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Contents (1979 - 203)
Environmental Planning and Assessment Act 1979 No 203
Current version for 1 January 2018 to date (accessed 23 January 2018 at 03:17)
Schedule 6
Schedule 6 Savings, transitional and other provisions
(Section 159)
Part 1 Preliminary
1   Savings and transitional regulations
(1)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
any other Act that amends this Act
(2)  Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.
(3)  To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as:
(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b)  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
2   Performance-based conditions of consent
Section 91 (3B) extends to a condition imposed in the determination of a development application before the commencement of that subsection.
3   Determination of Crown development applications
Section 91A, as substituted by the Environmental Planning and Assessment (Amendment) Act 1994, applies to a development application made but not determined as at the date of commencement of Schedule 1 (3) to that Act.
3A   Application of amendment
(1)  The amendment made by the amending Act extends to the consents granted by Port Stephens Shire Council on 7 June 1978 and 28 March 1979 to RZM (Newcastle) Limited in respect of mineral sandmining on land comprised in Mining Leases 594, 1226 and 744 despite the decision of the Land and Environment Court in Paul Winn v Director-General of National Parks and Wildlife and RZM Pty Limited (No 40209 of 1995).
(2)  Subclause (1) re-enacts (with minor modifications) section 4 of the amending Act. Subclause (1) is a transferred provision to which section 30A of the Interpretation Act 1987 applies.
(3)  In this clause:
4   References to joint and multiple owners and lessees of land
Section 4 (12), as inserted by the Environmental Planning and Assessment Amendment Act 1996, is taken to have commenced on 1 September 1980.
5   Instruments controlling advertising
Section 26 (1) (g), as inserted by the Environmental Planning and Assessment Amendment Act 1996, extends to environmental planning instruments made, or in the course of preparation, before it was so inserted.
6   Relationship between instruments
Section 36, as inserted by the Environmental Planning and Assessment Amendment Act 1996, extends to environmental planning instruments that took effect before that section was so inserted.
7   Amendment of draft instruments
Part 3, as amended by an item of Schedule 1 to the Environmental Planning and Assessment Amendment Act 1996, extends to environmental planning instruments in the course of preparation before that item commenced.
8   Preparation of draft regional environmental plans
Sections 41 and 45, as amended by an item of Schedule 2 to the Environmental Planning and Assessment Amendment Act 1996, apply only to environmental studies and draft regional environmental plans if their preparation commences after that item commences.
9   Joint exhibition of development application and draft environmental planning instrument
Division 4B of Part 3 extends to a development application made to a consent authority but not finally determined before the commencement of that Division.
10   Compliance with non-discretionary development standards
Section 90A extends to a development application made to a consent authority but not finally determined before the commencement of that section.
11   Date from which development consent operates
A date endorsed pursuant to section 92 on a notice and described on the notice as the “date of consent” is taken to be the date from which the consent becomes effective and operates, if the date was so endorsed before sections 92 (2) and 93 (1) were amended by the Environmental Planning and Assessment Amendment Act 1996.
12   Existing uses
Section 106 (b), as inserted by the Environmental Planning and Assessment Amendment Act 1996, is taken to have commenced on 1 September 1980.
13   Modification of approvals under Division 4 of Part 5
Division 4 of Part 5, as amended by an item of Schedule 4 to the Environmental Planning and Assessment Amendment Act 1996, extends to approvals granted by the Minister under that Division before the commencement of that item.
14   Minister’s consent for certain proceedings
Section 127, as amended by the Environmental Planning and Assessment Amendment Act 1996, extends to proceedings for offences alleged to have been committed before the commencement of Schedule 5 to that Act.
16   Application of section 145B to acts or omissions before commencement
Section 145B extends to anything done or omitted to be done before the commencement of Schedule 1 [1] to the Environmental Planning and Assessment Amendment (Contaminated Land) Act 1996 if:
(a)  the thing was done or omitted to be done substantially in accordance with planning guidelines relating to contaminated land published before that commencement, and
(b)  those guidelines were notified in a manner that, had section 145C been in force, would have complied with subsection (1) of that section (whether or not the notification complied with subsection (2) of that section).
17   Validation of role of certain concurrence authorities
Anything done or omitted to be done before the commencement of the Environmental Planning and Assessment Amendment (Public Authorities) Act 1996 that would have been valid if this Act, as amended by the Environmental Planning and Assessment Amendment (Public Authorities) Act 1996, had been in force when the thing was done or omitted to be done is validated.
18   General saving
(1)  If anything done or commenced under a provision of this or any other Act that is amended or repealed by the Environmental Planning and Assessment Amendment Act 1997 has effect or is not completed immediately before the amendment or repeal of the provision and could have been done or commenced under a provision of such an Act if the provision had been in force when the thing was done or commenced:
(a)  the thing continues to have effect, or
(b)  the thing commenced may be completed.
(2)  This clause is subject to any express provision of this Act or the regulations on the matter.
18A   Saving of assumed concurrences
(1)  A notification given under section 81 before 1 July 1998 and in force immediately before that date is taken (until revoked) to be:
(a)  until 1 January 2001—a notice given under clause 51B of the Environmental Planning and Assessment Regulation 1994, and
(b)  on and from 1 January 2001—a notice given under clause 64 of the Environmental Planning and Assessment Regulation 2000.
(2)  This clause is taken to have commenced on 1 July 1998.
19   Effect of other savings and transitional provisions
Regulations made as referred to in clause 1 as a consequence of the enactment of the Environmental Planning and Assessment Amendment Act 1997 may have effect despite the terms of any savings or transitional provisions contained in this or any other Act, if the regulations so provide.
20   (Repealed)
21   Definitions
In this Part:
appointed day means the day appointed for the commencement of Schedule 1 to the amending Act by proclamation under section 2 of that Act.
Darling Harbour Development Area has the same meaning as Development Area in the 1984 Act.
the 1984 Act means the Darling Harbour Authority Act 1984.
22   Consent authority
(1)  The consent authority with respect to land in the Darling Harbour Development Area is the Minister.
