Environmental Planning and Assessment Act 1979 No 203
Implementation and enforcement
Ministerial and other enforcement powers
Directions by the Minister
(cf previous s 117)
The Minister may direct a public authority or person having functions under this Act or an environmental planning instrument to exercise those functions at or within such times as are specified in the direction.In addition to any direction which may be given under subsection (1), the Minister may direct a council—to exercise its functions under section 3.21 or Division 3.4 of Part 3 in relation to the preparation of a local environmental plan in accordance with such principles, not inconsistent with this Act, as are specified in the direction, andwithout limiting paragraph (a), to include in a planning proposal prepared by the council provisions which will achieve or give effect to such principles or such aims, objectives or policies, not inconsistent with this Act, as are specified in the direction, andon a matter relating to the establishment and procedure of a local planning panel, on the development applications (including applications to modify development consents) that are to be determined on behalf of a council by a local planning panel and on the planning proposals that are required to be referred to a local planning panel for advice, andto provide the Minister, in the manner and at the times specified in the direction, with reports, containing such information as the Minister may direct, on the council’s performance in relation to planning and development matters.A direction under subsection (2)—may be given to a particular council or to councils generally, andmay require the inclusion in planning proposals of provisions to achieve or give effect to particular principles, aims, objectives or policies, andmay require planning proposals to be strictly consistent or substantially consistent with the terms of the direction (or provide for the circumstances in which an inconsistency can be justified).Any such direction may be given to councils generally by its publication in the Gazette or on a website maintained by the Department (or both).A reference to a council in subsections (2) and (2A) includes a reference to a planning proposal authority under Division 3.4 that is not a council.A public authority or person to whom a direction is given under subsection (1) or (2) shall comply, and is hereby empowered to comply, with the direction in accordance with the terms of the direction.Before giving a direction under subsection (1) or (2), the Minister shall consult with the responsible Minister concerned.Before giving a direction under subsection (2)(c), the Minister is to consult with the Local Government and Shires Association of New South Wales and any other industry organisation the Minister considers to be relevant, in relation to the information that the Minister is proposing to seek. This requirement is in addition to the requirement under subsection (4).A local environmental plan (or any planning proposal or purported plan) cannot in any court proceedings be challenged, reviewed, called into question, prevented from being made or otherwise affected on the basis of anything in a direction under subsection (1) or (2).
Inquiry into councils by Secretary of Department of Premier and Cabinet
(cf previous s 117A)
Local Government Act 1993 into any aspect of a council’s performance of its functions under this Act that requires investigation.The Secretary of the Department of Planning and Environment may request the Secretary of the Department of Premier and Cabinet to conduct an investigation under section 430 of theThe Secretary of the Department of Premier and Cabinet is to provide the Secretary of the Department of Planning and Environment with advice on the outcome of any such request or investigation.
Action that may be taken against council following investigation
(cf previous s 117B)
Building Professionals Act 2005 in relation to a council publicly available and is of the opinion that the council has not taken appropriate action about a matter investigated, the Board may—If the Building Professionals Board has made its final report of the results of an investigation under section 45 of themake recommendations to the Chief Executive of the Office of Local Government as to the measures that it considers appropriate to be taken in relation to the matter, orrecommend to the Minister that the Minister take action against the council under this section.Section 45 of the Building Professionals Act 2005 enables the Building Professionals Board to investigate the work and activities of a council in its capacity as a certifier.Local Government Act 1993, make an order suspending a council’s authority to exercise all or specified functions of a certifier.The Minister may, on the recommendation of the Board under this section and following consultation with the Minister administering theA council must comply with an order under this section that relates to the council.Despite any other provision of this Act, a council that is the subject of an order must not exercise any function of a certifier while the council’s authority to exercise that function is suspended by operation of the order.An order does not operate to suspend a council’s authority to exercise the functions of a certifier in relation to any matter being dealt with by the council as a certifier before the commencement of the order, unless the order provides otherwise.An order may contain provisions of a savings or transitional nature consequent on the suspension contained in the order.Without limiting subsection (6), an order may contain provisions for or with respect to the following—the way in which any pending matter being dealt with by the relevant council as a certifier is to be completed, including, for example, enabling the council to complete any such matter or providing for the matter to be completed by a certifier,directing any fee paid to the council to act as a certifier in relation to any pending matter to be refunded,directing the council to pay any fees required to be paid to a certifier to complete any pending matter being dealt with by the council as a certifier.The Minister must revoke an order if satisfied that the relevant council has implemented measures to address the matters that led to the making of the order.Nothing prevents the Minister from amending an order made under this section by another order, including amending the first order to change the functions of a certifier to which the first order relates.An order under this section must be in writing and published in the Gazette and takes effect on the day on which it is published in the Gazette or on a later day specified in the order.(Repealed)An order under this section may be made whether or not any action has been taken by the Minister under section 9.6 in relation to the exercise of all or any of the functions of the council concerned.
Gas and other petroleum activities—enforcement by EPA
(cf previous s 117BA)
Schedule 2A to the Protection of the Environment Operations Act 1997 (Enforcement of gas and other petroleum legislation) applies to this Act, and the operation of this Act is subject to that Schedule.
