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Contents (1979 - 203)
Environmental Planning and Assessment Act 1979 No 203
Current version for 15 June 2018 to date (accessed 24 June 2018 at 00:19)
Part 4
Part 4 Development assessment and consent
Division 4.1 Carrying out of development—with consent, without consent and prohibited
4.1   Development that does not need consent
(cf previous s 76)
(1) General If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies.
Note.
 Environmental assessment of the development may nevertheless be required under Division 5.1.
(2), (3)    (Repealed)
4.2   Development that needs consent
(cf previous s 76A)
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a)  such a consent has been obtained and is in force, and
(b)  the development is carried out in accordance with the consent and the instrument.
Maximum penalty: Tier 1 monetary penalty.
(2)  For the purposes of subsection (1), development consent may be obtained:
(a)  by the making of a determination by a consent authority to grant development consent, or
(b)  in the case of complying development, by the issue of a complying development certificate.
(3), (4)    (Repealed)
(5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.
(6)–(9)    (Repealed)
Note.
 Division 4.7 makes provision with respect to State significant development.
4.3   Development that is prohibited
(cf previous s 76B)
If an environmental planning instrument provides that:
(a)  specified development is prohibited on land to which the provision applies, or
(b)  development cannot be carried out on land with or without development consent,
a person must not carry out the development on the land.
Maximum penalty: Tier 1 monetary penalty.
4.4   Relationship of this Division to this Act
(cf previous s 76C)
This Division is subject to the other provisions of this Act, unless express provision is made to the contrary.
Division 4.2 Consent authority
4.5   Designation of consent authority
For the purposes of this Act, the consent authority is as follows:
(a)  in the case of State significant development—the Independent Planning Commission (if the development is of a kind for which the Commission is declared the consent authority by an environmental planning instrument) or the Minister (if the development is not of that kind),
(b)  in the case of development of a kind that is declared by an environmental planning instrument as regionally significant development—the Sydney district or regional planning panel for the area in which the development is to be carried out,
(c)  in the case of development of a kind that is declared by an environmental planning instrument as development for which a public authority (other than a council) is the consent authority—that public authority,
(d)  in the case of any other development—the council of the area in which the development is to be carried out.
4.6   Provisions relating to Independent Planning Commission
The following consent authority functions of the Independent Planning Commission are to be exercised by the Planning Secretary on behalf of the Commission:
(a)  receiving development applications and determining and receiving fees for the applications,
(b)  undertaking assessments of the proposed development and providing them to the Commission (but without limiting the assessments that the Commission may undertake),
(c)  obtaining any concurrence, and undertaking any consultation, that the consent authority is required to obtain or undertake,
(d)  carrying out the community participation requirements of Division 2.6,
(e)  notifying or registering the determinations of the Commission,
(f)  the functions under section 4.17 in relation to the provision of security,
(g)  the determination of applications to extend the period before consents lapse,
(h)  any other function prescribed by the regulations.
4.7   Provisions relating to Sydney district or regional planning panels
(1)  Development of the following kind cannot be declared as regionally significant development for which a Sydney district or regional planning panel is the consent authority:
(a)  complying development,
(b)  development for which development consent is not required,
(c)  development that is State significant development,
(d)  development for which a person or body other than a council is the consent authority,
(e)  development within the City of Sydney.
(2)  The following consent authority functions of a Sydney district or regional planning panel are to be exercised on behalf of the panel by the council of the area in which the proposed development is to be carried out:
(a)  receiving development applications and determining and receiving fees for the applications,
(b)  undertaking assessments of the proposed development and providing them to the panel (but without limiting the assessments that the panel may undertake),
(c)  obtaining any concurrence, and undertaking any consultation, that the consent authority is required to obtain or undertake,
(d)  carrying out the community participation requirements of Division 2.6,
(e)  notifying or registering the determinations of the panel,
(f)  the functions under section 4.17 in relation to the provision of security,
(g)  the determination of applications to extend the period before consents lapse,
(h)  any other function prescribed by the regulations.
4.8   Exercise of consent authority functions on behalf of councils where local planning panel constituted
(cf previous s 23I)
(1)  This section applies in respect of an area of a council for which a local planning panel has been constituted.
(2)  The functions of a council as a consent authority in respect of any such area are not exercisable by the councillors. They are exercisable on behalf of the council by:
(a)  the local planning panel, or
(b)  an officer or employee of the council to whom the council delegates those functions.
(3)  The Minister may give directions to councils under section 9.1 (either to particular councils or to councils generally) on the development applications that are to be determined on behalf of the council by a local planning panel.
(4)  For the purposes of this section, the functions of a council as consent authority include:
(a)  the determination of development applications, and
(b)  without limiting paragraph (a), the functions of a consent authority under Divisions 4.3 and 4.4 and sections 4.34, 4.54 (2), 4.56 (2), 4.57, 7.7, 7.11, 7.12, 7.13, 7.14, 7.15, 7.24 and 7.32, and
(c)  the functions of a consent authority or council under this Act or any other Act that relate to the carrying out of development (including the making of development applications) and that are declared by the regulations to be functions of a council as consent authority,
but do not include the functions of a consent authority or council that the regulations declare are not the functions of a council as consent authority.
(5)  In this section, development applications includes applications to modify development consents.
Division 4.3 Development that needs consent (except complying development)
4.9   Application of Division
(cf previous s 77)
This Division:
(a)  applies to development that may not be carried out except with development consent, but
(b)  does not apply to complying development.
Note.
 Under this Part, the procedures by which development consent is obtained differ according to whether the development:
(a)  is or is not State significant development, and
(b)  is or is not designated development (which it may be declared to be by an environmental planning instrument or the regulations), and
(c)  is or is not integrated development (see Division 4.8).
4.10   Designated development
(cf previous s 77A)
(1)  Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations.
(2)  Designated development does not include State significant development despite any such declaration.
4.11   The development consent process—the main steps
(cf previous s 78)
The main steps in the development consent process are set out in sections 4.12–4.18 and in the regulations made for the purposes of this Part.
4.12   Application
(cf previous s 78A)
(1)  A person may, subject to the regulations, apply to a consent authority for consent to carry out development.
Note.
 Section 380AA of the Mining Act 1992 provides that an application for development consent to mine for coal can only be made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned.
(2)  A single application may be made in respect of one or more of the types of development referred to in paragraphs (a)–(f) of the definition of development in section 1.5 (1).
(3)  If the consent authority is a council, a person (other than the Crown or a person acting on behalf of the Crown) may, in the same development application, apply for development consent and approval for anything that requires approval under the following provisions of the Table to section 68 of the Local Government Act 1993, namely:
paragraph 1 of Part A
paragraph 1–6 of Part B
paragraph 1–5 of Part C
paragraph 1 of Part E
paragraph 1–5 or 10 of Part F.
(4)  In determining a development application to which subsection (3) applies, the council may apply any of the provisions of or under the Local Government Act 1993 that it could apply if the development application were an application under that Act for the relevant approval. In particular, if development consent is granted, the council may impose a condition that is authorised under that Act to be imposed as a condition of an approval.
(5)  If development consent is granted to a development application to which subsection (3) applies, the council is taken to have granted the relevant approval under the Local Government Act 1993 that authorises the activity, but that Act has no application to the approval so taken to have been granted.
(6)  In granting development consent to a development application to which subsection (3) applies, the council may, without limiting any other condition it may impose, impose, in relation to the approval taken to have been granted under the Local Government Act 1993, either or both of the following conditions:
(a)  a condition that the approval is granted only to the applicant and does not attach to or run with the land to which it applies,
(b)  a condition that the approval is granted for a specified time.