(2)  Subclause (1) does not apply with respect to land in the Darling Harbour Development Area if a State environmental planning policy referred to in clause 26 (1) or a regional environmental plan or local environmental plan referred to in clause 26 (3) specifies a consent authority with respect to that land.
23   Development plans
(1)  The Darling Harbour Development Plan No 1 is taken to be a regional environmental plan, and may be amended and repealed accordingly.
(2)  A draft development plan for which an approval was in force under section 25 of the 1984 Act immediately before the appointed day is taken to be a draft regional environmental plan prepared under Division 3 of Part 3 of this Act.
(3)  Without limiting clause 1, a regulation referred to in that clause may make such amendments to the Darling Harbour Development Plan No 1 as are necessary to enable that plan to have effect as a regional environmental plan.
24   Permits
(1)  An application for a permit under the 1984 Act that had not been finally determined before the appointed day is to be dealt with under Part 5 of that Act as if the amending Act had not been enacted.
(2)  For the purposes of this clause, an application is not finally determined unless:
(a)  a permit is granted or refused and no appeal against the decision to grant or refuse the permit is made within 12 months after the date on which the permit is granted or refused, or
(b)  if such an appeal is made, the appeal is withdrawn or finally disposed of.
(3)  A permit under the 1984 Act, including a permit granted in accordance with this clause, is taken to be a development consent granted under this Act.
(4)  This Act applies to a development consent arising under this clause as if it had been granted when the permit referred to in subclause (3) was granted.
25   (Repealed)
26   Application of environmental planning instruments within Darling Harbour Development Area
(1)  Any State environmental planning policy that is expressed to apply:
(a)  to the whole of the State, or
(b)  to land within the Darling Harbour Development Area, or
(c)  to land of which the Darling Harbour Development Area forms part,
applies, in accordance with its provisions, to land within the Darling Harbour Development Area.
(2)  Any regional environmental plan, local environmental plan or deemed environmental planning instrument that was in force before the commencement of this clause does not apply to land within the Darling Harbour Development Area.
(3)  Subclause (2) does not prevent:
(a)  a regional environmental plan or local environmental plan made after the commencement of this clause from applying to land within the Darling Harbour Development Area, or
(b)  a regional environmental plan or local environmental plan made before the commencement of this clause from applying to land within the Darling Harbour Development Area as a consequence of an amendment to the plan made after that commencement.
27   Definitions
In this Part:
appointed day means the day appointed for the commencement of Schedule 1 to the amending Act by proclamation under section 2 of that Act.
approved scheme means the approved scheme for the purposes of the 1968 Act, as that scheme was in force immediately before the appointed day, and as amended from time to time in accordance with the regulations.
Sydney Cove Development Area has the same meaning as development area in the 1968 Act.
28   Consent authority
(1)  The consent authority with respect to land in the Sydney Cove Development Area is the Minister.
(2)  Subclause (1) does not apply to land in the Sydney Cove Development Area if a State environmental planning policy referred to in clause 32 (1) or a regional environmental plan or local environmental plan referred to in clause 32 (3) specifies a consent authority with respect to that land.
29   Carrying out of development
(1)  This clause applies to such land within the Sydney Cove Development Area as is not the subject of a local environmental plan.
(2)  Development of any kind may not be carried out on land to which this clause applies without development consent, subject to the provisions of any State environmental planning policy or regional environmental plan that allows development to be carried out on that land without development consent.
(3)  For the purposes of section 76A:
(a)  the approved scheme has effect as if it were an environmental planning instrument, and
(b)  subclause (2) has effect as if it were a provision of an environmental planning instrument.
Consequently, all development on land to which this clause applies must have development consent and must comply with the requirements of the approved scheme.
(4)  For the purposes of section 79C, the approved scheme has effect as if it were an environmental planning instrument.
(5)  The regulations may make provision for the amendment of the approved scheme.
30   Consents
(1)  An application for the consent of the Sydney Cove Redevelopment Authority under section 23 or 25 of the 1968 Act that had not been finally determined before the appointed day is to be dealt with under Part 4 of that Act as if the amending Act had not been enacted.
(2)  However, the application is to be dealt with by the Minister and not (subject to any delegation by the Minister under section 23) by the Sydney Cove Redevelopment Authority.
(3)  A consent under the 1968 Act, including a consent granted in accordance with this clause, is taken to be development consent granted under this Act.
(4)  This Act applies to development consent arising under this clause as if it had been granted when the consent referred to in subclause (3) was granted.
31   Power of Minister, corporation and Secretary to delegate functions
For the purposes of section 23, the Sydney Harbour Foreshore Authority is taken to be a council.
32   Application of environmental planning instruments within Sydney Cove Development Area
(1)  Any State environmental planning policy that is expressed to apply:
(a)  to the whole of the State, or
(b)  to land within the Sydney Cove Development Area, or
(c)  to land of which the Sydney Cove Development Area forms part,
applies, in accordance with its provisions, to land within the Sydney Cove Development Area.
(2)  Any regional environmental plan, local environmental plan or deemed environmental planning instrument that was in force before the commencement of this clause does not apply to land within the Sydney Cove Development Area.
(3)  Subclause (2) does not prevent:
(a)  a regional environmental plan or local environmental plan made after the commencement of this clause from applying to land within the Sydney Cove Development Area, or
(b)  a regional environmental plan or local environmental plan made before the commencement of this clause from applying to land within the Sydney Cove Development Area as a consequence of an amendment to the plan made after that commencement.
32A   Definitions
(1)  In this Part:
existing Part 5 approval means a Part 5 approval granted before the commencement of this clause and in force immediately before that commencement.
Part 5 approval means an approval (however described or arrived at) within the meaning of Part 5 relating to a ski resort area.
ski resort area means an area of land within the national park reserved for the time being under the National Parks and Wildlife Act 1974, and known as Kosciuszko National Park, that is identified for the purposes of this clause by the Minister by order published in the Gazette.
(2)  An order may be made for the purposes of the definition of ski resort area only with the concurrence of the Minister for the Environment.
