause 2 (1) (c) of Schedule 1) prepared in connection with the development concerned before it becomes a project or part of a project to which Part 3A of the Act applies, or

(c)  a written assessment arising out of the consideration, under section 111 of the Act, of the environmental impact of an activity and prepared before the activity becomes a project or part of a project to which Part 3A of the Act applies.

(2A)  If the Director-General accepts (with or without modification) an environmental impact statement, a statement of environmental effects or a written assessment as an environmental assessment for a project or part of a project or a concept plan:

(a)  the Director-General is taken to have prepared environmental assessment requirements in respect of the project or part of a project or concept plan, and

(b)  the environmental assessment as so accepted is taken to comply with those requirements.

(3)  The Director-General may accept, as a period of public availability of the environmental assessment for a project or part of a project or concept plan (under section 75H (3) of the Act), a period of public exhibition of an environmental impact statement or a statement of environmental effects referred to in subclause (2) before the relevant development or activity becomes a project or part of a project to which Part 3A of the Act applies. For that purpose, and to avoid doubt, if the period of public exhibition is less than 30 days, it is accepted only to the extent of the actual period of public exhibition.

(3A)  If any such period of public exhibition of an environmental impact statement or a statement of environmental effects is accepted by the Director-General, the proponent must provide the Director-General with any written submissions made during the public exhibition period in relation to the relevant development or activity.

(4)  Despite its repeal, section 88A of the Act continues to apply (and Part 3A of the Act does not apply) to development that is the subject of a development application that was directed to be referred to the Minister under that section before its repeal.

(4A)  If a development application is made after the commencement of Part 3A of the Act in respect of any development that:

(a)  was, immediately before the repeal of section 89 of the Act, the subject of a direction under that section, and

(b)  is not a project to which Part 3A of the Act applies,

      the Minister may direct that the application is to be determined (unless the development application is withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made.

(5)  If a development application is made after the commencement of Part 3A of the Act in respect of any development that, immediately before the commencement of Part 3A, was declared to be State significant development by notice in force under section 76A (7) of the Act, the Minister may direct that the application is to be determined (unless the development application is withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made.

(6)  Clause 89 of Part 17 to Schedule 6 to the Act extends to development applications pending on the commencement of Part 3A of the Act for development that was State significant development on the commencement of the State Environmental Planning Policy (State Significant Development) 2005.

(7)  If:

(a)  a development application was made before the commencement of Part 3A of the Act on the basis that the development was State significant development, and

(b)  the Minister is required to form an opinion that the development is State significant development in order to determine the application on that basis (but the Minister had not, before that commencement, formed an opinion on the matter),

      the Minister may, after that commencement, form an opinion that the development was, at the time the application was made, State significant development. In that case, the application is to be determined (unless withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made.

(8)  For the purposes only of modification, the following development consents are taken to be approvals under Part 3A of the Act and section 75W of the Act applies to any modification of such a consent:

(a)  a development consent granted by the Minister under section 100A or 101 of the Act,

(b)  a development consent granted by the Minister under State Environmental Planning Policy No 34—Major Employment-Generating Industrial Development,

(c)  a development consent granted by the Minister under Part 4 of the Act (relating to State significant development) before 1 August 2005 or under clause 89 of Schedule 6 to the Act,

(d)  a development consent granted by the Land and Environment Court, if the original consent authority was the Minister and the consent was of a kind referred to in paragraph (c).

The development consent, if so modified, does not become an approval under Part 3A of the Act.

(8A)  Subclause (8), as in force before its substitution by the Environmental Planning and Assessment Amendment (Miscellaneous) Regulation 2010, applies to any development consent for which approval for the treatment of the consent as an approval for the purposes of section 75W of the Act:

(a)  was given before that substitution, or

(b)  is given after that substitution, but where the application for the approval was made before that substitution.

(8B)  The Director-General may waive any fee payable in respect of an application under section 75W of the Act if the application relates to a development consent that is taken to be an approval under Part 3A of the Act and a fee has been paid in respect of the application under section 96 of the Act.

(9)  For the purposes of this clause, and to avoid doubt, a development application is made by a person when the person first applies to the consent authority for consent to carry out the particular development, whether or not the application at that time had been consented to by the owner of the land to which the development application relates.

8K   Transitional provision—existing mining leases

(1)  Despite its repeal by Schedule 7.11 to the Amending Act, section 74 of the Mining Act 1992 (Mining unaffected by Environmental Planning and Assessment Act 1979) continues to have effect in respect of an existing mining lease until:

(a)  the end of the relevant transition period, or

(b)  such time as an approval is given to carry out mining operations in the mining area,

      whichever is the sooner.

(2)  However, if any such approval is limited to the carrying out of mining operations in a part of the mining area only, section 74 of the Mining Act 1992 continues to have effect in respect of so much of the existing mining lease as relates to the other parts of the mining area, but only until the end of the relevant transition period or until such time as an approval is given to carry out mining operations in those other parts (whichever is the sooner).

(3)  In this clause:

Amending Act means the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005.

approval means an approval under Part 3A of the Act, but does not include the approval of a concept plan under that Part.

existing mining lease means a mining lease in force immediately before the relevant commencement.

mining area, mining lease and mining operations have the same meanings as in the Mining Act 1992.

relevant commencement means the date on which Schedule 7.11 to the Amending Act commences.

relevant transition period means:

(a)  in the case of an existing mining lease in respect of which mining operations are carried out underground—the period ending on the fifth anniversary of the relevant commencement, or

(b)  in the case of any other existing mining lease—the period ending on the second anniversary of the relevant commencement.

8L   Transitional provision—objections under Mining Act in relation to Part 3A projects

(1)  The reference in clause 28 (b) of Schedule 1 to the Mining Act 1992 to any person who is entitled to make submissions in relation to the granting of development consent to use land for the purpose of obtaining minerals or for one or more mining purposes (the relevant development) is taken to include:

(a)  if the relevant development is development to which Part 3A of the Act applies—a reference to any person who is entitled, under section 75H of the Act, to make a written submission in relation to the approval of that project, or

(b)  if the Director-General has, under clause 8J (3) of this Regulation, accepted a period of public exhibition of an environmental impact assessment with respect to the relevant development before it becomes a project to which Part 3A of the Act applies—a reference to any person who was entitled to make a written submission during the public exhibition period in relation to the relevant development.

(2)  Pursuant to Part 1 of Schedule 6 to the Act, this clause is taken to have commenced on the commencement of Part 3A of the Act.

8M   Transitional provisions—development consents under Part 4 of the Act and approvals under Part 5 of the Act

(1)  If development is declared to be a project under Part 3A of the Act, any development consent under Part 4 of the Act or approval under Part 5 of the Act that applies to the project or land on which the project is to be carried out continues in force despite that declaration.

(2)  If a declaration of a project under Part 3A of the Act is revoked before or after approval has been given under that Part to carry out the project, the Minister may make any of the following determinations:

(a)  that the whole or part of the effect of the approval is preserved and is taken to be a development consent granted under Part 4 of the Act by an appropriate consent authority nominated by the Minister,

(b)  that the whole or a specified part of an action under Part 4 or Part 5 of the Act in respect of the whole or part of a project is revived and has effect,

(c)  that an environmental assessment under Part 3A of the Act is to be recognised for the purpose of complying with a specified environmental assessment requirement under Part 4 or Part 5 of the Act.

(3)  A determination of the Minister under subclause (2) has effect on the revocation of the declaration of the project.

(4)  Subclause (2) does not apply if a project ceases to be a project to which Part 3A of the Act applies because of section 75P (1) (b) of the Act.

8N   Projects or concept plans for which approval may not be given concerning environmentally sensitive land or sensitive coastal locations

(1)  For the purposes of sections 75J (3) and 75O (3) of the Act, approval for a project application may not be given under Part 3A of the Act for any project, or part of a project, that:

(a)  is located within an environmentally sensitive area of State significance or a sensitive coastal location, and

(b)  is prohibited by an environmental planning instrument that would not (because of section 75R of the Act) apply to the project if approved.

(2)  To avoid doubt, a project is not prohibited for the purposes of subclause (1) (b) if:

(a)  it is not permitted because of the application of a development standard under the environmental planning instrument, or

(b)  it is prohibited under the environmental planning instrument but is permitted to be carried out because of the application of another environmental planning instrument to the environmental planning instrument.

(3)  In this clause:

environmentally sensitive area of State significance has the same meaning as it has in State Environmental Planning Policy (Major Development) 2005.

sensitive coastal location has the same meaning as it has in State Environmental Planning Policy (Major Development) 2005.

8O   Other projects prohibited by environmental planning instruments for which project approval may not be given

(1)  For the purposes of section 75J (3) of the Act, approval for the carrying out of a project may not be given under Part 3A of the Act for any project, or part of a project, that:

(a)  is not the subject of an authorisation or requirement under section 75M of the Act to apply for approval of a concept plan, and

(b)  is prohibited by an environmental planning instrument that would not (because of section 75R of the Act) apply to the project if approved.

(2)  To avoid doubt, a project is not prohibited for the purposes of subclause (1) (b) if:

(a)  it is not permitted because of the application of a development standard under the environmental planning instrument, or

(b)  it is prohibited under the environmental planning instrument but is permitted to be carried out because of the application of another environmental planning instrument to the environmental planning instrument.

(3)  This clause does not apply to a project for which the giving of approval is prohibited by clause 8N.

8OA   Transitional provision—projects or concept plans otherwise prohibited for which approval may be given

Clauses 8N and 8O do not apply to a project application if, before the commencement of those clauses, the Director-General had notified the proponent of environmental assessment requirements under section 75F of the Act relating to the project, or part of the project, concerned.

8P   Surrender of approvals given under Part 3A of the Act or existing use rights

(1)  A surrender of an approval under Part 3A of the Act or a right conferred by Division 10 of Part 4 of the Act (referred to in section 75YA of the Act) is to be made by giving to the Director-General a notice in writing of the surrender of the approval or right.

(2)  The notice must contain the following information:

(a)  the name and address of the person by whom the notice is given,

(b)  the address, and formal particulars of title, of the land to which the approval or right relates,

(c)  a description of the approval or right to be surrendered,

(d)  if the person giving notice is not the owner of the land, a statement by the owner of the land to the effect that the owner consents to the surrender of the approval or right.

(3)  A duly signed and delivered notice of surrender of an approval or right conferred by Division 10 of Part 4 of the Act takes effect on the date determined by the Director-General and operates, according to its terms, to surrender the approval or right to which it relates.

Part 2 Environmental planning instruments

9   Joint regional planning panel—eligible relevant planning authority

For the purposes of Part 3 of the Act, a joint regional planning panel is prescribed under section 54 of the Act as a body that may be directed by the Minister to be the relevant planning authority for a proposed LEP.

10   Public authorities must concur in proposed reservation of land by LEP

A planning proposal for a proposed LEP may not contain a proposed reservation of land for a purpose referred to in section 26 (1) (c) of the Act unless the public authority that is to be designated for the purposes of section 27 of the Act as the authority required to acquire the land has notified the relevant planning authority of its concurrence to the reservation of the land for that purpose.

11   Recovery of costs of studies etc by relevant planning authority

The relevant planning authority may enter into an agreement with a person who requests the authority to prepare a planning proposal under Part 3 of the Act for the payment of the costs and expenses incurred by the authority in undertaking studies and other matters required in relation to the planning proposal.

12   Continuation of former provisions for making LEPs

(1)  In this clause:

amending LEP means a LEP that (apart from provisions for citation, commencement, definitions, purpose, land to which it applies and similar ancillary provisions) contains only direct amendments to or repeals of other environmental planning instruments. Any other LEP is a principal LEP even if it also contains direct amendments to or repeals of other environmental planning instruments.

former LEP plan-making provisions means the provisions of:

(a)  Part 3 of the Act and the regulations under the Act, and

(b)  Part 5 of the Heritage Act 1977, and

(c)  sections 28 and 29 of the Local Government Act 1993,

      relating to the making of LEPs, as in force immediately before 1 July 2009 (the date of commencement of Schedule 1 to the Environmental Planning and Assessment Amendment Act 2008).

pending LEP means:

(a)  a draft principal LEP, if the Director-General was informed of the decision to prepare the plan under section 54 of the Act before 1 July 2009, or

(b)  a draft amending LEP, if the Director-General was informed of the decision to prepare the plan under section 54 of the Act before 1 July 2009, but only until 1 July 2010 (or if the Director-General had not issued a certificate under section 65 for public exhibition of the draft before 1 July 2009, until 1 January 2011).

(2)  The former LEP plan-making provisions continue to apply to the making of a pending LEP unless the Director-General notifies the council that they cease to apply. In that case, the Minister may, under clause 122 (2) of Schedule 6 to the Act, dispense with any conditions precedent to the making of the LEP (subject to compliance with such other requirements, if any, as are imposed by the Minister).

(3)  Despite subclause (2), section 25 of the Act, as in force immediately before 1 July 2009, does not continue to apply to the making of a pending LEP that is an amending LEP.

(4)  A pending LEP made under the former LEP plan-making provisions is taken to be a LEP made by the Minister under Division 4 of Part 3 of the Act, as amended by Schedule 1 to the Environmental Planning and Assessment Amendment Act 2008.

(5)  In any Act or instrument, a reference in relation to a pending LEP:

(a)  to a planning proposal includes a reference to a draft local environmental plan, and

(b)  to community consultation includes a reference to the public exhibition of any such draft plan.

12A   Operation of 2010 amending Regulation

(1)  This clause applies to any pending LEP to which the former LEP plan-making provisions continue to apply because of clause 12, as amended by the Environmental Planning and Assessment Amendment (Transitional Arrangements) Regulation 2010, but to which those provisions did not apply before the commencement of that Regulation.

(2)  For the purposes of the application of the former LEP plan-making provisions to a pending LEP to which this clause applies, any thing purporting to have been done or omitted before the commencement of that Regulation in accordance with the former LEP plan-making provisions in respect of the pending LEP is taken to have been done or omitted under and in accordance with the former LEP plan-making provisions.

(3)  The amendments to clause 12 made by the Environmental Planning and Assessment Amendment (Transitional Arrangements) Regulation 2010 apply, but this clause does not apply, to the proposed local environmental plan relating to South Tralee submitted to the Director-General on or about 6 November 2009 by the Queanbeyan City Council.

13   Saving of previous threatened species consultation under section 34A

Any consultation undertaken in relation to a proposed environmental planning instrument before 1 July 2009 under section 34A of the Act, as in force immediately before that date, is (if the instrument is not made before that date) taken to be consultation undertaken under that section as in force after that date.

14   Saving of actions taken for preparation of SEPP

Anything done in relation to a proposed SEPP before 1 July 2009 under Division 2 of Part 3 of the Act, as in force immediately before that date, is (if the SEPP is not made before that date) taken to have been done under that Division as in force after that date.

15   REPs deemed to be SEPPs—interpretation

(1)  A provision of a regional environmental plan that becomes a SEPP on 1 July 2009 does not prevail over any other environmental planning instrument because the plan becomes a SEPP on that date if it would not have prevailed over that instrument before that date.

(2)  A provision of a regional environmental plan that becomes a SEPP on 1 July 2009 does not have the same effect as a provision of a SEPP for the purposes of Part 3A of the Act if it would not have had that effect before 1 July 2009.

15A   Transitional provision relating to affordable housing

Until the commencement of Part 5B of the Act (to be inserted by Schedule 3 to the Environmental Planning and Assessment Amendment Act 2008), section 94F (3) (b) of the Act is to be construed as if the reference to a condition authorised to be imposed by a LEP (which before the commencement of Schedule 1 to that Act included a reference to a condition authorised to be imposed by a regional environmental plan) were a reference to a condition authorised to be imposed by a SEPP or a LEP.

Part 3 Development control plans

Division 1 Preparation of development control plans by councils

16   In what form must a development control plan be prepared?

(cf clause 15 of EP&A Regulation 1994)

(1)  A development control plan must be in the form of a written statement, and may include supporting maps, plans, diagrams, illustrations and other materials.

(2)  A development control plan must describe the land to which it applies, and must identify any local environmental plan or deemed environmental planning instrument applying to that land.

17, 17A   (Repealed)

Division 2 Public participation

18   Draft development control plan must be publicly exhibited

(cf clause 17 of EP&A Regulation 1994)

(1)  Following the preparation of a draft development control plan, the council:

(a)  must give public notice in a local newspaper of the places, dates and times for inspection of the draft plan,

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

(i)  a copy of the draft plan, and

(ii)  a copy of any relevant local environmental plan or deemed environmental planning instrument, and

(c)  must specify in the notice the period during which submissions about the draft plan may be made to the council (which must include the period during which the plan is being publicly exhibited).

(2)  A draft development control plan must be publicly exhibited for at least 28 days.

19   Copies of draft development control plans to be publicly available

(cf clause 18 of EP&A Regulation 1994)

Copies of the draft development control plan, and of any relevant local environmental plan or deemed environmental planning instrument, are to be made available to interested persons, either free of charge or on payment of reasonable copying charges.

20   Who may make submissions about a draft development control plan?

(cf clause 19 of EP&A Regulation 1994)

Any person may make written submissions to the council about the draft development control plan during the relevant submission period.

Division 3 Approval of development control plans

21   Approval of development control plans

(cf clause 20 of EP&A Regulation 1994)

(1)  After considering any submissions about the draft development control plan that have been duly made, the council:

(a)  may approve the plan in the form in which it was publicly exhibited, or

(b)  may approve the plan with such alterations as the council thinks fit, or

(c)  may decide not to proceed with the plan.

(2)  The council must give public notice of its decision in a local newspaper within 28 days after the decision is made.

(3)  Notice of a decision not to proceed with a development control plan must include the council’s reasons for the decision.

(4)  A development control plan comes into effect on the date that public notice of its approval is given in a local newspaper, or on a later date specified in the notice.

21A   Approval of development control plans relating to residential flat development

(1)  The council must not approve a draft development control plan (including an amending plan) containing provisions that apply to residential flat development unless the council:

(a)  has referred the provisions of the draft development control plan that relate to design quality to the design review panel (if any) constituted for the council’s area (or a region that includes the council’s area) under State Environmental Planning Policy No 65—Design Quality of Residential Flat Development, and

(b)  has taken into consideration any comments made by the design review panel concerning those provisions.

(2)  This clause extends to a plan the preparation of which commenced before the constitution of the relevant design review panel.

Division 4 Amendment and repeal of development control plans

22   How may a development control plan be amended or repealed?

(cf clause 21 of EP&A Regulation 1994)

(1)  A council may amend a development control plan by a subsequent development control plan.

(2)  A council may repeal a development control plan:

(a)  by a subsequent development control plan, or

(b)  by public notice in a local newspaper of its decision to repeal the plan.

23   Procedure for repealing a development control plan by public notice

(cf clause 22 of EP&A Regulation 1994)

(1)  Before repealing a development control plan by public notice in a local newspaper, the council must give public notice in a local newspaper:

(a)  of its intention to repeal the development control plan, and

(b)  of its reasons for doing so.

(2)  Publication of the notice of intention must take place at least 14 days before publication of the notice of repeal.

(3)  The repeal of a development control plan by public notice in a local newspaper takes effect on the date of publication of the notice.

Division 5 Development control plans made by the Director-General

24   Application of Part to development control plans made by the Director-General

(cf clause 23 of EP&A Regulation 1994)

This Part applies to a development control plan prepared by the Director-General, as the relevant planning authority, under section 74C of the Act, subject to the following modifications:

(a)  a reference to a council is taken to be a reference to the Director-General,

(b)  a reference to a local environmental plan or deemed environmental planning instrument is taken to be a reference to a State environmental planning policy.

Division 6 Miscellaneous

25   Additional information requested by relevant planning authority

(1)  If an environmental planning instrument requires or permits a development control plan to be prepared and submitted to the relevant planning authority, the planning authority may request the owners (as referred to in section 74D of the Act) who are submitting the plan to provide the planning authority with such additional information as the planning authority considers necessary for the purposes of making the plan.

(2)  Any such request is to be in writing.

(3)  The information that the relevant planning authority may request is limited to information relating to any relevant matter referred to in an environmental planning instrument.

(4)  In accordance with section 74D (6) of the Act, the 60-day period referred to in section 74D (5) of the Act may be extended by the number of days from the day on which the request for the information was made until the day on which the information is provided or on which the owners refuse to supply the information (whichever is the sooner).

(5)  If the owners refuse to supply the requested information, the development control plan is taken not to have been submitted to the relevant planning authority.

25AA   Assessment and preparation fees

(1)  If a draft development control plan under section 74D of the Act is prepared (and submitted to the relevant planning authority) by the owners of the land to which it applies, the owners must pay the relevant planning authority an assessment fee as determined by the planning authority.

(2)  If any such draft development control plan is prepared by the relevant planning authority at the request of the owners (or the percentage of the owners as referred in section 74D (3) of the Act), those owners must pay the planning authority a preparation fee as determined by the planning authority.

(3)  Any such assessment or preparation fee must not exceed the reasonable cost, to the relevant planning authority, of assessing or preparing the draft development control plan, carrying out any associated studies and publicly exhibiting the draft plan.

(4)  If there is more than one owner of the land to which the draft development control plan applies, the fee concerned is to be apportioned between them as the relevant planning authority determines.

(5)  If the Minister, in accordance with section 74D (5) (b) of the Act, acts in the place of a council to make the development control plan concerned, the council must, if directed by the Minister to do so, forward to the Minister any assessment or preparation fee that has been paid to the council in relation to that plan.

(6)  Any assessment or preparation fees payable under clause 272, 273, 273A, 274A or 274B (as in force before their repeal by the Environmental Planning and Assessment Amendment (Planning Instruments and Development Consents) Regulation 2005) are taken to be fees (as determined by the relevant planning authority concerned) payable under this clause. If, under any such repealed clause, a lessee was liable to pay a fee, a reference in this clause to the owner of the land extends to any such lessee.

25AB   Councils to provide copies of development control plans to Director-General

A council must, within 28 days of making a development control plan, provide the Director-General with a copy of the plan.

25AC   Purchase of copies of development control plans

Copies of a development control plan (including any document referred to in a development control plan such as a supporting map, plan, diagram, illustration or other material) are to be made available for purchase from the principal office of the relevant planning authority that prepared the plan.

Note. Under section 74E (4) of the Act, a development control plan must be available for inspection (without charge) at the principal office of the relevant planning authority that prepared the plan.

The above clause does not require the relevant planning authority to supply certified copies of any document. Certified copies are supplied under section 150 of the Act on payment of a prescribed fee. The fee for a certified copy is prescribed by clause 262.

25AD   Further transitional provisions: 2005 Amending Act

(1)  In this clause:

deemed DCP means a master plan, in force under a provision of an environmental planning instrument immediately before the relevant commencement, that is taken to be a development control plan under section 74D of the Act because of clause 95 of Schedule 6 to the Act, and includes a master plan that is taken to be a development control plan as provided by subclause (4).

relevant commencement means the date on which Schedule 2 to the 2005 Amending Act commences.

2005 Amending Act means the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005.

(2) Effect of section 74C on deemed DCPs
Section 74C (2) and (5) of the Act (as inserted by the 2005 Amending Act) does not render invalid any deemed DCP until such time as the principal local environmental planning instrument applying to the land concerned adopts the provisions of a standard instrument (as referred to in section 33A of the Act).

(3) Amendment of deemed DCPs
A deemed DCP may be amended or revoked only in accordance with the procedures provided in relation to the making of the master plan by the environmental planning instrument under which it was made. Accordingly, section 74C (4) of the Act does not apply in relation to a deemed DCP.

(4) Pending master plans
Any master plan lodged under a provision of an environmental planning instrument but not made or adopted as at the relevant commencement may, after that commencement, proceed to be made or adopted as if the amendments made to the Act and this Regulation by Schedules 2 and 7.3 to the 2005 Amending Act had not been made. Once it is made or adopted, the master plan is taken to be a development control plan under section 74D of the Act.

Part 4 Development contributions

Division 1 Preliminary

25A   Planning authorities

Pursuant to paragraph (e) of the definition of planning authority in section 93C of the Act, all public authorities are declared to be planning authorities for the purposes of Division 6 of Part 4 of the Act.

Division 1A Planning agreements

25B   Form and subject-matter of planning agreements

(1)  A planning agreement must:

(a)  be in writing, and

(b)  be signed by the parties to the agreement.

Note. Section 93F (10) of the Act requires a planning agreement to conform with the Act, environmental planning instruments and development consents applying to the relevant land.

(2)  The Director-General may from time to time issue practice notes to assist parties in the preparation of planning agreements.

Note. Under section 93K of the Act the Minister may give planning authorities directions on requirements with respect to planning agreements.

25C   Making, amendment and revocation of agreements

(1)  A planning agreement is not entered into until it is signed by all the parties to the agreement.

Note. Section 93G of the Act provides that the agreement cannot be entered into until public notice of the proposed agreement has been given.

(2)  A planning agreement may specify that it does not take effect until:

(a)  if the agreement relates to a proposed change to an environmental planning instrument—the date the change is made, or

(b)  if the agreement relates to a development application or proposed development application—the date consent to the application is granted.

(3)  A planning agreement may be amended or revoked by further agreement in writing signed by the parties to the agreement (including by means of a subsequent planning agreement).

25D   Public notice of planning agreements

(1)  If a planning authority proposes to enter into a planning agreement, or an agreement to amend or revoke a planning agreement, in connection with a development application or a project application, the planning authority is to ensure that 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.

(1A)  If a planning authority proposes to enter into a planning agreement, or an agreement to amend or revoke a planning agreement, in connection with a proposed change to a local environmental plan, the planning authority is to ensure that 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 public notice of the relevant planning proposal that is required 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 public notice of the relevant planning proposal that is required under Part 3 of the Act and in the manner determined by the planning authorities that are parties to the agreement.

(2)  (Repealed)

(2A)  In the case of a planning agreement of a kind other than an agreement referred to in subclause (1), (1A) or (2) of which public notice is required to be given under section 93G of the Act, 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.

(3)  The public notice of a proposed agreement, amendment or revocation must specify the arrangements relating to inspection by the public of copies of the proposed agreement, amendment or revocation.

(4)  In this clause:

project application has the same meaning as it has in Part 1A.

Note. Section 93G of the Act requires a copy of the proposed agreement, amendment or revocation to be made available for inspection by the public for a period of not less than 28 days.

25E   Explanatory note

(1)  A planning authority proposing to enter into a planning agreement, or an agreement that revokes or amends a planning agreement, must prepare a written statement (referred to in this Division as an explanatory note):

(a)  that summarises the objectives, nature and effect of the proposed agreement, amendment or revocation, and

(b)  that contains an assessment of the merits of the proposed agreement, amendment or revocation, including the impact (positive or negative) on the public or any relevant section of the public.

(2)  Without limiting subclause (1), an explanatory note must:

(a)  identify how the agreement, amendment or revocation promotes the public interest and one or more of the objects of the Act, and

(b)  if the planning authority is a development corporation, identify how the agreement, amendment or revocation promotes one or more of its responsibilities under the Growth Centres (Development Corporations) Act 1974, and

(c)  if the planning authority is a public authority constituted by or under an Act, identify how the planning agreement, amendment or revocation promotes one or more of the objects (if any) of the Act by or under which it is constituted, and

(d)  if the planning authority is a council, identify how the agreement, amendment or revocation promotes one or more of the elements of the council’s charter under section 8 of the Local Government Act 1993, and

(e)  identify a planning purpose or purposes served by the agreement, amendment or revocation, and contain an assessment of whether the agreement, amendment or revocation provides for a reasonable means of achieving that purpose, and

(f)  identify whether the agreement, amendment or revocation conforms with the planning authority’s capital works program (if any).

(3)  The explanatory note is to be prepared jointly with the other parties proposing to enter into the planning agreement.

(4)  However, if 2 or more planning authorities propose to enter into a planning agreement, an explanatory note may include separate assessments prepared by the planning authorities in relation to matters affecting only one of the planning authorities, or affecting those planning authorities in a different manner.

(5)  A copy of the explanatory note must be exhibited with the copy of the proposed agreement, amendment or revocation when it is made available for inspection by the public in accordance with the Act.

(6)  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 section 93G (4) of the Act.

(7)  A planning agreement may provide that the explanatory note is not to be used to assist in construing the agreement.

25F   Councils to facilitate public inspection of relevant planning agreements

(1)  A council must keep a planning agreement register.

(2)  The council must record in the register a short description of any planning agreement (including any amendment) that applies to the area of the council, including the date the agreement was entered into, the names of the parties and the land to which it applies.

(3)  A council must make the following available for public inspection (free of charge) during the ordinary office hours of the council:

(a)  the planning agreement register kept by the council,

(b)  copies of all planning agreements (including amendments) that apply to the area of the council,

(c)  copies of the explanatory notes relating to those agreements or amendments.

(4)  In this clause, planning agreement includes a planning agreement to which the council is not a party but which has been provided to the council under the Act.

25G   Director-General to facilitate public inspection of relevant planning agreements

(1)  The Director-General must keep a planning agreement register.

(2)  The Director-General must record in the register a short description of any planning agreement (including any amendment) entered into by the Minister, including the date the agreement was entered into, the names of the parties and the land to which it applies.

(3)  The Director-General must make the following available for public inspection (free of charge) during the ordinary office hours of the Department:

(a)  the planning agreement register kept by the Director-General,

(b)  copies of all planning agreements (including amendments) to which the Minister is a party,

(c)  copies of the explanatory notes relating to those agreements or amendments.

25H   Other planning authorities to facilitate public inspection of relevant planning agreements

A planning authority (not being a council or the Minister) must make the following available for public inspection (free of charge) during the ordinary office hours of the planning authority:

(a)  copies of all planning agreements (including amendments) to which it is a party,

(b)  copies of the explanatory notes relating to those agreements or amendments.

Division 1B Development consent contributions

25I   Indexation of monetary section 94 contribution—recoupment of costs

For the purposes of section 94 (3) of the Act, the cost of providing public amenities or public services is to be indexed quarterly or annually (as specified in the relevant contributions plan) in accordance with movements in the Consumer Price Index (All Groups Index) for Sydney issued by the Australian Statistician.

25J   Section 94A levy—determination of proposed cost of development

(1)  The proposed cost of carrying out development is to be determined by the consent authority, for the purpose of a section 94A levy, by adding up all the costs and expenses that have been or are to be incurred by the applicant in carrying out the development, including the following:

(a)  if the development involves the erection of a building, or the carrying out of engineering or construction work—the costs of or incidental to erecting the building, or carrying out the work, including the costs (if any) of and incidental to demolition, excavation and site preparation, decontamination or remediation,

(b)  if the development involves a change of use of land—the costs of or incidental to doing anything necessary to enable the use of the land to be changed,

(c)  if the development involves the subdivision of land—the costs of or incidental to preparing, executing and registering the plan of subdivision and any related covenants, easements or other rights.

(2)  For the purpose of determining the proposed cost of carrying out development, a consent authority may have regard to an estimate of the proposed cost of carrying out the development prepared by a person, or a person of a class, approved by the consent authority to provide such estimates.

(3)  The following costs and expenses are not to be included in any estimate or determination of the proposed cost of carrying out development:

(a)  the cost of the land on which the development is to be carried out,

(b)  the costs of any repairs to any building or works on the land that are to be retained in connection with the development,

(c)  the costs associated with marketing or financing the development (including interest on any loans),

(d)  the costs associated with legal work carried out or to be carried out in connection with the development,

(e)  project management costs associated with the development,

(f)  the cost of building insurance in respect of the development,

(g)  the costs of fittings and furnishings, including any refitting or refurbishing, associated with the development (except where the development involves an enlargement, expansion or intensification of a current use of land),

(h)  the costs of commercial stock inventory,

(i)  any taxes, levies or charges (other than GST) paid or payable in connection with the development by or under any law,

(j)  the costs of enabling access by disabled persons in respect of the development,

(k)  the costs of energy and water efficiency measures associated with the development,

(l)  the cost of any development that is provided as affordable housing,

(m)  the costs of any development that is the adaptive reuse of a heritage item.

(4)  The proposed cost of carrying out development may be adjusted before payment, in accordance with a contributions plan, to reflect quarterly or annual variations to readily accessible index figures adopted by the plan (such as a Consumer Price Index) between the date the proposed cost was determined by the consent authority and the date the levy is required to be paid.

(5)  To avoid doubt, nothing in this clause affects the determination of the fee payable for a development application.

25K   Section 94A levy—maximum percentage

(1)  The maximum percentage of the proposed cost of carrying out development that may be imposed by a levy under section 94A of the Act is:

(a)  in the case of development other than development specified in paragraph (b):

(i)  if the proposed cost of carrying out the development is up to and including $100,000—nil, or

(ii)  if the proposed cost of carrying out the development is more than $100,000 and up to and including $200,000—0.5 per cent of that cost, or

(iii)  if the proposed cost of carrying out the development is more than $200,000—1 per cent of that cost, or

(b)  in the case of development on land specified in the Table to this paragraph—the percentage specified in Column 2 of the Table opposite the relevant proposed cost of carrying out the development listed in Column 1 of the Table.

Table

Column 1	Column 2
Proposed cost of carrying out the development	Maximum percentage of the levy
Land within the Neighbourhood Centre, Commercial Core, Mixed Use or Enterprise Corridor zone under Liverpool City Centre Local Environmental Plan 2007
Less than $1,000,000	Nil
$1,000,000 or more	3 per cent
Land within the High Density Residential or Light Industrial zone under Liverpool City Centre Local Environmental Plan 2007
Less than $1,000,000	Nil
$1,000,000 or more	2 per cent
Land within the Commercial Core zone under Wollongong City Centre Local Environmental Plan 2007
Up to and including $250,000	Nil
More than $250,000	2 per cent
Land identified on the Land Application Map under the Gosford City Centre Local Environmental Plan 2007
Up to and including $250,000	Nil
More than $250,000	4 per cent
Land identified on the Land Application Map under Parramatta City Centre Local Environmental Plan 2007
Up to and including $250,000	Nil
More than $250,000	3 per cent
Land identified on the Land Application Map under Newcastle City Centre Local Environmental Plan 2008
Up to and including $100,000	Nil
More than $100,000, up to and including $200,000	0.5 per cent
More than $200,000, up to and including $250,000	1 per cent
More than $250,000	3 per cent
Land identified on the Land Application Map under Burwood Local Environmental Plan (Burwood Town Centre) 2010
Up to and including $250,000	Nil
More than $250,000	4 per cent

(2)  This clause is subject to any direction given by the Minister under section 94E (1) (d) of the Act.