(6A)  A reference to a council in subsections (3)–(6) includes a reference to a Sydney district or regional planning panel, or a local planning panel or delegate, that has the function of determining the development application.
(7)  A development application cannot be made in respect of land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987) unless any consent to the development required under that Act has been obtained.
(8)  A development application for State significant development or designated development is to be accompanied by an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations.
(8A)    (Repealed)
(9)  The regulations may specify other things that are required to be submitted with a development application.
4.13   Consultation and concurrence
(cf previous s 79B)
(1) General If, by an environmental planning instrument, the consent authority, before determining the development application, is required to consult with or to obtain the concurrence of a person, the consent authority must, in accordance with the environmental planning instrument and the regulations, consult with or obtain the concurrence of the person, unless the consent authority determines to refuse to grant development consent.
(2)  However, if, by an environmental planning instrument, the Minister, before determining a development application, is required to obtain the concurrence of a person, the Minister is required only to consult with the person.
(2A) State significant development—exclusion This section does not apply to State significant development unless the requirement of an environmental planning instrument for consultation or concurrence specifies that it applies to State significant development.
(3)–(7)    (Repealed)
(8) Granting or refusal of concurrence A person whose concurrence to development is required may:
(a)  grant concurrence to the development, either unconditionally or subject to conditions, or
(b)  refuse concurrence to the development.
In deciding whether to grant concurrence, the person must take into consideration only the matters stated pursuant to section 3.18 (3) and applicable to the development.
(8A), (8B)    (Repealed)
(9) Giving effect to concurrence A consent authority that grants consent to the carrying out of development for which a concurrence has been granted must grant the consent subject to any conditions of the concurrence. This does not affect the right of the consent authority to impose conditions under section 4.17 not inconsistent with the conditions of the concurrence or to refuse consent.
(10) Avoidance of consents subject to concurrence If, by an environmental planning instrument, a development application may not be determined by the granting of consent without the concurrence of a specified person, a consent granted:
(a)  without that concurrence, or
(b)  not subject to any conditions of the concurrence,
is, subject to sections 4.60–4.62, voidable.
(11)  However, if the specified person fails to inform the consent authority of the decision concerning concurrence within the time allowed for doing so, the consent authority may determine the development application without the concurrence of the specified person and a development consent so granted is not voidable on that ground.
(12)  Nothing in this section affects any liability of a consent authority in respect of a consent granted as referred to in subsection (10) (a) or (b).
4.14   Consultation and development consent—certain bush fire prone land
(cf previous s 79BA)
(1)  Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land (being land for the time being recorded as bush fire prone land on a relevant map certified under section 10.3 (2)) unless the consent authority:
(a)  is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or
(b)  has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.
(1A)  If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire.
(1B)  This section does not apply to State significant development.
(1C)  The regulations may exclude development from the application of this section subject to compliance with any requirements of the regulations. The regulations may (without limiting the requirements that may be made):
(a)  require the issue of a certificate by the Commissioner of the NSW Rural Fire Service or other qualified person in relation to the bush fire risk of the land concerned, and
(b)  authorise the payment of a fee for the issue of any such certificate.
(2)  In this section:
special fire protection purpose has the same meaning as it has in section 100B of the Rural Fires Act 1997.
4.15   Evaluation
(cf previous s 79C)
(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a)  the provisions of:
(i)  any environmental planning instrument, and
(ii)  any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii)  any development control plan, and
(iiia)  any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and
(iv)  the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
(v)    (Repealed)
that apply to the land to which the development application relates,
(b)  the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c)  the suitability of the site for the development,
(d)  any submissions made in accordance with this Act or the regulations,
(e)  the public interest.
(2) Compliance with non-discretionary development standards—development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority:
(a)  is not entitled to take those standards into further consideration in determining the development application, and
(b)  must not refuse the application on the ground that the development does not comply with those standards, and
(c)  must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,
and the discretion of the consent authority under this section and section 4.16 is limited accordingly.
(3)  If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards:
(a)  subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and
(b)  a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.
Note.
 The application of non-discretionary development standards to complying development is dealt with in section 4.28 (3) and (4).
(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a)  if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and
(b)  if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c)  may consider those provisions only in connection with the assessment of that development application.
In this subsection, standards include performance criteria.
(4) Consent where an accreditation is in force A consent authority must not refuse to grant consent to development on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.
(5)  A consent authority and an employee of a consent authority do not incur any liability as a consequence of acting in accordance with subsection (4).
(6) Definitions In this section:
(a)  reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and
(b)  non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.
4.16   Determination
(cf previous s 80)
(1) General A consent authority is to determine a development application by:
(a)  granting consent to the application, either unconditionally or subject to conditions, or
(b)  refusing consent to the application.
(2)  Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.
(3) “Deferred commencement” consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.
(4) Total or partial consent A development consent may be granted:
(a)  for the development for which the consent is sought, or
(b)  for that development, except for a specified part or aspect of that development, or
(c)  for a specified part or aspect of that development.
(5)  The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development.
Note.
 See also Division 4.4 for special procedures concerning concept development applications.
(6) Restrictions on determination of development applications involving PAC If a consent authority (other than the Minister) has received notice that the Minister has requested that a review (with or without a public hearing) be conducted by the Independent Planning Commission in relation to all or any part of the development the subject of a development application, the consent authority must not determine the development application until:
(a)  the review has been conducted, and
(b)  the consent authority has considered the findings and recommendations of the Independent Planning Commission and any comments made by the Minister that accompanied those findings and recommendations when they were forwarded to the consent authority.
(7)  If the Minister has requested that a review (with or without a public hearing) be conducted by the Independent Planning Commission in relation to all or any part of the development the subject of a development application for which the Minister is the consent authority, the Minister must not determine the development application until:
(a)  the review has been conducted, and
(b)  the Minister has considered the findings and recommendations of the Independent Planning Commission.
(8)    (Repealed)
(9) Restrictions on determination of development applications for designated development A consent authority must not determine a development application for designated development:
(a)  until after the submission period (within the meaning of Schedule 1) has expired, or
(b)  if a submission is made with respect to the application within the submission period, until after 21 days following the date on which a copy of the submission is forwarded to the Planning Secretary have expired.
(10)  Subsection (9) (b) does not apply:
(a)  to a consent authority being the Minister or the Planning Secretary, or
(b)  if the Planning Secretary has waived the requirement that submissions be forwarded to the Planning Secretary for a specified development application or for a specified class of development applications.
(10A)    (Repealed)
(11) Other restrictions on determination of development applications The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined.
(12) Effect of issuing construction certificate If a consent authority or an accredited certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55).
(13), (14)    (Repealed)
4.17   Imposition of conditions
(cf previous s 80A)
(1) Conditions—generally A condition of development consent may be imposed if:
(a)  it relates to any matter referred to in section 4.15 (1) of relevance to the development the subject of the consent, or
(b)  it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates, or
(c)  it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or
(d)  it limits the period during which development may be carried out in accordance with the consent so granted, or
(e)  it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or
(f)  it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15 (1) applicable to the development the subject of the consent, or
(g)  it modifies details of the development the subject of the development application, or
(h)  it is authorised to be imposed under section 4.16 (3) or (5), subsections (5)–(9) of this section or section 7.11, 7.12, 7.24 or 7.32.
(2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.
(3)  A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 97, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect.
(4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following:
(a)  one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,
(b)  clear criteria against which achievement of the outcome or objective must be assessed.
(4A) Conditions replaced by other legislative controls A development consent for the carrying out of development may be granted subject to specified conditions that cease to have effect on the issue of an authorisation under another Act relating to that development (or any part of it) if the consent authority is satisfied that the matters regulated by those conditions will be adequately addressed by such an authorisation when it is issued. The regulations may restrict the imposition of any such condition.