32B   Transitional regulations relating to ski resort areas in Kosciuszko National Park
The regulations may make provision, in relation to a ski resort area, for or with respect to the following:
(a)  savings and transitional matters arising from development consent being required by an environmental planning instrument for any activity within a ski resort area that did not previously require development consent,
(b)  converting any existing Part 5 approval into a current development consent,
(c)  converting any certificate, permission or other authority given for the purposes of an existing Part 5 approval (or any requirement for such a certificate, permission or other authority) into a Part 4A certificate (or into a requirement for a Part 4A certificate),
(d)  authorising the Secretary to issue a certificate certifying that any existing Part 5 approval, certificate, permission or other authority is to be treated as a current development consent or a Part 4A certificate,
(e)  providing that any activity carried out in a ski resort area in accordance with any specified instrument, or any instrument of a specified class, in existence immediately before the commencement of this clause, is taken to be carried out in accordance with a development consent,
(f)  enabling anything lodged in connection with an application for a Part 5 approval that has been lodged before the commencement of this clause, but not determined before that commencement, to be accepted as lodged in connection with an application for a development consent,
(g)  any matter that is ancillary or incidental to, or otherwise related to, a matter referred to in any of the preceding paragraphs, but only to the extent to which the matter relates to an activity or development in a ski resort area.
32C   Modification of Act with respect to ski resort areas
(1)  The regulations may modify the application of any provision of this Act to or in respect of a ski resort area, but only in relation to:
(a)  the person or authority to be responsible for exercising any function, or complying with any requirement, under this Act, under any existing Part 5 approval converted by regulations under this Part or under any certificate, permission or other authority given for the purposes of any such approval, and
(b)  the way in which such functions are to be exercised or such requirements are to be complied with.
(2)  Despite any other provision of this Act:
(a)  the Minister is the consent authority for all development applications relating to land within a ski resort area and a regulation made pursuant to this Part can not make a council responsible for exercising any other function referred to in subclause (1), and
(b)  a regulation may be made pursuant to this Part for or with respect to a ski resort area only on the recommendation of the Minister made after consultation with the Minister for the Environment, and
(c)  a State environmental planning policy may be made for or with respect to a ski resort area only on the recommendation of the Minister made after consultation with the Minister for the Environment, and
(d)  any other environmental planning instrument for or with respect to a ski resort area may be made by the Minister only after consultation with the Minister for the Environment.
If the Minister recommends that any such regulation or State environmental planning policy be made, or makes any such other environmental planning instrument, against the advice of the Minister for the Environment, the Minister is to publish the reasons for making the recommendation or instrument in the same Gazette as that in which the regulation, policy or instrument is published.
(3)  When consulting with the Minister about whether a recommendation should be made for the making of a regulation or State environmental planning policy, and about whether any other environmental planning instrument should be made, for or with respect to a ski resort area, the Minister for the Environment must take into account whether the proposed regulation, policy or instrument:
(a)  promotes the objects of the National Parks and Wildlife Act 1974, and
(b)  is consistent with the plan of management under that Act for the land concerned.
32D   Application of Chapter 7 of Local Government Act 1993 to ski resort areas
(1)  Except as may otherwise be provided by the regulations, Chapter 7 of the Local Government Act 1993 does not apply to or in respect of a ski resort area.
(2)  A regulation made for the purposes of this clause may modify the application of any provision of Chapter 7 of the Local Government Act 1993 to or in respect of a ski resort area.
32E   Effect of certain regulations
To remove any doubt, a regulation made pursuant to this Schedule can not have the effect of making any provision prevail over the National Parks and Wildlife Act 1974.
32F   State of the environment report
(1)  The Secretary is to present to the Minister a report as to the state of the environment in each ski resort area on each second anniversary of the day on which this clause commenced.
(2)  Section 428 (2) (c) of the Local Government Act 1993 applies to the content of a state of the environment report under this clause, except that references in that paragraph to a council are to be read as references to the Department and the National Parks and Wildlife Service.
(3)  Copies of each report must be furnished to such persons and bodies as are prescribed under section 428 (3) of the Local Government Act 1993.
33   Modification of development consents
An amendment made by Schedule 3 to the Environmental Planning and Assessment Amendment Act 1999 extends to a development consent granted before the commencement of the amendment.
34   Date from which consent operates
Section 83 (1) (b), as substituted by the Environmental Planning and Assessment Amendment Act 1999, extends to a development application made before the commencement of the substitution.
35   Building and construction industry long service levy
If a long service levy, or the first instalment of such a levy, has been paid under section 80 (10A) before its repeal, section 109F as amended by the Environmental Planning and Assessment Amendment Act 1999 does not apply in respect of the levy, or the first instalment of the levy.
36   Apportionment of liability
Section 109ZJ, as amended by the Environmental Planning and Assessment Amendment Act 1999, does not apply to or in respect of any development referred to in clause 34 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998.
37   Entry to residences for building certificate inspections
Section 118J, as amended by the Environmental Planning and Assessment Amendment Act 1999, extends to an application for a building certificate that was made before the commencement of the amendment.
37A   Compensation
(1)  To remove any doubt, the Land Acquisition (Just Terms Compensation) Act 1991 does not apply to anything done or required to be done pursuant to a consent granted before or after 5 June 2000 (the commencement of the amending Act) in accordance with a provision referred to in section 7 (1) (a), (b) or (c) of the amending Act.
(2)  Subclause (1) re-enacts (with minor modifications) section 9 of the amending Act. Subclause (1) is a transferred provision to which section 30A of the Interpretation Act 1987 applies.
(3)  In this clause:
39   Pending applications for approvals for places of public entertainment
Any application for an approval under the Local Government Act 1993, as in force immediately before the commencement of this clause:
(a)  for use of a building or temporary structure as a place of public entertainment, or
(b)  for the installation of a temporary structure on land,
being an application that had been made, but not determined, before the commencement of this clause is to be determined under that Act as if the amending Act had not been enacted.
