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Contents (1979 - 203)
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Environmental Planning and Assessment Act 1979 No 203
Current version for 25 August 2017 to date (accessed 25 September 2017 at 23:41)
Part 4
Part 4 Development assessment
Division 1 Carrying out of development—the threefold classification
76   Development that does not need consent
(1) General If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies.
Note.
 Environmental assessment of the development may nevertheless be required under Part 5.
(2) Exempt development An environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development.
(3)  If development is exempt development:
(a)  the development may be carried out, in accordance with the instrument, on land to which the provision applies without the need for development consent, unless that land:
(i)  is a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 or declared critical habitat under Part 7A of the Fisheries Management Act 1994, or
(ii)  is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987), and
(b)  Part 5 does not apply to the development.
A provision made under subsection (2) has no effect at any time during which the land is land to which paragraph (a) (i) or (ii) applies.
76A   Development that needs consent
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a)  such a consent has been obtained and is in force, and
(b)  the development is carried out in accordance with the consent and the instrument.
(2)  For the purposes of subsection (1), development consent may be obtained:
(a)  by the making of a determination by a consent authority to grant development consent, or
(b)  in the case of complying development, by the issue of a complying development certificate.
(3), (4)    (Repealed)
(5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.
(6)–(9)    (Repealed)
Note.
 Division 4.1 makes provision with respect to State significant development.
76B   Development that is prohibited
If an environmental planning instrument provides that:
(a)  specified development is prohibited on land to which the provision applies, or
(b)  development cannot be carried out on land with or without development consent,
a person must not carry out the development on the land.
76C   Relationship of this Division to this Act
This Division is subject to the other provisions of this Act, unless express provision is made to the contrary.
Division 2 The procedures for development that needs consent
77   Application of Division
This Division:
(a)  applies to development that may not be carried out except with development consent, but
(b)  does not apply to complying development.
Note.
 Under this Part, the procedures by which development consent is obtained differ according to whether the development:
(a)  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 5).
77A   Designated development
(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.
78   The development consent process—the main steps
The main steps in the development consent process are set out in sections 78A–81 and in the regulations made for the purposes of this Part.
78A   Application
(1)  A person may, subject to the regulations, apply to a consent authority for consent to carry out development.
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 4 (1).
(3)  If the consent authority is a council, a person (other than the Crown or a person acting on behalf of the Crown) may, in the same development application, apply for development consent and approval for anything that requires approval under the following provisions of the Table to section 68 of the Local Government Act 1993, namely:
paragraph 1 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)  The functions of a council under subsections (3)–(6) in relation to a development application may be exercised by a local planning panel or delegate that has the function of determining the development application on behalf of the council.
(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.
79   Public participation—designated development
(1) Public exhibition and notification As soon as practicable after a development application is made for consent to carry out designated development, the consent authority must:
(a)  place the application and any accompanying information on public exhibition for a period of not less than 30 days (the submission period) commencing on the day after which notice of the application is first published as referred to in paragraph (d), and
(b)  give written notice of the application in accordance with the regulations:
(i)  to such persons as appear to it to own or occupy the land adjoining the land to which the development application relates, and
(ii)  if practicable, to such other persons as appear to it to own or occupy land the use or enjoyment of which, in its opinion, may be detrimentally affected if the designated development is carried out, and
(iii)  to such other persons as are required to be notified by the regulations, and
(c)  cause notice of the application to be exhibited in accordance with the regulations on the land to which the application relates, and
(d)  cause notice of the application to be published in accordance with the regulations in a newspaper circulating in the locality.
Note.
 Section 89F deals with public participation for State significant development.
(2)  If land is:
(a)  a lot within the meaning of the Strata Schemes (Freehold Development) Act 1973, a written notice to the owners corporation is taken to be a written notice under subsection (1) (b) to the owner or occupier of each lot within the strata scheme, or
(b)  a lot within the meaning of the Strata Schemes (Leasehold Development) Act 1986, a written notice to the lessor under the leasehold strata scheme concerned and to the owners corporation is taken to be a written notice under subsection (1) (b) to the owner or occupier of each lot within the scheme.
(3)  If land is owned or occupied by more than one person, a written notice to one owner or one occupier is taken to satisfy the requirements of subsection (1) (b).
(4) Inspection of application and accompanying information During the submission period, any person may inspect the development application and any accompanying information and make extracts from or copies of them.
(5) Making of submissions During the submission period, any person may make written submissions to the consent authority with respect to the development application. A submission by way of objection must set out the grounds of the objection.
(6) Circumstances in which public exhibition may be dispensed with If:
(a)  a development application for designated development is amended, or substituted, or withdrawn and later replaced before it has been determined by the consent authority, and
(b)  the consent authority has complied with subsections (1), (2) and (3) in relation to the original application, and
(c)  the consent authority is of the opinion that the amended, substituted or later application differs only in minor respects from the original application,
the consent authority may decide to dispense with further compliance with subsection (1) in relation to the amended, substituted or later application. In that event, compliance with subsection (1) in relation to the original application is taken to be compliance in relation to the amended, substituted or later application.
(7)  The consent authority must give written notice to the applicant of its decision under subsection (6) at or before the time notice of the determination of the development application is given under section 81.
79A   Public participation—advertised development and other notifiable development
(1)  Notice of a development application for consent to carry out advertised development is to be given in accordance with this Act, the regulations, the relevant environmental planning instrument and any relevant development control plan.
(2)  A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application.
(3)  This section does not apply to State significant development.
79B   Consultation and concurrence
(1) General If, by an environmental planning instrument, the consent authority, before determining the development application, is required to consult with or to obtain the concurrence of a person, the consent authority must, in accordance with the environmental planning instrument and the regulations, consult with or obtain the concurrence of the person, unless the consent authority determines to refuse to grant development consent.
(2)  However, if, by an environmental planning instrument, the Minister, before determining a development application, is required to obtain the concurrence of a person, the Minister is required only to consult with the person.
(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 30 (3) and applicable to the development (unless the relevant environmental planning instrument is a deemed instrument referred to in Division 2 of Part 21 of Schedule 6).
(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 80A not inconsistent with the conditions of the concurrence or to refuse consent.
(10) Avoidance of consents subject to concurrence If, by an environmental planning instrument, a development application may not be determined by the granting of consent without the concurrence of a specified person, a consent granted:
(a)  without that concurrence, or
(b)  not subject to any conditions of the concurrence,
is, subject to sections 102–104, voidable.
(11)  However, if the specified person fails to inform the consent authority of the decision concerning concurrence within the time allowed for doing so, the consent authority may determine the development application without the concurrence of the specified person and a development consent so granted is not voidable on that ground.
(12)  Nothing in this section affects any liability of a consent authority in respect of a consent granted as referred to in subsection (10) (a) or (b).
79BA   Consultation and development consent—certain bush fire prone land
(1)  Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land unless the consent authority:
(a)  is satisfied that the development conforms to the specifications and requirements of 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.
79C   Evaluation
(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a)  the provisions of:
(i)  any environmental planning instrument, and
(ii)  any 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 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 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv)  the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and
(v)  any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),
that apply to the land to which the development application relates,
(b)  the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c)  the suitability of the site for the development,
(d)  any submissions made in accordance with this Act or the regulations,
(e)  the public interest.
Note.
 See section 75P (2) (a) for circumstances in which determination of development application to be generally consistent with approved concept plan for a project under Part 3A.
(2) Compliance with non-discretionary development standards—development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority:
(a)  is not entitled to take those standards into further consideration in determining the development application, and
(b)  must not refuse the application on the ground that the development does not comply with those standards, and
(c)  must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,
and the discretion of the consent authority under this section and section 80 is limited accordingly.
(3)  If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards:
(a)  subsection (2) does not apply and the discretion of the consent authority under this section and section 80 is not limited as referred to in that subsection, and
(b)  a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.
Note.
 The application of non-discretionary development standards to complying development is dealt with in section 85A (3) and (4).
(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.
80   Determination
(1) General A consent authority is to determine a development application by:
(a)  granting consent to the application, either unconditionally or subject to conditions, or
(b)  refusing consent to the application.
(2)  Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.
(3) “Deferred commencement” consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.
(4) Total or partial consent A development consent may be granted:
(a)  for the development for which the consent is sought, or
(b)  for that development, except for a specified part or aspect of that development, or
(c)  for a specified part or aspect of that development.
(5)  The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development.
Note.
 See also Division 2A for special procedures concerning 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 Planning Assessment 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 Planning Assessment 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 Planning Assessment 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 Planning Assessment 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 section 79 (1) (a)) has expired, or
(b)  if a submission is made with respect to the application within the submission period, until after 21 days following the date on which a copy of the submission is forwarded to the Secretary have expired.
(10)  Subsection (9) (b) does not apply:
(a)  to a consent authority being the Minister or the Secretary, or
(b)  if the Secretary has waived the requirement that submissions be forwarded to the 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 96).
(13), (14)    (Repealed)
80A   Imposition of conditions
(1) Conditions—generally A condition of development consent may be imposed if:
(a)  it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or
(b)  it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 10 in relation to the land to which the development application relates, or
(c)  it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or
(d)  it limits the period during which development may be carried out in accordance with the consent so granted, or
(e)  it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or
(f)  it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or
(g)  it modifies details of the development the subject of the development application, or
(h)  it is authorised to be imposed under section 80 (3) or (5), subsections (5)–(9) of this section or section 94, 94A, 94EF or 94F.
(2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.
(3)  A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 97, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect.
(4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following:
(a)  one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,
(b)  clear criteria against which achievement of the outcome or objective must be assessed.
(5) Modification or surrender of consents or existing use rights If a consent authority imposes (as referred to in subsection (1) (b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 10, the consent or right may be modified or surrendered subject to and in accordance with the regulations.
(6) Conditions and other arrangements concerning security A development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of any one or more of the following:
(a)  making good any damage caused to any property of the consent authority (or any property of the corporation) as a consequence of the doing of anything to which the consent relates,
(b)  completing any public work (such as road work, kerbing and guttering, footway construction, stormwater drainage and environmental controls) required in connection with the consent,
(c)  remedying any defects in any such public work that arise within 6 months after the work is completed.