(4B) Conditions relating to financial assurance A development consent may be granted subject to a condition of a kind described in Part 9.4 of the Protection of the Environment Operations Act 1997 to secure or guarantee funding for or towards the carrying out of works or programs required by or under the consent. The regulations may restrict the imposition of any such condition and may make provisions with respect to any such condition of the kind set out in that Part (including in relation to the calling on and use of any financial assurance).
(5) Modification or surrender of consents or existing use rights If a consent authority imposes (as referred to in subsection (1) (b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11, the consent or right may be modified or surrendered subject to and in accordance with the regulations.
(6) Conditions and other arrangements concerning security A development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of any one or more of the following:
(a)  making good any damage caused to any property of the consent authority (or any property of the Planning Ministerial Corporation) as a consequence of the doing of anything to which the consent relates,
(b)  completing any public work (such as road work, kerbing and guttering, footway construction, stormwater drainage and environmental controls) required in connection with the consent,
(c)  remedying any defects in any such public work that arise within 6 months after the work is completed,
(d)  in relation to coastal protection works (within the meaning of the Coastal Management Act 2016), either or both of the following:
(i)  the maintenance of the works,
(ii)  the restoration of a beach, or land adjacent to the beach, if any increased erosion of the beach or adjacent land is caused by the presence of the works.
(7)  The security is to be for such reasonable amount as is determined by the consent authority.
(8)  The security may be provided, at the applicant’s choice, by way of:
(a)  deposit with the consent authority, or
(b)  a guarantee satisfactory to the consent authority.
(9)  The security is to be provided before carrying out any work in accordance with the development consent or at such other time as may be agreed to by the consent authority.
(10)  The funds realised from a security may be paid out to meet any cost referred to in subsection (6). Any balance remaining is to be refunded to, or at the direction of, the persons who provided the security.
(10A)    (Repealed)
(10B) Review of extended hours of operation and number of persons permitted A development consent that is granted subject to a reviewable condition may be granted subject to a further condition that the consent authority may review that condition at any time or at intervals specified by the consent and that the reviewable condition may be changed on any such review.
(10C)  The regulations may make provision for or with respect to the kinds of development that may be subject to a further condition referred to in subsection (10B), the matters that must be included in such a condition and the procedures for a review under such a condition.
(10D)  A decision by a consent authority to change a reviewable condition on a review is taken to be a determination of a development consent for the purposes of this Act.
Note.
 Accordingly, an application for review or appeal under Part 8 may be made in relation to a decision to change a reviewable condition.
(10E)  For the purposes of subsections (10B)–(10D), a reviewable condition means any of the following:
(a)  a condition that permits extended hours of operation (in addition to other specified hours of operation),
(b)  a condition that increases the maximum number of persons permitted in a building (in addition to the maximum number otherwise permitted).
(11) Prescribed conditions A development consent is subject to such conditions as may be prescribed by the regulations.
Note.
 Section 6.16 (2) provides that a condition of consent has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development.
4.18   Post-determination notification
(cf previous s 81)
(1)  The consent authority must, in accordance with the regulations, notify its determination of a development application to:
(a)  the applicant, and
(b)  in the case of a development application for consent to carry out designated development, each person who made a submission under Schedule 1, and
(c)  such other persons as are required by the regulations to be notified of the determination of the development application.
(2)  If the consent authority is not the council, the consent authority must notify the council of its determination.
(3)  In the case of a development application for consent to carry out designated development, the consent authority must also notify each person who made a submission under Schedule 1 by way of objection of the person’s rights to appeal against the determination and of the applicant’s rights to appeal against the determination.
(4)  For the purposes of this section, designated development includes State significant development that would be designated development but for section 4.10 (2).
4.19   Consent for erection of building authorises use of building
(cf previous s 81A)
A development consent that authorises the erection of a building (but not the use of the building once erected) is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose was specified in the application for development consent. This section does not authorise the occupation of such a building if Part 6 requires an occupation certificate to be issued.
4.20   Date from which development consent has effect
(cf previous s 83)
(1)  A development consent has effect on and from the date it is registered on the NSW planning portal, except as provided by subsection (2).
(2)  A development consent for designated development has effect on and from the end of 28 days after the date it is registered on the NSW planning portal unless:
(a)  the development consent was granted following a public hearing by the Independent Planning Commission, or
(b)  the development is State significant development.
Note.
 The date of effect of a consent for any such designated development is delayed by the period within which an objector may appeal to the Land and Environment Court against the grant of consent.
(3)  This section is subject to Part 8 (Reviews and appeals).
Division 4.4 Concept development applications
4.21   Application of this Division
(cf previous s 83A)
This Division applies to concept development applications and to consents granted on the determination of those applications.
4.22   Concept development applications
(cf previous s 83B)
(1)  For the purposes of this Act, a concept development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications.
(2)  In the case of a staged development, the application may set out detailed proposals for the first stage of development.
(3)  A development application is not to be treated as a concept development application unless the applicant requests it to be treated as a concept development application.
(4)  If consent is granted on the determination of a concept development application, the consent does not authorise the carrying out of development on any part of the site concerned unless:
(a)  consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or
(b)  the concept development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.
The terms of a consent granted on the determination of a concept development application are to reflect the operation of this subsection.
(5)  The consent authority, when considering under section 4.15 the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications.
Note.
 The proposals for detailed development of the site will require further consideration under section 4.15 when a subsequent development application is lodged (subject to subsection (2)).
4.23   Concept development applications as alternative to DCP required by environmental planning instruments
(cf previous s 83C)
(1)  An environmental planning instrument cannot require the making of a concept development application before development is carried out.
(2)  However, if an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, that obligation may be satisfied by the making and approval of a concept development application in respect of that land.
Note.
 Section 3.44 (5) also authorises the making of a development application where the relevant planning authority refuses to make, or delays making, a development control plan.
(3)  Any such concept development application is to contain the information required to be included in the development control plan by the environmental planning instrument or the regulations.
4.24   Status of concept development applications and consents
(cf previous s 83D)
(1)  The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a concept development application and a development consent granted on the determination of any such application.
(2)  While any consent granted on the determination of a concept development application for a site remains in force, the determination of any further development application in respect of the site cannot be inconsistent with the consent for the concept proposals for the development of the site.
(3)  Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a concept development application.
Note.
 See section 4.53 (2) which prevents a reduction in the 5-year period of a development consent.
Division 4.5 Complying development
4.25   Application of this Division
(cf previous s 84)
This Division applies to complying development.
4.26   Carrying out of complying development
(cf previous s 84A)
(1)  A person may carry out complying development on land if:
(a)  the person has been issued with a complying development certificate for the development, and
(b)  the development is carried out in accordance with:
(i)  the complying development certificate, and
(ii)  any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued.
(2)  An application for a complying development certificate may be made:
(a)  by the owner of the land on which the development is proposed to be carried out, or
(b)  by any other person, with the consent of the owner of that land.
(3)  The regulations may provide for the procedures for making an application, the fees payable in connection with an application and the procedures for dealing with an application.
(4)    (Repealed)
(5)  Nothing in this Division prevents a consent authority from considering and determining a development application for the carrying out of complying development.
4.27   What is a “complying development certificate”?
(cf previous s 85)
(1) Terms of complying development certificate A complying development certificate is a certificate:
(a)  that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and
(b)  in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia.
(2)  A complying development certificate may indicate different classifications for different parts of the same building.
Note.