40   Conditions applying to places of public entertainment
(1)  Subject to the regulations under this Act, the conditions applying to the use of a building as a place of public entertainment:
(a)  pursuant to any regulation in force under the Local Government Act 1993, as in force immediately before the commencement of this clause, or
(b)  pursuant to any approval in force under Part 1 of Chapter 7 of the Local Government Act 1993, as in force immediately before the commencement of this clause, including an approval granted as referred to in clause 39, or
(c)  pursuant to any local policy in force under Part 3 of Chapter 7 of the Local Government Act 1993, as in force immediately before the commencement of this clause, or
(d)  pursuant to any exemption in force under the Local Government Act 1993, as in force immediately before the commencement of this clause,
continue to apply to the use of a building as a place of public entertainment as if those conditions were contained in regulations under this Act.
(2)    (Repealed)
(3)  This clause does not authorise the use of a building as a place of public entertainment if, apart from this clause, the building may not lawfully be used for that purpose under this Act.
(4)  This clause ceases to have effect 2 years after the date on which it commences.
41   Conditions applying to installation of temporary structures
(1)  Subject to the regulations under this Act, the conditions applying to the installation of a temporary structure on land:
(a)  pursuant to any regulation in force under the Local Government Act 1993, as in force immediately before the commencement of this clause, or
(b)  pursuant to any approval in force under Part 1 of Chapter 7 of the Local Government Act 1993, as in force immediately before the commencement of this clause, including an approval granted as referred to in clause 39, or
(c)  pursuant to any local policy in force under Part 3 of Chapter 7 of the Local Government Act 1993, as in force immediately before the commencement of this clause, or
(d)  pursuant to any exemption in force under the Local Government Act 1993, as in force immediately before the commencement of this clause,
continue to apply to the installation of a temporary structure on land as if those conditions were contained in regulations under this Act.
(2)  This clause does not authorise the installation of a temporary structure on land if, apart from this clause, such a structure may not lawfully be installed on the land under this Act.
(3)  This clause ceases to have effect 2 years after the date on which it commences.
42   Bush fire prone land
(1)  The following land within the area of a council is taken to be bush fire prone land for the area of the council until a bush fire prone land map for the area has been certified by the Commissioner of the NSW Rural Fire Service under section 146:
(a)  land that is within, or within 100 metres of, a high or medium bush fire hazard that is identified on a hazard map prepared for the purposes of a bush fire risk management plan applying to the land, and
(b)  land within, or within 30 metres of, a low bush fire hazard that is identified on a hazard map prepared for the purposes of a bush fire risk management plan applying to the land.
(2)  In this clause:
bush fire risk management plan has the same meaning as it has in the Rural Fires Act 1997.
43   Definition
In this Part, the 2002 amending Act means the Building Legislation Amendment (Quality of Construction) Act 2002.
44   Status of certain committees
A committee referred to in section 20 or 22 is taken from the time of its constitution to have been a statutory body representing the Crown.
45   Delegations
Any authorisation granted to the Director-General under clause 199 of the Environmental Planning and Assessment Regulation 2000 that was in force immediately before the commencement of section 23 (1A), as inserted by the 2002 amending Act, is taken to be a delegation under section 23 (1), and may be subdelegated accordingly.
46–56   (Repealed)
57   Exclusion of personal liability
Section 158, as inserted by the 2002 amending Act, extends to matters arising before the commencement of that section.
58–60   (Repealed)
61   Definition
In this Part, the 2003 amending Act means the Statute Law (Miscellaneous Provisions) Act 2003.
62   Modification of development consents—generally
Section 96 (8), as in force before the amendment made to that subsection by the 2003 amending Act, applies in respect of an application for a modification of a development consent made before the commencement of that amendment.
63   Modification by consent authorities of development consents granted by the Court
(1)  Section 96AA (1A) and (1B), as inserted by the 2003 amending Act, apply only in respect of an application for a modification of a development consent made on or after the commencement of those subsections.
(2)  Section 96AA (1C), as inserted by the 2003 amending Act, extends to a modification (of a development consent) granted before the commencement of that subsection.
64   Lapsing of development consents for State significant development
Section 95B, as inserted by the Environmental Planning and Assessment Amendment (Development Consents) Act 2003, extends to the following:
(a)  any development consent granted pursuant to State Environmental Planning Policy No 34—Major Employment-Generating Industrial Development, or State Environmental Planning Policy No 48—Major Putrescible Landfill Sites, that was determined after 1 July 1998 by the operation of clause 18 or 19 of this Schedule,
(b)  any consent granted in response to an application for consent to State significant development made before, but not finally determined on, the commencement of this clause.
65   Voluntary surrender of development consents
Section 104A, as inserted by the Environmental Planning and Assessment Amendment (Development Consents) Act 2003, extends to a development consent granted before the commencement of the section.
66   Definition
In this Part, the 2003 amending Act means the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003.
67   Saving of appointment of Chairperson by Secretary
The substitution of section 22 (3) by the 2003 amending Act does not affect any appointment of a Chairperson under that provision as in force before the substitution.
68   Nature of construction certificate
Section 80 (12), as amended by the 2003 amending Act, extends to any variation to a construction certificate, plan or specification that lawfully occurred before the commencement of that amendment.
69   Commencement of development under development consents
Section 81A, as amended by the 2003 amending Act, extends to building work or subdivision work the subject of a development consent granted before the commencement of those amendments unless the work had begun before that commencement.
70   Commencement of development under complying development certificates
Section 86, as amended by the 2003 amending Act, extends to building work or subdivision work the subject of a complying development certificate issued before the commencement of those amendments unless the work had begun before that commencement.
71   Part 4A certificates
Section 109C (1A), as inserted by the 2003 amending Act, extends to matters arising before the commencement of that subsection.
72   Appointment of principal certifying authorities
Section 109E, as amended by the 2003 amending Act, extends to any development consent or complying development certificate issued before the commencement of those amendments for which a principal certifying authority needs to be appointed after that commencement.