(7)  The security is to be for such reasonable amount as is determined by the consent authority.
(8)  The security may be provided, at the applicant’s choice, by way of:
(a)  deposit with the consent authority, or
(b)  a guarantee satisfactory to the consent authority.
(9)  The security is to be provided before carrying out any work in accordance with the development consent or at such other time as may be agreed to by the consent authority.
(10)  The funds realised from a security may be paid out to meet any cost referred to in subsection (6). Any balance remaining is to be refunded to, or at the direction of, the persons who provided the security.
(10A)  A condition of a consent has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development.
(10B) Review of extended hours of operation and number of persons permitted A development consent that is granted subject to a reviewable condition may be granted subject to a further condition that the consent authority may review that condition at any time or at intervals specified by the consent and that the reviewable condition may be changed on any such review.
(10C)  The regulations may make provision for or with respect to the kinds of development that may be subject to a further condition referred to in subsection (10B), the matters that must be included in such a condition and the procedures for a review under such a condition.
(10D)  A decision by a consent authority to change a reviewable condition on a review is taken to be a determination of a development consent for the purposes of this Act.
Note.
 A review application or an appeal against a determination of a development consent may be made under this Division or Division 8.
(10E)  For the purposes of subsections (10B)–(10D), a reviewable condition means any of the following:
(a)  a condition that permits extended hours of operation (in addition to other specified hours of operation),
(b)  a condition that increases the maximum number of persons permitted in a building (in addition to the maximum number otherwise permitted).
(11) Prescribed conditions A development consent is subject to such conditions as may be prescribed by the regulations.
81   Post-determination notification
(1)  The consent authority must, in accordance with the regulations, notify its determination of a development application to:
(a)  the applicant, and
(b)  in the case of a development application for consent to carry out designated development, each person who made a submission under section 79 (5), and
(c)  such other persons as are required by the regulations to be notified of the determination of the development application.
(2)  If the consent authority is not the council, the consent authority must notify the council of its determination.
(3)  In the case of a development application for consent to carry out designated development, the consent authority must also notify each person who made a submission under section 79 (5) by way of objection of the person’s rights to appeal against the determination and of the applicant’s rights to appeal against the determination.
(4)  For the purposes of this section, designated development includes State significant development that would be designated development but for section 77A (2), and accordingly a reference in this section to section 79 (5) includes a reference to section 89F (3).
81A   Effects of development consents and commencement of development
(1) Erection of buildings A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M.
Note.
 Section 109M prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.
(2)  The erection of a building in accordance with a development consent must not be commenced until:
(a)  a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and
(b)  the person having the benefit of the development consent has:
(i)  appointed a principal certifying authority for the building work, and
(ii)  notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and
(b1)  the principal certifying authority has, no later than 2 days before the building work commences:
(i)  notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and
(ii)  notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and
(b2)  the person having the benefit of the development consent, if not carrying out the work as an owner-builder, has:
(i)  appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and
(ii)  notified the principal certifying authority of any such appointment, and
(iii)  unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and
(c)  the person having the benefit of the development consent has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the erection of the building.
(3) Subdivision of land A development consent that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems.
Note.
 A plan of subdivision cannot be registered under the Conveyancing Act 1919 unless a subdivision certificate has been issued for the subdivision.
(4)  Subdivision work in accordance with a development consent must not be commenced until:
(a)  a construction certificate for the subdivision work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and
(b)  the person having the benefit of the development consent has appointed a principal certifying authority for the subdivision work, and
(b1)  the principal certifying authority has, no later than 2 days before the subdivision work commences:
(i)  notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and
(ii)  notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the subdivision work, and
(c)  the person having the benefit of the development consent has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the subdivision work.
(5) Regulations may provide for the issue of certificates The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.
(6) Crown building work Subsections (2) and (4) do not apply in relation to Crown building work that is certified, in accordance with section 109R, to comply with the technical provisions of the State’s building laws.
(7)    (Repealed)
82   Circumstances in which consent taken to have been refused
(1)  A consent authority that has not determined a development application within the relevant period, prescribed by the regulations, applicable to the development the subject of the development application is, for the purpose only of section 97, taken to have determined the application by refusing consent on the date on which the period expires.
(2)  Nothing in subsection (1) prevents a consent authority from determining a development application after the expiration of the relevant period referred to in that subsection, whether on a review under section 82A or otherwise.
(3)  A determination pursuant to subsection (2) does not, subject to subsection (4), prejudice or affect the continuance or determination of an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made.
(4)  If a determination pursuant to subsection (2) is made by granting consent, the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal (being an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made) withdrawn at any time prior to the determination of that appeal.
(5)  This section does not apply in respect of a development application if section 97 does not apply to the application.
82A   Review of determination
(1)  If the consent authority is a council, an applicant may request the council to review a determination of the applicant’s application, other than:
(a)  a determination to issue or refuse to issue a complying development certificate, or
(b)  a determination in respect of designated development, or
(c)  a determination in respect of integrated development, or
(d)  a determination made by the council under Division 4 in respect of an application by the Crown.
(2)  A council must, on a request made in accordance with this section, conduct a review.
(2A)  A determination cannot be reviewed:
(a)  after the time limited for the making of an appeal under section 97 expires, if no such appeal is made against the determination, or
(b)  after an appeal under section 97 against the determination is disposed of by the Court, if such an appeal is made against the determination.
(3)    (Repealed)
(3A)  In requesting a review, the applicant may make amendments to the development described in the original application, subject to subsection (4) (c).
(4)  The council may review the determination if:
(a)  it has notified the request for review in accordance with:
(i)  the regulations, if the regulations so require, or
(ii)  a development control plan, if the council has made a development control plan that requires the notification or advertising of requests for the review of its determinations, and
(b)  it has considered any submissions made concerning the request for review within any period prescribed by the regulations or provided by the development control plan, as the case may be, and
(c)  in the event that the applicant has made amendments to the development described in the original application, the consent authority is satisfied that the development, as amended, is substantially the same development as the development described in the original application.
(4A)  As a consequence of its review, the council may confirm or change the determination.
(5)    (Repealed)
(6)  If the council reviews the determination, the review must be made by:
(a)  if the determination was made by a delegate of the council—the council or another delegate of the council who is not subordinate to the delegate who made the determination, or
(b)  if the determination was made by the council—the council.
(7)–(9)    (Repealed)
(10)  If on a review the council grants development consent, or varies the conditions of a development consent, the council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal made under section 97 in respect of its determination withdrawn at any time prior to the determination of that appeal.
(11)    (Repealed)
(12)  This section does not apply where a regional panel or a local planning panel exercises a council’s functions as the consent authority.
82B   Review where development application not accepted
(1) Application of section This section applies if a council as consent authority determines that a development application is to be rejected and not determined.
(2) Applications for council review The applicant may request a council to review the decision to reject and not determine the application.
(3) Council must review decision A council must, on a request made in accordance with this section, conduct a review.
(4) Persons who may conduct review The review must be conducted:
(a)  if the decision was made by the council—by the council, or
(b)  if the decision was made by a delegate of the council—by the council or another delegate of the council who is not subordinate to the delegate who made the determination.
(5) Determination of council review As a consequence of the review, the council may confirm its decision or proceed to consider the development application.
82C   Review procedures generally
(1)  This section and section 82D apply to a review held under section 82A, 82B or 96AB by a reviewing body.
(2)  An application for a review must be made, the review must be held and the review must be determined, within the relevant periods (if any) prescribed by the regulations.
(3)  The regulations may provide that a failure to determine an application within a period prescribed by the regulations is taken to be a decision refusing the application.
(4)  The prescribed fee must be paid in connection with an application for a review.
(5)  Before determining an application for a review (other than a review under section 82A), the reviewing body must notify the request for review (if required to do so by the regulations) and must consider any submissions made concerning the application for review within any period prescribed by the regulations.
(6)  The reviewing body must, in accordance with the regulations, give notice of the result of its determination of an application for a review to the person who applied for the review.
(7)  A decision on an application for a review may not be further reviewed under the same section by the same reviewing body.
(8)  The regulations may make further provision with respect to review applications, the conduct of a review and the notification of review decisions.
(9)  In this Division:
reviewing body means the council or the delegate of the council who conducts the review.
82D   Effect of review decisions
(1)  For the purposes of determining an application for a review, a reviewing body has the same functions as the consent authority had, in relation to the original application or determination.
(2)  If the reviewing body determines under section 82B that a council should proceed to consider a development application, the development application that is the subject of the review is taken to have been lodged on the day on which that determination is made.
(3)  If the reviewing body changes a determination (other than a determination under section 82B), the changed determination replaces the earlier determination as from the date of review and the date of determination of the application is taken to be the date of the decision on the review.
(4)  If the reviewing body grants development consent, or varies the conditions of a development consent or otherwise modifies a development consent, the reviewing body must endorse on the notice issued under section 82C (6) the date from which the consent, or the consent as varied, operates.
(5)  A decision by a reviewing body in determining an application for a review is taken for all purposes to be the decision of the consent authority.
(6)  This section has effect even if the appointment of a reviewing body or a member of a reviewing body is subsequently found not to have been validly made.
83   Date from which consent operates
(1)  Subject to subsections (2) and (3), if a determination is made by the granting of consent, the consent becomes effective and operates from:
(a)  except as provided in paragraph (b)—the date that is endorsed on the notice given to the applicant in accordance with section 81 (1) of the determination of the development application or under section 82D (4), or
(b)  in the case of designated development to which an objection has been made in accordance with section 79 (5):
(i)  if consent was granted under section 80 (6) or (7) following the holding of a review that includes a public hearing by the Planning Assessment Commission—the date that is endorsed on the notice of the determination of the development application given to the applicant in accordance with section 81 (1), or
(ii)  in any other case—the expiration of 28 days from the date that is endorsed on the notice of the determination of the development application given to the applicant in accordance with section 81 (1).