 To the extent to which it deals with the classification of a proposed building, a complying development certificate under this Division replaces the statement of classification formerly issued under the regulations under the Local Government Act 1993.
(3) Erection of buildings A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 6.9.
Note.
 Section 6.9 prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.
(4) Subdivision of land A complying development certificate that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems.
Note.
 A plan of subdivision cannot be registered under the Conveyancing Act 1919 unless a subdivision certificate has been issued for the subdivision.
(5) Other requirements for complying development certificates The regulations:
(a)  may impose other requirements concerning the issue of complying development certificates, and
(b)  may provide for the form in which a complying development certificate is to be issued.
(5A)  A complying development certificate has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development.
(6)  For the purposes of this section, development standard includes a provision of a development control plan that would be a development standard, within the meaning of section 1.4, if the provision were in an environmental planning instrument.
4.28   Process for obtaining complying development certificates
(cf previous s 85A)
(1)  An applicant may, in accordance with the regulations, apply to a council or accredited certifier for a complying development certificate.
(2)  The regulations may specify the kind of development for which an accredited certifier is not authorised to issue a complying development certificate.
(3) Evaluation The council or accredited certifier must consider the application and determine:
(a)  whether or not the proposed development is complying development, and
(b)  whether or not the proposed development complies with the relevant development standards, and
(c)  if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions.
(4)  A council or accredited certifier must not refuse to issue a complying development certificate on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.
(5)  A council, an employee of a council and an accredited certifier do not incur any liability as a consequence of acting in accordance with subsection (4).
(6) Determination The council or an accredited certifier may determine an application:
(a)  by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or
(b)  by refusing to issue a complying development certificate.
Note.
 Part 8 provides that there is no right of review or appeal in relation to a determination of, or a failure to determine, an application for a complying development certificate.
(7)  The council or an accredited certifier must not refuse to issue a complying development certificate if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the regulations relating to the issue of a complying development certificate.
(8)  The determination of an application by the council or accredited certifier must be completed within the period prescribed by the regulations (or such longer period as may be agreed to by the applicant) after lodgment of the application.
(9)  In determining the application, the council or the accredited certifier must impose a condition that is required to be imposed under Division 7.1 in relation to the complying development.
(9A) “Deferred commencement” certificate A complying development certificate may be granted subject to a condition that the certificate is not to operate until the applicant satisfies the council or certifier who issued the certificate, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.
(10)    (Repealed)
(10A) Payment of long service levy Where a council or accredited certifier completes a complying development certificate, that certificate is not to be forwarded or delivered to the applicant, unless any long service levy payable under section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) has been paid.
(11) Post-determination notification On the determination of an application for the issue of a complying development certificate:
(a)  the council or accredited certifier must notify the applicant of the determination, and
(b)  the accredited certifier must notify the council of the determination, and
(c)  if the determination is to issue a complying development certificate, the council or accredited certifier must notify any other person, if required to do so by the regulations, in accordance with the regulations.
(12)  For the purposes of subsection (7), development standard includes a provision of a development control plan that would be a development standard, within the meaning of section 1.4, if the provision were in an environmental planning instrument.
4.29   Duration of complying development certificate
(cf previous s 86A)
(1)  A complying development certificate becomes effective and operates from the date endorsed on the certificate.
(2)  A complying development certificate lapses 5 years after the date endorsed on the certificate.
(3)  However, a complying development certificate does not lapse if the development to which it relates is physically commenced on the land to which the certificate applies within the period of 5 years after the date endorsed on the certificate.
(4)  No proceedings may be taken before a court or tribunal to extend the 5-year period.
4.30   Modification of complying development
(cf previous s 87)
(1)  A person who has made an application to carry out complying development and a person having the benefit of a complying development certificate may apply to modify the development the subject of the application or certificate.
(2)  This Division applies to an application to modify development in the same way as it applies to the original application.
4.31   Validity of complying development certificate
Without limiting the powers of the Court under section 9.46 (1), the Court may by order under that section declare that a complying development certificate is invalid if:
(a)  proceedings for the order are brought within 3 months after the issue of the certificate, and
(b)  the certificate authorises the carrying out of development for which the Court determines that a complying development certificate is not authorised to be issued.
Division 4.6 Crown development
4.32   Definitions
(cf previous s 88)
(1)  In this Division:
applicable regional panel for development means the Sydney district or regional planning panel for the part of the State in which the development is to be carried out.
Crown development application means a development application made by or on behalf of the Crown.
(2)  A reference in this Division to the Crown:
(a)  includes a reference to a person who is prescribed by the regulations to be the Crown for the purposes of this Division, and
(b)  does not include a reference to:
(i)  a capacity of the Crown that is prescribed by the regulations not to be the Crown for the purposes of this Division, or
(ii)  a person who is prescribed by the regulations not to be the Crown for the purposes of this Division.
4.33   Determination of Crown development applications
(cf previous s 89)
(1)  A consent authority (other than the Minister) must not:
(a)  refuse its consent to a Crown development application, except with the approval of the Minister, or
(b)  impose a condition on its consent to a Crown development application, except with the approval of the applicant or the Minister.
(2)  If the consent authority fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the consent authority may refer the application:
(a)  to the Minister, if the consent authority is not a council, or
(b)  to the applicable regional panel, if the consent authority is a council.
(2A)  A Crown development application for which the consent authority is a council must not be referred to the Minister unless it is first referred to the applicable regional panel.
(3)  An applicable regional panel to which a Crown development application is referred may exercise the functions of the council as a consent authority (subject to subsection (1)) with respect to the application.
(4)  A decision by a regional panel in determining a Crown development application is taken for all purposes to be the decision of the council.
(5)  If an applicable regional panel fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the panel may refer the application to the Minister.
(6)  The party that refers an application under this section must notify the other party in writing that the application has been referred.
(7)  When an application is referred under this section to an applicable regional panel or the Minister, the consent authority must, as soon as practicable, submit to the panel or the Minister:
(a)  a copy of the development application, and
(b)  details of its proposed determination of the development application, and
(c)  the reasons for the proposed determination, and
(d)  any relevant reports of another public authority.
(8)  An application may be referred by a consent authority or applicable regional panel before the end of a relevant period referred to in subsection (2) or (5).
4.34   Directions by Minister
(cf previous s 89A)
(1)  On a referral being made by a consent authority or an applicable regional panel, or an applicant, to the Minister under this Division, the Minister may direct the relevant consent authority, within the time specified in the direction:
(a)  to approve the Crown development application, with or without specified conditions, or
(b)  to refuse the Crown development application.
(2)  A consent authority must comply with a direction by the Minister.
(3)  If the consent authority fails to comply, the consent authority is taken, on the last date for compliance specified in the direction, to have determined the Crown development application in accordance with the Minister’s direction.
(4)  Despite subsection (2), a consent authority may vary a condition specified by the Minister with the approval of the applicant.
4.35   Modification of Crown development consents
(cf previous s 89B)
This Division applies to an application made by or on behalf of the Crown under section 4.55 in the same way as it applies to an application for development consent.
Division 4.7 State significant development
4.36   Development that is State significant development
(cf previous s 89C)
(1)  For the purposes of this Act, State significant development is development that is declared under this section to be State significant development.
(2)  A State environmental planning policy may declare any development, or any class or description of development, to be State significant development.
(3)  The Minister may, by a Ministerial planning order, declare specified development on specified land to be State significant development, but only if the Minister has obtained and made publicly available advice from the Independent Planning Commission about the State or regional planning significance of the development.
Editorial note.
 For orders under this subsection, see the Historical notes at the end of this Act.
(4)  A State environmental planning policy that declares State significant development may extend the provisions of the policy relating to that development to State significant development declared under subsection (3).