73   Replacement of principal certifying authorities
Section 109EA, as inserted by the 2003 amending Act, extends to the replacement of a principal certifying authority who had been appointed before the commencement of that section.
74   Restriction on issue of occupation certificates
Section 109H (1B), as inserted by the 2003 amending Act, does not apply to any building work that commenced before that amendment.
75   Saving of occupation certificates
An occupation certificate issued in accordance with section 109H, as in force before it was amended by the 2003 amending Act, is taken to have been issued in accordance with that section, as so amended.
76   Previously suspended, withdrawn or lapsed accreditation
Section 109ZF (2), as inserted by the 2003 amending Act, extends to complaints that were made but not finally dealt with before the date of assent to that Act and to a person whose right to practise as an accredited certifier was suspended, or whose accreditation was withdrawn or lapsed, before that date.
77   Conflicts of interest
Section 109ZG (1AA), as inserted by the 2003 amending Act, extends to matters arising before the commencement of that subsection.
78   Investigation of certifying authorities
(1)  Subject to subclause (2), Division 1B of Part 6, as inserted by the 2003 amending Act, extends to matters arising before the commencement of that Division.
(2)  Section 109U, as in force immediately before its repeal by the 2003 amending Act, continues to apply to any investigation that had commenced before the repeal of that section as if that Act had not been enacted.
79   Proceedings for offences
Section 127 (5), as substituted by the 2003 amending Act, does not apply to offences arising before the commencement of that amendment.
80   Improper influence with respect to conduct of accredited certifier
Section 148A, as inserted by the 2003 amending Act, does not apply to conduct occurring before the commencement of that section.
81   Conditions of development consent
Clauses 98A and 98B of the Environmental Planning and Assessment Regulation 2000, as inserted by the 2003 amending Act, do not apply to work that had been commenced before the commencement of those clauses.
82   Conditions of complying development certificate
Clauses 136B and 136C of the Environmental Planning and Assessment Regulation 2000, as inserted by the 2003 amending Act, do not apply to work that had been commenced before the commencement of those clauses.
83   Time limits for accredited certifiers
The amendments to clauses 130, 138, 142, 151 and 160 of the Environmental Planning and Assessment Regulation 2000 made by the 2003 amending Act do not apply to any determination made under any of those clauses, or any certificate issued under any of those clauses, before the commencement of those amendments.
84   Definition
In this Part, 2005 amending Act means the Environmental Planning and Assessment Amendment (Development Contributions) Act 2005.
85   Application of amendments
The substitution of Division 6 of Part 4 of this Act by the 2005 amending Act does not affect anything done under that Division before its substitution, and anything so done is taken to have been done under the corresponding provision of that Division as so substituted.
Division 1 Preliminary
87   Savings and transitional regulations
Regulations made under Part 1 of this Schedule have effect despite anything to the contrary in this Part.
Division 2 Major infrastructure and other projects amendments
88   Pending or previous matters under Division 4 of Part 5
(1)  Despite its repeal by Schedule 1 to the 2005 Amending Act, Division 4 of Part 5 of this Act continues to apply to and in respect of the carrying out of any activity for which the Minister’s approval under that Division was sought before its repeal.
(2)  If the activity is a project to which Part 3A of this Act applies:
(a)  subclause (1) applies to the activity (unless the instrument that declares it a project otherwise provides), and
(b)  Part 3A of this Act does not apply to the activity while Division 4 of Part 5 of this Act continues to apply to the activity (subject to subclause (3)).
(3)  The approval of the Minister for an activity that was given under Division 4 of Part 5 of this Act before its repeal (or under that Division as continued by subclause (1)) is taken to be an approval under Part 3A of this Act, and that Part (sections 75U and 75V excepted) applies accordingly.
(4)  Until regulations are made under section 115P (3) (as substituted by the 2005 Amending Act), the provisions of Division 4 of Part 5 of this Act continue to apply (with necessary modifications) to approvals under that section of the Minister administering this Act.
89   State significant development matters
(1)  If a development application for State significant development is pending on the commencement of Part 3A of this Act, the application is to be determined (unless withdrawn by the applicant) as if the amendments made to this Act by Schedule 1 to the 2005 Amending Act had not been made.
(2)  A reference in any Act or instrument to State significant development within the meaning of this Act is taken to be a reference to a project to which Part 3A of this Act applies.
This subclause ceases to have effect on the repeal of Part 3A of the Act.
90   Special heritage provision with respect to Opera House
(1)  Section 75U (as inserted by the 2005 Amending Act), in so far as it excludes the requirement for an approval under Part 4 of the Heritage Act 1977, does not apply to the carrying out of any development in connection with the Opera House that is a project to which Part 3A applies.
(2)  In that case, section 75V applies instead as if an approval under Part 4 of the Heritage Act 1977 were included in section 75V (1).
Division 3 Planning instruments amendments
91   Review of SEPPs and REPs
(1)  The Minister may, by order published on the NSW legislation website, transfer any provisions of State environmental planning policies or regional environmental plans (with or without modification) to the principal local environmental plans for the local government areas to which the existing provisions apply.
(2)  Subclause (1) does not prevent an environmental planning instrument being made to transfer any of those existing provisions in respect of a particular local area.
(3)  The transfer of any of those existing provisions is taken to be a matter of State environmental planning significance for the purposes of this Act.
92   Standard instruments
The Secretary may issue a certificate under section 65 or furnish a report under section 69 (despite sections 65 (1A) and 69 (2), as inserted by the 2005 Amending Act) if the Secretary is satisfied that:
(a)  significant council resources have been expended in the preparation of the draft instrument before the prescription of the relevant standard instrument, or
(b)  the draft instrument makes a necessary amendment of a principal environmental planning instrument made before the prescription of the relevant standard instrument, or a necessary amendment of an instrument referred to in paragraph (a),
and the Secretary is satisfied that satisfactory arrangements have been made for the making of a replacement instrument in accordance with the relevant standard instrument.
93   Model provisions
(1)  Model provisions made under section 33 (as in force immediately before its repeal by the 2005 Amending Act) continue in force for the purposes of any existing environmental planning instruments that adopt those model provisions.