(2)  Subject to subsection (3), if a determination is made by the granting of consent or the granting of consent subject to conditions, and an appeal has been made under section 97 (1) or 98, the consent:
(a)  ceases to be, or does not become, effective pursuant to subsection (1), and
(b)  becomes effective and operates from the date of the determination of that appeal, except where that decision is to refuse development consent.
(3)  A consent referred to in subsection (1) or (2) is void and, except for the purposes of section 97 or 98, is taken never to have been granted if:
(a)  development consent is refused on a review under section 82A or an appeal under section 97, or
(b)  the effect of a decision on an appeal under section 98 is that development consent is refused.
(4)  If a determination is made by refusing consent or if an application is taken by section 82 to have been so determined, and the decision on the appeal made pursuant to section 97 in respect of that determination has the effect of granting consent, the decision is taken to be a consent granted under this Division and that consent is effective and operates from the date of that decision.
(4A)  Subsections (2) and (3) do not apply to State significant development. If development consent for any such development is refused by the Court on an appeal, any development consent that was granted ceases to have effect on the determination of the appeal.
(5)  Despite any other provision of this section, a development consent is taken to become effective and operate from such date as may be fixed by:
(a)  a court (whether or not the Land and Environment Court) that finally determines an appeal on a question of law which confirms the validity of, or results in the granting of, the consent, or
(b)  the Land and Environment Court, if the validity of a consent granted by that Court is confirmed by, or the consent is granted by that Court as a result of, such a final determination made by another court that has not fixed that date.
(6)    (Repealed)
Division 2A Special procedures concerning concept development applications
83A   Application of this Division
This Division applies to concept development applications and to consents granted on the determination of those applications.
83B   Concept development applications
(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 79C 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 79C when a subsequent development application is lodged (subject to subsection (2)).
83C   Concept development applications as alternative to DCP required by environmental planning instruments
(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 74D (5) also authorises the making of a development application where the relevant planning authority refuses to make, or delays making, a development control plan.
(3)  Any such 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.
83D   Status of concept development applications and consents
(1)  The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a 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 95 (2) which prevents a reduction in the 5-year period of a development consent.
Division 3 Special procedure for complying development
84   Application of this Division
This Division applies to complying development.
84A   Carrying out of complying development
(1)  A person may carry out complying development on land if:
(a)  the person has been issued with a complying development certificate for the development, and
(b)  the development is carried out in accordance with:
(i)  the complying development certificate, and
(ii)  any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued.
(2)  An application for a complying development certificate may be made:
(a)  by the owner of the land on which the development is proposed to be carried out, or
(b)  by any other person, with the consent of the owner of that land.
(3)  The regulations may provide for the procedures for making an application, the fees payable in connection with an application and the procedures for dealing with an application.
(4)    (Repealed)
(5)  Nothing in this Division prevents a consent authority from considering and determining a development application for the carrying out of complying development.
84B   (Repealed)
85   What is a “complying development certificate”?
(1) Terms of complying development certificate A complying development certificate is a certificate:
(a)  that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and
(b)  in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia.
(2)  A complying development certificate may indicate different classifications for different parts of the same building.
Note.
 To the extent to which it deals with the classification of a proposed building, a complying development certificate under this Division replaces the statement of classification formerly issued under the regulations under the Local Government Act 1993.
(3) Erection of buildings A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 109M.
Note.
 Section 109M prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.
(4) Subdivision of land A complying development certificate that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems.
Note.
 A plan of subdivision cannot be registered under the Conveyancing Act 1919 unless a subdivision certificate has been issued for the subdivision.
(5) Other requirements for complying development certificates The regulations:
(a)  may impose other requirements concerning the issue of complying development certificates, and
(b)  may provide for the form in which a complying development certificate is to be issued.
(5A)  A complying development certificate has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development.
(6)  For the purposes of this section, development standard includes a provision of a development control plan that would be a development standard, within the meaning of section 4, if the provision were in an environmental planning instrument.
85A   Process for obtaining complying development certificates
(1) Application An applicant may, in accordance with the regulations, apply to:
(a)  the council, or
(b)  an accredited certifier,
for a complying development certificate.
(2)    (Repealed)
(3) Evaluation The council or accredited certifier must consider the application and determine:
(a)  whether or not the proposed development is complying development, and
(b)  whether or not the proposed development complies with the relevant development standards, and
(c)  if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions.
(4)  A council or accredited certifier must not refuse to issue a complying development certificate on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.
(5)  A council, an employee of a council and an accredited certifier do not incur any liability as a consequence of acting in accordance with subsection (4).
(6) Determination The council or an accredited certifier may determine an application:
(a)  by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or
(b)  by refusing to issue a complying development certificate.
(7)  The council or an accredited certifier must not refuse to issue a complying development certificate if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the regulations relating to the issue of a complying development certificate.
(8)  The determination of an application by the council or accredited certifier must be completed within 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 6 in relation to the complying development.
(10)  There is no right of appeal against the determination of, or a failure or refusal to determine, an application for a complying development certificate by a council or an accredited certifier.
(10A) Payment of long service levy Where a council or accredited certifier completes a complying development certificate, that certificate is not to be forwarded or delivered to the applicant, unless 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 4, if the provision were in an environmental planning instrument.
86   Commencement of complying development
(1) Erection of buildings The erection of a building in accordance with a complying development certificate must not be commenced until:
(a)  the person having the benefit of the complying development certificate has:
(i)  appointed a principal certifying authority for the building work, and
(ii)  notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and
(a1)  the principal certifying authority has, no later than 2 days before the building work commences:
(i)  notified the council of his or her appointment, and
(ii)  notified the person having the benefit of the complying development certificate of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and
(a2)  the person having the benefit of the complying development certificate, if not carrying out the work as an owner-builder, has:
(i)  appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and
(ii)  notified the principal certifying authority of any such appointment, and
(iii)  unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and
(b)  the person having the benefit of the complying development certificate has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the erection of the building.
(2) Subdivision of land Subdivision work in accordance with a complying development certificate must not be commenced until:
(a)  the person having the benefit of the complying development certificate has appointed a principal certifying authority for the subdivision work, and
(a1)  the principal certifying authority has, no later than 2 days before the subdivision work commences, notified the council of his or her appointment, and
(b)  the person having the benefit of the complying development certificate has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the subdivision work.
(3) Crown development Subsections (1) and (2) do not apply in relation to development carried out by the Crown.
(4)    (Repealed)
86A   Duration of complying development certificate
(1)  A complying development certificate becomes effective and operates from the date endorsed on the certificate.
(2)  A complying development certificate lapses 5 years after the date endorsed on the certificate.
(3)  However, a complying development certificate does not lapse if the development to which it relates is physically commenced on the land to which the certificate applies within the period of 5 years after the date endorsed on the certificate.
(4)  No proceedings may be taken before a court or tribunal to extend the 5-year period.
87   Modification of complying development
(1)  A person who has made an application to carry out complying development and a person having the benefit of a complying development certificate may apply to modify the development the subject of the application or certificate.
(2)  This Division applies to an application to modify development in the same way as it applies to the original application.
Division 4 Crown developments
88   Definitions
(1)  In this Division:
applicable regional panel for development means the regional panel for the part of the State in which the development is to be carried out.
Crown development application means a development application made by or on behalf of the Crown.
(2)  A reference in this Division to the Crown:
(a)  includes a reference to a person who is prescribed by the regulations to be the Crown for the purposes of this Division, and
(b)  does not include a reference to:
(i)  a capacity of the Crown that is prescribed by the regulations not to be the Crown for the purposes of this Division, or
(ii)  a person who is prescribed by the regulations not to be the Crown for the purposes of this Division.
89   Determination of Crown development applications
(1)  A consent authority (other than the Minister) must not:
(a)  refuse its consent to a Crown development application, except with the approval of the Minister, or
(b)  impose a condition on its consent to a Crown development application, except with the approval of the applicant or the Minister.
(2)  If the consent authority fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the consent authority may refer the application:
(a)  to the Minister, if the consent authority is not a council, or
(b)  to the applicable regional panel, if the consent authority is a council.
(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).
89A   Directions by Minister
(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.
89B   Modification of Crown development consents
This Division applies to an application made by or on behalf of the Crown under section 96 in the same way as it applies to an application for development consent.
Division 4.1 State significant development
89C   Development that is State significant development
(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 order published in the Gazette, 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 Planning Assessment 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 115U (6) and (7) in relation to development that is, but for those provisions, both State significant development and State significant infrastructure.
89D   Minister consent authority for State significant development
(1)  The Minister is the consent authority for State significant development.
Note.
 Section 23 enables the Minister to delegate the consent authority function to the Planning Assessment Commission, the Secretary or to any other public authority.
(2)  If a concept development application is made under Division 2A in respect of State significant development:
(a)  the Minister may determine that a subsequent stage of the development is to be determined by the relevant council, 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 instead of the Minister.
89E   Consent for State significant development
(1)  The Minister 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 Minister 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)  Part 5 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 4B of Part 3 in conjunction with a proposed environmental planning instrument to permit the carrying out of the development. The Secretary may (despite anything to the contrary in section 54) undertake the functions of the relevant planning 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 56 (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 Planning Assessment 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 Planning Assessment Commission under a delegation from the Minister.
89F   Public participation
(1)  As soon as practicable after a development application is made for consent to carry out State significant development, the Secretary must:
(a)  place the application and any accompanying information on public exhibition for a period (of not less than 30 days) prescribed by the regulations (the submission period) commencing on the day after which notice of the application is first published as referred to in paragraph (b), and
(b)  cause notice of the application to be given and published in accordance with the regulations.
(2)  During the submission period, any person may inspect the development application and any accompanying information and make extracts from or copies of them.
(3)  During the submission period, any person may make written submissions to the Minister with respect to the development application. A submission by way of objection must set out the grounds of the objection.
(4)  If:
(a)  a development application for State significant development is amended, or substituted, or withdrawn and later replaced before it has been determined by the Minister, and
(b)  the Secretary has complied with subsection (1) in relation to the original application,
compliance with subsection (1) in relation to the amended, substituted or later application is not required, unless the Secretary determines that the amended, substituted or later application substantially differs from the original application and the environmental impact of the development concerned has not been reduced by the changes proposed in the amended, substituted or later application.
