Environmental Planning and Assessment Regulation 2000
Historical version for 15 July 2001 to 13 December 2001 (accessed 3 August 2020 at 23:03) Current version
Part 6 Division 8
Division 8 Determination of development applications
92   What additional matters must a consent authority take into consideration in determining a development application?
(cf clause 66 of EP&A Regulation 1994)
(1)  For the purposes of section 79C (1) (a) (iv) of the Act, the following matters are prescribed as matters to be taken into consideration by a consent authority in determining a development application:
(a)  in the case of a development application for the carrying out of development:
(i)  in a local government area referred to in the Table to this clause, and
(ii)  on land to which the Government Coastal Policy applies,
the provisions of that Policy,
(b)  in the case of a development application for the demolition of a building, the provisions of AS 2601.
(2)  In this clause:
AS 2601 means the document entitled Australian Standard AS 2601—1991: The Demolition of Structures, published by Standards Australia, and as in force at 1 July 1993.
Government Coastal Policy means the publication entitled NSW Coastal Policy 1997: A Sustainable Future for the New South Wales Coast, as published by the Government (and including any maps accompanying that publication and any amendments to those maps that are publicly notified), a copy of which may be inspected during ordinary office hours:
(a)  at any of the offices of the Department, or
(b)  at the offices of any of the councils of the local government areas listed in the Table to this clause.
Table
Ballina
Bega Valley
Bellingen
Byron
Coffs Harbour
Copmanhurst
Eurobodalla
Gosford*
Great Lakes
Greater Taree
Hastings
Kempsey
Kiama
Lake Macquarie*
Lismore
Maclean
Maitland
Manly*
Nambucca
Newcastle*
Pittwater*
Port Stephens
Pristine Waters
Randwick*
Richmond Valley
Shellharbour*
Shoalhaven
Sutherland*
Tweed
Warringah*
Waverley*
Wollongong*
Woollahra*
Wyong*
Note.
 
The areas marked with asterisks are only affected by the seaward part of the Government Coastal Policy, being the area extending 3 nautical miles seaward from the open coast high water mark.
92A   Preliminary planning: sections 79C (1) (a) (iv) and 80 (11) of the Act
(1)  This clause applies to land if an environmental planning instrument made before or after the commencement of this clause provides, or has the effect of providing, that consent is not to be granted to a development application relating to the land unless:
(a)  a development control plan has been approved for the land, or
(b)  a contributions plan has been approved for the land, or
(c)  the development application is a comprehensive development application, or
(d)  there is a master plan for the land.
(2)  Pursuant to section 80 (11) of the Act, a development application relating to land to which this clause applies must not be determined by the consent authority granting consent (unconditionally or subject to conditions) unless:
(a)  a development control plan has been approved for the land, or
(b)  a contributions plan has been approved for the land, or
(c)  the development application is a comprehensive development application, or
(d)  there is a master plan for the land that has been available for inspection by the public since it was made or adopted,
as the case may require.
(3)  Subclause (2) does not prevent an environmental planning instrument from making provisions for or with respect to waiving the need for an approved development control plan or contributions plan, a comprehensive development application or a master plan.
(4)  For the purposes of section 79C (1) (a) of the Act, the provisions of any master plan for land to which this clause applies are prescribed as matters to be taken into consideration by the consent authority in determining a development application in respect of that land.
(5)  In this clause:
comprehensive development application means a development application that makes development proposals, in accordance with an environmental planning instrument, for all of the land identified in an environmental planning instrument as a development site.
master plan means a plan, whether it is referred to as a master plan, a development plan, a precinct plan or otherwise (but not an environmental planning instrument, a development control plan or a contributions plan):
(a)  that makes provisions for or with respect to the development of land, and
(b)  that has been made or adopted by the Minister or a public authority.
93   Fire safety considerations
(cf clause 66A of EP&A Regulation 1994)
(1)  This clause applies to a development application for a change of building use for an existing building, where the applicant does not seek the rebuilding, alteration, enlargement or extension of a building.
(2)  In determining the development application, the consent authority is to take into consideration whether the fire protection and structural capacity of the building will be appropriate to the building’s proposed new use.
(3)  Consent to the change of building use sought by a development application to which this clause applies must not be granted unless the consent authority is satisfied that the building complies (or will, when completed, comply) with such of the Category 1 fire safety provisions as are applicable to the building’s proposed new use.