(2)  The Minister may, by order published in the Gazette, amend or revoke any of those model provisions, and section 33 (2) (as so in force) applies accordingly.
94   Development control plans
(1)  A development control plan made under section 51A or 72 and in force immediately before the repeal of that section by the 2005 Amending Act is taken to be a development control plan made under Division 6 of Part 3 (as inserted by that Act).
(2)  Section 74C (as inserted by the 2005 Amending Act) does not render invalid any provision of a development control plan that is continued in force by subclause (1) during the period until a development control plan is made under section 74C in respect of the land concerned.
(3)  Anything done under section 51A or 72 immediately before its repeal by the 2005 Amending Act in connection with a proposed development control plan is taken to have been done under Division 6 of Part 3 (as inserted by that Act).
(4)  Regulations made for the purposes of section 51A or 72 and in force immediately before the repeal of that section by the 2005 Amending Act are taken to have been made for the purposes of Division 6 of Part 3 (as inserted by that Act).
95   Master plans under existing instruments
(1)  This clause applies to any provision of an environmental planning instrument that is in force on the commencement of this clause and that requires, before the grant of development consent, a master plan (within the meaning of clause 92A of the Environmental Planning and Assessment Regulation 2000 as in force before its amendment by the 2005 Amending Act) for the land concerned.
(2)  While that provision continues in force, it is to be construed as requiring a development control plan under section 74D (as inserted by the 2005 Amending Act) with respect to the matters required to be included in the master plan, and in accordance with the procedures provided for making the master plan, by the environmental planning instrument.
(3)  Any master plan made under that provision before the commencement of this clause is taken to be a development control plan under section 74D (as inserted by the 2005 Amending Act).
96   Section 117 (2) directions
(1)  Directions given under section 117 (2) before the commencement of section 117 (2A) by the 2005 Amending Act cease to have effect on that commencement.
(2)  However, those directions continue in force for the purposes of any draft local environmental plan that is the subject of a certificate under section 65 issued before that commencement.
Division 4 Development consent amendments
97   Section 80 (5)—staged development conditional consents
(1)  The substitution of section 80 (5) by the 2005 Amending Act does not affect a condition of a development consent that requires another development consent before development may be carried out.
(2)  Section 95 (as in force immediately before the amendment of that section by the 2005 Amending Act) continues to apply to a development consent that is subject to such a condition.
98   Staged development applications as alternative to master plans
Section 83C (as inserted by the 2005 Amending Act) applies as if a reference in that section to a provision of an environmental planning instrument that requires a development control plan included a reference to any such provision made before the commencement of this clause that requires a master plan.
Division 5 Environmental assessment amendments
99   Application of section 111A (Exemptions)
Section 111A (as inserted by the 2005 Amending Act) extends to an activity that was carried out or began to be carried out before the commencement of that section.
100   Compliance certificates
(1)  Section 80A (10A) does not apply to a consent issued before the commencement of the subsection.
(2)  Section 85 (5A) does not apply to a complying development certificate issued before the commencement of the subsection.
101   Construction certificates
Section 109F (1A) does not apply to a construction certificate issued before the commencement of that subsection or in relation to building work or subdivision work that was physically commenced on the land to which the relevant development consent applies before the commencement of that subsection.
Part 19 Provisions consequent on enactment of Environmental Planning and Assessment Amendment Act 2006
102   Definition
In this Part:
103   Contributions plans
Section 94EA (2A), as inserted by the amending Act, does not affect a condition imposed under section 94 before the commencement of section 94EA (2A) and any such condition continues to have effect as if that subsection had not commenced.
104   Contributions for affordable housing
Section 94F (6), as inserted by the amending Act, does not affect a condition imposed under section 94F before the commencement of section 94F (6) and any such condition continues to have effect as if that subsection had not commenced.
105   Review
(1)  The Minister is to review Subdivision 4 of Division 6 of Part 4 of this Act to determine whether the policy objectives of that Subdivision remain valid and whether the terms of this Act remain appropriate for securing those objectives.
(2)  The review is to be undertaken as soon as possible after the period of 3 years from the date of assent to the amending Act.
(3)  A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 3 years.
106   Definition
In this Part:
107   Savings and transitional regulations
Regulations made under Part 1 of this Schedule have effect despite anything to the contrary in this Part.
108   Part 3A matters
(1)  The amendments made by Schedule 1 [3], [4] and [5] to the amending Act apply to declarations made (or purporting to be made) before the commencement of those amendments.
(2)  The amendment made by Schedule 1 [12] to the amending Act applies only to applications lodged after the commencement of the amendment.
(3)  The other amendments to Part 3A of this Act made by Schedule 1 to the amending Act extend to matters pending under Part 3A on the commencement of those amendments.
(4)  A concept plan that was submitted before the commencement of the amendments made by Schedule 1 [11], [21] and [29] to the amending Act may continue to be dealt with after that commencement as if it were an application for approval of a concept plan.
109   Planning agreements—exclusion of section 94 or 94A
Section 93F (3A), as inserted by the amending Act, applies only to a planning agreement that is entered into after the commencement of that subsection and that was the subject of public notice under section 93G after that commencement.
110   Contributions for public service or amenity outside NSW
Section 94CA, as inserted by the amending Act, extends to permit contributions provided for a public amenity or service, as a result of a condition allowed under a contributions plan that is in force before the commencement of that section, to be applied, with the written approval of the Minister, to an equivalent, similar or related public amenity or service.
111   Lapsing of consent
A development consent granted before the commencement of section 95 (6), as inserted by the amending Act, 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:
(a)  5 years after the date consent was granted, or
(b)  2 years after the date of the commencement of section 95 (6),
whichever is the later.
112   Occupation certificates
Section 109H, as substituted by the amending Act, does not apply to or in respect of an application for an occupation certificate made, but not determined, before that substitution and that section, as in force immediately before that substitution, continues to apply to and in respect of any such application.
