An Act to amend the Environmental Planning and Assessment Act 1979 to enable the lapsing period for consent to State significant development to be extended in certain circumstances; to provide for voluntary surrender of development consents; and for other purposes.
1 Name of Act
This Act is the Environmental Planning and Assessment Amendment (Development Consents) Act 2003.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Environmental Planning and Assessment Act 1979 No 203
The Environmental Planning and Assessment Act 1979 is amended as set out in Schedule 1.
4 Consequential amendment of Environmental Planning and Assessment Regulation 2000
The Environmental Planning and Assessment Regulation 2000 is amended as set out in Schedule 2.
Schedule 1 Amendment of Environmental Planning and Assessment Act 1979
(Section 3)
[1] Section 95 Lapsing of consent
Omit “vary” from section 95 (2). Insert instead “reduce”.
[2] Section 95 (3)
Omit “variation”. Insert instead “reduction”.
[3] Section 95B
Insert after section 95A:95B Extension of lapsing period for consent for State significant development(1) This section applies to a development consent for State significant development that:(a) is not subject to a condition under section 80 (5), and(b) is to lapse 5 years after the date from which it operates (the lapsing period).(2) The applicant or any other person entitled to act on a development consent to which this section applies may apply to the consent authority for one or more extensions of the lapsing period of up to 3 years in total. The application must be made within 12 months before the lapsing period (or the period as previously extended under this section) lapses.Note—The Minister is the consent authority for State significant development.(3) The application must be made in accordance with the regulations.(4) The consent authority may grant an extension if satisfied that the applicant has shown:(a) that the development consent may lapse because there is, has been or may be, delay in physically commencing building, engineering or construction work, or use, of all or part of the land to which the consent applies that arises from or is related to one or more relevant legal proceedings, and(b) that there is otherwise good cause.(5) An extension may be for a period commensurate with the period of the delay but must not be made so as to cause the period before the development consent lapses to be longer than 8 years after the date from which the consent operates.Note—See section 83 for when a consent operates.(6) There is no appeal against the determination of an application under this section.(7) An extension under this section commences to run from the later of the following:(a) the date on which the consent would have lapsed but for the extension,(b) the date on which the consent authority grants the extension.(8) If an application for an extension is made in accordance with this section but the consent authority does not determine the application before the development consent lapses, the development consent concerned does not lapse but ceases to be effective until the date on which the applicant is notified of the determination.(9) In this section:ineffective legal proceeding means a legal proceeding under this Act or any other law of this State or the Commonwealth (whether written or unwritten) that:(a) has been instituted but not determined, or(b) has been determined without the court or tribunal granting the relief (whether in whole or in part) sought by the person who instituted the proceeding or by the court or tribunal concerned dismissing the proceeding.relevant legal proceeding, in relation to land to which a development consent applies, means an ineffective legal proceeding:(a) in which relief was sought with respect to work to be carried out on, use of or any other activity on the land or any claim or right in respect of a native title right or interest in the land, and(b) that was commenced, whether before or after the commencement of this section, by a person other than the applicant or any other person entitled to act on the consent.
[4] Section 104A
Insert after section 104:104A Voluntary surrender of development consent(1) A development consent may be surrendered, subject to and in accordance with the regulations, by any person entitled to act on the consent.(2) A development consent may be surrendered under this section even if, on the making of an appeal under section 97 or 98, the consent has ceased to be, or does not become, effective as referred to in section 83 (2).
[5] Schedule 6 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
[6] Schedule 6, Part 14
Insert after clause 63:64 Lapsing of development consents for State significant developmentSection 95B, as inserted by the Environmental Planning and Assessment Amendment (Development Consents) Act 2003, extends to the following:(a) any development consent granted pursuant to State Environmental Planning Policy No 34—Major Employment-Generating Industrial Development, or State Environmental Planning Policy No 48—Major Putrescible Landfill Sites, that was determined after 1 July 1998 by the operation of clause 18 or 19 of this Schedule,(b) any consent granted in response to an application for consent to State significant development made before, but not finally determined on, the commencement of this clause.65 Voluntary surrender of development consentsSection 104A, as inserted by the Environmental Planning and Assessment Amendment (Development Consents) Act 2003, extends to a development consent granted before the commencement of the section.
Schedule 2 Consequential amendment of Environmental Planning and Assessment Regulation 2000
(Section 4)
[1] Clause 97 Modification or surrender of development consent or existing use right
Insert “referred to in subclause (1)” after “surrender of a development consent or existing use right” in clause 97 (2).
[2] Clause 97 (3) and (4)
Insert after clause 97 (2):(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.
[3] Clause 114A
Insert after clause 114:114A Applications to extend lapsing period for consent for State significant developmentAn application under section 95B of the Act to extend the lapsing period for consent for State significant development:(a) must be in writing, and(b) must identify the development consent to which it relates, and(c) must show the matters referred to in section 95B (4) of the Act.