Note.
 See section 5.12 (6) and (7) in relation to development that is, but for those provisions, both State significant development and State significant infrastructure.
4.37   Staged State significant development
(cf previous s 89D)
If a concept development application is made in respect of State significant development:
(a)  the consent authority may determine that a subsequent stage of the development is to be determined by the relevant council as consent authority, and
(b)  that stage of the development ceases to be State significant development and that council becomes the consent authority for that stage of the development.
4.38   Consent for State significant development
(cf previous s 89E)
(1)  The consent authority is to determine a development application in respect of State significant development by:
(a)  granting consent to the application with such modifications of the proposed development or on such conditions as the consent authority may determine, or
(b)  refusing consent to the application.
Note.
 Section 380AA of the Mining Act 1992 provides that an application in respect of State significant development for the mining of coal can only be determined if it is made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned.
(2)  Development consent may not be granted if the development is wholly prohibited by an environmental planning instrument.
(3)  Development consent may be granted despite the development being partly prohibited by an environmental planning instrument.
(4)  If part of a single proposed development that is State significant development requires development consent to be carried out and the other part may be carried out without development consent:
(a)  Division 5.1 does not apply to that other part of the proposed development, and
(b)  that other part of the proposed development is taken to be development that may not be carried out except with development consent.
(5)  A development application in respect of State significant development that is wholly or partly prohibited may be considered in accordance with Division 3.5 in conjunction with a proposed environmental planning instrument to permit the carrying out of the development. The Planning Secretary may (despite anything to the contrary in section 3.32) undertake the functions of the planning proposal authority under Part 3 for a proposed instrument if it is initiated for the purpose of permitting the carrying out of the development (whether or not it contains other provisions).
(6)  If the determination under section 3.34 (Gateway determination) for a planning proposal declares that the proposed instrument is principally concerned with permitting the carrying out of State significant development that would otherwise be wholly prohibited:
(a)  the proposed instrument may be made only by the Independent Planning Commission under a delegation from the Minister, and
(b)  the development application for the carrying out of that development may be determined only by the Independent Planning Commission under a delegation from the Minister.
4.39   Regulations—State significant development
(cf previous s 89G)
In addition to any other matters for or with respect to which regulations may be made under this Part, the regulations may make provision for or with respect to the procedures and other matters concerning State significant development, including the following:
(a)  the environmental impact statements to accompany development applications in respect of State significant development,
(b)  the requirements for the preparation of those environmental impact statements, including consultation requirements with respect to government agencies and other affected persons,
(c)  the making of orders under section 4.36 (3) declaring specified development to be State significant development,
(d)  the making of information publicly available relating to development applications in respect of State significant development and the determination of those applications,
(e)  requiring applicants to provide responses to submissions made on development applications in respect of State significant development.
4.40   Evaluation of development application (s 4.15)
(cf previous s 89H)
Section 4.15 applies, subject to this Division, to the determination of the development application.
4.41   Approvals etc legislation that does not apply
(cf previous s 89J)
(1)  The following authorisations are not required for State significant development that is authorised by a development consent granted after the commencement of this Division (and accordingly the provisions of any Act that prohibit an activity without such an authority do not apply):
(a)    (Repealed)
(b)  a permit under section 201, 205 or 219 of the Fisheries Management Act 1994,
(c)  an approval under Part 4, or an excavation permit under section 139, of the Heritage Act 1977,
(d)  an Aboriginal heritage impact permit under section 90 of the National Parks and Wildlife Act 1974,
(e)    (Repealed)
(f)  a bush fire safety authority under section 100B of the Rural Fires Act 1997,
(g)  a water use approval under section 89, a water management work approval under section 90 or an activity approval (other than an aquifer interference approval) under section 91 of the Water Management Act 2000.
(2)  Division 8 of Part 6 of the Heritage Act 1977 does not apply to prevent or interfere with the carrying out of State significant development that is authorised by a development consent granted after the commencement of this Division.
(3)  A reference in this section to State significant development that is authorised by a development consent granted after the commencement of this Division includes a reference to any investigative or other activities that are required to be carried out for the purpose of complying with any environmental assessment requirements under this Part in connection with a development application for any such development.
4.42   Approvals etc legislation that must be applied consistently
(cf previous s 89K)
(1)  An authorisation of the following kind cannot be refused if it is necessary for carrying out State significant development that is authorised by a development consent under this Division and is to be substantially consistent with the consent:
(a)  an aquaculture permit under section 144 of the Fisheries Management Act 1994,
(b)  an approval under section 15 of the Mine Subsidence Compensation Act 1961,
(c)  a mining lease under the Mining Act 1992,
Note.
 Under section 380A of the Mining Act 1992, a mining lease can be refused on the ground that the applicant is not a fit and proper person, despite this section.
(d)  a production lease under the Petroleum (Onshore) Act 1991,
Note.
 Under section 24A of the Petroleum (Onshore) Act 1991, a production lease can be refused on the ground that the applicant is not a fit and proper person, despite this section.
(e)  an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997 (for any of the purposes referred to in section 43 of that Act),
(f)  a consent under section 138 of the Roads Act 1993,
(g)  a licence under the Pipelines Act 1967.
(2)  This section does not apply to or in respect of:
(a)  an application for the renewal of an authorisation or a renewed authorisation, or
(b)  an application for a further authorisation or a further authorisation following the expiry or lapsing of an authorisation, or
(c)  in the case of an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997—any period after the first review of the licence under section 78 of that Act.
(3)  A reference in this section to an authorisation or development consent includes a reference to any conditions of the authorisation or consent.
(4)  This section applies to a person, court or tribunal that deals with an objection, appeal or review conferred on a person in relation to an authorisation in the same way as it applies to the person giving the authorisation.
4.43   This Division prevails
(cf previous s 89L)
The provisions of this Division, the regulations under this Division and any other provisions of or made under this Act with respect to State significant development prevail to the extent of any inconsistency with any other provisions of or made under this Act relating to development to which this Part applies.
Division 4.8 Integrated development
4.44   Application of this Division
(cf previous s 90)
(1)  This Division applies to integrated development.
(2)  However, this Division does not apply to development the subject of a development application made by or on behalf of the Crown (within the meaning of Division 4.6), other than development that requires a heritage approval.
4.45   Definitions
(cf previous s 90A)
In this Division:
approval means a consent, licence, permit, permission or any form of authorisation.
approval body means a person who may grant an approval.
first renewal of an approval means, in the case of an environment protection licence under the Protection of the Environment Operations Act 1997, the first review of the licence under section 78.
grant an approval includes give or issue an approval.
heritage approval means an approval in respect of the doing or carrying out of an act, matter or thing referred to in section 57 (1) of the Heritage Act 1977.
4.46   What is “integrated development”?
(cf previous s 91)
(1)  Integrated development is development (not being State significant development or complying development) that, in order for it to be carried out, requires development consent and one or more of the following approvals:
Act
Provision
Approval
s 22
approval to alter or erect improvements, or to subdivide land, within a mine subsidence district
s 144
aquaculture permit
 
s 201
permit to carry out dredging or reclamation work
 
s 205
permit to cut, remove, damage or destroy marine vegetation on public water land or an aquaculture lease, or on the foreshore of any such land or lease
 
s 219
permit to:
(a)  set a net, netting or other material, or
(b)  construct or alter a dam, floodgate, causeway or weir, or
(c)  otherwise create an obstruction,
     across or within a bay, inlet, river or creek, or across or around a flat
s 58
approval in respect of the doing or carrying out of an act, matter or thing referred to in s 57 (1)
ss 63, 64
grant of mining lease
s 90
grant of Aboriginal heritage impact permit
s 16
grant of production lease
ss 43 (a), 47 and 55
Environment protection licence to authorise carrying out of scheduled development work at any premises.