Enforcement of undertakings
(cf previous s 117C)
The Planning Secretary may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the Minister, the Planning Secretary or a public authority has a function under this Act.The person may withdraw or vary the undertaking at any time, but only with the consent in writing of the Planning Secretary. The consent of the Planning Secretary is required even if the undertaking purports to authorise withdrawal or variation of the undertaking without that consent.The Planning Secretary may apply to the Court for an order under subsection (4) if the Planning Secretary considers that the person who gave the undertaking has breached any of its terms.The Court may make all or any of the following orders if it is satisfied that the person has breached a term of the undertaking—an order directing the person to comply with that term of the undertaking,an order directing the person to pay to the State an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach,any order that the Court thinks appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach,an order requiring the person to prevent, control, abate or mitigate any actual or likely damage to the built or natural environment caused by the breach,an order requiring the person to make good any actual or likely damage to the built or natural environment caused by the breach,any other order the Court considers appropriate.A public authority may recommend that the Planning Secretary accept an undertaking under this section that the public authority has negotiated with a person proposing to give the undertaking in connection with a function of the public authority under this Act. The Planning Secretary may delegate to the public authority the function of applying to the Court for an order under subsection (4) in relation to the undertaking.
Appointment of planning administrator or regional panel
(cf previous s 118)
The Minister may appoint a planning administrator or a regional panel (or all of them) to exercise functions of a council if—the Minister is of the opinion that the council has failed to comply with its obligations under the planning legislation, orthe Minister is of the opinion that the performance of a council in dealing with planning and development matters (or any particular class of such matters) is unsatisfactory because of the manner in which the council has dealt with those matters, the time taken or in any other respect, orthe council agrees to the appointment, orIndependent Commission Against Corruption Act 1988 recommends that consideration be given to the appointment because of serious corrupt conduct by any of the councillors in connection with the exercise or purported exercise of functions conferred or imposed on the council by or under this Act.a report referred to in section 74C of theA planning administrator may be appointed to exercise all or any particular function or class of functions of the council under this Act.A regional panel may be appointed to exercise only all or any particular function or class of functions of the council—as a consent authority, orin relation to the preparation, making and approval of development control plans, orin relation to the preparation and approval of contributions plans.A regional panel may not exercise the functions of a council for a continuous period of more than 5 years.(Repealed)A planning administrator is to be appointed by order of the Minister published on the NSW planning portal or on the NSW legislation website.Functions are to be conferred on a regional panel under this section by order of the Minister published in the Gazette or on the NSW legislation website.Before appointing a planning administrator, or conferring functions under this section on a regional panel, the Minister must notify the council concerned in writing of the proposed action (including the reasons for the proposed action) and request the council to show cause why the action should not be taken.The Minister must consider any written submissions made by the council within 21 days of notice being given under subsection (7B) and must not take action under this section earlier than 21 days after the notice is given.Before appointing a planning administrator, or conferring functions on a regional panel under this section, the Minister is to obtain the concurrence of the Minister for Local Government.The Minister may appoint a planning administrator, or confer functions on a regional panel under this section, for a reason set out in subsection (1)(b) only if the Minister has, by order published on the NSW planning portal or on the NSW legislation website, provided heads of consideration for the exercise of power under subsection (1)(b), and has taken any of those heads of consideration that are relevant into account.For orders under this subsection, see the Historical notes at the end of this Act.The Minister may take action under this section in the circumstances specified in subsection (1)(d) without conducting an inquiry but, in that case, the Minister is to inquire into the matter as soon as practicable with a view to confirming or revoking the appointment.The Minister must, as soon as reasonably practicable after appointing a planning administrator, or conferring functions on a regional panel under this section, make the reasons for that appointment publicly available.In this section—includes—a failure to carry into effect or enforce the provisions of this Act, an environmental planning instrument or a direction under section 3.33, 7.17 or 9.1, or(Repealed)without limiting paragraph (a), a failure to comply with a determination under section 3.34, orwithout limiting paragraph (a), a failure to provide access to and the use of staff and facilities to a planning body as required by or under this Act.means a Sydney district or regional planning panel.Independent Commission Against Corruption Act 1988) that may constitute a serious indictable offence, being conduct in connection with the exercise or purported exercise of the functions of a councillor.means corrupt conduct (within the meaning of the
Functions of planning administrators or regional panels
(cf previous s 118AB)
During the period of appointment, the planning administrator or regional panel—is to exercise the functions of the council under this Act that are specified in the order of appointment, andis, in the exercise of those functions, taken to be the council, andis to exercise those functions to the exclusion of the council except to the extent that the order of appointment provides otherwise, andis, in the exercise of those functions, to give priority to particular functions to the extent that the order of appointment so provides.Despite subsection (1), a planning administrator is not to enter into contracts in the exercise of the planning administrator’s functions except—with the consent of the Minister and the concurrence of the Minister for Local Government, orin the case of contracts for the appointment of staff—with the authority conferred by a regulation made under section 9.11.Subsection (1) has effect even if the appointment of the planning administrator is subsequently found not to have been validly made.
Costs of planning administrator
(cf previous s 118AC)
A council, the functions of which are exercised by a planning administrator, is to pay to the Planning Secretary out of the council’s consolidated fund, the remuneration and costs and expenses of the planning administrator.The Minister may do either or both of the following—exempt a council from payment of all or part of the remuneration and costs and expenses of the planning administrator,resolve any dispute as to the amount of any such remuneration, costs or expenses.
Council to assist planning administrator or Sydney district or regional planning panel
(cf previous s 118AD)
A council must, if directed to do so by the Minister, provide any of the following with such staff, facilities and documents as are specified in the direction—a planning administrator or Sydney district or regional planning panel appointed to exercise functions of the council,a staff member of any such planning administrator or Sydney district or regional planning panel,a member of any such panel.A member of a council, or a member of staff of a council, must not obstruct any of the persons in subsection (1)(a)–(c) in the exercise of his or her functions under this Division.Maximum penalty—10 penalty units.The general manager of a council must carry out any reasonable direction of the planning administrator relating to functions of the council being exercised by the planning administrator.Maximum penalty—10 penalty units.Before giving a direction under subsection (1), the Minister is to consult with the Minister for Local Government.