Division 1C Preparation of contributions plans

26   In what form must a contributions plan be prepared?

(cf clause 25 of EP&A Regulation 1994)

(1)  A contributions plan must be prepared having regard to any relevant practice notes adopted for the time being by the Director-General, copies of which are available for inspection and purchase from the offices of the Department.

(2)  One or more contributions plans may be made for all or any part of the council’s area and in relation to one or more public amenities or public services.

(2A)  Despite subclause (2), a contributions plan may be made for land outside the council’s area for the purposes of a condition referred to in section 94CA of the Act.

(3)  The council must not approve a contributions plan that is inconsistent with any direction given to it under section 94E of the Act.

(4)  A draft contributions plan must be publicly exhibited for a period of at least 28 days.

27   What particulars must a contributions plan contain?

(cf clause 26 of EP&A Regulation 1994)

(1)  A contributions plan must include particulars of the following:

(a)  the purpose of the plan,

(b)  the land to which the plan applies,

(c)  the relationship between the expected types of development in the area to which the plan applies and the demand for additional public amenities and services to meet that development,

(d)  the formulas to be used for determining the section 94 contributions required for different categories of public amenities and services,

(e)  the section 94 contribution rates for different types of development, as specified in a schedule to the plan,

(f)  if the plan authorises the imposition of a section 94A condition:

(i)  the percentage of the section 94A levy and, if the percentage differs for different types of development, the percentage of the levy for those different types of development, as specified in a schedule to the plan, and

(ii)  the manner (if any) in which the proposed cost of carrying out the development, after being determined by the consent authority, is to be adjusted to reflect quarterly or annual variations to readily accessible index figures adopted by the plan (such as a Consumer Price Index) between the date of that determination and the date the levy is required to be paid,

(g)  the council’s policy concerning the timing of the payment of monetary section 94 contributions, section 94A levies and the imposition of section 94 conditions or section 94A conditions that allow deferred or periodic payment,

(h)  a map showing the specific public amenities and services proposed to be provided by the council, supported by a works schedule that contains an estimate of their cost and staging (whether by reference to dates or thresholds),

(i)  if the plan authorises monetary section 94 contributions or section 94A levies paid for different purposes to be pooled and applied progressively for those purposes, the priorities for the expenditure of the contributions or levies, particularised by reference to the works schedule.

(2)  In determining the section 94 contribution rates or section 94A levy percentages for different types of development, the council must take into consideration the conditions that may be imposed under section 80A (6) (b) of the Act or section 97 (1) (b) of the Local Government Act 1993.

(3)  A contributions plan must not contain a provision that authorises monetary section 94 contributions or section 94A levies paid for different purposes to be pooled and applied progressively for those purposes unless the council is satisfied that the pooling and progressive application of the money paid will not unreasonably prejudice the carrying into effect, within a reasonable time, of the purposes for which the money was originally paid.

Division 2 Public participation

28   Draft contributions plan must be publicly exhibited

(cf clause 27 of EP&A Regulation 1994)

Following the preparation of a draft contributions plan, the council:

(a)  must give public notice in a local newspaper of the places, dates and times for inspection of the draft plan, and

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

(i)  a copy of the draft plan, and

(ii)  a copy of any supporting documents, and

(c)  must specify in the notice the period during which submissions about the draft plan may be made to the council (which must include the period during which the plan is being publicly exhibited).

29   Copies of draft contributions plans to be publicly available

(cf clause 28 of EP&A Regulation 1994)

Copies of the draft contributions plan, and of any supporting documents, are to be made available to interested persons, either free of charge or on payment of reasonable copying charges.

30   Who may make submissions about a draft contributions plan?

(cf clause 29 of EP&A Regulation 1994)

Any person may make written submissions to the council about the draft contributions plan during the relevant submission period.

Division 3 Approval of contributions plans

31   Approval of contributions plan by council

(cf clause 30 of EP&A Regulation 1994)

(1)  After considering any submissions about the draft contributions plan that have been duly made, the council:

(a)  may approve the plan in the form in which it was publicly exhibited, or

(b)  may approve the plan with such alterations as the council thinks fit, or

(c)  may decide not to proceed with the plan.

(2)  The council must give public notice of its decision in a local newspaper within 28 days after the decision is made.

(3)  Notice of a decision not to proceed with a contributions plan must include the council’s reasons for the decision.

(4)  A contributions plan comes into effect on the date that public notice of its approval is given in a local newspaper, or on a later date specified in the notice.

Division 4 Amendment and repeal of contributions plans

32   How may a contributions plan be amended or repealed?

(cf clause 31 of EP&A Regulation 1994)

(1)  A council may amend a contributions plan by a subsequent contributions plan.

(2)  A council may repeal a contributions plan:

(a)  by a subsequent contributions plan, or

(b)  by public notice in a local newspaper of its decision to repeal the plan.

(3)  A council may make the following kinds of amendments to a contributions plan without the need to prepare a new contributions plan:

(a)  minor typographical corrections,

(b)  changes to the rates of section 94 monetary contributions set out in the plan to reflect quarterly or annual variations to:

(i)  readily accessible index figures adopted by the plan (such as a Consumer Price Index), or

(ii)  index figures prepared by or on behalf of the council from time to time that are specifically adopted by the plan,

(c)  the omission of details concerning works that have been completed.

33   Procedure for repealing a contributions plan by public notice

(cf clause 32 of EP&A Regulation 1994)

(1)  Before repealing a contributions plan by public notice, the council must give public notice in a local newspaper:

(a)  of its intention to repeal the contributions plan, and

(b)  of its reasons for doing so.

(2)  Publication of the notice of intention must take place at least 14 days before publication of the notice of repeal.

(3)  The repeal of a contributions plan by public notice in a local newspaper takes effect on the date of publication of the notice.

33A   Review of contributions plan

(1)  A council is required to keep a contributions plan under review and, if a date by which a plan is to be reviewed is stated in it, is to review the plan by that date.

(2)  A council is also to consider any submissions about contributions plans received from public authorities or the public.

Division 5 Accounting

34   Councils must maintain contributions register

(cf clause 33 of EP&A Regulation 1994)

(1)  A council that imposes section 94 conditions or section 94A conditions on development consents must maintain a contributions register.

(2)  The council must record the following details in the register:

(a)  particulars sufficient to identify each development consent for which any such condition has been imposed,

(b)  the nature and extent of the section 94 contribution or section 94A levy required by any such condition for each public amenity or service,

(c)  the contributions plan under which any such condition was imposed,

(d)  the date or dates on which any section 94 contribution or section 94A levy required by any such condition was received, and its nature and extent.

35   Accounting for contributions and levies

(cf clause 34 of EP&A Regulation 1994)

(1)  A council must maintain accounting records that allow monetary section 94 contributions, section 94A levies, and any additional amounts earned from their investment, to be distinguished from all other money held by the council.

(2)  The accounting records for a contributions plan must indicate the following:

(a)  the various kinds of public amenities or services for which expenditure is authorised by the plan,

(b)  the monetary section 94 contributions or section 94A levies received under the plan, by reference to the various kinds of public amenities or services for which they have been received,

(ba)  in respect of section 94 contributions or section 94A levies paid for different purposes, the pooling or progressive application of the contributions or levies for those purposes, in accordance with any requirements of the plan or any ministerial direction under Division 6 of Part 4 of the Act,

(c)  the amounts spent in accordance with the plan, by reference to the various kinds of public amenities or services for which they have been spent.

(3)  A council must disclose the following information for each contributions plan in the notes to its annual financial report:

(a)  the opening and closing balances of money held by the council for the accounting period covered by the report,

(b)  the total amounts received by way of monetary section 94 contributions or section 94A levies during that period, by reference to the various kinds of public amenities or services for which they have been received,

(c)  the total amounts spent in accordance with the contributions plan during that period, by reference to the various kinds of public amenities or services for which they have been spent,

(d)  the outstanding obligations of the council to provide public amenities or services, by reference to the various kinds of public amenities or services for which monetary section 94 contributions or section 94A levies have been received during that or any previous accounting period.

36   Councils must prepare annual statements

(cf clause 35 of EP&A Regulation 1994)

(1)  As soon as practicable after the end of each financial year, a council must prepare an annual statement for the contributions plans in force in its area.

(2)  The annual statement must disclose, for each contributions plan, the information required by this Division to appear in the notes to its annual financial report.

Division 6 Public access

37   Councils must keep certain records available for public inspection

(cf clause 36 of EP&A Regulation 1994)

(1)  A council must make the following documents available for inspection:

(a)  each of its current contributions plans,

(b)  each of its annual statements,

(c)  its contributions register.

(2)  The documents must be available at the council’s principal office, free of charge, during the council’s ordinary office hours.

(3)  Subject to section 428 of the Local Government Act 1993, the annual statement may be included in, or form part of, the annual report prepared by the council under that section.

38   Copies of contributions plans to be publicly available

(cf clause 37 of EP&A Regulation 1994)

A council must make the following documents available for copying, either free of charge or on payment of reasonable copying charges:

(a)  each of its current contributions plans,

(b)  each document referred to in any such contributions plan that is held by the council.

Note. This clause does not require a council to supply certified copies of any document. Certified copies are supplied under section 150 of the Act on payment of a prescribed fee. The fee for a certified copy is prescribed by clause 262.

Part 5 Existing uses

39   Definitions

In this Part:

relevant date means:

(a)  in relation to an existing use referred to in section 106 (a) of the Act—the date on which an environmental planning instrument having the effect of prohibiting the existing use first comes into force, or

(b)  in relation to an existing use referred to in section 106 (b) of the Act—the date when the building, work or land being used for the existing use was first erected, carried out or so used.

40   Object of Part

The object of this Part is to regulate existing uses under section 108 (1) of the Act.

41   Certain development allowed

(cf clause 39 of EP&A Regulation 1994)

(1)  An existing use may, subject to this Division:

(a)  be enlarged, expanded or intensified, or

(b)  be altered or extended, or

(c)  be rebuilt, or

(d)  be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or

(e)  if it is a commercial use—be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or

(f)  if it is a light industrial use—be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act).

(2)  However, an existing use must not be changed under subclause (1) (e) or (f) unless that change:

(a)  involves only alterations or additions that are minor in nature, and

(b)  does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and

(c)  does not involve the rebuilding of the premises associated with the existing use, and

(d)  does not involve a significant intensification of that existing use, and

(e)  relates only to premises that have a floor space of less than 1,000 square metres.

(3)  In this clause:

commercial use means the use of a building, work or land for the purpose of office premises, business premises or retail premises (as those terms are defined in the Standard Instrument (Local Environmental Plans) Order 2006).

light industrial use means the use of a building, work or land for the purpose of light industry (within the meaning of the Standard Instrument (Local Environmental Plans) Order 2006).

42   Development consent required for enlargement, expansion and intensification of existing uses

(cf clause 40 of EP&A Regulation 1994)

(1)  Development consent is required for any enlargement, expansion or intensification of an existing use.

(2)  The enlargement, expansion or intensification:

(a)  must be for the existing use and for no other use, and

(b)  must be carried out only on the land on which the existing use was carried out immediately before the relevant date.

43   Development consent required for alteration or extension of buildings and works

(cf clause 41 of EP&A Regulation 1994)

(1)  Development consent is required for any alteration or extension of a building or work used for an existing use.

(2)  The alteration or extension:

(a)  must be for the existing use of the building or work and for no other use, and

(b)  must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.

44   Development consent required for rebuilding of buildings and works

(cf clause 42 of EP&A Regulation 1994)

(1)  Development consent is required for any rebuilding of a building or work used for an existing use.

(2)  The rebuilding:

(a)  must be for the existing use of the building or work and for no other use, and

(b)  must be carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.

45   Development consent required for changes of existing uses

(cf clause 43 of EP&A Regulation 1994)

Development consent is required:

(a)  for any change of an existing use to another use, and

(b)  in the case of a building, work or land that is used for different existing uses, for any change in the proportions in which the various parts of the building, work or land are used for those purposes.

46   Uses may be changed at the same time as they are altered, extended, enlarged or rebuilt

(cf clause 44 of EP&A Regulation 1994)

Nothing in this Part prevents the granting of a development consent referred to in clause 42, 43 or 44 at the same time as the granting of a development consent referred to in clause 45.

46A   (Repealed)

Part 6 Procedures relating to development applications

Division 1 Development applications generally

47   Application of Part

(cf clause 45 of EP&A Regulation 1994)

This Part applies to all development applications.

Note. Because of the definition of development application in section 4 (1) of the Act, this Part does not apply to complying development or to applications for complying development certificates.

48   Consent authority to provide development application forms to intending applicants

(cf clause 45A of EP&A Regulation 1994)

The consent authority must provide any person intending to make a development application with:

(a)  the consent authority’s scale of fees for development applications generally, and

(b)  if the consent authority has determined the fee to accompany that particular application, advice of the amount determined, and

(c)  if the consent authority requires such an application to be in a particular form, blank copies of that form.

49   Who can make a development application?

(cf clause 46 of EP&A Regulation 1994)

(1)  A development application may be made:

(a)  by the owner of the land to which the development application relates, or

(b)  by any other person, with the consent in writing of the owner of that land.

(2)  Subclause (1) (b) does not require the consent in writing of the owner of the land for a development application made by a public authority if, before making the application, the public authority serves a copy of the application on the owner.

(3)  Despite subclause (1), a development application made by a lessee of Crown land may only be made with the consent in writing given by or on behalf of the Crown.

(3A)  Despite subclause (1), a development application made in respect of land owned by a Local Aboriginal Land Council may be made by a person referred to in that subclause only with the consent of the New South Wales Aboriginal Land Council.

(4)  In this clause, public authority includes an irrigation corporation within the meaning of the Water Management Act 2000 that the Minister administering that Act has, by order in writing, declared to have the status of a public authority for the purposes of this clause in relation to development of a kind specified in the order.

50   How must a development application be made?

(cf clause 46A of EP&A Regulation 1994)

(1)  A development application:

(a)  must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and

(b)  if the consent authority so requires, must be in the form approved by that authority, and

(c)  must be accompanied by the fee, not exceeding the fee prescribed by Part 15, determined by the consent authority, and

(d)  must be delivered by hand, sent by post or transmitted electronically to the principal office of the consent authority, but may not be sent by facsimile transmission.

(1A)  A development application that relates to a residential flat development, and that is made on or after 1 December 2003, must be accompanied by a design verification from a qualified designer, being a statement in which the qualified designer verifies:

(a)  that he or she designed, or directed the design, of the residential flat development, and

(b)  that the design quality principles set out in Part 2 of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development are achieved for the residential flat development.

(1B)  If a development application referred to in subclause (1A) is also accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in that subclause need not be verified to the extent to which they aim:

(a)  to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or

(b)  to improve the thermal performance of the building.

(2)  A development application that relates to development for which consent under the Wilderness Act 1987 is required must be accompanied by a copy of that consent.

(2A)  A development application that relates to development in respect of which a site compatibility certificate is required by a State Environmental Planning Policy must be accompanied by such a certificate.

(2B)  (Repealed)

(3)  Immediately after it receives a development application, the consent authority:

(a)  must register the application with a distinctive number, and

(b)  must endorse the application with its registered number and the date of its receipt, and

(c)  must give written notice to the applicant of its receipt of the application, of the registered number of the application and of the date on which the application was received.

(4)  In the case of a development application under section 78A (3) of the Act, the application must be accompanied by such matters as would be required under section 81 of the Local Government Act 1993 if approval were sought under that Act.

(5)  The consent authority must forward a copy of the development application to the relevant council if the council is not the consent authority.

(6)  If the development application is for designated development, the consent authority must forward to the Director-General (where the Minister or the Director-General is not the consent authority) and to the council (where the council is not the consent authority) a copy of the environmental impact statement, together with a copy of the relevant application.

Note. Additional requirements in relation to the making of a development application apply to applications for designated development, for integrated development and applications for development that affect threatened species.

(7)  In determining whether an alteration, enlargement or extension of a BASIX affected building is BASIX affected development, the consent authority must make its determination by reference to a genuine estimate of the construction costs of the work the subject of the development application, including any part of the work that is BASIX excluded development. The estimate must, unless the consent authority is satisfied that the estimated cost indicated in the development application is neither genuine nor accurate, be the estimate so indicated.

51   Rejection of development applications

(cf clause 47 (1)–(3) of EP&A Regulation 1994)

(1)  A consent authority may reject a development application within 7 days after receiving it if:

(a)  the application is illegible or unclear as to the development consent sought, or

(b)  the application does not contain any information, or is not accompanied by any document, specified in Part 1 of Schedule 1.

(2)  A consent authority may reject a development application within 14 days after receiving it if:

(a1)  being an application for development requiring concurrence, the application fails to include the concurrence fees appropriate for each concurrence relevant to the development, or

(a)  being an application for integrated development, the application fails:

(i)  to identify all of the approvals referred to in section 91 of the Act that are required to be obtained before the development may be carried out, or

(ii)  to include the approval fees appropriate for each approval relevant to the development, or

(iii)  to include the additional information required by this Regulation in relation to the development, or

(b)  being an application referred to in section 78A (8) (b) of the Act, the application is not accompanied by a species impact statement referred to in that paragraph.

(3)  An application that is rejected under this clause is taken for the purposes of the Act never to have been made.

(4)  The consent authority must refund to the applicant the whole of any application fee paid in connection with an application that is rejected under this clause.

(5)  Immediately after the rejection of a development application for:

(a)  development for which the concurrence of a concurrence authority is required, or

(b)  integrated development,

      the consent authority must notify each relevant concurrence authority or approval body of the rejection.

52   Withdrawal of development applications

(cf clause 47 (4)–(6) of EP&A Regulation 1994)

(1)  A development application may be withdrawn at any time prior to its determination by service on the consent authority of a notice to that effect signed by the applicant.

(2)  An application that is withdrawn is taken for the purposes of the Act (section 79 (6) of the Act and clause 90 (3) of this Regulation excepted) never to have been made.

(3)  The consent authority may (but is not required to) refund to the applicant the whole or any part of any application fee paid in connection with an application that has been withdrawn.

(4)  Immediately after the withdrawal of a development application for:

(a)  development for which the concurrence of a concurrence authority is required, or

(b)  integrated development,

      the consent authority must notify each relevant concurrence authority or approval body of the withdrawal.

53   Consent authority may require additional copies of development application and supporting documents

(cf clause 47A of EP&A Regulation 1994)

A consent authority that is required:

(a)  to refer a development application to another person, or

(b)  to arrange for the public display of a development application,

may require the applicant to give it as many additional copies of the development application and supporting documents as are reasonably required for that purpose.

54   Consent authority may request additional information

(cf clause 48 of EP&A Regulation 1994)

(1)  A consent authority may request the applicant for development consent to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the application.

(2)  The request:

(a)  must be writing, and

(b)  may specify a reasonable period within which the information must be provided to the consent authority.

(3)  The information that a consent authority may request includes, but is not limited to, information relating to any relevant matter referred to in section 79C (1) (b)–(e) of the Act or in any relevant environmental planning instrument.

(4)  However, the information that a consent authority may request does not include, in relation to building or subdivision work, the information that is required to be attached to an application for a construction certificate.

Note. The aim of this provision is to ensure that the consent authority does not oblige the applicant to provide these construction details up-front where the applicant may prefer to test the waters first and delay applying for a construction certificate until, or if, development consent is granted.

(5)  Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the consent authority in writing that the information will not be provided.

(6)  If the applicant for development consent has failed to provide any of the requested information by the end of:

(a)  any period specified as referred to in subclause (2) (b), or

(b)  such further period as the consent authority may allow,

      the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly.

55   What is the procedure for amending a development application?

(cf clause 48A of EP&A Regulation 1994)

(1)  A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined.

(2)  If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development.

(3)  If the development application is for:

(a)  development for which concurrence is required, as referred to in section 79B of the Act, or

(b)  integrated development,

      the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.

55A   Amendments with respect to BASIX commitments

(1)  This clause applies to a development application that has been accompanied by a BASIX certificate pursuant to clause 2A of Schedule 1 or to a development application in relation to BASIX optional development that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A of Schedule 1 for it to be so accompanied).

(2)  Without limiting clause 55, a development application may be amended or varied by the lodging of:

(a)  a new BASIX certificate to replace a BASIX certificate that accompanied the application, or to replace any subsequent BASIX certificate lodged under this clause, and

(b)  if any new accompanying document is required or any existing accompanying document requires amendment, a new or amended accompanying document.

(3)  If an amendment or variation of a development application, or of any accompanying document, results in the proposed development differing in any material respect from the description contained in a current BASIX certificate for the development, the application to amend or vary the development application must have annexed to it a replacement BASIX certificate whose description takes account of the amendment or variation.

(4)  In this clause, a reference to the accompanying document is a reference to any document required to accompany a development application pursuant to clause 2 of Schedule 1.

56   Extracts of development applications to be publicly available

(cf clause 48B of EP&A Regulation 1994)

(1)  This clause applies to all development other than designated or advertised development.

(2)  Extracts of a development application relating to the erection of a building:

(a)  sufficient to identify the applicant and the land to which the application relates, and

(b)  containing a plan of the building that indicates its height and external configuration, as erected, in relation to the site on which it is to be erected, if relevant for that particular development,

      are to be made available to interested persons, either free of charge or on payment of reasonable copying charges.

Note. The erection of a building is defined in the Act to include the rebuilding of, the making of structural alterations to, or the enlargement or extension of a building or the placing or relocating of a building on land.

57   Copyright in documents forming part of or accompanying development applications—applicant’s indemnification

(cf clause 48C of EP&A Regulation 1994)

Upon a development application being made under section 78A of the Act, the applicant (not being entitled to copyright) is taken to have indemnified all persons using the development application and documents in accordance with the Act against any claim or action in respect of breach of copyright.

Division 2 Development applications for development requiring concurrence

58   Application of Division

(cf clause 49 of EP&A Regulation 1994)

(1)  This Division applies to all development applications that relate to development for which the concurrence of a concurrence authority is required.

(2)  This Division does not apply in circumstances in which a concurrence authority’s concurrence may be assumed in accordance with clause 64.

(3)  This Division ceases to apply to a development application if the development application is rejected or withdrawn under clause 51 or 52.

59   Seeking concurrence

(cf clause 49A of EP&A Regulation 1994)

(1)  After it receives a development application for development requiring concurrence, the consent authority:

(a)  must forward a copy of the application (together with all accompanying documentation) to the concurrence authority whose concurrence is required, and

(b)  must notify the concurrence authority in writing of the basis on which its concurrence is required and of the date of receipt of the development application, and

(c)  if known at that time, must notify the concurrence authority in writing of the dates of the relevant submission period or periods if the application is to be publicly notified under section 79 or 79A of the Act.

(2)  In the case of a development application that indicates on its face that such concurrence is required, the application must be forwarded to the relevant concurrence authority within 2 days after the application is lodged.

60   Concurrence authority may require additional information

(cf clause 50 of EP&A Regulation 1994)

(1)  A concurrence authority whose concurrence has been sought may request the consent authority to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the question as to whether concurrence should be granted or refused.

(2)  The request:

(a)  must be in writing, and

(b)  may specify a reasonable period within which the information must be provided to the consent authority.

(3)  Immediately after receiving a request for additional information from a concurrence authority, a consent authority must request the applicant, in writing, to provide the information sought within the period specified by the concurrence authority.

(4)  Immediately after receiving the requested information from the applicant, the consent authority must forward that information to the concurrence authority.

(5)  Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the consent authority in writing that the information will not be provided.

(6)  If the applicant for development consent has failed to provide any of the requested information by the end of:

(a)  any period specified as referred to in subclause (2) (b), or

(b)  such further period as the concurrence authority may allow,

      the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly.

61   Forwarding of submissions to concurrence authorities

(cf clause 50A of EP&A Regulation 1994)

(1)  This clause applies to development that is required to be advertised or notified under section 79 or 79A of the Act.

(2)  Immediately after the expiration of the relevant submission period, the consent authority must forward to each concurrence authority a copy of all submissions received in response to the advertisement or notification.

62   Notification of decision

(cf clause 51 of EP&A Regulation 1994)

(1)  A concurrence authority that has received a development application from a consent authority must give written notice to the consent authority of its decision on the development application:

(a)  within 40 days after receipt of the copy of the application, or

(b)  in the case of development that is required to be advertised or notified under section 79 or 79A of the Act, within 21 days after it receives:

(i)  the last of the submissions made during the relevant submission period, or

(ii)  advice from the consent authority that no submissions were made.

Note. This period may be extended by operation of Division 11.

(2)  If the consent authority determines a development application by refusing to grant consent before the expiration of the relevant period under subclause (1):

(a)  the consent authority must notify the concurrence authority as soon as possible after the determination, and

(b)  this clause ceases to apply to the development application.

(3)  Nothing in this clause prevents a consent authority from having regard to a concurrence authority’s decision on a development application that has been notified to the consent authority after the expiration of the relevant period under subclause (1).

63   Reasons for granting or refusal of concurrence

(cf clause 51A of EP&A Regulation 1994)

(1)  If the concurrence authority:

(a)  grants concurrence subject to conditions, or

(b)  refuses concurrence,

      the concurrence authority must give written notice to the consent authority of the reasons for the imposition of the conditions or the refusal.

(2)  If the concurrence is one that is required under section 79B (3) of the Act, a copy of the reasons must be available for public inspection, during ordinary office hours:

(a)  at the head office of the National Parks and Wildlife Service, or

(b)  if the matter concerns critical habitat of fish or marine vegetation, or threatened species, populations or ecological communities of fish or marine vegetation or their habitats, at the head office of NSW Fisheries.

64   Circumstances in which concurrence may be assumed

(cf clause 51B of EP&A Regulation 1994)

(1)  A concurrence authority may, by written notice given to the consent authority:

(a)  inform the consent authority that concurrence may be assumed, subject to such qualifications or conditions as are specified in the notice, and

(b)  amend or revoke an earlier notice under this clause.

(2)  A consent granted by a consent authority that has assumed concurrence in accordance with a notice under this clause is as valid and effective as if concurrence had been given.

Division 3 Development applications for integrated development

65   Application of Division

(cf clause 52 of EP&A Regulation 1994)

(1)  This Division applies to all development applications for integrated development.

(2)  This Division ceases to apply to a development application if the development application is rejected or withdrawn under clause 51 or 52.

66   Seeking general terms of approval

(cf clause 52A of EP&A Regulation 1994)

(1)  After it receives a development application for integrated development, the consent authority:

(a)  must forward a copy of the application (together with all accompanying documentation) to the approval body whose approval is required, and

(b)  must notify the approval body in writing of the basis on which its approval is required and of the date of receipt of the development application, and

(c)  if known at that time, must notify the approval body in writing of the dates of the relevant submission period if the application is to be publicly notified under section 79 or 79A of the Act.

(2)  In the case of a development application that indicates on its face that such an approval is required, the application must be forwarded to the relevant approval body within 2 days after the application is lodged.

67   Approval body may require additional information

(cf clause 53 of EP&A Regulation 1994)

(1)  An approval body the general terms of whose approval have been sought may request the consent authority to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the general terms of approval.

(2)  The request:

(a)  must be in writing, and

(b)  may specify a reasonable period within which the information must be provided to the consent authority.

(3)  Immediately after receiving a request for additional information from an approval body, a consent authority must request the applicant, in writing, to provide the information sought within the period specified by the approval body.

(4)  Immediately after receiving the requested information from the applicant, the consent authority must forward that information to the approval body.

(5)  Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the consent authority in writing that the information will not be provided.

(6)  If the applicant for development consent has failed to provide any of the requested information by the end of:

(a)  any period specified as referred to in subclause (2) (b), or

(b)  such further period as the approval body may allow,

      the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly.

68   Consent authority to be notified of proposed consultations under National Parks and Wildlife Act 1974

(cf clause 53AA of EP&A Regulation 1994)

(1)  If:

(a)  development is integrated development because, or partly because, it requires consent under section 90 of the National Parks and Wildlife Act 1974, and

(b)  the Director-General of National Parks and Wildlife is of the opinion that consultation with an Aboriginal person or persons, an Aboriginal Land Council or another Aboriginal organisation concerning a relic or Aboriginal place is required before the Director-General can make a decision concerning the general terms of approval in relation to such a consent (including whether or not the Director-General will grant consent),

      the Director-General must cause notice of that fact to be given to the consent authority.

69   Forwarding of submissions to approval bodies

(cf clause 53A of EP&A Regulation 1994)

(1)  This clause applies to development that is required to be advertised or notified under section 79 or 79A of the Act.

(2)  Immediately after the expiration of the relevant submission period, the consent authority must forward to each approval body a copy of all submissions received in response to the advertisement or notification.

70   Notification of general terms of approval

(cf clause 53B of EP&A Regulation 1994)

(1)  An approval body that has received a development application from a consent authority must give written notice to the consent authority of its decision concerning the general terms of approval in relation to the development application (including whether or not it will grant an approval):

(a)  within 40 days after receipt of the copy of the application, or

(b)  in the case of development that is required to be advertised or notified under section 79 or 79A of the Act, within 21 days after it receives:

(i)  the last of the submissions made during the relevant submission period, or

(ii)  advice from the consent authority that no submissions were made.

Note. This period may be extended by operation of Division 11.

(2)  If the consent authority determines a development application by refusing to grant consent before the expiration of the relevant period under subclause (1):

(a)  the consent authority must notify the approval body as soon as possible after the determination, and

(b)  this clause ceases to apply to the development application.

(3)  Nothing in this clause prevents a consent authority from having regard to an approval body’s general terms of approval that have been notified to the consent authority after the expiration of the relevant period under subclause (1).

Division 3A Special provisions relating to staged development applications

70A   Information to be included in staged development applications

Despite clause 50 (1) (a), the information required to be provided in a staged development application in respect of the various stages of the development may, with the approval of the consent authority, be deferred to a subsequent development application.

70B   Staged development applications—residential flat development

Clause 50 (1A) applies in relation to a staged development application only if the application sets out detailed proposals for the development or part of the development.

Division 4 Environmental impact statements

71   What is the form for an environmental impact statement?

(cf clause 54 of EP&A Regulation 1994)

For the purposes of section 78A (8) of the Act, the prescribed form for an environmental impact statement to accompany a development application is a form that contains the following information:

(a)  the name, address and professional qualifications of the person by whom the statement is prepared,

(b)  the name and address of the person by whom the development application was made,

(c)  the address of the land in respect of which the development application was made,

(d)  a description of the development to which the statement relates,

(e)  an assessment by the person by whom the statement is prepared of the environmental impact of the development to which the statement relates, dealing with the matters referred to in clause 72,

(f)  a declaration by the person by whom the statement is prepared to the effect that:

(i)  the statement has been prepared in accordance with clauses 72 and 73, and

(ii)  the statement contains all available information that is relevant to the environmental assessment of the development to which the statement relates, and

(iii)  that the information contained in the statement is neither false nor misleading.

72   What must an environmental impact statement contain?

(cf clause 54A of EP&A Regulation 1994)

(1)  The contents of an environmental impact statement must include:

(a)  for development of a kind for which specific guidelines are in force under this clause, the matters referred to in those guidelines, or

(b)  for any other kind of development:

(i)  the matters referred to in the general guidelines in force under this clause, or

(ii)  if no such guidelines are in force, the matters referred to in Schedule 2.

(2)  For the purposes of this clause, the Director-General may establish guidelines for the preparation of environmental impact statements, in relation to development generally or in relation to any specific kind of development.

(3)  The Director-General may vary or revoke any guidelines in force under this clause.

(4)  An environmental impact statement prepared in accordance with this clause before the date on which any of the following events occur:

(a)  the amendment of Schedule 2,

(b)  the establishment of new guidelines under this clause,

(c)  the variation or revocation of existing guidelines under this clause,

      is taken to have been prepared in accordance with this clause, for the purposes of any development application made within 3 months after that date, as if the relevant event had not occurred.

73   Requirements of Director-General and approval bodies concerning preparation of environmental impact statements

(cf clause 55 of EP&A Regulation 1994)

(1)  The applicant responsible for preparing an environmental impact statement must consult with the Director-General and, in completing the statement, must have regard to the Director-General’s requirements:

(a)  as to the form and content of the statement, and

(b)  as to making the statement available for public comment.

(2)  For the purposes of the consultation, the applicant must give the Director-General written particulars of:

(a)  the location, nature and scale of the development, and

(b)  in the case of a development application for integrated development, the approvals that are required.

(3)  In the case of proposed integrated development the Director-General must request, in writing, each relevant approval body to provide the Director-General with that approval body’s requirements in relation to the environmental impact statement for the purpose of its decision concerning the general terms of the approval in relation to the development (including whether or not it will grant an approval).

(4)  If an approval body does not provide the Director-General, in writing, with its requirements within 14 days after receipt of the Director-General’s request under subclause (3):

(a)  the Director-General must inform the applicant, and

(b)  the applicant:

(i)  must consult with the approval body and obtain its requirements in relation to the environmental impact statement for the purpose of its decision concerning the general terms of the approval in relation to the development (including whether or not it will grant an approval), and

(ii)  in completing the statement, must have regard to the approval body’s requirements.

(5)  Within 28 days after the applicant’s consultation with the Director-General is completed, or within such further time as is agreed between the Director-General and the applicant, written notice of the Director-General’s requirements must be given:

(a)  to the applicant, and

(b)  to the relevant consent authority (unless the Minister or the Director-General is the consent authority), and

(c)  to the relevant approval body (in the case of proposed integrated development for which the approval body has provided the Director-General with its requirements following the Director-General’s request under subclause (3)).

(6)  If the development application to which the environmental impact statement relates is not made within 2 years after the notice is given, the applicant must consult further with the Director-General in relation to the preparation of the statement.

(7)  The Director-General may waive the requirement for consultation under this clause in relation to any particular development or any particular class or description of development, other than integrated development.

74   Consent authority may require additional copies of environmental impact statement

(cf clause 55A of EP&A Regulation 1994)

The consent authority may require an applicant for development consent for designated development to give it as many additional copies of the environmental impact statement as are reasonably required for the purposes of the Act.

75   Consent authority may sell copies of environmental impact statement to the public

(cf clause 56 of EP&A Regulation 1994)

(1)  Copies of an environmental impact statement may be sold by a consent authority to any member of the public for not more than $25 per copy.

(2)  A consent authority:

(a)  must pay the proceeds of sale to the applicant responsible for the preparation of the statement, and

(b)  must return to the applicant any unsold copies of the statement.

76   Documents adopted or referred to by environmental impact statement

(cf clause 56A of EP&A Regulation 1994)

(1)  Any document adopted or referred to by an environmental impact statement is taken to form part of the statement.