 
ss 43 (b), 48 and 55
Environment protection licence to authorise carrying out of scheduled activities at any premises (excluding any activity described as a “waste activity” but including any activity described as a “waste facility”).
 
ss 43 (d), 55 and 122
Environment protection licences to control carrying out of non-scheduled activities for the purposes of regulating water pollution resulting from the activity.
s 138
consent to:
(a)  erect a structure or carry out a work in, on or over a public road, or
(b)  dig up or disturb the surface of a public road, or
(c)  remove or interfere with a structure, work or tree on a public road, or
(d)  pump water into a public road from any land adjoining the road, or
(e)  connect a road (whether public or private) to a classified road
s 100B
authorisation under section 100B in respect of bush fire safety of subdivision of land that could lawfully be used for residential or rural residential purposes or development of land for special fire protection purposes
ss 89, 90, 91
water use approval, water management work approval or activity approval under Part 3 of Chapter 3
(1A)  Development is integrated development in respect of a licence that may be granted under the Protection of the Environment Operations Act 1997 to control the carrying out of non-scheduled activities for the purpose of regulating water pollution only if:
(a)  the development application stipulates that an application for such a licence has been or will be made in respect of the development, or
(b)  the Environment Protection Authority notifies the consent authority in writing before the development application is granted or refused that an application for such a licence has been or may be made in respect of the development.
(2)  Development is not integrated development in respect of an Aboriginal heritage impact permit required under Part 6 of the National Parks and Wildlife Act 1974 unless:
(a)  an Aboriginal object referred to in that Part is known, immediately before the development application is made, to exist on the land to which the development application applies, or
(b)  the land to which the development application applies is an Aboriginal place within the meaning of that Act immediately before the development application is made.
(3)  Development is not integrated development in respect of the consent required under section 138 of the Roads Act 1993 if, in order for the development to be carried out, it requires the development consent of a council and the approval of the same council.
(4)  Development is not integrated development in respect of the approval required under section 57 of the Heritage Act 1977 if the approval that is required is the approval of a council.
4.47   Development that is integrated development
(cf previous s 91A)
(1)  This section applies to the determination of a development application for development that is integrated development.
(2)  Before granting development consent to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such approval if the consent authority determines to refuse to grant development consent.
(3)  A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purposes of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval.
(4)  If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application.
(4A)  The Planning Secretary may act on behalf of an approval body for the purposes of informing the consent authority under this section whether or not the approval body will grant the approval, or of the general terms of its approval, if:
(a)  the Planning Secretary is authorised to do so by the regulations because of the failure of the approval body to do so or because of an inconsistency in the general terms of approval of 2 or more approval bodies, and
(b)  the Planning Secretary has taken into consideration assessment requirements prescribed by the regulations as State assessment requirements.
The decision of the Planning Secretary is taken, for the purposes of this Division, to be the decision of the approval body, unless the approval body has informed the consent authority of its own decision on the matter.
(5)  If the approval body and the Planning Secretary fail to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval, or of the general terms of its approval:
(a)  the consent authority may determine the development application, and
(b)  if the consent authority determines the development application by granting consent:
(i)  the approval body cannot refuse to grant approval to an application for approval in respect of the development, and
(ii)  an approval granted by the approval body must not be inconsistent with the development consent, and
(iii)  section 4.50 applies to an approval so granted as if it were an approval the general terms of which had been provided to the consent authority,
despite any other Act or law.
Note.
 Under section 380A of the Mining Act 1992 and section 24A of the Petroleum (Onshore) Act 1991, a mining lease or production lease can be refused on the ground that the applicant is not a fit and proper person, despite this section.
(6)  If a development application is determined, whether or not by the granting of development consent, the consent authority must notify all relevant approval bodies of the determination.
Note.
 If a dispute arises under this section between a consent authority and an approval body, the dispute may be dealt with under section 10.2.
4.48   Consent authority may not refuse certain development applications
(cf previous s 92)
(1)  This section applies to the determination by a consent authority of a development application for development that is integrated development for which a heritage approval is required.
(2)  A consent authority must not refuse development consent on heritage grounds if the same development is the subject of a heritage approval.
4.49   Effect of giving notice
(cf previous s 92A)
If, in relation to integrated development:
(a)  notice of a development application is given under Schedule 1, and
(b)  the consent authority obtains from an approval body the general terms of any approval proposed to be granted by the approval body in relation to the development or the approval body fails to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval or of the general terms of its approval, and
(c)  the consent authority determines the application by granting consent,
the notice is taken to be notice duly given for the purpose of any law that requires the giving of public notice in relation to an application for the approval of the approval body to that development.
4.50   Granting and modification of approval by approval body
(cf previous s 93)
(1)  Despite any other Act or law, an approval body must, in respect of integrated development for which development consent has been granted following the provision by the approval body of the general terms of the approval proposed to be granted by the approval body in relation to the development, grant approval to any application for approval that is made within 3 years after the date on which the development consent is granted if, within that 3-year period, the development consent has not lapsed or been revoked.
Note.
 Under section 380A of the Mining Act 1992 and section 24A of the Petroleum (Onshore) Act 1991, a mining lease or production lease can be refused on the ground that the applicant is not a fit and proper person, despite this section.
(2)  The approval may be granted subject to conditions that are not inconsistent with the development consent. Neither the provisions of section 4.17 (6)–(10) nor the imposition of conditions as to security by the consent authority prevent an approval body from imposing conditions, or additional conditions, as to security.
(3)  Subsection (1) does not apply to or limit the granting of approval to an application for renewal of an approval.
(4)  An approval body cannot vary the terms of an approval granted for integrated development for which development consent has been granted before the expiration, lapsing or first renewal of the approval, whichever first occurs, other than to make variations that are not inconsistent with the development consent.
(5)  Subsection (4) does not prevent:
(a)  the modification, in accordance with section 4.55 or 4.57, of the development consent at any time, or
(b)  if a development consent is modified as referred to in paragraph (a) before the expiration, lapsing or first renewal, whichever first occurs, of the approval, the modification in accordance with law of the approval to any necessary consequential extent, or
(c)  the exercise by the approval body of any of its other functions, such as the issuing of orders, the suspension or cancellation of an approval or the prosecution of offences.
4.51   Effect of approval if the approval body is also a concurrence authority
(cf previous s 93A)
If the concurrence of a person who is also an approval body is required before a consent authority may grant a development consent, the granting of the general terms of its approval is taken to also grant the concurrence provided that the matters to be considered in granting the general terms of its approval are the same as those required to be considered in deciding whether or not to grant the concurrence.
4.52   Rights of appeal
(cf previous s 93B)
(1) Applicant’s appeal rights This Division does not affect any right of objection, appeal or review conferred on an applicant for an approval under the Act that provides for the granting of the approval, except as provided by subsection (2).
(2) Restriction on appellate body Despite any other Act or law, section 4.50 applies to a person, court or tribunal that deals with an objection, appeal or review referred to in this section in the same way as it applies to an approval body.
Division 4.9 Post-consent provisions
4.53   Lapsing of consent
(cf previous s 95)
(1)  A development consent lapses 5 years after the date from which it operates.
(2)  However, a consent authority may reduce that period of 5 years in granting development consent. This subsection does not apply to development consent granted to a concept development application under Division 4.4 for development that requires a subsequent development application and consent.