Annual report on activities of planning administrators and planning assessment panels
(cf previous s 118AE)
The Planning Secretary is, in the annual report of the Department, to report on the activities of planning administrators and planning assessment panels during the period covered by the annual report, including—the financial activities of planning administrators and planning assessment panels, andthe exercise of council functions by planning administrators and planning assessment panels.
(cf previous s 118AF)
The regulations may make provision for or with respect to the appointment and functions of a planning administrator or regional panel and, in particular, for or with respect to—the accommodation, if any, to be provided at the offices of the council for the planning administrator or regional panel and any other persons assisting the planning administrator or regional panel in the exercise of the planning administrator’s or regional panel’s functions, andthe appointment of staff by the planning administrator or regional panel to assist in the exercise of the planning administrator’s or regional panel’s functions.In this section—means a Sydney district or regional planning panel.
Protection for exercise of certain functions of Minister
(cf previous s 118AG)
This section applies to any function (a ) conferred or imposed on the Minister (including a delegate of the Minister) relating to the appointment of a planning administrator, or the conferral of functions on a Sydney district or regional planning panel, under this Division.The exercise by the Minister of any protected function may not be—challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings, orrestrained, removed or otherwise affected by any proceedings.Without limiting subsection (2), that subsection applies whether or not the proceedings relate to any question involving compliance or non-compliance, by the Minister (including a delegate of the Minister), with the provisions of this Division or the rules of natural justice (procedural fairness).Accordingly, no court of law or administrative review body has jurisdiction or power to consider any question involving compliance or non-compliance, by the Minister (including a delegate of the Minister), with those provisions or with those rules so far as they apply to the exercise of any protected function.This section has effect despite any provision of this Act or other legislation or any other law (whether written or unwritten).In this section—of functions includes—the purported exercise of functions, andthe non-exercise or improper exercise of functions, andthe proposed, apprehended or threatened exercise of functions.includes—proceedings for an order under section 9.46, andproceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, and
Investigative powers of departmental or council officers
(cf previous s 119A)
In this Division—means—means a person appointed as an investigation officer under this Division by the Planning Secretary (a ) or by a council (a ).means a purpose for which a power may be exercised under this Division.of premises means the person who has the management or control of the premises (including a tenant or other lawful occupant who is not the owner).includes plans, specifications, maps, reports, books and other documents (whether in writing, in electronic form or otherwise).includes the regulations.
Appointment of investigation officers
(cf previous s 119B)
The Planning Secretary or a council may appoint persons (including any class of persons) as investigation officers for the purposes of this Division.Because of the definition of , a person appointed by the Planning Secretary becomes a and a person appointed by the council becomes a .A person’s appointment as an investigation officer may be made generally, or made subject to conditions or restrictions or only for limited purposes.A person’s appointment as an investigation officer is to be made by written instrument (in the case of an individual appointment) or by notice published on the NSW planning portal or in the Gazette (in the case of the appointment of a class of persons).Every investigation officer is to be provided by the investigation authority with an identification card as an investigation officer.If persons of a class are appointed as investigation officers, they need not be provided with an identification card if the investigation authority is satisfied that they possess adequate identification as persons of that class.
Purposes for which powers under Division may be exercised
(cf previous s 119C)
A departmental investigation officer may exercise powers under this Division for any of the following purposes—enabling the Minister or the Planning Secretary to exercise their functions under this Act,determining whether there has been compliance with or a contravention of this Act, including any instrument, consent, approval or any other document or requirement issued or made under this Act,obtaining information or records for purposes connected with the administration of this Act,generally for administering this Act.A council investigation officer may exercise powers under this Division for any of the following purposes—enabling a council to exercise its functions under this Act,at the request of the Commissioner of Fire and Rescue NSW, determining whether or not adequate provision for fire safety has been made in or in connection with a building.Nothing in this Division affects any function under any other provision of this Act or under any other Act.
Powers of entry and search
Powers of investigation officers to enter premises
(cf previous s 119D)
An investigation officer may enter—any premises at which the officer reasonably suspects that any industrial, agricultural or commercial activities are being carried out—at any time during which those activities are being carried out there, andany other premises—at any reasonable time.An investigation officer may enter a part of premises used for residential purposes only—with the consent of the occupier, orunder the authority of a search warrant issued under this Division, orif it is necessary to do so to inspect work being carried out under a consent, approval or certificate under this Act, orif a building certificate has been sought under this Act and it is necessary to do so to inspect the premises for the purpose of issuing the certificate.An investigation officer may enter any premises under the authority of a search warrant issued under this Division.The power to enter premises authorises entry by foot or by means of a motor vehicle or other vehicle, or in any other manner.Reasonable force may be used to enter premises under this Division.An investigation officer may enter premises under this Division with the aid of such investigation officers, police officers or other persons as the investigation officer considers necessary.
Notice of entry of residential premises
(cf previous s 119E)
This section applies to the entry into any part of premises used for residential purposes only for the purpose of inspecting work being carried out under a consent, approval or certificate under this Act or for the purpose of issuing a building certificate sought in respect of the premises.An investigation officer or the investigation authority must give the owner or occupier of the premises written notice of the intention to enter the premises before a person authorised to enter premises under this Division does so.The notice must specify the day on which the person intends to enter the premises and must be given before that day.Notice is not required to be given—if entry to the premises is made with the consent of the owner or occupier of the premises, orif entry to the premises is made under the authority of a search warrant issued under this Division, orif entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, orif entry is required urgently and the case is one in which the investigation authority has authorised in writing (either generally or in the particular case) entry without notice.