(2)  Nothing in this Part requires the applicant responsible for the preparation of an environmental impact statement to supply any person with a document that is publicly available.

Division 5 Public participation—designated development

77   Notice of application for designated development to public authorities (other than concurrence authorities and approval bodies)

(cf clause 57 of EP&A Regulation 1994)

At the same time as giving public notice under section 79 (1) of the Act, the consent authority must give written notice of a development application for designated development to such public authorities (other than relevant concurrence authorities or approval bodies) as, in the opinion of the consent authority, may have an interest in the determination of that development application.

78   What information must a written notice of designated development contain?

(cf clause 58 of EP&A Regulation 1994)

(1)  A written notice of a development application under section 79 (1) (b) of the Act must contain the following information:

(a)  a description (including the address) of the land on which the development is proposed to be carried out,

(b)  the name of the applicant and of the consent authority,

(c)  a description of the proposed development,

(d)  a statement that the proposed development is designated development,

(e)  a statement that the development application and the documents accompanying the application, including the environmental impact statement, may be inspected:

(i)  at the consent authority’s principal office, and

(ii)  at the Department’s offices (if the Minister or Director-General is not the consent authority), and

(iii)  at the council’s principal office (if the council is not the consent authority),

      for a period specified in the notice during the relevant authority’s ordinary office hours,

(f)  a statement that:

(i)  any person during the period specified under paragraph (e) may make written submissions to the consent authority concerning the development application, and

(ii)  if a submission is made by way of objection, the grounds of objection must be specified in the submission,

(g)  the dates of the period specified under paragraph (e),

(h)  if the proposed development is also integrated development:

(i)  a statement that the development is integrated development, and

(ii)  a statement of the approvals that are required and the relevant approval bodies for those approvals,

(i)  a statement that, unless the proposed development is development about which the Planning Assessment Commission has conducted a review, any person:

(i)  who makes a submission by way of objection, and

(ii)  who is dissatisfied with the determination of the consent authority to grant development consent,

      may appeal to the Land and Environment Court,

(j)  a statement that, if the Planning Assessment Commission conducts a review, the Minister’s determination of the application is final and not subject to appeal.

(2)  The period referred to under subclause (1) (e) must include the period of 30 days commencing on the day after which notice of the development application is first published in a newspaper under section 79 (1) (d) of the Act.

79   How is the notice under section 79 (1) (c) of the Act exhibited on land for designated development?

(cf clause 59 of EP&A Regulation 1994)

(1)  The notice for a development application for designated development under section 79 (1) (c) of the Act:

(a)  must be exhibited on the land to which the development application relates, and

(b)  must be displayed on a signpost or board, and

(c)  must be clear and legible, and

(d)  must be headed in capital letters and bold type “DEVELOPMENT PROPOSAL”, and

(e)  must contain under that heading the following matters:

(i)  a statement that the development application has been lodged,

(ii)  the name of the applicant,

(iii)  a brief description of the development application,

(iv)  notice that the development application and the relevant environmental impact statement may be inspected at the places, on the dates and during the times specified in the notice, being the same places, dates and times specified in the written notice under section 79 (1) (b) of the Act, and

(f)  must, if practicable, be capable of being read from a public place.

80   How is the notice under section 79 (1) (d) published for designated development?

(cf clause 60 of EP&A Regulation 1994)

The notice for a development application for designated development under section 79 (1) (d) of the Act:

(a)  must be published on at least 2 separate occasions, and

(b)  must appear across 2 or 3 columns in the display section of the newspaper, and

(c)  must be headed in capital letters and bold type “DEVELOPMENT PROPOSAL”, and

(d)  must contain the same matters as are required for a notice under section 79 (1) (b) of the Act.

81   Forwarding of submissions to Director-General

(cf clause 62 of EP&A Regulation 1994)

For the purposes of section 80 (9) (b) of the Act, the consent authority must, immediately after the relevant submission period, forward to the Director-General (if the Minister or the Director-General is not the consent authority) a copy of all submissions (including submissions by way of objection) received in response to the public exhibition of a development application for designated development.

Note. This requirement will not apply if the Director-General has waived the requirement under section 80 (10) (b) of the Act.

Division 6 Public participation—State significant advertised development

82   Application of section 79 of the Act relating to designated development

(cf clause 64 of EP&A Regulation 1994)

(1)  For the purposes of section 79A (1) of the Act, section 79 of the Act applies to a development application for State significant advertised development in the same way as it applies to a development application for designated development, and this Division applies accordingly.

(2)  This Division does not apply to development on land to which clause 26F of Newcastle Local Environmental Plan 1987 applies.

83   What must a written notice under section 79 (1) (b) of the Act contain?

(cf clause 64 of EP&A Regulation 1994)

(1)  For the purposes of section 79 (1) (b) of the Act, a written notice of a development application for State significant advertised development must contain the following information:

(a)  a description (including the address) of the land on which the development is proposed to be carried out,

(b)  the name of the applicant and of the consent authority,

(c)  a description of the proposed development,

(d)  a statement that the proposed development is not designated development,

(e)  a statement that the development application and the documents accompanying the application may be inspected:

(i)  at the Department’s principal office, and

(ii)  at the council’s principal office,

      for a period specified in the notice during the relevant authority’s ordinary office hours,

(f)  a statement that:

(i)  any person during the period specified under paragraph (e) may make written submissions to the Director-General concerning the development application, and

(ii)  if a submission is made by way of objection, the grounds of objection must be specified in the submission,

(g)  the dates of the period specified under paragraph (e),

(h)  a statement that the Minister will determine the application,

(i)  if the development is also integrated development:

(i)  a statement that the development is integrated development, and

(ii)  a statement of the approvals that are required and the relevant approval bodies for those approvals.

(2)  The period referred to under subclause (1) (e) must include the period of 30 days commencing on the day after which notice of the development application is first published in a newspaper under section 79 (1) (d) of the Act.

84   How is the notice under section 79 (1) (c) of the Act to be exhibited on land?

(cf clause 64 of EP&A Regulation 1994)

The notice for a development application for State significant advertised development under section 79 (1) (c) of the Act:

(a)  must be exhibited on the land to which the development application relates, and

(b)  must be displayed on a signpost or board, and

(c)  must be clear and legible, and

(d)  must be headed in capital letters and bold type “DEVELOPMENT PROPOSAL”, and

(e)  must contain under that heading the following matters:

(i)  a statement that the development application has been lodged,

(ii)  the name of the applicant,

(iii)  a brief description of the development application,

(iv)  notice that the development application may be inspected at the places, on the dates and during the times specified in the notice, being the same places, dates and times specified in the written notice under section 79 (1) (b) of the Act, and

(f)  must, if practicable, be capable of being read from a public place.

85   How is the notice published under section 79 (1) (d) of the Act published?

(cf clause 64 of EP&A Regulation 1994)

The notice for a development application for State significant advertised development under section 79 (1) (d) of the Act:

(a)  must be published in the public notices section of the newspaper, and

(b)  must be headed in capital letters and bold type “DEVELOPMENT PROPOSAL”, and

(c)  must contain the same matters as are required for a notice under section 79 (1) (b) of the Act.

Division 7 Public participation—other advertised development

86   Application of Division

(cf clause 65 of EP&A Regulation 1994)

(1)  This Division applies to other advertised development.

(2)  This Division does not apply to development on land to which clause 26F of Newcastle Local Environmental Plan 1987 applies.

87   How must a development application be publicly notified?

(cf clause 65 of EP&A Regulation 1994)

As soon as practicable after a development application for other advertised development is lodged with the consent authority, the consent authority must:

(a)  give written notice of the application (referred to in this Division as a written notice), and

(b)  cause notice of the application to be published in a local newspaper (referred to in this Division as a published notice).

88   Who must written notice be given to?

(cf clause 65 of EP&A Regulation 1994)

(1)  Written notice of the development application must be given:

(a)  to such persons as appear to the consent authority to own or occupy the land adjoining the land to which the application relates, and

(b)  to such public authorities (other than relevant concurrence authorities or approval bodies) as, in the opinion of the consent authority, may have an interest in the determination of the application.

(2)  For the purposes of this clause:

(a)  if land is a lot within the meaning of the Strata Schemes (Freehold Development) Act 1973, a written notice to the owners corporation is taken to be a written notice to the owner or occupier of each lot within the strata scheme, and

(b)  if land is a lot within the meaning of the Strata Schemes (Leasehold Development) Act 1986, a written notice to the lessor under the leasehold strata scheme concerned and to the owners corporation is taken to be a written notice to the owner or occupier of each lot within the strata scheme, and

(c)  if land is owned or occupied by more than one person, a written notice to one owner or one occupier is taken to be a written notice to all the owners and occupiers of that land.

89   What information must be contained in a written notice and a published notice?

(cf clause 65 of EP&A Regulation 1994)

(1)  A written notice and a published notice of the development application must contain the following information:

(a)  a description of the land (including the address) on which the development is proposed to be carried out,

(b)  the name of the applicant and the name of the consent authority,

(c)  a description of the proposed development,

(d)  a statement that the application and the documents accompanying that application may be inspected at the consent authority’s principal office for a period specified in the notice during the consent authority’s ordinary office hours,

(e)  a statement that any person during the period specified under paragraph (d) may make a written submission in relation to the development application to the consent authority,

(f)  the dates of the period specified under paragraph (d).

(2)  The written notice and the published notice:

(a)  in the case of development that is integrated development:

(i)  must contain a statement that the development is integrated development, and

(ii)  must state the approvals that are required and the relevant approval bodies for those approvals, and

(b)  in the case of development that is threatened species development, must contain a statement that the development is threatened species development.

(3)  The period referred to in subclause (1) (d) must include:

(a)  in the case of nominated integrated development or threatened species development, the period of 30 days, and

(b)  in any other case, the period of 14 days,

      commencing on the day after the day on which the published notice is first published in a newspaper.

90   Circumstances in which notice requirements may be dispensed with

(cf clause 65 of EP&A Regulation 1994)

(1)  This clause applies to a development application that before being determined by the consent authority, has been amended or substituted, or that has been withdrawn and later replaced, where:

(a)  the consent authority has complied with this Division in relation to the original application, and

(b)  the consent authority is of the opinion that the amended, substituted or later application differs only in minor respects from the original application,

      referred to in this clause as a replacement application.

(2)  The consent authority may decide to dispense with further compliance with this Division in relation to a replacement application and, in that event, compliance with this Division in relation to the original application is taken to be compliance in relation to the replacement application.

(3)  The consent authority must give written notice to the applicant of its decision under this clause at or before the time notice of the determination of the replacement application is given under section 81 of the Act.

91   Public notification of development application and accompanying information

(cf clause 65 of EP&A Regulation 1994)

(1)  The consent authority must ensure that a development application is publicly notified in accordance with the relevant requirements and that any accompanying information is available for inspection during the relevant submission period at the place or places specified in the public notice.

(2)  During the relevant submission period:

(a)  any person may inspect the development application and any accompanying information and make extracts from or copies of them, and

(b)  any person may make written submissions to the consent authority with respect to the development application.

(3)  A submission by way of objection must set out the grounds of the objection.

Division 8 Determination of development applications

92   What additional matters must a consent authority take into consideration in determining a development application?

(cf clause 66 of EP&A Regulation 1994)

(1)  For the purposes of section 79C (1) (a) (iv) of the Act, the following matters are prescribed as matters to be taken into consideration by a consent authority in determining a development application:

(a)  in the case of a development application for the carrying out of development:

(i)  in a local government area referred to in the Table to this clause, and

(ii)  on land to which the Government Coastal Policy applies,

      the provisions of that Policy,

(b)  in the case of a development application for the demolition of a building, the provisions of AS 2601.

(2)  In this clause:

AS 2601 means the document entitled Australian Standard AS 2601—1991: The Demolition of Structures, published by Standards Australia, and as in force at 1 July 1993.

Government Coastal Policy means the publication entitled NSW Coastal Policy 1997: A Sustainable Future for the New South Wales Coast, as published by the Government (and including any maps accompanying that publication and any amendments to those maps that are publicly notified), a copy of which may be inspected during ordinary office hours:

(a)  at any of the offices of the Department, or

(b)  at the offices of any of the councils of the local government areas listed in the Table to this clause.

Table

Ballina Bega Valley Bellingen Byron Coffs Harbour Copmanhurst Eurobodalla Gosford* Great Lakes Greater Taree Hastings Kempsey Kiama Lake Macquarie* Lismore Maclean Maitland

Manly* Nambucca Newcastle* Pittwater* Port Stephens Pristine Waters Randwick* Richmond Valley Shellharbour* Shoalhaven Sutherland* Tweed Warringah* Waverley* Wollongong* Woollahra* Wyong*

Note. 

The areas marked with asterisks are only affected by the seaward part of the Government Coastal Policy, being the area extending 3 nautical miles seaward from the open coast high water mark.

92A   (Repealed)

93   Fire safety and other considerations

(cf clause 66A of EP&A Regulation 1994)

(1)  This clause applies to a development application for a change of building use for an existing building where the applicant does not seek the rebuilding, alteration, enlargement or extension of a building.

(2)  In determining the development application, the consent authority is to take into consideration whether the fire protection and structural capacity of the building will be appropriate to the building’s proposed use.

(3)  Consent to the change of building use sought by a development application to which this clause applies must not be granted unless the consent authority is satisfied that the building complies (or will, when completed, comply) with such of the Category 1 fire safety provisions as are applicable to the building’s proposed use.

Note. The obligation to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in relation to the relevant development consent.

(4)  Subclause (3) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4).

(5)  The matters prescribed by this clause are prescribed for the purposes of section 79C (1) (a) (iv) of the Act.

94   Consent authority may require buildings to be upgraded

(cf clause 66B of EP&A Regulation 1994)

(1)  This clause applies to a development application for development involving the rebuilding, alteration, enlargement or extension of an existing building where:

(a)  the proposed building work, together with any other building work completed or authorised within the previous 3 years, represents more than half the total volume of the building, as it was before any such work was commenced, measured over its roof and external walls, or

(b)  the measures contained in the building are inadequate:

(i)  to protect persons using the building, and to facilitate their egress from the building, in the event of fire, or

(ii)  to restrict the spread of fire from the building to other buildings nearby.

(c)  (Repealed)

(2)  In determining a development application to which this clause applies, a consent authority is to take into consideration whether it would be appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia.

(2A), (2B)  (Repealed)

(3)  The matters prescribed by this clause are prescribed for the purposes of section 79C (1) (a) (iv) of the Act.

94A   Fire safety and other considerations applying to erection of temporary structures

(1)  This clause applies to a development application for the erection of a temporary structure.

(2)  In determining a development application to which this clause applies, a consent authority is to take into consideration:

(a)  whether the fire protection and structural capacity of the structure will be appropriate to the proposed use of the structure, and

(b)  whether the ground or other surface on which the structure is to be erected will be sufficiently firm and level to sustain the structure while in use.

(3)  The matters prescribed by this clause are prescribed for the purposes of section 79C (1) (a) (iv) of the Act.

95   Deferred commencement consent

(cf clause 67 of EP&A Regulation 1994)

(1)  A “deferred commencement” consent must be clearly identified as a “deferred commencement” consent (whether by the use of that expression or by reference to section 80 (3) of the Act or otherwise).

(2)  A “deferred commencement” consent must clearly distinguish conditions concerning matters as to which the consent authority must be satisfied before the consent can operate from any other conditions.

(3)  A consent authority may specify the period within which the applicant must produce evidence to the consent authority sufficient enough to enable it to be satisfied as to those matters.

(4)  The applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period.

(5)  If the applicant produces evidence in accordance with this clause, the consent authority must notify the applicant whether or not it is satisfied as to the relevant matters.

(6)  If the consent authority has not notified the applicant within the period of 28 days after the applicant’s evidence is produced to it, the consent authority is, for the purposes only of section 97 of the Act, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires.

Note. See also section 109O of the Act and clause 161 of this Regulation.

96   Imposition of conditions—ancillary aspects of development

(cf clause 67A of EP&A Regulation 1994)

(1)  If a consent authority grants development consent subject to a condition authorised by section 80A (2) of the Act with respect to an ancillary aspect of the development, the consent authority may specify the period within which the ancillary aspect must be carried out to the satisfaction of the consent authority, or a person specified by the consent authority, as referred to in that subsection.

(2)  The applicant may produce evidence to the consent authority, or to the person specified by the consent authority for the purpose, sufficient to enable it, or the person so specified, to be satisfied in respect of the ancillary aspect of the development.

(3)  For the purposes of section 80A (3) of the Act, the relevant period is the period of 28 days after the applicant’s evidence is produced to the consent authority or a person specified by the consent authority.

97   Modification or surrender of development consent or existing use right

(cf clause 68 of EP&A Regulation 1994)

(1)  A notice of modification or surrender of a development consent or existing use right, as referred to in section 80A (5) of the Act, must include the following information:

(a)  the name and address of the person by whom the notice is given,

(b)  the address, and formal particulars of title, of the land to which the consent or right relates,

(c)  a description of the development consent or existing use right to be modified or surrendered,

(d)  particulars as to whether the consent or right is to be modified (including details of the modification) or surrendered,

(e)  if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the modification or surrender of the consent or right.

(2)  A duly signed and delivered notice of modification or surrender of a development consent or existing use right referred to in subclause (1):

(a)  takes effect when it is received by the consent authority, and

(b)  operates, according to its terms, to modify or surrender the development consent or existing use right to which it relates.

(3)  A notice of voluntary surrender of a development consent, as referred to in section 104A of the Act, is to be given to the consent authority and is to include the following information:

(a)  the name and address of the person by whom the notice is given,

(b)  the address, and formal particulars of title, of the land to which the consent relates,

(c)  a description of the development consent to be surrendered,

(d)  if the person giving the notice is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the surrender of the consent,

(e)  if development has commenced to be carried out in accordance with the consent—a statement setting out the circumstances that indicate:

(i)  that so much of the development as has been carried out has been carried out in compliance with any condition of the consent, or any agreement with the consent authority relating to the consent, that is relevant to that part of the development, and

(ii)  that the surrender will not have an adverse impact on any third party or the locality.

(4)  A duly signed and delivered notice of surrender of a development consent referred to in subclause (3):

(a)  takes effect when the consent authority notifies the person that:

(i)  it is satisfied that so much of the development as has been carried out has been carried out in compliance with any condition of the consent, or any agreement with the consent authority relating to the consent, that is relevant to that part of the development, and

(ii)  that the surrender will not have an adverse impact on any third party or the locality, and

(b)  operates, according to its terms, to surrender the consent to which it relates.

97A   Fulfilment of BASIX commitments

(1)  This clause applies to the following development:

(a)  BASIX affected development,

(b)  any BASIX optional development in relation to which a person has made a development application that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A of Schedule 1 for it to be so accompanied).

(2)  For the purposes of section 80A (11) of the Act, fulfilment of the commitments listed in each relevant BASIX certificate for development to which this clause applies is a prescribed condition of any development consent for the development.

Division 8A Prescribed conditions of development consent

98   Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989

(cf clauses 78 and 78A of EP&A Regulation 1994)

(1)  For the purposes of section 80A (11) of the Act, the following conditions are prescribed in relation to a development consent for development that involves any building work:

(a)  that the work must be carried out in accordance with the requirements of the Building Code of Australia,

(b)  in the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force before any building work authorised to be carried out by the consent commences.

(1A)  For the purposes of section 80A (11) of the Act, it is prescribed as a condition of a development consent for a temporary structure that is used as an entertainment venue, that the temporary structure must comply with Part B1 and NSW Part H102 of Volume One of the Building Code of Australia.

(2)  This clause does not apply:

(a)  to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4), or

(b)  to the erection of a temporary building, other than a temporary structure to which subclause (1A) applies.

(3)  In this clause, a reference to the Building Code of Australia is a reference to that Code as in force on the date the application is made for the relevant:

(a)  development consent, in the case of a temporary structure that is an entertainment venue, or

(b)  construction certificate, in every other case.

Note. There are no relevant provisions in the Building Code of Australia in respect of temporary structures that are not entertainment venues.

98A   Erection of signs

(1)  For the purposes of section 80A (11) of the Act, the requirements of subclauses (2) and (3) are prescribed as conditions of a development consent for development that involves any building work, subdivision work or demolition work.

(2)  A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

(a)  showing the name, address and telephone number of the principal certifying authority for the work, and

(b)  showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and

(c)  stating that unauthorised entry to the work site is prohibited.

(3)  Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

(4)  This clause does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building that does not affect the external walls of the building.

(5)  This clause does not apply in relation to Crown building work that is certified, in accordance with section 109R of the Act, to comply with the technical provisions of the State’s building laws.

(6)  This clause applies to a development consent granted before 1 July 2004 only if the building work, subdivision work or demolition work involved had not been commenced by that date.

Note. Principal certifying authorities and principal contractors must also ensure that signs required by this clause are erected and maintained (see clause 227A which currently imposes a maximum penalty of $1,100).

98B   Notification of Home Building Act 1989 requirements

(1)  For the purposes of section 80A (11) of the Act, the requirements of this clause are prescribed as conditions of a development consent for development that involves any residential building work within the meaning of the Home Building Act 1989.

(2)  Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the following information:

(a)  in the case of work for which a principal contractor is required to be appointed:

(i)  the name and licence number of the principal contractor, and

(ii)  the name of the insurer by which the work is insured under Part 6 of that Act,

(b)  in the case of work to be done by an owner-builder:

(i)  the name of the owner-builder, and

(ii)  if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.

(3)  If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the updated information.

(4)  This clause does not apply in relation to Crown building work that is certified, in accordance with section 109R of the Act, to comply with the technical provisions of the State’s building laws.

98C   Conditions relating to entertainment venues

For the purposes of section 80A (11) of the Act, the requirements set out in Schedule 3A are prescribed as conditions of development consent for the use of a building as an entertainment venue.

98D   Condition relating to maximum capacity signage

(1)  For the purposes of section 80A (11) of the Act, the requirement set out in subclause (2) is prescribed as a condition of development consent (including an existing development consent) for the following uses of a building, if the development consent for the use contains a condition specifying the maximum number of persons permitted in the building:

(a)  entertainment venue,

(b)  function centre,

(c)  pub,

(d)  registered club,

(e)  restaurant.

(2)  From 26 January 2010, a sign must be displayed in a prominent position in the building stating the maximum number of persons, as specified in the development consent, that are permitted in the building.

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

98E   Condition relating to shoring and adequacy of adjoining property

(1)  For the purposes of section 80A (11) of the Act, it is a prescribed condition of development consent that if the development involves an excavation that extends below the level of the base of the footings of a building on adjoining land, the person having the benefit of the development consent must, at the person’s own expense:

(a)  protect and support the adjoining premises from possible damage from the excavation, and

(b)  where necessary, underpin the adjoining premises to prevent any such damage.

(2)  The condition referred to in subclause (1) does not apply if the person having the benefit of the development consent owns the adjoining land or the owner of the adjoining land has given consent in writing to that condition not applying.

Division 9

99(Repealed)

Division 10 Post-determination notifications

100   Notice of determination

(cf clause 68A of EP&A Regulation 1994)

(1)  For the purposes of section 81 (1) of the Act, a notice of the determination of a development application must contain the following information:

(a)  whether the application has been granted or refused,

(b)  if the application has been granted, the terms of any conditions (including conditions prescribed under section 80A (11) of the Act) on which it has been granted,

(c)  if the application has been refused, or granted subject to conditions (other than conditions prescribed under section 80A (11) of the Act), the consent authority’s reasons for the refusal or for the imposition of those conditions,

(c1)  whether the applicant has the right to request a review of the determination under section 82A of the Act,

(c2)  in the case of a consent for a staged development application—whether a subsequent development application is required for any part of the site concerned,

(d)  the date on which the determination was made,

(e)  the date from which any development consent that is granted operates,

(f)  the date on which any development consent that is granted lapses,

(g)  if the development involves a building but does not require a construction certificate for the development to be carried out, the class of the building under the Building Code of Australia,

(h)  whether the Planning Assessment Commission has conducted a review of the application,

(i)  which approval bodies have given general terms of approval in relation to the development, as referred to in section 93 of the Act,

(j)  whether the Act gives a right of appeal against the determination to the applicant,

(k)  whether the Act gives a right of appeal against the determination to an objector.

(2)  The notice of determination must clearly identify the relevant development application by reference to its registered number.

(3)  A notice of determination of a grant of development consent must include a copy of any relevant plans endorsed by the consent authority.

(4)  In the case of a development consent granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, or a person specified by the consent authority, as to any matter specified in the condition:

(a)  the date from which the consent operates must not be endorsed on the notice of determination, and

(b)  if the applicant satisfies the consent authority, or person, as to the matter, the consent authority must give notice to the applicant of the date from which the consent operates.

(5)  (Repealed)

(6)  If the determination is one for which concurrence was required under section 79B (3) of the Act, a copy of the notice of determination:

(a)  except as provided by paragraph (b):

(i)  must be given to the Director-General of National Parks and Wildlife, and

(ii)  must be available for public inspection, during ordinary office hours, at the head office of the National Parks and Wildlife Service, or

(b)  if the matter concerns critical habitat of fish or marine vegetation, or threatened species, populations or ecological communities of fish or marine vegetation or their habitats:

(i)  must be given to the Director of NSW Fisheries, and

(ii)  must be available for public inspection, during ordinary office hours, at the head office of NSW Fisheries.

(7)  For the purposes of section 81 (1) of the Act, a notice of the determination of a development application relating to land owned by a Local Aboriginal Land Council must also be given to the New South Wales Aboriginal Land Council.

101   Additional particulars with respect to section 94 and 94A conditions

(cf clause 69A of EP&A Regulation 1994)

(1)  The notice to an applicant concerning a development consent the subject of a section 94 condition must include the following particulars in addition to any other particulars it is required to contain:

(a)  the specific public amenity or service in respect of which the condition is imposed,

(b)  the contributions plan under which the condition is imposed,

(c)  the address of the places where a copy of the contributions plan may be inspected.

(2)  The notice to an applicant concerning a development consent the subject of a section 94A condition must include the following particulars in addition to any other particulars it is required to contain:

(a)  the contributions plan under which the condition is imposed,

(b)  the address of the places where a copy of the contributions plan may be inspected.

102   How soon must a notice of determination be sent?

(cf clause 69 of EP&A Regulation 1994)

(1)  A notice under section 81 (1) of the Act must be sent to each person to whom it is required by that subsection to be sent within 14 days after the date of the determination of the applicant’s development application.

(2)  For the purposes of section 81 (1) (c) of the Act, any person who made a submission under the Act in relation to a development application (whether or not involving designated development) is required to be notified of the consent authority’s determination of the application.

(3)  Failure to send the notice within the 14-day period does not affect the validity of the notice or the development consent (if any) to which it relates.

103   Notice under section 81A of the Act of appointment of principal certifying authority

(cf clause 70 of EP&A Regulation 1994)

A notice given under or for the purposes of section 81A (2) (b1) (i) or (4) (b1) (i) of the Act must contain the following information:

(a)  (Repealed)

(b)  a description of the work to be carried out,

(c)  the address of the land on which the work is to be carried out,

(d)  the registered number and date of issue of the relevant development consent,

(e)  the name and address of the principal certifying authority, and of the person by whom the principal certifying authority was appointed,

(f)  if the principal certifying authority is an accredited certifier:

(i)  his, her or its accreditation number, and

(ii)  (Repealed)

(iii)  a statement signed by the accredited certifier to the effect that he, she or it consents to being appointed as principal certifying authority, and

(iv)  a telephone number on which he, she or it may be contacted for business purposes,

and, if the consent authority so requires, must be in the form approved by that authority.

103A   Notice under section 81A of the Act of critical stage inspections

A notice given under section 81A (2) (b1) (ii) of the Act must contain the following information:

(a)  the name and accreditation number of the principal certifying authority by whom the notice is given,

(b)  a telephone number on which the principal certifying authority can be contacted for business purposes,

(c)  the registered numbers of the development consent and of the construction certificate,

(d)  a description of the work to be carried out,

(e)  the address of the land at which the work is to be carried out,

(f)  a list of the critical stage inspections and other inspections required to be carried out in respect of the work.

104   Notice under section 81A of the Act of intention to commence subdivision work or erection of building

(cf clause 70 of EP&A Regulation 1994)

A notice given under or for the purposes of section 81A (2) (c) or (4) (c) of the Act must contain the following information:

(a)  the name and address of the person by whom the notice is being given,

(b)  a description of the work to be carried out, and

(c)  the address of the land on which the work is to be carried out, and

(d)  the registered number and date of issue of the relevant development consent,

(e)  the registered number and date of issue of the relevant construction certificate,

(f)  a statement signed by or on behalf of the principal certifying authority to the effect that all conditions of the consent that are required to be satisfied prior to the work commencing have been satisfied,

(g)  the date on which the work is intended to commence,

and, if the consent authority so requires, must be in the form approved by that authority.

105   Notice under section 91A (6) or section 92 (7) of the Act to approval bodies of determination of development application for integrated development

(cf clause 70A of EP&A Regulation 1994)

(1)  A notice under section 91A (6) or section 92 (7) of the Act to an approval body must be sent to the approval body within 14 days after the date of the determination of the relevant development application.

(2)  Failure to send the notice within the 14-day period does not affect the validity of the notice or the development consent (if any) to which it relates.

Division 11 Time within which development application procedures to be completed

106   Definitions

In this Division, assessment period means:

(a)  the period of 21 or 40 days, as the case may be, prescribed by clause 62 (1) as the period within which a concurrence authority must notify its decision as to a development application relating to development that requires its concurrence, but only if that period has commenced to run, or

(b)  the period of 21 or 40 days, as the case may be, prescribed by clause 70 (1) as the period within which an approval body must notify its decision as to a development application relating to integrated development, but only if that period has commenced to run,

(c)  the period of 25 days referred to in clauses 109 (2), 110 (2) and 111 (2),

(d)  the period of 40 or 60 days, as the case may be, prescribed by clause 113 (1) as the period beyond which a development application is taken to have been refused.

107   First 2 days after development application is lodged

Neither the day on which a development application is lodged with the consent authority nor the following day are to be taken into consideration in calculating the number of days in any of the assessment periods.

108   Days prior to referral of application to other bodies to be disregarded

(1)  This clause applies to a development application:

(a)  that is required to be referred to a concurrence authority, other than a concurrence authority to which, under clause 59 (2), the application is required to be to be forwarded within 2 days after it is lodged or

(b)  that is required to be referred to an approval body, other than an approval body to which, under clause 66 (2), the application is required to be to be forwarded within 2 days after it is lodged.

(2)  Any day that occurs between the date on which a development application is lodged with a consent authority and:

(a)  the date on which the consent authority forwards it to a concurrence authority or approval body, or

(b)  the date occurring at the end of the period of 14 days after the application was lodged with the consent authority,

      whichever is the earlier, is not to be taken into consideration in calculating the number of days in any of the assessment periods.

109   Days occurring while consent authority’s request for additional information remains unanswered

(1)  Any day that occurs between the date of a consent authority’s request for additional information under clause 54 and:

(a)  the date on which the information is provided to the consent authority, or

(b)  the date on which the applicant notifies, or is taken to have notified, the consent authority in writing that the information will not be provided,

      whichever is the earlier, is not to be taken into consideration in calculating the number of days in any of the assessment periods.

(2)  Subclause (1) applies only if the relevant request is made within 25 days after the date on which the development application was lodged with the consent authority.

Note. The 25-day period may be extended by operation of clauses 107 and 108.

110   Days occurring while concurrence authority’s or approval body’s request for additional information remains unanswered

(1)  Any day that occurs between the date on which a consent authority receives a concurrence authority’s or approval body’s request for additional information under clause 60 or 67 and:

(a)  the date occurring 2 days after the date on which the consent authority refers to the concurrence authority or approval body the additional information provided by the applicant, or

(b)  the date occurring 2 days after the date on which the consent authority notifies the concurrence authority or approval body that the applicant has notified the consent authority that the additional information will not be provided,

      whichever is the earlier, is not to be taken into consideration in calculating the number of days in any of the assessment periods.

(2)  Subclause (1) applies only if the relevant request is made within 25 days after the date on which the development application is received by the concurrence authority or approval body concerned.

Note. The 25-day period may be extended by operation of clauses 107 and 108.

111   Days occurring during consultation under National Parks and Wildlife Act 1974

(1)  If:

(a)  development is integrated development because, or partly because, it requires consent under section 90 of the National Parks and Wildlife Act 1974, and

(b)  the Director-General of National Parks and Wildlife is of the opinion that consultation with an Aboriginal person or persons, an Aboriginal Land Council or another Aboriginal organisation concerning a relic or Aboriginal place is required before the Director-General can make a decision concerning the general terms of approval in relation to such a consent (including whether or not the Director-General will grant consent),

      any day that occurs during the consultation (being a period that does not extend more than 46 days from the date on which the development application was lodged with the consent authority) is not to be taken into consideration for the purpose of calculating the number of days in any of the assessment periods.

(2)  Subclause (1) applies only if the consultation commences within 25 days after the date on which the development application is forwarded to the Director-General of National Parks and Wildlife.

Note. The 25-day period may be extended by operation of clauses 107 and 108.

112   Consent authority to notify applicant that time has ceased to run

(1)  On the occurrence of each of the following events, namely:

(a)  a request by a consent authority for additional information under clause 54,

(b)  the receipt by a consent authority of a concurrence authority’s or approval body’s request for additional information under clause 60 or 67,

(c)  the receipt by a consent authority of a notice from the Director-General of National Parks and Wildlife under clause 68,

      the consent authority must notify the applicant of the effect that this Division has on the various assessment periods to which this Division relates as a consequence of those events having occurred.

(2)  If several events require notification under this clause, a single notification referring to each of those events is sufficient.

Note. The object of this clause is to ensure that the applicant is kept informed as to when the various deadlines imposed by this Regulation occur in relation to the processing of his or her development application and, in particular, as to when any right of appeal may arise as a consequence of a deemed refusal of the application.

113   When is an application taken to be refused?

(cf clause 70B of EP&A Regulation 1994)

(1)  For the purposes of section 82 (1) of the Act, a development application is taken to be refused if a consent authority has not determined the application within:

(a)  40 days, except in the case of development referred to in paragraph (b), or

(b)  60 days, in the case of:

(i)  designated development, or

(ii)  integrated development (other than integrated development that, pursuant to State Environmental Planning Policy No 62—Sustainable Aquaculture, is Class 1 aquaculture development), or

(iii)  development for which the concurrence of a concurrence authority is required.

(2)  The 40-day and 60-day periods are measured from:

(a)  the date the development application is lodged with the consent authority, or

(b)  the date the Commission complies with clause 268V (3), if a review has been conducted by the Planning Assessment Commission into development that is not designated development, or part of any such development.