(3)  Such a reduction may not be made so as to cause:
(a)  a development consent to erect or demolish a building or to subdivide land to lapse within 2 years after the date from which the consent operates, or
(b)  a development consent of a kind prescribed by the regulations to lapse within the period prescribed by the regulations in relation to the consent.
(3A)  A reduction that has been made under subsection (2) is to be disregarded if:
(a)  the development consent operated before, and lapses after, the commencement of this subsection (or the development consent lapsed during the period commencing on 22 April 2010 and ending on the commencement of this subsection), or
(b)  the development consent operated before, and lapses after, a date after 1 July 2011 prescribed by the regulations.
A reduction may not be made under subsection (2) during the period commencing on the commencement of this subsection and ending on 1 July 2011 or during any subsequent period prescribed by the regulations.
(4)  Development consent for:
(a)  the erection of a building, or
(b)  the subdivision of land, or
(c)  the carrying out of a work,
does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.
(5)  Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse.
(6)  Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 4.16 (3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority, within the period so specified.
(7)  The regulations may set out circumstances in which work is or is not taken to be physically commenced for the purposes of this section.
4.54   Extension of lapsing period for 1 year
(cf previous s 95A)
(1)  If, in granting a development consent, the consent authority reduces the period after which the consent lapses to less than 5 years, the applicant or any other person entitled to act on the consent may apply to the consent authority, before the period expires, for an extension of 1 year.
(2)  The consent authority may grant the extension if satisfied that the applicant has shown good cause.
(3)    (Repealed)
(4)  An extension of 1 year granted under this section commences to run from the later of the following:
(a)  the date on which the consent would have lapsed but for the extension,
(b)  the date on which the consent authority granted the extension or, if the Court has allowed the extension in determining an appeal, the date on which the Court determined the appeal.
(5)  This section does not apply to complying development.
4.55   Modification of consents—generally
(cf previous s 96)
(1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6) and Part 8 do not apply to such a modification.
Note.
 Section 380AA of the Mining Act 1992 provides that an application for modification of development consent to mine for coal can only be made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned.
(1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a)  it is satisfied that the proposed modification is of minimal environmental impact, and
(b)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(c)  it has notified the application in accordance with:
(i)  the regulations, if the regulations so require, or
(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d)  it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1), (2) and (5) do not apply to such a modification.
(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c)  it has notified the application in accordance with:
(i)  the regulations, if the regulations so require, or
(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1) and (1A) do not apply to such a modification.
(3)  In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
(4)  The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
(5)    (Repealed)
(6) Deemed refusals The regulations may make provision for or with respect to the following:
(a)  the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent,
(b)  the effect of any such deemed determination on the power of a consent authority to determine any such application,
(c)  the effect of a subsequent determination on the power of a consent authority on any appeal sought under this Act.
(6A), (7)    (Repealed)
(8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A) (c) or subsection (2) (b) and (c) are to be exercised by the relevant consent authority and not the Court.
4.56   Modification by consent authorities of consents granted by the Court
(cf previous s 96AA)
(1)  A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if:
(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(b)  it has notified the application in accordance with:
(i)  the regulations, if the regulations so require, and
(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(c)  it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and
(d)  it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
(1A)  In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
(1B)    (Repealed)
(1C)  The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
(2)  After determining an application for modification of a consent under this section, the consent authority must send a notice of its determination to each person who made a submission in respect of the application for modification.
(3)  The regulations may make provision for or with respect to the following:
(a)  the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent,
(b)  the effect of any such deemed determination on the power of a consent authority to determine any such application,
(c)  the effect of a subsequent determination on the power of a consent authority on any appeal sought under this Act.
(4)    (Repealed)
4.57   Revocation or modification of development consent
(cf previous s 96A)
(1)  If at any time it appears to:
(a)  the Planning Secretary, having regard to the provisions of any proposed State environmental planning policy, or
(b)  a council (being the consent authority in relation to the development application referred to in this subsection), having regard to the provisions of any proposed local environmental plan,
that any development for which consent under this Division is in force in relation to a development application should not be carried out or completed, or should not be carried out or completed except with modifications, the Planning Secretary or council may, by instrument in writing, revoke or modify that consent.
(2)  This section applies to complying development for which a complying development certificate has been issued in the same way as it applies to development for which development consent has been granted and so applies to enable a council to revoke or modify a complying development certificate whether the certificate was issued by the council or by an accredited certifier.
(3)  Before revoking or modifying the consent, the Planning Secretary or council must:
(a)  by notice in writing inform, in accordance with the regulations:
(i)  each person who in the Planning Secretary’s or council’s opinion will be adversely affected by the revocation or modification of the consent, and
(ii)  such persons as may be prescribed by the regulations,
of the intention to revoke or modify the consent, and
(b)  afford each such person the opportunity of appearing before the Planning Secretary or council, or a person appointed by the Planning Secretary or council, to show cause why the revocation or modification should not be effected.
(4)  The revocation or modification of a development consent takes effect, subject to this section, from the date on which the instrument referred to in subsection (1) is served on the owner of the land to which the consent applies.
(5), (6)    (Repealed)
(7)  If a development consent is revoked or modified under this section, a person aggrieved by the revocation or modification is entitled to recover from:
(a)  the Government of New South Wales—if the Planning Secretary is responsible for the issue of the instrument of revocation or modification, or
(b)  the council—if the council is responsible for the issue of that instrument,
compensation for expenditure incurred pursuant to the consent during the period between the date on which the consent becomes effective and the date of service of the notice under subsection (3) which expenditure is rendered abortive by the revocation or modification of that consent.
(8)  The Planning Secretary or council must, on or as soon as practicable after the date on which the instrument referred to in subsection (1) is served on the owner of the land referred to in subsection (4), cause a copy of the instrument to be sent to each person who is, in the Planning Secretary’s or council’s opinion, likely to be disadvantaged by the revocation or modification of the consent.
(9)  This section does not apply to or in respect of a consent granted by the Court or by the Minister.
Division 4.10 Miscellaneous Part 4 provisions
4.58   Register of consents and certificates
(cf previous s 100)
(1)  A council must, in the prescribed form and manner (if any), keep a register of:
(a)  applications for development consent, and
(b)  the determination of applications for development consent (including the terms of development consents granted under this Part), and
(c)  the determination of applications for complying development certificates (including the terms of complying development certificates issued under this Part), and
(d)  decisions on appeal from any determination made under this Part.
(2)  The register is to be available for public inspection, without charge, at the office of the council during ordinary office hours.
4.59   Validity of development consents and complying development certificates
(cf previous s 101)
If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or a certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.
4.60   Non-compliance with certain provisions regarding State significant development
(cf previous s 102)
(1)  This section applies to a development consent granted, or purporting to be granted, by the Minister, before or after the commencement of this section.
(2)  The only requirements of this Act that are mandatory in connection with the validity of a development consent to which subsection (1) applies are as follows:
(a)  A requirement that a development application to carry out State significant development or designated development and its accompanying information be publicly exhibited for the minimum period of time.
(b)  A requirement that a development application to carry out development, being development, other than State significant development or designated development, to which some or all of the provisions of sections 4.25, 4.27, 86, 4.30 (1) and 4.44, as in force immediately before the commencement of this section, applied by virtue of an environmental planning instrument, as referred to in section 3.18 (4), as then in force, be publicly exhibited for the minimum period of time.
(c)    (Repealed)
4.61   Revocation or regrant of development consents after order of Court
(cf previous s 103)
(1)  This section applies to a development consent granted, or purporting to be granted, by a consent authority, to which an order of suspension applies under section 25B of the Land and Environment Court Act 1979.
(2)  The consent authority may revoke a development consent to which this section applies, whether or not the terms imposed by the Court under section 25B of the Land and Environment Court Act 1979 have been complied with.