113   Subdivision certificates
Section 109J, as substituted by the amending Act, does not apply to or in respect of an application for a subdivision certificate made, but not determined, before that substitution and that section, as in force immediately before that substitution, continues to apply to and in respect of any such application.
114   Reference of undetermined applications to the Minister
Section 116D, as amended by the amending Act, does not apply to an application made, but not determined, before that amendment and that section, as in force immediately before that amendment, continues to apply to any such application.
115   Negotiating determination of development application
Section 116E, as amended by the amending Act, does not apply to an application made, but not determined, before that amendment and that section, as in force immediately before that amendment, continues to apply to any such application.
116   Time limit for bringing proceedings
Section 127 (5A)–(5C), as inserted by the amending Act, apply only in respect of offences alleged to have been committed after the commencement of those subsections.
Division 1 Preliminary
117   Interpretation
In this Part:
118   Savings and transitional regulations
Regulations made under Part 1 of this Schedule have effect despite anything to the contrary in this Part.
Division 2 Provisions consequent on Schedule 1 to amending Act
119   Definitions
In this Division:
deemed environmental planning instrument means a former environmental planning instrument referred to in clause 2 of Schedule 3 to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979, and includes an instrument referred to in clause 3 (2) of that Schedule.
existing local environmental plan means a local environmental plan made under Part 3 of this Act (as in force immediately before the relevant commencement day).
existing regional environmental plan means a regional environmental plan made under Part 3 of this Act (as in force immediately before the relevant commencement day).
existing State environmental planning policy means a State environmental planning policy made under Part 3 of this Act (as in force immediately before the relevant commencement day).
the relevant commencement day means the day on which Schedule 1.1 [4] to the amending Act commences.
120   Continuation in force of existing SEPPs and REPs
All existing State environmental planning policies and existing regional environmental plans are, on the relevant commencement day, taken to be environmental planning instruments made by the Governor under Division 2 of Part 3 of this Act, as amended by the amending Act.
121   Review of existing REPs
(1)  As soon as practicable after the relevant commencement day, the Minister is to review the provisions of all existing regional environmental plans.
(2)  An environmental planning instrument (whether a principal or amending instrument) may be made by the Governor under Division 2 of Part 3 of this Act, or by the Minister under Division 4 of that Part, to transfer those existing environmental planning provisions (with or without modification) to appropriate new or existing principal instruments that apply to the land concerned.
(3)  Any such instrument may be made without compliance with the provisions of Part 3 of this Act relating to the conditions precedent to the making of the instrument.
122   Continuation in force of existing LEPs
(1)  All existing local environmental plans are, on the relevant commencement day, taken to be environmental planning instruments made by the Minister under Division 4 of Part 3 of this Act, as amended by the amending Act.
(2)  The Minister may dispense with any conditions precedent to the making of an environmental planning instrument under that Division if satisfied that the instrument was in the course of preparation before the commencement of this clause.
123   Continuation in force of deemed environmental planning instruments
(1)  All deemed environmental planning instruments that are in force immediately before the relevant commencement day continue in force and have effect according to their tenor.
(2)  Any such instrument may be amended or repealed by an environmental planning instrument made under Part 3 of this Act.
Division 3 Provisions relating to development assessment
124   Commissioners of Inquiry
(1)  A person who held office as a Commissioner of Inquiry immediately before the repeal of Division 4 of Part 2 by the amending Act ceases to hold office on that repeal.
(2)  A Commissioner of Inquiry is not entitled to any remuneration or compensation because of the loss of that office as a consequence of the amendments made by the amending Act.
125   Committees
(1)  A person who held office as a member of the Local Government Liaison Committee immediately before the repeal of Division 5 of Part 2 by the amending Act ceases to hold office on that repeal.
(2)  Any such member is not entitled to any remuneration or compensation because of the loss of that office as a consequence of the amendments made by the amending Act.
Division 5 Provisions relating to certification
133   Section 109ZK
The amendment made to section 109ZK by the amending Act does not apply to any building work or subdivision work commenced before the commencement of the amendment.
134   Repeal of Act
The repeal of the Bennelong Point (Parking Station) Act 1985 does not affect the carrying out of development authorised by that Act.
135   Restrictions on the issue of occupation or subdivision certificate
The amendments made by Schedule 1.13 [6] and [8] to the Statute Law (Miscellaneous Provisions) Act 2009 apply only in relation to an application for an occupation certificate or a subdivision certificate made on or after the commencement of those amendments.
136   Review and appeal changes
The amendments made to Part 4 of the Act by the Planning Appeals Legislation Amendment Act 2010 do not apply to or in respect of a development application lodged with a consent authority before the commencement of section 82B (as inserted by that amending Act).
137   Definitions
In this Part:
authorisation means an authorisation under section 24 of the Nation Building Act to carry out an infrastructure project.
Co-ordinator General means the NSW Infrastructure Co-ordinator General.
infrastructure project has the same meaning as in the Nation Building Act.
nation building consent means an authorisation declared to be a development consent under this Part.
138   Authorisations declared to be development consents
(1)  An authorisation is declared to be a development consent under this Act for the development comprising the infrastructure project if the Co-ordinator General has certified in writing that this Part applies to the project.
(2)  This Act, as modified by this Part and with any other necessary modifications, applies to a nation building consent as if it were a development consent granted under this Act and to any conditions of that consent as if they were conditions of a development consent.
(3)  A nation building consent is, for the purposes of this Act, taken to have been effective and to operate from the date the relevant authorisation was granted under the Nation Building Act.
(4)  For the purposes of this Act and any instrument made under this Act, the consent authority for a nation building consent is the council for the area in which the infrastructure project is situated or, if the project is situated in the Western Division, the Western Lands Commissioner.
(5)  In any instrument, a reference:
(a)  to an authorisation that has been declared by this Part to be a development consent under this Act is taken to be a reference to a development consent, and
(b)  to a condition of any such authorisation is taken to be a reference to a condition of the development consent, and
(c)  to the NSW Infrastructure Co-ordinator General in respect of any such development consent is taken to be a reference to the consent authority referred to in subclause (4).