Powers of investigation officers to do things at premises
(cf previous s 119F)
An investigation officer who lawfully enters premises may do anything that the officer thinks is necessary to be done for an investigation purpose, including (but not limited to) the following things—examine and inspect any works, plant or other article,take and remove samples,make such examinations, inquiries and tests as the officer thinks necessary,take such photographs, films, audio, video and other recordings as the officer thinks necessary,for the purpose of an inspection—open any ground and remove any flooring and take any measures that may be necessary to ascertain the character and condition of the premises and of any pipe, sewer, drain, wire or fitting, andrequire the opening, cutting into or pulling down of any work if the officer has reason to believe or suspect that anything on the premises has been done in contravention of this Act,take measurements, make surveys and take levels and, for those purposes, dig trenches, break up the soil and set up any posts, stakes or marks,require records to be produced for inspection,examine and inspect any records,copy any records,seize anything that the officer has reasonable grounds for believing is connected with an offence against this Act,do any other thing the officer is empowered to do under this Division.The power to seize anything connected with an offence includes a power to seize—a thing with respect to which the offence has been committed, anda thing that will afford evidence of the commission of the offence, anda thing that was used for the purpose of committing the offence.A reference to any such offence includes a reference to an offence that there are reasonable grounds for believing has been committed.
(cf previous s 119G)
An investigation officer may apply to an eligible issuing officer for the issue of a search warrant if the investigation officer believes on reasonable grounds that this Act is being or has been contravened at any premises.An eligible issuing officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an investigation officer named in the warrant—to enter the premises, andto exercise any function of an investigation officer under this Division.Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.Division 4 of Part 5 of theIn this section—
Care to be taken
(cf previous s 119H)
An investigation officer must do as little damage as possible in the exercise of a power to enter or search premises under this Division. The investigation authority must provide, if necessary, other means of access in place of any taken away or interrupted by an investigation officer.As far as practicable, entry on to fenced land is to be made through an existing opening in the enclosing fence. If entry by that means is not practicable, a new opening may be made in the enclosing fence, but the fence is to be fully restored when the need for entry ceases.
Notification of use of force
(cf previous s 119I)
An investigation officer who uses force for the purpose of gaining entry to premises must promptly advise the investigation authority.The investigation authority must give notice of the entry to such persons or authorities as appear to the investigation authority to be appropriate in the circumstances.
Powers to obtain information
Requirement to provide information and records
(cf previous s 119J)
An investigation officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the notice requires in connection with an investigation purpose.The notice must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.The notice may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.The person to whom any record is furnished under this section may take copies of it.If any record required to be furnished is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.An investigation officer may exercise a power under this section whether or not a power of entry is being or has been exercised.
Power of investigation officers to require answers and record evidence
(cf previous s 119K)
An investigation officer may require a person to answer questions in relation to a matter connected with an investigation purpose if the officer suspects on reasonable grounds—that it is necessary to require information about the matter for that purpose, andthat the person has knowledge of the matter.The investigation authority may require a corporation to nominate a director or officer of the corporation who is authorised to represent the corporation for the purposes of answering questions under this section.An investigation officer may, by notice in writing, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.The place and time at which a person may be required to attend is to be—a place or time nominated by the person, orif the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the investigation officer that is reasonable in the circumstances.An investigation officer may exercise a power under this section whether or not a power of entry is being or has been exercised.
Recording of evidence
(cf previous s 119L)
An investigation officer may cause any questions and answers to questions given under this Division to be recorded if the officer has informed the person who is to be questioned that the record is to be made.A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the investigation officer.A copy of any such record must be provided by the investigation officer to the person who is questioned as soon as practicable after it is made.A record may be made under this section despite the provisions of any other law.
Miscellaneous provisions applying to exercise of powers
(cf previous s 119M)
A person must not, without reasonable excuse, fail to comply with a requirement made of the person by an investigation officer in accordance with this Division.A person must not furnish any information or do any other thing in purported compliance with a requirement made under this Division that the person knows is false or misleading in a material respect.A person must not intentionally delay or obstruct an investigation officer in the exercise of the officer’s powers under this Division.(Repealed)Maximum penalty—Tier 3 monetary penalty.
Identification card to be produced
(cf previous s 119N)
An investigation officer who is exercising a function under this Division must produce the officer’s identification card, if requested to do so by a person affected by the exercise of the function.In this section, means an identification card issued under section 9.14(4) or identification of the kind referred to in section 9.14(5).
Assistance for investigation officers
(cf previous s 119O)
The investigation authority may, by notice in writing given to the owner or occupier of premises, require the owner or occupier to provide reasonable assistance and facilities to an investigation officer in the exercise of the officer’s powers under this Division. The notice is to specify the assistance and facilities to be provided and the time and manner in which they are to be provided.
(cf previous s 119P)
The State must compensate all interested parties for any damage caused by a departmental investigation officer (and a council must compensate all interested parties for any damage caused by a council investigation officer) in exercising a power of entering premises but not any damage caused by the exercise of any other power, unless the occupier obstructed or hindered the officer in the exercise of the power of entry.
Recovery of cost of entry and inspection
(cf previous s 119Q)
If, as a result of an inspection of premises under this Division by an investigation officer, the investigation authority requires any work to be carried out on or in the premises, the investigation authority may recover the reasonable costs of the entry and inspection from the owner or occupier of the premises.