(3)  In the case of designated development or other advertised development for which the relevant submission period exceeds 30 days, the 60-day period is to be increased by that part of the submission period that exceeds 30 days, despite subclause (1).

(4)  If the relevant submission period for a development application for designated development is more than 30 days, the consent authority is to notify the applicant of the period and the effect of the extension of the period on the operation of this Division for the purposes of section 82 of the Act.

Note. Clause 107 provides that certain periods of time are to be ignored when calculating a 40-day or 60-day period under this clause. Deemed refusal provisions do not apply to development under section 80 (7) of the Act (where a public inquiry is held into designated development) or to any State significant development for which a public inquiry is held.

113A   Public participation: application under section 82A of the Act for review of council’s determination

(1)  This clause applies to an application under section 82A of the Act for review by a council of its determination of a development application.

(2)  An application to which this clause applies must be notified or advertised for a period not exceeding 14 days, but otherwise in the same manner as the original development application was notified or advertised.

(3)  However, if the application is made to a council that has provided in a development control plan for the notification or advertising of such an application, the application is to be notified or advertised in accordance with the development control plan.

(4)  The council must cause copies of the application to be given to each concurrence authority for the development to which the application relates.

(5)  The notice or advertisement referred to in subclause (2) must contain the following information:

(a)  a brief description of the original development application and the land to which it relates,

(b)  a statement that submissions concerning the application for review may be made to the council within the period referred to in section 82A (4) (b) of the Act.

(6)  For the purposes of section 82A (4) (b) of the Act, the period within which submissions may be made in relation to such an application is the period specified:

(a)  in subclause (2), except as provided by paragraph (b), or

(b)  if the council has made a development control plan specifying such a period, in the development control plan.

(7)  During the period referred to in subclause (2) or, if a development control plan provides for a period for notification or advertising of an application, during that period, any person may inspect the application and any accompanying information and make extracts from or copies of them.

113B   Period after which Crown development applications may be referred to Minister or regional panel

(1)  For the purposes of section 89 (2) of the Act, the prescribed period is 70 days after the Crown development application is lodged with the consent authority.

(2)  For the purposes of section 89 (5) of the Act, the prescribed period is 50 days after the Crown development application is referred to the applicable regional panel under section 89 (2) (b) of the Act.

Division 12 Development consents—extension, completion and modification

114   What is the form for an application for extension of a development consent?

(cf clause 71 of EP&A Regulation 1994)

An application under section 95A of the Act for the extension of time to commence development:

(a)  must be in writing, and

(b)  must identify the development consent to which it relates, and

(c)  must indicate why the consent authority should extend the time.

114A   (Repealed)

115   What are the requirements for an application for modification of a development consent?

(cf clause 71A of EP&A Regulation 1994)

(1)  An application for modification of a development consent under section 96 (1), (1A) or (2) or 96AA (1) of the Act must contain the following information:

(a)  the name and address of the applicant,

(b)  a description of the development to be carried out under the consent (as previously modified),

(c)  the address, and formal particulars of title, of the land on which the development is to be carried out,

(d)  a description of the proposed modification to the development consent,

(e)  a statement that indicates either:

(i)  that the modification is merely intended to correct a minor error, misdescription or miscalculation, or

(ii)  that the modification is intended to have some other effect, as specified in the statement,

(f)  a description of the expected impacts of the modification,

(g)  an undertaking to the effect that the development (as to be modified) will remain substantially the same as the development that was originally approved,

(h)  if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the making of the application (except where the application for the consent the subject of the modification was made, or could have been made, without the consent of the owner),

(i)  a statement as to whether the application is being made to the Court (under section 96) or to the consent authority (under section 96AA),

      and, if the consent authority so requires, must be in the form approved by that authority.

(1A)  In addition, an application for the modification of a development consent under section 96 (2) or 96AA (1) of the Act, if it relates to residential flat development for which the development application was required to be accompanied by a design verification from a qualified designer under clause 50 (1A), must be accompanied by a design verification from a qualified designer, being a statement in which the qualified designer verifies that:

(a)  he or she designed, or directed the design, of the modification of the residential flat development, and

(b)  the residential flat development, as modified, achieves the design quality principles set out in Part 2 of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development, and

(c)  the modifications do not diminish or detract from the design quality, or compromise the design intent, of the development for which the development consent was granted.

(1AA)  If an application referred to in subclause (1A) is also accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in that subclause need not be verified to the extent to which they aim:

(a)  to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or

(b)  to improve the thermal performance of the building.

(1B)  The consent authority may refer the proposed modification to the relevant design review panel.

(1C)  An application for the modification of a development consent under section 96 (1A) or (2) of the Act, if it relates to development for which the development application was required to be accompanied by a BASIX certificate or BASIX certificates, or if it relates to BASIX optional development in relation to which a person has made a development application that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A of Schedule 1 for it to be so accompanied), must also be accompanied by the appropriate BASIX certificate or BASIX certificates.

(1D)  The appropriate BASIX certificate for the purposes of subclause (1C) is:

(a)  if the current BASIX certificate remains consistent with the proposed development, the current BASIX certificate, and

(b)  if the current BASIX certificate is no longer consistent with the proposed development, a new BASIX certificate to replace the current BASIX certificate.

(1E)  An application for modification of a development consent under section 96 (1), (1A) or (2) or 96AA (1) of the Act relating to land owned by a Local Aboriginal Land Council may be made only with the consent of the New South Wales Aboriginal Land Council.

(2)  The application must be accompanied by the fee prescribed by clause 258.

(3)  A development consent may not be modified by the Land and Environment Court under section 96 of the Act if an application for modification of the consent has been made to the consent authority under section 96AA of the Act and has not been withdrawn.

116   Applications for modification of development consents granted by the Land and Environment Court or the Minister

(cf clause 72 of EP&A Regulation 1994)

(1)  The object of this clause is to vary the requirements of the Act in relation to the modification of development consents granted by the Land and Environment Court or by the Minister.

(2)  (Repealed)

(3)  A copy of an application for the modification of such a development consent is not to be lodged with the Court, but with the consent authority that dealt with the original development application from which that consent arose.

(4)  A copy of the application for modification of a development consent granted by the Minister under section 80 (7) of the Act is to be lodged with the council.

117   Public participation—applications for modification of development consents involving minimal environmental impact

(1)  This clause applies to an application under section 96 (1A) of the Act or under section 96AA of the Act in respect of a modification which, in the opinion of the consent authority, is of minimal environmental impact.

(2)  If an application to which this clause applies is required by a development control plan to be notified or advertised and the development consent was granted by the Court on appeal, the application must be so notified or advertised by the consent authority to which the original development application was made.

(3)  A consent authority referred to in subclause (2) must, in the case of an application under section 96AA of the Act, notify the Court of:

(a)  the manner in which the application was notified or advertised, and

(b)  any submission period required by the development control plan, and

(c)  the date (or dates) on which the application was notified or advertised.

(3A)  If an application to which this clause applies relates to a development consent that was originally granted or deemed to have been refused by a regional panel, the council or councils of the area in which the development concerned is to be carried out are to notify or advertise the application, and are to notify the Court (if applicable), in accordance with this clause instead of the regional panel.

(4)  If a development control plan provides for a period for notification or advertising of an application, any person during that period may inspect the application and any accompanying information and make extracts from or copies of them.

118   Public participation—applications under sections 96 (2) and 96AA for modification of certain development consents

(cf clause 72A of EP&A Regulation 1994)

(1)  This clause applies to an application under section 96 (2) or 96AA (1) of the Act to modify a development consent if the original development application for the consent was an application to carry out any of the following:

(a)  designated development,

(b)  State significant advertised development,

(c)  any other advertised development where the application was made to a consent authority other than a council.

(2)  Notice of the application must be published in a local newspaper by the relevant consent authority, that is:

(a)  by the consent authority that granted the development consent, or

(b)  by the consent authority to which the original development application was made, if development consent was granted by the Court on appeal, or

(c)  by the council or councils of the area in which the development concerned is to be carried out, if the development consent was granted by a regional panel or if the development consent was granted by the Court on appeal and the original development consent was granted or was deemed to have been refused by a regional panel.

(3)  The relevant consent authority must also cause notice of the application to be given to each person who made a submission in relation to the original development application.

(4)  A consent authority referred to in subclause (2) (b) or a council referred to in subclause (2) (c) (if development consent was granted by the Court) must, in the case of an application under section 96AA of the Act, notify the Court of the date on which notice of the application is published under subclause (2).

(5)  The notice published under subclause (2) must contain the following information:

(a)  a brief description of the development consent, the land to which it relates and the details of the modification sought,

(b)  a statement that written submissions concerning the proposed modification may be made to the consent authority that publishes the notice within the period specified in accordance with paragraph (c),

(c)  the period during which the application may be inspected at the principal office of the consent authority that publishes the notice,

(d)  a statement that, if the application is approved, there is no right of appeal to the Court by an objector.

(6)  For the purposes of sections 96 (2) (d) and 96AA (1) (d) of the Act, the period referred to in subclause (5) (c) must be a period of at least 14 days commencing on the day after which notice of the application for modification is first published in a local newspaper.

(7)  During the period referred to in subclause (5) (c), any person may inspect the application and any accompanying information and make extracts from or copies of them.

119   Public participation—applications under sections 96 (2) and 96AA for modification of other development consents

(1)  This clause applies to an application under section 96 (2) of the Act to which clause 118 does not apply or under section 96AA (1) of the Act to which clauses 117 and 118 do not apply.

(2)  An application to which this clause applies must be notified or advertised for a period not exceeding 14 days but otherwise in the same manner as the original development application was notified or advertised.

(3)  However, if the application is made to a council that has provided in a development control plan for the notification or advertising of such an application (or has provided that such an application is not required to be notified or advertised), the application is to be notified or advertised in accordance with the development control plan.

(4)  If an application to which this clause applies is required by this clause or a development control plan to be notified or advertised and the development consent was granted by the Court on appeal, the application must be so notified or advertised by the council to which the original development application was made.

(5)  A council referred to in subclause (4) must, in the case of an application under section 96AA of the Act, notify the Court of:

(a)  the manner in which the application was notified or advertised, and

(b)  any submission period required by the development control plan, and

(c)  the date (or dates) on which the application was notified or advertised.

(5A)  If an application to which this clause applies is made about a development consent granted, or deemed to have been refused, by a regional panel, the council or councils of the area in which the development concerned is to be carried out are to notify or advertise the application, and are to notify the Court (if applicable), in accordance with this clause instead of the regional panel.

(6)  During the period referred to in subclause (2) or, if a development control plan provides for a period for notification or advertising of an application, during that period, any person may inspect the application and any accompanying information and make extracts from or copies of them.

120   Notification of concurrence authorities and approval bodies

(1)  As soon as practicable after receiving an application for the modification of a development consent, a consent authority must cause a copy of the application to be given to each concurrence authority and approval body for the development to which the application relates.

(2)  If an application to which this clause applies is made about a development consent granted by a regional panel, the council or councils of the area in which the development concerned is to be carried out are to comply with subclause (1) instead of the regional panel.

121   Applications for modifications of development consents to be kept available for public inspection

(cf clause 73 of EP&A Regulation 1994)

(1)  An application for the modification of a development consent must be made available for inspection by the consent authority that published the notice of the application.

(2)  The application:

(a)  must be available at the consent authority’s principal office, free of charge, during the consent authority’s ordinary office hours, and

(b)  must be available for the period specified in the notice referred to in subclause (1).

122   Notice of determination of application to modify development consent

(cf clause 73A of EP&A Regulation 1994)

(1)  Notice in writing of the determination of an application for the modification of a development consent must be given to the applicant as soon as practicable after the determination is made.

(1A)  A notice of determination of an application granted for the modification of a development consent must include a copy of any relevant plans endorsed by the consent authority.

(2)  If the determination is made subject to conditions or by refusing the application, the notice:

(a)  must indicate the consent authority’s reasons for the imposition of the conditions or the refusal, and

(b)  must state that the Act gives a right of appeal against the determination, unless the development consent was granted by the Court.

(3)  If an application for the modification of a development consent applies to land owned by a Local Aboriginal Land Council, notice under subclause (1) must also be given to the New South Wales Aboriginal Land Council.

123   Persons to be informed of proposed revocation or modification of consent under section 96A (3) of the Act

(cf clause 73B of EP&A Regulation 1994)

(1)  For the purposes of section 96A (3) (a) (ii) of the Act, the Director-General of the Department of Fair Trading is a prescribed person if the proposed revocation or modification affects:

(a)  the transfer, alteration, repair or extension of water service pipes, or

(b)  the carrying out of sanitary plumbing work, sanitary drainage work or stormwater drainage work.

(2)  The notification of the proposed revocation or modification of a consent or a complying development certificate must include the reasons for the proposed revocation or modification.

123A   Effect of amendments made by Land and Environment Court Amendment Act 2002

(1)  The Act, as in force immediately before the commencement of the Land and Environment Court Amendment Act 2002, continues to apply to and in respect of:

(a)  a review of a determination requested under section 82A of the Act, but not completed, before that commencement, and

(b)  an appeal made under section 97 of the Act, but not finally determined, before that commencement.

(2)  The Act, as in force immediately before the commencement of the Land and Environment Court Amendment Act 2002, continues to apply to and in respect of the modification of a development consent the application for which was made, but not finally determined, before that commencement.

Division 12A Additional provisions where regional panel is exercising consent authority functions

123B   Application of Division

(1)  This Division applies to development for which a regional panel has the function of determining the development application or an application to modify a development consent.

(2)  In this Division, a reference to a development application includes a reference to an application to modify a development consent.

123C   Development applications where land is in 2 or more local government areas

(1)  This clause applies to development applications for development located in 2 or more local government areas.

(2)  A separate development application for the proposed development must be lodged with each council for an area in which the proposed development is situated.

123D   Provisions of Act not to apply as if regional panels were councils

(1)  For the purposes of section 23G (5A) of the Act, a regional panel is not taken to be the council for the purposes of the following provisions of the Act:

(a)  section 78A (3)–(6),

(b)  section 81 (2),

(c)  section 82A,

(d)  section 89 (2).

Note. Under section 23G (5A) of the Act, a regional panel exercising consent authority functions of a council is taken to be the council, subject to the regulations.

(2)  For the purposes of section 23G (5A) of the Act, a regional panel is not taken to be the council for the purposes of appeal proceedings under the Act, or proceedings under section 123 of the Act, if:

(a)  the council is the applicant for a development application or the modification of a development consent, and

(b)  the council makes an appeal under the Act, or brings proceedings under section 123 of the Act, in relation to a determination by the regional panel.

123E   Procedural matters related to determination of development applications

(1)  A regional panel may, for the purpose of determining a development application:

(a)  obtain assessment reports, in addition to any assessment report or other information provided by a relevant council in dealing with the application, and

(b)  obtain other technical advice or assistance as the panel thinks fit.

(2)  If a development consent is granted by a regional panel subject to a condition referred to in section 80 (3) or 80A (2) of the Act, the regional panel is taken to be satisfied as to a matter specified in the condition if the council for the area in which the land on which the development is to be carried out notifies the chairperson of the panel in writing that the matter specified in the condition has been satisfied.

123F   Procedural matters relating to determination of applications to modify consents

For the purposes of section 23H (a) of the Act, a regional panel may carry out consultation for the purposes of section 96 (2) (b) of the Act by directing the general manager of a council for an area in which the development the subject of the consent is to be carried out to consult with the relevant Minister, public authority or approval body on behalf of the regional panel.

Note. It is an offence under section 23N (2) of the Act for a general manager to fail to comply with a direction.

Division 13 Validity of development consents

124   What are the public notification procedures for the purposes of section 101 of the Act?

(cf clause 74 of EP&A Regulation 1994)

(1)  The granting of a development consent is publicly notified for the purposes of section 101 of the Act if:

(a)  public notice in a local newspaper is given:

(i)  by the consent authority, or

(ii)  if the consent authority is not the council, by the consent authority or the council, and

(b)  the notice describes the land and the development the subject of the development consent, and

(c)  the notice contains a statement that the development consent is available for public inspection, free of charge, during ordinary office hours:

(i)  at the consent authority’s principal office, or

(ii)  if the consent authority is not the council, at the consent authority’s office or the council’s principal office.

(2)  Nothing in this clause confers a right or entitlement to inspect, make copies of or take extracts from so much of a document that, because of section 12 (1A) of the Local Government Act 1993, a person does not have the right to inspect.

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 uses of a building may be the subject of a review condition:

(a)  entertainment venue,

(b)  function centre,

(c)  pub,

(d)  registered club,

(e)  restaurant.

(2)  Words and expressions used in this clause have the same meanings 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.

Part 7 Procedures relating to complying development certificates

Division 1 Applications for complying development certificates

125   Application of Part

(cf clause 75 of EP&A Regulation 1994)

This Part applies to complying development.

126   How must an application for a complying development certificate be made?

(cf clause 75A of EP&A Regulation 1994)

(1)  An application for a complying development certificate:

(a)  must contain the information, and be accompanied by the documents, specified in Part 2 of Schedule 1, and

(b)  if the certifying authority so requires, must be in the form approved by that authority, and

(c)  must be delivered by hand, sent by post or transmitted electronically to the principal office of the council or the accredited certifier, but may not be sent by facsimile transmission.

(2)  Immediately after it receives an application for a complying development certificate, the council or accredited certifier must endorse the application with the date of its receipt.

(3)  In determining whether an alteration, enlargement or extension of a BASIX affected building is BASIX affected development, the certifying authority must make its determination by reference to a genuine estimate of the construction costs of the work, including any part of the work that is BASIX excluded development. The estimate must, unless the certifying authority is satisfied that the estimated cost indicated in the application for a complying development certificate is neither genuine nor accurate, be the estimate so indicated.

127   Council or accredited certifier may require additional information

(cf clause 76 of EP&A Regulation 1994)

(1)  A council or accredited certifier may require the applicant for a complying development certificate to give the council or accredited certifier any additional information concerning the proposed development that is essential to the council’s or accredited certifier’s proper consideration of the application.

(1A)  A council or an accredited certifier may require that the additional information under subclause (1) be obtained by or on behalf of the applicant from a properly qualified person.

(2)  Nothing in this clause affects the council’s or accredited certifier’s duty to determine an application for a complying development certificate.

128   Council or accredited certifier to supply application form for complying development certificates

(cf clause 76A of EP&A Regulation 1994)

If the council or accredited certifier requires an application for a complying development certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.

129   Copyright in documents forming part of or accompanying applications for complying development certificates—applicant’s indemnification

(cf clause 76B of EP&A Regulation 1994)

Upon an application being made under section 85A (1) of the Act for a complying development certificate, the applicant (not being entitled to copyright) is taken to have indemnified all persons using the application and any accompanying documents in accordance with the Act against any claim or action in respect of breach of copyright.

129A   Amendments with respect to BASIX commitments

(1)  This clause applies to an application for a complying development certificate that has been accompanied by a BASIX certificate or certificates pursuant to clause 4A of Schedule 1 or to an application for a complying development certificate for BASIX optional development that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 4A of Schedule 1 for it to be so accompanied).

(2)  An application for a complying development certificate may be amended or varied by the lodging of:

(a)  a new BASIX certificate to replace a BASIX certificate that accompanied the application, or to replace any subsequent BASIX certificate lodged under this clause, and

(b)  if any new accompanying document is required or any existing accompanying document requires amendment, a new or amended accompanying document.

(3)  If an amendment or variation of an application for a complying development certificate, or of any accompanying document, results in the proposed development differing in any material respect from the description contained in a current BASIX certificate for the development, the application to amend or vary the application for the complying development certificate must have annexed to it a replacement BASIX certificate whose description takes account of the amendment or variation.

(4)  In this clause, a reference to the accompanying document is a reference to any document required to accompany an application for a complying development certificate pursuant to clause 4 of Schedule 1.

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.

129C   Record of site inspections

(1)  A council or accredited certifier must make a record of each inspection carried out by the council or accredited certifier for the purposes of clause 129B.

(2)  Any council or accredited certifier who is required to make such a record but is not the certifying authority in relation to the issue of the complying development certificate concerned must, within 2 days after the carrying out of the inspection, provide a copy of the record to the certifying authority.

(3)  The record must include the following:

(a)  the date of the application for the complying development certificate,

(b)  the address of the property at which the inspection was carried out,

(c)  the type of inspection,

(d)  the date on which the inspection was carried out,

(e)  if the inspection was carried out by a council, the name of the council and the identity and signature of the individual who carried out the inspection on behalf of the council,

(f)  if the inspection was carried out by an accredited certifier, the identity of the accredited certifier, including, in a case where the accredited certifier is an accredited body corporate, the identity of the individual who carried out the inspection on behalf of the body corporate,

(g)  if the inspection was carried out by an accredited certifier, the accreditation number of the accredited certifier, including, in a case where the accredited certifier is an accredited body corporate, the accreditation number of the individual who carried out the inspection on behalf of the body corporate,

(h)  details of the current fire safety measures in the existing buildings on the site that will be affected by the proposed development concerned,

(i)  details as to whether or not the plans and specifications accompanying the application for the complying development certificate adequately and accurately depict the existing site conditions,

(j)  details of any features of the site, or of any building on the site, that would result in the proposed development the subject of the application for the complying development certificate:

(i)  not being complying development, or

(ii)  not complying with the Building Code of Australia.

Division 2 Determination of applications and commencement of complying development

130AA   Time limit for determining application for complying development certificate

For the purposes of section 85A (8) of the Act, the period prescribed by the regulations is 10 days.

130   Procedure for determining application for complying development certificate and notification requirements

(cf clause 77 of EP&A Regulation 1994)

(1)  A certifying authority must not issue a complying development certificate for building work unless the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the certificate was made).

(2)  In the case of complying development that is required to comply with the deemed-to-satisfy provisions of Volume One, or Section 3 of Volume Two, of the Building Code of Australia, a complying development certificate cannot authorise compliance with an alternative solution to the performance requirements corresponding to those deemed-to-satisfy provisions.

(2A)  A certifying authority must not issue a complying development certificate for building work that involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement unless the certifying authority has obtained or been provided with either or both of the following issued by a fire safety engineer:

(a)  a compliance certificate referred to in section 109C (1) (a) (v) of the Act that certifies that the alternative solution complies with the relevant performance requirements of the Building Code of Australia,

(b)  a written report that includes a statement that the alternative solution complies with the relevant performance requirements of the Building Code of Australia.

(2B)  Until 28 February 2011, subclause (2A) applies only to building work in respect of:

(a)  a class 9a building, as defined in the Building Code of Australia, that is proposed to have a total floor area of 2,000 square metres or more, and

(b)  any building (other than a class 9a building) that is proposed to have:

(i)  a fire compartment, as defined in the Building Code of Australia, with a total floor area of more than 2,000 square metres, or

(ii)  a total floor area of more than 6,000 square metres,

      that involves an alternative solution under the Building Code of Australia in respect of the requirements set out in EP1.4, EP2.1, EP2.2, DP4 and DP5 in Volume 1 of that Code.

(2C)  From 1 March 2011, subclause (2A) applies to all building work that involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement.

(2D)  A fire safety engineer may issue a written report under subclause (2A) (b) in respect of an alternative solution prepared by the engineer.

(2E)  A certifying authority must not issue a complying development certificate for proposed development comprising internal alterations to, or a change of use of, an existing building that is subject to an alternative solution relating to a fire safety requirement under the Building Code of Australia unless:

(a)  the certifying authority has obtained or been provided with a written report by another accredited certifier, who is an accredited certifier for the purpose of issuing a complying development certificate for a building of that kind, and

(b)  the written report includes a statement that the proposed development is consistent with that alternative solution.

(3)  Evidence of the issue of a complying development certificate must be endorsed by the council or the accredited certifier on any plans, specifications and any other documents that were lodged with the application for the certificate or submitted to the accredited certifier in accordance with clause 126.

(4)  For the purposes of section 85A (11) (b) of the Act, the accredited certifier must cause notice of his or her determination of an application for a complying development certificate to be given to the council by forwarding to it, within 2 days after the date of the determination, copies of:

(a)  the determination, together with the application to which it relates, and

(b)  any endorsed plans, specifications or other documents that were lodged with the application or submitted to the accredited certifier in accordance with clause 127, and

(c)  any complying development certificate issued as a result of the determination, together with any associated fire safety schedule or fire link conversion schedule, and

(d)  the record of any inspection made for the purposes of clause 129B in relation to the issue of the complying development certificate unless the inspection was carried out by the council.

(5), (6)  (Repealed)

131   Development standards for change of building use

(1)  This clause applies to development for which a complying development certificate is sought involving a change of building use of an existing building.

(2)  The development standards applicable to such development include the following requirements:

(a)  that, on completion of any building work, the fire protection and structural capacity of the building will be appropriate to the proposed use,

(b)  that, whether or not any building work is carried out, the building will comply with such of the Category 1 fire safety provisions as are applicable to the proposed use,

      assuming that any building work is carried out in accordance with the plans and specifications to which the complying development certificate relates and any conditions to which the complying development certificate is subject.

132   Development standards for building work involving the alteration, enlargement or extension of an existing building

(1)  This clause applies to development for which a complying development certificate is sought involving the alteration, enlargement or extension of an existing building, otherwise than in connection with a change of building use of an existing building.

(2)  The development standards applicable to such development include the requirement that, on completion of the building work, the fire protection and structural capacity of the building will not be reduced.

(3)  That requirement assumes that the building work is carried out in accordance with the plans and specifications to which the complying development certificate relates and any conditions to which the complying development certificate is subject.

133   Development standards for erection of temporary structure

(1)  This clause applies to development for which a complying development certificate is sought involving the erection of a temporary structure.

(2)  The development standards applicable to such development include the following requirements:

(a)  the fire protection and structural capacity of the structure will, when the structure is erected, be appropriate to the proposed use of the structure,

(b)  the ground or other surface on which the structure is to be erected will be sufficiently firm and level to sustain the structure while in use.

134   Form of complying development certificate

(1)  A complying development certificate must contain the following:

(a)  the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,

(b)  if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate,

(b1)  if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,

(b2)  if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate,

(c)  the date of the certificate,

(d)  the date on which the certificate lapses,

(e)  a statement to the effect that the development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with such other requirements prescribed by this regulation concerning the issue of the certificate,

(f)  if the development involves the erection of a building, the class of the building under the Building Code of Australia,

(g)  any conditions imposed on the development under this Regulation.

(1A)  A complying development certificate for development that is complying development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 must also specify:

(a)  the land use zone within which the land is situated, and

(b)  if the land is not zoned under an environmental planning instrument made as provided by section 33A (2) of the Act, the equivalent named land use zone applicable to the land for the purposes of that Policy.

(2)  A complying development certificate for the erection of a building must be accompanied by a fire safety schedule for the building.

(2A)  A complying development certificate for any development must include a copy of any relevant plans endorsed by the certifying authority.

(3)  Subclause (2) does not apply to:

(a)  a class 1a or class 10 building within the meaning of clause 167, or

(b)  a complying development certificate that relates only to fire link conversion, or

(c)  the erection of a temporary structure.

Note. The documents that must be issued with and accompany a complying development certificate that relates only to fire link conversion are set out in clause 168A.

135   Notice under section 86 of the Act of appointment of principal certifying authority

(cf clause 77A of EP&A Regulation 1994)

A notice given under or for the purposes of section 86 (1) (a1) (i) or (2) (a1) of the Act must contain the following information:

(a)  (Repealed)

(b)  a description of the work to be carried out,

(c)  the address of the land on which the work is to be carried out,

(d)  the registered number and date of issue of the relevant complying development certificate,

(e)  the name and address of the principal certifying authority, and of the person by whom the principal certifying authority was appointed,

(f)  if the principal certifying authority is an accredited certifier:

(i)  his or her accreditation number, and

(ii)  (Repealed)

(iii)  a statement signed by the accredited certifier to the effect that he or she consents to being appointed as principal certifying authority, and

(iv)  a telephone number on which he or she may be contacted for business purposes,

and, if the consent authority so requires, must be in the form approved by that authority.

135A   Notice under section 86 of the Act of critical stage inspections

A notice given under section 86 (1) (a1) (ii) of the Act must contain the following information:

(a)  the name and address of the principal certifying authority by whom the notice is given,

(b)  a telephone number on which the principal certifying authority can be contacted for business purposes,

(c)  the registered number of the complying development certificate,

(d)  a description of the work to be carried out,

(e)  the address of the land at which the work is to be carried out,

(f)  a list of the critical stage inspections and other inspections required to be carried out in respect of the work.

136   Notice under section 86 of the Act of intention to commence subdivision work or erection of building

(cf clause 77A of EP&A Regulation 1994)

A notice given under or for the purposes of section 86 (1) (b) or (2) (b) of the Act must contain the following information:

(a)  the name and address of the person by whom the notice is being given,

(b)  a description of the work to be carried out,

(c)  the address of the land on which the work is to be carried out,

(d)  the registered number and date of issue of the relevant complying development certificate,

(e)  the date on which the work is intended to commence,

and, if the consent authority so requires, must be in the form approved by that authority.

Division 2A Conditions of complying development certificate

136A   Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989

(cf clauses 78 and 78A of EP&A Regulation 1994)

(1)  A complying development certificate for development that involves any building work must be issued subject to the following conditions:

(a)  that the work must be carried out in accordance with the requirements of the Building Code of Australia,

(b)  in the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance must be entered into and be in force before any building work authorised to be carried out by the certificate commences.

(1A)  A complying development certificate for a temporary structure that is used as an entertainment venue must be issued subject to the condition that the temporary structure must comply with Part B1 and NSW Part H102 of Volume One of the Building Code of Australia (as in force on the date the application for the relevant complying development certificate is made).

(2)  This clause does not limit any other conditions to which a complying development certificate may be subject, as referred to in section 85A (6) (a) of the Act.

(3)  This clause does not apply:

(a)  to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4), or

(b)  to the erection of a temporary building, other than a temporary structure that is used as an entertainment venue.

(4)  In this clause, a reference to the Building Code of Australia is a reference to that Code as in force on the date the application for the relevant complying development certificate is made.

Note. There are no relevant provisions in the Building Code of Australia in respect of temporary structures that are not entertainment venues.

136B   Erection of signs

(1)  A complying development certificate for development that involves any building work, subdivision work or demolition work must be issued subject to a condition that the requirements of subclauses (2) and (3) are complied with.

(2)  A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

(a)  showing the name, address and telephone number of the principal certifying authority for the work, and

(b)  showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and

(c)  stating that unauthorised entry to the site is prohibited.

(3)  Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

(4)  This clause does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building, that does not affect the external walls of the building.

(5)  This clause does not apply in relation to Crown building work that is certified, in accordance with section 109R of the Act, to comply with the technical provisions of the State’s building laws.

(6)  This clause applies to a complying development certificate issued before 1 July 2004 only if the building work, subdivision work or demolition work involved had not been commenced by that date.

Note. Principal certifying authorities and principal contractors must also ensure that signs required by this clause are erected and maintained (see clause 227A which currently imposes a maximum penalty of $1,100).

136C   Notification of Home Building Act 1989 requirements

(1)  A complying development certificate for development that involves any residential building work within the meaning of the Home Building Act 1989 must be issued subject to a condition that the work is carried out in accordance with the requirements of this clause.

(2)  Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the following information:

(a)  in the case of work for which a principal contractor is required to be appointed:

(i)  the name and licence number of the principal contractor, and

(ii)  the name of the insurer by which the work is insured under Part 6 of that Act,

(b)  in the case of work to be done by an owner-builder:

(i)  the name of the owner-builder, and

(ii)  if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.

(3)  If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the updated information.

(4)  This clause does not apply in relation to Crown building work that is certified, in accordance with section 109R of the Act, to comply with the technical provisions of the State’s building laws.

136D   Fulfilment of BASIX commitments

(1)  This clause applies to the following development:

(a)  BASIX affected development,

(b)  any BASIX optional development in relation to which a person has made an application for a complying development certificate that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 4A of Schedule 1 for it to be so accompanied).

(2)  A complying development certificate for development to which this clause applies must be issued subject to a condition that the commitments listed in each relevant BASIX certificate for the development must be fulfilled.

136E   Development involving bonded asbestos material and friable asbestos material

(1)  A complying development certificate for development that involves building work or demolition work must be issued subject to the following conditions:

(a)  work involving bonded asbestos removal work (of an area of more than 10 square metres) or friable asbestos removal work must be undertaken by a person who carries on a business of such removal work in accordance with a licence under clause 318 of the Occupational Health and Safety Regulation 2001,

(b)  the person having the benefit of the complying development certificate must provide the principal certifying authority with a copy of a signed contract with such a person before any development pursuant to the complying development certificate commences,

(c)  any such contract must indicate whether any bonded asbestos material or friable asbestos material will be removed, and if so, must specify the landfill site (that may lawfully receive asbestos) to which the bonded asbestos material or friable asbestos material is to be delivered.

(2)  This clause applies only to a complying development certificate issued after the commencement of this clause.

(3)  In this clause, bonded asbestos material, bonded asbestos removal work, friable asbestos material and friable asbestos removal work have the same meanings as in clause 317 of the Occupational Health and Safety Regulation 2001.

Note 1. Under clause 317 removal work refers to work in which the bonded asbestos material or friable asbestos material is removed, repaired or disturbed.

Note 2. The effect of subclause (1) (a) is that the development will be a workplace to which the Occupational Health and Safety Regulation 2001 applies while removal work involving bonded asbestos material or friable asbestos material is being undertaken.

Note 3. Information on the removal and disposal of asbestos to landfill sites licensed to accept this waste is available from the Department of Environment, Climate Change and Water.

Note 4. Demolition undertaken in relation to complying development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 must be carried out in accordance with Australian Standard AS 2601—2001, Demolition of structures.

136F, 136G   (Repealed)

136H   Condition relating to shoring and adequacy of adjoining property

(1)  A complying development certificate for development must be issued subject to a condition that if the development involves an excavation that extends below the level of the base of the footings of a building on adjoining land, the person having the benefit of the certificate must at the person’s own expense:

(a)  protect and support the adjoining premises from possible damage from the excavation, and

(b)  where necessary, underpin the adjoining premises to prevent any such damage.

(2)  The condition referred to in subclause (1) does not apply if the person having the benefit of the complying development certificate owns the adjoining land or the owner of the adjoining land has given consent in writing to that condition not applying.