Note.
 The obligation to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in relation to the relevant development consent.
(4)  Subclause (3) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4).
(5)  The matters prescribed by this clause are prescribed for the purposes of section 79C (1) (a) (iv) of the Act.
94   Consent authority may require buildings to be upgraded
(cf clause 66B of EP&A Regulation 1994)
(1)  This clause applies to a development application for development comprising the rebuilding, alteration, enlargement or extension of an existing building where:
(a)  the proposed building work, together with any other building work completed or authorised within the previous 3 years, represents more than half the total volume of the building, as it was before any such work was commenced, measured over its roof and external walls, or
(b)  the measures contained in the building are inadequate:
(i)  to protect persons using the building, and to facilitate their egress from the building, in the event of fire, or
(ii)  to restrict the spread of fire from the building to other buildings nearby.
(2)  In determining a development application to which this clause applies, a consent authority is to take into consideration whether it would be appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia.
(3)  The matters prescribed by this clause are prescribed for the purposes of section 79C (1) (a) (iv) of the Act.
95   Deferred commencement consent
(cf clause 67 of EP&A Regulation 1994)
(1)  A “deferred commencement” consent must be clearly identified as a “deferred commencement” consent (whether by the use of that expression or by reference to section 80 (3) of the Act or otherwise).
(2)  A “deferred commencement” consent must clearly distinguish conditions concerning matters as to which the consent authority must be satisfied before the consent can operate from any other conditions.
(3)  A consent authority may specify the period within which the applicant must produce evidence to the consent authority sufficient enough to enable it to be satisfied as to those matters.
(4)  The applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period.
(5)  If the applicant produces evidence in accordance with this clause, the consent authority must notify the applicant whether or not it is satisfied as to the relevant matters.
(6)  If the consent authority has not notified the applicant within the period of 28 days after the applicant’s evidence is produced to it, the consent authority is, for the purposes only of section 97 of the Act, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires.
Note.
 See also section 109O of the Act and clause 161 of this Regulation.
96   Imposition of conditions—ancillary aspects of development
(cf clause 67A of EP&A Regulation 1994)
(1)  If a consent authority grants development consent subject to a condition authorised by section 80A (2) of the Act with respect to an ancillary aspect of the development, the consent authority may specify the period within which the ancillary aspect must be carried out to the satisfaction of the consent authority, or a person specified by the consent authority, as referred to in that subsection.
(2)  The applicant may produce evidence to the consent authority, or to the person specified by the consent authority for the purpose, sufficient to enable it, or the person so specified, to be satisfied in respect of the ancillary aspect of the development.
(3)  For the purposes of section 80A (3) of the Act, the relevant period is the period of 28 days after the applicant’s evidence is produced to the consent authority or a person specified by the consent authority.
97   Modification or surrender of development consent or existing use right
(cf clause 68 of EP&A Regulation 1994)
(1)  A notice of modification or surrender of a development consent or existing use right, as referred to in section 80A (5) of the Act, must include the following information:
(a)  the name and address of the person by whom the notice is given,
(b)  the address, and formal particulars of title, of the land to which the consent or right relates,
(c)  a description of the development consent or existing use right to be modified or surrendered,
(d)  particulars as to whether the consent or right is to be modified (including details of the modification) or surrendered,
(e)  if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the modification or surrender of the consent or right.
(2)  A duly signed and delivered notice of modification or surrender of a development consent or existing use right:
(a)  takes effect when it is received by the consent authority, and
(b)  operates, according to its terms, to modify or surrender the development consent or existing use right to which it relates.
98   Compliance with Building Code of Australia and insurance requirements under Home Building Act 1989
(cf clauses 78 and 78A of EP&A Regulation 1994)
(1)  For the purposes of section 80A (11) of the Act, the following conditions are prescribed in relation to a development consent for development that involves any building work:
(a)  that the work must be carried out in accordance with the requirements of the Building Code of Australia,
(b)  in the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force.
(2)  This clause does not apply:
(a)  to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4), or
(b)  to the erection of a temporary building.
(3)  In this clause, a reference to the Building Code of Australia is a reference to that Code as in force on the date the application for the relevant construction certificate is made.