89G   Regulations—State significant development
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 89C (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.
89H   Evaluation of development application (s 79C)
Section 79C applies, subject to this Division, to the determination of the development application.
Note.
 Section 80 (7) provides that if a review is to be conducted by the Planning Assessment Commission into proposed State significant development the Minister is not to determine the development application until after the review has been conducted and consideration given to the findings and recommendations of the Commission.
89I   (Repealed)
89J   Approvals etc legislation that does not apply
(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)  the concurrence under Part 3 of the Coastal Protection Act 1979 of the Minister administering that Part of that Act,
(b)  a permit under section 201, 205 or 219 of the Fisheries Management Act 1994,
(c)  an approval under Part 4, or an excavation permit under section 139, of the Heritage Act 1977,
(d)  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.
89K   Approvals etc legislation that must be applied consistently
(1)  An authorisation of the following kind cannot be refused if it is necessary for carrying out 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.
89L   This Division prevails
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 5 Special procedure for integrated development
90   Application of this Division
(1)  This Division applies to integrated development.
(2)  However, this Division does not apply to development the subject of a development application made by or on behalf of the Crown (within the meaning of Division 4), other than development that requires a heritage approval.
90A   Definitions
In this Division:
approval means a consent, licence, permit, permission or any form of authorisation.
approval body means a person who may grant an approval.
first renewal of an approval means, in the case of an environment protection licence under the Protection of the Environment Operations Act 1997, the first review of the licence under section 78.
grant an approval includes give or issue an approval.
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.
91   What is “integrated development”?
(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 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)
s 15
approval to alter or erect improvements within a mine subsidence district or to subdivide land therein
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.
91A   Development that is integrated development
(1)  This section applies to the determination of a development application for development that is integrated development.
(2)  Before granting development consent to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such approval if the consent authority determines to refuse to grant development consent.
(3)  A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purposes of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval.
(4)  If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application.
(5)  If the approval body fails to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval, or of the general terms of its approval:
(a)  the consent authority may determine the development application, and
(b)  if the consent authority determines the development application by granting consent:
(i)  the approval body cannot refuse to grant approval to an application for approval in respect of the development, and
(ii)  an approval granted by the approval body must not be inconsistent with the development consent, and
(iii)  section 93 applies to an approval so granted as if it were an approval the general terms of which had been provided to the consent authority,
despite any other Act or law.
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 121.
92   Consent authority may not refuse certain development applications
(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.
92A   Effect of giving notice
If, in relation to integrated development:
(a)  notice of a development application is given under section 79 or 79A, and
(b)  the consent authority obtains from an approval body the general terms of any approval proposed to be granted by the approval body in relation to the development or the approval body fails to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval or of the general terms of its approval, and
(c)  the consent authority determines the application by granting consent,
the notice is taken to be notice duly given for the purpose of any law that requires the giving of public notice in relation to an application for the approval of the approval body to that development.
93   Granting and modification of approval by approval body
(1)  Despite any other Act or law, an approval body must, in respect of integrated development for which development consent has been granted following the provision by the approval body of the general terms of the approval proposed to be granted by the approval body in relation to the development, grant approval to any application for approval that is made within 3 years after the date on which the development consent is granted if, within that 3-year period, the development consent has not lapsed or been revoked.
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 80A (6)–(10) nor the imposition of conditions as to security by the consent authority prevent an approval body from imposing conditions, or additional conditions, as to security.
(3)  Subsection (1) does not apply to or limit the granting of approval to an application for renewal of an approval.
(4)  An approval body cannot vary the terms of an approval granted for integrated development for which development consent has been granted before the expiration, lapsing or first renewal of the approval, whichever first occurs, other than to make variations that are not inconsistent with the development consent.
(5)  Subsection (4) does not prevent:
(a)  the modification, in accordance with section 96 or 96A, of the development consent at any time, or
(b)  if a development consent is modified as referred to in paragraph (a) before the expiration, lapsing or first renewal, whichever first occurs, of the approval, the modification in accordance with law of the approval to any necessary consequential extent, or
(c)  the exercise by the approval body of any of its other functions, such as the issuing of orders, the suspension or cancellation of an approval or the prosecution of offences.
93A   Effect of approval if the approval body is also a concurrence authority
If the concurrence of a person who is also an approval body is required before a consent authority may grant a development consent, the granting of the general terms of its approval is taken to also grant the concurrence provided that the matters to be considered in granting the general terms of its approval are the same as those required to be considered in deciding whether or not to grant the concurrence.
93B   Rights of appeal
(1) Applicant’s appeal rights This Division does not affect any right of objection, appeal or review conferred on an applicant for an approval under the Act that provides for the granting of the approval, except as provided by subsection (2).
(2) Restriction on appellate body Despite any other Act or law, section 93 applies to a person, court or tribunal that deals with an objection, appeal or review referred to in this section in the same way as it applies to an approval body.
Division 6 Development contributions
Subdivision 1 Preliminary
93C   Definitions
In this Division:
contributions plan means a contributions plan approved under section 94EA.
development corporation means a development corporation constituted under Part 2 of the Growth Centres (Development Corporations) Act 1974.
growth centre has the same meaning as it has in the Growth Centres (Development Corporations) Act 1974.
planning agreement means a voluntary agreement referred to in section 93F.
planning authority means:
(a)  a council, or
(b)  the Minister, or
(c)  the corporation, or
(d)  a development corporation (within the meaning of the Growth Centres (Development Corporations) Act 1974), or
(e)  a public authority declared by the regulations to be a planning authority for the purposes of this Division.
public amenities or public services do not include water supply or sewerage services.
special contributions area means land for the time being described in Schedule 5A.
93D   Relationship to planning instruments
This Division does not derogate from or otherwise affect any provision of an environmental planning instrument, whether made before or after the commencement of this section, that requires satisfactory arrangements to be made for the provision of particular kinds of public infrastructure, facilities or services before development is carried out.
93E   Provisions relating to money etc contributed under this Division (other than Subdivision 4)
(1)  A consent authority or planning authority is to hold any monetary contribution or levy that is paid under this Division (other than Subdivision 4) in accordance with the conditions of a development consent or with a planning agreement for the purpose for which the payment was required, and apply the money towards that purpose within a reasonable time.
(2)  However, money paid under this Division (other than Subdivision 4) for different purposes in accordance with the conditions of development consents may be pooled and applied progressively for those purposes, subject to the requirements of any relevant contributions plan or ministerial direction under this Division (other than Subdivision 4).
(3)  Land dedicated in accordance with this Division (other than Subdivision 4) is to be made available by the consent authority or planning authority for the purpose for which the dedication was required and within a reasonable time.
(4)  A reference in this section to a monetary contribution or levy includes a reference to any additional amount earned from its investment.
Subdivision 2 Planning agreements
93F   Planning agreements
(1)  A planning agreement is a voluntary agreement or other arrangement under this Division between a planning authority (or 2 or more planning authorities) and a person (the developer):
(a)  who has sought a change to an environmental planning instrument, or
(b)  who has made, or proposes to make, a development application, or
(c)  who has entered into an agreement with, or is otherwise associated with, a person to whom paragraph (a) or (b) applies,
under which the developer is required to dedicate land free of cost, pay a monetary contribution, or provide any other material public benefit, or any combination of them, to be used for or applied towards a public purpose.
(2)  A public purpose includes (without limitation) any of the following:
(a)  the provision of (or the recoupment of the cost of providing) public amenities or public services,
(b)  the provision of (or the recoupment of the cost of providing) affordable housing,
(c)  the provision of (or the recoupment of the cost of providing) transport or other infrastructure relating to land,
(d)  the funding of recurrent expenditure relating to the provision of public amenities or public services, affordable housing or transport or other infrastructure,
(e)  the monitoring of the planning impacts of development,
(f)  the conservation or enhancement of the natural environment.
(3)  A planning agreement must provide for the following:
(a)  a description of the land to which the agreement applies,
(b)  a description of:
(i)  the change to the environmental planning instrument to which the agreement applies, or
(ii)  the development to which the agreement applies,
(c)  the nature and extent of the provision to be made by the developer under the agreement, the time or times by which the provision is to be made and the manner by which the provision is to be made,
(d)  in the case of development, whether the agreement excludes (wholly or in part) or does not exclude the application of section 94, 94A or 94EF to the development,
(e)  if the agreement does not exclude the application of section 94 to the development, whether benefits under the agreement are or are not to be taken into consideration in determining a development contribution under section 94,
(f)  a mechanism for the resolution of disputes under the agreement,
(g)  the enforcement of the agreement by a suitable means, such as the provision of a bond or guarantee, in the event of a breach of the agreement by the developer.
(3A)  A planning agreement cannot exclude the application of section 94 or 94A in respect of development unless the consent authority for the development or the Minister is a party to the agreement.
(4)  A provision of a planning agreement in respect of development is not invalid by reason only that there is no connection between the development and the object of expenditure of any money required to be paid by the provision.
Note.
 See section 93E (1), which requires money paid under a planning agreement to be applied for the purpose for which it was paid within a reasonable time.
(5)  If a planning agreement excludes the application of section 94 or 94A to particular development, a consent authority cannot impose a condition of development consent in respect of that development under either of those sections (except in respect of the application of any part of those sections that is not excluded by the agreement).
(5A)  A planning authority, other than the Minister, is not to enter into a planning agreement excluding the application of section 94EF without the approval of:
(a)  the Minister, or
(b)  a development corporation designated by the Minister to give approvals under this subsection.
(6)  If a planning agreement excludes benefits under a planning agreement from being taken into consideration under section 94 in its application to development, section 94 (6) does not apply to any such benefit.
(7)  Any Minister, public authority or other person approved by the Minister is entitled to be an additional party to a planning agreement and to receive a benefit under the agreement on behalf of the State.
(8)  A council is not precluded from entering into a joint planning agreement with another council or other planning authority merely because it applies to any land not within, or any purposes not related to, the area of the council.
(9)  A planning agreement cannot impose an obligation on a planning authority:
(a)  to grant development consent, or
(b)  to exercise any function under this Act in relation to a change to an environmental planning instrument.