Division 3 Validity of complying development certificates

137   What are the public notification procedures for the purposes of section 101 of the Act?

(cf clause 77B of EP&A Regulation 1994)

(1)  The determination of an application for a complying development certificate is publicly notified for the purposes of section 101 of the Act:

(a)  if public notice in a local newspaper is given by the council or an accredited certifier, and

(b)  if the notice describes the land and the development the subject of the complying development certificate, and

(c)  if the notice contains a statement that the determination of the application for a complying development certificate is available for public inspection, free of charge, during ordinary office hours at the council’s offices.

(2)  If the public notification is given by an accredited certifier, the accredited certifier must send a copy of the page of the newspaper in which notice of the complying certificate was published to the council within 7 days after the notice is published.

(3)  Nothing in this clause confers a right or entitlement to inspect, make copies of or take extracts from so much of a document that, because of section 12 (1A) of the Local Government Act 1993, a person does not have the right to inspect.

Part 8 Certification of development

Division 1 Compliance certificates

138   Compliance certificate

(cf clause 79 of EP&A Regulation 1994)

(1)  A compliance certificate must contain the following:

(a)  the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,

(b)  if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate,

(b1)  if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,

(b2)  if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate,

(c)  a description of the development being carried out,

(d)  the registered number and date of issue of any relevant development consent or complying development certificate,

(e)  the address, and formal particulars of title, of the land on which the development is being carried out,

(f)  the date of the certificate,

(g)  a description of any work that has been inspected, how the work has been inspected and the date and time when the work was inspected,

(h)  a statement as to the matters in respect of which the certificate is given.

Note. Section 109C of the Act identifies the various matters in respect of which a compliance certificate may be given.

(2)  A compliance certificate must be accompanied by any documents referred to in the certificate, being documents concerning matters in respect of which the certificate is given.

(3)  A copy of each compliance certificate relied on in issuing an occupation certificate must be forwarded to the consent authority and the council when a certifying authority notifies them of the issue of an occupation certificate.

Division 2 Construction certificates

139   Applications for construction certificates

(cf clause 79A of EP&A Regulation 1994)

(1)  An application for a construction certificate:

(a)  must contain the information, and be accompanied by the documents, specified in Part 3 of Schedule 1, and

(b)  if the certifying authority so requires, must be in the form approved by that authority, and

(c)  must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.

(1A)  The application may only be made by a person who is eligible to appoint a principal certifying authority for the relevant development.

(2)  Immediately after it receives an application for a construction certificate, the certifying authority must endorse the application with the date of its receipt.

139A   Withdrawal of application for construction certificate

(1)  An application for a construction certificate may be withdrawn at any time prior to its determination by service on the certifying authority to which it was made of a notice to that effect signed by the applicant.

(2)  The certifying authority may (but is not required to) refund to the applicant the whole or any part of the application fee paid in connection with an application that has been withdrawn.

140   Certifying authority may require additional information

(cf clause 79B of EP&A Regulation 1994)

(1)  A certifying authority may require the applicant for a construction certificate to give the certifying authority any additional information concerning the proposed building or subdivision work that is essential to the certifying authority’s proper consideration of the application.

(2)  Nothing in this clause affects the certifying authority’s duty to determine an application for a construction certificate.

141   Certifying authority to supply application form for construction certificates

(cf clause 79C of EP&A Regulation 1994)

If a certifying authority requires an application for a construction certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.

142   Procedure for determining application for construction certificate

(cf clause 79D of EP&A Regulation 1994)

(1)  The determination of an application for a construction certificate must be in writing and must contain the following information:

(a)  the date on which the application was determined,

(b)  whether the application has been determined:

(i)  by approval, or

(ii)  by refusal, and

(c)  if the application has been determined by refusal:

(i)  the reasons for the refusal, and

(ii)  if the certifying authority is a consent authority, of the applicant’s right of appeal under the Act against the refusal,

(d)  if a construction certificate has been issued subject to conditions of the kind referred to in clause 187 or 188:

(i)  the reasons for the conditions, and

(ii)  if the certifying authority is a consent authority, of the applicant’s right of appeal under the Act against any such conditions.

(2)  The certifying authority must cause notice of its determination to be given to the consent authority, and to the council, by forwarding to it, within 2 days after the date of the determination, copies of:

(a)  the determination, together with the application to which it relates, and

(b)  any construction certificate issued as a result of the determination, and

(c)  any plans and specifications in relation to which such a construction certificate has been issued, and

(d)  any fire safety schedule or fire link conversion schedule attached to such a construction certificate, and

(e)  any other documents that were lodged with the application for the certificate (such as any relevant decision on an objection under clause 187 or 188) or given to the certifying authority under clause 140, and

(f)  the record of any inspection made for the purposes of clause 143B in relation to the issue of the construction certificate.

Note. See also clause 168 which requires a fire safety schedule to be attached to a construction certificate when it is issued.

(2A)  A copy of a record of inspection referred to in subclause (2) (f) need not be given to a consent authority or council that carried out the inspection.

(3)  In this Part, a reference to the issuing of a construction certificate includes a reference to the endorsement of the construction certificate on any relevant plans and specifications, as referred to in section 109C (1) (b) of the Act.

143   Fire protection and structural capacity

(cf clause 79E of EP&A Regulation 1994)

(1)  A certifying authority must not issue a construction certificate for building work under a development consent that authorises a change of building use unless:

(a)  the fire protection and structural capacity of the building will be appropriate to its new use, and

(b)  the building will comply with such of the Category 1 fire safety provisions as are applicable to the new use,

      assuming that the building work is carried out in accordance with the plans and specifications to which the construction certificate relates and any conditions to which the construction certificate is subject.

(2)  Subclause (1) (b) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4).

(3)  In the case of building work that involves the alteration, enlargement or extension of an existing building in circumstances in which no change of building use is proposed, a certifying authority must not issue a construction certificate for the work unless, on completion of the building work, the fire protection and structural capacity of the building will not be reduced, assuming that the building work is carried out in accordance with the plans and specifications to which the construction certificate relates and any conditions to which the construction certificate is subject.

(4)  This clause does not apply to building work required by a consent authority as a condition of a development consent that authorises a change of building use.

143A   Special requirements for construction certificates for residential flat development

(1)  This clause applies to residential flat development for which the development application was required to be accompanied by a design verification from a qualified designer under clause 50 (1A).

(2)  A certifying authority must not issue a construction certificate for residential flat development unless the certifying authority has received a design verification from a qualified designer, being a statement in which the qualified designer verifies that the plans and specifications achieve or improve the design quality of the development for which development consent was granted, having regard to the design quality principles set out in Part 2 of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development.

(3)  If the development application referred to in subclause (1) was also required to be accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in subclause (2) need not be verified to the extent to which they aim:

(a)  to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or

(b)  to improve the thermal performance of the building.

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.

143C   Record of site inspections

(1)  A council, consent authority or accredited certifier must make a record of each inspection carried out by the council, consent authority or accredited certifier for the purposes of clause 143B.

(2)  Any council, consent authority or accredited certifier who is required to make such a record but is not the certifying authority in relation to the issue of the construction certificate concerned must, within 2 days after the carrying out of the inspection, provide a copy of the record to the certifying authority.

(3)  The record must include the following:

(a)  the registered number of the relevant development application,

(b)  the address of the property at which the inspection was carried out,

(c)  the type of inspection,

(d)  the date on which the inspection was carried out,

(e)  if the inspection was carried out by a council, the name of the council and the identity and signature of the individual who carried out the inspection on behalf of the council,

(f)  if the inspection was carried out by an accredited certifier, the identity of the accredited certifier, including, in a case where the accredited certifier is an accredited body corporate, the identity of the individual who carried out the inspection on behalf of the body corporate,

(g)  if the inspection was carried out by an accredited certifier, the accreditation number of the accredited certifier, including, in a case where the accredited certifier is an accredited body corporate, the accreditation number of the individual who carried out the inspection on behalf of the body corporate,

(h)  details of the current fire safety measures in the existing building the subject of the inspection,

(i)  details as to whether or not the plans and specifications accompanying the application for the construction certificate adequately and accurately depict the condition of the existing building the subject of the inspection,

(j)  details as to whether or not any building or subdivision work authorised by the relevant development consent has commenced on the site.

144   Referral of certain plans and specifications to New South Wales Fire Brigades

(cf clause 79F of EP&A Regulation 1994)

(1)  This clause applies to:

(a)  a class 9a building that is proposed to have a total floor area of 2,000 square metres or more, or

(b)  a building (other than a class 9a building) that is proposed to have:

(i)  a fire compartment with a total floor area of more than 2,000 square metres, or

(ii)  a total floor area of more than 6,000 square metres,

      where:

(c)  the building is the subject of an application for erection, rebuilding, alteration, enlargement or extension, and

(d)  the plans and specifications for the erection, rebuilding, alteration, enlargement or extension provide for an alternative solution to meet the performance requirements contained in any one or more of the Category 2 fire safety provisions.

(2)  Within 7 days after receiving an application for a construction certificate for a building to which this clause applies, the certifying authority must forward to the Fire Commissioner:

(a)  a copy of the application, and

(b)  a copy of the plans and specifications for the building, and

(c)  details of the performance requirements that the alternative solution is intended to meet, and

(d)  details of the assessment methods to be used to establish compliance with those performance requirements,

      which may be delivered by hand, forwarded by post or transmitted electronically, but may not be sent by facsimile transmission.

(3)  The Fire Commissioner must furnish the certifying authority with an initial fire safety report for the building.

(4)  An initial fire safety report may recommend conditions to be imposed on the erection, rebuilding, alteration, enlargement or extension of the building to which the report relates.

(5)  The certifying authority must not issue a construction certificate for a building to which this clause applies unless:

(a)  it has received an initial fire safety report for the building and has taken the report into consideration, or

(b)  at least 23 days have elapsed since the plans and specifications were forwarded to the Fire Commissioner but no such report has been received by the certifying authority.

(6)  If the certifying authority does not adopt any recommendation in an initial fire safety report:

(a)  because the report had not been received when the construction certificate was issued, or

(b)  because the certifying authority does not agree with the recommendation,

      the certifying authority must cause written notice to be given to the Fire Commissioner of the fact that it has not adopted the recommendation and of the reasons why it has not adopted the recommendation.

(7)  If the certifying authority adopts any condition recommended by an initial fire safety report:

(a)  it must ensure that the terms of the recommended condition have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or

(b)  it must attach to the construction certificate a condition in the same terms as those of the recommended condition, in the case of a condition whose terms are not capable of being so included.

(8)  Compliance with the requirement that the terms of a recommended condition be included in the plans and specifications for building work is sufficiently complied with:

(a)  if the plans and specifications are redrawn so as to accord with those terms, or

(b)  if those terms are included by way of an annotation (whether by way of insertion, deletion or alteration) marked on the relevant part of those plans and specifications.

(9)  In this clause:

initial fire safety report means a written report specifying whether or not the Fire Commissioner is satisfied, on the basis of the documents referred to in subclause (2):

(a)  that the alternative solution will meet such of the performance requirements as it is intended to meet, and

(b)  that the fire hydrants in the proposed fire hydrant system will be accessible for use by New South Wales Fire Brigades, and

(c)  that the couplings in the system will be compatible with those of the fire appliances and equipment used by New South Wales Fire Brigades.

144A   Compliance certificate required for certain fire safety aspects of building work

(1)  A certifying authority must not issue a construction certificate for building work that involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement unless the certifying authority has obtained or been provided with either or both of the following issued by a fire safety engineer:

(a)  a compliance certificate referred to in section 109C (1) (a) (v) of the Act that certifies that the alternative solution complies with the relevant performance requirements of the Building Code of Australia,

(b)  a written report that includes a statement that the alternative solution complies with the relevant performance requirements of the Building Code of Australia.

(2)  Until 28 February 2011, this clause applies only to building work in respect of:

(a)  a class 9a building, as defined in the Building Code of Australia, that is proposed to have a total floor area of 2,000 square metres or more, and

(b)  any building (other than a class 9a building) that is proposed to have:

(i)  a fire compartment, as defined in the Building Code of Australia, with a total floor area of more than 2,000 square metres, or

(ii)  a total floor area of more than 6,000 square metres,

      that involves an alternative solution under the Building Code of Australia in respect of the requirements set out in EP1.4, EP2.1, EP2.2, DP4 and DP5 in Volume 1 of that Code.

(3)  From 1 March 2011, this clause applies to all building work that involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement.

(4)  A fire safety engineer may issue a written report under subclause (1) (b) in respect of an alternative solution prepared by the engineer.

145   Compliance with development consent and Building Code of Australia

(cf clause 79G of EP&A Regulation 1994)

(1)  A certifying authority must not issue a construction certificate for building work unless:

(a1)  the plans and specifications for the building include such matters as each relevant BASIX certificate requires, and

(a)  the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent, and

(b)  the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made).

(2)  A certifying authority must not issue a construction certificate for subdivision work unless the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent.

(3)  Subclause (1) (b) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4).

146   Compliance with conditions of development consent

(cf clause 79H of EP&A Regulation 1994)

A certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless each of the following have been complied with:

(a)  each condition or agreement requiring the provision of security before work is carried out in accordance with the consent (as referred to in section 80A (6) of the Act),

(b)  each condition requiring the payment of a monetary contribution or levy before work is carried out in accordance with the consent (as referred to in section 94 or 94A of the Act),

(c)  each other condition of the development consent that must be complied with before a construction certificate may be issued in relation to the building work or subdivision work.

147   Form of construction certificate

(cf clause 79I of EP&A Regulation 1994)

(1)  A construction certificate must contain the following:

(a)  the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,

(b)  if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate,

(b1)  if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,

(b2)  if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate,

(c)  the registered number and date of issue of any relevant development consent,

(d)  the date of the certificate,

(e)  a statement to the effect that work completed in accordance with documentation accompanying the application for the certificate (with such modifications verified by the certifying authority as may be shown on that documentation) will comply with the requirements of this Regulation as are referred to in section 81A (5) of the Act,

(f)  the classification (in accordance with the Building Code of Australia) of the building to which the certificate relates.

(1A)  A construction certificate may indicate different classifications for different parts of the same building.

(2)  A construction certificate for a building must be accompanied by a fire safety schedule for the building.

(3)  Subclause (2) does not apply to:

(a)  a class 1a or class 10 building within the meaning of clause 167, or

(b)  a construction certificate that relates only to fire link conversion.

Note. The documents that must be issued with and accompany a construction certificate that relates only to fire link conversion are set out in clause 168A.

148   Modification of construction certificate

(cf clause 79IA of EP&A Regulation 1994)

(1)  A person who has made an application for a construction certificate and a person having the benefit of a construction certificate may apply to modify the development the subject of the application or certificate.

(2)  This Division applies to an application to modify development in the same way as it applies to the original application.

(3)  As soon as practicable after granting an application to modify development in respect of which an application for a construction certificate has previously been referred to the Fire Commissioner under clause 144, but for which (in its modified form) an application for a construction certificate for a building would no longer be required to be so referred, a certifying authority must notify the Fire Commissioner that the building to which the construction certificate relates is no longer a building to which clause 144 applies.

Division 3 Occupation certificates

149   Applications for occupation certificates

(cf clause 79J of EP&A Regulation 1994)

(1)  An application for an occupation certificate must contain the following information:

(a)  the name and address of the applicant,

(b)  a description of the building to which the application relates, including the existing and new classifications of the building under the Building Code of Australia, as identified by the development consent,

(c)  the address, and formal particulars of title, of the land on which the building to which the application relates is situated,

(d)  the type of occupation certificate applied for (that is, interim or final),

(e)  a list of the documents accompanying the application,

      and, if the certifying authority so requires, must be in the form approved by that authority.

(2)  The application must be accompanied by the following documents:

(a)  a copy of the relevant development consent or complying development certificate,

(b)  a copy of any relevant construction certificate,

(c)  a copy of any relevant fire safety certificate,

(d)  a copy of any relevant compliance certificate.

(2A)  In the case of an application with respect to development the subject of a condition requiring commitments listed in a BASIX certificate or in BASIX certificates to be fulfilled, the application must also be accompanied by a copy of each relevant BASIX certificate for the development.

(2B)  The application may only be made by a person who is eligible to appoint a principal certifying authority for the relevant development.

(3)  The application must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.

(4)  Immediately after it receives an application for an occupation certificate, the certifying authority must endorse the application with the date of its receipt.

150   Certifying authorities to supply application form for occupation certificates

(cf clause 79K of EP&A Regulation 1994)

If a certifying authority requires an application for an occupation certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.

151   Procedure for determining application for occupation certificate

(cf clause 79L of EP&A Regulation 1994)

(1)  The determination of an application for an occupation certificate must be in writing and must contain the following information:

(a)  the date on which the application was determined, and

(b)  whether the application has been determined:

(i)  by approval, or

(ii)  by refusal, and

(c)  if the application has been determined by refusal:

(i)  the reasons for the refusal, and

(ii)  if the certifying authority is a consent authority and the application relates to a final occupation certificate, of the applicant’s right of appeal under the Act against the refusal.

(2)  The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 2 days after the date of the determination:

(a)  a copy of the determination,

(b)  copies of any documents that were lodged with the application for the certificate,

(c)  if an occupation certificate was issued, a copy of the certificate,

(d)  a copy of the record required to be made of each of the following:

(i)  all critical stage inspections and any other inspections carried out because they were required by the principal certifying authority under section 109E (3) (d) of the Act,

(ii)  any inspection carried out under clause 162A (4A) (a),

(iii)  any missed inspection to which clause 162C applies,

(e)  a copy of any compliance certificate and of any other documentary evidence, whether or not of a kind referred to in Part A2, clause A2.2, of the Building Code of Australia, relied on in issuing the occupation certificate.

152   Reports of Fire Commissioner: section 109H

(cf clause 79M of EP&A Regulation 1994)

(1)  This clause applies to a building to which clause 144 applies.

(2)  Unless it has already refused such an application, a certifying authority must request the Fire Commissioner to furnish it with a final fire safety report for a building as soon as practicable after receiving an application for an occupation certificate for the building.

(3)  If it refuses the application after making such a request but before receiving a final fire safety report, the certifying authority must cause notice of the refusal to be given to the Fire Commissioner.

(4)  Unless it has received a notice referred to in subclause (3), the Fire Commissioner must furnish the certifying authority with a final fire safety report for the building within 7 days after receiving a request for the report.

(5)  The certifying authority must not issue an occupation certificate for the building unless it has taken into consideration any final fire safety report for the building that has been furnished to it within the 7-day period.

(6)  In this clause:

final fire safety report for a building means a written report specifying whether or not the Fire Commissioner is satisfied:

(a)  that the building complies with the Category 2 fire safety provisions, and

(b)  that the fire hydrants in the fire hydrant system will be accessible for use by New South Wales Fire Brigades, and

(c)  that the couplings in the fire hydrant system will be compatible with those of the fire appliances and equipment used by New South Wales Fire Brigades.

153   Fire safety certificates: section 109H

(cf clause 79N of EP&A Regulation 1994)

(1)  For the purposes of section 109H (5) (d) and (6) (c) of the Act, a final occupation certificate authorising a person:

(a)  to commence occupation or use of a new building, or

(b)  to commence a change of use for an existing building,

      must not be issued unless a final fire safety certificate has been issued for the building.

(1A)  If the need for the final occupation certificate arises solely from fire link conversion, the final fire safety certificate referred to in subclause (1) need only deal with the new fire alarm communication link.

(2)  For the purposes of section 109H (3) (d) and (4) (c) of the Act, an interim occupation certificate authorising a person:

(a)  to commence occupation or use of a partially completed new building, or

(b)  to commence a change of use for part of an existing building,

      must not be issued unless a final fire safety certificate or an interim fire safety certificate has been issued for the relevant part of the building.

(3)  This clause does not apply to a class 1a or class 10 building within the meaning of clause 167 or to a temporary structure.

(4)  In this clause:

interim fire safety certificate has the same meaning as it has in Part 9.

final fire safety certificate has the same meaning as it has in Part 9.

new building has the same meaning as it has in section 109H of the Act.

153A   Compliance certificate required for certain fire safety aspects of building work

(1)  A certifying authority must not issue an occupation certificate for a building in respect of which a compliance certificate or report is required under clause 130 (2A) or 144A (1) (the first certificate or report) unless the certifying authority has obtained or been provided with either or both of the following issued by a fire safety engineer:

(a)  a compliance certificate referred to in section 109C (1) (a) (i) of the Act that certifies that the building work relating to the alternative solution that was the subject of the first certificate or report has been completed and complies with that alternative solution,

(b)  a written report that includes a statement that the building work relating to the alternative solution that was the subject of the first certificate or report has been completed and is consistent with that alternative solution.

(2)  A fire safety engineer may issue a written report under subclause (1) (b), even if the engineer also issued a report under clause 130 (2A) (b) or 144A (1) (b) in respect of the work.

154   Health, safety and other issues: section 109H

(cf clause 79O of EP&A Regulation 1994)

(1)  For the purposes of section 109H (3) (d) and (4) (c) of the Act, an interim occupation certificate authorising a person:

(a)  to commence occupation or use of a partially completed new building, or

(b)  to commence a change of building for use for part of an existing building,

      must not be issued unless the building will not constitute a hazard to the health or safety of the occupants of the building.

(1A)  For the purposes of section 109H (5) (d) of the Act, a final occupation certificate authorising a person to commence occupation or use of a temporary structure as an entertainment venue must not be issued unless:

(a)  the certifying authority has inspected the temporary structure, and

(b)  the temporary structure is suitable for its proposed use as an entertainment venue, including for the number of persons proposed to occupy or use the temporary structure.

(2)  In this clause:

new building has the same meaning as it has in section 109H of the Act.

154A   Special requirements for occupation certificates for residential flat development

(1)  This clause applies to residential flat development for which the development application was required to be accompanied by a design verification from a qualified designer under clause 50 (1A).

(2)  A certifying authority must not issue an occupation certificate to authorise a person to commence occupation or use of residential flat development unless the certifying authority has received a design verification from a qualified designer, being a statement in which the qualified designer verifies that the residential flat development achieves the design quality of the development as shown in the plans and specifications in respect of which the construction certificate was issued, having regard to the design quality principles set out in Part 2 of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development.

(3)  If the development application referred to in subclause (1) was also required to be accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in subclause (2) need not be verified to the extent to which they aim:

(a)  to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or

(b)  to improve the thermal performance of the building.

154B   Fulfilment of BASIX commitments

(1)  This clause applies to BASIX affected development in respect of which, and BASIX optional development in respect of which, a relevant BASIX certificate requires a certifying authority to monitor fulfilment of any of the commitments listed in the certificate.

(2)  A certifying authority must not issue an occupation certificate (whether interim or final) for any building resulting from, or any building that becomes a BASIX affected building because of, BASIX affected development or BASIX optional development to which this clause applies, or for any part of such a building, unless each of the commitments whose fulfilment it is required to monitor in relation to the building or part has been fulfilled.

(3)  For the purpose of satisfying itself as to the fulfilment of any such commitment, a certifying authority may rely on the advice of any properly qualified person.

154C   BASIX completion receipt

(1A)  This clause applies:

(a)  from 1 October 2006 until 30 June 2007 (inclusive) to:

(i)  the erection of a BASIX affected building that is BASIX affected development, or

(ii)  a change of building use by which a building becomes a BASIX affected building, and

(b)  on and from 1 July 2007, to BASIX affected development in respect of which a relevant BASIX certificate or relevant BASIX certificates requires a certifying authority to monitor fulfilment of any of the commitments listed in the certificate.

(1)  Within 2 days after issuing a final occupation certificate for a building the subject of development to which this clause applies, or for part of such a building, the certifying authority must apply to the Director-General for a BASIX completion receipt with respect to that building or part.

(2)  An application for a BASIX completion receipt must be made in the manner notified in writing to certifying authorities by the Director-General and must contain the following information:

(a)  the number of each relevant BASIX certificate for the building or part of a building,

(b)  the postcode of the address of the building,

(c)  the date of issue of the final occupation certificate,

(d)  such other information (if any) as the Director-General may determine and is notified in writing to certifying authorities.

(3)  The Director-General may issue a BASIX completion receipt:

(a)  by means of a computerised system, as approved from time to time by the Director-General, being a system to which certifying authorities are given on-line access, whether over the internet or otherwise, or

(b)  by such other means as the Director-General may approve from time to time.

(4)  A BASIX completion receipt is to confirm that the information required to be provided by a certifying authority under this clause has been provided.

(5)  A BASIX completion receipt is to be in such form, and contain such other information, as the Director-General may approve from time to time.

155   Form of occupation certificate

(cf clause 79P of EP&A Regulation 1994)

(1)  An occupation certificate must contain the following:

(a)  the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,

(b)  if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate,

(b1)  if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,

(b2)  if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate,

(c)  the date of the certificate,

(d)  indicate the type of certificate being issued (that is, interim or final),

(e)  a statement to the effect that:

(i)  the health and safety of the occupants of the building have been taken into consideration where an interim occupation certificate is being issued, and

(ii)  a current development consent or complying development certificate is in force for the building, and

(iii)  if any building work has been carried out, a current construction certificate (or complying development certificate) has been issued with respect to the plans and specifications for the building, and

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

(v)  a fire safety certificate has been issued for the building, and

(vi)  a report from the Fire Commissioner has been considered (if required).

(2)  Except as provided by subclause (3) or (4), the certificate must be accompanied by a fire safety certificate and fire safety schedule for the building.

(3)  If the need for the occupation certificate arises solely from fire link conversion, the certificate need only be accompanied by a fire safety certificate of the kind referred to in section 153 (1A) and the relevant fire link conversion schedule or fire safety schedule issued under clause 168A.

(4)  If the building is a temporary structure, subclauses (1) (e) (v) and (2) do not apply.

Note. The only circumstance in which the occupation or use of a temporary structure requires an occupation certificate is when the temporary structure is to be used as an entertainment venue.

156   Occupation and use of new buildings: section 109M (2)

(cf clause 79Q of EP&A Regulation 1994)

(1)  For the purposes of section 109M (2) (c) of the Act, the following are prescribed circumstances:

(a)  the fact that a building is a class 1a or class 10 building for which a construction certificate or complying development certificate was issued before 1 March 2004 (being the date on which Schedule 2.1 [32] to the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003 commenced),

(b)  the fact that the building is a temporary structure (other than a temporary structure that is an entertainment venue).

(2)  A person who is prescribed for the purposes of section 88 (2) (a) of the Act in relation to Crown building work involving the erection of a new building is prescribed for the purposes of section 109M (2) (d) of the Act in relation to that building.

Note. Section 109M of the Act prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.

Section 109M (2) (c) provides for the disapplication of that section in circumstances prescribed by the regulations. Subclause (1) of this clause prescribes such circumstances.

Section 109M (2) (d) provides for the disapplication of that section in the case of buildings erected by or on behalf of the Crown or by or on behalf of prescribed persons. Subclause (2) of this clause prescribes such persons.

Division 4 Subdivision certificates

157   Applications for subdivision certificates

(cf clause 79R of EP&A Regulation 1994)

(1)  An application for a subdivision certificate must contain the following information:

(a)  the name and address of the applicant,

(b)  the address, and formal particulars of title, of the land to which the application relates,

(c)  if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the making of the application,

(d)  a list of the documents accompanying the application,

      and, if the certifying authority so requires, must be in the form approved by that authority.

(2)  The application must be accompanied by the following documents:

(a)  a plan of subdivision,

(b)  a copy of the relevant development consent or complying development certificate,

(c)  a copy of any relevant construction certificate,

(d)  a copy of detailed subdivision engineering plans,

(e)  for a deferred commencement consent, evidence that the applicant has satisfied the consent authority on all matters of which the consent authority must be satisfied before the consent can operate,

(f)  evidence that the applicant has complied with all conditions of consent that it is required to comply with before a subdivision certificate can be issued, where relevant,

(g)  a certificate of compliance from the relevant water supply authority, where relevant,

(h)  if a subdivision is the subject of an order of the Land and Environment Court under section 40 of the Land and Environment Court Act 1979, evidence that required drainage easements have been acquired by the relevant council,

(i)  for subdivision involving subdivision work, evidence that:

(i)  the work has been completed, or

(ii)  agreement has been reached with the relevant consent authority as to payment of the cost of the work and as to the time for carrying out the work, or

(iii)  agreement has been reached with the relevant consent authority as to security to be given to the consent authority with respect to the completion of the work.

Note. See section 109O of the Act and clause 161 which provide that a requirement for a consent authority to be satisfied as to certain matters may be met if a certifying authority is satisfied as to those matters.

(2A)  The application may only be made:

(a)  by the owner of the land to which the application relates, or

(b)  by any other person, with the consent in writing of the owner of that land.

(3)  The application must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.

(4)  The plan of subdivision to which the application relates must be accompanied by a certificate on the plan in the relevant form required by the regulations in force under the Surveying and Spatial Information Act 2002.

(5)  Immediately after it receives an application for a subdivision certificate, the certifying authority must endorse the application with the date of its receipt.

158   Certifying authority may require additional information

(cf clause 79S of EP&A Regulation 1994)

(1)  A certifying authority may require the applicant for a subdivision certificate to give the certifying authority any additional information concerning the proposed subdivision that is essential to the certifying authority’s proper consideration of the application.

(2)  Nothing in this clause affects the certifying authority’s duty to determine an application for a subdivision certificate.

159   Certifying authorities to supply application form for subdivision certificates

(cf clause 79T of EP&A Regulation 1994)

If a certifying authority requires an application for a subdivision certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.

160   Procedure for determining application for subdivision certificate

(cf clause 79U of EP&A Regulation 1994)

(1)  The determination of an application for a subdivision certificate must be in writing and must contain the following information:

(a)  the date on which the application was determined,

(b)  whether the application has been determined:

(i)  by approval, or

(ii)  by refusal,

(c)  if the application has been determined by refusal:

(i)  the reasons for the refusal, and

(ii)  if the certifying authority is a consent authority, of the applicant’s right of appeal under the Act against the refusal,

(d)  the identity of the certifying authority determining the application, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who dealt with the application on behalf of the body corporate,

(e)  if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who dealt with the application on behalf of the body corporate,

(f)  if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,

(g)  if an individual dealt with the application on behalf of the certifying authority, the signature of the individual who dealt with the application.

(2)  The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 2 days after the date of the determination:

(a)  a copy of the determination,

(b)  copies of any documents that were lodged with the application for the certificate,

(c)  if a subdivision certificate was issued, a copy of the endorsed plan of subdivision.

Note. The form of the subdivision certificate is regulated under the Conveyancing Act 1919.

160A   Prescribed persons: subdivision certificates

The following persons are prescribed for the purposes of section 109D (1) (d) (iii) of the Act:

(a)  Newcastle Port Corporation,

(b)  Port Kembla Port Corporation,

(c)  Sydney Ports Corporation,

(d)  Rail Corporation New South Wales,

(e)  Transport Infrastructure Development Corporation.

Division 5 General

161   Certifying authorities may be satisfied as to certain matters: section 109O

(cf clause 79V of EP&A Regulation 1994)

(1)  This clause applies to the following matters:

(a)  any matter that relates to the form or content of the plans and specifications for the following kind of work to be carried out in connection with the erection of a building or the subdivision of land:

(i)  earthwork,

(ii)  road work, including road pavement and road finishing,

(iii)  stormwater drainage work,

(iv)  landscaping work,

(v)  erosion and sedimentation control work,

(vi)  excavation work,

(vii)  mechanical work,

(viii)  structural work,

(ix)  hydraulic work,

(x)  work associated with driveways and parking bays, including road pavement and road finishing,

(b)  any matter that relates to the external finish of a building.

(2)  Any requirement of the conditions of a development consent that a consent authority or council is to be satisfied as to a matter to which this clause applies is taken to have been complied with if a certifying authority is satisfied as to that matter.

162   Notice of replacement of principal certifying authority

(1)  A principal certifying authority appointed to replace another principal certifying authority must ensure that notice of the appointment and of the approval of that appointment is given to the consent authority (and, if the consent authority is not the council, to the council) within 2 days after the appointment.

(2)  Nothing in this clause requires any notice to be given to a person who has agreed to, or been notified of, the proposed appointment under section 109EA of the Act.

(3)  Clause 103 applies to a notice given for the purposes of this clause in the same way as it applies to a notice given under or for the purposes of section 81A (2) (b1) (i) or (4) (b1) (i) of the Act.

(4)  In addition to the information required by subclause (3) to be included in a notice under this clause, the following information is to be included:

(a)  the name of the former principal certifying authority who has been replaced,

(b)  a statement that the former principal certifying authority agreed to be replaced.

162A   Critical stage inspections required by section 109E (3) (d)

(1)  For the purposes of section 109E (3) (d) of the Act, the occasions on which building work must be inspected are as set out in this clause.

Note. These inspections are the critical stage inspections.

(2)  Except as provided by subclause (3), the critical stage inspections may be carried out by the principal certifying authority or, if the principal certifying authority agrees, by another certifying authority.

(3)  The last critical stage inspection required to be carried out for the class of building concerned must be carried out by the principal certifying authority.

(4)  In the case of a class 1 or 10 building, the occasions on which building work for which a principal certifying authority is first appointed on or after 1 July 2004 must be inspected are:

(a)  (Repealed)

(b)  after excavation for, and prior to the placement of, any footings, and

(c)  prior to pouring any in-situ reinforced concrete building element, and

(d)  prior to covering of the framework for any floor, wall, roof or other building element, and

(e)  prior to covering waterproofing in any wet areas, and

(f)  prior to covering any stormwater drainage connections, and

(g)  after the building work has been completed and prior to any occupation certificate being issued in relation to the building.

(4A)  However, in the case of a class 1 or 10 building, an inspection on an occasion described in subclause (4) (a)–(f) that occurs before 1 July 2005 is not prescribed for the purposes of section 109E (3) (d) of the Act if:

(a)  the inspection is carried out by a person considered by the principal certifying authority to be suitably qualified to carry out the inspection (but who is not necessarily an accredited certifier) and employed, or nominated for the purpose of carrying out the inspection, by the principal certifying authority, and

(b)  the person would not be disqualified by section 109ZG of the Act (except by subsection (1) (d) or (1A) of that section) from issuing a Part 4A certificate in relation to any aspect of the development concerned.

(c)  the person makes a record of each inspection carried out by him or her, and provides a copy of that record to the principal certifying authority, as required by clause 162B for a critical stage inspection or any other inspection required by the principal certifying authority.

(5)  In the case of a class 2, 3 or 4 building, the occasions on which building work must be inspected are:

(a)  (Repealed)

(b)  prior to covering of waterproofing in any wet areas, for a minimum of 10% of rooms with wet areas within a building, and

(c)  prior to covering any stormwater drainage connections, and

(d)  after the building work has been completed and prior to any occupation certificate being issued in relation to the building.