(3)  However, if the terms imposed by the Court have been substantially complied with, the consent authority may revoke the development consent to which this section applies and grant a new development consent with such alterations to the revoked consent as the consent authority thinks appropriate having regard to the terms themselves and to any matters arising in the course of complying with the terms. Such a grant of a development consent is referred to as a regrant of the consent.
(4)  No preliminary steps need be taken with regard to the regrant of a development consent under this section, other than those that are required to secure compliance with those terms.
(5)  Section 4.18 and such other provisions of this Act as may be prescribed by the regulations apply to development consents regranted under this section.
4.62   Appeals and other provisions relating to development consents after order of Court
(cf previous s 104)
(1)  A development consent declared to be valid under section 25C of the Land and Environment Court Act 1979:
(a)  is final and the provisions of Part 8 do not apply to or in respect of it, and
(b)  is operative as from the date the development consent originally took effect or purported to take effect, unless the Court otherwise orders.
(2)  A development consent declared under section 25C of the Land and Environment Court Act 1979 to be validly regranted:
(a)  is final and the provisions of Part 8 do not apply to or in respect of it, and
(b)  takes effect from the date of the declaration or another date specified by the Court.
4.63   Voluntary surrender of development consent
(cf previous s 104A)
(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 an appeal under Part 8, the consent has ceased to be, or does not become, effective.
(3)  If a development consent is to be surrendered as a condition of a new development consent and the development to be authorised by that new development consent includes the continuation of any of the development authorised by the consent to be surrendered:
(a)  the consent authority is not required to re-assess the likely impact of the continued development to the extent that it could have been carried out but for the surrender of the consent, and
(b)  the consent authority is not required to re-determine whether to authorise that continued development under the new development consent (or the manner in which it is to be carried out), and
(c)  the consent authority may modify the manner in which that continued development is to be carried out for the purpose of the consolidation of the development consents applying to the land concerned.
In this subsection, a reference to a development consent that is to be surrendered includes a reference to the surrender of a development consent under section 4.17 (5) or the surrender of an approval given under Part 3A when that Part was in force or continued in operation.
4.64   Regulations—Part 4
(cf previous s 105)
(1)  In addition to any other matters for or with respect to which regulations may be made for the purposes of this Part, the regulations may make provision for or with respect to the following:
(a)  any matter that is necessary or convenient to be done before making a development application,
(b)  the persons who may make development applications,
(c)  the making, consideration and determination of development applications that are made by or on behalf of the Crown, public authorities and persons prescribed by the regulations,
(c1)  requiring the New South Wales Aboriginal Land Council to consent to applications for the modification of development consents relating to land owned by Local Aboriginal Land Councils,
(d)  the form of development applications,
(e)  the documents and information required to accompany development applications, including documents that will assist the consent authority in assessing the environmental effects of development,
(f)  the fees for development applications,
(f1)  the reimbursement of the costs incurred by councils in investigating and enforcing compliance with the requirements of this Act relating to development requiring consent (including complying development) by a levy on applicants making development applications and the procedures for the imposition and collection of the levies,
(f2)  authorising officers of a council to suspend the carrying out of work under a complying development certificate (for a period not exceeding 7 days) pending an investigation into compliance of the work with applicable development standards,
(g)  the notification and advertising of development applications (and proposed development),
(h)  the form and contents of notices of development applications, the manner of giving notices and the persons to whom notices are to be given,
(i)  the requirement for consultation with, or obtaining the concurrence of, the Planning Secretary, public authorities and other persons concerning proposed development,
(j)  the preparation, contents, form and submission of environmental impact statements and statements of environmental effects,
(k)  the documents and information required to accompany statements of environmental effects and environmental impact statements,
(l)  the making of submissions, by way of objection or otherwise, with respect to proposed development and the consideration of submissions,
(m)  the holding of inquiries into proposed development,
(n)    (Repealed)
(n1)  authorising a consent authority or council to impose a fee with respect to the lodging of any complying development certificate with it, whether pursuant to a requirement made by or under this Act or otherwise,
(o)  procedures concerning integrated development,
(p), (p1)    (Repealed)
(q)  the modification of development consents, including the fees for applications for modification,
(r)  the periods within which specified aspects of the environmental planning control process must be completed and the variation of those periods,
(s)  the effect of a failure to comply with any requirement of the regulations,
(t)  the notification of applicants and persons making submissions (including by way of objection) of the determination of development applications, reasons for the determinations and any rights of appeal.
(2)    (Repealed)
(3)  The regulations may provide for the accreditation of building products and systems, including the following:
(a)  applications for accreditation,
(b)  the determination of applications for accreditation,
(c)  revocation of accreditation,
(d)  extension or renewal of accreditation,
(e)  the adoption, application or incorporation (whether with or without modification) of a scheme of accreditation (however described) of building products and systems,
(f)  the notification of consent authorities of information concerning accreditation (including accreditation referred to in paragraph (e)).
(4)  The regulations may provide for the adoption and application of the Building Code of Australia.
(5)  The regulations may make provision for or with respect to the remission of part of the fees for development applications to the Planning Secretary for payment, in accordance with subsection (6), into the Building Professionals Board Fund established under the Building Professionals Act 2005.
(6)  The Planning Secretary is to pay into the Building Professionals Board Fund established under the Building Professionals Act 2005 such part of the fees for development applications remitted to the Planning Secretary:
(a)  as may be provided for in the regulations, or
(b)  subject to the regulations (if any), as the Minister directs to be paid into the Fund.
Division 4.11 Existing uses
4.65   Definition of “existing use”
(cf previous s 106)
In this Division, existing use means:
(a)  the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and
(b)  the use of a building, work or land:
(i)  for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and
(ii)  that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.
4.66   Continuance of and limitations on existing use
(cf previous s 107)
(1)  Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.
(2)  Nothing in subsection (1) authorises:
(a)  any alteration or extension to or rebuilding of a building or work, or
(b)  any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or
(c)  without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or
(d)  the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17 (1) (b), or
(e)  the continuance of the use therein mentioned where that use is abandoned.
(3)  Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.
4.67   Regulations respecting existing use
(cf previous s 108)
(1)  The regulations may make provision for or with respect to existing use and, in particular, for or with respect to:
(a)  the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and
(b)  the change of an existing use to another use, and
(c)  the enlargement or expansion or intensification of an existing use.
(d)    (Repealed)
(2)  The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.
(3)  An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.
(4)  Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 4.33 to a development application for consent to carry out prohibited development.
4.68   Continuance of and limitations on other lawful uses
(cf previous s 109)
(1)  Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.
(2)  Nothing in subsection (1) authorises:
(a)  any alteration or extension to or rebuilding of a building or work, or
(b)  any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or
(c)  without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or
(d)  the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17 (1) (b), or
(e)  the continuance of the use therein mentioned where that use is abandoned.
(3)  Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.
(4)    (Repealed)
4.69   Uses unlawfully commenced
(cf previous s 109A)
(1)  The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except:
(a)  the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor, or
(b)  the granting of development consent to that use.
(2)  The continuation of a use of a building, work or land that was unlawfully commenced is, and is taken always to have been, development of the land within the meaning of and for the purposes of any deemed environmental planning instrument applying, or which at any time applied, to or in respect of the building, work or land.
4.70   Saving of effect of existing consents
(cf previous s 109B)
(1)  Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.
(2)  This section:
(a)  applies to consents lawfully granted before or after the commencement of this Act, and
(b)  does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and
(c)  has effect despite anything to the contrary in section 4.66 or 4.68.
(3)  This section is taken to have commenced on the commencement of this Act.