(cf previous s 119R)
More than one notice under a provision of this Division may be given to the same person.A notice given under this Division may be revoked or varied by a subsequent notice or notices (including by extending the time for compliance with the notice).A notice may be given under this Division to a person in respect of a matter or thing even though the person is outside the State, or the matter or thing occurs or is located outside the State, so long as the matter or thing affects the environment of this State.
Provisions relating to requirements to furnish records or information or answer questions
(cf previous s 119S)
Warning to be given on each occasion A person is not guilty of an offence of failing to comply with a requirement under this Division to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.Self-incrimination not an excuse A person is not excused from a requirement under this Division to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.Information or answer not admissible if objection made However, any information furnished or answer given by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Division) if—the person objected at the time to doing so on the ground that it might incriminate the person, orthe person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.Records admissible Any record furnished by a person in compliance with a requirement under this Division is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.Further information Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Division is not inadmissible on the ground—that the record or information had to be furnished or the answer had to be given, orthat the record or information furnished or answer given might incriminate the person.
Fire brigades inspection powers
(cf previous s 119T)
An authorised fire officer may exercise the powers of an investigation officer under this Division for the purpose of inspecting a building to determine whether or not—adequate provision for fire safety has been made in or in connection with the building, orthe fire safety provisions prescribed for the purposes of this section by the regulations have been complied with.An authorised fire officer cannot inspect premises under this section (other than places of shared accommodation) for the purposes of determining whether or not adequate provision for fire safety has been made except—when requested to do so by the council of the area in which the building is located, orwhen requested to do so by a person who holds himself or herself out as the owner, lessee or occupier of the building, orwhen the Commissioner of Fire and Rescue NSW has received a complaint in writing that adequate provision for fire safety has not been made concerning the building.A council must, at the request of the Commissioner of Fire and Rescue NSW, make available a council investigation officer for the purposes of an inspection under this section, and the officer concerned is to be present during the inspection.The Commissioner of Fire and Rescue NSW must send a report of any inspection carried out under this section to the council concerned.This Division applies (subject to the regulations) to an authorised fire officer in the same way that it applies to a council investigation officer. For that purpose (and subject to the regulations), a reference in this Division to the investigating authority is taken to be a reference to the Commissioner of Fire and Rescue NSW.A council must, at the written request of the Commissioner of Fire and Rescue NSW, cause any building specified in the request to be inspected for the purpose of determining whether or not adequate provision for fire safety has been made in or in connection with the building. As soon as practicable after such an inspection has been carried out, the council must send a report of the inspection to the Commissioner.
(cf previous s 119U)
The regulations may confer on an accredited certifier specified powers of a council investigation officer under this Division for the purpose of exercising functions under this Act as an accredited certifier.This Act applies (subject to the regulations) to any such accredited certifier in the same way that it applies to a council investigation officer.
Development control orders
Orders that may be given
(cf previous s 121B)
The development control orders that may be given under this Act are as follows—general orders in accordance with the table to Part 1 of Schedule 5,fire safety orders in accordance with the table to Part 2 of Schedule 5,brothel closure orders in accordance with the table to Part 3 of Schedule 5.The regulations may amend those tables.A reference in those tables to a is a reference to a development consent, an approval for State significant infrastructure or a certificate under Part 6 (other than a compliance certificate).See also Part 4 of the Building Products (Safety) Act 2017.
Relevant enforcement authorities who may give orders
(cf previous ss 121B, 121C)
Development control orders may be given by the following (a )—the Minister or the Planning Secretary, but only in connection with State significant development, State significant infrastructure or any other development for which the Minister, the Planning Secretary or the Independent Planning Commission is or has been the consent authority,a council,a consent authority (not being the Independent Planning Commission, a Sydney district or regional planning panel, a council or an accredited certifier), but only in connection with development for which the authority is or has been the consent authority,Fire and Rescue NSW Act 1989 to give fire safety orders (an ),in the case of fire safety orders (and without limiting the authority of other persons or bodies to give those orders)—the Commissioner of Fire and Rescue NSW or a member of staff of Fire and Rescue NSW, or a member of a permanent fire brigade, who is for the time being authorised by the Minister administering thein the case of brothel closure orders (and without limiting the authority of other persons or bodies to give those orders)—a person or body exercising planning or regulatory functions in respect of the area in which the premises are situated and authorised by the Minister to give brothel closure orders,A development control order in connection with State significant infrastructure may be given only by the Minister or the Planning Secretary.A development control order cannot be given in respect of the following land unless the written consent of the Minister has first been obtained—A copy of any development control order given by a relevant enforcement authority other than a council is to be provided by that authority to the council for the area concerned.
Provisions relating to orders
(cf previous s 121B)
Part 4 of Schedule 5 contains provisions relating to the giving of orders and related matters.
Failure to comply with order—offence
(cf previous s 125)
A person to whom a development control order is given or is taken to have been given must comply with the terms of the order.It is a sufficient defence to a prosecution for an offence against this section if the defendant satisfies the court that the defendant was unaware of the fact that the matter in respect of which the offence arose was the subject of an order.Maximum penalty—Tier 1 monetary penalty.For civil enforcement—see Division 9.5.Schedule 5 provides that a development control order that is given to a person binds a successor in title or occupation of the land concerned and is taken to have been given to the successor. Information about outstanding orders can be obtained under this Act by prospective successors.