(6)  In the case of a class 5, 6, 7, 8 or 9 building, the occasions on which building work for which a principal certifying authority is first appointed on or after 1 July 2004 must be inspected are:

(a)  (Repealed)

(b)  prior to covering any stormwater drainage connections, and

(c)  after the building work has been completed and prior to any occupation certificate being issued in relation to the building.

(7)  (Repealed)

(7A)  Inspections of building work must be made on the following occasions in addition to those required by the other provisions of this clause for the building work:

(a)  in the case of a swimming pool, as soon as practicable after the barrier (if one is required under the Swimming Pools Act 1992) has been erected,

(b)  in the case of a class 2, 3, 4, 5, 6, 7, 8 or 9 building, after the commencement of the excavation for, and before the placement of, the first footing.

(8)  This clause does not prescribe any occasion on which a manufactured home or dwelling built off the site in sections and transported to the site for assembly is required to be inspected.

162B   Record of inspections conducted under section 109E (3)

(1)  A principal certifying authority and each other certifying authority must make a record of each critical stage inspection and any other inspection carried out because it was required by the principal certifying authority under section 109E (3) (d) of the Act carried out by the principal certifying authority or other certifying authority.

(2)  Any certifying authority who is required to make such a record but is not the principal certifying authority for the work concerned must, within 2 days after the record is made, provide a copy of the record to the principal certifying authority for the work.

Note. Copies of these records must be kept for at least 15 years (see clause 205).

(3)  Each record of an inspection required by this clause must be made as soon as practicable after the inspection is carried out.

(4)  The record must include details of:

(a)  the registered number of the development application and of the construction certificate or complying development certificate, and

(b)  the address of the property at which the inspection was carried out, and

(c)  the type of inspection, and

(d)  the date on which it was carried out, and

(e)  the identity of the certifying authority by whom the inspection was carried out, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who carried out the inspection on behalf of the body corporate, and

(e1)  if the certifying authority by whom the inspection was carried out is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who carried out the inspection on behalf of the body corporate, and

(f)  whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out.

162C   Progress inspection unavoidably missed

(1)  If the circumstances described in subclause (2) apply:

(a)  an inspection, other than a final inspection, that would be prescribed for the purposes of section 109E (3) (d) of the Act in the absence of this clause, is not prescribed for the purposes of that paragraph, and

(b)  an inspection that is not prescribed for the purposes of that paragraph, but is required to be carried out by the principal certifying authority under that paragraph, need not be carried out.

(2)  The circumstances are:

(a)  the inspection was missed because of circumstances that the principal certifying authority considers were unavoidable, and

(b)  the principal certifying authority is satisfied that the work that would have been the subject of the missed inspection was satisfactory, and

(c)  the principal certifying authority, as soon as practicable after becoming aware of the circumstances that caused the inspection to be missed, makes a record in accordance with subclause (3).

(3)  The record of a missed inspection must include the following:

(a)  a description of the development to which the record relates and of the class of the building concerned,

(b)  the address and land title particulars (such as the Lot and DP numbers) of the property concerned,

(c)  the registered number of the development consent and the construction certificate or of the complying development certificate,

(d)  the name and accreditation number of the principal certifying authority,

(e)  the name, address and telephone number of the principal contractor or owner builder and, if that person is required to be the holder of a licence or permit, the number of that licence or permit,

(f)  particulars of the inspection that was missed and of the circumstances that the principal certifying authority considers were unavoidable that caused it to be missed,

(g)  a statement that the principal certifying authority is satisfied that the work that would have been the subject of the missed inspection was satisfactory,

(h)  the documentary evidence that was relied on to satisfy the principal certifying authority that the work that would have been the subject of the missed inspection was satisfactory, including (but not limited to) documentary evidence of a kind referred to in Part A2, clause A2.2, of the Building Code of Australia.

(4)  Within 2 days after a person who is not the principal certifying authority becomes aware that an inspection described in subclause (1) that was required to be carried out by him or her has been missed, he or she must inform the principal certifying authority of that fact and of the circumstances causing the inspection to be missed.

(5)  Within 2 days after becoming aware that an inspection, other than a final inspection, has been missed, the principal certifying authority:

(a)  must notify that fact to the person who appointed the principal certifying authority and in the case of work for which a principal contractor is required to be appointed, the principal contractor or, in the case of work being done by an owner builder, the owner builder, and

(b)  must send a copy of the record made under this clause to the person who appointed the principal certifying authority.

(6)  In this clause, final inspection means an inspection described in clause 162A (4) (g), (5) (d) or (6) (c).

163   Notice to allow inspections

To allow a principal certifying authority or another certifying authority time to carry out critical stage inspections or any other inspections required by the principal certifying authority, the principal contractor for a building site, or the owner-builder, must notify the principal certifying authority at least 48 hours before each required inspection needs to be carried out.

164   No need for duplicate notices

(cf clause 79Y of EP&A Regulation 1994)

Nothing in this Part requires a certifying authority to give a copy of a document to itself just because it is also a consent authority or council or to give more than one copy of a document to any other person just because that other person is both a consent authority and a council.

164A   BASIX certificates

(1)  The Director-General may issue certificates (BASIX certificates) in relation to the sustainability of any proposed BASIX affected development and any proposed BASIX optional development.

(2)  Without limiting subclause (1), a BASIX certificate may be issued by means of a computerised system, as approved from time to time by the Director-General, being a system to which members of the public are given on-line access, whether over the internet or otherwise.

(3)  The relevant application need only be accompanied by one BASIX certificate.

(3A)  Subclause (3) does not apply to development that involves the alteration, enlargement or extension of a BASIX affected building that contains more than one dwelling.

Note. See Schedule 1, clauses 2A, 4A and 6A which require separate certificates for each dwelling.

(4)  A BASIX certificate must contain the following:

(a)  a description of the proposed development, corresponding in all relevant respects with the description contained in:

(i)  the relevant application, and

(ii)  any relevant accompanying documents,

(b)  a detailed list of the commitments that the applicant has made as to the manner in which the development will be carried out (being commitments as to the measures, such as design and fit-out, that the applicant proposes to implement in order to promote the sustainability of the development),

(c)  a statement to the effect that the proposed development will meet the Government’s requirements for sustainability if the applicant’s commitments are fulfilled.

(4A)  In the case of a development that involves the erection of a building for both residential and non-residential purposes, or the change of use of a building to both residential and non-residential purposes, the description referred to in subclause (4) (a) need only include information concerning the part of the development that is intended to be used for residential purposes.

(5)  In this clause:

accompanying document means any document required to accompany an application pursuant to clause 2, 4 or 6 of Schedule 1.

application means:

(a)  a development application, application for a complying development certificate or application for a construction certificate, or

(b)  an application for modification of a development consent, complying development certificate or construction certificate.

sustainability, in relation to proposed development, means the capacity of the development:

(a)  to reduce consumption of mains-supplied potable water, and

(b)  to reduce emissions of greenhouse gases, and

(c)  to perform in a thermally efficient manner.

Part 9 Fire safety and matters concerning the Building Code of Australia

Division 1 Preliminary

165   Definitions

(cf clause 80 of EP&A Regulation 1994)

In this Part:

annual fire safety statement means a statement referred to in clause 175.

critical fire safety measure means a fire safety measure that is identified in a fire safety schedule or fire link conversion schedule as a critical fire safety measure, being a measure that is of such a nature, or is implemented in such an environment or in such circumstances, that the measure requires periodic assessment and certification at intervals of less than 12 months.

essential fire safety measure, in relation to a building, means a fire safety measure that is included:

(a)  in the fire safety schedule for the building, or

(b)  in the essential services (within the meaning of Ordinance No 70 under the Local Government Act 1919) attached to an approval or order referred to in Part 59 of that Ordinance, being an approval or order that was in force immediately before 1 July 1993, or

(c)  in the essential services (within the meaning of the Local Government (Approvals) Regulation 1993) attached to an approval referred to in clause 22 of that Regulation, being the latest such approval granted during the period from 1 July 1993 to 30 June 1997, or

(d)  in the essential services (within the meaning of the Local Government (Orders) Regulation 1993) attached to an order referred to in clause 6 (1) of that Regulation, being the latest such order given during the period from 1 July 1993 to 30 June 1997.

final fire safety certificate means a certificate referred to in clause 170.

fire exit, in relation to a building, means any exit to the building that has been provided in compliance with any requirement imposed by or under the Act or this Regulation or by or under any other law, whether or not that law is currently in force.

fire safety certificate means an interim fire safety certificate or a final fire safety certificate.

fire safety measure means any measure (including any item of equipment, form of construction or fire safety strategy) that is, or is proposed to be, implemented in a building to ensure the safety of persons using the building in the event of fire.

fire safety order means an order of the kind referred to in item 6 of the Table to section 121B of the Act and includes, if an order is subsequently made under section 121R of the Act, an order under that section.

fire safety statement means an annual fire safety statement or a supplementary fire safety statement.

fire-isolated, when used in connection with the words “stairway, passageway or ramp”, means a fire-isolated stairway, fire-isolated passageway or fire-isolated ramp, as the case may be, within the meaning of the Building Code of Australia.

interim fire safety certificate means a certificate referred to in clause 173.

statutory fire safety measure means a fire safety measure of a kind referred to in the Table to clause 166.

supplementary fire safety statement means a statement referred to in clause 178.

166   Statutory fire safety measures

(cf clause 80A of EP&A Regulation 1994)

The fire safety measures listed in the Table to this clause are statutory fire safety measures for the purposes of this Part.

Table

Access panels, doors and hoppers to fire-resisting shafts Automatic fail-safe devices Automatic fire detection and alarm systems Automatic fire suppression systems Emergency lifts Emergency lighting Emergency warning and intercommunication systems Exit signs Fire control centres and rooms Fire dampers Fire doors Fire hydrant systems Fire seals protecting openings in fire-resisting components of the building

Fire shutters Fire windows Hose reel systems Lightweight construction Mechanical air handling systems Perimeter vehicle access for emergency vehicles Portable fire extinguishers Safety curtains in proscenium openings Smoke alarms and heat alarms Smoke and heat vents Smoke dampers Smoke detectors and heat detectors Smoke doors Solid core doors Standby power systems Wall-wetting sprinkler and drencher systems Warning and operational signs

167   Application of Part

(cf clause 80B of EP&A Regulation 1994)

(1)  This Part applies to all buildings except as follows:

(a)  only Division 7A applies to class 1a and class 10 buildings,

(b)  only Division 8 applies to temporary structures.

(2)  In this clause, a reference to a class 1a or class 10 building:

(a)  in the case of the erection of a new building, is a reference to a building that will be a class 1a or class 10 building when completed, and

(b)  in the case of the rebuilding, alteration, enlargement or extension of an existing building, is a reference to an existing class 1a or class 10 building, and

(c)  in the case of the change of building use for a building, is a reference to a building that will be a class 1a or class 10 building as a result of the change of building use.

Division 2 Fire safety schedules

168   Fire safety schedules

(cf clause 80C of EP&A Regulation 1994)

(1)  When:

(a)  granting a development consent for a change of building use (other than a complying development certificate) in circumstances in which no building work is proposed by the applicant for the consent and no building work is required by the consent authority, or

(b)  issuing a complying development certificate for the erection of a building (other than a certificate that relates only to fire link conversion) or for a change of building use, or

(c)  issuing a construction certificate for proposed building work (other than a certificate that relates only to fire link conversion), or

(d)  giving a fire safety order in relation to building premises,

      the person doing so must issue a schedule (a fire safety schedule) specifying the fire safety measures (both current and proposed) that should be implemented in the building premises.

(2)  In the case of a fire safety order in respect of which a further order is made under section 121R of the Act, the fire safety schedule is to be issued when the further order is given.

(3)  A fire safety schedule:

(a)  must deal with the whole of the building, not merely the part of the building to which the development consent, complying development certificate, construction certificate or fire safety order relates, and

(b)  must include:

(i)  such of the fire safety measures currently implemented in the building premises, and

(ii)  such of the fire safety measures proposed or required to be implemented in the building premises,

      as are statutory fire safety measures, and

(c)  must distinguish between:

(i)  the fire safety measures currently implemented in the building premises, and

(ii)  the fire safety measures proposed or required to be implemented in the building premises, and

(d)  must identify each measure that is a critical fire safety measure and the intervals (being intervals of less than 12 months) at which supplementary fire safety statements must be given to the council in respect of each such measure, and

(e)  must specify the minimum standard of performance for each fire safety measure included in the schedule.

(4)  A copy of the fire safety schedule must be attached to (and is taken to form part of) the relevant development consent, complying development certificate, construction certificate or fire safety order and for the purposes of an appeal forms part of the development consent or construction certificate.

(5)  An earlier fire safety schedule is superseded by a later fire safety schedule, and ceases to have effect when the later fire safety schedule is issued.

168A   Conversion of fire alarm communication links

(1)  This clause applies to a complying development certificate or a construction certificate that relates only to fire link conversion.

(2)  A person issuing such a certificate must also issue:

(a)  if there is a current fire safety schedule for the building concerned, a schedule (a fire link conversion schedule) for the new fire alarm communication link, or

(b)  in any other case, a fire safety schedule dealing only with the new fire alarm communication link.

(3)  A fire link conversion schedule or fire safety schedule issued under this clause:

(a)  must specify the minimum standard of performance for the new fire alarm communication link, and

(b)  if the new fire alarm communication link is a critical fire safety measure, must identify the link as such and specify the intervals (being intervals of less than 12 months) at which supplementary fire safety statements must be given to the council.

(4)  If a fire link conversion schedule is issued, a copy of the schedule must be attached to the current fire safety schedule for the building concerned and the copy is taken, for the purposes of this Regulation, to form part of the fire safety schedule.

Note. This means that when the current fire safety schedule is updated, the updated fire safety schedule must incorporate not only the current fire safety schedule but also the fire link conversion schedule.

(5)  Clause 168 (4) applies to a fire link conversion schedule and a fire safety schedule issued under this clause.

Division 3 Fire safety orders

169   Fire safety schedules and fire safety certificates

(cf clause 80D of EP&A Regulation 1994)

(1)  As soon as practicable after making a fire safety order, a person must cause copies of the fire safety schedule required by clause 168 to be given to the council and to the Fire Commissioner.

(2)  A person to whom a fire safety order is given in relation to any building must, within the time specified in the order, cause copies of a final fire safety certificate for the building (being a certificate issued after the requirements of the order have been complied with) to be given to the person by whom the order was given (and, if that person was not the council, to the council).

Note. See also clause 172 which requires a copy of the ensuing fire safety certificate to be given to the Fire Commissioner.

Division 4 Fire safety certificates

170   What is a final fire safety certificate?

(cf clause 80E of EP&A Regulation 1994)

A final fire safety certificate is a certificate issued by or on behalf of the owner of a building to the effect that each essential fire safety measure specified in the current fire safety schedule for the building to which the certificate relates:

(a)  has been assessed by a properly qualified person, and

(b)  was found, when it was assessed, to be capable of performing to at least the standard required by the current fire safety schedule for the building for which the certificate is issued.

Note. A final fire safety certificate must be provided before a final occupation certificate can be issued for a building under clause 153 (1), and must also be provided if a fire safety order is made in relation to building premises.

Under clause 153 (1A), a final fire safety certificate that relates solely to a final occupation certificate for fire link conversion need only deal with the new fire alarm communication link and not with other essential fire safety measures.

171   Issue of final fire safety certificates

(1)  The assessment of essential fire safety measures must have been carried out within the period of 3 months prior to the date on which a final fire safety certificate is issued.

(2)  The choice of person to carry out an assessment is up to the owner of the building.

(3)  A person who carries out an assessment:

(a)  must inspect and verify the performance of each fire safety measure being assessed, and

(b)  must test the operation of each new item of equipment installed in the building premises that is included in the current fire safety schedule for the building.

(4)  A final fire safety certificate issued in relation to work that has been authorised or required by a development consent, construction certificate or fire safety order need not deal with any essential fire safety measure the subject of some other final fire safety certificate or fire safety statement issued within the previous 6 months, unless the person by whom the development consent, construction certificate or fire safety order is issued or given otherwise determines.

(5)  The person by whom the development consent, construction certificate or fire safety order is issued or given may make such a determination only if:

(a)  the person is of the opinion that the measure will be affected by the work, and

(b)  the person has specified in the fire safety schedule attached to the development consent, construction certificate or fire safety order that the final fire safety certificate issued in relation to the work must deal with that measure.

172   Final fire safety certificate to be given to Fire Commissioner and prominently displayed in building

(1)  As soon as practicable after a final fire safety certificate is issued, the owner of the building to which it relates:

(a)  must cause a copy of the certificate (together with a copy of the current fire safety schedule) to be given to the Fire Commissioner, and

(b)  must cause a further copy of the certificate (together with a copy of the current fire safety schedule) to be prominently displayed in the building.

(2)  Subclause (1) (b) ceases to apply to a final fire safety certificate only when every essential fire safety measure with which it deals has become the subject of a later fire safety certificate or fire safety statement.

173   What is an interim fire safety certificate?

(cf clause 80F of EP&A Regulation 1994)

(1)  An interim fire safety certificate is a certificate issued by the owner of a building to the effect that each essential fire safety measure specified in the current fire safety schedule for the part of the building to which the certificate relates:

(a)  has been assessed by a properly qualified person, and

(b)  was found, when it was assessed, to be capable of performing to at least the standard required by the current fire safety schedule for the building for which the certificate is issued.

(2)  The provisions of clause 171 and 172 apply to an interim fire safety certificate in the same way as they apply to a final fire safety certificate.

Note. An interim fire safety certificate (or a final fire safety certificate) must be provided before an interim occupation certificate can be issued for a building under clause 153 (2).

174   Form of fire safety certificates

(cf clause 80G of EP&A Regulation 1994)

(1)  A fire safety certificate for a building or part of a building must contain the following information:

(a)  the name and address of the owner of the building or part,

(b)  a description of the building or part (including its address),

(c)  a list identifying each essential fire safety measure in the building or part, together with the minimum standard of performance specified in the relevant fire safety schedule in relation to each such measure,

(d)  the date or dates on which the essential fire safety measures were assessed,

(e)  the type of certificate being issued (that is, final or interim),

(f)  a statement to the effect referred to in clause 170 (for a final certificate) or clause 173 (for an interim certificate),

(g)  the date on which the certificate is issued.

(2)  A fire safety certificate for a building or part of a building must be accompanied by a fire safety schedule for the building or part.

Division 5 Fire safety statements

175   What is an annual fire safety statement?

(cf clause 80GA of EP&A Regulation 1994)

An annual fire safety statement is a statement issued by or on behalf of the owner of a building to the effect that:

(a)  each essential fire safety measure specified in the statement has been assessed by a properly qualified person and was found, when it was assessed, to be capable of performing:

(i)  in the case of an essential fire safety measure applicable by virtue of a fire safety schedule, to a standard no less than that specified in the schedule, or

(ii)  in the case of an essential fire safety measure applicable otherwise than by virtue of a fire safety schedule, to a standard no less than that to which the measure was originally designed and implemented, and

(b)  the building has been inspected by a properly qualified person and was found, when it was inspected, to be in a condition that did not disclose any grounds for a prosecution under Division 7.

176   Issue of annual fire safety statements

(1)  The assessment and inspection of an essential fire safety measure or building must have been carried out within the period of 3 months prior to the date on which the annual fire safety statement is issued.

(2)  The choice of person to carry out an assessment or inspection is up to the owner of the building.

(3)  The person who carries out an assessment must inspect and verify the performance of each fire safety measure being assessed.

177   Annual fire safety statement to be given to council and Fire Commissioner and prominently displayed in building

(cf clause 80GB of EP&A Regulation 1994)

(1)  Each year, the owner of a building to which an essential fire safety measure is applicable must cause the council to be given an annual fire safety statement for the building.

(2)  An annual fire safety statement for a building:

(a)  must deal with each essential fire safety measure in the building premises, and

(b)  must be given:

(i)  within 12 months after the date on which an annual fire safety statement was previously given, or

(ii)  if a fire safety certificate has been issued within the previous 12 months, within 12 months after the fire safety certificate was issued,

      whichever is the later.

(2A)  Failure to give an annual fire safety statement to the council within the time prescribed by subclause (2) (b) constitutes a separate offence for each week beyond the expiry of that time for which the failure continues.

(3)  As soon as practicable after an annual fire safety statement is issued, the owner of the building to which it relates:

(a)  must cause a copy of the statement (together with a copy of the current fire safety schedule) to be given to the Fire Commissioner, and

(b)  must cause a further copy of the statement (together with a copy of the current fire safety schedule) to be prominently displayed in the building.

(4)  Subclause (3) (b) ceases to apply to an annual fire safety statement only when every essential fire safety measure with which it deals has become the subject of a later fire safety certificate or fire safety statement.

178   What is a supplementary fire safety statement?

(cf clause 80GC of EP&A Regulation 1994)

A supplementary fire safety statement is a statement issued by the owner of a building to the effect that each critical fire safety measure specified in the statement has been assessed by a properly qualified person and was found, when it was assessed, to be capable of performing to at least the standard required by the current fire safety schedule for the building for which the statement is issued.

179   Issue of supplementary fire safety statements

(1)  The assessment of a critical fire safety measure must have been carried out within the period of one month prior to the date on which the supplementary fire safety statement is issued.

(2)  The choice of person to carry out the assessment is up to the owner of the building.

(3)  The person who carries out the assessment must inspect and verify the performance of each fire safety measure being assessed.

180   Supplementary fire safety statement to be given to council and Fire Commissioner and prominently displayed in building

(cf clause 80GD of EP&A Regulation 1994)

(1)  The owner of building premises in which a critical fire safety measure is implemented must cause the council to be given periodic supplementary fire safety statements for that measure.

(2)  A supplementary fire safety statement for a critical fire safety measure must be given at such intervals (being intervals of less than 12 months) as is specified in respect of that measure in the current fire safety schedule for the building.

(2A)  Failure to give a supplementary fire safety statement to the council within the time required by the current fire safety schedule for the building constitutes a separate offence for each week beyond the expiry of that time for which the failure continues.

(3)  As soon as practicable after a supplementary fire safety statement is issued, the owner of the building to which it relates:

(a)  must cause a copy of the statement (together with a copy of the current fire safety schedule) to be given to the Fire Commissioner, and

(b)  must cause a further copy of the statement (together with a copy of the current fire safety schedule) to be prominently displayed in the building.

(4)  Subclause (3) (b) ceases to apply to a supplementary fire safety statement only when every critical fire safety measure with which it deals has become the subject of a later fire safety certificate or fire safety statement.

181   Form of fire safety statements

(cf clause 80GE of EP&A Regulation 1994)

(1)  A fire safety statement for a building or part of a building must contain the following information:

(a)  the name and address of the owner of the building or part,

(b)  a description of the building or part (including its address),

(c)  a list identifying:

(i)  each essential fire safety measure in the building or part (for an annual statement), or

(ii)  each critical fire safety measure in the building or part (for a supplementary statement),

      together with the minimum standard of performance specified in the relevant fire safety schedule in relation to each such measure,

(d)  the date or dates on which the essential fire safety measures were assessed,

(e)  the date on which the building or part was inspected,

(f)  the type of statement being issued (that is, annual or supplementary),

(g)  a statement to the effect referred to in clause 175 (for an annual statement) or clause 178 (for a supplementary statement),

(h)  the date on which the statement is issued.

(2)  A fire safety statement for a building or part of a building must be accompanied by a fire safety schedule for the building or part.

Division 6 Fire safety maintenance

182   Essential fire safety measures to be maintained

(cf clause 80GF of EP&A Regulation 1994)

(1)  The owner of a building to which an essential fire safety measure is applicable must not fail to maintain each essential fire safety measure in the building premises:

(a)  in the case of an essential fire safety measure applicable by virtue of a fire safety schedule, to a standard no less than that specified in the schedule, or

(b)  in the case of an essential fire safety measure applicable otherwise than by virtue of a fire safety schedule, to a standard no less than that to which the measure was originally designed and implemented.

(2)  As soon as practicable after receiving a request in that regard from the owner of a building to which an essential fire safety measure is applicable otherwise than by virtue of a fire safety schedule, the council must provide the owner with a schedule of the essential fire safety measures for the building premises.

Division 7 Miscellaneous fire safety offences

183   Fire safety notices

(cf clause 80GG of EP&A Regulation 1994)

(1)  If:

(a)  a building’s fire exit includes any fire-isolated stairway, passageway or ramp, and

(b)  a notice in the form at the end of this clause is not at all times displayed in a conspicuous position adjacent to a doorway providing access to, but not within, that stairway, passageway or ramp,

      the occupier of the part of the premises adjacent to the stairway, passageway or ramp is guilty of an offence.

Maximum penalty: 100 penalty units.

(2)  The words “OFFENCE RELATING TO FIRE EXITS” in the notice referred to in subclause (1) (b) must be in letters at least 8 millimetres high, and the remaining words must be in letters at least 2.5 millimetres high.

(3)  A notice in the form prescribed under the Local Government Act 1919 or the Local Government Act 1993 for the purposes of a provision corresponding to this clause is taken to comply with the requirements of this clause.

OFFENCE RELATING TO FIRE EXITS

It is an offence under the Environmental Planning and Assessment Act 1979: (a)  to place anything in or near this fire exit that may obstruct persons moving to and from the exit, or (b)  to interfere with or obstruct the operation of any fire doors, or (c)  to remove, damage or otherwise interfere with this notice.

184   Fire exits

(cf clause 80GH of EP&A Regulation 1994)

A person must not:

(a)  place anything that may impede the free passage of persons:

(i)  in a stairway, passageway or ramp serving as or forming part of a building’s fire exit, or

(ii)  in a path of travel leading to a building’s fire exit, or

(b)  interfere with, or cause obstruction or impediment to, the operation of any fire doors providing access to a stairway, passageway or ramp serving as or forming part of a building’s fire exit, or

(c)  remove, damage or otherwise interfere with a notice referred to in clause 183.

Maximum penalty: 100 penalty units.

185   Doors relating to fire exits

(cf clause 80GI of EP&A Regulation 1994)

A person must not:

(a)  without lawful excuse, interfere with, or cause obstruction or impediment to, the operation of any door that:

(i)  serves as or forms part of a building’s fire exit, or

(ii)  is situated in a path of travel leading to a building’s fire exit, or

(b)  without lawful excuse, obstruct any doorway that:

(i)  serves as or forms part of a building’s fire exit, or

(ii)  is situated in a path of travel leading to a building’s fire exit.

Maximum penalty: 100 penalty units.

186   Paths of travel to fire exits

(cf clause 80GJ of EP&A Regulation 1994)

The owner of a building:

(a)  must ensure that:

(i)  any stairway, passageway or ramp serving as or forming part of a building’s fire exit, and

(ii)  any path of travel leading to a building’s fire exit,

      is kept clear of anything that may impede the free passage of persons, and

(b)  must ensure that the operation of any door that:

(i)  serves as or forms part of a building’s fire exit, or

(ii)  is situated in a path of travel leading to a building’s fire exit,

      is not interfered with, or otherwise obstructed or impeded, except with lawful excuse, and

(c)  must ensure that any notice required by clause 183 to be displayed is so displayed.

Maximum penalty: 100 penalty units.

Division 7A Smoke Alarms

186A   Owners of existing buildings and dwellings must ensure smoke alarms are installed

(1)  Despite any other provision of this clause, this clause does not apply to any of the following:

(a)  those buildings or parts of a building in which smoke alarms or smoke detection and alarm systems are installed, or are required to be installed, in accordance with a requirement under the Act or any other Act or law (including an order or a condition of an approval),

Note. An example of a requirement under the Act is an order under section 121B of the Act requiring the installation of smoke alarms or smoke detection and alarm systems.

(b)  those buildings or parts of buildings occupied by a public authority, but only if the Minister responsible for the public authority has determined, by order published in the Gazette, that those buildings or parts of buildings are not to be subject to this clause,

(c)  buildings in which no person sleeps.

(2)  The owner of a class 1a building or relocatable home must ensure that the building or home is equipped with smoke alarms that are located, on or near the ceiling:

(a)  in any storey of the building or home containing bedrooms—in every corridor or hallway associated with a bedroom, and if there is no such corridor or hallway associated with a bedroom, between that part of the building or home containing the bedroom and the remainder of the building or home, and

(b)  in any other storey of the building not containing bedrooms.

(3)  The owner of a class 1b building must ensure that the building is equipped with smoke alarms that are located, on or near the ceiling:

(a)  in any storey of the building containing bedrooms:

(i)  in every bedroom, and

(ii)  in every corridor or hallway associated with a bedroom, and if there is no such corridor or hallway associated with a bedroom, between each part of the building containing the bedroom and the remainder of the building, and

(b)  in any other storey of the building not containing bedrooms.

(4)  The owner of a dwelling within a class 2 building or, that is a class 4 part of a building, must ensure that the dwelling is equipped with smoke alarms that are located, on or near the ceiling:

(a)  in any storey of the dwelling containing bedrooms—in every corridor or hallway associated with a bedroom, and if there is no such corridor or hallway associated with a bedroom, between each part of the dwelling containing the bedroom and the remainder of the dwelling, and

(b)  in any other storey of the dwelling not containing bedrooms.

(5)  The owner of a class 3 building must ensure that:

(a)  each sole-occupancy unit, in any storey of the unit containing bedrooms, is equipped with smoke alarms that are located, on or near the ceiling in every corridor or hallway associated with a bedroom, and if there is no such corridor or hallway associated with a bedroom, between each part of the unit containing the bedroom and the remainder of the unit, and

(b)  each sole-occupancy unit, in any storey of the unit not containing bedrooms, is equipped with smoke alarms that are located on or near the ceiling, and

(c)  if the building does not have a functioning sprinkler system, each habitable room not within a sole-occupancy room, each public corridor and any other internal public space is equipped with smoke alarms that are located in those places where AS 1670.1 requires smoke detectors to be located.

(6)  The owner of a class 9a building that is a health care building must ensure that each patient care area, each public corridor and any other internal public space associated with a patient care area, are equipped with smoke alarms that are located in those places where AS 1670.1 requires smoke detectors to be located.

(7)  Despite subclauses (2), (4) and (5), the owner of a dwelling or unit that consists substantially of a single room (containing sleeping facilities and other facilities) satisfies the requirements of subclauses (2), (4) and (5) (a) and (b) if he or she ensures that the dwelling or unit is equipped with a smoke alarm that is located on or near the ceiling between the sleeping facilities and the rest of the dwelling or unit.

(8)  An order under subclause (1) (b) may specify a particular building or part of a building or a class of buildings or parts of buildings.

(9)  In this clause:

approval means any consent, licence, permit, permission or authorisation that is required, under an Act or law, to be obtained before development may be carried out.

AS 1670.1 means AS 1670.1—2004, Fire detection, warning, control and intercom systems—System design, installation and commissioning—Part 1: Fire as in force from time to time.

class 1a building means, in relation to a building that forms part of a strata scheme, the lot containing a dwelling within the building.

health care building means a building (other than a clinic, day surgery, day procedure unit or medical centre) occupied by persons receiving full-time care or patients undergoing medical treatment, being persons of a kind who generally require physical assistance to evacuate the building in an emergency, and includes the following:

(a)  a nursing home,

(b)  a facility under the control of a public health organisation within the meaning of the Health Services Act 1997,

(c)  a private health facility licensed under the Private Health Facilities Act 2007.

nursing home means a facility at which a high level of residential care (within the meaning of the Aged Care Act 1997 of the Commonwealth) is provided.

order means an order made under the Act or any other Act or law.

patient care area has the same meaning as it has in the Building Code of Australia but does not include any bathroom, ensuite bathing area or toilet area.

relocatable home means:

(a)  a manufactured home, or

(b)  any other moveable dwelling (whether or not self-contained) that comprises one or more major sections, including any associated structure that forms part of the dwelling,

      but does not include a tent, caravan or campervan or any moveable dwelling that is capable of being registered under the Road Transport (Vehicle Registration) Act 1997.

sole-occupancy unit has the same meaning as it has in the Building Code of Australia.

186B   Specifications for smoke alarms

(1)  A smoke alarm installed under this Division is to be functioning and is to comply with the requirements of AS 3786.

(2)  Despite the requirements of AS 3786, a smoke alarm that is required under clause 186A to be installed in a class 1b, class 3 or class 9a building is to be powered:

(a)  from the mains electricity supply, or

(b)  by a non-removable battery with a minimum life expectancy of 10 years that is connected to the smoke alarm.

Note. AS 3786 permits smoke alarms to be powered by batteries or mains electricity supply. Smoke alarms in buildings that are relocatable homes or class 1a or class 2 buildings or class 4 parts of buildings will be able to use any of the power sources specified by AS 3786.

(3)  Despite any other provision of this Division, a heat alarm may be used in the place of a smoke alarm in any kitchen or other area where it is likely to be inappropriately activated.

(4)  In this clause:

AS 3786 means AS 3786—1993, Smoke alarms as in force from time to time.

(5)  A functioning smoke alarm installed in a class 1a or class 2 building, a relocatable home or a class 4 part of a building before the commencement of this clause is taken to comply with the requirements of this clause until such time as the alarm is removed or ceases to function.

186C   Persons must not remove or interfere with smoke alarms

(1)  A person must not, without reasonable excuse, remove or interfere with the operation of a smoke alarm or heat alarm that has been installed in a building in which persons sleep.

(2)  Without limiting subclause (1), a person does not commit an offence under this clause if the person removes or interferes with the operation of a smoke alarm or heat alarm to repair, maintain or replace the smoke alarm or heat alarm.

(3)  This clause applies to alarms installed before or after the commencement of this Division.

186D   No development consent or consent of owners corporation required to install smoke alarms

(1)  Development consent under Part 4 of the Act and the consent of an owners corporation is not required to install a smoke alarm or heat alarm.

(2)  Subclause (1) is subject to the condition that, in circumstances where the installation of a smoke alarm or heat alarm causes damage to any part of common property, the person who installs the alarm must repair the damage.

(3)  In this clause:

common property and owners corporation have the same meanings that they have in the Strata Schemes Management Act 1996.

186E   Smoke alarms and heat alarms in certain existing buildings taken to be essential fire services

(1)  This clause applies to a building for which a fire safety schedule is issued before the commencement of this clause.

(2)  A smoke alarm or heat alarm installed under this Division is taken to be an essential fire safety measure that is specified in the fire safety schedule for the building for the purposes of this Part (other than clauses 175 (a) (i) and 182 (1) (a)).