(10)  A planning agreement is void to the extent, if any, to which it requires or allows anything to be done that, when done, would breach this section or any other provision of this Act, or would breach the provisions of an environmental planning instrument or a development consent applying to the relevant land.
(11)  A reference in this section to a change to an environmental planning instrument includes a reference to the making or revocation of an environmental planning instrument.
93G   Information about planning agreements
(1)  A planning agreement cannot be entered into, and a planning agreement cannot be amended or revoked, unless public notice has been given of the proposed agreement, amendment or revocation, and a copy of the proposed agreement, amendment or revocation has been available for inspection by the public for a period of not less than 28 days.
(2)  The regulations may provide for the public notice to be given under subsection (1) and may provide that it may be given contemporaneously with, in association with, or as part of, any other public notice or public notification that is required to be given of any matter relevant to the planning agreement.
(3)  If the Minister is not a party to a planning agreement, the relevant planning authority that is a party to the agreement must provide to the Minister:
(a)  a copy of the agreement within 14 days after the agreement is entered into, and
(b)  if the agreement is amended, a copy of the amendment within 14 days after the amendment is made, and
(c)  if the agreement is revoked, notice of the revocation within 14 days after the revocation occurs.
(4)  If a council is not a party to a planning agreement that applies to the area of the council, the relevant planning authority that is a party to the agreement must provide to the council:
(a)  a copy of the agreement within 14 days after the agreement is entered into, and
(b)  if the agreement is amended, a copy of the amendment within 14 days after the amendment is made, and
(c)  if the agreement is revoked, notice of the revocation within 14 days after the revocation occurs.
(5)  A planning authority that has entered into one or more planning agreements must, while any such planning agreements remain in force, include in its annual report particulars of compliance with and the effect of the planning agreements during the year to which the report relates.
93H   Registered planning agreements to run with land
(1)  A planning agreement can be registered under this section if the following persons agree to its registration:
(a)  if the agreement relates to land under the Real Property Act 1900—each person who has an estate or interest in the land registered under that Act, or
(b)  if the agreement relates to land not under the Real Property Act 1900—each person who is seised or possessed of an estate or interest in the land.
(2)  On lodgement by a planning authority of an application for registration in a form approved by the Registrar-General, the Registrar-General is to register the planning agreement:
(a)  by making an entry in the relevant folio of the Register kept under the Real Property Act 1900 if the agreement relates to land under that Act, or
(b)  by registering the agreement in the General Register of Deeds if the agreement relates to land not under the Real Property Act 1900.
(3)  A planning agreement that has been registered by the Registrar-General under this section is binding on, and is enforceable against, the owner of the land from time to time as if each owner for the time being had entered into the agreement.
(4)  A reference in this section to a planning agreement includes a reference to any amendment or revocation of a planning agreement.
93I   Circumstances in which planning agreements can or cannot be required to be made
(1)  A provision of an environmental planning instrument (being a provision made after the commencement of this section):
(a)  that expressly requires a planning agreement to be entered into before a development application can be made, considered or determined, or
(b)  that expressly prevents a development consent from being granted or having effect unless or until a planning agreement is entered into,
has no effect.
(2)  A consent authority cannot refuse to grant development consent on the ground that a planning agreement has not been entered into in relation to the proposed development or that the developer has not offered to enter into such an agreement.
(3)  However, a consent authority can require a planning agreement to be entered into as a condition of a development consent, but only if it requires a planning agreement that is in the terms of an offer made by the developer in connection with:
(a)  the development application, or
(b)  a change to an environmental planning instrument sought by the developer for the purposes of making the development application,
or that is in the terms of a commitment made by the proponent in a statement of commitments made under Part 3A.
(4)  In this section, planning agreement includes any agreement (however described) containing provisions similar to those that are contained in an agreement referred to in section 93F.
93J   Jurisdiction of Court with respect to planning agreements
(1)  A person cannot appeal to the Court under this Act against the failure of a planning authority to enter into a planning agreement or against the terms of a planning agreement.
(2)  This section does not affect the jurisdiction of the Court under section 123.
93K   Determinations or directions by Minister
The Minister may, generally or in any particular case or class of cases, determine or direct any other planning authority as to:
(a)  the procedures to be followed in negotiating a planning agreement, or
(b)  the publication of those procedures, or
(c)  other standard requirements with respect to planning agreements.
93L   Regulations—planning agreements
The regulations may make provision for or with respect to planning agreements, including the following:
(a)  the form of planning agreements,
(b)  the subject-matter of planning agreements,
(c)  the making, amendment and revocation of planning agreements, including the giving of public notice and inspection by the public,
(d)  the public inspection of planning agreements after they have been made.
Subdivision 3 Local infrastructure contributions
94   Contribution towards provision or improvement of amenities or services
(1)  If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring:
(a)  the dedication of land free of cost, or
(b)  the payment of a monetary contribution,
or both.
(2)  A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned.
(3)  If:
(a)  a consent authority has, at any time, whether before or after the date of commencement of this Part, provided public amenities or public services within the area in preparation for or to facilitate the carrying out of development in the area, and
(b)  development for which development consent is sought will, if carried out, benefit from the provision of those public amenities or public services,
the consent authority may grant the development consent subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services (being the cost as indexed in accordance with the regulations).
(4)  A condition referred to in subsection (3) may be imposed only to require a reasonable contribution towards recoupment of the cost concerned.
(5)  The consent authority may accept:
(a)  the dedication of land in part or full satisfaction of a condition imposed in accordance with subsection (3), or
(b)  the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with subsection (1) or (3).
(6)  If a consent authority proposes to impose a condition in accordance with subsection (1) or (3) in respect of development, the consent authority must take into consideration any land, money or other material public benefit that the applicant has elsewhere dedicated or provided free of cost within the area (or any adjoining area) or previously paid to the consent authority, other than:
(a)  a benefit provided as a condition of the grant of development consent under this Act, or
(b)  a benefit excluded from consideration under section 93F (6).
(7)  If:
(a)  a condition imposed under subsection (1) or (3) in relation to development has been complied with, and
(b)  a public authority would, but for this subsection, be entitled under any other Act to require, in relation to or in connection with that development, a dedication of land or payment of money in respect of the provision of public amenities or public services or both,
then, despite that other Act, compliance with the condition referred to in paragraph (a) is taken to have satisfied the requirement referred to in paragraph (b) to the extent of the value (determined, if the regulations so provide, in accordance with the regulations) of the land dedicated or the amount of money paid in compliance with the condition.
94A   Fixed development consent levies
(1)  A consent authority may impose, as a condition of development consent, a requirement that the applicant pay a levy of the percentage, authorised by a contributions plan, of the proposed cost of carrying out the development.
(2)  A consent authority cannot impose as a condition of the same development consent a condition under this section as well as a condition under section 94.
(2A)  A consent authority cannot impose a condition under this section in relation to development on land within a special contributions area without the approval of:
(a)  the Minister, or
(b)  a development corporation designated by the Minister to give approvals under this subsection.
(3)  Money required to be paid by a condition imposed under this section is to be applied towards the provision, extension or augmentation of public amenities or public services (or towards recouping the cost of their provision, extension or augmentation). The application of the money is subject to any relevant provisions of the contributions plan.
(4)  A condition imposed under this section is not invalid by reason only that there is no connection between the development the subject of the development consent and the object of expenditure of any money required to be paid by the condition.
(5)  The regulations may make provision for or with respect to levies under this section, including:
(a)  the means by which the proposed cost of carrying out development is to be estimated or determined, and
(b)  the maximum percentage of a levy.
94B   Section 94 or 94A conditions subject to contributions plan
(1)  A consent authority may impose a condition under section 94 or 94A only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division).
(2)  However, in the case of a consent authority other than a council:
(a)  the consent authority may impose a condition under section 94 or 94A even though it is not authorised (or of a kind allowed) by, or is not determined in accordance with, a contributions plan, but
(b)  the consent authority must, before imposing the condition, have regard to any contributions plan that applies to the whole or any part of the area in which development is to be carried out.
(3)  A condition under section 94 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction.
(4)  A condition under section 94A that is of a kind allowed by, and determined in accordance with, a contributions plan (or a direction of the Minister under this Division) may not be disallowed or amended by the Court on appeal.
94C   Cross-boundary issues
(1)  A condition may be imposed under section 94 or 94A for the benefit (or partly for the benefit) of an area that adjoins the local government area in which the development is to be carried out.
(2)  Any monetary contribution that is required to be paid under any such condition is to be apportioned among the relevant councils:
(a)  in accordance with any joint or other contributions plan approved by those councils, or
(b)  if provision is not made for the apportionment in any such plan—in accordance with the terms of the development consent for the development.
(3)  Any dispute between the councils concerned is to be referred to the Secretary and resolved in accordance with any direction given by the Secretary.
94CA   Public service or public amenity may be provided outside NSW
A condition may, with the written approval of the Minister, be imposed under section 94 or 94A for the provision of a public amenity or public service on land in another State or Territory if the area in which the development the subject of the condition is to be carried out adjoins the other State or Territory.
94D   Section 94 or 94A conditions imposed by Minister or Secretary in growth centres, council areas etc
(1)  This section applies where the Minister or the Secretary, as the consent authority, imposes conditions under section 94 or 94A in relation to:
(a)  land within a growth centre, or
(b)  other land within one or more council areas.
(2)  This Division applies to land within a growth centre as if references in this Division to the area were references to the growth centre.
(3)  Any monetary contribution paid in accordance with a condition under section 94 or 94A:
(a)  must be paid by the Minister or Secretary to the corporation for the growth centre or to the councils of the areas concerned, and
(b)  must (together with any additional amount earned from its investment) be applied within a reasonable time for the purpose for which it was levied.
(4)  This section applies to the Minister as consent authority whether or not the Minister is the consent authority because it is State significant development.