Monitoring and environmental audits
Application of Division
(cf previous s 122A)
This Division applies to—the carrying out of State significant development that has development consent under Part 4, andthe carrying out of State significant infrastructure approved under Division 5.2, andthe carrying out of a project that was approved under Part 3A when that Part was in force or continued in operation.In this Division, any such development, infrastructure or project is referred to as a project.(Repealed)This Division does not affect the other provisions of this Act.
Nature of monitoring and environmental audits
(cf previous s 122B)
For the purposes of this Division, of a project is the monitoring of the carrying out of the project to provide data on compliance with the approval of the project or on the project’s environmental impact.For the purposes of this Division, an of a project is a periodic or particular documented evaluation of an approved project to provide information to the proponent of the project and to the persons administering this Act on compliance with the approval of the project or on the project’s environmental management or impact.A reference in this section to compliance with the approval of a project includes a reference to compliance with—the conditions to which the approval of the project is subject, andthe requirements of this Act and of relevant provisions of any other Act referred to in Division 5.2.
Minister may require monitoring or environmental audits by imposition of conditions on approved projects
(cf previous s 122C)
The Minister may, by the imposition of conditions on the approval for a project, require monitoring or an environmental audit or audits to be undertaken to the satisfaction of the Minister by the proponent of the project.A condition requiring monitoring or an environmental audit—may be imposed at the time of the approval of the project or at any time afterwards, andmay be varied or revoked at any time.The imposition of a condition after the approval of a project, or the variation or revocation of a condition, is to be effected by a notice in writing served on the proponent of the project by the Minister.(Repealed)
Provisions relating to conditions for monitoring and environmental audits
(cf previous s 122D)
A condition requiring monitoring may require—the provision and maintenance of appropriate measuring and recording devices for the purposes of the monitoring, andthe analysis, reporting and retention of monitoring data, andcertification of the monitoring data (including the extent to which the terms and conditions of any approval have or have not been complied with).A condition requiring an environmental audit must specify the purpose of the audit. Such a condition may require—the conduct of the audit by the proponent or by an independent person or body approved by the Minister or the Planning Secretary (either periodically or on particular occasions), andpreparation of written documentation during the course of the audit, andpreparation of an audit report, andcertification of the accuracy and completeness of the audit report, andproduction to the Minister of the audit report.
Offences relating to monitoring and environmental audits
(cf previous s 122E)
False or misleading information in monitoring or audit report A person must not include information in (or provide information for inclusion in)—a report of monitoring data, orif the person knows that the information is false or misleading in a material respect.an audit report produced to the Minister in connection with an environmental audit,Information not included in monitoring or audit report The proponent of an approved project must not fail to include information in (or provide information for inclusion in)—a report of monitoring data, orif the proponent knows that the information is materially relevant to the monitoring or audit.an audit report produced to the Minister in connection with an environmental audit,Retention of monitoring data or audit documentation The proponent of an approved project must—retain any monitoring data in accordance with the relevant condition of the approval for at least 5 years after it was collected, andretain any documentation required to be prepared by the proponent in connection with an environmental audit for a period of at least 5 years after the audit report concerned was produced to the Minister, andproduce during that period any such documentation on request to a departmental investigation officer under Division 9.2.(Repealed)Maximum penalty—Tier 3 monetary penalty.
Self-incriminatory information and use of information
(cf previous s 122F)
Information must be supplied by a person in connection with a report of monitoring or an environmental audit, and this Division applies to any such information that is supplied, whether or not the information might incriminate the person.Any information in monitoring data or in an audit report or other documentation supplied to the Minister in connection with an environmental audit may be taken into consideration by the Minister and used for the purposes of this Act.Without limiting the above, any such information—is admissible in evidence in any prosecution of the proponent of an approved project for any offence (whether under this Act or otherwise), andmay be disclosed by the Minister by publishing it in such manner as the Minister considers appropriate.
Civil enforcement proceedings
(cf previous s 122)
In this Division—a reference to a breach of this Act is a reference to—a contravention of or failure to comply with this Act, anda threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, anda reference to this Act includes a reference to the following—the regulations,an environmental planning instrument,a consent granted under this Act, including a condition subject to which a consent is granted,a complying development certificate, including a condition subject to which a complying development certificate is granted,a development control order,a planning agreement referred to in section 7.4.
Restraint etc of breaches of this Act
(cf previous s 123)
Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.(Repealed)
Orders of the Court
(cf previous s 124)
Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.Without limiting the powers of the Court under subsection (1), an order made under that subsection may—where the breach of this Act comprises a use of any building, work or land—restrain that use,where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, orwhere the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may—adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, andin its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.
Evidence of use of premises as backpackers’ hostel
(cf previous s 124AA)
This section applies to proceedings before the Court under this Act to remedy or restrain a breach of this Act in relation to the use of premises as a backpackers’ hostel.In any proceedings to which this section applies, the Court may rely on circumstantial evidence to find that particular premises are used as a backpackers’ hostel.Examples of circumstantial evidence include (but are not limited to) the following—evidence relating to persons entering and leaving the premises (including the depositing of luggage) that is consistent with the use of the premises for a backpackers’ hostel,evidence of the premises being advertised expressly or implicitly for the purposes of a backpackers’ hostel (including advertisements on or in the premises, newspapers, directories or the Internet),evidence relating to internal and external signs and notices at the premises (including price lists, notices to occupants and offers of services) that is consistent with the use of the premises for a backpackers’ hostel,evidence of the layout of rooms, and the number and arrangement of beds, at the premises that is consistent with the use of the premises for a backpackers’ hostel.