(3)  Clauses 175 (a) (ii) and 182 (1) (b) apply to a smoke alarm or heat alarm taken to be an essential fire safety measure under this clause.

186F   Transitional provisions relating to obligations under this Division

(1)  A legal obligation under clause 186A to install a smoke alarm does not arise until 6 months after the commencement of this Division.

(2)  A person is not liable for an offence under this Division (other than an offence under clause 186C) in respect of any act or omission that occurs within 6 months after the commencement of this Division.

(3)  However, subclause (2) does not apply to any failure to comply with the requirements of this Division that continues after 6 months after that commencement.

Division 8 Miscellaneous

187   Modification and supplementation of Building Code of Australia standards

(cf clause 80H of EP&A Regulation 1994)

(1)  This clause applies to development the subject of:

(a)  a development application or an application for a complying development certificate for the change of building use of an existing building where the application does not seek any alteration, enlargement or extension of the building, or

(a1)  (Repealed)

(a2)  a development application or an application for a complying development certificate for the use of a building as an entertainment venue, or

(a3)  (Repealed)

(b)  an application for a construction certificate for building work, other than building work associated with a change of building use referred to in paragraph (a).

(2)  The applicant in relation to development to which this clause applies may lodge with the consent authority or certifying authority an objection:

(a)  that the Building Code of Australia (as applied by or under clause 98 or 136A) does not make appropriate provision with respect to:

(i)  the building in relation to which the change of building use is sought, or

(ia)  the building proposed to be used as an entertainment venue, or

(ib)  (Repealed)

(ii)  the proposed building work, or

(b)  that compliance with any specified provision of the Building Code of Australia (as applied by or under clause 98 or 136A) is unreasonable or unnecessary in the particular circumstances of the case.

Note. This clause does not authorise the making of an objection to a condition imposed on a development consent otherwise than by operation of clause 98 or 136A. So if a consent authority requires the provision of specified fire safety equipment, an objection to that requirement cannot be made merely because the requirement happens to be the same as a requirement imposed by the Building Code of Australia. Nor can it be made if the consent authority requires the development to be carried out in accordance with the Building Code of Australia, as the requirement then arises not from the Building Code of Australia (as applied by clause 98 or 136A) but from the Building Code of Australia (as applied by the terms of the condition).

(3)  In the case of an objection with respect to a Category 3 fire safety provision (as applied by or under clause 98 or 136A), the objection:

(a)  must indicate that a similar objection has been made to the Fire Commissioner, and

(b)  must be accompanied by a copy of the Fire Commissioner’s determination of the objection.

(4)  An objection may not be made with respect to a Category 1 fire safety provision (as applied by or under clause 98 or 136A) by an applicant in relation to development the subject of an application referred to in subclause (1) (a) or (a2) if the application has already been determined by the granting of development consent.

(5)  The applicant must specify the grounds of the objection and (in the case of proposed building work) must furnish the consent authority or certifying authority with a copy of the plans and specifications for the building work.

(6)  If the consent authority or certifying authority is satisfied that the objection is well founded, it may do either or both of the following:

(a)  it may exempt the development, either conditionally or unconditionally, from any specified provision of the Building Code of Australia (as applied by or under clause 98 or 136A),

(b)  it may direct that specified requirements are to apply to the proposed building work.

(7)  A consent authority or certifying authority may not take action under this clause except with the concurrence of the Director-General.

(8)  The Director-General:

(a)  may give the consent authority or certifying authority notice that concurrence may be assumed, in relation to any particular class of objections, subject to such conditions as are specified in the notice, and

(b)  may amend any such notice by a further notice given to that consent authority or certifying authority.

(9)  Action taken in accordance with a notice referred to in subclause (8) is as valid as it would be if the consent authority or certifying authority had obtained the concurrence of the Director-General.

(10)  Concurrence is to be assumed if at least 40 days have passed since concurrence was sought and the Director-General has not, within that period, expressly refused concurrence.

(11)  Any exemption or direction given by the consent authority or certifying authority under this clause must be given subject to, and must not be inconsistent with, any conditions to which the concurrence of the Director-General is subject.

(12)  When granting development consent for development the subject of an application referred to in subclause (1) (a) or (a2), the consent authority must ensure that the terms of any condition referred to in subclause (6) (a) and any requirement referred to in subclause (6) (b):

(a)  have been included in the plans and specifications for the building work or temporary structure, in the case of a condition whose terms are capable of being so included, or

(b)  are included in the conditions attached to the development consent, in the case of a condition whose terms are not capable of being so included.

(13)  When issuing a construction certificate for building work the subject of an application referred to in subclause (1) (b), the certifying authority must ensure that the terms of any condition referred to in subclause (6) (a) and any requirement referred to in subclause (6) (b):

(a)  have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or

(b)  are included in the conditions attached to the certificate, in the case of a condition whose terms are not capable of being so included.

(14)  Compliance with the requirement that the terms of a condition be included in the plans and specifications for building work or a temporary structure is sufficiently complied with:

(a)  if the plans and specifications are redrawn so as to accord with those terms, or

(b)  if those terms are included by way of an annotation (whether by way of insertion, deletion or alteration) marked on the relevant part of those plans and specifications.

188   Exemption from fire safety standards

(cf clause 80I of EP&A Regulation 1994)

(1)  This clause applies to development the subject of:

(a)  a development application or an application for a complying development certificate for the change of building use of an existing building where the application does not seek any alteration, enlargement or extension of the building, or

(a1)  (Repealed)

(b)  an application for a construction certificate for building work, other than building work associated with a change of building use referred to in paragraph (a).

Note. This clause does not authorise the making of an objection to a condition imposed on a development consent otherwise than by operation of clause 98 or 136A. So if a consent authority requires the provision of specified fire safety equipment, an objection to that requirement cannot be made merely because the requirement happens to be the same as a requirement imposed by the Building Code of Australia. Nor can it be made if the consent authority requires the development to be carried out in accordance with the Building Code of Australia, as the requirement then arises not from the Building Code of Australia (as applied by clause 98 or 136A) but from the Building Code of Australia (as applied by the terms of the condition).

(2)  The applicant in relation to development to which this clause applies may lodge with the Fire Commissioner an objection that compliance with any specified Category 3 fire safety provision (as applied by clause 98 or 136A) is unreasonable or unnecessary in the particular circumstances of the case.

(3)  The applicant must specify the grounds of the objection and (in the case of proposed building work) must furnish the Fire Commissioner with a copy of the plans and specifications for the building work.

(4)  If the Fire Commissioner is satisfied that the objection is well founded, the Fire Commissioner may exempt the development, either conditionally or unconditionally, from any specified Category 3 fire safety provision (as applied by clause 98 or 136A).

(5)  When granting development consent for development the subject of an application referred to in subclause (1) (a), a consent authority must ensure that the terms of any condition referred to in subclause (4):

(a)  have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or

(b)  are included in the conditions attached to the development consent, in the case of a condition whose terms are not capable of being so included.

(6)  When issuing a construction certificate for building work the subject of an application referred to in subclause (1) (b), a certifying authority must ensure that the terms of any condition referred to in subclause (4):

(a)  have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or

(b)  are included in the conditions attached to the certificate, in the case of a condition whose terms are not capable of being so included.

(7)  Compliance with the requirement that the terms of a condition be included in the plans and specifications for building work is sufficiently complied with:

(a)  if the plans and specifications are redrawn so as to accord with those terms, or

(b)  if those terms are included by way of an annotation (whether by way of insertion, deletion or alteration) marked on the relevant part of those plans and specifications.

189   Prescribed matters for inspection by NSW Fire Brigades: section 118L (1) (b) of the Act

(cf clause 80J of EP&A Regulation 1994)

For the purposes of section 118L (1) (b) of the Act, the following provisions are prescribed:

(a)  such of the provisions of Division 2A of Part 6 of the Act as relate to compliance with a fire safety order,

(b)  such of the provisions of clauses 172 (1) (b), 177 (3) (b), 180 (3) (b) and 182 (2) as relate to the implementation, maintenance or certification of essential fire safety measures for building premises,

(c)  such of the provisions of Division 7 as relate to fire safety notices, fire exits, doors relating to fire exits and paths of travel to fire exits.

190   Offences relating to certain Crown property

(cf clause 80K of EP&A Regulation 1994)

No proceedings may be taken for an offence under this Part with respect to a building:

(a)  that is situated on a reserve within the meaning of Part 5 of the Crown Lands Act 1989, or

(b)  that is a School of Arts or Mechanics Institute,

except with the consent of the Minister given after consultation with the Minister administering the Crown Lands Act 1989.

Parts 10, 11

191–223(Repealed)

Part 12 Accreditation of building products and systems

224   Building products and systems certified under CodeMark scheme

(1)  For the purposes of sections 79C (4) and 85A (4) of the Act, a building product or system is accredited if and only if a certificate of conformity issued in accordance with the CodeMark scheme is in force with respect to the building product or system.

Note. This clause also applies in relation to accreditation for the purposes of the issue of construction certificates as provided by section 109F (2) of the Act.

(2)  In this clause, CodeMark scheme means the CodeMark scheme for the certification of building products and systems managed by the Australian Building Codes Board, in which the certification bodies are accredited and monitored by the Joint Accreditation System of Australia and New Zealand established on 30 October 1991.

225   Savings provisions

(1)  Any building product or system (however described) in respect of which a certificate of conformity under the ABCB scheme was issued before the commencement is taken to have been accredited in accordance with clause 224 as in force after the commencement, subject to the same limitations as to time as those to which the certificate of conformity is subject.

(2)  Any building product or system (however described):

(a)  that was the subject of an application for a certificate of conformity that was lodged under the ABCB scheme before the commencement but had not been determined at the commencement, and

(b)  in respect of which such a certificate of conformity is issued in accordance with that scheme after the commencement,

      is taken to have been accredited in accordance with clause 224 as in force after the commencement, subject to the same limitations as to time as those to which the certificate of conformity is subject.

(3)  In this clause:

ABCB scheme has the same meaning as in clause 224 as in force before the commencement.

commencement means the commencement of the Environmental Planning and Assessment Amendment (CodeMark) Regulation 2006.

Part 13 Development by the Crown

226   Prescribed persons: section 88

(cf clause 81MM of EP&A Regulation 1994)

(1)  The following persons are prescribed for the purposes of Division 4 of Part 4 of the Act (as referred to in section 88 (2) (a) of the Act):

(a)  a public authority (not being a council),

(b)  a public utility,

(c)  an Australian university within the meaning of the Higher Education Act 2001,

(d)  a TAFE establishment within the meaning of the Technical and Further Education Commission Act 1990.

(2)  The following persons are prescribed under section 88 (2) (a) of the Act (as modified by section 109R (1) of the Act) for the purposes of section 109R in relation to Crown building work for which development consent is required under Part 4 of the Act:

(a)  the Luna Park Reserve Trust,

(b)  the Sydney Light Rail Company (ACN 064 062 933),

(c)  the Pyrmont Light Rail Company Pty Ltd (ACN 065 183 913),

(d)  the Light Rail Construction Company Pty Ltd (ACN 067 246 897).

(3)  The following persons are prescribed under section 88 (2) (a) of the Act (as modified by section 109R (1) of the Act) for the purposes of section 109R in relation to Crown building work that constitutes an activity within the meaning of Part 5 of the Act:

(a)  a determining authority that is a proponent of the activity within the meaning of Part 5 of the Act,

(b)  a company SOC, within the meaning of the State Owned Corporations Act 1989, that is the subject of a certificate under section 37A of that Act in respect of that activity.

227   Technical provisions of the State’s building laws

(cf clause 81NN of EP&A Regulation 1994)

For the purposes of section 109R of the Act, all of the provisions of the Building Code of Australia are prescribed as technical provisions of the State’s building laws.

Part 13A Supplementary provisions for development requiring consent

227A   Signs on development sites

(1)  This clause applies if there is a person who is the principal certifying authority or the principal contractor for any building work, subdivision work or demolition work authorised to be carried out on a site by a development consent or complying development certificate.

(2)  Each such person must ensure that a rigid and durable sign showing the person’s identifying particulars so that they can be read easily by anyone in any public road or other public place adjacent to the site:

(a)  is erected in a prominent position on the site before the commencement of the work, and

(b)  is maintained on the site at all times while this clause applies until the work has been carried out.

Maximum penalty: 10 penalty units.

(3)  In this clause, the identifying particulars for a person means:

(a)  the name, address and telephone number of the person, and

(b)  in the case of a principal contractor, a telephone number on which the principal contractor may be contacted at any time for business purposes.

(4)  Nothing in this clause requires the erection of more than one sign on a site or prevents the use of an appropriate sign that has already been erected on a site.

(5)  This clause does not require a sign to be erected or maintained on a site before 1 July 2004.

Note. See clauses 98A and 136B which require such a sign on a site as a condition of development consent or complying development certificate.

Part 14 Environmental assessment under Part 5 of the Act

Division 1A Preliminary

227AA   Demolition of temporary structure not “activity”

Pursuant to paragraph (k) of the definition of activity in section 110 (1) of the Act, the demolition of a temporary structure is prescribed not to be such an activity for the purposes of that definition.

Division 1 Circumstances requiring an environmental impact statement

228   What factors must be taken into account concerning the impact of an activity on the environment?

(cf clause 82 of EP&A Regulation 1994)

(1)  For the purposes of Part 5 of the Act, the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment include:

(a)  for activities of a kind for which specific guidelines are in force under this clause, the factors referred to in those guidelines, or

(b)  for any other kind of activity:

(i)  the factors referred to in the general guidelines in force under this clause, or

(ii)  if no such guidelines are in force, the factors referred to subclause (2).

(2)  The factors referred to in subclause (1) (b) (ii) are as follows:

(a)  any environmental impact on a community,

(b)  any transformation of a locality,

(c)  any environmental impact on the ecosystems of the locality,

(d)  any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality,

(e)  any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations,

(f)  any impact on the habitat of protected fauna (within the meaning of the National Parks and Wildlife Act 1974),

(g)  any endangering of any species of animal, plant or other form of life, whether living on land, in water or in the air,

(h)  any long-term effects on the environment,

(i)  any degradation of the quality of the environment,

(j)  any risk to the safety of the environment,

(k)  any reduction in the range of beneficial uses of the environment,

(l)  any pollution of the environment,

(m)  any environmental problems associated with the disposal of waste,

(n)  any increased demands on resources (natural or otherwise) that are, or are likely to become, in short supply,

(o)  any cumulative environmental effect with other existing or likely future activities.

(3)  For the purposes of this clause, the Director-General may establish guidelines for the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment, in relation to activities generally or in relation to any particular kind of activity.

(4)  The Director-General may vary or revoke any guidelines in force under this clause.

Division 2 Environmental impact statements

229   What is the form for an environmental impact statement?

(cf clause 83 of EP&A Regulation 1994)

For the purposes of section 112 of the Act, the prescribed form for an environmental impact statement under that section is a form that contains the following information:

(a)  the name, address and professional qualifications of the person by whom the statement is prepared,

(b)  the name and address of the proponent of the activity to which the statement relates,

(c)  the address of the land on which the activity to which the statement relates is to be carried out,

(d)  a description of the activity to which the statement relates,

(e)  an assessment by the person by whom the statement is prepared of the environmental impact of the activity to which the statement relates, dealing with the matters referred to in clause 230,

(f)  a declaration by the person by whom the statement is prepared to the effect that:

(i)  the statement has been prepared in accordance with clauses 230 and 231, and

(ii)  the statement contains all available information that is relevant to the environmental assessment of the activity to which the statement relates, and

(iii)  that the information contained in the statement is neither false nor misleading.

230   What must an environmental impact statement contain?

(cf clause 84 of EP&A Regulation 1994)

(1)  The contents of an environmental impact statement must include:

(a)  for activities of a kind for which specific guidelines are in force under this clause, the matters referred to in those guidelines, or

(b)  for any other kind of activity:

(i)  the matters referred to in the general guidelines in force under this clause, or

(ii)  if no such guidelines are in force, the matters referred to in Schedule 2.

(2)  The Director-General:

(a)  may establish guidelines for the preparation of environmental impact statements, in relation to activities generally or in relation to any specific kind of activity, and

(b)  may vary or revoke any guidelines so established.

(3)  An environmental impact statement prepared in accordance with this clause before the date on which any of the following events occur:

(a)  the amendment of Schedule 2,

(b)  the establishment of new guidelines under this clause,

(c)  the variation or revocation of existing guidelines under this clause,

      is taken to have been prepared in accordance with this clause, for the purposes of any relevant notice under section 113 (1) of the Act given within 3 months after that date, as if the relevant event had not occurred.

231   Director-General may make requirements concerning preparation of environmental impact statements

(cf clause 85 of EP&A Regulation 1994)

(1)  For the purposes of section 112 of the Act, the prescribed manner in which an environmental impact statement under that section is to be prepared is as follows:

(a)  the proponent responsible for preparing the statement must consult with the Director-General, and have regard to the Director-General’s requirements concerning:

(i)  the form and content of the statement, and

(ii)  the availability of the statement for public comment,

(b)  for the purposes of the consultation, the proponent must give the Director-General written particulars of the location, nature and scale of the activity,

(c)  written notice of the Director-General’s requirements must be given to the proponent within 28 days after the consultations are completed or within such further time as is agreed between the Director-General and the proponent,

(d)  written notice of the Director-General’s requirements must also be given to the relevant determining authority at the same time as it is given to the proponent,

(e)  if the environmental impact statement is not exhibited within 2 years after the notice is given, the applicant must consult further with the Director-General in relation to the preparation of the statement.

(2)  For the purposes of subclause (1), any requirements outstanding under clause 85 of the Environmental Planning and Assessment Regulation 1994 immediately before 1 January 2001 are taken to have been notified on 1 January 2001.

(3)  The Director-General may waive the requirement for consultation under this clause in relation to any particular activity or any particular kind of activity.

232   Determining authority may require additional copies of environmental impact statement

(cf clause 86 of EP&A Regulation 1994)

The determining authority may require the proponent of an activity to give it as many additional copies of the environmental impact statement as are reasonably required for the purposes of the Act.

Division 3 Public participation

233   What is the form for a section 113 notice?

For the purposes of section 113 of the Act, the prescribed form in which a notice under that section is to be prepared is a form that, in addition to the matters required by section 113 (1) of the Act, includes the following matters:

(a)  the following heading in capital letters and bold type:

“ASSESSMENT OF ENVIRONMENTAL IMPACT OF (a title description of the proposed activity and its location)—PUBLIC EXHIBITION”

(b)  a brief description of the proposed activity and its locality,

(c)  the name of the proponent,

(d)  a statement of the places, dates and times for inspection of the environmental impact statement,

(e)  a statement that any person may, before the specified closing date, make written representations to the determining authority about the proposed activity.

234   In what manner must a section 113 notice be given?

(cf clause 87 of EP&A Regulation 1994)

(1)  For the purposes of section 113 of the Act, the prescribed manner in which a notice under that section is to be given in relation to an environmental impact statement is by causing notice of the places, dates and times where the statement may be inspected to be published on at least 2 separate occasions:

(a)  in a daily newspaper circulating generally throughout the State, and

(b)  in a local newspaper,

      so as to appear across 2 or 3 columns in the display section of those newspapers.

(2)  The period of 30 days referred to in section 113 (1) of the Act begins on:

(a)  the date on which the notice is first published in the daily newspaper circulating generally throughout the State, or

(b)  the date on which the notice is first published in the local newspaper,

      whichever is the later.

235   Where may an environmental impact statement be inspected?

(cf clause 88 of EP&A Regulation 1994)

In addition to the places referred to in section 113 (1) of the Act, a determining authority must make copies of the relevant environmental impact statement available for public inspection, on the same dates and during the same times, at the following places:

(a)  the principal office of the council in whose area the proposed activity is to be carried out,

(b)  (Repealed)

(c)  the Sydney office of The Environment Centre (NSW) Pty Ltd.

Division 4 Public access

236   Determining authority may sell copies of environmental impact statement to the public

(cf clause 89 of EP&A Regulation 1994)

(1)  Copies of an environmental impact statement may be sold by a determining authority to any member of the public for not more than $25 per copy.

(2)  A determining authority:

(a)  must pay the proceeds of sale to the proponent responsible for the preparation of the statement, and

(b)  must return to the proponent any unsold copies of the statement.

237   Documents adopted or referred to by environmental impact statement

(cf clause 90 of EP&A Regulation 1994)

(1)  Any document adopted or referred to by an environmental impact statement is taken to form part of the statement.

(2)  Nothing in this Part requires the proponent responsible for the preparation of an environmental impact statement to supply any person with a document that is publicly available.

Division 5 Public participation—modification of Minister’s approval where no environmental impact statement required

237A   Application

This Division applies in relation to the provisions of Division 4 of Part 5 of the Act, as in force immediately before their repeal, to the extent that those provisions continue to apply to an activity by the operation of a transitional provision made by or under the Act.

238   Particulars of proposed modification to be publicly exhibited

(cf clause 90A of EP&A Regulation 1994)

(1)  For the purposes of section 115BA (5) (b) of the Act, particulars of a proposed modification of an approved activity must be publicly exhibited in accordance with this Division.

(2)  In this Division, particulars of a proposed modification include a description of the modification to be made to the approved activity and the locality of the proposed modified activity.

239   Notice to be given of the public exhibition of the proposed modification

(cf clause 90B of EP&A Regulation 1994)

(1)  Notice of the period during which the particulars of the proposed modification may be inspected and the places and times for inspection:

(a)  must be published in a local newspaper circulating in the locality of the proposed modified activity, and

(b)  must be published in the newspaper on at least 2 separate occasions before the start of that inspection period, and

(c)  must appear in the display section of the newspaper.

(2)  The notice must include the following matters:

(a)  the following heading in capital letters and bold type:

“PROPOSED MODIFICATION TO (a title description of approved activity and its location)—PUBLIC EXHIBITION”

(b)  brief particulars of the proposed modification,

(c)  the name of the proponent,

(d)  a statement of the period during which the particulars of the proposed modification may be inspected and the places and times for inspection,

(e)  a statement that any person may, before the end of that inspection period, make written representations to the proponent about the proposed modification.

240   Where may the proposed modification be inspected?

(cf clause 90C of EP&A Regulation 1994)

The particulars of the proposed modification are to be available for inspection during the inspection period specified in the notice under clause 241:

(a)  at the principal office of the proponent and the Department, and

(b)  at the office of the proponent and the Department closest to the locality in which the proposed modified activity is to be carried out, and

(c)  at the principal office of the council for the area in which the proposed modified activity is to be carried out, and

(d)  at the Sydney office of the Environment Centre (New South Wales) Pty Ltd.

241   Period of exhibition of proposed modification

(cf clause 90D of EP&A Regulation 1994)

The particulars of the proposed modification are to be available for inspection for a period of at least 14 days beginning on the day following the second occasion on which the relevant notice is published under clause 239.

242   Representations on proposed modification

(cf clause 90E of EP&A Regulation 1994)

(1)  Any person may, during the inspection period specified in the notice under clause 239, inspect the particulars of the proposed modification and may, before the end of that inspection period, make written representations to the proponent about the proposed modification.

(2)  The proponent must include, in the request to the Minister for the modification of the relevant approval, a copy of any written representations made to the proponent in accordance with this clause.

Division 6 General

243   Report to be prepared for activities to which an environmental impact statement relates

(cf clause 91 of EP&A Regulation 1994)

(1)  A determining authority for an activity must prepare a report on any activity for which an environmental impact statement has been prepared.

(2)  The report must be prepared as soon as practicable after a decision is made by the determining authority to carry out or refrain from carrying out the activity or to approve or disapprove the carrying out of the activity.

(3)  The report must comment on, and have regard to, each of the following matters:

(a)  the environmental impact statement,

(b)  any representations duly made to it about the proposed activity,

(c)  the effects of the proposed activity on the environment,

(d)  the proponent’s proposals to mitigate any adverse effects of the activity on the environment,

(e)  the findings and recommendations of:

(i)  any report given to it by the Director-General under section 113 of the Act, and

(ii)  any advice given to it by the Minister under section 114 of the Act, and

(iii)  any review by the Planning Assessment Commission,

      with respect to the proposed activity.

(4)  The report must also give full particulars of the determining authority’s decision on the proposed activity and, if the authority has granted approval to the carrying out of the activity, any conditions or modifications imposed or required by the authority in connection with the carrying out of the activity.

(5)  The determining authority must make the report public as soon as practicable after it has been completed and must send a copy of the report to the council of each area that is, or would have been, affected by the activity.

(6)  The requirements of subclause (5):

(a)  are subject to any prohibition or restriction arising from a direction under clause 268U, but to the extent only of the prohibition or restriction, and

(b)  do not apply to an activity to which Division 4 of Part 5 of the Act applies.

244   Concurrence or consultation with Director-General of National Parks and Wildlife

(cf clause 91B of EP&A Regulation 1994)

For the purposes of section 112C (3) of the Act, the provisions of Division 2 of Part 6 of this Regulation apply (with such modifications as may be necessary) to and in respect of the granting of concurrence under section 112C of the Act in the same way as they apply to and in respect of the granting of concurrence under section 79B of the Act.

Division 7 Fisheries management

244A   Definitions

In this Division:

fisheries approval has the same meaning as in Division 5 of Part 5 of the Act.

Fisheries Minister has the same meaning as in Division 5 of Part 5 of the Act.

fishing activity has the same meaning as in the Fisheries Management Act 1994.

shark meshing means the placing of nets by the Fisheries Minister around beaches and other waters to protect the public from sharks.

244B   Fishing activities and shark meshing

(1)  For the purposes of the definition of activity in section 110 (1) of the Act, a fishing activity carried out pursuant to a fisheries approval that is issued or renewed before 31 August 2009 for a period of not more than 12 months is prescribed not to be such an activity.

(2)  For the purposes of the definition of activity in section 110 (1) of the Act, shark meshing carried out at any time before 31 August 2009 is prescribed not to be such an activity.

(3)  This clause does not apply to or in respect of aquaculture, within the meaning of the Fisheries Management Act 1994.

244C   (Repealed)

Division 8 Special provisions relating to Australian Rail Track Corporation Ltd

244D   Definitions

In this Division:

activities for the purposes of ARTC rail infrastructure facilities includes activities (within the meaning of Part 5 of the Act) for any one or more of the following purposes:

(a)  development for the purposes of the construction, maintenance or operation of ARTC rail infrastructure facilities,

(b)  geotechnical investigations relating to ARTC rail infrastructure facilities,

(c)  environmental management and pollution control relating to ARTC rail infrastructure facilities,

(d)  access for the purpose of the construction, maintenance or operation of ARTC rail infrastructure facilities,

(e)  temporary construction sites and storage areas, including temporary batching plants, the storage of plant and equipment and the stockpiling of excavated material.

approved Code means a Code prepared by ARTC and approved by the Minister under this Division.

ARTC means the Australian Rail Track Corporation Ltd.

ARTC arrangement means a lease, licence or other arrangement under Part 8A of the Transport Administration Act 1988.

ARTC lease or licence means a lease or licence under Part 8A of the Transport Administration Act 1988.

ARTC rail infrastructure facilities means rail infrastructure facilities owned by ARTC or a rail authority that are:

(a)  situated on land subject to an ARTC arrangement, or

(b)  subject to an ARTC arrangement.

rail infrastructure facilities has the same meaning as it has in Part 8A of the Transport Administration Act 1988.

wetlands affected activity means a project for the purposes of ARTC rail infrastructure facilities (other than a project listed in Schedule 1 to State Environmental Planning Policy (ARTC Rail Infrastructure) 2004) that, but for clause 5 (2) (b) of that Policy, would include designated development under State Environmental Planning Policy No 14—Coastal Wetlands or State Environmental Planning Policy No 26—Littoral Rainforests.

244E   Code required for rail infrastructure facilities must be complied with by ARTC

(1)  ARTC must comply with the requirements of an approved Code in respect of an activity for the purposes of ARTC rail infrastructure facilities if a Code is in force under this Part in relation to the activity.

(2)  However, ARTC is not required to comply with subclause (1) if the Minister gives written notice to ARTC that the activity is not required to be covered by, or dealt with in accordance with, an approved Code.

(3)  An exemption under subclause (2) may be made subject to conditions and may be revoked or varied at any time.

(4)  (Repealed)

244F   Approved Code

(1)  ARTC must prepare a Code and make an application to the Director-General for approval of the Code.

(1A)  The Code is to apply to activities for the purposes of ARTC rail infrastructure facilities, other than activities for which ARTC is required to furnish or obtain an environmental impact statement.

(2)  The Director-General is to assess an application for approval of a Code and to provide a report to the Minister on any such application as soon as practicable after receiving an application.

(3)  The Minister may approve a Code prepared by ARTC for the purposes of this Part and may specify the period for which the approval is in force.

(4)  The Minister must give ARTC written notice of any approval or refusal to approve a Code. In the case of a refusal, the notice is to set out reasons for the refusal.

(5)  An approval may be made subject to conditions and may be revoked or varied at any time.

(6)  A Code approved for the purposes of this clause must contain the following matters:

(a)  classes of activities for the purposes of the application of the Code,

(b)  assessment requirements for specified activities or classes of activities,

(c)  procedures for carrying out assessments,

(d)  protocols for consultation,

(e)  requirements for consideration of any advice by the Director-General,

(f)  requirements for consideration of environmental management procedures in relation to effects on the environment of activities,

(g)  requirements for documentation,

(h)  protocols for the availability of documentation to the Minister, the Director-General and the public,

(i)  protocols for auditing the performance of and compliance with the Code,

(j)  any other matters required by the Minister.

244G   Circumstances in which an environmental impact statement is or is not required for ARTC rail infrastructure facilities (other than wetlands affected activities)

(1)  This clause takes effect on 1 September 2005 or on such later date as the Minister may approve.

(2)  For the purposes of section 112 (1) of the Act, an activity for the purposes of ARTC rail infrastructure facilities (other than an activity for which an environmental impact statement must be obtained under section 244H) is a prescribed activity for which an environmental impact statement must be furnished or obtained.

(3)  However, an activity for those purposes is not a prescribed activity for the purposes of section 112 (1) of the Act if:

(a)  the Minister gives written notice to ARTC that the activity is not an activity covered by subclause (2), or

(b)  an approved Code is in force in relation to the activity, or

(c)  an exemption is in force under clause 244E (2) in relation to the activity.

(4)  An exemption under subclause (3) may be made subject to conditions and may be revoked or varied at any time.

(5)  This Division does not affect any requirement (other than a requirement arising under this Division) arising under Part 5 of the Act in relation to an activity for the purposes of ARTC rail infrastructure facilities.

244H   Wetlands affected activities that require environmental impact statements

(1)  For the purposes of section 112 (1) of the Act, a wetlands affected activity is a prescribed activity for which an environmental impact statement must be furnished or obtained.

(2)  Subclause (1) does not apply to a wetlands affected activity if the only part of the project concerned that relates to land and development affected by State Environmental Planning Policy No 14—Coastal Wetlands or State Environmental Planning Policy No 26—Littoral Rainforests concerns the maintenance or operation of rail infrastructure facilities.

244I   Existing environmental impact statements and assessments

To avoid doubt, the preparation of an environmental impact statement and any other thing done under Part 5 of the Act before the commencement of this clause in connection with rail infrastructure facilities or a wetlands affected activity are taken to have been done for the purposes of the preparation of an environmental impact statement or other thing under that Part as a result of the operation of this Division.

244J   Continuing application of Division 4 of Part 5 of Act to Sandgate rail project

(1)  This clause is made under clause 1 of Schedule 6 to the Act, as a consequence of the enactment of the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005.

(2)  The clause relating to pending or previous matters under Division 4 of Part 5 of the Act, as inserted in Schedule 6 to the Act by Schedule 1 [33] to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005, applies to the Sandgate rail project in the same way as it applies to an activity for which the Minister’s approval was sought under Division 4 of Part 5 of the Act before its repeal.

(3)  To avoid doubt, an application for the Minister’s approval in relation to the Sandgate rail project may be made under Division 4 of Part 5 of the Act, and that Division continues to apply to any such application, as if the Division had not been repealed.

(4)  In this clause:

Sandgate rail project means the proposed project relating to a grade separation of the rail lines at Sandgate, as described in the environmental impact statement for the Sandgate Rail Grade Separation, prepared by GHD Pty Ltd and dated 18 March 2005 (as modified by the Representations Report for the Sandgate Rail Grade Separation prepared by GHD Pty Ltd and dated July 2005).

Part 15 Fees and charges

Division 1A Fees under Part 3A

245A   Definitions

In this Division:

Part 3A application means an application for approval under Part 3A of the Act to carry out a project or for the concept plan for a project.

project means development to which Part 3A of the Act applies.

public notice, of an environmental assessment or other matter, means the publication of a notice of the assessment or other matter in accordance with Part 3A of the Act.

245B   Determination of fees payable for Part 3A application

(1)  The fee for a Part 3A application is to be determined by the Director-General and is not to exceed the total maximum fee determined in accordance with the provisions of this Division relating to any such application.

(2)  Separate fees are payable for an application for approval of the concept plan for a project and for an application for approval to carry out that project (including where a single application is made for approval of the concept plan and for approval to carry out a part or aspect of that project).

(3)  If two or more fees are applicable to a single Part 3A application (such as an application relating to the subdivision of land and the erection of a building on one or more lots created by the subdivision), the maximum fee payable is the sum of those fees.

(4)  The total maximum fee payable for a Part 3A application for approval for part only of a project, and for any subsequent Part 3A applications for approval for any remaining part of the project, is the maximum fee that would otherwise be payable if only a single application for approval for the project was made.

(5)  A maximum fee of $750 is payable for a Part 3A application for which no other fee is provided under this Division.

245C   Payment of fees for Part 3A applications

(1)  The fee payable under this Division for a Part 3A application is payable by the proponent within 14 days after the Director-General makes the environmental assessment in relation to the application publicly available under section 75H (3) or 75N of the Act and notifies the proponent of the amount of the fee.

Note. For critical infrastructure projects—see also clause 245H (2).

(2)  The Minister may refuse to consider a Part 3A application if the fee payable for the application remains unpaid.

245D   Maximum fee for application involving erection of building, carrying out of work or demolition (other than for marinas or extractive industries)

(1)  The maximum fee for a Part 3A application in respect of a project involving the erection of a building, the carrying out of a work or the demolition of a work or a building, and having an estimated cost within the range specified in the Table to this clause is calculated in accordance with that Table.

(2)  The fees determined under this clause do not apply to development for which a fee is payable under clause 245E or 245F.