(5)    (Repealed)
94E   Directions by Minister
(1)  The Minister may, generally or in any particular case or class of cases, direct a consent authority as to:
(a)  the public amenities and public services in relation to which a condition under section 94 may or may not be imposed, and
(b)  in the case of a condition under section 94 requiring the payment of a monetary contribution:
(i)  the means by which or the factors in relation to which the amount of the contribution may or may not be calculated or determined, and
(ii)  the maximum amount of any such contribution, and
(c)  the things that may or may not be accepted as a material public benefit for the purposes of a condition under section 94, and
(d)  the type or area of development in respect of which a condition under section 94A may be imposed and the maximum percentage of the levy, and
(e)  the use of monetary contributions or levies for purposes other than those for which they were paid, and
(f)  the preparation of joint contributions plans by two or more councils.
(2)  A consent authority to which a direction is given under this section must comply with the direction in accordance with its terms.
(3)  A consent authority must not, in granting development consent in relation to which a direction under this section applies, impose a condition that is not in accordance with the terms of the direction, despite the other provisions of this Division and despite the provisions of any contributions plan.
94EA   Contributions plans—making
(1)  A council, or two or more councils, may, subject to and in accordance with the regulations, prepare and approve a contributions plan for the purpose of imposing conditions under this Division (other than Subdivision 4).
(2)  If a contributions plan authorises the imposition of conditions under section 94A, the plan is to specify the type or area of development in respect of which a condition under section 94A may be imposed and is to preclude the imposition of a condition under section 94 in respect of that type or area of development.
(2A)  A contributions plan does not authorise the imposition of a condition under section 94 on a grant of development consent if the public amenities or public services to which that condition relates are, in whole or in part, infrastructure provided, or to be provided, in relation to the development out of contributions collected under Subdivision 4.
(3)  The regulations may make provision for or with respect to the preparation and approval of contributions plans, including the format, structure and subject-matter of plans.
(4)  A council is, as soon as practicable after approving a contributions plan, to provide the Minister with a copy of the plan.
94EAA   Contributions plans—making, amendment or repeal by Minister
(1)  The Minister may direct a council, in writing, to approve, amend or repeal a contributions plan in the time and manner specified in the direction.
(2)  The Minister may make, amend or repeal a contributions plan if:
(a)  a council fails to approve, amend or repeal the plan in accordance with a direction of the Minister under this section, or
(b)  a council consents in writing to the Minister making, amending or repealing the plan.
The plan, the amended plan or the repeal of the plan has effect as if it had been approved, amended or repealed by the council.
(3)  The Minister in making, amending or repealing a contributions plan under this section is not subject to the regulations.
(4)  A person cannot appeal to the Court under this Act in respect of:
(a)  the making, amending or repealing of a contributions plan by or at the direction of the Minister under this section, or
(b)  the reasonableness in the particular circumstances of a condition under section 94 that is determined in accordance with any such contributions plan,
despite section 94B (3) or any other provision of this Act.
94EB   Contributions plans—judicial notice, validity etc
(1)  Judicial notice is to be taken of a contributions plan and of the date on which the plan came into effect.
(2)  It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of a contributions plan have been complied with and performed.
(3)  The validity of any procedure required to be followed in making or approving a contributions plan is not to be questioned in any legal proceedings except those commenced in the Court by any person within 3 months after the date on which the plan came into effect.
(4)  The amendment or repeal, whether in whole or in part, of a contributions plan does not affect the previous operation of the plan or anything duly done under the plan.
94EC   Contributions plans—complying development
(1)  In relation to an application made to an accredited certifier for a complying development certificate, a contributions plan:
(a)  is to specify whether or not the accredited certifier must, if a complying development certificate is issued, impose a condition under section 94 or 94A, and
(b)  can only authorise the imposition by an accredited certifier of a condition under section 94 that requires the payment of a monetary contribution, and
(c)  must specify the amount of the monetary contribution or levy that an accredited certifier must so impose or the precise method by which the amount is to be determined.
(1A)  The imposition of a condition by an accredited certifier as authorised by a contributions plan is subject to compliance with any directions given under section 94E (1) (a), (b) or (d) with which a council would be required to comply if issuing the complying development certificate concerned.
(2)  This section does not limit anything for which a contributions plan may make provision in relation to a consent authority.
(3)  The regulations may make provision for or with respect to anything for which a contributions plan may make provision under this section (being provisions that apply despite anything to the contrary in the contributions plan). The regulations may provide that the amount of a monetary contribution or levy be determined in a manner and by a person or body authorised by the regulations.
Subdivision 4 Special infrastructure contributions
94ED   Provision of infrastructure
(1)  In this Subdivision, a reference to the provision of infrastructure includes a reference to:
(a)  the provision, extension and augmentation of (or the recoupment of the cost of providing, extending or augmenting) public amenities or public services, affordable housing and transport or other infrastructure relating to land, and
(b)  the funding of recurrent expenditure relating to the provision, extension and augmentation of public amenities or public services, affordable housing and transport or other infrastructure, and
(c)  the conservation or enhancement of the natural environment, and
(d)  the Minister, corporation, Department or Secretary doing any one or more of the following:
(i)  carrying out of any research or investigation,
(ii)  preparing any report, study or instrument,
(iii)  doing any other matter or thing in connection with the exercise of any statutory function under this Act,
but does not include a reference to water supply or sewerage services.
(2)  Subject to section 94EE (2) (c), infrastructure may be regarded as being provided in relation to development whether or not the infrastructure is provided on land within a special contributions area or within New South Wales.
94EE   Minister to determine development contributions
(1)  The Minister is, subject to the regulations (if any), to determine the level and nature of development contributions to be imposed as conditions under this Subdivision for the provision of infrastructure in relation to a development or a class of development.
(2)  In determining the level and nature of development contributions:
(a)  the Minister is, as far as reasonably practicable, to make the contribution reasonable having regard to the cost of the provision of infrastructure in relation to the development or class of development, and
(b)  if the cost of that infrastructure exceeds $30 million—the Minister is to consult the Treasurer, and
(c)  the Minister is not to take into account infrastructure provided on land other than that within the relevant special contributions area, unless, in the opinion of the Minister, the provision of the infrastructure on such land arises as a result of the development or as a result of a class of development of which the development forms a part.
(3)  Despite subsection (2), the Minister may, if he or she sees fit, determine the level and nature of development contributions in the form of a levy of a percentage of the proposed cost of carrying out development or any class of development.
(3A)  The determination of the Minister is to identify what part (if any) of a development contribution, that is to be imposed as a condition under this Subdivision, is for the provision of infrastructure by a council or for any one or more of the matters set out in section 94ED (1) (d).
(3B)  Any part of a development contribution identified in accordance with subsection (3A):
(a)  is, for the purposes of Subdivision 5, taken not to be received by the consent authority under this Subdivision, and
(b)  is not to be taken into account in calculating the cost of infrastructure for the purposes of subsection (2) (b), and
(c)  is, if the part is identified as being for the provision of infrastructure by a council, to be provided to the council and is to be held and applied by the council in accordance with section 93E, and
(d)  is, if the part is identified as being for any one or more of the matters set out in section 94ED (1) (d), to be provided to the Department and is to be held and applied by the Department in accordance with section 93E.
(4)  In determining the level and nature of development contributions to be imposed as conditions under this Subdivision for development within a particular special contributions area (other than a growth centre), the Minister is to do one or more of the following:
(a)  consult with owners of land in the special contributions area and other relevant stakeholders,
(b)  publicly exhibit a proposal in relation to the level of development contributions and seek submissions within a reasonable time in relation to that proposal,
(c)  establish a panel that, in the Minister’s opinion, represents the interests of the various relevant stakeholders and consult with that panel.
(5)  The determination of the Minister:
(a)  is to contain reasons for the level and nature of the development contributions, and
(b)  is to be made publicly available by the Minister.
(6)  A person cannot appeal to the Court under this Act in respect of a determination of the Minister under this section.
(7)  Subsection (3A) does not limit any payments being made out of the Fund to a council or the Department under section 94EL (1) (a).
94EF   Special infrastructure contributions
(1)  The Minister may direct a consent authority, in relation to development or class of development on land within a special contributions area, to impose a condition (determined in accordance with section 94EE) on a grant of development consent in relation to that land.
(2)  If the Minister is the consent authority, the Minister may impose a condition referred to in subsection (1) without giving a direction under that subsection.
(3)  A consent authority to which a direction is given under this section must comply with the direction in accordance with its terms. If the consent authority fails to do so, the Minister may impose the condition, and it has effect as if it had been imposed by the consent authority.
(4)  A condition imposed under this section is in addition to any condition that the consent authority may impose under section 94 or 94A in relation to the development.
(5)  The consent authority may, subject to the consent of the Minister, accept:
(a)  the dedication of land in part or full satisfaction of a condition imposed in accordance with this section, or
(b)  the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with this section.
(6)  A person cannot appeal to the Court under this Act in respect of a direction of the Minister, or a condition imposed by a consent authority or the Minister, under this section.
(7)  A condition imposed by a consent authority or the Minister under this section cannot be modified without the approval of the Minister.
94EG   Minister may make, amend or repeal special contributions areas
(1)  The Minister may, by order published on the NSW legislation website, amend Schedule 5A for the purpose of:
(a)  creating a special contributions area, or
(b)  repealing a special contributions area, or
(c)  changing a special contributions area.
(2)  Any such order may contain savings and transitional provisions.
(3)  Any such order takes effect on the day that it is published on the NSW legislation website or such later date as may be specified in the order.
(4)  Before creating a special contributions area (other than a growth centre), the Minister is to consult with the peak industry organisations that the Minister considers to be relevant.
94EH   Land contributed under this Subdivision
The Minister may direct a consent authority to sell all or part of any land it receives under this Subdivision or to transfer any such land to a public authority that is to provide, or has provided, infrastructure in relation to:
(a)  the development to which the land relates, or
(b)  the class of development to which that development belongs.
Subdivision 5 Establishment of Special Contributions Areas Infrastructure Fund
94EI   Definition
In this Subdivision:
the Fund means the Special Contributions Areas Infrastructure Fund established under section 94EJ.
94EJ   Establishment of Fund
(1)  There is to be established in the Special Deposits Account a fund called the Special Contributions Areas Infrastructure Fund.