Proceedings relating to use of premises as brothel
(cf previous s 124AB)
Application This section applies to proceedings before the Court to remedy or restrain a breach of this Act in relation to the use of premises as a brothel. Subsections (5) and (6) extend to any such proceedings in relation to all brothels within the meaning of the Restricted Premises Act 1943.Adjournments to obtain consent only in exceptional circumstances The Court may not adjourn the proceedings under section 9.46(3) unless it is of the opinion that the adjournment is justified because of the exceptional circumstances of the case. The fact that it is intended to lodge a development application, or that a development application has been made, is not by itself an exceptional circumstance.Time for making development application limited to 10 days If the Court adjourns the proceedings under section 9.46(3), the proceedings must be brought back before the Court if a development application is not made within 10 working days of the adjournment.Only one adjournment The Court may make only one adjournment under section 9.46(3) of particular proceedings.Finding may be made on circumstantial evidence In any proceedings—the Court may rely on circumstantial evidence to find that particular premises are used as a brothel, andthe Court may make such a finding without any direct evidence that the particular premises are used as a brothel.However, the presence in any premises of articles or equipment that facilitate or encourage safe sex practices does not of itself constitute evidence of any kind that the premises are used as a brothel.Examples of circumstantial evidence include (but are not limited to) the following—evidence relating to persons entering and leaving the premises (including number, gender and frequency) that is consistent with the use of the premises for prostitution,evidence of appointments with persons at the premises for the purposes of prostitution that are made through the use of telephone numbers or other contact details that are publicly advertised,evidence of information in books and accounts that is consistent with the use of the premises for prostitution,evidence of the arrangement of, or other matters relating to, the premises, or the furniture, equipment or articles in the premises, that is consistent with the use of the premises for prostitution.
Special provision where development consent tainted by corruption
(cf previous s 124A)
For the purposes of this section, a decision of a consent authority to grant or modify a development consent is tainted by corrupt conduct—Independent Commission Against Corruption Act 1988, recommends that consideration be given to the suspension of the development consent or modification with a view to its revocation because of serious corrupt conduct by the consent authority or by a councillor or other officer or member of staff of the consent authority in connection with the grant of the consent or modification, orif the Independent Commission Against Corruption, in a report referred to in section 74C of theif criminal proceedings are instituted against the consent authority or against a councillor or other officer or member of staff of the consent authority for serious corrupt conduct in connection with the grant of the consent or modification, orif the consent authority, councillor or other officer or member of staff makes an admission of such serious corrupt conduct.A breach of this Act that may be remedied or restrained in proceedings instituted under this Division includes a decision of a consent authority to grant or modify a development consent that is tainted by corrupt conduct.If a decision of a consent authority to grant or modify a development consent is tainted by corrupt conduct, the Minister may, without prior notice or inquiry, suspend the decision pending the institution and determination of proceedings under this Division in respect of the decision. The Minister is to give the consent authority and the applicant for the grant or modification of the development consent written notice of the suspension as soon as practicable after it is imposed.A suspension imposed by the Minister may be lifted by the Minister at any time and is taken to be lifted if the proceedings concerned are not instituted within 6 months after the suspension is imposed.The Court may, in proceedings to which this section applies, suspend the decision of a consent authority to grant or modify a development consent pending the determination of the proceedings. The Court may lift a suspension imposed by the Minister under this section.The Court may, in proceedings to which this section applies, revoke the decision of a consent authority to grant or modify a development consent if—the decision is tainted by corrupt conduct, andthe Court is satisfied that the revocation of the decision will not significantly disadvantage any person affected by the decision who was not a party to the corrupt conduct.The Court retains its discretion in proceedings to which this section applies as to whether to revoke a decision that is tainted by corrupt conduct.A development consent for the erection of a building, the carrying out of a work or the demolition of a building or work (or a modification of any such consent) is not to be suspended or revoked under this section if the building, work or demolition authorised by the consent (or by the modification) has been substantially commenced.Section 4.59 does not apply to proceedings to which this section applies.Compensation is not payable by the Minister or the State for any loss suffered by a person because—a decision is suspended under this section (whether or not the Court decides to revoke the decision), ora decision is revoked under this section.This section applies—to decisions made by a consent authority before or after the commencement of this section, andto serious corrupt conduct, and to criminal proceedings instituted or admissions made in respect of serious corrupt conduct, before or after that commencement.In this section—Independent Commission Against Corruption Act 1988) that may constitute a serious indictable offence.means corrupt conduct (within the meaning of the
Criminal offences and proceedings
Offences against this Act and the regulations
(cf previous s 125)
(Repealed)A person who—aids, abets, counsels or procures another person to commit, oran offence against this Act or the regulations arising under any other provision is guilty of an offence against this Act or the regulations arising under that provision and is liable, on conviction, to the same penalty applicable to an offence arising under that provision.conspires to commit,It is a sufficient defence to a prosecution for an offence that arises from the failure to comply with a development control order if the defendant satisfies the court that the defendant was unaware of the fact that the matter in respect of which the offence arose was the subject of an order.Unless the context otherwise requires, a requirement under this Act or the regulations that must be complied with by a particular time, or within a particular period, continues after the time has expired or the period ended, and so must still be complied with.