139   Infrastructure projects taken to be exempt development
Development for the purposes of an infrastructure project is taken to be exempt development for the purposes of this Act if:
(a)  it is the subject of an order under section 23 (1) (a) of the Nation Building Act, and
(b)  an authorisation under section 24 of that Act was not required for the carrying out of the project, and
(c)  the Co-ordinator General has certified in writing that this Part applies to the project or a class of projects of which the project is a member.
140   Certification of infrastructure projects
(1)  The Co-ordinator General must notify the council of the area in which an infrastructure project is situated in writing if the Co-ordinator General certifies that this Part applies to the project, or a class of projects of which the project is a member.
(2)  The Co-ordinator General must keep a register of certificates given under this Part. The register is to be kept in the form and manner determined by the Co-ordinator General.
(3)  A council must keep a register of notices given under this clause for infrastructure projects situated in the area of the council.
(4)  A register kept by a council under this clause may form part of the register kept by the council under section 100.
(5)  Section 100 (2) applies to a register kept by a council under this clause.
(6)  If a council is given notice under this clause that this Part applies to an infrastructure project, or a class of projects of which an infrastructure project is a member, the council is not required to include advice about previous exemptions or authorisations under the Nation Building Act in any planning certificate issued for the land concerned under section 149 of this Act.
141   Application of EPA Act to nation building consents generally
(1)  Divisions 1–6A (other than section 81A), 8 and 10 of Part 4 of this Act, and sections 95, 95A, 96AA, 96A, 100 and 101, do not apply to a nation building consent except to the extent that any of those provisions are applicable because of the operation of section 96 in respect of a modification to the nation building consent.
(2)  Section 96 applies to a nation building consent with the following modifications:
(a)  the consent authority must not consider any provisions of an environmental planning instrument, proposed environmental planning instrument or development control plan insofar as they prohibit the proposed modification,
(b)  the consent authority must not refuse to consent to the application for modification on the ground that the application does not comply with non-discretionary development standards in a regulation or an environmental planning instrument, if the non-compliance is of a kind already permitted under the nation building consent,
(c)  section 96 (5) does not apply.
(3)  If a nation building consent relates to particular development for the purposes of an educational establishment, any other development for the purposes of an educational establishment is taken to be substantially the same development for the purposes of section 96.
(4)  If a nation building consent relates to particular development for the purposes of affordable housing or seniors housing, any other development for the purposes of residential accommodation (other than affordable housing or seniors housing) is taken not to be substantially the same development for the purposes of section 96.
142   Definition
In this Part:
143   Application of DCP amendments
(1)  The amendments made by Schedule 1 [1]–[3] and [5] to the amending Act extend to development control plans in force immediately before the commencement of those amendments.
(2)  Section 79C (3A), as inserted by the amending Act, does not apply to the determination of a development application made before the commencement of section 79C (3A).
145   Pending staged development applications and consents
(1)  A staged development application that, immediately before the commencement of the amending Act, was pending under Division 2A of Part 4 of this Act (as in force before the substitution of that Division by the amending Act) is, on and from that substitution, taken to be a concept development application under that Division (as so substituted), and may be dealt with accordingly.
(2)  A consent granted to a staged development application under Division 2A of Part 4 of this Act (as in force before the substitution of that Division by the amending Act) is, on and from that substitution, taken to be a consent granted to a concept development application under that Division (as so substituted), and has effect accordingly.
146   Validation
(1)  Anything done or omitted to be done before the commencement of the amending Act that would have been valid if this Act, as amended by the amending Act, had been in force when the thing was done or omitted to be done is validated.
(2)  However, subclause (1) does not render valid:
(a)  a development consent that was, before 30 June 2017, declared by a court to be invalid, or
(b)  a development application that was lodged after (and in reliance on) the grant of such a development consent.
147   Superseded references
A reference in any other Act or in any statutory or other instrument, or in any contract or agreement, to a staged development application under this Act is to be read as a reference to a concept development application under this Act.
148   Definitions
In this Part:
existing local panel means:
(a)  an independent hearing and assessment panel constituted by a relevant council, as at 1 September 2017, under section 23I (as in force before the substitution of that section by the amending Act), or
(b)  any other panel constituted by a relevant council, as at 1 September 2017, under the Local Government Act 1993 to advise on development applications or to determine development applications as a delegate of the council.
relevant council means:
(a)  the council of an area that is wholly within the Greater Sydney Region, and
(b)  the council of the City of Wollongong.
149   Existing local panels to continue as local planning panels
(1)  An existing local panel is taken to have been constituted by the relevant council as a local planning panel under section 23J (as substituted by the amending Act).
(2)  The members of the existing local panel (as at 1 September 2017) are taken to have been appointed by the relevant council as members of the local planning panel. Any such member may not be removed from office by the council without the approval of the Minister.
(3)  Subclause (2) ceases to have effect on 1 March 2018.
150   Interim arrangements for councils that do not have existing local panel
(1)  This clause applies in relation to a relevant council that has not constituted an existing local panel as at 1 September 2017.
(2)  A relevant council is not required to constitute a local planning panel under section 23J (as substituted by the amending Act) until 1 March 2018.
151   Regional panel amendments do not affect pending matters
The amendments made by the amending Act in relation to regional panels do not affect any application pending on the commencement of those amendments or any decision made under the Act before that commencement.
152   Extension of period for instituting local government election offences
The extension from 12 months to 3 years of the period within which proceedings for offences in connection with the conduct of local government elections may be commenced (as a consequence of the amendment to section 693 of the Local Government Act 1993 made by the amending Act) applies to offences committed after the commencement of the amending Act.
153   Savings and transitional regulations
(1)  This clause applies to regulations made under Part 1 of this Schedule that contain provisions of a savings or transitional nature consequent on the enactment of the amending Act.
(2)  The provisions of those regulations have effect despite anything to the contrary in this Part.
(3)  The regulations may make separate savings and transitional provisions or amend this Part to consolidate the savings and transitional provisions.