(2)  The Fund is to be administered by the Secretary. The Secretary is to consult the Secretary of the Treasury in relation to the administration of the Fund.
94EK   Payments into Fund
The following is to be paid into the Fund:
(a)  monetary contributions received by a consent authority under Subdivision 4,
(b)  the proceeds of the sale of any land received by a consent authority under Subdivision 4,
(c)  any money appropriated by Parliament for the purposes of the Fund,
(d)  the proceeds of the investment of money in the Fund,
(e)  any other money required to be paid into the Fund by or under this or any other Act or the regulations under this Act.
94EL   Payments out of Fund
(1)  The following is to be paid from the Fund:
(a)  payments to public authorities for the provision of infrastructure in relation to development,
(b)  any money required to meet administrative expenses in relation to the Fund,
(c)  all other money directed or authorised to be paid from the Fund by this Act or by the regulations under this Act.
(2)  The assets of the Fund can only be applied for the purposes referred to in subsection (1).
94EM   Investment of money in Fund
The money in the Fund may be invested:
(a)  in such manner as may be authorised by the Public Authorities (Financial Arrangements) Act 1987, or
(b)  if that Act does not confer power on the Department to invest the money, in any other manner approved by the Treasurer.
Division 6A Conditions requiring land or contributions for affordable housing
94F   Conditions requiring land or contributions for affordable housing
(1)  This section applies with respect to a development application for consent to carry out development within an area if a State environmental planning policy identifies that there is a need for affordable housing within the area and:
(a)  the consent authority is satisfied that the proposed development will or is likely to reduce the availability of affordable housing within the area, or
(b)  the consent authority is satisfied that the proposed development will create a need for affordable housing within the area, or
(c)  the proposed development is allowed only because of the initial zoning of a site, or the rezoning of a site, or
(d)  the regulations provide for this section to apply to the application.
(2)  Subject to subsection (3), the consent authority may grant consent to a development application to which this section applies subject to a condition requiring:
(a)  the dedication of part of the land, or other land of the applicant, free of cost to be used for the purpose of providing affordable housing, or
(b)  the payment of a monetary contribution to be used for the purpose of providing affordable housing,
or both.
(3)  A condition may be imposed under this section only if:
(a)  the condition complies with all relevant requirements made by a State environmental planning policy with respect to the imposition of conditions under this section, and
(b)  the condition is authorised to be imposed by a local environmental plan, and is in accordance with a scheme for dedications or contributions set out in or adopted by such a plan, and
(c)  the condition requires a reasonable dedication or contribution, having regard to the following:
(i)  the extent of the need in the area for affordable housing,
(ii)  the scale of the proposed development,
(iii)  any other dedication or contribution required to be made by the applicant under this section or section 94.
(4)  A consent authority that proposes to impose a condition in accordance with this section must take into consideration any land or other sum of money that the applicant has previously dedicated free of cost, or previously paid, for the purpose of affordable housing within the area otherwise than as a condition of a consent.
(5)  Nothing in this section prevents the imposition on a development consent of other conditions relating to the provision, maintenance or retention of affordable housing. Such conditions may require, but are not restricted to, the imposition of covenants (including positive covenants) or the entering into of contractual or other arrangements.
(6)  A condition is not to be imposed under this section in relation to development that is within a special contributions area (within the meaning of Division 6) if a determination under section 94EE that applies to the area identifies affordable housing as a class of infrastructure for which development contributions may be required in accordance with the determination.
94G   Provision of affordable housing
(1)  Land dedicated in accordance with a condition imposed under this Division must:
(a)  be made available by the consent authority for the purposes of affordable housing within a reasonable time, or
(b)  be transferred by the consent authority in accordance with any applicable direction under subsection (3).
(2)  A consent authority must:
(a)  hold any monetary contribution paid in accordance with a condition imposed under this Division (and any additional amount earned from its investment) for the purpose for which the payment was required and apply the money for the purposes of affordable housing in the area or an adjoining area within a reasonable time, or
(b)  pay the monetary contribution in accordance with any applicable direction under subsection (3).
(3)  The Minister may give a direction, that applies generally or in any particular case or class of cases, to a consent authority:
(a)  requiring it to transfer land to a person nominated by the Minister, if it imposes a condition under this Division requiring dedication of the land, or
(b)  requiring it to pay a monetary contribution to a person nominated by the Minister, if it imposes a condition under this Division requiring the payment of the monetary contribution.
(4)  A person nominated under this section by the Minister must:
(a)  make available any land transferred to the person under this Division for the purposes of affordable housing within a reasonable time, and
(b)  apply any monetary contribution paid to the person under this Division (and any additional amount earned from its investment) for the purposes of affordable housing in the area concerned or in an adjoining area within a reasonable time.
Division 7 Post-consent provisions
95   Lapsing of consent
(1)  A development consent lapses 5 years after the date from which it operates.
(2)  However, a consent authority may reduce that period of 5 years in granting development consent. This subsection does not apply to development consent granted to a concept development application under Division 2A for development that requires a subsequent development application and consent.
(3)  Such a reduction may not be made so as to cause:
(a)  a development consent to erect or demolish a building or to subdivide land to lapse within 2 years after the date from which the consent operates, or
(b)  a development consent of a kind prescribed by the regulations to lapse within the period prescribed by the regulations in relation to the consent.
(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 80 (3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority, within the period so specified.
(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.
95A   Extension of lapsing period for 1 year
(1)  If, in granting a development consent, the consent authority reduces the period after which the consent lapses to less than 5 years, the applicant or any other person entitled to act on the consent may apply to the consent authority, before the period expires, for an extension of 1 year.
(2)  The consent authority may grant the extension if satisfied that the applicant has shown good cause.
(3)  A person making an application under subsection (1) who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after it is made, may appeal to the Court, and the Court may determine the appeal.
(4)  An extension of 1 year granted under this section commences to run from the later of the following:
(a)  the date on which the consent would have lapsed but for the extension,
(b)  the date on which the consent authority granted the extension or, if the Court has allowed the extension in determining an appeal, the date on which the Court determined the appeal.
(5)  This section does not apply to complying development.
95B   (Repealed)
96   Modification of consents—generally
(1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6), section 96AB and Division 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 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c)  it has notified the application in accordance with:
(i)  the regulations, if the regulations so require, or
(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1) and (1A) do not apply to such a modification.
(3)  In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.
(4)  The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
(5)    (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.
96AA   Modification by consent authorities of consents granted by the Court
(1)  A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if:
(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(b)  it has notified the application in accordance with:
(i)  the regulations, if the regulations so require, and
(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(c)  it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and
(d)  it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
(1A)  In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.
(1B)    (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)
96AB   Review where modification application refused or conditions imposed
(1) Applications for review of modification decisions An applicant for the modification of a development consent for which a council is the consent authority may request the council to review a determination by the council under section 96 or 96AA of the application.
(2) Council must review determination A council must, on a request made in accordance with this section, conduct a review.
(3) Persons who may conduct council review The review must be carried out by:
(a)  if the determination was made by the council—the council, or
(b)  if the determination was made by a delegate of the council—by the council or another delegate of the council who is not subordinate to the delegate who made the determination.
(4) Determination of review As a consequence of the review, the council may confirm or change the determination.
(5) No review if appeal period expired or appeal made A determination cannot be reviewed:
(a)  after the time limited for the making of an appeal under section 97AA expires, if no such appeal is made against the determination, or
(b)  after an appeal under section 97AA against the determination is disposed of by the Court, if such an appeal is made against the determination.
(6) Withdrawal of appeals If on a review the council modifies a development consent, the council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal made under section 97AA in respect of its determination withdrawn at any time prior to the determination of that appeal.
(7) Determinations not subject to review This section does not apply to the following determinations:
(a)  a determination of an application to modify a complying development certificate,
(b)  a determination in respect of designated development,
(c)  a determination in respect of integrated development,
(d)  a determination made by the council under section 89A in respect of an application by the Crown,
(e)  a determination that is taken to have been made because the council has failed to determine an application.
Note.
 Sections 82C and 82D apply to a review under this section.
96A   Revocation or modification of development consent
(1)  If at any time it appears to:
(a)  the 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 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 Secretary or council must:
(a)  by notice in writing inform, in accordance with the regulations:
(i)  each person who in the 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 Secretary or council, or a person appointed by the 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)  Within 3 months after the date on which the revocation or modification of the consent takes effect, the applicant for the consent, or any other person entitled to rely on the consent, who is aggrieved by the revocation or modification may appeal to the Court, and the Court may determine the appeal.
(6)  The Court may determine the appeal by affirming, varying or cancelling the instrument of revocation or modification.
(7)  If a development consent is revoked or modified under this section, a person aggrieved by the revocation or modification is entitled to recover from:
(a)  the Government of New South Wales—if the 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 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 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 8 Appeals and related matters
97   Appeal by applicant—development applications
(1)  An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant’s development application (including a determination on a review under section 82A) may appeal to the Court within 6 months after:
(a)  the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application or review, or
(b)  the date on which that application is taken to have been determined under section 82 (1).
(2)  An applicant who is dissatisfied with a decision that a consent authority, or a person specified by the consent authority, is not satisfied as to a matter, being a specified aspect of the development that is to be carried out to the satisfaction of the consent authority, or person, pursuant to a condition imposed under section 80A (2), may appeal to the Court within 6 months after:
(a)  the consent authority or person notifies the applicant of its decision, or
(b)  the date on which the applicant’s request is taken to have been determined under section 80A (3).
(3)  An applicant who is dissatisfied with a decision that a consent authority is not satisfied as to a matter, being a matter as to which it must be satisfied before a “deferred commencement” consent under section 80 (3) can operate, may appeal to the Court within 6 months after the consent authority notifies the applicant of its decision.
(4), (5)    (Repealed)
(6)  An appeal under this section relating to a development application for consent to carry out designated development in respect of which an objection has been made in accordance with the regulations must not be heard by the Court until after the expiration of the time within which an objector may appeal to the Court under section 98.
(7)  This section does not apply to a development application for designated development determined by the consent authority after a public hearing held by the Planning Assessment Commission, or to the determination of the application.