Maximum monetary penalty—Tier 1, Tier 2 or Tier 3
If, or is specified as the maximum monetary penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and liable to a monetary penalty not exceeding the relevant penalty specified in the following sections. If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
Maximum penalty—Tier 1
(cf previous s 125A)
If is specified as the maximum monetary penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and (subject to subsection (2)) liable to a penalty not exceeding—in the case of a corporation—$5 million, andfor a continuing offence—a further $50,000 for each day the offence continues, orin the case of an individual—$1 million, andfor a continuing offence—a further $10,000 for each day the offence continues.A Tier 1 maximum monetary penalty applies only if the prosecution establishes (to the criminal standard of proof)—that the offence was committed intentionally, andthat the offence—caused or was likely to cause significant harm to the environment, orcaused the death of or serious injury or illness to a person.For the Tier 1 maximum monetary penalty to apply, the court attendance notice or application commencing the proceedings must allege that those factors apply to the commission of the offence.If a Tier 1 maximum monetary penalty is specified in this Act but does not apply because of subsection (2), then a Tier 2 maximum penalty applies instead.If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
Maximum penalty—Tier 2
(cf previous s 125B)
If is specified as the maximum penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and liable to a penalty not exceeding—in the case of a corporation—$2 million, andfor a continuing offence—a further $20,000 for each day the offence continues, orin the case of an individual—$500,000, andfor a continuing offence—a further $5,000 for each day the offence continues.If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
Maximum penalty—Tier 3
(cf previous s 125C)
If is specified as the maximum penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and liable to a penalty not exceeding—in the case of a corporation—$1 million, andfor a continuing offence—a further $10,000 for each day the offence continues, orin the case of an individual—$250,000, andfor a continuing offence—a further $2,500 for each day the offence continues.If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.Section 10.13 provides that the regulations may create offences and impose a maximum monetary penalty for an offence against the regulations not exceeding $110,000.
Additional provisions relating to penalties
(cf previous s 126)
(Repealed)Protection of the Environment Operations Act 1997 (Court orders in connection with offences) applies to an offence against this Act or the regulations in the same way as it applies to an offence against that Act or the regulations under that Act, but only in relation to proceedings before the Court and subject to any modifications prescribed by the regulations under this Act.Part 8.3 of theAn offence under section 251 of that Act in relation to an order will become an offence against this Act.Where a person is guilty of an offence involving the destruction of or damage to a tree or vegetation, the court dealing with the offence may, in addition to or in substitution for any pecuniary penalty imposed or liable to be imposed, direct that person—to plant new trees and vegetation and maintain those trees and vegetation to a mature growth, andto provide security for the performance of any obligation imposed under paragraph (a).In determining the sentence for a person who has previously been found guilty of an offence that arises from a failure to comply with a brothel closure order within the meaning of Part 3 of Schedule 5 or the unlawful use of premises for the purposes of a brothel, a court must take into account the fact of the previous offence as an aggravating factor and is, accordingly, to impose a higher sentence than it would otherwise impose.
Proceedings for offences
(cf previous s 127)
Proceedings for an offence against this Act may be taken before the Local Court or before the Court in its summary jurisdiction.Proceedings for an offence against the regulations may be taken before the Local Court.If proceedings in respect of an offence against this Act are brought in the Local Court, the maximum monetary penalty that the court may impose in respect of the offence is, notwithstanding any other provisions of this Act, 1,000 penalty units or the maximum monetary penalty provided by this Act in respect of the offence, whichever is the lesser.If proceedings in respect of an offence against this Act are brought in the Court in its summary jurisdiction, the Court may impose a penalty not exceeding the maximum penalty provided by this Act in respect of the offence.Proceedings for an offence against this Act or the regulations may be commenced not later than 2 years after the offence was alleged to be committed.However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of—in relation to proceedings for an offence instituted by or with the consent of the Planning Secretary or a member of staff of the Department—any investigation officer who is a member of the staff of the Department, orin relation to proceedings for an offence instituted by or with the consent of a council or a member of staff of a council—any investigation officer who is a member of the staff of that council, orin relation to proceedings for an offence instituted by any other person—any investigation officer.In this subsection,means an investigation officer within the meaning of Division 9.2, whether or not the person has the functions of an investigation officer in connection with the offence concerned.If subsection (5A) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of any such investigation officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of any such investigation officer is the date specified in the information or application, unless the contrary is established.Criminal Procedure Act 1986 or any other Act.This section applies despite anything in the(Repealed)A person shall not be convicted of an offence against this Act or the regulations where the matter constituting the offence is, at the date upon which the conviction would, but for this subsection, be made—the subject of proceedings under section 9.45, which proceedings have not been concluded, orthe subject of an order made under section 9.46.Nothing in subsection (7) precludes a conviction being made where the proceedings referred to in paragraph (a) of that subsection are concluded otherwise than by the making of an order under section 9.46.
Penalty notices for certain offences
(cf previous s 127A)
An authorised person may serve a penalty notice on a person if it appears to the authorised person that the person has committed an offence under this Act or the regulations, being an offence prescribed by the regulations.A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay, within the time and to the person specified in the notice, the amount of penalty prescribed by the regulations for the offence if dealt with under this section.A penalty notice—may be served personally or by post, orif it relates to an offence involving the use of a vehicle, may be addressed to the owner (without naming the owner or stating the owner’s address) and may be served by leaving it on or attaching it to the vehicle.If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.Payment under this section is not regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.The regulations may—prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, andprescribe the amount of penalty payable for the offence if dealt with under this section, andprescribe different amounts of penalties for different offences or classes of offences, andprescribe different amounts of penalties for the same offence, including, in the case of a continuing offence, different amounts of penalties for different periods during which the offence continues.The amount of a penalty prescribed under this section for an offence must not exceed the maximum amount of penalty which could be imposed for the offence by a court.This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings which may be taken in respect of offences.In this section, means a person who is declared by the regulations to be an authorised person for the purposes of this section or who belongs to a class of persons so declared.