Table

Estimated cost	Maximum fee payable
Up to $5,000	$750
$5,001–$50,000	$750, plus an additional $23.33 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $5,000.
$50,001–$100,000	$1,800, plus an additional $70.00 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $50,000.
$100,001–$200,000	$5,300, plus an additional $4.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $100,000.
$200,001–$500,000	$5,750, plus an additional $5.83 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $200,000.
$500,001–$1,000,000	$7,500, plus an additional $5.00 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $500,000.
$1,000,001–$2,000,000	$10,000, plus an additional $1.00 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $1,000,000.
$2,000,001–$3,000,000	$11,000, plus an additional $0.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $2,000,000.
$3,000,001–$4,000,000	$11,500, plus an additional $0.70 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $3,000,000.
$4,000,001–$5,000,000	$12,200, plus an additional $0.80 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $4,000,000.
$5,000,001–$8,000,000	$13,000, plus an additional $1.00 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $5,000,000.
$8,000,001–$9,000,000	$16,000, plus an additional $1.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $8,000,000.
$9,000,001–$10,000,000	$17,500, plus an additional $2.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $9,000,000.
$10,000,001–$50,000,000	$20,000, plus an additional $1.00 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $10,000,000.
$50,000,001–$100,000,000	$60,000, plus an additional $0.60 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $50,000,000.
$100,000,001–$200,000,000	$90,000, plus an additional $0.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $100,000,000.
$200,000,001–$300,000,000	$140,000, plus an additional $0.35 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $200,000,000.
$300,000,001–$400,000,000	$175,000, plus an additional $0.81 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $300,000,000.
More than $400,000,000	$256,000, plus an additional $0.64 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $400,000,000.

245E   Maximum fee for application involving erection of building or the carrying out of work for marina

(1)  The maximum fee payable for a Part 3A application in respect of a project involving the erection of a building or the carrying out of work for the purposes of a marina is $5,000, plus $500 for each vessel that can be moored, berthed or stored at fixed or floating berths, at freestanding moorings, alongside jetties or pontoons, within dry storage stacks or on cradles in hardstand areas.

(2)  In the case of a project involving the extension of an existing marina, the number of vessels referred to in subclause (1) is to be calculated on the basis of the additional number of vessels that can be moored, berthed or stored as a result of the extension of the marina.

(3)  In this clause, a vessel does not include a dinghy or other small craft.

245F   Maximum fee for application involving extractive industry

(1)  The maximum fee payable for a Part 3A application in respect of a project involving extractive industry (not being mining) is the sum of the following:

(a)  $5,000 plus $0.05 for each tonne of material that is to be extracted annually,

(b)  if the project involves the erection of a building—the maximum fee calculated in accordance with clause 245D in relation to the erection of a building.

(2)  For the purposes of subclause (1), the Director-General is to determine the weight of material that is to be extracted annually by reference to a genuine estimate of the average annual weight of material intended to be extracted.

245G   Maximum fee for application involving subdivision of land

(1)  The maximum fee payable for a Part 3A application in respect of a project involving the subdivision of land is as follows:

(a)  subdivision (other than minor subdivision and strata subdivision)—$5,000 plus $300 for each hectare (or part of a hectare) of the land being subdivided, up to a maximum of $30,000,

(b)  minor subdivision—$750,

(c)  strata subdivision—$750.

(2)  In this clause, minor subdivision means subdivision for the purpose only of any one or more of the following:

(a)  widening a public road,

(b)  making an adjustment to a boundary between lots, being an adjustment that does not involve the creation of a greater number of lots,

(c)  a minor realignment of boundaries that does not create additional lots or the opportunity for additional dwellings,

(d)  a consolidation of lots that does not create additional lots or the opportunity for additional dwellings,

(e)  rectifying an encroachment on a lot,

(f)  creating a public reserve,

(g)  excising from a lot land that is, or is intended to be, used for public purposes, including drainage purposes, rural fire brigade or other emergency service purposes or public conveniences.

245H   Maximum fee for applications relating to critical infrastructure projects

(1)  The maximum fee payable for a Part 3A application in respect of a critical infrastructure project is twice the maximum fee otherwise payable under clauses 245D–245G for a project.

(2)  If a project is declared to be a critical infrastructure project after the fee for the Part 3A application is paid or due for payment, the balance of the fee is payable within 14 days after the Director-General notifies the proponent of the amount of the balance of the fee.

245I   Additional application fee for making environmental assessment publicly available

In addition to any other fees payable under this Division, the maximum fee payable for a Part 3A application includes a maximum fee of $2,500 for giving public notice of the environmental assessment in relation to the application under section 75H (3) or 75N of the Act.

245J   Additional application fee for planning reform

In addition to any other fees payable under this Division, the maximum fee payable for a Part 3A application (other than an application for approval of a concept plan) includes a maximum fee for planning reform calculated as follows (but only if the estimated cost of the project exceeds $50,000):

where:

P represents the amount payable, expressed in dollars rounded down to the nearest dollar.

E represents the estimated cost of the project, expressed in dollars rounded up to the nearest thousand dollars.

245K   Fee for request for modification of a Minister’s approval to carry out a project or approval of a concept plan

(1)  The fee payable for consideration of a request for modification of any of the following is to be determined by the Director-General in accordance with this clause:

(a)  the approval of the Minister for a project under Part 3A of the Act,

(b)  the approval of a concept plan under that Part,

(c)  a development consent that is taken to be an approval under that Part.

(2)  The maximum fee for a request for modification that the Director-General considers will involve a minor environmental assessment is $750.

(3)  The maximum fee in any other case is:

(a)  50% of the fee paid for the Part 3A application in respect of the approval for the project or concept plan that is proposed to be modified, or

(b)  $2,000,

      whichever is the greater.

(4)  If there is public notice of a request for modification, an additional fee of $2,500 is payable.

(5)  The fee payable under this clause is payable by the person making the request and must be paid within 14 days after the Director-General notifies that person of the amount of the fee.

(6)  The Minister may refuse to consider any such request if the fee remains unpaid.

245L   Fee for review by Planning Assessment Commission

(1)  The fee payable to the Director-General in respect of the review of any aspect of a project, or a concept plan for a project, by the Planning Assessment Commission pursuant to section 23D (1) (b) (ii) of the Act is to be determined by the Director-General in accordance with this clause. Any such review includes the giving of public notice in connection with a public hearing.

(2)  The fee is $50,000, plus an additional amount (being the estimated costs of the Commission undertaking the review) of not more than $50,000.

(3)  A fee is not payable under this clause if the Director-General determines that a fee is not appropriate in the circumstances of the case.

(4)  The fee payable under this clause is payable by the relevant Part 3A proponent and must be paid within 14 days after the Director-General notifies the proponent of the amount of the fee.

245M   Fee for investigation of potential State significant site

(1)  In this clause, State significant site investigation means an investigation initiated by the Minister under clause 8 of the State Environmental Planning Policy (Major Development) 2005 into a proposed State significant site.

(2)  The fee payable for a State significant site investigation requested by a person who has or proposes to acquire an interest in all or any part of the proposed site is $20,000 plus an additional fee of $1,000 for each hectare (or part of a hectare) of the area of the proposed site.

(3)  The additional fee is not payable if the investigation is carried out in conjunction with the assessment of an application for approval of a concept plan under Part 3A in relation to the site.

(4)  The fee is payable by the person requesting the investigation within 14 days after the Director-General notifies the person of the fee payable.

245N   Meaning of “estimated cost” for determining fee under this Division

(1)  In determining the fee in relation to a project involving the erection of a building, the Director-General must make his or her determination by reference to a genuine estimate of the capital investment value of the project.

(2)  In determining the fee in relation to a project involving the carrying out of a work, the Director-General must make his or her determination by reference to a genuine estimate of the construction costs of the work.

(3)  In determining the fee in relation to a project involving the demolition of a building or work, the Director-General must make his or her determination by reference to a genuine estimate of the costs of demolition.

(4)  In determining the fee in relation to a concept plan for a project, the Director-General may make any necessary assumptions about the detail of the future project that is the subject of the concept plan.

(5)  (Repealed)

Division 1 Fees for development applications

245   (Renumbered as clause 245AA)

245AA   What is the maximum fee?

(cf clause 92 of EP&A Regulation 1994)

(1)  The fee for a development application must not exceed the maximum amount determined in accordance with this Division.

(2)  The services covered by the fee for a development application include the following:

(a)  the receipt of the application, and any internal referrals of the application,

(b)  consideration of the application for the purpose of determining whether any further information is required in relation to the proposed development,

(c)  inspection of the land to which the proposed development relates,

(d)  evaluation of the proposed development under section 79C of the Act, including discussion with interested parties,

(e)  preparation of internal reports on the application,

(f)  preparation and service of notices of the consent authority’s determination of the application,

(g)  the monitoring and reviewing by the Director-General of the practices and procedures followed by consent authorities in dealing with development applications:

(i)  for the purpose of assessing the efficiency and effectiveness of those practices and procedures, and

(ii)  for the purpose of ensuring that those practices and procedures comply with the provisions of the Act and this Regulation,

(h)  the monitoring and reviewing by the Director-General of the provisions of environmental planning instruments:

(i)  that control development, or

(ii)  that are required to be taken into consideration by consent authorities when dealing with development applications,

      for the purposes of assessing the effectiveness of those provisions in achieving their intended effect and making recommendations for their improvement,

(i)  the operational expenses of the Building Professionals Board established under the Building Professionals Act 2005.

Note. Clause 50 (1) (c) provides that a development application must be accompanied by the fee, not exceeding the fee prescribed by Part 15, determined by the consent authority.

246   What is the fee for a development application?

(cf clause 93 of EP&A Regulation 1994)

(1)  The maximum fee for development involving the erection of a building, the carrying out of work or the demolition of a work or a building, and having an estimated cost within the range specified in the Table to this clause is calculated in accordance with that Table.

(2)  Despite subclause (1), the maximum fee payable for development for the purpose of one or more advertisements is:

(a)  $215, plus $70 for each advertisement in excess of one, or

(b)  the fee calculated in accordance with the Table,

      whichever is the greater.

(3)  The fees determined under this clause do not apply to development for which a fee is payable under clause 247.

Table

Estimated cost	Maximum fee payable
Up to $5,000	$110
$5,001–$50,000	$170, plus an additional $3 for each $1,000 (or part of $1,000) of the estimated cost.
$50,001–$250,000	$352, plus an additional $3.64 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $50,000.
$250,001–$500,000	$1,160, plus an additional $2.34 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $250,000.
$500,001–$1,000,000	$1,745, plus an additional $1.64 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $500,000.
$1,000,001–$10,000,000	$2,615, plus an additional $1.44 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $1,000,000.
More than $10,000,000	$15,875, plus an additional $1.19 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $10,000,000.

247   Development involving the erection of a dwelling-house with an estimated construction cost of $100,000 or less

(cf clause 94 of EP&A Regulation 1994)

A maximum fee of $364 is payable for development involving the erection of a dwelling-house with an estimated cost of construction of $100,000 or less.

248   Residential flat development

An additional fee, not exceeding $600, is payable for development which is required to be referred to a design review panel under State Environmental Planning Policy No 65—Design Quality of Residential Flat Development.

249   Development involving the subdivision of land

(cf clause 96 of EP&A Regulation 1994)

The maximum fee payable for development involving the subdivision of land is calculated as follows:

(a)  subdivision (other than strata subdivision):

(i)  involving the opening of a public road, $500 plus $50 for each additional lot created by the subdivision, or

(ii)  not involving the opening of a public road, $250 plus $40 for each additional lot created by the subdivision,

(b)  strata subdivision, $250 plus $50 for each additional lot created by the subdivision.

Note. For example, a plan of subdivision that provides for 5 lots over land that has previously comprised 2 lots will result in the creation of 3 additional lots, and so attract a fee that includes a base amount of $500 or $250, as the case requires, together with a further amount of $50 or $40, as the case requires, for each of the 3 additional lots.

250   Development not involving the erection of a building, the carrying out of a work, the subdivision of land or the demolition of a building or work

(cf clause 97 of EP&A Regulation 1994)

A maximum fee of $220 is payable for development that does not involve the erection of a building, the carrying out of a work, the subdivision of land or the demolition of a building or work.

251   Designated development

In addition to any other fees payable under this Division, a maximum fee of $715 is payable for designated development.

252   What additional fees are payable for development that requires advertising?

(cf clause 99 of EP&A Regulation 1994)

(1)  In addition to any other fees payable under this Division, a consent authority may charge up to the following maximum fees for the giving of the notice required for the development:

(a)  $1,665, in the case of designated development,

(b)  $830, in the case of advertised development,

(c)  $830, in the case of prohibited development,

(d)  $830, in the case of development for which an environmental planning instrument or development control plan requires notice to be given otherwise than as referred to in paragraph (a), (b) or (c).

(2)  The consent authority must refund so much of the fee paid under this clause as is not spent in giving the notice.

252A   What additional fees are payable for development that requires concurrence?

(1)  An additional processing fee up to a maximum of $110, plus a concurrence fee for payment to each concurrence authority, are payable in respect of an application for development that requires concurrence under the Act or an environmental planning instrument.

(2)  The consent authority must forward each concurrence fee to the concurrence authority concerned at the same time at which it forwards a copy of the development application to the concurrence authority under clause 59.

(3)  The concurrence fee for a development application is not payable:

(a)  to any concurrence authority whose concurrence may be assumed in accordance with clause 64, or

(b)  to any concurrence authority that has notified the consent authority in writing that payment of the fee is waived, whether generally, in relation to that application or in relation to a class of development applications to which that application belongs.

(3A)  A concurrence authority may repay to the consent authority the whole or any part of a concurrence fee paid to it under this clause, in which case the consent authority must remit the amount repaid to the applicant.

(4)  The additional processing fee is not payable:

(a)  for any application in respect of which concurrence may be assumed in accordance with clause 64 for all of the concurrence authorities concerned, or

(b)  for any application made before 1 July 2002.

(5)  For the purposes of this clause, the concurrence fee payable to a concurrence authority for a development application is $250 or such lesser amount as is notified to the consent authority in writing by the concurrence authority, whether generally, in relation to that application or in relation to a class of development applications to which that application belongs.

253   What additional fees are payable for integrated development?

(cf clause 100 of EP&A Regulation 1994)

(1)  An additional processing fee up to a maximum of $110, plus an approval fee for payment to each approval body, are payable in respect of an application for integrated development.

(2)  The consent authority must forward each approval fee to the approval body concerned at the same time at which it forwards a copy of the development application to the approval body under clause 66.

(2A)  The approval fee for a development application is not payable to any approval body that has notified the consent authority in writing that payment of the fee is waived, whether generally, in relation to that application or in relation to a class of development applications to which that application belongs.

(2B)  An approval body may repay to the consent authority the whole or any part of an approval fee paid to it under this clause, in which case the consent authority must remit the amount repaid to the applicant.

(3)  The additional processing fee is payable in respect only of applications made on or after 1 July 2002.

(4)  For the purposes of this clause, the approval fee payable to an approval body for a development application is $250 or such lesser amount as is notified to the consent authority in writing by the approval body, whether generally, in relation to that application or in relation to a class of development applications to which that application belongs.

254   What if two or more fees are applicable to a single development application?

(cf clause 101 of EP&A Regulation 1994)

If two or more fees are applicable to a single development application (such as an application to subdivide land and erect a building on one or more lots created by the subdivision), the maximum fee payable for the development is the sum of those fees.

255   How is a fee based on estimated cost determined?

(cf clause 102 of EP&A Regulation 1994)

(1)  In determining the fee for development involving the erection of a building, the consent authority must make its determination by reference to a genuine estimate of:

(a)  the costs associated with the construction of the building, and

(b)  the costs associated with the preparation of the building for the purpose for which it is to be used (such as the costs of installing plant, fittings, fixtures and equipment).

(1A)  In determining the fee for development involving the carrying out of a work, the consent authority must make its determination by reference to a genuine estimate of the construction costs of the work.

(1B)  In determining the fee for development involving the demolition of a building or work, the consent authority must make its determination by reference to a genuine estimate of the costs of demolition.

(2)  The estimate must, unless the consent authority is satisfied that the estimated cost indicated in the development application is neither genuine nor accurate, be the estimate so indicated.

256   Determination of fees after development applications have been made

(cf clause 103 of EP&A Regulation 1994)

(1)  The determination of a fee to accompany a development application must be made before, or within 14 days after, the application is lodged with the consent authority.

(2)  A determination made after the lodging of a development application has no effect until notice of the determination is given to the applicant.

(3)  A consent authority may refuse to consider a development application for which a fee has been duly determined and notified to the applicant but remains unpaid.

256A   Proportion of development application fees to be remitted to Director-General

(1)  For each development application lodged with a consent authority for development referred to in clause 246 (1) having an estimated cost exceeding $50,000, an amount calculated as follows is to be set aside for payment to the Director-General for the services referred to in clause 245AA (2) (g), (h) and (i):

where:

P represents the amount to be set aside, expressed in dollars rounded down to the nearest dollar, and

E represents the estimated cost of the development, expressed in dollars rounded up to the nearest thousand dollars.

(1A)  Such part of the amount referred to in subclause (1) as is not directed by the Minister to be paid into the Building Professionals Board Fund under section 105 (6) of the Act is to be applied by the Director-General to the services referred to in clause 245AA (2) (g) and (h).

(2)  The consent authority must forward to the Director-General:

(a)  on or before the 14th day of each month, a report in relation to development applications lodged with it during the previous month containing such information, and being prepared in such form, as the Director-General may determine, and

(b)  on or before the 28th day of each month, the total amount set aside under subclause (1) in relation to those development applications.

(3)  (Repealed)

256B   Staged development applications

The maximum fee payable for a staged development application in relation to a site, and for any subsequent development application for any part of the site, is the maximum fee that would be payable as if a single development application only was required for all the development on the site.

Division 2 Other fees and charges

257   What is the fee for a request for a review of a determination?

The maximum fee for a request for a review of a determination under section 82A (3) of the Act is:

(a)  in the case of a request with respect to a development application that does not involve the erection of a building, the carrying out of a work or the demolition of a work or building, 50 per cent of the fee for the original development application, and

(b)  in the case of a request with respect to a development application that involves the erection of a dwelling-house with an estimated cost of construction of $100,000 or less, $150, and

(c)  in the case of a request with respect to any other development application, as set out in the Table to this clause,

plus an additional amount of not more than $500 if notice of the application is required to be given under section 82A of the Act.

Table

Estimated cost	Maximum fee payable
Up to $5,000	$55
$5,001–$250,000	$85, plus an additional $1.50 for each $1,000 (or part of $1,000) of the estimated cost.
$250,001–$500,000	$500, plus an additional $0.85 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $250,000.
$500,001–$1,000,000	$712, plus an additional $0.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $500,000.
$1,000,001–$10,000,000	$987, plus an additional $0.40 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $1,000,000.
More than $10,000,000	$4,737, plus an additional $0.27 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $10,000,000.

258   What is the fee for an application for modification of a consent for local development or State significant development?

(cf clause 105 of EP&A Regulation 1994)

(1)  The maximum fee for an application under section 96 (1) of the Act is $55.

(1A)  The maximum fee for an application under section 96 (1A) of the Act, or under section 96AA (1) of the Act in respect of a modification which, in the opinion of the consent authority, is of minimal environmental impact, is $500 or 50 per cent of the fee for the original development application, whichever is the lesser.

(2)  The maximum fee for an application under section 96 (2) of the Act, or under section 96AA (1) of the Act in respect of a modification which, in the opinion of the consent authority, is not of minimal environmental impact, is:

(a)  if the fee for the original application was less than $100, 50 per cent of that fee, or

(b)  if the fee for the original application was $100 or more:

(i)  in the case of an application with respect to a development application that does not involve the erection of a building, the carrying out of a work or the demolition of a work or building, 50 per cent of the fee for the original development application, and

(ii)  in the case of an application with respect to a development application that involves the erection of a dwelling-house with an estimated cost of construction of $100,000 or less, $150, and

(iii)  in the case of an application with respect to any other development application, as set out in the Table to this clause,

      plus an additional amount of not more than $500 if notice of the application is required to be given under section 96 (2) or 96AA (1) of the Act.

(2A)  An additional fee, not exceeding $600, is payable for development to which clause 115 (1A) applies.

(3)  The consent authority must refund so much of the additional amount as is not spent in giving the notice under section 96 (2) or 96AA (1) of the Act.

(3A)  The consent authority must refund the additional fee paid under subclause (2A) if the development is not referred to a design review panel.

(4)  In this clause:

(a)  a reference to an original development application is a reference to the development application that resulted in the granting of the consent to be modified, and

(b)  a reference to the fee for the original development application does not include a reference to any fee under clause 252 that was payable for the giving of notice.

(5)  This clause does not apply to an application for the modification of a development consent granted by the Land and Environment Court on appeal from some other consent authority.

Table

Estimated cost	Maximum fee payable
Up to $5,000	$55
$5,001–$250,000	$85, plus an additional $1.50 for each $1,000 (or part of $1,000) of the estimated cost.
$250,001–$500,000	$500, plus an additional $0.85 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $250,000.
$500,001–$1,000,000	$712, plus an additional $0.50 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $500,000.
$1,000,001–$10,000,000	$987, plus an additional $0.40 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $1,000,000.
More than $10,000,000	$4,737, plus an additional $0.27 for each $1,000 (or part of $1,000) by which the estimated cost exceeds $10,000,000.

259   What is the fee for a planning certificate?

(cf clause 106 of EP&A Regulation 1994)

(1)  The prescribed fee for the issue of a certificate under section 149 (2) of the Act is $40.

(2)  A council may charge one additional fee of not more than $60 for any advice given under section 149 (5) of the Act.

260   What is the fee for a building certificate?

(cf clause 107 of EP&A Regulation 1994)

(1)  For the purposes of section 149B (2) of the Act, the fee for an application for a building certificate in relation to a building is:

(a)  in the case of a class 1 building (together with any class 10 buildings on the site) or a class 10 building, $210 for each dwelling contained in the building or in any other building on the allotment, or

(b)  in the case of any other class of building, as set out in the Table to this clause, or

(c)  in any case where the application relates to a part of a building and that part consists of an external wall only or does not otherwise have a floor area, $210.

(2)  If it is reasonably necessary to carry out more than one inspection of the building before issuing a building certificate, the council may require the payment of an additional fee (not exceeding $75) for the issue of the certificate.

(3)  However, the council may not charge an additional fee for any initial inspection.

(3A)  An additional fee determined in accordance with subclause (3B) may be charged for an application for a building certificate in relation to a building where the applicant for the certificate, or the person on whose behalf the application is made, is the person who erected the building or on whose behalf the building was erected and any of the following circumstances apply:

(a)  where a development consent, complying development certificate or construction certificate was required for the erection of the building and no such consent or certificate was obtained,

(b)  where a penalty notice has been issued for an offence under section 76A (1) of the Act in relation to the erection of the building and the person to whom it was issued has paid the penalty required by the penalty notice in respect of the alleged offence (or if the person has not paid the penalty and has not elected to have the matter dealt with by a court, enforcement action has been taken against the person under Division 4 of Part 4 of the Fines Act 1996),

(c)  where order No 2, 12, 13, 15, 18 or 19 in the Table to section 121B (1) of the Act has been given in relation to the building unless the order has been revoked on appeal,

(d)  where a person has been found guilty of an offence under the Act in relation to the erection of the building,

(e)  where the court has made a finding that the building was erected in contravention of a provision of the Act.

(3B)  The additional fee payable under subclause (3A) is the total of the following amounts:

(a)  the amount of the maximum fee that would be payable if the application were an application for development consent, or a complying development certificate (if appropriate), authorising the erection or alteration of any part of the building to which the application relates that has been erected or altered in contravention of the Act in the period of 24 months immediately preceding the date of the application,

(b)  the amount of the maximum fee that would be payable if the application were an application to the council for a construction certificate relating to the erection or alteration of any part of the building to which the application relates that has been erected or altered in contravention of the Act in the period of 24 months immediately preceding the date of the application.

(3C)  If an application for a building certificate is made in relation to part only of a building, a reference in subclause (3A) to a building is taken to be a reference to the part of a building that is the subject of the application.

(4)  In this clause, a reference to a class 1 building includes a reference to a class 2 building that comprises 2 dwellings only.

Table

Floor area of building or part	Fee
Not exceeding 200 square metres	$210
Exceeding 200 square metres but not exceeding 2,000 square metres	$210, plus an additional 42 cents per square metre over 200
Exceeding 2,000 square metres	$966, plus an additional 6.3 cents per square metre over 2,000

261   What is the fee for a copy of a building certificate?

For the purposes of section 149G (3) of the Act, the prescribed fee for a copy of a building certificate is $10.

262   What is the fee for a certified copy of a document, map or plan held by the department or a council?

(cf clause 108 of EP&A Regulation 1994)

The prescribed fee for a certified copy of a document, map or plan referred to in section 150 (2) of the Act is $40.

262A   What is the fee for a site compatibility certificate?

(1)  The maximum fee for an application to the Director-General for a site compatibility certificate (affordable rental housing) is $250 plus an additional $40 for each dwelling in the development in respect of which the certificate was issued.

(2)  The maximum fee for an application to the Director-General for a site compatibility certificate (infrastructure) is $250 plus an additional $250 for each hectare (or part of a hectare) of the area of the land in respect of which the certificate was issued.

(3)  The maximum fee for an application to the Director-General for a site compatibility certificate (seniors housing) is $250 plus an additional:

(a)  in the case where the proposed development is for the purposes of a residential care facility (within the meaning of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004)—$40 per bed in the proposed facility, or

(b)  in any other case—$40 per dwelling in the proposed development.

(4)  Despite any other provision of this clause, the fee for an application to the Director-General for a site compatibility certificate must not exceed $5,000.

262B   (Repealed)

263   What other fees may be imposed?

(cf clause 109 of EP&A Regulation 1994)

(1)  The maximum charge or fee that may be imposed under section 137 (1) of the Act is:

(a)  the amount determined by the Director-General (either generally or in any particular case or class of cases), having regard to the cost to the Minister, corporation, Department or Director-General of doing anything referred to in that subsection, or

(b)  if there is not a relevant determination in force, 120 per cent of the cost to the Minister, corporation, Department or Director-General of doing anything referred to in that subsection.

(2)  A consent authority or council may impose a fee of not more than $30 for the lodging with it of any of the following certificates:

(a)  a complying development certificate,

(b)  a Part 4A certificate, if it is:

(i)  a construction certificate, or

(ii)  an occupation certificate, or

(iii)  a subdivision certificate.

Part 16 Registers and other records

264   Council to maintain a register of development applications and consents

(cf clause 109A of EP&A Regulation 1994)

(1)  A council must maintain a register containing details of the following matters for each development application that is either made to it as the consent authority or furnished to it in cases where it is not the consent authority:

(a)  the registered number of the application,

(b)  the date when the application was made,

(c)  the amount of any fee payable in connection with the application,

(d)  the date or dates when any such fee, or any part of such fee, was paid,

(e)  the date when the application was determined.

(2)  The register must also contain details of the following matters for each development consent:

(a)  the name and address of the person to whom the consent was granted,

(b)  the address, and formal particulars of title, of the land to which the consent relates,

(c)  the date when the consent was granted,

(d)  a brief description of the subject-matter of the consent, including a statement as to the nature of the development (residential, commercial, industrial or other),

(e)  any conditions to which the consent is subject,

(f)  the duration of the consent,

(g)  the date when the consent became effective,

(h)  whether the consent has been revoked, modified or surrendered,

(i)  the date when any notice was published in respect of the consent as referred to in section 101 of the Act,

(j)  the date of issue of any related construction certificates,

(k)  the date of commencement of building or subdivision work the subject of the consent,

(l)  the name and accreditation number of the principal certifying authority appointed in relation to a consent involving building or subdivision work,

(m)  in the case of a consent concerning residential building work (within the meaning of the Home Building Act 1989):

(i)  the names of licensees and owner-builders, and

(ii)  the names of the approved insurers (where relevant) of the licensees under Part 6 of the Home Building Act 1989, and

(iii)  the numbers endorsed on contractor licences and permits of which the council is informed under the requirements of this Regulation,

(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,

(n)  the date of issue of any related subdivision or occupation certificate,

(o)  any approvals taken, by section 78A of the Act, to have been granted under the Local Government Act 1993,

(p)  any approvals under an Act that were considered as part of the integrated development process.

(3)  The register must contain the following indexes of the development consents referred to in subclause (2):

(a)  an index prepared by reference to the address of the land to which each development relates,

(b)  an index prepared by reference to the chronological order of the granting of each development consent.

(4)  For the purposes of section 100 of the Act, the prescribed form for the register is a book, in loose-leaf form, or an electronic data retrieval system.

265   Council to maintain a register of complying development applications

(cf clause 109B of EP&A Regulation 1994)

(1)  A council must maintain a register containing details of the following matters for each application for a complying development certificate whether or not the council is the certifying authority:

(a)  the date when the application was made,

(b)  the name and address of the person making the application,

(c)  the address, and formal particulars of title, of the land to which the certificate relates,

(d)  the date when the certificate was granted or refused,

(e)  if the certificate was granted or refused by an accredited certifier, the name and accreditation number of the accredited certifier,

(f)  the date of commencement of building or subdivision work the subject of the certificate,

(g)  the name and accreditation number of the principal certifying authority appointed in relation to the building or subdivision work the subject of the certificate,

(h)  in the case of a certificate concerning residential building work (within the meaning of the Home Building Act 1989):

(i)  the names of licensees and owner-builders, and

(ii)  the names of the approved insurers (where relevant) of the licensees under Part 6 of the Home Building Act 1989, and

(iii)  the numbers endorsed on contractor licences and permits of which the council is informed under the requirements of this Regulation,

(i)  the date of issue of any related subdivision or occupation certificate,

(j)  the date on which notice of the granting of the certificate was published under section 101 of the Act.

(2)  The register must contain the following indexes of the complying development certificates referred to in subclause (1):

(a)  an index prepared by reference to the address of the land to which each certificate relates,

(b)  an index prepared by reference to the chronological order of the granting of each certificate.

(3)  The register is to be kept in the form of a book, in loose-leaf form, or in the form of an electronic data retrieval system.

(4)  The register under this clause is the register prescribed for the purposes of section 100 of the Act.

266   Council to keep certain documents relating to development applications and consents

(cf clause 109C of EP&A Regulation 1994)

(1)  A council must keep the following documents for each development application made to it and each development consent resulting from a development application made to it:

(a)  a copy of the development application,

(b)  a copy of the relevant section 81 notice to the applicant,

(c)  a copy of any instrument by which some other development consent or existing use right has been modified or surrendered,

(d)  a copy of the decision of the Land and Environment Court, in the case of a development consent granted by the Court on appeal from the determination of the council,

(e)  a copy of the Minister’s determination of the application, in the case of an application determined by the Minister for State significant development or an application determined by the Minister under section 80 (7) of the Act,

(f)  a copy of any recommendations made by relevant employees of the council with respect to the determination of the application,

(g)  if the development consent has been revoked, modified or surrendered, a copy of the instrument of revocation, modification or surrender,

(h)  if a notice has been published in respect of the development consent as referred to in section 101 of the Act, a copy of the page of the newspaper in which the notice was published,

(i)  a copy of the notification of the determination to issue a construction certificate relating to the consent and a copy of the certificate and any related plans, specifications and any other documents that were forwarded to the council,

(j)  a copy of the notification of the appointment of the principal certifying authority and the notification of the commencement of building or subdivision work relating to the development the subject of the consent,

(k)  a copy of the notification of the determination of an application for an occupation certificate relating to any building the subject of the consent,

(l)  a copy of the notification of the determination of an application for a subdivision certificate relating to any subdivision the subject of the consent and the endorsed plan of subdivision,

(m)  a copy of the notification of the determination of any application for a compliance certificate relating to the development the subject of the consent and any relevant plans and specifications and other documents relating to the compliance certificate,

(n)  a copy of a decision of the Land and Environment Court in the case of an occupation certificate, subdivision certificate or construction certificate issued by the Court on appeal from a determination of the council,

(o)  details of approved alternative solutions relating to construction certificates or compliance certificates together with details of the assessment methods used to establish compliance with the relevant performance requirements,

(p)  a copy of the record of any inspection made for the purposes of clause 143B in respect of the proposed development concerned.

(2)  A council must keep the documents referred to in subclause (1) that are furnished to it in accordance with this Regulation by any other consent authority or certifying authority in those cases where the council is not the consent authority or certifying authority.

267   Council to keep certain documents relating to complying development certificates

(cf clause 109D of EP&A Regulation 1994)

A council must keep the following documents for each application for a complying development certificate whether or not the application is made to the council and each complying development certificate whether or not the certificate is issued by the council:

(a)  a copy of the determination of the application for a complying development certificate including any related plans and specifications,

(b)  if a notice has been published in respect of the complying development as referred to in section 101 of the Act, a copy of the page of the newspaper in which the notice was published,

(c)  a copy of the notification of the appointment of the principal certifying authority and the notification of the commencement of building or subdivision work relating to the development the subject of the complying development certificate,

(d)  a copy of the notification of the determination of an application for an occupation certificate relating to any building the subject of the complying development certificate,

(e)  a copy of the notification of the determination of an application for a subdivision certificate relating to any subdivision the subject of the complying development certificate and the endorsed plan of subdivision,

(f)  a copy of the notification of the determination of any application for a compliance certificate relating to the development the subject of the complying development certificate,

(g)  a copy of a decision of the Land and Environment Court in the case of an occupation certificate or subdivision certificate issued by the Court on appeal from a determination of the council,

(h)  details of approved alternative solutions relating to compliance certificates, together with details of the assessment methods used to establish compliance with the relevant performance requirements,

(i)  a copy of the record of any inspection made for the purposes of clause 129B in respect of the proposed development concerned.

267A   Records relating to complaints

(1)  A principal certifying authority for development must keep a written record of each complaint received by the authority in relation to the development and any action taken by the authority or response made in relation to the complaint.

(2)  The record must be kept for a period of 10 years from the date on which the complaint was received by the principal certifying authority.

268   Council to keep certain records available for public inspection

(cf clause 109E of EP&A Regulation 1994)

(1)  A council must make the following documents available for inspection at its principal office, free of charge, during the council’s ordinary office hours:

(a)  the registers kept under clauses 264 and 265,

(b)  the documents kept under clauses 266 and 267.

(2)  A copy of any extracts from the registers or a copy of any of the other documents may be made on payment of a reasonable copying charge set by the council.

(3)  Nothing in this clause confers a right or entitlement to inspect, make copies of or take extracts from so much of a document that, because of section 12 (1A) of the Local Government Act 1993, a person does not have the right to inspect.