97AA   Appeal by applicant—modifications
An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant’s application under section 96 or 96AA (including a determination on a review under section 96AB) may appeal to the Court within 6 months after:
(a)  the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application or, if an application for review under section 96AB has been decided, the date on which the applicant received notice, in accordance with the regulations, of the decision, or
(b)  the date on which the applicant’s application is taken to have been determined in accordance with regulations made under section 82C (3), 96 (6) or 96AA (3).
97A   Notice of appeals to be given and right to be heard
(1)  The consent authority must give notice of an appeal under section 97, 97AA or 98:
(a)  to an objector, in the case of an appeal concerning a development application in respect of which the objector may appeal under section 98, or
(b)  to the relevant Minister or public authority, in the case of an appeal concerning a development application in relation to which the concurrence of a Minister or public authority is required under this Act, or
(c)  to the relevant approval body (within the meaning of Division 5), in the case of a development application to carry out integrated development that involves the approval body.
(2)  A council must give notice to a regional panel of any appeal under section 97, 97AA or 98 in respect of a determination made by the panel or that may be reviewed by the panel under this Act.
(3)  A council must give notice to the Planning Assessment Commission of any appeal under section 97, 97AA or 98 in respect of a determination made by the Commission or that may be reviewed by the Commission under this Act.
(4)  A person or body who is given notice of an appeal under this section is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if the person or body were a party to the appeal.
97B   Costs payable if amended development application filed
(1)  This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment).
(2)  In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application.
(3)  The regulations may provide for circumstances in which subsection (2) does not apply.
(4)  This section has effect despite the provisions of any other Act or law.
98   Appeal by an objector
(1)  An objector who is dissatisfied with the determination of a consent authority to grant consent to a development application for designated development (including designated development that is integrated development) either unconditionally or subject to conditions may, within 28 days after the date on which notice of the determination was given in accordance with the regulations, and in accordance with rules of court, appeal to the Court.
(2)  If an appeal has been made under subsection (1), the person who made the development application and the consent authority referred to in that subsection are to be given notice of that appeal, in accordance with rules of court, and are entitled to be heard at the hearing of the appeal as parties to the appeal.
(3)    (Repealed)
(4)  This section extends to a development application for State significant development that would be designated development but for section 77A (2), and to the determination of the application and, for that purpose, a reference in this Act to objector includes a person who has made a submission under section 89F (3) by way of objection to a development application for consent to carry out such State significant development.
(5)  This section does not apply to a development application determined by the consent authority after a public hearing held by the Planning Assessment Commission, or to the determination of the application.
98A   Appeal concerning security
(1)  An applicant who is dissatisfied with:
(a)  a decision of a consent authority with respect to the provision (otherwise than by the imposition of a condition of development consent) of security of a kind referred to in section 80A (6), or
(b)  the failure or refusal of the consent authority to release a security held by it, or
(c)  the failure or refusal of a council to release a security held by it that has been provided in accordance with a condition of a complying development certificate,
may appeal to the Court.
Note.
 The right to appeal against the imposition of a condition of development consent is excluded from subsection (1) (a) so as not to duplicate the right of appeal conferred by section 97.
(2)  An appeal with respect to a decision referred to in subsection (1) (a) may be made within 12 months after the applicant received notice of the decision.
(3)  An appeal with respect to a failure or refusal referred to in subsection (1) (b) or (c) may be made:
(a)  except as provided by paragraph (b), within 6 months after the work to which the security relates has been completed, or
(b)  if the security is provided in respect of contingencies that may arise on or after completion of the work to which the security relates, not earlier than 6 months and not later than 12 months after the completion of the work.
99   Joint hearing of certain appeals
(1)  If an appeal is made under section 97 with respect to a development application, the appeal is, as far as practicable, to be heard together with any appeals under section 98 made with respect to the application.
(2)  Without affecting subsection (1), if 2 or more appeals are made under section 98 with respect to the same development application, the appeals are, as far as practicable, to be heard together.
(3)  If 2 or more appeals are made under section 96A (5) with respect to the same notice referred to in section 96A, the appeals are, as far as practicable, to be heard together.
Division 9 Miscellaneous
100   Register of consents and certificates
(1)  A council must, in the prescribed form and manner (if any), keep a register of:
(a)  applications for development consent, and
(b)  the determination of applications for development consent (including the terms of development consents granted under this Part), and
(c)  the determination of applications for complying development certificates (including the terms of complying development certificates issued under this Part), and
(d)  decisions on appeal from any determination made under this Part.
(2)  The register is to be available for public inspection, without charge, at the office of the council during ordinary office hours.
101   Validity of development consents and complying development certificates
If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.
102   Non-compliance with certain provisions regarding State significant development
(1)  This section applies to a development consent granted, or purporting to be granted, by the Minister, before or after the commencement of this section.
(2)  The only requirements of this Act that are mandatory in connection with the validity of a development consent to which subsection (1) applies are as follows:
(a)  A requirement that a development application to carry out 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 84, 85, 86, 87 (1) and 90, as in force immediately before the commencement of this section, applied by virtue of an environmental planning instrument, as referred to in section 30 (4), as then in force, be publicly exhibited for the minimum period of time.
(c)  A requirement that a development application to carry out advertised development and its accompanying information be publicly exhibited for the minimum period of time prescribed by the regulations.
103   Revocation or regrant of development consents after order of Court
(1)  This section applies to a development consent granted, or purporting to be granted, by a consent authority, to which an order of suspension applies under section 25B of the Land and Environment Court Act 1979.
(2)  The consent authority may revoke a development consent to which this section applies, whether or not the terms imposed by the Court under section 25B of the Land and Environment Court Act 1979 have been complied with.
(3)  However, if the terms imposed by the Court have been substantially complied with, the consent authority may revoke the development consent to which this section applies and grant a new development consent with such alterations to the revoked consent as the consent authority thinks appropriate having regard to the terms themselves and to any matters arising in the course of complying with the terms. Such a grant of a development consent is referred to as a regrant of the consent.
(4)  No preliminary steps need be taken with regard to the regrant of a development consent under this section, other than those that are required to secure compliance with those terms.
(5)  Section 81 and such other provisions of this Act as may be prescribed by the regulations apply to development consents regranted under this section.
104   Appeals and other provisions relating to development consents after order of Court
(1)  A development consent declared to be valid under section 25C of the Land and Environment Court Act 1979:
(a)  is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and
(b)  is operative as from the date the development consent originally took effect or purported to take effect, unless the Court otherwise orders.
(2)  A development consent declared under section 25C of the Land and Environment Court Act 1979 to be validly regranted:
(a)  is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and
(b)  takes effect from the date of the declaration or another date specified by the Court.
104A   Voluntary surrender of development consent
(1)  A development consent may be surrendered, subject to and in accordance with the regulations, by any person entitled to act on the consent.
(2)  A development consent may be surrendered under this section even if, on the making of an appeal under section 97 or 98, the consent has ceased to be, or does not become, effective as referred to in section 83 (2).
105   Regulations—Part 4
(1)  In addition to any other matters for or with respect to which regulations may be made for the purposes of this Part, the regulations may make provision for or with respect to the following:
(a)  any matter that is necessary or convenient to be done before making a development application,
(b)  the persons who may make development applications,
(c)  the making, consideration and determination of development applications that are made by or on behalf of the Crown, public authorities and persons prescribed by the regulations,
(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,
(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 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)  procedures concerning complying development, advertised development and designated development,
(n1)  authorising a consent authority or council to impose a fee with respect to the lodging of any complying development certificate with it, whether pursuant to a requirement made by or under this Act or otherwise,
(o)  procedures concerning integrated development,
(p)  notifications and notices for the purposes of sections 81A and 86,
(p1)  procedural matters in relation to the review, under section 82A, of determinations,
(q)  the modification of development consents, including the fees for applications for modification,
(r)  the periods within which specified aspects of the environmental planning control process must be completed and the variation of those periods,
(s)  the effect of a failure to comply with any requirement of the regulations,
(t)  the notification of applicants and persons making submissions (including by way of objection) of the determination of development applications, reasons for the determinations and any rights of appeal.
(2)    (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 Secretary for payment, in accordance with subsection (6), into the Building Professionals Board Fund established under the Building Professionals Act 2005.
(6)  The 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 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.
105A   (Repealed)
Division 10 Existing uses
106   Definition of “existing use”
In this Division, existing use means:
(a)  the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and
(b)  the use of a building, work or land:
(i)  for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and
(ii)  that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.
107   Continuance of and limitations on existing use
(1)  Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.
(2)  Nothing in subsection (1) authorises:
(a)  any alteration or extension to or rebuilding of a building or work, or
(b)  any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or
(c)  without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or
(d)  the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or
(e)  the continuance of the use therein mentioned where that use is abandoned.
(3)  Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.
108   Regulations respecting existing use
(1)  The regulations may make provision for or with respect to existing use and, in particular, for or with respect to:
(a)  the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and
(b)  the change of an existing use to another use, and
(c)  the enlargement or expansion or intensification of an existing use.
(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 89 to a development application for consent to carry out prohibited development.
109   Continuance of and limitations on other lawful uses
(1)  Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.
(2)  Nothing in subsection (1) authorises:
(a)  any alteration or extension to or rebuilding of a building or work, or
(b)  any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or
(c)  without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or
(d)  the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or
(e)  the continuance of the use therein mentioned where that use is abandoned.
(3)  Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.
(4)    (Repealed)
109A   Uses unlawfully commenced
(1)  The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except:
(a)  the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor, or
(b)  the granting of development consent to that use.
(2)  The continuation of a use of a building, work or land that was unlawfully commenced is, and is taken always to have been, development of the land within the meaning of and for the purposes of any deemed instrument referred to in Division 2 of Part 21 of Schedule 6 applying, or which at any time applied, to or in respect of the building, work or land.
109B   Saving of effect of existing consents
(1)  Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.
(2)  This section:
(a)  applies to consents lawfully granted before or after the commencement of this Act, and
(b)  does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and
(c)  has effect despite anything to the contrary in section 107 or 109.
(3)  This section is taken to have commenced on the commencement of this Act.